Belanger v. Matteson

Mr. Justice Paolino,

concurring in part, dissenting in part. I agree with that part of the court’s opinion finding that the Union breached its duty to fairly represent the interests of Mr. Belanger, but for the reasons that follow I respectfully dissent from the remainder of the court’s opinion.

*357 The majority rejects the argument that G. L. 1956 (1969 Reenactment) § 16-2-18 1 irrevocably commits to the school committees of the several towns the power to assume the “entire care, control, and management of all the public school interests” including the selection of school teachers. They reach this result on the ground that a more recent statute dealing with a related subject matter, to wit, G. L. 1956 (1968 Reenactment) ch. 9.3 of tit. 28, the School Teachers’ Arbitration Act, takes precedence over the older §16-2-18. This precedence, they say, derives from the relative ages of the two statutes, .the changes of conditions that the passage of time inevitably works and the general caveat that an “undue fixation” with §16-2-18 would undermine and ultimately eventuate the demise of binding arbitration for teachers. The court therefore is content to interpret the teachers’ power to enter into binding arbitration regarding the “terms and conditions of professional employment,” (§28-9.3-2) so broadly as to include the power to submit to arbitrators questions of school teacher selection and promotion.

It is indeed settled law in this jurisdiction that a statutory provision which is last in order of time will be preferred over an earlier provision if the two provisions are irreconcilably repugnant. Surber v. Pearce, 97 R. I. 40, 44, 195 A.2d 541, 543 (1963). The majority has offered no proof of such a degree of repugnance between the two statutes here in question and in the absence, of a clear mandate from either the Legislature or this court regard *358 ing the exact status of teacher selection as a term or condition of employment, I believe it is unwise to create a conflict of such dimension that whole statutes are lost in the backwash. In reading statutes such as this, the court must remain mindful of the principle established in Providence Teachers Union, Local 958 v. School Comm., 108 R. I. 444, 276 A.2d 762 (1971), a case which coincidentally made the teachers’ right to arbitrate coextensive with the rights enjoyed by employees in the private sector. In that case, this court stated:

"Statutes which are not inconsistent with one another and which relate to the same subject matter are in pari materia and should be considered together so that they will harmonize with each other and be consistent with their general object and scope, even though they contain no reference to one another and were passed at different times.” Id. at 449, 276 A.2d at 765 .

Why should this principle not apply to an analysis of the arbitrators’ award that is the subject of this appeal in light of §16-2-18? That is, the older statute, dealing with the same general subject matter as relevant portions of the School Teachers’ Arbitration Act, does not, on its face, conflict therewith and therefore both statutes should be read in harmonizing fashion. A search of cases and statutory law has failed to reveal any indication that the appointment of teachers (or department heads) was, by the passage of the School Teachers’ Arbitration Act, snatched from the purview of §16-2-18 and made the subject of arbitration and- award. In view of the clear mandate of §16-2-18 and this court’s holding in Dawson v. Clark, 93 R. I. 457, 176 A.2d 732 (1962) that the school committee’s jurisdiction under that section could not be delegated in the absence of legislative authority to do so, id. at 460-61, 176 A.2d at 734,35 , I believe that the school committee is not free to delegate its unique jurisdiction *359 over the selection of teachers. To conclude this point, it seems entirely inappropriate to preempt an entire section of the General Laws on the rather meaningless ground that a more modern statute governing related areas has been enacted by the Legislature. Chapter 9.3 of tit. 28 neither expressly nor impliedly abrogates the power conferred upon the school committee by §16-2-18 to appoint teachers. This court is not in the business of repealing statutes. On the contrary, it is our duty to apply statutes according to their original intendment wherever such application is in reasonable conformity with other related statutes.

Keeping in mind the basic notion that it is incumbent upon this court to harmonize statutes wherever possible, I turn now to what I believe to be a proper analysis of the problem presented to us here. The issue in this case could be framed as follows: Is a grievance arbitrable when exclusive control over the matter at issue has been statutorily granted to the local school committee? If this quaere is answered in the negative, then any award based on a submission to arbitration of such issues is a nullity. School Comm. v. Curry, 325 N.E.2d 282, 287 (Mass. App. 1975).

