STATE or MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-42
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)
M.S.A.D. NO. 43 TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. )
)
M.S.A.D. NO. 43 BOARD OF DIRECTORS, ) DECISION AND ORDER
HARLAN LIBBY, CHAIRPERSON, )
)
and )
)
RONALD W. SMITH, SUPERINTENDENT )
OF SCHOOLS, )
)
Respondents. )
______________________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed December 12, 1978 by Richard J. Plante,
President of the M.S.A.D. No. 43 Teachers Association ("Teachers Association").
Respondents' answer to the complaint and a motion to dismiss were filed
December 27, 1978 by Annalee Z. Rosenblatt, representative for the M.S.A.D.
No. 43 Board of Directors ("Board of Directors") and Ronald W. Smith.
A pre-hearing conference on the matter was held in Augusta, Maine on
January 9, 1979, Alternate Chairman Donald W. Webber presiding. On January 15,
1979, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.
The parties agreed at the pre-hearing conference that since the complaint
and answer raised no factual issues requiring a hearing, the case would be
submitted to the Board on Briefs. The briefs were all filed by March 1, 1979,
and the Board proceeded to deliberate over the case at a conference held in
Augusta, Maine on April 10, 1979, Chairman Edward H. Keith presiding, with
Employee Representative Michael Schoonjans and Alternate Employer
Representative Kenneth T. Winters.
JURISDICTION
Neither party has challenged the Jurisdiction of the Maine Labor
Relations Board in this matter, and we conclude that this Board has
Jurisdiction to hear and render a decision in this case as provided in
26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the Pre-Hearing Conference Memorandum and Order, the
Exhibits submitted at the January 9, 1979 pre-hearing conference, and the
pleadings, the
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Board finds that:
1. Complainant M.S.A.D. No. 43 Teachers Association is the recognized
bargaining agent as defined in 26 M.R.S.A. 962(2) for a bargaining
unit of full-time certified teachers employed by the M.S.A.D. No. 43
Board of Directors. Respondents M.S.A.D. No. 43 Board of Directors
and Ronald W. Smith, the Superintendent of Schools for M.S.A.D. No.
43, are public employers within the meaning of 26 M.R.S.A. 962(7).
2. On or about November 15, 1978, the President of the Teachers Association
hand delivered a letter to the Superintendent of Schools requesting,
pursuant to 26 M.R.S.A. 965(1)(B), a meetinq within ten days for the
purpose of meeting and consulting over a change in educational policy
regarding open house at the schools. No request to meet for negotia-
tions over the change in policy was made.
3. By letter dated November 16, 1978 to the President of the Teachers Asso-
ciation, the Superintendent of Schools stated that the request to meet
and consult had not been properly filed. The Board of Directors did not
meet with the Teachers Association within ten days of receipt of the
request to meet and consult.
4. On or about December 15, 1978, the Superintendent of Schools sent a
letter to the President of the Teachers Association requesting a meeting
within 10 days for the purpose of meeting and consulting over the change
in the open house policy. The change in policy had not yet been imple-
mented. The parties met and consulted over the change in policy on
January 8, 1979.
DECISION
Complainant has charged that Respondents violated 26 M.R.S.A. 964(1)(E)
by failing to meet and consult over a change in educational policy within ten
days of receipt of a request to do so. Respondents' answer that the ten day
notice provision in 26 M.R.S.A. 965(1)(B) does not apply to a request to
meet and consult pursuant to 26 M.R.S.A. 965(1)(C); that Complainant's case
is moot because the parties met and consulted over the change in policy on
January 8, 1979; that Respondents are not guilty of bad faith bargaining; that
Respondents were not obligated to meet and consult prior to implementation of
the change in policy; and that mitigating circumstances caused Respondents'
delay in holding the "meet and consult" session.
We find, as more fully discussed below, that Respondents violated 26
M.R.S.A. 964(1)(E) by failing to meet, as required by 26 M.R.S.A. 965(1)(B)
and (C), within ten days of receipt of the request to meet and consult over
the change in open house policy. We will order a remedy designed to effectuate
the policies of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq. (the "Act").
Both parties argue at length in their briefs over the issue whether the
ten day notice provision in Section 965(1)(B) of the Act applies to a request
to meet and consult pursuant to Section 965(1)(C). The answer to this question
is found in M.S.A.D. No. 44 Administrators Association v. M.S.A.D. No. 44 Board
of Directors, M.L.R.B. No. 77-27 (1977), where we held at p. 3:
"The obligation to meet and consult contained in 26 M.R.S.A.
Section 965(1)(C) is co-equal with the obligation to negotiate
in good faith also contained in that section and the procedural
requirements contained in that paragraph, e.g. meet at reason-
able times and ten day notice, apply equally to the obligation
to meet and consult."
