STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 88-13
Issued: June 16, 1989
_____________________________________
)
OXFORD HILLS TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
M.S.A.D. No. 17 BOARD OF DIRECTORS, )
Superintendent KENNETH SMITH, and )
ANNALEE Z. ROSENBLATT, )
)
Respondents. )
_____________________________________)
The questions presented in this prohibited practice case are
whether the M.S.A.D. No. 17 Board of Directors, Superintendent of
Schools Kenneth Smith and Management Consultant Annalee Z.
Rosenblatt, in her capacity as an agent of the M.S.A.D. No. 17 Board
of Directors, (hereinafter referred to together as "Employer")
transgressed 26 M.R.S.A. 964(1)(A), (C), and (E). Also presented
for resolution are questions of whether the Oxford Hills Teachers
Association ("Union") violated 26 M.R.S.A. 964(2)(A), (B), and
(C). We hold that both parties violated the Municipal Public
Employees Labor Relations Law ("Act"), 26 M.R.S.A. ch. 9-A (1988).
We will, therefore, fashion remedies appropriate to redress the
violations and to effectuate the polices of the Act.
The Union's complaint was filed pursuant to 26 M.R.S.A.
968(5)(B), on March 29, 1988. The complaint alleged that the
Employer violated the portions of the Act noted above by: (1) send-
ing a letter to each unit employee, during the course of nego-
tiations for a successor collective bargaining agreement, outlining
the Employer's most recent salary proposal; (2) establishing a
"Teachers Advisory Council," without advance notice to the
bargaining agent; (3) discussing subjects at a Teacher Advisory
Council meeting that were within the scope of the statutory duty to
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bargain or to meet and consult; (4) delivering a letter to the
president of the Union, ordering him, as president, to take certain
actions or be considered insubordinate and have the unit employees
be subject to discipline; (5) interrogating the Union president con-
cerning Union activities; (6) informing the Union that retroactive
pay would not be paid in satisfaction of a tentative agreement; (7)
drafting a successor collective bargaining agreement that: con-
tained language not agreed to, omitted language agreed to, and
modified the format of one article; (8) polling unit employees; and,
(9) prior to the signing of the successor agreement, threatening to
recapture the previously paid retroactive pay, unless the successor
agreement was signed by a particular date.
The Employer filed its response on April 20, 1988, denying that
it had transgressed any provision of the Act and charging that the
Union had violated the sections of the Act mentioned in the first
paragraph hereof. The Union filed its response to the Employer's
counterclaim on June 7, 1988, alleging that each count thereof
lacked sufficient specificity to permit a response and denying any
material allegation of fact contained therein.
A prehearing conference on the case was held on June 7, 1988,
Alternate Chairman Peter T. Dawson presiding. At the prehearing
conference, the Union noted its unsuccessful attempt to serve
Respondent Annalee Rosenblatt by mail and presented Ms. Rosenblatt
with a copy of the complaint. The Respondents moved for leave to
amend their counterclaim and were allowed to do so, within 30 days
of the date of the prehearing conference. Alternate Chairman Dawson
issued a Prehearing Conference Memorandum and Order on June 10, 1988,
the contents of which are incorporated herein by reference.
The Respondents' amended counterclaim was filed on September 12,
1988, by agreement of the parties. The counterclaim charges that
the Union has violated the Act by: (1) interfering with the
Employer's choice of bargaining representative and circumventing
said representative by: (a) writing a letter to each member of the
Board of Directors concerning the on-going negotiations, (b) during
a break in fact-finding proceedings, a member ot the Union team
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speaking to a member of the Employer team about the Employer's chief
negotiator, (c) after the execution of the successor collective
bargaining agreement, the Union's chief negotiator making a public
statement concerning the Employer's chief negotiator at a meeting of
the Board of Directors; (2) violating the Employer's established
building-use policy; (3) urging unit employees not to serve on the
Teachers Advisory Council; and (4) insisting to the point of impasse
on negotiating over non-mandatory subjects. The Respondents filed
their hearing memorandum on October 7, 1988, and the Complainant
filed its response to the amended counterclaim and its hearing
memorandum on October 12, 1988.
Hearings on the merits of the case were conducted by the Maine
Labor Relations Board ("Board"), Alternate Chairman Peter T. Dawson
presiding, with Alternate Employer Representative Carroll R. McGary
and Alternate Employee Representative Gwendolyn Gatcomb, on October 17
and 18 and November 21 and 22, 1988. The Complainant was repre-
sented by John J. Finn, Esq., and the Respondents were represented
by Hugh G. E. MacMahon, Esq., and Bruce W. Smith, Esq. The parties
were given full opportunity to examine and cross-examine witnesses,
to introduce documentary evidence, and to make argument. The par-
ties filed posthearing briefs, the last of which was received on
March 10, 1989, which were considered by the Board in reaching its
decision. The Board met to deliberate on the case on March 29, 1989.
JURISDICTION
The Complainant Oxford Hills Teachers Association is the
certified bargaining agent, within the definition of 26 M.R.S.A.
962(2), for a certified professional employees' bargaining unit
composed of all classroom teachers, guidance personnel, librarians,
nurses, department chairpersons, and elementary teaching principals
employed by the M.S.A.D. No. 17 Board of Directors. The M.S.A.D.
No. 17 Board of Directors is the public employer, within the defini-
tion of 26 M.R.S.A. 962(7), of the employees mentioned in the pre-
ceding sentence. At all times relevant hereto, Kenneth Smith and
Annalee Z. Rosenblatt were the Superintendent of Schools and Manage-
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ment Consultant/Chief Negotiator, respectively, for M.S.A.D. No. 17.
Since the acts alleged concerning Mr. Smith and Ms. Rosenblatt arose
out of and were performed by them within the scope of their
employment with M.S.A.D. No. 17, they are public employers, within
the definition of 962(7) of the Act. The jurisdiction of the
Board to hear this case and to render a decision and order herein
lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The first procedural issue presented is whether the complaint
should be dismissed because each of the named respondents was not
served with a copy of the complaint in compliance with the Board's
Rules and Procedures. The relevant portion of Board Rule 4.04
states that "[n]o prohibited practice complaint shall be filed with
the Executive Director until the complaining party shall have served
a copy therof upon the party against whom such charge is made."
The Board has discussed the service requirement as follows:
Service of the prohibited practices complaint on the
respondent is of fundamental importance because service
is the basis on which our jurisdiction is acquired.
Failure to serve the complaint thus means that we have
no power to act on the complaint. See, e.g., Pennoyer
v. Neff, 95 U.S. 714, 732-33 (1877).1
Geroux v. City of Old Town, MLRB No. 84-24, 7 NPER 20-15O16, slip
op. at 3 (June 18, 1984). Footnote 1 mentioned in the above quota-
tion states:
Another purpose of the service requirement is to give par-
ties whose rights or interests might be affected notice
of the pendency of the proceeding and an opportunity to
defend themselves. See, e.g., Mullane v. Central Hanover
Bank & Trust, 339 U.S. 306, 314 (1950).
Id. In a case involving several respondents, the failure to serve
one respondent requires dismissal of the complaint as against that
individual; however, such failure of service does not render the
complaint defective as against respondents who were properly served.
Westbrook Police Unit of Local 1828, Council 74, AFSCME v. City of
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Westbrook, MLRB No. 81-53, 4 NPER 20-12033, slip op. at 4 (Aug. 6,
1981). The Board gained jurisdiction over the respondents that were
properly served and said respondents were accorded adequate notice
and opportunity to be heard, consistent with the requirements of
procedural due process.
In the instant case, Respondent Annalee Z. Rosenblatt was not
served with a copy of the complaint, prior to its being filed with
the executive director, as required by Rule 4.04. The other
Respondents were properly served. Since Ms. Rosenblatt was not
served in compliance with our rules, the Board gained no jurisdic-
tion over her, as an individual respondent; therefore, the Respond-
ents' motion to dismiss the complaint as against Ms. Rosenblatt
individually is hereby granted. Although the complaint against
Ms. Rosenblatt has been dismissed, the Employer remains responsible
for any violations of the Act perpetrated by Ms. Rosenblatt, acting
in the capacity of the Employer's agent and which arose out of and
were performed by her in the course of such agency relationship with
the Employer. See, Teamsters Local Union No. 48 v. Town of Bar
Harbor, MLRB No. 82-35, 5 NPER 20-14004, slip op. at 10-11 (Nov. 2,
1982) (Public employer held responsible for misconduct of agent
management consultant who was employer's chief negotiator).
The second and third procedural questions presented are whether
portions of the complaint are barred by the six-month statute of
limitations embodied in 968(5)(B) of the Act and whether the
complaint should be dismissed on grounds of laches. Because the
period of limitations embodied in the Act is relatively short, these
two questions are closely related. Except for instances of waiver
by inaction when a unilateral change is implemented after reasonable
notice was given to the bargaining agent, violations of the Act
occurring within the six-month period of limitations are actionable
in most circumstances. The complaint in this case was filed on
March 29, 1988; therefore, charged conduct that occurred on or
before September 29, 1987, is barred by the statute of limitations.
As will be discussed below, one act charged in the complaint is so
barred.
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The fourth procedural defense presented is that the complaint
should be dismissed because the Complainant Union and its represen-
tatives, agents, and members allegedly engaged in practices prohib-
ited by the Act. While this sort of "clean hands" doctrine was
cognizable before the chancellor of equity, it is not a defense
before the Board. Pursuant to the mandate of 26 M.R.S.A. 968(5),
the Board will consider the allegations of both parties' misconduct.
If both parties have violated the Act, we will consider the rela-
tionship between such violations, if any, in fashioning remedies.
Sanford Highway Unit of Local 481 AFSCME v. Town of Sanford, MLRB
No. 79-50, 1 NPER 20-10012, slip op. at 16-17 (Apr. 5, 1979),
aff'd, 411 A.2d 1010 (Me. 1980).
The fifth procedural issue is whether the Union's charges were
rendered moot by the subsequent execution of the successor collec-
tive bargaining agreement. We have reviewed the Board's precedent
on the mootness issue, from the early cases, e.q., Bangor Education
Association v. Bangor School Committee, PELRB No. 73-12 (May 18,
1973), to the more recent decisions, e.g., Teamsters Local Union
No. 48 v. City of Banqor, MLRB No. 79-29, 1 NPER 20-10005, slip op.
at 2 (Mar. 2, 1979); Teamsters Local Union No. 48 v. City of
Waterville, MLRB No. 81-40, 4 NPER 20-12040, slip op. at 4 (Sept. 1,
1981); and Washburn Teachers Association v. Barnes, MLRB No. 83-21,
6 NPER 20-14039 slip op. at 5-6 (Aug. 24, 1983). While leading to
different results, the common thread running through these decisions
is that execution of the collective bargaining agreement would, at
most, render moot charges of failure to bargain in good faith during
the negotiations that culminated in the agreement. For the reasons
stated in M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43
Teachers Association, MLRB Nos. 79-36, 79-39, 79-45 & 79-47, 1 NPER
20-10027, slip op. at 12 (Aug. 24, 1979), aff'd in rel. part,
M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No. 43 Board of
Directors, No. CV-79-541, (Me.Super.Ct., Ken.Cty., July 8, 1980),
aff'd, 432 A.2d 395 (Me. 1981), the better rule is that execution of
the collective agreement does not vitiate pre-agreement violations
of the Act. In the interest of fostering harmony in their future
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relationship, we strongly recommend that the parties strive to
resolve all of their outstanding differences at the time that they
reach accord on their collective agreement.
