Supreme Judicial Court of Maine



Elden L. CHURCHILL, as Superintendent of Schools, S.A.D. # 49, et al.
                                
                              v. 
                                
                S.A.D. # 49 TEACHERS ASSOCIATION

                           
                        November 18, 1977                       


     Before DUFRESNE, C.J. and POMEROY, WERNICK, ARCHIBALD and
DELAHANTY, JJ.

     DUFRESNE, Active Retired Justice.[fn]1

[/188]  
     School Administrative District No. 49 (the District), organized and
certified pursuant to 20 M.R.S.A.,  216, entered into an amended 
collective bargaining agreement (agreement) with the School Administrative 
District No. 49 Teachers Association (Association) pursuant to 26 M.R.S.A., 
 965.  Article V(A) of the amended agreement contains the following 
"agency shop" provision:

        "As a condition of continued employment in S.A.D. #49, 
     non-members of the T.A. [Teachers Association] should pay their 
     equitable proportion of the cost of representation by the T.A.

        "Upon written authorization by the said teacher, the Board agrees
     to authorize the central office to deduct such fees, equal to but 
     not in excess of the equivalent of T.A. dues, and to submit same to 
     the T.A.

        "It shall be the sole responsibility of the T.A. to administer
     these provisions."

     A number of teachers, who belonged to the bargaining unit represented 
by the Association but were not members of the Association, refused to 
authorize the deduction of any fees from their wages in implementation of 
Article V(A) of the agreement.  At this turn of events, the Association 
requested from the Board of Directors of the District (Board) the 
termination of the employment contracts of the recalcitrant teachers and, 
when no action was being taken on its request, it initiated a grievance 
proceeding to enforce its demand.

     Before the grievance was scheduled to go to arbitration, however, 
the Superintendent of Schools of the District and the Board of Directors 
commenced the instant complaint in the Superior Court (Kennebec County) 
pursuant to 14 M.R.S.A.,  5951-5963 for the purpose of having a 
judicial determination respecting the validity of the reference "agency 
shop" provision of the agreement in the light of 20 M.R.S.A.,  473(4) 
and 26 M.R.S.A.,  963 and 964(1)(A), (B) and (2)(A).  The plaintiffs at 
the same time sought injunctive relief against the further processing of 
the alleged grievance through arbitration until the validity of the 
"agency shop" provision be established.
___________________

1.  Mr. Justice Dufresne sat at argument and participated in consultation
while he was Chief Justice, and, on order of his successor, Mr. Chief 
Justice McKusick, was empowered and authorized to continue his 
participation in the case in his capacity of Active Retired Justice.
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[/189]  
     The Association countered with a motion to dismiss the complaint
under Rule 12(b)(6), M.R.C.P. for failure to state a claim upon which 
relief can be granted, and on the further ground that the Court below 
lacked jurisdiction of the subject matter.

     The Superior Court Justice denied the Association's motion to dismiss 
the complaint and refused the plaintiffs' request for a stay of the 
arbitration proceeding.

     Feeling aggrieved by the Court's failure to rule on the validity of 
the legal issue -- whether the "agency shop" clause was valid -- and by 
the Court's deference to the arbitration process for its resolution, the 
plaintiffs filed a motion to report the question to the Law Court pursuant 
to Rule 72(c), M.R.C.P.[fn]2  Over the defendant's objection, the presiding 
Justice granted the motion by issuing the following order which, in 
pertinent part, reads as follows:

        "[The] Court being of the opinion that questions of law involved in
     said Order and Ruling ought to be determined by the Law Court before
     any further proceedings are taken therein and, on motion by the
     aggrieved party, . . .

        "It is ordered that this action be reported to the Law Court in
     accordance with Rule 72(c) and that all further proceedings related
     thereto be stayed pending decision of the Law Court."

