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
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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.
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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
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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:]
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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
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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
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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
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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
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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
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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).
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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:
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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:
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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).
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[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
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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
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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
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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