-: SJC-13491.
Boston Teachers Union, Local 66,
v. Boston Public Schools.
Justice Budd: Okay, Attorney Pollard,
whenever you're ready.
-: Thank you, Your Honors.
And may it please the court, my name is Nick Pollard
and I represent the Boston Teachers Union.
The union in this matter is entitled to the confirmation
of an arbitration award at issue,
which required the district to hire 18
of a subcategory of paraprofessionals known
as cluster paraprofessional substitutes.
I'll be calling them cluster para subs for brevity's sake.
The union argues, although it is not required
to allege or prove non-compliance
in order to achieve confirmation
that it does have both in the instance of this case
and that fundamentally it is only attempting
to confirm an award that has not yet been complied with.
The award in question, which was issued on July 28th of 2020
included a very simple command.
That command was the district hire
and maintain 18 cluster para subs.
It is based on a contract provision that is similarly simple
that states the district shall hire
18 cluster paraprofessional subs.
The arbitrator in that award found that they had not.
We argue and we believe that there was sufficient evidence
before the Superior Court to suggest
that they still have not complied with that award.
-: Assuming we don't agree with you
with respect to the ongoing dispute,
tell me why Derwin was wrongly decided.
-: I'm sorry? -: Tell me why Derwin
was wrongly decided, the First Circuit case.
-: Ultimately, it relied on two cases
that did not support the propositions
for which they were cited.
They attempted to use two cases to suggest
that the shall/unless formulation of Section 10
of Chapter 150C actually is a may/if.
That there is a test
that there must be prospective effect to the award,
which by the way, our award does have,
and that there must be no conceivable reason
to not apply the award to a new dispute.
The reason why that's an issue in this particular case,
and the reason why Derwin should be ignored
in this particular case is that there is no such new dispute
to be distinguished or not
between what the award stood for and its confirmation.
There is only the same dispute
that the district has failed to hire
and maintain 18 cluster para-
-: It's an easy case if we think
that there's an ongoing dispute.
I'm trying to get you to answer the other question
about in the normal course of things,
if there's no dispute, right,
should we have these ministerial confirmations?
That's really the issue,
why we took the case to decide.
-: Okay, and and I do believe the answer is
still yes, Your Honor.
Fundamentally, there need not be non-compliance
for confirmation to be useful.
There could be, for instance, contemplated non-compliance
or a history of non-compliance with a particular employer.
There could be a concern that down the road,
this may not be complied with
over an extended period of time.
Non-compliance is the theme,
but it doesn't necessarily have to be something
that is true to fact in existence
at the time of confirmation.
in order for confirmation to have utility,
-: Do we need to get there
as far as whether it makes sense or not,
if we just stick with the plain language?
-: I'm sorry? -: If we just stick
with the plain language,
we don't have to get to whether it makes sense.
-: Correct, the plain language in my mind
avoids this issue in its entirety
and entitles us by right to confirmation irrespective
of the new dispute issue.
-: But so you both agree
that the award is proper
and there's no dispute.
The arbitrator decided this
and you both agree you're bound by it, right?
-: Correct. -: So by confirming,
you're confirming something you agree on.
-: We would- -: Bear with me for a second.
-: I apologize. -: So, right?
Is that right? -: That is correct.
-: So what we're really doing is we're shifting
the form of the next fight
and that seems to be what Durham
or Derwin is concerned about,
is that courts are gonna be
now into the next,
instead of the fight you're really having,
which is okay, they can't get teachers to get this 18,
which may be brought back to another arbitrator.
That's gonna now be fought out in court.
Isn't that what sort of driving Derwin,
which is if you guys agree on things, don't come back to us.
-: I think that that's an accurate description
of what seemed to concern the Derwin court.
But I think that this is inextricably linked
to the issue of the new dispute.
The concern with Derwin,
and I think the Mass corrections officer's case too,
was concerned about a union attempting
to use an arbitration award
to extend that award to a new fight
that would more appropriately be brought
before a new arbitrator because there are new facts
and new facts that need to be found,
potentially new contract violations that need to be found.
-: That's the nub of this
that makes this a difficult case
because you're really not here
to dispute what the arbitrator did.
You're really here 'cause you won an award
so that you'll go back to court
to fight out the next fight, right?
-: Well, the next fight, Your Honor, is the same fight
that we had with Arbitrator Daly,
which is that the district has failed to hire these folks.
The only thing that's changed
between now and then is the district's excuse
for not hiring these folks.
The facts- -: Sorry to interrupt.
