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 -1- ______________________________________________________________________________ 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: -2- ______________________________________________________________________________ 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. -3- ______________________________________________________________________________ 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 _______________ 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. -4- ______________________________________________________________________________ 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 -5- ______________________________________________________________________________ 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. -6- ______________________________________________________________________________ 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." -7- ______________________________________________________________________________ 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 -8- ______________________________________________________________________________ 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 -9- ______________________________________________________________________________ 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. ______________________________________________________________________________