STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-44
______________________________
)
CARIBOU TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CARIBOU SCHOOL COMMITTEE, )
)
Respondent. )
______________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed December 26, 1972 by Complainant Caribou
Teachers Association ("Teachers Association"). On January 10, 1979, Respondent
Caribou School Committee ("School Committee") filed an answer and affirmative
defense to the complaint.
January 12. 1979, the parties submitted to the Board joint "Stipulations
As To Facts," which stipulated the pertinent facts of the case, defined the issue
which is presented for Board determination, and requested that the Board decide
the issue without conducting a pre-hearing conference or requiring that briefs
be filed.
The Board met to deliberate over this matter on January 26, 1979 in Augusta,
Maine, Chairman Edward H. Keith presiding, with Employer Representative Paul D.
Emery and Employee Representative Michael Schoonjans.
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
render a decision in this case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the complaint, the answer and the joint stipulations of fact,
the Board finds that:
1. Complainant Caribou Teachers Association is the exclusive
bargaining agent as defined in 26 M.R.S.A. 962(2) for
certain full-time certificated personnel employed by the
Caribou School Committee.
2. Respondent Caribou School Committee, a duly authorized
body acting on behalf of the City of Caribou, Maine, is a
public employer within the meaning of 26 M.R.S.A. 962(7).
3. Prior to December 7, 1978, the full-time certificated
personnel represented by the Teachers Association were
permitted to smoke on City of Caribou school property in
certain areas which were restricted to student access.
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4. On December 7, 1978, the School Committee voted to enact
a "no smoking" policy applicable to school personnel in
all areas on school property, to be effective as of December
11, 1978.
5. On December 11, 1978, the President of the Teachers Associa-
tion received an oral and written reprimand for violation of
the "no smoking' policy.
6. During the week of December 11-15, 1978 other full-time
certified personnel represented by the Teachers Association
received oral and/or written reprimands for violation of the
"no smoking" policy.
7. On or about December 12, 1978, the Chief Negotiator for the
Teachers Association forwarded to the Chairperson of the
School Committee a ten-day notice requesting that a meeting
be scheduled for collective bargaining over the change in
the smoking policy
8. On December 22, 1978, the School Committee voted not to
negotiate over the change in smoking policy on the ground that
the issue of smoking policy was a matter of educational policy
within the meaning of 26 M.R.S.A. 965(1)(C), about which
the School Committee was obligated to meet and consult but
not to negotiate. In a letter to the Chief Negotiator for the
Teachers Association, the School Committee indicated a willing-
ness to meet and consult with the Teachers Association over the
change in smoking policy.
DECISION
I.
Having carefully examined the Complaint, the Answer, and the Stipulations
As to Facts filed in this matter, we are satisfied that this case is in a proper
posture for a determination of the merits. The parties in their pleadings have
stipulated the pertinent facts, have clearly and concisely defined the legal
issue presented for our determination, and have carefully stated their positions
regarding this legal issue. We consequently see no need for a pre-hearing con-
ference or briefs on the matter, and therefore hereby grant the parties' request
that we decide this case without conducting a pre-hearing conference or requir-
ing that briefs be filed.
II.
Complainant Teachers Association charges that the School Committee violated
26 M.R.S.A. 964(1)(E) by unilaterally changing working conditions, i.e. prohibi-
ting school personnel from smoking in areas restricted to student access without
negotiating the change with the employees' bargaining agent as required by 26
M.R.S.A. 965(1)(C). The School Committee denies that its actions constitute a
violation of 26 M.R.S.A. 964(1)(E).
In Oxford Hills Teachers Ass'n v. Bd. of Dirs. of MSAD No. 17, PELRB Case
No. 73-06 (1973), we held that the issue of whether school personnel can smoke
in areas restricted to student access involves working conditions, and therefore
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is a mandatory subject of collective bargaining under 26 M.R.S.A. 965(1):
". . . it is our finding and decision that when smoking occurs on
school grounds or in school buildings in those areas which are
ordinarily restricted to student access, and that are ordinarily
outside those areas normally visited by or visible to students in
the school building or on the school premises, it is no longer a
matter of educational policy and then justifiably constitutes a
working condition for those teachers employed at that location.
The results of this finding are that when the teachers seek to
negotiate on the question of the imposition of a smoking ban in those
areas specifically reserved to teachers, and not ordinarily accessible
to or visited by the students, it then constitutes a working condi-
tion and, as such, it is a matter which is fully negotiable in the
collective bargaining process. As such, the teachers have every right
through their bargaining agent to request to negotiate on the question
of smoking areas for teachers . . ."
The School Committee argues as an affirmative defense, however, that since
issuance of our Oxford Hills decision in 1973, the further medical evidence
establishing the harmful effects of smoking and the changing times, conditions,
and circumstances dictate that this Board should reverse the Oxford Hills holding
quoted above. After carefully considering the School Committee's argument, we are
of the opinion, for the reasons discussed below, that we must reaffirm the Oxford
Hills' decision and find that the School Committee's unilateral change in smoking
policy violated 26 M.R.S.A. 964(1)(E).
