STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 97-09
Issued: July 13, 1998
________________________________
)
LITCHFIELD EDUCATIONAL SUPPORT )
PERSONNEL ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
LITCHFIELD SCHOOL COMMITTEE, )
)
Respondent. )
________________________________)
The Litchfield Educational Support Personnel Association
(hereinafter "the Association") filed a prohibited practice
complaint against the Litchfield School Committee ("the School
Committee") on October 31, 1996. The Association's complaint
is twofold; it alleges that the School Committee and its
administrators at Libby-Tozier School: (i) violated 26 M.R.S.A.
964(1)(A) & (B) when they terminated Ms. Jeanne Strout's
employment as the librarian/media specialist in retaliation for
her union activities; and (ii) violated 26 M.R.S.A. 964(1)(A),
(B) & (E) when they unilaterally implemented evaluation
procedures for bus drivers and for Ms. Strout in retaliation for
their involvement in protected activities.
The School Committee contends Ms. Strout's termination was
not motivated by her union activities, but was based on
unsatisfactory job performance; further, that implementation of
bus driver evaluations was not an unlawful change in a mandatory
subject of bargaining nor a retaliatory measure.
A prehearing conference was conducted by Alternate Chair
Kathy M. Hooke on February 27, 1997. The Prehearing Conference
Memorandum and Order issued on March 14, 1997, is incorporated
herein and made a part of this Decision and Order.
-1-
_________________________________________________________________
An evidentiary hearing was conducted on April 9, May 14 and
June 2, 1997, by Alternate Chair Kathy M. Hooke, Employee
Representative Gwendolyn Gatcomb, and Employer Representative
Karl Dornish, Jr. The Complainant was represented by Rebecca
Fernald, UniServ Director of the Maine Education Association.
The Respondent was represented by Bruce Smith, Esq. The parties
were given full opportunity to examine and cross-examine
witnesses, introduce documentary evidence and make argument. The
parties were afforded the opportunity to file post-hearing briefs
which were considered by the Board prior to its deliberation of
this case.
For the reasons stated herein, we conclude that the
Litchfield School Committee through its agent, Principal Ron
Cote, unlawfully implemented an evaluation procedure for bus
drivers, in violation of 964(1)(A) & (E), and we will fashion a
remedy to redress this violation. We find, further, that the
Association has failed to meet its burden of proof in the
allegations pertaining to Ms. Strout, and hereby dismiss those
portions of the Association's complaint.
JURISDICTION
The jurisdiction of the Board to hear this case and to issue
a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988).
Neither party has raised an objection to the Board's jurisdiction.
FINDINGS OF FACT
Upon review of the entire record the Maine Labor Relations
Board finds the following facts:
1. The Litchfield School Committee is a public employer as
that term is defined in 26 M.R.S.A. 962(7)(A)(2). The schools
in Litchfield are governed by the School Committee; however, for
administrative purposes (e.g., the office of the superintendent),
they are part of School Union #44 which includes schools in
Litchfield, Wales and Sabattus, and Oak Hill High School.
-2-
_________________________________________________________________
2. Jeanne Strout has an undergraduate degree in mathematics
and a teaching certificate. Ms. Strout taught at Monmouth
Academy for five years before working at Libby-Tozier.
Ms. Strout also volunteered for several years to assist in
establishing the first library for students in the Litchfield
schools (located at Litchfield Academy).
3. Ms. Strout was hired in September, 1989, to work as a
librarian/media specialist in the library at Litchfield's Libby-
Tozier School (grades 3-8). Students at Litchfield's Central
School (grades K-2) also used Libby-Tozier's library until the
1992-1993 school year. That year Ms. Strout was asked to develop
a library at Central School for the K-2 grades; she relocated
appropriate library materials from Libby-Tozier to Central, and
divided her time between the schools.
4. Ms. Strout is not a certified librarian, nor was she
supervised by a certified librarian while employed at Libby-
Tozier; however, she completed several continuing education
courses in library skills offered by the Maine Library
Association. In April, 1995, Ms. Strout was commended by library
and media consultants from the Maine State Library for her
efforts in organizing the library media collection for student
use and for doing an excellent job of providing for student
access to library resources. Ms. Strout also organized and
managed at least two book fairs a year as fundraisers for the
library, at times without compensation.
5. In March, 1994, a fire destroyed the Central School.
The K-2 classes and library were relocated to the Libby-Tozier
school. When asked how the fire affected her responsibilities in
the library, Ms. Strout responded: "Changed the whole world."
Ms. Strout describes the time immediately following the fire as
one filled with "emotional breakdowns and major, major crises,"
and states that she "jumped right in as a facilitator and helped
as much as [she] could." In addition, the library began
receiving a great number of donated books and other library
-3-
_________________________________________________________________
materials. Ms. Strout worked countless hours during the
remainder of the school year and through the summer of 1994, with
as many volunteers as she could, to process these donations. The
library continued to receive donations through June, 1996.
6. In the summer of 1994, a campaign was begun to organize
the support staff of Libby-Tozier. Ms. Strout and a few other
employees met with Superintendent Larry Littlefield and the
School Committee's attorney, and the parties were able to agree
on the classifications to be included in the proposed bargaining
unit. On October 12, 1994, the Litchfield Educational Support
Personnel Association, an affiliate of the Maine Education
Association (MEA) and the National Education Association, was
elected as bargaining agent of the support staff (which included
bus drivers and the librarian/media specialist position).
The Association is a bargaining agent as that term is defined
in 26 M.R.S.A. 962(2).
7. At some time prior to the election, one of the School
Committee members who later served on the negotiating team
commented that there would be problems if the support staff
organized. Superintendent Littlefield met with the Committee
member and one of the organizers to address the comment.
8. Ms. Strout was elected secretary-treasurer of the
Association and, shortly after the election, she made arrange-
ments with the superintendent's staff for automatic dues
deduction from paychecks. The superintendent and members of the
School Committee were not informed of this at the time. When
they learned of it several months later, during contract
negotiations, they were upset and considered stopping the
deductions. In the end, no change was made and the eventual
contract included a provision for automatic dues deduction.
9. In September, 1994, Ms. Strout was assigned to perform
"early morning K-2 duty." One of the K-2 teachers is responsible
for assigning "duty time." Ms. Strout protested to Principal
-4-
_________________________________________________________________
Soule that the assignment took away from her library duties,
including extra work related to the fire at Central School, and
forced her to close the library at times she felt it should
remain open. Ms. Strout indicated that she refused to do the K-2
duty.
10. By letter dated September 2, 1994, Principal Soule
informed Ms. Strout that, despite the overwhelming nature of her
job in the library, her presence for early morning duty was
necessary due to staff changes in K-2. He informed her that she
would be suspended without pay for two weeks if she refused to
take this duty, and any further instance of insubordination may
result in termination of her employment. This was the first such
letter of reprimand Ms. Strout had received during her tenure at
Libby-Tozier.
11. Ms. Strout contacted Superintendent Littlefield on
September 6, 1994, and indicated that "a problem ha[d] arisen"
(the K-2 duty) between her and Principal Soule which she wished
to discuss with the superintendent. Ms. Strout mentioned to the
superintendent that she felt as if the duty assignment was a form
of harassment of her based on her union organizing campaign;
the superintendent denied any connection between the two. The
superintendent, after discussion with Principal Soule, decided to
support the principal's decision. Ms. Strout then requested that
this issue be placed on the next School Committee agenda.
12. On September 21, 1994, the School Committee heard
Ms. Strout's complaint about K-2 duty. The School Committee
decided to support the assignment. The following day Ms. Strout
broke down in the library and needed to take a medical leave of
absence for a couple of weeks. Her treating physician determined
she was suffering from a combination of stress and delayed grief
from the Central School fire. Upon her return to work Ms. Strout
performed the K-2 duty.
13. On October 17, 1994, Ms. Strout was offered an
-5-
_________________________________________________________________
employment contract for the 1994-1995 school year with no salary
increase over her previous one-year contract. Ms. Strout refused
to sign the contract at first, because the budget approved at
Town Meeting earlier in the year included a line item for a raise
in her salary. Ms. Strout returned the unsigned contract to
Superintendent Littlefield with the following note:
At the October 1993 School Board meeting the Litchfield
School Board (because of the cost of a new roof at
Central) said they would try their very best to
increase my salary this year (since funds were tight
last year). At Town Meeting the town accepted this
[higher] salary for me and many told me personally they
were pleased to see I got a raise. At least one person
got up in front of the town to say that I deserved the
increase. The whole town thinks my salary for this
year is $14033.12 and I am willing to accept that
amount. /s/ Jeanne R. Strout
Ms. Strout discussed this matter with Superintendent Littlefield;
however, he did not agree to adjust her salary to comport with
the line item in the budget. Ms. Strout then raised the issue
with the School Committee. Ms. Strout did not allege before the
Committee that the salary freeze was connected in any way to the
recent union election; she believed that the School Committee
"had misunderstood and that they had really intended for me to
get the [raise]." The School Committee decided against
increasing Ms. Strout's pay. Ms. Strout signed a contract for
the lower amount in November, 1994.
