STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 96-24
Issued: August 25, 1997
_________________________________
)
JEFFERSON TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
JEFFERSON SCHOOL COMMITTEE, )
)
Respondent. )
_________________________________)
The Jefferson Teachers Association (hereinafter "the
Association") filed a prohibited practice complaint alleging that
Superintendent Bruce Young and the Jefferson School Committee
("the Committee") violated 26 M.R.S.A. 964(1)(A), as elaborated
in Section 963, and Section 964(1)(E), as elaborated in Section
965(1)(C) and (E),[fn]1 by: engaging in surface bargaining,
submitting a series of regressive proposals, failing to
participate in good faith in impasse resolution procedures, and
withdrawing a proposal to continue a step increase system once it
was informed that the Association intended to request
arbitration.[fn]2
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1 The Municipal Public Employees Labor Relations Law ("the Act"),
Section 964(1)(A), prohibits public employers from interfering with,
restraining or coercing employees in the exercise of their rights under
Section 963. Section 963 sets forth the right of employees to participate in
union activities. Section 964(1)(E) prohibits public employers from refusing
to bargain collectively with the bargaining agent, and Section 965(1) defines
"collective bargaining" to mean the mutual obligation to: (C) confer and
negotiate in good faith with respect to, among other matters, wages; and, (E)
participate in good faith in the mediation, fact-finding and arbitration
procedures required by the Act.
2 The Association filed a motion to amend the complaint which was heard
prior to the start of the evidentiary hearing. The amendment alleges that the
Committee had recently refused to bargain over wages paid to teachers for
summer curriculum development. At the hearing the Association clarified its
pleading as an offer of evidence "not for adjudication but to show an ongoing
contempt for the process of collective bargaining." We did not construe the
motion as a request to charge a separate prohibited practice and granted the
request to admit this evidence, over the Committee's objection, to the extent
it is relevant to the original charge.
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The Committee denies the Association's charge and contends
that each of its contract proposals was increasingly favorable to
the Association monetarily; there was movement on non-monetary
issues; the parties reached tentative agreement on a number of
issues; and it engaged in all of the impasse resolution
procedures in good faith. The Committee's answer included a
motion to stay Board proceedings until the conclusion of interest
arbitration pending at that time.
A prehearing conference was conducted by Chair Peter T.
Dawson on May 30, 1996. The Prehearing Conference Memorandum and
Order issued on June 3, 1996, is incorporated herein and made a
part of this Decision and Order.[fn]3
An evidentiary hearing was conducted on July 26 and
August 1, 1996, by Alternate Chair Pamela D. Chute, Employee
Representative Gwendolyn Gatcomb, and Employer Representative
Howard Reiche, Jr. The Complainant was represented by Mr. Dan
Toomey, Staff Representative with the American Federation of
Teachers/Northern New England Council ("AFT/NNECII). The
Respondent was represented by Ervin D. Snyder, Esq. The parties
were given full opportunity to examine and cross-examine
witnesses, introduce documentary evidence and make argument.
After the close of the hearing, the Committee filed a motion
to reopen the record to take evidence concerning the eventual
outcome of arbitration. The Committee contends that the fact
that the parties have executed a collective bargaining agreement
moots this prohibited practice charge.
We disagree and hereby deny the Committee's motion. We have
reviewed our longstanding precedent in this regard and reaffirm
that, absent unusual circumstances not present here, the
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3 The Committee's request for a stay of Board proceedings pending
completion of arbitration was modified at the preheating conference to request
a 21-day continuance of the Board's hearing. After due consideration of the
arguments the request for a continuance was denied. The Committee renewed its
request at the evidentiary hearing and it was again denied.
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conclusion of a collective bargaining agreement does not vitiate
charges of bad faith in negotiations which precede the signing of
the agreement. See e.g., Teamsters Local No. 340 v. City of
Biddeford, No. 93-25, slip op. at 12 (Me.L.R.B. June 3, 1993);
Oxford Hills Teachers Association v. M.S.A.D. No. 17, No. 88-13,
slip op. at 6, 12 NPER ME-21000 (Me.L.R.B. June 16, 1989). We
will take notice of the existence of any such contract, however,
to the extent it is relevant to remedies in an appropriate case.
The Association also filed a posthearing motion to reopen
the record to take additional evidence concerning the summer
curriculum development program (see footnote 2 above). We deny
the Association's motion to reopen this record; the proposed
evidence, if admitted, would not affect the outcome of our
decision.
The parties were afforded the opportunity to file post-
hearing briefs. Both parties filed main briefs on September 24,
1996, and reply briefs on October 9, 1996.
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. The Jefferson Teachers Association is a "bargaining
agent" and the Jefferson School Committee is a "public employer,"
as these terms are defined in 26 M.R.S.A. 962(2) and (7),
respectively, of a bargaining unit comprised of classroom
teachers.
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2. At the time of the filing of this prohibited practice
complaint, a collective bargaining agreement between the
Association and the Committee, which had been in effect for three
years, had expired.[fn]4
3. In December 1993, the Committee asked the Association
to attend a Committee meeting to discuss the negotiations process
for a successor agreement. The parties met in March 1994 for
this purpose.
4. At the March 1994 meeting, the parties reached
preliminary agreement on ground rules and also agreed to begin
the negotiation process in a "win-win" format, without the
presence of the superintendent or the Association's AFT/NNEC
representative. The parties met three (3) times in this fashion,
on May 3, May 10 and June 13, 1994. No tentative agreements were
reached in these sessions.
5. Members of the Association's original negotiating team
were Babette Blood White, President, and Rose Marie Roy Angell.[fn]5
Members of the Committee's negotiating team were Robert Flagg and
Roger White, members of the School Committee.[fn]6
6. During one of the "win-win" sessions, a Committee
representative commented that unions were unnecessary, hurt more
than help in the process of negotiations, and sometimes made it
hard to be fair to everybody.
7. At the May 10, 1994, session the parties formally
agreed to ground rules which provided, among other things, that:
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4 The collective bargaining agreement was effective September 1, 1991,
through August 31, 1994, and the complaint was filed on March 18, 1996.
