STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 82-33
Issued: October 5, 1982
______________________________
)
M.S.A.D. NO. 22 BOARD OF )
DIRECTORS, )
)
Complainant, )
)
v. )
)
TRI-22 TEACHERS ASSOCIATION ) DECISION AND ORDER
)
and )
)
MTA UNISERV DIRECTOR, )
DELMONT J. PERRY, )
)
Respondents. )
______________________________)
This is a prohibited practices proceeding, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on April 15, 1982 by the M.S.A.D. No. 22 Board-of Directors
(Directors). The Directors allege that the Tri-22 Teachers Association and
UniServ Director Delmont J. Perry (Association) violated 26 M.R.S.A. Section
964(2)(A) and (B) by not vesting proper authority to negotiate with its bar-
gaining team and by attempting to bypass the Directors' bargaining team. The
Association filed a response on May 7, 1982, denying that it had violated any
provision of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
Section 961, et seq. (Act).
A pre-hearing conference on the case was held on May 24, 1982, Alternate
Chairman Donald W. Webber presiding. On May 28th Alternate Chairman Webber
issued a Pre-Hearing Conference Memorandum and Order, the contents of which
are incorporated herein by reference.
Hearings on the case were held on June 18 and July 7, 1982, Chairman
Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and
Employee Representative Harold S. Noddin. The Directors were represented by
Paul S. Hurlburt and the Association by Delmont J. Perry. The parties were
given full opportunity to examine and cross-examine witnesses, introduce
evidence, and make argument.
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JURISDICTION
The M.S.A.D. No. 22 Board of Directors is a public employer within the
meaning of Section 968(5)(B). The Association is the exclusive bargaining
agent for a bargaining unit of teachers employed by the Directors. Delmont J.
Perry is a UniServ Director employed by the Maine Teachers Association with
the duties of providing labor relations services, assistance and advice to
local teachers associations, including the Tri-22 Teachers Association. 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. Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. On November 1, 1981 the Directors and the Association exchanged their
initial proposals for a collective bargaining agreement to succeed an agree-
ment set to expire on August 31, 1982. The Directors' proposal proposed a
number of reductions in the language of the existing agreement, while the
Association's proposal proposed some improvements in the contract language for
the teachers. The Association also proposed that groundrules for the conduct
of negotiations be agreed to, but the Directors would not accept any ground-
rules.
2. The parties first met for negotiations on November 12th, and there-
after, until mid-March, 1982, met approximately 8 more times. During the
early bargaining sessions the Association's chief negotiator, Delmont Perry,
stated that the Directors' proposal was too negative to negotiate and that he
was not authorized to negotiate anything less than the current contract
language. The Directors' chief negotiator, James Doughty, responded that the
proposal represented a "management-oriented" position and that the Directors
did not intend to continue expanding current contract language. Perry asked
what specific problems caused the Directors to want to cut back on the current
language, but Doughty refused to elaborate on the reasons for the Directors'
proposals, stating that the Directors were not there to discuss problems but
only to negotiate.
3. Despite Perry's statements, some progress was made. The Association
made counter-proposals, changed its position on some issues, accepted the
Directors'
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position on some issues, entered into tentative agreements, and otherwise
participated in the bargaining process. The Directors' likewise modified some
of their positions and accepted the Association's proposals on some issues.
The Directors' bargaining team assumed an antagonistic posture during
bargaining sessions, however, ridiculing Perry and making abusive and
derogatory remarks about the Association's bargaining team.
4. At a March 11, 1982 bargaining session the parties exchanged written
counter-proposals. Both parties made some concessions in their respective
counter-proposals, but a number of major issues remained unresolved. During
negotiations on March 11 Doughty told the Association negotiators that the
Directors would talk about but never agree to Association proposals involving
such mandatory subjects of bargaining as sick leave, just cause, and health
insurance. Perry asked whether Doughty's list of subjects about which the
Directors would not agree to was complete, and Doughty responded that it was
not.