14. Negotiations for the first collective bargaining
agreement between the Association and the School Committee began
in May, 1995. The Association's negotiating team consisted of:
Rebecca Fernald, MEA UniServ Director; Stan Labbe, the head
custodian and chief negotiator; Ms. Strout; Mary Field, a
teacher; Linda Labbe, a bus driver; Amy Williams, a cook; and
Becky Ridley, the principal's secretary. While Ms. Fernald was
the primary negotiator, Mr. Labbe and Ms. Strout were the most
active employee participants in negotiations. The School
Committee's negotiating team consisted of: either Superintendent
-6-
_________________________________________________________________
Larry Littlefield or Assistant Superintendent David Williamson;
Roger Kelley, a labor relations consultant; and, at times, one or
two School Committee members. There were no hostile or
contentious exchanges between Ms. Strout and members of the
School Committee's team.
15. After the parties established ground rules, Mr. Kelley's
first remarks to the Association were that the School Committee
was not happy with the employees "going union," and it was not
happy with the negotiations. It felt the Association's proposal
was too comprehensive for an initial contract, and "set a
negative tone" for the negotiations. The Committee asked
Mr. Kelley to convey its dismay to the Association's negotiating
team. Mr. Kelley added that he understood the requirement under
the law to maintain the status quo, but that "the people in the
room" shouldn't expect that when the contract was completed, they
would retain everything they had at that point in time.
16. The negotiation sessions continued from May, 1995,
through the entire 1995-1996 school year. The parties believed
they were very close to reaching an agreement on the entire
contract, including a just-cause-for-discharge provision, in
June, 1996. Negotiations broke down at that time. The parties
participated in mediation and eventually entered into a contract
in October, 1996. The contract was retroactive to July, 1995,
for salaries only; the just-cause-for-discharge provision and the
remaining contract terms became effective in October, 1996.
17. On September 11, 1995, Ms. Strout entered into a one-year
contract for the 1995-1996 school year. In the beginning of the
1995-1996 school year, Ms. Strout sent the following note to the
K-2 teachers:
Just a quick note to let you know how much I truly
appreciate your managing without requiring me to do
duties this year. I lost 7.29 days last year to time
out of the library on duty or time I had to leave early
to compensate for duty time. We also have hundreds of
fire fund books still to be processed and around 400
-7-
_________________________________________________________________
books lost through computer updating. I am just
beginning to recover, and I thank you for letting me
devote my time to the library instead of having time
taken away because of duty. I was worried that a K-2
duty again this year would drastically affect the
library services I could provide you. I really am
relieved that this won't happen. Thanks again.
/s/ Jeanne
18. The day after she sent the note, Ms. Strout was assigned
these duties by one of the K-2 teachers. On September 7, 1995,
she sent a letter to the K-2 teachers which reads, in part:
Boy! Do I ever feel set-up! I just finish
thanking you for putting the needs of the library above
your need for free time, and Mitzi tells me that I AM
on the duty schedule, a total of 600 hours, or 7.5 DAYS
that I will be required to be away from work in the
library. I never would have believed it! I have
always felt that you put a high priority on the
library, or at least considered it an important
teaching tool. Boy, was I WRONG! I know some parents
and administrators think that all I do in the library
is to check out books, but the job is MUCH more
involved than that. Especially after the fire where we
took a tremendous loss in K-2 materials. I have
mountains of work to do to regroup and recover, and I
find people expecting me to do it on my own time, after
school and on weekends or vacations. I know I am
generous with my own time, but I am truly appalled that
I am expected to donate it readily. In the library I
work straight through all day. . . . I am, therefore,
already working all duties, and now you feel it is
necessary to add more time to my already full "duty"
time.
. . . I am not opposed to donating my time to
you, but it makes me lose a great deal of respect for
those who feel that I should donate all those hours
plus more.
When Mr. Soule first talked to me about doing a
K-2 duty his exact words were "it would be just once in
a while to help out." . . . I explained to him then
that you people need me in the library to help get it
back up and running after the fire. . . . You need me
to get the card catalog back on-line. You need me to
be able to research . . . . Because I fought to work
in the library, I was punished by being given whole
weeks of duty every other week. Someone tried to teach
me that the library was a definite LOW priority for the
-8-
_________________________________________________________________
K-2 school. I bounced back believing that the K-2
teachers still thought the library important, and that
it was a power play that had forced me to leave so much
library work undone. I guess I was truly wrong about
this, too. . . . it astounds me how wrong I have been
about any support there is for the library from K-2.
. . . Each day that I do your morning duty is 40
minutes that I cannot work in the library. . . .
Please reconsider the duty schedule, and see if I can't
spend more time for the library where I really am
working for you, too. Sincerely, /s/ Jeanne
Ms. Strout was not relieved of the K-2 morning duty assignment in
the 1995-1996 school year.
19. Ms. Strout worked with three principals during the
course of her employment: Mr. Joseph Moore, Mr. Thomas Soule and
Mr. Ronald Cote. She was never formally evaluated by Mr. Moore
or Mr. Soule and, for the most part, she ran the library
independently during their tenure. Mr. Moore and Mr. Soule told
Ms. Strout they thought she was doing a good job, and that they
appreciated the long hours and extra work she had been doing for
the library.
20. Mr. Cote replaced Mr. Soule as principal of Libby-
Tozier school in November, 1995. Mr. Soule spoke with Mr. Cote
prior to his leaving the post and one of the subjects discussed
was Ms. Strout's resistance to performing K-2 duty and her appeal
to the School Committee. He also discussed his concern about the
disorderliness of the library and his dealings with Ms. Strout on
that issue. Mr. Soule mentioned that Superintendent Littlefield
spoke with him about the appearance of the library and had
noticed that, even though a good deal of time was being spent
there by Ms. Strout and volunteers, not enough progress had been
made since the fire.
21. Superintendent Littlefield also spoke directly with
Principal Cote about the overall cleanliness and organization of
the library. Mr. Cote observed the condition of the library and
it was his opinion that the library was a "cluttered mess":
-9-
_________________________________________________________________
cartons and boxes on top of bookcases; many piles of books, cards
and papers on top of the circulation desk; mounds of papers and
stacks of cardboard from floor to ceiling behind the circulation
desk; mounds of material two-three feet high covering the
librarian's desk and computer.
22. Principal Cote was aware when he arrived at Libby-Tozier
that labor negotiations were taking place for the school's
support staff. Negotiations were held in the school library, which
is easily visible from the principal's office, and Mr. Cote
observed these sessions in progress.
23. During his first month, Principal Cote met with students
to get acquainted. Many of the students in grades 6-8 complained
they were bored with the library program. In December, 1995,
Mr. Cote met with Ms. Strout to convey the complaints he had
received from students.
24. During the early months of 1996, Principal Cote offered
Ms. Strout the opportunity to visit other school libraries.
Litchfield planned to construct a new middle school and Mr. Cote
believed it would be beneficial for Ms. Strout in planning the
new school's library to speak with other librarians about their
programs. Ms. Strout spent half a day at the Brunswick High
School library and visited libraries at the middle schools in
Yarmouth and Mexico.
25. On February 13 and 14, 1996, Principal Cote visited the
library unannounced. Mr. Cote observed the library for 10-30
minutes each visit, wrote "commendations" and "suggestions"
related to his visits, and shared these with Ms. Strout on
February 15, 1996. Two of the "suggestions" questioned the use
of computers in the library; two concerned Ms. Strout's
interaction with students; one of them concerned the need to
establish a "consistent behavior management plan"; another was to
implement a "consistent coordinated library skills program by
April, 1996."
-10-
_________________________________________________________________
26. Ms. Strout responded immediately to Principal Cote's
comments about his visits with a three-page memorandum which
reads, in part:
I still feel very strongly that many students in
kindergarten through second grade are being deprived of
the education in library that they should be getting
since the teachers no longer help with this time and in
many instances just drop off their class for me to
babysit returning only at the end of their library time
to pick up the class. . . .
. . .
. . . It is very frustrating to the students to
have just one person in the library so that when they
ask for help that person is too busy with stamping,
helping many others, or tending to discipline. . . .
It is obvious for those of us in the library that when
the classroom teacher (or some other adult aide) for
grades K-2 does not help out during library time, then
the student's education is being short changed, and may
even be impacted for life in a very negative way. . . .
I would also like some direction from you on how
you wish the attitude for middle school library time.
. . . Have you any suggestions for how I can
facilitate the library being a welcome place for
students without making it a rigid monitoring of
student activities and yet maintain proper sound levels
and behavior?
27. In response to Ms. Strout's memorandum, Principal Cote
suggested specific behavior management techniques and talked to
her about enlisting parent volunteers to assist her in the
library.
