The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 98
Docket: Cum-14-255
Argued: May 12, 2015
Decided: July 30, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
REGIONAL SCHOOL UNIT NO. 5
v.
THE COASTAL EDUCATION ASSOCIATION
ALEXANDER, J.
[¶1] The Coastal Education Association (the Association), an affiliate of a
union representing teachers, appeals from a judgment of the Superior Court
(Cumberland County, Warren, J.) vacating an arbitration award, which had
required Regional School Unit No. 5 (RSU No. 5) to rescind an educational policy
requiring that elementary school teachers be present in their classrooms ten
minutes before the start of the instructional day. The court concluded that this
dispute was not substantively arbitrable pursuant to the Municipal Public
Employees Labor Relations Law (MPELRL), 26 M.R.S. §§ 961-974 (2014), which
prevents school boards from bargaining on matters of educational policy or
submitting educational policy disputes to interest arbitration, see id. § 965(1)(C).
2
[¶2] The Association argues that the court erred in vacating the award
because the record supported the arbitrator’s finding that the challenged classroom
policy had a greater effect on working conditions than on educational policy, and
that the court’s decision is contrary to the broad presumption favoring substantive
arbitrability. The trial court was correct in its conclusion that the educational
policy requiring teachers to be in their classrooms ten minutes before the start of
the instructional day was, as a matter of law, not substantively arbitrable.
Accordingly, we affirm the judgment.
I. CASE HISTORY
[¶3] The essential facts are not in dispute. In 2009, three Maine school
districts—Freeport, Pownal, and Durham—merged to form RSU No. 5. In
May 2012, the Association and the Board of Directors of RSU No. 5 (the Board)
executed a collective bargaining agreement that would take effect for the
2012-2013 academic year. Before the agreement was negotiated, Freeport
teachers, unlike teachers in Pownal and Durham, were not obligated to arrive at
their schools until the very moment that the instructional day began.1 The Board
became concerned that elementary students in Freeport were congregating outside
their classrooms and not entering the classrooms until the start of the instructional
1
The teachers were and are paid for workdays of seven hours that begin before the
six-and-one-half-hour instructional day begins.
3
day when teachers arrived. Thereafter, students took some time to settle down
before the instructional process could actually begin.
[¶4] During negotiations over the collective bargaining agreement, the
Board took the position that teachers should be available to meet with parents
during the ten-minute period before the start of the school day. The parties agreed
to include in article 9(E) of the collective bargaining agreement a requirement
(the ten-minute requirement) that “[a]ll educators will be in the building ten (10)
minutes before the beginning of their defined instructional day . . . . Educators
recognize that they have a responsibility to be in their rooms and ready to start the
student day at the beginning of each school day.” There was no expectation on the
part of the Board that teachers would have an obligation to engage in instructional
activities during this ten-minute period.
[¶5] Article 9(B) of the collective bargaining agreement codified an
understanding between the parties that several aspects of management of the
school day—namely “the length of the instructional day, amount of teaching time,
planning and preparation time, and meeting times during the instructional day”—
were matters of educational policy and would be subject to the agreement’s “meet
and consult” and impact bargaining provisions.
[¶6] Pursuant to article 27(A) of the collective bargaining agreement, the
Board was given the “legal right to change educational policies during the term of
4
the agreement,” and, if it did so, the Board agreed that it would notify the
Association before implementing the change, “so that the Association may . . .
invoke its legal right to meet and consult about the change. If the policy is
changed, the Board shall, upon request, bargain collectively with the Association
regarding the impact of the changes on wages, hours, and working conditions of
bargaining unit educators.”
[¶7] The “Management Rights” provision of article 4 further provided:
Except as explicitly limited by a specific provision of this Agreement,
the Board shall have the exclusive right to take any action it deems
appropriate in the management and operation of [RSU No. 5], the
implementation of educational policies, and in the direction of the
work of the educators in the bargaining unit. Such rights include, but
shall not be limited to, the operation of the school district, the right to
discharge, to change assignments, to promote, to suspend, to
discipline, to establish working schedules, to introduce new or
improved methods or facilities, and to contract and subcontract work
assignments.
[¶8] The present dispute arose from the district elementary school
principal’s interpretation of the article 9(E) ten-minute requirement and its impact
on the Freeport elementary schools. Prior to the beginning of the 2012-2013
school year, the principal distributed to Freeport elementary school teachers a staff
handbook that contained an explanation of the ten-minute requirement. During an
in-service meeting, the principal interpreted the requirement to mean that teachers
were expected to be in their classrooms, rather than elsewhere in the building, to
5
meet and greet students during those ten minutes before the start of the
instructional day. This interpretation did not extend either the workday or the
instructional day, and it did not change the amount of time for which the teachers
would be paid.
