This Law Court case decided on June 1, 1981, 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.
CITY OF BANGOR
v.
LOCAL 926, COUNCIL #74, AFSCME
McKUSICK, Chief Justice.
The City of Bangor (the City) appeals to the Law Court from
a judgment of the Superior Court, Penobscot County, confirming
an arbitration award. The arbitrators found that the City had
a contractual obligation to negotiate over the addition of a
union security provision to the collective bargaining agreement
existing between it and Local 926, Council #74, American
Federation of State, County and Municipal Employees, AFL-CIO
(the Union).[fn]1 We hold that the board of arbitrators in
making that finding exceeded its powers and that the Superior
Court should have vacated the arbitration award. We therefore
reverse the Superior Court judgment.
On March 2, 1979, the City and the Union entered into a
collective bargaining agreement, article 3, section 2 of which
provides:
If during the term of this Agreement or any
extension thereof, 26 M.R.S.A. Sec. 964(1)(B)
is construed by the Maine Supreme Judicial Court
_________________
1. The Union is the bargaining agent for employees of the
Operations and Maintenance Division of the City's Department
of Public Services.
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or amended by the Maine State Legislature to
allow for union security provisions in public
employee collective bargaining agreements, the
issue of inclusion of union security provisions
in this Agreement will be open for negotiation
by either party hereto.
(Emphasis added) Section 964(1)(B)[fn]2 is part of the labor
relations statute applicable to municipal employees, namely,
26 M.R.S.A. § 961, et seq., the Municipal Public Employees Labor
Relations Act (M.P.E.L.R.A.).
On May 31, 1979, the Union requested the City to open
negotiations with it on the issue of inclusion of a union
security provision[fn]3 in their existing collective bargaining
agreement. In the period of less than three months intervening
between execution of the agreement and the Union's request for
negotiations, the justices of the Supreme Judicial Court had on
April 30, 1979, given an advisory opinion to the House of
Representatives relative to a "fair share" union security clause
in a proposed agreement with the Maine State Employees Association
representing certain bargaining units of state employees. See
Opinion of the Justices, Me., 401 A.2d 135 (1979). That "fair
share" provision, by which nonmember employees in the bargaining
unit would be required to pay the union 80% of members' dues,
purportedly representing the cost of union services to those
nonmembers, would not, in the justices' opinion, violate the
freedoms guaranteed under the labor relations statute applicable
to state employees, namely, 26 M.R.S.A. § 979 et seq., the State
Employees Labor Relations Act (S.E.L.R.A.).
The City refused to enter into negotiations with the Union over
a union security clause, asserting that the condition precedent
to such negotiations prescribed by article 3, section 2, quoted
above, had not been satisfied. Thereupon, the Union invoked the
four-step grievance procedure provided by the collective bargaining
agreement to settle a dispute concerning the "application, meaning,
or interpretation" of any of its provisions. The fourth and final
step is binding arbitration. Since the Union and the City agree
that section 964(1)(B) has never been amended by the legislature,
the question before the board of arbitrators was whether
26 M.R.S.A. Sec. 964(1)(B) [had been] construed by the
Maine Supreme Judicial Court . . . to allow for union
security provisions in public employee collective
bargaining agreements.
The arbitration board concluded that "[t]aking the [advisory] opinion,
together with the other evidence presented"
it must be construed that the Maine Supreme Judicial Court
allows for unions security provisions [sic] in public
employee bargaining agreements.
(Emphasis in original) The "other evidence presented" to the
arbitrators was, first, the Law Court's 1977 opinion in
Churchill v. S.A.D. No. 49 Teachers Ass'n, Me., 380 A.2d 186
(1977),[fn]4 which in footnote 5 expressly disclaimed any
intimation as to the validity of a "fair share" type of union
security clause under the municipal employees labor
______________________
2. 26 M.R.S.A. § 964(1)(B) (1974) states:
1. Public employer prohibitions. Public employers, their
representatives and their agents are prohibited from:
. . . .
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;
3. The term "union security provisions" used by the City and the
Union in article 3, section 2 of their agreement was meant, we
understand, to include, inter alia, "agency shop" clauses such as
that involved in Churchill v. S.A.D. No. 49 Teachers Ass'n, Me.,
380 A.2d 186 (1977), and "fair share" clauses such as that involved
in Opinion of the Justices, Me., 401 A.2d 135 (1979). In Churchill
the Law Court, more than 15 months before the City and the Union
entered into their agreement, had held unlawful under M.P.E.L.R.A.,
including 26 M.R.S.A. § 964(1)(B), an "agency shop" clause that, as
a condition of continued employment in the bargaining unit, exacted
from nonmembers of the union fees equal to dues paid by union members.
