STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-04
Issued: June 30, 1986
_______________________________
)
LEWISTON TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
THE LEWISTON SCHOOL COMMITTEE, )
)
Respondent. )
_______________________________)
On October 9, 1985, the Lewiston Teachers Association
(Association) duly filed with the Maine Labor Relations Board (Board)
a prohibited practice complaint alleging that the Lewiston School
Committee (Committee) has refused to bargain with the Association as
required by 26 M.R.S.A. 965(1) (Supp. 1985), in violation of 26
M.R.S.A. 964(1)(E) (1974). More specifically, the Association
alleges that on May 15, 1985, and thereafter, the Committee refused to
bargain over contract proposals tendered by the Association concerning
the following: compensation for work in excess of seven hours per
work day, compensation for each required preparation period in excess
of three per day, compensation for greater than specified department
head or athletic director daily instructional time, compensation for
mandatory attendance at evening open houses, procedures for the reap-
pointment of involuntarily transferred employees, stipends for itin-
erant kindergarten teachers, payments for acquisition of teaching
materials by involuntarily transferred employees, and the retention of
previous contract language regarding academic freedom, employees'
religious and political activities and the privacy of employees' per-
sonal lives.
The Association alleges that the Committee has consistently
refused to bargain over a contract proposal concerning the timely
designation of ultimate supervisors made on February 6, 1985.
The Association also alleged that the Committee has consistently
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refused to bargain a proposal concerning compensation for greater than
specified general instructional time made by the Association on March
27, 1985, and that the Committee has consistently refused to bargain
over a proposal concerning the qualifications of evaluators made by
the Association on August 13, 1985.
The Committee's November 1, 1985 answer and counterclaim admits,
with the following specific exceptions, that the above-mentioned pro-
posals, as set forth by the Association in its complaint, were offered
by the Association on May 15, 1985. The Committee also states that it
refused to bargain over these provisions, after impasse, claiming that
they were not mandatory subjects for bargaining. The Committee
answers by way of exception that its refusals to negotiate Association
proposals concerning kindergarten stipends and reimbursement for
materials acquisitions was inadvertent and that it has unconditionally
offered to reopen negotiations regarding these two mandatorily nego-
tiable proposals.
The Committee also answers that the Association's proposal as set
forth in the complaint with regard to compensation for general
instructional time for teachers other than department heads or ath-
letic directors was presented and refused consideration by the
Committee on August 22, 1985. The Committee also avers that on
August 13, 1985, it refused to negotiate the Association's proposal
set forth in the complaint concerning the establishment of qualifica-
tions for evaluators. The Committee contends that as of May 15, 1986,
the Association's proposals concerning these two subjects were not
mandatorily negotiable and that the Committee was not required to
bargain over modified proposals concerning these issues made "on the
eve of factfinding."
The Committee counterclaims that, with the exception of proposals
concerning itinerant kindergarten teachers and concerning materials
acquisitions, the Association's insistence on the negotiation of each
of the proposals above, past impasse and after the Committee requested
that such proposals be withdrawn, constitutes a refusal to confer,
negotiate and participate in fact-finding in good faith, and a prohib-
ited practice within the meaning of 26 M..R.S.A. 964(B) [sic] (1974).
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The Committee asks that the complaint be dismissed and that the Asso-
ciation be ordered to "cease and desist from insisting upon bargaining
with respect to proposals which are not mandatory and negotiable sub-
jects for bargaining."
On November 12, 1985, Alternate Chairman Donald W. Webber con-
ducted a prehearing conference in this matter. The Prehearing
Conference Memorandum and order issued by Alternative Chairman Webber
on December 30, 1985, is incorporated in and made a part of this deci-
sion and order. As a result of the parties' prehearing agreement, the
following factual issues were submitted to the Board for resolution:
1. At the point of impasse, had the Association made known
its willingness to consider alternative formulations to
its initial proposal requiring limits on the amount of
general instructional time?
2. What is the primary purpose of open houses in the
Lewiston School System, and what was the history of
these open houses with respect to mandatory teacher
attendance and compensation?
On January 8, 1986, the Board, consisting of Alternate Chairman
William M. Houston, presiding, Thacher E. Turner, Employer Represent-
ative, and George W. Lambertson, Employee Representative, conducted an
evidentiary hearing concerning the issues framed by the complaint and
response and narrowed by the Prehearing Conference Memorandum and
Order. The parties were afforded full opportunity to appear, to pre-
sent testimonial and documentary evidence, to cross-examine witnesses
and to argue orally. Both parties filed initial and reply briefs, the
last of which was filed March 27, 1986. The Board's final delibera-
tions concerning the issues in the cause occurred on Wednesday,
June 25, 1986.
JURISDICTION
We conclude that the Board has jurisdiction over this controversy
pursuant to 26 M.R.S.A. 968(5)(1974). The complaint and counter-
claim allege violations of the obligations to bargain and to par-
ticipate in fact-finding in good faith prescribed in 26 M.R.S.A.
965(1)(C) and (E) (Supp. 1985), which violations are specifically pro-
hibited by 26 M.R.S.A. 964(1)(E) and (2)(B) (1974).
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FINDINGS OF FACT
The parties were able to stipulate, to a considerable extent, the
relevant facts underlying the controversy. Those factual stipulations
have been substantially incorporated in the Board's findings of fact.
Based upon the parties' stipulations and admissions, observation of
the demeanor of the witnesses, the content of the testimonial and
documentary evidence and reasonable inferences drawn therefrom the
Board makes the following findings of fact.
The Association is the duly certified collective bargaining agent
for a unit of certificated professional employees of the Lewiston
School Committee within the meaning of 26 M.R.S.A. 962(2) (1974).
The Committee is the public employer of the employees in that bargain-
ing unit within the meaning of 26 M.R.S.A. 962(7) (Supp. 1985). The
Committee and the Association were parties to a collective bargaining
agreement in effect from about September 1, 1983, until August 31,
1985. Eight negotiation sessions were held in an attempt to negotiate
a successor to that agreement commencing January 9, 1985 and ending on
May 15, 1985. There is no indication in the record that the Committee
requested that permissive subjects be removed from negotiations prior
to impasse.
