STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 15-09
Issued: July 29, 2015

MT. ABRAM TEACHERS ASSOCIATION,
Complainant

v.

MSAD No. 58
Respondent.

 

DECISION AND ORDER

 

	  
	  The Mt. Abram Teachers Association MEA/NEA (the "Union" or 
"Association") filed this prohibited practice complaint on 
August 25, 2014, against MSAD No. 58, alleging that the school 
district violated 26 MRSA  964(1)(E) of the Municipal Public 
mployees Labor Relations Law (the "Act").  The Union argues 
that the School District failed to meet and consult with the 
Union regarding a change in the teachers' instructional load and 
that it failed to impact bargain in good faith with respect to 
the both the instructional load and assigning study hall duties 
to the teachers.
  
     An evidentiary hearing was held on March 26 and 27, 2015.  
Ms. Lee Libby represented the Association and Peter Felmly, 
Esq., represented the School District.  Both parties were able 
to examine and cross-examine witnesses, to offer documentary 
evidence at the hearing, and to submit written argument after 
the hearing.  Chair Katharine I. Rand presided at the hearing, 
with Employer Representative Christine Riendeau and Employee 
Representative Robert Piccone.  All parties' post-hearing briefs 
and reply briefs were received by June 8, 2015.  The Board 

[end of page 1]


deliberated this matter on July 2, 2015.


			   JURISDICTION

     The Mount Abram Teachers Association is a bargaining agent 
within the meaning of 26 MRSA  962(2) and the Board of Directors 
of MSAD No. 58 is the public employer within the meaning of 26 
MRSA  962(7).  The jurisdiction of the Board to hear this case 
and to render a decision and order lies in 26 MRSA  968(5). 


			      FACTS

1.  The Association and Board are parties to a collective 
    bargaining agreement which expired on August 31, 2012.  The 
    parties met for negotiations for a successor agreement on
    eight occasions during 2012.  Several tentative agreements 
    were signed by the parties during these negotiations.
 
2.  The parties participated in mediation and fact finding 
    during 2013, but signed no tentative agreements.  After 
    receiving the fact finders' report, the parties negotiated 
    further and signed several tentative agreements in early 
    2014.  The remaining disputes were taken to interest 
    arbitration.  The interest arbitration panel issued a 
    unanimous Opinion and Award in late 2014.  After considering 
    the arbitration decision and further information from the 
    Union, the School Board modified its position on insurance 
    and salary.  The parties met in early March, 2015, to 
    address the remaining issues.  The Association presented a 
    new demand for continued step increases after the contract's 
    expiration, a proposal the School District could not accept.

3.  Ms. Sally Bean, the President of the Mt. Abram Teachers 
    Association, testified that historically, the Union and the 
    School District relied on written memos or letters to make 
    
[end of page 2]

    formal communications with each other related to bargaining.    
    More recently, emails had become accepted means of formal 
    communication.

4.  On December 21, 2012, the Maine Department of Education 
    notified Maine school districts of an estimated curtailment 
    of General Purpose Aid in order to balance the FY 2013 State 
    budget.  The curtailment for MSAD #58 was $38,450, and the 
    District was told that the amount could possibly double.

5.  For many years, Mt. Abram High School operated with an 8-
    block schedule having four 75-minute blocks each day, with 
    all classes meeting during one block every other day.  There 
    is a 34-minute lunch period and a 24-minute advisor period 
    called "Mountain Time," also at the middle of the day, and a 
    10-minute morning snack break.

6.  Most of the Mt. Abram High School teachers had been 
    responsible for teaching during six out of the eight blocks, 
    with 3 classes each day and one planning period each day.  
    These preparation or planning periods were used for various 
    tasks such as preparing for the upcoming classes or special 
    needs of advanced students or struggling ones, grading 
    papers or tests, photocopying or getting supplies, calling 
    parents, writing recommendations, and consulting with other 
    teachers or administrators. 

7.  In February 2013, the study hall monitor at Mt. Abram High 
    School resigned.  The teachers met with the Principal, Marco 
    Aliberti, to discuss how the position could be covered with 
    existing resources.  The teachers agreed to a plan in which 
    each of the eight study halls would be broken into smaller 
    groups and students would be assigned to the rooms of those 
    
[end of page 3]

    teachers who had a planning period during that particular 
    study hall.  At the time, the teachers thought this was a 
    temporary solution that would not extend into the next 
    school year.

8.  The study hall monitor was not a certified teacher and had 
    an annual salary of $16,600.  Neither the Superintendent, 
    Ms. Brenda Stevens, nor the Principal had any expectation or 
    requirement that the teachers would include any academic 
    component in their management of their study hall.  The 
    Principal did assign a student to a study hall with one of 
    that student's classroom teachers if possible and if the 
    teacher thought it would be helpful.  

