On May 10, 2018, the Westbrook School Department filed a 
prohibited practice complaint alleging that the Westbrook 
Education Association failed to "negotiate in good faith with 
respect to wages, hours, working conditions and contract 
grievance arbitration," the mandatory subjects of bargaining, 
thereby violating §964(2)(C) and (E) of the Municipal Public 
Employees Labor Relations Act.  26 M.R.S. §961 et seq. (the 
"Act").  The School Department contends that nine of the issues 
the Association presented to the fact-finding panel are not 
mandatory subjects of bargaining, while the Association asserts 
that the proposals are mandatory subjects of bargaining.  It is 
well established that insistence on non-mandatory subjects 
beyond the convening of fact finding is a failure to bargain in 
good faith as required by §965(1)(C) and (1)(E).  SAD #22 Non-
Teachers Ass'n v. SAD #22 Bd. Of Dir., No. 79-32 at 8 (July 30, 
1979).  The Complainant has requested an expedited hearing on 
this matter as a second day of fact finding is scheduled for 
June 8, 2018.  As a remedy, the School Department asks the Board 
to "order the Association to withdraw all proposals involving 


[end of page 1]


non-negotiable matters of educational policy and all other non-
mandatory proposals from its list of issues in controversy 
before the fact finding panel."

     In order to address this complaint in a timely manner, the 
parties agreed that the facts set forth in paragraphs 17 through 
23 of the complaint are admitted and that the recitation of the 
Association's proposals in paragraph 19, sub-paragraphs (a) 
through (i) is accurate.  As directed by the Executive Director, 
the parties submitted written argument addressing the 
negotiability of each proposal separately.  The parties were 
also permitted to submit reply briefs, the last of which was 
filed on May 21, 2018.  Tom Trenholm, Esq., and Connor Schratz, 
Esq., represented the Westbrook School Department throughout 
this proceeding, while Gregory Hannaford represented the 
Westbrook Education Association.  The Board met to deliberate 
this matter on May 24, 2018.


                           JURISDICTION

     The Westbrook School Department is a public employer within 
the meaning of 26 M.R.S. §962(7) and the Westbrook Education 
Association/MEA/NEA is a bargaining agent within the meaning of 
26 M.R.S. §962(2) at all times relevant to this complaint.  The 
jurisdiction of the Board to render a decision and order lies in 
26 M.R.S. §968(5).  


                               FACTS

     The parties agree that the following facts, as set forth and 
numbered in the complaint, are admitted:

17. On May 1, 2018, the parties submitted their prehearing 
    briefs to the fact finding panel.



[end of page 2]


18. The Association's brief included proposals that Attorney 
    Trenholm had identified as being non-mandatory subjects of 
    bargaining.

19. The proposals are listed below:

  a. Article 6 (B): If the normal teacher work day is extended 
     due to changes in the student day, extension of hours, 
     and/or additional assigned work outside of the teacher's 
     typical duties as required by school administration, then 
     each impacted teacher shall have added to their salary the 
     dollar amount equal to the rate of 1/7 of his/her per diem 
     rate. It is understood that the typical teacher duties 
     include being available to help students outside of the 
     school day as needed would not be subject to this 
     provision. This time is based on the reasonable judgment of 
     teachers.

  b. Article 6(D)(1): Teachers will be provided with planning 
     time based on school and class schedule. Every effort will 
     be made to develop a schedule that includes approximately 
     45 minutes a day or 225 minutes per week of preparation
     time in an equitable/fair manner. Dailey preparation times 
     will be the norm [sic]. Administrators shall not interrupt 

     this time except for emergencies. Teachers will normally be 
     provided with a minimum of 225 minutes of preparatory time 
     each full school week (this minimum is calculated by 
     multiplying 45 minutes times five days in the regular work 
     week). If an impacted teacher has less than the equivalent 
     of one (1) 45 minute preparation period per day, he/she 
     shall have added to their salary the dollar equal to the 
     rate of 1/7 of his/her per diem rate.

  c. Article 8(A):  The Administration and supervising officials 
     will make a reasonable effort to equalize the teaching 
     loads and minimize the number of preparations. Middle
     School and High School teachers who are required to teach 
     more than two (2) preps within a single subject area (i.e. 
     biology, chemistry, physics, natural sciences) shall each 
     receive an additional ten (10) days of per diem for each 


