STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-43
Issued: May 14, 1981
_________________________________
)
SAD #5 FEDERATION OF TEACHERS, )
)
Complainant, )
)
v. )
)
WILLIAM STERNBERG, SAD #5 )
Superintendent of Schools )
)
and ) DECISION AND ORDER
)
SAD #5 BOARD OF DIRECTORS, )
)
Respondents. )
)
SAD #5 TEACHERS ASSOCIATION, )
)
Intervenor/Respondent. )
_________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A. 968
(5)(B) on February 25, 1981 by the SAD #5 Federation of Teachers (Federation).
The Federation filed an amended prohibited practices complaint on March 19,
1981. The Federation alleges in its amended complaint that William Sternberg,
Superintendent of Schools of SAD #5, and the SAD #5 Board of Directors
(School District) violated 26 M.R.S.A. 964(1)(A), (B), and (C) by refusing
to let the Federation use SAD #5 facilities to communicate with SAD #5
teachers or to hold meetinqs. The School District filed an answer on March 2,
1981, denying that its actions violated any provision of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. The SAD #5 Teachers
Association (Association) filed a motion to intervene in the proceeding on
March 4, 1981.
A pre-hearing conference on the case was held on March 23, 1981, Alter-
nate Chairman Donald W. Webber presiding. Alternate Chairman Webber granted
the Association's motion to intervene, and on March 25, 1981 issued a Pre-
Hearing Conference Memorandum and Order, the contents of which are incor-
porated herein by reference.
A hearing on the case was held on April 22, 1981, Chairman Edward H.
Keith presiding, with Alternate Employer Representative Thacher E. Turner and
Alternate Employee Representative Harold S. Noddin. The Federation was repre-
sented by
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Henry W. Harlow, the School District by Hugh G. E. MacMahon, Esq., and the
Teachers Association by Stuart G. Snyder, Esq. Full opportunity was given to
the parties to examine and cross-examine witnesses, introduce evidence, and
make argument. The parties engaged in oral argument at the conclusion of the
hearing.
JURISDICTION
The Federation is a public employee organization within the meaning of 26
M.R.S.A. 968(5)(B). The Superintendent of Schools and the SAD #5 Board of
Directors are public employers as defined in 26 M.R.S.A. 962(7). The
Teachers Association is the certified bargaining agent for the teachers
employed by SAD #5. The jurisdiction 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) The Federation was formed in 1979 for the purpose of replacing the
Teachers Association as the bargaining agent for the SAD #5 teachers. In
1979, the Federation filed a petition for a decertification election pursuant
to 26 M.R.S.A. 967(2). At a decertification election held on September 12,
1979, the Teachers Association won a majority of the votes, and was certified
as the exclusive bargaining agent for the SAD #5 teachers. During the
campaign leading up to the decertification election, the Federation posted
material on the bulletin boards in the SAD #5 schools, placed literature in
the teachers' mailboxes at the schools, and used rooms in the schools to hold
meetings.
2) In mid-winter of the 1979-'80 school year, Superintendent William
Sternberg told Gary Davis, President of the Federation, that the Federation
was not to post material on the school bulletin boards or put literature in
the teachers' mailboxes. The Superintendent said the Federation could put
material on the tables in faculty lounges, and could leave literature in
Federation members' mailboxes. The Federation followed these instructions
for the remainder of the school year.
3) In September, 1980, the Federation distributed organizational packets
from a table in the corridor of one of the schools. The Federation also
posted
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literature on school bulletin boards and used school rooms for meetings during
the fall of 1980.
4) On September 4, 1980 the Association requested that the School
District negotiate the issue of "Association rights and privileges." A
collective bargaining agreement with a term of September 1, 1979 to August 31,
1981 was in effect between the Association and the School District, but the
parties were at the time negotiating other issues not pertinent here. The
Association's "rights and privileges" proposal proposed that several para-
graphs be added to the collective bargaining agreement to provide that the
Assosication could use school buildings for meetings and could use school
facilities and equipment, bulletin boards, school mailboxes and telephones.
Paragraph K of the proposal provided that these rights shall be granted only
to the Association "and to no other labor organizations."
5) The parties reached impasse in their negotiations over two issues,
including the rights and privileges issue, and on December 18, 1980, a fact-
finding hearing was held. The parties received the fact-finders' report on
or about January 16, 1981, recommending that the proposed rights and
privileges clauses not be added to the agreement because the enumerated
privileges had long been enjoyed by the Association, and because an article
in the agreement required the School District to continue past privileges.
