STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 79-10 and 79-18
________________________________
)
Case No. 79-10 )
)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY WORKERS, )
)
Complainant, )
)
v. )
)
TOWN OF FALMOUTH )
)
and the )
)
TOWN MANAGER, Dave Whitlow, )
)
Respondents. ) DECISION AND ORDER
________________________________)
)
Case No. 79-18 )
)
TOWN OF FALMOUTH )
)
and )
)
DAVE WHITLOW, in his capacity )
as Town Manager of the Town of )
Falmouth, )
)
Complainants, )
)
v. )
)
TEAMSTERS LOCAL UNION NO. 48, )
)
Respondent. )
________________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed August 22, 1978 by Teamsters Local Union
No. 48 ("Local 48"), and by way of a prohibited practice complaint filed
September 13, 1978 by the Town of Falmouth and Town Manager Dave Whitlow
("Town"). The Town's answer to Local 48's complaint was filed September 12,
1978, and Local 48's answer to the Town's complaint was filed September 27,
1978.
A pre-hearing conference at which the two cases were consolidated for
hearing and determination was held on October 4, 1978, Alternate Chairman
Donald W. Webber presiding. As a result of this pre-hearing conference,
Alternate Chairman Webber issued on October 10, 1978 a Pre-Hearing Conference
Memorandum and Order, the contents of which are incorporated herein by
reference.
A hearing on the cases was hold on February 13, 1979, Chairman Edward H.
Keith presiding, with Employer Representative Paul D. Emery and Employee
Representative Michael Schoonjans. Briefs arguing the issues arising in the
cases were all filed by March 19, 1979, and the Board proceeded to deliberate
over the cases at a conference hold on May 15, 1979.
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JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board In these cases, and we conclude that the Board has jurisdiction to hear
the cases and render a decision as provided In 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Teamsters Local Union No. 48 is a public employee labor
organization and a public employee bargaining agent as
defined in 26 M.R.S.A. 962(2). The Town of Falmouth,
Maine, and Town Manager Dave Whitlow are public employers
as defined in 26 M.R.S.A. 962(7).
2. By letter dated October 6, 1977, Local 48 notified the
Town that a majority of the employees in certain job
classifications in the Town's Public Works Department
had signed cards Indicating that they wished to be represented
by Local 48 for purposes of collective bargaining. Local 48
also notified the Town by letter dated October 6, 1977 that
if Local 48 become the Public Works Department employees'
bargaining agent, it would seek increased wages and benefits
requiring additional appropriations of money by the Town.
3. At an election held January 27, 1978, Local 48 was certified
as the bargaining agent for a bargaining unit composed of
certain job classifications in the Town's Public Works Depart-
ment.
4. In a letter dated March 16, 1978, Local 48 notified the Town
that Local 48 wished to enter into negotiations for the Public
Works Department bargaining unit. By letter dated April 3,
1978 to Local 48, the Town Manager stated that since Local 48
had not complied with the 120 day notice requirement in 26
M.R.S.A. 9650), the Town could not bargain with the union
over wages, rates of pay or any other matter requiring appro-
priation of money for the July 1, 1978 - June 30, 1979 fiscal
year.
5. In March, 1977, the Town amended its charter to change its
fiscal year and fiscal operating budget to a period of July 1 -
June 30. Prior to this amendment, the Town's fiscal year had
run from January 1 - December 31. This change in fiscal years
in 1977 necessitated an interim six month budget, running from
January 1, 1978 to June 30, 1978.
6. Local 48 and the Town commenced negotiations over matters not
requiring the appropriation of money during May, 1978, with the
understanding that Local 48 would seek a ruling from the Board
on whether the union was entitled to negotiate economic items
for the 1978-79 fiscal year. In July, 1978, Local 48 requested
that the Executive Director of the Board give his opinion on the
issue. The Executive Director responded in a letter dated July
21, 1978, indicating that Local 48 was not entitled to bargain
economic items for the 1978-79 fiscal year because notice had
not been served on the employer at least 120 days prior to the
conclusion of the June 30, 1978 fiscal year.
7. Local 48 continued to Insist that the Town bargain over economic
matters for the 1978-79 fiscal year at the next bargaining
session, held August 2, 1978. Local 48 also wished to continue
negotiating non-economic Items for the fiscal year. The Town's
negotiators
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took the position that the Executive Director had ruled that
Local 48 was not entitled to negotiate economic matters for
the 1978-79 fiscal year, and that until the union removed its
economic demands from the table, the Town would not continue
to bargain over noneconomic subjects. The negotiations then
broke down.
