MSAD #43 Board of Directors v. MSAD #43 Teachers Assoc., Nos. 79-36, 79-39, 
79-45, 79-47, modified by MSAD #43 Teachers Assoc. v. MSAD #43 Board of 
Directors and MLRB, CV-79-541, aff'd 432 A2d 395 (Me. 1981).
Board Decision on Remand from Superior Court, March 18, 1981.


STATE OF MAINE                             MAINE LABOR RELATIONS BOARD
                                           Case Nos. 79-36, 79-39, 79-45,
                                                                   79-47
         
         
         
___________________________         
                           )
Case Nos. 79-36, 79-47     )
                           )
M.S.A.D. NO. 43 BOARD      )
OF DIRECTORS,              )
                           )
          Complainant,     )
                           )
  v.                       )
                           )
M.S.A.D.  NO. 43 TEACHERS  )
ASSOCIATION,               )
                           )
          Respondent.      )
___________________________)              DECISION AND ORDER
                           )                          
Case Nos. 79-39, 79-45     )
                           )
M.S.A.D.  NO. 43 TEACHERS  )
ASSOCIATION,               )
                           )
          Complainant,     )
                           )
                           )
M.S.A.D. NO. 43 BOARD      )
OF DIRECTORS,              )
                           )
          Respondent.      )
___________________________)         
         
     These cases come to the Maine Labor Relations Board ("Board") by way of
prohibited practice complaints filed November 7, 1978 and January 5, 1979 by
the M.S.A.D. No. 43 Board of Directors ("Directors"), and by way of prohibited
practice complaints filed December 4, 1978, with amendment filed January 16,
1979, and December 27, 1978 by the M.S.A.D. No. 43 Teachers Association
("Association").  The Association's answers to the Directors' complaints were
filed December 4, 1978, with amendment filed January 5, 1979, and January 3,
1979.  The Directors' answers to the Association's complaints were filed
December 20, 1978 and January 22, 1979.
         
     Pre-hearing conferences on the cases were held December 5, 1978, January 9,
1979, February 15, 1979, and March 20, 1979, Alternate Chairman Donald W. Webber
presiding.  As a result of these pre-hearing conferences, Alternate Chairman
Webber issued on December 18, 1978, January 15, 1979, February 20, 1979, and
March 26, 1979, Pre-Hearing Conference Memoranda and Orders, the contents of
which are incorporated herein by reference.  The cases were consolidated for
Board hearing and detemination at the February 15, 1979 pre-hearing conference.
         
     A hearing on the cases was held May 21, 1979, Alternate Chairman Donald W.
Webber presiding, with Employer Representative Paul D. Emery and Employee Repre-
sentative Michael Schoonjans.  Briefs arguing the issues raised in the cases were

                                     -1-

all filed by July 11, 1979, and the Board proceeded to deliberate over the cases
at a conference held August 2, 1979.
         
         
                                 JURISDICTION
         
     Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in these matters, and we conclude that the Board has jurisdiction to hear
the cases and render a decision and order as provided in 26 M.R.S.A.  968(5).
         
         
                              FINDINGS OF FACT
         
     Upon review of the entire record, the Board finds:
         
          1.  The M.S.A.D. No. 43 Board of Directors, the duly authorized
              governing board for a school district encompassing the Towns
              of Mexico, Byron, and Roxbury, Maine, is a "public employer"
              as defined by 26 M.R.S.A.  962(7) and within the meaning of
              26 M.R.S.A.  968(5) (B).  The M.S.A.D. No. 43 Teachers Asso-
              ciation is the "bargaining agent" as defined in 26 M.R.S.A.
               962(2) for certain teachers employed by the Directors, and
              is a "public employee organization" within the meaning of
              26 M.R.S.A.  968(5)(B).
         
          2.  On April 19, 1978, the Directors and the Association com-
              menced negotiations over a collective bargaining agreement to
              succeed an agreement then in force with an expiration date of
              August 31, 1978.  The parties exchanged their proposals for
              the successor agreement at this initial bargaining session.
         
          3.  At the May 11, 1978 bargaining session, the Directors dis-
              tributed to the Association a list of topics taken from
              the Association's April 19th proposal which the Directors
              contended to be non-mandatory subjects of bargaining.  The
              Directors declined to bargain over these topics, which in
              general terms involved Teacher Rights, School Calendar,
              Teaching Hours and Teaching Load, and Teacher Evaluation.
         
          4.  The Association's proposal regarding Teacher Rights which
              the Directors contend is a non-mandatory subject of bargain-
              ing reads:
         
                "No teacher shall be disciplined, or reduced in rank
                 or compensation, without just cause.  No tenure
                 teacher's contract will be terminated without just
                 cause.  This shall not apply to the complaint of a
                 non-tenure teacher which arises by reason of that
                 teacher not being re-employed."
         
          5.  The School Calendar proposal in dispute provides:
         
             "B.  The employment year for teachers, other than new personnel,
                  those with an extended contract year, and others who may be
                  required to attend pre-school orientation sessions, shall
                  begin no earlier than one day prior to the first scheduled
                  day of instruction and shall not exceed 180 days.  There
                  will be a minimum of 175 days of pupil-in-attendance, and a
                  minimum of 3 teacher workshop days.  The combination of the
                  two will equal 180 days.

                                     -2-

             "C.               SCHOOL CALENDAR
                                   1977-78

                                           Pupil-in-   Teacher
                                           Attendance  Workshop   Total
         
             FIRST TERM

             Aug. 29, Monday      Staff Workshop           1
             Aug. 30, Tuesday     Classes Begin
             Sept  5, Monday      Labor Day - No School
             Oct. 10, Monday      Columbus Day - No School
             Nov. 11, Friday      Veterans' Day- No School
             Nov. 24, Thursday    Thanksgiving Day - No School
             Nov. 25, Friday      No School
             Dec. 22, Thursday    Close for Christmas Recess
                                           __________  ________   ______
                                          
                                                78          1        79
         
             SECOND TERM

             Jan. 2, Monday       Classes Begin
             Feb. 17, Friday      Close for February Recess
                                           __________  ________   ______
                                           
                                                35          0        35
         
             THIRD TERM

             Feb. 27, Monday      Classes Begin
             April 14, Friday     Close for Spring Recess
                                           __________  ________   ______

                                                35          0        35
         
             FOURTH TERM

             Apr. 24, Monday      Classes Beqin
             May 29, Monday       Memorial Day - No School
             June 8, Thursday     School Closes
             June 9, Friday       Staff Workshop            l
                                           __________  ________   ______

                                                33          1        34
                                           __________  ________   ______

                           Totals              181           2      183
         
            "Three (3) storm days are built in the calendar.  Any storm days not
             used will be deducted from the closing date of June 9th."
         
         
          6.  The disputed proposal regarding Teacher Hours and Teacher Loads states:
         
               "B.  [Classroom teachers shall, in addition to their lunch
                    periods, have daily preparation time during which they
                    shall not be assigned to any other duties as follows:]
         
                    "1. Elementary and middle-thirty (30) consecutive
                        minutes weekly average per day.
         
                    "2. Junior high - forty-five (45)  minutes (consecutive)
                        weekly average per day.
         
                    "3.  Senior high school - fifty (50) minutes (consecutive)
                         weekly average per day.
         
               "H.  Each teacher will have a duty-free lunch period of thirty
                    (30) minutes.

                                      -3-

               "I.  The District will hire aides to supervise the lunch
                    rooms.
         
               "J.  The district will hire aides to supervise the playground
                    during the lunch-recess period."
         
          7.  The Association proposal regarding Teacher Evaluation which the
              Directors contend is a non-mandatory subject of bargaining
              provides:
         
                "2.  b.  At the beginning of the school year each teacher
                         will receive a copy of the evaluation criteria and
                         form to be utilized.  The form and criteria shall
                         be jointly developed and approved by the Administra-
                         tion and Association.
         
                "3.  b.  A written evaluation form shall be given to the
                         teacher within five working days of the visitation
                         [by the evaluator].  In narrative form it will cite
                         the positive instructional values and the specific
                         negative areas needing improvement.  For each nega-
                         tive area a method of improvement will be recommended."
         
          8.   The Directors reiterated its position that the Association proposals
               enumerated above are non-mandatory subjects of bargaining at subse-
               quent bargaining sessions, including several sessions conducted in
               the presence of a mediator, and at a fact finding hearing held
               October 10, 1978.  The Association kept its allegedly non-mandatory
               proposals on the bargaining table at least through the October
               10th fact finding hearing.
         
          9.   On January 27, 1979, an interest arbitration panel heard the parties'
               positions on the areas of dispute.  The arbitration award issued on
               April 27, 1979.  Among the provisions included in the parties' con-
               tract by the arbitration panel were clauses dealing with Teacher
               Rights, School Calendar, Teaching Hours and Teaching Load, and
               Teacher Evaluation.  Neither the Directors nor the Association
               appealed this arbitration award.
         
          10.  On August 30, 1978, Acting Superintendent C. L. Prentiss denied a
               personal leave request for September 27, 1978 by Cynthia Theriault,
               a member of the Association's bargaining team.  The stated reasons
               for denial of the request were that since negotiations were not com-
               plete the Principal had no way of knowing whether there would be a
               new contract containing a personal leave bank, and that even if a
               personal leave bank was included in a new contract, the request
               would be denied because it does not fit the intent of the personal
               leave bank.
         
