The IAFF Local 1650, Augusta Fire Fighters filed a
prohibited practice complaint on September 1, 2010, in which it
alleged that the City of Augusta violated section 964(1)(E) of
the Municipal Public Employees Labor Relations Law, Title 26,
§961 et seq. (the "Act").  Specifically, the Union alleges that
the City's failure to honor the "evergreen clause" contained in
the agreed-upon negotiating ground rules constituted a failure to
bargain in good faith.  The City admits that their negotiator
signed ground rules containing an evergreen clause but argues
that the negotiator did not possess the authority to bind the
City to an extension of the agreement and that the Union was
notified as soon as the City learned of the error.
      
                       PROCEDURAL SUMMARY
      
     A prehearing conference was scheduled for November 19, 2010,
but was postponed at the joint request of the parties.  It was
eventually rescheduled for March 8, 2011, and was presided over
by Board Chair David C. Elliott.  The Prehearing Order issued on
March 15, 2011, identified the parties' exhibits and witnesses,
potential stipulations, and the expected duration of the hearing. 
The Prehearing Order also required the Complainant to submit an

[end of page 1]

offer of proof to support its request to present evidence of
alleged acts of bad faith by the City during previous
negotiations, something that was not mentioned in the Complaint
itself.  After reviewing the offer of proof and the Respondent's
reply, the Prehearing Officer issued a "Prehearing Order on
Proposed Testimony" on April 29, 2011, in which the Complainant's
request to offer evidence of the City's conduct in prior
negotiating sessions was denied, but evidence of the authority of
the City's negotiator in previous years was permitted.  
 
     The evidentiary hearing was held on May 11, 2011, and was
expected to last one day.  Board Chair David C. Elliott, Esq.,
presided, with Employer Representative Patricia M. Dunn, Esq.,
and Employee Representative Carol B. Gilmore also serving on the
Board.  At the start of the hearing, the Complainant indicated an
intent to call various witnesses to testify on matters related to
the City's unilateral changes to three mandatory subjects of
bargaining that were covered by the expired collective bargaining
agreement.  The City objected to the expanded focus of the
hearing because the allegations in the Complaint concerned only
the evergreen clause in the ground rules and did not relate to
unilateral changes made after the expiration of the collective
bargaining agreement.  The City argued they did not have the
notice necessary to prepare a proper defense.  The parties noted
that grievances had been filed on these issues and they had
previously agreed to hold them in abeyance pending the resolution
of the prohibited practice complaint.  After considering the
parties' arguments, the Board decided to proceed with the hearing
on the Complaint as presented, that is, the evidence related to
the failure to comply with the evergreen clause, and revisit the
unilateral change issues at the end of hearing the testimony.

[end of page 2]

     Once the parties had presented their evidence regarding the
original prohibited practice complaint, the parties again stated
their positions on whether it was appropriate to allow additional
testimony on the City's alleged failure to maintain the level of
benefits provided in the expired contract.  After some discussion
about the different options available to the Board and the
potential relevance of 26 M.R.S.A. §964-A(2), the parties agreed
to brief the issue.  The Complainant's brief would identify the
three unilateral changes the City allegedly made and would
present legal arguments on how the alleged unilateral changes
were relevant to the present complaint.  The City would be able
to file a responsive brief.  The Board would then determine if an
additional day of hearing should be scheduled, and, if not, what
the next step should be.
      
     In the Interim Order dated August 9, 2011, the Board
concluded that testimony concerning the alleged unilateral
changes made by the City was not appropriate because the matter
was not relevant to the allegations in the complaint.  The Board
also addressed 26 M.R.S.A. §964-A(2), which continues a
collective bargaining agreement's grievance arbitration provision
after the expiration of the agreement for certain matters.  The
Board concluded that §964-A(2) expressly obligates the Board to
determine which provisions are subject to post-expiration
arbitration.  As a result, the Board ordered the parties to
submit written argument on two issues:  the merits of the
prohibited practice complaint heard on May 11, 2011, and the
question of whether the three issues identified are enforceable
under §964-A(2), that is, "enforceable by virtue of the static
status quo doctrine."  The City filed a Motion to Reconsider that
Order, which was denied on September 13, 2011.  The parties
agreed upon a revised briefing schedule and both briefs were
filed with the Board by October 17, 2011.

