STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-16 Issued: May 11, 1993 _________________________________ ) SANFORD FEDERATION OF TEACHERS, ) LOCAL 3711, AMERICAN FEDERATION ) OF TEACHERS, AFL-CIO, ) ) Complainant, ) ) DECISION AND ORDER v. ) ) SANFORD SCHOOL COMMITTEE, ) ) Respondent. ) _________________________________) On December 15, 1992, the Sanford Federation of Teachers, Local 3711, American Federation of Teachers, AFL-CIO (Federation) filed a prohibited practice complaint1 with the Maine Labor Relations Board (Board), alleging that the Sanford School Committee (Committee) has violated 26 M.R.S.A. 964(1)(E) (1988). More specifically, the complaint alleges that the Committee informed the Federation during pre-expiration successor contract negotiations that it would unilaterally change language in the then existing contract entitled "ARTICLE 24 - PERSONAL AND ACADEMIC FREEDOM."2 ___________________________________ 1The complaint was amended in response to a December 16, 1992, notice of insufficiencies, on December 23, 1992. 2The provisions of Article 24 are as follows: A. No religious or political activities, or lack thereof, or the personal life of teachers shall be grounds for discipline or discrimination with respect to the professional employment of any such teachers. B. The Committee and the Federation agree that academic freedom is essential to the fulfillment of the purposes of the school system, and they acknowledge the fundamental need to protect teachers from any censorship and restraint which might interfere with their obligations to pursue truth in the performance of their teaching functions. -1- The complaint alleges that "the Committee submitted a proposal to the Federation on April 13, 1992, [indicating] that it would delete, inter alia, Article 24 from the contract." The complaint states that the Committee refused to bargain on the subject and stated throughout the negotiations and mediation that this issue was not bargainable. The complaint asserts that at the end of the negotiations and mediation process the parties had resolved all other issues between them and that the contract ratified by the Committee on July 20, 1992, contained language in Article 24 identical to the previous contract but for the deletion of the phrase "or the personal life." The Complaint avers that the Federation agreed to present the contract to its membership for ratification, but specifically reserved the right to resolve the issue through Board prohibited practice procedures. Finally, the complaint states: The absolute refusal of the School Committee to discuss or negotiate any changes or amendments to the existing language in the contract in order to deal with any perceived problems that the School Committee saw in the language, was a failure to bargain. Although the Federation could not simply insist upon the flat retention of the language which is involved with educational policy to some degree; the School District likewise cannot simply impose its own language upon the Federation in regard to matters which to some degree involve working conditions. . . . [T]he refusal of the School Committee to negotiate changes in Article 24, A is a violation of 9-A Title 26 M.R.S. Sec. 964, 1, E. In its Response the Committee denies that it informed the Federation during negotiations that it would unilaterally change portions of Article 24 in the existing contract, denies that it refused upon request to negotiate over such changes and denies that the Federation reserved the right to resolve the issue of the Committee's refusal to bargain through Board prohibited practice procedures. The Committee states by way of affirmative defense that it proposed that all of Article 24 be deleted on April 13, 1992, and that in mediation it authorized the mediator -2- to modify its proposal to request deletion only of the phrase "or the personal life" from the existing language of Article 24. The Committee states that the mediator related to the Federation that the last package proposal, containing the language of Article 24 contained in the present agreement, "was agreeable to the Federation and [that] there was a tentative agreement on all terms." The Committee avers that the negotiated contract, containing Personal and Academic Freedom language from which the phrase "or the personal life" had been deleted, was ratified by the Federation. The Committee alleges that "[a]t no time was . . . a request or agreement to pursue the Federation's right to file a Prohibited Practice Charge concerning Article 24 raised by the [Federation]." On February 23, 1993, Chair Peter T. Dawson conducted a prehearing conference in this matter, at which the parties agreed to submit a stipulated factual record for use in resolving the "sole issue raised by the complaint . . . whether the language contained in Article 24 of the prior contract, but deleted from Article 24 of the current contract, to wit . . . 'the personal life of teachers shall be grounds for discipline' . . . is a subject of educational policy and therefore not the subject of mandatory bargaining?" The stipulation was received on March 8, 1993. On March 8, 1993, the parties submitted their stipulation that the following constitutes the entire record herein: 1. Article 24 concerning personal and academic freedom which was set forth on Page 17 of the Collective Bargaining Agreement between the Sanford Federation of Teachers and the Sanford School Committee which was effective from September 1, 1988 through August 31, 1991 which is attached hereto as Exhibit A. [Exhibit A states in pertinent part:] -3- ARTICLE 24 - PERSONAL AND ACADEMIC FREEDOM A. No religious or political activities, or lack thereof, or the personal life of teachers shall be grounds for discipline or discrimination with respect to the professional employment of any such teacher. B. The Committee and the Federation agree that academic freedom is essential to the fulfillment of the purpose of the school system, and they acknowledge the fundamental need to protect teachers from any censorship or restraint which might interfere with their obligation to pursue truth in the performance of their teaching functions. 