Case No. 08-IR-01
Issued: January 15, 2009







	  On September 20, 2008, the Lewiston Education Association 
and the Lewiston School Committee jointly filed a petition for an
interpretive ruling on whether certain language in the parties'
collective bargaining agreement constitutes educational policy
within the meaning of 26 M.R.S.A. § 965(1)(C).[fn]1  In describing 
the obligation to bargain, §965(1)(C) states "public employers of
teachers shall meet and consult but not negotiate with respect to
educational policies."  The parties submitted briefs to the Board
on November 10, 2008, and reply briefs on November 24, 2008.  The
School Department was represented by Daniel C. Stockford, Esq.,
and the Association was represented by Joseph A. Stupak, Jr.  The
Board, made up of Peter T. Dawson, Chair; Wayne Whitney, Employee
Representative; and Karl Dornish, Employer Representative, met on
December 15, 2008, to deliberate on this matter.
     During the negotiations for the current 2006-2009 collective
bargaining agreement, the Lewiston Education Association and the
Lewiston School Department disagreed whether two specific
provisions should remain in the agreement.  The Lewiston School
Committee's position was that both of the sections constituted 
     1  The parties initially filed this petition on August 23, 2007,
but agreed to hold in abeyance. It was refiled on September 20, 2008. 

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educational policy and should be removed from the agreement; the
Lewiston Education Association argued that the provisions were
not educational policy and should remain in the collective
bargaining agreement.  The parties reached a compromise
settlement in which the provisions remained in the 2006-2009
collective bargaining agreement and they agreed to submit the
issue to the Maine Labor Relations Board for determination. 
     The two provisions at issue are Article VIII, Paragraph A,
Sections 4 and 5 of the 2006-2009 collective bargaining
agreement, which state:
     4. Middle School and High School teachers shall not be
     assigned class loads requiring more than three (3)
     individual preparations at any one time; provided that
     two (2) or more sections of any course (such as
     academic biology and career biology) as a single course
     or French I (French speaking and French I non-French
     speaking) as a single course or college chemistry and
     vocational chemistry as a single course shall
     constitute a single preparation notwithstanding the
     fact that the sections may not be working on the same
     assignments at any given time; provided, however, that
     at the discretion of and with the concurrence of an
     individual teacher and administrator, a teacher may
     choose to accept an assignment that would require more
     than three (3) preparations as defined above.

     5. Instructional time in the Middle School and High
     School shall not exceed 260 minutes per teacher, per
     day with the exception of those involved in block
     schedule teaching assignments such as vocational
     instruction whose assignments shall not exceed 290
     minutes per day per teacher.  Instructional time in the
     elementary schools shall not exceed 300 minutes, per
     teacher, per day; such minutes to include appropriate
     subject areas according to the Instructional Schedule
     as promulgated from time to time by the School
     Committee.  Instructional time shall not include the
     periods in which a teacher is involved in supervising
     students during recess, lunch and other periods that
     are not clearly instructional in nature.

     The parties' joint petition for an interpretive ruling
presents the following explanation of the situation: 

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          In the view of the School Committee, the language
     of these articles create practical difficulty in
     operating the School Department's educational program,
     and it remains an important priority of the School
     Department that these articles be removed from the
     Collective Bargaining Agreement.  At the same time, the
     view of the Association is that the disputed language
     should remain in the Collective Bargaining Agreement. 
     The Committee's insistence upon removal of the disputed
     language on the ground that it constitutes educational
     policy, and the Association's insistence on maintaining
     the language, are likely to lead to prohibited practice
     complaint proceedings in which one or both parties
     accuses the other party of a failure to bargain in good
     Although the statute is not very specific on this
subject,[fn]2 the Board has consistently held that interpretive
rulings are a mechanism that enable a party to receive an
indication from the Board on whether a contemplated course of
action would violate the law.  See, e.g., Lewiston School
Committee, Petition for Interpretive Ruling, No. 06-IR-01 (April
20, 2006).  Section 41 of the MLRB rules on prohibited practices
deals specifically with requests for an interpretive rulings. 
The initial portion of §41 describes those circumstances for
which an interpretive ruling is appropriate:
     § 41.  Interpretive Rulings.  An interpretive ruling is
     a means for determining specific questions as to the
     prospective rights, obligations, or liabilities of a
     party when controversy or doubt has arisen regarding
     the applicability of a specific statute, Board order or
     rule.  A petition for an interpretive ruling may not be
     used to resolve factual disputes between adversaries
     and may not be used as a substitute for other remedies
     provided by the collective bargaining laws.  

