STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 79-06

                         Complainant,  )
  v.                                   )                 DECISION AND ORDER
                         Respondents.  )

     This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed July 18, 1978 by the Erskine Academy
Teachers Association ("Teachers Association").  A response and a motion to
dismiss were filed on August 8, 1978 and an amendment to the motion to dismiss
was filed on September 1, 1978 by the Erskine Academy Board of Trustees

     A pre-hearing conference was held on August 28, 1978 by Chairman Edward
H. Keith who issued on August 29, 1978 a Pre-Hearinq Conference Memorandum and
Order, the contents of which are incorporated herein by reference.

     On October 24, 1978 the Board conducted a hearing in the case, Chairman
Keith presiding, with Michael Schoonjans, Employee Representative, and Paul D.
Emery, Employer Representative.  The amendment to the motion to dismiss was
accepted by the Board and the Board proceeded to take evidence only on the
issue of whether Respondent was a "public employer" within the meanings of 
962(7) of the Municipal Public Employees Labor Relations Act ("Act"), 26
M.R.S.A.  961 et seq.  The Board reserved the decision to proceed to a
hearing on the merits of the prohibited practice.

     The parties submitted post-hearinq briefs after which the Board met to
deliberate over the case.


     By the amended motion to dismiss, the Trustees challenge the Board's
jurisdiction to hear the underlying complaint on the grounds that the Trustees
are not a public employer.  We decide in this case only whether the Board has
jurisdiction under the Act.

                               FINDINGS OF FACT

     From the entire record in this case, the contentions of the parties, and
from the observation of the witnesses and their demeanor, the Board finds

     1.  Complainant Teachers Association's status as the bargaining agent
         per 26 M.R.S.A.  962(2) for all full time, certificated, profes-
         sional employees of Respondent excluding the Principal and the
         Guidance Director is dependent only on whether or not Respondent
         is a "public employer" per 26 M.R.S.A.  962(7).


     2.  Erskine Academy was created in a Trust Deed from Mary T. Erskine
         of China in 1882 to 5 Trustees appointed by her to use the interest
         and income from an endowment fund of $1500.00 to establish a "Free
         High School" entitled "Erskine High School" (later changed to Erskine
         Academy).  Trustee vacancies have always been filled through appoint-
         ment by the Judge of Probate for Kennebec County.  In 1882 there was
         a geographical school district system different from that utilized
         now.  It was Erskine's intention that the Trustees establish a high
         school within the existing school district, Number 14, that would be
         free for residents of the district and open to nonresidents who would
         pay tuition.

     3.  The Trust Deed provided that if District Number 14 ever established a
         high school, the Trustees could contribute the endowment fund income
         to the support of that High School, and also permit its buildings to
         be used for that purpose so long as it were conducted according to
         her intent, primarily that there be complete religious freedom.  The
         Trust Deed specifically warns, however:  "But under no circumstances
         shall the town of China in its corporate capacity have or exercise
         any control of the funds contributed by me or the income thereof."

     4.  By a special Act of the Legislature in 1891, the Trustees were incor-
         porated by the name of the "Trustees of the Erskine Academy" with a
         property holding limit of $35,000, which limit was eliminated by an
         amending Act of the Legislature in 1974.  In 1974, theTrusteest
         applied for and were granted recognition of exemption under Section
         501(c)(3) of the Internal Revenue Code.

     5.  No public high school has ever been established in China or the 7
         other surrounding towns, Chelsea, Jefferson, Palermo, Somerville,
         Vassalboro, Whitefield and Windsor.  Since none of these 8 towns have
         contracts with a specific high school for the education of all the
         town's eligible students, parents who want a free high school educa-
         tion for their children have the choice to send their children to
         Erskine Academy, or any of a number of public or other approved
         private schools.  Approximately 40 to 45% of the eligible students
         in these 8 towns do attend Erskine Academy.  The remaining 55 to 60%
         attend twelve other schools where most or all are also educated at no
         cost to the parents, 4 of them public and 8 privately-owned such as
         Erskine Academy.  See 20 M.R.S.A.  1291.  Erskine Academy is one of
         40 or 50 private schools in the State that are "approved" for the
         expenditure of public money.

