Affirmed 2018 ME 29.

 

	  
     The SAD 3 Education Association MEA/NEA filed this Complaint 
on March 9, 2015, alleging that Respondent RSU #3 (the "Employer") 
violated §964(1)(E) of the Municipal Public Employees Labor 
Relations Law (the "Act") by failing to participate in good faith 
in the Act's mediation, fact-finding and arbitration procedures 
with respect to the impact of changes in educational policy.[fn]1  
Specifically, the dispute involves the impact of a change in the 
school bus schedule on the working conditions of the teachers in 
the district.
      
     A pre-hearing conference was held on June 10, 2015, with 
Chair Katharine I. Rand serving as the presiding officer.  
Ms. Krystyna Dzialo, MEA UniServ Director, represented Complainant 
SAD 3 Education Association, and was assisted by Mr. C.J. Betit, 
also with the Maine Education Association.  Campbell Badger, Esq., 
represented RSU 3, and was assisted by Mr. Roger Kelley.  Various 
exhibits were identified and admitted at the prehearing conference 
at which time the parties identified their witnesses.

[fn]1  The Complaint also alleged a failure to bargain in good faith over the 
impact, but this allegation was dropped by the start of the hearing.

[end of page 1]


     An evidentiary hearing was held on October 27, 2015.  At the 
start of the hearing, the parties agreed that any facts in the 
Complaint admitted by the Respondent should be considered 
stipulated to for purposes of the hearing.  The Complainant did 
not offer any witnesses, but rested its case relying on the 
stipulated facts to prove a violation.  The Respondent made a 
motion to dismiss, arguing that the Complainant had not demon-
strated that the school district had violated §964(1)(E).  After 
consideration, the Board denied the motion, stating that deter-
mining whether a violation occurred depends at least in part on 
the evidence that the Respondent offers to support its defenses.


                STIPULATIONS AND FINDINGS OF FACTS


1.   Complainant SAD 3 Education Association MEA/NEA is the 
     recognized bargaining agent within the meaning of 26 MRSA    
     §962(2) of the Municipal Public Employees Labor Relations Law 
     ("MPELRL") for a unit consisting of classroom teachers; 
     guidance counselors; librarians; nurses; occupational, 
     physical and speech therapists; social workers, and music 
     supervisors employed by the Board of Directors of RSU #3. 
     (STIPULATION)
 
2.   Respondent Board of Directors of RSU #3 ("School Board"[fn]2) is a 
     public employer within the meaning of 26 MRSA § 962(7). 
     (STIPULATION)

3.   RSU 3 is a rural school district comprised of the towns of 
     Brooks, Freedom, Jackson, Knox, Liberty, Monroe, Montville, 
     Thorndike, Troy, Unity, and Waldo.  The geographic area of 
     the school district is vast.  The RSU has five elementary 

[fn]2 For the sake of clarity, the references to the "Board" in the 
stipulations will be changed to "School Board" so that we may continue 
our practice of using "Board" for the Maine Labor Relations Board.

[end of page 2]


     schools, one middle school, and one high school.  Mount View 
     Elementary School, Mount View Middle School, and Mount View 
     High School are located on the same property, often referred 
     to as "the Complex" in Thorndike.  The other schools of 
     Monroe Elementary, Morse Elementary, Troy Elementary, and 
     Walker Elementary are located in communities surrounding 
     Thorndike.  School buses travel winding, hilly rural roads to 
     pick up and transport students to and from school. 
     (STIPULATION)

4.   RSU 3 had used double bus runs for about ten years, that is, 
     the buses would first pick up and deliver the older students 
     to the central complex, then make another run to pick up and 
     deliver the younger students to the elementary schools.

5.   During the spring of 2012 the School Board made the determin-
     ation that it was going to combine school bus runs so that 
     students in kindergarten through grade 12 would all ride the 
     same bus to and from school.  The objective of this change 
     was to reduce the transportation costs for the district. 
     (STIPULATION)  The School Board made this decision because it 
     was faced with a loss of $250,000 in the 2012-2013 budget due 
     to a decrease in the state subsidy.

