Sanford Highway Unit, AFSCME v. Town of Sanford, No. 79-50,
aff'd by Superior Court CV-79-171, aff'd by Law Court 411 A.2d 1010. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-50 ________________________________________ ) SANFORD HIGHWAY UNIT of Local 481, ) Council No. 74, American Federation ) of State, County and Municipal ) Employees, AFL-CIO, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF SANFORD and SELECTMEN, ) Norman S. Hall, Emile D. Cote, ) Gerard P. Savage, Jonathan L. Carter, ) and TOWN NEGOTIATOR, Charles Ackerman, ) ) Respondents. ) ________________________________________) This case comes to the Maine Labor Relations Board ("Board") by way of a prohibited practice complaint filed February 8, 1979 by Council No. 74 of the American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME" or "the union"). On February 23, 1979 AFSCME filed an amended prohibited practice complaint, accompanied by a request that the Board conduct an expedited hearing on the complaint and amended complaint. The Board decided that in light of the allegations raised in the complaints, an expedited hearing pursuant to 26 M.R.S.A. 968(5) and Rule 4.13 of the Board's Rules and Procedures was appropriate. By letter dated February 23, 1979, the Board notified the parties that an expedited hearing would be held, that there would be no pre-hearing conference on the case, and that the time for filing an answer to the complaints had been accelerated. Respondents' answer was filed February 28, 1979. Hearings on the case were held in Augusta, Maine, on March 2, 6, 8, 12 and 13, 1979, Board Chairman Edward H. Keith presiding, with Paul D. Emery, Employer Repre- sentative, and Michael Schoonjans, Employee Representative. Briefs arguing the issues raised in the case were filed on March 26, 1979, and the Board proceeded to deliberate over the case on March 27, 1979. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations 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 evidence introduced at the hearings, as well as the complaints and response, the Board finds: 1. Complainant AFSCME was at all times material herein the certified bargaining agent as defined in 26 M.R.S.A. 962(2) for a bargaining unit of public employees employed in the Town of Sanford's ("Sanford" or "the Town") Highway Department. 2. Respondents Town of Sanford, the Selectmen of the Town of Sanford and the Town's Negotiator are public employers within the meaning of 26 M.R.S.A. 962(7). -1- _______________________________________________________________________________________ 3. At all times material to this case, a collective bargaining agree- ment with a term of January 1, 1977 through January 1, 1979 ("the agreement") was in effecct between AFSCME and Sanford. The agree- ment governed the terms and conditions of employment of those employees in the Town's Highway Department bargaining unit. 4. On September 5, 1978, the bargaining teams for AFSCME and Sanford commenced negotiations for a collective bargaining agreement to succeed the agreement due to expire on January 1, 1979. Subsequent negotiating sessions were held on September 19, October 4, December 11, 1978 (with a mediator), January 31, February 7, and February 20, 1979. 5. At the September 5th bargaining session, AFSCME submitted written proposals for six changes in the agreement. Among these proposals was a proposal that each employee's hourly salary be increased by approximately 75 cents in 1979. Sanford stated that it would submit its proposals and counterproposals at the next bargaining session. 6. At the September 19th bargaining session, Sanford's chief negotiator, Charles Ackerman, stated that the Town wished to propose no changes in the language of the agreement, and offered a 6 percent increase in salary for 1979. Mr. Ackerman indicated that a 6 percent salary increase would amount to a yearly salary increase in 1979 of approxi- mately $600.00 per employee, or an hourly increase of approximately 29 cents per employee. 7. Upon receipt of Sanford's wage offer, AFSCME caucused to consider the proposal. When AFSCME returned to the bargaining table, it proposed a 31 cent per hour per employee salary increase, the upgrading of a job classification, some language regarding job assignments, and a tool allowance for mechanics of $5.00 per week. At that point, Mr. Ackerman stated that AFSCME misunderstood Sanford's salary offer, explaining that the offer was for a 6 percent increase in the gross salary figure shown on each employee's 1978 W-2 form, a sum which would amount to an actual 1979 salary increase of approximately 10 cents per hour per employee. Mr. Ackerman indicated that Sanford's proposal was a firm offer. 8. In 1978, the employees in the bargaining unit received, pursuant to the agreement, quarterly salary increases of 13 cents per hour per employee, for a yearly salary increase of 52 cents per hour per employee. The purpose of the salary increase was to lift the base salaries of the employees to a level approximating the salaries paid for performance of similar work in the Sanford area, while the reason for implementing the total increase on a quarterly basis was to reduce the financial impact of the salary increase on the Town. Because the increase was implemented on a quarterly basis, the employees' 1978 W-2 forms reflected only 32 cents of the 52 cent increase. 9. Sanford's position at the September 19, 1978 bargaining session thus was that its proposed 6 percent salary increase for 1979 would include the 20 cents per hour increase negotiated for 1978 but not reflected in the employees' 1978 W-2 forms. The "new money" which the employees would receive in 1979 under Sanford's proposal would amount to approxi- mately 9 cents per hour per employee, or approximately a 2 percent increase over the rate of pay received at the end of 1978. The Town had not placed any limits on the amounts of money its negotiator could offer AFSCME for 1979 salaries, but had indicated to AFSCME that the Highway budget would be reduced. 10. After hearing the explanation of Sanford's proposal, AFSCME's bargaining team stated that they could not agree to the proposal, and requested that Sanford provide written counterproposals at the next bargaining session. 11. Sanford presented no written counterproposals at the October 4, 1978 bargaining session, but did verbally reiterate its offer of a 6 percent salary increase based on the employees' 1978 W-2 forms. AFSCME again requested that Sanford put any counterproposals it wished to make in writing, and stated that the employees were becoming upset and frustrated at the lack of progress in negotiations. The parties then discussed the -2- _______________________________________________________________________________________ proposals presented by AFSCME on September 5, 1978. Sanford's position on each of these proposals was that because the proposals represented additional costs, Sanford could not agree to the pro- posals. In response to a question by Kenneth Walo, AFSCME's chief negotiator, as to what the union was supposed to do in light of Sanford's positions, Mr. Ackerman stated that AFSCME would take these positions anywhere it wanted to - to mediation, fact finding or arbitration - and the Town's positions would not change. 12. By letter dated October 19, 1978 to Mr. Walo, Mr. Ackerman offered an 8 cent wage increase per hour per employee. The letter contains no other counterproposals to AFSCME's proposals. 