STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-22
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)
M.S.A.D. #68 TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. )
)
M.S.A.D. #68 BOARD OF DIRECTORS ) DECISION AND ORDER
)
and )
)
JOINT BOARD OF DIRECTORS OF )
FOXCROFT ACADEMY, )
)
Respondents. )
____________________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed October 2, 1978 by Milton R. Wright,
UniServ Director, Maine Teachers Association, and representative of M.S.A.D.
#68 Teachers Association. A response was filed on October 19, 1978 by John L.
Easton, Jr., Esq., of C.W. & H.M. Hayes, Attorneys for Respondents M.S.A.D.
#68 Board of Directors and Joint Board of Directors of Foxcroft Academy.
A pre-hearing conference was held in Augusta, Maine on November 17, 1978
by Alternate Chairman Donald W. Webber. As a result of this preheating
conference, Alternate Chairman Webber issued on November 20, 1978 a Pre-
Hearinq Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
On December 28, 1978 the Board conducted a hearing on the case in
Augusta, Maine, Alternate Chairman Webber presiding, with Henry W. Mertens,
Alternate Employer Representative, and Paul Haney, Alternate Employee Repre-
sentative. The parties consented to the Board's taking notice of all relevant
documents in its files. At the conclusion of the hearing, the parties had
the opportunity for oral argument and then submitted the matter without
written briefs. The Board proceeded to deliberate over the case at a
conference held immediately after the hearing.
JURISDICTION
No party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter. The Board has jurisdiction to hear and render a
decision in this case under 26 M.R.S.A. 968(5).
FINDINGS OF FACT
From the entire record in this case, the contentions of the parties, and
from the observation of the witnesses and their demeanor, the Board finds
that:
1. Complainant M.S.A.D. #68 Teachers Association ("Teachers
Association") was at all material times the exclusive bar-
gaining agent as defined in 26 M.R.S.A. 962(2) for a
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unit of teachers in the employ of Respondents.
2. Respondents M.S.A.D. #68 Board of Directors and Joint Board
of Directors of Foxcroft Academy ("Directors"), are public
employers within the meaning of 26 M.R.S.A. 962(7).
3. Kenneth T. Winters was at all material times a duly authorized
representative, Chief Negotiator and spokesman for the Directors.
He at no time exceeded his authority to act on behalf of the
Directors and such has never been alleged.
4. There were four additional members on the Directors' negotiating
team, each being a Director of at least one of the two respondent
boards. Superintendent of Schools for M.S.A.D. #68 and Secretary
of the Joint Board of Directors of Foxcroft Academy, Eben Dewitt,
was also present at all negotiations after the first session.
5. Milton R. Wright was at all material times a duly-authorized
representative and negotiator for the Teachers Association.
6. The 1976-78 collective bargaining agreement between the parties
was effective as of September 1, 1976 and remained in full force and
effect until August 31, 1978. Negotiations for a successor agree-
ment were held on March 27, April 17, May 17, June 3, June 14, and
July 14, 1978.
7. The Directors unilaterally requested on July 17, 1978 that the
Maine Labor Relations Board assign a mediator to conduct mediation
proceedings between the parties. A mediator was assigned by the
Board and a mediation session was held on September 5, 1978 for
three hours.
8. The Teachers Association unilaterally requested on July 17, 1978
the assignment of a Fact-Finding Board. Such was assigned and a
hearing was scheduled for September 22, 1978.
9. The mediation session on September 5, 1978 was not considered very
fruitful by both parties. Shortly after the session was concluded,
Mr. Winters and Mr. Wright agreed with each other that a certain
different mediator could possibly produce a contract between the
parties.
10. A few days later Mr. Winters prepared a joint request for mediation
form and letter dated September 8, 1978. On September 11, 1978
Mr. Wright met with Mr. Winters at the latter's office and they
jointly executed the joint request documents. They specifically
requested that mediation be conducted by a specific mediator and
that it be scheduled in Dover-Foxcroft at Foxcroft Academy at
3:30 p.m. Friday, September 22, 1978. Having participated in a
joint request for mediation, Mr. Wright then requested in writing
on September 11, 1978 that the fact-finding scheduled for September
22, 1978 be indefinitely postponed.