With regard to proposed Paragraph K, the fact finders recommended that the
Paragraph not be included in the agreement "since it very likely exists as a
contractual right on the basis of Article I, the Recognition Clause." The
recognition clause in the agreement states that the School District recognizes
the Association "as the exclusive bargaining representative" of the SAD #5
teachers.
6) On January 29, 1981, Robert Thibault, the Association building
representative at Rockland District High School, complained in writing to the
High School Principal that the Federation on January 29th held a meeting in
the High School. Thibault's letter asks the Principal to take steps to
correct the situation, which the Association saw as a violation of the
collective bargaining agreement.
7) On January 30, 1981, Superintendent Sternberg had a meeting with
Thibault, Federation President William Holden, and the High School Principal.
Sternberg told Holden that the fact finders had recently concluded that the
collective bargaining agreement entitled the Association to the exclusive use
of School District facilities, and that Holden would be considered
insubordinate if the Federation con-
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tinued to use SAD #5 bulletin boards, mailboxes, or school rooms. Thibault
agreed with the Superintendent's assessment of the fact-finders' report. In a
February 3, 1981 letter to Holden, Sternberg reiterated the School District's
position that the Federation could not use the school facilities. Holden
requested that the Federation be allowed to use the facilities in a
February 6, 1981 letter to the Board of Directors, but on February 17th
Sternberg responded that the Directors could not allow the Federation to use
the facilities.
8) The Federation has continued to leave literature in the faculty
lounges. Since February, 1981, the Federation has mailed two letter from
Holden to all faculty members. The Federation has access to the names and
addresses of all teachers since each teacher in the school system receives a
list of the names and addresses of the teachers employed by the School
District. The School District has continued to allow certain "outside"
organizations, such as insurance companies with which the School District has
contracts and the local Chamber of Commerce, to use the bulletin boards and
mailboxes.
9) On February 11, 1981, Association and School District representatives
met to consider the fact-finders' report. The parties agreed that their
contract granted the Association the right to exclusive use of school
facilities, and executed an addendum to the agreement which provides that the
parties agree with the fact finding report in its entirety.
DECISION
The Federation concedes the legality of "exclusive use" provisions, which
grant the incumbent union the exclusive use of certain employer facilities,
but argues that because the School District and Association have not entered
into such a provision, the School District has no proper basis for denying it
the use of school facilities. Exclusive use provisions have been upheld by
both federal and state courts against various constitutional attacks. The
valid state interest which justifies allowing a duly certified or recognized
bargaining agent to use public facilities while denying the same use to a
rival labor organization is that of ensuring labor stability:
". . . labor peace and stability in an area as vital as public educa-
tion are indisputably a necessity to the attainment of that goal.
Inter-union strife within the schools must be minimized."
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Clark County Classroom Teachers Association v. Clark County School District,
91 Nev. 143, 145, 532 P.2d 1032 (1975); see also, Memphis American Federation
of Teachers, Local 2032 v. Board of Education, 534 F.2d 699, 702-703 (6th Cir.
1976).
Less clear, however, is the legality of exclusive use provisions under
the labor laws. On one hand, the issue of the use of bulletin boards or other
facilities is a mandatory subject of bargaining, and contractual provisions
providing for such exclusive use generally are held not to constitute unlawful
interference or discrimination. NLRB v. Proof Co., 242 F.2d 560, 562 (7th
Cir.), cert. denied 355 U.S. 831 (1957); Armco Steel Corp., 148 NLRB 1179,
1186 (1964). On the other hand, contractual provisions which have the effect
of prohibiting union-related solicitation or distribution during nonworking
times are, absent special circumstances, presumptively invalid:
"The right to solicit and to distribute on subjects of statutorily
protected interest at proper times and places is one guaranteed by
the Act, which the bargaining representative has no authority to
waive."
General Motors Corp., 240 NLRB 168, 170 (1979), and the cases cited therein.
Since exclusive use provisions can infringe upon the employees' solicitation
and distribution rights, they must be scrutinized with care to determine
whether they impermissibly intrude upon the exercise of these rights
guaranteed by 26 M.R.S.A. 963.
Presented for decision in this case, then, are the questions whether 1)
the School District and the Association have in fact agreed to an exclusive
use provision, and 2) if so, whether this provision, either on its face or as
applied, prohibits teachers who support the Federation from exercising their
Section 963 solicitation and distribution rights. We find that an exclusive
use provision was agreed to on February 11, 1981, and that this provision does
not unlawfully interfere with the Federation supporters' rights or constitute
discrimination against the Federation.
