Ross and Portland Teachers Association v. Portland School Committee, No. 83-04,
Interim Order on Motion to Quash Subpoena (Dec. 6, 1982); Decision and Order,
6 NPER 20-14038 (Aug. 29, 1983)

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                         Case No. 83-04


________________________________
                                )
JEANNIE ROSS and PORTLAND       )
TEACHERS ASSOCIATION,           )
                                )
               Complainants     )
                                )                  ORDER ON RESPONDENTS'
           v.                   )                  MOTION TO QUASH
                                )                  SUBPOENA
PORTLAND SUPERINTENDING SCHOOL  )
COMMITTEE OF THE CITY OF        )
PORTLAND and PETER GREER,       )
                                )
               Respondents      )
________________________________)


     On October 20, 1982, the Complainants requested the Board to issue a
subpoena duces tecum ordering Dr. Peter Greer to produce several documents
prior to the Board's hearing in this matter.  The subpoena was issued on
October 21, 1982, and Dr. Greer was ordered to produce, among others, the
following items which are in dispute herein:

     1.  Any documents which reflect enrollment in English classes
         in Portland High School for the years 1979-80, 1980-81,
         and 1981-82.

     2.  All class schedules of all students enrolled in Portland
         High School in the school year 1981-82.

     3.  Personnel files (including central office and individual
         school files) of all English teachers employed by the
         Portland School system who are certified to teach English
         in grades 7 through 12.

     6.  Any information in the possession of Eve Bither and/or
         Dr. Greer regarding Jeannie Ross.

A meeting between the parties with a representative of the Board was held on
October 29, 1982.  Although the subpoena was never served, counsel for the
Respondents waived formal service thereof.  At said meeting, counsel for the
Respondents provided the Complainants' attorney with documents in partial
satisfaction of the subpoena request and said counsel stated that they would
be filing a Motion to Quash Subpoena as to those items listed above.  The
Respondents filed a Motion to Quash Subpoena on November 3, 1982.  On

                                      -1-

November 3, 1982, the Board, with Alternate Chairman Donald W. Webber pre-
siding together with Employer Representative Don R. Ziegenbein and Employee
Representative Harold S. Noddin, held a hearing on the merits of said Motion
to Quash Subpoena.  The Complainants were represented by Donald F. Fontaine,
Esq., and the Respondents were represented by Hugh G. E. MacMahon, Esq., and
Harry R. Pringle, Esq.  The parties were given full opportunity to present
evidence and to make argument.  Both parties filed appropriate post-hearing
briefs which have been considered by the Board.

                                  DECISION

Item 1:  Any documents which reflect enrollment in English classes in Portland
High School for the years 1979-80, 1980-81, and 1981-82.

     During the meeting of October 29, 1982, the Respondents, in partial
satisfaction of this item, provided the Complainants with summary documents
showing the course name, the teacher, and the number of enrolled students
for each English course offered at Portland High School, for the 1979-80,
1980-81 and for the Fall semester of the 1981-82 school years.  The Com-
plainants have requested that the Respondents satisfy the request by pro-
viding similar documents for the Spring semester of the 1981-82 school year.
In response to this request, the Respondents have asserted:

     "As Respondents stated at the hearing on this motion, the
      student enrollments in the various classes at Portland
      High School for the second semester of the 1981-82 school
      year can only be ascertained from student grade reporting
      sheets for each class."

     In deciding the propriety of the Complainants' request, the Board must
weigh the potential benefit, accruing from the provision of the documents,
to the Complainants balanced against the burden which would be imposed upon
the Respondents if production thereof was ordered.  The Board believes that
student grade reporting sheets are educational records, within the meaning of
20 U.S.C.  1232g(a)(4)(A).  Under the provisions of 20 U.S.C.  1232g(b)(2)(B),
said records may be produced in response to "any lawfully issued subpoena,
upon condition that parents and the students are notified of all such orders
or subpoenas in advance of the compliance therewith by the educational
institution or agency.  The Complainants have not averred any specific

                                      -2-

need for the requested documents while the onerous burden of notification
of their release, to parents and to the students, by the Respondents is
patent.  The Board, therefore, determines that the Respondents have no duty
to provide student grade reporting sheets, for each class involved, to the
Complainants in satisfaction of item 1 of the subpoena.

     The Board notes that the summary documents, which have been provided
by the Respondents in partial satisfaction of item 1, do not constitute
"educational records" within the meaning of the Federal statute cited above.
The summary document, showing course and teacher name, class period, and
number of students enrolled in each course for the Spring semester of the
1981-82 school year would not be burdensome for the Respondents to produce.
If such a document, identical in format to those already produced by the
Respondents, exists, the Board will order that it be produced and supplied
to the Complainants.

Item 2:  All class schedules of all students enrolled in Portland High
School in the school year 1981-82.

     At the hearing on the Motion to Quash Subpoena, the Complainants
clarified their request contained in item 2 above.  Complainants' counsel
stated that the documents being sought thereby were class request forms
completed by the students at the Portland High School during March of 1982.
The Board believes that the subpoenas duces tecum must state, with reasonable
clarity and particularity, the documents sought thereby.  The above des-
cription does not satisfy this requirement.  Class schedules were provided
and class request forms were not clearly within the scope of item 2 as
drafted.  We must, therefore, quash the subpoena as it relates to item 2
thereof.

Item 3:  Personnel files (including central office and individual school
files) of all English teachers employed by the Portland School system who
are certified to teach English in grades 7 through 12.

     The requested information is clearly confidential, within the scope
of 20 M.R.S.A.  807(2).  In order to release said files to the Complainants,
the Respondents would first have to secure the written permission of the
teachers involved.  The Complainant Union, as the exclusive bargaining agent
for all of the teachers involved, is well aware of their identity.  The Union

                                      -3-

has, however, made no effort to secure permission from said teachers,
authorizing review of the files by the Complainants.  If the Complainants
had secured said permission, the Respondents would have to provide the
files.  Since both parties have equal access to the teachers involved, in
order to secure their permission to authorize release of the files and
recognizing the confidential nature of said records, the Board will quash
item 3 of the subpoena.

