STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-25
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)
WESTBROOK POLICE UNIT of Local 1828, )
Council No. 74, American Federation )
of State, County and Municipal )
Employees, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF WESTBROOK, Westbrook City )
Council )
)
and )
)
Robert Curley, Michael Cooper, )
Leroy Darling and Carmine Russo, )
)
Respondents. )
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This case comes to the Maine Labor Relations Board by way of a prohibited
practice complaint filed on February 27, 1978 by Kenneth Walo, Field Representative,
Council No. 74, American Federation of State, County and Municipal Employees, AFL-
CIO. The City of Westbrook's response to the complaint was filed on March 15, 1978
by James E. Gagan, City Solicitor.
A pre-hearing conference was held in the matter on April 18, 1978 in Augusta,
Maine, with Alternate Chairman Donald W. Webber presiding. As a result of this
pre-hearing conference, Alternate Chairman Webber issued on April 20, 1978 a Pre-
Hearing Conference Memorandum and Order, the contents of which are incorporated
herein by reference.
A hearing on the case was held on June 6, 1978 in Augusta, Maine. All legal
briefs on the matter were submitted by July 18, 1978, and the Board proceeded to
deliberate on the case on August 2, 1978, Alternate Chairman Donald W. Webber
presiding, with Kenneth T. Winters, Alternate Employer Representative and Michael
Schoonjans, Employee Representative.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that this Board has jurisdiction to hear
and render a decision in this case as provided in 26 MRSA 968(5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the Pre-Hearing
Conference Memorandum and Order and the pleadings, the Board finds:
1. Complainant Local 1828, Council No. 74, American Federation
of State, County and Municipal Employees, AFL-CIO ("Council
No. 74") was at all time material herein the certified
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bargaining agent for a bargaining unit composed of certain
employees of the City of Westbrook Police Department.
2. Respondent City of Westbrook ("City") is a public employer
as defined by 26 MRSA 962(7), with an address of City
Hall Building, Westbrook, Maine 04092.
3. On or about August 1, 1977, Council No. 74 forwarded to the
City proposals concerning a collective bargaining agreement
covering the City's Police Department bargaining unit.
4. By letter dated August 9, 1977, the City informed Council
No. 74 of the names of the four members of the City's
negotiating team. Designated as spokesman for the City's
negotiating team in the August 9, 1977 letter was a pro-
fessional negotiator. The City had never before hired a
professional negotiator to represent it in contractual
negotiations with Council No. 74.
5. The first negotiating session was conducted on August 22,
1977, at which time the City's professional negotiator
stated that he would not serve as an "errand boy" to the
City Council, and that the City's negotiating team had the
authority to negotiate a collective bargaining agreement
within certain cost guidelines with Council No. 74.
6. The City's professional negotiator also stated at the
August 22, 1977 session that he realized that reduction
in the number of years required for retirement would be
a major issue for negotiations, and indicated that the
City's team was authorized to negotiate over the retirement
issue. Prior to commencement of negotiations in August, 1977,
the City's negotiating team was not authorized to negotiate
and agree upon contracts for the City's employees, but instead
was required by the Westbrook City Council to carry each pro-
posal and counterproposal back and forth from the City
Council to the bargaining table.
7. Ground rules to govern the subsequent conduct of negotiating
sessions were also discussed at the August 22, 1977 session.
Among the ground rules discussed were those concerning rati-
fication of any tentative agreement reached by the negotiating
teams. Council No. 74's negotiating team indicated that the
members of the police unit would have to ratify any agreement
reached by the negotiators before the agreement became final,
while the City's team indicated that the City Council would
have to ratify any tentative agreement by approving the monies
necessary to fund the agreement. No written ground rules
were prepared.
8. Following the first negotiating session, the City's negotiating
team on August 22, 1977 met for the first time with members of
the City Council. At the meeting, the City Council authorized
the City's negotiating team to reach tentative agreement with
Council No. 74 on a collective bargaining agreement if the
cost of the agreement amounted to no more than a 6 - 7
percent increase per year over the term of the agreement. At
the conclusion of the meeting, the Chairman of the City Council's
Finance Committee indicated that the City's team could reach
tentative agreement on a reduction in the number of years
required for retirement so long as the cost of such reduction
was within the 6 - 7 percent guideline established by the
City.
