Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers' Association/Massachusetts Community College Council

• Decision Date: 20 June 1996
• Citation: 666 N.E.2d 479,423 Mass. 23
• Parties: , 110 Ed. Law Rep. 777 HIGHER EDUCATION COORDINATING COUNCIL/ROXBURY COMMUNITY COLLEGE v. MASSACHUSETTS TEACHERS' ASSOCIATION/MASSACHUSETTS COMMUNITY COLLEGE COUNCIL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 479

666 N.E.2d 479

423 Mass. 23, 110 Ed. Law Rep. 777

HIGHER EDUCATION COORDINATING COUNCIL/ROXBURY COMMUNITY COLLEGE v. MASSACHUSETTS TEACHERS' ASSOCIATION/MASSACHUSETTS COMMUNITY COLLEGE COUNCIL.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 2, 1996.

Decided June 20, 1996.

Eileen A. Cenci, Boston, for defendant.

Cynthia S. Denehy, Bedford, for plaintiff.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

We transferred this case to this court on our own motion to decide a question concerning the authority of the Higher Education Coordinating Council (council) and the boards of trustees of the various public institutions of higher education in the Commonwealth. We inquire whether the council and the boards of trustees may agree to submit to binding arbitration the decision to create a vacancy in an academic department at one of these institutions, and the authority to determine the qualifications, and order the appointment, of a person to that vacancy as a tenured faculty member or whether this question is one within the exclusive managerial prerogative of the council and the boards of trustees, that may not be delegated for decision by arbitration. A judge in the Superior Court denied the motion of the plaintiff, the Higher Education Coordinating Council/Roxbury Community College (college), pursuant to G.L. c. 150C, § 11(a )(3) (1994 ed.), ¹ to vacate an arbitration award directing the college to create, and assign to the grievant, a full-time position in the college's mathematics department. The plaintiff timely appealed. We vacate so much of the judgment as required appointment of the grievant to a faculty position at the college and remand the case to the Superior Court with instructions that it be remanded to the arbitrator for calculation of an award of damages, if any.

We summarize, with minor additions, the facts as taken from the arbitrator's opinion. Effective August 31, 1992, the electronics technology program (program) at the college was eliminated due to a "dramatic decrease" in student enrollment. The grievant, the sole remaining faculty member in the program, and a full professor who had been a member of the college faculty for fourteen years, faced the loss of his position through retrenchment. ² The grievant had been hired in November, 1978, and had received tenure in 1986. He had been awarded a bachelor of science degree in civil engineering from Duke University, and a master of science degree in civil engineering from the University of North Carolina. As an undergraduate, he had taken six courses in mathematics; as a graduate student, he had taken one additional course in that subject. He had taught four introductory mathematics courses and a general science course during his appointment at the college. In the fall of 1992, around the time the grievant's retrenchment took effect, there were thirteen sections of introductory mathematics and three sections of science being taught by part-time instructors. A full-time, tenured professor of mathematics had died in April, 1992, and had not been replaced. The course load of a full-time faculty member was approximately four courses. The grievant requested that the employer transfer him to a full-time teaching position in either the mathematics or the science department. The request was denied, and the grievant was retrenched. He then filed the grievance which is the subject of this decision.

The board of regents, predecessor to the council, compare G.L. c. 15A (1990 ed.) with G.L. c. 15A, as appearing in St.1991, c. 142, § 7, acting on behalf of the Massachusetts regional community colleges, entered into a collective bargaining agreement (agreement) effective July 1, 1990, through June 30, 1993, with the Massachusetts Community College Council/Massachusetts Teachers Association (union). The agreement defined the responsibilities of a community college in the event of the possible retrenchment of a member of the bargaining unit. Section 19.03 provided as follows:

"Whenever it shall have been determined to be necessary to retrench any unit member, the College shall reassign an affected unit member to a position within another ... department/work area ... within the College at which the retrenchment occurs; provided, however, that such reassignment shall only be made to a then existing vacancy in such department/work area.... No such reassignments shall be made unless such unit member is qualified for such reassignment as determined by the president of the College or his/her designee. A unit member shall be deemed to be qualified by the president of the College or his/her designee if he/she has taught at least eight (8) sections at the College in the work area to which the reassignment is to occur...."

