MSAD #45 v. MSAD #45 Teachers Assoc., No. 82-10, Interim Findings 
and Order (Jan. 12, 1982), enf'd, CV-82-34, Board Decision and Order 
(Sept. 17, 1982)


STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 82-10
                                                   Issued:  January 12, 1982

___________________________________
                                    )
M.S.A.D. #45,                       )
                                    )
               Complainant,         )
                                    )
           v.                       )             INTERIM FINDINGS AND ORDER
                                    )
M.S.A.D. #45 TEACHERS ASSOCIATION,  )
                                    )
               Respondent.          )
____________________________________)


     The following unanimous oral order was directed by the members of the
Maine Labor Relations Board meeting in Bangor on January 8, 1982 in the
presence of the parties:

     "CHAIRMAN THORNE: The Board members have met in an executive
      session for the purposes of deliberation, and at this point
      it is the unanimous decision of the Board that the following
      findings and order be entered in this case:

           First, based on the evidence that's been presented before
      the Board, we find that the action taken by the principal at
      the school of the union's president in not allowing him to
      receive messages regarding Association activities was done in
      retaliation because of his position as president of the Asso-
      ciation, was done with the intent and purpose and effect of
      interfering with the Association's legitimate activities, and
      was a unilateral change in a past practice, and that those acts
      constitute a violation of Section 964(1)(A) and (B).  We are
      ordering that the plaintiffs in this case, the MSAD No. 45,
      cease and desist from this activity immediately, return to the
      policy which was in effect prior to the letter from the prin-
      cipal to the president of the Association, meaning that messages
      be taken as was the past practice, and be put in his message
      box as is done for other teachers, and, I take it, even to
      this teacher as regards other matters.  And that this order
      also applies to any other teachers who are receiving messages
      relating to Association activities since the Board finds, based
      on the testimony presented, that there has also been instituted
      a policy not to take messages regarding Association activities
      for other teachers where the secretary can discern that.  We
      find that also to be a violation of Section 964(1)(A) and (B)
      as retaliatory against those Association members, interfering
      with legitimate union activities, and also a unilateral change

                                      -1-


      of past practice.  And we are ordering a cease and desist and
      a return to the previous policy as regards those other teachers
      as well.

           We also find that, based on the testimony presented to us,
      that MSAD 45 has required bargaining unit members who were asked
      to appear by the Association before this body as witnesses to
      have been served subpoenas, and that where there was no leave
      time available under the contract those witnesses were docked
      pay.  We find that that requirement constitutes a violation of
      964(1)(A), (B) and (D), in that it constitutes an interference
      with the Association's members to appear as witnesses for legi-
      timate Association purposes.  We limit the ruling by finding,
      based on the facts presented, that the witnesses who did appear
      and were required to appear under subpoena were necessary wit-
      nesses and were properly asked to be present by the Association.
      We're ordering that MSAD No. 45 cease and desist from this
      activity as regards this hearing or the appearance of bargaining
      unit members before this Board in other cases, and that those
      persons who appeared as witnesses who were docked pay be made
      whole by being given appropriate pay for the days in which they
      appeared before this Board.

           We make these findings of fact and orders because we believe
      it is essential that it be done at this point in time, and we'll
      have the findings and order made part of the written decision
      which will be rendered by this Board on this entire case after
      the memorandums have been filed by the parties.

           That's the conclusion of the findings and order."


Dated at Augusta, Maine this l2th day of January, 1982.

                                       MAINE LABOR RELATIONS BOARD



                                       /s/______________________________
                                       Gary F. Thorne
                                       Alternate Chairman



                                       /s/______________________________
                                       Don R. Ziegenbein
                                       Employer Representative



                                       /s/______________________________
                                       Russell A. Webb
                                       Alternate Employee Representative


                                      -2-



STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 82-10
                                                   Issued:  September 17, 1982

______________________________
                              )
MAINE SCHOOL ADMINISTRATIVE   )
DISTRICT NO. 45,              )
                              )
               Complainant,   )
                              )
  v.                          )
                              )                    DECISION AND ORDER
MAINE SCHOOL ADMINISTRATIVE   )
DISTRICT NO. 45 TEACHERS      )
ASSOCIATION,                  )
                              )
               Respondent.    )
______________________________)