8. Local 48 again requested in January, 1979 that the Town enter
into negotiations. At a bargaining session held January 30,
1979, Local 48 stated that It would not press its economic
demands for the 1978-1979 fiscal year until the Board decided
whether it was entitled to do so. The Town responded that
since the union would not press its economic demands, the Town
was willing to negotiate non-economic matters for the 1978-1979
fiscal year.
DECISION
Local 48 contends that the Town violated 26 M.R.S.A. 964(1)(E) by
refusing to bargain over economic items to be effective for the 1978-79 fiscal
year. The Town defends on the ground that Local 48 failed to serve a timely
120 day notice of request for collective bargaining in accordance with the
last paragraph in 26 M.R.S.A. 965(1), thereby obviating the Town's obliga-
tion to bargain over matters requiring the appropriation of money for the
1978-79 fiscal year. Conversely, the Town argues that Local 48 violated 26
M.R.S.A. 964(2)(B) by insisting that the Town bargain monetary matters for
the 1978-79 fiscal year. Local 48 urges that the 120 day notice provision in
26 M.R.S.A. 965(1) should not apply to a request to negotiate the initial
agreement between a union and a public employer, and that even if the notice
requirement does apply, Local 48 should not be found in violation of the
statute in this case of first impression.
After carefully considering these matters, we are of the opinion, for the
reasons discussed below, that Local 48 was required to serve, once it became
the bargaining agent, a 120 day written notice of request for collective bar-
gaining before the Town became obligated to negotiate monetary matters for the
1978-79 fiscal year. Since Local 48 failed to serve timely notice, the Town
lawfully refused to bargain over monetary items for that fiscal year. By
insisting that the Town negotiate monetary items for the 1978-79 fiscal year,
Local 48 violated 26 M.R.S.A. 964(2)(B). Additionally, the Town committed
a technical violation of 26 M.R.S.A. 964(1)(E) by refusing at the August 2,
1978 bargaining session to bargain over noneconomic matters for the 1978-79
fiscal year as long as the economic matters remained on the bargaining table.
We will order remedies designed to effectuate the policies of the statute.
I
Section 965(1) of the Municipal Public Employees Labor Relations Act, 26
M.R.S.A. 961, et seq. ("Act") provides in pertinent part:
Whenever wages, rates of pay or any other matter requiring
appropriation of money by any municipality are included as
a matter of collective bargaining conducted pursuant to this
chapter, it is the obligation of the bargaining agent to
serve written notice of request for collective bargaining on
the public employer at least 120 days before the conclusion
of the current fiscal operating budget.
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The purpose of the 120 day notice required by Section 965(1) is to provide the
public employer with notice that financial items will be brought to the bar-
gaining table, so that the employer can plan for the appropriate contingencies
in the municipal budgeting process.
Presented for our determination in these cases are the following issues
of first impression: (1) does the 120 day notice requirement in Section 965(1)
apply only to negotiations for successor agreements, and (2) can a notice of
request for collective bargaining served before the union becomes the bargain-
ing agent for the bargaining unit in question constitute timely notice under
Section 965(1)? We answer both questions in the negative.
II
We cannot agree with Local 48's argument that the 120 day notice require-
ment in Section 965(1) applies only to negotiations for successor agreements.
While Local 48 presents good reasons why the notice requirement should apply
only to successor negotiations,[fn]1 the pertinent language of Section 965(1)
plainly does not distinguish between negotiations for the initial agreement
and negotiations for successor agreements. The language of the Section
instead clearly applies to negotiations for both an initial or a successor
agreement. Given the clarity of the language in question, we do not feel free
to construe the Section to apply only to successor negotiations. If the
language of Section 965(1) should be changed to apply only to negotiations for
successor agreements, then such changes are within the province of the Legis-
lature and not this Board. See Erskine Academy Teachers Association v.
Erskine Academy Board of Trustees, M.L.R.B. No. 79-06 (1979).
