STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 81-50
ISSUED: September 24, 1981
________________________________________
)
CITY OF WESTBROOK; WESTBROOK )
CITY COUNCIL, )
)
Complainant )
)
v. )
)
WESTBROOK POLICE UNIT OF LOCAL 1828, )
COUNCIL 74, AFSCME, AFL-CIO ) DECISION AND ORDER
)
and )
)
MARY MORSE, FRANCIS DONAHUE, and )
WAYNE SYPHERS, )
)
Respondents. )
________________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on May 1, 1981, by the City of Westbrook; Westbrook City Council
(Employer). The Employer alleges that the Westbrook Police Unit of Local
1828, Council 74, AFSCME, AFL-CIO (Union) and its agents or officers, Mary
Morse, Francis Donahue, and Wayne Syphers, did violate 26 M.R.S.A. 964(2)(B)
by failing to bargain in good faith, to wit: (1) failing to clothe the
Union's negotiators with sufficient knowledge, guidelines, and authority to
effectively conduct negotiations or to reach tentative agreement at the table;
(2) failing to properly present to the Union membership the tentative contract
agreement of August 25, 1980, and thereby failing to use the best efforts of
the negotiating team to secure ratification; and (3) failing to meet with
Union membership during 10 months of negotiations; failing to inform the Union
membership of the course of negotiations, of the City's proposals, and the
Union team's tentative agreements; and failing over the course of 10 months of
negotiations, two Mediation sessions, one formal ratification preentation, and
a Fact-Finding Hearing to establish any guidelines or authority for the Union
negotiators. The Union filed a response to the Employer's complaint on
May 22, 1981, denying that the actions of the Union or those of its agents or
officers violated any provision of the Municipal Public Employees Labor
Relations
-1-
______________________________________________________________________________
Act, 26 M.R.S.A. 961, et seq. (Act).
A pre-hearing conference on the case was held on May 29, 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 June 4, 1981, the contents of which are
incorporated herein by reference.
A hearing was held on July 15, 1981, Chairman Edward H. Keith presiding
with Alternate Employer Representative Thacher E. Turner and Employee Repre-
sentative Wallace J. Legge. The City of Westbrook was represented by its
City Solicitor James E. Gagan, Esq. and Council 74 by Mary G. Morse, field
representative. The parties were given full opportunity to examine and cross-
examine witnesses, introduce documentary evidence, and make argument. Both
parties filed appropriate briefs which were duly considered by the Board.
JURISDICTION
The City of Westbrook; Westbrook City Council is a public employer, as
defined in 26 M.R.S.A. 962(7). The Westbrook Police Unit of Local 1828,
Council 74, AFSCME, AFL-CIO, is the certified bargaining agent for all
employees of the Westbrook Police Department; except the Chief, captain,
secretary, custodian, matron, crossing guides, and all special officers.
Mary Morse, Francis Donahue, and Wayne Syphers have all been joined in this
action in their capacities as agents or officers of the aforementioned Union.
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 City of Westbrook, a municipal corporation having a
principal place of business at 790 Main Street, Westbrook, Maine, and the
Westbrook City Council, the legislative body of the aforementioned City, are
public employers, as defined in 26 M.R.S.A. 962(7).
2. That the Westbrook Police Unit of Local 1828, Council 74, AFSCME,
AFL-CIO, is the certified bargaining agent representing all of the employees
of the Westbrook Police Department; except the Chief, captain, secretary,
custodian, matron, crossing
-2-
______________________________________________________________________________
guides, and all special officers.
3. That Mary G. Morse, field representative of Council 74, AFSCME, is
and at all times relevant hereto has been an agent of the Union mentioned in
paragraph 2 hereof. Francis Donahue is the Past President and bargaining team
member for the Union mentioned in paragraph 2 hereof. Wayne Syphers is the
President and bargaining team member of the Union mentioned in paragraph 2
hereof.
4. That there is no collective bargaining agreement currently in force
between the parties. The prior collective bargaining agreement covered the
period from July 1, 1977 to June 30, 1980. Thereafter, its terms were to
remain in effect until a new contract was agreed upon or it was terminated
upon ten days written notice to the other party. The City, on July 9, 1980,
gave notice of termination which became effective July 21, 1980 to so
terminate the effect of the said expired agreement.
5. That the parties began negotiations for a successor agreement on
May 20, 1980. A second meeting was held on June 2, 1980, at which time
written ground rules were established.
6. That, at the June 2, 1980 session, the Employer expressed its
intention to propose a completely redrafted contract. The Employer and the
Union mutually agreed on the need to clarify the parties' agreement, to reduce
the number of grievances and to assure that Departmental practices and
policies were consistent with contract language, however, the Union did not
agree to a redrafted contract of a change in format therein.
7. That, on June 12, 1980, the Employer's negotiating team presented a
proposed 25 of 28 contract articles. The three remaining proposed articles
were to be presented by the Employer at subsequent sessions.
8. That the Union team, on June 12, 1980, did not object to the format
of the proposals nor to the fact that the Employer proposed a complete
redrafting of the agreement. The Union did, however, object to the substance
of the proposed articles and the significant language changes therein from
that in the prior contract.
9. That, on June 20, 1980, the parties bargained over the Employer's
June 12, 1980, proposal. The Union submitted a written response adopting the
Employer's proposed contract format.
-3-
______________________________________________________________________________
10. That the parties continued to bargain using the Employer's proposed
redrafted contract language as the basis for negotiations through impasse,
which was reached on August 7, 1980. The parties met and negotiated approxi-
mately 10 times prior to impasse.
