STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 99-04
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)
MAINE EDUCATION ASSOCIATION/NEA, )
)
Complainant, )
)
v. ) PREHEARING CONFERENCE
) MEMORANDUM AND ORDER
GREENVILLE SCHOOL COMMITTEE )
and JOAN MILLS, SUPERINTENDENT )
OF SCHOOLS, )
)
Respondents. )
_________________________________)
A prehearing conference was held in the above-captioned
matter in Augusta, Maine, at 9:30 a.m. on Tuesday, September 22,
1998. Present for the Complainant was Joseph A. Stupak, Jr.
Present for the Respondents was Bruce W. Smith, Esq.
AMENDMENTS TO PLEADINGS
The Complainant filed an amended complaint in response to a
letter from the executive director regarding the original
complaint. In its August 12, 1998, response to the counter-
complaint, the Complainant made a further motion to amend. At
the prehearing conference, that motion was granted by agreement.
The Respondents moved to amend their answer to deny the
additional allegations of the amended complaint, and that motion
was also granted by agreement.
STIPULATIONS
The parties stipulated as follows: paragraph 4 of the
complaint, as amended, is withdrawn to the extent of the
allegations relating to May 6, 1998.
Paragraph 6 of the complaint, as amended, is withdrawn to
the extent of the allegations relating to June 16, 1998.
The Respondent noted that it reserves the right to assert
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that the grievance settlement involving Norman Pelletier resolves
all or part of the allegations in paragraph 5 of the complaint,
as amended.
For purposes of standing, the Maine Education Association is
an "employee organization" within the meaning of the Municipal
Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. ch.
9-A.
ISSUES
Amended complaint: whether the Greenville School Committee,
its members and agents and Joan Mills, Superintendent of Schools,
violated 26 M.R.S.A. 964(1)(A),(B) and (E) of the Act by
engaging in any or all of the activity alleged at paragraphs 1-8
of the complaint, as amended.
Counter-complaint: whether the Greenville Education
Association and/or the Maine Education Association have violated
26 M.R.S.A. 964(2)(A) and (B) by virtue of the activity alleged
at paragraphs 1-5 of the counter-complaint.
WITNESSES
Complainant's witnesses:
Darralyn Gauvin
Charles Carter
Norman Pelletier
Roxanne Roberts
Kathy Stafford
Sherry Deming
Bruce Wyman
Joseph A. Stupak, Jr.
There was a question raised at the prehearing conference
regarding the ability of Mr. Stupak to testify as a witness on
behalf of the Complainant. I indicated that, while Mr. Stupak's
testimony as a fact witness would be allowed, it would be
necessary for the testimony to be presented according to the
ordinary method, i.e. through questions and answers. As far as I
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am concerned, Mr. Stupak can ask himself questions and then
answer them, but narrative testimony will not work, because it
deprives the opposing party of the opportunity to object to
questions before an answer is given.
Respondents' witnesses:
Cindy Anderson Brad Erickson
James Diemer Diane Bartley
Sherry Deming Norman Pelletier
Burton Whitman Charles Carter
Bruce Wyman Roxanne Roberts
Joan A. Mills Kathy Stafford
Mike Marcinkus David Morrill
Gilbert Reynolds Jim Richards
Roxanne Holmbom Loren Ritchie
Duane Alexander Janet Chasse
Steve Lizotte Jeff Stafford
Peggy Christensen Fran Trefts
Greg Christensen Lena Symonds
Linda Christensen Selena Tardif
Lianne Weingart Darralyn Gauvin
Kelly Weingart Jody DuPuy
Terry Raposa Keyth Carter
Rory Owens Judy Thornton
Amber Whitman Prudy Richards
Dr. Crumley Ron Pelletier
Sandra Bouchard
EXHIBITS
Complainant's exhibits:
C-1. Letter from Joan Mills to Darralyn Gauvin dated
March 16 1998
C-2. Evaluation of Darralyn Gauvin by Michael Marcinkus
dated March 19 and 20, 1998
C-3. Memorandum dated March 24, 1998 from Michael
Marcinkus to Darralyn Gauvin
C-4. Letter from Joan Mills to Darralyn Gauvin dated
April 15, 1998
C-5. Job Description - High School Administrative
Secretary
C-6. Letter from Cindy Anderson dated June 9, 1998 to
Darralyn Gauvin
C-7. Letter dated February 13, 1998 from Joan Mills
to Norman Pelletier and later related grievance
documents
C-8. Letter dated December 2, 1997 from Joan Mills
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to Darralyn Gauvin
C-9. Grievance dated February 26, 1998 concerning
Darralyn Gauvin and later related grievance
documents
C-10. Minutes of Greenville School Committee meeting
of June 22, 1998
C-11. Evaluation of Darralyn Gauvin dated February 5,
1990
C-1 through C-11 were admitted by stipulation.
