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SJC-13491.
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Boston Teachers Union, Local 66,
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v. Boston Public Schools.
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Okay, Attorney Pollard,
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whenever you're ready.
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Thank you, Your Honors.
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And may it please the court, my name is Nick Pollard
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and I represent the Boston Teachers Union.
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The union in this matter is entitled to the confirmation
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of an arbitration award at issue,
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which required the district to hire 18
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of a subcategory of paraprofessionals known
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as cluster paraprofessional substitutes.
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I'll be calling them cluster para subs for brevity's sake.
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The union argues, although it is not required
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to allege or prove non-compliance
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in order to achieve confirmation
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that it does have both in the instance of this case
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and that fundamentally it is only attempting
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to confirm an award that has not yet been complied with.
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The award in question, which was issued on July 28th of 2020
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included a very simple command.
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That command was the district hire
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and maintain 18 cluster para subs.
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It is based on a contract provision that is similarly simple
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that states the district shall hire
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18 cluster paraprofessional subs.
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The arbitrator in that award found that they had not.
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We argue and we believe that there was sufficient evidence
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before the Superior Court to suggest
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that they still have not complied with that award.
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Assuming we don't agree with you
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with respect to the ongoing dispute,
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tell me why Derwin was wrongly decided.
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I'm sorry?
Tell me why Derwin
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was wrongly decided, the First Circuit case.
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Ultimately, it relied on two cases
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that did not support the propositions
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for which they were cited.
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They attempted to use two cases to suggest
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that the shall/unless formulation of Section 10
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of Chapter 150C actually is a may/if.
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That there is a test
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that there must be prospective effect to the award,
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which by the way, our award does have,
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and that there must be no conceivable reason
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to not apply the award to a new dispute.
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The reason why that's an issue in this particular case,
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and the reason why Derwin should be ignored
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in this particular case is that there is no such new dispute
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to be distinguished or not
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between what the award stood for and its confirmation.
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There is only the same dispute
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that the district has failed to hire
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and maintain 18 cluster para-
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It's an easy case if we think
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that there's an ongoing dispute.
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I'm trying to get you to answer the other question
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about in the normal course of things,
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if there's no dispute, right,
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should we have these ministerial confirmations?
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That's really the issue,
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why we took the case to decide.
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Okay, and and I do believe the answer is
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still yes, Your Honor.
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Fundamentally, there need not be non-compliance
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for confirmation to be useful.
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There could be, for instance, contemplated non-compliance
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or a history of non-compliance with a particular employer.
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There could be a concern that down the road,
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this may not be complied with
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over an extended period of time.
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Non-compliance is the theme,
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but it doesn't necessarily have to be something
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that is true to fact in existence
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at the time of confirmation.
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in order for confirmation to have utility,
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Do we need to get there
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as far as whether it makes sense or not,
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if we just stick with the plain language?
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I'm sorry?
If we just stick
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with the plain language,
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we don't have to get to whether it makes sense.
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Correct, the plain language in my mind
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avoids this issue in its entirety
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and entitles us by right to confirmation irrespective
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of the new dispute issue.
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But so you both agree
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that the award is proper
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and there's no dispute.
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The arbitrator decided this
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and you both agree you're bound by it, right?
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Correct.
So by confirming,
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you're confirming something you agree on.
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We would-
Bear with me for a second.
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I apologize.
So, right?
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Is that right?
That is correct.
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So what we're really doing is we're shifting
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the form of the next fight
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and that seems to be what Durham
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or Derwin is concerned about,
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is that courts are gonna be
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now into the next,
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instead of the fight you're really having,
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which is okay, they can't get teachers to get this 18,
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which may be brought back to another arbitrator.
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That's gonna now be fought out in court.
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Isn't that what sort of driving Derwin,
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which is if you guys agree on things, don't come back to us.
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I think that that's an accurate description
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of what seemed to concern the Derwin court.
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But I think that this is inextricably linked
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to the issue of the new dispute.
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The concern with Derwin,
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and I think the Mass corrections officer's case too,
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was concerned about a union attempting
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to use an arbitration award
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to extend that award to a new fight
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that would more appropriately be brought
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before a new arbitrator because there are new facts
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and new facts that need to be found,
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potentially new contract violations that need to be found.
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That's the nub of this
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that makes this a difficult case
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because you're really not here
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to dispute what the arbitrator did.
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You're really here 'cause you won an award
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so that you'll go back to court
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to fight out the next fight, right?
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Well, the next fight, Your Honor, is the same fight
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that we had with Arbitrator Daly,
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which is that the district has failed to hire these folks.
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The only thing that's changed
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between now and then is the district's excuse
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for not hiring these folks.
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The facts-
Sorry to interrupt.
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Can you just talk through the practicalities
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of the meaning of,
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if we were to agree with you
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that Section 10 does allow for, and ignoring this dispute
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and going to Justice Kafker's question relating
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to how this is gonna work in general,
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what is the practical consequence
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of permitting trial courts,
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as Section 10 seems to say, to just confirm,
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at any point seemingly, just to confirm that this exists
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and reduce this to a court judgment?
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Can you talk about the practicalities of what that means,
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both in the ordinary case
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where there's not a new dispute
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and then when there is a new dispute?
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Sure, in the ordinary case where there is no new dispute,
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I think that there is something to be said
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for both sides as acknowledging the finality of an issue
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and it will maybe facilitate future bargaining
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if there remains an issue
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about the facilitation of that award.
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But, the trial court hasn't added anything new.
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The trial court has just entered a judgment, correct?
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Understood. Yes.
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So what does that do in the world?
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Well, when there is no dispute,
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it would largely do nothing.
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Well, wouldn't it allow for contempt?
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Isn't that the whole point?
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It would allow for contempt,
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I was answering the question under the hypothetical
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there being no dispute, so-
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Sorry, I meant by no dispute, I meant no new dispute.
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Like no dispute that arguably needs to be arbitrated.
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Rather, you know, what you're contending here
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is we're not talking about anything
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other than just wanting our 18 paras.
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That's all we're talking about. That's all we want.
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And so that obviously is the same dispute.
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So I guess I'm asking leading questions.
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I think that there is a point
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which is that you can get contempt at that point,
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And I think that they are unhappy about that
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as discussed in Derwin because there's a concern
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that the contempt power will be improperly used
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to usurp the role
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of arbitration in these ongoing relationships.
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So can you specifically address
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why the existence of a judgment
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that would exist following a Section 10 confirmation,
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what would happen and how,
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I think it would help your case to explain
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how actually, you know, you are not just gonna go in
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for contempt when there's a new dispute.
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Understood, Your Honor.
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When there is a new dispute,
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I think that the first thing the parties would do
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and would almost have an obligation to do
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because it would almost certainly involve
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a mandatory subject of bargaining
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is bargain over the dispute.
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If it cannot be resolved, and it truly is a new issue,
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at which point we would file a grievance
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and process it to arbitration
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if the issue were truly new.
