STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-15 Issued: March 2, 1981 ______________________________________ ) COUNCIL NO. 74, AMERICAN FEDERATION ) OF STATE, COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) Complainant, ) ) DECISION AND ORDER V. ) BANGOR WATER DISTRICT, ) ) Respondent. ) ______________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. 968(5)(B) on September 22, 1980 by Council No. 74 of the American Federation of State, County and Municipal Employees, AFL-CIO (Union). The Union alleges in its complaint that the Bangor Water District (Water District) violated 26 M.R.S.A. 964(1)(E) by refusing to commence negotiations with the Union. The Water District filed an answer on October 14, 1980, urging that it is not required to bargain with the Union. A pre-hearing conference on the case was held on October 21, 1980, Alternate Chairman Gary F. Thorne presiding. Alternate Chairman Thorne issued on October 22, 1980 a Pre-Hearing Conference Memorandum and Order, the con- tents of which are incorporated herein by reference. The parties agreed at the pre-hearing conference that a hearing was not necessary since no factual issues were in dispute, and that the Board would decide the case based on written briefs submitted by the parties. Both parties filed briefs, the Union being represented by H. Ross Ferrell, Jr., and the Water District by Gerald E. Rudman, Esq. and Frank T. McGuire, Esq. The briefs have been considered by the Board, Alternate Chair- man Thorne presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Wallace J. Legge. -1- ______________________________________________________________________________ JURISDICTION The Union is a public employee organization and a bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B). The Water District 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. On January 14, 1980, the Union was elected the bargaining agent for a bargaining unit of Water District maintenance, operations and service workers by a vote of 11 to 10. A twenty-second voter cast a ballot at the election, writing the word "No" in the square beneath the "no representation" choice. The Board's Executive Director determined that this ballot was void, and certified the Union as the bargaining agent for the maintenance, opera- tions and service workers bargaining unit. 2. The Water District appealed the Executive Director's determination to the Board, urging that the ballot with the irregular marking should have been counted in favor of the "no representation" choice. In March, 1980, the Board in Case No. 80-A-02 affirmed the Executive Director's actions and dismissed the Water District's appeal. 3. The Water District then filed an appeal and a motion for stay of the Board's decision in the Penobscot County Superior Court. The Superior Court denied the motion for stay, and on August 12, 1980, issued a decision affirm- ing the Board's decision. On August 25th, the Water District appealed the case to the Law Court, where a decision on the question whether the Union is properly certified as the bargaining agent is pending in Law Docket No. PEN-80-51. 4. Shortly after the election in January, 1980, the Union filed a prohibited practices complaint against the Water,,District in MLRB Case No. 80-26, alleging among other things that the Water District made false and misleading pre-election -2- ______________________________________________________________________________ campaign statements to its employees. After conducting a hearing on the case and receiving briefs from the parties, the Board on December 22, 1980 issued a decision which concluded that the Water District's pre-election statements violated 26 M.R.S.A. 964(1)(A) and (B). To remedy these violations, the Board ordered the Water District to recognize and, upon request, bargain with the Union as the exclusive bargaining agent for the maintenance, operations and service workers. The Board noted that even if the Law Court overturned the Executive Director's certification of the Union, the Water District none- theless must recognize and bargain with the Union for a reasonable period of time. 5. On August 12, 1980, the date that the Superior Court issued its decision, the Union pursuant to 26 M.R.S.A. 965(1)(B) sent a ten day notice requesting bargaining to the Water District. Counsel for the Water District responded in writing to the notice on August 14, 1980, stating that the Water District would not enter into negotiations with the Union until the appeal of the Union's certification was finally concluded. The Union sent a second 10 day notice to the Water District on August 29, 1980. On September 15th, the Water District again responded that it would not negotiate until the certifi- cation case was resolved. DECISION The Water District contends it is not obligated to bargain with the Union, despite the Union's January 14, 1980 certification as bargaining agent, because 1) the certification has been appealed by the Water District, and 2) Rule 62(e) of the Maine Rules of Civil Procedure stays the certification pending decision by the Law Court on the appeal. We find the Water District's arguments unpersuasive, and conclude it violated Section 964(1)(E) by refusing to bargain with the certified bargaining agent of its employees. The law is