Supreme Judicial Court of Maine
Docket:   Law-81-457
Argued:   May 11, 1982
Decided:  July 14, 1982

                               EMILY B. LANE
                        BOARD OF DIRECTORS OF MAINE 
                           SCHOOL ADMINISTRATIVE 
                           DISTRICT NO. 8, et al.


     ROBERTS, Justice

     This appeal involves the question of whether Emily Lane is entitled, 
pursuant to either 20 M.R.S.A.  161(5) or her contract with the school 
district, to a hearing prior to the non-renewal of her teaching contract.
Lane appeals from the judgment of the Superior Court that denied the 
relief sought in her complaint against the Board of Directors and the 
Superintendent of M.S.A.D. No. 8 for their failure to grant Lane's 
hearing request.  We affirm the judgment of the Superior Court.

     Lane was employed as a teacher for M.S.A.D. No. 8 for two distinct 
periods.  She worked as a remedial reading teacher, pursuant to one-year 
contracts, during the 1971-1972 and 1972-1973 school years.  In the 
summer of 1973, the plaintiff resigned from her teaching position.  Upon 
reapplying for a teaching post in August 1979, Lane was hired as a social 
studies teacher.  She worked under one-year contracts during the 
1979-1980 and 1980-1981 school years.  All four contracts were entitled 
"Probationary Teacher's Employment Contract."

     In February 1981, the Superintendent notified Lane that he did not 
plan to nominate her for employment for the next school year and that 
consequently her employment would terminate on the expiration date of her 
contract, August 31, 1981.  Following this notice of non-renewal, Lane 
wrote to the School Board in March 1981 seeking a hearing in accordance 
with 20 M.R.S.A.  161(5) and her contract rights.

The Board rejected the request on the basis of the Superintendent's
recommendation.  That recommendation stated that as a probationary 
teacher Lane "is not entitled to a hearing under the collective 
bargaining agreement because the . . . agreement expired . . . in August, 
1980."  The recommendation also stated that Article VI(A)(5) of the 
agreement is invalid because it is in direct conflict with the statutory 
authority of the Superintendent under 20 M.R.S.A.  161(5) and because it 
involves matters of non-negotiable educational policy.

     Lane then filed a four-claim complaint in Superior Court asserting,
inter alia, that Lane was entitled to a hearing under 20 M.R.S.A. 
 161(5) and that the refusal to give her a hearing constituted "a breach 
of plaintiff's individual employment contract and the collective 
bargaining agreement."  The Superior Court, on plaintiff's motion for 
summary judgment and following the submission of affidavits by both 
parties, ruled against Lane on both legal theories and entered judgment 
for the defendants.


     We turn first to Lane's contention that, under section 161(5), a 
teacher, after two non-consecutive years of service, is entitled to 
continuing contract status and therefore to a hearing if any subsequent 
contract is not renewed.  The statute in question provides in pertinent 

     After a probationary period of not to exceed 2 years, subsequent
     contracts of duly certified teachers shall be not for less than 2
     years . . . .  After a probationary period of 2 years, any teacher,
     who received notice in accordance with this section that his 
     contract is not going to be renewed, may during the 15 days 
     following such notification request a hearing with the school 
     committee or governing board.

20 M.R.S.A.  161(5) (1965 to 1981 Supp.).  The Superior Court read this
language as requiring that the probationary period be served in 
consecutive years.  Since Lane had yet to complete the requisite years of 
consecutive service prior to receiving notice that the Superintendent did 
not plan to renew her contract, the trial court concluded that Lane was 
not entitled to a hearing.[fn]1

     Lane contends that the Superior Court's interpretation is in error 
because the statute's express limitation on the duration of a 
probationary period and its silence on the requirement that the period be 
served in consecutive years requires a finding that after service of any 
two years a teacher must, if retained, receive a continuing contract and 
the accompanying hearing right.  We cannot adopt such an analysis of the 