[end of page 3]

     Between the issuance of the September 13, 2011, Order and
the deliberation of this case, Board Chair David C. Elliott's
term expired.  Barbara L. Raimondi, Esq., was appointed to take
over and was provided with the record and a copy of the tran-

script to read before the deliberation.  The other two members of
the Board, Patricia M. Dunn and Carol M. Gilmore, joined Chair
Raimondi to deliberate this matter on November 9, 2011.     
      
     The merits of the prohibited practice complaint and the
Board's determination of whether particular issues must be
maintained pursuant to the status quo doctrine are distinct legal
issues for which the Board has different sources of statutory
authority.  Consequently, we will be issuing two separate
decisions.  This decision addresses the prohibited practice
complaint pursuant to the authority granted to the Board in
§968(5)(A)-(C).  A companion decision regarding status quo
determinations will be issued under the authority granted to the
Board in §964-A(2). 
                                   
                          JURISDICTION
      
     The City of Augusta is the public employer within the
meaning of 26 M.R.S.A. § 962(7), and IAFF Local 1650, Augusta
Fire Fighters is the bargaining agent within the meaning of 26
M.R.S.A. §962(2) for employees in the Augusta Fire Department. 
The jurisdiction of the Board to hear this case and to render a
decision and order lies in 26 M.R.S.A. §968(5)(A)-(C). 

                        FACTUAL FINDINGS
  
     1.  The Complainant is the bargaining agent for two
bargaining units in the City of Augusta Fire Department, one unit
of uniformed firefighters (Local 1650) and one unit of battalion 

[end of page 4]

chiefs (Local 1650A).  The duration of the most recent collective
bargaining agreements for the two units was six months, from
January 1, 2010, to June 30, 2010.  The prior  collective
bargaining agreements had expired on December 31, 2009.  Although
the Union would have preferred to negotiate a one-year extension
to take them to the end of 2010, the City wanted all of its
bargaining agreements to terminate at the same time, which was
the end of June. 
      
     2.  Sometime in January of 2010, the Union contacted the
City in an effort to make an early start to negotiating 
successor contracts.  The Union offered several dates on which to
negotiate, but they were all rejected by the City.
           
     3.  The Augusta City Manager presented his proposed budget
for 2010/2011 in an executive session of the Augusta City Council
on March 18, 2010.  After noting the reductions made in the prior
budget, the "budget message" stated:         
                                             
     . . .[The budget] continues to require that City
     employees (with the exception of uniform police and
     fire personnel) incur eight "shut down" days and it
     makes no provision for cost-of-living or step increases
     for the workforce (all of our collective bargaining
     agreements expire this June 30th so there is no breach
     of contractual commitments understanding that we will
     nonetheless honor our statutory obligation to bargain
     in "good faith" and address any financial implications
     of that as they may arise).
  
     Exhibit R-6 at p. v.[fn]1
               
     4.  The City's Finance Director testified that the City
Manager's budget included a zero wage increase and freezing of 

     1  The City Manager's "Budget Message", presented by the City as
exhibit R-6, is an 11-page verbal description of the budget, but it is
not a financial document.  Neither party offered as evidence the
actual budget that was adopted by the City.

[end of page 5]  

step increases, but that in all the other respects the budget did
not assume any change to the status quo.  During the March
executive session, the City Council discussed the potential
impact of the City's obligation to maintain the status quo if the
collective bargaining agreements expired, but no consensus was
reached on the extent of this obligation.
      