At the parties' May 15, 1985 negotiating session the Associa-
tion's Chief Negotiator, Mary Saltis, presented, among other pro-
posals, the Association's proposal concerning limitations on
instructional time. In discussion concerning that proposal Saltis
informed the Committee that if the Committee desired to remove.the
past contractual language containing limitations on general instruc-
tional time, which to that point the Association had requested be
retained, the Association desired to negotiate a formula for compen-
sation of teachers forinstructional time exceeding specified amounts.
After presentation of this alternative proposal the parties caucused.
Thereafter, the Association made unspecified changes in some unspec-
ified proposals. However, no exact formula for compensation regarding
general instructional time was presented after the caucus. The par-
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ties reached and declared impasse in negotiations later that evening.fn1
As of May 15, 1985, the Association's proposals included the
following:
[VIII.A.2.] Whenever the employee's workday exceeds
seven hours, reimbursement for the excess shall be made at
the rate of (yearly salary divided by 180 days divided by 7
hours) per hour. Thirty (30) minutes will be reimbursed as
a whole hour.
[VIII.B.2.] Whenever Junior and Senior High School
teachers are assigned class loads requiring more than three
(3) individual preparations at any one time, reimbursement
shall be made according to the following formula: (number
of preps in excess of 3 x (yearly salary/3) + yearly salary.
Two (2) or more sections of any course (such as in academic
biology and career biology; or French I: French speaking
and French non-speaking; or college chemistry and vocational
chemistry) shall constitute a single preparation not-
withstanding the fact that the sections may not be working
on the same assignments at any given time.
[VIII.B.4.] Instructional time in the Junior and
Senior High Schools shall not exceed 260 minutes per
teacher, per day, with the exception of those involved in
block schedule teaching assignments such as vocational
instruction whose assignments shall not exceed 290 minutes
per day per teacher. Instructional time in the Elementary
Schools shall not exceed 300 minutes per-teacher, per day,
such minutes to include appropriate subject areas according
to the instructional schedule as promulgated from time to
time by the School Committee. [If the Committee desires to
remove these limitations the Association proposes a formula
for compensation of teachers for instructional time exceeding
specified amounts.]
[VIII.B.5 & 6] Whenever a department head, or athletic
director is assigned instructional time in excess of 4/5 of
the instructional time of a regular teacher, reimbursement
shall be made according to the following formula: (yearly
salary + 1/5 yearly salary).
[VIII.D.1.] Mandatory attendance at evening open
houses shall be reimbursed according to the formula set
forth in Section A.2.
[XII.E.] The immediate supervisor responsible for eval-
uations, scheduling, budget materials and/or other
_______________
1 In the absence of other evidence on point we have adopted the
parties' stipulation that they reached impasse on May 15, 1985.
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administrative policies for employees assigned to more than
one building shall be designated by October 1 of each year
by the Superintendent. If an employee is assigned to more
than one school in a single day, that employee's assigned
supervisor shall resolve any conflicts that may arise as to
instructions to that employee by one or more of the
Administrators of the schools involved.
[XIV.D.] If the position the employee is leaving from
should reopen prior to October 15 following the transfer,
whenever or wherever the School Committee determines that it
is practicable, the employee shall be offered a return to
his original position. An itinerant kindergarten teacher
shall receive an additional stipend of $500.00.
[XIV.F.] A classroom teacher being involuntarily
transferred to a different grade level, specialty or area of
study in another department shall be-provided a maximum of
$50.00 to acquire teaching materials for the new position.
[XVI.E.] Employees shall be evaluated by the
Superintendent and/or an Assistant Superintendent and/or a
principal and/or personnel certified in school administra-
tion and/or school supervision and/or combined certification
in administration and supervision and/or department heads
within their respective disciplines at Lewiston High School.
[XXV.A.] The personal life of an employee is not an
appropriate concern of the Committee except as it may
directly prevent the employee from performing properly his
assigned functions during the workday.
[XXV.B.] Employees shall be entitled to full rights of
citizenship, and no religious or political activities or any
employee or lack thereof shall be grounds for any discipline
or discrimination with respect to the professional employment
of such employee, providing said activities do not violate
any Local, State or Federal Law.
[XXV.C.] The Committee and the Association agree that
academic freedom is essential to the fulfillment of the pur-
poses of the Lewiston School System, and they acknowledge the
fundamental need to protect employees from any censorship or
restraint which might interfere with their obligation to
pursue truth in the performance of their professional func-
tions. Accordingly, they agree as follows:
(i) Employees shall be guaranteed full freedom in
classroom presentations and discussion and
may introduce politically, religiously or
otherwise controversial material, provided
only that said material is relevant to the
course content, is presented in an objective
manner and is presented with a balanced view.
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(ii) In performing their professional functions,
employees shall be guaranteed full freedom in
expressing their personal opinions-on all mat-
ters relevant to the course content, pro-
vided, however, that they shall indicate that
they are speaking personally and not on
behalf of the school, its administration, or
the Committee.
The Association filed for mediation on May 28, 1985 and mediation
sessions took place on June 19, June 27, August 13 and August 19,
1985. On June 28, 1985, the Association submitted a sufficient
request for fact-finding which was received by the Board on July 1,
1985. Among the contract provisions identified in the request as
issues in controversy were those contractual provisions to which the
Association's proposals above pertained.
On August 15, 1985, the Committee demanded "the Association
withdraw all bargaining proposals which are not mandatory subjects for
bargaining and that the Association cease and desist from any further
insistence on bargaining with respect to any proposal which is not a
mandatory subject for bargaining." The Association declined and pre-
sented each of the proposals set forth above to the fact-finding
panel. However, the Association modified its position on instruc-
tional time by proposing to add the following:
[VIII.B.4.] When increases to the above instructional time
are made, the teacher shall be compensated at the per them
rate divided by 28 (7 hours x 4 quarter hour) for each block
of 15 minutes or fraction thereof.
With regard to the qualifications of performance evaluators the
Association offered to delete its prior proposal and to substitute
the following:
[XVI.E.] Employees shall be evaluated by personnel trained
and certified in the evaluation and supervision of public
school employees.
