STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-24
Issued: January 31, 2002
______________________________
)
A.F.T. LOCAL 3711, SANFORD )
FEDERATION OF TEACHERS, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
SANFORD SCHOOL COMMITTEE, )
)
Respondent. )
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AFT Local 3711, Sanford Federation of Teachers ("Federation"
or "union") filed a prohibited practice complaint on June 7,
2001, alleging that the Sanford School Committee ("Committee" or
"employer") unlawfully denied the Federation permission to attend
the dismissal hearing of an employee who refused to consent to
the presence of a Federation representative at that hearing. The
complaint also alleged that the employer unlawfully refused to
provide the union with information necessary to process
subsequent grievances regarding that employee's termination. The
complaint alleges that the employer violated section 964(1),
paragraphs A, C and E, of the Municipal Public Employees Labor
Relations Law (MPELRL) by its actions.
The parties filed a stipulated record on October 29, 2001.
Included in the record were certain exhibits in which substantive
information such as the nature of the charges against the
employee were redacted. The Federation filed a Motion to Compel
Production of Unredacted Exhibits on November 1, 2001. The last
brief was received on November 30, 2001, and the Board
deliberated on the motion and the complaint on December 11, 2001.
As a preliminary matter, the Board denies the complainant's
motion to compel production of unredacted exhibits. The motion
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is essentially a restatement of the claim of entitlement to
documents that was made in the complaint itself. The Feder-
ation's arguments in support of its motion fail to show why the
unredacted exhibits are necessary for the processing of its
prohibited practice complaint. As the Board concludes below that
the Federation is entitled to the information necessary to
process the grievances, the motion to compel production of
unredacted exhibits is moot.
STIPULATIONS
1. The Sanford Federation of Teachers, Local 3711, American
Federation of Teachers, AFL-CIO ("the Federation") is the
exclusive bargaining agent under the Municipal Public Employees
Labor Relations Law for a bargaining unit of all teachers,
guidance counselors, school librarians, social workers and school
nurses working in excess of 50% of the established work week
employed by the Sanford School Committee ("the Committee").
2. The Federation and the Committee are parties to a
collective bargaining agreement for the period from September 1,
1999 to August 31, 2001. A copy [was] attached [to the
Stipulated Record and designated] as Exhibit 1.
3. Christopher Ridge was employed by the Committee as a
teacher at the Willard School and was a member of the bargaining
unit and a member of the Federation at all times relevant to this
proceeding.
4. Mr. Ridge was represented by the Federation in several
matters during the 2000-2001 school year that immediately
preceded the commencement of dismissal proceedings, including but
not limited to:
5. On January 31, 2001, Mr. Ridge was represented by
Federation President Steve Walker and Federation Representative
Dan Unsinn at a meeting with Principal Charles Potter. See
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Exhibit 2.
6. On February 1, 2001, Mr. Ridge authorized Mr. Unsinn in
writing to pick up his personnel file from the main office of the
Sanford School Department. See Exhibit 2.
7. On or about February 9, 2001, Principal Potter met with
Federation President Walker concerning the scheduling of
Mr. Potter's observation of Mr. Ridge's classroom. See Exhibit 2.
8. On March 13, 2001, the Superintendent sent a letter to
Mr. Ridge inviting him to meet on March 16, 2001, concerning the
investigation of allegations. In that letter, the Superintendent
stated that Mr. Ridge was "entitled to have a representative of
the Federation present to advise and represent you during the
meeting." A redacted copy of the letter [was] attached [to the
Stipulated Record and designated] as Exhibit 3.
9. Mr. Ridge was represented by Attorney William Wilson at
the meeting of March 16, 2001. No Federation representative was
present. Attorney Wilson informed counsel for the Committee that
he would be representing Mr. Ridge. From that point forward,
counsel for the Committee communicated with Attorney Wilson con-
cerning Mr. Ridge's employment, and Attorney Wilson represented
Mr. Ridge on all phases of the dismissal proceedings that
followed.
10. Superintendent Kautz informed Mr. Ridge by letter dated
April 10, 2001 that [the] Committee was going to meet to consider
dismissal charges on April 23, 2001. In that letter, Mr. Ridge
was informed that he could be accompanied by "a representative of
the Federation and/or your attorney." A redacted copy of the
letter [was] attached [to the Stipulated Record and designated]
as Exhibit 4.
11. Superintendent Kautz informed Mr. Ridge by letter dated
April 25, 2001, that a dismissal hearing had been scheduled for
May 14, 2001 and stated therein: "You have the right to attend
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the hearing, to be represented by a Federation representative or
legal counsel . . . ." A redacted copy of the letter [was]
attached [to the Stipulated Record and designated] as Exhibit 5.
12. The notice letters identified in paragraphs [10 and 11]
as Exhibits 4 and 5 were not provided to the Federation by the
Superintendent.
13. On or about May 11, 2001, the Federation President Steve
Walker gave Sanford Superintendent Robert Kautz the letter
attached [to the Stipulated Record and designated] as Exhibit 6.
