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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2015-0187

UNIVERSITY SYSTEM OF NEW HAMPSHIRE BOARD OF TRUSTEES & a.

v.

MARCO DORFSMAN & a.

Argued: November 12, 2015

Opinion Issued: December 23, 2015

Sulloway & Hollis, P.L.L.C., of Concord (Edward M. Kaplan on the brief 

and orally), for the petitioners.

Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the brief and 

orally), for the respondents.

DALIANIS, C.J. The respondents, Marco Dorfsman and the University of 

New Hampshire Chapter of the American Association of University Professors 

(Union), appeal an order of the Superior Court (Tucker, J.) granting the petition 

for declaratory relief filed by the petitioners, the University System of New 

Hampshire Board of Trustees and the University of New Hampshire 

(collectively, UNH). The superior court vacated the arbitrator’s decision that 

UNH had violated its collective bargaining agreement (CBA) with the Union by 

terminating Dorfsman’s employment for engaging in an act of “moral 

turpitude.” We affirm.
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I. Procedural Background

The relevant facts follow. In 2012, Dorfsman was an Associate Professor 

and the Chair of the Language, Literature, and Culture Department at UNH. In 

December of that year, he intentionally lowered the evaluations that students 

had given a certain lecturer by erasing markings on the evaluations; if the 

highest ranking had been given, he entered a different and lower rating. In 

May 2013, UNH terminated Dorfsman’s employment for this conduct, which 

UNH determined constituted an act of “moral turpitude” within the meaning of 

the CBA. Dorfsman and the Union grieved his termination, and, pursuant to 

the CBA, the parties submitted to binding arbitration to resolve that grievance.

Although the arbitrator agreed with UNH that Dorfsman’s conduct 

constituted an act of “moral turpitude,” he also determined that, because of 

several mitigating factors, Dorfsman’s termination did not comport with 

principles of just cause. At the arbitration hearing, the arbitrator remanded 

the matter so that they could negotiate the proper level of discipline; should 

they fail to agree within 30 days, the arbitrator would determine Dorfsman’s 

discipline.

UNH timely filed its complaint in superior court seeking a declaration 

that the arbitrator had exceeded his authority and requesting the court to 

vacate his decision. Following a hearing, the trial court concluded that: (1) it 

had jurisdiction to consider UNH’s appeal of the arbitrator’s award; (2) the 

issues raised in that appeal were ripe for adjudication; and (3) the arbitrator 

exceeded his authority under the CBA when he found that Dorfsman’s 

termination was not supported by just cause. The respondents unsuccessfully 

moved for reconsideration, and this appeal followed.

On appeal, the respondents argue that the trial court lacked jurisdiction 

to review the arbitrator’s decision, the issues are not ripe for judicial review, 

and the arbitrator did not exceed his authority when he found that UNH lacked 

just cause to terminate Dorfsman’s employment. The respondents do not 

challenge the arbitrator’s finding that Dorfsman’s conduct constituted “moral 

turpitude” within the meaning of the CBA.

II. Analysis

A. Jurisdiction

We first address whether the superior court had jurisdiction to consider 

UNH’s appeal of the arbitrator’s decision. Whether the trial court had

jurisdiction is a question of law subject to de novo review. See In the Matter of 

Muller & Muller, 164 N.H. 512, 517 (2013). The respondents contend that the 

superior court lacked jurisdiction to review the arbitrator’s award because: (1) 

RSA chapter 542 is the only means by which the court could have had such 
3

jurisdiction; (2) pursuant to RSA 542:1 (2007), the provisions of RSA chapter 

542 do “not apply to any arbitration agreement between . . . employers and 

associations of employees unless such agreement specifically provides that it 

shall be subject to the provisions” of RSA chapter 542; and (3) the CBA does 

not specifically provide that it is subject to the provisions of that chapter.

Article 9.5.5 of the CBA provides, in pertinent part:

The decision of the Arbitrator . . . shall be final except that within 

thirty (30) calendar days after the issuance of a decision by the 

Arbitrator either party may appeal the decision to the Superior 

Court. The basis of the appeal shall be limited to plain mistake, 

whether legal or factual, fraud, corruption, or misconduct by the 

parties, or on the grounds that the Arbitrator exceeded his or her 

powers as specified in this Article.

Because they do not argue otherwise, the petitioners apparently agree that the 

language of Article 9.5.5 was insufficient to bring the CBA within the aegis of 

RSA chapter 542. See Southwestern Trans. Co. v. Durham, 102 N.H. 169, 173 

(1959) (stating that “[t]he collective bargaining agreement in this case is subject 

to the provisions of RSA ch. 542 by its express terms”); cf. Appeal of Internat’l 

Assoc. of Firefighters, 123 N.H. 404, 409 (1983) (holding that arbitrator’s 

decision was not subject to review by the New Hampshire Public Employee 

Labor Relations Board because the parties’ agreement “made no reference to 

RSA chapter 542[,] . . . did not provide for an appeal to the PELRB[,] [and] . . . 

expressly stated that the arbitrator’s decision was to be binding upon both the 

union and the city”). Accordingly, for the purposes of this appeal, we assume 

without deciding that RSA chapter 542 does not apply to this case.

