*1 A.2d 124. et al. Richard vs. Arthur B. Matteson A.
OCTOBER 1975. Paolino, Doris, Roberts, J., Joslin, Kelleher and JJ. C. Present: *2 Superior Court appeal from is an J. This Kelleher, judgment vacating an arbitration award which had been under the granted terms a collective bargaining agree- ment between the Warwick Teachers Union Local AFT, (Union) AFL-CIO and the Warwick School Com- (School mittee Committee).
The Union is the exclusive bargaining agent all employed teachers School Committee. Each year, of negotiations a result between the Union and the School Committee a collective bargaining agreement created which governs the conduct of the parties and those represent whom they coming for the year. contro- versy concerns, this case provisions part, *3 contract which inwas force from February 1, 1972 to January 31, 1973.
On June School posted Committee a notice of a for vacancy position Department Business Head at Warwick Veterans Memorial High School. The was vacancy “promotional position” within the terms of the contract, and the notice posted was in compliance with its terms. Four teachers applied for the position, plaintiff including and one of the named defendants, Arthur B. Matteson. The candidates were interviewed, and credentials reviewed by a committee of school administrators composed of the Assistant Superintendent for Secondary Education, Principal of Veterans Memo- High rial School, and the Assistant Superintendent Personnel. This committee unanimously recommended appointment of Belanger to the vacant position. Its recommendation was in turn reviewed by supérin- tendent, who concurred its decision. Finally, the matter put was before the School Committee who voted to ap- point Belanger to the post.
Upon learning that he had been unsuccessful in his bid for the promotion, Matteson met with Mr. Venditto, Superintendent Assistant in Charge of Personnel to dis- V, under art. his right This was his dissatisfaction. cuss satisfac- He did not obtain 4(d) agreement. sec. his wrote to thereafter discussion, from this tion to invoke the Union representative requested union in the provided procedures grievance his behalf the on Matteson’s The core of agreement. bargaining collective Commit- School with his belief rested grievance appointing Belanger. agreement by had violated the tee “ shall that, V, 4(b) provides [candidates Article sec. posi- for the qualifications on basis
recommended seniority equal, considered tion. Where are qualifications It is un- prevail.” shall in the Warwick System School more than seniority Belanger. Matteson has disputed that Matteson and the Union controversy, Throughout equally least as have that since Matteson insisted appointment position Belanger, for the qualified person. given should have been to the senior August appointed The School Committee filed a written 7, 1972, On the Union August 1972. Super- with Assistant of Matteson’s notice Super- The Assistant Charge of Personnel. intendent representative and a union intendent met with Matteson September. 11, 1972, he sent Matte- early On October *4 letter him his decision was retain notifying son a head. The Union post department in the in the procedures agree- followed set forth grievance Super- It cause before the placed ment. first Matteson’s then went Committee. intendent and before School at Matteson, having had no success the administrative requested complaint the Union to take his level, arbi- met in executive committee and voted tration. The Union to initiate the arbitration. April 6, held on three hearing
A before arbi- Committee, by one trators, by one selected the School jointly by sides Union, and the third chosen both from prepared lists American Arbitration Association. The submitted to the arbitrators issue both' 'sides was: “Has Committee violated Article V, Section (b) of the collective bargaining agreement by ap- not pointing Department Mr. Arthur Matteson as Business Head at Veterans Memorial If High so, School? what the remedy shall be?”
The arbitration lasted from 10 hearing approxi- a.m. to 6:30 A mately p.m. number of presented witnesses were by the Union and the Committee. School Both Belanger and Matteson testified as to their qualifications. All wit- subject were nesses to cross-examination. Briefs sup- port of the respective positions were submitted -and on August 16, 1973 the arbitrators rendered a decision. They ruled that Matteson was entitled to appointment head of the Department. Business
After a full year on the job, Belanger found himself deprived of promotion his and back in the classroom. He wrote to principal his and the Union and requested that a grievance be filed on his behalf as he wished to challenge this demotion. president Union responded that, although
Union would be to file happy grievance for him' alleging the School Committee had not adequately repre- protected sented or his interest in his former position as department head, would not ask for his reinstatement' position because: “We cannot, [the Union] this time, however, ask for a remedy which in effect would reverse a decision which was a result of filed by the Union. This would be illogical and inconsistent with our role as bargaining agent and our obligation under the contract. We have, all, after agreed to make binding arbitration the final in our step grievance procedure.”
Thereafter, Belanger instituted this litigation in the *5 Superior Court. He named as defendants Matteson, Union, the arbitrators, and the Committee and School asked the court to overturn the arbitrators’ decision and reinstate him. His suit (1) was based on grounds: the arbitrators jurisdiction, (2) exceeded their represent Union breached its duty fairly his in- when terests it pursue decided to Matteson’s grievance. justice
The trial found that there existed a duty of fair representation which the breached, Union had and that in award was excess power of the arbitrators’ and thus void. He vacated the award, and reinstated Belanger. Matteson and the appealed. Union We will first consider the duty representation of fair facet of appeal then go to discuss that, finding arbitrators had exceeded their power by duties and usurping responsibil- ities Legislature which the has committed to the school committees of the municipalities various and nobody else.
The question of the duty owed by a union to its mem- bers is one of impression first in this court. It has, how- ever, been extensively litigated in other jurisdictions, most in notably the federal courts, cases arising under the National Labor Relations Act, 29 seq. §151 U.S.C.A. et (1973), the Labor Management Act, Relations 1947, U.S.'C.A. §141 et seq. (1973), and the Act, Labor Railway 45 U.S.C.A. §151 et seq. (1972).
The first of what has become a
line of
long
cases was
Steele v.