13. On November 28, 1978, Sanford's selectmen informed Mr. Walo that pursuant to Article 26 of the agreement, the Town would terminate the agreement on January 2, 1979. 14. The selectmen also notified AFSCME by letter dated November 28, 1978 that the town intended to subcontract Highway Department work, which would necessitate the lay-off of some permanent Highway employees. Upon receipt of this letter, Mr. Walo phoned the selectmen to schedule a meeting to discuss the Town's subcontracting intentions. After speaking to two of the selectmen, Mr. Walo understood that the select- men were not seriously considering the subcontracting of bargaining unit work. To confirm this understanding, Mr. Walo on December 1, 1978 wrote to the selectmen regarding the December 1, 1978 telephone con- versation. The selectmen replied to this letter on December 5, 1978, stating that Mr. Walo misunderstood the telephone conversation and that the November 28, 1978 letter concerning the Town's subcontracting intentions should not be disregarded. 15. On November 14, 1978, Mr. Walo requested pursuant to 26 M.R.S.A. 965(2) that the Executive Director of the Board assign a mediator to the bar- gaining dispute between AFSCME and Sanford. A mediator was assigned, and a mediation session was held on December 11, 1978. 16. At the commencement of the December 11 mediation session, Mr. Ackerman presented approximately 20 new contract proposals. Mr. Walo objected to the introduction of the proposals at a mediation session, on the ground that the proposals had not previously been submitted to the union. After the mediator stated that he believed the presentation of new proposals at mediation was improper, Mr. Ackerman withdrew the proposals. 17. The mediator then conferred with each party separately in order to ascertain the parties' bargaining positions. The Town remained firm on its 8 cent salary increase offer. After consulting with AFSCME's bargaining team, the mediator informed the Town's negotiator that he was unable to settle the agreement on the basis of the 8 cent offer, and the mediation session was terminated. 18. On December 18, 1978, Mr. Walo met with the selectmen and Mr. Ackerman to discuss the possibility that the Town would subcontract its rubbish collection operation performed by Highway Department employees. Mr. Walo was informed that the Town intended to subcontract the collection of rubbish if subcontracting would save the Town money, and that the Town had not yet obtained cost data regarding subcontracting. The selectmen and Mr. Ackerman also on December 18, 1978 provided in a letter to Mr. Walo that the agreement expiring on December 31, 1978 would be extended for a period of sixty days beginning January 1, 1979. 19. In mid January, 1979, Mr. Walo contacted the selectmen to request an informal meeting regarding the status of negotiations. The selectmen assented to the meeting, and inquired whether the Town's chief negotiator should be present. Mr. Walo stated that the purpose of the meeting was not to engage in collective bargaining, and replied that it was up to the selectmen whether Mr. Ackerman should be present. -3- _______________________________________________________________________________________ 20. The informal meeting was held January 23, 1979. Present were AFSCME's bargaining team and the selectmen. Mr. Walo informed the selectmen that the employees' anger and frustration over the Town's lack of movement in the negotiations was growing, and that he was having a difficult time controlling the employees. The selectmen told the union to put its proposals in writing. The union caucused and listed its proposals on a sheet of paper. The proposals were for a two-year agreement, with a 30 cent raise the first year and a 40 cent raise the second year, with an annual $250 tool allowance for mechanics and a change in the employees' Blue Cross/Blue Shield coverage. The selectmen accepted the list and stated that they would "cost out" the proposals. 21. On January 25, 1979, in the midst of a severe snowstorm, the select- men hired a private contractor to operate Town-owned "Walters" trucks for the purpose of assisting in snow removal during the storm. Upon learning of this action, several Highway employees returned to the Town garage and requested to meet with the selectmen over the sub- contracting of the trucks. The selectmen came to the garage and were informed by the union's shop steward that Highway employees who operated the "Walters" trucks in the past had received an additional 10 cents per hour in salary, and that the subcontracting of the trucks had deprived some of the employees of the opportunity to earn the addi- tional salary. The selectmen agreed to pay three Highway employees the additional 10 cents per hour during the storm. The private con- tractor continued to operate the trucks and the Highway employees returned to their snow removal duties. 22. The next negotiating session was held January 31, 1979. Present were AFSCME's bargaining team, the selectmen, and Mr. Ackerman. Mr. Ackerman stated that the union proposals would cost too much, and that the Town was maintaining its 8 cent per hour salary increase offer, with no retroactivity. In response to a question from Mr. Walo as to what the union was supposed to do about the Town's positions, Mr. Ackerman stated that you can go to fact finding, arbitration, or you can hit the bricks, and it won't matter to the Town. 23. On January 31, 1979, the selectmen received a letter signed by those Highway employees who were union officials, indicating that the employees were all resigning their union offices. Some of the Highway employees commenced picketing on January 31, 1979 during off-hours. 24. On February 1, 1979 the selectmen met with the employees at the Town garage. It is unclear whether this meeting was initiated by the Town's Road Commissioner or by the employees. The employees expressed their dissatisfaction with the progress of negotiations and stated that they felt a 30 cent per hour raise would be fair. The selectmen stated that they would consider the employees' concerns and would get back to the employees. The selectmen returned to the garage on February 2, 1979, and informed the employees that they could not make any agreements or assurances regarding the negotiations. On February 4, 1979, the four Highway mechanics phoned in sick and did not work that day. 25. Prior to the bargaining session on February 7, 1979, the selectmen instructed Mr. Ackerman to offer a 16 cent "new money" salary increase along with a $100.00 annual tool allowance for the mechanics and a pro- posal that the "incentive plan" under which the rubbish collectors worked be abolished. The selectmen advised Mr. Ackerman that they would be willing ultimately to agree to a 20 cent per hour increase. Mr. Ackerman stated that he would present the 16 cent offer although he knew that it would not settle the contract, and that he felt the Town should remain firm on its 8 cent offer. 26. At the commencement of the February 7, 1979 session, Mr. Walo served the prohibited practice complaint which initiated this case. Mr. Ackerman then presented the 16 cent salary increase package, stating that the offer was a "one-shot deal." Following the presentation, the selectmen -4- _______________________________________________________________________________________ told AFSCME's bargaining team to get back to the selectmen by the next morning on the offer. AFSCME reasonably understood as a result of Mr. Ackerman's and selectmen's statements that the 16 cent offer would remain open only until the next morning, and that the Town's position then would revert back to the 8 cent offer. The union did not accept the offer by the next morning. 