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At that point, we would have a new decision.
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Either we'd prevail or we wouldn't.
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At that point, if we were to prevail,
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I don't believe we would have to go back
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to arbitration to re-litigate the same dispute
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if the district were to remain in non-compliance,
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which I think is this very case.
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If in fact there is a new dispute
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or if there is not a new dispute, then again,
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I think the parties would still seek to bargain
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if there is, for example, a good faith effort
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on the district to hire folks
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but are simply incapable of doing so.
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Again, that's a mandatory subject
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because it involves the compliance
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with an existing contractual provision.
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So there's a bargaining obligation
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by the district if they're going to say,
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"Hey, we can't do this as a matter of practice.
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It is effectively impossible."
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And what happens instead, if the union goes to court
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and says, "Look, we got this,"
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and tries to do it through contempt.
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What would the trial court's options be at that point?
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I think the trial court then would have
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to essentially find facts determining
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to what degree the district
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is truly out of compliance with the award.
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Whether or not there has been a good faith effort
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to make these hires, whether or not the folks-
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It does shift to the court the next step.
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That may be right, that may be appropriate,
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particularly in this context, but that's the concern, right?
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That now instead of you going to the arbitrator
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back to Joe Daly
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and saying, "Hey, they're not complying with this thing,"
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you're going to court saying, "They're in contempt."
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But at a certain point,
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that does become necessary, Justice Kafker.
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Well, that's why you're here, right?
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You're not here because that's what you want.
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You want the courts
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to now have be enforcing this rather than,
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I'm not saying you're wrong,
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I'm just saying that's why you're here.
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Yes, and I think I may be being pedantic,
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but the shift is what lost me in the question
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because I don't believe it's a shift.
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I believe it's exactly what Section 10 contemplates:
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that at a certain point the court is going
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to have to find those facts.
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In the absence of that, we would have an ouroboros
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just going back to arbitration, winning an award.
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Well, in your universe,
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there are a lot of subsequent fights
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over the meaning of these things.
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And the question is is it bound by the original decision
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or is it really a subject of a new arbitration?
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And that's where this gets harder.
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And I think actually the pleadings and the material
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before the Superior Court clarified
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that issue quite a bit.
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In its opposition to the union's motion
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for judgment on the pleadings,
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the district attached two emails,
267
00:11:28.295 --> 00:11:30.345
which are in the record appendix before you,
268
00:11:30.345 --> 00:11:33.189
that purported to list the cluster para subs
269
00:11:33.189 --> 00:11:36.409
that were active in the district at the time.
270
00:11:36.409 --> 00:11:39.518
They numbered 13 and there were a another three
271
00:11:39.518 --> 00:11:44.329
who I believe were called surround care cluster paras.
272
00:11:44.329 --> 00:11:47.220
So being charitable and assuming that's the same job
273
00:11:47.220 --> 00:11:48.813
and that's an accurate description
274
00:11:48.813 --> 00:11:50.578
of each of those 16 folks,
275
00:11:50.578 --> 00:11:52.813
we know that they haven't hired 18.
276
00:11:52.813 --> 00:11:54.993
Right, but that's the First Circuit's concern
277
00:11:54.993 --> 00:11:57.559
is that may not be a federal case,
278
00:11:57.559 --> 00:11:59.570
that may be more an arbitration matter.
279
00:11:59.570 --> 00:12:02.058
But, again, I see your point
280
00:12:02.058 --> 00:12:05.334
and the language shall says you shall confirm.
281
00:12:05.334 --> 00:12:07.760
'Cause I guess the court can just say, "Hey,
282
00:12:07.760 --> 00:12:10.880
this is a subject for new arbitration, right?"
283
00:12:10.880 --> 00:12:12.298
They can decide that,
284
00:12:12.298 --> 00:12:15.043
but then you're forcing the Superior Court judges
285
00:12:15.043 --> 00:12:16.629
to do this.
286
00:12:16.629 --> 00:12:21.109
Yeah, and and our concern, Your Honor, is that ultimately,
287
00:12:21.109 --> 00:12:23.848
especially when we're talking about hiring,
288
00:12:23.848 --> 00:12:26.088
a hiring cycle occurs every year.
289
00:12:26.088 --> 00:12:28.626
Therefore there will be new facts, such as they are,
290
00:12:28.626 --> 00:12:31.332
every single year for the district to be able
291
00:12:31.332 --> 00:12:33.849
to trot out and say, "Hey, this is what we did this time
292
00:12:33.849 --> 00:12:35.705
and 16's close enough, maybe."
293
00:12:35.705 --> 00:12:38.181
But think of the contempt proceedings, right?
294
00:12:38.181 --> 00:12:42.378
So if that's the case, you go to the Superior Court
295
00:12:42.378 --> 00:12:44.367
for a contempt order every year
296
00:12:44.367 --> 00:12:46.120
because there's noncompliance.
297
00:12:46.120 --> 00:12:48.758
Well, in the event that there's non-compliance,
298
00:12:48.758 --> 00:12:51.282
I have to go somewhere every year and fundamentally-
299
00:12:51.282 --> 00:12:54.284
Well as opposed to bargaining in arbitration.
300
00:12:54.284 --> 00:12:56.304
Well, we've already bargained the,
301
00:12:56.304 --> 00:12:57.409
it's a contract provision.
302
00:12:57.409 --> 00:12:59.970
We have it, and in order to enforce it,
303
00:12:59.970 --> 00:13:01.427
we're going to need a court order,
304
00:13:01.427 --> 00:13:02.935
otherwise we would be going back
305
00:13:02.935 --> 00:13:05.569
to arbitration every year getting a new award
306
00:13:05.569 --> 00:13:07.958
because there are slightly different facts excusing,
307
00:13:07.958 --> 00:13:10.776
in the district's view, the non-compliance,
308
00:13:10.776 --> 00:13:12.125
and we'll have a role.
309
00:13:12.125 --> 00:13:13.401
But you have a contempt.
310
00:13:13.401 --> 00:13:16.409
You have an order in your hand, that's the issue.
311
00:13:16.409 --> 00:13:18.555
And as Justice Kafker says, the issue here
312
00:13:18.555 --> 00:13:21.590
is the next fight, not this one.
313
00:13:21.590 --> 00:13:23.898
I'm sorry, Justice Wendlandt.
314
00:13:23.898 --> 00:13:28.296
Can you address Article 3 of the federal constitution,
315
00:13:28.296 --> 00:13:30.922
which limits the jurisdiction
316
00:13:30.922 --> 00:13:34.240
of federal courts like the First Circuit
317
00:13:34.240 --> 00:13:36.167
to cases and controversies.
318
00:13:36.167 --> 00:13:39.691
We don't have that in our state constitution,
319
00:13:39.691 --> 00:13:43.384
so it seems to me that there may be a difference
320
00:13:43.384 --> 00:13:47.575
between what you're seeking from the Superior Court
321
00:13:47.575 --> 00:13:52.075
under our statute versus what was occurring in Derwin,
322
00:13:52.942 --> 00:13:55.371
where the First Circuit needed to find a case
323
00:13:55.371 --> 00:13:58.407
or controversy and couldn't find one.