5. Association members discussed the lack of progress in negotiations
and the Directors' bargaining team's attitude about negotiations at a meeting
on March 15, 1982. One member suggested writing a letter to the Board of
Directors asking for a meeting to discuss the actions and positions taken by
the Directors' bargaining team. The members voted to adopt this suggestion,
and a letter was drafted by the Association's bargaining team and executive
comittee. The letter, which was signed by the Association President,
mentioned various actions by the Directors' negotiators which the Association
felt were improper and proposed a meeting between the Association's bargaining
team and the entire Board of Directors for "a serious discussion of all
issues." Perry reviewed the letter and found nothing wrong with it prior to
it being mailed. Each member of the Board of Directors received a copy of the
letter.
6. On March 26, 1982 the Chairman of the Directors' negotiations
committee wrote to the Association President stating that the sending of the
letter resulted in prohibited practices because it was an attempt to subvert
the bargaining process as well as an instance of bad faith bargaining. The
Chairman stated that unless the Association withdrew its request for a meeting
by March 31st, the Directors would file a prohibited practices complaint
against the Association and discontinue negotiations until such time as the
complaint was ruled upon.
7. The Association President responded to the Chairman's letter on
March 29th, stating that the Association did not want to negotiate with the
full Board
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of Directors but rather merely wanted to meet to discuss problems which had
arisen in the bargaining process. On April 2nd, the President sent copies of
his March 29th letter to all members of the Board of Directors. No meeting
was held with the full Board of Directors, and the two bargaining teams
resumed meeting and negotiating. An agreement had not yet been reached by the
time of the hearings in this case.
DECISION
At issue are the questions whether the Association violated Section 964
(2)(A) and (B) by not granting proper authority to its negotiators and by
attempting to circumvent the Directors' bargaining team.[fn]1 We dismiss the
first allegation but conclude that the Association's attempt to meet with the
full Board of Directors in March was an improper attempt to bypass the
Directors' bargaining team. We order the remedy necessary to effectuate the
policies of the Act.
1. The alleged lack of authority. At the early bargaining sessions
Delmont Perry, the Association's chief negotiator, stated that he was not
authorized to negotiate any reductions in the current contract language. We
have held in a number of cases that a bargaining team must be clothed with
"sufficient knowledge, guidelines and authority to make tentative agreements."
Fox Island Teachers Association v. M.S.A.D. No. 8 Board of Directors, MLRB No.
81-28 at 6 (April 22, 1981). Whether we read Perry's statements to mean that
he did not have authority to agree tentatively to reduce the contract language
or as a flat refusal to negotiate about the Directors' proposals, the result
is the same: the statements are evidence of bad faith bargaining. The Asso-
ciation was obligated by Section 964(2)(B) and Section 965(1) to vest in its
negotiators sufficient authority to make tentative agreements, and the Asso-
ciation could not lawfully refuse to bargain about those proposals which
involved mandatory subjects of bargaining, even if the proposals did seek
reductions in the current contract language.
_______________
1/ Section 964(2)(A) provides in pertinent part that public employee
organizations are prohibited from interfering with, restraining or coercing a
public employer "in the selection of his representative for purposes of
collective bargaining or the adjustment of grievances." Section 964(2)(B)
prohibits a union from "refusing to bargain collectively with a public
employer as required by Section 965."
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A bad faith bargaining charge requires that we examine the totality of
the charged party's conduct and decide whether the party's actions during
negotiations indicate "a present intention to find a basis for agreement."
Waterville Teachers Association v. Waterville Board of Education, MLRB No.
82-11 at 4 (Feb. 4, 1982). In making this determination we must also consider
the charging party's conduct, for the test of good faith in bargaining "is
dependent in part upon how a reasonable man might be expected to react to the
bargaining attitude displayed by those across the table." Times Publishing
Co., 72 NLRB 676, 682-683 (1947). Thus, while the bad faith of one party
does not "operate to absolve [the other party] from obeying the mandate of
the Act to bargain collectively," such bad faith is "a factor to be considered"
in determining whether the charged party has bargained in bad faith. Id., at
683. In light of the evidence that the Directors bargained in bad faith as
well as the evidence that the Association otherwise participated in good faith
in the bargaining process, we conclude that Perry's statements, while consti-
tuting evidence of bad faith bargaining, are not sufficient to support a find-
ing of bad faith bargaining.