The final procedural question presented is whether "[tlhe
Complaint should be dismissed to the extent that it alleges claims
that might have been the subject of grievances under the collective
bargaining agreement." Response on Behalf of the Employer, at 2.
The Board has deferred to the arbitral process primarily in
instances where the prohibited practice complaint may be read to
charge a violation of the parties' collective bargaining agreement
and where the defense will turn on whether the charged conduct was
permitted by the bargaining agreement. Maine State Employees Asso-
ciation v. State of Maine, MLRB No. 86-09, 9 NPER ME-17010, slip op.
at 5 (Apr. 23, 1986). The Board has declined to defer in cases
where the complaint charges unlawful interference, restraint, or
coercion in violation of 964(1)(A) of the Act or discrimination
prohibited by 964(1)(B). Id. at 6, n.4. Since no grievance was
filed concerning any of the issues raised in the complaint, the case
is not an appropriate one for deferral. Coulombe v. City of South
Portland, MLRB No. 86-11, 9 NPER ME-18008, slip op. at 9-10 (partial
dissent) (Dec. 29, 1986).
We note that some of the substantive issues presented in the
complaint are factually and analytically related to charges included
in the counterclaim. We will address such connected averments
together in separate portions of the ensuing discussion.
Teacher Advisory Council
During the third day of the evidentiary hearing, the Board
heard argument and considered the Respondents' motion to dismiss the
complaint. Chairman Dawson announced that, although the timing of
the creation of the Teacher Advisory Council ("TAC") was trouble-
some, the occurrences concerning the TAC did not rise to the level
of being practices prohibited by the Act in the circumstances.
At the outset, we observe that the circumstances surrounding the
creation of the TAC and, hence, the question of whether it was
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lawfully established, are not at issue in this proceeding.
The Superintendent announced the creation of the TAC at the
district's annual pre-school staff meeting on August 27, 1987.
Although notice to unit employees may not constitute notice to the
bargaining agent, Teamsters Local Union No. 48 v. Washington County
Commissioners, MLRB No. 89-07, 11 NPER _____, slip op. at 8
(Apr. 4, 1989), it is clear that the bargaining agent had actual
notice of the establishment of the TAC since the Union president and
the Superintendent discussed the matter at their regular monthly
meeting in September, 1987. There is no evidence in the record that
the Union ever requested to negotiate over the creation of the TAC.
Since the complaint in this case was filed on March 29, 1988, more
than six months after the Union had actual knowledge of the estab-
lishment of the TAC, the question of whether the TAC was lawfully
created is time-barred by the Act's six-month period of limitations.
The Union has charged that three matters concerning the TAC
constitute the bypassing of the employees' bargaining representative
in violation of the Employer's duty to negotiate in good faith.
Specifically, the Union avers that the Employer violated 964(1)(E)
by polling the TAC members, by discussing subjects that were nego-
tiable matters at TAC meetings and by the Superintendent's repre-
senting at a TAC meeting that the prohibited practice complaint was
directed against the TAC members personally.
The duty to negotiate in good faith is the mutual obligation of
the public employer and the exclusive bargaining agent that repre-
sents the employer's employees. An employer violates the statutory
duty if it seeks to circumvent the employees' bargaining agent and
attempts to deal directly with the unit employees. Teachers Asso-
ciation of S.A.D. No. 49 v. Board of Directors of M.S.A.D. No. 49,
MLRB No. 80-49, 3 NPER 20-12005, slip op. at 8 (Nov. 18, 1980).
In discussing the exclusive nature of the bargaining obligation, we
have adopted relevant federal precedent as follows:
Good faith bargaining . . . requires at a minimum
recognition [by the employer] that the statutory represen-
tative is the one with whom it must deal in conducting
bargaining negotiations, and that it can no longer bargain
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directly or indirectly with the employees. It is incon-
sistent with this obligation for an employer . . . to seek
to persuade the employees to exert pressure on the repre-
sentative to submit to the will of the employer, and to
create the impression that the employer rather than the
union is the true protector of the employees' interests.
General Electric Co., 150 NLRB 192, 194-195 (1964),
enforced, 418 F.2d 736 (2nd Cir. 1969), cert. denied 397
U.S. 965 (1970).
Maine State Employees Association v. State of Maine, MLRB No. 82-01,
5 NPER 20-13020, slip op. at 3-4 (Apr. 5, 1982), aff'd sub nom.
State of Maine v. Maine State Employees Association, No. CV-82-185
(Me.Super.Ct., Ken.Cty., Oct. 30, 1984). There is no blanket prohi-
bition against a public employer communicating directly with unit
employees. Unlawful circumvention of a party's bargaining represen-
tative usually arises either during the course of negotiations for a
collective bargaining agreement, when one party seeks to deal
directly with the other principal party, thereby avoiding the latter
party's bargaining representative, Teachers Association of S.A.D.
No. 49, supra, at 8; M.S.A.D. No. 22 Board of Directors v. Tri-22
Teachers Association, MLRB No. 82-33, 5 NPER 20-14003, slip op. at
8 (Oct. 5, 1982), or in circumstances where the employer seeks to
alter the terms of the collective bargaining agreement, as they
apply to a particular unit employee, by bargaining different terms
and conditions of employment directly with that employee. Teamsters
Local Union No. 48 v. City of Calais, MLRB No. 80-29, 2 NPER
20-11018, slip op. at 6 (May 13, 1980); M.S.A.D. No. 45 v. M.S.A.D.
No. 45 Teachers Assocation, MLRB No. 82-1O, 5 NPER 20-13028, slip
op. at 12 (Sept. 17, 1982).
In the circumstances of the instant case, we conclude that the
activities of the TAC did not constitute a circumvention of the
employees' bargaining agent. The TAC did not hold its first meeting
until January 28, 1988, almost two months after the Union and the
Employer reached final tentative agreement on their successor
collective bargaining agreement. Said successor agreement settled
the wages, hours, and terms and conditions of employment for the
unit employees and there were no on-going substantive negotiations
affecting said employees at that time. At the initial TAC meeting,
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the Superintendent stated that the group would avoid discussing
negotiable subjects. This comment indicates recognition of the
Union's role as the employees' exclusive bargaining agent and
respect for the integrity of the bargaining process. The employee
members of the TAC participated in its functions as individiuals and
there was no suggestion that they were representing anyone other
than themselves. There was no evidence in the record of an attempt
or even an appearance of discussion concerning unit employees'
wages, hours, or terms and conditions of employment at TAC meetings.
The primary focus of the TAC was the creation of an opportunity
for individual teachers to discuss educational policy matters with
the Superintendent. While such matters come within the scope of the
statutory duty to meet and consult which is part of an educational
employer's obligation to negotiate in good faith, Southern Aroostook
Teachers Association v. Southern Aroostook Community School District,
MLRB Nos. 80-35 & 80-40, 5 NPER 20-13O21, slip op. at 15 (Apr. 14,
1982), that fact alone does not preclude public educational employers
from exploring such issues with individual teachers. As was noted
above, however, an employer's notice to individual employees of con-
templated changes in negotiable subjects, including educational
policy matters, does not constitute the notice thereof to the bar-
gaining agent that is required by the duty to negotiate in good
faith. Teamsters Local Union No. 48 v. Washington County Commis-
sioners, supra; Auburn Firefiqhters Association v. Valente, MLRB No.
87-19, 10 NPER ME-18O17, slip op. at 7 (Sept. 11, 1987). Second,
the fact that changes in educational policy matters were discussed
with individual unit employees does not relieve the employer of its
statutory obligation to negotiate or to meet and consult thereon
with the bargaining agent of the employees that would be affected by
such contemplated changes. Saco Valley Teachers Association v. MSAD
No. 6 Board of Directors, MLRB Nos. 85-07 & 85-09, 8 NPER ME-16O13,
slip op. at 11-12 (Mar. 14, 1985).
The Union's second contention is that the Employer circumvented
the bargaining agent by polling the members of the TAC. The Board
has held that polling bargaining unit employees about their union
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sympathies or unionism in general, during the pendency of a repre-
sentation petition and absent certain specified safeguards, consti-
tutes unlawful interference, restraint, or coercion in violation of
964(1)(A). Council No. 74, AFSCME v. Town of Millinocket, MLRB
No. 80-13, 2 NPER 20-11014, slip op. at 6 (Mar. 13, 1980). Such
polling tends to cause fear of reprisal in the minds of unit
employees and thereby interferes with the free exercise of their
963 rights. Id.
Although we have not been called upon to answer the question in
the past, we can readily envision a situation where polling unit
employees, concerning their individual priorities in connection with
the mandatory subjects of bargaining during negotiations for a
collective bargaining agreement, could undermine the employee
bargaining agent's negotiating strategy and tactics and constitute
circumvention of the bargaining representative. That was not the
case in this instance. The "polling" at issue was conducted well
after the Union and the Employer had reached final tentative agree-
ment on their successor collective bargaining agreement. Second,
the survey in contention was a request by the Employer that the TAC
members assign priority to five issues, in order of importance, from
a list of 17 topics. While two of the subjects contained in the
list were "collective bargaining" and "personnel relations," we
conclude that, in the circumstances, the survey did not violate
964(1)(E) of the Act. The result may well have been different had
there been evidence in the record that either of the two topics men-
tioned had been discussed at a TAC meeting.
The Union's final charge in connection with the TAC concerns
the Superintendent's comments about the instant prohibited practice
complaint, at the TAC meeting of May 10, 1988. The statements at
issue were made more than five weeks after the filing of the Union's
complaint. Rule 4.09 of the Board's Rules and Procedures provides,
in pertinent part, as follows:
The Board may permit an amendment to the complaint or
response at any time on such terms as may be deemed just
and consistent with due process. At the conclusion of the
hearing, the complaint or response on motion of a party may
be amended as necessary to conform to the evidence.
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During the course of the evidentiary hearing, counsel for the
Employer objected to questions that sought to elicit testimony con-
cerning the Superintendent's comments on the grounds that the state-
ments were beyond the scope of the complaint. Despite said
objection having been raised, the Complainant did not make the
motion provided for in Rule 4.09 at the close of the hearing; there-
fore, we must conclude that the issue concerning the Superintendent's
remarks is not properly before the Board.
