Supreme Judicial Court of Maine
Decided: April 30, 1973
CITY OF BIDDEFORD By its BOARD OF EDUCATION
v.
BIDDEFORD TEACHERS ASSOCIATION et al.
BIDDEFORD TEACHERS ASSOCIATION
v.
BOARD OF EDUCATION OF CITY OF BIDDEFORD et al.
Before DUFRESNE, C.J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and
ARCHIBALD, JJ.
WEATHERBEE, Justice.
[/389]
These two complaints necessitate our first examination of the provisions of
the Municipal Employees Labor Relations Law, 26 M.R.S.A. Chap. 9-A, which was
enacted by the Maine Legislature in 1969. The complaints direct our attention
only to the application of the statute to teachers in the public schools.
In the fall of 1970 the Board of Education of the City of Biddeford and the
representatives of the Biddeford Teachers Association entered into negotiations
in an attempt to effect a contract for the professional services of teachers in
the Biddeford public schools for the school year 1971-1972.[fn]1 When the Board
and the Association were unable to reach an agreement, the fact-finding
procedures provided in section 965(3) were called into play but they proved
unsuccessful. Finally, in August of 1971 the parties resorted to the
arbitration process found in section 965(4).
The three arbitrators held a hearing on the various provisions of the
proposed contract which were in dispute on September 22 and 23, 1971. Both
sides were given opportunity to offer testimony and documentary evidence and to
present argument on the disputed issues. Later, on November 17, 1971 the
arbitration panel issued a unanimous decision in which it made findings and
determinations as to disputed sections and directed the parties to enter into a
written agreement (retroactive to September 1, 1971) which included each of
their determinations.
The Board refused to enter into the agreement and on December 13, 1971 the
Association brought an 80B complaint against the Board and the Superintendent of
Schools asking that the Defendants be ordered to comply with the determination
of the arbitration panel and enjoined from continuing to refuse to do so.
On December 14, 1971 the Board brought an 80B complaint against the
Association (and the two then surviving arbitrators) alleging that the award
contained erroneous rulings of law and fact and was invalidated by partiality
of an arbitrator and by prejudicial conduct of the hearing.
The two actions were consolidated for appeal and, upon the parties'
agreement, the consolidated actions were ordered reported to us upon the
complaints, answers and stipulation "for such final decision as the rights of
the parties may require". The stipulation presents for our study the 1970-1971
contract, the 1971-1972 contract, the Determinations and Recommendations of the
Arbitration Tribunal and the agreed fact that "David W. Bustin [one of the
arbitrators] is employed full time by the Maine Teachers Association with which
the Biddeford Teachers Association is af-
____________________
1. The parties had succeeded in negotiating a contract for the year 1970-1971.
_______________________________________________________________________________
[/390]
filiated and participated as advisor on behalf of the latter association at
various times in the bargaining process prior to the arbitration."
The purpose of the Municipal Public Employees Labor Relations Law is stated
by 26 M.R.S.A. 961 as follows:
"It is declared to be the public policy of this State and it is the
purpose of this chapter to promote the improvement of the
relationship between public employers and their employees by providing
a uniform basis for recognizing the right of public employees to join
labor organizations of their own choosing and to be represented by
such organizations in collective bargaining for terms and conditions
of employment."
Unquestionably the Board of Education of the City of Biddeford is a public
employer as defined by the Act, and the Association is composed of teachers in
the Biddeford public schools who are among the public employees who are entitled
to the benefit of the Act. The authority of the Association to represent the
teachers as their chosen bargaining agent is not disputed.
The Act makes it the obligation of the public employer and the bargaining
agent to meet and bargain collectively and provides a four-step procedure
consisting of negotiation, mediation (when jointly requested), fact finding and
arbitration.[fn]2 The parties are first obligated to negotiate in good faith
concerning "wages, hours, working conditions and contract grievance arbitration"
-- with the exception --
". . . [That] public employers of teachers shall meet and consult
but not negotiate with respect to educational policies for the
purpose of this paragraph, educational policies shall not include
wages, hours, working conditions or contract grievance arbitration;"
[fn]3
Secondly, if the parties are unable to agree after negotiation they may
jointly agree upon mediation procedures. Thirdly, if mediation procedures are
omitted or are unsuccessful, either one or both may request fact-finding and
the parties are then obligated to present their contending positions to the
fact-finding board which will, after hearing, submit its findings to the
parties. If a 30-day period of further effort to resolve the controversy is
unsuccessful either party may make the findings public. Fifteen more days are
then allowed to permit a further good faith effort to resolve the controversy.
Fourth, and lastly, if, after another ten days they have not agreed as to an
arbitration procedure, either party may request in writing that their
differences shall be arbitrated in accordance with the procedure described
in subsection 4.
In brief, this procedure requires each party to choose an arbitrator and the
two so chosen shall name a "neutral" arbitrator. The three arbitrators shall
then proceed to hear the matter. If the subject of the controversy has been
salaries, pensions or insurance, the arbitrators shall recommend terms of
settlement which are advisory only and may make findings of fact. As to other
matters in dispute the arbitrators shall make determinations which are binding
upon the parties and "the parties will enter into an agreement or take whatever
other action that may be appropriate to carry out and effectuate such binding
determinations". The determinations are subject to review in accordance with
M.R.C.P., Rule 80B but, in the absence of fraud, the arbitrators' decisions upon
questions of fact are final.[fn]4
____________________
2. The Act prohibits public employees from engaging in a strike, work
stoppage, slowdown or blacklisting.
3. We consider that a printing error doubtless distorted the legislative
language here and that the phrase "for the purpose of this paragraph" was
intended to be the beginning of a separate sentence.
4. Within the areas covered by the Act either party is entitled to require
the other to participate in both interest arbitration (that is, concerning
disputes in-
_______________________________________________________________________________
[/391]
PART I
The Act obviously represents a fresh approach to municipal public employee
labor relations problems and enters an area as yet unexplored here. In the
field of education, particularly, it appears to clash with traditional concepts
of school control and management. As a result, members of the Board here -- as
several school boards in other jurisdictions have done -- protest that if the
members entered into the proposed contract, as the arbitration award has ordered
them to do -- they would be surrendering their authority as public officers to
persons who are in no way responsible to the electorate.
Traditionally, the control of the public schools has been entrusted to the
local school boards since our State's earliest days. When our Constitution was
adopted on October 29, 1819, Article VIII read:
"A general diffusion of the advantages of education being essential
to the preservation of the rights and liberties of the people; to
promote this important object, the Legislature are authorized, and it
shall be their duty to require, the several towns to make suitable
provision, at their own expense, for the support and maintenance of
public schools; . . ."
The first Legislature promptly acted upon this directive ( P.L. 1821 Chap.
117) by (sec. 1) requiring the various towns to raise money for maintenance of
public schools[fn]5 and (sec. 3) by giving local school committees responsibility
as to the qualification of teachers, the books to be used and the conduct of the
local educational process.[fn]6 Although the nature of the educational units
changed with the growth of our communities through the years,[fn]7 the
responsibility for the manage-
___________________
volved in the making of the employment contract) and grievance
arbitration (concerning disputes arising out of employment under the
contract).
5. "Sec. 1. Be it enacted by the Senate and House of Representatives, in
Legislature assembled, That every town and plantation shall annually raise
and expend for the maintenance and support of schools therein, to be taught
by school masters duly qualified, a sum of money including the income of any
incorporated school fund not less than forty cents for each inhabitant, the
number to be computed according to the next preceding census of the State by
which the representation thereof has been apportioned: Provided, That a part,
not exceeding one third of the money allotted to any district, may, if the
district so determine, be applied to the support of a school taught by a
mistress, or when the sum so allotted to a district in any year, shall not
exceed thirty five dollars, the whole may be expended in the same manner."
6. "Sec. 3. Be it further enacted, That there shall be chosen by ballot at
the annual meeting, in each town and plantation, a superintending school
committee, consisting of not less than three nor more than seven persons,
whose duty it shall be, to examine school masters, and mistresses, proposing
to teach school therein. And it shall be the duty of such committee to visit
and inspect the schools in their respective towns and plantations, and
inquire into the regulations and discipline thereof, and the proficiency of
the scholars therein, and use their influence and best endeavors, that the
youth in the several districts regularly attend the schools; and the said
committee shall have the power to dismiss any school master or mistress who
shall be found incapable, or unfit to teach any school, notwithstanding
their having procured the requisite certificates; but the towns and
plantations shall be bound to pay such instructors for the time they have
been employed; and the superintending committee shall have power to direct
what school books shall be used in the respective schools; and at the
meeting for the choice of town officers, there shall be chosen an agent for
each school district, whose duty it shall be, to hire the school masters, or
mistresses for their respective districts, and to provide the necessary fuel
and utensils for the schools. . . ."
7. During the early history of our state, our statutes permitted areas within
a town or areas composed of parts of two or more towns to form semi-autonomous
school districts and to choose school agents and share with the town
superintending school committees the responsibility for main-
_______________________________________________________________________________
[/392]
ment of local public educational systems has remained, substantially unchanged, in
the local school authorities --primarily the local superintending school
committees[fn]8 -- with the exception of two developments. The Legislature,
having originally delegated to local school bodies the entire responsibility for
the conduct of public primary and secondary education, soon began taking back
selected portions of this authority by enacting specific parcels of legislation
which imposed various requirements upon the conduct of the local education
process. Examples of this are found today in statutes which create certain
school holidays,[fn]9 establish a minimum number of sessions,[fn]10 require
that study in hygiene be offered,[fn]11 that health, safety and physical
education studies be taught[fn]12 and that the school committees appoint a
school physician, etc.[fn]13 In 1868 the Legislature made a single major inroad
into local school committee authority when it created the office of State
Superintendent of Schools and empowered that officer "to exercise a general
supervision of all the public schools and to advise and direct the town
committees in the discharge of their duties."[fn]14 Later, this official became
the Commissioner of Education and, under the reorganization of 1971, became the
Commissioner of Education and Cultural Resources.[fn]15 He still retains
supervisory powers, now somewhat more detailed, over the conduct of local
education. 20 M.R.S.A. 102, subsections 1 and 7.[fn]16
____________________
tenance of the public schools. See, for example, R.S.1871, Chap. 11, 16-51.
For a time, towns were permitted to elect a supervisor of schools in lieu of a
superintending school committee. R.S.1871, Chap. 11, 10. P.L.1897, Chap.
332, 1 first required superintending school committees to choose or towns to
elect superintendents of schools who succeeded to some administrative duties
formerly performed by the superintending school committees.
For a brief period -- 1871 to 1872 -- our statutes directed the Governor
to appoint for each county a county supervisor to public schools who "shall
act as the official advisor and constant assistant to the school officers and
teachers in his county. R.S.1871, Chap. 11, 75-80. This office was
abolished by P.L.1872, Chap. 67.
8. The members of the Superintending School Committee are elected officials
(20 M.R.S.A. 471) and their statutory duties include (20 M.R.S.A. 473):
"1. Management of schools. The management of the schools and the
custody and care . . . of all school property in their administrative
units . . .
2. General course of instruction; textbooks. [They shall]
[direct] the general course of instruction and approve a uniform
system of textbooks . . ."
They employ the Superintendent of Schools (20 M.R.S.A. 155) and approve or
disapprove of his nomination of teachers. 20 M.R.S.A. 161(5). They may,
after notice and hearing, dismiss a teacher for unfitness. 20 M.R.S.A.
473(4). Although we have spoken in terms of powers of the superintending
school committees, the same principles apply as to directors of School
Administrative Districts (20 M.R.S.A. 219), to committees of supervisory
unions (20 M.R.S.A. 153) and to community school committees. 20 M.R.S.A.
356.
9. Now 20 M.R.S.A. 801.
10. Now 20 M.R.S.A. 855.
11. Now 20 M.R.S.A. 473(3).
12. Now 20 M.R.S.A. 1011.
13. Now 20 M.R.S.A. 1131.
14. P.L.1868, Chap. 221, 3(1).
15. 20 M.R.S.A. 101; P.L.1971, Chap. 492. P.L.1971, Special Session 1972,
Chap. 610 changed his title to Commissioner of Education and Cultural
Services.
16. "1. General supervision. To exercise a general supervision of
all the public schools and to advise and direct the town committees
and superintendents in the discharge of their duties, by circular
letters and personal conference, devoting all his time to the duties
of his office;
. . . .
7. Studies to be taught. To prescribe the studies to be taught in
the public schools and in private schools approved for attendance and
tuition purposes, reserving to superintending school committees,
trustees or other officers in charge of such public or private schools
. . the course of study prescribed by the commissioner shall be
followed in all
_______________________________________________________________________________
[/393]
Until the enactment of the Municipal Employees Labor Relations Law, the
local school authorities retained all the responsibility for the operation of
the public schools which had not been given to the Commissioner of Education or
specifically assumed by the Legislature. The effectiveness of their authority
has been limited, of course, by the extent that local legislative bodies made
finances available.
While the present actions present many issues concerning various areas of
the arbitrators' award, we must first consider the constitutionality of the Act
in so far as it requires local school boards, at the request of the teaching
employees, to submit to binding arbitration disputes arising both out of the
making of the labor contract and out of later employment under the contract.
Can the superintending school committees constitutionally delegate this
authority to arbitrators? In requiring them to do so, can the Legislature
constitutionally take away the authority which local officials had traditionally
exercised and repose it in persons who compose ad hoc boards of arbitration?
If so, has there been such a valid delegation of authority here?
". . . All acts of the legislature are presumed to be
constitutional and this is a 'presumption of great strength.' . . .
The burden is upon him who claims that the act is unconstitutional to
show its unconstitutionality. . . . Whether the enactment of the law
is wise or not, and whether it is the best means to achieve the
desired result are matters for the legislature and not for the Court.
. . ." State v. Fantastic Fair, 158 Me. 450, 467, 186 A.2d 352, 363
(1961).
We have examined the few decisions from other jurisdictions which have dealt
with these issues.
