STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 84-10
ISSUED: March 9, 1984
_____________________________
)
MAINE TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
SACO SCHOOL COMMITTEE, )
)
Respondent. )
_____________________________)
The question presented in this prohibited practices case is whether the Saco
School Committee (School Committee) is obligated to bargain with its bus drivers'
bargaining agent about matters requiring the appropriation of money for the 1983-
1984 fiscal year. The Maine Teachers Association (Association) filed its complaint
pursuant to 26 M.R.S.A. Section 968(5)(B)(Supp. 1983) on November 2, 1983, alleging
that the School Committee violated 26 M.R.S.A. Section 964(1)(E)(1974) by refusing
to bargain about monetary items for the bus drivers for the 1983-'84 year. The
School Committee filed a response and a counter-claim on November 21, 1983, denying
that it is required to negotiate about monetary issues for the 1983-'84 fiscal
year, and alleging that the Association violated 26 M.R.S.A. Section 964(2)(B)
(1974) by insisting that money matters be bargained.
A pre-hearing conference on the case was held on November 28, 1983, Alternate
Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on November
28th a pre-hearing conference memorandum and order, the contents of which are in-
corporated herein by reference. The parties waived a fact hearing at the pre-hearing
conference and agreed to submit the case to the Labor Relations Board on stimulation
and briefs. The stipulation of facts was filed on January 5, 1984 and the final brief
was received on February 7, 1984. The Association was represented by UniServ Direc-
tor Roger Kelley and the School Committee by Harry R. Prinqle, Esq.
JURISDICTION
The Association is a "public employee organization" and a "bargaining agent"
within the meaning of 26 M.R.S.A. Section 968(5)(B)(Supp. 1983). The School
-1-
Committee is a "public employer" as defined in 26 M.R.S.A. Section 962(7)(Supp. 1983).
The jurisdiction of the Maine Labor Relations Board to consider this case and issue
a decision and order lies in 26 M.R.S.A. Section 968(5)(C)(1974).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1) On April 11, 1983 UniServ Director Roger Kelley phoned Superintendent of
Schools Howard Cushman and requested that the School Committee voluntarily recognize
the Association as the bargaining agent of the School Committee's bus drivers and
agree to include the bus drivers in an existing bargaining unit of custodians repre-
sented by the Association. Cushman reported the request to the School Committee on
April 12. The School Committee voted on the 12th to deny the request because it
felt that inclusion of the bus drivers in the custodians' unit was inappropriate
and that the issue of representation should be settled by a secret ballot election.
2) The Association filed petitions for a unit determination and an election
with the Labor Relations Board on April 13, 1983. A hearing on the petitions was
held on May 17, and on May 18 the hearing examiner issued a unit determination re-
port, finding that the bus drivers should not be included in the custodians' unit
and ordering that a separate unit of full-time school bus drivers and alternate
bus drivers be established. No appeal was taken from the report, and on June 13 a
representation election for the bus drivers was held. A majority of the bus drivers
voted for the Association, and the Association was certified by this agency as the
bus drivers' bargaining agent on June 13.
3) On June 15, 1983 UniServ Director Kelley sent a letter to the Superintendent
stating in part: "In accordance with 26 M.R.S.A. 965 this is written notice . . .
to negotiate matters requiring appropriation of money." The Association delivered
its initial bargaining proposal to the Superintendent's office during the week of
June 25th. The parties met for negotiations on August 29, September 12, September 26,
and October 24, 1983, and have continued to meet thereafter. At each of these bar-
gaining sessions the School Committee refused to bargain wages and other matters
requiring the appropriation of money by the municipality for the 1983-'84 fiscal
year on the ground that the Association did not give the 120-day notice required by
26 M.R.S.A. Section 965(1)(Supp. 1983). The Association insisted at each session
-2-
that matters requiring the appropriation of money for the 1983-'84 fiscal year be
negotiated.
4) The fiscal year for the City of Saco runs from July 1 to June 30. The 1982-
'83 fiscal year operating budget began on July 1, 1982 and ended on June 30, 1983,
while the 1983-'84 fiscal year operating budget beqan on July 1, 1983 and will end
on June 30, 1984.
5) The School Committee submitted its budget request to the Saco City Council
on January 3, 1983. The City budget, which includes appropriations for the School
Department, was prepared during the period from January through April, 1983, and
was finally approved by the City Council on May 14, 1983. The 1983-'84 budget pro-
vided for wage and benefit increases for the School Department bus drivers. Through-
out the period of time subsequent to April, 1983 the School Committee has fully
maintained the dynamic status quo doctrine as defined by the Labor Relations Board,
and has granted to the bus drivers all wage and benefit increases contemplated by
the 1983-'84 budget.
DECISION
This case is governed by the last sentence of 26 M.R.S.A. Section 965(1)(Supp.
1983):
"Whenever wages, rates of pay or any other matter requiring appropriation
of money by any municipality or county are included as a matter of collec-
tive bargaining conducted pursuant to this chapter, it is the obligation
of the bargaining agent to serve written notice of request for collective
bargaining on the public employer at least 120 days before the conclusion
of the current fiscal operating budget."
The plain meaning of this provision is that a public employer is not obligated to
bargain about matters requiring the appropriation of money for any fiscal year un-
less it receives a written notice to bargain at least 120 days prior to the con-
clusion of the previous operating budget. Council 74, AFSCME v. S.A.D. No. 1, MLRB
No. 81-12 at 3-4 (March 11, 1981); Teamsters Local 48 v. Town of Falmouth, MLRB Nos.
