Saco-Valley Teachers Association v. MSAD No. 6 Board of Directors, MLRB No. 82-04, 5 NPER 20-13022 (Apr. 30, 1982) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-04 Issued: April 30, 1982 ____________________________________ ) SACO-VALLEY TEACHERS ASSOCIATION, ) ) Complainant, ) ) v. ) ) MSAD NO. 6 BOARD OF DIRECTORS, ) ) and ) ) NICHOLAS P. KARAMESSINIS, ) DECISION AND ORDER Superintendent of Schools, ) ) and ) ) DAVID A. HOPKINS, ) Assistant to the Superintendent, ) ) Respondents. ) ____________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. 968(5)(B) on July 30, 1981 by the Saco-Valley Teachers Association (Association). The Association alleges that the MSAD No. 6 Board of Directors, et al. (School Committee) violated the subsections of 26 M.R.S.A. 964(1) by refusing to reappoint the President of the Association to a Head Teacher position, by unilaterally implementing a new personal leave form, and by engaging in various other acts of interference and harassment. The School District on August 17, 1981 filed an answer to the complaint and a counter- claim, denying that any of its actions constitute violations of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. (Act), and alleging that the Association and its officers violated the subsections of 26 M.R.S.A. 964(2) by engaging in work stoppages, by refusing to bargain in good faith, and by being disloyal and insubordinate. The Association filed an amendment to its prohibited practice complaint on September 14, 1981 and the School District filed an answer to the amended complaint on October 1, 1981. A pre-hearing conference on the case was held on September 25, 1981. Alternate Chairman Donald W. Webber presiding. On October 1, 1981 Alternate Chairman Webber -1- issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. - Hearings on the case were held on October 7, November 13 and 23, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Association was represented by UniServ Director J. Donald Belleville and the School District by Donald A. Kopp, Esquire. The parties were given full opportunity to exam- ine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. JURISDICTION The Association is the bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B) for a bargaining unit of teachers employed by the School Committee. The MSAD No. 6 Board of Directors, Superintendent of Schools Nicholas Karamessinis, and Assistant to the Superintendent David Hopkins are all "public employers" as defined in 26 M.R.S.A. 962(7). The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. In July, 1980, Evelyn Turner, the President-elect of the Association, was appointed the Head Teacher for the 1980-81 school year at the Eliza Libby School. A Head Teacher (also called the Building Principal or the Teaching Principal) is responsible for the routine operation of the school building, performing such duties as scheduling lunch and playground periods, keeping inventories of textbrooks, supplies and equipment, orientating new teachers, handling minor student disciplinary problems, and carrying out School Committee policy. Head Teachers have no direct supervisory duties with regard to other teachers and do not participate in the evaluation of other teachers. The Head Teacher position is included in the teachers bargaining unit, and the salary for a Head Teacher is 1.1% of his or her annual salary for each teacher in the building. At the end of the 1980-81 school year Turner received an excellent evaluation from her elementary supervising principal, who stated that Turner's "professional and management competencies are of the highest quality." -2- 2. In April, 1981 Turner applied to be reappointed as the Head Teacher for the 1981-'82 school year at the Eliza Libby School. At the July, 1981 meeting of the School Committee, however, Superintendent Karamessinis recommended that the Head Teacher position at the Eliza Libby School be eliminated. Karamessinis said that a Head Teacher was not needed at the school because the Superintendent's Office was close by and could handle the school. The School Committee took no action on the Superintendent's recommendation at its July meeting. 3. A few days after the July School Committee meeting Karamessinis phoned Turner, who was then the President of the Association, and told her they had some potential problems they should talk about. A meeting was arranged, at which Karamessinis told Turner that being President of the Association and a Head Teacher were in conflict. Turner asked what the conflict was, and Karamessinis replied that Head Teachers might have to handle personal leave forms and that Turner had been part of a secret group. Karamessinis asked Turner to back off for a year, said that he would owe her a big one if she did, and stated that there would be consequences if she didn't back off. About a week after the meeting Karamessinis called Turner for her response, and she said a prohibited practices complaint would be her response and that she would not back off. 4. At the August 24, 1981 School Committee meeting Karamessinis recommended that another teacher be appointed the Head Teacher at the Eliza Libby