Board of Educ. for Dorchester County v. Hubbard

• Decision Date: 01 September 1984
• Docket Number: Nos. 90,20,s. 90
• Citation: 305 Md. 774,506 A.2d 625
• Parties: , 31 Ed. Law Rep. 499 The BOARD OF EDUCATION FOR DORCHESTER COUNTY, Maryland v. Sherri HUBBARD et al. BOARD OF EDUCATION OF GARRETT COUNTY, Maryland v. GARRETT COUNTY TEACHERS' ASSOCIATION, INC. et al. ,
• Court: Maryland Court of Appeals

Page 774

305 Md. 774

506 A.2d 625, 31 Ed. Law Rep. 499

The BOARD OF EDUCATION FOR DORCHESTER COUNTY, Maryland v. Sherri HUBBARD et al.

BOARD OF EDUCATION OF GARRETT COUNTY, Maryland v. GARRETT COUNTY TEACHERS' ASSOCIATION, INC. et al.

Nos. 90, 20, Sept. Term, 1984.

Court of Appeals of Maryland.

April 2, 1986.

Dorothy A. Beatty (Francis B. Burch, Jr., on brief, Baltimore, and Richard M. Matthews, on brief, Cambridge, Baltimore, for appellant of No. 90.

James R. Whattam (Walter S. Levin, on brief), Baltimore, for appellee of No. 90.

Ralph M. Burnett (Burnett, Eiswert, Crawford & James, P.A., on brief), Oakland, for appellant of No. 20.

James R. Whattam (Walter S. Levin and Weinberg & Green, on brief), Baltimore, for appellee of No. 20.

No. 90 Sept. Term, 1984: Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and W. ALBERT MENCHINE Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

No. 20 Sept. Term, 1984: Argued before SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ELDRIDGE, Judge.

The Maryland General Assembly, by Maryland Code (1978, 1985 Repl.Vol.), § 6-408(b)(1) of the Education Article, gave public school employees the right to designate an exclusive negotiating agent empowered to meet with representatives of the local school board and negotiate an agreement relating "to salaries, wages, hours, and other working conditions." Section 6-408(a)(2) of the Education Article further permits the parties to "provide for binding arbitration of the grievances arising under the [collective bargaining] agreement that the parties have agreed to be subject to arbitration."

In the instant cases, the parties raise important questions as to the scope of permissible collective bargaining under these provisions. Despite the importance of these matters, we shall not be able to address them because, in our view, the applicable administrative remedies have not been invoked and exhausted.

I.

The relevant facts in each of the cases before us are as follows.

Board of Education for Dorchester County v. Sherri Hubbard et al.

Ellen Rindfuss and Sherri Hubbard are tenured classroom teachers employed by the Board of Education for Dorchester County. They are members of the unit of employees represented by Dorchester Educators, Inc., the exclusive collective bargaining representative for non-administrative public school employees in Dorchester County. The collective bargaining representative and the County Board entered into a three-year collective bargaining agreement effective July 1, 1981. The agreement defines a grievance as "a written statement by an aggrieved party that a controversy, dispute or disagreement of any kind or character exists, arising out of or in any way involving interpretation or application of the terms of this agreement." Article 12, paragraph 12.1(B). The agreement provides for a four-step grievance process, culminating in binding arbitration. The first three steps direct a grievance to be taken, first to one's immediate supervisor, second to the school principal or his designated representative, and third to the County Superintendent. If the dispute remains unresolved, the collective bargaining representative may submit the dispute to binding arbitration. The agreement further provides, in Article 12, paragraph 12.2(D), as follows:

"D. Jurisdiction and Authority of Arbitrator

The jurisdiction and authority of the arbitrator and his opinion and award shall be confined to the expressed provision or provisions of this Agreement at issue between the Association and the Board.

He shall have no authority to add to, alter, detract from, amend or modify any provision of this Agreement, or to make any award which will in any way deprive the Board of any of the powers delegated to it by law and not encompassed in this Agreement. The award of the arbitrator, in writing, except if set aside by a court of competent jurisdiction, shall be final and binding on the aggrieved employee or employees, the Association and the Board...."

The agreement also grants teachers certain substantive rights, including the following:

"Article 4--Teachers' Rights

4.1 No teacher will be disciplined or reduced in rank or compensation without just cause.

* * *

* * *

4.9 Evaluation

Teachers shall be evaluated in accordance with Public School Laws of Maryland and Board of Education Policy and Procedure."