9. As a result of the August 22, 1977 meeting between the City's
negotiating team and the City Council, the professional nego-
tiator hired to represent the City understood that the City's
team had been authorized to reach tentative agreement with
Council No. 74 on a contract, even if the contract reduced
the number of years required for retirement, if the cost of
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the contract was within the 6 - 7 percent guideline.
The professional negotiator reasonably understood that if
the cost of the contract was within the guideline, then
ratification by the City Council would be perfunctory.
10. Negotiating sessions between the City's team and Council
No. 74's team were also held on September 12, October 5,
October 24, November 23, December 20, 1977, and on
January 5, 1978.
11. At the September 12, 1977 negotiation session, the City's
team presented a cost study of 20, 21 and 22 year retire-
ment plans, and an actuarial study of the additional costs
to the City of 20, 21 and 22 year retirement plans.
12. At the December 20, 1977 negotiation session, the City's
team submitted a written proposal for a 2 year con-
tract (January 1, 1978 to July 1, 1980) to Council No. 74.
Included in the proposal was a provision reducing the
amount of time necessary to achieve retirement from 23
years to 22 years as of January 1, 1979, and 21 years
as of January 1, 1980. Negotiations over the City's pro-
posals ensued, with Council No. 74 making counterproposals.
13. At the January 5, 1978 negotiation session, the City's
team submitted another written proposal for a 2 year
contract. This proposal reduced the amount of time neces-
sary for retirement to 22 years as of July 1, 1978, and to
21 years as of the end of the contract. Council No. 74
then submitted a counterproposal, which was followed by the
submission by the City's team of a counterproposal which
reduced the cost of the proposed contract during its second
year. The City's team characterized this counterproposal
as the City's "last best offer." Council No. 74's negotiating
team accepted this offer and stated that the proposed contract
would be presented to the unit membership for ratification.
The contract subsequently was ratified by the unit membership.
14. At the close of the January 5, 1978 session, a member of the
City's team indicated to Council No. 74's team that the pro-
posed contract would also have to be ratified by the City Council.
15. In a letter dated January 28, 1978 to the chief negotiator for
Council No. 74's team, the professional negotiator who repre-
sented the City stated, "The Westbrook City Council at its
meeting of January 23, 1978 rejected the negotiated Police
package presented by the City Negotiating Team. In particular,
the City Council rejected the adjustment of the Police retire-
ment from 23 years down to 21 years. . . ."
16. In a letter dated February 17, 1978 to the chief negotiator for
Council No. 74's team, the City's professional negotiator stated
that ". . . the City Council, . . .reconsidered the 'authority'
granted the City Negotiator in dealing with the Police Union.
"The City Council unanimously reaffirmed that the issue
of Police retirement was not within the grant of authority
given to the Chief Negotiator. . . . Therefore, the retire-
ment offer made at the bargaining table was beyond my capacity
to grant or agree to at the table." (emphasis in original)
17. The cost of the agreement which the City Council refused to
ratify exceeded the 6 - 7 percent cost guideline estab-
lished for the City's negotiating team by the City Council
by approximately $2,000.
DECISION
Complainant has charged that Respondent Westbrook City Council violated
26 MRSA 964(1)(E) by (1) refusing to execute the collective bargaining agreement
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negotiated by the City's and Council No. 74's negotiating teams, as required by
26 MRSA 965(1)(D), and (2) bargaining in bad faith contrary to its obligation
set forth in 26 MRSA 965(1)(C). Respondents contend that the agreement nego-
tiated by the bargaining teams is not binding upon the City without ratification
by the City Council, and that Respondents are not guilty of bad faith bargaining.
For the reasons discussed below, we find that Respondents did not violate Section
964(1)(E) of the Municipal Public Employees Labor Relations Act by refusing to
execute the agreement negotiated by the bargaining teams, but that Respondents
are guilty of bad faith bargaining in violation of Section 964(1)(E). We accord-
ingly order an appropriate remedy.