     This is a prohibited practices case, initiated on September 14, 1981 when
Maine School Administrative District No. 45 (District) filed a complaint
pursuant to 26 M.R.S.A. Section 968(5)(B), alleging that the Maine School
Administrative District No. 45 Teachers Association (Association) violated 26
M.R.S.A. Section 964(2)(A) and (B) by attempting to force the District to
bargain about the District's hiring of a guidance counselor.  The Association
filed an answer to the complaint on October 5, 1981, denying that its actions
constituted a violation of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. Section 961, et seq. (Act).  On November 23, 1981, the Association
filed a counter-complaint against the District, alleging, among other things,
that the District violated 26 M.R.S.A. Section 964(1)(A) and (E) by refusing
to provide pertinent information to the Association, by negotiating directly
with a bargaining unit member, by engaging in surveillance of Association
members, and by refusing to meet and consult with regard to educational policy
matters.

     Pre-hearing conferences on the case were held on October 14, 1981 and
December 15, 1981, Alternate Chairman Gary F. Thorne and Chairman Edward H.
Keith, respectively, presiding.  Pre-hearing memoranda and orders were issued
on October 15th and on December 15th, and the contents of these documents are
incorporated herein by reference.  The District orally denied the allegations
contained in the Association's counterclaim at the December 15th pre-hearing
conference.

                                      -1-


     Hearings on the matter were held on December 21, 1981 and on January 8,
1982, Alternate Chairman Thorne presiding, with Employer Representative Don R.
Ziegenbein and Alternate Employee Representative Russell A. Webb.  The
District was represented by F. Paul Frinsko, Esq., and the Association by
UniServ Director Harold B. Dickinson.  The parties were given full opportunity
to examine and cross-examine witnesses, introduce evidence, and make argument.
Both parties filed post-hearing briefs, which have been considered by the
Board.  On January 12, 1982 the Board issued interim findings and an order,
concluding that the District had engaged in violations of Section 964(1)(A),
(B) and (D) and ordering appropriate remedies.  The Kennebec County Superior
Court enforced the findings and order on June 9, 1982 in Docket Nos. CV 82-34,
et al. and the findings and order are hereby incorporated herein by reference.


                                  JURISDICTION

     The District is a public employer within the meaning of Section 968(5)(B)
of the Act.  The Association is the bargaining agent for a bargaining unit of
full-time certified teachers employed by the District.  The jurisdiction of
the Maine Labor Relations Board to hear this case and render a decision and
order lies in Section 968(5).


                                 FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1.  On April 7, 1981, Superintendent of Schools Carleton Barnes told
Association President Peter Caruso that Eugene Bradbury, a social studies and
math teacher in the school system for a number of years, had been selected to
fill a vacant guidance counselor position.  The position had been vacant
during most of the 1980-81 school year, and the District had posted the
vacancy throughout the school system and had advertised it in several
newspapers, stating in its announcements, "Maine State certification required"
for the position.  Maine's Department of Educational and Cultural Services
issues a Guidance Counselor certificate, but Bradbury was not qualified to
receive a Guidance Counselor certificate at the time he was hired for
the position.  A number of certified guidance counselors applied for the
position and were interviewed by the Superintendent.

                                      -2-


     2.  Bradbury had seen the announcements for the vacant guidance counselor
position and applied for the position even though he was not a certified
guidance counselor.  On March 30, 1981 Barnes told the District's Board of
Directors that he had transferred Bradbury to the guidance counselor position.
Bradbury's salary agreement for the guidance counselor position is dated
May 4, 1981.

     3.  During the evening of April 7, Caruso phoned the Chairman of the
District's Board of Directors and asked him about the hiring of Bradbury as a
guidance counselor.  The Chairman said that the District was going to send
Bradbury back to college to get a master's degree in guidance counseling and
was going to pay all Bradbury's expenses incurred in getting the degree,
including tuition, travel, and room and board.

     4.  Association members discussed the hiring of Bradbury at a general
meeting held on April 8, 1981.  Bradbury, a member of the Association,
explained that he was going to take guidance courses at the University of
Maine at Orono starting that summer and that the District had agreed to pay
his expenses.  Bradbury said that the District had given him three years in
which to get his masters degree in secondary guidance counseling, and that he
had agreed to work for the District for three years following the completion
of the master's program.  The guidance counselor position is included in the
bargaining unit represented by the Association and a collective bargaining
agreement between the District and the Association was in effect when Bradbury
was hired.