          11.  On November 1 and 8, 1978, Superintendent Ronald Smith denied a
               personal leave request by Richard Nile, who wished to pick his
               wife up at Logan Airport in Boston.  Nile is vice-President of the
               Association and a member of the Association's bargaining team.
               Among the stated reasons for the denial was that there was no
               contract in effect at the time.
         
          12.  On November 3, 1978, Superintendent Smith denied a personal leave
               request by Richard Plante, President of the Association and a mem-
               ber of the Association's bargaining team.  The reasons for the
               denial were that there was no contract in effect, and that there
               was no mutuality of interest which would justify payment of a day's
               salary to a teacher who was not performing his job duties.  A per-
               sonal leave request by Plante was granted by the superintendent on
               October 11, 1978.  

          13.  At least 20 additional personal leave requests were submitted by
               teachers during the period from August 28, 1978 to November 15,
               1978.  Fifteen of these requests were granted, and the remaining
               five were denied.  These five requests were denied for the same
               reasons stated in the denials of the bargaining team members'
               requests.

                                     -4-

          14.  At the beginning of the school year on August 28, 1978,
               each returning teacher was not advanced one step on the
               experience scale in the salary schedule contained in the
               1977-78 contract.  Instead, the returning teachers were
               paid at the same salary step which they occupied during the
               1977-78 school year.  Teachers who were newly hired by the
               Directors for the 1978-79 school year were paid in accord-
               ance with the experience steps set forth in the 1977-78
               salary schedule.
         
          15.  At the commencement of the 1978-79 school year, each teacher
               received a written statement containing the total of the
               teacher's accumulated sick leave days.  This total did not
               include 12 days for the 1978-79 sick leave school year
               Article XVIII(A) of the parties' 1977-78 agreement provides
               that each teacher is entitled to 12 sick leave days per
               year, and that the 12 days are to be credited at the commence-
               ment of the school year.  Article XVIII(B) provides that each
               teacher will be provided at the beginning of the school year
               a written statement indicating the total number of days of
               sick leave credit.
         
          16.  By letter dated November 2, 1978, John Marvin, the Executive
               Director of the Maine Teachers Association ("MTA") notified
               Harlan Libby, the Chairman of the M.S.A.D. No. 43 Board of
               Directors, that Libby's membership in the MTA would be rejected
               unless Libby removed himself as a member of the Directors'
               negotiating team.
         
         17.   At all times material herein, Libby was a member of the Telstar
               Educators Association, which is an affiliate of the MTA.  The
               M.S.A.D. No. 43 Teachers Association also is affiliated with the
               MTA.  The MTA is a statewide organization affiliated with the
               National Education Association ("NEA").  Libby also was a member
               of the NEA at all material times.  NEA bylaws provide in part
               that:  "An individual who is a member of a negotiating team
               representing a school board . . . shall be denied membership."
               The MTA in 1978 notified several other of its members besides
               Libby who were on school board negotiating teams that the
               members were violating NEA bylaws.
         
           18.  Libby was elected to the M.S.A.D. No. 43 Board of Directors in
                1975 for a term which expired in 1978, and was reelected to the
                Board of Directors in 1978 for a three-year term.  Libby was
                elected Chairman of the Directors in 1978 for a one-year term.
                By virtue of being Chairman of the Directors, Libby was an ex-
                officio member of the Directors' bargaining committee.  As
                Chairman of the Directors, Libby attended most if not all of the
                1978 bargaining sessions between the Directors and the Association.
         
          19.   On November 28, 1978 the Directors voted to require that teachers
                absent from classes on November 28th due to illness provide a
                medical report from a licensed physician as evidence of illness.
                Approximately 28 or 50% of the teachers employed by the Directors
                phoned in sick on November 28, 1978.  This represented an unusually
                high level of teacher absences, which was not matched by reports
                of illness among the student body.
         
          20.   By letter dated November 29, 1978, the Directors notified each
                teacher absent on November 28th of the requirement that a medical
                report be provided.  The letter states that salary for November
                28th would not be paid until the report was provided.  Prior to
                November 28th, the Directors had not required that a medical report
                be submitted to prove sickness when a teacher missed a day due to
                illness.  The requirement adopted on November 28th was adopted in
                response to the professed illness of a large number of teachers on
                November 28th.  The Directors' motion adopting the requirement
                provides that medical reports will also be required if a similar
                percentage of teachers report that they are too ill to work at
                some future date.
                                     -5-


                                  DECISION          
         
     The Directors and the Association each charge that the other committed
various unfair labor practices during the parties' stormy 1978 bargaining
relationship.  After carefully examining the record, we find that each party
engaged in practices prohibited by the Municipal Public Employees Labor Relations
Act, 26 M.R.S.A. Section 961, et seq., ("Act").  We will order remedies necessary
to effectuate the policies of the Act.         
         
                             I.  Case No. 79-36         
         
     The Directors charge that the Association violated 26 M.R.S.A. Section 964(2)
(B) by insisting to impasse that the Directors negotiate over certain non-mandatory
subjects of bargaining.  In its affirmative defense, the Association alleges that
the Directors violated 26 M.R.S.A. Section 964(1)(E) by refusing to bargain about
mandatory subjects of bargaining.
         
     The pertinent statutory provision is 26 M.R.S.A. Section 965(1)(C), which pro-
vides in part that the public employer and the bargaining agent are mutually obli-
gated:
         
         "To confer and negotiate in good faith with respect to wages,
          hours, working conditions . . . except that public employers
          of teachers shall meet and consult but not negotiate with
          respect to educational policies . . . educational policies
          shall not include wages, hours, working conditions. . ."
         
The issue, then, is whether the Association proposals in question involve matters
of "educational policy" about which the Directors must meet and consult but not nego-
tiate, or "wages, hours and working conditions," which are mandatory subjects of
bargaining.
         
     We find that certain of the Association's proposals are mandatory, while others
involve educational policy.  The Association violated Section 964(2)(B) by insisting
to fact finding that educational policy be bargained, while the Directors violated
Section 964(1)(E) by refusing to negotiate over the mandatory subjects.
         
     A.  The Teacher Rights Proposal.  The Association's "just cause" proposal is a
mandatory subject of bargaining.  The proposal provides:
         
          No teacher shall be disciplined, or reduced in rank or compensation,
          without just cause.  No tenure teacher's contract will  be termina-
          ted without just cause.  This shall not apply to the complaint of a
          non-tenure teacher which arises by reason of that teacher not being
          reemployed.
         
     In Brunswick School Board v. Brunswick Teachers Association, P.E.L.R.B. No.
75-19 (1976) at pp. 5-6, appeal docketed, No.CV 76-42 (Kennebec County Super. Ct.
Feb. 12, 1976), we held that a "just cause" proposal involved "a working condition
and [is] a mandatory subject for collective bargaining."  Our holding in Brunswick
is in accord with many cases holding that the subject of just cause for discipline
or discharge of public employees is a mandatory subject of bargaining.  See, e.g.,
City of Beloit v. Wisconsin Employment Relations Commission, 73 Wis. 2d 43, 242 N.W.,
2d 231, 238 (1976); Springfield Education Association v. Springfield School District
No. 19, 24 Or. App. 751, 547 P.2d 647, 650 (Ore. Ct. App. 1976); Danville Board of
School Directors v. Fifield, 132 Vt. 271, 315 A.2d 473, 474-475 (1974); Board of

                                     -6-

Education of Huntington v. Associated Teachers of Huntington, Inc., 30 N.Y.2d
122, 331 N.Y.S.2d 17, 282 N.E.2d 109, 113 (1972).
         
     Our holding also is consistent with Justice Wernick's analysis of 26 M.R.S.A.
Section 965(1)(C) in City of Biddeford v. Biddeford Teachers Association, 304 A.2d
387 (Me. 1973).  After noting that the terms "educational policies" and "working
conditions" "may be reasonably conceived as categories defining areas with essen-
tial purity at the extremities but with intermediate zones of substantial inter-
mixture," Justice Wernick concluded that the legislature's "double emphasis" in
Section 965(1)(C) on the concept of "working conditions" is designed to prevent
emasculation of teacher working conditions as a mandatory subject of bargaining.
304 A.2d at 418-420.
         
     The double emphasis means, Justice Wernick concluded, that the legislature in-
tended teacher working conditions to be bilaterally negotiable even through a par-
ticular working condition might "tend to encroach upon the 'managerial' organiza-
tion, supervision, direction or distribution of the working personnel."  304 A.2d
at 419.  Justice Wernick accordingly found that matters related to teacher working
conditions are prima fade eligible for collective bargaining, and that such prima
fade eligibility can be overridden only if the quantitative number and/or qualita-
tive importance of functions "generally cognizable as 'managerial' and 'policy
making'. . . are found significantly substantial."  304 A.2d at 420.
         