I
This case is one in a long series of cases before this Board which raise
issues concerning the authority of bargaining teams to negotiate and agree upon
the provisions of a collective bargaining agreement. As was the case in many of
these previous instances, there were no written ground rules prepared at the
commencement of negotiations in the instant case. In our opinion, the failure
of the negotiating teams in the instant case to prepare written ground rules is
inexcusable. The simple act of preparing such written ground rules would in all
likelihood have obviated the need for the prohibited practice complaint which
initiated this proceeding, thereby sparing all parties concerned considerable
effort and resources.
We have in our previous decisions relied upon several well-settled principles
of labor law which are pertinent to the present case. Among these principles is
that absent a ground rule governing the binding effect of any agreement reached
by negotiators, we find a strong presumption that the tentative agreement is
binding on the parties, Karen O'Neil v. MSAD No. 64 Board of Directors, MLRB
Case No. 77-06 (1977); John Glover v. MSAD No. 68 Board of Directors, MLRB Case
No. 77-07 (1977); Van Buren Education Ass'n v. MSAD No. 24, MLRB Case No. 76-08
(1976). The parties may of course reserve the power of the principals to ratify
any tentative agreement reached by the negotiators, although in such a case the
negotiators must be clothed with sufficient knowledge, guidelines and authority
to reach at least tentative agreement, Biddeford Unit of Local 1828, Council No.
74, AFSCME v. City of Biddeford, MLRB Case No. 75-33 (1975). As we stated in
Biddeford Unit of Local 1828, supra:
"At the commencement of negotiations, a sound collective
bargaining process would have each party reveal what steps,
if any, are required after tentative agreement is reached,
before final ratification. The other party should request
such information if it is not volunteered. Such a practice
would alleviate misunderstandings and avoid the unwarranted
delay and expense of the parties in this case."
Once a party has reserved the power of the principal to ratify any tentative
agreement, the agreement will not be concluded and binding until it is ratified
by the principal who must abide by the agreement, Arundel Teachers Ass'n v. David
Majercik, MLRB Case No. 73-08 (1973). On the other hand, the principal may delegate
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the authority to reach final, binding agreement to its negotiators, Local 1601,
International Ass'n of Firefighters, AFI-CIO v. Rumford Board of Selectmen, MLRB
Case No. 73-07 (1973). Once the authority of the negotiator has been established,
it is incumbent upon the principal to inform immediately the other parties to the
negotiations of any subsequent changes in the negotiator's authority. Such a
change requires actual or constructive notification before it becomes effective,
MSAD No. 38 Board of Directors v. MSAD No. 38 Teachers Ass'n, MLRB Case No. 76-20
(1976).
II
1. The allegation concerning the failure to execute the agreement.
With the above legal principles in mind, it is apparent that two of the
critical factual issues in this case are 1) what authority did the City Council
delegate to the City's negotiating team regarding the team's power to reach binding
agreement with Council No. 74, and 2) what representations did the City's team make
to Council No. 74's negotiators concerning the City team's authority to reach
binding agreement? After careful consideration of the testimony and exhibits,
we conclude that the City Council did not in fact delegate the authority to enter
into binding agreements to the City's bargaining team, and that the City team's
representations were not sufficient to cause Council No. 74's negotiators reason-
ably to expect that any agreement reached by the negotiating teams would not have
to be ratified by the City Council.
Testimony at the hearing established that in all previous contract negotiations
between the City and Council No. 74, the City's negotiating team essentially served
as a conduit between the City Council and the bargaining table. The City nego-
tiators merely transmitted proposals to and from the City Council to the table,
and in all probability were not authorized to reach even tentative agreement on
proposed contractual provisions. Ratification by the City Council was always
required before an agreement became binding.
With the hiring of a professional negotiator to represent the City in the
1978 collective bargaining negotiations, the authority of the City's negotiating
team changed, however. At the August 22, 1977 meeting between the City Council
and the City's bargaining team, the City's team was authorized to reach agreement
with Council No. 74 on a collective bargaining agreement so long as the cost of
the agreement amounted to no more than a 6 - 7 percent increase per year.