R.R.,
Louisville & Nashville
338 Huffman, Co. Ford Motor 345 the NLRB.
governed 1048, 97 L.Ed. 681, 686, S.Ct. U. S. employees of individual right taking away (1953). By into organize or to individually interests their to further Con- employer, their to deal with units numerous small control over the work- power and a union gress given has such corollary A of members. of each of its lives ing members. for benefit of its to act power duty is the regu of labor a structure Legislature has created Our respects the parallels many significant lations which (1968 L. Re here is G. scheme. Our focus federal entitled Arbitration School enactment) seq. et §28-9.3-1 it to be the 28-9.3-1 declares Disputes. Teacher Section teachers public to school grant of this state public policy to represented, bargain to be and organize, to right relevant basis with school committees on a collective of pro conditions and other terms working “hours, salary, mandates employment.” 28-9.3-3 fessional Section recognize organization committee labor school and exclusive” by the teachers to be “sole chosen representing bargaining agent. Thus, organization a labor authority state has the same broad teachers of this enforcement of the col administration, and negotiation, union regulated as does a bargaining agreement lective with agreement federal law. We find ourselves and, of the Steele and its persuasive logic opinion progeny, Act, in our implicit therefore a statu hereby recognize, part bargaining agent on the of an exclusive tory duty fairly adequately represent and interests all contracts, only not those negotiates those whom part all those who are of the bar members, who are but unit.1 gaining Reenactment) (1968 provides Laws 1956 §28-9.3-7 1General teachers join organization even if
shall be free to decline to it is certified as union, representative the exclusive of all teachers within unit. The necessarily are com- union unit bargaining oft- diverse views and posed individuals with many whole pur- demands. The conflicting employment times however, union is, pose behind creation unity “In present solid, employer. unified front *7 and it strength,” organizing slogan, there is went the old the union dealing employer, was the truth. with gains negotiating power speaks its from the fact it employees. with one voice for all the part
That we find a on the of the union does duty not, however, solve the us. must define controversy before We parameters duty, and then it to the apply facts Superior as found Court.
We recognize believe at start that we must range wide of reasonableness must be allowed a “[a] statutory representative bargaining serving the unit * * represents Huffman, Ford Motor supra *.” Co. v.
338, 73
686,
S.Ct. at
The union must be an advocate for
membership
its
where its
disagree,
members
the union should not be
forced into a
position
neutral
by a court-enforced obliga-
tion not to take
Moore,
a
In Humphrey
stand.
375 U. S.
however,
representative
is still
join
the sole
for those who choose not to
organization,
duty
and owes them the same
dues-paying
as it does its
R.R.,
members. Steele v.
192,
Louisville &
226,
Nashville
323 U. S.
65 S.Ct.
(1944).
approved
provision
173
L.Ed.
have
bargain
We
a
in collective
ing agreements requiring teachers who are not members
union to
pay
proportionate
their
share of
upon
the costs of the benefits conferred
bargaining
Kingstown
all members of the
Town
unit.
North
v. Teachers
Ass’n,
110 R. I.
A.2d
multi-employer
(1964),
union found' their businesses. merging were companies who trucking an interest outfit had from the dissolved employees The absorbing company. within retaining seniority their obviously did not favor such company’s employees That employers and by both signed The contract happening. question put The contract was the union ambiguous. The union committee. joint labor-management before a of the other employees, some took the side of the absorbed their union and “bumped” they sued employees were upon the Court, expanding employer. Huffman holding, said: wholly as a union free to sift out friv-
“Just
must be
only
which
grievances
clog
olous
would
position
so it
be free to take a
process,
must
*8
it
neutralized
disputes.
not so frivolous
Nor should
be
of em-
between two sets
chiefly
when the issue is
represented by
employees
ployees. Conflict between
or gag
.To remove
recurring
the
union is a
fact.
same
the col-
surely
weaken
the union
these cases would
Id. at
processes.”
bargaining
lective
L.Ed.2d at 382.
Whether not should be bound majority employ- control conditions ment is Legislature not a matter for us to decide. The has we unequivocally policy declared that be cannot say However, otherwise. concurrent with the power union’s to bind the minority duty flows which we define today. negotiation process, we hold that a union must
make an honest effort to serve the interest of all of its members, without hostility power and its any, must in complete exercised good faith and honesty with purpose. Ford Huffman, Motor Co. supra.
Where the union and
employer
provided by
have
contract for the internal
disputes by
settlement of
means
of grievance and arbitration procedures, and where these
procedures
settlement
can be initiated and continued
solely by the union, the union
subject
is likewise
duty
to a
of fair representation in its handling
employee
griev
ances. As in contract negotiations,
the union as it deals
with grievances must often take a
which
position
is detri
mental
to some employees as it
helpful
to others. The
“* * *
duty upon the Union here is to
in good faith and
in a nonarbitrary manner, make decisions as to the merits
of particular grievances,” Vaca v. Sipes, 171, 194,
U. S.
903, 919,
87 S.Ct.
Applying these standards of conduct to the facts of this case, we are faced with a clear breach Union of the duty it owed to Belanger. The testimony undisputed, was and the justice trial found that throughout the grievance procedure, the Union and representatives acted with- out ever contacting or Belanger considering qualifica- his Mat- itself with aligned the Union position; for the
tions the arbitra- removal; and at Belanger’s in seeking teson attempted dem- representatives the union hearing tion en- Belanger, than Matteson, rather that onstrate position. to the titled knowledge it had no trial that
The admitted at Union position contested until for the Belanger’s qualifications it never hearing, and at the arbitration he testified impending challenge. discuss the Belanger contacted take sides. must, and often may, We have said a union it act, when it clear that it must But we wish to make Here manner. nonperfunctory does, nonarbitrary, in a on the fortuitous circum- totally chose sides Union hire. It is Committee did not of who the School stances Matteson, being the simplistic sense, true, very unit with “a grievance,” of the bargaining member only support. in need of Union individual only is therefore this view. It require accept blinders to But one would that Matteson’s apparent have been to the Union should Com- theoretically against School grievance, although action the mittee, reality against Belanger. Any inwas Belanger’s Matteson’s behalf threatened Union took on job. obligation support had as much of an Union Matteson until such time support as it had to candidates, of both qualifications
as it had examined the seniority clause would control believed process. the selection clearly
This was a situation that was akin to situa- Huffman, Humphrey, tions found in and Vaca where a conflicting loyalties union faced with must make a choice support. require- as to which member it will To enforce a neutrality ment of on the union cases such as this not, opinion, purposes would in our further power statute which was designed strengthen *10 al- employment in situation controlling teachers all lowing speak through single, strong them a but only power voice. could weaken the of em- Neutrality in ployees any par- to deal with their Even if employer. grievance procedure ticular would not be harm- neutrality ful,2 the cumulative effect of such a taken over a stance period of time would undermine position of the union employee advocate its with the dealings employer.