28. Prior to his visits to the library in February, 1996,
teachers in the K-5 grades complained to Principal Cote about the
condition of the library and the library program. When he met
with her on February 15th to discuss his library visits, Mr. Cote
told Ms. Strout that teachers were not pleased with the way the
library was running. Ms. Strout suggested a meeting with those
teachers so that she could hear their comments and seek
suggestions. Mr. Cote expressed concern that a meeting with the
-11-
_________________________________________________________________
entire group of teachers might be overwhelming for Ms. Strout and
that she would be displeased with what she heard. Ms. Strout
then suggested that they divide the teachers into two groups (K-2
and 3-5) for this purpose.
29. On February 29, 1996, the K-2 teachers met with
Ms. Strout and Principal Cote. Mr. Cote asked Mr. David
Williamson, the Assistant Superintendent of Curriculum for School
Union #44, to attend this meeting because he felt he was dealing
with "a performance problem." Mr. Cote indicated to those in
attendance that the purpose of the meeting was to "discuss
constructively how to improve the library and the library program
to benefit students first and then the staff." The discussion
began with a seven-point list of "Expectations to Foster
Enthusiasm for the Library" drafted by K-2 teachers. Mary Field,
who was on the Association's negotiating team with Ms. Strout,
was one of the teachers who participated in the meeting. At the
end of the meeting, Mr. Cote thanked the staff for their input
and Ms. Strout for "being there to receive suggestions."
Mr. Cote indicated he would be meeting with Ms. Strout and
developing a plan to make improvements. Ms. Strout felt the
meeting went very well and that many issues were resolved.
30. The teachers in grades 3-5 preferred to offer comments
in writing rather than meet personally with Ms. Strout about
their library concerns. Mr. Cote shared their written comments
with Ms. Strout.
31. On March 4, 1996, Principal Cote initiated a "Short Term
Action Plan" for Ms. Strout. Mr. Cote did not consult with the
superintendent or assistant superintendent with regard to
initiating the plan. The plan reads as follows:
Short Term Action Plan for
Jeanne Strout
The following need to be completed by April 1, 1996:
I. A behavioral management plan including expectations
-12-
_________________________________________________________________
and consequences needs to be posted.
II. A new method of slipping books which maximizes
library time.
III. Develop a structure for library time that includes
components of a strong lesson, i.e., introduction,
middle and closing.
IV. Library time needs to be better structured so as not
to include videos and computer games.
V. Stimulating library displays appropriate for grade
levels need to be rotated on a monthly basis.
VI. The library office and storage area needs to be
completely cleaned and reorganized.
VII. All parts of the library should be available to
all students.
VIII. An over due system which notifies the teacher and
allows them to follow up with the student.
32. Ms. Strout felt the plan represented a tremendous amount
of work to be completed by April 1. She was still processing
donations to the library in connection with the fire at the
Central School, she was in the middle of grading students, and a
book fair was scheduled to begin which was to last about 2 1/2
weeks.
33. On March 19, 1996, Ms. Strout met with Principal Cote
to request an extension of time to satisfy the action plan.
Ms. Strout expressed concern that she would not be able to
complete the plan for the reasons noted above; she asked whether
the plan was part of an evaluation of her; she asked whether she
needed to do areas of the plan which did not match her job
description; she mentioned she was still attempting to process
fire fund donations which continued to arrive at the library, and
how time-consuming it was to process each book. Ms. Strout
indicated she was making some progress, but needed more time.
34. In response to Ms. Strout's remarks, Mr. Cote indicated
that the plan was part of an evaluation; he stated that she
-13-
_________________________________________________________________
needed to accomplish all tasks listed without regard to her job
description; he asked how long ago the fire occurred and stated
that the library needed to be cleaned and rearranged, that fire
fund books needed to be packed-up, even if it meant she had to do
it on her own time. Mr. Cote agreed to extend the deadline for
completing the plan to April 12, 1996.
35. At Mr. Cote's request, Assistant Superintendent
Williamson conducted an observation of Ms. Strout's performance
in the library on March 29, 1996. On April 5, 1996, he and
Principal Cote met with Ms. Strout and Mr. Labbe, the
Association's chief negotiator, to discuss the observation.
Mr. Williamson began the meeting with the comment that it was a
good evaluation. His written observations include an even number
of commendations and recommendations; he notes that his
recommendations are the same as those made by the K-2 teachers a
month earlier. Mr. Labbe and Ms. Strout came away from the
meeting thinking it was a positive evaluation of Ms. Strout's
work.
36. On April 30, 1996, Principal Cote observed Ms. Strout in
the library. He and Mr. Williamson met with Ms. Strout on
May 13, 1996, to discuss this observation. Mr. Cote observed
that, while there were some "token efforts" made by Ms. Strout to
comply with the plan, she had not satisfied it. He felt that the
area behind the circulation desk still needed to be cleaned and
organized, even though Ms. Strout said she had already cleaned
that area. When Ms. Strout commented that she thought she was
complying with the plan's requirement for enriching displays, he
commented that he really had something else in mind and gave
specific examples. Mr. Cote had noticed a behavior management
chart on the wall, but indicated to Ms. Strout that he expected
her to actively manage student conduct, which she felt she was
not able to do in addition to helping students who requested
assistance. Mr. Cote raised the issue of computer games and his
belief that they were inappropriate in a library. Ms. Strout
-14-
_________________________________________________________________
stated that, although she considered the "Race for the States"
computer game a useful learning tool, she would discontinue this
practice in the library (her written response questioned whether
the principal objected to "this computer technology").
37. On May 29, 1996, Mr. Williamson again observed
Ms. Strout's performance in the library. Mr. Williamson's
comments were not immediately shared with Ms. Strout; they
included commendations and recommendations primarily related to
behavior management.
38. Two days later Ms. Strout was informed that Principal
Cote did not intend to recommend her continued employment.
Mr. Cote was of the opinion that Ms. Strout had not satisfied the
action plan in the following areas:
1. A behavioral management plan including expectations
and consequences needs to be posted.
2. Library time needs to be better structured so as not
to include videos and computer games.
3. Stimulating library displays appropriate for grade
levels need to be rotated on a monthly basis.
4. The library office and storage area needs to be
completely cleaned and reorganized.
Relationships with students and adults still need
improvement.
There is not enough alignment of [Ms. Strout's] skills
with the skills needed in the library.
39. Mr. Cote testified that Ms. Strout "resisted supervision"
and was difficult to communicate with. Ms. Strout agrees that
they had problems communicating with each other; that even though
Mr. Cote tried to convey what he wanted she was never exactly
clear about his expectations.
40. Ms. Strout believed she had satisfactorily completed the
plan. She thought her posters and her projects met Principal
Cote's expectations because he never commented negatively about
-15-
_________________________________________________________________
them; she had stopped the use of computer games; she had enlisted
the help of the custodial staff, and many fire fund boxes had
been removed from the library, although she realized she had not
completed this task. Mr. Labbe confirmed that he and another
custodian removed numerous boxes of library materials at
Ms. Strout's request; however, he testified that there were many
boxes left to remove when Ms. Strout was terminated. Mr. Labbe
also testified that the library was more neat and orderly the
year after the new librarian started than it was during
Ms. Strout's last year.
41. On June 11, 1996, Superintendent Littlefield met with
Ms. Strout, Ms. Fernald and Mr. Labbe at Ms. Strout's request, to
hear their appeal of the principal's decision. The superintendent
informed them he would meet with Principal Cote and review
written materials before making his final determination. By
letter dated June 18, 1996, Superintendent Littlefield informed
Ms. Strout that he concurred with the recommendation to "open
this position" for the next school year. In doing so, he relied
on written observation reports and notes taken by Mr. Cote and
Mr. Williamson during their meetings with Ms. Strout. He also
relied on his own observations of the physical appearance of the
library and his judgment that there had not been significant
improvement in the two years since the fire at Central School.
42. On June 24, 1996, the School Committee met to address
Ms. Strout's appeal of her termination. The School Committee
voted unanimously that no further action would be taken
concerning Ms. Strout's termination.
43. None of the other members of the Association's
negotiating team was disciplined or received any sort of
unfavorable treatment during or following negotiations.
44. During the 1995-1996 school year Superintendent
Littlefield and Assistant Superintendent Williamson met with the
heads of support staff throughout School Union #44 to develop job
-16-
_________________________________________________________________
descriptions and then evaluation procedures tailored to specific
job classifications. Wayne Lagasse, head bus driver at Libby-
Tozier, and Stan Labbe, head custodian, attended these monthly
meetings with their counterparts from other schools in the union.
Members of the support staff at Libby-Tozier had never been
formally evaluated prior to this time. The superintendent made
it clear to Principal Cote that job descriptions and feedback to
employees by way of evaluations was one of his top priorities.
