STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 82-28
ISSUED: August 9, 1982
___________________________________
)
BRUNSWICK TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. )
)
BRUNSWICK SCHOOL BOARD )
)
and )
)
DANIEL CALDERWOOD, )
Superintendent of Schools, ) DECISION AND ORDER
)
and )
)
ERVIN SNYDER, )
a Member of and Chief Negotiator )
for the Brunswick School Board, )
)
Respondents. )
___________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on February 18, 1982 by the Brunswick Teachers Association
(Association). The Association alleges that the Brunswick School Board, et
al. (School Board) has violated 26 M.R.S.A. Section 964(i)(E) by refusing to
bargain about the Association's seniority proposal. The School Board filed an
answer and a counter-claim on March 11, 1982, denying that its refusal to
bargain about the seniority proposal was in violation of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq., and alleging
that the Association violated 26 M.R.S.A. Section 964(2)(B) by insisting that
the seniority proposal be negotiated.
A pre-hearing conference on the case was held on March 29, 1982,
Alternate Chairman Donald W. Webber presiding. On March 30, 1982, Alternate
Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
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A hearing on the case was held on April 14, 1982, 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 Board by Merton G. Henry, Esq.
The parties were given full opportunity to examine and cross-examine wit-
nesses, introduce evidence, and make argument. Both parties filed post-
hearing briefs, which have been considered by the Board.
JURISDICTION
The Association is the exclusive bargaining agent within the meaning of
Section 968(5)(B) for a bargaining unit of certified professional employees
employed in the Brunswick school system. The School Board and Superintendent
of Schools Daniel Calderwood and Chief Negotiator Erwin Snyder are public
employers as defined in Section 962(7). The jurisdiction of the Maine Labor
Relations Board to hear this case and render a decision and order lies in
Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In September, 1981, the Association and the School Board began
negotiations for a collective bargaining agreement to succeed an agreement
due to expire on August 31, 1982. Among the items presented by the Asso-
ciation was the following seniority proposal:
E. SENIORITY
"Seniority lists shall be established listing all teachers covered
by this agreement according to their certified subject matter of
certificate. Seniority shall be based upon the teacher's dat.e of
hire in the present school system, except that when two or more
teachers have the same seniority in the present school system,
the teacher having the largest total teaching experience will be
listed first.
"Seniority shall be the governing factor in terminating teaching
positions. In the event it becomes necessary to terminate a
teaching position for any reason, teaching positions shall be
terminated in the inverse order of the teacher's seniority, pro-
vided abilities are equal.
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"Any teacher losing his position shall have first refusal,
if qualified, in filling any vacancy. If refused, a
written statement from the Superintendent stating the
reasons for refusal to hire shall be given the teacher
within ten (10) days."
The School Board agreed to bargain about the first paragraph of this proposal,
but took the position that it was not required to negotiate about the second
and third paragraphs of the proposal in light of, among other things, the
Supreme Judicial Court's decision in Board of Directors of M.S.A.D. No. 36 v.
M.S.A.D. No. 36 Teachers Association, 428 A.2d 419 (Me. 1981). The Asso-
ciation attempted to negotiate about its seniority proposal during subsequent
bargaining sessions, but the School Board refused to discuss the proposal.
2. In January, 1982, the School Board proposed that the seniority
provision in the current agreement remain in effect. That provision states:
"In the event it becomes necessary to terminate a teaching
position(s) for any reason, due weight will be given to the
professional background and attainments of all teachers in
that position, length of service in the Brunswick School Sys-
tem and other relevant factors in determining which teachers
will be retained."
The Association refused to agree to this proposal because it felt that the
current language does not give sufficient weight to seniority in termination
decisions. The Association continued up to the time of the hearing of this
case to insist that its seniority proposal be negotiated, while the School
Board continued to refuse to negotiate about the proposal. At the time of the
hearing the Association had requested that a mediator be assigned to assist
with negotiations, with seniority being listed as one of the unresolved
issues.
DECISION
At issue is the question whether the Association's seniority proposal is
a
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mandatory subject of bargaining under Section 965(1)(C).[fn1] If the
proposal is a mandatory subject then the School Board violated Section
964(1)(E) by refusing to bargain about it. See, e.g., M.S.A.D. No. 43 Board
of Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36, et al.
