Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 2015–0187

Decision Date23 December 2015
Docket NumberNo. 2015–0187,2015–0187
Citation130 A.3d 1219,168 N.H. 450
Parties UNIVERSITY SYSTEM OF NEW HAMPSHIRE BOARD OF TRUSTEES & a. v. Marco DORFSMAN & a.
CourtNew Hampshire Supreme Court

168 N.H. 450
130 A.3d 1219

UNIVERSITY SYSTEM OF NEW HAMPSHIRE BOARD OF TRUSTEES & a.
v.
Marco DORFSMAN & a.

No. 2015–0187

Supreme Court of New Hampshire.

Argued: November 12, 2015
Opinion Issued: December 23, 2015


Sulloway & Hollis, P.L.L.C., of Concord (Edward M. Kaplan on the brief and orally), for the petitioners.

Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the brief and orally), for the respondents.

DALIANIS, C.J.

168 N.H. 452

The respondents, Marco Dorfsman and the University of New Hampshire Chapter of the American Association of University Professors (Union), appeal an order of the Superior Court (Tucker, J.) granting the petition for declaratory relief filed by the petitioners, the University System of New Hampshire Board of Trustees and the University of New Hampshire (collectively, UNH). The superior court vacated the arbitrator's decision that UNH had violated its collective bargaining agreement (CBA) with the Union by terminating Dorfsman's employment for engaging in an act of "moral turpitude." We affirm.

I. Procedural Background

The relevant facts follow. In 2012, Dorfsman was an Associate Professor and the Chair of the Language, Literature, and Culture Department at UNH. In December of that year, he intentionally lowered the evaluations that students had given a certain lecturer by erasing markings on the evaluations; if the highest ranking had been given, he entered a different and lower rating. In May 2013, UNH terminated Dorfsman's employment for this conduct, which UNH determined constituted an act of "moral turpitude" within the meaning of the CBA. Dorfsman and the Union grieved his termination, and, pursuant to the CBA, the parties submitted to binding arbitration to resolve that grievance.

Although the arbitrator agreed with UNH that Dorfsman's conduct constituted an act of "moral turpitude," he also determined that, because of

168 N.H. 453

several mitigating factors, Dorfsman's termination did not comport with principles of just cause. At the arbitration hearing, the arbitrator remanded the matter so that they could negotiate the proper level of discipline; should they fail to agree within 30 days, the arbitrator would determine Dorfsman's discipline.

UNH timely filed its complaint in superior court seeking a declaration that the arbitrator had exceeded his authority and requesting the court to vacate his decision. Following a hearing, the trial court concluded that: (1) it had jurisdiction to consider UNH's appeal of the arbitrator's award; (2) the issues raised in that appeal were ripe for adjudication; and (3) the arbitrator exceeded his authority under the CBA when he found that Dorfsman's termination was not supported by just cause. The respondents unsuccessfully moved for reconsideration, and this appeal followed.

On appeal, the respondents argue that the trial court lacked jurisdiction to review the arbitrator's decision, the issues are not ripe for judicial review, and the arbitrator did not exceed his authority when he found that UNH lacked just cause to terminate Dorfsman's employment. The respondents do not challenge the arbitrator's finding that Dorfsman's conduct constituted "moral turpitude" within the meaning of the CBA.

II. Analysis

A. Jurisdiction

We first address whether the superior court had jurisdiction to consider UNH's appeal of the arbitrator's decision. Whether the trial court had jurisdiction is a question of law subject to de novo review.

130 A.3d 1223

See In the Matter of Muller & Muller, 164 N.H. 512, 517, 62 A.3d 770 (2013). The respondents contend that the superior court lacked jurisdiction to review the arbitrator's award because: (1) RSA chapter 542 is the only means by which the court could have had such jurisdiction; (2) pursuant to RSA 542:1 (2007), the provisions of RSA chapter 542 do "not apply to any arbitration agreement between ... employers and associations of employees unless such agreement specifically provides that it shall be subject to the provisions" of RSA chapter 542; and (3) the CBA does not specifically provide that it is subject to the provisions of that chapter.