324
00:13:58.407 --> 00:13:59.796
Yes, agree, Justice Wendlandt.
325
00:13:59.796 --> 00:14:02.325
I think that's a significant difference
326
00:14:02.325 --> 00:14:05.204
and perhaps explains the Derwin court's
327
00:14:05.204 --> 00:14:07.199
reasoning a bit more.
328
00:14:07.199 --> 00:14:08.669
We don't have an issue here
329
00:14:08.669 --> 00:14:10.362
where if there is no act of controversy,
330
00:14:10.362 --> 00:14:11.833
then there is no reason to be in front
331
00:14:11.833 --> 00:14:13.351
of a Superior Court judge.
332
00:14:13.351 --> 00:14:15.259
We don't have to deal with that issue.
333
00:14:15.259 --> 00:14:17.246
And I think that that may have been something
334
00:14:17.246 --> 00:14:19.206
that the legislator considered when it gave
335
00:14:19.206 --> 00:14:23.322
such a clear mandatory demand in that statute,
336
00:14:23.322 --> 00:14:25.684
or command in that statute.
337
00:14:25.684 --> 00:14:30.480
Okay, and is this in any way similar to a consent decree
338
00:14:30.480 --> 00:14:32.960
where both parties, there was a dispute,
339
00:14:32.960 --> 00:14:35.959
the parties have now resolved it, they go to the court
340
00:14:35.959 --> 00:14:40.001
with a mutually agreed consent agreement
341
00:14:40.001 --> 00:14:42.017
and they ask for the court to enter it?
342
00:14:42.017 --> 00:14:45.593
Is there a difference between this and that?
343
00:14:45.593 --> 00:14:48.162
I don't think one that's meaningful,
344
00:14:48.162 --> 00:14:51.378
that issue admittedly hadn't been raised below,
345
00:14:51.378 --> 00:14:53.224
so it's the first time I'm thinking about it,
346
00:14:53.224 --> 00:14:55.495
but I don't believe that there is a meaningful difference
347
00:14:55.495 --> 00:14:56.708
between the two.
348
00:14:56.708 --> 00:15:00.074
Okay, thank you.
Can I ask one last question?
349
00:15:00.074 --> 00:15:02.297
This circuit split still exists, right?
350
00:15:02.297 --> 00:15:03.736
The federal circuits?
351
00:15:03.736 --> 00:15:05.266
The Third Circuit goes one way,
352
00:15:05.266 --> 00:15:06.661
the First Circuit goes the other,
353
00:15:06.661 --> 00:15:08.275
the Second Circuit's more along the lines
354
00:15:08.275 --> 00:15:09.756
of the Third Circuit?
I believe so.
355
00:15:09.756 --> 00:15:11.370
And the Supreme Court hasn't taken one
356
00:15:11.370 --> 00:15:12.739
of these cases, right?
357
00:15:12.739 --> 00:15:14.156
That's correct.
358
00:15:16.820 --> 00:15:19.781
And if there are no further questions, I'd rest on my brief.
359
00:15:19.781 --> 00:15:21.864
Thank you.
Thank you.
360
00:15:24.965 --> 00:15:28.215
Okay, Attorney Pidani.
361
00:15:44.616 --> 00:15:46.574
Good morning, and may it please the court,
362
00:15:46.574 --> 00:15:50.261
Michael Pidani on behalf of the Boston Public Schools.
363
00:15:50.261 --> 00:15:54.680
Will you just explain why your client's so concerned
364
00:15:54.680 --> 00:15:56.680
about this issue at all?
365
00:15:58.704 --> 00:16:00.323
What's the big deal?
366
00:16:00.323 --> 00:16:03.619
Well, I think Derwin highlights some of those issues
367
00:16:03.619 --> 00:16:06.943
and I believe Justice Dewar commented on them.
368
00:16:06.943 --> 00:16:09.266
There's A, the possibility that,
369
00:16:09.266 --> 00:16:11.967
and in this case we don't have to speculate.
370
00:16:11.967 --> 00:16:16.046
There is a concern that the the scope of the award
371
00:16:16.046 --> 00:16:18.113
is trying to be expanded to issues
372
00:16:18.113 --> 00:16:21.791
that were not part of the initial grievance.
373
00:16:21.791 --> 00:16:23.948
Isn't that your next litigation
374
00:16:23.948 --> 00:16:25.527
when they tried to do that?
375
00:16:25.527 --> 00:16:29.827
I don't understand exactly why the Superior Court
376
00:16:29.827 --> 00:16:32.859
can have the authority not to comply
377
00:16:32.859 --> 00:16:34.943
with the statutory mandate
378
00:16:34.943 --> 00:16:37.110
to enter the confirmation.
379
00:16:38.729 --> 00:16:41.146
Maybe if your client violates
380
00:16:42.611 --> 00:16:46.840
or is alleged to violate the arbitration award,
381
00:16:46.840 --> 00:16:50.564
maybe at that point, if there's an expanded use
382
00:16:50.564 --> 00:16:53.803
of the award in your view, that's when you argue that.
383
00:16:53.803 --> 00:16:57.743
But I don't understand why at this present time
384
00:16:57.743 --> 00:17:00.928
the Superior Court need not comply with the statute.
385
00:17:00.928 --> 00:17:05.298
Well, I would first, to your point, Justice Wendlandt,
386
00:17:05.298 --> 00:17:07.494
the statute doesn't have the mandate
387
00:17:07.494 --> 00:17:09.503
that the union suggests.
388
00:17:09.503 --> 00:17:10.955
The mandatory-
It does say shall.
389
00:17:10.955 --> 00:17:11.941
It does, but you can't-
Pretty good.
390
00:17:11.941 --> 00:17:14.964
Look at the section 10 in isolation.
391
00:17:14.964 --> 00:17:16.859
You have to look at it as a part
392
00:17:16.859 --> 00:17:19.109
of a much broader statutory scheme.
393
00:17:19.109 --> 00:17:23.439
In Chapter 150C when it was enacted in 1959,
394
00:17:23.439 --> 00:17:25.729
it was by way of an act providing
395
00:17:25.729 --> 00:17:27.239
for the judicial enforcement
396
00:17:27.239 --> 00:17:30.720
of collective bargaining agreements to arbitrate.
397
00:17:30.720 --> 00:17:33.167
And as this court has previously said
398
00:17:33.167 --> 00:17:37.287
in Murphy versus National Union Fire Insurance Company
399
00:17:37.287 --> 00:17:40.825
dealing with Chapter 251, Section 11,
400
00:17:40.825 --> 00:17:42.355
it's a confirmation statute
401
00:17:42.355 --> 00:17:46.245
with nearly identical language that confirmation,
402
00:17:46.245 --> 00:17:49.701
the purpose of confirmation is to allow a plaintiff
403
00:17:49.701 --> 00:17:52.667
to collect an unsatisfied award
404
00:17:52.667 --> 00:17:54.978
by obtaining a judgment that can be enforced.