11. That a mediation session was held at the Employer's request on
August 25, 1980. The parties, with the Mediator's assistance, reached
tentative agreement at said session.
12. The Union membership, subsequent to August 25, 1980, failed to ratify
the agreement.
13. That a second mediation session was held on September 10, 1981.
The Union team at this session did not object to the format of prior Employer
proposals. The Union team indicated that their membership objected to six
specific items, contained in the Union's written proposal of September 10,
1980.
14. That Fact-Finding was requested by the Employer, on October 28, 1980,
and a hearing was held on December 9, 1980. The Fact-Finding Report was
issued December 18, 1980, and contained recommendations on 8 items, four items
raised by the Employer in its request for Fact-Finding and four additional
items raised by the Union as being "in controversy." The Union did not
present, as items in controversy in Fact-Finding, the remaining 20 or more
contract articles which the parties had tentatively agreed.
15. That, February 2, 1981, the Employer, at the Union's request,
provided a copy of all items, to which tentative agreement had been reached
during the preceding 9 months of bargaining, to the Union team.
16. That, on February 4, 1981, the Employer made a total package offer
to the Union containing: the items tentatively agreed to, the Fact-Finder's
recommendation, and one additional item which the Fact-Finding Panel declined
to make findings on. No response was received by the Employer thereto, for
over four weeks.
17. That the parties met again on March 18, 1981. At that time, Mary
Morse, the Union's chief negotiator, stated that the Employer's package
proposal of February 4, 1981, had been discussed with the Union membership;
that the Union membership would not accept the totally rewritten contract,
without additional substantive concessions on the part of the Employer; that
the Union membership would not accept the 20 rewritten articles, to which the
Parties had tentatively agreed; and that
-4-
______________________________________________________________________________
the only proposed contract that the Union team could "sell" with certainty
would be a contract with no language changes and a 10% across-the-board wage
increase.
18. That the last comment, mentioned in paragraph 17 hereof and made by
the Union's chief negotiator, was spoken in the heat of argument, in the
highly-charged atmosphere at said March 18th session, and did not reflect the
Union's true bargaining position at that time.
19. That, during the course of the negotiations between the parties, the
Union bargaining team held 3 or 4 meetings with the Union membership, to
explain the progress of the negotiations and to receive imput thereon from
the rank and file.
20. That, in addition to the meetings mentioned in paragraph 19 hereof,
the representatives of each shift on the Union bargaining team explained to
their fellow officers, through informal conversations, the progress of the
negotiations between the parties.
21. That throughout the course of the negotiations, the Union bargaining
team did: negotiate within its guidelines, as set forth by the Union member-
ship; did keep the Union membership informed as to the nature and progress of
the negotiations; and sincerely believed that the rewritten format for the
new contract could be ratified by the rank and file, given sufficient
substantive concessions in said new contract on the part of the Employer.
DECISION
The nub of this case centers around the statement made by the chief Union
negotiator at the meeting of March 18, 1981 and contained in paragraph 17 of
our findings of fact. The Union negotiator stated that "the only proposed
contract that the Union team could 'sell' with certainty [to the Union's
membership] would be a contract with no language changes and a 10% across-the-
board wage increase." Coming, as it did, after ten months of bargaining,
mediation, and fact-finding; this statement could only result in consterna-
tion, frustration, and choler on the part of the Employer. Said utterance was
inept and unprofessional, especially since it was spoken by an experienced
negotiator, however, we do not find that said comment accurately reflected the
Union's bargaining position when it was delivered. The proper course for the
Union, at that point, would have been for its chief negotiator
-5-
______________________________________________________________________________
to have voiced the membership's specific objections to the proffered agree-
ment. Both parties could then have returned to the table and negotiated over
the particular subjects at issue.
We have often stated that negotiators must be clothed with sufficient
knowledge, guidelines, and authority to make tentative agreements where their
principal party reserves the right to ratify. Fox Island Teachers Assn. v.
M.S.A.D. #8 Board of Directors, M.L.R.B. No. 81-28, at page 6, n.1 (4/22/81).
Had we found that the aforementioned comment accurately conveyed the Union
membership's stance on the proposed agreement, particularly concerning the
new format therefor, we would have found a violation of the Union's duty to
bargain in good faith. The statement would be prima facie evidence in
substantiation of the alternative theories presented by the Employer in its
brief. The total rejection of the new format would indicate either the Union
negotiators were operating beyond the negotiating guidelines, set forth by the
membership, or said guidelines had been changed, without the required notice
to the negotiators for the Employer.
ORDER
On the basis of the foregoing findings of fact and decision, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. 968(5), it is ORDERED:
That the prohibited practice complaint filed on May 1, 1981 by
the City of Westbrook; Westbrook City Council, in Case No. 81-50,
be and hereby is dismissed.
Dated at Augusta, Maine, this 24th day of September, 1981.
MAINE LABOR RELATIONS BOA
The parties are advised of
their right pursuant to /s/_______________________________________
26 M.R.S.A. 968(5)(F) to Edward H. Keith, Chairman
seek a review by the Superior
Court of this decision by
filing a complaint in /s/_______________________________________
accordance with Rule 80B Thacher E. Turner, Alternate Employer
of the Rules of Civil Representative
Procedure within 15 days
after receipt of this
decision. /s/_______________________________________
Wallace J. Legge, Employee Representative
-6-