THE STATE OF NEW HAMPSHIRE SUPREME COURT

CASE NO. 2015-0187

APPEAL OF MARCO DORFSMAN & UNIVERSITY OF NEW HAMPSHIRE CHAPTER OF AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS

BRIEF OF APPELLEES UNIVERSITY SYSTEM OF NEW HAMPSHIRE BOARD OF TRUSTEES & UNIVERSITY OF NEW HAMPSHIRE

Sulloway & Hollis, P.L.L.C. By: Edward M. Kaplan, Esq.

Bar # 1307 9 Capitol Street

Concord, NH 03301 603-224-2341

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... 1

QUESTIONS PRESENTED FOR REVIEW ................................................................................. 3

STATUTORY AND REGULATORY PROVISIONS AT ISSUE ................................................ 3

STATEMENT OF THE CASE ....................................................................................................... 6

I. Procedural History .............................................................................................................. 6

II. Facts of the Case ................................................................................................................. 8

SUMMARY OF THE ARGUMENT ........................................................................................... 13

STANDARD OF REVIEW .......................................................................................................... 15

ARGUMENT ................................................................................................................................ 15

I. The Superior Court Had Common Law Jurisdiction to Hear the Underlying Appeal Because RSA 542 Does Not Specifically Abrogate Common Law Right to Judicial Review . 15

A. RSA 542 Does Not Expressly Abrogate the Common Law Right to Judicial Review of the Arbitrator’s Decision .................................................................................................. 17

B. The Public Employee Labor Relations Board Does Not Have Jurisdiction over a Case That Does Not Allege an Unfair Labor Practice ................................................................... 19

II. The Arbitrator’s November 14, 2013 Decision Constituted a “Final and Binding Decision” That Was Ripe for Adjudication .............................................................................. 20

III. The Arbitrator Exceeded His Authority by Awarding Reinstatement When He Found Prof. Dorfsman Engaged in Moral Turpitude But Found No Just Cause for Termination ....... 24

CONCLUSION ............................................................................................................................. 29

CERTIFICATE OF COMPLIANCE AND REQUEST FOR ORAL ARGUMENT ................... 30

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TABLE OF AUTHORITIES

Cases Appeal of Bd. of Tr. of Univ. Sys. of N.H. for Keene State Coll., 129 N.H. 632 (1987) ............... 24 Appeal of Belknap Cnty. Comm’rs, 146 N.H. 757 (2001) ............................................................ 22 Appeal of Kennedy, 162 N.H. 109 (2011) ..................................................................................... 19 Appeal of Lincoln-Woodstock Co-op School Dist., 143 N.H. 598 (1999) .................................... 21 Appeal of Merrimack Cnty., 156 N.H. 35 (2007) ............................................................. 15, 26, 27 Appeal of State Emps. Ass’n of N.H., Inc., 142 N.H. 874 (1998) ........................................... 20, 21 Bennett v. Meader, 545 A.2d, 553 (Conn. 1988) .......................................................................... 16 Board of Trustees v. Keen State College Educ. Ass’n, 126 N.H. 339 (1985) ............................... 19 Brampton Woolen Co. v. Local Union 112, 95 N.H. 255 (1948) ................................................. 16 City of E. Providence v. United Steelworkers, 925 A.2d 246 (R.I. 2007) .................................... 27 Collins v. Tex Mall, L.P., 297 S.W.3d 409 (2d. Ct. Appeals 2009) .............................................. 17 Davis v. Bradford, 58 N.H 476 (1878) ......................................................................................... 16 Flanders v. Atkinson, 18 N.H. 167 (1846) .................................................................................... 15 Ford v. Burleigh, 60 N.H. 278 (1880) .......................................................................................... 16 Found. for Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168 (2013) ................................... 15 Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365 (2012) ...................................................... 17 Georgia-Pacific Corp. v. Local 27 United Paperworkers Int’l Union, 864 F.2d 940 (1st Cir.

1988) ............................................................................................................................. 26, 27, 28 Gray v. Seidel, 143 N.H. 327 (1999) ............................................................................................ 16 Heffner v. Jacobson, 498 A.2d 766 (N.J. 1985) ........................................................................... 16 Lassonde v. Stanton, 157 N.H. 582 (2008) ................................................................................... 21 Parker v. Dorsey, 68 N.H. 181 (1984) .......................................................................................... 16 Poland Springs Corp. v. United Food & Com. Wkrs. Int’l Union AFL-CIO-CLC, Local 1445,

314 F.3d 29, 33 (1st Cir. 2002), cert. denied, 540 U.S. 818 (2003) ....................... 24, 25, 26, 27 Rau v. N.H. Div. of Welfare, 115 N.H. 156 (1975) ....................................................................... 15 Sheehan v. N.H. Dep’t of Resources & Econ. Dev., 164 N.H. 365 (2010) ................................... 17 State v. Fischer, 152 N.H. 205 (2005) .................................................................................... 20, 22 Stolt-Nielson v. Animalfeeds Int’l Corp., 559 U.S. 662 (2010) .................................................... 22 World Architects & Eng’rs v. Strat, 713 N.W.2d 750 (Mich. 2006) ............................................ 17

Statutes RSA 273-A:5 ................................................................................................................................ 19 RSA 273-A:5b(h) .......................................................................................................................... 22 RSA 491:7 ..................................................................................................................................... 15 RSA 498:1 ..................................................................................................................................... 15 RSA 542 .................................................................................................................................. 18, 19 RSA 542:1 ............................................................................................................................... 16, 17

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RSA 542:8 ..................................................................................................................................... 18

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the superior court correctly held that reviewing a private arbitration decision was within its purview based on common law jurisdiction and the absence of any explicit statutory language to the contrary?

2. Whether the underlying matter was ripe for adjudication when the arbitrator

issued his final ruling that found no just cause for termination and ordered that the parties should discuss the means by which appellant Marco Dorfsman should be reinstated to his former faculty position?