We believe that our holdings in Oxford Hills were substantially strengthened
by the Law Court's analysis of the educational policy/working condition dichotomy
in 26 M.R.S.A. 965(1)(C) in City of Biddeford v. Biddeford Teachers Ass'n, 304
A.2d 387 (Me. 1973), issued subsequent to Oxford Hills. In City of Biddeford,
Justice Wernick noted that the terms "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" (304
A.2d at 418). Justice Wernick then concluded that the legislature's "double em-
phasis" in 26 M.R.S.A. 965(1)(C) on the concept of "working conditions" is
designed to prevent the emasculation of teacher "working conditions" as a mandatory
subject of collective bargaining (304 A.2d at 419-420).
Such double emphasis - "first, . . . by affirmative definition teacher 'work-
ing conditions' are explicitly included within mandatory collective bargaining and,
second, . . . by negative exclusion 'working conditions' are eliminated from the
effects of 'educational policies' " (304 A.2d at 419) - means, Justice Wernick
concluded, that the legislature intended teacher "working conditions" to be nego-
tiable even though a particular working condition might "tend to encroach upon
the 'managerial' organization, supervision, direction or distribution of working
personnel" (304 A.2d at 419). Accordingly, Justice Wernick found that matters
related to teacher working conditions are prima facie eligible for collective bar-
gaining, and that such prima facie eligibility can be overridden only if the quan-
titative number and/or qualitative importance of functions "generally cognizable
as 'managerial' and 'policy making' . . . are found significantly substantial"
(304 A.2d at 420).
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Questions about whether school personnel may smoke on school property in
areas to which student access is restricted involve working conditions, Oxford
Hills Teachers Ass'n, supra. Thus, under Justice Wernick's analysis in City or
Biddeford, supra, such questions are prima facie eligible for collective bargain-
ing. Such prima facie eligibility is not overridden, in our opinion, by any
significantly substantial managerial or policy-making functions. While school
committees do of course have an interest in assuring that its employees stay
healthy, an adult's decision about whether to smoke essentially remains the
personal choice of the individual. The fact that an employee smokes does not in
the usual case seriously disrupt school operations or result in any other signi-
ficant problems which would warrant a unilateral ban on smoking in all areas of
school property by a school committee. The question of whether school personnel
may smoke in areas restricted to student access does not tend to encroach upon
the organization, supervision, direction or distribution of working personnel.
We do of course recognize that school committees have significantly substan-
tial policy interests in assuring that students while at school are not exposed to
persons who are smoking. This interest falls within a school committee's mission
of preparing its students for a productive. healthy adult life. Thus, we held in
Oxford Hills Teachers Ass'n, supra, that questions about smoking by school personnel
in areas of unrestricted student access involves educational policy about which
school committees are obligated to meet and consult but not negotiate under 26 M.R.S.A.
965(1)(C). We take this opportunity to reaffirm specifically our holding in Oxford
Hills that school committees are not required to negotiate before instituting a
smoking ban on school property in classrooms, hallways and in other areas to which
student access is unrestricted.
It is clear in this case that the School Committee did not negotiate before ban-
ning smoking in areas on school property which were restricted to student access.
The School Committee at its meeting on December 7, 1978 voted to enact the "no
smoking" policy in all areas on school property. In response to a request by the Chief
Negotiator for the Teachers Association that the School Committee negotiate over the
change in smoking policy, the School Committee voted not to negotiate but did indicate
a willingness to meet and consult over the matter. The School Committee's ban on
smoking is part of the nationwide trend that prohibits smoking on public property
Nonetheless, the School Committee is obligated under 26 M.R.S.A. 965(1)(C) to
negotiate before instituting a change in working conditions. The School Committee's
unilateral change in working conditions consequently constitutes a per se violation
of the obligation to bargain collectively, see, e.g., NLRB v. Katz, 369 U.S. 736
(1962) Lake Teachers Ass'n v, Mount Vernon School Comm. MLRB Case No, 78-15 (1978).
We accordingly find that the School Committee's unilateral ban on smoking in areas
restricted to student access violated 26 M.R.S.A. 964(1)(E), and will order an
appropriate remedy.
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 968 of the Municipal
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Public Employees Labor Relations Act, it is hereby ORDERED:
1. That the Caribou School Committee, and its representatives and
agents, cease and desist from engaging in any of the acts pro-
hibited by 26 M.R.S.A. 964(1), and especially from refusing to
bargain collectively with the bargaining agent of its employees
as required by 26 M.R.S.A. 965(1).
2. That the Caribou School Committee cease the ban on smoking on
school property in those areas restricted to student access
until the issue of banning smoking in areas restricted to student
access has been negotiated with the Caribou Teachers Association.
3. That any and all disciplinary action and/or penalties imposed
against members of the bargaining unit represented by the Caribou
Teachers Association for violations of the "no smoking" policy
in areas restricted to student access be immediately rescinded,
and the files of these individuals expunged of any reference to
such violations.
Dated at Augusta, Maine this 7th day of February, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Paul D. Emery
Employer Representative
/s/________________________
Michael Schoonjans
Employee Representative
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