STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-09
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)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
STATE OF MAINE, )
)
Respondent. )
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On October 12, 1979, the Maine State Employees Association ("MSEA") filed
a prohibited practice complaint against the State of Maine ("State"), and a
motion for accelerated action on the case. The State filed its response to
the complaint and a counterclaim against MSEA on October 29, 1979. A motion
to amend the response was filed by the State on October 31, 1979. MSEA filed
an amended complaint on November 2, 1979. A stipulation of many of the facts
of the case was filed by the parties on October 24, 1979.
In light of the allegations contained in the complaint, the Maine Labor
Relations Board ("Board") decided, pursuant to Rule 4.13 of its Rules and
Procedures, 12-180 CMR Chapt. 4 4.13, to expedite the hearing of the case.
A prehearing conference was held October 31, 1979, Alternate Chairman Gary F.
Thorne presiding. On November 2, 1979, Alternate Chairman Thorne issued a
Pre-Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
A hearing on the case was held on November 7, 1979, Chairman Edward H.
Keith presiding, with Don R. Ziegenbein, Employer Representative, and Wallace
J. Legge, Employee Representative. The parties were afforded full opportunity
to introduce evidence and cross-examine witnesses. At the conclusion of the
testimony the parties engaged in oral argument on the issues raised by the
case. Briefs were filed and have been considered by the Board.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this matter, and we conclude that the Board has juris-
diction to hear and render a decision and order in this case as provided in
26 M.R.S.A. 979-H.
FINDINGS OF FACT
1. Complainant MSEA is a state employee organization and a bargaining
agent within the ,meaning of 26 M.R.S.A. 979-H(2). Respondent
State is the public employer within the meaning of 26 M.R.S.A.
979-H(2).
2. MSEA is the certified/recognized bargaining anent for five state
employee bargaining units, including the Administrative Services;
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Operations, Maintenance and Support Services; Law Enforcement
Services; Professional and Technical Services; and Supervisory
Services bargaining units. On May 23, 1979, MSEA and the State
entered into collective bargaining agreements for each of the
five bargaining units. The agreements presently are in effect
and are due by their terms to expire June 30, 1980.
3. On October 10, 1979, MSEA and the State commenced negotiations
for successor agreements for the Administrative; Operations,
Maintenance and Support; Law Enforcement; and Professional and
Technical units. The State proposed 12 ground rules to govern
the conduct of negotiations at the October 10th session. Agree-
ment was reached on 9 of the proposed ground rules, after some
of the proposed rules had been modified. MSEA then proposed
as an additional ground rule that the parties agree that neither
would use a stenographer at the bargaining sessions. The State
rejected this proposed rule, advising MSEA that a secretary from
the Governor's Office of Employee Relations was a member of the
State's bargaining team, and would continue to take stenographic
notes at future bargaining sessions as the State saw fit. The
State informed MSEA that the secretary was not capable of taking
verbatim notes, and that the notes were used for reference pur-
poses. MSEA stated that it would have to tape record the sessions
in order to equalize the situation.
4. Present at the October 10th session as a member of the State's
bargaining team was Judith Gribbin, a secretary in the Governor's
Office of Employee Relations. Gribbin's primary function as a
bargaining team member is to take notes on the main points raised
during negotiations. Gribbin, who has not been trained as a court
reporter, has stenographic skills and uses standard shorthand when
taking notes. She is not capable of taking a verbatim record of
the sessions, and has been instructed by the Director of the Office
of Employee Relations not to attempt to take verbatim notes.
Gribbin took shorthand notes throughout the October 10th bargaining
session.
5. During negotiations between MSEA and the State for the collective
bargaining agreements due to expire June 30, 1980, the State on
occasion had present a secretary who took stenographic notes.
These were non-verbatim notes which sometimes were typed subsequent
to the bargaining session. Only one set of the notes were kept, in
a file in the Office of Employee Relations. The notes are available
for reference by persons who seek to ascertain the intent of particu-
lar provisions in the agreements. These notes have never been pre-
sented in any forum as a verbatim record of the negotiations.
