STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-28
Issued: April 22, 1981
____________________________________
)
FOX ISLAND TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
M.S.A.D. NO. 8 BOARD OF DIRECTORS, )
)
Respondent. )
____________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on October 14, 1980 by the Fox Island Teachers Association (Asso-
ciation). The Association alleges in its complaint that the M.S.A.D. No. 8
Board of Directors (Directors) violated 26 M.R.S.A. 964(1)(E) by refusing
to sign and repudiating a collective bargaining agreement and by locking out
its teachers. The Directors filed on October 20, 1980 an answer to the
complaint and a counterclaim alleging that the Association violated 26
M.R.S.A. 964(2)(B) by breaching certain of the parties' groundrules for
negotiations. Both parties filed various motions to dismiss and motions for
summary judgment.
A pre-hearing conference on the case was held on December 15, 1980,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on December 18, 1980 a Pre-Hearing Conference Memorandum and Order,
the contents of which are incorporated herein by reference.
A hearing on the case was held on January 7, 1981, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Wallace J. Legge. The Association was represented by Stuart G.
Snyder, Esq., and the Directors by Annalee Z. Rosenblatt. The parties were
given full opportunity to examine and cross-examine witnesses, introduce
evidence, and make argument. Both parties filed post-hearing briefs, which
have been considered by the Board.
-1-
______________________________________________________________________________
JURISDICTION
The Association is a bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for the teachers employed by the Directors. The Board of
Directors is a public employer as defined in 26 M.R.S.A. 962(7). The juris-
diction of the Maine Labor Relations Board to hear this case and render a
decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1) In January, 1980, the parties began negotiating for a collective
bargaining agreement to succeed an agreement expiring on August 31, 1980.
The parties agreed in writing to a number of groundrules for conducting nego-
tiations, including a groundrule which states that the parties are empowered
to negotiate for their constituents "subject to final ratification," and that
copies of minutes showing final ratification of any agreement would be
furnished. Another groundrule provides that either party may have a
consultant at a bargaining session by giving 48 hours notice, along with the
name and background of the consultant, to the other party. The Directors'
negotiators were authorized to negotiate about and reach tentative agreement
on any issue, but were not authorized to make a final, binding agreement on
any issue.
2) The Association proposed in writing in January that the teachers'
salary scale be increased from 11 to 13 steps. The Directors' negotiators
said that they would not agree to the two additional steps. In February,
1980, the Directors counterproposed that the 11 step salary schedule be
retained. The Association negotiators rejected the proposal, saying they
wanted a 13-step scale. No further discussions about the salary scale took
place until after mediation in June, 1980.
3) In March, 1980, the negotiators reduced their tentative agreements
to writing. Agreement on a number of points was shown by using the statement
"as proposed by the F.I.T.A. proposal," without further explanation of the
details of the proposal.
4) In June, 1980, the Association requested that the Board's Executive
Director assign a mediator to the negotiations, stating in its request for
mediation that 4 issues, including "salary," remained unresolved. The Asso-
ciation's
-2-
______________________________________________________________________________
chief negotiator thought that any agreement reached in mediation by the nego-
tiators would be final and binding, since two or three years earlier the
agreement reached by the negotiations after utilizing impasse procedures was
finalized without ratification by the Directors.
5) A mediator was assigned to the case, and on July 2, 1980 the mediator
met with the parties. Shortly before the mediation session began, the
Directors' chief negotiator, Elizabeth Clayter, said she thought that nego-
tiations would end in mediation. Present with the Association negotiators at
the mediation session was Stuart Snyder, a Maine Teachers Association UniServ
Director. The Association neither gave the Directors 48 hours notice that a
consultant would be present, nor provided the name and background of the
consultant.
6) The parties did not meet face-to-face during mediation, but rather
communicated through the mediator. The Association negotiators told the
mediator to be sure to remind the Directors' negotiators of the two additional
steps in the Association's salary scale proposal, since the parties had not
discussed the proposal for a long time. The mediator said he would remind the
Directors of the additional steps.