Item 6: Any information in the possession of Eve Bither and/or Dr. Greer
regarding Jeannie Ross.

     This request is so vague and indefinite that it falls into the classic
category of being a "fishing expedition."  The Complainants' counsel, at the
hearing before the Board, stated that he could not assert any specific reason
to believe that such information, beyond Ms. Ross' personnel file or notes
taken during collective bargaining sessions, even exist.  The Complainants
have stated that they are not seeking either Ms. Ross' personnel file or
notes made during collective bargaining by either Ms. Bither or Dr. Greer.
Since the Complainants' request is vague and indefinite and since no showing
of need therefor has even been attempted by the Complainants, we find the
request to be unreasonable and it will be quashed.


                                     ORDER
                                     
     The Maine Labor Relations Board, pursuant to the authority granted in
26 M.R.S.A.  968(6) ORDERS:

     1.  That item 1, listed in a Subpoena duces tecum issued by
         the Board on October 21, 1982, be enforced to the extent
         that the information to be produced by Dr. Peter Greer
         for the Spring semester of the 1981-82 school year is
         of the same form and nature as that already provided by
         the Respondents to the Complainants, to wit: summary
         sheets listing the name of each course, the teacher's
         name, and the number of students enrolled in each case.

     2.  Items 2, 3, and 6 of the aforesaid Subpoena duces tecum,
         be and hereby are quashed.
                                       
                                      -4-

Dated at Augusta, Maine, this 6th day of December, 1982.

                                       MAINE LABOR RELATIONS BOARD



                                       /s/______________________________
                                       Donald W. Webber
                                       Alternate Chairman



                                       /s/______________________________
                                       Don R. Ziegenbein
                                       Employer Representative



                                       /s/______________________________
                                       Harold S. Noddin
                                       Employee Representative

                                      -5-




STATE OF MAINE                                 MAINE LABOR RELATIONS BOARD
                                               Case No. 83-04
                                               Issued:  August 29, 1983


_____________________________________
                                     )
JEANNIE ROSS and PORTLAND TEACHERS   )
ASSOCIATION,                         )
                                     )
                      Complainants   )
                                     )
                v.                   )            DECISION AND ORDER
                                     )
PORTLAND SUPERINTENDING SCHOOL       )
COMMITTEE OF THE CITY OF PORTLAND    )
and PETER GREER,                     )
                                     )
                       Respondents   )
____________________________________ )


     This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on July 29, 1982, by Jeannie Ross and the Portland
Teachers Association ("Union").  The Union's complaint alleges that the
Portland Superintending School Committee of the City of Portland
("Employer"). acting by and through Peter Greer, Superintendent of
Schools of the City of Portland, violated 26 M.R.S.A. Sections
964(l)(A), (B) and (C), by involuntarily transferring Jeannie Ross, the
President of the Union, from Portland High School to King Middle
School.  The Employer, on August 19, 1982, filed an answer, denying that
it had violated any section of the Municipal Public Employees Labor
Relations Act ("Act"), 26 M.R.S.A. Section 961, et seq. and, because the
subject matter of the complaint is presently pending in the grievance
procedure, provided by the applicable collective bargaining agreement
between the Employer and the Union, to defer consideration of this dase
until the same has been resolved by said grievance procedure.

                                  -1-

     A pre-hearing conference on the case was held on September 28, 1982,
Alternate Chairman Donald W. Webber presiding.  On October 1. 1982,
Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.

     On October 20, 1982, the Union requested the Board to issue a
subpoena duces tecum, ordering Dr. Peter Greer to produce several
documents prior to the Board's hearing on the merits in this matter.
The subpoena was issued on October 21, 1982.  A meeting, between the
Union and the Employer with a representative of the Board present, was
held on October 29, 1982.  Although the subpoena was never served,
counsel for the Employer waived formal service thereof.  At the meeting
of October 29, 1982, counsel for the Employer provided the Union's
attorney with documents in partial satisfaction of the subpoena.  The
Employer, on November 3, 1982, filed a Motion to Quash Subpoena.  On
November 3, 1982, the Board, with Alternate Chairman Donald W. Webber
presiding together with Employer Representative Don R. Ziegenbein and
Employee Representative Harold S. Noddin, held a hearing on the
Employer's Motion to Quash Subpoena.  The Employer was represented by
Hugh G. E. MacMahon, Esquire, and Harry R. Pringle, Esquire, and the
Union was represented by Donald F. Fontaine, Esquire.  The parties were
given full opportunity to present evidence and to make argument.  Both
parties filed post-hearing briefs which were considered by the Board.
On December 6, 1982, the Board issued an Order on Respondent's Motion to
Quash Subpoena, the contents of which is incorporated herein by
reference.

     Hearings on the merits of this case were held on December 15, 1982,
January, 14, 1983, and February 4, 1983, Alternate Chairman Donald W.
Webber presiding, with Employer Representative Don R. Ziegenbein and

                                  -2-

Employee Representative Harold S. Noddin.  Ms. Ross and the Union were
represented by Howard T. Reben, Esquire, and the Employer was
represented by Harry R. Pringle, Esquire.  The parties were given full
opportunity to examine and cross-examine witnesses, introduce evidence,
and make argument.  The parties filed post hearing briefs, which have
been considered by the Maine Labor Relations Board ("Board").

