City of Biddeford Ex Rel. Board of Education v. Biddeford Teachers Ass'n

304 A.2d 387, 83 L.R.R.M. (BNA) 2098, 68 A.L.R. 3d 833, 1973 Me. LEXIS 294

• Court: Supreme Judicial Court of Maine
• Decided: April 30, 1973
• Status: Published

Opinions

WEATHERBEE, Justice.

These two complaints necessitate our first examination of the provisions of the Municipal Employees Labor Relations Law, 26 M.R.S.A. Chap. 9-A, which was enacted by the Maine Legislature in 1969. The complaints direct our attention only to the application of the statute to teachers in the public schools.

In the fall of 1970 the Board of Education of the City of Biddeford and the representatives of the Biddeford Teachers Association entered into negotiations in an attempt to effect a contract for the professional services of teachers in the Biddeford public schools for the school year 1971-1972.¹ When the Board and the Association were unable to reach an agreement, the fact-finding procedures provided in section 965(3) were called into play but they proved unsuccessful. Finally, in August of 1971 the parties resorted to the arbitration process found in section 965(4).

The three arbitrators held a hearing on the various provisions of the proposed contract which were in dispute on September 22 and 23, 1971. Both sides were given opportunity to offer testimony and documentary evidence and to present argument on the disputed issues. Later, on November 17, 1971 the arbitration panel issued a unanimous decision in which it made findings and determinations as to disputed sections and directed the parties to enter into a written agreement (retroactive to September 1, 1971) which included each of their determinations.

The Board refused to enter into the agreement and on December 13, 1971 the Association brought an 80B complaint against the Board and the Superintendent of Schools asking that the Defendants be ordered to comply with the determination of the arbitration panel and enjoined from continuing to refuse to do so.

On December 14, 1971 the Board brought an 80B complaint against the Association (and the two then surviving arbitrators) alleging that the award contained erroneous rulings of law and fact and was invalidated by partiality of an arbitrator and by prejudicial conduct of the hearing.

The two actions were consolidated for appeal and, upon the parties’ agreement, the consolidated actions were ordered reported to us upon the complaints, answers and stipulation “for such final decision as the rights of the parties may require”. The stipulation presents for our study the 1970-1971 contract, the 1971-1972 contract, the Determinations and Recommendations of the Arbitration Tribunal and the agreed fact that “David W. Bustin [one of the arbitrators] is employed full time by the Maine Teachers Association with which the Biddeford Teachers Association is affiliated and participated as advisor on behalf of the latter association at various times in the bargaining process prior to the arbitration.”

The purpose of the Municipal Public Employees Labor Relations Law is stated by 26 M.R.S.A. § 961 as follows:

“It is declared to be the public policy of this State and it is the purpose of this chapter 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.”

Unquestionably the Board of Education of the City of Biddeford is a public employer as defined by the Act, and the Association is composed of teachers in the Biddeford public schools who are among the public employees who are entitled to the benefit of the Act. The authority of the Association to represent the teachers as their chosen bargaining agent is not disputed.

The Act makes it the obligation of the public employer and the bargaining agent to meet and bargain collectively and provides a four-step procedure consisting of negotiation, mediation (when jointly requested), fact finding and arbitration.² The parties are first obligated to negotiate in good faith concerning “wages, hours, working conditions and contract grievance arbitration”- — with the exception—

“ . . . [T]hat public employers of teachers shall meet and consult but not negotiate with respect to educational policies for the purpose of this paragraph, educational policies shall not include wages, hours, working conditions or contract grievance arbitration;” ³

Secondly, if the parties are unable to agree after negotiation they may jointly agree upon mediation procedures. Thirdly, if mediation procedures are omitted or are unsuccessful, either one or both may request fact-finding and the parties are then obligated to present their contending positions to the fact-finding board which will, after hearing, submit its findings to the parties. If a 30-day period of further effort to resolve the controversy is unsuccessful either party may make the findings public. Fifteen more days are then allowed to permit a further good faith effort to resolve the controversy. Fourth, and lastly, if, after another ten days they have not agreed as to an arbitration procedure, either party may request in writing that their differences shall be arbitrated in accordance with the procedure described in subsection 4.

In brief, this procedure requires each party to choose an arbitrator and the two so chosen shall name a “neutral” arbitrator. The three arbitrators shall then proceed to hear the matter. If the subject of the controversy has been salaries, pensions or insurance, the arbitrators shall recommend terms of settlement which are advisory only and may make findings of fact. As to other matters in dispute the arbitrators shall make determinations which are binding upon the parties and “the parties will enter into an agreement or take whatever other action that may be appropriate to carry out and effectuate such binding determinations”. The determinations are subject to review in accordance with M.R. C.P., Rule 80B but, in the absence of fraud, the arbitrators’ decisions upon questions of fact are final.⁴

PART I

The Act obviously represents a fresh approach to municipal public employee labor relations problems and enters an area as yet unexplored here. In the field of education, particularly, it appears to clash with traditional concepts of school control and management. As a result, members of the Board here — as several school boards in other jurisdictions have done — protest that if the members entered into the proposed contract, as the arbitration award has ordered them to do — they would be surrendering their authority as public officers to persons who are in no way responsible to the electorate.

