*2 six, remaining In the Niles’ minus.” WERNICK, GODFREY, Before NICH- nar- was evaluated as “two.” A formance GLASSMAN, and OLS JJ. category evaluation each in which rative rating a “two” was received was attached "GLASSMAN,Justice. to the evaluation form. This is an from a ratings, in- Dissatisfied with these Niles Court, County, denying York grievance procedures voked the set forth defendant’s Motion To Vacate Arbitration bargaining agreement. He discussed pursuant 5938(1)(C) Award to 14 M.R.S.A.§ Superintendent the matter with affirming the award of the arbitration rebuttal, as authorized submitted written B, panel. The Unit Kit- plaintiff-appellee, 14(C) agreement.1 Be- tery (Association), Teachers Association not resolve procedures cause these did duly agent authorized satisfaction, Asso- “grievance” to Niles’ principals Kittery public school ciation, the is- request, at Niles’ submitted system. The Association had entered into sue to arbitration. bargaining agreement collective 9, Kittery August On the. arbitration defendant-appellant, three arbitrators. (Committee). behalf of J. held before On system. given bargaining agree- A will be a written 1. Article 14 of ment, Descriptions report “Position and Eval- or evaluation which entitled uations,” provides prepared Section C: his evaluator and it, quest discuss and offer a conference to Principals given honest fair written rebuttal. supervisory certified Superintendency position school motion because “the arbi- the Committee’s upon analyzing the panel, The arbitration a clear intention opinion manifests written evaluations and trator^’] the contract language interpret the basis testimony explaining oral [of] of the written modify the terms rather than ratings, found that the evaluation for the . . .” required by Arti- a whole was not “fair” party challenges this cle Neither Court, argues Before this the Committee *3 majority A of the arbi- appeal. arbitrable evaluation is not that an unfair “offending evalu- panel tration ordered provides agreement because ation,” related to as well as all materials in Article right written rebuttal personnel grievance, excised from Niles’ contends The Committee intended rebuttal providing parties the hones- means to review be the exclusive 7 Article evaluation, preempt- Files,” ty and fairness of an “Personnel agreement, entitled ing arbitration. right to review served the materials and rebut all nonconfidential inter-

placed in his file. v. In Committee Westbrook School Association, Me., limit their as not intended to 404 preted this Westbrook Teachers they (1979), which characterized powers, remedial we set forth A.2d 207-08 that rebut- “plenary.” panel question found determining standard for remedy “where the inadequate tal was an arbitrability: substantive satisfy the as a whole fails to strong policy fa legislature’s Maine [T]he ” fair.’ standard of ‘honest and contractual conclusion dictates a voring arbitration panel justifying its choice subjected to dispute has wrote: generally parties if have arbitration specifi- not

[Although disputes the contract does and if “the agreed to arbitrate demand the cally making authorize the teacher to is a party seeking arbitration which, face, from his governed removal of an unfair evaluation is claim on its files, panel (Em an arbitration nor authorize contract.” the collective removed, Firefighters has the it the teacher Lewiston phasis original). to order in Lewiston, [Me., requesting its removal2 354 option City Association power, in the panel (1976)]. By has the an alternative arbitration A.2d 165 case, to order its removal. a court appropriate has been held that formulation it it “unless dispute find a arbitrable positive with assurance

may be said plenary pow- susceptible is not have clause generally the arbitration [Arbitrators asserted appropriate to that covers the interpretation any order er to breach, it in provided should be resolved dispute. Doubts repair the contract specific provision coverage.” United Steelworkers favor of not contravene does Co., Navigation & Gulf v. Warrior [363 of the contract. 574, 582-83, 80 S.Ct. U.S. To timely a Motion filed The Committee (1960)]. L.Ed.2d 1409 Award, contending inter Arbitration Vacate Committee the Westbrook School As in their exceeded alia case, the Commit- agreement between complaint finding that Niles’ includes the Association tee and terms of grievance under the in fact sub- grievance to be allowing agreement the relief granting resolved to the if “not to arbitration mitted denied Superior Court expungement. or believes to be obsolete his file which he referring Article 7 are here The arbitrators inappropriate doc- to retain. Such otherwise (A)(1): Files”), (“Personnel Section Superintend- reviewed uments shall be right Principal review shall have A they if in fact ent or his his Personnel contents non-confidential retain, inappropriate obsolete or otherwise right Principal to indi- have the A shall File. added). (Emphasis destroyed. they shall be materials and/or other documents cate those us, principal’s satisfaction” under the first In the case is clear that before interpreting and adjustment proce- three levels of the formal contract re applying the when it ordered 3(B)(1) unequivocally pro- dure. Article person moval of the evaluation from Niles’ ‘grievance’ “A any alleged vides: is viola- 7(A) that docu provides nel file. dispute of this any tion or in a file shall be ments contained respect meaning application.” to its or in fact destroyed “if are obsolete express provision agree- There is no . . .” otherwise to retain way scope ment that limits the “inappropriate A conclusion that applicability of this claim definition. The retain” an unfair evaluation in a stated Niles’ eval- Association—that its essence the contract. file draws uation “honest and fair” within the meaning 14(C) appears of Article on its — Although not raised Court grievance subject face to be a arbi- Court, the briefs procedures tration This argument argued oral *4 give is sufficient to the arbitration infringed Superintendent the award Wood’s jurisdiction over the claim. right speech first amendment free made to applicable through the four states

