This case comes to the Public Employees Labor Relations Board by way of a Prohibited Practice Complaint dated March 3, 1975, and filed on March 5, 1975, by Clarke B. Smith, President, Cape Elizabeth Teachers Association and Peter A. Brawn, Chief Negotiator, Cape Elizabeth Teachers Association. The Answer to the Prohibited Practice Complaint was dated March 10, 1975, and filed on March 11, 1975, by William E. McKinley, Esquire, attorney for the Cape Elizabeth School Board and for J. William Dodd, the Respondents.

A pre-hearing conference was held in this matter in Portland, Maine, on April 28, 1975, with Alternate Chairman Donald W. Webber presiding. Present for the Complainants was John Alfano, UniServ Director. Present for the Respondents was William E. McKinley, Esquire. As a result of the pre-hearing conference, a Pre-Hearing Memorandum and Order was issued on May 2, 1975, the contents of which are incorporated herein by reference, and which further provided, pursuant to the agreement of the parties, that the matter should be submitted to the Board on briefs. The briefs of the parties were duly filed and the Board convened on Tuesday, August 12, 1975, to discuss the matter. The Board concluded that additional factual information was necessary and a limited factual hearing was held on Tuesday, August 19, 1975, at 10:00 a.m. in the Portland Jetport Conference Room.

Jurisdiction

Neither party has disputed the jurisdiction of the Public Employees Labor Relations Board to hear this matter, and we conclude that this Board has jurisdiction to hear this case as provided in 26 M.R.S.A. § 968.

Findings of Fact

The parties, by their pleadings in this matter, have agreed:

(1) That the Cape Elizabeth Teachers Association in the Town of Cape Elizabeth is a public employee organization within the provisions of 26 M.R.S.A., Chapter 9-A, and is the bargaining agent for all teachers employed by the Cape Elizabeth School Board.

(2) That Clarke B. Smith, 356 Mitchell Road, Cape Elizabeth, is the current duly elected president of plaintiff Association.

(3) That Peter A. Brawn, 64 Scott Dyer Road, Cape Elizabeth, is the current duly appointed chief negotiator of plaintiff Association,

(4) That defendant Cape Elizabeth School Board, having a place of business at the Office of the Superintendent, Town Hall, Cape Elizabeth, Maine, 04107, is the duly elected municipal body in said Town charged with the operation of all public schools therein and is a public employer within the provisions of 26 M.R.S.A., Chapter 9-A.

(5) That Guy Rowe, 20 Delano Park, Cape Elizabeth; Nancy Benoit, 9 Wood Road, Cape Elizabeth; Janet Hannigan, Spurwink Avenue, Cape Elizabeth; Peter Rich, 1221 Shore Road, Cape Elizabeth; and Paul Wescott, 12 Sea View Avenue, Cape Elizabeth; are duly elected or appointed members of defendant School Board and J. William Dodd is the duly appointed Superintendent of Schools and agent of the defendant School Board.

(6) The defendant School Board entered into a collective bargaining agreement with plaintiff Association effective September 1, 1974, and continuing to August 30, 1975. Said collective bargaining agreement contains a recognition article which recognizes the Cape Elizabeth Teachers Association as the bargaining agent for a unit composed of all teachers employed by the Cape Elizabeth School Board.

(7) That on or about February 5, 1975, the Cape Elizabeth Teachers Association by its chief negotiator Peter A. Brawn, sent a letter which stated, "This serves as notice that the Cape Eliza­ beth Teachers Association is requesting a meeting within ten (10) days to negotiate the proposed reduction in the total number of members in the bargaining unit due to budgeting problems."

(8) That Respondent acknowledged receipt of said ten day notice by letter dated February 6, 1975.

(9) That by letter dated February 7, 1975, Complainant Association President Clark B. Smith requested reasons for and the list of positions to be eliminated by the Board. Complainant also requested criteria which the Board was using to determine those positions to be eliminated and the method by which the teachers would be selected.

(10) By letter dated February 10, 1975, Respondent Superintendent acknowledged receipt of the letter of February 7, 1975.

(11) To the date of Respondent's answer to the Prohibited Practice Complaint, said request of February 7, 1975 has remained unanswered.

(12) That on or about March 1, 1975, the Superintendent of Schools notified teachers in the bargaining unit that their employment would not be continued for the 1975-76 school year. The Association was never afforded the opportunity to negotiate substance of the reasons, criteria used to determine which teachers were to be terminated, nor the impact of that termination upon the affected teachers.

We find that neither the present collective bargaining agreement nor the previous collective bargaining agreement contain provisions for (1) order of discharge, (2) order of recall, (3) severance, or (4) impact on working conditions. Additionally, the present collective bargaining agreement does not contain a so-called "zipper clause." During negotiations for the present collective bargaining agreement, two proposals were made by the Association:

(1) No teacher shall be disciplined, reprimanded, suspended, demoted, transferred, dismissed or suffer the nonrenewal of a contract without sufficient prior written warnings, reasonable opportunity to improve and a hearing before the Board if requested by the teacher.

In addition, no teacher on continuing contract shall be dismissed, suffer the nonrenewal of a contract or otherwise be deprived of an employment advantage without just and sufficient cause.

(2) No significant change in educational policy will be implemented without prior meeting and consultation with authorized representatives of the Association.

No change in educational policy will be implemented without prior negotiations with the Association over any possible impact on the wages, hours and working conditions of the employees affected.

