SAD #43 Teachers Assoc. v. MSAD #43 Board of Directors and MLRB, 
CV-79-541, modifying MLRB Case No. 79-36, aff'd 432 A2d 395 (Me. 1981). STATE OF MAINE SUPERIOR COURT KENNEBEC, SS CIVIL ACTION Docket No. CV-79-541 M.S.A.D. No. 43 ) TEACHERS ASSOCIATION, ) ) Plaintiff ) ) v. ) ) M.S.A.D. No. 43 ) BOARD OF DIRECTORS ) DECISION ) And ) ) MAINE LABOR RELATIONS BOARD, ) ) Defendants ) This is an appeal, filed pursuant to 26 M.R.S.A. 968(5)(F) and Rule 80B, M.R.Civ.P., in which Plaintiff, M.S.A.D. No. 43 Teachers Association (hereinafter "Association") seeks review of a decision and order of Defendant, Maine Labor Relations Board (hereinafter "M.L.R.B."). That decision concerned 4 prohibited practice complaints which were consolidated before the M.L.R.B.. Two complaints were filed by the Board of Directors of M.S.A.D. No. 43 (hereinafter "Directors") on November 7, 1978 and January 5, 1979 and the other two were filed by the Association on December 4, 1978 and December 27, 1978. No issues have been raised in the arguments or briefs of the parties with respect to the M.L.R.B.'s decisions in Cases No. 79-45 and 79-47. Consequently, they will not be discussed herein, and the M.L.R.B.'s decisions therein are affirmed. For the reasons stated below, the court affirms the decision of the M.L.R.B. in Case No. 79-39, but sustains Plaintiff's appeal in part and vacates the decision in part in Case No. 79-36. In April, 1978, the Directors and the Association commenced negotiations over a collective bargaining agreement to succeed an agreement due to expire on (2) August 31, 1978. At the initial bargaining session on April 19, 1978, the Directors and the Association exchanged proposals. On May 11, 1978, the Directors informed the Association that they refused to bargain over the Association's proposals concerning teacher rights, school calendar, teaching hours and teaching load, and teacher evaluation because they considered these to be non-mandatory subjects of bargaining. The Directors reiterated this position in numerous negotiating sessions while the Association repeatedly insisted that these proposals be negotiated. In August, 1978, the Association declared an impasse and requested that the M.L.R.B. assign a mediator and factfinder as provided in 26 M.R.S.A. 965. A fact finding hearing was held on October 10, 1978 and a report was issued November 7, 1978. Throughout this process both parties maintained their same position as to the four proposals of the Association described above. In Case No. 79-36 filed with the M.L.R.B., the Directors charged that the Association committed prohibited practices in violation of 26 M.R.S.A. 924(2)(B) by insisting to impasse that the Directors negotiate over non-mandatory subjects of bargaining, while the Association charged that the Directors violated 26 M.R.S.A. 964(1)(E) by refusing to negotiate over mandatory subjects of bargaining. After finding some of the proposals to be mandatory subjects and others to be non-mandatory, the M.L.R.B. found both parties to have committed sone prohibited practices and a cease and desist order was issued. In Case No. 79-39, the Association charged, inter alia, that the Directors violated 26 M.R.S.A. 964(1)(A) by paying teachers of equal qualifications at different rates. For school year 1978-79, newly acquired teachers were being paid according to their years of experience under the salary schedule of the 1977-78 contract; whereas, returning teachers were being paid at the same rate (3) (or step) that they had received for school year 1977-78, despite the fact that they had gained an additional year of experience. The M.L.R.B. determined it proper for returning teachers to be paid at the same level as the previous year but found it to be a prohibited practice to pay new teachers at a higher level. It was ordered that the Directors cease and desist from paying teachers with the same experience and level of education at different salary rates. The Association raises 4 issues on appeal. 1. Did the M.L.R.B. have jurisdiction to determine the negotiability of a contract proposal in a prohibited practice carplaint? 2. Did the M.L.R.B. err in ruling that it was a per se violation of 26 M.R.S.A. 964(2)(B) for the Association to insist to impasse that the Directors negotiate as to non-mandatory subjects of bargaining. 3. Was it error for the M.L.R.B. to hold that the Directors had no duty to bargain as to a whole paragraph of a proposal when the paragraph contained both mandatory and non-mandatory subjects of bargaining? 