The Employer has charged that, by successfully dissuading its
members from serving on the TAC until after accord was reached on
the successor collective bargaining agreement, the Union violated
964(2)(C) of the Act. In Windham School Committee v. Windham
Educators' Association, MLRB Nos. 87-14 and 87-15, 9 NPER ME-18015,
slip op. at 25 (Apr. 17, 1987), aff'd. sub nom. Windham Educators'
Association v. Windham School Committee, No. CV-87-153 (Me.Super.Ct.,
Ken.Cty., Sept. 30, 1987), we held that the refusal of teachers to
participate in a required "needs assessment review," when release
time had been provided therefor during the normal student school
day, Id., at 10, constituted an unlawful work stoppage in violation
of 26 M.R.S.A. 964(2)(C). Second, since the unlawful work stop-
page was designed to coerce the employer into concluding an
agreement it might not otherwise make, such use of a work stoppage
constituted a per se violation of the duty to negotiate in good
faith in violation of 964(2)(B) of the Act.
The Employer characterizes our Windham decision as standing for
the proposition that any instructional staff involvement in the for-
mulation of educational policy must be classified as a matter of
educational policy not subject to mandatory collective bargaining.
Respondents' Post-Hearing Brief, at 24-25. Such a reading of the
educational policy exception is overbroad. The leading decision
interpreting 965(1)(C) is Justice Wernick's opinion in City of
Biddeford v. Biddeford Teachers Association, 304 A.2d 387, 403 et
seq. (Me. 1973). Justice Wernick noted that the terms "educational
policies" and "working conditions" may be "reasonably conceived as
categories defining areas with essential purity at the extremities
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but with intermediate zones of substantial intermixture" and stated
that the Legislature's "double emphasis" on "working conditions" in
965(1)(C) is intended to prevent emasculation of teacher working
conditions as mandatory subjects of bargaining. Id., 304 A.2d, at
418-420. Such double emphasis evidences the legislative intent
that, although "they touch upon one specific 'managerial' function
with which, as a practical matter, the 'working conditions' of
teachers are almost invariably interconnected--i.e., the organiza-
tion, supervision, direction and distribution of working personnel,"
the working conditions of instructional staff employees are subject
to mandatory collective bargaining. Id., 304 A.2d, at 419. Justice
Wernick concluded his discussion of the correlation between
"educational policies" and "working conditions" as follows:
Thus, (1) negatively, not only must impact upon the
organization, supervision, direction and distribution of
personnel be held insufficient, per se, to exclude items
related to teacher 'working conditions' as proper matters
of collective bargaining and binding arbitration but also,
(2) affirmatively, the reasonably manifest legislative
intention must be held to be that other contacts of such
items with other functions generally cognizable as 'mana-
gerial' and 'policy-making' can subordinate the 'working
conditions' features, and accomplish an exclusion from
negotiability and binding arbitration, only if, on
balance, their quantitative number or qualitative impor-
tance, or both, are found significantly substantial to
override the prima facie eligibility for collective bar-
gaining and binding arbitration established by the pres-
ence of reasonable relationships to 'working conditions.'
Id., 304 A.2d, at 420. Justice Wernick went on to consider the
negotiability status of teacher attendance at times outside of the
normal student school day when he stated:
[Q]uestions relating to the attendance of teachers at
school at times other than when the students will be in
attendance are to be regarded as 'working conditions' of
teachers lacking significant relationships to non-teacher
interests of a quantitative and qualitative magnitude suf-
ficient to negate collective bargaining or binding
arbitration. The negotiation or arbitration of questions
related to whether and when teachers shall be at school,
even though the students are not in attendance, impinge
only upon that 'managerial' function concerned with the
organization, supervision, direction and distribution of
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personnel. As above emphasized, this single 'managerial'
factor must be regarded as insufficient per se to
establish the kind of involvement with 'educational poli-
cies' requisite statutorily, to remove an item substan-
tially related to teacher 'working conditions' from the
sphere of mandatory collective bargaining or of deter-
mination by binding arbitration.
Id., 304 A.2d, at 421-422. Pursuant to Justice Wernick's analysis,
the Board has held that mandatory teacher participation in "open
house" functions, held outside of the normal student school day and
designed to acquaint parents with their children's class schedule
and each teacher's educational program expectations, was a mandatory
subject of bargaining. Saco Valley Teachers Association, supra, at 17.
We have carefully examined the TAC and, although its agenda is
limited to educational policy matters, it is closer in nature to the
Saco Valley "open house" activity than to the Windham School Committee
"needs assessment" review. While its discussions are, no doubt,
helpful in designing educational policies, it is not a substitute
for the statutory meet-and-consult process through which instruc-
tional staff, acting through their bargaining agent, can contribute
to the evolution of educational policy. Second, teacher par-
ticipation in the TAC was not required since it was solicited by
written invitation. Tnird, TAC meetings were held after the normal
student school day and no students were present thereat. In
contrast, the "needs assessment" review at issue in Windham was an
integral component of the school accreditation process, teacher par-
ticipation therein was mandatory by order of the Superintendent, and
the activity was conducted during the normal student school day at
times when the students were sent home early in order to permit
faculty participation. On balance, applying the Biddeford test, we
conclude that attendance at TAC meetings was a mandatory subject of
bargaining and not an educational policy matter, within the meaning
of 26 M.R.S.A. 965(1)(C).
Since attendance at TAC meetings was not a matter of educa-
tional policy, we must determine whether such participation was
either a contractual or a traditional duty, the unilateral cessation
of which would violate 964(2)(C) of the Act. Windham School
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Committee, supra, at 20-21. Unlike the collective bargaining
agreement controlling in Windham, the pertinent agreement here did
not compel unit employees to attend any meeting at which their
attendance was required by the Employer. Id., at 20. Second, the
TAC was a new entity in the fall of 1987; therefore, participation
therein was not a traditional practice, the continuance of which was
required by 964(2)(C).
Finally, the Employer appears to argue, at pages 25-26 of its
posthearing memorandum, that because the unit employees had volun-
teered for service on various committees in the past, the concerted
refusal by such employees to voluntarily participate in the TAC
constitutes an unlawful work stoppage. We have held that voluntary
activities performed by unit employees on a regular basis for a
substantial period of time can ripen into an established practice
that characterizes the collective bargaining relationship. Coulombe
v. City of South Portland, supra, slip op. at 17. Such established
practices cannot be unilaterally discontinued by the unit employees
without violating 964(2)(C), Windham School Committee, supra, at
21; however, the fact that unit employees volunteered to perform
additional duties in the past does not require them to volunteer for
activities over and above their traditional work responsibilities.
The Superintendent's invitation to prospective TAC members
stated:
You are cordially invited to become a member of the
Teacher Advisory Council to the Superintendent of Schools.
The purpose of the Council will be to advise the
Superintendent on issues of importance. The meetings will
be scheduled monthly and they will not go past 5 p.m.
I hope you will accept this professional invitation.
Inherent in an invitation is the option of the invitee to decline.
Service on the TAC was on a purely voluntary basis, such partici-
pation was not a matter of educational policy, as opposed to being
within the scope of mandatory bargaining, and teacher involvement on
the TAC was neither required by the relevant collective bargaining
agreement nor was it a traditional practice that characterized the
-15-
employment relationship. In sum, we conclude that in the circum-
stances the Union could urge that its members retrain from serving
on the TAC, until after the successor collective bargaining agree-
inent was concluded, without violating 26 M.R.S.A. 964(2)(C).
The Employer also charged that the Union's concerted effort to
dissuade service on the TAC constituted a violation of the duty to
negotiate in good faith in contravention of 964(2)(B). Since the
Union's conduct did not involve an unlawful job action, such activ-
ity did not violate the statutory duty to bargain. The Board has
long recognized that public employers are inherently responsive to
the political process and are, ultimately, responsible to the tax-
payers. Public employee efforts to arouse public opinion during the
course of negotiations through the distribution of handbills,
newspaper advertisements, and informational picketing neither cir-
cumvent the employer's bargaining representative nor violate the
duty to negotiate in good faith. Van Buren Education Association
v. M.S.A.D. No. 24 Board of Directors, MLRB No. 76-08, slip op. at
4-5 (Oct. 14, 1976). In Sanford School Committee v. Sanford
Teachers Association, MLRB No. 78-34, slip op. (Oct. 19, 1978), the
Board considered whether the bargaining agent's "drafting, cir-
culating and placing a petition in the Warrant of the Special Town
Meeting," that provided sufficient monies to fund the collective
bargaining agreement then being proposed by the union at the bar-
gaining table, constituted unlawful circumvention of the employer's
bargaining representative. The Board concluded that the bargaining
agent's actions did not violate the Act and explained its holding
as follows:
Our conclusion regarding the effect of Respondents'
actions is not changed by Complainant's contention that
the result of approval of the requested appropriation
would be to place undue pressure on the School Committee
to accede to Respondents' salary proposals. Collective
bargaining, while it is a fragile process, does not take
place in a vacuum free of pressures or interruptions from
the outside world. In N.L.R.B. v. Insurance Agents Inter-
national Union, AFL-CIO, 361 U.S. 477, 488-489 (1960),
holding that employees may exert economic pressures upon
employers during contract negotiations, the Supreme Court
stated:
-16-
It must be realized that collective bargaining,
under a system where the Government does not
attempt to control the results of negotiations,
cannot be equated with an academic collective
search for truth - or even with what might be
thought to be the ideal of one. The parties -
even granting the modification of views that may
come from a realization of economic interdepend-
ence - still proceed from contrary and to an
extent antagonistic viewpoints and concepts of
self-interest. The system has not reached the
ideal of the philosophic notion that perfect
understanding among people would lead to perfect
agreement among them on values. The presence of
economic weapons in reserve, and their actual
exercise on occasion by the parties, is part and
parcel of the system . . .
School committees and teacher associations are always sub-
ject to various pressures from the citizenry during
contract negotiations. Any pressures created by the fact
that increased appropriations for teacher salaries were
approved should not constitute extraordinary or undue
pressure on the School Committee to accede to Respondents'
proposal. The fact that the budget contains sufficient
money is no more of a requirement to negotiate raises than
is the fact that the budget contains no money a release
from the obligation to bargain. We consequently conclude
that a finding that the School Committee would suffer
undue pressure due to Town Meeting approval of the
requested appropriation would not correspond to the
reality of the collective bargaining process.
The most significant reason why we find that
Respondents' actions do not constitute a violation of
26 M.R.S.A. 964(2)(B), however, is that we believe that
Respondents' actions in petitioning the Town Meeting to
approve the increased appropriation is protected by the
First Amendment of the United States Constitution. The
right to petition one's government is one of the most fun-
damental rights guaranteed by the Constitution. A citizen
does not lose this right upon assumption of the occupation
of teacher. Were we to order Respondents and their agents,
servants, and representatives to cease and desist for [sic]
engaging in any further petitioning activities, our order
might well run afoul of the Constitutional guarantee.
Id., at 4.
The activities of the Union's crisis committee, with one
notable exception discussed later in this decision, illustrate some
ot the symbolic speech activities in which a bargaining agent can
-17-
lawfully engage during the course of collective negotiations. When
faced with widespread employee frustration over the length of the
on-going negotiations and the lack of a successor collective
bargaining agreement that was characterized by calls by individual
employees for a "sick-out" and other "wildcat" activities, the Union
created the crisis committee. The committee's purpose and function
was to channel and re-direct the energies of individual unit
employees into activities that would not violate the Act, while
helping the employees to overcome their feelings of frustration.
