STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case #77-33
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)
COUNCIL #74, AMERICAN )
FEDERATION OF STATE, COUNTY )
AND MUNICIPAL EMPLOYEES, AFL-CIO )
)
Complainant )
v. ) DECISION AND ORDER
)
CITY OF AUGUSTA, Augusta, )
Maine, and Paul Poulin, in )
his capacity as City Manager, )
City of Augusta, Maine, )
)
Respondent )
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This case comes to the Maine Labor Relations Board by way of a prohibited
practice complaint dated March 24, 1977, and filed by Don P. Wrenn, Field
Representative, Council #74, American Federation of State, County and Municipal
Employees, AFL-CIO, March 25, 1977. The response to the aforesaid complaint
was dated April 11, 1977, and filed by Charles E. Moreshead, Attorney for the
respondents, on April 12, 1977. A pre-hearng conference was held in this matter
on Friday, April 22, 1977, at 9:30 a.m. in the Bureau of Labor Conference Room,
Augusta, Maine, with Alternate Chairman Donald W. Webber presiding. As a result
of the pre-hearirig conference, a Pre-hearing Conference Memorandum and Order
was issued by Mr. Webber on April 26, 1977, the contents of which are incorporated
herein by reference, and which further provided that the matter would be submitted
to the Board on briefs. After receiving briefs from the parties, the Maine Labor
Relations Board, meeting on July 29, 1977, proceeded to deliberate on this case,
Alternate Chairman Donald W. Webber presiding with Michael Schoonjans, Employee
Representative and Robert D. Curley, Employer 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 pre-hearing conference and the pleadings, the Board finds:
1. That Council #74, American Federation of State, County and Municipal Em-
ployees, AFL-CIO, is a certified bargaining agent, as defined by 26 M.R.S.A. Section
962(2) with an address of 2 Stone Street, Cony Circle, Augusta, Maine 04330, and
its Representative Don P. Wrenn.
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2. The City of Augusta, Maine is a public employer as defined by 26
M.R.S.A. Section 962(7) with Paul Poulin, City Manager, and an address of
City Hall, Augusta, Maine.
3. The collective bargaining agreement between the parties commenced
on the 1st day of January, 1976, and by its terms terminated on the 31st day
of December, 1976.
4. The complainant gave timely notice of its intent to bargain over a
matter requiring an appropriation of money by a municipality pursuant to 26
M.R.S.A. Section 965.
5. On or about the 24th day of February, 1977, the complainant submitted
to the City of Augusta certain proposals for a future contract concerning wages,
hours, working conditions and contract grievance arbitration.
6. On or about the 2nd day of March, 1977, the Kennebec Journal through
its reporter, Mr. Paul Betit, requested of Paul Poulin a copy of the complainant's
proposals.
7. On December 10, 1976, Mr. Charles Moreshead, Attorney for the City of
Augusta, wrote to a representative of the Union informing him that the City of
Augusta would release the Union's proposal to the Kennebec Journal.
8. On March 17, 1977, Mr. Moreshead wrote a letter to counsel for the Ameri-
can Federation of State, County and Municipal Employees. In that letter, Mr.
Moreshead reiterated his position that he would immediately turn over AFSCME's
proposals to the Kennebec Journal.
DECISION
The complainant has charged the City of Augusta with a failure to barqain
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) by threatening to release contract proposals made by the Union
during negotiations. The City of Augusta contends that the Maine Right-to-Know
Law (1 M.R.S.A. Section 401 et seq.) requires the City (a public employer) to release
to the press copies of contract proposals made during negotiations.
The Maine Right-to-Know- Law contains in relevant part as follows:
Section 408. Public Records available for public inspection.
Except as otherwise provided by statute, every person shall have the
right to inspect and copy any public record during the regular busi-
ness hours of the custodian or location of such record. . . .
Section 402 - Definition
3. Public Records. The term "public records" shall mean any written
printed or graphic matter or any mechanical or electronic data compila-
tion from which information can be obtained, directly or after trans-
lation into a form susceptible of visual or aural comprehension, that
is in the possession or custody of an agency or public official of this
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State or any of its political subdivisions and has been received
or prepared for use in connection with the transaction of public
or governmental business or contains information relating to the
transaction of public or governmental business, except:. . .
D. Material prepared for and used specifically and exclusively
in preparation for negotiations, including the development of
bargaining proposals to be made and the analysis of proposals re-
ceived, by a public employer in collective bargaining with its
employees and their designated representatives.
We find that union proposals in the possession of the public employeer are
within the legislatively intended exclusion from the Right-to-Know Law as "mater-
ial prepared for and used specifically and exclusively in preparation for nego-
tiations including . . . the analysis of proposals received." Therefore, the
City's reliance on the Maine Right-to-Know Law as necessitating the release of
the union's proposals is not justified.
We must then examine the propriety of releasing contract proposals under the
Municipal Public Employees Labor Relations Act, Section 965(1)(C) of the Act re-
quires the public employer and the bargaining agent "to confer and negotiate in
good faith with respect to wages, hours, working conditions and contract grievance
arbitration . . . ."
In Quamphegan Teachers Association v. School Administrative District No. 35,
MLRB Case No. 73-05 (1973) at page 5, we held that Sections 961 and 963 of the
Municipal Public Employees Labor Relations Act "means and intends to expedite the
collective bargaining process as set forth in the Act. Furthermore, because of the
specific prohibited acts set forth in the Act, specifically in Section 964, thereof,
we find that the purposes of the Act are to promote labor peace for these employees
and their respective employers in the State of Maine." We also noted in Quamphegan
that negotiations should take place in executive session, unless public sessions
are mutually agreed upon. The nature of the bargaining process requires a free
give and take with frank discussion "beyond the eyes and ears of both the public
and the press"(Quamphegan supra, page 5) to avoid turmoil and unnecessary delay.
To create an atmosphere which is most conducive to meaningful collective bargain-
ing, we conclude that the public release of bargaining proposals by either party
during the bargaining process and prior to a final agreement, if made without the
consent of the other party, disrupts the bargaining process and constitutes a vio-
lation of the obligation to negotiate in good faith as required by 26 M.R.S.A.
Section 965. In the present case, the respondent did not, to the knowledge of the
Board, release the proposals, but indicated that they were going to release them.
The position to release the proposals, considering the unsettled law in this area,
is not, by itself sufficient to find a violation of the obligation to negotiate in
good faith. Consequently, since the proposals were not released, and we do not
otherwise find a lack of good faith in bargaining, the complaint should be dis-
missed.
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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 complaint of Council #74, American Federation
of State, County and Municipal Employees, AFL-CIO, dated
March 24, 1977, and filed with the Maine Labor Relations
Board on March 25, 1977, should be and hereby is
DISMISSED.
Dated at Augusta, Maine, this 9th day of August, 1977.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Donald W. Webber, Alternate Chairman
/s/________________________________________
Robert D. Curley, Employer Representative
/s/________________________________________
Michael Schoonjans, Employee Representative
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