STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-67
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)
TEAMSTERS LOCAL UNION NO. 48,)
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY EMPLOYEES IN THE )
STATE OF MAINE, )
)
Complainant,)
) DECISION AND ORDER
v. )
)
TOWN OF OAKLAND )
)
Respondent.)
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The Complainant, Teamsters Local Union No. 48, State, County, Municipal and
University Employees in the State of Maine (hereafter "Local 48") filed this
prohibited practice complaint on May 15, 1979. The Town of Oakland ("Town")
filed its response on May 22, 1979.
A pre-hearing conference was held on June 28, 1979, by Alternate Chairman
Donald W. Webber after which he issued a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.
The matter was heard by the Maine Labor Relations Board ("Board") on August
16, 1979, Alternate Chairman Webber presiding, with Don R. Ziegenbein, Employer
Representative, and Harold S. Noddin, Alternate Employee Representative. Local
48 was represented by Jonathan G. Axelrod, Esq.; the Town by John P. Jabar, Esq.,
and Joseph M. Jabar, Esq. Both parties filed post-hearing briefs and reply briefs.
JURISDICTION
The jurisdiction of the Board lies in Section 968(5) of the Municipal Public
Employees Labor Relations Act ("Act"), 28 M.R.S.A. 968(5) (1979).
FINDINGS OF FACT
1. Local 48 was certified as the exclusive bargaining agent for
a unit of employees in the public works department on June 12,
1978. 26 M.R.S.A. 962(2). The Town of Oakland is the
public employer of these employees and Eric S. Meserve was at
all relevant times the Town Manager acting on behalf of the
Town. 26 M.R.S.A. 962(6).
2. Collective bargaining between Local 48 and the Town commenced
with a meeting on September 14, 1978. There had been no previous
collective bargaining agreement for these employees. Richard R.
Peluso, International Trustee of Local 48, and James C. Mullen,
an employee in the unit were the bargaining representatives
for Local 48; Town Manager Meserve and Town Council Chairman
Ralph Farnham, Jr., for the Town.
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3. Among other issues not here germane, Local 48 proposed that
the current medical insurance plant be augmented by a dental
plan and that the wages be increased sixty cents per hour.
At the next session, on October 23rd, the Town proposed that
the medical insurance plan be switched to a Blue Cross/Blue
Shield plan, that the current employee dependent coverage
feature be dropped in favor of an optional plan at employee
expense, and that wages be increased 4%. James Mullen, who
has eleven dependent children, responded that the employees
would prefer the existing plan, which included the automatic
dependent coverage. Whether or not Meserve indicated agreement
to this response was a disputed issue of fact.
4. At the next meeting on November 29th, Mullen restated the position
in favor of the existing plan. At some point Meserve indicated
that he was going to substitute the Blue Cross/Blue Shield carrier
for the existing carrier. Although this proposal was acknowledged,
it was clear that Local 48 assumed that the existing dependent
coverage would be retained even though the carrier was being
changed and that Meserve assumed that the coverage would not be
retained. The parties also agreed on a wage increase of twenty-five
cents per hour. All other issues were settled.
5. At Peluso's direction Mullen conducted a ratification vote among
the employees based upon the key proposals of the agreement. He
told them that the Town would continue to pay dependent coverage,
showing them his marked-up, but unsigned copy of the agreement as
he and Peluso understood it. The employees voted to ratify the
proposed agreement and Peluso notified the Town.
6. Meserve drafted a copy of the agreement as he understood it and
sent it to Peluso. Upon reading the draft, Peluso noted a number
of mistakes as he understood the agreement, including the omission
of the automatic dependent coverage provision. He mailed the draft
back to Meserve with all the "mistakes" noted. Meserve drew up
another draft and mailed one copy to Peluso. Meserve also told Mullen
that he would need the agreement signed before he could give the
lump-sum retroactive pay provided for in the agreement.
7. Mullen communicated this to Peluso. The employees wanted to receive
the retroactive pay before Christmas. Peluso, who had not seen a
copy of the new draft yet, called Meserve on December 24th and
asked him to make the payment before Christmas. Meserve said that
Mullen had already signed the agreement and the money paid. We are
uncertain whether the subject of Mullen's ability to sign the agree-
ment was discussed.
8. On December 24th Meserve gave Mullen a copy of the latest draft
and again told him he could not give the retroactive pay unless the
agreement was signed. Although Peluso, who was not then available,
had told Mullen in the past, "Don't do anything." Mullen proceeded
to sign the agreement on the spot, without reading it. The retro-
active money was paid. A few days later the agreement was ratified
by the Town Council. Apparently no one in Local 48 read the signed
document before the Town ratified it.
9. Article VIII of the executed agreement provides that the authority of
designated shop stewards was limited to two and only two areas, which
did not include the authority to execute agreements. Peluso had
referred to Mullen as the "Steward" in a letter to Meserve dated
December 15th.
10. Peluso first saw a copy of the agreement that was executed on January
3, 1979, when he returned from vacation; he did not read it.
