STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-15
________________________________
)
RUMFORD SCHOOL DEPARTMENT, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
RUMFORD TEACHERS ASSOCIATION, )
)
Respondent. )
________________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed pursuant to 26 M.R.S.A. 968(5)(B) on
September 6, 1978 by the Rumford, Maine, School Department ("School Depart-
ment").
Because of the allegations contained in the complaint, the Board convened
an expedited hearing on the case on September 7, 1978. At the conclusion of
the expedited proceeding, the Board decided to continue the hearing of the
case so that the case could be processed in accordance with the Board's normal
procedures for hearing and deciding a prohibited practice complaint case.
On October 4, 1978, the Board issued an Order directing that the case be
continued on a non-expedited basis.
The School Department filed an amended prohibited practice complaint on
October 5, 1978. The Rumford Teachers Association's ("Teacher Association")
reply to the amended complaint was filed October 18, 1978.
A pre-hearing conference on the case was held December 5, 1978, Alternate
Chairman Donald W. Webber presiding. As a result of this pre-hearing
conference, Alternate Chairman Webber issued on December 18, 1978 a Pre-
Hearing Conference Memorandum and Order, the contents of which are incor-
porated herein by reference.
A hearing on the case was held February 5, 1979, Alternate Chairman
Webber presiding, with Employer Representative Paul D. Emery and Alternate
Employee Representative Paul Haney. Briefs arguing the issues raised by the
case were all filed by May 15, 1979, and the Board proceeded to deliberate
over the case at a conference held June 20, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Rela-
tions Board in this matter, and we conclude that the Board has jurisdiction
to hear the case and render a decision and order as provided in 26 M.R.S.A.
968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Complainant Rumford School Department is a public employer as
defined by 26 M.R.S.A. 962(7) and within the meaning of
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26 M.R.S.A. 968(5)(8). Respondent Rumford Teachers Associa-
tion is the bargaining agent as defined in 26 M.R.S.A. 962(2)
for certain full-time Teachers , Department Heads, Guidance Coun-
selors, Assistant Principals, Librarians and Nurses employed by
the Rumford School DeDartment, and is a Public employee organiza-
tion within the meaning of 26 M.R.S.A. 968(5)(B).
2. On or about August 15, 1978, a letter dated August 15, 1978 by
Kenneth Nye, the Principal of Rumford High School, was mailed to
the home addresses of the High School teachers and support staff
who were members of the bargaining unit represented by the Teachers
Association. This letter states, among other things, that coffee
and doughnuts would be available for teachers at 8:30 a.m. on
September 5, 1978, to be followed by a staff meeting at 9:00 a.m.
in the High School library.
3. By memorandum dated August 25, 1978 and directed to all Rumford
school personnel, Howard Dunn, Rumford's Superintendent of Schools,
stated that each principal would be meeting with members of their
staff in their individual buildings at 8:30 a.m. on September 5,
1978. The memorandum also states that classes would commence at
8:05 a.m. on September 6, 1978 at all schools, and that a regular
school day would be followed. This memorandum was either mailed
to the home addresses of the school personnel or picked up at the
schools by the employees. The record does not show that any School
Department employee was unaware that he/she was to be present at
their building by 8:30 a.m. on September 5, 1978, or that classes
would commence at 8:05 a.m. on September 6, 1978.
4. On August 31, 1978, a collective bargaining agreement between the
School Department and the Teachers Association expired. Among the
provisions contained in the agreement was Article XIV, which pro-
hibited strikes, lockouts, walkouts, slowdowns or similar interrup-
tions of the school system by the parties. Article XV of the agree-
ment provided for a grievance procedure by which employees could
grieve problems affecting the terms and conditions of the agreement.
The parties were negotiating for a successor agreement when the
agreement expired on August 31st.
5. At approximately 7:45 a.m. on September 5, 1978, a teacher requested
permission to use the cafeteria at Rumford Hiqh School for a meeting
from 8:00 a.m. to 8:30 a.m. Permission was granted. The meeting
was still in session at 8:30 a.m., and only three teachers appeared
for the coffee and doughnut session in the High School library. Nye
consequently informed Dunn by telephone that the teachers were meet-
ing in the cafeteria and were not appearing in the library. Dunn
instructed Nye to "sit tight" and let the teachers finish their
business.
6. At approximately 9:00 a.m. Nye went to the cafeteria and reminded
Armand Michaud, the President of the Teachers Association, that the
teachers and support staff were scheduled to attend staff meetinqs
at 9:00 a.m. Michaud stated the teachers were involved in something
very important, and that he guessed the meeting would be over at
approximately 10:00 a.m.