                              JURISDICTION

     The Portland Teachers Association is the recognized exclusive
bargaining agent, within the meaning of 26 M.R.S.A. Sedtions 962(2) and
968(5)(B), for a bargaining unit composed of all social workers employed
by the Portland Superintending School Committee of the City of Portland
and all certificated employees of the Portland School System, excluding
the Superintendent, Assistant Superintendents, Principals, Assistant
Principals, Director and Assistant Director of Special Services.
Coordinator of Evaluation and Data Management and Director of PREP.
Jeannie Ross, at all times relevant hereto, has been the President of
the Portland Teachers Association and has been a member of the foregoing
bargaining unit.  Ms. Ross is a public employee, within the definition
of 26 M.R.S.A. Section 962(6) and as that term is applied in 26 M.R.S.A.
Section 968(5).  The Portland Superintending School Committee of the
City of Portland is the public employer, within the definition of 26
M.R.S.A. Section 962(7), of the employees who are included in the
foregoing bargaining unit.  At all times relevant hereto, Dr. Peter
Greer has been the Superintendent of Schools of the City of Portland and
the agent or employee of the Portland Superintending School Committee of

                                  -3-

the City of Portland.  Since the allegations herein concerning Dr. Greer
allegedly arise out of and were performed by him during the course of
his employment with the Portland Superintending School Committee of the
City of Portland, Dr. Peter Greer is a public employer, within the
meaning of 26 M.R.S.A. Section 962(7).  The jurisdiction of the Maine
Labor Relations Board to hear this case and to render a decision and
order herein lies in 26 M.R.S.A. Section 968(5).

                            FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1.  The Portland Teachers Association is the recognized exclusive
bargaining agent, within the meaning of 26 M.R.S.A. Sections 962(2) and
968(5)(B), for a bargaining unit composed of all social workers employed
by the Portland Superintending School Committee of the City of Portland
and all certificated employees of the Portland School System, excluding
the Superintendent, Assistant Superintendents, Principals, Assistant
Principals, Director and Assistant Director of Special Services,
Coordinator of Evaluation and Data Management and Director of PREP.

     2.  Jeannie Ross, at all times relevant hereto, has been the
President of the Portland Teachers Association and has been a member of
the bargaining unit, noted in paragraph 1 above.  Ms. Ross is a public
employee, within the definition of 26 M.R.S.A. Section 962(6).

     3.  The Portland Superintending School Committee of the City of
Portland is the public employer, within the definition of 26 M.R.S.A.
Section 962(7). of the employees who are included in the bargaining
unit. noted in paragraph 1 above.

                                  -4-
                                                      
     4.  Dr. Peter Greer, the Superintendent of Schools of the City of
Portland, is the agent or employee of the Portland Superintending School
Committee of the City of Portland.  Since the factual allegations in
this case, concerning Dr. Greer, allegedly arose out of and were
performed by him during the course of his employment with the Portland
Superintending School Committee of the City of Portland, Dr. Greer is a
public employer, within the meaning of 26 M.R.S.A. Section 962(7).

     5.  Ms. Ross was first permanently hired by the Portland School
System in 1974 and taught eighth grade at Lincoln Junior High School for
one year, taught for three years at Deering High School, taught at King
Junior High School for one year, and, prior to June 18, 1982, taught for
three years at Portland High School.

     6.  During her term of office as President of the Portland Teachers
Association, Ms. Ross has been a very active, aggressive, and effective
union president.  Ms. Ross has been involved in the filing and
processing of approximately 15 to 20 controversial grievances, during
said tenure.  In addition thereto, Ms. Ross has often been successful in
organizing teachers, parents, and the general public and securing their
appearance at public meetings of the School Committee.  Ms. Ross's
actions have often been instrumental in persuading the School Committee
to modify or reverse decisions made by the Superintendent and his staff.

     7.  During her employment with the Portland School System, Ms. Ross
has consistently received excellent performance evaluations, from her
superiors, for her classroom teaching.

     8.  Over the past three years, the Portland School System has been
faced with a severe financial crisis and has been forced to trim its
budget by over Three Million Dollars.

                                  -5-

     9.  In an effort to minimize the effect of the financial situation,
noted in the preceding paragraph, upon its employees, the Portland
School Committee's first consideration, in implementing staff
reductions, was to accomplish the same through attrition rather than
through layoffs.  This policy of reduction by attrition involved
resignations and retirement of staff members.  Three early retirement
incentive plans were adopted to further spur attrition.

    10.  Since reduction of staff by attrition did not, during the past
three years, result in sufficient financial savings, the School
Committee then resorted to a policy of non-renewal of probationary
employees.

    11.  When it became evident that the actions, noted in paragraphs 9
and 10 hereof, would be insufficient to offset the budgetary cuts faced
by the School Committee, the Committee decided that it would have to lay
off some continuing contract (non-probationary) employees.  To minimize
the number of employees laid off, the School Committee and the
Superintendent attempted to transfer employees, to the maximum extent
feasible within the Portland School System, from positions, whose duties
could be discontinued or absorbed by other employees, to the positions
vacated by resigning, retiring, or laidoff probationary employees.

    12.  Between 1979 and 1982, there were 85 secondary school staff
layoffs and 142 secondary school staff transfers in the Portland School
System.  The great majority of said transfers were involuntary; that is
to say, they were not initiated by the affected employees.

    13.  When it became evident, in the spring of 1981, that continuing
contract teachers might have to be laid off, the Superintendent and his
staff developed a "points list," in an attempt to quantify the

                                  -6-

qualitative abilities of the professional teaching staff of the Portland
School System.

    14.  The Superintendent recommended to the School Committee that said
"points list" be used to determine which continuing contract teachers
were to be laidoff, in the Spring of 1981.

    15.  Ms. Ross, through appearances and statements made through the
media, was able to rally a large group of teachers, parents, and members
of the public to attend a public meeting of the School Committee.

    16.  At the School Committee meeting, mentioned in the preceeding
paragraph, Ms. Ross, other teachers, parents, and members of the public
spoke at length about inaccuracies in the "points list" and about the
unfairness of using said list to lay off any teacher.  The Committee,
initially, modified said list and, subsequent to further argument from
Ms. Ross and others, decided to abandon the list, except in the case of
one teacher who was laid off.

    17.  During the spring of 1981 and in order to save money, the
administration of the Portland School Department decided to discontinue
the position of department head in the high schools (each department
head supervised the teachers in one academic discipline) and to replace
said positions with those of cluster coordinator, who would each
supervise teachers in two or more academic disciplines.

