STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 80-28 and 80-32 _____________________________ ) CASE NO. 80-28 ) ) ) UNION RIVER VALLEY TEACHERS ) ASSOCIATION, ) ) Complainant, ) ) v. ) ) TRENTON SCHOOL COMMITTEE, ) ) Respondent. ) ) _____________________________) DECISION AND ORDER ) CASE NO. 80-32 ) ) ) TRENTON SCHOOL COMMITTEE, ) ) Complainant, ) ) v. ) ) UNION RIVER VALLEY TEACHERS ) ASSOCIATION, ) ) Respondent. ) _____________________________) On February 20, 1980, the Union River Valley Teachers Association (the "Association") filed pursuant to 26 M.R.S.A. 968(5)(B) a prohibited practice complaint against the Trenton School Committee (the "School Committee"). The School Committee filed a response to the complaint on March 3, 1980. On March 5, 1980, the School Committee filed a prohibited practice complaint against the Association. The Association responded to the complaint on March 13, 1980. At a pre-hearing conference held March 17, 1980, Alternate Chairman Donald Webber presiding, the two cases were consolidated for hearing. As a result of the pre-hearing conference, Alternate Chairman Webber issued on March 21, 1980 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the cases was held April 18, 1980, Alternate Chairman Gary F. Thorne presiding, with Employer Representative Don R. Zienenbein and Alternate Employee Representative Harald S. Noddin. The Association was represented by Milton R. Wright, and the School Committee by Dale D. Higgins. At the close of the hearing the Board proceeded to deliberate over the cases. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations Board in these cases, and we conclude that the Board has jurisdic- tion to hear the cases and render a decision as provided in 26 M.R.S.A. 968(5)(C). -1- ______________________________________________________________________________ FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. The Association is the recognized bargaining agent for the teachers employed by the School Committee. The School Com- mittee is a public employer as defined in 26 M.R.S.A. 962(7). 2. In August, 1979, the Association and the School Committee commenced negotiations for a collective bargaining agreement for the Trenton Teachers. This agreement was to succeed a contract due to expire on August 31, 1979. Christine Kirk- land was the chief negotiator for the Association, while Superintendent of Schools Dale Higgins was the chief negotia- tor for the School Committee at the August and September bar- gaining sessions. In November, 1979, Assistant Superintendent of Schools Joseph White became the School Committee's negotiator. Bargaining sessions were held on August 1, August 27, September 13, November 5, November 15, December 18, January 2, and Jan- uary 28 and 29, 1980 (with a mediator). A fact finding hearing was held on March 7, 1980. 3. By November 15th, the following four areas of the successor agreement remained unresolved: salary scale, just cause for dismissal or discipline, duty-free lunch periods, and contract duration. White told Kirkland during the November 15th bargain- ing session that he was not authorized to reach tentative agree- ment on the remaining issues, but that he would take the issues to the School Committee for the Committee's consideration. The two negotiators signed a statement captioned "Proposed for Tenta- tive Agreement" which set forth the proposed resolution of the four issues. The statement in essence provides that the Asso- ciation would withdraw its just cause and duty-free lunch pro- posals, and would agree to a 3 year contract, in exchange for a salary scale. Negotiations had progressed smoothly up to the November 15th session, with White tentatively agreeing to a number of contract provisions. 4. Kirkland asked White at the December 18th bargaining session whether he had presented the proposed resolution of the remain- ing issues to the School Committee. White responded that he had not yet had the chance to do so, but that he would request that the School Committee hold a special meeting for the purpose of considering the proposal. 5. Subsequently, Kirkland received a note dated December 26, 1979 from White, stating "Touched bases - - - position is as described. Do you want to meet on January 2?" On or about December 28th, Kirkland telephoned White to ask for clarification of the note. Kirkland specifically asked with whom White had "touched bases." White responded that the School Committee's position was that which the Committee held prior to November 15th, and that he had touched bases "with the people who count." Kirkland asked whether the November 15th proposal had been presented to the School Com- mittee. White replied that that was none of the Association's business, and would not provide a clear answer as to whether the proposal had been shown to the School Committee. 6. White had not taken the proposal to the School Committee. White did mention the proposal to Higgins, and also discussed the limits of his authority with the Superintendant. 7. After the January 2nd session, Kirkland decided that no progress was being made, and requested that the Board assign a mediator to the negotiations. A mediator met with the parties from approxi- mately 3:00 p.m. to 7:00 p.m. on January 28th. Near the end of this session, the mediator told the Association negotiators that the session would be ending shortly because White and Higgins had other commitments that evening. The mediator said that White and Higgins had suggested that the parties meet again later that evening, and -2- ______________________________________________________________________________ -2- indicated that the School Committee might be ready to move on the salary scale issue. The Association agreed to meet later in the evening. 8. The second mediation session was held from midnight to slightly after 1:00 a.m. on January 29th. The School Committee presented a proposal which in effect provided, among other things, for a contract of approximately 3-1/2 years duration. The Association rejected this proposal. The Association also presented a pro- posal which was rejected by the School Committee. 