Caribou Teachers Assn. v. Caribou Teachers Assoc., No 77-34. Board decision set aside by Superior Court C-78-56. Law Court affirmed in part and modified in part Board decision 402 A.2d 1279. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 77-34 [Issued: Feb. 1, 1978] _______________________________ ) CARIBOU TEACHERS ASSOCIATION, ) ) Complainant ) ) v. ) DECISION AND ORDER ) CARIBOU SCHOOL DEPARTMENT, ) ) Respondent ) _______________________________) This case comes to the Maine Labor Relations Board by way of a pro- hibited practice complaint dated April 6, 1977, and filed by Roger Kelley, Northern Maine UniServ Director and representative for Caribou Teachers Association on April 11, 1977. The Response to the aforesaid complaint was dated May 2, 1977 and filed by Richard F. Crocker, Jr., Superintendent, Caribou School Department, on May 4, 1977. A pre-hearing conference was held in this matter at Augusta, Maine, on May 31, 1977, at 3:00 p.m. with Alternate Chairman Donald W. Webber presiding. As a result of the pre- hearing conference, a Pre-Hearing Conference Memorandum and Order was issued on June 6, 1977, the contents of which are incorporated here by reference. A hearing was held in this matter on Tuesday, August 2, 1977, Chair- man Walter E. Corey presiding, with Michael Schoonjans, Employee Representa- tive, and Robert D. Curley, Employer Representative. At the conclusion of the hearing on August 2, 1977, a schedule for the submission of briefs was established and legal memoranda were filed by the parties by September 19, 1977. The Maine Labor Relations Board meeting on Tuesday, October 27, 1977, examined the transcript of the hearing of August 2, 1977, as well as the pleadings and legal memoranda and determined that an additional hearing would be necessary. As a result of that determination an additional hearing was held on Tuesday, November 29, 1977, in the Bureau of Labor Conference Room, Augusta, Maine. The Maine Labor Relations Board meeting on Tuesday, December 13, 1977 proceeded to deliberate on this matter. JURISDICTION The parties have not challenged the jurisdiction of the Maine Labor Relations Board, and we conclude that the Board has jurisdiction to hear and render a decision in this matter pursuant to 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the testimony given at the hearings as well as the pleadings and the Pre-Hearing Conference Memorandum and Order, we find: [-1-] ____________________________________________________________________________ 1. The Caribou Teachers Association (hereinafter referred to as the Association) is the bargaining agent for the group of full-time certificated personnel in the Caribou School District as defined by 26 M.R.S.A. 962. 2. The Caribou School Department (hereinafter referred to as the Department) is the duly authorized Board for the School district and is a public employer as defined by 26 M.R.S.A. 962. 3. There was a collective bargaining unit executed between the parties to this complaint on February 18, 1977. 4. On January 6, 1976 the parties held their initial negoti- ations session for a successor agreement and reached agree- ment on "ground rules" which read in part: "Once the packages of items for negotiations are exchanged, no other item may be submitted unless mutually agreed." 5. After the ground rules were signed, the parties exchanged their respective items for bargaining. The Department's proposal contained the following statement: "All articles in the current contract, except as proposed, shall remain in effect, except for Articles IV A and XXVI which shall be deleted from the contract." 6. Neither party proposed changes to Section A of Article XXIX, Duration of Agreement, specifically relating to the effect- ive month of the agreement and the expiration month of the agreement in their original proposal. 7. On March 16, 1976, the Department filed a request for medi- ation in accordance with Rules and Procedures of the Maine Labor Relations Board and said request did not list Article XXIX as an issue in dispute. Subsequently mediation was held on April 7, 1976 with no discussion being initiated by either party concerning Article XXIX. The Department did make reference to Article XXIX in an ex parte conference with the mediator but no proposal was given by the Department to the mediator with respect to Article XXIX and no reference was made by the mediator to that Article in ex parte confer- ences with the Association. 8. On March 11, 1976, the Association requested fact finding in accordance with the Rules and Procedures of the Maine Labor Relations Board and Article XXIX, Duration of Agreement, was not listed as a remaining issue in dispute. On June 4, 1976 the fact finding panel heard evidence on all listed issues in controversy between the parties, and subsequently on June 29, 1976 issued its report of which Duration of Agreement was not a listed issue. 9. On August 9, 1976, the parties met for the first time since the fact finding report was issued for the purpose of collective bargaining. After proposals from both parties were exchanged, no agreement was reached, at which time the Department attempted to introduce an item for bargaining, i.e., effect- ive date of agreement - retroactivity. The Association declined to negotiate with respect to the subject asserting a lack of mutual agreement as to its introduction under the ground rules. -2- ____________________________________________________________________________ 10. On October 6, 1976 the parties participated in interest ar- bitration unilaterally requested by the Association and at the outset of the arbitration hearing agreed on the out- standing issues of which Duration of Agreement - Article XXIX - was not included. 11. During the October 6 interest arbitration, the Department sought to introduce an item, i.e., Duration of Agreement, and after objection by the Association, the arbitration panel requested post-hearing materials on whether the issue was properly before the arbitrators. 12. The arbitration award, dated December 31, 1976, made no ref- erence to Article XXIX or to the effective date of the agreement, and contained the following statement: "Note: Any proposal, not specifically referred to in the above awards, is hereby denied." 