We cannot ignore the considerable evidence of the Directors' bad faith
bargaining in this matter. Among this evidence is Doughty's statement, re-
peated throughout the bargaining sessions, that the Directors were not at the
bargaining table to discuss problems but only to negotiate. These statements
came in response to Perry's entirely proper questions about the specific prob-
lems which had caused the Directors to want to roll back the current contract
language. The duty to bargain in good faith includes the requirement "that
parties justify positions taken by reasoned discussions," and a refusal by a
party to explain the basis for its proposals is evidence of bad faith bargain-
ing. Alba-Waldensian, Inc., 167 NLRB 695, 697 (1967), enforced per curiam,
404 F.2d 1370 (4th Cir. 1967); see also Borg-Warner Controls, 198 NLRB 726,
727 (1972). Doughty's refusal to explain why the Directors preferred their
own proposals, many of which constituted substantial roll backs of the current
contract language, was thus plainly improper. It is difficult to fault the
Association for refusing to bargain about the proposals when the Directors
refused to explain
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why they wanted the proposals. [fn2]
Another element of the Directors' bad faith bargaining was some members
of the bargaining team's antagonistic, abusive behavior at the bargaining
table. This behavior included ridiculing the Association's chief negotiator
and denigrating the other members of the Association's bargaining team. Such
unprofessional conduct, which is of course highly destructive of a bargaining
relationship, constitutes strong evidence that the Directors were not
interested in reaching an agreement with the Association and by itself
justifies a finding of bad faith bargaining on the part of the Directors.
Moreover, misconduct of this nature has been held to justify the refusal of a
party to even meet for negotiations. See, e.g., Fitzsimons Manufacturing Co.,
251 NLRB 375, 379 (1980), affirmed 670 F.2d 663 (6th Cir. 1982).
Finally, Doughty's statement at a bargaining session on March 11, 1982
that the Directors would talk about certain mandatory subjects of bargaining
but would never agree to them reveals a classic example of surface bargaining,
which occurs when a party goes through the motions of collective bargaining
with no intention of reaching agreement on the matters under discussion. See,
e.g., Sanford Highway Unit, supra. Surface bargaining is of course the
antithesis of the duty to bargain
_______________
2/ We reject the Association's contention that many of the Directors'
proposals were so outrageous as to constitute bad faith bargaining in and of
themselves. Predictably unacceptable proposals do not justify an inference of
bad faith if they do not foreclose future negotiations, unless the proposals
are so harsh or patently unreasonable as to frustrate any possibility of
agreement. See, e.g., S.A.D. No. 22 Non-Teachers Association v. S.A.D. No. 22
Board of Directors, MLRB No. 79-32 at 7 (July 30, 1979); NLRB v. MacMillan
Ring-Free Oil Co., 394 F.2d 26, 29-30 (9th Cir. 1968). Insistance upon a
proposal which the insisting party knows the other party cannot accept is of
course evidence of bad faith bargaining. See, e.g., Sanford Highway Unit v.
Town of Sanford, MLRB No. 79-50 (April 5, 1979), affirmed, 411 A.2d 1010, 1015
(Me. 1980). While some of the Directors' proposals were highly unusual - such
as the proposal that a teacher get approval from the Directors before seeking
outside employment and the proposal that a teacher post a bond in the amount
of his/her salary before taking a sabbatical leave - the present record does
not indicate whether these proposals were patently unreasonable or whether the
Directors insisted that the Association accept them.
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in good faith imposed by Section 965(1)(C).[fn]3
We also cannot overlook the evidence which shows that, despite Perry's
statements, the Association did in fact participate in good faith in the
negotiations. The Association met and negotiated with the Directors'
bargaining team, offered proposals and counterproposals, made compromises on
various issues, and accepted the Directors' position on some issues, all
actions which indicate that the Association was attempting to reach an
agreement with the Directors. In short, having examined the totality of both
parties' conduct in this matter, we conclude that the Association has not
bargained in bad faith with the Directors. That portion of the Directors'
complaint alleging bad faith bargaining by the Association is hereby
dismissed.[fn]4
2. The Association's request to meet with the Board of Directors. In
March, 1982, the Association sent a letter to each member of the Board of
Directors, stating that certain actions of the Directors' negotiators were
improper and requesting a meeting between the Association of the entire Board
of Directors for "a serious discussion of all issues." In a letter dated
March 26th the Chairman of the Directors' negotiations committee stated that
the letter constituted a prohibited practice and that if it was not withdrawn
by the Association the Directors would file a prohibited practices complaint.
