MSAD #45 v. MSAD #45 Teachers Assoc., No. 82-10, Interim Findings and Order (Jan. 12, 1982), enf'd, CV-82-34, Board Decision and Order (Sept. 17, 1982) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-10 Issued: January 12, 1982 ___________________________________ ) M.S.A.D. #45, ) ) Complainant, ) ) v. ) INTERIM FINDINGS AND ORDER ) M.S.A.D. #45 TEACHERS ASSOCIATION, ) ) Respondent. ) ____________________________________) The following unanimous oral order was directed by the members of the Maine Labor Relations Board meeting in Bangor on January 8, 1982 in the presence of the parties: "CHAIRMAN THORNE: The Board members have met in an executive session for the purposes of deliberation, and at this point it is the unanimous decision of the Board that the following findings and order be entered in this case: First, based on the evidence that's been presented before the Board, we find that the action taken by the principal at the school of the union's president in not allowing him to receive messages regarding Association activities was done in retaliation because of his position as president of the Asso- ciation, was done with the intent and purpose and effect of interfering with the Association's legitimate activities, and was a unilateral change in a past practice, and that those acts constitute a violation of Section 964(1)(A) and (B). We are ordering that the plaintiffs in this case, the MSAD No. 45, cease and desist from this activity immediately, return to the policy which was in effect prior to the letter from the prin- cipal to the president of the Association, meaning that messages be taken as was the past practice, and be put in his message box as is done for other teachers, and, I take it, even to this teacher as regards other matters. And that this order also applies to any other teachers who are receiving messages relating to Association activities since the Board finds, based on the testimony presented, that there has also been instituted a policy not to take messages regarding Association activities for other teachers where the secretary can discern that. We find that also to be a violation of Section 964(1)(A) and (B) as retaliatory against those Association members, interfering with legitimate union activities, and also a unilateral change -1- of past practice. And we are ordering a cease and desist and a return to the previous policy as regards those other teachers as well. We also find that, based on the testimony presented to us, that MSAD 45 has required bargaining unit members who were asked to appear by the Association before this body as witnesses to have been served subpoenas, and that where there was no leave time available under the contract those witnesses were docked pay. We find that that requirement constitutes a violation of 964(1)(A), (B) and (D), in that it constitutes an interference with the Association's members to appear as witnesses for legi- timate Association purposes. We limit the ruling by finding, based on the facts presented, that the witnesses who did appear and were required to appear under subpoena were necessary wit- nesses and were properly asked to be present by the Association. We're ordering that MSAD No. 45 cease and desist from this activity as regards this hearing or the appearance of bargaining unit members before this Board in other cases, and that those persons who appeared as witnesses who were docked pay be made whole by being given appropriate pay for the days in which they appeared before this Board. We make these findings of fact and orders because we believe it is essential that it be done at this point in time, and we'll have the findings and order made part of the written decision which will be rendered by this Board on this entire case after the memorandums have been filed by the parties. That's the conclusion of the findings and order." Dated at Augusta, Maine this l2th day of January, 1982. MAINE LABOR RELATIONS BOARD /s/______________________________ Gary F. Thorne Alternate Chairman /s/______________________________ Don R. Ziegenbein Employer Representative /s/______________________________ Russell A. Webb Alternate Employee Representative -2- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-10 Issued: September 17, 1982 ______________________________ ) MAINE SCHOOL ADMINISTRATIVE ) DISTRICT NO. 45, ) ) Complainant, ) ) v. ) ) DECISION AND ORDER MAINE SCHOOL ADMINISTRATIVE ) DISTRICT NO. 45 TEACHERS ) ASSOCIATION, ) ) Respondent. ) ______________________________) This is a prohibited practices case, initiated on September 14, 1981 when Maine School Administrative District No. 45 (District) filed a complaint pursuant to 26 M.R.S.A. Section 968(5)(B), alleging that the Maine School Administrative District No. 45 Teachers Association (Association) violated 26 M.R.S.A. Section 964(2)(A) and (B) by attempting to force the District to bargain about the District's hiring of a guidance counselor. The Association filed an answer to the complaint on October 5, 1981, denying that its actions constituted a violation of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. (Act). On