STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-31
_______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY EMPLOYEES, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
BIDDEFORD POLICE DEPARTMENT )
and CITY OF BIDDEFORD, )
)
Respondents. )
_______________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of
a prohibited practice complaint filed April 4, 1978 by Steven J. Cullen,
Organizer, Teamsters Local Union No. 48 ("Local No. 48"). The Biddeford
Police Department's and City of Biddeford's ("Biddeford") answer to the
complaint was filed April 24, 1978 by Marcel R. Viger, Esquire.
A pre-hearing conference on the case was held on June 12, 1978 with
Alternate Chairman Donald W. Webber presiding. As a result of this pre-
hearing conference, Alternate Chairman Webber Issued on June 13, 1978 a Pre-
Hearing Conference Memorandum and Order, the contents of which are incor-
porated herein by reference.
A hearing on the case was convened on October 3, 1978 in Portland, Maine,
Chairman Edward H. Keith presiding, with Paul D. Emery, Employer Representa-
tive, and Michael Schoonjans, Employee Representative. After making their
opening statements, the parties agreed at the October 3, 1978 hearing that the
hearing should be continued pending resolution of an arbitration proceeding
which involved an issue related to this case. The Board accordingly ordered
that the hearing be continued.
The hearing reconvened in Portland, Maine on December 12, 1978. At the
close of the hearing, the parties agreed to file briefs arguing the legal
issues raised by the case. All briefs were filed by January 22, 1979, and the
Board proceeded to deliberate over the case at a conference held in Augusta,
Maine on February 7, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Rela-
tions Board in this matter, and we conclude that the Board has jurisdiction to
hear and render a decision in this case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the testimony and documentary evidence admitted at the
hearing as well as the pleadings and the Pre-Hearing Conference Memorandum and
Order, the Board finds that:
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1. Complainant Teamsters Local Union No. 48 has since September 14,
1978 been the certified bargaining agent for a bargaining unit of
public employees composed of the Sergeants, Corporals, and Patrol-
men employed full-time by the City of Biddeford, Maine, Police
Department ("the bargaining unit"). Prior to September 14, 1978,
Local No. 48 was a public employee organization engaged in attempt-
ing to organize the employees in the bargaining unit with the aim
of decertifying Council No. 74, American Federation of State, County
and Municipal Employees, AFL-CIO ("AFSCME") as the unit's bargaining
agent.
2. Respondents Biddeford Police Department and City of Biddeford
("City") are public employers as defined by 26 M.R.S.A. 962(7).
3. On December 13, 1976, the City and AFSCME, the certified bargaining
agent for the bargaining unit at the time, executed a collective bar-
gaining agreement ("the agreement") covering the members of the bar-
gaining unit.
4. Article V of the agreement provides in pertinent part that:
"The City agrees to deduct the union membership initiation
fee, assessments and, once each week, dues from the pay of
those employees who individually request in writing that
such deductions be made . . .
"This authorization shall be irrevocable during the term of
the Agreement . . . "
Most if not all of the employees in the bargaining unit requested
that the City deduct dues from their salary.
5. Article XVI of the agreement provides that:
"It shall be a condition of continued employment that all
employees of the City covered by this agreement who are
members of the Union in good standing on the effective
(execution) date of this agreement shall, not later than
the Thirty-First (31st) day following the effective (exe-
cution) date of this agreement become and remain members
in good standing in the Union. It shall also be a condi-
tion of continued employment that all employees covered by
this agreement and hired on or after its effective (execu-
tion) date shall, not later than the Thirty-First (31st)
day following the beginning of such employment, become and
remain members in good standing in the Union.
"A. The City will within three (3) working days
after receipt of notice from the Union,
terminate any employee who is not in good
standing in the Union as required by the
preceding paragraph."
6. Article XXVIII of the agreement provides that:
"This agreement shall be effective as of the 1st day of
January, 1976, and shall remain in full force and effect
until the 31st day of December, 1977. It shall be auto-
matically renewed from year to year thereafter unless
either party shall notify the other in writing one hundred
and twenty (120) days prior to the anniversary date that
it desires to modify this agreement. In the event that
such notice is given, negotiations shall begin not later
than sixty (60) days prior to the anniversary date; this
agreement shall remain in full force and be effective
during the period of negotiations and until notice of
termination of this agreement is provided to the other
party in the manner set forth in the following paragraph.
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"In the event that either party desires to terminate this
agreement, written notice must be given to the other party
not less than ten (10) days prior to the desired termination
which shall not be before the anniversary date set forth in
the preceding paragraph."