    18.  The action, described in the preceding paragraph, resulted in a
good deal of debate and animosity, both between the Portland Teachers
Association and the Portland School System administration and within the
Portland Teachers Association, between the former department heads and
the new cluster coordinators and each group's respective supporters.

                                  -7-

    19.  During the negotiations which resulted in the 1981-1984
collective bargaining agreement between the Portland Teachers
Association and the Portland School Committee, the negotiators for each
side exchanged proposals and counter-proposals concerning the salary
differential to be paid to the cluster coordinators.  At least during
the mediation process, if not beyond, the negotiations were conducted in
"blackout" conditions, where neither team was to discuss the bargaining
with anyone who was not immediately involved in the bargaining process.

    20.  Sometime after the conclusion of mediation and before the final
tentative agreement on the successor collective bargaining agreement was
reached, Assistant Superintendent for Secondary Education Eve Bither did
discuss the specific cluster coordinator salary differential offers and
counter-offers with a person who was not directly involved in the
bargaining process.  Said offers and counter-offers, as a result, became
known to at least one of the cluster coordinators.

    21.  Said cluster coordinator then confronted Ms. Ross, as President
of the Portland Teachers Association, and stated that she had lost all
confidence in Ms. Ross and terminated what had been a close personal
friendship.

    22.  Upon learning of the "leak" in bargaining information, cited in
paragraph 20 above, Ms. Ross insisted that Ms. Bither apologize for
having revealed said information, as a condition precedent to continued
negotiations.

    23.  Although feeling that she had done no wrong in revealing the
information, Ms. Bither, in order to avoid embarrassment to the Portland
Teachers Association's negotiators, apologized for the "leak" to the

                                  -8-

Portland Teachers Association, the former department heads, and the new
cluster coordinators, at both Portland High School and at Deering High
School, in the fall of 1981.

    24.  Over the past 1 1/2 years, Ms. Ross served on an Evaluation Task
Force, chaired by Dr. Greer and whose members included teachers,
administrators, and members of the general public.  During Task Force
meetings, Ms. Ross and Dr. Greer often had lengthy and heated
discussions and disagreements over several issues before the Task
Force.  Dr. Greer chided Ms. Ross for talking with and passing notes to
another Association representative on the Task Force, during meetings.

    25.  During the 1981-1982 school year, Ms. Ross repeatedly failed to
perform non-teaching "supervisory" duties at Portland High School.  Ms.
Ross was scheduled to supervise the cafeteria for two periods each day
and to patrol a hallway at the school one period each day.  Most of the
other English teachers at Portland High School, like Ms. Ross, had three
assigned periods of "supervisory" duties each day.

    26.  Ms. Ross complained that 40 degree temperatures in the hallways
were injurious to her health and precluded her performing her hallway
duties.  After receiving a doctor's note to this effect, Ms. Ross was
relieved of her hallway duty and assigned to oversee a study hall, one
period each day.  Ms. Ross faithfully discharged her study hall
responsibilities.  Dr. Greer, eventually, ordered that the heat be
turned back on in the hallways of Portland High School.

    27.  On one occasion during the 1981-1982 school year, Ms. Ross
ignored a fire alarm at the school and continued teaching her class.
Upon being advised to do so by the Assistant Principal, Ms. Ross
escorted her class from the building.  As had been the case on many

                                  -9-

previous occasions. the alarm was a false alarm.

    28.  On March 19, 1982, a water pipe burst in an area of Portland
High School, near to where Ms. Ross was attempting to conduct a class.
Students in the area of the burst pipe were boisterous and Ms. Ross,
finding it impossible to continue the class, dismissed her students and
sent them home, approximately 1/2 hour prior to the end of the school
day.  Ms. Ross did not, as was normal practice, consult with or even
inform either the Principal or the Assistant Principal, prior to
dismissing her students.  Other classes, in the area of the burst pipe,
were conducted until the end of the school day.

    29.  The Principal of Portland High School gave Ms. Ross a written
reprimand, for the conduct noted in paragraph 25 hereof, on January 5,
1982.  Ms. Ross filed a grievance over said reprimand and the grievance
was settled, by agreement of the parties at the Superintendent's level.

    30.  As a result of the facts cited in paragraphs 25, 27, 28 and 29
hereof, a poor working relationship developed between Ms. Ross and the
Principal of Portland High School.

    31.  During her last year at Deering High School, the 1977-1978
school year, Ms. Ross consistently had problems discharging the type of
"supervisory" responsibilities as were noted in paragraph 25 hereof.

    32.  Although a member of the Portland Teachers Association during
her service at Deering High School, Ms. Ross was not prominent at all in
union affairs, at that time.

    33.  As a result of the facts contained in paragraph 31 above, Ms.
Ross was involuntarily transferred from Deering High School to King
Junior High School in 1978 for the 1978-1979 school year.

    34.  During the past four years, the student enrollment at Portland

                                -10-

High School has declined by approximately 100 students per year, from
1709 students to approximately 1328 students for the 1982-1983 school
year.

    35.  As a result of the declining enrollment at Portland High School,
the Assistant Superintendent for Secondary Education recommended that 1
English position, 1 mathematics position, and 1 social studies position
be eliminated at Portland High School.  The Superintendent transmitted
said recommendation to the School Committee and, on April 28, 1982, said
Committee voted to implement said staff reductions.  Ultimately, for the
reason stated above, two English positions had to be eliminated at
Portland High School.

    36.  During the spring of 1982, one probationary teacher resigned at
Deering High School and the contract of one probationary teacher at King
Middle School was terminated.  These events resulted in two openings for
English teachers within the Portland School System:  one at Deering High
School and one at King Middle School.

    37.  Since there was a surplus of 2 English teachers at Portland High
School and 2 English teacher vacancies within the Portland School
System, the Superintendent of Schools and the Assistant Superintendent
for Secondary Education decided to transfer 2 English teachers from
Portland High School to fill the 2 vacancies.