     Procedural sufficiency of the report

     The appellee Association first bases its objection to the report of 
the case on the ground that the issue raised by the offensive court ruling 
was not specifically delineated therein.  We said in Collett v. Bither, 
1970, Me., 262 A.2d 353 at 354 that a trial judge may report an 
interlocutory matter upon the unilateral request of an aggrieved party, 
pursuant to Rule 72(c), M.R.C.P., provided that 1) the court has made a 
ruling in the matter, 2) the movant is an aggrieved party and 3) the trial 
judge certifies that in his opinion the question of law involved in the 
interlocutory order or ruling ought to be determined by the Law Court 
before any further proceedings are taken.  Nothing in the rule itself 
suggests that the ruling about which the movant complains must be 
expressly set up in formal questionnaire to the Law Court either in the
motion to report or in the justice's certificate. So long as the record 
clearly identifies the issue raised and contains the necessary information 
to permit a determination of the question, no further particularization 
is required.  Furthermore, whether the trial justice should report an 
interlocutory order is entirely within his sound judicial discretion.  
MacLean v. Jack, 1964, 160 Me. 93, 198 A.2d 1.  There was no abuse of 
discretion on the part of the presiding Justice who must have viewed the 
issue properly circumscribed for ready understanding by the Law Court.

     Substantive sufficiency of the report

     The appellee Association's second objection brings up the propriety 
of the report in the light of 26 M.R.S.A.,  970.[fn]3  The claim is that 
the Justice below was correct, both, in his refusal to grant summary 
judgment in favor of the Board for illegality of the "agency shop" 
provision of the agreement, and, in his denial of the Board's request for 
a stay of the arbitration proceeding, all, it is 
____________________

2.  RULE 72(c) Report of Interlocutory Rulings.  If the court is of the 
  opinion that a question of law involved in an interlocutory order or 
  ruling made by it in any action ought to be determined by the Law Court 
  before any further proceedings are taken therein, it may on motion of 
  the aggrieved party report the case to the Law Court for that purpose and 
  stay all further proceedings except such as are necessary to preserve the 
  rights of the parties without making any decision therein.

3.  26 M.R.S.A.,  970.  Scope of binding contract arbitration

   "A collective bargaining agreement between a public employer and a 
  bargaining agent may provide for binding arbitration as the final step 
  of a grievance procedure, but the only grievances which may be taken to 
  such binding arbitration shall be disputes between the parties as to the 
  meaning or application of the specific terms of the collective 
  bargaining agreement.  An arbitrator with the power to make binding 
  decisions pursuant to any such provision shall have no authority to add
  to, subtract from or modify the collective bargaining agreement."
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[/190] 
said, pursuant to the doctrine of primary jurisdiction.  We did say in 
State ex rel. Brennan v. R.D. Realty Corporation, 1975, Me., 349 A.2d 
201, at 207, that

        "[as] a matter of judicial policy we will generally not decide an
     issue concerning which an administrative agency has decision capacity
     until after the agency has considered the issue."

In R.D. Realty, the issue at hand involved a mixed question of law and 
fact.  As pointed out in that case the controlling consideration in 
support of the doctrine of deference of courts to administrative agencies 
lies in the fact that the agency "has developed an expertise in resolving 
the special problems with which it is, by law, required to become 
concerned," and the "[merest] prudence suggests that the courts ought to 
have the benefit of the . . . [Agency's] prior expert evaluation of 
controverted facts, before it intervenes in a controversy over which 
the . . . [Agency] has jurisdiction."  (Underscoring provided).

     There are exceptions to the doctrine of primary jurisdiction 
excusing the non-exhaustion of administrative remedies, and one of the 
exceptions is, where the questions involved are questions of law only 
which the courts must ultimately decide.  The issue of the legality of 
the "agency shop" agreement in the instant case is one solely of law, 
wherein the special expertise of the administrative agency would be of no 
significant benefit.  See Stanton v. Trustees of St. Joseph's College, 
1967, Me., 233 A.2d 718, 724.

