BOARD OF HIGHER EDUCATION & another [Note 1] vs. MASSACHUSETTS TEACHERS ASSOCIATION, NEA.

LENK, J. An arbitrator determined that Salem State College (college) violated its collective bargaining agreement when it terminated Adeleke Atewologun from teaching in its division of graduate and continuing education (DGCE) for the spring, 2000, semester, and indefinitely suspended him from teaching in the DGCE thereafter. The arbitrator's award required, inter alia, that the college restore Atewologun's eligibility for appointment to teach in the DGCE. A judge of the Superior Court vacated the award on the basis that the arbitrator had exceeded his authority. The Massachusetts Teachers Association (association) appeals from the amended judgment [Note 2] of the Superior Court vacating the arbitration award. We reverse.

Background. [Note 3] The college is a public institution of higher learning in the Commonwealth. G. L. c. 15A, § 5. In addition to its daytime undergraduate program, the college offers evening courses in the DGCE. See G. L. c. 15A, § 26. [Note 4] The college and the association are parties to a collective bargaining agreement (agreement) that governs the terms and conditions of employment in the DGCE.

Atewologun was hired by the college in the fall of 1987. He taught as a full-time day faculty member in the political science department [Note 5] and also taught courses in the DGCE program. In order to be eligible to teach in the DGCE, Atewologun had to be included in the designated continuing education pool of faculty candidates, and he had to be recommended by the DGCE chair for appointment to teach in the DGCE prior to the commencement

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of an instructional period. [Note 6]

Atewologun had been appointed to teach in the DGCE for the spring, 2000, semester. [Note 7] On January 26, 1999, a student submitted a written complaint to the college alleging that Atewologun had sexually harassed her. On March 23, 1999, another student wrote to the college also alleging that Atewologun had sexually harassed her. Both students filed lawsuits against the college and Atewologun. The president of the college, Nancy Harrington, in a letter dated December 3, 1999, informed Atewologun that it had been "credibly asserted" to her that he had "engaged in recent weeks . . . in a course of purposeful conduct that has had as it evident purpose to embarrass, harass, and intimidate" one of the students who had filed a complaint of harassment. Harrington directed Atewologun to cease all contact with the student.

In a second letter, dated January 13, 2000, Harrington informed Atewologun that, in order to conduct an investigation of the alleged harassment, she had decided "to place [him] on leave, with pay, immediately and until further notice, and to relieve [him] during that leave of all responsibilities as a full-time member of the faculty." Harrington further stated, "I have also instructed the Division of Graduate and Continuing Education to refrain from offering you any appointments to teach within the Division during the pendency of your leave." Atewologun did not teach in the DGCE during the spring, 2000, semester, nor has he taught in or received compensation from the DGCE program thereafter.

In a letter dated January 27, 2000, the association requested information from the college regarding the complaints against Atewologun; the college did not respond. The association then

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filed a grievance challenging the college's decision to terminate Atewologun from teaching in the DGCE program. The college denied the grievance by letter dated April 24, 2000. The matter proceeded to arbitration on the following stipulated issue:

"Did the Board of Higher Education violate the collective bargaining Agreement . . . by the letter that Nancy Harrington, President of Salem State College, addressed to Professor Adeleke Atewologun on January 13, 2000, and by its response or lack thereof to [his] request for information . . . ? If so, what shall be the remedy?" [Note 8]

At the hearing, the association maintained that Atewologun had been terminated from teaching in the DGCE for the spring, 2000, semester, without just cause, and that such action violated Article VI, Section E of the agreement, which provides in part:

"No unit member shall be disciplined or suspended without cause or terminated without just cause. Whenever any unit member is terminated during the term of any appointment, said member shall first be accorded the following rights: . . . ."

The college took the position that since it was under no contractual obligation to permit Atewologun to teach in the DGCE spring, 2000, semester, no termination or discipline had taken place. In the alternative, the college argued that it had cause to discipline Atewologun.

The arbitrator determined that the college had terminated Atewologun from teaching in the DGCE for the spring, 2000, semester, and that the action was disciplinary and without just cause. Similarly, the arbitrator found that the continuing suspension from eligibility to teach in the DGCE also constituted discipline to which the agreement applied. The arbitrator concluded that because the president had not evaluated Atewologun's professional performance or investigated the allegations against Atewologun before taking disciplinary action, the college's decision to suspend Atewologun from eligibility to teach in the DGCE violated the agreement.

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As remedy, the arbitrator ordered the following: (a) Atewologun was to be paid compensation in the amount he would have received for teaching in the DGCE for the spring, 2000, semester; (b) Atewologun was to be reinstated to the continuing education pool and thereby rendered eligible "to be considered for appointment to teach in the DGCE to the same extent as other members of the pool"; and (c) Atewologun was to be compensated for the pay he lost due to ineligibility during the period between the DGCE spring, 2000, semester and the date of the arbitration award (March, 2001), the amount to be calculated on the basis of Atewologun's average DGCE teaching load for the preceding five years. [Note 9]

The college filed a complaint in Superior Court to vacate or modify the award, and the association answered, seeking a judgment confirming the award pursuant to G. L. c. 150C, § 11(d). The judge, concluding that the decision to prohibit Atewologun from teaching in the DGCE was one of educational policy within the exclusive power of the college pursuant to G. L. c. 15A, § 22, vacated the award on the ground that the arbitrator had exceeded his authority. The association appeals.

