STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-12
Issued: October 8, 1986
_______________________________
)
M.S.A.D. NO. 54 EDUCATION )
ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
M.S.A.D. NO. 54, )
)
Respondent. )
_______________________________)
On February 6, 1986, M.S.A.D. No. 54 Education Association (the
Association) duly filed with the Maine Labor Relations Board (Board) a
prohibited practice complaint alleging that M.S.A.D. No. 54 (the Dis-
trict) has committed prohibited practices within the meaning of 26
M.R.S.A. 964(1)(E) (1974) by refusing to bargain with the Association,
in accordance with 26 M.R.S.A. 965 (1974 & Pamph. 1985), over a
legislatively mandated District smoking policy. More specifically,
the complaint alleges that on January 1, 1986, the District imposed a
smoking policy which banned teacher smoking in all District school
buildings, without bargaining with the Association as requested in
writing on December 20, 1985. The complaint alleges that the Associa-
tion renewed its demand to bargain the substance of the smoking policy
in a meeting with the District on January 7, 1986, and that the
District agreed only to meet and consult regarding implementation of
the policy.
On February 28, 1986, the District filed a response and
counterclaim with the Board which admits that prior to January 1,
1986, the District's "informal smoking policies and/or understandings
permitted teachers to smoke in specific rooms in each school building
and prohibited smoking elsewhere in the schools." The District admits
that on December 10, 1985, the Association wrote the District and
requested bargaining regarding the proposed smoking policy. The
District's response avers that by letter dated December 27, 1985, the
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District informed the Association of its opinion that the adoption of
a smoking policy was not a mandatory subject of bargaining and also
avers that the District offered to "meet and consult" with the
Association regarding the impact and implementation of a District
smoking policy. In its response the District further admits that on
January 7, 1986, the Association again expressed a desire to bargain
over the substance of the smoking policy. The District's response
also states that on January 7, 1986, the District refused to negotiate
over the substance of the policy and offered instead to "meet and
consult" with the Association over the implementation and impact of
the policy.
By way of counterclaim the District states that inasmuch as 22
M.R.S.A. 1580-A (Pamph. 1985) provides that the creation and imple-
mentation of the mandated smoking policy may be accomplished without
negotiation, the Association's actions in insisting upon negotiating
the substance of the policy constitute a prohibited practice within
the meaning of 26 M.R.S.A. 964(2)(B) (1974).
On March 12, 1986, Alternate Chairman Donald W. Webber conducted
a prehearing conference in this matter. The Prehearing Conference
Memorandum and Order issued by Alternate Chairman Webber on March 14,
1986, is incorporated in and made a part of this decision and order.
As a result of the parties' prehearing endeavors the issue of whether
or not the District's promulgation of a smoking policy was a mandatory
subject of bargaining was submitted to the Board on a stipulated fac-
tual record. The last of the parties' briefs was filed June 5, 1986.
On July 22, 1986, the Board, consisting of Chairman Edward S. Godfrey,
presiding, Thacher E. Turner, Employer Representative, and George W.
Lambertson, Employee Representative, deliberated the issues framed by
the complaint and response and narrowed by the Prehearing Conference
Memorandum and Order. On July 23, 1986, the Board requested the sub-
mission of additional factual material, which the parties submitted on
August 25, 1986.
JURISDICTION
The Board has jurisdiction over this controversy pursuant to 26
M.R.S.A. 968(5) (1974 & Pamph. 1985). The complaint and counter-
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claim allege violations of the obligation to bargain in good faith
prescribed in 26 M.R.S.A. 965(1)(C) (Pamph. 1985), which violations
are specifically proscribed by 26 M.R.S.A. 964(1)(E) and (2)(B)
(1974).
FINDINGS OF FACT
The parties are in agreement as to many of the material facts and
have admitted others in their submissions. On the basis of these
facts, the parties' stipulations and the uncontested documentary evi-
dence we made the following findings of fact.