The petitioners argue that, notwithstanding RSA chapter 542, the 

superior court had jurisdiction to review the arbitration award here. We agree.

“The superior court is a court of general jurisdiction and has authority to 

entertain actions in equity where there is no adequate remedy at law.” 

Woodstock Soapstone Co. v. Carleton, 133 N.H. 809, 816 (1991); see RSA 

498:1 (2010). We have previously recognized that the superior court has 

jurisdiction to review arbitral awards. See, e.g., Brampton Woolen Co. v. Local 

Union, 95 N.H. 255, 256 (1948) (concluding that court had jurisdiction to 

determine whether a dispute was arbitrable); Ford v. Burleigh, 60 N.H. 278 

(1880) (reviewing whether arbitrators exceeded their authority).

To the extent that the legislature intended RSA chapter 542 to abrogate 

the common law right of superior court review of an arbitration award when, as 

in this case, the parties specifically bargained for that review, it had to state so 

expressly. “We will not construe a statute,” here RSA chapter 542, “as 

abrogating the common law unless the statute clearly expresses such an 
4

intention.” Case v. St. Mary’s Bank, 164 N.H. 649, 655 (2013) (quotations and 

brackets omitted). RSA chapter 542 does not clearly express such an 

intention. Indeed, RSA 542:1 exempts “any arbitration agreement between 

employers and employees, or between employers and associations of 

employees,” unless that agreement “specifically provides that it shall be subject 

to the provisions of [the] chapter,” implying that far from intending to abrogate, 

the legislature intended to preserve the common law right of superior court 

review of arbitration decisions. Thus, we agree with UNH that the superior 

court had jurisdiction to review the arbitrator’s decision.

The respondents argue that our decision “create[s] havoc in the public 

sector labor community by establishing the Superior Court as an appellate 

body for run of the mill employment related arbitration cases, even for labor 

agreements that do not invoke RSA 542.” This argument is made to the wrong 

forum, as matters of public policy are reserved for the legislature. Petition of 

Kilton, 156 N.H. 632, 645 (2007). Moreover, given that the New Hampshire 

Public Employee Labor Relations Board “has no general authority to review an 

arbitration award, absent some indication that the parties intended to reserve a 

right to administrative review of the award,” Bd. of Trustees v. Keene State Coll. 

Educ. Assoc., 126 N.H. 339, 342 (1985), we fail to see how our decision 

“create[s] havoc in the public sector labor community.”

We have reviewed the respondents’ remaining arguments on this issue 

and conclude that they do not warrant further discussion. See Vogel v. Vogel, 

137 N.H. 321, 322 (1993).

B. Ripeness

We next consider whether the issues in UNH’s appeal are ripe for 

adjudication. “[R]ipeness relates to the degree to which the defined issues in a 

case are based on actual facts and are capable of being adjudicated on an 

adequately developed record.” Appeal of City of Concord, 161 N.H. 344, 354, 

(2011) (quotation omitted). Although we have not adopted a formal test for 

ripeness, we have found “persuasive the two-pronged analysis used by other 

jurisdictions that evaluates the fitness of the issue for judicial determination 

and the hardship to the parties if the court declines to consider the issue.” 

Appeal of State Employees’ Assoc., 142 N.H. 874, 878 (1998). With respect to 

the first prong of the analysis, fitness for judicial review, a claim is fit for 

decision when: (1) the issues raised are primarily legal; (2) they do not require 

further factual development; and (3) the challenged action is final. Petition of 

State of N.H. (State v. Fischer), 152 N.H. 205, 210 (2005), superseded by rule 

on other grounds as stated in State v. Mottola, 166 N.H. 173, 176 (2014). “The 

second prong of the ripeness test requires that the contested action impose an 

impact on the parties sufficiently direct and immediate as to render the issue 

appropriate for judicial review at this stage.” Id. (quotations omitted).
5

The respondents challenge the ripeness of UNH’s appeal issues on a 

single ground – that the arbitration award in this case is not final. They argue 

that the award is not final because it directed the parties to negotiate the 

penalty to be imposed. The respondents contend that without a penalty, “there 

is no award for any [c]ourt to review.” We disagree.