7. The teachers meeting was concluded at approximately 11:10 a.m., and
the High School teachers and support staff reported to the
library. The meeting in the library was adjourned for lunch at
11:30 a.m. The staff meeting was held from 12:30 p.m. to approxi-
mately 3:00 p.m. Some of the teachers and support staff failed to
attend their staff meetings.
8. Michaud appeared at Dunn's office shortly before noon on
September 5th to tender a statement which the teachers and support
staff had voted to release to the press. The statement, which was
signed by Michaud, provides that:
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The Rumford teachers wish to advise the parents,
administrators, and school committee that we will
not be meeting with pupils on Wednesday, September
6, 1978 because the teachers will be discussing the
status of contract negotiations. For the third
straight year, Rumford teachers will be starting the
school year without a contract. The teachers are
anxious to resolve difficulties so that the school
year can proceed.
The substance of the statement appeared the following day in news
reports. Dunn asked Michaud whether he knew that the proposed
action was against the law. Michaud agreed that it was, but
stated that the teachers were adamant that this was what was to
be done.
9. Approximately 90 of the 110 teachers and support staff employed by
the School Department did not report for work at 8:05 a.m. on
September 6, 1978. Three of the ninety had been excused from re-
porting on September 6th by the School Department. Approximately
650 of the 850 students at the High School appeared for classes
on September 6th. The High School was kept open by using three
teachers who reported to work, nine substitute teachers, six parent
volunteers, two teacher aides, and three administrators to supervise
the students.
10. The teachers and support staff returned to work at the scheduled
times on September 7, 1978, and a regular school day followed.
No interruptions in the 1978-79 school year subsequent to September
7, 1978 are alleged by School Department.
11. The School Department docked the salaries for time missed from work
of those teachers and support staff who failed to attend the staff
meetings on September 5th and who failed to appear for classes on
September 6th. "Make-up" sessions to recover the time lost from the
school year were held Friday evening, November 17, 1978, and Satur-
day, November 18, 1978. The teachers and support staff who worked at
these sessions were paid for the time worked.
12. As a result of the teachers' and support staff's failure to report
for classes on September 6, 1978, the School Department incurred
various expenses totalling $984.33. These expenses would not have
been incurred had the teachers and support staff reported for work
on September 6th as scheduled.
13. On September 18, 1978 the School Department and Teachers Association
executed for the teachers and support staff a new collective bargain-
ing agreement, the term of which extended retroactively to September
1, 1978. Part of this agreement provides:
"The School Committee or its members will take no reprisals
against the Association or any teachers who did not work
on September 5 and 6, 1978. This will not prejudice prac-
tice complaint 79-15."
14. Donald Belleville, the Teachers Association's negotiator, testified
that the meaning of the above-quoted agreement is that the School
Department would not take such actions as prohibiting the Teachers
Association from using school facilities, favoring non-Teachers
Association members, discharging teachers who failed to report for
work, placing references of the failure to work in the teachers'
personal files or otherwise prejudicing the teachers, etc.
Belleville testified that although the School Department's request
for relief before the Board was not specifically discussed, the
School Department was adamant in not giving up any of its rights
relative to its complaint in M.L.R.B. No. 79-15.
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DECISION
The School DeDartment charges that the Teachers Association violated
26 M.R.S.A. 964(2)(C)(1), (2), and (3) when its agents and members failed to
attend staff meetings on September 5, 1978, and failed to report for classes
on September 6, 1978. The Teachers Association raises several imaginative but
unpersuasive reasons why the failure of its members to report for work on
September 6th should not be found to be a violation of Section 964(2)(C). We
find that the Teachers Association engaged in a strike in violation of Section
964(2)(C)(3) on September 6, 1978, and order remedies necessary to effectuate
the policies of the Municipal Public Employees Labor Relations Act, 26
M.R.S.A. 961, et seq. ("Act"). Alternate Employee Representative Paul Haney
dissents.
I. Substantive Issues
The record shows beyond doubt that a significant percentage of the
teachers and support staff represented by the Teachers Association did not
work as scheduled on September 6, 1978. According to the statement tendered
by the President of the Teachers Association to Superintendent Dunn, the
teachers did not work on September 6, 1978 because they were discussing the
status of contract negotiations, having commenced the third straight school
year without a contract.
While it is understandable that the teachers might be frustrated about
starting the school year without a contract, the fact that a new contract had
not yet been negotiated provides no justification for the teachers' failure to
work. Sanford Highway Unit v. Town of Sanford, M.L.R.B. No. 79-50 at 13
(1979), appeals docketed Nos. CV 79-171, et al. (York County Super. Ct.