9.  Some teachers took a more structured approach to study hall 
    than others, by, for example, looking up the records of each 
    student and encouraging the student to complete missing 
    assignments or study for an upcoming quiz.  Other teachers 
    took a less active role.

10. To some extent, teachers were able to work on tasks normally 
    completed during a preparation period during what was now a 
    study hall in that teacher's room.  The tasks that were most 
    negatively affected were those that either required the 
    teacher to leave the room (such as making copies, getting 
    supplies, or conferring with other teachers), involved 
    confidential matters (such as calling parents to discuss a 
    child's issues), or required a constant level of 
    concentration (as some teachers considered necessary for 
    grading papers).

11. During the 2012-2013 school year, the School Board was 
    concerned about a very tight budget.  Not only was the 
   
[end of page 4]

    School District facing the curtailment of State funding, the 
    Board was also worried about the withdrawal of Eustis from 
    the District and the effect it would have on the tax rate of 
    the remaining member towns.  The Board stopped hiring 
    substitute teachers for non-tested content areas such as art 
    and physical education, administrative wages had been 
    frozen, and the Board was looking closely at other areas for 
    potential cuts or added revenue.  

12. In March of 2013, the School Board came to Mt. Abram High 
    School for its annual "Town Meeting"--an open forum to hear 
    from students and teachers about how things are working in 
    the school.  The teachers described the impact the study 
    hall duty was having on them and their students and 
    expressed their hope that the Board would be able to restore 
    funding for the monitor position.

13. On May 21, 2013, the Board voted to eliminate the study hall 
    monitor position at Mt. Abram High School.  As another cost- 
    saving move, the Board voted to fund the supply lines of the 
    budget at 80 percent of the funding then in place.

14. On June 5, 2013, the Association sent the Board a request to 
    meet and consult regarding the impact of the study hall 
    supervision duties and the parties met on June 11, 2013.    
    Ms. Bean stated that the Association should have had an 
    opportunity to meet and consult before the decision to 
    eliminate the position was made.  She and other teachers 
    explained to the Board how having teachers continue to 
    perform study hall duties during one of their preparation 
    periods would affect students the following year. 

15. It had been apparent to both the Association and the

[end of page 5]
 
    administrators since at least 2012[fn]1 that some of the school 
    Board members felt that the teachers' planning periods were 
    actually "down time" and that more of the teachers' time 
    should be spent instructing students.  One of the Board 
    members in particular had a tendency to make "very barbed" 
    comments in public meetings about this issue.

16. During the summer of 2013, Mr. Aliberti was directed by the 
    School Board to present information for them on the high 
    school schedule.  His first presentation to the Board in the 
    fall focused on his research on different types of high 
    school schedules, comparing Mt. Abram's schedule to schools 
    of similar size, what type of schedule other schools in the 
    area were using, and what research has shown regarding the 
    length of class periods.  The Board listened to his 
    presentation, then directed him to make a recommendation to 
    the Board about what changes needed to occur in the schedule 
    at Mt. Abram High School.

17. Mr. Aliberti had several meetings with the teaching staff to 
    determine what they might be able to do to meet the Board's 
    expectations.  They came up with a couple of ideas for 
    additional classes to offer and how to do so while still 
    keeping the framework of their existing schedule.

18. Ms. Bean and Mr. Aliberti traded emails on October 18, 2013, 
    concerning his efforts to enlist the help of the teaching 
    staff in developing a schedule to recommend to the Board.   
    Ms. Bean stressed the importance of the subject and wrote, 

        I also hope that we follow the proper process this

[fn]1  Ms. Stevens testified that the instructional time/preparation time
issue had been present since she came to the district in 2000.

[end of page 6]
 
        time if the board is going to actually look at a 
        change in the HS schedule, which means that they 
        Meet and Consult with the association BEFORE 
        considering any change.  It would be nice to work on 
        this together proactively rather than try to fix a 
        problem later. 

19. Throughout the 2013-2014 school year, the teachers continued 
    to perform the study hall duties in their classrooms during 
    one of their planning periods as they had since the study 
    hall monitor's resignation the previous winter.  

20. The District continued to face budget challenges during the 
    2013-2014 school year.  The agenda for the January 23, 2014, 
     Board meeting (which was distributed to all staff by email) 
    included the 10 percent cut to the budget recommended by the 
    Board's Finance Committee as a discussion item.  Another 
    item on the agenda was a presentation by the Principal on 
    the high school class schedule.