School. One School Committee member asked why Turner shouldn't be reappointed, and Karamessinis said that there was a conflict of interest for an Association officer to be a Head Teacher, mentioning that Turner previously had tried to rally teachers to attend a School Committee meeting, had been a member of a secret group, and that as a Head Teacher she might be privy to information which could be useful to the Association. The School Committee approved the appointment of the other teacher, who was not an Association officer, to the Head Teacher position. One of the elementary supervising principals testified that Turner probably would have been reappointed to the position had she not been President of the Association. Five teachers were employed at the Eliza Libby School during the 1981-82 school year. 5. The "secret group" to which Karamessinis referred was a group of parents and teachers formed in the winter of 1981 purportedly for the purpose of improving the quality of education in the school district. Turner attended a few meetings, but when it became apparent that some people in the group wanted to initiate -3- a referendum to defeat construction of a school building, Turner and other Association representatives dropped out, as the Association strongly supported construction of the building. The incident where Turner tried to get some teachers to attend a School Committee meeting resulted when a School Committee member asked Turner to get some teachers to come to the meeting to express their views about a recess policy. While Turner was personally opposed to the policy, the Association apparently did not take a position with regard to the policy. There is no evidence that Head Teachers are privy to any confidential information which could benefit the Association. Another teacher, Bill Warner, had served as a Head Teacher while he was President of the Association, and there is no evidence that any improper conflicts arose during his tenure as Head Teacher. 6. In May, 1981, a committee recommended to the State Board of Education that persons appointed to be Teaching Principals should have certain creden- tials, including 6 semester hours of graduate study, 3 in elementary school administration and 3 in elementary school supervision. There is no evidence that these recommendations have been implemented by the Board of Education. Turner does not have the 6 semester hours of graduate study. Only 1 out of the 8 MSAD #6 Head Teachers appointed for the 1981-'82 school year has obtained these hours of graduate study. 7. On May 22, 1981 the School Committee and Association settled a pro- hibited practices complaint brought by the School Committee. The written agreement settling the complaint provides among other things that the Super- intendent may deny leave requests or may grant leave under a different section of the contract than requested. As a result of the agreement, Karamessinis decided that the form used to request personal leave had to be modified to include a section showing the Superintendent's action. He forwarded a copy of the proposed new form to the Association, which requested a meeting about the new form in a note to Karamessinis dated June 7, 1981. Karamessinis responded on June 10th, saying that he would meet "as a courtesy." He did not hear any- thing from the Association for several weeks, so on July 2nd he sent another copy of his June 10th note to the Association. The parties met on July 10th, with the Association making several suggestions concerning the new form. Karamessinis subsequently incorporated some of the Association's suggestions into the new form, which he forwarded to the Association in August. The new form was included in the 1981-'82 faculty handbook which was distributed to all teaching staff members. On September 3rd, Karamessinis notified Turner that he had delegated authority to handle personal leave requests at the high school and junior high school to the respective principals. -4- 8. In September a teacher, Karen Hazel, asked for personal leave and her principal gave her the new form to fill out. Hazel apparently asked Turner about the form, and Turner told her not to use the new form because it had not been approved by the Association. Turner gave Hazel one of the old forms, which Hazel filled out and left with the Superintendent's secretary. In a letter dated September 9th, Karamessinis informed Turner that leave requests on the old forms would not be approved. 9. In July, 1981 Karamessinis and Turner had a meeting to discuss the "chain of command" the Association was supposed to follow when corresponding with the school administration. In March and May, 1981, the Association had sent copies of letters to Karamessinis to the Chairperson of the School Committee, which Karamessinis contended was contrary to the school district's "correspondence policy," which states: "All correspondence and inquiries from employees or employee organizations shall be directed to or through the Superintendent to provide proper communication." Karamessinis warned Turner that the Association should not send copies of correspondence to School Committee members. 