     The standard by which a teacher may be disciplined, reduced in rank or compen-
sation, or dismissed is fundamentally related to teacher working conditions.  This
standard can be the determinative factor governing a teacher's rank, level of salary,
or even whether the teacher retains his or her employment.  The "just cause" pro-
posal in question thus could have a direct, significant effect on the teachers'
working conditions.  The proposal accordingly is prima facie eligible for collective
bargaining under Justice Wernick's analysis.  The Directors have not cited, nor do we
perceive, sufficiently substantial managerial functions which would override this
prima facie eligibility.  We accordingly conclude that the just cause proposal is
well within the statutorily defined scope of collective bargaining.
         
     The Directors urge, however, that the topic of cause for discharge of a non-
probationary teacher has been removed as a mandatory subject of bargaining by the
1976 amendment of 20 M.R.S.A. Section 161(5).  Section 161(5) was amended over the
Governor's veto in a special session of the legislature by Public Laws of Maine, 1976,
c.723, to include the following provision:
         
         "Just cause for dismissal or non-renewal may be a negotiable
          item in accordance with the procedures set forth in Title
          26, c.9-A, for teachers who have served beyond the proba-
          tionary period."
         
     According to the Directors, the intent of the legislature in amending Section
161(5) and the language of the amendment make the subject of just cause dismissal
and non-renewal of teachers on a continuing contract a permissive, non-mandatory
subject of bargaining.  We disagree.

     We conclude from our study of the complete legislative history underlying the
amendment of Section 161(5) that the legislative intent is not directed at all to

                                     -7-

the question whether just cause is mandatory or permissive.  The legislative
history plainly shows that the legislature's intent in amending Section 161(5)
was to overturn the holding in Superintending School Committee of Winslow v.
Winslow Education Association, No. 2024-73 (Kennebec County Super. Ct. Sept. 15,
1975) that superintendents have no power to bargain over just cause for dismissal.[fn]1
See [1976] Me. Leg. Rec. 579-580 (remarks of Sen. Katz); 635 (remarks of Rep.
Mitchell).  The amendment consequently was made in Section 161 of Title 20, which
does not involve labor relations matters but which instead sets forth the powers
of superintendents.
         
     The legislative history thus shows that the legislative intent in amending
Section 161(5) was to provide that bargaining over just cause is within a superin-
tendent's power, not to mandate that just cause is either a mandatory or permis-
sive subject of bargaining.  The legislature simply was not concerned with whether
the topic of just cause is a mandatory or a permissive subject.[fn]2  Rather, the purpose
of the amendment of Section 161(5) was to make it clear, in light of the Winslow
decision, that bargaining about just cause is within the power of superintendents.
         
     In providing that superintendents have the power to bargain over just cause,
the legislature expressly recognized in the amendment the existence of a detailed
labor relations statute which provides the means for determining whether just cause
is a mandatory or permissive subject.  As previously discussed, under that statute
and applicable case law, just cause plainly is a mandatory subject of bargaining.
       
     The Directors' argument regarding the use of the word "may" in the amendment
also fails for the reasons discussed above.  In addition, it is unreasonable to
expect that the legislature would have used the words "shall" or "must" instead of
"may" in the amendment.  Had "shall" or "must" been used, then parties might be
forced to bargain just cause even if both parties agreed that they do not wish to do
so.  The legislature would not require such a patently absurd result.
___________________         
         
     1 The Superior Court was upheld by the Law Court in Superintending School Committee
of Winslow v. Winslow Education Association, 363 A.2d 229 (Me. 1976).  The Law Court
decided the case on the basis of the law existing prior to the 1976 amendment of
Section 161(5), noting that "The legislative history . . . indicates that the
[amendment] constitutes a change in the law rather than a clarification of already
existing law."  363 A.2d at 231, n.2.  The Court also stated ". . . we need not
reach the issue of whether the [just cause] clause is an educational policy decision
exempt from collective bargaining by express provision of 26 M.R.S.A. Section 965(1)
(C)."  363 A.2d at 231.

     2 Even if it could somehow be found that the legislature in amending Section 161 (5)
did intend to provide that just cause is either a mandatory or permissive subject, the
legislative history shows the dominant intent was that just cause be a mandatory sub-
ject.  While the legislative record contains the usual number of ambiguous statements,
the legislators who were knowledgeable about the bill providing the amendment, both
proponents and opponents, believed that under the amendment just cause would be a
mandatory subject.  See [1976) Me. Leg. Rec. 609 (remarks of Sen. Trotsky); 610, 932
(remarks of Sen. Speers); 635 (remarks of Rep. Mitchell); 639 (remarks of Rep. Lnych).
Thus, even if the legislature did intend to mandate the bargainability of just cause,
the result we reach would be the same:  just cause is a mandatory subject of bargaining.

                                     -8-

     Furthermore, while the word "may" in a statute generally indicates a non-
mandatory intention, legislative intent controls.  Boynton v. Adams, 331 A.2d 370,
372 (Me. 1975).  As previously discussed, the legislature did not intend by the
amendment to provide that just cause is either a mandatory or permissive subject.
Even if it could be said that the legislature was possessed with such an intention,
the intent was that just cause remain a mandatory subject.  In either case, the
legislative intent overrides any inference to be drawn from use of the word "may."
         
     In sum, the Directors have not presented any persuasive reasons why our hold-
ing in Brunswick School Board should not be re-affirmed.  We re-affirm our holding
and conclude that contract proposals providing for just cause for dismissal or
non-renewal of non-probationary teachers, or for just cause for discipline or re-
duction in rank or compensation of any teacher who is a public employee, are man-
datory subjects of bargaining.  The just cause proposal in question provides that:
         
     1.  No teacher shall be disciplined or reduced in rank or compensation without
just cause, and
         
     2.  No tenure teacher's contract will be terminated without just cause.  This
shall not apply to a non-tenure teacher.
         
This proposal is a mandatory subject of bargaining.
         
     We have held in many cases, consistent with the principles enunciated in N.L.R.B.
v. Katz, 369 U.S. 736 (1962), that an employer's refusal to bargain about a mandatory
subject constitutes a per se violation of the duty to bargain found in Section 964
(1)(E) of the Act.  See, e.g., Lake Teachers Association v. Mount Vernon School Com-
mitte, M.L.R.B.  No. 78-15 (1978).  The Directors refused to bargain about the just
cause provision throughout the 1978 negotiations, and consequently violated Section
964(1)(E).  We will order an appropriate remedy.
         
     B.  The School Calendar proposal.  This proposal involves educational policy
matters as well as a non-negotiable matter.  Paragraph B. and C. of the proposal
propose the following issues for bargaining:
         
         1. The employment year for teachers (with certain specified exceptions)
shall begin no earlier than one day prior to the first scheduled day of instruction.
         
         2. The employment year for teachers (with certain specified exceptions)
shall not exceed 180 days.
         
         3. There will be a minimum of 175 days of pupil-in-attendance days.
         
         4. There will be a minimum of 3 teacher workshop days.
         
         5. The combination of pupil-in-attendance and teacher workshop days will
equal 180 days.
         
         6. Classes will begin on August 30, 1977 and school will close on June 8,
1978.  The dates for and length of vacations during the school year are also speci-
fied.

                                     -9-

         7. Staff workshops will be held August 29, 1977 and June 9, 1978.
         
         8. Three storm days are built into the calendar.  Any storm days
not used will be deducted from the closing date of June 9, 1978.
         
     Some of these issues involve matters of educational policy, at least one
of the issues is governed by statute and thus is a non-negotiable subject, while
other of the issues may be mandatory subjects of bargaining.  The first problem we
confront, then, is how to determine the negotiability of a particular proposal when
the proposal presents a mixture of non-mandatory, non-negotiable and mandatory
subjects.
         
     The courts have held that, whenever possible, the question whether a particu-
lar proposal is mandatorily negotiable should be determined on a "topic" basis
rather than on the nuances of the actual individual proposal.  See, e.g., Chee-Craw
Teachers Association v. Unified School District No. 247, ___ Kan. ___ 593 P.2d 406,
412 (1979).  Other labor boards have held that a bargaining proposal which contains
both mandatory and non-mandatory aspects does not require bargaining when the pro-
posal is presented as a single entity.  See, e.g., Pearl River Teachers Association
v. Pearl River Union Free School District, N.Y. Public Employment Relations Board,
Case No. U-2914 (Oct  13, 1978).
         
     We believe that these holdings have considerable merit.  A non-mandatory subject
of bargaining is not transformed into a mandatory subject merely because it is in-
cluded in a single proposal which also contains mandatory subjects.  A party should
not be compelled to bargain over non-mandatory subjects simply because the proposal
in question contains mandatory aspects.  The burden should be on the proposing party,
when it wishes to negotiate a mandatory subject, to present its proposal concerning
the subject in a clear, forthright fashion, unencumbered by any non-mandatory clauses.
To hold otherwise would result in many cases in improperly requiring a party to
negotiate non-mandatory subjects, since it is a simple matter to "mix" mandatory and
non-mandatory subjects in a single proposal.  In addition, deciding negotiability
questions on a "topic" basis is a good deal simpler than attempting to grapple with
all of the individual nuances of a particular proposal.
         
     We accordingly decide that whenever possible, we will determine negotiability
questions on a "topic" basis, regardless of the nuances of the individual proposal.
As a general rule of law, a party will not violate its statutory duty to bargain
by refusing to bargain over a single proposal which contains both mandatory and
non-mandatory subjects.
         
