Biddeford Teachers Association v. Mayor James Grattelo and Biddeford Board of Education, No. 96-01 (June 17, 1996); Biddeford Board of Education v. Biddeford Teachers Association, No. CV-96-314, Interim Order on Motion for Stay, (Me. Super. Ct., York Cty., Aug. 1, 1996), rev'd in part sub nom. Mayor James Grattelo and Biddeford Board of Education v. Biddeford Teachers Association and Maine Labor Relations Board, No. CV-96-314 (Aug. 13, 1996); Interim Order Enforcing Board Order, in part, No. CV-96-314 (Sept. 24, 1996); rev'd in part sub nom. Biddeford Board of Education v. Biddeford Teachers Association, 1997 ME 17, 688 A.2d 922 (Me. 1997); Biddeford Teachers Association v. Mayor James Grattelo and Biddeford Board of Education, No. 96-01, Decision and Order on Motion for Order on Remedies (Me.L.R.B. May 13, 1997) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 96-01 Issued: June 17, 1996 _________________________________ ) BIDDEFORD TEACHERS ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) MAYOR JAMES GRATTELO and ) BIDDEFORD BOARD OF EDUCATION, ) ) Respondents. ) _________________________________) On July 12, 1995, the Biddeford Teachers Association (Association) filed a prohibited practice complaint with the Maine Labor Relations Board (MLRB) which alleges that the Biddeford Board of Education (Board) and ex officio Board Chair, Biddeford Mayor James Grattelo (Mayor or Grattelo), have violated multiple prohibited practice provisions of the Municipal Public Employees Labor Relations Law (MPELRL), set forth at 26 M.R.S.A. 964(1)(A), (B) and (E) (1988). More specifically, the complaint alleges that during negotiations for a successor to the parties' contract which expired August 31, 1994, Grattelo, on March 14 and 28, and on April 18, 1995, engaged in unlawful direct dealing with the Association in circumvention of an existing negotiating committee composed of three Board members. The complaint also alleges that on April 25, 1995, Grattelo unlawfully vetoed the Board's ratification of an Association- ratified tentative agreement and unlawfully insisted on pay parity between Association-represented and unorganized employees. Finally, the complaint alleges that the Board unlawfully refused, upon request, to sign a mutually-ratified agreement and that Grattelo opposed the approval of probationary teachers' contracts until the tentative collective bargaining agreement was renegotiated. The Association's complaint charges: Grattelo's veto as unlawful interference, restraint or coercion in violation of -1- Section 964(1)(A) (1988); Grattelo's direct dealing and threats of non-renewal of probationary teachers as both interference, restraint or coercion in violation of Section 964(1)(A) (1988) and discouragement of Association membership in violation of Section 964(1)(B) (1988); and the Board's failure to clothe its negotiators with sufficient authority, Grattelo's insistence upon equality in pay with unorganized employees, and the Board's refusal to execute agreements arrived at, as refusals to bargain in good faith, in violation of Section 964(1)(E) (1988). A prehearing conference was conducted in this matter on September 6, 1995, by MLRB Alternate Chair Kathy M. Hooke. Chair Hooke's September 14, 1995, Prehearing Conference Memorandum and order is hereby incorporated in and made a part of this decision and order. An evidentiary hearing was conducted on December 13, 1995, by Alternate Public Chair Hooke, Alternate Employee Representative Wayne W. Whitney and Employer Representative Howard Reiche, Jr. All parties were afforded the opportunity to present evidence and argument. The transcript of the proceeding was posted to the parties on March 4, 1996, and was received by them on March 5. Pursuant to the briefing schedule the parties filed briefs, the last of which was received on April 17, 1996. The Board deliberated the case on April 24, 1996. The Complainant is represented in this matter by Attorney John Richardson and the Respondents, by Attorney Harry Center. JURISDICTION Grattelo and the Board are public employers within the meaning of 26 M.R.S.A. 962(7) (1988). The Association is the bargaining agent of a unit of certified employees of the Board, within the meaning of 26 M.R.S.A. 962(2) (1988). The Association has timely alleged that Grattelo and the Board have committed prohibited practices proscribed by 26 M.R.S.A. 964(l)(A), (B) and (E) (1988). No objection to our jurisdiction has been expressed. -2- FINDINGS OF FACT Based on the evidence, admissions and reasonable inferences arising therefrom the Board makes the following findings of fact. The Association is a public employee organization affiliated with the Maine Education Association/NEA. James Grattelo was Mayor of the City of Biddeford (City) at all times material to the issues in this case. As Mayor, Grattelo served as a full member[fn]1 and as ex officio chair of the Board. The Board is the public employer of a bargaining unit of certified employees described by the terms of the Recognition clause of the parties' tentative agreement as: "certified personnel, which includes; teachers, full or part time, as defined in Article 1, school nurses, social workers, media specialists, guidance, substance abuse and other counselors, excluding; administrators, ed techs, secretaries and those positions described in 26 M.R.S.A. Section 962." A certified employee collective bargaining agreement was in effect between the parties from September 1, 1991, to August 31, 1994. It expired before the parties could negotiate a successor agreement. At a Regular Board Meeting on September 15, 1993, the next- previous Board, of substantially different composition, voted four-to-three to approve both a negotiated retroactive salary increase for members of a Board Administrative Employee bargaining unit, and for a retroactive 3 percent wage increase for the Superintendent and Assistant Superintendent. Then-Mayor Roger Normand immediately vetoed both Board-approved increases. The propriety and sustainability of Mayor Normand's veto was discussed at the Board's October 20, 1993, and November 17, 1993, Regular Board Meetings but was never resolved. The present Board, comprised of Chair Grattelo, Vice Chair _______________ 1 "The Mayor is a[n equal] member of the Board . . .[,] along with seven other at-large elected members, with the mayor serving as (ex officiol chair of the Board." -3- Joseph Jezar, Claire Colucia, Joan Toussaint, Dana Peck, Howard Hanson, John Jariz and William Whitten, met on December 14, 1993. All eight members were present, along with assorted staff persons, Association President Buffum and bargaining unit member Douglas McDonald. The Board minutes indicate that among other organizational matters,[fn]2 as "New Business" the Board "voted unanimously . . . to allow the Mayor veto power on expenditures [, and to establish] that such veto power can be overridden by 2/3 vote of the Board membership present." (Emphasis added). The minutes indicate in paragraph 5.c.1 that after adopting Robert's Rules of Order, the Board took additional action as follows: c. Addendum to Robert's Rules of Order 1. Casting votes - Dana Peck moved, seconded by Joseph Jezar, voted unanimously by the Board to allow the Mayor to cast his vote (as amendment by Joan Toussaint, seconded by Claire Colucia, voted unanimously by the Board that the Mayor may vote only to break a tie. (sic). The Mayor was given veto authority because of the "fairly well publicized" controversy over the previous mayor's unsuccessful attempt to veto a four-to-three Board vote granting raises to Administrators. Teachers at the High School were aware of this controversy. The veto power, in Grattelo's own words, was to be "consistent with the provisions that are specifically laid out on the city side. Specifically, the Mayor has veto powers over appropriations, and . . . the council can override that on two-third's votes. And because it's not in the charter on the Board we were advised that if it's adopted as part of your _______________ 2 The Biddeford City Charter (City Charter) provides in Article V, Board of Education, Section 3, organization, that: The board of education shall meet for organization as soon as possible following the regular municipal election. The newly elected members shall be sworn to the faithful discharge of their duties by a person authorized to administer oaths or by the city clerk. The board shall meet regularly, twice a month. -4- rules that you can proceed and govern by those because the Board has the right to organize at their first organizational meeting . . . ." Buffum and McDonald were present at the December 14, 1993 organizational meeting. Buffum received a copy of the minutes of the December 14, 1993 Board meeting attached to a copy of an agenda for the next Board meeting. Although in reading through the minutes, Buffum noticed that there was an addendum to Robert's Rules of Order, she "did not see the implication of what the addendum was." In a September 27, 1993 legal opinion, then-Board Attorney Hugh MacMahon indicated to the Board that the Mayor did not possess a veto over the Board. The Mayor has never seen MacMahon's opinion. Grattelo felt, based on the advice of City Solicitor Center, that the Board had the power to grant him a veto. Grattelo felt that the Board's adoption of an addendum to Robert's Rules of Order was sufficient to invest him with veto power over school matters. The newly-elected Board which granted Grattelo's veto authority was faced with renegotiation of several expired or expiring contracts left over from the previous administration. The Board also, at its December 14, 1993 meeting, approved the Mayor's appointment of Board members Joseph Jezar, Howard Hanson and Dana Peck as the Board's certified-employee contract negotiating team. Jezar was negotiating five collective bargaining agreements, plus thirteen individual contracts, at around this same time. The City Charter empowers the City Council to "determine its own rules of procedure and make lawful regulations for