We find that both proposals made by the Association concern procedures (e.g. no dismissal unless just cause) rather than matters of substance (e.g. modification in work load of'individual teachers resulting from change in staffing requirements). We have already found that the previous collective bargaining agreement did not contain provisions relating to (1) order of discharge, (2) order of recall, (3) severance, or (4) impact on working conditions, and the two foregoing contractual proposals relating to discipline and change in educational policy are not indicative that any of the demands relating to the four previous items concerning discharge and recall have been negotiated away during the bargaining process for the 1975-76 successor agreement. We find that the two contractual proposals relating to discipline (just cause) and educational policy
were negotiated away during the negotiations for the 1975-76 collective bargaining agreement; however, this bargaining away of the ''just cause'' proposal and the ''educational policy" proposal do not constitute negotiations on the discharge, recall, severance, or impact on working conditions issues raised by the complainant Association.

We believe our recently issued decision in the Veazie matter (Case No. 75-01) is dispositive of some of the questions raised in the instant case. In Veazie, this Board found that it was within the realm of educational policy for a school board to determine whether a particular position is continued or discontinued for an upcoming school year.

The Biddeford decision holds that the issue of "whether a particular subject ... is to be taught as part of the curriculum or whether a special type of service (such as guidance counseling, remedial reading or library) is to be offered" is left to the school committee. 304 A.2d 422 - 423. The impact of that decision is then negotiable on the remaining teachers in the bargaining unit. As a matter of educational policy, it is within the prerogative of the school committee to discontinue both the subject of library science and the position of Librarian/Resource Center Specialist. If the elimination of this position impacts the remaining teachers in the bargaining unit, it is then necessary for the parties to enter into good faith negotiations with respect to that impact and how it might affect the remaining members of the bargaining unit. The requirement to negotiate impact is consistent with our decision in the Westbrook matter, Case No. 75-17.

Kathryn Richards and Claudia Bunting v. Veazie School Committee, PELRB Case No. 75-01.

Accordingly, it is our opinion that the notice to negotiate contained in Exhibit A and the letter of the Cape Elizabeth Teachers Association dated February 7, 1975, and marked Exhibit C (both Exhibits being appended to the Prohibited Practice Complaint in this matter) do set forth a valid request for negotiations but that these documents, at the same time, introduce an element into those negotiations which is clearly reserved to the Cape Elizabeth School Board. The designation of the jobs to be eliminated and the teachers who are to be terminated is one which is left to the managerial discretion of the Cape Elizabeth School Committee, to the extent that such decisions are not violative of § 964 of the Public Employees Labor Relations Act (there being no such allegations made in this case).

On the other hand, our decisions in Westbrook (Case No. 74-17) and Veazie (Case No. 75-01) suggest that when matters relating to discharge, recall, severance, and impact on working conditions are not contained in a previous collective bargaining agreement and were not negotiated away during the course of negotiations for a successor agreement, then it is proper to commence negotiations with respect to these matters when conditions have changed or will change and these changes are not specifically covered under the terms of a collective bargaining agreement. If, as in the instant case, there is a collective bargaining agreement in effect which does not contain a so-called "zipper clause," the obligation to bargain continues with respect to new issues which arise during the course of the administration of the collective bargaining agreement when those new issues are neither contained in the terms of the contract nor negotiated away during bargaining for that contract or a successor agreement.

This case can be distinguished from the Veazie case (Case No. 75-01) to the extent that there has been no successor collective bargaining agreement executed between the parties to the complaint. A contrary situation was apparent in the Veazie matter where the parties had sustained the impact of a change in staffing but had subsequently signed a successor collective bargaining agreement after having ample notice and opportunity to negotiate on the matters of impact resulting from the change in staffing requirements directed by the Veazie School Committee.

In this case, there has been no evidence presented to this Board to indicate that the substance of any of the four areas of discharge, order of recall, severance, or impact on working conditions, has been negotiated away by the Complainants herein nor has a successor collective bargaining agreement, to our knowledge, been executed which would indicate that the Complainants have withdrawn their demands to negotiate on these issues. Therefore, we must conclude that the Respondents have failed to confer and negotiate in good faith as required by § 965, ¶ 1, Sub-¶ C, of the Public Employees Labor Relations Act [Chapter 9-A, Title 26, Maine Revised Statutes] and have thus violated the provisions of § 965, ¶ 1, Sub-¶ E, of the Act.

The testimony heard by this Board at the hearing on August 12, 1975, revealed that both parties have continued to confer and negotiate with respect to issues which remain unresolved in the pursuit of their successor collective bargaining agreement for the coming school year. This conduct leads us to conclude that the parties have maintained a good faith negotiating relationship and, accordingly, our order in this case shall only direct that they continue their existing practice of meeting and negotiating with respect to issues unresolved for the prospective collective bargaining agreement. We are confident that these negotiating efforts are meeting with success and commend the parties on being able to resolve a substantial number of the issues raised in collective bargaining through their own negotiating efforts.

ORDER

On the basis of the foregoing findings of fact and by virtue of and pursuant to the powers granted to the Public Employees Labor Relations Board by the provisions of § 968 of the Public Employees Labor Relations Act, it is ORDERED:

(1) That, within 15 days from the date of this Decision and Order , the parties hereto will meet and negotiate with respect to (1) order of discharge, (2) order of recall, (3) severance, and (4) impact on working conditions resulting from the elimination of positions formerly employed by the Cape Elizabeth School Department; and

(2) That each party hereto shall, within 30 days of the receipt of this Decision and Order, notify the Public Employees Labor Relations Board, in writing, at its offices in Augusta, Maine, of what steps it has taken to comply with the provisions of this Decision and Order.

Dated at Augusta, Maine, this 16th day of October, 1975.