Courts are virtually unanimous in holding that at least some categories of disputes are nonarbitrable by virtue of the fact that a submission of such disputes would constitute a usurpation of the exclusive statutory jurisdiction of the school committees. Comment, Defining the Scope of Grievance Arbitration in Public Education Employment Contracts, 41 U. Chi. L. Rev. 814 , 816-17 (1974) [hereinafter cited as Comment]. That is, some disputes, being formally designated as matters of management and educational policy, do not properly fall within the ambit of the School Teachers’ Arbitration Act as “terms and conditions of professional employment.” Section 28-9.3-2. *360 Essentially, therefore, the court’s task is “* * * to accommodate contractual provisions for grievance arbitration to statutes vesting management and control of educational matters in local school boards.” Comment, supra at 817.

Recent decisions of. appellate courts in Massachusetts, School Comm. v. Curry, supra, and New Jersey, Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, 64 N. J. 17, 311 A.2d 737 (1973), together provide an excellent template for decision in the case before us. The Curry case involved an appeal from a lower court vacation of an arbitration award which had reinstated a supervisor to a position which had been unilaterally abolished by the school committee. The Appeals Court affirmed, holding that the abolition of the position was “a matter of educational policy within the exclusive managerial prerogative of the school committee.” School Comm. v. Curry, supra at 286-87 . In the Dunellen case, the Supreme Court of New Jersey held that a school committee decision to consolidate department chairmanships was not reviewable by an arbitration panel in that such a consolidation was “not a proper subject of either arbitration or mandatory negotiation” under New Jersey law. Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, supra at 31, 311 A.2d at 744 . Each of these courts acknowledged that its goal was to reconcile new labor rights with earlier enactments conferring specified powers on school committees; referred to in the parlance of the laborite as management rights. School Comm. v. Curry, supra at 284-86 , Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, supra at 25, 311 A.2d at 741 . The underlying presumption of each opinion was that the respective Legislatures of the two states could not have intended, by the passage- of arbitration and collective bargaining acts, that local school committees could “abdicate their management responsibilities” to orchestrate general educational policy. School Comm. v. Curry, *361 supra at 286. The other side of this argument was forcefully presented by the New Jersey court in stating that the Legislature did contemplate a “statutory responsibility” to negotiate in good faith with employees regarding “* * * matters which intimately and directly affect the work and welfare of their employees.” Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, supra at 25, 311 A.2d at 741 . Clearly, these “matters” are those which are referred to in the arbitration acts as the “terms and conditions of employment” and are to be distinguished from those matters which relate primarily to educational policy. Disputes as to the former are negotiable and arbitrable while disputes as to the latter are neither negotiable nor arbitrable. As the Dunellen court noted, the distinction between the two areas of concern is often “shadowy” and the lack of legislative guidance on the matter prevents dispositive rulings by the courts. Id. at 25-26, 311 A.2d at 741 . The picture is further distorted by the conflicting positions of the teachers, on the one hand, who argue for an expansive reading of “terms and conditions of employment” and the school committees, on the other hand, who prefer a narrower reading of the term in order to preserve management prerogatives. Id., quoting School Dist. of Seward Educ. Ass’n v. School Dist., 188 Neb. 772, 784 , 199 N.W.2d 752, 759 (1972). The Massachusetts court astutely noted that the two areas are not mutually exclusive, that “conditions of employment” and “educational policy” do not denote two definite or distinct areas. Rather, that court stated that “ '[m]any educational policy decisions make an impact on a teacher’s conditions of employment and the converse is equally true.’ ” School Comm. v. Curry, supra at 286 , quoting West Hartford Educ. Ass’n, Inc. v. DeCourcy, 162 Conn. 566, 581 , 295 A.2d 526, 534 (1972). It is incumbent upon the courts therefore to render an interpretation of both terms when *362 ever a matter is presented which does not clearly belong in one class or the other. This chore is best executed on a case-by-case basis in view of the dearth of available guidelines for decision. Dunellen Bd. of Educ. v. Dunellen Educ. Ass’n, supra at 27, 311 A.2d at 742 , citing West Hartford Educ. Ass’n, Inc. v. DeCourcy, supra at 581 , 295 A.2d at 534 .