405
00:17:54.978 --> 00:17:57.849
Isn't that the purpose of enforcement?
406
00:17:57.849 --> 00:17:59.091
Exactly, and that's what-
407
00:17:59.091 --> 00:17:59.929
But that's different.
408
00:17:59.929 --> 00:18:01.691
Enforcement and confirmation seem
409
00:18:01.691 --> 00:18:03.116
to be two different things.
410
00:18:03.116 --> 00:18:06.944
I think it's Section 13 that is about enforcement
411
00:18:06.944 --> 00:18:08.763
and Section 10, which is the only thing
412
00:18:08.763 --> 00:18:12.143
that's at issue here, is about confirmation.
413
00:18:12.143 --> 00:18:14.468
Well, Section 10 is the mechanism
414
00:18:14.468 --> 00:18:16.830
that somebody would use in order
415
00:18:16.830 --> 00:18:18.232
to go about seeking enforcement.
416
00:18:18.232 --> 00:18:21.501
Step one, right? Step one is Section 10.
417
00:18:21.501 --> 00:18:22.842
That's where we're at here.
418
00:18:22.842 --> 00:18:24.519
If there's some dispute about enforcement,
419
00:18:24.519 --> 00:18:26.017
that's Section 13.
420
00:18:26.017 --> 00:18:29.305
And I guess my question is why do we have
421
00:18:29.305 --> 00:18:31.138
to determine that now?
422
00:18:32.333 --> 00:18:34.111
Well, that would not be-
423
00:18:34.111 --> 00:18:35.711
(sneezes) Excuse me.
Bless you.
424
00:18:35.711 --> 00:18:38.461
That's inconsistent with the purpose of arbitration.
425
00:18:38.461 --> 00:18:42.044
Arbitration is intended to provide finality
426
00:18:43.063 --> 00:18:44.456
in a much more cost effective,
427
00:18:44.456 --> 00:18:46.434
in much faster manner-
Counsel-
428
00:18:46.434 --> 00:18:49.413
And all we're doing is-
Sorry, absolutely,
429
00:18:49.413 --> 00:18:52.002
we understood the purposes of arbitration
430
00:18:52.002 --> 00:18:53.119
and important role it plays,
431
00:18:53.119 --> 00:18:55.732
but can you address what the argument
432
00:18:55.732 --> 00:18:57.538
that we were discussing earlier or the situation
433
00:18:57.538 --> 00:19:00.371
where they've won the arbitration,
434
00:19:01.863 --> 00:19:04.399
the district has not hired 18 paras,
435
00:19:04.399 --> 00:19:08.544
maybe has hired however many, has not hired 18,
436
00:19:08.544 --> 00:19:10.294
what do they do then?
437
00:19:11.464 --> 00:19:13.213
So I think-
Do they have to arbitrate
438
00:19:13.213 --> 00:19:14.880
again the same point
439
00:19:16.164 --> 00:19:18.024
that the district still hasn't hired 18 paras,
440
00:19:18.024 --> 00:19:19.826
which they already won in front
441
00:19:19.826 --> 00:19:22.095
of an arbitrator or can they go to court?
442
00:19:22.095 --> 00:19:25.853
It depends, if the district has flat-out not complied,
443
00:19:25.853 --> 00:19:30.226
they have made no attempts to post any of those positions,
444
00:19:30.226 --> 00:19:31.362
essentially they've repudiated the award.
445
00:19:31.362 --> 00:19:33.115
So the arbitrator's decision is subject
446
00:19:33.115 --> 00:19:35.353
to a good faith standard where the district
447
00:19:35.353 --> 00:19:37.499
doesn't actually really have to do it as long
448
00:19:37.499 --> 00:19:39.699
as they sort of are trying?
449
00:19:39.699 --> 00:19:40.532
No.
They won.
450
00:19:40.532 --> 00:19:41.933
They got a arbitration
451
00:19:41.933 --> 00:19:43.631
that's supposed to settle this finally
452
00:19:43.631 --> 00:19:45.720
through a sufficient means saying
453
00:19:45.720 --> 00:19:47.425
the district has to hire 18.
454
00:19:47.425 --> 00:19:49.057
The district didn't challenge that
455
00:19:49.057 --> 00:19:50.418
in any way, shape or form.
456
00:19:50.418 --> 00:19:53.517
So what does the union then do about the fact
457
00:19:53.517 --> 00:19:56.434
that the district has not hired 18?
458
00:19:57.787 --> 00:20:00.013
So I think to best illustrate
459
00:20:00.013 --> 00:20:02.070
what you're getting at, and this is a case,
460
00:20:02.070 --> 00:20:05.110
it was not referenced in the appellate's brief.
461
00:20:05.110 --> 00:20:07.920
It's a case out of the First Circuit
462
00:20:07.920 --> 00:20:11.247
that I do want to draw to the court's attention
463
00:20:11.247 --> 00:20:13.733
because I think it'll help illustrate
464
00:20:13.733 --> 00:20:14.566
what you're talking about
465
00:20:14.566 --> 00:20:15.836
in the issue that we're grappling with.
466
00:20:15.836 --> 00:20:20.612
It's Armco employees Independent Federation Incorporated,
467
00:20:20.612 --> 00:20:23.112
it's 65F.3D, as in David, 492,
468
00:20:25.174 --> 00:20:27.317
Sixth Circuit, 1995.
469
00:20:27.317 --> 00:20:29.925
And so in dealing with confirmation,
470
00:20:29.925 --> 00:20:33.581
a court is able to distinguish an actual failure to comply
471
00:20:33.581 --> 00:20:37.228
with an award which it's empowered to remedy from,
472
00:20:37.228 --> 00:20:39.601
for example, a response whose adequacy
473
00:20:39.601 --> 00:20:42.867
in compliance with an award is ambiguous
474
00:20:42.867 --> 00:20:46.423
and where the arbitrator must first make a decision.
475
00:20:46.423 --> 00:20:50.163
The case law is clear that the courts
476
00:20:50.163 --> 00:20:52.279
are not empowered to perform fact finding
477
00:20:52.279 --> 00:20:55.637
or second-guessing when parties agree
478
00:20:55.637 --> 00:20:57.275
to resolve their conflicts.
479
00:20:57.275 --> 00:20:59.123
But counsel, I don't think,
480
00:20:59.123 --> 00:21:00.299
and correct me if I'm wrong,
481
00:21:00.299 --> 00:21:02.345
but I don't think there's any dispute
482
00:21:02.345 --> 00:21:03.867
that the arbitrator found
483
00:21:03.867 --> 00:21:06.018
the district has to hire 18 people.
484
00:21:06.018 --> 00:21:08.381
This strikes me as a relatively clear decision, right?