Respondents' exhibits:
R-1. Grievance of February 25, 1998 concerning denial
of Association leave and subsequent documents
R-2. Grievance of February 25, 1998 concerning denial
of personal leave and subsequent documents
R-3. Grievance of February 25, 1998 concerning denial
of Association leave and subsequent documents
R-4. Letter from Joan Mills to Norman Pelletier dated
February 13, 1998 and grievance documents
regarding same
R-5. Grievance of March 5, 1998 alleging illegal
employment of teachers and related documents
R-6. Grievance of February 25, 1998 concerning home
room assignments and subsequent documents
R-7. All exhibits admitted at the hearing to consider
dismissal of Darralyn Gauvin
R-8. Grievance of February 26, 1998 concerning reprimand
of Darralyn Gauvin and subsequent documents
R-9. Letter from Joan Mills to Darralyn Gauvin dated
April 15, 1998
R-10. Letter from Joan Mills to Darralyn Gauvin dated
May 6, 1998
R-11. Prohibited Practice Complaint served by Association
May 20, 1998
R-12. Memorandum of Agreement concerning summer curriculum
development work payments
R-13. Letter from Greenville School Committee to Darralyn
Gauvin stating reasons for dismissal
R-14. Grievance concerning school board renewal and
nonrenewal votes and related documents
R-15. Grievances of GEA and Norman Pelletier and of GEA
dated June 17, 1998 and subsequent documents
R-16. Letter from Joan Mills to Norman Pelletier dated
May 6, 1998
R-17. Superintendent's notes of meeting of May 6, 1998
R-18. Letter from Joseph A. Stupak to Joan Mills dated
July 9, 1998
R-1 through R-6, R-8 through R-14, and R-17 were all
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admitted by stipulation. R-7 is to be supplemented with missing
documents. The Complainant will not object if the exhibit is
supplemented. R-15 and R-16 are withdrawn.
Both parties expressed the desire to put supplemental
exhibits into the record. Such supplemental exhibits, if any,
shall be exchanged by the parties and be provided to the Board
(5 copies) at least one week prior to the evidentiary hearing.
Objections to admissibility, if any, will be heard when each
exhibit is offered during the hearing.
MOTION TO DEFER
Respondents have filed a written motion to defer this case
to the parties' contractual grievance procedure. Respondents
indicate that there are six grievances pending at various stages
of the contractual grievance arbitration process. Relying on the
Board's prior decision in Maine State Employees Association v.
State, Case No. 96-09, Respondents argue that for this case to
proceed would inject the Board into issues subject to the
contractual grievance process. Of the six pending grievances,
two have been initiated by a former employee, Darralyn Gauvin.
Ms. Gauvin is referred to at paragraph 1, 2, 3, and 6 of the
complaint, as amended. Respondents' deferral motion is also
premised on a grievance initiated on behalf of Norman Pelletier
and scheduled for hearing in December, 1998. This grievance
relates to a reprimand issued to Mr. Pelletier on February 13,
1998, and is referred to in paragraph 4 of the complaint, as
amended.
The Complainant objects to the motion to defer on the ground
that, while there are areas of factual overlap between this case
and the grievances in question, there is a fundamental difference
between the issues raised in this proceeding and the interest and
issues in the grievance proceedings. The Complainant points out
that this proceeding is brought in the name of the state
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association rather than in the names of any individuals,
underscoring the Complainant's view that the underlying injury is
to the association as much as to any individual. From the
Complainant's perspective, Respondents' conduct has chilled
employees' exercise of their rights under applicable labor law.
Further, the Complainant notes that the Respondents are seeking
to have dismissed certain of the very grievances in favor of
which they argue this case should be deferred.
The fundamental purposes of deferral are, first, to assure
that no party unfairly obtains "two bites at the same apple,"
and, second, to avoid entangling this Board in issues that the
parties have bargained to submit to arbitration, and that in fact
are being arbitrated.
The complaint, as amended, does allege a pattern of conduct
in violation of the Act. As the Respondents note, there is
likely to be some factual overlap between the evidence admitted
in this case and the evidence admitted in the various arbitration
proceedings. There is also overlap between the relief sought in
this case (reinstatement of Ms. Gauvin, for example) and the
relief presumably being sought in arbitration. However, there
are clear differences between the legal issues presented in this
case and the issues in arbitration. The complaint, as amended,
alleges a pattern of conduct in violation of the Act, affecting
not only the individuals who are pursuing grievances, but other
individuals as well. This point is important because it means
that the scope of evidence relevant to this case is likely to be
broader than the scope of the evidence relevant to any single
arbitration proceeding. Thus, while the arbitrations together
may cover most of the same factual ground as could be covered in
this case, no single arbitration will do so, and no single
arbitrator will consider the entire pattern of conduct alleged
in the complaint, as amended. The Complainant is entitled to an
adjudication of the issues raised in the Complaint, as amended,
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and it is clear that no arbitration will fulfill this
entitlement.
