STATE or MAINE MAINE LABOR RELATIONS BOARD Case No. 79-42 ______________________________________ ) 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 -1- 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." -2- 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). -3- 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. -4- 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 -5-