2. Article 24 concerning personal and academic freedom as set forth in the current contract between the parties which is effective from September 1, 1992 through August 31, 1993, as set forth on Page 15 of the contract which is attached hereto as Exhibit B. [Exhibit B states in pertinent part:] ARTICLE 24 - PERSONAL AND ACADEMIC FREEDOM A. No religious or political activities, or lack thereof, of teachers shall be grounds for discipline or discrimination with respect to the professional employment of any such teacher. B. The Committee and the Federation agree that academic freedom is essential to the fulfillment of the purposes of the school system, and they acknowledge the fundamental need to protect teachers from any censorship or restraint which might interfere with their obligation to pursue truth in the performance of their teaching functions. The parties agreed upon a briefing schedule, in accordance with which the last submission was received by the Board on March 24, 1993. Pursuant to telephone conference with a staff-designee of the prehearing officer, the parties agreed to submit a further stipulation resolving the issues: 1) whether there was a -4- reservation of the right to bargain over the issues of personal and academic freedom apparently waived by contractual agreement; 2) whether the Committee refused to bargain over its insistence upon deletion of the phrase "or the personal life," on the grounds that such constitutes a non-mandatory matter of educational policy. On April 23, 1993, the parties submitted their stipulation. The stipulation states in pertinent part, the following: 1. That the issue which the parties wish to have the board rule on in the matter now pending is the issue of whether there is an obligation to bargain the language which was changed in the agreement; or whether that change was exempt from bargaining as a matter of educational policy. 2. The parties hereby agree that no adverse action has been taken against any employee as a result of the change in the language. 3. The parties further agree that neither party is raising issue of waiver. 4. That the parties hereby agree and bind themselves that in the event that the board determines that the change in language was an item which was mandatorily negotiable then the parties will place the old language back into the contract and reprint that page. 5. The parties further agree that if the board rules that the language which was changed, or the change in the language, is entirely a matter of educational policy and therefore exempt from negotiation then the language may continue as it now stands and the contract shall be binding as now currently written. 6. The parties further agree that any and all outstanding issues raised in the initial complaint and the answer thereto shall be resolved by the Board's ruling on the issue agreed to by the parties in paragraph 1 above. No other issues need be addressed by the Board. On May 11, 1993, the Board, consisting of Chair Peter T. Dawson, Employee Representative George W. Lambertson and Employer Representative Howard Reiche, Jr., deliberated the issues in the -5- case on the basis of the stipulated record and the parties' written argument. The Committee is represented in this matter by Ms. Annalee Z. Rosenblatt. The Federation is represented by Emmanuel Krasner, Esq. Neither party has requested the award of attorney's fees or costs. JURISDICTION The Board has jurisdiction over this matter pursuant to 26 M.R.S.A. 968(5) (1988 & Supp. 1992). The complaint alleges a violation of the obligation to bargain in good faith prescribed in 26 M.R.S.A. 965(1)(C) (1988), which violations are specifically proscribed by 26 M.R.S.A. 964(1)(E) (1988). DISCUSSION This case does not involve questions respecting the proper exercise of a school board's authority to determine questions of teacher fitness or profitability,3 or the standards applicable to the making of such determinations.4 It also does not involve a ___________________________________ 3The Maine Revised Statutes Annotated provide that a "school board, after investigation, due notice of hearing and hearing thereon shall dismiss any teacher, although having the requisite certificate, who proves unfit to teach or whose services the board deems unprofitable to the school." 20-A M.R.S.A. 13202 (1993). 