7. Pursuant to Article XXVIII of the collective bargaining agreement,
AFSCME tendered timely notice to the City that AFSCME desired to
modify the agreement. Negotiations over the proposed modifications
commenced In December, 1977, and continued until early February,
1978.
8. By letter dated February 2, 1978 to the Mayor of the City, the
employees in the bargaining unit notified the Mayor that:
"Pursuant to Article XXVIII . . . we, the undersigned
members of the past and current negotiating commit-
tees, and the acting Chairman for said agreement, do
hereby terminate, by this notice, the contract which
expired on 31 December, 1977 . . . , effective 15
February, 1978."
9. In a letter dated February 13, 1978 to the Mayor of the City, the
Coordinator of Field Services for AFSCME stated ". . . the request
by the employees to terminate the Collective Bargaining Agreement
presently in effect is not a valid request as the employees making
such request were not authorized to do so."
10. By letter dated February 24, 1978 to the Mayor of the City, the em-
ployees in the bargaining unit informed the Mayor that the employees:
". . . do hereby revoke all authority, previously given to
the City of Biddeford, to withhold and withdraw, to hold
or to pay, or in any other manner, to transfer any part of
our wages to Local 1828, Council 74, of the American Fed-
eration of State, County and Municipal Employees and/or any
of their representatives."
11. Commencing with the first week of March, 1978, the City pursuant
to Article V of the agreement continued deducting dues from the
salary of those employees in the bargaining unit who had authorized
dues deductions, but did not remit the deductions to AFSCME.
Instead, the City placed the dues deductions in an escrow fund,
pending a determination whether the dues should be remitted to
AFSCME or returned to the employees.
12. On March 3, 1978, Local No. 48 filed a Petition for Decertification
Election with the Board, seeking to decertify AFSCME as the bargain-
ing agent for the bargaining unit. AFSCME was decertified at a de-
certification election held July 28, 1978. Local No. 48 was certi-
fied as the bargaining agent for the unit at a certification election
on September 14, 1978.
13. The City stopped deducting dues pursuant to Article V of the agree-
ment on July 28, 1978, the date upon which AFSCME was decertified.
By that date, the escrow fund contained $1,240.75 in dues deductions.
14. By letter dated September 12, 1978, AFSCME requested that the Maine
Board of Arbitration and Conciliation conduct a grievance arbitration
hearing on the issue of remittance of the dues held in the escrow
fund by the City.
15. The Maine Board of Arbitration and Conciliation conducted a grievance
arbitration on the issue on October 13, 1978. Neither representatives
of Local No. 48 nor members of the bargaining unit participated in the
arbitration.
16. The Board of Arbitration and Conciliation issued a unanimous decision
on the matter on October 18, 1978, ruling that the City violated
Article V of the collective bargaining agreement by not remitting the
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dues deductions to AFSCME. The Board of Arbitration and Con-
ciliation accordingly ordered the City to remit the $1,240.75
in dues deductions to AFSCME. After receiving a letter dated
November 3, 1978 from the Chairman of the Board of Arbitration
and Conciliation stating that the dues became payable to AFSCME
immediately upon the rendering of the arbitration decision, the
City remitted to AFSCME the $1,240.75 contained in the escrow
fund.
DECISION
Local No. 48 charges that Biddeford violated 26 M.R.S.A. 964(1)(A) and
(B) by continuing to deduct dues from the salaries of employees in the bar-
gaining unit after the employees by their February 24, 1978 letter to the
Mayor expressed a desire to revoke their dues deduction authorizations.[fn]1
Biddeford raises several arguments in response to the charge, contending that
Local No. 48's complaint must be dismissed because (1) Local No. 48 lacked
standing to file the prohibited practice complaint on April 4, 1978 since it
was not the bargaining agent for the bargaining unit at that time, (2) the
Board should defer ruling on the complaint in light of the October 18, 1978
arbitration decision; and (3) the City's continued withholding and placement
of the dues in an escrow fund does not constitute a violation of any of the
provisions of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq. ("Act").
As discussed more fully below, we find that Local No. 48 had standing to
file the prohibited practice complaint, that it would not be appropriate for
us to defer ruling upon the complaint because of the arbitration decision, and
that the City's continued withholding of dues until the date upon which AFSCME
was decertified does not constitute a violation of the Act. Because there has
been no violation of the Act, we will order that Local No. 48's complaint be
dismissed.