7) The mediator discussed the base salary but did not mention the
additional steps while meeting with the Directors' negotiators. As a result
of discussions with the mediator, the parties' chief negotiators signed on
July 2nd a handwritten document, entitled "Tentative Agreement on Mediation,"
which settled all remaining issues. The tentative agreement on the salary
issue states: "FITA proposed salary scale with $9000 B.A. base and $500 for
M.A. degree, step increase $42O." The Directors' chief negotiator did not
think she was agreeing to the two additional steps when she signed the
tentative agreement.
8) Several days later, the Association tendered typewritten copies of a
contract to the Directors' chief negotiator for her signature. After learning
that the agreement contained a 13-step salary scale, the chief negotiator
refused to sign the agreement on the ground that she had not agreed to the
additional steps. In a July 21st letter to the Association's chief nego-
tiator, the Superintendent of Schools stated that the Directors' negotiator
signed the tentative agreement under the impression that the additional steps
were not included, and said that the Directors were willing to sit down with
the Association in an attempt to work out a solution.
-3-
______________________________________________________________________________
9) The parties met to discuss the problem on August 12th. The
Directors' negotiators offered to agree to one additional step for the first
year of the contract, and to a second step for the second year, but the Asso-
ciation negotiators said the Directors had already agreed to two additional
steps, and discussions ended. At some point after expiration of the parties'
old agreement on August 31st, the Association apparently demanded that the
Directors sign an agreement embodying all agreed-upon areas except the salary
scale issue, which would be left open for resolution by this Board. The
Directors refused to sign or implement an agreement embodying the previously
agreed-upon areas, taking the position that it was not obligated to sign an
agreement until all issues raised in negotiations were settled.
10) At a Board of Directors meeting on October 8th, the Directors con-
sidered whether to ratify the tentative agreement. The Directors' chief
negotiator, who was also the Chairwoman of the Board of Directors,
relinquished the chair and, in response to a question by one of the Directors,
stated that the tentative agreement has two additional salary steps to which
she did not knowingly agree. The Directors, including the chief negotiator,
then voted unanimously not to ratify the tentative agreement.
11) The parties met again on November 10th to discuss the tentative
agreement. The Association said that it had ratified the tentative agreement,
but, when the Directors asked for a copy of the minutes confirming ratifica-
tion, the Association said it did not have any minutes concerning ratification
of the agreement. The Directors proposed that the 11-step salary scale be
retained and that just cause be deleted from the expired agreement, and the
Association responded that it already had the additional steps. Negotiations
then broke off.
DISCUSSION
This case presents the question whether a mistake by a negotiator in
agreeing to a tentative agreement means that the negotiator's principal party
loses the reserved right to ratify or reject the agreement. We hold that it
does not, and dismiss the complaint and the counterclaim.
1. The Directors' refusal to sign the agreement. The Association con-
tends that the Directors' chief negotiator agreed in writing to the 13-step
salary scale at the July 2nd mediation session, and that the Directors'
refusal to sign and
-4-
______________________________________________________________________________
and implement the typewritten copies of the agreement violates 26 M.R.S.A.
964(1)(E). Title 26 M.R.S.A. 965(1)(D) requires a party to execute in
writing any bargaining agreement arrived at, and the law is well-settled that
a refusal to sign such an agreement constitutes a per se violation of the duty
to bargain. H. J. Heinz Co. v. NLRB, 311 U.S. 514, 525-526 (1941). The
Directors argue that since their negotiators did not know they were agreeing
to the additional salary steps, there was no meeting of minds and therefore
no agreement on the issue, and that, in any event, the Directors had reserved
the right to ratify any tentative agreement reached by their negotiators.