     6.  Since the Trustees have a contract with no town, they are not certain
         when they open in the fall how many students will register.  They can
         probably make a fair estimate concerning the upper grades based on
         the previous year's attendance.  The number of students for the 9th
         grade are more speculative although the Guidance Counselor visits
         each 8th grade school in the area to explain about Erskine Academy
         and to invite pre-registration.  No student has ever been denied

     7.  In its October, 1977 enrollment report to the Commissioner of Educa-
         tion, Erskine Academy indicated that of its 402 students, the tuition
         for 400 was paid by the 8 municipalities.  Two students paid their
         own tuition.

     8.  The tuition payments made by these municipalities for the 1977-78
         school year amounted to $396,000:  96.1% of the Academy's total
         income of $411,561.30.  In contrast, the endowment fund (last valued
         at $82,000) produced only $2,620 and tuition from individuals only
         $2,060: 0.6% and 0.5% respectively of the total income of the Academy.
         Trustee James Caswell conceded the obvious fact that the Academy
         could not survive without public money.

     9.  The Academy's total worth is unclear, although an insurance agent
         recommended coverage of $1,250,000.  Part of its assets include buses
         for school bus routes that the Academy runs as a service to its
         students.  This service is paid for directly by the parents.

    10.  Erskine Academy received a $25,000 grant from the Legislature in 1966
         to pay for the foundation of an annex to one of its buildings.  The
         Academy is also exempt from State sales tax.


    11.  The maximum allowable tuition rate that the Academy may charge
         is computed by the State Board of Education per 20 M.R.S.A.
          1292.  That rate, in essence, is the lesser of Erskine's per
         pupil cost (excluding certain cost items) or the average public
         school per pupil cost.  Erskine's tuition rate for 1977-78 was
         $1,125.14, less than the average public school rate of $1,291.50.
         Included in Erskine's tuition charge is a $75 per pupil building
         use fee in lieu of depreciation.  See 20 M.R.S.A.  1292.  This
         is allowed since debt retirement and capital outlays are excluded
         from the initial tuition rate determination.

    12.  In order for Erskine to continue to have basic approval for attend-
         ance and tuition purposes, it must comply with the State law set
         forth in 20 M.R.S.A.  1281, et seq. and  1341 et seq.  At a mini-
         mum it must:  maintain a course of study approved by the Commissioner
         of Education; have a school day of sufficient length as approved by
         the Commissioner; have a minimum school year length; employ only
         certified teachers; have a maximum pupil-teacher ratio of 30:1;
         comply with safety and hygenic regulations of the Commissioner and
         of the Department of Human Services; include not less than 2 consecu-
         tive grades from 9 to 12; require certain American history and
         English courses In a planned program approved by the Commissioner;
         maintain adequate protected records; and maintain a minimum enroll-
         ment.  See 20 M.R.S.A.  1281.  There are further standards to be
         met to become "accredited."  Finally for Erskine Academy to actually
         receive public money it must submit detailed enrollment, financial
         and audited financial reports to the Commissioner.

    13.  Beyond compliance with these State laws and regulations, there is no
         control over the Trustees exercised by any municipality, town
         officer, or school superintendent.  The Trustees have no contract to
         provide services to the municipalities.  It works quite simply - the
         Trustees bill the 8 municipalities the maximum legal tuition rate for
         each student that attends and the municipalities pay the bills.

    14.  The municipalities then receive subsidies from the State to a varying
         extent depending on such variables as the local property tax base,
         state minimum tax rate, and the status of the oft-changed school
         funding law.