The concept of collective bargaining between public officials and their
municipal employees is of comparatively recent appearance in the courts of this
country. Many courts found this concept impossible to reconcile with the long
accepted principle that members of the public are entitled to have public
service issues determined according to the best judgment of the officials to
whom they have entrusted the responsibilities. In most of the jurisdictions
where the issue has been litigated it has been held that municipal officers have
no right to bargain collectively in the absence of legislation giving them this
authority and that when city officials agree to bargain collectively
without such legislation they are abdicating the responsibilities reposed in
them by the electorate.[fn]17
It appears to be accepted that statutes relating to labor relations in
general have uncertain application to the public sector as the courts find that
public employees, as servants of the public welfare, occupy a status much
different from that of employees engaged in private enterprises.[fn]18
While a number of states have recently enacted legislation to permit
collective bargaining in different forms in the public sector, very few cases
involving these laws
____________________
public schools and in all private schools approved by the said commissioner
for attendance or tuition purposes. Upon the approval by the said
commissioner of any course arranged by the superintending school committee
of any town, or by the trustees or other officers of any private school,
said course shall be the authorized course for said town or private school.
. . ."
17. State Board of Regents v. United Packing House Food and Allied Workers,
Local No. 1258, 175 N.W.2d 110 (Iowa 1970); In Re Richfield Federation of
Teachers, 263 Minn. 21, 115 N.W.2d 682 (1962); City of Fort Smith v.
Arkansas State Council No. 38, 245 Ark. 409, 433 S.W.2d 153 (1968); Norwalk
Teachers' Ass'n. v. Board of Ed., 138 Conn. 269, 83 A.2d 482 (1951).
18. City of Manchester v. Manchester Teachers Guild, 100 N.H. 507, 131 A.2d
59 (1957); Wichita Public Schools Employees Union, Local No. 513 v. Smith,
194 Kan. 2, 397 P.2d 357 (1964).
_______________________________________________________________________________
[/394]
have reached the courts of last resort and judicial concern over loss of
governmental responsibility has not disappeared. When collective bargaining is
provided by statute, the public officials cannot be said to have abdicated
ultimate responsibility -- the legislature has taken it away from them -- but
the power of the legislature to delegate to private persons discretion to
determine issues which are essentially governmental is not free from doubt.
In 1947 the Pennsylvania General Assembly enacted legislation which
established grievance procedure under which public employer-employee disputes
should be submitted to a mediation board which, after hearing, would make
findings and recommendations to local public officials. Such a mediation board
heard such a dispute for the Erie firefighters and then recommended that the
City Council enact an ordinance creating a pension plan which the mediators
found the public interest required.
In Erie Firefighters Local No. 293 v. Gardner, 406 Pa. 395, 178 A.2d 691
(1962) the firefighters had brought mandamus to compel the City Council
to take this action. The Court chose to face the constitutional issue by
"assuming" that the statute did require the City Council to take the action the
mediators recommended. The Court held that, as so construed, the statute was an
unconstitutional delegation of legislative discretion to the mediators.
An article in the Pennsylvania Constitution contained this language:
"'The General Assembly shall not delegate to any special
commission, private corporation or association, any power to make,
supervise or interfere with any municipal improvement, money, property
or effects, whether held in trust or otherwise, or to levy taxes or
perform any municipal function whatever.'" Erie Firefighters Local No.
293 v. Gardner, supra at 395, 178 A.2d at 695.
The Court recognized that there was, even then, an important current trend
toward delegation of power to administrative bodies, but said:
"If the delegation of power is to make the law, which involves a
discretion of what the law shall be, then the power is nondelegable.
If the conferred authority is the power or discretion to execute the
law already determined and circumscribed, then the delegation
is unobjectionable. . . . We are of the opinion, therefore, that if
the Act of 1947 makes the findings of the panel of conciliators
binding upon the city in so far as the creation of municipal
ordinances is concerned, then that portion of the Act which so states
is unconstitutional and cannot be enforced in this proceeding." Erie
Firefighters Local No. 293 v. Gardner, supra at 395, 178 A.2d at 695.
The State of Wisconsin had one of the first comprehensive municipal labor
laws in the nation and Local 1226, Rhinelander City Employee's v. City of
Rhinelander, 35 Wis.2d 209, 151 N.W.2d 30 (1967) is frequently cited as
representing a modern judicial attitude as to this problem. Their statute
authorized municipalities to enter into labor contracts with representatives of
employees. The statute permitted but did not require cities to make binding
agreements to submit grievances to arbitration. (Wisconsin had earlier held in a
non-labor dispute case that a city may submit to binding arbitration claims
arising out of contract.[fn]19)
The City entered into a labor contract in which it agreed to submit
grievances to arbitration. Later it refused to arbitrate contending that to be
required to do so would be an unlawful infringement upon the legislative power
of the City. The Court held that the City, having agreed to arbitrate, could
now be forced to carry out its agreement. It is necessary, however, to an
appreciation of the Court's opinion to
____________________
19. City of Madison v. Frank Lloyd Wright Foundation, 20 Wis.2d 361,
122 N.W.2d 400 (1963).
_______________________________________________________________________________
[/395]
note that it added, distinguishing between interests arbitration (that is,
disputes involved in the making of the labor contract) and grievance arbitration
(disputes arising out of employment under a contract which has already been
made):
"Yet in all of its arguments the city is talking about arbitration
in the collective bargaining context -- arbitration to set the terms
of a collective bargaining agreement. Such is not this case, which
involves arbitration to resolve a grievance arising under an existing
agreement to which the city is a party." Local 1226, Rhinelander City
Employee's v. City of Rhinelander, supra at 220, 151 N.W.2d at 36.
While the acceptance of any collective bargaining in municipal employment
affairs doubtless dilutes the absolute discretion which public officials
had formerly enjoyed, the issue becomes acutely presented when statutes or
charters provide, as an ultimate step, the right of either party to have issues
settled by arbitration which is binding upon the municipality.
State of Washington v. Johnson, 46 Wash.2d 114, 278 P.2d 662 (1955) dealt
with a "home rule" city charter which provided for binding arbitration between
the City and its firefighters concerning working conditions, wages and pensions.
The Court found this to be an invalid delegation of public authority and the
language of the opinion seems to be representative of the rationale of the
majority of courts.
"Can the legislative body abdicate its responsibility and turn it
over to a board of arbitrators whose decision will be binding upon the
legislative body and the firemen? Clearly it has no legal right to do
so. The theory of delegation of authority is that the person or
group, to whom authority has been delegated, acts for and as the agent
of the person or group delegating such authority. That is not the
situation here. Here the council would be stepping out of the picture
entirely and the arbitration board would be performing a
function which, by law, is the responsibility of the council."
Washington v. Johnson, supra at 121, 278 P.2d at 666.
The absence of a state statute authorizing binding arbitration did not
appear to control the Court's reasoning in Johnson and the same rationale is
expressed in Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547 (1962) where the
Colorado Court found that another "home rule" charter amendment which authorized
city officials to submit municipal labor disputes to binding arbitration
constituted an unconstitutional delegation of authority.
In Joint School District No. 8, City of Madison v. Wisconsin Employment
Relations Board, 37 Wis.2d 483, 155 N.W.2d 78, 80-81 (1967) the Court examined
the language of the Wisconsin statute which provided that "municipal employees
shall have '. . . the right to be represented by labor organizations of their
own choice in conferences and in negotiations with their municipal employers or
their representatives on questions of wages, hours, and conditions of
employment.'" The Court decided that in using this language the legislature
intended to distinguish between labor relations in the private sector and those
in municipal employment. The statute, it found, required the City only to meet
and negotiate and engage in fact finding. It said that, while this might affect
a determination of the controversy by moral force, it is not an unlawful
delegation of authority because it is not binding on the City. The final
determination must still be made by the school board. If the statute required
the City to participate in collective bargaining, the Court said, in dicta, it
would be a surrendering by the members of the school board of the municipal
function entrusted to them.
The constitutionality of a Rhode Island statute known as the Firefighters'
Arbitration Act which provided for collective bargaining including binding
arbitration was considered by the Rhode Island Supreme
_______________________________________________________________________________
[/396]
Court in City of Warwick v. Warwick Regular Firemen's Association, 106 R.I. 109,
256 A.2d 206 (R.I. 1969). The Court upheld the principles of the legislature's
propriety of delegation of power to arbitrators in this language:
"We concur in the conclusion of the trial justice that it is within
the prerogative of the legislature to vest administrative boards or
public bodies or officers with some portion of the legislative
power where such action is necessary to give operative effect to the
antecedent legislation. We are of the opinion that when the
legislature, in an exercise of its lawmaking authority, enacts a
statute the purpose of which is to secure to the public some right or
benefit, it may delegate to an appropriate agency or officer some
residuals of its legislative power in order to permit the selected
agent to accomplish the ends contemplated in the original legislation.
Of course, this is not to say that the legislature may abdicate its
duty to legislate. Where the purposes of the antecedent legislative
enactment may be best accomplished through the employment of an agent
acting in its stead, the legislature may delegate to that agent a
sufficient portion of its power to enable it to make the statute
operative." City of Warwick v. Warwick Regular Firemen's Association,
supra at 208-209.
Following the passage in 1955 of a New Hampshire statute permitting
municipalities to "recognize unions of employees and make and enter into
collective bargaining contracts with such unions" the City of Berlin entered
into a contract with the local union representing the city police. A section
in the contract provided for grievance arbitration by an impartial arbitrator
to be appointed by the state board of arbitration whose decision was to be
final and binding. In Tremblay v. Berlin Police Union, 108 N.H. 416, 237
A.2d 668 (1968), this was attacked as an unlawful delegation of municipal
authority. The New Hampshire Court said:
"If that were the end of the matter, it would present a serious
question. But, as previously noted, the clause [of the contract] was
specifically amended to provide that it 'shall comply and be
subordinate to N.H. State Law.' This amendment subjects the grievance
and arbitration procedure to Laws 1963, 275:5 as well as the state
arbitration statute (RSA 273:12-27) which contains a provision that a
party may give a notice in writing not to be bound by the arbitrator's
decision." Tremblay v. Berlin Police Union, supra at 421, 237 A.2d at
672.
The contract also contained the Union's acceptance of the fact that the
police department must operate with its budget as set by the city council and
that nothing in the arbitration paragraph shall be construed so as to conflict
with applicable state laws. The Court concluded that the contract was
not an unlawful delegation of the city's authority to control the police
department.[fn]20 Thus explained, the opinion constitutes only an approval of
legislation permitting municipalities to contract for non-binding grievance
arbitration which is not necessarily binding.
While there is a little legal precedent, some of the writers on the subject
seem to feel that the problem of delegation is more easily satisfied if the
arbitrators themselves are public officials.[fn]21 It will be re-
____________________
20. Our Legislature enacted a Fire Fighters' Arbitration Law in 1965 (26
M.R.S.A. 980-992) which provided for binding arbitration, both interests
and grievance. It was repealed simultaneously with the enactment of the
Act now under consideration. P.L. 1969, Chap. 424, 2. This Court was
called upon to interpret the arbitration features of the law in Rockland
Professional Fire Fighters Ass'n v. City of Rockland, Me., 261 A.2d 418
(1970) but the issue of its constitutionality was not raised.
21. Wellington & Winter, Structuring Collective Bargaining in Public
Employment, 79 Yale L.J. 805 (1970); Comment in 68 Mich.L.Rev. 260, 284
(1969). For exam-
_______________________________________________________________________________
[/397]
membered that our own statute authorizes the appointment of arbitrators who are
private citizens and not in any way responsible to the public although their
decisions might affect the quantity, quality and cost of essential public
service.
The Rhode Island statute, earlier discussed, authorized a delegation of
authority to a board of arbitrators such as our own -- one arbitrator to be
chosen by the city, one by the union and those two to select the third -- whose
decisions are to be binding. It was contended in City of Warwick v. Warwick
Regular Firemen's Association, supra, that the statute contemplated an
unconstitutional delegation of governmental authority to private individuals but
the Court found the delegation to be proper, employing reasoning, however, which
appears to be tautological. The Court considered that since the statute
provided that the person chosen as arbitrator receives a portion of the
sovereign power of the state, that person necessarily becomes a public officer
while he is performing these duties.
It appears, then, that most of the cases holding that agreements to submit
public employee labor disputes to binding arbitration are invalid attempts to
delegate official responsibility come from states that had no legislation
authorizing such agreements. On the other hand, serious concern over the
problem is apparent in all the decisions and several of those often spoken of as
favorable to the position urged here by the Association limit their holdings to
grievance arbitration of contracts which municipalities have already entered
into. It may be that the Rhode Island statute is the only one imposing upon the
municipalities binding arbitration in the areas of both interest and grievance,
without specific constitutional authorization, which has been finally upheld.
We consider that decisions involving arbitration in essential industries in the
private sector such as hospitals and public utilities give us little
assistance as to this problem.
With scant solid precedent to guide us, we return to our own situation. We
find that our Constitution gave the Legislature full responsibility over the
subject matter of public schools and education and empowered it to make all
reasonable laws in reference to schools and education for the "benefit of the
people of this state". Opinions of the Justices, 68 Me. 582 (1876). Except for
the areas where the Legislature has from time to time seen fit to impose its own
requirements and except for the authority later given to the Commissioner of
Education, the responsibilities for operating the public schools have remained
in the local school boards.
The Legislature has now decided to take from the school boards the ultimate
authority they have exercised in certain areas of school management -- that is,
as to "hours, and working conditions" and contract grievance arbitration -- and
to give it to ad hoc boards of arbitration.[fn]22
It is settled beyond question that the Legislature may properly conclude
that the purposes of its legislation may best be carried out through agents and
that it may delegate to the agents a portion of its power to facilitate the
functioning of the legislative program. McGary v. Barrows, 156 Me. 250, 163
A.2d 747 (1960); McKenney v. Farnsworth, 121 Me. 450, 118 A. 237 (1922).
There can be no doubt but that the Legislature, which is the source of all
mu-
____________________
ple, a Nebraska statute allows submission of public labor disputes to a
Court of Industrial Relations. Nebraska Public Laws 1965, Chap. 396.
22. It will be remembered that the school boards are required only to consult
as to educational policy, that the arbitrators may only recommend terms of
settlement in controversies over salaries, pensions and insurance and that
school boards' power to comply with the arbitrators' awards in matters that
are subject to binding arbitration is limited by other existing statutory
enactments and orders of the Commissioner of Education.
_______________________________________________________________________________
[/398]
nicipal authority (Squires v. Inhabitants of City of Augusta, 155 Me. 151, 153
A.2d 80 (1959), has also the power to take back from municipal officers portions
of the authority it has earlier given them.
