STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-49
Issued: November 18, 1980
___________________________________________
)
THE TEACHERS' ASSOCIATION OF S.A.D. #49, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
THE BOARD OF DIRECTORS OF M.S.A.D. #49 )
and EVERARD NICHOLSON, SUPERINTENDENT OF )
SCHOOLS, )
)
Respondents. )
___________________________________________)
This is a proceeding on a prohibited practice complaint filed with the
Maine Labor Relations Board (Board) pursuant to Section 968(5)(B) of the
Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A. 968(5)(B)
(Supp. 1980). The Teachers' Association of S.A.D. #49 (Union) filed its
complaint on May 14, 1980, alleging that the Board of Directors of M.S.A.D.
#49 (Directors) and Superintendent Everard Nicholson had violated 26 M.R.S.A.
964(1)(A), (C), and (E) releasing two particular newsletters and by sending
a letter to each individual teacher concerning the ongoing collective
bargaining without prior consultation with the Union. The Respondents filed
an answer on June 4, 1980, contending that these communications were factual,
appropriate, and innocuous statements of fact well within the bounds of free
speech and far from the type of coercive or interfering conduct that could
violate these statutory subsections.
Alternate Chairman Donald W. Webber held a prehearing conference on
June 23, 1980, after which he issued a Pre-Hearinq Conference Memorandum and
Order, dated June 26, 1980, the contents of which are incorporated herein by
reference. The parties stipulated that all factual allegations were true and
agreed to submit the matter to the Board on the pleadings, exhibits and
written argument. The parties duly filed appropriate briefs. The Union was
represented by F. Stewart Kinley, UniServ Director; the Respondents by
Alton C. Stevens, Esq.
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JURISDICTION
The Union is a public employee organization and bargaining agent for a
unit of about 150 certified professional employees (mostly teachers) of the
Directors within the meaning of 26 M.R.S.A. 968(5)(B) and 962(2). The
Directors and Superintendent Nicholson are public employers within the meaning
of 26 M.R.S.A. 962(7). The Board accordingly has jurisdiction to issue this
decision and order pursuant to 26 M.R.S.A. 968(5)(A) through (C). The
jurisdiction of the Superior Court lies in 26 M.R.S.A. 968(5)(F).
FINDINGS OF FACT
Upon a preponderance of the evidence received, we find the following:
(1) The Union and the Directors are parties to a three-year collective
bargaining agreement ending on August 31, 1980 (the Agreement). Nicholson is
a signatory of this Agreement on behalf of the Directors. He was not a member
of the Directors' bargaining team when collective bargaining for a successor
agreement began in late 1979. One of the initial "ground rule" agreements
reached in November 1979 was: "No new items to be introduced after package
[of initial proposals] has been presented."
(2) Bargaining continued during 13 negotiation sessions and was not yet
complete on June 23, 1980, when the stipulated facts were submitted. The
first of the three focal incidents took place on February 29, 1980, when
Superintendent Nicholson included comments about the bargaining in his regular
newsletter to all staff issued on that day, identified as "Newsletter 80-10."
Among the 13 items in the newsletter, two related to the bargaining:
"5. Negotiations
I take this opportunity to remind everyone that I take the budget
to the Board [of Directors] on April 6. Prudence dictates tha
negotiations with respect to salaries be completed by the last
week in March.
It is never satisfactory for a superintendent to have to put
'guesstimates' of salaries into a budget. They usually displease
everybody. I hope that all employees recognize the importance of
finalizing these matters without delay."
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"10. Major Medical
I have drawn to Mr. Bacon's attention my belief that your
present major medical plan is deficient. I recommend your
looking at Blue Alliance, which is a projection of BX/BS, among
others. John and I will see what we can do."
It has been the Superintendent's practice to send frequent newsletters to all
staff to keep them informed of those items of a broad variety that he
considers noteworthy.
(3) On March 20, 1980, the Union conducted a ratification vote on the
tentative successor agreement that was reached in bargaining. The agreement
was unanimously rejected. The Union then invoked statutory fact-finding
procedures on a form dated March 27, 1980.
(4) On April 11, 1980, Nicholson issued "Newsletter #80-12" which
included among eight items, the following:
"3. Negotiations
It is my fervent hope that a happy and satisfactory conclusion
will be brought quickly to the negotiations process. Please
know that I shall start budget reviews with the 500 Series
(Transportation) at Board Level, to give everyone breathing
space, time for reflection, and opportunity to calculate indi-
vidually actual raise and per cent by subtracting the amount of
your present step from the next step of the proposed scale.
4. Budget
We are right into the budget season in a very difficult year. I
have presented a careful proposal to the Board with very little
opportunity for cutting. It is very easy to criticize your
Board. Directors, as well as I, need both your support and your
encouragement. Imagine walking in their shoes."