April 10, 1979). If the Teachers Association believed the School Department
was bargaining in bad faith or otherwise violating the Act, its only recourse
was to utilize the statutory procedures prescribed by the Legislature and
file a complaint with the Board pursuant to 26 M.R.S.A. 968(5)(B).
This the Teachers Association failed to do, electing instead to engage in
impermissible self-help measures. In light of the unrebutted evidence that
many of the teachers and support staff failed to work as scheduled on
September 6th, we find that the Teachers Association engaged in a strike in
violation of Section 964(2)(C)(3) of the Act on September 6th.[fn]1
The Teachers Association first urges that the teachers cannot be said to
have been on strike on September 6th because there was no contract in effect
covering the terms and conditions of employment on that date. This argument
is meritless because the fact that a contract is or is not in effect has no
relevance in the
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1 Because the Teachers Association clearly violated Section 964(2)(C) when
its agents and members failed to work on September 6th, we find it
unnecessary to decide whether the Teachers Association's activities on
September 5, 1978 also constituted a violation of the Act.
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determination whether the teachers failed to work in violation of the Act.
The Act does not provide that a failure to work when there is no contract
in effect is permissible, and we know of no definition of the term "strike"
which excludes a failure to work when a contract is not in effect. The
teachers' failure to work on September 6th violated Section 964(2)(C) regard-
less whether or not a contract was in effect.
The Teachers Association then contends that the "no-strike" provision in
the expired agreement subjects a violation of that provision to the grievance
procedure provided in the agreement, asserting that this is the "perfect case"
for the Board to defer to arbitration. This argument is correct to the extent
that the grievance procedure did survive expiration of the agreement pending
negotiation of a successor agreement. Easton Teachers Association v. Easton
School Committee, M.L.R.B. No. 79-14 at 5-6 (1979). However, the plain import
of the grievance procedure in question is that the employees and not the
School Department are provided the right to grieve problems involving the
terms and conditions of the agreement. In short, the grievance procedure
contains no provision which would allow the School Department to grieve a
violation of the "no-strike" clause.
Even if the School Department could grieve a violation of the agreement,
this is not the type of case we would defer to arbitration. We have on
occasion deferred to arbitration in cases involving disputes over the meaning
or applicability of contract provisions when the contract provides a grievance
procedure for resolving the matter in controversy. See, e.g. M.S.A.D. No. 45
Teachers Association v. M.S.A.D. No. 45 Board of Directors. M.L.R.B. No.
78-10 (1978) (dispute over the interpretation of a contract provision); Tri-22
Teachers Association v. S.A.D. No. 22, Board of Directors, M.L.R.B. No. 75-28
(1975) (dispute over the applicability of a sick leave provision).
In contrast, the crux of the complaint in the present case is, not that
the contract has been violated, but that Section 964(2)(C) of the Act has been
violated. This very plainly is not the type of case in which we should
exercise our discretionary deferral policy. Indeed, we would be derelict in
our duties imposed by Section 968(5)(C) of the Act were we to do so.
In sum, we conclude that the Teachers Association has presented no
persuasive reason why the strike by its members on September 6, 1978 should
not be held to be a violation of Section 964(2)(C)(3). We accordingly turn
to the remedies to be imposed for this violation.
II. Remedies
Upon finding a party has violated the Act, we are directed by 26 M.R.S.A.
968(5)(C) to issue "an order requiring such party to cease and desist from
such prohibited practice and to take such affirmative action . . . as will
effectuate the policies of [the Act]." We accordingly will order the Teachers
Association to cease and desist from engaging in the acts prohibited by
Section 964(2)(C). We will also order the Teachers Association to take the
affirmative action of
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posting copies of the attached notice on all bulletin boards to which it has
access in the Rumford school system.
The School Department has attempted to prove that it incurred expenses
totalling $1,484.33 due to the September 6, 1978 strike. These expenses are
itemized in Complainant's Exhibit No. 8 as follows:
Substitutes for striking teachers* 122.00
Legal fees (Flaherty, Preti & Beliveau PA) 250.00
Films for student activity - rental 186.50
" " " " - transport 16.50
Service (subpoenas) by Dep. Sheriff G. Carrier 33.00
Telephone expense - long distance 11.26
Excess custodial expenses at Elementary Building 18.75
for "strikers" rally
Witness fees - subpoened RTA officials for MLRB 128.00
hearing at Bangor
Expenses by Rumford School Committee representatives 122.35
for MLRB hearing at Bangor
Cost of classroom substitute for RTA official at MLRB 32.00
hearing in Bangor
Fees for in-service program by M. Esselstyn work-time 500.00
replacement for strike-time
Excess Negotiations Consultant expense 63.97
TOTAL EXPENSES INCURRED $1,484.33
NOTE: Item indicated * does not include any charges for teacher substitutes
for individuals who were absent due to illness or other authorized
reasons.
