STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 02-09
Issued: July 3, 2002
________________________________
)
MSAD #46 EDUCATION ASSOCIATION/ )
MEA/NEA, )
)
Complainant, )
) DECISION AND ORDER
v. ) ON MOTION TO DISMISS
)
MSAD #46 BOARD OF DIRECTORS, )
)
Respondent. )
________________________________)
This prohibited practice complaint was filed with the Maine
Labor Relations Board ("Board") by the MSAD #46 Education
Association ("Association") on December 21, 2001, alleging that
the MSAD #46 Board of Directors ("School Board" or "Employer")
violated the Municipal Public Employees Labor Relations Law
("Act"), 26 M.R.S.A. 979-C(1)(A) and (E), by making various
statements during the parties' contract negotiations.
The Employer filed a response and a motion to dismiss on
January 24, 2002. The Association was represented by Joseph A.
Stupak, Jr., and the Employer was represented by S. Campbell
Badger, Esq. In reviewing the complaint for sufficiency, the
executive director determined that the factual allegations
concerning actions or statements made prior to June 21, 2001,
were time barred. Thus, the allegations in four of the nine
numbered paragraphs were completely time barred while a fifth
paragraph was partially time barred.
A prehearing conference was conducted by Board Chair
Peter T. Dawson on March 13, 2001, at which the respondent
renewed its motion to dismiss the complaint for failure to state
a claim. The complainant agreed to strike paragraph 8 from the
complaint regarding the substance of a mediation session and did
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not dispute the executive director's conclusion that factual
allegations of actions or statements made prior to June 21, 2001,
could not be the basis of a prohibited practice complaint. The
complainant moved that the Board "summarily find" a violation of
the statute based upon the uncontested facts of the case. The
complainant also requested a stay in the proceedings pending the
filing of a related prohibited practice complaint.
In the Prehearing Conference Memorandum and Order dated
March 13, 2002, the prehearing officer denied the requested stay
in the proceedings and established a schedule for the parties to
brief the Board on the motion to dismiss and the motion to
"summarily find" a violation based upon the uncontested facts.
The briefs were both filed by May 20, 2002. On May 23, 2002, the
complainant requested that the Board reopen the briefing period.
This request was denied on May 30, 2002, by the prehearing
officer. The Board, consisting of Chair Dawson, Employer
Representative Karl Dornish, Jr., and Employee Representative
Wayne W. Whitney, met to deliberate the matter on June 5, 2002.
The facts as alleged in the complaint that are within the
six-month statute of limitations are as follows:
4. [2nd sentence] "[Mr. Arthur Jette] also stated on
June 21, 2001, that the sister unit (referring to the
teachers unit) of the Local Association HAD agreed to
share in the increased costs of the health insurance
premiums, insinuating that the ESP unit was
uncooperative and putting the Association on the
defensive once more."
6. "On June 21, 2001, Mr. Arthur Jette suggested that
the Association bring the current Board proposal to the
Local Association membership for a ratification vote.
The Association responded that it was reprehensible for
the Board to suggest this action, when it was clear and
obvious that the Association team did not find the
Board proposal acceptable. Mr. Jette responded that
the Association team did not recognize the benefits of
the current Board proposal, and that it would be a
potential benefit for more that 50% of the ESP Unit."
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7. "On June 21, 2001, when it became clear that the
Parties were at impasse, Mr. Arthur Jette stated that
he wanted the Association to be clear that the contract
would not be retroactive to June 30, 2001, and that it
would start from the actual date of ratification."
9. "On September 7, 2001, Mr. Lester Butler,
Superintendent of MSAD #46, sent correspondence to
Ms. Laurie Haapanen, UniServ Director for the Maine
Education Association, intending to clarify the
progress of the negotiations. In this correspondence,
Mr. Butler referred to the articles that have been
tentatively agreed upon, the status of the offers of
both Parties, and reiterated the Board's position on
retroactivity. Once again, the Superintendent
requested that the Association bargaining team present
to the membership of the Local Educational Support
Personnel the current Board proposal."
