Massachusetts Community College Council v. Massachusetts Board of Higher Education
Massachusetts Community College Council v. Massachusetts Board of Higher Education
Opinion of the Court
The plaintiff, Massachusetts Community College
Background. On January 8, 2001, the college hired Virgilio Fernando Acevedo as an assistant professor, a tenure-track position, in the social science department. The terms of his employment were governed by the agreement, which covered full-time and part-time faculty and professional staff.
In 2004, the college promoted Acevedo from assistant professor to associate professor. Acevedo’s dean gave him an unsatisfactory evaluation for the fall 2005 semester that the college later rescinded and removed from his official personnel file in March, 2007. On October 6, 2006, as provided for in the agreement, the vice-president of academic affairs notified Acevedo of his eligibility for tenure consideration by the college’s unit
Acevedo grieved the decision to deny him tenure, alleging the college acted arbitrarily and capriciously in reaching its decision to deny tenure and issuing a one-year terminal contract. The grievance was not resolved in either of the first two steps of the agreement’s grievance procedure, and the union thereafter filed a demand for arbitration with the American Arbitration Association on behalf of Acevedo. A mutually agreed upon arbitrator held hearings on three days in the spring of 2009.
The arbitrator considered two questions that the parties had agreed upon:
“1. Did the [college] violate the Collective Bargaining Agreement by the manner in which the Grievant, Professor Virgilio Fernando Acevedo, was reviewed and considered for tenure, denied tenure, and/or given a terminal contract, which ended his employment effective May 31, 2008?
“2. If so, what shall be the remedy?”
On July 30, 2009, the arbitrator issued her award. She concluded “the tenure process that led to [Acevedo’s] receiving a terminal contract was seriously flawed,” and mled that the college’s actions leading up to the denial of tenure and the issuance of a terminal contract violated the bargained-for terms of the agreement. As a remedy, the arbitrator ordered the college im
On November 10, 2009, the union filed a complaint in the Superior Court to confirm the arbitration award pursuant to G. L. c. 150C, § 10. The college filed a motion to dismiss the action, claiming that the court lacked subject matter jurisdiction because the arbitrator’s award was a nonbinding award concerning the denial of tenure. A Superior Court judge denied the motion without prejudice. Thereafter, the college filed a motion for judgment on the pleadings. After a hearing, a different Superior Court judge (motion judge) denied the college’s motion and allowed the union’s motion to confirm the arbitration award.
Discussion. 1. Arbitration of tenure review disputes under the agreement. To frame our discussion we summarize the relevant provisions of the agreement, which are contained in arts. X, XI, and Xni.
Article X, entitled “Grievance Procedure,” establishes a three-step grievance procedure for resolution of disputes under the agreement. Arbitration, which is step three, is the subject of art. 10.06. It provides, in art. 10.06(A)(1), that “[t]he decision or award of the arbitrator shall be final and binding for the [union], the employee and the [college] in accordance with applicable provisions of state law.” Article 10.06(C), concerning the arbitrator’s authority, provides in part: “Unless otherwise provided in this Agreement, the arbitrator shall have the authority to make a final and binding award on any dispute concerning the interpretation or application of this Agreement.” As indicated at the outset, art. 10.06(F) provides: “The granting or failure to grant tenure shall be arbitrable but any award is not binding.” It is followed by art. 10.06(G), providing that “in making a decision, the arbitrator shall apply the express provisions of this Agreement and shall not alter, amend, extend or revise any term or condition hereof.”
The final relevant article is art. XIII, entitled “Evaluation.” It first describes in art. 13.01 the objectives of evaluations, which include providing “a basis upon which decisions shall be made concerning the reappointment, promotion . . . tenure . . . and termination, dismissal and discipline of a unit member.” Article 13.02 then sets out a series of specific criteria to govern faculty evaluations, which are to “be uniformly applied.”
The college argues that under the plain terms of the agreement, the arbitrator’s award in this case was nonbinding because art. 10.06(F) renders an award concerning the “failure to grant tenure ... [to be] not binding.” The Appeals Court agreed. Massachusetts Community College Council, 81 Mass. App. Ct. at 561-563. We approach the issue from a slightly different perspective. Under the agreement, it is up to the arbitrator to interpret its terms.