27. On the evening of February 13, 1979, the Highway employees voted to refused to work the next day until the selectmen met with them to discuss the negotiations. Mr. Walo was present prior to the vote and advised the employees that any work stoppage or strike would violate Article 21 of the agreement as well as the laws of the State of Maine. 28. On February 14, 1979, the employees reported for work at the usual time and demanded to meet with the selectmen. After the selectmen refused to meet, the employees refused to work, spending the remainder of the day standing in the town garage or picketing. During the day, the selectmen, fearing that Town equipment might be vandalized, had the locks on the garage doors changed. The employees left the garage at the end of the day. That evening, Town personnel discovered that there had been some minor tampering with equipment in the garage. 29. On February 15, 1979, the employees again reported for work at the usual time and demanded to meet with the selectmen. The selectmen refused to meet, and the garage doors remained locked. The employees returned to their homes or resumed their picketing activities. 30. On February 15, 1979, AFSCME's Executive Director met on two occasions with the selectmen. The selectmen offered to negotiate that day, but were informed by the Executive Director that the union's chief nego- tiator would not be available to negotiate on February 15. The Exec- utive Director suggested a negotiation session on Friday, February 16, but was informed by the selectmen that each of them were scheduled to be out of town on the 16th. The selectmen agreed to meet sometime during the next week. 31. On February 16, 1979, the employees again arrived at the Town garage at the usual time for commencing work. The selectmen were not present, and the garage doors remained locked. Most of the employees then com- menced picketing in front of the Town Hall. At approximately 10:30 a.m., with several newspaper reporters and two television cameras recording the event, the selectmen appeared on the Town Hall steps, announced to the picketing employees that they were being given the opportunity to return to work, and stated that the employees would be discharged if they declined to return to work. The Chairman of the Board of Selectmen then read each employee's name, and, when the employee approached the selectmen, handed the employee his termination check. 32. Twenty-four of the twenty-seven employees in the Highway bargaining unit were discharged on February 16, 1979. The three employees who were not discharged had previously been excused from work for sick leave, workman's compensation leave, and vacation leave. 33. At the last bargaining session on February 20, 1979, AFSCME's regular bargaining team, which included three employees who had been discharged, appeared to negotiate. Mr. Ackerman handed Mr. Walo a letter terminating the agreement as of March 2, 1979, and stated that the Town would not negotiate while the discharged employees were present. Mr. Walo pro- tested that the Town could not dictate the composition of the union's bargaining team, but, after conferring with the members of the team, agreed to meet by himself with the Town. Mr. Walo proposed to negotiate the issue of reinstatement of the discharged employees, but the Town's position was that the dismissals were final and were not in any event a bargainable matter. The bargaining session was terminated. No agree- ment has been reached on a successor contract to the collective bargaining agreement with a term of January 1, 1977 through January 1, 1979. -5- _______________________________________________________________________________________ DECISION I. Procedural Issues During the five days of hearings on this case, the parties submitted a number of procedural motions for Board determination. We decided most of these motions on the record, but reserved our ruling on two of the motions. In addition, Respondents in their brief have requested that we reconsider our earlier ruling on one of Respond- ents' motions. The two motions upon which we reserved our rulings are (1) Respondents' motion to strike Paragraph IV.N. of Complainant's amended prohibited practice complaint, and (2) Complainant's motion to strike the testimony of Selectman Gerard Savage. Respondents have requested that we reconsider our denial of Respondents' motion to exclude from the record of this case a Report by a Board of Inquiry of the Maine Board of Arbitration and Conciliation. We have carefully considered these motions and have reached the following determinations: A. The Motion to Strike Paragraph IV.N. of the Amended Complaint. We have decided to deny this motion. Respondents argue that Paragraph IV.N. of the amended complaint must be stricken because it contains an allegation and request which are irrelevant, improper and absurd. Paragraph IV.N. alleges that the Town has engaged in a pattern of bad faith bargaining conduct with its employees over the past two years, and requests the Board to take cognizance of the prior prohibited practices found to have been committed by the Town. We deny Respondents' motion because whether or not a particular employer or union has been found to have engaged in prohibited practices in the recent past is a proper, relevant consideration when we are fashioning a remedy for a subsequent violation by that employer or union. See M.S.A.D. No. 68 Teachers Ass'n v. M.S.A.D. No. 68 Bd. of Dirs., M.L.R.B. No. 79-22 (1979). We do agree, however, with Respond- ents' argument to the extent that we believe it would be improper to give weight to any prior findings of prohibited practices when determining whether a charged party has committed any prohibited practices in a subsequent case. Accordingly, we will leave intact Paragraph IV.N. for possible reference in the event we are required to fashion a remedy against Respondents, but will give no consideration to the matters raised in that Paragraph when deciding whether Respondents have committed any pro- hibited practices. B. The Motion to Strike the Testimony of Selectman Savage. We deny this motion. Mr. Savage, the Chairman of the Sanford Board of Selectmen, refused during cross- examination to answer certain questions, asserting his Federal and State Constitutional privileges against self-incrimination. The cross-examination dealt with the notice given and the nature of the Board of Selectmen meeting at which it was decided to discharge the Highway employees. The basis of the assertion of the privilege against self-incrimination was that a willful violation of Maine's Right to Know statue con- stitutes a Class E crime. 