STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-40
Issued: September 1, 1981
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)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant ) DECISION AND ORDER
)
vs. )
)
CITY OF WATERVILLE, )
)
Respondent. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on January 30, 1981, by Waterville Clerical Employees Unit of
Teamsters Local Union No. 48 ("Union"). The Union alleges that the City of
Waterville ("Employer") did violate 26 M.R.S.A. 964(1)(A), (C), and (D) and
965(1)(A), (C), and (D), by refusing to agree to proposed dates for mediation
sessions, by failing to timely prepare the final written contract, and by
encouraging the members of the unit to file a decertification petition through
permitting an employee to circulate and solicit signatures therefor during
working hours. The Employer filed a response to the Union's complaint moving
to dismiss a portion of the complaint, on the basis that the events complained
of therein occurred beyond the limitation period set forth in 26 M.R.S.A.
968(5)(B), and denying that the Employer's actions violated any provisions of
the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq.
("Act").
A pre-hearing conference in this matter was held on February 23, 1981,
Alternate Chairman Donald W. Webber presiding. As a result of the pre-hearing
conference, Alternate Chairman Webber issued a Pre-Hearing Conference
Memorandum and Order, dated February 25, 1981, the contents of which are
incorporated herein by reference.
A hearing was held on March 25, 1981, Alternate Chairman Donald W.
Webber presiding with Employer Representative Don R. Ziegenbein and Alternate
Employee
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Representative Harold S. Noddin. Teamsters Local Union No. 48 was represented
by Walter J. Stilphen, Jr., its secretary and treasurer, and the City of
Waterville by its City Solicitor George F. Terry, IV, Esq. The parties were
given full opportunity to examine and cross-examine witnesses, introduce
documentary evidence, and make argument. Both parties filed appropriate post-
hearing briefs which were duly considered by the Board.
JURISDICTION
Teamsters Local Union No. 48 is the certified bargaining agent for the
employees of the clerical unit in the employ of the City of Waterville. The
City of Waterville 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 Maine Labor Relations Board
("Board") finds:
1. That the-Complainant, Teamsters Local Union No. 48, State, County,
Municipal and University Employees in the State of Maine ("Union") is and at
all times relevant hereto has been the certified bargaining agent for all
employees of the Waterville Clerical Employees Unit, within the meaning of 26
M.R.S.A. 962(2).
2. That the City of Waterville ("Employer") is and at all times relevant
hereto has been a public employer, as defined in 26 M.R.S.A. 962(7).
3. That the Union, on behalf of the employees of the Waterville Clerical
Employees Unit, filed for an election, which was held on January 3, 1980, as a
result of which election the Union was certified as the bargaining agent for
the said employees, on the aforementioned date.
4. That on several occasions during both the negotiations and the
mediation process, either the Employer or the Union were unable to agree to
proposed dates for negotiation or mediation sessions.
5. That, on October 28 and November 3, 1980, mediation sessions were
conducted in Waterville with both parties in attendance.
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6. That, on December 2, 1980 following mediation for another unit, the
Union asked the Employer whether the settlement proposal, worked out for the
other unit, could be offered to the clerical unit.
7. That on December 16, 1980, the Employer's City Solicitor advised the
Union of the City's offer, which was taken back to the employees for their
approval.
8. That on December 17, 1980, the Union advised the Employer's City
Solicitor that the City's offer had been accepted, at which time the said
Solicitor agreed to draft the agreement for the parties to execute.
9. That, because of a change of personnel in the Employer's management
and because of the legislative process in the City of Waterville, the
agreement, mentioned in paragraph 8 hereof, was not executed until April 23,
1981.
10. That the term of the collective bargaining agreement between the
parties, as set by Article XXXVII thereof, was from July 1, 1980 to June 30,
1981.
11. That prior to September 30, 1980, Mrs. Deborah L. Parker, one of the
unit employees who had always been opposed to the Union's representation of
the said employees, met with the Waterville City Administrator to ask him how
to proceed with the decertification process. The Waterville City
Administrator advised Mrs. Parker to contact the Board, for such information,
and Mrs. Parker did so.
12. That Mrs. Parker circulated and filed two separate petitions for
decertification of the Union; the first being filed on January 8, 1981 and the
second on April 27, 1981.
DECISION
Our review of the above facts raises the question of whether execution
of a collective bargaining agreement, by the parties, has rendered the
allegations contained in the Union's complaint moot. The earliest decisions
held that subsequent execution of a collective bargaining agreement virtually
mooted any possible prohibited practice under Section 965(1)(C) of the Act.
Bangor Education Association v. Bangor School Committee, M.L.R.B. No. 73-12
(1973). We have, however, further refined the mootness test and broadened its
application to cover the broad range of possible violations under the Act.