     Also, where the administrative agency is not empowered to grant the 
relief sought and it would be futile to complete the administrative appeal 
process, such are special circumstances dispensing with the exhaustion of 
the administrative remedy prior to turning to the courts for relief.  The 
claimed illegality of the "agency shop" provision of the agreement 
qualifies as a special situation where original recourse to the courts 
should be used rather than proceeding at the administrative level.  See 
Maine State Employees Ass'n v. Williams, 1977, Me., 373 A.2d 258, 261, 
where we said:

        "The issue of whether 13 cents per mile is a fair reimbursement 
     for the use of a privately owned automobile on state business, being 
     the only rate authorized by statute, cannot be deemed a grievance 
     against a particular state agency since that agency has no power to 
     allow reimbursement beyond the statutory rate."

     As provided in 26 M.R.S.A.,  970 (note 3 supra), the only grievances 
which may be taken before an arbitrator empowered to make binding decisions 
are disputes between the parties as to the meaning or application of the 
specific terms of the collective bargaining agreement.  Where the instant 
agreement contained an "agency shop" provision, such arbitrator must assume 
its validity as he has no authority to subtract it from the agreement for 
illegality, nor can he modify the agreement by considering it unlawful.  
Hence, the report of the Court's ruling was in that aspect proper.  See 
Lewiston Firefighters Ass'n v. City of Lewiston, 1976, Me., 354 A.2d 154, 
167.

     The Board -- an aggrieved party

     Prior to the report of the case, the defendant Association had moved 
to dismiss the plaintiff Board's complaint for declaratory judgment 
respecting the validity of the "agency shop" provision of the agreement.  
The presiding Justice denied the Association's motion, but at the same 
time he refused to grant the Board's request for a stay of the order to 
submit the alleged grievance to arbitration.

     "For aggrievement by a judgment or order, such judgment or order must 
operate prejudicially and directly upon a party's property, pecuniary or 
personal rights."  Jamison v. Shepard, 1970, Me., 270 A.2d 861, 862.

     Although the Justice's ruling on the motion to dismiss the Board's 
complaint was unfavorable to the Association, it is clear, in the light of 
26 M.R.S.A.,  970 which compelled the arbitrator to assume the validity 
of the "agency shop" provision of the agreement,  
_________________________________________________________________________

[/191]  
that the Court was actually sustaining the Association's contentions on 
that issue.  The Justice's simultaneous denial of a stay of the 
arbitration process unmistakably characterizes his overall action as an
adjudication prejudicially and directly adverse to the rights of the Board.

     We conclude that the Board was an aggrieved party within the meaning 
of Rule 72(c), M.R.C.P.  See Blaney v. Rittall, 1973, Me., 312 A.2d 522.

  Legality of the "agency shop" provision under the Municipal 
    Public Employees Labor Relations Law

     The determinative issue which must be resolved in this case is:

     Does the "agency shop" provision of the agreement violate the 
Municipal Public Employees Labor Relations Law, 26 M.R.S.A.,  961-972?  
We answer in the affirmative.

     Except as may be authorized by statute, public employees have no 
right to bargain collectively with the employing agency.  Without common 
law collective bargaining rights, public employees enjoy only those rights 
specifically granted by statute.  City of Hayward v. United Public 
Employees, Local 390, etc., 1976, 54 Cal.App.3d 761, 126 Cal.Rptr. 710. 
See City of Biddeford v. Biddeford Teachers Ass'n, 1973, Me., 304 A.2d 
387, 393.

     The explicit purpose of the Municipal Public Employees Labor 
Relations Law (26 M.R.S.A.,  961), expressly declared to be the public 
policy of the State of Maine, is

     "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."

     From the Legislature's own delineation of purpose, we can readily see
as composite parts of the legislative intent, 1) the promotion of the
employer-employee relationship in the public sector, 2) through uniform
legislation, 3) permitting public employees to join labor organizations of 
their own choosing, 4) for collective bargaining respecting terms and 
conditions of employment.  Nothing therein even suggests any legislative 
concern for union security which an "agency shop" clause would provide.

     On the other hand, the Legislature erected special safeguards around 
public employees' right to the "free exercise" of the collective 
bargaining privileges in the following sections of the Act.