Discussion. Standard of review. On appeal we assess whether the judge properly vacated the award on the basis of one of the five grounds enumerated in G. L. c. 150C, § 11. [Note 10] See School

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Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753 , 758 (2003). Because of a strong public policy favoring arbitration, judicial review of an arbitrator's award is limited in scope. We may not pass on an arbitrator's alleged errors of law or fact. [Note 11] Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers' Assn./Mass. Community College Council, 423 Mass. 23 , 27 (1996) (hereinafter HECC v. MTA). However, the question whether an arbitrator exceeded his or her authority is always subject to judicial review. School Comm. of W. Springfield v. Korbut, 373 Mass. 788 , 792 (1977).

We must determine whether the arbitrator exceeded his authority either because he rendered an award that infringed upon prerogatives reserved exclusively to public school administrators by G. L. c. 15A, § 22, or because he rendered an award that violated public policy. See Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. 13 , 16 (1995); Lyons v. School Comm. of Dedham, 440 Mass. 74 , 79 (2003). "[U]nless 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." HECC v. MTA, 423 Mass. at 27.

Termination and suspension. The college argues that the arbitrator improperly determined that Atewologun had been terminated from his employment in the DGCE for the spring, 2000, semester, relying upon HECC v. MTA, 423 Mass. at 26. In that case, an arbitrator found that a vacancy existed in the mathematics department; on appeal, the court held that this finding was "improper." Id. at 33. The college urges that we should likewise consider and reject the arbitrator's finding that Atewologun was terminated for the spring, 2000, semester. In HECC v. MTA, however, the court determined that it was improper for the arbitrator to have found that a vacancy existed, not because the arbitrator's fact finding was flawed, but because it was beyond the scope of the arbitrator's power to make any determination as to a vacancy. Id. at 32-33. The difference is subtle but central. Because the collective bargaining agreement at issue in HECC v. MTA provided that a "vacancy" was "a

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position for which funding [was] available and which the administration intend[ed] to fill," it was within the exclusive authority of the college to determine whether a vacancy existed. Id. at 26, 33. In contrast, here the college took the position during arbitration that its decision to prohibit Atewologun from teaching in the DGCE did not constitute disciplinary action; accordingly, the college maintained, the decision was not reviewable by the arbitrator.

Based upon his review of the factual record before him and his analysis of the agreement, however, the arbitrator determined that the college's action was disciplinary, and was therefore reviewable. "Unlike our review of factual findings and legal rulings made by a trial judge, we are strictly bound by an arbitrator's findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing." Boston Police Patrolmen's Assn. v. Boston, 60 Mass. App. Ct. 672 , 674 (2004), quoting from Lynn v. Thompson, 435 Mass. 54 , 61 (2001), cert. denied, 534 U.S. 1131 (2002). The college does not point to a provision in the agreement like that in HECC v. MTA, 423 Mass. at 26, 33, which delegates exclusively to itself the power to determine whether a termination has in fact taken place. Instead, Article VI, Section E of the agreement ("No unit member shall be disciplined or suspended without cause or terminated without just cause") indicates that a determination whether termination without just cause took place falls squarely within the ambit of the arbitrator's authority. Similarly, the arbitrator determined that the decision to remove Atewologun from the eligibility list for the DGCE for an indefinite period of time constituted discipline to which the agreement applied. The issues presented for the arbitrator's disposition required that he ascertain whether termination without just cause and discipline had taken place; he did not exceed his authority in so doing.

Appointment. The college next maintains that the decision whether to appoint Atewologun to teach in the DGCE was a matter within its exclusive managerial prerogative and therefore outside the scope of the arbitrator's authority. It relies upon G. L. c. 15A, § 22, inserted by St. 1991, c. 142, § 7, which provides, in relevant part: "Each board of trustees of a community college or state college . . . shall . . . appoint, transfer,

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dismiss, promote and award tenure to all personnel of said institution . . . ." The statute confers upon the administrators of public colleges and universities "unfettered authority to make decisions bearing on core issues of educational policy" in an effort to provide the most effective education for the Commonwealth's students. See HECC v. MTA, 423 Mass. at 29. This authority extends to decisions "concerning staffing and personnel." Id. at 28.

By virtue of such statutorily nondelegable authority, there are limitations upon what obligations a public school may undertake in collective bargaining agreements [Note 12]; it may not, for instance, delegate for decision by arbitration its authority to make "specific appointment determinations, and decisions to abolish positions." Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197 , 211 (1982). We agree that had the arbitrator required the college to appoint Atewologun, he would have exceeded his authority.