6.   The impact of this change on teachers' working conditions was 
     unknown at the time and the parties agreed to wait to address 
     the issue until the 2012-2013 school year when the impact of 
     the change was more clear. (STIPULATION)
 
7.   During the fall of 2012, Ms. Terri Church, the President of 
     SAD 3 Education Association, received input via email from 
     the 19 teachers in the outlying schools on the effect the 
     change in school bus runs had on their hours and working 
     conditions.  With a single bus run, the elementary students
     were dropped off earlier in the morning and picked up later 

[end of page 3]


     for the ride home than they had been under the prior system.  
     Ms. Church and Ms. Heather Perry, the RSU #3 Superintendent, 
     met to see if they could try to find a solution without more 
     formal bargaining.  As the teachers and the building 
     principals had different views on the matter, this informal 
     approach was not productive.
  
8.   In the beginning of January of 2013, the Association informed 
     the School Board of its demand to enter into impact 
     bargaining regarding the change in working conditions due to 
     the shift to the single bus run, which resulted in an 
     increase to the teacher workday for teachers in certain 
     schools in the district. (STIPULATION)  The Association 
     subsequently clarified its demand to bargain and a meeting 
     date was set. (STIPULATION)

9.   The Association did not provide the School Board with 120 
     days' notice, pursuant to Title 26, §965(1).

10.  On January 10, 2013, Superintendent Heather Perry e-mailed 
     the Association leadership to let them know that the Board 
     would be willing to meet to hear the Association "present its 
     case that this item should be impact bargained." 
     (STIPULATION).  Mr. Roger Kelley, a labor relations 
     consultant employed by the School Board, advised the 
     Superintendent on how to respond to this impact bargaining 
     request.  Mr. Kelley had served as the School Board's chief 
     negotiator for several years and continued to do so for the 
     duration of the events addressed in this Complaint.

11.  When the School Board and the Association engage in 
     collective bargaining, they use a problem-solving approach 
     during which each side identifies issues of concern to it, 
     and the parties brainstorm ideas and possible solutions.  
     This is different than the traditional approach of each side 

[end of page 4]


     presenting written bargaining demands to which the other side 
     responds or presents counter-proposals.

12.  On February 14, 2013, the Association and the School Board 
     entered into impact bargaining negotiations regarding this 
     change in working conditions for teachers. (STIPULATION)

13.  On February 14, 2013, the first of three impact bargaining 
     sessions, Mr. Kelley explained the School Board's position 
     that if the issue were the length of the teacher day, the 
     School Board did not see an obligation to impact bargain 
     because that issue had been addressed in prior negotiations.  
     He stated that Article 7 (E) of the then-current collective 
     bargaining agreement had been adopted in 2006 to address 
     concerns about the length of the teacher days, that is, how 
     long before and after school the teachers must be in 
     attendance.  Article 7 (E) had not changed since it was first 
     added to the agreement and stated, in full, 

          (E). With respect to the teachers' in-school work day, 
          the teachers will devote the time necessary to meet 
          their professional responsibilities.

14.  The Association did not present any written proposals at this 
     time, but made a verbal proposal of $7,000 for each of the 19 
     teachers in the outlying schools as compensation for the 
     extra hours they had to work.  The Association asserted that 
     there was an equity issue because the teachers in the 
     outlying schools had one hour per day more student contact 
     time than the teachers at the central complex.  The School 
     Board contended that the existing salary included the longer 
     work day, and it was opposed to additional compensation.
  
15.  At the second meeting on March 20, 2013, Superintendent Perry 
     shared information on her analysis of student contact time at 

[end of page 5]


     the various schools.  The result was that the differential 
     between the teacher day at the outlying schools and the 
     central complex was about 30 minutes per day.  The parties 
     discussed several different approaches to addressing the 
     issue.  The School Board listened to all of the concerns 
     expressed by the Association and asked questions to better 
     understand the proposals being made.
  
16.  Between the second and third meeting, the Superintendent 
     reviewed all of the options that had been suggested to 
     determine which were financially possible or otherwise 
     feasible.  The Superintendent provided this information to 
     the Association during the third meeting, on April 10, 2014.  
     At that meeting, the parties also talked about additional 
     options that could be implemented at the start of the 
     following year.  The Superintendent offered a stipend of $500 
     for each of the affected teachers.  While the Association 
     members caucused, a School Board member informed the Super-
     intendent that she had not been authorized to offer a stipend 
     as the School Board was opposed to any sort of differential 
     payment.  When the Association returned from their caucus, 
     the Superintendent told them she had been in error offering 
     the $500 and it should not have been offered.  The 
     Association indicated they wanted to have time to consider 
     all the options that had been discussed and present a 
     comprehensive proposal to the Board.  The School Board agreed 
     and the meeting ended.  There was no date set for another 
     meeting, nor was there any discussion of a timeframe for 
     putting together the proposal.  The Superintendent testified 
     that she assumed that a proposal would be forthcoming in the 
     next two or three weeks. 

