STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 80-28 and 80-32
_____________________________
)
CASE NO. 80-28 )
)
)
UNION RIVER VALLEY TEACHERS )
ASSOCIATION, )
)
Complainant, )
)
v. )
)
TRENTON SCHOOL COMMITTEE, )
)
Respondent. )
)
_____________________________) DECISION AND ORDER
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CASE NO. 80-32 )
)
)
TRENTON SCHOOL COMMITTEE, )
)
Complainant, )
)
v. )
)
UNION RIVER VALLEY TEACHERS )
ASSOCIATION, )
)
Respondent. )
_____________________________)
On February 20, 1980, the Union River Valley Teachers Association (the
"Association") filed pursuant to 26 M.R.S.A. 968(5)(B) a prohibited practice
complaint against the Trenton School Committee (the "School Committee"). The
School Committee filed a response to the complaint on March 3, 1980. On March
5, 1980, the School Committee filed a prohibited practice complaint against
the Association. The Association responded to the complaint on March 13,
1980.
At a pre-hearing conference held March 17, 1980, Alternate Chairman
Donald Webber presiding, the two cases were consolidated for hearing. As a
result of the pre-hearing conference, Alternate Chairman Webber issued on
March 21, 1980 a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.
A hearing on the cases was held April 18, 1980, Alternate Chairman Gary
F. Thorne presiding, with Employer Representative Don R. Zienenbein and
Alternate Employee Representative Harald S. Noddin. The Association was
represented by Milton R. Wright, and the School Committee by Dale D. Higgins.
At the close of the hearing the Board proceeded to deliberate over the cases.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in these cases, and we conclude that the Board has jurisdic-
tion to hear the cases and render a decision as provided in 26 M.R.S.A.
968(5)(C).
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FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. The Association is the recognized bargaining agent for the
teachers employed by the School Committee. The School Com-
mittee is a public employer as defined in 26 M.R.S.A. 962(7).
2. In August, 1979, the Association and the School Committee
commenced negotiations for a collective bargaining agreement
for the Trenton Teachers. This agreement was to succeed a
contract due to expire on August 31, 1979. Christine Kirk-
land was the chief negotiator for the Association, while
Superintendent of Schools Dale Higgins was the chief negotia-
tor for the School Committee at the August and September bar-
gaining sessions. In November, 1979, Assistant Superintendent of
Schools Joseph White became the School Committee's negotiator.
Bargaining sessions were held on August 1, August 27, September
13, November 5, November 15, December 18, January 2, and Jan-
uary 28 and 29, 1980 (with a mediator). A fact finding hearing
was held on March 7, 1980.
3. By November 15th, the following four areas of the successor
agreement remained unresolved: salary scale, just cause for
dismissal or discipline, duty-free lunch periods, and contract
duration. White told Kirkland during the November 15th bargain-
ing session that he was not authorized to reach tentative agree-
ment on the remaining issues, but that he would take the issues
to the School Committee for the Committee's consideration. The
two negotiators signed a statement captioned "Proposed for Tenta-
tive Agreement" which set forth the proposed resolution of the
four issues. The statement in essence provides that the Asso-
ciation would withdraw its just cause and duty-free lunch pro-
posals, and would agree to a 3 year contract, in exchange for a
salary scale. Negotiations had progressed smoothly up to the
November 15th session, with White tentatively agreeing to a number
of contract provisions.
4. Kirkland asked White at the December 18th bargaining session
whether he had presented the proposed resolution of the remain-
ing issues to the School Committee. White responded that he
had not yet had the chance to do so, but that he would request
that the School Committee hold a special meeting for the purpose
of considering the proposal.
5. Subsequently, Kirkland received a note dated December 26, 1979
from White, stating "Touched bases - - - position is as described.
Do you want to meet on January 2?" On or about December 28th,
Kirkland telephoned White to ask for clarification of the note.
Kirkland specifically asked with whom White had "touched bases."
White responded that the School Committee's position was that
which the Committee held prior to November 15th, and that he had
touched bases "with the people who count." Kirkland asked whether
the November 15th proposal had been presented to the School Com-
mittee. White replied that that was none of the Association's
business, and would not provide a clear answer as to whether the
proposal had been shown to the School Committee.
6. White had not taken the proposal to the School Committee. White
did mention the proposal to Higgins, and also discussed the limits
of his authority with the Superintendant.
7. After the January 2nd session, Kirkland decided that no progress
was being made, and requested that the Board assign a mediator to
the negotiations. A mediator met with the parties from approxi-
mately 3:00 p.m. to 7:00 p.m. on January 28th. Near the end of this
session, the mediator told the Association negotiators that the
session would be ending shortly because White and Higgins had other
commitments that evening. The mediator said that White and Higgins
had suggested that the parties meet again later that evening, and
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indicated that the School Committee might be ready to move on the
salary scale issue. The Association agreed to meet later in the
evening.
8. The second mediation session was held from midnight to slightly
after 1:00 a.m. on January 29th. The School Committee presented
a proposal which in effect provided, among other things, for a
contract of approximately 3-1/2 years duration. The Association
rejected this proposal. The Association also presented a pro-
posal which was rejected by the School Committee.
9. After the mediation sessions, the Association requested that the
Board appoint a panel of fact finders to help resolve the impasse
in negotiations. As a result of the fact finding hearing on March
7th, the Association was billed a total of $415.71 for the fact-
finders' fees and expenses.
10. Throughout these negotiations, the Association has consistently re-
quested that the following "just cause" proposal be included in the
agreement:
"No teacher shall be disciplined, reprimanded, reduced
in rank or compensation or deprived of any professional
advantage without just cause. No tenured teacher shall
be denied renewal of contract without just cause. Any
such action asserted by the [School] Board, or any agent
or representative thereof, shall be subject to the griev-
ance procedure herein set forth before such action shall be-
come final."
The School Committee has consistently declined to bargain about inclu-
sion of this proposal in the contract, contending that just cause is
not a mandatory subject of bargaining.
DECISION
Case No. 80-28
The Association charges that the School Committee has violated 26
M.R.S.A. 964(1)(E) bv bargaining in bad faith and by refusing to negotiate
about the just cause proposal. The School Committee urges that its actions
do not constitute a violation of its duty to bargain in good faith. As dis-
cussed below, we find that the School Committee has not bargained in good
faith, and order remedies necessary to effectuate the policies of the
Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq.
The School Committee clearly has violated its duty to bargain in good
faith because it failed to give White sufficient authority to negotiate
tentative agreements on the unresolved issues and because White led the
Association's negotiator to believe that the proposed resolution of the issues
would be presented to the School Committee.
The authority of a party's negotiator is an important element to consider
when determining if a party has bargained in good faith. If the negotiator
lacks authority to reach even tentative agreements, then bargaining often is
a sham since nothing of substance can be accomplished at the bargaining
sessions. Moreover, unwarranted delays often result while the "negotiator"
transmits the other party's proposals to the decision maker, the decision
maker considers the proposals, and then relays its response through its
"negotiator" to the other party. A party which engages in this type of
procedure is not engaging in collective bargaining as contemplated by 26
M.R.S.A. 965(1).
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In the present case White by his own admission did not have sufficient
authority to reach tentative agreement on the 4 issues which remained unre-
solved by the November 15th bargaining session. This lack of authority is
evidence that the School Committee was not bargaining in good faith. See,
e.g., Westbrook Police Unit v. City of Westbrook, MLRB No. 78-25 at 4-5
(Sept. 5, 1978); NLRB v. Fitzgerald Mills Corp., 313 F.2d 260, 267 (2nd Cir.),
cert. denied, 375 U. S. 834 (1963).
This indication of bad faith bargaining is confirmed by the fact that
White deliberately misled Kirkland into believing that the negotiators'
proposed resolution of the issues would be presented to the School Committee.
At the November 15th bargaining session, White told Kirkland that he would
take the proposal to the School Committee. When Kirkland inquired on
December 18th whether that had been done, White responded that he had not yet
had the opportunity to do so, but that he would request a special School
Committee meeting for the purpose of considering the proposal. On or about
December 28th White told Kirkland that he had "touched bases" with the "people
who count," but otherwise was evasive when specifically asked whether the
proposal had been shown to the School Committee. Since White never did give
the proposal to the School Committee, we believe that his conduct outlined
above was a conscious effort to mislead Kirkland and stall negotiations.
White's conduct amounts to an intentional attempt to frustrate the
Association's efforts to reach agreement on a contract. It is bad enough that
a negotiator who did not have authority to reach tentative agreement failed to
present the School Committee with the proposal which could have resolved all
remaining issues. This fact alone completely blocked bargaining and shows
that White had no intention of settling a contract with the Association.
But where the negotiator also deliberately misled the opposing
negotiators with regard to whether the proposal would be presented to the
School Committee, the conclusion is inescapable that the negotiator was acting
in extreme bad faith. White's conduct resulted in weeks of unwarranted delay
in negotiations, and undermined a bargaining relationship which had prior to
November 15th proved to be productive. His acts as the School Committee's
bargaining agent are to be considered those of the School Committee. See 26
M.R.S.A. 962(7). White's dilatory, evasive conduct subverted the bargaining
process and constitutes a flagrant violation of the duty to bargain in good
faith set forth in 26 M.R.S.A. 964(1)(E).[fn]1
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1 0ther alleged instances of bad faith bargaining cited by the Association are
meritless. For example, the record does not show that the School Committee
deliberately induced the Association to attend the midnight mediation session
on January 28th by falsely suggesting that some progress might be made at this
session. The School Committee's proposal for a 3-1/2 year contract, which
would exceed the 3 year limit mandated by 26 M.R.S.A. 965(1)(D), was not a
violation because the School Committee did not insist that this proposal be
accented.
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White's bad faith bargaining forced the negotiations into fact-finding.
The proposed resolution of the issues formulated on November 15th was a
reasonable proposal which might have resulted in an agreement had it been
given to the School Committee. In particular, the Association agreed to give
up its demand for a just cause provision, which had been adamantly opposed by
the School Committee, as well as its demand for duty-free lunch periods, and
also agreed to a three-year contract, in exchange for a salary scale. White's
failure to inform the School Committee about this proposal is a major reason
why negotiations reached impasse, necessitating resort to fact findina.
We are empowered by 26 M.R.S.A. 968(5)(C) to order an employer that has
bargained in bad faith to reimburse the union for its reasonable bargaining
expenses. Such reimbursement is necessary to restore the status quo ante when
the monies wasted by the union in bargaining are a product of the employer's
violation of its obligation to bargain in good faith. See, e.g., Sanford
Firefighters Association, Local 1624 v. Sanford Fire Commission, MLRB No.
79-62 at 13-14 (Dec. 5, 1979); J.P. Stevens & Co., 239 NLRB No. 95, 100 LRRM
1052, 1055 (1978); Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010,
1016 (Me. 1980).
The Association has proved that it was billed a total of $415.71 as a
result of the fact-finding hearing on March 7, 1980. Because this bargaining
expense was incurred as a result of the School Committee's bad faith
bargaining, we will order among other things that the School Committee
reimburse the Association the sum of $415.71, with interest of 12% per annum
commencing to accrue ten days after the date of this Decision and Order.
This remedy is necessary in order to restore the status quo and to effectuate
the policies of the Act.
The School Committee also committed a per se violation of Section 964
(1)(E) by consistently refusing throughout negotiations to bargain about the
Association's "just cause" proposal. Just cause is a mandatory subject of
bargaining under 26 M.R.S.A. 965(1)(C). See, e.g., Cape Elizabeth School
Board v. Cape Elizabeth Teachers Association, MLRB No. 79-68 at 3 (Feb. 14,
1980), appeal docketed, No. CV 80-129 (Kennebec County Super. Ct. Feb. 28,
1980). M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers
Association, MLRB Nos. 79-36, et al. at 6-9 (Aug. 24, 1979). It is well-
settled that a party commits a per se violation of its duty to bargain by
refusing to negotiate about a mandatory subject. See, e.g., State of Maine v.
Maine Labor Relations Board, Law Court Decision No. 2303 at 9-10 (April 9,
1980); NLRB v. Katz, 369 U.S. 736 (1962). The School Committee's refusal
to bargain about the just cause proposal falls squarely within this venerable
principle of law. We will order remedies necessary to effectuate the policies
of the Act.
Case No. 80-32
The School Committee's charge that the Association violated 26 M.R.S.A.
964(2)(B) by insisting to impasse that the just cause proposal be negotiated
is meritless. A party can lawfully insist to impasse that a mandatory subject
of bargaining be negotiated. See, e.g., M.S.A.D. No. 43 Board of Directors,
supra at 12-13;
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NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349 (1958).
Since just cause is a mandatory subject, the Association's insistence on
negotiating its proposal was lawful. We will dismiss the complaint in Case
No. 80-32.
ORDER
On the basis of the foregoing findings of fact and decision 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(5)(C), it is ORDERED:
1. That the Trenton School Committee, and its representatives and
agents, cease and desist from:
a. failing to give its bargaining agent the authority to
negotiate tentative agreements with the Association,
b. engaging in dilatory and evasive tactics durinq neootiations
or otherwise bargaining in bad faith with the Association,
and
c. refusing to bargain about the Association's "just cause" pro-
posal.
2. That the Trenton School Committee and its representatives and agents
take the following affirmative actions necessary to effectuate the
policies of the Municipal Public Employees Labor Relations Act:
a. reimburse the Association the sum of $415.71 for costs incurred
during fact finding, with interest of 12% per annum to begin
accruing ten days after the date of this Decision and Order,
b. bargain with the Association whenever the Association so requests
about the just cause proposal and all other mandatory issues
which remain unresolved,
c. post for a period of 60 consecutive days copies of the attached
Notice signed by Superintendent Higgins in all places where
notices to the teachers in the bargaining unit customarily are
posted, and
d. within 30 days of the date of this Decision and Order notify in
writing the Maine Labor Relations Board at its offices in
Augusta, Maine of the steps it has taken to comply with this
Decision and Order.
3. The School Committee's prohibited practices complaint filed March 5,
1980 in Case No. 80-32 is dismissed.
Dated at Augusta, Maine, this 30th day of May, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________ e
Gary F. Thorne i mnan
Alternate Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Harold S. Noddin
Alternate Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL NOT fail to give our bargaining agent the authority to
negotiate tentative agreements with the Teachers Association.
(2) WE WILL NOT engage in dilatory or evasive tactics during
negotiations or otherwise bargain in bad faith with the Teachers Association.
(3) WE WILL NOT refuse to bargain about the Teachers Association's
"just cause" proposal.
(4) WE WILL reimburse the Teachers Association the sum of $415.71 for
costs incurred during fact finding, with interest of 12% per annum to beqin
accruinq 10 days after the date of the Decision and Order.
(5) WE WILL bargain with the Teachers Association whenever the
Association so requests about the just cause proposal and all other mandatory
subjects of bargaining which remain unresolved.
(6) WE WILL within 30 days of the date of the Decision and Order notify
in writing the Maine Labor Relations Board at its offices in Augusta, Maine of
the steps we have taken to comply with the Decision and Order.
TRENTON SCHOOL COMMITTEE
Dated __________ By______________________________________
Dale D. Higgins Superintendent
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine, 04333, Telephone
289-2016.