4. See n. 3 above.
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relations statute, and, second, a letter[fn]5 from the Attorney
General's office to a state representative, which the arbitrators
said "clearly indicate[d] the comparability and interchangeability
of interpretations of rulings from one part [of Title 26] dealing
with municipal employees to other parts dealing with state
employees . . . ." On that "evidence" the arbitrators found that
the contractual condition precedent for negotiations on a union
security provision had been satisfied and that the City was under
an obligation to bargain with the Union on that issue.
On opposing motions of the City to vacate the arbitration
award[fn]6 and of the Union to confirm it, the Superior Court
ordered the city to negotiate with the Union as provided in
article 3, section 2 of the collective bargaining agreement.
The Superior Court justice decided to confirm the arbitrators'
award entirely on the basis of the 1979 Opinion of the Justices, supra.
He found, first, that the arbitrators had not exceeded the scope
of their authority by considering that advisory opinion. Second,
he concluded that the rationale upon which the justices' Opinion
approved of a fair share union security provision under S.E.L.R.A.
was equally applicable to M.P.E.L.R.A., for the advisory opinion
was based largely upon language common to both labor relations acts.
See Opinion of the Justices, supra at 147. Compare 26 M.R.S.A.
§ 979-F(2)(E) (S.E.L.R.A.) with 26 M.R.S.A. § 967(2) (M.P.E.L.R.A.).
Third, citing Board of Directors of Maine School Administrative
District No. 33 v. Teachers' Association of Maine School Administrative
District No. 33, (SAD 33), Me., 395 A.2d 461 (1978), the Superior
Court justice concluded that the disputed contractual provision,
article 3, section 2, raised only a question of law, and that the
arbitrators' answer to that question was bargained for by the parties
and, once it had been given, it became binding upon them.
We conclude that the Superior Court should have vacated the award,
rather than to have confirmed it. The basic question originally
faced by the arbitrators was one of interpreting article 3, section 2
of the collective bargaining agreement: As a condition precedent for
mandatory negotiations over a union security clause, does that contract
provision require a precedentially controlling ruling by the Supreme
Judicial Court as to the municipal employees labor relations statute?
Plainly, the arbitrators answered that question in the negative; they
found that "26 M.R.S.A. sec. 964(1)(B) [has been] construed by the
Maine Supreme Judicial Court" on the basis of legal inferences drawn
by the arbitrators from an advisory opinion relating to the similar,
but distinct, state employees labor relations statute.
The parties to the Bangor collective bargaining agreement contracted
for the arbitrators' decision on questions of the "application,
meaning or interpretation" of article 3, section 2. It is established
law that, in reviewing an arbitration award based on an interpretation
of a collective bargaining agreement, "a court will not substitute
its judgment for that of an arbitrator," Westbrook School Committee v.
Westbrook Teachers Ass'n, Me., 404 A.2d 204, 209 (1979), but on the
other hand it must "refuse to enforce the arbitrator's award, if it
finds no rational construction of the contract that can support the
award." Id. In that event the court "will conclude that the
arbitrator exceeded his powers by traveling outside the agreement." Id.
The issue then before the court below, and now before the Law Court,
is whether there is rational support for the arbitrators' construction
of article 3, section 2, which mandates negotiations over adding a
union security clause only
_____________________
5. Since this letter is not in the record before the Law Court, we
must on the City's appeal assume that the letter fully supports the
arbitrators' summary of what it "clearly indicate[d]." Cf. Summit
Realty, Inc. v. Gipe, Me., 315 A.2d 428, 429-30 (1974).
6. The City brought its motion to vacate the arbitrator' award pursuant
to a provision of the Uniform Arbitration Act, 14 M.R.S.A. § 5938(1)(C)
(1980), which declares that the Superior Court "shall vacate an award
where . . . [t]he arbitrators exceeded their powers . . . ."
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_________________________________________________________________________
[i]f during the term of . . . [the] Agreement . . . 26 M.R.S.A.
Sec. 964(1)(B) is construed by the Maine Supreme Judicial Court
or amended by the Maine State Legislature to allow for union
security provisions in public employee collective bargaining
agreements.
(Emphasis added) We conclude that the arbitrators' construction of
the collective bargaining agreement does not find such support.