485
00:21:08.381 --> 00:21:10.762
It's like a number of people who have to be hired
486
00:21:10.762 --> 00:21:12.144
and I don't understand the district to be arguing
487
00:21:12.144 --> 00:21:14.453
that it did hire 18 people
488
00:21:14.453 --> 00:21:17.960
or that there's even any dispute about that.
489
00:21:17.960 --> 00:21:19.699
So it's pretty clear cut here.
490
00:21:19.699 --> 00:21:22.616
I could see that it could be not clear cut in other cases,
491
00:21:22.616 --> 00:21:24.576
but can you address,
492
00:21:24.576 --> 00:21:26.340
I will look at the case, I appreciate the reference to it,
493
00:21:26.340 --> 00:21:28.531
but just as a practical matter,
494
00:21:28.531 --> 00:21:30.628
what is your understanding of what should happen?
495
00:21:30.628 --> 00:21:34.048
What should the union do when they've won the arbitration?
496
00:21:34.048 --> 00:21:36.095
The arbitration said hire 18
497
00:21:36.095 --> 00:21:38.012
and they don't hire 18.
498
00:21:39.467 --> 00:21:43.247
If the district has made no attempt, a flat-out failure,
499
00:21:43.247 --> 00:21:45.377
they can come and seek confirmation.
500
00:21:45.377 --> 00:21:48.497
It would be appropriate for the court to confirm the award
501
00:21:48.497 --> 00:21:50.574
and enter judgment in order to-
502
00:21:50.574 --> 00:21:52.952
The standard you've made no attempt.
503
00:21:52.952 --> 00:21:54.183
You've gotta-
No, the district has,
504
00:21:54.183 --> 00:21:56.029
that's the thing.
505
00:21:56.029 --> 00:21:58.097
The standard for enforcing an arbitration agreement
506
00:21:58.097 --> 00:22:00.653
is not whether you've made no attempt to comply.
507
00:22:00.653 --> 00:22:02.345
You have to comply, right?
508
00:22:02.345 --> 00:22:05.161
So that can't be the answer about whether the court
509
00:22:05.161 --> 00:22:07.398
should intervene or not.
510
00:22:07.398 --> 00:22:08.936
Well, in this particular case,
511
00:22:08.936 --> 00:22:12.335
the parties' collective bargaining dispute
512
00:22:12.335 --> 00:22:14.097
for it not to be enforced, right?
513
00:22:14.097 --> 00:22:17.093
It has to be something different enough that you have
514
00:22:17.093 --> 00:22:19.600
to go back to an arbitrator for.
515
00:22:19.600 --> 00:22:21.029
Correct, yes.
516
00:22:21.029 --> 00:22:23.420
But also, the courts have been reluctant
517
00:22:23.420 --> 00:22:25.895
to confirm an award where the arbitrator
518
00:22:25.895 --> 00:22:28.996
is merely acknowledging or saying
519
00:22:28.996 --> 00:22:31.340
that the district has to comply with the provision
520
00:22:31.340 --> 00:22:33.406
of its contract.
521
00:22:33.406 --> 00:22:35.632
The contract said, "You have to hire
522
00:22:35.632 --> 00:22:38.334
18 cluster substitute paraprofessionals."
523
00:22:38.334 --> 00:22:42.463
You're pushing them to get to go to court.
524
00:22:42.463 --> 00:22:44.285
We have tons of arbitration awards
525
00:22:44.285 --> 00:22:48.287
that we don't have these, you know, certificates,
526
00:22:48.287 --> 00:22:51.215
but you're now gonna force them as soon as they do this,
527
00:22:51.215 --> 00:22:55.407
to go to court and get every one of these
528
00:22:55.407 --> 00:22:59.014
supported by an order if you keep this up, right?
529
00:22:59.014 --> 00:23:02.347
'Cause right when they got this award, right,
530
00:23:02.347 --> 00:23:07.347
they could immediately have gone in and done this, correct?
531
00:23:07.374 --> 00:23:09.037
You would've had no grounds
532
00:23:09.037 --> 00:23:12.222
for a superior court judge not to enforce this, right?
533
00:23:12.222 --> 00:23:15.378
If they went in right after the arbitration award,
534
00:23:15.378 --> 00:23:18.301
came in with this federal statute says you shall issue this,
535
00:23:18.301 --> 00:23:19.502
you would've had to do it, right?
536
00:23:19.502 --> 00:23:22.704
The superior court judge would've had to do this, right?
537
00:23:22.704 --> 00:23:26.858
Well, the only issue now is because time has passed,
538
00:23:26.858 --> 00:23:31.447
whether now it's sort of like something different.
539
00:23:31.447 --> 00:23:34.114
Well, to answer your question,
540
00:23:36.934 --> 00:23:38.946
as far as you know them,
541
00:23:38.946 --> 00:23:42.102
you have to look at the statute Section 10 again,
542
00:23:42.102 --> 00:23:44.104
as part of a broader scheme-
543
00:23:44.104 --> 00:23:46.086
Daly issued this award.
544
00:23:46.086 --> 00:23:48.174
When he issues that award, they have the right
545
00:23:48.174 --> 00:23:51.113
to go to court and get that-
546
00:23:51.113 --> 00:23:53.474
For enforcement purposes.
547
00:23:53.474 --> 00:23:54.477
If you look at the various parts
548
00:23:54.477 --> 00:23:55.310
of Section-
Don't have the right
549
00:23:55.310 --> 00:23:56.977
to just get it, sir?
550
00:23:57.863 --> 00:24:02.146
If you look at the various parts of Chapter 150C,
551
00:24:02.146 --> 00:24:04.637
Chapter 150C, it outlines the limited role
552
00:24:04.637 --> 00:24:07.139
that courts play in the arbitration process.
553
00:24:07.139 --> 00:24:09.502
And there's always something that triggers that.
554
00:24:09.502 --> 00:24:12.283
It's a party's failure to do something, a refusal.
555
00:24:12.283 --> 00:24:15.397
So Section 2, it outlines the circumstances
556
00:24:15.397 --> 00:24:18.015
where a court can issue a stay of arbitration
557
00:24:18.015 --> 00:24:21.227
or order parties to go arbitrate.
558
00:24:21.227 --> 00:24:25.012
I believe Section 4 or 5, that outlines the instances
559
00:24:25.012 --> 00:24:27.788
where a court can appoint an arbitrator
560
00:24:27.788 --> 00:24:29.181
and Section 10 is no different.
561
00:24:29.181 --> 00:24:32.412
Section 10, it triggers when a party has failed
562
00:24:32.412 --> 00:24:33.861
to comply with an award.
563
00:24:33.861 --> 00:24:34.983
Either they-
No, it doesn't.
564
00:24:34.983 --> 00:24:38.303
No, that's 13.
That's different.