    38.  During the spring of 1982 and because of the financial problems
experienced by the Portland School System, the Superintendent
reluctantly recommended that 5 high school English positions be
eliminated.

    39.  Among the incumbent employees. occupying the positions mentioned
in the preceeding paragraph and selected for layoff, were Janet Ross,

                                -11-

Ms. Ross's sister, and Maryann Pendleton, the wife of the President of
the Portland Administrators Association.  Although Ms. Pendleton had
relatively little seniority with the Portland School System, Janet Ross
had 2 more years of seniority with the Portland School System than did
several English teachers who were not recommended for layoff.

    40.  The Portland School Committee held a public meeting to discuss
and consider the Superintendent's layoff proposal.  Ms. Ross, several
teachers, parents, and members of the public attended said meeting and
spoke against the layoffs.  The Portland School Committee then voted not
to lay off any of the English teachers.

    41.  Article XXVII(G) of the 1981-1984 collective bargaining
agreement between the Portland Teachers Association and the Portland
Superintending School Committee of the City of Portland provides:

        "The President of the Association shall be entitled to a
   leave of absence for the duration of the President's term
   without loss of benefits or salary step or scale.  Leave for a
   teacher serving as President shall consist of two-fifths of the
   regular teaching or work day for an elementary teacher or other
   personnel and two teaching periods for a secondary teacher.  Any
   such leave scheduling shall be mutually arranged between the
   President and the building principal and shall be at the
   beginning or end of the work day.  Planning periods shall not be
   considered as time off for purposes of this article and shall
   not be used for Association business."

    42.  Since the normal teaching load of English teachers at Portland
High School. during the 1981-1982 school year, was four classes per day
per teacher, Ms. Ross taught 2 classes per day, under the language of
the collective bargaining agreement article cited in the preceding
paragraph.

    43.  In light of the facts noted in paragraphs 8, 9, 10, 11, 12, 34,
35, 36 and 37 above, the Assistant Superintendent for Secondary
Education decided, in June, 1982, to transfer a Mr. Coyne to fill the

                                -12-

vacancy at Deering High School and Ms. Ross to fill the vacancy at what
was now called the King Middle School.  The King Middle School was
formerly called the King Junior High School.  Neither transfer was a
voluntary transfer.

    44.  The transfers, mentioned in the preceding paragraph, did not
result in a loss of earnings or other benefits for the affected
employees.

    45.  The transfer, mentioned in paragraph 43 hereof, resulted in a
change of working conditions for Ms. Ross since she would have to
develop a new curriculum for the seventh grade English position at King
Middle School, without being paid additional compensation therefor.

    46.  Mr. Coyne, a ninth grade English teacher at Portland High
School, had previously taught ninth grade English at Jack Junior High
School.  During the 1981-1982 school year, Mr. Coyne had been on a
sabbatical leave of absence from the Portland School Department;
therefore, his transfer to Deering High School did not result in any
staff disruption at Portland High School.

    47.  Ms. Ross was not considered as a candidate for transfer to
Deering High School because of her prior problems with "supervisory"
responsibilities at that school, as noted in paragraphs 31 and 33, supra.

    48.  During her one year of service at King Junior High School, Ms.
Ross received an unqualifiedly excellent performance evaluation from the
school's Principal, Mr. Stokes.  Mr. Stokes is still the Principal of
the King Middle School.

    49.  While teaching at King Junior High School, Ms. Ross enjoyed an
excellent working relationship with both the Principal and the Assistant
Principal, Mr. Pressey.  Mr. Pressey is still the Assistant Principal of

                                -13-

the King Middle School.

    50.  On June 18, 1982, Ms. Bither and the Principal of Portland High
School met at Portland High School with Ms. Ross and her union
representative, Mr. Pierson.  At said meeting, Ms. Bither informed Ms.
Ross of her decision to transfer Ms. Ross to the King Middle School for
the following school year.

    51.  Ms. Bither, at the meeting mentioned in the preceding paragraph,
gave the following as the reasons for her decision:

     a.  Ms. Ross had a reduced teaching load;

     b.  Ms. Ross had had a successful year at King Junior High
         School;

     c.  Ms. Ross had a good relationship with the administrators at
         King Junior High School;

     d.  Ms. Ross related well to the age group of the students she
         would be teaching at King Middle School: and

     e.  Ms. Ross had had an unhappy year at Portland High School.
         
    52.  In response to Ms. Bither's explanation, cited in the preceding
paragraph, Ms. Ross stressed that she had developed a speech program at
Portland High School and was the only person then teaching speech at
that school.

    53.  Ms. Bither, in response to Ms. Ross's statement, noted in the
preceding paragraph, stated that only 22 students had signed up to take
speech for the next year and that other teachers, who had taught speech
in the past, could do so the next year.

    54.  Mr. Pierson and Ms. Ross then accused Ms. Bither of transferring
Ms. Ross only because of her union activities.  The only reason Ms. Ross
carried a lighter teaching load was the leave time provided to the

                                -14-

President of the Union by the collective bargaining agreement.  Ms.
Bither denied Mr. Pierson's and Ms. Ross's allegation concerning union
activities playing any part in the transfer decision.

    55. At the end of the meeting, Ms. Bither agreed to meet again with
Ms. Ross, on June 21, 1982, to discuss the transfer decision further.

    56.  On June 21, 1982, Ms. Ross; Martin Ridge, her personal attorney;
Beth Supranovich, President of the Maine Teachers Association; Dr. John
Marvin, Executive Director of the Maine Teachers Association; Mr.
Pierson, grievance chairperson for the Portland Teachers Association;
Sharon Bresler, chief negotiator for the Portland Teachers Association;
and John Alfano, the District 2 UniServ Director for the Maine Teachers
Association, met at Ms. Bither's office at the Portland School
Department Central Office with Ms. Bither and the Principal of Portland
High School.

