STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-56
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)
SACO-VALLEY TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MSAD #6 BOARD OF DIRECTORS, )
)
Respondent. )
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The Saco-Valley Teachers Association (hereafter "Association") filed this
prohibited practice complaint on February 23, 1979. The MSAD #6 Board of Directors
(hereafter "Directors") filed a response on March 14, 1979. A pre-hearing confer-
ence was held on May 3, 1979, by Chairman Edward H. Keith, who issued a Pre-Hearing
Conference Memorandum and Order on May 9, 1979, the contents of which are incorpora-
ted herein by reference,
The matter was heard by the Maine Labor Relations Board (hereafter "Board")
on June 26, 1979, Chairman Keith presiding, with Paul D. Emery, Employer Representa-
tive, and Roland E. Gorman, Alternate Employee Representative. The Association
was represented by Delmont J. Perry; the Directors by Robert E. Powers. At the
conclusion of the hearing there was oral argument.
JURISDICTION
Jurisdiction to hear and render a decision and order in this case lies in
26 M.R.S.A. 968(5) of the Municipal Public Employees Labor Relations Act (here-
after "Act").
FINDINGS OF FACT
1. Complainant Association is the recognized bargaining agent for a
unit of teachers and other employees of the Directors. 26 M.R.S.A.
962(2). Respondent Board of Directors is the public employer
of these employees. 26 M.R.S.A. 962(7).
2. The current collective bargaining agreement (hereafter "Agreement")
between the parties, signed August 12, 1978, is effective from
September 1, 1978, to August 31, 1980. Article VII(A) of the Agree-
ment contains a "just cause" provision:
"No teacher on continuing contract shall be dismissed or
suffer nonrenewal of contract without just cause. No
teacher shall be disciplined, reprimanded, reduced in
rank or compensation or be deprived of any professional
advantage without just cause. Any such action asserted by
the Board, or any agent, or representative thereof, shall
be subject to the grievance procedure herein set forth be-
fore such action shall become final."
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3. After the Agreement was executed, the Directors proposed a new,
greatly expanded, teacher evaluation form. A round of meetings
were held with the Association first by Superintendent Arthur Doe
and then by the Acting Chairwoman of the Board of Directors, Joan
Berry, during which the proposed form was discussed. The Associa-
tion later submitted suggestions for the improvement of the form
with supporting reasons in writing to Chairwoman Berry in a
letter dated November 20, 1978
4. The Directors acted on December 4, 1978, to maintain the proposed form
as it was. Within the next week the administration began evaluating
all the teachers.
5. Association President Patricia Mitchell sent a ten-day notice letter
dated January 9, 1979, to Chairwoman Berry stating, in pertinent part:
"The [Association] requests pursuant to Title 26, Chapter
9-A, that the Board of Directors of MSAD #6 meet with the
Association within 10 days to negotiate the substance and im-
pact of the Board's unilateral changes upon the wages, hours,
working conditions of unit members; caused by the Board's
evaluation program."
The letter suggested a meeting on either January 16 or 18.
6. This letter was received at least by January 15, 1979, when the Directors
voted to:
"Instruct the superintendent to answer the [Association's] request
regarding negotiations and to indicate that the Board feels that
evaluation is not a negotiable item but would be happy to meet
and discuss the concerns of the [Association] at 8:30 p.m., Monday,
January 29."
The Superintendent answered in a letter dated January 17, 1979, to this
effect. The clear implication of his letter was that the Directors
would meet and discuss but not negotiate.
7. The Association clarified in a letter dated January 23, 1979, that it
intended to "negotiate the impact" of the Board's changes upon working
conditions; but not to simply meet and discuss as had already been done
exhaustively, The Directors did not indicate a willingness to negotiate at
that time and they continue to maintain that there is no duty to negotiate
anything regarding the evaluation forms.
8. The new evaluation form is five pages long, with eleven areas of evaluation.
Each area has from three to thirteen items next to which there is space to
indicate "yes" (/), "no" (-), or "does not apply or is not observable" (o).
For example, the first area "1. Knowledge of Subject Matter," states:
"C. Has earned credits or recertification credits in the methods of
teaching reading appropriate to their grade level or has
filed a letter with his principal indicating that credits or
recertification credits will be completed by December 31, 1979."
Area "2. Classroom Planning" states:
"b. Provides a written annual plan for each subject taught correla-
ted with written District curriculum guides. This plan shall
include materials and resources, sequence of activities, and learn-
ing outcomes. Due on or before October 23. (Use Form B)
c. Writes plans of instruction in advance which includes a general
outline by the week, supplemented by more detailed plans on a
daily basis. These plans should include learning outcomes and/
or skills expected.
d. Written contingency plans - 3 days of subject related planned
activities for the use of substitutes."
