Windham School Committee v. Windham Educators' Assoc., No. 87-14 and -15, aff'd CV-87-153 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 87-14 and -15 Issued: April 17, 1987 ________________________________ ) WINDHAM SCHOOL COMMITTEE, ) ) Complainant, ) ) v. ) ) WINDHAM EDUCATORS' ASSOCIATION, ) ) Respondent. ) ________________________________) DECISION AND ORDER ) WINDHAM EDUCATORS' ASSOCIATION, ) ) Complainant, ) ) v. ) ) WINDHAM SCHOOL COMMITTEE, ) ) Respondent. ) ________________________________) On February 18, 1987, the Windham School Committee (Committee) duly filed with the Maine Labor Relations Board (Board) a prohibited practice complaint alleging both that the Windham Educators' Association (Association) has engaged in a work stoppage, slowdown or strike within the meaning of 26 M.R.S.A. 964(2)(C)(1), (2) and (3) (1974) and that the Association has refused to bargain within the meaning of 26 M.R.S.A. 964(2)(B) (1974) by failing to comply with collective bargaining obligations set forth in 26 M.R.S.A. 965(1) (C) and (E) (Pamph. 1986). More specifically, the Committee contends that members of the Association engaged in concert in unlawful "job actions" consisting of refusals to escort students en route to lunch, refusals to work on assigned accreditation projects during school hours and refusals to attend staff meetings. The Committee's refusal- to-bargain charge is based upon the Committee's allegations that during mediation and during the pendency of a request for fact-finding the Association breached a ground rule prohibiting certain press -1- releases, that members of the Association's negotiating team "solic- ited and urged" the membership's rejection of a tentative collective bargaining agreement, that the Association sent a communication to all teachers intentionally mischaracterizing Committee actions in an attempt to undermine the Committee's negotiating team and that the Association instituted prohibited "job actions" to coerce the Committee in contract negotiations. On February 20, 1987, the Association duly filed a prohibited practice complaint with the Board which alleges that the Committee violated 26 M.R.S.A. 964(1)(A) (1974) by threatening and imposing the suspension of classes, and by issuing a letter of reprimand threatening loss in pay and legal action, in retaliation for the par- ticipation of Association members in the above-mentioned "job actions" and for the purpose of coercing the Association in contract nego- tiations. The Association's complaint additionally alleges that the Committee's actions in this regard constitute a refusal to bargain within the meaning of 26 M.R.S.A. 964(1)(E) (1974) and a violation of the bargaining obligations set forth in 26 M.R.S.A. S 965(1)(C) and (E) (1974). The Association's February 23, 1987 response to the Committee's complaint answers that the ground rules prohibited only news releases about negotiations and not others, that in light of the Association's notice to the Committee the failure or refusal of teachers to escort children to lunch was not unilateral, that members of the Association's negotiating team did not actively solicit and urge rejection of the tentative agreement on or before February 6, 1987, and that it has not always been the duty of Manchester/Arlington School elementary teachers to escort their children to lunch. Also on February 23, 1987, the Association submitted a request that its complaint be amended to reflect an allegation that the Committee and its Superintendent have dominated and interfered with the existence and administration of the Association in violation of 26 M.R.S.A. 964(C) [sic]. The Association filed an amendment to its response on February 25, 1987. The Committee's February 25, 1987 response denies the Association's contentions that the Committee has never had an escort -2- policy and that the Committee has nine staff members at Manchester/ Arlington who are available to escort children en route to lunch. Further refinement of the parties' positions at hearing and in their briefs revealed the following. The Committee contends that the activ- ities which were halted by the teachers were not voluntary but were duties established through past practice, the performance of which may be curtailed only through agreement reached in negotiations for a suc- cessor collective bargaining agreement. The Association contends that implementation of its "job actions" constituted a permissible bargaining tactic and that the Committee's actions taken in opposition thereto constitute unlawful retaliation for participation in pro- tected Association activity. Each party requests that the Board find the prohibited practices which it alleges the opposing party has committed, that the Board order the opposing party to cease and desist therefrom, and that the Board award costs and attorneys fees. The cases were consolidated for hearing in light of the commonality of nearly all the factual and legal issues. Because of the nature of the allegations in the complaints, the Board, consisting of Chairman Edward S. Godfrey, pre- siding, Thacher E. Turner, Employer Representative, and George W. Lambertson, Employee Representative, convened an expedited full hear- ing on both complaints on February 27, 1987, without any prehearing conference. At the Board's request, briefs arguing issues raised at the hearing were filed by March 5, 1987, and the Board deliberated over the cases at a conference held March 10, 1987. JURISDICTION The Board has jurisdiction to hear and determine these cases and to render a decision and order as provided in 26 M.R.S.A. 968(5) (1974 & Pamph. 1986). FINDINGS OF FACT Upon review of the entire record, the Board makes the following findings of fact. The Committee is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Pamph. 1986), of the employees in the -3- certified professional employee bargaining unit represented by the Windham Educators' Association. The Association is the duly certified collective bargaining agent of those employees within the meaning of 26 M.R.S.A. 962(2) (1974). The Committee and the Association were parties to a collective bargaining agreement in effect from September 1, 1983, through August 31, 1986. That agreement is part of the record in this case. It contains the following language con- cerning duty-free lunches: Teachers shall have a duty-free lunch period of at least the following lengths: 1. Elementary teachers will have a duty-free lunch period of one hour except that one teacher per grade level per school day will assist with noon time supervision. 