Traditionally, the control of the public schools has been entrusted to the local school boards since our State’s earliest days. When our Constitution was adopted on October 29, 1819, Article VIII read:

“A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools;

The first Legislature promptly acted upon this directive (P.L.1821 Chap.. 117) by (sec. 1) requiring the various towns to raise money for maintenance of public schools⁵ and (sec. 3) by giving local school committees responsibility as to the qualification of teachers, the books to be used and the conduct of the local educational process.⁶ Although the nature of the educational units changed with the growth of our communities through the years,⁷ the responsibility for the management of local public educational systems has remained, substantially unchanged, in the local school authorities — primarily the local superintending school committees ⁸— with the exception of two developments. The Legislature, having originally delegated to local school bodies the entire responsibility for the conduct of public primary and secondary education, soon began taking back selected portions of this authority by enacting specific parcels of legislation which imposed various requirements upon the conduct of the local education process. Examples of this are found today in statutes which create certain school holidays,⁹ establish a minimum number of sessions,¹⁰ require that study in hygiene be offered,¹¹ that health, safety and physical education studies be taught¹² and that the school committees appoint a school physician, etc.¹³ In 1868 the Legislature made a single major inroad into local school committee authority when it created the office of State Superintendent of Schools and empowered that officer “to exercise a general supervision of all the public schools and to advise and direct the town committees in the discharge of their duties”.¹⁴ Later, this official became the Commissioner of Education and, under the reorganization of 1971, became the Commissioner of Education and Cultural Resources.¹⁵ He still retains supervisory powers, now somewhat more detailed, over the conduct of local education. 20 M.R.S.A. § 102, subsections 1 and 7.¹⁶

Until the enactment of the Municipal Employees Labor Relations Law, the local school authorities retained all the responsibility for the operation of the public schools which had not been given to the Commissioner of Education or specifically assumed by the Legislature. The effectiveness of their authority has been limited, of course, by the extent that local legislative bodies made finances available.

While the present actions present many issues concerning various areas of the arbitrators’ award, we must first consider the constitutionality of the Act in so far as it requires local school boards, at the request of the teaching employees, to submit to binding arbitration disputes arising both out of the making of the labor contract and out of later employment under the contract. Can the superintending school committees constitutionally delegate this authority to arbitrators? In requiring them to do so, can the Legislature constitutionally take away the authority which local officials had traditionally exercised and repose it in persons who compose ad hoc boards of arbitration? If so, has there been such a valid delegation of authority here ?

“ . . . All acts of the legislature are presumed to be constitutional and this is a ‘presumption of great strength.’ The burden is upon him who claims that the act is unconstitutional to show its unconstitutionality. Whether the enactment of the law is wise or not, and whether it is the best means to achieve the desired result are matters for the legislature and not for the Court. . . . ” State v. Fantastic Fair, 158 Me. 450, 467, 186 A.2d 352, 363 (1961).

We have examined the few decisions from other jurisdictions which have dealt with these issues.

The concept of collective bargaining between public officials and their municipal employees is of comparatively recent appearance in the courts of this country. Many courts found this concept impossible to reconcile with the long accepted principle that members of the public are entitled to have public service issues determined according to the best judgment of the officials to whom they have entrusted the responsibilities. In most of the jurisdictions where the issue has been litigated it has been held that municipal officers have no right to bargain collectively in the absence of legislation giving them this authority and that when city officials agree to bargain collectively without such legislation they are abdicating the responsibilities reposed in them by the electorate.¹⁷

It appears to be accepted that statutes relating to labor relations in general have uncertain application to the public sector as the courts find that public employees, as servants of the public welfare, occupy a status much different from that of employees engaged in private enterprises.¹⁸

While a number of states have recently enacted legislation to permit collective bargaining in different forms in the public sector, very few cases involving these laws have reached the courts of last resort and judicial concern over loss of governmental responsibility has not disappeared. When collective bargaining is provided by statute, the public officials cannot be said to have abdicated ultimate responsibility- — the legislature has taken it away from them — but the power of the legislature to delegate to private persons discretion to determine issues which are essentially governmental is not free from doubt.

In 1947 the Pennsylvania General Assembly enacted legislation which established grievance procedure under which public employer-employee disputes should be submitted to a mediation board which, after hearing, would make findings and recommendations to local public officials. Such a mediation board heard such a dispute for the Erie firefighters and then recommended that the City Council enact an ordinance creating a pension plan which the mediators found the public interest required.

In Erie Firefighters Local No. 293 v. Gardner, 406 Pa. 395, 178 A.2d 691 (1962) the firefighters had brought mandamus to compel the City Council to take this action. The Court chose to face the constitutional issue by “assuming” that the statute did require the City Council to take the action the mediators recommended. The Court held that, as so construed, the statute was an unconstitutional delegation of legislative discretion to the mediators.

An article in the Pennsylvania Constitution contained this language:

. “ ‘The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.’ ” Erie Firefighters Local No. 293 v. Gardner, supra at 395, 178 A.2d at 695.

The Court recognized that there was, even then, an important current trend toward delegation of power to administrative bodies, but said:

“If the delegation of power is to make the law, which involves a discretion of what the law shall be, then the power is nondelegable. If the conferred authority is the power or discretion to execute the law already determined and circumscribed, then the delegation is unobjectionable. . . . We are of the opinion, therefore, that if the Act of 1947 makes the findings of the panel of conciliators binding upon the city in so far as the creation of municipal ordinances is concerned, then that portion of the Act which so states is unconstitutional and cannot be enforced in this proceeding.” Erie Firefighters Local No. 293 v. Gardner, supra at 395, 178 A.2d at 695.