November 23, 1981, the Association filed a counter-complaint against the District, alleging, among other things, that the District violated 26 M.R.S.A. Section 964(1)(A) and (E) by refusing to provide pertinent information to the Association, by negotiating directly with a bargaining unit member, by engaging in surveillance of Association members, and by refusing to meet and consult with regard to educational policy matters. Pre-hearing conferences on the case were held on October 14, 1981 and December 15, 1981, Alternate Chairman Gary F. Thorne and Chairman Edward H. Keith, respectively, presiding. Pre-hearing memoranda and orders were issued on October 15th and on December 15th, and the contents of these documents are incorporated herein by reference. The District orally denied the allegations contained in the Association's counterclaim at the December 15th pre-hearing conference. -1- Hearings on the matter were held on December 21, 1981 and on January 8, 1982, Alternate Chairman Thorne presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Russell A. Webb. The District was represented by F. Paul Frinsko, Esq., and the Association by UniServ Director Harold B. Dickinson. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. On January 12, 1982 the Board issued interim findings and an order, concluding that the District had engaged in violations of Section 964(1)(A), (B) and (D) and ordering appropriate remedies. The Kennebec County Superior Court enforced the findings and order on June 9, 1982 in Docket Nos. CV 82-34, et al. and the findings and order are hereby incorporated herein by reference. JURISDICTION The District is a public employer within the meaning of Section 968(5)(B) of the Act. The Association is the bargaining agent for a bargaining unit of full-time certified teachers employed by the District. The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in Section 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. On April 7, 1981, Superintendent of Schools Carleton Barnes told Association President Peter Caruso that Eugene Bradbury, a social studies and math teacher in the school system for a number of years, had been selected to fill a vacant guidance counselor position. The position had been vacant during most of the 1980-81 school year, and the District had posted the vacancy throughout the school system and had advertised it in several newspapers, stating in its announcements, "Maine State certification required" for the position. Maine's Department of Educational and Cultural Services issues a Guidance Counselor certificate, but Bradbury was not qualified to receive a Guidance Counselor certificate at the time he was hired for the position. A number of certified guidance counselors applied for the position and were interviewed by the Superintendent. -2- 2. Bradbury had seen the announcements for the vacant guidance counselor position and applied for the position even though he was not a certified guidance counselor. On March 30, 1981 Barnes told the District's Board of Directors that he had transferred Bradbury to the guidance counselor position. Bradbury's salary agreement for the guidance counselor position is dated May 4, 1981. 3. During the evening of April 7, Caruso phoned the Chairman of the District's Board of Directors and asked him about the hiring of Bradbury as a guidance counselor. The Chairman said that the District was going to send Bradbury back to college to get a master's degree in guidance counseling and was going to pay all Bradbury's expenses incurred in getting the degree, including tuition, travel, and room and board. 4. Association members discussed the hiring of Bradbury at a general meeting held on April 8, 1981. Bradbury, a member of the Association, explained that he was going to take guidance courses at the University of Maine at Orono starting that summer and that the District had agreed to pay his expenses. Bradbury said that the District had given him three years in which to get his masters degree in secondary guidance counseling, and that he had agreed to work for the District for three years following the completion of the master's program. The guidance counselor position is included in the bargaining unit represented by the Association and a collective bargaining agreement between the District and the Association was in effect when Bradbury was hired. 5. Further discussion about the situation took place at an Association meeting on April 16, 1981. Among the concerns raised by teachers present at this meeting was that the District apparently had bypassed the bargaining agent and negotiated an agreement directly with Bradbury, that an uncertified person had been hired as the guidance counselor, that the District was going to pay for Bradbury's master's degree, and that other teachers not certified as guidance counselors might have applied for the position had it been known that the District was willing to pay for a master's program. The teachers instructed Caruso and two other Association members to meet with Barnes informally to try to get more information about the hiring of Bradbury. 