The activities of the committee included: (1) purchasing and
distributing buttons that stated "[w]e want a contract" and
encouraging the wearing of such pins outside of the school
buildings, (2) advising unit employees to continue performing all
contractual and traditional duties, and (3) staging "walk-ins" and
"walk-outs" as media events without interfering with the performance
of any traditional or contractual work responsibilities. While
these activities were occurring, the Union's bargaining represen-
tatives continued to participate in good faith in the statutory
dispute resolution procedures of fact-finding and mediation and a
successor collective bargaining agreement was reaches by the parties.
The Exchanqe of Letters
Each party avers that the other violated the duty to negotiate
in good faith, by allegedly by-passing the charging party's
bargaining representative, through the exchange of letters of
September 28 and October 27, 1987. Each party denies that its own
letter violated the Act. The applicable Board precedent is cited in
the foregoing discussion concerning the TAC.
The Norway Advertiser-Democrat published an article on
September 24, 1987, in which the Union's chief negotiator was quoted
as saying that, although he was not the Employer's chief negotiator
and there was no requirement that he participate in bargaining at
all, one reason for the lack of progress in the parties' negotia-
tions was the Superintendent's "lack of commitment" to the bargaining
process. In support of this contention, the chief Union negotiator
-18-
cited five instances where the Superintendent was either late for
bargaining sessions, left early, or cancelled sessions due to other
demands. In the same article, the Superintendent was reported to
have questioned "whether the teachers' negotiators are informing the
rest of the Oxford Hills faculty who are presently working without a
contract, about what is being offered to them by the district's
board of directors. 'I don't think the teachers have any idea
what's being offered to them,' Smith said in a phone interview."
The Union has argued, at page 10 of its post-hearing memoran-
dum, that the employees' letter was written in direct response to
the Superintendent's reported comments, that the letter did not
attempt to negotiate directly with the school committee, and that it
was merely a non-coercive expression of the employees' position on
the salary scale issue. The second paragraph of the letter responds
to the remarks attributed to the Superintendent in the September 24
news story. The third paragraph of the letter is merely an expres-
sion of the employees' position on the salary structure issue and
does not violate the prohibition against direct bargaining. A much
closer question is presented by the balance of the letter, where the
employees present arguments in favor of their position. While the
purpose of such statements might arguably have been to persuade
individual members of the school committee to exert pressure on the
Employer's bargaining representative, they neither sought to nego-
tiate with the directors directly nor were they designed to elicit a
direct response. While such direct communications are not to be
encouraged, we hold that the single letter sent by the employees did
not rise to the level of constituting the unlawful circumvention of
the Employer's bargaining representative and, hence, did not deriva-
tively interfere with the Employer's selection of such represen-
tative.
The Employer argued, at page 4 of its post-hearing memorandum,
that Chairman Marshall's letter of October 27, 1987, was written in
response to the employees' letter discussed above and that it was
merely a non-coercive expression of the Employer's position on the
salary scale issue. We are aware that the letter was distributed to
-19-
the "economically dependent" employees, Maine State Employees
Association v. State of Maine, MLRB No. 82-01, supra, slip op. at 5;
however, we hold that the Employer's letter did not violate the Act.
The first page of the letter cites portions of the Employer's then
most recent salary scale proposal that would make the overall pro-
posal seem most attractive to the unit employees. Immediately
following the illustrative salaries that would have resulted from
adoption of the Employer's proposal was the following:
The above salaries are representative salaries.
Increases at other steps and levels are comparable.
The Board believes this is a significant and fair
increase in salaries.
While somewhat misleading, the above statement is, nevertheless,
literally accurate. The salary figures listed are "representative"
of the full range of salaries contained in the Employer's proposal
in that they are an excerpt therefrom and the other proposed
salaries are "comparable" in that one can compare them to those
cited. Any misconception that might have resulted from the quoted
statement was readily clarified by reference to the entire salary
schedule being proposed by the Employer that was attached to the
letter at issue.
Second, the Employer's letter does not contain any overt or
implicit promise of benefit or threat against the employees, should
their bargaining agent accept or reject the offer described therein.
The second page of the letter clearly states that the offer
discussed was the Employer's offer at mediation and that both the
Union and the Employer were likely to make further adjustments in
their respective positions at the time of fact-finding. As was the
case with the letter signed by the unit employees, while not wishing
to encourage this sort of communication, we hold that this single,
non-coercive expression of the Employer's position on the salary
structure question does not constitute the unlawful circumvention of
the employees' bargaining agent.
-20-
The Hallway Incident
The Employer alleges that, by urging unit employees to attend
an unauthorized gathering on the Employer's premises, the Union
violated 964(2)(B) of the Act. The building-use policy estab-
lished by the Employer and incorporated in Article 5(A) of the per-
tinent collective bargaining agreement provides that "[a]ll groups
desiring to use School Administrative District #17 facilities are
asked to make application through the principal in charge of the
facility to be used." The Crisis Committee distributed a hand-
written note among high school faculty members urging a showing of
silent support for the employees' bargaining team. The note stated:
Fact Finding is tomorrow!! Even though we are asking
you to leave at 2:30 tomorrow, we are asking as many
as possible to return at 3:15-3:30 and stay until at
least 3:45 or 4:00 p.m. We are trying to pack the
hallway outside the H.S. Library just before the start
of fact finding. This is to show support for our team!
Remember walk out this afternoon & in & out on Tues.
We counted over 50 out with us today.
The high school principal found a copy of the above note and gave it
to the Superintendent and informed the latter that no building-use
request had been submitted for the gathering mentioned.
Upon receipt of the handwritten message quoted in the preceding
paragraph, the Superintendent drafted and delivered a written order
to the president of the Union. The order was written with the
knowledge that 100-15O of the 224 unit employees had attended the
school committee meeting of October 26 and that the "walk-ins" and
"walk-outs" were being orchestrated by the Union's crisis committee.
The Superintendent's order stated:
I have received information that the Oxford Hills
Teachers Association has asked teachers to ... "pack the
hallway outside the H.S. library just before the start of
fact finding." You do not have permission to use school
property as you intend, "to interfere with or interrupt
normal school operation". Furthermore, you are reminded
that in accordance with the in-force Agreement between the
M.S.A.D. # 17 Board of Directors and the Oxford Hills
Teachers Association, "The Association will be granted
the use of the school district buildings, except the
central office building, within the regular policy of the
-21--
Board." You have not complied with regular policy of the
Board with respect to the use of school facilities.
Teachers are to maintain the status quo. Accord-
ingly, this letter is for the purposes of ordering you,
as President of the Oxford Hills Teachers Association
to comply with the collective bargaining Agreement by
maintaining the status quo and Board policy, and to
further make certain that bargaining unit members also
comply. Failure to do so will be considered insubordina-
tion by you and a disciplinary offense by the teachers.
The Superintendent called the Union president out of a class
that the latter was teaching, delivered the order, asked that the
order be read, and, after the order had been read, asked whether the
Union president understood the import of the order. The Union pres-
ident ultimately acknowledged that he understood the order and asked
only whether it was directed to him, in his capacity as Union presi-
dent, to which the Superintendent responded in the affirmative.
Upon arriving outside of the high school library, the
Superintendent confronted the 25-30 unit employees who were lining
the hallway wall directly across from the library. The Superin-
tendent asked the assemblage whether they were aware of his order
and, upon learning that they were, he asked the employees to leave
or face possible discipline. At first the employees were reluctant
to leave and they did so only after the Superintendent had ordered
them to disperse and leave the premises. At the Superintendent's
request, the high school secretary attempted to make a list of the
names of the unit employees present.
The Union charges that the Superintendent's conduct constitutes
unlawful interference, restraint, or coercion in violation of
964(1)(A) of the Act. The controlling standard for violations of
this section is as follows:
A finding of interference, restraint, or coercion does not
turn on the employer's motive or on whether the coercion
succeeded or failed, however, but is based on 'whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of
employee rights under the Act.' NLRB v. Ford, 170 F.2d
735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of
Oakland, MLRB No. 78-30, at 3 (Aug. 24, 1978).
-22-
Maine State Employees Association v. State Development Office, MLRB
No. 84-21, 7 NPER 20-15017, slip op. at 8-9 (July 6, 1984), aff'd,
499 A.2d 165, 169 (Me. 1985); Auburn Firefighters Association v.
Valente, supra, slip op. at 12.
In the circumstances, the majority of the Board concludes that
the Superintendent's actions did not violate 964(1)(A). The school
district's building-use policy has been in effect in its present
form since Decemoer 1985, and the Union had always requested the use
of facilities under the terms of said policy in the past. In light
of the large turnout of unit employees at the recent school commit-
tee meeting and the total number of unit employees, it was reason-
able for the Superintendent to anticipate that many, if not most, of
the district's 224 teachers might attend the pre-fact finding
demonstration in response to the Union's request. The references to
the "walk-ins" and "walk-outs" in the handwritten notice established
that the organizers of those activities were also planning to "pack
the hallway" prior to the beginning of the fact-finding proceeding.
The Union's crisis committee had previously circulated a memorandum,
signed by the committee chairperson, urging unit employee participa-
tion in the "walk-ins" and "walk-outs." Since the demonstration at
issue was being organized by the Union and since the Union failed to
request use of the Employer's facility for the gathering, it was
proper for the Superintendent to direct his order to the Union
president, rather than to the individual unit employees.
Second, the order itself makes clear that it was not directed
against legitimate Union activity but rather was aimed at the speci-
fic gathering at issue, whose location was not approved in com-
liance with the established building-use policy incorporated by
reference in the parties' collective bargaining agreement. In light
of the Superintendent's explicit reference to the collective bar-
gaining agreement in his order and since the Union had always
followed the building-use request policy in the past, we hold that
it would be unreasonable to conclude that the order tended to inter-
fere with protected Union activity. The order was narrowly drawn
and its effect was to maintain the status quo in the relationship
-23-
between the parties.
The Superintendent's conduct outside of the fact-finding site
was also reasonable in the circumstances. Having issued a lawful
order, the Superintendent confronted the unit employees who had
apparently defied the order. After learning that the assembled
employees knew of the order, the Superintendent first asked, then
ordered, the employees to disperse. Since the Employer explicity
stated, in advance, the legitimate reason why the demonstration
would not be permitted and the unit employees were aware of the
longstanding policy involved, they could not reasonably view their
attendance outside of the fact-finding site as constituting pro-
tected Union activity; therefore, the Superintendent's actions at
that time could not be reasonably perceived as constituting unlawful
interference, restraint, or coercion.
This result may have been different, had the employees involved
been attempting to attend the fact-finding proceeding itself.
The fact-finding site is considered to be neutral ground, whether it
is on or off the Employer's premises, and attendance of persons
during fact-finding proceedings is subject to control by the fact-
finding panel and is solely within the fact finders' discretion.
