STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 85-07 and 85-09
Issued: March 14, 1985
______________________________________
)
SACO VALLEY TEACHERS ASSOCIATION, )
)
Complainant )
)
v. ) DECISION AND ORDER
)
MAINE SCHOOL ADMINISTRATIVE DISTRICT )
NO. 6 BOARD OF DIRECTORS, )
)
Respondent )
______________________________________)
The questions presented in these prohibited practices cases,
which have been consolidated for purposes of hearing and decision, are
whether, after receiving a 10-day notice demanding negotiations, Maine
School Administrative District No. 6 Board of Directors ("Employer")
violated 26 M.R.S.A. Sec. 964(1)(E) by failing, within 10 days of
the receipt of said notice, to meet with the Saco Valley Teachers
Association ("Union") and by unilaterally, without first negotiating
over the substance and impact thereof with the Union, implementing an
after-school tutorial policy and a mandatory open house teacher atten-
dance policy at the Bonny Eagle Junior High School.
We find that, by failing to meet with the Union within 10 days of
receipt of a 10-day notice demanding negotiations, the Employer
violated Section 965(1)(B). We further hold that the Employer
violated Section 965(1)(C) by refusing to bargain with the Union over
the impact of the after-school tutorial policy and by refusing to
negotiate with the Union over the substance and impact of the man-
datory open house attendance policy prior to its implementation.
These actions by the Employer constitute prohibited practices in
violation of 26 M.R.S.A. Sec. 964(1)(E). We will order appropriate
remedies to effectuate the policies of the Municipal Public Employees
Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-A.
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The Union's complaint in Case No. 85-07, concerning the after-
school tutorial policy, was filed on November 13, 1984. On December
3, 1984, the Employer filed its answer in Case No. 85-07, denying that
its conduct violated any provision of the Act, and moved to dismiss
the Union's complaint.
The Union's complaint in Case No. 85-09, concerning the mandatory
open house attendance policy, was filed on November 28, 1984. On
December 14, 1984, the Employer filed its answer in Case No. 85-09,
denying that its actions transgressed any provision of the Act, and
moved to dismiss the Union's complaint.
A pre-hearing conference on the cases was held on January 3,
1985, Alternate Chairman Donald W. Webber presiding. On January 4,
1985, Alternate Chairman Webber issued a Pre-Hearing Conference
Memorandum and Order, the contents of which are incorporated herein
by reference.
A hearing on the merits of the cases was held on January 8, 1985,
Chairman Edward S. Godfrey presiding, with Employer Representative
Thacher E. Turner and Employee Representative Harold S. Noddin. The
Union was represented by one of its Affiliate Service Directors, Mr.
George Luse, and the Employer was represented by Donald A. Kopp, Esq.
The parties were given full opportunity to examine and cross-examine
witnesses, introduce evidence and make argument.
JURISDICTION
The Saco Valley Teachers Association is the recognized bargaining
agent, within the definition of 26 M.R.S.A. Section 962(2), for a
bargaining unit composed of all classroom teachers, reading teachers,
special education teachers, guidance counselors, art teachers, school
librarians, music teachers, and teacher principals who have been
employed at least six months by Maine School Administrative District
No. 6. The Maine School Administrative District No. 6 Board of
Directors is the public employer, within the meaning of 26 M.R.S.A.
Section 962(7), of the employees mentioned in the preceding sentence.
The jurisdiction of the Maine Labor Relations Board ("Board") to hear
these cases and to render a decision and order herein lies in 26
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M.R.S.A. Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. The Saco Valley Teachers Association is the recognized
bargaining agent, within the definition of 26 M.R.S.A. Section 962(2),
for a bargaining unit composed of all classroom teachers, reading
teachers, special education teachers, guidance counselors, art
teachers, school librarians, music teachers, and teacher principals
who have been employed at least six months by Maine School
Administrative District No. 6.
2. The Maine School Administrative District No. 6 Board of
Directors is the public employer, within the definition of 26 M.R.S.A.
Section 962(7), of the employees whose positions are mentioned in the
preceding paragraph.
3. At all times relevant to this case, a collective bargaining
agreement has been in effect, between the Saco Valley Teachers
Association and the Maine School Administrative District No. 6 Board
of Directors, for the bargaining unit referred to in paragraph 1 above.
