STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 77-39
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BRADFORD INGERSON )
)
and )
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MILLINOCKET EDUCATION ASSOCIATION, )
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Complainants ) DECISION AND ORDER
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v. )
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MILLINOCKET SCHOOL COMMITTEE, )
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Respondent )
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This case comes to the Maine Labor Relations Board by way of a prohibited
practice complaint dated May 5, 1977, and filed by Milton R. Wright, Penquis
UniServ District Director, on May 11, 1977. The response to the aforesaid com-
plaint was dated May 16, 1977, and filed by Robert R. Pelletier, Superintendent
of Schools, Millinocket School Department, on May 18, 1977. A pre-hearing con-
ference was held in this matter at Augusta, Maine, on June 30, 1977, at 9:30 a.m.
with Alternate Chairman Donald W. Webber presiding. As a result of the pre-
hearing conference, a Pre-hearing Conference Memorandum and Order was issued on
July 5, 1977, the contents of which are incorporated herein by reference, and
which further provided that the matter be submitted to the Board on briefs.
After the receipt of legal memoranda, the Maine Labor Relations Board, meeting on
September 27, 1977, proceeded to deliberate on this case, Alternate Chairman
Donald W. Webber presiding with Kenneth Winters, Employer Representative, and
Michael Schoonjans, Employee Representative.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that this Board has jurisdiction to hear
and render a decision in this case as provided by 26 M.R.S.A. Section 968(5).
FINDINGS OF FACT
Upon review of the exhibits submitted at the pre-hearing conference, as well
as the pre-hearing conference memorandum and the pleadings, the Board finds:
1. The Millinocket Education Association, hereinafter referred to as
the "Association," was at all times material herein the recognized
bargaining agent for a bargaining unit of teachers in the employ
of the Millinocket School Committee, Millinocket, Maine, hereinafter
referred to as the "Committee."
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2. At all times material herein, Bradford Ingerson was employed
as a teacher in the Millinocket School Department.
3. At all times material herein, Bradford Ingerson was either
President-elect or President of the Association.
4. The 1975-76 Collective Bargaining Agreement between the Associa-
tion and the Committee contains no contractual language pertain-
ing to pre-school and noon playground duty.
5. During the process of negotiations for a post 1975-76 collective
bargaining agreement between the Association and the Committee,
there was general discussion between the parties with respect to
duties, but no specific proposals for negotiation were made by
either party with respect to specific duties.
6. During the week of February 25, 1977, the Elementary School Ad-
ministrator and the Superintendent of Schools, Robert R. Pelletier,
determined that it would be best if teachers were assigned the
responsibility of playground duty, effective with the arrival of
the first buses at each of the schools both in the morning and at
noon because of the possible civil liability which could occur
absent such coverage.
7. On Tuesday, March 1, 1977, the Superintendent of Schools met with
Mr. Martin, the Middle School Principal, and the representatives
of his building at a regular monthly meeting and discussed the
reasons for implementing a pre-school and noon playground duty,
effective with the arrival of the first buses at each of the schools.
Teachers in the Middle School volunteered to cover the above-mentioned
duty from March 2, 1977 through March 4, 1977. Mr. Martin, the
Principal, requested that the teacher scheduled for the duty be on
duty at 7:35 a.m. and 12:35 p.m., which is five minutes earlier than
all teachers are due to report to school as stated in the Teacher's
Handbook.
8. On Thursday, March 3, 1977, the Superintendent of Schools met with
the elementary teachers and the elementary principals at the Granite
Street School, at which time he advised them that it would be neces-
sary to institute the pre-school and noon playground duty as soon as
possible. The Principals explained to the teachers that they would
work on duty rosters and begin the responsibility for this duty on
Monday, March 7, 1977. The regular time for teachers to be at school,
according to staff regulations, was 8:00 a.m. and 12:30 p.m. The
responsibility for the newly instituted duty began at 7:45 a.m. and at
12:20 p.m. The additional 25 minute duty for a teacher occurs every
21 days at the Granite Street School, every 15 days at Katahdin Avenue
School and every nine days at Aroostook Avenue School.
9. Since March 7, 1977, teachers at the schools of the Millinocket School
Department have been assigned and continue to be assigned pre-school
and noon playground duty.
10. On Friday, March 18, 1977, Mr. Ingerson, Negotiations Chairman for
the Association, met with the Superintendent of Schools, and re-
quested that the additional responsibility be negotiated on the
grounds that they changed the teachers' working conditions. Mr.
Ingerson suggested that a) the responsibility might be carried on
by Teacher Aides hired for said purposes, b) additional compensa-
tion be given teachers for the duty and c) teachers who in fact
complete the duty, be allowed to leave at the end of the school
day prior to the regular dismissal time for teachers. The Superin-
tendent advised Mr. Ingerson that management had the responsibility
to insure the safety of the students and had every right to implement
the pre-school and noon playground duty. The School Committee,
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through its agent Mr. Pelletier, sent Mr. Ingerson a letter
dated March 24, 1977, explaining their position concerning
the request to negotiate and agreed to an informal meeting
on Monday, March 28, 1977.
