Case No. 06-22
Issued: November 21, 2006







     Teamsters Union Local 340 (the "Union") filed this
prohibited practice complaint with the Board alleging that the
Jay School Department (the "Employer") violated the Municipal
Public Employees Labor Relations Act by directly dealing with an
employee regarding a mandatory subject of bargaining and
distributing a memo to unit employees outlining the proposed
changes.  The Teamster's complaint alleges that this conduct by
the Jay School Department violated section 964(1)(A) and (E). 
The Employer argues that its conduct was not a violation of the
     The complaint was filed on April 21, 2006, and the response
was filed on May 18, 2006.  Peter T. Dawson, Esq., served as
the presiding officer at the prehearing conference held on
June 20, 2006.  The Union was represented by Teamsters' Business
Agent Carl Guignard and the Employer was represented by    
Daniel Stockford, Esq.  The evidentiary hearing was held on    
September 12, 2006, at which time the parties were able to
examine and cross-examine witnesses and to offer documentary
evidence.  At the evidentiary hearing, Chair Dawson presided,
with Employer Representative Karl Dornish, Jr., and Employee
Representative Wayne Whitney serving as the other two Board
members.  The parties' briefs were all filed by October 3, 2006,

                           [end page 1]

and the Board deliberated this matter on October 18, 2006.


     The Jay School Department is a public employer within
the meaning of 26 M.R.S.A. §962(7) and the Teamsters Union Local 
340 is a bargaining agent within the meaning of 26 M.R.S.A.
§962(2) at all times relevant to this complaint.  The juris-
diction of the Board to render a decision and order lies in
26 M.R.S.A. §968(5).   

                         FINDINGS OF FACT

1.   Teamsters Union Local 340 is the recognized bargaining agent
     for a bargaining unit composed of school bus drivers,
     custodians and bus driver/custodians at the Jay School
     Department.  Mr. Carl Guignard is the Teamsters' business
     agent responsible for this unit.
2.   Mr. Shink, a union steward and current member of the
     bargaining committee, has been employed by the Jay School
     Committee for 23 years.  He has worked in various capacities
     as bus driver and mechanic, and is currently the maintenance
     person for all three of the school buildings.
3.   At the time of the events at issue, the parties were in the
     process of negotiating a successor agreement to a 3-year
     collective bargaining agreement that had expired on June 30,
4.   The Union's chief spokesman, Carl Guignard, and the School
     Department's chief spokesman, Superintendent Robert Wall,
     signed a document titled "Jay Bus Driver/Custodian
     Negotiations Ground Rules" on May 31, 2005.  The first of
     the four items listed states "Representatives of both
     parties agree that each has the authority to make proposals,
     counter proposals, and to enter into tentative agreements

                           [end page 2]

     subject to ratification by the School Committee and the
5.   Article 12 of the collective bargaining agreement that
     expired on June 30, 2005, is entitled "Hours of Work" and
     states in full:
          A.   Based on present practice the number of
               hours of work are:
               1. Bus drivers and custodians: nine 
               (9) hours per day
               2. Part-time bus drivers: Hours of work vary
               as to nature of work.  The work day will be
               determined by the Superintendent of Schools
               and/or supervisor.
          B.   Any hours worked in excess of forty (40)
               hours per week will be paid at a rate of one
               and one-half (1) times the employee's
               regular hourly rate.  Holidays off, vacation
               days, and bereavement days shall not count as
               hours to be used in the computation of
               overtime.  Overtime shall be computed based
               only upon time worked.
          C.   After January 18, 1994, full-time employees
               hired may be scheduled to work as determined
               by the School Committee.  Any full-time
               employee hired prior to January 18, 1994
               shall be grandfathered under the provision
               contained in Section A(1), which shall be
               interpreted to mean a standard work week of
               five (5) nine (9) hour days per week.

