Ross and Portland Teachers Association v. Portland School Committee, No. 83-04, Interim Order on Motion to Quash Subpoena (Dec. 6, 1982); Decision and Order, 6 NPER 20-14038 (Aug. 29, 1983) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-04 ________________________________ ) JEANNIE ROSS and PORTLAND ) TEACHERS ASSOCIATION, ) ) Complainants ) ) ORDER ON RESPONDENTS' v. ) MOTION TO QUASH ) SUBPOENA PORTLAND SUPERINTENDING SCHOOL ) COMMITTEE OF THE CITY OF ) PORTLAND and PETER GREER, ) ) Respondents ) ________________________________) On October 20, 1982, the Complainants requested the Board to issue a subpoena duces tecum ordering Dr. Peter Greer to produce several documents prior to the Board's hearing in this matter. The subpoena was issued on October 21, 1982, and Dr. Greer was ordered to produce, among others, the following items which are in dispute herein: 1. Any documents which reflect enrollment in English classes in Portland High School for the years 1979-80, 1980-81, and 1981-82. 2. All class schedules of all students enrolled in Portland High School in the school year 1981-82. 3. Personnel files (including central office and individual school files) of all English teachers employed by the Portland School system who are certified to teach English in grades 7 through 12. 6. Any information in the possession of Eve Bither and/or Dr. Greer regarding Jeannie Ross. A meeting between the parties with a representative of the Board was held on October 29, 1982. Although the subpoena was never served, counsel for the Respondents waived formal service thereof. At said meeting, counsel for the Respondents provided the Complainants' attorney with documents in partial satisfaction of the subpoena request and said counsel stated that they would be filing a Motion to Quash Subpoena as to those items listed above. The Respondents filed a Motion to Quash Subpoena on November 3, 1982. On -1- November 3, 1982, the Board, with Alternate Chairman Donald W. Webber pre- siding together with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin, held a hearing on the merits of said Motion to Quash Subpoena. The Complainants were represented by Donald F. Fontaine, Esq., and the Respondents were represented by Hugh G. E. MacMahon, Esq., and Harry R. Pringle, Esq. The parties were given full opportunity to present evidence and to make argument. Both parties filed appropriate post-hearing briefs which have been considered by the Board. DECISION Item 1: Any documents which reflect enrollment in English classes in Portland High School for the years 1979-80, 1980-81, and 1981-82. During the meeting of October 29, 1982, the Respondents, in partial satisfaction of this item, provided the Complainants with summary documents showing the course name, the teacher, and the number of enrolled students for each English course offered at Portland High School, for the 1979-80, 1980-81 and for the Fall semester of the 1981-82 school years. The Com- plainants have requested that the Respondents satisfy the request by pro- viding similar documents for the Spring semester of the 1981-82 school year. In response to this request, the Respondents have asserted: "As Respondents stated at the hearing on this motion, the student enrollments in the various classes at Portland High School for the second semester of the 1981-82 school year can only be ascertained from student grade reporting sheets for each class." In deciding the propriety of the Complainants' request, the Board must weigh the potential benefit, accruing from the provision of the documents, to the Complainants balanced against the burden which would be imposed upon the Respondents if production thereof was ordered. The Board believes that student grade reporting sheets are educational records, within the meaning of 20 U.S.C. 1232g(a)(4)(A). Under the provisions of 20 U.S.C. 1232g(b)(2)(B), said records may be produced in response to "any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency. The Complainants have not averred any specific -2- need for the requested documents while the onerous burden of notification of their release, to parents and to the students, by the Respondents is patent. The Board, therefore, determines that the Respondents have no duty to provide student grade reporting sheets, for each class involved, to the Complainants in satisfaction of item 1 of the subpoena. The Board notes that the summary documents, which have been provided by the Respondents in partial satisfaction of item 1, do not constitute "educational records" within the meaning of the Federal statute cited above. The summary document, showing course and teacher name, class period, and number of students enrolled in each course for the Spring semester of the 1981-82 school year would not be burdensome for the Respondents to produce. If such a document, identical in format to those already produced by the Respondents, exists, the Board will order that it be produced and supplied to the Complainants. Item 2: All class schedules of all students enrolled in Portland High School in the school year 1981-82. At the hearing on the Motion to Quash Subpoena, the Complainants clarified their request contained in item 2 above. Complainants' counsel stated that the documents being sought thereby were class request forms completed by the students at the Portland High School during March of 1982. The Board believes that the subpoenas duces tecum must state, with reasonable clarity and particularity, the documents sought thereby. The above des- cription does not satisfy this requirement. Class schedules were provided and class request forms were not clearly within the scope of item 2 as drafted. We must, therefore, quash the subpoena as it relates to item 2 thereof. Item 3: Personnel files (including central office and individual school files) of all English teachers employed by the Portland School system who are certified to teach English in grades 7 through 12. The requested information is clearly confidential, within the scope of 20 M.R.S.A. 807(2). In order to release said files to the Complainants, the Respondents would first have to secure the written permission of the teachers involved. The Complainant Union, as the exclusive bargaining agent for all of the teachers involved, is well aware of their identity. The Union -3- has, however, made no effort to secure permission from said teachers, authorizing review of the files by the Complainants. If the Complainants had secured said permission, the Respondents would have to provide the files. Since both parties