9. After the mediation sessions, the Association requested that the Board appoint a panel of fact finders to help resolve the impasse in negotiations. As a result of the fact finding hearing on March 7th, the Association was billed a total of $415.71 for the fact- finders' fees and expenses. 10. Throughout these negotiations, the Association has consistently re- quested that the following "just cause" proposal be included in the agreement: "No teacher shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without just cause. No tenured teacher shall be denied renewal of contract without just cause. Any such action asserted by the [School] Board, or any agent or representative thereof, shall be subject to the griev- ance procedure herein set forth before such action shall be- come final." The School Committee has consistently declined to bargain about inclu- sion of this proposal in the contract, contending that just cause is not a mandatory subject of bargaining. DECISION Case No. 80-28 The Association charges that the School Committee has violated 26 M.R.S.A. 964(1)(E) bv bargaining in bad faith and by refusing to negotiate about the just cause proposal. The School Committee urges that its actions do not constitute a violation of its duty to bargain in good faith. As dis- cussed below, we find that the School Committee has not bargained in good faith, and order remedies necessary to effectuate the policies of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. The School Committee clearly has violated its duty to bargain in good faith because it failed to give White sufficient authority to negotiate tentative agreements on the unresolved issues and because White led the Association's negotiator to believe that the proposed resolution of the issues would be presented to the School Committee. The authority of a party's negotiator is an important element to consider when determining if a party has bargained in good faith. If the negotiator lacks authority to reach even tentative agreements, then bargaining often is a sham since nothing of substance can be accomplished at the bargaining sessions. Moreover, unwarranted delays often result while the "negotiator" transmits the other party's proposals to the decision maker, the decision maker considers the proposals, and then relays its response through its "negotiator" to the other party. A party which engages in this type of procedure is not engaging in collective bargaining as contemplated by 26 M.R.S.A. 965(1). -3- ______________________________________________________________________________ In the present case White by his own admission did not have sufficient authority to reach tentative agreement on the 4 issues which remained unre- solved by the November 15th bargaining session. This lack of authority is evidence that the School Committee was not bargaining in good faith. See, e.g., Westbrook Police Unit v. City of Westbrook, MLRB No. 78-25 at 4-5 (Sept. 5, 1978); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 267 (2nd Cir.), cert. denied, 375 U. S. 834 (1963). This indication of bad faith bargaining is confirmed by the fact that White deliberately misled Kirkland into believing that the negotiators' proposed resolution of the issues would be presented to the School Committee. At the November 15th bargaining session, White told Kirkland that he would take the proposal to the School Committee. When Kirkland inquired on December 18th whether that had been done, White responded that he had not yet had the opportunity to do so, but that he would request a special School Committee meeting for the purpose of considering the proposal. On or about December 28th White told Kirkland that he had "touched bases" with the "people who count," but otherwise was evasive when specifically asked whether the proposal had been shown to the School Committee. Since White never did give the proposal to the School Committee, we believe that his conduct outlined above was a conscious effort to mislead Kirkland and stall negotiations. White's conduct amounts to an intentional attempt to frustrate the Association's efforts to reach agreement on a contract. It is bad enough that a negotiator who did not have authority to reach tentative agreement failed to present the School Committee with the proposal which could have resolved all remaining issues. This fact alone completely blocked bargaining and shows that White had no intention of settling a contract with the Association. But where the negotiator also deliberately misled the opposing negotiators with regard to whether the proposal would be presented to the School Committee, the conclusion is inescapable that the negotiator was acting in extreme bad faith. White's conduct resulted in weeks of unwarranted delay in negotiations, and undermined a bargaining relationship which had prior to November 15th proved to be productive. His acts as the School Committee's bargaining agent are to be considered those of the School Committee. See 26 M.R.S.A. 962(7). White's dilatory, evasive conduct subverted the bargaining process and constitutes a flagrant violation of the duty to bargain in good faith set forth in 26 M.R.S.A. 964(1)(E).[fn]1 _______________ 1 0ther alleged instances of bad faith bargaining cited by the Association are meritless. For example, the record does not show that the School Committee deliberately induced the Association to attend the midnight mediation session on January 28th by falsely suggesting that some progress might be made at this session. The School Committee's proposal for a 3-1/2 year contract, which would exceed the 3 year limit mandated by 26 M.R.S.A. 965(1)(D), was not a violation because the School Committee did not insist that this proposal be accented. -4- ______________________________________________________________________________ White's bad faith bargaining forced the negotiations into fact-finding. The proposed resolution of the issues formulated on November 15th was a reasonable proposal which might have resulted in an agreement had it been given to the School Committee. In particular, the Association agreed to give up its demand for a just cause provision, which had been adamantly opposed by the School Committee, as well as its demand for