14. The Federation, through its legal counsel, asserted that
the Federation has a right and duty to participate in the teacher
dismissal proceeding, with or without the consent of Mr. Ridge.
15. Committee Attorney Bryan Dench, Esq. responded to the
Federation's demand to participate in the dismissal proceeding in
the letter that [was] attached [to the Stipulated Record and
designated] as Exhibit 7.
16. Commencing on May 21, 2001, the Committee conducted a
hearing to consider the dismissal of Christopher Ridge from his
employment. The hearing continued on the dates of May 29,
June 6, June 11, June 12, June 18, June 22, and July 2 and
concluded on July 16, when the Committee voted to dismiss him
from his employment.
17. Federation representatives Steve Walker and Daniel
Unsinn appeared at the start of the hearing and asserted the
Federation's right to be present at the hearing.
18. Attorney Dench consulted with the Federation
representatives and with Attorney Wilson on May 21, 2001, before
the hearing commenced to ascertain their positions on the matter
of Federation participation in the hearing. Attorney Wilson, on
behalf of his client, declined to agree to permit the Federation
to attend the hearing and declined Federation representation of
his client. Attorney Dench confirmed Mr. Ridge's position on
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this matter in a discussion that was recorded by a court
reporter, the transcript of which [was] attached [to the
Stipulated Record and designated] as Exhibit 8.
19. Federation representatives were not permitted to attend
any part of the dismissal hearing.
20. A court reporter was present to record all testimony at
the hearing.
21. The evidentiary portion of the hearing concluded on
July 2, 2001.
22. The Committee voted to dismiss Christopher Ridge on
July 16, 2001. A copy of the Committee's findings and reasons,
which is a public document under 1 M.R.S.A. 407(2), [was]
attached [to the Stipulated Record and designated] as Exhibit 9.
23. Christopher Ridge subsequently filed grievances pursuant
to Article 5 of the collective bargaining agreement concerning
the dismissal proceedings on July 9, 2001, July 13, 2001,
July 16, 2001, and July 23, 2001. Mr. Ridge informed the Sanford
administration that he would be represented by Attorney Wilson
with respect to these grievances. Federation representatives
were promptly informed of each of these grievances and afforded
the opportunity to be present at all grievance meetings as
provided in Article 5, Section B of the collective bargaining
agreement. Copies of relevant correspondence [was] attached [to
the Stipulated Record and designated] as Exhibit 10.
24. The Federation also filed a grievance dated July 20,
2001, challenging the Committee's decision to dismiss Mr. Ridge.
A copy [was] attached [to the Stipulated Record and designated]
as Exhibit 11.
25. The Superintendent held a meeting with Mr. Ridge and the
Federation pursuant to Article 5, Section H of the collective
bargaining agreement concerning the grievances on August 16,
2001. The Federation was represented by AFT representative Jerry
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Ashlock. Attorney Howard Reben was also present as Federation
legal counsel to advise Mr. Ashlock if necessary. Mr. Ridge was
present with his Attorney, William Wilson; and the Superintendent
and Committee were represented by Bruce Smith and Melissa Hewey.
During the meeting, the Federation requested access to the
transcript of the hearing. Counsel for the Committee responded
that the Federation could have access to the transcript only if
Mr. Ridge consented. Mr. Ridge, through his counsel, expressly
refused to consent to the Federation having access to the
transcript. Copies of a subsequent letter from Mr. Ashlock and
the response by Mr. Smith [was] attached [to the Stipulated
Record and designated] as Exhibit 12.
JURISDICTION
The Sanford School Committee is a public employer within
the meaning of 26 M.R.S.A. 962(7) and AFT Local 3711, Sanford
Federation of Teachers, is a bargaining agent within the meaning
of 26 M.R.S.A. 962(2) at all times relevant to this complaint.
The jurisdiction of the Board to render a decision and order lies
in 26 M.R.S.A. 968(5).
DISCUSSION
The complaint alleges that the employer violated 26 M.R.S.A.
964(1)(A), (C) and (E). Section 964(1)(A) makes it a prohibited
practice for an employer to interfere with, restrain or coerce
employees in the exercise of the rights guaranteed under section
963. Section 964(1)(C) prohibits an employer from dominating or
interfering with the formation, existence or administration of
any union. The complainant failed to present any argument on how
the employer's actions violated section 964(1)(A) or section
964(1)(C). That portion of the complaint alleging violations of
section 964(1)(A) and (C) will therefore be dismissed. The
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allegation that the employer's actions constitute a refusal to
bargain and is a prohibited practice under section 964(1)(E) is
addressed below.
There are two primary issues presented in this case. First,
does the Federation have the right to be present at a dismissal
hearing over the objections of the employee? If so, what is the
proper remedy for the employer's refusal to allow the Federation
to attend? Second, must the employer provide the bargaining
agent a copy of the transcript of the termination hearing? A
subsidiary issue is what effect the statute designating school
employees' personnel records as confidential has on the
bargaining agent's access to these records.