     It is settled that the topic of school calendars involves educational policy:
         
       ". . . the commencement and termination of the school year and the
        scheduling and length of intermediate vacations during the school
        year, at least insofar as students and teachers are congruently involved,
        must be held matters of 'educational policies' bearing too substantially
        upon too many and important non-teacher interests to be settled by col-
        lective bargaining . . ."
         
City of Biddeford, supra, 304 A.2d at 421; see also Brunswick School Board, supra, at 7.

     Those aspects of the Association's proposal dealing with the maximum length
of the employment year, the maximum length of the school year, and the dates upon

                                    -10-

which classes will commence and terminate and the dates for vacations, contained
in both Paragraphs B and C of the proposal, thus plainly are matters of  educa-
tional policy.  In addition, the aspect of the proposal providing for a minimum of
175 days of pupil-in-attendance days is governed by statute.  20 M.R.S.A. Section
1281(3).  We have held that matters governed by statute are non-negotiable.  Bruns-
wick School Board, supra, at 8.  The Directors thus could lawfully refuse to bargain
about the minimum number of pupil-in-attendence days.
         
     Those aspects of the Association's proposal concerning the date for commence-
ment of the employment year and teacher  workshops relate to the attendance of tea-
chers at school at times when students are not in attendance, and accordingly are
likely to be mandatory subjects of bargaining.  City of Biddeford, supra, 304
A.2d at 421.  As previously discussed, however, the fact that the two paragraphs
In question may contain mandatory aspects does not obligate the Directors to nego-
tiate the paragraphs, since the non-mandatory aspects of the paragraphs are in-
separable from the mandatory aspects.
         
     It was incumbent on the Association to present separate paragraphs dealing ex-
clusively with the commencement date for employment and teacher workshops, rather
than including these topics in the same paragraphs with educational policy and non-
negotiable matters.  Since the educational policy and non-negotiable topics are In
cluded in the same paragraphs with what may be mandatory topics, the Directors
lawfully refused to bargain about the School Calendar proposal.
         
     The Association argues it should not be held in violation of the Act for insist-
ing to fact-finding that its School Calendar proposal be negotiated.  First, the
Association contends it was not really proposing that the Directors negotiate the
issue of school calendar, but rather that it intended only that the Directors meet
and consult over the issue.
         
     If such was the intention of the Association, then it certainly is well-disguised
in the Association's proposal.  As evidence of this intent, the Association points to
the proposal's Paragraph A, which is not contested by the Directors.  Paragraph A
provides that "The Association may make suggestions regarding the school calendar
prior to its adoption by the Board."  We do not see that this Paragraph modifies
Paragraphs B and C of the proposal, however.
         
     If the Association merely intended that the Directors meet and consult over the
school calendar, then there was no need to present the detailed proposals contained in
Paragraphs B and C.  The Directors were already obligated to meet and consult over
the school calendar by 26 M.R.S.A. Section 965(1)(C).
         
     Finally, as correctly argued by the Directors, agreement by the Directors on
the proposal would have bound the Directors to observe the requirements and dates set
forth in the proposal.  There simply is no language in the proposal to indicate that
Paragraphs B and C only are intended to recite the highlights of the calendar once it
has been developed by the Directors.  Since the burden of showing the intent of a
proposal is on the drafter, it was incumbent on the Association to include a plain

                                    -11-

statement of intent in its proposal, or otherwise provide clear evidence of intent.
This the Association has failed to do.  We accordingly find meritless the Associa-
tion argument that it only intended the Directors meet and consult over the proposal.
         
     Second, the Association argues that the issue whether it violated the Act has
been mooted because the parties have an agreement on a School Calendar provision.
The record shows that among the binding provisions of the April 27, 1979 arbitra-
tion award was one inserting the School Calendar language of the 1977-78 agreement
in the 1979-80 agreement.  Our policy, however, is that the reaching of an agreement
will not moot a pending charge of a failure to bargain.  See, e.g., Teamsters Local
48 v. City of Bangor, M.L.R.B. No. 79-29 (Interim Decision and Order) (1979);
M.S.A.D.  No. 43 Teachers Association v. M.S.A.D. No. 43 Board of Directors, M.L.R.B.
No. 79-42 (1979).
         
     The rationale for this policy is that the Board does not oversee the settlement of
private disputes, but rather is entrusted with the responsibility of protecting public
rights under the Act.  These rights are not protected, and the effects of any unfair
labor practices expunged, merely because of a private settlement of the dispute by the
parties.  Moreover, the public and the charging party are entitled to the protection
of future rights by the requirements of continued compliance which a cease and de-
sist order provides.  We consequently cannot agree that the fact the parties have
an agreement on a School Calendar provision renders moot the Director's charge that
the Association violated Section 964(2)(B) of the Act.
         
     Finally, the Association argues that we cannot find a violation of Section
964(2)(B) without making a specific finding that the Association bargained in bad
faith with regard to the School Calendar proposal.  This argument reflects a sub-
stantial miscomprehension of the existing state of the law.
         
     The law for years has been that ". . . it is lawful to insist upon matters
within the scope of mandatory bargaining and unlawful to insist upon matters without
. . . ," without regard to the subjective good or bad faith of the insisting party.
N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958).  The
rationale underlying this venerable labor law principle is that insistence upon
bargaining non-mandatory subjects ". . . is, in substance, a refusal to bargain
about the subjects that are within the scope of mandatory bargaining."  Id.  This
principle has been followed by countless number of federal and state courts and
labor relations boards, including the Maine Labor Relations Board.  See, e.g.
cases cited in Teamsters Local 48 v. Town of Falmouth, Case Nos. 79-10 and 79-18
(1979).
         
     Thus, when we find that a party violates Section 964(2)(B) by insisting to
impasse that a non-mandatory subject be negotiated, we are not finding that the in-
sisting party bargained in bad faith.  Rather, we are finding, consistent with the
principle enunciated in Borg-Warner, that the party committed a per se violation
of the duty to bargain, a determination which is not predicated upon a finding of
bad faith and indeed which is entirely independent of any bad faith finding.  See,
e.g., N.L.R.B. v. Katz, supra, 369 U.S. at 742-743.

     In short, whether or not a party proposed and bargained over a non-mandatory
subject in good faith is irrelevant to the finding that insistance to impasse on

                                    -12-

bargaining the subject is a per se violation of the duty to bargain found in
Section 964(2)(B).  The only issues in such a per se case are (1) does the pro-
posal in question involve a mandatory or non-mandatory subject, and (2) if the
proposal involves a non-mandatory subject, did the party insist to impasse on
bargaining about the proposal?
         
     The Association insisted to impasse (i.e., to fact-finding) on bargaining
about its non-mandatory School Calendar proposal.  This insistance constitutes a
per se violation of 26 M.R.S.A. Section 964(2)(B).  We will order an appropriate
remedy.
         
     c.  The Teaching Hours and Teaching Load Proposal.  This proposal also con-
tains both educational policy and mandatory aspects.  Unlike the School Calendar
proposal, however, the educational policy and mandatory aspects of this proposal
are not "mixed" together in the same paragraphs.  Instead, the mandatory subjects
are contained by themselves in separate paragraphs within the proposal.  The
Directors were obligated to bargain over the mandatory subjects which were presented
as separate entities.
         
     The proposal presents the following issues for bargaining:
         
     1.  Classroom teachers shall have a daily preparation period of a specified
length, averaged over the week.  (Paragraph B of the proposal).
         
     2.  Each teacher shall have a duty-free lunch period of 30 minutes.  (Para-
graph H of the proposal).
         
     3.  The Directors will hire aides to supervise the lunchrooms and the play-
grounds during lunch and recess.  (Paragraphs I and J of the proposal).
         
     The proposal regarding the daily preparation period involves matters of educa-
tional policy.  The Court in City of Biddeford held that the length of the school
day in terms of the number of hours the teacher will be required to teach or be in
attendance at school is a matter of educational policy.  304 A.2d at 420-421.
Among the "foundational educational value judgments" identified by the Court as
related to the length of a teacher's working day are those involving the use of new
educational techniques such as electronic aids, open classrooms, team teaching
programs, and subject matter modifications.  The Court concluded:
         
       "Thus, the length of the teacher's working day is closely and
        heavily interwoven with judgments bearing upon the welfare of the
        students, -- as reflected in the ultimate quality of their educa-
        tion and the extent to which it may be improved or weakened by use
        of various types of substitutes, technological or otherwise, for
        the living presence and active participation of teachers."
         
304 A.2d at 421.  These value judgments, according to the Court, override the prima
facie eligibility for bargaining of subjects involving the length of the working
day.
         
     It is likely in most cases that proposals regarding daily preparation periods
would have some effect on the length of the working day.  See Caribou School Depart-
ment v. Caribou Teachers Association, M.L.R.B. No. 76-15 at 3 (1976), appeal docketed,

                                    -13-

No. CV 77-88 (Kennebec County Super. Ct. Feb. 2, 1977).  Even when the proposal
would have no effect on the length of the day, the same educational value judg-
ments dictate that the proposal involves educational policy.  Proposals for daily
preparation periods of a specified length would eventuate an exploration into
methods by which a teacher's actual presence or participation is rendered unnec-
cessary - i.e., electronic aids, open classrooms, team teaching programs, etc.
These value judgments have, as the Court stated, a direct bearing on the welfare
of the students and involve issues of educational policy.
         