565
00:24:38.303 --> 00:24:41.737
Section 10 says the court shall confirm
566
00:24:41.737 --> 00:24:45.237
unless there has been some dispute
567
00:24:45.237 --> 00:24:46.693
about the arbitration award
568
00:24:46.693 --> 00:24:49.443
in a specific time period, right?
569
00:24:51.179 --> 00:24:52.340
So that's the trigger.
570
00:24:52.340 --> 00:24:53.517
Unlike the other provisions
571
00:24:53.517 --> 00:24:56.517
that you're saying require the court
572
00:24:57.842 --> 00:25:00.675
to withhold its power in some way,
573
00:25:02.245 --> 00:25:05.095
Section 10 specifically says, you shall confirm
574
00:25:05.095 --> 00:25:08.262
unless your client disputes the award,
575
00:25:09.121 --> 00:25:11.740
seeking a modification, whatever it is.
576
00:25:11.740 --> 00:25:12.985
And in this case,
577
00:25:12.985 --> 00:25:15.283
your client didn't do it in the time period,
578
00:25:15.283 --> 00:25:19.037
so I don't really understand your argument
579
00:25:19.037 --> 00:25:22.647
that it requires a continuing dispute.
580
00:25:22.647 --> 00:25:26.115
I mean, isn't this like a consent decree
581
00:25:26.115 --> 00:25:30.319
where there was a dispute, the parties resolved it
582
00:25:30.319 --> 00:25:32.675
in this way through arbitration,
583
00:25:32.675 --> 00:25:35.209
everybody had the opportunity to come forward
584
00:25:35.209 --> 00:25:37.643
and dispute the arbitration award and time has passed
585
00:25:37.643 --> 00:25:41.002
and now the superior court shall confirm?
586
00:25:41.002 --> 00:25:44.076
I don't understand the argument to the contrary.
587
00:25:44.076 --> 00:25:47.914
And frankly the federal cases are all about Article 3
588
00:25:47.914 --> 00:25:48.928
of the federal constitution,
589
00:25:48.928 --> 00:25:51.715
which requires a case in controversy.
590
00:25:51.715 --> 00:25:54.438
We don't have that in our state constitution.
591
00:25:54.438 --> 00:25:55.984
We don't have that in our constitution,
592
00:25:55.984 --> 00:25:58.577
but this court has itself in the Murphy
593
00:25:58.577 --> 00:26:02.347
versus National Union Fire Insurance Company case in 2003
594
00:26:02.347 --> 00:26:05.054
it said verbatim, "It is well established
595
00:26:05.054 --> 00:26:07.947
that courts resolve actual controversies."
596
00:26:07.947 --> 00:26:10.764
And dealing with the confirmation statute
597
00:26:10.764 --> 00:26:14.685
in Chapter 251, the court said that the purpose
598
00:26:14.685 --> 00:26:16.957
of confirmation is to allow a plaintiff
599
00:26:16.957 --> 00:26:19.288
to collect an unsatisfied award.
600
00:26:19.288 --> 00:26:22.339
And in that instance, it declined to confirm an award,
601
00:26:22.339 --> 00:26:24.722
even though it has the mandatory shall language,
602
00:26:24.722 --> 00:26:26.539
which suggests that there is room
603
00:26:26.539 --> 00:26:28.512
for the court's discretion
604
00:26:28.512 --> 00:26:30.180
to determine if confirmation
605
00:26:30.180 --> 00:26:32.598
would serve a useful purpose in-
606
00:26:32.598 --> 00:26:35.303
Well, isn't there a useful purpose?
607
00:26:35.303 --> 00:26:36.593
In this instance, no,
608
00:26:36.593 --> 00:26:37.861
'cause the district's positions-
609
00:26:37.861 --> 00:26:39.626
But the district has not hired
610
00:26:39.626 --> 00:26:41.709
the 18 paraprofessionals.
611
00:26:42.584 --> 00:26:44.653
The parties' collective bargaining agreement says
612
00:26:44.653 --> 00:26:47.085
that the district will utilize its best efforts
613
00:26:47.085 --> 00:26:48.144
to implement an award.
614
00:26:48.144 --> 00:26:50.182
Is that what the arbitration award says?
615
00:26:50.182 --> 00:26:53.686
The award says that it will comply with that provision,
616
00:26:53.686 --> 00:26:55.775
but you can't again look at that provision
617
00:26:55.775 --> 00:26:57.667
in a vacuum.
So you're saying that given
618
00:26:57.667 --> 00:27:00.788
that your client has actually used best efforts
619
00:27:00.788 --> 00:27:03.147
and just hasn't found 18 people, right?
620
00:27:03.147 --> 00:27:04.576
And it would be-
So that complies
621
00:27:04.576 --> 00:27:05.969
with the arbitration award.
622
00:27:05.969 --> 00:27:07.521
It would be for an arbitrator to decide
623
00:27:07.521 --> 00:27:10.822
what best efforts means in the context of hiring,
624
00:27:10.822 --> 00:27:13.972
because as we know, people get fired,
625
00:27:13.972 --> 00:27:15.742
they leave, they get promoted.
626
00:27:15.742 --> 00:27:19.660
So there will be times where the district will be under 18.
627
00:27:19.660 --> 00:27:23.998
And so is this court suggesting that anytime that happens,
628
00:27:23.998 --> 00:27:26.092
the union or any union would come
629
00:27:26.092 --> 00:27:27.764
and file a contempt action?
630
00:27:27.764 --> 00:27:31.003
That is not the most effective use of judicial resources.
631
00:27:31.003 --> 00:27:34.293
Attorney Pidani, I guess if I could,
632
00:27:34.293 --> 00:27:39.188
when would anyone ever get confirmation in your world
633
00:27:39.188 --> 00:27:41.733
of an arbitration decision?
634
00:27:41.733 --> 00:27:43.097
So let's say for example,
635
00:27:43.097 --> 00:27:46.766
the award required somebody to be reinstated
636
00:27:46.766 --> 00:27:48.478
and awarded back pay,
637
00:27:48.478 --> 00:27:51.644
and the district has not given that back pay.
638
00:27:51.644 --> 00:27:54.603
In that situation, confirm the award
639
00:27:54.603 --> 00:27:57.762
and you get that judgment that can be used
640
00:27:57.762 --> 00:28:00.709
if the district continues to fail to comply.
641
00:28:00.709 --> 00:28:03.171
'Cause you have to take it to its logical extreme.
642
00:28:03.171 --> 00:28:06.436
If you're saying that the court, no matter what,
643
00:28:06.436 --> 00:28:10.134
shall confirm an award as long as a application
644
00:28:10.134 --> 00:28:13.570
to vacate or modify was not filed within 30 days,
645
00:28:13.570 --> 00:28:16.087
you could conceivably have an arbitration award
646
00:28:16.087 --> 00:28:17.788
from 30 years ago,
647
00:28:17.788 --> 00:28:20.531
somebody come and seek confirmation,
648
00:28:20.531 --> 00:28:22.713
and then try to file a contempt action
649
00:28:22.713 --> 00:28:25.405
even though there's a successor agreement and it's not-
650
00:28:25.405 --> 00:28:27.811
Every time you dip below 18 paras
651
00:28:27.811 --> 00:28:30.496
through no fault of your own, you're facing contempt?
