STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-13 Issued: March 20, 1984 _________________________________ ) SANFORD FEDERATION OF TEACHERS, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) SANFORD SCHOOL COMMITTEE, ) ) Respondent. ) _________________________________) The question presented in this prohibited practices case is whether the Sanford School Committee (School Committee) is obligated to bargain about the issue of teacher preparation time during regular school hours. Consistent with our previous decisions, we hold that it is not, and dismiss the Sanford Federation of Teachers' (Feder- ation) complaint. The Federation filed its prohibited practices complaint on December 19, 1983, alleging that the School Committee violated 26 M.R.S.A. 964(1)(A) and (E) (1974) by refusing to bargain about and include preparation time language in the parties' new collective bargaining agreement. The School Committee filed an answer on January 6, 1984, alleging that preparation time is a matter of educational policy about which it need not negotiate, even though a preparation time provision had been included in the parties' previous agreement. On January 27, 1984, the parties waived a fact hearing and filed a stipulation of the facts of the case. Both parties then filed briefs, which have been considered by the Labor Relations Board. The Federation was represented by Joseph R. Mackey, Esq., and the School Committee by Annalee Z. Rosenblatt. JURISDICTION The Federation is the "bargaining agent" within the meaning of 26 M.R.S.A. 968(5)(B)(Supp. 1983) for the teachers employed -1- by the School Committee. The School Committee is a "public employer" as defined in 26 M.R.S.A. 962(7)(Supp. 1983). The jurisdiction of the Maine Labor Relations Board to take this case and issue a decision and order lies in 26 M.R.S.A. 968(5)(C)(1974). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. On or about February 8, 1983, the Federation and School Committee began negotiations for a collective bargaining agreement to succeed an agreement with a term of September 1, 1980, to August 31, 1983. In its bargaining proposal submitted to the Federation on or about February 8, the School Committee proposed to delete the teacher preparation time provision included in the 1980-83 contract. That provision, appearing in Paragraph E of Article 8 (Teaching Hours and Teaching Load), stated: E. Preparation Time 1. Classroom teachers shall during regular school hours, in addition to their lunch period have, whenever possible, average daily preparation time during which they shall not be assigned to any other duties as follows: a. Elementary School - Whenever specialist teachers are in the classroom, the regular teachers shall be entitled to a preparation period. The teacher need not remain in the classroom. However, each teacher is to make provision to receiving follow-up instructions from the specialist teacher. b. Junior High School - one class period c. Senior High School - one class period d. Other members of the negotiating unit who are regular classroom teachers shall be provided with preparation time to the same extent as other teachers. 2. From February 8 throughout the course of negotiations the Federation maintained that Paragraph E of Article 8 should remain unchanged and should be included in the successor agreement. The Committee refused to bargain about the issue of preparation time, insisting that it was not a mandatory subject of bargaining and that it should not be included in the new contract. -2- 3. In June 1983 Federation and School Committee representa- tives signed a letter by which the parties acknowledged that the status of the preparation time provision remained unresolved and agreed that the signing and implementation of a successor contract did not constitute waiver by either party of any right to pursue resolution of the preparation time question. 4. In August 1983 the parties signed a successor agreement which runs from September 1, 1983 to August 31, 1986. This agree- ment does not contain any language regarding teacher preparation time. DECISION The Federation charges that the School Committee violated Section 964(1)(A) and (E) by refusing to bargain about and continue the preparation time provision in the new collective bargaining agreement.[fn1] Resolution of this charge depends upon whether the issue of preparation time is a mandatory or a non-mandatory subject of bargaining. If the issue is a mandatory subject--i.e., one related to "wages, hours, working conditions and contract grievance arbitration"--then the School Committee was obligated to bargain about it although it was of course not obligated to agree to include it in the new contract. 26 M.R.S.A. 965(1)(C)(1974).[fn2] If the _______________ 1 Section 964(1)(A) prohibits public employers from "[ilnter- fering with, restraining or coercing employees in the exercise of the rights guaranteed in section 963." Section 963 establishes the rights of public employees to join labor organizations and engage in collective bargaining with their employers. Section 964(1)(E) prohibits public employers from "[r]efusing to bargain collectively with the bargaining agent of its employees as required by section 965." Section 965 sets forth the elements of the duty to bargain in good faith. 2 Section 965(1)(C) states: 1. Negotiations. It shall be the obligation of the public employer and the bargaining agent to bargain collectively. "Collective bargaining" means, for the purposes of this chapter, their mutual obligation: * * * * * * * * * C. To confer and negotiate in good faith with respect to wages, hours, working conditions and -3- issue is a non-mandatory or "permissive" subject--one not related to "wages, hours, working conditions and contract grievance arbi- tration" or one that is a matter of "educational policy"--then the School Committee was not obligated to bargain about it, let alone agree to include it in the successor agreement. We have discussed these rules and their ramifications in dozens of cases. See, e.g., Woolwich School Committee v. Woolwich Teachers Association, MLRB No. 80-55 at 5-6 (Feb. 27, 1981); M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36, et al. (August 24, 1979); see also, NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 348-49 (1958). We have also held in at least two cases that the issue of teacher preparation or planning time during school hours is a matter of educational policy about which a school committee is not required to negotiate. M.S.A.D. No. 43 Board of Directors at 13-14; Caribou School Dept. v. Caribou Teachers Association, MLRB No. 76-15 at 3-4 (Jan. 19, 1977). These holdings are based on the Court's interpretation of Section 