The Association is the duly certified collective bargaining agent,
within the meaning of 26 M.R.S.A. 962(2) (1974), for a unit of cer-
tificated professional employees of the District. The District is the
public employer of the employees in that bargaining unit within the
meaning of 26 M.R.S.A. 962(7) (Pamph. 1985). The District and the
Association were parties to a collective bargaining agreement in
effect from September 1, 1984, until August 31, 1986.
In the spring of 1985, the 112th Maine Legislature passed the
Workplace Smoking Act of 1985, 22 M.R.S.A. 1580-A (Pamph. 1985).
That Act, enacted September 19, 1985, and effective January 1, 1986,
provides in pertinent part that a Maine employer, including the
District:
[S]hall establish, or may negotiate through the collec-
tive bargaining process, a written policy concerning smoking
and nonsmoking by employees in that portion of any business
facility for which he is responsible. In order to protect
the employer-and employees from the detrimental effects of
smoking by others, the policy shall prohibit smoking except
in designated smoking areas. The policy may prohibit
smoking throughout the business facility. The employer
shall post and supervise the implementation of the policy.
The employer shall provide a copy of this policy to any
employee upon request. Nothing in this section may affect
the right of any employer to establish policies concerning
smoking and nonsmoking by members of the public who have
access to the business facility. Nothing in this section
may be construed to subject an employer to any additional
liability, other than liability which may exist by law, for
harm to an employee from smoking by others in any business
facility covered by this section.
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On December 5, 1986, without prior negotiations with the
Association, the District's Board effected the first reading of a new
smoking policy which would ban all smoking in any school building
after January 1, 1986. On December 10, 1985, the Association wrote
the Superintendent of the District, stating its view that the smoking
policy concerned negotiable working conditions and expressed its
desire to negotiate regarding the matter. On December 19, 1985,
without prior negotiation with the Association, the Board effected the
second reading of and adopted a policy imposing a complete ban on
smoking in any school building, effective January 1, 1986. On
December 20, 1985, the Association served the District with a formal
"10-day notice" which demanded bargaining over the new smoking policy.
By letter of December 27, 1985, the District, through its Superinten-
dent, asserted that the adoption of a smoking policy was not a man-
datory subject of bargaining. That letter expressed the District's
willingness to meet and consult with the Association with respect to
the impact and implementation of the policy.
On January 7, 1986, representatives of the Association and the
Board met to discuss the smoking policy. At the January 7th meeting
the Association reiterated its desire to bargain over the substance of
the smoking policy; whereupon, the District's representatives declined
to bargain the substance and offered instead only to meet and consult
over the implementation and impact of the policy. Prior to January 1,
1986, there were informal smoking policies which existed in the
District's schools, which permitted teachers to smoke in specified
areas in some school buildings and prohibited smoking in areas in some
school buildings. These policies permitted smoking both in some areas
to which student access was restricted and in some areas to which stu-
dent access was not restricted.
POSITIONS OF THE PARTIES
The Association contends that by imposing a total smoking ban
without bargaining with the Association, as requested, the District
has effected a unilateral charge in a mandatory subject of bargaining
established by the parties' past practice. The Association contends
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that the Board should not abandon its established precedents con-
cerning the issue of teacher smoking and that the Workplace Smoking
Act of 1985 should not be construed as an implied repeal of the
Municipal Public Employees Relations Act's requirement of mandatory
negotiation over teacher smoking in areas of restricted student access
and view. Finally, the Association contends that the parties'
agreement contains no clear and unmistakable waiver of the statutory
right to bargain this change in District policy regarding, teacher
smoking.
The District contends that the establishment of a smoking policy
as mandated by the Workplace Smoking Act of 1985, along with the
substance of any such policy, are not mandatory subjects of
bargaining. The District contends that the portion of the Smoking Act
which provides that "[elach employer shall establish, or may negqtiate
through the collective bargaining process, a written policy concerning
smoking and non-smoking by employees" (emphasis added) expressly
establishes that negotiation of a smoking policy is not mandatory but,
rather, is a permissive subject of bargaining. The District further
contends that in the interim since the Board's earlier rulings on the
subject, "medical and educational knowledge and research have advanced
to the point that a rule which bars teacher smoking on school premises
should be held to be a matter of educational policy."fn1 Finally, the
District contends that the smoking policy is a matter of contractual
management right and privilege with respect to which the Association
has contractually waived all bargaining rights.
