Cape Elizabeth School Bd. v. Cape Elizabeth Teachers Ass'n

• Decision Date: 19 April 1983
• Citation: 459 A.2d 166
• Parties: 116 L.R.R.M. (BNA) 2812, 10 Ed. Law Rep. 1135 CAPE ELIZABETH SCHOOL BOARD v. CAPE ELIZABETH TEACHERS ASSOCIATION.
• Court: Maine Supreme Court

Page 166

459 A.2d 166

116 L.R.R.M. (BNA) 2812, 10 Ed. Law Rep. 1135

CAPE ELIZABETH SCHOOL BOARD v. CAPE ELIZABETH TEACHERS ASSOCIATION.

Supreme Judicial Court of Maine.

Argued Sept. 20, 1982.

Decided April 19, 1983.

Jensen, Baird, Gardner & Henry, Merton G. Henry (orally), Nicholas S. Nadzo, Michael A. Nelson, Portland, for plaintiff.

Sunenblick, Fontaine & Reben, Howard T. Reben (orally), Portland, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

The Cape Elizabeth School Board ("Board") appeals from a decision of the Superior Court confirming an arbitrator's award in favor of the Cape Elizabeth Teachers' Association ("Association"). The award reinstated Association member Martin H. Burke to his fourth-grade teaching position and awarded him back pay. The questions on appeal are (1) whether the Superior Court erred in finding that the dispute over Burke's dismissal was arbitrable under the collective bargaining agreement ("Contract") between the Board and the Association; (2) whether, if the dispute was arbitrable under the Contract, the Superior Court erred in finding that 20 M.R.S.A. § 161 authorizes the review of a statutory dismissal of a teacher under 20 M.R.S.A. § 473(4) through grievance arbitration; (3) whether the review of a statutory dismissal of a teacher under 20 M.R.S.A. § 473(4) through grievance arbitration is invalid as an unconstitutional delegation of governmental power; and (4) whether the Superior Court erred in upholding the arbitrator's decision on the merits. Since we answer each question in the negative, we affirm the judgment.

On December 20, 1977, Burke spanked a recalcitrant pupil. At the time, Burke had continuing-contract status, with over ten years' teaching experience in Cape Elizabeth elementary schools. ¹ After the incident, Dr. Bruce Thurlow, the Cape Elizabeth Superintendent of Schools, suspended Burke with pay, investigated the incident, and recommended the Board conduct a hearing to determine whether to dismiss Burke. After notice to Burke and a public hearing, the Board concluded that Burke was, in fact, unfit to teach and that his services were unprofitable to the school. The Board issued him a "certificate of dismissal" pursuant to 20 M.R.S.A. § 473(4). ²

The association filed a grievance on behalf of Burke, alleging that the dismissal was without just cause. After the Board rejected the grievance, the Association, in late February, 1978, submitted Burke's dismissal to grievance arbitration. ³ The arbitrator, Alfonso D'Apuzzo, issued an interim award holding that the dismissal of a continuing-contract teacher pursuant to 20 M.R.S.A. § 473(4) is arbitrable under the Contract. ⁴ After a full hearing, extending over four days, the arbitrator decided on May 14, 1981, that the dismissal was in violation of the Contract and ordered reinstatement and back pay.

In June, 1981, the Board filed a motion in Superior Court, Cumberland County, to vacate the arbitration award pursuant to 14 M.R.S.A. § 5938, and the Association filed a cross-motion to confirm the award pursuant to 14 M.R.S.A. § 5937. The Board appeals the Superior Court's judgment confirming the award and denying the motion to vacate.

I. Substantive arbitrability

The Uniform Arbitration Act requires a reviewing court to vacate an award if the parties did not agree to submit the dispute to arbitration. 14 M.R.S.A. § 5938(1)(E) (1980). ⁵ This is the question of substantive arbitrability. The final decision on substantive arbitrability is the function of the court, not of the arbitrator. Westbrook School Committee v. Westbrook Teachers Association, 404 A.2d 204, 207 (Me.1979). The question before us is whether the Association and the Board intended to submit statutory dismissals under 20 M.R.S.A. § 473(4) (1964) (" § 473(4)") to grievance arbitration.

As we explained in Westbrook, there is a broad presumption under Maine law favoring substantive arbitrability:

[T]he Maine legislature's strong policy favoring arbitration dictates a conclusion that the dispute has been subjected to arbitration if the parties have generally agreed to arbitrate disputes and if 'the party seeking arbitration is making a claim which, on its face, is governed by the collective bargaining contract.' .... By an alternative formulation it has been held that a court will find a dispute arbitrable 'unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'

404 A.2d 207-08 (footnotes and citations omitted). In view of that policy, the Superior Court correctly ruled that the parties intended the dispute to be arbitrable.