The agreement defined "vacancy," in § 1.02, as "a position for which funding is available and which the administration intends to fill." Section 19.04(A) of the agreement provided that "[t]he president of the College shall make reasonable efforts to effect the required retrenchment by exhausting attrition and reassignment."

The arbitrator concluded that the college had violated the agreement by not assigning the grievant to a full-time faculty position in the mathematics department. He noted that management normally has the right to determine whether a vacancy exists and whether to fill it. He nonetheless concluded that this right was limited by the college's obligation of reassignment in the event of retrenchment, and concluded that management's authority to determine when a vacancy existed and whether to fill it was not absolute. In the circumstances, the arbitrator concluded that it was arbitrary and capricious on the part of the college not to combine some courses being taught by part-time faculty members into a full-time position for which the grievant could be considered, and to which he would be entitled under the agreement if he were found to be qualified. ³

Having concluded that a vacancy existed in the mathematics department, the arbitrator also found that the grievant was qualified to fill it despite his lack of any degree in mathematics. ⁴ This finding was based on the "large mathematical component" in the grievant's undergraduate and graduate curriculum, a presumption that, as a practicing engineer, the grievant must have used mathematical skills, and the fact that the college had assigned him to teach introductory mathematics courses on four occasions in the past. ⁵ The arbitrator also noted that the decision not to assign the grievant to the science or the mathematics department was made by the divisional and department heads, although the president of the college had wanted to accommodate the grievant. Among the duties of a department chair, set out in the agreement, is the responsibility to "[a]dvise on the discipline competency of all applicants for vacancies within the department after consultation with members of the department." Section 20.5(C). The arbitrator's decision refers to testimony from the division chair that the mathematics department "needed someone with experience and knowledge in developmental education." According to the college, there was also uncontested testimony that a full-time faculty member in the mathematics department would be required to have a degree in that discipline and would be expected to be capable of teaching the full range of courses offered by the department. The arbitrator, however, determined that the department had resisted the appointment of the grievant due to concerns about the seniority in the department the grievant would acquire based on his years of service to the college. The arbitrator concluded that the college also had been arbitrary and capricious in taking the position that the grievant was not qualified for a full-time tenured appointment in the college's mathematics department.

1. This court has consistently acknowledged that "[o]ur review of an arbitrator's award is limited in scope. 'We do not, and cannot, pass on an arbitrator's alleged errors of law and, absent fraud, we have no business overruling an arbitrator because we give a contract a different interpretation.' Concerned Minority Educators v. School Comm. of Worcester, 392 Mass. 184, 187, 466 N.E.2d 114 (1984).... However, 'the question whether the arbitrator[ ] acted in excess of the authority conferred on [him], as claimed in the present case, is always open for judicial review.' School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 792, 369 N.E.2d 1148 (1977)." School Comm. of Holbrook v. Holbrook Educ. Ass'n, 395 Mass. 651, 654, 481 N.E.2d 484 (1985). Thus, unless the arbitrator's decision infringed on an area of educational policy reserved for the exclusive judgment of the administrators of the college, it cannot be disturbed.

Relying on a body of law that has been developed and applied in the context of public elementary and secondary schools, the college argues that the decisions whether to create a new position and what qualifications to require in connection with that position are matters within the exclusive management prerogative of the college and, therefore, beyond the scope of collective bargaining. As the college suggests, "this court has held that specific appointment determinations, and decisions to abolish positions are within the exclusive managerial prerogative of a school committee." Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 211, 434 N.E.2d 1258 (1982). Similarly, a school committee has exclusive authority to "determine on an annual basis the size of its teaching staff." Id. at 212, 434 N.E.2d 1258. The authority to specify the qualifications necessary for a faculty or administrative appointment and to hire personnel possessing those specified qualifications also has been considered to be the exclusive prerogative of a school committee. See School Comm. of Holbrook v. Holbrook Educ....