The Massabesic Education Association/MEA/NEA ("Association")
filed a prohibited practice complaint on June 7, 2011, in which
it alleged that the RSU 57 Board of Directors ("Employer") failed
to bargain in good faith as required by 26 M.R.S.A. §965(1)(C)
thereby violating section §964(1(E) of the Municipal Public
Employee Labor Relations Act.  Specifically, the Association
charges that the Employer's conduct and statements violated the
parties' agreed-upon ground rule for negotiations regarding the
confidentiality of bargaining sessions.  The Association further
argues that this breach rises to the level of demonstrating a
"lack of intent" to bargain in good faith.  
      
      On July 21, 2011, the Maine Labor Relations Board's
Executive Director held a telephone conference call with the
Association's representative, Mr. Gregory Hannaford, and the
Employer's representative, Bruce Smith, Esq.  The parties agreed
that there were no relevant facts in dispute in this case and
that they would present their respective positions through
simultaneous written submissions.  The Association's brief
[end of page 1]
arguing the merits of the complaint and the Employer's brief
arguing for dismissal of the complaint were both received by
August 18, 2011.  The Association's brief included five exhibits. 
The Association filed a reply brief on September 1, 2011, while
the Employer chose not to file a reply brief.  The Board met to
deliberate this matter on Tuesday, September 13, 2011. 
                                             
              FACTS AS PRESENTED IN THE COMPLAINT
       
     1.   Complainant is the bargaining agent within the meaning
of 26 MRSA §962(2) for a unit of educational support personnel
employed by Respondent.
 
     2.   Complainant is the bargaining agent within the meaning
of 26 MRSA §962(2) for a unit of teachers employed by Respondent.
     
     3.   Respondent is a public employer within the meaning of
26 MRSA §962(7).
 
     4.   Complainant and Respondent are parties to a collective
bargaining agreement with the teacher bargaining unit, which
expired on 08/31/2011. (Complainant's Exhibit 1.)
 
     5.   Complainant requested that Respondent meet for
negotiation of a successor agreement to the collective bargaining
agreement.  On or about March 3, 2011, representatives of the
Complainant and Respondent met for such negotiations for the
teacher unit.
 
     6.   Negotiating representatives designated by the
Complainant included six (6) of its members, as well as Catherine
Geren, President, Massabesic EA/MEA/NEA, and Gregory C.
Hannaford, MEA UniServ Director.
 
[end of page 2]

     7.   Negotiating representatives for the respondent included
five (5) of its members, as well as Karla Bergeron, Chair,
MSAD/RSU 57 Board of Directors, and Frank Sherburne,
Superintendent, MSAD/RSU 57.
 
     8.   During the March 3, 2011, negotiating session the
representatives of both parties reached an agreement on ground
rules regulating how the negotiation process would be conducted
by the Complainant and the Respondent.  The agreement was reduced
to writing and signed by representatives of both parties.
(Complainant's Exhibit 2.)
 
     9.   On or about March 9, 2011, representatives of the 
Respondent engaged in a discussion of the Superintendent's Budget
Message for 2011-2012. (Complainant's Exhibit 3).  The budget
document contained specific references to issues in negotiation
between the parties.  The discussion by the Respondent took place
in an open session of a public meeting of the MSAD/RSU 57 Board
of Director's Finance Committee. 
 
     10.  On or about March 30, 2011, Superintendent Frank
Sherburne referred to a specific Complainant proposal, included
in Complainant's negotiation package, in an email addressed to
Catherine Geren, Association president, Terry Gould, Association
chief negotiator, Clint Nash, Association grievance
representative and negotiator, and Mark Peterson, building
administrator in MSAD/RSU 57, who is not a member of the
Respondent's negotiation team. (Complainant's Exhibit 4).
 
     11.  On or about April 6, 2011, representatives of the
Respondent again engaged in a discussion involving issues in
negotiation during an open session of a public meeting of the
MSAD/RSU 57 Board of Director's Finance Committee (Complainant
Exhibit 5).
     