The ultimate outcome of such a categorization, as I stated earlier, is a determination as to whether the matter in issue is arbitrable. An award based on the submission of a dispute regarding educational policy is therefore a nullity whereas a dispute which truly involves “conditions of employment” is entirely arbitrable and the parties are entitled to, a judgment on an award arising from such a dispute.

I turn now to a consideration of the specific issue in this case. In my. view of the facts before us, we must decide whether the promotion of a school teacher to the position of department head by a school committee which has made an informed judgment as to that teacher’s personal qualifications concerns the conditions of employment for teachers in the school district and thus is properly reviewable by an arbitration panel. I believe that it is not reviewable and my position finds support in the case of Board of Educ. v. Rockford Educ. Ass’n, 3 Ill. App. 3d 1090 , 280 N.E.2d 286 (1972). The facts are similar to the case at bar. In 1969, the Board of Education for the City of Rockford, Illinois, created the promotional position of Director of Personnel and Recruitment and invited applications for said position from instructional staff members by posting an “Announcement of Vacancy.” One particular guidance counselor along with several other of his colleagues informed the board of his interest in the position and made application therefor. The guidance counselor was recommended for the *363 post by the superintendent of schools but later in the year the board rejected all applications and declined to fill the vacancy. In October 1969, the counselor initiated grievance proceedings alleging, among other things, that the board had improperly failed to promote him to the position of Director of Personnel and Recruitment. After meeting with no success at the initial stages of the procedure the issue was submitted by the counselor and the association to arbitration. The board specially appeared before the arbitrator to argue that the “* * * matter of selection or employment of employees was not intended to be included in the Professional Agreement and could not, in any event, be delegated by the Board and, therefore, it was not an arbitrable issue.” Id. at 1092 , 280 N.E.2d at 287 . This question was considered by the arbitrator who concluded that the issue was arbitrable and set it down for hearing. The trial court considered the matter and set aside the arbitrator’s award regarding the question of arbitrability and held that those portions of the agreement relating to arbitration of “matters of selection or promotion of employees” were null and void. Id. The appellate court affirmed this ruling stating that

“* * * a board may not, through a collective bargaining agreement or otherwise, delegate to another party those matters of discretion that are vested in the board by statute.” Id. at 1093 , 280 N.E.2d at 287 (Emphasis added.)

Illinois has a statute which provides that the board has the duty “[t]o appoint all teachers and fix the amount of their salaries.” 111. Rev. Stat. ch. 122, §§10-20 and 10-20.7 (Smith-Hurd Supp. 1975). Under this provision the court was compelled to hold that although the agreement prescribed a promotional policy and procedure, such appointments were to be made on the basis of individual qualifications. “The ultimate determination of ‘qualification,’ ” the court held, “was not, nor could it be, delegated *364 by the Board to any outside agency including the American Arbitration Association.” Board of Educ. v. Rockford Educ. Ass’n, supra at 1094, 280 N.E.2d at 288 . The issue was not arbitrable.

The present case lends itself to a similar line of reasoning. The plaintiff Belanger was recommended and appointed Chairman of the Business Department at Warwick Veterans Memorial High School. Subsequently, as a result of arbitration 2 which culminated a grievance procedure initiated by defendant Matteson and the Warwick Teachers’ Union, Belanger was replaced by Matte-son in accordance with the terms of the arbitrators’ award. In my view of these facts, it is important to note at this point that after an initial determination by an evaluating committee appointed by the Superintendent of Schools that Belanger was most fit among the applicants to assume the disputed position, that determination was affirmed at each step of a four-step grievance procedure. That is to say, the employee’s immediate supervisor, the Assistant Superintendent in Charge of Personnel, the Superintendent of Schools and the school committee all concurred in the decision that Belanger should fill the post. Belanger, pursuant to the terms of the announcement, was found to have the “personal qualifications determined by the administration to be necessary for appointment.” This satisfied art. V, sec. 4(b) of the agreement which reads:

“Article V

Promotional Policy

“Section 4. Application

* * *

“(b) Candidates shall be recommended on the *365 basis of qualifications for the position. Where qualifications are considered equal, seniority in the Warwick School System shall prevail.”