Article 9.5.5 of the CBA provides, in pertinent part:

The decision of the Arbitrator ... shall be final except that within thirty (30) calendar days after the issuance of a decision by the Arbitrator either party may appeal the decision to the Superior Court. The basis of the appeal shall be limited to plain mistake, whether legal or factual, fraud, corruption, or misconduct by the
168 N.H. 454
parties, or on the grounds that the Arbitrator exceeded his or her powers as specified in this Article.

Because they do not argue otherwise, the petitioners apparently agree that the language of Article 9.5.5 was insufficient to bring the CBA within the aegis of RSA chapter 542. See Southwestern Trans. Co. v. Durham, 102 N.H. 169, 173, 152 A.2d 596 (1959) (stating that "[t]he collective bargaining agreement in this case is subject to the provisions of RSA ch. 542 by its express terms"); cf. Appeal of Internat'l Assoc. of Firefighters, 123 N.H. 404, 409, 462 A.2d 98 (1983) (holding that arbitrator's decision was not subject to review by the New Hampshire Public Employee Labor Relations Board because the parties' agreement "made no reference to RSA chapter 542[,] ... did not provide for an appeal to the PELRB[,] [and] ... expressly stated that the arbitrator's decision was to be binding upon both the union and the city"). Accordingly, for the purposes of this appeal, we assume without deciding that RSA chapter 542 does not apply to this case.

The petitioners argue that, notwithstanding RSA chapter 542, the superior court had jurisdiction to review the arbitration award here. We agree.

"The superior court is a court of general jurisdiction and has authority to entertain actions in equity where there is no adequate remedy at law." Woodstock Soapstone Co. v. Carleton, 133 N.H. 809, 816, 585 A.2d 312 (1991) ; see RSA 498:1 (2010). We have previously recognized that the superior court has jurisdiction to review arbitral awards. See, e.g., Brampton Woolen Co. v. Local Union, 95 N.H. 255, 256, 61 A.2d 796 (1948) (concluding that court had jurisdiction to determine whether a dispute was arbitrable); Ford v. Burleigh, 60 N.H. 278 (1880) (reviewing whether arbitrators exceeded their authority).

To the extent that the legislature intended RSA chapter 542 to abrogate the common law right of superior court review of an arbitration award when, as in this case, the parties specifically bargained for that review, it had to state so expressly. "We will not construe a statute," here RSA chapter 542, "as abrogating the common law unless the statute clearly expresses such an intention." Case v. St. Mary's Bank, 164 N.H. 649, 655, 63 A.3d 1209 (2013) (quotations and brackets omitted). RSA chapter 542 does not clearly express such an intention. Indeed, RSA 542:1 exempts "any arbitration agreement between employers and employees, or between employers and associations of employees," unless that agreement "specifically provides

130 A.3d 1224

that it shall be subject to the provisions of [the] chapter," implying that far from intending to abrogate, the legislature intended to preserve the

168 N.H. 455

common law right of superior court review of arbitration decisions. Thus, we agree with UNH that the superior court had jurisdiction to review the arbitrator's decision.

The respondents argue that our decision "create[s] havoc in the public sector labor community by establishing the Superior Court as an appellate body for run of the mill employment related arbitration cases, even for labor agreements that do not invoke RSA 542." This argument is made to the wrong forum, as matters of public policy are reserved for the legislature. Petition of Kilton, 156 N.H. 632, 645, 939 A.2d 198 (2007). Moreover, given that the New Hampshire Public Employee Labor Relations Board "has no general authority to review an arbitration award, absent some indication that the parties intended to reserve a right to administrative review of the award," Bd. of Trustees v. Keene State Coll. Educ. Assoc., 126 N.H. 339, 342, 493 A.2d 1121 (1985), we fail to see how our decision "create[s] havoc in the public sector...

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