STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 79-32
                        Complainant, )
  v.                                 )              DECISION AND ORDER
S.A.D. #22 BOARD OF  DIRECTORS,      )
                        Respondent.  )

     The S.A.D. #22 Non-Teachers Association (hereafter "Association") filed
this prohibited practice complaint on October 25, 1978.  The S.A.D. #22 Board
of Directors (hereafter "Directors") filed a response.  A pre-hearing
conference was held on December 19, 1978, by Alternate Chairman Donald W.
Webber, who issued a Pre-Hearing Conference memorandum and Order on
December 26, 1978, the contents of which are incorporated herein by reference.

     The matter was heard by the Maine Labor Relations Board (hereafter
"Board") on February 16, 1979, Alternate Chairman Webber presiding, with
Paul D. Emery, Employer Representative, and Paul Haney, Alternate Employee
Representative.  The Association was represented by Stephen P. Sunenblick,
Esq., and the Directors by Hugh G. E. MacMahon, Esq.  The parties filed post-
hearing briefs.


     Jurisdiction of the Board to hear and render a decision in this case lies
 in 26 M.R.S.A.  968(5).

                               FINDINGS OF FACT

          1.  Complainant Association is the recognized bargaining agent
              for a bargaining unit composed of bus drivers, cafeteria
              workers, clerks, custodians, secretaries, nurses, and          
              teacher aides in S.A.D. #22, Hampden. 26 M.R.S.A.  962(2).
              Respondent Board of Directors is a public employer of the
              employees in this unit. 26 M.R.S.A.  962(7).

          2.  The parties have had collective bargaining agreements in
              effect since 1971.  The agreement for the three years
              ending June 30, 1978, contains an article on contingency

                   XIX.  IMPLEMENTATION

                        The implementation of this agreement and
                   the benefits contained therein is dependent upon
                   the amount of the state-local allocation funds
                   and the appropriation of the necessary main-
                   tenance of effort and/or leeway funds by the
                   voters of S.A.D. #22.  In the event that voters
                   do not appropriate the funds required or the
                   amount of the state-local allocation is insuf-
                   ficient to implement this agreement, the Board
                   agrees to reopen negotiations with the Asso-
                   ciation before it, the Board, determines what
                   changes will be made.


              All previous agreements included some kind of implementation

          3.  In initial proposals, the Association proposed that the
              entire implementation article be deleted; the Directors
              proposed that it be retained as it was.  There were a
              number of negotiation sessions.  The parties maintained
              their positions regarding the clause.  Three Association
              negotiation team members testified that the Association's
              claim that the implementation article was a permissive
              subject was discussed a number of times during negotiations.
              Superintendent Skehan testified that this claim was not
              raised until after mediation and prior to the initiation
              of fact finding.

          4.  The Association requested mediation on May 24, 1978, and
              listed the implementation article as an item in dispute.
              In ex parte conferences with the mediator at the July 13
              and 14 mediations, the Association took the position that
              the article was a "permissive" subject of bargaining, that
              they would consider it as part of a total settlement if
              the language were changed to eliminate the possibility of
              unilateral changes, and if there were major inducements to
              the Association in other areas.  There is no evidence that
              the mediator told the Directors that the Association claimed
              that the article was a permissive subject.

          5.  Within a few days after the mediation, Keith Harvie, the
              Association's main spokesman in mediation, informed Assistant
              Superintendent Brooks that the Association was requesting
              fact-finding and was not including the article in its sub-
              mission of issues.  In a letter dated July 19, 1978, Harvie
              then informed the Directors, through Skehan:

                   "As you have been advised by the bargaining
                    team of the Nonteaching Association, your
                    proposal for retention of Article XIX,
                    Implementation, is a permissive subject of
                    bargaining.  The Association no longer wants
                    to burden the negotiations process with non-
                    mandatory items which will be the cause of
                    additional time and expense in the Fact
                    Finding process.  Therefore, on behalf of
                    the Association, I am asking that the Board
                    formally withdraw its proposal on Article
                    XIX prior to Fact Finding.