6. MSEA produced a tape recorder at the commencement of the afternoon
session on October 10th. The State declined to agree to the use of
the tape recorder, and a discussion ensued about possible solutions
to the impasse. MSEA proposed that the State provide administrative
leave for an additional qualified person from the MSEA bargaining
units to serve as a stenographer for MS EA. The State rejected this
proposal, stating that it would provide only that administrative
leave which it is contractually obligated to provide. The State
proposed that MSEA substitute for one of its bargaining team members
a person who is capable of taking stenographic notes, hire a steno-
grapher to take notes, or bring in someone from MSEA's staff to take
stenographic notes. MSEA rejected these proposals on the ground that
none of the proposals were feasible. MSEA then presented its initial
proposals to the State, but refused to discuss the proposals while
Gribbin was taking notes. The session concluded with the parties
agreeing to meet for negotiations at 9:00 a.m. the next day.
7. Gribbin was present when the parties met in the morning on
October 11, 1979. The State advised MSEA that it was ready to pro-
ceed with Gribbin taking notes. MSEA advised the State that it was
ready to proceed once Gribbin ceased taking notes. The parties were
unable to reach agreement
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on the presence or absence of Gribbin at the negotiations, and
the session terminated. No further bargaining sessions have
been scheduled for the non-supervisory bargaining unit negotiations.
8. In the afternoon of October 11, 1979, MSEA and the State commenced
negotiations for a successor agreement for the Supervisory Services
bargaining unit. Gribbin was not present. The State explained that
Gribbin was unavailable that afternoon, but that she would be used
as a note-taker at future bargaining sessions, as the State saw fit.
MSEA advised that it would proceed with negotiations so long as
Gribbin was not being used for stenographic note-taking, but that it
would refuse to proceed any time that Gribbin was taking notes.
9. Negotiations for the Supervisory unit then proceeded. The ground
rules for the negotiations were agreed upon, and MSEA presented its
initial proposals. The proposals were reviewed and briefly discussed
by the parties. The session adjourned with the parties agreeing that
the next bargaining session for the Supervisory unit would be held
October 25, 1979.
10. Gribbin was not present at the October 25th bargaining session.
However, at the outset of the session the State introduced Arden
MacKenzie, a secretary in the Office of Employee Relations, stating
that MacKenzie would be taking notes for the State during the session.
The chief negotiator for the State explained that MacKenzie would not be
taking stenographic notes, but that she would use speedwriting techniques.
MacKenzie was not capable, the chief negotiator stated, of taking ver-
batim notes. MSEA reiterated its position on the presence of a note-
taker at bargaining sessions, and would not discuss its proposals while
MacKenzie was present. The State insisted that it had the right to
have a note-taker present during negotiations, and refused to remove
MacKenzie from its bargaining team. The session terminated without any
bargaining on the substantive issues.
11. At the conclusion of the October 25th session, MSEA's chief negotiator
handed the State's chief negotiator a letter requesting, pursuant to
26 M.R.S.A. 979-D(1)(B), a bargaining session within 10 days. The
State refused to schedule another session, on the ground that MSEA was
refusing to bargain when the State's note-taker was present. No further
bargaining sessions for the Supervisory unit have been scheduled.
12. MacKenzie is a member of the State's bargaining team. Her primary
function as a member of the team is to take notes. She cannot take
shorthand, but does utilize speedwriting symbols for taking notes.
As was the case with Gribbin, MacKenzie during the prior negotiations
with MSEA attempted to record the gist of the major points discussed
by the parties. She is not capable of taking a verbatim record of the
negotiations.
DECISION
MSEA charges that the State violated 26 M.R.S.A. 979-C(1)(E) by a)
insisting to impasse on the use of a stenographer and b) refusing to meet for
bargaining within 10 days after receipt of a Section 979-D(1)(B) notice. The
State urges that none of its actions constitute violations of the statute, and
alleges in its counter-claim that MSEA violated 26 M.R.S.A. 979-C(2)(8) by
insisting to impasse that the State cease using a member of its bargaining
team to take non-verbatim reference notes.[fn]1
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1 The State also alleges in its counter-claim that MSEA violated Section 979-C
(2)(A) by attempting to dictate the composition of the State's bargaining
team. This allegation is not pursued by the State in its brief, however.
