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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 fulltime 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.

10 Mass. 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 

 

11 The 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.

12 The 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 parttime 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 fulltime 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 

 

14 The one college in compliance was Fitchburg State 

College.

15 Mass. Art reported zero violations for academic year 

2005-2006.

16 The 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 

 

17 At 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 

 

18 In doing so, the board accepted the hearing officer's 

findings of fact, with minor modifications.

19 Although 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").

20 As 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 

 

21 Even 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.

 

22 The 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 fullor 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.

 

23 We 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.