4. Prior to September, 1984, there was no structured make-up
program in place for students whose work was unsatisfactory at Bonny
Eagle Junior High School. Despite the lack of a formal make-up
policy, the teachers at Bonny Eagle Junior High School were expected,
as part of the terms and conditions of their employment, to assist
students requiring extra help, during study halls and after school.
5. On March 5, 1984, the Guidance Counselor at Bonny Eagle
Junior High School proposed a formal after-school tutorial program,
for students who were in danger of failing one or more courses. An
after-school tutorial program was developed through a series of
meetings of administrators, department heads, and teachers, from March
5, 1984 through June 11, 1984, at the Bonny Eagle Junior High School.
On June 11, 1984, the teachers of the Bonny Eagle Junior High School
voted to implement the formal after-school tutorial program during
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the Fall of 1984. The Union was not formally notified of the develop-
ment of the proposed tutorial program. During the Spring of 1984, the
President and other Union members became aware that the tutorial
program was being developed.
6. Under the after-school tutorial program implemented in
September, 1984, each major course area has an assigned day, Monday
through Thursday of each school week. A student who is in danger of
failing a course is given a make-up slip to inform his parents and is
required to attend at least four weekly sessions, between the hours of
2:00 and 3:00 p.m. on the day of the week assigned to the course with
which the student is having difficulty. Unless the student has been
released from the program earlier, his participation is evaluated
after four sessions to determine whether continued involvement is in
the student's best interest.
7. The effect of the tutorial program is that those teachers
with students in danger of failing a course are required to work an
extra forty-five minutes, one day each week. Once every nine weeks,
each teacher must stay at the school until 4:00 p.m. to supervise all
of the students in that teacher's department until they go home on the
activities bus. The tutorial program replaced after-school duty, to
which two teachers had been assigned on a rotating basis to supervise
students from 2:00-4:00 p.m. Such afternoon duty had occurred every
day of the 1983-1984 school year, Monday through Thursday.
8. On September 17, 1984 during a meeting with Union President
Mitchell, Superintendent Ansley expressed his full support for the
after-school tutorial program. The Superintendent sent the Union
President a memorandum on September 26, 1984 summarizing his thoughts
on the make-up policy.
9. Prior to September 22, 1982, the Principal of the Bonny Eagle
Junior High School proposed and the school's teachers agreed to par-
ticipate voluntarily in a "back-to-school" night at the school to be
held on that date. Parents visiting the school during the two-hour
evening open house tracked a typical day in their children's schedule.
Each class period was reduced in length, permitting the parents to meet
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each of their children's teachers and to learn something about each
teacher's plans for the coming school year. Students did not par-
ticipate in the program.
10. On September 22, 1983, a "Back-to-School" night was again
held at the Bonny Eagle Junior High School. The program was the same
as that described in the preceding paragraph; however, the school's
Principal told the teachers that their attendance and participation in
the 'Back-to-School" night was mandatory.
11. In response to complaints received from some of the
District's teachers, on November 15, 1983, Interim Superintendent of
Schools Hopkins wrote a letter to all the teachers which stated in
relevant part: "A few of you were concerned about 'contract language'
and may have felt that the administrators overstepped their bounds.
If your school has an 'open house,' 'back-to-school night,' etc.
please consider these events voluntary."
12. On September 17, 1984, at a meeting of Superintendent of
Schools Ansley and Union President Mitchell, the Superintendent
outlined his position that teacher attendance at open house events was
mandatory. The Superintendent sent President Mitchell a memorandum on
September 20, 1984 summarizing the Superintendent's position on atten-
dance at open house programs by teachers.
13. By requiring teachers to attend open house night, the
Employer effected a unilateral change in working conditions: such
attendance had been voluntary in 1982 and had been treated as volun-
tary in the Interim Superintendent's letter of November 15, 1983.
Prior to its implementation, the substance and impact of that policy
had not been negotiated with the Union.