          D.   Employees called in to work while off
               duty shall be paid for a minimum of two

6.   There are currently about 15 employees in the bargaining
     unit, two of whom have been employed since before 1994. 
     Those two employees (one of which is Mr. Shink) are
     grandfathered by Article 12 C and work five 9-hour days
     during the school year.  In the summer, they work four    

                           [end page 3]

     10-hour days plus 5 hours on Fridays.
7.   Mr. Shink testified that paragraph C of Article 12 allowed
     the School to hire people to work on nights for an 8-hour
     shift rather than 9 hours.  Day shift bus driver/custodians
     continued to work a 9-hour day during the school year
     regardless of their date of hire because it was easier than
     trying to schedule around the morning and afternoon bus
     runs.  A 9-hour day enabled the drivers to be there at 6:30
     and stay until the last run was done shortly before 4 pm. 
     Those employees worked four 10-hour days during the summer.
     Mr. Shink testified that the intent of instituting the
     change was to reduce the number of overtime hours that were
     being paid.    
8.   In a document dated June 15, 2005, entitled "School
     Committee Proposal," the Employer proposed eliminating the
     grandfathering of 9-hour schedules.     
9.   In January, 2006, the Jay School Board decided that for the
     following school year they would eliminate 2 portable
     buildings housing a total of 4 classrooms.  This decision
     was based on declining enrollment and state funding formula
     issues.  The Board decided to eliminate 3 teachers at the
     Middle School, 1 at the High School, reassign a kindergarten
     teacher to the 4-year old program, and eliminate one half of
     a custodian position.
10.  Sometime between January and April, 2006, Mr. Shink
     approached Sue Weston, the Maintenance and Transportation
     Director, because he did not agree with the decision to
     reduce custodial staff.  He met with Ms. Weston in his
     capacity as union steward.  Mr. Shink testified that he told
     her that he thought the cut was too big of a hit because it
     did not take four hours to clean the four classrooms.  He
     thought it was unfair for the high school to bear the entire
                           [end page 4]

     burden of the cut.  Mr. Shink said he discussed the issue on
     several occasions with Ms. Weston and eventually realized
     that she would not budge on the staff cut.  Mr. Shink
     described their conversations with:
          In the beginning a lot of it was just going back
          and forth on the four hours, and then, you know,
          once I figured we couldn't get anywhere with it
          and she said this was the bottom line and then
          they were going to create two four-hour positions
          and take some hours from people, and more I
          thought of it, it was still not a good idea but it
          was keeping everybody working.  No one was going
          to lose their job, everyone was still working,
          they weren't going to lose anything in insurance
          or anything.
11.  Mr. Shink was led to believe that the Employer had the
     authority to reduce employees' work hours.
12.  Ms. Weston thought the school had the authority to make
     changes in hours for some employees in the department, based
     on her reading of Article 12 of the collective bargaining
     agreement.  She testified that at some point in the past,
     the Employer had changed a four-hour position to an eight-
     hour position without any bargaining. 
13.  Ms. Weston wrote the memo dated April 4, 2006, and entitled
     "Tentative Job hours for Fall of 2006."  She discussed the
     memo with Mr. Shink the day before or the morning of   
     April 4th before distributing it.  His response was that it
     would keep people in their jobs, with insurance, and was a
     doable answer to the budget crisis.
14.  The Memo indicated it was "From the Maintenance &
     Transportation Office" and stated in its entirety:

               To:       Bus Drivers and Custodians
               From:     Susan Weston
               Date:     April 4, 2006
               Re:       Tentative Job hours for Fall of
                           [end page 5]

          Please let me know if anyone wants to make
          any transfers....
          The tentative plan as I see it is:  (subject
          to change)
          H S Kitchen will be a 7 hour day job (35 hrs
          week) with insurance to stay the same. There
          will be one hour extra on freight days.  The
          Foster Tech am run will be part of this job
          and it will be on the rotating trip list.
          H S 8 hour days (what Mike Tibbetts is
          currently doing but 8-hours on non-schools
          days) will have a daily bus run (HS/MS &
          H S nights office/shop (what Annette is doing
          now with no portables) will be a 7 hour night
          job. Insurance will stay the same.
          M S nights downstairs w/library and stairways
          will be a 7 hour night job. Insurance will
          stay the same.
          Two 4-hour night jobs: (Insurance to be
          determined in negotiations)
          (1) M S gym/caf,/locker rooms (up & down
          stairs)/ downstairs bathrooms/t v room/town
          (1) H S Gym/locker rooms/weight room/kitchen
          The 20 hour workers will be expected to fill
          in doing custodial work and bus driving as
          Elementary School has an 8 hour night job
          opening (the job Rob Donald was doing before
          moving to the high school)
          AGAIN, anyone wanting to transfer should come
          and see me.