5 Nancy Cooper and Deborah Mansfield joined the negotiating team by the
fall of 1995.
6 Mr. Flagg was a committee member until March 1996, at which time he was
hired to continue representing the Committee in negotiations. Mr. White was
later replaced in negotiations by Ms. Page Keeley and Ms. Sandra Limouze,
members of the Committee.
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[E]ach party shall submit its complete proposal in one
package at the same meeting. No additional proposals
may be added by either party after their initial
proposal is presented. The committee shall review its
proposal at the first meeting and the association shall
review its proposal at the second meeting.
8. The parties exchanged initial proposals on either May 3
or May 10, 1994. The Association's first proposal was for a two-
year contract with a 4 percent wage increase in the first year, a
5 percent wage increase in the second year, and the addition of
two salary tracks (bachelor's degree +30 credits and master's
degree +15 credits). There was no proposed change to the
existing step increase structure. The Association's insurance
proposal was to add a dental plan to existing coverage which
required the employer to pay 100 percent of the premium for
single coverage and 90 percent of the premium for family
coverage. The Association also proposed: adding categories of
extracurricular activities eligible for stipends; increasing sick
leave; and reducing the work year to 180 days.
9. The Committee's initial proposal was for a one-year
contract with no increase in wages. The Committee proposed a
change in the existing step increase structure. The proposal
created a new first step and "redlined" each remaining step by
adjusting the balance of the scale downward by one step.[fn]7
The Committee's insurance proposal was to reduce its
contribution for family coverage from 90 percent to 85 percent.
The Committee also proposed to: eliminate longevity and
extracurricular activity stipends; reduce sick leave; and,
maintain the work year at 183 days.
10. At the third "win-win" session on June 13, 1994,
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7 For example, under the expired contract, a teacher with a bachelor's
degree and no experience earned $19,275 during the 1993-94 school year and a
teacher with one year of experience earned $20,075. The Committee proposed to
pay B.S. level teachers with 0-1 year of experience $19,275, and teachers
would not earn $20,075 until they had two years of experience.
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Mr. Flagg proposed an item concerning an extended work day (the
so-called "Bob Plan") which had not been included in the
Committee's initial proposal.
11. The parties' first conventional negotiation session was
held on June 29, 1994, with Superintendent Bruce Young and AFT
Staff Representative Dan Toomey in attendance. The session began
with a request by the Association for the Committee to present a
new proposal. Mr. Flagg stated that a new proposal from the
Committee was contingent on the Association's acceptance "in some
part" of his "Bob Plan." Pursuant to the ground rule prohibiting
additional proposals after the initial one, the Association
refused to consider the proposed "Bob Plan."
12. The parties held negotiation sessions on August 8,
August 31, and September 8, 1994. The Association did not drop
any of their initial proposals and some of their proposals were
tentatively agreed to by the Committee.
13. The Association presented its second proposal which
included the tentative agreements reached by that point on
September 19, 1994. The duration of the proposed contract is not
clear from the record. The wage and insurance proposals read:
Salary plus Medical Insurance total to increase by 5.2%
3.5% raise plus step increase plus the addition of two
proposed salary tracks.
The Association dropped its proposals to add dental coverage
and increase sick leave, it proposed current contract language
related to longevity stipends, and it retained its proposals to
expand eligibility for extracurricular activity stipends and
shorten the work year.
14. Notes taken of the September 19th session by Ms. Linda
Cormier, business manager for the district, read as follows:
Discussion was held on the issue of step and raise[.]
[T]he Association requested that the School Committee
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allow the Association to disperse the budget money for
salary and health along with a percentage for a raise.
The School Committee did not feel this concept was
viable and there would be no opportunity for School
Committee input.
The Association requested to swap proposals. The
School Committee proposed a 2.1% increase on base for
the 93-94 salary scale and 85% of health insurance
coverage over cost of single.
15. The Committee presented its second written proposal at
a negotiation session held on October 11, 1994. The duration of
the proposed contract was two years. The Committee's wage
proposal provided a 2.5 percent increase on the base for the
first year of the contract and a 2.1 percent increase for the
second year.
The Committee's insurance proposal was an employer
contribution of 85 percent of coverage over cost of single in the
first year, and 80 percent in the second year. In addition, the
Committee changed its proposal regarding longevity stipends from
eliminating them altogether to grandfathering in those persons
presently entitled to them; it increased its course reimbursement
proposal from a maximum of $900 to payment for up to twelve
college credits (each credit costs approximately $140); it
proposed continuing activity stipends and adding stipends for
team leaders and committee chairs, with some modification
permitting cancellation of an activity at the discretion of the
Committee; it maintained its proposal to reduce sick leave and
proposed one less personal leave day in exchange for the 180-day
work year proposed by the Association.
16. The Association caucused to review the Committee's
second package proposal and determined that the proposal was not
one their membership would accept. Mr. Toomey testified that,
although the wage offer was more favorable to members, there were
too many concessions in other areas.
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17. At the close of the October 11th session, Mr. Toomey
asked Mr. Flagg, "what's the sense of going to mediation, might
as well go to fact-finding." Mr. Flagg agreed with Mr. Toomey,
and Mr. Toomey was to make arrangements for a joint request to
skip mediation.
18. On October 12, 1994, Superintendent Young advised
Committee members against skipping mediation and, without
contacting Mr. Toomey, contacted the Maine Labor Relations Board
to request mediation. Superintendent Young states he did not
agree with the decision to skip mediation because it seemed to
him "that we would have a problem there in going directly to
fact-finding . . . so I suggested that we not mutually agree to
go directly to fact finding but to do, try mediation first."
19. Due to scheduling problems, the first mediation session
could not be held until December 7, 1994. At mediation, the
parties presented their respective positions concerning wages and
insurance, longevity pay, extracurricular activity stipends,
course reimbursement and sick leave. The mediation session
lasted about six hours and a second meeting was scheduled for
January 31, 1995.