     A proposal for daily preparation periods also involves significant educa-
tional policies in another way.  Specifying that each teacher must be guaranteed
a certain preparation period each day infringes on the ability of the school
administration to schedule classes and student activities.  The practical effect
of such specification is to require the administration to schedule students in
the same time modules as the negotiated break times, instead of vice versa.  The
ability of the administration to schedule the school day in accordance with
student educational needs rather than contractual language involves foundational
educational judgments which remove issues of preparation periods from the realm of
mandatory collective bargaining.  The Association violated Section 964(2)(B) of
the Act by insisting to fact-finding that its daily preparation period proposals
be negotiated.
         
     Different considerations are involved in the Association's proposal for a
duty-free lunch period of 30 minutes.  Whether the teachers are to have a duty-free
lunch period of a specified length is a mandatory subject of bargaining.  When the
duty-tree lunch period is to occur during the school day is a matter of educational
policy.
         
     Whether a teacher is to have a duty-free lunch period of a certain length is
fundamentally related to teacher working conditions.  The ability to eat a meal
and rest during the work day has an important bearing on the health and welfare
of the teacher.  Proposals for duty-free lunch periods of a certain length thus
are prima facie eligible for collective bargaining.
       
     Unlike proposals for daily preparation periods, a proposal for a duty-free
lunch period involves greater teacher concerns than student interests.  A guaranteed
duty-free lunch period should not involve significant use of new educational
techniques or require substantial readjustment of the school day.  Requiring school
administrations to bargain over whether the teachers are to have duty-free lunch
periods of a specified length should not significantly encroach upon the administra-
tion's managerial and policy-making functions.
         
     Since administrations have a substantial managerial interest in maintaining
flexibility to arrange the school day, we believe that questions as to when the duty
free lunch period should occur involve educational policy.  As for proposals dealing
with whether there will be a duty-free lunch period, however, we do not see involved
a magnitude of educational value judgments comparable to those involved with proposals

                                    -14-

for daily preparation periods, particularly when the teachers' interest in
having a period for eating and resting is so great.  We accordingly conclude
that the Association's proposal for a duty-free lunch period of 30 minutes is
a mandatory subject of bargaining.
         
     The Association's proposal that aides be hired to supervise the lunch-
rooms and playgrounds during lunch and recess also is a mandatory subject of
bargaining:
         
          ". . . the issue of the use of teacher aides to monitor play
           grounds, supervise lunch periods, load and unload buses and other
           non-teaching types of activities must be held a subject proper
           for collective bargaining . . ."
         
City of Biddeford, supra, 304 A.2d at 422.
         
     The Directors misread our holding in Bradford Ingerson v. Millinocket School
Committee, M.L.R.B. No. 77-39 (1977) by finding a broad ruling that the supervi-
sion of students is educational policy.  We held in Ingerson that "pre-school and
noon playground duties relating to the attendance of teachers at school at times
when students will be in attendence are matters of educational policy."  Id., at
4 (emphasis in original).  In contrast, the Association's proposal has nothing to
do with the attendance of teachers at school when the students are in attendance,
but rather involves the hirinq of aides to supervise lunchrooms and playgrounds.
The proposal plainly is a mandatory subject of bargaining under City of Biddeford.
         
     The mandatory subjects in the Teaching Hour and Load proposal are contained
by themselves in separate paragraphs (Paragraphs H, I and J).  Since these manda-
tory matters are not intermingled in the same paragraphs with subjects involving
educational policy, the Directors were not justified in refusing to bargain about
duty free lunch periods or the hiring of aides.  When a proposal contains a manda-
tory subject as a separate entity, a party is obligated to bargain the topic regard-
less whether the proposal also contains non-mandatory subjects in other paragraphs.
The mandatory subject is to be treated as a proposal in itself where it is not
contained in the same paragraph with a non-mandatory subject.  The Directors
violated 26 M.R.S.A. Section 964(1)(E) when they refused to bargain about the
proposals for a duty-free lunch period of 30 minutes and for the hiring of aides
to supervise lunchrooms and playgrounds.
         
     D.  The Teacher Evaluation proposal.  As with the School Calendar proposal,
this proposal contains educational policy aspects which are inseparable from topics
which may be mandatory subjects.  Since the educational policy matters are insepar-
able, the Directors were not obligated to bargain over the proposal.
         
     The proposal consists of two paragraphs.[fn]3  Paragraph 2b provides in essence:
___________________         
         
     3 The Association argues on brief about a third paragraph in its Teacher Evaluation
proposal, supposedly dealing with the Directors' use of one-way mirrors to observe
teachers in the classroom.  There also was brief testimony at the hearing about a
proposal concerning one-way mirrors.  Neither the Association nor the Directors
offered such a proposal for admission into the record, however.  We are unwilling to
rule on the negotiability of a proposal without having the proposal before us in
writing.

                                    -15-

     1.  At the beginning of the school year each teacher will receive a copy
of the evaluation criteria and form.
         
     2.  The form and criteria shall be jointly developed and approved by the
Administration and the Association.
Paragraph 3b provides:
         
     3.  A written evaluation form shall be given to the teacher within five
working days of the evaluator's visit.
         
     4.  The evaluation form shall in narrative form cite positive instructional
values and specific negative areas.
         
     5.  For each negative area a method of improvement will be recommended.
         
     The criteria and standards by which a teacher is to be evaluated is a permis-
sive, non-mandatory subject of bargaining in light of 5 M.R.S.A. Section 1006(3).
Saco-Valley Teachers Association v. MSAD #6 Board of Directors, M.L.R.B. No. 79-56
at 4 (1979).  The first paragraph of the Teacher Evaluation proposal provides that
the evaluation criteria shall be jointly developed by the Administration and the
Association.  Since this aspect of the paragraph is a non-mandatory subject of
bargaining, the Directors lawfully refused to bargain about the paragraph.  The
fact that the paragraph also may propose a mandatory subject - that the teachers
receive a copy of the criteria and form at the beginning of the year - is irrele-
vant since that proposal is contained in the same paragraph with the non-mandatory
proposal.
         
     The form and frequency of an evaluation program also are non-mandatory subjects
of bargaining.  Caribou School Department, supra, at 4.  The second paragraph of
the proposal provides that the evaluation form shall in narrative form cite positive
educational values and specific negative areas.  This aspect of the proposal would
to large degree dictate the form and content of the evaluation form, and thus is a
non-mandatory subject of bargaining about which the Directors could properly re-
fuse to negotiate.  Again, the fact that the paragraph may also contain mandatory
aspects does not save the paragraph, since the non-mandatory and mandatory aspects
are inseparable.
         
     We conclude that the Association violated 26 M.R.S.A. Section 964(2)(B) by in-
sisting to fact-finding that its non-mandatory Teacher Evaluation proposals be ne-
gotiated.
         
         
                             II.  Case No. 79-39
         
     The Association charges that the Directors committed various violations of
the Act by:
         
     A.  Paying at the commencement of the 1978-79 school year newly hired teachers
in accordance with the salary step schedule in the 1977-78 agreement, while not
paying returning teachers for an additional step on the schedue.

     B.  Selectively denying the personal leave requests of the members of the
Association's bargaining team.

                                    -16-

     C.  Failing to carry over the number of accumulated sick leave days
specified in the 1977-78 agreement for the 1978-79 school year.
         
     The Directors deny that any of its actions constitute violations of the Act.
We find violations based on the facts outlined in Paragraphs A and C above.
         
         
     A. The Salary Step Issue.  The record shows that newly hired teachers who
commenced their employment with the 1978-79 school year were paid in accordance
with the experience steps set forth in Article X of the 1977-78 agreement.  Re-
turning teachers, who had of course gained an additional year's experience during
the previous school year, were not advanced one experience step on the salary
schedule, but were paid at the salary step which they occupied during the 1977-78
school year.  The Association urges that this payment of a higher salary to newly
hired teachers who had the same experience as some of the returning teachers con-
stitutes a violation of the Act.

     We agree that the Directors violated 26 M.R.S.A. Section 964(1)(A) by paying
higher salaries to newly hired teachers than to returning teachers who had the
same experience.  The Directors of course acted properly in paying the returning
teachers at the same step which the teachers occupied during the 1977-78 school
year.  In Easton Teachers Association v. Easton School Committee, M.L.R.B. No.
79-14 at 7 (1979), we held that during the interim period between expiration of a
contract and execution of a successor contract, "the status quo should be main-
taned as if the existing conditions were frozen rather than to give effect to a
built-in wage escalator."  In the present case the 1977-78 agreement expired on
September 1, 1978, and a successor agreement had not been executed by the commence-
ment of the 1978-79 school year.  However, the Directors ran afoul of the Act by
not paying the same salary to newly hired teachers as was paid to returning teachers
with the same experience.
      
