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.
ROBERT WASHBURN et al. v. STATE OF MAINE et al.
Law Docket No. Ken-80-53
Supreme Judicial Court of Maine
432 A.2d 1237
Argued May 14, 1981.
Decided July 29, 1981.
Before MCKUSICK, C.J., and WERNICK, NICHOLS, ROBERTS and CARTER, JJ.
NICHOLS, Justice
[1237]
Robert Washburn was discharged from his position as Director of
the Bureau of Veterans Services on November 17, 1979, by the Adjutant
General.[fn]1 Alleging that he had been discharged without cause in
violation of certain provisions of the Maine State Employees Contract,
Washburn and the Maine State Employees Association initiated grievance
proceedings. The case was eventually submitted to arbitration. The
arbitration award ordered the State of Maine to reinstate Washburn as
Director of Veterans Services. When Washburn and the Association then
brought this controversy to Superior Court (Kennebec County), seeking
to have the award confirmed, that court vacated the award. Washburn
and the Association now appeal from the order vacating the award.
We affirm the judgment below.
The single issue on this appeal is whether the position Washburn
occupied can be the subject of a collective bargaining agreement that
limits the authority of his superior to discharge this employee.
Because the Association's contract with the State contains an invalid
provision relating to discharge procedures applicable to the Director
of the Bureau of Veterans Services, we affirm the order of the
Superior Court vacating the arbitrator's award.
Although the record does not clearly reveal the details of labor
negotiations preceding
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1. The Adjutant General is the chief administrator of the Department
of Defense and Veterans Services and is also known as the
Commissioner of the Department of Defense and Veterans Services.
See 37-A M.R.S.A. 1 (1978).
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[/1238]
Washburn's discharge, in February, 1977, the Maine Labor Relations Board
apparently determined that the position of Director of the Bureau of
Veterans Services held by Washburn should be represented by the Maine
State Employees Association in collective bargaining. Accordingly, the
Board concluded that the Director should be placed in the supervisory
services unit of state employees for purposes of collective
bargaining.[fn]2 On May 23, 1979, the State and the Association executed
collective bargaining agreements, including an agreement covering
employees in the supervisory services unit.
Against this background, Washburn responded to the termination of
his employment in November, 1979, by claiming he had been discharged
without just cause in violation of his rights pursuant to a provision
of the Maine State Employees Contract[fn]3 and a provision of the Maine
Personnel Law,[fn]4 both of which proscribed the discharge of a state
employee without cause. Washburn initiated grievance proceedings
pursuant to the contract,[fn]5 and on Washburn's behalf, the Association
made a demand for arbitration on January 9, 1980. The State then moved
in Superior Court for a stay of arbitration pending that court's decision
on substantive arbitrability and for an order permanently enjoining
arbitration of the case. See 14 M.R.S.A. 5928 (1980). The motion
was denied on February 7, 1980, and the parties were ordered to proceed
to arbitration "in accordance with the provisions of Article XLIV [of the]
Supervisory Services Agreement."
On May 1, 1980, the arbitrator issued an interim opinion concluding
that the grievance was arbitrable. The parties then stipulated that
Washburn had been discharged without just cause, and on May 14, 1980,
the arbitrator made a final award. This final award ordered the State
of Maine to reinstate Washburn as Director of the Bureau of Veterans
Services and to restore back earnings less earnings from other employment.
Pursuant to 14 M.R.S.A. 5937, Washburn and the Association
moved to confirm the arbitration award in Superior Court. The State
thereupon requested the court to declare that the appointment and
discharge of the Director of the Bureau of Veterans Services were
controlled by public law. After a hearing and submission of briefs,
the Superior Court vacated the award on September 5, 1980. The court
concluded that the dispute was not arbitrable under the supervisory unit
agreement executed between the State and the Association because (1) the
parties to the agreement did not intend to submit such disputes to an
arbitrator and (2) "even if the parties had so intended, their agreement
would be void as against public policy and the language of 37-A M.R.S.A.
1(4) and 5 M.R.S.A. 711(2) and 26 M.R.S.A. 979-D(1)(E)." The
court also concluded that the arbitrator exceeded his authority in
finding the dispute arbitrable and in reaching the merits of the dispute.