2. Junior and Senior High School - 20 minutes. The Committee and the Association began collective bargaining negotiations for a new contract on June 4, 1986, in a meeting at which they agreed upon certain ground rules. One of those ground rules was that no news release about negotiations would be made except by mutual agreement between the parties. The parties met and negotiated thereafter on June 11, June 18, July 22, July 29, August 5, August 12, August 19 and August 26. After the August 26 negotiating session the parties reached impasse and agreed that a mediator should be requested. On September 16, 1986, the Committee filed a Mediation Request Form with the Executive Director of the Board. Jane Roy, a mutually accep- table mediator, was appointed and the parties met for mediation sessions on October 21, November 12, November 25, December 4 and December 16, 1986. Roy was to speak with the Association after the parties' December 16 session and it was the Committee negotiating team's understanding that if Roy thought it would be fruitful she would schedule a January 4, 1987 meeting during the Christmas break. Superintendent Gary Moore sent a letter to Association Chief Negotiator Philip Moody on December 30, 1986, purporting to memorialize the Committee's understanding of the state of nego- tiations resulting from the December 16 meeting. That letter stated, in pertinent part: This is to confirm that at the December 16, 1986 mediation session the School Committee offered to refer to -4- impartial fact finders and/or arbitrators the WEA's proposal to submit School Committee decisions on just cause to arbitration and the School Committee's proposal to reduce the elementary duty-free lunch period. This would have permitted settling the rest of the contract immediately, implementing pay raises and awarding all retroactive back pay. The School Committee's suggestion was to resolve all other language questions on the basis agreed to by the WEA at the December 4, 1986 mediation session and to implement base pays of $14,600 for 1986-87 and $15,800 for 1987-88. The WEA negotiating team, however, withdrew its acceptance of provisions which it had agreed to on December 4 and sought further language changes to the existing contract, which left the entire contract unsettled. On or about December 17, 1986, Emery Stevens of the Portland Evening Express reported that Association President Harold Leighton had stated that an Association opinion letter would be sent to parents and citizens of Windham apprising them that Association "members have been working without a contract since September, haven't received pay increases agreed to in the previous contract and have spent many hours in negotiations and mediation." The article also reported that Leighton had stated that since the Association has had no "success in drawing up a contract with the School Committee" it would "be taking steps to encourage a satisfactory settlement," including the cessation of "volunteer work after school hours" and cessation of "volunteer com- mittee and club work" and work "on a pilot teacher certification pro- ject." Finally, the article reported that Leighton would not discuss either what the Association "is asking in its contract proposals or what caused an impasse, explaining that both sides had agreed not to discuss it publicly." Identical letters, one to the editor of the Windham Courier Free Press, written by Association Chief Negotiator Phil Moody and printed on December 16, 1986, and one written by Leighton and printed in the Westbrook American Journal on December 17, 1986, stated that the "[tleachers in the Windham school system have been working without a contract since September" and "without pay increases already agreed to in the previous contract." The letters stated that members of the Association have "spent many hours in negotiations and in mediation . . . have not had success in drawing up a contract with the School -5- Committee," and [c]onsequently . . . will be taking steps to encourage a satisfactory settlement," including "stopping volunteer committee and club work." The letters also stated that "[wlhile we are pre- vented by law from discussing specific contract proposals, we will be discussing the underlying issues and why they are important enough for us to take this action" at "an educational 'coffee', at which members will speak." Neither in the letters nor in the interview were any details of the contract negotiations between the Association and Committee discussed. After these articles ran, Moore began receiving inquiries from teachers, parents, other newswriters and reporters, who asked, "What are these problems . . . why can't you resolve them?" and "Why won't you attend the coffees like the teachers and explain your side of the story?" Moore did not respond to these questions because he felt he could not in light of the ground rule. By an undated communication addressed to "Dear Colleague" and sent out in late December or early January, the Association placed blame for the slowness of progress in contract negotiations on the Committee. The letter also made a disparaging reference to the attorney for the Committee, who is also a member of the Committee's negotiating team. The Windham School District has four administrative units: Manchester/Arlington School, Senior High School, Junior High School and the K-2 School, which includes the Kindergarten building and grades one and two in the Field Allen and John Andrews schools. The Manchester/Arlington School houses all of grades three, four, five and six for the Windham School District. Manchester/Arlington is comprised of two buildings separated by a parking lot. Arlington, a smaller building supplemented by two portable classrooms, has ten teachers and a total of 250 students, who comprise eight third-grade, two fourth-grade and three special education classes. Thirty-five of these students are either emotionally or physically handicapped. The Arlington School also houses one speech therapist area. Located in the Manchester building, separated from the Arlington School by a parking lot, are the cafeteria, a special education room, an art room and 400 students composed of the balance of Windham's fourth-grade students, seven fifth-grade classrooms, seven sixth-grade classrooms -6- and eighteen teachers. Arlington has typical elementary classrooms while Manchester has open-learning areas. At the Manchester School, a person directly outside a classroom can look into the classroom over a five-foot wall. The lunch period at the Manchester/Arlington School is from 11:30 a.m. to 1:00 p.m. During this period at any one time there are approximately three hundred children in the cafeteria, along with four teachers on duty to assist with noon time supervision--consisting of one teacher per grade level in grades three, four, five and six. Noon-aides perform their lunch time duties both on the playground and in the cafeteria. There are four noon-aides presently working at the Manchester/Arlington School. Because of difficulty in recruiting individuals to fill the vacancies, two noon-aide positions are pre- sently vacant. There are also two or three special education aides, two secretaries, and five or six reading specialists at the Manchester/ Arlington School. Before the "job action" Manchester/Arlington School Principals Garrow and Hamlyn ordinarily devoted their time during the lunch period to meetings with parents and dealing with the Committee on other matters. Teachers in the Manchester building of the Manchester/Arlington School had escorted students to lunch for some time prior to the "job action." Prior to March of 1986 at the Arlington building, aides came to bring the children to lunch two classrooms at a time. At that point the teachers' duty-free time began when the aides took charge of the children. In March of 1986, due in part to the slowness of the aides escort procedure, a change in the lunch hour, and also to cour- tesy and a desire on the part of the teachers that their classes not disturb the classes of others, the teachers volunteered to begin per- sonally escorting their students to the lunchroom. The escorting of children en route to lunch since that time has always been accomplished during and as a part of the duty free lunch period. Prior to the "job action," the classroom teachers took care before their students' lunch period to assure that their students washed up and had their lunches or lunch tickets. The time required to escort the students to lunch at the Manchester/Arlington School varies from one to ten minutes per -7- classroom. During the "job action," because it took eight to ten minutes for members of the administration and their assistants to release all of the classes, some