14. On September 22, 1984, the Union President sent a letter to
the Superintendent which stated, in part: "The Saco Valley Teachers
Association requests a meeting within ten (10) days, in accordance
with the State Collective Bargaining Statute, to negotiate the
substance and impact of the recent unilateral change in the teacher
working day caused by the new Junior High School after school tutoring
program. We will also be negotiating the substance and impact of the
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recent unilateral change in the teacher work day caused by the man-
datory attendance of teachers at so called Open House, Back to School
Night, etc."
15. The Superintendent received the letter cited in the preceding
paragraph on September 28, 1984.
16. On October 2, 1984, Superintendent Ansley wrote a letter to
Union President Mitchell which stated in part: "I do not believe that
the statute which you cite requires the Board to negotiate your con-
cerns regarding 'open house' attendance and the junior high school
make-up program and I do believe that mutual agreement between the
Union and School Board is a prerequisite for negotiations such as you
suggest (Article II, B). As you know, no such mutual agreement has
been established. However, I feel confident that the Board would be
willing to discuss (as opposed to negotiating) your concerns regarding
these programs with you. I would be glad to place such a discussion
on the agenda for the next Board meeting which will be on October
15th. If you would like me to do so, please let me know anytime prior
to Thursday, October 11th, at which time the agenda must be mailed to
the Board."
17. No meeting between the Union and the Employer was held within
ten days of the Employer's receipt of the Union's letter of September
22, 1984.
18. The Employer has failed and refused to negotiate either the
substance or the impact of either the after-school tutorial policy or
the mandatory open house teacher attendance policy at the Bonny Eagle
Junior High School.
19. Prior to May 21, 1984, the Employer and the Union bargained
"re-openers" for the last year of the collective bargaining agreement
mentioned in paragraph 3, supra. During said negotiations, the Union
proposed that teacher participation in open house functions remain on a
voluntary basis. This proposal was not incorporated into the parties'
final agreement which was ratified by the Board of Directors on May
21, 1984. The reason for and significance of such omission cannot be
determined from the evidence presented.
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DECISION
The first issue presented by prohibited practice complaints in
these cases is whether the Employer has violated Section 965(1)(B).
That provision of the Act states:
"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 obli-
gation . . .
"To meet within 10 days after recipt of writ-
ten notice from the other party requesting a
meeting for collective bargaining purposes, pro-
vided the parties have not otherwise agreed in a
prior written contract;"
The record indicates that the Superintendent, as Secretary of the
Employer's Board of Directors, received the Union's 10-day bargaining
demand on September 28, 1984. The parties did not meet to negotiate
the substance or impact of the implementation of either the after-
school tutorial policy or the mandatory open house attendance policy
within 10 days of September 28, 1984. The Employer has argued that it
was relieved of the obligation to meet within ten days of receipt of
the Union's demand for bargaining by the terms of the current collec-
tive bargaining agreement between the parties. The relevant portion
of that agreement, Article II (B) (the "zipper clause"), reads as
follows:
"During the term of this Agreement, except as
to the negotiation of a successor agreement pur-
suant to 26 M.R.S.A. 965, the parties shall not
request the right to renegotiate any of the provi-
sions of this Agreement nor be entitled to nego-
tiate on any other item, except by mutual
agreement. Nothing in this paragraph shall be
construed as prohibiting the parties from meeting
and consulting in accordance with 26 M.R.S.A. 965
(1)(C),Inor from mutually agreeing to negotiate on
any item."
The issue presented is whether by agreeing to that language the
Union has waived its statutory right to bargain over the substance and
impact of the unilateral changes which have been implemented. A party
may waive its right to demand negotiations, during the term of a
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collective bargaining agreement over unilateral changes which affect
the mandatory subjects of bargaining, by agreeing to a "zipper clause"
which covers such unilateral changes. For such a waiver to be effec-
tive as a bar to negotiations, the evidence of waiver must be clear
and unmistakable. Council No. 74 AFSCME v. City of Bangor, MLRB No.
80-41, at 9-10 Sept. 24, 1980), aff'd, 449 A.2d 1129 (Me. 1982).