[end of page 6] 


17.  The Association membership did not meet to discuss the 
     details of its proposal until June.  Sometime during the 
     summer, Ms. Church sent out a draft proposal to the members, 
     but did not receive much, if any, response or input.
 
18.  Over the summer, Ms. Church spoke with the Superintendent a 
     couple of times and met with her in August to discuss the 
     evaluation system and a problem teacher.  Ms. Church 
     testified that she told Ms. Perry she was working on the 
     proposal for the impact of the busing change, but Ms. Perry 
     did not have a specific recollection of this conversation.  
     Ms. Church testified that every time she raised the issue of 
     the impact proposal, the Superintendent said things like 
     "Well, I'm not involved in that anymore, that's off my plate, 
     not something I'm doing."  Ms. Church testified that she 
     didn't know what Ms. Perry meant by such comments, and 
     thought that it was "just Roger saying that it was done at 
     that point."  Neither Ms. Church nor the Education 
     Association's professional staff sought clarification from 
     the Superintendent or contacted Mr. Kelley about the status 
     of impact bargaining during this period.

19.  Ms. Church emailed the draft proposal to the Association 
     membership for a vote, and it was approved in September.

20.  On October 1, 2013, an unsigned "Memorandum of Agreement" 
     (MOA) dated September 13, 2013, appeared on Ms. Perry's 
     office chair.  There was no cover letter or explanatory note 
     accompanying the one-page memorandum.  As the MOA included 
     items that had not been discussed or agreed to at the April 
     meeting, the Superintendent was confused by the document.  
     She called Ms. Church to get clarification, and learned that 
     it was the Association's proposal.  The Superintendent 
     consulted with Mr. Kelley about the matter. 

[end of page 7]


21.  On October 16, 2013, the School Board responded with a letter 
     to the Association rejecting the Association?s proposal. 
     STIPULATION)  The Association did not respond.

22.  On December 6, 2013, the Association filed a request for 
     mediation with Marc Ayotte, Executive Director of the Maine 
     Labor Relations Board, with a copy to the School Board's 
     representative, Roger Kelley. (STIPULATION)

23.  On January 15, 2014, Mr. Ayotte assigned Denis Jean as the 
     mediator.  The first date scheduled for mediation between the 
     parties was set for March 12, 2014.  Due to an unforeseen 
     resignation of their Board Chair, the School Board requested 
     the March 12 meeting be rescheduled. (STIPULATION)

24.  At some point around this time, the Association sent a formal 
     letter to request bargaining for a successor contract to the 
     2011-14 agreement, which was due to expire on August 31, 
     2014.  This request complied with the 120-day notice require-
     ment of Title 26, §965(1).  The parties began bargaining in 
     February of 2014, and met several times in March.
  
25.  One of the first issues raised by the Association during 
     successor negotiations was the length of the teacher workday.  
     The specific problem identified was that the language of 
     Article 7(E) was unclear, and needed to be made more 
     specific.  The parties brainstormed several possible 
     solutions during their March 25, 2014 negotiating session, 
     and agreed upon language that was approved ("TA'd") on 
     April 1, 2014.  The new language included a goal of 
     maintaining equity across all schools and an agreement to 
     consult with the Association before setting school hours.  
     It also set the teacher's in-school workday to begin 15 
     minutes before the school start time for all teachers.  
     For the teachers at the outlying schools, their day would

[end of page 8]

 
     end at the same time the students were dismissed, while the 
     teachers at the central complex had to stay an additional 15 
     minutes.  April 1, 2014, was the date the parties concluded 
     their successor negotiations and signed off on all of the 
     tentative agreements for the 2014-2017 collective bargaining 
     agreement.

26.  Mediation on the impact bargaining matter did not occur until 
     after the successor negotiations had concluded.  The parties 
     et with Mr. Jean two times on April 8 and May 7, 2014, but 
     were unable to resolve any of the issues in dispute. 
     (STIPULATION)

27.  The first impact mediation session on April 8, 2014, lasted 
     about three or four hours, first with an initial meeting of 
     both sides with the mediator, then the mediator shuttling 
     back and forth between the parties.  Mr. Kelley was not 
     present at this session and the School Board did not raise 
     the question of why they were still meeting after having 
     signed a tentative agreement for the successor contract.