The Directors' negotiators clearly made a substantial mistake by signing
the July 2nd tentative agreement. That agreement provides as regards the
salary step issue that the "FITA [Association] proposed salary scale with
$900 B.A. base and $500 for M.A. degree, step increase $420" was agreed to.
The only salary scale proposed by the Association was the 13-step scale
proposed in January, 1980. The Directors' negotiators knew that they had
previously rejected this proposal, and that the proposal remained unacceptable
to the Directors. The reference in the tentative agreement to "FITA proposed
salary scale" should not have been confusing to the negotiators because the
bargaining teams in March, 1980, had shown tentative agreement on a number of
issues simply by referring to the "FITA proposal" without further explanation
of the terms of the proposal. The use of this phraseology in the July 2nd
tentative agreement thus was entirely consistent with the parties' practice.
The facts that the bargaining teams had not discussed the 13-step pro-
posal for over 5 months and that the mediator did not remind the Directors'
negotiators that the proposal contained 13 steps do not offer the Directors'
negotiators any excuse for failing to understand the tentative agreement.
If the negotiators had any question about what the salary scale agreement
meant, they were obligated to seek clarification from the mediator or the
Association negotiators. This they failed to do. While the Directors' nego-
tiators did not intend to agree to the 13-step proposal and did not think that
they were so agreeing when the July 2nd tentative agreement was signed, there
is no reason why they should have failed to understand the meaning of the
agreement. The signing of the agreement was an act of carelessness and
negligence on the part of the Directors' negotiators.
While ordinarily there must be a meeting of minds on all issues before a
-5-
______________________________________________________________________________
party is obligated by Section 965(1)(D) to sign a written contract, when a
misunderstanding is "due to the fault of one party, and the other party
understands the transaction according to the natural meaning of the words or
other acts, both parties are bound by that natural meaning." Butchers' Union
Local 120, 154 NLRB 16, 26 (1965). Here the misunderstanding is due entirely
to the fault of the Directors' negotiators. Since the "natural meaning" of
the tentative agreement on the salary scale was that the Association's 13-step
proposal was agreed to, we have no difficulty concluding that the Directors'
negotiators are bound, even though there was no meeting of minds, by the 13-
step salary scale agreement. Were the Directors' negotiators vested with
authority to reach a final agreement on the salary scale issue, we would hold
that the Directors were bound by the July 2nd agreement and would order the
Directors to sign the typewritten contract.
The fact remains, however, that the Directors clearly reserved the right
to ratify tentative agreements reached by their negotiators. At the first
bargaining session in January, 1980, the bargaining teams signed a groundrule
providing that the teams are empowered to negotiate for their constituents
"subject to final ratification."[fn]1 The March list of agreed-upon issues
and the July 2nd agreement both clearly state that the agreements are
"tentative." Indeed, the July 2nd agreement is labeled "Tentative Agreement
in Mediation." In short, the Directors' negotiators never suggested that
they were empowered to reach final, binding agreement, and the Association
knew as of the first bargaining session and throughout negotiations that the
Directors were entitled to ratify.
Once a principal party has reserved the right to ratify, any agreement
reached by the negotiators will not be concluded or binding until it is rati-
fied by the principal. Arundel Teachers Association v. Majercik, PELRB No.
73-08 at 15 (May 22, 1973). Implicit in the right to ratify is the right to
reject. Biddeford Unit of Local 1828 v. City of Biddeford, PELRB No. 75-33
at 3 (Dec. 10, 1975).
_______________
1. A principal party may lawfully reserve the right to ratify so long as its
negotiators are clothed with sufficient knowledge, guidelines and author-
ity to make tentative agreements. If the negotiators are mere conduits or
messengers between the principal party and the other party's bargaining
team, without sufficient authority to negotiate and make tentative agree-
ments, the principal is guilty of bad faith bargaining. See Union River
Valley Teachers Association v. Trenton School Committee, MLRB Nos. 80-28,
et al. at 3-4 (May 30, 1980). Here there is no question that the
Directors' negotiators properly were clothed with sufficient authority to
make tentative agreements.