The employees confronted by the Superintendent outside of the fact-
finding room were attempting to participate in a show of support for
their negotiators and they neither intended to nor tried to attend
the fact-finding proceeding. Employees present for the purpose of
participating in the fact-finding on behalf of the Union were
admitted into the fact-finding room without incident.
We will now consider the Employer's charge in connection with
the hallway demonstration. In Windham School Committee, supra, at
20-21, the Board indicated that, during the period from the expira-
tion of a collective bargaining agreement through the execution of a
successor agreement, the "static status quo" must be maintained in
the mandatory subjects of bargaining. In light of our holding on
this charge, we need not decide whether the building-use policy is a
mandatory subject.
-24-
After receiving the Superintendent's order, the Union president
met with some of the unit employees and decided to do everything
possible to comply with the edict. The Superintendent's order was
copied and widely circulated among the unit employees. The Union
crisis committee posted persons at all of the entrances to the high
school under orders to distribute copies of the Superintendent's
letter to any teacher who appeared at that door and to deny such
employees entry to the building. The Union president and the chair-
person of the crisis committee met with the unit employees who had
gathered outside of the high school and attempted to dissuade them
from entering the structure. After listening to the Union offi-
cials, one of the employees stated that, as a parent whose children
attended the high school, he or she had the right to enter the
building. Another employee claimed that, as a taxpayer, he or she
had paid for the building and could go inside. A third employee
said, to the others present, "[a]re you with us or not" and led the
group into the building and to the hall outside of the fact-finding
site. In light of all of the steps taken by the Union to disasso-
ciate itself from the hallway demonstration and to discourage par-
ticipation therein, we hold that the employee activity inside the
high school on November 10, 1987, was not sanctioned by the Union
and the Union is not responsible therefore. Those unit employees
who entered the building on that day and gathered in the hallway
outside of the school library acted on their own in a "wildcat"
action; therefore, the unilateral change charge against the Union
in connection with the hallway demonstration is dismissed.
Interrogation of Union President
On the first school day after the November 10 demonstration,
the Superintendent phoned the Union president and requested that the
latter appear in the former's office at 2:15 p.m. on the following
day in connection with "the incident" of November 10. Not wanting
to have the matter "hanging over [his] head for 24 hours," the Union
president asked whether he could meet with the Superintendent that
same day. The Superintendent was adamant that the meeting take
-25-
place the following day.
The meeting took place in the Superintendent's office as sched-
uled. Since the Superintendent's order of November 10 had mentioned
possible discipline, the Union president exercised his Weingarten
rights and brought another unit employee with him to the meeting.
Also present were the Superintendent and the Assistant Superin-
tendent. Although he had a list of ten questions prepared, the
Superintendent asked the Union president only seven questions.
Apparently satisfied with the Union president's answers, the Super-
intendent terminated the meeting and imposed no discipline on either
the Union president or on any other unit employee as a result of the
November 10 demonstration.
The Union charged that the Superintendent's questioning of the
Union president violated 964(1)(A) of the Act. The Employer
responds that the interview was merely an investigation to determine
whether the Union president had complied with the November 10 order.
Had the inquiry on November 13 been limited to the reason outlined
by the Employer, no violation would probably have resulted; however,
the Superintendent's questions intruded into protected union activity.
The Board has held that, in most instances, "calling an
employee into a locus of managerial authority removed from the nor-
mal workplace for the purpose of interviewing the employee about
[protected) union activities" will result in a finding of unlawful
interference, restraint, or coercion. Teamsters Local Union No. 48
v. University of Maine, MLRB Nos. 78-16 & 78-20, 1 NPER 20-10021,
slip op. at 10 (June 29, 1979). As we noted during our discussion
concerning the TAC, bargaining agent contact with the media is,
absent a ground rule limiting the same, protected by the First
Amendment of the U.S. Constitution and, hence, is legitimate union
activity. While four of the questions asked by the Superintendent,
the first, second, third and fifth, related directly to compliance
with the November 10 order, the fourth and sixth questions related
solely to the Union's contacts with the media and had no connection
with the question of compliance with the Superintendent's order.
The natural result of the latter two questions was to interfere with
the Union's relations with the press; therefore, such questions
-26-
violated 964(1)(A) of the Act.
The two questions concerning the Union's contact with the press
tainted the entire interview of November 13. Id. Facing possible
discipline, the Union president was summoned to the locus of mana-
gerial authority--the Superintendent's office--and was interrogated
concerning protected Union activity. The Union president's reason-
able anxiety concerning the meeting is evidenced by his bringing
another unit employee with him to the meeting and by his attempts to
discuss the November 10 incident immediately on November 12, when
he was first contacted by the Superintendent. Consistent with our
description of the law in the University of Maine decision, we hold
that the Superintendent's questions concerning the Union's contact
with the press violated 26 M.R.S.A. 964(1)(A).
Union Insistence to Impasse on Non-Mandatory Subjects
Chronologically, the next charge is the Employer's allegation
that the Union violated its duty to negotiate in good faith by
insisting on presenting educational policy issues to the fact-
finding panel. The Board has held that matters of educational
policy are permissive subjects of bargaining; that is, they are
topics upon which parties may, but are not obligated to, negotiate.
Sanford Federation of Teachers v. Sanford School Committee, MLRB
No. 84-13, 6 NPER 20-15009, slip op. at 4 (Mar. 20, 1984). We have
also held that the refusal to remove permissive subjects from the
bargaining table, after one party demands such removal, constitutes
a violation of the duty of bargain in good faith required by
965(1)(C). Woolwich School Committee v. Woolwich Teachers Asso-
ciation, MLRB No. 80-55, 3 NPER 20-12010, slip op. at 6 (Feb. 27,
1981). Such demands by either party to remove permissive subjects
from the scope of the negotiations may be made at any time prior to
fact-finding. Lewiston Teachers Association v. Lewiston School
Committee, MLRB No. 86-04, 9 NPER ME-17011, slip op. at 26 (June 30,
1986). On the other hand, if neither party demands that permissive
subjects be removed from the bargaining table, such topics continue
to be negotiated by tacit agreement of the parties and such subjects
-27-
may properly be submitted to fact-finding and interest arbitration.
In such instances, neither party is insisting on negotiating over
non-mandatory subjects over the objection of the other party and any
impasse on such issues is merely an inability by the parties to
reach agreement on a subject that both wished to resolve through
negotiations.
The first Union bargaining proposal at issue concerns the scope
of agreement article for the successor collective bargaining agree-
ment. The record established that, although the parties were not
able to reach consensus on this proposal, they did negotiate thereon
and, with input from the Employer's chief negotiator, the original
proposal was redrafted and the parties understood that it was
intended to deal with the impact of "rules, regulations and/or poli-
cies" of the Employer upon the mandatory subjects of bargaining.
Since the Employer did not object to bargaining over this proposal
at any time during the negotiations, including its presentation to
the fact finders, the proposal was properly before the fact-finding
panel.
The second Union bargaining proposal at issue concerned the
allocation of parent-teacher conference days within the 180-day
teacher work year. In the portion of its fact-finding brief
received by the Union prior to the fact-finding hearing, the
Employer prefaced its discussion of this topic as follows:
The Association proposal is a matter of educational
policy and should not be before the fact-finding panel.
The Maine Labor Relations Board has ruled that scheduling
of days when pupils are in attendance is not a matter for
collective bargaining. It further found that the sched-
ules of parent-teacher conferences was also a matter of
educational policy. It is neither proper for the Asso-
ciation to bring this matter to fact-finding nor for the
fact finders to consider it.
The employer, at page 28 of its post-hearing memorandum, cited our
decision and order on remand in M.S.A.D. No. 43 Board of Directors
v. M.S.A.D. No. 43 Teachers Association, MLRB No. 79-36, 3 NPER
20-12015, slip op. at 5 (Mar. 18, 1981), as standing for the propo-
sition that the school calendar is a matter of educational policy.
-28-
What we held in that decision was that, consistent with the Law
Court's opinion in City of Biddeford, supra, the student school year
is a matter of educational policy and teacher attendance at times
when students are not present is a mandatory subject of bargaining.
The record fails to establish whether the teacher-parent conference
days at issue are "days which the school committee wishes to use as
class days"; therefore, we are unable to determine whether the pro-
posal at issue concerned educational policy or a mandatory subject
of bargaining. We cannot, therefore, conclude that the Union's pre-
sentation of this proposal to the fact finders, in the face of the
Employer's notice that it be withdrawn from the negotiations,
constituted a violation of the duty to negotiate in good faith.
The final Union proposal at issue sought to prohibit the per-
formance of non-instructional duties by unit employees during "duty-
free periods." This proffer clearly refers to teacher assignments
during the course of the student school day and seeks to negotiate
over reserving such periods for teacher "planning, student and
parent conferences, and other responsibilities which build pro-
fessionalism and competence." Other than a duty-free lunch which
is a mandatory subject of bargaining, M.S.A.D. No. 43 Board of
Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36,
79-39, 79-45 & 79-47, supra, slip op. at 14, we have consistently
held that the scheduling and assignment of teacher duties during
the student school day is a matter of educational policy. Windham
School Committee, supra, at 22; Sanford Federation of Teachers,
supra, at 5. The Employer indicated, at page 14 of its fact-finding
brief, that "the Labor Board has ruled that [the subject matter of
this Union proposal] is a matter of educational policy and is not a
proper subject for fact-finding. The [Employer] respectfully
requests the fact-finders recognize this is not a proper subject for
them to address." Despite this advance notice of the Employer's
objection to this issue being submitted to the fact finders, the
Union did not withdraw the issue from consideration and the fact-
finding panel addressed it in its report. We conclude that, by
continuing to pursue its non-instructional duties proposal in fact-
-29-
finding after receipt of notice that the Employer considered the
matter to be, and this Board having ruled the topic to be, one of
educational policy, the Union violated the duty to negotiate in
good faith.
In fashioning a remedy for this violation, we are aware that,
in similar situations in the past, we have ordered the party that
violated the Act to pay to the prevailing party the pro rata share
of the latter's fact-finding costs incurred as a result of the
violation. Sanford Teachers Association v. Sanford School Committee,
MLRB No. 77-36, slip op. at 4 (Sept. 14, 1977). We decline to pro-
vide such a make-whole remedy in this case because of the short
notice that the Employer gave the Union of the former's objection to
the submission of the proposal at issue to fact-finding. Despite
the requirement contained in Rule 5.05(A) of the Board's Fact
Finding Rules that fact-finding briefs be submitted to the panel and
to the other party "at least five (5) working days prior to the date
of the hearing," the relevant portion of the Employer's fact-finding
brief--the first notice to the Union of its objection to the sub-
mission of the proposaal to fact-finding because of its status as a
permissive subject of bargaining--was not mailed to the Union until
November 6, 1987, two working days prior to the date of the hearing
and was not received by the Union until the day prior to the
hearing. In the circumstances, we conclude that the cease and
desist order is all that is needed to remedy this violation and to
effectuate the policies of the Act.