10. On September 3, 1981, Turner sent a copy of a letter to Karamessinis to the School Committee Chair. On September 1, 2, 4, and 5, Karamessinis sent letters concerning Association business to Barbara Weese, the Association's Secretary, with copies to Turner. The Secretary sent a letter to Karamessinis on September 3rd, pointing out that she was not authorized to deal with the matters raised in his letters and asking that he correspond directly with Turner or with the President-elect of the Association. 11. On August 4, 1981, Turner and Ruth Ball, the President-elect of the Association, sent a letter discussing Association business to Association members in the school district. The letter notes among other things that a prohibited practices complaint had been filed against Karamessinis and Hopkins, and asserts that "intimidation, harassment and threats are no longer accept- able rules of conduct." 12. On Monday, August 31st, Karamessinis called Turner at home and asked if Association representatives could meet with him and some School Committee members at 4:00 p.m. the next day. Tuesday, September 1st was a teacher workshop and student orientation day, and Wednesday, September 2nd was the first day of school. Turner said that she would get back to Karamessinis, and on Tuesday morning she called him and said that the teachers would still be working at 4:00 p.m. and -5- that Thursday, September 10th would be the best time for the Association to meet. Karamessinis said that September 10th would be too late because a School Committee meeting was scheduled for September 7th. 13. At about noon on September 1st, while Turner was on duty and was talking to a parent about bus routes, Karamessinis came to her room and took her out into the hall. Karamessinis was very angry because the Association could not meet that day, and he told Turner that he had not yet started to fight. Students were present in the hall while Karamessinis was talking, and Turner got quite upset about his comments. The parties did meet on September 10th. 14. In a note dated August 29, 1981 to Karamessinis, Turner and Ball re- quested written verification of a principal's order that they could not handle Association business from 8:00 a.m. to 3:00 p.m. on school days. Karamessinis responded on September 4th, stating that, with the exception of lunchtime, Association business should not be conducted from 8:00 a.m. to 3:00 p.m. This policy apparently was a continuation of past practice, as a letter dated February 5, 1981 from a principal to Weese also states that Association business could not be conducted during the school day. 15. At School Committee meetings in the fall of 1981, Turner, Ball, and Weese sometimes behaved in a rude, unprofessional manner by laughing at, mimicing and ridiculing School Committee members and administrators. DECISION The Association charges that the School Committee violated various subsections of Section 964(1) of the Act by 1) refusing to reappoint Turner as a Head Teacher for the 1981-'82 school year, 2) unilaterally changing the personal leave form, and 3) engaging in various acts of harassment and inter- ference against Association officers and members. The School Committee alleges that the Association 1) engaged in a work stoppage in violation of Section 964(2)(C) and 2) refused to meet and consult in good faith in viola- tion of Section 964(2)(B). We find that the School Committee violated Section 964(1)(A) and (B) by refusing to reappoint Turner because she was the Association President, and order remedies necessary to effectuate the policies of the Act. We dismiss all remaining allegations. -6- 1. The refusal to reappoint Turner as Head Teacher. The School Committee's refusal to reappoint Turner to a Head Teacher position because she was serving as the Association President plainly violated Section 964(1)(A) and (B).[fn]1 While the School Committee has come forth with a series of purported reasons why it did not reappoint Turner, we find that these "reasons" are primarily pretextual and that the School Committee had no valid business reason for not reappointing her. Close scrutiny of the reasons offered by the School Committee for not reappointing Turner reveals no legitimate basis for its action. For example, the "conflicts of interest" which Karamessinis cited to the School Committee in August, 1981 have no bearing on Turner's fitness to be a Head Teacher when viewed in their proper factual context. Karamessinis' contention that Turner should not be a Head Teacher because she had tried to rally teachers to attend a School Committee meeting was an incomplete statement of the facts. The record shows that a School Committee member asked Turner to get some teachers to come to a School Committee meeting and express their views about the recess policy. For Karamessinis to suggest that Turner's efforts to comply with this request meant that she was insubordinate and unfit to be a Head Teacher simply is unconscionable. Furthermore, Turner's actions had nothing to do with her position as an Association officer, as the Association apparently did not take a position on the recess policy. The claim