We find Providence Journal v. Providence Newspaper Guild, 271 F.3d 16 

(1st Cir. 2000), instructive. In the First Circuit, when “an arbitration case . . . 

is bifurcated into liability and damages phases, the arbitral award with respect 

to liability is a final award under the Federal Arbitration Act . . . and is 

therefore subject to review by courts.” Providence Journal, 271 F.3d at 19 

(citation omitted). To determine whether an arbitration award is “final, and 

thus subject to judicial review,” the First Circuit Court of Appeals examines two 

factors: “(1) whether, and to what extent, both parties had expressed an intent 

to bifurcate, and (2) whether the arbitrator and the parties understood the 

determination of liability to be a final award.” Id. (quotation omitted).

In Providence Journal, the court concluded that, although the parties did 

not formally bifurcate the arbitration proceedings, they informally “divided the 

arbitration into separate phases,” a liability phase and a remedy phase, “and 

requested that the arbitrator retain jurisdiction over the remedy issue.” Id. at 

20. In the liability phase, the arbitrator had “to determine whether the 

collective bargaining agreement had been violated.” Id. at 19. “All evidence 

related to the issue of liability was then presented to the arbitrator, and shortly 

thereafter he issued his decision on liability.” Id. Because “both the parties 

and the arbitrator agreed to bifurcate the arbitral proceeding and understood 

the determination of liability to be a final award,” the court deemed the 

arbitrator’s decision on liability to be a “final” decision subject to judicial 

review. Id. at 20 (quotation omitted).

In this case, as in Providence Journal, “the parties intended, though 

never formally stated, to bifurcate the proceedings.” Id. According to the 

arbitrator, he was initially to determine “whether [UNH’s] decision to dismiss

. . . Dorfsman violated the terms of the [CBA].” The arbitrator stated that the 

parties then agreed “that should [he] . . . decide[ ] . . . that the dismissal 

violated the [CBA], . . . the matter should be remanded back to the parties to 

attempt to agree upon an appropriate resolution” and, if they were unable to 

agree, he “would retain jurisdiction over any appropriate remedy.” “[H]ad the 

parties not been stipulating to bifurcation, there would have been no need for 

[them] to specifically request that the arbitrator retain jurisdiction over the 

remedial phase.” Id.

As in Providence Journal, the parties and arbitrator understood the 

arbitrator’s liability decision to be final. Here, both the parties and the 

arbitrator understood that, once the arbitrator decided whether UNH violated 

the CBA, there were to be no further arbitral proceedings on that question.
6

Accordingly, as to the only issue the arbitrator decided – whether UNH violated 

the CBA when it terminated Dorfsman’s employment – we deem the arbitrator’s 

decision to be final and properly the subject of judicial review. See id. Because 

the respondents do not challenge the ripeness of UNH’s appeal issues on any 

other ground, we conclude that those issues are ripe for our review.

C. Scope of Arbitrator’s Authority

Finally, we address whether the trial court correctly determined that the 

arbitrator exceeded his authority under the CBA when he found that 

Dorfsman’s termination was not supported by just cause. “A judicial challenge 

to arbitral authority requires the reviewing court to consider both the CBA and 

the arbitral submission.” Appeal of Merrimack County, 156 N.H. 35, 39 (2007) 

(quotation omitted). Although ordinarily we interpret contractual provisions de

novo, “the general rule is that the interpretation of a CBA is within the province 

of the arbitrator, subject to certain exceptions recognized by our case law that 

are not relevant here.” Id. at 40 (quotation and brackets omitted). Thus, our 

review, and the superior court’s review, of the arbitrator’s interpretation of the 

CBA is limited. See id. We accord the same deference to the arbitrator’s 

interpretation of the parties’ submission. Id.

A court may not reject the arbitrator’s interpretation of the CBA simply 

because it disagrees with it. See id. Provided that an arbitrator’s decision 

“draws its essence” from the CBA and the arbitrator is not fashioning “his own 

brand of industrial justice,” the award will stand. Paperworkers v. Misco, Inc., 

484 U.S. 29, 36 (1987) (quotations omitted). A court’s task, thus, is “ordinarily 

limited to determining whether the arbitrator’s construction of the CBA is to 

any extent plausible.” Appeal of Merrimack County, 156 N.H. at 40 (quotation, 

ellipsis, and brackets omitted).

However, “[w]hen the arbitrator’s words manifest an infidelity to th[e] 

obligation” to draw the essence of his award from the collective bargaining 

agreement, “courts have no choice but to refuse enforcement of the award.” 

Steelworkers v. Enterprise Corp., 363 U.S. 593, 597 (1960). One example of 

when an arbitrator’s award fails to draw its essence from the CBA is when the 

award conflicts with the express terms of the CBA. See Misco, Inc., 484 U.S. at 

38. “If the language of an agreement is clear and unequivocal, an arbitrator 

cannot give it a meaning other than that expressed by the agreement.” Poland 

Spring Corp. v. United Food, Local 1445, 314 F.3d 29, 33 (1st Cir. 2002).