1. The Standing of Local No. 48. We cannot agree with Biddeford's argu-
ment that Local No. 48 lacked standing to file a prohibited practice complaint
until such time as the union became the bargaining agent for the bargaining
unit in question. Section 968(5)(B) of the Act provides in pertinent part
that ". . . any public employee organization or bargaining agent . . . may
file a complaint . . ." By differentiating between "public employee organiza-
tions" and "bargaining agents," the Legislature clearly indicated that a
public employee organization which is not a bargaining agent is authorized to
file complaints. As argued by Local No. 48, a contrary interpretation of
Section 968(5)(B) would undermine the provisions of the Act, because a public
employer would be able to violate the Act with impunity during an organiza-
tional campaign before the public employee organization became the bargaining
agent, unless an employee was willing to file a complaint. Local No. 48 was
on April 4, 1978 a public employee organization. We consequently conclude
that Local No. 48 had standing under 26 M.R.S.A. 968(5)(B) on April 4,
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1 In its prohibited practice complaint, Local No. 48 also charged that
statements by a City Councilman on or about February 7, 1978 before a group of
bargaining unit employees resulted In violations of 26 M.R.S.A. 964(1)(A)
and (B). This charge was withdrawn with prejudice by Local No. 48 at the
December 12, 1978 hearing.
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1978 to file the complaint initiating this action.
2. The Argument Concerning Deferral. Neither can we agree with
Biddeford's contention that we should defer ruling upon the complaint in light
of the October 18, 1978 arbitration decision ordering the City to remit the
$1,240.75 in dues in the escrow fund to AFSCME. We have in previous cases
dismissed complaints or deferred ruling upon complaints when there is a
collective bargaining agreement in effect which provides a grievance procedure
for resolving the matter in controversy. See MSAD #45 Teachers Ass'n v. MSAD
#45 Bd. of Dirs., M.L.R.B. Case No. 78-10 (1978); Bangor Education Ass'n v.
Bangor School Comm., M.L.R.B. Case No. 76-11 (1976); Tri-22 Teachers Ass'n v.
SAD No. 22 Bd. of Dirs. M.L.R.B. Case No. 75-28 (1975). However, in Malcolm
Charles v. City of Waterville, M.L.R.B. Case No. 78-19 (1978), we recognized
a limited exception to our deferral policy. This exception arises when the
interests of the employees conflict with the interests of the labor organiza-
tion representing the employees as well as the interests of the public
employer. As we stated in Malcolm Charles, supra:
"When the interests of the employees filing the prohibited
practice complaint are in conflict with the interests of the
labor organization representing the employees as well as the
interests of the public employer, we will not defer to the
grievance procedure provided in the contract, but will instead
proceed to a determination of the merits of the complaint, see
Hines v. Anchor Motor Freight Inc., 424 U.S. 554 (1976); Kansas
Meat Packers, 198 NLRB 543 (1973)). In our opinion, this limited
exception to the deferral rule is necessary in order to protect
fully the free exercise of the rights provided to public employ-
ees in 26 M.R.S.A. 963. When the interest of the labor organ-
ization and employees involved is in conflict, the employees'
interests may not be adequately represented in the grievance
process. Consequently, we believe that in light of Section 963
we cannot preclude public employees from having the merits of
their case decided by this Board when their grievance procedure
is administered by parties whose interests conflict with the in-
terests of the employees."
The interests of the employees and AFSCME obviously conflict in the
present case. The position of AFSCME at the arbitration hearing was that the
dues in the escrow fund should be remitted to AFSCME, while the position of
the employees, as evidenced by their February 24, 1978 letter to the Mayor,
was that the dues should not have been deducted in the first place.
Additionally, the interests of the employees and the City do not coincide, as
the City's position at the arbitration was that it was willing to remit the
dues either to AFSCME or to the employees, depending upon the arbitrator's
decision. Neither the employees nor Local No. 48 participated in the arbitra-
tion proceeding. In light of the conflict between the interests of the
employees, AFSCME, and the City, we find that this is not an appropriate case
in which to defer to the arbitration award.
3. The Merits of the Complaint. Turning to the merits of the complaint,
we conclude that we must agree with Biddeford's contention that the continued
withholding of dues after receipt of the employees' February 24, 1978 letter
does not constitute violations of Sections 964(1)(A) and (B) of the Act.
Local No. 48 argues on brief that when employees validly revoke their dues
checkoff authorizations, a public employer who continues deducting dues
violates Section 964(1)(A)
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of the Act. We have no quarrel with, and indeed hereby expressly adopt, this
well-settled general principle of labor law. However, the record in this case
does not support a finding that the employees' February 24, 1978 letter to the
Mayor constitutes a valid revocation of the dues checkoff authorizations. We
consequently cannot find that the continued withholding of dues resulted in a
violation of the Act.
