Interim Decision and Order, March 2, 1979 Decision and Order, August 24, 1979 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-29 ________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) STATE, COUNTY AND MUNICIPAL ) WORKERS IN THE STATE OF MAINE, ) ) Complainant, ) ) v. ) INTERIM DECISION AND ORDER ) CITY OF BANGOR AND ITS PERSONNEL) DIRECTOR, JOHN R. PERRY, ) ) Respondents. ) ________________________________) Teamsters Local Union No. 48 ("Local 48") filed this prohibited practice complaint with the Maine Labor Relations Board ("Board") on October 13, 1978. Respondents City of Bangor, and its Personnel Director, John R. Perry, ("City") filed an answer and motion to dismiss on October 23, 1978. A pre-hearing conference was held by Alternate Chairman Donald W. Webber, who issued a Pre-Hearing Conference Memorandum and Order on November 30, 1978, the contents of which are incorporated herein by refernce. Pursuant to this Order, the Board determined that it would decide the motion to dismiss as an issue of law and directed that memoranda of law be submitted on the motion. JURISDICTION Neither party has challenged the jurisdiction of the Board and we con- clude that the Board may hear and render a decision in this case as provided in 26 M.R.S.A. 968(5). DECISION The City urges that the complaint be dismissed because it is moot and because it fails to state a claim. Local 48 argues to the contrary. The motion is denied for the reasons below. A prohibited practice complaint alleginq a violation of the duty to bar- gain in good faith is not automatically rendered moot by the subsequent execution of a collective bargaining agreement. In Glover v. M.S.A.D. #68 Bd. of Directors, MLRB No. 77-07 (1977), we indicated that subsequent acts of the parties do not mitigate prior unlawful conduct. (This is not to say, in contrast, that a violation cannot be waived - it can be.) The rationale is explained in Massillon Publishing Co., 215 NLRB 318, 88 LRRM 1040 (1974): -1- ______________________________________________________________________________ "[I]t is well-settled that an employer's execution of a contract with a union with which it had previously re- fused to bargain in violation of the Act does not render the issue of such violation moot. This principle is premised on the theory that the [NLRB] does not oversee the settlement of private disputes but, rather, is en- trusted with the responsibility of protection public rights under the Act. These rights are not protected, and the effects of the unfair labor practices found are not expunged, merely because of a private settlement of the dispute by the parties, which may or may not serve to remedy the adverse effect on the Section 7 [29 U.S.C. 157] rights of the employees." See also NLRB v. American Nat'l Ins. Co., 343 U.S. 395, 399 n.4, 72 S. Ct. 824, 30 LRRM 2147 (1952); General Electric Co. v. NLRB, 400 F.2d 713, 727 (5th Cir. 1968), cert. denied 394 U.S. 904 (1969). Moreover, the public and the charginq party are entitled to the protection of future rights by the requirement of continued compliance that a cease and desist order provides. Schuylkill Metals Corp., 218 NLRB 317, 89 LRRM 1972 (1975).[1] In one of its first decisions, Banqor Educ. Ass'n v. Bangor School Comm. PELRB No. 73-12 (1973), the then Public Employees Labor Relations Board stated that "it would be impossible to determine that the parties had refused to bar- gain yet had agreed upon a collective bargaining agreement." We are unwilling to apply that broad statement to this case for the above reasons. This does not necessarily preclude a finding that there has been a waiver of the right to object, however. See Caribou Teachers Ass'n v. Caribou School Dep't, MLRB No. 77-34 (1978), rev'd on other grounds, No. C-78-56 (Aroostook County Super. Ct., Aug. 3, 1978), appeal docketed, No. AR-78-12 (Sup. Jud. Ct., Nov. 1, 1978). Since it is possible that the facts of the complaint, if true, could constitute a violation, the motion addressed to its sufficiency is denied. Accordingly, a hearing will be scheduled on the complaint and the defenses. ORDER On the basis of the foregoing and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(5), it is ORDERED: _______________ 1 The New Jersey Supreme Court has recently thoroughly reviewed the concept of mootness in the failure to bargain in good faith context. See Galloway Bd. of Educ. v. Galloway Educ. Ass'n, 393 A.2d 218, 225-29, 100 LRRM 2250, 2254-58 (N.J. Sup. Ct. 1978). -2- ______________________________________________________________________________ That the motion to dismiss is denied. Dated at Augusta, Maine, this 2nd day of March, 1979. MAINE LABOR RELATIONS BOARD /s/____________________________________ Edward H. Keith Chairman /s/____________________________________ Michael Schoonjans Employee Representative /s/____________________________________ Paul D. Emery Employer Representative -3- ______________________________________________________________________________ August 24, 1979 Decision and Order STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-29 ___________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) STATE, COUNTY AND MUNICIPAL ) WORKERS IN THE STATE OF MAINE, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) CITY OF BANGOR AND ITS PERSONNEL ) DIRECTOR, JOHN R. PERRY, ) ) Respondents. ) ___________________________________) Teamsters Local Union No. 48 ("Local 48") filed this prohibited practice complaint with the Maine Labor Relations Board ("Board") on October 13, 1978. Respondents City of Bangor, and its Personnel Director, John R. Perry, ("City") filed an answer and motion to dismiss on October 23, 1978. A pre-hearing conference was held by Alternate Chairman Donald W. Webber, who issued a Pre-Hearing Conference Memorandum and Order on November 30, 1978, the contents of which are incorporated herein by reference. The Board denied the motion to dismiss in an Interim Decision and Order dated March 2, 1979, the contents of which are incorporated herein by reference. Local 48 was represented by Jonathan G. Axelrod, Esq., and the City by Malcolm E. Morrell, Jr., Esq., who filed post-hearing briefs. The Board met and decided the case on August 2, 1979. JURISDICTION Jurisdiction of the Board lies in 26 M.R.S.A. 968(5) and is not challenged. FINDINGS OF FACT 1. Complainant Local 48 is the recognized bargaining agent for all police officers of the Bangor Police Department. 26 M.R.S.A. 962(2). The City is the public employer of the police officers 962(7). 2. The first of many negotiating sessions for a successor collective bargaining agreement to begin on January 1, 1978, took place on October 26, 1977. Negotiations procedures agreements ("ground rules") were reached at that time. One of the ground rules was that tentative agreements ("TA's") would be initialed and were tentative pending ratification by the union members and by the City Council. 3. The expirIng 1977 collective bargaining agreement contained a provision for a clothing allowance of $250.00 per year for "Plain Clothes" officers. Local 48 proposed an increase to $300-00 per year. -1- ______________________________________________________________________________ 4. Mediation procedures took place on January 10 and 11, 1979. During the mediation the parties reached a TA on a proposed 1978-1979 agreement. The TA was written out by the mediator and contained eight items. The writing contained the condi- tion: "Subject to acceptance of the membership." Item (1) was a contract duration of two years. Item (4) was a clothing allowance of $275.00. Item (8) listed wage increases for the first and second years of the proposed contract. 5. Respondent John R. Perry, who was the chief negotiator for the City, testified that he specifically stated at the time the eight-item TA was reached that the clothing allowance increase from $250.00 to $275.00 was a one-time offer which would be automatically withdrawn if the membership did not ratify the whole package. He also testified that the two year wage offer was also on the table for just the day. As far as Perry was concerned the other items were tentative agreements which would survive a vote of rejection. Union steward Robert O'Halloran, Jr., testified that he thought all eight items would be rejected if the membership rejected any of the package. Union negotiator Richard Peluso testified that the only condition on the eight-item package was that Perry would not guarantee retro- activity to January 1, 1978, if the package was not accepted. He stated that nothing was stated by Perry to make the clothing allowance conditional. He also stated that he might have initialed some of these items but could not find the evidence. 6. Within a few days the membership voted to reject the package proposal. Peluso told Perry by phone that the members had rejected the package because the wage proposal was inadequate in the first year and because they preferred a one-year agreement. Peluso indi- cated that he would file for fact-finding on these two issues. Perry acknowledged that this was satisfactory to him. The two nego- tiators did not, however, discuss any other items. Peluso assumed that the clothing allowance offer was continuing. Perry assumed that it was being dropped by Local 48. 7. The subject of clothing allowance was not raised again until the two negotiators met on April 18, 1978 to discuss the fact finders' report. Perry again offered the mediation package with the $275.00 clothing allowance proposal again being viable "only today." Peluso indicated that this was not his impression of the status of this item. He said he would have submitted it to fact-finding if he had thought that it was not a continuing agreement. Perry remained adamant. 8. Local 48 then began bargaining for the clothing allowance increase. When no agreement was reached, Peluso then requested interest arbi- tration under 26 M.R.S.A. 965(4). He did not list the item in Local 48's request, however, because he was advised by a Board attorney that he could not include any issue not included in fact- finding. At the start of the arbitration hearing Peluso attempted to raise the clothing allowance as an issue. The City, however, objected to this issue and Local 48 accordingly dropped the matter. 