13. Subsequent to the interest arbitration award, the parties entered into intense negotiations on subjects which in- cluded salaries and insurance. The Association maintained that the agreement was effective August 1, 1976, and the Department maintained the agreement was effective December 31, 1976. 14. The Department did not seek a review of the interest arbi- tration award as available in accordance with 26 M.R.S.A. 972. 15. With the dispute concerning the effective date of the agree- ment unsettled, the parties signed "Articles for Ratification" on February 18, 1977 with the following caveat: "With regards to the effective date of this contract, execution of this agreement does not prejudice the Association from seeking a deter- mination relative to retroactivity." 16. On February 17, 1977, Robert Roy and Gary Johnston signed a document entitled "Memorandum of Agreement" which was used to assist in reaching a contract. 17. The duration of collective bargaining agreements between the Association and the Department, based on past practice, has been a one-year agreement effective from August 1 to July 31. DECISION We believe ground rules have a beneficial effect in promoting meaning- ful collective bargaining and encourage parties to enter into and abide by their negotiated ground rules. See Van Buren Education Association v. M.S.A.D. #24 Board of Directors, MLRB Case No. 76-08 and John Glover et al v. M.S.A.D. #64 Board of Directors et al, MLRB Case No. 77-07. The parties in this case negotiated ground rules limiting the subjects to be bargained to those items exchanged in the negotiation packages, unless both parties agreed to open negotiations to additional subjects. The initial package of subjects introduced by the Department did not include a proposal to -3- ____________________________________________________________________________ change the effective date of the new agreement (Article XXIX, Section A). The Department did propose that all items not listed in their original proposal remain the same as the current collective bargaining agreement and, based on past practices, the effective date of all collective bargain- ing agreements was August 1. The Department did not attempt to change the effective date of the agreement until after fact finding, when a proposal was offered and the Association declined to negotiate with respect to the subject asserting a lack of mutual agreement as to its introduction under the ground rules. A party does not negotiate in good faith if it introduces an item for negotiations in violation of the negotiated ground rules, unless the other party waives its right to object. The introduction of the new subject by the Department on August 9, 1976 covering the effective date of the agreement violated the ground rules, and, therefore, violates Section 964(1)(E) of the Municipal Public Employees Labor Relations Act unless the Association waived its right to object. The evidence introduced at the hearings indicated two possible times when a waiver occurred. The first was in the executing of the contract on February 18, 1977, and the second was in the execution of the "Memorandum of Agreement" signed by Mr. Johnston and Mr. Roy. The contract language quoted in paragraph #15 of the Findings of Fact clearly reserves to the Association the right to a determination of the effective date of the contract without waiving the right by executing the agreement, and we conclude that the execution of the collective bargaining agreement did not waive the Association's right to object under the ground rule. The "Memorandum of Agreement" signed by the chief negotiator for the Association on February 17, 1977, stated that: "No retroactivity. Increment and incresse to be paid effective date of arbitration award (Dec. 31, 1976)... The negotiator, without changing the Board's position, offers the aforesaid terms." After the above-quoted section appeared the statement "signed and agreed to by" and was followed by the signature of the chief negotiator for the Association. The testimony of Mr. Roy, the Association's chief negotiator, demonstrated that the purpose of the agreement was to allow the Department to negotiate salary without the Department's waiving its right to raise the issue of the 120-day notice at a subsequent time. Mr. Johnston, the Department's chief negotiator, testified that the "Memorandum of Agreement" was signed as an informal document, and was signed by Mr. Johnston not in his capacity as a representative of the Department. If we credit the testimony of the Department, the document "Memorandum of Agreement" is a nullity and, therefore, not a waiver. If we credit the testimony of the -4- ____________________________________________________________________________ Association, the document "Memorandum of Agreement" has no relationship to the issue of waiving the objection to a ground rule violation. A waiver, to be effective must be clear and unmistakable. We conclude that the Association did not waive its right to object to the introduc- tion of the subject of effective date of the agreement and, therefore, the Department violated 26 M.R.S.A. 964(1)(E). To remedy the violation, it is appropriate to require that the Department not benefit from its violation and to order the contract effective on the date had the viola- tion not occurred. 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 968 of the Municipal Public Employees Labor Relations Act, it is ORDERED: 1. That the Caribou School Department, their repre- sentatives, servants and agents cease and desist from engaging in any of the acts prohibited by 26 M.R.S.A. 964(1) and especially from refusing to bargain in good faith as required by 26 M.R.S.A. 965. 2. That the Caribou School Department give retroactive effect to the contract executed on February 18, 1977 to August 1, 1976 end pay any additional wages and benefits due therefrom with legal interest. 3. That within 30 days from the date of this Order, the Caribou School Department 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 1st day of February 1978. MAINE LABOR RELATIONS BOARD /s/________________________________________ Walter E. Corey, Chairman /s/________________________________________ Robert D. Curley, Employer Representative /s/________________________________________ Michael Schoonjans, Employee Representative -5- _____________________________________________________________________________________