Also, by remaining neutral, the union would lose the ability scope control of the arguments focus made on behalf of employees. Professor Cox has argued that the settlement of an employee individual griev- ance involves more than the individual because precedent is established which will control the course of future em- ployer-employee relations.3 This distinguished educator points also out that any parties time the do battle over their contract, they are also engaging process a of nego- tiation over its terms.
The Union must choose its
side
a nonarbitrary
based
manner,
on its good-faith judgment as to the merits
claims.
conflicting
present
case the Union
never offered
opportunity
present
his case
to them.
It never recognized its duty to independently
determine whether Matteson or Belanger was entitled to
job.
It seems to us that
the only
procedure
fair
in this
type of a conflict is for the Union, at the earliest stages
Forwarding
(3d
Bieski
Co.,
v. Eastern Automobile
2Cf.
of the grievance
heard,
to be
opportunity
an
contestants
give
to
both
sides,
are
the
We
to
Union.
qualifications
and to submit
replete with strict
hearing,
a full-blown
mandating
not
the
If
proceedings.
procedure
adversary
and
rules of
manner,
this would be
informal
investigates
Union
em-
affords the two
procedure
as its
long
sufficient so
relevant
information
all the
ployees
ability
place
Soc’y,
Symphony
Houston
See Bures v.
before the Union.
Union, Local 781
Waiters
(5th
1974);
For a union to make a decision
factual situaton is
underlying
without
investigating
Ar
De
duty
representation.
a clear breach of the
of fair
Trabajadores Packinghouse, AFL-
royo v. Sindicato De
CIO,
1970). In an examination of
(1st
In examining
presented
us,
the record
we find no
evidence of
However,
bad faith4
the Union.
the Union’s
rejected
requirement
4A number of courts have
that in order to find
duty
representation,
breach of the
of fair
the union’s conduct must be
only arbitrary
Arroyo
not
but also in bad faith. De
v. Sindicato De
Trabajadores
(1st
Packinghouse, AFL-CIO,
1970);
425 F.2d
Cir.
Cargoes
U., AFL-CIO,
Super
Beriault v. Local
& Checkers
L. & W.
I.
without
Matteson’s
on with
press
decision to
qualifications
the relative
effort to assess
any
making
Thus,
defective.
patently
candidates was
respective
the in-
represent
fairly
duty
breached its
the Union
Belanger.
one of
terests of
its members —
with
agreement
conclusion
we reach this
Although
he
remedy
with the
agree
we cannot
justice,
trial
arbitrators’
award.
overturning
fashioned —the
*12
bargaining agreement
collective
parties
to a
Where
to the enforcement and effect
disputes
to submit
agree
their,
procedures, cul
private grievance
contract
of
arbitration,
such arbitra
binding
final and
minating
very
for a few
limited situa
are, except
decisions
tors’.
See United Steelwork
by
unreviewable
the courts.
tions,
Mfg. Co.,
564,
America v. American
363
80
ers
U. S.
of
1343,
(1960);
4
1403
United Steelworkers
L.Ed.2d
S.Ct.
Co.,
Navigation
Warrior
&
363 U. S.
America
Gulf
1347,
(1960);
346 Committee, 444, 448, 108 R. I. 276 Local 958 v. School A.2d 762, are here with a situation which arises dealing
We phase of postcontract arbitration. justice in the award because vacating The trial representation placed great emphasis fair breach on the Corp., of Clark v. Hein-Werner International Ass’n case Machinists, Local Wis.2d N.W.2d 132 (1959), promulgated proposition where the court “[ejmployees fairly represented not the union should put position never be in the of having solely depend upon employer championing under rights contract.” Id. at collective-bargaining N.W.2d 138. If pronouncement the court intended this as an absolute, categorical rule, inflexible we cannot subscribe principle. There exceptions most, are if all, not and, rules as will seen, a union’s failure in the area of representation fair does not automatically nullify an arbi tration award.
Although owing no fiduciary duty to Belanger, School Committee nonetheless forcefully argued posi- his tion position because his and its were coextensive. We do not have a situation like Bieski v. Eastern Automobile Co., Forwarding (3d F.2d 32 1968), Cir. where the employees challenging the award did not have their posi- tion effectively represented. Here the employer Bel- and anger adopted the same stance before the arbitrators.
The employer has not caused Belanger any harm. The only to wrong Belanger was by caused his Union’s breach of its obligation to him. He has a right to use the judicial process remedy that but wrong, the remedy must be coextensive with the damage occasioned by the breach. And that damage does not necessarily encompass the loss (cid:127) job. his The Union could have, consistent with its
duty, still found Matteson to be the proper choice for High Warwick Veterans Head at Department Business and a decision fair reached such If it had School. still have hearing would the arbitration means, proper Belanger would against award conducted, and the been here wrong Thus, the Union’s granted. still have been de- of the adverse arbitration the direct cause was not the Union’s action not a situation where cision. This is predicament. cause of We Belanger’s was the “but-for” remedy for a proper now have to resolve the situa- do not represent one of its union, purporting tion a where employer, ineffectively in a with an so dispute members panel the member before an arbitration a represents employer’s position contrary to the case where consequently adversely affects him. member’s and ap there has been a fair before hearing duly Where who have whatever means heard pointed arbitrators both and have before them all controversy sides upon decision, information which to the relevant base the award.5 we will not overturn Moore, Humphrey 375 U. S. 84 S.Ct. (1964),
L.Ed.2d 370 the Court refused to overturn the joint decision of a committee decision, according whose contract, to the binding, be final and doing so, rejected employees’ the Court contention that even if the union had acted in good faith and was en- position had, titled to take the the employees were deprived of a fair due to hearing inadequate representa- position. tion of their The Court noted that the em- ployees had notice of the hearing, they never re- quested continuance, there was no evidence they could have added anything the hearing by *14 good analysis finding 5For of the ramifications a breach of the duty representation employee’s dispute of fair where the has been arbi Duty Representation: trated, Clark, Fair A The see Theoretical Struc ture, seq. L. 1167 51 Tex. Rev. et theory.6 350-51, 372; Id. at of facts or S.Ct. way “ therefore, speculation
L.Ed.2d 382. It was 'idle as the result would have 'been different had the sume that ” presented.’ Id. differently matter been in this case mandate a similar conclusion. facts thoroughly grievance was conversant with the Belanger procedures. prior Sometime his confrontation with he had filed a with the Matteson, grievance against Union appointment position to the of Head of the Business Department another high Belanger at Warwick school. subsequently grievance. Furthermore, withdrew the Bel- had anger hearing been notified of the on Matteson’s days before it occurred. The School Com- representative mittee’s at before the hearing arbitra- Venditto, Superintendent tors was Mr. the Assistant Charge Personnel, gentleman who is neophyte no type when it of proceeding. comes It is uncontra- prior dicted that to the he hearing had summoned Bel- office where he anger his and Belanger reviewed the testimony would present to show his en- titlement to fill the At vacancy. hearing, Belanger three other witnesses testified qualifications as to his position. for the He present during presen- the entire tation of Superior evidence and in the Court he conceded there was further nothing- which he sought to offer the hearing which was relevant to his qualifications. Belanger also agreed that at no time did he ever ask that the hearing postponed or continued so that he could avail himself of the of an attorney. services Matteson appeared and testified at the hearing. Two other witnesses appeared on his behalf. The Union’s executive secretary presented Matteson’s grievance. The secretary is not an attorney. It is obvious from the record before- us .that with, express opinion agree 6We no as to whether we would the Court factors, that but for the listed there would have been a violation.