79-10, et al. at 5 (June 6, 1979). The obvious intent of this rule is to give public
employers adequate notice that financial items will be brought to the bargaining
table so that provision for these items can be made in the next fiscal operating
budget.
-3-
The Association gave its notice to bargain to the Superintendent on June 15,
1983, 15 days prior to the conclusion of the 1982-'83 fiscal year operating budget
on June 30, 1983. Since the Association did not give notice at least 120 days
prior to the conclusion of the 1982-'83 operating budget, the School Committee was
excused by the language of Section 965(1) from bargaining about matters requiring
the appropriation of money for the 1983-'84 fiscal year, although it was of course
obligated to bargain about non-monetary matters for the 1983-'84 fiscal year as well
as money matters for the 1984-'85 fiscal year if the Association so requested.[fn1]
Town of Falmouth at 5-6. The Association's argument that the 120-day notice lan-
guage of Section 965(1) should not apply because the Association was not certified
as the bus drivers' bargaining agent at least 120 days prior to the conclusion of
the fiscal operating budget must be rejected because the language does not distin-
guish between negotiations with a newly-certified agent for an initial contract and
negotiations with an incumbent agent for a successor agreement. Id., at 4-5.
The language therefore applies to a newly-certified agent even though, as in this
case, it is unable through no fault of its own to give a timely 120-day notice.
The Association's policy arguments about why this should not be so, which certainly
are worthy of consideration, should be addressed to the legislature, the body with
the power to amend Section 965(1).
In short, we conclude that the School Committee did not breach its duty to bar-
gain in good faith by refusing to negotiate about monetary items for the bus drivers
for the 1983-'84 fiscal year. Even though the Association gave its notice to bar-
gain nearly as soon as it could (two days after it was certified as bargaining anent),
the notice still fell far short of the 120 days required by Section 965(1). The
1983-'84 fiscal year operating budget had already been approved by the City Council,
and the School Committee has acted entirely in accordance with the law by granting
the bus drivers all the wage and benefit increases contemplated by the 1983-'84
budget. We therefore conclude that the School Committee has not violated Section 964
(1)(E).[fn2] The Association's complaint will be dismissed.
_______________
1/ No claim is made that the School Committee refused to bargain about these matters.
2/ Section 964(1)(E) provides that public employers are prohibited from "[rlefusing
to bargain collectively with the bargaining agent of its employees as required
by section 965." In addition to the 120-day notice language, Section 965 sets
forth the elements of the duty to bargain in good faith.
-4-
The School Committee alleges in its counter-claim that the Association vio-
lated 26 M.R.S.A. Section 964(2)(B) by insisting that monetary matters for the
1983-'84 fiscal year be negotiated.[fn3] We held in the Town of Falmouth case, at
6-7, that a bargaining agent violates Section 964(2)(B) when it insists to impasse
that monetary matters be negotiated for a fiscal year for which a timely 120-day
notice has not been tendered. This is true because matters requiring the appro-
priation of money in essence become permissive subjects of bargaining when timely
notice is not given and, according to a venerable principle of labor law, "it is
lawful to insist upon matters within the scope of mandatory bargaining and un-
lawful to insist upon matters without." NLRB v. Wooster Division of Borg-Warner
Corp., 356 U.S. 342, 349 (1958). Insistence that permissive subjects of bargain-
ing be negotiated is unlawful because it "is, in substance, a refusal to bargain
about the subjects that are within the scope of mandatory bargaining." Id. The
question we must decide, then, is whether the Association insisted to impasse that
monetary matters for the bus drivers for the 1983-'84 fiscal year be negotiated.
We think it clear that the Association did insist to impasse. The parties
stipulated that the Association insisted at each session that matters requiring
the appropriation of money for the 1983-'84 fiscal year be negotiated. That the
parties were deadlocked over the issue is shown by the fact that the Association
filed this case. "Impasse" is a term of art which must be determined on a case-
by-case basis. Essentially it is shown by "a state of facts in which the parties,
despite the best of faith, are simply deadlocked." MSEA v. State of Maine, MLRB
No. 79-43 at 8 (Dec. 6, 1979). Since the parties were deadlocked over the
question of bargaining matters requiring the appropriation of money for the 1983-
'84 fiscal year, they were at impasse. The Association therefore violated Section
964(2)(B) by insisting to impasse that monetary matters be bargained. We will
order the Association to cease and desist from insisting that the School Committee
bargain about matters requiring the appropriation of money for the bus drivers
for the 1983-'84 fiscal year.
_______________
3/ Section 964(2)(B) prohibits public employee organizations from "[rlefusing
to bargain collectively with a public employer as required by Section 965.
-5-
ORDER
On the basis of the foregoing findings of fact and discussion, and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of 26
M.R.S.A. Section 968(5)(C)(1974), it is ORDERED:
1. That the Maine Teachers Association's prohibited practices complaint
filed in this proceeding is dismissed.
2. That the Maine Teacher Association and its agents and members cease
and desist from insisting that the Saco School Committee bargain about
matters requiring the appropriation of money for the bus drivers for
the 1983-'84 fiscal year.
Dated at Augusta, Maine this 9th day of March, 1984.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Donald W. Webber
Alternate Chairman
/s/____________________________________
Thacher E. Turner
Employer Representative
/s/____________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right, pursuant to 26 M.R.S.A. Section
968(5)(F)(Supp. 1983) 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 the date of this decision.
-6-