Mass. Bd. of Higher Educ./Holyoke Cmty. Coll. v. Mass. Teachers Ass'n/Mass. Cmty. Coll. Council/Nat'l Educ. Ass'n.

• Decision Date: 11 March 2011
• Docket Number: No. 10–P–504.,10–P–504.
• Citation: 79 Mass.App.Ct. 27,265 Ed. Law Rep. 416,943 N.E.2d 485,190 L.R.R.M. (BNA) 2675
• Parties: MASSACHUSETTS BOARD OF HIGHER EDUCATION/HOLYOKE COMMUNITY COLLEGEv.MASSACHUSETTS TEACHERS ASSOCIATION/MASSACHUSETTS COMMUNITY COLLEGE COUNCIL/NATIONAL EDUCATION ASSOCIATION.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 27

943 N.E.2d 485

190 L.R.R.M. (BNA) 2675

265 Ed. Law Rep. 416

MASSACHUSETTS BOARD OF HIGHER EDUCATION/HOLYOKE COMMUNITY COLLEGE

v.MASSACHUSETTS TEACHERS ASSOCIATION/MASSACHUSETTS COMMUNITY COLLEGE COUNCIL/NATIONAL EDUCATION ASSOCIATION.

No. 10–P–504.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 3, 2010.Decided March 11, 2011.

Will Evans for the defendant.Carol Wolff Fallon, Boston, for the plaintiff.Present: McHUGH, MEADE, & MILKEY, JJ.MILKEY, J.

In 2006, Holyoke Community College (the college) posted a position for an assistant professor of nutrition. Elizabeth Hebert, who many years earlier had been a tenured faculty member at the college, received an initial interview for the position. However, she did not advance to the final round, and the college eventually hired one of the three candidates who did. Based on a grievance that Hebert's union, Massachusetts Teachers Association/Massachusetts Community College Council/National Education Association (union), pressed on her behalf, an arbitrator ruled that the college violated its collective bargaining agreement by choosing its preferred candidate over Hebert. He ordered the college to appoint Hebert to the posted position with full back pay, or to pay broadscale damages on an ongoing basis. A Superior Court judge vacated the arbitrator's award, and the union seeks to have it reinstated on appeal. We agree with the judge that the arbitrator exceeded his authority in some respects, but we conclude that the case must be remanded for additional proceedings.

Background.¹ Hebert has a “master's degree in food and nutrition.” ² In 1981, she began working as a “program coordinator” in the dietetic technology program at the college. She was promoted to assistant professor in 1986, and she obtained tenure in 1988. In May of 1989, the college eliminated the entire dietetic technology program because of severe budgetary issues, and Hebert therefore lost her position. The college offered her a “retraining sabbatical” designed to qualify her for a position in the biology department. She initially accepted that offer but eventually decided that she did not want to leave the nutrition field. Therefore, she resigned her position at the college.³ However, at many points over the ensuing years she taught courses at the college as an adjunct professor.

On January 6, 2006, the college posted the assistant professor position in nutrition. The posting listed various “required” and “preferred” qualifications. Among the required qualifications was that the candidate have a “[m]aster's degree in Nutrition or closely related field.”

Hebert applied for the posted position, and she was among the five candidates asked to make presentations to the search committee. The committee recommended three finalists, including Hebert. In the committee's report, the chair had particularly positive things to say about Hebert's candidacy, referring to her as “exceed[ing] all candidates [in the pool] in required and preferred job qualifications.” However, the college decided not to hire from the existing pool. Instead, it reposted the position on December 21, 2006. Although the new posting was slightly modified, it continued to list having a master's degree as a “required” qualification. The membership of the search committee had changed in the intervening months; for example, the chair, who had been a booster of Hebert's in the earlier process, no longer was on the search committee.

Hebert reapplied, and, as before, made the search committee's initial cut and was brought in for an interview. The reconstituted search committee asked each candidate a set series of questions, which was a different format than had been used in the earlier search. Hebert found the process “very strange,” and she acknowledged to the arbitrator that it “threw her a bit.” She did not advance further in the process.