Our practice is to treat allegations not argued on brief as being withdrawn.
See, e.g., Teamsters Local 48 v.. University of Maine, M.L.R.B. No. 70-37 at 4,
fn.2 (1979). We note that the allegation is not supported by the evidence in
any event.
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As discussed more fully below, we find that MSEA committed a technical
violation of Section 979-C(2)(B) by insisting to impasse that the State cease
using Gribbin and MacKenzie to take notes during bargaining sessions, and that
the State violated Section 979-C(1)(E) by refusing to honor the ten-day
notice. We will order remedies necessary to effectuate the policies of the
State Employees Labor Relations Act, 26 M.R.S.A. 979, et seq. ("Act").
1. The parties' insistence to impasse. Each party urges that the other
unlawfully insisted to impasse on the issue whether Gribbin and MacKenzie
could take notes during bargaining sessions. It is plain that the parties
were at impasse on this issue; the parties discussed the issue at the first
bargaining session on October 10, 1979, at the October 11th session, and again
on October 25th, without reaching a resolution of the issue. It is also plain
that the parties were equally adamant on their respective positions; the State
insisted that it would continue to use Gribbin and MacKenzie to take notes,
while MSEA insisted that its proposed ground rule prohibiting the use of
stenographers to take notes be accepted.
The law is well-settled that a party commits a per se violation of the
duty to bargain by insisting to impasse that a non-mandatory subject of
bargaining be negotiated. See, e.g., N.L.R.B. v. Wooster Division of Borg-
Warner Corp., 356 U.S. 342 (1958); Teamsters Local 48 v. Town of Falmouth,
MLRB Nos. 79-10 and 79-18 at 6-7 (1979). The rationale underlying this
venerable labor law principle is that insistence upon bargaining over non-
mandatory subjects of bargaining "is, in substance, a refusal to bargain about
the subjects that are within the scope of mandatory bargaining." 356 U.S. at
349.
The mandatory/non-mandatory analysis set forth in Borg-Warner has been
applied by the National Labor Relations Board ("N.L.R.B.") and by this Board
to preliminary issues arising prior to the commencement of substantive nego-
tiations. Bartlett-Collins Co., 237 NLRB No. 106, 99 LRRM 1034 (1978); Board
of Directors of M.S.A.D. No. 24 v. Van Buren Custodian/Bus Driver/Maintenance
Personnel Association, MLRB No. 79-16 (1979). Application of the analysis to
these preliminary matters is justified on the ground that, since labor boards
have the statutory responsibility to foster and encourage meaningful
collective bargaining, "we would be avoiding that responsibility were we to
permit a party to stifle negotiations in their inception over . . . a
threshold issue." 99 LRRM at 1036 (footnote omitted).
The mandatory subjects of bargaining about which a party is obligated to
bargain, and about which a party may lawfully insist on bargaining to impasse,
are of course those subjects involving "wages, hours, working conditions and
contract grievance arbitration." 26 M.R.S.A. 979-D(1)(E)(1). The issue
whether a party may, or may not, use a stenographer to take notes during
bargaining sessions plainly does not involve "wages, hours, working conditions
and contract grievance arbitration," and consequently is not a mandatory
subject of bargaining. Insistence to impasse on this non-mandatory subject
is, under the Borg-Warner, Bartlett-Collins, and Van Buren holdings, a per se
violation of the duty to bargain, found in Sections 979-C(1)(E) and
979-C(2)(B).
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Since both of the parties insisted to impasse on their respective
positions, the question presented for our determination is which party's
insistence was unlawful. This is a question of some difficulty. We start
with the proposition that the specific holdings in Bartlett-Collins, Van
Buren, and in Quamphegan Teachers Association v. Board of Directors S.A.D.
No. 35, PELRB No. 73-05 (1973), are not applicable to the facts of this case.
The N.L.R.B. in Bartlett-Collins held that insistence to impasse on using a
court reporter to make a verbatim record of the negotiations constituted a
per se violation of the duty to bargain. We reached a similar conclusion in
Van Buren, which involved insistence to impasse on using a tape recorder to
record the negotiations. In Quampheqan Teachers, we indicated that insistence
to impasse on "the use of a stenographer . . . to create a verbatim
transcript" of negotiations would constitute a per se violation.