It is clear that the School District and the Association agreed that the
Association was entitled to exclusive use of school facilities at the
February 11, 1981 meeting. On September 4, 1980, the Association proposed
that clauses granting the Association the right to use school buildings,
school facilities and equipment, bulletin boards, school mailboxes, and
telephones be included in the
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collective bargaining agreement. Paragraph K of the proposal provides that
these rights shall be granted only to the Association "and to no other labor
organizations." The School District and the Association reached impasse on
these proposals, and the dispute went to fact finding.
The fact finders recommended that the proposed clauses not be added to
the agreement because the uses enumerated in the proposal had long been
enjoyed by the Association, and because the School District was obligated by
a provision in the agreement to continue past privileges. As for Paragraph K,
the fact finders recommended that it not be included in the agreement because
the recognition clause of the agreement already granted the Association
exclusive use of the school facilities. On February 11th, School District and
Association representatives signed an addendum to the collective bargaining
agreement which provides that the parties agree to the fact finders' report
in its entirety.
By signing the addendum, the parties agreed to the fact finders'
conclusions that the School District was obligated to continue the uses which
the Association had long enjoyed, and that the recognition clause of the
agreement granted the Association the exclusive right to these uses. Whether
the fact finders were right or wrong in their conclusions is of no import
here; the important fact is that the School District and the Association
agreed to accept the conclusions. The result of this meeting of minds was
that the Association was entitled to the exclusive use of the facilities and
equipment enumerated in the Association's proposal.
Once the parties reached agreement on the exclusive use issue, the Super-
intendent was obligated to enforce the agreement by denying the use of school
facilities to other labor organizations. This the Superintendent did on
January 30, 1981, when he told William Holden, President of the Federation,
that he would be considered insubordinate if the Federation continued to hold
meetings in school buildings. The fact that the Superintendent denied Holden
the use of school facilities 12 days before the School District and the
Association formally agreed upon the exclusive use issue does not change our
conclusion that the Superintendent acted lawfully. The Association repre-
sentative present at the January 30th meeting with Holden agreed with the
Superintendent that the contract granted the Association exclusive use of the
facilities. The School District's and the Association's position was
consistent with the fact finders' conclusions, which were received by the
parties on or about January 16th. It is clear that the School
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District and the Association were in informal agreement on the exclusive use
issue by January 30th.
Having concluded that the parties reached agreement on the exclusive use
issue, we must decide whether the agreement improperly interferes with the
Federation supporters' rights to distribute Federation materials and solicit
for the Federation, and whether the provision unlawfully discriminates against
the Federation. On its face, the agreement grants exclusive use of certain
school facilities to the Association, and thus does not directly prohibit any
teacher from distributing or soliciting during nonworking times for the
Federation.
Neither does the application of the agreement appear to unlawfully
restrict the teachers' distribution and solicitation rights. Left untouched
by the agreement are the Federation supporters' rights to mail materials to
the teachers at home or at school, to leave materials in the faculty lounges,
and, presumably, to distribute and solicit during teacher workshops in the
fall. While the agreement results in prohibiting the Federation from using
school buildings for meetings, no reason appears in the record why the
Federation could not use other facilities in the community for meetings.
Thus, while Federation supporters are not able to use the bulletin boards,
mailboxes or school buildings, there are a number of alternative means of
communication available by which they can make their viewpoints known to other
teachers. Moreover, the Federation is not the teachers' bargaining agent at
the present time and, as a minority employee organization, can properly be
denied the uses of school facilities enjoyed by the Association, the certified
bargaining agent. See Memphis American Federation of Teachers, supra.
We conclude that the exclusive use agreement reached by the School
District and the Association does not unduly hamper the teachers in exercising
their basic Section 963 right to select a bargaining agent, or constitute an
attempt to "freeze out" the Federation. The agreement furthers the valid
objective of minimizing inter-union strife over the use of school facilities,
and has not been applied in an unlawful manner. If, in the future, the agree-
ment is applied so as to prohibit the teachers from soliciting or distributing
on behalf of the Federation or any other labor organization, our conclusions
in that case may well be different. See, e.g., NLRB v. Mid-States Metal
Products, Inc., 403 F.2d 702, 704-705 (5th Cir. 1968). We hold here only that
the agreement on its face and the
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manner in which it has been applied to date by the Superintendent does not
violate the Act. We will dismiss the Federation's prohibited practices
complaint.
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 SAD #5 Federation of Teachers' prohibited practice
complaint filed February 25, 1981 in Case No. 81-43 is dis-
missed.
Dated at Augusta, Maine, this 14th day of May, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Thacher E. Turner
Alternate 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 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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