The Contract shows clearly that the parties have agreed, in general, to arbitrate disputes. It includes a general agreement to submit to arbitration any grievance still unresolved after the first three formal levels of grievance procedure. Section 5-1-1 defines a grievance as "a difference between the administration and one or more teachers and/or the Association involving an alleged violation, misinterpretation or misapplication of any rule, regulation or policy of the Cape Elizabeth public schools."

Burke's claim arising from his statutory dismissal is one that is on its face governed by the Contract. Section 5-2-6 specifically provides: "In a grievance involving the discharge of a teacher [on] ⁶ continuing contract or the nonrenewal of a continuing contract without just cause, the decision of the arbitrator shall be final and binding on both parties."

The Board argues that a § 473(4) dismissal cannot be a "grievance" under section 5-1-1, allowing arbitration, because such a dismissal must be based on statutory criteria rather than "an alleged violation ... of any rule, regulation or policy of the Cape Elizabeth Schools." That argument, however, neglects the overlap between the § 473(4) criteria--unfitness to teach and unprofitability of services to the school--and violations of Cape Elizabeth School policies. As the Board itself stated in its § 473(4) certificate of dismissal, the spanking incident--the event that triggered the proceedings leading to Burke's dismissal--was "contrary to the policies of the Cape Elizabeth School Board."

II. Effect of 20 M.R.S.A. § 161(5)

The next question is whether a school board may make its statutory authority to dismiss nonprobationary teachers subject to binding grievance arbitration. The question involves the interplay among three statutes, 20 M.R.S.A. § 473(4), 20 M.R.S.A. § 161(5) (Pamph.1982), and 26 M.R.S.A. ch. 9-A (§§ 961-974) (1974 & Supp.1982). As noted above, ⁷ section 473(4) requires school boards to dismiss nonprobationary teachers who prove unfit to teach or whose services they deem unprofitable to the school. Section 161(5) authorizes superintendents not to renew the expired contracts of nonprobationary teachers. Section 161(5), as amended in 1976, also provides: "Just cause for dismissal or nonrenewal may be a negotiable item in accordance with the procedures set forth in Title 26, c. 9-A, for teachers who have served beyond the probationary period." P.L.1975, CH. 723, § 2. TITLE 26⁸, ch. 9-A, known as the Municipal Public Employees Labor Relations Law, provides for collective bargaining, including arbitration, between municipalities and their employees. 26 M.R.S.A., ch. 9-A.

In 1975, the Superior Court, in a decision later affirmed by the Law Court in Superintending School Committee v. Winslow Education Association, 363 A.2d 229 (Me.1976), held that a school board may not be required by interest arbitration to accept "just cause" and grievance arbitration provisions in collective bargaining agreements pertaining to § 161(5) nonrenewals and § 473(4) dismissals. The legislature responded to the Superior Court's holding by enacting the 1976 amendment to § 161(5). See 3 Legis.Rec. 579-80 (1976) (statement of Sen. Katz); 3 Legis.Rec. 635 (1976) (statement of Rep. Mitchell); 3 Legis.Rec. 946 (1976) (statement of Rep. Garsoe).

This Court has never decided whether § 161(5), as amended, permits school boards voluntarily to include in their collective bargaining agreements provisions for binding arbitration of § 473(4) dismissals. See Churchill v. School Administrative District No. 49 Teachers Association, 380 A.2d 186, 194 n. 10 (Me.1977). Absent the amendment, school boards would probably lack statutory authority to subject § 473(4) dismissals to review by arbitration. As we said in Winslow, a pre-amendment case, ⁹ the language of § 473(4) "demonstrates that, at least as regards dismissal, the legislature vested sole authority in the school committee, subject only to judicial review." Winslow, 363 A.2d at 234; cf. Board of Directors of Maine School Administrative District No. 36 v. Maine School Administrative District No. 36 Teachers Association, 428 A.2d 419 (Me.1981) (school board may not make its statutory authority over hiring teachers subject to grievance arbitration). However, there can be no doubt that the 1976 amendment to § 161(5) empowers school committees and teacher associations to enter voluntarily into a binding, "just cause" grievance arbitration provision concerning dismissals and nonrenewals. Winslow, 363 A.2d at 231 n. 3 (dictum).

The 1976 amendment to § 161(5) does not indicate in so many words that it was intended to amend a school board's authority under § 473(4) to dismiss unfit teachers. The Board contends that the 1976 amendment should be read to permit grievance arbitration of § 161(5) nonrenewals but not § 473(4) dismissals--in other words, that the 1976 amendment should not be construed to amend § 473(4) by implication. We disagree. In the context of the entire amendment, the word "dismissal" can refer only to statutory dismissal under § 473(4). To follow the Board's interpretation would require, in effect, total disregard of that word in the...