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Minot School Comm. v. Minot Ed. Ass'n
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	1998 ME 211
Docket:  	Ken-98-30
Argued:  	June 11, 1998
Decided:	August 14, 1998

Panel:	 WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.
Majority:   WATHEN, C.J., and ROBERTS, CLIFFORD,  and RUDMAN, JJ.
Dissenting:   DANA, and SAUFLEY, JJ.

MINOT SCHOOL COMMITTEE

v.

MINOT EDUCATION ASSOCIATION 
and
MAINE LABOR RELATIONS BOARD

RUDMAN, J.

	[¶1]  The Minot School Committee appeals from the judgment
entered in the Superior Court (Kennebec County, Alexander J.) affirming the
decision of the Maine Labor Relations Board in favor of the Minot Education
Association on its prohibited practice complaint.  The School Committee
contends that the Board erred in determining that it had failed to bargain in
good faith and, alternatively, that the Board exceeded its statutory authority
to fashion remedies by vacating an arbitration panel's decision and by
awarding the Association its arbitration costs.  We affirm in part and vacate
in part.
	[¶2]  The Minot Education Association is the certified bargaining agent
for the teachers employed by the Minot School Committee, a public
employer.  The School Committee and the Association were parties to a
collective bargaining agreement that expired on August 31, 1995.  During
negotiations for a successor agreement, the parties met regularly, employed
fact-finding, and then jointly requested arbitration.  On June 12, 1996, the
Maine Board of Arbitration and Conciliation ("MBAC") conducted an
arbitration hearing.  On the same day, the Association initiated this action by
filing a Prohibited Practice Complaint with the Maine Labor Relations Board,
alleging, inter alia, that the School Committee had failed to negotiate in
good faith.
	[¶3]  The MBAC's decision recommended that the parties adopt the
School Committee's proposed salary scale.{1}  On July 22, 1996, the School
Committee proposed to the Association an agreement that fully incorporated
both the mandatory findings and the non-binding recommendations of the
MBAC.  The Association rejected the salary scale included within that
proposal and, on August 5, 1996, presented an alternative agreement.  The
School Committee rejected that proposal and, on August 6, 1996, notified
the Association that the decision of the arbitration panel was its "last, best
proposal."  After the Association again rejected that proposal, the
Committee decided unilaterally to implement the MBAC decision as of
September 1, 1996. 
	[¶4]  In response to the School Committee's unilateral
implementation of the MBAC decision, the Association amended its
prohibited practice complaint to allege that the School Committee had
unilaterally altered the terms and conditions of employment in the absence
of a bona fide impasse.  The Board determined that the School Committee
had not negotiated in good faith and that the School Committee's unilateral
implementation of the MBAC decision was impermissible because the
parties' impasse was not bona fide.  The Board ordered, inter alia, "[t]hat the
decision and award of the Board of Arbitration and Conciliation be vacated";
that the Committee "[c]ease and desist from refusing to bargain in good
faith"; and that the Committee "reimburse the Association for all reasonable
costs related to its participation in arbitration."  The Superior Court
affirmed the Board's decision.  This appeal followed.

II.

	[¶5]  The Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A. §§ 961-974 (1988 & Supp. 1997), extends to all
public employees the rights to organize and to bargain collectively.  See
Lewiston Firefighters Ass'n, Local 785, Int'l Ass'n of Firefighters, AFL-CIO v.
City of Lewiston, 354 A.2d 154, 157 (Me. 1976). "Collective bargaining"
includes the parties' mutual obligations "[t]o confer and negotiate in good
faith with respect to wages, hours, working conditions and contract
grievance arbitration," 26 M.R.S.A. § 965(1)(C) (1988), and "[t]o participate
in good faith in the mediation, fact-finding and arbitration procedures
required by this section," 26 M.R.S.A. § 965(1)(E) (1988).   The MPELRL
empowers the Maine Labor Relations Board to prevent "the prohibited acts
enumerated in section 964," 26 M.R.S.A. § 968(5)(A) (1988), one of which
is "[r]efusing to bargain collectively," 26 M.R.S.A. § 964(1)(E) (1988).  
	[¶6]  The Board determined that the School Committee failed to
bargain collectively with the Association, a determination that the School
Committee contends is erroneous.  We directly review the decision of the
Board and will reverse "only if the record demonstrates that the agency
abused its discretion, committed an error of law, or made findings not
supported by substantial evidence."  City of Bangor v. Maine Labor Relations
Bd., 658 A.2d 669, 671 (Me. 1995).  We accord the Board "considerable
deference" in construing the MPELRL because the Board is charged with its
enforcement.  Mountain Valley Educ. Ass'n v. Maine Sch. Admin. Dist. No.
43, 655 A.2d 348, 351 (Me. 1995).  "The Board's findings on questions of
fact are final unless clearly erroneous."  Id.  Pursuant to a clear error
standard,

[a]n appellate court can reverse a finding of fact only where (1)
there is no competent evidence in the record to support it, or
(2) it is based upon a clear misapprehension by the trial court of
the meaning of the evidence, or (3) the force and effect of the
evidence, taken as a total entity, rationally persuades to a
certainty that the finding is so against the great preponderance
of the believable evidence that it does not represent the truth
and right of the case.

