STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-13 Issued: November 27, 2002 ________________________________ ) MSAD #46 EDUCATION ASSOCIATION/ ) MEA/NEA, ) ) Complainant, ) INTERIM DECISION AND ) ORDER ON APPEAL OF v. ) EXECUTIVE DIRECTOR'S ) PARTIAL DISMISSAL OF MSAD #46 BOARD OF DIRECTORS, ) COMPLAINT ) Respondent. ) ________________________________) The MSAD #46 Education Association ("Association") filed this prohibited practice complaint with the Maine Labor Relations Board ("Board") on March 13, 2002. The Association alleges that the MSAD #46 Board of Directors ("Employer") violated the Municipal Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. 979-C(1)(A), (B) and (E), by opposing full retro- activity of proposed wage increases and by making various statements during the parties' contract negotiations. The Association is represented by Joseph A. Stupak, Jr., and the Employer is represented by S. Campbell Badger, Esq. In disposing of a related prohibited practice case between the same parties (case No. 02-09), the Board permitted the Association to amend the current complaint, which it did on July 18, 2002. The Employer filed a response and a motion to dismiss the amended complaint on August 14, 2002. In response to a letter from the Executive Director identifying insufficiencies in the complaint, the Association filed a second amended complaint on September 16, 2002. On October 9, 2002, the Executive Director notified the complainant that portions of the complaint were not sufficient and would therefore be dismissed. On October 24, 2002, the Association filed with the Board a [-1-] ___________________________________________________________________________ motion for review of Executive Director's partial dismissal of the complaint. In accordance with Board Rule Chapter 12, 8(3), the Board has "examined the complaint as it existed when summarily dismissed in light of the assertions contained in the motion." The Board hereby affirms the Executive Director's dismissal of the regressive bargaining charge and the discrimination charge but reinstates the charge alleging interference, restraint or coercion in violation of section 964(1)(A). DISCUSSION The Act authorizes the Executive Director to dismiss a pro- hibited practice complaint if the facts as alleged "do not, as a matter of law, constitute a violation." 26 M.R.S.A. 968(5)(B). The applicable standard used in ruling on sufficiency is the same as ruling on a motion to dismiss for failure to state a claim upon which relief may be granted. In both cases, the Executive Director (and the Board) must treat the material allegations of the complaint as true and must consider the complaint in the light most favorable to the complainant to determine whether it alleges facts sufficient to state a claim for relief. See, e.g., Buzzell, Wasson and MSEA v. State of Maine, No. 96-14 (MLRB Sept. 22, 1997), citing Brown v. MSEA, 690 A.2d 956, 958 (Me. 1997). When the allegations in the complaint are more than simply factual allegations but are legal conclusions, however, we are not bound to accept those legal conclusions as true. See, Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994). At the heart of this case is the Employer's bargaining position that it would not agree to retroactivity of its wage proposal for any period greater than six weeks prior to the ratification of an agreement. The Association alleges that this bargaining position constitutes regressive bargaining and is a -2- ___________________________________________________________________________ failure to negotiate in good faith.[fn]1 The thrust of the Association's argument was presented in its memo on this appeal: A proposal by an employer that reduces the length of time over which wage increases will be effective reduces the value and benefit of the proposed wage increase as surely as would a proposal to reduce the amount of the increase. Proposals, like those made persistently by the Respondent, that wage increases should be effective only at later and later dates, are inherently regressive. The Association is correct in stating that the issue of retroactivity is a mandatory subject of bargaining. Auburn Firefighters Assoc. v. Morrison, No. 83-10, at 8 (March 9, 1983). The Association's argument must fail for precisely this reason. By arguing that failure to agree to full retroactivity of wage increases is inherently regressive and therefore a failure to bargain in good faith, the Association is essentially saying that full retroactivity is required. If it is a mandatory subject of bargaining, it must be subject to bargaining. One cannot call retroactivity a mandatory subject of bargaining and simultaneous- ly argue that anything but full retroactivity constitutes a failure to bargain in good faith. The Association's position has the effect of removing retroactivity from the bargaining table entirely. We do not agree that the Employer's position on retroactivity is regressive. We agree with the Association that the purpose of the complaint is to provide fair notice of the claim. Even if all ____________________ 1 We note that the factual allegations in the complaint show that the Employer's position on the retroactivity issue did not move in a regressive manner. Paragraph 21 of the complaint alleges the Respondent's position in its fact finding brief (sometime after Oct. 30, 2001) was no retroactivity. Paragraphs 26, 31, 35 and 36 of the complaint allege that the Respondent's position was no retroactivity beyond six weeks prior to the ratification of the collective bargaining agreement. The Association's argument is clearly not centered on the movement of the Respondent's position, but the allegedly "regressive" nature of the position itself. -3- ___________________________________________________________________________ the facts alleged in the complaint are true, however, there must be a viable claim for which relief can be granted. See, e.g., Diva's, Inc. v. City of Bangor, 176 F.Supp.2d 30, 33 (D. Me. 2001) (Court does not accept plaintiff's unsupported inter- pretations of law), Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (Must allege facts necessary for recovery "under some actionable legal theory"). The Executive Director is not auto- matically precluded from dismissing a claim on grounds of insufficiency just because the legal theory of the claim is "novel." If a novel claim is dismissed, our rules provide for a review of such an action by the full Board, as in the present case.