9. A two-year collective bargaining agreement for 1978-79 was eventually signed and ratified. It did not contain the clothing allowance in- crease. Peluso signed it while orally claiming his intention to file a prohibited practice complaint over this issue. The City Council was aware of this claim when it ratified the agreement. -2- ______________________________________________________________________________ DECISION Local 48 contends that the City failed to bargain in good faith in accordance with 26 M.R.S.A. 965(1)(C) in violation of 964(1)(E) by with- drawing a tentative agreement (TA) reached on January 11, 1978 regarding a clothing allowance increase. The City contends that that TA was viable for one ratification vote only and that if rejected the TA was withdrawn. Even if a TA was reached and with- drawn, the issue of waiver of the right to object would be raised. We conclude that this complaint should be dismissed because upon a preponderance of the evidence we are of the opinion that an unconditional tentative agreement was not reached. The Board considers the withdrawal of a TA to be strong evidence of failure to bargain in good faith. See, e.g., O'Neil v. M.S.A.D. #64 Board of Directors, MLRB No. 77-06 (1977). Our inquiry in this case stops with the factual premise of Local 48's theory, however, because we simply do not conclude that an unconditional TA regarding a clothing allowance increase was reached. In the balance we find that the clothing allowance increase TA was not intended by the City to survive the negative ratification vote on the mediator's package. The matter is far from clear-cut, however; the City's case was not strongly persuasive. But with the burden on Local 48 to establish such an agreement, see Portland Police Benevolent Association v. City of Portland, MLRB No. 74-22 (1974), we must resolve the issue against Local 48. Our conclusion is based on the facts that: (1) City negotiator Perry stated at the mediation that this item was a limited offer; (2) Local 48 negotiator O'Halloran understood that all items of the package were conditional while Peluso was uncertain as to the possibility of having initialed TA's on these items; (3) the general confusion surrounding the intent of the statement in the mediator's document that the package was conditioned upon the vote of the members; and (4) the lack of an initialed TA on the clothing allowance increase in accordance with the ground rules. While all of Perry's testimony was not entirely consistent, we find his testimony regarding the discussion surrounding the creation of the package TA to be credible enough to at least counter Peluso's version of the discussion. This alone is enough to dismiss the complaint. O'Halloran's recollection adds a third version which simply adds to the confusion. Moreover, the mediator's written TA stated that the package was "Subject to acceptance of the member- ship." The clear import of this writing is that all eight items would expire if the membership rejected the package. Peluso and Perry each testified to understandings inconsistent with this, however. Peluso was unsure whether he had initialed some of the eight items of the package and could not find a copy of the document which would reflect whether he had or not. In any event, he believed that only retroactivity would be a continuing issue if the package were to be rejected. In contrast to both these -3- ______________________________________________________________________________ explanations, Perry stated that most of the items of the package were agreed to and only the size of the wage increase and the clothing allowance increase were limited agreements. Indeed the other items were later incorporated into the final contract. The resulting confusion and conflict is not to be unexpected, however, in a verbal reconstruction of a discussion in the mediation milieu where positions change back and forth frequently and rapidly. It is for this reason that parties traditionally rely on TA's that are either signed or initialed. Indeed, it is probably unlikely that a TA can be convincingly proved in the absence of such a showing. Our disposition of the case on this basis makes it unnecessary to reach the issue of waiver. In conclusion, the complaint should be dismissed because the tentative agreement concerning a clothing allowance increase expired when the member- ship rejected the package proposal. ORDER This prohibited practice complaint is hereby dismissed. Dated at Augusta, Maine, this 24th day of August, 1979. MAINE LABOR RELATIONS BOARD /s/____________________________________ Edward H. Keith Chairman /s/____________________________________ Kenneth T. Winters Alternate Employer Representative /s/____________________________________ Michael Schoonjans Employee Representative -4- ______________________________________________________________________________