28.  The second impact mediation session was held on May 7, 2014.  
     Mr. Kelley was present and informed the mediator that the 
     express issue of equity had been addressed in the tentative 
     agreement.  The Association's position was that the issue was 
     not resolved because the successor agreement made no 
     provision for addressing the situation prior to the effective 
     date of the successor contract.

29.  On or about July 3, 2014, the Association sent their request 
     for fact finding to Mr. Ayotte and Mr. Kelley. (STIPULATION)

30.  Upon receiving the Association's request for fact finding, 
     Mr. Ayotte sent letters to Ms. Dzialo and Mr. Kelley asking 
     them to select their representative on the fact finding 
     panel.  The Association responded promptly but the Employer 

[end of page 9]


     did not.

31.  On October 17, 2014, the RSU 3 Board of Director's Attorney, 
     Campbell Badger, sent a letter to Mr. Ayotte and Ms. Dzialo 
     saying the Board was "unwilling to expend the time, energy 
     and costs associated with said [fact finding] request."

32.  On January 20, 2015, Mr. Ayotte emailed the parties stating 
     that he would not be scheduling a fact finding because it was 
     "clear from Campbell's letter of October 17, 2014, that the 
     Board of Directors will not participate in the proceeding."


                           JURISDICTION

     The SAD 3 Education Association MEA/NEA is the bargaining 
agent within the meaning of 26 MRS §962(2) and the Board of 
Directors of RSU #3 is the public employer within the meaning of 
26 MRS §962(7).  The jurisdiction of the Board to hear this case 
and to render a decision and order lies in 26 MRSA §968(5).
 

                            DISCUSSION

     Section 964(1)(E) of the Act prohibits a public employer 
from refusing to bargain with the bargaining agent as required by 
section 965.  In turn, section 965 obligates the parties, among 
other things, "to participate in good faith in the mediation, 
fact-finding and arbitration procedures required by this section."  
There is no dispute that the Employer did, indeed, expressly and 
unequivocally refuse to participate in fact finding in its letter 
of October 2014.  Such a refusal to participate in the dispute 
resolution procedures outlined in the Act typically constitutes a 
failure to bargain in good faith and violates section 964(1)(E).  
MSAD #68 Teachers Assoc. v. MSAD #68 Board of Directors, No 79-22 
at 6 (Jan. 24, 1979); Teamsters Union Local 340 v. City of 
Biddeford, No. 93-25, at 12 (June 3, 1993).

[end of page 10]


     The Employer presents several arguments that it did not have 
a legal obligation to participate in fact finding.  These various 
affirmative defenses are:
       
  1.  The impact of single busing was already contemplated by
  Article 7(E) of the 2011-14 collective bargaining agreement;

  2.  The impact of single busing was conclusively resolved in 
  the 2014-17 collective bargaining agreement;

  3.  The Association waived its right to further bargain the 
  impact of single busing through its own inaction;

  4.  The Association's impact bargaining claim is time-barred 
  under section 968(5)(B);

  5.  The Association is barred from asserting its impact 
  bargaining claim pursuant to the doctrines of equitable 
  estoppel and laches; and

  6.  The Association failed to provide the School Board with the 
  statutorily required 120-days' notice of its intent to 
  negotiate matters involving appropriation of money.


     As the party raising these defenses, the School Board has the 
burden of proving by a preponderance of the evidence the validity 
of each defense.  26 MRS §968(5)(C).  Steven Duran v. Maine 
Education Association, 09-06 at p. 8 (June 25, 2009) and MSEA v. 
State of Maine, No. 82-05 at 8 (Dec. 22, 1982), rev'd on other 
grounds, 499 A.2d 1228 (Me. 1985).

      
     The first affirmative defense is the same argument that 
Mr. Kelley raised during the parties' first impact bargaining 
sessions, that is, that the impact of changing to a single bus run 
was already contemplated by Article 7(E) of the collective 
bargaining agreement.  At the time, that provision stated: 

     E. With respect to the teachers' in-school work day, the 
     teachers will devote the time necessary to meet their 

[end of page 11]


     professional responsibilities.