The complaint also states that the parties met on nine different
dates from March 5, 2001, to June 21, 2001, to collectively
bargain; the Association submitted a request for mediation on
June 28, 2001; a mediation session was held on September 4, 2001;
the Association filed a request for fact finding on September 11,
2001; a fact-finding report was issued on December 3, 2001; and
that an additional negotiation session was scheduled for
January 9, 2002. The complaint also notes that the issues
remaining in dispute are wages and health insurance.
DISCUSSION
The initial question before us is whether the facts as
alleged in the complaint state a claim sufficient to survive the
pending motion to dismiss. The complaint alleges that the
Employer's conduct interfered with, restrained or coerced
employees in the exercise of their rights, in violation of
964(1)(A), and that the Employer was not bargaining in good
faith, therefore violating 964(1)(E). If the complaint survives
the motion to dismiss, we must then respond to the complainant's
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request that we "summarily find" a violation of the law[fn]1 based on
the respondent's admission of various facts or, in the alter-
native, the complainant's request to consolidate this case with
another related prohibited practice complaint.
In reviewing a motion to dismiss, we must treat the material
allegations of the complaint as true and must consider the
complaint in the light most favorable to the complainant to
determine whether it alleges facts sufficient to state a claim
for relief. See, e.g., Buzzell, Wasson and MSEA v. State of
Maine, No. 96-14 (MLRB Sept. 22, 1997), citing Brown v. MSEA,
690 A.2d 956, 958 (Me. 1997). When the allegations in the
complaint are more than simply factual allegations but are legal
conclusions, however, we are not bound to accept those legal
conclusions as true. See, Bowen v. Eastman, 645 A.2d 5, 6 (Me.
1994). As the executive director noted in his ruling on the
sufficiency of the complaint, a party may not rely on actions
occurring more than six months prior to the filing of the
complaint to prove the illegality of conduct. A party may,
however, present evidence of events preceding the six-month
period "to shed light on the true character of matters occurring
within the limitations period." Teamsters Local 48 v. City of
Waterville, No. 80-14, at 2-3 (MLRB April 23, 1980).[fn]2
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1 The MLRB Rules Chapter 12, 10(7) states (in part):
If it appears to the prehearing officer that the
determination of a legal issue will resolve the
dispute and render a fact hearing unnecessary,
the prehearing officer may order a severance and
fix a briefing schedule to enable the Board to
first determine the legal issue.
2 We agree with the conclusions of the Executive Director that
the following allegations in the complaint are time-barred:
1. On April 12, 2001, Mr. Arthur Jette refused to discuss
any economic issues with the association until all articles
with language disputes were "cleared up". This statement
came after repeated requests by the association for a wage
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Section (1)(A) prohibits an employer from "interfering with,
restraining or coercing employees in the exercise of the rights
guaranteed in section 963." Section 963, in turn, protects the
right of public employees to:
join, form and participate in the activities of
organizations of their own choosing for the purposes of
representation and collective bargaining, or in the
free exercise of any other right under this chapter.
Interference, restraint or coercion violations are either
derivative or independent violations. A derivative violation
occurs when the employer violates the Act in some other fashion
and that illegal conduct, in turn, has the effect of restraining
employees in the exercise of their 963 rights. An independent
violation of 964(1)(A), however, is not incidental to another
violation but occurs when the conduct itself directly interferes
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and health insurance proposal from the Board to which the
association could respond. The School Board received the
Association's entire proposal on March 5, 2001.
2. On April 24, 2001, Mr. Arthur Jette stated that the
Association had an internal problem of communication with a
seniority list and implied that the Association had weak
communications between one bargaining unit and the other.
3. The Association bargaining team found each negotiating
session with the Board to be defensive in tone and attitude.
An attitude of disrespect and disregard for the Association
team prevailed. Mr. Arthur Jette, Chief Negotiator for the
Board admitted that the negotiations had put the Association
on the defensive on April 24, 2001. Negative comments were
made towards an individual member of the Association team,
Sharon Palmer throughout the course of the meetings.
4. [first sentence] On June 7, 2001, Mr. Arthur Jette stated
that the ESP unit of the association had refused to engage
in discussions on a health insurance reopener during the
duration of the then current collective bargaining
agreement.