4. Was a cease and desist order an inadequate remedy for the violation of 26 M.R.S.A. 964(1)(A) committed by the Directors in paying teachers at different salary rates? DISCUSSION OF LAW Pursuant to 26 M.R.S.A. 968(5)(F) and Rule 80B, M.R.Civ.P., the Court is authorized to review decisions of the M.L.R.B., except that the findings of the M.L.R.B. on questions of fact shall be final unless shown to be clearly erroneous. I. The Association's first argument is that the M.L.R.B. lacked jurisdiction to determine the negotiability of contract proposals by means of a prohibited practice complaint. It is asserted that the Director's prohibited (4) practice complaint was premature since nothing more had occurred than a disagreement at the initial bargaining session. The Court disagrees. Pursuant to 26 M.R.S.A. 968(5)(A), the M.L.R.B. has jurisdiction to prevent any bargaining agent from engaging in prohibited acts as enumerated in 26 M.R.S.A. 964. Refusing to bargain is one of the prohibited acts enumerated in section 964. The duty to bargain is defined in 26 M.R.S.A. 965. Section 965(1)(c) makes it clear that the parties in this case were obligated to negotiate in good faith with respect to wages, hours, working conditions, and contract grievance arbitration, but that the Directors, as a public employer of teachers, were exempted from a duty to negotiate matters of educational policy. Thus, to decide whether the Directors or the Association had committed prohibited practices by either refusing to bargain a proposal or insisting that a proposal be bargained, it was a necessary function of the M.L.R.B.'s jurisdiction to determine whether the proposals concerned mandatory or non-mandatory subjects of bargaining. The Association's assertion that nothing more had occurred than a disagreenent at the initial bargaining session is untenable. The M.L.R.B. made a finding of fact, which is supported by substantial evidence in the record, that the Association insisted repeatedly that its proposals be negotiated through impasse, mediation and fact-finding. It was not until after this stage that the prohibited practice complaints were filed. II. The second argument raised by the Association is that the M.L.R.B. erred in finding the Association to have committed a per se violation of 26 M.R.S.A. 964(2)(B). The Association asserts that it acted in good faith in insisting to impasse that its proposals be negotiated and that the M.L.R.B.'s use of the per se rule developed in N.L.R.B. v. Wooster Division of Borg Warner Corp., 356 U.S. 342 (1958) was inappropriate. (5) In Borg-Warner, an employer had proposed two clauses for a collective bargaining agreement which were construed to be non-mandatory subjects of bargaining. The employer had insisted that these clauses be included in the contract as a condition precedent to his signing the collective bargaining agreement. The Court held that, entirely apart from any showing of bad faith, this was a per se refusal to bargain under sections 8(a)(5) and 8(d) of the National Labor Relations Act. (N.L.R.A.) The Court reasoned that by refusing to sign the contract the employer had, in effect, refused to bargain about the other mandatory subjects of the agreement. The per se rule of this case has been followed by the National Labor Relations Board (N.L.R.B.) and federal courts in countless cases. See: e.g. N.L.R.B. v. Davison, 318 F.2d 550, 554 (4th Cir. 1963); U.O.P Norplex, Division of Universal Oil Products Co. v. N.L.R.B., 445 F.2d 155, 157 (7th Cir. 1971). The duty to bargain under the N.L.R.A. is clearly analogous to 26 M.R.S.A. 964 and 965. Furthermore, the Law Court has established that in construing Maine Labor Relations law, the construction placed on analogous provisions of the National Labor Relations Act by federal courts is persuasive. State v. M.L.R.B., Me., 413 A.2d 510, 514 (1980); Churchill v. S.A.D. No. 49 Teacher's Ass'n., Me., 380 A.2d 186, 192 (1977); Caribou School Dept. v. Caribou Teacher's Ass'n., Me., 402 A.2d 1279, 1283 (1979). Thus, following the precedent of Borg-Warner, the M.L.R.B. applied the per se rule in this case. Once having determined that some of the Association's proposals concerned educational policy (a non-mandatory subject of bargaining), the M.L.R.B. found it to be a per se violation of 26 M.R.S.A. 964(2)(B) for the Association to insist to impasse that such proposals be negotiated. The Association does not contest the M.L.R.B.'s finding that these proposals concerned educational policy, and thus, were non-mandatory (6) subjects of