20. Prior to the conduct of the second mediation session
the mediator forwarded a health benefits proposal to the parties.
The mediator suggested an additional mediation session would not
be fruitful if the parties could not agree to one of the possible
solutions contained in this proposal. The parties discussed the
mediator's proposal and did not reach agreement. The superin-
tendent made arrangements for assignment of a fact-finding panel.
21. Mr. Toomey testified that, prior to the fact-finding
hearing, the superintendent said, "If you think fact-finding
costs a lot, wait till you go to arbitration." Mr. Toomey's
testimony continues:
And he didn't say that in a hostile way. He said that
in -- I was kind of ticked off and he was, you know,
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being, I don't know, soothing me. I was mad. And he
says that the chairman of the school board was aware -
that's the first I heard of the Mountain Valley
decision, although he didn't name the Mountain Valley
decision name, he made me aware that they were aware
that if they went to interest arbitration that they
could impose their last best offer. That was the first
I heard of that. And so in any case I looked into it
afterwards and found out that was the case. But my
point is that he made me aware that they fully intended
to go to interest arbitration and impose their salary
proposal upon us.
22. Superintendent Young denies that the school board ever
discussed deliberately carrying negotiations through to final
impasse in order to implement its "last, best offer." He states
that, if this was the "goal" of the school board, he was not
aware of it. Concerning the statement attributed to him related
to the cost of arbitration, Superintendent Young testified:
I may have made that statement, but taken out of
context it sounds a lot different than I probably would
have said it. . . . I really don't recall saying
that, and if I did, which I probably did, it was in the
terms of, you know, this is expensive but the whole
process is expensive; it's going to be expensive unless
we can get this contract settled.
23. A fact-finding hearing was conducted on March 30, 1995.
The fact-finding panel recommended the parties attempt to resolve
certain issues which seemed to be close to resolution at that
time. Toward this end, the parties met on April 6, 1995, and
were able to reach agreement on two of these issues.
24. The fact-finding report was issued on April 29, 1995.
The panel's discussion concerning salary scale reads, in part, as
follows:
While the addition of 2 additional tracks . . . was
mentioned not enough information was presented for the
Panel's consideration to determine the justification
for the additions or what the salary steps would be.
The matter is left to the parties for further
discussion, if any.
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The Committee proposal of 2.1% computes to an increase
of $405 to the B.S. base. This amount is added to all
the higher experiences in the scale. This had been an
accepted, although not an exclusive, methodology in the
educational field. However, when the $405 is added to
the steps the percent of increase becomes less than
3.35% at the higher experience levels. In fact the
increase does not keep up with the CPI rate of
increase. Taking into consideration all other
financial matters that impact teachers net pay it
represents a reduction. Actually the proposed increase
regresses at each level of the scale following the base
level. Should this practice continue most teachers
would experience salary erosion.
Where there are so many teachers in the Jefferson
School system who have had many years of experience in
the Jefferson system, the Panel determined that their
experience should be recognized and not penalized. The
Panel Recommendation . . . utilizes a true 3% increase
in each step in each year of a 3 year agreement.
25. The panel's discussion concerning health insurance
reads, in part:
The Panel recommends Plan III MSMA State Mutual be
retained. Commencing in the first year (1994-95) the
School Department pay 100% of the premium for single
coverage and 80% of the difference in the premium for
two person or full family coverage (teacher contribu-
tion 20% of the difference) and remain at this level of
contribution for the duration of the contract.
The Panel is mindful of the strong trend toward
increasing employee cost sharing for health insurance
both in the public and private sectors of employment.
The Panel is also mindful that the Committee proposal
is for only a 15% teacher contribution in the first
year with a 20% contribution coming in at the second
year. Where we have recommended an increase in salary
in excess of that proposed by the Committee we feel
that the lump sum received for back salary will exceed,
even at a 20% teacher contribution, the retroactive pay
back from the teachers.
In the event the parties agree on a three year
agreement the third year shall remain at the same rate
as the second year.
Under our salary proposal the retroactive amount each
teacher will receive exceeds by far the amount that
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each teacher would have to reimburse the School
Department for the retroactive insurance premium
return.
26. The Association membership voted to accept the
recommendations of the fact-finding panel in their entirety.
27. By letter dated June 16, 1995, the superintendent
informed the Association that the Committee had considered the
fact-finding report and its position at that time was "favorable
on all aspects of the report except the salary recommendation."
The superintendent wrote:
If that matter could be settled, I believe the rest of
the areas of disagreement could be resolved. The
Committee negotiators made it clear that their salary
proposal was not changed from the one made prior to
going to fact-finding. The Committee as a whole
affirms this position.
28. The teachers met with the Committee's negotiating team
once or twice during the summer months. The parties next met on
September 14, 1995. Mr. Toomey went through the fact-finding
report item by item and, contrary to the representations of the
superintendent, Mr. Flagg responded that the Committee could not
approve any of the items set forth in the report. The Committee
thereby rejected the Association's proposal to settle the
contract by adopting the fact-finding report in its entirety.
29. The Association's negotiating committee met with
Association members on November 28, 1995, to convey "the
situation and the Board's position as [they understood] it." At
a negotiation session on that same date Ms. Angell read a written
statement to the Committee's team, requesting that it reconsider
its position and "come back with a counterproposal which
considers at least the spirit of the factfinder's [sic] report."
Mr. Flagg responded that it was the Committee's intention to
stand by its last best offer and that the Association must keep
in mind that "money matters are not binding. If we don't have
it, you can't get it."
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30. On December 14, 1995, the Committee presented its third
written proposal to the Association. This proposal was for a
three-year contract and, as to salary, was as follows:
1994-1995 - remain as 1993-1994 salary scale
1995-1996 - remain as 1993-1994 salary scale with additional
one time stipend of $750.00 for each person at
the top of the scale who received no [step]
increase in this contract year.
1996-1997 - approx. 3% increase on the base; addition of
step 14 to BS+ and MS; step 17 would be
increased to reflect the additional step.
