Affirmed, Dec. 5, 2017, Kennebec Superior Court, Docket No. AP-17-12 (Murphy, J.).

 

	  
	 The Eliot Police Association ("Union" or "Association") filed 
this prohibited practice complaint on February 22, 2016, against 
the Town of Eliot, alleging that the Town violated 26 MRSA
§964(1) (E) of the Municipal Public Employee Labor Relations Law 
("Act").  Specifically, the Complaint alleges that the Town failed 
to bargain in good faith by raising new issues at the bargaining 
table after the third negotiating session in violation of the 
parties' bargaining ground rules.

     The Board held an evidentiary hearing on November 22, 2016. 
Daniel R. Felkel, Esq., represented the Eliot Police Association 
and Ann M. Freeman, Esq., represented the Town of Eliot.	
Both parties were able to examine and cross-examine witnesses, offer 
documentary evidence at the hearing, and submit written argument. 
Chair Jeffry J. Knuckles presided at the hearing, with Employer 
Representative Richard L. Hornbeck and Employee Representative 
Amie M. Parker.	The parties' post-hearing briefs were both filed 
by December 23, 2016, and the Board deliberated this matter on 
January 17, 2017.


[end of page 1]

       
                            JURISDICTION

     The Eliot Police Association is a bargaining agent within the 
meaning of 26 MRSA §962(2), and the Town of Eliot is the public 
employer within the meaning of 26 MRSA §962(7).	The jurisdiction 
of the Board to hear this case and to render a decision and order 
lies in 26 MRSA §968(5).

                         FINDINGS OF FACTS

 1.  The Eliot Police Association and the Town of Eliot are parties 
     to a collective bargaining agreement for the Police Department 
     which expired on July 1, 2015.

 2.  The parties had their first negotiation session for a successor 
     agreement on February 13, 2015.  At this meeting, the Union 's 
     lead negotiator, Mr. Daniel Felkel, offered a set of proposed 
     negotiating ground rules for the parties to adopt.

 3.  Mr. Dana Lee, the Town Manager, was the lead negotiator for the 
     Town.  The other members of the Town's negotiating team were 
     the Chief of Police and two members of the Board, Mr. Roland 
     Fernald and Mr. Grant Hirst.

 4.  In addition to Mr. Felkel, the Association's negotiating team 
     included Officer Brian Delaney and Officer Michael Grogan.

 5.  The ground rules were signed on February 13, 2015, by
     Mr. Felkel for the Association and by Mr. Lee for the Town .
     The ground rules covered such topics as timing and frequency of 
     negotiating sessions, confidentiality, bargaining authority, 
     and a requirement that both sides ratify any agreement reached 
     by the bargaining teams.  In addition, paragraph 6 of the 
     ground rules stated:

          No new proposals may be added to the package 
          after the third negotiation session, unless


[end of page 2]


          agreed to by the parties.


 6.  The parties met several times during March, April and May of 
     2015.  By the beginning of June, the parties had reached a 
     tentative agreement on the terms of their successor collective 
     bargaining agreement.  Pursuant to the parties' ground rules, 
     ratification by both sides was necessary for the agreement to 
     become effective.

 7.  The Association ratified the tentative agreement soon after 
     June 1, 2015.

 8.  Mr. Fernald and Mr. Hirst were members of the Town's 
     negotiating team through June when the parties reached their 
     tentative agreement.

     Sometime in June of 2015, the Town's annual election was held, 
     with two open seats on the Select Board.  Mr. Hirst lost his 
     bid to be re-elected and his seat was won by Mr. Pomerleau.
     Mr. Beckert was re-elected to the other open seat.

 9.  Mr. Pomerleau ran on a platform focussed on ensuring that 
     everyone's taxpayer dollars were wisely spent.

10.  Once elected, Mr. Pomerleau took Mr. Hirst's place on the 
     Town's negotiating committee.

11.  On July 9, 2015, the Board of Selectmen met in executive 
     session to have the details of the tentative agreement 
     explained to them.	Mr. Pomerleau, as a new Board member, and 
     Board Member Davis were concerned that they had not been
     briefed sufficiently on the substance of negotiations.  Present 
     at the July 9, 2015, meeting of the Select Board was Town 
     Manager Dana Lee, and Board Members Robert Pomerleau, Rebecca 
     Davis, Roland Fernald, Steve Beckert and Jack Murphy.

12.  As a result of this meeting in executive session on July 9,


[end of page 3]


     2015, the Board voted "that MAP Bargaining Unit be asked back 
     to the negotiating table to further review some of the contract 
     provisions."

