STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 88-12
Issued: May 26, 1988
_____________________________________
)
AUBURN TEACHERS' ASSOCIATION, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
AUBURN SCHOOL COMMITTEE, ) ON MOTION TO
Chairperson DAVID CANNAN, ) QUASH SUBPOENA
Former Chairperson BONNIE HAYES, )
Performance Based Pay Coordinator )
JACK MARA and Superintendent )
ROY LOUX, )
)
Respondents. )
_____________________________________)
On August 27, 1988, the Maine Labor Relations Board (Board) con-
sisting of Alternate Chairman Peter T. Dawson, presiding, Employer
Representative Thacher E. Turner and Employee Representative George W.
Lambertson, convened a hearing to consider the Auburn Teachers'
Association's April 25, 1988 Motion to Quash an April 22, 1988 sub-
poena, issued by the Board at the request of the Auburn School
Committee. The subpoena required the Association to produce at the
scheduled evidentiary hearing:
1. All versions of any existing collective bargaining
agreements between the Auburn School Committee and
the Auburn Teachers Association, including all drafts
of such agreements, in the Association's possession
or the possession of its officers, agents or repre-
sentatives.
2. All notes and minutes of the Auburn Teachers Asso-
ciation reflecting agreements reached in negotiations
with the Auburn School Committee in regard to collec-
tive bargaining for the period of September 1, 1985
to August 31, 1989 whether such notes be in the
possession of the Association, its officers, agents
or representatives.
At the motion hearing the Association objected that the subpoena
was overbroad and arguably required the production of documents con-
taining confidential Association collective bargaining information.
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Both parties presented argument concerning the Motion to Quash. The
argument revealed substantial dispute over what, if any, contract
terms were in existence during the time span material to the Complaint
and Countercomplaint. Since allegations of violations of the duty to
bargain are common to the complaints of both parties and since the
terms of any collective bargaining agreement are relevant to the reso-
lution of the issue of the parties' bargaining obligations, the Board
adjourned the hearing and informed the parties that it would permit
them a reasonable amount of time for discussion aimed at reaching
agreement on the terms, if any, of the contract in effect at the cru-
cial times herein. On Friday, May 13, 1988, the parties informed the
Board that their discussions had not resulted in an agreement.
Accordingly, we shall now rule on the Motion to Quash, which was taken
under advisement and deliberated upon adjournment of the motion
hearing.
It has long been the policy of this Board to consider documents
or portions of documents which disclose collective bargaining posi-
tions, strategy or tactics to be privileged. In Associated Faculties
of the University of Maine v. University of Maine, No. 79-55, slip op.
at 3 (Me.L.R.B. June 14, 1979), the Board stated in this regard:
We are aware of no privilege recognized by law regard-
ing such documents. However, while the Chairman has the
power under 26 M.R.S.A. [Sec.] 1030(2) to subpoena documents
"relative or pertinent to the issues presented to the board
for determination," the Board does not intend to utilize
this power with respect to collective bargaining positions,
strategy or tactics. In effect, the Board intends to
recognize a de facto privilege for such material in the
interest of promoting the improvement of the relation-
ship between public employers and their employees."
Because the subpoena, as presently worded, may conceivably result
in compromise of the Association's confidential collective bargaining
information or tactics the Board hereby directs that the Association
shall produce at the beginning of the evidentiary hearing, scheduled
for 10:30 a.m., Monday, June 6, 1988, all of the materials requested
in the original subpoena. The Board or its designee will examine in
camera any of these documents which the Association contends will
betray confidential Association collective bargaining proposals,
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information, tactics or strategy. The Board will at that time
conclude whether any such documents might rightly be considered privi-
leged, or whether they may nonetheless be produced after any privi-
leged portions are deleted.
Dated at Augusta, Maine, this 26th day of May, 1988.
MAINE LABOR RELATIONS BOARD
/s/________________________________
Peter T. Dawson
Alternate Chairman
/s/________________________________
Thacher E. Turner
Employer Representative
/s/________________________________
George W. Lambertson
Employee Representative
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