31. The Committee's health insurance proposal was as
follows:
1994-1995 - remain as 1993-1994
1995-1996 - remain as 1993- 1994
1996-1997 - enrollees will assume 15% of additional
coverage costs
32. The Committee's proposal included the longevity stipend
through the 1995-1996 school year, at which time the stipend
would be eliminated and an additional step added near the top of
the scale.[fn]8 The proposal included activity stipends; ten (10)
sick days a year combined with an incentive system by which
additional days could be added to the accumulative total so as to
accumulate quicker; bereavement and personal leave apart from
accumulated sick leave; and a 183-day work year.
33. As noted above, the Committee's proposals differed in
contract duration. The first proposal was for a one-year
contract, the second proposal was for a two-year contract, and
the third proposal was for a three-year contract. This tended to
confuse the parties' presentations to the Board of the
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8 The effect of the proposed added step would have been an increase in
wages paid to employees at the newly-created step 14 and at step 17.
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differences among the proposals.[fn]9
34. Mr. Toomey's questioning of Ms. Cormier indicated
apparent confusion regarding the Committee's first proposal[fn]10
and, similarly, his cross-examination of her ended abruptly:
Q. The final proposal, you testified that you thought
that was a fair proposal and that people were better
off with that proposal than they were with the second
proposal.
A. I never testified to that.
Q. I thought that you said that when [Committee's
attorney] said to you that each one of the proposals
was worth more.
A. That's correct.
Q. Okay. Okay. In the 193-194 contract, oh, let's
take a name--
MR. TOOMEY: No further questions. I'm
beginning to paperwork overload and I don't want to
look at numbers anymore.
At this point in the hearing, the Board members attempted to
elicit further clarification from Ms. Cormier.
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9 For example, the figures offered by Ms. Cormier (see #35) were said to
represent "a comparison of year two to year two with just two years because I
couldn't throw in two years and three years." This could not possibly be the
case since the committee's third proposal had no increase in salaries in "year
two", although steps had been paid by that time. Similarly, charts prepared
by Mr. Toomey (see #37) compare the first two years of the three-year proposal
with both years of the two-year proposal. The third year of the third
proposal is compared to the second year of the second proposal. In response
to a line of questioning by Board Member Reiche, Mr. Toomey stated: "Well,
you know, that's why, I mean I have been on spread sheets till it's coming out
my ears and that's, I mean, I know this stuff is confusing. It's confusing to
us when they give us a whole salary --". MEMBER REICHE: "Just for the record
I'm not confused." MR. TOOMEY: "Okay. I was."
1O Mr. Toomey: "Now, I know that, you know, I'm sure the numbers are clear
in your mind. I'm not quite so sure the numbers are clear in my mind. We
have established there were three proposals." Ms. Cormier: "That's correct."
Q. "Okay. The first proposal was the original proposal, and you claim that
that proposal said there was no step." A. "There was no increase for
teachers." Q. "Is there anything in that first proposal that would lead
anybody to believe that the people were not going to get steps?" A. "Well,
it was clear to me. If I look at this proposal and I'm on step 9, step 9 is
now step 8 of the old salary scale, so I guess if I look at it it's real clear
to me."
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35. Ms. Cormier testified that in each of its three
proposals the Committee increased the number of dollars that it
put on the table for wages and insurance. Ms. Cormier provided
these figures:
(First Proposal) "The first proposal would have been
nothing for salary and $3,858 less in
medical."
(Second Proposal) "[S]alary increases would be, of new
money, some of it they've already
received, $33,207, but of that they've
already received $15,135 for step
movements. And medical, $6,556, for a
total of $39,763."
(Third Proposal) "The total is $41,031 . . . $26,550 for
salary and $14,481 for the medical."[fn]11
36. The Association contends the Committee's third proposal
was regressive. Mr. Toomey's testimony in this regard compares
the first two years of the second and third proposals:
The first year of the contract dollars in their pocket
was $5,435 less, minus the $2500 for the health
insurance. The second year they made $10,000 less,
$10,467 less than they would have. So a grand total
for the two years the employees, all 20 of them, made
$15,902 less than they would have had they taken the
[second proposal] . . . [M]inus the health insurance,
which was about half of that.
. . . the pay scale of most of the people ended up
being like $897 less than they would have been making
had we taken the second proposal, and that, the pay
scale lasts forever . . . at the end of the line these
people's salary would have been much lower than had we
taken the second proposal . . .
37. The Association presented charts of pay scales
pertaining to the various Committee proposals. The charts do not
provide information concerning the number of teachers at each
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11 This was the committee's three-year proposal. Ms. Cormier testified:
" . . . if I look at the three years salary, that would be an additional
$52,172. What I just gave you was a comparison of year two to year two, with
just two years because I couldn't throw in two years and three years."
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step," or the numbers of years of experience in the Jefferson
school district for each of the teachers in the unit," or the
actual cost of each proposal to the school district. The charts
reflect the cost to the school district if one teacher was
employed on each step of the pay scale, and present an "average"
teacher's salary computed by adding up all of the steps and
dividing this amount by the number of steps.
38. Mr. Toomey testified:
You notice that there are people that are making less
than what they would have been had they gotten a two-
year contract, and the average was minus $98 but in
real terms when I took the actual people on the job
there was an average of a $200 increase for the actual
people in the job except for the fact that one of the
people at the top's leaving . . .
The $98 loss in terms of the scale. Even though it's a
three-year proposal, it's $98 less in terms of numbers
on the average than the two-year proposal . . . In
real terms as it plays out with the individuals it
actually is, there's a little, they make a little bit
out of it because of the people where they happen to be
on the scale, but the scale itself actually went down,
even though it was a scale based on three years as
opposed to, in comparison to a scale based on two
years.
. . . [t]hat's one of our biggest problems with their
last proposal isn't so much that there was less money
in their pocket but that their base rate of pay at the
end of that process was lower than it would have been
had they taken the second proposal, their base rate of
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12 For example, Mr. Toomey testified he did not know how many teachers had
greater than 15 years of experience. "I don't know. I would say, you know,
four or five or six, something like that . . . I'd say there's probably
four . . . I've got the date of hiring from some of my other statistics over
there. I could get it for you. But it's roughly that many." Mr. Toomey
never presented such evidence.