     5.  On April 13, 2010, the City held a "pre-negotiations
meeting," during which the City Manager and the City's Finance
Director met with bargaining team members from the various unions
representing City employees, including members of the fire
department.  Copies of the budget message of March 18, 2010, were
distributed.  The City Manager and Finance Director outlined the
unfunded liabilities that the City was facing and various items
like increases in pension costs, bonded debt for pension obliga-

tions, retiree health insurance and active health insurance.  The
purpose of this meeting was to advise the unions that the
financial situation was serious and there would be difficult
times ahead.  There was no discussion at this meeting about the
status quo to be maintained if any of the collective bargaining
agreements expired without a successor agreement in place.
  
     6.  Dave Barrett is the Director of Personnel Services and
Labor Relations at the Maine Municipal Association.  Mr. Barrett
has represented the City at the bargaining table with their
various bargaining units for at least 10 years.  During that
period, he has signed ground rules on behalf of the City that are
the same as the ground rules in this case.  In addition, during
that period he has had the authority to sign tentative agreements
and present the agreements to the City Council. 
      
     7.  Mr. Barrett met with the City Manager, the Finance
Director and the Human Resources Director on May 18, 2010, for 

[end of page 6]

guidance on what they and the City Council had determined to be
the City's range of options at the bargaining table.  Mr. Barrett
received the same financial document (the budget message) that
had been distributed at the "pre-negotiations" meeting in April. 
He and the city managers discussed how the financial situation
was going to impact bargaining for a successor agreement.  There
was no discussion about the evergreen clause nor was there any
specific discussion about the scope of the status quo.  The
guidelines for the first year of the contract were a zero percent
wage increase and freezing all longevity steps.  
      
     8.  The first negotiating session occurred on June 10, 2010,
and was attended by Brian Chamberlain, the Union President, the
Fire Fighters negotiating team, and for the City, Mr. Barrett,
the City's Human Resources Director, and the City's Finance
Director.  At this first meeting, the ground rules were signed by
Mr. Chamberlain and Mr. Barrett on behalf of their respective
bargaining teams.  They did not discuss each ground rule, but
agreed that the ground rules they were signing were essentially
the same ground rules that they had signed in previous bargaining 
sessions.  During this first meeting, the parties discussed how
negotiations were going to proceed from that point forward.   
      
     9.  The ground rules consisted of eight numbered items
covering such matters as confidentiality, authority to make and
amend tentative agreements, scheduling, and the time frame for
presenting proposals.  Rule number 8, referred to by the parties
as the "evergreen clause," states:
      
     In the event that collective bargaining shall not have
     been successfully completed prior to the expiration of
     the current agreement the parties hereto agree that
     said agreement will remain in full force and effect
     until a successor agreement has been negotiated.


[end of page 7]
     
     10.  Mr. Barrett testified that he signed the ground rules
without really considering the impact of this evergreen clause on
the City's situation. 
      
     11. The second negotiating session occurred on June 30,
2010.  The meeting started with the City's proposal to reduce the
benefit for retiree health insurance from the City paying 100% of
the cost for the retiree to an 80/20 split between the City and
the employee.  The City realized that some employees were close
to retirement, so they offered a 30-day extension to allow those
individuals to retire and still retain the 100% coverage.  The
Union's chief negotiator pointed out to the City that the
evergreen clause in the ground rules would preclude the City from
making such a change.  The City's negotiating team caucused and,
upon return, agreed that the evergreen clause was "in play" and
said they were withdrawing their 30-day extension of the
retirement health benefit.
      
     12.  Although Mr. Barrett testified that the City
"deliberately limited its proposal to some big ticket financial
items:  overtime, active health insurance contributions and the
retiree health issue," there was no testimony as to whether other
matters beside the retiree health insurance were discussed at the
June 30, 2010, negotiating session. 
     
     13.  After the session ended, the City's negotiating team
went to the City Manager's office and explained the situation. 
The City Manager asked Mr. Barrett to be available the next night
for an executive session of the City Council. 
      