     5.  Further discussion about the situation took place at an Association
meeting on April 16, 1981.  Among the concerns raised by teachers present at
this meeting was that the District apparently had bypassed the bargaining
agent and negotiated an agreement directly with Bradbury, that an uncertified
person had been hired as the guidance counselor, that the District was going
to pay for Bradbury's master's degree, and that other teachers not certified
as guidance counselors might have applied for the position had it been known
that the District was willing to pay for a  master's program.  The teachers
instructed Caruso and two other Association members to meet with Barnes
informally to try to get more information about the hiring of Bradbury.

     6.  Caruso and the other two teachers went to Barnes' office the next
morning prior to the beginning of school.  When they arrived, Bradbury was
sitting in the office talking to Barnes.  Barnes told Caruso that that was
not the time to discuss

                                      -3-


the guidance counselor position and that he was not sure if he would ever meet
to discuss the matter.

     7.  On May 1 Caruso wrote to Barnes requesting an informal meeting to
discuss the posting of the job announcement for the vacant guidance counselor
position and whether an uncertified person could properly fill the position.
A meeting was held on May 11, at which time a number of issues were discussed.
The Association requested that Barnes repost the vacancy and interview all
teachers, including Bradbury, who wished to apply, but Barnes refused to do
this.  On June 2 Barnes informed Caruso that Bradbury had been placed under
contract as a guidance counselor for the 1981-82 school year.

     8.  On May 28, 1981 the Association filed two grievances concerning the
hiring of the uncertified guidance counselor, one pursuant to the District's
compliance plan regarding discrimination and the other pursuant to the
parties' collective bargaining agreement.  The first grievance alleged that
the District was not in compliance with several goals stated in the compliance
plan, while the second grievance alleged that the District had violated the
recognition, negotiation procedure, professional credits, and hiring procedure
and individual contracts clauses in the collective bargaining agreement.
Hearings on both grievances were held on July 13, 1981.

     9.  On July 14, the District's Compliance Committee denied the grievance
filed pursuant to the compliance plan, finding that the hiring of Bradbury
did not result in discrimination on the basis of race, sex, or cultural
background, and that the District had not violated its goal of providing
career counseling, encouragement, and training for all personnel on an
equitable basis.  The District's Board of Directors also denied the grievance
filed pursuant to the contract on July 14.  On July 21 the Association filed
for arbitration of the contractual grievance.  Hearings before an arbitrator
were held on November 2, 1981 and January 16, 1982, and no decision on the
merits of the grievance had been rendered at the time of the hearings in this
case.

    10.  On June 15, 1981 the Association's Chief Negotiator wrote to Barnes
requesting a copy of the individual contract between the District and Bradbury
for the guidance counselor position as well as copies of any other agreements
made by the District and Bradbury concerning the position.  Barnes responded
on June 18, enclosing a blank annual salary agreement and stating that he
would furnish a copy

                                      -4-


of the individual contract once he had received Bradbury's permission to do
so.  Despite the fact that the District had agreed to pay for Bradbury's
master's degree in exchange for Bradbury's promise to work for the District
for three years, the Superintendent also indicated that "no special
provisions" were attached to Bradbury's contract.  On August 27 the Chief
Negotiator repeated the request for a copy of the individual contract and of
any other agreement between the District and Bradbury, while the Association's
UniServ Director filed a request pursuant to the Freedom of Access law for the
individual contract and annual salary agreement on September 3.  Barnes did
not respond to either of these requests.  A copy of Bradbury's annual salary
agreement was produced as a District exhibit at the October 14th pre-hearing
conference in this case.

    11.  On October 22, 1981, the arbitrator hearing the contract grievance
issued a subpoena directing that Barnes produce certain documents, including
all contracts and agreements between the District and/or Barnes and Bradbury
regarding Bradbury's employment as guidance counselor, as well as all payment
vouchers showing payment to Bradbury of expenses associated with his master's
program in guidance counseling.  On October 28, 1981, five days before the
first day of the arbitration hearing, the District's attorney forwarded to the
Association copies of Bradbury's salary agreements, some of which were
illegible.  Subsequent to the first day of arbitration the District's labor
consultant forwarded to the Association purported copies of payment vouchers,
all of which were illegible.  Barnes did not produce other information as
required by the subpoena, and on or about January 6, 1982, ten days before the
second day of the arbitration hearing, the Association President asked Barnes
for this information.  Barnes refused to provide the information, saying "that
arbitrator doesn't have any authority over anything."