652
00:28:30.496 --> 00:28:33.781
Correct, and the appropriate course would be
653
00:28:33.781 --> 00:28:35.976
for an arbitrator to clarify the award.
654
00:28:35.976 --> 00:28:38.479
What does best efforts mean?
655
00:28:38.479 --> 00:28:39.988
I'm just looking at the award.
656
00:28:39.988 --> 00:28:41.854
It's not in the award, it's in the other provisions-
657
00:28:41.854 --> 00:28:43.839
Award is the exact opposite, right?
658
00:28:43.839 --> 00:28:45.459
I mean, let's just read the award.
659
00:28:45.459 --> 00:28:48.837
"The Boston School Committee violated Article 2.
660
00:28:48.837 --> 00:28:50.233
To remedy this violation,
661
00:28:50.233 --> 00:28:52.558
the committee is ordered to prospectively comply
662
00:28:52.558 --> 00:28:54.716
with its contractual obligation to hire
663
00:28:54.716 --> 00:28:57.786
and maintain 18 cluster paraprofessional."
664
00:28:57.786 --> 00:29:00.984
Then I'm reading Article 2 of the,
665
00:29:00.984 --> 00:29:02.784
am I reading this correctly?
666
00:29:02.784 --> 00:29:04.806
"The school de department shall hire
667
00:29:04.806 --> 00:29:09.120
18 cluster building paraprofessional substitutes."
668
00:29:09.120 --> 00:29:10.408
That provision was in the contract.
669
00:29:10.408 --> 00:29:12.749
The award is just saying comply with the contract.
670
00:29:12.749 --> 00:29:14.977
So where's this good faith?
671
00:29:14.977 --> 00:29:16.692
In the section,
672
00:29:16.692 --> 00:29:19.680
and this is in the supplemental appendix of the appellee.
673
00:29:19.680 --> 00:29:21.847
The arbitrator didn't say,
674
00:29:21.847 --> 00:29:24.816
"You shall exercise good faith, right?
675
00:29:24.816 --> 00:29:27.501
The arbitrator said, "Comply with the contract."
676
00:29:27.501 --> 00:29:30.069
And so you look at the contract as a whole.
677
00:29:30.069 --> 00:29:32.798
The contract doesn't have this wishy-washy language
678
00:29:32.798 --> 00:29:35.146
on Article 2 either, right?
679
00:29:35.146 --> 00:29:38.660
It no, it does. That's verbatim from the contract.
680
00:29:38.660 --> 00:29:40.077
All he's doing is-
In the contract.
681
00:29:40.077 --> 00:29:42.456
Am I misreading it?
682
00:29:42.456 --> 00:29:44.456
Section 15 of Article 2,
683
00:29:45.378 --> 00:29:47.444
"The school department shall hire
684
00:29:47.444 --> 00:29:49.148
18 cluster building professional."
685
00:29:49.148 --> 00:29:50.103
Am I misreading that?
686
00:29:50.103 --> 00:29:52.651
Nope, that's the language in the contract.
687
00:29:52.651 --> 00:29:56.379
So that's kind of not good faith.
688
00:29:56.379 --> 00:29:59.073
That's kind of hire 18.
689
00:29:59.073 --> 00:29:59.906
Hire 18.
690
00:29:59.906 --> 00:30:03.783
But when it comes to implementation of the award,
691
00:30:03.783 --> 00:30:05.422
this is in the section of the contract
692
00:30:05.422 --> 00:30:07.355
concerning the dispute resolution process.
693
00:30:07.355 --> 00:30:09.541
It says that the district will utilize
694
00:30:09.541 --> 00:30:10.664
its best efforts to implement an award.
695
00:30:10.664 --> 00:30:15.664
Isn't that exactly why they are seeking a court order?
696
00:30:15.723 --> 00:30:17.473
Because you're trying
697
00:30:19.093 --> 00:30:22.170
to read in flexibility that doesn't exist.
698
00:30:22.170 --> 00:30:24.244
That's why they need,
699
00:30:24.244 --> 00:30:25.823
and that's probably why they should have gone
700
00:30:25.823 --> 00:30:28.307
right up front and got the award.
701
00:30:28.307 --> 00:30:29.596
But there needs to be flexibility
702
00:30:29.596 --> 00:30:32.887
because in the labor and management relationship,
703
00:30:32.887 --> 00:30:36.516
there will be instances where the district will be under 18
704
00:30:36.516 --> 00:30:38.960
and we don't want these contempt actions, and really-
705
00:30:38.960 --> 00:30:41.106
But why didn't you negotiate a provision
706
00:30:41.106 --> 00:30:42.552
that says, "The school department shall hire
707
00:30:42.552 --> 00:30:46.364
18 cluster building paraprofessional substitutes
708
00:30:46.364 --> 00:30:47.797
to the best of its abilities,
709
00:30:47.797 --> 00:30:49.943
subject to the economic conditions?"
710
00:30:49.943 --> 00:30:51.542
You know, you didn't put any of that language in.
711
00:30:51.542 --> 00:30:52.375
I agree.
712
00:30:52.375 --> 00:30:54.590
That would've been the better course here.
713
00:30:54.590 --> 00:30:57.568
Well, and more importantly, within 30 days you didn't ask
714
00:30:57.568 --> 00:30:59.526
for that modification
715
00:30:59.526 --> 00:31:00.866
to the award.
No.
716
00:31:00.866 --> 00:31:03.375
The district is not disputing the validity
717
00:31:03.375 --> 00:31:04.913
or the applicability of the award.
718
00:31:04.913 --> 00:31:08.133
What it is saying is that confirmation here,
719
00:31:08.133 --> 00:31:10.806
there's not a mandatory statutory right
720
00:31:10.806 --> 00:31:13.283
to confirmation in the absence of a dispute.
721
00:31:13.283 --> 00:31:14.540
And in this instance-
722
00:31:14.540 --> 00:31:16.185
There is a dispute,
723
00:31:16.185 --> 00:31:17.514
and there is even an Article 3.
724
00:31:17.514 --> 00:31:18.347
Well, it's a new dispute.
725
00:31:18.347 --> 00:31:21.448
There's an Article 3 dispute here.
726
00:31:21.448 --> 00:31:22.352
We don't even need to worry
727
00:31:22.352 --> 00:31:26.091
about whether there's a difference between us and the feds.
728
00:31:26.091 --> 00:31:27.207
Well, as this court is-
There's a case
729
00:31:27.207 --> 00:31:28.159
in controversy here.
730
00:31:28.159 --> 00:31:30.981
You guys are fighting over whether you're complying
731
00:31:30.981 --> 00:31:33.227
with the award or not.
