Supreme Judicial Court of Maine
Elden L. CHURCHILL, as Superintendent of Schools, S.A.D. # 49, et al.
v.
S.A.D. # 49 TEACHERS ASSOCIATION
November 18, 1977
Before DUFRESNE, C.J. and POMEROY, WERNICK, ARCHIBALD and
DELAHANTY, JJ.
DUFRESNE, Active Retired Justice.[fn]1
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School Administrative District No. 49 (the District), organized and
certified pursuant to 20 M.R.S.A., 216, entered into an amended
collective bargaining agreement (agreement) with the School Administrative
District No. 49 Teachers Association (Association) pursuant to 26 M.R.S.A.,
965. Article V(A) of the amended agreement contains the following
"agency shop" provision:
"As a condition of continued employment in S.A.D. #49,
non-members of the T.A. [Teachers Association] should pay their
equitable proportion of the cost of representation by the T.A.
"Upon written authorization by the said teacher, the Board agrees
to authorize the central office to deduct such fees, equal to but
not in excess of the equivalent of T.A. dues, and to submit same to
the T.A.
"It shall be the sole responsibility of the T.A. to administer
these provisions."
A number of teachers, who belonged to the bargaining unit represented
by the Association but were not members of the Association, refused to
authorize the deduction of any fees from their wages in implementation of
Article V(A) of the agreement. At this turn of events, the Association
requested from the Board of Directors of the District (Board) the
termination of the employment contracts of the recalcitrant teachers and,
when no action was being taken on its request, it initiated a grievance
proceeding to enforce its demand.
Before the grievance was scheduled to go to arbitration, however,
the Superintendent of Schools of the District and the Board of Directors
commenced the instant complaint in the Superior Court (Kennebec County)
pursuant to 14 M.R.S.A., 5951-5963 for the purpose of having a
judicial determination respecting the validity of the reference "agency
shop" provision of the agreement in the light of 20 M.R.S.A., 473(4)
and 26 M.R.S.A., 963 and 964(1)(A), (B) and (2)(A). The plaintiffs at
the same time sought injunctive relief against the further processing of
the alleged grievance through arbitration until the validity of the
"agency shop" provision be established.
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1. Mr. Justice Dufresne sat at argument and participated in consultation
while he was Chief Justice, and, on order of his successor, Mr. Chief
Justice McKusick, was empowered and authorized to continue his
participation in the case in his capacity of Active Retired Justice.
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The Association countered with a motion to dismiss the complaint
under Rule 12(b)(6), M.R.C.P. for failure to state a claim upon which
relief can be granted, and on the further ground that the Court below
lacked jurisdiction of the subject matter.
The Superior Court Justice denied the Association's motion to dismiss
the complaint and refused the plaintiffs' request for a stay of the
arbitration proceeding.
Feeling aggrieved by the Court's failure to rule on the validity of
the legal issue -- whether the "agency shop" clause was valid -- and by
the Court's deference to the arbitration process for its resolution, the
plaintiffs filed a motion to report the question to the Law Court pursuant
to Rule 72(c), M.R.C.P.[fn]2 Over the defendant's objection, the presiding
Justice granted the motion by issuing the following order which, in
pertinent part, reads as follows:
"[The] Court being of the opinion that questions of law involved in
said Order and Ruling ought to be determined by the Law Court before
any further proceedings are taken therein and, on motion by the
aggrieved party, . . .
"It is ordered that this action be reported to the Law Court in
accordance with Rule 72(c) and that all further proceedings related
thereto be stayed pending decision of the Law Court."
Procedural sufficiency of the report
The appellee Association first bases its objection to the report of
the case on the ground that the issue raised by the offensive court ruling
was not specifically delineated therein. We said in Collett v. Bither,
1970, Me., 262 A.2d 353 at 354 that a trial judge may report an
interlocutory matter upon the unilateral request of an aggrieved party,
pursuant to Rule 72(c), M.R.C.P., provided that 1) the court has made a
ruling in the matter, 2) the movant is an aggrieved party and 3) the trial
judge certifies that in his opinion the question of law involved in the
interlocutory order or ruling ought to be determined by the Law Court
before any further proceedings are taken. Nothing in the rule itself
suggests that the ruling about which the movant complains must be
expressly set up in formal questionnaire to the Law Court either in the
motion to report or in the justice's certificate. So long as the record
clearly identifies the issue raised and contains the necessary information
to permit a determination of the question, no further particularization
is required. Furthermore, whether the trial justice should report an
interlocutory order is entirely within his sound judicial discretion.