Attendance at the Dismissal Hearing
The Federation argues that 26 M.R.S.A 967(2) requires the
employer to give the Federation the opportunity to be present at
all meetings called not only for the resolution of a grievance
but also those investigatory and disciplinary hearings giving
rise to the grievance. The Board majority disagrees with this
expansive interpretation of section 967(2). The Board majority
concludes that a union does not have a right to be present at
an investigatory meeting unless the employee requests
representation.
The statutory language at issue is the proviso to the
exclusivity provision of the statute, found in 26 M.R.S.A. 967.
The final paragraph of section 967, subsection 2, states that the
certified bargaining agent is the exclusive representative and
must represent all within the unit without regard to union
membership:
provided that any public employee at any time may
present his grievance to the public employer and have
such grievance adjusted without the intervention of the
bargaining agent, if the adjustment is not inconsistent
with the terms of a collective bargaining agreement
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then in effect and if the bargaining agent's represen-
tative has been given reasonable opportunity to be
present at any meeting of the parties called for the
resolution of such grievance.
The Maine Labor Relations Board has never been called upon
to interpret the proviso quoted above. In situations such as
this where the language of Maine's statute is comparable to the
federal act, the Board will turn to the decisions of the National
Labor Relations Board and the federal courts for guidance in
interpreting Maine law. See Hughes v. University of Maine, 652
A.2d 97, 99 (Me. 1995), and Lundrigan v. Maine Labor Relations
Board, 482 A.2d 834, 836 (1984). Section 967(2) is nearly
identical to the section 9(a) proviso of the National Labor
Relations Act.[fn]1 29 U.S.C.A. 159(a)("NLRA").
The U.S. Supreme Court explained the meaning of the section
9(a) proviso in a lengthy footnote in Emporium Capwell, a case in
which a group of employees circumvented their bargaining agent
and were discharged for walking off the job. Emporium Capwell
Co. v. Western Addition Community Organization, 420 U.S. 50, 95
S.Ct. 977 (1975). The Court rejected the employees' claim that
their actions were protected by the 9(a) proviso.[fn]2 The
Court
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1 The proviso of section 9(a) of the National Labor Relations Act
states:
Provided, That any individual employee or a group of
employees shall have the right at any time to present
grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining
representative, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining
contract or agreement then in effect: Provided further, That
the bargaining representative has been given the opportunity
to be present at such adjustment.
2 In Emporium Capwell, the 9(a) question was settled by the
NLRB's conclusion that the employees were attempting to bargain with
the employer and were not just presenting a grievance. 420 U.S. at
61. The primary issue before the U.S. Supreme Court was the interplay
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noted that the proviso does not grant any right to an individual
grievant to meet with the employer. The proviso simply lays out
the conditions under which an employer may directly deal with an
employee about grievances, if the employer chooses to do so.
The intendment of the proviso is to permit employees to
present grievances and to authorize the employer to
entertain them without opening itself to liability for
dealing directly with employees in derogation of the
duty to bargain only with the exclusive bargaining
representative, a violation of 8(a)(5). (emphasis
added)
Emporium Capwell Co. v. Western Addition Community Organization,
420 U.S. at 61 n. 12, citing with approval Black-Clawson Co. v.
Machinists, 313 F.2d 179 (2nd Cir. 1962).
There is no question that if the employer chooses to meet
with an employee to adjust a grievance, the employer must give
the union the opportunity to attend that meeting. See Wedgwood
Nursing Home, 273 NLRB 1738 (1985)("The Board has frequently
invoked the proviso to require an employer to permit stewards to
participate in the grievance process."); Van Can Company, 304
NLRB 1085 (1991)(telephone conversation offering reinstatement
under certain conditions failed to satisfy 9(a) proviso); Top
Manufacturing Co., 249 NLRB 424 (1980) (directly communicating
settlement offer to employee without notifying the union failed
to meet 9(a) requirements); Union Carbide, 275 NLRB 197 (1985)
(use of ad hoc committees to solicit and resolve grievances
without inviting union failed to satisfy 9(a)). The requirement
that the union be allowed to attend such a meeting is recognition
of the union's interest in administering its collective
bargaining agreement and derives from the union's status as the
exclusive representative of the bargaining unit. U.S. Postal
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between the National Labor Relations Act and the protections against
discrimination contained in Title VII of the Civil Rights Act of 1964.
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Service, 123 LRRM 1209, 1210 (1986); Bethlehem Steel, 89 NLRB
341, 347 (1950). This is also clear from the requirement in 9(a)
that the adjustment not be inconsistent with the terms of the
existing collective bargaining agreement.