Harmon v. Emerson, 425 A.2d 978, 982 (Me. 1981).  "In applying this
standard in an appellate proceeding, the factual findings . . . are not to be
altered or overturned . . . simply because an alternative finding also finds
support in the evidence."  Id.
	[¶7]  The Board concluded that the School Committee did not bargain
collectively with the Association because it violated section 965's
requirement that it bargain in good faith.  The Board premised this
conclusion on its factual findings that the School Committee chose not to
reach tentative agreements, failed to make compromises, and failed to
explain its bargaining position.  The record contains competent evidence to
support each of these findings.
	[¶8]  Becky Gould, who became a School Committee negotiator in
March of 1996, testified that she "had the authority to make tentative
agreements with the association" but that no tentative agreements were
reached while she was a negotiator.  Karen Nichols, the chief negotiator for
the Association, testified that only two tentative agreements were achieved
during the entire negotiations process and that the Committee's negotiators
otherwise never indicated that they could reach tentative agreements.  She
described the Committee's negotiators as "messengers" between the
Association's negotiators and the Committee, a description credited by the
Board, which determined that the Committee "went through the motions of
sending two of its members [Buker and Gould] back and forth to meetings
with the Association's negotiating team."  We defer to the Board's
opportunity to assess witness credibility.  See State v. Coombs, 1998 ME 1,
¶ 7, 704 A.2d 387, 398; see also State v. Webb, 673 A.2d 1345, 1346 (Me.
1996) ("'It is for the fact finder to decide the credence to be given the
various witnesses and their testimony.'") (quoting State v. Reardon, 486
A.2d 112, 117 (Me. 1984)).  This testimony supports the Board's factual
finding that "the Committee's negotiating team did not have the authority to
reach tentative agreements or they chose not to exercise the authority they
had."
	[¶9]  The record also contains competent evidence to support the
Board's finding that the School Committee failed to bargain "in the
traditional sense" by making compromises or by explaining its bargaining
position.  George Buker, a School Committee negotiator, testified that the
School Committee's proposal as of June 5, 1996 was the same proposal that
it had first presented on October 18, 1995.  He explained that the School
Committee had presented one different proposal in February of 1996 but the
Association rejected it.  After this rejection, the School Committee reverted
to its October 1995 proposal.  Superintendent Robert Wall testified that the
February 1996 proposal included a provision that salary raises would be
"retroactive to the seventh paycheck."  Wall explained that "retroactive to
the seventh paycheck" meant that the teachers would "be paid at the old
scale up to the seventh payroll and then from the seventh on on the new
scale . . ." because the budget did not contain enough money to cover the
increased salary scale for the entire fiscal year.  Nichols testified, however,
that she understood "retroactive to the seventh paycheck" to mean that the
new salary scale would take effect "seven paychecks from when we settled." 
Nichols explained that at the February 9, 1996 bargaining session, the
School Committee indicated that the longer the teachers waited to settle,
the fewer "retro checks" they would get.  Nichols further explained that at
the March 4, 1996 bargaining session, the School Committee reiterated its
intention to reduce the "retro checks."  This testimony supports the
Board's factual finding that the Association's misunderstanding of the
"retroactive to the seventh paycheck" proposal "was fortified by comments
made by Committee members in February, and again in March, that the
longer the Association waited to accept the offer, the less money they would
have in-pocket." 
	[¶10]  Evidence concerning the May 24, 1996 and June 5, 1996
bargaining sessions also supports the Board's finding that the School
Committee failed to explain its bargaining position.  Nichols described the
parties' May 24 negotiating session as "the most productive meeting we had
ever had."  She described that both parties were talking numbers and that,
at the end of the meeting, the teachers thought they had reached an
agreement.  The School Committee subsequently sent the Association a
letter rejecting the May 24 proposal that explained only:  "[t]he Minot
School Committee agrees with many provisions submitted.  However, there
are aspects of the proposal that are not acceptable."  Nichols testified that at
the June 5 meeting, Buker and Gould declined to inform the Association
which provisions of the May 24 proposal were objectionable to the School
Committee.
	[¶11]  We conclude that the Board's findings that the School
Committee failed to pursue tentative agreements, failed to make
compromises, and  failed to explain its bargaining position to the
Association, all supported by competent evidence in the record, necessitate
the legal conclusion that the School Committee failed to bargain collectively
pursuant to 26 M.R.S.A. § 965.  We acknowledge that the Board's factual
findings also included an examination of the involvements of several School
Committee members with a petition for a special town meeting to consider,
inter alia, the rescission of an appropriation to the school budget.  Although
we agree with the School Committee's contentions that the First
Amendment to the United States Constitution protects its members' rights
to petition when they act in their personal capacities, and that the Board
cannot consider such activity as evidence of the School Committee's good or
bad faith during collective bargaining, we conclude that the Board's error
was harmless.  
	[¶12]  To determine whether an error is harmless, "the crucial
question is not whether there is substantial evidence to support the
judgment, but whether error affected the judgment."  Roger J. Traynor, The
Riddle of Harmless Error at 28 (1970).  We have observed that "[o]nly when
the agency is shown to have relied upon incompetent evidence to the
prejudice of the complaining party can the admission of such evidence
require reversal of the agency decision."  In re Ryerson Hill Solid Waste
Disposal Site-Paris Util. Dist., South Paris, 379 A.2d 384, 391 (Me. 1977).  A
careful reading of the Board's decision reveals that the Board did not rely
upon the evidence of School Committee members' petitioning activity in
determining that the School Committee had violated section 965.  The
Board's decision addressed the special meeting petition only after
examining:  School Committee negotiators' failure to exercise their authority
to make tentative agreements; attempts by the Association to initiate
bargaining and to make compromises; attempts by the Association to arrive
at an agreement at the May 24 and June 5 bargaining sessions; the School
Committee's failure to explain the "retroactive to the seventh payroll" salary
proposal; and the School Committee's failure to explain its opposition to the
Association's proposals.  The Board concluded that "any one of these events"
established a lack of good faith on the part of the School Committee.    The
Board then made the additional observation, not integral to its analysis,  that
these events "colored by the petition" demonstrated misconduct.  In light of
the Board's extensive factual findings and explicit determination that "any
one of" the School Committee's enumerated acts during negotiations
established a violation of its duty to bargain in good faith, we conclude that
the Board's discussion of the special meeting petition, although improper,
did not affect its conclusion that the School Committee violated its statutory
duty to bargain in good faith.  See 26 M.R.S.A. § 965.