    12.  At an Association meeting on June 16, 1981, Jeffrey Wark, a member of
the Association, told Bradbury that the central matter in the controversy was
that Wark was not offered an equal opportunity to apply for the guidance
counselor position, which Wark characterized as "quite a plum."  Bradbury
subsequently told Barnes about Wark's comment, which Barnes included, in
somewhat garbled form, as an allegation in the District's prohibited practices
complaint in this proceeding.  When Bradbury was questioned about this
allegation at an Association meeting in the fall of 1981, he announced that he
intended to relate to the Superintendent any statements which he deemed
asinine made during Association meetings.

                                      -5-


    13.  On June 19, 1981, the Association's UniServ Director wrote to the
Commissioner of the Department of Educational and Cultural Services, asking
whether the hiring of an uncertified guidance counselor had been authorized by
the Department.  The Commissioner contacted Barnes and attempted to work out
a plan to provide guidance services to the school system by a certified
counselor.  On September 3, 1981, however, the Commissioner notified Barnes
that the hiring of an uncertified guidance counselor was contrary to state law
and that the expenditure of public funds for uncertified personnel could
jeopardize the District's state subsidy and Barnes' certification as a
Superintendent of Schools.  The Commissioner noted that certified guidance
counselors were available and urged Barnes "to take immediate action to
resolve the problem."  Barnes continued to employ Bradbury as the guidance
counselor, however.

    14.  At some point during the summer of 1981 the Association notified
other teacher associations and guidance counselors and the media about the
guidance situation in M.S.A.D. No. 45.  This resulted in Barnes getting some
letters from other associations and counselors urging him to correct the
situation, as well as some media coverage of the controversy.

    15.  On October 8, 1981 the Association President requested pursuant to
26 M.R.S.A. Section 965(1)(C) that Barnes meet and consult within 10 days
"regarding the filling of a guidance vacancy."  Barnes replied on October 15,
stating that he would respond to the request after legal counsel had reviewed 
the request.  The Association again asked to meet and consult on October 20,
but Barnes did not respond to this request, and no meet and consult sessions
were held.


                                    DECISION

     At issue are the questions whether the Association violated 26 M.R.S.A.
Section 964(2)(A) and (B) by trying to force the District to bargain about the
hiring of an uncertified guidance counselor, and whether the District violated
26 M.R.S.A. Section 964(1)(A) and (E) by (1) refusing to provide information
pertinent to the Association's grievances, (2) negotiating directly with a
bargaining unit member, (3) engaging in surveillance of Association meetings,
and (4) refusing to meet and consult about the filling of the guidance
counselor vacancy.[fn]1  We conclude that
_______________

     1.  The Association also raised several other allegations, none of which
are supported by the evidence or the law.  We hereby dismiss all these
allegations.

                                      -6-


the District violated the Act by refusing to provide information and by taking
and using reports from Bradbury about what transpired at Association meetings,
and dismiss all remaining allegations.  We will order remedies necessary to
effectuate the policies of the Act.


                               I. The District's Allegation

     The District alleges that by pursuing the two grievances, by writing to
the Commissioner of the Department of Educational and Cultural Services, by
publicizing the fact that the District hired an uncertified guidance
counselor, and by requesting to meet and consult about the filling of the
guidance vacancy, the Association attempted to force the District to deal with
it about the hiring of a teacher, a matter in effect declared to be a non-
negotiable subject in Board of Directors of MSAD No. 36 v. MSAD No. 36
Teachers Association, 428 A.2d 419 (Me. 1981).  This attempt, the District
contends, constitutes a violation of Section 964(2)(A) and (B).[fn]2
We disagree, because a mere attempt to get a party to bargain about a non-
negotiable matter does not constitute a prohibited practice as defined in
Section 964 and because, in any event, the record does not show that the
Association attempted to force the District to bargain about the hiring of
Bradbury.  Rather, the record shows that the Association's actions were for
the most part legitimate attempts to protect the integrity of the collective
bargaining agreement and raise questions about the legality of the
Superintendent's actions under state law.

     A threshold question is whether the District has as a matter of law
alleged that any of the prohibited practices enumerated in Section 964(2) have
been committed.  We find that it has not.  The law is of course well-settled
that a party may not insist to impasse upon bargaining about a non-mandatory
subject of bargaining; "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
_______________

     2.  Section 964(2)(A) prohibits public employee organizations from:

                   "Interfering with, restraining or coercing employees
              in the exercise of rights guaranteed in Section 963 or a
              public employer in the selection of his representative for
              purposes of collective bargaining or the adjustment of
              grievances."