[end of page 3]
 
                EXHIBITS WITH RELEVANT EXCERPTS
                                 
     C-1. Collective Bargaining Agreement between Massabesic
Education Association and Board of Directors of MSAD #57, 2007 -
2010 (no relevant excerpts).
 
     C-2. Ground Rules agreed upon on March 3, 2011.  Ground rule
number 7 states, in full:  "All meetings shall be held in closed
session and are strictly confidential."
 
     C-3. Superintendent's Budget Message for 2011-2012.  This
document is ten pages of very small print.  The first two pages
are the Superintendent's explanation of his budget proposal. 
Page three is text and a chart on "District Reserves (Fund
Balances)".  The fourth page describes the budget preparation
process and presents data on per pupil expenditures.  The fifth
through ninth pages cover estimated revenues and expenditures,
and data on enrollments, state valuations, tax assessments, and
essential programs and services calculations.  The last page sets
out the Budget Meeting schedule for March through June, 2011.
 
     The specific language that the Association contends is the
core of the alleged violation is contained in the textual portion
of the Superintendent's Budget Message.  The following are the
excerpts quoted in the Association's reply brief, with the
emphasis supplied by the Association.
     . . .
     We have asked our school administrators and staff to
     come together with clarity and commitment to improve
     the way we do business and position RSU 57 schools for
     future success. This was not easy, given our reduced
     revenues and greater responsibilities and expectations
     of staff. It required tough choices, including the
     elimination of 31.75 positions last year, and, in some
     cases, will require us to develop new ways to think
     about how we run our schools and our classrooms this
     year, so we continue to put student learning first.  

[end of page 4]

     I have been and continue to be confident that our staff
     would/will make the right choices to support all of our
     students and I am hopeful that our community will make
     the right choice at the polls, as well.

     To accomplish these goals, this budget depended on two
     critical factors:

     First, We needed all RSU 57 employees--many of whom
     have sacrificed raises and even endured pay cuts - to
     consider freezes this coming year in order to preserve
     all that we can for our students.  The goal is to
     maintain current-staffing ratios, as determined by our
     community forums and consideration of freezes will
     insure this can happen. . . 

     [Second,] we must be committed to sharing the sacrifice
     to preserve needed jobs. With this budget, we propose
     that employees consider, without exception, foregoing
     pay increases in order to maintain jobs in our schools.
     . .  We believed that all staff within the district
     understand the stark choices we face, and the trade-off
     of paying fewer employees more, or paying more
     employees. . .

     C-4. The Email message from the Superintendent to a building
administrator who was not a member of the Respondent's
negotiation team.  The email was about the use of leave time. 
The Superintendent's email noted that the practice had been that
leave time could not be taken in fragments of days, and that "the
Association has proposed to change that language from days to
hours, which suggests that the Association agrees with our
interpretation of the current language."
 
     C-5. 5-page document.  The first page is titled "2011-2012
Superintent's Recommended Budget, Agenda, Budget Workshop,
Wednesday, April 6, 2011".  The following 5 pages are headed
"Overview-Schools & Programs" and "Revenue and Expenditure
Revisions".  The Association does not specify which statements in
these documents are at issue. 

[end of page 5]               
                            DISCUSSION
           
     The Complainant alleges that the Employer's conduct violated
the established ground rule in a manner that demonstrates a lack
of intent to bargain in good faith as required by §965(1)(C),
which, in turn, constitutes a violation of §964(1)(E).  The
Association argues in its initial brief that the Employer's
actions "were tantamount to a rejection of the Ground Rules that
subsequently led to frustration and distrust on the part of the
Association's team and a general slowing of the negotiation
process and hindering the progress of said process."  The
Association further argues that the Employer's actions "were
deliberate, ongoing and arrogant in nature leading to the
creation of an adversarial nature to the negotiations resulting
in a deliberate delay in negotiations and which do rise to the
level of 'lack of intent' to bargain in good faith."
     