DISCUSSION
The District charges that the Association's demand to bargain
over a District smoking policy constitutes insistence upon the nego-
tiation of nonmandatory subjects and is therefore an unlawful refusal
to bargain. We find that the Association's demand to bargain the
substance of the District's entire smoking policy does request nego-
tiations over both permissive and mandatory subjects of bargaining.
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1 The District has cited materials by numerous authorities to
establish various propositions in subject areas which the District has
entitled "The Current State of Medical/Educational Knowledge
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To the extent that the demand requests negotiations over a mandatory
subject, it does not constitute a prohibited practice. On the other
hand, under the Municipal Employees Labor Relations Act the District
was not required to negotiate with the Association either over teacher
smoking in areas where there were no restrictions of student access or
view, or over smoking by students, non-teaching District employees or
members of the public. It would constitute a per se violation of
the duty to bargain for the Association to insist, to the point of
impasse, upon bargaining over such nonmandatory subjects. See MSEA v.
State of Maine, No. 84-17 (Me.L.R.B. July 17, 1986). In the instant
case, however, the District has not established the existence of an
impasse in negotiation over the subject of teacher smoking in areas of
restricted student access and view. See generally S.A.D. No. 22 Non-
Teachers Association v. S.A.D. No. 22 Board of Directors, No. 79-32
(Me.L.R.B. July 30, 1979). The District's counterclaim must therefore
be dismissed. We turn now to the Association's charge of prohibited
practice by the District.
If the District had a duty in mid-term to negotiate its intended
changes in teacher smoking policies concerning area of restricted
student access and view, the District committed the prohibited prac-
tice of unlawful refusal to bargain when it imposed a total ban on
teacher smoking without bargaining upon request, with the Association.
See MSEA v. State, No. 85-19 (Me.L.R.B. Dec. 2, 1985). We find, for
the reasons set forth below: (1) that we should not alter our long-
established precedent in this area, (2) that the provisions of the
Workplace Smoking Act of 1985 do not remove the subject of teacher
smoking in areas of restricted student access and view, from the scope
of mandatory collective bargaining, and (3) that the provisions of the
Duration of Agreement and Rights of the Board articles of the parties'
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Concerning Smoking and Students," "Severity," "Teacher Influence on
Student Smoking," "Importance of Overall School Climate," and "Social
Consequences." The District did not supply the Board with copies of
these materials nor may the Board accept the propositions purported to
be substantiated by such materials as facts in the case. See
generally Teamsters Local Union No. 48 v. University of Maine, No.
79-37 (Me.L.R.B. Oct. 17, 1979); Rumford School Department v. Rumford
Teachers Association, No. 79-15 (Me.L.R.B. July 30, 1979).
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contract do not permit the District to make unilateral changes in
policy regarding teacher smoking in areas of res -tricted student access
and view. In light of these conclusions we find that by refusing to
bargain upon demand over unilateral changes in teacher smoking policy
applicable to areas of restricted student access and view, the
District has violated 26 M.R.S.A. 964(1)(E) (1974).
Outside of the educational context the National Labor Relations
Board, see Chemtronics, Inc., and Local 42, Industrial Production
Employees Union, 236 NLRB 178 (1978); Alberts, Inc., and Retail and
Department Store Employees, 213 NLRB 686 (1974), and the majority of
state labor jurisdictions which have considered the issue have deter-
mined limitations on employee smoking to be mandatorily negotiable.