Similarly, we cannot agree with Local 48's contention that its October 6,
1977 notice of request for collective bargaining, served before Local 48
became the bargaining agent for the Public Works Department bargaining unit,
constitutes timely 120 day notice under Section 965(1). While we agree with
Local 48's argument that the October 6th notice was as adequate to give the
Town notice of the intent to negotiate financial items as any notice served
after Local 48 became the bargaining agent, Section 965(1) provides that "the
bargaining agent" is obligated to serve the notice. Here Local 48 did not
become the bargaining agent until January 27,
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1 Among these reasons is that employees' rights to change bargaining agents
would be severely hampered if the 120 day notice provision applies to
negotiations for the initial agreement. While Local 48's argument has
some validity, the severity of the impact of the 120 day notice require-
ment on employees' rights to change bargaining agents is reduced by our
ruling in In re Decertification Election, Old Orchard Beach Police
Department (Decision and Order) (M.L.R.B. Dec. 16, 1974.) In that case we
held (p. 3):
In Maine, with a 90-60 day rule for filing a decertification petition,
it is impossible for a newly certified union to serve notice as required
in 26 M.R.S.A. 965, par. 1. Where the 120 day notice was given by a
prior union which is subsequently decertified, the 120 day notice
required by statute will be valid with respect to a subsequently certi-
fied bargaining agent and meet the requirements of 26 M.R.S.A. 965,
Par. 1.
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1978. Again we feel constrained to follow the plain language of the Act, and
hold that only a bargaining agent has standing to serve the 120 day notice.
The proper forum for presenting the argument that a union engaged in organ-
izing a unit of employees should be able to serve a 120 day notice before it
becomes the bargaining agent again is the Legislature. In short, while we do
not intend to intimate that there can never be mitigating circumstances
excusing a failure to file a timely 120 day notice, we believe that bargaining
agents and public employers must be careful to comply strictly with the plain
language of Section 965(1). See M.S.A.D. No. 43 Teachers Association v.
M.S.A.D. No. 43 Board of Directors, M.L.R.B. No. 79-42 (1979); M.S.A.D. No. 68
Teachers Association v. M.S.A.D. No. 68 Board of Directors, M.L.R.B. No. 79-22
(1979).
Turning to the merits of Local 48's complaint, we find that because Local
48 failed to serve timely a 120 day notice of request for collective bargain-
ing, the Town was not obligated to bargain matters requiring the appropriation
of money for the 1978-79 fiscal year. Local 48 became the bargaining agent
for the unit of Public Works Department employees on January 27, 1978. The
concluding date of the Town's then-current fiscal operating budget was
June 30, 1978. Timely notice of a request for bargaining thus had to be
served on or before March 3, 1978. Although Local 48 had ample time to serve
timely notice after it was certified as bargaining agent, it failed to serve
until March 16, 1978, Local 48's notice thus was not timely under Section
965(1).
The result of this failure to serve timely notice is that wages, rates of
pay or any other matter requiring the appropriation of money for fiscal year
1978-79 in effect became non-mandatory subjects of bargaining. The Town could
lawfully refuse under Section 965(1)(C) of the Act to bargain over such
matters for the 1978-79 fiscal year. We accordingly conclude that the Town's
refusal to negotiate economic matters for the 1978-79 fiscal year does not
constitute a violation of Section 964(1)(E) of the Act.
An entirely different question is presented by the Town's position at the
August 2, 1978 bargaining session, however. At that session, the Town took
the position that it would not continue to negotiate noneconomic items for
fiscal year 1978-79 until Local 48 removed the economic items from the
bargaining table. A public employer is obligated to negotiate noneconomic
items for the fiscal year regardless whether the bargaining agent serves a
timely 120 day notice:
"It is the opinion of this Board that it is the obligation
of the City of South Portland to negotiate with the bargain-
ing agent on any and all items of the Collective Barqaininq
Agreement for both of these bargaining units which do not
encompass or require the appropriation of money by the munici-
pality as is explained in 965, Par. 1, Sub-Par. E, of the
Public Employees Labor Relations Act. Consequently, the response
of the attorney for the public employer, in this case, is
clearly inconsistent with the obligations imposed under 965,
Par. 1, Sub-Par. C, of the Public Employees Labor Relations Act
since it states a refusal to meet for "any" collective bargain-
ing purposes. There are many items on which the parties could
have negotiated which did not require the appropriation of money
or the requisite 120 day notice contemplated in the Act; con-
sequently, we find that there was a clear violation of the
parties' obligation to bargain."
Local 1828, Council 74, AFSCME v. City, of South Portland. M.L.R.B. Nos.
73-13 and 73-14 (p. 18) (1973).
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We have held on many occasions that a refusal to negotiate over items
about which the employer or bargaining agent is obligated to bargain consti-
tutes a per se violation of the duty to bargain imposed by Sections 964 and
965 of the Act. See, e.g., Lake Teachers Association v. Mount Vernon School
Committee, M.L.R.B. No. 78-15 (1978). The fact that Local 48 refused to
remove its economic demands from the table does not excuse the Town's obliga-
tion to negotiate non-economic items for the 1978-79 fiscal year. This obli-
gation continued unabated despite Local 48's insistence on the economic
matters, and regardless whether or not Local 48 was formally pursuing before
the Board its inquiry regarding the lawfulness of Local 48's position.