     This Board has previously held that there must be specific 
contractual language before waiver of a statutory right will be 
found, and the waiver normally is applicable only to the specific 
item mentioned.  MSEA v. State of Maine, No. 84-19 at 9 (July 23, 
1984)(general language in management rights clause including right 
to direct the work force was not unambiguous express waiver of 
right to bargain over change in practice that prevented employees 
from performing job duties not in the job classification).  The 
Board has also frequently noted that a waiver must be express and 
"a mere inference, no matter how strong, should be insufficient."  
See, e.g., Id., citing Communications Workers of America v. NLRB, 
644 F.2d 923, 928 (1st Cir. 1981), and Paul Coulombe and South 
Portland Prof'l Firefighters Local 1476 IAFF v. City of South 
Portland, No. 86-11 at 22 (Dec. 29, 1986)(same).

     The language of Article 7(E) is too vague to constitute 
waiver of impact bargaining related to the change to the school 
bus run.  Were we to accept the School Board's logic, it would be 
under no obligation to bargain the impact of, for example, a 
change to the length of the school day by virtue of providing 
night school.  

     The second defense listed above is the School Board's claim 
that it was not obligated to continue bargaining over impact once 
the parties agreed upon a successor contract which, it argues, 
"conclusively resolved all bargaining issues relating to the 
impact of single busing."  Brief at 21.  This argument also fails.  
If the successor agreement had, in fact, conclusively resolved all 
the issues, the parties could have included language in the 
agreement stating just that.  This could have been accomplished in 

[end of page 12]


a 'conclusion of negotiations' provision or as a separate 
memorandum of agreement.  More importantly, whether the issues 
were "conclusively resolved" is just a matter of opinion.  While 
the Employer was apparently convinced there was nothing left to 
bargain, the Union had a different view of the matter.  

     The third defense asserted by the School Board is that the 
Association waived its right to demand fact finding through its 
own inaction.  The School Board refers to the long period of 
inaction on this front:  At the close of the impact negotiating 
session on April 10, 2013, the Employer expected the Association 
to return with a proposal.  The Association did not follow up with 
a proposal or request another meeting.  On October 1, 2013, the 
Superintendent received the proposed Memorandum of Agreement, 
which the Superintendent rejected in writing on October 16, 2013.  
No further action was taken until December 6, 2013, when the 
Association submitted its request for mediation.  

     It is well established that, to be effective, a waiver of a 
statutory right must be clear and unmistakable.  State v. Maine 
State Employees Assoc., 499 A.2d 1228, 1232 (Me. 1985).  While a 
lengthy period of inaction may give rise to waiver, the very 
conduct of the Employer in this case belies any notion that the 
Association clearly and unmistakably waived its right to bargain 
over the impact of the change.  Specifically, the Employer went 
ahead and participated in mediation without preserving any 
argument that the Association had waived its right to bargain.  
See AFSCME v. Penobscot County Commissioners, No. 15-14 at 14 
(Jan. 5, 2016) (Union could have preserved right to object to 
employer's conduct).  The School Board has failed to prove by a 
preponderance of the evidence that the Association waived its 

[end of page 13]


right to bargain impact by its own inaction.
      
     The Employer's reliance on Mt. Abram Teachers and Saco Valley 
Teachers is misplaced, as both of those cases dealt with the 
unions' substantial delay in requesting meet-and-consult sessions 
with respect to changes in educational policy.  Mt. Abrams 
Teachers Assoc. v. MSAD No. 58, No. 15-09 at 21 (July 29, 
2015)(delay until eve of implementation of educational policy 
change too late); Saco Valley Teachers Assoc. v. MSAD No. 6, No. 
85-07 at 15-16 (March 14, 1985)(waiting until after educational 
policy change was implemented too late).  As the Board noted in 
Mt. Abram, the statutory purpose of meet and consult is to obtain 
the teachers' input prior to implementing a change in educational 
policy.  No. 15-09 at 22.  Consequently, the delayed meet-and-
consult requests in these cases frustrated this statutory purpose.  
This was the basis of the Board's rulings in both cases, not 
waiver.  Id., Saco Valley at 15-16.

     The fourth defense raised by the School Board is that the 
Association's impact bargaining claim is time-barred under 
§968(5)(B).  The relevant portion of §968(5)(B) states:

     . . . [N]o hearing shall be held based upon any alleged 
     prohibited practice occurring more than 6 months prior 
     to the filing of the complaint with the executive 
     director.