-6-
______________________________________________________________________________
In particular, if the right to ratify is to mean anything, the principal party
must be able to reject tentative agreements erroneously agreed to by its
negotiators. See Westbrook Police Unit v. City of Westbrook MLRB No, 78-25
(Sept. 5, 1978). The fact that the Directors' negotiators erroneously agreed
to the 13-step salary scale therefore in no sense precludes the Directors from
deciding whether to ratify or reject the tentative agreement. Since the
Directors properly reserved the right to ratify and since the necessity for
ratification was clearly disclosed to the Association, the Directors' refusal
to ratify the July 2nd tentative agreement was proper. The Directors cannot
be required to sign the tentative agreement.
The Association's arguments that the groundrules were not in effect
during summer vacation or mediation and that the Directors waived the ground-
rules fail for lack of support in the record. There is no evidence that the
parties intended the groundrules to apply only during certain times of the
year or certain phases of the negotiations process. In particular, there is
no suggestion in the groundrules that they are intended to apply only at
certain times; indeed, the number of issues covered by the groundrules and
the wording used in the groundrules strongly suggest that the parties intended
the groundrules to be in effect at all times during negotiations. Even if the
groundrules were not in effect on July 2nd, the fact that the bargaining teams
called their agreement on that date a "Tentative Agreement" shows plainly that
they understood that the agreement would have to be ratified.
The evidence is insufficient to show that the Directors waived the right
to ratify the tentative agreement. While the Association's chief negotiator
testified he "thought" that any agreement reached during mediation would be
final and binding, the record does not support such an assumption. The
apparent basis for the assumption is that "two or three" years ago the agree-
ment reached by the bargaining teams after impasse was finalized without
ratification by the Directors, and that the Directors' negotiator said shortly
before the July 2nd mediation session that she thought negotiations would end
with mediation. The fact that on one occasion a contract was finalized with-
out ratification hardly establishes a "past practice" of the Directors waiving
the right to ratify. Moreover, the fact that the Directors' negotiator
thought negotiations would end in mediation cannot be construed as a waiver
of the Directors' right to ratify any tentative agreement reached during
mediation. We find a party has waived a collective bar-
-7-
______________________________________________________________________________
gaining right only when there is clear and unmistakable evidence of waiver.
Council #74, AFSCME v. City of Bangor, MLRB No. 80-50 at 4 (Sept. 22, 1980).
The evidence in this case falls far short of showing a waiver of the
Directors' right to ratify.
We also reject the Association's argument that the Directors violated
Section 964(1)(E) on October 8th when the chief negotiator spoke against and
voted not to ratify the tentative agreement. In the first place, the only
statement made by the negotiator was that the tentative agreement has two
additional salary steps to which she did not knowingly agree. An informa-
tional statement of this nature is not the type of advocacy against a
tentative agreement which can be considered evidence of bad faith bargaining.
Secondly, while a negotiator's failure to support a tentative agreement
reached by the bargaining teams is evidence of bad faith bargaining, Biddeford
Unit of Local 1828, supra, we cannot say, after viewing the totality of the
negotiators conduct in this case, that the evidence is sufficient to support a
finding of bad faith bargaining. The Directors' negotiators met with and
negotiated with the Association, observed the groundrules, offered counter-
proposals, made compromises on various issues, accepted the Association's
position on a number of issues, put their tentative agreements in writing,
reached tentative agreement on all issues but one, and participated in
mediation. This record establishes that the Directors' negotiators bargained
in good faith. The fact that the negotiators at the November 10th bargaining
session took a position disagreeable to the Association negotiators is not
evidence of bad faith bargaining because the Directors' position - that just
cause be deleted from the agreement and that the 11-step salary schedule be
retained - was not so outrageous or extreme as to amount to bad faith
bargaining. Because the totality of the circumstances show that the Directors
bargained in good faith, the sole fact that the chief negotiator voted against
the tentative agreement is not sufficient to support a finding of bad faith
bargaining.