classes were unattended for eight to ten minutes. Due to the shortage of supervisory personnel created by the "job action," the student restrooms were inadequately supervised. During the first few days of the "job action" some students were not taken to the lavatories before lunch. Additionally, coincident with the "job action" the number of students sent to lunch-time detention and study hall nearly tripled, making adequate supervision difficult. After lunch in the Manchester/Arlington School, the children go unescorted out to recess in small groups. When the bell rings, they line up unescorted outside the particular classrooms or learning areas in which their classes will resume. They are then let into the classrooms by their teachers. In cold weather, Manchester students return unescorted to the learning areas where their coats and boots are located, before going outside. Students from Arlington, who are prepared for the outside before leaving for lunch, keep their coats with them at lunch and are released to the playground. During ex- tremely cold weather the Arlington students return directly from lunch across the parking lot, unsupervised, to their classrooms where noon- aides are present to supervise them. The Committee requested appointment of a fact-finding board on January 8, 1987. On January 14 and 16, 1987, Leighton sent a letter to each of the four Windham Principals apprising them of "job actions" which the Association intended to implement on January 20, 1987, as a result of a vote of the Association held on January 13, 1987. Principal Garrow at the Manchester School was notified, in pertinent part, that: All k-6 W.E.A. members, who are not scheduled for duty, will be taking their duty free lunch hours in its entirety and will not be available to escort their students to or from the cafeteria. These members will also be unavailable to work with students during this time period. It will be time for teachers to use as they see fit. Item two relates to non-contractual committee work. The W.E.A. k-6 members will cease all committee work during and after school. Attendance at scheduled and unscheduled staff meetings will also stop. -8- The last job action voted upon by the members was the elimination of all work and support of the accreditation process for k-6. Principal Gendron, who administers the K-2 program in the Kindergarten Building, the Field Allen and the John Andrews schools, was notified, in pertinent part, that: All k-6 W.E.A. members, who are not scheduled for duty, will be taking their duty free lunch hour in its entirety and will not be available to escort their students to or from the cafeteria. These members will also be unavailable to work with students during this time period. It will be time for teachers to use as they see fit. Item two relates to non-contractual committee work. The W.E.A. k-6 members will cease all committee work during and after school. Attendance at scheduled and unscheduled staff meetings will also stop. Item three addresses the subject of professional obser- vations from other schools. Until such time as a contrac- tual settlement occurs, we will not host said visits. The last job action voted upon by the members was the elimination of all work and support of the accreditation process for k-6. Junior High School Principal Shortsleeve was notified, in pertinent part, that: Item one concerns activity periods. All non-contractual activities will no longer be performed by W.E.A. members. We suggest this time revert to classroom teaching. Item two relates to non-contractual committee work. The W.E.A. 7-12 members will cease all committee work during and after school. Attendance at scheduled and unscheduled staff meetings will also stop. The last job action voted upon by the members was the elimination of all work and support of the accreditation process for 7-12. Senior High School Principal Timmons was notified, in pertinent part, that: Item one concerns activity periods. All non-contractual activities will no longer be performed by W.E.A. members. We suggest this time revert to classroom teaching. Item two relates to non-contractual committee work. The W.E.A. 7-12 members will cease all committee work during -9- and after school. Attendance at scheduled and unscheduled staff meetings will also stop. The last job action voted upon by the members was the elimination of all work and support of any accreditation/re- accreditation process for 7-12. Although each of these letters notifying the Principals of "job actions" was marked for distribution to Moore, he did not receive a copy of any of these notices directly from the Association. Rather, he was notified by telephone of their receipt by one or two of the Principals, and was, on February 14, provided copies by the Princioals, who sought direction from him in light of the threatened "job actions." Moore's response was to instruct the Principals not to respond to the letters and to refrain, if possible, from precipitating confrontation with the Association's members over activities involved in the threatened "job actions." In an effort to avoid confrontation and controversy, the Superintendent directed that the scheduling of meetings be postponed until after the conclusion of negotiations, which he anticipated to be imminent. On January 15, 1987, Moore notified the Manchester/Arlington faculty, in writing, of his receipt of a copy of Leighton's January 14, 1987 letter to Principal Garrow. On January 16, 1987, Moore notified the K-2 faculty, in writing, of his receipt of a copy of Leighton's January 16, 1987 letter to Principal Gendron. Both of these letters instructed the respective faculties as follows: The safety and welfare of the children require that the current and historical practice of teachers escorting children to and from the cafeteria be continued. Thus, you are directed to continue that practice. Additionally, it is expected that staff meetings will be attended by you when these meetings are called for by the building administrator. Work on the accreditation process is critical to the devel- opment of our school improvement plan and to the degree that this effort has been provided for by the release of students on Wednesday afternoons, you are directed to par- ticipate in this task. In addition, the K-2 letter contained the following instructions: Regarding your refusal to permit professional observations from other school systems, those programs which are offi- -10- cially designated as demonstration sites or where funding by grant money is contingent upon being open for professional visitation will remain available for visits. Mrs. Gendron and I have agreed that other scheduled visitations will be postponed until an atmosphere more conducive to these activ- ities is re-established. On January 16, 1987, Moore notified the Junior High faculty, in writing, of his receipt of Leighton's January 14, 1987 letter to Shortsleeve. This letter contained the following instructions to the facultly. Conducting activities during activity period during the school day is a part of your assigned responsibility, and you are directed to meet that responsibility. Attendance at staff meetings as called by the administration is expected. Work on the accreditation process is critical to the devel- opment of our school improvement plan. To the degree that this effort has been provided for with release time, you must participate. As a result of a unanimous Association vote, the Association's "action committee" drafted the following letter to parents. The letter was mailed on January 16, 1987, to the parents of students, in envelopes addressed by the teachers of each individual