Board of Higher Education v. Commonwealth Employment Relations Board ( 2019 )

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SJC-12621
BOARD OF HIGHER EDUCATION vs. COMMONWEALTH EMPLOYMENT
RELATIONS BOARD1 & another.2
Suffolk. February 7, 2019. - October 7, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
Commonwealth Employment Relations Board. Education, Public
colleges and universities. Public Employment, Collective
bargaining. Labor, Public Employment, Collective
bargaining.
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.
1 The Commonwealth Employment Relations Board (board) is the
successor to the Labor Relations Commission. See St. 2007,
c. 145, §§ 5, 7, and 8.
2 Massachusetts State College Association, intervener.
2
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
colleges3 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 Association4 (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
3 By St. 2010, c. 189, § 12, the Legislature conferred
university status on the State colleges, and some of the
colleges changed their names accordingly. However, as the
parties refer to the institutions as colleges, we do likewise.
4 The Massachusetts State College Association is affiliated
with the Massachusetts Teachers Association and the National
Education Association.
3
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
4
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
colleges6 is governed by its own board of trustees which
"appoint[s], transfer[s], dismiss[es], promote[s] and award[s]
5 Prohibited practices by employers under G. L. c. 150E, §
10, include, inter alia, the refusal of the employer to bargain
in good faith with the exclusive representative of the employee
organization over mandatory subjects of bargaining, G. L. c.
150E, § 10 (a) (5); interference with any employee's exercise of
his or her collective bargaining rights, G. L. c. 150E, § 10 (a)
(1); and discrimination against an employee due to union
membership, G. L. c. 150E, § 10 (a) (3).
6 The Commonwealth's State colleges are Bridgewater State
College, Fitchburg State College, Framingham State College, the
Massachusetts College of Art and Design (Mass. Art), the
Massachusetts Maritime Academy, the Massachusetts College of
Liberal Arts, Salem State College, Westfield State College, and
Worcester State College. See note 3, supra.
5
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
7 The parties' collective bargaining agreement provides that
"[a]ctions to be taken by any [board of trustees] . . . are
rights and obligations created or imposed by the terms of this
[a]greement and as such are binding upon the [Board of Higher
Education (BHE)] as the employer under G. L. c.] 150E."
8 Full-time temporary faculty members teach from one to four
consecutive semesters, advise students who are assigned to them,
and have the same workload as tenured or tenure-track faculty
members.
6
teach a full course load each semester9 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-
9 By the terms of the agreement, a full-time faculty member
may fulfill his or her professional responsibilities by
alternative means or may have his or her workload reduced in
some circumstances. Full-time faculty who have served at the
State colleges for a sufficient length of time may also take
sabbatical leave.
10Mass. Art alone employs some faculty members on a
"benefited" part-time basis. Unlike regular part-time
positions, benefited part-time faculty possess the same rights,
benefits, and responsibilities as full-time faculty members.
Moreover, benefited part-time faculty at Mass. Art are included
in the bargaining unit defined in the parties' agreement. For
ease of reference, we include these benefited part-time faculty
members in the term "full-time faculty."
7
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
11The State colleges require all students to enroll in
designated core curriculum courses as a prerequisite to earning
their degrees. The preference is to have part-time faculty
teach the core curriculum courses.
12The BHE states that State colleges employ part-time
faculty to teach subjects such as art, music, theater, and
certain foreign languages and to bring practical expertise in
particular disciplines into the classroom.
8
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 part-time employees during an academic year.
"Not included in the foregoing are courses or sections
taught by part-time employees hired to replace unit members
on sabbatical leave of absence, on unpaid leave of absence,
on reduced teaching loads for the purpose of alternative
professional responsibilities or [union] release time, or
any other contractual released time, or any unforeseen
emergency."
9
The language in § C(10) first appeared in the parties' 1986-1989
contract and remained in effect through the 2004-2007 agreement.
As the board found, the purpose of capping the hiring of
part-time faculty traditionally has been to help ensure a
manageable workload for full-time faculty members. An increase
in the number of part-time faculty members results in an
increased workload for department chairs who must hire,
supervise, and evaluate the part–time faculty. It also
increases the workload for full-time faculty members generally
because it reduces the pool of full-time faculty available to
staff committees. An increased workload for full-time faculty
members reduces their ability to pursue scholarship (e.g.,
research, publishing, and presentation at conferences) in their
chosen fields of study. It also reduces their ability to meet
and work one-on-one outside the classroom with their students.