that Turner was a member of a "secret group" similarly was an incomplete statement of the facts. Turner had attended a few meetings of a group of parents and teachers formed in the winter of 1981 allegedly for the purpose of improving the quality of education. When Turner found out that some people in the __________ 1. Section 964(1)(A) states that public employers are prohibited from inter- fering with, restraining or coercing employees in the exercise of the rights guaranteed in Section 963. Section 963 states: No one shall directly or indirectly interfere with, intimidate, restrain, coerce or discriminate against public employees or a group of public employees in the free exer- cise of their rights, hereby given, voluntarily to join, form and participate in the activities of organizations of their own choosing for the purposes of representation and collective bar- gaining, or in the free exercise of any other right under this chapter. Section 964(1)(B) prohibits public employers from encouraging or discour- aging membership in any employee organization by discrimination in regard to hire or tenure of employment or any term or condition of employment. -7- group wanted to initiate a referendum to defeat construction of a new school, she immediately dropped out of the group. We fail to see how this incident has any relevance at all to the propriety of Turner's serving as a Head Teacher. Finally, there is no evidence that Head Teachers are privy to any confidential information which might somehow benefit the Association. The Head Teacher position is a bargaining unit position, and the Superintendent's decision that Association officers were no longer eligible for the unit posi- tion obviously was discriminatory.[fn]2 In short, we find that the reasons relied upon by the School Committee for not reappointing Turner are not legitimate reasons for denying her reappointment. During the hearing of this case Karamessinis testified that two other reasons for his recommendation that Turner not be reappointed were that she did not have the graduate credits which a committee recommended should be required for Head Teachers, and that the other Teachers in her building were dissatisfied with her performance as Head Teacher. We conclude that the former reason is a sham because the record shows that only 1 out of the 8 1981-'82 Head Teachers had the recommended hours of graduate study. The application of the recommended criteria so as to preclude Turner from the position while other teachers who did not meet the criteria were given the position plainly is discriminatory as regards Turner. We believe that the latter reason is a self-serving statement because 1) there is no evidence that this reason was presented to the School Committee in August, 1981, 2) Turner received an excellent evaluation from her supervising principal after serving as Head Teacher for the 1980-'81 school year, and 3) there is no other evidence in the record that the teachers were in fact dissatisfied with her performance. Finally, the School Committee argues in its brief that Turner was not reappointed because she was disrespectful, disloyal and insubordinate. Several of the examples pointed to by the School Committee occurred after its August, 1981 decision not to reappoint, however, and thus obviously could not have been factors in its decision. We do not agree that other alleged examples of insubordination - such as Turner's and Ball's August 4th letter to teachers stating that the School Committee had en- __________ 2. If in fact the Head Teachers were privy to confidential information the proper procedure for the School Committee would be to negotiate the position out of the bargaining unit or to petition pursuant to Section 966(3) to have the position removed from the unit. Simply declaring that Association officers are no longer eligible for the position is an impermissible form of "self-help." See, e.q., Sanford Highway Unit v. Town of Sanford, Docket Nos. 79-171, et al. (York Cty. Super. Ct. Aug. 30, 1979), aff'd, 411 A.2d 1010, 1014 (Me. 1980). -8- gaged in harassment - amount to insubordination or disloyalty. While the Superintendent may not have liked the characterization, the teachers certainly had a right to make it, particularly since, as we find in this Decision and Order, the charge was not entirely unfounded. In short, we conclude that the record does not support the School Committee's contentions that serious conflicts of interest precluded Turner from being both the Association President and a Head Teacher. Indeed, the record shows that Association officers had served as Head Teachers without any serious conflicts of interest arising. Turner herself served as a Head Teacher during the 1980-81 school year while she was President-elect of the Association, receiving an excellent evaluation from her supervising principal at the end of the year. Another teacher, Bill Warner, had been a Head Teacher while he was the Association President, and there is no evidence that any conflicts of interest arose as a result of his dual roles. Given the lack of evidence of any legitimate reason for denying Turner the position, we