13 Information concerning the number of years of experience within the
Jefferson school system for each teacher becomes necessary when computing the
cost of longevity stipends, which are given to teachers who have taught in the
system for 12 years. On cross-examination, Mr. Toomey acknowledged that the
charts reflect averages computed by adding a longevity stipend and $200 bonus
to each step above and to the right of step 12 on the pay scale even though,
in actuality, every teacher on step 12 and above has not necessarily taught 12
years in Jefferson.
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pay for the rest of the time they were on their job
that every raise would be computed on.
39. The parties next met on January 12, 1996. At the end
of the session someone raised a concern that longevity pay may
not have been paid to an eligible teacher that year. Ms. Cormier
remarked that she needed to look at her records, but it was her
belief that the teacher had not been paid. It was the
Association's understanding that the teacher in question had
received longevity pay. Due to this discrepancy, one of the
teachers inquired whether it was an issue that should or could be
addressed through the contract grievance procedure. Ms. Angell
testified that Mr. Flagg responded: "Grieve it, make it formal,
and it will drag out . . . if you grieve it we'll drag it
out . . . if you go through the formal grieving, we'll drag it
out." Ms. Angell testified that "[her] perception of the comment
was one of harassment and threat."
40. Mr. Flagg recalls the conversation concerning longevity
pay differently.
It was at the end of our regular negotiations session
when one of the teachers remarked that they didn't
believe that everyone that was entitled to longevity
had been given it. At which time I spoke to the
superintendent, Dr. Young, and the business manager
[Ms. Cormier] and said let me check that out, I want to
make sure that we're paying anybody [sic] . . .
One of the teachers stated that it better be paid or
else they'd file a grievance . . . [I responded] that
they really didn't need to file a grievance, but if
they did it would just slow down the process and take a
lot longer for them to be paid . . . since I had
already spoken to the superintendent and the business
manager that they should correct the problem if one did
exist, that if they wanted to file a grievance we'd
have to go through the entire grievance process which
would take a lot longer to get resolved than just
getting it taken care of by speaking to the business
manager and the superintendent.
[In response to the question whether it was his intent
to pay teachers who were qualified for longevity, even
though the contract had expired] Absolutely. That was
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the reason for speaking to the superintendent.
41. The last session of negotiations was held on
January 29, 1996. The Committee asked the Association to present
a new proposal. Mr. Toomey testified the union was not inclined
to "bargain against ourselves" at this point in the process;
however, he suggested that if the Committee could come up with
$20,000 more for the third year of its third proposal "we could
talk about it." The Committee rejected the suggestion and the
parties agreed to go to arbitration.
42. At this session, someone asked whether the arbitration
decision would be binding on "money issues" and the
superintendent responded that it would not be binding. After
further discussion Mr. Flagg remarked, "It doesn't make a
tinker's dam when it's all done about the arbitration process."
Mr. Flagg suggested that issues that would be binding under the
arbitration decision could be settled.
43. Superintendent Young sent a letter to Ms. Angell, dated
February 26, 1996, which reads in its entirety:
As we are progressing with the negotiation process, I
would like to notify you that the Jefferson School
Committee intends to abide by the Maine Supreme Court's
ruling that step increases may be withheld.
If a contract settlement is not reached prior to
August 31, 1996, step movement will not be given to
individual teachers.
44. Ms. Angell understood this letter to mean "we were not
going to be getting our step increase for the upcoming school
year. It means that . . . we won't be getting any more money.
It means that . . . I really didn't know really what it meant
except that we weren't getting any more money and that the
contract, the negotiation process had stopped. I really didn't
know why I was receiving a letter like this."
45. Superintendent Young sent a similar letter to four of
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the five other association presidents within his district about a
month before he sent this one to Ms. Angell and to the president
of the local association in the Palermo school. Mr. Young states
that the letter was sent earlier to the other schools because
negotiations had not yet begun in those schools. In Jefferson and
Palermo, negotiations had already begun and "we hoped we would not
have to send it, hoped that we would be able to resolve the
contract prior to sending that letter." The first sentence of the
other letter is identical to the one received by Ms. Angell;
however, the second sentence reads: "If a contract settlement is
not reached prior to expiration date of the current contract, step
movement will not be given to individual teachers and will become
a negotiable issue." (emphasis added)
46. Mr. Toomey interpreted the letter as a proposal within
the context of these on-going negotiations to remove funding for
step increases from the bargaining table in the event the
contract was not signed by August 31, 1996.
47. Mr. Young states it was not his intent to remove step
increases from the committee's most recent proposal but, rather,
to convey the school board's intent to suspend payment of step
increases, consistent with the COLT decision, between expiration
of the contract and the signing of a successor agreement.
Mr. Young states that, prior to the COLT decision, step increases
were given whether the negotiation process was complete or not.
48. Mr. Young states he did not mention the negotiability
of retroactive step increases in Ms. Angell's letter because:
. . . we were hopeful at this point and did not wish to
make the letter sound too harsh. With the others,
negotiations hadn't begun and we wished to make that
point with them, that that was possible, possibly,
retroactivity of the contract was negotiable.
Mr. Young states he believed that retroactivity of step
increases remained a negotiable item in the Jefferson process
even though it was not a part of anyone's proposal prior to the
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signing of ground rules.
49. Ms. Angell and some other teachers did not receive
"letter[s] of intent" in the spring of 1996. Ms. Angell
explained that this form letter usually was sent to teachers no
later than May 1st of every year to confirm their re-hire for the
following school year; if salary issues remained unsettled due to
continuing negotiations the space for salary would be blank.
When asked whether the absence of the letter caused her to
feel her job was in jeopardy, Ms. Angell responded: "Personally,
no. I just feel that it seems like, again, the negotiation
process has stopped. We do not have a contract, we are not going
to do this."