Because Belanger was considered to have superior qualifications, the fall-back criterion of Matteson’s seniority in the system was never reached by the administration. The arbitrators, however, in the opinion written by the chief arbitrator, embarked upon a reevaluation of the administration’s findings. They created their own standards of superiority, applied them to plaintiff’s case and reached their own de novo conclusion that the qualifications of the two candidates were “roughly equal.” Having reached this point they simply applied the seniority criterion and in their award held that “Matteson is entitled to the appointment forthwith.”

In these circumstances it is my opinion that the school committee, by permitting the submission of this matter to arbitration, unlawfully delegated the discretionary authority that has been entrusted to it by statute.

“The doctrine of the illegal delegation of power * * * is a constitutional doctrine which sometimes forbids government from sharing its powers with others. The doctrine of illegal delegation commands that certain discretionary decisions be made solely on the basis of the judgment of a designated official.” Wellington & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L. J. 1107, 1109 (1969).

In the present case, the commitment of discretionary judgment to the school committee on matters of hiring and promotion derives from several sources. The most important, of course, is §16-2-18, discussed above, which provides that “[t]he selection of teachers * * * shall be vested in the school committee.” Similarly art. XVI of the agreement is the parties’ own acknowledgment that “the School Committee possesses the sole right to * * * [hjire, assign or transfer teachers.” Finally, art. Y, sec. *366 4(b) of the agreement entrusts to the administration the power to exercise its discretion in forwarding recommendations for promotion. While these two items from the agreement have no legal effect other than directly on the parties, they indicate the parties’ acknowledgment and acceptance of the nondelegable nature of the school committee’s discretionary authority.

To conclude and to relate this to the earlier discussion, the fundamental question here is whether the decision to promote Belanger was a matter of educational policy (committed to school committee discretion) or a matter affecting the terms and conditions of employment (fully arbitrable). In view of the extreme importance of personal qualifications as a condition for advancement and the fact that the school committee made a studied evaluation of the same, it appears to me that the arbitrators were permitted to venture, beyond the proper scope of their authority in substantively reviewing the committee’s decision. Where an appointment or promotion is to be based on qualification, the final determination of that criterion is not delegable by the school committee to any outside agency, including arbitrators. Board of Educ. v. Rockford Educ. Ass’n, supra at 1093-94, 280 N.E.2d at 288 .

In view of the foregoing, I would conclude that the matter was not arbitrable and that the arbitrators’ award, ordering the installation of defendant as department head, was a nullity.

I find the majority’s opinion to be disturbing in yet another respect. That is, even if the issue submitted to the arbitrators was in fact arbitrable, I believe that the arbitrators in reaching their decision exceeded their powers *367 to a degree sufficient to render their award unenforceable. General Laws 1956 (1968 Reenactment) §28-9-18(b). 3

To determine if an arbitrator exceeded his powers it is, of course, necessary to establish what his powers are. The classic exposition of this point was offered by Mr. Justice Douglas writing for the Court in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 , 80 S.Ct. 1358 , 4 L.Ed.2d 1424 (1960):

“* * * [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” Id. at 597 , 80 S.Ct. at 1361 , 4 L.Ed.2d at 1428 .

The arbitrator therefore is confined to interpreting the agreement so as to fulfill the intentions of the parties. His power is created by the parties when the agreement of submission is entered into and the parties are free to limit those powers by agreement. Norwich Roman Catholic Diocesan Corp. v. Southern New England Contracting Co., 164 Conn. 472, 476-77 , 325 A.2d 274, 276 (1973). It is incumbent upon the court in these matters to measure the award against the grant of power. One yardstick that has been suggested as an aid to such measurement is the assumption that

“* * * absent an express provision in the contract to the contrary, the parties intended that the arbitrator should not be enabled to make an irresponsible *368 award at variance with, any possible construction of the contract * * *. This being assumed, the question for the court is whether the construction of the contract made by the arbitrator is a reasonably possible one that can seriously be made in the context in which the contract was made. Stated affirmatively, if all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract, then the court would be bound to vacate or refuse to confirm the award.” Pirsig, Some Comments on Arbitration Legislation & the Uniform Act, 10 Vand. L. Rev. 685 , 706 (1957), cited in University of Alaska v. Modern Constr., Inc., 522 P.2d 1132 , 1137 n.12 (Alas. 1974).