See Commonwealth of Pennsylvania v. Pennsylvania Labor Relations
Board, 459 A.2d 452 (Pa. Commw. Ct. 1983)(whether employees may smoke
at workplaces is at the center of subjects properly described as
"conditions of employment" and is entirely unrelated to those
entrepreneurial or managerial judgments fundamental to the basic
direction of the enterprise and statutorily noninandatory); Dover
Professional Firefighters Association, Local 1312 v. Fire Chief, City
of Dover, No. 85-46 (N.H. P.E.R.B., June 26, 1985)(where smoking not
demonstrated to be directly job-related it is not within the preroga-
tive of management to impose a ban thereon); Steuben-Allegany Boces
and Steuben-Allegany Boces Unit, Steuben County Chapter of the Civil
Service Employees Association, Inc., 13 PERB 4511 (N.Y. P.E.R.B.
Dec. 2, 1980)(policy imposing restrictions on smoking held mandatorily
negotiable term or condition of employment); Brown County and Brown
County Social Services Professional Employees Association, No. CLXIV
30343 DR(M)-243 (Wis.E.R.C., May 4, 1983)(establishment of no-smoking
policy, although mandatorily negotiable, was permitted by parties'
contract).
On the other hand, the decisions of other state jurisdictions
which have considered the issue in the educational context are split.
Compare Portland Board of Education and Education Association of
Portland, No. TPP-5675 (Conn. S.B.L.R. Mar. 9, 1981)(ban on teacher
smoking only within school buildings and not in areas where students
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are allowed to smoke is a managerial educational policy within the
prerogative of educational employer); Chambersburg Area School
District v. Pennsylvania Labor Relations Board, No. PERA-C-9101-C
(Pa.L.R.B. Mar. 27, 1979), rev'd, No. A.D. 1979-83 (Pa. Ct. C. P.,
Franklin Cty. Apr. 7, 1980), aff'd, 430 A.2d 740 (Pa. Commw. Ct.
1981), aff'd, 446 A.2d 603 (Pa. 1982)(affirming County Court reversal
of Labor Board's determination that smoking ban was mandatory subject
of bargaining, court opined that peculiar characteristics of public
education, including role modeling of teachers, renders private sector
authorities holding smoking mandatorily negotiable inapplicable to
public employer's imposition of smoking ban) and Middleton Joint
School District No. 3, No. 14680-A (Wis.E.R.C. 1976)(unilateral impo-
sition of absolute ban on smoking at school premises permissible as an
exercise of Municipal Employer's right to manage its facilities) with
Warren Hiills Regional Education Association and Board of Education of
the Warren Hills Regional Hiqh School District, No. 82-8 (N.J.
P.E.R.C. July 22, 1981)(question of whether teachers should be per-
mitted to smoke within the confines of physical facilities exclusively
reserved for teachers during non-student contact time was mandatorily
negotiable) and Mount Abraham Education Association v. Mount Abraham
Union Hiqh School Board of School Directors, No. 80-93 Vt.L.R.B.
June 25, 1981)(although determined to affect "working conditions,"
implementation of a no-smoking policy found nonmandatory where appli-
cable statutory language requires bargaining only over "economic" con-
ditions of employment and no substantive economic impact on smoking
teachers was shown).
This Board has previously determined that within the scope of the
Municipal Employees Labor Relations Act the unilateral imposition of a
ban on teacher smoking in areas normally restricted to student access
and view constitutes a per se change in working conditions. Caribou
Teachers Association v. Caribou School Committee, No. 79-44 (Me.L.R.B.
Feb. 7, 1979), reaffirming, Oxford Hills Teachers Association v. the
Board of Directors of M.S.A.D. No. 17, No. 73-06 (Me.L.R.B. Apr. 20,
1973). In the Caribou case, quoting initially from page thirteen of
the Oxford Hills case the Board stated, at pages three and four:
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"[Ilt is our finding and decision that when smoking occurs on
school grounds or in school buildings in those areas which
are ordinarily restricted to student access, and that are
ordinarily outside those areas normally visited by or
visible to students in the school building or on the school
premises, it is no longer a matter of educational policy and
[thus] justifiably constitutes a working condition for those
teachers employed at that location. The results of this
finding are that when the teachers seek to negotiate on the
question of the imposition of a smoking ban in those areas
specifically reserved to teachers, and not ordinarily
accessible to or visited by the students, it then consti-
tutes a working condition and, as such, it is a matter which
is fully negotiable in the collective bargaining process.