6. Caruso and the other two teachers went to Barnes' office the next morning prior to the beginning of school. When they arrived, Bradbury was sitting in the office talking to Barnes. Barnes told Caruso that that was not the time to discuss -3- the guidance counselor position and that he was not sure if he would ever meet to discuss the matter. 7. On May 1 Caruso wrote to Barnes requesting an informal meeting to discuss the posting of the job announcement for the vacant guidance counselor position and whether an uncertified person could properly fill the position. A meeting was held on May 11, at which time a number of issues were discussed. The Association requested that Barnes repost the vacancy and interview all teachers, including Bradbury, who wished to apply, but Barnes refused to do this. On June 2 Barnes informed Caruso that Bradbury had been placed under contract as a guidance counselor for the 1981-82 school year. 8. On May 28, 1981 the Association filed two grievances concerning the hiring of the uncertified guidance counselor, one pursuant to the District's compliance plan regarding discrimination and the other pursuant to the parties' collective bargaining agreement. The first grievance alleged that the District was not in compliance with several goals stated in the compliance plan, while the second grievance alleged that the District had violated the recognition, negotiation procedure, professional credits, and hiring procedure and individual contracts clauses in the collective bargaining agreement. Hearings on both grievances were held on July 13, 1981. 9. On July 14, the District's Compliance Committee denied the grievance filed pursuant to the compliance plan, finding that the hiring of Bradbury did not result in discrimination on the basis of race, sex, or cultural background, and that the District had not violated its goal of providing career counseling, encouragement, and training for all personnel on an equitable basis. The District's Board of Directors also denied the grievance filed pursuant to the contract on July 14. On July 21 the Association filed for arbitration of the contractual grievance. Hearings before an arbitrator were held on November 2, 1981 and January 16, 1982, and no decision on the merits of the grievance had been rendered at the time of the hearings in this case. 10. On June 15, 1981 the Association's Chief Negotiator wrote to Barnes requesting a copy of the individual contract between the District and Bradbury for the guidance counselor position as well as copies of any other agreements made by the District and Bradbury concerning the position. Barnes responded on June 18, enclosing a blank annual salary agreement and stating that he would furnish a copy -4- of the individual contract once he had received Bradbury's permission to do so. Despite the fact that the District had agreed to pay for Bradbury's master's degree in exchange for Bradbury's promise to work for the District for three years, the Superintendent also indicated that "no special provisions" were attached to Bradbury's contract. On August 27 the Chief Negotiator repeated the request for a copy of the individual contract and of any other agreement between the District and Bradbury, while the Association's UniServ Director filed a request pursuant to the Freedom of Access law for the individual contract and annual salary agreement on September 3. Barnes did not respond to either of these requests. A copy of Bradbury's annual salary agreement was produced as a District exhibit at the October 14th pre-hearing conference in this case. 11. On October 22, 1981, the arbitrator hearing the contract grievance issued a subpoena directing that Barnes produce certain documents, including all contracts and agreements between the District and/or Barnes and Bradbury regarding Bradbury's employment as guidance counselor, as well as all payment vouchers showing payment to Bradbury of expenses associated with his master's program in guidance counseling. On October 28, 1981, five days before the first day of the arbitration hearing, the District's attorney forwarded to the Association copies of Bradbury's salary agreements, some of which were illegible. Subsequent to the first day of arbitration the District's labor consultant forwarded to the Association purported copies of payment vouchers, all of which were illegible. Barnes did not produce other information as required by the subpoena, and on or about January 6, 1982, ten days before the second day of the arbitration hearing, the Association President asked Barnes for this information. Barnes refused to provide the information, saying "that arbitrator doesn't have any authority over anything." 