STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 96-12
Issued: February 9, 1998
______________________________
)
FRENCHMAN'S BAY TEACHERS )
ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
SCHOOL UNION NO. 96, )
)
Respondent. )
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The question presented in this prohibited practice case is
whether School Union No. 96 (hereinafter "Respondent") violated
the Municipal Public Employees Labor Relations Law ("the Act"),
26 M.R.S.A. 964(1)(E), as elaborated in section 965(1)(C), by
withdrawing a proposal on salary scale and insurance which had
been tentatively agreed to by both parties at a mediation session
in January, 1996.[fn]1
We conclude that a mutual mistake in the making of the
tentative agreement, not bad faith bargaining, caused Respondent
to take the actions it took after the January, 1996, mediation.
Accordingly, we dismiss the complaint.
This complaint was filed by the Frenchman's Bay Teachers
Association ("the Association") on December 11, 1995 (amended to
cure deficiencies on December 26, 1995).[fn]2 A prehearing conference
was conducted by Board Chair Peter T. Dawson on March 21, 1996.
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1 The complaint was amended at the prehearing conference to narrow
the scope of the charge from its original allegation that Respondent
engaged in a course of conduct since August, 1995, of withdrawing
proposals and thereafter making proposals of "lesser value and
regressive in nature." In addition, Complainant did not pursue at
hearing or in its post-hearing brief an allegation that Respondent
awarded salary experience credit to newly hired (non- bargaining unit)
teachers while refusing to grant step increases to returning teachers.
This portion of the complaint is deemed withdrawn.
2 A counterclaim filed by Respondent was subsequently withdrawn.
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The Prehearing Conference Memorandum and Order issued on April 5,
1996, is incorporated herein and made a part of this Decision and
Order.
An evidentiary hearing was conducted on October 16, 1996, by
Chair Dawson, Alternate Employee Representative Carol Gilmore,
and Alternate Employer Representative Edwin S. Hamm. The Asso-
ciation was represented by Marc Sevigny, a UniServ Director for
the Maine Education Association; School Union No. 96 was
represented by Harry Pringle, Esq. The parties were provided
full opportunity to examine and cross-examine witnesses,
introduce documentary evidence and make argument. Upon request
of the Association both parties filed post-hearing briefs, in
lieu of closing arguments at hearing, which have been considered
by the Board.
JURISDICTION
The jurisdiction of the Board to hear this case and to issue
a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988).
Neither party has raised an objection to the Board's jurisdiction.
FINDINGS OF FACT
Upon review of the entire record the Maine Labor Relations
Board finds the following facts:
1. Frenchman's Bay Teachers Association is the "bargaining
agent," and School Union No. 96 is the "public employer," as
these terms are defined in 26 M.R.S.A. 962(2) and (7),
respectively, for a bargaining unit consisting of teachers
employed in Flanders Bay Community School District, Schoodic
Community School District, and the following school units:
Steuben, Gouldsboro, Winter Harbor.
2. In April, 1995, the Association notified Respondent of
its intent to negotiate a successor contract to the one which
would expire in August, 1995. Negotiations began in May, 1995,
with an agreement on what were described as "fairly standard"
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ground rules. The parties adhered to their ground rules
throughout the course of these negotiations.
3. The parties worked cooperatively through September,
1995, in reaching numerous tentative agreements which were
recorded by the Association and signed by both parties.
4. Respondent's chief negotiator was Elizabeth Fickett,
chair of the School Board. Ms. Fickett entered into tentative
agreements with the Association but did not take them to the full
School Board for consideration during the period of negotiations.
Ms. Fickett's rationale for not taking tentative agreements to the
full Board as they were reached was that she could not bring an
"unfinished contract to the board for ratification not knowing
what the other issues were that may or may not have been worked
out at the end."
5. In the words of the Association's president and chief
negotiator, Abe Knowlton, negotiations proceeded "quite well"
until around September, 1995, when the parties focused exclusively
on the subject of salaries. According to Jay Bricker, the
Association's vice president and active member of the negotiating
team: "[w]e had a wonderful time negotiating with Miss Fickett,
and everything went very smoothly until we hit salaries."
Salary negotiations became stalled after three or four sessions.