As such, the teachers have every right through their bargaining
agent to request to negotiate on the question of smoking areas
for teachers. . . ."
. . . .
Questions about whether school personnel may smoke on
school property in areas to which student access is
restricted involve working conditions, Oxford Hills Teachers
Ass'n, supra. Thus under Justice Wernick's [educational
policies/working conditions] analysis in City of Biddeford
[v. Biddeford Teachers Association, 304 A.2d 387 (Me. 1973),
issued subsequent to Oxford Hills], such questions are prima
facie eligibile for collective bargaining. Such prima facie
eligibility is not overridden, in our opinion, by any signifi-
cantly substantial managerial or policy-making functions.
While school committees do of course have an interest in
assuring that their employees stay healthy, an adult's deci-
sion about whether to smoke essentially remains the personal
choice of the individual. The fact that an employee smokes
does not in the usual case seriously disrupt school opera-
tions or result in any other significant problems which
would warrant a unilateral ban on smoking in all areas of
school property by a school committee. The question of
whether school personnel may smoke in areas restricted to
student access does not tend to encroach upon the organiza-
tion, supervision, direction or distribution of working per-
sonnel.
We do of course recognize that school committees have
significantly substantial policy interests in assuring that
students while at school are not exposed to persons who are
smoking. This interest falls within a school committee's
mission of preparing its students for a productive, healthy
adult life. Thus, we held in Oxford Hills Teachers Ass'n,
supra, that questions about smoking by school personnel in
areas of unrestricted student access involves educational
policy about which school committees are obligated to meet
and consult but not negotiate under 26 M.R.S.A. 965(1)(C)
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[(Pamph. 1985)]. We take this opportunity to reaffirm spe-
cifically our holding in Oxford Hills that school committees
are not required to negotiate before instituting a smoking
ban on school property in classrooms, hallways and in other
areas to which student access is unrestricted.
Upon thorough review of our long-established precedent on this
issue in light of the authorities cited above, we conclude that our
previous determinations regarding the negotiability of teacher smoking
are still sound. We turn next to whether the Workplace Smoking Act of
1985 or the parties' collective bargaining agreement alters the statu-
tory bargaining obligation regarding changes in teacher smoking policy
in areas of restricted student access and view.
We must determine whether, by enacting the Workplace Smoking Act
of 1985, the Legislature has modified the District's statutory duty to
bargain, upon request, any proposed changes in otherwise mandatorily
negotiable teacher smoking policies. It is rudimentary that the sta-
tutory duty to bargain may be altered by the Legislature at any time.
However, in view of the remedial purpose of the Municipal Employees
Labor Relations Act, we think that such alterations ought not lightly
be inferred and that we should strictly construe the validity of claims
of legislative exemption of previously mandatory subjects. Upon con-
sideration in light of this standard we conclude that the Workplace
Smoking Act of 1985 does not exempt otherwise mandatory smoking poli-
cies from the scope of statutorily required mandatory negotiations.
On the contrary, we think the Smoking Act clearly provides that
where, as in the instant case, an employer's ability to unilaterally
implement a smoking policy or unilaterally effect changes in an
existing smoking policy is hampered by a preexisting obligation to
bargain, the policy required to be established by the Act must,
unless negotiation is otherwise excused, be arrived at through the
collective bargaining process. The Smoking Act literally provides
that the employer "[slhall establish or may negotiate through the
collective bargaining process" the required policy. We do not
construe this portion of the Act to transform otherwise mandatorily
negotiable smoking policies into permissive subjects which the
employer may negotiate at its discretion. We find the more reasonable
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construction to be that the Act explicitly anticipates that public and
private employers may be obliged to bargain changes in their employees'
wages, hours or terms and conditions of employment, and provides spe-
cific accommodation thereof.