In the present case, as soon as a grievance was filed, the
School Committee notified the Federation of the grievance and
gave it the opportunity to be present at all grievance meetings
as required. The question presented is whether the meetings
leading up to Mr. Ridge's discharge, that is, prior to the filing
of the grievances, were to "adjust" his grievances within the
meaning of section 967(2). The employer argues that the meetings
were not for the adjustment of grievances but were investigatory
interviews and, as such, the Federation had no independent right
to be included. Investigatory interviews trigger an employee's
right to request union representation under Weingarten,[fn]3 the
employer argues, but do not implicate section 967(2). The Feder-
ation argues that the investigatory and disciplinary hearings are
covered by the section 967(2) proviso because the union's
presence is required to ensure the parties comply with the terms
of the agreement.[fn]4
The NLRB decisions on the 9(a) proviso emphasize the notion
of "adjusting" grievances -if there is no attempt to adjust,
there is no violation. For example, in Bethlehem Steel Co., 89
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3 NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959 (1975).
The MLRB first adopted the principles of Weingarten in 1979 in
Teamsters Local Union No. 48 v. University of Maine, Nos. 78-16 & -20,
slip op. at 12, (MLRB June 29, 1979). Monmouth School Bus Drivers &
Custodians/Maintenance Assoc. v. Monmouth School Committee, No. 91-09,
at 44 (MLRB Feb. 27, 1992) provides a full discussion of the
principles involved. Although we are not bound by the U.S. Supreme
Court's decision in Weingarten, we will refer to the comparable rights
under Maine law as "Weingarten rights" because of the widespread use
of that phrase.
4 The collective bargaining agreement provides that an employer
may discipline or discharge only for just cause.
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NLRB 341 (1950), the NLRB analyzed each of the interactions and
conversations that supervisors had with employees on various
issues to determine whether the interaction actually constituted
an "adjustment" or attempted adjustment. Bethlehem Steel Co., 89
NLRB 341 (1950). In U.S. Postal Service, 281 NLRB 1015 (1986),
the employer's failure to give the union the opportunity to be
present at the settlement of the employees' claims under Title
VII was unlawful because the employer was also attempting to
adjust concurrent contract grievances. In Wedgewood Nursing
Home, the NLRB faced a question of whether "Employee Council"
meetings fell within the 9(a) proviso. 273 NLRB 1738 (1985).
The NLRB found that because the union stewards attended these
meetings, it was unnecessary for it to determine if there had
actually been any "adjustment" of grievances. 273 NLRB at 1738.
In the present case, neither the employee nor the union
filed a grievance until after the evidentiary portion of the
dismissal hearing had concluded. There is no evidence that the
employer made any attempt to adjust anything resembling a
grievance during the dismissal hearing or the meetings leading up
to the hearing.[fn]5 We conclude, therefore, that the hearing
and meetings were not attempts to "adjust" Mr. Ridge's grievances
within the meaning of section 967(2).
The employer states that Weingarten governs this case, not
the section 967(2) proviso. We agree that the principles
announced by the U.S. Supreme Court in Weingarten and
consistently applied in unionized settings since that time are
inconsistent with the notion that the union has an independent
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5 The Federation argues that because the stated purpose of the
grievance procedure is to resolve disputes "as they arise," it is
entitled to attend all formal and informal meetings leading up to the
filing of the grievance. We reject this argument and the implication
that the meaning of section 967(2) depends on the wording of the
collective bargaining agreement.
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right to be present at investigatory interviews. Weingarten held
that, if an employee requests union representation at an
investigatory interview, such a request is protected concerted
activity and denial of that request is unlawful interference or
restraint of that protected activity.[fn]6 Once an employee
requests union representation, the employer must either grant the
request, give the employee the option of proceeding unrepresented
or waiving the interview, or reject the request and end the
interview. This Board has previously concluded that the same
rights addressed in Weingarten are protected by section 963 of
MPELRL. Monmouth Bus Drivers, 91-09 at 44.
The rights established in Weingarten derive from section 7
of the NLRA, which grants employees the right to engage in
concerted activity. The Supreme Court explained that a lone
employee may be too fearful or may not be articulate enough to
present his side of the story during an investigatory interview.
Weingarten, 420 U.S. at 263. The presence of a union represen-
tative would protect the employee from being overpowered and
outmaneuvered by the employer. Id. at 265 n. 10. The language
used in Weingarten makes it clear that the protected right is an
individual employee right, not a union right. See Id. at 256-257
("An employee's right to union representation upon request is
based on Section 7 of the Act . . . . [I]t is a serious
violation of the employee's individual right to engage in
concerted activity . . . if the employer denies the employee's
request . . . ."(emphasis added.))
If the employee does not request union representation, the
employer does not have to notify the employee of any Weingarten
rights. Moreover, since Weingarten rights are individual
employee rights rather than rights granted to the exclusive
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6 An investigatory interview is one that an employee reasonably
believes will result in discipline.
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representative, the employer does not have to notify the union of
the interview. The Supreme Court said as much when it quoted
with approval a prior NLRB statement that it was "'not giving the
Union any particular rights with respect to pre-disciplinary
discussions which it otherwise was not able to secure during
collective-bargaining negotiations.'" Weingarten, 420 U.S. at
259, quoting Mobil Oil Corp., 196 NLRB 1052 n. 3 (May 12, 1972).
Contrary to the Federation's assertion, Weingarten does not give
the union an independent right to be present at investigatory
interviews.