The Supreme Judicial Court has discussed the relationship between
"zipper clauses" and mid-term negotiations over unilateral changes
which affect the mandatory subjects of bargaining. The Court has
stated:
"The Superior Court determined that the
Board's finding of a violation of the duty to
notify and bargain with the union was not clearly
erroneous. We agree with the Superior Court that
the Board did not err in concluding that the city
had violated section 964(1)(E) and adopt its
accurate analysis of this issue:
'The Board found that the City committed
a distinct violation of the Public
Employees Act when it failed to notify the
Union of and bargain with it over the effect
of the discharges of Prescott, Strout and
Bragg. At issue is section 964(1)(E) which
prohibits an employer from refusing to
bargain collectively pursuant to Sec. 965,
which, in turn, creates an obligation to
'confer and negotiate in good faith with
respect to wages, hours, [and] working con-
ditions . . . ' The effects of a discharge
have been held to be a subject of mandatory
bargaining. N.L.R.B. v. Allis-Chalmers
Corp., 601 F.2d 870, 875 (5th Cir. 1979);
N.L.R.B. v. W. R. Grace & Co., Construction
Products Div., 571 F.2d 279, 283, (5th Cir.
1978); N.L.R.B. v. Transmarine Navigation
Corp., 380 F.2d 933 (9th Cir. 1967).
Concomitant with the characterization of a
subject as within the duty to negotiate is a
duty of the employer to notify the union to
provide it with an opportunity to bargain
over it. Id. The failure to do so violates
Section 964(1)(E). In the case of a
discharged employee, the subjects of
bargaining may include severance pay, vaca-
tion pay, seniority, and pensions.
Transmarine, supra. Here, the City provided
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no notice to the Union of its decision to
discharge the four employees covered by the
guarantees of the Public Employees Act. Its
unilateral action taken before the Union had
an opportunity to negotiate these subjects
thus constituted a breach of the Act's pro-
visions.
'Article 33(2) of the collective bargain-
ing agreement provides that the City and the
Union each 'voluntarily and unqualifiedly
waives the right, and each agrees that the
other shall not be obligated to negotiate
with respect to any subject or matter refer-
red to or covered in this agreement. . . .
The contract in article 26(1) also pro-
vides that 'the City shall have the exclu-
sive right to . . . discharge or suspend for
just cause . . . [and] to reduce or expand
the working forces . . . .' Thus, while
article 33(2) effects a waiver by the Union
of its right to negotiate over a discharge
for just cause itself and over changes in
the size of the group of employees, it does
not waive its right to negotiate over the
effects of that discharge. The issues of
discharge and its effects are distinct, and
the waiver of one is not equivalent to the
waiver of the other. The distinctiveness of
these two issues is made clear in Trans-
marine, supra, which held that although
the managerial decision to terminate its
business and reinvest its capital elsewhere
is not a subject of collective bargaining,
the effects of the decision is mandatory to
the extent that it implicates wages, hours,
and other conditions of employment. Because
the decision to displace employees and the
effects of their displacement are separate
and independent issues, and further because
waiver clauses in collective bargaining
agreements are read constrictively,
N.L.R.B. v. Auto Crane Co., 536 F.2d 310,
312 (10th Cir. 1976), see, e.g., State v.
Maine Labor Relations Board, supra, 413
A.2d at 515, the Board did not err in
concluding that the waiver provision in
article 33(2) of the collective bargaining
agreement did not encompass the effects of
discharge. As the effects of a discharge is
a subject of mandatory bargaining and
because it was not waived here, the City
violated 964(1)(E) by discharging the
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four employees without first notifying the
Union to provide it with an opportunity to
request negotiations over its effects."'
City of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1134-1135
(Me. 1982). The "zipper clause" in the present case is silent on the
question of mid-term negotiations over the impact of unilateral
changes upon the mandatory subjects of bargaining. Unlike the
situation discussed in City of Bangor, it was not argued that the
relevant collective bargaining agreement permitted the Employer to
unilaterally make the changes at issue. The Employer has argued that
the "zipper clause" precludes all negotiations between the parties for
the duration of the current collective bargaining agreement, except
for negotiations for a successor agreement or by mutual consent of the
parties.