349 de- thorough presented had been arbitrators of each background listing qualifications tailed impropriety hearing no in perceive candidate. We justify would the arbitrators which by conducted representa- of the fair of their award on the basis vacating tion doctrine. in which emphasize that the manner
We would also v. markedly arose differs from Vaca litigation have found majority and the of cases which Sipes, supra, See, e.g., representation. of fair duty a breach of (9th Pam Pam F.2d 179 Cir. Margetta Corp., v. 501 Freight Inc., Spector Systems, Steinman v. Local 1974); (2d 1971). 441 599 Cir. all of these cases F.2d essentially employee’s against suit litigation was employer bargaining agree- breach the collective question ment. The threshold resolved each of employee those cases was whether had exhausted his permit remedies under the contract him to sue in court. if employee, he hadn’t exhausted contract reme- his dies, or, doing final, decision, so had obtained a binding impediment had to overcome this private his suit. Vaca recognized where the contract remedies are controlled by the union and not it would be unfair employee, to deprive employee remedy against a wrongful employer where his union had failed to properly and ade- quately make use of the procedures. contract Vaca Sipes, 386 171, 185, U. S. 903, 914, S.Ct. L.Ed.2d To allow a union’s intentional or arbi- trary failure to employee’s defend the rights to bar his one chance to pursue them on his own was termed the Court “patently unfair.” The underlying wrongful conduct the employer should not be immune from correction due to the wrongful conduct of the union.
But those situations are markedly different from the present one. Here we can of no conceive action which Indeed, employer. his against maintain might to have the School Com- attempted Belanger had
initially, *16 joint plaintiff. his side as a on litigation this mittee enter had Union; the arbitrators the only breach thus, unlike argued and position aggressively Belanger’s breach did not foreclose a the Union situation, a Vaca the em- remedy; and of the contractual fair utilization subjected should not be wrong, had done no who ployer, of who should be the head question of the relitigation to a Department High at Warwick Veterans Business of the Vaca, relied on an under- expressly In the Court School. employer the justify forcing its employer breach lying the beyond contractually agreed its actions to defend 17 In 196, 920, Id. 87 at L.Ed.2d at 861. forums. S.Ct. suggest also felt constrained to that Humphrey, Court union alleged breach, knew of the and employer if the it overturn the might in fact a arbitra- breach, there was tors’ decision. subject unfair Com-
Here, it would be School If promotional dispute. of the relitigation mittee to a otherwise, employer were to hold no would be safe we time and in arbitration unless it first expending money had not defaulted in its assured itself Union employees represented. to the This inde- obligation pendent investigation procedures into internal union making decision would be an affront to the and a union, employer. burden on the
It from what we justice follows have said that the trial erred when he vacated arbitrators’ award because of duty represent Union’s breach fairly membership interests of all its including Belanger. that of justice’s We come now to the trial vacating arbitra- tors’ award had exceeded their ground they powers.