     In 26 M.R.S.A.,  963, it is provided that

        "[no] one shall directly or indirectly interfere with, intimidate,
     restrain, coerce or discriminate against public employees or a group
     of public employees in the free exercise of their rights, hereby
     given, voluntarily to join, form and participate in the activities of
     organizations of their own choosing for the purposes of representation
     and collective bargaining, or in the free exercise of any other right
     under this chapter."

The "free exercise of any other right under this chapter" surely would
include the right not to join the bargaining agency selected by the majority 
of the bargaining unit, in the absence of any express provision to the 
contrary.

     The Legislature further protected public employees' "free exercise" 
of the collective bargaining privileges by prohibiting conduct conflicting 
with the employees' freedom of action.  Section 964 of chapter 26 provides 
in pertinent part:

     "1.  Public employer prohibitions.  Public employers, their
     representatives and their agents are prohibited from:
     A.  Interfering with, restraining or coercing employees in the
     exercise of the rights guaranteed in section 963;
     B.  Encouraging or discouraging membership in any employee
     organization by discrimination in regard to hire or tenure of
     employment or any term or condition of employment;

     *     *     *     *     *     *     *     *     *     *     *     *
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[/192]
     "2.  Public employee prohibitions.  Public employees, public
     employee organizations, their agents, members and bargaining agents
     are prohibited from:
     A.  Interfering with, restraining or coercing employees in the
     exercise of the rights guaranteed in section 963 or a public employer
     in the selection of his representative for purposes of collective
     bargaining or the adjustment of grievances; * * *."

     In our interpretation of the Municipal Public Employees Labor 
Relations Law we must consider two long established principles of 
statutory construction:  1) The general rule is that statutes in 
derogation of the common law must be strictly construed and not extended 
by implication.  Stanton v. Trustees of St. Joseph's College, supra, at 
page 722; Depositors Trust Company of Augusta v. Johnson, 1966, Me., 222 
A.2d 49; 2) public bodies or officers[fn]4 may exercise only that power 
which is conferred upon them by law.  The source of that authority must 
be found in the enabling statute either expressly or by necessary inference
as an incidence essential to the full exercise of the powers specifically 
granted.  State v. Fin & Feather Club, 1974, Me., 316 A.2d 351, 355; Town 
of Windham v. LaPointe, 1973, Me., 308 A.2d 286, 290.

     The "agency shop" provision in the instant case is strictly a union
security clause designed to induce union membership on the part of 
unwilling employees.  While increased membership in labor organizations 
and greater participation in their activities is a legitimate goal of 
unions and the elimination of the free rider would be helpful in attaining
such objective, the forced payment of dues or their equivalent under an 
"agency shop" clause is tantamount to coercion toward membership or, at 
the very least, toward participation in a labor organization expressly 
forbidden by statute.

     Absent express authorization by the Legislature, an "agency shop" 
provision in a collective bargaining agreement between public employees 
and their public employer, which exacts from non-members as a condition 
of continued employment in the bargaining unit in the guise of an 
"equitable proportion of the cost of representation" by the bargaining 
agent "fees equal to but not in excess of the equivalent of" dues to 
belong to the employee organization, is unlawful as violative of the 
statute protecting the right of public employees "voluntarily to join, 
form and participate in the activities of organizations of their own 
choosing."  Such a provision contravenes the legislative policy contained 
in 26 M.R.S.A.,  964(1)(A) prohibiting coercion of employees in the
exercise of their right of free choice to join and participate in the 
activities of labor organizations.[fn]5

     Authorities in support of our position:  Smigel v. Southgate 
Community School District, 1972, 388 Mich. 531, 202 N.W.2d 305; New Jersey
Turnpike Employees' Union, Local 194 etc. v. New Jersey Turnpike Authority, 
1973, 123 N.J.Super. 461, 303 A.2d 599; New Jersey Turnpike Employees' 
Union, Local 194 v. New Jersey Turnpike Authority, 1971, 117 N.J.Super. 
349, 284 A.2d 566, affirmed with modification, 1974, 64 N.J. 579, 319 A.2d 
224; Farrigan v. Helsby, 1971, 68 Misc.2d 952, 327 N.Y.S.2d 909, aff'd 
1973, 42 A.D.2d 265, 346 N.Y.S.2d 39; see also State Employees' Ass'n of 
New Hampshire, Inc. v. Mills, 1975, 115 N.H. 473, 344 A.2d 6; Town of 
North Kingstown v. North Kingstown Teachers Ass'n, 1972, 110 R.I. 698, 
297 A.2d 342.

