George Shattuck filed a timely appeal under G. L. c. 32, s. 16 (4) of the July 12, 2006 decision of the Teachers' Retirement System (Board) that per-diem payments he received for teaching an extra class during the 2005-2006 school year were not deemed to be regular compensation for the purpose of computing his retirement allowance. (Exs. 1, 2.)
I held a hearing on July 11, 2008 at the office of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, MA. I admitted documents into evidence. (Exs. 1 - 11.) I marked the Petitioner's pre-hearing memorandum "A" for identification, and the Respondent's pre-hearing memorandum "B" for identification. The Petitioner testified. There is one tape cassette of the hearing. The parties stipulated to facts in "A" and "B."
By letter of August 2, 2008, the parties requested that the decision be held in abeyance for 30 days while the parties determined whether a second witness would be needed, and the Mass. Teachers Association was deciding whether to grieve a certain contract provision in the Collective Bargaining Agreement (CBA). I allowed the Motion and ordered a Joint Status Report be filed on September 5, 2008.
By letter of September 10, 2008, the parties indicated that the union decided to arbitrate the pending grievance concerning the docking of sick time from compensation for teaching an extra class, and surmised that the arbitrator's award would clarify the CBA. I ordered the parties to file the next status report on November 12, 2008.
By report of November 11, 2008, the parties reported that selection of an arbitrator was pending. I ordered the parties to file the next status report on January 12, 2009.
By report of January 12, 2009, the parties indicated that scheduling of the arbitration hearing was pending. I ordered the parties to file the next status report on March 20, 2009.
By report of March 18, 2009, the parties indicated that the arbitration hearing was scheduled for June 25, 2009. I ordered the parties to file the next status report on June 30, 2009.
By report of June 29, 2009, the parties reported that post-hearing briefs were due August 7, 2009, with the arbitrator's award due 35 days after receipt of the briefs. I ordered the parties to file the next status report on September 18, 2009.
By letter of September 10, 2009, the parties reported that the arbitrator's award was due on October 5, 2009.
By letter of September 30, 2009, the parties enclosed a copy of the arbitrator's award. I marked the arbitrator's award Exhibit 12.
By letter of October 8, 2009, I informed the parties that if I did not hear from them in ten days, I would issue a decision. I did not hear from the parties.
I marked the foregoing correspondence collectively as "C" for identification.
FINDINGS OF FACT
1. George Shattuck, d.o.b. 6/10/1949, taught in the Worcester School System from 1972 until he retired for superannuation on June 30, 2006. ("A," "B")
2. At the time of his retirement, Mr. Shattuck was an English as a Second Language (ESL) teacher at South High School. ("B")
3. Under the CBA between the Worcester School Committee and the Educational Association of Worcester in effect from September 1, 2005 to August 31, 2006, Mr. Shattuck was not required to teach more than five periods a day, with one preparation period, under Article XXVII, paragraph 13. (Ex. 3.)
4. Under Attachment "C" of the CBA, a teacher could volunteer to teach an extra period each day. "In exchange for assuming these teaching duties, the teacher shall be paid an amount equal to one-fifth (1/5) of his/her per diem pay for each period assumed." (Ex. 3, p. 120, Attachment "C.")
5. In January 2006, Mr. Shattuck agreed to the school administration's request that he teach an extra ESL class. Mr. Shattuck taught the extra ESL class from January 23, 2006 to the end of the school year. (Exs. 5, 7.)
6. Mr. Shattuck was paid 1/5 of his per diem pay for each period that he taught. He was not paid for three days that he was out sick: January 31, February 14 and February 15, 2006. (Exs. 4, 7.)
7. The Education Association of Worcester, Inc. grieved the failure of the school to pay 1/5 of per diem pay for sick days taken by teachers who taught an extra class under Attachment "C" of the CBA. (Ex. 8)
8. The arbitrator held, "That the School Committee did not violate Attachment C to the Collective Bargaining Agreement when it did not pay George Shattuck 1/5th of his per diem rate of pay for those days when he was out sick and did not teach an extra period (i.e. sixth period), and the grievance is denied." (Ex. 12.)
CONCLUSION AND ORDER
The decision of the Teachers' Retirement System is affirmed. The remuneration paid to George Shattuck for teaching an additional class from January 23, 2006 to the end of the school year in accordance with Attachment "C" of the CBA is not "salary" and therefore does not constitute "regular compensation" to be included in the calculation of his retirement allowance.
G. L. c. 32, s. 1 defines regular compensation as "salary, wages or other compensation in whatever form, lawfully determined for the individual service of the employee by the employing authority, not including bonus, overtime, severance pay … early retirement incentives, or any other payments made as a result of giving notice of retirement. … In the case of a teacher employed in a public day school who is a member of the teachers' retirement system, salary payable under the terms of an annual contract for additional services in such a school … shall be regarded as regular compensation rather than as bonus or overtime and shall be included in the salary on which deductions are to paid to the annuity savings fund of the teachers' retirement system." (emphasis supplied)
Under the Board's regulation, 807 CMR 6.02, regular compensation includes salary payable under the terms of an annual contract for additional services, if four specific criteria are met.
This raises the question of whether the remuneration paid to the Petitioner under the terms of Attachment "C" of the CBA constitutes salary, as that term is used in
G. L. c. 32, s.1 and 807 CMR 6.02. I conclude that it does not.
In Hallett v. CRAB, 431 Mass. 66, 725 N.E.2d 222 (2000), the Supreme Judicial Court (SJC) determined that hourly payments to a teacher for teaching driver education before and after normal school hours did not constitute salary, and could not therefore, constitute regular compensation.
The SJC noted that G. L. c. 32, s. 1 "starts with three terms: 'salary, wages or other compensation in whatever form.' However, when the Legislature addressed teachers, it provided that only 'salary' for additional services is part of regular compensation." Id., 431 Mass. at 69,
The Court noted a distinction between the words "salary" and "wages," citing the case of Coco v. School Comm. of Boylston, 392 Mass. 221, 466 N.E.2d 118 (1984), where the meaning of the word "salary" in G. L. c. 71, s. 43 was at issue. "[T]here is considerable authority from other jurisdictions, and some guidance from Massachusetts precedent, for interpreting the term 'salary' to refer to a fixed annual or periodic amount of pay depending upon the period of employment rather than upon the number of days or hours worked within that period." Hallett, 431 Mass. at 68-69.
The Court opined that the "statutory intent is clearly to exempt irregular payments of compensation from the retirement base" because G. L. c. 32, s. 1 excludes bonus, overtime and severance pay from the definition of regular compensation. "Hourly compensation paid on an irregular basis is more akin to overtime payments than to annual salary." The Court held that the Legislature did not intend "to include periodic hourly payments as part of regular compensation for teachers for the purpose of determining retirement benefits." Id. at 70.
In the instant case, the Petitioner received pay of 1/5 of his per diem pay "for each period assumed." He was not paid for the periods he did not teach when he was out sick.
Based on the holding in Hallett, I conclude that the Petitioner was paid periodic hourly payments for his work, depending not "upon the period of employment" (from January 23, 2006 to the end of the school year), but upon the days or hours worked within that period." Those payments do not constitute salary, and they therefore cannot constitute regular compensation.
The decision of the Board to exclude from regular compensation the remuneration the Petitioner received for teaching an extra class in accordance with Attachment "C" of the CBA is affirmed.
DIVISION OF ADMINISTRATIVE LAW APPEALS
Maria A. Imparato