21. On January 23, 2014, Ms. Bean sent an email to the 
    Superintendent and the Chair of the School Board requesting 
    a meeting "to discuss the study hall situation at the high 
    school" and certain online trainings the teachers had been 
    asked to complete.  Ms. Bean indicated that the Association 
    should have been notified of the elimination of the study 
    hall monitor prior to any action and should have been given 
    an opportunity to meet and consult on the change.

22. At the School Board meeting on January 23, 2014,          
    Mr. Aliberti made his presentation.  Some School Board 
    members were dissatisfied with Mr. Aliberti's presentation 
    and antagonistic toward him, stating that he had disregarded 
    the Board's request for a completely new schedule.  Present

[end of page 7]
 
    at this meeting was Ms. Bean and at least a couple of other 
    teachers.

23. One of the teachers present at the January 23, 2014, Board 
    meeting was Ms. Jen Baker.  She was very concerned that 
    several of the Board members did not understand that 
    preparation periods were not "down time" but something the 
    teachers considered to be a very necessary element to 
    effective teaching.  She left the meeting worried that the 
    three Board members who seemed intent on filling preparation 
    periods with classroom instruction would try to convince the 
    full Board to impose such a change.  She composed a long 
    letter describing all of the work that teachers are able to 
    do during their preparation periods that directly benefited 
    the students.  All but one of the teachers signed the 
    letter.

24. The minutes of the January 23, 2014, Board meeting listed as 
    future action items the Mt. Abram Study Hall Monitor, the 
    sale of the wind turbine at the high school as a source of 
    revenue, and proficiency-based education.  

25. As a result of Ms. Bean's January 23, 2014, request to meet, 
    the parties met on February 6, 2014, to discuss the online 
    training and the study hall issue.  Ms. Bean and another 
    teacher represented the Association, and Ms. Stevens and the 
    Chair of the School Board, Ms. Diane Thomas, represented the 
    School District.  The teachers described the impact of 
    imposition of the study hall responsibility on the teachers.  
    Ms. Stevens indicated that the Board was very concerned with 
    providing increased contact time with students to give 
    greater support to both the advanced students and those who 

[end of page 8]

    were struggling.  She noted that the Board wanted more face 
    time with students and that a faction of the Board felt that 
    preparation time was not productive time and it would be 
    time better spent with students.  After discussing various 
    aspects of the problem, both sides tried to develop ways of 
    presenting to the Board in concrete terms the value of 
    preparation periods.  Ms. Stevens thought it was important 
    to somehow educate the School Board on a regular basis on 
    what was actually being done in the preparation periods, 
    because the periods would be needed for the teachers to 
    assess and update the curriculum to meet the upcoming 
    proficiency-based education standards.  The teachers 
    suggested using two of the five daily advisory periods 
    ("Mountain Time") during which all teachers could be made 
    available for such assistance.  Ms. Stevens and Ms. Thomas 
    testified that the discussions also included the challenge 
    of instituting proficiency-based education and the fact that 
    retaining preparation periods would be necessary for the 
    teachers to be able to prepare for the new proficiency-based 
    guidelines.

26. At the end of the meeting on February 6, 2014, Ms. Bean gave 
    the letter written by Ms. Baker and signed by most of the 
    teachers to the Chair of the School Board.  As she left to 
    go to another meeting, Ms. Thomas stuck the letter in her 
    bag with other papers, intending to share it with the other 
    Board members as Ms. Bean had requested.  Ms. Thomas forgot 
    about the letter and did not share it with the other Board 
    members before the February 27, 2014, Board meeting.  

27. The prepared agenda for the February 27, 2014, School Board 
    meeting included as discussion items the Mt. Abram 2014-2015 

[end of page 9]

    Course of Studies (that is, the list of courses to be 
    offered), the 2014-2015 budget, and the Mt. Abram Study Hall 
    Monitor, among other items.  

28. The Minutes of the Feb. 27 meeting under "Superintendent's 
    Report" (a regular agenda item), included the following:

         D. The Mt. Abram Teachers Association requested 
         a meet and consult with the Superintendent and 
         Board Chair to discuss ways to restructure the          
         high school schedule and the study hall monitor 
         position.  This meeting took place February 6 in 
         Phillips.  Sally Bean and Mary Jane Martin 
         represented the association.  Restructuring the 
         Mt. Time advisor advisee position were 
         discussed as was maintaining the current
         planning time in order for teachers to 
         implement LD 1422: Proficiency Based Diplomas.

29. Under the Discussion Items section of the Minutes of the 
    February 27, 2014, Board meeting, the following descriptions 
    were included:  "A. The Mt Abram 2014-2015 Course of Studies 
    generated conversation about how credit hours are being 
    applied to graduation requirements.  The Board would like 
    more information on Proficiency Based Education.  . . . F. 
    Reinstating the Mt. Abram Study Hall Monitor position was 
    discussed at length."