The State of Wisconsin had one of the first comprehensive municipal labor laws in the nation and Local 1226, Rhinelander City Employee’s v. City of Rhinelander, 35 Wis.2d 209, 151 N.W.2d 30 (1967) is frequently cited as representing a modern judicial attitude as to this problem. Their statute authorized municipalities to enter into labor contracts with representatives of employees. The statute permitted but did not require cities to make binding agreements to submit grievances to arbitration. (Wisconsin had earlier held in a non-labor dispute case that a city may submit to binding arbitration claims arising out of contract.¹⁹)

The City entered into a labor contract in which it agreed to submit grievances to arbitration. Later it refused to arbitrate contending that to be required to do so would be an unlawful infringement upon the legislative power of the City. The Court held that the City, having agreed to arbitrate, could now be forced to carry out its agreement. It is necessary, however, to an appreciation of the Court’s opinion to note that it added, distinguishing between interests arbitration (that is, disputes involved in the making of the labor contract) and grievance arbitration (disputes arising out of employment under a contract which has already been made):

“Yet in all of its arguments the city is talking about arbitration in the collective bargaining context — arbitration to set the terms of a collective bargaining agreement. Such is not this case, which involves arbitration to resolve a grievance arising under an existing agreement to which the city is a party.” Local 1226, Rhinelander City Employee’s v. City of Rhinelander, supra at 220, 151 N.W.2d at 36.

While the acceptance of any collective bargaining in municipal employment affairs doubtless dilutes the absolute discretion which public officials had formerly enjoyed, the issue becomes acutely presented when statutes or charters provide, as an ultimate step, the right of either party to have issues settled by arbitration which is binding upon the municipality.

State of Washington v. Johnson, 46 Wash.2d 114, 278 P.2d 662 (1955) dealt with a “home rule” city charter which provided for binding arbitration between the City and its firefighters concerning working conditions, wages and pensions. The Court found this to be an invalid delegation of public authority and the language of the opinion seems to be representative of the rationale of the majority of courts.

“Can the legislative body abdicate its responsibility and turn it over to a board of arbitrators whose decision will be binding upon the legislative body and the firemen? Clearly it has no legal right to do so. The theory of delegation of authority is that the person or group, to whom authority has been delegated, acts for and as the agent of the person or group delegating such authority. That is not the situation here. Here the council would be stepping out of the picture entirely and the arbitration board would be performing a function which, by law, is the responsibility of the council.” Washington v. Johnson, supra at 121, 278 P.2d at 666.

The absence of a state statute authorizing binding arbitration did not appear to control the Court’s reasoning in Johnson and the same rationale is expressed in Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547 (1962) where the Colorado Court found that another “home rule” charter amendment which authorized city officials to submit municipal labor disputes to binding arbitration constituted an unconstitutional delegation of authority.

In Joint School District No. 8, City of Madison v. Wisconsin Employment Relations Board, 37 Wis.2d 483, 155 N.W.2d 78, 80-81 (1967) the Court examined the language of the Wisconsin statute which provided that “municipal employees shall have ‘ . . the right to be represented by labor organizations of their own choice in conferences and in negotiations with their municipal employers or their representatives on questions of wages, hours, and conditions of employment.’ ” The Court decided that in using this language the legislature intended to distinguish between labor relations in the private sector and those in municipal employment. The statute, it found, required the City only to meet and negotiate and engage in fact finding. It said that, while this might affect a determination of the controversy by moral force, it is not an unlawful delegation of authority because it is not binding on the City. The final determination must still be made by the school board. If the statute required the City to participate in collective bargaining, the Court said, in dicta, it would be a surrendering by the members of the school board of the municipal function entrusted to them.

The constitutionality of a Rhode Island statute known as the Firefighters’ Arbitration Act which provided for collective bargaining including binding arbitration was considered by the Rhode Island Supreme Court in City of Warwick v. Warwick Regular Firemen’s Association, 106 R.I. 109, 256 A.2d 206 (R.I.1969). The Court upheld the principles of the legislature’s propriety of delegation of power to arbitrators in this language:

“We concur in the conclusion of the trial justice that it is within the prerogative of the legislature to vest administrative boards or public bodies or officers with some portion of the legislative power where such action is necessary to give operative effect to the antecedent legislation. We are of the opinion that when the legislature, in an exercise of its lawmaking authority, enacts a statute the purpose of which is to secure to the public some right or benefit, it may delegate to an appropriate agency or officer some residuals of its legislative power in order to permit the selected agent to accomplish the ends contemplated in the original legislation. Of course, this is not to say that the legislature may abdicate its duty to legislate. Where the purposes of the antecedent legislative enactment may be best accomplished through the employment of an agent acting in its stead, the legislature may delegate to that agent a sufficient portion of its power to enable it to make the statute operative.” City of Warwick v. Warwick Regular Firemen’s Association, supra at 208-209.

