STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-16
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)
BOARD OF SCHOOL DIRECTORS OF )
MAINE SCHOOL ADMINISTRATIVE )
DISTRICT NO. 24, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
VAN BUREN CUSTODIAN/BUS DRIVER/ )
MAINTENANCE PERSONNEL ASSOCIATION, )
)
Respondent. )
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Complainant Board of School Directors of Maine School Administrative
District No. 24 ("Directors") filed a complaint on September 11, 1978.
Respondent Van Buren Custodian/Bus Driver/Maintenance Personnel Association
("Association") filed its response on September 29, 1978. A pre-hearing
conference was held before Alternate Chairman Donald W. Webber who issued a
Pre-hearing Conference Memorandum and Order on October 31, 1978, which is
incorporated herein by reference.
The Board conducted a hearing on the case in Augusta, Maine on January 9,
1979, Chairman Edward H. Keith presiding, with Employee Representative Michael
Schoonjans, and Employer Representative Paul D. Emery.
The Directors were represented by Harry R. Pringle, Esq., the Association
by Mr. Elmer Corbin; both filed briefs after the hearing.
JURISDICTION
No party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter to hear and render a decision under Title 26 M.R.S.A.
968(5).
FINDINGS OF FACT
From the entire record, the contentions of the parties, and from obser-
vation of the witnesses and their demeanor, the Board finds that:
1. Complainant Is a public employer in accordance with 26 M.R.S.A.
Sec. 962(7). Respondent is a bargaining agent in accordance with
26 M.R.S.A. 962(2).
2. The Directors and the Association have had a collective bargaining
relationship for some years, their most recent collective bargain-
ing contract having expired on June 30, 1978. On February 9, 1978
the Association notified the Superintendent of Schools that it wished
to begin negotiations for a 1978-1979 contract. The parties subse-
quently held their first formal session on June 28, 1978, with two
sessions following on July 13, 1978 and August 21, 1978. All three
meetings were devoted solely to a discussion of ground rules for
negotiations, and were held in closed executive session as had been
the past practice of the parties.
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3. At the June 28 session, the Directors proposed a set of ground
rules identical to those used in previous negotiations with the
Association and the Director's four other bargaining units with
which the Directors also negotiate. The suggested ground rules
had been employed previously by the spokesman for the Association,
Mr. Corbin, when he was a member of both the Complainant Directors
and the Directors' negotiating team. Although several items of
disagreement arose concerning portions of the suggested ground
rules, including questions concerning the contents of the agenda,
the proposal for the exchange of packages, and the role to be
assumed by the spokesman for the negotiating team, all of these
issues were ultimately resolved to the satisfaction of the parties
by the second meeting on July 13. Only one issue concerning the
ground rules remained unresolved: the Association's insistence
on the use of a tape recorder to record the negotiating sessions.
4. The issue of the tape recorder was first discussed by the parties
at the July 13 session. Although Mr. Jerome Morrissey, President
of the Association, testified that a tape recorder had been present
at the June 28 meeting and that an unidentified member of the
Director's negotiating team had seen it and asked whether it was
going to be used to "play music," all the District team members
were not aware that the device was being used to record the session.
In any event, the Association did not mention that the June 28
session was being recorded and did not ask permission to do so. Not
until the July 13 meeting did the issue of the tape recorder first
come up.
5. The issue was first raised by Mr. Harvey Beaulieu, a negotiating
team member and spokesman for the Directors. Again, the Association
had neither told the Directors that the meeting was being taped nor
requested permission to do so; rather, Mr. Beaulieu asked the Asso-
ciation if the meeting was being taped. When Mr. Corbin replied
that it was, Mr. Beaulieu attempted to deal with the situation by
suggesting that such an arrangement might be satisfactory if the
Association were to make a copy of the tape available to the
Director's negotiating team. When it became apparent that neither
this nor other precautionary safeguards such as keeping the tapes
in the school safe would be acceptable to the Association, the
Directors' negotiators informed the Association that while they
were ready to negotiate wages, hours and working conditions, they
were unwilling to have the negotiating session recorded unilaterally
as they did not believe that would constitute negotiating in good
faith. Mr. Beaulieu also expressed concerns regarding possible
misuse of the tapes and his privacy rights. On this note the
July 13 meeting adjourned, Mr. Corbin leaving after indicating that
he would check with the "Labor Department" with respect to the issue
of the tape recorder.