[fn]2 The bottom line of the matter is that if the legal claim is not itself viable, there is no point in going to hearing because no set of facts will support that claim. As we stated above, even if the allegation regarding the Employer's bargaining position opposing full retroactivity were true, it is not regressive bargaining and therefore is not, in itself, a violation of the duty to bargain in good faith. We agree with the Executive Director's decision dismissing that portion of the complaint alleging that the employer engaged in regressive bargaining, thereby violating its duty to bargain in good faith. We note, however, that the portion of the complaint alleging a failure to bargain in good faith was not dismissed and will proceed to hearing. The Association is free to introduce evidence of the employer's bargaining positions on all subjects, including retroactivity, to support its case on that count. The Association also appeals the Executive Director's dismissal of the 964(1)(B) claim. Section 964(1)(B) prohibits employers from "encouraging or discouraging membership in any ____________________ 2 The Executive Director's decision to dismiss does not bind us in any way, just as an Executive Director's decision that a claim is sufficient does not affect our decision on a motion to dismiss prior to hearing. -4- ___________________________________________________________________________ employee organization by discrimination in regard to hire or tenure of employment or any term or condition of employment." The Executive Director noted that the complaint does not contain any factual allegation of disparate treatment of or discrimin- ation against employees on the basis of their union activities. The Association argues to the Board that the disparate treatment or retaliation occurred by withholding wage increases from all of the bargaining unit employees. The problem with this is that the employer is not permitted to grant wage increases during collective bargaining. See, Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 1982), Board of Trustees of University of Maine v. Associated COLT Staff and MLRB, 659 A.2d 842, 844 (Me. 1995). The employer is required to maintain the status quo until the parties have reached an agreement or are at a bona fide impasse. Mountain Valley Educ. Ass'n v. MSAD No. 43 and MLRB, 655 A.2d 348, 352 (Me. 1995). Making a unilateral change in wages would be a violation of the duty to bargain with the union. Id. In this case, the Employer was not withholding anything because the parties had not come to an agreement yet. The Association attempts to dress the Employer's position on retroactivity as a discrimination claim. The Association argues on appeal that: . . . the Respondent's rejection of this settlement overture,[fn]3 and its continued withholding of wage increases that were otherwise agreed to by the Association, demonstrates that the withholding of wage increases is not the product of a good faith bargaining conflict, but an act of discrimination for which the Respondent is solely responsible. ____________________ 3 The Association's appeal memo goes beyond the allegations contained in the complaint by stating that the Association was willing to agree to the Employer's proposals if the Employer would provide full retroactivity. -5- ___________________________________________________________________________ Calling it discrimination does not make it so. These factual allegations may support a claim that the Employer did not bargain in good faith, but they do not present a viable claim of discrimination under 964(1)(B). Finally, the Association appeals the Executive Director's dismissal of that portion of the complaint that alleges that certain comments made to members of the Association's bargaining team violated section 964(1)(A). Section 964(1)(A) prohibits an employer from "interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 963." The complaint itself cited the factual allegations contained in paragraphs 18 and 19 as the basis for the alleged (1)(A) violation. The Executive Director looked at those two paragraphs and reasoned that they were of the same genre as the comments addressed in the related case No. 02-09 and were not sufficient to state a claim of unlawful interference, restraint or coercion. On appeal the Association argues that the Employer's statement that the union should accept the Employer's position "for the same reason he gave his children -because I said so" is more than merely disparaging but is "antithetical" to the purposes of the Act. We do not agree that, if proven, this comment alone would constitute a (1)(A) violation. Given the totality of the conduct alleged to have occurred in this case, however, we cannot dismiss the possibility that the Association could present evidence to support its contention that the Employer's continual use of put-downs and demeaning, sarcastic remarks directed at the bargaining team could constitute a (1)(A) violation. It is conceivable that an employer's treatment of the bargaining agent could be of such a nature as to constitute interference with the employees' right to engage in the collective bargaining process, irrespective of whether the employer has also violated its duty to bargain in good faith. -6- ___________________________________________________________________________ As we noted in case No. 02-09, we had previously held in Jefferson Teachers Association that arrogant and unhelpful comments during negotiations were not an independent section 964(1)(A) violation. No. 02-09 at 10, citing Jefferson Teachers Assoc. v. Jefferson School Committee, No. 96-24, at 27 (Aug. 25, 1997). In that same case, we also said: . . . We hesitate to qualify or quantify acceptable commentary at the bargaining table; in some cases, depending on the circumstances, it may cross the threshold . . . . Id., at 27. We will not dismiss this interference claim at this stage because the Association may be able to prove that the Employer has, in fact, crossed the threshold. ORDER On the basis of the foregoing assumptions of fact and discussion and pursuant to the provisions of 26 M.R.S.A. 968(5)(B), it is hereby ORDERED: 1. That the portion of the complaint alleging a violation of 26 M.R.S.A. 964(1)(B) is dismissed. 2. That the portion of the complaint alleging that the Employer has engaged in regressive bargaining thereby violating 26 M.R.S.A. 964(1)(E) is dismissed. 3. That the portions of the complaint alleging a failure to bargain in good faith in violation of 26 M.R.S.A. 964(1)(E) and (1)(A) should proceed to hearing. 4. That the portions of the complaint alleging the Employer's statements and treatment of the bargaining agent interfere with, restrain and coerce employees in the exercise of their rights in violation of 26 M.R.S.A. 964(1)(A) should proceed to hearing. -7- ___________________________________________________________________________ 5. The Executive Director shall, in the normal course of business, schedule a prehearing conference and evidentiary hearing on the merits of the Association's complaint. Dated at Augusta, Maine, this 27th day of November, 2002. MAINE LABOR RELATIONS BOARD /s/______________________________ Peter T. Dawson Chair /s/______________________________ Karl Dornish, Jr. Employer Representative /s/______________________________ Wayne W. Whitney Alternate Employee Representative -8- ______________________________________________________________________________