45. Mr. Lagasse and Mr. Labbe had the distinct impression
that evaluations would not be conducted until the 1996-1997
school year. Neither of them had been instructed by the
superintendent or assistant superintendent to complete
evaluations by the end of the 1995-1996 school year. By April,
1996, job descriptions had not yet been developed for the bus
driver position and the evaluation form under consideration was
not yet finalized.
46. Prior to April, 1996, the parties had tentatively agreed
in negotiations to an article on evaluations which reads:
A. Employees shall be consulted prior to the
adoption of any change in the evaluation procedure.
B. Employees may be evaluated annually by their
immediate supervisor and/or the appropriate
administrator.
C. Employees shall have an opportunity to meet
with the evaluator after the evaluation and may
attach a written response to the evaluation.
47. On April 4, 1996, Principal Cote attended a regularly-
scheduled bus drivers' meeting, at the request of the bus
drivers. The bus drivers were frustrated and upset with
Mr. Cote's inattention to their reports of student discipline
problems and they wanted to address their concerns to him as a
group. The tone of the meeting was one of putting Mr. Cote in
"the hot seat." One of the bus drivers, Betty Jo Wade, testified
that the bus drivers "basically told [Mr. Cote] how to do his
-17-
_________________________________________________________________
job." Mr. Cote acknowledged the importance of addressing these
discipline problems in a timely fashion and indicated he would
try to do so in the future.
48. Immediately after the meeting Mr. Cote instructed the
head bus driver to conduct performance evaluations on all of the
bus drivers. Mr. Cote told Mr. Lagasse to be sure to include
incidents of performance problems they had previously discussed,
even though Mr. Lagasse had spoken with the drivers in question
and believed the problems were resolved. Mr. Lagasse questioned
the appropriateness of performing evaluations at that time, in
light of the unfinished work on the evaluation forms and
procedures being developed system-wide. Mr. Cote insisted that
evaluations be conducted using whatever form and procedure
Mr. Lagasse chose to use.
49. Principal Cote did not instruct any other head of
support staff at Libby-Tozier (custodial, food service,
educational technicians or secretaries) to conduct performance
evaluations prior to the close of the 1995-1996 school year.
50. On April 8, 1996, Principal Cote sent the following
letter to Mr. Lagasse:
At our last bus drivers meeting on April 4, 1996,
we discussed completing bus drivers evaluations for
the 1995-1996 school year. It is extremely important
that we provide all staff with feedback on their
performance, both strengths and areas for improvement.
I am scheduling a meeting with you on April 23,
1996 at 1:00 P.M. to review and discuss your evalu-
ations of the Litchfield bus drivers. Please take the
time necessary during the April vacation to prepare
these evaluations, and include commendations and areas
which need improvement. It is important that you
include conferences we've had concerning specific
drivers and safety concerns that were discussed.
I look forward to meeting with you after vacation.
51. Mr. Lagasse conducted performance evaluations between
April and early June, 1996, using the form being developed at the
-18-
_________________________________________________________________
system-wide meetings. This form/procedure contemplated review
and signature of each evaluation by the principal. Principal
Cote did not review or sign any of the evaluations performed by
Mr. Lagasse. As of June, 1997, the new head bus driver had not
evaluated the bus drivers for the 1996-1997 school year.
52. On June 5, 1996, Mr. David Byras, president of the
Association, and Mr. Labbe, its chief negotiator, met with
Assistant Superintendent Williamson to discuss the new evaluation
procedures being developed and to protest the conduct of bus
driver evaluations.[fn]1 Mr. Byras, a bus driver who had not yet
been evaluated, had just learned from Association members that
the bus drivers were being evaluated. The Association also
expressed concern over the treatment of Ms. Strout, considering
it to be part and parcel of these premature evaluations.
Mr. Byras felt he needed to call this meeting because members of
the Association were alarmed about Ms. Strout's impending
termination and mentioned withdrawing their membership in the
union. Mr. Byras states: "I felt that if we could get the
evaluations withdrawn from the files that that would take some of
the pressure off the bargaining unit, showing that we . . . did
have some . . . a little bit of clout . . . ."
53. Mr. Williamson did not reply to the Association by
July 1, 1996. Mr. Byras and Mr. Labbe sent him a letter on that
same date which reads, in part:
When we asked you for the evaluation policy and
procedure for conducting these evaluations, you said
there are none in place. The evaluation procedures you
are currently working on union-wide are scheduled to be
implemented in the next school year. . . .
. . . The evaluation procedure, which is a subject of
bargaining, is also a change in the status quo of
support staff working conditions.
____________________
1 At this point in time, Superintendent Littlefield had left
School Union #44 and Mr. Williamson was serving in an acting
capacity.
-19-
_________________________________________________________________
To correct this situation, the Association requests
that administration negotiate the evaluation procedure
with the union before implementing it. Also, the
Association requests that the evaluations that were
completed last year be removed from employee files and
destroyed, since they were not conducted according to a
negotiated procedure.
54. Mr. Williamson did not respond to the July 1 letter.
Mr. Labbe approached him at the close of a School Committee
meeting in September, 1996, and Mr. Williamson said he would try
to find the July letter and respond to it. He never responded to
the letter. Principal Cote was never informed of the July
correspondence from the Association and he denies having
knowledge of the proposed evaluation language in the contract.
55. When Mr. Labbe met with Mr. Williamson and Ms. Strout
(see Fact #35), Mr. Labbe questioned the appropriateness of the
observations of Ms. Strout in light of the on-going contract
negotiations. Mr. Labbe mentioned that the Association had not
received written notice that the observations would be conducted.
Mr. Williamson responded that there was no Association at that
time (since the contract had not yet been settled).
56. During contract negotiations, the Association attempted
to protect Ms. Strout from termination by proposing retroactivity
of the just-cause-for-discharge article to cover the date of her
termination. The "length of agreement" clause (retroactivity
issue) was an issue presented in mediation. By October, 1996,
the School Committee's negotiating team held firm on its position
that the contract would be retroactive only as to salaries and
the just cause provision would not be effective until the date
the contract was signed. The Association met with Ms. Strout in
October, 1996; after doing so, it decided to sign the contract
and, as Mr. Labbe states: "go this route. And here we are."
The Association's complaint was filed with the Maine Labor
Relations Board two weeks later.
-20-
_________________________________________________________________
DISCUSSION
This complaint concerns the treatment of Ms. Jeanne Strout,
the librarian/media specialist at Libby-Tozier School, and the
treatment of Libby-Tozier's bus drivers, during negotiations for
the first collective bargaining agreement between the Litchfield
Educational Support Personnel Association and the Litchfield
School Committee. We will address each allegation separately.
Termination of Ms. Jeanne Strout's Employment
The Association alleges Ms. Strout's employment contract was
not renewed at the end of the 1995-1996 school year because of
her involvement in union activities. The Association contends
that the School Committee's treatment of Ms. Strout violates
26 M.R.S.A. 964(1)(A) & (B). We conclude that the Association
has failed to meet its burden of proof and, accordingly, dismiss
the complaint as it relates to the treatment of Ms. Strout.
We will first address the Association's section 964(1)(B)
discrimination claim, because the section 964(1)(A) claim is
derivative; that is to say, the claim that the School Committee
interfered with, restrained and coerced employees in the exercise
of protected rights in violation of section 964(1)(A) derives
from the allegation of discriminatory treatment of Ms. Strout in
violation of section 964(1)(B), not from conduct independent of
the alleged discrimination.[fn]2
____________________
2 The Association's complaint, while citing section 964(1)(A),
does not allege facts to support a charge that employees other than
Ms. Strout were interfered with, restrained or coerced in the exercise
of their rights. The School Committee, therefore, objected to the
introduction of evidence at hearing pertaining to the reaction of
co-workers to Ms. Strout's predicament. We question the need to
introduce any evidence of co-workers' reactions in complaints such as
this, in light of our previous decision in Teamsters Union Local #340
v. Rangeley Lakes School Region, No. 91-22, slip op. at 22, 14 NPER
ME-23005 (Me.L.R.B. Jan. 29, 1992) (discriminatory discharge of
complainant, a union organizer, inherently interferes with the free
exercise of employee rights in violation of section 964(1)(A)).
In any event, we do not need to address the 964(1)(A) claim in light
of our determination that there is no causal connection between
Ms. Strout's union activities and her termination.
-21-
_________________________________________________________________
Section 964(1)(B) prohibits a public employer from
"encouraging or discouraging membership in any employee
organization by discrimination in regard to hire or tenure of
employment." In order to support a section 964(1)(B)
discrimination claim, the Association has the burden of proving
that: (i) Ms. Strout engaged in protected activity; (ii) the
decision-makers had knowledge of Ms. Strout's participation in
protected activity; and (iii) there is a relationship, or "causal
connection," between the protected activity and the School
Committee's adverse employment actions against Ms. Strout.