13.  The Town Manager summarized the concerns and questions raised 
     during the July 9, 2015, meeting in a document titled "Concerns 
     about Ratification of CBA."  The document consisted of 15 
     concerns, listed by the proposed agreement's article and
     section number.  The introductory line stated, "There were some 
     questions and some objections to the draft contract, and I 
     would ask the union to meet to go over them to avoid a 
     potentially adverse vote by the Board of Selectmen."  Many of 
     the questions related to proposed changes to wages, benefits or 
     contractual language, but some related to articles in the
     proposed agreement that were unchanged from the prior agreement.

14.  The Town Manager provided the document to the Association's 
     attorney, who inserted his responses and explanations in 
     underlined text.  The Association's attorney included in his 
     written response an objection to the Town "seeking to introduce 
     completely new topics that were never discussed before at 
     negotiations," in violation of the ground rules.

15.  The parties met on July 29, 2016, to discuss these concerns.
     The discussions were mostly each party explaining its positions 
     and rationales to the other, and there was little that could be 
     considered negotiation. The Association repeated its assertion 
     that the Employer's proposals were in violation of ground rule
     #6.  The Association requested that the Town's negotiating team 
     take the tentative agreement back to the full Select Board for    
     a ratification vote.

16.  The Board of Selectmen unanimously rejected the proposed 
     agreement on August 13, 2015, and voted to ask the Association


[end of page 4]

 
     to return to the bargaining table.

17.  After the Board rejected the proposed agreement, Mr. Fernald 
     asked to be relieved of his duties on the negotiating team. 
     He was replaced by Ms. Davis.

18.  Sometime in September, 2015, the Town Manager met with the 
     Town's negotiating team and suggested that they reduce the 
     concerns listed in the document provided to the Union in July 
     to those issues that were particularly important to them.	As a 
     result, the two most important issues were identified as "Art 
     9, § 1: Wages and COLA increases," and "Article 20, 29, 30 &
     Related: Rate of Time Off Earned."

19.  The parties met a couple of times to try to negotiate over the 
     articles that were of the greatest concern to the employer, but 
     made no progress.  The Association continued to assert that the 
     Town was raising new issues that were not allowed by paragraph
     6 of the negotiating ground rules.

20.  The parties met for mediation in late 2015.  The Association 
     continued to object to the introduction of new issues based on 
     its contention that the ground rules were still in effect.
     The parties did discuss the possibility of reducing the term of 
     the contract from three years to two in order to make the 
     compensation changes more acceptable, but they were unable to 
     resolve their differences.

21.  On July 6, 2016, the parties filed a "Mutual Request to Waive 
     Fact Finding" with the Board's Executive Director.	 This is
     essentially a request to proceed directly to interest 
     arbitration, the final step of the impasse-resolution procedure 
     established by the Act.	A panel of the Board of Arbitration
     and Conciliation has been being selected for this purpose and


[end of page 5]


     a hearing is scheduled for February 27, 2017.[fn]1


                                 DISCUSSION

     In broad terms, the issue before the Board is the 
circumstances under which a violation of a ground rule can be 
considered a violation of the Act.  Specifically, the question 
presented is whether a negotiating ground rule that restricts the 
parties' ability to bring new issues to the negotiating table
after the third negotiation session can remain effective after the 
parties' tentative agreement is rejected in good faith.	The 
Complaint charges that the Town's insistence on bringing new
issues to the table violated the parties' ground rule and 
constituted a failure to bargain in good faith in violation of
§964 (1)(E).

     Determining whether a party has bargained in good faith 
requires consideration of many factors, of which adherence to 
ground rules is just one.  This Board' s established standard 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 ground-
     rules, offered counter-proposals, made compromises, 
     accepted the other party's positions, put 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

[fn]1  The Board has taken official notice of the status of this request in 
accordance with Title 5, §9058.  


[end of page 6]


     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).

     In many of this Board's cases involving a violation of a 
ground rule, the violation was merely one factor of many 
supporting the Board's conclusion that a party's overall conduct 
constituted bad faith bargaining.  For example, in Sanford Fire 
Fighters Assoc. v. Sanford Fire Commission, the employer 's 
categorical refusal to adopt ground rules was one of many other 
factors, including its take-it-or-leave-it proposal, indicating 
bad faith bargaining.  No. 79-62, at 7-8 (Dec. 5, 1979).  In 
Teamsters v. Town of Bar Harbor, the employer's refusal to comply 
with a ground rule requiring the reduction of tentative agreements 
to writing was evidence of bad faith, as was its unilateral 
rejection of several tentative agreements.  No. 82-35 at 9-10
(Nov. 2, 1982).	 In Caribou School Department, which the 
Complainant cites as supporting its position that a ground rule 
violation alone can constitute bad faith bargaining, the Board and 
the Law Court cited several factors beyond the ground rule 
violation in concluding that the Employer did not bargain in good 
faith.  In that case, the history of negotiating one-year 
agreements and the employer 's agreement to continue that practice 
led to the Board's conclusion that the employer 's last-minute 
attempt to change the duration of the agreement was a failure to 
bargain in good faith.  Caribou School Department v. Caribou 
Teachers Association and MLRB, 402 A.2d 1279, 1283 (1979).