have equal access to the teachers involved, in order to secure their permission to authorize release of the files and recognizing the confidential nature of said records, the Board will quash item 3 of the subpoena. Item 6: Any information in the possession of Eve Bither and/or Dr. Greer regarding Jeannie Ross. This request is so vague and indefinite that it falls into the classic category of being a "fishing expedition." The Complainants' counsel, at the hearing before the Board, stated that he could not assert any specific reason to believe that such information, beyond Ms. Ross' personnel file or notes taken during collective bargaining sessions, even exist. The Complainants have stated that they are not seeking either Ms. Ross' personnel file or notes made during collective bargaining by either Ms. Bither or Dr. Greer. Since the Complainants' request is vague and indefinite and since no showing of need therefor has even been attempted by the Complainants, we find the request to be unreasonable and it will be quashed. ORDER The Maine Labor Relations Board, pursuant to the authority granted in 26 M.R.S.A. 968(6) ORDERS: 1. That item 1, listed in a Subpoena duces tecum issued by the Board on October 21, 1982, be enforced to the extent that the information to be produced by Dr. Peter Greer for the Spring semester of the 1981-82 school year is of the same form and nature as that already provided by the Respondents to the Complainants, to wit: summary sheets listing the name of each course, the teacher's name, and the number of students enrolled in each case. 2. Items 2, 3, and 6 of the aforesaid Subpoena duces tecum, be and hereby are quashed. -4- Dated at Augusta, Maine, this 6th day of December, 1982. MAINE LABOR RELATIONS BOARD /s/______________________________ Donald W. Webber Alternate Chairman /s/______________________________ Don R. Ziegenbein Employer Representative /s/______________________________ Harold S. Noddin Employee Representative -5- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-04 Issued: August 29, 1983 _____________________________________ ) JEANNIE ROSS and PORTLAND TEACHERS ) ASSOCIATION, ) ) Complainants ) ) v. ) DECISION AND ORDER ) PORTLAND SUPERINTENDING SCHOOL ) COMMITTEE OF THE CITY OF PORTLAND ) and PETER GREER, ) ) Respondents ) ____________________________________ ) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on July 29, 1982, by Jeannie Ross and the Portland Teachers Association ("Union"). The Union's complaint alleges that the Portland Superintending School Committee of the City of Portland ("Employer"). acting by and through Peter Greer, Superintendent of Schools of the City of Portland, violated 26 M.R.S.A. Sections 964(l)(A), (B) and (C), by involuntarily transferring Jeannie Ross, the President of the Union, from Portland High School to King Middle School. The Employer, on August 19, 1982, filed an answer, denying that it had violated any section of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 961, et seq. and, because the subject matter of the complaint is presently pending in the grievance procedure, provided by the applicable collective bargaining agreement between the Employer and the Union, to defer consideration of this dase until the same has been resolved by said grievance procedure. -1- A pre-hearing conference on the case was held on September 28, 1982, Alternate Chairman Donald W. Webber presiding. On October 1. 1982, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. On October 20, 1982, the Union requested the Board to issue a subpoena duces tecum, ordering Dr. Peter Greer to produce several documents prior to the Board's hearing on the merits in this matter. The subpoena was issued on October 21, 1982. A meeting, between the Union and the Employer with a representative of the Board present, was held on October 29, 1982. Although the subpoena was never served, counsel for the Employer waived formal service thereof. At the meeting of October 29, 1982, counsel for the Employer provided the Union's attorney with documents in partial satisfaction of the subpoena. The Employer, on November 3, 1982, filed a Motion to Quash Subpoena. On November 3, 1982, the Board, with Alternate Chairman Donald W. Webber presiding together with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin, held a hearing on the Employer's Motion to Quash Subpoena. The Employer was represented by Hugh G. E. MacMahon, Esquire, and Harry R. Pringle, Esquire, and the Union was represented by Donald F. Fontaine, Esquire. The parties were given full opportunity to present evidence and to make argument. Both parties filed post-hearing briefs which were considered by the Board. On December 6, 1982, the Board issued an Order on Respondent's Motion to Quash Subpoena, the contents of which is incorporated herein by reference. Hearings on the merits of this case were held on December 15, 1982, January, 14, 1983, and February 4, 1983, Alternate Chairman Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and -2- Employee Representative Harold S. Noddin. Ms. Ross and the Union were represented by Howard T. Reben, Esquire, and the Employer was represented by Harry R. Pringle, Esquire. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. The parties filed post hearing briefs, which have been considered by the Maine Labor Relations Board ("Board"). JURISDICTION The Portland Teachers Association is the recognized exclusive bargaining agent, within the meaning of 26 M.R.S.A. Sedtions 962(2) and 968(5)(B), for a bargaining unit composed of all social workers employed by the Portland Superintending School Committee of the City of Portland and all certificated employees of the Portland School System, excluding the Superintendent, Assistant Superintendents, Principals, Assistant Principals, Director and Assistant Director of Special Services. Coordinator of Evaluation and Data Management and Director of PREP. Jeannie Ross, at all times relevant hereto, has been the President of the Portland Teachers Association and has been a member of the foregoing bargaining unit. Ms. Ross is a public employee, within the definition of 26 M.R.S.A. Section 962(6) and as that term is applied in 26 M.R.S.A. Section 968(5). The Portland Superintending School Committee of the City of Portland is the public employer, within the definition of 26 M.R.S.A. Section 962(7), of the employees who are included in the foregoing bargaining unit. At all times relevant hereto, Dr. Peter Greer has been the Superintendent of Schools of the City of Portland and the agent