Wicomico County Education Ass'n v. Board of Education

477 A.2d 279, 59 Md. App. 564, 1984 Md. App. LEXIS 386
CourtCourt of Special Appeals of Maryland
DecidedJuly 12, 1984
DocketNo. 205
StatusPublished
Cited by2 cases

This text of 477 A.2d 279 (Wicomico County Education Ass'n v. Board of Education) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wicomico County Education Ass'n v. Board of Education, 477 A.2d 279, 59 Md. App. 564, 1984 Md. App. LEXIS 386 (Md. Ct. App. 1984).

Opinion

GILBERT, Chief Judge.

Arbitration is to the law what the shortcut is to the traveller, the most direct route to the objective. Yet, the arbitration, as well as the shortcut, may turn out not to be the cheapest way. Because of the economy of arbitration, not all of the judicial safeguards are automatically built into that system. This is one of those cases where the economy has proven costly.

The record before us reveals that Earl A. Reddish is a certified professional teacher and a member of the Wicomico County Education Association, Inc. (WCEA). He is employed by the Board of Education of Wicomico County, but he is not a member of the Wicomico Senior High School faculty. WCEA is the collective bargaining agent for teachers employed by the Board of Education for Wicomico County (Board). On December 3, 1982, Reddish and WCEA initiated a grievance under the collective bargaining agreement.

Reddish and WCEA asserted that Reddish had applied unsuccessfully to the Board for the position of head coach of the Wicomico Senior High School baseball team for the 1982-1983 school year. The Board, notwithstanding a provision in the collective bargaining agreement that a teacher shall not be given a third coaching assignment if an “acceptable alternative” is available, nevertheless appointed a Mr. Waller to a third coaching position.

Pursuant to the collective bargaining agreement, an arbitrator was selected to decide the validity vel non of the grievance. After hearing evidence, the arbitrator determined that Reddish and a Mr. Webster were qualified applicants for the coaching position, and that the Board’s action in naming Mr. Waller to a third coaching position [566]*566violated the collective bargaining agreement. The arbitrator directed that the Board give “full and fair consideration to all” qualified applicants. Since the arbitrator found that both Webster and Reddish were qualified for the position, he declined to install Reddish as the coach of the team.

Unhappy with winning but half a loaf, Reddish and WCEA petitioned the Circuit Court for Wicomico County to vacate the arbitration award in part or, alternatively, to correct or modify, in part, the arbitrator’s award. In the petition Reddish and WCEA averred, among other things:

“That neither the Board nor WCEA presented any evidence that anyone other than Grievant [Reddish] applied for the position of head varsity baseball coach at Wicomico Senior High School for the 1982-83 school year. The evidence before the Arbitrator was that the Grievant was the only applicant for said position.”

Additionally, the petitioners suggested that the arbitrator would have granted to Reddish retroactive relief, in the form of installing him as coach as well as awarding him back pay, had the arbitrator not erroneously concluded that Webster had also applied for the position.

The petitioners asked that the part of the arbitration award concerned with there being more than one applicant be modified or vacated. The matter was put to the court with the request: 1) that it vacate a portion of the award and remand to the arbitrator “for a rehearing and redetermination of the remedy to be granted”; or 2) that it modify or correct the arbitrator’s factual finding and direct the Board to appoint Reddish as coach.

The Board answered by denying that there was no testimony that anyone other than Reddish had applied for the job. The denial strongly implied that Webster was an applicant for the coaching position. Furthermore, the Board noted that no transcript was made of the testimony heard before the arbitrator. In addition, the Board by a separate writing moved to dismiss the Reddish and WCEA petition.

[567]*567When the matter was heard on the motion, counsel for Reddish and WCEA urged that the motion should be treated as a demurrer. The court agreed and sustained the demurrer without leave to amend.

We think the motion should not have been treated as a demurrer but rather as a motion for summary judgment. See Southern Md. Hosp. v. Edw. M. Crough, Inc., 48 Md.App. 401, 402, 427 A.2d 1051 (1981); O-S Corp. v. Samuel A. Kroll, Inc., 29 Md.App. 406, 410, 348 A.2d 870 (1975). Although it is true that there were factual disputes concerning the happenings before the arbitrator, there is no dispute to the fact that a transcript was lacking. Thus, absent a de novo trial, the court was unable to resolve the factual disputes upon which the petition was based.

The appellants urge us to hold that in the particular circumstances of this case the court should have taken testimony relative to whether the evidence before the arbitrator did in fact establish that there was more than one applicant. What Reddish and WCEA actually desire is a partial hearing de novo.

Md.Cts. & Jud.Proc.Code Ann. § 3-220(b) provides:

“The arbitrator may, and on application of a party shall, order that part or all of the proceedings be transcribed. The record made from the transcript shall be available to other sides for purpose of appeal or otherwise.”

Patently, Reddish and WCEA could have had a transcript made of the arbitration proceeding. Because they voluntarily did not order a transcript of that hearing, they now seek to have the court rehear that which the arbitrator heard. Their failure to order the transcript may not be converted into their advantage, i.e., a de novo hearing where the judge hears anew the testimony and assesses his evaluation of the credibility of the witnesses rather than relying upon that of the arbitrator. Cf Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 384 A.2d 737 (1978). Were the law otherwise, the arbitration would be but a first airing of the [568]*568evidence, a prelude to trial, instead of the termination of the evidentiary phase of the dispute.

Reddish and WCEA on oral argument of the matter sub judice, explained that a transcript was not ordered because of the expense. That savings is in the instant case a false economy. In today’s electronically operated world, the cost of taping an arbitration proceeding is most certainly not prohibitive. If a tape is made of the proceeding, a transcript when required may be subsequently prepared. Had a tape been made in the instant case, the problem dogging Reddish and WCEA would not have arisen.

Even if the arbitrator erred in his factfinding, the circumstances under which an arbitration award may be set aside are limited. Courts Art. § 3-224(b) provides:

“The court shall vacate an award if:
(1) An award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;

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Bluebook (online)
477 A.2d 279, 59 Md. App. 564, 1984 Md. App. LEXIS 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wicomico-county-education-assn-v-board-of-education-mdctspecapp-1984.