     14.  The following day, William Bridgeo, the City Manager,
played golf with the City's attorney and told him that the City
had mistakenly agreed to an evergreen clause in the ground rules
that had been signed earlier in June.  The City's attorney stated 

[end of page 8]

that he did not believe that the City's negotiator had the
authority to sign an evergreen clause.
  
     15.  On the evening of July 1, 2010, the City Council met in
executive session and discussed the issue of the evergreen clause
in the ground rules.  The City's attorney stated his opinion that
a vote of the City Council was necessary to make an evergreen
clause effective.  At this meeting, the City Council made it
clear that the negotiator did not have the authority to extend
the agreement and that the "static status quo" would be
implemented, as advised by the City attorney.  The City Council
directed the City Manager and the Finance Manager to communicate
that position to the Union.  
 
     16.  A letter dated July 9, 2010, from William R. Bridgeo,
the City Manager, to Brian Chamberlin, Local 1650 President,
stated, in full:
     
     As you are aware, the collective bargaining agreement
     between the Local 1650 and the City of Augusta expired
     on June 30, 2010.  Pursuant to Maine law, certain
     aspects of the collective bargaining agreement continue
     in place pursuant to the doctrine of status quo.  Our
     research shows that status quo means that employees
     will continue to be paid pursuant to the terms existing
     as of June 30, 2010.  Employees will not be eligible
     for increases in pay or benefits such as step
     increases, increases in longevity pay, increases in pay
     due to obtaining professional status or qualification,
     or increased benefits due to longevity, such as
     additional vacation for reaching 20 years or the like. 
     Additionally, pursuant to law, the obligations
     addressing retiree health benefits that existed in
     those expired agreements have also expired.  All other
     pay and benefits which are included as part of the
     salary package will continue to be paid pursuant to the
     expired collective bargaining agreement.
     If your understanding with respect to the current
     situation is different, please notify me as soon as
     possible.


[end of page 9]

     17.  The July 9, 2010, letter was mailed to the Union's post
office box, but no one in the Union had retrieved the mail from
the box prior to the next meeting on July 21, 2010.  The Union
President stated that they had never previously received this
kind of mail through the Union's post office box.  He testified
that it had been their experience that the City would call them
or somehow notify them if there was significant mail that they
should come by and pick up. 
      
     18.  In a memo to the Mayor and City Council dated July 10,
2010, the City Manager outlined various staffing matters and
described the bargaining situation with:
  
          The budget adopted for 2010/2011 contained no
     provision for wage or step increases [as] well as the
     need for concessions on benefit payments from the
     unions.  All of our union contracts expired on June
     30th and, based on advice from the City Attorney, I
     have notified the representatives of the affected
     bargaining units that to the extent permitted by state
     law, the City has frozen compensation and benefit
     payments consistent with your budget parameters.  I do
     not expect that this will be well received, but I see
     no choice absent proper financial authorization (which
     would need to have been in the budget appropriation)
     from you.

          We are, of course, bargaining in good faith
     despite our financial constraints.  We have explained
     to the workforce and their representatives the City's
     financial dilemma especially the heavy current and
     future costs that just honoring pre-existing
     contractual commitments for pension payments and
     retiree and active health insurance payments requires
     (on the order of the equivalent of a 2% - 3% tax
     increase in each of the next eight years). . . . As
     things develop in negotiations, I will brief you in
     executive session and seek your guidance.
     
          These are difficult times for all parties.  On the
     negotiations front, I expect that we will soon want to
     seek the assistance of dispute resolution
     professionals.  Our employees and their professional 


[end of page 10]

     representatives have been patient and civil in our
     meetings and I expect that to continue. 
     
     19. The parties stipulated that during the previous ten
years, "the City had maintained a dynamic status quo whenever an
agreement expired prior to the conclusion of negotiations for a
successor agreement."  Mr. Barrett testified that it was his
understanding that 2010 was the first time that step increases
had not been continued after the expiration of an agreement.
      
     20.  The third negotiating meeting occurred on July 21,
2010.  It was at this time that the Union first saw the City's
letter of July 9, 2010, and learned that the City had adopted
what the City considered to be the static status quo. 
      