     The purpose of the probationary period is to allow for a length 
of time "during which [a teacher's] ability to perform satisfactorily is 
tested."  Chassie v. Directors of School Administrative District No. 36, 
Me., 356 A.2d 708, 710 (1976).  It aids the school authorities in 
carrying out their statutory duty of maintaining the quality of the 
school system.  See Board of Directors of Maine School Administrative 
District No. 36 v. Maine School Administrative District No. 36 Teachers 
Association, Me., 428 A.2d 419, 422-23 (1981); Benson v. Inhabitants of 
Newfield, 136 Me. 23, 26-27, 1 A.2d 227, 229 (1938).  In the instant 
case, Lane voluntarily left her teaching position in 1973 for personal 
reasons, returned after a lapse of five years to teach a different 
subject matter at a different grade level and accepted a probationary 
teacher's contract.  Given these circumstances and the statutory purpose, 
we find that the Superior Court did not err in concluding that Lane was 
not entitled to a hearing under section 161(5).

     We need not address and intimate no opinion on Lane's arguments that 
a school could voluntarily grant a continuing contract or that a teacher 
could otherwise acquire a hearing right in less than two consecutive 
probationary years.

1.  The plaintiff did not complete her probationary period in 1973 
because, at that time, section 161(5) required a three-year probationary 
period.  See 20 M.R.S.A.  161(5) (1965).


     Lane next contends that she has a contractual right to a hearing 
under the terms of either the collective bargaining agreement or her 
individual teaching contract.  Lane suggests, first that the terms of the 
collective bargaining agreement were incorporated by reference into her 
individual teaching contract and thus the hearing provision survived the 
expiration of the collective bargaining agreement.  Second, she urges 
that the School Board could not make unilateral changes in the terms and 
conditions of the collective bargaining agreement; therefore, her 
contractual rights under the collective bargaining agreement continue 
despite the expiration of the agreement.

     Lane asserts that the Superior Court found that the collective 
bargaining agreement was incorporated by reference into the individual 
teacher's contract but that it erred in its conclusion that this 
incorporation ceased at the time of the expiration of the collective 
bargaining agreement.  We do not glean such a finding from the written 
decision of the trial court.  The court merely concluded that since the 
collective bargaining agreement expired before the commencement of Lane's 
services under the individual contract, the plaintiff had no hearing 
right under the individual contract.  The court then went on to examine 
whether Lane had any rights solely by virtue of the collective bargaining 

     We read the Superior Court's decision as concluding that no 
individual contract right by incorporation ever existed because the 
operative date of the individual contract was later than the express 
expiration date of the collective bargaining agreement.  Moreover, the 
individual contract contains no express reference to or incorporation of 
the collective bargaining agreement.  Lane's contract for the 1980-1981 
school year provides that the contract was "subject to the statutes of 
the State of Maine and the rules and regulations of the School 
Director."  It also provides that "salary may change when 80-81 Budget is
approved and after final negotiations."  The contract contains no 
reference to a hearing provision.  Given the express operative dates as 
to the expiration of the collective bargaining agreement and the 
commencement of individual services, the lack of any reference to the 
collective bargaining agreement other than the oblique reference to 
salaries and the lack of any other evidentiary facts suggesting 
incorporation, we cannot conclude that the Superior Court erred in its 
finding that the individual contract did not incorporate any right to a
hearing upon non-renewal of the probationary contract.  See M.S.A.D. 
No. 43 Teachers' Association v. M.S.A.D. No. 43 Board of Directors, Me., 
432 A.2d 395, 397-98 (1981); cf.  Local 1574, International Association 
of Machinists and Aerospace Workers v. Gulf & Western Manufacturing Co., 
417 F. Supp. 191, 198 (D. Me. 1976) (incorporation of pension plan into 
collective bargaining agreement).

     After concluding that no hearing right existed within the terms of 
the individual contract, the Superior Court then examined whether a 
hearing right contained in the collective bargaining agreement survived 
the expiration of that agreement.  Concluding that the hearing provision 
was a lawful albeit permissive subject of bargaining, the court 
determined that as a permissive subject, the hearing provision did not 
survive the expiration of the collective bargaining agreement. We need 
not reach the question of whether the provision in question is lawful or 
whether it is a mandatory or permissive subject of collective bargaining 
because we find that unilateral alteration of the terms of a collective 
bargaining agreement after the expiration of that agreement does not 
result, under the circumstances of this case, in a breach of contract.