         Section 964(2)(B) prohibits public employee unions from "[r]efusing
         to bargain collectively with a public employer as required by
         Section 965."

                                      -7-


Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958).
The District has not and cannot, on the basis of the record before us, allege
that any such insistence has occurred in this case.  The District's allegation
that the Association has attempted to force it to bargain about the hiring
simply does not make out any conceivable prohibited practice; even if the
record showed that the Association had made such an attempt, it would not
constitute a refusal to bargain about any mandatory subject.[fn]3  The proper
action for an employer when in fact faced with an attempt to force it to
bargain about a non-negotiable subject is simply to ignore the attempt.
This is precisely what the District did, and properly so, as we discuss infra,
with regard to the Association's request to meet and consult about the filling
of the guidance vacancy.

     Even if an attempt to force an employer to bargain about a non-mandatory
subject could be a prohibited practice, the record does not show the
Association engaged in such an attempt.  The facts underlying the
Association's actions are that the District entered into a secret agreement
with Bradbury whereby the District agreed to pay all expenses for Bradbury to
obtain a master's degree in secondary guidance, with Bradbury agreeing to
remain in the employ of the District as a guidance counselor for three years
after obtaining his degree.  This was done despite the facts that the District
advertised that state certification was required for the vacant position and
that certified guidance counselors applied for the job and were interviewed by
the Superintendent.  Moreover, both the procedure by which the District and
bargaining unit member Bradbury arrived at the agreement and the terms of the
agreement itself appear to be in substantial variance with various terms of
the collective bargaining agreement.  The hiring of an uncertified person for
the position also may have violated state law and Department of Educational
and Cultural Services rules and regulations.[fn]4
_______________

     3.  A union could of course engage in such extreme forms of harassment as
to constitute interference with an employer in the selection of his bargaining
representative in violation of Section 964(2)(A) or an improper job action in
violation of Section 964(2)(C), but the record in this case falls far short of
supporting any such findings.

     4.  Barnes' testimony that Bradbury was not really hired to be a guidance
counselor is not credible because it is contradicted by all the other evidence
in the record.  For example, Bradbury's salary agreement states that he was
hired as a guidance counselor, Barnes apparently introduced Bradbury as "the
guidance counselor" at the beginning of the 1981-82 school year, and Bradbury
clearly understood that he was being hired as a guidance counselor.  The
District also refers to Bradbury throughout its prohibited practices complaint
as the "guidance counselor."  In light of the record evidence, we have no
doubt that Bradbury was employed as a guidance counselor.

                                      -8-


     Viewed in light of these background facts, the Association's actions
plainly were proper.  The grievance filed pursuant to the District's
Compliance Plan alleged that the hiring of Bradbury resulted in discrimination
against other teachers who might have applied for the job had they known that
possession of a guidance certificate was not in fact required, and that the
hiring violated the goal of providing career counseling and training to all
teachers on an equitable basis.  While the Compliance Committee denied this
grievance, we think the points raised by the Association were legitimate and
that the grievance cannot be construed as an attempt to coerce or harass the
District.  The same is true of the grievance filed pursuant to the contract,
alleging that the secret agreement and the procedure by which the District
hired Bradbury violated various contractual provisions.  Plainly the Asso-
ciation acted properly in raising these matters and seeking a determination
on whether the contract had been violated; such actions were well within the
rights and responsibilities given to it by the contract and the Act.

     We also cannot say that the facts that the Association raised questions
before the Department of Educational and Cultural Services about the hiring of
an uncertified person and publicized the fact that an uncertified guidance
counselor had been hired amount to attempts to coerce the District.  The
District had acted in a highly questionable manner and it certainly was proper
for the Association to question these actions.  While we conclude that the
District was not required to comply with the Association's request to meet and
consult about the filling of the vacancy, we cannot say that the request
amounted to a prohibited practice.  As we have already noted, the District
properly ignored this request.

     We do not agree with the District's contention that the decision in
M.S.A.D. No. 36, supra, prohibited all of the Association's actions in this
matter.  That decision holds that a school district cannot lawfully limit in
a collective bargaining agreement its exclusive statutory responsibility for
choosing teachers.  It does not follow from this decision, as the District
contends, that any attempt by an association to question or challenge the
hiring of an uncertified person under such circumstances as present in this
case is unlawful.  The present case obviously does not involve the typical
hiring situation and it bears noting that the thrust of the contract grievance
was that the District's actions leading up to the hiring of Bradbury (entering
into the secret agreement, not announcing that uncertified persons could apply
for the job, etc.), not the decision to hire itself, violated the contract.
Nothing said in M.S.A.D. No. 36 suggests that the Association was

                                      -9-


prohibited from raising such contentions.

