This Law Court case in not an appeal of an MLRB decision.
It has been placed on the Board's website because it is a 
noteworthy case involving Maine's public sector collective 
bargaining laws.


MAINE SUPREME JUDICIAL COURT

                                
                        BOARD OF DIRECTORS OF MAINE 
                           SCHOOL ADMINISTRATIVE 
                              DISTRICT NO. 33 
                        
                                    v. 
                        
                      TEACHERS ASSOCIATION OF MAINE 
                           SCHOOL ADMINISTRATIVE 
                              DISTRICT NO. 33
                        
                             October 27, 1978
                        
                        
     Before McKusick, C. J., and Pomeroy, Wernick, Delahanty,
Godfrey and Nichols, JJ.

WERNICK

[/1097]  
     This is an appeal by the Teachers Association of Maine School 
Administrative District No. 33 (the Association) from a judgment of the 
Superior Court (Aroostook County) entered October 6, 1977, which, 
pursuant to 14 M.R.S.A.  5938.1.C (Supp. 1978), vacated an arbitration 
award on the ground that the arbitrator exceeded his powers.
     Judy Paradis was employed in the Maine School Administrative 
District No. 33 (M.S.A.D. No. 33), St. Agatha, public school system as a
teacher with a continuing contract 
__________________________________________________________________________

[/1098]  
(as distinguished from a teacher having a probationary contract).  See 
20 M.R.S.A.  161(5) (Supp.1965 to 1978).  In May, 1976, she received a 
letter from the Superintendent of Schools which stated:
     
     "On May 7, 1976, at a regular meeting, the School Directors, 
     acting upon my recommendation, voted to eliminate the 
     teaching position you hold in M.S.A.D. No. 33.
     
     "I regret to inform you that, consistent with the action
     of the School Directors, you are hereby notified that
     the teaching position you now hold in M.S.A.D. No. 33 is
     eliminated, effective with the close of the (1975-1976)
     school year.  And that, your teaching contract with
     M.S.A.D. No. 33 will be terminated 90 days after the
     date of this notice, as provided in subsection 161,
     paragraph 5 of Title 20 of the Maine Revised Statutes."

     Commencing May 14, 1976 the Association instituted procedures on 
behalf of Judy Paradis which purported to be "grievance" procedures 
under the collective bargaining agreement between the Association and 
the Board of Directors of M.S.A.D. No. 33 (School Board).  When no 
resolution of the issue resulted, the Association invoked arbitration 
as the ultimate process under the collective bargaining agreement to 
achieve a final and binding resolution of a "grievance."
     A single arbitrator heard the matter, and he made an arbitration 
award on December 28, 1976.  The School Board then filed in the Superior 
Court an "Application to Vacate the Arbitration Award"  and the award 
was vacated.
     By their collective bargaining agreement the parties placed the 
following limitations on the scope of "grievance arbitration": (1) the 
subject-matter which may constitute a "grievance" is
     
     "any alleged violation of this Agreement or any dispute
     with respect to its meaning or application" (Article IV-
     B 1 of the Agreement);

and (2)
    
     "[the] arbitrator will be without power or authority
     to make any decision which requires the commission of an
     act prohibited by law or which is violative of the terms
     of this Agreement. . . The arbitrator shall have no
     power to alter, add to or detract from the provisions of
     the Agreement." (Article IV-E 2 of the Agreement)

     Throughout the proceedings before and during arbitration Article V-C 
of the collective bargaining agreement was the focus of the controversy.  
It reads:
     
     "Whenever it becomes the intention of the administration
     of M.S.A.D. No. 33 to recommend to the Board the
     elimination of a teaching position, the administration
     will notify the teacher and the Association, in that
     order, of the intent and will meet with representatives
     of the Association to discuss the elimination of such 
     position prior to final action being taken by the Board.
     
     "Whenever teaching positions are eliminated in M.S.A.D.
     No. 33 it will be the policy of the administration to
     retain those teachers who by training, seniority and
     experience are most capable of meeting student needs in
     both the short and long run.  Emphasis will be placed on
     maintaining a balanced staff."