MacLean v. Jack, 1964, 160 Me. 93, 198 A.2d 1. There was no abuse of
discretion on the part of the presiding Justice who must have viewed the
issue properly circumscribed for ready understanding by the Law Court.
Substantive sufficiency of the report
The appellee Association's second objection brings up the propriety
of the report in the light of 26 M.R.S.A., 970.[fn]3 The claim is that
the Justice below was correct, both, in his refusal to grant summary
judgment in favor of the Board for illegality of the "agency shop"
provision of the agreement, and, in his denial of the Board's request for
a stay of the arbitration proceeding, all, it is
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2. RULE 72(c) Report of Interlocutory Rulings. If the court is of the
opinion that a question of law involved in an interlocutory order or
ruling made by it in any action ought to be determined by the Law Court
before any further proceedings are taken therein, it may on motion of
the aggrieved party report the case to the Law Court for that purpose and
stay all further proceedings except such as are necessary to preserve the
rights of the parties without making any decision therein.
3. 26 M.R.S.A., 970. Scope of binding contract arbitration
"A collective bargaining agreement between a public employer and a
bargaining agent may provide for binding arbitration as the final step
of a grievance procedure, but the only grievances which may be taken to
such binding arbitration shall be disputes between the parties as to the
meaning or application of the specific terms of the collective
bargaining agreement. An arbitrator with the power to make binding
decisions pursuant to any such provision shall have no authority to add
to, subtract from or modify the collective bargaining agreement."
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said, pursuant to the doctrine of primary jurisdiction. We did say in
State ex rel. Brennan v. R.D. Realty Corporation, 1975, Me., 349 A.2d
201, at 207, that
"[as] a matter of judicial policy we will generally not decide an
issue concerning which an administrative agency has decision capacity
until after the agency has considered the issue."
In R.D. Realty, the issue at hand involved a mixed question of law and
fact. As pointed out in that case the controlling consideration in
support of the doctrine of deference of courts to administrative agencies
lies in the fact that the agency "has developed an expertise in resolving
the special problems with which it is, by law, required to become
concerned," and the "[merest] prudence suggests that the courts ought to
have the benefit of the . . . [Agency's] prior expert evaluation of
controverted facts, before it intervenes in a controversy over which
the . . . [Agency] has jurisdiction." (Underscoring provided).
There are exceptions to the doctrine of primary jurisdiction
excusing the non-exhaustion of administrative remedies, and one of the
exceptions is, where the questions involved are questions of law only
which the courts must ultimately decide. The issue of the legality of
the "agency shop" agreement in the instant case is one solely of law,
wherein the special expertise of the administrative agency would be of no
significant benefit. See Stanton v. Trustees of St. Joseph's College,
1967, Me., 233 A.2d 718, 724.
Also, where the administrative agency is not empowered to grant the
relief sought and it would be futile to complete the administrative appeal
process, such are special circumstances dispensing with the exhaustion of
the administrative remedy prior to turning to the courts for relief. The
claimed illegality of the "agency shop" provision of the agreement
qualifies as a special situation where original recourse to the courts
should be used rather than proceeding at the administrative level. See
Maine State Employees Ass'n v. Williams, 1977, Me., 373 A.2d 258, 261,
where we said:
"The issue of whether 13 cents per mile is a fair reimbursement
for the use of a privately owned automobile on state business, being
the only rate authorized by statute, cannot be deemed a grievance
against a particular state agency since that agency has no power to
allow reimbursement beyond the statutory rate."
As provided in 26 M.R.S.A., 970 (note 3 supra), the only grievances
which may be taken before an arbitrator empowered to make binding decisions
are disputes between the parties as to the meaning or application of the
specific terms of the collective bargaining agreement. Where the instant
agreement contained an "agency shop" provision, such arbitrator must assume
its validity as he has no authority to subtract it from the agreement for
illegality, nor can he modify the agreement by considering it unlawful.
Hence, the report of the Court's ruling was in that aspect proper. See
Lewiston Firefighters Ass'n v. City of Lewiston, 1976, Me., 354 A.2d 154,
167.
The Board -- an aggrieved party
Prior to the report of the case, the defendant Association had moved
to dismiss the plaintiff Board's complaint for declaratory judgment
respecting the validity of the "agency shop" provision of the agreement.
The presiding Justice denied the Association's motion, but at the same
time he refused to grant the Board's request for a stay of the order to
submit the alleged grievance to arbitration.