30. The next order of business in the minutes of the February 
    27, 2014, Board meeting was "Public Comment."  It listed the 
    names of the 6 individuals speaking and the subject of their 
    comments.  Three people spoke of Mountain Time, and two 
    referred to curriculum related matters at the high school.  
    There were no comments from anyone identified as a teacher 
    or as representing the Teachers Association.

31. The minutes of the February 27, 2014, meeting then described 

[end of page 10]

    various action items.  After an initial procedural matter,   
    Board member Dan Worcester made the following motion:

         That all high school instructional staff be 
         required to instruct 7 classes or blocks out of 
         the High School 8 block schedule leaving one duty 
         free 75 minute planning period every other day, 
         that we direct the High School Principal to 
         develop a schedule that takes into consideration 
         the need for more advanced courses, supplemental 
         math, supplemental reading courses, and other 
         electives that would challenge our advanced 
         students, aid our struggling students obtain a 
         standards based diploma, and help graduating 
         students find employment in the workforce.


32. Following some discussion, the Board Chair made a motion to 
    table Mr. Worcester's motion until after the Board voted on 
    reinstating the study hall monitor position.  The motion 
    passed, and the Board voted to reinstate the study hall 
    monitor position for the following school year.

33. The Board voted down Mr. Worcester's motion, but passed a 
    similar motion which increased the teaching load from 6 out 
    of the 8 block schedule to 6.5 blocks (rather than 7 blocks 
    proposed by Mr. Worcester).

34. As a result of the Board vote, several new course offerings 
    were added for 2014-2015, including an Honors Chemistry 
    class and an Honors English 11 class, extended class periods 
    for some of the AP classes, a personal finance class and 
    English and math fundamentals classes to help struggling 
    students in those two subject areas. 

35. On May 5, 2014, Ms. Bean sent the Superintendent a 10-day 
    notice to bargain over the impact of study hall duties.

36. Ms. Stevens responded that she and the Board Chair would 

[end of page 11]

    meet to hear concerns and "to determine the existence, 
    nature or extent of any impact.  The District reserves the 
    right to decide whether there exists any obligation to 
    impact bargain." 

37. The parties met on May 15, June 5, and June 13, 2014, to 
    bargain the impact of study hall duties.  The Association 
    proposed compensation based on time involved and using the 
    dollar value for extra duty pay established in the expired 
    agreement.  Ms. Stevens and the Board members asked many 
    questions about the impact the Association was trying to 
    address and the specifics of the Association's proposal. 

38. After the first impact bargaining session, Ms. Stevens sent 
    a memo to Ms. Bean asking for more detailed information on 
    the scope of the impact.  She wrote:
 
         ". . . we are still unclear precisely how many 
         high school teachers have been impacted (during 
         the 2013-2014 school year) by the above decision. 
         You indicated the impact varied by individual; 
         however, we are not clear the precise scope of 
         the impact you described (who has been impacted 
         and in what respect). Can you please provide this 
         information to me in advance of our next 
         session?" 


39. Ms. Bean spoke to all the teachers and compiled the 
    information for Ms. Stevens on each teacher's schedule and 
    how much they were impacted.  This information was presented 
    and discussed at the second impact bargaining session.  The 
    Association also orally presented a specific proposal for 
    payment of $16 per hour for each hour the teachers spent in 
    study hall for the 2013-2014 year, which had a total cost of 
    about $31,000.  The Board asked several questions seeking 

[end of page 12]

    clarification on this impact.  Ms. Stevens and the Board 
    members were looking for information specifically on the 
    impact outside of the school day, which the Association was 
    not able to provide to the Board's satisfaction.  

40. The Association understood that funds were limited 
    and indicated that they were seeking a symbolic acknowledgement 
    of their sacrifice to cover the study halls.  
    The Association proposed some non-monetary alternatives, such  
    as more flexibility on use of personal days and more 
    flexibility in the required times of arrival.  

41. Mr. Jason Plog, a Board member who attended the impact
    bargaining sessions, testified that many of the Board 
    members were not interested in financial compensation for 
    teachers for the study hall duties.  Their position was that 
    the teachers' salary already covered the duties at issue.  

42. At the third meeting on June 13, 2014, Ms. Stevens said that 
    the Board concluded that there was no impact outside of the 
    school day that warranted additional compensation.  She 
    explained that the Board was not interested in expanding the 
    use of personal days because that reduced the number and 
    quality of teachers present, which was in direct opposition 
    to its objective of getting more teacher face time with the
    students.  The meeting ended and no further impact-
    bargaining sessions were planned.