(Aug. 24, 1979). If, on the other hand, the proposal is not a mandatory
subject of bargaining then the Association violated Section 964(2)(B) if it
insisted to impasse that the proposal be negotiated; the insisting party's
"good faith" is not a defense to a charge that the party insisted on
bargaining a non-mandatory subject. See, e.g., NLRB v. Wooster Division of
Borg-Warner Corp., 356 U.S. 342, 349-350, 78 S.Ct. 718 2, L.Ed. 2d 823
(1958); M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No. 43 Board of
Directors, Docket No. CV 79-541 at 4-6 (Kennebec County Super. Ct. July 8,
1980).
In light of the Supreme Judicial Court's decisions in the M.S.A.D. No. 36
case and in Paradis v. M.S.A.D. No. 33 School Board, ____A.2d____ (June 7,
1982), we conclude that the seniority proposal is a non-mandatory subject of
bargaining. We accordingly find that the Association violated Section
964(2)(B) by insisting to impasse on negotiations about the proposal, and
order that the Association cease and desist from insisting that the School
Board negotiate about the proposal.
The second paragraph of the seniority proposal provides that seniority
"shall be the governing factor in terminating teaching positions" and that
"teaching positions shall be terminated in the inverse order of the teacher's
seniority, provided abilities are equal." This paragraph clearly cannot be a
mandatory subject of bargaining under the Paradis decision, which holds in
essence that since 20
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1/ Section 965(1)(C) states that public employers and bargaining agents
are mutually obligated:
"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 shall be com-
pelled to agree to a proposal or be required to make a con-
cession and except that public employers of teachers shall
meet and consult but not negotiate with respect to educa-
tional policies for the purpose of this paragraph, educa-
tional policies shall not include wages, hours, working con-
ditions or contract grievance arbitration;"
Section 9640)(E) prohibits public employers from refusing to bargain
collectively with the bargaining agents of their employees as required by
Section 965, while Section 964(2)(B) imposes a similar prohibition on
employee bargaining agents.
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M.R.S.A. Section 161(5) grants school boards the nondelegable right to
terminate teaching positions "when changes in local conditions warrant the
elimination of the teaching position,"[fn] a requirement that seniority be the
governing factor in the termination decision "would violate section 161(5)."
Slip Opinion at 8. Since school boards are granted the exclusive authority to
terminate teaching positions, it follows that a school board cannot properly
restrict its authority by agreeing to make seniority the governing factor.
See, e.g., M.S.A.D. No. 36, 428 A.2d at 422 (school board could not lawfully
limit its Section 161(5) responsibility of filling teaching positions through
a contract provision which requires a preference in favor of applicants within
the school system, even though the school board entered into the contract
provision voluntarily). In short, since the termination of teaching positions
is a matter governed by statute, with the only limitation being the implied
duty of school boards to exercise their power "in good faith for the best
interests of education in the district," Slip Opinion at 8, proposals such as
the Association's seniority proposal which would restrict or fetter the School
Board's power are non-negotiable. We conclude that the second paragraph of
the proposal presents a non-negotiable matter about which the School Board
properly refused to bargain.
We reach the same conclusion with regard to the School Board's refusal to
negotiate about the third paragraph of the proposal. This paragraph provides
that any teacher losing his/her position shall have first refusal, if
qualified, in filling any vacancy. As previously noted, the Court in M.S.A.D.
No. 36 held that because Section 161(5) reserves for school boards the
exclusive responsibility for
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2/ Section 161(5) states in pertinent part:
"The right to terminate a contract, after due notice
of 90 days, is reserved to the superintending school com-
mittee or school directors when changes in local condi-
tions warrant the elimination of the teaching position
for which the contract was made."
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filling teaching positions,[fn3] a school board cannot lawfully agree to limit
its responsibility through a contract provision which requires a preference in
favor of applicants within the school system. By providing a right of first
refusal on any vacant position to teachers whose positions are terminated, the
Association's proposal obviously would create a preference in favor of
applicants within the system. Again the matter of filling teaching positions
is governed by Section 161(5), and the Association's proposal which would
limit the School Board's authority in this area is non-negotiable.[fn4]
The School Board properly refused to bargain about the third paragraph of the
proposal, and we will order that the Association's prohibited practices
complaint be dismissed.
