STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 81-29
                                                   Issued:  May 22, 1981

                 Complainant  )
           v.                 )                    DECISION AND ORDER
                 Respondent   )

     This is a prohibited practice case, filed pursuant to 26 M.R.S.A.
 968(5)(B) on October 20, 1980 by the Palermo Teachers Association
("Association").  The Association alleges in its Complaint that the Palermo
School Committee ("Committee") violated 26 M.R.S.A.  965(1)(C) when it
unilaterally restructured its Kindergarten, Special Education and Grades 4
and 5 positions with the result that a full-time position was replaced by two
half-time positions, and that it failed to bargain in good faith over contract
provisions proposed by the Association dealing 1) with rights of full-time
unit members in future restructuring of a similar kind and 2) reduction in
force seniority.  The Association alleges by its aforesaid action the
Committee committed a prohibited practice under Section 964(1)(E).  The
Committee filed a Response on November 12, 1980 in which it contended that
the restructuring was an exercise within its management prerogative as
educational policy; that the Association's proposals were barred by the
ground rules agreed to by the parties as a matter of past practice, since the
proposals were not included in the Association's original package of proposals
for a successor agreement; and that the execution of a successor agreement
without reservation by the Association constituted a waiver of its claims
against the Committee.

     A pre-hearing conference was held on December 15, 1980 before Alternate
Chairman Donald W. Webber.  On December 18, 1980 Alternate Chairman Webber
issued a Pre-Hearing Conference Memorandum and Order, the contents of which
are incorporated herein by reference.  Thereafter on December 24, 1980 the
Committee filed a Motion to Dismiss requesting dismissal of the Complaint as
a matter of law.  By letter dated December 31, 1980 the Motion to Dismiss was
denied on the basis that fact issues were involved.


     A hearing was convened for January 28, 1981, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin.  The School Committee was repre-
sented by Ervin D. Snyder, Esq., and the Association by Stuart G. Snyder, Esq.
At the outset of the proceedings counsel for the Committee offered a second
Motion to Dismiss.  In this Motion the Committee argued that in executing a
successor agreement without reserving the issues in controversy, the Associa-
tion waived its claims respecting the proposals and the issues, therefore,
were moot.  The Motions were denied.[fn]1

     Prior to the receipt of testimony the parties requested a recess and
thereafter advised the Board that they had entered into a complete stipulation
on the facts necessary for the Board to determine the issues raised by the
Complaint.  The parties waived an evidenciary hearing and agreed to submit
the matter for decision on the stipulated facts, the pleadings and briefs.
The Board thereupon assigned a briefing schedule and both parties filed
original and reply briefs in a timely manner.


     The 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 employed by the Palermo 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

     1.  The Association represents the classroom teachers in Palermo, which
consisted of six full-time teachers during the 1979-80 school year.  During
that year teacher Bond taught grades 4 and 5 one-half day and Special Educa-
tion one-half day; she was certified for K-8 and Special Ed.  Teacher
Pietroski taught grades 4 and 5 one-half day and Kindergarten one-half day;
Pietroski was certified for K-8.

     2.  A collective bargaining agreement was in effect for the 1979-80
school year, which had a termination date of August 31, 1980.  Negotiations
for a new agreement began in January, 1980 with the exchange of proposals.
Neither the 1979-80 agreement nor the proposals contained any provision which
might reasonably be interpreted as requiring maintainance of positions in the
unit or the level of

1.  The Board ruled that the Motions raised evidenciary questions and that it
    would consider the Motions anew once the matter was heard.


the work force.

     3.  The 1979-80 agreement contained a "just clause" provision providing
in part, "No teachers shall be dismissed or otherwise be deprived of an
employment advantage without just and sufficient cause . . . .   A probation-
ary teacher whose contract is not renewed shall be entitled to a written
notice of the job-related reasons for non-renewal, shall be given the right
to a hearing, and shall be entitled to a finding of just cause prior to non-
renewal."  Pietroski was a second year teacher in the 1979-80 school year.
Nothing in the record indicates that Pietroski ever sought, or had, any
proceedings pursuant to these clauses, or otherwise.

     The 1980-81 agreement provides that probationary teachers "shall be given
the right to a hearing with the superintendent."