well-settled that an employer must bargain with the certified bargaining agent so long as the certification is valid. See, e.g., NLRB v. Martz Chevrolet, Inc., 505 F.2d 968, 969-970 (7th Cir. 1974); NLRB v. Corral Sportswear Co., 383 F.2d 961, 962 (10th Cir. 1967), cert. denied 390 U.S. 995, 88 S.Ct. 1196, 20 L.Ed.2d 94 (1968); Allstate Insurance Co., 234 NLRB 193, 194 (1978). There has been no ruling that the certification is invalid in the present case. On January 14, 1980, the Executive Director voided the improperly marked ballot and certified -3- ______________________________________________________________________________ the Union as bargaining agent. The Water District appealed the Executive Director's actions to the Board, and in March, 1980, the Board affirmed the certification and dismissed the Water District's appeal. The Water District appealed the Board's decision to the Superior Court, and filed a motion for stay of the certification. The Superior Court denied the motion for stay in April, 1980, and on August 12, 1980 affirmed the Board's decision upholding the certification. On August 25th, the Water District appealed to the Law Court, where the case currently is pending.[fn]1 Thus, from January 14, 1980 to the present the Union has been validly certified as the bargaining agent, and the Water District has been obligated by 26 M.R.S.A. 965(1)(C) to bargain with it. The mere fact that the validity of the certification is on appeal, in the absence of a stay or an order overturning the certification, does not relieve the employer from its statutory duty to bargain. A rule to the contrary would be at odds with the Act's purpose to promote collective bargaining in the public sector. 26 M.R.S.A. 961; State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980). This is true because employers would be encouraged to appeal bargaining agent certifications, and then to delay prosecution of the appeal, in order to avoid bargaining and to buy time in which the union's majority status might be dissipated. We would act contrary to the purpose of the Act were we to hold that the mere filing of an appeal from a certification relieves the employer of its'duty to bargain until the appeal is finally decided. We also cannot agree with the Water District's argument that the certification was stayed by Rule 62(e) once the appeal to the Law Court was filed. Rule 62(e) provides in pertinent part "the taking of an appeal from a judgment shall operate as a stay of execution upon the judgment during the pendency of the appeal." As we understand the meaning and intent of Rule 62(e), there are several reasons why the Rule did not apply to our order affirming the certification when the appeal ____________________ 1. Even if the Law Court overturns the certification, the Water District is still obligated to bargain with the Union because, as determined in MLRB Case No. 80-26, its unlawful preelection actions undermined the Union's majority support and destroyed the conditions necessary for a free and fair election. -4- ______________________________________________________________________________ to the Law Court was taken. First, while Rule 62(e) automatically stays Superior Court judgments pending appeal, administrative orders underlying Superior Court judgments apparently are not stayed by Rule 62(e). In Cumberland Farms Northern, Inc. v. Maine Milk Commission, 377 A.2d 84 (Me. 1977), the Superior Court over- turned in part and upheld in part two Commission pricing orders. The Court noted that while the Superior Court's judgment was stayed, the Commission's orders presumably remained in effect throughout the appeal: "In light of M. R.Civ. P. Rule 62(e), which automatically stays judgments of the Superior Court pending appeal, Order 76-2 is presumably now in effect." Id., at 94. Thus, even if the Superior Court's decision was stayed, we do not see that Rule 62(e) stayed our bargaining agent certification. Second, Rule 62(e) may apply only to judgments for the payment of money. The Massachusetts Court of Appeals has ruled that it is not clear that Mass. R. Civ. P. 62(d), which is nearly identical to Rule 62(e), has any application to a case "in which there has been no judgment for the payment of money damages." Schlager v. Board of Appeal of Boston, ____ Mass. App. ____, 399 N.E.2d 30, 33 (1980). In short, the "stay of execution" provided by Rule 62(e) simply may not apply to an order affirming the certification of a bargaining agent. Finally, our reading of Rule 62(e) is consistent with the Rule's purpose "to preserve the status quo at the time judgment was entered." Tibbetts v. Tibbetts, 406 A.2d 78, 80 (Me. 1979). The status quo on January 14, 1980, the date upon which the Union was certified, was that a majority of employees casting valid ballots wanted the Union as their bargaining representative. The status quo continued to August 12, 1980, when the Superior Court issued its order. If the certification is stayed by Rule 62(e), the employees would lose this representation during the period of the appeal. Application of Rule 62(e) thus would not preserve the status quo, but would upset the status quo existing when judgment was entered. In sum, because of the substantial uncertainties regarding the applica- bility of Rule 62(e) to our