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.


Docket:   And-79-21
Argued:   March 4, 1980
Decided:  April 16, 1981

                  NO. 36 TEACHERS ASSOCIATION



     The Maine School Administrative District No. 36 Teachers Association
(Association) appeals from a judgment of the Superior Court, Androscoggin
County, denying the Association's motion to confirm an arbitration award 
and vacating the award on motion of the Board of Directors of Maine School
Administrative District No. 36 (Board).  The arbitrator had ruled that 
the Board violated the procedures governing requests for voluntary 
transfer to vacancies within the district as provided in article XIII 
of the collective bargaining agreement between the parties.  We are 
called upon to decide whether a school board can make its statutory 
authority over hiring teachers subject to grievance arbitration. We 
determine that it cannot.  Accordingly, we affirm the Superior Court's 

     The Board has also filed a cross-appeal from the Superior Court's 
granting a motion to strike an affidavit submitted by the Board before 
the Superior Court hearing.  Our resolution of the Association's appeal 
renders this issue moot, so we therefore dismiss the Board's cross-

     This case arises from the filling of a junior high school teaching 
position.  In the spring of 1978, a vacancy developed in an eighth grade 
science position in District 36.[fn]1  Patricia Bierce, a sixth grade 
teacher, was the only teacher within the system to apply for the position.  
The Board considered Bierce along with the other applicants but hired a 
teacher from outside the system.  The Association initiated grievance 
proceedings on behalf of Bierce, alleging a violation of article XIII(B) 
of its contract.

     The relevant part of article XIII reads:

Transfers, Reassignments, and Promotions

  A.  1.  No later than three (3) weeks after issuance of contracts 
  each school

1.  M.S.A.D. 36 includes the public schools in the towns of Fayette,
Livermore, and Livermore Falls.

year, the Superintendent shall post in all school buildings a list of 
officially existing vacancies which shall occur during the following 
school year.

      2.  Teachers who desire a change in grade and/or subject 
  assignment, a transfer to another building, or a promotion shall 
  file a written statement with the Superintendent. Such statement 
  shall include the grade and/or subject, school or schools, and 
  promotional position to which he desires to be transferred.

  . . . . 

  B.  In the determination of requests for voluntary re-assignment or
  transfer, the wishes of the individual teacher shall be honored 
  to the extent that the transfer does not conflict with the 
  instructional requirements and best interests of the school system. 
  If more than one teacher has applied for the same position, the 
  length of service in the system will be a major consideration in the 
  determination as to which teacher shall be transferred or re-assigned 
  voluntarily.  In no event, will seniority serve as the sole criteria 
  for granting the request of one individual over another.

     After the first levels of the grievance procedure proved unavailing, 
the Association demanded arbitration.[fn]2  The arbitrator rejected the 
Board's contention that the phrase in article XIII(B) referring to "the 
instructional requirements and best interests of the school system" 
allowed it to compare all the applicants and to choose from that pool a 
more qualified outside applicant.  Instead, the arbitrator interpreted 
article XIII(B) as requiring a preference in favor of applicants within 
the system.  Therefore, the Board could look outside the system only 
after specifically finding that the transfer of any certified present 
teacher would conflict with the instructional requirements and best 
interests of the system.  In reaching this conclusion, the arbitrator 
limited the scope of his inquiry to the terms of the collective 
bargaining agreement, commenting that whether the Board had exceeded its 
statutory powers by agreeing to article XIII(B) was a legal issue outside 
his proper role to decide.[fn]3  He then ordered the Board to grant to 
Bierce the transfer for the following year.

      After hearing the application to vacate and the motion to confirm 
the arbitration award, the Superior Court held that "the hiring of school 
teachers is the non-delegable, managerial prerogative of school 
superintendents with the approval of school committees or school 
directors," citing Berkshire Hills Regional School District Committee 
v. Berkshire Hills Education Association, 375 Mass. 522, 377 N.E.2d 940 
(1978).  The justice recognized the distinction between grievance 
arbitration as to hiring procedures and arbitration as to a teacher's
entitlement or right to a vacant position.  See School Committee of West 
Springfield v. Korbut, 373 Mass. 788, 369 N.E.2d 1148 (1977). He pointed 
out that it is reasonable and proper for the collective bargaining 
agreement to set forth procedures for processing a teacher's application 
for transfer, but he concluded that the arbitrator's opinion 
impermissibly usurped the powers and responsibilities granted by 
20 M.R.S.A.  161(5) to the superintendent and school committee.

      Title 20, M.R.S.A.  161(5),[fn]4 gives the superintendent of 
schools the responsibility  

2.  The contract between the School District and the Association provides 
  four levels of formal grievance resolution, starting with the 
  principal, progressing through the superintendent and the board of 
  directors, and, if the grievant is still unsatisfied, reaching 
  arbitration at level four.

3.  We do not imply our acceptance of the arbitrator's decision not to
  interpret the lawfulness of the provision.  See Board of Directors of 
  M.S.A.D. No. 33 v. Teachers' Ass'n of M.S.A.D. No. 33, Me., 395 A.2d 461, 
  463 (1978).