5. On June 7, 2001, Mr. Raymond Poulin stated that
Ms. Sharon Palmer did not understand how MSAD 46 school
budget had been devised and that she "didn't have a clue"
about such matters.
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with the exercise of rights granted under the Act.
Independent violations most often occur during a union
organizing campaign when, for example, an employer threatens
employees with retaliation if they support the union or withdraws
benefits during an organizing drive. See, Teamsters v. Town of
Oakland, No. 78-30 (MLRB Aug. 24, 1978) (Town's discontinuance of
long-standing practice of paying for employees' breakfasts after
the employees worked through the night violated 964(1)(A) as it
may reasonably have been interpreted by the employees as a form
of retaliation for their organizational activities.) Although
more unusual, independent violations of 964(1)(A) can occur in
an established union setting where, for example, the employer
attempted to interfere with the employee's right to serve on the
union's negotiating team. MSEA v. Dept. of Human Services, No.
81-35 (MLRB June 26, 1981). See also, MSEA v. Maine Dept. of
Marine Resources, No. 94-41 (MLRB July 3, 1995) (In light of all
the circumstances including tense labor-management relations,
supervisor's profane insults during counseling session and
warning that promotional opportunities would be impaired by
continued union activity had tendency to interfere with
employee's union activity); Ouellette v. City of Caribou, No. 99-17,
at 10 (MLRB Nov. 22, 1999) (Chief's admonition that employee
should not go to the "wrong people" and get "bad advice" was an
independent violation of 964(1)(A).)
The complainant alleges that the School Board violated
964(1)(A) when it "threatened employees with retaliation for
their exercise of protected rights." (Complainant's Brief at p.
3). The threat at the heart of this portion of the complaint is
the Employer's statement during a negotiation session that it
would not make the new contract retroactive to the date the prior
contract expired. (Par. 7 of complaint).
At the prehearing conference, the complainant gave the
following explanation in support of its position that the School
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Board's "threat" regarding retroactivity was a violation of
964(1)(A):
It is interference with the rights of employees to
engage in collective bargaining through a represen-
tative of their choosing, and it is a refusal to
bargain collectively in the manner required by section
965 of the Municipal Public Employees Labor Relations
Law for an employer to threaten in bargaining that it
will use economic power solely within its control, in
this case its control over retroactivity of any
potential wage increase, to coerce the association and
the members of the bargaining unit to settle other non-
wage terms of the collective bargaining agreement.
(Tr. 5-6). In the Prehearing Conference Memorandum and Order
dated March 13, 2002, the Association was advised that its brief
to the Board on the pending motion to dismiss must contain "an
explanation of the legal theory of the [Association's] case with
supporting argument for the Board to 'summarily find' a
violation."
In its brief to the Board, the only discernible reference to
an employer's use of 'economic power solely within its control'
is the Association's citation to the U.S. Supreme Court case NLRB
v. Gissel Packing Co., 395 U.S. 575, 617 (1969), and the corres-
ponding MLRB case in which the Board adopted the federal analysis
for determining the coerciveness of employer statements in the
face of union organizational activities. Kittery Employees
Assoc. v. Strahl, No. 86-16 (MLRB Aug. 6, 1986). This Board
cited Gissel Packing in acknowledging that the Board must "take
into account the economic dependence of the employees on their
employers" in assessing the coerciveness of an employer's
statement. Kittery, No. 86-16, at 11. The economic dependence
is simply one factor that must be considered when deciding
whether a statement made by the employer during a union
organizing campaign would be viewed by the employees as a threat
of economic reprisal.
Economic dependence of employees on the employer does not
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transform otherwise legal conduct into illegal conduct. The key
question in 964(1)(A) cases is "whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act." Jefferson
Teachers Association v. Jefferson School Committee, No. 96-24, at
25 (MLRB August 25, 1997); MSEA v. Department of Human Services,
No. 81-35, at 4-5 (MLRB June 26, 1981) (quoting NLRB v. Ford, 170
F.2d 735, 738 (6th Cir. 1948)). Furthermore, as 965(1)(C)
states that neither party is compelled to make concessions or
agree to a proposal, it cannot reasonably be said that the
Employer's position on retroactivity on its face constitutes an
interference, restraint or coercion violation.
