STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-33
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SANFORD SCHOOL COMMITTEE, )
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Complainant, )
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v. )
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SANFORD SCHOOL CUSTODIAN )
UNIT - MAINE TEACHERS ) DECISION AND ORDER
ASSOCIATION )
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and )
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SHIRLEY E. RANDALL, )
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Respondents. )
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This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed May 1, 1978 by Thomas E. Humphrey,
Esquire, attorney for the Sanford School Committee. A response to the com-
plaint was filed April 25, 1978, prior to the date upon which the Board
received the complaint, by Shirley E. Randall, UniServ Director for the
Sanford School Custodian Unit - Maine Teachers Association.
A pre-hearing conference on the matter was held in Augusta, Maine on
June 27, 1978 by Alternate Chairman Donald W. Webber. As a result of this
Pre-hearing conference, Alternate Chairman Webber issued on June 29, 1978 a
Pre-Hearing Conference Memorandum and Order, the contents of which are incor-
porated herein bv reference.
On August 8, 1978 the Board conducted a hearing on the case in Portland,
Maine, Chairman Edward H. Keith presiding, with Paul D. Emery, Employer Repre-
sentative, and Michael Schoonjans, Employee Representative. At the conclusion
of the hearing, a briefing schedule was established. Final briefs were
received by September 22, 1978, and the Board proceeded to deliberate over
the case at a conference held in Augusta, Maine on October 27, 1978.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this matter, and we conclude that the Board has juris-
diction to hear and render a decision in this case as provided in 26 M.R.S.A.
968(5).
FINDINGS OF FACT
Upon review of the testimony and exhibits introduced at the August 8,
1978 hearing as well as the pleadings and the Pre-Hearing Conference Memoran-
dum and Order, the Board finds that:
1. Complainant Sanford School Committee ("School Committee")
a duly authorized body acting on behalf of the Town of
Sanford, Maine, is a public employer within the meaning of
26 M.R.S.A. 962(7).
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2. Respondent Sanford School Custodian Unit - Maine Teachers
Association ("Custodian Unit") was at all times material
herein the exclusive bargaining agent as defined in 26 M.R.S.A.
962(2) for the custodians employed in the Town of Sanford
school system.
3. Respondent Shirley E. Randall was at all times material herein
a duly authorized negotiator for the Sanford School Custodian
Unit - Maine Teachers Association.
4. By a request for fact finding dated January 3, 1978, Respondents
requested that the Executive Director of the Board assign a fact
finding panel to consider unresolved issues in negotiations
between the School Committee and the Custodian Unit. The fact-
finding hearing was held February 24, 1978 in Sanford, Maine.
5. During the course of the fact-finding hearing, Respondent
Shirley E. Randall agreed to submit to the members of the fact-
finding Panel copies of a certain arbitration decision and
copies of the current collective bargaining agreements covering
municipal employees in Sanford, Maine.
6. Copies of the arbitration award and the current collective bar-
gaining agreements were not submitted to the fact finders. In a
letter dated March 23, 1978 to the negotiators for the School
Committee and the Custodian Unit, the Chairman of the fact-finding
panel stated that a reasonable post-hearing period of time for
further submission of documents had expired, and that the hearing
accordingly was terminated and the record closed as of March 6,
1978.
7. In a letter dated March 27, 1978 to the Chairman of the fact-finding
panel, Respondent Shirley E. Randall apologized for failing to sub-
mit copies of the documents, citing a heavy workload and pleading
excusable neglect.
DECISION
Complainant has charged that Respondents violated 26 M.R.S.A. 964(2)(B)
by failing to submit to the members of the fact-finding panel certain docu-
ments which Respondents agreed to provide during the February 24, 1978 fact-
finding hearing. Complainant contends, among other things, that the failure
to submit the documents constitutes a failure to participate In good faith in
fact-finding procedures as required by 26 M.R.S.A. 965(1)(E). Respondents
argue that Complainant has not shown that it was harmed by the lack of the
requested information, and that the record does not show that Respondents
deliberately failed to submit the information in an attempt to frustrate the
fact-finding process. After carefully considering the record, applicable
legal precedent, and pertinent policy considerations, we are of the opinion,
for the reasons stated below, that Respondents' failure to submit the docu-
ments to the fact finders constitutes a violation of 26 M.R.S.A. 5 964(2)(B).
