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
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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.
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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
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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
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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
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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.
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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.
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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]
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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).
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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
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