43. According to an article published August 27, 2014, edition 
    of the weekly newspaper "The Irregular," the School Board 
    learned on August 21, 2014, that there was $623,000 in 
    "unassigned funds" from the previous budget.  These funds 
    were from various sources:  unanticipated revenue, salary 

[end of page 13]

    savings from replacing retired staff with new hires, and 
    maintenance projects costing less than anticipated.

44. On August 25, 2014, the Association filed a request for 
    mediation regarding the study hall impact bargaining.       
    Ms. Bean testified that she thought it was a good time to 
    seek compensation because some of the surplus may have been    
    from funds in the budget set aside for salary increases but 
    not yet paid because the successor collective bargaining 
    agreement was still unresolved. 

45. In a memo to the new Superintendent, Ms. Erica Brouillet, 
    dated August 26, 2014, Ms. Bean requested to meet and 
    consult over the change in instructional load.  The memo was 
    delivered with an email dated August 28, 2014, in which   
    Ms. Bean stated that the teachers were very busy with 
    another project and that they would not have time to meet 
    within the 10 days, but suggested that it could be scheduled 
    later in September. 

46. The increase in the teachers' instructional load went into 
    effect on the first day of the 2014-2015 school year, 
    September 3, 2014.  The teachers received their class 
    schedule reflecting this increase on the first or second 
    workshop day, either August 27 or 28, 2014.  Ms. Bean 
    testified that the Association did not send the meet-and- 
    consult request until late August because it was not until 
    then that they saw how it was actually going to work.

47. There were multiple impact-bargaining sessions in the fall 
    of 2014 to address the increased instructional load.      
    Ms. Bean testified that the first meeting started out as a 
    meet-and-consult session, but quickly evolved into impact 
    
[end of page 14]

    bargaining.  Ms. Bean thought the schedule could be easily 
    changed and was under the impression that not very many 
    students would be affected by changing it in the middle of 
    the year.  The guidance counselor's numbers showed that 
    there were more students affected than she thought.  The 
    District was unwilling to change the schedule mid-year.  

48. During one of the impact bargaining sessions on the teaching 
    load, the Superintendent, Ms. Brouillet, presented 
    information she had gathered on the amount of instructional 
    time, planning time, and student contact time the teachers 
    had in all of the schools in the district.  This data showed 
    that the average daily instructional time at Mt. Abram High 
    School was much less than at the elementary schools.  In 
    addition, the amount of unstructured time at Mt. Abram was 
    significantly greater than at the other schools.  With this 
    data in mind and the Board's objective of providing more 
    options and more teacher contact time for the students,   
    Ms. Brouillet did not feel a need to step back from the 
    added 1/2 block of instruction time. 

49. During one of the impact bargaining meetings, the 
    Superintendent brought a School Board member who was 
    experienced with scheduling in another school district.      
    By this point, both sides recognized that there was an 
    opportunity to create extra time for the students to have 
    with teachers by using some of the underutilized time in 
    Mountain Time and other non-instructional periods of the 
    day.  The Superintendent instructed Mr. Aliberti to work 
    with the teachers to try to find creative ways to use that 
    time to better meet the Board's objectives. 

[end of page 15]

50. With respect to the study hall impact bargaining, a 
    mediation session occurred on October 17, 2014.  The 
    Association made some of the same proposals that it had 
    previously made for more flexible use of the personal days 
    and more flexible starting times.  At some point during or 
    before this mediation, the Association's position on 
    compensation expanded to include all teachers, not just 
    those in the high school.  The Board made its first 
    counterproposal during this mediation session, which was an 
    offer to free the affected teachers of the obligation to 
    attend one of the scheduled workshop days.  The Association 
    rejected that proposal as offering no value to them.

51. The next mediation session occurred on March 24, 2015.  The 
    parties agreed to consider this a combined mediation session 
    to address both the impact of the increased instructional 
    load starting in the 2014-2015 school year and the impact of 
    the study hall duties during the 2013-2014 school year.  The 
    Association presented a proposal of compensation for the 
    study hall duties that was based on a higher wage rate than 
    the previous proposal and had a projected cost of $50,000.  
    The proposal was rejected by the Board.  The School Board 
    presented a proposal to address the increased instructional 
    time that did not involve any financial compensation.  That 
    proposal was rejected by the Association.


                           DISCUSSION

    The concept of bargaining in good faith is central to the 
collective bargaining laws of Maine.  Section 965(1)(C) 
establishes the mutual obligation of the public employer and the 
bargaining agent:

[end of page 16]

    C. 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 may 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 may not include wages, hours, 
    working conditions or contract grievance arbitration;  

    This case involves the MSAD #58 School Board's decision to 
have the Mt. Abram high school teachers supervise study halls 
during the 2013-2014 school year as well as the School Board's 
decision to increase the high school teachers' teaching load 
from 6 to 6.5 blocks out of 8 blocks starting in the 2014-2015 
school year.  Count I of the Complaint alleges that the School 
Board failed to meet and consult with the teachers over the 
change in the instructional load and failed to bargain in good 
faith over the impact of the change in the instructional load.  
Count II of the Complaint alleges that the School Board failed 
to bargain in good faith over the impact of assigning study hall 
duties to the high school teachers.
  