During the 1982-1983 school year, Rindfuss and Hubbard were subject to formal observation and evaluation of their work performance. Such evaluations are routine, and are designed not only to help the evaluated teacher maintain a high level of teaching proficiency, through feedback and suggestions for improvement, but also to aid the county superintendent in his rating of each teacher's certificate as required by law.

The bylaws of the State Board of Education, Bylaw 13A.07.01.01A, COMAR 13A.07.01.01A, require that each public schoolteacher in Maryland hold a Maryland State Teacher's Certificate. ¹ These certificates are issued by the State Superintendent of Schools and are of various types, e.g., "Standard Professional Certificate" or "Advanced Professional Certificate," depending on the teacher's education and experience. Bylaw 13A.07.01.02. Besides being of various types, depending on the teacher's professional background, the certificates are of two classes: first class and second class. § 6-103(a) of the Education Article. The State Superintendent must rate each certificate "second class" when first issued. § 6-103(b). Each county superintendent, however, is then required to review and classify the certificate of each teacher in his local system at least once every two years. § 6-103(c). In deciding which class of certificate each teacher is entitled to hold, the county superintendent is statutorily required to consider the teacher's scholarship, executive ability, personality and teaching efficiency. Furthermore, it is the county superintendent's responsibility to keep a record of the class of certificate which each teacher holds.

The formal evaluations of Rindfuss and Hubbard for the 1982-1983 school year rated them unsatisfactory in several areas, and recommended that they be put on second class teacher certificates. Mr. William J. Cotten, the Superintendent of Schools for Dorchester County, after considering these recommendations, rated both teacher's certificates as second class for the 1983-1984 school year. Previously each teacher had been on a first class certificate.

Both teachers were unhappy with the substance of the teacher evaluations, and with their placement on second class certificates. They filed grievances pursuant to the procedures set out in the collective bargaining agreement, but the County Superintendent refused to consider either grievance, stating that his classification of a teacher's certificate was not subject to the grievance procedures.

The teachers sought to have their disputes submitted to binding arbitration. The County Superintendent and County Board refused to submit to arbitration, relying on their position that the classification of teacher certificates is not an arbitrable matter. When the teachers attempted to proceed to arbitration unilaterally, the County Board filed bills of complaint on September 14, 1983, in the Circuit Court for Dorchester County, asking for a declaratory judgment and an order staying arbitration. The Board based its requests for relief on three grounds: 1) that the disputes were not committed to arbitration under the terms of the collective bargaining agreement; 2) that the power to rate a teacher's certificate is vested by statute in the County Superintendent and the County Board and is not delegable to an arbitrator; and 3) that any review of a decision by a county superintendent and county board concerning the proper teacher's certificate is committed by § 4-205(c) of the Education Article ² to the State Board of Education and is not delegable to an arbitrator. The cases were consolidated before trial.

The circuit court denied the stay of arbitration, holding that "the disputes in these cases are subject to arbitration." In so holding, the court found that these disputes are within the scope of arbitration under the collective bargaining agreement. The court also found that "there was no illegal or improper delegation to arbitration" and that the disputes at issue are within the scope of permissible collective bargaining under the Education Article.

In deciding that these disputes are within the scope of permissible collective bargaining under the Education Article, the Court relied on what it deemed "persuasive" Pennsylvania authority. See School District of the City of Erie v. Erie Education Association, 67 Pa. Cmwlth. 383, 447 A.2d 686, 689 (1982). The court did not discuss the Maryland cases dealing with collective bargaining and arbitration in the public sector. See Office & Prof. Employees Int'l v. MTA, 295 Md. 88, 453 A.2d 1191 (1982); Maryland Cl. Emp. Ass'n v. Anderson, 281 Md. 496, 380 A.2d 1032 (1977); Mugford v. City of Baltimore, 185 Md. 266, 44 A.2d 745 (1945). The court did not interpret the language of § 6-408(b)(1), which authorizes collective bargaining concerning matters "that relate to salaries, wages, hours, and other working conditions," as expressly including disputes over teacher evaluations and the classification of teacher's certificates. Instead, the trial court stated that the statute does not expressly withdraw such disputes from the scope of collective bargaining and that, therefore, the County Board had authority to subject them to binding arbitration.

For these reasons, the circuit court concluded that "[u]nder the facts of these cases, respondents have the election at this point to proceed either through the appeal process contemplated by Code ... §...