A "zipper clause" is a contractual device designed to protect the
status quo and thereby promote the improvement of the relationship
between employers and their employees through stable collective
bargaining agreements. The "zipper clause" was designed to be used as
a shield, not as a sword. Following the analysis adopted by the Court
of Appeals for the Second Circuit in the instant case, the Employer
could, during the term of the collective bargaining agreement and
except for negotiations for a successor agreement, properly invoke the
"zipper clause" as a shield against negotiations proposed by the
Union; however, that clause may not properly be used to preclude nego-
tiations or consultations, within the scope of Section 965(1)(C), over
the Employer's own unilateral actions, NLRB v. General Electric
Company, 418 F.2d 736, 747 (2d Cir. 1969), cert. denied, 397 U.S. 965,
90 S.Ct. 995, 25 L.Ed. 2d 257 (1970). Such unilateral changes tend
strongly to disrupt the stability of the collective bargaining rela-
tionship. To give the clause the effect of precluding negotiations in
this context would promote instability, contrary to the purpose of the
"zipper clause" and of the Act.
The fundamental issue is whether the Union has waived its right,
under Section 965(1)(C), to demand negotiations over the mandatory
subjects of bargaining. To be effective, such a waiver must be "clear
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and unmistakable" and "should be express, and . . . mere inference, no
matter how strong, should be insufficient." NLRB v. Perkins Machine
Company, 326 F.2d 488, 489 (1st Cir. 1964). The federal courts have
found such waiver when a topic is either included in the collective
bargaining agreement or has been specifically bargained over and
knowingly abandoned during collective negotiations, N L Industries,
Inc. v. NLRB, 536 F.2d 786, 789 (8th Cir. 1976). Since the collective
bargaining agreement does not expressly authorize the Employer to uni-
laterally make the changes at issue and the "zipper clause" is silent
on the question of mid-term negotiations over unilateral changes which
affect the mandatory subjects of bargaining, we conclude that the
Union did not waive its Section 965(1)(C) rights by agreeing to the
collective bargaining agreement.
The Employer has alleged that, since the issue of mandatory
teacher attendance at open house functions was raised during the 1984
"re-opener" negotiations and because the parties' revised agreement is
silent on that topic, the open house attendance issue was waived by
the Union's conduct during said negotiations. The evidence has not
convinced us that the Union knowingly abandoned this proposal during
the course of such negotiations. The Employer's argument, that since
the proposal was not incorporated into the parties' revised agreement
it was waived, rests on an inference. Consistently with the policy
of construing "zipper clauses" strictly, Lewiston Teachers
Association v. Lewiston School Committee, MLRB No. 80-45, at 6 (Aug.
11, 1980), we hold that the Union has not waived its rights, under
Section 965(1)(B), to demand a meeting for collective bargaining pur-
poses, in response to the Employer's unilateral actions. We conclude,
therefore, that, by failing to meet with the Union within ten days of
receipt of the Union's demand for bargaining dated September 22, 1984,
the Employer violated Section 965(1)(B), thereby committing a
prohibited practice under Section 964(1)(E) of the Act.
A second contention, presented by the Employer in relation to the
after-school tutorial program, was that, since the make-up policy was
conceived by a unit employee, was developed with input of several unit
employees with notice to all of the Junior High School faculty, and
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was adopted at a meeting of the school's faculty, the policy was not
implemented unilaterally by the Employer. While the factual basis of
the Employer's averment is supported by the record, we must, neverthe-
less, reject the thrust of the argument. The duty to bargain collec-
tively created by Section 965(1) of the Act is a mutual obligation of
the public employer and of the bargaining agent representing the
employer's employees. Since the record plainly reveals that the
tutorial policy was never negotiated with the Union, nor was the Union
consulted prior to the program's implementation, the make-up policy
was unilaterally implemented by the Employer. By failing to meet with
the Union for collective bargaining purposes within ten days of
receipt of the Union's demand for negotiations, the Employer has
violated Section 965(1)(B).
We must now examine the nature of the discussions between the
parties required by Section 965(1)(C). That section of the Act com-
pels the public employer and the bargaining agent representing its
employees "[t]o confer and negotiate in good faith with respect to
wages, hours, working conditions and contract grievance arbitration . . .
