STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-55
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)
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. )
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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.
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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,"
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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
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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
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