STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 82-24
Issued: May 19, 1982
__________________________________
)
COUNCIL 74, AMERICAN FEDERATION )
OF STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
BOARD OF DIRECTORS, MAINE SCHOOL )
ADMINISTRATIVE DISTRICT NO. 34, )
)
Respondent. )
__________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on December 23, 1981 by Council 74, American Federation of
State, County and Municipal Employees (Union). The Union alleges that the
Board of Directors of Maine School Administrative District No. 34 (School
District) violated 26 M.R.S.A. Section 964(1)(E) by refusing to incorporate
an interest arbitration award in the parties' collective bargaining agreement.
The School District filed a motion to dismiss and an answer to the complaint
on January 11, 1982, denying that it had violated any provision of the
Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et
seq. (Act).
A pre-hearing conference on the case was held on January 25, 1982,
Alternate Chairman Donald W. Webber presiding. On January 25th 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 February 17, 1982, Alternate Chairman
Webber presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Harold S. Noddin. The Union was represented by Field Repre-
sentative H. Ross Ferrell, Jr., and the School District by Francis C. Marsano,
Esq. The parties were given full opportunity to examine and cross-examine
witnesses, introduce evidence, and make argument. Both parties filed post-
hearing briefs, which have been considered by the Board.
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JURISDICTION
The Union is the bargaining agent within the meaning of 26 M.R.S.A.
Section 968(5)(B) for a bargaining unit of bus drivers, custodians, mechanics
and maintenance men employed by the School District. The School District is a
"public employer" as defined in 26 M.R.S.A. Section 962(7).[fn]1 The juris-
diction of the Maine Labor Relations Board to hear this case and render a
decision and order lies in 26 M.R.S.A. Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In March, 1978, the parties executed a collective bargaining agree-
ment with a term of July 1, 1978 to June 30, 1980. The union security clause
in this agreement states:
No present employee shall be required to become a member
of the Union as a condition of his continued employment. Each
employee who on the effective date of this agreement, is a member
of the Union, or who joins thereafter, shall as a condition of
employment, maintain his membership in the Union. Each employee
hired after the execution of this agreement, shall as a condition
of employment become a member of the union within thirty (30) days
after the date of hire and shall maintain his membership in the
Union, however, said employee shall be allowed to withdraw from
such membership within five working days prior to his first an-
niversary date of his employment. If the employee does not elect
to withdraw from membership he shall be required to maintain his
membership. Employees who fail to comply with this requirement
shall be discharged by the Employer, within thirty (30) days after
receipt of written notice to the Employer from the Union.
The clause thus requires that current union members retain their membership in
the Union and that new employees be members of the Union during their first
year of employment, but does not require that non-members of the Union pay any
dues or fees to the Union.
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1. Maine School Administrative District No. 34 encompasses the Towns of
Belfast, Belmont, Morrill, Northport, Searsmont, and Swanville.
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2. In the summer of 1979 the Union told the School District that as a
result of the Law Court's decision in Churchill v. S.A.D. No. 49 Teachers
Association, 380 A.2d 186 (Me. 1977), the union security clause in the
contract was illegal. The Court ruled in Churchill, among other things, that
a union security clause requiring non-members of the Union to pay the
equivalent of union dues to the Union violated legislative policy reflected in
the Act and was null and void. The Churchill case was decided on November 18,
1977, prior to the parties' March, 1978 execution of the 1978-'80 agreement,
but apparently the Union was unaware of the decision until sometime in 1979.
The Union demanded that a new union security clause be negotiated, and
negotiations commenced. The parties were unable to reach agreement on a new
clause, and the Union requested pursuant to 26 M.R.S.A. Section 965(3) that a
fact-finding panel be assigned to the negotiations. A fact-finding panel was
assigned, a hearing was held, and in October, 1979 the fact-finders issued
their report, recommending that the parties agree to a clause requiring that
non-members pay a service fee of 66-2/3% of union dues to the Union. The
School District refused to accept this recommendation, and the parties
apparently talked about going to interest arbitration on the matter. So far
as the record shows, however, a request for interest arbitration was not filed
until about 1 year and 4 months later, in February 1981.