     In Teamsters Local 48 v. Town of Oakland, M.L.R.B. No. 78-30 at 3 (1978), we
adopted the National Labor Relations Board's test for determining whether a viola-
tion of the prohibition against interference, restraint and coercion (found in
Section 964(1)(A) of the Act) has occurred:
         
       ". . . interference, restraint and coercion . . . does not turn on
        the employer's motive or whether the coercion succeeded or failed.
        The test is whether the employer engaged in conduct which, it may
        reasonably be said, tends to interfere with the free exercise of
        employee rights under the Act."
         
Cooper Thermometer Co., 154 N.L.R.B. 502, 503, n.2 (1965).
         
     Here the discrepancy in payment of salaries to teachers with the same experience,
i.e., paying newly hired teachers at a step higher than returning teachers, can
reasonably be said to have tended to interfere with the returning teachers' bargain-
ing rights guaranteed by Section 963 of the Act.  The returning teachers could
reasonably view the salary differential as a "message" that the Directors were
displeased at having to bargain with the teachers, or as an attempt to pressure the
teachers at the bargaining table.  The Directors should have paid the newly hired
teachers at the same rate paid to returning teachers.

                                    -17-

     We consequently conclude that the Directors violated Section 964(1)(A)
by creating the salary differential.  Our policy in cases where innocent
beneficiaries have been paid a higher salary than is lawful is not to require
that the beneficiaries refund the excess payments.  See Lake Teachers Association,supra, at 3.  Neither will we order that all returning teachers in the system be
retroactively paid for an additional step on the salary schedule for the 1978-79
school year.  Such an order would not be warranted since the question of the step
at which newly hired teachers should be paid in light of our Easton Teachers
Association decision was a novel one.  We will instead order that the Directors
cease and desist from paying different salaries to teachers with the same exper-
ience and the same level of education.  This is the remedy which will best effec-
tuate the policies of the Act.
         
     B.  The Alleged Selective Denial of Personal Leave.  On four occasions between
August 30 - November 8, 1978, the Directors' Superintendent and Acting Superintendent
denied personal leave requests submitted by members of the Association's bargaining
team.  In addition to these four requests, twenty more personal leave requests were
submitted by teachers during the period in question.  The Superintendents approved
fifteen of these requests, including a request by one of the bargaining team members,
and denied the remaining five requests for the same reasons that the bargaining team
members' requests were denied.  The Association contends that the selective denial
of the bargaining team members' requests violated 26 M.R.S.A. Section 964(l)(C).
     
     The Association has not carried its burden of providing that there was in fact
a selective denial of the bargaining team members' requests.  Of the 24 requests, nine
were denied, including four submitted by bargaining team members.  This statistical
backdrop does not suffice to prove a pattern of selective denial.  Moreover, there
is no showing of any unlawful employer motive or any interference with the adminis-
tration of the Association.
         
     The mere fact that the four requests were denied is of course not sufficient
to establish a violation of the Act.  The reasons given by the Superintendents for
denying the requests also do not establish a violation of the Act.  These same
reasons were also relied upon to deny the requests submitted by teachers who were
not members of the bargaining team.
         
     Having found the evidence inadequate to prove a pattern of selective denial,
we conclude that the Directors' lawfully denied the bargaining team members' per-
sonal leave requests.
         
     C.  The Accumulated Sick Leave Issue.  Article XVIII (A) of the parties'
1977-78 agreement provides:
         
        "Each teacher is entitled to twelve (12) days sick leave per year
         . . . the twelve (12) days for each school year is credited to
         each teacher after he begins the first day of teaching in that
         school year."
         
Article XVIII(B) of the agreement provides:
         
        "The [School] Board will provide a written statement to each
         teacher at the beginning of each school year indicating
         the total of sick leave credit."

                                    -18-
                                                                 
     At the beginning of the 1978-79 school year, the Directors, in accordance
with expired Article XVIII(B), provided each teacher with a written statement
indicating the total amount of the teacher's accumulated sick leave.  This
statement did not include twelve sick leave days for the 1978-79 school year,
however.  The Association contends that the failure to include the 1978-79
sick leave days in the statement violated Section 964(1)(E).
         
     We agree that the Directors violated the Act.  As previously noted, we
held in Easton Teachers Association that once a contract has expired, the status
quo must be maintained as if the existing terms and conditions of employment
were frozen.  Thus, we held in Easton that unilateral changes by the employer in
mandatory subjects of bargaining after the contract has expired constitute a
per se violation of Section 964(1)(E).  Sick leave is a mandatory subject of
bargaining.  Easton Teachers Association, supra, at 6.
         
     The Directors thus were required to continue at the commencement of the 1978-
79 school year the practice of crediting 12 sick leave days for the upcoming school
year, until such time as impasse on the sick leave issue was reached or a successor
agreement governing sick leave was executed.  If a larger or smaller number of sick
leave days was provided for in the successor contract, then the Directors could per-
missibly change each teacher's accumulated sick leave total to reflect the number
of negotiated sick leave days.  The Directors made a unilateral change in a working
condition by not crediting 12 days for the 1978-79 school year, in violation of
Section 964(1)(E).  N.L.R.B. v. Katz, supra, 369 U.S. at 743-747; Easton Teachers
Association, supra, at 6.
         
     The typical remedy for a violation of this nature would be to order the
Directors to credit each teacher employed during the 1978-79 school year with 12
sick leave days for that school year.  However, we note from the April 27, 1979
arbitration award  that the sick leave provision from the 1977-78 contract, in-
cluding the clause that provided for 12 days of sick leave per school year, was
included in the parties 1978-79 agreement.  No appeal was taken from the arbitra-
tion award, and the Directors are bound to credit 12 sick leave days for the
1978-79 school year.  Since our typical remedy would in effect be redundant, we
will merely order that the Directors cease and desist from unilaterally changing
the sick leave policy.
         
         
                            III.  Case No. 79-45
         
         
     The Association charges that the Directors unilaterally changed the teachers'
working conditions in violation of Section 964(1)(E) by voting on November 28, 1979
to require that teachers absent from classes on November 28th due to illness pro-
vide a medical report from a licensed physician as evidence of illness.  The Direc-
tors also voted to follow the same procedure if a similar percentage of teachers
as were ill on November 28th reported that they were too ill to work at some future
time.  The Directors urge that there has been no unilateral change in working con-
ditions.

                                    -19-

     The record shows that approximately 50% of the teachers employed by the
Directors called in sick on November 28, 1978.  In response to this
level of absenteeism, the Directors voted to require that medical reports be
submitted.  Prior to November 28, the Directors had not required that medical
reports be submitted to prove illness.
         
     The prohibition against unilateral changes in wages, hours, and working
conditions during a bargaining relationship is well-known.  N.L.R.B. v. Katz,
supra, 369 U.S. at 743-747, Lake Teachers Association, supra, at 2.  This pro-
hibition is not absolute, however.  In Maine State Employees Association v.
State of Maine, M.L.R.B. No. 78-23 at 4 (1978), aff'd sub nom. State of Maine V.
Maine Labor Relations Board, No. CV 78-484 (Kennebec County Super. Ct. Aug. 7,
1979), we held that unilateral changes in mandatory subjects of bargaining are
permissible in four very limited situations:
         
          "1) when a bona fide impasse has been reached between the
           negotiating parties, see  e.g., NLRB v. Intercoastal
           Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961);
           2) when important business exigencies require immediate
           managerial decision, see, e.g., Pasco County School Bd. v.
           Florida Public Employees Relations Comm., 96 LRRM 3347,
           3358-3359 (Fla. Dist. Ct. App.) (1977); 3) when the
           union has waived its right to bargain about the unilateral
           change, see, e.g., U.S. Lingerie Corp., 170 N.L.R.B. 750,
           751-752 (1968); and 4) when the unilateral change results
           from a traditional practice which existed prior to the com-
           mencement of negotiations, see, e.g., McCulloch Corp., 132
           N.L.R.B. 201, 213-214 (1961)."
         
     With regard to the business exigency situation, we said:
         
          "Mere business 'reasons' for the unilateral change are not
           sufficient to immunize the change.  We envision an 'exigency'
           as a sudden, out-of-the-ordinary event threatening serious
           harm and requiring immediate managerial action."
         
     In the present case, the fact that some 50% of the teachers failed to report
for work due to illness on November 28th plainly is the type of emergency situa-
tion which requires immediate managerial action and which legitimizes unilateral
changes in working conditions.  Whenever a significant percentage of the work-
force fails to report for work, management must be able to attempt immediately to
determine the reasons for the absenteeism and to take steps to alleviate the situa-
tion.  This the Directors attempted to do by requiring medical reports from a
licensed physician.  Any unilateral changes in working conditions which may have
occurred as a result of the Directors' action were permissible since approximately
half the workforce had reported in sick.  Since the Directors acted lawfully, we
will order that the Association's complaint in Case No. 79-45 be dismissed.
         
         
                             IV.  Case No. 79-47
         
     The Directors charge that the Association violated 26 M.R.S.A. Section 964
(2)(A) when the Executive Director of the Maine Teachers Association ("MTA"), by
letter dated November 2, 1978, notified the Chairman of the Directors that the         

                                    -20-

Chairman's membership in the MTA would be rejected unless the Chairman's position
on the Directors' negotiating team was changed.  The Association denies that it
attempted to interfere with the Directors' selection of their bargaining representa-
tives.
         