                    The Association will not include that Article
                    in its list of issues attached to the Fact
                    Finding request."

              Harvie then requested fact-finding in a document dated July 21,
              1978, omitting the article.  The Directors also requested fact-
              finding in a document dated July 31, 1978, which included the

          6.  The Association then demanded, in a letter dated August 16,
              1978, that the Directors remove the article from their request.
              The Association threatened to file a prohibited practice com-
              plaint if the Directors did not do so.  Skehan replied in a
              letter dated August 21, 1978, that "the Board [of Directors]
              has no intention of withdrawing its request for Article XIX
              [implementation] to be included in the fact-finding process."

          7.  A fact-finding panel heard the issues on August 29, 1978.  The
              panel's report indicated that the Association argued that the
              implementation article was a permissive subject and should have
              been withdrawn on demand.  The Board asked that the article be
              retained. The Panel concluded that the article was properly


              before them and that a party had no right to block a panel
              from hearing a permissive subject.  On the merits the panel
              recommended either removing tne article or reworking it so
              that the impact of lack of funding would be less devastating
              to the agreement.

          8.  The Association was willing to accept the recommendations of
              the panel; however, the Directors demanded changes in nine
              areas, including a demand for the implementation article.
              After a package proposal by the Directors including the
              full implementation article, the Association made a package
              counterproposal including a "reworded" implementation article.
              The parties eventually agreed to the following language:

                   "XXI. - IMPLEMENTATION

                         The implementation of this agreement and the
                    benefits contained therein is dependent upon [the
                    amount of the state-local allocaiton funds and] the
                    appropriation of the necessary [maintenance of effort
                    and/or leeway] funds by the voters of SAD #22.  In
                    the event that voters do not appropriate the funds
                    required [or the amount of the state-local allocation
                    is insufficient] to implement this agreement, the
                    Board agrees to reopen negotiations with the Asso-
                    ciation before it, the Board, determines what changes
                    will be made.

                      NOTE:  The inclusion of this Article in the Working
                      Agreement is dependent upon the final decision of
                      the Maine Labor Relations Board concerning the
                      Prohibited Practice Complaint relative to this
                      Article.  If the decision is in favor of the Asso-
                      ciation, this Article will be deleted from this
                      Working Agreement.  If the decision is in favor
                      of the Board, this Article will remain part of
                      this Agreement."

          9.  The Association's share of the fact finders fees totaled
              $635.50.  Approximately ten percent of the time spent in fact
              finding was devoted to the article.  In addition, the Maine
              Teachers Association incurred approximately $50.00 of expenses
              in presenting its position to the fact finders.

         10.  S.A.D. #22 is a quasi-municipal corporation operated by the
              Board of Directors.  The only source of funding for the
              Directors is payments from the towns making up the District.
              The towns are assessed an annual fee representing the town's
              share of the approved, one-year District budget.  Budget
              approval or disapproval takes place at a meeting at which the
              annual budget is voted on by eligible voters who attend the
              meeting.  Only residents of the District are eligible to vote
              at the meeting.  The budget is voted on in a number of different
              Articles, eight of which concern monetary expenditures.  An
              article calling for funding in a recommended amount could be
              reduced at the meeting and then approved by vote in the reduced
              amount.  The Directors would then be forced to live within the
              limits of the reduced budget.

         11.  The current three-year agreement for the 1978-79 through 1980-
              81 school years was executed in November 1978.  Thus the actual
              budget level for the final two years was not yet established
              although the Directors would do everything they could to get
              their recommended budget approved.  The Directors have not had
              a recommended budget reduced through the May 1978 meeting in
              fifteen years although one year the recommended budget passed
              by only nine votes.


         12.  The current agreement has a "reopener" provision for each
              of the two final years of the three-year agreement, the
              1979-80 and 1980-81 school years.  The reopener provides,
              among other possibilities, that:

                   "either party may, by written request to the
                    other party, reopen negotiations on Wages,
                    Blue Cross/Blue Shield Insurance, and on
                    [two or three other articles]."