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DISCUSSION
The Association charges that the Directors have violated 26 M.R.S.A. 965
(1)(B)(C) and 964(1)(C)(E) by refusing to meet to negotiate the substance and
the impact on working conditions of the Directors' new teacher evaluation program
when requested in a "ten-day" letter. The Association argues: (1) that the sub-
stance of the evaluation program is a mandatory subject of bargaining by virtue
of 5 M.R.S.A. 1006(3) and 20 M.R.S.A. 161(5); and (2) that the impact of the
program is a mandatory subject under previous Board decisions.
The Directors counter that the substance of the policy is exempt from bargain-
ing as a matter of educational policy per 26 M.R.S.A. 965(1)(C) and that there is
no demonstrable or "bargainable" impact to be bargained.
We conclude that the Directors have engaged in a prohibited practice by fail-
ing to meet when requested to negotiate the impact of the new evaluation program:
(a) within ten days in violation of 26 M.R.S.A. 965(1)(B) and 964(1)(E); and
(b) at any time subsequent in violation of 965(1)(C) and 964(1)(E). There is
no violation of 964(1)(C).
Section 965(1)(B) requires the public employer and the bargaining agent:
"To meet within 10 days after receipt of written notice from the
other party requesting a meeting for collective bargaining pur-
poses, provided the parties have not otherwise agreed in a prior
contract."
Such notice was received. The response indicated that the Directors would meet
and discuss, but not negotiate, and that it would meet for that restricted purpose
on a day beyond the ten-day limit.
Thus, if the proposed subjects are mandatory subjects of bargaining under
965(1)(C), then the Directors engaged in a prohibited practice under 965(1)(B)
by failing to meet within ten days and by proposing only to meet and discuss
when actual negotiations would be required. See East Millinocket Teachers Association
v. East Millinocket School Committee. MLRB No. 75-24 (1979) at 4. They would also
have engaged in a prohibited practice under 965(1)(C) by continuing to refuse to
negotiate the subjects if they are mandatory subjects. See M.S.A.D. No. 43 Teachers
Association v. M.S.A.D. Board of Directors, MLRB No. 79-42 (1979) at 3.
The key issues to be resolved, therefore, are whether the substance of the evalua-
tion program is a mandatory subject of bargaining and whether there is any bargainable
impact on working conditions of the program.[fn]1
1. Teacher Evaluation
The Association argues that the substance of the evaluation program is a manda-
tory subject of bargaining by virtue of 20 M.R.S.A. 161(5) and 5 M.R.S.A. 1006(3).
The former statute states: "Just cause for dismissal may be a negotiable item . . . ."
Whether or not a "just cause" provision is mandatory under this statute, however, would
not control the result with respect to the substance of an evaluation program. This
is so because the latter statute, 5 M.R.S.A. 1006, covers the issue more specifically.
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1 The Directors concede that impact would be a mandatory subject, see, e.g., East
Millinocket Teachers Association v. East Millinocket School Committee, MLRB No. 79-24
(1979) at 5, but take issue with the claim that there is impact.
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Title 5 M.R.S.A. 1006 prohibits usage of a mandatory retirement age.
Paragraph (3) of the section states:
"3. Criteria and standards. A state department or public
school may establish reasonable criteria and standards
of job performance to be used for the purpose of de-
termining when employment of its employees should be
terminated. Where there is a certified bargaining agent,
the establishment of these criteria and standards may be
a subject of collective bargaining. These criteria and
standards shall be consistent for all employees in the
same or similar job classifications, shall be applied
fairly to all employees regardless of age and shall be
consistent with the provisions of the Maine Human Rights
Act relating to the employment of physically and mentally
handicapped persons."
5 M.R.S.A. 1006(3)(1979)(emphasis added).
This section became effective on July 1, 1978. Prior to that, this Board
had determined that a teacher evaluation program, at least with regard to frequency
and form, was a matter of educational policy in Caribou School Department v. Cari-
bou Teachers Association, MLRB No. 76-15 (1977). See also, State v. State Super-
visory Employees Association, 393 A.2d 233, 254 (N.J. Sup. Ct. 1978). Since the
teacher evaluation program at issue here sets criteria and standards against which
the teacher's performance is judged, however, the excerpted language of 5 M.R.S.A.
1006(3) regarding the subject governs instead of the Board's decision.
The statute plainly removes the subject from the educational policy exception.
The only question is whether the phrase "may be a subject of collective bargaining"
should be construed to classify the subject as mandatory or permissive. The key
is the word "may." The word is susceptible to two interpretations.