    57.  During the meeting mentioned in the preceding paragraph, Mr.
Ridge asked Ms. Bither several questions concerning the reasons for the
transfer decision.  Ms. Bither declined to answer most of Mr. Ridge's
questions; however, she did deny that the transfer was in any way
occasioned by Ms. Ross's union activities.

    58.  Ms. Ross then appealed the transfer decision to the
Superintendent of Schools.

    59.  On June 23, 1982, Superintendent Greer, Ms. Bither, and Polly
Ward, Personnel Administrator for the Portland School System, met in Dr.
Greer's office with Ms. Ross, her attorney Mr. Ridge, and Attorney
Howard Reben.

    60.  At the meeting mentioned in the preceding paragraph.  Dr. Greer
gave the following reasons as the justification for the transfer

                                -15-

decision:

    a.  The financial situation of the Portland School System;

    b.  Declining enrollments at Portland High School, resulting in
        a surplus of two English teachers;

    c.  An opening at King Middle School for an English teacher;

    d.  Ms. Ross's unhappy time at Portland High School;

    e.  Ms. Ross's successful year at King Junior High School;

    f.  Ms. Ross's good relationship with the administrators at
        King;

    g.  Ms. Ross's problems with the administration and with staff
        members at Portland High School; and

    h.  Since Ms. Ross began as a Title I reading aide, it would be
        appropriate to transfer her to a Title I school.
        
    61.  In response to Ms. Ross' questions, Dr. Greer stated that the
"staff problems" at Portland High School related to the cluster
coordinator, mentioned in paragraph 21 hereof.  Dr. Greer then promised
to investigate this reason and the facts behind it.

    62.  In the course of the investigation, noted in the preceding
paragraph, Dr. Greer received conflicting reports of what had happened;
therefore, he rejected this reason as providing any justification for
the transfer.

    63.  Ms. Ross indicated that, although at one time she had been hired
with Title I funds, she had taught mathematics and had not been a
reading aide.  Dr. Greer then rejected the proffered reason as providing
any justification for the transfer.

    64.  At the close of the meeting, Dr. Greer promised that a new
search would be undertaken to find a volunteer to fill the opening at
the King Middle School.  Dr. Greer placed a caveat on the search,

                                -16-

however, that even if someone volunteered, he could reject the
volunteer.  All voluntary transfers in the Portland School System are
made on this basis.

    65.  One English teacher at Portland High School reluctantly
volunteered to be transferred to the King Middle School.

    66.  The Assistant Superintendent for Secondary Education, with the
approval of the Superintendent of Schools, rejected said volunteer's
offer.  Valid educational reasons mandated that the said volunteer,
mentioned in the preceding paragraph, remain and teach at Portland High
School for the following school year.

    67.  Ms. Ross's transfer to the King Middle School made good
educational sense because she possesses many special qualities which
make her especially effective as a seventh grade teacher.

    68.  Although several other English teachers at Portland High School
had more junior high school experience than Ms. Ross, valid educational
and/or extracurricular reasons mandated that they remain and teach at
Portland High School for the following school year.

    69.  On July 6, 1982, Dr. Greer wrote a letter to Ms. Ross affirming
the transfer decision.  The reasons outlined by Dr. Greer in support of
his decision, were as follows:

         "I can appreciate your desire, and indeed that of any
    teacher, to be transferred only upon request.  That is not
    always possible, however.  This year, due to the severe budget
    reductions forced upon the school department and the large
    number of staff reductions, transfers have unfortunately become
    unavoidable.  Yours is one of many such transfers.

         "At Portland High School specifically, Mrs. Bither had no
    choice but to transfer one English teacher to King Middle
    School for the coming year.  It was Mrs. Bither's professional
    judgement, in which I concur, that you should be selected for
    that transfer based upon your previous and successful
    experience at King and the many excellent special qualities you
    have to offer students at the middle school level.  In

                                -17-

    addition the past year at Portland High School has, as you
    know, been less than ideal in terms of harmonious relations
    with the administration.  I am hopeful that a different
    environment will provide a fresh start for you in addition to
    meeting the needs of the school system."

    70.  During a discussion with Dr. Greer, concerning the transfer, in
the spring of 1982, Ms. Ross asked: "Is this a life sentence?"  Dr.
Greer responded: "I don't punish people eternally."

    71.  On July 27, 1982, the Complainants herein filed a complaint
pursuant to Rule 80B of the Maine Rules of Civil Procedure against the
Respondents herein, to seek review of Ms. Ross's involuntary transfer by
the Cumberland Superior Court.

    72.  On July 9, 1982, the Portland Teachers Association filed a
grievance, pursuant to Article X of the applicable collective bargaining
agreement between the Portland Teachers Association and the Portland
School Committee, to challenge Ms. Ross's involuntary transfer, which is
the subject matter of this action.
                                   

                              DECISION

     The involuntary transfer in this case does not rise to the level of
being an imposition of discipline by the Employer against Ms. Ross.  The
facts do, however, indicate that the transfer resulted in Ms. Ross'
having to develop a new curriculum for the seventh grade English
position at the King Middle School and, therefore, involved a change in
Ms. Ross' working conditions.  The Union has alleged that said change in
working conditions was occasioned by the Employers' discrimination
against Ms. Ross because of her Union activities.  The Employers have

                                -18-

argued, in the alternative, that the Union has failed to establish a
prima facie case of discrimination in this matter or, if the Union did
establish such a prima facie showing, Ms. Ross's transfer was effected
for legitimate educational reasons and would have occurred regardless of
Ms. Ross's Union activities.  The Board is, therefore, clearly faced
with a situation where the Employer's actions may have resulted from
"mixed motives":  some legitimate and some which are contrary to the Act.