Within recent years we observed that the General As-
351 the teachers to organize it authorized sembly, when in- committees, respective with the collectively bargain well-recog- of the many on the teachers tended to confer private in the those who work enjoyed by rights nized bind- to have including right economy of the sectors Union, Teachers Providence of grievances. arbitration ing Committee, 448, R. I. Local 958 v. School ruled position, we taking A.2d Arbitration Teachers’ provisions School with other rele- conjunction be considered in Act should (1968 L. Reenact- labor G. legislation, wit, vant up a frame- ment) legislative ch. 9 of tit. which sets controversies, and con- work for the arbitration of labor *17 calling of a clause validity we the sequently recognized particular of The grievances. arbitration binding in the Providence Teachers Union case related payment pay for the of severance provision calling to a period. the contract during to those teachers who retired pay certainly said about severance can be said What was concerning promotions. about grievances Superior jurisdiction 28-9-18 limits the Section an award on of one of these proof any Court vacate specific (1) three in the of grounds: procuring “fraud” the the award, (2) powers arbitrators have exceeded “mutual, or imperfectly have so executed them that no (3) final and definite award” or no valid sub- made, justice mission or contract to arbitrate. The trial in ruling that powers the arbitrators had exceeded their relied first (1969 L. Reenactment) G. which states §16-2-18 that the care, “selection of teachers” as well as the “entire control, management public of all the school interests * * * shall be vested in the school committee” and second- ly on his finding gone beyond that the arbitrators had the powers because of a purported shifting the burden of of proof by the board at the hearing. that and then states court §16-2-18 cites the
Belanger Clark, (1962), 176 A.2d 93 R. I. in Dawson v. delegate could not the committee observed that school He also Legislature. on it conferred jurisdiction depart filling to the of business consistently refers acknowledge presence We vacancy “hiring.”. as a ment Dawson, but holding statute holding. its entire give fails to Dawson case To states com precise, in absence delegated could not be jurisdiction mittee’s Id. at 176 A.2d at legislative authority to do so. 735. authority, the absence of such who However, assuming department is not post being to the head ever succeeded hired, promoted. We think it elemental being he is provisions bargaining the collective promotional envision the advancement of one who has al agreement hired and a member of the Warwick been school ready vacancy occurred. before such circum system you have a before have stances, you hiring pro must with disagree Belanger’s motion. we most con While position tentions, agree we with his the selection process original §16-2-18 alluded to refers hiring. statutory grant relating not, teacher selection does encompass within opinion, language, pro in our *18 performance motion of one whose warrants a “well done” system. and an advancement within the When in we look at language describing §16-2-18’s 1975 the committee’s control of the management and school in system, keep passed we must mind that this statute was century (1903) day turn of the in shortly after a prone disciples were more to be of when teachers John Dewey supporters Gompers. of reading Samuel than §16-2-18, forget years one must not that some 70 later in Assembly enacting General School Teachers’ Arbitration ordered the school committees of this Act bargaining sit down at the table with the go state and then negotiate of their teachers’ union and representatives as work- hours, salary, faith” on such matters “good and other conditions conditions, “all terms and of ing We no doubt employment.” Legislature have classroom should have the same intended that teachers upward as opportunity mobility who, of other workers promotional provisions of con- because their labor job hope remain on the tract, day some because of superior performance they their will em- up move ployment ladder and another and assume a better-paying An position. undue fixation with the of language §16-2-18 failure broaden viewpoint one’s as to so see what did, Assembly midpoint General once the of this century reached, had been could result in the emascula- tion Teachers’ legisla- School Arbitration Act. The good-faith tive mandate for un- bargaining is broad and qualified and we will not limit thrust the absence explicit provision an statutory which bars specifically a school committee from making agreement as particular term or condition of employment. Board of Teachers, Educ. v. Associated 129-30, 30 N.Y.2d N.E.2d N.Y.S.2d 17, When §16- 2-18 and the School Teachers’ Arbitration Act are placed respective time frames, is obvious that tightfisted grip which a school committee in 1903 might have held over the operations day-to-day of its schools has been relaxed somewhat when, at its January 1966 session, Legislature directed such committees to act responsible public employers; otherwise the goal of affording the advantage collective pro- bargaining particular cedures to this group public employees could never be realized. It follows that the Warwick School Committee was well power within its when it agreed that its promotions of teachers could be subject review *19 mechan- grievance use of the through the arbitrators
the could arbitrators The the agreement. forth in ism set equal-ability of the find violation properly a therefore forthwith appointed that Matteson proviso and direct high school. at the post to im finding justice’s the trial considering In will set proof, briefly of we the burden shifting of proper resolving by taken arbitrators approach forth the prospective informed posted notice controversy. department of to be head the business seeking candidates qualifications having “personal in addition that ap for necessary to be the administration by determined a knowl possess “thorough must pointment,” they also department’s area subjects of the within edge” had “class knowledge gained by been responsibility which to lead teachers and stu experience,” “ability an room be a “high degree to a where there would point dents” an morale,” finally, cooperative good action develop and evaluate the “exceptional ability plan, * * In terms of commenting curriculum that the Union and the contract arbitrators observed in the Committee, by language their conduct and School , promotions had permitting grieving agreement7 judgment” by “reasonable the school contemplated a qualifications of the candidates’ and a “meaning officials any ful review” the arbitrators contested advance They ment. then stated that it was initially Matteson’s requirements obligation show he satisfied the set in the he forth notice and that was senior to 7 1(a) III, complaint Article sec. of the contract defines as a “(1) employee unfairly inequitably, he been has treated or (2) violation, misinterpretation misapplication has there been or contract, health, safety liability provisions (3) of this his or 2(c) binding jeopardized.” providing Ill, Art. arbitration. sec. empowers specifically “appropriate compensatory the arbitrators to make awards.” *20 Commit- accomplished, once this was the School led forth the factors it to believe
tee could which bring superior. junior arbitrators, man was The after the the reference instances where construing agreement’s qualified are under consideration as equally candidates meaning two,” there was “little choose between the we ruled that the reasonableness standard to which have required there already supe- alluded “material in riority” exhibited the qualifications successful applicant. The in that, showing arbitrators also remarked degree superiority, this the School Committee could solely subjective not on its rely opinion as to Belanger’s point attributes but had to to a evidentiary factual basis which would support such a conclusion. Finally, arbi- trators went on to evaluate evidence the light of the guidelines they and, had established as is obvious at point, they found both equally qualified individuals and Matteson, candidate, senior entitled to the position. justice, trial his concern for the procedural pat
tern laid out arbitrators and the burdens shifting of proof persuasion they adopted, has apparently overlooked the fact that an arbitration award is de cision of an extrajudicial tribunal parties which the them selves have created and by judgment whose they have mutually agreed to abide. While we have some doubt as to whether the arbitrators their thoughtful analysis of the Warwick contract and how they would resolve the problem presented to them did in fact shift the burden of proof, the fact that panel arbitration may fail to follow legal the strict procedure rules of and evidence no ground for striking down their award. Chillum-Adelphi Volunteer Fire Dep’t, Inc. v. Button Goode, Inc., & Md. 219 A.2d A judicial re versal arbitration award based solely on the review- with, interpreta the arbitrators’ disagreement
ing court’s only nullify bargain- not would tion of the contract public strong threaten parties but also by made disputes private settlement favors policy that Goodyear bargaining agreements. from collective arising Rubber, 200, United *21 Local Co. v. Union Rubber Tire & America, 42 Plastic Ohio Cork, Linoleum & Workers of Except complete for (1975). N.E.2d 703 516, 330 St.2d applicable free to fashion are irrationality, arbitrators them dispute of a before the facts and determine rules subject judicial to revision. being their award without Fundaro, 633, 382, 385, 278 29 N.Y.2d N.E.2d Lentine v. earlier, noted the (1972). 422 As 418, N.Y.S.2d 635, 328 legislation authorizing the Assembly enacting in General provisions in disputes involving contained arbitration Superior restricted the bargaining agreement a collective an arbitration award to three power to vacate Court’s grounds. one of the A mistake of law is not Such grounds. clear evidence that an award an omission is cannot Realty Corp. Loretta ground. a challenged on such Bonding Co., 226, Ins. R. I. 114 & Massachusetts no faulting We see reason the A.2d to they for the manner which decided eval arbitrators them. There been no presented the evidence has uate power they determined excessive use of the arbitrators’ promoted. whether or Matteson should have been appeal sustained, judgment ap- The defendant’s is the from pealed vacated, and case is remanded to the the Superior Court.