6. At the final session between the parties on August 21 Mr. Corbin
again indicated that while the proposed ground rules were acceptable
he did insist on using the tape recorder for his own purposes. The
Director's negotiators reiterated their position that they did not
believe that tape recording closed sessions was proper, saying that
they would have no recourse but to file a prohibited practice com-
plaint with the Maine Labor Relations Board if Mr. Corbin continued
to adhere to this position. After an unsuccessful attempt was made
to resolve the impasse by the suggestion that both parties negotiate
entirely new ground rules, Mr. Beaulieu declared that the meeting was
adjourned. When Mr. Corbin objected to the adjournment he was asked
if he wished to continue negotiations without the tape recorder being
present. Mr. Corbin replied that unless he was able to use the tape
recorder the Association would not negotiate further. As Mr. Morris-
sey testified later at the hearing, the position of the Association
is that it will not continue negotiations unless it is allowed to
record the negotiating sessions.
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7. The Association was apparently motivated in its insistence by the
desire to have something by which its members could judge the quality
of Mr. Corbin's performance as spokesman and to have good minutes
of the meeting. Association team members never thought of asking the
Directors for a copy of the typed minutes usually taken by the Super-
intendent of Schools, Carlton J. Dubois. The teacher'a union
receives a copy when they negotiate and a copy would be provided to
the Association if requested.
DISCUSSION
The Directors allege that the Association has failed to bargain in good
faith by insisting to the point of impasse on making tape recordings of nego-
tiation sessions.[fn]1 The Association responded that there was an agreement
to allow the taping of the sessions, that the Directors waived their right to
object to the taping, and that the Directors caused the termination of the
negotiations.
We conclude that the issue of the use of a tape recorder is not a manda-
tory subject of bargaining, that the Association insisted on this subject to
the point of impasse and therefore that the Association has committed a per se
violation of the duty to bargain in good faith in accordance with 26 M.R.S.A.
964(2)(B) through 965(1)(C).
There is no question but that the parties are at an impasse over the
issue of tape recording negotiating sessions: as Mr. Morrissey testified, the
Association is unwilling to negotiate unless it is allowed to tape the nego-
tiating sessions; as Mr. Beaulieu testified, the Board is willing to proceed
with negotiations without any recording being done.
Title 26 M.R.S.A. 965(1)(C) requires that public employers and bargain-
ing agents negotiate in good faith with respect to wages, hours, working
conditions and contract grievance arbitration. By necessary inference other
issues may, but need not, be negotiated. The use of a tape recorder during
bargaining sessions, however, simply does not fall within any of the four
mandatory subjects of negotiation. This Board has previously decided that a party may not Insist on a non-
mandatory subject of bargaining in Maine Teachers Association v. Sanford
School Committee, MLRB No. 77-18 (1977).
The National Labor Relations Board had occasion to face precisely this
issue in Bartlett-Collins Co., 237 NLRB No. 106, 99 LRRM 1034 (1978). In that
case, an employer insisted to the point of impasse on the presence of a court
reporter to provide a verbatim transcript of negotiating sessions. After
first discussing the landmark Supreme Court case of NLRB v. Worcester Division
of Borg-Warner Corp., 356 U.S. 342, 349, 42 LRRM 2034 (1958), which distin-
guished between mandatory and permissive subjects of negotiations, the NLRB
concluded that:
"It is our view that the issue of the presence of a court reporter
during negotiations or, in the alternative, the issue of the use of
a device to record those negotiations does not fall within 'wages,
hours, and other terms and conditions of employment.' Rather these
subjects are properly grouped with those topics defined by the Supreme
Court as 'other matters' about which the parties may lawfully bargain,
if they so desire, but over which neither party is lawfully entitled
to insist to impasse. The question of whether a court reporter should
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1 The Directors also contend that the Right-to-Know Law, 1 M.R.S.A. 405(6)
(D) has been violated in letter and spirit by the Association's conduct.
We find it unnecessary to decide this question.
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be present during negotiations is a threshold matter, preliminary
and subordinate to substantive negotiations such as are encompassed
within the phrase 'wages, hours, and other terms and conditions of
employment.' As it is our statutory responsibility to foster and
encourage meaningful collective bargaining, we believe that we would
be avoiding that responsibility were we to permit a party to stifle
negotiations in their inception over such a threshold issue."
Bartlett-Collins Co., 99 LRRM at 1036 (footnote omitted). Accord, Carpenter
Sprinkler Corp., 237 NLRB No. 141, 99 LRRM 1356, 1358 (1978).
This case falls squarely within the Bartlett-Collins rationale. Both
involve an insistence to impasse upon the use of a device to provide a
verbatim transcript of negotiations. As Bartlett-Collins specifically
recognized, the use of a tape recording device is the functional equivalent
of the presence of a court reporter. The use of such a device is an ancillary
issue not within the statutory phrase wages, hours, working conditions and
contract grievance arbitration,[fn]2 and clearly constitutes a threshold issue
which can only "stifle negotiations in their inception." That fact is force-
fully brought home in this case, since as a result of the dispute in this
action the parties have been unable to continue negotiations for a lengthy
period.
