STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 80-55
                                                   Issued:  February 27, 1981

              Complainant,      )
     v.                         )                       DECISION AND ORDER
              Respondent        )

     This is a prohibited practices case, filed pursuant to 26 M.R.S.A.  968
(5)(B) on June 16, 1980 by the Woolwich School Committee (School Committee).
The School Committee alleges in its complaint that the Woolwich Teachers
Association (Association) violated 26 M.R.S.A.  964(2)(B) by 1) insisting to
impasse that the School Committee negotiate about the issue of fair dismissal
of probationary teachers, and 2) requesting mediation in violation of the
parties' groundrules for negotiations.  The Association filed an answer on
July 2, 1980, denying that its actions had violated Section 964(2)(B), and
alleging that the School Committee had violated 26 M.R.S.A.  964(1)(E) by
refusing to participate in mediation.  The School Committee filed an answer
to the Association's counterclaim on July 14, 1980.

     A pre-hearing conference on the case was held on July 21, 1980, Alternate
Chairman Donald W. Webber presiding.  Alternate Chairman Webber issued on
July 23, 1980 a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.

     A hearing on the case was held on August 6, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Wallace J. Legge.  The School Committee was represented by
Ervin D. Snyder, Esq., and the Teachers Association by Stuart G. Snyder, Esq.
At the hearing the parties stipulated certain facts, and agreed to file briefs
arguing stipulated legal issues.  Both parties filed briefs, which have been
considered by the Board.



     The School Committee is a "public employer" as defined in 26 M.R.S.A.
 962(7).  The Association is the sole and exclusive bargaining agent for a
bargaining unit of classroom teachers and aides employed by the School
Committee.  The jurisdiction of the Maine Labor Relations Board to hear this
case and render a decision lies in 26 M.R.S.A.  968(5).

                               FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1)  In November, 1979, the School Committee and the Association commenced
negotiations for a collective bargaining agreement to succeed an agreement
with a term of September 1, 1978 to August 31, 1980.  Both parties agreed upon
a list of groundrules for governing the conduct of negotiations.  Paragraph D
of these groundrules provides:  "In case an impasse is reached provision for
mediation, fact finding, and arbitration shall be followed as prescribed in
State Law Title 26 Section 965."  This groundrule has been used by the parties
during their negotiations since the 1975-'76 negotiations.

     2)  Among the Association's proposals for negotiations was that the "fair
dismissal" provision for probationary teachers in the then-current agreement
be included in the successor agreement.  That provision provides:

          "No probationary teacher shall suffer discipline, reduction
           in compensation, non-renewal of contract, or dismissal with-
           out reason, an evaluation, and an opportunity to improve and,
           if requested, a hearing before the school committee.  This
           sub-paragraph shall not be subject to the grievance procedure."

The School Committee demanded that this proposal be removed from the bargain-
ing table on the ground that it is not a mandatory subject of bargaining.
The Association declined to remove the proposal from negotiations.

     3)  The School Committee proposed a contract of three years' duration,
while the Association proposed a one-year agreement.  The parties bargained
over the issue of duration of the agreement on several occasions.  The School


proposal also contained a salary scale for each of the 3 years.  After several
rounds of negotiations on the salary issue, the School Committee proposed that
a salary reopener clause for the second and third years of the contract be in-
cluded in the agreement.

     4)  By June 2, 1980, the Association believed in good faith that settle-
ment of a successor agreement could not be reached without outside assistance.
The School Committee believed in good faith that the probationary teacher
issue was not negotiable, that no settlement could be reached on the proba-
tionary teacher issue, and that, if negotiations continued, agreement could
be reached on the duration of contract and salary reopener issues.

     5)  On June 4, 1980, the Association asked the Board's Executive Director
to assign a mediator to the negotiations.  The Association's request for
mediation listed 3 issues in dispute:  duration of contract, number of
reopeners, and fair discipline and dismissal of probationary teachers.

     6)  A mediator was assigned to the case, but, for approximately 6 weeks,
the School Committee refused to meet for mediation on the ground that Para-
graph D of the groundrules precluded the Association's request for mediation.
However, on July 14, 1980, the parties met with the mediator and reached
agreement on the duration of contract and number of reopener issues.


     The parties stipulate that this case raises the following legal issues:

     1.  Is the "fair discipline of probationary teachers" proposal a manda-
tory subject of bargaining?

     2.  Did the Association's request for mediation violate Paragraph D of
the groundrules?

     3.  Was the School Committee justified in refusing to meet for mediation?

     We find that both parties committed prohibited practices, and order
remedies necessary to effectuate the policies of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A.  961, et seq. (Act).