A hearing was conducted on August 27 and 28 and a report of the fact-
finding panel issued on August 29, 1985.
At the fact-finding hearing, the Committee maintained its posi-
tion that the proposals at issue set forth above were not mandatorily
negotiable subjects for bargaining. The Committee declined to submit
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these issues to the fact-finding panel and during the course of the
fact-finding hearing, the Association acceded to the Committee's
request that the fact-finders not rule upon such issues. The fact-
finding panel took no action with respect to the latter issues, and
the parties reached agreement on all other contract matters remaining
in dispute. Subsequent to fact-finding, the parties agreed to
conclude and execute a successor collective bargaining agreement, and
executed a non-waiver agreement, preserving the right to litigate
issues concerning the negotiability of the Association's proposals
before the Board.
On October 15, 1985, the Committee's counsel wrote to the
Association acknowledging that an error had been made with respect to
the Association's proposals regarding stipends for itinerant kinder-
garten teachers and material acquisitions by involuntarily transferred
employees. The Committee made an unconditional offer to reopen nego-
tiations with respect to these two items. The Committee's offer of
negotiation contained counter-proposals on both subjects. In a
letter to the Committee dated October 23, 1985, the Association stated
that it desired to reserve negotiation with respect to these two items
until after the prohibited practice proceeding was completed.
The Committee has not proposed to change the length of the school
day, the amount of instructional time or traditional teacher loads.
The Lewiston School System has had open houses for many years. In a
recent grievance arbitration, the Association argued that provisions
of the parties' collective bargaining agreement precluded the
Superintendent or School Committee from prohibiting an elementary
school teacher from using a certain book in teaching her class.
The School Committee argued that the Association's cited contract
provisions do not preclude such a prohibition.
______________
2 The offer of negotiation appears to place the Committee at the
Association's disposal with regard to resuming negotiations on these
issues and does not constitute a demand to bargain within the meaning
of 26 M.R.S.A. 965(1)(B) (Supp. 1985).
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POSITIONS OF THE PARTIES
The Association contends that its proposals regarding compen-
sation for greater than specified daily work hours, compensation for
greater than specified general and athletic director/department head
instructional time and compensation for greater than specified class
preparation periods, along with its proposals concerning compensation
for attendance at mandatory open houses, stipends for itinerant kin-
dergarten teachers and reimbursement for materials acquisitions by
involuntarily transferred employees all constitute wage proposals
addressing negotiable wage impact. Several previous contract provi-
sions had the effect of limiting the Committee's prerogative with
regard to various subjects clearly within the realm of educational
policy. A number of the proposals made by the Association were made
in anticipation of possible consequences of the Committee's decision
to withdraw these provisions concerning permissive bargaining sub-
jects.
The Association admits that up to May 15, 1985, its proposals
concerning general instructional time sought the retention of limits
which the existing contract set on the amount of instructional time
which could be required. The Association contends, however, that on
May 15, 1985, in recognition of the Committee's prerogative concerning
the ability to prescribe the amount of instructional time, it revised
its proposal of limits to general instructional time and alternatively
proposed a formula addressing additional compensation for instruc-
tional time exceeding specified amounts. The Association also con-
tends that although on May 15 it had proposed the retention of
contract language specifically designating evaluators, its revised
proposal at fact-finding merely required that evaluators selected by
the Committee be trained and certified in the evaluation of public
employees.
The Association contends that although the mandatory open
houses required by the Committee are general get-acquainted sessions
for parents and staff, rather than forums for parent-teacher confer-
ences, the Board need not resolve the nature of these open houses
because the Association's open house proposals seek only compensation
for open house attendance and not limits on the Committee's authority
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to schedule open houses or require that they be attended.
The Association contends that its proposal concerning the
assignment of ultimate supervisors and its proposals concerning the
qualifications of evaluators involve mandatorily negotiable working
conditions and cause no substantial restraint on the City's preroga-
tive to evaluate employees and assign supervisory personnel. The
Association avers that its proposal requiring restoration of involun-
tarily transferred employees creates merely a procedural right which
places no substantive limits on the Committee's exercise of educa-
tional policy.
The Association contends that its proposals which restrict the
Committee's disciplinary authority with regard to employees' lawful
religious and political activity and with regard to aspects of
employees' personal lives which do not interfere with proper job per-
formance, concern mandatorily negotiable working conditions. The
Association also contends that its proposals regarding academic
freedom secure the alleged substantive constitutional rights to freely
determine the teaching methods to be used in teaching any courses
which the Committee has determined will be taught and where relevant
to course content, to freely express personal opinions and to intro-
duce politically, religiously or otherwise controversial material into
the classroom. The Association also contends that its proposals
concerning academic freedom create a procedural right which does not
impinge on the Committee's educational-policy prerogatives.
The Association concedes that the Committee is not required to
complete negotiations concerning impact before implementing its educa-
tional policy decisions but insists that, upon request, such nego-
tiations must be initiated in advance of implementation.
The Committee contends that with the exception of the Associa-
tion's proposals concerning stipends for itinerant kindergarten
teachers and payments for teaching materials for involuntarily trans-
ferred teachers, the Association's proposals concern educational
policy and are not mandatory collective bargaining subjects. The
Committee contends that the Association's insistence upon bargaining
nonmandatory subjects up to and beyond impasse constitutes a prohib-
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ited practice. The Committee contends that the Association's propos-
als concerning the impact of changes in the length of the work day,
the impact of required attendance at open houses, and the impact of
both decisions concerning instructional time and the assignment of
teacher loads requiring more than three preparations are untimely
because the Committee is under no duty to negotiate the impact of a
change in educational policy unless and until such a change is imple-
mented.
The Committee contends that by insisting to impasse on nonman-
datory proposals concerning the identity of evaluators and general
teacher instructional time and by then later offering amendments to
such proposals to make them mandatory, the Association has imper-
missibly raised new issues after the point of impasse.
