STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-55 ______________________________________ ) ASSOCIATED FACULTIES OF THE ) UNIVERSITY OF MAINE/Maine ) Teachers Association/National ) Education Association, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) ON MOTION TO REVOKE SUBPOENAS UNIVERSITY OF MAINE, acting ) through its representatives and ) agents the Board of Trustees, the ) Chairman of the Board of Trustees, ) the Chancellor, the Associate Vice- ) Chancellor of Employee Relations and ) Chief Negotiator, and the Negotiation ) Team, ) ) Respondent. ) ______________________________________) Associated Faculties of the University of Maine ("AFUM") filed this prohibited practice complaint with the Maine Labor Relations Board ("Board") on February 23, 1979. Respondent University of Maine ("University") filed an answer on March 15, 1979. A pre-hearing conference was held on April 3, 1979 by Chairman Edward H. Keith who issued a Pre-Hearing Conference Memorandum and Order on April 12, 1979, the contents of which are incorporated herein by reference. A hearing was held on May 29, 1979. AFUM was represented by Stephen P. Sunenblick, Esq. and the University by F. Paul Frinsko, Esq. At the hearing the University filed a written motion for an order "quashing, revoking and/or modi- fying" subpoenas issued to Samuel J. D'Amico and JoAnne Magill, dated May 23, 1979. The motion states the following grounds: 1. The subpoenas fail to bear the seal of any lawful issuing authority as required by law. 2. Service of the subpoenas was improper in that service was made by a party to this action in violation of law. 3. The subpoenas were not issued within a reasonable period in advance of the time when the evidence is requested. 4. Such materials as are public records have been available to the Complainant at all times material hereto. 5. That the Complainant has failed to advance to the Respondent the reasonable cost of producing the documents requested. 6. That the documents requested are exempt from process in this proceeding except as noted in paragraph 5 above, are privi- leged records and documents, which rights and privileges of the Respondent are protected by the laws of the State of Maine. 7. That the request for said subpoenas by the Complainant consti- tutes an abuse of process and a prohibited practice. -1- _______________________________________________________________________________________ An eighth ground was added orally at the hearing: 8. That JoAnne Magill received insufficient mileage fees. The University presented testimony and argument in support of its motion. AFUM argued in opposition. The Board denied the motion with certain conditions and read its decision into the record at the hearing. Since the hearing the Board has reconsidered the decision and now issues the following decision, which supersedes the oral decision rendered at the hearing. JURISDICTION Neither 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). DECISION I The motion on ground (1) is denied. The University refers to M.R.C.P. Rule 45. The Board, however, finds no requirement in the law that the Board have or use a seal for subpoenas issued by it, noting particularly 26 M.R.S.A. 1030(2), 5 M.R.S.A. 9060 and Rule 4.10, 12-180 CMR 4.10. The motion on ground (2) is denied. The subpoenas were served by Stephen Pulkkinen, representative of AFUM and an employee of the Maine Teachers Association ("MTA"). While AFUM is affiliated with the MTA, the MTA is not a party to this proceeding. In any event, Mr. Pulkkinen is an agent of AFUM and not a party. See 1 Field, McKusick and Wroth, Maine Civil Practice 45.2 (hereafter "Field & McKusick"). The motion on grounds (3) and (4) is denied. There was no evidence that com- pliance with the subpoenas could not reasonably have been accomplished prior to the hearing. Indeed, the number of documents to be produced may be minimal. In addi- tion, public records may be subpoenaed. The motion on ground (5) is denied on the condition that AFUM shall pay to the University the cost of producing the documents at hearing. See M.R.C.P. Rule 45(b) (2). The motion on ground (6) is denied on the condition that documents produced which the University claims are privileged shall not be provided to AFUM. Rather, the Board shall inspect the documents in camera and make such determinations in each case. Documents or portions of documents which the Board considers privileged will not be required to be produced at a hearing. Documents or portions of documents, if any, which disclose collective bargaining positions, strategy or tactics will be considered privileged. We are aware of no privilege recognized by law regarding such documents. How- ever, while the Chairman has the power under 26 M.R.S.A. 1030(2) to subpoena docu- ments "relative or pertinent to the issues presented to the board for determination," -2- _______________________________________________________________________________________ the Board does not intend to utilize this power with respect to collective bar- gaining positions, strategy or tactics. In effect, the Board intends to recog- nize a de facto privilege for such material in the interest of "promot[ing] the improvement of the relationship between public employers and their employees." 