The caps on the percentage of part-time faculty contained
in § C(10) do not leave the colleges without flexibility in
hiring. As the board found, before the start of an academic
year, the parties know the core courses offered; the number of
full-time tenured, tenure-track, and temporary faculty; and the
number of students enrolled for the fall semester. This
information makes it possible for the colleges to avoid
violating § C(10) in a number of ways. The colleges can
(1) hire more full-time faculty members; (2) where permissible
10
under the agreement, direct full-time faculty to teach more
courses, including lower-level core courses; (3) cancel courses;
(4) reduce course offerings; (5) combine low-enrollment courses;
(6) increase student enrollment caps for courses; (7) use
historic data to plan courses more carefully; and (8) control
matriculation.
Moreover, when there is a shortage of faculty due to
exigent circumstances such as retirement, medical leave of
absence, sabbatical, death, or increase in student enrollment,
§ C(10) does not limit the colleges' ability to hire faculty
members on a full-time temporary (semester-by-semester) or part-
time temporary (course-by-course) basis. The colleges also may
respond by arranging tenured and tenure-track faculty to assume
more courses than required by the agreement or by shifting full-
time faculty members from compliant to noncompliant
departments.13
d. Violations of part-time faculty hiring caps. For seven
years, from academic year 2001-2002 through academic year 2007-
2008, nearly all of the State colleges reported having academic
13 The parties explain that this does not mean transferring
a professor from one department to another, but rather
increasing the number of full-time faculty positions in some
departments and decreasing the number of such positions in
others.
11
departments in violation of the part-time faculty hiring caps.14
The total number of departments that violated the caps rose from
fourteen in academic year 2001-2002 to thirty-one in academic
year 2007-2008. The total number of course sections that
violated those caps rose from 416 in academic year 2004-2005 to
664 in academic year 2007-2008. Specifically, in academic year
2005-2006, five colleges had twenty departments and 346 course
sections taught by part-time faculty members that exceeded the
fifteen percent cap.15 In academic year 2006-2007, seven
colleges reported having twenty-seven departments and 551 course
sections in violation of the caps. In academic year 2007-2008,
eight colleges had thirty-one departments and 663 course
sections in excess of the caps.
e. Prior proceedings. By a memorandum dated March 7,
2002, the union filed a consolidated grievance with the chair of
the Council of State College Presidents (council),16 alleging
that the BHE had violated the part-time hiring cap by exceeding
14The one college in compliance was Fitchburg State
College.
15Mass. Art reported zero violations for academic year
2005-2006.
16The Council of State College Presidents (council) is the
body by which the presidents of the nine State colleges act upon
matters of mutual concern, notably collective bargaining. Under
the terms of the agreement, the BHE acts through the council or
its chair in matters arising thereunder, including grievances.
12
the maximum number of part-time faculty in each academic
department.17 By letter dated February 23, 2006, the chair of
the council notified the union president of her decision on the
grievance, finding that the BHE violated § C(10) by excessive
reliance on part-time faculty. Her decision stated in part:
"I find no reason to question the sufficiency of the
factual basis for the [union]'s claim. I conclude from it
that seven of the Colleges -- Fitchburg [State College] and
[Massachusetts] Maritime Academy are . . . exceptions --
have at different points (though not at every point in
every case) violated the Agreement by employing, in various
departments at various times, more part-time faculty to
teach three-credit courses than the Agreement permits."
The chair went on to direct the colleges to reduce their
reliance on part-time faculty starting in academic year 2006-
2007 and to be in compliance with § C(10) no later than the end
of academic year 2008-2009.
The parties commenced successor contract negotiations in
2007. During that summer, the BHE proposed to delete § C(10).
The union rejected that proposal, and the BHE withdrew it. Also
in the summer of 2007, the union discovered that some colleges
had failed to reduce their reliance on part-time faculty for
academic year 2006-2007 and had, in fact, increased the number
of part-time faculty members who were hired in excess of the
17At least one State college, Salem State College,
acknowledged that several of its departments were in violation
of the fifteen percent cap.
13
fifteen and twenty percent caps and in contravention of the 2006
grievance decision.