11. On September 13, 1978 Parker Denaco, Executive Director of the Maine
Labor Relations Board, sent a letter to the parties in which he
acknowledged the joint request for mediation, assiqned the requested
mediator, and indicated that the mediator would contact the parties
to determine what steps to take in settlinq the impasse.
12. The mediator confirmed with both parties that the mediation would
take place at the time and place that had been requested.
13. Although the exact nature of Mr. Winters' written authority to act
on behalf of the Directors is unknown since his signed contract for
services with the Directors was not introduced, it was clear and
at all times uncontradicted that he had the power and authority to
request mediation services with the approval of Superintendent Dewitt
and that he had such approval prior to submitting the joint request
for mediation.
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14. Mr. Dewitt notified Mr. Winters in Atlanta shortly thereafter
that the Directors did not wish to attend the September 22
mediation session. Mr. Winters stated that he knew, both from
his service as an Alternate Employer Representative of the
Maine Labor Relations Board for approximately two years and
from his extensive experience as a management-labor relations
consultant in Maine that one party can unilaterally invoke
mediation procedures and thereby require the attendance and
participation of the other and that this principle applied
equally as well where both parties jointly request mediation.
Mr. Winters stated that the Directors had an obligation under
Maine law to attend the mediation and that their failure to
attend could result in a prohibited practice complaint.
Mr. Winters conveyed all of this information to Mr. Dewitt
who conveyed it at least to the Directors' negotiating team.
He also told them that both Mr. Wright and Mr. Winters thought
the session would be fruitful.
15. Nonetheless, in a subsequent informal meeting of three of the
four members of the Directors' negotiating team, the team
unanimously decided to persist in its decision not to attend the
scheduled mediation session on September 22, 1978. There was no
claim of inability to attend. The only reason ever given was that
they did not think the session would be fruitful. Mr. Dewitt
notified Mrs. Bonita Alpander, an associate of Mr. Winters, and
called Mr. Winters in Atlanta on or after September 12, 1978 to
convey the Directors' position about the meeting. The Directors
did not move to join the Teachers Association's original request
for fact-finding.
16. There followed at a minimum the following flurry of telephone
and oral communications. Mr. Dewitt spoke to Mr. Winters in
Atlanta at least five times over the next few days concerning
the Directors' intentions. During the last conversation Mr. Winters
indicated that he would try to have the meeting cancelled. Mr.
Winters had numerous conversations with staff members of the Maine
Labor Relations Board, with Mr. Wright, and with the mediator.
Mr. Wright had numerous conversations with Mr. Winters, Mrs. Alpander,
and with the mediator. It is clear from the evidence concerning
these communications that Mr. Winters tried to have the mediation
cancelled, that the mediator told Mr. Winters that the mediation
could not be cancelled without the agreement of Mr. Wright, that
Mr. Winters attempted to gain Mr. Wright's agreement but Mr. Wright
refused, that Mr. Wright expressed to Mrs. Alpander and to the
mediator adamant opposition to the suggestion that the mediation
be cancelled, and that Mr. Wright expressed to Mr. Winters the
proposed cancellation at least by strong and plain implication and
warned him of a prohibited practice complaint if the Directors did
not attend the session.
17. In addition, Superintendent Dewitt, who was in frequent contact with
the Directors, was never told that the mediation had been cancelled.
The Directors, who were not present at the hearing, were never told
that the mediation had been cancelled. They also never sought a
second opinion concerning their legal duty to attend the mediation
besides that of Mr. Winters that they had such a legal duty.
18. As late as September 21, 1978 and again the morning of September 22,
1978, Mr. Winters spoke with Mr. Wright about the scheduled media-
tion, knowing that the mediator and the Teachers Association
intended to attend the mediation session, and knowing that without
Mr. Wright's agreement to cancel the meeting, it would have to go on.
19. The mediator and the Teachers Association negotiating team were
present at the scheduled time and place on September 22, 1978. No
one appeared on behalf of the Directors.
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20. There was no persuasive evidence to support the affirmative defense
that the request was withdrawn. In fact the request was not with-
drawn; and neither Mr. Wright nor a staff member of the Board were
notified of such. At best thev were notified of the Directors' in-
tention not to attend and the hope that the joint request would be
withdrawn. Both parties conceded at the hearing that one party
could not effectively withdraw the joint request in any event.