[end of page 3]

  
     additional prep to compensate for the additional 
     preparation and work required for such assignment.

  d. Article 9(A): The Administration and supervising officials 
     will make a reasonable effort to equalize class size and 
     case load, taking into consideration such factors as age of 
     student, mode of instruction, and subject taught, where 
     applicable. Teachers who have more than 15 students 
     Kindergarten or 18 students in first through twelfth grade 
     in any class shall receive one seventh (1/7) his/her per 
     diem rate for class to compensate for the additional 
     workload.

  e. Article 9(B): Specialists who have more than an 18 student 
     caseloads shall receive one seventh (1/7) his/her per diem 
     rate for each additional student assigned to compensate for 
     the additional workload.

  f. Article 13(C): The use of regular teachers as substitute
     level, if a teacher has to substitute for a specialist, 
     said teacher shall be provided an equal amount of time as 
     soon as possible by the principal to be used as planning 
     time compensated at the rate of 1/7 of their per diem rate. 
     Under all other circumstances, if teachers covered by this 
     Agreement are used as substitutes for at least one full 
     period, said teachers shall be compensated at the rate of 
     1/7 of their per diem.

  g. Article 15(F): Pursuant to Title 20-A, Chapter 508, 
     evaluations conducted and effectiveness ratings resulting      
     implementation under Chapter 508 shall be performed in good 
     faith and shall be consistent with the Teacher Evaluation 
     and Professional Growth system developed by the initial 
     group of Stakeholders and adopted by the Board.

  h. Article 15(G): Teachers of Record for students who are 
     taught by other personnel directed by the district shall 
     not be held responsible for any educational impact on the 
     students. Furthermore, date or evidence based on student 


[end of page 4]


     performance from this class or classes shall not factor 
     into the evaluation of the Teacher of Record.

  i. Article 17(F)(3): Any employee whose religious affiliation 
     requires the observation of holidays other than those 
     scheduled in the school calendar shall be excused with pay 
     by the supervisor.

                             DISCUSSION

     Section 965 of the Act establishes the parties' mutual 
obligation to bargain, which includes the mutual obligation to      
participate in good faith in the impasse-resolution procedures 
of mediation, fact finding and interest arbitration.  Section      
965, subsection (1) defines collective bargaining in five 
paragraphs.  Paragraph (C),[fn]1 at the heart of this case,      
establishes the mutual obligation:

    C. To confer and negotiate in good faith with respect 
    to wages, hours, working conditions and contract 
    grievance arbitration, except that by such obligation 
    neither party may be compelled to agree to a proposal 
    or be required to make a concession and except that 
    public employers of teachers shall meet and consult but 
    not negotiate with respect to educational policies; for      
    the purpose of this paragraph, educational policies 
    contract grievance arbitration;
    (emphasis added)

     The School Department contends that most of the 
Association proposals at issue are non-negotiable because 
they are matters of educational policy; for one proposal, 
the School Department argues that the proposal is not a 


[fn] 1 Section 965(1)(E) is also implicated, as it requires both parties "To
participate in good faith in the mediation, fact-finding and arbitration
proedures required by §965."  Paragraphs A, B and D require the parties to
meet at reasonable times, to meet within 10 days of a written request to
bargain, and to execute in writing any agreements.


[end of page 5]


mandatory subject of bargaining because it would be 
unconstitutional if implemented.

    Before embarking on the task of determining whether the 
proposals are non-mandatory subjects of bargaining, we note 
the following:

    * The Board's job is to determine whether the conduct 
      at issue constitutes a violation of the Act.  Our 
      rulings on each proposal are strictly legal 
      conclusions and do not reflect any judgment on the 
      merits of the proposal.  See, e.g., Mt. Abrams        
      Teachers Ass'n v. MSAD No. 58, No. 15-09 at 23 
      (July 29, 2015).

    * Section 965(1)(C) requires the parties "to confer and 
      negotiate in good faith [. . . ] except that by such 
      obligation neither party may be compelled to agree to 
      a proposal or be required to make a concession." 

    * In 1997, the Law Court held that because 965(1)(C) 
      expressly states that "public employers of teachers 
      shall meet and consult but not negotiate with respect 
      to educational policies", "it prohibits the school 
      district from negotiating with teachers about 
      educational policy" and, accordingly, "educational 
      policy decisions are not subject to the grievance and        
      arbitration procedure". SAD No. 58 v. Mount Abram 
      Teachers Ass'n, 1997 ME 219 ¶5, 704 A.2d 349, 352; 
      accord, RSU No. 5 v. Coastal Education Ass'n, 2015 ME 
      98, ¶18.

