STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-55
Issued: October 7, 1981
_____________________________
)
MAINE TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. )
)
SANFORD SCHOOL COMMITTEE )
)
and ) DECISION AND ORDER
)
CHARLES ACKERMAN, Labor )
Consultant for the Sanford )
School Committee, )
)
Respondents. )
_____________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on May 15, 1981 by the Maine Teachers Association (Association).
The Association alleges in its complaint that the Sanford School Committee
and Charles Ackerman (Committee) violated 26 M.R.S.A. 964(l)(E) by refusing
to implement the salary and insurance portions of an interest arbitration
award. The Committee filed a response to the complaint on June 9, 1981,
denying that its refusal to implement ehe entire arbitration award is a
prohibited practice.
A pre-hearing conference on the case was held on-June 29, 1981, Alternate
Chairman Donald W.. Webber presiding. On July 1, 1981 Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.
A hearing on the case was held on August 5, 1981, 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 James J. Shirley, Esq. 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.
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JURISDICTION
The Association is the bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for a bargaining unit of school nurses employed by the Committee.
The Committee is a public employer as defined by 26 M.R.S.A. 962(7), and
Charles Ackerman is a labor consultant and negotiator acting on behalf of the
Committee within the meaning of Section 962(7). The jurisdiction of the Maine
Labor Relations Board to hear this case and render a decision and order lies
in Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In the fall of 1979, the Association and Committee commenced negotia-
tions for a successor collective bargaining agreement for the school nurses
bargaining unit. By November, 1980, three issues - salaries, health insurance,
and course credit reimbursement - remained unresolved. The parties agreed to
waive fact-finding and to proceed directly to interest arbitration on these
issues.
2. In early December, 1980, the Association's negotiator telephoned
Ackerman, the Committee's negotiator, to ask if he would agree to have a
single arbitrator do the interest arbitration. The parties had scheduled for
January 21, 1981 a grievance arbitration with a single arbitrator assigned by
the American Arbitration Association, and the Association's negotiator
proposed that this arbitrator also do the interest arbitration on
January 21st. Ackerman agreed that the arbitrator could also do the interest
arbitration. The Association's negotiator and Ackerman had gone to interest
arbitration together a number of times before, but this was the first time
that Ackerman had voluntarily agreed to an interest arbitration procedure.
The Association negotiator did not propose that the interest arbitration award
be binding on all issues, and Ackerman did not understand that by agreeing to
an interest arbitration procedure he was also agreeing that the award would be
binding with respect to the salaries and health insurance issues.
3. The arbitrator agreed to do the grievance arbitration in the morning
and the interest arbitration during the afternoon of January 21st. At the
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beginning of the afternoon session, the arbitrator asked whether his interest
arbitration award would be binding on money issues. The Association negotia-
tor stated that she thought the award would be binding on all issues because
the parties had voluntarily agreed to the interest arbitration procedure.
Ackerman disagreed, stating that he did not understand that his agreement to
use a single arbitrator meant that the award would be binding on the salary
and insurance issues. Ackerman had agreed to go to interest arbitration on
the two money issues with the hope that an arbitrator's award might provide
a basis upon which the School Committee could reach agreement on the issues.
The arbitrator proceeded to hear the parties' positions with regard to the
three unresolved issues, and on March 26, 1981 rendered his award. The award
determines specific salary increases for the nurses, the Committee's share of
the cost of medical insurance, and a course credit reimbursement provision.
No ruling was made by the arbitrator as to whether the salary and insurance
determinations were binding on the parties.
4. In April and May, 1981, Association and Committee representatives met
to discuss the award. The Committee agreed to incorporate the credit reim-
bursement portion of the award in collective bargaining agreement, but refused
to include the salary or insurance portions of the award on the ground that
those determinations were not binding on the Committee.
DECISION
This case presents the questions whether public employers subject to the
Municipal Public Employees Labor Relations Act (Act) may lawfully agree to
binding interest arbitration over salaries, pensions and insurance, and, if
so, whether the Committee made such an agreement. We hold that public
employers are authorized by the Act to agree to binding arbitration on all
issues, but that the Committee did not agree to be so bound by the interest
arbitration award in this case. The Committee accordingly is not obligated
to incorporate the salary and insurance portions of the award in a collective
bargaining agreement, and the Association's complaint must be dismissed.
1. The Act authorizes public employers to agree to binding arbitration
on all issues. We reject the Committee's argument that public employers can-
not under the Act lawfully agree to be bound on all issues by an interest
arbitration
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award. Title 26 M.R.S.A. 965(4) states in pertinent part:
"If the parties have not resolved their controversy by the end
of said 45-day period, they may jointly agree to an arbitration
procedure which will result in a binding determination of their
controversy. Such determinations will be subject to review by the
Superior Court in the manner specified by section 972.
"If they do not jointly agree to such an arbitration procedure
within 10 days after the end of such 45-day period, then either
party may, by written notice to the other, request that their dif-
ferences be submitted to a board of 3 arbitrators . . .