or employee of the Portland Superintending School Committee of -3- the City of Portland. Since the allegations herein concerning Dr. Greer allegedly arise out of and were performed by him during the course of his employment with the Portland Superintending School Committee of the City of Portland, Dr. Peter Greer is a public employer, within the meaning of 26 M.R.S.A. Section 962(7). The jurisdiction of the Maine Labor Relations Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Section 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. The Portland Teachers Association is the recognized exclusive bargaining agent, within the meaning of 26 M.R.S.A. Sections 962(2) and 968(5)(B), for a bargaining unit composed of all social workers employed by the Portland Superintending School Committee of the City of Portland and all certificated employees of the Portland School System, excluding the Superintendent, Assistant Superintendents, Principals, Assistant Principals, Director and Assistant Director of Special Services, Coordinator of Evaluation and Data Management and Director of PREP. 2. Jeannie Ross, at all times relevant hereto, has been the President of the Portland Teachers Association and has been a member of the bargaining unit, noted in paragraph 1 above. Ms. Ross is a public employee, within the definition of 26 M.R.S.A. Section 962(6). 3. The Portland Superintending School Committee of the City of Portland is the public employer, within the definition of 26 M.R.S.A. Section 962(7). of the employees who are included in the bargaining unit. noted in paragraph 1 above. -4- 4. Dr. Peter Greer, the Superintendent of Schools of the City of Portland, is the agent or employee of the Portland Superintending School Committee of the City of Portland. Since the factual allegations in this case, concerning Dr. Greer, allegedly arose out of and were performed by him during the course of his employment with the Portland Superintending School Committee of the City of Portland, Dr. Greer is a public employer, within the meaning of 26 M.R.S.A. Section 962(7). 5. Ms. Ross was first permanently hired by the Portland School System in 1974 and taught eighth grade at Lincoln Junior High School for one year, taught for three years at Deering High School, taught at King Junior High School for one year, and, prior to June 18, 1982, taught for three years at Portland High School. 6. During her term of office as President of the Portland Teachers Association, Ms. Ross has been a very active, aggressive, and effective union president. Ms. Ross has been involved in the filing and processing of approximately 15 to 20 controversial grievances, during said tenure. In addition thereto, Ms. Ross has often been successful in organizing teachers, parents, and the general public and securing their appearance at public meetings of the School Committee. Ms. Ross's actions have often been instrumental in persuading the School Committee to modify or reverse decisions made by the Superintendent and his staff. 7. During her employment with the Portland School System, Ms. Ross has consistently received excellent performance evaluations, from her superiors, for her classroom teaching. 8. Over the past three years, the Portland School System has been faced with a severe financial crisis and has been forced to trim its budget by over Three Million Dollars. -5- 9. In an effort to minimize the effect of the financial situation, noted in the preceding paragraph, upon its employees, the Portland School Committee's first consideration, in implementing staff reductions, was to accomplish the same through attrition rather than through layoffs. This policy of reduction by attrition involved resignations and retirement of staff members. Three early retirement incentive plans were adopted to further spur attrition. 10. Since reduction of staff by attrition did not, during the past three years, result in sufficient financial savings, the School Committee then resorted to a policy of non-renewal of probationary employees. 11. When it became evident that the actions, noted in paragraphs 9 and 10 hereof, would be insufficient to offset the budgetary cuts faced by the School Committee, the Committee decided that it would have to lay off some continuing contract (non-probationary) employees. To minimize the number of employees laid off, the School Committee and the Superintendent attempted to transfer employees, to the maximum extent feasible within the Portland School System, from positions, whose duties could be discontinued or absorbed by other employees, to the positions vacated by resigning, retiring, or laidoff probationary employees. 12. Between 1979 and 1982, there were 85 secondary school staff layoffs and 142 secondary school staff transfers in the Portland School System. The great majority of said transfers were involuntary; that is to say, they were not initiated by the affected employees. 13. When it became evident, in the spring of 1981, that continuing contract teachers might have to be laid off, the Superintendent and his staff developed a "points list," in an attempt to quantify the -6- qualitative abilities of the professional teaching staff of the Portland School System. 14. The Superintendent recommended to the School Committee that said "points list" be used to determine which continuing contract teachers were to be laidoff, in the Spring of 1981. 15. Ms. Ross, through appearances and statements made through the media, was able to rally a large group of teachers, parents, and members of the public to attend a public meeting of the School Committee. 16. At the School Committee meeting, mentioned in the preceeding paragraph, Ms. Ross, other teachers, parents, and members of the public spoke at length about inaccuracies in the "points list" and about the unfairness of using said list to lay off any teacher. The Committee, initially, modified said list and, subsequent to further argument from Ms. Ross and others, decided to abandon the list, except in the case of one teacher who was laid off. 17. During the spring of 1981 and in order to save money, the administration of the Portland School Department decided to discontinue the position of department head in the high schools (each department head supervised the teachers in one academic discipline) and to replace said positions with those of cluster coordinator, who would each supervise teachers in two or more academic disciplines. 