Finally, we must determine whether the provisions of the parties'
collective bargaining agreement constitute a waiver of the statutory
duty to bargain changes in District policies concerning teacher
smoking in areas of restricted student access or view. It is well
established that the statutory duty to bargain mandatory subjects may
be waived by contractual agreement. See 26 M.R.S.A. 962(1)(B)
(1974). See also State v. M.S.E.A., 499 A.2d. 1228 (Me. 1985) and
M.S.E.A. v. State, No. 86-09 (Me.L.R.B. Apr. 23, 1986), construing
identical provisions of the State Employees Labor Relations Act. The
District alleges such a waiver to be constituted by two provisions of
the parties' agreement. Those provisions, the Rights of the Board and
Duration of Aqreement articles, numbered IX and XXIV respectively,
state, "The Association recognizes that except as specifically
amended by the terms of this Agreement the Board retains all func-
tions, powers and duties or authority vested in it by the applicable
laws of the State of Maine or other governmental agency" and that
"During the effective dates of this Agreement, anything not covered in
said agreement shall be reserved as a management right and privilege."
Neither these nor any other provisions of the parties' agreement
address generally the duty to bargain or specifically the duty to
bargain mid-term over mandatorily negotiable teacher smoking. Each of
the foregoing articles cited by the District addresses management
rights, and neither is sufficient to be classified as a zipper clause
indicating the extent to which the parties have given up their right
to bargain mid-term over mandatory subjects. We have consistently
required alleged waiver of statutory collective bargaining rights to
be strictly proved. Our construction of zipper and management rights
clauses is aimed at giving purpose and meaning to the language which
the parties have negotiated into a labor agreement. In pursuit of
that goal we have required that the language in such clauses be
"clear and unmistakable' to be given effect as a waiver.
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All contract provisions must be given due weight as the written
memorialization of the understandings of the parties arrived at
through the give and take of negotiations. The parties and their
representatives are responsible for being fully aware of the ramifica-
tions of language incorporated in their agreements; therefore, when
the parties incorporate "boilerplate" language in their contracts they
are accountable for understanding the application of such language,
including the generally accepted meaning accorded labor relations
terms of art, to their own circumstances. However, the right to
bargain proposed changes in working conditions is a statutory and not
a contractual right, the contractual waiver of which must be
established by evidence of clear relinquishment, whether by express
contract term or necessary implication.
The above-mentioned contract provisions fail to satisfy this stan-
dard. They do not unambigiously confer upon the District the power to
unilaterally alter or extinguish the right of its teachers to bargain
over a ban on smoking in areas of restricted student access and view
where teachers have had a customary right to smoke.
ORDER
On the basis of the foregoing findings 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 District rescind those portions of the
January 1, 1986 smoking ban which apply to teacher
smoking in areas of restricted student access and
view and reinstitute the policies in this regard
which existed prior to January 1, 1986.
2. That the District negotiate upon request with the
Association concerning the substance of any portion
of a smoking policy proposed to be established by the
District which may be applicable to teacher smoking in
areas of restricted student access and view.
3. That the District rescind, disregard and destroy all
record of any disciplinary action meted out as a result
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of any teacher's failure to comply with the District's
January 1, 1986, unilateral smoking policy in areas of
restricted student access and view.
4. That the District's counterclaim must be and hereby is
DISMISSED.
Dated at Augusta, Maine, this 8th day of October, 1986.
MAINE LABOR RELATIONS BOARD
/s/________________________________
The parties are hereby Edward S. Godfrey
advised of their right Chairman
pursuant to 26 M.R.S.A.
968(5)(F) (Pamph. 1985)
to seek review of this
decision and order by the /s/________________________________
Superior Court by filing Thacher E. Turner
a complaint in accordance Employer Representative
with Rule 80B of the Rules
of Civil Procedure within
15 days of the date of the
decision. /s/________________________________
George W. Lambertson
Employee Representative
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