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11. On January 5, 1979, another employee called Peluso to tell
him that the Town was changing the dependent coverage plan by
requiring employees to pay for the dependent coverage if they
wanted it. Peluso apparently tried to reach Meserve by phone
unsuccessfully a few times in order to discuss the dependent
coverage problem. The first time he reached Meserve was on
February 27, 1979. Peluso testified that he had read the agree-
ment for the first time in late January or early February.
In that conversation Peluso indicated that he thought that the
Town was taking something away which had not been agreed upon;
Meserve indicated that the Town had been following the signed
agreement which was what he had agreed to.
12. Meanwhile, Peluso and Attorney John Jabar were corresponding
concerning a problem growing out of the dues deduction provi-
sions of the agreement. Jabar wrote on January 2, 1979, that
two employees had refused to sign authorization cards. Peluso
wrote on January 10th claiming that the Town should be deducting
for one of these two. Jabar wrote on January 16th that he dis-
agreed with Peluso's interpretation of the agreement. Peluso
wrote on February 8th that he was requesting arbitration of the
dispute. The arbitrator assigned to the case wrote to Peluso
and Jabar on March 2nd confirming the brief schedule on the
grievance.
13. After complaining by phone to Meserve on February 27th, Peluso
wrote to Meserve on March 7th concerning his objection to the
dependent coverage language that was in the agreement. Meserve
had Jabar respond on March 19th. In its brief dated March 19th
to the arbitrator on the dues checkoff grievance, Local 48 re-
ferred to the Town's conduct as a "breach of contract" while
referring to the agreement signed by Mullen on December 24, 1978.
14. On April 16, 1979, the arbitration panel issued an award concluding
that the Town had violated the "contract" with respect to the dues
deduction provision. Local 48 filed this prohibited practice com-
plaint on May 15, 1979.
DECISION
The issue is whether the Town has violated 26 M.R.S.A. 964(1)(A) and
(E) and 965(1)(D) by refusing to execute an agreement which contains con-
tract language actually agreed upon in collective bargaining.
Local 48 argues (1) that the parties agreed on November 29th to continue
dependent coverage at Town expense as part of the collective bargaining agree-
ment, (2) that the agreement signed by Mullen was not valid because it did
not reflect the actual agreement of the parties, (3) that Mullen had no
authority to sign the contract, and (4) that Local 48 did not waive its right
to claim this violation by processing the dues deduction grievance to arbitra-
tion.
The Town counters that the agreement regarding dependent coverage is
accurately reflected in the document signed by Mullen and that Local 48 is
estopped from claiming otherwise since it failed to disavow the document and
have relied on it in bringing a case to arbitration.
We dismiss the complaint.
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A basic premise of a claim under 26 M.R.S.A. 965(1)(D) is that there was
an "agreement arrived at" which the Town is refusing to execute in writing. That
premise is lacking.
In weighing the testimony and the credibility of the witnesses we conclude
that the parties each thought they had an agreement regarding dependent cover-
age but that in fact there was no meeting of the minds on this point. Thus,
the Town cannot now be said to be in violation of its duty to execute in writing
the agreement which Local 48 claims but which the facts do not sustain.
Although there was testimony regarding coercion of Mullen, this claim is not
pressed by Local 48 in its brief and we therefore conclude that Local 48 cites
Section 964(1)(A) of the Act in the sense of a derivative violation of Section
964(1)(E) rather than as an independent violation. Since we are dismissing the
latter charge, the charge under Section 964(1)(A) must also be dismissed.
Even if we concluded that an oral agreement was reached as suggested by
Local 48, that is, in contrast to that in the document signed by Mullen, we would
be troubled by Local 48's subsequent conduct. Even though Peluso was made aware
of the problem by January 5, 1979, at the latest, and had a copy of the document
in his possession at that time, he did not raise this objection with the Town until
February 27th, over two months after the document was signed by Mullen. By his
own testimony Peluso actually read the contested language in late January or early
February, yet he acted with the Town as if there were no problems with the contract.
He complained about the Town's application of the dues deduction provisions of the
contract, conducted extensive correspondence with Meserve and the Town attorney,
and then invoked arbitration under the provisions of the contract on February 16th.
The record shows that Local 48 used the contract signed by Mullen as a basis
for the arbitration and claimed a "breach of contract." The Town, which if it
had any reason to believe that Local 48 did not accept the contract, could have
resisted, if not avoided, arbitration on that ground. Thus, it justifiably re-
lied, potentially to its detriment, on the belief that the contract was valid.
Under these circumstances we are forced to conclude that Local 48 should
be barred by the principle of equitable estoppel from asserting that the document
executed by Mullen was not a valid contract. See Pino v. Maplewood Packing Co.,
375 A.2d 534, 538-39 (Me. 1977).
Under these circumstances, however, we conclude that Local 48's letter
of March 7, 1979, would satisfy the requirements of the 120 day notice per 26
M.R.S.A. 965(1).
ORDER
The complaint is dismissed.
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Dated at Augusta, Maine, this 20th day of December, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________________
Donald W. Webber
Alternate Chairman
/s/________________________________
Don R. Ziegenbein
Employer Representative
/s/________________________________
Harold Noddin
Alternate Employee Representative
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