"The word 'may' when used in a statute, is generally intended
to be permissive, discretionary, and not mandatory, subject
to the overriding principle that legislative intent must control."
Boynton v. Adams, 331 A.2d 370, 372 (Me. 1975).
The legislative history of 5 M.R.S.A. 1006 cannot be said to reveal an intent
to have the word "may" mean "shall" as is often the case.
This lack of contrary intent follows since the Legislature simply did not
mention the provision in either floor debate or in statement of facts.[fn]2
The conclusion that teacher evaluation programs are permissive subjects of
bargaining raises the expressed concern of the Association that such could be used
to bypass the just cause provision of the agreement. The answer is that the Associa-
tion does not concede the validity or the criteria or standards unilaterally estab-
lished by the Directors. Thus, the evaluation form itself would have no presump-
tive value for use in an action that is subject to a just cause grievance.
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2 The only distant reference to the concept in a fairly extensive debate is in a
statement by Senator Mangan expressing confidence that unions would be able to "work
out" retirement under the mandatory-retirement-age prohibition just as they work out
other working conditions. Legislative Record, 1977, at page 2471 col. 2. The al-
ternative to a mandatory retirement age that would be "worked out" in the new statute,
of course, is job performance standards. Thus, there is revealed an assumption by the
Senator that unions would be involved just as in other areas which are mandatory
subjects. While it is some indication in what is otherwise a void, it is simply in-
adequate to overcome the general, permissive meaning.
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This is not to say that there is no danger that an "evaluation program"
could be utilized as a way of unilaterally establishing new working conditions
by creating de facto work rules and requirements. Work rules are generally
recognized to be mandatory subjects of bargaining. See, e.g., NLRB v. Southern
Transport, Inc., 343 F.2d 558 (8th Cir. 1965). Thus, to the extent that item 1(C)
of the evaluation form appears to create a new requirement for certification credits in
the methods of teaching reading, or to the extent that new written requirements may
be created by items 2(b)(c) & (d) and others, there is cause for concern.
The short of it, however, is that the items are not mandatory rules. It is a
method of evaluation for the Directors internal use which the teachers are not bound
to follow. However, the demonstrated concern of the teachers for their professional
reputations makes it likely that they will want to comply with the items. Thus,
it is undeniable that there will be a substantial impact on working conditions as a
result of the implementation of this evaluation program.
II. Impact.
The Directors argue that the impact of its evaluation program must exceed some
minimum level before they should be required to negotiate such impact. Whatever value
may lie in the proposition advanced, it could not change the result here since the
impact is very substantial. In order for teachers to receive positive marks on the
evaluation forms they may have to expend money and time attending courses, spend
additional hours creating and revising new planning documents, and perhaps toil in
other new areas. Thus the Directors should have met to negotiate concerning the impact
of the new evaluation program. Having failed to do so, the Directors engaged in a
prohibited practice in violation of 965(1)(C) and 964(1)(E).
The ten-day letter included a request to negotiate both the substance and the
impact of the evaluation program. That the impact is a mandatory subject of bargain-
ing is enough to trigger the requirement to meet within ten days, even if the sub-'
stance of the program is not. Cf. Teamsters Local 48 v. Town of Falmouth MLRB Case
Nos. 79-10 and 79-18 (1979). Thus by refusing to meet to negotiate impact within
ten days of receipt of a valid request, the Directors violated 965(1)(B) and
964(1)(E). Even after the Association sent another letter stating the intention
to negotiate impact, the Directors continued to refuse to meet and thereby violated
965(1)(C) and 964(1)(E).
REMEDY
Thus, we order that the Directors cease the above prohibited practices and
that they negotiate in good faith with the Association with respect to the impact
of the implementation of the new evaluation program. 26 M.R.S.A. 968(5)(C).
Given that the substance of this evaluation form is not a mandatory subject of
bargaining, however, the Directors' use of the form does not run afoul of the Act.
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ORDER
Respondent MSAD #6 Board of Directors, its members, agents, successors and
assigns:
(1) Shall cease and desist:
(a) from refusing to meet to negotiate within ten days of receipt
of a written request to negotiate the impact on working condi-
tions of any policy or program change, and
(b from refusing to negotiate in good faith the impact on working
conditions of any policy or program change; and
(2) Shall take the affirmative action of meeting within ten days of receipt
of a written notice from the Saco-Valley Teachers Association request-
ing negotiations concerning the impact on working conditions of the
new evaluation form.
Dated this 9th day of August, 1979.
MAINE LABOR RELATIONS BOARD
/s/_______________________________
Edward H. Keith
Chairman
/s/_______________________________
Paul D. Emery
Employer Representative
/s/_______________________________
Roland E. Gorman
Alternate Employee Representative
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