The Association responded on March 29th, stating that it did not want to
negotiate with the full Board of Directors but instead merely wanted to meet
to discuss problems which had arisen during bargaining. The Association
President subsequently sent a copy of the March 29th letter to each member of
the Board of Directors.
_______________
3/ This is not the first time the Directors have been found guilty of
bad faith bargaining. In S.A.D. No. 22 Non-Teachers Association, supra, we
found that the Directors' insistance on a management rights clause under which
the association would waive its bargaining rights on all subjects "to be so
totally destructive of the principles of collective bargaining" as to
constitute a violation of the duty to bargain. It is appropriate for us to
take official notice of a party's prior labor relations record when fashioning
remedies, and we will do so in future cases involving the Directors. See,
e.g., Sanford Fire Fiqhters Association, Local 1624 v. Sanford Fire
Commission, MLRB No. 79-62 at 14-15 (Dec. 5, 1979); NLRB v. Selvin, 527 F.2d
1273, 1277-1278 (9th Cir. 1975).
4/ We do not enter an order against the Directors because the Asso-
ciation neither formally charged the Directors with bad faith bargaining nor
sought an order against the Directors. The Association instead raised the
actions of the Directors' bargaining team as a defense to its own actions.
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Two considerations are pertinent in deciding the Directors' bypassing the
bargaining agent charge: 1) did the Association's attempt to meet with the
full Board of Directors in fact rise to the level of bypassing the Directors'
representative, and 2) did the attempt have more than a negligible effect on
the authority of the Directors' bargaining team? See, e.g., NLRB v. Goodyear
Aerospace Corp., 497 F.2d 747, 752 (6th Cir. 1974); Union Electric Co., 196
NLRB 830 (1972). A union may of course request to meet with the employer at
any time during negotiations, but the purpose of the meeting cannot be to
negotiate about issues pending before the parties' bargaining teams.
While the Directors' charge presents a very close question indeed, we
conclude that on balance the Association's attempt to meet with the Directors
constituted an attempt to bypass the bargaining team. The Association wanted
to meet for "a serious discussion of all issues," and we infer that included
in the request were at least some of the many issues which the two bargaining
teams had not been able to resolve. Any attempt to deal with the Directors
over such issues would have the effect of undermining the bargaining team's
authority to deal with these matters. Even though the Directors' bargaining
team was engaging in bad faith bargaining, the Association was obligated by
Section 965(1) to continue to attempt to negotiate with the bargaining team,
while at the same time, if it so chose, attempting to rectify the bargaining
team's misconduct through its statutory remedies. If in fact the Association
wanted to meet with the Directors to discuss the bargaining team's negative
attitude, a proper subject for a meeting so long as the Association did not
attempt to interfere with the Directors' selection of their bargaining
representatives, then the Association should have clearly and unambiguously
so stated in its letter. We conclude that the Association's request to meet
for a serious discussion of all issues constitutes a breach of the Associa-
tion's duty to bargain, in violation of Section 964(2)(B).[fn]5 We will order
the Association to cease and desist from attempting to discuss bargaining
issues with the full Board of Directors unless the Board of Directors consents
to such discussions.[fn]6
_______________
5/ Since UniServ Director Delmont Perry, the Association's labor
relations advisor, reviewed the letter before it was sent to the Directors he
is indirectly responsible for it and accordingly will be included in our
order.
6/ We recognize that on occasion such discussions are fruitful,
particularly when the bargaining teams are unable to resolve their differ-
ences, and do not intend by this decision to preclude parties from entering
into such discussions when they wish to do so.
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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. Section 968(5), it is hereby ORDERED:
That the Tri-22 Teachers Association and UniServ Director
Delmont Perry, and their agents and members, cease and desist
from attempting to discuss issues pending in contract nego-
tiations with the full Board of Directors unless the Direc-
tors indicate a willingness to engage in such discussions.
Dated at Augusta, Maine, this 5th day of October, 1982.
MAINE LABOR RELATIONS BOARD
/s/_____________________________________
Edward H. Keith
Chairman
/s/_____________________________________
Don R. Ziegenbein
Employer Representative Empl 4e
/s/_____________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. Section
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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