Bd. of Ed. for Dorchester Co. v. Hubbard

ELDRIDGE, Judge. The Maryland General Assembly, by Maryland Code (1978, 1985 Repl.Vol.), § 6-408(b)(l) of the Education Article, gave public school employees the right to designate an exclusive negotiating agent empowered to meet with representatives of the local school board and negotiate an agreement relating “to salaries, wages, hours, and other working conditions.” Section 6-408(a)(2) of the Education Article further permits the parties to “provide for binding arbitration of the grievances arising under the [collective bargaining] agreement that the parties have agreed to be subject to arbitration.” In the instant cases, the parties raise important questions as to the scope of permissible collective bargaining under these provisions. Despite the importance of these matters, we shall not be able to address them because, in our view, the applicable administrative remedies have not been invoked and exhausted. ⁷⁷⁸ I. The relevant facts in each of the cases before us are as follows. Board of Education for Dorchester County v. Sherri Hubbard et al. Ellen Rindfuss and Sherri Hubbard are tenured classroom teachers employed by the Board of Education for Dorchester County.

They are members of the unit of employees represented by Dorchester Educators, Inc., the exclusive collective bargaining representative for non-administrative public school employees in Dorchester County. The collective bargaining representative and the County Board entered into a three-year collective bargaining agreement effective July 1, 1981. The agreement defines a grievance as “a written statement by an aggrieved party that a controversy, dispute or disagreement of any kind or character exists, arising out of or in any way involving interpretation or application of the terms of this agreement.” Article 12, paragraph 12.1(B). The agreement provides for a four-step grievance process, culminating in binding arbitration.

The first three steps direct a grievance to be taken, first to one’s immediate supervisor, second to the school principal or his designated representative, and third to the County Superintendent. If the dispute remains unresolved, the collective bargaining representative may submit the dispute to binding arbitration. The agreement further provides, in Article 12, paragraph 12.2(D), as follows: “D. Jurisdiction and Authority of Arbitrator The jurisdiction and authority of the arbitrator and his opinion and award shall be confined to the expressed provision or provisions of this Agreement at issue between the Association and the Board. He shall have no authority to add to, alter, detract from, amend or modify any provision of this Agreement, or to make any award which will in any way deprive the Board of any of the powers delegated to it ⁷⁷⁹ by law and not encompassed in this Agreement.

The award of the arbitrator, in writing, except if set aside by a court of competent jurisdiction, shall be final and binding on the aggrieved employee or employees, the Association and the Board____” The agreement also grants teachers certain substantive rights, including the following: “Article 4 — Teachers’ Rights 4.1 No teacher will be disciplined or reduced in rank or compensation without just cause. * * * * * * 4.9 Evaluation Teachers shall be evaluated in accordance with Public School Laws of Maryland and Board of Education Policy and Procedure.” During the 1982-1983 school year, Rindfuss and Hubbard were subject to formal observation and evaluation of their work performance. Such evaluations are routine, and are designed not only to help the evaluated teacher maintain a high level of teaching proficiency, through feedback and suggestions for improvement, but also to aid the county superintendent in his rating of each teacher’s certificate as required by law. The bylaws of the State Board of Education, Bylaw 13A.07.01.01A, COMAR 13A.07.01.01A, require that each public schoolteacher in Maryland hold a Maryland State Teacher’s Certificate. 1 These certificates are issued by the State Superintendent of Schools and are of various types, e.g., “Standard Professional Certificate” or “Advanced Professional Certificate,” depending on the teacher’s education and experience. Bylaw 13A.07.01.02.

Besides being of various types, depending on the teacher’s professional background, the certificates are of two classes: first class and ⁷⁸⁰ second class. § 6-103(a) of the Education Article. The State Superintendent must rate each certificate “second class” when first issued. § 6-103(b). Each county superintendent, however, is then required to review and classify the certificate of each teacher in his local system at least once every two years. § 6-103(c). In deciding which class of certificate each teacher is entitled to hold, the county superintendent is statutorily required to consider the teacher’s scholarship, executive ability, personality and teaching efficiency.