    * Inclusion of a non-mandatory or non-negotiable 
      subject of bargaining in a collective bargaining 
      agreement does not make it a mandatory subject of 
      bargaining.  See, e.g., SAD #22 Non-Teachers Ass'n, 
      No. 79-22 at 7; Sanford Fed. of Teachers v. Sanford 
      School Committee, No. 84-13 at 6 (March 20, 1984).


[end of page 6]


     With these statutory conditions in mind, we conclude that 
the Association has violated the Act by refusing to remove from 
the "issues in controversy" submitted to the fact-finding panel 
certain proposals that are matters of educational policy and 
therefore non-negotiable.  

     Our conclusion with respect to each provision objected to by 
the School Department is addressed below in the order presented 
in the complaint: 

ITEM #1.
	
  Article 6 (B): If the normal teacher work day is extended due 
  to changes in the student day, extension of hours, and/or    
  additional assigned work outside of the teacher's typical 
  duties as required by school administration, then each 
  impacted teacher shall have added to their salary the dollar 
  amount equal to the rate of 1/7 of his/her per diem rate. It 
  is understood that the typical teacher duties include being 
  available to help students outside of the school day as needed 
  would not be subject to this provision. This time is based on 
  the reasonable judgment of teachers. [Complaint Par. 19(a).]

The proposed Article 6(B) includes matters of educational policy 
and the Association's refusal to remove this proposal from the 
list of issues in controversy submitted to the fact-finding 
panel constitutes a refusal to bargain.  SAD #22 Non-Teachers 
Ass'n, No. 79-32 at 8 (to insist on a non-mandatory subject of 
bargaining is equivalent to refusing to bargain about mandatory 
subjects.) 

    The teacher work day is a matter of educational policy.[fn]2  
City of Biddeford Bd. of Educ. v. Biddeford Teachers Ass'n, 304 A.2d 387, 414 at 420 (Me. 1973) (Wernick, J., concurring in part


[fn]2 We note that we can find no support in the law for the Association's
position that, to constitute educational policy, a matter must actually have
been the subject of prior decision-making by elected officials.  To the
extent the Association maintains that the law should be different, for policy
reasons, it must direct those arguments to the Legislature.


[end of page 7]


and dissenting in part).  The final sentence appears to delegate 
to the teacher a determination of the length of the teacher work 
day.  In addition, unlike the proposal in Lewiston relied upon 
by the Association, this provision lacks a defined standard from 
which to determine when a change has occurred that warrants 
additional compensation.  See Lewiston Teachers Ass'n v. 
Lewiston School Committee, No. 86-04 (June 30, 1986). In 
Lewiston, the Board concluded that the proposed compensation for 
work in excess of seven hours per day was a negotiable matter as 
it did not require the school to bargain (after the meet-and-
consult process[fn]3) over its right to determine the length of the 
teachers' work days.  Lewiston, No. 86-04 at 19.  Here, the 
proposal would result in the arbitrator, not the school 
department, making decisions defining the educational policy 
issue of the "normal teacher work day" and the "teacher's 
typical duties."  

ITEM #2.

    Article 6(D)(1): Teachers will be provided with planning 
    time based on school and class schedule. Every effort will 
    be made to develop a schedule that includes approximately 45 
    minutes a day or 225 minutes per week of preparation time in 
    an equitable/fair manner. Dailey preparation times will be 
    the norm [sic].  Administrators shall not interrupt this 
    time except for emergencies.  Teachers will normally be 
    provided with a minimum of 225 minutes of preparatory time 
    each full school week (this minimum is calculated by 
    multiplying 45 minutes times five days in the regular work 
    week). If an impacted teacher has less than the equivalent 
    of one (1) 45 minute preparation period per day, he/she 


[fn]3 The purpose of the meet-and-consult requirement "is to ensure that the
School Board, representing the interests of the citizens, has the authority
to make educational policy, with an opportunity for input from the teachers
prior to its implementation." Mt. Abram Teachers Assoc., No. 15-09 at 22,
citing Southern Aroostook Teachers Assoc. v. Southern Aroostook Community
School Committee, No. 80-35 and 80-40 at 15 (April 14, 1989). 


