STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-35 ____________________________________ ) SABATTUS TEACHERS ASSOCIATION, ) ) Complainant, ) ) v. ) ) SABATTUS SCHOOL COMMITTEE, ) DECISION AND ORDER RONALD LABERGE, Chairperson, ) and ERNEST W. HUGHES, Superintendent) of Schools, ) ) Respondents. ) ____________________________________) The Sabattus Teachers Association ("Association") filed this prohibited practice complaint on November 8, 1978. The Sabattus School Committee, Ronald Laberge, and Ernest W. Hughes ("School Committee") filed a response and motion to dismiss on November 29, 1978. A pre-hearing conference was held on March 13, 1979 by Alternate Chairman Donald W. Webber, who issued a Pre-Hearing Conference Memorandum and Order on March 20, 1979, the contents of which are incorporated herein by reference. The matter was heard by the Maine Labor Relations Board ("Board") on May 1, 1979, Chairman Edward Keith presiding, with Michael Schoonjans, Employee Representative, and Paul D. Emery, Employer Representative. The Association was represented by J. Donald Belleville and the Committee by Anthony J. Peverada, Jr. At the start of the hearing, the Association moved to amend the complaint to include a separately-arising alleged prohibited practice. The motion was denied since it could be filed as a separate complaint. At the conclusion of the hearing the parties waived argument and briefs and the Board proceeded to deliberate over the case. JURISDICTION No party has challenged the jurisdiction of the Board and we conclude that the Board may hear and render a decision in this case as provided in 26 M.R.S.A. 968(5). FINDINGS OF FACT From the entire record in this case, the contentions of the parties, and the observation of the witnesses and their demeanor, the Board finds that: 1. Complainant Association is the duly recognized bargaining agent for the entire unit of certifi- cated teacher employees of the Sabattus School Committee, excluding the Superintendent and the Principal. 26 M.R.S.A. 962(2). Respondent School Committee is the public employer of the teachers in this unit. 26 M.R.S.A. 962(7). -1- 2. The Association and the School Committee were negotiating a collective bargaining agreement for the 1978-79 school year during a period prior to its execution on November 1, 1978. The Associa- tion negotiating team included chief negotiator Rosemary Foster (the Association President), Judith Doucette and others. Foster had been on the negotiating team for 3 years; this was her first year as chief negotiator. The School Com- mittee negotiating team included Superintendent Hughes, after his employment beginning July 1, 1978, as chief negotiator. 3. An oral agreement was reached at a mediation ses- sion on October 17, 1978. The mediator reduced the agreement to writing and mailed it to the parties for their signatures. One pertinent sec- tion of the mediator's letter stated "5. Professional Management Periods The administration and the teachers will agree in writing to sit and talk about this issue as a policy matter within an agreed- to time schedule." 4. On October 31, 1978 President Foster and team member Doucette met with Superintendent Hughes in his office by appointment arranged by Foster. Among other things Foster and Doucette intended to present to Hughes a written agreement for signa- ture which would satisfy them with respect to the agreement reached through the mediator regarding professional management periods. Foster and Doucette wanted the agreement to be in writing prior to the meeting of the School Committee on the following evening, November 1, 1978, when the entire collective bargaining agreement was likely to be ratified by both parties and then executed. The document proposed by the Association stated: "A mutually agreeable time will be designated for the superintendent, principal, and negoti- ating team to meet to discuss management peri- ods. This will take place as soon as possible after the signing of the master contract for the 1978 1979 school year." Signature lines for Hughes and Foster were included. 5. Superintendent Hughes would not sign the proposed document during the course of the meeting. He was willing to sign some agreement but not the one proposed by Foster because the proposal appeared to be limited to the "negotiating team," to the exclusion of "teachers." 6. The School Committee met the following evening, November 1, 1978, but would not ratify the con- tract without an insubstantial language change. Hughes had told Foster in his office that he want- ed this change but that he did not want to bother to try to change it. The School Committee, howev- er, wanted the change. Consequently, the Associa- tion had to vote again to ratify the slightly altered contract; this was done and the contract was executed. 7. Foster's, Doucette's and Hughes's versions of the October 31, 1978 meeting are each somewhat differ- ent although they are quite compatible in their major respects. However, Foster and Doucette on the one hand, and Hughes on the other hand, drew different conclusions and made different charac- terizations of what was said during the meeting. Foster portrayed the meeting as if she merely explained her position but that Hughes got angry, was pounding the table, and was making "personal" attacks against her before she became antagonis- tic. Hughes, in contrast, portrayed the meeting as if he simply explained his position, but that then Foster became obviously -2- annoyed and started pressuring him. It was at that point, he explained, that he began criticiz- ing Foster's performance and effectiveness as a chief negotiator, in a slightly raised voice. He did not challenge her performance as a teacher. 8. Doucette, who did not speak at the meeting, char- acterized the discussion as an "argument" twice. She did not indicate that Hughes was pounding on the table and she revealed that she clearly under- stood that Hughes's criticism of Foster was di- rected solely at her in her capacity as chief negotiator, that it was, in Hughes's terms, "part of the territory." We find this testimony reli- able. Foster also understood this. She testified that Hughes agreed with her that Hughes would deal with any chief negotiator in the same fashion. 9. As the meeting concluded, there was small talk and then the two teachers left. There is contrasting testimony over whether or not Foster started to cry in the outer offices of the Superintendent's area. She may have cried; two office workers who observed her leave did not notice it. In any event, Foster apparently cried outside the build- ing. She then drove herself to a friend's house where she cried uncontrollably which was for her out of character. 