Civil action commenced in the Superior Court Department on August 10, 2021.

      The case was heard by Maynard M. Kirpalani, J., on motions for judgment on the pleadings.

      Daniel S. O'Connor for the plaintiff.

      James M. Pender (Jacob J. Thaler also present) for the defendant.

      HODGENS, J.  Teaching for four consecutive school years, the plaintiff, Pauline Chaloff (teacher), worked for the defendant, Westwood Public Schools (Westwood).  During her second year, the teacher took fifty-six days of parental leave pursuant to G. L. c. 149, § 105D.  In the spring of the teacher's third school year, Westwood notified her that because her second year was incomplete, she needed to work an additional school year to be eligible for "professional teacher status" under G. L. c. 71, § 41 (PTS or tenure).  When Westwood terminated her employment at the end of the fourth school year, the teacher asserted that she had taught the requisite three consecutive school years to secure tenure and filed a petition for arbitration.  The arbitrator agreed with Westwood.  A Superior Court judge confirmed the award following cross motions for judgment on the pleadings.  We reverse.

      Background.  The parties do not dispute the facts found by the arbitrator.  Westwood hired the teacher through a one-year contract for the 2016-2017 school year.  The teacher joined the teacher's union.  Upon completion of the first school year, the teacher received a second contract for the 2017-2018 school year.  The teacher submitted a request for maternity leave to be taken during the fall of that second school year, and Westwood granted the leave in accordance with G. L. c. 149, § 105D.  That statute guarantees that such leave "shall not affect" the employee's "seniority, length of service credit" or "any other advantages or rights of employment."  G. L. c. 149, § 105D (d).  The leave time itself, however, "shall not be included, when applicable, in the computation of the benefits, rights and advantages."  Id.  The teacher went on maternity leave for fifty-six days and returned to work.  She completed that second school year, and Westwood hired her under a third contract for the 2018-2019 school year. 

      By the early spring of 2019, the teacher began to approach three years of teaching that would normally be a critical point for securing tenure under G. L. c. 71, § 41.  A person who completes "three previous consecutive school years" of teaching "shall be entitled to professional teacher status" unless notified by June 15 that employment will not be offered for the following school year.  Id.  As the phrase implies, "professional teacher status" is a significant career milestone that elevates a teacher from "at will" status and carries procedural and substantive safeguards from adverse employment actions.  See, e.g., G. L. c. 71, § 42. 

      On April 12, 2019, the teacher met with her school's principal who "informed her that because she had taken a [maternity] leave of absence during the 2017-18 school year, she would not be receiving PTS and that she would need to work another year in non-PTS status before a decision would be made."  Later that same day, the assistant superintendent of schools told the teacher that "requiring an extra year in non-professional teacher status was regular practice at the Westwood Public Schools for teachers whose employment had a significant interruption."

      After that meeting, through a fourth contract, Westwood extended her employment for the 2019-2020 school year.  The teacher worked throughout that school year and signed an "educator growth plan" in which she acknowledged that she was "in non-professional teacher status."  On May 15, 2020, Westwood notified the teacher that she would not be hired as a teacher for the next school year.  This notification ended the teacher's employment with Westwood.

      Dissatisfied with Westwood's action, the teacher petitioned the Department of Elementary and Secondary Education and requested arbitration.  See G. L. c. 71, § 42 ("teacher with professional teacher status may seek review of a dismissal decision . . . by filing a petition for arbitration").  During arbitration, she argued that her fifty-six days of maternity leave should not require an additional year of employment to qualify for PTS.  An arbitrator concluded that the teacher did not attain PTS prior to being notified on May 15, 2020, that her contract would not be renewed.  The teacher then filed a complaint in the Superior Court seeking to vacate the arbitration decision, and Westwood filed an answer and counterclaim seeking to confirm the decision.  On cross motions for judgment on the pleadings, a judge allowed Westwood's motion and denied the teacher's motion.  The teacher appealed.