"For aggrievement by a judgment or order, such judgment or order must
operate prejudicially and directly upon a party's property, pecuniary or
personal rights." Jamison v. Shepard, 1970, Me., 270 A.2d 861, 862.
Although the Justice's ruling on the motion to dismiss the Board's
complaint was unfavorable to the Association, it is clear, in the light of
26 M.R.S.A., 970 which compelled the arbitrator to assume the validity
of the "agency shop" provision of the agreement,
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that the Court was actually sustaining the Association's contentions on
that issue. The Justice's simultaneous denial of a stay of the
arbitration process unmistakably characterizes his overall action as an
adjudication prejudicially and directly adverse to the rights of the Board.
We conclude that the Board was an aggrieved party within the meaning
of Rule 72(c), M.R.C.P. See Blaney v. Rittall, 1973, Me., 312 A.2d 522.
Legality of the "agency shop" provision under the Municipal
Public Employees Labor Relations Law
The determinative issue which must be resolved in this case is:
Does the "agency shop" provision of the agreement violate the
Municipal Public Employees Labor Relations Law, 26 M.R.S.A., 961-972?
We answer in the affirmative.
Except as may be authorized by statute, public employees have no
right to bargain collectively with the employing agency. Without common
law collective bargaining rights, public employees enjoy only those rights
specifically granted by statute. City of Hayward v. United Public
Employees, Local 390, etc., 1976, 54 Cal.App.3d 761, 126 Cal.Rptr. 710.
See City of Biddeford v. Biddeford Teachers Ass'n, 1973, Me., 304 A.2d
387, 393.
The explicit purpose of the Municipal Public Employees Labor
Relations Law (26 M.R.S.A., 961), expressly declared to be the public
policy of the State of Maine, is
"to promote the improvement of the relationship between public
employers and their employees by providing a uniform basis for
recognizing the right of public 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."
From the Legislature's own delineation of purpose, we can readily see
as composite parts of the legislative intent, 1) the promotion of the
employer-employee relationship in the public sector, 2) through uniform
legislation, 3) permitting public employees to join labor organizations of
their own choosing, 4) for collective bargaining respecting terms and
conditions of employment. Nothing therein even suggests any legislative
concern for union security which an "agency shop" clause would provide.
On the other hand, the Legislature erected special safeguards around
public employees' right to the "free exercise" of the collective
bargaining privileges in the following sections of the Act.
In 26 M.R.S.A., 963, it is provided that
"[no] one shall directly or indirectly interfere with, intimidate,
restrain, coerce or discriminate against public employees or a group
of public employees in the free exercise of their rights, hereby
given, voluntarily to join, form and participate in the activities of
organizations of their own choosing for the purposes of representation
and collective bargaining, or in the free exercise of any other right
under this chapter."
The "free exercise of any other right under this chapter" surely would
include the right not to join the bargaining agency selected by the majority
of the bargaining unit, in the absence of any express provision to the
contrary.
The Legislature further protected public employees' "free exercise"
of the collective bargaining privileges by prohibiting conduct conflicting
with the employees' freedom of action. Section 964 of chapter 26 provides
in pertinent part:
"1. Public employer prohibitions. Public employers, their
representatives and their agents are prohibited from:
A. Interfering with, restraining or coercing employees in the
exercise of the rights guaranteed in section 963;
B. Encouraging or discouraging membership in any employee
organization by discrimination in regard to hire or tenure of
employment or any term or condition of employment;
* * * * * * * * * * * *
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"2. Public employee prohibitions. Public employees, public
employee organizations, their agents, members and bargaining agents
are prohibited from:
A. Interfering with, restraining or coercing employees in the
exercise of the rights guaranteed in section 963 or a public employer
in the selection of his representative for purposes of collective
bargaining or the adjustment of grievances; * * *."
In our interpretation of the Municipal Public Employees Labor
Relations Law we must consider two long established principles of
statutory construction: 1) The general rule is that statutes in
derogation of the common law must be strictly construed and not extended
by implication. Stanton v. Trustees of St. Joseph's College, supra, at
page 722; Depositors Trust Company of Augusta v. Johnson, 1966, Me., 222
A.2d 49; 2) public bodies or officers[fn]4 may exercise only that power
which is conferred upon them by law. The source of that authority must
be found in the enabling statute either expressly or by necessary inference
as an incidence essential to the full exercise of the powers specifically
granted. State v. Fin & Feather Club, 1974, Me., 316 A.2d 351, 355; Town
of Windham v. LaPointe, 1973, Me., 308 A.2d 286, 290.