1 M.R.S.A. 410. Complainant moved that Mr. Savage's testimony be striken, or, alternatively, that Mr. Savage's refusals to respond be treated as admissions to the questions asked. -6- _______________________________________________________________________________________ We believe that the assertions of the privilege against self-incrimination were based on real cause. The assertions accordingly cannot serve, even in an administrative proceeding, as the basis for striking the testimony of a witness, or as admissions to the questions posed. State v. Vickers, 309 A.2d 324 (Me. 1973); Brunswick Con- struction Co, Inc. v. Leonard, 149 Me. 426, 103 A.2d 115 (1954). C. The motion to exclude the Board of Inquiry Report. Upon reconsideration of our denial of this motion, we have decided that the motion should be granted. Prior to the announcement of our hearings on this case, Maine's Board of Arbitration and Con- ciliation convened, pursuant to 26 M.R.S.A. 916, a Board of Inquiry hearing on the causes of the labor dispute which gave rise to the instant case. The Board of Inquiry has forwarded a copy of its Report of this hearing to our Executive Director, in accordance with the requirements set forth in 26 M.R.S.A. 916. At the commencement of our hearing on March 2, 1979, Respondents moved to exclude the Board of Inquiry Report from the record of this proceeding, on the ground that the Board of Inquiry lacks jurisdiction to inquire into the causes of public sector labor disputes. We denied the motion. Respondents now urge on brief that we should reconsider our denial of the motion in light of the decision in School Comm. of Easton v. Easton Teachers Ass'n, Law Docket No. Ar-79-3 (Mar. 16, 1979). We find it unnecessary to decide whether the Easton decision requires exclusion of the Report from our record, because upon reconsideration we believe that the Report should be excluded because it is irrelevant to any of the issues of this case. We are required under 26 M.R.S.A. 968(5) to conduct hearings, when necessary, and to make findings and conclusions when a prohibited practice complaint has been filed. Our findings and conclusions will appear in this decision and order. Any findings or conclusions by another board or commission are irrelevant to the issues which we must decide under the procedures established in Section 968(5) of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. ("Act"). Consequently, upon reconsideration we grant Respondents' motion to exclude the Board of Inquiry Report from the record of this proceeding. II. Substantive Issues Complainant charges that Respondents have engaged in a course of bad faith bar- gaining in violation of 26 M.R.S.A. 964(1)(E), and that certain acts by Respondents constitute violations of 26 M.R.S.A. 964(1)(A), (B) and (C). Respondents answer that they have not bargained in bad faith or otherwise violated the Act, and that if there have been any prohibited practices committed, the employees and not Respondents are the guilty parties. After carefully studying the record, the pertinent statutory provisions, and the applicable legal precedent, we conclude, as more fully discussed below, that Respondents engaged in a course of bad faith bargaining in violation of Section 964(1)(E) which completely frustrated the bargaining process. We also conclude that the employees on February 14, 15 and 16, 1979, engaged in a work stoppage or strike in violation of Section 964(2)(C) of the Act. In light of these violations of the Act, we will order remedies designed to effectuate the policies of the Act. -7- _______________________________________________________________________________________ A. Respondents' Bad Faith Bargaining. Complainant argues that Respondents committed no less than sixteen prohibited practices during the course of a bargaining relationship lasting over five months. While we do not agree that each of these actions by Respondents constitutes a separate prohibited practice by itself, it is abundantly clear upon examination of the totality of Respondents' conduct that Respondents engaged in bad faith bargaining with no serious intent to reach agree- ment with Complainant. At the outset, it is necessary to clarify the nature of the so-called "6 percent" wage increase "offer" made by Respondents at the September 19, 1978 bargaining session. This 6 percent offer included some 20 cents per hour per employee which Respondents were obligated to pay under the terms of a prior agreement with AFSCME. The offer actually was for a 6 percent increase over the gross salary figure in the employees' 1978 W-2 forms. Because in 1978 the employees received a 52 cent per hour raise spread over the year in 13 cent quarterly escalations, their 1978 W-2 forms reflected only approximately 32 cents of the 52 cent raise. Thus, the gross salary figures in their 1979 W-2 forms will increase by approximately 4 percent or 20 cents per hour due to the salary increase the employees received in 1978. Respondents' 1979 6 percent offer based on the employees 1978 W-2 forms therefore includes approximately 20 cents per hour per employee which Respondents were paying at the end of 1978, and which Respondents are obligated to pay regardless whether a new agreement on wages is reached in 1979. Respondents' "6 percent offer" thus was in reality an offer of approximately a 2 percent increase over the salaries paid at the end of 1978, amounting to approximately a 9 cent per hour per employee increase. We can perceive no rational reason why Respondents would characterize their September 19th proposal as a "6 percent salary increase" offer. The offer was for approximately a 2 percent salary increase, with the rationale for the offer apparently being that the employees would not realize some of their 1978 raise until 1979. Complainant argues that Respondents utilized the 6 percent characterization as a ploy in order to induce the union to reveal its bargaining position on wages. After Mr. Ackerman proposed the 6 percent increase at the September 19th bargaining session, specifically mentioning that the increase amounted to approximately $600.00 per year per employee or 29 cents per hour, the union, reasonably believing that it had been offered a 29 cent per hour increase, caucused and came back with an offer of 31 cents per hour. It was not until after the union made its offer that Mr. Ackerman explained that Respondents' "offer" included some 20 cents which Respondents already were obli- gated to pay. It is well-settled that trickery or misleading statements during the bargaining process impermissibly interferes with the protected right of employees to engage in collective bargaining. See, e.g., The Rangaire Corp., 157 NLRB 682, 684 (1966). We note that any misleading aspects of Respondents' 6 percent offer were clarified on September 19th after the union returned from caucus and presented its position. We consequently decline to find that Respondents violated 26 M.R.S.A. 964(1)(A) by its "6 percent offer" on September 19th, but do consider the fact that Respondents -8- _______________________________________________________________________________________ presented an ambiguous offer and induced the union to reveal its bargaining position before clarifying the offer as evidence that Respondents were engaging in bad faith bargaining at the outset of negotiations. Further evidence of Respondents' lack of good faith bargaining is found in the fact that, after clarifying the nature of their wage offer at the September 19th bargaining session, Respondents maintained a fixed and inflexible position on wages, with one inconsequential exception, throughout the remainder of the negotiations. At the October 4th bargaining session, Respondents reiterated their 6 percent salary increase offer based on the employees 1978 W-2 forms. On October 19, Mr. Ackerman by letter to Mr. Walo stated that Respondents were offering a wage increase of 8 cents per employee per hour. Respondents remained firm on their 8 cent offer at the December 11th mediation session, remained firm on the 8 cent offer at the January 31st bargaining session, then offered 16 cents per hour, over the objections of Mr. Ackerman, on a "one