50. Article XI "Working Conditions" of the collective
bargaining agreement which expired on August 31, 1994, reads, in
part:
G. 1. A written notice regarding employment and
salary agreement for the next contract year will be
given to all continuing contract teachers within three
(3) weeks of budget passage (if in March) or no later
than May 1st.
2. If the contract negotiations have not been
completed by the dates set in G.1., continuing contract
teachers will receive written notice of employment for
the next contract year by May 1st.
51. Ms. Deborah Mansfield testified that the summer
curriculum program began in the summer of 1993 and that she,
personally, participated in the summer curriculum program in
1994. Ms. Mansfield states she does not recall being asked to
sign a contract in order to be paid in 1994, but was asked to
sign a contract in the summer of 1995. Ms. Mansfield has no
direct knowledge of the manner in which the pay rates for summer
curriculum work were established.
52. Mr. Daniel Maguire has been a fourth grade teacher at
Jefferson Village School for seven years and is the current
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president of the Association. Mr. Maguire testified that he does
not recall the year the summer curriculum program began, but,
"[t]here has been sporadic summer employment throughout. It's a
general, it goes on, I think, in most schools. In fact, we had
some summer employment that was done through a grant program a
few years ago." Mr. Maguire testified further: "It's been my
experience that people have been hired to do summer work and it's
basically been word of mouth. This year we were issued
contracts."
53. Minutes of the June 17, 1993, Jefferson School
Committee meeting read, in part:
The committee reviewed the proposed guidelines as
presented by the superintendent. After some discussion
it was proposed that a $250 stipend be provided for
each teacher working on curriculum during the summer
months and that the curriculum be presented in draft
form to the committee at the August committee meeting.
54. In a letter to the Committee (date not clear from the
record), Mr. Maguire questioned the issuance of contracts for
summer curriculum work and asked the Committee to negotiate the
issue. The Committee responded by letter (see #55) and did not
negotiate the issue of wages for summer curriculum work.
55. The Committee articulated three reasons for their
refusal to negotiate wages for summer curriculum work: (i) the
work has traditionally been done based on individual contracts
with volunteer staff members; (ii) terms for payment for summer
curriculum have never been a part of collective bargaining
between the parties; and, (iii) in negotiations which were in
progress there had not been a timely proposal to make this issue
part of negotiations.
DISCUSSION
The Association has charged the Committee with violations of
the duty to bargain in good faith and with conduct which
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interferes with, restrains or coerces employees in the exercise
of their collective bargaining rights. With the exception of a
de minimis violation of the unilateral change rule which was not
alleged, we conclude that the Association has failed to meet its
burden of proving, by a preponderance of evidence, that the
Committee violated the Act. Teamsters Local Union No. 48 v. Town
of Fort Fairfield, No. 86-01, slip op. at 9, 9 NPER ME-17008
(January 24, 1986). (As the party averring that a prohibited
practice has occurred, the Union bears the burden of proving the
elements of the prohibited practice alleged.)
Refusal To Bargain Charge
The essence of the Association's refusal to bargain charge
is that the Committee negotiated a successor contract with a
take-it-or-leave-it attitude regarding wages and made regressive
proposals in response to the Association's demands."
In determining whether a party has negotiated in good faith,
we examine the totality of conduct over the course of
negotiations. Kittery Employees Association v. Strahl and the
Town of Kittery, No. 86-23, slip op. at 10, 9 NPER ME-18010
(Me.L.R.B. January 27, 1987). We have delineated many times the
factors relevant to this determination:
Among such indicators of good faith bargaining are
whether the parties have: met and negotiated at
reasonable times, observed the negotiating ground
rules, offered counterproposals, made compromises,
accepted the other party's positions, explained and
provided justification for their own positions, reduced
tentative agreements to writing, and participated in
the dispute resolution procedures.
____________________
24 The Board took evidence pertaining to an additional issue; namely, the
Committee's failure to negotiate wages for summer curriculum work. See
footnote 2 supra. We believe the evidence presented regarding summer
curriculum pay does not support a finding of unlawful refusal to bargain. The
reasons provided to the Association by the Committee for their refusal to
bargain were substantiated at hearing and constitute legitimate defenses to a
charge of unilateral change; namely, there was no change in the way wages for
summer curriculum work were established, and the union waived its right to
bargain over the issue. See Auburn Firefighters Association v. Valente, No.
87-19, slip op. at 7-9, 10 NPER ME-18017 (Me.L.R.B. September 11, 1987).
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Bangor Firefighters Association v. Robert W. Farrar and City of
Bangor, No. 94-45, slip op. at 10-11 (Me.L.R.B. February 15,
1995) (quoting Auburn Firefighters Association v. Valente, No.
87-19, slip op. at 10, 10 NPER ME-18017 (Me.L.R.B. September 11,
1987)).
We find the Committee engaged in all of the conduct
identified in Bangor Firefighters and, thus, negotiated in good
faith with the Association. Our decision focuses on the conduct
of the Committee between the months of October 1995 and March
1996.[fn]15 Specifically, we find that:
(i) the Committee did not fail to meet at reasonable times;
(ii) the Committee observed ground rules except for the
late introduction of the "Bob Plan," and there were no
serious ramifications to the Association for refusing to
consider the "Bob Plan";
(iii) the Committee offered counterproposals and the
Association failed to meet its burden of proving the
regressive nature of the Committee's proposals.[fn]16 To the
contrary, the second proposal was clearly more favorable
monetarily to employees than the first proposal; Mr. Toomey
testified that employees would have done better "in real
terms" with the Committee's last proposal than with its
second proposal; and Ms. Cormier testified to the
progressive increase in cost of each package. There was
also movement on non-monetary issues from proposal to
____________________
15 We admitted evidence pertaining to events which occurred before and
after the six-month period immediately preceding the filing of the complaint
"to shed light on the true character of matters occurring within the
limitations period." See Teamsters Local 48 v. City of Waterville, No. 80-14,
slip op. at 2-3, 2 NPER 20-11017 (Me.L.R.B. April 23, 1980).