     Harlan Libby, Chairman of the Directors, was during the period in question a
member of the Telstar Educators Association, which is an affiliate of the MTA.
The M.S.A.D. No. 43 Teachers Association also is affiliated with the MTA.  The
MTA in turn is affiliated with the National Education Association ("NEA").  NEA
bylaws provide in part that "An individual who is a member of a negotiating team
representing a school board . . . shall be denied membership."  As Chairman of the
Directors, Libby was an ex-officio member of the Directors' bargaining team, and
did in fact attend most if not all of the 1978 bargaining sessions with the
Association.
         
     We cannot agree that the November 2nd letter to Libby rises to the level of an
effort to interfere with the Directors' bargaining team.  The policy stated in the
letter was not designed by the Association or the MTA solely to strike at Libby or
at the Directors' negotiators, but rather is contained in an NEA bylaw which is
applied on a nation-wide basis.  The policy was not selectively applied to Libby
by the MTA.  Other members of teacher associations who also were members of school
board bargaining teams were given the choice in 1978 of removing themselves from
employer bargaining teams or losing their membership in the MTA.
         
     Finally, application of the policy to Libby was entirely justified.  As a
member of the Telstar Educators Association, Libby was privy to MTA bargaining
strategy and tactics.  Serving on the Directors' bargaining team during negotia-
tions with the Association obviously created a substantial conflict of interest for
Libby, which the MTA was justified in attempting to resolve in accordance with NEA
bylaws.
         
     For all of these reasons, we think that the November 2nd letter of Libby
does not constitute an attempt to interfere with the Directors' bargaining team.
We will order that the Directors' complaint in Case No. 79-47 be dismissed.
         
         
                                V.  Remedies
         
     Since we have found that both parties to these cases have committed unfair
labor practices, we see no purpose in ordering either party to reimburse the other
for the costs associated with prosecuting the cases.  Similarly, there is no pur-
pose in ordering both parties to post notices of their violations.  We will instead
order both parties to cease and desist from their unfair labor practices.  This
remedy will in our opinion best effectuate the policies of the Act.  26 M.R.S.A.
Section 968(5)(C).
         
         
                                    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 Labor Relations Board by the provi-
sions of 26 M.R.S.A. Section 968, it is hereby ORDERED:

                                    -21-
         
         
     1.  That the M.S.A.D. No. 43 Teachers Association, and their agents
         and members, cease and desist from insisting to impasse that the
         M.S.A.D. No. 43 Board of Directors bargain about:
         
         a)  the maximum length of the employment year for teachers,
         
         b)  the dates upon which classes will commence and teminate
             and the dates for school vacations,
         
         c)  the minimum number of pupil-in-attendance days,
         
         d)  daily preparation periods for classroom teachers, and

         e)  the criteria and form to be utilized in the teacher
             evaluation program.
         
     2.  That the M.S.A.D. No. 43 Board of Directors, and their representatives
         and agents, cease and desist from refusing to bargain with the M.S.A.D.
         No. 43 Teachers Association about:
         
         a)  just cause for discipline or reduction in rank or compensation for
             teachers who are public employees, and just cause for dismissal or
             non-renewal of non-probationary teachers,
         
         b)  duty-free lunch periods of a specified length for teachers, and
         
         c)  the hiring of aides to supervise the lunchrooms and playgrounds
             during lunch and recess.
         
     3.  That the M.S.A.D. No. 43 Board of Directors, and their representatives
         and agents, cease and desist from:
         
         a)  paying teachers who have the same experience and the same level of
             education at different salary rates, and
         
         b)  unilaterally changing the sick leave policy applicable to teachers.
         
     4.  That the Association's complaint in Case No. 79-45 and the Directors'
         complaint in Case No. 79-47 are both DISMISSED.


Dated at Augusta, Maine this 24th day of August, 1979.
         
         
                                         MAINE LABOR RELATIONS BOARD
         
         
         
                                         /s/________________________      
                                         Donald W. Webber
                                         Alternate Chairman
         
         
         
                                         /s/________________________
                                         Paul D. Emery
                                         Employer Representative
         
         
         
                                         /s/________________________
                                         Michael Schoonjans 
                                         Employee Representative


                                    -22-





__________________________

New MLRB Search

STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                 Case No. 79-36
                                                 Issued:  March 18, 1981

__________________________         
                          )
M.S.A.D. NO. 43 BOARD OF  )
DIRECTORS,                )
                          )
            Complainant,  )
   v.                     )                DECISION AND ORDER ON REMAND
                          )
M.S.A.D. NO. 43 TEACHERS  )
ASSOCIATION,              )
                          )
            Respondent.   )
__________________________)
         
         
     This is a prohibited practices case, remanded to the Maine Labor Relations
Board on July 8, 1980 by order of the Kennebec County Superior Court in M.S.A.D.
No. 43 Teachers Association v. M.S.A.D. No. 43 Board of Directors, No. CV 79-541.
The Court instructed in its decision that we

          "make findings as to which aspects of the [School Calendar
           and Teacher Evaluation] proposals are mandatory subjects and
           which are non-mandatory subjects, regardless of whether they
           are in the same paragraph.  The Directors shall be found to
           have violated 26 M.R.S.A.  964(1)(E) by refusing to negotiate
           the mandatory subjects, whereas the Association shall be found
           to have violated 26 M.R.S.A.  964(2)(B) by insisting to im-
           passe that the non-mandatory subjects be negotiated."
                    
                                JURISDICTION
         
     The M.S.A.D. No. 43 Board of Directors (Directors) is a public employer as
defined in 26 M.R.S.A.  962(7).  The M.S.A.D. No. 43 Teachers Association
(Association) is the exclusive bargaining agent for the full-time certified
teachers employed by the Directors.  The jurisdiction of the Maine Labor Relations
Board to hear this case and render a decision and order lies in 26 M.R.S.A.
 968(5).

                                     -1-

                              FINDINGS OF FACT
         
     Upon review of the entire record, the Board finds:
         
     1.  On April 19, 1978, the Directors and the Association began negotiating
for a collective bargaining agreement to succeed an agreement due to expire on
August 31, 1978.  The parties exchanged their proposals for the successor agree-
ment at this initial bargaining session.
         
     2.  At a bargaining session on May 11, 1978, the Directors declined to bargain
about certain of the Association's proposals, including the School Calendar and
Teacher Evaluation proposals, on the ground that the proposals were non-mandatory
subjects of bargaining.  The Directors continued to refuse to negotiate these
proposals throughout the remaining negotiations, while the Association continued
to insist that the proposals be negotiated.  The parties took the proposals through
mediation, fact-finding, and interest arbitration, with many of the proposals being
settled by an arbitration award issued April 27, 1979.
         
     3.  The School Calendar proposal provides:
         
          "B.  The employment year for teachers, other than new personnel,
               those with an extended contract year, and others who may be
               required to attend pre-school orientation sessions, shall
               begin no earlier than one day prior to the first scheduled
               day of instruction and shall not exceed 180 days.  There
               will be a minimum of 175 days of pupil-in-attendance, and a
               minimum of 3 teacher workshop days.  The combination of the
               two will equal 180 days.

          "C.                 SCHOOL CALENDAR
                                  1977-78

                                       Pupil-in-    Teacher
                                       Attendance   Workshop    Total
           FIRST TERM
           Aug. 29, Monday   Staff Workshop            1
           Aug. 30, Tuesday  Classes Begin
           Sept. 5, Monday   Labor Day - No School
           Oct. 10, Monday   Columbus Day - No School
           Nov. 11, Friday   Veterans' Day -No School
           Nov. 24, Thursday Thanksgiving Day - No School
           Nov. 25, Friday   No School
           Dec. 22, Thursday Close for Christmas Recess
                                       __________  ________    ________
                                          78           1           79

                                     -2-


             SECOND TERM

             Jan. 2, Monday        Classes Begin
             Feb. 17, Friday       Close for February Recess

                                           __________  ________    ________
                                              35           0           35
         
             THIRD TERM

             Feb. 27, Monday       Classes Begin
             April 14, Friday      Close for Spring Recess
                                           __________  ________    ________
                                              35           0           35
         
             FOURTH TERM

             Apr. 24, Monday       Classes Begin
             May 29, Monday        Memorial Day - No School
             June 8, Thursday      School Closes
             June 9, Friday        Staff Workshop          1
                                           __________  ________    ________
                                              33           1           34
                                           __________  ________    ________
                           Totals            181           2          183
         
            "Three (3) storm days are built in the calendar.  Any storm days
             not used will be deducted from the closing date of June 9th."
                  
     4.  The Teacher Evaluation proposal states:
         
             "2.  b.  At the beginning of the school year each teacher
                      will receive a copy of the evaluation criteria and
                      form to be utilized.  The form and criteria shall
                      be jointly developed and approved by the Administra-
                      tion and Association.
         