3. In the meantime, in the spring of 1980, the parties began negotiating
for a collective bargaining agreement to succeed the 1978-'80 agreement. The
parties discussed the issue of union security during negotiations, with the
Union proposing that the parties accept the outcome of an interest arbitration
proceeding as a way of getting language for a union security clause. The
School District refused to agree to this proposal, however. On January 27,
1981 the parties executed a new agreement, which has a term of July 1, 1980 to
June 30, 1982. The new agreement contains exactly the same union security
clause as was included in the 1978-'80 agreement. There is no indication in
the 1980-'82 agreement or in anything else in the record that the School
District intended to replace this union security clause with language
formulated by interest arbitrators.
4. Nevertheless, on February 23, 1981 the parties requested pursuant to
26 M.R.S.A. Section 965(4) that an interest arbitration panel be assigned to
hear a controversy. A panel was assigned, a hearing was held in April, 1981,
and an award was issued on June 24, 1981, providing language to the effect
that non-members of the Union shall be required to pay a service fee equal to
75% of Union dues.
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5. On July 29, 1981, a Union representative demanded that the School
District abide by the interest arbitration award and implement the union
security language set forth in the award. In a letter dated August 12, 1981,
the Superintendent of Schools notified the Union that the School District had
voted not to abide by the award. The Union again in November, 1981 demanded
that the School District execute an agreement containing the language from
the award. The School District did not respond, and the Union grieved the
School District's refusal to implement the union security language. On
January 19, 1982 an arbitrator denied the grievance on the ground that it was
an improper attempt to obtain a change in a negotiated contract clause and
therefore was non-arbitrable.
DECISION
At issue is the question whether the School District is required to
implement the interest arbitration award after the parties had already
reached agreement on a contract including a union security provision. The
facts are straightforward: on January 27, 1981 the parties executed a
collective bargaining agreement which contained the same union security clause
included in the predecessor agreement, a clause which the Union apparently
believes is illegal. Nearly one month later, on February 23, 1981, the
parties pursuant to 26 M.R.S.A. Section 965(4) requested interest arbitration
over the issue of union security. An interest arbitration panel held a
hearing and issued an award providing language for a union security clause.
The School District refuses to implement this award.
We hold that the parties' request for interest arbitration on an issue
upon which they had already reached agreement through collective bargaining
was contrary to the intent of Section 965(4) of the Act, and that the award
accordingly is null and void. Neither party is under any obligation to abide
by the terms of the award, and the School District's refusal to do so was
entirely proper. The Union's prohibited practice complaint will be
dismissed. [fn]2
_______________
2. Since we dismiss the complaint on its merits, we need not reach the
question whether the School District's motion to dismiss should be granted.
This motion is based on the fact that the declaration by the person signing
the complaint does not comply with Rule 4.02 of our Rules and Procedures, 12
- 180 CMR Chapt. 4, Section 4.02. We do note that the Union would be very
well advised to follow the plain and simple requirements of our Rules and
Procedures when filing a complaint. Its continued failure to do so will be
grounds for dismissal in future cases.
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The purpose of the Act in general and the interest arbitration provision
in particular is to assist public employers and public employee bargaining
agents in reaching agreement on the terms of collective bargaining agreements.
See, e.g., M.S.A.D. #5 v. M.S.A.D. #5 Teachers Association, 324 A.2d 308, 312
(Me. 1974); City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387,
390-391 n.4 (Me. 1973); Rockland Professional Fire Fighters Association v.
City of Rockland, 261 A.2d 418, 419 (Me. 1970). This intent is reflected
throughout Section 965 of the Act, including subsection (4), the interest
arbitration provision.
Since the intent of Section 965(4) is to provide a procedure for
assisting the parties in reaching an agreement on the terms of their con-
tracts, it follows that when parties have resolved their differences and
executed a contract there no longer is any reason for them to invoke interest
arbitration. Simply put in statutory terms, if the parties do not have a
"controversy" which prevents them from reaching agreement on a term or
provision of their contract, then they are not authorized by Section 965(4)
to seek interest arbitration. Execution of a contract means that the
collective bargaining process over the terms of the contract has come to an
end, that each party must live with the provisions of the contract during the
life of the agreement, and that the statutory right to use interest arbi-
tration to create contractual language no longer exists. If this were not the
case, then considerable instability would be injected into every collective
bargaining relationship, as either party could ultimately seek interest
arbitration anytime it decided that it did not like a provision in its
contract. [fn]3 Such an open-ended right to interest arbitration would also
create undue expense for the State, which is required by Section 965(5) to
bear the costs of interest arbitration when the Maine Board of Arbitration and
Conciliation is used as the interest arbitration panel, as it was in this
case.