III.

	[¶13]  We reject the School Committee's contention that its unilateral
implementation of its last best offer did not violate the MPELRL.  A "well
established rule of labor law" is that an employer's unilateral alteration of
the terms and conditions of employment after the expiration of a collective
bargaining agreement constitutes a violation of that employer's "statutory
duty to bargain in good faith."  Lane v. Board of Dir. of Maine Sch. Admin.
Dist. No. 8, 447 A.2d 806, 809-10 (Me. 1982).  One exception to this rule is
that an employer may "unilaterally implement its last best offer when
negotiations have reached a bona fide impasse."  Mountain Valley, 655 A.2d
at 352.   A bona fide impasse results when "the parties have in good faith
exhausted the prospects of reaching an agreement . . . ."  Id. (emphasis
added).  "The determination of impasse is predominantly a question of fact
and therefore will be upheld unless clearly erroneous and unsupported by
substantial evidence on the record."  Id. at 354.
	[¶14]  The Board correctly concluded that the parties had not reached
a bona fide impasse when the School Committee unilaterally implemented
the MBAC decision.  We reject the School Committee's contention that
"[t]he parties clearly had reached a bona fide impasse after the completion
of the three-step dispute resolution procedures, when the Association
repeatedly and adamantly refused to accept the School Committee's offers to
fully incorporate the arbitration panel's unanimous findings into a collective
bargaining agreement."  The exhaustion of impasse resolution procedures
will not give rise to a bona fide impasse when a party's conduct throughout
the negotiations process is motivated by bad faith.{2}  The purpose of the
MPELRL is "to promote the improvement of the relationship between public
employers and their employees . . . ."  26 M.R.S.A. § 961 (1988).  To
effectuate this intent, the Legislature requires parties "to bargain
collectively" by, inter alia, "meet[ing] at reasonable times," "confer[ing] and
negotiat[ing] in good faith with respect to wages, hours, working conditions
and contract grievance arbitration," and "participat[ing] in good faith in the
mediation, fact-finding and arbitration procedures required" by section 965. 
26 M.R.S.A. § 965(1).  These requirements involve the parties' conduct
during negotiations.  They do not narrowly focus on the reasonableness of a
party's final offer.  In this case, substantial evidence supports the Board's
conclusion that the School Committee did not bargain in good faith.  The
School Committee cannot rely upon its ultimate willingness to adopt the
arbitration panel's decision to cure its misconduct during negotiations.  The
Board correctly concluded that the School Committee's failure to bargain in
good faith precluded the existence of a bona fide impasse.