Having appealed to this Court, Washburn and the Association contend
that the dispute over discharging Washburn is substantively arbitrable
because (1) the parties to the supervisory services unit agreement
intended the Director of the Bureau of Veterans Services to be covered
by the terms of the contract and (2) public law does not preclude
collective bargaining over the discharge
____________________
2. Pursuant to M.R.Civ.P. 80B, the State sought review of the Board's
action in Superior Court. The court ultimately denied relief on
October 10, 1980, one month after in the case now before us that Court
vacated the arbitrator's awards. The October 10 order deals with an
issue broader than the issue before us, namely, whether the Director of
the Bureau of Veterans Services may be designated a state employee and
included within the supervisory services unit for collective bargaining
purposes in general. Here, we address the narrow issue of whether
discharge procedures to be observed with respect to the Director are a
lawful subject of collective bargaining and, therefore, substantively
arbitrable.
3. Maine State Employees Association Agreement, art. XLIII, 1
(1978-80).
4. M.R.S.A. 678 (1979).
5. Agreement, supra, note 3, art. XLIV.
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[/1239]
of a state employee serving as Director of that Bureau. We find it
unnecessary to consider their first contention because, regardless of
the parties' intentions, the discharge of a state employee in such a
directorship could not be lawfully the subject of a collective bargaining
agreement which limits the prerogative of his superior to discharge him.
While the Maine State Employees Labor Relations Act expresses a
policy favoring "the right of state 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," 26 M.R.S.A.
979 (1974), the Legislature plainly recognized that collective
bargaining with respect to particular employment conditions of specific
positions held by state employees might not always be appropriate.
The Act thus explicitly limits collective bargaining as follows:
All matters relating to the relationship between the employer
and employees shall be the subject of collective bargaining
except those matters which are prescribed or controlled by
public law.
26 M.R.S.A. 979-D(1)(E)(1) (1974) (emphasis supplied).
Provisions of the act creating the Bureau of Veterans Services and
the Maine Personnel Law are particularly relevant here. The Director
of the Bureau of Veterans Services is a position created by statute to
manage the Bureau of Veterans Services, a Bureau within the Department
of Defense and Veterans Services. 37-A M.R.S.A. 1, 11 (1978).
The Department is supervised by an Adjutant General or Commissioner,
who is appointed and serves at the pleasure of the Governor. The
Adjutant General is statutorily authorized to appoint the Director of
the Bureau of Veterans Services, who, in turn, serves "at the pleasure
of the Adjutant General." Id. 1(4). The Director may employ "necessary
assistance to carry out" the Bureau's functions. Id. 11. Also, he is
authorized to adopt "reasonable rules and regulations." Id. 12, 20.
Under the Maine Personnel Law, state employees are divided into two
categories, classified and unclassified. Employees in the classified
division are hired on the basis of merit and must generally avoid
political activity. 5 M.R.S.A. 671-73, 676-77, 679-A. In contrast,
the unclassified service includes elected officials, certain other state
employees, and so-called major policy-influencing positions. The position
Washburn held is expressly designated a major policy-influencing position
by statute. Id. 711(2)(A)(14)(c). Major policy-influencing personnel
are not afforded protections against arbitrary employer discipline under
the Maine Personnel Law.[fn]6
Both the Act creating the Bureau and the Maine Personnel Law reveal
that the terms and conditions of a discharge of a state employee serving
as the Director of the Bureau of Veterans Services are prescribed or
controlled by public law" within the meaning of 26 M.R.S.A.
979-D(1)(E)(1). Under 37-A M.R.S.A. 1 (1978), a line of authority
sensitive to political pressures experienced at the highest levels of
state government is established. The Director's superior, the Adjutant
General, serves at the pleasure of the Governor. The Adjutant General
has "the power to appoint and remove" the Director of the Bureau.
5 M.R.S.A. 711(2)(B) (1979). Just as the Adjutant General serves at
the pleasure of the Governor, "the director serves at the pleasure of
the Adjutant General." 37-A M.R.S.A. 1(4) (1978).
The phrase "at the pleasure of" is a phrase of art embodying the
concept of unfettered discretion. See Patterson v. Ramsey, 413 F. Supp.