The Committee also contends that the Association's proposal con-
cerning open houses is not mandatory because the presence of parents
at the school is sufficient to remove that portion of the working day
from the area of collective bargaining. The Association's proposal
concerning the designation of ultimate supervisors is contended by the
Committee to unspecifiedly impinge upon the prerogative of the
Committee to assign and direct its supervisors. The Committee objects
that the Association's proposal concerning reappointment of involun-
tary transfers would impermissibly subject the Committee's deter-
mination in this regard to grievance arbitration. The Committee
contends that the Association's proposal concerning personal privacy
unlawfully limits the Committee's discipline, dismissal and nonrenewal
decisions to a standard other than just cause and is, therefore, non-
mandatory. Additionally, the Committee contends that this proposal is
"invalid" because it is not limited to continuing contract teachers
but applies to probationary teachers as well.
The Committee contends that the Association's proposals con-
cerning academic freedom improperly apply to probationary employees,
contain a standard varying from just cause, and impinge upon the
Committee's exclusive statutory authority to determine what subject
matter teachers will teach and the methods and materials whereby it is
taught. The Committee asserts that the Association's proposal con-
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cerning employees' religious or political activities is nonmandatory
for the same reasons which it has advanced regarding the Association's
academic freedom and personal privacy proposals.
Finally, the Committee admits that the Association's proposals
concerning stipends for itinerant kindergarten teachers and concerning
materials acquisitions by involuntarily transferred employees are man-
datorily negotiable subjects which the Committee inadvertently refused
to negotiate.
DISCUSSION
The record before the Board in this case contains little evidence
with regard to the events which transpired in collective bargaining
negotiations leading up to the parties' mutual declaration of impasse.
We are therefore restrained in our ability to determine whether the
totality of either party's conduct constitutes a refusal to bargain or
bargaining in bad faith. We have therefore made no determination in
this regard. With two very limited exceptions the record contains no
indication of the extent to which the proposals at issue were modified
prior to impasse, or whether other proposals or counterproposals may
have been offered and rejected. The issues of negotiability of the
proposals under consideration herein, therefore, are couched, with
noted exception, in circumstances of steadfast Association insistence
upon negotiation and equally steadfast Committee refusal to bargain.
Owing to the posture of the case, resolution of the prohibited prac-
tices charged appears similar in form to resolution of broad nego-
tiability issues posited by way of requests for interpretive ruling.
However, since we do not wish to encourage tne resolution of
bargaining issues through prohibited practice complaint proceedings,
we have accordingly limited our determinations of negotiability to the
specific terms of the bargaining proposals under consideration.
Impact
The Board has consistently held that upon receipt of timely
request therefor, the employer must negotiate the impact of the imple-
mentation of educational policy upon the mandatory subjects of
bargaining. See, e.g., Saco Valley Teachers Association v. M.S.A.D.
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No. 6 Board of Directors, Nos. 85-07 and -09 Ne.L.R.B. Mar. 14,
1985); East Millinocket Teachers Association v. East Millinocket
School Committee, No. 79-24 (Me.L.R.B. Apr. 9, 1974); Caribou Teachers
Association v. Caribou School Department, No. 76-22 (Me.L.R.B.
Nov. 10, 1976); Westbrook Teachers Association v. School Committee of
the City of Westbrook, No. 74-17 (Me.L.R.B. Aug. 21, 1974).
In Saco Valley we stated, at page 16, quoting Southern Aroostook
Teachers Association v. Southern Aroostook Community School Committee,
Nos. 80-35 and -40, slip op. at 18 (Me.L.R.B. Apr. 14, 1982), that:
The duty to meet and consult does not include the require-
ment that the employer wait until impact bargaining is
completed before implementing changes in educational
policy; once the duty to meet and consult has been satis-
fied" the change can be implemented. See, e.g., M.S.A.D.
No. 43 Teachers Association, [M.L.R.B. 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 practical 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.
Contrary to the Committee's interpretation of this portion of our
decision, it was not intended to stand for the proposition that timely
requested impact bargaining need not be commenced until after
implementation of the educational policy from which it arises.
Although conclusion of timely requested bargaining concerning the
impact of educational policies decisions is not generally required,
absent extraordinary circumstances not present in the instant contro-
versy an employer must commence timely requested collective
bargaining regarding the impact of educational policies decisions
prior to implementation and never later than 10 days after a timely
and sufficient notice made pursuant to 26 M.R.S.A. 965(l)(B) (Supp.
1985).fn3 A prerequisite to the ability to request such impact
_______________
3 The employer is also required to bargain, upon request, over any
new impact flowing from the implementation of educational policies
decisions which was reasonably unforseeable prior to or at the imple-
mentation of the educational policies decision.
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bargaining is reasonable notice made to the bargaining agent of the
intended determination of educational policies. Because notice of the
intended determination of educational policies decisions is also
required to enable the bargaining agent to request and the parties to
complete "meet and consult" procedures concerning such decisions prior
to their implementation, a bargaining agent will generally receive
adequate impact notification simultaneously with the employer's noti-
fication of the intended determination of educational policies.
However, because the "meet and consult" and "mandatory impact"
bargaining obligations are independent, circumstances constituting
waiver of "meet and consult" notification will not automatically
excuse the notification required to facilitate impact bargaining.
In Saco Valley we determined that the school board had not
refused to bargain by failing to negotiate the impact of a change in
educational policy, more specifically the implementation of an after-
school tutorial program, prior to implementing the policy. Our deci-
sion and holding in that case was, however, based upon unique circum-
stances, principal among which was the union's substantial delay in
requesting negotiations. Although the union was aware of the develop-
ment of educational policy in the spring and the proposed implemen-
tation of the policy at the beginning of the subsequent school year,
the union's demand to bargain the substance and impact of the imple-
mentation of the policy was not made until the last week in September
of the new school year. The Committee's reliance upon Saco Valley to
excuse its refusal to bargain over anticipated impact was, therefore,
misplaced. As is more fully set forth below we conclude that by
refusing to negotiate such reasonably anticipated impact with regard
to various compensation proposals land proposals concerning both sti-
pends for kindergarten teachers and payments for acquisition of
teaching materials by involuntarily transferred employees, the
Committee has violated its obligation to bargain and has committed a
prohibited practice within the meaning of 26 M.R.S.A. 964(1)(E)
(1974).
