STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 79-24

                          Complainant, )
  v.                                   )               DECISION AND ORDER
                          Respondent.  )

     The East Millinocket Teachers Association ("Association") filed the
prohibited practice complaint in this case on October 2, 1978.  The East
Millinocket School Committee ("School Committee") filed its response on
October 19, 1978.  A pre-hearing conference was held on November 17, 1978 by
Alternate Chairman Donald W. Webber, who issued a Pre-Hearing Conference
Memorandum and Order on November 20, 1978, the contents of which are
incorporated herein by reference.

     The matter was heard by the Maine Labor Relations Board ("Board") on
January 24, 1979, Alternate Chairman Webber presiding, with Paul D. Emery,
Employer Representative, and Paul Haney, Alternate Employee Representative.
The Association was represented by Milton R. Wright and the School Committee
by Anthony J. Peverada, Jr.  Both parties filed post-hearing briefs and reply
briefs and the Board proceeded to deliberate over the case.


     The School Committee has challenged the jurisdiction of the Board in this
case on the grounds that the matter could be subject to grievance and arbitra-
tion and therefore the Board is not the proper forum.  The Board has juris-
diction to hear and render a decision as provided in Title 26 M.R.S.A.  968
(5) as discussed in Part I below.

                               FINDINGS OF FACT

     From the entire record In this case, the contentions of the parties, and
the observation of the witnesses and their demeanor, the Board finds that:

     1.  Complainant Association is the recognized bargaining agent for a
         unit of teachers in the employ of the School Committee.  26 M.R.S.A.
          962(2).  Respondent School Committee is the public employer of
         the teachers in this unit.  26 M.R.S.A.  962(7).

     2.  The parties have a collective bargaining agreement in effect from
         September 1, 1977 to August 31, 1979 ("Agreement").  The Agreement
         contains no provisions concerning either the posting of curricular
         and extracurricular job openings or the negotiation of the impact
         on working conditions of changes in extracurricular job duties or
         positions.  The Agreement does contain a provision on its Extra-
         Curricular Salary Schedule for an "Athletic Director":  the salary
         is $800.  This schedule also states:


             "The School Committee may delete or add activities.
              Pay will be set by the Committee on new programs which
              are introduced for the first time.  The amount paid will
              be negotiated in future contracts."

     3.  On June 8, 1978, the School Committee voted to create the extra-
         curricular position of "Head of Department for Physical Education"
         which position was to include Athletic Director responsibilities
         and which would carry the higher salary of $1500.  The man who
         had served as Athletic Director had submitted a letter of resigna-
         tion from that position prior to this vote; he was assigned to the
         higher paying position.  A job description describing the extra
         duties was then prepared.  This position was created as a temporary
         one pending the result of negotiations on a successor agreement.

     4.  On June 13, 1978 the School Committee posted an announcement of
         these actions on all school bulletin boards and notified each
         teacher by letter.  The position was not posted as a job opening
         prior to its being filled.

     5.  Mr. Edward Savage, Superintendent of Schools, and Mrs. Kathleen
         Nisbett, President of the Association, met and exchanged letters
         concerning whether this action violated the contract, affirmative
         action guidelines,  or past practice.  President Nisbett had claimed,
         among other things, that the action had created morale problems.
         Superintendent Savage took the position that there was no contract

     6.  The Association did not then or at any time subsequent utilize the
         grievance procedure of the Agreement which defines "grievance" as
         "any alleged violation of this agreement or any dispute with respect
         to its meaning or application."  However, at some point Mr. Wright
         drafted a "10 day letter" dated June 16, 1978 for President Nisbett's
         signature requesting that the School Committee meet for negotiations.

     7.  This letter was received by Mr. Paul Noddin, Chairman of the School
         Committee, on June 24, 1978.  The entire body of the letter follows:

                "The East Millinocket Teachers Association hereby invokes
              the provisions of MRSA  965 1B for the purpose of negotiating
              the following:

                 1.  The impact of absorbing the duties of Athletic
                     Director into the position of Department Head
                     Physical Education.

                 2.  The posting of curricular and extra-curricular
                     job openings.

                 Will you please contact me to set an appropriate time, date
              and place for this negotiating session."

     8.  Chairman Noddin replied by letter dated June 28, 1978, that the
         action of the School Committee was proper under the Agreement.
         He indicated that he would negotiate the salary for the new posi-
         tion in future agreements, "but not at the present time."  The
         School Committee did not meet or make any attempt to meet with the
         Association concerning the two proposed subjects within 10 days of
         receipt of the letter by Chairman Noddin.  It has not to date
         indicated a willingness to negotiate these subjects.

     9.  There is no bargaining history between the parties on either of the
         two subjects.  In particular, the subjects were not proposed in nego-
         tiations for the current Agreement.  The Agreement is silent with
         respect to the mid-term negotiation of subjects not covered therein.

    10.  The practice concerning the posting of vacancies in extracurricular
         positions in the past has not been uniform.  Most of the time it has
         been done.  Sometimes it has not.  No consistent practice is evident.