    15.  The Trustees at Erskine Academy have bargained collectively with the
         teachers since 1973 and have executed three or four collective bar-
         gaining agreements.  The most recent was effective from September 1,
         1977 until August 31, 1978.  This Agreement contains the following
         recognition clause:

              "The [Erskine Academy] Board [of Trustees] hereby recog-
               nizes the [Erskine Academy Teachers] Association as the
               exclusive bargaining representative as defined under
               State of Maine Public Law Chapter 424, Section 962
               [26 M.R.S.A.  962(2)], for the entire group of full
               time certificated professional employees of the Board
               having more than six (6) months continuous service at
               Erskine Academy excluding the Principal and Guidance

         The Agreement also contained the following negotiation procedure

              "The Board shall meet with the Association for the pur-
               poses of collective bargaining in accordance with
               Chapter 9-A of Title 25, Rev. 1973 [26 M.R.S.A.  961-


    16.  The two parties met in March and April, 1978 to negotiate a
         collective bargaining agreement for the current 1978-79 school
         year, but in May, 1978 the Trustees took the position that they
         are not a public employer - the issue to be decided herein.
         Pending resolution of this issue, the Trustees are not negotiating
         with the Association, although Principal Ernest Thurston is follow-
         ing the expired agreement in the interim.


     The Trustees contend that they are not a public employer as defined in
the Act.  They argue primarily that they are privately owned, are not a school
district, and are not under the control of any municipality or school

     The Association contends that the Academy is in essence a public high
school acting on behalf of these municipalities because it is overwhelmingly
supported by their money and because it fulfills the obligation of these
municipalities to provide a public education to its students.  Moreover, the
Association claims that Mary Erskine intended to create a "free high school"
which is synonymous with a "public high school."  Finally, it points to the
collective bargaining history and the past recognition of the Association
which it claims by definition constitutes an admission that the trustees are
a public employer.

     Upon consideration of the entire record, the specific findings of fact,
applicable legal precedent, and pertinent policy considerations, the Board
concludes, for the reasons stated below, that Respondent Trustees are not a
public employer as defined in 26 M.R.S.A.  962(7).  Accordingly, the
Trustees' motion to dismiss the complaint is granted.

     Member Schoonjans dissents.


     The governing definition is in 26 M.R.S.A.  962(7):

          " 'Public employer' means any officer, board, commission,
           council, committee or other persons or body acting on
           behalf of any municipality or town or any subdivision
           thereof, or of any school, water, sewer or other district,
           or of the Maine Turnpike Authority."

     The key issue is whether the Board of Trustees of Erskine Academy are
"acting on behalf of any municipality or town or any subdivision thereof, or
of any school . . . district."  This Board has previously construed the phrase
"acting on behalf of" in Baker Bus Service and Teamsters Local 48, MLRB
Report of Appellate Review of Unit Determination Hearing (Oct. 6, 1978).

     The Board held in Baker Bus that agency principles should be applied in
making the determination whether one is "acting on behalf of."  This test
would strike the proper balance between protecting employee rights and
placing ascertainable limit on the breadth of the language which the Board
believed the Legislature intended.[fn1]  The

  1 There is no guiding legislative history on this point.

Board defined this agency principle as not only acting on behalf of but in
addition being subject to the control of a town, school district, etc.  "The
right of control over the work to be performed thus is the critical factor
. . . ."   Baker Bus. supra at p. 6.

     The Board concluded that Baker Bus Service was an agent of the Board of
Education of the City of Augusta primarily because the Board of Education
retained a substantial degree of control over the operation of the school bus
system operated by Baker Bus Service, which control was demonstrated in a
number of contract provisions.  Also significant was the fact that Baker Bus
Service was required to make only a minimal capital investment when it agreed
to operate the school bus system, previously operated by the Board of Educa-

     In applying Baker Bus to the instant case, we are compelled to conclude
that Erskine Academy is not an agent of a town or school district and is
therefore not a public employer under the Act.  The Erskine Academy Board of
Trustees is under contract with no public body; it is totally independent of
local town and school officials; it was founded as a private school and still
operates under trustees who need be faithful only to State law, State regula-
tions, and the founding trust deed; it is responsible for its employees and
operations; and, significantly, it owns a huge capital investment.