enforcing the same." The Charter also provides that the "city council shall act only by ordinance, order or resolve," that an "appropriation order or resolve shall be confined to the subject of appropriations only," and that "[e]very ordinance, order and -5- resolve shall require on the final passage the affirmation vote of (6) members of the [11 member] city council." Four City Councilors are elected at large and one City Councilor is elected from each of the seven City wards. Article V of the City Charter contains, in pertinent part, the following provisions with regard to the Board: Section 1 provides that the Board shall be composed of the Mayor, and seven (7) members elected at large by the registered voters of the City, with no more than two members from any one ward. Section 2 reiterates that the Mayor shall be the ex officio chair of the Board. Section 3 states that "the board of education shall meet for organization as soon as possible following the regular municipal election." Section 4 provides: The board of education shall have all the powers and perform all the duties in regard to the care and management of the department of education. The school board shall submit a proposed line item budget for the operation of the department to the finance committee in a timely manner which will allow the city council to act on a fiscal budget. The school board's proposed budget shall be presented to the council for consideration. The finance committee, if it so desires, shall submit its own proposals for certain functions for council consideration. The council's decision of the budget shall be final. Said proposed budget shall be comprised of expenditures for the functions of instruction, student support, staff support services, administration, operation and maintenance, pupil transportation, hot lunch program, debt service, and any other functions the board wishes to have funded for the fiscal year. The total approved for each individual function by a majority vote of council shall become the school board's aggregate fiscal year budget after having received its second reading. The school board shall not allow the transfer of funds from one function to another without first receiving a two-thirds vote from both itself and the city council. The board may appoint a superintendent of schools for a term not exceeding three (3) years, and the superintendent shall receive compensation at a rate determined by the board. The duties of the superintendent shall be those as prescribed by law and regulations. The superintendent of schools may be removed at the pleasure of the board. The superintendent of schools shall establish residence within the City of Biddeford within six (6) months of being hired. (Ref. of 11-2-93, H 8, 10) -6- Biddeford High School mathematics teacher Patty Buffum was at all material times the President of the Association, negotiating team co-chair, and a member of the Association bargaining committee, along with Doug McDonald, Ralph Jacques, Jean Filgate, Catherine Bissell, and Betsy Green. McDonald, a teacher at the Biddeford Middle School, was at all material times a building representative on the Executive Board of the Association and a negotiating team co-chair during the subject negotiations. At all material times Middle School math teacher Ralph Jacques was a member of both the Association Executive Board and the Association's negotiating team. Only Buffum, Jacques and McDonald were authorized by the Association's Executive Board to sit at the negotiating table. The Association's three-member team was formed in early 1994. The Board's negotiating committee is a standing committee appointed by the Mayor. The Board's negotiating team, throughout the parties' negotiations, was composed of Chair Joseph "Rene" Jezar, Dana Peck and Howard Hanson. Grattelo never filled or sought to fill a seat on the Board team. The Board team thought it had the authority to negotiate on behalf of the School Board and to bring back agreements with tentative approval. Two of the three Board team members testified that the Board's negotiating team was, from the start, given no instructions, guidelines, or ceiling for negotiating wage increases. We credit their testimony. The first negotiating session was in March of 1994. The Association's initial contract proposals were based on the results of a survey of the Association's entire membership. Ground rules were discussed, reached and initialed. The parties agreed that each side would have three regular negotiators and one floating negotiator whose identity could be changed on one week's notice. Neither party appointed a fourth member. The parties also agreed that their meetings would be closed, other than to team members, and that there would be no media coverage -7- of the substance of negotiating sessions. They also agreed upon the length of negotiating sessions, and upon when and where their meetings would occur. The parties agreed to initial their tentative agreements when reached. The parties' ground rules did not reserve or describe ratification procedures. There was no mention during the negotiation of ground rules that any tentative agreement reached would be presented for possible veto by the Mayor. The Association reasonably assumed that the ratification process "would be the same as the ratification process that had taken place over the past couple of decades . . . [,t]hat the contract is ratified by a majority of the [Association], and the contract is ratified by a simple majority of the board." The School Board's negotiating team told the Association's team that it would take tentative agreements back to the Board for approval. During one of the parties' first meetings, agreement was reached that wages would be considered later, toward the end of negotiations. The parties then began with Article 1 and went through the contract to determine which articles were not in contention. Very early in the negotiations, around March of 1994, Peck advised the Board that money would not be a big issue in Certified Employee negotiations. Hanson corrected Peck by stating that the Association was not looking for a large increase. The Board desired to put resources back into the classroom and the Board team informed the Association at the start that it would not be able to provide a large increase in the first year. The Board's members were "having a difficult time making up their minds as to what they would agree to for a wage package." The Board team postponed discussion of wages until late in negotiations because they "didn't have enough direction to make a firm commitment." The City spent the summer trying to bring all of the City's employees under the same insurance umbrella, and the Board team did not address wages at -8- that point. Grattelo asked Buffum to lunch in July of 1994, to speak about better communication between the Teachers and the Board, and to discuss the Board's new restructuring plan. The discussion centered on the Board's replacement of Vice Principals with Mediators, the role of Mediators and the Teachers' desire to have more communication for input purposes. They also discussed the Association's dispute with a voluntary transfer of a Teacher. Buffum asked that Grattelo use his veto on the Superintendent's RIF plan. Grattelo told Buffum it wouldn't work because it wasn't an appropriation. Buffum asked Grattelo whether, because the plans had different impact he could "look at it as an appropriation." Grattelo was not convinced. Grattelo asked if the Association was displeased with Superintendent Spugnardi and whether the Association "would consider taking a vote of no confidence in the Superintendent." Buffum was not aware through the summer of 1994, that the Mayor or the Board "were looking for a zero percent raise that first year." During negotiations the parties reached tentative agreement concerning, inter alia, the non-economic issues of personal days, reimbursement for credit and sick days. Tentative agreements were signed by Buffum and Jezar as previously agreed. Informal agendas were set at the end of each session for the parties' next meeting. Schedule A, which addresses wages and is located at the back of the tentative agreement, was one of the last issues to be discussed by the negotiators. The parties' negotiations turned to money items at their last meeting in November of 1994. McDonald and Jezar wrote on pieces of paper what, at their upcoming December meeting, they anticipated their opening wage proposals would be, and slid them across the table to each other. Jezar's piece of paper contained the acronym "COLA," which was clarified to mean cost-of-living adjustment. There was no evidence as to what the actual cost of living was for the first -9- year. Jezar suggested, at that time, that it was 2.5 for the Northeast Region. Buffum understood the "COLA" offer to represent a wage adjustment in the first year equal to the cost- of-living index. McDonald's piece of paper said "5 percent." The parties agreed that the "economic package" would be discussed at their next meeting in mid-December. Between the late November and mid-December 1994 meetings, Grattelo called Buffum around lunchtime at school. Buffum had often had conversations with Mayor Grattelo about school and Teacher issues. Grattelo told Buffum that he would like to meet with her "to discuss what was going on between the Teachers and the Board." Grattelo said "I think the two of us can sit down and iron this thing out." Buffum said she would have to check with the Association. Buffum spoke with Jacques about the conversation with Grattelo immediately after the call. Buffum informed McDonald that Grattelo had told her they should meet and get this settled, and that they "could talk it out, come to some agreement." Buffum told McDonald she didn't think she could do that and that she was going to take the matter to the Association's Executive Board. Buffum discussed the call with the full Association negotiating committee that afternoon. The Association Executive Board denied the Mayor's request to