         13.  Approximately 65 percent of the total budget constitutes
              salaries and benefits for employees.  Thus, Superintendent
              Skehan indicated that significant budget reductions would
              require reductions in force as the practical solution to
              its financial limits and the requirement to live within
              the terms of its contract.  Salaries and benefits of
              employees represented by the Association constitute 10
              to 20 percent of the District's total budget.  Only 8
              percent of the District's budget is not committed by
              contract (assuming constant personnel and program levels).


     The Association urges that the implementation article is not a mandatory
subject of bargaining since it does not concern the relationship between the
employer and the employees but rather relates to third party conduct, in
effect making ultimate approval of an otherwise agreed-upon collective
bargaining agreement subject to approval by voters and not by the public
employer--the Directors.  They urge that insisting on submitting this
permissive issue to fact-finding over their objection is a per se violation
of the duty to bargain in good faith.  The Association seeks reimbursement
for its costs in having to pursue this issue in fact-finding.

     The Directors urge that it is a proper subject for submission to fact-
finding, that it is a mandatory subject, that the Association should be obli-
gated to bargain this subject on policy grounds regardless of whether it is
classified as mandatory or not, that in any event the Association waived its
right to object by its conduct in a number of respects, that in any event it
is not a prohibited practice to insist on a non-mandatory subject if the
parties had treated it as a mandatory subject of bargaining, and finally that
the Association's request for a monetary remedy is a penalty which is beyond
the Board's authority to award.

     We conclude that the implementation clause has two facets--contingent
implementation and subsequent managerial control over all bargaining subjects.
The former is a permissive subject of bargaining and, therefore, by insisting
on this article at impasse, the invocation of fact-finding, the Directors
committed a per se violation of the duty to bargain in 26 M.R.S.A.  964(1)
(E).  The latter facet, control over all bargaining subjects, is so all-
encompassing and totally destructive of the collective bargaining system that
insistence on it also is a per se violation of 26 M.R.S.A.  964(1)(E).  We
also conclude that there was no waiver of the right to object and that an
appropriate remedy would not include the payment of a portion of the Asso-
ciation's fact-finding costs.  Other arguments of the Directors are also

1A.  The contingent implementation facet.

     The first facet of the implementation article is that the collective
bargaining agreement is made contingent upon a future event, that being a
vote by residents of


the District on whether to fund the budget proposed by the Directors.[fn]1

     It is well settled that a party commits a per se violation of the Act by
insisting to impasse on a non-mandatory subject of bargaining.  See NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958); Board of Directors
of M.S.A.D. No. 24 v. Van Buren Custodian Association, MLRB Case No. 79-16
(1979).  Moreover, insistence upon incorporation of a permissive bargaining
subject in the agreement need not be the sole cause for impasse in order to
establish a violation of the duty to bargain.  See Caribou School Department
v. Caribou Teachers Association, MLRB Case No. 76-15 (1977); cf. Teamsters
Local 48 v. Town of Falmouth, MLRB Case Nos. 79-10 & 79-18 (1979) at page 6.

     In addition, we conclude that these parties were at impasse when they
submitted issues to fact-finding.  Since the Directors included the
implementation article over the objection of the Association and refused on
demand to remove it from the fact-finding proceeding, the question is thus
squarely raised as to whether or not the implementation article is a mandatory
subject of bargaining.  If it is mandatory, then the Directors have acted
properly.  If it is permissive, they have violated 26 M.R.S.A.  964(1)(E)
through  965(1)(C).  See Borg-Warner, supra.

     The test for whether this is a mandatory subject of bargaining is whether
it falls within the limitation of "wages, hours, working conditions and
contract grievance arbitration."[fn]2  26 M.R.S.A.  9650)(C).  Since this
section of the Maine Public Employees Labor Relations Act (hereafter "Act")
is nearly identical to the National Labor Relations Act, 29 U.S.C.  151 et
seq., we usually look to established federal precedents for guidance on this
issue.  See Caribou School Department v. Caribou Teachers Association, No.
Ar-79-4 (Me., June 19, 1979).  The leading case in this area is Allied
Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971),
which establishes the general criterion that the subject must "settle an
aspect of the relationship between the employer and employee."  Id. at 179.
We view it as a premise of the very concept of collective bargaining that
working conditions be settled by agreements.