Here, we cannot say that the arbitrator’s construction of the CBA was “to 

any extent plausible.” Appeal of Merrimack County, 156 N.H. at 40 (quotation 

omitted). According to the arbitrator, the only issue for his review in this 

bifurcated proceeding was “whether [UNH’s] decision to dismiss . . . Dorfsman 

violated the terms of the [parties’] agreement.” Article 9.5.4 of the CBA 

similarly limited the arbitrator’s authority in this first phase of the proceedings
7

to determining whether UNH had “violated, misinterpreted or misapplied” the 

CBA when it terminated Dorfsman’s employment. Article 14.2.1 gave UNH the 

authority to terminate Dorfsman’s employment “for just cause.” That article 

defined “just cause” as “encompass[ing] professional incompetence, deliberate 

neglect of duty or moral turpitude.” Article 14.2.3 allowed UNH to terminate 

Dorfsman’s employment immediately. It provides: “If charges involving moral 

turpitude are sustained, the bargaining unit member may be terminated 

immediately and the bargaining unit member shall not be entitled to receive 

further pay or benefits.” By contrast, if the charges concerned professional 

incompetence or deliberate neglect of duty, Article 14.2.3 allowed UNH to 

terminate the employee’s employment only at “the end of the academic year, or,

in the case of tenured faculty members, twelve (12) months after receiving 

formal notice of [UNH’s] intent not to renew the appointment.”

Thus, having found that Dorfsman engaged in conduct constituting 

“moral turpitude” within the meaning of Article 14.2.1, “the arbitrator was 

barred from further inquiry because such additional probing constituted 

ignoring the plain language of the contract.” Poland Spring Corp., 314 F.3d at 

34 (quotations and brackets omitted). “[O]nce an arbitrator finds that an 

employee has committed an act specifically listed in the collective bargaining 

agreement as providing just cause for termination, the arbitrator is not free to 

fashion a separate remedy apart from the one provided by the parties’ 

agreement.” Id. “If the parties intended mitigating circumstances to affect 

whether [moral turpitude] constitutes just cause for termination, then they 

would have expressed their intent in the contract.” Id. at 35. Because the 

arbitrator found that Dorfsman engaged in “moral turpitude” and that finding 

is not challenged on appeal, his decision to overturn UNH’s decision to 

terminate Dorfsman’s employment “due to mitigating circumstances 

impermissibly substituted his own notions of industrial justice over those 

established by the contract.” Id.

The language of the CBA renders this case distinguishable from Appeal of 

Merrimack County. The collective bargaining agreement in Appeal of 

Merrimack County, unlike the CBA in this case, did not even use the phrase 

“just cause.” Appeal of Merrimack County, 156 N.H. at 43 (quotation omitted). 

Thus, in Appeal of Merrimack County, when the parties specifically “asked the 

arbitrator to decide whether the county had ‘just cause’ to terminate [the 

employee],” it was reasonable for the arbitrator to infer that they had asked 

him to apply traditional principles of just cause to his review of the county’s 

decision. Id. at 41. Such an inference was not reasonable in the instant case 

because the CBA here “unambiguously provided that employees could not be 

terminated except for just cause and expressly included the employee’s act 

within the definition of just cause.” Id. at 43.

The respondents contend that because the CBA provides that a 

bargaining unit member “may” be terminated and does not state that the 
8

member “shall” be so terminated, it does not “prevent the Arbitrator from 

fashioning a remedy in conformance with the general ‘just cause’ standard.” 

We disagree with the respondents that this is a plausible reading of the CBA.

“In a proper case[,] an arbitrator, in reliance on custom or usage in an 

industry, may construe a ‘just cause’ provision of a labor contract to include a 

progressive discipline requirement and may determine that certain conduct is 

‘just cause’ for discipline but not for discharge.” Mistletoe Exp. Serv. v. Motor 

Expressmen’s U., 566 F.2d 692, 695 (10th Cir. 1977). In the instant case, 

however, Article 14.2.1 explicitly says that moral turpitude constitutes just 

cause for either discharge or suspension without pay. In rejecting UNH’s 

chosen penalty for moral turpitude, “the arbitrator substituted his views of the 

proper industrial relationships for the provisions of the contract.” Id. “The 

arbitrator may not rewrite the labor contract” in such a way. Id. Because the 

arbitrator erroneously applied a further just cause analysis to misconduct that 

was enumerated in the CBA as a proper basis for discharge, the arbitrator 

exceeded the scope of his authority.

Affirmed.

HICKS, LYNN, and BASSETT, JJ., concurred.