Casey v. Mountain Valley Education Association and School
Administrative District No. 43, Nos. 96-26 & 97-03, slip op. at
27-28 (Me.L.R.B. Oct. 30, 1997) (citing Teamsters Union Local
#340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 18,
14 NPER ME-23005 (Me.L.R.B. Jan. 29, 1992)).
Even if a complainant proves these three essential elements,
the employer may still avoid liability if it is able to prove by
a preponderance of the evidence that the employment action was
based on unprotected activity as well, and the same action would
have been taken regardless of the employee's protected activity.
Maine State Employees Association v. State Development Office,
499 A.2d 165, 168-69 (Me. 1985); Jeannie Ross and Portland
Teachers Association v. Portland Superintending School Committee,
et al., No. 83-04, slip op at 22-25, 6 NPER 20-14038 (Me.L.R.B.
Aug. 29, 1983) (even though union established anti-union animus
as a motivating factor in the transfer of teacher, employer
established legitimate justification for its decision including
poor working relationship between teacher and administration).
We find that the Association has satisfied the first two
elements of its burden of proof, but has failed to prove the
requisite causal connection. There is no dispute that
Ms. Strout's involvement in the organizational campaign, her role
as an officer, and her participation on the Association's
negotiating team, constitute protected activity. Although
-22-
_________________________________________________________________
Principal Cote denies knowledge of Ms. Strout's participation in
protected activity, we have no trouble finding that Mr. Cote knew
Ms. Strout was involved in negotiations. It is not credible that
he knew negotiations were in progress when he arrived at Libby-
Tozier, and he observed meetings in the library with the MEA
representative and, presumably, the superintendent or assistant
superintendent in attendance, but that he did not know these
meetings were contract negotiations or observe Ms. Strout at
these meetings. Mr. Cote's testimony concerning his lack of
knowledge of Ms. Strout's involvement in negotiations was
particularly unpersuasive.
Moreover, there is no dispute that Superintendent Littlefield
and Assistant Superintendent Williamson knew of Ms. Strout's
involvement in protected activity and each played a crucial role
in her termination. Superintendent Littlefield instructed
Mr. Cote to focus on the library, and he chose to accept the
termination recommendation after his review of the matter.
Assistant Superintendent Williamson worked hand-in-hand with the
principal in observing Ms. Strout and critiquing her performance.
While there is no evidence that these administrators discussed
Ms. Strout's union activities in connection with her performance
reviews and ultimate nonrenewal they, at least tacitly, endorsed
Mr. Cote's treatment of an active participant in the union.
In order to prove the third element of a section 964(1)(B)
claim the Association was required to show by a preponderance
of the evidence that Ms. Strout's protected activity was "a
substantial or a motivating factor" in her termination. Maine
State Employees Association v. State Development Office, 499 A.2d
at 168. Although we are troubled by the treatment of Ms. Strout
at a critical point in time for the nascent union, we cannot
conclude that her union activities played any part in the
decision to terminate her. Even if we were to find that her
involvement in union activities played a part in the decision to
end her employment, we are left with the clear impression that
-23-
_________________________________________________________________
Ms. Strout would have been terminated in any event.
We believe that Ms. Strout's problems began with the fire at
the Central School in March, 1994. Even Ms. Strout sees this as
a crucial turning point; she states that the fire at the Central
School changed her whole world. Prior to that time, the
principals at Libby-Tozier permitted Ms. Strout to run the
library independently and there were no complaints about the
program or her performance as librarian. In the months following
the fire Ms. Strout worked countless hours and, nevertheless, was
overwhelmed by the task before her of managing fire fund
donations and keeping up with her regular duties.
After the fire, the K-2 teachers from Central School moved
into Ms. Strout's building. The decision at the start of the
following school year to assign Ms. Strout K-2 duties was made by
those teachers, not the administration. We see no basis for
Ms. Strout's complaint to the superintendent, at that time, that
this assignment was retaliation on the part of the administration
for union activity.[fn]3 Ms. Strout's resistance to performing K-2
duties caused her former principal to warn her about insubordi-
nation, and created tension in her relationship with the K-2
teachers who were now located at Libby-Tozier.
Ms. Strout appeared before the School Committee twice in the
fall of 1994: to complain about the assignment of K-2 duties and
to challenge the superintendent's decision to freeze her salary.
Her appearances before the School Committee stemmed from the
increase in her workload related to the fire, and were not in any
____________________
3 The Association does not contend that either the K-2 duty
assignment or the decision to freeze Ms. Strout's salary was
retaliation for protected union activity and we decline to so
conclude. Even if these employment actions constituted unlawful
retaliation, they occurred well beyond the MPELRL's statute of
limitations and were not connected to Ms. Strout's termination
two years later.
-24-
_________________________________________________________________
way connected to her contemporaneous union activities.[fn]4 These
issues, and not Ms. Strout's union activities, most likely laid
the groundwork for former-principal Soule's unfavorable remarks
about Ms. Strout to Principal Cote.
The 1995-1996 school year began with the K-2 duty issue and
Ms. Strout's unpleasant letter to all K-2 teachers. Ms. Strout
noted that she was still faced with "mountains of work to do to
regroup and recover" from the fire, and we are convinced that
this was the case. Although Superintendent Littlefield discussed
his displeasure with the appearance of the library with Principal
Soule, Ms. Strout's job performance had not been closely
supervised or formally called into question prior to the arrival
of a new principal in November, 1995. We find this event,
unrelated to union activity, to be the second critical turning
point in Ms. Strout's employment at Libby-Tozier.
When Principal Cote arrived, the superintendent instructed
him to target the library for improvement. Unlike former
principals who commended Ms. Strout for her hard work and
dedication to Libby-Tozier's library, Mr. Cote was new to Libby-
Tozier and unacquainted with Ms. Strout. His superior gave him a
directive and he set about to accomplish it without any regard
for Ms. Strout's long-term allegiance to the library. There is
no evidence that the superintendent's directive or Mr. Cote's
response to it was motivated by Ms. Strout's involvement in the
union.
Shortly after Mr. Cote arrived at Libby-Tozier, he received
additional negative feedback about the library from students and
____________________
4 The Association argues that Ms. Strout's appearances before
the Committee marked her as "a vocal advocate for fair treatment
of employees," and made her a likely target for retaliation
against the union two years later. We decline to draw this
inference. Ms. Strout's appearances before the Committee
concerned her own working conditions, not those of others.
-25-
_________________________________________________________________
from teachers. The meeting with the K-2 teachers in February,
1996, led to Ms. Strout's short-term action plan, not her
involvement on the union's negotiating team. Ms. Strout's
perception that issues were resolved by the close of that meeting
was not realistic. While performance issues were discussed, they
had not been resolved; the action plan was designed to resolve
them. There is no evidence that Ms. Strout was singled out based
on her union activities rather than on the substantive issues
raised in the seven-point list of "expectations to foster
enthusiasm for the library."[fn]5
Principal Cote was motivated by the former principal, the
superintendent, students and teachers, to clean up the library
and change the library program. He designed the short-term
action plan with this motive in mind. We note that he did not
seem intent on terminating Ms. Strout at first; he had made
arrangements for her to visit other libraries in anticipation of
Litchfield's soon-to-be constructed middle school. If he was
intent on terminating her employment because of her union
activities, it seems to us he would not have made such
arrangements.
Even though Ms. Strout believes she completed the action
plan, we do not believe she did. The physical appearance of the
library, although somewhat improved, was still disorderly;
behavior management problems continued; Mr. Cote did not find the
types of displays he had in mind; and he was particularly irked
by the continued use of the computer game, long after he had
first questioned it. Having said that, we do not know how any
employee could have completed the action plan to Mr. Cote's
satisfaction within a five-week period in the same working
conditions as those faced by Ms. Strout.
____________________
5 We note that Mary Field, who was on the Association's
negotiating team with Ms. Strout, was one of the K-2 teachers who
participated in this meeting. It is unbelievable that Ms. Field
would involve herself in any effort to harass Ms. Strout based on
her participation in negotiations.
-26-
_________________________________________________________________
We are not impressed with the manner in which Ms. Strout's
performance problems were handled by Principal Cote and Assistant
Superintendent Williamson. Mr. Cote's communications did not
adequately define his expectations either because of lack of
skill or willingness to be bothered. We find that Ms. Strout was
given very little direction or even simple suggestions on how to
improve. At some point after his meeting with the K-2 teachers
and Ms. Strout, and once the observations were underway,
Principal Cote determined that he wanted to hire a new librarian
and he acted swiftly to this end.[fn]6
Principal Cote mentioned on the termination notice that
Ms. Strout's relationships "still need improvement." Mr. Cote
testified at hearing that he was unable to communicate
effectively with Ms. Strout and Ms. Strout agreed with this
assessment. We conclude that Principal Cote was frustrated by
this communication problem, a matter not easily resolved, and
that this problem substantially contributed to his decision to
terminate her. Our review of Ms. Strout's correspondence to the
K-2 teachers, and the observation reports and Ms. Strout's
responses to them, convince us that Ms. Strout's communications
were not responsive and her style could be offensive. Our
observation of Ms. Strout at the hearing (for example, see
transcript at 123-24; 130; 141-42; 152; 198-200; 201-202; 473)
also supports this conclusion. We find that poor communications
caused tension between Ms. Strout and the K-2 teachers and
frustrated Principal Cote, and substantially contributed to the
decision to terminate her employment.