4In Wright v. Superintending School Committee, City of Portland, 331 A.2d 640 (Me. 1975), the Law Court at page 646 noted with approval use of the following standard for determining unfitness to teach: In determining whether the teacher's conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or -6- determination of whether the parties' just cause contractual provision5 covers conduct attempted to be excluded from consideration by the contractual personal privacy language at the center of this dispute, or whether any action of the school committee has been consistent therewith.6 This case involves the single issue of whether the potentiality of Committee discipline or discrimination based on conduct transpiring in the private lives of teachers involves matters either solely of educational policy or of mandatorily negotiable terms and conditions of employment. We hold, based on the factual stipulation in this case and the format of the issue submitted by the parties to the Board, that the language at issue pertains exclusively to neither. Instead we find that the language of the particular provision before us includes elements of both educational policy ___________________________________ blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. These factors are relevant to the extent that they assist the board in determining a teacher's fitness to teach, i.e., in determining whether the teacher's future classroom performance and overall impact on his students are likely to meet the board's standards. 5The statutes provide that "[j]ust cause for dismissal or nonrenewal shall be a negotiable item in accordance with the procedures set forth in Title 26, Chapter 9-A, for teachers who have served beyond the probationary period." 20-A M.R.S.A. 13201 (1993). The parties' present contract provides that "[n]o teacher shall be reduced in rank or compensation, disciplined, deprived of any professional advantage nor shall any teacher on continuing contract be dismissed without good and just cause." 6"Whether particular employee conduct constitutes just cause so as to warrant the imposition of discipline is a matter to be determined by interpretation of the bargaining agreements' 'just cause' provision through the contractual grievance procedure." Paul Coulombe v. City of South Portland, No. 86-11, slip op. at 21, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). -7- and of mandatorily negotiable subjects. We are therefore unable to render a decision having the effect of dispensing either of the alternative and mutually exclusive remedies to which the parties have stipulated. However, in light of the state of the parties' present negotiations and their apparent confusion on this issue, we are compelled to note for their instruction that absent extraordinary circumstances a public educational employer may not refuse to bargain over the issue of whether it shall continue to refrain from disciplining or otherwise discriminating against teachers on the basis of aspects of their personal lives which do not affect the fitness or performance of either the teacher involved or other teachers, the well-being or performance of students, or the provision of educational services by the committee. The competing views which underlie this controversy are illustrated by the following excerpts, the first taken from a handbook of the American Civil Liberties Union addressing the subject of the constitutional rights of teachers: Teachers historically have been held to a standard of personal conduct that might have suffocated Caesar's wife. For example, until World War I, "[d]ancing, card-playing, smoking, drinking, theatre-going, and Sabbath-breaking were still regarded by multitudes as sinful. . . . The teacher was expected in all these matters to be exemplary." In 1883 Josiah Royce wrote that a teacher "may find of a sudden that his non-attendance at church or the fact that he drinks beer with his lunch, or rides a bicycle, is considered of more moment than his power to instruct." Even before he got into difficulties over teaching evolutionary theory, John Scopes was criticized in Dayton for cigarette smoking and dancing. (Footnotes omitted.) D. Rubin and S. Greenhouse, The Rights of Teachers, Bantam 1984. The competing view is reflected in the following language from a Massachusetts Appeals Court's decision upholding a school committee's suspension of two tenured teachers due to their indictments on charges of welfare fraud: -8- There are certain forms of employment which carry a position of trust so peculiar to the office and so beyond that imposed by all public service that conduct consistent with this special trust is an obligation of the employment. See, e.g., Huntoon v. Quincy, 349 Mass. 9, 14, 206 N.E.2d 63 (1965) (police officers); Matter of Bonin, 375 Mass. 680, 709, 378 N.E.2d 669 (1978) (judges); Dupree v. School Comm. of Boston, 15 Mass.App.Ct. at 538, 466 N.E.2d 1099 (teachers). Teachers hold a position of special public trust because "[a]s role models for our children they have an 'extensive and peculiar opportunity to impress [their] attitude and views' upon their pupils." Dupree v. School Comm. of Boston, 15 Mass. App. at 538, 446 N.E.2d 1099, quoting from Faxon v. School Comm. of Boston, 331 Mass. 531, 534, 120 N.E.2d 772 (1954). See also Reutter & Hamilton, The Law of Public Education 484 (2d ed. 1976). Perryman v. School Committee of Boston, 458 N.E.2d 748, 750 (Mass. App. Ct. 1983). The Perryman court further stated that "[t]eachers are not required to comport themselves in a manner approved by all segments of a community in order to meet the obligation of their office . . . 7 and that "[a]lthough a position of special trust imposes additional obligations on certain public employees . . . [t]here must be a direct relationship between the activity and the trust." Id.8 In Lewiston Teachers Association v. The Lewiston School Committee, No. 86-04, 9 NPER ME-17011 (Me.L.R.B. June 30, 1986), the Board was called upon to determine whether the following contract proposal was mandatorily negotiable: ___________________________________ 7Compare Wright v. Superintending School Committee, City of Portland, 331 A.2d 640, 643 (Me. 1975)(school board may take "into account the special attitudes, problems and needs of the community" in determining teacher fitness). 