shot" basis at the February 7th bargaining session. Certain of Responents' witnesses testified that, while they did initially state at the February 7th negotiations that the 16 cent offer was a "one shot deal" about which the union would have to respond by the next morning, they later during the February 7th session suggested to the union that the offer would remain open for a longer period of time. We think that the union reasonably understood that the 16 cent offer remained open only until the next morning, after which Respondents' position would revert to the 8 cent offer. It is true that an adamant position on a particular subject of bargaining is permissible when there exists legitimate justification for the refusal to move on the subject, and the justification is forthrightly conveyed to the other bargaining party. In particular, an adamant position on wages may be justified when there is no money available for increasing the wage offer. However, it is clear that Respond- ents were not required by budgetary restrictions to "hold fast" to the 8 cent offer. The Town's chief negotiator testified that the Town had placed no restrictions on the amount of money he could offer during negotiations. This testimony is substan- tiated by the fact that, on February 7, the selectmen decided to double their offer to 16 cents, and agreed that they could ultimately agree to a 20 cent wage settle- ment. There is no evidence that this additional money was not available prior to February 7. Had Respondents been bargaining in good faith, they could have offered some of this additional money at some point during the five months of negotiations which preceded the February 7th session. Respondents argue they are not required to make concessions under 26 M.R.S.A. 965(1)(C), and that their position regarding wages merely constitutes permissible hard bargaining. While Respondents are of course correct in stating they they are not required to make concessions during negotiations, it is clear that Respondents were obligated by the good faith bargaining standard in 26 M.R.S.A. 965(1)(C) to make some reasonable movement toward resolving the differences between their positions and the union's positions: "An employer does not meet its obligation to bargain merely by meeting with the representatives of its employees. More is required. A party to a bargaining relationship must main- tain the intention of reaching a negotiated settlement." A. Bioff, L. Cohen & K. Hanslowe, The Developing Labor Law 166 (1971-75 Supp. 1976). -9- _______________________________________________________________________________________ "[E]ven though Section 8(d) [of the National Labor Relations Act] does not require the making of a concession, the court and Board definitions of good faith suggest that willingness to compromise is an essential ingredient. The granting or withholding of con- cessions may be of vital importance in defending against charges of refusal to bargain in good faith." C. Morris, The Developing Labor Law 289 (1971) (Footnotes omitted). "[W]hile the Board cannot force an employer to make a 'concession' on any specific issue or to adopt any particular position, the employer is obligated to make some reasonable effort in some direction to compose [sic] his differences with the union. . ." NLRB v. Reed & Prince Manufacturing Co., 205 F.2d 131, 134-135 (1st Cir.), cert. denied, 346 U.S. 887 (1953). (Emphasis in original) The record is devoid of evidence that Respondents were willing to compromise their differences with the union, or that Respondents maintained any intention of reaching an agreement with Complainant. The union presented its proposals at the initial bargaining session on September 5th. Respondents stated at the next bargain- ing session on September 19th that they wished to propose no changes in the agreement. The parties discussed the union's proposals at the October 4th session, with Respond- ents rejecting each proposal on the ground that the proposal represented "cost" to the Town. Respondents then at the December 11th mediation presented approximately 20 proposals, which were withdrawn when the mediator stated that the introduction of new proposals at a mediation session was improper. Thereafter, Respondents at the January 31st session rejected the union proposals submitted on January 23rd in response to a request by the selectmen that the union put its proposals in writing. The only other proposals by Respondents came at the February 7th session when Respondents proposed, as a "one-shot deal," the 16 cent wage increase, the abolition of the rubbish collectors' "incentive plan," and a $100 tool allowance for mechanics. The sum total of Respondents' participation in the bargaining relationship spanning over five months thus is this: summary rejection of all union proposals on the ground that the proposals cost money; failure to submit any meaningful conter- proposals or compromise proposals; and rigid adhesion without justification to a wage offer of 8 cents per hour. This is not collective bargaining. After a bar- gaining relationship of five months, the parties had not reached tentative agreement on a single provision of the new agreement. Respondents' conduct during the bar- gaining relationship is the very antithesis of its obligation to bargain in good faith imposed by Maine law. Respondents' bad faith bargaining is made even more egregious, however, by the facts (1) that Respondents knew as early as September 19th that the 8 cent offer, in the context of no compromises or movement on some of the union proposals, would not lead to an agreement (the union rejected the 8 cent offer on September 19th and there- after, and Respondents were informed by the mediator that he could not settle an agreement on the basis of the 8 cent offer), (2) that Respondents were aware by October 4th that the employees were becoming angry and frustrated by Respondents' lack of movement, and (3) the Town's chief negotiator had indicated that the Town was inflexible by stating at the October 4th and January 31st bargaining sessions that the union could take the Town's positions to mediation, fact finding and arbi- tration, or (at the January 31st session) even "hit the bricks," and the Town's -10- _______________________________________________________________________________________ positions would not change. Particularly in light of these circumstances, it was incumbent upon Respondents, if they were sincerely interested in reaching agreement with Complainant, to make some good faith effort in some direction to reach agree- ment with Complainant. Respondents cannot justify their failure to bargain in good faith by arguing that Complainant also maintained inflexible positions or failed to offer to compro- mise. The record shows that Complainant moved substantially from its positions on those few occasions when it was offered the opportunity to do so. The union on September 5th submitted proposals for some six changes in the agreement. Included was a proposal that salaries be increased approximately 75 cents per hour per employee. On September 19th, reasonably believing that it had received a wage offer of 29 cents, the union counterproposed a wage increase of 31 cents, less than half its September 5th wage proposal, and reduced the number of its proposed changes from six to three. Had Respondents seriously intended to reach agreement, it is likely that a fair and amiable agreement could have been settled on September 19th. When requested by the selectmen