965(1)(C)'s "educational policy" clause in City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387 (Me. 1973). In particular, the Court held that the number of hours per day a teacher is required to work is a matter of educa- tional policy, stating at p. 421: "Thus, the length of the teacher's working day is closely and heavily interwoven with judgments bearing upon the welfare of the students,--as reflected in the ultimate quality of their education and the extent to which it may be improved or weakened by use of various types of substitutes, technological or otherwise, for _______________ contract grievance arbitration, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession and except that public employers of teachers shall meet and consult but not negotiate with respect to educational policies for the purpose of this paragraph, educational policies shall not include wages, hours, working condi- tions or contract grievance arbitration. -4- the living presence and active participation of teachers. Such foundational educational value judg- ments cannot reasonably be subordinated to the overlay of teacher "working conditions", and for this reason, the length of the teacher's working day must be held, fundamentally, that kind of "educational policies" subject-matter which was legislatively intended to remain outside the scope of mandatory collective bargaining and, therefore, of binding arbitration." We reasoned in M.S.A.D. No. 43 and Caribou that since preparation and planning time proposals could affect the length of the teachers' working day, require the use of various types of substitutes for the presence of teachers, and infringe on the ability of the school administration to schedule classes and student activities, such proposals must be considered matters of educational policy. Although such proposals also obviously affect teacher working conditions, this fact is overridden by the "foundational educational value judgments" inherent in the proposals, according to the Court's analysis in Biddeford. The preparation time provision in the 1980-83 contract, quoted in Finding of Fact No. 1 in this decision, states that whenever possible teachers shall have daily preparation time during regular school hours. The provision provides for one class period per day of preparation time for junior high and senior high school teachers, and preparation periods for elementary school teachers whenever specialist teachers are in the classroom. The School Committee notified the Federation in February 1983 that it would not bargain about or include preparation time language in the parties' successor contract, and the Federation maintained that the provision should be included unchanged in the new contract. We find that the School Committee's position was entirely proper; the preparation time provision in the 1980-83 contract plainly was a matter of educa- tional policy, so the School Committee was not obligated to bargain about it or include it in the successor agreement. Indeed, the Federation would have violated the Act had it insisted to impasse that preparation time language be negotiated for the new agreement. See, e.g., M.S.A.D No. 43 Board of Directors at 12-13; NLRB v. -5- Wooster Division of Borg-Warner Corp., 356 U.S. at 349.[fn3] The Federation's argument that the School Committee "unilaterally deleted" the provision from the new contract is incorrect as a matter of law. It is a venerable principle of labor law that the fact a non-mandatory subject of bargaining is bargained about and included in a contract does not mean that it must be bargained for future contracts: "By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining." S.A.D. #22 Non-Teachers Association v. S.A.D. #22 Board of Directors, MLRB No. 79-32 at 7 (July 30, 1979), quoting Allied Chemical Workers Local 1 v. Pittsburg Plate Glass Co., 404 U.S. 157, 188 (1967). The School Committee therefore lawfully refused to bargain about preparation time for the successor contract even though a preparation time provision was contained in the 1980-83 contract. It of course is not our place to pass on the wisdom of the School Committee's elimination of preparation time periods during school hours; we hold only that it did not violate its statutory duties and obligations by doing so. The Federation also argues in its brief that the School Committee violated Section 964(1)(A) and (E) by refusing to bargain about the impact of its decision to eliminate teacher preparation time. This issue, which is entirely separate from the question whether the School Committee was obligated to bargain about preparation time,[fn4] _______________ 3 The record shows that the Federation did not insist to impasse on bargaining about preparation time. In June 1983 the parties agreed that execution of a successor agreement without a prepara- tion time provision would not constitute waiver of either party's right to seek a determination of the negotiability of preparation time proposals. This agreement adequately preserved the Federa- tion's right to pursue the issue before us. See, e.g., Caribou School Dept. v. Caribou Teachers Association, 402 A.2d 1279, 1281-82 (Me. 1979). In August 1983 the parties signed a successor agree- ment which does not contain any preparation time language. By these actions the parties avoided deadlocking negotiations over the issue of preparation time. 4 ". . . the decision . . . and the effects . . . are separate and independent issues." City of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982). -6- was neither pleaded in the Federation's complaint nor referred to in the stipulation of facts. Since the issue was not pleaded and since there is no evidence that the Federation ever requested to negotiate about impact or that the School Committee refused to negotiate about it, the Federation's "impact" argument is frivolous. As there is no evidence that the School Committee has violated the Act, the Federation's complaint must be dismissed. 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)(C) (1974), it is ORDERED: The Sanford Federation of Teachers' prohibited practice complaint filed in this proceeding is dismissed. Dated at Augusta, Maine, this 20th day of March, 1984. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised of Donald W. Webber their right pursuant to 26 Alternate Chairman M.R.S.A. 968(5)(F)(Supp. 1983) to seek review of this decision and order by the Superior Court by filing a /s/________________________________ complaint in accordance Thacher E. Turner with Rule 80B of the Rules Employer Representative of Civil Procedure within 15 days of the date of the decision. /s/________________________________ Harold S. Noddin Employee Representative -7-