      Discussion.  A reviewing court generally accords deference to the decision of an arbitrator in a collective bargaining dispute governed by the provisions of G. L. c. 150C, §§ 1-16.  See School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 110 (2014).  "Although arbitration decisions are given great deference, they are not sacrosanct."  Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 823 (2005) (Boston).  "Where the determinations to be made are primarily issues of public law, the arbitrator possesses no special expertise" that merits such deferential review.  School Comm. of Hanover v. Curry, 3 Mass. App. Ct. 151, 156 (1975), S.C., 369 Mass. 683 (1976).  "[C]ourts are as well, if not better, positioned to interpret the 'law of the land' in the form of the statutes of the Commonwealth. . . .  Therefore, judicial review of the arbitrator's interpretation of the authorizing statute, particularly regarding the scope of the arbitrator's authority under the statute, is 'broader and less deferential' than in cases of judicial review of an arbitrator's decision arising from the interpretation of a private agreement."  Zagaeski, supra at 112, quoting Atwater v. Commissioner of Educ., 460 Mass. 844, 856-857 (2011).  "[A] reviewing court must vacate an arbitration award under the circumstances set forth in G. L. c. 150C, § 11 (a)," Zagaeski, supra at 111, including if "arbitrators exceeded their powers," G. L. c. 150C, § 11 (a) (3), by rendering an award that violates public policy, Boston v. Boston Police Patrolmen's Ass'n, 74 Mass. App. Ct. 379, 380-381 (2009).  On de novo review of the judgment on the pleadings, id. at 381, we conclude that the arbitration award must be vacated because it penalized the teacher for taking parental leave under G. L. c. 149, § 105D (protected leave).

      We are presented here with a question of law that was expressly left open in Solomon v. School Comm. of Boston, 395 Mass. 12, 19 (1985).  In that case, after working during four school years, a teacher claimed that she secured tenure.  See id. at 14-15.  A Superior Court judge rejected her claim of tenure because the teacher's protected leave during the third school year was a significant interruption in the three "consecutive school years" required for tenure eligibility under G. L. c. 71, § 41.  Solomon, supra at 13-14.  The Supreme Judicial Court disagreed and concluded that "[a] teacher who exercises her constitutionally protected choice to have a child during her first three years of service need not recommence counting three consecutive years of service" (citation omitted).  Id. at 18.  Protected leave "does not interrupt the consecutiveness of [a teacher's] service" for the purpose of obtaining tenure.  Id. at 19.  With the issue of annual continuity resolved, the court "[left] open the question whether such teacher must serve an entire additional year to compensate for the incomplete school year" caused by taking protected leave.  Id.  See Plymouth Pub. Sch. v. Education Ass'n of Plymouth & Carver, 89 Mass. App. Ct. 643, 650 (2016) (declining to address question left open in Solomon where policy arguments were "unripe at this juncture"); Matthews v. School Comm. of Bedford, 22 Mass. App. Ct. 374, 379 (1986) (declining to address "combining separate periods of service to make up a full school year" as issue was not raised below). 

      The open question arises from the language of G. L. c. 149, § 105D.  According to that statute, protected leave "shall not affect" the employee's "seniority, length of service credit," or "any other advantages or rights of employment."  G. L. c. 149, § 105D (d).  Such leave, however, "shall not be included, when applicable, in the computation of the benefits, rights and advantages."  Id.  In other words, "[t]he time spent on [protected] leave may not be counted towards the amount of time required for tenure."  Solomon, 395 Mass. at 18.

      At issue here are the fifty-six days of protected leave that must be excluded from the PTS calculation.  The teacher contends that she ultimately achieved PTS by working fifty-six days into the fourth school year, at which point she had worked the "three consecutive school years" required by the statute and had not been notified by the prior June 15 that employment would not be offered.  G. L. c. 71, § 41.  Westwood contends that the additional fifty-six days worked in the fourth school year were insufficient to bridge the gap created by her protected leave, because Westwood required an evaluation of teacher performance based on a "complete" school year of at least 180 days, and the teacher had not worked for "three previous consecutive school years" as required by G. L. c. 71, § 41.  Because it disregards the teacher's actual "length of service credit" that must not be affected by protected leave, Westwood's formula for calculating PTS violates G. L. c. 149, § 105D.  Therefore, the judgments must be reversed, and the arbitrator's decision must be vacated. 

