Supreme Judicial Court of Maine
Docket: Law-81-457
Argued: May 11, 1982
Decided: July 14, 1982
EMILY B. LANE
v.
BOARD OF DIRECTORS OF MAINE
SCHOOL ADMINISTRATIVE
DISTRICT NO. 8, et al.
Before MCKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, CARTER, and
VIOLETTE, JJ.
ROBERTS, Justice
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This appeal involves the question of whether Emily Lane is entitled,
pursuant to either 20 M.R.S.A. 161(5) or her contract with the school
district, to a hearing prior to the non-renewal of her teaching contract.
Lane appeals from the judgment of the Superior Court that denied the
relief sought in her complaint against the Board of Directors and the
Superintendent of M.S.A.D. No. 8 for their failure to grant Lane's
hearing request. We affirm the judgment of the Superior Court.
Lane was employed as a teacher for M.S.A.D. No. 8 for two distinct
periods. She worked as a remedial reading teacher, pursuant to one-year
contracts, during the 1971-1972 and 1972-1973 school years. In the
summer of 1973, the plaintiff resigned from her teaching position. Upon
reapplying for a teaching post in August 1979, Lane was hired as a social
studies teacher. She worked under one-year contracts during the
1979-1980 and 1980-1981 school years. All four contracts were entitled
"Probationary Teacher's Employment Contract."
In February 1981, the Superintendent notified Lane that he did not
plan to nominate her for employment for the next school year and that
consequently her employment would terminate on the expiration date of her
contract, August 31, 1981. Following this notice of non-renewal, Lane
wrote to the School Board in March 1981 seeking a hearing in accordance
with 20 M.R.S.A. 161(5) and her contract rights.
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The Board rejected the request on the basis of the Superintendent's
recommendation. That recommendation stated that as a probationary
teacher Lane "is not entitled to a hearing under the collective
bargaining agreement because the . . . agreement expired . . . in August,
1980." The recommendation also stated that Article VI(A)(5) of the
agreement is invalid because it is in direct conflict with the statutory
authority of the Superintendent under 20 M.R.S.A. 161(5) and because it
involves matters of non-negotiable educational policy.
Lane then filed a four-claim complaint in Superior Court asserting,
inter alia, that Lane was entitled to a hearing under 20 M.R.S.A.
161(5) and that the refusal to give her a hearing constituted "a breach
of plaintiff's individual employment contract and the collective
bargaining agreement." The Superior Court, on plaintiff's motion for
summary judgment and following the submission of affidavits by both
parties, ruled against Lane on both legal theories and entered judgment
for the defendants.
I.
We turn first to Lane's contention that, under section 161(5), a
teacher, after two non-consecutive years of service, is entitled to
continuing contract status and therefore to a hearing if any subsequent
contract is not renewed. The statute in question provides in pertinent
part:
After a probationary period of not to exceed 2 years, subsequent
contracts of duly certified teachers shall be not for less than 2
years . . . . After a probationary period of 2 years, any teacher,
who received notice in accordance with this section that his
contract is not going to be renewed, may during the 15 days
following such notification request a hearing with the school
committee or governing board.
20 M.R.S.A. 161(5) (1965 to 1981 Supp.). The Superior Court read this
language as requiring that the probationary period be served in
consecutive years. Since Lane had yet to complete the requisite years of
consecutive service prior to receiving notice that the Superintendent did
not plan to renew her contract, the trial court concluded that Lane was
not entitled to a hearing.[fn]1
Lane contends that the Superior Court's interpretation is in error
because the statute's express limitation on the duration of a
probationary period and its silence on the requirement that the period be
served in consecutive years requires a finding that after service of any
two years a teacher must, if retained, receive a continuing contract and
the accompanying hearing right. We cannot adopt such an analysis of the
statute.
The purpose of the probationary period is to allow for a length
of time "during which [a teacher's] ability to perform satisfactorily is
tested." Chassie v. Directors of School Administrative District No. 36,
Me., 356 A.2d 708, 710 (1976). It aids the school authorities in
carrying out their statutory duty of maintaining the quality of the
school system. See Board of Directors of Maine School Administrative
District No. 36 v. Maine School Administrative District No. 36 Teachers
Association, Me., 428 A.2d 419, 422-23 (1981); Benson v. Inhabitants of
Newfield, 136 Me. 23, 26-27, 1 A.2d 227, 229 (1938). In the instant
case, Lane voluntarily left her teaching position in 1973 for personal
reasons, returned after a lapse of five years to teach a different
subject matter at a different grade level and accepted a probationary
teacher's contract. Given these circumstances and the statutory purpose,
we find that the Superior Court did not err in concluding that Lane was
not entitled to a hearing under section 161(5).
We need not address and intimate no opinion on Lane's arguments that
a school could voluntarily grant a continuing contract or that a teacher
could otherwise acquire a hearing right in less than two consecutive
probationary years.
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1. The plaintiff did not complete her probationary period in 1973
because, at that time, section 161(5) required a three-year probationary
period. See 20 M.R.S.A. 161(5) (1965).
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II.
Lane next contends that she has a contractual right to a hearing
under the terms of either the collective bargaining agreement or her
individual teaching contract. Lane suggests, first that the terms of the
collective bargaining agreement were incorporated by reference into her
individual teaching contract and thus the hearing provision survived the
expiration of the collective bargaining agreement. Second, she urges
that the School Board could not make unilateral changes in the terms and
conditions of the collective bargaining agreement; therefore, her
contractual rights under the collective bargaining agreement continue
despite the expiration of the agreement.