It is clear that the Legislature has recognized that the maintenance of a
satisfactory quality of public education requires harmonious relations between
school officials and the teaching staffs and that disagreements inevitably arise
during the carrying out of their respective responsibilities. The abrasive
effect of the existence of unresolved grievances is one of the threats to
harmonious relations which the Legislature considers should be removed.
The lawmakers have recognized that policy making decisions should remain
in the local officials, responsible to the public, and that while the citizens
may properly be subjected to moral suasion as to such matters as wages and
pensions, the ultimate determination of such matters with such heavy impact
upon -- and so limited by -- municipal appropriations should be made by local
officials.
The Legislature has apparently concluded, on the other hand, that experience
has taught that certain aspects of this dynamic and complicated municipal
employer-employee relationship no longer need remain subject to arbitrary
decision by the employer and that in the area of working conditions and hours
and of contract grievances the interests of the employees must in fairness be
examined by impartial persons. The Legislature appears to believe that this
much can be done without serious disruption of the balancing of operating costs
against municipal appropriations.
We realize that in providing that the contract making process itself (as it
affects working conditions and hours) is subject to binding arbitration, our
Legislature has moved into an area forbidden by many courts. The Legislature
must have concluded that the benefits which are sought by the statute can never
be achieved if an impasse occurs at the very beginning of the relationship.
This conclusion is not unreasonable.
True, the statute does not contemplate the delegation of authority to
public administrative boards or agencies but instead gives it to ad hoc panels
whose memberships are not to be controlled by governmental action. Here we are
of the opinion that the Legislature, mindful of the denial to municipal
employees of such economic weapons as strikes and work stoppages which are
available to employees in private employment, has sought to avoid the disruptive
feelings of resentment and bitterness which may result if the governmental
employee may look only to the government for redress of his grievances.
Where the ultimate arbiter of the dispute is a representative of one side
of the dispute, adverse decisions will be hard to accept and the tendency toward
alienation will be strong.[fn]23
We consider that there is a rational reason for the Legislature's decision
that its purposes would be best effectuated if the parties are left to choose
their own arbitrators in the limited non-policy areas which are subject to
arbitration.
PART II
While we consider that the Legislature may justifiably choose to permit
private citizens to exercise the limited portions of its sovereign power (as it
concerns teacher-school board labor relations) which we have just discussed, it
is well established that a legislative body cannot delegate the legislative
power without including in the delegating statute sufficient standards to guide
the agents in the exercise of the legislative authority. Small v. Maine Board
of Registration and Examination in Optometry, Me., 293 A.2d 786,
____________________
23. James M. Ringer, Legality and Propriety of Agreements to Arbitrate Major
and Minor Disputes in Public Employment, 54 Cornell L.Rev. 129 (1968).
_______________________________________________________________________________
[/399]
(1972); Waterville Hotel Corp. v. Board of Zoning Appeals, Me., 241 A.2d 50
(1968); Opinion of the Justices, 155 Me. 30, 48, 152 A.2d 81 (1959); Local 170,
Transport Workers Union of America v. Gadola, 322 Mich. 332, 34 N.W.2d 71
(1948); City of Warwick v. Warwick Regular Firemen's Association, supra.[fn]24
In 1947 the New Jersey Legislature enacted a law which provided for
compulsory arbitration of labor disputes in public utilities and authorized ad
hoc boards of arbitration chosen much as our own statute provides. The statute
contained no statement of criteria to guide and limit the discretion of the
arbitrators. The opinion by Chief Justice Vanderbilt said, in part:
"If no standards are set up to guide the administrative agency in
the exercise of functions conferred on it by the legislature, the
legislation is void as passing beyond the legitimate bounds of
delegation of legislative power and as constituting a surrender and
abdication to an alien body of a power which the Constitution confers
on the Senate and General Assembly alone. Nowhere in this act is
there any guide furnished to the board of arbitration other than that
it shall arbitrate 'any and all disputes then existing between the
public utility and the employees . . .'
. . . There is, thus, an even greater need of specific standards
than there would be in the case of a continuous administrative body
which might gather experience as it went along. . . .
Standards of delegation are peculiarly required, moreover,
where the legislature is enacting a new pattern of social conduct . . ."
State v. Traffic Telephone Workers' Federation of New Jersey, 2 N.J.
335, 66 A.2d 616, 625-626 (1949).[fn ]25
The extent to which the standards must be detailed must depend upon the
nature of the service which the legislative body has determined should be
performed by the administrative agency. The need here is to protect both the
public and the employee from unnecessary and uncontrolled discretionary power.
[fn]26
Mr. Justice Wernick's opinion agrees that even though the present law
involves an area of internal governmental employer-employee relationship, the
statute delegates to the arbitrators a portion of the police power of the State
(to the extent that it empowers the public employer to force binding arbitration
upon the teachers against their wills). It also agrees that there are
carry-over effects upon the personal and property rights of the citizenry
____________________
24. As an apparent response to the decision in Erie Firefighters (earlier
discussed), a constitutional amendment was presented to and passed by the
electorate which specifically authorized the delegation to panels or
commissions of the authority to determine municipal labor disputes.
The legislature then enacted a statute which authorized collective
bargaining between policemen and firemen and their public employers,
culminating, when the parties have bargained to an impasse, in binding
arbitration. City policemen then brought mandamus to compel the Borough
Council to enact legislation to carry out the arbitrators' award. The City
objected that the statute provided no standards. The Court held that the
new constitutional amendment obviated the need for standards which the
Court had on earlier occasions held are demanded if legislative power is to
be delegated. The Pennsylvania Court added that even if the constitutional
amendment did not apply, the statute revealed a legislative purpose to
protect the public from strikes by policemen and firemen which furnished
sufficient standards and that a more explicit expression of legislative
policy in a statute providing for labor arbitration would be "folly".
Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969).
25. The succeeding legislature enacted a new statute with standards which the
New Jersey Supreme Court, in a new case, found to be adequate. New Jersey
Bell Tel.Co. v. Communications Workers of America, New Jersey Traffic
Division No. 55, 5 N.J. 354, 75 A.2d 721 (1950).
26. Theodore W. Kheel, Strikes and Public Employment, 67 Mich.L.Rev. 931
(1969); Kenneth Culp Davis, Administrative Law Treatise, 2.11-2.14.
_______________________________________________________________________________
[/400]
in general. Although that opinion does not agree that standards are
constitutionally mandated in this Act, it appears to concede that, because of
the presence of those two factors, potential constitutional infirmities could
develop if the Act does not reveal a combination of 1) a "primary standard" or
"intelligible principle", and 2) adequate procedural safeguards and opportunity
for effective judicial review which can protect the teachers and the public
against irresponsible, arbitrary action. That opinion looks for these primary
standards and intelligible principles and is satisfied that they can be found
in the totality of the Act.
We, on the other hand, consider that the constitutional issue is
unavoidably presented now. The question is whether there can be found in the
Act sufficient standards -- specific or generalized, explicit or implicit -- to
protect the teachers and the public from possible arbitrary and irresponsible
exercise of this delegated power by these ad hoc boards of arbitration. We
arrive at the conclusion that no such standards can be found.
We do not concede that the fact that the Act has its primary effect upon
the internal governmental employer-employee relationship makes the need for
standards more easily satisfied. Neither do we find in the Act procedural
safeguards or adequate review techniques which could make the need for
standards more easily satisfied.
We recognize that in an area such as labor arbitration where a great
variety of issues may be expected to be presented and where considerable
flexibility is essential, it is not reasonable to require that the arbitrators'
evaluations and options be restricted rigidly.
"It is not necessary that Congress supply administrative officials
with a specific formula for their guidance in a field where
flexibility and the adaptation of the congressional policy to
infinitely variable conditions constitute the essence of the
program. 'If Congress shall lay down by legislative act an
intelligible principle . . . such legislative action is not a
forbidden delegation of legislative power.'" Lichter v. United States,
334 U.S. 742, 785, 68 S. Ct. 1294, 1316, 92 L. Ed. 1694, 1726 (1948).
While it is essential to the success of arbitration that arbitrators deal
with each case on its own merits, it is not necessary -- or constitutionally
possible here -- that the legislative body give the arbitrators uncontrolled
discretionary power.
We do not agree that the "primary standard" or "intelligible principle"
which some of the federal cases have found sufficient in their situations would
necessarily satisfy our own constitutional demand for standards in this case.
However, we do not believe that even the "primary standard" or "intelligible
principle" of which Lichter v. United States, supra and Mr. Justice Wernick's
opinion speak -- can be found here from the totality of legislative expression
in the several aspects which are discussed in his opinion and on which we wish
to comment with full respect to the points of view of our disagreeing
colleagues.[fn]27
As Mr. Justice Wernick's opinion indicates, in some jurisdictions it has
been found that an Act's statement of policy furnishes sufficient guidance to
assure that the individuals to whom the power has been delegated are not free
to exercise unrestricted legislative authority according to their own
discretions. Fairview Hospital Ass'n. v. Public Building Service and Hospital
and Institutional Employees Union Local No. 113, 241 Minn. 523, 64 N.W.2d 16
(1954). This Act's stated purpose is to promote improvement in the relationship
between the public employer and employee by providing adequate machinery for
the employers and representatives of the em-
____________________
27. Note, Maine's Public Labor Law, 24 Maine L.Rev. 73 (1972).
_______________________________________________________________________________
[/401]
ployees to use in settlement of their disagreements. It is the Legislature's
aspiration that the availability and use of this new collective bargaining
machinery will result in a more harmonious employer-employee relationship but
this purpose can hardly be considered as a meaningful criterion for the
arbitrators' determination, issue by issue, of the individual subject matters
before them.
In Kovak v. Licensing Board, City of Waterville, 157 Me. 411, 173 A.2d 554
(1961) we ourselves found to be constitutional a statute which authorized a
municipal licensing board to revoke a victualer's license when it is "satisfied
that the licensee is unfit to hold the license". The Court found that the need
for adequate criteria to guide the Board in such determinations -- although
absent in the section which authorized revocation -- was found in several
separate but related sections of the same chapter which mandated certain
specific good conduct on the part of victualers. We are unable to discern any
such related legislation here which supplies the need for standards which the
Kovak Court recognized to be required.
We agree that the Legislature contemplated that these private individuals
to whom it has given such authority over the functioning of public education
would act fairly and reasonably. Unquestionably, a similar expectation is
implicit in every statute which delegates power to administrative bodies. The
unspoken demand for integrity is, of course, a standard for the arbitrators'
conduct, but it does not furnish the crucial criteria to guide the arbitrators
as to what factors should be given consideration in their examination of the
issues presented to them.
While we share our disagreeing colleagues' expectations that when
the issues reach the arbitrators they will have been sharply delineated by the
preliminary procedures of collective bargaining -- a probable contribution to
the efficiency of the arbitration process -- this cannot obviate the need for
standards. The arbitrators are still left to act upon these issues with
undirected and unlimited discretion.
We cannot agree with Mr. Justice Wernick's opinion that the Act's exclusion
of educational policies from consideration by negotiators, fact finders and
arbitrators -- or its limiting the arbitrators' authority as to salaries,
pensions and insurance to recommendations and fact finding -- constitute an
indication of legislative purpose which can be considered a criteria to guide
the arbitrators in their determinations in areas outside the excluded portions.
We cannot so construe it. The exclusion of educational policies, salaries,
pensions and insurance from binding arbitration only defines the boundaries of
the area in which the arbitrators may act with binding effect -- to wit, the
area of working conditions and hours -- without indicating the factors the
arbitrators should consider as entering into their decisions concerning
working conditions and hours.
We have considered Mr. Justice Wernick's opinion's reference to the last
paragraph in section 965(1) which reads:
"Whenever wages, rates of pay or any other matter requiring
appropriation of money by any municipality are included as a matter of
collective bargaining conducted pursuant to this chapter, it is the
obligation of the bargaining agent to serve written notice of request
for collective bargaining on the public employer at least 120 days
before the conclusion of the current fiscal operating budget."
We construe this paragraph as requiring a timely caveat whenever a future
bargaining agreement by the parties or a binding award by the arbitrators may
necessitate an increased or additional appropriation so that the municipality
may anticipate it in the next municipal budget. The language falls short of
being a directive to the arbitrators that they are to give consideration to the
municipality's ability to meet
_______________________________________________________________________________
[/402]
the cost of the award in view of its other obligations and responsibilities.
While it is apparent that the draftsmen of the Act took care to omit from
this legislation many elements which have given other courts their greatest
concern, we consider that the absence from the Act of any standards to guide and
limit the arbitrators invalidates the Act as far as its applicability to binding
arbitration of labor disputes in the public school area is concerned.
There are many features of the bill the cumulative effect of which appear
to us especially to demand that the Legislature include standards which will
effectuate the carrying out of its purposes. The Act distinguishes between the
arbitrators' authority as to disputes involving educational policy and those
concerned with working conditions but neither educational policy nor working
conditions is defined by the Act. Also, the Act provides the arbitrators with
no criteria for dealing with the likely situations where a single decision may
bear with substantial importance upon both educational policies and working
conditions. The arbitrators are not public officials and are not required to
answer to the electorate or to the elected representatives of the electorate.
They are completely free to determine issues by the application of their own
political, social or economic theories. They will not be members of a permanent
panel but will be chosen on a case by case basis which militates against
an accumulation of experience and their development of standards. The Act
specifies that the third arbitrator shall be "neutral" and strongly suggests a
legislative intention that the two arbitrators chosen by the parties may be
partisan advocates, following a practice prevailing in labor arbitration in the
private sector. Thus the discretion being delegated may, in fact, be reposed in
one private individual who may not even be a resident of the State.
This Act -- unlike those in some other states -- does not provide that the
arbitrators' award is to be subject to existing statutory restrictions in the
educational field, to existing or future appropriations or to proper orders of
the Commissioner of Education. Although decisions in this area of disputes can
have serious impacts upon the public interest in general, the quality of
education and a municipality's ability to meet its other serious
responsibilities, the arbitrators are left completely free to ignore these
factors and to use whatever criteria they choose for their final determinations.
Although provision is made for review by the Superior Court on questions of
law, the arbitration panels' determinations as to questions of fact are
final, in the absence of fraud. There is no requirement that the arbitrators
make findings of fact, even as to matters in which their determinations are
final and binding, which seriously limits the ability of the courts on appeal to
protect against unbridled discretion.
Finally, the arbitrators -- like those discussed by Chief Justice
Vanderbilt in Traffic Telephone Workers' Federation of New Jersey -- would be
putting into operation a pattern of social conduct which is entirely new to us.