(5) On May 1, 1980, Nicholson issued letters addressed to each of the
bargaing unit members. The body of the letter was as follows:
"As you probably know, a fact-finding hearing, initiated by representa-
tives of the Teachers Association, will meet on May 16, 1980. Normally,
on or about May 1, I would have sent you a salary statement for next
year, based upon agreements for 1980-1981.
Your basic salary, exclusive of payments for recognized additional re-
sponsibilities, is $_____________ for this year. As of now, this is
the only figure that can be indicated. The last position of the Board
in negotiations would have given you $______________, an increase of
$____________, or _________% over your current basic salary.(*)
Please return one signed copy through your principal. If you believe
there is an error, indicate the error on the rear side.
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Thank you.
Yours sincerely,
s/
Everard Nicholson
(*) See Salary Scales - over Superintendent of Schools"
The lower half of the letter, below dotted lines, included a space to indicate
"Checked and found correct" or ". . . incorrect." There were lines for a
signature and a date. It was also indicated at the bottom that the original
of the letter was being sent to the teacher and a copy to the Bookkeeper.
(6) Two such letters are exhibits. The blank spaces in each were filled
with a specific salary figure for the teacher, the present salary, and the
one proposed by the Directors in bargaining for the following year. For one
teacher this represented a 4% increase; for the other an 8.2% increase. This
difference reflected the fact that one teacher was at the top of the scale
based on experience while the other was not and thus could advance a step on
the scale. The range for all teachers was from 3.8% to 10.9% depending on
experience and education.
(7) This letter was substantially similar to a "Salary Statement" that
had been issued on May Ist of the previous year. Such salary statements had
apparently been issued on May lst of each year for a number of preceding
years. The specific form used on May 1, 1979 was as follows:
"SALARY STATEMENT
We are pleased to confirm that your employment with School
Administrative District No. 49 as _____________________________
will continue for Academic Year 1979-1980, consistent with laws
relating to public schools in the State of Maine.
Your regular professional salary for 1979-1980 will be
$__________________ per annum, as calculated from the Agreement
for 1979-1980 between the Board and the Teachers' Association.
(See scales overleaf).
An additional sum of $______________ is beinq paid for the
following responsibilities or services: _______________________
_______________________________________________________________.
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Please return one signed copy through your principal. If
you believe there is an error, please indicate the error in an
attached memorandum. Thank you.
Yours sincerely,
Everard Nicholson
Superintendent of Schools"
The items listed below a dotted line on the form were identical in substance
to the 1980 letter.
(8) On May 1, 1980, when Union negotiation team member Michael Quigley
received his copy of this letter, he immediately called Nicholson and objected
to the letter. He requested that Nicholson recall all the letters. Nicholson
refused although they had a lengthy discussion. Quigley advised Nicholson
that he, in his capacity as negotiator and chairman of the Grievance
Committee, would ask all teachers not to sign or return the letters to the
principals, but to return a different letter created by the Union that would
be substantially similar but which would exclude the paragraph on fact finding
and the reference to the Board of Directors' last salary proposal. Nicholson
responded that he would consider Quigley insubordinate if he did so. Quigley
put his objections in writing on the same day in a letter to Nicholson
complaining that the individual form had seriously interfered with collective
bargaining and that the form was susceptible to a variety of interpretations,
including intimidation, and that it had "an air of finality" with regard to
the Directors' last salary proposal. Nicholson also wrote a letter to Quigley
on the same day explaining and confirming his motives as positive. He stated,
among other things, that his motive was to avoid teacher insecurity that would
arise if no salary statement were issued. "I wanted the teachers to have
assurance in writing of employment next year."
(9) The bargaining dispute was submitted to fact-finding and a fact-
finding report was pending at the time this case was submitted to this Board.
DISCUSSION
The Union contends (1) that communicating directly with individual
members of the unit about bargaining matters, without prior consultation, was
an inter-
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ference with proper collective bargaining, and (2) that this communication was
an attempt to bargain directly with individuals while bypassing the bargaining
agent and therefore a refusal to bargain in violation of Section 964(1)(E) of
the Act. It also alleges (3) that members' rights have been interfered with
in violation of Section 964(1)(A).[fn]1 The Directors counter that the
newsletters are innocuous statements about various facts which the Superin-
tendent considered noteworthy for his staff, and that the May lst letter is
not threatening in nature or tone. Moreover, they argue, the information
communicated was true and protected free speech.
We conclude that sending the two newsletters was not a prohibited
practice, but that the letter of May 1, 1980, to each of the teachers violates
Section 964(1)(A) and (E) of the Act.