It is conceded that judicial review of arbitrators’ decisions is limited, yet the proper judicial remedy where an arbitrator exceeds his power by giving “perverse misconstruction” to the collective bargaining agreement, is vacation of his award. W. M. Girvan, Inc. v. Robilotto, 40 App.Div.2d 1060, 1061, 338 N.Y.S.2d 950, 953 (1972); General Laws 1956 (1968 Reenactment) §28-9-18. See generally Board of Educ. v. Champaign Educ. Ass’n, 15 Ill.App.3d 335, 340 , 304 N.E.2d 138, 141-42 (1973).

Applying these principles to the case at bar, I conclude that the arbitrators exceeded their powers in reaching their conclusion that Matteson and not Belanger was entitled to the appointment. While the arbitrators were free to interpret the agreement as it applied to promotional policy, they were not free to render a reading that was clearly contrary to the plain meaning of the contract. Livingston v. Tel-Ant Electronic Co., 4 Misc.2d 600, 605 , 138 N.Y.S.2d 111, 117 (1955). The plain meaning of art. V, sec. 4(b) of the agreement is that the emphasis in promotional matters is to be the personal qualifications of the candidate. Seniority within the school system is clearly framed as a fall-back criterion in the event of equal *369 qualification between candidates. The arbitrators, however, in requiring that the school committee meet a renewed burden of proof that the plaintiff had superior qualifications and that the defendant show only that he was Belanger’s senior, reversed the burdens of proof that the agreement anticipated. The arbitrators in this case should have required Matteson and the union to come forth with facts indicating that the committee’s decision was unreasonable. Where an agreement prescribes an elaborate four-step grievance procedure it surely does not contemplate a de novo review by an arbitration panel whose expertise may as likely as not lie in some field totally unrelated to education. The arbitrators’ function, especially in a situation where personal qualities are of utmost concern, is not to rehash the very basic considerations presented to the original evaluating committee for their seasoned judgment. Their function, as noted above, is simply to review the previous findings and the contract provisions in equal light and to determine whether the former contravene the parameters set out by the latter. In this case, the arbitrators overstepped their bounds and propounded findings that went to the basis of the decision rather than to its contractual appropriateness and its procedural correctness. It placed too onerous a burden on the school committee when the committee had already met its proper burden at every step of the promotion and grievance process.

I would find that this constituted a “perverse misconstruction” of the terms of the agreement and warrants the vacation of the award. The arbitrators plainly exceeded their powers. Consequently, §28-9-18(b) provides that the award must be vacated.

Petition for reargument denied.

*370 Letts, Quinn & Licht, Frank Licht, Richard A. Licht, for plaintiff.

Tillinghast, Collins & Graham, Frank J. Williams, for Arthur B. Matteson.

Richard A. Skolnik, for Warwick Teachers’ Union, for defendants.

General Laws 1956 (1969 Reenactment) §16-2-18 reads as follows:

"Selection of teachers and superintendent — General control of schools —Expenses.—The selection of teachers and election of superintendent, in such towns as do not unite for the employment of a superintendent, and the entire care, control, and management of all the public school interests of the several towns, shall be vested in the school committee of the several towns, and they shall also draw all orders for the payment of their expenses.”

It is important to note that plaintiff Belanger was not himself a party to the arbitration. The arbitrators’ award was the product of a submission by the teachers’ union (representing defendant Matteson) and the school committee.

General Laws 1956 (1968 Reenactment) §28-9-18, reads in part, as follows:

“Grounds for vacating award. — In any of the following cases, the court must make an order vacating the award, upon the application of any party to the controversy which was arbitrated.

“(b) Where the arbitrator or arbitrators exceeded their powers * * *."