We consequently will order an appropriate remedy.
It is important, to preserve and enhance the effectiveness of the fact-
finding process, that the parties to a fact-finding proceeding diligently
satisfy their commitments to supply information or to perform any other
agreed-upon action designed to aid the fact finders in their determinations
cf., Arundel Teachers Ass'n v. David Majercik, M.L.R.B. Case No. 73-08 (1973).
Once a party to a fact-finding proceeding has agreed to undertake such an
action, it is incumbent upon the party to meet its commitment. If unexpected
difficulties are encountered in the effort to satisfy the commitment, the
party should notify the fact finders of these difficulties.
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Requiring any less of a duty on the part of the parties to a fact-finding
proceeding could undermine the usefulness of fact finding. It is critical
that fact finders be provided with as complete a factual record as possible
upon which to base their findings and recommendations. Any commitment by a
party to supply information which might be pertinent to the fact finders in
the performance of their duties must be strictly observed if the fact finders
are to make meaningful recommendations.
Here it is undisputed that Respondents, having agreed to supply copies of
certain documents to the fact finders, failed to follow through on their
agreement. While we agree fully with Respondents' contention that inadver-
tence rather than an intent to frustrate the fact-finding process caused the
failure to provide the copies, we find that Respondents' neglect or oversight
regarding submission of the documents constitutes a failure to participate in
good faith in the fact-finding procedure as required by 26 M.R.S.A. 965(1)
(E), in violation of 26 M.R.S.A. 964(2)(B). Having agreed during the fact-
finding hearing to supply copies of the documents to the fact finders,
Respondents were obligated to make a good faith attempt to satisfy their
commitment.
Having found a violation of 26 M.R.S.A. 964(2)(B), we will order
Respondents to cease and desist from engaging in any of the acts prohibited
in Section 964(2). We do not believe that an award or costs against
Respondents, as requested by Complainant in its prayer for relief, is
warranted in this case for two reasons.
First, as previously indicated, the record contains no evidence that
Respondents deliberately failed to supply the copies in an attempt to
frustrate the fact-finding process. Second, Complainant was not substantially
harmed or prejudiced by Respondents' failure to provide the documents. The
arbitration decision which Respondents agreed to furnish was cited by
Respondents during the fact-finding hearing as precedent supporting
Respondents' position regarding probationary periods. Since the fact finders
did not recommend Respondents' position on probationary periods, Respondents
failed at their own peril to provide copies of the arbitration decision. Any
delay in the issuance of the fact-finders' report which may have been
occasioned by Respondents' failure to submit the documents was at best slight,
and there is no evidence that Complainant suffered any harm due to a delay in
the release of the report.
Were the record to establish that Respondents deliberately attempted to
frustrate the fact-finding process or that Complainant was substantially
harmed or prejudiced by Respondents' failure to submit copies of the docu-
ments, then we might well award the costs of the fact-finding hearing to
Complainant, see, e.g.. Sanford Teachers Ass'n v. Sanford School Committee,
M.L.R.B. Case No. 77-36 (1977). In the absence of such showings, however, an
award of costs against Respondents for the fact-finding hearing is not
justified.
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 Section
968 of the Municipal Public Employees Labor Relations Act, it is hereby
ORDERED:
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That the Sanford School Custodian Unit - Maine Teachers
Association and Shirley E. Randall, and their respresenta-
tives and agents, cease and desist from engaging in any
of the acts prohibited by 26 M.R.S.A. 964(2), and es-
pecially from refusing to bargain collectively with the
public employer as required by 26 M.R.S.A. 965.
Dated at Augusta, Maine this 14th day of November, 1978.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Paul D. Emery
Employer Representative
/s/____________________________________ Michael Schoonjans
Employee Representative
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