negotiate with the Association. The Executive Board emphatically agreed with Buffum that the negotiating committee should take care of negotiations. Buffum informed Board team members Jezar and Peck of Grattelo's November/December call at their mid-December, 1994 meeting. The Board team told the Association team that they should not be dealing with the Mayor, and that the Board team was going to discuss the matter with the Mayor. The Board team was angry at Grattelo's request. Jezar and Peck told Buffum that she was not to meet privately or negotiate with the Mayor about the contract. At the mid-December, 1994 meeting, the Association came -10- equipped with alternative spread sheets for three-year salary proposals of 3-4-5 and 4-5-5, but only put 4-5-5 on the table. No member of the Board team proposed "zero" for a first-year wage increase. Buffum told Grattelo that if he wanted to negotiate he should contact his negotiating team and fill the fourth chair. She informed the Board's team that the Association had no problem with the Mayor filling the fourth chair. Grattelo never indicated that he was interested in being on the team but he did ask the Board if he could meet with the Association. Although Buffum did not feel intimidated by Grattelo in general, she began to feel uncomfortable when he continued to attempt to discuss issues related to the contract away from the table. The parties had had several meetings regarding wages at the point at which the 10-percent-over-three-years proposal began to be discussed. In early January the Board team proposed a 2.5 percent cost-of-living adjustment with a 10 percent cap for a three-year period. The Board negotiating team did not share its initial wage proposal with the balance of the Board before presenting it to the Teachers and assumed it possessed the authority to reach a tentative agreement on the 10 percent increase. The Association counter-proposed 2.8, 3.5 and 4 percent over the three-year term. The Board team wanted employees to pick up 10 percent of the cost of their health insurance, and the Association proposed the initiation of dental insurance. The Association proposed 2.8, 3.5 and 4, agreed to pick up 10 percent of the health insurance but still wanted dental insurance. The Board team told the Association team that the Board was looking for a three-year contract, that it felt the Board would not go over 10 percent for wage increases over the three-year term, and that the Board would not accept more than a COLA for the first year of the contract. The Association lowered its wage increase proposal to 2.5, 3.4 and 4 percent -11- respectively, causing its proposal over the three years to total 9.9 percent. The Board team kept the Board informed of the progress of negotiations after the second meeting on wages. The Board team first suggested approximately 10 percent over three years to the full Board around January 4. However, at that time the Board team was told to renegotiate other issues, and the Board gave no indication of a desire for "zero percent" in the first year. The Board team also initially got no negative feedback on the nascent agreement on a 2.5 first year wage increase. There were some statements about a maximum for increases over the whole term of the contract but not about the 2.5. Grattelo first spoke to the Board team about wages after the team had proposed a 10 percent increase over a three-year period, but before the tentative agreement was reached. The Mayor was adamant that "zero [wa]s what he was looking for," indicated to the negotiating team his displeasure with the 10 percent package, but did not indicate that he was going to veto the contract. Two meetings elapsed between discussion of the Board team's "COLA" proposal and Association counter-proposals, and the first mention in negotiations of "zero percent." Buffum was made aware that Grattelo wanted no raise in the first year, in early January, prior to signing the tentative agreement in mid-January. When the Board team mentioned that "the Mayor's position was zero the first year . . . both sides kind of chuckled." An informal poll of the Board which showed weak support for the tentative agreement was the motivation for the Board team's taking the Mayor's proposal back for discussion with the Association team. The Board team did not support it, however. The Board team went back to the Association team and discussed what the Board had said. However, the Board team made no actual proposal for a "no first year increase contract." At no time during negotiations did the Board's negotiating team ever formally propose that there be no raise during the first year of the prospective contract. -12- Peck informed the Association before the tentative agreement was reached that there was a chance that the contract might not be ratified and that they might have to agree to something less than 2.5 percent in the first year. Lack of an increase in the first year was never acceptable to the Association. Buffum informed Jezar that she would not consider or present a contract to the membership for ratifi- cation, which had no raise in the first year. The Association team stated that they'd been negotiating for over a year and it was time to put what the Board and the Association teams had agreed to on the table and get a vote on it. A tentative agreement (TA) was reached at a second meeting in mid-January, 1995. The non-economic issues were already agreed to at that time. The term of the TA is from September 1, 1994, through August 31, 1997. Signing of the TA by the teams did not occur at this meeting for lack of clean spread sheets. Following this meeting Jezar requested that McDonald put the TA together, with copies for the Board. McDonald gave Buffum clean copies for each Board member and she delivered them to Jezar. The TA was signed after further negotiations at the signing meeting. The parties finally agreed to wage increases of 2.5, 3.4 and 4 percent due to the parties' settlement of an issue respecting the retroactivity of insurance. Buffum met with Peck and Hanson after the mid-January meeting to sign the TA. Jezar was not present when the TA was signed. Discussion of ratification procedures surfaced only toward the end of negotiations when the Board team spoke about whether they had the votes necessary to pass the contract. After the January 10, 1995 executive session and the report which Buffum got on January 18 from the Board negotiators, it became obvious to her that there was some dissent on the Board and that the vote would probably not be unanimous. Jariz was thought by the Association to be a swing vote. -13- Buffum never doubted the good faith of the Board's team during negotiations. Jacques was satisfied with the Board's good faith during bargaining, as well. No mention of the veto power was made during negotiations. In February, Buffum took the TA to a general meeting of the Association's membership. Peck mentioned prior to mid-March and at the last stages of the parties' negotiations that "the Mayor would like to see a zero percent increase. But he never said that was the intent of the negotiating [team] or the entire school board." At the very end of negotiations the Board team suggested a first year "zero increase" for teachers who had already had their steps and 3 percent for those who hadn't. This hybrid proposal was discussed after the reaching of a TA but before the Association's ratification vote. An Association favorable ratification vote was conducted on March 23. On March 14, 1995, at a regular Board meeting, Grattelo spoke with Buffum. The TA was on the agenda for the executive session at the March 14 meeting. Buffum had attended to monitor any progress on the contract although only executive session discussions had been agendaed. Buffum attends most Board meetings and has occasionally been asked to speak. Grattelo told Buffum he "absolutely need[ed] a zero percent increase for the first year." Grattelo said "[m]aybe we could have 4 percent, 4 percent for the next two years or maybe 4 1/2, 4 1/2 but I need to have a zero percent increase for that first year." Grattelo told Buffum that he wanted to talk to the general membership, because he had facts and figures that would convince them that he had to have zero percent the first year. Buffum told Grattelo that it was improper for him to approach her, that the Association already had a TA with the Board's negotiating team, and that he should be talking to them--not to her. Grattelo insisted on the necessity for "no increase" in first year wages even after Buffum told him at the March 14 meeting that the Board's negotiating team had told her that she should not discuss -14- the contract with him. At this point both teams had informed Buffum that she should not negotiate with Grattelo in private. Buffum informed Jacques of Grattelo's request the next morning, and informed Peck of the conversation. Buffum and Jacques spoke with Grattelo after a March 28, 1995 Board meeting at which the TA, although on the agenda to be voted on, was tabled. At this March meeting the Board team updated the Board on negotiations. Three of the School Board members "just went crazy" after looking at the negotiated wage provisions. They wanted a 0, 3 and 3 contract. The four non- team Board members and the Mayor informed the team that they wanted "no increase" in the first year. Grattelo indicated that it was his understanding from the start of negotiations that the Teachers did not want a wage increase. This was the first time the Board team was aware that the "zero percent" issue was going to be a real problem. Some of the Board members felt that the "superintendent got zero percent, the administrators were getting zero percent and the teachers were going to get zero percent." It was at this meeting that a suggestion of the rediscussion of wages and the issue of the Mayor's desire for Board permission to meet with the Association first arose before the full Board. The discussions about the contract at the March 28 meeting were in executive session. The Board voted