The Board has repeatedly held that deferral to the arbitral
process is the preferred course in appropriate cases; however,
decisions to defer are within the Board's discretion and they are
not made indiscriminately. Maine State Employees Ass'n v. State
of Maine, No. 86-09, slip op. at 6 n. 4, 9 NPER ME-17010
(Me.L.R.B. Apr. 23, 1986). The Board has declined to defer in
cases involving allegations of discrimination in violation of the
Act. Id.
The Respondents have pointed out that the Complainant's
simultaneous pursuit of this case and the arbitration cases could
result in duplicative presentations and inconsistent outcomes.
By way of example, the issue whether there is cause for
Ms. Gauvin's discharge will be part of the employer's case in
arbitration, and could also be a defense in this proceeding.
This Board might decide to reinstate Ms. Gauvin, for example, but
an arbitrator might uphold her discharge. The risk of
duplicative presentations exists whenever the same set of facts
can be contested in two different forums, and, standing alone, is
not a reason to defer. The risk of inconsistent outcomes,
however, is more problematic but it can be avoided by judicious
framing of remedy. For example, even if this Board finds
Respondents violated the statute in connection with the discharge
of Ms. Gauvin, the Board could still decline to order her
reinstatement.
The Board is cognizant of the unfairness inherent in
allowing a party "two bites at the same apple," the burdens
resulting from participation in separate proceedings involving
overlapping issues, and the possibility of inconsistent results
in the two forums. For the foregoing reasons, the motion to
defer is denied. Because some or all of the arbitration
proceedings may be resolved in a manner that affects the outcome
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of the instant case before it is ready for decision, the denial
of the motion to defer is without prejudice to renewal, if
appropriate.
MOTION TO DISMISS FOR LACK OF STANDING
The Respondents have moved to dismiss the complaint, as
amended, for lack of standing, on the ground that the Complainant
has no contractual relationship with either of the grievants, and
lacks standing to pursue the complaint. There is no dispute that
the Complainant is an employee organization within the meaning of
962(2) and 968(5) of the Act, nor that the Complainant is
affiliated with the Greenville Education Association, the
bargaining agent named in the collective bargaining agreements
with Respondent Greenville School Committee for the bargaining
units involved in this case. Finally, there is no dispute that
the individual employees named in the complaint, as amended, as
the victims of Respondents' alleged practices are also members of
the Complainant association.
On these allegations, the motion to dismiss for lack of
standing should be denied. The allegations include the assertion
that Respondents have engaged in a pattern of conduct that has
caused injury to the Complainant association by virtue of action
taken against some of its members. Under the commonly accepted
test of associational standing, an association may obtain
standing based upon injuries suffered by some or all of its
members. See United Auto Workers v. Brock, 477 U.S. 274, 281-82
(1986); Hunt v. Washington State Apple Advertising Comm'n, 432
U.S. 333, 342-43 (1977). As the United States Supreme Court has
indicated, an association has standing to sue on behalf of its
members when it satisfies three criteria: (1) at least one of
the members possesses standing to sue in his or her own right;
(2) the interests that the suit seeks to vindicate are germane to
the organization's purpose; and (3) neither the claim asserted
nor the relief demanded necessitates the personal participation
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as parties of affected individuals. See UAW v. Brock, supra,
477 U.S. at 282; see also United Food & Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. ___, ___, 134 L. Ed. 2d
758, 770-71 (1996). See also United States v. AVX Corp., 962
F.2d 108, 116 (1st Cir. 1992).
The fact that the association, and not the persons allegedly
harmed by actions of the Respondents, is the named party may
limit the issues and relief available, but it does not bar the
association from commencing this proceeding. For these reasons,
the motion to dismiss for lack of standing also should be denied.
ORDER
It is accordingly ORDERED that this matter come on to be
heard by the full Board on November 13 and December 10, 1998.
It is further ORDERED that the parties shall give to the Board
and to each other at least 48 hours' notice of additional
witnesses to be offered at any such hearing and any of the above-
listed witnesses who will not be offered at the hearing.
Dated this 30th day of October, 1998.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Andrew M. Horton
Alternate Chair
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