     1.  The probationary teachers proposal.  The "fair dismissal" proposal is
a nonmandatory subject of bargaining, and the Association's insistence that
the proposal be bargained violated Section 964(2)(B).  We reach our conclusion
renarding the negotiability of the proposal by examining pertinent case law
and statutory provisions.  In Superintending School Committee of Winslow v.
Winslow Education Association, 363 A.2d 229, 234 (Me. 1976), the Court upheld
a Superior Court decision that 20 M.R.S.A.  161(5) and 473(4) granted school
committees "exclusive" discretion regarding dismissal or nonrenewal of
teachers.  In response to the Superior Court decision, the Legislature amended
Section 161(5) to read:

          "Just cause for dismissal or nonrenewal may be a negotiable
           item in accordance with the procedure set forth in Title 26,
           c. 9-A, for teachers who have served beyond the probationary
           period.  After a probationary period of 2 years, any teacher
           who receives notice in accordance with this section that his
           contract is not going to be renewed, may during the 15 days
           following such notification request a hearing with the school
           committee or governing board.  He may request reasons."

     The amendment of Section 161(5) thus empowered school committees to nego-
tiate "fair dismissal" or "just cause" for non-probationary teachers, leaving
bv express reference the question whether this issue is a mandatory or
permissive subject of bargaining to determination under Title 26.[fn]1
Conspicuous by its absence, however, is any reference to probationary
teachers.  In light of the controversy generated by the Winslow Superior
Court decision and the legislative debate underlying the amendment, the
Legislature's failure to include probationary teachers in the amendment to
Section 161(5) was not mere oversight.  The Legislature must have intended to
leave the exclusive discretion to dismiss or nonrenew probationary teachers
with the school committees.  See Cape Elizabeth School Board v. Cape Elizabeth
Teachers Association, No. CV-76-16 (Cumberland Cty.  Super.  Ct. 1977).

     The Association's "fair dismissal" proposal plainly would far encroach
upon this exclusive discretion.  The requirement that a probationary teacher
be given

1.  Since "just cause" for discipline or dismissal of non-probationary
    teachers involves "working conditions" within the meaning of 26 M.R.S.A
     965(l)(C), the issue is a mandatory subject of bargaining.  MSAD No. 43
    Board of Directors v. MSAD No. 43 Teachers Association, MLRB Nos. 79-36,
    et al., (Aug. 24, 1979).


a reason, an evaluation, an opportunity to improve and a hearing before being
dismissed or nonrenewed obviously would reduce most of a school committee's
discretion in this area.  The fact that the words "just cause" are not
contained in proposal does not mean that Section 161(5) or the Winslow
decision are inapposite; the substantive and procedural safeguards required
by the proposal are tantamount to saying that a probationary teacher can be
dismissed or nonrenewed only for "just cause."  Similarly, the fact that the
provision would not be subject to the contract grievance procedure does not
insulate the proposal from a charge that it is a nonmandatory subject of
bargaining.  There are other ways besides the grievance procedure in which
the provision might be enforced, such as a prohibited practices complaint
filed pursuant to 26 M.R.S.A.  968(5).  Moreover, the negotiability of a
proposal is not dependent on whether the proposal would be subject to a
grievance procedure.

     The Association's argument that the "fair dismissal" proposal is prima
facie eligible for collective bargaining under City of Biddeford v. Biddeford
Teachers Association, 304 A.2d 387 (Me. 1973) is misplaced because it over-
looks the fact that the negotiability of the proposal is limited by the
Winslow decision and Section 161(5).  Undoubtedly, "fair dismissal" of proba-
tionary teachers is integrally related to "working conditions," about which
the School Committee is obligated by 26 M.R.S.A.  965(1)(C) to negotiate,
just as "just cause" is integrally related to nonprobationary teachers'
working conditions.  Similarly, such issues as class size, the length of a
teacher's working day, and the length of the school year are all integrally
related to working conditions, yet these issues are not mandatory subjects of
bargaining.  City of Biddeford, supra at 420-421.  In short, the Teachers
Association's argument fails to recognize that the proposal's prima facie
eligibility for mandatory bargaining is over-ridden by the fact that the
School Committee has complete discretion over the matter proposed to be bar-

     We have no difficulty concluding that the Association insisted to impasse
that its "fair dismissal" proposal be negotiated.  The Association stipulated
at the pre-hearing conference that it "declined to remove" the proposal from
negotiations for approximately 6 months despite School Committee demands that
the proposal be removed because it was not a mandatory subject of bargaining.
By declining to remove the proposal, the teachers were insisting that the
proposal be negotiated.


The Teachers Association showed its intention to continue to insist that the
proposal be negotiated when it included the issue in its June 4, 1980 request
for mediation.  Since the Teachers Association declined to remove the proposal
and the School Committee lawfully refused to bargain about the proposal, it is
clear that the parties were at deadlock over the proposal.