student. This letter is to inform you of a job action that the K-6 Windham Educators' Association members voted and agreed upon at their meeting held on January 13, 1987. Our adminstration [sic] has been notified of this step as of January 14, 1987. This action will become effective as of Tuesday January 20, 1987. We are taking this action in response to unprecedented action by the School Committee which threatens our financial security and professional integrity. All K-6 W.E.A. members who are not scheduled for duty will be taking their duty free lunch hour in its entirety and will not be available to perform the usual voluntary noontime activities as have been provided in the past. These activities include: A. parental contacts B. grade level planning C. professional grade level and staff meetings D. preparation and making of classroom materials -11- E. budget meetings F. teachers' counseling of students G. make-up work for individual absences H. disciplinary follow-up I. correcting J. clubs K. activities L. use of library You may wish to show your support by calling a School Committee member. Moore spoke with Moody during the workweek prior to the "job action" in an effort to delay its implementation until after the next-planned negotiating session. Moore attempted unavailingly to reach Leighton and Moody during the weekend immediately prior to January 20. Moore sent no letters to the Association but did speak with Ms. Brooks Robinson, a member of the Association's negotiating team and urged her to do her best to have the Association refrain from the anticipated "job action," which Moore characterized to Robinson as likely illegal. Robinson seemed sympathetic to Moore's suggestion of a need to reduce the level of tension but made no guarantee. On January 20, 1987, the first day of the "job action," the information Moore received from his Principals indicated that there was not a problem relating to the escorting of children in the Field Allen, the John Andrews or the Kindergarten School. In these schools the "job action" was apparently only marginally implemented. Teachers at the Field Allen, John Andrews and Kindergarten schools apprised Principal Gendron of an alternative plan they had devised which satisfied her that the children would be adequately supervised. The "job action," as implemented at those schools, did not create problems of supervision. At the Field Allen and John Andrews schools the children were lined up in the hall and taken to lunch by aides; the teachers walked down the same halls as the students while going to the teachers' lounge, keeping the children under watchful eye. During the first lunch shift on January 20, students at Manchester were left unattended in a large number of classrooms. Some teachers did, however, remain in classrooms with their students. On the same day in the Arlington School most teachers brought their students down to the hallway closest to the Manchester School, lined them up and waited. A few teachers at Arlington did not join in the -12- "job action." Moore received reports from Principal Garrow and Vice Principal Hamlyn at the Manchester/Arlington School and from various Committee members that children were being left unattended in their classrooms when lunch began. Committeewoman Rebecca Keary visited the Superin- tendent's office twice, once on January 26, 1987, to speak about her own children being left unattended.[fn]1 The number of teachers who par- ticipated in the cessation of the escort of children en route to lunch increased from the commencement of the "job action" until the closing of the Manchester/Arlington School at the end of the day on February 12, 1987. The Principal and Vice Principal and eventually aides, assistants and parents at the Manchester/Arlington School were used to escort children to the cafeteria. At the Manchester School, as days went by, the students increasingly failed to stay in their seats. The noise level in both the classrooms and in the cafeteria escalated with the passage of time. During the discussions between Moore and Moody regarding arrange- ments for the parties' next negotiating session, Moody insisted that if there was a meeting the parties meet face to face without Mediator Roy. At the parties' next negotiating session, held on January 29, 1987, at which MTA representative George Luse was in attendance, the parties reached a tentative agreement. The tentative agreement was unanimously ratified by the Committee on February 4, 1987. Soon thereafter Moody arranged a meeting involving Moody, Moore and several negotiating team members, at which he informed Moore that a hand vote by 157 Association members on February 4, 1987, had unanimously called for rejection of the tentative agreement. At this straw ballot Leighton voted against the tentative contract after listening to the Association members' reasons for not wanting it. There is no evidence that Leighton urged or solicited rejection of the tentative agreement. As a result of this vote Moody suggested that Moore call for a meeting _________________________ 1 The record establishes that after leaving their classrooms teachers either frequented the teachers' lounge, left the school grounds or returned to their classrooms after the children had departed. -13- with the Committee. However, Moore refused to resubmit any contract matters to the Committee and demanded Moody submit the tentative agreement to a formal Association vote. The School Committee had been involved within the past year in a legal action involving a claim for damages flowing from alleged injury to a student during a physical education class supervised by a trained instructor. As a result of this and a similar incident in Augusta teachers have been spoken to concerning the issues of liability, the supervision of students, and the maintenance of a safe atmosphere. Moore went to Manchester/Arlington School in the early morning on Monday, February 9, 1987, to investigate reports that student behavior there was deteriorating. When Moore asked which teachers he might speak with to dissuade them from continuing their refusals to escort children to the lunchroom, he was told by Garrow that the entire teaching staff had become involved. Moore returned to his office, directed the Curriculum Director to attend the lunch hour that day at Manchester/Arlington to observe the actual conditions, and met in his office with Vice Principal Hamlyn. Hamlyn requested that Moore do something to resolve the matter. The Curriculum Director's recapitu- lation of lunch time conditions at the school included a report that one classroom had been overlooked for approximately fifteen minutes. This classroom, located at the rear of the school, was missed by Garrow and Hamlyn in the process of releasing the classrooms to lunch. After Hamlyn left, Moore called the Committee's attorney for legal advice concerning procedures to employ to persuade the Association to call off the "job action." The Committee's attorney contacted MTA Representative George Luse to request his intervention with the teachers. The Committee's attorney wrote Luse on February 10, 1987, to con- firm the conversation of the ninth. The letter states: The Superintendent has directed the teachers to continue to see to the safety of the children by escorting them to the cafeteria as has always been done in the past. This directive, however, is not being followed. The school administration will be required to take imme- diate action to safeguard the children. I am hopeful, -14- however, that you might be able to persuade the WEA teachers not to leave the children unsupervised and to escort them safely to the