Remark of Union Bargaininq Team Member
After the fact-finding proceeding of November 10, 1987, had
been under way for approximately eight hours, a short recess was
declared. At that time, between 12:30 and 1:30 a.m. on November 11,
a member of the Union bargaining team and the chairman of the
Employer Board of Directors left the fact finding room together,
intending to go outside the building to enjoy a cigarette break.
While making their way to the outside exit, the two men engaged in a
casual conversation, during which the unit employee made a comment
-30-
to the effect that "[y]ou know, if we can get rid of Annalee we can
get this thing settled a lot faster." The Employer charges that the
employee's statement violated 26 M.R.S.A. 964(2)(A).
The test for a violation of 964(2)(A), when alleged directly,
as compared with a derivative violation based on circumvention of a
party's collective bargaining representative, is whether public
employees or public employee organizations engage in conduct which
can reasonably be construed as interfering with the employer's
selection of its representative for purposes of collective
bargaining or the adjustment of grievances. NLRB v. I.B.E.W.,
Local 340, 780 F.2d 1439, 1492-93 (9th Cir. 1986), aff'd 481 U.S.
573, 579 n.3, 107 S.Ct. 2002, 2007, 95 L.Ed.2d 557, 565-566 (1987).
Two elements must be present to establish a violation: (1) the
"target" of the charged conduct must be an individual who represents
a public employer in collective bargaining or in the adjustment of
grievances, Northern Aroostook Teachers Association v. M.S.A.D.
No. 27 Board of Directors, MLRB No. 81-52, 4 NPER 20-13003, slip op.
at 8 (Nov. 19, 1981) and (2) the conduct of the public employees or
public employee organization must interfere with, restrain or coerce
the employer in the selection of such representative. Southern
Aroostook Teachers Association v. Southern Aroostook Community
School Committee, supra, slip op. at 28. A promise of benefit or
threat of retaliation, if a particular lawful course of conduct is
pursued, constitutes interference, restraint or coercion.
In the instant case, the subject of the Union bargaining team
member's remark was the Employer's chief negotiator. Second, the
statement can reasonably be interpreted as suggesting that speedy
resolution to the lengthy bargaining dispute was possible, if the
Employer were to "get rid of" its chief negotiator. The statement
was made to the chairman of the Employer's board of directors--the
chief Employer negotiator's employer--by a member of the Union
bargaining team. We are cognizant of the casual context in which
the statement was made; however, its intent was to effect removal of
the Employer's bargaining representative through an implied promise
of quicker settlement of the successor bargaining agreement. In the
-31-
circumstances, the majority of the Board concludes that the state-
ment at issue interfered with, restrained or coerced the Employer in
the selection of its representative for purposes of collective
bargaining in violation of 964(2)(A) of the Act.
Problems Producing Final Written Agreement
In early March, 1987, The Union and the Employer began nego-
tiations for a successor collective bargaining agreement, to replace
the agreement that was to expire in August, 1987. The parties
reached agreement on ground rules for their negotiations on March 9,
1987. During the spring and summer of 1987, the parties negotiated
directly for six meetings and also participated in five mediation
sessions. Although some tentative agreements were reached during
the course of direct negotiations and mediation, the Union filed for
fact-finding on September 21, 1987. In a further attempt to reach
agreement, the parties met with the mediator for one additional
meeting, shortly before fact-finding.
A fact-finding proceeding was conducted on November 10, 1987.
At the outset, the parties and the fact finders participated in a
"marathon" mediation effort in an attempt to settle the dispute or,
at least, to narrow the issues to be formally submitted to the fact
finders. Four issues were resolved. The remaining 17 issues were
heard by the fact-finding panel and were addressed in their recom-
mended settlement. During the course of the fact-finding pro-
ceeding, the Employer learned that it had made overpayments toward
the unit employees' health insurance premiums for part of the
1986-87 school year. The Employer never attempted to recoup this
overpayment from the unit employees.
After receipt of the report of the fact finders, the parties
met on November 30 and December 2 and reached final tentative
agreement in settlement of the successor agreement in the early
morning hours of December 3, 1987. MTA UniServ Director Stewart
Kinley assisted the Union bargaining team during the post fact-
finding negotiations. Rule 4 of the parties' ground rules provided
that the chief negotiator for the Employer was responsible for pre-
-32-
paring the draft collective bargaining agreement and the Union chief
negotiator would then "communicate any corrections to the draft
either in writing or by telephone to the [Employer's] chief
spokesman." On December 3, 1987, the Employer's chief negotiator
prepared a draft of those portions of the expired agreement that had
been changeq by the parties' negotiations and said draft was
received by the chief Union negotiator on December 4.
The parties' chief negotiators spoke by telephone twice on
December 6, 1987. During the course of these conversations, the
Union negotiator pointed out several typographical errors in the
draft agreement and indicated the following substantive problems
therein: (1) the draft failed to mention that the wage increase
agreed to was retroactive to September 1, 1987, and that the dif-
ference, between the wages paid to the Union employees and the wages
due them pursuant to the negotiated retroactive salary increase, was
to be paid in a lump-sum, "hopefully" by December 11, 1987; (2) the
draft contained two wage articles while the expired agreement had
only had one salary article; (3) the salary article contained provi-
sions permitting the Employer "upon the recommendation of the admin-
istration to withhold any increment of increase as set forth in [the
agreed to salary] schedule in case of unsatisfactory work" and
allowing the Employer "the right to grant additional consideration
for outstanding service"; and (4) language stating that the
"printed salaries shall be for the purpose of initial hire only."
In response to the Union negotiator's comments, the Employer nego-
tiator prepared a second draft agreement on December 6, 1987.
The two chief negotiators met at the Employer's Board of
Directors meeting of December 7, at which time the Employer nego-
tiator delivered the second draft agreement to the Union negotiator.
The Employer negotiator outlined the terms of the final tentative
agreement to the school committee and the latter ratified the
agreement at that time. Meeting with the Union negotiator in a
separate room, the Employer negotiator noted the Union negotiator's
comments on a draft copy of the agreement. Additional typographical
errors were noted and the format of the salary article was
-33-
discussed. The Employer negotiator indicated that the expired
agreement only contained one salary article because it was only a
one-year agreement and the draft had two articles because it was a
two-year agreement, with substantially different salary scales for
each year. The Union negotiator indicated that she would consider
this explanation and "get back" to the Employer representative. The
"additional salary" provisions concerning poor and outstanding per-
formance were also mentioned with the Employer negotiator, indi-
cating that these provisions had been in the parties' expired
agreement and were never previously raised as an issue; therefore,
they were properly included in the successor agreement. Finally,
the issue of the "lump sum" retroactive pay language was discussed.
Although the Union negotiator testified that the same was discussed,
the Employer negotiator made no notation concerning the "initial
hire" language on her draft copy.
On December 11, 1987, the Employer made the lump sum retro-
active wage increase payment to each unit employee. Also on
December 11, the Union negotiator wrote a letter to the Employer
negotiator with comments on the second draft agreement. The cover
letter sent to the Employer negotiator indicated that the enclosed
"marked up" excerpts of the draft agreement: (1) formatted the
salary provisions in a single article and added "new language that
we have agreed to," (2) included the retroactive pay language in the
duration article and (3) corrected a typographical error in the sick
leave bank article. Although not mentioned by the cover letter, the
following is crossed out in the draft: "The printed salaries shall
be for the purpose of initial hire only." And, typed within paren-
theses on the draft, is the statement "[t]his is not in our T.A."
Subsequent to December 11, the chief Union negotiator contacted
UniServ Director Kinley and asked for his assistance in resolving
the drafting problems. Mr. Kinley spoke with the Employer nego-
tiator, "over the holidays," and, while they discussed the language
problems in a general way, Mr. Kinley indicated that he had to meet
with the unit employees to learn their specific concerns. There was
also some question as to whether Mr. Kinley had authority to repre-
-34-
sent the union in the discussions. Also during this time period,
the Union bargaining team met with UniServ Directors Kinley and
Belleville and with Shawn Keenan, Chief Counsel of the Maine
Teachers Association. Based on their reading of the Board's deci-
sion in AFSCME, AFL-CIO, Council 74 v. Cumberland County Commis-
sioners, MLRB No. 83-09, 6 NPER 20-14029, slip op. (June 30, 1983),
the Maine Teachers Association representatives advised the Union not
to sign any agreement until the Union was satisfied that it accu-
rately reflected the parties' agreement.
On December 29, 1987, the chief Employer negotiator sent a
third draft agreement to the Union negotiator, with a copy to
UniServ Director Kinley. The draft agreement corrected several
typographical errors, retained the two-salary article format, and
failed to include language about payment of the retroactive wage
increase. The chief Employer negotiator explained the Employer's
position on the latter two issues by stating
:
I did not use the format you requested because
after giving it some thought and trying to please the
Board in having each year's salary begin on a new page,
I left the format alone. I really do not think it is a
negotiable item where we are responsible for the repro-
duction unless, of course, there is a substantive change.
You did not cite any substantive change when we discussed
it. The reason you gave is that is how the current con-
tract is produced. However, since the current agreement
is only a one year agreement, I do not believe that is
the model.
I did not add the language you requested in the dura-
tion language since the language printed is as proposed by
the Association at the outset of bargaining. Not only is
the new langauge suggested a new proposal but is really
implementing language. The printed language is clear the
effective date is the first work day at the first of the
year, the salary has been adjusted as it if had been paid
from day 1 as well as all other benefits.
The issue of the lump sum is a moot one since the
checks have already been issued and I imagined spent by
now. That too is new langauge and implementing language.
It is not uncommon to take care of loose ends with regard
to implementing that does not appear in the contract but
it is a one time event that will not reoccur during the
term of the agreement. I believe that describes the two
new additions you are requesting.
-35-
This letter and the accompanying draft agreement was the first sub-
stantive exchange between the parties since the December 11 letter
from the chief Union negotiator.
At the close of a stipends committee meeting on January 14,
1988, the chief Union negotiator mentioned to the Employer nego-
tiator that she was "preparing a draft of the contract for your
signature." In response to the draft agreement of December 29,
1987, the Union negotiator wrote a letter to the Employer negotiator
on January 19, 1988. The letter indicated four problems with the
third draft: (1) format of salary article(s), (2) no lump sum
language included, (3) inclusion of "initial hire" language, and
(4) problem with the additional salary provisions regarding
"unsatisfactory work" and "outstanding service." The letter went
on to state:
You have continued to include the initial hire language
in your 88-89 draft of December 29, 1987. This language
was discussed at the table November 31 [sic] and
December 2, 1987, and not agreed to. It is not included
in our signed tentative agreements and therefore has no
place in this contract.