12. At an Association meeting on June 16, 1981, Jeffrey Wark, a member of the Association, told Bradbury that the central matter in the controversy was that Wark was not offered an equal opportunity to apply for the guidance counselor position, which Wark characterized as "quite a plum." Bradbury subsequently told Barnes about Wark's comment, which Barnes included, in somewhat garbled form, as an allegation in the District's prohibited practices complaint in this proceeding. When Bradbury was questioned about this allegation at an Association meeting in the fall of 1981, he announced that he intended to relate to the Superintendent any statements which he deemed asinine made during Association meetings. -5- 13. On June 19, 1981, the Association's UniServ Director wrote to the Commissioner of the Department of Educational and Cultural Services, asking whether the hiring of an uncertified guidance counselor had been authorized by the Department. The Commissioner contacted Barnes and attempted to work out a plan to provide guidance services to the school system by a certified counselor. On September 3, 1981, however, the Commissioner notified Barnes that the hiring of an uncertified guidance counselor was contrary to state law and that the expenditure of public funds for uncertified personnel could jeopardize the District's state subsidy and Barnes' certification as a Superintendent of Schools. The Commissioner noted that certified guidance counselors were available and urged Barnes "to take immediate action to resolve the problem." Barnes continued to employ Bradbury as the guidance counselor, however. 14. At some point during the summer of 1981 the Association notified other teacher associations and guidance counselors and the media about the guidance situation in M.S.A.D. No. 45. This resulted in Barnes getting some letters from other associations and counselors urging him to correct the situation, as well as some media coverage of the controversy. 15. On October 8, 1981 the Association President requested pursuant to 26 M.R.S.A. Section 965(1)(C) that Barnes meet and consult within 10 days "regarding the filling of a guidance vacancy." Barnes replied on October 15, stating that he would respond to the request after legal counsel had reviewed the request. The Association again asked to meet and consult on October 20, but Barnes did not respond to this request, and no meet and consult sessions were held. DECISION At issue are the questions whether the Association violated 26 M.R.S.A. Section 964(2)(A) and (B) by trying to force the District to bargain about the hiring of an uncertified guidance counselor, and whether the District violated 26 M.R.S.A. Section 964(1)(A) and (E) by (1) refusing to provide information pertinent to the Association's grievances, (2) negotiating directly with a bargaining unit member, (3) engaging in surveillance of Association meetings, and (4) refusing to meet and consult about the filling of the guidance counselor vacancy.[fn]1 We conclude that _______________ 1. The Association also raised several other allegations, none of which are supported by the evidence or the law. We hereby dismiss all these allegations. -6- the District violated the Act by refusing to provide information and by taking and using reports from Bradbury about what transpired at Association meetings, and dismiss all remaining allegations. We will order remedies necessary to effectuate the policies of the Act. I. The District's Allegation The District alleges that by pursuing the two grievances, by writing to the Commissioner of the Department of Educational and Cultural Services, by publicizing the fact that the District hired an uncertified guidance counselor, and by requesting to meet and consult about the filling of the guidance vacancy, the Association attempted to force the District to deal with it about the hiring of a teacher, a matter in effect declared to be a non- negotiable subject in Board of Directors of MSAD No. 36 v. MSAD No. 36 Teachers Association, 428 A.2d 419 (Me. 1981). This attempt, the District contends, constitutes a violation of Section 964(2)(A) and (B).[fn]2 We disagree, because a mere attempt to get a party to bargain about a non- negotiable matter does not constitute a prohibited practice as defined in Section 964 and because, in any event, the record does not show that the Association attempted to force the District to bargain about the hiring of Bradbury. Rather, the record shows that the Association's actions were for the most part legitimate attempts to protect the integrity of the collective bargaining agreement and raise questions about the legality of the Superintendent's actions under state law. A threshold question is whether the District has as a matter of law alleged that any of the prohibited practices enumerated in Section 964(2) have been committed. We find that it has not. The law is of course well-settled that a party may not insist to impasse upon bargaining about a non-mandatory subject of bargaining; "such conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining." NLRB v. Wooster-Division of _______________ 2. Section 964(2)(A) prohibits public employee organizations from: "Interfering with, restraining or coercing employees in the exercise of rights guaranteed in Section 963 or a public employer in the selection of his representative for purposes of collective bargaining or the adjustment of grievances." Section 964(2)(B) prohibits public employee unions from "[r]efusing to bargain collectively with a public employer as required by Section 965." -7- Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). The District has not and cannot, on the basis of the record before us, allege that any such insistence has occurred in this case. The District's allegation that the Association has attempted to force it to bargain about the hiring simply does not make out any conceivable prohibited practice; even if the record showed that the Association had made such an attempt, it would not constitute a refusal to bargain about any mandatory subject.