STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-01
Issued: October 11, 1984
________________________________
)
GRAY-NEW GLOUCESTER TEACHERS )
ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MSAD #15 BOARD OF DIRECTORS, )
et al., )
)
Respondents. )
________________________________)
The question presented in this prohibited practices case is
whether the MSAD #15 Board of Directors, et al., (Directors) violated
26 M.R.S.A. Section 964(l)(E)(1974) by refusing to bargain about a
merit pay plan instituted for teachers by the Directors. We find that
the Directors were not obligated to bargain about the pay plan because
the union waived its right to bargain about pay increases for indi-
vidual teachers in its collective bargaining agreement with the
Directors. We therefore will grant the Directors' motion to dismiss
the complaint.
The Gray-New Gloucester Teachers Association (Association) filed
its complaint on June 28, 1984, alleging that the Directors had
refused to negotiate about a merit pay plan approved by the Directors
for teachers. The Directors filed a response and a motion to dismiss
on July 19, 1984, urging that the Association waived its right to
bargain about the merit pay plan during the term of the collective
bargaining agreement by agreeing to certain contractual language.
The Association filed an addendum to its complaint on September 12,
1984.
A pre-hearing conference on the case was held on September 10,
1984, Alternate Chairman Donald W. Webber presiding. Alternate
Chairman Webber issued on September 10 a pre-hearing conference
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memorandum and order, the contents of which are incorporated herein by
reference.
A hearing was held on September 13, 1984, Alternate Chairman
Webber presiding, with Employer Representative Thacher E. Turner and
Alternate Employee Representative Russell A. Webb. The Association
was represented by UniServ Director George Luse and the Directors by
Hugh MacMahon, Esq.
JURISDICTION
The Association is the "bargaining agent" within the meaning of 26
M.R.S.A. 968(5)(B)(Supp. 1983-84) for a bargaining unit of certified
professional employees employed by the Directors. The M.S.A.D. #15
Board of Directors is a "public employer" as defined in 26 M.R.S.A.
962(7)(Supp. 1983-84). The jurisdiction of the Maine Labor Relations
Board to hear this case and render a decision and order lies in
Section 968(5)(B).
DECISION
Presented for decision initially is the question whether the
Directors' motion to dismiss for failure to state a claim should be
granted. We of course accept all allegations in the complaint as true
for purposes of deciding the motion. See, e.g., McNally v. Town of
Freeport, 414 A.2d 904, 905 (Me. 1980).
According to the allegations in the complaint and the addendum, in
April 1984 a majority of the Board of Directors voted to set aside
$10,000 from the school district's contingency fund to use at the
Directors' discretion to reward meritorious performance by selected
teachers. In May 1984 the president of the Association presented the
Directors with a ten-day notice to bargain pursuant to 26 M.R.S.A.
965(1)(B)(1974), requesting "to negotiate the issue of merit pay."
In a May 23 letter to the President, the Superintendent of Schools
refused to bargain about the merit pay proposal on the ground that it
"is covered under the current contract in Part II, Article 1B."
On August 15, 1984, a majority of the Directors voted to implement a
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proposal prepared by district administrators for selecting the
teachers who will receive the merit,pay awards. According to repre-
sentations made at the hearing, 20 to 25 teachers will be selected to
receive the awards, with the award to each teacher being either $250
or $500. A collective bargaining agreement with a term of
September 1, 1983 to August 31, 1985 is in effect between the parties.
Article 1B of Part II of the agreements states:
"All salaries and stipends contained in this contract
are recognized to be minimum salaries and stipends.
Additional sums may be paid to individual teachers
at the discretion of the Board of Directors."
The Directors concede that merit pay plans are mandatory subjects
of bargaining and that unilateral implementation of such a plan during
the term of a contract would violate its duty to bargain unless the
bargaining agent has waived its right to bargain about the plan.
The Directors urge, however, that the Association clearly waived its
right to bargain about the plan by agreeing to the language contained
in Article 1B. We have of course discussed the duty to bargain during
the term of a contract and the question of waiver on numerous occa-
sions. The rule we follow is that "[t]he duty to bargain 'as to sub-
jects which are neither discussed nor embodied in any of the terms and
conditions of the contract' continues throughout the term of the
contract." MSEA v. State of Maine, MLRB No. 84-19 at 9 (July 23,
1984), quoting NLRB v. Jacobs Mfg. Co., 196 F.2d 680, 684 (2nd Cir.