IV.

	[¶15]  The School Committee contends that the Board exceeded its
remedial authority by ordering "[t]hat the decision and award of the Board of
Arbitration and Conciliation be vacated . . . ."  We agree.  Pursuant to section
972 of Title 26, "[e]ither party may seek a review by the Superior Court of a
binding determination by an arbitration panel.  For interest arbitrations, the
review must be sought in accordance with the Maine Rules of Civil
Procedure, Rule 80B."  26 M.R.S.A. § 972 (1988 & Supp. 1997) (emphasis
added).  This section explicitly provides that only the Superior Court,
presiding in a Rule 80B appeal, may vacate an interest arbitration decision. 
	[¶16]  We reject the Board's contention that it may vacate an
arbitration decision pursuant to subsection 968(5)(A), which states that the
Board's power to prevent prohibited acts "shall not be affected by any other
means of adjustment or prevention that has been or may be established by
agreement, law or otherwise."  26 M.R.S.A. § 968(5)(A) (1988).  The effect
of subsection 968(5)(A) is that an arbitration panel's decision on disputed
terms and conditions of employment does not affect the Board's authority to
require a party to cease and desist from committing a prohibited practice
and "to take such affirmative action . . . as will effectuate the policies" of the
MPELRL.  26 M.R.S.A. § 968(5)(C) (1988).  Subsection 968(5)(A)'s general
grant of authority to the Board does not empower it to vacate an interest
arbitration decision in contravention of section 972's allocation of review
exclusively to the Superior Court.{3}  See Ziegler v. American Maize-Prod. Co.,
658 A.2d 219, 222 (Me. 1995) (construing specific statutory provisions as
taking precedence over general provisions). 
	[¶17]  "A properly designed remedial order seeks 'a restoration of the
situation, as nearly as possible, to that which would have obtained' but for
the unfair labor practice."  Caribou Sch. Dep't v. Caribou Teachers Ass'n, 402
A.2d 1279, 1284 (Me. 1979).  In this case, because the Board's failure to
bargain in good faith rendered its unilateral implementation of the MBAC's
decision impermissible, a proper remedy is the return of the parties to the
bargaining table to negotiate in good faith the salary, pension, and insurance
issues as to which the MBAC decision is not binding. 

V.

	[¶18]  Lastly, we agree with the School Committee's contention that
the Board exceeded its statutory authority by ordering the School
Committee to "reimburse the Association for all reasonable costs related to
its participation in arbitration."  Pursuant to subsection 965(6) of Title 26,
"[t]he cost for services rendered and expenses incurred by the State Board
of Arbitration and Conciliation . . . must be shared equally by the parties to
the proceedings . . . ."  26 M.R.S.A. § 965(6) (Supp. 1997).  Statutory
interpretation is a question of law that we review de novo.  See Estate of
Spear, 1997 ME 15, ¶ 1, 689 A.2d 590, 591.  The plain language of
subsection 965(6) requires the parties to an arbitration to share the costs of
that arbitration equally.  See id. at ¶ 2, 689 A.2d at 591-92 (according the
words of a statute "their plain ordinary meaning" if that meaning is clear
and the result is not "illogical or absurd").  We acknowledge that the
Legislature has given the Board broad discretion to fashion remedies for
prohibited practices, see 26 M.R.S.A. § 968(5)(C) (empowering the Board
"to take such affirmative action . . . as will effectuate the policies in this
chapter"), but subsection 965(6)'s requirement that the parties to an
arbitration equally bear the costs of that arbitration takes precedence over
the general grant of remedial authority to the Board set forth in section
968(5)(C), see Ziegler, 658 A.2d at 222.  We conclude that the Board
exceeded its authority by ordering the School Committee to reimburse the
Association for its arbitration costs.
	The entry is:

Judgment modified to vacate the order of the Maine
Labor Relations Board vacating the decision of the
Maine Board of Arbitration and Conciliation and
making the Minot School Board solely responsible
for the arbitration costs; as modified, judgment
affirmed.