Following the passage in 1955 of a New Hampshire statute permitting municipalities to “recognize unions of employees and make and enter into collective bargaining contracts with such unions” the City of Berlin entered into a contract with the local union representing the city police. A section in the contract provided for grievance arbitration by an impartial arbitrator to be appointed by the state board of arbitration whose decision was to be final and binding. In Tremblay v. Berlin Police Union, 108 N.H. 416, 237 A.2d 668 (1968), this was attacked as an unlawful delegation of municipal authority. The New Hampshire Court said :

“If that were the end of the matter, it would present a serious question. But, as previously noted, the clause [of the contract] was specifically amended to provide that it ‘shall comply and be subordinate to N.H. State Law’. This amendment subjects the grievance and arbitration procedure to Laws 1963, 275:5 as well as the state arbitration statute (RSA 273:12-27) which contains a provision that a party may give a notice in writing not to be bound by the arbitrator’s decision.” Tremblay v. Berlin Police Union, supra at 421, 237 A.2d at 672.

The contract also contained the Union’s acceptance of the fact that the police department must operate with its budget as set by the city council and that nothing in the arbitration paragraph shall be construed so as to conflict with applicable state laws. The Court concluded that the contract was not an unlawful delegation of the city’s authority to control the police department.²⁰ Thus explained, the opinion constitutes only an approval of legislation permitting municipalities to contract for non-binding grievance arbitration which is not necessarily binding.

While there is a little legal precedent, some of the writers on the subject seem to feel that the problem of delegation is more easily satisfied if the arbitrators themselves are public officials.²¹ It will be remembered that our own statute authorizes the appointment of arbitrators who are private citizens and not in any way responsible to the public although their decisions might affect the quantity, quality and cost of essential public service.

The Rhode Island statute, earlier discussed, authorized a delegation of authority to a board of arbitrators such as our own — one arbitrator to be chosen by the city, one by the union and those two to select the third — whose decisions are to be binding. It was contended in City of Warwick v. Warwick Regular Firemen’s Association, supra, that the statute contemplated an unconstitutional delegation of governmental authority to private individuals but the Court found the delegation to be proper, employing reasoning, however, which appears to be tautological. The Court considered that since the statute provided that the person chosen as arbitrator receives a portion of the sovereign power of the state, that person necessarily becomes a public officer while he is performing these duties.

It appears, then, that most of the cases holding that agreements to submit public employee labor disputes to binding arbitration are invalid attempts to delegate official responsibility come from states that had no legislation authorizing such agreements. On the other hand, serious concern over the problem is apparent in all the decisions and several of those often spoken of as favorable to the position urged here by the Association limit their holdings to grievance arbitration of contracts which municipalities have already entered into. It may be that the Rhode Island statute is the only one imposing upon the municipalities binding arbitration in the areas of both interest and grievance, without specific constitutional authorization, which has been finally upheld. We consider that decisions involving arbitration in essential industries in the private sector such as hospitals and public utilities give us little assistance as to this problem.

With scant solid precedent to guide us, we return to our own situation. We find that our Constitution gave the Legislature full responsibility over the subject matter of public schools and education and empowered it to make all reasonable laws in reference to schools and education for the “benefit of the people of this state”. Opinions of the Justices, 68 Me. 582 (1876). Except for the areas where the Legislature has from time to time seen fit to impose its own requirements and except for the authority later given to the Commissioner of Education, the responsibilities for operating the public schools have remained in the local school boards.

The Legislature has now decided to take from the school boards the ultimate authority they have exercised in certain areas of school management — that is, as to “hours, and working conditions” and contract grievance arbitration — and to give it to ad hoc boards of arbitration.²²

It is settled beyond question that the Legislature may properly conclude that the purposes of its legislation may best be carried out through agents and that it may delegate to the agents a portion of its power to facilitate the functioning of the legislative program. McGary v. Barrows, 156 Me. 250, 163 A.2d 747 (1960); McKenney v. Farnsworth, 121 Me. 450, 118 A. 237 (1922).

There can be no doubt but that the Legislature, which is the source of all municipal authority (Squires v. Inhabitants of City of Augusta, 155 Me. 151, 153 A.2d 80 (1959), has also the power to take back from municipal officers portions of the authority it has earlier given them.

It is clear that the Legislature has recognized that the maintenance of a satisfactory quality of public education requires harmonious relations between school officials and the teaching staffs and that disagreements inevitably arise during the carrying out of their respective responsibilities. The abrasive effect of the existence of unresolved grievances is one of the threats to harmonious relations which the Legislature considers should be removed.

The lawmakers have recognized that policy making decisions should remain in the local officials, responsible to the public, and that while the citizens may properly be subjected to moral suasion as to such matters as wages and pensions, the ultimate determination of such matters with such heavy impact upon — and so limited by— municipal appropriations should be made by local officials.

The Legislature has apparently concluded, on the other hand, that experience has taught that certain aspects of this dynamic and complicated municipal employer-employee relationship no longer need remain subject to arbitrary decision by the employer and that in the area of working conditions and hours and of contract grievances the interests of the employees must in fairness be examined by impartial persons. The Legislature appears to believe that this much can be done without serious disruption of the balancing of operating costs against municipal appropriations.

We realize that in providing that the contract making process itself (as it affects working conditions and hours) is subject to binding arbitration, our Legislature has moved into an area forbidden by many courts. The Legislature must have con-eluded that the benefits which are sought by the statute can never be achieved if an impasse occurs at the very beginning of the relationship. This conclusion is not unreasonable.

True, the statute does not contemplate the delegation of authority to public administrative boards or agencies but instead gives it to ad hoc panels whose memberships are not to be controlled by governmental action. Here we are of the opinion that the Legislature, mindful of the denial to municipal employees of such economic weapons as strikes and work stoppages which are available to employees in private employment, has sought to avoid the disruptive feelings of resentment and bitterness which may result if the governmental employee may look only to the government for redress of his grievances.