15.  Mr. Shink also spoke to the Superintendent about this issue,
     testifying that:
          I went in because this was all being done
          during negotiations and my question to him 

                           [end page 6]

          was did any of these people that were losing
          an hour every day have anything to do with
          the people that were working nine hours,
          cutting these people to make up the time. 
          And he stated no.

16.  When the unit members received the April 4th memo, they were
     upset about the changes.  One of them, Annette Welch, did
     not want a seven hour job so she put in for a transfer to
     the elementary school.  She is no longer employed.  Another
     employee, Mike Tibbetts, hoped to retire from the school and
     then be hired for the four-hour job.  He retired but took a
     job somewhere else.
17.  The Employer never implemented the changes outlined in the
     April 4th memo in full, but when one employee in an 8-hour
     position left employment, he was replaced with a 4-hour
     employee.  The School Department posted three job openings
     on June 13, 2006, for 8-hour night custodial positions.  
     One of the positions would have been a 7-hour position if
     the tentative plan described in the April 4th memo had been
18.  Mr. Shink never indicated to Ms. Weston or Mr. Wall that he
     thought the school department had an obligation to bargain
     over these issues.  Mr. Shink testified that at the time, he
     did not fully understand the bargaining obligations of the


     The legal issue presented in this case is whether the
employer engaged in direct dealing by having a number of discuss-
ions with a union steward about reducing hours of work and then
distributing a memo to unit employees describing the tentative
plan for changing employees' scheduled work hours.  These events
occurred after the parties' collective bargaining agreement had 

                           [end page 7]

expired and while negotiations for a successor agreement were
     The statute is clear that once a union is certified as the
bargaining agent, the law requires the employer to bargain solely
with that union over the terms and conditions of employment for
employees in the unit.  26 M.R.S.A. §967(2)(the certified union
is "the sole and exclusive bargaining agent for all of the
employees in the bargaining unit").  This principle of
exclusivity prohibits the employer from dealing with anyone other
than the bargaining agent concerning mandatory subjects of
bargaining.  See MSEA v. Maine Maritime Academy, No. 05-04  
(Jan. 31, 2006), at 15-16 (discussing direct dealing generally
and holding that Employer's discussions with new hire about
salary and housing benefit violated the Act).  In the present
case, the Employer first argues that because the discussions were
with a union steward, they cannot be considered dealing with
someone other than the bargaining agent.
     Mr. Shink approached Ms. Weston in his capacity as union
steward to discuss the staff cut.  There is no evidence in the
record, however, even suggesting that Mr. Shink was authorized to
bargain on behalf of the unit members.  On the contrary, the
evidence shows that the parties explicitly agreed in the
negotiating groundrules that Mr. Guignard, the Teamsters'
business agent, and Superintendent Wall were the only
representatives authorized to bargain.  Without that authority,
it was improper for the employer to bargain with Mr. Shink,
regardless of who initiated the discussion.
     The Employer relies on the holding in AFSCME v. City of
Portland and Robert Ganley, et al. in which the Board concluded
that the local union president's assent to the employer's use of
a survey was a waiver of the right to later object even though
AFSCME was the bargaining agent for the local union.  No. 90-14 

                           [end page 8]