523, 531 (D.Md. 1976) aff'd., 552 F.2d 117 (4th Cir. 1977); Rogers v.
Congleton, 27 Ky.L.Rep. 109, 110-111,
____________________
6. The Act provides in pertinent part:
An appointing authority may dismiss, suspend or otherwise
discipline an employee for cause. This right is subject
to the right of appeal and arbitration of grievances set
forth in sections 751 to 753, or by personnel rule; and
said sections 751 to 753 shall apply to any employee who
has satisfactorily completed an initial probationary
period. This paragraph shall not apply to an employee
appointed to a major policy-influencing position listed
in section 711, subsection 2.
Id. 678 (emphasis supplied).
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[/1240]
84 S.W. 521, 522 (1905); Kropp v. Common Council of City of North
Tonawanda, 207 N.Y.S.2d 411, 416, 26 Misc.2d 127, 131 (Sup. Ct. 1960).
Thus, the authority of the Adjutant General, and thence, the Governor to
discharge a state employee serving as Director for reasons other than
just cause is clearly conferred by statute. That the Legislature
intended the Adjutant General to have this prerogative is further
supported by the express exemption of employees in the position of the
Director from the statutory protections barring arbitrary discharge for
disciplinary reasons. See footnote 6 supra.
Requiring that a decision to terminate the employment of the
Director be for just cause, as the Association's contract with the State
purports to require here, clearly conflicts with the authority of the
Adjutant General conferred by statute. The political philosophy of a
Director may well influence the way in which a particular director
administers a Bureau. In the context of policy formulation and
implementation, the concept of just cause is wholly inappropriate as a
prerequisite to terminating the employment of a state employee who is
serving at major policy-influencing levels of state government since the
job performance of such an employee may be technically competent, but
politically unsatisfactory. The notion of a position being served "at
the pleasure of" a state official directly accountable to the Governor
thus preserves legitimate political interaction and accountability at
the policy-influencing levels of the Department of Defense and Veterans
Services.
Washburn and the Association nevertheless argue that the contractual
provision permitting discipline of an employee only for just cause and
the arbitration of a grievance resting on such a provision do not
conflict with the statutes governing the position of Director of the
Bureau of Veterans Services. The fact that the Director serves at the
pleasure of the Adjutant General does not mean, they argue, that the
State may not voluntarily agree in the course of collective bargaining
to place restrictions on the exercise of the prerogative.
We do not find this argument persuasive for two reasons. First,
the statute providing that the Director serve at the pleasure of the
Adjutant General accentuates by its language the Legislature's interest
in requiring the Director to serve pursuant to that condition. The
statute ordains that the Director "shall serve at the pleasure of the
Adjutant General." 37-A M.R.S.A. 1(4). As we have suggested above,
this mandate is not without a rational basis. Protracted proceedings
for the purpose of adjudicating the rectitude of dismissing the Director
risks seriously impeding the effective implementation of political
policy at the policy-influencing levels of government. It is no
accident that the Maine Personnel Law exempts state employees serving in
positions at those levels of government from the protections afforded
other state employees from arbitrary state disciplinary procedures.
See 5 M.R.S.A. 678.
Second, acceptance of this argument would lead to unacceptable
consequences. Illustratively, if the Governor or Adjutant General
voluntarily determined as a matter of policy that the prerogative to
dismiss the Director should be conceded during collective bargaining,
a newly-elected Governor might be prevented from appointing a new
Director whose views and talents were more attractive to him because a
collective bargaining agreement, negotiated and approved during the prior
Governor's term, was still binding on the State.
We conclude that the Superior Court did not err in vacating the
arbitrator's award because the terms and conditions of the discharge of
a state employee serving as Director of the Bureau of Veterans Services
were prescribed and controlled by public law, and these terms and
conditions were not, therefore, a lawful subject of a collective
bargaining agreement limiting the prerogative of the Adjutant General
to discharge the Director of this Bureau.[fn]7
____________________
7. See Board of Directors of Maine S.A.D. No. 36 v. Maine S.A.D. No. 36
Teachers Ass'n., Me., 428 A.2d 419 (1981).
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[/1241]
The entry will be:
Appeal denied.
Judgment affirmed.
All concurring.
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