We do not suggest that all of these elements must -- or can profitably -- be
the subject of specific standards. Rather, we say that, in total, they
emphasize the need for standards here. The Constitution has specifically
reposed in the Legislature full responsibility over the conduct of public school
education for the "benefit of the people of this state"[fn]28 and the Legislature
has chosen to delegate a final responsibility in the important area of hours and
working conditions. It has done so, however, without any clear indication as to
what factors the arbitrators must consider in making these final decisions.
We hold that the Legislature's attempt to delegate to arbitrators binding
determina-
____________________
28. Opinions of the Justices, 68 Me. 582 (1876), supra.
_______________________________________________________________________________
[/403]
tion of labor disputes between teachers and their public employers is void for
lack of adequate standards.
We are satisfied that the provisions of the Act concerning arbitration are
severable from the remainder of the statute and we find no constitutional
infirmity in the Legislature's imposing upon teachers and their public employers
the other obligations of collective bargaining found in the Act.[fn]29
The Court being equally divided on the question of constitutionality, but
being in unanimous agreement that the Arbitrators exceeded their statutory
jurisdiction in their determination as to "Class size", "Length of a Teacher's
Working Day" and "Scheduling and Length of School Vacations and of the
Commencement of the School Year", the cases are ordered remanded to the
Superior Court for action:
1) In Docket No. 2688-71, City of Biddeford by its Board of Education v.
Biddeford Teachers Association, et als., the decision of the arbitration panel
of November 17, 1971 is to be modified by striking therefrom the determinations
concerning "Class size", "Length of a Teacher's Working Day" and "Scheduling and
Length of School Vacations and of the Commencement of the School Year".
After such modification, the Superior Court should enter
Judgment affirming the decision of the arbitration panel, as modified.
2) In Docket No. 2690-71, Biddeford Teachers Association v. Board of
Education of the City of Biddeford, et als., the case, as remanded, is to await
the entry of judgment in case No. 2688-71. Thereafter, the Superior Court shall
proceed in such manner as the subsequent conduct of the parties might make
necessary or appropriate.
WERNICK, Justice (Agreeing in part and disagreeing in part with the opinion
of WEATHERBEE, J.).
I concur in the conclusions reached in Part One of the opinion of Mr. Justice
Weatherbee.
I disagree, however, with Part Two and its conclusion that the
statutory provisions for binding arbitration must be nullified as an
unconstitutional delegation of powers legislative in nature. My opinion is that
the legislature has constitutionally utilized arbitration, and judicial
interference with the legislative program is unwarranted.
"Unconstitutional delegation of legislative powers" connotes that in a given
instance the legislature has transferred a portion of its legislative power to
another body in contravention of principles derived from constitutional vesting
and separation of the three polar categories of sovereign power: legislative,
judicial and executive.
For one hundred fifty years the "unconstitutional delegation" doctrine has
been developed largely in relation to the sovereign's exercise of "police power"
externally to control and regulate private personal and property rights.
In the instant statute sovereignty appears in a different role. Here, its
concerns are directed fundamentally inward to meet internal problems arising
from governmental functioning as an "employer" of "employees" in the "business"
of providing essential services to the public.
In this domain there is a paucity of judicial authority on "delegation"
questions. Since the decision of the instant case thus entails a large
measure of pioneering, analysis should not assume that principles of "delegation
" formulated relative to "police power" problems are automatically applica-
____________________
29. Our holding is confined to the particular situation of teachers under the
Act. We do not intend to suggest any opinion as to the validity of the Act
as applied to other public employees.
____________________________________________________________________________
[/404]
ble at all, or with full scope, to the present issues. Inquiry should probe
deeply to assess whether, and the extent to which, "delegation" principles
affecting the exercise of the police powers of government should be transposed
into the separate realm of sovereignty's internal "employer-employee"
relationships in the rendering of essential public services, both as a general
matter and as specifically crystallized in the particular statutory program now
under scrutiny.
I
Before American life had been substantially affected by the political, social
and economic complexities of the industrial revolution, the constitutional
vesting of the "law-making" power of sovereignty in a specific body, designated
the "legislature", was conceived to reflect, literally, the dogma of John Locke:
"The Legislature neither must nor can transfer the power of making
laws to anybody else, or pass it but where the people have."
Soon, the burgeoning needs and exigencies of the latter part of the
nineteenth century caused enormous extension of the scope of governmental police
power regulation and necessitated that broad discretionary authority be granted
to bodies other than the legislature. In the face of this development,
adherence to the Locke dogma created a dilemma which, at first, the courts
sought to resolve by giving lip-service to the dogma while escaping its
practical strictures with the rationalization that to delegate to another body
only a power to "fill in details" or "find facts" is not really to transfer
"legislative" power. Illustrative of this earlier approach are cases such as
Locke's Appeal, 72 Pa. 491 (1873); Field v. Clark, 143 U.S. 649, 12 S. Ct. 495,
36 L. Ed. 294 (1892); and in Maine, State v. Butler, 105 Me. 91, 73 A. 560
(1909).
As twentieth century pressures became heavier, the courts were ultimately
driven to the recognition that under the fiction that only "facts were being
found" or "details being filled in", they had been sustaining, with increasing
frequency, expansive grants of power unquestionably "legislative" in character.
It became apparent that fiction must be discarded to avoid confusion and
error. A new approach was necessary by which twentieth century needs
could be met realistically but yet consistently with preservation of the
essential spirit of the constitutional vesting and separation of the polar
categories of sovereign power.
Interestingly, in the mid-nineteenth century a State Court, with remarkably
prophetic insight, had provided the root concept for such undertaking. In
People v. Reynolds, 10 Ill. 1 (1848) the Illinois Court had observed:
". . . few will be found to insist, that whatever the legislature may
do, it shall do, or else it shall go undone. . . . it may still
authorize others to do those things which it might properly, yet can
not understandingly or advantageously do itself. Without this power
legislation would become oppressive, and . . . imbecile. . . . but in
doing this it [the legislature] does not divest itself of any of its
original powers. It still possesses all the authority it ever had."
(pp. 13, 20 and 21)
Seventy years later, the message, more frequently heard, was amplified --
and by another State Court. In State v. Whitman, 196 Wis. 472, 220 N.W. 929
(1928) the Wisconsin Court perceived that (1) necessity had required "delegation",
and "cross-delegation", of the powers of government; (2) to accomplish
it the courts, by "one pretext or another", had been upholding extensive
delegations of legislative power; (3) avoidance of "confusion and error", and a
"logical and symmetrical development" of administrative law, demanded that a new
approach be adopted, abandoning the pretense of "finding facts" and filling in
"details" and acknowledging that legislative power, as such, is constitution-
___________________________________________________________________________
[/405]
ally permissible of delegation under appropriate limitations to check against
abuse -- the most potent of which is the legislature's retention of power to
revise or withdraw the power granted; (4) if a prospective legislative
"standard" is to be used as a device to confine administrative authority, the
subject-matter under regulation will often allow as feasible only a generalized
"standard"; and (5) the "standard" need not be expressly stated but may be
implicit in the overall statutory context.[fn]1
In the development of its rationale Whitman relied substantially upon a
course being chartered almost simultaneously by the Supreme Court of the United
States in Hampton & Co. v. United States, 276 U.S. 394, 48 S. Ct. 348, 72 L. Ed.
624 (1928) -- a decision itself bringing to fruition the seeds of a newer
federal approach to the problems of "delegation" germinated in 1924 in Mahler v.
Eby, 264 U.S. 32, 40, 44 S. Ct. 283, 68 L. Ed. 549 (1924).
In Mahler v. Eby the Supreme Court of the United States, taking its clues
from leads in Buttfield v. Stranahan, 192 U.S. 470, 24 S. Ct. 349, 48 L. Ed. 525
(1904), had begun to talk explicitly of the constitutional permissibility of
delegation of powers avowedly "legislative" so long as consent of the governed
is channeled through the legislature to be a continuing indirect source of
control over the actions of a body not immediately responsible to the people.
The mechanism conceived to serve this "conduit" function was the prospective
prescription by the legislature, as the people's delegate, of a "primary
standard" to confine the legislature's delegate.
Hampton & Co. v. United States developed this into the full-blown principle:
"If Congress shall lay down by legislative act an intelligible
principle to which the person or body authorized to . . . [act] is
directed to conform, such legislative action is not a forbidden
delegation of legislative power." (276 U.S. p. 409, 48 S. Ct. p. 352)
Thus, the Court in Hampton & Co. recognized that the transfer of legislative
power will not, as such, produce constitutional infirmity; it is rather the
manner of the transfer -- whether it places unbridled legislative authority in a
body not responsible to the electorate and thus precipitates the potential for
an absolutism of power (the primary evil apprehended by Montesquieu and Locke to
require the protections embodied in the concepts of "separation" and "checks and
balances)."
In Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446
(1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct.
837, 79 L. Ed. 1570 (1935), and even though these decisions represented the
solitary instances in which the Supreme Court of the United States had struck
down congressional "delegation", the Court reaffirmed the "intelligible
principle" approach -- with the further development that the "principle"
need not be expressly stated by the legislature but might be regarded as
legislatively implied.[fn]2
____________________
1. As to the specific subject-matter before it the Whitman Court observed:
"While the statute does not in terms provide that the commissioner of
insurance shall exercise a sound and reasonable discretion in the
disapproval of proposed rules and regulations, that condition is
necessarily implied. As has been said many times, in many cases
administrative officers or bodies must act, not only within the field of
their statutory powers, but in a reasonable and orderly manner. . . . The
rule of reasonableness inheres in every law, and the action of those charged
with its enforcement must in the nature of things be subject to the test of
reasonableness." (pp. 942, 943)
2. The language of Chief Justice Hughes, writing for the majority in Panama
Refining Co. v. Ryan, was: "We examine the context to ascertain if it
furnishes a declaration of policy or a standard of action, which can be
deemed . . . to imply what is not there expressed." (293 U.S. p. 416, 55 S.
Ct. p. 246) In dissent Justice Cardozo explicitly added: "I concede that to
uphold the delegation there is need to discover in the terms of the act a
standard reasonably clear
_______________________________________________________________________________
[/406]
Subsequent evaluations in the federal Courts saw the most general of
"standards" relied upon to sustain the constitutionality of large delegations of
legislative power. As shown by Yakus v. United States, 321 U.S. 414, 64 S. Ct.
660, 88 L. Ed. 834 (1944) and American Power & Light Company v. Securities and
Exchange Commission, 329 U.S. 90, 67 S. Ct. 133, 91 L. Ed. 103 (1946), the focus
was upon whether the legislature had imposed, explicitly or implicitly, a check
on absolutism by an "intelligible principle" by which the delegated power
"is . . . canalized within banks that keep it from overflowing."
Cardozo, J., concurring, in Schechter Poultry Corp. v. United States,
295 U.S. 495, 551, 55 S. Ct. 837, 852, 79 L. Ed. 1570 (1935)
To the objection raised in American Power & Light Company that Congress had,
in effect, because of vagueness and generality, allowed "unlimited whim" and
"unfettered discretion" to the Securities and Exchange Commission
"to decide whose property shall be taken or destroyed and to what
extent" (329 U.S. p. 104, 67 S. Ct. p. 142),
the Supreme Court of the United States answered that (1) in other contexts
"standards" as broad and indefinite as "public interest," "just and
reasonable rates," "unfair methods of competition" or even "relevant factors"
had been approved as adequate limitations upon the exercise of arbitrary power
(p. 105, 329 U.S. 90, 67 S. Ct. 133, 91 L. Ed. 103); (2) the judicial approval
accorded these broad standards reflected a "necessity", imposed by complex
economic and social problems, which
" . . . fixes [that] . . . it . . . becomes constitutionally sufficient
if Congress clearly delineates the general policy, the . . . agency
which is to apply it, and the boundaries of this delegated authority"
(p. 105, 67 S. Ct. p. 142)
-- the protection of private rights being left, primarily, to judicial review
"to test the application of the policy in the light of these
legislative declarations" (p. 105, 67 S. Ct. p. 142);
and (3) permissible sources to derive and provide meaning for the concepts
interpretable as the boundaries are
"the purpose of the Act, its factual background and the statutory
context." (p. 104, 67 S. Ct. p. 142)
In the state courts a similar trend was plainly discernible, notwithstanding
that state courts tended to be more prone than the federal to nullify
delegations -- often revealing strange internal inconsistencies within a given
body of decisions.[fn]3
____________________
whereby discretion must be governed. I deny that such a standard is lacking
. . . when the act with all its reasonable implications is considered as a
whole." (p. 434, 55 S. Ct. p. 254)
Reiterating the clear permissibility of finding standards implicit,
Justice Cardozo said: "The prevailing opinion concedes that a standard will
be as effective if imported . . . by reasonable implication as if put there
in so many words." (p. 435, 55 S. Ct. p. 254)
3. A partial explanation might be that the specific subject-matter which
most frequently comes before state tribunals involves an overlay of
additional and unique problems not entirely answerable by use of the "
standards" conception as the sole criterion of valid "delegation" and
requiring special emphasis upon prevention of arbitrary and capricious
action -- as, for example, licensing controls over the right of a person to
earn a living in a profession, trade or business (in which one's peers often
sit on the administrative tribunal having the licensing, or revocation,
power -- thus giving rise to likelihood of the influence of friendship or
self-interest); or situations involving zoning boards of appeals and their
authority to decide exceptions or variances (and in which inheres the
potential for favoritism and discrimination resulting from the influence of
small pressure groups or other aspects of local politics). These
unique features create special danger of invidious discrimination in the
exercise of power -- the worse because it might be undetectable
_______________________________________________________________________________
[/407]
In Maine, illustrative is the contrast between Butler, supra, in
1909 and the decision in 1961 in Kovack v. City of Waterville, 157 Me. 411, 173
A.2d 554 (1961). In Kovack, following strong intimations already contained in
McGary et al v. Barrows et al., 156 Me. 250, 163 A.2d 747 (1960) (which dealt
specifically with "delegation" in the field of education), this Court basically
discarded its earlier conception that law-making powers and authority may not at
all be delegated by the legislature to another body and that administrative
tribunals may be permitted only to "find facts" or "fill in details." Frankly
acknowledging that:
"There are many instances . . . where the Legislature has delegated to
an administrative body authority to use its discretion and judgment"
(157 Me. p. 417, 173 A.2d p. 557),
this Court concluded that it must be held justifiable in principle because
"[administrative] bodies are functionally necessary in the process of
government",
and
"There must be that delegation of power sufficient to the end that a
proper, . . . administration may occur." (p. 416, 173 A.2d p. 556)
The approach of Kovack was to test the validity of the delegation of
legislative power in the terms that (1)
"it is important that there exists in the statute adequate procedural
safeguards",
and (2) the
"Legislature sets the standard." (p. 416, 173 A.2d p. 557)
Cf. also: Smith v. Speers, Me., 253 A.2d 701 (1969) dealing with delegation of
the power of eminent domain.