As its point appeal, second the to teenth amendment argues the United States pan Committee that the arbitration importance Constitution. Because the of ordering el exceeded its removal asserted, right parties we permitted the of the unfair person evaluation from Niles’ opportunity supplemental to an submit general nel file. The governing rule review briefs. We conclude that an provides: arbitrator’s award award, panel’s ordering of the of removal judg- While a court will not substitute fending personnel evaluation from Niles’ arbitrator, ment for that of it will file, way infringes Superintendent in no conclude that the exceeded his arbitrator right Wood’s first to free amendment powers by travelling agree- outside speech. We base conclusion on the this ment, and will to enforce therefore refuse nonpublic personnel nature files award, the arbitrator’s if it finds no ra- themselves and on the means of alternative tional construction of the contract that communication Wood for ex available to support Westbrook award. personal pression of his views. Con See v. Westbrook Teachers necticut Teachers v. State Federation of Association, supra, 404 at 209. A.2d 471, Members, of Education F.2d Board 538 employed by standard of review to be (2d 1976). 479 Cir. determining court in whether the fashioned an arbitrator “travels outside It is well that first established agreement” is principles only whether the award when a apply amendment “ ‘draws its essence the collective bar- has been public from forum communication ” gaining agreement.’ n.9, See, quoting g., City Id. at e. Lehman v. established. 2714, 298, United Enterprise Heights, Steelworkers v. Wheel & 418 94 S.Ct. Shaker U.S. Co., 1358, (1974); Car 363 U.S. 80 L.Ed.2d 770 State S.Ct. 41 Connecticut 1361, (1960); 4 1424 Educa L.Ed.2d see also Cari- Federation of Teachers v. Board of 480-82; Members, supra, Board of Teachers bou Education v. Caribou tion 538 F.2d Association, Me., (1979). New Rutgers, University 404 A.2d 212 Avins v. State denied, Thus, (3rd Cir.), required remedy Jersey, it is not 385 F.2d 151 cert. that appropriate L.Ed.2d 982 particular deemed to meet a 88 S.Ct. 19 U.S. (1968). alleges situation be as such in the No one that denominated files for bargaining agreement. If the has access to public collective these expression communica rationally purpose has been derived from the Indeed, agreement, it upheld. will be Caribou tion. confi highly itself Board of Education v. Teachers reflects Caribou Association, limiting the supra. nature of the files dential to principal disagree, however,