(Oct. 18, 1990) at 14.  In that case, the Board held that it "was
not the City's responsibility to make sure that the lines of
authority within AFSCME were clear to AFSCME locals."  90-14 at
14.  In the AFSCME case, the union president in question had the
apparent authority to act on behalf of the local because he had
signed a number of side agreements that affected the terms of the
collective bargaining agreement with the employer.  In this case,
there is nothing in the record to suggest that Mr. Shink had real
or apparent authority to bargain side agreements with the
employer.  Consequently, Ms. Weston's dealings with Mr. Shink on
this matter violated §964(1)(E).
     We recognize that Mr. Shink's confusion about his own
authority may have contributed to the problem and this incident
might have been avoided if the Union had done a more thorough job
in instructing the stewards on the limits of their authority. 
The fact remains, though, that the director of transportation
bargained directly with Mr. Shink over a mandatory subject that
should have been brought to the bargaining table.[fn]1  Ms. Weston's 
acts were performed by her in the course of her official duties
so the Employer is liable whether or not she actively consulted
with the superintendent on these matters.  See Auburn Fire-
fighters Assoc. IAFF v. Paula Valente & City of Auburn, No. 87-19
(Sept. 11, 1987) at 2, and Teamsters Local Union No. 48 v.
Eastport School Dept. and Brian Smith, No. 85-18 (Oct. 10, 1985)
at 2.  Thus, we need not consider whether or to what extent the
superintendent was involved.
     The Employer's second argument is that because neither the
union steward nor the transportation manager believed that there
was any obligation to bargain, their discussions did not 

     Footnote 1  There is a noticeable hole in the record concerning
whether the staff cut was ever brought up at the bargaining table
during the winter of 2006.

                           [end page 9]

constitute bargaining.  The Employer claims it was not bargaining
because the discussions related to the administration of the
existing collective bargaining agreement, relying on the
testimony of Ms. Weston that she thought the employer had the
authority to change work schedules under Article 12.  The problem
with this argument is that the collective bargaining agreement
had expired on June 30, 2005.  Consequently, there was no
contract to administer.  As this Board has held, 
     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.  Teamsters Local Union No. 48 v. Boothbay/
     Boothbay Harbor Community School District, No. 86-02,
     slip op. at 11, 9 NPER ME-17009 (Me.L.R.B. Mar. 18,
     1986), citing Sanford Fire Fighters Association v.
     Sanford Fire Commission, No. 79-62, slip op. at 10
     (Me.L.R.B. Dec. 5, 1979); Easton Teachers Association
     v. Easton School Committee, No. 79-14, slip op. at 5, 1
     NPER 20-10004 (Me.L.R.B. Mar. 13, 1979).

MSEA v. School Committee of the City of Lewiston, 90-12 (Aug. 21,
1990) at 16.  Thus, the hours and schedule in effect at the time
of the expiration, in this case June 30, 2005, must remain in
effect while the parties negotiate a new agreement.  There simply
is no contract to administer.  There is therefore no need to
consider what the employer could have done under Article 12 of
the agreement because it was no longer in effect. 
     The Employer also argues that the April 4th memo itself
cannot be construed as direct dealing because it simply provided
notice to employees of the schedule adjustments but was not a
proposal or otherwise invited a response from employees.  The
Employer cites Orono Fire Fighters Ass'n, in which this Board

                          [end page 10]

          . . . It is the employer's conduct that is 
          key to a finding of direct dealing, and the
          distinction between notice to an employee
          regarding a change in working conditions, and
          a proposal for such a change, is

Orono Fire Fighters Ass'n v. Town of Orono, No. 89-18 (Sept. 21,
1989), at 10-11.  In the Orono case, the Board did not find a
direct dealing violation because the manager's communication with
the employee was to inform the employee of a change, not propose
it to him.  In the present case, the April 4th memo does not on
its face appear to make a proposal to employees or solicit their
opinion or response.  In other cases where this Board has found
written materials to unit employees to be direct dealing, those
documents were clearly intended to solicit employee input.  In
AFSCME v. City of Portland, 15 of the 19 survey questions related
to current or alternative pension benefits, an issue on the
bargaining table at the time.  No. 90-14 at 18.  In Teamsters v.
Aroostook County, the employer sent a questionnaire asking
employees to choose from the alternatives presented for
scheduling furlough dates.  No. 92-28 (Nov. 5, 1992).  Here, the
memo does not explicitly or even implicitly solicit employee
responses; it merely reminds employees of the opportunity to
transfer.  There is no evidence in the record to explain why the
memo says that it is a "tentative plan," "subject to change." 
Without more evidence on this issue, we are unwilling to view the
memo alone as soliciting employee response or attempting to
undermine the status of the union.  We therefore conclude that
the memo did not itself constitute direct dealing in violation of
§964(1)(E).  We consider the memo to be additional evidence of
the employer's direct dealing with Mr. Shink, as the memo is
essentially the product of that violation. 
      As a final matter, we agree that the Employer's direct
dealing also violated §964(1)(A).  When the Employer engages in 

