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Board of Higher Education v. Commonwealth Employment Relations Board

Supreme Judicial Court of Massachusetts, Suffolk

October 7, 2019

BOARD OF HIGHER EDUCATION
v.
COMMONWEALTH EMPLOYMENT RELATIONS BOARD[1] & another. [2]

          Heard: February 7, 2019.

         Appeal from a decision of the Commonwealth Employment Relations Board.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          James B. Cox, Special Assistant Attorney General, for the employer.

          T. Jane Gabriel for Commonwealth Employment Relations Board.

          Laurie R. Houle for the intervener.

          Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.

          BUDD, J.

         We have long recognized the tension between the statutory right of public employees to bargain collectively the terms and conditions of their employment with public employers and the Legislature's intent to bestow upon those employers nondelegable managerial responsibilities. The relationship between the faculties and the boards of trustees at our State colleges[3] is no exception. See, e.g., Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers' Ass'n/Mass. Community College Council, 423 Mass. 23, 28 (1996) (Roxbury Community College) . Here, the Board of Higher Education (BHE) has appealed from a decision of the Commonwealth Employment Relations Board (board), upholding a provision in a collective bargaining agreement between the BHE and the Massachusetts State College Association[4] (union) that placed a cap on the percentage of courses taught by part-time faculty at the Commonwealth's State colleges. The BHE argues that, although it bargained for this provision, it is not enforceable because it impermissibly intrudes on the nondelegable managerial prerogatives of the State college boards of trustees and, as such, is not a proper subject of collective bargaining. We disagree and therefore affirm the board's decision.

         1. Background.

         a. Public sector collective bargaining.

         Enacted in 1973, G. L. c. 150E provides a comprehensive framework for the regulation of public sector collective bargaining. Labor Relations Comm'n v. Boston Teachers Union, Local 66, 374 Mass. 79, 93 (1977). See Greenbaum, The Scope of Mandatory Bargaining under Massachusetts Public Sector Labor Law, 72 Mass. L. Rev. 102, 102 (1987). The statute recognizes important collective bargaining rights for public employees and imposes significant obligations on public employers with respect to those rights. In particular, G. L. c. 150E, § 2, provides: "Employees shall have the right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing on questions of wages, hours, and other terms and conditions of employment, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion." Public employers are obligated to "negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment." G. L. c. 150E, § 6. The statute also sets forth practices in which public employers and employees may not engage.[5] See G. L. c. 150E, § 10.

         Finally, the statute provides for the resolution of disputes that may arise during the collective bargaining process, or after the agreement has been finalized, during the pendency of the agreement. Should the parties fail to come to terms as to any mandatory subject of bargaining, G. L. c. 150E, § 9, prescribes procedures to determine whether an impasse exists and how to resolve it. And G. L. c. 150E, § 11, sets forth a comprehensive process by which either side may bring a complaint regarding a practice prohibited by G. L. c. 150E, § 10.

         b. State college system.

         Each of the Commonwealth's State colleges[6] is governed by its own board of trustees which "appoint[s], transfer[s], dismiss[es], promote[s] and award[s] tenure to all personnel of [its respective] institution." G. L. c. 15A, § 22. The BHE, which is "responsible for defining the mission of and coordinating the [S]tate's system of higher education," "work[s] with [the State college] boards of trustees to identify and define institutional missions ... as well as to define each institution's role within the greater system." G. L. c. 15A, § 1. Although each board of trustees is responsible for appointing faculty at its respective college, it is the BHE that is the statutory employer of State college faculty members under G. L. c. 150E, and the party to the collective bargaining agreement.[7] Correspondingly, the union is the exclusive bargaining representative for certain faculty members employed by the BHE, as identified in the parties' collective bargaining agreement.

         Students at State colleges are taught by both full-time and part-time faculty. Full-time faculty members may be tenured, tenure-track, or temporary.[8] Full-time faculty members generally teach a full course load each semester[9] and receive an annual salary with benefits. Tenured and tenure-track faculty members also participate in governance at their respective colleges, including structuring academic programs, designing curricula, and serving on departmental committees. In addition, some full-time faculty serve as department chairs, who are responsible for supervising and evaluating other full-time and part-time faculty members in their respective departments.

         Part-time or adjunct faculty generally do not receive employee benefits.[10] Part-time faculty are also not eligible to become members of the bargaining unit until they complete three consecutive semesters, and they cannot be hired for more than four consecutive semesters. The colleges hire part-time faculty when the number of courses needed exceeds the ability of full- time faculty to deliver those courses, [11] or when teachers with specialization in a particular area are needed.[12] It costs the colleges less to hire a part-time adjunct than a full-time faculty member because part-time adjuncts are paid per course rather than per semester or on a yearly salary. Because the decision to grant tenure involves a major financial commitment on the part of the college, the fact that adjuncts are not eligible for tenure also makes them less expensive to hire.

         The decision to hire adjunct faculty is made by individual colleges each academic year based on the number of students enrolled in particular programs and related courses. The colleges balance the need to offer lower level core courses against the availability of full-time instructors to teach those courses. The colleges must also respond to changing conditions such as increases in student enrollment. For example, as the board found, enrollment numbers for first-year students at some State colleges in academic year 2007-2008 were higher than expected, and the colleges did not have enough full-time faculty members to teach all the core courses. The colleges addressed this by hiring additional part-time instructors to teach those courses.

         c. Article XX, § C(10) of the collective bargaining agreement.

         The BHE and the union were parties to a collective bargaining agreement for the period between July 1, 2004, and June 30, 2007 (agreement). Pursuant to a further memorandum of agreement dated August 27, 2007, the agreement was in effect in late 2007, when the dispute arose over the enforceability of a provision therein. That provision, Article XX, § C(10) (§ C[10]), provides:

"Part-Time Appointments: Limitations
"This subsection shall be of application only to departments with six (6) or more full-time members.
"Except at [Massachusetts College of Art and Design (Mass. Art)], not more than fifteen percent (15%) of an academic department's total number of three (3) credit courses and sections shall be taught by part-time employees during an academic year.
"At [Mass. Art], not more than twenty percent (20%) of the total number of three (3) credit courses taught in a department with six (6) or more full-time faculty shall be taught by ...

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