Can you just talk through the practicalities
of the meaning of,
if we were to agree with you
that Section 10 does allow for, and ignoring this dispute
and going to Justice Kafker's question relating
to how this is gonna work in general,
what is the practical consequence
of permitting trial courts,
as Section 10 seems to say, to just confirm,
at any point seemingly, just to confirm that this exists
and reduce this to a court judgment?
Can you talk about the practicalities of what that means,
both in the ordinary case
where there's not a new dispute
and then when there is a new dispute?
-: Sure, in the ordinary case where there is no new dispute,
I think that there is something to be said
for both sides as acknowledging the finality of an issue
and it will maybe facilitate future bargaining
if there remains an issue
about the facilitation of that award.
-: But, the trial court hasn't added anything new.
The trial court has just entered a judgment, correct?
-: Understood. Yes.
-: So what does that do in the world?
-: Well, when there is no dispute,
it would largely do nothing.
-: Well, wouldn't it allow for contempt?
Isn't that the whole point?
-: It would allow for contempt,
I was answering the question under the hypothetical
there being no dispute, so-
-: Sorry, I meant by no dispute, I meant no new dispute.
Like no dispute that arguably needs to be arbitrated.
Rather, you know, what you're contending here
is we're not talking about anything
other than just wanting our 18 paras.
That's all we're talking about. That's all we want.
And so that obviously is the same dispute.
So I guess I'm asking leading questions.
I think that there is a point
which is that you can get contempt at that point,
And I think that they are unhappy about that
as discussed in Derwin because there's a concern
that the contempt power will be improperly used
to usurp the role
of arbitration in these ongoing relationships.
So can you specifically address
why the existence of a judgment
that would exist following a Section 10 confirmation,
what would happen and how,
I think it would help your case to explain
how actually, you know, you are not just gonna go in
for contempt when there's a new dispute.
-: Understood, Your Honor.
When there is a new dispute,
I think that the first thing the parties would do
and would almost have an obligation to do
because it would almost certainly involve
a mandatory subject of bargaining
is bargain over the dispute.
If it cannot be resolved, and it truly is a new issue,
at which point we would file a grievance
and process it to arbitration
if the issue were truly new.
At that point, we would have a new decision.
Either we'd prevail or we wouldn't.
At that point, if we were to prevail,
I don't believe we would have to go back
to arbitration to re-litigate the same dispute
if the district were to remain in non-compliance,
which I think is this very case.
If in fact there is a new dispute
or if there is not a new dispute, then again,
I think the parties would still seek to bargain
if there is, for example, a good faith effort
on the district to hire folks
but are simply incapable of doing so.
Again, that's a mandatory subject
because it involves the compliance
with an existing contractual provision.
So there's a bargaining obligation
by the district if they're going to say,
"Hey, we can't do this as a matter of practice.
It is effectively impossible."
-: And what happens instead, if the union goes to court
and says, "Look, we got this,"
and tries to do it through contempt.
What would the trial court's options be at that point?
-: I think the trial court then would have
to essentially find facts determining
to what degree the district
is truly out of compliance with the award.
Whether or not there has been a good faith effort
to make these hires, whether or not the folks-
-: It does shift to the court the next step.
That may be right, that may be appropriate,
particularly in this context, but that's the concern, right?
That now instead of you going to the arbitrator
back to Joe Daly
and saying, "Hey, they're not complying with this thing,"
you're going to court saying, "They're in contempt."
-: But at a certain point,
that does become necessary, Justice Kafker.
-: Well, that's why you're here, right?
You're not here because that's what you want.
You want the courts
to now have be enforcing this rather than,
I'm not saying you're wrong,
I'm just saying that's why you're here.
-: Yes, and I think I may be being pedantic,
but the shift is what lost me in the question
because I don't believe it's a shift.
I believe it's exactly what Section 10 contemplates:
that at a certain point the court is going
to have to find those facts.
In the absence of that, we would have an ouroboros
just going back to arbitration, winning an award.
-: Well, in your universe,
there are a lot of subsequent fights
over the meaning of these things.
And the question is is it bound by the original decision
or is it really a subject of a new arbitration?
And that's where this gets harder.
-: And I think actually the pleadings and the material
before the Superior Court clarified
that issue quite a bit.
In its opposition to the union's motion
for judgment on the pleadings,
the district attached two emails,
which are in the record appendix before you,
that purported to list the cluster para subs
that were active in the district at the time.
They numbered 13 and there were a another three
who I believe were called surround care cluster paras.