18. The action, described in the preceding paragraph, resulted in a good deal of debate and animosity, both between the Portland Teachers Association and the Portland School System administration and within the Portland Teachers Association, between the former department heads and the new cluster coordinators and each group's respective supporters. -7- 19. During the negotiations which resulted in the 1981-1984 collective bargaining agreement between the Portland Teachers Association and the Portland School Committee, the negotiators for each side exchanged proposals and counter-proposals concerning the salary differential to be paid to the cluster coordinators. At least during the mediation process, if not beyond, the negotiations were conducted in "blackout" conditions, where neither team was to discuss the bargaining with anyone who was not immediately involved in the bargaining process. 20. Sometime after the conclusion of mediation and before the final tentative agreement on the successor collective bargaining agreement was reached, Assistant Superintendent for Secondary Education Eve Bither did discuss the specific cluster coordinator salary differential offers and counter-offers with a person who was not directly involved in the bargaining process. Said offers and counter-offers, as a result, became known to at least one of the cluster coordinators. 21. Said cluster coordinator then confronted Ms. Ross, as President of the Portland Teachers Association, and stated that she had lost all confidence in Ms. Ross and terminated what had been a close personal friendship. 22. Upon learning of the "leak" in bargaining information, cited in paragraph 20 above, Ms. Ross insisted that Ms. Bither apologize for having revealed said information, as a condition precedent to continued negotiations. 23. Although feeling that she had done no wrong in revealing the information, Ms. Bither, in order to avoid embarrassment to the Portland Teachers Association's negotiators, apologized for the "leak" to the -8- Portland Teachers Association, the former department heads, and the new cluster coordinators, at both Portland High School and at Deering High School, in the fall of 1981. 24. Over the past 1 1/2 years, Ms. Ross served on an Evaluation Task Force, chaired by Dr. Greer and whose members included teachers, administrators, and members of the general public. During Task Force meetings, Ms. Ross and Dr. Greer often had lengthy and heated discussions and disagreements over several issues before the Task Force. Dr. Greer chided Ms. Ross for talking with and passing notes to another Association representative on the Task Force, during meetings. 25. During the 1981-1982 school year, Ms. Ross repeatedly failed to perform non-teaching "supervisory" duties at Portland High School. Ms. Ross was scheduled to supervise the cafeteria for two periods each day and to patrol a hallway at the school one period each day. Most of the other English teachers at Portland High School, like Ms. Ross, had three assigned periods of "supervisory" duties each day. 26. Ms. Ross complained that 40 degree temperatures in the hallways were injurious to her health and precluded her performing her hallway duties. After receiving a doctor's note to this effect, Ms. Ross was relieved of her hallway duty and assigned to oversee a study hall, one period each day. Ms. Ross faithfully discharged her study hall responsibilities. Dr. Greer, eventually, ordered that the heat be turned back on in the hallways of Portland High School. 27. On one occasion during the 1981-1982 school year, Ms. Ross ignored a fire alarm at the school and continued teaching her class. Upon being advised to do so by the Assistant Principal, Ms. Ross escorted her class from the building. As had been the case on many -9- previous occasions. the alarm was a false alarm. 28. On March 19, 1982, a water pipe burst in an area of Portland High School, near to where Ms. Ross was attempting to conduct a class. Students in the area of the burst pipe were boisterous and Ms. Ross, finding it impossible to continue the class, dismissed her students and sent them home, approximately 1/2 hour prior to the end of the school day. Ms. Ross did not, as was normal practice, consult with or even inform either the Principal or the Assistant Principal, prior to dismissing her students. Other classes, in the area of the burst pipe, were conducted until the end of the school day. 29. The Principal of Portland High School gave Ms. Ross a written reprimand, for the conduct noted in paragraph 25 hereof, on January 5, 1982. Ms. Ross filed a grievance over said reprimand and the grievance was settled, by agreement of the parties at the Superintendent's level. 30. As a result of the facts cited in paragraphs 25, 27, 28 and 29 hereof, a poor working relationship developed between Ms. Ross and the Principal of Portland High School. 31. During her last year at Deering High School, the 1977-1978 school year, Ms. Ross consistently had problems discharging the type of "supervisory" responsibilities as were noted in paragraph 25 hereof. 32. Although a member of the Portland Teachers Association during her service at Deering High School, Ms. Ross was not prominent at all in union affairs, at that time. 33. As a result of the facts contained in paragraph 31 above, Ms. Ross was involuntarily transferred from Deering High School to King Junior High School in 1978 for the 1978-1979 school year. 34. During the past four years, the student enrollment at Portland -10- High School has declined by approximately 100 students per year, from 1709 students to approximately 1328 students for the 1982-1983 school year. 35. As a result of the declining enrollment at Portland High School, the Assistant Superintendent for Secondary Education recommended that 1 English position, 1 mathematics position, and 1 social studies position be eliminated at Portland High School. The Superintendent transmitted said recommendation to the School Committee and, on April 28, 1982, said Committee voted to implement said staff reductions. Ultimately, for the reason stated above, two English positions had to be eliminated at Portland High School. 36. During the spring of 1982, one probationary teacher resigned at Deering High School and the contract of one probationary teacher at King Middle School was terminated. These events resulted in two openings for English teachers within the Portland School System: one at Deering High School and one at King Middle School. 37. Since there was a surplus of 2 English teachers at Portland High School and 2 English teacher vacancies within the Portland School System, the Superintendent of Schools and the Assistant Superintendent for Secondary Education decided to transfer 2 English teachers from Portland High School to fill the 2 vacancies. 