3. Whether the arbitrator exceeded his authority granted to him by the parties’

collective bargaining agreement by agreeing with the appellee’s finding that appellant Marco Dorfsman committed an act of moral turpitude that equated to just cause for termination but nevertheless found that appellant Marco Dorfsman must be reinstated?

STATUTORY AND REGULATORY PROVISIONS AT ISSUE RSA 491:7 Jurisdiction

The superior court shall take cognizance of civil actions and pleas, real, personal, and mixed, according to the course of the common law, except such actions as are required to be brought in the family division under RSA 490-D, district courts under RSA 502-A, or the probate courts under RSA 547; of writs of mandamus and quo warranto and of proceedings in relation thereto; of petition and appeals relating to highways and property taken therefor and for other public use; of actions commenced in the probate or district courts where a right to jury trial is guaranteed by the constitution; of actions commenced in a district court which are transferable by statute to the superior court; of suits in equity under RSA 498:1; of petitions for new trials; of petitions for the redemption and foreclosure of mortgages; of all other proceedings and matters to be entered in, or heard at, said court by special provisions of law; and of all other proceedings and matters cognizable therein for which other special provision is not made. Source. RS 172:3, 5. 1855, 1659:2. 1859, 2211:3. GS 189:3. 1870, 2:1. GL 208:3. 1885, 13:1; 42:1. PS 204:4. 1901, 78:2. PL 316:6. RL 370:6. RSA 491:7. 1957, 244:6. 1963, 331:2. 1965, 327:4. 1973, 145:10. 1975, 395:4. 1992, 284:11, eff. Jan. 1, 1993. 2014, 204:31, eff. July 11, 2014.

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RSA 498:1 Jurisdiction

The superior court shall have the powers of a court of equity in the following cases: charitable uses; trusts other than those trusts described in RSA 564-A:1, over which the probate court has exclusive jurisdiction as provided in RSA 547:3, I(c) and (d); fraud, accident and mistake; the affairs of partners, joint tenants or owners and tenants in common; the redemption and foreclosure of mortgages; contribution; waste and nuisance; the specific performance of contracts; discovery; cases in which there is not a plain, adequate and complete remedy at law; and in all other cases cognizable in a court of equity, except that the court of probate shall have exclusive jurisdiction over equitable matters arising under its subject matter jurisdiction authority in RSA 547, RSA 547-C and RSA 552:7.

Source. RS 171:6. CS 181:9. 1855, 1659:12. GS 190:1. GL 209:1. 1885, 87:1. 1887, 77:2. PS 205:1. PL 317:1. RL 371:1. RSA 498:1. 1971, 179:9. 1992, 284:24. 2006, 91:1, eff. May 5, 2006. RSA 542:1 Validity of Arbitration Agreements

A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or an agreement in writing to submit to arbitration any controversy existing at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The provisions of this chapter shall not apply to any arbitration agreement between employers and employees, or between employers and associations of employees unless such agreement specifically provides that it shall be subject to the provisions of this chapter. Source. 1929, 147:1. RL 415:1. 1945, 191:1, eff. May 18, 1945.

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542:8 Jurisdiction of Court to Confirm, Modify, or Vacate Award

At any time within one year after the award is made any party to the arbitration may apply to the superior court for an order confirming the award, correcting or modifying the award for plain mistake, or vacating the award for fraud, corruption, or misconduct by the parties or by the arbitrators, or on the ground that the arbitrators have exceeded their powers. Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may in its discretion, direct a rehearing by the arbitrators or by new arbitrators appointed by the court.

Source. 1929, 147:1. RL 415:8.

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STATEMENT OF THE CASE

I. Procedural History

This appeal arises from an arbitration between the appellees, the University of New

Hampshire Board of Trustees and the University of New Hampshire (“UNH”), and appellants,

Marco Dorfsman (“Prof. Dorfsman) and the University of New Hampshire Chapter of the

American Association of University Professors (“AAUP”). The arbitration was governed by the

parties’ collective bargaining agreement (“CBA”).

Prof. Dorfsman previously served as an associate professor in the UNH College of

Liberal Arts (“COLA”) and chaired the Languages, Literatures, and Cultures Department

(“LLC”). The UNH administration terminated Prof. Dorfsman after it determined that he had

committed an act of moral turpitude. According to article 14.2.1 of the CBA, “moral turpitude”

constitutes just cause for dismissal. See App. to Appellants’ Br. at 104. Prof. Dorfsman grieved

the dismissal, which led to the contractual grievance process that culminated in the two-day

arbitration hearing and decision. Following the hearing, the arbitrator issued his decision dated

November 14, 2013 (“the Arbitration Decision”). Although the arbitrator agreed with the

appellants that Prof. Dorfsman’s misconduct constituted moral turpitude, he nonetheless ruled

that UNH did not have just cause to dismiss him and effectively awarded reinstatement. See id.

at 82. The arbitrator also directed the parties to “attempt to agree upon the appropriate level of

discipline for Professor Dorfsman’s serious misconduct” and requested that the matter be

“submitted back to this Arbitrator for the imposition of discipline” if the parties could not reach

agreement within thirty days. Id. at 1, 38. The arbitrator exceeded the authority granted to him

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by the CBA in reaching his conclusion by ignoring and/or nullifying the parties’ contractual

language.

Following the decision, UNH timely appealed to the Superior Court, as authorized by

CBA Art. 9.5.5, which provides:

The decision of the Arbitrator, within the limits described above, 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.

Id. at 93. UNH based its appeal on the specific ground that the arbitrator exceeded his authority

when he nullified and/or ignored the final sentence of CBA article 14.2.1.: “Just cause shall

encompass professional incompetence, deliberate neglect of duty or moral turpitude.” Id. at

104 (emphasis added). Article 14.2.3 also provides that if moral turpitude is found, “the

bargaining unit member may be terminated immediately and the bargaining unit member shall

not be entitled to receive further pay or benefits.” Id. A finding of moral turpitude therefore

necessitated a finding of just cause. Because the arbitrator agreed that there was moral turpitude,

his analysis was complete as moral turpitude justified Prof. Dorfsman’s termination.

Superior Court Judge Hon. Brian T. Tucker ruled on January 30, 2015 that the arbitrator

had exceeded his authority granted to him by the CBA and vacated the arbitrator’s decision. See

App. to Appellants’ Br. at 187. In his well-reasoned opinion, Judge Tucker further affirmed

appellee’s position that the Superior Court had common law jurisdiction to consider the matter

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and that the arbitrator’s decision was ripe for adjudication. Judge Tucker denied appellants’

motion for reconsideration, and the appellants subsequently filed the instant appeal.

In addition to arguing that the arbitrator exceeded his authority, this brief will also

address the threshold issues raised by appellants and discussed by Judge Tucker regarding

whether the Superior Court had jurisdiction to vacate that portion of the arbitrator’s decision that

exceeded his authority and whether the arbitration decision is ripe for adjudication.

II. Facts of the Case1

In the fall of 2012, Prof. Dorfsman was the UNH LLC department chair and his duties

included making recommendations regarding the employment of department lecturers. See id. at

48-50. Lecturers are non-tenured faculty, and they are not part of the AAUP bargaining unit. Id.

at 49. Rather, they are awarded contracts for employment and the ultimate decision to renew a

contract appointment is made by the COLA administration. Id.

In the recent past, Prof. Dorfsman advocated for the hire of a lecturer whose contract was

later rescinded because the administration determined that a proper search had not been

conducted for the hire. Id. at 52. In the wake of the rescission, Prof. Dorfsman felt that the

current lecturers whose contracts would be up for renewal should receive the same review

process that led to the rescission of the former lecturer.2 Id. Those lecturers included Emilie

Talpin (“Prof. Talpin”). Id. at 50.

1 Appellees acknowledge that the arbitrator’s factual findings are not in dispute; however, the following summary of the facts underlying this case is offered by way of background to provide the Court with context and an understanding of the circumstances in which the arbitrator issued his decision. 2 For context, the process included determining whether a foreign national may be employed in a particular position.

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Prof. Talpin’s contract was up for renewal in late fall of 2012. App. to Appellants’ Br. at

50. Prof. Talpin was anxious about the status of her contract renewal because she was not a

United States citizen and her ability to stay in the country hinged on her employment. Id. at 50.

She spoke about her concerns with Natalie Berenguier (“Prof. Berenguier”), the coordinator of

the LLC French Program in which Prof. Talpin taught. Id.

At about the same time, Prof. Dorfsman shared his doubts concerning Prof. Talpin’s

teaching abilities and the lecture hiring process to the COLA deans and Prof. Berenguier. Id. at

51-52. Prof. Dorfsman told Prof. Berenguier that he and the prior department chair had concerns

regarding the quality of Prof. Talpin’s instruction and that her student class evaluation for the

prior year had been low. Id. at 52. Prof. Dorfsman’s reliance on the student class evaluations as

a benchmark for lecturer ability reflected UNH’s practice of having students evaluate their

instructors in writing at the end of each semester. Id. at 48-49. Prof. Berenguier went back to

review Prof. Talpin’s student evaluations and she found them satisfactory. App. to Appellants’

Br. at 51.

Prof. Dorfsman voiced the same concerns regarding Prof. Talpin’s teaching ability to

Associate Dean Ted Kirkpatrick (“Dean Kirkpatrick”)3 in a meeting on December 4, 2012. Id. at

52. At that meeting, he also told Dean Kirkpatrick that he thought retaining Prof. Talpin was

unfair when a lecturer from the prior year had been forced to leave the university. Id. Prof.

Dorfsman advocated for delaying Prof. Talpin’s contract decision based on concerns regarding

3 Dean Kirkpatrick is erroneously referred to as “Dean of the Department” in the Decision. See App. to Appellants’ Br. at 50. Dean Kirkpatrick is the Associate Dean of UNH’s COLA.

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her student evaluation. Id. at 51-52. Despite Prof. Dorfsman’s objections, Dean Kirkpatrick

informed him that Prof. Talpin’s contract likely would be renewed. Id. at 52.

On December 5, 2012, after his meeting with Dean Kirkpatrick, Prof. Dorfsman returned

to the LLC offices after regular working hours while “angry and frustrated” that Prof. Talpin’s

contract appeared to be destined for renewal. Id. at 53. Once there, he went to the file drawer

that held the student evaluations and he located Prof. Talpin’s student class evaluations. App. to

Appellants’ Br. at 53. He then proceeded to erase the highest scores and remark them with lower

scores, lowering Prof. Talpin’s overall ratings to below department standards. Id. at 53, 58.

Prof. Dorfsman then replaced the evaluations into their envelopes and put them back in the file

drawer where they belonged. Id. at 53. From there, the evaluations would be taken to be

processed centrally by UNH before being returned with tabulations to the department chairs and

the lecturers themselves. Id. at 49.

Unbeknownst to Prof. Dorfsman at the time he tampered with her scores, Prof. Talpin

had already requested that Prof. Berenguier review her evaluations after they arrived in the

department office from her classes. Id. at 53. With foresight that proved prescient, Prof. Talpin

made her request of Prof. Berenguier precisely because she was worried that Prof. Dorfsman

would tamper with her evaluations. Id. at 54. Prof. Berenguier agreed to look at the evaluations,

and she had an assistant make copies of them. App. to Appellants’ Br. at 54. On December 7,

2012, in a conversation in which she again advocated for the extension of Prof. Talpin’s contract,

Prof. Berenguier told Prof. Dorfsman that Prof. Talpin’s evaluations looked “fine” to her,

indicating to Prof. Dorfsman that she had seen the originals, although she was unaware of his

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tampering at that time (as noted below, Prof. Berenguier did not learn of Prof. Dorfsman

misconduct until January 31, 2013). Id. at 54, 56. On December 20, 2012, Dean Kirkpatrick

notified Prof. Dorfsman that Prof. Talpin’s contract would be renewed for a three-year term. Id.

at 55. About one month later, on January 31, 2013, Prof. Dorfsman confessed to Prof.

Berenguier that he had altered Prof. Talpin’s evaluations. Id. at 56. Shortly after his admission,

Prof. Dorfsman notified the COLA Dean’s Office of his misconduct, and the administration

initiated the investigation that lead to Prof. Dorfsman’s notice of dismissal. Id. at 56-57.

Having made the above factual findings and evaluating several mitigating factors such as

Prof. Dorfsman’s recent loss of his sister in the assessment, the arbitrator concluded that Prof.

Dorfsman had committed an act of moral turpitude. CBA article 14.2.1 provides “just cause

shall encompass professional incompetence, deliberate neglect of duty or moral turpitude.” See

id. at 104. Specifically, the arbitrator held:

Although the term “moral turpitude” is not susceptible to a precise definition, it must be concluded that Professor Dorfsman’s conduct clearly and convincingly amounted to an act of moral turpitude. Specifically, this was a deceitful act that directly and specifically related to the academic community. Professor Dorfsman altered the student evaluations of Lecturer Emilie Talpin; this was [an] intentional act of deception. Although the changes in the evaluations may not have actually had any impact on continued employment, it was an act that could have had consequences for Ms. Talpin’[s] status in the academic community. Alternatively, even if it was not intended to harm Ms. Talpin, Professor Dorfsman admitted that it was done to get Professor Berenguier “off her high horse”. This was an act of dishonesty and deception that undermined not only the Department but also the entire academic community. Provost Aber was precise in his statement that Professor Dorfsman’s:

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Conduct constituted moral turpitude and “evinces a gross disregard for the rights of others, is a clear and intentional breach of duties owed to others and to the University by virtue of employment at UNH and membership in the profession, in which such an act is considered contrary to the accepted and expected rules of moral behavior, justice, or honesty, and evokes condemnation.[”]

App. to Appellants’ Br. at 34-35 (emphasis added).

After confirming that Prof. Dorfsman committed an act of moral turpitude, however, the

arbitrator went on to apply a typical “just cause” standard even though the CBA provides that

just cause encompasses moral turpitude. Id. at 80. In doing so, the arbitrator ignored and/or

nullified the parties’ agreement that an act of moral turpitude constituted just cause for dismissal.

See id. at 104. The arbitrator reasoned that, because “the Agreement does not prescribe sanctions

for particular types of misconduct,” he was authorized to fashion his own sanction “based on the

particular circumstances of each case.” Id. He then applied a “reasonableness” standard to the

discipline imposed on Prof. Dorfsman, and concluded that there were enough mitigating

circumstances – Prof. Dorfsman’s personal issues with family illness and depression,4 his

“voluntary” confession of his misconduct to Prof. Berenguier, and the absence of prior

disciplinary action in his employment history – to prevent Prof. Dorfsman’s dismissal and

impose “very serious discipline” of some other nature instead. Id. at 82 (emphasis original).

4 The arbitrator’s conclusion that “there appears to be no dispute that Prof. Dorfsman experienced a particularly acute period of depression during the time in question” is not accurate. App. to Appellants’ Br. at 71. UNH objected without success to the arbitrator’s consideration of testimony and documentation proffered by Prof. Dorfsman regarding his psychiatric evaluation. Id. at 61, fn. 2.

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SUMMARY OF THE ARGUMENT The November 14, 2013 arbitration award exceeds the authority expressly granted to the

arbitrator by the CBA and the decision was therefore correctly vacated on January 30, 2015 by

the New Hampshire Superior Court. The superior court was the appropriate venue in which to

challenge the arbitrator’s decision based on the common law jurisdiction bestowed by RSA

491:7 and RSA 498:1. Although RSA 542:1 provides an alternative recourse that the parties did

not select, that alternate is a parallel track because the statute does not specifically abrogate the

common law jurisdiction. New Hampshire is one of many jurisdictions whose arbitration

statutes work in conjunction with the common law.

According to his own formulation, the issue presented for the arbitrator to decide in this

matter was “whether the University’s decision to dismiss Professor Marco Dorfsman violated the

terms of the party’s [sic] agreement.” App. to Appellants’ Br. at 47. While the arbitrator

directed the parties should confer upon a more appropriate discipline for Prof. Dorfsman within

thirty days, the arbitrator’s decision constituted a final and binding outcome that was ripe for

adjudication because the arbitrator ruled that Prof. Dorfsman’s termination violated the CBA.

That decision made a direct and immediate impact on appellees. Appellees would otherwise be

forced to forfeit their right to appeal the decision because CBA article 9.5.5 requires that appeals

be brought to the superior court within thirty days of the opinion. Id. at 93. Appellees also face

continued hardship by being required by the CBA to pay Prof. Dorfsman’s salary despite his

legitimate discharge until this matter is fully resolved.

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The unambiguous language of the CBA makes it clear that the arbitrator cannot find that

Prof. Dorfsman committed an act of moral turpitude while simultaneously holding that he should

be reinstated for lack of just cause. Article 14.2.1 of the CBA states that a professor cannot be

“subject to dismissal or suspension without pay except for just cause.” Id. at 104. It also states

that just cause “shall encompass professional incompetence, deliberate neglect of duty or moral

turpitude.” Id. (emphasis added). Moral turpitude therefore equates to just cause and where

there is moral turpitude an employee “may be terminated immediately” according to article

14.2.3. Id. The CBA grants the discretion to terminate upon a finding to UNH—not to the

arbitrator. UNH therefore acted appropriately when it terminated Prof. Dorfsman under the

express provisions of the CBA after finding that Prof. Dorfsman committed an act of moral

turpitude.

The arbitrator’s evaluation of the matter should have ended when he agreed with the

finding of moral turpitude. Continuing to fashion his own form of discipline contradicted the

clear CBA article 9.5.4 language that states that an arbitrator “shall not have the authority to add

to, amend, modify, nullify or ignore in any way the provisions of” the CBA. Id. at 92. Because

the arbitrator exceeded his authority, the superior court properly vacated that part of the decision

that required Prof. Dorfsman to be reinstated.

For the foregoing reasons, the Court should uphold the superior court ruling that vacated

the arbitrator’s decision that UNH violated the terms of the CBA, set forth the basis of

jurisdiction for its review, and held that the matter was ripe for adjudication.

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STANDARD OF REVIEW

The interpretation of unambiguous contractual language is a question of law, which this

Court reviews de novo. Found. for Seacoast Health v. Hosp. Corp. of Am., 165 N.H. 168, 172

(2013) (citing Birch Broad v. Capitol Broad Corp., 161 N.H. 192, 196 (2010)). However, “the

interpretation of a CBA is within the province of the arbitrator, subject to certain exception.”

Appeal of Merrimack Cnty., 156 N.H. 35, 40 (2007) (internal citations omitted). Accordingly,

this Court’s inquiry is limited to “[w]hether the arbitrator’s construction of the CBA is to any

extent plausible.” Id.

ARGUMENT

I. The Superior Court Had Common Law Jurisdiction to Hear the Underlying Appeal Because RSA 542 Does Not Specifically Abrogate Common Law Right to Judicial Review

The New Hampshire Superior Courts are courts of general jurisdiction “in whose favor

the presumption will be that nothing will be intended to be out of its jurisdiction which is not

alleged and shown to be so.” Flanders v. Atkinson, 18 N.H. 167, 168 (1846); see also RSA

491:7 (“The superior court shall take cognizance of civil actions and pleas . . . and of all other

proceedings and matters cognizable therein for which other special provision is not made.”); Rau

v. N.H. Div. of Welfare, 115 N.H. 156 (1975) (noting superior court “shall take cognizance . . . of

suits in equity [when] there is not a plain, adequate and complete remedy at law . . . .”) (citing

RSA 491:7 (Supp. 1973) now RSA 498:1 (granting superior court “powers of equity” in “cases

in which there is not a plain, adequate and complete remedy at law, and in all other cases

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cognizable in a court of equity . . . . “)). A party must demonstrate that the matter complained of

is expressly excluded from the superior court’s jurisdiction to overcome the presumption in favor

of jurisdiction. See, e.g., Gray v. Seidel, 143 N.H. 327 (1999) (holding superior court held

jurisdiction despite statute empowering State Wetlands Board with authority to regulate docks).

The New Hampshire superior court has entertained jurisdiction at common law to review

decisions and issuers arising from private arbitrations entered into by agreement of the parties.

See, e.g., Davis v. Bradford, 58 N.H 476 (1878) (enforcing common law arbitration agreement);

Ford v. Burleigh, 60 N.H. 278 (1880) (holding arbitrators did not exceed authority in deciding

award); Parker v. Dorsey, 68 N.H. 181 (1984) (holding definite private arbitration award final);

(Horne v. Hutchins, 71 N.H. 128 (1901) (affirming validity of arbitration award between private

parties); Brampton Woolen Co. v. Local Union 112, 95 N.H. 255 (1948) (finding superior court

possesses jurisdiction to determine whether private sector employer and union dispute is

arbitrable). Notably, Brampton Woolen Co. was decided in 1948—nearly 20 years after the

original version of RSA 542:1 was promulgated and three years after a proposed change was

accepted that reflects the statute’s current format.

Although several jurisdictions have arbitration statutes, those arbitration statutes do not

necessarily preempt common law and they coexist with the common law in a majority of states.

See, e.g., Bennett v. Meader, 545 A.2d, 553, 555 (Conn. 1988) (noting arbitration statutes and

common law coexistence in Minnesota, New Jersey, New Mexico, North Carolina, South

Carolina, and Pennsylvania); Heffner v. Jacobson, 498 A.2d 766 (N.J. 1985) (following majority

view that arbitration statutes have not abolished common law arbitration); World Architects &

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Eng’rs v. Strat, 713 N.W.2d 750 (Mich. 2006) (holding state arbitration statute did not preempt

common law, nor did it show intent to abrogate common law arbitration); Collins v. Tex Mall,

L.P., 297 S.W.3d 409 (2d. Ct. Appeals 2009) (finding common law and Texas arbitration statute

coexist as dual system of arbitration and arbitration statute cumulative of common law).

Determining whether a statute abolishes a common law right begins with strictly

interpreting the statute. Sheehan v. N.H. Dep’t of Resources & Econ. Dev., 164 N.H. 365, 368

(2010) (quoting Estate of Gordon-Couture v. Brown, 125 N.H. 265, 266 (2005)). “Where a

statute may abolish a common law right, there is a presumption that the legislature has no such

purpose. If a common law right is to be taken away, it must be expressed clearly by the

legislature.” Id.; see also Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 372 (2012)

(finding RSA 483-A did not intend to eliminate property owner’s common law right to bring

action for violation of riparian rights). When interpreting a statute to determine whether it

abrogates a common law right, the court will “ascribe the plain and ordinary meaning of the

words used [and] interpret legislative intent from the statute as written.” Frost, 163 at 374. The

court should “also interpret a statute in the context of the overall statutory scheme and not in

isolation.” Id.

A. RSA 542 Does Not Expressly Abrogate the Common Law Right to Judicial Review of the Arbitrator’s Decision

Appellants contend that the superior court did not have jurisdiction to review the

arbitrator’s decision based on their reading of RSA 542:1. This statute specifically exempts from

its purview “any arbitration agreement between employers and employees, or between employers

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and associations of employees,” although parties may opt in to the statutory process if they

desire. RSA 542:1. No provision in Chapter 542, however, states that the superior court may

hear an appeal of an arbitration award “only if the arbitration agreement invokes the statute.”

App. to Appellants’ Br. at 176; see generally RSA 542. Rather, the statute serves to prescribe

procedural and substantive law to govern arbitrations that are within the state’s purview.5

Here, instead of selecting to operate under RSA 542’s express provisions, the parties set

forth a detailed and comprehensive framework for arbitration in the CBA. See id. at 167-87

(agreeing CBA evidenced intention of operating under detailed framework). CBA Art. 9.5, et

seq., governs the selection of the arbitrator, prehearing discovery and evidence, scope of the

hearing, limits on the arbitrator’s authority and power to issue awards, expedited arbitration, and

the appeal process invoked for the Court’s review of the present award. Id. at 92-93. CBA Art.

9.5.5 permits either party to appeal the arbitrator’s decision to the superior court and specifies the

grounds on which an appeal may be taken. Id. at 93. This language is similar to that of RSA

542:8 except that the CBA requires an appeal to occur within 30 days as opposed to within one

year. Id.; RSA 542:8.

Appellants note that jurisdiction may not be created only upon agreement between

parties. See Appellants’ Br. at 9. Although stating that parties may appeal the arbitrator’s

decision to the superior court does not automatically bestow the right upon the court to review

the matter, it does, however, reflect the parties’ intention to pursue the common law right that

runs parallel to Chapter 542. Absent express language in Chapter 542 abrogating that right, the

5 A review of the legislative history pertaining to RSA 542, and specifically RSA 542:1, did not reveal any intention of those introducing the bill and its later amendment in 1945 that reflects the current version of the statute.

18 {C1334093.1 }

superior court holds jurisdiction to review private arbitration as the superior court ruled in this

matter. Contrary to appellants’ argument, the existence of common law jurisdiction over private

employment arbitrations does not “erase the requirements of RSA 542 from the law.”

Appellants’ Br. at 10. Rather, as in many venues, RSA 542 and the common law run parallel to

each other, coexisting without “creating havoc.” Id. Accordingly, the superior court properly

held that it had jurisdiction to review the arbitrator’s decision and this Court should affirm the

superior court’s decision.

B. The Public Employee Labor Relations Board Does Not Have Jurisdiction over a Case That Does Not Allege an Unfair Labor Practice

Appellants incorrectly argue in a footnote that the Public Employee Labor Relations

Board (“PELRB”) was the appropriate venue in which to challenge the arbitrator’s decision. See

Appellants’ Br. at 11, fn. 13. “The PELRB 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.” Board of Trustees v. Keen State College Educ. Ass’n, 126 N.H. 339, 342 (1985)

(citing Appeal of Internat’l Assoc. of Firefighters, 123 N.H. 404, 409 (1983)); see also RSA 273-

A:5 (listing prohibited unfair labor practices). The PELRB does not generally have jurisdiction

to interpret to CBAs. Appeal of Kennedy, 162 N.H. 109, 114-15 (2011). The PELRB therefore

did not have jurisdiction to review the arbitration decision and appellees appropriately sought

review of the arbitration decision by the superior court.

19 {C1334093.1 }

II. The Arbitrator’s November 14, 2013 Decision Constituted a “Final and Binding Decision” That Was Ripe for Adjudication

On November 14, 2013, the arbitrator provided the parties with a final and binding

decision that UNH violated the CBA terms when it terminated Prof. Dorfsman despite his act of

moral turpitude. See App. to Appellants’ Br. at 38; see also id. at 92 (stating arbitrator’s decision

to sustain grievance in whole or part is “final and binding” unless decision appealed). This

determination created a decision ripe for adjudication.

The New Hampshire Supreme Court has not yet formally adopted a test for ripeness,

which “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 State Emps.

Ass’n of N.H., Inc., 142 N.H. 874, 878 (1998) (citing Dep’t of Enviro. v. Chemical Waste, 643

N.E.2d 331, 336 (Ind. 1994)). However, the Court has 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.” Id. The

first prong provides that “a claim is fit for decision if the issues raised are primarily legal, [the

claim does] not require further factual development, and the challenged action is final.” State v.

Fischer, 152 N.H. 205, 210 (2005), superseded on other grounds, 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). Appellees’ claims on

appeal to the superior court met this test.

20 {C1334093.1 }

The question as to whether the arbitrator exceeded his authority under the CBA is a legal

question because “collective bargaining agreements are construed in the same manner as other

contracts” and “[t]he interpretation of a contract is a question of law.” Lassonde v. Stanton, 157

N.H. 582, 588 (2008); see also Appeal of Lincoln-Woodstock Co-op School Dist., 143 N.H. 598,

601 (1999) (noting bargaining agreement treated as other contracts). This matter does not

require additional factual development as the question at issue involves the arbitrator’s decision

and because the underlying facts giving rise to the arbitration are not in dispute. The arbitrator’s

decision was final pursuant to the terms of the CBA at 9.5.4. According to his decision, the issue

the arbitrator set to decide was “whether the University’s decision to dismiss Professor Marco

Dorfsman violated the terms of the party’s agreement.” App. to Appellants’ Br. at 47. Although

the arbitrator recommended that the parties discuss “appropriate sanctions” for Prof. Dorfsman

and then to return to him should the parties not reach an agreement within thirty days, his finding

that Prof. Dorfsman was terminated without just cause constituted a specific decision. See id. at

38. Accordingly, the first prong was satisfied.

Unlike the circumstances found in Appeal of State Employees’ Association of New

Hampshire, Inc., the appellees’ allegations were not based on the anticipation of an ultra vires

act but rather focused on the fact that the arbitrator exceeded his authority when he nullified the

just cause provision of the CBA to sustain Prof. Dorfsman’s grievance. In Appeal of State

Employees’ Association of New Hampshire, the Court determined that a union’s contentions

were not ripe for judicial review because the commissioner had not yet exercised his authority in

a matter that violated the collective bargaining agreement. 142 N.H. at 878. However, in this

21 {C1334093.1 }

matter, the facts mirror the United States Supreme Court decision in Stolt-Nielson v. Animalfeeds

Int’l Corp., 559 U.S. 662 (2010). In Stolt-Nielson, the petitioners sought to vacate an arbitration

panel decision that held that the parties’ contract permitted class arbitration of the subject claims.

Id. The Court held that the matter was ripe for adjudication because: 1) the arbitration panel’s

award means that petitioners must now submit to class determination proceedings before

arbitrators who, if petitioners are correct, have no authority to require class arbitration absent the

parties’ agreement to resolve their disputes on that basis” and 2) “should petitioners refuse to

proceed with what they maintain is essentially an ultra vires proceeding, they would almost

certainly be subject to a petition to compel arbitration under [the Federal Arbitration Act].” Id.

(citations omitted).

As with the petitioners in Stolt-Nielson, appellees contend that the arbitrator exceeded his

authority when he effectively ordered reinstatement despite his finding that Prof. Dorfsman

committed an act of moral turpitude. Any further arbitration proceeding to determine the terms

of reinstatement following the ultra vires act of ordering reinstatement would force appellees to

appear before an arbitrator who had no authority to require the reinstatement in the first place.

Similarly, if appellees refused to participate in further ulta vires proceedings, they would almost

certainly be subject to a petition to compel arbitration pursuant to RSA 273-A:5b(h); Appeal of

Belknap Cnty. Comm’rs, 146 N.H. 757, 781 (2001) (holding refusal to arbitrate may be litigated

under RSA 273-A as breach of collective bargaining agreement). These realities satisfy the

second-prong of the ripeness test articulated in Fischer.

22 {C1334093.1 }

Assessing ripeness also involves determining the hardships appellees would face in the

event this matter was not heard by the superior court. First, appellees would be subject to

additional financial hardship because they are required by CBA article 14.2.2 to continue paying

Prof. Dorfsman his normal salary until this matter is finally resolved. See App. To Appellants’

Br. at 104. Second, presuming that the arbitrator exceeded his authority and that the arbitrator

was allowed to create his own penalty for Prof. Dorfsman, then the appellees would be subject to

a second unauthorized order. Third, CBA article 9.5.5 provides that the parties have thirty days

in which to appeal a final arbitration decision to the superior court. See App. to Appellants’ Br.

at 93. (“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 arbitrator’s decision, however, stated that the parties should “attempt to agree upon

the appropriate level of discipline for Professor Dorfsman’s serious misconduct, and if no

agreement is reached within thirty days of the date of this decision, the matter will then be

submitted back to this Arbitrator for the imposition of discipline.” App. to Appellants’ Br. at 82.

Under these circumstances, appellees were required to seek judicial review of the decision,

which sustains the grievance, or the appellees would have forfeited their right to appeal the

arbitrator’s finding of no just cause. These direct hardships further support that this matter was

ripe for judicial review.

23 {C1334093.1 }

III. The Arbitrator Exceeded His Authority by Awarding Reinstatement When He Found Prof. Dorfsman Engaged in Moral Turpitude But Found No Just Cause for Termination

The arbitrator exceeded his authority by simultaneously holding that UNH’s discharge of

Prof. Dorfsman was without just cause but that Prof. Dorfsman committed an act of moral

turpitude. This decision contradicts the parties’ CBA. An arbitrator’s authority is derived solely

from the parties’ agreement to arbitrate found in the collective bargaining agreement. Poland

Springs Corp. v. United Food & Com. Wkrs. Int’l Union AFL-CIO-CLC, Local 1445, 314 F.3d

29, 33 (1st Cir. 2002), cert. denied, 540 U.S. 818 (2003). The arbitrator “violates his obligation

to the parties if he substitutes his own brand of industrial justice for what has been agreed to by

the parties.” Id.; see also Appeal of Bd. of Tr. of Univ. Sys. of N.H. for Keene State Coll., 129

N.H. 632, 635 (1987) (finding arbitrator’s jurisdiction over parties and subject matter contingent

upon voluntary agreement of the parties). Accordingly, the Court must “look to the language of

the CBA to determine the dispute resolution process agreed upon by the parties.” Id.

Here, the CBA confers the following authority on arbitrators in articles 9.5.3 and 9.5.4:

Unless there is mutual agreement by all parties to modify the scope of the hearing, the issue to be addressed by the Arbitrator shall be restricted to the matter which was the subject of Step One of the Grievance Procedure. In the event that the Arbitrator must make an award, the decision of the Arbitrator will be restricted to whether or not there has occurred a violation of the Agreement. If a violation is found, the Arbitrator shall specify the remedy in accordance with the terms of this Agreement. The Arbitrator shall have the authority to decide the relevance of documentary evidence and/or testimony. . . . A decision of the Arbitrator on any issue properly before him or her shall be final and binding upon the University, the University System, the

24 {C1334093.1 }

Association, and all bargaining unit members affected. The Arbitrator’s decision-making authority shall be limited to determining whether the provision(s) of this Agreement have been violated, misinterpreted or misapplies and if so, to provide a remedy that makes the grievant whole. The Arbitrator shall not have the authority to add to, amend, modify, nullify or ignore in any way the provision(s) of this Agreement and shall not make an award which would, in effect, grant the bargaining unit member(s) any right or benefit which was not achieved through the bargaining process.

App. To Appellants’ Br. at 92. The arbitrator violated this authority when he found that Prof.

Dorfsman had committed an act of moral turpitude but found no just cause contrary to the CBA’s

terms.

Courts vacate arbitrator decisions that overturn an employer’s disciplinary decision where

the contract reserves that decision to the employer’s discretion. In Poland Spring Corp., the First

Circuit Court of Appeals reviewed an arbitrator’s decision issued under a collective bargaining

agreement that provided: “just cause for discharge shall include, but not be limited to, the

following . . . 8. Insubordination . . . .” 314 F.3d at 31. The arbitrator found that the discharged

employee had engaged in insubordination but went on to determine that the level of the

discharged employee’s act of insubordination nonetheless did not justify his discharge. Id. at 32-

33. The court disagreed with this finding:

Upon reaching the conclusion that [the discharged employee’s] conduct was insubordinate, the arbitrator was “barred from further inquiry because such additional probing constituted ‘ignoring the plain language of the contract.’” This Court has long held that once 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 . . . [T]he plain language of [the Collective bargaining agreement] left nothing to the arbitrator’s discretion

25 {C1334093.1 }

except to determine whether or not [the discharged employee’s] conduct was insubordinate.

Id. at 34-45 (internal citations omitted) (emphasis added).

Similarly, in Georgia-Pacific Corp. v. Local 27 United Paperworkers Int’l Union, 864

F.2d 940 (1st Cir. 1988), the First Circuit held that a collective bargaining agreement including

both a specific ground for termination for dishonesty and a general just cause standard created

two independent grounds for termination. One was an enumerated offense (dishonesty) that by

agreement constituted per se just cause and one was just cause under a just cause analysis. Id.at

944. The First Circuit found that the arbitrator’s decision contradicted the plain and

unambiguous meaning of the collective bargaining agreement that provided that “once

dishonesty is established, no other showing is required. In essence, dishonesty, as a ground for

immediate discharge, is per se just cause.” Id. at 945-46. The court emphasized in its opinion

that an “arbitrator does not have unfettered discretion. He may not impose a remedy which

directly contradicts the express language of the collective bargaining agreement.” Id. at 945

(quoting Bruno’s Inc. v. United Food & Com. Wkrs. Int’l Union, Local 1657, 858 F.2d 1529,

1531 (11th Cir. 1988)).

The logic behind prohibiting an arbitrator from fashioning his own remedy is that parties

bargain for specific terms in their agreements “to take discretion away from arbitrators charged

with enforcing the collective bargaining agreement.” Poland Springs Corp. 314 F.3d at 35. The

First Circuit is not alone in limiting arbitrators’ authority to review the level of discipline

imposed under certain circumstances. See, e.g., Merrimack Cnty., 156 N.H. at 51 (dissenting

26 {C1334093.1 }

opinion listing cases from jurisdictions including Eastern District of Michigan, Ohio, New

Jersey, Rhode Island, and Fifth, Sixth and Eleventh Circuit Court of Appeals).

This matter parallels the findings in Poland Springs Corp. and Georgia-Pacific Corp.,

but it is distinguishable from Merrimack County in which the New Hampshire Supreme Court

interpreted a collective bargaining agreement that contained ambiguous terms. In that case, the

arbitrator’s decision was upheld because the collective bargaining agreement did not define

specific instances of just cause. 156 N.H. at 41. Because the agreement fell silent on this issue,

the arbitrator was conferred with the discretion to decide what constituted just cause. Id.

(internal citations omitted).

Here, and unlike Merrimack County, the CBA expressly provides that moral turpitude

constitutes just cause for dismissal or suspension without pay. See App. to Appellants’ Br. at

104. The parties specifically selected a just cause provision using the word “shall”: “Just cause

shall encompass . . . moral turpitude.” Id. (emphasis added). Use of the word shall, as opposed

to may, unequivocally established just cause for either termination or suspension without pay

upon a finding of moral turpitude. An arbitrator therefore cannot find for the existence of moral

turpitude and against the existence of just cause. See, e.g., City of E. Providence v. United

Steelworkers, 925 A.2d 246 (R.I. 2007) (holding arbitrator irrationally exceeded authority by

finding just cause for termination yet ordering reinstatement). Accordingly, pursuant to the

express terms of the CBA article 14.2.2, Prof. Dorfsman was dismissed for just cause.

Given this clear framework, the arbitrator should have ended his analysis when he agreed

with UNH’s determination that Prof. Dorfsman committed an act of moral turpitude. By going

27 {C1334093.1 }

beyond that inquiry, the arbitrator ignored the CBA’s definition of just cause in article 14.2.1 and

went on to weigh details of Prof. Dorfsman’s employment history as well as recent family

matters that caused him emotional distress in a traditional just cause analysis. See App. to

Appellants’ Br. at 79-82. The just cause analysis was unnecessary and his “additional probing

constituted ‘ignoring the plain language of the contract.” Georgia-Pacific Corp., 864 F.2d at 945

(internal citations omitted).

Appellants look to CBA article 14.2.3. and the use of the word “may” to argue that “the

CBA does not tie the hands of UNH as far as the sanction to be imposed after a finding of moral

turpitude.” Appellants’ Br. at 13-14. The arbitrator also erroneously interpreted the word “may”

in CBA article 14.2.3 to authorize him to revisit whether appellees established just cause for

termination. In doing so, both the appellants and the arbitrator conflate the discretion that UNH

officials possessed during the grievance process to weigh mitigating factors when determining

what discipline would be appropriate with what discretion the arbitrator possessed when

reviewing UNH’s decision. Id. Article 14.2.3 permits, but does not mandate, that UNH

terminates a professor upon a finding of moral turpitude. Regardless of whether this language is

permissive or mandatory, however, the decision was for UNH to make should UNH find that

Prof. Dorfsman committed an act of moral turpitude. The fact that “may” is used did not mean

that the arbitrator had the discretion to override UNH’s choice of discipline.

The incompatibility of the arbitrator’s construction with the CBA language is further

demonstrated by the clear meaning of article 14.2.1. This article begins by stating that a

professor “shall not be subject to dismissal or suspension without pay except for just cause” and

28 {C1334093.1 }

that “[j]ust cause shall encompass professional incompetence, deliberate neglect of duty and

moral turpitude.” App. to Appellants’ Br. at 104. In order to reconcile his finding that Prof.

Dorfsman committed moral turpitude but that there was not just cause for his termination, the

arbitrator must have ignored the latter part of article 4.2.1. Article 9.5.4 specifically bars an

arbitrator from nullifying or ignoring any contractual provision by the express terms of the CBA.

Therefore, as the superior court found, the arbitrator exceeded the authority the CBA granted to

him when he awarded reinstatement to Prof. Dorfsman. This court should therefore affirm the

superior court’s January 30, 2015 ruling vacating that portion of the arbitrator’s award that

required reinstating Prof. Dorfsman.

CONCLUSION

For the reasons stated, the University of New Hampshire Board of Trustees and the

University of New Hampshire respectfully request that this Honorable Court affirm the result

reached by the Superior Court.

29 {C1334093.1 }