Power to Adopt Policy Providing Binding Arbitration of Employee Grievances

Subject:

Requested By: George T. Rogister, Jr., Attorney Wake County Board of Education

Question: Does a local board of education have the power to adopt a policy providing for binding arbitration of employee grievances?

Conclusion: No.

The Wake County Association of Classroom Teachers has asked the Wake County Board of Education to amend its rules and regulations to provide for arbitration of employee grievances. A copy of this proposal has been provided to us. Under this proposal, the term "grievance" is essentially defined to include any employee complaint about any matter which the Board has authority to address, unless procedures for disposition of the complaint are prescribed by law. In the event any employee grievance cannot be resolved internally, the employee is provided the right under this proposal to have his grievance submitted to an outside arbitrator – agreed to by the parties or selected by the American Arbitration Association – final and binding resolution.

On behalf of the Wake County Board of Education, you ask whether the Board has authority to adopt this proposal from the Classroom Teachers Association. In our opinion, the Board would be acting unlawfully and beyond its authority if it accepts this proposal. We have based this conclusion on three separate grounds.

First, the Wake County Board of Education is charged by the General Assembly with responsibility for "general control and supervision of all matters pertaining to the public schools" in Wake County. N.C.G.S. § 115C-36 and 40. This charge includes ultimate responsibility for and control over all employees of the Board. Article 18, Chapter 115C of the North Carolina General Statutes. For the Board to adopt a policy providing for binding arbitration of complaints by employees would in effect constitute an abdication of its statutory responsibilities and the delegation of those responsibilities in the particular circumstance to a private person or organization. Our research reveals that courts have uniformly held that governmental agencies do not have authority to adopt regulations providing for binding arbitration of complaints by employees would in effect constitute an abdication of its statutory responsibilities and the delegation of those responsibilities in the particular circumstance to a private person or organization. Our research reveals that courts have uniformly held that governmental agencies do not have authority to adopt regulations providing for binding arbitration of employee grievances absent express legislative authority. See Maryland Classified Employees Association v.

Anderson, 380 A.2d 1032, 1039 (M.D.(1977); Cohoes City School District v. Cohoes Teachers Association, 358 N.E. 2d 878 (N.Y. 1976); Wesclin Education Association v. Board of Education, 331 N.E.2d 335, 341 (Ill. 1975); and City of Fort Smith v. Arkansas State Council, 433 S.W. 2d 153 (Ark. 1968). The reasoning underlying these decisions was succintly set forth by the Colorado Supreme Court in Fellows v. Latronica, 377 P. 2d 547, 550 (Colo. 1962).

(T)he employer-employee relationship in government is a legislative matter which may not be delegated. Such (actions) if permitted to stand would result in taking away from a municipality its legislative power to control its employees and vest such control in an unelected and uncontrolled private organization.

The General Assembly has not conferred authority upon local boards of education to permit binding arbitration of employee grievances. Accordingly, the Board has no power to permit binding arbitration. See Koontz v. Winston-Salem, 280 N.C. 513, 520, 186 S.W. 2d 879 (1972).

Second, the issue of whether binding arbitration of employee grievances should be permitted is an issue involving significant public policy considerations. See, e.g., Dearborn Fire Fight v. City of Dearborn, 232 N.W. 2d 226 (Mich. 1975). The authority to determine whether binding arbitration of public employee grievances will be permitted is a policy issue which, in our opinion, rests exclusively with the General Assembly and which the General Assembly may not delegate to any governmental agency. Coastal Highway v. Turnpike Authority, 237 N.C. 52, 63, 74 S.E. 2d 310 (1953); Hospital v. Davis, 292 N.C. 147, 158, 232 S.E. 2d 698 (1977).

Third, governmental agencies may not promulgate rules and regulations contrary to statutory provisions. States Rights Democratic Party v. State Board of Election, 229 N.C. 179, 187, 49

S.E. 2d 375 (1948); North Carolina Utilities Commission v. Atlantic Coastline Railroad, 224

N.C. 293, 289, 29 S.E. 2d 912 (1944). The General Assembly has adopted legislation conferring upon school employees the right to appeal "from the decision of all school personnel" to the local board of education and directing local boards to "act" upon such appeals. N.C.G.S. § 115C-45(c). This statute, in our opinion, contemplates final action by a local board. While the binding arbitration proposal before the Wake County Board of Education would not eliminate appeals of grievances to the Board, it would eliminate the authority of the Board to act finally upon such appeals. Thus, we believe a binding arbitration regulation would be contrary to N.C.G.S. § 115C45(c) and void.

Rufus L. Edmisten Attorney General

Edwin M. Speas, Jr. Special Deputy Attorney General