[fn]3 The proper action for an employer when in fact faced with an attempt to force it to bargain about a non-negotiable subject is simply to ignore the attempt. This is precisely what the District did, and properly so, as we discuss infra, with regard to the Association's request to meet and consult about the filling of the guidance vacancy. Even if an attempt to force an employer to bargain about a non-mandatory subject could be a prohibited practice, the record does not show the Association engaged in such an attempt. The facts underlying the Association's actions are that the District entered into a secret agreement with Bradbury whereby the District agreed to pay all expenses for Bradbury to obtain a master's degree in secondary guidance, with Bradbury agreeing to remain in the employ of the District as a guidance counselor for three years after obtaining his degree. This was done despite the facts that the District advertised that state certification was required for the vacant position and that certified guidance counselors applied for the job and were interviewed by the Superintendent. Moreover, both the procedure by which the District and bargaining unit member Bradbury arrived at the agreement and the terms of the agreement itself appear to be in substantial variance with various terms of the collective bargaining agreement. The hiring of an uncertified person for the position also may have violated state law and Department of Educational and Cultural Services rules and regulations.[fn]4 _______________ 3. A union could of course engage in such extreme forms of harassment as to constitute interference with an employer in the selection of his bargaining representative in violation of Section 964(2)(A) or an improper job action in violation of Section 964(2)(C), but the record in this case falls far short of supporting any such findings. 4. Barnes' testimony that Bradbury was not really hired to be a guidance counselor is not credible because it is contradicted by all the other evidence in the record. For example, Bradbury's salary agreement states that he was hired as a guidance counselor, Barnes apparently introduced Bradbury as "the guidance counselor" at the beginning of the 1981-82 school year, and Bradbury clearly understood that he was being hired as a guidance counselor. The District also refers to Bradbury throughout its prohibited practices complaint as the "guidance counselor." In light of the record evidence, we have no doubt that Bradbury was employed as a guidance counselor. -8- Viewed in light of these background facts, the Association's actions plainly were proper. The grievance filed pursuant to the District's Compliance Plan alleged that the hiring of Bradbury resulted in discrimination against other teachers who might have applied for the job had they known that possession of a guidance certificate was not in fact required, and that the hiring violated the goal of providing career counseling and training to all teachers on an equitable basis. While the Compliance Committee denied this grievance, we think the points raised by the Association were legitimate and that the grievance cannot be construed as an attempt to coerce or harass the District. The same is true of the grievance filed pursuant to the contract, alleging that the secret agreement and the procedure by which the District hired Bradbury violated various contractual provisions. Plainly the Asso- ciation acted properly in raising these matters and seeking a determination on whether the contract had been violated; such actions were well within the rights and responsibilities given to it by the contract and the Act. We also cannot say that the facts that the Association raised questions before the Department of Educational and Cultural Services about the hiring of an uncertified person and publicized the fact that an uncertified guidance counselor had been hired amount to attempts to coerce the District. The District had acted in a highly questionable manner and it certainly was proper for the Association to question these actions. While we conclude that the District was not required to comply with the Association's request to meet and consult about the filling of the vacancy, we cannot say that the request amounted to a prohibited practice. As we have already noted, the District properly ignored this request. We do not agree with the District's contention that the decision in M.S.A.D. No. 36, supra, prohibited all of the Association's actions in this