     The contingency implementation facet of this clause, however, cannot be
said to "settle" anything.  Rather, the entire, bargained agreement is nulli-
fied by the eventuality of the contingency.  Thus, the premise of collective
bargaining is absent in this facet of the implementation article.  We there-
fore conclude, in keeping with our duty, power and "special expertise," Id.
at 182, that we must classify this facet of the article as a permissive
subject of bargaining.

     Secondly, we note that the idea of demanding that the Association accede
to having the voters of the District have an input in the ratification of the
entire contract is strongly parallel to the provision classified as permissive
in Borg-Warner, supra, where the demand was for a "ballot" clause calling for
a pre-strike vote of all unit employees as to the employer's last offer.  In
Borg-Warner the

  1 The article as proposed also included an additional contingency, the
action of the Legislature in allocating funds, which was removed from the
final form of the article.  While the decision and rationale apply equally
well to this second contingency, it is not mentioned hereafter since it is
duplicative only.

  2 The educational policy exception of 26 M.R.S.A.  965(1)(C) is not germane
or raised as an issue.


Supreme Court found that the clause dealt with relations between employees
and their unions, not between employees and their employer.  The Court also

          "It substantially modified the collective bargaining system
           provided for in the statute by weakening the independence
           of the 'representative' chosen by the employees."

356 U.S. at 350.

     The contingency implementation clause here has the same effect of
weakening the collective bargaining system both by allowing the public
employer, established by definition in 26 M.R.S.A.  962(7), to avoid its
duty to bargain by shunting a ratification decision to the voters and,
furthermore, thereby denying the employees the power to bargain for their
working conditions with their employer.

     Finally, the conclusion we reach today follows necessarily from the
decision in Maine Teachers Association v. Sanford School Committee, MLRB Case
Nos. 77-18, 19, 20, 29 (1977) where the Board classified as non-mandatory
"the subject of ratification by a body other than the public employer, of an
agreement reached by the representative of the public employer."  Id. at 5.
Power to make agreements resides with the public employer as does the
accompanying duty to bargain and execute agreements reached.  See M.R.S.A. 
965(1)(C) & (D).  The contingency implementation clause thus runs contrary to
the statutory duty to bargain.[fn]3

     The Directors are not handcuffed without such a contract-relief
contingency.  It is within their power, if necessary, to reduce personnel,
cut programs, or seek appropriate contract modifications through the reopening
of negotiations.  This is a not uncommon situation for all employers, public
and private, who encounter income which falls short of expectations.

1B.  Managerial control of bargaining subjects facet.

     If the voters do not "appropriate the funds required," that is, if the
contingency transpires, then the second facet of the implementation article
is enlivened.  This facet has the Board of Directors agreeing to "reopen
negotiations with the Association before it, the Board [of Directors],
determines what changes will be made."  Although the word "negotiations" is
used, the latter part of the phrase clearly indicates final decision by the
Board of Directors alone.  In essence the negotiations are nothing more than
consultation rights and not full collective bargaining rights.[fn]4

     In addition, the power of the Board of Directors to make "changes" is
totally unrestricted.  Thus it is in fact an all-inclusive management rights
provision which sweeps over all subjects of mandatory bargaining.  A much
less sweeping management rights provision was considered in NLRB v. American
National Insurance Co., 343 U.S. 395 (1952).  In American National, the
National Labor Relations Board ("NLRB") had concluded that it in effect was a
refusal to bargain over mandatory subjects and thus a per se violation of the
duty to bargain to propose a clause which reserved sole control over certain
mandatory subjects, including promotions, discipline, and work  scheduling.
The Supreme Court reversed, however, stating:

     3 The fact finders reported that the clause had a "devastating" impact
on harmonious labor relations.

     4 As the fact finders phrased it:  " 'renegotiations' would be a sham."


          "Any fears the [NLRB] may entertain that use of management
           functions clauses will lead to evasion of an employer's
           duty to bargain collectively . . . do not justify con-
           demning all bargaining for management functions clauses
           covering any 'condition of employment' as per se vio-
           lations of the Act."