The Educational Policies Standard
City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387
(Me. 1973) is the lodestar which the Board has used for more than a
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decade in determining the applicability of the "educational policies"
exemption where, as in the instant case, the exemption has been
asserted by an employer to avoid negotiation over subjects sought to
be negotiated by the collective bargaining agent of teachers.
Elucidating the "exclusionary" standard of educational policies as it
relates to the "inclusionary" collective bargaining standard of
working conditions Justice Wernick, in pertinent part, stated:
"[E]ducational policies" and "working conditions" may be
reasonably conceived as categories defining areas with
essential purity at the extremities but with inter-
mediate zones of substantial intermixture. Thus, in the
controversies between teachers and their public employers
(currently prevalent throughout the country), even if
some of the concrete items in dispute may be readily
classifiable at the pure extremes of "policies" or
"working conditions", it is undeniable that by far the
major portion lie in the intermediate areas with sub-
stantial intermixings.
How, then, is exclusionary and inclusionary class-
ification under the Maine statute rationally to proceed?
Again, as already discussed (ante at p. 413), the key is
found in ascertainment of the legislatively prescribed
direction of emphasis by which particular features of
one classification must be considered legislatively
subordinated to factors of the opposed classification.
The legislative language on its face sufficiently
offers an answer for these purposes. The crucial words
appear in Section 965, subd. 1, par. C. After first
clarifying that the obligation to bargain includes the
duty
"To confer and negotiate in good faith with
respect to wages, hours, working conditions
and contract grievance arbitration . . .",
the statute immediately thereafter specifies, in parti-
cular relationship to the public employers of teachers,
the exception that
"public employers of teachers shall meet
and consult but not negotiate with respect
to educational policies . . .."
Had the legislature seen fit to end its recitation
at this point, it might be held a reasonable conclusion
that the concept of "educational policies" was legis-
latively intended broadly to mandate continuance of the
unilaterally exclusive powers of school boards to
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"supervise" and "manage" the public schools--as such
powers had been traditionally conferred by statute
prior to the enactment of the Municipal Public Employees
Labor Relations Law; and that, therefore, any concrete
item tending to impinge upon any area ordinarily con-
ceived as "supervision" or "management" must be excluded
as an appropriate subject of mandatory collective bar-
gaining regardless of its concomitant relationships to
the "working conditions" of teachers.
It is of extreme significance, therefore, that in
Section 965, subd. 1, par. C the legislature revealed
that it was not content to leave the language as above
set forth--thereby to open the door to the extreme
"exclusive-management-prerogatives" interpretation
above indicated. On the contrary, the legislature was
careful, explicitly and definitively, to insert addi-
tional language having strong tendency to show that
"educational policies" was legislatively intended to
be restrictively, not broadly, conceived--specifically
that "for the purpose of this paragraph" the calculated
meaning is that
"educational policies shall not include wages,
hours, working conditions or contract griev-
ance arbitration."
Such double emphasis by the legislature upon the
overriding importance of the concept of "working con-
ditions" in relation to the collective bargaining
process,--first, that by affirmative definition teacher
"working conditions" are explicitly included within
mandatory collective bargaining and, second, that by
negative exclusion "working conditions" are eliminated
from the limitational effects of "educational policies"--
signifies, most clearly in my view, a legislative design
that the general doctrine of "unilaterally exclusive
managerial prerogatives" must not be permitted to operate
as an instrumentality by which all practical substance
may be scooped out of the concept of teacher "working
conditions", to transform teacher collective bargaining--
in marked contradistinction to the collective bar-
gaining of all other public employees--into a litany
noble in sound but hollow in reality.
More particularly, I interpret such double legis-
lative emphasis upon the "working conditions" of teachers
to mean that the legislature intended that teacher
"working conditions" shall be bilaterally negotiable in
collective bargaining and subject to binding arbitration
(except for "salaries, pensions and insurance") notwith-
standing that they touch upon one specific "managerial"
function with which, as a practical matter the "working
conditions" of teachers are almost invariably inter-
-16-
connected--i.e., the organization, supervision, direction
and distribution of working personnel. Since decisions
concerning almost every "working condition" of teachers
will tend to encroach upon the "managerial" organization,
supervision, direction or distribution of the working
personnel, were this single facet of "managerial"
functioning to be permitted to accomplish, under the
category "educational policies", a per se automatic
exclusion of teacher "working conditions" from the
collective bargaining process, there would result
precisely that emasculation of "working conditions"
as a mandatory subject of collective bargaining and
of binding arbitration which, as above indicated, the
legislature--by its specially reiterated emphasis upon
"working conditions"--must reasonably be interpreted
to have sought to prevent.
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 collective 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 exclu-
sion from negotiability and binding arbitration, only if,
on balance, their quantitative number or qualitative
importance, or both, are found significantly substantial
to override the prima facie eligibility for collective
bargaining and binding arbitration established by the
presence of reasonable relationships to "working
conditions."
City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387,
418-420 (Me. 1973). We shall now apply this standard to the proposals
in the instant case to determine whether the Committee's refusals to
bargain were permitted under the rubric of the "educational policies"
exclusion.
Compensation and Payment Issues
We have carefully examined those portions of the record which
concern the issue of whether the Association informed the Committee,
prior to impasse, of its desire to negotiate a compensation formula
in the event the Committee refused to maintain contractual language
concerning the nonmandatory subject of limitations on general instruc-
tional time. We conclude that the Association's proposals regarding
the negotiation of issues of general instructional time were made in
-17-
the alternative prior to impasse.
We credit the testimony of the Association's chief negotiator and
secretary that the prosposal in the alternative was orally made in
negotiations on May 15, 1985. The evidence establishes that the
Association's working copy of its contract proposals contains nota-
tions made prior to the negotiation sessions, suggesting negotiation
of a compensation formula in the event of the Committee's rejection of
the contract's present language. Although the Association's secre-
tary's notes contain no express record of the chief negotiator's oral
modification of the Association's original position, the testimony of
the secretary established that a copy of the modified draft proposal
was already in her possession at the negotiations, that the comments
of the Association's chief negotiator concerning the alternative pro-
posals did not vary from that copy and that the secretary would have
recorded only variations from the modified draft's proposals.