Mr. Paolino, concurring part, dissenting Justice I find- part. agree part opinion of the court’s with ing fairly represent the Union duty breached the Belanger, interests of Mr. but for the reasons that I respectfully follow dissent from the remainder opinion. court’s (1969 L. 1956 rejects argument
The that G. majority irrevocably commits to the school Reenactment) §16-2-181 power to assume committees of several towns of all the care, public “entire control, management school including school teachers. interests” selection recent reach this result that more They ground subject matter, with related G. L. dealing wit, statute (1968 Reenactment) ch. 9.3 of tit. the School precedence Act, Teachers’ Arbitration takes over §16-2-18. older from precedence, they say, This derives the relative statutes, of the two con- ages changes .the ditions that passage time inevitably works and general caveat that an “undue fixation” with §16-2-18 would undermine and ultimately eventuate the demise of binding arbitration for teachers. court therefore is interpret content power the teachers’ to enter into binding arbitration regarding “terms conditions *22 of professional employment,” (§28-9.3-2) so as broadly include the power to questions submit to arbitrators of school teacher promotion. selection and is jurisdiction
It indeed settled in law this that a statu- provision tory which last in order of pre- time will be over ferred an earlier provision if the provisions two are irreconcilably repugnant. Pearce, Surber v. 97 I. 40, R. 44, 195 A.2d 543 The majority has offered proof no of such a degree repugnance of between the two statutes in question absence, here and in the of clear mandate from either the Legislature or this court regard- (1969 Reenactment) 1General 1956 Laws §16-2-18 reads as follows: superintendent of "Selection teachers and control of schools —General
—Expenses.—The selection superintendent, of teachers and election of employment in such towns as do not superintendent, unite for the aof care, control, management and entire and public of all the school towns, of interests the several shall be vested in the school committee towns, they the several shall pay- also draw of all orders for the expenses.” of ment term or con- as a teacher selection status of the exact ing to create I it is unwise believe employment, of dition are lost whole statutes dimension that of such conflict this, such reading In statutes in the backwash. principle mindful established of remain must court Comm., Union, Local 958 v. School Teachers Providence which a case coinci- (1971), 276 A.2d R. I. to arbitrate coextensive right dentally made teachers’ private sector. by employees enjoyed the rights with stated: case, this court which are not inconsistent with one an- "Statutes subject relate the same matter other and which be considered pari together materia and should are in be other and they so will harmonize with each object even scope, general with their consistent another and no reference one they contain though Id. A.2d at passed were different times.” at 765. analysis not to an of the principle apply this should
Why
subject
appeal
is the
award that
arbitrators’
with
statute, dealing
older
is,
That
light
§16-2-18?
portions of
matter as relevant
subject
the same general
Act,
not, on its
Teachers’ Arbitration
does
the School
therefore both statutes should
face, conflict therewith and
A
read in
fashion.
search
cases and
harmonizing
statutory
any
law has failed
reveal
indication that
(or department heads) was, by
appointment
teachers
Act,
Teachers’ Arbitration
passage
School
*23
from the
of
and made the
purview
§16-2-18
snatched
and- award.
view of the clear
subject of arbitration
in
holding
mandate of
and this court’s
Dawson
§16-2-18
Clark,
R. I.
(1962)
93
Keeping in notion basic is incumbent upon this possible, court harmonize statutes wherever I turn what I proper now to believe to be analysis problem presented to us here. in The issue this case could be framed as Is a grievance follows: arbitrable when exclusive control over matter at issue has been statu- torily granted to the local school committee? If quaere is answered negative, any then award based on a submission to arbitration such issues is a nullity. School Comm. v. Curry, (Mass. N.E.2d App. 1975).
Courts
virtually
are
unanimous
holding that at least
some
categories
disputes are nonarbitrable by virtue
fact that
submission of
disputes
such
would con
usurpation
stitute a
of the exclusive statutory jurisdiction
of the school
Comment, Defining
committees.
the Scope
Grievance Arbitration
Public Education Employ
Contracts,
ment
41 U.
Chi. L. Rev.
(1974)
816-17
cited as
[hereinafter
is,
That
some disputes,
Comment].
being
formally designated
matters of management and
educational policy, do not properly
within
fall
the ambit
of the School Teachers’ Arbitration Act as
“terms
professional
conditions of
employment.” Section 28-9.3-2.
*24
“* * * to accom-
task
therefore,
the court’s
Essentially,
arbitration
for
provisions
contractual
modate
educational
of
and control
management
vesting
to statutes
at 817.
Comment, supra
boards.”
school
in local
matters
Massachusetts,
courts
appellate
of.
decisions
Recent
Dunellen
Jersey,
New
Curry, supra, and
Comm. v.
School
A.
Ass’n,
Educ.
64 N. J.
v. Dunellen
Educ.
Bd. of
template
an excellent
provide
(1973), together
2d 737
involved
Curry
us. The
case
before
in the case
decision
of an arbitration
vacation
from a lower court
appeal
an
position
supervisor
to a
reinstated a
which had
award
the school com
abolished
unilaterally
had been
which
that
affirmed, holding
Court
Appeals
mittee.
“a matter of educational
was
position
abolition
managerial prerogative
the exclusive
within
policy
Curry, supra
Comm. v.
at 286-
School
committee.”
school
Supreme
Court of New
case,
Dunellen
In the
87.
to consolidate
a school committee decision
Jersey held that
not
reviewable
chairmanships was
department
was “not a
in that such a consolidation
panel
arbitration
mandatory
or
subject
nego
of either arbitration
proper
Dunellen Bd.
Educ.
law.