Id. at 409.

     This implementation article, however, does not simply cover one or a few
subjects of mandatory bargaining.  What is involved here is ultimate manage-
ment control of all subjects.  Moreover, the contingency which would trigger
such power--a decision by tax-paying voters to cut back school taxes--is an
all-too-likely possibility in the current economic climate.[fn]5  Moreover,
the issue of whether or not funds appropriated by the voters are actually
sufficient is left open to interpretation.  Thus, while we agree that a
management rights clause covering only a few mandatory subjects of bargaining
would not be a per se violation but rather only possible evidence of bad
faith, we conclude that a bargaining agent cannot be forced to bargain over a
provision which constitutes a waiver of bargaining rights on all subjects.
Thus, we deem this second facet of the implementation article to be so totally
destructive of the principles of collective bargaining as to be a per se
violation of the duty to bargain of 26 M.R.S.A.  965.

2.  Waiver

     The Directors argue that, even if a permissive subject, the Association
waived its right to object to this article by once agreeing to it in the
previous collective bargaining agreement, by first proposing negotiations
over the subject, by its pre-fact-finding bargaining conduct of not demanding
its removal from the table until the initiation of fact-finding, by listing
it as an issue in dispute in mediation, by discussing it after fact-finding,
and by eventually signing the contract.

     The Directors misconstrue the long-settled concept of a permissive
subject.  "By once bargaining and agreeing on a permissive subject, the
parties, naturally, do not make the subject a mandatory topic of future
bargaining."  Pittsburg Plate Glass, supra, 404 U.S. at 188.  Moreover:

          "No waiver of the right to claim later that a subject is a
           permissive one results from bargaining without reservation
           about the subject.  Either the employer or the union may
           bargain about the topic as if it were a mandatory subject
           without losing its right, at any time before agreement is
           reached, to take an adamant position that the matter shall
           not be included in a contract between the parties.  To sus-
           tain a claim of waiver based upon a course of bargaining
           'would penalize a party to negotiations for endeavoring to
           reach agreement by consenting to bargaining upon issues as
           to which the Act does not require him to bargain.' [Kit Mfg.
           Co., 150 NLRB 662, 671, 58 LRRM 1140 (1965), enforced, 365
           F.2d 829 (9th Cir. 1966)]"

The Developing Labor Law, Section of Labor Relations Law, American Bar
Association, C. Morris (BNA 1971) at page 425.

     Essentially, a permissive subject never changes into a mandatory subject
no matter how lengthy the bargaining.  The court in NLRB v. Davidson, 318
F.2d 550,

     5 The fact finders stated that "the current cost-cutting political
climate plus the language of the article itself creates a situation
potentially destructive of good faith labor relations."


558 (4th Cir. 1963) stated:

          "A determination that a subject which is non-mandatory at
           the outset may become mandatory merely because a party had
           exercised this freedom [to bargain or not to bargain] by
           not rejecting the proposal at once, or sufficiently early,
           might unduly discourage free bargaining on non-mandatory
           matters.  Parties might feel compelled to reject non-
           mandatory proposals out of hand to avoid risking waiver
           of the right to reject."

     Thus the Directors' arguments that there was a waiver by past agreement,
by discussing the article in negotiations and by listing it as an issue in
dispute in its mediation request, are without merit.  Moreover, the argument
that the Association waived its right to object to inclusion of the subject
in fact-finding by first proposing negotiations on the subject is
unpersuasive, "Catch 22" reasoning since the Association's proposal was that
the article be deleted.