     21.  The letter dated July 21, 2010, from the Acting City
Manager to the Union President explained the City's position on
the evergreen clause.  The letter states, in full:
       
     As stated in the city manager's July 9 letter to you,
     the City's position is that since the collective
     bargaining agreements between Local 1650 and Local
     1650A and the City have expired, certain aspects of the
     CBA cease with the expiration of the contract.  These
     include increases in pay or benefits above what
     employees currently receive.  Additionally, pursuant to
     the law, the obligations addressing retiree health
     benefits that existed in those expired agreements have
     also expired. 

     You have asserted that since the City's bargaining team
     signed ground rules which contained an 'evergreen'
     clause, this obligates the City to continue all terms
     of the expired agreement until a successor agreement is
     reached.  The bargaining team is authorized to enter
     into ground rules and bargain collectively for the
     purposes of reaching a tentative agreement to be
     submitted to City Council for ratification.  However,
     it is the City's position that agreeing to the
     evergreen clause in the ground rules exceeded the
     authority of the bargaining team and that the decision 


[end of page 11]

     to extend the contract past its expiration is a
     decision that can only be made by a vote of the City
     Council.  Therefore, the City considers the ground
     rules in effect with the exception of that one
     provision.  The City has been, and will continue, to
     bargain in good faith.

      
     22.  On September 2, 2010, the City Council voted to allow
the City Manager to execute an agreement with the Fire Fighters
Local 1650 with respect to retiree health insurance.  The Union
obtained the approval of its membership as well.  The following
Agreement on retiree health was executed on September 7, 2010:
       
          The provisions of Section 3 (Retirement Health) of
     Article 12 (Insurance Benefits) of the Contract shall
     be deemed to be in full force and effect from the date
     set forth below through to the end of the day on
     Thursday, 30 September 2010.
          This agreement is without prejudice to the
     position of either party concerning the enforceability
     of the Ground Rules signed on June 10, 2010 and shall
     not in any way, other than as specifically set forth
     herein, add to, reduce, or alter the contractual or
     legal rights of the City of Augusta and of Local 1650
     arising out of the Contract or out of negotiations for
     a successor collective bargaining agreement.
      
       
     23.  The City maintains an unappropriated fund balance that
could be tapped to finance items that exceed the initial budget. 
The City Charter indicates that the fund balance should be
maintained at 8.33%.  As of June 30, 2010, that fund balance was
9.5%.  The City Finance Director testified that there is nothing
to prevent the negotiating team from making an agreement that
differs from the assumptions used in formulating the budget,
although the City Council would have to approve the transfer of
funds if such an agreement were ratified. 
      
     24.  Article 25 of the expired collective bargaining
agreement, entitled "Acknowledgment," states in full:

[end of page 12]
 
     Both parties to this Agreement, the Union and the City,
     will acknowledge in writing, any written correspondence
     requesting acknowledgment within ten (10) days from the
     date of such correspondence being received.
      
     Correspondence to the Union shall be addressed to the
     Union President at a mailing address furnished to the
     City.  Correspondence to the City shall be addressed to
     the City Manager at City Center. It shall be the
     responsibility of the Union to notify in writing, by
     certified mail, the name of the President and the
     tenure of office.  
                              
 

                          DISCUSSION 
                                
     The question before us is whether the failure to comply with
the evergreen clause contained in the ground rules constitutes a
violation of the duty to bargain in good faith.  We will first
address the duty to bargain and in what circumstances a violation
of a ground rule might constitute a breach of that duty in
violation of §964(1)(E).  We will then consider the nature of an
evergreen clause and whether the evergreen clause in this
particular case is enforceable. 
      