The complainant's position is hard to distinguish from
simple hard bargaining. It almost is as if the union is claiming
that if the Employer is not willing to give in to their demands,
then the Employer has interfered with the employees' right to
collectively bargain. The "free exercise of employee rights
under the Act" is not the same thing as getting what you want.[fn]3
The Employer may engage in hard bargaining in order to achieve
settlement on an agreement it considers favorable to its own
interests. Indeed, the Supreme Court noted that the NLRB has
long recognized that employers can take a position on the
substantive terms as a bargaining tactic in their negotiations.
Brown v. Pro Football, Inc., 518 U.S. 231, 247 (1996), citing
American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965).
The cases the complainant cites in support of its contention
that the Employer's position on retroactivity was retaliation for
protected activity do not support its claim. None of the cases
cited suggest that merely taking a position on retroactivity at
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3 If the complainant's position on retroactivity were correct,
there would be no incentive for the union to seek a prompt
settlement--they could just hold out knowing they would get the
retroactive pay eventually anyway.
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the bargaining table is "interference, restraint or coercion" of
employees in the exercise of protected rights. The only case
that is even remotely like the present case is Oxford Hills
Teachers Assoc. v. MSAD #17, No. 88-13 (MLRB June 16, 1989).[fn]4
There, the Board concluded that an interference, restraint or
coercion violation occurred when the school superintendent pulled
the union president from a study hall and told him they would
"reclaim" retroactive payments already made if the union did not
sign the contract that week. Id. at 43. That conduct was
considered a threat to coerce the union into signing an
agreement, but it is distinguishable from the present case
because in Oxford Hills the superintendent made the statement
outside of the ongoing negotiations. The Board observed that
when there is a disagreement over the final language of the
agreement, the proper course would be to bargain over the issue,
not make a threat outside the collective bargaining process. Id.
In the present case, the statement was made during collective
bargaining as part of the negotiating process. We conclude that
the Employer's statement regarding retroactivity cannot
reasonably be said to interfere with, restrain, or coerce
employees in the exercise of their rights under the Act.
The complainant suggests in its brief that if the allega-
tions in paragraph 7 of the complaint regarding retroactivity do
not on their face constitute a violation of the Act, the
complainant is entitled to a hearing to:
establish the context of the statements to demonstrate
their threatening and retaliatory nature. The context
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4 In Teamsters v. Town of Bar Harbor, the issue was surface
bargaining, and the employer's threat to withhold raises and deny
retroactivity if the union prevailed at fact finding was just one of
many infractions found. No. 82-35, at 11 (MLRB Nov. 2, 1982). The
other case cited by the complainant, Teamsters v. Town of Wells,
merely stated that retaliation for union activity would be a (1)(A)
violation but concluded that the employee at issue had been discharged
for poor performance, not because he sought to have his position added
to a bargaining unit. No. 84-29 (MLRB Oct. 9, 1984).
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of the statements encompasses events preceding and
following the statements, including events which are
alleged to constitute violations of the Act in a
subsequent Complaint against the Respondent, MLRB Case
No. 02-13.
It is not enough to make an assertion that additional facts
to be proved at hearing will support a claim. The complaint must
allege facts which state a claim for relief. While we do not
demand excruciating detail or the use of any particular magic
words, there must be at least a general statement of facts which,
if true, would entitle the complainant to relief. See, e.g.,
Town of Stonington v. Galileau Gospel, 1999 ME 14.
Looking at all of the allegations of conduct occurring
within the six-month limitations period, we do not see a viable
interference, restraint or coercion claim. The statements
complained of were all made during the collective bargaining
process and are acceptable bargaining tactics: the Employer's
statement on retroactivity is a statement of its bargaining
position; the statement that the other bargaining unit had agreed
to share the increased costs of health insurance is simply
argument in support of the Employer's position; the Employer's
suggestion that the union team present the Board's proposal to
the membership for a ratification vote is, again, simply a
bargaining tactic.[fn]5 The fact that the Employer's comments at the
bargaining table could be viewed as disparaging and had the
effect of putting the union on the defensive does not make the
conduct illegal.[fn]6 See, Jefferson Teachers, No. 96-24, at 27
(Arrogant and unhelpful comments made during negotiations not an
independent 964(1)(A) violation).
