423 Mass. 23 | Mass. | 1996
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
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.
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 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.
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.
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 (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 (1977).” School Comm. of Holbrook v. Holbrook Educ. Ass’n. 395 Mass. 651, 654 (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,
What has been referred to as the doctrine of nondelegability rests largely on the notion that the quality of education provided to the Commonwealth’s school children will depend, to some significant degree, on school administrators’ relatively unfettered discretion to make decisions concerning staffing and personnel in light of shifts in curricular emphasis, fluctuating student enrollments, and the availability of resources. It has been observed that “[t]he success of a school system depends largely on the character and ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system.” Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940), citing G. L. c. 71, §§ 37 and 38. See Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Ass’n, supra at 526.
Our decisional law has acknowledged that tension exists between legislation authorizing collective bargaining agreements protecting the rights of public employees, see G. L. c. 150E, §§ 1, 2 (1994 ed.), and the recognition of an exclusive domain of authority for local school committees, protected by the nondelegability doctrine. See School Comm. of Danvers v. Tyman, supra at 111. Our view, however, has been that statu
General Laws c. 15A, § 22, which deals with the powers and duties of the boards of trustees of public institutions of higher education, provides, in pertinent part, as follows:
“Each board of trustees of a community college or state college shall be responsible for establishing those policies necessary for the administrative management of personnel, staff services and the general business of the institution under its authority. Without limitation upon the generality of the foregoing, each such board shall: . . . appoint, transfer, dismiss, promote and award tenure to all personnel of said institution . . . .”
The language of § 22 is more emphatic and detailed than were the cognate provisions of c. 71 in defining the duties and the scope of the authority assigned to the boards of trustees of the Commonwealth’s public colleges and universities. Various provisions of c. 15A acknowledge the importance of providing a high quality and affordable program of higher education, see G. L. c. 15A, § 1 (1994 ed.), a point which can hardly be doubted at a time when a college education is a necessary predicate for so many employment and other op
The union correctly points out that the enabling legislation of the Massachusetts Bay Transportation Authority explicitly reserves to it certain managerial rights, including the hiring and termination of employees, that may not be the subject of a collective bargaining agreement, see G. L. c. 161A, § 19 (1994 ed.), and suggests that we should decline to find nondelegable managerial authority where the relevant legislation does not explicitly provide for it. “The Legislature is free specifically to define or enumerate the proper subjects for public sector collective bargaining.” School Comm. of Boston v. Boston Teachers Union, Local 66, 378 Mass. 65, 71 n.12 (1979). The Legislature could have indicated its disagreement with this court’s long-standing inteipretation of former G. L. c. 71, §§ 37 and 38, at any time by doing away with the nondelegability doctrine by statute. It has not done so. The relevant language of G. L. c. 15A, § 22, closely resembles that
We consider it a difference without significance that, while a school committee acts as the bargaining agent and the entity holding nondelegable authority, in the case of higher education the council is the bargaining agent while the board of trustees has statutory authority for appointments, dismissals, and tenure decisions. See G. L. c. 150E, § 1 (1994 ed.); G. L. c. 15A, § 22.
We conclude that these considerations warrant application of the nondelegability doctrine to collective bargaining agreements between administrators and employees of public colleges and universities.
2. We turn to the question whether the arbitrator’s award infringed on the exclusive managerial prerogatives of the college’s administrators. This determination is made on a case-
We have not had occasion to consider whether an award which required a public school employer to create a vacancy that otherwise would not have existed is beyond the scope of an arbitrator’s power. However, we have said that a decision to abolish a particular position is a decision within the exclusive managerial prerogative of a school committee. See School Comm. of Braintree v. Raymond, 369 Mass. 686, 689-690 (1976); School Comm. of Hanover v. Curry, 369 Mass. 683 (1976). See also Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 211 (1982). In the circumstances of this case, the order to create a position was closely analogous to an order foreclosing school administrators from abolishing a faculty position. The arbitrator reasoned that the college was arbitrary and capricious in declining to create a position in part because a professor who taught full time in the college’s mathematics department recently had died. In effect, the decision not to create a full-time position in the mathematics department was a decision to abolish the full-time tenured position that had been held by the deceased professor. Under the Curry and Raymond cases, this decision was within the exclusive managerial prerogative of the college’s administrators. See School Comm. of Lynnfield v. Trachtman, 11 Mass. App. Ct. 524, 527-529, S.C., 384 Mass. 813 (1981). Moreover, it is obvious that considerations that would be termed matters of educational policy inevitably would enter into the decision to create a full-time faculty position. These considerations presumably would include, among others, possible fluctuations in enrollment in an academic department; current disciplinary needs and the need for future flexibility in course offerings; and, because the creation of a full-time tenured position has long-term budgetary implications, the most effective use of limited public funds. We need not consider whether the finding that the grievant was qualified for a position in the mathematics department exceeded the arbitrator’s powers (but see School
3. “A[n] award of damages ‘is separable’ from an arbitrator’s mistaken conclusion that a particular decision by [school administrators] is arbitrable.’ School Comm. of Boston v. [Boston Teachers Union, Local 66, 395 Mass. 232, 235 (1995)].” School Comm, of Holbrook v. Holbrook Educ. Ass’n, supra at 657. An arbitrator’s finding that an employer has violated a collective bargaining agreement may support an award of damages, even when other aspects of the award exceed the scope of arbitral authority. Id. Although, in ordering the grievant’s appointment to a position in the mathematics department, the arbitrator exceeded the scope of his arbitral powers, it was within his power to award damages for the college’s violation of the agreement, so long as the damages were in an amount that would not “have the effect of compelling reinstatement.” Id., quoting School Comm. of Lynnfield v. Trachtman, supra at 813. The arbitrator’s award provided, somewhat ambiguously, that the grievant was to be made “whole for lost benefits under the Contract, minus interim earnings, if any.” At the union’s request, the arbitrator agreed to retain jurisdiction over the matter for ninety days to calculate the amount of damages due to the grievant. In view of this language, we are unable to determine the measure of damages the arbitrator intended to award.