cafeteria as they always have. As you know, it is not for the teachers to decide when a duty-free lunch is to be scheduled; teachers have their contractual grievance procedures to protect them from any deviation from contract terms by the administration. The Association conducted a secret ballot ratification vote on February 10, 1987, at which time the contract was formally rejected by a vote of 157 to six. On Wednesday afternoons K-6 students are sent home. In their absence teachers have, for years, engaged in planning work, committee work or curriculum matters. A large portion of such Wednesday after- noon activity is devoted to accreditation work performed by teachers in small committees and aimed at developing reports concerning curri- culum, staffing patterns and community relations. These reports, which are reviewed by an outside agency, are used by the Committee to satisfy the needs assessment portion of the School Improvement Plan required by educational reform legislation. This accreditation work was curtailed by teachers as part of their "job action." The fourth period on Wednesdays is an activities period at Windham Junior High School. Although some previous activities periods had been cancelled in hope that pending negotiations would result in an agreement, resumption of the conduct of activities periods com- mencing with that scheduled for February 11, 1987, was announced to teachers by Principal Shortsleeve on Monday, February 9. In support of the Association's "job action" six Junior High School teachers refrained from performing their scheduled activities on February 11. The Junior High School handbook contains the following language con- cerning the activities period: Activity period is an extension of the junior high curricu- lum. It is in keeping with the general philosophy and con- cept of the junior high/middle school program. The purpose is to provide exposure and new experiences to as many stu- dents as possible. All teachers will be involved in offering activities throughout the school year. The parties' 1983-1986 agreement, in Article 11 entitled Professional Development and Educational Improvement, contains the -15- following language regarding attendance at meetings: Teachers will attend all meetings as required by any of their supervisors and/or the Committee unless excused by their principal or supervisor. This same Article contains the following language pertinent to Committee policies, rules and regulations: Teachers will adhere fully and promptly to all School Committee policies and administrative rules and regulations when they have been provided in writing. The Committee's Manchester/Arlington policy handbook contains the following language, regarding the supervision of students, designated as "Regulation 7216": SUPERVISION (PLAYGROUND; CLASSROOM; INSIDE RECESS; LATE BUS; etc.) We must be sure students are not left unsupervised or inadequately supervised at any time. These points will be discussed at length with the noon aides, however, when you are assigned to be responsible, such as morning inside recess, outside recesses, and other specific times, be sure you are on duty PROMPTLY and REMAIN throughout the designated period. There is no evidence establishing that any such policy was "provided in writing" to the Manchester/Arlington teachers as is contemplated by the parties' agreement. At least one teacher at Manchester who has seen the handbook did not notice the school policy on supervision. She had, however, been notified by school officials that children should not be left unsupervised. On Wednesday, February 11, Moore went to the Manchester/Arlington School for the purpose of making a personal appeal to the faculty for the resumption of lunch time escort duties. At a 1:00 p.m. faculty meeting Moore asked, then ordered, the teachers to resume the escorting of students en route to lunch. At this meeting Moore informed the teachers that if they did not resume the requested duties he would suspend classes at the school, issue letters of reprimand and suspend pay during the closure. Moore also advised the teachers that he was contemplating initiating injunction proceedings to compel the -16- escorting of students en route to lunch. Moore was uncertain on leaving whether the teachers would comply. The teachers remained after the meeting to caucus. The result of this caucus was a decision by the teachers that beginning on February 12, 1987, they would line their children up in the hall at lunch time. On Thursday, February 12, 1987, Moore was supplied with a memorandum, received by Garrow, in which the Association announced: In accordance with K-3 procedure, beginning Thursday, February 12th, the following procedure will be followed: At 11:30 AM, Grades 5 & 6 will be lined up by teachers in the hall, on the fifth grade side of the building. Aides who are on duty will escort the children to the lunchroom, under administrative direction. At 12:00 PM, the same procedure will take place with the 4th grade, on the fourth grade side of the building. Moore informed members of the Committee that he was on the brink of meting out the disciplinary measures referred to above, which he had previously told them he would implement if circumstances demanded. Moore then called Garrow and asked to be kept informed of conditions during that day's lunch period. On February 12, in the Arlington School, as had been the case throughout the "job action," the teachers stayed in the hallways with the students until their escorts arrived. On the other hand, at the Manchester School, due to the change in tac- tics, the teachers began lining up their children in the hallways where, in many cases, the children were left unattended. Shortly after the lunch period began, Garrow called Moore and informed him that students were being lined up and then left in the hallways out- side their classrooms by the majority of Manchester teachers. Garrow also advised Moore that the behavior of students had improved somewhat possibly due to the novelty of this procedure. Committeewoman Donna Aldritch was at the Manchester/Arlington School and assisted in the escort and supervision of students. Moore conferred with the Committee's attorney and a fellow administrator and then drafted and distributed a letter to the Manchester/Arlington faculty. That letter apprised teachers of his knowledge of the institution of the line-up procedure announced in the -17- Association's February 11, 1987 memorandum and stated: As you were told yesterday, letters of reprimand will be prepared and placed in your personnel folders in the manner prescribed by school department procedures. Also, as you were told would be the case, classes at Manchester/Arlington School will be suspended effective at the close of school today, February 12, 1987. Appropriate reductions in your pay will be made for the days which school is not held. It is important for you to consider as well, that the willful failure of a teacher to provide adequate supervision may well expose the teacher to unlimited personal liability in the event of a student injury. Moore had the Committee informed of his actions and, at approximately 1:15 P.M., drafted and delivered to students the following note addressed to the "Parents of Manchester/Arlington Students": Classes at the Manchester/Arlington school have been suspended as of the close of school today, 2/12/87. The reason for this action is the refusal of the teaching staff to provide adequate and safe student supervision. Be assured that we will work diligently to resolve this matter as swiftly as possible. School buses were detained slightly to permit the distribution of the