Local No. 48 asserts that there are three independent reasons why the
February 24, 1978 communication to the Mayor amounted to a valid revocation of
the dues checkoff authorizations. The first of these reasons is that the
employees authorized dues checkoffs because of the "union shop" provision
(Article XVI) in the agreement, and, since "union shop" provisions were indi-
cated to be violative of public policy in Churchill v. S.A.D. No. 49 Teachers
Ass'n, 380 A.2d 186 (Me. 1977), the "union shop" provision is void and the
checkoff authorizations made pursuant to the provision voidable at the will of
the employees. We cannot adopt this rationale, however, because the record
contains no evidence that the employees authorized the dues checkoffs under
the compulsion of the "union shop" provision in Article XVI of the agreement.
Whether or not the employees did authorize the dues checkoffs because of the
"union shop" provision is a matter easily proved by the testimony of the
employees, yet no such testimony was offered at the hearing on this case.
We recognize that in one case the National Labor Relations Board
("N.L.R.B.") adopted a presumption that the employees involved must have
authorized dues checkoffs because of the union shop provision in their
collective bargaining agreement, and that a United States Court of Appeals
approved the adoption of this presumption. Penn Cork & Closures, Inc., 156
N.L.R.B. 411 (1965), enf'd, N.L.R.B. v. Penn Cork & Closures, Inc., 376 F.2d
52 (2nd Cir.). cert. denied, 389 U.S. 843 (1967). While we generally find
N.L.R.B. precedent persuasive, we are reluctant to base a legal or factual
finding on a presumption when the fact to be presumed could, if true, be
proved by evidence offered at a hearinq.[fn]2 See Teamsters Local Union No. 48
v. Town of Oakland, M.L.R.B. Case No. 78-30 (1978). Additionally, even if a
presumption may reasonably and logically be drawn from proof of certain other
facts, the trier-of-fact may find that these particular facts, even if undis-
puted, do not justify a drawing of the presumption. Hann v. Merrill, 305
A.2d 545, 553 (Me. 1973). We accordingly decline under the facts of their
case to adopt the N.L.R.B.'s presumption regarding checkoff authorizations
when there is a void "union shop" clause in the agreement,and find that the
void "union shop" provision in the instant case does not make the February 24,
1978 letter to the Mayor a valid revocation of the employee's checkoff
authorizations.
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2 The Court in Penn Cork made it clear that it believed that "the
impossible administrative task of exploring the mental processes of thousands
of workers" was the major consideration justifying approval of the N.L.R.B.'s
adoption of the presumption. 376 F.2d at 56. No comparable problem is
present in the instant case, as there were only approximately 30 employees in
the bargaining unit as of July 28, 1978. Further, we believe that testimony
by only several of these employees would have sufficed to establish whether
the employees authorized dues checkoffs because of the "union shop" provision
in the agreement.
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Second, Local No. 48 argues that the February 24, 1978 letter constitutes
timely and proper revocation of the checkoff authorizations because the letter
came during a period when the agreement between AFSCME and the City had been
extended, citing in support of this proposition Murtha v. Pet Dairy Products
Co., 44 Tenn. App. 460, 314 S.W. 2d 185 (1957), and Anheuser-Busch,Inc. v.
International Brotherhood of Teamsters, Local 822, 584 F.2d 41 (4th Cir.
1978). We do not believe that either Murtha or Anheuser-Bush are apposite to
the instant case, however, because the revocations in both of these cases
occurred during the hiatus between expiration of one collective bargaining
agreement and execution of a successor agreement, when there was no agreement
in effect.[fn]3 In addition, the holdings in both cases turn on Section
302(C)(4) of the Taft-Hartley Act, 26 U.S.C. 186(C)(4), a provision which
"guarantees employees an opportunity to revoke dues checkoff authorizations at
the expiration of each collective bargaining agreement." N.L.R.B. v. Atlanta
Printing Specialties, 523 F.2d 783, 788 (5th Cir. 1975). Although Maine's Act
contains no provision similar to 302(C)(4) of the Taft-Hartley Act, we do
agree with the holdings in Murtha and Anheuser-Busch that employees may revoke
their checkoff authorizations at will when there is no collective bargaining
agreement in effect.
In the instant case, however, there was a collective bargaining agreement
in effect on February 24, 1978 when the employees attempted to revoke their
checkoff authorizations. Pursuant to Article XXVIII of the agreement, AFSCME
had tendered timely notice to the City that AFSCME desired to modify the
agreement. Article XXVIII provides that upon the tendering of this notice,
the agreement would remain in full force and effect until one party notified
the other of termination of the agreement. Additionally, Article V of the
agreement provides that dues checkoff authorizations "shall be irrevocable
during the term of the Agreement . . ." It thus is clear that by operation of
the provisions in the agreement, the agreement
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3 In Murtha, the agreement expired on May 31, 1955. Around July 15,
1955, the parties to the agreement orally agreed to continue in effect "all
the provisions of the old contract" until a new contract could be negotiated.