    The Association does not dispute that the changes to study 
hall and teachers' instructional load are matters of educational 
policy.[fn]2  Although matters of educational policy are not 
negotiable under the express terms of  965(1)(C), an employer 
must meet and consult with the bargaining agent over educational 
policy subjects within 10 days of receiving such a request from 
the bargaining agent.  MSAD #43 Teachers Assoc. v. MSAD #43 

[fn]2  Up until the start of the hearing, it seemed that the Association was
taking the position the complaint did not involve matters of
educational policy.

[end of page 17]

Board of Dir., No. 79-42 at 2 (May 1, 1979).  The meet-and- 
consult process is a "a mechanism for insuring employee input in 
non-negotiable policy areas, . . . to further the Act's purpose 
of improving the relationship between school committees and 
their employees."  Southern Aroostook Teachers Association v. 
Southern Aroostook Community School Committee, No. 80-35 and 80-
40 at 16. (April 14, 1989).  The Board described the different 
elements necessary to carry out this purpose with:

       1.  Notice that a change in educational policy is 
       planned must be given to the bargaining agent, so 
       that it can timely invoke the meet and consult 
       process if employees wish to comment on the 
       changes;

       2.  Pertinent information about the planned change 
       must be provided so that the bargaining agent and 
       employees can understand the change and make 
       constructive comments about it.

       3.  Actual meeting and consulting at reasonable 
       times and places about the planned change must 
       occur upon receipt of a ten day notice or other 
       request to meet and consult by the bargaining 
       agent.  A school committee is obligated to come to 
       meet and consult sessions with an open mind, to 
       discuss the planned change openly and honestly, and 
       to listen to the employees' suggestions and 
       concerns.

       4.  Mature consideration must be given to the 
       employees' input before the change is implemented, 
       and if any of the employees' comments or concerns 
       are meritorious, the school committee must decide 
       in good faith whether they can be accommodated.

Southern Aroostook, No. 80-35 at 15-16.  Failure to satisfy the 
elements of the duty to meet and consult or evidence of an 
attempt to delay or frustrate the process is evidence that the 
party has violated its obligation to meet and consult.  Id. at 
16.

[end of page 18] 
 
    The Association argues that the School District failed to 
satisfy the first element of the meet-and-consult process 
because it did not provide notice to the Association that the 
School Board would be voting on increasing the instructional 
load for high school teachers at the Board's February 27, 2014, 
meeting.  The Association asserts that the established practice 
had been for the Superintendent to communicate with the Associa-
tion President by email or in writing and suggests that the 
failure to follow this practice proves that there was no notice.
  
    It is true that there was no formal notice given to the 
Union of the School Board's vote to increase the instructional 
load.  The purpose of the notice is to enable the bargaining 
agent to demand bargaining or formally request a meet-and- 
consult session.  For this reason, we have held that actual 
notice to the bargaining agent is enough, even if that notice is 
not formal or in writing.  Southern Aroostook, No. 80-35 at 16. 
Like the notice requirement for an employer's contemplated 
change to a mandatory subject of bargaining, notice that does 
not "provide a reasonable opportunity to demand bargaining" is 
insufficient.  Teamsters Local Union No. 48 v. Eastport School 
Dept., No. 85-18, at 4 (Oct. 10, 1985).  See also City of Bangor 
v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982).  For 
example, the notice to the Union of a "rally" for which bus 
driver attendance was mandatory was insufficient when it was 
provided only three days before the rally.  Monmouth School Bus 
Drivers & Custodians/Maintenance Assoc./MEA v. Monmouth School 
Committee, No. 91-09 at 56 (Feb. 27, 1992).
  
