STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-18
_____________________________
)
MAINE SCHOOL ADMINISTRATTVE )
DISTRICT NO. 52, )
)
Complainant, )
)
v. )
)
S.A.D. NO. 52 UNIT OF LOCAL ) DECISION AND ORDER
2010, COUNCIL 74, AMERICAN )
FEDERATION OF STATE, COUNTY )
AND MUNICIPAL EMPLOYEES, )
AFL-CIO, and its officers, )
agents and members, )
)
Respondent. )
_____________________________)
On November 28, 1979, Maine School Administrative District No. 52 (the
"School District") filed a prohibited practice complaint pursuant to 26
M.R.S.A. Sec. 968(5)(B) against the S.A.D. No. 52 Unit of Local 2010, Council
74, AFSCME (the "Union") and others. The Union filed an answer to the
complaint on December 17, 1979.
A pre-hearing conference on the case was held on January 7, 1980,
Alternate Chairman Donald W. Webber presiding. As a result of this pre-
hearina conference, Alternate Chairman Webber issued on January 11, 1980 a
Pre-Hearing Conference Memorandum and Order, the contents of which are
incorporated by reference in this Decision and Order.
A hearing on the case was held on February 1, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegienbein and Alternate
Employee Representative Harold S. Noddin. The School district was represented
bv Bryan M. Dench, Esq., and the Union by Stephen P. Sunenblick, Esq. Full
opportunity was given to adduce testimony and present evidence. The parties
filed post-hearing briefs, which have been considered by the Board.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this case, and we conclude that the Board has jurisdiction
to hear and render a decision and order in the case as provided in 26 M.R.S.A.
Sec. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. The School District is a public employer as defined in 26 M.R.S.A.
Sec. 962(7). Thomas Meagher is the School District's Superintendent
of Schools, John Biscoe is the Princinal of Leavitt Hiah School in
the School District, and Danville Dearborn is the School District's
Business Manager and a supervisor of the bus drivers employed by the
School District.
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2. The S.A.D. No. 52 Unit of Local 2010, Council 74, AFSCME is a
public employee organization whose membership is composed of
the janitors, mechanics and bus drivers employed by the School
District. Council 74 of the American Federation of State, County
and Municipal Employees, AFL-CIO, is the service arm of various
locals affiliated with AFSCME in the State of Maine. Local
2010 is a local for non-certified school employees employed by
school districts in southern Maine. Charles Sherburne is the
Executive Director of Council 74 and is an advisor and consul-
tant to the S.A.D. No. 52 Unit of Local 2010. John Ezhaya is a
Field Representative for Council 74, and is assigned to service the
S.A.D. No. 52 Unit. Juanita Green is a bus driver for the School
District and was on October 31, 1979 the President of the S.A.D.
No. 52 Unit.
3. At about 1:00 p.m. on October 31, 1979, Sherburne received a
telephone call at his office in Augusta from his wife, who is
a bus driver employed by the School District. Sherburne's
wife stated that something had happened to one of the bus drivers,
that the other bus drivers were upset, and that Council 74 should
get a representative over to the School District right away.
Sherburne left for the School District immediately, leaving a
message for Ezhaya to come to Leavitt High School as soon as
possible.
4. Upon arriving at the High School at about 1:30 p.m., Sherburne saw
a group of drivers in a bus, and boarded the bus to find out what
was going on. The drivers were agitated and upset, and were talking
about voting on whether to go on strike against the School District.
They explained to Sherburne that earlier in the day a driver had
resigned because she felt that the School District administration
had not backed her up by adequately disciplining students who had
opened the emergency door and jumped off her bus. This was the
second time that students had jumped off a bus through the emergency
door, and the drivers were upset because they believed that the
School District was not supporting the drivers by imposing strong
enough discipline against the students. The drivers feared they
might be liable for any injuries resulting when the students jumped
off the buses.
5. Sherburne suggested that he and one of the drivers call the driver
who had resigned to see if she would withdraw her resignation. The
drivers agreed to this plan. After being contacted by Sherburne, the
resigned driver came to the High School and spoke briefly with Sher-
burne. About 1:50 p.m. the driver and Sherburne went into the High
School to call Superintendent Meagher to ask that the resignation be
withdrawn. As they were leaving the bus to make the call, Sherburne
told the drivers not to take any strike votes and to wait for him to
return. Meagher agreed when contacted that the resignation could be
withdrawn.