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 conditions or contract grievance arbitration . . ." The
leading decision interpreting Section 965(1)(C) is Justice Wernick's
opinion in City of Biddeford v. Biddeford Teachers Ass'n., 304 A.2d
387 (Me. 1973). After noting that the terms "educational policies"
and "working conditions" may be "reasonably conceived as categories
defining areas with essential purity at the extremities but with
intermediate zones of substantial intermixture," Justice Wernick
stated that the legislature's "double emphasis" on "working con-
ditions" in Section 965(1)(C) is intended to prevent emasculation of
teacher working conditions as mandatory subjects of bargaining.
Ibid., 304 A.2d, at 418-420. The double emphasis indicates legisla-
tive intent that teacher working conditions be subject to collective
bargaining "notwithstanding that they touch upon one specific 'mana-
gerial' function with which, as a practical matter the 'working con-
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ditions' of teachers are almost invariably interconnected - i.e., the
organization, supervision, direction and distribution of working
personnel." Ibid., 304 A.2d, at 419. Justice Wernick concluded his
analysis of the interrelationship between "educational policies" and
"working conditions" as follows:
"Thus, (1) negatively, not only must impact
upon the organization, supervision, direction and
distribution of personnel be held insufficient
per se, to exclude items related to teacher
'working conditions' as proper matters of collec-
tive bargaining and binding arbitration but also,
(2) affirmatively, the reasonably manifest
legislative intention must be held to be that
other contacts of such items with other functions
generally cognizable as 'managerial' and 'policy-
making' can subordinate the 'working conditions'
features, and accomplish an exclusion from nego-
tiability and binding arbitration, only if, on
balance, their quantitative number or qualitative
importance, or both, are found significantly
substantial to override the prima facie eligibi-
lity for collective bargaining and binding
arbitration established by the presence of reason-
able relationships to 'working conditions."'
Ibid., 304 A.2d, at 420. Justice Wernick's opinion further resolved
the "educational policies" - "working conditions" dichotomy through
its analysis of the status of the length of the teacher's working day
and teacher attendance at school during times when students are not
present, within the ambit of Section 965(1)(C). Focusing on the
length of the teacher's working day, Justice Wernick stated:
"While it is clear that the number of hours
which any individual teacher shall be required
to work in a given day need not coincide with the
number of hours the students are obliged to be in
attendance at school, this fact by itself fails to
establish that the length of the teacher's school
day may be isolated as a proper subject of man-
datory collective bargaining. Closer scrutiny
reveals that were the length of the teacher's
school day negotiable in collective bargaining and
in a given situation were economic conditions
to preclude the hiring of additional teaching per-
sonnel, negotiations aimed at shortening the work-
day of teachers would necessarily become directed
toward seeking alternatives to the hiring of addi-
tional personnel. There would thus eventuate an
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exploration into such areas as the utilization of
newer educational techniques by which a
teacher's actual presence or participation is ren-
dered unnecessary - e.g., electronic aids, open
class rooms, team teaching programs and subject-
matter restrictions or modifications. In this
manner, significantly more substantial intrusions
into 'policy' areas, - over and above encroachment
simply upon the 'managerial' supervision, organi-
zation, direction and distribution of personnel -
become involved.
"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 educa-
tion and the extent to which it may be improved or
weakened by use of various types of substitutes,
technological or otherwise, for the living pre-
sence and active participation of teachers. Such
foundational educational value judgments 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 'education poli-
cies' subject-matter which was legislatively
intended to remain outside the scope of mandatory
collective bargaining and, therefore, of binding
arbitration."
Ibid., 304 A.2d, at 420-421. Considering the negotiability status of
teacher attendance pre- and post-school day hours and pre- and post-
school year days, Justice Wernick stated:
"On the other hand, questions relating to the
attendance of teachers at school at times other
than when the students will be in attendance are to
be regarded as 'working conditions' of teachers
lacking significant relationships to non-teacher
interests of a quantitative and qualitative magni-
tude sufficient to negate collective bargaining
or binding arbitration. The negotiation or
arbitration of questions related to whether and
when teachers shall be at school, even though the
students are not in attendance, impinge only upon
that 'managerial' function concerned with the
organization, supervision, direction and distribu-
tion of personnel. As above emphasized, this
single 'managerial' factor must be regarded as
insufficient per se to establish the kind of
involvement with 'educational policies' requisite,
statutorily, to remove an item substantially
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related to teacher 'working conditions' from the
sphere of mandatory collective bargaining or of
determination by binding arbitration."