38. During the spring of 1982 and because of the financial problems experienced by the Portland School System, the Superintendent reluctantly recommended that 5 high school English positions be eliminated. 39. Among the incumbent employees. occupying the positions mentioned in the preceeding paragraph and selected for layoff, were Janet Ross, -11- Ms. Ross's sister, and Maryann Pendleton, the wife of the President of the Portland Administrators Association. Although Ms. Pendleton had relatively little seniority with the Portland School System, Janet Ross had 2 more years of seniority with the Portland School System than did several English teachers who were not recommended for layoff. 40. The Portland School Committee held a public meeting to discuss and consider the Superintendent's layoff proposal. Ms. Ross, several teachers, parents, and members of the public attended said meeting and spoke against the layoffs. The Portland School Committee then voted not to lay off any of the English teachers. 41. Article XXVII(G) of the 1981-1984 collective bargaining agreement between the Portland Teachers Association and the Portland Superintending School Committee of the City of Portland provides: "The President of the Association shall be entitled to a leave of absence for the duration of the President's term without loss of benefits or salary step or scale. Leave for a teacher serving as President shall consist of two-fifths of the regular teaching or work day for an elementary teacher or other personnel and two teaching periods for a secondary teacher. Any such leave scheduling shall be mutually arranged between the President and the building principal and shall be at the beginning or end of the work day. Planning periods shall not be considered as time off for purposes of this article and shall not be used for Association business." 42. Since the normal teaching load of English teachers at Portland High School. during the 1981-1982 school year, was four classes per day per teacher, Ms. Ross taught 2 classes per day, under the language of the collective bargaining agreement article cited in the preceding paragraph. 43. In light of the facts noted in paragraphs 8, 9, 10, 11, 12, 34, 35, 36 and 37 above, the Assistant Superintendent for Secondary Education decided, in June, 1982, to transfer a Mr. Coyne to fill the -12- vacancy at Deering High School and Ms. Ross to fill the vacancy at what was now called the King Middle School. The King Middle School was formerly called the King Junior High School. Neither transfer was a voluntary transfer. 44. The transfers, mentioned in the preceding paragraph, did not result in a loss of earnings or other benefits for the affected employees. 45. The transfer, mentioned in paragraph 43 hereof, resulted in a change of working conditions for Ms. Ross since she would have to develop a new curriculum for the seventh grade English position at King Middle School, without being paid additional compensation therefor. 46. Mr. Coyne, a ninth grade English teacher at Portland High School, had previously taught ninth grade English at Jack Junior High School. During the 1981-1982 school year, Mr. Coyne had been on a sabbatical leave of absence from the Portland School Department; therefore, his transfer to Deering High School did not result in any staff disruption at Portland High School. 47. Ms. Ross was not considered as a candidate for transfer to Deering High School because of her prior problems with "supervisory" responsibilities at that school, as noted in paragraphs 31 and 33, supra. 48. During her one year of service at King Junior High School, Ms. Ross received an unqualifiedly excellent performance evaluation from the school's Principal, Mr. Stokes. Mr. Stokes is still the Principal of the King Middle School. 49. While teaching at King Junior High School, Ms. Ross enjoyed an excellent working relationship with both the Principal and the Assistant Principal, Mr. Pressey. Mr. Pressey is still the Assistant Principal of -13- the King Middle School. 50. On June 18, 1982, Ms. Bither and the Principal of Portland High School met at Portland High School with Ms. Ross and her union representative, Mr. Pierson. At said meeting, Ms. Bither informed Ms. Ross of her decision to transfer Ms. Ross to the King Middle School for the following school year. 51. Ms. Bither, at the meeting mentioned in the preceding paragraph, gave the following as the reasons for her decision: a. Ms. Ross had a reduced teaching load; b. Ms. Ross had had a successful year at King Junior High School; c. Ms. Ross had a good relationship with the administrators at King Junior High School; d. Ms. Ross related well to the age group of the students she would be teaching at King Middle School: and e. Ms. Ross had had an unhappy year at Portland High School. 52. In response to Ms. Bither's explanation, cited in the preceding paragraph, Ms. Ross stressed that she had developed a speech program at Portland High School and was the only person then teaching speech at that school. 53. Ms. Bither, in response to Ms. Ross's statement, noted in the preceding paragraph, stated that only 22 students had signed up to take speech for the next year and that other teachers, who had taught speech in the past, could do so the next year. 54. Mr. Pierson and Ms. Ross then accused Ms. Bither of transferring Ms. Ross only because of her union activities. The only reason Ms. Ross carried a lighter teaching load was the leave time provided to the -14- President of the Union by the collective bargaining agreement. Ms. Bither denied Mr. Pierson's and Ms. Ross's allegation concerning union activities playing any part in the transfer decision. 55. At the end of the meeting, Ms. Bither agreed to meet again with Ms. Ross, on June 21, 1982, to discuss the transfer decision further. 56. On June 21, 1982, Ms. Ross; Martin Ridge, her personal attorney; Beth Supranovich, President of the Maine Teachers Association; Dr. John Marvin, Executive Director of the Maine Teachers Association; Mr. Pierson, grievance chairperson for the Portland Teachers Association; Sharon Bresler, chief negotiator for the Portland Teachers Association; and John Alfano, the District 2 UniServ Director for the Maine Teachers Association, met at Ms. Bither's office at the Portland School Department Central Office with Ms. Bither and the Principal of Portland High School. 