     The Board has issued two decisions in which the complainant


[end of page 7]


alleged that violation of a ground rule alone constituted bad
faith bargaining.[fn]2  In both of those cases, the Board looked at the 
purpose of the ground rule and the circumstances of the breach as 
part of its analysis.	A review of these two cases is instructive.

     In Orono, the Town filed a complaint against the union 
charging that the union's disclosure of negotiating positions to 
the press violated the parties' confidentiality ground rule and 
constituted bad faith bargaining.  Town of Orono v.  IAFF Local 
3106, Orono Fire Fighters, No. 11-11 (Aug. 11, 2011).  The ground 
rule at issue required confidentiality of negotiations and 
prohibited any sort of press releases regarding bargaining.  Id. 
at 3.  The union president emailed the newspaper suggesting an 
article on the negotiations and specifying the positions of the 
parties on the three issues scheduled for fact finding.	The Board 
noted that the email was initiated and sent with the clear intent 
to disrupt the agreed-upon bargaining process and to use the press 
to bring public pressure on the employer to alter its bargaining 
position.  Id. at 12.  The Board concluded that the union 
president's actions violated the Act because they were a flagrant 
violation of the ground rule intended to substantially alter the 
nature of the bargaining process the parties had agreed upon.  Id.

     In its analysis, the Orono Board considered a ground rule 
concerning public disclosures of bargaining positions or tactics 
to be substantively different than other types of ground rules. 
The Board noted that parties' are free to negotiate a ground rule 
requiring strict confidentiality or one allowing full disclosure 
of the negotiating process.  The key is to stay within the agreed-


[fn]2  In a third case, a counterclaim alleged the union violated the Act by 
ignoring a ground rule that required 48 hours' notice to bring a 
consultant into negotiations.  The Board held such a breach of a ground 
rule did not constitute bad faith bargaining.  Fox Island Teachers Assoc. 
v. MSAD No. 8, No. 81-28 at 9-10 (April 22, 1981).


[end of page 8]


upon framework:

     . . . The important point is that the parties' 
     negotiations strategies and tactics may differ signifi-
     cantly depending on the nature of their agreement on 
     what, if any, information can be released as negotiation 
     progresses.  A rule limiting disclosure outside of 
     negotiations goes to the very heart of the bargaining 
     process. . . .  When both sides are proceeding from the
     start of bargaining on the assumption that the press will 
     not be part of the process, a sudden disclosure of the 
     type here can profoundly alter the dynamics of the 
     bargaining process.

Orono, No. 11-11 at 10, 11-12.

     In Massabesic, the two ground rule violations were not so 
egregious.  The union alleged that the school superintendent 
violated the ground rule on the confidentiality of negotiations 
when he presented information on the budget to the school board, 
as required by Maine's statutes governing the school budget
process.  Massabesic Education Assoc. v. RSU 57 Board of
Directors, No. 11-17 (Nov. 10, 2011).  An essential part of 
explaining the budget was the underlying assumption of flat 
funding for employee salaries.  Id. at 10.  The Board held that 
there was insufficient evidence to prove that the superintendent 
disclosed information obtained during negotiations in his 
presentation to the school board, thus the Board was unable to 
conclude a breach had occurred.  Id.

     A second alleged violation of the confidentialit y ground rule 
in Massabesic involved a grievance-related email sent by the 
superintendent to several people, including one person not on 
either negotiating team.  In that email, the superintendent 
disclosed the union's negotiation position on the particular issue 
involved in the pending grievance.  The Board held that this was a 
clear violation of the ground rule, but the disclosure was limited


[end of page 9]

      
and it was not sufficient to constitute a violation of the law by 
itself.	 Massabesic, No. 11-17 at 11.

     In the present case, the Complainant charges that the Town's 
violation of ground rule #6, which prohibited offering new 
proposals after the third negotiation session, was in itself a 
violation of §964(1) (E).  The proper analysis must start with the 
purpose of the ground rule at issue, and its role in furthering 
the collective bargaining process.  We will address merits of this 
charge at two distinct points in time:	before the Town rejected 
the tentative agreement and after rejection.