In this case, there is no question that in art. 10.06(F), the college agreed to nonbinding arbitration of disputes about tenure decisions. Rather, the core question raised is whether the college agreed to binding arbitration of any aspects of such tenure decisions, and more specifically, whether the dispute presented here for arbitration • — ■ did the college violate the agreement “by the manner in which [Acevedo] was reviewed and considered for tenure, denied tenure, and/or given a terminal contract[?]” — was one that the college (as well as the union) had agreed would be subject to binding and final resolution by an arbitrator.
Based on the terms of the agreement and art. X in particular, we answer the question “no.” The dispute before the arbitrator was an express concern about the college’s “failure to grant tenure” to Acevedo.
The union challenges this view, arguing, as the motion judge concluded, that the arbitrator’s award was binding on the parties because it did not tread on the substantive — and concededly out-of-bounds — issue whether Acevedo should be granted or denied tenure, but only concerned the procedures employed by the college in reviewing Acevedo’s tenure application. As the union and the motion judge point out, our cases have established the principle that, while the decision whether a particular teacher is entitled to tenure at a public educational institution is a nondelegable responsibility of those ultimately responsible for the management of the institution — whether a school committee or the trustees of a public college — the institution’s managers may still bind themselves to follow a set of defined procedures in making tenure or other types of nondelegable decisions, and those procedures “may be the basis for an arbitrable grievance.” Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers Ass’h/Mass. Community College Council, 423 Mass. 23, 27-28 (1996). See Massachusetts Bd. of Higher Educ./Holyoke Community College v. Massachusetts Teachers Ass’n/Mass. Community College/National Educ. Ass’n, 79 Mass. App. Ct. 27, 32-34 (2011). See also, e.g., School Comm, of Holbrook v. Holbrook Educ. Ass’n, 395 Mass. 651, 655 (1985); School Comm, of W. Bridgewater v. West Bridge-water Teachers’ Ass’n, 372 Mass. 121, 124-125 (1977); School Comm, of Danvers v. Tyman, 372 Mass. 106, 113-114 (1977). But this general principle has no bearing on this case; the agreement’s terms render it inapplicable. The agreement certainly prescribes a set of procedures to govern tenure review in art. 11.03 and, to a lesser extent, art. XIII. But in art. 10.06(F), the agreement expressly and specifically circumscribes the scope of arbitration that is permitted for disputes about tenure review: “[t]he granting or failure to grant tenure shall be arbitrable but any award is not binding.” A reading of art. 10.06(F) as incorporating a distinction between substance and procedure —
In sum, the terms of the agreement persuade us that the college and the union did not agree to binding arbitration of any aspect of a tenure denial determination, and therefore did not agree to binding arbitration of the Acevedo grievance.
2. Judicial review of the award under G. L. c. 150C. The union takes the position that we should not consider any aspect
We disagree. Collective bargaining agreements for public employees, including the agreement here, are authorized and governed by G. L. c. 150E. Pursuant to G. L. c. 150E, § 8, public employers and employees are authorized to include in a collective bargaining agreement a grievance procedure “culminating in final and binding arbitration to be invoked in the event of any dispute concerning the interpretation or application of [the collective bargaining] agreement.” This same section further provides that “binding arbitration hereunder shall be enforceable under the provisions of [G. L. c. 150C].” Reading G. L. c. 150E, § 8, and G. L. c. 150C, §§ 10 and 11, together, we understand the provisions of §§ 10 and 11 to become relevant and available to a public employer or union only with respect to a binding arbitration award. Indeed, the plain import of the words used in §§ 10 and 11 leads to the same conclusion: it makes no sense for the Superior Court to be asked to “confirm an award” (G. L. c. 150C, § 10) or, alternatively, to “vacate an award” (G. L. c. 150C, § 11) that the parties have agreed is not binding on them. See Perry v. Commonwealth, 438 Mass. 282, 285 (2002) (reading statutory language in “commonsense manner”); Acme Laundry Co. v. Secretary of Envtl. Affairs, 410 Mass. 760, 777 (1991) (same); Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 191-192 (2005) (same). Accordingly, we agree with the Appeals Court that because the arbitrator’s award was a nonbinding one, the college was not obligated to apply under G. L. c. 150C, § 11, to
Conclusion. We reverse the judgment of the Superior Court confirming the arbitration award, and remand the case to the Superior Court for entry of a judgment of dismissal.