The common thread running through these three holdings is that insistence
to impasse on making a verbatim record of negotiations is a violation of the
duty to bargain. The detrimental effect on negotiations caused by the making
of a verbatim record is well-documented. See the authorities cited in
Bartlett-Collins, 99 LRRM at 1036, fn.9. Suffice it to say that the making
of a verbatim record frequently inhibits free and open collective bargaining
by causing parties to "speak for the record" rather than engaging in serious
bargaining. Because of this detrimental effect on negotiations, the labor
boards have, consistent with their responsibility to encourage and promote
meaningful collective bargaining, long frowned on attempts by a party to
negotiations to make verbatim records of the bargaining.
The attempt to make a verbatim record is not present in the instant case,
however. The evidence stands uncontradicted that neither Gribbin nor
MacKenzie possessed sufficient stenographic skills to take verbatim
notes.[fn]2 Gribbin had also been specifically instructed not to attempt to
make a verbatim record. Testimony by both the secretaries that they were
merely trying to note the main points raised during negotiations has not been
challenged by MSEA.
Nor does the evidence show that the State attempted to lead MSEA into
believing that the State intended to make a verbatim record. At the first
bargaining session on October 10, 1979, the State assured MSEA when MSEA
raised the issue that the State would be taking non-verbatim notes for
reference purposes only. Nor were the stenographic notes taken by the State
during the previous negotiations between the parties ever presented as a
verbatim record of negotiations in any forum. In short, while MSEA may have
thought that the State was attempting to make a verbatim record of the
bargaining, its position that verbatim notes were being recorded is refuted
by the facts. Since the State was not attempting to
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2 It thus is unnecessary to decide whether Gribbin and MacKenzie may be more
appropriately called "stenographers" or "secretaries." Assuming that they
may be called "stenographers," the fact remains that they were unable to
record the bargaining verbatim.
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make a verbatim record, the many cases involving verbatim transcripts are not
controlling.
While the State was not attempting to take a verbatim record of nego-
tiations, its insistence on note-taking would nonetheless constitute a per se
violation of its duty to bargain if the note-taking could reasonably be said
to have an inhibiting, slowinq or hindering effect on the bargaining process.
In Quamphegan Teachers, at 4, we concluded:
"a party . . . [may not] be allowed to frustrate negotiations
. . . by insisting on certain procedural points which will
result in a slowing, retarding or hindering of the implementation
of negotiations."
We thus determined in Quamphegan Teachers that conducting bargaining sessions
in public inhibits and hinders bargaining, and held that insistence to impasse
on negotiating in public constitutes a violation of the duty to bargain.
To determine which of the parties unlawfully insisted to impasse, then,
we must decide whether the State's note-taking can reasonably be said to slow
or inhibit negotiations.[fn]3 If such is the effect of the note-taking, then
the State by insisting to impasse that it would continue to take notes
committed a per se violation of Section 979-C(1)(E). If, on the other hand,
the note-taking cannot reasonably be said to have any hindering effect on
negotiations, then MSEA by insisting to impasse that the note-taking cease
unlawfully stifled negotiations, in per se violation of Section 979-2(C)(B).
After carefully considering the question, we must conclude that the
State's use of Gribbin and MacKenzie to take notes cannot reasonably be said
to inhibit, slow or hinder negotiations. The record shows that Gribbin and
MacKenzie, who were duly designated members of the State's bargaining team,
had been instructed to attempt to note the "gist" or the main points raised
during negotiations. We conclude that the simple act of taking such notes is
not unduly inhibitory of the bargaining process. Indeed, such note-taking is
commonly thought to be an essential part of the bargaining process:
"While making a verbatim transcript of bargaining sessions
is frowned upon and may constitute an unfair labor practice,
keeping accurate minutes of bargaining sessions is considered
essential by most practitioners. As Edward B. Shils and C.
Taylor Whittier have observed,
"It is very important that the . . . negotiating team have a
resource person who is familiar with the problems and the
subject matters being discussed so that he can keep a running
record of questions and answers as well as issues settled.
These minutes should be reviewed before each new session.
They are important records . . .