So being charitable and assuming that's the same job
and that's an accurate description
of each of those 16 folks,
we know that they haven't hired 18.
-: Right, but that's the First Circuit's concern
is that may not be a federal case,
that may be more an arbitration matter.
But, again, I see your point
and the language shall says you shall confirm.
'Cause I guess the court can just say, "Hey,
this is a subject for new arbitration, right?"
They can decide that,
but then you're forcing the Superior Court judges
to do this.
-: Yeah, and and our concern, Your Honor, is that ultimately,
especially when we're talking about hiring,
a hiring cycle occurs every year.
Therefore there will be new facts, such as they are,
every single year for the district to be able
to trot out and say, "Hey, this is what we did this time
and 16's close enough, maybe."
-: But think of the contempt proceedings, right?
So if that's the case, you go to the Superior Court
for a contempt order every year
because there's noncompliance.
-: Well, in the event that there's non-compliance,
I have to go somewhere every year and fundamentally-
-: Well as opposed to bargaining in arbitration.
-: Well, we've already bargained the,
it's a contract provision.
We have it, and in order to enforce it,
we're going to need a court order,
otherwise we would be going back
to arbitration every year getting a new award
because there are slightly different facts excusing,
in the district's view, the non-compliance,
and we'll have a role.
-: But you have a contempt.
You have an order in your hand, that's the issue.
And as Justice Kafker says, the issue here
is the next fight, not this one.
I'm sorry, Justice Wendlandt.
-: Can you address Article 3 of the federal constitution,
which limits the jurisdiction
of federal courts like the First Circuit
to cases and controversies.
We don't have that in our state constitution,
so it seems to me that there may be a difference
between what you're seeking from the Superior Court
under our statute versus what was occurring in Derwin,
where the First Circuit needed to find a case
or controversy and couldn't find one.
-: Yes, agree, Justice Wendlandt.
I think that's a significant difference
and perhaps explains the Derwin court's
reasoning a bit more.
We don't have an issue here
where if there is no act of controversy,
then there is no reason to be in front
of a Superior Court judge.
We don't have to deal with that issue.
And I think that that may have been something
that the legislator considered when it gave
such a clear mandatory demand in that statute,
or command in that statute.
-: Okay, and is this in any way similar to a consent decree
where both parties, there was a dispute,
the parties have now resolved it, they go to the court
with a mutually agreed consent agreement
and they ask for the court to enter it?
Is there a difference between this and that?
-: I don't think one that's meaningful,
that issue admittedly hadn't been raised below,
so it's the first time I'm thinking about it,
but I don't believe that there is a meaningful difference
between the two.
-: Okay, thank you. -: Can I ask one last question?
This circuit split still exists, right?
The federal circuits?
The Third Circuit goes one way,
the First Circuit goes the other,
the Second Circuit's more along the lines
of the Third Circuit? -: I believe so.
-: And the Supreme Court hasn't taken one
of these cases, right?
-: That's correct.
And if there are no further questions, I'd rest on my brief.
-: Thank you. -: Thank you.
Justice Budd: Okay, Attorney Pidani.
-: Good morning, and may it please the court,
Michael Pidani on behalf of the Boston Public Schools.
-: Will you just explain why your client's so concerned
about this issue at all?
What's the big deal?
-: Well, I think Derwin highlights some of those issues
and I believe Justice Dewar commented on them.
There's A, the possibility that,
and in this case we don't have to speculate.
There is a concern that the the scope of the award
is trying to be expanded to issues
that were not part of the initial grievance.
-: Isn't that your next litigation
when they tried to do that?
I don't understand exactly why the Superior Court
can have the authority not to comply
with the statutory mandate
to enter the confirmation.
Maybe if your client violates
or is alleged to violate the arbitration award,
maybe at that point, if there's an expanded use
of the award in your view, that's when you argue that.
But I don't understand why at this present time
the Superior Court need not comply with the statute.
-: Well, I would first, to your point, Justice Wendlandt,
the statute doesn't have the mandate
that the union suggests.
The mandatory- -: It does say shall.
-: It does, but you can't- -: Pretty good.
-: Look at the section 10 in isolation.
You have to look at it as a part
of a much broader statutory scheme.
In Chapter 150C when it was enacted in 1959,
it was by way of an act providing
for the judicial enforcement
of collective bargaining agreements to arbitrate.
And as this court has previously said
in Murphy versus National Union Fire Insurance Company
dealing with Chapter 251, Section 11,
it's a confirmation statute
with nearly identical language that confirmation,
the purpose of confirmation is to allow a plaintiff
to collect an unsatisfied award
by obtaining a judgment that can be enforced.