     2  The last three sentences of §968, sub-§ 3, dealing with the
Board's rulemaking power, simply state "The board shall also, upon its
own initiative or upon request, issue interpretative rules interpret-

ing the provisions of this chapter.  Such interpretative rules shall
be advisory only and shall not be binding upon any court.  Such
interpretative rules must be in writing and available to any person
interested therein."

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MLRB Rules, Ch. 12, §41.

     In view of this situation, we agree that the circumstances
in this case are appropriate for an interpretive ruling.    

     The Association's primary argument, as stated in its brief,
is that "substantial changes in public education and the teaching
profession over several decades warrant a contemporary consider-
ation of the issue, and an interpretation that the language [at
issue] constitutes teachers' working conditions." (Association
Brief at 3).  The Association argues that even if the Board
previously concluded that similar language concerning preparation
periods and instructional time constituted educational policy,
thirty-five years of "dramatic changes in the delivery of
education" supports its position that the Board should revisit
the issue.  The Association asserts that major federal and state
policy developments have changed expectations for both school
boards and teachers in terms of accountability and efficiency. 
Rather than issuing a ruling that reflects cases decided in the
1970s and 1980s, the Board should consider a "contemporary
balance" between working conditions and educational policy. 
     The Lewiston School Department contends that the matter has
already been addressed by the Board in various cases holding that
preparation periods and instructional time are educational
policy.  Sanford Federation of Teachers v. Sanford School
Committee, No. 84-13 (March 20, 1984), at 5 (teacher preparation
periods are educational policy); MSAD #43 Board of Directors v.
MSAD #43 Teachers Association, No. 79-36 (August 24, 1979) (daily
preparation periods are educational policy); Lewiston Teachers
Association v. Lewiston School Committee, No. 86-04 at 19
(June 30, 1986)(the length of teacher work days, the number of 

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preparation periods (if any), and the amount of instructional
time are all matters of educational policy).  The Employer also
cites the Biddeford decision, even though the particular subjects
at issue here were not discussed by the Law Court.  In Biddeford,
Justice Wernick stated,
          Thus, the length of the teachers' working day is
     closely and heavily interwoven with judgments bearing
     upon the welfare of the students,- as reflected in the
     ultimate quality of their education and the extent to
     which it may be improved or weakened by use of various
     types of substitutes, technological or otherwise, for
     the living presence and active participation of
     teachers. Such foundational educational value judgments
     cannot reasonably be subordinated to the overlay of
     teacher "working conditions", and for this reason, the
     length of the teacher's working day must be held,
     fundamentally, that kind of "educational policies"
     subject-matter which was legislatively intended to
     remain outside the scope of mandatory collective

City of Biddeford v. Biddeford Teachers Ass'n, 304 A.2d 387, 421
(1973).  The School Department argues that both sections at issue
restrict the school in scheduling classes and assigning teachers
during the school day and consequently affect the length of the
teacher workday.    
     The essence of the issue before us is whether it is
appropriate to overrule long-standing precedent holding that
preparation periods and instructional time are matters of
educational policy.  Beyond the obvious factors related to the
non-binding nature of interpretive rulings generally, we conclude
that it is not appropriate to overrule established precedent in
these circumstances.  The Association's argument rests on a bare
assertion that there have been "dramatic changes" in the delivery
of education.  We do not doubt the truth of that assertion, as
there have been major changes in all facets of our society in the
past 35 years.  We have not, however, had the opportunity to
review any evidence supporting that claim nor how those changes 

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impact educational policy.  The Association asserts that these
changes will produce a different outcome when the Board finds the
"contemporary balance" between educational policy and working
conditions.  Regardless of whether the Association intends to
argue merely that the facts support a different outcome or that a
different analysis should be used, it is not appropriate to
address the matter through an interpretive ruling.
     In summary, we agree with the School Department that MLRB
precedent holding that the issues of preparation periods and
instructional time are issues of educational policy which should
not be overturned in this ruling. 

Issued this 15th day of January, 2009.

                                MAINE LABOR RELATIONS BOARD

                                Peter T. Dawson

                                Karl Dornish, Jr.
                                Employer Representative

                                Wayne W. Whitney
                                Employee Representative

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