    In the present case, notice sufficient to allow a 
'reasonable opportunity' to request a meet-and-consult session 
must be measured from the date of the implementation of the 

[end of page 19]

change to educational policy, not the date of the School Board's 
vote on February 27, 2014.  MSAD #43 Teachers Assoc. v. MSAD #43 
Board of Directors, No. 79-42 at 4 (May 1, 1979)(The school was 
obligated to meet and consult prior to the implementation the 
change in educational policy); Southern Aroostook, No. 80-35 at 
18 (". . . [O]nce the duty to meet and consult has been 
satisfied, the change can be implemented.")  Here, the vote 
itself was not the implementation of the change in policy, it 
merely set the planning in motion.  The Association had several 
months of opportunity between the Board vote on February 27, 
2014, (clearly actual notice of the impending change) and the 
implementation of the change in policy at the start of the new 
school year in which to submit a request to meet and consult. 
For the foregoing reasons, we reject the Association's claim 
that it did not receive notice of the contemplated change 
sufficient to provide an opportunity to demand a meet-and- 
consult session.[fn]3

     Had the Association submitted a request to meet and consult 
at any time after the February vote, the School District would 
have been obligated to comply with that request.  The 
Association could have made its case against the added teaching 
block or could have assisted the District in implementing the 
new schedule in a manner that reduced the negative impact on the 
teachers.  Had the Association been successful in convincing the 
Board that its vote was in error, the Board could have 

[fn]3  Even if the law required notice of the vote to change the school
board policy on teaching load, rather than its implementation, we
would hold that the union was on notice, as the facts of this case are 
nearly identical to those constituting notice in Southern Aroostook,
No. 80-35 at 16 (Union's attendance at School Committee meetings and
receipt of minutes and agenda constituted notice).

[end of page 20] 


reconsidered its vote at a subsequent meeting.[fn]4  By waiting until 
the eve of implementation to present the Superintendent with the 
Association's 10-day request to meet and consult the Association 
lost the opportunity to influence the implementation of the 
policy.

     We conclude that there is no basis for holding that the 
Employer failed to meet and consult over the change to the 
instructional load because the Association simply waited too 
long before submitting its request.  This case is quite similar 
to Saco Valley Teachers Association v. MSAD #6, in which the 
Board rejected the Union's assertion that the School failed to 
meet and consult where the Union's 10-day request to meet and 
consult was submitted several months after the Union was on 
notice that an after-school tutorial program would be 
implemented the following school year.  No. 85-07 at 15-16.    
In light of the union's "substantial delay" in requesting a 
meeting with the employer until after the start of the new 
school year, the Saco Board concluded that the employer had not 
failed to fulfill its meet-and-consult obligation under the Act.  
In the present case, the delay in making a meet-and-consult 
request was six months from the Board's vote, even longer than 
the delay in Saco.
  
     The Association's argument that it did not know how the 
increased instruction load would be implemented until the high 
school schedule was distributed in late August is not a valid 
reason for the six-month delay in submitting its demand to meet 

[fn]4  The Association claimed in its reply brief (at 3-4) that based on the
"demeanor" of the School Board member testifying, it was clear "that
there was no turning back."  There was no evidence suggesting the vote
could not be reconsidered or suggesting a procedural barrier that
would make reconsideration impossible.

[end of page 21]

and consult.  If the Union needed to wait to see how an 
educational policy matter was going to be implemented before it 
could request a meet-and-consult session, it could only result 
in two outcomes:  either the meet-and-consult session occurs too 
late to be of any use or the implementation of the change is 
delayed in order to schedule a meet and consult.  Neither of 
those options is consistent with the purpose of the meet-and-
consult requirement:  to ensure that the School Board, 
representing the interests of the citizens, has the authority to 
make educational policy, with an opportunity for input from the 
teachers prior to its implementation.  Southern Aroostook, No. 
80-35 at 15.

     For the forgoing reasons, we conclude that the School 
District has not violated  965(1)(C) by failing to meet and 
consult over the implementation of the increased teaching load 
at the high school.  Given the specific circumstances of this 
case, the Association's 10-day demand to meet and consult was 
untimely.
 
     The Association also alleges in Count I of the Complaint 
that the School District failed to bargain in good faith over 
the impact of the change in the teachers' instructional load.  
The question of whether a party has failed to bargain in good 
faith involves the assessment of many factors simultaneously.  
We must examine the totality of the charged party's conduct to 
decide whether that party's actions during negotiations indicate 
"a present intention to find a basis for agreement."  Waterville 
Teachers Association v. Waterville Board of Education, No. 82-11 
(Feb. 4, 1982).  The analysis for determining whether a party 
has been bargaining in good faith involves the following:

[end of page 22]

     Among the factors which we typically look to in making 
     our determination are whether the charged party met   
     and negotiated with the other party at reasonable  
     times, observed the groundrules, offered counter-
     proposals, made compromises, accepted the other   
     party's positions, put tentative agreements in   
     writing, and participated in the dispute resolution 
     procedures.  See, e.g., Fox Island Teachers   
     Association v. MSAD #8 Board of Directors, MLRB No.   
     81-28 (April 22, 1981); Sanford Highway Unit v. Town   
     of Sanford, MLRB No. 79-50 (April 5, 1979).  When a 
     party's conduct evinces a sincere desire to reach an 
     agreement, the party has not bargained in bad faith in 
     violation of 26 M.R.S.A.   964(1)(E) unless its 
     conduct fails to meet the minimum statutory 
     obligations or constitutes an outright refusal to 
     bargain.