Furthermore, it is the county superintendent’s responsibility to keep a record of the class of certificate which each teacher holds. The formal evaluations of Rindfuss and Hubbard for the 1982-1983 school year rated them unsatisfactory in several areas, and recommended that they be put on second class teacher certificates. Mr. William J. Cotten, the Superintendent of Schools for Dorchester County, after considering these recommendations, rated both teacher’s certificates as second class for the 1983-1984 school year. Previously each teacher had been on a first class certificate.

Both teachers were unhappy with the substance of the teacher evaluations, and with their placement on second class certificates. They filed grievances pursuant to the procedures set out in the collective bargaining agreement, but the County Superintendent refused to consider either grievance, stating that his classification of a teacher’s certificate was not subject to the grievance procedures. The teachers sought to have their disputes submitted to binding arbitration. The County Superintendent and County Board refused to submit to arbitration, relying on their position that the classification of teacher certificates is not an arbitrable matter.

When the teachers attempted to proceed to arbitration unilaterally, the County Board filed bills of complaint on September 14, 1983, in the Circuit Court for Dorchester County, asking for a declaratory judgment and an order staying arbitration. The Board based its requests for relief on three grounds: 1) that the ⁷⁸¹ disputes were not committed to arbitration under the terms of the collective bargaining agreement; 2) that the power to rate a teacher’s certificate is vested by statute in the County Superintendent and the County Board and is not delegable to an arbitrator; and 3) that any review of a decision by a county superintendent and county board concerning the proper teacher’s certificate is committed by § 4-205(c) of the Education Article 2 to the State Board of Education and is not delegable to an arbitrator. The cases were consolidated before trial. The circuit court denied the stay of arbitration, holding that “the disputes in these cases are subject to arbitration.” In so holding, the court found that these disputes are within the scope of arbitration under the collective bargaining agreement.

The court also found that “there was no illegal or improper delegation to arbitration” and that the disputes at issue are within the scope of permissible collective bargaining under the Education Article. In deciding that these disputes are within the scope of permissible collective bargaining under the Education Article, the Court relied on what it deemed “persuasive” Pennsylvania authority. See School District of the City of Erie v. Erie Education Association, 67 Pa. Cmwlth. 383, 447 A.2d 686, 689 (1982).

The court did not discuss the Maryland cases dealing with collective bargaining and arbitration in the public sector. See Office & Prof. Employees Int’l v. MTA, 295 Md. 88 , 453 A.2d 1191 (1982); Maryland Cl. Emp.

Ass’n v. Anderson, 281 Md. 496 , 380 A.2d 1032 (1977); Mugford v. City of Baltimore, 185 Md. 266 , 44 A.2d 745 (1945). The court did not interpret the language of § 6-408(b)(l), which authorizes collective bargaining concerning matters “that relate to salaries, wages, hours, and ⁷⁸² other working conditions,” as expressly including disputes over teacher evaluations and the classification of teacher’s certificates. Instead, the trial court stated that the statute does not expressly withdraw such disputes from the scope of collective bargaining and that, therefore, the County Board had authority to subject them to binding arbitration. For these reasons, the circuit court concluded that “[ujnder the facts of these cases, respondents have the election at this point to proceed either through the appeal process contemplated by Code ... § 4-205, or through arbitration under the applicable provisions of the Negotiated Agreement.” The court, therefore, denied the County Board’s requests for relief.

By agreement of the parties, however, the trial court stayed the execution of its order pending a decision on appeal. The County Board took an appeal to the Court of Special Appeals. Before any further proceedings in that court, we granted the County Board’s petition for a writ of certiorari. Board of Education of Garrett County v. Garrett County Teachers’ Association Barbara Sweitzer and Carole Glotfelty are employed by the Board of Education for Garrett County, as kindergarten teachers at the Broadford Elementary School.

They are members of the unit of employees represented by the Garrett County Teachers’ Association. The Teachers’ Association and the Garrett County Board entered into a three-year collective bargaining agreement, effective July 1,1982. The agreement provides for grievance procedures similar to those in the Dorchester County agreement. A grievance is defined as “an unsettled cause of complaint arising between a grievant and the Board over an alleged violation, misinterpretation, or misapplication of the terms of this Agreement.” Article II, paragraph A(l).