____________________
6 The Association claims that Mr. Cote did not have just
cause to terminate Ms. Strout's employment, and that he acted
swiftly in her case to avoid the possibility that the contract
would settle and the just cause provision apply to his decision.
We have concluded that Mr. Cote had legitimate reasons to
terminate Ms. Strout. Moreover, the fact that Principal Cote
acted swiftly, very likely to avoid the obligation to prove just
cause, does not necessarily prove a discriminatory motive for
termination.
-27-
_________________________________________________________________
In any event, there is no evidence that Mr. Cote wanted to
hire a different librarian because Ms. Strout was actively
involved in union activities, or that he hoped to discourage
membership in the union which had been voted in twenty months
earlier by terminating Ms. Strout.
The Association has failed to meet its burden of proving
that there was any connection between Ms. Strout's involvement in
union activities and the decision to terminate her employment.
We conclude that any anti-union animus which existed was not
directed at Ms. Strout and, in any event, played no part in
Principal Cote's decision to seek a new librarian.
Evaluation of Bus Drivers
The Association alleges that Principal Cote, as agent of the
School Committee, violated 26 M.R.S.A. 964(1)(A), (B) & (E)
when he unilaterally implemented performance evaluations of the
bus drivers at Libby-Tozier school in retaliation for their
involvement in protected activity.
A. Section 964(1)(E) Refusal to Bargain - Unilateral Change
It is clear to us that Principal Cote ordered Wayne Lagasse
to conduct performance evaluations of the bus drivers immediately
after the bus drivers' meeting in April, 1996, as a direct result
of that meeting. Mr. Cote brushed aside Mr. Lagasse's concern
about the appropriateness of conducting evaluations before the
superintendent's system-wide effort was completed because his
directive was not connected in any way with that system-wide
effort.[fn]7 Principal Cote acted on his own and he acted swiftly,
____________________
7 Assistant Superintendent Williamson credibly testified that
the job description for bus drivers, a prerequisite for the
evaluation form, had not yet been completed when Mr. Cote
directed Mr. Lagasse to evaluate bus drivers. Regardless of the
status of system-wide support staff evaluations, Principal Cote
clearly targeted the bus drivers at Libby-Tozier. The head
custodian at Libby-Tozier understood that evaluations would not
be conducted until the 1996-97 school year and, in fact,
Principal Cote did not instruct him to conduct evaluations of the
custodial staff until then. None of the other support staff
-28-
_________________________________________________________________
without prior notice to the Association, in order to exercise his
authority over bus drivers who had questioned his ability to
efficiently handle their student discipline complaints. Mr. Cote
did not care what form or procedure was used; the important thing
was to act quickly and to be sure to include negative aspects of
performance.
Implementation of bus driver evaluations by Principal Cote
without prior notice to the Association, during the period of
time in which negotiations were in progress for an initial
collective bargaining agreement, constituted an unlawful
unilateral change in the working conditions of bus drivers at
Libby-Tozier, in violation of section 964(1)(E).[fn]8
It is well-established that changes in the mandatory
subjects of bargaining implemented by a public employer without
notice to the bargaining agent contravene the duty to bargain in
good faith. City of Bangor v. AFSCME, Council 74, 449 A.2d 1129,
1135 (Me. 1982). In order to establish such a violation of the
duty to bargain, three elements must be established. The
employer's action must: (i) be unilateral; (ii) be a change from
a well-established practice; and (iii) involve a mandatory
subject of bargaining. Auburn Firefighters Association v.
Valente et al., No. 87-19, slip op. at 7, 10 NPER ME-18017
(Me.L.R.B. Sept. 11, 1987).
A public employer's unilateral change during negotiations
may be permissible, however, if it is consistent with offers made
during negotiations and if one of the following four situations
exists: (1) a bona fide impasse has been reached; (2) important
____________________
employees at Libby-Tozier were evaluated during the 1995-96
school year pursuant to the system-wide evaluation effort.
8 We agree with the School Committee that the observations
and written reviews of Ms. Strout's performance constituted
intervention by administration to address perceived problems, not
implementation of a new evaluation procedure. We, therefore,
dismiss the Association's section 964(1)(A) & (E) charges as they
relate to Ms. Strout.
-29-
_________________________________________________________________
business exigencies require immediate managerial decision;
(3) the union has waived its right to bargain about the
unilateral change; or (4) the unilateral change results from a
traditional practice which existed prior to the commencement of
negotiations. Auburn Firefighters at 8-9.
There is no dispute that Principal Cote's decision to
conduct bus driver evaluations was unilateral. The decision was
made without prior notice to the Association; the Association was
not afforded reasonable opportunity to bargain over the
evaluation procedure. The School Committee contends that
implementation of bus driver evaluations was permissible,
however, for three reasons: (1) evaluations of bus drivers is not
a mandatory subject of bargaining; (2) implementation of
evaluations was consistent with the dynamic status quo doctrine;
and (3) the Association bargained or, alternatively, has waived
the right to bargain concerning evaluations implemented in the
spring of 1996. We will address each contention separately.
Evaluations of bus drivers is a mandatory subject of bargaining.
The Act obliges public employers to confer and negotiate in
good faith with respect to wages, hours, working conditions and
contract grievance arbitration, with one exception relevant to
this case: " . . . public employers of teachers shall meet and
consult but not negotiate with respect to educational policies;
for the purpose of this paragraph, educational policies shall not
include wages, hours, working conditions or contract grievance
arbitration." 26 M.R.S.A. 965(1)(C). The School Committee
contends that the educational policies exemption to the general
rule requiring negotiations over working conditions applies to
bus drivers' working conditions as well as teachers', since bus
drivers are employed by the "employers of teachers." The
Committee reasons further that, since the Board has determined
that the frequency, form and criteria of teacher evaluations and
the identity of evaluators of teachers are matters of educational
policy, not subject to negotiation, Lewiston Teachers Association
-30-
_________________________________________________________________
v. Lewiston School Committee, No. 86-04, slip op. at 24-26, 9
NPER ME-17011 (Me.L.R.B. June 30, 1986); Caribou School
Department v. Caribou Teachers Association, No. 76-15, slip op.
at 4 (Me.L.R.B. Jan. 19, 1977), then the matter of bus driver
evaluations is educational policy as well.
We will assume for the sake of argument that all matters of
educational policy are non-negotiable, whether they involve
teachers or bus drivers;[fn]9 however, the issue in this case is
whether the procedure for evaluating bus drivers is a matter of
educational policy. We decline to read the educational policy
exemption so broadly as to cover evaluation procedures for school
bus drivers.
City of Biddeford v. Biddeford Teachers Association, 304
A.2d 387 (Me. 1973) outlines the parameters of the educational
policy exemption to the general rule requiring negotiations over
working conditions. The Board has considered Justice Wernick's
opinion in Biddeford to be the "lodestar" in determining the
applicability of the educational policies exemption where it is
asserted by employers to avoid negotiation over certain subjects.
Lewiston Teachers Association at 14-15. In his opinion in
Biddeford, Justice Wernick cautioned that the educational
policies exemption was not:
. . . legislatively intended broadly to mandate
continuance of the unilaterally exclusive powers of
school boards to 'supervise' and 'manage' the public
schools . . . [or that] any concrete item tending to
impinge upon any area ordinarily conceived as
'supervision' or 'management' must be excluded as an
appropriate subject of mandatory collective bargaining
regardless of its concomitant relationships to the
'working conditions' of teachers.
. . . On the contrary, the legislature was careful,
explicitly and definitively, to insert additional
____________________
9 We are unaware of any previous case before the Board
concerning the application of the educational policies exemption
to a failure to bargain with school employees other than
teachers.
-31-
_________________________________________________________________
language having strong tendency to show that
'educational policies' was legislatively intended to be
restrictively, not broadly, conceived -- specifically
that . . . 'educational policies shall not include
wages, hours, working conditions or contract grievance
arbitration.'
Such double emphasis by the legislature upon the
overriding importance of the concept of 'working
conditions' in relation to the collective bargaining
process . . . signifies . . . a legislative design that
the general doctrine of 'unilaterally exclusive
managerial prerogative' 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 bargaining of all other public employees -
into a litany noble in sound but hollow in reality.
. . .
. . . functions generally cognizable as 'managerial'
and 'policy-making' can subordinate the 'working
conditions' features, and accomplish an exclusion from
negotiability . . . 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.
Id. at 419-420.
