STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 8O-05
________________________________
)
WINTHROP EDUCATORS ASSOCIATION )
and PAULA M. GAUDET, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
WINTHROP SCHOOL COMMITTEE, )
THOMAS R. RUDDER, Principal, )
and JAMES J. VICKERSON, JR., )
Superintendent of Winthrop, )
)
Respondents. )
________________________________)
The Complainants, Winthrop Educators Association (11WEA11) and Paula M.
Gaudet, past President of the WEA, filed this prohibited practice complaint
on September 12, 1979. The Respondents, Winthrop School Committee ("WSC"),
Thomas R. Rudder, and James J. Vickerson, Jr., filed a response on October 1,
1979.
A pre-hearing conference was held on October 15, 1979, by Alternate
Chairman Donald W. Webber after which he issued a Pre-Hearing Conference
Memorandum and Order dated October 22, 1979, the contents of which are
incorporated herein by reference.
The matter was heard by the Maine Labor Relations Board ("Board") on
November 14, 1979, Alternate Chairman Gary F. Thorne presiding, with Employee
Representative Wallace J. Legge and Employer Representative Don R. Ziegenbein.
The WEA was represented by F. Stewart Kinley, Maine Teachers Association;
the Respondents by Nicholas S. Nadzo, Esq. At the start of the hearing
respondents' numerous motions were orally argued and, after deliberations, a
tentative decision was announced by Alternate Chairman Thorne, after which
the parties presented the case on its merits.
At the start of the hearing the Board also permitted WEA to amend the
complaint to allege a violation of 26 M.R.S.A. 964(1)(E). As directed by
the Board, an amended complaint was filed on November 28, 1979. A response
was filed on December 11, 1979. The parties submitted post-hearing briefs
and reply briefs. A final decision on the motions is included In the
discussion below.
JURISDICTION
The jurisdiction of the Board lies In Section 968(5) of the Municipal
Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. 968(5).
FINDINGS OF FACT
1. The WEA is the bargaining agent for the certificated professional
teachers in the employ of the WSC, the public employer. See 26
M.R.S.A. 962(2); 962(7). Superintendent Vickerson and Principal
Rudder are also public employers because they act on behalf of the
WSC. 26 M.R.S.A. 962(7). Paula M. Gaudet is a public employee
and was president of the WEA during the time of the events complained
of. 26 M.R.S.A. 962(6). F. Stewart Kinley is a representative of
WEA and a bargaining agent. 26 M.R.S.A. 962(2).
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2. The WEA and WSC had a collective bargaining agreement in
effect for the 1978-79 school year. Negotiations on a
successor commenced In February 1979. Vickerson and
Rudder together constituted the negotiating team for the
WSC. At some point during the negotiations process, a
difference of opinion formed regarding whether Vickerson
had contradicted himself regarding a reduction in the
art program.
3. On April 12th, the WEA prepared a full-page flyer on a
form with the printed heading: "WEA Negotiations . . .
News . . ." The flyer was headlined with "Proposed:
RIF's in Winthrop. Are there more to come? The body
of the flyer set forth the WEA leadership's view of the
event and the theoretically contradicting statements
and ended with the question: "What does this do to their
credibility?"
4. This flyer was placed in the mailboxes or mail slots of
each of the WEA members at each of the three school build-
ings in the district by the WEA "building representatives."
(These boxes and slots are used for mail and all other
internal communication.) One member brought a copy of the
flyer to Rudder, Principal of one of the three schools.
Rudder was upset by the content of the newsletter; he felt
it was an inflammatory communication because it questioned
his and Vickerson's credibility and because of the use of
the term "RIF." Rudder interpreted the latter term as
slang for some kind of fracas; he had never heard it used
as an acronym for "reduction in force," a common labor
relations phrase.
5. The next day, April l3th, Rudder drafted a letter to WEA
President Gaudet in which he stated that the flyer was
placed In the mailboxes in direct violation of the contract
and took the position as building principal that the mail-
boxes could not be used for these newsletters. The entire
body of the letter is as follows:
The notice that was placed in the teachers' mail-
boxes on April 12, 1979 is in direct violation of
Article IX, Section 2. First, the notices are not
to be placed in the mailbox but posted on the bul-
letin board in the teachers' room. Second, the
notice is not signed by an authorized representative
of the association. Third, the announcement is
certainly inflammatory in nature and intent.
