STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 83-07
Issued: December 3, 1982
___________________________________
)
SANFORD FIREFIGHTERS ASSOCIATION, )
INC., Local 1624, International )
Association of Firefighters, )
AFL-CIO, )
)
Complainant, )
)
v. )
)
SELECTMEN AND TOWN ADMINISTRATOR )
OF THE TOWN OF SANFORD, ) DECISION AND ORDER
)
and )
)
ANNALEE ROSENBLATT, in her )
capacity as management consultant )
and negotiator for the Town of )
Sanford, )
)
Respondents. )
___________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on September 3, 1982 by the Sanford Firefighters
Association, Inc. (Union). The Union alleges in its complaint that the
Selectmen and Town Administrator of the Town of Sanford and management
consultant Annalee Rosenblatt (Town) violated 26 M.R.S.A. Section 964(1)(E)
by refusing to reduce to writing an agreement about longevity pay made during
bargaining. The Town filed an answer to the complaint on September 28, 1982,
denying that it had refused to reduce any agreement to writing.
A hearing on the case was held on November 10, 1982, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Harold S. Noddin. The Union was represented by George F. Wood,
Esq. and the Town by Annalee Z. Rosenblatt. The parties were given full
opportunity to examine and cross-examine witnesses, introduce evidence, and
make argument. At the conclusion of the hearing the parties presented oral
arguments.
JURISDICTION
The Union is the bargaining agent within the meaning of 26 M.R.S.A.
Section 968(5)(B) for the full-time firefighters employed by the Sanford Fire
Department.
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The Town of Sanford Selectmen and Town Administrator and Town management
consultant and negotiator Annalee Rosenblatt are public employers as defined
in 26 M.R.S.A. Section 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.
Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In the fall of 1981, the Union and the Town began negotiating for a
collective bargaining agreement to succeed an agreement with a term of
January 1, 1980 to December 31, 1981. One of the clauses in the then current
agreement which the Town wanted to change was Article 19, the longevity
provision, which provided in part:
"Firefighters shall be entitled to longevity pay as follows:
After seven (7) years of service, an increase of five (5)
percent; after an additional seven (7) years for a total of fourteen
(14) years of service, a second increase of five (5) percent for a
total of ten (10) percent."
The Town wanted to delete the percentage figures from the clause and
substitute set dollar amounts, in order to control the cost of its longevity
payments. The Union's position was that it would agree to a language change
in the longevity provision so long as no employee lost any longevity pay as a
result. Another article in the agreement about which the parties negotiated
about changing was Article 17, the call-back provision:
"Firefighters called back (excepting only the on-coming shift
thirty (30) minutes prior to shift change) shall be paid FD-1
rate and will be guaranteed at least two (2) hours minimum
plus longevity."
2. At a bargaining session on January 13, 1982 the Town proposed that the
5% figure in the longevity pay provision be changed to $600.00 and that the
10% figure be changed to $1200.00. Town negotiators also proposed that the
FD-1 rate provided for in the on-call provision be changed to the employee's
own rate of pay. In response to questions by the Union representatives, the
Town negotiators said that longevity pay would be based on base pay and that
no firefighters would suffer any loss of longevity pay. The Union representa-
tives agreed with the proposed language changes, and at a January 28th
bargaining session asked that the
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Town put its offer in writing.
3. The Town forwarded a draft contract to the Union for its review in
February, 1982, and the Union made some changes and corrections, including
some minor changes in both the longevity pay and on-call provisions. The
Union explained the draft contract to its membership on March 2nd, and the
membership approved the draft. The Town selectmen also approved the draft at
a March 2nd meeting. The longevity pay provision in the draft agreement, as
corrected by the Union, states in pertinent part:
"A. Employees shall be entitled to longevity pay as follows:
"1. After seven (7) years of service, an increase of $600
per year; after an additional seven (7) years of service for a
total of fourteen (14) years of service, a second increase of
$600 per year for a total of $1200 per year.
* * * *
"B. No firefighter receiving a longevity bonus greater than either
$600 or $1200 as appropriate, will suffer any loss of pay. The
current longevity bonuses will be redcircled during the term of
this Agreement."
The draft agreement also contains the following call-back pay provision:
"Employees called back (excepting only the oncoming shift thirty
(30) minutes prior to shift change) by a special call of thirteen
(13), shall be paid at their regular rate of pay and will be
guaranteed at least two (2) hours minimum."
4. On April 1, 1982, the Town implemented the draft agreement in its
entirety, although it had not yet been signed by either party. The fire-
fighters received paychecks on April 2nd, but their gross salaries did not
equal the amounts they had expected to receive under the new agreement. The
Union's Secretary-Treasurer asked the Fire Chief how the pay was being
computed and several days later, after checking with Town officials, the Chief
told the firefighters that longevity was not being paid for call-back or
extra-duty time. The Secretary/Treasurer then called the Town's chief
negotiator, Annalee Rosenblatt, who said the employees should receive
longevity pay for call back or extra duty time. On April 6, 1982, the union
membership voted to accept the contract as negotiated.