Although the parties finalized the successor agreement on
August 27, 2007, which also included a part-time faculty hiring
cap, the BHE, through its counsel, took the position that this
provision "intrudes upon and impairs an authority that the laws
of this Commonwealth vest exclusively in the persons charged
with managing the State Colleges . . . in other words, [it is a
matter] of managerial prerogative" and that the provision is
"unlawful," "unenforceable as a matter of law," and "a legal and
contractual nullity." However, the president of Fitchburg State
College assured the union on behalf of the council:
"Speaking for all of the Colleges, we wish you to know that
we intend, in fact, to adhere to the provisions of the new
collective bargaining agreement now at issue. With respect
to the use of part-time faculty, therefore, the Colleges
will continue to implement the grievance decision . . .
rendered on February 23, 2006."
Despite this assurance, certain departments at Bridgewater State
College, Framingham State College, Salem State College, and
Westfield State College, as well as Mass. Art, still violated
the fifteen and twenty percent caps for academic year 2007-2008
by excessive reliance on part-time faculty members.
On May 30, 2008, pursuant to G. L. c. 150E, § 11, the union
filed a charge of prohibited practice with the Division of Labor
Relations (division), alleging that the BHE violated its duty to
14
bargain in good faith under G. L. c. 150E, § 6, by repudiating
§ C(10) of the agreement as well as the 2006 grievance decision.
The division investigated the charge and, on May 6, 2009, issued
a complaint of prohibited practice. Over several days in 2010
and 2011, a hearing proceeded before a hearing officer, who
issued a decision on January 16, 2014, finding that the BHE had
repudiated both § C(10) and the 2006 grievance decision. The
BHE appealed to the board, which affirmed the hearing officer's
decision in its entirety.18 The BHE appealed to the Appeals
Court, see G. L. c. 150E, § 11 (i), and we transferred the case
to this court on our own motion.
2. Discussion. We review the board's decision pursuant to
G. L. c. 30A, § 14 (7), under which a final administrative
agency decision will be upheld unless, "among other grounds, it
is '[u]nsupported by substantial evidence,' G. L. c. 30A, § 14
(7) (e), or '[a]rbitrary or capricious, an abuse of discretion
or otherwise not in accordance with law, G. L. c. 30A, § 14 (7)
(g)."19 Commissioner of Admin. & Fin. v. Commonwealth Employment
18In doing so, the board accepted the hearing officer's
findings of fact, with minor modifications.
19Although the BHE claims that the board disregarded
certain evidence and disputes particular inferences drawn by the
board from the evidence, the BHE has not shown that any of the
findings were unsupported by substantial evidence. See Duggan
v. Board of Registration in Nursing, 456 Mass. 666, 674 (2010),
citing School Comm. of Brookline v. Bureau of Special Educ.
Appeals, 389 Mass. 705, 716 (1983) ("the reviewing court must
15
Relations Bd., 477 Mass. 92, 95 (2017), citing G. L. c. 150E,
§ 11 (i). We "give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as
the discretionary authority conferred upon it." G. L. c. 30A,
§ 14. Here, the BHE grounds its argument in the nondelegability
doctrine, insisting that § C(10) is unenforceable because the
provision impermissibly intrudes on the BHE's managerial
authority, see, e.g., Billerica v. International Ass'n of
Firefighters, Local 1495, 415 Mass. 692, 694 (1993), and that
the board erred in failing so to conclude.20
The BHE contends that § C(10) infringes on the nondelegable
power that the statute at issue here, G. L. c. 15A, § 22,
confers upon the State college boards of trustees to "appoint,
transfer, dismiss, promote and award tenure to all personnel,"
and, more generally, the "unfettered authority to make decisions
bearing on core issues of educational policy," in an effort to
provide the most effective education for students" (quotations
omitted). Massachusetts Community College Council v.
Massachusetts Bd. of Higher Educ./Roxbury Community College, 81
defer to the agency's right to draw inferences from the
testimony and evidence before it").
20As noted supra, the hearing officer found that the BHE
deliberately repudiated § C(10), and the board upheld this
finding over the BHE's challenge. The BHE has not pressed that
issue before us.
16
Mass. App. Ct. 554, 560 (2012), S.C., 465 Mass. 791 (2013),
quoting Board of Higher Educ. v. Massachusetts Teachers Ass'n,
NEA, 62 Mass. App. Ct. 42, 49 (2004). See G. L. c. 15A,
§ 22 (c).