[end of page 8]


    shall have added to their salary the dollar equal to the 
    rate of 1/7 of his/her per diem rate.  [Complaint Par. 19 
    (b).]

The proposed Article 6(D)(1) includes matters of educational 
policy and the Association's refusal to remove this proposal 
from the list of issues in controversy submitted to the fact-
finding panel constitutes a refusal to bargain.  

	
    Teacher preparation or planning time is a matter of 
educational policy.  See, e.g., Sanford Fed. of Teachers v. 
Sanford School Comm., No. 84-13 at 5, and Caribou School Dept. 
v. Caribou Teachers Ass'n, No. 76-15 at 3-4 (Jan. 19, 1977).  
In all but the last sentence, this proposal requires the School 
Department to cede its right to determine the number of planning 
periods.  The proposal requires daily prep periods as "the norm" 
and would require the school to make "every effort" to provide a 
minimum of 225 minute of preparation time per week for all 
teachers.  The qualifying phrases such as making "every effort" 
and "will normally be provided" do not alter the non-negotiable 
status of this proposal because such vague standards will 
inevitably result in an arbitrator making educational policy 
decisions.  See, e.g., Sanford, No. 84-13 at 5 (Proposal to 
require daily preparation periods "whenever possible" was 
educational policy and non-negotiable).
	
ITEM #3.
    
    Article 8(A):  The Administration and supervising officials 
    will make a reasonable effort to equalize the teaching loads 
    and minimize the number of preparations. Middle School and 
    High School teachers who are required to teach more than two 
    (2) preps within a single subject area (i.e. biology, 
    chemistry, physics, natural sciences) shall each receive an 
    additional ten (10) days of per diem for each additional 
    prep to compensate for the additional preparation and work 
    required for such assignment. [Complaint Par. 19(c).]


[end of page 9]


The proposed Article 8(A) includes matters of educational policy 
and the Association's refusal to remove this proposal from the 
list of issues in controversy submitted to the fact-finding 
panel constitutes a refusal to bargain.

     The first sentence requiring the School Department to "make 
a reasonable effort to equalize teaching loads and minimize the
number of preparations" constrains the School Department's 
statutory prerogative to make those choices of educational 
policy.  Caribou, No. 76-15 at 3; Biddeford, 304 A.2d at 420; 
Sanford, No. 84-13 at 5.  

ITEM #4.

     Article 9(A): The Administration and supervising officials 
     will make a reasonable effort to equalize class size and 
     case load, taking into consideration such factors as age of 
     student, mode of instruction, and subject taught, where 
     applicable. Teachers who have more than 15 students 
     Kindergarten or 18 students in first through twelfth grade 
     in any class shall receive one seventh (1/7) his/her per 
     diem rate for class to compensate for the additional 
     workload. [Complaint Par. 19(d).]

The proposed Article 9(A) includes matters of educational policy 
and the Association's refusal to remove this proposal from the 
list of issues in controversy submitted to the fact-finding 
panel constitutes a refusal to bargain.

     The first sentence requiring the School Department to "make 
a reasonable effort" to equalize class size and case load 
interferes with its right to determine matters of educational 
policy.  See, Biddeford, 304 A.2d at 420 (Class size and the 
number of hours the teacher will be required to teach are 
inseparable from matters of educational policy.)  


[end of page 10]


ITEM #5.

   Article 9(B): Specialists who have more than an 18 student 
   caseloads shall receive one seventh (1/7) his/her per diem 
   rate for each additional student assigned to compensate for 
   the additional workload. [Complaint Par. 19(e).]

This proposed Article 9(B) does not require the School Board to 
negotiate over a matter of educational policy; it simply imposes 
a specified wage supplement in those instances where the student 
caseloads exceed the specified limit.  Whether this proposal 
purports to address the effects of an existing practice or 
anticipates the possibility of a future change not presently 
contemplated, it is essentially a salary proposal, which is a 
mandatory subject of bargaining in the context of these 
negotiations for a successor collective bargaining agreement.  
To be sure, this proposal--if accepted and incorporated into the 
parties' next collective bargaining agreement--could have the 
effect of driving the Board's decision-making with respect to 
specialist caseloads, likely a matter of educational policy.  
While this financial implication may be a barrier to agreement 
on the proposal at the bargaining table, it does not affect the 
proposal's negotiability.  The Union's insistence on presenting 
this proposal to the fact-finding panel does not violate the 
Act.  