     The established standard for determining whether a party's
conduct is consistent with the duty to bargain in good faith
imposed by §965(1)(C) requires examining the totality of the
charged party's conduct.  The central question in this examin-

ation is whether the party's actions during negotiations indicate
"a present intention to find a basis for agreement."  Town of
Orono v. IAFF Local 3106, Orono Fire Fighters, No. 11-11 at 7-8
(Aug. 11, 2011), quoting NLRB v. Montgomery Ward & Co., 133 F.2d
676, 686 (9th Cir. 1943).  The Board has described this
assessment of the totality of the conduct as follows:
 
     Among the factors which we typically look to in making
     our determination are whether the charged party met and
     negotiated with the other party at reasonable times,
     observed the groundrules, offered counter-proposals,
     made compromises, accepted the other party's positions,
     put tentative agreements in writing, and participated
     in the dispute resolution procedures. See, e.g., Fox
     Island Teachers Association v. MSAD #8 Board of

[end of page 6]

     Directors, MLRB No. 81-28 (April 22, 1981); Sanford
     Highway Unit v. Town of Sanford, MLRB No. 79-50 (April
     5, 1979). When a party's conduct evinces a sincere
     desire to reach an agreement, the party has not
     bargained in bad faith in violation of 26 M.R.S.A. §
     964(1)(E) unless its conduct fails to meet the minimum
     statutory obligations or constitutes an outright
     refusal to bargain. 
 
Waterville Teachers Assoc. v. Waterville Board of Education, No.
82-11 at 4 (Feb. 4, 1982). 
      
     This Board recently addressed the question of whether an
admitted violation of a negotiating ground rule barring
communication with the press constitutes a violation of the duty
to bargain.  Town of Orono v. IAFF Local 3106, Orono Fire
Fighters, No. 11-11 (Aug. 11, 2011).  In that case, the parties
agreed that, other than the admitted disclosure to the press, the
respondent fully complied with the duty to bargain in all
respects.  The ground rule violation at issue was the union
president's email to the newspaper suggesting an article on the
state of negotiations and specifying the positions of the parties
on the three remaining issues that were scheduled for fact
finding.  The Board looked at the very specific terms of the
ground rule and the fact that the email was initiated and sent by
the union president with the clear intent to disrupt the
agreed-upon bargaining process and to use the press to bring
public pressure on the employer to alter its bargaining position. 
The Board concluded that the actions of the union's president
were a flagrant violation of the ground rule made with the intent
to substantially alter the nature of the bargaining process the
parties had agreed upon in violation of §965(1)(C).  The facts
and circumstances are quite different in the present case.
  
     It is essential to note that the case before us has a very
limited record.  The case has been submitted to the Board for

[end of page 7]

 resolution on the sole basis of the documents in evidence and
briefs.  We are restricted to addressing the complaint on the
evidence before us which mostly consists of three documents:
     1.   The Superintendent's written Budget Message presented
          and discussed in a public meeting on March 6, 2011; 
     2.   An email discussing a grievance and the Association's
          negotiating position on that issue; 
     3.   An agenda and budget material including revenue and
          expenditure revisions distributed and discussed at a
          public 'Budget Workshop' on April 6, 2011.
   
     The Complainant does not specify the offensive statements
that were made in these meetings, but simply relies on the
documents themselves to prove its case.  Furthermore, there was
no evidence presented to the Board as to the issues actually
discussed in the negotiation sessions, therefore it is impossible
to determine whether the statements made in the public meetings
actually disclosed information that was provided during a
negotiation session.  Finally, the ground rule that is alleged to
have been violated is very short and not particularly clear as to
its intent.  Despite these handicaps, we are being asked to
determine on the basis of the limited record before us whether
the conduct in fact violated the ground rule and, if so, whether
that conduct constituted a failure to bargain in good faith.  We
will also address the coerciveness of the Employer's conduct,
even though it was not specifically alleged in the complaint, as
both parties raised the issue in their briefs.
  