Where the ultimate arbiter of the dispute is a representative of one side of the dispute, adverse decisions will be hard to accept and the tendency toward alienation will be strong.²³

We consider that there is a rational reason for the Legislature’s decision that its purposes would be best effectuated if the parties are left to choose their own arbitrators in the limited non-policy areas which are subject to arbitration.

PART II

While we consider that the Legislature may justifiably choose to permit private citizens to exercise the limited portions of its sovereign power (as it concerns teacher-school board labor relations) which we have just discussed, it is well established that a legislative body cannot delegate the legislative power without including in the delegating statute sufficient standards to guide the agents in the exercise of the legislative authority. Small v. Maine Board of Registration and Examination in Optometry, Me., 293 A.2d 786, (1972); Waterville Hotel Corp. v. Board of Zoning- Appeals, Me., 241 A.2d 50 (1968); Opinion of the Justices, 155 Me. 30, 48, 152 A.2d 81 (1959); Local 170, Transport Workers Union of America v. Gadola, 322 Mich. 332, 34 N.W.2d 71 (1948); City of Warwick v. Warwick Regular Firemen’s Association, supra.²⁴

In 1947 the New Jersey Legislature enacted a law which provided for compulsory arbitration of labor disputes in public utilities and authorized ad hoc boards of arbitration chosen much as our own statute provides. The statute contained no statement of criteria to guide and limit the discretion of the arbitrators. The opinion by Chief Justice Vanderbilt said, in part:

“If no standards are set up to guide the administrative agency in the exercise of functions conferred on it by the legislature, the legislation is void as passing beyond the legitimate bounds of delegation of legislative power and as constituting a surrender and abdication to an alien body of a power which the Constitution confers on the Senate and General Assembly alone. Nowhere in this act is there any guide furnished to the board of arbitration other than that it shall arbitrate ‘any and all disputes then existing between the public utility and the employees . . . ’

. . . There is, thus, an even greater need of specific standards than there would be in the case of a continuous administrative body which might gather experience as it went along. . . .

Standards of delegation are peculiarly required, moreover, where the legislature is enacting a new pattern of social conduct . . . ” State v. Traffic Telephone Workers’ Federation of New Jersey, 2 N.J. 335, 66 A.2d 616, 625-626 (1949).²⁵

The extent to which the standards must be detailed must depend upon the nature of the service which the legislative body has determined should be performed by the administrative agency. The need here is to protect both the public and the employee from unnecessary and uncontrolled discretionary power.²⁶

Mr. Justice Wernick’s opinion agrees that even though the present law involves an area of internal governmental employer-employee relationship, the statute delegates to the arbitrators a portion of the police power of the State (to the extent that it empowers the public employer to force binding arbitration upon the teachers against their wills). It also agrees that there are carry-over effects upon the personal and property rights of the citizenry in general. Although that opinion does not agree that standards are constitutionally mandated in this Act, it appears to concede that, because of the presence of those two factors, potential constitutional infirmities could develop if the Act does not reveal a combination of 1) a “primary standard” or “intelligible principle”, and 2) adequate procedural safeguards and opportunity for effective judicial review which can protect the teachers and the public against irresponsible, arbitrary action. That opinion looks for these primary standards and intelligible principles and is satisfied that they can be found in the totality of the Act.

We, on the other hand, consider that the constitutional issue is unavoidably presented now. The question is whether there can be found in the Act sufficient standards — specific or generalized, explicit or implicit- — -to protect the teachers and the public from possible arbitrary and irresponsible exercise of this delegated power by these ad hoc boards of arbitration. We arrive at the conclusion that no such standards can be found.

We do not concede that the fact that the Act has its primary effect upon the internal governmental employer-employee relationship makes the need for standards more easily satisfied. Neither do we find in the Act procedural safeguards or adequate review techniques which could make the need for standards more easily satisfied.

We recognize that in an area such as labor arbitration where a great variety of issues may be expected to be presented and where considerable flexibility is essential, it is not reasonable to require that the arbitrators’ evaluations and options be restricted rigidly.

“It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. ‘If Congress shall lay down by legislative act an intelligible principle . . . such legislative action is not a forbidden delegation of legislative power.’ ” Lichter v. United States, 334 U.S. 742, 785, 68 S.Ct. 1294, 1316, 92 L.Ed. 1694, 1726 (1948).

While it is essential to the success of arbitration that arbitrators deal with each case on its own merits, it is not necessary —or constitutionally possible here — that the legislative body give the arbitrators uncontrolled discretionary power.

We do not agree that the “primary standard” or “intelligible principle” which some of the federal cases have found sufficient in their situations would necessarily satisfy our own constitutional demand for standards in this case. However, we do not believe that even the “primary standard” or “intelligible principle” of which Lichter v. United States, supra and Mr. Justice Wernick’s opinion speak — can be found here from the totality of legislative expression in the several aspects which are discussed in his opinion and on which we wish to comment with full respect to the points of view of our disagreeing colleagues.²⁷

As Mr. Justice Wernick’s opinion indicates, in some jurisdictions it has been found that an Act’s statement of policy furnishes sufficient guidance to assure that the individuals to whom the power has been delegated are not free to exercise unrestricted legislative authority according to their own discretions. Fairview Hospital Ass’n. v. Public Building Service and Hospital and Institutional Employees Union Local No. 113, 241 Minn. 523, 64 N.W.2d 16 (1954). This Act’s stated purpose is to promote improvement in the relationship between the public employer and employee by providing adequate machinery for the employers and representatives of the employees to use in settlement of their disagreements. It is the Legislature’s aspiration that the availability and use of this new collective bargaining machinery will result in a more harmonious employer-employee relationship but this purpose can hardly be considered as a meaningful criterion for the arbitrators’ determination, issue by issue, of the individual subject matters before them.

