Education – Tenure – Arbitration

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Where an arbitrator found a state college professor entitled to reinstatement and to a tenure review, that decision was advisory and not binding.

Thus, a Superior Court judgment confirming the arbitration award must be reversed.

“In this case, involving a tenure decision at a local State college, we take the words written in the collective bargaining agreement that ‘[t]he granting or failure to grant tenure shall be arbitrable but any award is not binding’ at their face value. As such, the decision of the arbitrator to reinstate the professor and order another tenure review was an advisory one and not binding upon the college. …

“… Although the [Massachusetts Community College Council] association recognizes that an arbitrator cannot issue a binding tenure decision, it argues that there was fault with the process, which it asserts is arbitrable and binding, and not with the substantive decision, which, while arbitrable, is not binding.

“The judge agreed with the association and emphasized that ‘the issue before the arbitrator was whether the manner in which Prof. [Virgilio] Acevedo was reviewed and considered for tenure violated the agreement, not whether the tenure decision itself did so’ (emphasis in original). The association and the judge both distinguish between ‘substantive’ and ‘procedural’ tenure awards. The association claims that because the award merely addressed the procedure under which Acevedo was denied tenure rather than the substantive decision to deny him tenure, the award must be binding and it must be confirmed under G.L.c. 150C.

“The problem with this interpretation is that the clear language of the CBA does not make such a distinction. The CBA does not differentiate between procedural and substantive rights. Rather, it clearly and unambiguously states that ‘[t]he granting or failure to grant tenure shall be arbitrable but any award is not binding.’ …

“… To conclude that the award is binding merely because the arbitrator considered the procedure used by the college to reach its decision to deny tenure would essentially render art. 10.06(F) meaningless. By voiding the original tenure decision and ordering Acevedo’s reinstatement, the arbitrator effectively overruled the college’s decision to deny him tenure.

“The plain meaning of art. 10.06(F) is clear; tenure decisions are not binding. If the parties to the CBA wished to make a distinction between procedure and substance they could have easily included such language. In this case, the arbitrator issued an award overriding the college’s decision to deny tenure. We read art. 10.06(F) to mean that such a decision is not binding. As such, the judge below erred in confirming the arbitration award.”

Massachusetts Community College Council v. Massachusetts Board of Higher Education/Roxbury Community College (Lawyers Weekly No. 11-054-12) (15 pages) (Kantrowitz, J.) (Appeals Court) Case heard by Budd, J., in Superior Court. Carol Wolff Fallon for the defendant; Will Evans for the plaintiff (Docket No. 11-P-576) (April 6, 2012).