SCHOOL COMMITTEE OF LYNNFIELD vs. ARNOLD S. TRACHTMAN & others.

SCHOOL COMMITTEE OF LYNNFIELD vs. ARNOLD S. TRACHTMAN & others. [Note 1]

384 Mass. 813

December 17, 1981

We granted the plaintiff School Committee of Lynnfield's (committee) application for further appellate review to consider whether an arbitrator's award of $5,737 (the difference between what the defendant was actually paid and what he would have been paid as a full-time teacher for the 1977-1978 school year) to a teacher (Trachtman), whose position had been partially eliminated, exceeded the scope of the arbitrator's authority. [Note 2]

The Appeals Court determined that the collective bargaining agreement contained provisions concerning "wages, hours, and other terms and conditions of employment" (matters which may be subjects of collective bargaining), G. L. c. 150E, Section 6, inserted by St. 1973, c. 1078, Section 2 (formerly G. L. c. 149, Section 178I), and upheld the arbitrator's award of money damages. School Comm. of Lynnfield v. Trachtman, 11 Mass. App. Ct. 524 , 529-530 (1981). There was no error. "[T]he abolition of an employee's position, his transfer to a lesser position, and reduction of his salary involved his `wages, hours and other conditions of employment' within the meaning of [G. L. c. 150E, Section 6]" (emphasis supplied). School Comm. of Braintree v. Raymond, 369 Mass. 686 , 690 (1976). We conclude that the arbitrator's award of compensation "was within his powers, and it is separable from his unauthorized determination that" the committee's decision was arbitrable. Id. at 691. See Trustees of Boston & Me. Corp. v. Massachusetts Bay Transp. Auth., 363 Mass. 386 , 390 (1973). See also Grunebaum, Labor Law, 1976 Ann. Survey Mass. Law 157, 168. Since the award of compensation for a single year does not have the effect of compelling reinstatement to a full-time teaching position, it was not error for the Appeals Court to uphold the arbitrator's award. School Comm. of New Bedford v. New Bedford Educators Ass'n, 9 Mass. App. Ct. 793 , 802-803 (1980). Cf. School Comm. of Braintree v. Raymond, supra at 690; Doherty v. School Comm. of Boston, 363 Mass. 885 (1973).

In this court the committee argues that the award should be vacated because the collective bargaining agreement at issue had terminated prior to the effective date of the reduction. See School Comm. of Hanover v. Curry, 369 Mass. 683 (1976). The committee argues this fact for the first

Page 814

time on further appellate review. [Note 3] This it may not do. Additional facts cannot be added to the record in the appellate court. See Harvard v. Maxant. 360 Mass. 432 , 437 (1971); Coonce v. Coonce, 356 Mass. 690 , 693 (1970); Gorey v. Guarente, 303 Mass. 569 , 570 (1939), and cases cited. See also Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975). Nevertheless, the committee concedes that the agreement covering the 1977-1978 school year is "identical" with the prior agreement on this issue. We express the view that the result reached by the Appeals Court is correct. See School Comm. of Braintree v. Raymond, supra. [Note 4]

The order of the Superior Court confirming the arbitration award is to be modified to strike from the award the provision that the committee violated the contract by partially eliminating the position. Judgment is to be entered confirming the award as modified.

So ordered.

FOOTNOTES

[Note 1] The other defendants are the Lynnfield Teachers Association, and six named officers and representatives of the association.

[Note 2] The Appeals Court concluded that the portion of the arbitrator's award which determined that the committee could not partially eliminate a staff position exceeded the arbitrator's authority. School Comm. of Lynnfield v. Trachtman, 11 Mass. App. Ct. 524 , 527-529 (1981). On further appellate review both parties concede the correctness of that determination. We agree and do not discuss this issue. See Ford v. Flaherty, 364 Mass. 382 , 385, 386-387 (1973). Cf. Tobin v. Commissioner of Banks, 377 Mass. 909 (1979).

[Note 3] The committee devoted a single sentence in a footnote to this issue in its Appeals Court brief. "[I]t is doubtful whether [that footnote] complies with the rule that the argument in an appellant's brief `shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.' Mass. R. A. P. 16 (a) (4), [as amended, 367 Mass. 919 (1975)]." Beaton v. Land Court, 367 Mass. 385 , 389 (1975). See Manchester v. Department of Environmental Quality Eng'r, 381 Mass. 208 , 214 n.7 (1980); Lolos v. Berlin, 338 Mass. 10 , 14 (1958).

[Note 4] The committee has not requested that we reconsider that portion of Raymond entitled "Loss of compensation." See School Comm. of Braintree v. Raymond, 369 Mass. 686 , 690-691 (1976).