Justice Wernick proceeded to illustrate his technique for
determining whether subjects did or did not constitute
educational policies.[fn]10 Included in these illustrations is an
observation that "foundational educational value judgments" -
those "judgments bearing upon the welfare of the students, as
reflected in the ultimate quality of their education and the
extent to which it may be improved or weakened" - cannot
____________________
10 For example: "Class Size." Although the size of a class
to be taught by a given teacher plainly and seriously affects
teacher 'working conditions,' the impacts of 'class size' overlap
into a number of 'managerial' and 'policy' areas which are of
substantial qualitative importance. 'Class size' requirements
directly involve considerations not merely of organization,
supervision, direction and distribution of personnel but also of
the needs for additional school building construction or other
types of capital outlays . . . .
Id. at 420.
-32-
_________________________________________________________________
reasonably be subordinated to the overlay of teacher "working
conditions." Id. at 421.
Interestingly, Justice Wernick discusses the issue of the
use of teacher aides for non-teaching "housekeeping functions,"
such as to monitor playgrounds, supervise lunch periods, load and
unload school buses and other non-teaching types of activities,
and determines that this issue does not constitute "educational
policy" and, therefore, is a proper subject for teachers'
contract negotiations. Id. at 422.
The Board first addressed the educational policies exemption
in the case Caribou School Department v. Caribou Teachers
Association, No. 76-15 (Me.L.R.B. Jan. 19, 1977). In Caribou,
the Board concluded without discussion that "the matter of
frequency of [teacher] evaluations and the form used to record
the evaluations . . . are so closely related to the proper
management of a school that they are educational policies." Id. at 4.
Conversely, the Board has held that, while the criteria
and standards by which a teacher is evaluated constitute
educational policy, schools must negotiate the impact of the
implementation of teacher evaluation programs. Saco-Valley
Teachers Association v. M.S.A.D. #6 Board of Directors, No. 79-
56, slip op. at 5, 1 NPER 20-10025 (Me.L.R.B. Aug. 9, 1979) (in
order for teachers to receive positive evaluations they may have
to expend money and time attending courses and, perhaps, toil in
other new areas; therefore, directors should have met to
negotiate concerning the impact of the new evaluation program).
The Board has also held that a proposal that teachers will
receive a copy of the evaluation criteria and form at the
beginning of the school year is a mandatory subject of
bargaining. M.S.A.D. No. 43 v. M.S.A.D. No. 43 Teachers
Association, No. 79-36, slip op. at 17, 3 NPER 20-12015
(Me.L.R.B. Mar. 18, 1981).
The Board revisited teacher evaluations in Lewiston Teachers
Association. In that case, the teachers union's negotiators
-33-
_________________________________________________________________
proposed to identify and define who shall be the evaluators of
teachers. While the Board determined that the union was barred,
as a matter of educational policy, from bargaining the identity
of evaluators, the Board determined that the proposal that
teachers be informed of the identity of their evaluators and be
given early notice of the criteria by which they will be
evaluated was a mandatory subject of bargaining (i.e., not
educational policy). Lewiston Teachers Association, No. 86-04 at
25. The Board's reasoning was as follows:
While the functions of an evaluator involve such
important employment decisions as those concerning
promotion, transfer, assignment, discipline, dismissal
and non-renewal, on balance, the responsibility 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 the 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 evaluative product.
The evaluative function is of such "qualitative
importance," per the words of Biddeford, that we find
that the identification 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 product. 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 determining the identity and
qualifications of the evaluators selected by the public
employer.
Lewiston at 25-26 (emphasis added).
We are not persuaded by this string of educational policies
exemption cases, going back to the "lodestar" Biddeford case,
that the exemption was meant to be so broad as to include the
procedures employed to evaluate school bus drivers. We find that
the emphasis in these cases, and the substantive basis for
-34-
_________________________________________________________________
determining whether a matter constitutes educational policy, is
whether it concerns "foundational educational value judgments"
affecting the "ultimate quality of education." The focus is on
whether the issue at hand touches on "the effective implementa-
tion of the educational program" and "quality of educational
product." The further away from classroom teaching a school
employee gets, the less likely it is that their performance
impacts the quality of education. Justice Wernick said as much
in Biddeford, in his discussion of the issue of the use of aides
in "non-teaching" functions.
In any event, the Association's complaint here is not about
a failure to negotiate the frequency or form of bus driver
evaluations, matters which constitute educational policy when
applied to teachers. The Association complains that Principal
Cote violated the unilateral change rule by implementing the
evaluations without first providing the Association with notice
and an opportunity to bargain the procedure employed.
Even in the case of teacher evaluations, the statute
obligates employers to meet and consult with respect to such
educational policies. This was not done here. In addition, the
Board has determined that schools must negotiate the impact of
implementation of teacher evaluation programs, and that matters
such as receipt of a copy of the evaluation criteria and form at
the beginning of the school year are mandatory subjects of
bargaining for teachers. We find that the requirement to, at
least, meet and consult with respect to evaluations applies to
support staff, and that the other procedural matters mentioned
above are mandatory subjects of bargaining in negotiations for
educational support staff as well.
Assistant Superintendent Williamson's failure to respond to
the Association's complaint about the unilateral implementation
of bus driver evaluations compounded Principal Cote's violation.
Mr. Williamson's impression that "there was no union" as of
April, 1996, implying that he had no obligation to the
-35-
_________________________________________________________________
Association until there was a contract in place, was just plain
wrong.
Implementation of bus driver evaluations was not consistent with
the dynamic status quo doctrine.
During the time period between the certification of a
bargaining agent and the execution of an initial collective
bargaining agreement, the unilateral change rule is embodied in
the requirement that the "dynamic status quo" be maintained by
the employer in connection with the mandatory subjects of
bargaining for the newly-organized employees. Teamsters Local
Union No. 48 v. Boothbay/Boothbay Harbor Community School
District, No. 86-02, slip op. at 11, 9 NPER ME-17009 (Me.L.R.B.
Mar. 18, 1986). This means that, until the first contract is
executed, "benefits customarily given or already provided for
under arrangements in effect at the time of certification of the
bargaining agent must be continued." Council #74, AFSCME v. Town
of Brunswick, No. 85-08, slip op. at 6, 8 NPER ME-16014
(Me.L.R.B. Apr. 19, 1985).
The Committee contends that, since the development of bus
driver evaluations occurred simultaneously in all units within
School Union #44, and because evaluations were implemented in
other towns within the Union in the spring of 1996, it would not
have been consistent with the dynamic status quo doctrine for the
superintendent to have excluded Libby-Tozier from the evaluation
process solely because a new bargaining unit had been formed.
The Committee's reasoning is faulty for two reasons: (1)
there was no evaluation procedure in place for Libby-Tozier's bus
drivers when the union was voted in in October, 1994; and, (2)
implementation of the evaluations by Principal Cote was not done
in connection with the system-wide effort underway in the fall of
1995. Principal Cote acted on his own and instructed the head
bus driver to use whatever form and procedure he chose, brushing
aside concerns about the incomplete system-wide effort.
-36-
_________________________________________________________________
Implementation of bus drivers' evaluations (hardly considered a
"benefit") by Principal Cote was not consistent with the dynamic
status quo doctrine.
The Association did not bargain or waive its right to bargain
concerning implementation of bus driver evaluations.
The School Committee contends that the Association, by
agreeing to an effective date of October 16, 1996, with respect
to the evaluation language, settled the issue of evaluations
prior to the effective date of that contract by not placing any
restriction on management prerogative to evaluate during that
period. We disagree.
The Board has consistently held that the reaching of an
agreement does not necessarily moot a violation of the duty to
bargain in good faith during negotiations which led to the
agreement. Jefferson Teachers Association v. Jefferson School
Committee, No. 96-24, slip op. at 19 (Me.L.R.B. Aug. 25, 1997)
(citations omitted); M.S.A.D. No. 43 Board of Directors v.
M.S.A.D. No. 43 Teachers Association, No. 79-36, slip op. at 12,
3 NPER 20-12015 (Me.L.R.B. Aug. 24, 1979) (fact that parties
reached an agreement on a school calendar provision does not
render moot the school's charge that the Association violated its
duty to bargain in good faith by insisting upon bargaining to
impasse on this educational policy).
The rationale for this Board policy is that:
The Board does not oversee the settlement of private
disputes, but rather is entrusted with the responsi-
bility of protecting public rights. These rights are
not protected, nor the effects of any unfair labor
practice expunged, merely because of a private
settlement of the dispute. Moreover, the public and
the charging party are entitled to the protection of
further rights by the requirements of continued
compliance with a cease and desist order.
M.S.A.D. No. 43 Board of Directors, No. 79-36, slip op. at 12.
We find that this policy is especially applicable in
-37-
_________________________________________________________________
situations such as those at Libby-Tozier, where the parties have
entered into a new bargaining relationship and the violation of
the duty to bargain in good faith occurs prior to the initial
contract.
We next address the School Committee's defense that the
Association waived its right to bargain the issue of evaluation
procedures. The School Committee's defense may have been viable
had the violation occurred mid-term of the collective bargaining
agreement reached in October, 1996, and if the agreement contained
a "zipper clause." Neither is true in this case. We do not
endorse the notion of a retroactive waiver proposed by the School
Committee.