Superintendent Dunn testified that he has personal knowledge that these
expenses were incurred as a result of the teachers' failure to work on
September 6th and that the School Department had paid each bill, except for
the $500.00 figure itemized as "Fees for in-service program by M. Esselstyn."
The import of this testimony stands undiminished by cross-examination and
unrebutted by other testimony. With regard to the $500.00 figure, however,
Dunn testified that he has no personal knowledge. No other witness was
presented who could verify that this expense was incurred as a result of the
strike or that the School Department had paid the bill. We consequently
admitted into the record all of Complainant's Exhibit No. 8 except for the
$500.00 figure.
The School Department attempts to prove that Esselstyn's fee was legiti-
mately incurred as a result of the September 6th strike by attaching a copy of
Esselstyn's bill to its initial brief. Since the bill is for expenses
associated with a workshop conducted on November 17 and 18, 1978, the School
Department's theory apparently is that the November workshop would not have
been necessary but for the September 6th strike. We cannot accept this copy
of a bill as competent proof that the bill was incurred as a result of the
September strike. Since there is no testimony regarding the basis of the
bill, the Teachers Association has not been afforded the opportunity to test
the legitimacy of the bill through cross-examination. It thus would not be
proper to find that the bill, which receives no record support, was incurred
as a result of the strike.
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We consequently disregard the $500.00 figure, and find that the School
Department incurred expenses totalling $984.33 as a direct result of the
September 6th strike. These expenses would not have been incurred but for
the teachers'failure to work oh September 6th. There is neither allegation
nor evidence that any of these expenses were unnecessarily incurred. Were
it to appear that the School Department had seized the opportunity to "run
up" expenses on the Teachers Association, it is likely that we would disregard
any expenses which appeared to be extravagant or unnecessary. The expenses
contributing to the total of $984.33 are neither extravagant nor unnecessary.
The Teachers Association contends that the Board is not authorized in
Section 968(5)(C) to award damages to a party which prevails in an unfair
labor practice suit. The obvious answer to this argument is that we are not
awarding damages. Rather, we are ordering that the Teachers Association take
the affirmative action of reimbursing the School Department for the expenses
it incurred as a result of the Teachers Association's strike.
We have on several occasions ordered that a party which has incurred ex-
penses as a result of another party's flagrant unfair labor practice be reim-
bursed its expenses. M.S.A.D. No. 68 Teachers Association v. M.S.A.D. No. 68
Board of Directors, M.L.R.B. No. 79-22 (1979); Westbrook Police Unit v. City
of Westbrook, M.L.R.B. No. 78-25 (1978); Sanford Teachers Association v.
Sanford School Committee, M.L.R.B. No. 77-36 (1977). We consider the
September 6th strike to be a flagrant violation of the Act since the Act's
prohibition of strikes by public employees is well known, and since the
President of the Teachers Association stated to the Superintendent on
September 5th that he knew the strike would be against the law, but that the
teachers were adamant in their decision to strike. We therefore believe that
ordering the Teachers Association to take the affirmative action of reim-
bursing the School Department for the expenses incurred as a result of the
strike is necessary to effectuate the policies of the Act.
The Teachers Association also urges that the School Department agreed not
to seek relief for the strike when the School Department in September, 1978
agreed:
"The School Committee or its members will take no reprisals
against the Association or any teachers who did not work on
September 5 and 6, 1978. This will not prejudice practice
complaint 79-15."
This argument is contradicted by the testimony of Donald Belleville, the
Teachers Association's negotiator. Belleville testified that the meaning of
this agreement is that the School Department will not prohibit the Teachers
Association from using school facilities, will not favor teachers who are not
members of the Teachers Association, will not retaliate against teachers who
did not work, etc. While the request for relief in the School Department's
complaint before the Board was not specifically discussed, the School Depart-
ment was adamant in not giving up any of the rights associated with its
complaint, according to Belleville. The School Department's position thus is
memorialized in the agreement as "This will not prejudice practice complaint
79-15."