     We conclude that the onset of fact-finding is the most desirable point
for a party to make its demands concerning permissive subjects clear, as the
Association did here.  Fact-finding is the usual starting point of impasse
resolution.  That the parties "are unable to effect a settlement" of their
bargaining is in fact the criterion for invocation of this process.
26 M.R.S.A.  965(3)(A).[fn]6

     Indeed, we find here that impasse occurred at the initiation of fact-
finding.  Thus, by forcing the issue to fact-finding, the Directors committed
a violation of their duty to bargain.

     Since the Directors continued to demand the inclusion of the Article in
the agreement after fact-finding, the Association did not waive its right to
object by discussing the matter.  It may have been the only way to achieve an
agreement when it did.  In any event, its right to object was clearly
preserved by signing the final agreement that contained the caveat notation
listed in Finding No. 8.  See Caribou School Department v. Caribou Teachers
Association, supra, at page 6 n.4.

     In light of our conclusions regarding waiver we see no urgency to resolve
the conflict in testimony evident in Finding of Fact No. 3 regarding whether
the Association claimed the article was permissive or non-mandatory during
pre-mediation negotiations.

3.  Other Arguments

     The Directors cite Economy Stores, Inc., 120 NLRB No. 1 (1958) for the
"principle" that an employer does not refuse to bargain in good faith by
insisting on a subject that the parties have treated as a proper subject.
Not only is that not the case here, but also this principle was laid to rest
long ago by the Supreme Court in Borg-Warner, supra, and NLRB v. Katz, 369
U.S. 736 (1962).  See also Pittsburg Plate Glass, supra, 404 U.S. at 188.

     The Directors also argued that since the fact-finding panel found the

     6 It is clearly proper for a party to demand that permissible subjects
be removed at any time prior to fact-finding.  In fact, the issue does not
usually come to a head prior to fact-finding, however, since the parties must
continue to bargain mandatory subjects to impasse.

       Although not before us in this case, we would be inclined to find a
waiver of the right to object if a party submitted or acquiesced in the
submission of a permissive subject to fact-finding or (if it were bypassed)
to interest arbitration.


dispute over the article was properly before it, the Directors did not commit
a prohibited practice by insisting on submitting the article to the fact
finders.  However, the fact finders did not conclude that the subject was a
mandatory subject, and would not bind the Maine Labor Relations Board by its
conclusions even it it did.  We conclude to the contrary of the argument.

     The Directors also cited Easton Teachers Association v. Easton School
Committee, MLRB Case No. 79-14 (1979), for the proposition that regardless
whether a provision is permissive or mandatory, neither party may claim that
the provision automatically terminates with the contract.  The assertion is
incorrect, however.  In Easton, the characterization of two specific
provisions as either permissive or mandatory was not necessary to the result
in that case since the termination of the two provisions constituted a bad
faith violation in light of other conduct, not just by virtue of the fact of
unilateral termination itself as with the ten mandatory subjects.  Easton,
supra, at page 6.


     The Association seeks its consequential costs of participating in fact-
finding with regard to the implementation article.  The Directors argue that
this claim would constitute a penalty which is beyond the power of the Board.

     While we disagree with the characterization of the request as a
"penalty," and although we are holding in favor of the Association, we
conclude that an order directing payment of consequential damages would not
effectuate the policies of the Act.  26 M.R.S.A.  968(5)(C).  This is so
because this appears to be an otherwise isolated transgression, because the
conclusion that it is a permissive subject is a novel and complex one, and
because other remedies, including the agreement between the parties in the
"Note" to Article XXI of the current contract, are adequate in this case.
Thus we direct a simple cease and desist order.


          1.  Respondent S.A.D. #22 Board of Directors, its members,
              agents, successors and assigns shall cease and desist
              from submitting issues which are non-mandatory subjects
              of bargaining to fact-finding when objected to by an
              appropriate bargaining agent.

Dated at Augusta, Maine, this 30th day of July, 1979.

                                       MAINE LABOR RELATIONS BOARD

                                       Donald W. Webber
                                       Alternate Chairman

                                       Paul D. Emery
                                       Employer Representative

                                       Paul Haney
                                       Alternate Employee Representative