On January 25, 1988, the chief Employer negotiator telephoned
UniServ Director Kinley and, after it was ascertained that the
latter had authority to represent and bind the Union, the four
outstanding problems concerning the December 29, 1987 draft of the
agreement were resolved, subject only to Mr. Kinley's checking with
the Union Chief Counsel as to whether the langauge of the duration
article, that the agreement was effective September 1, 1987, would
solve the retroactive payment issue. Mr. Kinley stated that he
thought it did; however, he wanted to make sure, prior to binding
the Union on that issue. On January 28, 1988, the chief Employer
negotiator wrote a letter to UniServ Director Kinley with copies to
the Superintendent and the chief Union negotiator, confirming the
telephone conversation of January 25. The parties' substantive
agreements were referred to as follows:
1. The retroactive language because the Association was
concerned about a remedy should some have been paid
incorrectly. You suggested maybe a side letter. I
-36-
asked you what was wrong with the duration language
which states clearly the contract is effective the
first day of the work year. I pointed out this was
langauge that had been in the contract for quite some
time and is known as to its meaning since all benefits
have always been retroactive. You seemed to agree but
wanted to talk with Shawn and presuming Shawn would
agree as well, would talk to Donna. I was supposed to
call you on Monday but in rushing from place to place I
ran out of time. I did call on Tuesday and left a
message.
2. On Page 18 there was concern about the last sentence
of C. I told you this would be no problem as I told
you the week before. It was not in the tentative
agreement, I do not know from where I copied it and
had it been raised sooner, it would have been elimi-
nated.
3. You raised the issue of section F and G of Article 20
and 21. However, you said they would stay and if the
need arose we would worry about what they mean at the
time.
4. The salary scale format was the last issue. I have
prepared the format in the manner you suggested.
On January 27, 1988, the chief Union negotiator sent a draft
agreement that she had prepared to the chief Employer negotiator.
The latter had referred to this draft, in her letter to Mr. Kinley,
by stating:
It also seems Donna is preparing an entirely new
typed draft for some purpose. While she is certainly
free to type anything she wants, I will not have the
time to proof it and therefore will not sign it. The
enclosed pages attached to the pages you already have
have been carefully proofed over the years by the Asso-
ciation and District office staff and is on a disk so
that it should be errorless, therefore, it will be the
document used for official signature purposes. We are
really too busy to begin that process all over again.
In some respects, this draft agreement prepared by the union nego-
tiator did not reflect the accord reached between the Employer nego-
tiator and Mr. Kinley on January 25.
On or before February 3, 1988, the chief Employer negotiator
sent a fourth draft agreement to the chief Union negotiator. This
draft accurately reflected the substance of the parties' agreement.
-37-
The four areas discussed in the chief Employer negotiator's letter
of January 28 were addressed as follows: 1. The duration of
agreement article remained as originally drafted by the Employer
negotiator; 2. The "initial hire" language was deleted from the
salary article; 3. The additional salary provisions were retained;
and 4. The salary article was drafted as a single article with
separate sections for each of the agreement's two years.
In proofreading the draft, the chief Union negotiator noticed
that it inadvertently included a third year in the duration article.
This typographical error had been carried forward, unnoticed by
anyone, since the initial draft of December 3, 1987. On February 3,
1988, the Superintendent made the statement to the Union president
concerning the "recapture" of the retroactive wage payment, which
is discussed at length in a later section of this opinion.
Immediately prior to the Employer Board of Directors meeting on
February 8, 1988, the chief Union negotiator and the Superintendent
corrected the typographical error in the duration article and the
Union president and chief negotiator signed the successor collective
bargaining agreement. The Employer representatives had signed the
agreement earlier.
The Union has charged that the Employer's conduct, between the
attainment of the final tentative agreement and signature of the
successor collective bargaining agreement, constituted a violation
of the duty to negotiate in good faith. In general, this Board has
held that a finding that a party has failed to negotiate in good
faith is based on the totality of the circumstances surrounding that
party's conduct. Among the relevant factors to be considered are
whether the charged party has:
. . . met and negotiated at reasonable times, observed
the negotiating ground rules, offered counterproposals,
made compromises, accepted the other party's positions,
explained and provided justification for their own posi-
tions, reduced tentative agreements to writing, and par-
ticipated in the dispute resolution procedures.
Auburn Firefighters Ass'n v. Valente, supra, slip op. at 10.
A review of the above facts indicates that the Employer negotiated
-38-
in good faith in this case. The Employer met and negotiated with
the Union, observed the ground rules, made compromises, accepted the
Union's positions, reduced tentative agreements to writing, and par-
ticipated in the dispute resolution procedures.
We have also held that, despite generally negotiating in good
faith, certain actions by a party so completely frustrate the
bargaining process that they inherently constitute a violation of
the duty to negotiate in good faith. Among such inherently viola-
tive acts is the refusal to submit the final tentative agreement to
a principal party for ratification. Teamsters Local Union No. 48 v.
City of Westbrook, MLRB No. 89-05, 11 NPER ME-20001, slip op. at 10
(Oct. 25, 1988). Had the Union proven its allegation in this case,
the Employer's conduct may well have constituted such an inherently
violative act.
In the instant case, the responsibility for the substantial
delay in reducing the final tentative agreement into a formal
collective bargaining agreement must be borne by both parties. The
Employer negotiator promptly prepared a draft agreement within 24
hours of the final tentative agreement's being reached. The Union
negotiator promptly voiced her objections to said draft and a second
draft addressing many of the problems raised was produced by the
Employer negotiator, again within 24 hours of learning of the
objections.
Of the four substantive objections raised by the Union during
the telephone conversations of December 6, 1987, two appeared to
have "fallen through the cracks" by the time the Union negotiator
reduced the Union's objections to writing on December 11. The cover
letter sent to the Employer negotiator on that date indicated three
problems with the second draft: the format of the salary article,
the retroactive payment problem and a new issue--a typographical
error in the sick bank article. Upon reading that the Union's
objection to the salary article appeared to be limited to the
article's format, the Employer negotiator did not, by her own
admission, read the draft of that article attached to the cover
letter. There was no mention in either the cover letter or in the
-39-
attachment concerning the "additional salary" provisions. In the
circumstances, we conclude that, while the Employer negotiator might
have been better advised to read both the cover letter and the
attached excerpts of the draft agreement, her failure to do so was
not unreasonable.
There was then approximately two and a half weeks when no
substantive exchange occurred between the parties. The December
holidays fell within this period, including school vacation and the
chief Union negotiator's trip to Connecticut to visit her family.
The next event was the chief Employer negotiator's preparation and
distribution of the third draft agreement, on December 29, 1987.
The Union then waited almost three weeks before communicating its
detailed objections to the draft to the Employer's chief negotiator.
Six days later, the chief Employer negotiator telephoned UniServ
Director Kinley and the problems were resolved.
In allocating responsibility for the delay, we have also exam-
ined the particular issues involved. The four issues separating the
parties were: (1) the format of the salary article, (2) the retro-
active payment question, (3) the inclusion of the "initial hire"
language, and (4) the additionial salary provisions. The formatting
issue should have been a non-issue, in our view. There is no single
"right way" to draft a collective bargaining agreement, so long as
the written document reflects tne substance of the parties' agree-
ment. Second, the retroactive payment question, particularly after
the lump sum payments had been made on December 11, should also have
readily been resolved, as it ultimately was, by referring the matter
to the Maine Teachers Association's chief counsel. The last two
questions clearly indicate the shared responsibility for the delay
at issue. The Employer inadvertently included language that had not
been agreed to and the Union sought to delete language that had
never been at issue during the negotiations.
Our observation of the witnesses and their demeanor lead us to
conclude that both chief negotiators were honest and forthright in
their testimony. While the Union negotiator believes that she com-
municated the objection concerning the "initial hire" language to the
-40-
Employer on both December 6 and 7, 1987, we find that, in the face
of all of the typographical errors and other issues raised at that
time, the Employer's chief negotiator simply did not realize that
the "new hire" language issue was being raised. Said issue was not
clearly and unambiguously raised again until the Union negotiator's
letter of January 19, 1988. In her letter of January 25, the
Employer negotiator acknowledges her error and notes that she had
become aware of the problem at about the time of the January 19
letter.
The miscommunication evidenced in this case is a symptom of the
lack of trust between the parties. We are at a loss to understand
why, when first faced with the problems that divided them, neither
party served the other with a ten-day notice, pursuant to 965(1)(B)
of the Act. A face-to-face meeting and line-by-line review of the
draft agreement would probably have resolved this controversy in a
more timely, it not a more amicable, fashion. In the circumstances,
we hold that the conduct of the Employer's chief negotiator, in pre-
paring the formal successor collective bargaining agreement, did not
violate 964(1)(E) of the Act.
Superintendent's Statement Concerning Recapture of Retroactive Wage
Payment
As was noted above, the Union and the Employer reached final
tentative agreement on their successor collective bargaining
agreement on December 2, 1987. This agreement provided that the
wage increase embodied in the successor agreement would be retroac-
tive to September 1, 1987, and that the difference between the wages
paid to the unit employees since September 1 and said retroactive
wage increase would be paid to each employee in one lump sum,
"hopefully" by December 11, 1987. The Employer overcame some data
processing difficulties and made the lump sum retroactivity payment
to the unit employees on or December 11, 1987. Subsequent to the
payment of the negotiated retroactive wage increase, the parties
experienced the problems in converting their final tentative
agreement into a formal collective bargaining agreement described
-41-
in detail above.
On Wednesday, February 3, 1988, the Superintendent called the
Union president out of a study hall that the latter was supervising
and, in the presence of another unit employee, informed the Union
president that, on the previous Monday, the Employer Board of Direc-
cors had authorized the Superintendent to "reclaim" the retroactive
wage increases that had been paid to the unit employees, unless the
contract was "settled" by that Friday, February 5, 1987. The
Employer intended to recapture the amount of the retroactive payment
and wage increase already paid through a payroll deduction. It was
unclear to the Union president whether the Employer was contem-
plating the recapture of the entire amount in a single payroll
deduction. The sum to be recaptured exceeded the amount of their
pay check, for a normal two-week pay period, for most of the unit
employees.
At the time of the conversation, the Union president was aware
that the Union's chief negotiator was in the process of proofreading
the most recent draft collective bargaining agreement prepared by
the Employer's chief negotiator and the Union negotiator had not
voiced any problem with the draft document. The Union president
told the Superintendent that there was no problem with the
agreement; however, since both the Union president and chief nego-
tiator would be away from the district, on personal business, on
February 5, he did not think that it would be possible to sign the
final agreement by that time. Although the Union representatives
did not sign the successor collective bargaining agreement until
February 8, 1988, the Employer did not withhold any portion of the
unit employees' wages on February 5.
As we have stated above, a public employer violates 26 M.R.S.A.
964(1)(A) if it engages in conduct which may reasonably be
construed as interfering with the free exercise of employee rights
protected by the Act. The Board has held that employer threats of
retaliation against employees for their exercise of protected
rights, Teamsters Local Union No. 48 v. Town of Wells, MLRB No.
