STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                                 Case No. 78-15
(Mount Vernon)                  )           
               Complainant      )
  v.                            )           DECISION AND ORDER
MOUNT VERNON SCHOOL COMMITTEE   )                             
                 Respondent     )                   

     This case comes to the Maine Labor Relations Board by way of a prohibited
practice complaint dated November 17, 1977, and filed on November 22, 1977, by
F. Stewart Kinley, UniServ Director; Lora Duley, Negotiator; June Wagner,
President; and Sarah Bean, Negotiator.  The Response to the aforesaid complaint
was dated December 14, 1977, and filed with the Board on December 16, 1977, by
Millard D. Harrison, Superintendent of Schools.
     A pre-hearing conference was held in this matter at Augusta, Maine, on
December 20, 1977, at 1:30 p.m. with Alternate Chairman Donald W. Webber
presiding.  As a result of the pre-hearing conference, a Pre-Hearing Conference
Memorandum and Order was issued on December 23, 1977, the contents of which are
incorporated herein by reference, and which further provided that the matter be
submitted to the Board on briefs.  Legal memoranda were filed by both parties by
January 30, 1978.  The Maine Labor Relations Board, meeting on March 3, 1978,
and March 14, 1978, proceeded to deliberate on this case, Chairman Walter E. 
Corey, presiding with Michael Schoonjans, Employee Representative and Kenneth T.
Winters, Employer Representative.
     Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter and we conclude that this Board has jurisdiction to hear
and render a decision in this case as provided in 26 M.R.S.A. Section 968(5).
                                FINDINGS OF FACT
     Upon review of the Pre-Hearing Conference Memorandum and Order as well as
the pleadings, the Board finds:
          1.  The Complainant, Lakes Teachers Association (hereinafter
              referred to as the Association) is an unincorporated association
              located at Mount Vernon, County of Kennebec, State of Maine,
              and was recognized as bargaining agent for "teachers" within
              the school system of Mount Vernon.
          2.  The Respondent, members of the Mount Vernon School Committee
              (hereinafter referred to as the Committee) is the duly author-
              ized school comittee of Mount Vernon and is a public employer
              as defined by Title 26 M.R.S.A. Section 962(7).
          3.  Millard Harrison is and has been at all times material herein
              the Superintendent of School Union #42 of which Mount Vernon is
              a member.
          4.  There has been a collective bargaining agreement in effect be-
              tween the parties to the Complaint and said agreement expired on
              August 31, 1977.
          5.  The Association is the recognized bargaining agent for the en-
              tire group of full-time classroom teachers employed by the
              Board, excluding the Superintendent, Assistant Superintendent
              and Principal.
          6.  The Association at all times material herein has been represented
              in negotiations by a team consisting of Lora Duley, June Wagner and
              Sarah Bean.
          7.  In January, 1977, negotiations over a proposed 1977-78 successor
              agreement commenced.
          8.  Although negotiations between the parties have occurred, including
              mediation, there still remain several unresolved issues, including
              salaries to be paid for the 1977-78 contract year.
          9.  At all times material herein, teachers who taught in the 1976-77
              school year in Mount Vernon and who have been reemployed for the
              1977-78 school year are being paid at the same rate as for the
              1976-77 school year.
         10.  On August 29, 1977, two days prior to the expiration date of the
              collective bargaining agreement, the Committee, without negotia-
              tions or prior consultation, contracted with a teacher having no
              prior experience to receive $7,800 for the 1977-78 school year,
              when the existing collective bargaining agreement provided for
              a starting salary of $6,900.
         11.  Of the three teachers at the top of the salary scale in the con-
              tract, two of them having prior experience and AB degrees, re-
              ceive $9,600 annually and one having prior experience and an MA
              degree receives $10,570 annually.  The teacher without prior
              experience, newly employed during negotiations for a new collec-
              tive bargaining agreement, receives $7,800 annually.
     It is well established by prior decisions of this Board that an employer who
makes a change in wages, hours or working conditions without bargaining the change
with the certified bargaining agent, violates the duty to negotiate in good faith
as required by 26 M.R.S.A.  965(1)(C) in violation of 26 M.R.S.A.  9614(1)(E).
[Oxford Hills Teachers Association v The Board of Directors of Maine School Admin-
istrative District No. 17 MLRB Case No. 73-06 (1973) and Truck Drivers, Warehouse-
men and Helpers Union, Local No. 340 v Rockland City Council et al. MLRB Case No.
77-16 (1977)] This doctrine has been applied consistent with the decision of the
National Labor Relations Board in NLRB v Katz, et al., 369 U.S. 736, 82 S. Ct.
1107, 8 L Ed2d 230 (1962) and has been applied to cases where the change increased
the benefits to employees, Local 1458 of Council 74 of the American Federation of
State, County and Municipal Employees, AFL-CIO v The City Council of Augusta et al.
MLRB Case Nos. 74-09 and 74-14 (1974) as well as those which decrease a past bene-
fit. Local 1828 of Council 74 of the American Federation of State, County and
Municipal Employees v The City Council of South Portland et al. MLRB Case Nos. 73-13 
and 73-14 (1973).

     In the present case, the Mount Vernon School Committee hired a new teacher
at a salary above the applicable salary contained in the collective bargaining
agreement, prior to the expirat ion of the agreement and during negotiations on a
successor agreement.  Although such conduct may result from benign neglect, its
effect on the certified bargaining agent can be extremely harmful and cannot be
excused.  Therefore we conclude that the Mount Vernon school Committee committed a
per se violation of the obligation to negotiate in good faith contained in 26 M.R.S.A.
 965(1)(C) and 26 M.R.S.A.  9614(1)(E) by unilaterally changing the wage scale of
an employee in an organized unit without bargaining that change with the certified
bargaining agent.
     To remedy the violation, it would not be appropriate to require the employee
to refund the excess payment since such a requirement would injure a person who
was, according to the facts presented to this Board, an innocent beneficiary of
the unlawful conduct and the party that committed the violation would benefit from
the refund.  It would also not be appropriate to increase the salaries of all other
teachers in the system to compensate for the overpayment to one teacher.
     We conclude that the salary of the individual paid in excess of the contract
should be maintained at the individually negotiated entry level until the salary
scale collectively negotiated reflects the individual's entry level but the indi-
vidual would continue to be eligible for all longevity increases.
     On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
Section 968 of the Municipal Public Employees Labor Relations Act, it is ORDERED:
     1)  That the Mount Vernon School Committee, its representatives, servants
         and agents cease and desist from engaging in any of the acts prohibited
         by 26 M.R.S.A. Section 964(1) and especially from refusing to bargain
         collectively with the bargaining agent of its employees as required by
         Section 965.
     2)  That the Mount Vernon School Committee retain Rebecca Livingston on her
         present individually negotiated contract salary until the entry level
         salary scale collectively negotiated reflects the individually nego-
         tiated level but Rebecca Livingston will continue to be eligible for
         all longevity increases.
Dated at Augusta, Maine, this 3rd day of May, 1978.
                                  MAINE LABOR RELATIONS BOARD

                                  Walter E. Corey, Chairman

                                  Kenneth T. Winters, Employer Representative

                                  Michael Schoonjans, Employee Representative