     It is a well-established rule of labor law that an employer may not
unilaterally alter the terms and conditions of employment after the 
expiration of a collective 

bargaining agreement.[fn]2  See, e.g., NLRB v. Haberman  Construction 
Co., 618 F.2d 288, 302-303 (5th Cir. 1980), modified in part on rehearing 
en banc, 641 F.2d 351 (1981); Pasco County School Board v.Florida Public 
Employees Relations Commission, 353 So.2d 108, 122-123 (Fla.  Dist. Ct. 
App. 1977); Appeal of Cumberland Valley School District, 483 Pa. 134, 
141, 394 A.2d 946, 950-51 (1978); Easton Teachers Association v. Easton 
School Committee, MLRB Case No. 79-14 at 3-5 (March 13, 1979).  This 
rule, however, is not based upon contract law.  It is based on the 
principle that unilateral alterations of the collective bargaining 
agreement are in contravention of the statutory duty to bargain in good 
faith.  See, e.g., NLRB v. Katz, 369 U.S. 736, 742-743, 8 L. Ed. 2d 230, 
236, 82 S. Ct. 1107 (1962); Easton Teachers Association v. Easton School 
Committee, MLRB No. 79-14 at 3-5 (March 13, 1979).  Unilateral changes 
have also been viewed as violative of the statutory proscription against 
interfering with the exercise of collective bargaining rights.  Appeal of 
Cumberland Valley School District, 483 Pa. at 139, 394 A.2d at 949.  But 
see Appeal of Cumberland Valley School District, 483 Pa. at 147-48, 
394 A.2d at 953-54 (Pomeroy, J. concurring).  Accordingly, when an 
employer initiates a unilateral change in violation of his statutory 
responsibilities, he commits an unfair labor practice.  That action, 
however, does not necessarily result in a breach of contract. Cf.  
Milwaukee Typographical Union No. 23 v. Madison Newspapers, Inc., 444 F. 
Supp. 1223, 1227 (W.D. Wis. 1978) (court without jurisdiction to hear 
claim based on violation of expired contract because court can only hear 
contract claims; violation may be unfair labor practice cognizable by 
NLRB), aff'd without opinion, 622 F.2d 590 (7th Cir. 1980); accord 
International Union, United Automobile, Aerospace & Agricultural 
Implement Workers v. Atlas Tack Co., 590 F.2d 384, 386 (1st Cir. 1979); 
Rae v. United Parcel Service, 356 F. Supp. 465, 467-68 (E.D. Pa. 1973).

     In the instant case, Lane does not contend that the school 
authorities committed a prohibited labor practice under 26 M.R.S.A. 
 964.  Rather, she asserts that the collective bargaining agreement was 
breached.  However, no contract was in existence at the time of the 
defendants' notification of non-renewal and refusal to grant a hearing.  
Inasmuch as Lane has limited her claim to that of breach of contract and 
no contract exists in the instant case, we hold that the Superior Court 
judgment for the defendant was not in error.  We express no opinion on 
the questions of whether the hearing provision of the collective 
bargaining agreement was lawful or whether the term is a mandatory or 
permissive item of collective bargaining.

     The entry is:

     Judgment affirmed.

     All concurring.

2.  Three generally recognized exceptions to this rule are (1) where
bargaining has reached an impasse, (2) where the union has waived its 
right to insist on bargaining over the alteration and (3) where the 
change is required by law.  See Easton Teachers Association v. Easton 
School Committee, MLRB No. 79-14 at 5 (March 13, 1979); Note, Application 
of the Mandatory-Permissive Dichotomy to the Duty to Bargain and 
Unilateral Action: A Review and Reevaluation, 15 William and Mary L. Rev. 
910, 932 (1973-1974).