to table the TA. Immediately after the contract was tabled and the March 28 meeting adjourned, Grattelo approached Buffum and Jacques and told them that the tabling meant that the Board wanted him to go to the Association membership and talk to them about the contract. Grattelo had met with the secretaries and negotiated some issue settlements. He also had "stepped into" the contract negotiations of the fire department and the administrators. Although Grattelo said he had literally been given the "okay" by the Board to ask to meet with the Association membership directly, McDonald and Buffum told him he could not. Grattelo -15- replied "yes, I can, all I need is for you two to allow me to do that." McDonald responded that he didn't think it was right. Grattelo repeated his request. Buffum responded that the Association had ratified, that the Board was required to ratify or reject and that it was improper for Grattelo to speak with the membership. Buffum told Grattelo she would consult with the Association's attorney. Grattelo indicated that the Board didn't support the tentative agreement. Grattelo told Buffum that he had veto power over Board action. This was the first time Buffum had heard of such, and she did not "connect up this veto power that he referred to at all to the ongoing . . . negotiations." Grattelo phoned Buffum at home during the April vacation to determine what the Association had decided about allowing him to speak to the membership. Buffum told Grattelo the Association's attorney had said it would be improper, that the Association had ratified and that he could not meet with the membership. She told him there was a letter in the mail. Buffum's letter, telling Grattelo her attorney had disapproved his direct contact with unit members, reached Grattelo after he called Buffum to ask her again. Buffum immediately told Jacques of the call. Jacques first heard that Grattelo intended to exercise a veto during this April conversation with Buffum. Grattelo's requests to speak to the membership were always of Buffum, and Grattelo never bypassed or threatened to bypass Buffum. after she rebuffed him. Grattelo never spoke directly with Jacques, McDonald, or any of the membership. Grattelo was confident the TA would fail, four to three, when the TA came up before the Board for a vote on April 25, 1995. After an executive session in which the Board discussed "the financial aspects of the 9.9 raise and how it affected the step increases," the vote was four to three in favor of ratification. "[TIhe Mayor did not vote, choosing to vote -16- (sic) the order." The Board Administrators' contract had been unanimously ratified by the Board earlier in the meeting. Upon ratification of the Certified Employee agreement, Grattelo announced that he was vetoing the ratification, and after a five- minute break explained that he had done so because he wanted to bring City employees on par with the Teachers. Grattelo expressed his disappointment that no agreement on a "zero percent the first year" was reached and explained all his reasons: the Teachers had received an 18 percent increase in wages over the last five years, the Administrators had received 21 percent over the five years, he had other contracts and had only so much money to spend, he was trying to do the right thing for the entire City, and it was the City's year to catch up. The Mayor further explained that analyzed against the state average, Biddeford was clearly above the state average on the School side when it came to salaries and well below the state average on the City side. An attempt to override the Mayor's veto failed by a four-to-three vote. McDonald and Buffum attended the April 25 Board meeting and witnessed the ratification, the veto and the Board's attempt to override the veto. Buffum. delivered a letter dated April 26, 1995, to Superintendent Spugnardi, which requested, on the advice of Association Attorney Shawn Keenan, that both sides meet to sign the agreement. Keenan's advice to the Association was that the City Charter does not give the Mayor veto power over the Board. Spugnardi sent Buffum a letter stating that he would inform iezar and Grattelo of her request. Center corresponded on April 27 that he felt there was no agreement due to the Mayor's veto, and that, therefore, no arrangements to sign would be made. Buffum was in attendance at a May 9, 1995 Board meeting at which Grattelo indicated that he was not interested in renewing the contracts of Probationary Teachers because "it was bad business sense to renew somebody's contract when you had not -17- settled the contract." Grattelo felt that the Board would be compromising its position on the Teachers' contract if it approved Probationary Teacher contracts, and that it all should be done together. Superintendent Spugnardi mentioned to Grattelo that his opposition to the renewal of Probationary Teachers' contracts could be construed as a prohibited practice. Probationary Teachers got their contracts renewed later during the May 9, 1995 Board meeting. The Association received a May 10, 1995 ten-day notice requesting resumed contract negotiations from Mike Wing of the Maine Municipal Association. Wing, who had not previously attended the parties' negotiations, indicated that the Board had appointed him as their negotiator. Buffum contacted the Association's attorney. On May 17, 1995, Association Attorney Keenan sent the Board a letter stating that the Mayor had exceeded his authority in vetoing the Board's ratification. DISCUSSION The Association's charges fall into the following four categories, which we will address seriatim: 1. The Mayor's exercise of a veto over the Board's four-to-three ratification of the parties, tentative agreement constitutes interference, restraint and/or coercion in violation of 26 M.R.S.A. 964(1)(A) (1988). 2. The Board's refusal to execute the tentative agreement ratified by the Association and the Board constitutes a refusal to bargain in violation of 26 M.R.S.A. 964(1)(E) (1988). 3. The Mayor's insistence upon speaking to unit members directly and his opposition to the renewal of probationary teachers' contracts constitute violations of 26 M.R.S.A. 964(1)(A) and (B) (1988). -18- 4. The Board's failure to clothe its negotiators with sufficient authority to negotiate a tentative agreement or, alternatively, the Board team's negotiation of and agreement to wage terms known to be unacceptable to the Board, as well as the Mayor's insistence on pay parity between teachers and other city employees, constitute refusals to bargain in good faith and violations of 26 M.R.S.A. 964(1)(E) (1988). As is more fully explained below, we find that the Association has proven violations based on the substance of the events charged in paragraphs 1 and 2 above. The Association has also proven a violation based on its charge that the Board failed to clothe its negotiators with sufficient negotiating authority. I. THE MAYOR'S VETO OF THE BOARD'S RATIFICATION VOTE In light of the Association's previous ratification we are required to determine whether the parties' tentative agreement was ratified by the Board, so that we may order the parties either to resume bargaining or to subscribe to and comply with the terms of the tentative agreement retroactive to the date of the Board's ratification. The dispositive questions, with regard to the Association's allegations that the Mayor's veto and the Board's failure to execute constitute unlawful refusals to bargain, are whether there was a ratification when the Board voted four to three to approve the tentative agreement, and whether the Mayor's veto and the Board's failure to override constitute failure of Board ratification. We find that the Mayor did not possess the authority to veto the Board-approved tentative agreement and that, since the Association had previously ratified, the parties' tentative agreement became a binding contract on April 25, 1995, the date of the Board's ratification. We are not required to determine the effects, in other areas, of the Board's attempt to establish a mayoral expenditure veto and a two-thirds Board -19- override. Resolution of this case requires us to engage in statutory interpretation in an area of municipal law with which we have no special expertise. This is not the first time, however, that we have been required to analyze matters lying outside our area of special expertise, in order to decide issues within our jurisdiction. In discharging our prohibited practice case- handling responsibilities we have been required to interpret contracts,[fn]3 scrutinize personnel decisions,[fn]4 resolve constitutional issues,[fn]5 and interpret a wide variety of statutory provisions,[fn]6 all falling outside our area of special expertise. While we realize that the courts will accord no special deference to our interpretations in these areas, our interpretations are nonetheless necessary prerequisites to the discharge of our original jurisdiction. See generally Wone v. City of Portland, 466 A.2d 1256 (Me. 1983). _______________ 3 See State v. MSEA, 499 A.2d 1228, 1230 (Me. 1985) (although the MLRB has no jurisdiction over contract violations, it must occasionally interpret the provisions of contracts in determining refusals to bargain vel non). 4 See Teamsters Union Local 340 v. Town of Fairfield, No. 94-01 (Me.L.R.B. Dec. 5, 1994) (although MLRB has no jurisdiction over personnel decisions, it does examine disciplinary actions where procedures used are alleged to be highly irregular and the discipline imposed is alleged to be so out of proportion to the offense committed that it is alleged to give rise to an inference of discrimination). 5 See Collier v. Penobscot Bay Teachers Association, No. 92-30 (Me.L.R.B. Sept. 25, 1992), aff1d, No. CV-92-478 (Me. Super. Ct., Ken. Cty., Apr. 10, 1993) (First Amendment free speech), Northern Aroostook Teachers' Association v. MSAD #27 Board of Directors, No. 81-52, 4 NPER 20-13003 (Me.L.R.B. Nov. 19, 1981) (First Amendment free speech). 