     4.  On February 25, 1980 the School Committee took certain action
concerning the contract of Pietroski.  The nature of the action is undis-

     5.  At a board meeting on April 21, 1980 the School Committee decreased
the number of full-time positions from six to five and created two half-time
positions.  The primary intention of this change allegedly was to improve the
quality of Special Education instruction and to have the fourth and fifth
grades taught by the same teacher throughout the day.  The half-time positions
created were Special Education and Kindergarten.

     6.  By letter dated May 5, 1980 the Association protested the "Decrease
in Staff" stating, in part, "Please take notice that the Association requests
negotiations with respect to decrease in staff under topic headings of sub-
contracting and seniority."

     No "subcontracting" or "seniority" provision existed in the 1979-80
agreement, nor were such provisions contained in earlier proposals of the

     At a negotiating session on May 14, 1980 the Association proposed the
following for inclusion in a successor agreement:

          A full-time teacher may not be replaced by two part-time
          teachers when two (2) part-time positions may be filled
          by a full-time unit member.

          When a reduction in the number of teachers is necessary,
          teacher contracts shall be terminated in accordance with
          the principle of seniority.

     At that and subsequent meetings the Committee refused to negotiate with


respect to these proposals on the ground that they were not included in the
initial proposals submitted by the Association and that the past practice
barred the submission of additional proposals thereafter.

     7. At a meeting with the School Committee on May 29, 1980 at which
Ms. Bond, Ms. Pietroski and the Superintendent were present, Pietroski's job
situation was discussed.  The Superintendent informed Pietroski she would fill
a half-time position for the school year 1980-81.  Pietroski stated that she
wanted a full-time position and would take legal action otherwise.
A committee member said that, if successful, she would be back with no hard

     8.  By letter dated May 30, 1980 the School Committee rescinded its
action of February 25 regarding Pietroski's contract and offered her a half-
time Kindergarten position for the following school year.  A contract to that
effect was later forwarded to her for her signature.  The contract was signed
by the Superintendent on July 14, 1980, but the date when Pietroski received
the contract is undisclosed.  She was required to return it by July 25, 1980.

     9.  By letter dated July 27, 1980 Pietroski submitted her resignation
"because of personal financial hardship," stating "my obligations as a teacher
. . . as outlined in the teaching contract of 1979-80 will end on July 31st,
198O."  She reserved her "right to challenge the elimination of my full-time
position."  It is admitted by the Respondent that her resignation was
"effective August 31, 1980 as a half-time teacher in the Palermo school system
in accordance with her individual contract."  [Emphasis supplied].

    10.  The school year for teacher contract purposes is from September 1 to
August 31.

    11.  Pietroski on or about August 18, 1980 discovered there was a full-
time position open for which she was fully certified and qualified.  On or
about that date she met with the new Superintendent and claimed the full-time
position.  She applied for the position and the Superintendent agreed to
inform the School Committee of her claim.  The Superintendent did not nominate
her for the position and she did not get it.

    12.  Effective with the beginning of the 1980-81 school year the School
Committee hired a new employee to teach the one-half day of Special Education
previously taught by Bond and assigned Bond to teach grades 4 and 5 on a full-
day basis.  Presumably


a part-time teacher was engaged to teach Kindergarten one-half day.  There
were 7 teachers in the employ of the Palermo School Committee at the beginning
of the 1980-81 school year teaching the subject matter which in the 1979-80
year required six teachers.

    13.  The prohibited practice Complaint was filed with the Board on
October 20, 1980.  The collective bargaining agreement for the school year
1980-81 was concluded prior thereto.


     In its essentials the Complaint alleges that prohibited practices were
committed when the Committee unilaterally terminated a "unit member's full-
time teaching position and her employment" and refused to bargain over the
proposals submitted by the Association at the May 14 meeting between the
parties.  The relief requested is the reinstatement of teacher Pietroski to
the full-time position held by her during the 1979-80 school year and appro-
priate cease and desist orders relative to the perceived obligation to
bargain in good faith.