Having concluded that the School Board properly refused to bargain about
the Association's proposal, we turn to the School Board's charge that the
Association
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3/ The portion of Section 161(5) construed in M.S.A.D. No. 36 states:
"A superintendent of schools . . . shall nominate all
teachers, subject to such regulations governing salaries and
the qualifications of teachers as the school committee or school
directors shall make, and upon the approval of nomination by
said committee or directors, he may employ teachers so nominated
and approved for such terms as he may deem proper, subject to the
approval of the school committee or school directors."
4/ Our holdings of course should not be read to mean that the mere
reference in a statute to a particular issue automatically means that the
issue is a non-negotiable subject of bargaining, for the law is to the
contrary: "the mere fact that a particular subject matter may be covered by
legislation does not exclude it from collective bargaining." Superintending
School Committee of Bangor v. Bangor Education Association, 433 A.2d 383, 386
(Me. 1981). It is only because the power to terminate and fill teaching
positions is explicitly reserved by statute for school boards that the
Association's proposal is non-negotiable, for
"'there is no reason why the mandatory provision
[for collective bargaining] should be limited, in any
way, except in cases where some other applicable statu-
tory provision explicitly and definitively prohibits
the public employer from making an agreement as to a
particular term or condition of employment.' "
State v. MLRB, 413 A.2d 510, 516 (Me. 1980) quoting Board of Education v.
Associated Teachers of Huntington, 30 N.Y.2d 122, 129, 331 N.Y.S.2d 17,
23, 202 N.E.2d 109, 113 (1972).
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violated Section 964(2)(B) by insisting that its proposal be negotiated. As
previously noted, it is settled law that a party commits a per se violation of
its duty to bargain by insisting to impasse that a non-mandatory subject of
bargaining be negotiated; "such conduct is, in substance, a refusal to bargain
about the subjects that are within the scope of mandatory bargaining." NLRB
v. Wooster Division of Borg-Warner Corp., 356 U.S. at 349; see also M.S.A.D.
No. 43 Teachers Association, Docket No. CV 79-541 at 6.
Here it is plain that the Association insisted to the point of impasse
that its seniority proposal be negotiated; the Association insisted from the
beginning of bargaining in September, 1981 up to the time of the hearing of
this case on April 14, 1982 that the proposal be negotiated, and it also
instituted this prohibited practices proceeding and the first step of the
dispute resolution procedures set forth in Section 965 as part of its efforts
to get the School Board to bargain about the proposal. The Association's
contention that it believed in good faith that its proposal was a mandatory
subject of bargaining offers no defense to the charge that it violated Section
964(2)(B); as the Kennebec County Superior Court held at page 6 of the
M.S.A.D. No. 43 Teachers Association case, "the per se rule is applied
entirely apart from any determination of whether the bargaining agent acted in
good or bad faith. Thus, the Association's claim that they acted in good
faith is irrelevant." See also NLRB v. Davison, 318 F.2d 550, 554 (4th Cir.
1963) ("The good faith of the insisting party is no defense"). Moreover, the
Association's claim of good faith is suspect in that the Supreme Court's
M.S.A.D. No. 36 decision, which was decided prior to the commencement of
negotiations in this case, should have told the Association that the
negotiability of its proposal was highly questionable. This is particularly
true with regard to the third paragraph of the proposal. We conclude that the
Association committed a per se violation of Section 964(2)(B) by insisting to
impasse that its non-negotiable seniority proposal be bargained. We will
order pursuant to Section 968(5)(C) that the Association cease and desist from
insisting that the School Board bargain about its seniority proposal.
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. Section 968(5), it is hereby ORDERED:
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1. That the Brunswick Teacher Association's prohibited
practices complaint filed in this proceeding on
February 18, 1982 is dismissed.
2. That the Brunswick Teacher Association, and its agents,
members and bargaining agents, cease and desist from
insisting that the Brunswick School Board bargain about
the Association's seniority proposal.
Dated at Augusta, Maine this 9th day of August, 1982.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
Edward H. Keith, Chairman
/s/_______________________________________
Don R. Ziegenbein, Employer Representative
/s/_______________________________________
Harold S. Noddin, Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. Section
968(5)(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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