84-29, 7 NPER 20-16002, slip op. at 15-16 (Oct. 9, 1984); Teamsters
-42-
Local Union No. 48 v. Town of Bar Harbor, MLRB No. 82-35, 5 NPER
20-14004, slip op. at 13 (Nov. 2, 1982), or promises of benefit in
return for employee forbearance from the exercise of statutory
rights, Teamsters Local Union No. 48 v. Town of Kittery, MLRB No.
84-25, 7 NPER 20-15018, slip op. at 7-8 (July 13, 1984), constitute
unlawful interference, restraint or coercion.
The Board has indicated that a party is justified in refusing
to sign a draft collective bargaining agreement, which that party
believes does not accurately reflect the agreement reached at the
bargaining table. AFSCME, AFL-CIO, Council 74 v. The Cumberland
County Commissioners, supra, slip op. at 11-13. The proper course
to follow in such instances (and that followed in this case) is for
the parties to attempt to resolve their differences through the
bargaining process. The Superintendent's statement, made away from
the bargaining table and outside of the on-going discussion between
the parties' bargaining representatives, can only reasonably be
construed as being a threat in an effort to coerce the Union to sign
the draft agreement. In the circumstances, we hold that the Super-
intendent's statement to the Union president on February 3, 1988,
constitutes a violation of 964(1)(A) of the Act.
Union Negotiator's Statement at School Committee Meeting
Immediately prior to the school committee meeting of February 8,
1988, the Union president and chief negotiator met with the Superin-
tendent. A typographical error in the final draft of the successor
collective bargaining agreement was corrected and the Union repre-
sentatives signed the document that had previously been signed by
the Employer. At the beginning of its last meeting prior to that of
February 8, the Union's chief negotiator briefly addressed the
school committee and stated that the parties had encountered some
problems in finalizing the draft of their successor agreement;
however, they were close to agreement and expected to have a signed
agreement shortly.
During the "comments from the public" portion of the February 8
school committee meeting, the Union's chief negotiator outlined the
-43-
problems that had arisen in drafting the successor agreement, from
the Union's perspective. The Union negotiator stated that, in her
view, the principal impediment had been that, despite having
repeatedly discussed particular problems with the Employer's chief
negotiator, the latter produced several successive contract drafts
that failed to address the Union's concerns. The Union negotiator
stated that the Union's major problems with the draft documents
were:
Number 1, it did not include all of the tentative
agreements we had signed; number 2 it created a
new article which was unilaterally created not by
both parties, and number 3 it added language which
was not agreed to in the tentative agreements.
The Union negotiator continued by stating that a similar drafting
problem, involving the Employer's chief negotiator, had arisen in a
case before this Board some years earlier and, based on the Board's
decision in that case, the Union's attorney recommended that the
Union not sign the draft agreement until after the language problems
had been resolved. The statement further indicated that, through
discussions between the Union's "advisors" and the Employer's chief
negotiator, the final agreement language had been resolved. The
Union negotiator concluded her comments by stating that, while the
level of trust between the Union and the Employer was then quite low
and communications had been difficult during the negotiations, hope-
fully future negotiations between the parties would be more har-
monious.
The relevant Board precedent is outlined in conjunction with
our foregoing discussion, concerning the remark of a Union bargain-
ing team member made during a break in the fact-finding proceeding.
The Union at no time refused to bargain with the Employer's chief
negotiator and the Union negotiator's remarks explicitly stated that
the drafting controversy had been resolved with the Employer's
chief negotiator. In an analogous case, the Board stated:
Even though the [employer's] bargaining team was engaging
in bad faith bargaining, the Association was obligated
by Section 965(1) to continue to attempt to negotiate
with the bargaining team, while at the same time, if it
-44-
so chose, attempting to rectify the bargaining team's
misconduct through its statutory remedies. If in fact
the Association wanted to meet with the [employer's board
of directors] to discuss the bargaining team's negative
attitude, a proper subject for a meeting so long as the
Association did not attempt to interfere with the
[employer's] selection of their bargaining representa-
tives, then the Association should have clearly and
unambiguously so stated in its letter. We conclude that
the Association's request to meet for a serious discussion
of all issues constitutes a breach of the Association's
duty to bargain in violation of Section 964(2)(B).
M.S.A.D. No. 22 Board of Directors, supra, slip op. at 8 (footnote
omitted). The thrust of the comments at issue focused on the con-
duct of the Employer's chief negotiator and the concluding remarks
indicated that the purpose of the statement was to avert a
recurrence of the problem in future negotiations between the par-
ties. The Union negotiator's statement contained neither threats
nor promises of likely results, in the event that the Employer
replaced its chief negotiator. Although we are aware that the
Employer Board of Directors voted, at some later time, not to renew
its contract with its chief negotiator/management consultant, we
nevertheless conclude that the comments of the Union's chief nego-
tiator at the school committee meeting of February 8, 1988, did not
interfere with, restrain or coerce the Employer in the selection of
its bargaining representative.
Employer Domination of Union
The Union's final contention was that the Employer's conduct
violated 26 M.R.S.A. 964(1)(C). We have often noted that this
section of the Act "is directed at the evil of too much financial or
other support of, encouraging the formation of, or actually par-
ticipating in the affairs of the union and thereby potentially domi-
nating it." Coulombe v. City of South Portland, supra, slip op. at
25; Teamsters Local Union No. 48 v. Town of Fort Fairfield, MLRB
No. 86-01, 9 NPER ME-17008, slip op. at 13 (Jan. 24, 1986);
Teamsters Local Union No. 48 v. Town of Kittery, supra, slip op.
at 4. The Employer neither participated in nor otherwise supported
the activities of the Union; therefore, the Employer did not violate
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964(1)(C) of the Act.
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:
1. That the Maine School Administrative District No. 17
Board of Directors and Kenneth Smith, Superintendent
of Schools, their representatives and agents, cease
and desist from:
a. Interrogating officers or members of the
Oxford Hills Teachers Association concerning
the exercise of rights protected by the
Municipal Public Employees Labor Relations
Law by members of said Association;
b. Threatening members of the Oxford Hills
Teachers Association outside of the normal
course of collective bargaining with the
recapture of wages previously paid to them,
unless said members forego rights protected
by the Act; and
c. Interfering with, restraining or coercing
their employees in any other manner in the
exercise of rights guaranteed them by Section
963 of the Act.
2. That the Oxford Hills Teachers Association, its
members, agents and bargaining representatives,
cease and desist from:
a. Demanding to negotiate, in violation of 26
M.R.S.A. 964(2)(B), over its non-mandatory
collective bargaining proposal concerning
non-instructional teacher assignments during
duty free periods in the school day;
b. Suggesting to the M.S.A.D. No. 17 Board of
Directors that the lengthy negotiations for
a successor collective bargaining agreement
could be more speedily concluded if the
Employer changed bargaining representatives;
and
c. Interfering with, restraining or coercing
the M.S.A.D. No. 17 Board of Directors in
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any other manner in the selection of its
representative for purposes of collective
bargaining.
3. That all other allegations of prohibited practices
by either party, alleged in the Union's complaint
or in the Employer's amended counterclaim, which are
not specifically addressed in paragraphs one and two
above, be and hereby are DISMISSED.
Dated at Augusta, Maine, this 16th day of June, 1989.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their rignt pursuant to 26
M.R.S.A. 968(5)(F) (1988) /s/_____________________________
to seek review of this Peter T. Dawson
decision and order by the Alternate Chairman
Superior Court by filing a
complaint in accordance with
Rule 80B of the Rules of Civil
Procedure within 15 days of /s/_____________________________
the date of this decision. Carroll R. McGary
Alternate Employer Representative
Alternate Employee Representative Gwendolyn Gatcomb filed a separate
opinion, dissenting in part.
OPINION
While agreeing with the results reached by my colleagues in
most of their opinion, I dissent in part. I believe that the
Superintendent's order to the Union president on November 10, 1987,
constitutes interference, restraint or coercion with the latter's
performance of his duties as a union officer, in violation of 26
M.R.S.A. 964(1)(A). The relevant facts, cited at pages 21-22 of
the majority opinion, are incorporated herein.
In the circumstances, the proper course for the Superintendent
would have been as follows: (1) notify the Union president of the
established building-use policy that had been incorporated by
reference in the parties' collective bargaining agreement, (2) note
that permission to hold that proposed gathering had neither been
sought nor granted pursuant to the established policy, and (3)
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inform the union president of the likely consequences--including
the imposition of discipline--that would be incurred by anyone who
participated in the unauthorized gathering. Reviewing the Super-
intendent's order, cited at page 21 above, there is no violation
in the first paragraph thereof. This is a straightforward descrip-
tion of the circumstances with reference to the established
building-use policy. The unlawful portion of the order is as
follows:
Accordingly, this letter is for the purpose of ordering
you, as President of the Oxford Hills Teachers Associa-
tion to comply with collective bargaining Agreement by
maintaining the status quo and Board policy, and to
further make certain that bargaining unit members also
comply. Failure to do so will be considered insubordi-
nation by you . . . .
This order, directed to the Union president ex officio, had the
inherent effect of unlawfully interfering with, restraining or
coercing the Union president in the performance or his Union
duties.
The public employer and the bargaining agent participate as
equals in the bargaining relationship. A charge of insubordination
arises when a subordinate employee disregards an order from a
superior during the employment relationship. In the instant case,
it was proper for the Employer to threaten the imposition of
discipline against anyone, including tne Union president, who par-
ticipated in a violation of the established building-use policy.
The Employer went beyond the permissible by ordering the Union
president to prevent the violation and threatening to subject the
Union president to discipline, if the unit employees went forward
with the demonstration. Subjecting union officers to threats of
discipline merely because they hold Union office and making them
responsiole for the misconduct of other unit employees prevents
union officials from effectively representing the unit employees,
destroys the equality of the relationship between the public
employer and the bargaining agent, and makes possible the domination
of the latter by the former. For these reasons, the Superintend-
ent's order to the Union president of November 10, 1987, violated
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964(1)(A) of the Act.
Second, I cannot agree with my colleagues that the statement by
the Union bargaining team member, during a break in the fact-finding
proceeding and concerning the chief Employer negotiator, violated
any provision of the Act. Again, the relevant facts, reported at
pages 30-31 of the majority opinion, are incorporated herein.
Although the subject of the employee's remark was the
Employer's chief negotiator, I conclude that the casual comment at
issue, when considered in the factual context in which it was made,
cannot reasonably be construed as interfering with the Employer's
selection of its bargaining representative. Despite the remark, the
Union continued to negotiate with the chief Employer negotiator.
Even if the statement could somehow be construed as a promise in
return for replacement of the Employer negotiator, there was no
indication that the team member was speaking for the Union when he
made the remark. I have also considered the Employer's charge that
the employees' letter to the individual members of the Employer
board of directors, the unit employee's comment, and the Union chief
negotiator's statements at a school committee meeting constitute a
pattern of conduct in which the Union was seeking removal of the
Employer's chief negotiator and I find this allegation to be without
merit.
Dated at Augusta, Maine, this 16th day of June, 1989.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Gwendolyn Gatcomb
Alternate Employee Representative
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