-: Isn't that the purpose of enforcement?
-: Exactly, and that's what-
-: But that's different.
Enforcement and confirmation seem
to be two different things.
I think it's Section 13 that is about enforcement
and Section 10, which is the only thing
that's at issue here, is about confirmation.
-: Well, Section 10 is the mechanism
that somebody would use in order
to go about seeking enforcement.
-: Step one, right? Step one is Section 10.
That's where we're at here.
If there's some dispute about enforcement,
that's Section 13.
And I guess my question is why do we have
to determine that now?
-: Well, that would not be-
-: (sneezes) Excuse me. -: Bless you.
-: That's inconsistent with the purpose of arbitration.
Arbitration is intended to provide finality
in a much more cost effective,
in much faster manner- -: Counsel-
-: And all we're doing is- -: Sorry, absolutely,
we understood the purposes of arbitration
and important role it plays,
but can you address what the argument
that we were discussing earlier or the situation
where they've won the arbitration,
the district has not hired 18 paras,
maybe has hired however many, has not hired 18,
what do they do then?
-: So I think- -: Do they have to arbitrate
again the same point
that the district still hasn't hired 18 paras,
which they already won in front
of an arbitrator or can they go to court?
-: It depends, if the district has flat-out not complied,
they have made no attempts to post any of those positions,
essentially they've repudiated the award.
-: So the arbitrator's decision is subject
to a good faith standard where the district
doesn't actually really have to do it as long
as they sort of are trying?
-: No. -: They won.
-: They got a arbitration
that's supposed to settle this finally
through a sufficient means saying
the district has to hire 18.
The district didn't challenge that
in any way, shape or form.
So what does the union then do about the fact
that the district has not hired 18?
-: So I think to best illustrate
what you're getting at, and this is a case,
it was not referenced in the appellate's brief.
It's a case out of the First Circuit
that I do want to draw to the court's attention
because I think it'll help illustrate
what you're talking about
in the issue that we're grappling with.
It's Armco employees Independent Federation Incorporated,
it's 65F.3D, as in David, 492,
Sixth Circuit, 1995.
And so in dealing with confirmation,
a court is able to distinguish an actual failure to comply
with an award which it's empowered to remedy from,
for example, a response whose adequacy
in compliance with an award is ambiguous
and where the arbitrator must first make a decision.
The case law is clear that the courts
are not empowered to perform fact finding
or second-guessing when parties agree
to resolve their conflicts.
-: But counsel, I don't think,
and correct me if I'm wrong,
but I don't think there's any dispute
that the arbitrator found
the district has to hire 18 people.
This strikes me as a relatively clear decision, right?
It's like a number of people who have to be hired
and I don't understand the district to be arguing
that it did hire 18 people
or that there's even any dispute about that.
So it's pretty clear cut here.
I could see that it could be not clear cut in other cases,
but can you address,
I will look at the case, I appreciate the reference to it,
but just as a practical matter,
what is your understanding of what should happen?
What should the union do when they've won the arbitration?
The arbitration said hire 18
and they don't hire 18.
-: If the district has made no attempt, a flat-out failure,
they can come and seek confirmation.
It would be appropriate for the court to confirm the award
and enter judgment in order to-
Justice Kafker: The standard you've made no attempt.
You've gotta- -: No, the district has,
that's the thing.
-: The standard for enforcing an arbitration agreement
is not whether you've made no attempt to comply.
You have to comply, right?
So that can't be the answer about whether the court
should intervene or not.
-: Well, in this particular case,
the parties' collective bargaining dispute
for it not to be enforced, right?
It has to be something different enough that you have
to go back to an arbitrator for.
-: Correct, yes.
But also, the courts have been reluctant
to confirm an award where the arbitrator
is merely acknowledging or saying
that the district has to comply with the provision
of its contract.
The contract said, "You have to hire
18 cluster substitute paraprofessionals."
-: You're pushing them to get to go to court.
We have tons of arbitration awards
that we don't have these, you know, certificates,
but you're now gonna force them as soon as they do this,
to go to court and get every one of these
supported by an order if you keep this up, right?
'Cause right when they got this award, right,
they could immediately have gone in and done this, correct?
You would've had no grounds
for a superior court judge not to enforce this, right?
If they went in right after the arbitration award,
came in with this federal statute says you shall issue this,
you would've had to do it, right?
The superior court judge would've had to do this, right?
