STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 06-IR-01
Issued: April 20, 2006
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)
In re: Lewiston School Committee, ) DECISION DENYING
Petition for Interpretive ) PETITION FOR
Ruling ) INTERPRETIVE RULING
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On February 10, 2006, the Lewiston School Committee filed a
petition for an interpretive ruling with the Maine Labor
Relations Board (Board or MLRB) regarding the application of the
Board's fact-finding rules. The questions presented by the
petition are (1) whether communications between an employee-party
and the employee representative on the panel during deliberations
of the fact-finding panel are contrary to MLRB Rule Chapter 13,
sections 32 or 33, when a similar opportunity is not provided for
the employer-party to communicate with the management repre-
sentative during those deliberations; and (2) whether an attorney
who is a paid representative of a public employee association is
disqualified under MLRB Rule Chapter 13, sections 25 or 26, from
serving as a fact finder in a fact-finding proceeding in which
that public employee association is a party.
At the time that the petition was submitted, the fact-
finding hearing was completed and the fact-finding panel had
deliberated but not yet issued its report. The Board's rules
require the fact-finding panel to issue its report within 30 days
of the close of the hearing or receipt of post-hearing briefs.
MLRB Rule Ch. 13, 35(1). Shortly after the School Committee
filed the petition, the MLRB Executive Director denied the
School's request that he instruct the chair of the fact-finding
panel not to issue a report until the Board ruled on the
petition. The Executive Director concluded that he had no
statutory authority to stay a fact-finding proceeding, based on
this Board's decision in Kittery Education Association v. Kittery
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School Committee, No. 00-22 (August 24, 2000), holding that the
Board had no authority to stay an arbitration proceeding.
Following the Executive Director's decision, the Lewiston
Education Association/MEA/NEA filed a response to the School's
petition for an interpretive ruling which was considered by this
Board.
Interpretive rulings are a mechanism that enable a party to
receive an indication from the Board on whether a contemplated
course of action would violate the law. Not all questions can be
resolved through an interpretive ruling. Section 41 of the MLRB
rules on prohibited practices deals specifically with requests
for an interpretive ruling. See MLRB Rule Ch. 12, 41. The
initial portion of that section states the appropriate
circumstances for an interpretive ruling:
41. Interpretive Rulings. An interpretive ruling is
a means for determining specific questions as to the
prospective rights, obligations, or liabilities of a
party when controversy or doubt has arisen regarding
the applicability of a specific statute, Board order or
rule. A petition for an interpretive ruling may not be
used to resolve factual disputes between adversaries
and may not be used as a substitute for other remedies
provided by the collective bargaining laws.
The first sub-section in section 41 describes the specific
requirements for filing a petition, such as the number of copies
to be filed and the information that must be included.[fn]1 Of
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1 Sub- 1. Petition for Interpretive Ruling. A petition for an
interpretive ruling may be filed with the Board by any person,
employee organization, or public employer. A petition for an
interpretive ruling must be filed in the original and four copies.
In order to show the existence of a controversy or doubt, the
petitioning party must describe the potential effect upon that party's
interests in its petition. The petition must contain the name and
address of the petitioner; the statute, Board order, or Board rule on
which the interpretive ruling is sought; a clear and concise statement
of the facts and circumstances and the contemplated action of the
petitioner which arguably might elicit the filing of a prohibited act
complaint or to which the specified statute, Board order, or Board
rules and procedures might be applicable; and a supporting memorandum
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particular importance to the present petition are the require-
ments that,
. . . In order to show the existence of a controversy
or doubt, the petitioning party must describe the
potential effect upon that party's interests in its
petition. The petition must contain . . . a clear and
concise statement of the facts and circumstances and
the contemplated action of the petitioner which
arguably might elicit the filing of a prohibited act
complaint or to which the specified statute, Board
order, or Board rules and procedures might be
applicable . . . .
The School Committee's petition seeks a ruling on whether
conduct that has already transpired violated the Board's fact-
finding rules. The School Committee did not describe "the
potential effect upon [its] interests" in its petition nor did
the School Committee raise any "questions as to the prospective
rights, obligations, or liabilities" regarding the applicability
of the rules at issue. Everything contained in the petition
concerns past conduct, not prospective rights or liabilities.
The classic example of a situation in which a petition for
interpretive ruling is appropriate is when the parties are
engaged in bargaining and there is a question as to whether a
particular subject is a mandatory subject of bargaining. See,
e.g., City of Portland, Petition for Interpretive Ruling, No.
01-IR-01 (June 27, 2001) (Petition inquiring whether the
establishment of a Police Civilian Review Subcommittee would be a
mandatory subject of bargaining was appropriate); Petition for
Interpretive Ruling of Millinocket School Committee, No. 92-IR-01,
(July 13, 2001) (Petition appropriate because School
Committee was contemplating refusing to bargain over the issue of
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of law. If negotiations are in progress and a controversy has arisen
concerning the required scope of bargaining, the petition must include
a brief description of the positions taken by the parties and copies
of all proposals and counterproposals submitted by the parties
relating to the dispute.
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health insurance premiums for retirees during negotiations for a
successor contract). In these kinds of cases, the only alterna-
tive for the petitioner would be to take the action being contem-
plated and risk being the subject of a prohibited practice
complaint.
As is clear from the wording of the Board's rule on this
matter, interpretive rulings focus on prospective rights,
obligations and liabilities. The ex parte communication issue
raised in the School Committee's petition is simply a matter of
whether a past action violated a Board rule. It is therefore not
an appropriate issue for an interpretive ruling because it is not
prospective in nature. The School Committee seeks a ruling on a
past action, not guidance for future action. In effect, the
School Committee is seeking to transform the interpretive ruling
mechanism into a vehicle for determining wrongdoing when the
complained-of act does not constitute a prohibited practice.
The question of the eligibility of the employee-representative
to serve on the panel suffers the same fate because there is no
issue about prospective rights, obligations or liabilities.
This is because the findings and recommendations of a fact-
finding panel are just that--recommendations. Either party may
reject a fact-finding panel's recommendations without violating
the law and without affecting the party's rights, obligations or
liabilities. If a case proceeds to arbitration, a party may
present its objection to the fact-finding report to the
arbitrators, whether the objection is based on the substance of
the report or the fact-finding procedure (as in this case).
If the statutory framework were different, however, and the
rejection of a fact-finding panel's report carried with it some
legal consequences, an interpretive ruling might be appropriate
to address the question of whether the procedural concerns
justified the rejection of the report.
For the forgoing reasons, we conclude that the School
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Committee's petition for an interpretive ruling should be
dismissed as neither of the questions raised concern any
prospective rights, obligations, or liabilities of the parties
as required by MLRB Rule Chapter 12, 41.
Issued this 20th day of April, 2006.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Peter T. Dawson
Chair
/s/_____________________________
Karl Dornish, Jr.
Employer Representative
/s/_____________________________
Wayne W. Whitney
Employee Representative