The NLRB touched upon this issue when it considered the
legality of an internal union rule that required the union
members to request union representation during investigatory
interviews. Sheet Metal Workers Intern'l Assoc. Local 550
(Dynamics Corp., Anemostat Products), 312 NLRB 229 (1993). The
NLRB concluded that the union's rule itself was not invalid
because it served a legitimate union purpose of allowing the
union to participate in investigatory interviews. The Board also
observed:
Nor does the Union's rule interfere with an employee's
right to refrain from engaging in union activities.
Members who choose to decline to be represented by the
Union at an investigatory interview are free to resign
their membership and thereby avoid application of the
rule.
312 NLRB at 229.
Maine's collective bargaining statutes, like the NLRA,
include a right to refrain from engaging in union activities.
See Churchill v. SAD No. 49 Teachers Ass'n, 380 A.2d 186, 192
(1977). It is difficult to reconcile this right not to
participate in union activities with the Federation's assertion
that the union has a statutory right to be present at
investigatory interviews.
On the basis of the foregoing, we conclude that the
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dismissal hearing and the meetings leading up to the hearing did
not involve the adjustment or attempted adjustment of grievances
that would trigger the requirement in section 967(2) of providing
the Federation the opportunity to attend. They were investiga-
tory meetings and Mr. Ridge had a right to union representation.
Mr. Ridge, however, did not request union representation at these
meetings and, in fact, he specifically denied the union's request
to attend. The Board majority concludes that the union had no
independent right to attend these meetings.[fn]7 Accordingly,
the employer was within its rights to prevent the union from
attending the meetings.
The duty to provide information relevant to grievances
The Federation argues that even if it did not have the right
to attend the dismissal hearing, the employer has a duty to
provide it with a transcript of the hearing so that the
Federation can process the grievances filed on Mr. Ridge's
dismissal. A copy of the transcript would enable the union to
evaluate the evidence against Mr. Ridge and prepare its argument
regarding the pending grievances.
The law is well-established that the duty to bargain
includes the duty to provide relevant information needed by the
union for the performance of its duties, including that pertinent
to grievances. Portland School Committee v. Portland Teachers
Assoc., No. 93-27 at 16 (MLRB Feb. 17, 1994); NLRB v. Acme
Industrial Co., 385 U.S. 432, 436 (1967). The standard of
relevance used by the NLRB is a broad discovery-type standard.
Acme Industrial, 385 U.S. at 437.
As this Board has previously recognized, the right to
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7 We therefore need not consider the impact of the provision of
the Freedom of Access Law authorizing executive sessions on employment
and discipline issues. 1 M.R.S.A. 405(6)(A).
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information is not absolute: "where there are competing
interests, the interests of both parties should be accommodated
if possible." Portland School Committee, No. 93-27 at 16-17.
For example, when an employer raises a "legitimate and
substantial claim of confidentiality" the NLRB employs a
balancing test weighing the union's interest in access to the
information against the employer's interest in maintaining
confidentiality. See, Portland School Committee, No. 93-27 at
17-18. See also, Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979)(employer had legitimate concern for secrecy of aptitude
test questions and regarding the release of actual test scores
received by named employees). The outcome of this balancing test
depends on the facts of each case. Detroit Edison Co., 440 U.S.
at 314.
The NLRB summarized its approach to confidentiality issues
when it rejected a broadcasting company's claim that the
confidential nature of personal service contracts warranted a
refusal to provide copies to the union. King Broadcasting Co.,
324 NLRB 332 (Sept. 9, 1997). The NLRB noted that the party
asserting confidentiality has the burden of proof and that while
there may be "legitimate and substantial claims of confidential-
ity," blanket claims of confidentiality will not be upheld. King
Broadcasting Co., 324 NLRB at 338. The Board also noted that
there are only a few categories of legitimate and substantial
confidential information. They are:
That which would reveal, contrary to promises
or reasonable expectations, highly personal
information, such as individual medical
records or psychological test results; that
which would reveal substantial proprietary
information, such as trade secrets; that
which could reasonably be expected to lead to
harassment or retaliation, such as the
identity of witnesses; and that which is
traditionally privileged, such as memoranda
prepared for pending lawsuits.
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King Broadcasting Co., 324 NLRB at 338, quoting Detroit Newspaper
Agency, 317 NLRB 1071, 1073 (1995).
Even if there is a legitimate and substantial confidential-
ity interest at stake, it is well established that the party
refusing to supply information has a duty to seek an
accommodation. King Broadcasting Co., 324 NLRB at 338. See
also, Pennsylvania Power Co., 301 NLRB 1104, 1105-06 (1991). The
NLRB recently described the necessary accommodation with:
An employer is not relieved of its obligation
to turn over relevant information simply by
invoking concerns about confidentiality, but
must offer to accommodate both its concerns
and its bargaining obligations, as is often
done by making an offer to release
information conditionally or by placing
restrictions on the use of that information.
Metropolitan Edison Co., 330 NLRB No. 21, 1 (Nov. 25, 1999),
quoting U.S. Testing Co. v. NLRB, 160 F.3d 14, 20-21 (D.C. Cir.