6. One of the sticking points was whether to incorporate
into the salary scale the "one-time only 'longevity benefit' of
$300" which had been agreed to in the 1994-1995 package for
teachers who were at the top of the scale in 1993-1994. The
Association's position was that the longevity benefit should be
rolled into the existing scale as an additional step at the top,
because failure to do so would result in a loss of pay for some
teachers. Respondent was adamant about not incorporating the
longevity benefit into the existing wage scale as it was meant to
be a one-time only benefit when it was agreed to the previous
year.
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7. On September 28, 1995, the Association requested the
services of a mediator and indicated that the following issues
were in dispute: recognition clause, teaching hours and teaching
load, teacher employment, salaries and stipends, insurance and
duration clause. The parties participated in three mediation
sessions over the course of the next several months.
8. In order to cost-out the union's salary proposal for a
presentation at mediation in January, 1996, Mr. Bricker sent a
list of teachers and what he understood to be their respective
salaries to the superintendent's assistant with a request that
she check the figures for accuracy. When the list was returned
to him, certain salaries were crossed out and a higher amount
written in by the superintendent's assistant. In comparing the
figures, Mr. Bricker realized that the "one-time only 'longevity
benefit' of $300" which was to have ended upon expiration of the
previous contract in August, 1995, was still being paid.
Mr. Bricker was, in his words, "shocked, frankly, to find out
that it was still being paid. [The union] thought that [the
administration] had cut it off."
9. School Board members believed, as did the union's
negotiating team prior to receiving this information, that the
longevity benefit had expired in August, 1995. The union's
negotiating team did not speak directly to any of the School
Board's negotiators about the information it had received from
the superintendent's assistant. Instead, they made it "very
explicitly clear to the mediator," who was shuttling proposals
back and forth between the parties on the night of January 24,
1996, that the higher amount was still being paid and that
continued payment of this money would effectively match the
union's salary proposal. The Association crafted language for a
tentative agreement (see bold sections of the tentative agreement
below) "to ensure that it would continue," and the mediator left
the room with this language in hand. Mr. Bricker states that the
union thought the "proper way to handle it [was] to discuss it
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with the mediator and [they] assumed that he had talked with the
board about it."
10. The tentative agreement drafted by the Association reads
as follows:
'95-'96 - The pay schedule for the 95-96 school year
will remain the same. The Blue Cross/Blue Shield
contribution will be $5000. Those teachers who are due
to advance a step will do so. There will be no change
in the pay schedule currently being paid, except that
those who have a step coming shall receive it in a lump
sum to the date of the contract signing, and the
balance will be paid over the remainder of the year,
excepting teachers who are employed at Mountainview,
who will receive the entire step on or about July 1.
'96-'97 - The Blue Cross/Blue Shield increment will
increase by $300. There will be a 1 1/2% increase on
the base, which will be translated throughout the pay
schedule.
Third Year Proposal: - Board negotiators will submit
the following proposal to the Board for year three:
The Blue Cross/Blue Shield increment will increase by
$300. There will be a 1 1/2% increase on the base,
which will be translated throughout the pay schedule.
11. Members of the School Board's negotiating team were not
informed of the unexpected continuation of the one-time only
longevity benefit at the January 24, 1996, mediation session.
Ms. Fickett states: "The pay schedule that I thought that we
were agreeing to was the last pay schedule that the board had
adopted which was 17 steps and it was topping off at $30,800.
It did not include the $300 longevity." The parties did not
discuss actual salary amounts; the discussion centered upon the
general language of pay schedules remaining the same.
12. Ms. Fickett and Mr. Bricker signed the tentative
agreement on salary and insurance at the close of the mediation
session on January 24, 1996. While not clear from the record, it
was Mr. Bricker's understanding that these were the only
remaining issues to be resolved and, therefore, this tentative
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agreement "settled every issue that was left." On the other
hand, Ms. Fickett believed that some issues remained on the table
at this point.