                          [end page 11]

conduct which is likely to erode the Union's position as
exclusive representative, it is a (1)(A) violation because it
interferes with employees' exercise of rights guaranteed by the
Act.  MSEA v. Maine Maritime Academy, No. 05-04 at 15, citing
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944).  It is
unnecessary to prove there was an intent to undermine the status
of the Union in distributing the memo, as the standard the Board
applies is whether the action "reasonably tended to interfere
with" protected activities.  See, e.g., Teamsters Local 340 v.
Aroostook County, No. 03-09, at 28 (Feb. 2, 2004).  The events in
this case would clearly tend to make the employees believe that
the Union was without power or authority to negotiate work hours.


     On the basis of the foregoing discussion, and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. §979-H(2), it is ORDERED:
     1.  That the Jay School Department cease and desist
     from engaging in direct dealing with employees in the
     unit regarding the mandatory subject of scheduling of
     work.  Changes in scheduled hours may occur only
     through the collective bargaining process with the
     bargaining agent.

     2.  That the Jay School Department shall post for
     thirty (30) consecutive days copies of the attached
     notice to employees which states that the School
     Department will cease and desist direct dealing with
     employees.[fn]2  The notice must be posted in conspicuous 
     places where notices to members of the Bus Drivers and
     Custodians bargaining unit are customarily posted, and
     at all times when such employees customarily perform 

     Footnote 2 In the event that the Board's Decision and Order is
appealed and is affirmed by the Maine Superior Court, the words in the
Notice "Posted by Order of the Maine Labor Relations Board" shall be
altered to read "Posted by Order of the Maine Labor Relations Board,
affirmed by the Maine Superior Court."

                          [end page 12]

     work at those places.  Copies of the notice shall be
     signed by the Superintendent prior to posting and shall
     be posted immediately upon receipt.  The Superintendent
     shall take reasonable steps to ensure that the notices
     are not altered, defaced, or covered by other

Dated at Augusta, Maine, this 21st day of November, 2006.

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) (Supp. 2005) to seek a review of this decision and order by the Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80(C) of the Rules of Civil Procedure.


Peter T. Dawson

Karl Dornish, Jr.
Employer Representative

Wayne W. Whitney
Employee Representative



                          [end page 13]

                      NOTICE TO EMPLOYEES

     WE WILL CEASE AND DESIST from negotiating directly with
     any employee in any classification in the bargaining
     unit represented by Teamsters Union Local 340 over any
     mandatory subject of bargaining.  We will comply with
     our statutory obligation to bargain with the Teamsters
     Union as the exclusive representative of employees in
     the Bus Driver & Custodian bargaining unit at the Jay
     School Department.

     WE WILL post this notice of the Board's Order for 30
     consecutive days in conspicuous places where notices to
     employees in the Bus Driver & Custodian bargaining unit
     are customarily posted, and at all times when those
     employees customarily perform work at those places.

     WE WILL notify the Board of the date of posting and
     final compliance with its Order.

_______________      ____________________________________________
Date                 Robert Wall, Superintendent
                     Jay School Department

This Notice must remain posted for 30 consecutive days as
required by Order of the Maine Labor Relations Board and must not
be altered, defaced, or covered by any other material.  Any
questions concerning this notice or compliance with its
provisions may be directed to:

                         STATE OF MAINE
                    90 STATE HOUSE STATION 
             AUGUSTA, ME 04333-0090 (207) 287-2015


                    AND MUST NOT BE DEFACED.