6 MSEA v. State, No. 92-19 (Me.L.R.B. Jan. 6, 1994) (Maine Comprehensive Emergency Preparedness Act), Gallant v. Maine Department of Public Safety, No. 92-32 (Me.L.R.B. Feb. 2, 1993) (Maine Retirement Incentive Option), MSAD No. 54 Education Association v. MSAD No. 54, No. 86-12, 9 NPER ME 18004 (Me.L.R.B. Oct. 8, 1986) (Maine Workplace Smoking Act), Maine State Employees Association v. State of Maine, No. 85-19, 8 NPER ME 17004 (Me.L.R.B. Dec. 2, 1985) (Fair Labor Standards Act), Auburn Firefighters Association v. Morrison, No. 83-10, 5 NPER 20-14014 (Me.L.R.B. Mar. 9, 1983) (Workers Compensation Act). -20- A. A Simple majority of those Board members present and voting was sufficient for ratification. Where a right of ratification is reserved by both parties, an enforceable contract results at the time of the last favorable ratification vote. To avoid confusion, we have consistently urged parties to agree on ground rules incorporating any reserved ratification procedures, and to memorialize any such agreements in a signed writing. Biddeford Unit of Local 1828 Council 74 AFSCME v. City of Biddeford, No. 75-33, slip op. at 2 (Me.L.R.B. Dec., 10, 1975). Teamsters Union Local 340 v. Town of Lincoln, No. 91-07, slip op. at 5 n.1 (Me.L.R.B. Dec. 28, 1990). No written ground rule regarding ratification was alleged or established here; however, it is undisputed that the parties' tentative agreements have historically been submitted for ratification by a simple majority of the Board.[fn]7 Our inquiry now turns to whether, with all eight members present and with no vote cast by the Mayor, a four-to-three vote by the Board was effective for ratification of the tentative agreement.[fn]8 Although a different rule may by operation of law apply to quasi-judicial or other types of action by the Board, we conclude that the majority vote of those Board members present and voting at the April 25, 1995, Board meeting was sufficient for ratification of the tentative agreement. _______________ 7 Buffum testified that this has been the practice for the past two decades. The Board contends that the establishment of a mayoral veto was effective notice of a change in ratification procedures. we disagree. However, our further finding that the veto procedure itself was improperly adopted by the Board makes this issue of notice irrelevant. 8 The Board has not argued in the alternative that it illegally deprived the Mayor of a right to vote on matters such as contract ratification, and it is not necessary for us to determine this issue. We note, however, that the Mayor, and not the Association, was in the best position to challenge the Board's action in this regard. Moreover, the Mayor apparently chose not to vote. We cannot in fairness permit the Board's possibly illegal action, or the mayor's failure to challenge it, to result in failure of ratification here. Compare Selectmen of the Town of Sanford v. Council 93, AFSCME, No. 92- 03 (Me.L.R.B. Apr. 6, 1992) (party's own conduct insufficient basis for voiding ratification of arms-length agreement). -21- Since the April 25, 1995 Board meeting was attended by all of the Board's members, there can be no question that free and full consideration of the merits of the tentative agreement was possible. The four-to-three vote on the tentative agreement constituted a favorable vote by a majority of Board members present and voting. The Biddeford City Charter does not require unanimity or an absolute majority for Board action. Additionally, although the Charter in Article X compels the Board to meet for organizational purposes, we do not interpret that Charter provision to empower the Board, by subdelegation, to establish its own decisional rule. As is discussed in more detail later in this decision, state law provides a "simple majority" decisional rule by default, where no other decisional rule has been expressly provided by statute.[fn]9 The City cannot by Charter provision establish by itself, or empower the Board to establish, a Board general decisional rule or a Board decisional rule for expenditures[fn]10 at variance with those expressly provided _______________ 9 Title 1 M.R.S.A. 71(3) (1989) states that "in the construction of statutes, unless such construction is inconsistent with the plain meaning of the enactment . . . [w]ords giving authority to 3 or more persons authorize a majority to act, when the enactment does not otherwise determine." 1O The Maine Revised Statutes provide, in pertinent part, as follows with regard to Board votes on expenditures: Municipal schools. Money appropriated for public schools for educational purposes may be paid from the treasury of a municipality by the treasurer of the municipality in the following circumstances: A. Upon written order of the municipal officers following receipt of a bill of items certified by the superintendent of schools and approved by a majority of the school board or by a finance committee appointed or duly elected by the school board; or B. Upon presentation of a disbursement warrant as provided in Title 30-A, section 5603, subsection 2, paragraph A, subparagraph (2). 20-A M.R.S.A. 15006(l) (Pamph. 1995). The pertinent provisions of Title 30-A M.R.S.A. 5603(2) (Supp. Pamph 1995), are as follows: Duties. The treasurer shall: A. Except as provided in subparagraphs (1) and (2), disburse money only on the authority of a warrant drawn for the purpose, affirmatively voted and signed by a majority of the municipal officers. -22- by statute. Nor is there any evidence that the Board itself adopted absolute majority as a decisional rule, even if it had had the power to do so. The common law rule is that so long as a quorum is present, a measure can be passed by a simple majority of those voting. See FTC v. Flotill Products, 389 U.S. 179, 183 (1967). 1 ANTIEU, MUNICIPAL CORPORATIONS 4.11, at 4-32 (1991), 4 McQUILLAN, MUNICIPAL CORPORATIONS 13.30, at 820-21 (1992), 0. REYNOLDS, LOCAL GOVERNMENT LAW 191-93 (1982). Furthermore, the record establishes that the Board voted at its organizational meeting to adopt Robert's Rules of Order, which provides, respecting the number of votes required for action, as follows: 43. BASES FOR DETERMINING A VOTING RESULT Majority Vote - the Basic Requirement As stated on page 4, the basic requirement for approval of an action or choice by a deliberative assembly, except where a rule provides otherwise, is a majority vote. The word majority means "more than half"; and when the term majority vote is used without qualification--as in the case of the basic requirement--it means more than half of the votes cast by persons legally entitled to vote, excluding blanks or abstentions, at a regular or properly called meeting _______________ (1) The municipal officers may adopt a written policy to permit the disbursement of employees, wages and benefits when a disbursement warrant has been signed by one or more designated municipal officers. The policy must be filed with the town clerk and the municipal treasurer and renewed annually by vote of the municipal officers. (2) The municipal officers may adopt a written policy to permit the disbursement of payments for municipal education costs when a disbursement warrant has been signed by the school superintendent and approved by a majority of the school board or by a finance committee appointed or duly elected by the school board. The policy must be filed with the town clerk and the municipal treasurer and renewed annually by vote of the municipal officers; -23- at which a quorum (39) is present.[fn]11 THE SCOTT, FORESMAN, ROBERT'S RULES OF ORDER NEWLY REVISED 43 AT 395 (9th ed 1990) (Emphasis added). Finally, the statutory provision which provides for a decisional rule by default, merely "authorize[s] a majority to act." See 1 M.R.S.A. 71(3) (1989). We find that because seven members of the eight-member Board acted on the measure by voting and because a majority of voting members voted for ratification, the statutory requirement of majority action has been met. In the facts of this case and given the Mayor's ostensible inability to vote except to break a tie, a two-thirds majority would require a Board vote of five to two, or just over 71 percent of the Board.[fn]12 We think such a requirement would seriously frustrate contract formation, a very obvious purpose underlying the entire statutory scheme of the MPELRL. See 30-A M.R.S.A. 3001(3) (1996), School Committee of the Town of York v. Town of York, 626 A.2d 935 (Me. 1993). See generally Maine State Employees Association v. State of Maine, No. 92-19, slip op. at 36 (Me.L.R.B. June 6, 1994). Having determined that the four-to-three vote, a simple _______________ 11 Section 43 of Robert's Rules reiterates the concept of "the majority present and voting" as a default decisional rule, in a passage entitled "Modifications of Usual Bases for Decision," which provides: By modifying the concepts of a majority vote and a two-thirds vote, other bases for determining a voting result can be defined and are sometimes prescribed by rule. Two elements enter into the definition of such bases for decision: (1) the proportion that must concur--as a majority, two thirds, three fourths, etc., and (2) the set of members to which the proportion applies--which (a) when not stated, is always the number of members present and voting (assuming there are no illegal voters), but (b) can be specified by rule as the number of members present, or the total membership, etc. Robert's Rules of order, supra, 43 at 397-98. 