So ordered.
The agreement relevant to this case was in effect from June 1, 2006, to June 30, 2009.
The majority of the unit personnel practices committee (tenure review committee) voted to recommend denying tenure to Acevedo on two separate occasions, voting before the college rescinded the dean’s fall 2005 unsatisfactory performance evaluation on March 5, 2007, and then again after that evaluation had been removed from Acevedo’s personnel file.
See art. 10.06(C) of the agreement, quoted in the text, supra.
In each of the cases cited in the text, supra, the court discussed whether the parties had agreed to arbitrate a particular dispute without making any express distinction between binding and nonbinding arbitration. However, it is clear that the arbitration procedure involved in each case was a binding one. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 841 (2007); Local 1710, Int’l Ass’n of Fire Fighters AFL-CIO v. Chicopee, 430 Mass. 417, 418-419 (1999) (Local 1710)-, Falmouth Police Superior Officers Ass’n v. Falmouth, 80 Mass. App. Ct. 833, 836-837 (2011) {Falmouth). That binding arbitration was the issue makes sense, of course, given that one of the most significant hallmarks of binding arbitration is the exceptionally limited nature of judicial review available. See Falmouth, 80 Mass. App. Ct. at 836-837, and cases cited. See School Comm, of Boston v. Boston Teachers Union, Local 66, AFL-CIO, 378 Mass. 65, 69 (1979). Accordingly, the question whether a party has agreed to binding arbitration of a particular dispute is critical.
Acevedo’s grievance stated that “[t]he college acted arbitrarily by denying me tenure and issuing a one year terminal contract” (emphasis added). In substance, that was the issue presented for arbitration, and that is what the arbitrator decided: “[t]he [college] violated the [agreement] by the manner in
The union argues for an even more refined construction, asserting that art. 10.06(F) is designed to allow “a grievant to submit to nonbinding arbitration the question of whether the [cjollege should have granted tenure (or possibly denied tenure to another) based on a comparison between the grievant’s personnel record and the records of faculty who were granted tenure.” As the Appeals Court noted, see Massachusetts Community College Council v. Massachusetts Bd. of Higher Educ., 81 Mass. App. Ct. 554, 562 n.17 (2012), the union offers no record or other support for this interpretation, and we have found none.
We note that the arbitrator did not differentiate between the procedure and substance associated with the tenure review process in her award.
Our conclusion is not inconsistent with the arbitrator’s award. Although the college indicated at the start of the arbitration its position that any award in this case would not be binding, the college was willing to proceed with the arbitration, as indeed it was obligated to do under art. 10.06(F). Whether the result of such an arbitration is to be binding or nonbinding is a separate question, one that an arbitrator need not necessarily address and, in this case, did not: the arbitrator’s award nowhere references art. 10.06(F) or the issue of binding versus nonbinding awards.
Because we decide that the arbitrator’s award was nonbinding, we need not reach the college’s argument that the award intruded on the nondelegable authority and responsibility that the college’s administrators and trustees hold with respect to tenure decisions. See G. L. c. 15 A, § 22 (c). See also Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers Ass’n/Mass. Community College Council, 423 Mass. 23, 29-30 (1996); Massachusetts Bd. of Higher Educ./Holyoke Community College v. Massachusetts Teachers Ass’n/Mass. Community Coliege/National Educ. Ass’n, 79 Mass. App. Ct. 27, 32-34 (2011).
General Laws c. 150C, § 11 (£>), provides in relevant part: “An application [to vacate an arbitration award] under this section shall be made within thirty days after delivery of a copy of the award to the applicant. . . .”
Section 10 of G. L. c. 150C provides: “Upon application of a party, the superior court shall confirm an award, unless within the time limits, hereinafter imposed grounds are urged for vacating, modifying or correcting the award, in which case the court shall proceed as provided in [G. L. c. 150C, §§ 11 and 12].”
General Laws c. 150C, § 13, provides in part: “Upon the granting of an order confirming, modifying or correcting an award, judgment or decree shall be entered in conformity therewith and shall be enforced as any other judgment or decree.”
Reference
- Full Case Name
- Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College
- Cited By
- 4 cases
- Status
- Published