8See generally, Elvin v. City of Waterville, 573 A.2d 381 (Me. 1990) (teacher's sexual relationship with high school student formed basis of determination of unfitness). -9- [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. Holding that the proposed language contained both mandatorily negotiable and educational policy aspects the Board opined: 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 [School] Committee's agreement that the Committee will not require waiver of these rights as conditions of employment would be mandatorily negotiable 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 performed by teachers at times other than during the workday such as grading papers, preparing lesson plans, or attending continuing education courses. Furthermore, there may be other activities or conditions 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. Lewiston Teachers Association v. The Lewiston School Committee, No. 86-04, slip op. at 21-22, 9 NPER ME-17011 (Me.L.R.B. June 30, 1986). It is of no significance with respect to the parties' successor negotiations that their next previous contract contained the phrase concerning teachers' private lives which is at issue here. The fact that a non-mandatory subject of bargaining is bargained about and included in a contract does not mean that it must be bargained for in future contract negotiations. Sanford Federation of Teachers v. Sanford School -10- Committee, No. 84-13, 6 NPER 20-15009 (Me.L.R.B. Mar. 20, 1984). The Committee possessed the right to demand without negotiation that the non-mandatory aspects of the subject phrase be deleted from the successor agreement. However, where, as here, multiple subjects within a phrase are divisable, a demand to remove non- mandatory aspects must be made in a manner which does not also constitute a refusal to bargain over those aspects of the phrase which are negotiable. The residual negotiable aspects of the phrase constitute as much a part of the parties' post-expiration status quo as other contract provisions more discretely phrased. Steadfast refusal to bargain on a "topic" basis, respecting proposal paragraphs, sentences or words, containing severable aspects which are mandatorily negotiable, runs afoul of the statutory requirement of good faith bargaining. See M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers Association, No. CV-79-541 (Me.Super.Ct., Ken.Cty., July 8, 1980)(reversing Nos. 79-36 and -47, 1 NPER 20-10027 (Me.L.R.B. August 24, 1979)), affirmed, 432 A.2d 395, 4 NPER 20-12032 (Me. 1981). Portions of the complaint denied by the Committee allege that: the Federation's negotiator "inquire[d] as to what the difficulty with the existing language was and indicated a willingness to modify the language so as to deal with any particular difficulties that the Committee saw with the language"; that "the Committee refused to enter into any negotiations"; that "[t]he Committee took the position that this was exclusively a matter of educational policy and therefore was not a mandatory subject of bargaining; and that "[t]he Committee refused to bargain on the subject and stated throughout the negotiations and mediation that this issue was not bargainable." These facts, unrebutted, would establish unlawful refusal to bargain. The parties have, however, agreed upon an abbreviated factual record which does not include these facts. Based on the agreed facts and within the limited nature of the action -11- requested by the parties in settlement of this controversy, we are constrained to find only that the question of what specific modification of the language at issue was necessary to effect the deletion of educational policies prerogatives was mandatorily negotiable. In deliberating this issue we have been mindful of both the right of teachers to insist on privacy in their personal affairs and the right of educational employers to set standards of educational services which will be provided to the public. Upon consideration we find that while an educational employer may refuse to bargain and must only meet and consult respecting matters of educational policy which pertain to the conduct of teachers in their private lives, a union may demand mandatory negotiations in an effort to exclude non-employment related criteria from decisions concerning wages, hours, or terms and conditions of employment. Accordingly, it was incumbent upon the Committee to narrowly couch its demand for language change to reflect a desire for the deletion of only those aspects of the topic of teachers' personal lives falling within its educational policies prerogative. ORDER On the basis of the foregoing stipulated record considered in light of the parties' written submissions and by virtue of and pursuant to the authority of the Board set forth in 26 M.R.S.A. 968(5) (1988 & Supp. 1992), it is hereby ORDERED that the -12- December 15, 1992, complaint of the Federation be and hereby is DISMISSED. Issued at Augusta, Maine, this 11th day of May, 1993. MAINE LABOR RELATIONS BOARD The parties are hereby advised /s/___________________________ of their right, pursuant to 26 Peter T. Dawson M.R.S.A. 968(5)(F) (Supp. Chair 1992), to seek review of this decision and order by the Superior Court. To initiate such a review, an appealing /s/___________________________ party must file a complaint Howard Reiche, Jr. with the Superior Court within Employer Representative fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements /s/___________________________ of Rule 80C of the Maine Rules George W. Lambertson of Civil Procedure. Employee Representative