From last time:
26 MRSA §965: Obligation to bargain
1. Negotiations. It is the obligation of the public employer and the bargaining agent to bargain collectively. “Collective bargaining” means, for the purposes of this chapter, their mutual obligation:
C. 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 may 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 may not include wages, hours, working conditions or contract grievance arbitration; (emphasis added)
- What constitutes “educational policies” for the purposes of this law?
- Why are they treated differently from “wages, hours, working conditions and contract grievance arbitration”?
- What does it mean to “negotiate”?
- How does “negotiate” differ from “meet and consult”?
The Legislature enacted 26 MRSA 965 in 1969, but chose not to include a definition of “educational policies”. Maybe they thought it was obvious; maybe they just didn’t think it would be a problem; maybe they didn’t want to get bogged down. In any event, if there are questions about what a law means, it is ultimately a matter for courts to decide. In this situation, the questions about collective bargaining for Maine’s teachers started being asked pretty quickly.
Consider what it must have been like in 1970 Westbrook or Jackman or Mars Hill as school boards and newly-formed local teachers’ Associations were sitting down at the bargaining table to hammer out their very first collective bargaining agreements. There was no fax, no email, no cell phones. Computers were big machines sitting in University building basements into which hand-punched cards had to be fed. Everything the parties did had to be face-to-face, or by phone, or by mail. So, in order to get a contract settled, many Boards/Associations just included everything and anything in order to get the process over with.
Others were more cautious: What should they include in the document? What couldn’t they? Obviously each side had opinions, some strong and others not so strong.
Each Association/School Board negotiations was taking place in a conference room, probably in the evening, all by itself. Ultimately, each final document wound up looking just a bit (or maybe even a great deal) different from the template where it started. Some Boards agreed with the local Association that teacher evaluation procedures should be part of the new contract; some didn’t because appraising the work of employees is a “management right”.
Some looked to other states that have had collective bargaining for a while and thought, “Well, they talk about class sizes, so we probably should, too.”
After a few years, some Boards and Associations had already come to loggerheads over certain topics and asked the judicial system to step in. The first such case to reach the Maine Supreme Court came a mere 3 years after the law passed (and, remember, it had to get through several contract resolution processes and the lower courts first!)
In the City of Biddeford Board of Education v. Biddeford Teachers Association (1973), the Maine Supreme Court looked at many different issues, including a great many technical ones, but came down to a few basic points as far as which topics are suitable for inclusion in collective bargaining agreement and which are not (and what’s in between):
- Some items MUST be negotiated and included in a collective bargaining agreement (Mandatory);
- Some MAY be negotiated/included if the parties agree to do so (Permissive); and
- Some are not allowed at all (Illegal).
According to the Court in Biddeford, some mandatory topics of negotiations included:
- Attendance of teachers at time(s) students are not present
- Non-teaching duties
- Sick Leave Bank
Topics that were illegal to negotiate (and/or include in collective bargaining agreements) were:
- Scheduling of school vacations, beginning and ending of school year when students are involved.
- Length of work day/work year
- Class size
Biddeford was just the start of a parade of cases that discuss and decide the differences between “working conditions” and “educational policies” under Maine law. We’re just getting started.
Next time: More on “educational policies”