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-