     In considering such "mixed motive" cases, this Board has recently
adopted, as the controlling analysis therein, the Wright Line standard,
promulgated by the National Labor Relations Board, Wright Line and
Bernard R. Lamoureux, 251 NLRB 1083 (1980), which was later upheld by
the Supreme Court of the United States, National Labor Relations Board
v. Transportation Management Corp., ____ U.S. ____, 103 S.Ct. 2469 (June
15, 1983).  Allen C. Holmes, et al. v. Town of Old Orchard Beach, et
al., MLRB No. 82-14, at 11 (Sept. 27, 1982).  In Transportation
Management Corp., supra, Mr. Justice White, writing for a unanimous
Court, described the National Labor Relations Board's Wright Line test
as follows:

    "The Board held that the General Counsel, of course, had the
    burden of proving that the employee's conduct protected by
    Section 7 was a substantial or a motivating factor in the
    discharge.  Even if this was the case, and the employer failed
    to rebut it, the employer could avoid being held in violation
    of Sections 8(a)(1) and 8(a)(3) by proving by a preponderance
    of the evidence that the discharge rested on the employee's
    unprotected conduct as well and that the employee would have
    lost his job in any event.  It thus became clear, if it was not
    clear before, that proof that the discharge would have occurred
    in any event and for valid reasons amounted to an affirmative
    defense on which the employer carried the burden of proof by a
    preponderance of the evidence."

103 S.Ct., at 2473 (footnotes omitted).  It is important to note that

                                -19-

"Section 7," 29 U.S.C. Section 157, cited by the.United States Supreme
Court above, is analogous to Section 963 of the Act and Sections
118(a)(1)," 29 U.S.C. Section 158 (a)(1), and "8(a)(3)," 29 U.S.C.
Section 158(a)(3), are analogous to Sections 964(1)(a) and (b),
respectively.  These latter two sections of the Act were allegedly
violated by the Employers herein.  The United States Supreme Court, 103
S.Ct., at 2475, went on to uphold the validity of the National Labor
Relations Board's use of the Wright Line test in "dual motive"
situations.  Having adopted the same in the Old Orchard Beach, supra,
case, we will apply the Wright Line test to the facts in this "dual
motive" case.

     Our first line of inquiry, under the Wright Line test, is whether
the Union has established, by a preponderance of the evidence, that Ms.
Ross's union activity was a motivating factor in the transfer decision.
We hold that the Union has met its burden of establishing a prima facie
case.  The Employers' action, in transferring Ms. Ross involuntarily
from Portland High School to the King Middle School, was motivated by
the Employers' anti-union animus.  Our holding is mandated by three
separate facts.  First, at the June 18, 1982 meeting, the Assistant
Superintendent for Secondary Education informed Ms. Ross that one of the
reasons for the transfer was that Ms. Ross taught fewer academic courses
than did the other English teachers at Portland High School.  The sole
reason that Ms. Ross taught only two courses was that, as the President
of the Union, the applicable collective bargaining agreement afforded
her two teaching periods per day leave to perform Union functions.  The
transfer was, therefore, based upon Ms. Ross's Union activities.
Second, the reasons given to Ms. Ross, as the grounds for the transfer,
changed from those given at the June 18th meeting, at the June 23rd

                                -20-

meeting and again were different in the July 6th letter from the
Superintendent.  We have, in Teamsters Local Union No. 48 v. Baker Bus
Service, Inc., MLRB No. 79-70, at 7 (March 3, 1980), held that reasons,
proffered by an employer to justify its actions, may be deemed
pretextual if, among other factors, said stated reasons vary during
successive explanations thereof.  Third, the Superintendent's comment,
in response to Ms. Ross's question about the transfer being a "life
sentence," that "I don't punish people eternally," may have been
illustrative of his subjective intent rather than just an unfortunate
choice of words.  This comment certainly illustrates that Dr. Greer
might have viewed the transfer as punitive.

     Several other facts in this case support our above holding.  Ms.
Ross, in the opinion of both management officials and bargaining unit
employees, has been an aggressive, articulate, and effective Union
President.  As a result of Ms. Ross's efforts in mobilizing the support
of teachers, parents, and members of the public, the Portland School
Committee has often been persuaded to modify or reverse the decisions of
the Superintendent and his staff.  Two such occasions were the "points
list" episode, in the spring of 1981, and the staff reduction
controversy, involving Ms. Ross's sister among others, in the spring of
1982.  Since Ms. Ross's sister had a good deal more seniority than
several staff members who were not slated to be laid off, the decision
to lay her off can be viewed as an attempt to retaliate against Ms. Ross
through her sister.  Another relevant factor concerns Ms. Bither's
apology for the negotiations "leak."  Said apology was made as a result
of Ms. Ross's demand therefor, as a condition precedent to resuming
negotiations.  In making the public apology to the affected employees,

                                -21-

Ms. Bither sought to avoid embarrassment for the Union's negotiators.
Ms. Bither did not feel that she had violated the "blackout" or any
other rules, yet she made the public apology.  Finally, Dr. Greer
evinced some animosity against Ms. Ross at the Evaluation Task Force
meetings, where Ms. Ross was representing the Union's position on the
questions at issue.  Each of these situations either demonstrates
possible anti-union animus or could, reasonably, be interpreted as
potentially giving rise thereto.  Although not central nor critical to
the validity of our holding, the above observations do further
substantiate the Union's prima facie case.

     At the outset of these proceedings, the Employers moved the Board to
dismiss the Complaint herein on the ground that it failed to state a
claim upon which relief may be granted.  Having held, above, that the
Union has established a prima facie case that the Employers have
violated Sections 964(1)(A) and (B) of the Act, we must deny the
Employers' motion to dismiss the Complaint.

     Having held that the Complainants have established, by a
preponderance of the evidence, a prima facie case that the Employers'
anti-union animus was a motivating factor in the decision to transfer
Ms. Ross, we must now consider the Employers' affirmative defense, under
the Wright Line standard.  The Employers, at pages 20 through 23 of
their brief, have argued that Ms. Ross would have been transferred in
any event, regardless of her union activities.  If proven by a
preponderance of the evidence, the Employers' allegation constitutes an
affirmative defense which "permits an employer to avoid being
adjudicated a violator by showing what his activities would have been
regardless of his forbidden motivation."  NLRB v. Transportation

                                -22-

Management Corp., supra, ____ U.S., at ____, 103 S.Ct., at 2474. After
a thorough examination of the record in this case, we hold that the
Employers have established ample legitimate justification for their
decision to transfer Ms. Ross.

