STATE OF MAINE MAINE LABOR RELATIONS BOARD
MLRB No. 78-IR-01
___________________________
)
PERU TEACHERS ASSOCIATION )
)
and ) INTERPRETATIVE RULING
) (Joint Request)
PERU SCHOOL COMMITTEE )
___________________________)
On February 9, 1978, representatives of the Peru Teachers Association and the
Peru School Committee jointly submitted the following request for an interpretative
ruling to the Maine Labor Relations Board ("Board"):
Is the following contractual provision a mandatory subject
of bargaining, a non-mandatory subject of bargaining, or
educational policy:
Article VIII, (A)(1) Required to Perform Non-
Professional Assignments: A teacher shall not
be required to perform non-professional assign-
ments including collecting of milk and lunch
money, distribution of milk and lunch, super-
vision of school buildings and playgrounds
during recess and daily lunch periods.
The Board considered the joint request on March 3, 1978, and decided to afford
the parties the opportunity to file legal memoranda on the question. All legal
memoranda were filed by March 24, 1978. The Board proceeded to deliberate on the
joint request for an interpretative ruling at a conference held June 20, 1978,
Alternate Chairman Donald W. Webber presiding, with Michael Schoonjans, Employee
Representative, and Kenneth T. Winters, Alternate Employer Representative.
As stated in the joint request and in the legal memoranda, the following facts
underlie the parties' submission of the joint request to this Board.
Negotiations between the parties over a successor collective bargaining agree-
ment for the 1977-78 and 1978-79 school years were conducted for more than one year.
After two mediation sessions, all issues in dispute were resolved except for the
question which has been submitted to this Board for an interpretative ruling. All
sections of the agreement except for the provision in dispute have been implemented.
The School Committee's position is that the clause "supervision of school buildings
and playgrounds during recess and daily lunch periods" should be deleted from the
proposed contractual provision, while the Teachers Association contends that the
contractual language should be retained as it has appeared in collective bargaining
agreements between the parties since 1973. The parties have agreed to be bound by
our interpretative ruling on the collective bargaining nature of the contractual
provision.
In rendering our interpretative ruling, we find it necessary to distinguish
between the non-professional assignments described in the contractual provision.
As discussed more fully below, we believe that teacher supervision of school
buildings and playgrounds during recess and daily lunch periods is a matter of
educational policy which accordingly must remain outside the scope of mandatory
collective bargaining. However, as for teacher performance of such non-supervisory
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duties as collecting milk or lunch money or distributing milk or lunch to students,
we are of the opinion that such tasks are not matters of educational policy.
Teacher performance of these non-supervisory tasks, we conclude, is a mandatory
subject of collective bargaining.
The pertinent statutory provision is 26 M.R.S.A. 965(1)(C), which provides
in relevant part that the public employer and the bargaining agent are mutually
obligated
"To confer and negotiate in good faith with respect to wages,
hours, working conditions . . . except that public employers
of teachers shall meet and consult but not negotiate with
respect to educational policies . . . educational policies shall
not include wages, hours, working conditions . . ."
The critical question presented for our determination then, is whether the
assignments described in the contractual provision are matters of "educational
policies" about which the public employer is required to meet and consult but not
negotiate, or "working conditions," which under 26 M.R.S.A. 965(1)(C) are man-
datory subjects of bargaining. In making our determination, we are guided by
Justice Wernick's analysis of 26 M.R.S.A. 965(1)(C) in City of Biddeford v.
Biddeford Teachers Ass'n., 304 A.2d 387 (Me. 1973).
After noting that the terms "educational policies" and "working conditions"
"may be reasonably conceived as categories defining areas with essential purity at
the extremities but with intermediate zones of substantial intermixture" (304 A.2d
at 418), Justice Wernick concluded that the legislature's "double emphasis"
in 26 M.R.S.A. 965(1)(C) upon the concept of "working conditions" is designed to
prevent the emasculation of teacher "working conditions" as a mandatory subject of
collective bargaining (304 A.2d at 419-420). Such double emphasis - "first, . . .
by affirmative definition teacher 'working conditions' are explicitly included
within mandatory collective bargaining and, second, by negative exclusion
'working conditions' are eliminated from the effects of 'educational policies'"
(304 A.2d at 419) - means, Justice Wernick concluded, that the legislature intended
teacher "working conditions" to be bilaterally negotiable even though a particular
working condition might "tend to encroach upon the 'managerial' organization,
supervision, direction or distribution of the working personnel" (304 A.2d at 419).
Accordingly, Justice Wernick found that duties related to teacher working conditions
were prima facie eligible for collective bargaining, and that such prima facie
eligibility could be overridden only if the quantitative number and/or qualitative
importance of functions "generally cognizable as 'managerial' and 'policy making'
. . . are found significantly substantial" (304 A.2d at 420).