     In short, we conclude that the Association did not violate the Act.
We will dismiss the District's complaint.


                         II. The Association's Allegations

     A.  The refusal to provide information.  On June 15, 1981 the Associa-
tion's Chief Negotiator requested from Superintendent Barnes a copy of the
individual contract and any other agreements pertaining to the guidance
counselor position made by the District and Bradbury.  Barnes responded on
June 18th, enclosing a blank annual salary agreement and stating he would
provide a copy of the individual contract once Bradbury had given him
permission to do so.  Despite the fact that the District and Bradbury had
already entered into the secret agreement, Barnes also stated that "no special
provisions" were attached to Bradbury's contract.  Barnes made no further
response to the request, and on August 27th the Chief Negotiator repeated the
request.  On September 3rd the UniServ Director requested copies of the
individual contract and annual salary agreement pursuant to the Freedom of
Access law.  The Superintendent did not respond to either of these requests.
A copy of the annual salary agreement was produced as a District exhibit at
the October 14th pre-hearing conference.

     On October 22, 1981 the arbitrator issued a subpoena directing the
District to produce certain documents and information.  On October 28th the
District's attorney forwarded to the Association copies of Bradbury's salary
agreements, some of which were illegible.  After the first day of the
arbitration hearing the District's labor consultant forwarded purported copies
of other subpoenaed documents, all of which were illegible.  The District did
not produce other information as directed in the subpoena, and prior to the
second day of the arbitration hearing the Association President asked Barnes
for this information.  The Superintendent refused to provide the information.

     The District's refusal to provide information pertinent to the Associa-
tion's grievances is a blatent violation of the Act:  "The duty to bargain
collectively . . . includes a duty to provide relevant information needed by
a labor union for the proper performance of its duties as the employees'
bargaining agent."  Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct.
1123, 59 L.Ed.2d 333 (1979).

                                      -10-


Such information includes that relevant to the administration and policing of
the contract in general as well as that pertinent to any potential or actual
grievance.  See, e.g., Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 68 (3rd Cir.
1965).  Here the District refused to provide the requested information from
the time of the initial request on June 15, 1981 to the time of the hearing
of this case approximately 6 months later.  The requested information
obviously was relevant to the Association's grievances; the agreements with
Bradbury, the payment vouchers, and Bradbury's application for the job all go
to the heart of the Association's contentions that the District violated its
Compliance Plan and that the secret agreement violated the collective
bargaining agreement.  Most of the requested information was public informa-
tion, so the District cannot raise confidentiality as a defense.  Moreover,
the District was required to participate in the grievance proceedings since,
as we have noted, the grievances were entirely proper.  This the District
implicitly recognized since it did in all other respects participate in the
proceedings.

     We conclude that the District's refusal to provide pertinent information
constitutes a violation of its duty to bargain as well as unlawful inter-
ference with the teachers' free exercise of their right to bargain collec-
tively.  The District accordingly has violated Section 964(1)(E) and (A).[fn]5
We will order the District to cease and desist from refusing to provide
relevant information needed by the Association for the performance of its
duties as the bargaining agent, and to take the affirmative action of
providing such information whenever requested by the Association.
_______________

     5.  Section 964(1)(E) prohibits public employers from "[rlefusing to
bargain collectively with the bargaining agent of its employees as required by
Section 965," while Section 964(1)(A) states that public employers are pro-
hibited from "[ilnterfering with, restraining or coercing employees in the
exercise of rights guaranteed in Section 963."

         Section 963 states:

                   No one shall directly or indirectly interfere with,
              intimidate, restrain, coerce or discriminate against public
              employees or a group of public employees in the free exercise
              of their rights, hereby given, voluntarily to join, form and
              participate in the activities of organizations of their own
              choosing for the purposes of representation and collective
              bargaining, or in the free exercise of any other right under
              this chapter.

