STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 82-11
ISSUED: February 4, 1982
________________________________
)
WATERVILLE TEACHERS ASSOCIATION, )
Timothy Dial, President, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
WATERVILLE BOARD OF EDUCATION, )
Edward White, Superintendent, )
)
Respondents. )
_________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on September 30, 1981 by the Waterville Teachers Association and
its President, Timothy Dial (Association). The Association alleges that the
Waterville Board of Education and Superintendent of Schools Edward White
(Board of Education) violated 26 M.R.S.A. 964(1)(A-E) by bargaining in bad
faith. The Board of Education filed a response on October 13, 1981, denying
that its actions constitute violations of the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A. 961, et seq.
A pre-hearing conference on the case was held on October 26, 1981,
Alternate Chairman Donald W. Webber presiding. On October 29, 1981 Alternate
Chairman Webber 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 December 9, 1981, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. The Association was represented by
F. Stewart Kinley and the Board of Education by George F. Terry, IV, Esq.
The parties were given full opportunity to examine and cross-examine wit-
nesses, introduce evidence, and make argument.
JURISDICTION
The Association is the bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for a bargaining unit of certified professional employees employed
by the
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Board of Education. The Board of Education and Superintendent of Schools
Edward White are "public employers" as defined in 26 M.R.S.A. 962(7).
The jurisdiction of the Maine Labor Relations Board to hear this case and
render a decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. On December 2, 1980, the parties began negotiations for a collective
bargaining agreement to succeed an agreement with a term of September 1, 1977
to August 31, 1981. The Board of Education's written proposals to amend the
contract state that all changes proposed by the Board of Education's
bargaining team are tentative and that any agreement by the bargaining team is
subject to ratification by the full Board of Education. During negotiations,
the Board of Education negotiators had to check with the Board of Education to
see if the negotiators were within their guidelines before making tentative
agreements on several issues.
2. One issue discussed by the parties was an Association proposal to
equalize the salaries of girls' and boys' coaches who coach comparable sports,
and to give all coaches an increase in salary. The Association felt that
disparities in the pay of girls' and boys' coaches who coached comparable
sports might amount to unlawful discrimination in employment on the basis of
sex. At a February 20, 1981 bargaining session, the parties tentatively
agreed that a 10% increase in money for extracurricular salaries would be
granted, with the distribution of this money among the various extracurricular
positions to be determined at a later date.
3. At a bargaining session held on March 27, 1981, the Association
provided a list of the coaching positions which is proposed to equalize, and
pointed out that a 10% increase in money for extracurricular salaries would
not provide enough money to equalize the coaches' salaries and also provide
for a salary raise for the coaches. The Association accordingly proposed that
the salaries first be equalized and that the coaches then be given a 5% raise.
The Board of Education negotiators said they would seek Board of Education
approval of this proposal.
4. On April 22, 1981, the Board of Education negotiators said the Board
of Education would not increase the 10% in new money negotiated for extra-
curricular salaries. The parties then discussed the Association's proposed
comparisons between
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coaching positions, and the Association agreed to drop its proposal to make
the field hockey coaches' salaries equal with the football coaches' salaries.
The dropping of this proposed comparison meant that there was then enough
money to equalize the salaries of the remaining positions and to give a salary
increase to the coaches. The Association accordingly proposed that the
salaries of the girls' basketball, soccer, and softball coaches be increased
to equal the salaries of the boys' coaches in comparative sports, and that the
remaining money be divided proportionally among all coaching positions. The
Board of Education negotiators said that the proposal was acceptable to them
and that they would take it to the Board of Education for ratification.
5. The Association bargaining team assumed the Board of Education would
ratify the extracurricular salaries proposal and, since extracurricular
salaries was the last unresolved issue, thought that the parties had a new
contract. On May 4, Association members voted to ratify the new contract.
6. The Board of Education voted on May 4 not to accept the Association's
extracurricular salaries proposal, however, because some of its members
objected to making the girls' and boys' basketball coaches' salaries equal.
The Board of Education member on the bargaining team was among those voting
against the proposal. The Board of Education decided to counterpropose that
the girls' JV and varsity basketball coaches' salaries be increased 10%, that
the salaries of the other coaches be equalized as proposed by the Association,
and that the remaining money be divided equally among all positions.
7. Association representatives and the Superintendent met to discuss the
contract on May 6, 1981. The Superintendent said that the Board of Education
was not ready to move from its position, and the Association agreed to accept
the counterproposal, stating in writing that it continued to maintain its
position that equal salaries should be paid to the girls' and boys' basketball
coaches, and that it appeared that agreement on the Board of Education's
position was the only way to reach final agreement on a contract. The City
Council's final reading of the City budget was scheduled for May 15, 1981, and
the Association was afraid that unless the parties reached final agreement
prior to the 15th, it would lose the salary increases that had been negotiated
if the budget was cut. Both parties ratified the new contract by May 14,
1981.
8. Subsequent to ratification of the contract, a girl's basketball coach
at Waterville filed a complaint with the Maine Human Rights Commission,
alleging discrimination in employment on the basis of sex.
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DECISION
A bad faith bargaining charge requires that we examine the totality of
the charged party's conduct and decide whether the party's actions during
negotiations indicate "a present intention to find a basis for agreement."
NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th Cir. 1943); see also
Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279,
1282-1283 (Me. 1979). Among the factors which we typically look to in making
our determination are whether the charged party met and negotiated with the
other party at reasonable times, observed the groundrules, offered counter-
proposals, made compromises, accepted the other party's positions, put
tentative agreements in writing, and participated in the dispute resolution
procedures. See, e.g., Fox Island Teachers Association v. MSAD #8 Board of
Directors, MLRB No. 81-28 (April 22, 1981); Sanford Highway Unit v. Town of
Sanford, MLRB No. 79-50 (April 5, 1979). When a party's conduct evinces a
sincere desire to reach an agreement, the party has not bargained in bad faith
in violation of 26 M.R.S.A. 964(1)(E) unless its conduct fails to meet the
minimum statutory obligations or constitutes an outright refusal to bargain.