57. During the meeting mentioned in the preceding paragraph, Mr. Ridge asked Ms. Bither several questions concerning the reasons for the transfer decision. Ms. Bither declined to answer most of Mr. Ridge's questions; however, she did deny that the transfer was in any way occasioned by Ms. Ross's union activities. 58. Ms. Ross then appealed the transfer decision to the Superintendent of Schools. 59. On June 23, 1982, Superintendent Greer, Ms. Bither, and Polly Ward, Personnel Administrator for the Portland School System, met in Dr. Greer's office with Ms. Ross, her attorney Mr. Ridge, and Attorney Howard Reben. 60. At the meeting mentioned in the preceding paragraph. Dr. Greer gave the following reasons as the justification for the transfer -15- decision: a. The financial situation of the Portland School System; b. Declining enrollments at Portland High School, resulting in a surplus of two English teachers; c. An opening at King Middle School for an English teacher; d. Ms. Ross's unhappy time at Portland High School; e. Ms. Ross's successful year at King Junior High School; f. Ms. Ross's good relationship with the administrators at King; g. Ms. Ross's problems with the administration and with staff members at Portland High School; and h. Since Ms. Ross began as a Title I reading aide, it would be appropriate to transfer her to a Title I school. 61. In response to Ms. Ross' questions, Dr. Greer stated that the "staff problems" at Portland High School related to the cluster coordinator, mentioned in paragraph 21 hereof. Dr. Greer then promised to investigate this reason and the facts behind it. 62. In the course of the investigation, noted in the preceding paragraph, Dr. Greer received conflicting reports of what had happened; therefore, he rejected this reason as providing any justification for the transfer. 63. Ms. Ross indicated that, although at one time she had been hired with Title I funds, she had taught mathematics and had not been a reading aide. Dr. Greer then rejected the proffered reason as providing any justification for the transfer. 64. At the close of the meeting, Dr. Greer promised that a new search would be undertaken to find a volunteer to fill the opening at the King Middle School. Dr. Greer placed a caveat on the search, -16- however, that even if someone volunteered, he could reject the volunteer. All voluntary transfers in the Portland School System are made on this basis. 65. One English teacher at Portland High School reluctantly volunteered to be transferred to the King Middle School. 66. The Assistant Superintendent for Secondary Education, with the approval of the Superintendent of Schools, rejected said volunteer's offer. Valid educational reasons mandated that the said volunteer, mentioned in the preceding paragraph, remain and teach at Portland High School for the following school year. 67. Ms. Ross's transfer to the King Middle School made good educational sense because she possesses many special qualities which make her especially effective as a seventh grade teacher. 68. Although several other English teachers at Portland High School had more junior high school experience than Ms. Ross, valid educational and/or extracurricular reasons mandated that they remain and teach at Portland High School for the following school year. 69. On July 6, 1982, Dr. Greer wrote a letter to Ms. Ross affirming the transfer decision. The reasons outlined by Dr. Greer in support of his decision, were as follows: "I can appreciate your desire, and indeed that of any teacher, to be transferred only upon request. That is not always possible, however. This year, due to the severe budget reductions forced upon the school department and the large number of staff reductions, transfers have unfortunately become unavoidable. Yours is one of many such transfers. "At Portland High School specifically, Mrs. Bither had no choice but to transfer one English teacher to King Middle School for the coming year. It was Mrs. Bither's professional judgement, in which I concur, that you should be selected for that transfer based upon your previous and successful experience at King and the many excellent special qualities you have to offer students at the middle school level. In -17- addition the past year at Portland High School has, as you know, been less than ideal in terms of harmonious relations with the administration. I am hopeful that a different environment will provide a fresh start for you in addition to meeting the needs of the school system." 70. During a discussion with Dr. Greer, concerning the transfer, in the spring of 1982, Ms. Ross asked: "Is this a life sentence?" Dr. Greer responded: "I don't punish people eternally." 71. On July 27, 1982, the Complainants herein filed a complaint pursuant to Rule 80B of the Maine Rules of Civil Procedure against the Respondents herein, to seek review of Ms. Ross's involuntary transfer by the Cumberland Superior Court. 72. On July 9, 1982, the Portland Teachers Association filed a grievance, pursuant to Article X of the applicable collective bargaining agreement between the Portland Teachers Association and the Portland School Committee, to challenge Ms. Ross's involuntary transfer, which is the subject matter of this action. DECISION The involuntary transfer in this case does not rise to the level of being an imposition of discipline by the Employer against Ms. Ross. The facts do, however, indicate that the transfer resulted in Ms. Ross' having to develop a new curriculum for the seventh grade English position at the King Middle School and, therefore, involved a change in Ms. Ross' working conditions. The Union has alleged that said change in working conditions was occasioned by the Employers' discrimination against Ms. Ross because of her Union activities. The Employers have -18- argued, in the alternative, that the Union has failed to establish a prima facie case of discrimination in this matter or, if the Union did establish such a prima facie showing, Ms. Ross's transfer was effected for legitimate educational reasons and would have occurred regardless of Ms. Ross's Union activities. The Board is, therefore, clearly faced with a situation where the Employer's actions may have resulted from "mixed motives": some legitimate and some which are contrary to the Act. In considering such "mixed motive" cases, this Board has recently adopted, as the controlling analysis therein, the Wright Line standard, promulgated by the National Labor Relations Board, Wright Line and Bernard R. Lamoureux, 251 NLRB 1083 (1980), which was later upheld by the Supreme Court of the United States, National Labor Relations Board v. Transportation Management Corp., ____ U.S. ____, 103 S.Ct. 2469 (June 15, 1983). Allen C. Holmes, et al. v. Town of Old Orchard Beach, et al., MLRB No. 82-14, at 11 (Sept. 27, 1982). In Transportation Management Corp., supra, Mr. Justice White, writing for a unanimous Court, described the National Labor Relations Board's Wright Line test as follows: "The Board held that the General Counsel, of course, had the burden of proving that the employee's conduct protected by Section 7 was a substantial or a motivating factor in the discharge. Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of Sections 8(a)(1) and 8(a)(3) by proving by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event. It thus became clear, if it was not clear before, that proof that the discharge would have occurred in any event and for valid reasons amounted to an affirmative defense on which the employer carried the burden of proof by a preponderance of the evidence." 103 S.Ct., at 2473 (footnotes omitted). It is important to note that -19- "Section 7," 29 U.S.C. Section 157, cited by the.United States Supreme Court above, is analogous to Section 963 of the Act and Sections 118(a)(1)," 29 U.S.C. Section 158 (a)(1), and "8(a)(3)," 29 U.S.C. Section 158(a)(3), are analogous to Sections 964(1)(a) and (b), respectively. These latter two sections of the Act were allegedly violated by the Employers herein. The United States Supreme Court, 103 S.Ct., at 2475, went on to uphold the validity of the National Labor Relations Board's use of the Wright Line test in "dual motive" situations. Having adopted the same in the Old Orchard Beach, supra, case, we will apply the Wright Line test to the facts in this "dual motive" case. Our first line of inquiry, under the Wright Line test, is whether the Union has established, by a preponderance of the evidence, that Ms. Ross's union activity was a motivating factor in the transfer decision. We hold that the Union has met its burden of establishing a prima facie case. The Employers' action, in transferring Ms. Ross involuntarily from Portland High School to the King Middle School, was motivated by the Employers' anti-union animus. Our holding is mandated by three separate facts. First, at the June 18, 1982 meeting, the Assistant Superintendent for Secondary Education informed Ms. Ross that one of the reasons for the transfer was that Ms. Ross taught fewer academic courses than did the other English teachers at Portland High School. The sole reason that Ms. Ross taught only two courses was that, as the President of the Union, the applicable collective bargaining agreement afforded her two teaching periods per day leave to perform Union functions. The transfer was, therefore, based upon Ms. Ross's Union activities. Second, the reasons given to Ms. Ross, as the grounds for the transfer, changed from those given at the June 18th meeting, at the June 23rd -20- meeting and again were different in the July 6th letter from the Superintendent. We have, in Teamsters Local Union No. 48 v. Baker Bus Service, Inc., MLRB No. 79-70, at 7 (March 3, 1980), held that reasons, proffered by an employer to justify its actions, may be deemed pretextual if, among other factors, said stated reasons vary during successive explanations thereof. Third, the Superintendent's comment, in response to Ms. Ross's question about the transfer being a "life sentence," that "I don't punish people eternally," may have been illustrative of his subjective intent rather than just an unfortunate choice of words. This comment certainly illustrates that Dr. Greer might have viewed the transfer as punitive. Several other facts in this case support our above holding. Ms. Ross, in the opinion of both management officials and bargaining unit employees, has been an aggressive, articulate, and effective Union President. As a result of Ms. Ross's efforts in mobilizing the support of teachers, parents, and members of the public, the Portland School Committee has often been persuaded to modify or reverse the decisions of the Superintendent and his staff. Two such occasions were the "points list" episode, in the spring of 1981, and the staff reduction controversy, involving Ms. Ross's sister among others, in the spring of 1982. Since Ms. Ross's sister had a good deal more seniority than several staff members who were not slated to be laid off, the decision to lay her off can be viewed as an attempt to retaliate against Ms. Ross through her sister. Another relevant factor concerns Ms. Bither's apology for the negotiations "leak." Said apology was made as a result of Ms. Ross's demand therefor, as a condition precedent to resuming negotiations. In making the public apology to the affected employees, -21- Ms. Bither sought to avoid embarrassment for the Union's negotiators. Ms. Bither did not feel that she had violated the "blackout" or any other rules, yet she made the public apology. Finally, Dr. Greer evinced some animosity against Ms. Ross at the Evaluation Task Force meetings, where Ms. Ross was representing the Union's position on the questions at issue. Each of these situations either demonstrates possible anti-union animus or could, reasonably, be interpreted as potentially giving rise thereto. Although not central nor critical to the validity of our holding, the above observations do further substantiate the Union's prima facie case. At the outset of these proceedings, the Employers moved the Board to dismiss the Complaint herein on the ground that it failed to state a claim upon which relief may be granted. Having held, above, that the Union has established a prima facie case that the Employers have violated Sections 964(1)(A) and (B) of the Act, we must deny the Employers' motion to dismiss the Complaint. Having held that the Complainants have established, by a preponderance of the evidence, a prima facie case that the Employers' anti-union animus was a motivating factor in the decision to transfer Ms. Ross, we must now consider the Employers' affirmative defense, under the Wright Line standard. The Employers, at pages 20 through 23 of their brief, have argued that Ms. Ross would have been transferred in any event, regardless of her union activities. If proven by a preponderance of the evidence, the Employers' allegation constitutes an affirmative defense which "permits an employer to avoid being adjudicated a violator by showing what his activities would have been regardless of his forbidden motivation." NLRB v. Transportation -22- Management