Well, the only issue now is because time has passed,
whether now it's sort of like something different.
-: Well, to answer your question,
as far as you know them,
you have to look at the statute Section 10 again,
as part of a broader scheme-
-: Daly issued this award.
When he issues that award, they have the right
to go to court and get that-
-: For enforcement purposes.
If you look at the various parts
of Section- -: Don't have the right
to just get it, sir?
-: If you look at the various parts of Chapter 150C,
Chapter 150C, it outlines the limited role
that courts play in the arbitration process.
And there's always something that triggers that.
It's a party's failure to do something, a refusal.
So Section 2, it outlines the circumstances
where a court can issue a stay of arbitration
or order parties to go arbitrate.
I believe Section 4 or 5, that outlines the instances
where a court can appoint an arbitrator
and Section 10 is no different.
Section 10, it triggers when a party has failed
to comply with an award.
Either they- -: No, it doesn't.
-: No, that's 13. -: That's different.
-: Section 10 says the court shall confirm
unless there has been some dispute
about the arbitration award
in a specific time period, right?
So that's the trigger.
Unlike the other provisions
that you're saying require the court
to withhold its power in some way,
Section 10 specifically says, you shall confirm
unless your client disputes the award,
seeking a modification, whatever it is.
And in this case,
your client didn't do it in the time period,
so I don't really understand your argument
that it requires a continuing dispute.
I mean, isn't this like a consent decree
where there was a dispute, the parties resolved it
in this way through arbitration,
everybody had the opportunity to come forward
and dispute the arbitration award and time has passed
and now the superior court shall confirm?
I don't understand the argument to the contrary.
And frankly the federal cases are all about Article 3
of the federal constitution,
which requires a case in controversy.
We don't have that in our state constitution.
-: We don't have that in our constitution,
but this court has itself in the Murphy
versus National Union Fire Insurance Company case in 2003
it said verbatim, "It is well established
that courts resolve actual controversies."
And dealing with the confirmation statute
in Chapter 251, the court said that the purpose
of confirmation is to allow a plaintiff
to collect an unsatisfied award.
And in that instance, it declined to confirm an award,
even though it has the mandatory shall language,
which suggests that there is room
for the court's discretion
to determine if confirmation
would serve a useful purpose in-
-: Well, isn't there a useful purpose?
-: In this instance, no,
'cause the district's positions-
-: But the district has not hired
the 18 paraprofessionals.
-: The parties' collective bargaining agreement says
that the district will utilize its best efforts
to implement an award.
-: Is that what the arbitration award says?
-: The award says that it will comply with that provision,
but you can't again look at that provision
in a vacuum. -: So you're saying that given
that your client has actually used best efforts
and just hasn't found 18 people, right?
-: And it would be- -: So that complies
with the arbitration award.
-: It would be for an arbitrator to decide
what best efforts means in the context of hiring,
because as we know, people get fired,
they leave, they get promoted.
So there will be times where the district will be under 18.
And so is this court suggesting that anytime that happens,
the union or any union would come
and file a contempt action?
That is not the most effective use of judicial resources.
-: Attorney Pidani, I guess if I could,
when would anyone ever get confirmation in your world
of an arbitration decision?
-: So let's say for example,
the award required somebody to be reinstated
and awarded back pay,
and the district has not given that back pay.
In that situation, confirm the award
and you get that judgment that can be used
if the district continues to fail to comply.
'Cause you have to take it to its logical extreme.
If you're saying that the court, no matter what,
shall confirm an award as long as a application
to vacate or modify was not filed within 30 days,
you could conceivably have an arbitration award
from 30 years ago,
somebody come and seek confirmation,
and then try to file a contempt action
even though there's a successor agreement and it's not-
-: Every time you dip below 18 paras
through no fault of your own, you're facing contempt?
-: Correct, and the appropriate course would be
for an arbitrator to clarify the award.
What does best efforts mean?
-: I'm just looking at the award.
-: It's not in the award, it's in the other provisions-
-: Award is the exact opposite, right?
I mean, let's just read the award.
"The Boston School Committee violated Article 2.
To remedy this violation,
the committee is ordered to prospectively comply
with its contractual obligation to hire
and maintain 18 cluster paraprofessional."
Then I'm reading Article 2 of the,
am I reading this correctly?
"The school de department shall hire
18 cluster building paraprofessional substitutes."
-: That provision was in the contract.
The award is just saying comply with the contract.
-: So where's this good faith?
-: In the section,
and this is in the supplemental appendix of the appellee.