13. Ms. Fickett reviewed the tentative agreement once she
returned home that evening and "some flags went off in [her] head
. . . about the words 'Blue Cross-Blue Shield' because it didn't
specify 'or comparable [coverage]'."[fn]3 There had been no specific
discussion about the insurance language at the January 24
mediation session. Ms. Fickett telephoned Mr. Knowlton (who had
not been able to attend the last mediation session due to
illness) a day or so later to discuss "that he had missed the
good outcome of this, and, oh, by the way, it says this
[regarding insurance] and we weren't giving that up."
14. During this telephone conversation Ms. Fickett first
learned that the one-time only longevity benefit was paid beyond
August, 1995, and that the parties "were thinking about two com-
pletely different pay schedules." Ms. Fickett told Mr. Knowlton
that it was her understanding that "the pay schedule currently
being paid" (the language in the tentative agreement) did not
include the previous $300 longevity benefit since it had been a
one-time-only bonus. Mr. Knowlton responded that it was his
understanding that it did.
15. During this telephone discussion Ms. Fickett also raised
her concerns about the insurance language. Mr. Knowlton responded
that the language was purposefully drafted by the Association so
as to restrict the School Board's ability to change insurance
companies. He reminded Ms. Fickett that at one of the first
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3 The prior contract referred to "Blue Cross-Blue Shield or
comparable coverage." The Association and the School Board understood
this language to permit the School Board to search for an insurance
carrier other than Blue Cross/Blue Shield and they had, in fact, been
engaged in this search. During these negotiations, the School Board
intended to retain what it believed to be its prerogative to switch
insurance companies, and Ms. Fickett was concerned that the language
in the tentative agreement may be intended or construed to limit this
prerogative.
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negotiation sessions the Association had expressed its interest in
retaining Blue Cross/Blue Shield as the carrier, and that the
School Board's team had represented to them that they were not
looking to change carriers. The parties never specifically
discussed a change in the Board's ability to switch insurance
carriers.
16. Mr. Knowlton realized during this conversation with
Ms. Fickett that the tentative agreement had broken down.
Mr. Bricker testified that he could not recall the exact reason
given by the School Board's negotiating team for reneging on the
tentative agreement, but he "knew there was--that the board would
not support any proposal that gave $300 to those 15 teachers at
the top of the bachelor's scale and that that was a big problem,
and so at that time we decided to go to fact finding."
17. Ms. Fickett did not present the January 24 tentative
agreement to the full Board for two reasons: (i) she did not take
any tentative agreements to the Board piecemeal because of the
uncertainty of the remaining unresolved issues, and (ii) she
realized the misunderstanding between the parties within a day of
signing the agreement, so she would not have taken it to the
Board as it was in any event.
18. Once the Board realized that the longevity benefit was
erroneously being paid it was discontinued. By letter dated
February 7, 1996, Ms. Fickett informed teachers that the extra
payment would stop with their next paycheck. The letter reads,
in part:
As I am sure you are all aware, the joy that was felt
upon reaching a two year tentative agreement on
teachers' salaries soon turned to dismay as we realized
a grave misunderstanding had occurred regarding the
salary schedule to which each party thought it was
agreeing. . . . The Union 96 Board, however, being
unaware of the payroll error, never having voted to
continue payment of this one-time only bonus for
another year . . . does not support the continued
payment over time of the $300 which was erroneously
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begun again this year by the Central Office. . . .
[T]he Board is not asking for reimbursement of the
portion of that money already paid out, but has
directed Central Office staff to discontinue further
payments towards the $300 immediately.
. . . I simply wanted to make sure all of you
understood the reasoning behind the Board's directive
to the Central Office staff, and I wanted to make sure
you heard it from me. I have been at that negotiating
table with your team since the beginning, and believe
that we have all done our best to conduct these
sessions civilly, humanely, and even with a little bit
of humor now and then. We have made a lot of forward
strides toward reaching a completed agreement, and I
hope that we will continue in the same vein until we
have finished our work.
DISCUSSION
The issue before us is whether School Union No. 96 violated
the duty to bargain in good faith when its chief negotiator,
Ms. Elizabeth Fickett, reneged on a tentative agreement
concerning salary and insurance prior to presenting it to the
full School Board for a ratification vote. We conclude that
Ms. Fickett's decision to withhold the tentative agreement was
not made in bad faith, but was the result of a misunderstanding
between the parties as to the meaning of the salary language in
the tentative agreement. In effect, there was no agreement
reached on salary in the first place; thus, there was nothing to
take to the full School Board for its consideration.