The Association's alternative proposal regarding compensation for
general instructional time is similar in effect to several of the
Association's other proposals suggesting compensation schemes
regarding permissive contractual subjects requested to be deleted from
the contract by the Committee. Moreover, it is identical in effect to
the Association's proposals regarding compensation for greater than
specified instructional times for department heads and athletic
directors.
In light of these facts, we conclude that the proposal regarding
general instructional time was made in the alternative prior to
impasse. The record does not establish that the Association con-
ditioned its consent to bargain over any mandatory subject sought to
be bargained by the Committee, on the Committee's consent to negotiate
the nonmandatory subject of limitations on general instructional time.
On the contrary, we conclude that the manner of the making of the
Association's alternative proposals constitutes a reasonable effort by
the Association to determine whether the Committee desired to avoid
negotiations concerning a compensation formula by agreeing to maintain
contractual language concerning the permissibly negotiable subject of
limits on instructional time.
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Finally, we note that the parties' stipulation appears to
establish that the Association's general instructional time proposal,
as presented to the fact-finding panel, contained the original
language setting forth limitations, as well as added language spe-
cifying the method of compensation for excess amounts of instructional
time. Although inartfully phrased, the modified proposal as a whole
cannot be construed to impose a limit on the amount of instructional
time which the Committee may require of employees.
We conclude that the Association's proposals concerning compen-
sation for work in excess of seven hours per work day, compensation
for each required preparation period in excess of three preparation
periods per day, compensation for greater than specified general
teacher and department head/athletic director instructional times,
compensation for mandatory attendance at evening open houses and sti-
pends for itinerant kindergarten teachers are all pure wage issues.
These proposals address wages alone and do not require the Committee
to bargain over its educational policy prerogative to unilaterally
determine, after satisfying any obligation to meet and consult, the
length of the teachers' work days; the numbers of preparation periods,
if any, which may be allowed or required of teachers; the amount of
instructional time which may be required of regular teachers, depart-
ment heads or athletic directors; the existence of or frequency of
evening open houses, or whether teacher attendance thereat may be man-
datorily required; whether kindergarten teachers may be employed or be
required to travel from place to place; or whether the Committee may
involuntarily transfer an employee.
We conclude that these proposals lie at the extreme "working con-
ditions" end of the educational policies standard set forth above.
Although agreement to these proposals may impinge on educational poli-
cies decisions in other areas, the requirement that teachers' working
conditions be negotiated would be meaningless were we to allow educa-
tional employers to avoid negotiation on the basis of this spectre.
It should be noted that agreement to such proposals is not required by
the Municipal Act and, to the extent that these proposals concern
salary, they may not be imposed through binding arbitration.
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Finally, we conclude that it may not reasonably be disputed that
limited payments to teachers, for the acquisition of teaching
materials, constitutes a working condition. we have not been apprised
of any fundamental Committee interest which would operate to exclude
this subject on educational policy grounds. Therefore, given the
Committee's admission of bargainability, we find the Association's
proposal in this regard to be mandatorily negotiable.
Designation of Supervisors
We now turn to the determination of the negotiability of the spe-
cific Association proposal regarding the assignment or designation of
supervisors. An Association proposal that the Commit@ee negotiate
regarding a method whereby employees may be apprised of the
Committee's expectations concerning the resolution of competing or
contradictory supervisory demands certainly addresses a negotiable
working condition. While it clearly is educational policy as to whom
the committee designates as its supervisors and administrators, it,
nevertheless, is within the employee's working conditions for him to
know to whom he is responsible. Thus, employees may generally request
to bargain over a method whereby they may be informed of the identity
of their supervisors but they may not insist that they be allowed to
participate in the process of the identification or selection of those
supervisors by the Committee.
The specific proposal in issue in this case goes beyond this to
require negotiation over matters affecting educational policies. The
Association's proposal, taken as a whole, has the impermissible second-
ary effect of requiring the Committee to designate only one super-
visor, of demanding that the Committee concentrate all management
functions concerning each employee in that supervisor, and of limiting
the reconciliation of competing requirements for employee performance
to an immediate supervisor and no other. Moreover, the proposal has
the effect of restricting the Committee's ability to invest ultimate
supervisory authority over each of its employees on a less than yearly
basis. The record contains no evidence of an attempt by the Associa-
tion to bargain anything less than the entire proposal in this regard.
-20-
Because we are unable to isolate any discrete aspect of the pro-
posals as stated, in which teacher interests in working conditions are
not outweighed by the implicated educational policy considerations, we
find that the Committee's refusal to bargain this proposal does not
constitute a prohibited practice.fn4
Religious, Political and Academic Freedom
and Right to Privagy
For reasons similar to those discussed above regarding the
Association's proposal concerning designation of ultimate supervisors,
we conclude that the Committee has not committed a prohibited practice
by refusing to negotiate the Association's specific proposals con-
cerning personal privacy, concerning rights of citizenship, religious
and political activities, and concerning academic freedom. Each of
the Association's proposals regarding these three areas addresses both
negotiable working conditions and non-mandatory educational policies.
However, the specific provisions of these proposals have defied our
considered attempts to classify any portions thereof as discrete,
severable and mandatorily negotiable. We shall now discuss, seriatim,
each of these three proposals.
Employees are obviously not required to abandon their right to
personal privacy when they pass through the schoolhouse door. It
follows, therefore, that an Association proposal seeking the
Committee's agreement that the Committee will not require waiver of
these rights as conditions of employment would be mandatorily nego-
tiable as a working condition. However, we are loath to conclude, as
is apparently required by the specific wording of the Association's
proposal, that all aspects of a teacher's life which do not "directly
prevent the employee from performing properly his assigned function
during the workday" are outside the proper concern of the Committee.
For example, it is conceivable that such a provision would condone a
teacher's inability to complete job-related functions customarily per-
formed by teachers at times other than during the workday such as
_______________
4 In so ruling we are cognizant of the requirements set forth by
the Superior Court in M.S.A.D. No. 43 v. M.S.A.D. No. 43 Board of
Directors, No. CV-79-541 (Me. Super. Ct., Ken. Cty, July 8, 1980).