Ibid., 304 A.2d, at 421-422. We have consistently, through a series
of decisions, applied the foregoing principles in determining the
negotiability status of issues concerning teacher employment. See,
e.g., Sanford Federation of Teachers v. Sanford School Committee, MLRB
No. 84-13, at 4 (Mar. 20, 1984); Southern Aroostook Teachers Ass'n.,
v. Southern Aroostook Community School Committee, MLRB Nos. 80-35 and
80-40, at 15 (Apr. 14, 1982); and M.S.A.D. No. 43 Board of Directors
v. M.S.A.D. No. 43 Teachers Ass'n., v. MLRB Nos. 79-36, 79-39, 79-45,
and 79-47, at 7 (Aug. 24, 1979).
Applying the foregoing principles to the after-school tutorial
program at the Bonny Eagle Junior High School, we hold that implemen-
tation of said program was an educational policy decision and, there-
fore, the Employer was not obligated to negotiate the substance of the
policy before its implementation. The tutorial program is intimately
related to the success of the educational process and the ultimate
quality of education received by the students at the junior high
school, especially of those students having academic difficulties and
in danger of failing one or more courses. The Employer, therefore,
did not violate Section 965(1)(C) by unilaterally implementing the
after-school tutorial policy without first negotiating the substance
and impact of that policy with the Union.
The determination that a particular subject falls within the
scope of "educational policy" does not relieve the Employer of all the
obligations created by Section 965(1)(C). Although there is no obli-
gation to negotiate over matters of "educational policy," the Employer
must, within 10 days of receiving a demand given pursuant to Section
965(1)(B) for the same, meet and consult with the bargaining agent
over said "educational policy" issues. The meet and consult process,
described in detail at pages 15 and 16 of the decision in Southern
Aroostook Teachers Ass'n., supra, normally must be completed prior to
implementation of changes in "educational policies." M.S.A.D. No. 43
Teachers Assn., v. M.S.A.D. No. 43 Board of Directors, MLRB No.
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79-42, at 4 (May 1, 1979). In the unique circumstances of this case,
in view of the Union's substantial delay in requesting negotiations
over the tutorial policy as well as the participation of unit
employees in the formulation and development of the make-up policy, we
hold that the meet-and-consult obligation embodied in Section
965(1)(C) was not violated.
Despite the fact that, because the subject matter of the tutorial
policy was "educational policy," the Employer was not obligated to nego-
tiate the substance thereof, Section 965(1)(C) requires that, upon
receipt of a timely request therefor, the Employer must negotiate over
the impact of the implementation of such "educational policy" upon the
mandatory subjects of bargaining. Caribou Teachers Ass'n., v. Caribou
School Department, MLRB No. 76-22, at 3 (Nov. 10, 1976). The Employer
need not, however, complete the impact bargaining prior to imple-
menting the unilateral change in 'education policies." In Southern
Aroostook Teachers Ass'n., supra, at 18, we stated:
"The fact that the Committee implemented the
changes in the kindergarten program prior to
engaging in impact bargaining does not mean that
it violated its duty to meet and consult. The
duty to meet and consult does not include the
requirement that the employer wait until impact
bargaining is completed before implementing
changes in educational policy; once the duty to
meet and consult has been satisfied, the change
can be implemented. See, e.g., MSAD No. 43
Teachers Association, [MLRB No. 79-43 (May 1,
1979)]. Were we to hold that the employer could
not implement educational policy matters until
after impact bargaining was completed, the prac-
tical effects of the duty to meet and consult and
the duty to bargain would be indistinguishable.
This would be contrary to the plain intent
expressed in Section 965(1)(C) that the duty to
meet and consult be subordinate to the duty to
bargain."
In this case, therefore, the Employer did not violate Section
965(1)(C) by failing to negotiate the impact of the tutorial policy
upon the mandatory subjects of bargaining prior to implementing the
policy. However, the Employer's continued failure and refusal to
bargain over such impact, if any, after the program's implementation
does contravene the provisions of Section 965(1)(C) and is a prohi-
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bited practice under Section 964(1)(E).