I. The newsletters
The Union's first contention is an extreme position which is simply
unsupportable. Once bargaining has commenced the public emplover is not
prohibited from communicating directly with individual bargaining unit
members. While there are some obvious restraints on this communication, no
law even flirts with a blanket prohibition of such. In contrast, an expres-
sion of opinion which is noncoercive in nature is of constitutional dimension.
See, N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 62 S. Ct. 344
(1941); N.L.R.B. v. General Electric, 418 F.2d 736, 72 LRRM 2530, cert.
denied, 397 U.S. 965 (1970).[fn]2
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1. Although the Union also alleges a violation of Section 964(1)(C), it is
plain that this claim has no merit. We have held on numerous occasions
that this subsection is directed at prohibiting public employer support
for and domination and control of public employee organizations. See,
e.g., Winthrop Educators Association v. Winthrop School Committee, MLRB
No. 80-05 (Feb. 8, 1980).
2. The constitutional standard for speech was codified by an amendment to the
NLRA, Section 8(C), which stated, in pertinent part:
It is provided that expressing any views, argument, or opinion
or the dissemination thereof . . . is not to constitute or be
evidence of an unfair labor practice if such expression con-
tains no threat of force or reprisal or promise of benefit.
29 U.S.C. 158(C).
This standard, whether explicit or not, is constitutionally required in
situations arising under the Maine labor relations acts despite the
absence of a parallel to Section 8(C).
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The Superintendent's newsletters were not just innocuous, however.
First, any direct communication to individuals about the bargaining is likely
to create resentment among the Union officials at a minimum and perhaps create
division within the membership. Second, the comments about the inadequacy of
the major medical insurance, at a time when improvements in that plan could
not be raised by the Union because of the ground rule, could have the result
of stirring up discontent. Third, the comments in both newsletters about the
need to finalize the contract quickly can be viewed as implying that certain
benefits or opportunities will otherwise be lost. Fourth, the call for
support and encouragement of the Board of Directors can be seen as an attempt
to divide the loyalties of the teachers. It is clear that Nicholson's conduct
in this regard is a type of meddling which makes it more difficult for the
Union to compromise at the bargaining table and is likely to harden resistance
and foment antagonism.
Despite our reservations concerning the potential ill effects of these
comments, we do not find that they rise to the level of coercion or threat of
reprisal when viewed objectively. Indeed, as the Directors have argued,
there are many cases where conduct of a much stronger nature have not been
found to violate the National Labor Relations Act. See, e.g., N.L.R.B. v.
Citizen-News Co., 134 F.2d 962 (9th Cir. 1943) (disparagement of bargaining
agent and criticism of use of outside negotiators). Accordingly, we dismiss
this aspect of the complaint.[fn]3
II. The May 1st letters
In contrast, the individual letters were an attempt to create the
impression of bargaining directly with individuals in violation of Section
964(1)(E) and also an interference with Section 963 rights in violation of
Section 964(1)(A).
A. Direct bargaining.
There are several relevant legal maxims to consider. First, it is
permissible, for example, for an employer to issue individual contracts to
members of a bargaining unit provided that these contracts are consistent
with the terms of a coexistent collective bargaining agreement. See, J. I.
Case v. N.L.R.B., 321 U.S.
_______________
3. Member Legge dissents from Part I. He would find a violation because
these newsletters go too far past the simple expression of opinion and
are coercive.
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576, 64 S. Ct. 576 (1944). Second, it is a violation for an employer to
bargain directly with an individual member because it bypasses the bargaining
agent. E.g., Teamsters Local Union No. 48 v. City of Calais, MLRB Case No.
80-29 (May 13, 1980); Hearst Corp., 230 NLRB No. 29, 95 LRRM 1274 (1977).
And third, there is a general duty to bargain in good faith with the bargain-
ing agent. 26 M.R.S.A. 965(1)(C).
This factual situation is one that is difficult to neatly reconcile with
these legal principles, however. For one, althouqh the import of this docu-
ment is unclear, it does not appear to be the clear individual contract that
the salary statements of May 1, 1979, were. The 1979 salary statement clearly
offered a signed confirmation of employment for the following school year.
It also stated a specific salary for the period. The 1980 letter, in
contrast, has some minor changes which makes the document ambiguous. It
states that it is not a salary statement based upon a collective bargaining
agreement for the following year. It also utilizes conditional language, for
example, "As of now." Overall, the exact import of the letter is vague.
The May lst letter is also not the type of conduct typically found
violative of the prohibition of direct bargaining with an individual. There
is no face-to-face meeting or dialogue, and no established collective agree-
ment from which discussed terms could vary.
We find that this letter violates Section 964(1)(E) for another reason.