     Insistence on bargaining a nonmandatory subject violates the duty to bar-
gain because "such conduct is, in substance, a refusal to bargain about the
subjects that are within the scope of mandatory bargaining."  NLRB v. Wooster
Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958); see also MSAD No. 43
Teachers Association v. MSAD No. 43 Board of Directors, No. CV 79-541 at 5-6
(Kennebec Cty. Super. Ct. July 8, 1980).  The Teachers Association committed
a per se violation of 26 M.R.S.A.  964(2)(B) by insisting to impasse that
the nonmandatory fair dismissal proposal be negotiated.  We will order the
Association to cease and desist from insisting that the School Committee
negotiate about proposals relating to fair dismissal or nonrenewal of
probationary teachers.

     2.  The request for mediation.  The Association did not breach Paragraph
D of the groundrules by requesting mediation on June 4, 1980.  The School
Committee's belief that "impasse" within the meaning of Paragraph D had not
been reached is erroneous.  The parties had negotiated for some time about
the 3 issues submitted to mediation (duration of contract, number of salary
reopeners, and fair dismissal of probationary teachers), and the Association
believed in good faith that settlement could not be reached without outside
assistance.  The type of "impasse" contemplated by Paragraph D thus clearly
was present, and the Association's request for mediation is consistent with
the groundrule.[fn]2  The School Committee's allegation that the request for
mediation breached the groundrules and violated Section 964(2)(B) is hereby

2.  The request also was consistent with 26 M.R.S.A.  965(2), which permits
    a party to request mediation any time prior to arbitration, regardless
    whether an impasse in negotiations has occurred.  Since the parties were
    at impasse as contemplated by Paragraph D, we need not decide whether the
    Paragraph, which purportedly limits the times when a party could request
    mediation, is void as contrary to the public policy expressed in Section
    965(2).  See, e.g., Churchill v. SAD #49 Teachers Association, 380 A.2d
    186, 193 (Me. 1977).


     3.  The refusal to participate in mediation.  The School Committee's
refusal to mediate between June 4 and July 14, 1980 is a per se violation of
Section 964(1)(E).  Section 965(1)(E) requires a party to participate in good
faith in the mediation procedures required by Section 965(2), which provides
in subsection (B) that "Mediation procedures shall be followed . . . whenever
requested by either party prior to arbitration."  We have said a number of
times that a party acts at its peril by refusing to participate in mediation
or in the other dispute resolution procedures provided by Section 965.
See, e.g., MSAD No. 68 Teachers Association v. MSAD No. 68 Board of Directors,
MLRB No. 79-22 (Jan. 24, 1979).

     There is no justification for the School Committee's refusal to mediate.
The fact that the request for mediation included one nonmandatory subject
hardly excused the School Committee from its statutory obligation.  The School
Committee could have maintained its position regarding the nonmandatory
subject and worked with the mediator on the two mandatory subjects of bargain-
ing (duration of contract and number of reopeners) included in the request,
which is exactly what the School Committee eventually did in July.  Even if
the request for mediation included only nonmandatory subjects, or if it was
in violation of the groundrules, the School Committee could not lawfully
refuse to participate in mediation.  The proper procedure would be for the
School Committee to maintain its positions during mediation, and file a
complaint alleging that the Association was in violation of Section 964(2)(B).
Self-help remedies such as refusing to participate in mediation are not among
the options provided by the Act.

     The School Committee's argument that its prohibited practice is mooted by
the fact that it did eventually participate in mediation is erroneous for the
reasons stated in Teamsters Local 48 v. City of Bangor, MLRB No. 79-29
(March 2, 1979).  We will order that the School Committee cease and desist
from refusing to participate in the mediation procedures required by 26
M.R.S.A.  965(2).    


     On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the


provisions of 26 M.R.S.A.  968(5), it is hereby ORDERED:

     1.  That the Woolwich Teachers Association, and its agents, members
         and bargaining agents, cease and desist from insisting to im-
         passe that the Woolwich School Committee bargain about proposals
         relating to fair dismissal or nonrenewal of contract for proba-
         tionary teachers.

     2.  That the Woolwich School Committee, and its representatives and
         agents, cease and desist from refusing to participate with the
         Woolwich Teachers Association in mediation as required by 26
         M.R.S.A.  965(2).

Dated at Augusta, Maine this 27th day of February, 1981.

                                       MAINE LABOR RELATIONS BOAR

                                       Edward H. Keith

                                       Don R. Ziegenbein
                                       Employer Representative

                                       Wallace J. Legge
                                       Employee Representative

     The parties are advised of their right pursuant to 26 M.R.S.A.  968(5)
(F) to seek a review by the Superior Court of this decision and order by
filing a complaint in accordance with Rule 80-B of the Rules of Civil
Procedure within 15 days after receipt of the decision and order.