    11.  Violations of the Agreement were not alleged in the complaint
         nor at the hearing.  The Association conceded from the outset
         of the hearing that the School Committee had the right under
         the Agreement to take the action it did in creating and filling
         the new position.

    12.  Mr. Wright indicated in answer to a question from the Board that
         in addition to morale of the other teachers, he intended to nego-
         tiate the impact of the new Head of Department position on at least
         the teacher's class load, his other duties and work load, and the
         possible need for an aide.  Superintendent Savage indicated that
         the Committee intended to discuss these issues in the fall and that
         that is why they labelled the position "temporary."


     The Teachers Association maintains that the School Committee has violated
the duty to bargain collectively contained in 26 M.R.S.A.  964(1)(E) through
 965(1)(B) by failing to meet within 10 days of written notice of a request
to meet for the collective bargaining purposes of negotiating (a) the impact
of absorbing the duties of one extracurricular job into another and (b) the
posting of job openings.  It also argues that there has been a unilateral
change in past practice regarding the posting of job vacancies.

     The School Committee responds initially that the Board has no jurisdic-
tion and is not the proper forum for this complaint since the matter is
subject to grievance and final and binding arbitration.  As to the merits of
the complaint it argues that there is no violation of the duty to bargain
collectively by negotiating these two subjects because it based its actions
upon the contract.  Further, with respect to the "impact" issue it argues that
"impact" has no meaning outside of the context of educational policy and that
the Association has waived its right to question the School Committee's con-
duct by conceding the existence of a contractual justification.  With respect
to the subject of posting it argues that its conduct has been consistent with
past practice and that it is protected because the contract is silent about
the subject.

     We conclude that the School Committee has violated the duty to bargain
collectively by failing to meet with the Association to negotiate the two
subjects proposed within 10 days as required by  965(1)(B).  There has been
no unilateral change of conditions but the School Committee's arguments con-
cerning deferral, contractual right, waiver, and past practice are rejected
with respect to the duty to bargain these two subjects.  Were this a case
involving a claim of contract violation, as the School Committee apparently
believes, its arguments could be on point.  However, it is not the change of
job duties or the failure to post a vacancy before filling it that is
challenged in this case.  Rather, it is the conduct of the School Committee
in failing to honor a request to negotiate (a) the impact of the change and
(b) the new subject matter of the posting of job vacancies.


     This case is not appropriate for deferral to grievance arbitration
because no contract violation has been alleged.  Both sides agree that the
contract has been followed.  Thus, contract grievance procedures are not
available, a circumstance necessary to trigger the Board's deferral policy.
See, e.g., MSAD #45


Teachers Association v. MSAD #45 Board of Directors, MLRB No. 78-10 (1978).
Accordingly, there is no basis for deferral.

     It is worth noting that the purpose of deferral is partially defeated if
the matter is not raised until after the pre-hearing conference as in the
instant case.  Thus, even if this case were appropriate for deferral, we
might not have done so.

     Finally, it is necessary to point out that our deferral policy is not a
question of jurisdiction to hear the case as the School Committee has argued.
In contrast,deferral is used where there is jurisdiction which exists simul-
taneously with the possibility of resolution through the utilization of
contractual arbitration procedures.  See, Bangor Education Association v.
Bangor School Committee, MLRB No. 76-11 (1976).


     Turning to the merits, we note first what this case does not involve.
It bears repeating that it does not involve a claim of contract violation.
Thus, in addition to the deferral contention, the School Committee's other
arguments, that it is protected by the contract and by past practice and that
the Association has waived rights to bring this complaint by conceding that
the contract has not been violated, are each also inapt.  Whether or not the
School Committee violated the Agreement in regards to the Athletic Director
changes is simply irrelevant to the case.

     This case also does not involve a unilateral change as mentioned by the
Association in its brief.  As indicated in the findings of fact, the past
practice regarding posting has not been consistent, and therefore it cannot
be said that there has been a clear change in anything.

     This case does involve a claim of breach of bargaining duty by failing
to meet to negotiate two particular subjects within 10 days of a request for
such.  The complaint is very clearly drafted.

     Section 965(1)(B) of the Act requires the public employer and the
bargaining agent:

          "B.  To meet within 10 days after receipt of written notice
               from the other party requesting a meeting for collective
               bargaining purposes, provided the parties have not other-
               wise agreed in a prior contract."

     Such a notice was received.  The only response was a letter indicating
that there would be no negotiations until the next contract.  Thus, not only
was there no meeting, but there was not even an attempt to discuss the request
for a meeting within 10 days.  There are therefore two issues to consider:
(1) whether the duty to meet for collective bargaining purposes continues
during the term of a collective bargaining contract; and (2) whether the two
subjects of impact and posting are mandatory subjects of bargaining.

     The first issue was resolved in Cape Elizabeth Teachers Association v.
Cape Elizabeth School Board, PELRB No. 75-24 (1975) at page 4:

          "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."