6. As Sherburne left the building after calling Meagher, he ran into
Dearborn, the School District's Business Manager and the drivers'
supervisor. Dearborn asked what was wrong, and Sherburne told him
that the drivers were upset about the discipline given to students
who jumped off buses. At that point Ezhaya walked up. Someone
suggested that the problem be discussed in the Princioal's office in
the High School, and at about 2:00 p.m. Dearborn, Sherburne and
Ezhaya went into the building to go to the office.
7. After a few minutes of discussion, Biscoe, the Principal of the High
School, came into the office to ask when the buses would be leaving.
Dearborn said he didn't know, and put a call in to Meagher. Meagher
said the buses should leave immediately, and then spoke to Ezhaya,
arranging a meeting for that afternoon. While Dearborn was calling
Meagher, Sherburne and Biscoe walked out to the sidewalk in front of
the High School and Sherburne motioned for the buses to leave. The
buses pulled out from the High School at approximatelv 2:15 a.m.
After the buses left, the men met in the Superintendent's office and
resolved the drivers' concern about the School District's discipline
policy for students.
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8. The buses park in front of the High School in double columns. Each
bus is parked immediately behind the bus in front of it, so that
the first bus in the column must pull ahead before any of the buses
behind it can move forward. Approximately 21 buses were parked in
front of the High School on October 31, 1979. Steven Page, the
driver of the first bus in one of the columns, was not a member
of the Union. Some of the other drivers also were not members of
the Union. When Page arrived at the High School on the afternoon
of October 31st, he was told by one or two drivers that the buses
were not going to move until the disciplinary problems was resolved.
The drivers said that Dearborn or Sherburne would be out to tell the
drivers when to leave. Paae accordingly waited until Sherburne and
Biscoe appeared before leaving the High School.
9. Classes end for the day at the High School at 2:01 p.m. It takes
approximately 4 or 5 minutes for the students to board the buses,
and the buses usually leave the High School between 2:05 and 2:07
p.m. Bus departures from the High School are occasionally delayed
by mechanical or disciplinary problems or by the weather.
DECISION
The School District charges that the Union engaged in a strike in viola-
tion of 26 M.R.S.A. 964(2)(C). The Union contends that there is no evidence
that it was involved in a job action. We find that while some of the drivers
may have advocated and participated in a brief work stoppage, there is no
clear evidence that any of the respondents named in the complaint encouraged
or participated in a job action. We consequently will dismiss the prohibited
practices complaint.
There is evidence that some drivers were considering the possibility of
striking over what they perceived to be the School District's failure to
discipline adequately the students who opened the emergency doors and jumped
off the buses. The drivers so informed Sherburne when he boarded the bus upon
arriving at the High School. When Page arrived at the High School to take his
place at the head of one of the bus columns, he was told by one or two drivers
that the buses were not going to roll until the disciplinary problem was
resolved. Page understood that Dearborn and Sherburne were working on the
problem and that he was to wait until Dearborn or Sherburne told the drivers
to leave.
In addition, the buses left the High School approximately 10 minutes
later than the usual departure time. The School District contends that during
this 10 minute period the bus drivers engaged in a strike. We cannot agree,
based on our examination of the record before us. The alignment of the buses
was such that none of the buses could move unless the bus at the head of the
column pulled forward. Thus, while the drivers of the buses at the front of
each of the two columns may have been engaging in a work stoppages it does not
necessarily follow that the drivers behind them were voluntarily partici-
pating. Moreover, there appears to have been some legitimate confusion on the
part of the bus drivers durinq the time in question. Neither of the two
School District officials at the scene, including Dearborn, a supervisor of
the drivers, ordered the drivers to leave. The drivers could have legiti-
mately understood that the School District was permitting the drivers to wait
a few minutes while the disciplinary issue was discussed. In addition,
although not of controlling importance, none of the drivers or the Union
officials ever stated that the drivers were engaging
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in a work action. In short, in light of the peculiar circumstances of this
case, we cannot say with certainty that the drivers were engaging in a
concerted refusal to work.
Even if the drivers of the two buses at the front of the columns or other
drivers in the columns were participating in a work stoppage, the School
District has not named any of these drivers as respondents in the complaint.
The School Committee has named among others as respondents the "members" of
the Union. Not all the bus drivers are members of the Union, however. For
example, Page, a driver of the bus at the head of one of the columns, is not
a Union member, and is not otherwise named as a respondent. We do not know
the identity of the driver at the head of the second column, or if the driver
is a Union member. The same is true of all the other drivers except Juanita
Green, who was driving a bus on October 31st and who was President of the
Union. However, we do not know her role, if any, in advocating a strike or
in participation in the alleged work stoppage.