notices. Moore also advised local radio and TV stations of the school closing. At no time prior to the closing did Moore permanently engage additional employees to assist with the escort of children en route to lunch. There were no classes scheduled during the winter break, February 16 through 20, 1987. At a regular meeting attended by 250 members of the public the Committee unanimously decided, without formal vote, to reopen the Manchester/Arlington School on Monday, February 23, 1987. Moore engaged two staff members to assist with supervision during the closure on February 13. Additionally, in order to guarantee the opening of school Moore hired substitutes, arranged for the use of volunteers including parents, and assigned two central office employees (the Special Education and Curriculum directors) to noon-time supervisory duties commencing with the opening of school on February 23. The cost attributable to the provision of supervisory services by additional staffing was $373.55. -18- On the resumption of classes on February 23, 1987, Moore received a short memorandum from Leighton which stated, "Effective Monday, February 23, 1987, the Windham Educators' Association members will resume all duties." Leighton delivered the note on Monday, February 23, 1987. This notice constituted the first mention of the teachers' resumption of the duties at issue. The Association promulgated a memorandum to its members dated February 23, 1987, which stated: Effective today, WEA members will resume duties as directed by Supt. Gary Moore in his letters to faculty dated January 15 and 16, 1987: K-2 Staff - escorting children to and from the cafeteria attend staff meetings attend accredidation [sic] meetings Manchester-Arlington Staff escorting children to and from the cafeteria attend staff meetings attend accredidation [sic] meetings Junior and Senior high Staff conduct activities during the activity period attend staff meetings attend accredidation [sic] meetings We will not resume the sponsoring of club and volunteer activities for which their [sic] is no contractual obli- gation. As indicated in the accompanying press release concerning the Manchester-Arlington situation, this is a three week suspension to give the community, the Association, the school board, interested parents, and the Maine Labor Relations Board time to resolve the negotiations dispute and related problems. We will evaluate our position periodi- cally to determine whether or not the Superintendaent [sic] is willing or not to resolve the problems. We find that there were no injuries to students as a result of failure of supervision during the entire "job action," and that neither the Association nor the teachers themselves ever filed a grievance concerning the escorting of children en route to lunch. It is unclear whether the pay of any teacher at Manchester/Arlington was reduced as a result of the suspension of classes which would have been conducted on February 13, 1987. Although Windham school teachers are on salary and are not paid hourly wages, teachers have traditionally been docked pay for unexcused absences. If the Manchester/Arlington teachers are required to make up the day of classes they missed due to the closure, -19- they will be paid for the make-up day. They will be required to make up that day, however, only if the three snow days built into the calendar are exhausted. DISCUSSION As is more fully explained below, we find (1) that certain aspects of the Association's "job action" constitute both an unlawful work stoppage and an improper negotiating tactic prohibited by the Municipal Public Employees Labor Relations Law and (2) that the actions of the Committee complained of by the Association do not constitute prohibited practices proscribed by that Law. We shall first discuss the Committee's contentions that the teachers' concerted "job action" constitutes an unlawful work stoppage and a refusal to bargain. The illegal "job actions" are alleged to include failures or refusals by teachers to attend meetings called by their supervisors, to escort children en route to lunch, to conduct Wednesday afternoon activities periods, to conduct or permit pro- fessional observations by other school systems, and to engage in accreditation activities. The duty of teachers to "attend all meetings as required by any of their supervisors and/or the Committee" is established by Article 11 of the parties' agreement, entitled Professional Development and Educational Improvement. The right of the Committee to compel the attendance of teachers at meetings required pursuant to this contrac- tual provision survived the expiration of their agreement and was in effect at the time of the "job actions." As we said in Teamsters Local Union No. 48 v. Boothbay/Boothbay Harbor Community School District, No. 86-02, slip op. at 11 (Me.L.R.B. Mar. 18, 1986): During the interval between the expiration of a collective bargaining agreement and the execution of a successor agreement, the "static status quo" must be maintained. Upon the expiration of a collective bargaining agreement, the wages, hours, working conditions, and contract grievance procedure established in the expired agreement must remain in effect until they are superseded by the successor agreement. Sanford Fire Fighters Ass'n v. Sanford Fire Commission, MLRB No. 79-62, slip op., at 10 (Dec. 5, 1979); Easton Teachers Ass'n v. Easton School Committee, MLRB No. 79-14, slip op., at 5 (Mar. 13, 1979). -20- We find nothing in the record that would justify the Association's unilateral curtailment of this duty of teachers. To the extent that any teacher had refused to attend any meetings required pursuant to this contractual provision during the "job action," such refusal would constitute an unlawful work stoppage within the meaning of 26 M.R.S.A. 964(2)(C)(1) (1974). However, the record contains no evi- dence establishing that any teacher failed to attend any meeting called pursuant to this contractual provision. We see merit in the contention of the Committee that unless otherwise contractually permitted, teachers may not, even with ade- quate notice, unilaterally cease the long-standing performance of "traditional" teaching duties, even though those duties are not expressly required by the terms of an applicable collective bargaining agreement.[fn]2 Such an application of the principle of "past practice" would promote the improvement of the employment relationship by incor- porating those aspects of the parties' employment obligations that have been traditionally and tacitly performed into the terms of the parties' written collective bargaining agreement. See Coulombe v. City of South Portland, No. 86-11 (Me.L.R.B. Dec. 29, 1986); Lenox Education Association v. Labor Relations Commission, 471 N.E.2d 81 (Mass. 1984). We need not decide in this case, however, whether escorting children en route to lunch, participation in Wednesday afternoon activities periods and participation in accreditation periods are traditional activities engaged in by Windham teachers generally, or whether they are, instead, unique to and voluntary on the part of those teachers who have unilaterally refused to perform them. Such an inquiry might be necessary if those activities were mandatorily negotiable. That inquiry is not required in this case because those activities do not constitute mandatorily negotiable subjects of bargaining. We have previously held that "questions as to when [a] duty free lunch should occur involve educational policy." M.S.A.D. No. 43 _________________________ 2 The terms of a collective bargaining agreement concerning man- datory subjects are applicable both during the term