             "3.  b.  A written evaluation form shall be given to the
                      teacher within five working days of the visitation
                      (by the evaluator).  In narrative form it will cite
                      the positive instructional values and the specific
                      negative areas needing improvement.  For each nega-
                      tive area a method of improvement will be recommended."
                                         
                                     -3-
        
         
                                  DECISION
         
     In our initial Decision and Order in this case, issued August 24, 1979, we
held that the Directors violated Section 964(1)(E) by refusing to negotiate about
those Association proposals involving mandatory subjects of bargaining, and that the
Association violated Section 964(2)(B) by insisting to impasse that its non-mandatory
proposals be bargained.[fn]1  These holdings have been affirmed by the Superior Court.
Left undecided in our decision, however, was the question whether several issues
contained in the School Calendar and Teacher Evaluation proposals were mandatory
or non-mandatory subjects of bargaining.  These are the issues which the Superior
Court has directed that we now decide.
         
     A.  The School Calendar Proposal.  The negotiability of the following issues
in the School Calendar proposal remains to be decided:
         
          1.  The employment year for teachers (with certain specified exceptions)
shall begin no earlier than one day prior to the first scheduled day of instruction.
         
          2.  There will be a minimum of 3 teacher workshop days.
         
          3.  Staff workshops will be held on August 29, 1977 and June 9, 1978.
         
          4.  Three storm days are built into the calendar.  Any storm days not
used will be deducted from the closing date of June 9, 1978.
         
     We hold that the first 3 issues are mandatory subjects of bargaining, and that
the fourth issue involves educational policy.  We will order the Directors to cease
and desist from refusing to negotiate about the mandatory subjects, and the Asso-
ciation to cease and desist from insisting that the educational policy issue be
bargained.
__________         

1.  Section 964(1)(E) prohibits a public employer from "refusing to bargain col-
    lectively with the bargaining agent of its employees as required by section
    965," while Section 964(2)(B) similarly prohibits the bargaining agent from
    refusing to bargain with the public employer.  Section 965(1)(C) provides
    that the two parties are mutually obligated to "negotiate in good faith with
    respect to wages, hours, working conditions and contract grievance arbitration
    . . . except that public employers of teachers shall meet and consult but not
    negotiate with respect to educational policies."

                                     -4-

     1.  Commencement of the employment year.  The issue of the number of days
prior to the first day of student instruction that the teachers are to report
for work is a mandatory subject of bargaining.  In City of Biddeford v. Biddeford
Teachers Association, 304 A.2d 387, 421-422 (Me. 1975), the Court held:  "questions
relating to the attendance of teachers at school at times other than when the
students will be in attendance are to be regarded as 'working conditions.'"  The
issue of when the teachers' employment year is to begin raises such a question, and
consequently involves a working condition about which the Directors are obligated
to bargain by 26 M.R.S.A. S 965(1)(C).  The Directors violated Section 964(1)(E)
by refusing to negotiate about this issue.
         
     2.  The minimum number of workshop days.  The question of the minimum number
of workshop days for teachers also involves working conditions because it relates
to teacher attendance at school at times when students will not be in attendance.
Again, the Directors were required by Section 965(1)(C) to bargain about this issue.
         
     3.  The dates upon which the workshops are to be held.  This issue is a man-
datory subject of bargaining so long as the dates proposed for workshop days do
not interfere with the establishment of the school year, or fall upon days which
the school committee wishes to use as class days.  If the proposed dates would
have the effect of extending or limiting the school year, or would otherwise
encroach upon the school commlttee's discretion in setting the school calendar,
then the proposal involves educational policy: "the commencement and termination
of the school year and the scheduling and length of intermediate vacations during
the school year . . . must be held matters of 'educational policies.' "  City of
Biddeford, supra at 421.  In the present case it appears that the two dates pro-
posed for workshop days - August 29, 1977 and June 9, 1978 - would have occurred
one day prior to and one day after the school year established by the Directors.
Since the proposed dates fell outside the school year set by the Directors, the
proposal was a mandatory subject of bargaining.  The Directors violated Section
964(1)(E) by refusing to bargain this issue.
         
     4.  Three storm days are to be built into the school calendar, and any storm
days not used will be deducted from the closing date of school.  This issue in-
volves educational policy because it could have the effect of determining "the
commencement and termination of school year."  The question of the number of
storm days to include in the calendar, like the question of the length of inter-

                                     -5-

mediate vacations, is a matter solely at the discretion of the school committee.
The same is true of the issue whether storm days shall be deducted from the clos-
ing date of school.  The Association violated Section 964(2)(B) by insisting to im-
passe that the Directors bargain about this issue.
         
     B.  The Teacher Evaluation Proposal.  The negotiability of the following
issues in the Teacher Evaluation proposal remain undecided:
         
         1.  At the beginning of the school year each teacher will receive a copy
of the evaluation criteria and form.
         
         2.  A written evaluation form shall be given to the teacher within 5
days of the evaluator's visit.
         
         3.  For a negative area a method of improvement will be recommended.
         
     We find that the first issue is a mandatory subject of bargaining, and that
the two remaining issues involve educational policy.
         
     1.  At the beginning of the school year each teacher will receive a copy of
the evaluation criteria and form.  This proposal is sufficiently related to work-
ing conditions to be a mandatory subject of bargaining.  By requiring that each
teacher receive early notice of the criteria by which he or she will be evaluated, the
proposal would enable the teachers to attempt to meet the performance standards
expected by the school committee.  Notice of evaluation criteria and efforts to
perform in accordance with the criteria involve working conditions within the mean-
ing of Section 965(1)(C).  Moreover, the issue whether the evaluation criteria,
as opposed to the evaluation form (see below), should be in writing also is a man-
datory subject.  Whether the criteria are to be in writing again relates to notice
of the criteria, and accordingly involves teacher working conditions.  Since the
issue whether the evaluation form should be in writing is not a mandatory subject,
the School Committee is not required to bargain about this issue.  The Association's
proposal does not attempt to say what the evaluation criteria shall be or that the
evaluation form shall be in writing, and therefore does not encroach upon educa-
tional policy matters.  The School Committee violated Section 964(1)(E) by refus-
ing to negotiate over this issue.
                                                                                
     2.  A written evaluation form shall be given to the teacher within 5 days of
     the evaluator's visit.  This issue involves a matter of educational policy because
     it requires that the evaluation be in writing.  In our earlier decision in this

                                     -6-

case, we determined that the form and frequency of an evaluation program are
non-mandatory subjects of bargaining.  Since this proposal goes to the form of
the evaluation (by proposing that it be in writing) the Directors lawfully re-
fused to bargain about the issue.  The Association violated Section 964(2)(B) by
insisting to impasse that this issue be negotiated.

         
     3.  A method of improvement will be recommended for each negative area.
This proposal also encroaches too far into the education policy areas of form
and content of the evaluation.  The proposal would require that the evaluation
include recommendations regarding methods of improvement, a matter which lies
within the discretion of the Directors.  The Association violated Section 964
(2)(B) by insisting that this issue be negotiated.
         
     C.  Remedies.  Upon finding that a party has engaged in a prohibited prac-
tice, we are directed by 26 M.R.S.A.  968(5)(C) to order the party "to cease and
desist from such prohibited practice and to take such affirmative action
as will effectuate the policies of this chapter."  The cease and desist orders
we will issue will effectuate the policies of the Act because they are enforce-
able in Superior Court, without further resort to the Board, if the violations
continue or are renewed.  26 M.R.S.A.  968(5)(D).  Thus, "the existence of a
cease-and-desist order makes it far easier for the complaining party to prevent
recurrences of a violation."  International Union, UAW v. NLRB, 427 F.2d 1330,
1337 (6th Cir. 1970).
         
         
                                    ORDER
         
     On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.  968(5),
it is ORDERED:
         
     1.  That the M.S.A.D. No. 43 Board of Directors, and their representatives
and agents, cease and desist from refusing to bargain with the M.S.A.D. No. 43
Teachers Association about:
         
          a) the number of days prior to the start of student instruction that
the teachers' employment year will commence.

                                     -7-

          b) the minimum number of teacher workshop days that will be held
during the year.
         
          c) the dates upon which the"workshops will be held so long as the
dates proposed do not interefere with the Directors' discretion to set the
school calendar, and
         
          d) whether each teacher at the beginning of the school year will
receive a copy of the evaluation criteria.
         
     2.  That the M.S.A.D. No. 43 Teachers Association, and their agents, mem-
bers, and bargaining agents, cease and desist from insisting to impasse that
the M.S.A.D. No. 43 Board of Directors bargain about:
         
          a) the number of storm days to be built into the school calendar,
and whether any storm days not used shall be deducted from the closing date
of school,
         
          b) whether a written evaluation form shall be given to the teacher
after the evaluator's visit, and
         
          c) whether methods of improvement will be recommended for negative
areas.
         
Dated at Augusta, Maine this 18th day of March, 1981.
         
                                   MAINE LABOR RELATIONS BOARD
         
         
                                   /s/_____________________________________ 
                                   Edward H. Keith
                                   Chairman
         
         

                                   /s/_____________________________________
                                   Don R. Ziegenbein
                                   Employer Representative



                                   /s/_____________________________________
                                   Wallace J. Legge
                                   Employee Representative

     The parties are advised of their right pursuant to 26 M.R.S.A.  968(5)(F)
to seek a review by the Superior Court of this decision by filing a complaint in
accordance with Rule 80B of the Rules of Civil Procedure within 15 days after
receipt of this decision.
                                     -8-