Here the parties did not bargain for the arbitrators' legal
construction of 26 M.R.S.A. § 964(1)(B).[fn]7 They bargained
for a specific triggering event, in the form of either a legislative
amendment or a court construction, that would have a legal effect
upon their bargaining relationship. The legislature has not acted
to amend section 964(1)(B). Nor do we believe it is possible to
say that the Maine Supreme Judicial Court has acted to construe
section 964(1)(B) to allow for union security provisions, within
any rational construction of article 3, section 2 of the City's
contract with the Union. The Opinion of the Justices, supra, relied
upon by the arbitrators and the Superior Court, does not constitute
a construction of section 964(1)(B) by the Maine Supreme Judicial
Court.[fn]8
The bargained-for trigger for mandatory negotiations on a union
security clause was plainly a judicial declaration by the whole
Supreme Judicial Court in a litigated case so that the construction
of section 964 so declared would be precedentially binding upon all
persons, including the present contracting parties. In other words,
by the clear terms of article 3, section 2, negotiations over a
union security clause would become required only in the event of a
judicial construction of section 964(1)(B) by the Maine Supreme
Judicial Court that had a general binding quality comparable to a
legislative amendment of that section. The 1979 Opinion of the
Justices, supra, does not satisfy that condition precedent. It was
not the action of the Maine Supreme Judicial Court. It instead
represented the opinion of the several justices acting individually
in discharge of their individual constitutional responsibility "to
give their opinion upon important questions of law, and upon solemn
occasions, when required by the Governor, Senate or House of
Representatives." See Me.Const. Art. VI, § 3. And that advisory
opinion was not a judicial construction of provisions relevant to
union security. See State v. Cleveland, 58 Me. 564, 573 (1870).
In subsequent litigation, that advisory opinion will not bind
either the same or different justices acting collegially as the
Law Court nor the litigants who bring an actual controversy before
the Law Court on appeal. Opinion of the Justices, Me., 396 A.2d 219,
223 (1979); Martin v. Maine Savings Bank, 154 Me. 259, 268-69, 147
A.2d 131, 136-37 (1958). It more nearly resembles advice given by
an attorney to a client than a decision rendered by a court in a
litigated matter. It has no precedential or stare decisis consequences.
"The giving of advisory opinions is not the exercise of the judicial
function at all, and the opinions thus given have not the quality of
judicial authority." Laughlin v. City of Portland, 111 Me. 486, 497,
90 A. 318, 323 (1914), quoting Thayer, the Origin and Scope of the
American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 153 (1893).
_______________________
7. This fact distinguishes the case urged by the Union and cited by
the Superior Court in support of confirming the arbitration award,
SAD 33, supra, Me., 395 A.2d 461 (1978).
8. It is readily observable that that advisory opinion involved a
construction of the state labor relations law, and not at all a
construction of the municipal labor relations law of which section
964(1)(B) is a part. But we do not base our decision on that narrow
and obvious point. Many of the provisions in the state employee
labor relations law are worded identically to provisions in the
municipal employee labor relations law. Thus, for instance, section
964(1)(B) of the municipal employee law has an exact counterpart in
section 979-C(1)(B) of the state employee law. However, whether the
individual justices who gave their advisory opinion on the state law
to the House of Representatives would or would not, if asked in the
future, give the same construction to the municipal law is irrelevant
to the only question at issue here--which, again, is whether the
arbitrators could rationally conclude, basing their judgment on the
specific language of article 3, section 2, that the event triggering
negotiations over union security had occurred.
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By inserting the clause "[i]f . . . Sec. 964(1)(B) is construed
by the Maine Supreme Judicial Court" in article 3, section 2, the
parties bargained for a judicial construction of section 964(1)(B)
that would, similarly as a legislative amendment, precedentially
bind all persons, including the City and the Union. For the arbitrators
to treat the parties as if they had bargained for something much less
was to modify the clear meaning of article 3, section 2, in violation
of the statutory restriction that arbitrators "shall have no authority
to add to, subtract from or modify the collective bargaining agreement"
26 M.R.S.A. § 970 (1974). See International Union of Operating Engineers,
AFL-CIO, Local No. 670 v. Kerr-McGee Refining Corp., 618 F.2d 657 (10th Cir.
1980); General Drivers, Warehousemen and Helpers, Local Union No. 89 v.
Hays & Nicoulin, Inc., 594 F.2d 1093 (6th Cir. 1979). Since the 1979
Opinion of the Justices, supra, did not change or affect, either directly
or by analogy, the status of the municipal labor relations law, no
rational construction of the words "[i]f . . . Sec. 964(1)(B) is
construed by the Maine Supreme Judicial Court . . . to allow for union
security provisions" can find in that advisory opinion the condition
precedent to mandatory negotiations for which the parties had bargained.
See Westbrook School Committee v. Westbrook Teachers Ass'n, supra 404
A.2d at 208-09.
The entry must be:
Judgment reversed.
Remanded to the Superior Court with direction to vacate the award of the
Board of Arbitrators dated February 25, 1980.
All concurring.
(June 1, 1981)
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