STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 77-27
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M.S.A.D. #44 ADMINISTRATORS ASSOCIATION, )
)
Complainant, )
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v. )
)
M.S.A.D. #44 BOARD OF DIRECTORS and ) DECISION AND ORDER
BRUCE LEET, District Negotiator, and )
KENNETH SMITH, School Superintendent, )
)
Respondents. )
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This case comes to the Maine Labor Relations Board by way of a Prohibited Prac-
tice Complaint dated November 11, 1976 and filed with the Board by Basil E. Kinney,
Chief Negotiator, M.S.A.D. #44 Administrators Association on November 23, 1976.
The Response to the Complaint was dated December 16, 1976 and filed with the Board
by Bruce M. Leet, Director of Labor Relations, Maine School Management Association,
on December 16, 1976. A Motion for a Default Judgment dated December 22, 1976 was
filed by J. Donald Belleville, Representative, Andover-Oxford UniServ District
on December 23, 1976.
A pre-hearing conference was held in this matter on Tuesday, January 4, 1977
at 1 p.m. in the Bureau of Labor Conference Room, Augusta, Maine, with Alternate
Chairman Donald W. Webber presiding. As a result of the pre-hearing conference,
a Pre-Hearing Conference Memorandum and Order was issued by Mr. Webber, the contents
of which are incorporated herein by reference.
A hearing was held on Tuesday, March 8, 1977 at 9:30 a.m. in the Portland Jet-
port Conference Room, Portland, Maine.
After filing of post-hearing briefs, the Maine Labor Relations Board, meeting
on May 10, 1977, proceeded to deliberate on this case, Chairman Walter E. Corey
presiding with Robert D. Curley, Employer Representative, and Michael Schoonjans,
Employee Representative.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations Board
in this matter and we conclude that this Board has jurisdiction to hear and render a
decision in this case as provided in 26 M.R.S.A. Section 968(5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the Pre-Hearing
Conference Memorandum and the pleadings, the Board finds:
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1) The M.S.A.D. #44 employees designated as principal, assistant
principal and elementary principal, at all time material herein,
formed an appropriate bargaining unit.
2) The M.S.A.D. #44 Administrator's Association, (hereinafter referred
to as the Association) at all times material herein, was the duly
recognized sole and exclusive bargaining agent for the above-
described bargaining unit.
3) Basil E. Kinney, at all times material herein, was the Association's
duly appointed chief negotiator and spokesman.
4) Darlene Hall, Gerald Schacter, Phillip Morales, Paul Bodwell,
John Gasser, Frances Gunther, Bettyann Hastings, Patricia Hudson -
chairperson, Michael O'Donnell, Charles Haegele, Margaret Wright,
Gilbert Dunham, Arnold Jordan, Harry Swan, Jr., - vice-chairperson,
Andrew Hinkley, Milton Mills, and Eva Twichell, at all times material
herein, were the duly elected members of the Board of Directors for
M.S.A.D. #44 (hereinafter referred to as the District).
5) Kenneth Smith, at all times material herein, was the duly appointed
Superintendent for M.S.A.D. #44.
6) Bruce Leet, at all times material herein, was the duly appointed
chief negotiator for M.S.A.D. #44.
7) At the time of the Complaint, the Association and the District were
in the process of negotiating a first contract for 1977-78.
8) On or about September 10, 1976 the Association sent the District a
ten-day notice to begin collective bargaining.
9) On or about September 23, 1976, in a meeting with members of the
bargaining unit, Superintendent Smith stated that the hiring of
Basil E. Kinney as a consultant for the Association would not
facilitate bargaining since Mr. Kinney had a bad relationship
with the Directors.
10) On or about the evening of September 23, 1976 a negotiations session
was held between the Association and the District and nothing pro-
ductive transpired.
11) On or about October 14, 1976 a second negotiating session was held
between the Association and the District during which Mr. Leet
expressed dismay at Mr. Kinney's presence.
12) On or about October 20, 1976 members of the bargaining unit were
called to a special meeting before Mr. Smith and Mr. Leet, to meet
and consult concerning the reorganization of the principals'
positions. Mr. Kinney, the representative of the Assocition for
purposes of bargaining collectively, was not present at the
October 20, 1976 meeting and was not afforded an opportunity to
be present.
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13) On or about November 4, 1976 a third negotiations session was held
between the Association and the District during which Mr. Leet
challenged the presence of the Association's consultants and
indicated that negotiations would not continue until Harlan Libby
was removed.
14) At the meeting of November 4, 1976, described in Paragraph #13
above, Mr. Leet, Mr. Smith and the District's negotiating team
refused to negotiate until Harlan Libby, a consultant for the
Association, was removed from the room. Upon a refusal by the
Association to remove Mr. Libby from the room, Mr. Leet, Mr. Smith
and the District's negotiating team left the negotiating session.
15) The only ground rule agreed to by the parties was that the bargaining
sessions be conducted in "executive session."
