STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-09
Issued: March 4, 1981
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)
COUNCIL #74, AMERICAN FEDERATION )
OF STATE, COUNTY, AND MUNICIPAL )
EMPLOYEES, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF BATH, et al., )
)
Respondents. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on August 5, 1980 by Council #74 of the American Federation of
State, County, and Municipal Employees, AFL-CIO (Union). The Union alleges
that the City of Bath, et al. (City) violated 26 M.R.S.A. 964(1)(B to E) by
refusing to bargain in good faith with the Union. The City filed a response
to the complaint on August 28, 1980, denying that it had refused to bargain.
A pre-hearing conference on the case was held on September 8, 1980,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on September 15, 1980 a Pre-Hearing Conference Memorandum and Order,
the contents of which are incorporated herein by reference.
A hearing on the case was held on November 14, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Wallace J. Legge. The Union was represented by Mary Morse and
the City by Roger Therriault, Esq. The parties were given full opportunity to
examine and cross-examine witnesses, introduce documentary evidence, and make
oral argument.
JURISDICTION
The Union is the bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for the dispatchers, patrolmen and sergeants employed by the Bath
Police
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Department. The City is a public employer as defined in 26 M.R.S.A. 962(7).
The jurisdiction of the Maine Labor Relations Board to hear this case and
render a decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In June, 1980, the parties began negotiating for a collective
bargaining agreement which would succeed an agreement due to expire on
June 30, 1980. Three bargaining sessions were held during the month of June.
At the first bargaining session on June 5th or 6th, the City's negotiator
stated that since the City no longer considered the dispatchers to be members
of the bargaining unit, the City would not negotiate for the dispatchers.
After considering the City's position, the Union negotiators offered to agree
to let the dispatchers split off from the Police Department bargaining unit,
which includes the dispatchers, patrolmen, and sergeants, if the City would
voluntarily recognize the Union as the dispatchers' bargaining agent and
bargain jointly on the issues pertinent to both bargaining units. The City
negotiator said he would recommend this procedure to the City Council.
2. At the second bargaining session, the City negotiator said the
Council had rejected the Union's proposal for voluntary recognition and joint
negotiations. The negotiator said the City would not bargain for the
dispatchers, and left the bargaining session.
3. On July 7, 1980, the Union pursuant to 26 M.R.S.A. 965(l)(C) sent
a ten day notice for bargaining to the City negotiator. In a July 14th letter
to the Union, the City'negotiator stated that while he disagreed that the City
had any obligation to bargain "under the current set of circumstances," the
City would negotiate subject to the following conditions: 1) no discussions
or agreements would be binding with respect to the dispatchers, 2) the Union
would agree in writing that by negotiating the City was not waiving any right
to seek clarification of the unit, and 3) the Union would agree in writing
that the City's agreement to negotiate subject to the conditions did not
constitute an unfair labor practice. The negotiator concluded by saying that
if these conditions were agreeable to the Union, the City would meet for
negotiations on July 21st.
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4. The Union negotiator understood the July 14th letter to mean that the
City would not negotiate for the dispatchers. The Union made no further
efforts to determine the City's position regarding the status of negotiations.
No bargaining occurred between the end of June and the hearing of this case
on November 14th.
5. On July 2, 1980, the City filed a petition for unit clarification
with the Board pursuant to 26 M.R.S.A. 966(3), alleging that the dispatchers
should be removed from the Police Department bargaining unit because they no
longer shared a community of interest with the other members of the unit.
A hearing examiner denied the petition on August 21, 1980, finding that the
dispatchers shared a clear and identifiable community of interest with the
patrolmen and sergeants, and that the City had failed to show the changed
circumstances required by Section 966(3) for modification of the unit. The
City appealed the hearing examiner's determination to the Board, which denied
the appeal and affirmed the hearing examiner's report in a decision issued in
MLRB Case No. 81-A-01 on December 15, 1980. The City then filed a Rule 80B
complaint for review of the Board's decision in the Sagadahoc County Superior
Court on January 14, 1981. No action to prosecute this appeal has been taken
by the City since it filed its Rule 80B complaint.