     1.  May 14 proposals

     We find that the Committee did in fact have an obligation to bargain over
the May 14 proposals.  Contrary to its contention, each of the proposals
contained matter which are mandatory subjects of collective bargaining.  The
first paragraph would merely require that an available full-time teacher not
be supplanted by two part-time teachers.  Had such a provision been in place
in the 1979-80 agreement, it is possible Pietroski may have benefited.  The
provision would not impinge on the Committee's right to select teachers, to
establish curriculum or arrange the courses of study but rather would protect
against the restructuring of full-time positions and the hiring of part-time
instructors to teach the same subject matter which the full-time person
formerly taught.[fn]2  The potential evil in such action by a school board is
self evident.  The second paragraph of the May 14 proposal is a straight
reduction-in-force seniority provision and clearly a mandatory subject for

2.  A contract provision pursuant to which a school board agrees to prefer
    potentially less qualified teachers within the system conflicts with the
    statutory hiring responsibilities residing in the board.  See Board of
    Directors, M.S.A.D. No. 36 v. M.S.A.D. No. 36 Teachers Association,
    Dec. No. 2563 (Me. S.J.C., decided Apr. 16, 1981).



     We conclude therefore that the Committee had an obligation under Section
965(1)(C) of the Act to bargain concerning the May 14 proposals.  However,
because of our disposition of the case - see discussion infra - we make no
finding regarding violation of the Act.

     2.  Unilateral Restructuring of Full-time Positions

     It is clear from the stipulated record that Pietroski, certified in K-8,
was qualified for the newly created full-time position teaching grades 4 and
5, which previously she had shared one-half day each with Bond.  Another
teacher - or Bond - could have been assigned to the one-half day Kindergarten
and one-half day Special Education positions.  The Committee chose not to make
the assignments in this manner, but rather to offer Pietroski a half-day
position for the 1980-81 school year.  This may or may not be an arbitral
issue under the collective bargaining provisions in force between the
parties,[fn]4 but whether or not the contract provisions were violated, or
whether Pietroski was unfairly denied renewal of her teaching contract, is not
the issue presented by the limited record before us.  This Board is not an
arbitration forum.  The sole question presented for our proper determination
is whether the unilateral restructuring of Grades 4 and 5, Kindergarten and
Special Education in anticipation of the 1980-81 school year was within the

3.  See Brunswick School Board v. Brunswick Teachers Assoc., P.E.L.R.B. No.
    75-19 (1976, appeal docketed, No. CV 76-42 (Kennebec Cty. Sup. Ct.
    Feb. 12, 1976).

4.  The 1979-80 agreement contained a "just cause" provision providing:

          No teacher shall be disciplined, suspended, demoted, dismissed
          or suffer the nonrenewal of a continuing contract without suf-
          ficient prior written warning, reasonable opportunity to improve,
          and a hearing before the Board, if requested, by the teacher.

          No teacher shall be dismissed or otherwise be deprived of an
          employment advantage without just and sufficient cause.

          No teacher shall be transferred involuntarily without reason.
          A probationary teacher whose contract is not renewed shall be
          entitled to written notice of the job-related reasons for the
          nonrenewal, shall be given the right to a hearing, and shall
          be entitled to a finding of just cause prior to nonrenewal.


policy prerogative of the Committee.[fn]5  We conclude that it was.  Fairness
or contract propriety is not for us to decide; prerogative is.  The action of
the Committee, since it did not affect the terms and conditions of employment
under the existing agreement and was prospective only, was a proper exercise
by the Committee of its educational policy discretion.[fn]6  It may have had
unfortunate consequences for Pietroski who by all appearances attempted to
protect whatever legal claims she believed she had, but the consequences for
her cannot be confused with the question of statutory bargaining obligations
resting on the Committee.  The cases on unilateral action cited by the Asso-
ciation are inapposite.[fn]7

     3.  Waiver/Mootness

     The relevant sequence of events regarding the May 14 proposals are the

          April 21         -  action by the Committee.
          May 5            -  letter of protest by the Association.
          May 14           -  proposals offered by the Association
                              at a negotiations session.
          May 14  & June 3 -  Committee refused to negotiate
                              concerning the proposals.
                           -  Collective bargaining agreement or 1980-
                              81 school year executed by the parties.[fn]8
          October 20       -  Prohibited Practice Complaint filed by

5.  Whether the Committee had the obligation to "meet and discuss" with the
    Association prior to implementation of its decision, has not been raised
    in this proceeding.  Nor has the "impact" of the Committee's action.
    "Impact" clearly is a proper subject for collective bargaining in appro-
    priate circumstances.  See Cape Elizabeth Teachers Assn. v. Cape Elizabeth
    School Board, et al., M.P.E.L.R.B. Case No. 75-24 (Oct. 16, 1975).