DECISION
The Association has charged that the District's conduct violated the Municipal
Public Employees Labor Relations Act in two respects. Count I alleged the conduct
of Mr. Smith at the meeting of September 23, 1976, Mr. Leet at the meetings of
October 14, 1976 and November 4, 1976, and both Mr. Leet and Mr. Smith on October 20,
1976, was an attempt by the District, a public employer, its representatives and
agents to dominate and interfere with the existence and administration of the
Association, an employee organization, in violation of 26 M.R.S.A. Section 964(1)(C).
The reaction to the hiring by the Association of Mr. Kinney, the former Superintendent
of MSAD #44, was one of "dismay" and the recognition that Mr. Kinney's former position
and relationship with the District may not "facilitate" negotiations. The District
continued to deal with Mr. Kinney as the chief negotiator for the Association as
evidenced by the sessions of October 14, 1976 and November 4, 1976. We conclude
that the evidence presented does not support a finding that the District violated
26 M.R.S.A. Section 964(1)(C) and therefore Count I should be and hereby is DISMISSED.
However, the scheduling of a meet and consult session with the employees in a bargaining
unit without affording the representative of the bargaining agent an opportunity
to be present is a technical violation of the obligation to bargain collectively
with the bargaining agent of its employees in violation of 26 M.R.S.A. Section
964(1)(E). The obligation to meet and consult contained in 26 M.R.S.A. Section
965(1)(C) is co-equal with the obligation to negotiate in good faith also contained
in that section and the procedural requirements contained in that paragraph, e.g.
meet at reasonable times and ten day notice, apply equally to the obligation to
meet and consult. Additionally, the provisions in 26 M.R.S.A. Section 964(1)(E)
require the public employer, its representatives and agents to bargain collectively
with the bargaining agent of its employees. A meeting for a meet and consult
session without the presence of the bargaining agent's representative violated
the duty to bargain contained in 26 M.R.S.A. Section 964(1)(E). In this case
Mr. Smith and Mr. Leet met with the administrators during the formative stages
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of an educational policy which, if implemented, would have affected the Association.
The District did not act on the proposals made by Mr. Smith until its November 1, 1976
meeting. Therefore, we conclude that the September 23, 1976 meeting with the admin-
istrators was a technical violation of 26 M.R.S.A. Section 964(1)(E).
Count II of the complaint alleges the conduct of Mr. Leet, Mr. Smith and the
District's negotiating team in leaving the negotiating session on November 4, 1976
constituted a refusal to bargain in good faith as required by 26 M.R.S.A. Section
965(1)(C) in violation of 26 M.R.S.A. Section 964(1)(E). At the beginning of the
session, Mr. Leet challenged the presence of three UniServ Directors from the
Maine Teachers Association, and Harlan Libby, a school board director from a
neighboring district and a classroom teacher in MSAD #44. The Association's
position was that the four people were present as consultants. The only ground
rule agreed to by the parties was that negotiating would be held in executive
session.
The District claims that the presence of Mr. Libby violated the ground rule
for executive sessions and would have required the employer to bargain with more
than one bargaining unit at a time. We do not agree. The Association had reason
to believe that it should be ready with consultants to face a broad range of topics
which could have been raised at the negotiating session. Absent a procedural agree-
ment concerning the number and qualifications of the negotiating team and consul-
tants, the policy of promoting labor relations through the negotiating process
should be encouraged and the parties should have proceeded with negotiations.
The stalling of the negotiations process pending a determination of a consultant's
qualifications, without a ground rule to make such a determination, is contrary
to the purpose of the Municipal Public Employees Labor Relations Act. We conclude
that the conduct of the chief negotiator which delayed the negotiations process by
demanding the removal of the consultant and by absenting himself and his fellow
negotiators from the negotiations session constituted a failure to bargain in
good faith as required by 26 M.R.S.A. Section 965(1)(C) in violation of 26 M.R.S.A.
Section 964(1)(E).
ORDER
On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
Section 968 of the Municipal Public Employees Labor Relations Act, it is ORDERED:
1) That the Maine School Administrative District #44 Board of
Directors, their representatives, servants and agents cease
and desist from engaging in any of the acts prohibited by
26 M.R.S.A. Section 964, Subsection 1, and especially from
refusing to bargain collectively with the bargaining agent
as required by Section 965.
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2) That the parties herein will forthwith commence negotiations
as required by 26 M.R.S.A. Section 965.
3) That within thirty (30) days from the date of this Order, the
Respondents, Maine School Administrative District #44 Board of
Directors, Bruce Leet and Kenneth Smith, shall notify, in writing,
the Maine Labor Relations Board at its office in Augusta, Maine,
of the steps they have taken to comply herewith.
Dated at Augusta, Maine, this 20th day of June, 1977.
MAINE LABOR RELATIONS BOARD
/s/_________________________________________
Walter E. Corey, Chairman
/s/_________________________________________
Robert D. Curley, Employer Representative
/s/_________________________________________
Michael Schoonjans, Employee Representative
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