-21-
grading papers, preparing lesson plans, or attending continuing educa-
tion courses. Furthermore, there may be other activities or con-
ditions inherent in certain teacher's private lives which affect their
fitness to teach. Persons who have admitted or who have committed
various drug or sexual offenses may well be considered unfit to teach
by the Committee, although in a purely functional sense they may be
capable of adequately performing their teaching functions during the
workday.
Similarly, an Association proposal requesting the Committee's
agreement not to require surrender of religious or political rights as
a condition of employment would be nvandatorily negotiable as a working
condition. However, we conclude that the Committee is not required to
relinquish totally its authority to regulate the conduct of teachers
in the presence of students at school merely because such conduct
could be characterized as political or religious.
The contours of the academic freedom aspect of the right of free
speech guaranteed by both the United States and Maine constitutions,
see Solmitz v. Maine School Administrative District No. 59, 495 A.2d
812, 816 n.2 (me. 1985), have been widely debated. See, e.g.,
Goldstein, The Asserted Constitutional Right of Public School
Teachers to Determine What They Teach, 124 U. Pa. L. Rev. 1293 (1976);
Hunter, Curriculum Pedagogy, and The Constitutional Rights of
Teachers in Secondary Schools, 25 Wm. & Mary L. Rev. 1 (1983); McCann,
School Board Authority and The First Amendment Rights: The View
After Board of Education, Island Trees v. Pico, 18 Akron. L. Rev. 283
(1984); Schauer, School Books, Lesson Plans and The Constitution, 78
W. Va. L. Rev. 287 (1976); Developments in the Law, Academic Freedom,
81 Harv. L. Rev. 1045 (1968).
It is not the role of this Board to determine constitutional
issues such as whether the contours of academic freedom in the context
of university education, see Keyishian v. Board of Regents of the
University of the State of New York, 385 U.S. 589 (1967), and in the
context of secondary education, see Solmitz v. Maine School
Administrative District No. 59, 495 A.2d 812 (Me. 1985), are the same
with regard to kindergarten and elementary school students. See
-22-
generally Freeman, The Supreme Court and First Amendment Rights of
Students In The Public School Classroom: A Proposed Model of Analysis,
12 Hastings Const. L. Q. 1, 14-17 (1984) (pointing out the widely
accepted "inculcative" role of teaching in elementary education as
opposed to the concept of the "market of ideas" generally accepted
concerning higher education, pointing out the captive nature of the
elementary audience, the lower capacity for skepticism and idea
screening of elementary students and the differences in qualifications
required of the teachers in elementary as opposed to university
education).
It is sufficient for the resolution of the negotiability issue
before us to note that whatever the contours of such academic freedom
rights and regardless of whether the specific Association proposals at
issue herein are otherwise coextensive therewith, the Association's
proposals admit of no authority in the Committee to avoid any
"disruption of educational activities," which may result from the
exercise of the academic freedom rights purported to be secured
therein. See Solmitz v. Maine School Administrative District No. 59,
495 A.2d 812, 817 (Me. 1985). Because the Association's proposal
requires surrender of this aspect of the Committee's educational poli-
cies discretion, it is non-mandatory.
As was the case with the Association's proposal regarding
designation of ultimate supervisors, the record contains no evidence
of an attempt by the Association to bargain anything less than the
entirety of each of the three proposals discussed next-above.
Similarly, because we are unable to isolate any discrete aspect of
these proposals in which teacher interests in working conditions are
not outweighed by implicated considerations of educational policy, we
find no violation by the Committee.
Reappointment of Involuntarily Transferred Employees
Although the record is unclear and the express wording of the
proposals does not so specify, the Association states in its brief
that its proposal concerning reappointment applies only to involun-
tarily transferred employees. Upon consideration of the provisions of
-23-
this proposal we conclude that it is not mandatorily negotiable. It
cannot be argued that procedural rights concerning preference in reap-
pointment to a previously held position fall initially within the
definition of interests affecting working conditions within the
meaning of 26 M.R.S.A. 965(1)(C) (Supp. 1985). However, we conclude
that the Association's specific proposal in this regard goes far
beyond procedure. We reach this conclusion based upon the
Association's use of the word "practicable" in its proposal.
In common understanding the word "practicable" means "that
[which] can be done or put into practice; feasible." Webster's New
World Dictionary of the American Language (1974). Thus, the use of
the word practicable in the Association's proposal appears to attempt
to vest a near alsolute right of reappointment. We conclude that the
provisions of the proposal in question create more than a procedural
right concerning reappointment as is suggested by the Association.
The proposal's specific provisions improperly subject the Committee's
decisions with regard to both hiring and the lateral transfer of
teachers to independent assessment of "practicability" by contractual
arbitrators. We therefore conclude that the Association's insistence
upon negotiating this provision constitutes a demand that the
Committee negotiate matters concerning interests affecting employee
working conditions which are overwhelmed and submerged by overriding
employer interests fundamental to the setting of standards of educa-
tional services. We therefore conclude that the Committee was not
required to negotiate this proposal.
The Identity or Qualifications of Evaluators
In its present form, the Association's proposal is not a man-
datory subject of bargaining. It intrudes into areas of educational
policy since it attempts to identify and define who shall be the eval-
uators. This issue along with the qualifications of those evaluators
must remain a prerogative of the Committee.
This Board has determined'that such matters as the frequency and
form of evaluations, Caribou School Department v. Caribou Teachers
Association, No. 76-15 (Me.L.R.B. Jan. 19, 1977), are matters of
-24-
educational policy and not mandatory subjects of bargaining.