10. At the School Committee meeting on November 1, 1978, the Committee, not Hughes, decided to make the minor language change referred to above. When the altered contract was presented to Foster, she balked at signing it. She testified that Hughes then said: "These are the things that I find bothersome." 11. Both Foster and Doucette testified that they and some other teachers were "reluctant" to return to Hughes's office. 12. There was also testimony that the Association was having great difficulty filling vacant offices; the chief negotiator slot was the only vacancy identified. The vacancy, however, is not a cur- rent one: a Mr. Witheroff is the current chief negotiator for the Association for the 1979-80 contract. The vacancy therefore relates to the 1980-81 contract, for which bargaining is not imminent. 13. Doucette and Foster thought it was unreasonable for Hughes not to sign the proposed agreement re- garding management periods when presented to him in his office. Doucette thought that a written agreement on this issue had to be reached before ratification of the collective bargaining agree- ment. She testified that if her understanding was not correct, then she would not find it unreason- able for Hughes to have refused to execute the proposed letter. 14. All witnesses stated that Hughes had made no threats or any anti-union comments at any time. DISCUSSION The Association charges that Superintendent Hughes's conduct on October 31 was belittling, insulting and demeaning and that it reduced Chief Negotiator Foster to crying. It also charges that Hughes continued such harassment of Foster at the School Commit- tee meeting the next night. Thus, it is claimed, the School Committee has violated 26 M.R.S.A. 964(1)(A) by interfering and coercing employees in their protected rights and 26 M.R.S.A. 964(1)(C) by interfering with the existence or administration of the Association. The School Committee denied these allegations and moved to dismiss the complaint for failure to state a claim as a matter of law. -3- We conclude that the motion to dismiss is denied. The complaint is also dismissed on the merits. The motion is dismissed because it is conceivable that on some state of facts conduct by a chief negotiator that insults, demeans, and harasses the counterpart negotiator and team could violate the Act. It is certainly not established in this case, however. There is no evidence that a desire to discourage protected activity was a motivating factor in Superintendent Hughes's conduct. While proof of an unlawful motive is not critical to a violation of 964(1)(A), in its absence, the test is then whether the conduct, "it may reasonably be said, tends to inter- fere with the free exercise of employee rights." See, Teamsters Local Union No. 48 v. Town of Oakland, MLRB No. 78-30 (1978) at page 3. While it is plain that Foster and Doucette felt insulted and harassed, we cannot agree that Hughes's conduct could reasonably be said to interfere with the bargaining rights of the teachers. First, we conclude that Foster and Doucette were too sensi- tive to criticism. Negotiations are tension-filled situations by nature. In this context, the perception of the collective bar- gaining adversary as unreasonable is not uncommon. In addition, criticism of the adversary's personal bargaining style, although perhaps inartful, is also not rare. Thus, an even temper and a thick skin are probably practical prerequisites to successful negotiating. Second, it is clear that Foster and Doucette thought from the outset that Hughes's conduct at the October 31 meeting regarding the letter was unreasonable. We disagree. His posi- tion concerning the exclusion of "teachers" from the proposed discussion was a legitimate one. Moreover, we see no requirement that a written agreement had to be reached on this issue prior to contract ratification.[fn]1 Lastly, even if we were to agree that Hughes's conduct was insulting and demeaning as the Association claims it was, we would not necessarily conclude that it was a violation of the Act given some of the other facts of this case. For example, al- though Foster and Hughes may have had poor personal chemistry, we must note that the management period issue was subsequently resolved and that the Association's chief negotiator on the successful contract is having no similar difficulties with Super- intendent Hughes. The conduct of the Superintendent on November 1, 1978 cannot be considered harassment and also does not violate the Act. A violation of 964(1)(C), the other claim of the Associa- tion, requires a direct attempt to interfere with the Association's formation, e.g., Pine Tree Council 74, AFSCME v. City Manager of Augusta, PELRB No. 73-09 (1973) (interference by employer with organizational activities of employees), its existence, ______________ 1 The public employer of course has the duty to meet and consult with regard to nonmandatory subjects of bargaining which are matters of educational policy. 26 M.R.S.A. 965(1)(C). -4- e.g., Local 1458, Council 74 (AFSCME) v. City Council of Augusta, PELRB No. 74-09 (1974) (employer assisting employee file decerti- fication petition), or its administration, e.g., Kent Corp., 212 NLRB No. 88, 87 LRRM 1730 (1974) (employer attempted to influence selection of employee representatives). The evidence establishes no attempt to influence any of the Association's functions or administration. Rather, it establish- es only that there is a prospective vacancy in the chief negotia- tor position for the 1980-81 collective bargaining agreement. The reluctance of some teachers to visit the Superintendent's office was not concretely connected to the administration or functioning of the Association other than perhaps as an explana- tion for the prospective chief negotiator vacancy. This does not amount to employer interference with the administration of the Association, however. It is not a direct effect, there is no improper motive established, and the effect is only speculative in any event. We therefore conclude that the complaint must be dismissed. SO ORDERED. Dated at Augusta, Maine, this 21st day of June, 1979. MAINE LABOR RELATIONS BOARD /s/________________________ Edward H. Keith Chairman /s/________________________ Michael Schoonjans Employee Representative /s/________________________ Paul D. Emery Employer Representative -5-