Justice Wernick then applied his general analysis of the "working condition" -
"educational policy" dichotomy found in 26 M.R.S.A. 965(1)(C) to several specific
questions involving teacher duties. As for a question concerning the length of a
teacher's working day, Justice Wernick held that such a matter fell within the realm
of educational policy because "significantly more substantial intrusions into 'policy'
areas, - over and above encroachment simply upon the 'managerial' supervision, organi-
zation, direction and distribution of personnel - become involved" (304 A.2d at 421).
Such "substantial intrusions" involved, Justice Wernick stated, were "foundational
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educational value judgments" relating to use of new educational techniques such
as electronic aids, open classrooms, team teaching programs and subject-matter
modifications. On the other hand, in deciding a question relating to the attend-
ance of teachers at school at times other than when the students are in attend-
ance, Justice Wernick ruled that such a matter is to be regarded as a working
condition of teachers because the matter lacks "significant relationships to non-
teacher interests of a quantitative and qualitative magnitude sufficient to negate
collective bargaining" (304 A.2d at 422).
This Board received its first opportunity to consider 26 M.R.S.A. 965(1)(C)
as it applies to a public employer of teachers in Bradford Ingerson and Millinocket
Education Ass'n v. Millinocket School Committee (M.L.R.B. Case No. 77-39)(1977).
There, the question presented was whether pre-school and playground duty for
teachers is a working condition or an educational policy. Relying upon Justice
Wernick's application of his analysis of 26 M.R.S.A. 965(1)(C) to the specific
questions presented in City of Biddeford, supra, we held that "pre-school and noon
playground duties relating to the attendance of teachers at school at times when
students will be in attendance are matters of educational policy and intended to
remain outside the scope of mandatory collective bargaining" (page 4) (emphasis in
original).
We believe that our interpretative ruling on the clause in the contract provi-
sion concerning teacher supervision of school buildings and playgrounds during re-
cess and lunch periods is governed by our holding in Bradford Ingerson_and Millinocket
Education Ass'n, supra. As was the case in Bradford Ingerson and Millinocket Educa-
tion Ass'n, we believe that a substantial "managerial" consideration - over and
above encroachment upon managerial supervision, organization, direction and distri-
bution of personnel - is involved in the question of teacher supervision of students.
This consideration is the necessity that school districts and towns take all possible
steps to avoid both civil liability for injuries to students as well as damage to
school buildings and equipment while the students are present at school. We believe
that the qualitative importance of this consideration overrides the prima facie
eligibility for collective bargaining of questions concerning teacher supervision of
school buildings and playgrounds while students are in attendance. Consequently,
we interpretatively rule that the clause "supervision of school buildings and play-
grounds during recess and daily lunch periods" involves a matter of educational
policy which, under 26 M.R.S.A. 965(1)(C), remains outside the scope of mandatory
collective bargaining.
We do not, however, find any similar substantial intrusions into policy areas
associated with the assignments described in the remaining contractual language.
Unlike the supervising of students, tasks involving menial, administrative duties
such as collecting milk and lunch money or distributing milk and lunch to students
do not, we believe, involve any material functions significant enough to over-
ride the prima facie eligibility of these duties for collective bargaining. Al-
though these tasks may encroach somewhat upon managerial organization, supervision,
direction or distribution of working personnel, such encroachment by itself clearly
is not sufficient to negate collective bargaining on these matters. We accordingly
interpretatively rule that the contractual clause "collecting of milk and lunch
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money, distribution of milk and lunch" involves a "working condition" of teachers
about which the public employer is obligated to negotiate, should the public em-
ployer desire that such duties be performed by teachers. We believe that a contrary
ruling could, in Justice Wernick's words in City of Biddeford, supra, "transform
teacher collective bargaining . . . into a litany noble in sound but hollow in
reality" (304 A.2d at 419).
Our conclusion that the contractual clause concerning teacher supervision of
school buildings and playgrounds involves a matter of educational policy is not
changed by the fact that the School Committee may have negotiated over the clause in the
past. The fact that a matter of educational policy may have been negotiated and in-
cluded in a prior collective bargaining agreement does not result in transforming the
educational policy into a mandatory subject of bargaining in subsequent negotiations.
Agreement reached on a matter of educational policy does not forever obligate bargain-
ing on the matter. A ruling to the contrary would represent a deterrent to highly
desirable free and full discussion and negotiation on matters of educational policy.
Consequently, we believe that the School Committee did not "waive" its right to
claim the contractual clause involves a non-negotiable matter of educational policy
by negotiating over and agreeing to inclusion of the clause in previous collective
bargaining agreements between the parties.
All statements in this interpretative ruling are advisory only, since binding
determinations by this Board are restricted by statute to actual cases presented to
it.
Dated in Augusta, Maine, this 10th day of July, 1978.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Donald W. Webber, Alternate Chairman
/s/________________________________________
Michael Schoonjans, Employee Representative
/s/________________________________________
Kenneth T. Winters, Alternate Employer
Representative
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