Four procedural levels are described, an informal level and three formal levels. First, the grievant “shall meet and discuss the problem with his immediate supervisor for the purpose of ⁷⁸³ resolving the matter informally.” If the grievance is not resolved informally, the grievant must within ten days file a written grievance with “the appropriate administrator or supervisor who shall hold a conference with the grievant ... and render a decision” (Level One). If still dissatisfied, the grievant may appeal to the Superintendent. The Superintendent, after holding a conference with the grievant, must render a written decision (Level Two).

Finally, the Teachers’ Association may appeal the decision of the Superintendent to arbitration (Level Three). The provisions dealing with arbitration provide that “[a]ny grievance concerning the alleged violation of this agreement that has been properly processed through Level One and Level Two of the grievance procedure and has not been settled or waived may be appealed to arbitration procedure by the Association by serving written notice to the Board.... ” Article II, paragraph C(4)(b). The agreement also provides, under Article III, titled “WORKING CONDITIONS,” as follows: “F. Class Size Class size should not be unreasonably large for the grade level and subject matter taught. When class size is determined to be unreasonably large by the teacher, the concern may be presented to the faculty advisory council for administrative review and action.

The teacher shall be notified of the action taken within ten (10) days.” During the early part of the 1982-1983 school year, Barbara Sweitzer and Carole Glotfelty decided to question the size of the kindergarten classes which they had been assigned to teach that year. First, the teachers met informally with Wayne R. Johnson, Principal of Broadford Elementary School, and attempted to resolve the dispute. Although he was sympathetic to their concerns, Mr. Johnson was unable to obtain approval from his superiors to grant the relief requested. Next, the two teachers presented their complaints to the Faculty Advisory Council, in accordance with Article III, paragraph F, of the agreement.

The Council recommended, inter alia, the employment of an ⁷⁸⁴ additional kindergarten teacher, but the Council’s recommendations were not implemented by the Garrett County Board. On October 5, 1982, the teachers filed a formal grievance requesting that the Board provide an additional teacher for the kindergarten. The grievance was denied by their supervisor, and they appealed to the Superintendent, Jerome J. Ryscavage. He denied the grievance on the ground that class size “is not grievable under the terms of the agreement____” The teachers’ association filed a timely request for arbitration.

The Garrett County Board of Education initially declined to participate in the arbitration proceedings. Upon learning that the American Arbitration Association intended to proceed with arbitration, with or without the Board’s participation, the Board filed a declaratory judgment action in the Circuit Court for Garrett County, seeking a stay of the arbitration proceedings and a declaration that class size is not arbitrable. The circuit court stated that class size relates to both educational policy and working conditions. Because class size does affect working conditions, the circuit court found that the matter was subject to arbitration under the Education Article.

The court also found that class size is arbitrable under the agreement between the Teachers’ Association and the County Board. The parties were ordered to proceed with arbitration. No appeal was taken from that order of the circuit court. On May 10, 1983, the arbitration hearing was held.

On July 1, 1983, the arbitrator issued his decision, finding that the classes assigned to Glotfelty and Sweitzer for the 1982-1983 school years were “unreasonably large” and that the County Board is obligated to take whatever action it can to remedy the situation with the burden on the Board to prove that it has exhausted all avenues of relief. On July 27, 1983, the Board filed in the Circuit Court for Garrett County a petition to vacate the decision of the arbitrator. After a hearing, the petition to vacate was ⁷⁸⁵ denied, and the County Board filed an appeal to the Court of Special Appeals of Maryland. Before argument in that court, we issued a writ of certiorari.

II

The Boards of Education argue in this Court (1) that the collective bargaining agreements, under proper principles of construction for agreements of this nature, do not provide for the arbitration of the “education policy” issues in these cases and (2) that, regardless of the meaning of the contract provisions, under state law the resolution of the issues in these cases could not properly be made the subject of collective bargaining and arbitration. In amplification of the second argument, it is contended that the statutory authority of the county boards of education and the State Board of Education to decide the type of questions involved in these cases cannot be “delegated” to an arbitrator under a collective bargaining agreement. The County Boards’ first argument need be reached only if we reject their second argument concerning the statutory authority to bargain collectively over the teacher’s certificate and class size issues. A third question, however, is whether a court should in the first instance decide if the teacher’s certificate and class size issues are subject to collective