The Association maintained that Judy Paradis had a "grievance under 
Article V-C, as constituted by her claim that the "training, seniority 
and experience" factors therein specified regarding the "[retaining] . .. 
[of] teachers" were violated when, choosing between her and another 
teacher having only a probationary contract and less seniority, the 
School Board terminated Judy Paradis and retained the other teacher.
     The arbitrator sustained the Association's claim, finding that the 
Board had violated the "training, seniority and experience factors 
stated in Article V-C in terminating Judy Paradis and retaining the 
probationary teacher having less seniority.  He ordered that Judy Paradis
be
    
     "reinstated with full benefits and rights and made
     whole retroactive to the date of her termination"
 
as well as that

     "[her] file . . . be expunged of all materials related
     to this termination."
__________________________________________________________________________

[/1099]  
     We deny the Association's appeal from the judgment of the Superior 
Court, holding that that Court acted correctly in vacating the 
arbitrator's award.
     We decide that the collective bargaining agreement failed to make 
the matters here in controversy a "grievance" subject to the arbitration 
process for final and binding resolution.  By adjudicating the merits 
of the dispute, therefore, the arbitrator acted beyond the powers 
conferred by the collective bargaining agreement, and it was proper that 
his award be vacated pursuant to 14 M.R.S.A.  5938.1.C (Supp.1978).  
Superintending School Committee of the City of Portland v. Portland 
Teachers' Association, Me., 338 A.2d 155 (1975).
     The most salient feature of Article V-C, which is the
textual language here determinative of arbitrability, is that its first 
sentence makes plain that "the administration" of M.S.A.D. No. 33 is a 
part of the governing hierarchy of the District separate and distinct, 
as an entity and in function, from the Board of Directors.  To establish 
this point we again quote the language of the first sentence, adding 
emphasis to assist in the analysis:
    
     "Whenever it becomes the intention of the administration
     of M.S.A.D. No. 33 to recommend to the Board the
     elimination of a teaching position, the administration
     will notify the teacher and the Association, in that
     order, of the intent and will meet with representatives
     of the Association to discuss the elimination of such
     position prior to final action being taken by the
     Board."

The words emphasized show expressly, and unmistakably, that "the
administration" is regarded as separate from the "Board of Directors" 
and also, as to the matters here under consideration, has a distinctly 
different function.  It is "the administration" which "[meets] with 
representatives of the Association" and then recommends to the Board of 
Directors.  Thereafter, it is the Board of Directors which alone takes 
the final action.
     Examination of the entirety of the collective bargaining agreement 
reveals that this conception of "the administration" as separate and 
distinct from the Board of Directors is the deliberate design of the 
collective bargaining agreement, not merely a linguistic fortuity in 
Article V-C.  Where relevant, the same separation consistently appears 
in the provisions of the agreement.
     Most significant and enlightening in this regard is Article XI.  
It bears the title, "Teacher-Administration Liaison", (emphasis supplied) 
and provides as follows:
         
     "A.  The Association shall select a Liaison Committee
     for each school building which shall meet with the
     Principal within a reasonable time following a request
     to meet, normally not more than once per month, to
     review and discuss local school problems and practices,
     and to play an active role in the revision or
     development of building policies.
     
     "B.  The Association's representative shall meet with
     the Superintendent within a reasonable time following a
     request to meet, normally not more than once per month,
     to review and discuss current school problems and
     practices." (emphasis supplied)

The language emphasized strongly indicates that the collective bargaining 
agreement identifies "the Administration" as consisting of those persons 
who act at levels below the top echelon of the Board of Directors, like 
"Principals" or the "Superintendent" (or assistant principals, department 
heads or Assistant Superintendents), and who, because they have 
supervisory responsibilities and exercise supervisory powers, are 
excluded from the collective bargaining unit by Article I-C of the 
agreement. [fn]1
____________________

1.  Other Articles in the agreement which confirm this separation
  between "the Administration" and the "Board of Directors" are the
  following,

       Article VI-H says:        
      "The Administration shall provide an annual pool
     of five (5) non-cumulative days from which the
     Association officers or their representatives may
     draw from, until expended, for Association business
     at the county or state levels.  These days shall
     total five (5) days for the Association and not per
     officer.  Whenever possible, the Association agrees
     to give forty-eight (48) hours advance notice to the
     Superintendent's office for all such days used and
     shall bear the cost of all such substitutes used on
     such days." (emphasis supplied)
    