We do not believe that the City team's authorization to reach agreement with
Council No. 74 included the power to enter into a binding agreement, however.
Unlike the facts in Local 1601, International Ass'n of Firefighters, AFL-CIO,
supra, there is no suggestion in the record that the City's team was expressly
delegated the authority to enter into binding agreements on behalf of the City.
In light of the circumstances, we are convinced that the City Council's grant
of authority at the August 22, 1977 meeting empowered the City team only to
reach tentative agreement with Council No. 74. Unlike the previous negotiations
between the City and Council No. 74, the City's negotiators were not to serve
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as "errand boys" during the negotiations, but were instead granted real authority
to reach tentative agreement on the various contractual provisions. Such a grant
of authority constitutes a material change in the City Council's methods of parti-
cipating in collective bargaining negotiations, but it cannot be said to amount
to an abdication of the City Council's power to ratify the agreement reached by
the negotiating teams.
Complainant contends on brief, however, that Council No. 74's negotiating
team was led to believe by the City team's representations that the City nego-
tiators were in fact authorized to reach a binding agreement. Complainant alleges
that Council No. 74's negotiators relied upon such representations in making con-
cessions to the bargaining demands of the City negotiators. We agree with Com-
plainant's contention that if the City team did induce reliance by Council No.
74's negotiators through its representations concerning its authority, then the
City should be held to be bound by the agreement reached by the negotiators.
We do not agree, however, that the representations made by the City's nego-
tiators were sufficient to mislead or otherwise prejudice the bargaining positions
of Council No. 74's negotiators. The City's professional negotiator stated at
the initial negotiating session on August 22, 1977 that he was not going to serve
as an "errand boy" for the City Council during the negotia- tions, and that the
City's team had been authorized to negotiate a collective bargaining agreement
within certain cost guidelines with Council No. 74. These assertions were repeated
during subsequent negotiating sessions. Complainant in effect alleges that these
assertions, in conjunction with the fact that the City had abandoned its previous
negotiating procedure and hired a professional negotiator, and the alleged fact
that the City negotiators did not affirmatively state that any agreement reached
was subject to City Council ratification, reasonably led Council No. 74's nego-
tiators to understand that any agreement reached would be binding on the City,
without the need for ratification by the City Council. There is no indication
in the record, nor does Complainant contend, that the City negotiators affirm-
atively stated that any agreement reached would not have to be ratified by the
City Council.
We cannot accept Complainant's allegation for several reasons. First, the
record indicates that Council No. 74's negotiators were informed at the initial
bargaining session that approval by the City Council was necessary before any
agreement became final and binding. Witnesses for both parties testified that
ground rules were discussed at the initial negotiating session on August 22, 1977.
As we previously noted, a written document itemizing the ground rules discussed
and agreed upon was not prepared. However, Complainant's Exhibit No. 10, a hand-
written copy of the City professional negotiator's agenda for the August 22, 1977
meeting, indicates that the fourth item among the ground rules discussed at the
meeting was the issue of "ratification-process." It is clear that Council No. 74's
negotiators stated that any agreement reached by the bargaining teams would have
to be ratified by the unit membership before the agreement was binding on the
union. We therefore find that ratification was among the ground rules discussed
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at the August 22nd session.
As for what was stated by the City's team concerning ratification at the
August 22nd meeting, Complainant's witnesses testified that the City negotiators
did not say that an agreement would be subject to City Council ratification, while
the City's professional negotiator testified that he stated that he would have to
seek ratification from the City Council in the form of an appropriation of money
to fund the agreement. In resolving this apparent conflict in testimony, we
find, after careful consideration of the testimony and documentary evidence,
that the professional negotiator believed that City Council ratification of any
agreement within the cost guidelines would be perfunctory. We also find that
the professional negotiator conveyed this belief to Council No. 74's negotiators
not only during the August 22nd session but also during subsequent bargaining
sessions. The conveyance of this belief to Council No. 74's negotiators may
explain why Council No. 74 believed that ratification by the City Council would
not be required. Nonetheless, we credit the professional negotiator's testimony,
and find that Council No. 74's negotiators were informed that City Council ratifi-
cation, however perfunctory, would be required before the agreement became binding.