My position as building principal is that teachers'
mailboxes are not to be used but that the specified
place be used and the announcements be confined to
the language expressed in the teacher contract -
school committee contract.
Rudder had consulted with Vickerson after drafting but prior
to mailing the letter. Copies of the letter were sent to
Vickerson, a WEA building representative and others.
6. WEA building representatives who distribute WEA communications
have not utilized the mailboxes at Rudder's school since that
time because of this letter. They have arranged direct delivery
of all items. The use of the mailboxes at the other two schools,
however, was not and has not been objected to.
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7. Article IX, "Association Activity on School Property"
provides:
"Section 1.
Any discussions among teachers concerning Association
matters on School Committee property must take place
while all of the teachers involved in such discussion
are on break or other free non-working time, and not in
the presence of students.
Section 2.
Association notices may be posted on school bulletin
boards located in the teachers' room in the building.
(a) if the notice is signed in the original hand
or facsimile by an authorized representative
of the Association, and
(b) if the content of the notice is limited to
announcement of recreational or social activi-
ties, or announcement of elections, appoint-
ments, and results of elections; or announce-
ments of meetings; or professional matters.
Any such notices shall be limited to presenting factual
data and shall in no event contain any inflammatory
language or intent."
8. Bulletin boards are also used by WEA at the schools. However,
not only does Article IX not purport to limit activity of the
WEA to that set forth in the two sections, but also no other
types of activity including the WEA's use of the mailboxes
have ever been discussed in negotiations.
9. The practice has been for at least five years that the WEA has
used the school mailboxes and slots for a variety of purposes,
e.g., meeting announcements, agendas, insurance information,
minutes, questionnaires, salary comparisons, social events, etc.
Negotiations newsletters were distributed in this fashion twice
in 1979 before the newsletter that Rudder objected to was dis-
tributed.
1O. The principals and superintendent were aware of this practice
of using the mailboxes for this wide variety of communications
purposes. At no time prior to the Rudder letter had the employer
ever objected to the use of the mailboxes by the WEA for any pur-
pose. No screening or approval was ever required prior to usage.
Article IX 2 standards were never suggested as being applicable.
In short, the employer had never expressed any concern about
either the use of the mailboxes by the WEA or the content of the
newsletters that there placed in members' boxes.
11. In contrast, while employees or people within the system have had
cart blanche to use the internal mail system without controls,
external users were not permitted access to the system unless
prior approval was obtained as a matter of school policy.
12. Kinley wrote to Rudder on April 26, 1979, asking him (1) to
rescind his letter of April 13th and acknowledge the WEA's right
to continue to use the mailboxes, and (2) to arrange a meeting on
the subject between Kinley, Gaudet, Rudder and Vickerson. Kinley
suggested two meeting times, on May 8th or 10th. Rudder did not
reply. On May 17th Vickerson wrote to Kinley and suggested that
they let the matter ride without bringing it to a confrontation.
Vickerson stated in the letter that he and Kinley could discuss
the problem when they met on May 23rd on another matter. There is
no evidence of further specific discussions of the problem.
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13. The WEA and WSC have in all other respects bargained in
good faith regarding the successor agreement, including
a side agreement in an area of nonmandatory bargaining
raised by the WEA. The successor agreement for the 1979-
80 and 1980-81 school years was ratified on June 20, 1979.
DISCUSSION
I. Motions
1. Failure to serve.
Service was made physically only on Rudder. Although the WSC and Superin-
tendent Vickerson claim no lack of notice or prejudice from failure to serve
them, they nonetheless move to dismiss the complaint as against them. The
Motions are denied.
Rudder and Vickerson participated together as the negotiations team for
the WSC and we conclude that Rudder is an agent and employee of Vickerson and
the WSC. The service on Rudder was therefore effective as against all three.
In addition, there was no lack of notice of the filing of the complaint and
no prejudice was claimed.
2. Signature defects.
The complaint was signed by Paula M. Gaudet. However, contrary to Rule
4.02, 12-180 CMR 4.02, her signature was not duly acknowledged by a Notary
Public or Justice of the Peace and the complaint does not contain a declara-
tion under penalty of perjury that its contents are true and correct to the
best of complainant's knowledge and belief. The complaint was also signed by
F. Stewart Kinley on behalf of the WEA, although the WEA was omitted from the
caption of the complaint. Kinley also made oath before a notary public that
the contents of the complaint are true and correct to the best of his knowl-
edge and belief. This was indicated on the complaint.