In Kovak v. Licensing Board, City of Waterville, 157 Me. 411, 173 A.2d 554 (1961) we ourselves found to be constitutional a statute which authorized a municipal licensing board to revoke a victualer’s license when it is “satisfied that the licensee is unfit to hold the license”. The Court found that the need for adequate criteria to guide the Board in such determinations — although absent in the section which authorized revocation — was found in several separate but related sections of the same chapter which mandated certain specific good conduct on the part of victualed. We are unable to discern any such related legislation here which supplies the need for standards which the Kovak Court recognized to be required.

We agree that the Legislature contemplated that these private individuals to whom it has given such authority over the functioning of public education would act fairly and reasonably. Unquestionably, a similar expectation is implicit in every statute which delegates power to administrative bodies. The unspoken demand for integrity is, of course, a standard for the arbitrators’ conduct, but it does not furnish the crucial criteria to guide the arbitrators as to what factors should be given consideration in their examination of the issues presented to them.

While we share our disagreeing colleagues’ expectations that when the issues reach the arbitrators they will have been sharply delineated by the preliminary procedures of collective bargaining — a probable contribution to the efficiency of the arbitration process — this cannot obviate the need for standards. The arbitrators are still left to act upon these issues with undirected and unlimited discretion.

We cannot agree with Mr. Justice Wer-nick’s opinion that the Act’s exclusion of educational policies from consideration by negotiators, fact finders and arbitrators— or its limiting the arbitrators’ authority as to salaries, pensions and insurance to recommendations and fact finding — constitute an indication of legislative purpose which can be considered a criteria to guide the arbitrators in their determinations in areas outside the excluded portions. We cannot so construe it. The exclusion of educational policies, salaries, pensions and insurance from binding arbitration only defines the boundaries of the area in which the arbitrators may act with binding effect — to wit, the area of working conditions and hours — without indicating the factors the arbitrators should consider as entering into their decisions concerning working conditions and hours.

We have considered Mr. Justice Wer-nick’s opinion’s reference to the last paragraph in section 965(1) which reads:

“Whenever wages, rates of pay or any other matter requiring appropriation of money by any municipality are included as a matter of collective bargaining conducted pursuant to this chapter, it is the obligation of the bargaining agent to serve written notice of request for collective bargaining on the public employer at least 120 days before the conclusion of the current fiscal operating budget.”

We construe’ this paragraph as requiring a timely caveat whenever a future bargaining agreement by the parties or a binding award by the arbitrators may necessitate an increased or additional appropriation so that the municipality may anticipate it in the next municipal budget. The language falls short of being a directive to the arbitrators that they are to give consideration to the municipality’s ability to meet the cost of the award in view of its other obligations and responsibilities.

While it is apparent that the draftsmen of the Act took care to omit from this legislation many elements which have given other courts their greatest concern, we consider that the absence from the Act of any standards to guide and limit the arbitrators invalidates the Act as far as its applicability to binding arbitration of labor disputes in the public school area is concerned.

There are many features of the bill the cumulative effect of which appear to us especially to demand that the Legislature include standards which will effectuate the carrying out of its purposes. The Act distinguishes between the arbitrators’ authority as to disputes involving educational policy and those concerned with working conditions but neither educational policy nor working conditions is defined by the Act. Also, the Act provides the arbitrators with no criteria for dealing with the likely situations where a single decision may bear with substantial importance upon both educational policies and working conditions. The arbitrators are not public officials and are not required to answer to the electorate or to the elected representatives of the electorate. They are completely free to determine issues by the application of their own political, social or economic theories. They will not be members of a permanent panel but will be chosen on a case by case basis which militates against an accumulation of experience and their development of standards. The Act specifies that the third arbitrator shall be “neutral” and strongly suggests a legislative intention that the two arbitrators chosen by the parties may be partisan advocates, following a practice prevailing in labor arbitration in the private sector. Thus the discretion being delegated may, in fact, be reposed in one private individual who may not even be a resident of the State.

This Act — unlike those in some other states — does not provide that the arbitrators’ award is to be subject to existing statutory restrictions in the educational field, to existing or future appropriations or to proper orders of the Commissioner of Education. Although decisions in this area of disputes can have serious impacts upon the public interest in general, the quality of education and a municipality’s ability to meet its other serious responsibilities, the arbitrators are left completely free to ignore these factors and to use whatever criteria they choose for their final determinations.

Although provision is made for review by the Superior Court on questions of law, the arbitration panels’ determinations as to questions of fact are final, in the absence of fraud. There is no requirement that the arbitrators make findings of fact, even as to matters in which their determinations are final and binding, which seriously limits the ability of the courts on appeal to protect against unbridled discretion.

Finally, the arbitrators — like those discussed by Chief Justice Vanderbilt in Traffic Telephone Workers’ Federation of New Jersey — would be putting into operation a pattern of social conduct which is entirely new to us.