of an executed agreement and, unless otherwise agreed, after contract expiration as part of the static status quo. -21- Board of Directors v. M.S.A.D. No. 43 Teachers Association, Nos. 79-36, -39, -45, and -47, slip op. at 14-15 (Me.L.R.B. Aug. 24, 1979). Moreover, it is equally well established that "duties relating to the attendance of teachers at school at times when students will be in attendance are matters of educational policy and intended to remain outside the scope of mandatory collective bargaining." Ingerson v. Millinocket School Committee, No. 77-39, slip op. at 4 (Me.L.R.B. Oct. 19, 1977). In Peru Teachers Association and Peru School Committee, Interpretative Ruling (Me.L.R.B. July 10, 1978) reviewing the negotiability of proposed contractual provisions concerning the "supervision of school buildings and playgrounds during recess and daily lunch periods" we stated, at page 3: We believe that our interpretative ruling on the clause in the contract provision concerning teacher supervision of school buildings and playgrounds during recess and lunch periods is governed by our holding in Bradford Ingerson and Millinocket Education Ass'n, supra. As was the case in Bradford Ingerson and Millinocket Education Ass'n, we believe that a substantial "managerial" consideration - over and above encroachment upon managerial supervision, organi- zation, direction and distribution of personnel - is involved in the question of teacher supervision of students. This consideration is the necessity that school districts and towns take all possible steps to avoid both civil lia- bility for injuries to students as well as damage to school buildings and equipment while the students are present at school. We believe that the qualitative importance of this consideration overrides the prima facie eligibility for collective bargaining of questions concerning teacher super- ision of school buildings and playgrounds while students are in attendance. Consequently, we interpretatively rule that the clause "supervision of school buildings and play- grounds during recess and daily lunch periods" involves a matter of educational policy which, under 26 M.R.S.A. 965 (1)(C), remains outside the scope of mandatory collective bargaining We do not, however, find any similar substantial intru- sions into policy areas associated with the assignments described in the remaining contractual language. Unlike the supervising of students, tasks involving menial, administra- tive duties such as collecting milk and lunch money or distributing milk and lunch to students do not, we believe, involve any managerial functions significant enough to over- ride the prima facie eligibility of these duties for collec- tive bargaining. Although these tasks may encroach somewhat upon managerial organization, supervision, direction or distribution of working personnel, such encroachment by -22- itself clearly is not sufficient to negate collective bargaining on these matters. We accordingly interpreta- tively rule that the contractual clause "collecting of milk and lunch money, distribution of milk and lunch" involves a "working condition" of teachers about which the public employer is obligated to negotiate, should the public employer desire that such duties be performed by teachers. We believe that a contrary ruling could, in Justice Wernick's words in City of Biddeford, supra, "transform teacher collective bargaining . . . into a litany noble in sound but hollow in reality" (304 A.2d at 419). We find that in matters involving the supervision of students during the school day, qualitative and quantitative educational policy con- siderations are of a magnitude sufficient to negate any otherwise negotiable teacher interests. While it is true that the contract provides for a duty-free lunch, the question of when that duty-free lunch will be observed is a matter within the educational policy discretion of the Committee. See M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers Association, Nos. 79-36, -39, -45, and -47, slip op. at 14 (Me.L.R.B. Aug. 24, 1979). Therefore, regardless of the nature of the rights and responsibilities of the parties which existed prior to January 16, 1987, there can be no doubt that upon the direction of the Superintendent that teachers resume their practice of escorting stu- dents en route to lunch the teachers were obliged to comply. Any redress for infringement of such a directive upon the full duty-free lunch granted in the parties' agreement appears to have been cogni- zable under the Grievance Procedure Article of the parties' agreement. The Association's use of "self help" to determine when the contractual duty-free lunch would occur constitutes an unlawful "work stoppage" within the meaning of 26 M.R.S.A. 964(2)(C)(1) (1974). See Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980). The Association presented no evidence concerning the Committee's allegation that a number of teachers refused in concert to participate in a scheduled Wednesday afternoon activities period, in violation of the directives of both the Junior High School Principal and the Superintendent. The Committee adduced evidence that these activities periods, conducted during the fourth period of the normal school day on Wednesdays, constituted part of the academic curriculum of Junior -23- High School students. We find that the directives of the Principal and Superintendent in this regard involved matters of educational policy and that the teachers were obligated to comply therewith. Their refusal constitutes an unlawful work stoppage within the meaning of 26 M.R.S.A. 964(2)(C)(1) (1974). There is no evidence that any professional observation sessions involving other school systems were missed and no evidence that the Association requested the Committee "meet and consult" concerning any of the education policies directives of the Superintendent. There is also no allegation or evidence that the teachers actually ceased "all committee work during and after school," as threatened in the Association's January 14 and 16 letters. The evidence does establish that for some time prior to the "job action" groups of elementary teachers engaged in work on accreditation matters involving "needs assessment" for the Windham School Department. The Committee has pro- vided time for teachers to devote to these accreditation matters through early release of students on Wednesday afternoons. The record establishes that as a result of the "job action" work on accreditation matters was halted by the teachers. We find that the teachers' actions in this regard constitute an unlawful work stoppage. Windham's teachers are peculiarly qualified to participate in the assessment of their school's curriculum, staffing and community rela- tions. Their extensive personal contact with parents and other mem- bers of the community, their perceptions concerning the depth and breadth of learning inspired in each student by previous educators and their direct experience with teaching techniques make them the most valid and reliable source of "needs assessment" available to the Committee. We conclude that their participation in such matters is so indispensable for the formulation of educational policy that the question whether teachers shall participate therein must be classified as a matter of educational policy not subject to mandatory collective bargaining. We have previously held that the refusal of a teacher to par- ticipate, as requested, in the planning for a new kindergarten program constitutes a "blatant violation" of 26 M.R.S.A. 964(2)(C) (1974). -24- See Southern Aroostook Teachers Association v. Southern Aroostook Community School