     We will first address the statements made by the
Superintendent in his written Budget Message.  The essence of the
Superintendent's statements is that if the employees were not
committed to "sharing the sacrifice" by "foregoing pay
increases," layoffs will occur.  The Superintendent said, "I have

[end of page 8]

been and continue to be confident that our staff would/will make
the right choices . . .[and] We believe that all staff . . .
understand . . . the tradeoff of paying fewer employees more, or
paying more employees."  The Complainant argues that this written
Budget Message, which was discussed in a public meeting,
contained "specific references to issues in negotiation" and
therefore was a breach of the ground rule. 
  
     The negotiating ground rule that the Employer allegedly
violated is not entirely clear as to its scope or its duration,
as it simply states, "All meetings shall be held in closed
session and are strictly confidential."  No evidence was
presented that would shed light on any mutual understanding of
the parties with respect to the meaning of this ground rule.  The
rule might be interpreted to mean that negotiating sessions are
only open to bargaining team members and that anything disclosed
during a meeting is confidential.  It is unclear whether
bargaining team members can discuss confidential matters among
themselves outside of a negotiating session.  It is also unclear
when it would be permissible to seek further input from the union
membership or full school board.  A more restrictive reading of
the ground rule is that anything related to negotiation is
confidential and must not be mentioned outside of a closed
session.  The latter interpretation is not tenable because it
would be inconsistent with the statutory requirements of the
budgeting process in Maine's public schools.  
 
     Maine's statutes governing the public school budgeting
process require the school superintendent to "thoroughly explain
the budget" at the annual budget meeting.  20-A M.R.S.A. §1482-B,

[end of page 9]

sub-§3.   For the Employer to fully comply with this statutory
directive, the superintendent must disclose the assumptions upon
which the budget is developed.  In his Budget Message, the MSAD
#57 Superintendent did so when he explained that the budget was
based on flat funding for employee salaries.  Although he went
further than necessary when he stated that he considered salary
freezes for everyone to be the desired outcome of negotiations,
that is not the same as saying that the Employer breached the
ground rule by disclosing information obtained during negotiation
sessions.  Since we have no evidence before us as to the content
of any closed negotiating sessions, we are unable to determine
whether there was a disclosure of confidential information. 
There is simply no evidence in the record upon which we could
find such a breach.  Thus, we are unable to conclude that the
statements made in the Superintendent's Budget Message breached
the ground rule as the Complainant argues.
 
     The second instance of an alleged violation of the ground
rule is the Superintendent's email regarding a grievance on the
use of leave time.  In this email, the Superintendent made
reference to the Association's negotiating position as part of
his defense of his view of the established practice on this
issue.  Even though the ground rule is unclear in many respects,
it unquestionably prohibits the disclosure of a negotiating
position to someone who is not a member of either bargaining
team.  We have never held, however, that a mere breach of a
ground rule is a per se violation of the duty to bargain in good
faith.  See Orono v. IAFF Local 3106, No. 11-11 at 8 (a per se
____________________
 [fn] 1. Title 20-A, section §1482-B. Annual budget meeting procedures 
The following procedures must be used at a regional school unit annual
budget meeting. . .
   (sub-§)3. Budget consideration.  The superintendent of the regional
school unit shall thoroughly explain the budget.  The voters must have
an opportunity to be heard.
     
[end of page 10]

violation occurs when a party fails to meet the minimum statutory
requirements or commits an outright refusal to bargain).  Unlike
the egregious conduct in Orono, the disclosure in this case was
limited.  While this is a technical breach of the ground rule, it
is not sufficient to constitute a violation of the law by itself. 
  
     The third and final allegation of a breach of the ground
rule concerns statements made by the Employer's representatives
during the April 6, 2011, meeting of the Board of Director's
Finance Committee.  The only evidence before us is the
uncontested statement that "representatives of the Respondent
again engaged in a discussion involving issues in negotiation
during an open session of a public meeting."  The Complainant's
Exhibit C-5 is a document including the agenda for that meeting,
along with 5 pages of charts and data related to the budget.  The
Complainant does not indicate what portion of this exhibit
supports the allegation of a breach of the ground rule, and we
are unable to identify any part that is objectionable on its
face.  
 