In short, we think it obvious that once parties have reached agreement on
the provisions of a contract, they are precluded during the life of the
contract from attempting to change the terms of the contract through interest
arbitration. There are of course two obvious exceptions to this rule, neither
of which is
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3. Section 965(4) states that if the parties do not jointly agree on an
arbitration procedure to resolve their controversy, "then either party
may" request formation of an interest arbitration panel.
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applicable in this case. First, parties may expressly agree during negotia-
tions to be bound by the language imposed by an interest arbitration award,
and then execute a contract embodying their agreements on all other issues.
Cf., Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279,
1281-1282 (Me. 1979). There is no evidence of any such agreement in this
case, however. Indeed, during negotiations for the 1980-82 contract the
School District specifically rejected the Union's proposal that the parties
agree to be bound by an interest arbitration award imposing union security
language. Instead, the parties executed a contract containing the same union
security provision which appeared in the predecessor contract. Since the
School District specifically rejected a proposal that the parties be bound by
an interest arbitration award, we cannot say that the fact that it agreed to
go to interest arbitration after the contract was executed constitutes an
implied agreement to be bound by the award. Apparently the School District
agreed to go to interest arbitration out of an abundance of caution,
incorrectly fearing that a refusal to participate in interest arbitration
would be a violation of the Act. Since the parties had already executed a
contract containing a union security clause, the School District had no
obligation to participate in an interest arbitration proceeding involving that
very same issue.
Second, the parties might ultimately resort to interest arbitration
during the term of their contract if one of the provisions of the contract is
declared illegal in a judicial proceeding. Article XXIV of the 1980-82
contract states that if any portion of the contract is held to be invalid or
unenforceable by any court of competent jurisdiction, the parties "agree to
immediately negotiate a substitute for the invalidated Article, Section or
Portion." Article XXIV is not presently applicable, however, because there
has been no judicial declaration that the union security clause appearing in
the 1980-82 contract and in the preceding agreement is illegal. While the
decision in Churchill v. S.A.D. No. 49 Teachers Association, 380 A.2d 186 (Me.
1977) casts some doubt on the validity of the clause, we cannot say that the
decision constitutes a judicial declaration that the clause is illegal.
One obvious difference between the union security clause in Churchill and the
clause in this case is that the Churchill clause required non-members of the
union to pay 100% of union dues, while the clause in this case does not
require that non-members pay any fee to the Union. Until such time as there
is a judicial decision specifically finding that the parties' union security
clause is invalid, there will be no occasion for the parties to reopen
negotiations and possibly go to interest
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arbitration over the issue of union security.[fn]4
In sum, we conclude that the parties' request for interest arbitration,
filed on February 23, 1981, nearly a month after the parties executed a
contract containing a union security clause, was not statutorily authorized
and therefore was null and void. The resulting award accordingly was not
binding on either party, and the School District lawfully refused to abide by
it. The Union's prohibited practices 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. Section 968(5), it is hereby ORDERED:
That Council 74, AFSCME's prohibited practices complaint,
filed on December 23, 1981 in MLRB Case No. 82-24 is dis-
missed.
Dated at Augusta, Maine, this 19th day of May, 1982.
MAINE LABOR RELATIONS BOARD
/s/______________________________________
Donald W. Webber
The parties are advised of their Alternate Chairman
right pursuant to 26 M.R.S.A.
Section 968(5)(F) to seek a
review by the Superior Court of
this decision by filing a com- /s/______________________________________
plaint in accordance with Rule Don R. Ziegenbein
80B of the Rules of Civil Pro- Employer Representative
cedure within 15 days after
receipt of this decision.
/s/______________________________________
Harold S. Noddin
Employee Representative
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4. Since the parties have not litigated the question of the legality of
their union security clause before us, we have no occasion to decide the
issue. In any event, our decision would not constitute the judicial deter-
mination called for by Article XXIV of the contract.
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