on January 24rd to put its proposals in writing, the union again showed its willingness to modify its proposals, proposing a two-year agreement with a 30 cent salary increase in the first year and a 40 cent increase the second year, with two changes which differed from the changes which it proposed on September 19th. We find on the basis of these actions that the union maintained an intention to reach agree- ment with Respondents, and that the union accordingly bargained in good faith. In sum, we conclude that Respondents have engaged in a classic case of bad faith surface bargaining. Respondents' rejection of all union proposals, failure to propose compromise solutions, and maintenance of its rigid position on wages constitutes the essence of bad faith bargaining. While Respondents met with Com- plainant and went through the motions of collective bargaining, Respondents had accomplished after five months of collective bargaining exactly what they would have accomplished had they altogether refused to sit down with Complainant. Respondents' bad faith completely frustrated the bargaining process, and constitutes a serious violation of Section 964(1)(E) of the Act. Pease Co., 237 NLRB No. 161 (1978); Milgo Industrial, Inc., 229 NLRB 25, enforced, 567 F.2d 540 (2nd. Cir. 1977); Borg-Warner Controls, 198 NLRB 726 (1972). B. Allegations of Other Prohibited Practices. Complainant also charges that Respondents committed such prohibited practices during the bargaining relationship as (1) bypassing the bargaining agent and negotiating directly with the employees, (2) subcontracting bargaining unit equipment and work without bar- gaining with the bargaining agent, and in order to pressure the union into accepting the 8 cent offer, and (3) attempting to dictate the composition of the union's bar- gaining team. Respondents deny these charges and, among other things, argue that the union and employees (1) attempted to bypass the Town's bargaining agent, and (2) utilized threats of job actions in an effort to extract concessions from the Town. We find that the only one of these claims with merit is the charge that the Town attempted to dictate the composition of AFSCME's bargaining team. 1. The charges regarding the bypassing of the bargaining agents. Both parties attempt to make much of those meetings between employees and selectmen at which either -11- _______________________________________________________________________________________ Mr. Walo or Mr. Ackerman was not present. Complainant thus argues that the meetings between the employees and selectmen without Mr. Walo on January 25 and February 1 and 2, 1979 constitute attempts by Respondents to circumvent the union and deal directly with the employees, while Respondents contend that the meeting between AFSCME and the selectmen without Mr. Ackerman on January 23, 1979 was an effort to bypass Mr. Ackerman. Neither of these contentions has merit. It is of course axiomatic that an attempt to bypass a party's bargaining repre- sentative may be considered evidence of bad faith bargaining. See NLRB v. Insurance Agents Int'l Union, 361 U.S. 477 (1960). We do not consider that the incidents relied upon by the parties rise to the level of an effort to bypass the other's bargaining agent, however. Little of significance was "negotiated" at these meetings; three of the employees received an additional 10 cents per hour for the duration of a snowstorm and the selectmen received the employees' acquiescence in the subcontracting of unit equipment and work during the storm as a result of the January 25th meeting, while nothing of substance in the negotiations was accomplished at the other meetings. While the actions of the employees and selectmen in meeting may have been unsophisti- cated in labor law terms, the record shows little if any intent by either party to circumvent the other's bargaining representatives. In addition, the meetings had negligible effect upon the bargaining authority of Mr. Walo or Mr. Ackerman. 2. The charges regarding the subcontracting of unit equipment and work, and the exerting of undue pressure by threats. Complainant alleges that Respondents subcontracted unit equipment and work during the January 25th snowstorm without negotiating, and that Respondents threatened to subcontract the rubbish collection operation and terminated the agreement in November 1978 in order to pressure the union into accepting the 8 cent offer. Respondents urge that the temporary sub- contracting of the "Walters" trucks during the storm was justified, and that the union and employees threatened job actions and other misconduct in an effort to extract concessions from the Town. We find that none of these contentions has merit. In Teamsters Local Union No. 48 v. City of Augusta, Board of Education, MLRB No. 78-04 (1978), we noted that a public employer has an obligation to bargain over the issue of subcontracting unit work. We do not agree with Complainant's contention that temporary subcontracting of the trucks during an emergency in this case consti- tuted a violation of that obligation. In any event, as previously noted, the employees acquiesced in the temporary subcontracting upon agreement by the Town to pay three employees the additional 10 cents per hour they would have earned if they had operated the vehicles. As for the allegations regarding the exertion of undue pressure, we find that the threats and other alleged misconduct engaged in by the parties was not of sufficient magnitude or import to constitute undue interference with the bargaining process. We held in Sanford School Comm. v. Sanford Teachers Ass'n, MLRB No. 78-34 (1978), that it would be unrealistic for party to expect to engage in collective bargaining in a vacuum free of pressures or interruptions from the outside world. None of the alleged acts of misconduct by either party are so far removed from the everyday reality of collective bargaining as to cause us to find a violation of the Act. -12- _______________________________________________________________________________________ 3. The charge regarding Respondents' attempt to dictate the composition of the union bargaining team. Respondents clearly violated 26 M.R.S.A. 964(1)(E) by refusing on February 20, 1979 to bargain with the three employees on the union's bargaining team who had been discharged. We have repeatedly held that, absent an express agreement in the ground rules, one need not be a member of the bargaining unit nor a public employee in order to serve as a member of a bargaining team. A refusal to bargain with a bargaining team which includes such people constitutes an impermissible attempt to dictate the composition of the other party's bargaining team. See Teamsters Local Union No. 48 v. City of Augusta, Board of Education, supra. Respondents concede the violation, but argue that the violation was merely technical. We find that the violation was not technical and that Respondents' conduct on February 20th constitutes a final piece of evidence of Respondents' bad faith bargaining. C. The employees' strike. Respondents also contend that the employees engaged in a strike from February 14-16, 1979 in violation of 26 M.R.S.A. 964(2)(C)(3). Complainant argues that the job action was justified because it was provoked by Respondents' bad faith bargaining. We find that there can be no justification for a strike by public employees in Maine. No provocation or misconduct by the public employer can be used to transform an illegal strike into a legal one. Bennett