     We conclude that the Complainant has failed to provide
evidence sufficient to demonstrate that the Employer has breached
the negotiating ground rule on confidentiality to such an extent
as to constitute a failure to bargain in good faith.  We find
only a minor violation of the ground rule with the email
disclosure; claims that other statements were disclosures that
violated the ground rule are speculative, at best.
      
     The briefs of both parties raise the issue of whether the
Employer's statements were coercive.  The Association asserts in
its reply brief that the statements were coercive and potentially
a violation of §964(1)(A), which prohibits conduct "interfering
with, restraining or coercing employees in the exercise of the

[end of page 11]

rights guaranteed in section 963."  Section 963 includes both
organizational activities and collective bargaining.  The
Association noted that this Board has stated that the analysis to
use in determining whether a statement violates §964(1)(A) is to
consider "'whether under these circumstances the employees could
reasonably conclude that the employer was threatening them with
economic reprisals' if they persisted in their organizational
activities." Kittery Employees Assoc. v. Eric Strahl, Town of
Kittery, No. 86-16 (Aug. 6, 1986) at 11, quoting NLRB v. Saunders
Leasing System, Inc., 497 F.2d 453, 457 (8th Cir. 1974).  The
Association argues that the Employer's statements "clearly and
repeatedly imply that any non-acceptance of their position on
salary freezes will result in employee layoffs by reminding the
employees of recent layoffs and tying any refusal to agree to a
salary freeze to additional layoffs."
     
     Although we consider the Superintendent's choice of words to
be ill advised, we are reluctant to find a violation of
§964(1)(A) on the basis of the coercive nature of the statements
in the Budget Message because to do so would come too close to
equating a negative economic impact with "economic reprisal." 
The moment a shrinking budget starts to affect wages, hours, or
working conditions, it will have a negative economic impact on
the employees, but that does not mean that it is necessarily
"economic reprisal."  In the present case, it appears from a
consideration of the totality of the Superintendent's Budget
Message that the shaky economy and the shrinking state budget led
to the Superintendent's flat budget proposal, not any intent to
threaten employees with economic reprisals for being in the union
or taking a particular stance at the table.  There is no evidence
in the record that the Superintendent's statement was anything
but a reference to choosing the lesser of two evils.  Whether a
wage freeze or a layoff is the lesser evil is a perennial

[end of page 12]

question on which reasonable minds differ.  The question of which
is preferable or whether other alternatives are possible are
questions that should be addressed at the bargaining table.
 
     With respect to the "coerciveness" of an employer's
statements during bargaining in an established union setting
(rather than during a union organizing campaign), this Board has
issued two decisions that are instructive.  In the Oxford Hills
case, the Board found a §964(1)(A) violation based on the
Superintendent's statement to the union president outside of the 
bargaining session that they would "reclaim" retroactive payments
already made if the union did not sign the contract that week. 
Oxford Hills Teachers Assoc. v. MSAD #17, No. 88-13 at 43 (June
16, 1989).  The Board specifically noted in that case that the
issues that were delaying final settlement should be addressed at
the bargaining table.  In the more recent MSAD #46 case, the
Board rejected the Union's argument that the Employer's
bargaining stance opposing retroactivity was on its face an
interference, restraint or coercion violation.  MSAD #46
Education Assoc. v. MSAD #46 Board of Directors, No. 02-09, at 9
(July 3, 2002).  In that situation, the union used the same
"economic reprisal" argument noted above to argue that the
employer's bargaining stance was coercive.  After considerable
discussion, the Board held that hard bargaining is not, by
itself, coercive or interference with the employees' right to
bargain collectively.  Id. at 8.  The present case is
distinguishable from Oxford Hills because here the Employer is
not threatening a more severe cut or retaliation for the
Association taking a particular bargaining position.  The
Superintendent's statements as to what he considered to be the
only two viable options in the circumstances provide an
explanation of his budgeting choices and was not coercive in
violation of 964(1)(A).  