The search committee chose three finalists, including Clement Ameho, who held a Ph.D. in nutrition from Tufts University; Laura Hutchinson, a Ph.D. candidate at the University of Massachusetts who had completed her course work and comprehensive examinations, but had not yet finished her doctoral dissertation; and Kim Teupker, who held a master's degree in nutrition and who—in the arbitrator's words—had “professional and teaching experience similar to Hebert's.” The college eventually hired Hutchinson for the position.⁴

On May 18, 2007, the day that Hebert learned that she was not a finalist, she filed a grievance claiming that the college had violated the collective bargaining agreement then in effect by having “acted in an arbitrary, capricious, and unreasonable manner in failing to offer her a second interview.” After the college denied the grievance on multiple grounds and mediation proved unsuccessful, the union requested that the dispute be arbitrated.

The assigned arbitrator held a hearing on November 20, 2008, and he ruled in Hebert's favor by a decision dated March 2, 2009. With the college having completed its hiring process after Hebert had filed her grievance, the arbitrator framed the issues before him as follows:

“Is the grievance of Elizabeth Hebert arbitrable?

“If so, did the College violate the parties' collective bargaining agreement by failing to appoint the grievant to a full-time faculty position in the Nutrition Department?

“If so, what shall be the remedy?”

The arbitrator determined that the grievance was arbitrable, because, having lost her teaching position two decades earlier, Hebert was a “retrenched” union member who enjoyed certain preferences under the collective bargaining agreement.⁵ He concluded that Hebert no longer was entitled to some of these preferences, either because of the sheer passage of time or because she had not followed required notification procedures in the interim.⁶

However, the arbitrator found that Hebert still was entitled to a preference with regard to article XVI of the collective bargaining agreement, the general provision governing the “filling of vacancies.” Section 16.02 of the collective bargaining agreement requires the college president or designee to fill any vacancies with unit members within the college “when in the professional judgment of the President of the College or designee such unit members are the best-qualified applicants.” It further states that retrenched unit members must be given first preference “[i]f the President of the College or designee determines that two (2) or more applicants are equally best qualified.”

After reviewing their respective qualifications, the arbitrator found Hebert better qualified than Hutchinson, and “[a]t the very least, Hebert should have been found [by the college] to be equally qualified as Hutchinson.” Indeed, he determined that Hutchinson was per se unqualified given that, although she had completed her doctoral course work and examinations, she did not possess a master's degree. Based on this, the arbitrator concluded that, in choosing Hutchinson over Hebert, the college failed to give Hebert preference as a “retrenched faculty member” and thereby violated the collective bargaining agreement.

As to remedy, the arbitrator ordered the college to hire Hebert for the posted position (plus back pay). Recognizing doubt as to whether he could order the college to hire Hebert, the arbitrator further ordered that, in the event that his preferred remedy was struck, the college must pay Hebert the full salary of the position for as long as that job continued to exist. A Superior Court judge summarily vacated this award, stating: “Hebert is not entitled to reinstatement and not entitled to retrenchment. Where it is clear that the arbitrator exceeded his authority, and [his award] is against public policy, his decision must be VACATED.”

Discussion. Scope of review and the principle of nondelegation. Judicial review of arbitration awards is extremely limited. We must accept an arbitrator's factual findings and legal conclusions regardless of their validity. Plymouth–Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007, 553 N.E.2d 1284 (1990) (“Absent fraud, errors of law or fact are not sufficient grounds for setting aside an award”). “However, the question whether an arbitrator exceeded his or her authority is always subject to judicial review.” Board of Higher Educ. v. Massachusetts Teachers Assn., NEA, 62 Mass.App.Ct. 42, 47, 814 N.E.2d 1113 (2004), citing School Comm. of W. Springfield v. Korbut, 373 Mass. 788, 792, 369 N.E.2d 1148 (1977). See G.L. c. 150C, § 11( a )(3), inserted by St.1959, c. 546, § 1 (requiring judge to vacate arbitrators' awards if “the arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law”).

An arbitrator exceeds his authority when he intrudes upon decisions that cannot be delegated, but that are instead left by statute to the exclusive managerial control of designated public officials. Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers' Assn./Mass. Community College Council, 423 Mass. 23, 27–31, 666 N.E.2d 479 (1996) (hereinafter Roxbury Community College ). “This gloss on public sector collective bargaining statutes is deemed necessary in order that the collective actions of public employees do not distort the normal political process for controlling public policy.” Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 211, 434 N.E.2d 1258 (1982). However, the principle of nondelegability is to be applied only so far as is necessary to preserve the college's discretion to carry out its statutory mandates. Thus, although the principle applies to the administration of community colleges, “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.” Roxbury Community...