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3 This decision requires an application of our knowledge, experience, and
judgment in the field of collective bargaining. Application of these same
factors also is required when we decide whether a party has engaged in bad-
faith bargaining. See, e.g., Sanford Highway Unit v. Town of Sanford,
M.L.R.B. No. 79-50, aff'd, Nos. 79-171, et al. (York County Super. Ct.
Aug. 30, 1979).
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". . . a good fast writer, or a team member blessed
with stenographic skills, is most valuable in taking
notes that can be used by joint subcommittees charged
to draft language and to iron out problems of wording
and intent. These notes will be worth their weight
in gold when the school board attorney meets with his
opposite number to write the final language of the
contract: one side or the other may make charges that
the language of the final draft is different from
understandings reached at the bargaining table. E.
Shils & C.T. Whittier, Teachers, Administrators, and
Collective Bargaining 400 (1968)."
R. Smith, H. Edwards, R. Clark, Jr., Labor Relations in the Public Sector 593-
94 (1974).
The N.L.R.B. has thus ruled that the taking of "extensive notes" during
negotiations is proper. Charles L. Honaker, 147 NLRB 1184, 1194 (1964).
We conclude that the fact that the secretaries utilized shorthand or speed-
writing techniques instead of longhand does not mean that the note-taking was
improper, in the absence of evidence that the secretaries were attempting to
make a verbatim record.
The evidence also does not show that the manner in which the secretaries
took their notes unduly disrupted or interfered with negotiations. We can
envision a situation, for example, where the note-taker might repeatedly ask
the chief spokespersons to slow down, or constantly request that exchanges of
positions be repeated, or engage in some other disruptive activity. Such is
not the case here, however, for the record contains no instances of any dis-
ruptive activity by the State's note-takers.
In reaching our decision, we do not overlook the fact that two members of
MSEA's bargaining team testified that they felt inhibited by the State's use
of Gribbin and MacKenzie to take notes. The question we must decide is
whether these feelings of inhibition were reasonable, in light of all of the
facts of the case. We conclude that these feelings were not reasonable.
A negotiator may feel inhibited or hindered by any action at the bargain-
ing table which he/she disagrees with or does not like. Such feelings do not
necessarily mean that the action in question is improper, however. For
example, one may feel inhibited by the physical presence of an opposing
negotiator. Such feelings would not ipso facto mean that the opposing
negotiator was acting improperly, of course, in the absence of evidence
showing actions which disrupt or hinder bargaining. We have noted in many
cases that collective bargaining, while a fragile process, does not take place
in a vacuum, free from pressures and interruptions. See, e.g., Sanford School
Committee v. Sanford Teachers Association, MLRB No. 78-34 at 4 (1978). It
thus is unrealistic for a negotiator to expect all pressure and inhibitions
to be removed once he/she sits down at the bargaining table. So long as the
action complained of does not unduly inhibit or hinder negotiations, the
objecting negotiators must accept the action as a part of the bargaining
experience.
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We recognized that a negotiator might feel somewhat disconcerted by the
fact that, as soon as he/she started speaking, a member of the opposing
bargaining team commenced taking notes. As previously indicated, however,
we believe that note-taking is an essential part of bargaining. Moreover, it
cannot be said from an objective viewpoint that the note-taking in this case
inhibited or hindered negotiations. If a negotiator feels disconcerted by
some necessary part of the bargaining process, then he/she has the choice of
learning to live with the process or removing him/herself from the bargaining
team. Since the State's note-taking does not unduly inhibit or hinder
negotiations, we cannot allow MSEA's feelings of inhibition to override the
right of the State to use a stenographer to take notes.
MSEA, citing a footnote in Bartlett-Collins, urges that it cannot be
found in violation of the Act for its insistence to impasse because it put
forth several proposals which could have resolved the impasse. The evidence
shows that MSEA proposed that it would use a tape recorder to record nego-
tiations, or that the State provide administrative leave for an additional
qualified state employee to serve as MSEA's stenographer. This argument is
not persuasive because the State also demonstrated a willingness to compromise
on the issue, proposing that MSEA substitute for one of its bargaining team
members a person capable of taking stenographic notes, hire a stenographer to
take notes, or bring in a secretary from MSEA's staff to take notes.