[end of page 13]

      Despite our ultimate finding in this matter, the most
troubling aspect of this case is our sense that the Superinten-
dent's wording comes perilously close to language that could be
read as interference with the employees' collective bargaining
rights.  Our concern in this regard starts with the observation
made above that the Superintendent's Budget Message went beyond
simply explaining the budget and the assumptions underlying its
development.  The Superintendent's statements about the "right
choices" that the employees should make and that everyone "must
be committed to sharing the sacrifice to preserve needed jobs"
are disturbing.  The Association argues that these comments were
intended to bypass their bargaining team and "to bring pressure
on that team" to accept the salary freeze.  
       
     The Association asserts that the Superintendent's statement
was "making a bargaining proposal directly to both employees and
to the public" in violation of the ground rule, and by extension,
was a violation of 964(1)(E), as it was bypassing the bargaining
agent and dealing directly or indirectly with employees.  A
direct-dealing violation occurs when the employer makes a
proposal directly or indirectly to the employees or solicits
input from the employees on a mandatory subject of bargaining. 
See, e.g., Teamsters v. Jay School Dept., No. 06-22 at 8 (Nov.
21, 2006) and MSEA v. Dept. of Public Safety, No. 09-10 at 16
(July 9, 2010).  Here, the Employer was not making a proposal to
employees that had not already been made to the Association.  The
evidence indicates that the Employer and the Association began
negotiations several days before the Superintendent presented his
budget and there is no suggestion that the Superintendent's
message presented a new proposal.  
       
     Similarly, we do not consider the Superintendent's comments
to be direct dealing because they do not seek a response from the

[end of page 14]

employees, nor do they suggest that the employees would be better
off dealing directly with the employer.  See, e.g., Teamsters v.
Jay School Dept., No. 06-22 at 8 (Nov. 21, 2006)(informing
employees of an opportunity to request a transfer was not direct
dealing because the memo did not make a proposal or seek a
response from the employees), and Teamsters v. Aroostook County,
No. 92-28 at 24 (Nov. 5, 1992)(questionnaires asking employees to
choose among alternatives for scheduling furlough days was direct
dealing because it was seeking employee input on negotiable
issues).  Here, the Superintendent's comments did not seek a
direct response from the employees, but, rather, implicitly
suggest that the employees should try to persuade the Association
to alter its bargaining position.
     
      That portion of the Budget Message that goes beyond an
explanation of the budget is language that appears to be aimed at
convincing the employees and the citizens of the district to try
to influence the Association's bargaining team to change its
position.  While we do not find a violation in this case, we do
not condone such statements because, as we have noted in a
previous case, it "is a type of meddling which makes it more
difficult for the Union to compromise at the bargaining table and
is likely to harden resistance and foment antagonism."  Teachers
Assoc. of MSAD 49 v. Board of Directors of MSAD 49, No. 80-49 at
7 (November 18, 1980).  Clearly, the expression of employer
opinion and informational statements, if accurate and non-
coercive, are both constitutionally protected free speech. MSEA
v. Maine, No. 82-01 (April 5, 1982); Associated Faculties of the
Univ. of Maine v. Assoc. of Independent Professionals, No. 81-22
(Aug. 19, 1981); Kittery Employees Assoc. v. Strahl, No. 86-16. 
But meddling in the employees' right to freely participate in
collective bargaining, if continued, will at some point be
transformed into interference with those rights, in violation of

[end of page 15]

§964(1)(A).  Although we do not find a violation in this case, we
caution the Employer that there are times when sticking to the
facts and arguments supporting your position is more productive
than attempting to tell others what the "right choices" are.
     
     In summary, we conclude that the conduct complained of does
not constitute a failure to bargain in good faith as required by
26 M.R.S.A. §965(1)(C), nor does it constitute interference,
restraint or coercion of employees in the exercise of the rights
granted to them by 26 M.R.S.A. §963.                        
                 
                             ORDER
  
     On the basis of the foregoing findings of facts 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, it is hereby ORDERED that the Complaint be DISMISSED.



Dated at Augusta, Maine, this 10th day of November, 2011.