     Our well-established standard for considering whether a
party's conduct constitutes bad faith bargaining is:
      
     A bad faith bargaining charge requires that we examine
     the totality of the charged party's conduct and decide
     whether the party's actions during negotiations
     indicate "a present intention to find a basis for
     agreement." NLRB v. Montgomery Ward & Co., 133 F.2d
     676, 686 (9th Cir. 1943); see also Caribou School
     Department v. Caribou Teachers Association, 402 A.2d 
	 1279, 1282-1283 (Me. 1979). Among the factors which we
     typically look to in making our determination are
     whether the charged party met and negotiated with the
     other party at reasonable times, observed the
     groundrules, offered counter-proposals, made
     compromises, accepted the other party's positions, put 


[end of page 13]

     tentative agreements in writing, and participated in
     the dispute resolution procedures. See, e.g., Fox
     Island Teachers Association v. MSAD #8 Board of
     Directors, MLRB No. 81-28 (April 22, 1981); Sanford
     Highway Unit v. Town of Sanford, MLRB No. 79-50 (April
     5, 1979). When a party's conduct evinces a sincere
     desire to reach an agreement, the party has not
     bargained in bad faith in violation of 26 M.R.S.A. §
     964(1)(E) unless its conduct fails to meet the minimum
     statutory obligations or constitutes an outright
     refusal to bargain.

Waterville Teachers Assoc. v. Waterville Board of Education, No.
82-11 at 4 (Feb. 4, 1982).    
  
     Negotiating ground rules have never been held to be a
mandatory subject of bargaining, but the Board continues to
encourage parties to have written ground rules to govern the
conduct of negotiations.  See Town of Orono v. IAFF Local 3106,
No. 11-11 at 9 (August 11, 2011).  Ground rules are a set of
agreed-upon rules to govern the mechanics of negotiations.  The
purpose of ground rules is to smooth the process of negotiating,
thereby improving the chances of the parties ultimately reaching
an agreement.  Subjects covered in ground rules are typically the
manner of scheduling the time and place for negotiating sessions,
the composition of bargaining teams, the timing of presentation
of bargaining proposals, confidentiality issues and dealings with
the press, negotiators' authority to sign tentative agreements,
and the reservation of the right to ratify the full agreement. 
      
     Nearly thirty years ago, the Board stated, "[c]ontravention
of a negotiating ground rule, while not constituting a per se
violation of the Act, has been held to be evidence of breach of
the duty to bargain in good faith."  Teamsters v. Town of Bar
Harbor, No. 82-35 at 9 (Nov. 2, 1982), citing Caribou School
Dep't v. Caribou Teachers Assoc., 402 A.2d 1279, 1282-1283
(1979).  As the standard for determining bad-faith bargaining 

[end of page 14]

recited above indicates, violating a ground rule is not a per se
violation because it is not a failure to meet any of the minimum
statutory requirements nor is it an outright refusal to bargain.
Waterville Teachers Assoc., No. 82-11 at 4.
                
     Over the years, the Board has issued a number of decisions
in which the failure to abide by a ground rule was one factor in
determining that a party had failed to bargain in good faith. 
Sanford Fire Fighters Assoc. v. Sanford Fire Commission, No. 79-62
 (Dec. 5, 1979); Teamsters v. Town of Bar Harbor, No. 82-35;
Kittery Employees Assoc. v. Eric Strahl, Kittery Town Manager,
No. 86-23 (Jan. 27, 1987).  More recently, the Board issued two
decisions which address the question of whether a violation of a
ground rule could, by itself, constitute a failure to bargain in
good faith.  Town of Orono v. IAFF Local 3106, No. 11-11 (August
11, 2011) and Massabesic Education Assoc. v. RSU #57 Board of
Directors, No. 11-17 (Nov. 10, 2011).  Both cases involved
conduct that violated a ground rule prohibiting the disclosure of
the substance of negotiation sessions.  In both of these cases,
the Board looked at the totality of the circumstances to
determine whether the breach of the ground rule that occurred was
of sufficient magnitude to constitute a violation of the duty to
bargain in good faith.  In the Orono case, the disruptive intent
and the egregiousness of the breach was such that the Board found
a violation of the duty to bargain; in the Massabesic case, the
Board held that the breach was a minor technical violation of the
ground rule and there was no basis for finding a breach of the
duty to bargain.
      
