STATE OF MAINE                                    MAINE LABOR RELATIONS BOARD
                                                               Case No. 79-68

consisting of Jane A. Amero,       )
David N. Fisher, Jr., Howard H.    )
Dana, Jr., Robert B. McKeagney, Jr.)
and Mary E. Vail,                  )
                      Complainant, )             DECISION AND ORDER
  v.                               )
ASSOCIATION,                       )
                      Respondent.  )

     The Cape Elizabeth School Board (hereafter "CESB") filed this complaint
with the Maine Labor Relations Board ("Board") on May 25, 1979.  The Cape Elizabeth
Teachers Association ("Association") filed a response on June 19, 1979.

     A pre-hearing conference was held on July 18, 1979, by Alternate Chairman
Donald W. Webber, who issued a Pre-Hearing Conference Memorandum and Order dated
July 24, 1979, the contents of which are incorporated herein by reference.  In a
letter dated August 1, 1979, the parties stipulated that the allegations of Count
II were moot and that the only issues of fact in Count 1 were now agreed upon.
The Board therefore received the case on stipulated facts, Chairman Edward H.
Keith presiding, with Employee Representative Wallace J. Legge and Employer Repre-
sentative Don R. Ziegenbein.

     The Cape Elizabeth School Board was represented by Nicholas S. Nadzo, Esq.;
the Association by John C. Alfano.  They submitted briefs and reply briefs; the
last of which was received on October 11, 1979.  The Cape Elizabeth School Board
then requested oral argument.  The Board granted the request and heard the oral
argument of both parties on November 7, 1979.


     Jurisdiction of the Board lies in Section 968(5) of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A.  968(5)(1979)("Act").

                              FINDINGS OF FACT

     As stipulated by the parties, and as admitted in the pleadings, the pertinent
facts are as follows:

     1.  The Cape Elizabeth School Board is the duly elected municipal
         body of the Town of Cape Elizabeth charged with the responsi-
         bility for operating all of the public schools therein and is
         a "public employer" within the provisions of the Act, 26
         M.R.S.A.  962(6).  The Cape Elizabeth School Board was com-
         posed of Jane A. Amero, David N. Fisher, Jr., Howard H. Dana,
         Jr., Robert B. McKeagney, Jr. and Mary E. Vail, members, at
         all relevant times herein.


     2.  The Association is the duly certified "bargaining agent" of the
         certified teachers employed by the CESB within the meaning of the
         Act, 26 M.R.S.A.  962(2).

     3.  There was a collective bargaining agreement in effect between the
         parties for a term of two years commencing on September 1, 1977.
         On October 12, 1978, pursuant to Articles III and IV of the 1977
         agreement, the Association presented its proposals for changes in
         the agreement, including a proposal providing that:  "No teacher
         shall be disciplined, reprimanded, reduced in rank or compensation
         and no teacher on continuing contract shall be dismissed or have
         his/her contract non-renewed without just cause."  The CESB pre-
         sented its proposals to the Association on November 8, 1978.  On
         December 11, 1978, the Association presented its counterproposal
         which again included the proposal regarding just cause.

     4.  Following presentation of the Association's proposals and counter-
         proposals, the CESB informed the Association that the Association's
         proposal for a just cause provision for dismissal and nonrenewal
         was not a mandatory subject for bargaining, involved a non-nego-
         tiable educational policy, and was violative of the statutorily-
         mandated authority vested exclusively in the CESB and/or Superinten-
         dent of Schools, and that the CESB could not negotiate the obliga-
         tions and responsibilities imposed upon it by statute.  The CESB
         requested that the proposal be removed from the bargaining table.

     5.  Subsequently, the Association declared an impasse in the negotiations;
         on April 12, 1979, the CESB requested the services of a mediator.

     6.  The Association in good faith refused and has continued to refuse to
         withdraw the proposal for a just cause provision for dismissal and


     It is well settled under federal labor law and prior decisions of the
Board that a party may insist to impasse on a subject of bargaining that falls
within the scope of the phrase:  "wages, hours, working conditions and contract
grievance arbitration."  26 M.R.S.A.  965(1)(C).  See, e.g., N.L.R.B. v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958); Teamsters Local
48 v. Town of Falmouth, MLRB No. 79-10 (June 6, 1979).  These subjects are re-
ferred to as "mandatory" subjects of bargaining.