Town of Orono v. IAFF Local 3105, No. 11-11 at 8 (Aug. 11, 2011) 
quoting Waterville Teachers Assoc. v. Waterville Board of 
Education, No. 82-11 at 4 (Feb. 4, 1982).  The same analysis 
applies to impact bargaining as well as bargaining for an 
initial or a successor collective bargaining agreement. 
 Southern Aroostook, No. 80-35 at 19.

     Much of the Association's arguments that the School Board 
failed to bargain in good faith over the impact of the increased 
instructional load are focussed on the merits of the 
Association's position that the loss of preparation periods had 
a negative impact on the quality of the education provided.  The 
School Board's position is that the added instructional period 
reflects the Board's policy choice of additional student contact 
time for the teachers and additional course offerings for the 
students.   It is not this Board's role to pass judgment on 
either side's position, only to enforce the statute that 
requires the parties to bargain in good faith.

[end of page 23]

     There is no merit to the Association's allegation that the 
School Board failed to bargain in good faith over the impact of 
the added teaching load.  The evidence is clear that the parties 
met multiple times in the fall and winter months to negotiate; 
the School Board listened to the teachers' concerns about the 
loss of preparation time; the School Board brought a Board 
member who was experienced in scheduling at another school to 
the meetings to try to work on the schedule; the School Board 
supported its position that changing the schedule in the middle 
of the year was problematic by showing that more students were 
affected than the Association had thought; the Superintendent 
gathered and shared with the teachers extensive information 
about the amount of daily instructional time at other schools in 
the district compared to Mt. Abram High School and the amount of 
"unstructured" time available to the high school teachers 
relative to other teachers in the district.  Eventually, the 
Principal and others were tasked with trying to find some 
solution to put into effect the following school year.  During 
the mediation session held shortly before the evidentiary 
hearing in this case, the School Board presented a counter-
proposal to address the Association's concerns, which the 
Association rejected as unsatisfactory.

     The totality of the party's conduct analysis is not a test 
in which all of the items must be satisfied in order to conclude 
a party has bargained in good faith; rather, it is a list of 
factors which together can give an indication of whether the 
party has a present intent to reach an agreement.  Here, the 
School District's position on whether to agree to any of the 
Association's proposals on this issue or to alter its own stance 
on the teachers' responsibilities during the school day was not 

[end of page 24]

a refusal to bargain in good faith.  To conclude otherwise would 
be inconsistent with the express language in  965(1)(E) that 
"neither party may be compelled to agree to a proposal or be 
required to make a concession."  The Union's complaint in Count 
I must therefore be dismissed.

     Count II of the complaint alleges that the School District 
failed to bargain in good faith over the impact of the study 
hall supervision duties assigned to the high school teachers 
during the 2013-2014 school year.  Again, it is the totality of 
the parties' conduct that must be assessed.  Here, the parties 
met three times during May and June to bargain the impact of the 
study hall supervision duties.  The Association proposed 
monetary compensation, based on its conviction that the teachers 
should be compensated for the added study hall duties and 
reduced preparation periods.  The School Board asked for 
additional information to clarify how the change had impacted 
the teachers outside of the school day, but remained unconvinced 
that there was any impact outside of the school day.  The Board 
rejected the Association's proposal based on its conviction that 
the teachers' salaries already compensated them for their work 
during the school day.  The Board rejected the Association's 
other proposals for more flexibility in use of personal days as 
contrary to the Board's goal of increasing student-teacher 
contact time.  The Employer made counterproposals of release 
from a workshop day instead.  The Association's changes to its 
proposals to include teachers in other schools and significantly 
increasing the cost of the compensation formula made the School 
Board's acceptance even less likely.  The School Board explained 
its reasoning for rejecting the Association's proposals, which 
were consistent with its prior positions on student contact time 

[end of page 25]

and financial concerns.
 
     Given the totality of the School Board's conduct, we can 
find no basis for concluding that the School Board has not 
bargained in good faith.  Count II of the Complaint must 
therefore be dismissed.


                          ORDER

     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 MRSA  968(5), it is ORDERED:
 
     That the prohibited practice complaint, filed on 
     August 25, 2014, in Case No. 15-09, be and hereby 
     is dismissed.

Dated at Augusta, Maine, this 29th day of July 2015.

				   
 

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.

MAINE LABOR RELATIONS BOARD

[signed]
Katharine I. Rand
Chair

[signed]
Christine Riendeau
Employer Representative

[signed]
Robert L. Piccone
Employee Representative

 

[end of page 26]