      Westwood's view is inconsistent with the plain language of G. L. c. 149, § 105D.  An employee taking protected leave "shall be restored to the employee's previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of the leave."  G. L. c. 149, § 105D (b).  Here, instead of restoring the teacher to her previous status, including length of service credit, Westwood disregarded the teacher's actual length of service by informing her during her third year that she "would need to work another year in non-PTS status before a decision would be made."  By requiring an additional school year and thereby deducting from the length of service credit all days worked during the year in which leave had been taken, Westwood penalized the teacher for taking protected leave.  The action taken by Westwood is inconsistent with the language of G. L. c. 149, § 105D, and cannot stand.

      Westwood's position is also inconsistent with the evident public policy reflected in G. L. c. 149, § 105D.  The statute, inserted by St. 1972, c. 790, § 1 ("An Act requiring employers to grant maternity leave to certain employees"), originally excused work absences by mothers during an eight-week period "for the purpose of giving birth."  Since then, the reach of the statute has been significantly expanded beyond protecting absences taken by birth mothers to also include absences taken for adoptions (St. 1984, c. 423), adoptions of persons with disabilities (St. 1989, c. 318), and parental leave (St. 2014, c. 484, § 1).  Failure to restore a person taking protected leave to a prior position may also constitute an "unlawful practice" under the Commonwealth's antidiscrimination law.  See St. 1972, c. 790, § 2 (amending G. L. c. 151B).  It is also an unlawful practice for an employer "to impose any other penalty as a result of a parental leave of absence."  G. L. c. 151B, § 4 (11A).  The obvious public policy, expressed in such various legislation over many years, is to protect significant interests of employees as well as their families.  Put simply, instead of having to rely on the mercy and goodwill of employers in various life circumstances involving parenting, employees "are afforded rights" under G. L. c. 149, § 105D, when they are absent from work.  Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 497 (2010).  One of the most consequential rights is that an employee's length of service is safeguarded when the employee takes leave under the statute.  Here, by requiring an extra year of teaching for taking fifty-six days of protected leave, Westwood violated a significant public policy by failing to safeguard the teacher's length of service credit.

      Subjecting other teachers similarly situated to the same fate does not aid Westwood's position.  According to the assistant superintendent, "requiring an extra year in non-professional teacher status was regular practice at the Westwood Public Schools for teachers whose employment had a significant interruption."  Although it may have been a "regular practice" to require an extra year, the teacher's excused absence here was not merely a "significant interruption" –- it was protected by law.  It is well settled that "excused" absences do "not weigh against the teacher's entitlement to tenure."  Fortunato v. King Philip Regional Sch. Dist. Comm., 10 Mass. App. Ct. 200, 206 (1980).  Beyond the plain language of G. L. c. 149, § 105D, "'acting to penalize the pregnant teacher for deciding to bear a child,' put[s] a heavy burden on the 'freedom of personal choice in matters of marriage and family life [that] is one of the liberties protected by the Due Process Clause.'"  Black v. School Comm. of Malden, 365 Mass. 197, 206 (1974), quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640 (1974).  Our law has evolved so that teachers do not have to choose between becoming parents or securing tenure. 

      Westwood's position is also inconsistent with PTS eligibility under G. L. c. 71, § 41.  The purpose of the statute "is to provide some degree of protection for the tenure of teachers who have served a probationary term of three consecutive school years and who are continued in employment thereafter."  Frye v. School Comm. Of Leicester, 300 Mass. 537, 538-539 (1938).  "The sole test mentioned in the statute is service 'for the three previous consecutive school years.'"  Id. at 540, quoting G. L. c. 71, § 41.  There is nothing in G. L. c. 71, § 41, that gives Westwood the authority to change the probationary period to four consecutive school years or any other period that suits its evaluation purposes.  Indeed, the "terms of this section are mandatory."  Nester v. School Comm. of Fall River, 318 Mass. 538, 541 (1945).  Once the conditions of the statute are satisfied, the teacher is "entitled" to PTS.  G. L. c. 71, § 41.  We also do not view the phrase "school years" in G. L. c. 71, § 41, as a prohibition against aggregating days in service.  Requiring a nontenured teacher to work an additional "complete school year" anytime he or she properly takes protected leave would cause the same "harsh result" that the Supreme Judicial Court sought to avoid in Solomon, 395 Mass. at 18-19.  We are bound to "construe G. L. c. 149, § 105D, and G. L. c. 71, § 41, in a manner that gives reasonable effect to both."  Solomon, supra at 18. 