Second, the City Council retained its power to ratify or reject the tentative
agreement because the agreement exceeded the City Council's cost guidelines by
some $2,000. Complainant contends that Council No. 74's belief that any agree-
ment reached by the negotiating teams would be binding is premised in part on the
professional negotiator's assertions that he had the authority to negotiate an
agreement within certain cost guidelines. That the agreement reached by the bar-
gaining teams exceeded these cost guidelines is not controverted. Accepting
arguendo Complainant's contention that Council No. 74's negotiators were misled
by the professional negotiator's assertions, there is no reason to believe that
Council No. 74's negotiators did not understand that the City Council would have
to ratify the agreement if it exceeded the cost guidelines. We consequently
conclude that the City Council's power to ratify was preserved when the agreement
reached by the bargaining teams exceeded the City Council's guidelines.
Finally, we would be surprised indeed if Council No. 74's negotiators were
truly misled by the City negotiator's assertions into making concessions which
otherwise would not have been made. At least two members of Council No. 74's
team were experienced in negotiations with the City, and were aware that ratifi-
cation by the City Council had always been required in the past. The chief nego-
tiator for Council No. 74 is particularly experienced and well- respected as a
negotiator. We would expect such a negotiator to clarify any ambiguities con-
cerning the question of ratification at the outset of negotia- tions, and, if he
was informed that the long-established practice of City Council ratification had
been abandoned, to insist that such a change in past practice be formalized as a
written ground rule, see Biddeford Unit of Local 1828, Council No. 74, AFSCME,
supra. In short, Complainant's contention that Council No. 74's negotiating team
was so easily misled strains our credulity, given the experience and expertise
of some of the members of the bargaining team.
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For the reasons discussed above, we conclude that Council No. 74's belief
that any agreement reached by the negotiating teams would be binding without
City Council ratification is not supported by the record. Because the power of
the City Council to ratify any tentative agreement was reserved, the agreement
is not binding until ratified by the City Council, see Arundel Teachers Asso-
ciation, supra, and the City Council's refusal to execute the agreement does not
constitute a violation of 26 MRSA 964(1)(E).
2. The allegation concerning bad faith bargaining.
Turning to the allegation that Respondents violated 26 MRSA 964(1)(E) by
failing to negotiate in good faith as required by 26 MRSA 965(1)(C), we find
the City Council engaged in bad faith bargaining when it failed to clothe its
negotiators with sufficient guidelines governing the negotiation of the retirement
provision in the tentative bargaining agreement.
It was evident from the outset of negotiations that reduction in the number
of years required for retirement would be a major issue in the 1977 contract
negotiations. At the August 22, 1977 session the City's professional negotiator
acknowledged the importance of the retirement issue, and stated that the City's
negotiators were authorized to negotiate over the issue. Later on August 22 at
the conclusion of the meeting between the City Council and the City's bargaining
team, the Chairman of the City Council's Finance Committee indicated that the
City's team could reach tentative agreement on the retirement issue so long as
the cost of such agreement did not cause the total package to exceed the 6 -
7 percent guidelines. That the City negotiators understood that they had been
authorized to negotiate the retirement issue is established by Complainant's
Exhibit Nos. 1, 2, 3, 5, 6, 7 and 8, which are City cost and actuarial studies
and various City counterproposals concerning the retirement issue. However,
Joint Exhibit Nos. 2 and 3, letters dated January 28 and February 17, 1978 from
the City's professional negotiator to Council No. 74's chief negotiator, show
that at least one of the reasons why the City Council refused to ratify the
agreement was dissatisfaction with the retirement provision. Joint Exhibit No. 3
indicates that the City Council had reconsidered the authority granted to the
professional negotiator, and states in part that "The City Council unanimously
reaffirmed that the issue of Police retirement was not within the grant of
authority given to the City Negotiator. . ." (emphasis in original)
It therefore is apparent that there was a break-down in communications