certification order, we cannot conclude that the certification was stayed by Rule 62(e). A stay of the certification during the appeal to the -5- Law Court would be contrary to the purpose of the Act, for the reasons dis- cussed supra. We conclude that the certification has remained in effect continuously since January 14, 1980, and that the Water District violated Section 964(1)(E) by refusing to bargain with the Union as the certified bargaining agent of the Water District employees. REMEDIES Upon finding that a party has engaged in a prohibited practice, we are directed by Section 968(5)(C) to order the party "to cease and desist from such prohibited practice and to take such affirmative action . . . as will effectuate the policies of this chapter." We therefore will order that the Water District cease and desist from refusing to bargain collectively with the Union, and take the affirmative action of bargaining with the Union upon request and posting copies of the attached notice at all places where notices to employees customarily are posted. A typical remedy in cases where the employer refuses to bargain with a newly-certified union is to extend the union's certification year. See, e.g., Glomac Plastics, Inc. v. NLRB, 592 F.2d 94, 100-101 (2nd Cir. 1979). This remedy effectuates the policies of the Act because "it is designed to make up to the union any opportunity lost by it to reach agreement during the certi- fication year by reason of dilatory tactics on the part of the employer." Local 2338, IBEW v. NLRB, 499 F.2d 542, 544 (D.C.Cir. 1974). Section 967(2) provides a union one year in which to attempt to reach agreement with the employer. When the employer refuses to bargain during the certification year, the statutory policy of promoting collective bargaining is frustrated, and the employees are improperly denied the services of their selected bargaining agent. The appropriate remedy in such a case is to construe the initial period of certification as beginning on the date the employer starts to bargain in good faith. See, e.g., Allstate Insurance Co., supra at 194. We accordingly will order that the Union's initial certifica- tion year commence on the date upon which the Water District commences to bargain in good faith. As provided in Section 967(2), no decertification petition or any other question concerning representation may be raised during this certification year. -6- ______________________________________________________________________________ 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: That the Bangor Water District, and its representatives and agents: 1. Cease and desist from refusing to bargain collectively with Council 74, AFSCME as the sole and exclusive bargaining agent for the employees in the operations, maintenance and service workers bargaining unit. 2. Take the following affi mative actions necessary to effec- tuate the policies of the Act: (a) Bargain upon request with Council 74, AFSCME as the sole and exclusive representative of the employees in the operations, maintenance and service bargaining unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its facilities copies of the attached Notice. Copies of the Notice, after being signed and dated by a Water District representative, shall be posted immediately by the Water District, and shall be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. The Water District shall take reasonable steps to in- sure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Executive Director, in writing, within 20 days from the date of this Decision and Order, of the steps the Water District has taken to comply with this Order. It is hereby directed that the certification year of Council 74, AFSCME shall begin on the date upon which the Bangor Water District commences to bargain in good faith with the Union as the sole and exclusive bargaining agent of the employees in the operations, maintenance and service bargaining unit. -7- ______________________________________________________________________________ Dated at Augusta, Maine this 2nd day of March, 1981 MAINE LABOR RELATIONS BOARD /s/____________________________________ Gary F. Thorne Alternate Chairman /s/____________________________________ Don R. Ziegenbein Employer Represent@tive /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 review of this decision by the Superior Court by filing a com- plaint in accordance with Rule 80B of the Rules of Civil Procedure within 15 days after receipt of this decision. -8- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT refuse to bargain collectively with Council 74 of the American Federation of State, County and Municipal Employees, AFL- CIO, as the sole and exclusive bargaining agent of the employees in the operations, maintenance and service bargaining unit. (2) WE WILL, upon request, bargain with Council 74, AFSCME as the sole and exclusive bargaining representative of the operations, maintenance and service bargaining unit and, if an understanding is reached, embody such understanding in a signed agreement. BANGOR WATER DISTRICT Dated: _________________________ By: _______________________________ Peter Caldwell General Manager _________________________________ This Notice must remain posted for 60 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289- 2016.