We do not suggest that all of these elements must — or can profitably — be the subject of specific standards. Rather, we say that, in total, they emphasize the need for standards here. The Constitution has specifically reposed in the Legislature full responsibility over the conduct of public school education for the “benefit of the people of this state” ²⁸ and the Legislature has chosen to delegate a final responsibility in the important area of hours and working conditions. It has done so, however, without any clear indication as to what factors the arbitrators must consider in making these final decisions.

We hold that the Legislature’s attempt to delegate to arbitrators binding determination of labor disputes between teachers and their public employers is void for lack of adequate standards.

We are satisfied that the provisions of the Act concerning arbitration are sev-erable from the remainder of the statute and we find no constitutional infirmity in the Legislature’s imposing upon teachers and their public employers the other obligations of collective bargaining found in the Act.²⁹

The Court being equally divided on the question of constitutionality, but being in unanimous agreement that the Arbitrators exceeded their statutory jurisdiction in their determination as to “Class size”, “Length of a Teacher’s Working Day” and “Scheduling and Length of School Vacations and of the Commencement of the School Year”, the cases are ordered remanded to the Superior Court for action:

1) In Docket No. 2688-71, City of Biddeford by its Board of Education v. Biddeford Teachers Association, et als., the decision of the arbitration panel of November 17, 1971 is to be modified by striking therefrom the determinations concerning “Class size”, “Length of a Teacher’s Working Day” and “Scheduling and Length of School Vacations and of the Commencement of the School Year”.

After such modification, the Superior Court should enter

Judgment affirming the decision of the arbitration panel, as modified.

2) In Docket No. 2690-71, Biddeford Teachers Association v. Board of Education of the City of Biddeford, et als., the case, as remanded, is to await the entry of judgment in case No. 2688-71. Thereafter, the Superior Court shall proceed in such manner as the subsequent conduct of the parties might make necessary or appropriate.

1 . The parties had succeeded in. negotiating a contract for the year 1970-1971.

2 . The Act prohibits public employees from engaging in a strike, work stoppage, slowdown or blacklisting.

3 . We consider that a printing error doubtless distorted the legislative language here and that the phrase “for the purpose of this paragraph” was intended to be the beginning of a separate sentence.

4 .Within the areas covered by the Act either party is entitled to require the other to participate in both interest arbitration (that is, concerning disputes involved in the making of the employment contract) and grievance arbitration (concerning disputes arising out of employment under the contract).

5 . “Sec. 1. Be it enacted by the Senate and House of Representatives, in Legislature assembled, That every town and plantation shall annually raise and expend for the maintenance and support of schools therein, to be taught by school masters duly qualified, a sum of money including the income of any incorporated school fund not less than forty cents for each inhabitant, the number to be computed according to the next preceding census of the State by which the representation thereof has been apportioned: Provided, That a part, not exceeding one third of the money allotted to any district, may, if the district so determine, be applied to the support of a school taught by a mistress, or when the sum so allotted to a district in any year, shall not exceed thirty five dollars, the whole may be expended in the same manner.”

6 . “Sec. 3. Be it further enacted, That there shall be chosen by ballot at the annual meeting, in each town and plantation, a superintending school committee, consisting of not less than three nor more than seven persons, whose duty it shall be, to examine school masters, and mistresses, proposing to teach school therein. And

it shall be the duty of such committee to visit and inspect the schools in their respective towns and plantations, and inquire into the regulations and discipline thereof, and the proficiency of the scholars therein, and use their influence and best endeavours, that the youth in the several districts regularly attend the schools; and the said committee shall have the power to dismiss any school master or mistress who shall be found incapable, or unfit to teach any school, notwithstanding their having procured the requisite certificates; but the towns and plantations shall be bound to pay such instructors for the time they have been employed; and the superintending committee shall have power to direct what school books shall be used in the respective schools; and at the meeting for the choice of town officers, there shall be chosen an agent for each school district, whose duty it shall be, to hire the school masters, or mistresses for their respective districts, and to provide the necessary fuel and utensils for the schools.

7 .During the early history of our state, our statutes permitted areas within a town or areas composed of parts of two or more towns to form semi-autonomous school districts and to choose school agents and share with the town superintending school committees the responsibility for maintenance of the public schools. See, for example, R.S.1871, Chap. 11, §§ 16-51. For a time, towns were permitted to elect a supervisor of schools in lieu of a superintending school committee. R.S.1871, Chap. 11, § 10. P.L.1897, Chap. 332, § 1 first required superintending school committees to choose or towns to elect superintendents of schools who succeeded to some administrative duties formerly performed by the superintending school committees.

For a brief period — 1871 to 1872 — our statutes directed the Governor to appoint for each county a county supervisor to public schools who “shall act as the official advisor and constant assistant to the school officers and teachers in his county. R.S.1871, Chap. 11, §§ 75-80. This office was abolished by P.L.1872, Chap. 67.

8 .The members of the Superintending School Committee are elected officials (20 M.R.S.A. § 471) and their statutory duties include (20 M.R.S.A. § 473) :

“1. Management of schools. The management of the schools and the custody and care ... of all school property in their administrative units

2. General course of instruction; textbooks. [They shall] [djirect the general course of instruction and approve a uniform system of textbooks

They employ the Superintendent of Schools (20 M.R.S.A. § 155) and approve or disapprove of his nomination of teachers. 20 M.R.S.A. § 161(5). They may, after notice and hearing, dismiss a teacher for unfitness. 20 M.R.S.A. § 473(4). Although we have spoken in terms of powers of the superintending school committees, the same principles apply as to directors of School Administrative Districts (20 M.R.S.A. § 219), to committees of supervisory unions (20 M.R.S.A. § 153) and to community school committees. 20 M.R.S.A. § 356.