     In this case, there is no dispute that the ground rules,
including an evergreen clause, were signed and that a similar set
of ground rules had been signed for ten years.  There is also no
dispute that the City essentially reneged on that evergreen 

[end of page 15]

agreement when it became apparent that it was inconsistent with
the City's expectation of the bargaining process and their
understanding of their legal obligations.  There is no question
that the City's turnabout on what had been agreed to was a
significant change in the dynamics of the negotiating process, as
was the case in Orono.  The legal impact of the change, however,
is a function of the fundamental difference between this ground
rule and what is typically included in procedural ground rules
governing negotiations.
  
     An evergreen clause is an agreement to continue the terms of
a collective bargaining agreement until a specified date or until
a specified event has occurred.  An evergreen clause establishes
the terms and conditions of employment to the same extent as the
collective bargaining agreement that is being extended.  NCEU v.
York County, No. 11-07 at 8 (May 17, 2011).  When an evergreen
clause is included as a provision of the collective bargaining
agreement, the evergreen clause is agreed to and ratified as part
of the collective bargaining agreement.[fn]2 

     The Union argues that even though neither the City nor the
Union actually ratified the evergreen clause in the ground rules,
the City's conduct over the past ten years is equivalent to
implied ratification.  The Union points to the fact that the same
ground rule had been agreed to for 10 years, without any 


     2 Indeed, the prior collective bargaining agreements between
these parties contain an evergreen clause within the article
establishing the contract's term:
     Article 40, Term of Contract
     This Agreement shall be effective upon execution and shall
     remain in full force and in effect until June 30, 2010.  The
     Contract shall be automatically renewed for succeeding one-
     year periods unless either party shall notify the other to
     renegotiate at least 60 days prior to June 30, 2010.
     (Uniformed Firefighters contract)

[end of page 16]

objection by the City.  Therefore, the Union argues, it was led
to believe that the negotiator had the authority to bind the City
by signing such a ground rule.  Without more, this is not
sufficient to support a conclusion that the negotiator had the
actual or implied authority to bind the City to a continuation of
the terms of the expired collective bargaining agreement.  We
have previously held that a negotiator's apparent authority alone
is insufficient if the actual authority does not exist in fact. 
AFUM v. University of Maine, No. 79-55 at 3 (June 14, 1979).   We
are unwilling to find that a public employer had unwittingly
delegated its right to contract by implication.   
      
     Our analysis might have been different if the City's
negotiator had possessed the authority to bind the City to a
contract in the past and the evidence clearly demonstrated either
the grant of that authority or the exercise of it.  Here,
however, there is no evidence that the City's negotiator had the
authority to bind the City to a continuation of the terms of the
expired collective bargaining agreement.  Although there is a
stipulation that the City "maintained a dynamic status quo"
following the expiration of agreements in the past, there is no
elaboration on what that statement meant to the parties or the
actual effect of a dynamic status quo.  The only testimony on
this history is that step increases were continued after
expiration of agreements in the past.  That fact says nothing
about the authority of the negotiator.  It is conjecture to
assume that the City continued step payments only because it
considered itself bound by the ground rules signed by the
negotiator.  There are other valid reasons for continuing step
increases during the hiatus between contracts, not the least of
which is a goal of maintaining a compensation system that can be
effective for recruitment and retention of employees.  We are
unwilling to infer the existence of a negotiator's authority to 

[end of page 17]

bind the City on the basis of such limited and imprecise
evidence.
      
     Furthermore, it is particularly difficult to assume that a
negotiator had the authority to bind the City to an extension of
the collective bargaining agreement where the ground rules
themselves make it abundantly clear that the negotiators only had
the authority to sign tentative agreements.  Ground rule #2 says:
     
     The signing of these rules attests that: The
     negotiators have the guidelines and authority to reach
     a final tentative agreement and that the principal
     parties reserve the right to ratify the total package
     reached at the bargaining table.