      Here, the teacher satisfied the sole test for tenure under G. L. c. 71, § 41, and was entitled to PTS.  When she entered her fourth school year working for Westwood, the teacher was just fifty-six days short of the necessary three years of "regular and continuous employment."  Nester, 318 Mass. at 542.  After working fifty-six days in that fourth year, the teacher accumulated the necessary length of service credit of "three previous consecutive school years" to be "entitled" to PTS.  G. L. c. 71, § 41.  We must look to the "substance of the relationship between" the teacher and Westwood and "give to the [teacher] the benefit of tenure intended by the statute."  Ryan v. Superintendent of Sch. of Quincy, 363 Mass. 731, 740 (1973).

      Westwood protests that administrative difficulties would result from PTS based on anything but "full school year increments."  Westwood contends that without relying on full school year increments administrators would be required to "track the exact duration of each non-PTS educator's leave of absence" and would "have to make consequential personnel determinations in the middle of a school year."  While a teacher invoking protected leave may create challenges for school officials concerned with classroom continuity and timely evaluations, administrative convenience cannot trump the statutory right to take parental leave, nor is convenience a particularly compelling excuse for discriminating against persons taking maternity leave.  See, e.g., Black, 365 Mass. at 207 (administrative convenience derived from "rules that avoided case-by-case determination was not weighty enough to validate an otherwise prejudicial scheme").

      We disagree with Westwood's further contention that PTS based on partial school years would undermine "the purpose, structure, and effectiveness of the education evaluation system" that is premised on full school years.  Specifically, Westwood points to the "evaluation cycle" outlined in 603 Code Mass. Regs. § 35.06 (2017).  That regulation is not as rigid as Westwood represents.  To the contrary, the regulation describes general principles for an evaluation cycle of teachers and allows school committees to develop systems "consistent with" those principles.  603 Code Mass. Regs. § 35.06(1).  Indeed, Westwood acknowledges in its brief that it has developed its own evaluation cycle in accordance with those principles.  In any event, because "an administrative agency has no authority to promulgate rules or regulations that conflict with the statutes," Massachusetts Mun. Wholesale Elec. Co. v. Massachusetts Energy Facilities Siting Council, 411 Mass. 183, 194 (1991), the regulation at issue must take protected leave into account.  For the same reason, any evaluation system developed by Westwood must consider the possibility that teachers will be taking protected leave and must accommodate that leave in its evaluation process.

      Conclusion.  "This case presents one of those 'rare instances' in which an arbitrator's award must be vacated as contrary to 'an explicit, well-defined, and dominant public policy.'" Boston, 443 Mass. at 813–814, quoting Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 62-63 (2000).  We are not dealing with an arbitrator who has been asked "to interpret the meaning" of terms in a collective bargaining agreement.  Eastern Associated Coal Corp., supra at 61.  Notably, the arbitrator's decision "does not 'dra[w] its essence'" from the collective bargaining agreement that was neither referenced in any proceedings nor included in the record appendix.  W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 764 (1983), quoting United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).  Instead, we are dealing with an arbitrator who answered a narrow question of law that was expressly left unanswered in prior appellate decisions.  See Solomon, 395 Mass. at 19; Plymouth Pub. Sch., 89 Mass. App. Ct. at 650; Matthews, 22 Mass. App. Ct. at 379.  The answer provided by the arbitrator does not comport with statutes expressing strong public policies on teacher tenure and parental leave.

      We conclude that the teacher earned professional teacher status, and her discharge was improper under the standards set forth in G. L. c. 71, §§ 41 and 42, as well as the protected parental leave under G. L. c. 149, § 105D.  The judgment of the Superior Court confirming the arbitration award is reversed.  A new judgment shall enter vacating the arbitration award and remanding the matter to the arbitrator, who "may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof."  G. L. c. 71, § 42. 

So ordered.