12 Although we grant great deference to collective bargaining agents in the establishment of ratification procedures as a proper matter of internal union affair, we nonetheless require the decision of any union ratification body to be made on the basis of the best interests of the majority of unit members. See Collier v. Penobscot Bay Teachers Association, No. 92-30, slip op. at 13-17 (Me.L.R.B. Sept. 25, 1992), aff'd, No. CV-92-478 (Me. Super. Ct., Ken. Cty., Apr. 10, 1993). -24- majority, was sufficient to bind the Board, we must consider the efficacy of the Mayor's veto. We find that the Board's grant of veto power to the Mayor was ultra vires and, therefore, had no legal effect. B. The Charter of the City of Biddeford does not give the Mayor a veto power over the Board's expenditures. The Board's action is at odds with the City Charter's express provision that, although the mayor is a member, and ex officio chair, of the eight-member Board, "[t]he Board . . . shall have all the powers and perform all the duties in regard to the care and management of the department of education." The separate authority of the Board in educational matters is echoed in Article I, Section 2, which provides as an exception to the general administrative powers of the mayor and the members of the city council, that "the general management, care, conduct and control of the schools . . . shall be vested in a board of education." Similarly, Article II, which provides that the mayor is the "chief executive magistrate of Biddeford," specifies, inter alia, that with the exception of the administration of the departments of education and police, the mayor shall "sign all warrants to be paid from the treasury after appropriations by the city council" and "exercise control over all departments . . . and boards created [in the City's Charter]." The Board relies on School Committee of Town of York v. Town of York, 626 A.2d 935 (Me. 1993), in support of its argument that the Board properly invested the Mayor with veto authority over Board expenditures. We find Town of York inapposite, however, because Biddeford's Charter does not grant the Mayor veto power over Board expenditures, appropriations, or even the Board's proposed budget submission. We find nothing in Biddeford's Charter which supports the disproportionate presence which the Board has apparently attempted to grant the Mayor under the guise of Charter- -25- authorized organizational specification. Absent a specific Charter provision enacted by the City pursuant to its home-rule authority, such as has been done respecting Board budget proposals, we conclude that the Board retains the broad authority over most details of education, see 20-A M.R.S.A. 1001(2) (1993), and the specific authority to set teacher salaries, which has been traditionally recognized by the MLRB and the courts. See City of Lewiston v. Lewiston Educational Directors, 503 A.2d 210, 213 (Me. 1985). We also find that the Mayor's impact upon decisions committed to the jurisdiction of the Board is clearly intended by statute and charter to be no greater than any other single member of the eight-member board. Allowing the Board to do what it has attempted in this case would be tantamount to permitting the Board to amend the City Charter. Accordingly, we conclude that the Board's attempted grant of a veto over expenditures and its provision for a two-thirds override thereof were ultra vires. C. Even if the Mayor's veto had been authorized by the City Charter it would have been improper under Maine's Statutes because Schools Boards possess exclusive statutory authority to set Teachers' salaries. It is clear that the Board's attempted investment of Grattelo with veto power over "expenditures" was meant to remedy the failure of the previous mayor to successfully veto Board- granted "pay raises" for the Superintendent, the Assistant Superintendent and a bargaining unit of Administrators. It is, however, school boards, alone, which possess statutory authority to set the salaries of teachers. 20-A M.R.S.A. 13201 (1983); City of Lewiston v. Lewiston Educational Directors, 503 A.2d 510, 513 (Me. 1985). Therefore, even under the broad home-rule authority which it possesses pursuant to 30-A M.R.S.A. 3001 (1996), see School Committee of the Town of York v. Town of York, 626 A.2d 935 (Me. 1993), the City of Biddeford cannot, through charter, ordinance or otherwise, abrogate the Board's authority to set teachers' salaries, or authorize the Board to abnegate its -26- statutory responsibility to set teachers' salaries. D. Even if the City Charter had granted the right to veto and the grant did not contravene the statutes the Mayor's veto was not exercised in accordance with the letter or the purpose of the grant. Even assuming, arcruendo, a right in Grattelo to veto any "expenditure" of the Board, Grattelo's veto here was not merely a veto of an "expenditure."[fn]13 Grattelo's veto was clearly intended to disapprove the negotiated salary increases for teachers during the first year of the three-year contract.[fn]14 The effect of his veto was, however, to veto the entire previously-ratified tentative agreement. Grattelo's veto, therefore, was not exercised in accordance with the express terms of the Board's attempted grant.[fn]15 By establishing an unlawful ratification procedure the Board has refused to bargain in good faith, in violation of 26 M.R.S.A. Sec. 965(1)(D) (1988). _______________ 13 In its brief the Board repeatedly, but erroneously, refers to the Mayor's action as a veto of appropriations. The Board does not appropriate its own funds. The definition of "appropriation" includes "the act of appropriating . . . to a particular use" and "something that has been appropriated; specif: a sum of money set aside or allotted by official or formal action for a specific use (as from public revenue by a legislative body that stipulates the amount, manner, and purpose of items of expenditure)." Webster's Third New International Dictionary, 106 (1981). 14 The amount of "expenditures" for the salaries of teachers in the first year was not an ascertained amount because the first year had not been completely performed. 15 The definition of "expenditure" includes "the act or process of expending" as well as "something that is expended." Webster's Third New International Dictionary, 800 (1981). Neither the wage increase which the Mayor intended to veto here, nor the tentative agreement which he actually vetoed constitute "expenditures." They do, however, vitally affect any determination of the Board's anticipated "expenditures for its function of instruction, student support . . . and any other functions) the board wishes to have funded for the fiscal year," which, in turn, are used to comprise the Board's proposed line item budget which is presented first to the finance committee and then the council. See Biddeford City Charter, Article V, Section 4. -27- II. REFUSAL TO EXECUTE A FINAL AGREEMENT Because we find that the Mayor's veto and the failure of the Board to override were nullities, we also find that the parties possessed an enforceable agreement upon the Board's four-to-three ratification vote on April 25, 1995.[fn]16 See 26 M.R.S.A. 965(1)(D) (1988). Because the Board possessed no valid excuse for failing to sign the agreement upon the Association's April 26, 1995, request, we conclude that the Board's failure constitutes an unlawful refusal to bargain in violation of 26 M.R.S.A. 964(1)(E) (1988). See Teamsters Union Local No. 340 v. City of Biddeford, No. 93-25, slip op. at 13 (Me.L.R.B. June 3, 1993). III. DIRECT DEALING AND OPPOSITION TO THE RENEWAL OF PROBATIONARY TEACHERS' CONTRACTS We find no unlawful direct dealing in the facts of this case. Grattelo went no further than non-threatening, albeit repeated, requests of Buffum for permission to contact unit members directly. It is solely because Buffum was not coerced or intimidated by these requests, firmly refused them and shared their occurrence with her fellow team members and members of the Board team that we refrain from finding a violation. Although we do not find unlawful direct dealing, we do not endorse the actions taken by Grattelo in repeatedly attempting to communicate directly with unit members. Grattelo should have sought to fill the fourth chair on the Board team; instead his attempted end runs of the Board were disruptive and bordered on undermining the _______________ 16 Interest on wage increases due to be paid retroactively in accordance with this decision shall be calculated in accordance with Florida Steel Corp., 231 NLRB 651 (1977), utilizing the interest rates specified in New Horizons for the Retarded, Inc., 283 NLRB 1173 (1987). Thus, interest is to accrue commencing with the last day of each calendar quarter of the time period subject to reimbursement, on the total amount then due and owing at the short- term federal rate then in effect, and continuing at such rate, as modified from time to time, until the City has complied with this order. The short- term federal rate for the periods indicated is: 8 percent from July 1, 1994 to September 30, 1994; 9 percent from October 1, 1994 to March 31, 1995; 10 percent from April 1, 1995 to June 30, 1995; 9 percent from July 1, 1995 to March 31, 1995; and 8 percent from April 1, 1996. -28- authority of the Board to engage in collective bargaining. In light of the Board's apparent disregard of the Mayor's statement, reflected by the Board's immediate action in approving Probationary Teachers' contracts, we find no independent violation based on the Mayor's statement that consideration of the renewal of the contracts of Probationary Teachers should be postponed. IV. FAILURE TO CLOTHE NEGOTIATORS WITH SUFFICIENT AUTHORITY AND INSISTENCE ON WAGE PARITY We also find that the Board team failed to give its negotiating team sufficient instruction respecting their latitude in negotiating wage increases. We need not comment upon the importance of contractual wage provisions. When a right of ratification has been reserved, we think it is impossible for a bargaining team to engage in good faith negotiations where, as here, the team has no idea of whether specific agreements reached will have any likelihood of success in ratification. See Kittery Employees Association v. Eric Strahl, No. 86-23, slip op. at 13, 9 NPER ME-18010 (Me.L.R.B. Jan. 27, 1987) (citing City of Westbrook v. Westbrook Police Unit, No. 81-50, slip op. at 6, 4 NPER 20-12044 (Me.L.R.B. Sept. 24, 1986). The evidence establishes that the Board team had been given absolutely no guidelines respecting wage increases. Lack of adequate guidelines respecting negotiating authority is a clear violation of the statutory duty to negotiate in good faith. See 26 M.R.S.A. 964(1)(E) and 965(1)(C) (1988). Because we have found the Mayor's veto invalid, we needn't reach the issue of whether the Mayor's veto was impermissibly based upon an insistence on overall wage parity with other City employees. We do not find the award of attorney's fees warranted in the facts of this case. -29- 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) (1988 & Supp. 1995), it is hereby ORDERED that: I. The Biddeford Board of Education, its agents and representatives, shall: A. Cease and desist from unlawfully refusing to bargain in good faith with the Biddeford Teachers Association, by refusing to sign and perform negotiated agreements, or by failing to clothe its negotiating team with sufficient authority and/or instructions to negotiate a collective bargaining agreement. B. Bargain in good faith with the Biddeford Teachers Association by: 1. Immediately signing and performing its September 1, 1994, through August 31, 1997, collective bargaining agreement with the Biddeford Teachers Association. 