26 M.R.S.A. 1021. The University argues that AFUM cannot inquire beyond the apparent authority to negotiate of the chief negotiator for the University. We disagree. We have held that a negotiating team must be authorized by the principal to reach at least tentative agreement on mandatory subjects of bargaining. E.g., Teamsters Local 48 v. City of Augusta, MLRB No. 78-04 (1978) at page 6. Apparent authority alone is thus insufficient if the authority does not exist in fact. See M.S.A.D. No. 38 Board of Directors v. M.S.A.D. No. 38 Teachers Association, M.L.R.B. No. 76-20 (1976). Indeed, negotiators must be provided with sufficient guidelines to negotiate a contract. See Westbrook Police Unit of Local 1824 (AFSCME) v. City of Westbrook, MLRB No. 78-25 (1978). Thus, the documents as described appear relevant to the issues of the case. The University also argued that this Board would be unable to function on this case if it were to become aware of the internal collective bargaining procedures of the University. The argument implies that the Board would be prejudiced against the University by this knowledge. Under 26 M.R.S.A. 1029(3) the Board must based its actions "upon a preponder- ance of the evidence received." Documents, privileged or not, which the Board members have knowledge of, but which are not part of the evidence, are not con- sidered in the Board's decision-making process. There is no allegation that any specific Board member is incapable of maintaining this distinction. We also see nothing inherent in the structure of the Board per 26 M.R.S.A. 968(1) which would prejudice or affect the ability of the Board to perform its function with integ- rity after viewing privileged documents. Finally, the University may always utilize 5 M.R.S.A. 9063(1) to question the bias of any agency member. The argument is thus rejected. The motion on ground (7) is denied. There is no evidence of abuse or of a prohibited practice by the service of these subpoenas. The motion on ground (8) is denied. The only evidence before the Board is the mileage shown by the odometer of Ms. Magill's automobile from her home in Lucerne to the hearing on the route she chose to travel. This was admittedly not the short- est route. In addition, since this was a subpoena to produce documents which are kept at the office of the clerk (Magill) of the Board of Trustees of the University on Maine Avenue in Bangor (where she was served with the subpoena), this would be the proper point from which mileage ought to be paid to the hearing and return, not from Lucerne. Moreover, Ms. Magill was listed as a witness for the University in the Pre-Hearing Conference and Order. II We will thus order that the subpoenas be continued in effect, as conditioned herein, for the next hearing in this case to be set by the Board. Failure to -3- _______________________________________________________________________________________ comply with these subpoenas at that time, unless revoked or modified by the Board, shall be punishable as for contempt of court in accordance with 5 M.R.S.A. 9060(1)(D). In addition, the Board may disregard all related evidence offered by the University. The Board will temporarily stay further proceedings on this case and will continue such if it is served with a petition to review this decision under 5 M.R.S.A. 11001 et seq. or equivalent court proceeding within thirty days of receipt of this decision and order. ORDER 1. The motion is denied with the conditions that complainant pay to respondent the cost of producing the documents at the next hearing and that documents which the respondent claims are privileged need only be provided to the Maine Labor Relations Board for inspection in camera regarding those claims. 2. The subpoenas are continued in full force for the next hearing as modified herein. 3. Further proceedings are temporarily stayed and will be continued to be stayed if the Maine Labor Relations Board is served with a petition to review this decision under 5 M.R.S.A. 11001 et seq. or equivalent court proceeding within thirty days of receipt of this decision and order. 4. The decision on this motion read into the record on May 26, 1979 is hereby superseded. Dated at Augusta, Maine this 14th day of June, 1979. MAINE LABOR RELATIONS BOARD /s/________________________________________ Edward H. Keith Chairman /s/________________________________________ Michael Schoonjans Employee Representative /s/________________________________________ Paul D. Emery Employer Representative -4- _______________________________________________________________________________________