It is an attempt to create the impression that the School Committee was
bargaining directly with individual members of the bargaining unit. In
essence we find this letter, in all the circumstances, including the inter-
ference discussed in Part II, B., to be evidence of failure to bargain in
good faith with the union. We rely primarily on the holding of the court in
a case involving the parallel section of the National Labor Relations Act,
Section 8(a)(5), 29 U.S.C. 158(a)(5), in International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America v. N.L.R.B.,
455 F.2d 1357, 1366, 79 LRRM 2031 (D.C. Cir. 1971). In this case the N.L.R.B.
was sustained in its finding that the employer had violated Section 8(a)(5)
by distributing agreements without prior notice to the union despite the fact
that the agreements were lawful. The purpose of the distribution, however,
was to create the impression that terms of employment had been altered even
though they had not.
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We have similar concerns about the May lst letters. First, the letter
has the appearance of a contract offer. It was similar to the past year's
offers made on May lst. It required that the teacher indicate whether what
was stated was correct. And it required that the teacher sign and return the
document. Thus, the letter had the appearance of significance. That is, that
the individual teachers would be agreeing to employment terms that would bind
them. As well, those terms would be less than what the parties would ulti-
mately agree upon.
This false impression was a calculated one. All the trappings of past
contracts had been retained. Thus, we conclude that, while this does not
constitute actual bargaining which bypasses the bargaining agent, it was
calculated to create that impression and to stir up uncertainty and confusion
within the bargaining unit. We further conclude that this is sufficient
evidence of lack of good faith in all the circumstances to constitute a
violation of Section 964(1)(E) by the Directors through their official
secretary and agent, Superintendent Nicholson.
In reaching this conclusion, we recognize that the statutory prohibitions
against work stoppages, slowdowns, and strikes, 26 M.R.S.A. 964(2)(C), have
eliminated the major self-help method by which a union can maintain its
strength when it perceives a threat to its status such as it clearly did in
this case. While the bargaining agent cannot expect to be insulated from
pressures in bargaining, see Sanford School Committee v. Sanford Teachers'
Association, MLRB No. 78-34 (Oct. 19, 1978), an employer must not seek to
capitalize on this relative weakness by engaginq in a tactic such as employed
here.
B. Interference with bargaining rights.
We also find that the May lst letter independently violates Section 964
(1)(A) because it is conduct which, it may reasonably be said, tends to inter-
fere with the free exercise of employee rights under the Act. Cooper
Thermometer Co., 154 NLRB 502, 503 n.2, 59 LRRM 1767 (1965). A number of
factors lead us to this conclusion. First, it seeks to focus blame for the
delay in reaching a successor agreement on the union although an impasse is a
two-sided situation. Second, it is a misleading (use of the word "only") and
incomplete picture of the impasse in that it does not indicate the union's
last position. Third, it has an air of finality stemminq from the use of the
verb tense in the phase "The last position
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of the [Directors] would have given you . . . ." This harbors an implied
threat to an individual that the advancement in conditions of employment
represented by the Directors' last position may be lost if the Union or
individuals do not agree to the Directors' last position. Fourth, we find
that this letter was intended to disrupt the support for the bargaining agent
as indicated above.
III. Conclusion
Accordingly, we will direct a cease and desist order for similar conduct.
In order to restore the situation to that which would have been obtained had
the unlawful activity not taken place, Sanford Highway Unit of Local 481,
Council No. 74, (AFSCME) v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980),
we will also direct that the Directors return each of the signed copies of
the May lst letters which had been submitted by bargaining unit members.
ORDER
Pursuant to Section 968(5) of the Municipal Public Emplovees Labor
Relations Law (Act), the Maine Labor Relations Board hereby orders that the
Board of Directors of M.S.A.D. #49 and Everard Nicholson, Superintendent of
Schools, and their officers, agents, and successors shall:
1. Cease and desist from: (a) refusing to bargain collectively with the
Teachers' Association of S.A.D. #49 as required by Section 964(1)(E) and
Section 965(1)(C) of the Act by attempting to create the impression of
bargaining directly with individual members of the bargaining unit; and (b)
interfering with, restraining or coercing employees in the exercise of the
rights guaranteed in Section 963 in violation of Section 964(1)(A) of Act by
making threats or implied threats directly to bargaining unit members of loss
of advantageous conditions of employment if the Union does not agree to the
Directors' bargaining proposals.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: (a) return any of the letters of May 1,
1980, at issue herein that are still in its possession by mailing them to
each of the individuals in this bargaining unit; and (b) notify the Executive
Director in writing within twenty days from the date of this decision what
steps have been taken to
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comply with this order.
Dated at Augusta, Maine, this 18th day of November, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Gary F. Thorne
Alternate Chairman
/s/___________________________________
Wallace J. Legge
Employee Representative
/s/___________________________________
Don R. Ziegenbein
Employer 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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