We note at the outset that, without question, these
negotiations went smoothly prior to the sessions which addressed
salary. The Association's negotiators testified to Ms. Fickett's
good faith bargaining and she, in turn, said as much about them
in her letter addressed to teachers in February, 1996. There is
also no dispute that the parties held uncompromising positions on
the issue of incorporating the previous longevity benefit into
the existing salary scale when this issue was discussed face-to-
face, prior to the January, 1996, mediation.
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Contrary to the Association's belief that the language they
drafted for the tentative salary agreement would ensure continu-
ation of the benefit, this language is ambiguous. It could be
argued that this income was never a part of the "pay schedule
currently being paid."[fn]4
Ms. Fickett did not understand that the "pay schedule
currently being paid" wording of the agreement would lock the
School Board into incorporating the benefit into the pay
schedule. First of all, Ms. Fickett did not discuss the
longevity benefit (either face-to-face or with the mediator) on
the night the tentative agreement was signed. In light of the
earlier uncompromising positions on this issue, it is beyond
belief that Ms. Fickett would have agreed to incorporate this
"one-time-only" benefit into the pay scale without specifically
discussing this concession with the mediator or the Association's
negotiators.
In addition, Ms. Fickett did not realize when she signed
the agreement that the benefit was still being paid. Although
the Association shared with the mediator the "shocking" news of
the unexpected continuation of the bonus, there is no evidence
that the mediator shared this information with the School Board's
negotiators. The Association mistakenly assumed otherwise.
The School Board's decision to discontinue payment of the "one-
time-only" benefit shortly after the telephone call between
Ms. Fickett and Mr. Knowlton supports our conclusion that it had
no previous knowledge of the continuation of the benefit and no
intention of including that money in the "pay schedule currently
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4 The longevity benefit was paid "in return for capping the BA scale
at $30,800, to those teachers who were already at the top of the scale
in 93-94" (emphasis added). This language supports a conclusion that
the longevity benefit was completely separate from, and outside of,
the agreed-upon pay schedule.
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being paid."[fn]5
It is abundantly clear from the record that the ambiguous
language of the tentative agreement, as to salary, meant one
thing to the School Board's negotiator and another thing entirely
to the Association's negotiator and, if ratified, would have
resulted in the School Board's unwittingly conceding a contentious
issue. Put another way, if Ms. Fickett knew that the ambiguous
language drafted by the Association's negotiator was intended to
incorporate the previously agreed-upon "one-time-only" benefit,
she never would have signed the tentative agreement. This mutual
misunderstanding in the face of ambiguous language prevented a
"meeting of the minds" and, thus, there was no agreement as to
salary. A. Corbin, CORBIN ON CONTRACTS 104 (1952).
The same cannot be said about the language related to
insurance. Unquestionably, the School Board never intended to
relinquish what both parties believed to be its prerogative under
the former contract, that is, to switch from Blue Cross/Blue
Shield to another insurance carrier. On the other hand, the
Association definitely intended this result when it drafted the
insurance language, and the language is clear and unambiguous.
Ms. Fickett's signing of an agreement which clearly limits
insurance coverage to that provided by Blue Cross/Blue Shield was
a mistake which she soon realized on closer review of the
agreement.
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5 The fact that the superintendent's assistant had knowledge of the
discrepancy between her figures and the Association's figures does not
necessarily warrant a finding that the School Board had actual or
constructive knowledge of the continuation of the benefit, or that it
had somehow acquiesced in incorporating this benefit into the pay
schedule as Mr. Bricker seemed to contend at hearing. In addition,
there is no evidence that the Association filed a grievance or took
any other action to protest the discontinuance of the benefit. See
Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-810
(Me. 1982) (unilateral change in the terms of employment after the
expiration of a contract is an unfair labor practice). See also Board
of Trustees of the University of Maine System v. Associated COLT Staff
of the University of Maine System, 659 A.2d 842, 844 (Me. 1995). It
is fair to infer that the Association itself recognized the ambiguity
of this language by this point in time.