conclude that she was denied reappointment substantially because she was the Association President. As one of the supervising principals testified, Turner probably would have been reappointed had she not been the President. The record of this case and the demeanor of the witnesses at the hearing show that considerable distrust and hostility exists between Karamessinis and the Association officers. We believe that as a result of these feelings Karamessinis recommended that Turner not be reappointed in order to harass and retaliate against her in particular and the Association in general. Such motives are of course improper. Denying an employee a position because of her union activities violates Section 964(1)(A) and (B). See, eg., Teamsters Local 48 v. City of Auburn, MLRB No. 79-41 (Oct. 4, 1979); Osteopathic Hospital Founders Association v. NLRB, 618 F.2d 633, 636 (10th Cir. 1980). We find that the School Committee's refusal to reappoint Turner as a Head Teacher for the 1981-82 school year interfered with her Section 963 rights in violation of Section 964(1)(A), and amounted to discrimination in regard to a condition of her employment in violation of Section 964(1)(B). We will order pursuant to Section 968(5)(C) that the School Committee cease and desist from denying appointment to the Head Teacher position or to any other position in the school system simply because the applicant is an officer or member of the Association. In order to make Turner whole for the discriminatory treatment she suffered, we will also order that the School Committee pay her the salary she would -9- have received as a Head Teacher at the Eliza Libby School for the 1981-82 school year. See, eg., NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969). Interest on this sum is to be computed on a quarterly basis on the total amount then due and owing, at a rate of 12% per annum from September, 1981 through January 31, 1982, and at a rate of 20% per annum from February 1, 1982 until such time as the total amount due has been paid. See, eg., Teamsters Local 48 v. Baker Bus Service, Inc., MLRB No. 79-70 (Jan. 25, 1982). We find that these remedies are necessary to effectuate the policies of the Act. 2. The Association's remaining allegations. The Association's remaining allegations are not supported by the record or the law and must therefore be dismissed. For example, the charge that Karamessinis violated Section 964(1)(E) by "unilaterally changing" the personal leave form is based on a misconception of the nature of the duty to meet and consult found in Section 965(1)(C). The composition of personal leave forms is an educational policy matter about which the School Committee is obligated to meet and consult but not negotiate. Cf., MSAD No. 43 Board of Directors v. MSAD No. 43 Teachers Association, MLRB Nos. 79-36, et al., at 16 (Aug. 24, 1979). The record shows that Karamessinis fully satisfied his duty to meet and consult before changing the form: he notified the Association about the proposed changes in the form, met and consulted with the Association about the new form on July 10, 1981, and incorporated some of the Association's suggestions in the new form. See, eg., Southern Aroostook Teachers Association v. Southern Aroostook Community School Committee, MLRB Nos. 80-35, et al. at 15-16 (April 14, 1982). Having satisfied the duty to meet and consult, Karamessinis' "unilateral" implemen- tation of the new form at the beginning of the 1981-'82 school year was entirely proper. Id. The charge that Karamessinis violated the Act by ordering that Association business could not be conducted from 8:00 a.m. to 3:00 p.m. on school days except during lunch fails because nothing in the record indicates that this order was anything other than the continuation of past practice. The only piece of evidence relevant to the issue is a letter dated February 5, 1981 from a principal to Weese stating that Association business could not be conducted during the school day. This letter indicates that Karamessinis' September, 1981 order was merely a continuation of this policy. Were there evidence that Karamessinis' order amounted to the imposition of new policy designed to interfere with or curtail the Teachers' Association activities, then our conclusion might well be different. The absence of -10- any such evidence leads us to conclude that Karamessinis was merely enforcing established, reasonable policy, an action which cannot be said to violate the statute. The Association's contention that Karamessinis violated Section 964(1)(A) and (B) on September 1st when he called Turner out of her classroom and berated her for not meeting with him also is not persuasive. We agree that Karamessinis' demand, given with less than 24 hours notice, that the Associa- tion officers meet with him on workshop and student orientation day was unreasonable, and that the incident in question is an obvious example of Karamessinis' hostility towards Turner. In addition, Karamessinis' outburst plainly was unjustified and is an example of an abominable personnel practice. Particularly since Turner's behavior in this matter has been far from