In a dissenting opinion in Arizona v. California, 373 U.S. 546, 83 S. Ct.
1468, 10 L. Ed. 2d 542 (1963) Justice Harlan, joined by Justices Douglas and
Stewart, incisively summarized the rationale by which the "intelligible
principle", or "primary standard", mechanism for the delegation of substantial
legislative power to a body not directly responsible to the electorate may be
deemed to fulfill the essential spirit of the constitutional provisions
concerning the vesting and separation of the polar powers of sovereignty to
achieve "checks and balances." Justice Harlan said:
"The principle that authority granted by the legislature must be
limited by adequate standards serves two primary functions vital to
preserving the separation of powers required by the Constitution.
First, it insures that the fundamental policy decisions in our
society will be made . . . by the body immediately responsible to the
people. Second, it prevents judicial review from becoming merely an
exercise at large by providing the courts with some measure against
which to judge the official action that has been challenged." (p. 626,
83 S. Ct. p. 1511)
In a leading decision, Ward v. Scott, 11 N.J. 117, 93 A.2d 385 (1952), the
Supreme Court of New Jersey (likewise conceiving the same two constitutional
objectives to be fulfilled by a prospectively prescribed legislative "primary
standard" to control broad discretion reposed in bodies not immediately
answerable to the people) offered the following specifications for a sound
"standards" approach in the exercise of the police power.
(1) "It is settled that the Legislature may not vest unbridled or
arbitrary power in the administrative agency . . ." (p. 388);
____________________
and therefore, unexposable by judicial review if the power is not adequately
contained; and the dangers are aggravated because in these types of
proceedings there is generally an absence of evidentiary hearings conducted
with reasonable procedural controls. See: Waterville Hotel Corp. v. Board
of Zoning Appeals, Me., 241 A.2d 50 (1968); Small v. Maine Board of
Registration and Examination in Optometry, Me., 293 A.2d 786 (1972).
____________________________________________________________________________
[/408]
(2) hence, the legislature must give the administrative
agency "a reasonably adequate standard to guide it" (p. 388);
(3) ". . . the exigencies of modern government have increasingly
dictated the use of general rather than minutely detailed standards in
regulatory enactments under the police power" (p. 388);
(4) expansive latitude for discretion and judgment under a generalized standard
is the more readily tolerable, in police power regulation of private rights,
when procedural safeguards are afforded as an additional check upon the danger
of unwarranted or arbitrary administrative action (p. 389); and
(5) "it is elementary that we . . . must examine the entire act in the
light of its surroundings and objectives. . . . Nor are we restricted
to the ascertainment of standards in express terms if they may be
reasonably implied from the entire act. . . . '. . . That which is
clearly implied is as much a part of the law as that which is
expressed.'" (p. 387)
II
In the present situation, then, attention must be concentrated upon the
extent to which the above delineated general, and specific, concepts (as
developed in the realm of the police power control and regulation of private
rights) have reasonable applicability to government when it is acting as an
"employer" of "employees" engaged in the "business" of providing essential
services to the public -- this being an area in which the police power
regulation of private rights is not an inherently prominent factor.
Initially, assessment must be made of whether the powers here granted to
"ad hoc" arbitrators operate in a domain so attenuated in its relationship to
"law-making" activity -- and, therefore, outside areas likely to precipitate the
kinds of value judgments which demand channeling the consent of the governed
through the legislature as a continuingly operative control -- that insistence
upon a "primary standard" or "intelligible principle" becomes realistically
unnecessary.
As clarified in Part One of the opinion of Mr. Justice Weatherbee, when the
focus is strictly upon the internalities of sovereignty separately and
independently of extrapolations affecting the rights of the general citizenry,
the sovereign (acting through the legislature) is free to adopt a policy by
which it gives an advance consent that its own "employer-employee" disputes be
resolved by the binding determinations of persons serving only "ad hoc"; and
who, precisely for this reason that they are not continuing governmental
officials, are capable of being regarded by the employees of sovereignty as free
of its direct, or indirect, pressures or controls.
To the extent, therefore, that sovereignty, as one party, and its
"employees" as the other party, both freely consent to submit to "ad hoc"
binding arbitration areas of controversy lacking significant spill-over into
other spheres in which it is thought necessary to preserve the consent of the
governed as an indirect monitor of the exercise of legislative power by a body
not elected by the people, an approach which demands a legislatively prescribed
"primary standard" might be dispensed with -- reliance to be placed, instead,
upon a totality of procedural safeguards and adequate techniques of judicial
review to prevent irresponsible, arbitrary or capricious determinations.
In the present situation, however, and even though we are in the area of
internal governmental employer-employee relationships, factors are present which
could develop potential constitutional infirmities were we to forego reliance
upon the combination of a before-the-fact legislative "primary standard", or
"intelligible princi-
___________________________________________________________________________
[/409]
ple", and adequate controls against irresponsible arbitrary action through
procedural safeguards and opportunity for effective judicial review.
First, notwithstanding that sovereignty has here provided its own advance
consent to binding arbitration should the teacher employees request it,
sovereignty has not made choice by the teachers the sole determinant.
26 M.R.S.A. 965, subd. 4 provides that "either party" may bring about "binding
arbitration"; and if arbitration is requested by the public employer, a refusal
of the teachers to participate is an unfair labor practice under the combined
effects of Sections 964 and 965.
Because the statute empowers the public employer to force binding
arbitration against the will of the teachers, it is, in this respect, a "police
power" law-making control at least of the teachers; and this involvement with
the exercise of police power might generate need for a decision as to whether
unconstitutionality results from the absence of a legislatively prescribed
"intelligible principle", or "primary standard", to allow a channeling of the
consent of the governed and also to enable judicial review to be more effective
in detecting and exposing irresponsible arbitrational conduct.
Further, there are carry-over effects upon the citizenry generally.
It may be true that (1) in the statutory scheme before us "salaries,
pensions and insurance", as well as "educational policies", have been removed
from the scope of binding arbitration; and (2) thereby, the legislature has
taken from the determinative control of the arbitrators areas having the most
direct and substantial impact upon the interests of the citizenry not only
directly in the field of education but also in the quantity and quality of all
other essential public services; and (3) hence, it might be thought that the
consent of the governed, as expressed through policy determinations made by the
persons whom they elect as their representatives, need not enter as a
significant factor to require a prospective legislative "intelligible principle"
or "primary standard" to afford a pipeline of control from the people to the
arbitrators.
Nevertheless, even as thus carefully limited, the area of "working
conditions" which is subject to binding arbitration can involve sufficient
overlap with the sphere of "educational policies" (see infra, pp. 413, 414) to
precipitate for decision questions as to the statute's constitutionality should
the consent of the governed not be transmitted to the arbitrators by a "primary
standard" or "intelligible principle" prospectively prescribed by the
legislature. In addition, insofar as "working conditions" (other than "salaries,
pensions and insurance") can entail financial costs, they generate overtones
which beat upon general fiscal policy and which, therefore, affect the personal
and property rights of the citizenry (1) in the availability, as well as the
quantity and quality, of all essential public services and (2) in the taxes
which the citizenry will be called upon to pay to provide the services.
Notwithstanding, therefore, that binding arbitration is here restricted to a
narrowed domain encompassing only those "working conditions" from which matters
of "educational policies" as well as "salaries, pensions and insurance" have
been excluded, there yet remains a sufficient connection with "law-making", at
least in the sense of important value choices, to induce search for a
legislatively prescribed "primary standard" or "intelligible principle" through
which is effected, at least indirectly, a control by the electorate as the
ultimate source of fundamental value judgments -- and the presence of which will
avoid need for a decision concerning potential issues of constitutionality which
might be thought to arise were such intelligible principle lacking.[fn]4
____________________
4. This approach has been taken in the present context with full awareness
that much respectable current scholarship advocates (1) abandonment, even in
the
_______________________________________________________________________________
[/410]
In the assessment of whether the legislature has provided such
"primary standard" or "intelligible principle" the criteria for judgment, as
above delineated, are that (1) the "standard" or "intelligible principle" need
not be expressly stated by the legislature but may be found implicit in the
totality of the statutory provisions reasonably
____________________
area of police power regulation and control of private rights, of the
methodology which insists upon adequate "primary standards", legislatively
prescribed, as an absolute precondition of the validity of legislative
delegation and (2) reliance, rather, upon a total conglomerate of safeguards
against irresponsible, arbitrary or capricious action by administrative
bodies in which before-the-fact statutory standards may be a helpful, but
not an indispensable, factor. Illustrative of this attitude are the
following comments by Professor Kenneth Culp Davis:
"The non-delegation doctrine can and should be altered to turn it into
an effective and useful judicial tool. Its purpose should no longer
be either to prevent delegation of legislative power or to require
meaningful statutory standards; its purpose should be the much deeper
one of protecting against unnecessary and uncontrolled discretionary
power. The focus should no longer be exclusively on standards; it
should be on the totality of protections against arbitrariness,
including both safeguards and standards." Davis, Administrative Law
Treatise (1970 Supplement, p. 40)
Compare, however, the resurgence of the directly opposite philosophy as
recently advanced by Judge J. Skelly Wright in his book review of Professor
Davis' book Discretionary Justice: A Preliminary Inquiry.
Judge Wright maintains in Beyond Discretionary Justice, 81 Yale Law
Journal 575 (January, 1972):
"There must be some limit on the extent to which Congress can transfer
its own powers to other bodies without guidance as to how these powers
should be exercised." (p. 582) "I think the delegation doctrine
retains an important potential as a check on the exercise of
unbounded, standardless discretion by administrative agencies. At its
core, the doctrine is based on the notion that agency action must
occur within the context of a rule of law previously formulated by a
legislative body. That concept is as important now as it was a
century and a half ago when it was first propounded." (pp. 583, 584)
"Delegation is, after all, a matter of degree, and the amount of power
which it is permissible to delegate to an agency varies with the
problem involved. . . . It will be necessary to do some systematic
thinking about the degree to which various categories of problems are
subject to prospective . . . [legislative] control. We need, in
short, some standards for when we should require standards. . . . [the
legislature] should channel its delegations of power with prospective
guidelines and standards to the greatest extent possible. But
ironically, the courts may have to work out the precise contours of
the requirement of prospective standards on an empirical, case-by-case
basis, . . . ." (p. 587)
Finally, and to be regarded, probably, as a position mediating between
the two extremes, is a recent analysis by Professor Abraham D. Sofaer in his
December, 1972 Columbia Law Review article, Judicial Control of Informal
Discretionary Adjudication and Enforcement, 72 Col.L.Rev. 1293.
Professor Sofaer injects a new dimension into the "standards" controversy
by observations which concentrate upon the opportunity for benefits deriving
from "individualized" rather than "standardized" approach. Professor Sofaer
says (1):
"Even if it were reasonable to expect the courts to insist on better
legislative standards, one cannot be confident that the results of
such action would be salutary" (p. 1307);
and (2) in respect to Professor Davis' position that the concern should be
not so much with prospective legislative standards as with administrative
rulemaking,
"The current focus on rulemaking as a means of limiting and
controlling discretion distracts needed attention from the use of
adjudication for such purposes. A decision is a standard, at least
potentially. If the relevant facts are included along with the
conclusion in a statement made available to interested persons, then a
decision will give guidance. . . . Decisions can narrow or control
discretion just as effectively as regulations: they can turn on the
special circumstances of a particular case; they can set forth
principles applicable to many cases; and they can even specify the
presence of a single factor as controlling." (pp. 1314, 1315)
_______________________________________________________________________________
[/411]
construed in relation to surroundings and objectives and (2) large latitude for
exercise of discretion and judgment by the arbitrators under a "standard" highly
generalized becomes the more readily tolerable (a) when the nature of the
subject-matter makes such breadth and generality necessary or desirable and (b)
ample procedural safeguards are afforded as additional checks to narrow the
likelihood of otherwise undetectable irresponsibility, arbitrariness or
invidious discrimination.
At the outset of the "Municipal Public Employees Labor Relations Law", the
legislature expressly declares the fundamental public policy upon which it has
settled. In purpose the policy is "to promote the improvement of the
relationship between public employers and their employees." As pragmatic
implementation of the purpose, the policy is to achieve it by the specific
"uniform" processes that (1) public employees shall have full rights "to join
labor organizations of their own choosing" and (2) such labor organizations are
"legally recognized" as the representatives of the employees to engage in
mandatory "collective bargaining" ultimately to achieve "terms and
conditions of employment" to be embodied in contracts. (Section 961) The
details of implementation are elaborated in various other provisions of the
statute proclaiming the protection of the right of the public employees to join
labor organizations (Section 963), defining unfair labor practices (Section 964)
and delineating with the greatest of care the details comprehended within the
generalized concept of the "obligation . . . to bargain collectively." (Section
965)
Most importantly, the legislature unequivocally clarifies that the obligation
to bargain collectively embraces, specially, that the parties (1) submit in good
faith to binding arbitration, as provided in Section 965, subd. 4, concerning
the area of "working conditions" -- exclusive of "salaries, pensions and
insurance" and, additionally, specifically as to teachers, "educational policies"
(Section 965, subd. 1, par. C) -- and (2)
". . . enter an agreement or take . . . other action . . . appropriate
to carry out and effectuate such binding determinations"
of the arbitrators. (Section 965, subd. 4)
Thus, the legislature's policy is clearly and expressly that there be an
improvement of the relationship between public employers and their public
employees by the mechanism that disputes unresolved by negotiations between the
parties shall not continue to fester but shall be forced, at least in part,
toward termination, upon the request of either party, by the binding arbitration
of such "working conditions" as are not "salaries, pensions and insurance" or
significant aspects of "educational policies." The binding arbitration is to
follow after the parties themselves have established the framework within which
the controversy is confined not only (1) by virtue of their discharge of their
obligation to "confer and negotiate in good faith" but also (2) through the
highly probable, if not mandated,[fn]5 resort to fact-findings and
recommendations developed by an independent panel.