The motion to dismiss for failure to comply with Rule 4.02 is denied.
The Rule is satisfied by the signature and oath of Kinley. The perhaps inart-
ful styling of the caption will not be used by the Board to invalidate a
complaint. Moreover, to dismiss this complaint on the proffered grounds would
violate notions of justice and fair play.
In order to resolve technical and harmless inconsistencies in the com-
plaint caption, however, the Board issued a letter directing that an amended
complaint be submitted with a restyled caption and a new signature page.
This letter, received by both parties on November 21, 1979, is incorporated
herein by reference.
3. Surplus signatures.
The complaint contained the additional signatures of three unidentified
people. Respondents move to strike as surplusage these signatures as well as
the signature of Kinley. No harm was alleged in connection with this
admittedly technical motion.
The motion is denied. It is a waste of the Board's time and a drag on the
administrative process to raise such trival matters.
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4. Mootness and no case or controversy.
Respondents argue that the complaint should be dismissed because a collec-
tive bargaining agreement was executed subsequently to the events complained
of. The motion is denied for the reasons stated in Teamsters Local 48 v. City
of Bangor, MLRB No. 79-29 (March 2, 1979) (interim decision). See also,
M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No. 43 Board of Directors,
MLRB No. 79-42 (May 1, 1979). It is also not at all clear that the right to
use the mail system by WEA is conceded by the WSC. It had ample opportunity
to do so during this proceeding and did not.
5. Failure to state a claim.
The gravamen of this motion addresses the legal sufficiency of the com-
plaint. The Board is not prone to grant motions to dismiss unless the entire
complaint is (1) completely deficient in identifying the general events
complained of or (2) obviously deficient as a matter of law. Neither is the
case here, therefore the motion is denied.
Because of the Board's structure and the statutory framework within which
it must operate, a very liberal approach will usually be taken regarding
complaints. The Board will, however, always entertain motions seeking relief
from potential harm because of an unintelligible complaint.
II. The merits.
The WEA maintains that the Respondents have violated Sections 964(1)(A),
(C) and (E) of the Act respectively by interfering with and coercing WEA
members in the exercise of their Section 963 rights to participate in the
collective bargaining activities of the WEA, by interfering with the normal
activities of the WEA in communicating with its members, and by unilaterally
terminating WEA's right to use the mailboxes.
The Respondents maintain with regard to Section 964(1)(A) that the WEA
had no right to use the mailboxes in the first instance and therefore it is
permissible for the employer to prohibit its use, that the employer may
lawfully prohibit the distribution of union literature in working areas, that
the WEA has not been significantly affected since alternative methods of
distribution have been utilized, and that this is only an isolated instance
that does not warrant a finding of improper motive, particularly in light of
the minimal impact and the May 17th offer of Vickerson to discuss the matter.
Regarding Section 964(1)(C) Respondents argue that there has been no attempt
to interfere with the existence or administration of the WEA and that the WEA
has not been impeded or frustrated.
Finally, Respondents argue with respect to Section 964(1)(E) that no
actual change has been made and that in any event a mere difference of opinion
regarding a contractual interpretation should not be held to constitute a
violation of the duty to bargain collectively.
We conclude that Respondents have violated 26 M.R.S.A. 964(1)(E) and
964(1)(A). The complaint under 26 M.R.S.A. 964(1)(C) is dismissed.
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1. Interference with protected activity.
Section 964(1)(A) prohibits conduct which is intended to interfere with
the free exercise of protected activity or, which it may reasonably be said,
tends to interfere with the free exercise of this protected activity. See
Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 (Aug. 24, 1978). A good
faith but mistaken belief as to the employees' activity is not a defense to a
resultant interference.
The first question is whether the activity is protected; Respondents
argue that it is not. It clearly is. The primary point, although not
necessarily conclusive here, is that communications between the negotiations
team and the members is by nature the most fundamental form of protected
activity. One could argue, however, that the WEA bargained away the right to
do this through the school mail system in its collective bargaining agreement
in Article IX (see footnote 2, below), or that the activity loses its pro-
tected nature in the balance against the employer's right to control its
operations and maintain discipline, see, eg., Lewiston Police Department,
IBPO Local 545 v. City of Lewiston, MLRB No. 79-64 (Dec. 18, 1979).