The School Board?s refusal to participate in fact finding occurred 
on October 17, 2014.  The prohibited practice complaint was filed
on March 9, 2015, fewer than six months from the date of the 
alleged violation, and is therefore not time barred.
  
     The fifth defense argued by the School Board is that the 
Association is barred from asserting its impact bargaining claim 


[end of page 14]


through equitable estoppel and laches.  The School Board points to 
no statutory provision granting equitable jurisdiction to the 
Maine Labor Relations Board.  While it is true that the Board has 
a considerable amount of discretion in its remedial authority once 
it has found a violation to have occurred,[fn]3 the Board's authority 
to find that conduct violates the act is limited by the statute.  
In Oxford Hills Teachers Association v. MSAD #17, the Board 
rejected the assertion that the complaint should be dismissed 
because the complainant had engaged in improper behavior, stating,
 
     . . . While this sort of "clean hands" doctrine was 
     cognizable before the chancellor of equity, it is not a 
     defense before the Board.  Pursuant to the mandate of 26 
     M.R.S.A. §968(5), the Board will consider the 
     allegations of both parties' misconduct.  If both 
     parties have violated the Act, we will consider the 
     relationship between such violations, if any, in 
     fashioning remedies.  Sanford Highway Unit of Local 481 
     AFSCME v. Town of Sanford, MLRB No. 79-50, 1 NPER 20-
     10012, slip op. at 16-17 (Apr. 5, 1979), aff'd, 411 A.2d 
     1010 (Me. 1980).

Oxford Hills, No. 88-13 at 6.  The same principles apply today.

     In support of its assertion that equitable estoppel is an 
appropriate defense in the context of a prohibited practice case, 
the Employer cites Teamsters Local 48 v. Town of Oakland, No. 79-67 
(Dec. 30, 1979).  In that case, the union enjoyed the benefits 
of a collective bargaining agreement for a couple of months before 
it took the position that the contract was not signed by an 
authorized union representative.  The Board stated that the union 
should be barred by the principle of equitable estoppel from 
asserting that the executed agreement was not a valid contract.  

[fn]3  See, e.g., City of Bangor v. AFSCME, 449 A.2d at 1129, 1136 (ME 1982)("The
Board has broad discretion in fashioning appropriate relief for the employer's 
prohibited practices . . .") and Minot School Comm. v. MLRB and Minot Educ. 
Assoc., 1998 ME 211 ¶18 ("We acknowledge that the Legislature has given the 
Board broad discretion to fashion remedies for prohibited practices.")
  
[end of page 15]


No. 79-67 at 4.  In a later case, the Board held that a union was 
equitably estopped from repudiating a provision of a ratified 
agreement because the union's membership had "enjoyed the benefits 
of the collective bargaining agreement."  AFSCME v. Cumberland 
County, No. 83-09 at 10 (June 3, 1983).  These two cases are 
merely examples of how the Board, when it is required to interpret 
a contract in order to decide a prohibited practice complaint, 
will apply established principles of contract law, which may 
include equitable estoppel.  Neither case expands the statutory 
authority granted to the Board in §968(5)(C); therefore, this 
defense fails.
  
     The Employer's last defense to its refusal to participate in 
fact finding is based on the Association's failure to provide the 
necessary notice of intent to bargain over matters that would 
require the appropriation of money.  Section 965, subsection 1 
defines collective bargaining and establishes the obligation of 
both the public employer and the union to bargain collectively.  
Part of the statutory obligation is the following 
notice requirement:
 
     Whenever wages, rates of pay or any other matter 
     requiring appropriation of money by any municipality or 
     county are included as a matter of collective 
     bargaining conducted pursuant to this chapter, it is 
     the obligation of the bargaining agent to serve written 
     notice of request for collective bargaining on the 
     public employer at least 120 days before the conclusion 
     of the current fiscal operating budget[.]