Moreover, the Association could not possibly have waived its
right to negotiate the evaluation procedure before it was
implemented because it had no notice or opportunity to bargain
prior to Principal Cote's implementation of the procedure. Once
it received notice, the Association attempted in vain to
negotiate with Assistant Superintendent Williamson. These
attempts through at least September, 1996, certainly persuade us
that the Association did not waive its right to negotiate over
the bus driver evaluations. Consistent with the policy of
construing zipper clauses strictly, Lewiston Teachers Association
v. Lewiston School Committee, No. 80-45, slip op. at 6, 2 NPER
20-11038 (Me.L.R.B. Aug. 11, 1980), we hold that, in the absence
of a "clear and unmistakable waiver," the Association did not
waive its section 965(1)(C) rights with regard to bus driver
evaluations.
In conclusion, we hold that the Litchfield School Committee,
through its agent Principal Cote, violated section 964(1)(E) when
it unilaterally implemented bus driver evaluations in the spring
of 1996.
-38-
_________________________________________________________________
B. Section 964(1)(A) - Interference, Restraint and Coercion
Unlawful unilateral changes not only violate the duty to
bargain in good faith but also tend to interfere with the
exercise of employees' bargaining rights guaranteed by the Act.
Auburn Firefighters Association v. Valente, No. 87-19, slip op.
at 12, 10 NPER ME-18017 (Me.L.R.B. Sept. 11, 1987). Failure to
bargain with a newly-elected bargaining agent, as is the case
here, would especially tend to interfere with, restrain and
coerce employees in the exercise of their bargaining rights. We
are mindful that this was a particularly vulnerable period for
the Association and there was a degree of hostility evident from
the administration. The School Committee was not "happy" that
the support staff had organized; a School Committee member
threatened trouble because of it; Mr. Kelley's opening remarks
introduced hostility into the relationship;[fn]11 and Assistant
Superintendent Williamson repeatedly ignored the Association's
officers. We find that Principal Cote's unilateral change in the
bus drivers' working conditions, in the context of these stray
remarks, definitely constituted a violation of section 964(1)(A).
C. Section 964(1)(A) & (B) - Retaliation for Protected Activities
We agree with the School Committee that the bus drivers'
meeting with Principal Cote was not protected activity under the
Municipal Public Employees Labor Relations Law (MPELRL).[fn]12
Section 964(1)(B) prohibits public employers from discouraging
membership in unions by discriminating, and section 964(1)(A)
prohibits employers from interfering with, restraining or coercing
employees in the exercise of rights guaranteed in section 963.
____________________
11 We find Mr. Kelley's comments at the start of negotiations
to be hostile and a bit odd. It seems to us that the Committee
would have expected a comprehensive proposal for an initial
contract.
12 We do not agree with the Committee that the complaint is
untimely as to the evaluations. The Association first learned
from its members, around the end of May, 1996, or early June,
1996, that evaluations had been implemented, and filed the
complaint on October 31, 1996.
-39-
_________________________________________________________________
Section 963, entitled "Right of public employees to join labor
organizations," guarantees employees the right "to join, form and
participate in the activities of organizations of their own
choosing for the purposes of representation and collective
bargaining."
The bus drivers' meeting was not an Association meeting, nor
was it called by the Association on behalf of its bus driver
constituency. It was a regular meeting of the bus drivers that
the principal was asked to attend. The MPELRL is not as broad as
the National Labor Relations Act, which protects any concerted
activity for the purpose of mutual aid or protection;[fn]13 the MPELRL
protects union activity.
We have concluded that Principal Cote was motivated by this
bus driver meeting to unlawfully unilaterally implement the
evaluations; however, his motivation did not violate the MPELRL
because the meeting was not protected activity under the MPELRL.
Since we have concluded that the unilateral implementation of
bus driver evaluations violated 964(1)(A) and (E) of the MPELRL,
we will provide appropriate remedies necessary to effectuate the
policies of the Act. In exercising our remedial authority, we
seek "a restoration of the situation, as nearly as possible, to
that which would have obtained" but for the unfair labor
practice." (citations omitted). City of Bangor v. AFSCME, Council
74, 449 A.2d 1129, 1136 (Me. 1982).
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
____________________
13 Section 7 of the NLRA, entitled "Rights of Employees,"
reads in part: "Employees shall have the right to self-
organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . . ."
-40-
_________________________________________________________________
Labor Relations Board by the provisions of 26 M.R.S.A. 968(5),
it is hereby ORDERED:
1. That the Respondent Litchfield School
Committee, and its representatives and agents, shall:
A. Cease and desist from refusing to
bargain in good faith with the Association by
making unilateral changes in the working
conditions of its members without first
providing notice to the Association and an
opportunity to bargain;
B. Permanently expunge from all files
the evaluations of bus drivers completed in
the 1995-1996 school year;
C. Cease and desist from interfering
with, restraining, or coercing Association
members in their exercise of the rights
guaranteed by the Act.
2. That the Litchfield Educational Support
Personnel Association's complaint in this proceeding
is otherwise hereby dismissed.
Dated at Augusta, Maine, this 13th day of July, 1998.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. 968(5)(F) (Supp.
1997), to seek review of this
decision and order by the /s/___________________________
Superior Court. To initiate Kathy M. Hooke
such a review, an appealing Alternate Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/___________________________
and order, and otherwise Karl Dornish, Jr.
comply with the requirements Employer Representative
of Rule 80C of the Maine Rules
of Civil Procedure.
Employee Representative Gwendolyn Gatcomb filed a separate
opinion, concurring in part and dissenting in part.
-41-
_________________________________________________________________
While I concur with the majority of the Board in its decision
regarding the bus driver evaluations, I dissent from its decision
regarding Ms. Jeanne Strout. The majority utilized the correct
legal standard in analyzing the Association's section 964(1)(A)
and (B) claim related to Ms. Strout; however, it reached a result
which is contrary to the evidence in this case.
I do not agree with the Board's conclusion that the
Association has failed to meet its burden of establishing a prima
facie case of discrimination against Ms. Strout. I believe that
evidence of the termination of an active union organizer during
negotiations for an initial contract is sufficient evidence to
establish a prima facie case of discrimination. Teamsters Union
Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at
20 (Me.L.R.B. Jan. 29, 1992) (timing of union proponent's discharge
coincident with widespread organizational rumors and the taking of
first steps toward representation contributes to an inference of
discrimination when viewed in the totality of circumstances).
I would have shifted the burden of proof to the School
Committee to show that Ms. Strout's termination was for legitimate
reasons and would have occurred even if the Association was not in
the midst of negotiating its first contract. I believe that the
facts in this case demonstrate that Ms. Strout would not have been
terminated if she had not been engaged in protected activity.
Ms. Strout was employed at Libby-Tozier for over six (6)
years without ever having received notice of poor job performance.
She was a dedicated librarian and it seems to me she should have
been given extra consideration for her hard work related to the
Central School fire. Instead, she was denied a raise (after the
union organizing campaign began), harassed about the disorderliness
of the library, and treated shabbily by the administration.
Unlike the other Board members, I believe that Ms. Strout's
appearances before the School Committee had everything to do with
Ms. Strout's contemporaneous union activities. I believe her union
activities emboldened Ms. Strout to appear before the Committee, to
-42-
_________________________________________________________________
show the others that one could stand up and be counted now that
there was a union. I do not believe she would have appeared
before the Committee if there had not been a union organizing
campaign, and I agree with the other Board members that her
appearances caused the former principal to mention Ms. Strout to
Principal Cote.
I found most of Mr. Cote's testimony not credible.
For example, it is not credible to me that the students only
complained to the new principal about the librarian and had
no concerns about teachers. I believe Mr. Cote thoroughly
documented his February visits to the library because he already
had a plan in motion to get rid of Ms. Strout. I believe the
reasons given by Mr. Cote for terminating Ms. Strout were
pretextual and meant to mask a discriminatory motive.
I agree with the other Board members that no one could have
satisfied that action plan in the time given to Ms. Strout, and in
the same circumstances; however, I attribute this to Mr. Cote's
intent to terminate Ms. Strout well before this action plan was
written, and I believe her union activities were a substantial
motivating factor for him. The comments made by members of the
School Committee and administration evidence enough anti-union
animus at Libby-Tozier to infer a discriminatory motive on the
part of its principal.
Ms. Strout's involvement in union activities was the one
change, the turning point, in her 6 years of employment at Libby-
Tozier which would explain the sudden "performance problems" and
the speed with which Ms. Strout went from dedicated librarian to
problem employee. I conclude that the Association has met its
burden of proof related to Ms. Strout's termination, and that her
termination constituted a violation of 26 M.R.S.A. 964(1)(A) & (B).
/s/___________________________
Gwendolyn Gatcomb
Employee Representative
-43-
_________________________________________________________________