v. MacMillen, 89 LRRM 2677 (Mass. Super. Ct. 1975); Board of Educ. of Union Beach v. New Jersey Educ. Ass'n, 53 N.J. 29, 247 A.2d 867 (1968). The strike by the employees on February 14, 15 and 16, 1979 con- stituted a serious violation of Section 964(2)(C)(3). We will order an appropriate remedy. III. Remedies We are delegated the authority in Section 968(5)(C) of the Act, upon finding that a party has engaged in a prohibited practice, to "issue and cause to be served upon such party an order requir- ing such party to cease and desist from such prohibited prac- tice and to take such affirmative action, including reinstate- ment of employees with or without back pay, as will effectuate the policies of this chapter." This statutory grant of authority gives the Board "flexibility in designing remedies" so that the Board "can respond reasonably to disparate situations." Campbell v. Town of Freeport, No. 75-621 (Kennebec Super. Ct. Sept. 2, 1976). Section 961 of the Act states that it is the public policy of the State of Maine to promote the improve- ment of the relationship between public employers and their employees. After con- sidering the matter, we have decided that the policies of the Act can best be effec- tuated by restoring the status quo as it existed on February 13, 1979, and ordering the parties to commence negotiations immediately. We accordingly will order both parties to cease and desist from engaging in any of the acts prohibited by Section 964, and will order that the parties commence nego- tiations for a collective bargaining agreement within 48 hours of their receipt of -13- _______________________________________________________________________________________ this decision and order. Both parties are to report to the Board in writing on the progress of negotiations every 15 days, until they reach final agreement. If final agreement is not reached after the first 15-day period, then the parties shall spend a minimum of 20 hours per week bargaining with each other, until final agreement is reached. Complainant urges that the strike was provoked by Respondents' bad faith bar- gaining, and that it is therefore necessary, in order to effectuate the policies of the Act, to order that the discharged employees be reinstated with full back pay. Respondents argue that the illegal strike constituted cause for the discharges, and that the Board accordingly cannot order under Section 968(5)(C) that the employees be reinstated with back pay. Section 968(5)(C) provides in part that "No order of the board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of back pay, if such individual was suspended or discharged for cause." We have very carefully considered the parties' arguments. We have decided that, while the public employer misconduct which causes an illegal job action cannot serve to justify the illegal act, public employer provocation or misconduct is a factor to be considered when we assess the remedies to be imposed for the unlawful work action. Cf., Timberlane Regional School Dist. v. Timberlane Regional Educ. Ass'n, 114 N.H. 254, 317 A.2d 555, 558 (1974); School Comm. of Westerly v. Westerly Teachers Ass'n, 111 R.I. 96, 299 A.2d 441, 446 (1973). When deciding the remedy to be assessed for an illegal job action, we are not necessarily bound to uphold the employer's discharge of the employees. As held in Campbell v. Town of Freeport, supra, "Freeport urges specifically that the language of 968(5)(C). . . means that the municipality's finding of cause for dismissal binds the M.L.R.B. and precludes orders of reinstatement and back pay. To so hold would render the M.P.E.L.R.L. [the Act] a joke at the expense of the public employees, the protection of whose rights comprise at least one-half the purpose of its existence." We may conclude, where the employer's misconduct causes the illegal job action, that the job action does not constitute sufficient cause for dismissal and that remedies other than upholding the dismissal would effectuate the policies of the Act. Our conclusion is in accord with the holdings of those courts which have con- sidered the question of reinstatement when the employer's misconduct was a cause of the illegal strike. In Rockwell v. Board of Educ. of Crestwood, 393 Mich. 616, 227 N.W. 2d 736 (1975), the teachers' employment was terminated, pursuant to a school board resolution, after the teachers engaged in an illegal strike. The Michigan Supreme Court held (227 N.W. 2d at 746): "The action of the Crestwood school board in discharging teachers for striking in violation of the provisions of the PERA [Public Employment Relations Act] prior to the hiring of replacements was not violative of that Act. It does not necessarily follow, how- ever, that these teachers may not be entitled to reinstatement should MERC [Michigan Employment Relations Commission] determine that the school board engaged in an unfair labor practice. . . . . -14- _______________________________________________________________________________________ "If MERC should determine that the employing school district com- mitted an unfair labor practice, MERC may, despite the illegality of the strike, order reinstatement. (Emphasis in original). . . . . "If MERC finds that an unfair labor practice or other misconduct was committed by both sides, it should balance the competing equities to reach a result best effectuating the policies of the act." The Court indicated that its holdings were based upon the premise that it would not be just to uphold the discharges of the illegal strikers if the employer's misconduct was a factor in causing the illegal strike.[fn]1 In particular, the Court quoted with approval the following holding in Local 833, UAW v. NLRB, 300 F.2d 699, 702 (D.C. Cir. 1962): "Where an employer who has committed unfair labor practices dis- charges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employer's unlawful acts and the seriousness of the employees' misconduct in deter- mining whether reinstatement would effectuate the policies of the Act. Those policies inevitably come into conflict when both labor and management are at fault. To hold that employee 'misconduct' automatically precludes compulsory reinstatement ignores two considerations which we think important. First, the employer's antecedent unfair labor practices may have been so blatant that they provoked employees to resort to unprotected action. Second, reinstatement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union." A result identical to that reached in Rockwell was also reached in Local 1494, Firefighters v. City of Coeur D'Alene, 97 LRRM 2436 (Idaho Dist. Ct. 1977). After ruling that the strike by the Firefighters was illegal, the Court held (97 LRRM at 2439): ". . . the City . . . did not act in good faith in the bargain- ing process, but pursued a hard line approach to the problem, the effect of which drove the Firefighters to the wall and into a strike that the Firefighters believed not only to be justified, but also legal in Idaho." _______________ 1 We think it significant that the language of the provisions of Michigan's PERA prohibiting strikes and granting the MERC's remedial authority is nearly identical to the language found in parallel provisions of Maine's Act. Section 423.202 of PERA prohibits strikes by public employees as does Section 964(2)(C) of the Act. Section 423.216 of PERA provides in pertinent part that: "If upon the preponderance of the testimony taken the Commission is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirm- ative