6.  If a matter is "educational policy" it cannot be condemned as improper
    unilateral action.  We do not conjecture however what the result might
    have been, had the restructuring implementation taken place during the
    existing school year.  Where a public employer implements changes in
    working conditions once impasse in negotiations has been reached, the
    changes must be consistent with its bargaining position.  See Teamsters
    Local Union No. 48 v. Livermore Falls, M.L.R.B. Case No. 80-22 (Aug. 1,

    There is no allegation in this case that the Committee was motivated by
    anti-union animus.

7.  The State Employees Labor Relations Act, 26 M.R.S.A.  979, et seq., does
    not contain a provision similar to the "educational policy" provision of
    the municipal employee law, nor in the municipal sector is that provision
    applicable to other municipal employees.  Lake Teachers Assn. v. Mount
    Vernon School Comm., M.L.R.B. Case No. 78-15 (1978) cited in the Associa-
    tion brief deals with "wages, hours and working conditions," not a subject
    matter found to be "educational policy."

8.  The stipulated facts do not refer to the date of execution.  Committee
    documents indicate the date was July 3, 1980.


     Nothing in the record presented to us provides any indication - one way
or the other - whether the May 14 proposals were dealt with in any manner
whatever subsequent to June 3, 1980.  The record lacks any indication whether
the Association attempted in any manner to preserve the issue of the May 14
proposals beyond the execution date of the successor agreement or indeed
whether the issue was otherwise preserved.

     It is true that waiver must be clear and unequivocal.  Mootness normally
is not found unless the reviewing agency is satisfied that the successor
agreement fully cures the unfair labor practice, is consistent with the
policies of the collective bargaining law, and where the record of the
controversy shows that there is minimal likelihood for recurrences of the
illegal conduct.[fn]9  The meager record in this case is no help in resolving
either proposition.  However, given the sequence of events as described above
and a void in the record on the question of waiver, we believe the complaining
party has the duty of coming forward with some testimony - however limited -
to fill the void and provide some enlightenment on the issue of waiver and a
basis for going forward with the inquiry.  Otherwise, we are acting in a
vacuum.  To hold differently would invite the sub rosa harboring of issues and
withholding them from the collective bargaining process as it may suit the 
purposes of the party.  That is a practice we cannot encourage.  We will
therefore dismiss the Complaint.

     The subject matter of the May 14 proposals has not been lost to the
Association.  They may raise the propositions in future negotiations with the
Committee.  The Committee now knows that the items are mandatory subjects of
bargaining and it is incumbent upon it to treat them as such.  The obligation
to negotiate in good faith is a serious one.

     Since we have found that the Complaint does not present claims which
would permit us to consider the rightfulness or wrongfulness of the
Committee's action

9.  It is important to keep in mind that we are here concerned with waiver of
    the May 14 proposals.  Those proposals are distinctive from the claim of
    unlawfulness of the Committee's "unilateral" action or Ms. Pietroskils
    attempt to preserve her claim to a full-time position.

    It is well settled that the reaching of an agreement will not moot a
    pending charge of a failure to bargain.  M.S.A.D. No. 43 Bd. of Directors
    v. M.S.A.D. No. 43 Teachers Assn., M.L.R.B. Case No. 79-36, et al.,
    (Aug. 24, 1979); Galloway Bd. of Ed. v. Galloway Educ. Assn., N.J. Sup.
    Ct., 393 A2 218, l00 LRRM 2250 (1978).  Of course, in the instant case no
    charge was pending before this agency.


vis-a-vis Ms. Pietroski, we do not have to concern ourselves with assuring
against the recurrence of conduct in terms of its effect on the contract
rights of individuals in the bargaining unit.

     In the circumstances, we will dismiss the Complaint in its entirety.

Dated at Augusta, Maine, this 22d day of May, 19810
                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Don R. Ziegenbein
                                       Employer Representative

                                       Harold S. Noddin
                                       Alternate Employee Representative

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