matter. That decision holds that a school district cannot lawfully limit in a collective bargaining agreement its exclusive statutory responsibility for choosing teachers. It does not follow from this decision, as the District contends, that any attempt by an association to question or challenge the hiring of an uncertified person under such circumstances as present in this case is unlawful. The present case obviously does not involve the typical hiring situation and it bears noting that the thrust of the contract grievance was that the District's actions leading up to the hiring of Bradbury (entering into the secret agreement, not announcing that uncertified persons could apply for the job, etc.), not the decision to hire itself, violated the contract. Nothing said in M.S.A.D. No. 36 suggests that the Association was -9- prohibited from raising such contentions. In short, we conclude that the Association did not violate the Act. We will dismiss the District's complaint. II. The Association's Allegations A. The refusal to provide information. On June 15, 1981 the Associa- tion's Chief Negotiator requested from Superintendent Barnes a copy of the individual contract and any other agreements pertaining to the guidance counselor position made by the District and Bradbury. Barnes responded on June 18th, enclosing a blank annual salary agreement and stating he would provide a copy of the individual contract once Bradbury had given him permission to do so. Despite the fact that the District and Bradbury had already entered into the secret agreement, Barnes also stated that "no special provisions" were attached to Bradbury's contract. Barnes made no further response to the request, and on August 27th the Chief Negotiator repeated the request. On September 3rd the UniServ Director requested copies of the individual contract and annual salary agreement pursuant to the Freedom of Access law. The Superintendent did not respond to either of these requests. A copy of the annual salary agreement was produced as a District exhibit at the October 14th pre-hearing conference. On October 22, 1981 the arbitrator issued a subpoena directing the District to produce certain documents and information. On October 28th the District's attorney forwarded to the Association copies of Bradbury's salary agreements, some of which were illegible. After the first day of the arbitration hearing the District's labor consultant forwarded purported copies of other subpoenaed documents, all of which were illegible. The District did not produce other information as directed in the subpoena, and prior to the second day of the arbitration hearing the Association President asked Barnes for this information. The Superintendent refused to provide the information. The District's refusal to provide information pertinent to the Associa- tion's grievances is a blatent violation of the Act: "The duty to bargain collectively . . . includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining agent." Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979). -10- Such information includes that relevant to the administration and policing of the contract in general as well as that pertinent to any potential or actual grievance. See, e.g., Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 68 (3rd Cir. 1965). Here the District refused to provide the requested information from the time of the initial request on June 15, 1981 to the time of the hearing of this case approximately 6 months later. The requested information obviously was relevant to the Association's grievances; the agreements with Bradbury, the payment vouchers, and Bradbury's application for the job all go to the heart of the Association's contentions that the District violated its Compliance Plan and that the secret agreement violated the collective bargaining agreement. Most of the requested information was public informa- tion, so the District cannot raise confidentiality as a defense. Moreover, the District was required to participate in the grievance proceedings since, as we have noted, the grievances were entirely proper. This the District implicitly recognized since it did in all other respects participate in the proceedings. We conclude that the District's refusal to provide pertinent information constitutes a violation of its duty to bargain as well as unlawful inter- ference with the teachers' free exercise of their right to bargain collec- tively. The District accordingly has violated Section 964(1)(E) and (A).