Although the Town was entirely justified in refusing to bargain economic
matters for the 1978-79 fiscal year, it should have remained willing to nego-
tiate non-economic matters at the August 2, 1978 session, as it had done at
earlier bargaining sessions.
We note, however, that the Town's position at the August 2, 1978 session
is understandable, given Local 48's continued insistence on the economic
items, even after Local 48 had received the Executive Director's July 21, 1978
letter indicating that the union could not bargain on financial matters since
a timely 120 day notice had not been served. We accordingly conclude that the
Town's August 2, 1978 refusal to negotiate non-economic items for fiscal year
1978-79 until Local 48 removed the economic issues from the table constitutes
a technical violation of Section 964(1)(E) of the Act.
III
Turning to the merits of the Town's complaint, we find that Local 48
violated Section 964(2)(B) of the Act by insisting that the Town bargain
economic items for the 1978-79 fiscal year. Local 48 insisted from the
commencement of negotiations in the spring of 1978 to August 2, 1978 that
the Town negotiate over matters requiring the appropriation of money. This
insistence continued even after the Executive Director of the Board in a
letter dated July 21, 1978 suggested that Local 48 was not entitled to bargain
money matters for the 1978-79 fiscal year. Local 48's insistence was the
major contributing cause to the break-down in negotiations on August 2, 1978,
which resulted In a five month hiatus in bargaining.
We have consistently held that a party commits a per se violation of the
duty to bargain by insisting that a non-mandatory subject of bargaining be
negotiated. See, e.g., Board of School Directors of M.S.A.D. No. 24 v. Van
Buren Custodian/Bus Driver/Maintenance Personnel Association, M.L.R.B. No.
79-16 (1979); Brunswick School Board v. Brunswick Teachers Association,
P.E.L.R.B. No. 75-19, appeal docketed, No. CV-76-42 (Kennebec County Super.
Ct. Feb. 12, 1976). These holdings are consistent with the principle
enunciated in N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342
(1958), that ". . . it is lawful to insist upon matters within the scope of
mandatory bargaining and unlawful to insist upon matters without . . ."
356 U.S. at 349. The rational underlying this venerable labor law principle
is that insistence upon bargaining non-mandatory subjects ". . . is, in
substance, a refusal to bargain about the subjects that are within the scope
of mandatory bargaining." 356 U.S. at 349.
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As discussed above, economic issues for fiscal year 1978-79 were in
effect non-mandatory subjects of bargaining, since Local 48 failed to serve a
timely 120 day notice for the 1978-79 fiscal year. We are sympathetic with
Local 48's argument that it should not be held in violation of the Act since
the issues it raised regarding Section 965(1) were of first impression.
However, examination of a few of the many cases applying the Borg-Warner rule
reveals that the issues involved in the cases frequently could arguably be
called questions of first impression. The lesson to be gleaned from these
cases is that one of the risks a party assumes when it decides to insist upon
bargaining a particular topic is that its insistence will be held to be
violative of the Act. We conclude that the fact that issues of first
impression may be involved does not excuse a party's insistence that non-
mandatory subjects be negotiated. We accordingly conclude that Local 48's
insistence upon bargaining economic items for the 1978-79 fiscal year
constitutes a violation of 26 M.R.S.A. 964(2)(B).
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 the provisions of 26 M.R.S.A. 968, it is hereby ORDERED:
1. That the Town of Falmouth and its Town Manager, and their repre-
sentatives and agents, cease and desist from refusing to bargain
non-economic matters for the 1978-79 fiscal year.
2. That Teamsters Local Union No. 48, and its representatives and
agents, cease and desist from Insisting that wages, rates of pay
or any other matter requiring appropriation of money be negotiated
for the 1978-79 fiscal year.
3. That the Town of Falmouth and its Town Manager and Teamsters Local
Union No. 48 take the affirmative action of resuming negotiations
over non-economic items for the 1978-79 fiscal year for the members
of the Public Works Department bargaining unit, unless the parties
have already reached agreement on these non-economic matters.
4. That the parties within 30 days of the date of this Decision and
Order notify in writing the Maine Labor Relations Board at its
offices in Augusta, Maine of the steps they have taken to comply
with this Decision and Order.
Dated at Augusta, Maine this 6th day of June, 1979.
MAINE LABOR RELATIONS BOARD
/s/____________________________________ H
Edward H. Keith
Chairman
/s/____________________________________
Paul D. Emery
Employer Representative
/s/____________________________________
Michael Schoonjans
Employee Representative
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