The "agency shop" provision in the instant case is strictly a union
security clause designed to induce union membership on the part of
unwilling employees. While increased membership in labor organizations
and greater participation in their activities is a legitimate goal of
unions and the elimination of the free rider would be helpful in attaining
such objective, the forced payment of dues or their equivalent under an
"agency shop" clause is tantamount to coercion toward membership or, at
the very least, toward participation in a labor organization expressly
forbidden by statute.
Absent express authorization by the Legislature, an "agency shop"
provision in a collective bargaining agreement between public employees
and their public employer, which exacts from non-members as a condition
of continued employment in the bargaining unit in the guise of an
"equitable proportion of the cost of representation" by the bargaining
agent "fees equal to but not in excess of the equivalent of" dues to
belong to the employee organization, is unlawful as violative of the
statute protecting the right of public employees "voluntarily to join,
form and participate in the activities of organizations of their own
choosing." Such a provision contravenes the legislative policy contained
in 26 M.R.S.A., 964(1)(A) prohibiting coercion of employees in the
exercise of their right of free choice to join and participate in the
activities of labor organizations.[fn]5
Authorities in support of our position: Smigel v. Southgate
Community School District, 1972, 388 Mich. 531, 202 N.W.2d 305; New Jersey
Turnpike Employees' Union, Local 194 etc. v. New Jersey Turnpike Authority,
1973, 123 N.J.Super. 461, 303 A.2d 599; New Jersey Turnpike Employees'
Union, Local 194 v. New Jersey Turnpike Authority, 1971, 117 N.J.Super.
349, 284 A.2d 566, affirmed with modification, 1974, 64 N.J. 579, 319 A.2d
224; Farrigan v. Helsby, 1971, 68 Misc.2d 952, 327 N.Y.S.2d 909, aff'd
1973, 42 A.D.2d 265, 346 N.Y.S.2d 39; see also State Employees' Ass'n of
New Hampshire, Inc. v. Mills, 1975, 115 N.H. 473, 344 A.2d 6; Town of
North Kingstown v. North Kingstown Teachers Ass'n, 1972, 110 R.I. 698,
297 A.2d 342.
In Lewiston Firefighters Association, supra, we said at page 164:
"In the absence of controlling language in our own statute, we find the
federal experience persuasive."
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4. 26 M.R.S.A., 962(7) provides as follows:
"'Public employer' means any officer, board, commission, council,
committee or other persons or body acting on behalf of any municipality
or town or any subdivision thereof, or of any school, water, sewer or
other district."
5. We do not intimate what our decision would be if the so-called "agency
shop" clause in the instant case had required nonjoinder employees to pay
to the bargaining agent only their proportionate share of the costs of
securing the benefits conferred upon all members of the bargaining unit.
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In the federal legislation enacted in 1935 and 1947, Congress
specifically excepted union shop agreements (this includes agency shop
agreements since the agency shop is the practical equivalent of the union
shop) from an otherwise absolute right of employees to join, form, or
assist labor organizations of their own choosing in collective bargaining
or to refrain from any or all of such activities, and from conduct
constituting unfair labor practices. See National Labor Relations Act,
29 U.S.C. 157, 158(a)(1) and 158(a)(3).[fn]6
It is reasonable to believe that in 1969, when it enacted the Municipal
Public Employees Labor Relations Law, the Maine Legislature was cognizant
of these provisory exception clauses which legalized union security
arrangements in the federal sphere, notwithstanding that the federal act
contained analogous provisions as our sections 963 and 964 of chapter 26.
The omission of any such provisos in our legislation is a sure indicator,
absent any legislative history to the contrary, that our Legislators chose
not to permit the agency shop in public employment in Maine. City of
Hayward v. United Public Employees, Local 390, etc., 1976, 54 Cal.App.3d
761, 126 Cal.Rptr. 710.
We hold that the "agency shop" provision of the instant collective
bargaining agreement between the public employer District and the municipal
public employees thereof is repugnant to sections 963 and 964 of the
Municipal Public Employees Labor Relations Law and, therefore, null and
void.[fn]7 Thus, the Board's failure to discharge the recalcitrant
non-member teachers could not be the basis of a grievance within the scope
of the agreement.
Agency shop provision in violation of 20 M.R.S.A., 473(4)
The plaintiff Board further argues that the "agency shop" provision
is also unlawful, because it would permit discharges of public school
teachers for a reason beyond the scope of permissive legislation covering
the subject.
