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Minot schools case, dissenting opinion.

DANA, J., with whom SAUFLEY, J., joins, dissenting. [¶19] I do not agree that the Board's impermissible consideration of the School Committee members' constitutionally protected petitioning activity was harmless. I also believe that the Board's conclusion that the parties had not reached a bona fide impasse when the School Committee implemented its last best offer was based on an error of law. Because I would vacate the judgment in its entirety, I respectfully dissent. [¶20] The Court acknowledges that the Board should not have considered the School Committee members' political conduct, which was undertaken in their personal capacities, but concludes that the error was harmless. I cannot agree. Although the Board, relying heavily on the testimony of the Association's chief negotiator, found that the School Committee failed to meaningfully participate in the bargaining process in several respects, all of its findings, in my opinion, were influenced by its disapproval of the actions of some of the Committee members in petitioning for a special town meeting to address, among other issues, the school appropriation. The Board, immediately after stating it would "examine the totality of the charged party's conduct to determine whether their actions during negotiations indicate a present intention to find a basis for agreement," made the following finding: "[T]his effort on the part of the members of the Minot School Committee to return funds which were earmarked to settle this contract was, at best, indicative of their state of mind throughout these negotiations and, at worst, a bold-faced attempt to avert an agreement." After addressing the facts of the May 24 and June 5 bargaining sessions, the Board went on to "find that any one of these events and, most certainly, that this course of conduct, colored by the petition and culminating in the refusal to bargain on June 5, constitutes bargaining in bad faith." (Emphasis added). Notwithstanding the Board's language that "any one of these events" constituted bad faith, the Board's ultimate finding was based explicitly on its examination of "the totality of the charged party's conduct," which it found was "colored by the petition." In my opinion, the Board's decision reveals that it evaluated the School Committee's bargaining conduct through the prism of its distaste for the School Committee members' political activity. Because each of the Board's findings that may have supported a determination of bad faith bargaining was "colored" by its impermissible consideration of the individual School Committee members' personal political conduct, I am compelled to conclude that the error was not harmless. [¶21] In attempting to craft an appropriate remedy in this case, the Board also erred in its analysis of the impasse issue. In its decision, the Board stated: "This bad faith bargaining forced the negotiations into arbitration when, in actuality, the parties had not reached a bona fide impasse."{4} Under Maine law, however, an impasse, whether or not bona fide, cannot occur, until after the statutory third-party intervention procedures are exhausted. See Mountain Valley Educ. Ass'n v. Maine Sch. Admin. Dist. No. 43, 655 A.2d 348, 352 (Me. 1995). Although, as a practical matter, parties to a labor dispute will be stalemated on at least some issue prior to invoking arbitration, there is no requirement that they be at an "impasse" or be hopelessly deadlocked. [¶22] In addition to making the irrelevant finding that the School Committee "forced" the negotiations into arbitration in the absence of a bona fide impasse, the Board went on to find that the parties were not at a bona fide impasse when the School Committee implemented its last best offer following arbitration. The Board made this finding despite its assertion that it was addressing only the Association's allegations that related to conduct prior to arbitration. Even assuming that the School Committee engaged in bad faith bargaining prior to participating in arbitration, the Board simply made no findings with regard to whether the parties were at a bona fide impasse at the time the School Committee implemented its last best offer. An impasse is that point in negotiations when the parties, in good faith, are entitled to conclude that further bargaining would be futile. The judgment of whether further negotiations would be futile must be viewed from the vantage point of the parties at the time they believed an impasse was reached. AMF Bowling Co. v. NLRB, 63 F.3d 1293, 1301 (4th Cir. 1995) (emphasis added) (citations omitted). Although a failure to negotiate in good faith at some point during the proceedings may be a relevant factor in determining whether the parties have reached a bona fide impasse, here the Board explicitly declined to consider the relationship between the parties at the time the School Committee implemented its last best offer, yet concluded that the "unilateral change in wages, absent bona fide impasse, violated the Act." Because the Board essentially adopted the unjustified per se rule that any bad faith during negotiations will preclude the existence of a subsequent bona fide impasse, its determination that the parties had not reached a bona fide impasse was based on an error of law. [¶23] I would vacate the judgment of the Superior Court and direct the court to vacate the decision of the Board and remand the matter to the Board for a full and appropriate consideration of whether the School Committee engaged in prohibited labor practices and whether the parties were at a bona fide impasse when the School Committee unilaterally implemented the arbitration recommendations.
Attorneys for plaintiff: George S. Isaacson, Esq., (orally) Daniel C. Stockford, Esq. Brann & Isaacson P O Box 3070 Lewiston, ME 04243-3070 Attorneys for defendants: Joyce A. Oreskovich, Esq., (orally) Maine Labor Relations Board 90 State House Station Augusta, ME 04333-0090 Shawn C. Keenan, Esq., (orally) Maine Education Association 35 Community Drive Augusta, ME 04330-9487
FOOTNOTES******************************** {1} Pursuant to the Municipal Public Employees Labor Relations Law, 26 M.R.S.A. §§ 961- 974 (1988 & Supp. 1997), parties engaged in collective bargaining may jointly agree to an arbitration procedure which will result in a binding determination of their controversy. . . . With respect to a controversy over salaries, pensions, and insurance, the arbitrators will recommend terms of settlement and may make findings of fact; such recommendations and findings will be advisory only . . . with respect to a controversy over subjects other than salaries, pensions and insurance, the arbitrators shall make determinations with respect thereto . . . and if made by the majority of the arbitrators, such determinations will be binding on both parties . . . . 26 M.R.S.A. § 965(4) (1988). {2} We have noted with approval the Board's policy to reject a party's claim of bona fide impasse prior to the completion of impasse resolution procedures, "absent extraordinary circumstances." Mountain Valley, 655 A.2d at 352. {3} We further observe that the Legislature has limited the Superior Court's authority to vacate an arbitration decision. Pursuant to the Uniform Arbitration Act, 14 M.R.S.A. §§ 5927- 5949 (1980), the Superior Court may vacate an arbitration award only if: [t]he award was procured by corruption, fraud or other undue means; . . . [t]here was evident partiality by an arbitrator appointed as a neutral [arbitrator] or corruption in any of the arbitrators or misconduct prejudicing the rights of any party; . . . [t]he arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 5931, as to prejudice substantially the rights of a party; . . . [t]here was no arbitration agreement and the issue was not adversely determined in proceedings under section 5928 and the party did not participate in the arbitration hearing without raising the objection; or . . . [t]he award was not made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court has ordered, and the party has not waived the objection. 14 M.R.S.A. § 5938. {4} The extent to which the Board's distaste for those activities protected by the First Amendment tainted its findings is exemplified by the finding that the School Committee's conduct forced the parties into arbitration when, in fact, the parties jointly requested arbitration.
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