The Association charges that the Board of Education's bad faith
bargaining is shown by the following facts: 1) its insistence that the
Association agree to a discriminatory pay provision, 2) its "eleventh hour
change in position," 3) the lack of authority of its bargaining team, and 4)
that the Board of Education member of the bargaining team voted against the
tentative agreement on coaches salaries on May 4, 1981. We conclude that the
record falls far short of showing that the Board of Education bargained in bad
faith, and accordingly will dismiss the Association's prohibited practices
complaint.
The record contains overwhelming evidence that the Board of Education
bargained with a sincere intent to reach agreement on all issues. The Board
of Education met and negotiated at reasonable times, offered proposals and
counterproposals, made compromises and accepted the Association's position on
a number of issues, observed the groundrules, incorporated the parties'
tentative agreements in written minutes, and reached agreement with the
Association on all issues. Indeed, in examining the record we do not find
the slightest indication that the Board of Education did not desire to reach
agreement.
Several of the "facts" which the Association asserts show that the Board
of Education bargained in bad faith simply are not supported by the record.
For
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example, the Board of Education did not insist that the Association accept the
alleged discriminatory coaches' salary proposal; the Association voluntarily
agreed to that proposal on the same day that it was proposed, in order to
insure that negotiated salary increases would not be lost if the City Council
cut the budget. While the Association did not like the proposal and felt
pressured by the fact that the final reading of the budget was imminent, it
could have refused to accept the proposal, attempted to negotiate an
alternative proposal, or initiated the dispute resolution procedures provided
by 26 M.R.S.A. 965. In light of the facts of the case, we do not see any
basis for saying that the Board of Education insisted on the proposal; the
Association plainly agreed to the proposal out of its own free will after
weighing its priorities.[fn]1
Similarly, the record shows no "eleventh hour change in position" by the
Board of Education. The Board of Education negotiators, following the
procedure that had been used throughout negotiations, accepted the Associa-
tion's coaches' salaries proposal on April 22, 1981, and said that the
proposal would be presented to the Board of Education for ratification.
On May 4, the Board of Education refused to accept the proposal and decided
to make a counterproposal. Since the Board of Education had not considered
the Association's April 22nd proposal prior to May 4th, and no direct
representations had been made to the Association that the Board of Education
would accept the proposal, the Association's "assumption" that the proposal
would be ratified was wholly unjustified. While the proposal was acceptable
to the Board of Education's negotiators, the Board of Education was not bound
to adopt the proposal because its right to ratify had properly been reserved,
and implicit in the right to ratify is the right to reject. Biddeford Unit of
Local 1828 v. City of Biddeford, PELRB No. 75-33 (Dec. 10, 1975). In short,
there is no evidence of any improper change of position by the Board of
Education.
Equally unwarranted is the Association's claim that the Board of Educa-
tion negotiators were not vested with sufficient bargaining authority. The
negotiators were clothed with sufficient knowledge, guidelines and authority
to make tentative agreements subject to ratification by the full Board of
Directors, and, as we have
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1. The question whether the coaches' salary provision is discriminatory
or not has no bearing on our holding for, regardless whether the provision is
unlawful or not, the record shows that the Association voluntarily agreed to
it.
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held in many cases, such bargaining authority comports fully with the law.
See, e.g., Fox Island Teachers Association, supra. The fact that the nego-
tiators had to check with the Board of Education before making tentative
agreements on several issues does not alter our conclusion. Since the nego-
tiators made tentative agreements on most issues without first checking with
the Board of Education, the evidence falls for short of showing that the
negotiators were improperly acting as mere conduits or messengers between the
Board of Education and the Association's bargaining team. We conclude that
the Board of Education negotiators were clothed with sufficient authority
throughout these negotiations.
The only piece of evidence which supports the Association's bad faith
bargaining claim is the fact that the Board of Education member who sat on
the bargaining team voted against the Association's proposal on May 4.
A negotiator's failure to support a tentative agreement when the agreement is
being considered by the principal party is evidence of bad faith bargaining;
a negotiator should not waste time and delay agreement on a contract by making
a tentative agreement which he/she cannot support before the principal party.
Biddeford Unit of Local 1828, supra. In weighing this evidence of bad faith
bargaining against the massive evidence that the Board of Education bargained
in good faith, however, we cannot conclude that the totality of the Board of
Education's conduct warrants a finding of bad faith bargaining. While the
negotiator's failure to support the agreement was improper, this conduct was
not so egregious as to override the considerable evidence of good faith
bargaining. Fox Island Teachers Association, supra. Viewing the totality of
the evidence, we must conclude that the Board of Education bargained in good
faith in this matter. The Association's prohibited practice complaint is
meritless and will be dismissed.
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. 968(5), it is hereby ORDERED:
That the Waterville Teachers Association's and Timothy Dial's
prohibited practices complaint in this proceeding is hereby
dismissed.
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Dated at Augusta, Maine this 4th day of February, 1982.
MAINE LABOR RELATIONS BOARD
/s/_________________________________
Edward H. Keith
Chairman
/s/__________________________________
Don R. Ziegenbein
Employer Representative
/s/__________________________________
Harold S. Noddin
Alternate Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968
(5)(F) to seek review of this decision by the Superior Court by filing a
complaint in accordance with Rule 808 of the Rules of Civil Procedure within
15 days after receipt of this decision.
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