9 . Now 20 M.R.S.A. § 801.

10 . Now 20 M.R.S.A. § 855.

11 . Now 20 M.R.S.A. § 473(3).

12 . Now 20 MR.S.A. § 1011.

13 . Now 20 M.R.S.A. § 1131.

14 . P.L.1868, Chap. 221, § 3(1).

15 . 20 M.R.S.A. § 101; P.L.1971, Chap. 492. P.L.1971, Special Session 1972, Chap. 610 changed his title to Commissioner of Education and Cultural Services.

16 . “1. General supervision. To exercise a general supervision of all the public schools and to advise and direct the town committees and superintendents in the discharge of their duties, by circular letters and personal conference, devoting all his time to the duties of his office; 7. Studies to be taught. To prescribe the studies to be taught in the public schools and in private schools approved for attendance and tuition purposes, reserving to superintending school committees, trustees or other officers in charge of such public or private schools . the course of study prescribed by the commissioner shall be followed in all public schools and in all private schools approved by the said commissioner for attendance or tuition purposes. Upon the approval by the said commissioner of any course arranged by the superintending school committee of any town, or by the trustees or other officers of any private school, said course shall be the authorized course for said town or private school. . . . ”

17 . State Board of Regents v. United Packing House Food and Allied Workers, Local No. 1258, 175 N.W.2d 110 (Iowa 1970) ; In Re Richfield Federation of Teachers, 263 Minn. 21, 115 N.W.2d 682 (1962) ; City of Fort Smith v. Arkansas State Council No. 38, 245 Ark. 409, 433 S.W.2d 153 (1968) ; Norwalk Teachers’ Ass’n. v. Board of Ed., 138 Conn. 269, 83 A.2d 482 (1951).

18 . City of Manchester v. Manchester Teachers Guild, 100 N.H. 507, 131 A.2d 59 (1957) ; Wichita Public Schools Employees Union, Local No. 513 v. Smith, 194 Kan. 2, 397 P.2d 357 (1964).

19 . City of Madison v. Frank Lloyd Wright Foundation, 20 Wis.2d 361, 122 N.W.2d 400 (1963).

20 . Our Legislature enacted a Fire Fighters’ Arbitration Law in 1965 (26 M.R.S.A. §§ 980-992) which provided for binding arbitration, both interests and grievance. It was repealed simultaneously with the enactment of the Act now under consideration. P.L.1969, Chap. 424, § 2. This Court was called upon to interpret the arbitration features of the law in Itock-lamí Professional Fire Fighters Ass’n v. City of Rockland, Me., 261 A.2d 418 (1970) but the issue of its constitutionality was not raised.

21 . Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Tale L.J. 805 (1970) ; Comment in 68 Mich.L.Rev. 260, 284 (1969). For example, a Nebraska statute allows submission of public' labor disputes to a Court of Industrial Relations. Nebraska Public Laws 19G5, Chap. 390.

22 . It will be remembered that the school boards are required only to consult as to educational policy, that the arbitrators may only recommend terms of settlement in controversies over salaries, pensions and insurance and that school boards’ power to comply with the arbitrators’ awards in matters that are subject to binding arbitration is limited by other existing statutory enactments and orders of the Commissioner of Education.

23 . James M. Ringer, Legality and Propriety of Agreements to Arbitrate Major and Minor Disputes in Public Employment, 54 Cornell L.Rev. 129 (1968).

24 .As an apparent response to the decision in Erie Firefighters (earlier discussed), a constitutional amendment was presented to and passed by the electorate which specifically authorized the delegation to panels or commissions of the authority to determine municipal labor disputes.

The legislature then enacted a statute which authorized collective bargaining between policemen and firemen and their public employers, culminating, when the parties have bargained to an impasse, in binding arbitration. City policemen then brought mandamus to compel the Borough Council to enact legislation to carry out the arbitrators’ award. The City objected that the statute provided no standards. The Court held that the new constitutional amendment obviated the need for standards which the Court had on earlier occasions held are demanded if legislative power is to be delegated. The Pennsylvania Court added that even if the constitutional amendment did not apply, the statute revealed a legislative purpose to protect the public from strikes by policemen and firemen which furnished sufficient standards and that a more explicit exjjression of legislative policy in a statute providing for labor arbitration would be “folly”. Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969).

25 . The succeeding legislature enacted a new statute with standards which the New Jersey Supreme Court, in a new case, found to be adequate. New Jersey Bell Tel. Co. v. Communications Workers of America, New Jersey Traffic Division No. 55, 5 N.J. 354, 75 A.2d 721 (1950).

26 . Theodore W. Kheel, Strikes and Public Employment, 67 Mich.L.Rev. 931 (1909) ; Kenneth Culp Davis, Administrative Law Treatise, §§ 2.11-2.14.

27 . Note, Maine’s Public Labor Law, 24 Maine L.Rev. 73 (1972).

28 . Opinions of the Justices, 68 Me. 582 (1876), supra.

29 . Our holding is confined to the particular situation of teachers under the Act. We do not intend to suggest any opinion as to the validity of the Act as applied to other public employees.