20 M.R.S.A., 473(4) empowers public school authorities to dismiss
any teacher, including those having tenure rights, "who proves unfit to
teach or whose services they deem unprofitable to the school."[fn]8
In Superintending School Committee, etc. v. Winslow Education
Association, 1976, Me., 363 A.2d 229, 234, we said in construing the
reference statute:
"This language demonstrates that, at least as regards dismissal,
the legislature vested sole authority in the school committee, subject
only to judicial review."
Such interpretation was in accord with our strict construction rule
as applied to
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6. 29 U.S.C. 157. Right of employees as to organization, collective
bargaining, etc.
"Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any or all
of such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 158(a)(3) of this
title."
29 U.S.C. 158 provides in pertinent part: "(a) It shall be an unfair
labor practice for an employer --
(1) to interfere with, restrain, or coerce employees in the exercise
of therights guaranteed in section 157 of this title;
(3) * * * Provided, That nothing in this subchapter, or in any other
statute of the United States, shall preclude an employer from making an
agreement with a labor organization . . . to require as a condition of
employment membership therein . . ."
7. We intimate no opinion respecting the legality of an "agency shop"
provision when made part of a collective bargaining agreement in the
private sector.
8. 20 M.R.S.A., 473(4) reads as follows:
"After investigation, due notice of hearing, and hearing thereon, they
shall dismiss any teacher, although having the requisite certificate, who
proves unfit to teach or whose services they deem unprofitable to the
school; and give to said teacher a certificate of dismissal and of the
reasons therefor, a copy of which they shall retain. Such dismissal shall
not deprive the teacher of compensation for previous services."
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educational legislation. See Hopkins v. Bucksport, 1920, 119 Me. 437,
440, 111 A. 734; Searsmont v. Farwell, 1825, 3 Me. 450.
We concluded in Superintending School Committee of the Town of
Winslow, supra, that, without consideration of P.L. 1976, c. 723,[fn]9 the
plaintiff school committee could not be forced by interest arbitration to
accept the "just cause" and arbitration provisions of a proposed collective
bargaining agreement.
The question of the validity and enforceability of the "agency shop"
provision of the instant collective bargaining agreement would ordinarily
be moot by reason of the expiration of the school years to which it
applied, but it is not in this case inasmuch as the parties have
supplemented the record with their mutual stipulation that "the identical
legal questions apply to the presently operative agreement." See Town of
North Kingstown v. North Kingstown Teachers Ass'n, 1972, 110 R.I. 698, 297
A.2d 342 at page 343, n.1.
In view of the continued presently existing controversy between the
parties respecting the lawfulness of the "agency shop" provision of the
collective bargaining agreement within the context of the impact of the
1976 amendment to the teacher-discharge statute, and, considering that, on
occasion, courts will entertain questions of law in a case even after the
same have become moot where the controversial legal points are of great
public interest, will authoritatively guide future action of public
officers and are likely to recur if left unresolved, we decide the issue.
See King Resources Company v. Environmental Improvement Commission, 1970,
Me., 270 A.2d 863, at 870; People ex rel. Wallace v. Labrenz, 1952, 411
Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132.
We hold that the 1976 amendment which provides that just cause for
dismissal of teachers or nonrenewal of teacher contracts may be a
negotiable item in accordance with the procedure set forth in Title 26,
c. 9-A (the Municipal Public Employees Labor Relations Law), for teachers
who have served beyond the probationary period, while it may affect the
prior interpretation of exclusivity given the teacher-dismissal statute,
falls far short of legitimizing the instant "agency shop" provision for
purposes of collective bargaining agreements. Absent a specific
legislative declaration to the contrary, we must say that the "agency shop"
clause in the instant case is repugnant to sections 963 and 964 of the
Municipal Public Employees Labor Relations Law.[fn]10
The entry will be
Case remanded to the Superior Court for further proceedings in
accordance with this opinion.
WEATHERBEE, J., sat at argument and participated in consultation, but died
prior to the adoption of the opinion.
POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ., and DUFRESNE,
A.R.J., concurring.
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9. The 1976 amendment of the school statute, 20 M.R.S.A., 161(5), states
as follows:
"Just cause for dismissal or nonrenewal may be a negotiable item in
accordance with the procedure set forth in Title 26, c. 9-A, for teachers
who have served beyond the probationary period."
10. What the effect of the 1976 amendment will be on interest or grievance
arbitration clauses respecting teacher discipline for causes other than
nonpayment of monetary amounts equivalent to union dues pursuant to an
"agency shop" provision, we do not decide at this time.
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