The contract argument, however, does not withstand scrutiny since it is
plain that the right to use the mailboxes has not ever been even mentioned
between the parties. In addition, the terms of the contract simply do not
cover use of the mailboxes. Finally, the WEA has enjoyed the use of the
mailboxes for at least five years without objection.[fn]1 Thus, the contract
simply cannot be said to deny the use of the mailboxes.
The second possibility, the loss of protected status, would exist where
a slight interference was the result of an employer effort to control its
operation or maintain discipline as in the City of Lewiston case, above, where
the employee activity was a clear violation of the disciplinary regulations.
No employer concern was raised here, however. We also do not view the inter-
ference as slight, given the fundamental nature of the activity and the
doubtlessly time-consuming nature of alternatives.
Respondents cite Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), for the
proposition that an employer may prohibit the distribution of literature in
working areas. This case is inapposite for a number of reasons. First, it
deals with the area of organizing rights, i.e., union solicitation of member-
ship, as opposed to collective bargaining rights. Second, it grounds the
employer's right to prohibit distribution in a concern for litter or a concern
for a loss of working time; neither are alleged here. Third, it suggests that
the right to solicit should be abridged only to the minimum extent necessary
to eliminate conflict with the employer concerns; we find no legitimate
employer concerns here. Finally,
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1 Although the contract covers bulletin boards, entirely different considera-
tions are involved, primarily the important fact they they are generally
available to the public, including students. It would not be logical to
assume therefore, that the same restrictions could or should apply to private
communications between members of the WEA through the school communication
system.
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the solicitation prohibition cases concern the fact of distribution of
materials, not the content of the materials as raised by Principal Rudder.
It is plain that the letter from Rudder is directed at one and only one
thing, the content of the communications. If his ire had not been aroused,
he would not have alleged a contract violation. Thus, we conclude that his
interest in the content of the communication was unreasonable. The newsletter
was a private and privileged communication between WEA members only, concern-
ing vital member collective bargaining interests.
Rudder's ill-conceived reaction was based partly on his improper inter-
pretation of the term "RIF." Moreover, his letter was clearly a retaliation
to the content of the newsletter and a violation of Section 964(1)(A) as it
tended to interfere with protected activity.
The argument that the letter was merely an opinion that had no effect on
the WEA must fail. The letter in effect prohibits the use of the mailboxes
for all but bulletin board notice type purposes in Rudder's school building.
Rudder is the building principal, and it is clear that he had the authority
to do so. Moreover, Vickerson in essence backed him up by permitting the
prohibition to stand despite strong objection by WEA and by failing to issue
the requested decision. In short, the WEA is entitled to a declaration from
the Respondents that will settle the right of the WEA to use the mailboxes for
communications to members without regard to content.
The claim that this is only one incident does not avoid the violation in
this case. Here the Respondents have adhered to the propriety of their action
to deny the use of the mailboxes as a matter of right. Thus, although
Respondents have argued that the degree of interference is slight (it is
therefore ironic that the matter was not settled amicably), as long as the
future use of the mailboxes by the WEA without regard to content of the
communication is left vague, the "isolated" incident continues to control, a
situation for which we see the need to clarify by a remedy.
2. Dominating or interfering with the existence or administration of
the WEA.
This section Is designed to protect against Interference aimed at the
labor organization as an entity. See Sabattus Teachers Association v.
Sabattus School Committee, MLRB No. 79-35 (June 21, 1979). In viewing the
historical development of Section 8(a)(2) of the Labor Management Relations
Act, 29 U.S.C. 158(a)(2), the model for Section 964(1)(C), however, it is
clear that the type of interference that the section contemplates is inter-
ference in the nature of support or control of the union by the employer.
In essence, the evil which this section seeks to avoid is the employer,
because of his assistance or support, obtaining such a degree of control or
influence over the labor organization that he could be said to "sit on both
sides of the bargaining table." NLRB v. Powers Regulator Co., 355 F.2d 506,
508 (7th Cir. 1966). Thus, the terms "interference" and "support" can be
used interchangeably. See, e.g., Federal Mogul Corp. v. NLRB,
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394 F.2d 915, 917 (6th Cir. 1968). Similarly, where "interference" would
indicate a limited degree of control or influence by the employer,
"domination" will be found where the degree of control by the employer is
more pervasive. See Hershey Metal Products Co., 76 N.L.R.B. 695, 21 LRRM
1237 (1948); Carpenter Steel Co., 76 N.L.R.B. 670, 21 LRRM 1232 (1948).