2. Reducing any future mutually ratified agreements to a signed writing. 3. Clothing its bargaining team with sufficient authority and/or bargaining instructions. C. Take the following affirmative action that is necessary to effectuate the policies of the MPELRL: 1. Sign, date and post, within 10 calendar days of the date of issuance of this decision and order, at all locations where notices to its certified personnel are customarily posted, copies of the attached "Notice." The Notice shall remain posted for a period of two weeks. 2. Notify the MLRB's executive director, in writing, within 25 calendar days of the issuance of this decision and order, of the steps that have been taken to comply with this order. -30- II. The complainant's remaining allegations are dismissed. Issued at Augusta, Maine, this 17th day of June, 1996. MAINE LABOR RELATIONS BOARD The parties are advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. /s/___________________________ 1995), to seek review of this Kathy M. Hooke decision and order by the Alternate Chair Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within /s/___________________________ fifteen (15) days of the date Wayne W. Whitney of issuance of this decision Alternate Employee and order, and otherwise Representative comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. Employer Representative Howard Reiche, Jr., filed a dissenting opinion. -31- DISSENTING OPINION I dissent. There are several problems with the majority decision in this case. The first and most important is that the MLRB is not statutorily authorized or compelled to assess the efficacy of the Biddeford School Board's delegation to the Mayor of veto power over expenditures of the School Board. That question is one of general municipal law properly resolved by the courts upon request for review pursuant to Rule 80B of the Maine Rules of Civil Procedure or declaratory relief under 14 M.R.S.A. 5954. Unless there are blatant violations of well-established law (i.e., civil rights, free speech, etc.), we should presume that the procedures used were legal. See generally 30-A M.R.S.A. 3001(92) (1996). The MLRB has no special expertise in this area and the courts will accord no deference to any decision by the MLRB in this regard. Nothing in our case law prohibits the ratification procedure used here. The School Board, just as the union, possesses the right to structure its ratification procedures in any manner it finds suitable. The Association's chief negotiator was present and was aware of the School Board's investment of veto power in the Mayor, at a regular official School Board meeting. If a union might invest a single individual[fn]17 with the authority to ratify a tentative agreement, then surely the School Board's creation of a mayoral veto requiring a School Board two-thirds "override" was permissible. The Board did not divest itself of the power to decide questions concerning expenditures. It merely established a mayoral veto as the triggering device which would require the Board to pass any such measures by a two-thirds vote rather than _______________ 17 Such a procedure would be subject always to the requirement that ratification be on the basis of the best interest of the majority of the unit. See Collier v. Penobscot Bay Teachers Association, No. 92-30, slip op. at 13- 17 (Me.L.R.B. Sept. 25, 1992), aff'd, No. CV-92-478 (Me. Super. Ct., Ken. Cty., Apr. 10, 1993). -32- by a simple majority. Pursuant to the City Charter, the Board in its organizational session can establish any decisional rule for its official action, even unanimity, as long as it does not contravene the requirement of a majority vote. The Board has not done anything indirectly which it was not empowered to do directly. Cf. International Paper Company v. Town of Jay, 665 A.2d 998, 1002 (Me. 1995), Central Maine Power Co. v. Town of Lebanon, 571 A.2d 1189, 1195 (Me. 1990). The requirement of a majority has not been contravened; it has only been made more stringent here by requiring a two-thirds vote to override the Mayor's veto. Pursuant to the common law only a simple majority of a bare quorum is required for the School Board to act. With an eight- member board such as the present one, the common law rule would permit board action by just three board members voting together, where a bare quorum of five members were present. Maine's statutes prevent this. Maine's statutes provide a decisional rule of majority action, clearly in derogation of the common law. I think it's clear that 1 M.R.S.A. 71(3) (1989), which "authorizes a majority to act," requires a majority of the total number of the School Board's members to act, and that the four favorable votes on the tentative agreement, therefore, fall one vote short of the number required for ratification. There is no Maine case directly on point; however, similar issues have been resolved elsewhere in a manner consistent with my thinking on how the matter should be decided--were we to arrogate to ourselves the issue of what number of members are required for the School Board to act lawfully here. The Attorney General of Massachusetts, opining on the question of whether the state's General Laws, Chapter 4, Section -33- 6, clause fifth,[fn]18 which gives authority to a majority of officers, requires an absolute majority, has stated: I answer your question to the effect that official acts of the commission are required to be based upon a majority vote of the full commission. Although a majority of the commission constitutes a quorum which may transact necessary business, a vote by a majority of such quorum, when it is less than a majority of the entire commission, does not constitute action by the commission as such. The following passage from a Massachusetts Law Quarterly article, which concludes that the Massachusetts statutes do not embrace the common law rule that a simple majority of a bare quorum may act, expresses some of the concerns which I have with allowing less than a majority of the Board's full membership to act: [W]hile a majority if duly notified is a quorum for consideration of action if they agree, yet, if they disagree, a majority of the whole number should be required in order to decide and act. That is the obvious rule for a board of three. Why should it differ for a board of five or seven or more? The purpose of the larger number would seem to be to have more than two or three "assist each other" in deciding . . . . Whatever the rule in earlier days when life was simpler and delegated power less common, the enormous expansion of administrative boards with delegated power so that land owners, business men and citizens generally can hardly turn a corner in life without running up against a "board", suggests the question whether they are not entitled to the protection of the judgment of a majority of the whole board. Have the standards of careful fairness of each individual member of "boards" kept pace with the modern increase in numbers or not? Is, or is not, the tendency in the direction of petty "tyranny" in the form of ill considered arbitrary action under statutes often vague, or themselves arbitrary in their _______________ 18 Massachusetts G.L. C. 4, 6, Fifth, provides that: Words purporting to give a joint authority to, or to direct any act by, three or more public officers or other persons shall be construed as giving such authority to, or directing such act by, a majority of such officers or persons. -34- delegation of power to members selected politically, or otherwise, without special knowledge, training, experience, fair-mindedness, consciousness of responsibilities, or otherwise? Should not the "people" subjected to such delegated power be entitled to the judgment of a majority of the whole before action? If not, why not? Kelleher, When Can, or Should a Majority of a Majority of a Public Board Act? Suggestions Requested, 37 MASS L.Q. 27, 37-38 (1952). Because of the seriousness of matters of educational policy I think a School Board ought to be able to require as high a threshold for action as the two-thirds vote here. Grattelo's vote is merely that of a triggering mechanism to engage that permissible high standard. Finally, no speculation or legal fiction can change the nature of Grattelo's veto. It was a no vote and the ratification failed to achieve a majority vote among the members of the School Board present and voting. Even if the majority is correct that 1 M.R.S.A. 71(3) (1989) establishes a "simple majority" decisional rule, the Mayor's vote causes a tie upon which no action can be predicated. Therefore, I would find no agreement and order the parties to resume bargaining upon proper request. Accordingly, no violation for failure to reduce to a signed writing is appropriate in these facts. I think the Mayor's suggestion that the School Board should refrain from approving the contracts of probationary teachers, while the matter of what the wage levels of the City's teachers would be remained