[¶9] The Association objected to the directive that teachers be in their
classrooms to enable students to get settled before the start of the instructional day.
Despite that objection, the Association did not request that the Board participate in
an impact bargaining process pursuant to article 27(A)(4) of the collective
bargaining agreement.
[¶10] In November 2012, however, the Association filed a grievance with
RSU No. 5 challenging the principal’s interpretation as a violation of article 9(E)
of the collective bargaining agreement. The dispute proceeded through the four
levels of grievance procedure provided in article 26 of the collective bargaining
agreement. The superintendent denied the grievance at the Level II phase, citing
article 4 of the collective bargaining agreement as granting the Board the right to
direct the work of educators. The Board denied the grievance at Level III,
adopting the same reasoning and directing the superintendent “to instruct
administration to work to clarify and attempt to find an equitable solution.”
[¶11] In April 2013, the Association, as authorized by the collective
bargaining agreement, filed a demand for arbitration, arguing that the principal’s
6
interpretation (1) was inconsistent with article 9(E), which it asserted should
govern, and (2) had the effect of extending the teachers’ instructional day. The
Association sought pro-rated per diem pay for affected elementary school teachers
as a remedy. RSU No. 5 argued that the ten-minute requirement was a matter of
educational policy on which it lacked authority to negotiate pursuant to 26 M.R.S.
§ 965(1)(C), and thus, that the issue was not substantively arbitrable. RSU No. 5
also argued that articles 4, 9, and 27 authorized it to direct the work of teachers and
assign them supervisory duties during the ten-minute period.
[¶12] After a hearing during which the arbitrator heard testimony from
Freeport elementary school teachers, the elementary school principal, and the
district superintendent, the arbitrator issued a final award in December 2013. In it,
the arbitrator concluded that (1) the principal’s interpretation of the article 9(E)
ten-minute requirement “primarily affects teachers’ ‘working conditions’ and is not
primarily a matter of ‘educational policy,”’ thus making the Association’s
grievance arbitrable, and (2) the principal’s “classroom” directive violated the
terms of article 9(E). As a remedy, the arbitrator directed RSU No. 5 to rescind the
interpretation of the policy that required teachers to be in their classrooms ten
minutes before the start of the instructional day, but concluded that a per diem pay
financial remedy was inappropriate without any evidence that the teachers had
suffered financial loss.
7
[¶13] RSU No. 5 timely filed an application to vacate the arbitration award
with the Superior Court pursuant to Maine’s Uniform Arbitration Act (UAA),
14 M.R.S. §§ 5927-5949 (2014). See id. § 5938 (outlining the procedure for
vacating an arbitration award). RSU No. 5 argued that the arbitrator exceeded his
powers pursuant to 14 M.R.S. § 5938(1)(C) by concluding that the Association’s
grievance was substantively arbitrable and interpreting the collective bargaining
agreement in a manner that undermined the Board’s statutory authority to establish
educational policy for the best interests of its students.
[¶14] In May 2014, the court granted RSU No. 5’s application to vacate the
arbitration award, concluding, as a matter of law, that the principal’s interpretation
of the ten-minute requirement “falls distinctly into the area of educational policy
under prior interpretations of the Law Court and the Maine Labor Relations Board”
(MLRB). Accordingly, the court concluded, RSU No. 5 could not voluntarily
arbitrate the issue.2 Additionally, the court concluded that the Association had not
met its burden to invoke its right to meet and consult over issues of educational
policy pursuant to article 27(A)(4) of the collective bargaining agreement,
2
The court also noted that, given the express language in the agreement defining the instructional day,
the principal’s “classroom” directive did not have the effect of extending the instructional day. Because
the parties do not appear to dispute this conclusion on appeal, and the Association concedes that the
directive does not change the length of the school day, this issue is not addressed further.
8
choosing instead to file a grievance under the contract. The Association filed this
timely appeal pursuant to 14 M.R.S. § 5945(1)(E) and M.R. App. P. 2.
II. LEGAL ANALYSIS
A. Standard of Review
[¶15] Pursuant to the UAA, a trial court reviewing an arbitration award
“reviews both the substantive determination of arbitrability and the power
exercised in granting an award.” Granger N., Inc. v. Cianchette, 572 A.2d 136,
138 (Me. 1990); see 14 M.R.S. § 5938(1)(C), (E).3 A court must vacate an
arbitration award if the dispute is not substantively arbitrable; that is, “if the parties
did not agree to arbitrate.” V.I.P., Inc. v. First Tree Dev. Ltd. Liab. Co.,
2001 ME 73, ¶ 3, 770 A.2d 95; see also Anderson v. Banks, 2012 ME 6, ¶¶ 13, 17,
37 A.3d 915. In considering whether the parties agreed to arbitrate a dispute,
“[g]eneral rules of contract interpretation apply,” and the “contract is to be
interpreted to effect the parties’ intentions as reflected in the written instrument,
construed with regard for the subject matter, motive, and purpose of the agreement,
as well as the object to be accomplished.” V.I.P., 2001 ME 73, ¶ 3, 770 A.2d 95.