     In Lewiston Firefighters Association, supra, we said at page 164: 
"In the absence of controlling language in our own statute, we find the 
federal experience persuasive."
____________________

4.  26 M.R.S.A.,  962(7) provides as follows:

   "'Public employer' means any officer, board, commission, council, 
committee or other persons or body acting on behalf of any municipality 
or town or any subdivision thereof, or of any school, water, sewer or 
other district."

5.  We do not intimate what our decision would be if the so-called "agency
shop" clause in the instant case had required nonjoinder employees to pay 
to the bargaining agent only their proportionate share of the costs of 
securing the benefits conferred upon all members of the bargaining unit.
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[/193]  
     In the federal legislation enacted in 1935 and 1947, Congress 
specifically excepted union shop agreements (this includes agency shop
agreements since the agency shop is the practical equivalent of the union 
shop) from an otherwise absolute right of employees to join, form, or 
assist labor organizations of their own choosing in collective bargaining 
or to refrain from any or all of such activities, and from conduct 
constituting unfair labor practices.  See National Labor Relations Act, 
29 U.S.C.  157, 158(a)(1) and 158(a)(3).[fn]6

     It is reasonable to believe that in 1969, when it enacted the Municipal
Public Employees Labor Relations Law, the Maine Legislature was cognizant 
of these provisory exception clauses which legalized union security 
arrangements in the federal sphere, notwithstanding that the federal act 
contained analogous provisions as our sections 963 and 964 of chapter 26.  
The omission of any such provisos in our legislation is a sure indicator, 
absent any legislative history to the contrary, that our Legislators chose 
not to permit the agency shop in public employment in Maine.  City of 
Hayward v. United Public Employees, Local 390, etc., 1976, 54 Cal.App.3d 
761, 126 Cal.Rptr. 710.

     We hold that the "agency shop" provision of the instant collective
bargaining agreement between the public employer District and the municipal 
public employees thereof is repugnant to sections 963 and 964 of the 
Municipal Public Employees Labor Relations Law and, therefore, null and 
void.[fn]7  Thus, the Board's failure to discharge the recalcitrant 
non-member teachers could not be the basis of a grievance within the scope 
of the agreement.

     Agency shop provision in violation of 20 M.R.S.A.,  473(4)

     The plaintiff Board further argues that the "agency shop" provision 
is also unlawful, because it would permit discharges of public school 
teachers for a reason beyond the scope of permissive legislation covering 
the subject.

     20 M.R.S.A.,  473(4) empowers public school authorities to dismiss 
any teacher, including those having tenure rights, "who proves unfit to 
teach or whose services they deem unprofitable to the school."[fn]8

     In Superintending School Committee, etc. v. Winslow  Education 
Association, 1976, Me., 363 A.2d 229, 234, we said in construing the 
reference statute:

        "This language demonstrates that, at least as regards dismissal,
     the legislature vested sole authority in the school committee, subject
     only to judicial review."

     Such interpretation was in accord with our strict construction rule 
as applied to  
____________________

6.  29 U.S.C.  157.  Right of employees as to organization, collective
  bargaining, etc.

    "Employees shall have the right to self-organization, to form, join, 
  or assist labor organizations, to bargain collectively through 
  representatives of their own choosing, and to engage in other concerted      
  activities for the purpose of collective bargaining or other mutual aid 
  or protection, and shall also have the right to refrain from any or all 
  of such activities except to the extent that such right may be affected 
  by an agreement requiring membership in a labor organization as a 
  condition of employment as authorized in section 158(a)(3) of this 
  title."