11. On March 28, 1977, representatives of the Association met and
conferred with respect to the pre-school and noon playground
duty and the Committee proposed that the teachers be allowed
to leave school at a time earlier than usual as a result of
the duty.
12. On or about March 31, 1977, the Association forwarded to the
Committee a letter dated March 31, 1977, demanding to nego-
tiate pre-school and noon playground duties recently assigned to
teachers.
13. On or about Apri1 7, 1977, the Committee, through Superintendent
Robert Pelletier, forwarded a letter to the Association agreeing
to meet and to "discuss further" the matters of pre-school and
noon playground duty recently assigned to teachers.
14. On April 27, 1977, the Superintendent met with Mr. Ingerson and
advised him that the School Committee would have no objection
to teachers leaving early on the day they were responsible for
the additional 10 or 25 minutes of work.
DECISION
The Association has charged the Committee with a failure to bargain collec-
tively as required by 26 M.R.S.A. 964(1)(E). During the 1977 school year, the
Millinocket School Committee, or its authorized agents, unilaterally instituted a
pre-school and noon playground duty for teachers. The Association requested to
negotiate the additional duty since it allegedly changed teachers' working con-
ditions. The Committee alleged the change in duties was educational policy and
that it was not necessary for them to negotiate changes in educational policy. The
Association did not request to negotiate the "impact" of the changes and the Com-
mittee agreed to meet and confer but not negotiate with respect to the pre-school
and noon playground duty.
The parties in this case have both taken a legal position with respect to the
negotiability of the issue of pre-school and noon playground duty and have acted
according to that legal position. If the duty is an educational policy, then the
Committee has no obligation to negotiate with the Association and has furthermore
complied with its obligation to meet and consult with respect to educational poli-
cies as required by 26 M.R.S.A. 965(1)(C). If the duty is a working condition,
then the Committee has refused to bargain collectively as required by 26 M.R.S.A.
965(1)(C) in violation of 26 M.R.S.A. 964(1)(F). We are therefore presented with
the following issue:
Is pre-school and playground duty for teachers a working condition
or an educational policy?
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In City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387, 418
(Me. 1973) Justice Wernick stated:
"educational policies" and "working conditions" may be reasonably
conceived as categories defining areas with essential purity at the
extremities but with intermediate zones of substantial intermixture.
The Court in Biddeford proceeded to apply a balancing test for those zones of
substantial mixture and determined that the length of the school day in terms of the
number of hours the teacher will be required to teach or be in attendance at school
is a matter concerning which the "working conditions" interest of teachers are funda-
mentally inseparable from a plurality of non-teacher considerations involving im-
portant "managerial" and "policy" areas . . . . (T)he length of the teacher's working
day must be held, fundamentally, that kind of "educational policies" subject matter
which was legislatively intended to remain outside the scope of mandatory collective
bargaining . . . . (Biddeford at 420 and 421)
However, in discussing pre and post-school day hours, Justice Wernick stated:
On the other hand, questions relating to the attendance of teachers
at school at times other than when the students will be in attendance are
to be regarded as "working conditions" of teachers lacking significant re-
lationships to non-teacher interests of a quantitative and qualitative
magnitude sufficient to negate collective bargaining or binding arbitration.
(Biddeford at p. 421 and 422)
We do not believe the use of the word "attendance" in Biddeford was intended to
mean only attendance in the classroom. Since, by the facts in the present case, the
teacher attendance was keyed to the arrival of the school buses, the pre-school and
noon playground duties were duties performed at school while students were in attend-
ance and, according to Biddeford, was intended to remain outside the scope of mandatory
collective bargaining.
We are aware of the statement in Biddeford that the use of teacher aides "to moni-
tor playgrounds, supervise lunch periods, load and unload buses and other non-teaching
types of activities" (at p. 422) is a subject proper for collective bargaining and do
not intend this decision to foreclose future negotiations at an appropriate time con-
cerning the use of teacher aides. However, pre-school and noon playground duties re-
lating to the attendance of teachers at school at times when students will be in
attendance are matters of educational policy and intended to remain outside the scope
of mandatory collective bargaining.
Since the subject matter in dispute is a matter of educational policy, the Committee
was not required to negotiate with the Association and the charge of the Association for
failing to bargain collectively should be dismissed.
ORDER
On the basis of the foregoing findings of fact, and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the provisions of 968 of
the Municipal Public Employees Labor Relations Labor Relations Law, it is ORDERED:
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1. That the Complaint filed by Bradford Ingerson and the
Millinocket Education Association on May 11, 1977, should
be and hereby is DISMISSED.
Dated at Augusta, Maine, this 14th day of October, 1977.
MAINE LABOR RELATIONS BOARD
/s/__________________________________________________
Donald W. Webber, Alternate Chairman
/s/__________________________________________________
Kenneth T. Winters, Alternate Employer Representative
/s/__________________________________________________
Michael Schoonjans, Employee Representative
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