In Quamphegan Teachers Association v. Board of Directors, School
Administrative District No. 35, MPELRB No. 73-05(1973), this Board addressed
the issue of the ability of a party to public sector negotiations in Maine to
insist that negotiations sessions be held in public. The Board phrased the
issue as follows:
"May a public employer or a party to a collective bargaining
agreement be allowed to frustrate negotiations under the purposes
of Chapter 9-A, Title 26, Maine Revised Statutes Annotated, by
insisting on certain procedural points which will result in a slow-
ing, retarding or hindering of the implementation of negotiations?"
Quamphegan Teachers at 4.
After considering the public policy underlying the Public Employees Labor
Relations Act, the Board analyzed the effect on that policy of allowing a
party to insist on public bargaining sessions and concluded that such an
insistence did not constitute good faith bargaining. The Board then noted as
follows:
"[It is] our belief that the use of a stenographer, recording
device, or presence of the press and public to report the happen-
ings of a negotiation session or to create a verbatim transcript
of that meeting 'does tend to encourage negotiators to concentrate
upon and speak for the purpose of making a record rather than
directing their efforts towards a solution of the issues before
them.'" Quamphagan Teachers at 6 (emphasis added).
Just as the insistence of a public employer on conducting negotiating
sessions in public constitutes a violation of the duty to bargain in good
faith, so also does the insistence of an employee association upon recording
negotiating sessions constitute such a violation.
At the hearing, Mr. Beaulieu testified that he was uncomfortable in
negotiating while a tape recorder was running, that he did not know the use
to which the tape recordings would be put, and that he felt that his right to
privacy would be violated.
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2 For the purposes of this issue, the statutory phrase in 26 M.R.S.A.
965(1)(C) is identical to the phrase "wages, hours and other terms and
conditions of employment" used in the National Labor Relations Act.
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These are precisely the kinds of reasons why this Board should not allow a
party to collective bargaining to insist on the use of a tape recorder as a
precondition to negotiations. Tape recorders create an inhibiting atmosphere
for many people, and successful collective bargaining requires that the
parties be allowed to concentrate their efforts upon solving the difficult
issues involved in negotiations, rather than upon creating a record of such
sessions.
W,
In Bartlett-Collins the NLRB relied heavily upon the fact that many
experts in the field of labor relations were of the opinion that the presence
of a reporter during contract negotiations "has a tendency to inhibit the free
and open discussion necessary for conducting successful collective
bargaining." Bartlett-Collins Co., supra, 99 LRRM at 1036 n.9.
The kernel of the matter was sublimely expressed in the similar context
of international diplomacy by Herbert Fisher who wrote: "It is easier for
eight or nine elderly men to feel their way towards unanimity if they are not
compelled to conduct their converging maneuvers under the microscopes and
telescopes of the press, but are permitted to shuffle about a little in
slippers." H. Fisher, An International Experiment (The League of Nations)
(1921).
The Association's claim that there was an agreement to allow it to tape
the negotiations is without merit. There were discussions but an agreement
was simply not reached. Moreover, it was the Association's burden to obtain
agreement on this new ground rule procedure by actually proposing it. Since
the Association never asked permission to use the recorder and since the
Directors were the party which first raised the subject, we see absolutely no
basis to imply an agreement to this procedure or a waiver of the right to
object.
Finally, it is plain that impasse was reached. In that event it is
immaterial which party terminates the meeting once it is clear that nothing
more can be said.
In conclusion, since the dispute as to the tape recorder does not
constitute a mandatory subject of bargaining, the insistence to impasse upon
its use by the Association clearly constitutes a per se violation of 26
M.R.S.A. 965(1)(C) and therefore 964(2)(B).
Having found that the Association has engaged in a prohibited practice,
we shall order pursuant to 26 M.R.S.A. 968(5) the Association to cease and
desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
ORDER
Respondent, Van Buren Custodian/Bus Driver/Maintenance Personnel Associa-
tion, its representatives and agents shall:
1. Cease and desist from insisting on a subject of bargaining which
is not wages, hours, working conditions or contract grievance,
and from insisting on using a tape recorder to record discussions
at collective bargaining sessions.
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2. Take the affirmative action of bargaining collectively with
the Board of School Directors of M.S.A.D. No. 24.
Dated at Augusta, Maine this 27th day of March, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Michael Schoonjans
Employee Representative
/s/____________________________________
Paul D. Emery
Employer Representative
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