In short, both parties suggested reasonable solutions to the impasse, and
each remained equally adamant on their position when the other party did not
accept the proposed solutions.[fn]4 Unlike the facts in Bartlett-Collins,
then, it was not the employer's conduct alone which was responsible for the
bargaining impasse. MSEA by insisting that its ground rule be accepted was
equally responsible for the impasse.
Having concluded that the State's use of the secretaries to take notes
cannot reasonably be said to inhibit or hinder negotiations, we find that
MSEA's insistence to impasse that the note-taking cease constitutes a per se
violation of Section 979-C(2)(B). The note-taking was proper. We think that
MSEA's insistence improperly blocked negotiations. Its insistence that its
ground rule prohibiting the use of the secretaries be accepted is somewhat
understandable, however, because of the confusion which may have been
engendered by the Bartlett-Collins and Van Buren decisions. We accordingly
consider the violation to be a mere technical violation, and will issue
pursuant to Section 979-H(3) only a narrow cease and desist order.
2. The State's refusal to honor the ten-day notice. The State clearly
committed a per se violation of Section 979-C(1)(E) when it refused to honor
the ten-day notice tendered by MSEA at the conclusion of the October 25th
bargaining
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4 In our opinion, some of the solutions to the impasse proposed by the parties
could have resolved the impasse in a sensible and responsible fashion. We are
dismayed that the parties lacked sufficient maturity and good will to resolve
this case on their own, without resort to this Board.
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session. We strictly construe the ten-day notice provisions in our labor
relations statutes, found in Section 979-D(1)(3) of the Act. See, e.g.,
M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No. 43 Board of Directors,
M.L.R.B. No. 70-42 ( 1979). Even when the parties are at impasse, they
should meet at least one more time if either tenders a ten-day request:
". . . the invoking of impasse resolution procedures should
[not] sidetrack the statutory obligation . . . to meet within
a 10 day period after receipt of written notice from the other
party to the negotiations."
M.S.A.D. #54 Education Association and M.S.A.D. #54 Board of Directors,
M.L.R.B. Interpretative Ruling at 2 (Feb. 11, 1976). Thus, in East
Millinocket Teachers Association v. East Millinocket School Committee,
M.L.R.B. No. 79-24 at 6 (1979) we held:
". . . it would be safer and wiser for a party to meet when
requested even if it has doubts about the duty to meet . . .
[A] party should . . . not lightly undertake the decision
to refuse to meet when requested by a 10 day letter."
We recognize that our rule requiring parties to meet after impasse under
a ten-day request may not be entirely consistent with N.L.R.B. law. However,
the National Labor Relations Act contains no provision similar to the ten-day
notice provisions found in our labor relations acts. Our Legislature has
expressly and unequivocally stated in all three of our labor relations laws
that parties are obligated to meet within ten days after receipt of written
notice. This requirement has had a positive effect on labor relations in
Maine, as experience has shown that parties frequently make progress in
negotiations when meeting pursuant to a ten-day request, even when the parties
previously were at impasse. In light of these circumstances, we believe that
our rule requiring parties at impasse to meet at least one more time pursuant
to a ten-day notice is justified.
The State accordingly was obligated by Section 979-D(1)(B) to meet with
MSEA within ten calendar days after the October 25th receipt of the ten-day
letter. We will order the State to cease and desist from refusing so to meet.
ORDER
On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 979-H, it is ORDERED:
1. That the Maine State Employees Association, and its agents
and members, cease and desist from insisting that the State
of Maine cease using Judith Gribbin and Arden MacKenzie to
take notes at bargaining sessions.
2. That the State of Maine, and its representatives and agents,
cease and desist from refusing to meet for collective bar-
gaining purposes with the Maine State Employees Association
within ten calendar days after receipt of a written request
to meet.
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3. That the Maine State Employees Association and the
State of Maine take the affirmative action of com-
mencing negotiations as soon as practicable for
successor collective bargaining agreements for the
five state employee bargaining units represented
by the Maine State Employees Association.
Dated at Augusta, Maine, this 5th day of December, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Wallace J. Legge
Employee Representative
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