duty-free lunch periods, and also agreed to a three-year contract, in exchange for a salary scale. White's failure to inform the School Committee about this proposal is a major reason why negotiations reached impasse, necessitating resort to fact findina. We are empowered by 26 M.R.S.A. 968(5)(C) to order an employer that has bargained in bad faith to reimburse the union for its reasonable bargaining expenses. Such reimbursement is necessary to restore the status quo ante when the monies wasted by the union in bargaining are a product of the employer's violation of its obligation to bargain in good faith. See, e.g., Sanford Firefighters Association, Local 1624 v. Sanford Fire Commission, MLRB No. 79-62 at 13-14 (Dec. 5, 1979); J.P. Stevens & Co., 239 NLRB No. 95, 100 LRRM 1052, 1055 (1978); Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980). The Association has proved that it was billed a total of $415.71 as a result of the fact-finding hearing on March 7, 1980. Because this bargaining expense was incurred as a result of the School Committee's bad faith bargaining, we will order among other things that the School Committee reimburse the Association the sum of $415.71, with interest of 12% per annum commencing to accrue ten days after the date of this Decision and Order. This remedy is necessary in order to restore the status quo and to effectuate the policies of the Act. The School Committee also committed a per se violation of Section 964 (1)(E) by consistently refusing throughout negotiations to bargain about the Association's "just cause" proposal. Just cause is a mandatory subject of bargaining under 26 M.R.S.A. 965(1)(C). See, e.g., Cape Elizabeth School Board v. Cape Elizabeth Teachers Association, MLRB No. 79-68 at 3 (Feb. 14, 1980), appeal docketed, No. CV 80-129 (Kennebec County Super. Ct. Feb. 28, 1980). M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36, et al. at 6-9 (Aug. 24, 1979). It is well- settled that a party commits a per se violation of its duty to bargain by refusing to negotiate about a mandatory subject. See, e.g., State of Maine v. Maine Labor Relations Board, Law Court Decision No. 2303 at 9-10 (April 9, 1980); NLRB v. Katz, 369 U.S. 736 (1962). The School Committee's refusal to bargain about the just cause proposal falls squarely within this venerable principle of law. We will order remedies necessary to effectuate the policies of the Act. Case No. 80-32 The School Committee's charge that the Association violated 26 M.R.S.A. 964(2)(B) by insisting to impasse that the just cause proposal be negotiated is meritless. A party can lawfully insist to impasse that a mandatory subject of bargaining be negotiated. See, e.g., M.S.A.D. No. 43 Board of Directors, supra at 12-13; -5- ______________________________________________________________________________ NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958). Since just cause is a mandatory subject, the Association's insistence on negotiating its proposal was lawful. We will dismiss the complaint in Case No. 80-32. ORDER On the basis of the foregoing findings of fact and decision 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), it is ORDERED: 1. That the Trenton School Committee, and its representatives and agents, cease and desist from: a. failing to give its bargaining agent the authority to negotiate tentative agreements with the Association, b. engaging in dilatory and evasive tactics durinq neootiations or otherwise bargaining in bad faith with the Association, and c. refusing to bargain about the Association's "just cause" pro- posal. 2. That the Trenton School Committee and its representatives and agents take the following affirmative actions necessary to effectuate the policies of the Municipal Public Employees Labor Relations Act: a. reimburse the Association the sum of $415.71 for costs incurred during fact finding, with interest of 12% per annum to begin accruing ten days after the date of this Decision and Order, b. bargain with the Association whenever the Association so requests about the just cause proposal and all other mandatory issues which remain unresolved, c. post for a period of 60 consecutive days copies of the attached Notice signed by Superintendent Higgins in all places where notices to the teachers in the bargaining unit customarily are posted, and d. within 30 days of the date of this Decision and Order notify in writing the Maine Labor Relations Board at its offices in Augusta, Maine of the steps it has taken to comply with this Decision and Order. 3. The School Committee's prohibited practices complaint filed March 5, 1980 in Case No. 80-32 is dismissed. Dated at Augusta, Maine, this 30th day of May, 1980. MAINE LABOR RELATIONS BOARD /s/___________________________________ e Gary F. Thorne i mnan Alternate Chairman /s/___________________________________ Don R. Ziegenbein Employer Representative /s/___________________________________ Harold S. Noddin Alternate Employee Representative -6- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE 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 fail to give our bargaining agent the authority to negotiate tentative agreements with the Teachers Association. (2) WE WILL NOT engage in dilatory or evasive tactics during negotiations or otherwise bargain in bad faith with the Teachers Association. (3) WE WILL NOT refuse to bargain about the Teachers Association's "just cause" proposal. (4) WE WILL reimburse the Teachers Association the sum of $415.71 for costs incurred during fact finding, with interest of 12% per annum to beqin accruinq 10 days after the date of the Decision and Order. (5) WE WILL bargain with the Teachers Association whenever the Association so requests about the just cause proposal and all other mandatory subjects of bargaining which remain unresolved. (6) WE WILL within 30 days of the date of the Decision and Order notify in writing the Maine Labor Relations Board at its offices in Augusta, Maine of the steps we have taken to comply with the Decision and Order. TRENTON SCHOOL COMMITTEE Dated __________ By______________________________________ Dale D. Higgins Superintendent 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.