Jersey
tiation” under New
Ass’n,
A.2d
744.
supra
v. Dunellen Educ.
at
at
s
was
acknowledged
goal
of these court
Each
earlier enactments con
rights
new labor
with
reconcile
referred to
committees;
on school
specified powers
ferring
parlance
management
rights.
of the laborite as
Bd.
Curry,
Dunellen
supra
284-86,
School Comm.
at
Ass’n, supra
Dunellen Educ.
311 A.2d
Educ. v.
opinion
of each
underlying presumption
at 741. The
could
respective
two states
Legislatures
of arbitration and col
intended, by
passage-
not have
acts,
lective
local school committees could
bargaining
responsibilities”
orche
management
“abdicate
Curry,
School Comm. v.
policy.
strate
educational
general
*25
361
supra at 286. The other
argument
side
was force
fully presented
the New
Jersey
stating
court
the Legislature
contemplate
did
a “statutory responsibil
ity” to
negotiate
good faith with employees regarding
“* * *
intimately
directly
matters which
affect the
work and welfare of their
Dunellen
employees.”
Bd. of
Ass’n,
Educ. v. Dunellen
supra
Educ.
at
A.2d 526, 534 (1972). It is upon incumbent the courts therefore to render an interpretation of both terms when- clearly belong which does presented a matter is not
ever
executed on
or the other. This chore is best
in one class
in view of the dearth of available
case-by-case
basis
Educ.
Dun
Dunellen Bd.
v.
for decision.
guidelines
Ass’n, supra
ellen Educ.
742, citing
at
311 A.2d at
Ass’n,
supra
DeCourcy,
West
Educ.
Inc. Hartford
581,
The ultimate such a earlier, a determination as to whether the matter stated *26 in issue is arbitrable. An award based on the submission of dispute policy educational is therefore a regarding nullity dispute truly whereas a which involves “conditions of arbitrable and the employment” entirely parties are to, judgment arising entitled on an award from such a dispute.
I in specific turn now to a consideration of issue In my. us, this case. view of facts before we must promotion decide whether the of a school teacher to the position department by of head a school committee which judgment per has made an informed as to that teacher’s qualifications sonal concerns the conditions of employ ment for in prop teachers the school district and thus is panel. reviewable an I erly by arbitration believe that my position support it is not reviewable and finds in the Ass’n, Board Educ. Educ. case of Ill. of Rockford 3d The App. N.E.2d 286 facts are In 1969, similar to the case at bar. the Board of Educa Rockford, Illinois, tion for the of created the City pro position motional of Director of Personnel and Recruit applications position ment and for said from in invited an by posting structional staff members “Announcement particular Vacancy.” guidance along One counselor colleagues with several other of his informed the board position application of his interest and made there The was recommended for the guidance for. counselor in the but later of schools superintendent post by declined to applications rejected all the board year initiated counselor October vacancy. fill the that things, other among proceedings alleging, him to promote improperly failed to the board had After and Recruitment. of Director of Personnel position pro initial stages no at the meeting with success and the the counselor issue was submitted cedure the appeared specially The board association to arbitration. * * “* matter of argue the arbitrator before not intended employment employees selection or and could Agreement included the Professional be and, the Board there not, event, delegated by any Id. N.E. not arbitrable issue.” fore, it was the arbitrator question 2d at 287. was considered This who was arbitrable and set it concluded issue down the matter hearing. trial court considered ques regarding and set aside the arbitrator’s award portions tion of and held those arbitrability agreement relating to arbitration of “matters selection *27 promotion employees” or of null and Id. The were void. appellate affirmed this that ruling stating court
“* * *
may not,
a board
a
through
bargain-
collective
or
ing agreement
otherwise,
to another
delegate
party
those matters of discretion
are
vested
by
board
statute.”
Id.
Illinois has a statute which the board has fix appoint all teachers and the amount duty “[t]o 122, §§10-20 of salaries.” 111. Rev. Stat. ch. (Smith-Hurd Supp. 1975). provision 10-20.7 Under compelled to hold that although agree- court was prescribed promotional policy procedure, ment such appointments were to made the basis of individual “The qualifications. ‘qualifica- ultimate determination ” tion,’ held, not, be, the court “was nor could it delegated the Amer by any agency including the Board to outside ican Arbitration Association.” Board Educ. v. Rock Ass’n, supra Educ. N.E.2d at 288. The 1094, ford issue was not arbitrable. present
The case itself line of lends to a similar reason- ing. plaintiff was recommended and Belanger ap- pointed Chairman of the Department Business at War- wick Veterans Memorial High School. Subsequently, as a result of arbitration2 which culminated a grievance pro- cedure initiated by defendant Matteson and the War- wick Teachers’ Union, replaced Belanger Matte- son in accordance with the terms of the arbitrators’ award. In my view of facts, these it is important to note at this point that after an initial determination by an evaluating appointed committee Superintendent of Schools that Belanger was most fit applicants among the to as- sume disputed position, that determination was af- firmed at step each four-step grievance procedure. That say, is to the employee’s immediate supervisor, Superintendent Assistant Charge Personnel, Superintendent of Schools and the school committee all concurred in the decision should fill post. Belanger, pursuant to the terms of the announce- ment, was found to have the “personal qualifications de- termined by the administration to be necessary for ap- pointment.” This satisfied V, art. sec. 4(b) of the agree- ment which reads:
“Article V Promotional Policy “Section 4. Application * * *