                                      -11-


     2.  The agreement with Bradbury.  The record shows that the District,
without the knowledge of the Association, entered into an agreement with
bargaining unit member Bradbury which provided significantly greater benefits
than those provided in the collective bargaining agreement.  The law is of
course well-settled that individual negotiations with bargaining unit members
bypasses the exclusive bargaining representative in violation of Section
964(l)(A) and (E).  See, e.g., Medo Photo Supply Corp. v. NLRB, 321 U.S. 678,
683-684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944).  The District's defense to this
charge, however, is that consideration of the allegation is time-barred by
Section 968(5), which provides in pertinent part that "no hearing shall be
held based upon any alleged prohibited practice occurring more than 6 months
prior to the filing of the complaint."

     The Association first learned of the agreement between the District and
Bradbury on April 7, 1981, when the Association President spoke to the
Chairman of the District's Board of Directors.  Bradbury confirmed the
existence of the agreement at an Association meeting on April 8th.  The
Association did not file its counter-claim alleging that the agreement
violated the Act until November 23, 1981, however, well over 6 months after
the Association became aware of the existence of the agreement.  We accord-
ingly conclude that the allegation is barred by the six-month statute of
limitations contained in Section 968(5)(B) and that is must therefore be
dismissed.  See, e.g., Local Lodge No. 1424, Machinists v. NLRB, 362 U.S.
411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960).[fn]6

     3.  Surveillance of Association members.  The record shows that Bradbury
reported to Barnes the gist of a comment made by Association member Jeffrey
Wark at a union meeting in June, 1981, and Barnes included this comment in an
allegation in the District's complaint.  When Association members questioned
Bradbury about how Barnes had learned of the comment, Bradbury stated that he
was going to report to Barnes any asinine statements made at Association
meetings.  On one occasion Bradbury was seen in Barnes' office discussing
something with Barnes early one morning after an Association meeting the
prior evening.

      We conclude that Barnes was in essence using Bradbury to spy on Asso-
ciation meetings.  The facts that Barnes and Bradbury had a close relation-
ship, that they had entered into several deals between themselves, and that
Barnes was hostile
________________

     6.  All other of the Association's allegations fall within the six-month
statute of limitations and thus were timely filed.

                                      -12-


towards the Association and on at least one occasion used the information
provided by Bradbury against the Association lead us to believe that the two
men had at least implicitly agreed that Bradbury would report on Association
meetings to Barnes.  Such an arrangement for the surveillance of Association
activities constitutes unlawful interference of employee rights in violation
of Section 964(1)(A).  See, e.g., Saginaw Furniture Shops, Inc. v. NLRB, 343
F.2d 515, 517 (7th Cir. 1965); Liberty Homes, Inc., 216 NLRB 1102, 1106
(1975).  The knowledge that Bradbury was reporting their activities to Barnes
obviously would have a strong chilling effect on the free exercise of the
Association members' protected rights.  We conclude that the District violated
Section 964(1)(A) by using Bradbury as an informer, and we will order the
District to cease and desist from using employees to report on the activities
of Association members.

     4.  The meet and consult request.  On October 8, 1981 the Association
requested pursuant to Section 965(1)(C) that the District meet and consult
within 10 days "regarding the filling of a guidance vacancy.[fn]7  Barnes
responded on October 15th, stating that he would reply to the request after
it had been reviewed by legal counsel.  The Association repeated its request
on October 20th, but Barnes made no response to this request and no meet and
consult sessions were held.

     We find that the District properly refused to meet and consult about the
"filling of a guidance vacancy" because this issue is not an educational
policy matter within the meaning of Section 965(1)(C).  The Court in M.S.A.D.
No. 36 held that 20 M.R.S.A. Section 161(5) reflects "a specific legislative
intent to reserve to the school board and superintendent responsibility for
filling teaching positions," and that a school board could not lawfully limit
this responsibility through an agreement with a teachers association.
428 A.2d at 422.  We have held in a number
_______________

     7.  Section 965(1)(C) states that public employers and bargaining agents
are mutually obligated:

          To confer and negotiate in good faith with respect to wages,
     hours, working conditions and contract grievance arbitration except
     that by such obligation neither party shall be compelled to agree to
     a proposal or be required to make a concession and except that
     public employers of teachers shall meet and consult but not negotiate
     with respect to educational policies for the purpose of this paragraph,
     educational policies shall not include wages, hours, working conditions
     or contract grievance arbitration.

                                      -13-


of cases that matters governed by statute are "non-negotiable" subjects about
which a school district is neither obligated to negotiate nor meet and
consult.  See, e.g., Brunswick School Board v. Brunswick Teachers Association,
PLERB No. 75-19 (Jan. 16, 1976).[fn]8  Since, unlike the Association's
grievances, the request to meet and consult raises an issue over which school
boards and superintendents have exclusive responsibility, the matter is
governed by statute and the District was not obligated to meet and
consult.[fn]9  We will dismiss the Association's allegation.