The School District urqes that the entire group of bus drivers partici-
pated in the strike and that since some drivers are members of the Union,
Union members necessarily were on strike. As discussed above, we do not
agree that the record is sufficient to show that all drivers voluntarily
participated in a job action or even that the incident in question constituted
a job action. We will not find the drivers guilty of the serious offense of
striking in the absence of reasonably clear evidence that the drivers were in
fact on strike.[fn]1
The School District initially named Sherburne, Ezhaya, Council 74, Green,
and Local 2010 and its officers, agents and members[fn]2 as respondents.
During the hearing at the close of the School District's case, we dismissed
the complaint as to Sherburne, Ezhaya, Council 74 and Green on the ground that
the evidence failed to show that any of these respondents encouraged or
participated in a work action.
In particular, the record shows that Sherburne took the positive steps
of trying to calm the drivers by getting the driver's resianation withdrawn,
telling the drivers not to take any strike votes and to wait until he returned
before doing anything, discussing the problem in an apparently low-key fashion
with Dearborn, and signaling the drivers to go as soon as he learned the buses
were due to leave. These actions hardly constituted attempts to promote a
work stoppage, but to the contrary were efforts geared to preventing the
occurrence of any job actions. Ezhaya played a neutral role, apparently not
even having contact with any of the bus drivers on the day in question. Since
Council 74's agents - Sherburne and Ezhaya - did not foster or participate in
a job action, Council 74 is not responsible for any violation. As previously
noted, there is no evidence that Green encouraged the drivers to strike or
deliberately engaged in any work action herself.
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1 A job action of 10 minutes duration unquestionably would be a violation of
26 M.R.S.A. 964(2)(C); our holding should not be construed to the contrary.
We simply conclude here that the evidence does not sunport the School
District's charge that the respondents encouraged or participated in a strike.
We also note that in light of all the facts, this case involves a relatively
trivial incident which mature and sophisticated parties should have been able
to resolve on their own, without resort to this Board.
2 During the hearing the School District was granted permission to amend its
complaint to name the "S.A.D. No. 52 Unit" of Local 2010 as a respondent.
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This case therefore is very unlike Rumford School Department v. Rumford
Teachers Association, MLRB No. 79-15 (July 30, 1979). In Rumford, the union
through its president issued a written statement that the teachers would not
be meeting with students on a scheduled class day. The president also
admitted to the superintendent of schools that he knew the proposed job action
was against the law, but that the teachers were adamant in their decision to
strike. Most of the teachers then failed to appear at school on the day in
question. In short, in Rumford the union and its leadership plainly condoned
the work stoppage and the membership plainly engaged in a concerted refusal
to work. None of these elements are shown by the record in the present case.
Also pending before us is a motion for award of costs filed by the School
District. This motion alleges that counsel for the Union improperly rejected
and renounced a stipulation prepared by counsel for the School District as a
result of the January 7, 1980 pre-hearing conference. The prehearing
conference memorandum and order provides in pertinent part:
"After identification and consideration of the issues raised by
the pleadings, it was agreed that the parties should be able to
resolve these issues without the necessity of a Board hearing.
It was accordingly further agreed that Counsel for Complainant
should prepare a written document incorporating and pursuant to
his understanding of the agreement reached, such draft to be sub-
mitted to Counsel for Respondents for approval and such action as
may be required thereon."
As we read this language, counsel for the Union acted within the agree-
ment made at the pre-hearing conference in refusing to execute the stipula-
tion. The agreement was that counsel for the Union would consider the draft
stipulation for approval or other action. Upon considering the stipulation,
counsel for the Union apparently disagreed with the language and conclusions
of the stipulation and refused to sign. While we always enforce agreements
made at prehearing conferences, see, e.g., Maine Teachers Association v.
Sanford School Committee, MLRB Nos. 77-18, et al. at 4 (June 13, 1977), we
simply do not see that the Union's counsel breached any agreement by rejecting
the draft stipulation. We accordingly deny the School District's motion for
award of costs.
ORDER
On the basis of the foregoing findings of fact and decisions and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. Sec. 968(5)(C), it is ORDERED:
1. The prohibited practices complaint filed November 28,
1979 by Maine School Administrative District No. 52 is
dismissed.
2. The School District's motion for award of costs is denied.
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Dated at Augusta, Maine this 2nd day of July, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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