16 The Association alleged that the February 26, 1996, letter constituted
a regressive proposal. We do not doubt the Association honestly believed this
to be the case; however, we conclude this letter did not constitute a proposal
in the context of these negotiations. We further discuss this correspondence
in the next section of this decision related to the Section 964(1)(A) charge.
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______________________________________________________________________________
proposal. We are not able to resolve any difference in
opinion regarding the value of proposals to unit members
because we were not given the necessary information to cost-
out the Committee's offers.
Similarly, the Committee's conduct is not indicative of
"surface bargaining." Surface bargaining is the term used
to describe those instances "when a party goes through the
motions of collective bargaining with no intention of
reaching agreement on the matters under discussion."
Teamsters Local Union No. 48 v. Town of Bar Harbor, No.
82-35, slip op. at 11 (Me.L.R.B. November 2, 1982) (quoting
MSAD No. 22 Board of Directors v. Tri-22 Teachers
Association, No. 82-33, slip op. at 6 (Me.L.R.B. October 5,
1982)).
In this case, the Jefferson School Committee did more than
"go through the motions." Their successive package
proposals were substantially different and there was
movement on wages and on other terms of the contract. "It
is not unlawful to take a tough bargaining stance on a
single issue, if adequate justification for that stance is
provided to the other party." Bangor Firefighters, slip op.
at 11 (citations omitted). We find that this is, at most,
what was going on here in terms of negotiations over wages.
(iv) the Committee made compromises throughout the course
of negotiations. It abandoned its initial proposal to
"redline" wages, it dropped its proposal to eliminate
stipends altogether, it came up on its proposals regarding
sick leave, and it changed its proposals regarding length of
school year.
(v) tentative agreements were reached and there is no
allegation that the Committee objected to putting them in
writing; and,
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(vi) the Committee participated in good faith in dispute
resolution procedures. The thrust of the Association's
complaint in this regard concerns the Superintendent's
cancellation of plans to jointly waive mediation and
Mr. Flagg's rejection of each and every recommendation in
the fact-finding report.
We conclude the Superintendent did not violate the Act when
he failed to abide by the agreement to waive mediation.
Apparently he believed it might appear that the Committee was not
trying hard enough to negotiate a deal if it agreed to skip this
step in the dispute resolution process.[fn]17 We do not conclude,
however, that the Committee decision to participate in mediation
was simply a sham to "look" good, or a tactic to delay and
frustrate the bargaining process.
When the Superintendent requested mediation, the Association
had just rejected out-of-hand the Committee's second proposal
which contained an increase in wages and concessions on non-
monetary issues; therefore, there was a possibility that an
agreeable counterproposal could be achieved with the help of a
mediator. Additionally, the Committee's request for mediation
was made promptly and the first session was scheduled as quickly
as possible; the session lasted six hours and the Committee
agreed to schedule another session; and, in the end, it was the
mediator's opinion that further mediation would be fruitless
which led to the joint request for fact finding.
We do not, however, condone the Superintendent's failure to
discuss his decision with Mr. Toomey prior to contacting the
Board to request mediation. We believe that this single decision
played a major part in the Association's belief that the
Committee was not dealing with it in an above-board manner.
____________________
17 This is not necessarily the case. We have held that parties may
forego mediation where neither party desires to submit because the likelihood
of success in such circumstances is remote. Maine State Employees Association
v. Bureau of Employee Relations, No. 92-31(Me.L.R.B. August 27, 1992).
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While this pointed discourtesy does not rise to the level of
bargaining in bad faith, we caution against such conduct in
future negotiations. A course of conduct of this nature could
very well undermine the status of a bargaining agent and, thus,
violate Section 964(1)(A). See Bangor Firefighters, slip op. at
15.
Likewise, we believe Mr. Flagg's categorical rejection of
the fact-finding report was arrogant and decidedly unhelpful.
Looking at the whole spectrum of conduct as we are required to
do, however, we conclude the Committee's actions spoke louder
than its words. Two weeks after the Association requested a
counterproposal to its proposal to adopt the fact-finding report,
the Committee presented its third proposal which, according to
Mr. Toomey, put more money in employees' pockets. This conduct
is indicative of an intent to reach an agreement, despite
Mr. Flagg's obstinate behavior at the earlier meeting.
In the totality of the circumstances, we hold that the
Committee did not violate the statutory duty to negotiate in good
faith.
Interference, Restraint and Coercion Charge
The essence of the Association's Section 964(1)(A) charge is
that the Committee made threatening and coercive comments
throughout negotiations and sent the February 26, 1996, letter to
Ms. Angell.
It is well established that a finding of interference,
restraint and coercion is based on "whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights" regardless of the
employer's motive or whether the conduct succeeded to coerce
employees. Teamsters Local 48 v. Town of Oakland, No. 78-30,
slip op. at 3 (August 24, 1978) (quoting NLRB v. Ford, 170 F.2d
735, 738 (6th Cir. 1948)).
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The Association relies heavily on our decision in the Bangor
Firefighters case to support its contention that the Committee
"improperly raised the spectre of unilateral implementation."[fn]18
We disagree.
The references to the law on unilateral implementation made
in this case are significantly different from those made in the
Bangor Firefighters case. Put in their context, the comments
made in this case do not contribute to a finding of surface
bargaining or rise to the level of interference, restraint or
coercion within the meaning of the Act.
In Bangor Firefighters, the employer specifically mentioned
the implications of the Mountain Valley decision[fn]19 in response to
repeated requests, prior to mediation, for more detail concerning
its retirement proposal. We found that the comments contributed
to a finding of surface bargaining because "the City's focus on
that possibility was clearly premature and . . . indicative of
the state of mind with which the City conducted negotiations."
A discussion regarding the potential for unilateral
implementation might, in some circumstances, be
appropriate after parties have participated in good
faith in all of the MPELRL's dispute resolution
procedures and have been unable to reach agreement.
Bangor Firefighters, slip op. at 13.