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Belleville's testimony makes it clear that the School Department never
agreed to aive up any of its rights relative to its complaint, including the
right to seek relief for the strike. The School Department had filed its
original complaint by the time the parties reached the above-quoted agreement,
thus the Teachers Association was aware of the specific relief sought by the
School Department. If the School Department had agreed to give up the riqht
to seek relief before the Board, we are certain that the Teachers Association
would have insisted that this agreement be unequivocally stated. In contrast,
the agreement reached by the parties preserves the School Department's right
to pursue the statutory remedies. In light of these circumstances, we con-
clude that the School Department's right to seek relief survived the
agreement.
ORDER
On the basis of the foregoing findings of fact and decision and by virtue
of and pursuant to the cowers granted to the Maine Labor Relations Board by
26 M.R.S.A. 968(5), it is ORDERED:
That Respondent Rumford Teachers Association
1. Cease and desist from engaging in any of the acts prohibited
in 26 M.R.S.A. 964(2)(C), and especially from engaging in
strikes.
2. Take the following affirmative action necessary to effectuate
the policies of the Act:
a) post copies of the attached notice on all bulletin
boards to which it has access in the Rumford school
system for a period of 60 consecutive days, and
b) reimburse the Rumford School Department a sum of
$948.33 for expenses which the School Department
incurred as a result of the strike on September 6,
1978. The Teachers Association is to pay the School
Department legal interest on this sum commencing from
the date of this Decision and Order to the date when
the entire sum is reimbursed.
3. Notify in writing the Maine Labor Relations Board at its
offices in Augusta, Maine of the steps it has taken to comply
with this Decision and Order within 30 days of the date of the
Decision and Order.
Dated in Augusta, Maine, this 30th day of July, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Donald W. Webber
Alternate Chairman
/s/____________________________________
Paul D. Emery
Employer Representative
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DISSENTING OPINION
I dissent from the majority's finding that the Teachers Association on
September 6, 1978, engaged in a strike in violation of 26 M.R.S.A.
964(2)(C)(3).
The record shows that some members of the Teachers Association, contrary
to the dictates of the School Department, did not report to classes on
September 6th. The Teachers Association on September 5th notified the
Superintendent that the teachers would not be meeting with students on
September 6th, and stated the reason why the teachers did not wish to meet.
All teachers and support staff reported as scheduled on September 7, 1978, and
throughout the remainder of the school year. The collective bargaining
agreement between the parties had expired by September 6, 1979, and a
successor agreement was not executed until September 18, 1978.
Had the teachers not reported for classes until the successor agreement
was executed, or otherwise manifested an intent to force the School Department
to capitulate to the teachers' bargaining demands, then I would agree that the
teachers struck in violation of the Act. In contrast, all that occurred was
that the opening of school was delayed by one day. The School Department was
notified of the delay and the reason for the delay prior to the fact, and did
not experience any great inconvenience or disruption of operations due to the
delay. I find nothing impermissible about the teachers starting school on
September 7th instead of September 6th. Certainly such a one-day delay does
not rise to the level of a clear violation of 964(2) of the Act.
In addition, I find it disturbing that the School Department was unable
to work out its problems with the Teachers Association without coming to the
Board. For the third consecutive year, the teachers were starting the school
year without a collective bargaining agreement. This fact alone suggests to
me that the School Department was not negotiating with the diligence and good
faith required by the Act. When a public employer engages in dilatory or
under-handed bargaining tactics, it is improper for it to expect this Board
to absolve it of the consequences. The School Department should have
bargained in a responsible and mature fashion, with the good faith aim of
resolving the parties' differences expeditiously.
I also believe that the majority should have taken a harder look at the
School Department's conduct during the negotiations, instead of merely citing
as a general principle that there was no justification for the teachers'
failure to work. Our prior decisions on the justification point are not
necessarily determinative in this case. Each case must be decided on its
merits. In my opinion, the majority's finding of a violation of 964(2)(C)
is not justified in light of the School Department's conduct in this matter.
Since I can see no violation of the Act by the Teachers Association on
September 6, 1978, I would order that the School Department's complaint be
dismissed.
Dated at Augusta, Maine, this 30th day of July, 1979.
MAINE LABOR RELATIONS BOARD
/s/__________________________________________
Paul Haney, Alternate Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL NOT engage in work stoppages, slowdowns or strikes in contraven-
tion of the laws of the State of Maine.
(2) WE WILL reimburse the Rumford School Department a sum of $948.33 for
expenses incurred as a result of the strike on September 6, 1978.
(3) WE WILL notify in writing the Maine Labor Relations Board at its offices
in Augusta, Maine of the steps we have taken to comply with the Decision
and Order within 30 days of the date of the Decision and Order.
RUMFORD TEACHERS ASSOCIATION
Dated ____________________________ By __________________________________
(Representative) (Title)
____________________________________________________
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone
289-2016.
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