[fn]5 We will order the District to cease and desist from refusing to provide relevant information needed by the Association for the performance of its duties as the bargaining agent, and to take the affirmative action of providing such information whenever requested by the Association. _______________ 5. Section 964(1)(E) prohibits public employers from "[rlefusing to bargain collectively with the bargaining agent of its employees as required by Section 965," while Section 964(1)(A) states that public employers are pro- hibited from "[ilnterfering with, restraining or coercing employees in the exercise of rights guaranteed in Section 963." Section 963 states: No one shall directly or indirectly interfere with, intimidate, restrain, coerce or discriminate against public employees or a group of public employees in the free exercise of their rights, hereby given, voluntarily to join, form and participate in the activities of organizations of their own choosing for the purposes of representation and collective bargaining, or in the free exercise of any other right under this chapter. -11- 2. The agreement with Bradbury. The record shows that the District, without the knowledge of the Association, entered into an agreement with bargaining unit member Bradbury which provided significantly greater benefits than those provided in the collective bargaining agreement. The law is of course well-settled that individual negotiations with bargaining unit members bypasses the exclusive bargaining representative in violation of Section 964(l)(A) and (E). See, e.g., Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). The District's defense to this charge, however, is that consideration of the allegation is time-barred by Section 968(5), which provides in pertinent part that "no hearing shall be held based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint." The Association first learned of the agreement between the District and Bradbury on April 7, 1981, when the Association President spoke to the Chairman of the District's Board of Directors. Bradbury confirmed the existence of the agreement at an Association meeting on April 8th. The Association did not file its counter-claim alleging that the agreement violated the Act until November 23, 1981, however, well over 6 months after the Association became aware of the existence of the agreement. We accord- ingly conclude that the allegation is barred by the six-month statute of limitations contained in Section 968(5)(B) and that is must therefore be dismissed. See, e.g., Local Lodge No. 1424, Machinists v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960).[fn]6 3. Surveillance of Association members. The record shows that Bradbury reported to Barnes the gist of a comment made by Association member Jeffrey Wark at a union meeting in June, 1981, and Barnes included this comment in an allegation in the District's complaint. When Association members questioned Bradbury about how Barnes had learned of the comment, Bradbury stated that he was going to report to Barnes any asinine statements made at Association meetings. On one occasion Bradbury was seen in Barnes' office discussing something with Barnes early one morning after an Association meeting the prior evening. We conclude that Barnes was in essence using Bradbury to spy on Asso- ciation meetings. The facts that Barnes and Bradbury had a close relation- ship, that they had entered into several deals between themselves, and that Barnes was hostile ________________ 6. All other of the Association's allegations fall within the six-month statute of limitations and thus were timely filed. -12- towards the Association and on at least one occasion used the information provided by Bradbury against the Association lead us to believe that the two men had at least implicitly agreed that Bradbury would report on Association meetings to Barnes. Such an arrangement for the surveillance of Association activities constitutes unlawful interference of employee rights in violation of Section 964(1)(A). See, e.g., Saginaw Furniture Shops, Inc. v. NLRB, 343 F.2d 515, 517 (7th Cir. 1965); Liberty Homes, Inc., 216 NLRB 1102, 1106 (1975). The knowledge that Bradbury was reporting their activities to Barnes obviously would have a strong chilling effect on the free exercise of the Association members' protected rights. We conclude that the District violated Section 964(1)(A) by using Bradbury as an informer, and we will order the District to cease and desist from using employees to report on the activities of Association members. 4. The meet and consult request. On October 8, 1981 the Association requested pursuant to Section 965(1)(C) that the District meet and consult within 10 days "regarding the filling of a guidance vacancy.[fn]7 Barnes responded on October 15th, stating that he would reply to the request after it had been reviewed by legal counsel. The Association repeated its request on October 20th, but Barnes made no response to this request and no meet and consult sessions were held. We find that the District properly refused to meet and consult about the "filling of a guidance vacancy" because this issue is not an educational policy matter within the meaning of Section 965(1)(C). The Court in M.S.A.D. No. 36 held that 20 M.R.S.A. Section 161(5) reflects "a specific legislative intent to reserve to the school board and superintendent responsibility for filling teaching positions," and that a school board could not lawfully limit this responsibility through an agreement with a teachers association. 