1952). A party may waive its right to bargain about a particular sub-
ject during the term of the contract by agreeing to specific contrac-
tual language, and we apply the "clear and unmistakable" standard when
determining whether such waiver has occurred: "waiver of the statu-
tory right to bargain in a management rights clause, zipper clause, or
other waiver clause must be 'clear and unmistakable."' Auburn Fire-
fighters Association v. Morrison, MLRB No. 83-10 at 6 (March 9, 1983).
The question thus becomes whether the language of Article 1B evinces a
clear and unmistakable waiver by the Association of its right to
bargain about the merit pay plan.
We find that such a waiver has occurred. The first sentence of
Article 1B provides that all salaries and stipends set forth in the
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contract are minimum amounts. The second sentence then states that
additional sums may be paid to individual teachers at the discretion
of the Directors. The merit pay plan adopted by the Directors clearly
falls within the sweep of this broad language; the plan proposes to
select 20 to 25 teachers who will receive merit pay awards of either
$250 or $500. By agreeing that the Directors may in their discretion
pay additional sums to individual teachers during the term of the
contract, the Association has clearly and unmistakably waived its
right to bargain about the Directors' plan to do just that. Because
the Association has waived its right to bargain about the merit pay
plan, the Directors were not obligated to bargain about the plan
before it was unilaterally adopted, and the Association's complaint
fails to state a claim. The Directors' motion to dimiss must there-
fore be granted.
The Association's argument that we should deny the motion and take
evidence on the Association's intent when it entered into Article 1B
runs afoul of the parol evidence rule:
". . . where the instrument appears on its face to
integrate completely the understanding of the par-
ties, and does so in unambiguous language, the
intent of the parties is established by the instru-
ment alone, so that . . . parol evidence may not be
introduced over objection to prove that the language
should be understood as having some extraordinary
meaning."
Roth v. Malmsten, 387 A.2d 234, 235 (Me. 1978); see also Lewiston
Firefighters Association v. City of Lewiston, 354 A.2d 154, 163 (Me.
1976). The agreement between the Association and the Directors is a
detailed, specific agreement which completely covers all of the major
topics ordinarily included in teacher collective bargaining agree-
ments. Neither party alleges that this agreement is not their final,
complete agreement on each topic addressed. We therefore find that
the parties' agreement is a completely integrated agreement to which
the parol evidence rule should apply. And, as we previously found,
the language in Article 1B unambiguously grants the Directors the
discretion to pay additional sums. We therefore conclude that we
should not take extrinsic evidence regarding the meaning of
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Article 1B.
Finally, we recognize that merit pay plans are subject to abuse
and favoritism by management and that the imposition of such plans
frequently cause considerable dissension among bargaining unit mem-
bers, especially when, as here, the affected employees are not allowed
any input regarding the plan. When a union waives its right in
contractual language to bargain about a particular subject, however,
management is free to act unilaterally in accordance with the
language. Because we cannot relieve a party from the terms of its
agreements, the Directors are free to implement unilaterally a merit
pay plan during the term of the present contract.
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)(1974 & Supp.
1983-84), it is ORDERED:
The MSAD #15 Board of Directors' motion to
dismiss for failure to state a claim is granted.
The Gray-Gloucester Teachers Association's pro-
hibited practices complaint is dismissed.
Dated at Augusta, Maine, this 11th day of October, 1984.
MAINE LABOR RELATIONS BOARD
/s/________________________________
The parties are advised of Donald W. Webber
their right pursuant to Alternate Chairman
26 M.R.S.A. 968(5)(F)
(Supp. 1983-84) to seek
review of this decision
and order by the Superior /s/________________________________
Court by filing a complaint Thacher E. Turner
in accordance with Rule 80B Employer Representative
of the Rules of Civil Pro-
cedure within 15 days of
the date of this decision.
/s/________________________________
Russell A. Webb
Alternate Employee Representative
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