     Ground rules are a set of rules adopted by parties to govern 
the mechanics of negotiations.  The purpose of ground rules is to 
smooth the process of negotiating, with the goal of increasing the 
chances of the parties reaching an agreement.  Typically, ground 
rules cover the manner of scheduling negotiating sessions, the 
composition of bargaining teams, the timing of presentation of 
bargaining proposals, confidentiality issues, disclosures to the 
press, who has authority to speak for the bargaining team and sign 
tentative agreements, and the reservation of the right to ratify 
the full agreement.

     A ground rule limiting the time during which new proposals 
may be introduced, such as ground rule #6 in the current case, 
provides assurance to the parties that as they proceed through 
negotiations, their calculation of the balance they may achieve 
between gains and concessions will not be disrupted by the late 
addition of new issues.	The Law Court made this point in Caribou 
when it stated that "a delay in introducing a contract issue while 
the other party proceeds under the impression that the issue is 
settled is evidence of dilatory tactics and bad faith."	 Caribou 
School Department v. Caribou Teachers Assoc., 402 A.2d 1279, 1283


[end of page 10]

      
(Me. 1979).  Thus, it can be said that such a ground rule fosters 
collective bargaining by giving the parties the ability to focus 
exclusively on those issues that are on the table.  This 
facilitates productive bargaining and minimizes disruptions.

     In the present case, the record indicates that following the 
bargaining session at which the parties reached a tentative 
agreement, the Town's newly-constituted Select Board discussed the 
provisions and identified various concerns and questions they 
wanted to address with the Union.  These concerns were put in 
writing, the Union responded in writing, and the parties met to 
discuss these issues.	Each party explained its respective
position on each of the issues and the Union indicated that ground 
rule #6 prohibited the Town from bringing new issues in at that 
stage.	There is, however, no evidence that the Town insisted that 
these items be negotiated.  At this point, the discussion ended 
when the Union asked the Town's negotiating team to take it to the 
full Select Board for the ratification vote, which it did.  We do 
not consider this conduct to have violated the ground rule--the 
Town was raising concerns, not demanding that new issues be 
negotiated.

     Before proceeding, we note that the Complaint in this case 
alleges only that the Town failed to bargain in good faith by 
violating ground rule #6 of the parties' negotiating ground rules. 
We emphasize that, in most circumstances, rejection of a tentative 
agreement and the party's conduct thereafter must be examined 
carefully for evidence of bad faith.  The question presented to 
the Board here, however, is limited to the violation of one 
specific ground rule.

     A proper analysis of the conduct of the parties after the 
Town rejected the tentative agreement must take into account the


[end of page 11]

      
effect of the continued operation of ground rule #6.  As noted 
above, the purpose of ground rule #6 was to facilitate collective 
bargaining.  While such a ground rule has a salutary effect during 
the negotiating process, once one of the parties has rejected a 
tentative agreement in good faith, the impact of restricting the 
issues that can be negotiated only serves to impede the bargaining 
process.  Here, the Select Board's good-faith rejection of the 
tentative agreement is a fundamental statement signaling a need
for the parties to be open and able to consider alternatives. 
The continued imposition of ground rule #6 will impede, not 
foster, productive bargaining.  We conclude that in order to 
enable fruitful bargaining after rejection of a tentative agree-
ment, all issues that were on the table as well as those that 
formed the basis of the good-faith rejection of the tentative 
agreement must be permitted.  We hold, therefore, the Town of 
Eliot did not fail to bargain in good faith in violation of 
964(1)(E) after its good-faith rejection of the tentative agree-
ment by attempting to bargain over issues that had not been raised 
during the first three negotiating sessions.

     We encourage the parties to return to the bargaining table 
and attempt to reach an agreement in light of the Board's 
conclusions.	We note that the parties filed a "Mutual Request to 
Waive Fact Finding" prior to the evidentiary hearing in this 
matter and that an interest arbitration hearing is scheduled for 
February 27, 2017.  We do not think it would be productive to hold 
the parties to their agreement to waive fact finding.  To that
end, we will instruct the Executive Director of the Board to allow 
either or both parties to withdraw their request to proceed 
directly to interest arbitration if either believes mediation or 
fact finding would be beneficial.  Such a request to withdraw 
should be made to the Board's Executive Director by February 17,


[end of page 12]


2017. If both parties still want to proceed to interest 
arbitration, that will be permitted.


                               ORDER

     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 MRSA §968(5), the complaint is dismissed.

Dated at Augusta, Maine, this 3rd day of February 2017

				 

 

 

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