-: The arbitrator didn't say,
"You shall exercise good faith, right?
-: The arbitrator said, "Comply with the contract."
And so you look at the contract as a whole.
The contract doesn't have this wishy-washy language
on Article 2 either, right?
-: It no, it does. That's verbatim from the contract.
All he's doing is- -: In the contract.
Am I misreading it?
Section 15 of Article 2,
"The school department shall hire
18 cluster building professional."
Am I misreading that?
-: Nope, that's the language in the contract.
-: So that's kind of not good faith.
That's kind of hire 18.
-: Hire 18.
But when it comes to implementation of the award,
this is in the section of the contract
concerning the dispute resolution process.
It says that the district will utilize
its best efforts to implement an award.
-: Isn't that exactly why they are seeking a court order?
Because you're trying
to read in flexibility that doesn't exist.
That's why they need,
and that's probably why they should have gone
right up front and got the award.
-: But there needs to be flexibility
because in the labor and management relationship,
there will be instances where the district will be under 18
and we don't want these contempt actions, and really-
-: But why didn't you negotiate a provision
that says, "The school department shall hire
18 cluster building paraprofessional substitutes
to the best of its abilities,
subject to the economic conditions?"
You know, you didn't put any of that language in.
-: I agree.
That would've been the better course here.
-: Well, and more importantly, within 30 days you didn't ask
for that modification
to the award. -: No.
The district is not disputing the validity
or the applicability of the award.
What it is saying is that confirmation here,
there's not a mandatory statutory right
to confirmation in the absence of a dispute.
And in this instance-
-: There is a dispute,
and there is even an Article 3.
-: Well, it's a new dispute.
-: There's an Article 3 dispute here.
We don't even need to worry
about whether there's a difference between us and the feds.
-: Well, as this court is- -: There's a case
in controversy here.
You guys are fighting over whether you're complying
with the award or not.
(alarm ringing)
And you say there's good faith language,
he says there isn't, or you're not acting in good faith.
I understand you would prefer this to be fought out
before an arbitrator rather than the court,
but I don't know.
-: Well, there's a material factual difference
between the current dispute
and the one that the arbitrator previously decided.
If you look, and the union acknowledges
this is in the, or I'm sorry, the transcript,
index I-50 through 51.
When confronted with the question
about the union's true motives for confirmation,
the union takes issue with, they believe,
a number of those cluster paraprofessional substitutes.
They're being utilized as long-term substitutes.
They're being misclassified.
-: One other question.
Is the good faith provision
the collective bargaining obligation,
or is that actually in the contract somewhere?
That you're compliance with these provisions
is subject to a good faith?
Are you supplementing that
with the unfair labor practice standards?
-: No, the collective bargaining agreement as a whole, yes,
that would be under 150E, the good faith bargaining.
-: This collective bargaining agreement-
-: The implementation of an award,
there's language in our contract for implementation
and it says that the committee will utilize its best efforts
to implement an arbitrator's award within 30 days
of its decision not to vacate or modify,
you know, something along those lines.
So I would say again-
-: Didn't move to vacate or modify.
-: No, no, again, we're not disputing.
We've done our best to comply.
At the time that the union filed the application
for confirmation, the district had 16 of those positions.
They were actively trying to hire the two others.
And if the court wants
to invite futile contempt actions
in these situations, I would-
-: [Justice Wendlandt] You say it would be futile?
-: Well, so you have a-
-: I guess it wouldn't be good for your client,
but why would it be futile?
-: 'Cause the district, like I said,
they are utilizing their best efforts to hire.
If the district can't hire anybody,
the court wants to find them in contempt
when it's at no fault of their own.
I mean, let's, you know,
go back to during COVID there was obviously,
you know, reservations, people hesitated
to come back to work in person,
particularly in a school setting.
It's difficult.
And across the board, across the nation,
there is a struggle for schools
to fill all the positions. -: Maybe why you
would win the contempt. -: Exactly.
-: You may win the contempt,
you may have very good defenses to a contempt action,
but they just want to get into court
and say you are in contempt.
-: And then the court is doing what well-settled case law,
including the, you know,
the steel workers trilogy of cases.
Courts are not empowered,
when parties agree to resolve their disputes
through arbitration,
courts not empowered to perform fact finding.
And that's what the union
is asking you to do. -: No they are empowered
to enforce when you don't comply
with what you agreed to do.
that's different. -: Understood.
I would just, again,
I see that I'm over on my time, but-
Justice Budd: Bar, so I think we got it.
-: I'll rest on my briefs and thank you.