The Maine School Administrative District #6 Board of
Directors ("Employer") filed a prohibited practice complaint on
April 10, 2012, in which it alleged that the Saco Valley Teachers 
Association/MEA/NEA ("Association") committed a per se violation
of the Act by insisting on presenting to the fact-finding panel
various proposals that the School Board alleges are non-
negotiable matters of educational policy.   
           
     The undisputed facts present the following background:   
On December 12, 2011, the Association filed a unilateral request
for fact finding with the Board's Executive Director which
included the required list of unresolved "Issues in Controversy". 
On February 14, 2012, the School Board delivered a letter to the
Association formally requesting that it remove from its
submission various proposals that the School Board considered to
be non-negotiable matters of educational policy.  On April 10,
the School Board filed its prohibited practice complaint alleging
that the Association had refused to withdraw those items from
fact finding in response to the School Board's demand.  The
complaint requested a stay of the fact finding hearing that was

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scheduled for April 24, 2012.  On April 19, 2012, the School
Board presented this request to the Executive Director as a
formal motion with supporting legal argument.  On April 20, 2012,
the Executive Director informed the parties that he did not have
the authority to stay a fact finding proceeding, citing In re:
Motion to Stay Fact-Finding Proceedings, MSEA and the State of
Maine, No. 78-A-07, at 2 (Aug. 7, 1978).  The fact finding
hearing was held on April 24, and, according to the Complainant,
was "largely consumed by attempts to mediate the contract."  A
second fact finding date is scheduled for June 11, 2012.  The
Board received the Association's Response to the Complaint on
April 30, 2012, which included the modified list of "Issues in
Controversy" that the Association had submitted as part of its
pre-hearing submission to the fact finding panel.  The Assoc-
iation asserts that the proposals as modified are working
conditions, not educational policy.  The Executive Director
established a briefing schedule on the merits of the complaint
which was due to be completed by June 1, 2012, with the goal of
having the Board issue a decision before the June 11, 2012, fact
finding hearing.  Due to unforeseeable events, extensions were
needed and the Board received the final brief only a few hours
before its June 6, 2012, deliberation.
                     
                           DISCUSSION
                                
     In the present case, the substantive question presented to
the Board is whether the Association's specific proposals related
to the topics of teaching hours and teaching load, involuntary
transfers, and teacher evaluation are mandatory subjects of
bargaining or non-negotiable matters of educational policy.  The
Association argues that it is entitled to an evidentiary hearing
to present its case that the proposals are more accurately
classified as working conditions than educational policy.  The 

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School Board asserts that it is inappropriate to proceed to fact
finding before this Board rules on the educational policy issues.
 
     Maine's collective bargaining statutes are designed to
foster improved relationship between public employers and their
employees through two essentially independent courses: resolving
allegations of conduct prohibited by the statute and enabling
successful negotiation of collective bargaining agreements
through the statutory dispute resolution processes of mediation,
fact finding and interest arbitration.  Absent compelling reasons
that are not present in this case, we are reluctant to interfere
with a fact finding proceeding scheduled to occur in less than a
week in order to resolve this prohibited practice complaint.  
           
     We recognize that it is the MLRB's exclusive jurisdiction to
determine what constitutes a mandatory subject of bargaining and
the preferable route would be for the Board to make this deter-
mination before fact finding. See Kittery Educ. Assoc. v. Kittery
School Committee, No. 00-22 at 2 (Aug. 24, 2000).  By allowing
the fact finding to proceed, we are not suggesting that the fact
finding panel has the authority to rule on whether a particular
proposal is or is not educational policy or that their
recommendation will have any bearing on the ultimate outcome of
this case.  Fact finding is, however, an established dispute
resolution mechanism that often helps the parties resolve some or
all of their outstanding issues.  It is for the parties to deter-
mine whether the potential benefits of fact finding outweigh the
risks of a potential violation of the Act for refusing to bargain
over a mandatory subject or insisting on a non-mandatory subject. 
           
     A cleaner way to address negotiability cases is to file the
prohibited practice complaint earlier, rather than later.  If the
complaint is filed early in the process, that is, when it becomes 

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apparent that the opposing party is going to pursue what is
allegedly a non-mandatory subject of bargaining at fact finding,
then this Board would be in a better position to deal with the
question of whether an issue on the table is a mandatory subject. 
Under the Board's Rules, a request for fact finding must include
a list of unresolved issues in controversy.  If that list
contains issues that the opposing party considers to be
educational policy, and a demand to remove those issues from the
table is not promptly acceded to, filing a prohibited practice
complaint would enable the Board to hear the matter before the
fact finding proceeding.  We see no legitimate reason to wait
until the eve of fact finding for a party to file the prohibited
practice complaint.
           
     We conclude that given the circumstances of this case, an
evidentiary hearing is appropriate.  To that end, the Executive
Director is ordered to schedule a prehearing conference
expeditiously.
      
     Dated at Augusta, Maine, this 6th day of June, 2012.

                                   MAINE LABOR RELATIONS BOARD
               
                                                  
                                   /s/________________________
                                   Peter T. Dawson
                                   Chair

                                                            
                                                                 
                                   /s/_____________________
                                   Wayne W. Whitney
                                   Employee Representative

Employer Representative Richard L. Hornbeck participated in the
deliberation of this case and concurs with the decision, but was
unavailable to sign this Interim Order.


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