However, a school "may bind itself to follow certain procedures with respect to decisions committed to its exclusive authority, and a failure to follow those procedures may be the basis for an arbitrable grievance." HECC v. MTA, 423 Mass. at 28. See School Comm. of Danvers v. Tyman, 372 Mass. 106 , 114 (1977). In that way, school employees may be procedurally protected from ill-motivated discipline or termination, while the school maintains its substantive authority.

It follows that, while it was not within the authority of the arbitrator to order the appointment of Atewologun to teach in the DGCE, it was within his authority to determine whether the college adhered to the procedures set forth in the agreement concerning termination and suspension. The arbitrator found that the college violated the agreement when it terminated Atewologun without giving him notice of the charges, access to information regarding those charges, and an opportunity to deny, explain or justify his actions:

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"The record is devoid of any evidence that the President [Harrington] had proof that the Grievant [Atewologun] had engaged in the activities contained in the allegations, charges or complaints referenced in her January 13, 2000 letter. The record is equally devoid of evidence that the President afforded the Grievant the due process protections to which he was entitled pursuant to Article VI, Section E of the Agreement prior to her issuance of instruction that he not be allowed to teach in the DGCE program. . . . [T]he College did not have just cause to terminate his DGCE employment for the 2000 spring Semester . . . ."

The arbitrator similarly found that "the President's decision to deprive the Grievant of the eligibility to teach in the DGCE program . . . was not based upon a factual verification of the allegations leveled against the Grievant or even a [thorough] investigation of those allegations." The arbitrator further found that removal of Atewologun from the DGCE eligibility list was therefore discipline to which the agreement applied.

Having found that the college violated the agreement, it was also within the arbitrator's authority to award money damages for the college's past violation of the agreement, as long as the award did not compel appointment. The college argues that because the damage award for the suspension is based upon compensating Atewologun for a period of time when he was not appointed to teach, it is the functional equivalent of an order to appoint him. In HECC v. MTA, where the Supreme Judicial Court determined that the arbitrator exceeded his authority in concluding that a vacancy existed, the court held that it was nonetheless "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.' " HECC v. MTA, 423 Mass. at 33, quoting from School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651 , 657 (1985). Therefore, even in circumstances where an arbitrator exceeds his authority in deciding certain aspects of a dispute -- which he did not do here -- the award of damages is separable from that action. Here the arbitrator acted within his authority in fashioning the remedy. Compare HECC v. MTA, supra

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at 33. Because, pursuant to Article VI, Section C.1., of the agreement, [Note 13] the college retained the prerogative not to recommend Atewologun for appointment even though he was again to be among the faculty members in the continuing education pool eligible for appointment, the school's managerial authority was not invaded by that portion of the arbitrator's award. [Note 14]

Public policy. Finally, the college argues that the arbitrator's award offended the strong public policy against sexual harassment and was for that reason beyond the arbitrator's scope of authority. See Lyons v. School Comm. of Dedham, 440 Mass. at 79. An award may be vacated if (1) it violates a "well defined and dominant" public policy, (2) the employee has engaged in disfavored conduct "integral to the performance of employment duties," and (3) the conduct violates public policy to such an extent that it requires dismissal. Lynn v. Thompson, 435 Mass. at 63, quoting from Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. at 16, 17. Mindful that there is unquestionably an important public policy against sexual harassment, we must nonetheless be "cautious" when applying the public policy doctrine to vacate an arbitration award. See Lyons v. School Committee of Dedham, 440 Mass. at 79.

The arbitrator in this case made factual findings that the college had not put forward evidence supporting the allegations of sexual harassment and made a ruling of law that the college violated the agreement by the procedure (or lack thereof) it employed to terminate and suspend Atewologun from the DGCE. This case is therefore quite unlike School Dist. of Beverly v. Geller, 435 Mass. 223 (2001), where an arbitrator made findings of fact that there had been three incidents involving the use of physical force by a teacher against sixth grade students. The arbitrator's award reinstating that teacher was a violation of a public policy because the protection of children is a well defined and dominant public policy of the Commonwealth, and because the teacher's abusive conduct was integrally related to

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his employment and required dismissal. Id. at 238 (Ireland, J., concurring).

In the case before us, the college offered no evidence to the arbitrator of the alleged harassment; accordingly, there was no evidence from which to conclude that Atewologun had engaged in disfavored conduct integral to the performance of his employment duties. See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601 , 604-605 (2000). In addition, the arbitrator's award did not require the college to appoint Atewologun to teach. Cf. School Dist. of Beverly v. Geller, 435 Mass. 223 . We therefore discern no violation of public policy. See Lynn v. Thompson, 435 Mass. at 63.

Pursuant to G. L. c. 150C, § 11, and for the reasons stated above, we vacate the amended judgment of the Superior Court and order that judgment enter confirming the arbitration award.

So ordered.