4.  20 M.R.S.A.  161 (Supp. 1980) provides, in part, as follows:

      A superintendent of schools shall have the following powers and

      . . . .

      5.  Shall nominate teachers; election to be approved by committee;
    probationary period; teachers may be elected under contract.  He shall
    nominate all teachers, subject to such regulations governing salaries
    and the qualifications of teachers as the school committee or school
    directors shall make, and upon the approval of nominations by said
    committee or directors, he may employ teachers so nominated and
    approved for such terms as he may deem proper, subject to the approval
    of the school committee or school directors.

of nominating new teachers, subject to the approval of the board of 
directors.  In Superintending School Committee of the Town of  Winslow v. 
Winslow Education Association, Me., 363 A.2d 229, 231 (1976), we held 

     the provisions of 20 M.R.S.A.  161(5) and  473 (4) vest the right
     and obligation to take action thereunder in the superintending school
     committee, and the school committee cannot be forced by interest
     arbitration to make their action thereunder subject to binding
     grievance arbitration.

Winslow, which concerned dismissal of probationary teachers under section
473(4),[fn] 5 left open the question whether a school board could 
voluntarily agree to grievance procedures.

      The Association contends that article XIII escapes the defect of 
the contract provision struck down in Winslow because it does not 
directly conflict with 20 M.R.S.A.  161(5).  It reasons that section 
161(5) merely establishes hiring procedures, so the section does not 
preclude establishing a limited transfer preference as one of the criteria 
for hiring teachers.  In addition, the Association argues, because 
section 161(5) allows a board of directors to make regulations for the 
qualifications of teachers, a board may voluntarily agree to give a 
preference to transfer applicants.  Although such a condition may not be 
imposed on a board through interest arbitration, the board's freely 
agreeing to limit its own discretion does not violate the statute.  The
Association points to the distinction drawn in Winslow between grievance
arbitration based on existing contracts and interest arbitration of 
contract disputes:

      Where a board has voluntarily entered into a contract of this sort,
    a reviewing court must take a somewhat different view than should be
    taken when a board states at the outset that it will not enter into
    such a contract.  In the first instance, the parties have bargained
    with each other, and the price for including a . . . provision may
    well have been the exclusion of another provision beneficial to the
    teachers. Furthermore, the board presumably knew what it was doing
    when it entered into the contract.

363 A.2d at 232. The Association concludes that because the statute does 
not expressly preclude voluntary agreements governing hiring procedures, 
the Board, having voluntarily entered the agreement, must be bound by it.

      Although we find the Association's logic otherwise persuasive, we 
must disagree with its underlying premise that section 161(5) merely 
establishes hiring procedures and allows the board voluntarily to limit 
its control over hiring teachers.  Section 161(5) does provide a 
procedural sequence for the exercise of the duties of the school 
superintendent and board, but its effect goes beyond merely establishing 
a procedural framework.  Rather, we find in that section's mandatory 
language a specific legislative intent to reserve to the school board and 
superintendent responsibility for filling teaching positions. Therefore, 
the Board could not lawfully limit its statutory responsibility for
choosing teachers through a collective bargaining agreement, even though 
entered into voluntarily.

     Our interpretation of section 161(5) is reinforced by our prior 
recognition of the special position occupied by teachers compared 

5.  20 M.R.S.A.  473 provides, in part, as follows:

        Superintending school committees and school directors shall perform
        the following duties:

        . . . . 

        4.  Teachers dismissed.  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 . . . .

to other public employees.  We have frequently stressed the importance to 
the education of our youth of choosing good teachers. E. g., Chassie v. 
Directors of School Administrative District No. 36, Me., 356 A.2d 708, 
710 (1976); Beckett v. Roderick, Me., 251 A.2d 427, 432 (1969). To ensure 
the selection of the best possible teachers, the legislature "places 
responsibility directly upon the members of the school committee and the 
superintendent of schools, each performing his statutory duty to the end 
that he who is best fitted be chosen."  Benson v. The Inhabitants of the 
Town of Newfield, 136 Me. 23, 27, 1 A.2d 227, 229 (1938). An agreement 
whereby the Board agrees to prefer potentially less qualified teachers 
within the system conflicts with the purpose of placing responsibility 
over hiring on the Board.

      Although we affirm the vacation of the award, we recognize the 
possible adverse impact on the collective bargaining process of 
permitting one of the parties to a collective bargaining agreement to 
claim that a provision is unenforceable.  Nevertheless, where the 
statutory responsibility is clear, we must hold that article XIII(B) as 
interpreted by the arbitrator is unlawful.[fn]6

     The entry will be:

     Judgment of the Superior Court affirmed.

     All concurring.


6.  By this decision we do not recognize any implied "management 
prerogative" exceptions to the scope of public sector collective 
bargaining.  See State v. Maine Labor Relations Board, Me., 413 A.2d 510, 
514 (1980).  We exclude the area of teacher hiring only because of the 
dictate of the statute.