Lane asserts that the Superior Court found that the collective
bargaining agreement was incorporated by reference into the individual
teacher's contract but that it erred in its conclusion that this
incorporation ceased at the time of the expiration of the collective
bargaining agreement. We do not glean such a finding from the written
decision of the trial court. The court merely concluded that since the
collective bargaining agreement expired before the commencement of Lane's
services under the individual contract, the plaintiff had no hearing
right under the individual contract. The court then went on to examine
whether Lane had any rights solely by virtue of the collective bargaining
agreement.
We read the Superior Court's decision as concluding that no
individual contract right by incorporation ever existed because the
operative date of the individual contract was later than the express
expiration date of the collective bargaining agreement. Moreover, the
individual contract contains no express reference to or incorporation of
the collective bargaining agreement. Lane's contract for the 1980-1981
school year provides that the contract was "subject to the statutes of
the State of Maine and the rules and regulations of the School
Director." It also provides that "salary may change when 80-81 Budget is
approved and after final negotiations." The contract contains no
reference to a hearing provision. Given the express operative dates as
to the expiration of the collective bargaining agreement and the
commencement of individual services, the lack of any reference to the
collective bargaining agreement other than the oblique reference to
salaries and the lack of any other evidentiary facts suggesting
incorporation, we cannot conclude that the Superior Court erred in its
finding that the individual contract did not incorporate any right to a
hearing upon non-renewal of the probationary contract. See M.S.A.D.
No. 43 Teachers' Association v. M.S.A.D. No. 43 Board of Directors, Me.,
432 A.2d 395, 397-98 (1981); cf. Local 1574, International Association
of Machinists and Aerospace Workers v. Gulf & Western Manufacturing Co.,
417 F. Supp. 191, 198 (D. Me. 1976) (incorporation of pension plan into
collective bargaining agreement).
After concluding that no hearing right existed within the terms of
the individual contract, the Superior Court then examined whether a
hearing right contained in the collective bargaining agreement survived
the expiration of that agreement. Concluding that the hearing provision
was a lawful albeit permissive subject of bargaining, the court
determined that as a permissive subject, the hearing provision did not
survive the expiration of the collective bargaining agreement. We need
not reach the question of whether the provision in question is lawful or
whether it is a mandatory or permissive subject of collective bargaining
because we find that unilateral alteration of the terms of a collective
bargaining agreement after the expiration of that agreement does not
result, under the circumstances of this case, in a breach of contract.
It is a well-established rule of labor law that an employer may not
unilaterally alter the terms and conditions of employment after the
expiration of a collective
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bargaining agreement.[fn]2 See, e.g., NLRB v. Haberman Construction
Co., 618 F.2d 288, 302-303 (5th Cir. 1980), modified in part on rehearing
en banc, 641 F.2d 351 (1981); Pasco County School Board v.Florida Public
Employees Relations Commission, 353 So.2d 108, 122-123 (Fla. Dist. Ct.
App. 1977); Appeal of Cumberland Valley School District, 483 Pa. 134,
141, 394 A.2d 946, 950-51 (1978); Easton Teachers Association v. Easton
School Committee, MLRB Case No. 79-14 at 3-5 (March 13, 1979). This
rule, however, is not based upon contract law. It is based on the
principle that unilateral alterations of the collective bargaining
agreement are in contravention of the statutory duty to bargain in good
faith. See, e.g., NLRB v. Katz, 369 U.S. 736, 742-743, 8 L. Ed. 2d 230,
236, 82 S. Ct. 1107 (1962); Easton Teachers Association v. Easton School
Committee, MLRB No. 79-14 at 3-5 (March 13, 1979). Unilateral changes
have also been viewed as violative of the statutory proscription against
interfering with the exercise of collective bargaining rights. Appeal of
Cumberland Valley School District, 483 Pa. at 139, 394 A.2d at 949. But
see Appeal of Cumberland Valley School District, 483 Pa. at 147-48,
394 A.2d at 953-54 (Pomeroy, J. concurring). Accordingly, when an
employer initiates a unilateral change in violation of his statutory
responsibilities, he commits an unfair labor practice. That action,
however, does not necessarily result in a breach of contract. Cf.
Milwaukee Typographical Union No. 23 v. Madison Newspapers, Inc., 444 F.
Supp. 1223, 1227 (W.D. Wis. 1978) (court without jurisdiction to hear
claim based on violation of expired contract because court can only hear
contract claims; violation may be unfair labor practice cognizable by
NLRB), aff'd without opinion, 622 F.2d 590 (7th Cir. 1980); accord
International Union, United Automobile, Aerospace & Agricultural
Implement Workers v. Atlas Tack Co., 590 F.2d 384, 386 (1st Cir. 1979);
Rae v. United Parcel Service, 356 F. Supp. 465, 467-68 (E.D. Pa. 1973).
In the instant case, Lane does not contend that the school
authorities committed a prohibited labor practice under 26 M.R.S.A.
964. Rather, she asserts that the collective bargaining agreement was
breached. However, no contract was in existence at the time of the
defendants' notification of non-renewal and refusal to grant a hearing.
Inasmuch as Lane has limited her claim to that of breach of contract and
no contract exists in the instant case, we hold that the Superior Court
judgment for the defendant was not in error. We express no opinion on
the questions of whether the hearing provision of the collective
bargaining agreement was lawful or whether the term is a mandatory or
permissive item of collective bargaining.
The entry is:
Judgment affirmed.
All concurring.
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2. Three generally recognized exceptions to this rule are (1) where
bargaining has reached an impasse, (2) where the union has waived its
right to insist on bargaining over the alteration and (3) where the
change is required by law. See Easton Teachers Association v. Easton
School Committee, MLRB No. 79-14 at 5 (March 13, 1979); Note, Application
of the Mandatory-Permissive Dichotomy to the Duty to Bargain and
Unilateral Action: A Review and Reevaluation, 15 William and Mary L. Rev.
910, 932 (1973-1974).
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