  ITEM #6.

     Article 13(C): The use of regular teachers as substitute 
     teachers shall be avoided whenever possible. At the K-5 
     level, if a teacher has to substitute for a specialist, 
     said teacher shall be provided an equal amount of time as 
     soon as possible by the principal to be used as planning 
     time compensated at the rate of 1/7 of their per diem rate. 
     Under all other circumstances, if teachers covered by this 
     Agreement are used as substitutes for at least one full 


[end of page 11]


     period, said teachers shall be compensated at the rate of 
     1/7 of their per diem. [Complaint Par. 19(f).]

The proposed Article 13(C) includes matters of educational 
policy and the Association's refusal to remove this proposal 
from the list of issues in controversy submitted to the fact-
finding panel constitutes a refusal to bargain.

    A school's decision on whether or when to use regular 
teachers as substitute teachers is a matter of educational 
policy, and a proposal that the use of regular teachers as 
substitutes "shall be avoided whenever possible" is not 
negotiable.  The second sentence of the proposal would require 
the principal to provide release time from normal teaching 
duties for K-5 teachers who have been required to substitute for 
a specialist.  The second sentence is non-negotiable, as teacher 
assignments during the school day while students are present is 
a matter of educational policy.  MSAD No. 43 at 14.  

ITEMS #7 & #8.

   Article 15(F): Pursuant to Title 20-A, Chapter 508, 
   evaluations conducted and effectiveness ratings resulting 
   implementation under Chapter 508 shall be performed in good 
   faith and shall be consistent with the Teacher Evaluation and 
   Professional Growth system developed by the initial group of 
   Stakeholders and adopted by the Board. [Complaint Par. 19 
   (g).]

   Article 15(G): Teachers of Record for students who are taught 
   by other personnel directed by the district shall not be held    
   responsible for any educational impact on the students. 
   Furthermore, date or evidence based on student performance 
   from this class or classes shall not factor into the 
   evaluation of the Teacher of Record. [Complaint Par. 19 (h).]

The proposed Articles 15(F) and 15(G) include matters of 
educational policy and the Association's refusal to remove these 


[end of page 12]


proposals from the list of issues in controversy submitted to 
the fact-finding panel each constitutes a refusal to bargain.
The substance of teacher evaluations is a matter of educational 
policy.  See, e.g., Caribou, No 76-15 at 4, Lewiston, No. 86-04 
at 24-26.

   Article 17(F)(3): Any employee whose religious affiliation 
   requires the observation of holidays other than those 
   scheduled in the school calendar shall be excused with pay 
   by the supervisor. [Complaint Par. 19(i).]

This proposed Article 17(F)(3) does not involve any matter of 
educational policy.  As the Board has no jurisdiction to decide 
constitutional matters, we conclude that the Union did not 
violate the Act by insisting on presenting this issue to the 
fact-finding panel.  Sanford Police Assoc. v. Town of Sanford, 
No. 09-04, Interim Decision at 4 (Jan. 28, 2009).

    In summary, we conclude that the Association has violated 
§964(2)(B) of the Act by failing to bargain collectively with 
the Westbrook School Department as required by §965.

	
                              ORDER

     On the basis of the foregoing findings of fact and 
discussion, and by virtue of and pursuant to the powers granted 
to the Maine Labor Relations Board by the provisions of 26 
M.R.S.A. §968(5)(C), we conclude the Association violated the 
Act and we hereby ORDER the Union to:

    1. Cease and desist from insisting on presenting matters 
       of educational policy to the fact-finding panel; 


[end of page 13]


    2.  Withdraw any proposals we have found to consist of 
    educational policy. 


Dated at Augusta, Maine, this 30th day of May, 2018



		                /s/_____________________________
		                Katharine I. Rand
		                Chair



 		                /s/_____________________________
		                Robert W. Bower, Jr.
		                Employer Representative



		                /s/_____________________________
		                Amie M. Parker
		                Employee Representative


The parties are advised of their right pursuant to 26 M.R.S.A. 
§ 968(5)(F) to seek a review of this decision and order by the 
Superior Court.  To initiate such a review, an appealing party must 
file a complaint with the Superior Court within fifteen (15) days 
of the date of issuance of this decision and order, and otherwise 
comply with the requirements of Rule 80(C) of the Rules of Civil 
Procedure. 


[end of page 14]