1998).
In the present case, the employer argues that Title 20-A,
section 6101 precludes it from releasing a copy of the transcript
to the Federation over the objections of the employee and exempts
it from any requirement to provide information under the
collective bargaining statutes. In essence, the argument is that
the statutory provision on school employee personnel records
creates a "legitimate and substantial" confidentiality interest
that justifies its refusal to provide the transcript to the
Federation. The employer further argues that the collective
bargaining agreement requires that employee consent be given
prior to release of the records to the union. We reject this
argument and find that the employer was obligated to produce the
transcript and the unredacted exhibits because they were relevant
to the Federation's performance of its collective bargaining
responsibilities.
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Title 20-A, section 6101 provides that certain parts of a
school employee's personnel record are open to public inspection
while other information is confidential. The legislative history
surrounding the adoption of the collective bargaining statutes
and Title 20-A, section 6101 itself does not support the
proposition that it was intended to modify any collective
bargaining rights. Section 6101 was simply intended to identify
those records exempt from disclosure under Maine's Freedom of
Access Laws.
The Municipal Public Employees Labor Relations Law was
enacted in 1969 and, with a few notable exceptions, closely
parallels the National Labor Relations Act. In 1969, the duty to
provide information to the union was clearly established under
the federal law.[fn]8 It is reasonable to conclude that the
Legislature intended to adopt the same principles governing the
duty to bargain that had been already established by the NLRB and
the federal courts interpreting the National Labor Relations Act.
In 1975, Maine's Freedom of Access Act was overhauled. P.L.
1975, ch. 758. For the first time, the statute gave the public
access to "public records," defined broadly to include nearly
everything in the public employer's possession except those
designated confidential by statute. See, 1 M.R.S.A. 402, sub-
3. In 1979, the Legislature enacted Title 20, sections 807 and
808, the predecessors to Title 20-A, sections 6101 and 6102.
P.L. 1979, c. 320; recodified in P.L. 1981, c. 693, 5. The
stated purpose of the legislation was to exempt certain school
personnel records from the Freedom of Access Law and permit
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8 The U.S. Supreme Court decided NLRB v. Truitt Manufacturing in
1956, holding that if the employer claims financial hardship at the
bargaining table, the duty to bargain includes a duty to turn over
financial data supporting that claim. 351 U.S. 149, 76 S.Ct. 753. In
1967, the Supreme Court upheld the NLRB's decision in Acme Industrial
holding that the duty to bargain included the duty to turn over
information relevant to processing grievances. 385 U.S. 432, 436.
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employees to examine their own files. L.D. 249, Statement of
Fact (109th Legis. 1979). It is clear from the legislative
history that the purpose was to prohibit public access to the
records; there is nothing to suggest an intent to alter the
union's right to information under the collective bargaining
statutes.
The employer contends that the absence of any reference to
collective bargaining in section 6101 is significant in light of
the language included in similar confidentiality provisions
covering county, municipal, and state employees (30-A M.R.S.A.
2702(1)(A)(3), 30-A M.R.S.A. 503(1)(A)(3), and 5 M.R.S.A.
7070(2), respectively). The language in these specific pro-
visions does not grant the union access to any particular infor-
mation, as the employer argues; it simply clarifies that the
statutory declaration of the confidentiality of information on
applicants for employment did not preclude union access to that
information.[fn]9
Section 2702(1)(A)(3) states:
(3) This paragraph does not preclude union
representatives from access to personnel records which
may be necessary for the bargaining agent to carry out
its collective bargaining responsibilities. Any
records available to union representatives which are
otherwise covered by this subsection shall remain
confidential and are not open to public inspection.
The final sentence of subparagraph 3 implicitly recognizes
that the union has a pre-existing right to personnel records:
____________________
9 Subsection 1 as a whole specifies which municipal records
pertaining to applicants and employees are confidential. Within
subsection 1, paragraph A identifies those records related to
applicants for employment that are confidential and paragraph B
identifies employee records that are confidential. Within paragraph
A, sub-paragraphs 1, 2, and 3 identify three exceptions to the
declaration in paragraph A. Subparagraph 3 simply ensures that
paragraph A (regarding applicants' records) is not interpreted to
preclude the union from accessing records it needs.
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"Any records available to union representatives which are
otherwise covered by this subsection [referring to subsection 1
which covers all municipal employee records] shall remain
confidential and are not open to public inspection." Subpara-
graph 3 does not grant any new rights to the union; it merely
recognizes pre-existing rights. Those rights pre-existed in the
case history on the duty to bargain, just as they existed prior
to the enactment of the statute declaring certain educational
personnel records confidential. Contrary to the employer's
assertion, the content and structure of the entire section 2702
supports the conclusion that the statute making personnel records
confidential does not limit the union's access to those records.