Conversely, we have found that there is an obligation to bargain the
impact of the implementation of new evaluation programs. Saco Valley
Teachers Association v. M.S.A.D. No. 6 Board of Directors, No. 79-56
(Me.L.R.B. Aug. 9, 1979). In M.S.A.D. No. 43 v. M.S.A.D. No. 43
Teachers Association, No. 79-36 (Me.L.R.B. Mar. 18, 1981) we deter-
mined that a proposal that each teacher will receive a copy of the
evaluation criteria and form at the beginning of the school year is a
mandatory subject of bargaining. So, too, do we determine that it is
a mandatory subject of bargaining for teachers to be informed of the
identity of their evaluators. As was the case in M.S.A.D. No. 43, the
proposal "is sufficiently related to working conditions to be a man-
datory subject of bargaining." Just as was the case therein that
teachers should "receive early notice of the criteria by.which he or
she will be evaluated," in this case it is an appropriate subject of
bargaining that teachers might know the identity of the individual or
individuals who will be evaluating them. This is not to say that
those individuals must be identified by name or that circumstances
might change during the school year to require a change in the eval-
uation; however, the teachers should know the identity of the eval-
uator at least by position, should there be a demand on the part of
the Association or the Committee to negotiate such a proposal.
Conversely, the Association is barred, as a matter of educational
policy, from bargaining the identity of the evaluators with the
Committee. While the functions of an evaluator involve such important
employment decisions as those concerning promotion, transfer, assign-
ment, discipline, dismissal and non-renewal, on balance, the respon-
sibility of the Committee for the effective implementation of the
educational program and its quality shifts the matter of designating
the evaluators into the educational policy arena. Both the naming of
evaluators and determining what qualifications they must have must be
reserved to the Committee as a matter of educational policy.
The selection and designation of the Committee's evaluators is
inextricably intertwined with the substance and quality of the eval-
uative product. The evaluative function is of such "qualitative
importance," per the words of Biddeford, that we find that the iden-
-25-
tification of the evaluators must be reserved to the Committee as a
matter of educational policy. The performance evaluation is the most
fundamental supervisory assessment tool by which the Committee may
tailor teaching to meet its established standards and respond to the
needs of the public relative to the quality of its educational prod-
uct. We therefore conclude that the Committee's interest in the
suitability of the educational product rendered by each of its
teachers predominates over the interest of the employees in deter-
mining the identity and qualifications of the evaluators selected by
the public employer. Since the evaluator selection and designation
(not to be confused with conveying of the identity of the evaluators
once so named) and their qualifications are so closely and fundamen-
taly related to considerations of educational policy, subjecting these
matters to mandatory negotiation would hamper both the evaluative pro-
cess and the latitude reserved to the Committee under the educational
policy exclusion of the Muncipal Employees Labor Relations Act.
CONCLUSION
The parties participated in some unspecified mediation procedures
on June 19, June 27 and August 13, 1985. However, because the record
is indefinite concerning the nature of the parties' dealings after
May 15, 1985, we conclude that the next concrete step in the nego-
tiations with regard to which the parties' positions may be accurately
characterized is the Committee's demand to delete nonmandatory sub-
jects made on August 15, 1985. It is clear that refusing to remove,
after demand, non-negotiable items from the bargaining table consti-
tutes a violation of the duty to bargain in good faith required by
26 M.R.S.A. 965(1)(C) (Supp. 1985), in violation of 26 M.R.S.A.
964(2)(B) (1974). Caribou School Department v. Caribou Teachers
Association, No. 76-15 (Me.L.R.B. Jan. 19, 1977). It is also clear
that such a demand to remove permissive subjects may be made at any
time prior to fact-finding. See M.S.A.D. No. 22 Non-Teachers
Association v. M.S.A.D. No. 22 Board of Directors, No. 79-32, slip op.
at 8 n.6 (Me.L.R.B. Jul. 30, 1979).
The Committee has refused to submit to fact-finding a number of
issues which we have concluded to be mandatory subjects of bargaining.
-26-
Additionally, the Association has refused to remove from collective
bargaining negotiations at the point of fact-finding a number of
issues which clearly fall within the definition of educational poli-
cies. We shall therefore order the Committee to, upon request, com-
mence bargaining over those proposals determined negotiable herein and
order the Association to cease and desist from insisting on the nego-
tiation of non-mandatory subjects. Because it is reasonable to
conclude that the parties were essentially in pari delecto with regard
to the impasse in negotiations herein neither posting or any other
remedial measure shall be ordered.
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:
1. That the Lewiston School Committee, its representatives and
agents:
a) Cease and desist from refusing to bargain collectively
with the Lewiston Teachers Association in violation of
26 M.R.S.A. 964(1)(E) (1974).
b) Upon request, bargain in good faith with the Lewiston
Teachers Association over the Association's collective
bargaining proposals discussed herein which concern:
1. compensation for work in excess of seven hours
per work day.
2. compensation for preparation periods in excess
of three per day.
3. compensation for the instructional time of
department heads or athletic directors which
exceeds 4/5 of the instructional time of
regular teachers.
4. compensation for mandatory attendance at evening
open houses.
5. stipends for itinerant kindergarten teachers.
6. payments for the acquisition of teaching materials
by involuntarily transferred teachers.
-27-
7. compensation for greater than specified general
instructional time.
c) Upon request bargain with the Lewiston Teachers
Association over conveying the identity of evaluators by
name or position to the Association and/or individual
teachers.
2. That the Lewiston Teachers Association cease and desist from
demanding to negotiate, in violation of 26 M.R.S.A. 964(2)(B)
(1974), over its non-mandatory collective bargaining proposals
concerning the selection or qualifications of performance eval-
uators, reappointment of involuntarily transferred employees,
the appointment of ultimate supervisors and the retention of
previous contract language herein concerning academic freedom,
employees' religious and political activities and personal
privacy.
3. That all other allegations of Prohibited Practices by the
parties, alleged in the Association's complaint and the
Committee's Response herein, which are not specifically
addressed in paragraphs one and two above be and hereby
are DISMISSED.
Dated at Augusta, Maine, this 30th day of June, 1986.
MAINE LABOR RELATIONS BOARD
The parties are advised
of their right pursuant
to 26 M.R.S.A. 968(5)(F)
(Supp. 1985) to seek review /s/_______________________________
of this decision and order William M. Houston
by the Superior Court by Alternate Chairman
filing a complaint in
accordance with Rule 80B
of the Rules of Civil
Procedure within 15 days /s/_______________________________
of the date of this Thacher E. Turner
decision. Employer Representative
/s/_______________________________
George W. Lambertson
Employee Representative
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