Committee, Nos. 80-35 and 80-40 (Me.L.R.B. Apr. 14, 1982). In Southern Aroostook, at page 27, we held that the meet and consult process does not suspend the duty of a teacher "to perform all duties preparatory to implementation of educational policy." After thorough consideration we determine that the participation of teachers in diagnostic activities preparatory to the formulation of educational policy implicate substantial qualitative considerations which, when weighed against the legitimate teacher interests concerned, override any prima facie eligibility of the matter for collective bargaining and binding arbitration. The Committee alleges that the Association's conduct in the instant case constitutes not only a work stoppage within the meaning of 26 M.R.S.A. 964(2)(C)(1) (1974) but also bargaining in bad faith and a refusal to bargain within the meaning of 26 M.R.S.A. 964(2)(B) (1974). The resolution of a bad faith bargaining charge requires that we examine the totality of the charged party's conduct to decide whether the party's actions during the pendency of negotiations indi- cate a present intention to find a basis for a negotiated agreement. See Washburn Teachers Association v. Barnes, No. 83-21 (Me.L.R.B. Aug. 24, 1983); Waterville Teachers Association v. Waterville Board of Education, No. 82-11 (Me.L.R.B. Feb. 4, 1982). The Association employed the unlawful work stoppage for the purpose of coercing the Committee into concluding an agreement it might not otherwise make. Because any agreement resulting from such prohibited tactics cannot reasonably be termed "bargained," use of a work stoppage for such a purpose constitutes bad faith bargaining per se. We turn now to a consideration of the Association's complaint against the Committee, which alleges violations of 26 M.R.S.A. 964(l)(A), (C) and (E) (1974). The gravamen of the Association's complaint of interference, restraint or coercion is that the Committee was retaliating against the Association when it closed the Manchester/ Arlington School and threatened disciplinary measures against the teachers for their participation in allegedly protected activity. The Association has presented insufficient evidence to prove its allega- -25- tion of retaliation by the Committee. While it is true that in cer- tain circumstances evidence of disciplinary measures disproportionate to the harm purportedly sought to be avoided would support an inference that the ostensible justification for the discipline was pretextual, we find no such circumstances present in the instant case. This does not mean that we believe the Superintendent adopted the only possible correct course of action. Rather, we merely determine on the record that his course of action was neither plainly unreasonable nor violative of the Municipal Public Employees Labor Relations Law. Moreover, the mere fact that he closed the Manchester/Arlington School two days after the February 10, 1987 contract rejection is insufficient, without more, to serve as the basis for a finding of pro- hibited practice. See M.S.E.A. v. State Development Office, No. 84-21, slip op. at 9 (Me.L.R.B. July 6, 1984), aff'd, 499 A.2d 165 (Me. 1985). We cannot say that in the totality of the circumstances the Superintendent's actions were so unreasonable as to create an inference of a purpose to retaliate. We find that the Superintendent's letters of January 15 and 16, 1987, and ultimate closure of the Manchester/Arlington School were motivated by the desire first to prevent and later to halt the unlawful "job action" and not by a desire to retaliate against the Association membership for rejecting the tentative agreement or for any other protected activity. Such motivation does not violate any provision of the Municipal Public Employees Labor Relations Law. The Association has euphemistically labeled its activity during the "job action" as "working to rule." However, since "working to rule" would in this case include not only strict compliance with contractual pro- visions but also compliance with the Superintendent's directives con- cerning matters of educational policy, the Association's characteriza- tion is erroneous. The Association's final contention against the Committee is that the Committee's conduct violated 26 M.R.S.A. 964(l)(C) (1974). We have repeatedly noted that that section of the Act "is directed at the evil of too much financial or other support of, encouraging the for- mation of, or actually participating in the affairs of the union and -26- thereby potentially dominating it." AFSCME Council 93 v. Maynard, Nos. 86-22, 86-25 and 86-A-03, slip op. at 14 (Me.L.R.B. Mar. 10, 1987) (quoting Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 13 (Me.L.R.B. Jan. 24, 1986); and Teamsters Local Union No. 48 v. Eastport School Department, No. 85-18, slip op. at 8 (Me.L.R.B. Oct. 10, 1985)). The Association has failed to prove that any agent of the Committee acting on its behalf participated in or otherwise supported the activities of the Association or of any other employee organization. Therefore we find that the Committee did not violate 26 M.R.S.A. 964(1)(C) (1974). Finally, we note that although both the issuance of written reprimands to teachers involved in the "job actions" and the with- holding of one day of pay was seriously contemplated by the Committee, as of the date of the hearing it was unclear whether either of these actions had occurred. Accordingly, we make no decision as to the propriety of either of these actions and do not intend for this order to operate to bar any action before the courts, under the contract's terms, or otherwise, which the Association may desire to institute based upon the imposition of either disciplinary action. Any disciplinary action must comply of course with the appropriate consti- tutional and statutory provisions and the provisions of the parties' collective bargaining agreement. 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. 968(5)(C) (1974), it is hereby ORDERED: 1. That the Windham Teachers Association and its members cease and desist from refusing to comply with adminis- trative directives (1) to escort children en route to lunch, (2) to participate in Wednesday afternoon activi- ties periods and (3) to participate in accreditation -27- activities, in violation of 26 M.R.S.A. 964(2)(C)(1) (1974). 2. That the Windham Teachers Association and its members cease and desist from failing or refusing to bargain in good faith with the Committee as required by 26 M.R.S.A. 965(1)(C) (Pamph. 1986), in violation of 26 M.R.S.A. 964(2)(B) (1974), by employing unlawful work stoppages in an effort to coerce the Committee in negotiations. 3. That the Windham Teachers Association pay to the Windham School Committee the sum of $373.55 to reimburse the Committee for the personnel expenses incurred by the Committee during the "job action." 4. That all other allegations of Prohibited Practices by the parties, alleged in the Complaints of the Committee and the Association that are not specifically addressed in paragraphs one and two above be and hereby are DISMISSED. Dated at Augusta, Maine, this 17th day of April, 1987. MAINE LABOR RELATIONS BOARD /s/_____________________________ The parties are advised Edward S. Godfrey of their right pursuant Chairman to 26 M.R.S.A. 968(5)(F) (Pamph. 1986) to seek review of this decision and order by the Superior Court by /s/_____________________________ filing a complaint in Thacher E. Turner accordance with Rule 80B Employer Representative of the Rules of Civil Procedure within 15 days of the date of this decision. /s/_____________________________ George W. Lambertson Employee Representative -28-