3
We have differentiated between judicial review of an arbitration award pursuant to
14 M.R.S. § 5938(1)(E) (2014), which “examines the arbitrability of the dispute as a whole,” and
14 M.R.S. § 5938(1)(C) (2014), which, in considering whether the arbitrator exceeded his or her power,
“examines the way the arbitrator decided the merits of the dispute.” Anderson v. Banks, 2012 ME 6, ¶ 17,
37 A.3d 915. Although the court in this case did not specify on which basis it was vacating the award, we
treat the two subsections together because they “overlap in that, without an agreement to arbitrate a
particular dispute, the arbitrator has no power to render an award.” Id.; see Westbrook Sch. Comm. v.
Westbrook Teachers Ass’n, 404 A.2d 204, 206-07 n.4 (Me. 1979).
9
[¶16] Although there may be certain factual considerations involved in an
arbitrator’s determination of whether parties agreed to arbitrate a given issue, it is
ultimately a question of law, and we have held that “[t]he final decision on the
question of substantive arbitrability rests with the court.” Roosa v. Tillotson,
1997 ME 121, ¶ 2, 695 A.2d 1196. Our review of the trial court’s decision with
respect to arbitrability is de novo, limited to errors of law. See Granger N.,
572 A.2d at 138.
B. Educational Policy vs. Working Conditions
[¶17] The MPELRL imposes upon school boards and teachers’ associations
the obligation “[t]o confer and negotiate in good faith with respect to wages, hours,
working conditions and contract grievance arbitration.” 26 M.R.S. § 965(1)(C).
This provision “empowers a school committee to enter into binding arbitration
agreements in the areas of hours and working conditions and, within those areas, to
make adequate provisions for contract grievance arbitration.” Superintending Sch.
Comm. v. Portland Teachers’ Ass’n, 338 A.2d 155, 157 (Me. 1975).
[¶18] By contrast, matters of educational policy are excluded from
mandatory bargaining by the provision that “public employers of teachers shall
meet and consult but not negotiate with respect to educational policies.”
26 M.R.S. § 965(1)(C) (emphasis added). This exception “prohibits the school
district from negotiating with teachers about educational policy,” and accordingly,
10
“educational policy decisions are not subject to the grievance and arbitration
procedure.” Sch. Admin. Dist. No. 58 v. Mount Abram Teachers Ass’n (MSAD 58),
1997 ME 219, ¶ 5, 704 A.2d 349.
[¶19] We have further held that the mere inclusion of a matter of
educational policy in a collective bargaining agreement does not make that
educational policy subject to arbitration.4 See Bd. of Dirs. of Me. Sch. Admin. Dist.
No. 36 v. Me. Sch. Admin. Dist. No. 36 Teachers Ass’n (MSAD 36), 428 A.2d 419,
422 (Me. 1981) (holding that a school board “could not lawfully limit its statutory
responsibility for choosing teachers through a collective bargaining agreement,
even though entered into voluntarily”). One rationale behind the educational
policy exception is that “the [L]egislature deemed ‘educational policies’ to involve
value choices so fundamental that binding decisions concerning them should be
made essentially unilaterally and by persons directly responsible to the people.”
City of Biddeford v. Biddeford Teachers Ass’n, 304 A.2d 387, 414 (Me. 1973)
(Wernick, J., concurring in part and dissenting in part).
4
Although some bills have been introduced in the Legislature in recent years that would more clearly
open issues of educational policy up to collective bargaining, see L.D. 1344, § 1 (121st Legis. 2003)
(providing that school boards “may negotiate with respect to educational policies”); L.D. 158, § 1
(122nd Legis. 2005) (providing a clarification that “[p]rovisions in collective bargaining agreements that
are later found to control matters of educational policy are neither void nor voidable for that reason but
are enforceable only for the term of the agreement”), these proposals have not been enacted.
11
[¶20] Neither “educational policies” nor “working conditions” is defined by
the MPELRL, except that “educational policies may not include wages, hours,
working conditions or contract grievance arbitration.” 26 M.R.S. § 965(1)(C).
The two areas are not compartmentalized; rather, they exist on a continuum and
often blend together, and determinations must be made on a case-by-case basis.
See City of Biddeford, 304 A.2d at 413, 420 (Wernick, J., concurring in part and
dissenting in part).
[¶21] A balancing test has been applied to these determinations by the
courts and the MLRB. In MSAD 58, we held that a district’s imposition of a
curriculum plan to teach from a book with some sexually explicit content was an
educational policy not subject to mandatory bargaining, stating that “[a]lthough the
conditions may affect a teacher’s preparation of a lesson plan, this incidental effect
on teaching techniques does not transform an educational policy into teacher
working conditions.” 1997 ME 219, ¶¶ 2, 7, 704 A.2d 349.
[¶22] The MLRB has held that supervision of school buildings and
playgrounds during recess, lunch periods, and before school is a matter of
educational policy not subject to mandatory bargaining. See Peru Teachers Ass’n
v. Peru Sch. Comm., No. 78-IR-01 at 1, 3 (Me. Labor Relations Bd. July 10, 1978)
(interpretive ruling stating that such supervision involves “a substantial
‘managerial’ consideration—over and above encroachment upon managerial
12
supervision, organization, direction and distribution of personnel”); Ingerson v.
Millinocket Sch. Comm., No. 77-39 at 4 (Me. Labor Relations Bd. Oct. 14, 1977)
(“[P]re-school and noon playground duties relating to the attendance of teachers at
school at times when students will be in attendance are matters of educational
policy and intended to remain outside the scope of mandatory collective
bargaining.”). By contrast, the MLRB has held that nonprofessional or purely
administrative duties, such as collecting milk and lunch money and distributing
lunch to students, are working conditions subject to mandatory bargaining. See
Peru Teachers Ass’n, No. 78-IR-01 at 1-2 (Me. Labor Relations Bd.
July 10, 1978).
[¶23] Appropriate student supervision is necessarily a matter of significant
importance to school boards during times when students are present at school.
See id. at 3. Student supervisory duties affect parent-teacher and student-teacher
relations and may assist in improving transitions between periods and promoting
student safety. The fact that the ten-minute requirement may touch upon teacher
working conditions in some respects does not render it automatically subject to
mandatory bargaining. See MSAD 58, 1997 ME 219, ¶¶ 5-7, 704 A.2d 349.
[¶24] Our conclusion that the Superior Court correctly determined that the
parties did not intend to collectively bargain the requirement that teachers be
available to address student and parent needs in classrooms as those students are
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arriving at school is bolstered by the language of the collective bargaining
agreement. Pursuant to article 9(B), provisions involving teacher “planning and
preparation time” and the “amount of teaching time” that takes place are defined as
matters of educational policy. Article 4 further provides that the Board has “the
exclusive right to take any action it deems appropriate” to manage the work of
teachers and establish their work schedules. Article 27(A) vests RSU No. 5 with
the authority to adjust such requirements as needed, subject to the meet and consult
provisions.
[¶25] Before this dispute arose, article 9(E) already provided that “[a]ll
educators will be in the building ten . . . minutes before the beginning of their
defined instructional day.” RSU No. 5 did not, by voluntarily including this
provision in the collective bargaining agreement, relinquish its own authority to
adjust this portion of the teacher workday to improve student supervision. See
MSAD 36, 428 A.2d at 422-23. The elementary school principal’s decision
interpreting the ten-minute requirement to ensure that teachers are in the classroom
during these ten minutes in order to best meet students’ needs was an educational
policy determination that was within RSU No. 5’s discretion.
C. Conclusion
[¶26] Whether article 9(E) is essentially an educational policy or a policy
affecting working conditions is a mixed question of fact and law. There is no
14
bright line that guides us as to where on the continuum the facts fall. The historical
facts relevant to the parties’ dispute in this case, however, are undisputed.
Accordingly, for the reasons set forth above, we conclude that the ten-minute
requirement found in article 9(E) and its subsequent interpretation are
predominantly a matter of educational policy and therefore not subject to
substantive arbitration.5 We affirm the trial court’s conclusion that the arbitrator
exceeded his authority. See 14 M.R.S. § 5938(1)(C), (E); MSAD 58,
1997 ME 219, ¶¶ 5-7, 704 A.2d 349; MSAD 36, 428 A.2d at 422-23.
The entry is:
Judgment affirmed.
On the briefs:
Donald F. Fontaine, Esq., Law Offices of Donald F. Fontaine,
Portland, and Shawn C. Keenan, Esq., Maine Education
Association, Augusta, for appellant The Coastal Education
Association
Peter C. Felmly, Esq., and Michael L. Buescher, Esq.,
Drummond Woodsum, Portland, for appellee Regional School
Unit No. 5
5
Because we reach the conclusion that the requirement at issue constitutes educational policy, we do
not address additional policy arguments or suggested frameworks for judicial review raised by the
Association.
15
At oral argument:
Donald F. Fontaine, Esq., for appellant The Coastal Education
Association
Peter C. Felmly, Esq., for appellee Regional School Unit No. 5
Cumberland County Superior Court docket number CV-2014-35
FOR CLERK REFERENCE ONLY