We do not believe that the Bangor Firefighters decision
requires us to find that all references to unilateral
implementation prior to arbitration, regardless of the context in
which they are made, constitute per se violations of Section
____________________
18 The comments in Bangor Firefighters contributed to the Board's finding
of surface bargaining. In Bangor Firefighters we determined that surface
bargaining inherently undermines the status of the bargaining agent and,
thereby, interferes with, restrains and coerces employees in the exercise of
their bargaining rights in violation of Section 964(1)(A). Bangor
Firefighters, slip op. at 11 and 15.
19 Mountain valley Education Assn. v. MSAD #43 Board of Directors, No. 93-
15 (Me.L.R.B. August 19, 1993), aff'd, No. CV-93-437 (Me. Super. Ct., Ken.
Cty., April 8, 1994), aff'd, 655 A.2d 348 (Me. 1995).
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964(1)(E) and, derivatively, Section 964(1)(A). In this case, we
have already found that the employer did not engage in surface
bargaining or otherwise violate the duty to bargain in good
faith; therefore, the comments must be considered not as
derivative violations of Section 964(1)(E), but standing alone as
potential violations of Section 964(1)(A).
One of the comments complained about is the Superintendent's
statement to Mr. Toomey in March 1995. The statement was made in
the context of a discussion regarding the expense to both parties
of fact finding and arbitration. According to Mr. Toomey, the
conversation was not hostile but, rather, an attempt to soothe
his anger. It is not clear from Mr. Toomey's testimony how the
conversation moved from the cost of arbitration to making him
aware of the law concerning unilateral implementation. In these
circumstances, and in the absence of other conduct indicative of
bad faith bargaining, we cannot find that the employer was
"focus(ed] on [the] possibility" of unilateral implementation nor
that the comment was coercive.
Similarly, we do not find that the comments made by
Mr. Flagg at the November 28, 1995, and January 29, 1996,
sessions were intimidating or coercive, considering the context
in which they were made. We have already noted that Mr. Flagg's
comments were arrogant and unhelpful and we do not condone his
approach to these negotiations. If there had not been movement
on the part of the Committee prior to arbitration, such as that
mentioned in the section above, these comments would contribute
to a finding of bad faith bargaining much like they did in the
Bangor Firefighters case.
We expect that such comments are made from time to time in
the often-heated exchange of negotiations and suggest that they
not be taken too literally. We hesitate to qualify or quantify
acceptable commentary at the bargaining table; in some cases,
depending on the circumstances, it may cross the threshold as it
did in Bangor Firefighters. We do not conclude that the specific
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comments made in this case, however, rise to the level of
unlawful intimidation, restraint or coercion.
We turn now to the issue of the February 26, 1996, letter
concerning step increases. The Association's complaint alleges
that the letter was punitive and regressive. We have already
addressed and dismissed the contention that the letter
constituted a regressive proposal. The basis of the Association's
charge that the letter was punitive is the timing of it, soon
after the Association informed the Committee that it intended to
go to arbitration.
We find no merit in the timing argument since all of the
district's association presidents received the letter in the
January-February 1996 time frame and, as it turns out, the
Jefferson letter could have gone out prior to the request for
arbitration but the Superintendent delayed sending it to the
Jefferson and Palermo presidents since their negotiations were
already in progress. We note, too, that there would seem to be
no motive for punishing the Association for advancing these
negotiations to arbitration since the request for arbitration was
jointly filed.
The Superintendent stated that the language concerning
negotiability of retroactive step increases was left out of the
Jefferson letter because he didn't want to sound harsh. We think
it had the opposite effect and that it is possible the language
was left out because the Committee made a tactical decision not
to raise the issue of retroactivity of step increases at this
point in the negotiations. Nevertheless, we find that the timing
and content of this letter would not tend to restrain or coerce
an employee in the exercise of their rights under this Act-
Notices of Employment
We will briefly address an issue raised at hearing
concerning the Committee's failure to send notices of employment
to teachers on the Association's negotiating team by May 1, 1996,
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pursuant to Article XI of the parties, expired contract.[fn]20
It is well established that an employer must maintain the
status quo as to terms and conditions of employment after
expiration of a collective bargaining agreement and that the
failure to do so constitutes a refusal to bargain in good faith.
See Lane v. Board of Directors of MSAD #8, 447 A.2d 806, 810
(Me. 1995). This failure to maintain the status quo may also be
viewed as violating the prohibition against interfering with the
exercise of collective bargaining rights. Id. The Committee's
failure to issue notices of employment, which were due to be
issued during these negotiations, constitutes a de minimis
violation of the Act which we will treat accordingly in our
Order.
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), it is hereby ORDERED:
(i) That the Jefferson School Committee cease and desist
from making any unilateral changes in the wages, hours or
working conditions of employment during the post-expiration
period of negotiations for a successor contract absent a
bona fide impasse in those negotiations as defined in
Mountain Valley;
____________________
20 Counsel for the committee objected to the line of questioning
concerning notices of employment on the basis of relevance and because "it's
not anything that's been one of the items of contention between the parties."
The objection was summarily overruled by Chair Chute. The failure to send
notices of employment occurred after this complaint was filed and amended, so
the issue could not have been raised in either pleading. It occurred within
the six-month period immediately preceding the hearing, so it was not raised
in an untimely fashion. Rule 4.09 permits "the pleadings to be amended and
shall do so freely when the presentation of the merits of the action will be
served thereby and the objecting party fails to satisfy the Board that the
admission of such evidence would prejudice it in maintaining its action or
defense upon the merits." Counsel for the Committee failed to raise the issue
of prejudice to its defense; therefore, the issue generated by this evidence
was properly before us.
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(ii) That the Jefferson Teachers Association's complaint in
this proceeding is otherwise hereby dismissed.
Dated at Augusta, Maine this 25th day of August, 1997.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right, pursuant to
26 M.R.S.A. 968(5)(F) (Supp.
1996), to seek review of this /s/_____________________________
decision and order by the Pamela D. Chute
Superior Court. To initiate Alternate Chair
such a review, 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 /s/_____________________________
of Civil Procedure. Gwendolyn Gatcomb
Employee Representative
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