     Article IX-D provides:
            
     "The Association recognizes the authority and
     responsibility of the Principal for disciplining or
     reprimanding a teacher for delinquency of
     professional performance.  If a teacher is to be
     disciplined or reprimanded by a member of the
     administration above the level of this person,
     however, he may, at his request, have a
     representative of the Association present."
     (emphasis supplied)
__________________________________________________________________________
         
[/1100]  
     By thus establishing that "the Administration" has existence and 
functions separate and distinct from the "Board of Directors" the 
collective bargaining makes abundantly clear that Article V-C fails to 
authorize as a "grievance", subject to final and binding arbitration, 
the ultimate action taken by the Board of Directors eliminating
"a teaching position", thus to eliminate the teacher who occupies that 
"position."  With "the administration" recognized as separate and 
distinct from the "Board of Directors", Article V-C must be taken as 
providing no more than that it will be the "policy" of the administration 
in formulating a recommendation to the Board of Directors to consider the 
"training, seniority and experience" of the teachers who could be 
affected (depending on which teaching position is selected for 
elimination), and also to take into account the necessities of 
"maintaining a balanced staff" and the capability of the teachers 
involved to meet "student needs in both the short and long run." Such 
expression of a "policy" for the guidance of lower-level personnel who 
have only an intermediate authority to make a "recommendation" to the 
Board of Directors, which alone has the power of decision, cannot 
reasonably be construed as a contractual prescription of a standard 
governing the Board's decision.
     Fortifying this conclusion is the further provision in Article V-C 
that the decision of the Board of Directors is "final action." (emphasis 
supplied)  Here, "final" fairly imports not merely that the Board's 
decision is the action of last resort within the hierarchy responsible to 
govern M.S.A.D. No. 33 but further that it is the ultimately definitive 
action and, therefore, not subject to review by the external process of 
"grievance" arbitration.
      Thus, the textual language of Article V-C, with complete internal 
harmony, establishes that no "grievance" arises by virtue of alleged 
deviation from, or misconception or misapplication of, the factors stated 
as "policy" to assist personnel acting at lower levels in formulating a
recommendation to the Board of Directors for its exclusive and ultimately 
determinative action.
     It was therefore beyond the power of the arbitrator to decide the 
merits of the controversy here involved.[fn]2
____________________
    
2.  The instant collective bargaining agreement does not
  purport in express, direct and unequivocal language to
  confer upon the arbitrator the exclusive power to make a
  final and binding determination of an issue of
  substantive arbitrability or otherwise to seek to
  preclude judicial consideration of such a question. 
  Hence, we do not hesitate to decide, here, that the
  issue of substantive arbitrability remained open for
  determination in the last analysis by a court.
    By mentioning this point we intimate nothing as to our
  position were the collective bargaining agreement to
  contain express language making unmistakably plain that
  the parties sought to exclude a judicial consideration
  of the question of substantive arbitrability. Although
  such a provision may be given effect in the private
  sector, see United Steelworkers of America v. Warrior &
  Gulf Navigation Co., 363 U.S. 574, 583 n. 7, 80 S. Ct.
  1347, 4 L. Ed. 2d 1409 (1960), a different approach may
  be required in the public sector where statutory
  prescriptions of public policy frequently, and
  substantially, limit or affect the scope of collective
  bargaining. For this reason, not only "interest" but
  also "grievance" arbitration, if contemplated as final
  and binding, may in many contexts be "institutionally
  incompetent to effectuate the requirements of statutory
  law . . . " See Lewiston Firefighters Association, Local
  785, International Association of Firefighters, AFL-CIO,
  et al. v. City of Lewiston, et al., Me., 354 A.2d 154,
  167 (1976), and therefore, despite contractual
  provisions expressly and plainly purporting to exclude a
  court determination of an issue of substantive
  arbitrability, sound public policy may demand that an
  arbitrator's determination of such question remain
  subject to judicial review. 
__________________________________________________________________________

[/1101]  
The entry is:

     Appeal denied; the judgment vacating the award of the arbitrator 
is affirmed.


ARCHIBALD, J., did not sit.