“(b) Candidates shall be recommended on the *28 important plaintiff Belanger 2It party is to note that was not himself a product to the arbitration. The arbitrators’ award was the of a submis by Matteson) (representing sion the teachers’ union defendant and the school committee. quali- Where position. the qualifications basis in the War- seniority equal, fications are considered prevail.” System School shall wick quali- superior to have was considered Because seniority criterion of Matteson’s fications, the fall-back by the administration. never reached system by the opinion written however, in the arbitrators, of the upon a reevaluation arbitrator, embarked chief stan- created their own They findings. administration’s case and plaintiff’s applied them superiority, dards of qualifica- conclusion that their own de novo reached “roughly equal.” Having were tions of the two candidates seniority cri- applied point they simply reached this is entitled and in their award held that “Matteson terion appointment forthwith.” opinion that the school my In these it is circumstances this matter to committee, permitting the submission of auth- arbitration, discretionary unlawfully delegated been to it statute. ority has entrusted power “The doctrine of illegal delegation * * * is a constitutional doctrine which sometimes powers government sharing forbids from with commands illegal delegation others. The doctrine of solely decisions discretionary that certain be made of a official.” judgment designated basis The Limits Collective Bar Wellington Winter, & gaining in Public L. J. Employment, Yale discretionary present case, In the the commitment of on matters of hiring to the school committee judgment sources. The most promotion derives from several above, important, course, §16-2-18, is discussed which * * * of teachers shall be provides that selection “[t]he art. XVI of Similarly vested the school committee.” parties’ acknowledgment own agreement * * * possesses right “the School Committee sole Y, art. sec. [hjire, Finally, or transfer teachers.” assign *29 the to the administration agreement the entrusts 4(b) of in recom- forwarding to exercise its discretion power two items from promotion. While these mendations directly effect than legal have no other the agreement parties’ acknowledgment the they the indicate parties, on of the nature school acceptance nondelegable of the authority. discretionary committee’s discussion, and to relate this to the earlier To conclude here the question the is whether decision fundamental of educational promote Belanger policy was matter discretion) or (committed to school a matter committee conditions of employment (fully terms and affecting arbitrable). In importance view extreme of per- condition for qualifications sonal as a advancement and fact school committee made a studied evalua- same, tion to me appears of the arbitrators venture, permitted were beyond proper scope of authority substantively reviewing the commit- appointment tee’s Where promotion decision. or is to be based the final qualification, determination of that criterion is not delegable school committee to any outside agency, arbitrators. Board including Educ. v. Ass’n, supra Educ. 1093-94, N.E.2d at Rockford 288. view I foregoing, would conclude that
matter was not arbitrable that the award, arbitrators’ ordering department head, installation of defendant as nullity. was a
I the majority’s opinion find to be disturbing yet respect. another even if is, That the issue submitted to the arbitrators was in arbitrable, fact I believe that arbitrators reaching their decision their powers exceeded unenforceable. their award to render to a sufficient degree §28-9-18(b).3 Reenactment) (1968 General Laws 1956 *30 is, powers his exceeded if an arbitrator To determine powers are. what his to establish necessary of course, Mr. Justice by offered point exposition of classic Steelworkers in United writing for the Court Douglas of 593, Corp., Car 363 U. S. Wheel Enterprise & America (1960): 4 1424 1358, 80 L.Ed.2d S.Ct.
“* * * interpretation to confined arbitrator is [A]n bargaining agree- application of the collective of own dispense his brand ment; he does not sit to look for guid- He of course justice. may industrial legitimate his is many sources, yet from award ance only from the collective it draws essence long so as 1361, 597, Id. at 80 S.Ct. bargaining agreement.” 1428. 4 L.Ed.2d at the interpreting therefore is confined
The arbitrator His parties. the fulfill the intentions of so as to agreement of parties agreement when the the power is created are free to parties into the is entered submission Cath Norwich Roman powers by agreement. limit those England New Contract olic v. Southern Corp. Diocesan ing Co., 274, 164 Conn. 325 A.2d 476-77, meas It is the in these matters to upon incumbent court power. ure the One grant yardstick the award against measurement has been as an aid such suggested assumption is the “* * * express provision in the contract absent parties the the intended the contrary, arbitrator irresponsible should not be enabled to make an (1968 Reenactment) §28-9-18, part, 3General Laws 1956 reads follows: vacating any following cases, “Grounds award. —In vacating upon application award,
court must make an order
any
controversy
party
which was arbitrated.
* * *."
“(b)
powers
Where the arbitrator
or arbitrators
exceeded their
with,
possible
award at variance
any
construction of
**
being
question
contract
*. This
assumed, for the
court whether
of the
the construction
con
tract made
is a reasonably possible
arbitrator
one that can
made in
seriously be
the context
which the contract was made.
affirmatively,
Stated
if all fair and reasonable
would agree that
minds
construction of the
made by
contract
the arbitrator
possible
was not
under
fair interpretation
contract,
then
court
would
bound to vacate
or refuse to confirm the award.”
Some Com
Pirsig,
ments
Arbitration Legislation
Act,
the&
Uniform
10 Vand.
(1957),
L. Rev.
University
cited in
Constr.,
Modern
Inc.,
Alaska v.
522 P.2d
1974).
(Alas.
n.12
*31
judicial
It is conceded
that
review
arbitrators’ decisions
limited, yet
proper
is
judicial
the
where
remedy
an arbi
“perverse
trator exceeds his power by giving
misconstruc
tion” to the
bargaining
collective
is
agreement,
vacation
Girvan,
of his award. W. M.
Inc.
Robilotto,
40 App.
Div.2d 1060, 1061, 338
(1972);
N.Y.S.2d
Gen
eral Laws
(1968 Reenactment)
gen
See
§28-9-18.
erally
Ass’n,
Board
Educ. v. Champaign Educ.
15 Ill.
App.3d 335, 340,
Applying
principles
these
I
bar,
case at
the
conclude
the
that
arbitrators
powers
exceeded their
in reaching
their conclusion that Matteson and
not
was
entitled to
appointment.
the
While the arbitrators were
free to interpret
agreement
the
as it applied
promo-
policy,
tional
were
they
not free to render a reading that
clearly
was
plain
to the
contrary
of the
meaning
contract.
Livingston
Co.,
v. Tel-Ant Electronic
I would find that this constituted a “perverse miscon- struction” of the of the agreement terms and warrants the vacation of the award. The arbitrators plainly ex- ceeded their powers. Consequently, §28-9-18(b) provides the award must be vacated.
Petition for reargument denied. Licht, A.
Letts, Quinn Licht, Licht, Frank Richard & plaintiff. for Williams, Graham, Frank J. for
Tillinghast, Collins & B. Arthur Matteson. Union, Skolnik,
Richard A. for Warwick Teachers’ defendants. A .2d 123. P.
Barbara M. Glodis vs. Thomas Glodis. OCTOBER 1975. Doris, Roberts, J., Paolino, Joslin, Kelleher and JJ. C. Present: