STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 80-35 and 80-40
Issued: April 14, 1982
_______________________________
)
Case No. 80-35 )
)
SOUTHERN AROOSTOOK TEACHERS )
ASSOCIATION, )
)
Complainant, )
)
v. )
)
SOUTHERN AROOSTOOK COMMUNITY )
SCHOOL COMMITTEE, )
)
Respondent. )
_______________________________)
)
Case No. 80-40 ) DECISION AND ORDER
)
SOUTHERN AROOSTOOK COMMUNITY )
SCHOOL COMMITTEE, )
)
Complainant, )
)
v. )
)
SOUTHERN AROOSTOOK TEACHERS )
ASSOCIATION, )
)
and )
)
MAINE TEACHERS ASSOCIATION, )
)
and )
)
ROGER KELLEY, )
)
Respondents. )
_______________________________)
These are prohibited practices cases, filed on March 16, 1980 by the
Southern Aroostook Teachers Association ("Association") and on April 22, 1980
by the Southern Aroostook Community School Committee ("Committee"). Each
party alleges that the other party met and consulted and negotiated in bad
faith and engaged in acts of
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interference and harassment during the 1979-'80 school year in violation of
the prohibited practices provisions of the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A. Section 961, et seq. ("Act"). The Committee also
alleges that the Association instructed one of its members to engage in a job
action in violation of 26 M.R.S.A. Section 964(2)(C). The Committee filed an
answer to the Association's complaint on April 3, 1980, and the Association
responded to the Committee's complaint on May 12, 1980. The Association filed
an amendment to its complaint on June 19, 1980, alleging that the Committee
violated 26 M.R.S.A. Section 964(1)(D) by docking the salaries of teachers who
testified during the hearings on these cases. The Committee filed an answer
to the amendment on July 21, 1980. Various motions to dismiss have also been
filed by the parties.
Pre-hearing conferences on the cases were held on April 28 and May 27,
1980, Alternate Chairman Donald W. Webber presiding. On May 2 and May 29,
1980, Alternate Chairman Webber issued pre-hearing conference memoranda and
orders, the contents of which are incorporated herein by reference. These
cases were consolidated for hearing at the May 27th pre-hearing conference.
Hearings on the cases were held on May 30, June 17, September 4 and 5
and October 6 and 7, 1980, Chairman Edward H. Keith presiding, with Employer
Representative Don R. Ziegenbein and Alternate Employee Representative Harold
S. Noddin. The Association was represented by Roger Kelley and the Committee
by Thomas C. Johnston, Esq. Full opportunity was given for the parties to
examine and cross-examine witnesses, introduce evidence, and make argument.
Both parties filed post-hearing briefs, which have been considered by the
Board.
JURISDICTION
The Southern Aroostook Teachers Association and the Maine Teachers
Association are public employee organizations within the meaning of 26
M.R.S.A. Section 968(5)(B). The Southern Aroostook Teachers Association is
the recognized bargaining agent for the certified teachers employed by the
Committee. Roger Kelley is employed by the Maine Teachers Association as a
UniServ Director, and was at all times material to these cases acting as an
agent for the Maine Teachers Association in providing labor relations
services, assistance and advice to the Southern Aroostook Teachers
Association. The Committee is a "public employer" as defined in 26 M.R.S.A.
Section 962(7). The jurisdiction of the Maine Labor Relations Board to hear
these cases
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and render a decision and order lies in 26 M.R.S.A. Section 968(5).
FINDINGS OF FACT
1. At all times material to these cases, Harold Dickinson, John
Getchell, Mary Ann Anderson, and Lois Ruliffson were teachers employed by the
Committee. Dickinson was president of the Association, Getchell was chief
negotiator and, until January 18, 1980, grievance chairperson for the Asso-
ciation, and Anderson was after January 18th the grievance chairperson. At
all times material herein Henry Joy was the Committee's Superintendent of
Schools and Carmi Wells was the elementary school principal. A collective
bargaining agreement with a term of August 1, 1978 through July 31, 1980 was
in effect at all times pertinent to these cases.
2. During the 1978-'79 school year, Superintendent of Schools Joy asked
Getchell, the acting elementary school principal, to evaluate the school
district's kindergarten program. The Superintendent had received suggestions
from some parents of kindergarten students and some Committee members that
there should be more academic emphasis in the kindergarten program and that a
mid-day kindergarten bus run should be eliminated in order to save fuel. The
program consisted of a morning session attended by approximately half the
kindergarten students and an afternoon session attended by the remaining
students, with a 120 mile bus run at noon to take the morning students home
and bring the afternoon students to school. Since the acting principal was
not qualified to evaluate kindergarten programs, no evaluation was done and
no changes were made in the program during the 1978-'79 school year.
3. Carmi Wells was hired to be the elementary school principal in the
summer of 1979. During his pre-employment interview with the Committee and
the Superintendent, his philosophy regarding kindergarten programs was
discussed and he was asked whether he could make the kindergarten program
more of an academic program. One of Wells' first assignments after being
hired was to analyze the kindergarten program and report back to the Superin-
tendent. The Superintendent told Wells he was thinking of changing the
program from two sessions per day to one session for all kindergarten students
spanning the morning and the afternoon.
4. Wells met with Lois Ruliffson, the kindergarten teacher, on several
occasions during the week of August 16th to 23rd. Wells explained that he had
been instructed to analyze the kindergarten program, and he and Ruliffson
discussed the emphasis of
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the program, the workbooks used, and the hiring of an associate teacher if
the kindergarten schedule was modified to one session per day. Wells
presented his ideas about changing the kindergarten program at the Committee's
August 23rd meeting, and the Committee voted to support the concepts of
changing the program's emphasis and of having one daily session.
5. During the period between the Committee's August 23rd meeting and its
next meeting on October 2nd, several efforts were initiated to determine
whether the proposed changes should be implemented. Wells formed a study
committee composed of Ruliffson, a retired kindergarten teacher, and himself
to plan for the proposed changes. This group looked at possible areas in
which the expanded kindergarten could be relocated in the school building and
reviewed samples of kindergarten workbooks. The workbooks which Ruliffson
preferred were ordered and an academic kindergarten was instituted. Wells and
Ruliffson also conducted a survey of the kindergarten parents and held a
meeting for the parents at which parental support for the proposed change was
voiced. Wells also met to discuss the changes with some of the elementary
teachers, several of whom were opposed to moving the kindergarten to another
area in the building.
6. Wells presented a report on the progress of his study of the kinder-
garten program at the October 2nd Committee meeting. After a discussion about
the program, the Committee voted to advertise the position of associate
teacher, to have applicants for the position interviewed, and to take
recommendations on whom should be hired. At this point Joy understood that
the plan was to hire an associate teacher and to have one kindergarten session
per day in the same area of the building in which the two sessions were being
held. The Superintendent anticipated that these changes would be implemented
at the end of the first ranking period in November.
7. After the October 2nd Committee meeting, Wells asked Ruliffson to
meet with the applicants for the associate teacher's position and to let Wells
know how she felt about each applicant. After meeting with the first of three
candidates interviewed by Wells, Ruliffson told Wells she didn't know what to
talk to the applicants about because she was confused about the associate
teacher's role. Ruliffson also stated that if the Superintendent had a
problem with the kindergarten program, he should discuss it with her himself.
Wells accordingly arranged a meeting between Ruliffson, Joy and himself for
October 25th for the purpose of clarifying any confusion about the changes in
the kindergarten program.
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8. On October 24, 1979, Association President Dickinson in a letter to
Joy requested pursuant to 26 M.R.S.A. Section 965(1) that the Committee meet
within 10 days to meet and consult about and negotiate the impact of the
changes in the kindergarten program. The letter states that implementation
of any changes in the program prior to completion of the meet and consult
process and impact bargaining would be a prohibited practice.
9. Ruliffson did not appear at the scheduled time for the meeting on
October 25, 1979 with Joy and Wells. When Wells telephoned Ruliffson in the
teachers' room and asked her to come to the meeting, she responded that
Dickinson had told her not to discuss the kindergarten program with Joy and
Wells. At Wells' request, Ruliffson came to the meeting and repeated the
advice she had received from the Association President. No discussion about
the kindergarten program occurred at this meeting.
10. Joy responded to the Association's request to meet and consult in a
letter to Dickinson dated October 26, 1979. The Superintendent questioned
whether the request to meet and consult was an action by the Association or
by a few individuals acting in the name of the Association, stating that
before a meet and consult session could be arranged he must be informed of
the agenda, date, time and place of the Association meeting which authorized
the tendering of the meet and consult request, as well as the number and names
of the persons present at the meeting and the recorded vote. Two teachers
apparently had expressed concern to Joy that the Association had asked to meet
and consult about the changes in the kindergarten program. Joy also on
October 26th sent a memorandum to the parents of kindergarten students,
stating that action taken by the Association would delay implementation of
the one session kindergarten program. Dickinson explained to Joy at a meeting
on October 29th that the Association's executive committee was empowered to
make decisions in the name of the Association, and informed Joy that he had
no right to the information which he had requested.
11. Dickinson and Roger Kelley, the Maine Teachers Association employee
who advised the Association, had decided based on their understanding of the
law that Ruliffson was not required to assist in planning or implementing the
changes in the kindergarten program prior to completion of the meet and
consult process. Dickinson and Getchell accordingly had advised Ruliffson
prior to the October 25th meeting that she should not help plan the changes
but should instead let the Association handle the issue of changing the
program. This advice resulted in Ruliffson's
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refusal to discuss the kindergarten program at the October 25th meeting with
Wells and Joy.
12. On October 29, 1979, Wells gave Ruliffson a memorandum which states
that her refusal to discuss the kindergarten program on October 25th was an
insubordinate act. The memorandum states that a second meeting to discuss
changes in the kindergarten program would be held on October 30th, and that a
refusal by Ruliffson to discuss the program at this meeting would be an
aggravated act of insubordination which would result in disciplinary action.
Wells asked Ruliffson to sign the memorandum, and, when Ruliffson asked if
she could get someone else to look at the document, Wells agreed. Ruliffson
got Getchell to review the memorandum, and, based on his advice that she not
sign the document, returned it to Wells unsigned. No meeting between Wells
and Ruliffson took place on October 30th; shortly after classes ended on the
30th Wells was called away from school on personal business. No disciplinary
action was taken against Ruliffson for her refusal to talk about the program.
13. At its monthly meeting on November 6, 1979, the Committee voted to
employ the Superintendent's nomination for the associate teacher's position
as soon as contractual problems were cleared up.
14. Association and Committee representatives met for the first meet and
consult session on the change in the kindergarten program on November 7, 1979.
Most of the three-hour session was devoted to questions by the Association
about such matters as why the Committee had decided to change the kindergarten
program, the area in which the enlarged class would be located, and the
schedule for the class. The Committee answered some of the questions, agreed
to supply information which the Association requested, and indicated that some
details of the new program would be worked out after the program was imple-
mented. Getchell had some notes from which he asked questions and, near the
end of the session, Joy asked if the Association would give the Committee a
list of the questions it wanted answered. Getchell initially agreed to turn
over a list, but, after a caucus with the Association bargaining team, said
he had changed his mind and would not provide the list.
15. The parties met again for a meet and consult session on November 19,
1979. The Association asked a number of questions and requested that it be
provided with copies of the parents' survey conducted by Wells and Ruliffson,
of job descriptions for the associate teacher and the kindergarten teacher,
and of a schedule for the new program. The Committee provided this informa-
tion on or about December 6, 1979,
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prior to the next meet and consult session on December 12th. The Association
also stated that implementation of the new program should not occur until
after the meet and consult process was completed, and said that it would make
its recommendations regarding changes in the kindergarten program at the next
meet and consult session.
16. During the third week of November, Wells asked Ruliffson and the
newly-hired associate teacher to plan the details of the first day of kinder-
garten under the new schedule as well as a daily schedule for the program.
Subsequently the associate teacher told Wells that she had made an attempt to
talk to Ruliffson about planning a schedule, but that Ruliffson had some
problems with doing this planning. In a note to Ruliffson dated
November 28th, Wells ordered that Ruliffson meet with the associate teacher
and plan the details for implementation of the new program, and to report the
results of the teachers' planning to him by 3:00 p.m. on November 30th.
17. Ruliffson showed Dickinson the note on November 28th, and he told her
that the Association's position was that the change could not be implemented
until the meet and consult process was over and advised her not to begin
planning for the new program. On November 29th, Dickinson sent Joy a letter
stating that the Committee was prohibited by law from implementing educational
policy changes until the meet and consult process and impact bargaining were
concluded, and that Wells' note to Ruliffson was inappropriate and improper.
Ruliffson also responded to Wells' note on November 29th, stating in a note to
Wells that she would comply with his directive "when the time is appropriate."
18. On November 30th, Wells told Getchell that he intended to "counsel"
Ruliffson that afternoon about complying with his order. Getchell relayed
this information to Dickinson, who phoned Kelley. During the afternoon of
November 30th, Kelly told Wells over the telephone that Ruliffson was pro-
hibited by the meet and consult law from discussing the kindergarten proposal
and that in order to avoid singling out Ruliffson, Wells should counsel the
entire staff. After speaking to the Superintendent, Wells decided that it
would be best not to single out Ruliffson but instead to talk to the staff as
a group. Wells told the staff at a brief meeting after school that day that
each of them was responsible for his/her actions regardless of the advice they
might receive from someone else.
19. Following the staff meeting, Wells met with Ruliffson, Getchell and
another teacher in his office. Shortly before Ruliffson went to this meeting,
she
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was instructed in a note from Dickinson not to discuss specific issues with
Wells. The note also instructs that if Wells threatened to dismiss her for
failing to plan for the kindergarten change, Ruliffson should find out the
time frame in which Wells was operating. Wells and the teachers did not
discuss counseling or the meet and consult process at the meeting, however;
Wells merely asked Ruliffson to prepare a report on the progress of the
kindergarten class in time for the Committee's next meeting on December 4,
1979. Ruliffson submitted this report in accordance with Wells' instructions.
Wells and Joy subsequently decided not to discipline Ruliffson for her
refusal to plan for the new kindergarten program because they perceived that
she was caught in the middle of a dispute between the Association and the
Committee.
20. The Committee at its December 4th meeting voted to implement the new
kindergarten program on January 2, 1980, subject to the discretion of the
Superintendent if changes were required.
21. In a letter dated December 6, 1979, Joy responded to Dickinson's
November 29th letter, stating that the Committee did not agree that the meet
and consult process must be exhausted before the new program could be
implemented, and indicating that the Committee was willing to continue
meeting and consulting with the Association on the matter.
22. The third meet and consult session was held on December 12, 1979.
Getchell read a statement criticizing various aspects of the Committee's plan,
including the facts that the new kindergarten program would occupy space in
the school's media center and that an associate teacher rather than a certi-
fied kindergarten teacher would be employed for the new program. The Asso-
ciation then recommended that the status quo be maintained with the parties
continuing to meet and consult for the remainder of the school year, during
which time the kindergarten program could be evaluated by a panel of parents,
teachers, administrators, and Committee members to see if any changes were
warranted. The Association also objected to the fact that the Committee had
selected an implementation date, and stated that implementation of the program
on January 2nd would be a prohibited practice. At the conclusion of the
meeting Joy said that the Association had provided some food for thought and
that he would take the matter up with the rest of the Committee members and
get back to the Association for scheduling another meet and consult session.
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23. On December 14, 1979, Joy sent a memorandum to the parents of kinder-
garten students, stating that as a result of the December 12th meeting with
the Association, it was apparent that the Association had no interest "in
improving your child's educational program this year" and that the new kinder-
garten program had been made a "labor issue." Referring to an upcoming
meeting for kindergarten parents called by the Association, Joy said that the
meeting appeared to be an effort by the Association to discourage parental
support for the Committee's plan.
24. On December 18, 1979, the Association held a public meeting for
kindergarten parents and other interested persons for the purpose of
expressing the Association's views and concerns about the proposed changes in
the kindergarten program. Invitations to attend the meeting were sent to
kindergarten parents and to the Committee, and a notice about the meeting was
published in the local newspaper. Several Association members, including
Dickinson and Getchell, gave presentations about various aspects of the
kindergarten program, and materials were distributed to those in attendance.
25. Joy asked Wells, who had a child in the kindergarten program, and the
chairman of the Committee to attend the December 18th meeting and report to
Joy on what was said. When Wells arrived at the meeting, he asked Dickinson
if he could tape record the session, with Dickinson responding that he would
rather Wells not use a tape recorder. Wells then asked if he could take notes
and Dickinson agreed that he could. During the meeting, Wells noted the
number of people present, the names of the teachers and aides and some of the
parents who were present, and the main points made during the presentations.
Kelley sat next to Wells throughout the meeting and watched him take the
notes. After the meeting, Wells and the Committee chairman met with Joy at
Joy's house for about 35 minutes, reporting the names of those teachers who
gave presentations and a summary of what was said. Wells did not show his
notes to Joy or anyone else on December 18th or anytime thereafter.
26. Joy sent a memorandum to the kindergarten parents on December 21,
1979, stating that the new program would not be implemented on January 2,
1980 since some issues remained to be resolved and the Association's input
needed to be considered and weighed. A new implementation date was not
mentioned in the memorandum.
27. During Christmas vacation, Joy decided to change the original plan
for a new kindergarten program by incorporating some of the Association's
suggestions. Joy decided to propose to the Committee that the kindergarten
be divided into two
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separate sections, which would meet at the same time of day, and that a second
certified teacher be hired to teach the second section. Joy also decided in
light of the Association's comments that the kindergarten should be moved from
the media center back to the area of the school originally designed for
kindergarten classes. Joy presented his new proposal to the Committee at its
meeting on January 3, 1980. The Committee voted to rescind the original
proposal to change the kindergarten program and to adopt Joy's proposal and
implement the new program at the beginning of the second half of the school
year on January 21, 1980. At the conclusion of the meeting Getchell reminded
Joy that the parties were still in the meet and consult process, and Joy told
Getchell to make a request to meet and consult about the new plan. On
January 4th, Wells sent a memorandum to the elementary staff announcing the
Committee's action.
28. In a letter dated January 4, 1980 to Joy, Getchell asked that the new
proposal not be implemented until the meet and consult process and impact
bargaining were completed. Joy responded on January 7th, stating in a letter
to Getchell that the new proposal took the Association's concerns into
consideration. Joy gave an outline of the new proposal to Getchell within a
few days of January 7th.
29. On January 10, 1980, some of the teachers began rearranging shelves
and other equipment in the media center in preparation for the relocation of
the kindergarten class. Wells notified the parents of kindergarten students
on January 11th that the new program would begin on January 21st and provided
some of the details of the new program. Getchell again wrote to Joy on
January 11th, stating that any changes in the status quo should be taken up
in the meet and consult process. Joy responded in a letter dated
January 14th, offering to meet and consult prior to a mediation session
scheduled for January 17th. No further meet and consult sessions were held,
however.
30. On January 17, 1980 the parties met with a state mediator from
approximately 2:00 p.m. to 11:00 p.m. The Association had in December
requested pursuant to 26 M.R.S.A. Section 965(2) that the Executive Director
assign a mediator to the dispute, stating that the scheduled change in the
kindergarten operation and impact bargaining were the issues to be discussed
in mediation. The Committee objected to assignment of a mediator on the
ground that no cognizable dispute existed and that the request for mediation
therefore was improper, but on January 2nd the Executive Director informed
the parties that the mediator could participate
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both in matters of impact bargaining and in meet and consult efforts. The
parties discussed the same issues during mediation that had been discussed at
the meet and consult sessions, including such issues as location of the
kindergarten class, evaluation of the program, transportation of the students,
and the daily schedule. The Association maintained its position that the new
program should not be implemented until the meet and consult process and
impact bargaining were completed. At the conclusion of the mediation session
the Committee spokesperson offered to begin bargaining over the impact of the
changes in the kindergarten program, but the Association did not respond to
this offer.
31. Getchell was granted one half day of personal leave time, commencing
at 1:00 p.m. on January 17th so that he could participate in the mediation
session. Shortly after 1:00 p.m., while waiting for the mediation session to
begin, Getchell and Dickinson saw the high school principal and asked if he
would discuss a pending grievance. The principal discussed the grievance in
his office for a few minutes, and then told Getchell and Dickinson to go back
to their classes because they were not supposed to discuss Association
business during school hours. Getchell returned to check on his class and
then went to the mediation session. No discipline or reprimand was issued to
Getchell as a result of the incident with the principal.
32. Starting on Friday, January 18, 1980 and continuing over the weekend
the kindergarten was moved to the area of the school originally designed for
kindergarten classes and other class areas were rearranged to accommodate this
move. Ruliffson came in on Sunday and early Monday morning to help with
setting up the new area. On Monday, January 21st, the new kindergarten
program was implemented.
33. The Association has a system by which most Committee meetings are
attended by at least one teacher. Dickinson attended the Committee meetings
on August 23rd, October 2nd, November 6th, December 4th and January 3rd. The
Association usually was provided in advance with the agendas of Committee
meetings as well as the minutes of the prior meeting. No agendas, minutes, or
handouts to Committee members relating to the kindergarten program were ever
withheld from the Association.
34. On February 1, 1980 Dickinson forwarded to the chairman of the
Committee a resolution passed by the members of the Association expressing a
lack of confidence in the leadership and educational policies of Joy, Wells,
and the high school principal. The resolution enumerates the reasons for the
vote of no confidence, and
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asks that the chairman inform the other members of the Committee of the
action. The Committee considered the resolution at one of its meeting and
passed a vote of confidence in the administrators.
35. On February 14, 1980 Joy sent letters to Dickinson, Getchell and
Anderson stating that each had taken actions in violation of the contract.
Each letter states dates upon which the employee allegedly had done something
contrary to a contract provision. For example, the letters to Dickinson and
Getchell state that both conducted Association business while school was in
session by doing such things as filing a grievance with the principal,
putting mail in the teachers' mailboxes, delivering a memorandum to the
Superintendent, and making phone calls. All of these activities had
previously been allowed during a teacher's noninstructional time, and Joy had
not previously brought the alleged incidents, two of which occurred in
October, 1979, to the attention of the employees. The letter to Anderson
states that she violated the contract by bypassing the Superintendent in
notifying the Committee Chairman of a grievance. This contention is trivial
in that Anderson, the grievance chairperson, sent Joy a copy of the notice at
the same time she sent the notice to the Chairman. Each letter states that
no action was being taken by the Committee at the present time but that if
further violations occurred, disciplinary action would be taken and copies of
the letters would be placed in the employees' personnel files. No disci-
plinary actions have been taken and the letters apparently have not been
placed in the employees' files.
36. In a letter to Joy dated March 10, 1980, the Association requested a
meeting to negotiate the impact of the changes in the kindergarten program.
The letter reiterates the Association's position that the new program could
not properly be implemented until the meet and consult process and impact
bargaining were completed.
37. In January, 1980 Joy and Getchell agreed to use during upcoming
contract negotiations the same written groundrules which had been used in past
negotiations. At the first impact bargaining session on March 27, 1980,
however, Getchell said that he would not agree to most of these groundrules
for impact bargaining. Among the matters about which the Association would
make no agreements were the number of persons who could attend bargaining
sessions, whether matters discussed during impact bargaining should remain
confidential, and whether the news media should be excluded from negotiations.
Getchell also said that he could make proposals but
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could not accept proposals, and that he might agree to something at the
bargaining able but that he reserved the right to change his agreement later.
38. Prior to the first day of hearing in this case on May 30, 1980,
Dickinson, Getchell, Anderson and Ruliffson were subpoenaed to attend the
hearing at the request of the Committee. These four teachers had been listed
as Association witnesses by the Association at the April 28, 1980 pre-hearing
conference. The teachers requested of Joy that they be granted leave to
attend the hearing pursuant to Article 13 of contract, which provided in
pertinent part:
"Any Teacher who is scheduled by the Committee and the
Association to participate during working hours in negotiations,
grievance proceedings, mediation, fact finding, arbitration, con-
ferences or meetings shall suffer no loss in pay thereby."
39. On May 27th, Joy sent a letter to Dickinson denying the requests for
leave on the ground that Article 13 was not applicable to prohibited practices
hearings. The letter suggests that the teachers apply for leave pursuant to
the personal business leave provision of the contract, which provided that
teachers will be granted two paid personal business days per year, to be
included in the 15 sick leave days per year granted to the teacher. Dickinson
protested this action in a letter to Joy on May 28th. None of the four
teachers applied for personal business leave, and all were present at the
May 30th hearing. Joy subsequently instructed that a day's pay be deducted
from these teacher's paychecks because they were absent from their teaching
responsibilities on May 30th. The Committee released the four teachers from
the subpoenas after the May 30th hearing, but continued to deduct a day's pay
from the paychecks of these teachers when they attended subsequent hearings
in this matter. The Association reimbursed the teachers for some if not all
of the days for which they lost pay.
40. In June, 1980, Ruliffson received her evaluation for the 1979-'80
school year. One of the statements contained in the evaluation says:
"Generally you follow procedures and support policy and regulation, but you
have occasionally forgotten a duty and resisted changes in policy, to the
point of getting insubordinate."
DECISION
The Association alleges that the Committee 1) violated 26 M.R.S.A.
964(1)(E) by meeting and consulting in bad faith about the change in the
kindergarten program,
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2) violated 26 M.R.S.A. 964(l)(A) and (B) by having Wells make a list of all
bargaining unit members present at the December 18, 1979 public meeting, 3)
threatened to discipline Dickinson, Getchell, and Anderson on February 14,
1980 in violation of 26 M.R.S.A. 964(1)(A), and 4) docked the pay of the
teachers who testified at the hearings of these cases in violation of 26
M.R.S.A. 964(1)(D). The Committee urges that the Association 1) met and
consulted, obtained the services of a mediator, and engaged in impact
bargaining in bad faith in violation of 26 M.R.S.A. 964(2)(B), 2) violated
26 M.R.S.A. 964(2)(C) by causing Ruliffson to engage in a work slowdown or
stoppage, and 3) interfered with the Committee in the selection of its
bargaining agent in violation of 26 M.R.S.A. 964(2)(A).
We find that the Committee committed prohibited practices by threatening
to discipline the Association officers in February, 1980, and by docking the
pay of teachers subpoenaed by the Committee to attend the May 30, 1980
hearing. The Association violated the Act by failing to bargain in good
faith during impact bargaining, and by causing Ruliffson to engage in a work
stoppage or slowdown. We dismiss all remaining allegations and order remedies
necessary to effectuate the policies of the Act.
I. The meet and consult sessions and impact bargaining. At issue is the
question whether either or both parties participated in the meet and consult
sessions and impact bargaining in bad faith. Resolution of this question
depends in part on the nature of the obligation to meet and consult imposed
by 26 M.R.S.A. 965(1)(C), which states that the public employer and the
bargaining agent are mutually obligated to negotiate in good faith with
respect to wages, hours, working conditions and contract grievance arbitration
"except that public employers of teachers shall meet and consult but not
negotiate with respect to educational policies . . ."[fn]1 The Association
does not dispute the fact that changes in a kindergarten program are matters
of educational policy, about which the Committee is obligated to meet and
consult but not negotiate. Similarly, the Committee does not contest the
proposition that it was obligated to negotiate about any impact on the
teachers' wages, hours and working conditions caused by changes in the
kindergarten program. See, eg., Superintending School Committee of Bangor v.
Bangor Education Association, 433 A.2d 383, 385 (Me. 1981).
_______________
1. Section 964(1)(E) states that a public employer is prohibited from
refusing to bargain collectively as required by Section 965, while
Section 964(2)(B) imposes the same prohibition on public employee
bargaining agents.
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The language of Section 965(1)(C) plainly establishes that the obligation
to meet and consult does not impose the same duties and limitations on school
committees as does the duty to bargain. By providing that public employers or
teachers shall meet and consult but not negotiate with respect to educational
policy, the Legislature clearly intended to make the meet and consult process
distinctly subordinate to and far less restrictive than the duty to bargain.
Thus, decisions concerning educational policy "should be made essentially uni-
laterally and by persons directly responsible to the people." City of Bidde-
ford v. Biddeford Teachers Association, 304 A.2d 387, 414 (Me. 1973).
Contrary to the Association's contentions, then, many of the substantive
concepts associated with the duty to bargain - such as the unilateral change
doctrine, the duty to make counterproposals, and the duty to attempt to
resolve differences - are inapplicable to the meet and consult process.
Section 965(1)(C) allows school committees to unilaterally change educational
policy without making counterproposals and without trying to resolve any
differences regarding the changes with a bargaining agent. Nothing said by
us in MSAD #44 Administrators Association v. MSAD #44 Board of Directors,
MLRB No. 77-27 (June 20, 1977), should be read to the contrary; that case
dealt only with the procedural requirements of the meet and consult process
and said nothing about any substantive duties imposed by the duty to meet and
consult.
The purpose of the meet and consult obligation is to ensure that school
committees consider their employees' comments and concerns before implementing
or changing educational policy. The duty to meet and consult thus is a
mechanism for insuring employee input in non-negotiable policy areas,
designed to further the Act's purpose of improving the relationship between
school committees and their employees. Several elements are necessary to
carry out the purpose of the meet and consult obligation:
1. Notice that a change in educational policy is planned must be
given to the bargaining agent, so that it can timely invoke
the meet and consult process if employees wish to comment on the
changes;
2. Pertinent information about the planned change must be provided
so that the bargaining agent and employees can understand the
change and make constructive comments about it.
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3. Actual meeting and consulting at reasonable times and places
about the planned change must occur upon receipt of a ten day
notice or other request to meet and consult by the bargaining
agent. A school committee is obligated to come to meet and con-
sult sessions with an open mind, to discuss the planned change
openly and honestly, and to listen to the employees' suggestions
and concerns.
4. Mature consideration must be given to the employees' input before
the change is implemented, and if any of the employees' comments or
concerns are meritorious, the school committee must decide in good
faith whether they can be accommodated.
Once a school committee has satisfied these elements of the duty to meet and
consult, it is free to implement or change the educational policy matter.
See, e.g., MSAD No. 43 Teachers Association v. MSAD No. 43 Board of Directors,
MLRB No. 79-42 (May 1, 1979).
We determine whether a party has met and consulted in good faith by
examining the totality of the party's conduct throughout the meet and consult
process. Evidence that a party has failed to satisfy the elements of the
duty to meet and consult or has attempted to delay or frustrate the meet and
consult process is evidence that the party has violated its obligation to
meet and consult.
A. The Committee's conduct during the meet and consult process.
Measured by these standards, the Committee's conduct throughout the meet and
consult process plainly satisfied its duty to meet and consult over the change
in the kindergarten program. The Association received timely notice that a
change in the program was contemplated. Dickinson, the President of the
Association, was present at the August 23, 1979 meeting at which the Committee
voted to support the idea of changing the program, and the Association sub-
sequently received a copy of the minutes of the meeting. Since Association
representatives attended all Committee meetings throughout the meet and con-
sult process and regularly received copies of the agendas and minutes of these
meetings, the Association was constantly on notice of the current status of
the plan to change the program. While it would have been preferable for the
Committee to tender written notice of the proposed change to the Association,
a step which the Association erroneously claims is required by the duty to
meet and consult, we cannot say on the basis of the record before us that the
Association was not provided with notice of the Committee's intentions.
The Association plainly was given adequate and timely notice of the
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plan.[fn]2
The Committee also satisfied its obligation to provide information about
the proposed program change. The Association requested at the November 19,
1979 meet and consult session that the Committee provide specific information
about the proposed changes. This information was given to the Association on
or about December 6th, prior to the next meet and consult session on
December 12th. As previously noted, the Committee also provided copies of
all agendas and minutes pertaining to Committee discussions and decisions
about the program change. Indeed, there is not a shred of evidence that the
Committee ever withheld or refused to provide information about the proposed
change. We therefore conclude that the Association's claims that the
Committee refused to provide information about the change are wholly
unsubstantiated.
The Committee more than satisfied its duty to meet at reasonable times
and places for discussions. The Committee met and consulted on November 7,
November 19, December 12, 1979, and on January 17, 1980 in the presence of a
state mediator. The Committee offered to meet again in its January 14th
letter to the Association. All aspects of the program change were
exhaustively discussed, the Association was informed of the Committee's
intentions, and the Association's suggestions and criticisms were taken into
account. Plainly there is no basis for saying that the Committee sought to
avoid discussions about its plans to change the kindergarten program.
Finally, the Committee obviously considered the Association's input and
in fact incorporated several of the Association's suggestions in its plan.
Indeed, the Committee delayed implementation of the program change twice -
from planned implementation dates in November 1979 and on January 2, 1980 to
actual implementation on January 21, 1980 - in order to receive and consider
the Association's input. At the end of the December 12 meet and consult
session, after the Association had presented its criticisms and recommenda-
tions regarding the kindergarten plan, the Superintendent said that the
Association had provided some food for
_______________
2. The Association's claim that the Committee breached the contract by fail-
ing to give written notice of the new kindergarten plan is not properly
before us. Our duty is to determine whether the Committee violated any
subsection of Section 964(1) of the Act, not whether the Committee
violated the contract. It is plain that the Committee's failure to give
written notice did not violate Section 964(1).
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thought and that he would take the matter up with the Committee. During
Christmas vacation, the Superintendent decided to propose to change the
original plan by incorporating Association suggestions that the kindergarten
be divided into two separate sections, that a second certified kindergarten
teacher be hired, and that the kindergarten be moved to another area of the
school. The Committee adopted the Superintendent's changes on January 3,
1980. These changes substantially modified the original plan and obviously
cannot be seen merely as a superficial attempt to accommodate the Associa-
tion's concerns.
The fact that the Committee implemented the changes in the kindergarten
program prior to engaging in impact bargaining does not mean that it violated
its duty to meet and consult. The duty to meet and consult does not include
the requirement that the employer wait until impact bargaining is completed
before implementing changes in educational policy; once the duty to meet and
consult has been satisfied, the change can be implemented. See, e.g., MSAD
No. 43 Teachers Association, supra. Were we to hold that the employer could
not implement educational policy matters until after impact bargaining was
completed, the practical effects of the duty to meet and consult and the duty
to bargain would be indistinguishable. This would be contrary to the plain
intent expressed in Section 965(1)(C) that the duty to meet and consult be
subordinate to the duty to bargain.
In short, we conclude that the Committee amply satisfied the elements of
its duty to meet and consult in good faith. Moreover, the evidence does not
show that the Committee attempted to delay or frustrate the process. We can-
not, of course, condone all of the Committee's actions during the meet and
consult process. For example, the Superintendent's October 26, 1979 response
to the Association's initial request to meet and consult, in which the Super-
intendent questioned whether the Association had truly requested to meet and
consult and requested certain information regarding Association internal
affairs, obviously was an attempt at petty harassment. The same is true of
the Superintendent's December 14, 1979 memorandum to kindergarten parents, in
which the Superintendent stated that the Association had no interest "in
improving your child's educational program this year." While these incidents
certainly can be construed as evidence that the Committee did not intend to
meet and consult in good faith, their weight is far overshadowed by the
considerable evidence showing that the Committee did in fact meet and consult
in good faith. We accordingly conclude that the Association's charge that
the Committee failed to meet and consult in good faith is meritless.
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B. The Association's conduct during the meet and consult process and
during impact bargaining. We are also satisfied that the Association met its
duty to meet and consult in good faith. While there is slight evidence that
the Association attempted to delay or frustrate the process, such as its Chief
Negotiator's refusal to provide the list of questions at the end of the first
meet and consult session, the record shows that the Association met and con-
sulted in a reasonable and timely fashion, asked legitimate questions and
sought relevant information, and provided its comments and recommendations
about the plan, albeit in mostly negative terms. While the meet and consult
process took an unusually long period of time - nearly 10 weeks - in which to
be completed, the facts that the Association demanded multiple sessions and
demanded a mediation session after the Committee had adopted some of the
Association's recommendations and finalized the plan do not establish that
the Association failed to meet and consult in good faith. The proposed
changes in the kindergarten program were significant, and the Association's
concerns about the changes were proper.
In particular, the Committee's argument that mediation cannot lawfully
be requested for a meet and consult session is meritless; Section 965(2)(B)
provides in part that mediation may be requested "in the case of disputes
affecting public employers, public employees, or their respective representa-
tives." While the Executive Director in most instances quite properly
declines to assign mediators to meet and consult situations, the statutory
language obviously permits a party to request a mediator for meet and consult.
Since the Association disagreed with the Committee's plans to change the
kindergarten program, a cognizable dispute existed for which the Association
properly requested mediation. Viewing the totality of the Association's
conduct throughout the meet and consult process, we conclude that the Asso-
ciation satisfied its Section 965(1)(C) obligation to meet and consult in
good faith.
We reach the opposite conclusion with regard to the Association's conduct
at the impact bargaining sessions beginning in March, 1980, however. Section
965(1)(C) required the Association to bargain in good faith with the
Committee. The test for deciding whether a party bargained in good faith is
whether the totality of the party's conduct indicates "a present intention to
find a basis for agreement." Waterville Teachers Association v. Waterville
Board of Education, MLRB No. 82-11 (Feb. 4, 1982). The Association's conduct
during impact bargaining plainly falls short of satisfying this standard.
-19-
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First, the Association would not agree during impact bargaining to
groundrules which the parties had used in past negotiations and to which the
parties had agreed in January, 1980 for use during upcoming contract negotia-
tions. The first impact bargaining session on March 27, 1980 was consumed
entirely by discussion about groundrules. While parties are not required to
agree upon negotiations groundrules, we have stressed in a number of cases
the importance of groundrules in the negotiations process. See, e.g.,
Westbrook Police Unit v. City of Westbrook, MLRB No. 78-25 (Sept. 5, 1978).
Among the matters about which the Association would make no agreements were
the number of persons who could attend bargaining sessions, whether matters
discussed during impact bargaining should remain confidential, and whether
the news media should be excluded from negotiations. The Association offers
no rational reason for its refusal to agree to groundrules which had always
before proven satisfactory, and we consider this refusal to be evidence that
the Association did not intend to reach agreement in the impact bargaining
process.
A second piece of evidence showing the Association's bad faith bargaining
is that its Chief Negotiator refused to make proper tentative agreements at
the bargaining table. Getchell, the Chief Negotiator, told the Committee's
negotiators that he could make proposals but could not accept proposals, and
that he might agree to something at the bargaining table but that he reserved
the right to change his agreement later. Getchell reneged on a tentative
agreement at one point in the negotiations. We have stated many times that a
negotiator must at the minimum be clothed with "sufficient knowledge, guide-
lines and authority to make tentative agreements." Fox Island Teachers Asso-
ciation v. MSAD No. 8 Board of Directors, MLRB No. 81-28 at 6 (April 22,
1981). The lack of such authority usually results in prolonging or frustrat-
ing negotiations. While Getchell may have been clothed with sufficient
authority to make tentative agreements, he plainly chose not to exercise his
authority. His refusal to make proper tentative agreements, subject only to
ratification by his principal party (the members of the Association), was
tantamount to not being authorized at all to make tentative agreements, and
thus is strong evidence of bad faith bargaining. See, e.g., Union River
Valley Teachers Association v. Trenton School Committee, MLRB Nos. 80-28, et
al. (May 30, 1980).
In short, the record shows that the Association violated Section 964(2)
(B) by failing to bargain in good faith during impact bargaining. We infer
that the
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Association wished to delay and prolong impact bargaining because of its
erroneous belief that the January, 1980, implementation of the new kinder-
garten program would not become lawful until after impact bargaining was
completed. If impact bargaining could be delayed for the remainder of the
1979-'80 school year, according to the Association's theory, then the new
program could not lawfully be implemented during that school year. This
theory caused the Association to violate its duty to bargain in good faith.
We will order the Association to cease and desist from refusing to bargain in
good faith during impact bargaining.[fn]3
II. The December 18, 1979 public meeting. The Association's contention
that the Committee violated Section 964(1)(A) and (B) when school principal
Wells listed the names of the teachers present at the December 18th meeting
has no merit.[fn]4 This was a public meeting called by the Association for
the purpose of expressing its views and concerns about the proposed changes
in the kindergarten program. The Committee received an invitation to attend
the meeting, and the Superintendent asked Wells, who had a child in kinder-
garten, to attend the meeting and report on what was said. Wells asked for
and received permission from Dickinson, the Association President, to take
notes. Wells noted the number of people present, the names of the teachers
and aides and some of the parents who attended, and the main points made
during the presentations. Kelley, the MTA UniServ Director, sat next to Wells
throughout the meeting and observed the notes he took. After the meeting
Wells went
_______________
3. Since there is no evidence that Respondents Maine Teachers Association or
Roger Kelley had anything to do with the Association's failure to impact
bargain in good faith, we will not include these two Respondents in our
cease and desist order.
4. Section 964(1)(A) prohibits public employers from interfering with,
restraining or coercing employees in the exercise of rights guaranteed in
Section 963. Section 963 states:
"No one shall directly or indirectly interfere with, in-
timidate, restrain, coerce or discriminate against public em-
ployees or a group of public employees in the free exercise
of their rights, hereby given, voluntarily to join, form and
participate in the activities of organizations of their own
choosing for the purposes of representation and collective
bargaining, or in the free exercise of any other right under
this chapter."
Section 964(1)(B) provides that public employers are prohibited from
encouraging or discouraging membership in any employee organization by
discrimination in regard to hire or tenure of employment or any term or
condition of employment.
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to the Superintendent's house and reported on who had given presentations and
on what had been said. Wells did not show his notes to the Superintendent or
to anyone else on December 18th or anytime thereafter. There is no evidence
that the notes were used to harass or retaliate against any teacher.
Employer surveillance of employees engaged in union activities consti-
tutes unlawful interference with the free exercise of the employees' organiza-
tional and representational rights. See, e.g., Teamsters Local 48 v.
University of Maine, MLRB Nos. 78-16, et al. at 13 (June 29, 1979). Such
surveillance is unlawful "whether frankly open or carefully concealed." NLRB
v. Collins & Aikman Corp., 146 F.2d 454, 455 (4th Cir. 1944). Whether an
employer engages in unlawful surveillance depends on the facts of the case,
however, and the facts of this case simply do not sustain the surveillance
allegation. The Committee was invited to attend the meeting, and Wells, a
kindergarten parent, attended openly, asked for and received permission to
take notes, and was watched himself by an Association representative while
he took notes. Wells did not show the notes to anyone else, and the notes
were not used to harass or retaliate against any Association member.
In view of these facts, we conclude that Wells was not engaged in unlawful
surveillance at the December 18th meeting. See, e.g., Osco Drug, Inc., 237
NLRB 231, 234 (1978).
III. The Superintendent's February 14, 1980 letters. The Association's
charge that the Superintendent violated Section 964(l)(A) by sending letters
threatening disciplinary action to 3 employees who were also Association
officials is fully supported by the record. The letters, dated February 14,
1980, were sent to Dickinson, the Association President, Getchell, the Chief
Negotiator, and Anderson, the Grievance Chairperson, and state that certain
of their actions were in violation of the contract and that disciplinary
action would be initiated if any other violations occurred.
The letters to Dickinson and Getchell state that both violated the con-
tract by conducting Association business while school was in session, by doing
such things as filing a grievance with the principal, putting mail in the
teachers' mailboxes, delivering a memorandum to the Superintendent, and making
phone calls. All of these activities previously had been allowed during a
teacher's non-instructional time, and the Superintendent had not previously
brought any of the incidents, two of which allegedly occurred in October,
1979, to the employees'
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attention. The letter to Anderson states that she violated the contract by
bypassing the Superintendent when she notified the Committee Chairman of a
grievance. This allegation is extremely petty since Anderson sent a copy of
the notice to the Superintendent at the same time she sent the notice to the
Chairman. None of the employees were disciplined, and the letters apparently
were not placed in the employees' personnel files.
Threats that employees will be disciplined if they engage in union
activities constitute unlawful interference, restraint and coercion of the
employees in the free exercise of their protected Section 963 rights. See,
e.g., First Lakewood Associates v. NLRB, 582 F.2d 416, 420 (7th Cir. 1978).
Here the threats of discipline were expressly directed at the 3 employees'
activities as Association officials. The purported basis for the threats of
discipline - that the employees' activities were in violation of the con-
tract - is pretextual, for the activities alleged to be violations in the
letters to Dickinson and Getchell previously had been allowed during non-
instructional time, while the incident alleged in Anderson's letter is
extremely trivial. Moreover, two of the "violations" alleged in Getchell's
letter occurred in October, 1979, some 4 months prior to the Superintendent's
February letters, yet Getchell had not been warned about the "violations" at
the time they allegedly occurred. Viewing the letters in context, we con-
clude that they are not legitimate attempts to warn the employees about
contract violations but rather are a direct effort to harass and intimidate
the employees in the performance of their Association duties. We infer that
the Superintendent wished to retaliate against the Association because of its
February 1st vote of no confidence in the school administration, and conclude
that the letters violated Section 964(1)(A). We will order the Committee to
cease and desist from threatening employees with discipline because of their
Association activities, and to take the affirmative action of removing the
letters as well as any references to the letters from the three employees'
personnel files, if the letters or any references to them are contained in
the files.
IV. The docking of salaries. We conclude that the Committee violated
Section 964(1)(D) by docking the salaries of those teachers who were
subpoenaed by the Committee to attend the hearing in this case on May 30,
1980.[fn]5 Dickinson,
_______________
5. Section 964(1)(D) states that a public employer is prohibited from dis-
charging or otherwise discriminating against an employee because he has
signed or filed any affidavit, petition or complaint or given any
information or testimony pursuant to the Act.
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Getchell, Anderson and Ruliffson were listed by the Association as witnesses
at the pre-hearing conference, and all four were subpoenaed by the Commit-
tee to attend the first day of hearing on May 30th. The teachers requested
that they be granted leave to attend the hearing pursuant to Article 13 of
the contract, but the Superintendent denied the requests and suggested that
the teachers apply for leave pursuant to the contract's personal leave
provision. None of the teachers applied for personal business leave, and all
four attended the May 30th hearing under the Committee's subpoenas. The
Superintendent subsequently ordered that a day's pay be deducted from the
four teachers' paychecks because they were absent from their teaching
responsibilities on May 30th. The Committee released the four teachers from
the subpoenas after the May 30th hearing, but continued to deduct a day's pay
from the paychecks of teachers who attended subsequent hearings. The Asso-
ciation reimbursed the teachers for some if not all of the days for which
they lost pay.
Section 964(1)(D) protects employees involved in any stage of a Labor
Relations Board proceeding from a wide variety of discriminatory actions by
the employer. See, e.g., NLRB v. Scrivener, 405 U.S. 117, 121-125 (1972).
This is particularly true with regard to employees who have been subpoenaed
to attend hearings as witnesses; the employer must give such employees a
reasonable opportunity to apply for the type of available leave which the
employees prefer, NLRB v. Western Clinical Laboratory, Inc., 571 F.2d 457,
460 (9th Cir. 1978), and the employer's general obligation with respect to
subpoenaed employees "is one of noninterference, nonrestraint, and noncoercion
as to such employees' right and obligation to attend scheduled hearings."
Walt Disney World, Inc., 216 NLRB 836, 837 (1975).[fn]6
_______________
6. Thus, if some type of paid leave pursuant to the collective bargaining
agreement or the employer's rules and policies is available to the sub-
poenaed employee, the employer is obligated to grant the employee paid
leave to attend the hearing. Its refusal to do so would constitute
unlawful discrimination against the employee for participating in a Board
proceeding. If for any lawful reason no paid leave is available to the
employee, then the employee must look to the subpoenaing party for salary
reimbursement. Pursuant to Section 968(6) of the Act and Rule 45(C) of
the Maine Rules of Civil Procedure, a subpoenaing party is required at a
minimum to pay a witness fee of $10.00 per day and a mileage fee of 10
cents per mile round trip to each person it subpoenas. 16 M.R.S.A. 251.
If the subpoenaing party fails to tender the proper amount of the witness
and mileage fees, then the subpoena has not been properly served and the
subpoenaed person is under no obligation to attend the hearing. 16
M.R.S.A. 253; Pease v. Bamford, 96 Me. 23, 51A. 234, 235 (1901).
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An employer is not obligated by Section 964(1)(D) to pay the wages of its
employees subpoenaed by another party to the proceeding, however, for such a
rule would improperly require that the employer subsidize the witnesses of an
opposing party. See, e.g., General Electric Co., 230 NLRB 683, 684-685
(1977). On the other hand, an employer is required by Section 964(1)(D) to
pay the wages and mileage fees of employees subpoenaed or otherwise compelled
to attend the hearing by the employer; otherwise, the employer would unjustly
"economically disadvantage" the employees for appearing at the hearing. See,
e.g., Howard Manufacturing Co., 231 NLRB 731, 732 (1977); MSAD #45 v. MSAD #45
Teachers Association, MLRB No. 82-10 (Jan. 12, 1982) (school committee
required that the association subpoena the teacher witnesses and then docked
the teachers' pay).
Applying these principles to the case at hand, it is clear that the
Committee violated Section 964(1)(D) by docking the pay of the 4 teachers
whom it subpoenaed to attend the May 30th hearing. The Committee compelled
these teachers to attend the hearing, and then docked their pay because they
were absent from their teaching responsibilities. That the teachers were
listed as Association witnesses at the pre-hearing conference is immaterial;
the subpoenas compelling the teachers to attend were issued at the Committee's
request. We find that the Committee did not violate Section 964(1)(D) when it
continued to dock the pay of teachers who attended the hearings subsequent to
May 30th, however. The Committee released the teachers from its subpoenas
after the May 30th hearing and, since it is not clear whether Article 13 of
the contract applies to Labor Board proceedings, we cannot say that the
Superintendent violated Section 964(1)(D) by refusing to grant paid leave
pursuant to Article 13.[fn]7 The teachers did not apply for leave pursuant to
_______________
7. Article 13 of the contract provided:
"Any teacher who is scheduled by the Committee and the
Association to participate during working hours in negotiations,
grievance proceedings, mediation, fact finding, arbitration,
conferences or meetings shall suffer no loss in pay thereby."
If the Association believed that the Superintendent violated Article 13
by denying the leave requests, its remedy obviously was to grieve the
denials. As we have previously noted, it is not our task to interpret
the terms of the parties' collective bargaining agreement. If it was
clear that Article 13 applied to Labor Board hearings, however, then we
would find that the Superintendent violated Section 964(1)(D) by refusing
to grant paid leave pursuant to that Article.
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any other provision of the agreement, so there is no evidence that the Super-
intendent improperly denied paid leave or otherwise attempted to discriminate
against the teachers who attended the hearings after May 30th.
We will order that the Committee cease and desist from discriminating
against teachers whom it compels to attend Board hearings. In order to make
the four teachers whole for the day's pay they lost, we will order the
Committee to reimburse Dickinson, Getchell, Anderson and Ruliffson the
salaries which they lost for non-attendance at school on May 30th, plus
interest. Interest is to be computed on the last day of each calendar quarter
or portion thereof on the salary owed to each teacher, at a rate of 12% from
May 30, 1980 to January 31, 1982 and at a rate of 20% as of February 1, 1982.
See, e.g., Teamsters Local 48 v. Baker Bus Service, Inc., MLRB No. 79-70
(Jan. 25, 1982). If the Association has reimbursed these teachers for the
day's salary they lost on May 30th, then the Committee must pay the total
amount of salaries and interest owed directly to the Association. The reme-
dies we order are necessary to effectuate the policies of the Act.
V. Ruliffson's refusal to help plan for the new kindergarten program.
We find that Ruliffson's refusal, instigated by Dickinson and Roger Kelley,
to assist with the planning for the new kindergarten program constituted a
blatent violation of Section 964(2)(C). Dickinson and Kelley, the Maine
Teachers Association employee who advised the Association, advised Ruliffson,
the kindergarten teacher, in October, 1979 that she should not help plan the
changes in the program but should instead let the Association handle the
issue of changing the program. Ruliffson accordingly refused on October 25,
1979 to meet with the Superintendent and Carmi Wells, the elementary school
principal, to discuss the program.
In November, 1979, Ruliffson refused to help plan for the new program and
was ordered in a note dated November 28th from Wells to submit a report on the
details of the new program by November 30th. On November 29th, Dickinson sent
the Superintendent a letter stating that the principal's order to Ruliffson
was inappropriate and improper. Ruliffson also stated in a note to Wells on
November 29th that she would comply with his directive "when the time is
appropriate." On November 30th, Kelly told Wells over the telephone that
Ruliffson was prohibited by the law from discussing the kindergarten proposal.
Wells met with Ruliffson and Getchell during
_______________
8. Section 964(2)(C) prohibits public employees and public employee organiza-
tions from engaging in work stoppages, work slowdowns, and strikes.
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the afternoon of November 30th. Shortly before Ruliffson went to the meeting
she was instructed in a note from Dickinson not to discuss specific issues
with Wells. The Superintendent and principal subsequently decided not to
discipline Ruliffson for her refusal to plan the new program because they
believed she was caught in the middle of a dispute between the Association
and the Committee.
Ruliffson's refusal to help plan the new program obviously constitutes a
work stoppage or slowdown within the meaning of Section 964(2)(C). She was
the kindergarten teacher, and planning for changes in the kindergarten program
clearly was a proper duty for her to perform. Dickinson's and Kelley's notion
that the meet and consult process somehow excuses an employee from helping
plan for implementation of educational policy is pure nonsense; the Associa-
tion has cited no precedent nor even come forth with a rational theory which
would support such a proposition. An employee is required to perform all
duties preparatory to implementation of education policy during the meet and
consult process, and any refusal to do so constitutes an illegal job action.
The Committee's threats to discipline Ruliffson and the statement in her
evaluation that she has resisted changes in policy to the point of getting
insubordinate therefore were wholly warranted. Indeed, the Committee would
have been entirely justified in disciplining Ruliffson for her job action.
Since the job action resulted from the advice and instructions of
Dickinson and Kelley, they too are responsible for the violation. Kelley's
employer, the Maine Teachers Association, also is responsible for Kelley's
improper advice, just as a school committee is responsible for its superin-
tendent's actions. We conclude that Ruliffson's job action violated Section
964(2)(C), and that Kelley and the Maine Teachers Association are partially
responsible for the violation. We will order these respondents to cease and
desist from causing any employee to refuse to help plan for changes in educa-
tional policy or to otherwise engage in a work stoppage or slowdown.
VI. The vote of no confidence in the administration. The Committee's
charge that the Association violated Section 964(2)(A) by attempting to inter-
fere with the Committee's selection of its bargaining agent is not supported
by the record.[fn]9 The only evidence which the Committee points to in
support of its conten-
_______________
9. Section 964(2)(A) provides in pertinent part that public employee organi-
zations are prohibited from interfering with, restraining or coercing
public employers in the selection of their representatives for purposes
of collective bargaining.
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tion is the Association's February 1, 1980 resolution expressing a lack of
confidence in the leadership and educational policies of the Superintendent
and the elementary and high school principals. The Committee considered this
resolution at one of its meetings and passed a vote of confidence in the
administrators. The resolution was well within the rights of the Association
protected by the Act and the United States Constitution, and cannot be con-
strued as an attempt to interfere with the Committee's selection of its
bargaining representative. We will dismiss the Committee's charge.
ORDER
On the basis of the foregoing findings of fact and discussion, 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), it is hereby ORDERED:
1. That the Southern Aroostook Community School Committee, and its
representatives and agents cease and desist from:
a) interfering with, restraining or coercing teachers in the
free exercise of their Section 963 rights by threatening
to discipline them because of their Association activities.
b) discriminating against any teacher who is involved in any
way in a Labor Relations Board proceeding.
2. That the Southern Aroostook Community School Committee, and its
representatives and agents, take the following affirmative actions
necessary to effectuate the policies of the Act:
a) remove from the personnel files the February 14, 1980 letters
threatening discipline, as well as any reference in the per-
sonnel files to these letters, issued to Harold Dickinson,
John Getchell, and Mary Ann Anderson.
b) pay to Harold Dickinson, John Getchell, Mary Ann Anderson, and
Lois Ruliffson the salaries due them for May 30, 1980 plus
interest computed in the manner set forth in this Decision.
If the Association has reimbursed these teachers for the
salaries they lost on May 30, 1980 then the Committee shall
pay the total amount due for salaries and interest directly
to the Association.
3. That the Southern Aroostook Teachers Association, and its agents,
members and bargaining agents, cease and desist from refusing to
bargain in good faith over the impact of changes in educational
policy.
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4. That the Southern Aroostook Teachers Association, the Maine-
Teachers Association, and Roger Kelley, and their agents,
members and bargaining agents, cease and desist from causing
any teacher employed by the Committee to refuse to help plan
for changes in educational policy or to otherwise engage in
a work stoppage or slowdown or any other type of job action.
5. All other allegations and charges made by the parties are
hereby dismissed.
Dated at Augusta, Maine, this 14th day of April, 1982.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Harold S. Noddin
Alternate Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)
(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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