732
00:31:33.227 --> 00:31:34.060
(alarm ringing)
733
00:31:34.060 --> 00:31:36.869
And you say there's good faith language,
734
00:31:36.869 --> 00:31:41.159
he says there isn't, or you're not acting in good faith.
735
00:31:41.159 --> 00:31:42.808
I understand you would prefer this to be fought out
736
00:31:42.808 --> 00:31:44.752
before an arbitrator rather than the court,
737
00:31:44.752 --> 00:31:46.169
but I don't know.
738
00:31:47.291 --> 00:31:49.909
Well, there's a material factual difference
739
00:31:49.909 --> 00:31:51.888
between the current dispute
740
00:31:51.888 --> 00:31:54.298
and the one that the arbitrator previously decided.
741
00:31:54.298 --> 00:31:56.731
If you look, and the union acknowledges
742
00:31:56.731 --> 00:32:00.931
this is in the, or I'm sorry, the transcript,
743
00:32:00.931 --> 00:32:03.537
index I-50 through 51.
744
00:32:03.537 --> 00:32:04.900
When confronted with the question
745
00:32:04.900 --> 00:32:06.981
about the union's true motives for confirmation,
746
00:32:06.981 --> 00:32:09.779
the union takes issue with, they believe,
747
00:32:09.779 --> 00:32:12.601
a number of those cluster paraprofessional substitutes.
748
00:32:12.601 --> 00:32:16.438
They're being utilized as long-term substitutes.
749
00:32:16.438 --> 00:32:18.066
They're being misclassified.
750
00:32:18.066 --> 00:32:19.250
One other question.
751
00:32:19.250 --> 00:32:21.288
Is the good faith provision
752
00:32:21.288 --> 00:32:22.904
the collective bargaining obligation,
753
00:32:22.904 --> 00:32:25.807
or is that actually in the contract somewhere?
754
00:32:25.807 --> 00:32:28.665
That you're compliance with these provisions
755
00:32:28.665 --> 00:32:30.915
is subject to a good faith?
756
00:32:32.277 --> 00:32:33.677
Are you supplementing that
757
00:32:33.677 --> 00:32:35.773
with the unfair labor practice standards?
758
00:32:35.773 --> 00:32:38.477
No, the collective bargaining agreement as a whole, yes,
759
00:32:38.477 --> 00:32:41.185
that would be under 150E, the good faith bargaining.
760
00:32:41.185 --> 00:32:42.505
This collective bargaining agreement-
761
00:32:42.505 --> 00:32:44.163
The implementation of an award,
762
00:32:44.163 --> 00:32:46.995
there's language in our contract for implementation
763
00:32:46.995 --> 00:32:49.900
and it says that the committee will utilize its best efforts
764
00:32:49.900 --> 00:32:53.245
to implement an arbitrator's award within 30 days
765
00:32:53.245 --> 00:32:55.619
of its decision not to vacate or modify,
766
00:32:55.619 --> 00:32:57.287
you know, something along those lines.
767
00:32:57.287 --> 00:32:59.037
So I would say again-
768
00:32:59.978 --> 00:33:01.679
Didn't move to vacate or modify.
769
00:33:01.679 --> 00:33:03.574
No, no, again, we're not disputing.
770
00:33:03.574 --> 00:33:06.016
We've done our best to comply.
771
00:33:06.016 --> 00:33:10.308
At the time that the union filed the application
772
00:33:10.308 --> 00:33:14.328
for confirmation, the district had 16 of those positions.
773
00:33:14.328 --> 00:33:17.152
They were actively trying to hire the two others.
774
00:33:17.152 --> 00:33:19.608
And if the court wants
775
00:33:19.608 --> 00:33:22.358
to invite futile contempt actions
776
00:33:23.568 --> 00:33:25.366
in these situations, I would-
777
00:33:25.366 --> 00:33:28.112
[Justice Wendlandt] You say it would be futile?
778
00:33:28.112 --> 00:33:30.103
Well, so you have a-
779
00:33:30.103 --> 00:33:31.901
I guess it wouldn't be good for your client,
780
00:33:31.901 --> 00:33:34.505
but why would it be futile?
781
00:33:34.505 --> 00:33:37.771
'Cause the district, like I said,
782
00:33:37.771 --> 00:33:41.487
they are utilizing their best efforts to hire.
783
00:33:41.487 --> 00:33:43.565
If the district can't hire anybody,
784
00:33:43.565 --> 00:33:45.370
the court wants to find them in contempt
785
00:33:45.370 --> 00:33:48.044
when it's at no fault of their own.
786
00:33:48.044 --> 00:33:49.483
I mean, let's, you know,
787
00:33:49.483 --> 00:33:53.150
go back to during COVID there was obviously,
788
00:33:54.256 --> 00:33:56.002
you know, reservations, people hesitated
789
00:33:56.002 --> 00:33:58.771
to come back to work in person,
790
00:33:58.771 --> 00:34:01.521
particularly in a school setting.
791
00:34:02.412 --> 00:34:03.245
It's difficult.
792
00:34:03.245 --> 00:34:04.866
And across the board, across the nation,
793
00:34:04.866 --> 00:34:07.013
there is a struggle for schools
794
00:34:07.013 --> 00:34:08.198
to fill all the positions.
Maybe why you
795
00:34:08.198 --> 00:34:09.890
would win the contempt.
Exactly.
796
00:34:09.890 --> 00:34:11.463
You may win the contempt,
797
00:34:11.463 --> 00:34:15.658
you may have very good defenses to a contempt action,
798
00:34:15.658 --> 00:34:18.658
but they just want to get into court
799
00:34:19.633 --> 00:34:22.100
and say you are in contempt.
800
00:34:22.100 --> 00:34:26.173
And then the court is doing what well-settled case law,
801
00:34:26.173 --> 00:34:27.798
including the, you know,
802
00:34:27.798 --> 00:34:30.202
the steel workers trilogy of cases.
803
00:34:30.202 --> 00:34:33.044
Courts are not empowered,
804
00:34:33.044 --> 00:34:35.374
when parties agree to resolve their disputes
805
00:34:35.374 --> 00:34:36.259
through arbitration,
806
00:34:36.259 --> 00:34:38.448
courts not empowered to perform fact finding.
807
00:34:38.448 --> 00:34:39.281
And that's what the union
808
00:34:39.281 --> 00:34:40.268
is asking you to do.
No they are empowered
809
00:34:40.268 --> 00:34:41.492
to enforce when you don't comply
810
00:34:41.492 --> 00:34:42.564
with what you agreed to do.
811
00:34:42.564 --> 00:34:45.354
that's different.
Understood.
812
00:34:45.354 --> 00:34:47.101
I would just, again,
813
00:34:47.101 --> 00:34:48.412
I see that I'm over on my time, but-
814
00:34:48.412 --> 00:34:50.177
Bar, so I think we got it.
815
00:34:50.177 --> 00:34:52.346
I'll rest on my briefs and thank you.