However, there is a "strong public policy favoring
collective bargaining between public employers and employees
over the conditions and terms of employment." Somerville v.
Somerville Mun. Employees Ass'n, 451 Mass. 493, 496 (2008).
Thus, "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." Massachusetts Bd. of Higher
Educ./Holyoke Community College v. Massachusetts Teachers
Ass'n/Mass. Community College Council/National Educ. Ass'n, 79
Mass. App. Ct. 27, 32 (2011).
The scope of a governmental employer's nondelegable
authority depends on "the explicitness of the statutory
authorization under which [that] employer acts." Lynn v. Labor
Relations Comm'n, 43 Mass. App. Ct. 172, 182 (1997). "Where the
public sector employer is operating under the authority of
statutes that define in broad, general terms the employer's
management powers, the scope of exclusive management powers has
been worked out 'on a case by case basis.'" Id. at 177, quoting
Burlington v. Labor Relations Comm'n, 390 Mass. 157, 164 (1983).
17
In such a case, we ask "whether the ingredient of public
policy in the issue subject to dispute is so comparatively heavy
that collective bargaining, and even voluntary arbitration, on
the subject is, as a matter of law, to be denied effect." Lynn,
43 Mass. App. Ct. at 178, quoting School Comm. of Boston v.
Boston Teachers Union, Local 66, 378 Mass. 65, 71 (1979).21 For
example, in School Comm. of Newton v. Labor Relations Comm'n,
388 Mass. 557, 565-566 (1983), we ruled that statutes conferring
"general authority [on a school committee] over the operation
and maintenance of public schools," as well as "general grants
of authority to discharge employees," must yield to the
obligation to engage in collective bargaining over the decision
to achieve a reduction in force by means of layoffs and the
impact of that decision on employees.
Where, in contrast, the employer acts "under the authority
of a statute or law authorizing the employer to perform a
specific, narrow function or, alternatively, acts with reference
to a statute specific in purpose that would be undermined if the
employer's freedom of action were compromised by the collective
21Even if a management decision itself is a matter of
nondelegable authority, the employer may nonetheless be required
to bargain over ancillary matters such as the means of
implementing that decision and the impact of the decision on the
terms and conditions of employment. School Comm. of Newton v.
Labor Relations Comm'n, 388 Mass. 557, 563-564 & n.5 (1983), and
cases cited. Lynn v. Labor Relations Comm'n, 43 Mass. App. Ct.
172, 179-180 (1997).
18
bargaining process," we will not enforce a conflicting provision
in a collective bargaining agreement. Lynn, 43 Mass. App. Ct.
at 180. Instead, the narrowly drawn statute would take
precedence.22 For example, in Local 589, Amalgamated Transit
Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407 (1984),
the enabling statute of the Massachusetts Bay Transportation
Authority (MBTA) was amended so that the MBTA was prohibited
from "enter[ing] into collective bargaining agreements with
respect to matters of inherent management right," which
expressly included the right "to hire part-time employees." Id.
at 413 n.2, quoting G. L. c. 161A, § 19, as amended by St. 1980,
c. 581, § 8. When certain provisions in an arbitrator's
decision dealt with the percentage of part-time employees that
the MBTA could hire, and dictated certain terms of their
employment, this court determined that the challenged provisions
were unenforceable as they improperly intruded on the MBTA's
inherent management rights. Id. at 415-416.
22The exception to this rule is found in G. L. c. 150E,
§ 7 (d), which enumerates several statutes that would yield to
the terms of a collective bargaining agreement if there were a
conflict between one of the statutes and the agreement. See
Chief Justice for Admin. & Mgt. v. Office & Professional
Employees Int'l Union, Local 6, AFL-CIO, 441 Mass. 620, 629
(2004). Although the statute at issue here, G. L. c. 15A, § 22,
is not among the statutes enumerated in G. L. c. 150E, § 7 (d),
we note that, unlike G. L. c. 15A, § 22, "the statutes . . . in
§ 7 (d) . . . are specific mandates to do or not to do something
in connection with the terms and conditions of employment of
public employees." School Comm. of Newton, 388 Mass. at 566.