access his own file. Article I respectfully must principal given 7 states that the with the construction review opportunity only expungement “the non-confi- to be holds his authority dential contents of Personnel File.” It arbitrators’ remedial is thus apparent Superintendent by implication agreement. Ex- from right put the person- pungement material in of a right nel files and the principal’s limitations from the file maintained employment. superintendent arise from his as a ought regarded Neither the anyone nor else has a first should drastic and the arbitrators right place permitted amendment written commu- not have been to infer their au- nications in Niles’ thority language The or- to order it from con- dered Super- does not restrict in this Cer- tained intendent from tainly otherwise disseminat- such should not be inferred ing or his expressing opinions. 7(A), giving Under presented, right indicate, circumstances here su- principal there is no perintendent violation the first the authority amendment. to mark for de- struction, principal’s personnel in a material As to all issues but one the Court is superintendent file his and, unanimous since as to one issue believes to be “otherwise divided, evenly the Court the judgment retain”. of the Superior Court must be affirmed. is: agreement gives section That right indicate materi- such Appeal denied. *5 als file as to obsolete or in his he believes Judgment affirmed. ma- inappropriate to retain. indicated superin- are to be terials reviewed WERNICK, J., concurring. they or his and “if in fact tendent GODFREY, Justice, with whom NICH- obsolete otherwise concurs, OLS, Justice, retain, destroyed.” In the concurring part they shall be in Dr. dissenting part: supervisory and in context of Wood’s the ed- responsibilities under section 161 of given by For Justice the reasons Glass- specific responsibili- law and ucation of the man, agree I that the arbitrators did not ty, assigned Kittery School him powers by finding exceed their Mr. Niles’s Committee, principals to evaluate all complaint arbitrable under the collective Kittery System, was not a bargaining agree also I that it con- rational construction of the was not intended that the remedies availa- from Arti- tract for arbitrators infer to a principal ble an unfair evaluation had provisions they cle or other be confined conference rebuttal authority to order removal of Dr. Wood’s expressly provided by Fur- from file principal’s evaluation official thermore, agree I must the First This was a direct maintained Dr. Wood. apply, Amendment does not as a mandate unnecessary Dr. interference with positive law, prohibit assigned respon- his performance of expungement of the ordering superin- from unnecessary sibilities, as an operated principal’s tendent’s from the evaluation of an prior preparation restraint on explicitly pro- If were record. official agreement, nothing vided directly Although must have in the Constitution would bar its enforcement, supportable by although I have other remedies that are would fashion contract, in of the validity in view of construction reservations about rational is “ra- deciding whether their construction of 20 defin- § M.R.S.A. tional”, necessary to look at the effect ing superintendent’s it is administrative sitúa- chosen whole sponsibilities. aspect There is an of this case that makes not be deemed tion. The contract should rationally support remedy especially choice of the arbitrators’ goes beyond is needed to re- plainly what of an evaluation unfortunate. The fairness and, in complained-of grievance dress the dependent principal highly teacher or is of a so, unnecessar- doing directly interferes person’s which that position on the legitimate ily performance with the of a superin- performance perceived. Here, the parties. function one of the admin- principal’s is the immediate tendent objective primary Association’s had superior sprawling govern- istrative served, having Dr. Wood’sevaluation arrangements public education. mental performance Mr. de- Niles’s prin- clared “unfair” a board of arbitrators. stu- cipal unique system: neither purposes it sufficed to order that For record dents, teachers, nor board parents, nor nor at- of the arbitrators’ decision be members, nor outsiders have the same placed tached to Dr. Wood’sevaluation and spective superintendent prin- on the file, accompany in Mr. Dr. Wood’s Niles’s all times. person, evaluation at third in- cipal’s performance. No hearing, after full cluding arbitrators have, usually and should Arbitrators of that entirely appreciate dynamics have, fashioning remedies wide discretion relationship.1 While we complex, on-going grievances for the under collec- redress reviewing agreements. tive On accept appeal the arbitrators’ courts the arbitrators’ choice of superintendent’s evaluation of the that the only sup- ask the choice is should whether “honest”, principal, though basically ported by a rational construction of the meaning of the con- not “fair” within contract. But arbitrators should under- tract, opinion we note in the arbitrators’ choosing among possi- stand that in various even had some reservations about do, which ble effective remedies some of principal’s perform- aspects certain not, necessarily and some which do result Their criticism of the evaluation ance. legiti- interference with the substantial conclusion that the factual based on their operations party mate of either to the con- by Dr. Wood for his six eval- evidence cited tract, “rational construction of the con- work in the “fair” uations of Mr. Niles’s *6 requires tract” the choice of a non-interfer- category (as distinguished from his seven ing remedy. be un- Especially should this support the numeri- “good” ratings) did not public sector by derstood where, here, impres- performance by public rankings. report cal leaves as statutory responsibilities officials of their that at arbitrators surmised sion that the may be affected the arbitrators’ decision rankings might the “fair” least some of remedy. grievance The cause of arbitra- they had not justifiable been but that have be served such an tion would better sketchy Dr. justified by the facts approach question to the rather supporting memoran- supplied in his approach merely than that searches hearing. at the testimony in his da or of the contract to determine order of of the arbitrators’ The effect its es- whether the chosen “draws expungement sence from contract”. Some perform- Mr. Niles’s evaluation of remedy may interests affected from Mr. Niles’s is excised in the contract. ance be evident problem far fully acknowledge relations is fact in of boss-subordinate 1. The arbitrators pictured possibly opinion, saying repeatedly complex be can- more by job than their not and will not substitute description. their But the foundation Moulton, recognizing management understanding of Dr. Wood. See R. Blake & J. is in (1964): Managerial Grid dictated certain a boss’ actions are super- assumptions regarding how he makes hierarchy every organization has While omit- job respon- vision should be exercised. many organizations [Footnote de- while have and scriptions sibility depict ted] an individual’s position, the under his hierarchical file maintained Dr. asWood part responsibilities. of his official To B. Jean THORNTON and Charles whatever extent the contents that file M. Thornton available through years made frequently school committee with chang- ESTATE of Gerald E. et al. CRESSEY ing membership, to successive commission- education, ers of perhaps to prospective Supreme Judicial Court of Maine. employers colleagues academic of Mr. April 22, 1980. Niles, persons those will not have whatever benefit be knowing there what Su- 10, 1980. Argued Jan. perintendent Wood’s uncoerced evaluation 22, 1980. April Decided Mr. performance was, really Niles’s how- ever unfair that evaluation may have

seemed to the arbitrators.2 situation,

In such a expungement oper-

ates, just as censorship prior restraint

operates domain, public destroy

certain possibilities for the communication

of certain ideas. The fact that number persons relatively small whom the expected

ideas to be communicated suppression pervasive

renders the less

effect objec- but does not render less principle. Nothing

tionable in within the

four corners

agreement justified a result so contrary spirit purpose constitutional

policy against prior restraint in the commu-

nication of ideas. Court

should modified to aside the set arbitra- going

tors’ beyond award as their

insofar Super- orders

intendent Wood’s It evaluation. would be power arbitrators’ remedial

order of their decision

evaluation unfair be included with the *7 in the princi-

pal’s file. The should modi-

fied accordingly. system. be “the alternative means of holders of office in the educational Whatever expres- provided communication available to Wood for contract that no personal (Justice regarding principals sion of his records or views” Glassman’s sonnel files single opinion, “separate page from a Person- supra), maintained likely are communicating a mode of to future nel File.” include