With arbitrational authority placed within these explicitly stated contours,
the omission of the statute to delineate additional express criteria by which
the arbitrators are to make their selections among "working conditions" creates
no fatal deficiency. By what is said expressly, con-
____________________
5. The language of Section 965, subd. 3, as specifically interrelated with
and carried over into Section 965, subd. 4, forcefully suggests that before
either party may compel arbitration, such party, as a precondition to
arbitration, must have demanded the fact-finding process to have been
instituted and completed.
We need not here decide, however, whether fact-finding is a statutory
prerequisite to arbitration since it will suffice for present purposes that
the fact-finding process has been available and is highly likely to have
been invoked.
____________________________________________________________________________
[/412]
joined with what may be ascertained implicitly, the statute has prescribed an
adequate "standard" and "intelligible principle" to contain, and guide, the
arbitrators and to allow effective scope to judicial review as a further check
upon arbitrariness.
The statute plainly contemplates that the arbitrators shall act reasonably
and fairly to resolve the dispute in terms of the respective positions which
have been (1) developed by the parties in negotiations, including independent
fact-finding, (2) represented by the parties in the issues presented to the
arbitrators for decision, and (3) further supported by evidence taken out during
the hearing -- the statute making abundantly clear that the entire hearing
procedure and the statutory specifications regarding the taking of evidence are
calculated to achieve relevance "to the issues represented to . . . [the
arbitrators] for determination." (Section 965, subd. 4)
Unless we would destroy all significance in the expressed legislative policy
that binding arbitration is an implementing method "to promote the improvement
of the relationship between public employers and their employees", it must be
held an implicit minimal injunction of the statute that the arbitrators act
reasonably and fairly to effect accommodation within the bounds developed by the
parties and the positions asserted by them. Surely, unless arbitrators act
responsibly and with fairness and reasonableness to accommodate the interests of
the parties, crystallized in the issues presented for determination and as
buttressed by the positions asserted by the parties concerning the issues, and
as the parties will themselves have sharpened them through the negotiating
process and fact-finding, the arbitrators would frustrate, rather than achieve,
the promotion of "the improvement of the relationship between public employers
and . . . employees."
The foregoing analysis could suffice, without more, to sustain the binding
arbitration provisions here involved. The legislatively prescribed "standard"
or "intelligible principle" -- that the arbitrators shall act with
reasonableness and fairness to resolve the issues in a manner tending to promote
improvement of relationships -- is adequate. The conclusion is a fortiori when
we observe, further, that there are ample procedural safeguards concerning the
conduct of the hearing and provisions for judicial review by which the Court
"may, . . . affirm, reverse or modify any . . . binding determination
or decision based upon an erroneous ruling or finding of law."
(Section 972)
Precisely this generalized justification has been approved in an approach
taken by the Pennsylvania Supreme Court -- and as to a scope of subject-matter
including "salaries, pensions and insurance" and thus having far more direct and
extensive impact upon the general citizenry (in terms of their potential tax
burdens and the order of the priorities governmental public service provided
them) than we presently confront. In Harney v. Russo, 435 Pa. 183, 255 A.2d 560
(1969), and independently of the consideration that constitutional amendment had
made a "standards" analysis unnecessary, the Pennsylvania Court chose to deal
with the "delegation" issue before it on an assumption that adequate limiting
standards were necessary to avoid an unconstitutional delegation of
legislative power. Sustaining as sufficient the standard that the arbitrators
shall act reasonably to accomplish labor peace between the public employer and
its employees in the rendering of essential public services, the Court said:
"To require to a more explicit statement of legislative policy in a
statute calling for labor arbitration would be sheer folly. The great
advantage of arbitration is, after all, the ability of the arbitrators
to deal with each case on its own merits in order to arrive at a
compromise which is fair to both parties. The arbitrators' services
are particularly valuable where, as the legislative scheme here
requires,
_________________________________________________________________________
[/413]
the parties have been unable to reach an agreement
through collective bargaining. Certainly that is what the Legislature
envisioned in its attempt to insure labor peace in this critical
public area, and this is adequate . . . ." (p. 563)
As to the statute presently before us, we may observe that it goes further to
furnish, as reasonably implicit in its overall context, additional subsidiary
"intelligible principles" to guide the arbitrators in the discharge of their
functions as well as the courts in exercising judicial review.
In the total statutory context the limitations upon the jurisdiction of the
arbitrators to make binding determinations elucidate not only the drawing of a
jurisdictional line but also "intelligible principles" to guide the exercise of
judgmental selectivity within the areas jurisdictionally covered.
It is to be emphasized that the arbitrators are not denied all authority to
deal with "salaries, pensions and insurance." They are responsible to "recommend
terms of settlement", and they "may make findings of fact" thereon, "such
recommendations and findings . . . [to] be advisory only." There is thus
crystallized not merely an express differentiation of function but also an
implicit message as to the reason for the differentiation. Obviously because
they have direct and enormous impact, in terms of costs, not only upon the
ordering of priorities within the particular sphere of public services affected
by the controversy before the arbitrators but also upon the public employer's
general fiscal budgeting and appropriations for all public services, and the tax
burdens consequently imposed upon the citizenry, "salaries, pensions and
insurance" are withheld from binding determination by persons who are not
directly responsible to the electorate.
Since the legislature has thus manifested an overriding concern with the
impact of monetary costs upon the ordering of priorities not only within one
sphere of essential public services but as to all public services which the
public employer must provide, as well as upon the ultimate burden of taxation,
this legislative concern transposes to become one factor which the arbitrators
must consider in arriving at determinative decisions concerning any "working
conditions" which involve monetary costs.
Legislative intention that the arbitrators take into account the impact of
the money costs of those "working conditions" which are to be settled upon for
contractual incorporation is further manifested by the express legislative
mandate that not only as to "wages" or "rates of pay" but also "any other matter
requiring appropriation of money by any municipality" (emphasis supplied), it is
a pre-condition of the subject-matter's being eligible for collective bargaining
that
"the bargaining agent . . . serve written notice of request for
collective bargaining on the public employer at least 120 days
before the conclusion of the current fiscal operating budget."
(Section 965, subd. 1)
Similarly, the exclusion of "educational policies" from the jurisdictional
scope of binding arbitration, in the case of teachers, operates with carry-over
effect to provide additional subsidiary "intelligible principles" to guide
discretional selectivity by the arbitrators within the domain of the "working
conditions" which may be bindingly determined.
The concepts of "working conditions" and "educational policies" yield a
significantly clear core of meaning when they are regarded as the opposite poles
of a continuum toward the center of which there will be large degrees of
intermixture. Whether a datum is analytically classifiable as "working
conditions" rather than "educational policy", or vice-versa, will depend,
therefore, on (1) the decision made as to the legislature's intended direction
of emphasis and (2) recognition that notwithstanding the ultimate theoretical
classification decided upon, the substantive reality
_______________________________________________________________________________
[/414]
retains those features of the opposed classification which inhered in it as a
fact before the theoretical classification process was undertaken.
Hence, as a glass containing water to the halfway point may be said to be
"half empty" or "half full", dependent upon the direction of emphasis and, in
addition, no matter what the theoretical designation chosen, the reality
continues to remain both "half full" and "half empty", so will the appropriate
classification of a given subject-matter as "working conditions" or "educational
policy" be controlled by the presumed legislative emphasis; and the substantive
reality after classification will retain in fact the features of both
categories.
Thus, the process by which the arbitrators decide their jurisdiction to make
binding determinations simultaneously provides them with an "intelligible
principle" to guide their selection (from among the totality of "working
conditions" subject to their jurisdiction) of those which shall be contractually
incorporated. The arbitrators will be obliged to bear in mind that (1) the
legislature deemed "educational policies" to involve value choices so
fundamental that binding decisions concerning them should be made essentially
unilaterally and by persons directly responsible to the people and (2) for this
reason, even though the arbitrators might reasonably believe a concrete
item to embody a sufficient measure of the features of "working conditions" to
overbalance an admixture of "educational policy" -- thereby warranting a
conclusion that the subject-matter is to be classified as "working conditions"
and, as such, subject to binding arbitrational determinations by them -- the
arbitrators must acknowledge the continuing importance of such generalized
interests of the citizenry in the overall domain of education as might be
relevantly in play. The arbitrators must balance the impacts of such
"educational policy" overlays as inhere in fact (even though they might not have
been sufficient to require that the subject-matter be classified as "educational
policies" thereby to be totally excluded from collective bargaining and binding
arbitration) against the weight of the "working conditions" interests of the
teachers (e.g., their comfort and their ability to perform and work with
efficiency, effectiveness, enjoyment and satisfaction). Into this assessment
will enter, also, the consideration that arbitration is offered, policy-wise, as
a partial substitute for the denial to the teachers of a right to strike
and, hence, counterbalancing evaluation must be made in arbitration of what the
teachers might be capable of winning were they allowed resort to the economic
force of a right to strike.
In light of the foregoing discussion disclosing the existence of "standards"
or "intelligible principles" by which, expressly and implicitly, the authority
of the arbitrators is legislatively contained, a point cogently made by
Professor Louis L. Jaffe and based upon the premise that
"Delegation of power to administration is the dynamo of the modern
social service state" (p. 85)
must be stressed.
"If, . . ., the legislature has seen fit to create an organism for the
transaction of public business, its validity should be sustained if
one among competing logical implications reasonably supports it. At
such points the theory of separation is logically too infirm to
condemn any sensible or convenient arrangement. We should in sum keep
in mind that the great end of the theory is, by dispersing in some
measure the centers of authority, to prevent absolutism." Jaffe,
Judicial Control of Administrative Action (p. 32)
Thus, in the final analysis the potency of the presumption favoring
constitutionality of legislative action becomes determinative. As this Court
stressed in Crommett et al v. City of Portland, 150 Me. 217, 107 A.2d
_______________________________________________________________________________
[/415]
841 (1954) quoting Laughlin v. City of Portland, 111 Me. 486, 90 A. 318 (1914):
"'The Court is bound to assume that, in the passage of any law, the
Legislature acted with full knowledge of all constitutional
restrictions and intelligently, honestly and discriminatingly decided
that they were acting within their constitutional limits and powers.
That determination is not to be lightly set aside. It is not enough
that the court be of the opinion that had the question been originally
submitted to it for decision it might have held the contrary view.
The question has been submitted in the first instance to the tribunal
designated by the Constitution, the Legislature, and its decision is
not to be overturned by the court unless no room is left for rational
doubt. All honest and reasonable doubts are to be resolved in favor
of the constitutionality of the act. This healthy doctrine is
recognized as the settled policy of this court.'" (150 Me. pp. 231,
232, 107 A.2d p. 850)
The attack upon the binding arbitration provisions of the Municipal
Public Employees Labor Relations Law, as an unconstitutional delegation of
legislative powers, fails. In this respect, the statute is constitutionally
valid and must be judicially sustained.
III
Since this opinion upholds the legislative scheme of binding arbitration, the
additional issues are reached of asserted invalidity by virtue of improprieties
in the conduct of the arbitration and claimed "erroneous . . . [findings] of law
" in the decision.
III-A
The conduct of the arbitration is attacked on two grounds: (1) bias and
prejudice of the neutral arbitrator as manifested by language contained in the
arbitration decision, and (2) disqualification of the person appointed to the
arbitration panel by the Biddeford Teachers Association because he had been
". . . employed full time by the Maine Teachers Association with which
the Biddeford Teachers Association is affiliated and participated as
advisor . . . at various times in the bargaining process prior to the
arbitration."
Both grounds fail.
Notwithstanding that the arbitration decision sharply rebukes counsel for the
Biddeford Board of Education and persistently points up his lack of cooperation
to assist in the accomplishment of the purposes of the proceeding, the
totality of the record -- including, specifically, the cogent point that all
three arbitrators signed the arbitration decision -- shows an absence of bias or
prejudice attributable to the neutral arbitrator and likely to affect or in fact
tainting his conscientiousness, impartiality and fairness.
Similarly, no fatal infirmity was caused either in the composition, or the
decision, of the arbitration panel because the person designated by the
Biddeford Teachers Association might be regarded as "interested" in the
subject-matter or parties -- as an employee of the Maine Teachers Association
who had participated in the prior proceedings leading to the arbitration.
The statutory design for the selection of a tripartite arbitrational panel
reveals that the legislature was unconcerned with the "interests", pecuniary or
otherwise, of the two arbitrators to be designated by the parties. Only as to
the third arbitrator -- to be appointed by the two arbitrators selected by the
parties or, upon their failure to agree, by the American Arbitration
Association, -- is there a statutory specification of qualifications. The third
arbitrator shall be (1) "neutral" and (2)
". . . not, without the consent of both parties, . . . the same person
. . . selected as mediator pursuant to subsection 2 nor any member of
the
___________________________________________________________________________
[/416]
fact-finding board selected pursuant to subsection 3."
This omission of the statute to state qualifications for the party-designated
arbitrators, and the implications flowing negatively from the inclusion of
restrictive qualifications for the third arbitrator, establish that the two
party-appointed arbitrators are neither incompetent nor disqualified because
they might have interests concerned with the subject-matter of the arbitration,
or the parties, or which arise by virtue of participation in processes prior to
arbitration.
The type of arbitration here involved -- so-called "interests" arbitration to
establish particular terms and conditions of a contract (as distinguished from
"grievance" arbitration by which the terms of an existing contract are
interpreted or applied) -- suggests a sound policy reason for favoring, rather
than prohibiting, the designation by the parties of "interested" arbitrators.
In "interests" arbitration the function of the arbitrators is to make a
contract for the parties which they were unable to make for themselves. It is,
therefore, desirable that a degree of "bargaining" be part of the arbitration
process itself -- to assist in the ultimate settlement of contract terms and
conditions. Such continuance of bargaining into the arbitrational process,
including the reaching of accommodations usually necessary if the arbitration is
to result in an improvement of the relationships between the contesting parties,
is effectively achieved if the arbitrators appointed by the parties, precisely
because they are allowed to have "interests", may function as "advocates" along
the way to becoming, ultimately, decision-makers.
III-B
Particular aspects of the arbitration decision attacked as "erroneous . . .
[findings] of law" must now be evaluated.
III-B-1
Claim is made that the arbitrators' approval of the contractual clause:
"Except as otherwise specifically provided in this Agreement or
otherwise specifically agreed to in writing between the parties . . .",
to operate as a limitation upon the further contractual language:
"the determination of educational policy, the operation and management
of the schools and the control, supervision and direction of
the certificated staff are vested exclusively in the Board",
contravenes independent statutory mandates.
The argument is that the reference to "certificated staff" comprehends all
full-time principals, all substitute teachers and all part-time teachers
(because of the provisions of 20 M.R.S.A. 1751) -- with the consequence that
the above stated language of exception, it is said, effectively subjects
full-time principals, substitute teachers and part-time teachers to the
collective bargaining process as well as to coverage under a collective
bargaining contract -- in direct violation of the exclusions of 26 M.R.S.A.
962, subd. 6.
The argument misconceives the purport of the excepting clause under
consideration. In itself the clause is without operative effect to delineate an
appropriate bargaining unit or to bring any persons within the coverage of the
contract. Some separate and independent provision of the contract is requisite
for such purpose. Were the present contract to contain such separate
independent provision, subjecting to contractual coverage persons excluded by
Section 962, subd. 6, it would be that separate and independent provision which
should be attacked as invalid -- not the excepting clause under scrutiny. Yet,
the Biddeford Board of Education has pointed to no such separate independent
contractual provision. It is, therefore, specious for the Board to assail the
instant general language of exception, more particularly since this language
performs the important, and valid, function of clar-
_______________________________________________________________________________
[/417]
ifying that various portions of the collective bargaining agreement -- pursuant to
changes of prior law introduced by the Municipal Public Employees Labor Relations
Law --have limiting effect upon what (otherwise) would be unilaterally exclusive
powers of superintending school boards or committees.
Assault is made upon the arbitrators' approval of a contractual clause
establishing a "sick-leave bank." The "sick-leave bank" provision authorizes
each teacher, who is independently contractually granted 20 days annual sick
leave with unlimited accumulation, voluntarily to become a member of the "bank"
by a contribution, from his own allowable sick leave days, of one day -- the
total of contributions to create a maximum of 180 "banked" days. Any member of
the "bank" may draw from it to a maximum of 30 days in any one school year to
cover absence because of illness for a period in excess of said teacher's own
total "sick-leave" authorization. When the number of days in the "bank" is
reduced to a minimum of 30, the "bank" members are to contribute another one
day each to re-establish the 180 days "bank" maximum.
Contention is made that the arbitrational approval of such "sick-leave bank"
is error of law because (1) 20 M.R.S.A. 1951 must be interpreted to prohibit
the pooling, or transfer, of sick-leave days[fn]6 and (2) in any event, the
"sick-leave bank" is "effectively" a subject-matter relating to "salary" and,
hence, must be held legally excluded from the scope of binding arbitration. Both
points are without merit.
By its literal language 20 M.R.S.A. 1951 aims only to guarantee minimal
annual sick-leave and accumulativeness. Solely for this purpose, the statute
speaks, as it must to establish a unit of reference for computation of the
minimum, of a relationship to each individual teacher. There is, however, an
absence of language having reasonable tendency to show legislative insistence
upon the entirely different concept that sick-leave days must be personal to
each teacher and personally utilized, thereby to prohibit pooling or transfer of
sick-leave days. Neither does the manifest statutory purpose to mandate a
minimum amount of sick-leave days and accumulations suggest that the statute is
violated in spirit by recognition of the propriety of pooling or transfer --
whether of the statutory minimum or of contractual allowances in excess of the
statutory minimum.
The argument that in making binding determinations for contractual inclusion
of a "sick-leave bank", the arbitrators exceeded their jurisdiction because the
"sick-leave bank" is really a form of "salary" (concerning which arbitrators are
authorized to act only advisorily) is likewise fallacious for error in its
premise.
"Salary", as ordinarily conceived, reasonably connotes an actual, affirmative
regular payment of benefits (usually in monetary form) in exchange for work or
services. Measured by such concept the "sick-leave bank" does not lend itself,
reasonably, to a classification as "salary."
Independently of the "bank" plan, the public employer is contractually
committed to "sick-leave" to a theoretical maximum for each teacher of 20 days
and unlimited accumulativeness. By the "bank" arrangement any individual
teacher "member" derives opportunity for sick-leave enjoyments
____________________
6. 20 M.R.S.A. 1951 reads: "Each administrative unit operating public
schools within the State shall grant all certified teachers, except
substitute teachers as defined by the commissioner, a minimum annual sick
leave of 10 school days accumulative to a minimum of 90 school days without
loss of salary. Each administrative unit employing teachers who have unused
sick leave accumulated in their previous positions shall accept up to 20
days of such sick leave to be transferred to the employing administrative
unit, said sick leave to be credited and made effective upon achieving
continuing contract status in the new employing unit. Any other plan of
sick leave which, in the opinion of the state board, provides at least equal
benefits may be approved in lieu thereof. Full-time teachers assistants and
teachers aides shall be granted minimum annual sick leave of 10 school days."
_______________________________________________________________________________
[/418]
in excess of said teacher's otherwise allowable maximum. And it is true that such
"benefit" to individual teachers is achieved through the device of limited
pooling and transfer arrangements among teachers from the aggregate of
sick-leave days authorized for all teachers without causing need that this
aggregate maximum be exceeded.
Yet, it must be recognized that the aggregate maximum sick-leave days
theoretically authorized for all teachers, in the absence of a sick-leave bank
and should each teacher be permitted sick-leave days only on a personal basis
without pooling and transferability, are not usually totally claimed in
practice. Thus, without the "sick-leave bank" the public employer would
ordinarily have the "benefit" that of the total sick-days authorized for all
teachers a residual number remain unused. This "benefit" to the public employer
is impaired by operation of the sick-leave "bank" insofar as transfers from the
"bank" among individual teachers, even though within the aggregated maximum
allowed for all teachers, tends to reduce the number of ultimately unclaimed
sick-leave days; and this reduction is to be regarded as an economic "cost" to
the public employer.
To categorize such "economic benefit" to any individual teacher and "economic
cost" to the public employer as "salary" to the teacher "paid" by the public
employer, however, would be to pervert the ordinary, plain meaning of "salary."
It would be to transform the ordinary connotations of "salary" -- directness,
regularity and actuality of payment -- into that which is indirect, sporadic and
fortuitous. No sound reason appears suggesting that the legislature intended
that "salary", as used in the Municipal Public Employees Labor Relations Law,
should carry such artificial and distorted meaning.
The provisions for "sick-leave bank" are thus not reasonably to be
regarded as a form of "salary." The arbitrators acted within their jurisdiction
when they bindingly determined that the "sick-leave bank" should be incorporated
as a term of the contract.
III-B-2
Attacks upon other facets of the arbitrational decision are comprehended
within the generalized claim that they are errors of law because the arbitrators
exceeded their jurisdiction by purporting to make binding contractual
determinations on specific matters of "educational policies."
Since the exclusionary concept of "educational policies", and its specific
relationships to "working conditions" as the inclusionary statutory concept for
collective bargaining and binding arbitration, will provide the foundation for
subsequent analysis, a preliminary exposition of general guidelines will be
helpful.
As already observed (ante at p. 413), "educational policies" and "working
conditions" may be reasonably conceived as categories defining areas with
essential purity at the extremities but with intermediate zones of substantial
intermixture. Thus, in the controversies between teachers and their public
employers (currently prevalent throughout the country), even if some of
the concrete items in dispute may be readily classifiable at the pure extremes
of "policies" or "working conditions", it is undeniable that by far the major
portion lie in the intermediate areas with substantial intermixings.
How, then, is exclusionary and inclusionary classification under the Maine
statute rationally to proceed? Again, as already discussed (ante at p. 413),
the key is found in ascertainment of the legislatively prescribed direction of
emphasis by which particular features of one classification must be considered
legislatively subordinated to factors of the opposed classification.
The legislative language on its face sufficiently offers an answer for these
purposes. The crucial words appear in Section 965, subd. 1, par. C. After
first clari-
_______________________________________________________________________________
[/419]
fying that the obligation to bargain includes the duty
"To confer and negotiate in good faith with respect to wages, hours,
working conditions and contract grievance arbitration . . .",
the statute immediately thereafter specifies, in particular relationship to the
public employers of teachers, the exception that
"public employers of teachers shall meet and consult but not
negotiate with respect to educational policies . . . ."
Had the legislature seen fit to end its recitation at this point, it might be
held a reasonable conclusion that the concept of "educational policies" was
legislatively intended broadly to mandate continuance of the unilaterally
exclusive powers of school boards to "supervise" and "manage" the public schools
-- as such powers had been traditionally conferred by statute prior to the
enactment of the Municipal Public Employees Labor Relations Law; and that,
therefore, any concrete item tending to impinge upon any area ordinarily
conceived as "supervision" or "management" must be excluded as an appropriate
subject of mandatory collective bargaining regardless of its concomitant
relationships to the "working conditions" of teachers.
It is of extreme significance, therefore, that in Section 965, subd. 1, par.
C the legislature revealed that it was not content to leave the language as
above set forth -- thereby to open the door to the extreme
"exclusive-management-prerogatives" interpretation above indicated. On the
contrary, the legislature was careful, explicitly and definitively, to insert
additional language having strong tendency to show that "educational
policies" was legislatively intended to be restrictively, not broadly, conceived
-- specifically that "for the purpose of this paragraph" the calculated meaning
is that
"educational policies shall not include wages, hours, working
conditions or contract grievance arbitration."
Such double emphasis by the legislature upon the overriding importance of the
concept of "working conditions" in relation to the collective bargaining
process, -- first, that by affirmative definition teacher "working conditions"
are explicitly included within mandatory collective bargaining and, second, that
by negative exclusion "working conditions" are eliminated from the limitational
effects of "educational policies" -- signifies, most clearly in my view, a
legislative design that the general doctrine of "unilaterally exclusive
managerial prerogatives" must not be permitted to operate as an instrumentality
by which all practical substance may be scooped out of the concept of teacher
"working conditions", to transform teacher collective bargaining -- in marked
contradistinction to the collective bargaining of all other public employees --
into a litany noble in sound but hollow in reality.
More particularly, I interpret such double legislative emphasis upon the
"working conditions" of teachers to mean that the legislature intended that
teacher "working conditions" shall be bilaterally negotiable in collective
bargaining and subject to binding arbitration (except for "salaries, pensions
and insurance") notwithstanding that they touch upon one specific "managerial"
function with which, as a practical matter the "working conditions" of teachers
are almost invariably interconnected -- i.e., the organization, supervision,
direction and distribution of working personnel. Since decisions concerning
almost every "working condition" of teachers will tend to encroach upon the
"managerial" organization, supervision, direction or distribution of the working
personnel, were this single facet of "managerial" functioning to be permitted to
accomplish, under the category "educational policies", a per se automatic
exclusion of teacher "working conditions" from the collective bargaining
process, there would result precisely that emasculation of "working conditions"
as a mandatory subject of collective bargaining and of binding arbitration
which, as above indi-
______________________________________________________________________________
[/420]
cated, the legislature -- by its specially reiterated emphasis upon "working
conditions" -- must reasonably be interpreted to have sought to prevent.
Thus, (1) negatively, not only must impact upon the organization,
supervision, direction and distribution of personnel be held insufficient, per
se, to exclude items related to teacher "working conditions" as proper matters
of collective bargaining and binding arbitration but also, (2) affirmatively,
the reasonably manifest legislative intention must be held to be that other
contacts of such items with other functions generally cognizable as "managerial"
and "policy-making" can subordinate the "working conditions" features, and
accomplish an exclusion from negotiability and binding arbitration, only if, on
balance, their quantitative number or qualitative importance, or both, are found
significantly substantial to override the prima facie eligibility for collective
bargaining and binding arbitration established by the presence of reasonable
relationships to "working conditions."
"Class Size"
By such general approach to the application of the "working conditions" --
"educational policies" dichotomy, and as an initial illustration of the
technique in operation, I conclude that the concrete item of "class size" lies
within "educational policies" -- excluded from collective bargaining and binding
arbitration.
Although the size of a class to be taught by a given teacher plainly and
seriously affects teacher "working conditions", the impacts of "class size"
overlap into a number of "managerial" and "policy" areas which are of
substantial qualitative importance. "Class size" requirements directly involve
considerations not merely of organization, supervision, direction and
distribution of personnel but also of the needs for additional school building
construction or other types of capital outlays, the current population trends,
the appropriate use of technological developments (such as television or other
electronic teaching aids) and the swings in educational philosophies and
theories and the manner of their implementation.
Here, then, (1) "working conditions" features are so intimately entwined
with an abundant plurality of important "managerial" and pure "policy" elements
that "class size" must be deemed to be an integral complex of "educational
policies" and "working conditions" -- incapable of separation to allow the
"working conditions" factors to be negotiated in isolation and (2) with "class
size" thus treated as an inseparable unit, it cannot, as a unit, qualify for
collective bargaining and binding arbitration because the weight of the
"educational policies" factors contained in it are sufficiently heavy to
override the impacts upon the "working conditions" of teachers.
The arbitrators exceeded their jurisdiction in making binding determinations
as to "class size."
"Length of a Teacher's Working Day"
Similarly, the length of the school day in terms of the number of hours the
teacher will be required to teach or be in attendance at school, is a matter
concerning which the "working conditions" interests of teachers are
fundamentally inseparable from a plurality of non-teacher considerations
involving important "managerial" and "policy" areas.
While it is clear that the number of hours which any individual teacher shall
be required to work in a given day need not coincide with the number of hours
the students are obliged to be in attendance at school, this fact by itself
fails to establish that the length of the teacher's school day may be
isolated as a proper subject of mandatory collective bargaining. Closer scrutiny
reveals that were the length of the teacher's school day negotiable in
collective bargaining and in a given situation were economic conditions to
preclude the hiring of additional teaching personnel, negotia-
____________________________________________________________________________
[/421]
tions aimed at shortening the work-day of teachers would necessarily become
directed toward seeking alternatives to the hiring of additional personnel.
There would thus eventuate an exploration into such areas as the utilization of
newer educational techniques by which a teacher's actual presence or participation
is rendered unnecessary -- e.g., electronic aids, open class rooms, team teaching
programs and subject-matter restrictions or modifications. In this manner,
significantly more substantial intrusions into "policy" areas, -- over and above
encroachment simply upon the "managerial" supervision, organization, direction
and distribution of personnel -- become involved.
Thus, the length of the teacher's working day is closely and heavily
interwoven with judgments bearing upon the welfare of the students, -- as
reflected in the ultimate quality of their education and the extent to
which it may be improved or weakened by use of various types of substitutes,
technological or otherwise, for the living presence and active participation of
teachers. Such foundational educational value judgments cannot reasonably be
subordinated to the overlay of teacher "working conditions", and for this
reason, the length of the teacher's working day must be held, fundamentally,
that kind of "educational policies" subject-matter which was legislatively
intended to remain outside the scope of mandatory collective bargaining and,
therefore, of binding arbitration.
The arbitrators exceeded their jurisdiction in making binding determinations
concerning the length of the teacher working day.
"Scheduling and Length of School Vacations and of the Commencement and
Ending of the School Year"
On similar reasoning, questions concerned with the scheduling and length of
school vacations and the commencement and ending of the school year (insofar as
such calendar aspects, respectively, are directed at teacher attendance at
school) must be held matters of "educational policies" and, as such,
non-negotiable and beyond the scope of binding arbitration.
Here, again, the "educational policies" predominance arises not
merely because of an impingement upon the "managerial" function of organizing,
supervising, directing and distributing personnel but mainly because of a
substantial intermixing of judgments transcending teacher interests and
embracing important interests of the general citizenry. Since the teaching
staff is reasonably to be required to be at school, minimally, whenever the
students must attend, the commencement and termination of at least such minimum
school year for the teachers, and the scheduling and length of intermediate
vacations, will be settled by such calendar arrangements as are to be fixed for
student attendance.
Into the calendar arrangements for students enter considerations and
decisions involving the plans and interests of families, the need to arrange for
the presence of all non-teaching personnel who function while students are in
attendance at school and the interests and concerns of all other parts of the
community related to, or affected by, the times when students will be in
attendance at school or on vacation.
Thus, the commencement and termination of the school year and the scheduling
and length of intermediate vacations during the school year, at least
insofar as students and teachers are congruently involved, must be held matters
of "educational policies" bearing too substantially upon too many and important
non-teacher interests to be settled by collective bargaining or binding
arbitration.
The arbitrators exceeded their jurisdiction in purporting to make binding
determinations concerning this subject-matter.
"Pre- and post-school Day Hours and pre- and post-school Year Days for Teacher
Attendance at School"
On the other hand, questions relating to the attendance of teachers at
school at times other than when the students will be
___________________________________________________________________________
[/422]
in attendance are to be regarded as "working conditions" of teachers lacking
significant relationships to non-teacher interests of a quantitive and
qualitative magnitude sufficient to negate collective bargaining or binding
arbitration. The negotiation or arbitration of questions related to whether and
when teachers shall be at school, even though the students are not in attendance,
impinge only upon that "managerial" function concerned with the organization,
supervision, direction and distribution of personnel. As above emphasized, this
single "managerial" factor must be regarded as insufficient per se to establish
the kind of involvement with "educational policies" requisite, statutorily, to
remove an item substantially related to teacher "working conditions" from the
sphere of mandatory collective bargaining or of determination by binding
arbitration.
The arbitrators acted properly within their jurisdiction in making binding
determinations concerning pre- and post-school day hours and pre- and
post-school year days for teacher attendance at school (at times other than when
the students would be in attendance).
"Teacher Aides for non-teaching 'House-keeping' Functions"
By the same analysis the issue of the use of teacher aides to monitor play
grounds, supervise lunch periods, load and unload buses and other non-teaching
types of activities must be held a subject proper for collective bargaining and
within the scope of binding arbitration.
Unquestionably bearing heavily upon the work load of teachers, the issue of
teacher aides for various "housekeeping" functions touches upon other areas
ordinarily deemed to affect "policy" -- over and above a narrow impingement upon
"managerial" organization, supervision, direction and distribution of
personnel -- only in terms of the monetary costs of hiring the additional
non-professional personnel. That money costs may become involved -- with
potential for impact upon not only the ordering of educational priorities but
the overall budgeting appropriations and tax rate of the public employer -- does
not suffice, ipso facto, to exclude from negotiability or binding arbitration
any concrete item substantially related to "working conditions." (See ante, p.
413) Rather, these monetary costs of various "working conditions" are operative
as one consideration providing guidance to the arbitrators as they engage in the
balancing of facts leading to the accommodations they make when they select the
particular terms to be fixed as contractually binding.
The subject-matter of teacher aides for non-teaching "household" tasks is
negotiable and subject to binding arbitration.
In making binding determinations of the issues, the arbitrators acted within
their jurisdiction.
"Specialist Teachers for Specific Types of Subject-matter Taught or
Services Offered"
Analysis discloses that the question of the employment of "specialist"
teachers for particular subjects being taught or services being offered
students is a matter bilaterally negotiable in collective bargaining and
included within the sphere of binding arbitration.
The issue, here, is posited not as requiring decision whether a particular
subject, such as art, music or remedial reading is to be taught as part of the
curriculum or whether a special type of "service" (such as guidance counseling,
remedial reading or library) is to be offered. The assumption is that it has
been settled that art, music, remedial reading, guidance counseling and library
services are to be taught as subjects or offered as services.
The question is, rather, who, shall do such teaching or provide such
services -- specifically, whether it shall be an additional ancillary task to be
borne by regular class-room teachers who have other pri-
____________________________________________________________________________
[/423]
mary teaching and class-room responsibilities or whether it shall be made the
primary responsibility of teachers who are fundamentally free of generalized
regular teaching obligations and who are to concentrate as specialists in a
subject-matter which involves special skills or knowledge.
Clearly, to the extent that art, music, remedial reading, guidance
and counseling or acting as a librarian do involve special types of skills and
knowledge, to have regular teachers assume the additional ancillary
responsibility for such specialities not only increases the work load of the
regular teachers, as such, but also tends, indirectly, to cause them additional
difficulties; it tends to introduce a potential for frustrations and
dissatisfactions should regular teachers be unable to develop the special
skills, or competencies, for which they are thus given ancillary responsibility.
To have these "working conditions" aspects determined by bilateral
negotiation and ultimately (should it be necessary) by binding arbitration, as
with the issues of teacher aides for "household" tasks, impinges upon
"managerial" and "policy" areas -- over and above an involvement with the
organization, direction and distribution of personnel -- basically only in terms
of the additional monetary expenditures which might be required to arrange for
such "specialist" teachers.
Hence, as with teacher aides for "house-keeping" tasks, the contacts with the
"managerial" and "policy" realm must be held insufficient to override the prima
facie eligibility for negotiation and binding arbitration established by the
important "working conditions" factors present. That money expenditures might
be involved does not preclude bilateral negotiation or binding arbitration
but rather is only one of a plurality of considerations which enter into the
ultimate determination by the arbitrators of whether, and to what extent,
"specialist" personnel for the above designated "special" subjects or services
shall be used rather than to have these "special" subjects or services (art,
music, guidance counseling, remedial reading and library) be taken on as
additional ancillary responsibilities of regular teachers who have other primary
teaching tasks to perform.
The arbitrators acted within their jurisdiction in making binding
determinations concerning these questions of "specialists" for "special"
subjects or services.
III-B-3
The Biddeford Board of Education has levelled a wide ranging onslaught
against all of the determinations in the arbitrational decision the
implementation of which entails monetary expenditures. The argument is that
since the monies for the conduct of the public schools come from the municipal
legislative body empowered to make appropriations, the arbitration panel had
lawful jurisdiction to settle issues requiring money expenditures for their
implementation not bindingly but subject only to a contingency that adequate
funds will be provided by appropriations.
The argument is unacceptable. It is fundamentally at odds with the basic
pattern and objectives of the Municipal Public Employees Labor Relations Law.
As fully explained (ante at p. 413), "working conditions" which are other
than "salaries, pensions and insurance" are placed within the jurisdiction of
arbitrators to settle as the terms and conditions of contracts which are to have
fully binding legal effect, notwithstanding that they can, or will, require
expenditures of money. This is the only meaning reasonably attributable to the
explicit provisions of Section 965:
". . . with respect to a controversy over subjects other than
salaries, pensions and insurance, the arbitrators shall make
determinations . . . and if made by a majority . . . such
determinations will be binding on both parties and the parties will
enter an agreement or take whatever other action that
_______________________________________________________________________________
[/424]
may be appropriate to carry out and effectuate such binding determinations
. . . ."
The position being asserted by the Biddeford Board of Education is contrary to
this plain statutory language.
Moreover, the position is irreconcilable with the full implications of the
legislature's carefully stated differentiation between the function of the
arbitrators (1)
". . . with respect to a controversy over . . . salaries, pensions and
insurance . . .",
that the arbitrators in such controversy
". . . will recommend terms of settlement and may make findings of
fact; such recommendations and findings . . . [to be] advisory only . . ."
(Section 965) but (2) otherwise,
". . . with respect to a controversy over subjects other than
salaries, pensions and insurance . . ."
shall, by majority,
". . . make determinations . . . binding on both parties . . ."
and to be embodied in an "agreement" to be entered into by the parties.
This legislative concern to point up such differences in arbitrational
functioning, dependent upon whether "salaries, pensions and insurance" are
involved, emphasizes precisely that (1) only as to the major items of money
expenditures represented by "salaries, pensions and insurance" is the
contingency of the need for appropriations recognized, thereby to require that
the arbitrators act only as an advisory body making recommendations but (2)
concerning all items negotiable in collective bargaining other than "salaries,
pensions and insurance", and even though such other items can and, will, involve
money expenditures when they are to be implemented, the arbitrators are
empowered to impose fully binding legal obligations. As to these necessary
monetary expenditures resulting from such binding decisions of the arbitrators,
it becomes the responsibility of the school board, as well as the appropriate
legislative body of the municipality, to make such arrangements as will ensure
that these legal obligations will be met. Cf. Providence Teach. U. Local 958 v.
School Committee, 108 R.I. 444, 276 A.2d 762 (1971).[fn]7
III-B-4
A last issue raised for decision concerns the legal effects under the
Municipal Public Employees Labor Relations Law flowing from the binding
determinations of arbitrators acting pursuant to Section 965, subd. 4 -- in
particular, during the period allowed for instituting review (under Section 972)
and, if review has been sought, while it is pending.
By the express language of the statute, when made
". . . by a majority of the arbitrators . . . determinations will be
binding on both parties and the parties will enter an agreement . . . to
____________________
7. To assist the public employer (including its school board and
legislative body) to deal with the legal obligations which will result if
(1) issues as to "salaries, pensions and insurance" are settled by
collective bargaining, or (2) any other matters requiring the appropriations
of money, are settled by collective bargaining or, if collective bargaining
has failed, by the binding determinations of arbitrators, the Municipal
Public Employees Labor Relations Law has inserted a special provision
affording the public employer the benefit of specific timing for all
collective bargaining which involves mone expenditures. The statute
explicitly provides: "Whenever . . . any [matters] requiring appropriation
of money . . . are included as a matter of collective bargaining . . ., it
is the obligation of the bargaining agent to serve written notice or request
for collective bargaining on the public employer at least 120 days before
the conclusion of the current fiscal operating budget . . . ."
_______________________________________________________________________________
[/425]
carry out and effectuate such binding determinations."
Hence, that at least two arbitrators have in fact settled upon
determinations becomes the controlling factor by which their determinations
become binding and which brings into play the legal obligation of the parties to
incorporate the determinations into an agreement. The statute omits to
establish an automatic suspension of legal consequences because of the potential
that the arbitrational decision might embody errors causing them to be reversed
or modified on review.
Any such suspension of "bindingness" or of legal obligation is allowed, by
the statutory language, to come into play only to the extent that in
Section 972[fn]8 the statute prescribes that
"review shall be sought in accordance with Rule 80B of the Rules of
Civil Procedure"
and that
"an appeal [from the Superior Court's review] may be taken to the law
court as in any civil action."
As to any review "in accordance with Rule 80B . . .," the Rule
plainly provides:
"Except as otherwise provided by statute, the filing of the complaint
does not stay any action of which review is sought, but the court may
order a stay upon such terms as it deems proper."
The present statute fails to provide otherwise and, on the contrary, tends
clearly to indicate that until a Court ordered stay is accomplished pursuant to
Rule 80B, the arbitrational determinations are immediately and continuingly
binding and the parties are under immediate and continuing legal duty to enter
an agreement which incorporates them.
Accordingly, regardless of whether it is, or will be, claimed that
determinations of arbitrators contain an "erroneous ruling or finding of law"
subjecting the determinations to potential reversal or modification upon review,
the determinations are, and remain, binding in their legal effect and the
parties are, and remain, under the legal duty to incorporate them in a signed
agreement until the party asserting a right of review achieves the intervention
of judicial action in the form of such "stay" as the Superior Court sees fit to
order in the circumstances.
CONCLUSION
I would remand the cases to the Superior Court for action, as follows:
(1) In Docket No. 2688-71, City of Biddeford by its Board of Education v.
Biddeford Teachers Association, et als, the decision of the arbitration panel of
November 17, 1971 is to be modified by striking therefrom the determinations
concerning "Class Size", "Length of a Teacher's Working Day" and "Scheduling and
Length of School Vacations and of the Commencement and Ending of the School
Year."
After such modification has been effected, the Superior Court should enter
Judgment affirming the decision of the arbitrational panel (as modified).
(2) In Docket No. 2690-71, Biddeford Teachers Association v. Board of
Educa-
____________________
8. By P.L. 1970 Chapter 578, 7, a new section, Section 972, was added to
govern the review of binding determinations of arbitrators.
The consolidated matters now before us are governed by these statutory
changes effective (by emergency enactment) as of February 9, 1970.
It is to be observed that at the Special Session of the Legislature convened
from January 24, 1972 to March 10, 1972, other changes were made affecting the
remedies for unfair labor practices which could, in future situations, have a
relationship to matters arising from binding arbitration and
interrelationships between enforcement proceedings and the review
proceedings provided by Section 972.
_______________________________________________________________________________
[/426]
tion of City of Biddeford, et als, the case, as remanded, is to await the entry of
judgment in case No. 2688-71 aforesaid. Thereafter, the Superior Court shall
proceed in such manner as the subsequent conduct of the parties might make
necessary or appropriate -- all in accordance with the principles enunciated in
this opinion.