Corp., supra, ____ U.S., at ____, 103 S.Ct., at 2474. After a thorough examination of the record in this case, we hold that the Employers have established ample legitimate justification for their decision to transfer Ms. Ross. Extensive evidence was received to warrant the reductions in staff by attrition, non-renewal of probationary employees, involuntary transfers, and, where the same could not be avoided through implementation of one of the foregoing, layoffs of continuing contract teachers which have been experienced in the Portland School System. The Portland School Department's budget has been cut by approximately One Million Dollars per year, over the last three years, for a total budget cut of approximately Three Million Dollars, during that time. In an active effort to minimize the effect of said budget cuts on its staff, the Employers have implemented the progressive range of personnel actions, noted at the outset of this paragraph. Three early retirement incentive plans were adopted to spur such retirement and to foster staff reduction through attrition. Over the past three years, the above-mentioned budget cuts have resulted in the transfer of 142 secondary staff members and the layoff of 85 secondary personnel in the Portland School System. Secondary employees, in the foregoing context, are primarily those who teach at the middle school and the high school levels, as distinguished from elementary school staff. Over the past four years, the student enrollment at Portland High School declined from 1709 to 1328 students. In the spring of 1982, said declining student population resulted in three staff reductions having to be made at Portland High School: 1 English teacher, 1 mathematics teacher, and 1 social sciences teacher had to be transferred, laid off, or otherwise -23- removed from Portland High School. When all course enrollment projections and student course election information had been reviewed, there was a surplus of two English teachers at Portland High School for the 1982-1983 school year. Due to other personnel actions, two English teacher vacancies existed in the Portland School System for the 1982-1983 school year: one vacancy at the King Middle school and one at Deering High School. Ample legitimate justification was established to warrant the Employers' decision to transfer Ms. Ross to fill the King Middle School vacancy. Ms. Ross had, during the 1981-1982 school year, taught two speech classes at Portland High School. During the spring of 1982, only 22 students had signed up for speech for the next school year. Secondly, Ms. Ross had repeatedly failed to perform her assigned non-instructional hallway and cafeteria "supervisory" duties, at Portland High School during the 1981-1982 school year. While employed at Deering High School, four years previously, Ms. Ross had also repeatedly failed to perform such "supervisory" duties. As a result thereof, Ms. Ross had been involuntarily transferred to the King Junior High School. Said transfer predated Ms. Ross's "prominent" involvement in union activities. This prior transfer, under similar circumstances and without a hint of anti-uinon animus, clearly substantiates that the 1982 transfer was justified by legitimate motivation. Ms. Ross, during the 1981-1982 school year, ignored a fire alarm and continued teaching her class. On another occasion during the same academic year, Ms. Ross, without first consulting with the high school administration, allowed her students to leave school prior to the end of the normal school day. These latter two incidents, together with Ms. Ross's repeated failure to -24- perform her assigned "supervisory" duties, were injurious to Ms. Ross's professional relationship with the administrators at Portland High School. This poor working relationship is a legitimate reason for Ms. Ross's transfer. Ms. Ross's transfer to the King Middle School was also warranted by valid educational and personnel relations reasons. Ms. Ross possesses many fine qualities which make her an effective teacher at the middle school level. Ms. Ross projects well, has the ability to gain and to retain the attention of middle school students, and she does not have any disciplinary problems at that level nor any problems in motivating middle school students. Ms. Ross, in the past, had been an extremely successful middle school teacher. Finally, Ms. Ross had had an excellent working relationship with the King Middle School administrators, during her previous tenure at that school. The same principal and assistant principal, with whom Ms. Ross had worked at King in the past, remained at King for the 1982-1983 school year. Having held that the transfer decision was motivated by several legitimate reasons, we will dismiss those portions of the Complainants' complaint alleging that the transfer was made in violation of Sections 964(1)(A) and (B) of the Act. The final allegation in the complaint in this case is that the decision to transfer Ms. Ross was made in violation of Section 964(1)(C) of the Act. Said Section provides: "Public employers, their representatives and their agents are prohibited from: . . . Dominating or interfering with the formation, existence or administration of any employee organization;" We have defined the conduct prohibited by this Section as follows: "[T]his section of the Act is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and -25- thereby potentially dominating it." Teamsters Local Union No. 48 v. City of Calais, MLRB No. 80-29, at 5 (May 13, 1980). See also, Sabattus Teachers Ass'n. v. Sabattus School Committee, MLRB No. 79-35, at 4-5 (June 21, 1979). The evidence in this case does not demonstrate any attempt by the Employer to provide financial or other support to the Union, to participate in the Union's activities, nor to otherwise attempt to dominate the Union. We will, therefore, dismiss the portion of the Complainant's complaint alleging a violation of Section 964(1)(C) of the Act. 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: That the prohibited practices complaint, filed by Jeannie Ross and the Portland Teachers Association on July 29, 1982, in MLRB Case No. 83-04, be and hereby is dismissed. Issued at Augusta, Maine, this 29th day of August, 1983. MAINE LABOR RELATIONS BOARD /s/____________________________8/23/83 Donald W. Webber, Alternate Chairman -26- /s/____________________________8/24/83 Don R. Ziegenbein Employer Representative /s/___________________________8/29/83 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 of the date of this decision. -27-