In contrast, the probative evidence was overwhelming that the joint
request was never withdrawn and that there was no basis for the
Directors to believe that it had been. In addition, Mr. Wright's
recollection of the events was better than that of the other
witnesses.
21. This complaint was filed with the Board on October 2, 1978. The
fact-finding session, originally scheduled for September 22, 1978
but postponed because of the mediation scheduled as a result of the
joint request, was ultimately scheduled for October 13, 1978. A
collective bargaining agreement had not been reached by the time
of the hearing.
22. The Teachers Association's share of the fees for services of the
fact-finders amounted to $816.03.
DECISION
Complainant has charged that Respondents violated 26 M.R.S.A. 964(1)(E)
by failing to participate in good faith in mediation jointly requested and
scheduled to take place on September 22, 1978. Respondents admit the facts of
the complaint but argue by way of affirmative defense that the Complainant and
the Board were notified that the request had been withdrawn. At the hearing
Respondents argued (1) that they should be excused from attendance basically
because they reasonably could have believed that the session would be
cancelled, (2) that they were not legally bound to attend more than one
mediation session, and (3) that the effect on the Teachers Association was
not substantial in any event. Upon consideration of the entire record, the
specific findings of fact, applicable legal precedent, and pertinent policy
considerations, the Board concludes, for the reasons stated below, that
Respondents' failure to attend the mediation session on September 22, 1978
under all these circumstances constitutes a violation of the prohibition from
refusing to bargain collectively established in 26 M.R.S.A. 964(l)(E) by
breaching the obligation to participate in good faith in mediation procedures
required by 26 M.R.S.A. 965(1)(E).
I
Section 965(l) of the Act states:
"It shall be the obligation of the public employer and the
bargaining agent to bargain collectively. 'Collective
bargaining' means, for the purposes of this chapter, their
mutual obligation
. . .
E. To participate in good faith in the mediation, fact-
finding and arbitration procedures required by this section."
Section 965(2)(B) states:
"Mediation procedures shall be followed . . . in the case of
disputes affecting public employers, public employees or
their respective representatives as defined, whenever requested
by either party prior to arbitration . . . ."
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This is the first opportunity for the Board to apply 26 M.R.S.A.
965(1)(E) to mediation procedures. In contrast, the Board has issued a
number of decisions involving fact-finding procedures and there is no reason
to treat the two procedures any differently with regard to the duty to parti-
cipate in good faith.
As with the duty to bargain in good faith, where one is required to
bargain in fact even before the question of good faith intent is reached, see
Lake Teachers Ass'n v. Mount Vernon School Comm., MLRB No. 78-15 (1978) and
N.L.R.B. v. Katz, 369 U.S. 736, 82 S. Ct. 1107 (1962), the duty to participate
in mediation, fact-finding and arbitration procedures in good faith first
requires participation and second requires such in good faith. The first
part of the duty is plainly susceptible to violation without regard to motive
or intent: it requires that parties must participate by keeping their commit-
ments and strictly adhering to whatever procedures are agreed upon in the
process.
Thus in Sanford School Comm. v. Sanford School Custodian Unit (M.T.A.).
MLRB No. 78-33 (1978), the Board found that an inadvertent failure to comply
with an agreement to supply certain documents to fact-finders constituted a
failure to participate in good faith as required by 26 M.R.S.A. 965(2)(E).
The Board reached this conclusion even though there was no intent to frustrate
the process. The Board concluded that: "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 infor-
mation or to perform any other agreed-upon action designed to aid the fact
finders in their determinations." Sanford School Comm., supra, at 2. See
also Arundel Teachers Ass'n v. Majercik, PELRB No. 73-08 (1973).
Similarly, in Sanford Teachers Ass'n v. Sanford School Comm., MLRB No.
77-36 (1977), the Board concluded that 26 M.R.S.A. 965(1)(E) was violated
where a party did not follow proper procedures in fact-finding. With regard
to the question of the underlying intent the Board stated: "A benign dis-
regard for the consequences of one's actions cannot excuse the natural
consequences of those actions." Sanford Teachers Ass'n, supra, at 4.
The Directors in the instant case plainly and without valid excuse did
not strictly adhere to their commitments and to the established mediation
procedures. The September 22, 1978 mediation session with the new mediator
could not have been more clearly established and agreed upon between the
parties and the mediator. The Directors' failure to participate at that
scheduled session or at any further mediation are conceded.