The current mootness test was set forth in our recent case of Palermo Teachers
Association v. Palermo School
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Committee, M.L.R.B. No. 81-29 (5/22/81). In said latter decision, we stated:
"Mootness normally is not found unless the reviewing agency is
satisfied that the successor agreement fully cures the unfair
labor practice, is consistent with the policies of the col-
lective bargaining law, and where the record of the controversy
shows that there is minimal likelihood for recurrences of the
illegal conduct."
Palermo, supra, at p. 8. We need only look to the relief sought by the Union
in its complaint to confirm that the alleged prohibited practice has been
fully cured, through execution of the agreement. The Union's prayer for
relief herein was as follows:
"The relief sought shall include:
(A) An order directing the City to prepare and execute the agreement
tentatively agreed to on December 18, 1980.
(B) An order directing,the employer to put into effect all the provi-
sions of the agreement retroactive to July 1, 1980.
(C) An order directing that any representation proceedings be stayed
pending the resolution of the Prohibited Practice Complaint, or
further time as the board may determine.
(D) That the employer cease and desist from prohibited practices found.
(E) Any other relief the Board finds appropriate."
The existence and execution of a collective bargaining agreement by the
parties, containing an article making its provisions retroactively effective
to July 1, 1981, satisfies the prayers contained in sub-paragraphs (A) and (B)
of the relief sought. The representation proceedings, to wit; the two peti-
tions for decertification; have been de facto stayed by the Board and their
status will be decided herein below, thereby satisfying sub-paragraph (c) of
the relief sought. We have found below that Mrs. Parker acted on her own
initiative in instituting the decertification campaign and.that the balance
of the complaint's allegations dealt with a failure to bargain in good faith,
therefore, execution of the contract satisfied sub-paragraph (D) of the
prayer. The Board finds no other relief appropriate, thereby answering sub-
paragraph (E) of the prayer for relief. The alleged prohibited practice has,
therefore, been fully cured through execution of the agreement.
The second prong of the mootness test is that the subsequent agreement be
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consistent with the policies of the collective bargaining law. The major
thrust of the Act is the fostering of the relationship between public
employers and their employees, through their representative bargaining agents'
in the collective bargaining process. 26 M.R.S.A. 961. In this case, the
parties were able to resolve their differences and execute a collective
bargaining agreement. This, surely, is in satisfaction of the principles
expressed in the Act.
The final tine of the mootness test is the minimal likelihood for
recurrence of illegal conduct. We are well aware of the stormy history of
collective bargaining between the parties in this case, since 1978, and the
numerous complaints arising therefrom. We are, however, encouraged by the
recent change in the Employer's bargaining personnel and the subsequent
cordial relationship between the parties. All of the elements of the moot-
ness test having been met, we will dismiss the Union's complaint on said
grounds.
We will now consider the two Petitions for Decertification now pending
in connection with this unit. At the outset, we note that Mrs. Parker has,
in these efforts, acted out of her own deeply and sincerely felt anti-union
animus, without assistance or encouragement from the Employer. The Employer's
only involvement herein was, in answer to Mrs. Parker's inquiries about
decertification procedure, to refer her to the Board for information. We do
not find that the Employer's neutral advice violated any provision of the Act.
The filing of the petitions must be considered in the context of the filing
limitation period set forth in 26 M.R.S.A. 967(2). Since there was in
effect a valid collective bargaining agreement between the parties, expiring
June 30, 1981; the "window period," during which petitions for decertification
could properly be filed, began on April 1, 1981 and ended on May 1, 1981. The
First petition falls outside of said "window period" and, must, therefore, be
dismissed. The second petition was duly and timely filed. We will remand the
latter petition to the Executive Director for his action, under section 967(2)
of the Act.
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:
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1. That the prohibited practice Complaint filed on January 30,
1981 by Teamsters Local Union No. 48, State, County, Munici-
pal and University Employees in the State of Maine be and
hereby is dismissed; and
2. That the Petition for Decertification of Bargaining Agent for
the Waterville Clerical Employees Unit, filed January 8,
1981, be and hereby is dismissed; and
3. That the Petition for Decertification of Bargaining Agent for
the Waterville Clerical Employees Unit, filed April 27, 1981,
be remanded to the Executive Director for his appropriate
action, pursuant to 26 M.R.S.A. 967(2).
Dated at Augusta, Maine, this 1st day of September, 1981.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26 /s/____________________________________
M.R.S.A. 968(5)(F) to seek Donald W. Webber
a review by the Superior Alternate Char man
Court of this decision by
filing a complaint in
accordance with Rule 80B
of the Rules of Civil /s/____________________________________
Procedure within 15 days Don R. Ziegenbein
after receipt of this decision. Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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