bargaining. Rather, it is argued that Borg-Warner is distinguishable. The Association maintains that, unlike Borg-Warner, they never insisted that their proposals be included in the contract or that their inclusion was a condition precedent to their signing the agreement. Rather, they argue that they merely insisted that the proposals be negotiated under the mistaken, but good faith, belief that they were mandatory subjects of bargaining. The Court is unconvinced that these distinctions bring the Association outside the scope of the per se rule. First of all, the per se rule is applied entirely apart from any determination of whether the bargaining agent acted in good or bad faith. Thus, the Association's claim that they acted in good faith is irrelevent. Secondly, whether they are insisting that the proposals be included or that the proposals be negotiated, they have a right to neither. 26 M.R.S.A. 965(1)(c) specifically exempts the public employer of teachers from any obligation to negotiate matters of educational policy. Finally, by pressing their insistence to impasse, they have made the negotiation of these proposals a condition precedent to their signing the contract. By refusing to sign the contract, they have, in effect, refused to bargain about the other mandatory subjects in the agreement. Therefore, the M.L.R.B. was correct in applying the per se rule in this case. III. In the course of its decision, the M.L.R.B. adopted and applied a rule with respect to the duty of a party to bargain in response to a proposal which contains both mandatory and non-mandatory subjects of bargaining. The M.L.R.B. decided that if mandatory and non-mandatory subjects are comingled in a single paragraph of a proposal, the entire paragraph may be regarded as a non-mandatory subject and bargaining is not required. If, however, the proposal consists of several paragraphs, some of which involve mandatory subjects (7) and others which involve non-mandatory subjects, the paragraphs concerning mandatory subjects must be bargained. The Court rejects this as an arbitrary rule beyond the mandate of 26 M.R.S.A. 964 and 965. Under sections 965(1)(c) and 964(1)(E), the Directors had a statutory duty to negotiate in good faith with respect to wages, hours, working conditions and contract grievance arbitration. The effect of the M.L.R.B. rule is to exempt the Directors from their duty to negotiate such mandatory subjects when they are presented in the same paragraph of a proposal as other matters concerning educational policy. The M.L.R.B. has no authority to create such an exemption to a statutory mandate. While it may be preferable that the parties present each subject in a different paragraph, their failure to do so does not create an exemption from the duty to bargain. Furthermore, the Court considers the rule to be arbitrary. Under the M.L.R.B. rule, if a prcposal consisted of two sentences, one of which concerned wages and the second which concerned educational policy, the duty to negotiate the sentence concerning wages would turn on whether there was an indentation between the sentences. The clarity gained by an indentation is insufficient to overcome the conclusion that this is arbitrary. The M.L.R.B.'s discussion of the Association's proposals demonstrates the point. To conclude that a paragraph contains both mandatory and non-mandatory subjects, the M.L.R.B. proceeds to separate and characterize each of the subjects. After having done so, it is untenable for the M.L.R.B. to conclude that the subjects are "inseparable." The M.L.R.B. relies on Chee-Craw Teachers Ass'n. v. Unified School District No. 247, 593 P.2d 406 (Kan. 1979) and Pearl River Teachers Ass'n v. Pearl River Union Free School District, N.Y. Public Employment Relations Board, Case No. U-2914 (Oct. 13, 1978) as support for its rule. However, the (8) "topic" approach adopted in Chee-Craw specifically recognizes that if a proposal covers more than one subject it may be divided. In Pearl River, findings were made that the employer was willing to negotiate over the specific aspects of each proposal which were mandatory subjects and that the bargaining agent of the employees never indicated its willingness to negotiate the proposals without their non-mandatory aspects. These two specific findings were never made by the M.L.R.B. in this case. For the foregoing reasons, the Court concludes that the M.L.R.B. was in error in adopting its rule regarding negotiability. Since the M.L.R.B. only determined that certain aspects of the Association's School