The Directors pleaded the affirmative defense that they had withdrawn
the request for mediation prior to the scheduled mediation. Since it is
clear from the facts that this was a joint request for mediation which could
not be unilaterally withdrawn in any event, this defense was not pressed.
Rather Respondents argued that they should be excused from their failure to
appear because they reasonably could have believed that the session had been
cancelled.
The facts, however, are to the contrary. It was the mediator who con-
firmed the details of the scheduled mediation with the parties. The mediator,
though requested by Mr. Winters, did not agree to cancel the mediation.
Mr. Winters
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knew from experience that the Teachers Association would have to agree before
the session could be cancelled. Moreover, the mediator told Mr. Winters when
he inquired about cancelling the session that he must obtain the agreement of
the Teachers Association. Although Mr. Winters contacted Mr. Wright with this
intention, he plainly never garnered such an agreement. Rather, Mr. Wright
adamantly maintained his intention to participate.[fn]1
In addition, there was no substantial evidence to support the contention
that any staff member of the Board ever indicated that it would or even could
cancel the scheduled session. Such scheduling was in the hands of the
mediator and the parties alone. Moreover, staff members were available for
corroborative testimony on this claim but were not called as witnesses. It is
also clear that the Respondents were never told that the meeting had been
cancelled. There was no other basis for them to believe it had been. To the
extent that confusion may have reigned in the understanding of the
Respondents, it was all of their own making.
The facts of this case indicate that there was more than simply benign
neglect involved however. The Directors also ran afoul of the second part of
the duty. The Directors knew, well before September 22, 1978, that it was
their legal duty to attend that session and that they could be committing a
prohibited practice by failing to attend. They did not seek an alternative
opinion[fn]2 to the advice of Mr. Winters, an experienced labor relations
consultant. They also knew that Mr. Winters thought the session could be
fruitful. Nonetheless, this advice was cast aside simply because they did
not think it would be fruitful and therefore did not wish to attend. They
cannot and did not claim ignorance of the law.
Under all the circumstances then, this conduct is also a violation of the
duty to participate in mediation in good faith. The Legislature has mandated
dispute resolution procedures which under some circumstances, such as here,
public employers and public employees or their representatives must partici-
pate in whether they desire to or not and whether they think it will be fruit-
ful or not. With respect to mediation, the Act states that"[m]ediation
procedures shall be followed . . . whenever requested by either party prior
to arbitration." 26 M.R.S.A. 965(2)(B). Moreover, such procedures must be
followed until "the mediator or
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1 Mr. Wright's refusal to agree to a cancellation is completely understand-
able given these circumstances. The only reason for the proposed cancellation
was that the Directors did not think mediation would be fruitful and therefore
did not wish to attend - it was not a matter of personal commitment or con-
venience. No alternative date was suggested, rather it was his agreement to
the termination of all mediation that was sought. Given his experience and
his prior discussions with Mr. Winters, Mr. Wright had substantial reason to
believe that the scheduled session could produce a contract between the
parties. Proceeding to fact-finding would bypass a possible resolution of
some if not all issues, would delay the ultimate agreement and would incur
significant additional expense. There is thus no basis for the proposition
that the Respondents were "set up" for a prohibited practice complaint by the
Complainant.
2 We do not suggest that reliance on legal opinion excuses a party from
otherwise unlawful action.
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mediators are unable to accomplish" the settlement of the dispute.[fn]3
26 M.R.S.A. 965(2)(E).
In summary, Respondents have violated 26 M.R.S.A. 964(1)(E) through 26
M.R.S.A. 965(1)(E) in both parts of the duty: participation and participa-
tion in good faith. Respondents' argument that the only consequence of its
action was a net delay of three weeks in the scheduling of fact-findinq is
discussed below.
II
Having found a violation of the Act the Board must turn to its duty to
fashion such a remedy as will effectuate the policies of the Act. 26 M.R.S.A.
968(5)(C). The Complainant seeks relief in the form of a cease and desist
order with posting, its actual costs of fact-finding, and its costs of pro-
cessing this complaint. An appropriate cease and desist order with posting
is directed. However, the Board will not award the costs of fact-finding in
the relief section.