428 A.2d at 422. We have held in a number _______________ 7. Section 965(1)(C) states that public employers and bargaining agents are mutually obligated: To confer and negotiate in good faith with respect to wages, hours, working conditions and contract grievance arbitration except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession and except that public employers of teachers shall meet and consult but not negotiate with respect to educational policies for the purpose of this paragraph, educational policies shall not include wages, hours, working conditions or contract grievance arbitration. -13- of cases that matters governed by statute are "non-negotiable" subjects about which a school district is neither obligated to negotiate nor meet and consult. See, e.g., Brunswick School Board v. Brunswick Teachers Association, PLERB No. 75-19 (Jan. 16, 1976).[fn]8 Since, unlike the Association's grievances, the request to meet and consult raises an issue over which school boards and superintendents have exclusive responsibility, the matter is governed by statute and the District was not obligated to meet and consult.[fn]9 We will dismiss the Association's allegation. 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 provisions of 26 M.R.S.A. Section 968(5), it is hereby ORDERED: 1. That the prohibited practices complaint filed by Maine School Administrative District No. 45 is dismissed. 2. That Maine School Administrative District No. 45, and its representatives and agents: a) Cease and desist from: 1) Refusing to provide information pertinent to the Association's performance of its duties as the teachers' bargaining agent 2) Using employees to observe or report on the activities of any Association member or the matters discussed at any Association meeting. _______________ 8. Educational policy, on the other hand, has been defined as matters involving "functions generally cognizable as 'managerial' and 'policy-making'" which are "significantly substantial" so as to override any reasonable relationship to working conditions. City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387, 420 (Me. 1973). Mandatory subjects of bargaining are defined in Section 965(1)(C) as matters relating to "wages, hours, working conditions and contract grievance arbitration." 9. The Association's contention that it also wished to meet and consult with the District about other matters which may have involved educational policy is misplaced because the Association did not notify the District that it wished to meet about these matters. The District obviously cannot be faulted for failing to meet and consult about matters not raised by the Association. -14- 3) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 963 of the Act. b) Take the following affirmative actions necessary to effectuate the policies of the Act: 1) Furnish promptly upon request by the Association all infor- mation pertinent to the Association's performance of its duties as the teachers' bargaining agent. 2) Post at all places where notices to employees are customarily posted copies of the attached notice. Copies of this notice, after being duly dated and signed by Superintendent of Schools Carleton Barnes, shall be posted by the District immediately upon receipt and shall be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Dis- trict to insure that said notices are not altered, defaced or covered by any other material. 3) Notify the Executive Director, in writing, within 20 days of the date of this Order, of the steps the District has taken to comply herewith. 3. All the Association's remaining allegations are dismissed. Dated at Augusta, Maine, this 17th day of September, 1982. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised of Gary F. Thorne their right pursuant to Alternate Chairman 26 M.R.S.A. Section 968 (5)(F) to seek a review by the Superior Court of this decision by filing /s/________________________________ a complaint in accordance Don R. Ziegenbein with Rule 80B of the Rules Employer Representative of Civil Procedure within 15 days after receipt of this decision. /s/________________________________ Russell A. Webb Alternate Employee Representative -15- -15- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT refuse to provide information pertinent to the Teachers Asso- ciation's performance of its duties as a bargaining agent. (2) WE WILL NOT use employees to observe or report on the activities of any Teachers Association member or the matters discussed at any Teacher Association meeting. (3) WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 963 of the Act. (4) WE WILL furnish promptly upon request by the Association all information pertinent to the Association's performance of its duties as the teachers' bargaining agent. (5) WE WILL notify the Executive Director of the Maine Labor Relations Board, in writing, within 20 days of the date of the Decision and Order, of the steps we have taken to comply with the Decision and Order. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 45 Dated: _________________________ By: _______________________________________ Carleton L. Barnes Superintendent of Schools This Notice must remain posted for 60 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289-2016.