In sum, the Directors' refusal to ratify and sign the tentative agreement
was proper because the Directors clearly reserved the right to ratify any
tentative agreements at the outset of negotiations. The totality of the
evidence shows that the Directors' negotiators bargained in good faith. We
will dismiss the allegations that the Directors violated Section 964(1)(E) by
refusing to
-8-
______________________________________________________________________________
sign and repudiating the tentative agreement.
2. The alleged lockout. The Association's claim that the Directors
engaged in a lockout in violation of Section 964(1)(E) is meritless. A lock-
out is the withholding of employment by an employer from his employees for
the purpose of resisting their demands or gaining a concession from them.
There is not a shred of evidence that the Directors withheld employment from
the teachers; to the contrary, the record shows that the teachers have worked
throughout this dispute. The Pennsylvania unemployment compensation cases
relied upon by the Association in arguing that the teachers were locked out
are wholly inapposite to this case.
The Association's argument that even if no lockout occurred, the
Directors violated the statute by refusing to execute a contract embodying
all areas of agreement except the salary scale also is meritless. Generally,
the duty to execute a contract arises only when all important issues raised
in negotiations are settled. See, e.g., Ridge Citrus Concentrate, Inc., 133
NLRB 1178 (1961). Since at least one important issue - the salary scale -
remained unresolved, the contract was incomplete and the Directors were not
obligated to sign and implement an agreement embodying all areas previously
agreed upon. The terms and conditions of employment for the teachers once
the old contract expired were those reflected in the old contract, not those
shown in the parties' tentative agreements. Easton Teachers Association v.
Easton School Committee, MLRB No. 79-14 at 4-5 (March 13, 1979). The
Teachers' Section 963 rights were not violated by the Directors' refusal to
sign and implement the incomplete agreement.
3. The Directors' counterclaim. The Directors' claim that the Associa-
tion violated its duty to bargain in good faith by breaching several of the
groundrules is meritless. The records shows that the Association violated the
groundrules by not giving the Directors 48 hours notice that a consultant
would be present at the mediation session, by not providing the name and back-
ground of the consultant, and by not furnishing a copy of minutes showing
Association ratification of the tentative agreement.
While violations of negotiations groundrules are evidence of bad faith
bargaining, Caribou School Department v. Caribou Teachers Association, 402
A.2d 1279, 1282-1283 (Me. 1979), the totality of the circumstances of this
case fail to show that the Association bargained in bad faith. The
Association negotia-
-9-
______________________________________________________________________________
tors showed their willingness to bargain in good faith by meeting and nego-
tiating with the Directors' negotiators, making compromises, putting tentative
agreements in writing, and participating in mediation. In light of this
evidence of good faith bargaining, the Association's technical violations of
the groundrules are not sufficient to show bad faith bargaining. We will
dismiss the Directors' counterclaim.
4. The pending motions. All pending motions to dismiss, motions for
summary judgment and all other motions filed in this case are meritless and
have, in any event, been mooted by our resolution of the issues of the case.
All pending motions are hereby denied.
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:
That the Fox Island Teachers Association's complaint in
this proceeding and the MSAD No. 8 Board of Directors'
counterclaim are hereby dismissed.
Dated in Augusta, Maine this 22nd day of April, 1981.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26 /s/_______________________________________
M.R.S.A. 968(5)(F) to seek Edward H. Keith, Chairman
a review by the Superior
Court of this decision by
filing a complaint in
accordance with Rule 80B /s/_______________________________________
of the Rules of Civil Don R. Ziegenbein, Employer Representative
Procedure within 15 days
after receipt of this decision.
/s/_______________________________________
Wallace J. Legge, Employee Representative
-10-