action including reinstatement of employees with or with- out back pay, as will effectuate the policies of this act . . . No order of the commission shall require the reinstatement of any individual as an employee who has been suspended or dis- charged, or the payment to him of any back pay, if the indi- vidual was suspended or discharged for cause." This language is nearly identical to that found in Section 968(5)(C) of the Act. -15- _______________________________________________________________________________________ The Court went on to discuss the evidence of the City's bad faith in the negotia- tions which led up to the strike, then ordered that the Firefighters be reinstated as employees under the same terms and conditions of employment that prevailed at the time of discharge. We find that Respondents' bad faith bargaining over the five months of nego- tiations cause the employees' illegal strike on February 14, 15 and 16, 1979. The record is clear that the employees were aware of Respondents' lack of substan- tive bargaining throughout negotiations, and that the employees' anger and frus- tration mounted as the months passed. Because Respondents' bad faith bargaining caused the strike, we think there was insufficient cause for discharging the employees. We accordingly will order that all the employees be reinstated within 24 hours of Respondents' receipt of this decision and order, under the same terms and conditions of employment as existed on February 13, 1979. Because the strike was illegal, we will not order that the employees receive back pay from the date upon which they were discharged to the date upon which they are to be reinstated. If any employee is not reinstated through no fault of his own within 24 hours of Respondents' receipt of this decision and order, the Town must nonetheless commence within 24 hours of receipt of this decision and order paying such employee the full amount of his regular salary as of February 13, 1979. The effect of our order thus will be that the employees were suspended from their employment without pay for approximately 7 weeks. We believe that this order will discourage both the employer and the employees from engaging in further prohibited practices. We believe that our order outlined above is required by the basic notion of fairness. It would be grossly unfair to permit a public employer which caused its employees to engage in an illegal job action to fire the employees and decimate the union. Because such an occurrence would subvert all of the provisions of the Act, we would be derelict in our duties under 968 of the Act if we sanctioned such a situation. In our opinion, no remedy other than reinstatement without back pay would effectuate the policies of the Act. While we could refuse to order rein- statement and order instead that Respondents pay Complainant the fees Complainant incurred in bringing this case, such a remedy would amount to a mere "slap on the wrist" of Respondents and would be of small consequence to the union and of no con- sequence at all to the discharged employees. In short, we are convinced that the remedy we will order, which is dictated by the notion of fairness, is the only remedy available to effectuate the policies of the Act. One other point is deserving of comment. Respondents also argue that rein- statement would not be appropriate because the employees did not take their bargaining problems through fact finding or arbitration prior to striking. This argument has no merit in this case because the Town's chief negotiator made it perfectly clear at the October 4th and January 31st bargaining sessions that even if the union did take the Town's positions to fact finding and arbitration, the Town's positions would not change (any arbitration award regarding salaries would of course not be binding on the town under Section 965(4) of the Act). Respondents urge that we not take the chief negotiator's statements out of context, noting that the statements -16- _______________________________________________________________________________________ were made in response to a question by the union of "what are we supposed to do now?" We do not take these words out of context. The statements speak for them- selves. The Town's position is confirmed by the fact that its position on wages did not change even after the mediator on December 11th informed the Town that its offer would not settle the agreement. In light of the Town's position regarding the effect that fact finding or arbitration would have on its bargaining positions, we see no reason to hold that the employees are not entitled to reinstatement because they did not go fact finding or arbitration. 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 968 of the Municipal Public Employees Labor Relations Act, it is ORDERED: 1. That Respondents Town of Sanford, Town of Sanford Selectmen, and Town of Sanford Chief Negotiator, and their represent- atives and agents, cease and desist from engaging in any of the acts prohibited by 26 M.R.S.A. 964(1), and especially from refusing to bargain in good faith as required by 26 M.R.S.A. 965. 2. That Complainant Sanford Highway Unit of Local 481, Council No. 74, American Federation of State, County and Municipal Employees, and its agents, members, and bargaining agents, cease and desist from engaging in any of the acts prohibited by 26 M.R.S.A. 964(2), and especially from engaging in strikes as prohibited by 26 M.R.S.A. 964(2)(C)(3). 3. That each and every employee discharged for striking on February 16, 1979 be reinstated, without back pay and under the same terms and conditions of employment as existed on February 13, 1979, within 24 hours of Respondents' receipt of this decision and order. If any discharged employee is not reinstated through no fault of his own within 24 hours after Respondents' receipt of this decision and order, such discharged employee shall be entitled to receive, at the next regular Town payday and at each regular payday there- after, his salary based on his hourly rate of pay as of February 13, 1979 and on an 8 hour per day, 5 day per week work week, exclusive of Saturdays, Sundays and legal holi- days, commencing 24 hours after Respondents' receipt of this decision and order. 4. That Respondents and Complainant, within 48 hours of receipt of this decision and order, commence negotiations for a col- lective bargaining agreement covering the terms and conditions of employment of the employees in the Highway Unit. Both parties are to notify the Maine Labor Relations Board in writing of the progress of negotiations every 15 days, run- ning from the date of receipt of this decision and order, until final agreement is reached. If final agreement on all terms and conditions of employment is not reached after the first 15-day period, running from the date of receipt of this decision and order, then the parties are to spend a minimum of 20 hours per week negotiating with each other, until final agreement is reached. -17- _______________________________________________________________________________________ Dated at Augusta, Maine, this 5th day of April, 1979. MAINE LABOR RELATIONS BOARD /s/________________________________________ Edward H. Keith, Chairman /s/________________________________________ Michael Schoonjans, Employee Representative /s/________________________________________ Paul D. Emery, Employer Representative -18- _______________________________________________________________________________________