     To hold otherwise would require a twisting of the theory of Baker Bus.
We are loathe to do so since we believe the agency theory is a most plausible
interpretation which is also well-suited to a definite application.

     This is not to say that we believe the teachers at Erskine Academy should
not be covered by the Act.  To the contrary, we see no real reason to distin-
guish between these teachers and those at any number of public schools that
are also supported by public finances.

     It is clear that Erskine Academy could not survive without its govern-
mental umbilical cord.  Moreover, there would seem to be a substantial state
interest in stable labor relations at schools which are educating students at
public expense.  Stability is not served by this decision.  On the one hand
our holding frees the Trustees from the duties and prohibitions of 26 M.R.S.A.
 964(1) including the duty to bargain.  On the other hand the teachers and
the Teachers Association are freed from the duties and prohibitions of 26
M.R.S.A.  964(2), including the prohibition from engaging in job actions.

     However, the Legislature did not establish a fixed degree of governmental
support as the determining factor in whether an entity is a public employer.
This is not an area where we feel free to exercise our labor expertise in
interpreting the Act since this section goes to coverage of the Act itself.
Thus, we believe it proper to leave it to the province of the Legislature to
change the Act if it desires.

     This is not to say that all privately-owned high schools are the same.
For example, we could reach a different conclusion if 6 school had a contract
with a town, or if there were other significant differences.


     We find no merit in the Association's contention that Mary Erskine
intended to found a "public secondary school" when she executed the trust
deed using the words "free high school."  Although State statutes now equate
these two terms, e.g., 20 M.R.S.A.  1341, the similarity is one of semantics
only.  Mary Erskine intended to found a high school that would be "free" to
residents of its then local school district but not a public institution in
the sense that it would be operated by or subject to the control of any town
or school district authority.

     Finally, we do not agree that the Trustees are a public employer because
they have bargained as such for a number of years.  This is a question of
subject matter jurisdiction which either does or does not exist.  Jurisdiction
cannot be conferred by consent or even by agreement.  Thus, despite the
Trustees conduct in the past, they are not a "public employer" as defined by
the Act.

     We therefore grant the motion to dismiss the prohibited practice
complaint.  SO ORDERED.

Dated at Augusta, Maine this 27th  day of March, 1979.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Paul D. Emery
                                       Employer Representative


                              DISSENTING OPINION

     The facts in this case are not in dispute.  However, I cannot agree with
the conclusion of the majority that the Erskine Academy Board of Trustees is
not a public employer under the Act.  I reach the opposite conclusion under
the language of the Act and under our Baker Bus decision.  Moreover, to hold
otherwise creates an absurd result which the Legislature would not have in-
tended.  Finally, the considerable public interest in having stable relations
at this essentially public school demands that we apply the Act with a view
towards serving that interest if possible.


     Erskine Academy is "acting on behalf of" these 8 towns.  26 M.R.S.A.
 962(7).  The only significant difference between the bus service company,
which was held to be a public employer in Baker Bus, supra, and Erskine
Academy is that the control over the entity was expressed in a written
contract in the former but is simply implied in the latter.

     The terms of the "contract" by which the Trustees are controlled are
understood by the towns when they decide at their town meetings to authorize
students to go to Erskine Academy.  They know that the course of study must
be approved by the Commissioner of Education, that the minimum length of the
school day and year is set, that the teachers must be certified, and that
the many other requirements will be met.  See Findings of Fact Par. 12;
20 M.R.S.A.  1281(1)-(10).  These areas are even further defined in 20
M.R.S.A.  102(7).  They also know that virtue and morality will be taught,
see 20 M.R.S.A.  1221; that the maximum tuition rate for Erskine Academy is
controlled by law, see 20 M.R.S.A.  1292; and that the Commissioner will
enforce these laws, see 20 M.R.S.A.  1284, 1286, 1344, 1346-48.