between the City Council and the City's negotiators over the issue of the nego-
tiators' authority to negotiate a retirement provision. For nearly six months
the four-person City negotiation team bargained with the mistaken belief that it
was authorized to negotiate over the retirement issue, only to learn after nego-
tiations were concluded that it had not received such authorization. If the City
negotiators' authority was changed during negotiations, the City Council was
obligated to inform the parties to the negotiations of the change in authority
immediately, MSAD No. 38 Board of Directors, supra. We find that the City nego-
tiators reasonably believed that they had been authorized to negotiate over the
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retirement issue, and hold the City Council responsible for not clarifying their
negotiators' authority concerning the retirement issue prior to the conclusion
of negotiations. The City Council's ambiguity concerning the authority of its
negotiators to bargain over retirement, which confused its own negotiators, was
not conducive to the orderly functioning of the collective bargaining process,
and clearly amounts to an instance of bad faith bargaining. As we stated in
Biddeford Unit of Local 1828, Council No. 74, AFSCME, supra, a principal's
failure to clothe its negotiators with sufficient guidelines to negotiate a
contract is evidence of bad faith bargaining. Such a failure in the present
case resulted in considerable misunderstanding and in unnecessary delay in the
collective bargaining process. We consequently find that the City Council's
failure to provide its negotiators with sufficient guidelines regarding negotiation
of the retirement issue amounted to bad faith bargaining under 26 MRSA 965(1)(C),
in violation of 26 MRSA 964(1)(E).
III
Upon finding that a party has engaged in a prohibited practice, this Board
is empowered by 26 MRSA 968(5)(C) to order such party to take such affirmative
action "as will effectuate the policies of this chapter." Because we found that
Respondents did not violate 26 MRSA 964(1)(E) by refusing to ratify the tentative
agreement, it would not effectuate the policies of the Municipal Public Employees
Labor Relations Act ("Act") to order Respondents to execute the tentative agree-
ment. An appropriate remedy in light of Respondents bad faith bargaining violation
of the Act is to order Respondents to cease and desist from the acts prohibited
by 964(1) of the Act, and to hold Complainant free of all reasonable expenses
incurred in the prosecution of this prohibited practice complaint. Accordingly,
we will order not only that Respondents cease and desist from engaging in all
prohibited acts but also that Respondent City of Westbrook reimburse Complainant
for all reasonable costs incurred in the prosecution of this complaint, including
reasonable attorneys' and witnesses' fees. Because we believe it important that
Complainant and Respondents reach agreement in the near future on a collective
bargaining agreement for the Westbrook Police Unit, we will also order that the
parties make arrangements within 30 days from the date of this Decision and Order
to resume negotiations over an agreement. Ordering the remedies outlined above
will, we believe, best effectuate the policies of the Act.
ORDER
On the basis of the foregoing findings of fact and by virtue or and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
968 of the Municipal Public Employees Labor Relations Act, it is ORDERED:
1. That Respondents and their representatives and
agents cease and desist from engaging in any of
the acts prohibited by 26 MRSA 964(1) and
especially from refusing to bargain in good
faith as required by 26 MRSA 965.
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2. That Respondent City of Westbrook reimburse Com-
plainant for all reasonable costs incurred by
Complainant in the bringing of this prohibited
practice complaint, including reasonable attorneys'
and witnesses' fees.
3. That the parties to this case arrange within 30
days of the date of this Order to resume nego-
tiations over a collective bargaining agreement
for the Westbrook Police Unit.
4. That Respondents within 30 days from the date of
this Order notify in writing the Maine Labor
Relations Board at its office in Augusta, Maine
of the steps they have taken to comply with this
Order.
Dated at Augusta, Maine this 5th day of September, 1978.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Donald W. Webber
Alternate Chairman
/s/___________________________________
Michael Schoonjans
Employee Representative
/s/___________________________________
Kenneth T. Winters
Employer Representative
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