Turning to the mandatory open house attendance policy, we hold
that said policy is a mandatory subject of bargaining and is not an
"educational policy," within the meaning of Section 965(1)(C) of the
Act. Within the context of the working conditions - educational
policy intermixture, discussed in Justice Wernick's Biddeford opinion,
the mandatory open house attendance policy is much closer in nature to
the question of teacher attendance pre- and post-school day hours and
pre- and post-school year days than it is to the issue of the length of
the teacher working day. As was the case with the former issue, stu-
dents did not attend the open house at Bonny Eagle Junior High School.
Also, the relationship between the mandatory attendance policy and the
mandatory bargaining subjects of "hours" and "working conditions" is
clear in that the policy requires teacher attendance at school at a
time well after the end of the normal school day.
While parental involvement in and support for the educational
process is no doubt beneficial to the students' academic success, the
Employer has failed to establish that the specific policy at issue is
so related to educational policy considerations as to outweigh the
attendance policy's prima facie eligibility for mandatory collective
bargaining. Although questions concerning the teachers' mandatory
attendance at the junior high school open house first arose in the
Fall of 1983, those concerns were resolved by the Interim
Superintendent's letter of November 15, 1983 which stated that such
events were voluntary. On September 17, 1984, the Superintendent of
Schools told the Union President that teacher attendance at the junior
high school open houses was mandatory. On September 22, 1984, the
Union promptly demanded that the Employer meet within ten days for the
purpose of negotiating the substance and impact of the mandatory
attendance policy. Since the attendance policy is a mandatory subject
of bargaining, the Employer's refusal to negotiate over said policy
with the Union and the Employer's unilateral implementation thereof
violated Section 965(1)(C) and constituted a prohibited practice in
violation of Section 964(1)(E) of the Act.
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The Union's last contention is that the Employer violated Section
965(l)(D). We have defined that section of the statute as requiring
the parties to reduce to writing and to execute the negotiated collec-
tive bargaining agreement, after agreement had been reached on all
constituent issues by parties vested with authority to reach such
final agreement. AFSCME, Council 74 v. Cumberland County
Commissioners, MLRB No. 83-09, at 12-13 (June 30, 1983). Since we
find that no agreement was reached between the parties in the instant
case, the Employer cannot have violated Section 965(1)(D) 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. Sec. 968(5)(C) (1974),
it is ORDERED:
That the Maine School Administrative District No. 6 Board of
Directors and its representatives and agents shall:
1. Cease and desist from failing and refusing to meet with
the Saco Valley Teachers Association, within 10 days
after receipt of a new written notice from said Union
requesting a meeting for collective bargaining purposes,
to negotiate over the substance and impact of implemen-
tation of the mandatory teacher open house attendance
policy at the Bonny Eagle Junior High School and to
negotiate over the impact, if any, of the implementation
of the after-school tutorial policy at said school upon
the mandatory subjects of bargaining.
2. Cease and desist from refusing to negotiate with the
Saco Valley Teachers Association over the impact, if
any, of the implementation of the after-school tutorial
policy at the Bonny Eagle Junior High School on the man-
datory subjects of bargaining.
3. Cease and desist from refusing to ne gotiate with the
Saco Valley Teachers Association over the substance of
the policy and impact, if any, of the implementation of
mandatory teacher attendance at any open house at the
Bonny Eagle Junior High School having the charac-
teristics described in paragraph 9 of our findings of
fact.
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4. Cease and desist from requiring the attendance of
teachers at any open house at the Bonny Eagle Junior
High School having the characteristics described in
paragraph 9 of our findings of fact unless the pro-
visions of paragraph 3 of this order are complied with.
Dated at Augusta, Maine, this 14th day of March, 1985.
MAINE LABOR RELATIONS BOARD
/s/________________________________
The parties are advised of Edward S. Godfrey
their right pursuant to 26 Chairman
M.R.S.A. Sec. 968(5)(F) (Supp.
1983) to seek review of this
decision and order by the
Superior Court by filing a /s/________________________________
complaint in accordance with Thacher E. Turner
Rule 80B of the Rules of Employer Representative
Civil Procedure within 15
days of the date of the
decision.
/s/________________________________
Harold S. Noddin
Employee Representative
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