Although we believe that Rudder attempted to interfere with protected
activities and also unilaterally changed a working condition and will remedy
such violations, we do not see the conduct as a violation of Section 964(1)
(C). The latter should be reserved for more subtle cases of support,
involvement, and control of the organization by the employer.
3. Change of working conditions.
The rule against making unilateral changes in mandatory subjects of
bargaining per Section 965(1)(C) is well settled. See, e.g., State of Maine
v. M.L.R.B., CV-78-484, Kennebec Super. Ct. (Aug. 7, 1979) appeal docketed,
Maine Sup. Jud. Ct., L.D. No. Ken-79-30 (Oct. 19, 1979). We find that such a
change has been made in this case and therefore conclude that Rudder and
Vickerson have violated Section 964(1)(E).
There is no question but that the letter of Rudder was unilateral action.
The Respondents have argued to some extent, however, that the letter was not a
change; that it was merely a statement of position or opinion by Rudder. As
we discussed in Part II, 1., above, however, we disagree since a straight-
forward reading of his letter would lead one to conclude that future use of
the mailboxes in Rudder's building for this type of newsletter was prohibited,
since this is how it was interpreted by the building representatives and by
the WEA, and since neither Vickerson nor Rudder have attempted to clarify the
situation. We also conclude that the use of the mailboxes for all forms of
communications was a well-established condition for at least five years.
Thus this prohibition, or at a minimum the casting of doubt over future use,
is a change.
The final issue is whether the use of the mailboxes is a mandatory
subject of bargaining. We think it is. In NEA-Topeka, Inc., 592 P.2d 93, 98
(Kan. Sup. Ct. 1979), the court found a number of areas which directly benefit
the union, including the right to use the local interschool mail system with-
out charge to the extent permitted by law, to be mandatory subjects because
such items are essential to the employees' right to collectively negotiate.
The reasoning of the Kansas Supreme Court on this issue is compelling.
If the contract did in fact cover the use of the mailboxes, we would
prefer to see the parties arbitrate the dispute rather than litigate under
Section 964(1)(E). As discussed above, however, the contract simply does not
apply.[fn]2 We
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2 The defense raised here that the employer was acting based on the contract
is viewed by the NLRB and the federal courts as a waiver claim. We construe
the contract here to the extent necessary to see that the WEA has not given
up its rights with respect to its continued use of the mailboxes. See, NLRB
v. Strong, 393 U.S. 357 (1969). In addition, we reject the view of the
administrative law judge In Monroe County Intermediate School District, 1
N.P.E.R. 23-10068 (Michigan Employment Relations Comm., July 24, 1979), that
a good faith but mistaken interpretation of the contract is a valid defense
to a charge of a unilateral change in working conditions. The Board has
unequivocally established that such a change is a violation of the duty to
bargain without regard to motive.
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therefore conclude that Principal Rudder has violated Section 964(1)(E).
Since Superintendent Vickerson, in a position of authority and awareness,
supported the action of Rudder, we also find him to be in violation of this
section.
The WSC is responsible for the acts of its agents and it acts through
Vickerson in negotiating and administering its labor relations decisions. We
will therefore also order the WSC to cease and desist such activity.
ORDER
Respondents Winthrop School Committee, its members and successors,
Superintendent James J. Vickerson, Jr., Principal Thomas R. Rudder, and their
representatives and agents shall cease and desist (1) from interfering with,
restraining or coercing members of the Winthrop Educators Association in
their use of the school mailboxes within the law for the purpose of communic-
ating with each other and (2) from making unilateral changes in the working
condition of its teachers by which they have the opportunity to utilize the
school mailboxes for the purposes of communicating with each other.
Dated at Augusta, Maine, this 8th day of February, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Gary F. Thorne
Alternate Chairman
/s/____________________________________
Wallace J. Legge
Employee Representative
/s/____________________________________
Don R. Ziegenbein
Employer Representative
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