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5 An employer using this tactic does so at its own peril as the
union may return from the vote with an even stronger mandate from its
membership.
6 Even if we consider the allegations that occurred prior to the
six-month limitations period, they do not alter our conclusion on the
complainant's failure to state a claim.
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The same problem is present with respect to the allegation
that the School Board's conduct was a refusal to bargain in good
faith in violation of 964(1)(E). The complainant argues that
because the duty to negotiate in good faith requires an
assessment made on the totality of the circumstances, the
complainant is entitled to a hearing to establish the facts.
However, to survive a motion to dismiss for failure to state a
claim, it is still necessary to allege facts that would
constitute a violation of the law. Just because the Board must
look at the totality of the circumstances does not mean that the
complainant can simply wait until hearing to identify the facts
that serve as the basis of the complaint.
The test which we apply in evaluating alleged violations of
the duty to bargain in good faith has been outlined as follows:
A bad faith bargaining charge requires that we
examine the totality of the charged party's conduct and
decide whether the party's actions during negotiations
indicate "a present intention to find a basis for
agreement." NLRB v. Montgomery Ward & Co., 133 F.2d
676, 686 (9th Cir. 1943); see also Caribou Schoo1
Department v. Caribou Teachers Association, 402 A.2d 1279,
1282-1283 (Me. 1979). Among the factors which we
typically look to in making our determination are
whether the charged party met and negotiated with the
other party at reasonable times, observed the ground-
rules, offered counterproposals, made compromises,
accepted the other party's positions, put tentative
agreements in writing, and participated in the dispute
resolution procedures. See, e.g., Fox Island Teachers
Association v. MSAD #8 Board of Directors, MLRB No.
81-28 (April 22, 1981); Sanford Highway Unit v. Town of
Sanford, MLRB No. 79-50 (April 5, 1979). When a
party's conduct evinces a sincere desire to reach an
agreement, the party has not bargained in bad faith in
violation of 26 M.R.S.A. Sec. 964(1)(E) unless its
conduct fails to meet the minimum statutory obligations
or constitutes an outright refusal to bargain.
Kittery Employees Assoc. v. Strahl, No. 86-23, at 10-11 (MLRB
Jan. 27, 1987), quoting Waterville Teachers Assoc. v. Waterville
Board of Education, No. 82-11, at 4 (MLRB Feb. 4, 1982).
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Examining the totality of the conduct does not mean that the
complainant is free to make a bare assertion of bad faith
bargaining in the complaint that is insufficient on its face, and
then hope to show the factual basis at the hearing. A motion to
dismiss must look at the allegations in the complaint. In the
present case, the allegations in the complaint, even if true, do
not contain any indication that a violation of the duty to
bargain has occurred.
It is instructive to note what the complaint does not allege
relative to our analysis of bad faith bargaining charges outlined
above. The complaint contains no allegation that the Employer
refused to meet and negotiate at reasonable times; that the
Employer failed to observe agreed-upon groundrules; that the
Employer refused to offer counterproposals, make compromises, or
accept the union's positions; that the Employer refused to put
tentative agreements in writing; that the Employer refused to
participate in the dispute resolution procedures; or that the
Employer sought to circumvent the bargaining agent by dealing
directly with the unit employees. While a complaint need not
allege conduct related to all of the factors listed, something
more must be alleged that goes beyond hard bargaining or making
disparaging remarks at the bargaining table. Allegations
necessary to state a claim that the Employer has refused to
bargain in good faith are absent in this case, so we must grant
the Employer's motion to dismiss.
We recognize that the insufficiencies in the complaint may
reflect the failure of the complainant to appreciate the need to
include in the complaint factual allegations sufficient to
entitle the Association to relief. Although the standard for
considering a motion to dismiss requires us to view the factual
allegations in light most favorable to the complainant, we cannot
rely on conduct occurring outside of the six-month limitations
period, nor can we assume necessary factual allegations that were
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not made in the complaint.