unresolved, constituted sound business judgment. I would therefore find no merit in the charged violation of 26 M.R.S.A. 964(1)(A) (1988) in this regard. I agree with the majority's finding that there was no unlawful direct dealing with unit members on the part of the Mayor, and with their conclusion that this portion of the complaint should be dismissed. -35- Also, I agree with the majority's finding that the initial communication of guidelines from the School Board to its negotiating team and subsequent communications from the negotiating team back to the School Board were unclear and incomplete. Without clearly understood guidelines between the School Board and its own negotiating team, the School Board was not bargaining in good faith. I agree with the majority in their finding of a violation in this regard. As a remedy I would require a posting and order the Board to engage in any future requested negotiations in complete good faith. Dated at Augusta, Maine, this 17th day of June, 1996. MAINE LABOR RELATIONS BOARD ________________________________ Howard Reiche, Jr. Employer Representative -36- NOTICE TO EMPLOYEES _____________________________________________________________________ POSTED PURSUANT TO AN ORDER OF THE MAINE LABOR RELATIONS BOARD As a result of the filing of a prohibited practice complaint against the Biddeford Board of Education and Mayor James Grattelo, it has been determined that the Biddeford Board of Education has violated the law. In accordance with the intention of the Board of Education to comply with the Decision and Order of the Maine Labor Relations Board (MLRB) the Biddeford Board of Education hereby notifies its employees of the following: WE WILL cease and desist from unlawfully refusing to bargain in good faith with the Biddeford Teachers Association by refusing to sign and perform negotiated agreements and failing to clothe our negotiating team with sufficient authority and/or bargaining instructions. WE WILL bargain in good faith with the Biddeford Teachers Association by: 1. Immediately signing and performing retroactively our September 1, 1994, through August 31, 1997, collective bargaining agreement with the Biddeford Teachers Association. 2. Reducing any future mutually-ratified agreements to a signed writing. 3. Clothing our bargaining team with sufficient authority and/or bargaining instructions. WE WILL notify the Maine Labor Relations Board of the date of the posting of this notice and of compliance with the posting requirements contained in the MLRB's June 17, 1996 Decision and Order. Dated: ________________________ ______________________________ Biddeford Board of Education by its Chairman Mayor James Grattelo Any questions concerning this notice or compliance with its provisions may be directed to: MAINE LABOR RELATIONS BOARD 90 STATE HOUSE STATION AUGUSTA, ME 04333 (207) 287-2015 TTD (207) 287-4330 _____________________________________________________________________ THIS IS AN OFFICIAL GOVERNMENT NOTICE AND MUST NOT BE DEFACED. --------------- Note: Superior Court decisions at CV-96-314 Law Court decision at 688 A.2d 922 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 96-01 Issued: May 13, 1997 ___________________________________ ) BIDDEFORD TEACHERS ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ON ) MOTION FOR ORDER MAYOR JAMES GRATTELO and ) ON REMEDIES BIDDEFORD BOARD OF EDUCATION, ) ) Respondents. ) ___________________________________) On February 27, 1997, the Complainant, Biddeford Teachers Association (hereinafter referred to as "Association"), filed a Motion for Expedited Hearing on Motion for Order on Remedies, a Proposed Order on Motion for Expedited Hearing on Order for Remedies, and a Motion for Order on Available Remedies with Incorporated Memorandum of Law. On March 4, 1997, the executive director had a telphone conference with the parties to discuss the procedure to be followed to address the Association's Motions. On March 17, 1997, the executive director wrote a letter to the parties, outlining three possible ways the parties might be heard on the pending motion and establishing a deadline of March 27, 1997, for the Association to elect how it wished to proceed. On March 27, 1997, the Association opted to have the merits of the pending Motion for Order on Available Remedies resolved in light of the arguments contained in its February 27 filing. By agreement of the parties, the Respondents, Mayor James Grattelo and Biddeford Board of Education (hereinafter referred to together as "Employer"), filed a response to the Association's motion, on April 4, 1997. The Board members who participated in the original decision considered the documents filed by both parties and reached the following decision. The Board's jurisdiction to render this decision and order lies in 26 M.R.S.A. 968(5)(C) (1988). -1- Subsequent to our decision and order in this matter, a portion of our decision was appealed to the Superior Court and, hence, to the Supreme Judical Court. We have reviewed the decisions of the Courts, Mayor James Grattelo and Biddeford Board of Education v. Biddeford Teachers Association and Maine Labor Relations Board, No. CV-96-314 (Me. Super. Ct., York Cty., Aug. 13, 1996) and Biddeford Board of Education, et al. v. Biddeford Teachers Association, et al., 1997 ME 17, 688 A.2d 922 (Me. 1997). None of the findings of fact, reported at pages 3-18 of our June 17, 1996 decision, were challenged on appeal and they are all incorporated herein by reference. Our conclusion that the Biddeford Board of Education violated the duty to negotiate in good faith embodied in 26 M.R.S.A. 964(1)(E) and 965(1)(C) (1988) by " . . . fail[ing] to give its negotiating team sufficient instruction respecting their latitude in negotiating wage increases" was not challenged on appeal and continues to have vitality. In the circumstances, the Board will grant the Complainant's Motion for Order on Available Remedies in part by issuing an order, clarifying the remedies that we are ordering herein, in light of the Law Court's decision. We note that the bulk of the Complainant's prayer for relief is based upon factual allegations that allegedly occurred after the close of the evidentiary record in this matter, on December 13, 1995. Such allegations and the related prayer for relief are beyond the scope of this case. In the event that the Complainant wishes to litigate these matters before the Board, the proper avenue to do so is through a separate, new prohibited practice complaint. ORDER On the basis of the foregoing findings of fact and dis- cussion, 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) (1988 & Supp. 1996), it is ORDERED that the Biddeford Board of Education, its agents and representatives, shall: -2- I. Cease and desist from unlawfully refusing to bargain in good faith with the Biddeford Teachers Association by failing to clothe the Board of Education's negotiating team with sufficient authority and/or instructions to negotiate a collective bargaining agreement. II. Bargain in good faith with the Biddeford Teachers Association by clothing the Board of Education's negotiating team with sufficient authority and/or bargaining instructions. III. Take the following affirmative action that is necessary to effectuate the policies of the Municipal Public Employees Labor Relations Law: A. Sign, date and post, within 10 calendar days of the date of issuance of this decision and order, at all locations where notices to its certified personnel are customarily posted, copies of the attached "Notice." The Notice shall remain posted for a period of two weeks. B. Notify the MLRB's executive director, in writing, within 25 calendar days of the issuance of this decision and order, of the steps that have been taken to comply with this order. Issued at Augusta, Maine, this 13th day of May, 1997. MAINE LABOR RELATIONS BOARD The parties are advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. /s/_________________________ 1996), to seek review of this Kathy M. Hooke decision and order by the Alternate Chair Superior Court. To initiate such a revivew, an appealing party must file a complaint with the Superior Court within /s/_________________________ fifteen (15) days of the date Howard Reiche, Jr. of issuance of this decision Employer Representative and order, and otherwise comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. /s/_________________________ Wayne W. Whitney Alternate Employee Representative -3- -3- NOTICE TO EMPLOYEES ____________________________________________________________________ POSTED PURSUANT TO AN ORDER OF THE MAINE LABOR RELATIONS BOARD As a result of the filing of a prohibited practice complaint against the Biddeford Board of Education and Mayor James Grattelo, it has been determined that the Biddeford Board of Education has violated the law. In accordance with the intention of the Board of Education to comply with the Decision and Order of the Maine Labor Relations Board (MLRB), the Biddeford Board of Education hereby notifies its employees of the following: WE WILL cease and desist from unlawfully refusing to bargain in good faith with the Biddeford Teachers Association by failing to clothe our negotiating team with sufficient authority and/or bargaining instructions. WE WILL bargain in good faith with the Biddeford Teachers Association by clothing our bargaining team with sufficient authority and/or bargaining instructions. WE WILL notify the Maine Labor Relations Board of the date of the posting of this notice and of compliance with the posting requirements contained in the MLRB's May 13, 1997 Decision and Order. Dated: ________________________ _____________________________ Biddeford Board of Education by its Chairman Mayor James Grattelo Any questions concerning this notice or compliance with its provisions may be directed to: MAINE LABOR RELATIONS BOARD 90 STATE HOUSE STATION AUGUSTA, ME 04333 (207) 287-2015 TTD (207) 287-4330 ____________________________________________________________________ THIS IS AN OFFICIAL GOVERNMENT NOTICE AND MUST NOT BE DEFACED.