STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-15
Issued: March 2, 1981
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)
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.
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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
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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
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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
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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.
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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
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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.
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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.
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______________________________________________________________________________
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.
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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
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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.