                                     ORDER
                                        
     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. Section 968(5), it is hereby ORDERED:

     1.  That the prohibited practices complaint filed by Maine School
         Administrative District No. 45 is dismissed.

     2.  That Maine School Administrative District No. 45, and its
         representatives and agents:

         a) Cease and desist from:

            1)  Refusing to provide information pertinent to the
                Association's performance of its duties as the
                teachers' bargaining agent

            2)  Using employees to observe or report on the activities
                of any Association member or the matters discussed at
                any Association meeting.
_______________

     8.  Educational policy, on the other hand, has been defined as matters
involving "functions generally cognizable as 'managerial' and 'policy-making'"
which are "significantly substantial" so as to override any reasonable
relationship to working conditions.  City of Biddeford v. Biddeford Teachers
Association, 304 A.2d 387, 420 (Me. 1973).  Mandatory subjects of bargaining
are defined in Section 965(1)(C) as matters relating to "wages, hours, working
conditions and contract grievance arbitration."

     9.  The Association's contention that it also wished to meet and consult
with the District about other matters which may have involved educational
policy is misplaced because the Association did not notify the District that
it wished to meet about these matters.  The District obviously cannot be
faulted for failing to meet and consult about matters not raised by the
Association.

                                      -14-


            3) In any other like or related manner interfering with,
               restraining, or coercing employees in the exercise of
               rights guaranteed in Section 963 of the Act.

        b)  Take the following affirmative actions necessary to effectuate
            the policies of the Act:

            1)  Furnish promptly upon request by the Association all infor-
                mation pertinent to the Association's performance of its
                duties as the teachers' bargaining agent.

            2)  Post at all places where notices to employees are customarily
                posted copies of the attached notice.  Copies of this notice,
                after being duly dated and signed by Superintendent of Schools
                Carleton Barnes, shall be posted by the District immediately
                upon receipt and shall be maintained by it for 60 consecutive
                days thereafter.  Reasonable steps shall be taken by the Dis-
                trict to insure that said notices are not altered, defaced or
                covered by any other material.

            3)  Notify the Executive Director, in writing, within 20 days of
                the date of this Order, of the steps the District has taken to
                comply herewith.

     3.  All the Association's remaining allegations are dismissed.


Dated at Augusta, Maine, this 17th day of September, 1982.
       

                                       MAINE LABOR RELATIONS BOARD



                                       /s/________________________________
The parties are advised of             Gary F. Thorne
their right pursuant to                Alternate Chairman
26 M.R.S.A. Section 968
(5)(F) to seek a review
by the Superior Court of
this decision by filing                /s/________________________________
a complaint in accordance              Don R. Ziegenbein
with Rule 80B of the Rules             Employer Representative
of Civil Procedure within
15 days after receipt of this
decision.
                                       /s/________________________________
                                       Russell A. Webb
                                       Alternate Employee Representative

                                      -15-
                                                                                                   -15-

                                  STATE OF MAINE
                            MAINE LABOR RELATIONS BOARD
                                Augusta, Maine 04333


                              NOTICE TO ALL EMPLOYEES

                                    PURSUANT TO

                            a Decision and Order of the

                            MAINE LABOR RELATIONS BOARD

                    and in order to effectuate the policies of the

                    MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT

                         we hereby notify all personnel that:

(1) WE WILL NOT refuse to provide information pertinent to the Teachers Asso-
    ciation's performance of its duties as a bargaining agent.

(2) WE WILL NOT use employees to observe or report on the activities of any
    Teachers Association member or the matters discussed at any Teacher
    Association meeting.

(3) WE WILL NOT in any like or related manner interfere with, restrain, or
    coerce employees in the exercise of rights guaranteed in Section 963 of
    the Act.

(4) WE WILL furnish promptly upon request by the Association all information
    pertinent to the Association's performance of its duties as the teachers'
    bargaining agent.

(5) WE WILL notify the Executive Director of the Maine Labor Relations Board,
    in writing, within 20 days of the date of the Decision and Order, of the
    steps we have taken to comply with the Decision and Order.


                                   MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 45

Dated: _________________________   By: _______________________________________
                                       Carleton L. Barnes
                                       Superintendent of Schools


This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone
289-2016.