Furthermore, Ground rules #6 and #7 both reaffirm this
ratification requirement:
     
     6.  If a total package is agreed to at the table, the
     negotiating teams agree to recommend and advocate
     ratification of the total package to their respective
     principals.

     7.  If either party's principals reject a total
     package, each party retains the right to open previous
     tentative agreements in order to reestablish a balance
     of interests, subject to the obligation to bargain in
     good faith.
     
     The duty to bargain requires a party's negotiator to have
the knowledge and guidelines from the principal and the authority
to sign tentative agreements.  Fox Island Teachers Assoc. v. MSAD
#8 Board of Educ., No. 81-28 at 6 fn. 1 (April 22, 1981).  In
public sector bargaining in Maine, unlike what might be found in
the private sector, ratification by the principal is the norm. 
The Board considers the right to ratify of particular importance
and it is not something that can be diminished by administrative
fiat.  "Once a principal party has reserved the right to ratify,
any agreement reached by the negotiators will not be concluded or 


[end of page 18]


binding until it is ratified by the principal."  Kittery
Employees v. Strahl, No. 86-23 at 13, citing Fox Island Teachers
Ass'n, No. 81-28, at 6. See also Teamsters v. Town of Lincoln,
No. 91-07 at 6 (Dec. 28, 1990).
     
     The internal inconsistency in the ground rules puts the
clear and unequivocal reservation of the right to ratify,
reaffirmed in two other ground rules, at direct odds with another
ground rule purporting to be an evergreen clause.  The
substantial effect of an evergreen clause is to maintain the
wages, hours, and working conditions of unit employees to the
extent they were established in the expiring agreement.  Thus, by
the terms of the ground rules themselves, the evergreen clause
would need to be ratified by the principals.  
  
     The source of the problem is, of course, that an evergreen
clause is really not an appropriate subject for ground rules
because it establishes substantive terms, not procedural issues. 
To illustrate, if a ground rule stated, "Each employee with
perfect attendance during the month of November will receive a
$100 bonus," that rule would not be enforceable simply because it
was signed by the parties' negotiators.  No one would question
that such provision must be approved by the principals in
whatever ratification process has been established for collective
bargaining agreements.  
 
     The Union also argues that the City's behavior in failing to
notify the Union immediately that it was changing the authority
of the negotiator should preclude the City from challenging the
content of the ground rules.  The Union points out that this
Board has held that a change in the negotiator's authority
"requires actual or constructive notification before it becomes
effective," citing MSAD No. 38 Board of Directors v. MSAD No. 38 

[end of page 19]

Teachers Ass'n, No. 76-20 (July 23, 1976).  We agree that the
City's failure to be forthcoming about its change in position on
the evergreen clause was unprofessional and made a bad situation
worse.  At a minimum, when the City mailed the July 9, 2010,
letter, it should have requested that the Union acknowledge
receipt of the letter, as the procedure in Article 25 of the
expired agreement suggests.  Of course, it would also have been
helpful if the Union had informed the City of the appropriate
address to use for written communication, also covered by that
same provision.  A phone call or face-to-face conversation would
have been even more effective.  In any event, it would be beyond
our remedial powers to impose an evergreen clause on the City due
to its conduct in communicating its changed position on the
evergreen clause.             

          
     For the foregoing reasons, we conclude that the evergreen
clause approved as part of the negotiating ground rules is not
enforceable because the negotiator's approval of the ground rules
was not the ratification required by the City.   The evidence
does not support the Complainant's allegation that the City
failed to bargain in good faith, in violation of §964(1)(E).
               
                                             
[end of page 20]
     

                             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 26 M.R.S.A. Section 968(5), it
is ORDERED that the IAFF Local 1650 Augusta Fire Fighters
prohibited practices complaint in this case is DISMISSED.   
     

Dated at Augusta, Maine, this 15th day of December, 2011.   


 

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