It is not because the damage has not been substantial, however, that the
Board does not award this expense. In contrast, the fact of substantial
injury to the Complainant is clear. The fact of injury to the State, which
must pay the mediator's bill for services and expenses, is also clear. See
26 M.R.S.A. 965(2)(C). And, significantly, the process of mediation itself
is injured.
To itemize as consequential damages the Complainant's share of the fact-
finders' bills, however, would require the Board to engage in speculation or
surmise as to the chances of a settlement of the dispute, but for the unlawful
conduct of Respondent.[fn]4 This will not be done. No other evidence of
direct consequential damages was presented.
5
Under the unique and exceptional circumstances of this case,[fn]5
however, the Board will award the cost to the Complainant for attorney's
preparation and a part-day of hearing in litigation of this complaint in the
amount of $300. A similar remedy has been found appropriate in a previous
case. See Westbrook Police Unit of Local 1824, Council 74 (AFSCME) v. City
of Westbrook, MLRB No. 78-25 (1978). See also Sanford School Comm. v. Sanford
School Custodian Unit - MTA, supra. Such a remedy is demanded here by the
interests of justice and is necessary to effectuate the policies of the Act.
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3 Respondents' argument that a party cannot be required to attend more than
one session is without merit legally and factually. As indicated, the
requirement to participate is not measured by the numbers of sessions but
rather by the success or failure of the entire procedure. Moreover, the
September 22, 1978 session was in fact the first session resulting from the
joint request for mediation.
4 Lest a party be spurred to avoid settlement of a dispute simply because a
prohibited practice complaint is outstanding in order to avoid the creation of
a measure of certainty to damages, it must be understood that the cost of
fact-finding could not be deemed a definite and nonspeculative item even if
it had been successful here, since it might have been necessary even if the
September 22, 1978 session had been attended.
5 In addition to the facts of this case, this is not the first time that
the Directors have failed to bargain in good faith with the Teachers Associa-
tion. In John Glover and M.S.A.D. #68 Teachers Ass'n v. M.S.A.D. #68 Bd. of
Directors and Joint Bd. of Directors of Foxcroft Academy, MLRB No. 77-07
(1977), this Board found that these same Respondents had failed to bargain in
good faith by withdrawing tentative agreements and ordered that they "cease
and desist . . . especially from refusing to bargain collectively with the
M.S.A.D. #68 Teachers Ass'n.
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ORDER
On the basis of the foregoing findings of fact and pursuant to the powers
granted to the Maine Labor Relations Board by 968 of the Municipal Public
Employees Labor Relations Act ("Act"), it is ORDERED:
1. That Respondents and their representatives and agents cease and
desist from refusing to bargain collectively with the M.S.A.D.
#68 Teachers Association, the bargaining agent of its employees,
as required by Section 965 of the Act, and from refusing to par-
ticipate in good faith in mediation procedures as required by
Section 965(1)(E); and
2. That copies of the Notice attached to this Decision and Order
be signed and dated by a representative of M.S.A.D. #68 Board
of Directors and of the Joint Board of Directors of Foxcroft
Academy and posted at all work locations of the unit of teachers
represented by M.S.A.D. #68 Teachers Association, where notices
are normally posted, for a period of 60 consecutive days from
the date of posting, to commence on or before February 5, 1979;
and
3. That Respondents forthwith pay the Complainant $300 for attorney's
expenses in the litigation of this complaint.
Dated at Augusta, Maine this 24th day of January, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________ -A-
Donald W. Webber
Alternate Chairman
/s/____________________________________
Henry W. Mertens
Alternate Employer Representative
/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 our employees that:
WE WILL NOT refuse to bargain collectively with the M.S.A.D. #68 Teachers
Association, the bargaining agent for a unit of teachers in our employ, and
WE WILL NOT refuse to participate in good faith in mediation procedures
required by Section 965 of the Municipal Public Employees Labor Relations Act.
WE WILL forthwith pay the M.S.A.D. #68 Teachers Association Three Hundred
Dollars ($300.00) for attorney's expenses in the litigation of this complaint.
M.S.A.D. #68 BOARD OF DIRECTORS
By:_____________________________________
(Name)
Date ___________________________ _____________________________________
(Title)
JOINT BOARD OF DIRECTORS OF
FOXCROFT ACADEMY
By:_____________________________________
(Name)
Date _____________________________________
(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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