See also Sanford Teachers Association v. Sanford School Committee, CA-76-600 
(Kennebec Co. Super. Ct. Nov. 9, 1978).  There was no bargaining history on
these two new subjects; although the contract covers negotiation procedures
for a successor agreement, it is silent in regard to new issues; and there is
no zipper clause.  The conclusion follows that the duty to bargain these two
subjects existed when requested, provided only that the subjects to be
bargained are mandatory subjects of bargaining.

     One of the subjects, the "posting of curricular and extra-curricular job
openings," is clearly a mandatory subject of bargaining in accordance with
Brunswick School Board v. Brunswick Teachers Association, PELRB No. 75-19,
appeal docketed, CV-76-42 (Kennebec Super. Ct. Feb. 12, 1976), at page 6:
"We conclude that the procedure for filling vacant positions is a benefit of
employment and a working condition, and, therefore, a mandatory subject for
collective bargaining."

     The other subjects the "impact of absorbing the duties of Athletic
Director into the position of Department Head Physical Education," is also a
mandatory subject.  In Teamsters Local No. 48 v. City of Augusta, MLRB No.
78-04 (1978), the parties had conceded that subcontracting was a mandatory
subject of bargaining; and the Board found that the subject had been waived
in prior negotiations.  The impact of a subcontracting decision, however, was
held to a mandatory subject of bargaining:

             "[A] public employer is obligated to negotiate on the impact
          or effects of its decisions concerning the terms and conditions
          of employment of the public employees affected. . . .  [We] con-
          clude that the Board of Education refused to bargain over the
          impact of its decision to subcontract the school bus operation
          in violation of 26 M.R.S.A.  964(1)(E)."

City of Augusta, supra, at page 6-7.

     Thus the question of whether "impact" is a mandatory subject of bargain-
ing has already been decided without regard to whether the decision itself is
a matter of educational policy, as in Westbrook Teachers Association v. School
Committee of the City of Westbrook, PELRB No. 74-17 (1974), or is otherwise
not required to be negotiated, as in City of Augusta.

     The fact that the contract is silent on these two subjects is not a
defense to the duty to bargain, but rather reinforces the idea that there has
been no waiver of the right to raise these two subjects.   Moreover, the Board
has frequently held that a waiver must be clear and unambiguous.  See, e.g.,
Caribou Teachers Association v. Caribou School Department, MLRB No. 77-34,
rev'd on other grounds, No. C-78-56 (Aroostook County Super. Ct. Aug. 3,
1978), appeal docketed, No. AR-78-12 (Sup. Jud. Ct. Nov. 1, 1978).

     To sum up, we have concluded that the School Committee received a letter
meeting the standards of 26 M.R.S.A.  965(1)(B), that it did not adequately
respond, that there was a duty to do so during the term of this Agreement, and
that the proposed subjects are mandatory subjects of bargaining.  Thus, the
School Committee


has violated the duty to bargain collectively set forth in 26 M.R.S.A.  964

     It should be clear that a bargaining agent may not use the duty to nego-
tiate the subject of impact on working conditions as a guise for making
demands concerning the propriety of the decision itself.  However, the bar-
gaining agent may have many valid concerns about the effect of such decisions
on the conditions or duties of the employees, as in the instant case.  The
employer should be interested in them.  Since the Act is intended to foster
harmonious relations between public employers and their employees, we think it
would be safer and wiser for a party to meet when requested even if it has
doubts about the duty to meet.  Since a misunderstanding of the law or the
facts of a clear request such as this one[1] will not excuse the duty to meet,
a party should therefore not lightly undertake the decision to refuse to meet
when requested by a 10 day letter.


     In light of the violation found, we will direct that the School Committee
cease and desist from such conduct in the future.  In order to satisfy the
duty to meet with the Association as originally requested, we will also direct
that the School Committee meet with the Association for the purposes indicated
in the Association's letter dated June 16, 1978, within ten days of receipt of
this order unless otherwise agreed by the parties.  It shall be the School
Committee's duty to propose reasonable and appropriate meeting alternatives
to the Association.


     On the basis of the findings of fact and discussion, and pursuant to
 968 of the Municipal Public Employees Labor Relations Act ("Act"), it is

     That Respondent, East Millinocket School Committee, its members, agents,
successors and assigns shall:

     1.  Cease and desist from refusing to bargain collectively with
         the East Millinocket Teachers Association by failing to meet
         within 10 days after receipt of a written notice requesting
         a meeting for collective bargaining purposes where they have
         not otherwise agreed in writing; and

     2.  Take the affirmative action designed to effectuate the policies
         of the Act of meeting with the Association for the purposes in-
         dicated in finding of fact number seven within ten days of re-
         ceipt of this order unless otherwise agreed by the parties.
         The School Committee must propose reasonable and appropriate
         meeting alternatives to the Association.

  1 Such was not alleged in this case.


Dated at Augusta, Maine, this 9th day of April, 1979.

                                       MAINE LABOR RELATIONS BOARD

                                       Donald W. Webber
                                       Alternate Chairman

                                       Paul D. Emery   
                                       Employer Representative

                                       Paul Haney
                                       Alternate Employee Representative