Calendar proposal and Teacher Evaluation proposal "may" be mandatory subjects of bargaining, this case must be remanded. The M.L.R.B. shall make findings as to which aspects of the proposals are mandatory subjects and which are non-mandatory subjects, regardless of whether they are in the same paragraph. The Directors shall be found to have violated 26 M.R.S.A. 964(1)(E) by refusing to negotiate the mandatory subjects, whereas the Association shall be found to have violated 26 M.R.S.A. (2)(B) by insisting to impasse that the non-mandatory subjects be negotiated. IV. In Case No. 79-39, the M.L.R.B. found the Directors to have acted properly in paying teachers returning for school year 1978-79 at the same step level as received for school year 1977-78. The violation of 26 M.R.S.A. 924(1)(A) was found as a result of newly acquired teachers of equal qualifications being paid at a higher step level. The M.L.R.B. ordered the Directors to cease and desist from paying teachers who have the same level of education and the same experience at different salary rates. The Association argues that it was (9) a prohibited practice for the Directors not to pay returning teachers with a salary step increment and that the cease and desist order was inadequate. The Court disagrees. The M.L.R.B. was correct in finding that the Directors had no duty to pay the returning teachers a salary step increment pursuant to the prior collective bargaining agreement while a successor agreement was being negotiated. Board of Cooperative Educational Services of Rockland County v. New York State Public Employment Relations Board, 41 N.Y.2d 753, 363 N.E.2d 1174 (N.Y. 1977). By not awarding a step increase the Directors were simply maintaining the status quo of the previous agreement during the course of negotiations. The Association argues that because the 1978-79 school year began August 18, 1979 and the prior collective bargaining agreement did not expire until August 31, 1979, returning teachers were entitled to a step increase for the 1978-79 school year pursuant to this agreement. The Court disagrees that the contract was intended to be so applied. The M.L.R.B.'s failure to find the contract so applicable was not error. The Court is also satisfied that limiting the remedy to a cease and desist order was not an abuse of discretion in light of the specific violation found. Title 26 M.R.S.A. 968(5)(c) provides that upon finding a party to have engaged in a prohibited practice, the M.L.R.B. shall order the party " cease and desist from such prohibited practice and to take such affirmative action... as will affectuate the policies of this chapter." In this case, to order the new teachers to pay back the additional amounts in salary they received would result in an economic benefit to the Directors for having violated section 964(1)(A). It would also be a detriment to the new teachers who were innocent beneficiaries of these amounts. Neither of these are policies which Chapter 9-A was intended to affectuate. Since no violation was (10) found with respect to the level of pay received by the returning teachers, it would have been improper for the M.L.R.B. to order that such teachers be paid additional amounts. The remedies under 26 M.R.S.A. 968(5)(c) are intended only to be remedial. Caribou School Department v. Caribou Teachers Ass'n., Me., 402 A2d 1279, 1284 (1979). Under these circumstances, limiting the remedy to a cease and desist order was not an abuse of disretion. The entry shall be: The decision of the Maine labor Relations Board with respect to complaints identified by the Board in its decision as Cases 79-39, 79-45, and 79-47 is affirmed. Plaintiffs appeal as it relates to case No. 79-36 in the Maine Labor Relation Board's decision is sustained in part and the decision is affirmed in part. That part of the decision on page 10, viz., "We accordingly decide that whenever possible, we will determine negotiability questions on a "topic" basis, regardless of the nuances of the individual proposal. As a general rule of law, a party will not violate its statutory duty to bargain by refusing to bargain over a single proposal which contains both mandatory and non- mandatory subjects." is hereby vacated. The remainder of the decision not relating to the above is hereby affirmed. The matter is remanded to the Maine Labor Relations Board for further proceedings consistent with this opinion. Dated: July 8, 1980 /s/________________________________ Roland J. Poulin, Judge, District Court (A.R.) assigned to the Superior Court.