As a final matter, we must address the complainant's request
to consolidate this complaint with a subsequently filed complaint
against the same Employer, Case No. 02-13. As the present
complaint is being dismissed for failure to state a claim, there
is no case left to consolidate. See, Geroux v. City of Old Town,
No. 84-24, (MLRB June 18, 1984); AFSCME v. Town of Rumford, 678 A.2d 591
(Me. 1996). Consequently, we deny complainant's request
to consolidate the two cases. We are concerned, however, that
the complainant's ability to present its second complaint may
have been impaired by the amount of time required for this Board
to hear and decide the motion to dismiss the present complaint.
On the day of the prehearing conference, the complainant
informed the Board that another related complaint would be filed
against the Employer. The complainant requested a stay in the
proceeding pending the filing of the second complaint so that the
two cases could be consolidated. The request was denied in the
Prehearing Conference Memorandum and Order dated March 13, 2002,
because the second complaint had not yet been filed. By the
time the complainant submitted its brief to the Board on the
Employer's motion to dismiss, the second complaint had been filed
and a formal request for consolidation was made.
The complainant argues that the two cases arise out of the
same negotiations process and involve a continuation of the same
issues. In describing this issue at the prehearing conference,
the complainant stated:
. . . what was threatened from June through September
we allege has now in fact been implemented, and
subsequent events establish new violations which form
the necessary context for reviewing these allegations
to determine their legality. It is the association's
intention to file an additional complaint relating to
those subsequent events and to seek to have it joined
with the pending complaint. Knowledge of and under-
standing of those subsequent events is relevant to the
determination of the legality of the employer's conduct
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which is alleged here . . . .
Tr. at 6.
In addition, in its brief opposing the respondent's motion
to dismiss, the complainant stated:
Complainant and Respondent continue to be involved in
the negotiations and have not been able to reach
agreement on a successor agreement to their agreement
which expired in 2001. The Complainant has filed a
second complaint, docketed as MLRB Case No. 02-13,
which contains numerous additional allegations
regarding the Respondent's alleged violations of its
duty to negotiate in good faith, including allegations
of threats and discrimination concerning retroactive
pay. These allegations arise out of the same course of
conduct, and are closely related to the allegations
contained in the instant complaint. Since the
disposition of Complainant's allegation concerning
964(1)(E) of the Act in Case No. 02-09 requires an
assessment of facts, which have yet to be established
at a hearing, the Board should order that the two
related cases now be joined for hearing and further
proceedings.
Brief at p. 4.
We are cognizant of the fact that had the complainant known
that we would be granting the motion to dismiss in the present
case when the complainant was preparing the second complaint, the
complainant might have taken a different approach on what
allegations to include. We want to make sure that complainant's
opportunity for a full hearing on the substance of its charge is
not impaired because of the time it took us to issue a decision
on the motion to dismiss. We feel that it is in the interests of
all to provide the complainant will a full opportunity to present
its evidence supporting those allegations that are timely.
Consequently, we will permit the complainant to amend its second
complaint (No. 02-13) to include any of the allegations made in
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the present case if they had not already been repeated.[fn]7 These
added allegations may, of course, only be used to shed light on
the nature of allegedly illegal conduct occurring within six
months of the filing of the second complaint. Our ruling on this
matter does not alter either the standard regarding sufficiency
of the complaint or the statute of limitations.
ORDER
On the basis of the foregoing discussion and pursuant to the
provisions of 26 M.R.S.A. 968(5), it is hereby ORDERED:
1. Respondent's motion to dismiss is granted.
2. Complainant may amend its second complaint to include
any of the allegations made in the present case if they are not
already included. Such an amendment must be filed within fifteen
(15) days of the date of this decision.
Dated at Augusta, Maine, this 3rd day of July, 2002.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26
M.R.S.A. 968(5)(F) (Supp. /s/___________________________
2001) to seek a review of this Peter T. Dawson
decision and order by the Chair
Superior Court. To initiate
such a review, an appealing
party must file a complaint
with the Superior Court within /s/___________________________
fifteen (15) days of the date Karl Dornish, Jr.
of issuance of this decision Employer Representative
and order, and otherwise
comply with the requirements
of Rule 80(C) of the Rules of
Civil Procedure. /s/___________________________
Wayne W. Whitney
Employee Representative
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7 We have not looked at the second complaint so we do not know the
extent of any overlap in the allegations.
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