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Respondents urge that our holding in M.S.A.D. No. 44 Administrators
Association should be reconsidered. Upon reconsideration, we find that we
must affirm our holding quoted above. Section 965(1)(B) provides that the
public employer and bargaining agent are mutually obligated to meet within
ten days after receipt of written notice from the other party requesting a
meeting for "collective bargaining purposes." Section 965(1)(C) states that
"collective bargaining" means the mutual obligation to confer and negotiate in
good faith with respect to wages, hours, working conditions and contract
grievance arbitration, as well as the mutual obligation to meet and consult
with respect to educational policy. It is absolutely clear from the language
of Section 965(1)(B) and (C) that the Legislature intended the ten day notice
provision to apply to requests to meet and consult as well as to requests to
confer and negotiate. We would commit error were we to hold otherwise.
We also cannot agree that this case is mooted by the fact that the
parties met and consulted over the change in open house policy on January 8,
1979. The fact remains that the Board of Directors did not meet and consult
as required by 26 M.R.S.A. 965(1)(B) and (C) within ten days of receipt of
the November 15, 1978 request. We held in Teamsters Local 48 v. City of
Bangor (Interim Decision and Order), M.L,R.B. No. 79-29 (1979), that a
complaint alleging a bad faith bargaining violation of 964(l)(E) is not
rendered moot by the subsequent execution of a collective bargaining agreement.
The basis of our holding in City of Bangor was that the function of the Board
is not to oversee private disputes, but is instead the protection of public
rights under the Act. These rights are not protected, and the effect of any
prohibited practices expunged, merely because the parties have effectuated
some form of private settlement of their dispute. Additionally, the public
and the charging party are entitled to the protection of future rights by the
requirement of continued compliance which a cease and desist order provides.
For all of these reasons, the complaint in this case is not mooted merely
because the parties eventually met and consulted, subsequent to expiration of
the ten day period, over the change in open house policy.
Respondents' argument that the record does not show that Respondents
acted in bad faith by not meeting and consulting within ten days of receipt of
the request similarly is without merit. In 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)
we held that the obligation under Section 965(1)(E) to participate in good
faith in mediation procedures (p. 5):
". . . first requires participation and second requires such
in good faith. The first part of the duty is plainly sus-
ceptible to violation without regard to motive or intent:
it requires that parties must participate . . ."
The same principle applies in this case. The duty under Section 965(1)(B)
and (C) to meet and consult in good faith first requires meeting and consulting
and second requires meeting and consulting in good faith. Respondents
committed a per se violation of Section 964(1)(E) by not meeting and consulting.
Had they met and consulted, then the question whether they did so in good
faith would become relevant. See N.L.R.B. v. Katz, 369 U.S. 736 (1962).
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Respondents' argument that they were not required to meet and consult
prior to implementation of the change in policy also fails. Section 965(1)(C)
flatly states that the public employer is obligated to meet and consult with
respect to educational policies; there is no suggestion that this obligation
arises only after the policy is implemented. If Respondents' argument were
the law, then Section 965(1)(C) would be emasculated, since in many cases
there would be very little to meet and consult about once the policy was
implemented. We conclude that Respondents were obligated to meet and consult
once they received Complainant's request.
Finally, while Respondents argue in their brief that "mitigating circum-
stances" excused Respondents' delay in holding the meet and consult session, we
note that the record in this case is entirely devoid of any evidence of such
mitigating circumstances. Because we must base our decisions and orders on a
preponderance of the evidence received in the case, 26 M.R.S.A, 968(5)(C),
we would commit legal error by relying upon extra-record "facts." We
consequently cannot find that Respondents' delay in holding the meet and
consult session was caused or excused by mitigating circumstances.
In summary, we conclude that Respondents committed a per se violation of
Section 964(1)(E) by failing to meet within ten days of receipt of
Complainant's request to meet and consult. The ten day notice provision in
Section 965(1)(B) applies to requests to meet and consult as well as requests
to negotiate; the case is not moot because the parties eventually met and
consulted; the question of Respondents' bad faith is irrelevant since
Respondents did not meet; Respondents were obligated to meet and consult prior
to implementation of the change in policy; and the record contains no evidence
of mitigating circumstances. In order to effectuate the policies of the Act
in accordance with our authority in Section 968(5)(C), we will order
Respondents to cease and desist from engaging in the prohibited practice.
ORDER
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 968, it is hereby ORDERED.
That Respondents M.S.A.D. No. 43 Board of Directors and
Ronald W. Smith, and their representatives and agents,
cease and desist from refusing to bargain collectively
with the M.S.A.D. No. 43 Teachers Association by failing
to meet within ten days after receipt of a written notice
requesting a meeting for collective bargaining purposes,
where the parties have not otherwise agreed in a prior
written contract.
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Dated at Augusta, Maine this 1st day of May, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________
Edward H. Keith
Chairman
/s/____________________________
Michael Schoonjans
Employee Representative
/s/____________________________
Kenneth T. Winters
Alternate Employer Representative
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