exem- plary, however, we cannot say that Karamessinis' action interfered with or coerced her in the free exercise of her Section 963 rights or amounted to discrimination against her in regard to a condition of her employment. In short, given the facts of this case, the incident in question simply does not rise to the level of being a prohibited practice. Similarly, the incidents involving teachers Barbara Weese, Valerie Olesky, Barbara Steele, Richard Waldron, Zoe Gregory and Sharon Bressler do not amount to prohibited practices as defined in Section 964(1). The Association's allegations concerning these incidents are so lacking in substance that we can only conclude they result from the Association's distrust of and paranoia about the school administrators. We will dismiss all of the Association's remaining allegations.[fn]3 3. The School Committee's allegations. We also conclude that there is no substance to the School Committee's allegations. For example, the claim that the Association failed to meet and consult in good faith is rendered meritless by the fact that the Association did meet and consult about the new personal leave form in July, 1981. While Karamessinis had to ask the Associ- tion twice if they wished to meet about the form, this fact hardly amounts to evidence that the Association violated Section 964(2)(B). Similarly, there is not a shred of evidence that any Association officer or member engaged in a work stoppage or slowdown in violation of Section 964(2)(C). While Turner did improperly advise a teacher in September, 1981 not to use the new personal form, we do not agree that such advice amounts to __________ 3. Since the evidence does not show that Respondent David Hopkins was involved in any prohibited practice, he is hereby dismissed as a Respondent in this proceeding. -11- an illegal job action. The record does show that Turner and other Association officers engaged in various acts of misconduct. These incidents include Turner's advice that the new personal leave form not be used and Turner's, Weese's and Ball's antics at School Committee meetings in the fall of 1981.[fn]4 Also included is the sending of copies of Association correspondence with Karamessinis to School Committee members, although we regard the Association's infrequent breaches of the "correspondence policy" to be a trivial matter, particularly since Karamessinis responded in kind by sending his correspondence to the Association Secretary rather than to the Association President. The School Committee charges that the misconduct by Turner and the other officers shows that the officers were insubordinate and disloyal. This agency is not the proper forum for presenting such charges, however, since insubordination and disloyalty are not among the practices prohibited by Section 964(2). If the School Committee truly believed that the officers were insubordinate and disloyal, its recourse obviously was to discipline the officers. We will dismiss the School Committee's allegations. In sum, the record shows a startling degree of immature and unprofession- al conduct by several of the major figures in this case. This conduct seems to flow from personality conflicts as well as a deep-seated distrust, shared by the Superintendent and Association officers, of each other's motives and intentions. Any hope that these conflicts could be resolved by this Board is misplaced; such problems can only be resolved through the development of common sense and good will by the individuals involved. 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), it is hereby ORDERED: 1. That the MSAD No. 6 Board of Directors and Superintendent of Schools Nicholas P. Karamessinis, and their representatives and agents: __________ 4. As we have noted, these acts of misconduct by Turner occurred after she was denied reappointment as a Head Teacher on August 24, 1981. -12- a) cease and desist from denying appointment to the Head Teacher position or to any other position in the school system to any teacher solely on the basis of that teacher's leader- ship position in or membership in the Associa- tion. b) take the following affirmative action necessary to effectuate the policies of the Act: 1) pay to Evelyn Turner the salary she would have earned as the Head Teacher at the Eliza Libby School for the 1981-82 school year plus interest computed in the manner set forth in this Decision. 2) inform the Executive Director in writing, within 20 days of the date of this Decision and Order, of the steps taken to comply with this order. 2. All other allegations and charges by the parties are hereby dismissed. Dated at Augusta, Maine, this 30th day of April, 1982. The parties are advised of their MAINE LABOR RELATIONS BOARD right pursuant to 26 M.R.S.A. 968(5)(F) to seek a review by the Superior Court of this de- cision by filing a complaint in /s/_____________________________ accordance with Rule 80B of the Edward H. Keith Rules of Civil Procedure within Chairman 15 days after receipt of this decision. /s/_____________________________ Don R. Ziegenbein Employer Representative /s/_____________________________ Harold S. Noddin Employee Representative -13-