19
Similarly, in School Comm. of Natick v. Education Ass'n of
Natick, 423 Mass. 34, 37-38 (1996), this court concluded that a
provision in a collective bargaining agreement prohibiting the
nonrenewal of a teacher's employment without just cause could
not be used to require the reappointment of a school athletic
coach, because G. L. c. 71, § 47A, specifically limited the
tenure of public school athletic coaches to three years. We
reasoned that "[a] collective bargaining agreement which
conferred just cause protection, and de facto tenure, on a
public high school coach would conflict with the durational
limitation of § 47A." Id. at 39.
In our view, c. 15A, § 22, is a grant of management
authority in broad, general terms. Unlike the statute at issue
in Local 589, Amalgamated Transit Union, 392 Mass. at 413 n.2,
nothing in the language of § 22 explicitly prohibits the BHE
from bargaining over the hiring of part-time faculty. The
statutory authority to "appoint, transfer, dismiss, promote and
award tenure" set forth in § 22 places in the realm of
nondelegable management authority only the "authority to make
'specific appointment determinations, and decisions to abolish
positions.'" Massachusetts Community College Council, 81 Mass.
App. Ct. at 560, quoting Board of Higher Educ. v. Massachusetts
Teachers Ass'n, NEA, 62 Mass. App. Ct. 42, 49 (2004). See
Roxbury Community College, 423 Mass. at 32 (decision to abolish
20
full-time position within exclusive managerial prerogative of
college administrators; arbitrator improperly directed college
to create full-time position and assign it to specific
grievant). See also School Comm. of Natick, 423 Mass. at 39,
quoting School Comm. of Holbrook v. Holbrook Educ. Ass'n, 395
Mass. 651, 655 (1985) ("it is by now well-settled that 'specific
appointment determinations . . . are within the exclusive
managerial prerogative of [employers], and thus beyond the scope
of collective bargaining"). Section C(10) of the agreement,
which limits only the percentage of courses that may be taught
by part-time faculty in certain departments, does not interfere
with this authority; that is, it does not in any way dictate,
for example, whom to hire or to whom to award tenure.
Nor does § C(10) materially conflict with the BHE's more
general authority to set educational policy. In arguing that
§ C(10) intrudes on this authority, the BHE contends that
limiting the number of courses taught by part-time faculty, who
are less expensive to employ than full-time faculty, requires
the colleges to sacrifice other objectives and inhibits the
ability to provide students with a high-quality education in a
cost-effective manner. But if we were to hold that these
financial considerations rendered § C(10) an intrusion on
nondelegable authority, we would be hard-pressed to discern any
limiting principle. Any provision or any given collective
21
bargaining agreement could potentially affect the way an
employer allocates funds by, for example, requiring the employer
to pay higher wages than it otherwise would have, thus diverting
resources away from the employer's other objectives. The
collective bargaining agreement at issue does not usurp
managerial authority merely by requiring the colleges to balance
competing obligations within certain parameters.
To the extent § C(10) touches on nondelegable decisions of
educational policy, it is the result of proper collective
bargaining over the means to implement that policy. As
mentioned in note 21, supra, "the means of implementing . . . a
nondelegable decision may properly be the subject of an
enforceable collective bargaining agreement." School Comm. of
Newton, 388 Mass. at 564. Indeed, as the board observed,
§ C(10) "only comes into play once the [BHE] determines the
number of students it will admit and the number of classes that
must be taught in any given college and/or department and after
the [BHE] makes a decision whether to hire additional faculty to
meet those needs." Only then can it be decided how many full-
or part-time faculty must be hired in order to teach the
classes, thus implementing the core policy decisions concerning
the colleges' curricula.
We conclude that § C(10) of the agreement is valid and
enforceable. The parties bargained for it pursuant to the
22
collective bargaining process, and the BHE is bound to abide by
it as long as the agreement remains in force.23
5. Conclusion. The decision of the Commonwealth
Employment Relations Board is affirmed.
So ordered.
23We note, as did the board, that the State college
presidents reaffirmed their commitment to comply with § C(10).
The BHE, of course, remains free to raise its objections to the
caps at the bargaining table and to offer the union other
concessions, if need be, to raise the limits or remove them
altogether. And if the parties should reach an impasse despite
good faith bargaining, there are procedures available to resolve
it. See G. L. c. 150E, § 9.