The fact that 20-A M.R.S.A. 6101 does not contain anything
comparable to subparagraph 3 is not significant. There was
simply no need to amend Title 20-A. The three other statutes
were amended in direct response to a Law Court decision holding
that applications and resumes received by the city were open to
the public.[fn]10 Bangor Publishing Co. v. City of Bangor, 544
A.2d 733 (Me. 1988). There was no need to amend the statute
covering school employee records because it clearly stated that
information relating to an applicant for employment was
confidential.
Our refusal to read into section 6101 a repeal of the
union's right to information is fully supported by decisions of
the Maine Law Court. The Court has repeatedly stated:
. . . when statutory language has acquired a consistent
and entrenched meaning through prior judicial
decisions, we will not abandon our traditional
interpretation of that language unless there is express
statutory language plainly showing a legislative intent
____________________
10 P.L. 1989, c. 403. See L.D. 1328 Statement of Fact (114th
Legis. 1989). The language contained in subparagraph 3 was added by
the Judiciary Committee and was included in all versions of the bill
that were debated by the full Legislature, but was never itself
subject to debate.
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to abrogate those prior decisions.
Tripp v. Philips Elmet Corp., 676 A.2d 927, 930-31 (Me. 1996),
citing Caron v. School Administrative District No. 27, 594 A.2d
560, 563 (Me. 1991)("In the absence of clear and explicit
statutory language showing that the legislature intended a
statute to modify case law, we will not interpret a statute to
effectuate such a modification.")
The Law Court concluded that other statutes making records
confidential prohibit the voluntary disclosure of records but do
not prohibit the release of records when otherwise required by
law. In Maine Sugar Indus., Inc. v. Maine Indus. Bldg. Auth.,
the Law Court held that the statute prohibiting the Industrial
Building Authority from disclosing records did not preclude
mandatory disclosure when required by a court or by a special
legislative committee charged with investigating the operation of
the authority. 264 A.2d 1 (Me. 1970). In Pooler v. Maine Coal
Products, the Law Court concluded that the statute making
unemployment commission records confidential only prevents
voluntary disclosure and does not preclude disclosure in a
judicial proceeding. 532 A.2d 1026, 1028 (Me. 1987). More
recently, the U.S. District Court for the District of Maine
relied on these two Law Court decisions in concluding that the
confidentiality statute covering personnel records of municipal
employees, 30-A M.R.S.A. 2702, "merely closes access to the
public at large" and "does not prohibit mandatory disclosure when
required by a court." Green v. Fulton, 157 F.R.D. 136, 140 (D.
Me. 1994) (holding personnel records of two municipal police
officers must be provided to plaintiff in a 1983 action alleging
excessive use of force). The District Court stated that any
concerns about confidentiality of the personnel records disclosed
in litigation could be addressed in a protective order. Id.
Access to information in personnel records is essential to
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the union's ability to enforce the collective bargaining agree-
ment. Interpreting section 6101 as the employer argues would
mean that the Legislature intended to significantly alter the
collective bargaining relationship by denying the union the
information necessary to process grievances to enforce the
agreement. The legislative history suggests that section 6101
was enacted simply to prevent the information from being made
public under the Freedom of Access Law. Providing information to
the union is not equivalent to making the information public.
Providing information to the union is not equivalent to making it
public because the public simply has no right to access
information in the union's possession. Additional concerns about
disclosure can be addressed by the parties as the employer and
the union are required to bargain toward an accommodation between
the union's need for the information and the employer's interest
in limiting its dissemination. As the NLRB recently observed:
The [NLRB's] cumulative experience has shown that
'there should be, and almost always is, a way that the
parties can effectively bargain' for an accommodation
that will satisfy both the union's needs and the
employer's protective concerns.
Metropolitan Edison, 330 NLRB No. 21, 3, quoting Exxon Co. USA,
321 NLRB 896, 899 (1996).
The employer also argues that the collective bargaining
agreement requires the employee's consent prior to the release of
any personnel record. The employer relies on Article 9, B.1
which states, "With approval of the teacher involved, the
Federation may have access to personnel files." Since we
conclude that the employer's statutory duty to bargain includes
the duty to provide the transcript to the Federation in this
case, we view the employer's reliance on this provision of the
collective bargaining agreement as equivalent to an argument that
the Federation has waived its statutory right to the material at
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issue by this provision of the agreement. We have often stated
that, to be effective, a waiver of a statutory right must be
clear and unmistakable. State v. Maine State Employees Assoc.,
499 A.2d 1228, 1232 (Me. 1985). We note that in addition to
Article 9, B.1 cited by the employer, the collective bargaining
agreement also contains two directly contrary provisions.[fn]11
Given these provisions, we conclude that the provision relied on
by the employer is not a clear and unmistakable waiver of the
Federation's statutory right.
We note that both Mr. Ridge and the Federation have filed
grievances related to Mr. Ridge's termination. Under the terms
of Article 5, G.1 of the collective bargaining agreement, once an
employee files a grievance unassisted by the Federation, the
employer is obligated to provide the Federation a copy of the
grievance and all relevant materials and notices. This provision
is directly related to the union's rights under section 967(2).