4. The judgment of the Superior Court confirming the arbitration award is to be modified to (1) grant in part the college’s motion to vacate the arbitrator’s award insofar as it ordered the grievant’s appointment to a full-time faculty position in the mathematics department; and (2) to remand the case to the arbitrator for a calculation of the amount of damages, if any, to be awarded to the grievant for the college’s violation of the agreement.
So ordered.
General Laws c. 150C, § 11 (a) (3) (1994 ed.), provides, in pertinent part, that an arbitrator’s award shall be vacated if “the arbitrators exceeded their powers.”
Section 19.01 (A) of the agreement provided that “[t]he Board may from time to time retrench one (1) or more members of the bargaining unit whenever in the exercise of its sole discretion it shall have determined that such retrenchment is required due to bona fide financial reasons or where there occurs within an institution a bona fide discontinuance, reduction or shift in academic emphasis or professional service needs or for other related bona fide programmatic reasons.” It is undisputed that termination of the program in which the grievant had been teaching was warranted and proper.
The arbitrator found that no vacancy to which the grievant might have been appointed existed in the science department.
Article IV of the agreement sets forth the rights and responsibilities which “shall remain vested” in management, including the right “[t]o hire all employees, to determine their qualifications and the conditions for their continued employment or their dismissal or demotion and to promote and transfer all such employees.” Section 4.01 (2).
The grievant had taught three sections of introductory algebra, and one basic mathematics course.
The Education Reform Act, St. 1993, c. 71 (Act), significantly revised the governance structure of public schools in the Commonwealth. Among other changes, the Act shifted primary responsibility for hiring, disciplining, and terminating teachers and administrative personnel from the local school committees to school principals, subject to the supervision and direction of the local school superintendents. See G. L. c. 71, § 59B (1994 ed.). Responsibility for hiring or terminating a school superintendent lies with the school committee, which retains the authority to “establish educational goals and policies for the schools in the district.” G. L. c. 71, § 37 (1994 ed.).
We are not persuaded by the union’s argument that the nondelegability doctrine rests solely on a perception that an elected body might be subject to undue influence by a union. An appointed official, who serves at the behest of an elected official, may be equally vulnerable to pressure that might “distort[ ] the normal political process for controlling public policy.” School Comm. of Boston v. Boston Teachers Union, Local 66, 378 Mass. 65, 71 (1979). As the union concedes, application of the nondelegability doctrine has not been confined to situations where the management is comprised of elected officials. The school committee of Boston, for example, is an appointed body. See St. 1991, c. 108. See also Boston v. Boston Police Patrolmen’s Ass’n, 8 Mass. App. Ct. 220, 226-227 (1979) (appointed police commissioner possesses nondelegable managerial authority). Cf. Secretary of Admin. v. Massachusetts Org. of State Eng’rs & Scientists, 408 Mass. 837, 839 (1990) (arbitrator concluded that appointed Secretary had exclusive nondelegable managerial authority to lay off public works personnel).
As was previously noted, see note 6, supra, the Act revised the governance structure of public elementary and secondary school, shifting primary responsibility for hiring and terminating personnel from the local school committees to superintendents and principals. The union has suggested that this alteration calls into question the continuing vitality of the long line of cases defining the scope of the nondelegability doctrine. While the issue is not squarely presented in this case, we note that, in the absence of an explicit legislative directive, we would be reluctant to conclude that passage of the Act indicated an intent to alter a well-established principle, presumptively known to the Legislature, governing collective bargaining between school administrators and employee representatives. See Waldman v. American Honda Motor Co., 413 Mass. 320, 323 (1992), and cases cited.