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We have held that when a misunderstanding as to the meaning
of an agreement is "due to the fault of one party," in that the
wording of the agreement is unambiguous, that party is bound by
the agreement even though there was no meeting of the minds. Fox
Island Teachers Association v. M.S.A.D. No. 8 Board of Directors,
No. 81-28, slip op. at 6, 4 NPER 20-12020 (Apr. 22, 1981). To
hold otherwise would defeat the purpose of tentative agreements
in narrowing the differences between the negotiating parties.
In this case, Ms. Fickett's unilateral mistake did not void the
tentative agreement as to insurance or relieve Ms. Fickett from
the obligation to present this portion of the tentative agreement
to the full School Board for its consideration at the appropriate
time. Had this been the final tentative agreement reached,
Ms. Fickett would have been obligated to present the complete
package to the full School Board without any obligation on the
part of the Association to further negotiate. Fox Island, slip
op. at 6.
We see no merit, however, in the Association's post-hearing
argument that Ms. Fickett refused to submit a final tentative
agreement to the full Board for ratification. We have held that
a failure to submit a final tentative agreement to principals for
ratification for an unreasonable length of time is evidence of
bad faith in that it frustrates the bargaining process and shows
a lack of intent to reach final, binding agreement. Teamsters
Local Union No. 48 v. City of Westbrook, No. 89-05, slip op. at
10-11, 11 NPER ME-20001 (Oct. 25, 1988). In this case, there was
no final agreement (there was no agreement on salary and there
may have been other unresolved issues) and, in any event,
Ms. Fickett acted immediately on her concerns.
The Association does not contend, nor is there any
evidentiary basis for concluding, that Ms. Fickett knowingly
entered into these tentative agreements with the intention of
reneging on them in order to unnecessarily prolong these
negotiations. Nor is it alleged that Ms. Fickett violated the
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parties' ground rules by failing to submit individual tentative
agreements as they were reached to the full School Board for
ratification. The ground rules were not admitted into evidence;
however, they were described as "fairly standard" and there was
testimony that both parties adhered to the ground rules
throughout the course of these negotiations. We, nevertheless,
wish to add a note of caution to the Respondent consistent with
that to the employer in Kittery Employees Association v. Eric
Strahl and the Town of Kittery, No. 86-23, slip op. at 13, 9 NPER
ME-18010 (Jan. 27, 1987). That is, if a negotiator fails to keep
his or her principal party informed of the progress of the
negotiations, especially concerning the concessions made by both
parties, final ratification of the entire package may be
difficult, if not impossible, to achieve. Should the principal
party unreasonably reject substantial elements of the tentative
agreements, we may well conclude that the negotiator (in this
case, Ms. Fickett) was not clothed with sufficient knowledge or
authority to reach final tentative agreement and find a failure
to bargain in good faith.
All of the evidence presented persuades us that these
parties lacked a meeting of the minds when they signed the
tentative agreement on January 24, 1996, and that, therefore,
there was no final tentative agreement to present to the School
Board for ratification. See Sanford Firefighters Association,
Inc. v. Selectmen and Town Administrator of the Town of Sanford,
No. 83-07, 5 NPER 20-14009 (Dec. 3, 1982). In the circumstances,
Ms. Fickett's conduct did not violate the duty to bargain in good
faith and we dismiss the Association's complaint.
ORDER
On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the powers granted to
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
968(5) (1988 & Supp. 1997), it is hereby ORDERED that the
complaint filed by the Frenchman's Bay Teachers Association on
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December 11, 1995, against School Union No. 96 be, and hereby is,
DISMISSED.
Dated at Augusta, Maine, this 9th day of February, 1998.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right, pursuant to 26 /s/_________________________
M.R.S.A. 968(5)(F) (Supp. Peter T. Dawson
1997), to seek review of this Chair
decision and order by the
Superior Court. To initiate
such a review, an appealing
party must file a complaint /s/_________________________
with the Superior Court within Carol Gilmore
fifteen (15) days of the date Alternate Employee
of issuance of this decision Representative
and order, and otherwise
comply with the requirements
of Rule 80C of the Maine Rules
of Civil Procedure. /s/_________________________
Edwin S. Hamm
Alternate Employer
Representative
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