As a member of the collective bargaining unit, Mr. Ridge is
deemed to be aware of this provision. We accordingly find that
even if Article 9, B.1 granted individual employees the right to
control the release of personnel records, as the employer
suggests, Mr. Ridge waived that right by filing a grievance.
Section 967(2) would be meaningless if Mr. Ridge were allowed to
file a grievance and at the same time deny the Federation access
to information relevant to that grievance.
The NLRB does not consider an employee's failure to consent
to the release of information to the union to be a valid
justification for withholding information from the union.
____________________
11 Article 5, G.1 states, "In the event a teacher submits a
grievance without the assistance of the Federation, a copy of the
grievance and all relevant materials and notices shall be immediately
forwarded to the Federation by the Employer." Article 3, E states,
"The Committee agrees to make available to the Federation, in response
to requests, all available information allowable under the law."
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[T]he mere fact that an employee does not give formal
consent or might even object to the disclosure of such
does not in itself constitute grounds for refusing to
provide such information when it is relevant to the
bargaining representative's performance of its
representational duties.
Wayne Memorial Hospital, 322 NLRB 100, 103 (Sept. 5, 1996). The
NLRB went on to cite supporting language from the 8th Circuit
Court's decision in WCCO Radio v. NLRB, where the Court addressed
the employer's argument that some of its employees wanted the
information to remain confidential:
One of the consequences of collective bargaining is
that it subordinates the particular interests of
individual employees to the collective interest of the
unit. Hence, a preference for confidentiality on the
part of some WCCO employees does not nullify AFTRA's
right to the information. . . . It does, however,
underscore the need to guard against inappropriate
disclosure. AFTRA is aware of the confidentiality
concerns and has expressed willingness to accommodate
them by, for example, offering to limit the number of
people who would have access to the information. . . .
The Board thus has expressed faith in AFTRA's assur-
ances that the Union will handle the information in a
manner that adequately protects its confidentiality.
WCCO Radio v. NLRB, 844 F.2d 511, 515 (1988)(citations omitted).
In summary, we conclude that the employer did not commit a
prohibited practice by denying the Federation permission to
attend the dismissal hearing of Mr. Ridge. Once Mr. Ridge and
the Federation filed their grievances, the employer, however,
committed a prohibited practice by refusing to provide the
Federation with a copy of the transcript, the unredacted
exhibits, and any other information requested by the Federation
relevant to the grievances. The failure to provide the requested
relevant information was a violation the duty to bargain and a
prohibited practice under 26 M.R.S.A. 965(1)(E).
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ORDER
On the basis of the foregoing, 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 that the
employer cease and desist from refusing to provide the Federation
with a copy of the dismissal hearing transcript, unredacted
exhibits, and other relevant information requested by the
Federation regarding the pending grievances.
Dated at Augusta, Maine, this 31st day of January, 2002.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. 968(5)(F) (Supp.
2001) to seek a review of this
decision and order by the /s/___________________________
Superior Court. To initiate Jared S. des Rosiers
such a review, an appealing Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/___________________________
and order, and otherwise Karl Dornish, Jr.
comply with the requirements Employer Representative
of Rule 80(C) of the Rules of
Civil Procedure.
Employee Representative Robert Piccone filed a separate opinion,
concurring in part and dissenting in part.
I agree with the reasoning and conclusions of the majority
on all points except its conclusion that the union does not have
the right to attend an investigatory meeting over the objection
of the employee. I dissent from the majority opinion on this
point because I firmly believe that the union was entitled to
attend the investigatory meetings to fulfill its responsibilities
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as the collective bargaining agent. On this point, the
employee's right to speak for himself does not limit the union's
rights. As noted above, one of the consequences of being an
employee in a bargaining unit covered by a collective bargaining
agreement is that an individual's rights are subordinate to the
collective interests of the unit. At this point and on this
point the employee's wishes are not the issue; the issue is the
union's ability to fully perform its representational duties.
A critical part of that responsibility is to ensure that all
parties comply with the terms of the contract. In Weingarten,
the U.S. Supreme Court specifically recognized this role when it
described how the interests of the entire unit are served when an
employee requests representation:
The union representative whose participation he seeks
is . . . safeguarding not only the particular
employee's interest, but also the interests of the
entire bargaining unit by exercising vigilance to make
certain that the employer does not initiate or continue
a practice of imposing punishment unjustly.
Weingarten, 420 U.S. at 260-261.
Even though I agree with the Federation's position that they
were unlawfully denied the right to be present at the investiga-
tory meetings, I do not believe the proper remedy is to require
the meetings to be held again. The dismissal hearing was held
without the union being present at the employee's insistence and
no questions have arisen to the propriety of the hearing itself.
The dismissal hearing continued over the course of eight
evenings, lasted over 40 hours, and included examination and
cross-examination of 45 witnesses, some of them children. Giving
consideration to those facts and the availability of a transcript
of the entire proceeding, nullifying the decision would be
inappropriate. Providing the transcript and the unredacted
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exhibits to the Federation is the appropriate remedy in this
case.
/s/___________________________
Robert L. Piccone
Employee Representative
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