DECISION
The Union contends that the City violated various subsections of Section
964(1) by refusing to negotiate for the dispatchers, who have remained part of
the Police Department bargaining unit throughout this dispute. We find that
the facts do not show that the City has refused to bargain, and dismiss the
prohibited practices complaint.
The Union correctly argues that the City cannot unilaterally decree that
the dispatchers are no longer in the unit and then refuse to bargain for the
dispatchers. Similarly, the Union is correct in urging that the mere filing
of a petition for unit clarification does not excuse the City from its Section
965(1)(C) duty to bargain. Title 26 M.R.S.A. 966 spells out the procedures
for determining whether a group of employees should be removed from a
bargaining unit. The City was required to follow these procedures if it
believed that the dispatchers should be removed from the unit, for the statute
nowhere contemplates that either
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party can unilaterally mandate the bargaining unit status of employees.
Section 965(1)(C) requires the City to bargain in good faith with the
bargaining agent of its employees. Neither that section nor any other section
of the statute exempts the City from its duty to bargain merely because it
believes that a group of employees should no longer be in the unit, or because
it has filed a unit petition. The Union has been the bargaining agent for the
dispatchers throughout this dispute, and there was no justification for the
City's patently erroneous position in June, 1980, that it was not obligated to
bargain for the dispatchers. The City's duty to bargain with the Union for
the dispatchers continues unabated until such time as the City is successful
in getting the dispatchers removed from the bargaining unit.
In July, 1980, however, the City modified its position to conform with
the statutory requirements. On July 2nd, the City filed a petition for unit
clarification pursuant to Section 966(3). In the July 14th letter to the
Union, the City offered to bargain for the dispatchers, subject to the
conditions that discussions would not be binding with regard to the
dispatchers,[fn]1 that by negotiating the City did not waive its right to seek
unit clarification, and that the Union would agree that the City's agreement
to negotiate subject to the conditions did not constitute a prohibited
practice.
The City's offer to bargain subject to these conditions was proper. The
correct procedure for the City was to seek to remove the dispatchers by filing
a unit clarification petition, while concurrently making it clear to the Union
that any agreements reached through negotiations would no longer be applicable
to the dispatchers if they were removed from the unit. This is the procedure
which the City was pursuing in July, and the City's offer to bargain for the
dispatchers subject to the conditions cannot be construed as a refusal to
bargain.
We do not agree with the Union's contention that the City was refusing to
negotiate for the dispatchers in the July 14th letter. While the City nego-
tiator's statement in the letter that the City was under no obligation to
negotiate plainly is incorrect, the letter seemingly goes on to make an offer
to negotiate. If the Union negotiator truly suspected that the letter meant
that the City would not negotiate for the dispatchers, we believe that at
least a phone call to the City negotiator to confirm this suspicion was
warranted. Had the Union negotiator
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1. Considering its context in the letter, we construe this condition to mean
that discussions would not be binding regarding the dispatchers pending
the outcome of the unit clarification proceeding.
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in responding to the letter been informed that the City would not negotiate
for the dispatchers, we would have no difficulty in finding the City in
violation of Section 964(1)(E).
The Union made no efforts to confirm its beliefs, however, and, as the
record stands, the City made a proper, lawful offer to negotiate with the
Union. We accordingly cannot find that the City was refusing to bargain in
good faith, and must dismiss the prohibited practices complaint.
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(5), it is hereby ORDERED:
The prohibited practices complaint filed on August 5, 1980
in Case No. 81-09 is dismissed.
Dated at Augusta, Maine this 4th day of March, 1981.
MAINE LABOR RELATIONS BOARD
/s/_____________________________________
Edward H. Keith
Chairman
/s/______________________________________
Don R. Ziegenbein
Employer Representative
/s/_______________________________________
Wallace J. Legge
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)
(F) to seek a review by the Superior Court of this decision and order by
filing a complaint in accordance with Rule 80-B of the Rules of Civil
Procedure within 15 days after receipt of the decision and order.
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