     The Employer's description of the purpose of this 
provision and its application is correct.  The required 120-
day notice gives the public employer the opportunity to plan 
for appropriations that might be necessary as an outcome of 

[end of page 16]


bargaining.  If the union does not provide notice 120 days 
prior to the end of the fiscal year, the employer may 
lawfully refuse to bargain over those matters requiring the 
appropriation of money.  Teamsters Union Local 340 v. Town 
of Falmouth, Nos. 79-10 and 79-18 at 5 (June 6, 1979).  The 
Employer may agree to bargain over those matters, however, 
as they become permissive, not mandatory, subjects of 
bargaining due to the failure to provide the 120-day notice.  
Maine Teachers Association v. Saco School Committee, No. 84-10
at 4 (March 9, 1984).  As with all permissive subjects of 
bargaining, it is a refusal to bargain in good faith to 
insist upon keeping a permissive subject on the table at or 
beyond fact finding.  Id.  Finally, the School Board is also 
correct to note that the proposals regarding impact that did 
not involve the appropriation of money continue to remain 
mandatory subjects of bargaining over which the parties must 
bargain.  Teamsters v. Falmouth, No. 79-10 at 5.
  
     In the present case, the Association did not provide 
the requisite 120-day notice prior to filing its request for 
fact finding.  Thus, the School Board was not legally  
obligated to bargain over matters requiring the appropria-
tion of money.  The failure of the Association to provide 
the 120-day notice had no impact, however, on the School 
Board's legal obligation to continue bargaining over non-
monetary issues.  Consequently, to the extent that the 
School Board has refused to participate in fact finding over 
non-monetary issues, it has violated §965(1)(E).

     The School Board's argument that the failure to give 
the 120-day notice is a complete defense to its refusal to 
participate in fact finding is unavailing.  The School Board 

[end of page 17]


argues that all matters that could be addressed were already 
addressed in the 2014-2017 collective bargaining agreement, 
and "there are simply no non-monetary issues that could 
possibly be submitted to the fact finders for impact 
bargaining." Brief at 18.  Because the only possible issue 
that the Union could have submitted to fact finding was a 
monetary issue, the School Board argues, its refusal to 
participate did not violate 965(1)(E).  It is not this 
Board's job to analyze bargaining proposals and speculate on 
what a party might suggest at the bargaining table.  It is 
the purpose of the dispute resolution process to work 
through these issues.  The School Board is entitled to argue 
at the fact-finders' table that there are no non-monetary 
issues left to be bargained, but it cannot lawfully refuse 
to participate in fact finding on that basis.

  Before moving to the remedy for this violation, we make 
a few observations concerning the parties' conduct in this 
case beyond the refusal to participate in fact finding.  We 
note that neither party engaged in conduct that would be 
considered a failure to bargain in good faith under our 
long-standing standard for such cases.  See Waterville 
Teachers Assoc. v. Waterville Board of Educ., No. 82-11 at 4 
(Feb. 4, 1982).  Both parties were entitled to take firm 
positions during bargaining and to reject proposals 
considered to be unacceptable.  Of particular concern to us, 
however, was the protracted process of impact bargaining 
following the initial three meetings in 2013.  Even though 
we rejected the Employer's arguments concerning waiver by 
inaction, we are nonetheless concerned about the exceedingly 
slow pace of bargaining and the Association's long periods

[end of page 18]

 
of silence in this case.  Collective bargaining is best 
served by open and timely communication between the parties, 
rather than operating on the basis of assumptions.
  
     To effectuate the policies of the Act, we will order 
the School Board to cease and desist from refusing to 
participate in fact finding on matters not requiring the
 appropriation of money regarding the impact of the changed 
bus runs.  The Association will have 30 days from the date 
of this order to provide the School Board with a written 
request to initiate fact finding, should it choose to do so.  
A copy of that request, if any, must be filed with the 
Executive Director of this Board so that he may coordinate 
the appointment of a fact-finding panel.  Failure to submit 
a written request within this 30 day period will be deemed a 
waiver of that right.


                            ORDER

     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 MRS §968(5), it is ORDERED:

     That the RSU 3 Board of Directors cease and desist 
     from refusing to participate in fact finding on 
     matters not requiring the appropriation of money 
     regarding the impact of the changed bus runs.
  
     IT IS FURTHER ORDERED THAT the Association will 
     have 30 days from the date of this order to provide 
     the Board of Directors with a written request to 
     initiate fact finding and to file a copy of that 
     request with the Executive Director of the Maine 
     Labor Relations Board.  Failure to submit a written 

[end of page 19]


     request within this 30-day period will be deemed to 
     be waiver of that right.

      
Dated at Augusta, Maine, this 18th day of February 2016
      
      	                        	 		

[end of page 20]