314 S.W. 2d at 186-187. The Court ruled that the valid revocations were sub-
mitted from May 31, 1955 through October 27, 1955, the date upon which a
successor agreement was executed. Arguably, then, the Murtha holding could
stand for the proposition that revocations submitted during the period when
an agreement has been extended pending execution of a successor agreement are
valid. The Courts have not so read Murtha, however. See Anheuser-Busch,
supra, 584 F.2d at 44 ("Murtha, . . . involved the right of employees to
revoke their checkoff authorizations at will between bargaining agreements.");
Monroe Lodge No. 770, I.A. of M.&A.W. v. Litton Business Systems, Inc., 334
F. Supp. 310, 315 (W.D.Va. 1971) (". . . these revocations were made during a
period of time between the expiration date of a prior collective agreement and
the execution date of the new labor contract . . . ."). In any event, the
"extension" of the expired contract in Murtha was accomplished by oral agree-
ment some six weeks after the contract had expired. In contrast, the agree-
ment in the present case was extended pursuant to a written provision in the
agreement (Article XXVIII) by notice given prior to the expiration date stated
in the agreement.
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remained in full force and effect as of February 24, 1978, and that the check-
off authorizations were irrevocable while the agreement was in effect.
Consequently, we cannot agree that the employees' February 24, 1978 letter
constitutes timely and proper revocation of the checkoff authorizations.
Finally, Local No. 48 contends that the employees' February 2, 1978
letter to the Mayor validly terminated the agreement, making the checkoff
authorizations revocable at will. This argument overlooks the fact that on
February 13, 1978 the Coordinator of Field Services for AFSCME wrote to the
Mayor stating that the February 2, 1978 request to terminate the agreement
"is not a valid request as the employees making such request were not
authorized to do so." The agreement is unclear as to who could terminate the
agreement on behalf of AFSCME.
Particularly in light of this lack of clarity in the agreement, we
believe that it would be unwise to rule that the employees could validly
terminate the agreement over the objection of the bargaining agent's leader-
ship. Such a ruling could result in chaos in the collective bargaining arena,
with dissident groups of employees terminating agreements without the
authorization of the bargaining agent, creating constant confusion and con-
flict over whether a particular agreement was or was not in effect. This
chaotic state of affairs obviously would be detrimental to the interests of
employees, bargaining agents and employers. We accordingly cannot agree in
this case that the employees' February 2, 1978 letter to the Mayor validly
terminated the collective bargaining agreement.
For all of the foregoing reasons, we conclude that the employees'
February 24, 1978 letter did not constitute a valid revocation of the
employees' dues checkoff authorizations, and that the City's continued
deduction of dues until the date upon which AFSCME was decertified accordingly
does not constitute a violation of 26 M.R.S.A. 964(1)(A) or (B). Our con-
clusion that Biddeford did not violate the Act is fortified by the City's
conduct after receipt of the employees' February 24, 1978 letter. Faced with
conflicting demands from the employees and from AFSCME regarding continuation
of dues checkoff, the City adopted the most neutral position available; the
City continued to deduct dues, but instead of remitting the amounts deducted
to AFSCME, placed the dues in an escrow fund pending a determination whether
the dues should be remitted to AFSCME or returned to the employees. The Maine
Board of Arbitration and Conciliation ordered on October 18, 1978 that the
dues deductions be remitted to AFSCME, and the City complied with this order.
These neutral actions by the City cannot reasonably be said to tend to inter-
fere with the free exercise of employee rights in violation of Section
964(1)(A) of the Act, or to amount to discrimination in regard to a term or
condition of employment in violation of Section 964(1)(B) of the Act. See
Teamsters Local Union No. 48 v. Town of Oakland, supra. Local No. 48's
complaint must be dismissed.
ORDER
On the basis of the foregoing findings of fact and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by the
provisions of
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26 M.R.S.A. 968, it is hereby ORDERED:
That the prohibited practice complaint filed April 4, 1978
by Teamsters Local Union No. 48 against the Biddeford Police
Department and the City of Biddeford be and hereby is
DISMISSED.
Dated at Augusta, Maine this 27th day of March, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Paul D. Emery
Employer Representative
/s/____________________________________
Michael Schoonjans
Employee Representative
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