     If the subject does not fit within the scope of this language, it would be
termed a "permissive" subject of bargaining.  Parties may agree together to
negotiate over a permissive subject but one may not insist on it to impasse
or force it to fact-finding or interest arbitration over the objection of the

     Even if a subject falls within the scope of the "working conditions" phrase,
however, negotiations may nonetheless be prohibited if the subject is an "educa-
tional policy."  26 M.R.S.A.  965(1)(C); see City of Biddeford v. Biddeford Tea-
chers Association, 304 A.2d 387 (Me. 1973) (Wernick, J.).  A subject may also be
limited by some other statutory enactment.  See Superintending School Committee
of Winslow v. Winslow Education Association, 363 A.2d 229 (Me. 1976).

     The only issue in the case is the appropriate categorization of the bar-
gaining subject of just cause for dismissal and nonrenewal.  If it is a permis-
sive subject, then the Association has committed a prohibited practice in viola-
tion of 26 M.R.S.A.  964(1)(E).  If it is a mandatory subject, then there has been


no violation by the Association and the CESB must negotiate over it.

     In the Winslow case, the Law Court specifically left this issue open in light
of the 1976 amendment to 20 MRSA  161(5).  363 A.2d at 231 n.3.  The amendment
added the following sentence to the subsection of the law which governs the "powers
and duties of the superintendent":

          "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 probationary

     The CESB argues that the amendment not only removed the prohibition from ne-
gotiating this subject as the statute had been construed before the amendment by
the Superior Court in Winslow [Superintending School Committee of Winslow v. Wins-
low Education Association, No. 2024-73 (Kennebec Super. Ct. Sept. 15, 1975), aff'd,
363 A.2d 229 (Me. 1976)], but also established it as a permissive subject of bar-
gaining.  Although the CESB notes that the Legislature should perhaps have amended
the Municipal Public Employees Labor Relations Act, 26 MRSA  961 et seq., rather
than Title 20, in order to avoid controversy, it argues that the language of the
amendment clearly and unambiguously categorizes the subject as a permissive one.
It also claims that the legislative intent in enacting the amendment also supports
this contention.

     The Association relies on the recent decision of the Board in M.S.A.D. No. 43
Board of Directors v. M.S.A.D. No. 43 Teachers Association, MLRB No. 79-36 (Aug.
24, 1979), complaint for review filed, Kennebec Super. Ct., CV-79-541 (Sept. 7,
1979), in support of its contention that its proposal for a just cause provision
is a mandatory subject of bargaining.  We agree with the Association and therefore
will dismiss the complaint.  In the M.S.A.D. No. 43 case, the Board dealt with the
same question that is involved here.  The legislative history was analyzed in depth.
The CESB has presented no new argument which would persuade us that the decision
in M.S.A.D. No. 43 was incorrect.  We therefore affirm the Board's holding in that
case.  In short, the entire legislative history of the amendment, the surrounding
circumstances, and the reference back to the labor relations act lead us to con-
clude that a just cause proposal such as that of the Association in this case is
a mandatory subject of bargaining under 26 MRSA  965(1)(C).


     The complaint is dismissed.

Dated at Augusta, Maine, this 14th day of February, 1980.

                                          MAINE LABOR RELATIONS BOARD

                                          Edward H. Keith, Chairman

                                          Wallace J. Legge, Employee Representative

                                          Don R. Ziegenbein, Employer Representative

Employer Representative Ziegenbein also filed a concurring opinion.


                          CONCURRING OPINION

     Although I join and fully concur with the decision and order of the Board,
I feel uncomfortable enough about certain loose ends in the legislative fabric
that I feel compelled to elaborate on my opinion somewhat.  Specifically, I do
not think that the Legislature has utilized, in its 1976 amendment to Section
161(5), the optimum method to change the law.  Consequently I am concerned that
significant areas remain unresolved and may prove difficult to clarify.

     For example, two avenues of relief now appear to be available to a teacher
in a bargaining unit covered by a collective bargaining agreement with both a
just cause clause and a grievance arbitration clause.  Not only could the non-
renewal or dismissal of the teacher be subject to binding arbitration under the
agreement, but also it could be subject to review by the Superior Court via a
Rule 80(B) complaint.  While it has been said that it is always good when a man
has two irons in the fire, I am certain that all participants in labor relations
are not warmed by this prospect.  Another concern is the obscuring of the rela-
tionship between the school committee and the superintendent given that Title
20  473(4) vests the duty to dismiss teachers in the school committee while the
amendment which established just cause for dismissal as a negotiable item was
placed in Title 20  161, which concerns the powers and duties of superintendents.
It is with some frustration, therefore, that I envision the litigation that this
particular just cause amendment will doubtlessly foment.

Dated at Augusta, Maine, this 14th day of February, 1980.

                                          Don R. Ziegenbein
                                          Employer Representative