This Law Court case is 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
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[/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."
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[/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)
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[/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.
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[/1101]
The entry is:
Appeal denied; the judgment vacating the award of the arbitrator
is affirmed.
ARCHIBALD, J., did not sit.