    29 U.S.C.  158 provides in pertinent part:  "(a) It shall be an unfair 
  labor practice for an employer --

    (1) to interfere with, restrain, or coerce employees in the exercise 
  of therights guaranteed in section 157 of this title;

    (3) * * * Provided, That nothing in this subchapter, or in any other 
  statute of the United States, shall preclude an employer from making an 
  agreement with a labor organization . . . to require as a condition of 
  employment membership therein . . ."

7.  We intimate no opinion respecting the legality of an "agency shop"
  provision when made part of a collective bargaining agreement in the 
  private sector.

8.  20 M.R.S.A.,  473(4) reads as follows:

    "After investigation, due notice of hearing, and hearing thereon, they 
shall dismiss any teacher, although having the requisite certificate, who 
proves unfit to teach or whose services they deem unprofitable to the 
school; and give to said teacher a certificate of dismissal and of the 
reasons therefor, a copy of which they shall retain.  Such dismissal shall 
not deprive the teacher of compensation for previous services."
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[/194]  
educational legislation.  See Hopkins v. Bucksport, 1920, 119 Me. 437, 
440, 111 A. 734; Searsmont v. Farwell, 1825, 3 Me. 450.

     We concluded in Superintending School Committee of the Town of 
Winslow, supra, that, without consideration of P.L. 1976, c. 723,[fn]9 the 
plaintiff school committee could not be forced by interest arbitration to 
accept the "just cause" and arbitration provisions of a proposed collective
bargaining agreement.

     The question of the validity and enforceability of the "agency shop"
provision of the instant collective bargaining agreement would ordinarily 
be moot by reason of the expiration of the school years to which it 
applied, but it is not in this case inasmuch as the parties have 
supplemented the record with their mutual stipulation that "the identical 
legal questions apply to the presently operative agreement."  See Town of 
North Kingstown v. North Kingstown Teachers Ass'n, 1972, 110 R.I. 698, 297 
A.2d 342 at page 343, n.1.

     In view of the continued presently existing controversy between the 
parties respecting the lawfulness of the "agency shop" provision of the 
collective bargaining agreement within the context of the impact of the 
1976 amendment to the teacher-discharge statute, and, considering that, on 
occasion, courts will entertain questions of law in a case even after the 
same have become moot where the controversial legal points are of great 
public interest, will authoritatively guide future action of public 
officers and are likely to recur if left unresolved, we decide the issue.  
See King Resources Company v. Environmental Improvement Commission, 1970, 
Me., 270 A.2d 863, at 870; People ex rel. Wallace v. Labrenz, 1952, 411 
Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132.

     We hold that the 1976 amendment which provides that just cause for 
dismissal of teachers or nonrenewal of teacher contracts may be a 
negotiable item in accordance with the procedure set forth in Title 26, 
c. 9-A (the Municipal Public Employees Labor Relations Law), for teachers 
who have served beyond the probationary period, while it may affect the 
prior interpretation of exclusivity given the teacher-dismissal statute, 
falls far short of legitimizing the instant "agency shop" provision for 
purposes of collective bargaining agreements.  Absent a specific 
legislative declaration to the contrary, we must say that the "agency shop" 
clause in the instant case is repugnant to sections 963 and 964 of the 
Municipal Public Employees Labor Relations Law.[fn]10

     The entry will be

     Case remanded to the Superior Court for further proceedings in 
accordance with this opinion.

     WEATHERBEE, J., sat at argument and participated in consultation, but died
prior to the adoption of the opinion.

     POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ., and DUFRESNE,
     A.R.J., concurring.
____________________

9.  The 1976 amendment of the school statute, 20 M.R.S.A.,  161(5), states 
  as follows:

    "Just cause for dismissal or nonrenewal may be a negotiable item in
  accordance with the procedure set forth in Title 26, c. 9-A, for teachers 
  who have served beyond the probationary period."

10.  What the effect of the 1976 amendment will be on interest or grievance
  arbitration clauses respecting teacher discipline for causes other than
  nonpayment of monetary amounts equivalent to union dues pursuant to an 
  "agency shop" provision, we do not decide at this time.
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