     Extensive evidence was received to warrant the reductions in staff
by attrition, non-renewal of probationary employees, involuntary
transfers, and, where the same could not be avoided through
implementation of one of the foregoing, layoffs of continuing contract
teachers which have been experienced in the Portland School System.  The
Portland School Department's budget has been cut by approximately One
Million Dollars per year, over the last three years, for a total budget
cut of approximately Three Million Dollars, during that time.  In an
active effort to minimize the effect of said budget cuts on its staff,
the Employers have implemented the progressive range of personnel
actions, noted at the outset of this paragraph.  Three early retirement
incentive plans were adopted to spur such retirement and to foster staff
reduction through attrition.  Over the past three years, the
above-mentioned budget cuts have resulted in the transfer of 142
secondary staff members and the layoff of 85 secondary personnel in the
Portland School System.  Secondary employees, in the foregoing context,
are primarily those who teach at the middle school and the high school
levels, as distinguished from elementary school staff.  Over the past
four years, the student enrollment at Portland High School declined from
1709 to 1328 students.  In the spring of 1982, said declining student
population resulted in three staff reductions having to be made at
Portland High School:  1 English teacher, 1 mathematics teacher, and 1
social sciences teacher had to be transferred, laid off, or otherwise

                                -23-

removed from Portland High School.  When all course enrollment
projections and student course election information had been reviewed,
there was a surplus of two English teachers at Portland High School for
the 1982-1983 school year.  Due to other personnel actions, two English
teacher vacancies existed in the Portland School System for the
1982-1983 school year:  one vacancy at the King Middle school and one at
Deering High School.

     Ample legitimate justification was established to warrant the
Employers' decision to transfer Ms. Ross to fill the King Middle School
vacancy.  Ms. Ross had, during the 1981-1982 school year, taught two
speech classes at Portland High School.  During the spring of 1982, only
22 students had signed up for speech for the next school year.
Secondly, Ms. Ross had repeatedly failed to perform her assigned
non-instructional hallway and cafeteria "supervisory" duties, at
Portland High School during the 1981-1982 school year.  While employed
at Deering High School, four years previously, Ms. Ross had also
repeatedly failed to perform such "supervisory" duties.  As a result
thereof, Ms. Ross had been involuntarily transferred to the King Junior
High School.  Said transfer predated Ms. Ross's "prominent" involvement
in union activities.  This prior transfer, under similar circumstances
and without a hint of anti-uinon animus, clearly substantiates that the
1982 transfer was justified by legitimate motivation.  Ms. Ross, during
the 1981-1982 school year, ignored a fire alarm and continued teaching
her class.  On another occasion during the same academic year, Ms. Ross,
without first consulting with the high school administration, allowed
her students to leave school prior to the end of the normal school day.
These latter two incidents, together with Ms. Ross's repeated failure to

                                -24-

perform her assigned "supervisory" duties, were injurious to Ms. Ross's
professional relationship with the administrators at Portland High
School.  This poor working relationship is a legitimate reason for Ms.
Ross's transfer.  Ms. Ross's transfer to the King Middle School was also
warranted by valid educational and personnel relations reasons.  Ms.
Ross possesses many fine qualities which make her an effective teacher
at the middle school level.  Ms. Ross projects well, has the ability to
gain and to retain the attention of middle school students, and she does
not have any disciplinary problems at that level nor any problems in
motivating middle school students.  Ms. Ross, in the past, had been an
extremely successful middle school teacher.  Finally, Ms. Ross had had
an excellent working relationship with the King Middle School
administrators, during her previous tenure at that school.  The same
principal and assistant principal, with whom Ms. Ross had worked at King
in the past, remained at King for the 1982-1983 school year.  Having
held that the transfer decision was motivated by several legitimate
reasons, we will dismiss those portions of the Complainants' complaint
alleging that the transfer was made in violation of Sections 964(1)(A)
and (B) of the Act.

     The final allegation in the complaint in this case is that the
decision to transfer Ms. Ross was made in violation of Section 964(1)(C)
of the Act.  Said Section provides:

     "Public employers, their representatives and their agents are
     prohibited from: . . .
          Dominating or interfering with the formation, existence or
     administration of any employee organization;"

We have defined the conduct prohibited by this Section as follows:

     "[T]his section of the Act is directed at the evil of too much
     financial or other support of, encouraging the formation of, or
     actually participating in, the affairs of the union and

                                -25-

     thereby potentially dominating it."

Teamsters Local Union No. 48 v. City of Calais, MLRB No. 80-29, at 5
(May 13, 1980).  See also, Sabattus Teachers Ass'n. v. Sabattus School
Committee, MLRB No. 79-35, at 4-5 (June 21, 1979).  The evidence in this
case does not demonstrate any attempt by the Employer to provide
financial or other support to the Union, to participate in the Union's
activities, nor to otherwise attempt to dominate the Union.  We will,
therefore, dismiss the portion of the Complainant's complaint alleging a
violation of Section 964(1)(C) of the Act.

                                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:

         That the prohibited practices complaint, filed by Jeannie
         Ross and the Portland Teachers Association on July 29, 1982,
         in MLRB Case No. 83-04, be and hereby is dismissed.

Issued at Augusta, Maine, this 29th day of August, 1983.

                                         MAINE LABOR RELATIONS BOARD


                                         /s/____________________________8/23/83
                                         Donald W. Webber, Alternate Chairman


                                -26-



                                        /s/____________________________8/24/83
                                         Don R. Ziegenbein
                                         Employer Representative



                                          /s/___________________________8/29/83
                                          Harold S. Noddin
                                          Employee Representative


The parties are advised of their right pursuant to 26 M.R.S.A. Section
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 of the date of this decision.



                                -27-