     The Trustees also know that it is critical to the Academy's survival that
they continue to remain eligible for tuition payments from these towns.  20
M.R.S.A.  1348.  Indeed, Erskine generates only 1/2 of 1% of its income from
its endowment fund and from privately-paid tuition.  Its once-private
character is now totally lost.  The reality is that Erskine Academy is the
public high school for China and its 7 surrounding towns.

     The public character of the school is further supported by the fact that
it is exempt from state sales tax, that it received a $25,000 grant from the
State to expand its facilities in 1966, that the towns are offsetting
depreciation on its facilities by a $75 per student payment, and that the
school was considered public enough for its teachers to participate in the
Maine State Retirement System and thereby have their retirement paid for out
of the State General Fund.

     Thus, not only is the public character of the Academy clear, but also,
and most significantly, the terms of the implied contract between the towns
and the Trustees, by which the Trustees are controlled, are clear even though
not explicit.



     The result which flows from the majority's conclusion here is an absurd
one and leads to mischievous consequences.  Such an interpretation should not
be created where it thwarts the clear purpose of the Act.

     The absurd result is, as the majority recognizes, the fact that there is
no meaningful distinction to be made between Erskine Academy and other public
schools in the State.  There is no demonstrable uniqueness about Erskine such
as can be found in some private schools, Christian academies, military
schools, etc.  It also bears little resemblance to schools which have students
paid for predominantly by parents and who receive little or no support from

     This "real" view of the facts I propose is further reinforced by the fact
that the Trustees had, until negotiations failed, considered themselves to be
a public employer since 1973.

     The mischievous consequence is that the stable collective bargaining
relationship as governed by the Act which once existed here will be destroyed.
The Trustees will have no duty to bargain with the Association.
Correlatively, the Association is not prohibited from striking, at least if
by a majority of the members.  See Glassman, Legislative Gaps in Maine's Labor
Relations Law, 21 Maine L. Rev. 1, 11 (1969 (hereafter "Glassman").  I believe
this is a giant step backward in the process of promoting harmonious labor
relations in our state.


     There is admittedly a want of legislative history to guide us in an
interpretation of this specific language.  There is no doubt, however, that
there is a State policy against unstable labor relations in schools where its
students are being educated.  The Supreme Judicial Court noted in City of
Biddeford v. Biddeford Teachers Ass'n, 304 A.2d 387, 398 (Me. 1973) that:

          "It is clear that the Legislature has recognized that the
           maintenance of a satisfactory quality of public education
           requires harmonious relations between school officials and
           the teaching staffs and that disagreements inevitably arise
           during the carrying out of their respective responsibilities.
           The abrasive effect of the existence of unresolved grievances
           is one of the threats to harmonious relations which the Le-
           gislature considers should be removed."

     Similarly, in reviewing the history of Maine labor laws prior to 1969,
now-Justice Harry P. Glassman found "a state policy encouraging collective
bargaining when the alternative is a work stoppage."  Glassman, supra, 21
Maine L. Rev. at 7.

     Thus, to the extent that the majority decision will allow a legislative
gap or inconsistency, I would hope that the Legislature would act to rectify
the situation by specifically defining "public employer" as including any
school receiving one half or one third of its operating funds by direct
appropriation from the State or from any municipality, or school district, or

     In summary, I conclude that the Erskine Academy Board of Trustees is a
public employer since it is paid by the surrounding towns an amount equal to
at least 96%


of its operating budget under terms of control implicit in the State education
laws, since the Academy realistically does act on behalf of these towns, and
since to hold to the contrary creates absurd and mischievous results contrary
to State policy and interests.  I therefore dissent from the decision and

Dated at Augusta, Maine this 27th day of March, 1979.

                                       Michael Schoonjans
                                       Employee Representative