"If the controversy is not resolved by the parties themselves,
the arbitrators shall proceed as follows: With respect to a con-
troversy over salaries, pensions and insurance, the arbitrators
will recommend terms of settlement and may make findings of fact;
such recommendations and findings will be advisory only . . .
with respect to a controversy over subjects other than salaries,
pensions and insurance, the arbitrators shall make determinations
. . . and if made by a majority of the arbitrators, such determina-
tions will be binding on both parties and the parties will enter an
agreement . . ."
By providing that the parties may jointly agree to an arbitration
procedure "which will result in a binding determination of their controversy,"
Section 965(4) plainly authorizes public employers to agree to binding arbi-
tration on all issues. If the parties do not jointly agree to a binding
arbitration procedure, Section 965(4) authorizes either party to compel the
other party to submit their controversy to a panel of arbitrators, whose
determinations with regard to salaries, pensions and insurance are not
binding. The plain language of Section 965(4) thus shows that the legislature
intended to provide two general procedures for invoking interest arbitration;
a compulsory procedure which results in non-binding recommendations with
regard to salaries, pensions and insurance, and a voluntary.procedure by which
the parties may jointly agree to binding arbitration on all issues.
Another indication of the legislature's intent is that the purpose of the
Act - stated in Section 961 to be to promote the improvement of the relation-
ship between public employers and their employees - is furthered by allowing
parties to agree to binding interest arbitration on all issues. Such an
option allows parties to agree to a procedure which will result in final
resolution of all unresolved bargaining issues, thereby reducing the potential
for conflicts and acrimony which frequently occur when parties are unable
after lengthy negotiations
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to resolve their differences. Finality in the collective bargaining process
is a worthy option for which the legislature has wisely provided.
Contrary to the Committee's argument, then, we find no statutory language
or policy considerations which prohibit a public employer from voluntarily
agreeing to binding interest arbitration on all issues. We do not see that
anything said in Superintending School Committee of Bangor v. Bangor Education
Association, A.2d (Me. Aug. 7, 1981) mandates the conclusion that a public
employer cannot voluntarily agree to binding interest arbitration on salaries,
pensions, and insurance. Moreover, the Committee's argument would nullify the
plain language of the second paragraph of Section 965(4), contrary to the rule
of statutory construction that every word and phrase in a statutory provision
should be given effect if possible. See, e.g., Camp Walden v. Johnson, 156
Me. 160, 163 A.2d 356, 358 (Me. 1960). In short, we conclude that had the
Committee so desired, it could have lawfully agreed that the arbitrator's
award would be binding on the salary and insurance issues.
2. There is no evidence that the Committee agreed that the award would be
binding on all issues. The record contains no evidence that the Committee
ever agreed that the arbitrator's decision would be binding on the salary and
insurance issues, however.[fn]1 The Association's negotiator did not mention
the issue when she telephoned Ackerman to ask if he would agree to a single
interest arbitrator, and Ackerman did not understand that by agreeing to a
single arbitrator he was also agreeing that the award would be binding on all
issues. When the arbitrator raised the issue at the beginning of the interest
arbitration hearing, Ackerman clearly stated the Committee's position that the
award would not be binding on the salary and insurance issues. It thus is
clear that there was no meeting of minds by Ackerman and the Association's
negotiator on the question whether the award would be binding on all issues.
The Association argues that Ackerman agreed by implication that the award
would be binding on all issues when he agreed to use a single interest arbi-
trator. According to the Association, voluntary agreement to go to interest
arbitration under Section 965(4) means, in the absence of any declaration to
the contrary,
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1. The Association does not dispute that the salary and insurance issues
determined by the arbitrator fall within the meaning of the phrase
"salaries, pensions and insurance" contained in Section 965(4).
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agreement that the award will be binding on all issues. We do not so read
Section 965(4). By providing that parties "may jointly agree to an arbitra-
tion procedure which will result in a binding determination," Section 965(4)
implies that there must be a meeting of minds on two matters; first, that a
particular arbitration procedure will be used, and second, that the procedure
will result in a binding determination on all issues. In the absence of an
express agreement on the second point, the award remains advisory with respect
to salaries, pensions and insurance, as stated in Section 965(4). We reject
the Association's argument that an implied agreement existed, and find that
since there was no express agreement that the award would be binding on all
issues, the award is advisory only with respect to the salary and insurance
determinations. The Committee accordingly was not obligated to implement the
arbitrator's salary and insurance determinations, and the Association's
complaint must be dismissed.
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 26 M.R.S.A. 968(5)(C), it is ORDERED:
The Maine Teachers Association's complaint filed on May 15,
1981 in Case No. 81-55 is dismissed.
Dated at Augusta, Maine this 7th day of October, 1981 .
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to
26 M.R.S.A. 968(5)(F) to
seek a review by the /s/____________________________________
Superior Court of this Edward H. Keith
decision by filing a com- Chairman
plaint in accordance
with Rule 80B of the
Rules of Civil Procedure /s/____________________________________
within 15 days after Don R. Ziegenbein
receipt of this decision. Employer Representative
Employer Regresentative
@'bddin
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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