5. On April 7, 1982, the Town's chief negotiator wrote to the Union's
attorney, proposing that the parties interpret the new longevity pay clause as
follows:
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Any employee who earned more than $600 or $1200 in longevity pay in 1981 would
earn that same amount in 1982. An employee with between seven to fourteen
years of service would receive an additional 23.1 [cents] per hour in
longevity pay, which is $600 divided by the number of regular work hours in
the year, using 50 hours per week as the average work week. The additional
23.1 [cents] per hour would be paid for all on-call and extra-duty hours and,
if at the end of the year the employee had not received the total amount of
longevity pay that he had received in 1981, the Town would make a lump sum
payment to make up the difference.
6. The Union's Executive Board disagreed with the chief negotiator's pro-
posed interpretation of the clause, believing that it did not represent the
proper method for computing longevity pay and that it was contrary to the
parties' agreement that no employee would suffer any loss of longevity pay.
The Town Administrator and the Selectmen also apparently disagreed with the
proposed interpretation, because subsequent to April 7th they apparently
refused to make longevity pay part of the employees' base salary rates and
refused to pay longevity pay for on-call and extra-duty hours.
7. On April 12, 1982 the Town forwarded a completed contract to the Union
for signing, but the Union refused to sign, fearing that by doing so it might
waive its objection to the way the Town is paying longevity pay. The Town in
June, 1982, offered some new language for a longevity clause, but the Union
would not agree to this language.
DECISION
At issue is the question whether the Town has refused in violation of
26 M.R.S.A. Section 964(1)(E) to reduce to writing the parties' full agreement
concerning longevity pay.[fn]1 We find that since there was no meeting of
minds on how longevity pay is
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1/ Section 964(1)(E) provides that public employers are prohibited from
"[r]efusing to bargain collectively with the bargaining agent of its
employees as required by Section 965." Section 965(1)(D) states that
public employers and bargaining agents are mutually obligated "[t]o
execute in writing any agreements arrived at."
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to be paid, there is no agreement on that issue and therefore nothing else for
the parties to reduce to writing. We accordingly will dismiss the prohibited
practices complaint.
It is apparent that while the parties reached agreement on the particular
language of the longevity and on-call provisions of the successor contract,
they are in wide disagreement on the meaning of those provisions. The longev-
ity pay language, which appears in pertinent part in Finding of Fact No. 3,
provides in essence that after seven years of service an employee would earn
an additional $600 per year and after fourteen years of service an employee
would earn an additional $1200 per year, with the proviso that any employee
who earned more than $600 or $1200 in longevity pay in 1981 would suffer no
loss of pay. The new on-call language, which also appears in Finding of Fact
No. 3, provides in pertinent part that employees called back "shall be paid at
their regular rate of pay." The Union understood this new language to mean
that longevity payments would continue to be built into the base rate of pay
and that longevity pay accordingly would be paid for on-call or extra-duty
hours. The Town understood the language to mean that longevity pay would be
paid in proportionate payments throughout the year and that there would not be
specific longevity payments made for on-call or extra-duty hours.
After carefully reviewing the record and observing the demeanor of the
witnesses at the hearing, we believe that this disagreement results from an
honest misunderstanding which resulted from a mutual break-down in communica-
tions. In particular, the record shows that both parties participated in good
faith in negotiations, with a sincere desire to reach agreement on a new
contract. The fact that the Town negotiators stated at the January l3th
bargaining session that longevity would be figured on base pay and that no
employee would lose any pay does not mean at that point the Town agreed to the
Union's interpretation of the language. There are many ways of figuring
longevity based on base pay, and it appears that under the Town's interpreta-
tion no employee will suffer any loss of longevity pay from the amount he
earned in 1981. Since there was no meeting of minds on how longevity pay was
to be paid, despite good faith negotiations by the parties, the Town cannot be
said to have refused to reduce any agreement regarding the method of payment
to writing. See, e.g., Caribou School Dept. v. Caribou Teachers Association,
402 A.2d 1279, 1285-1286 (Me. 1979); Fox Island Teachers Association v.
M.S.A.D. No. 8 Board of Directors, MLRB No. 81-28 at 5-6 (Apr. 22, 1981). The
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Union's complaint therefore must be dismissed.[fn]2
We note that there are at least two options available to the parties for
resolving their dispute. First, the parties can return to the bargaining
table and attempt to negotiate a mutually satisfactory method of paying
longevity pay. Since both parties ratified the new contract and since it has
been in full force and effect for over seven months, the parties have a final
agreement on all issues except for the method of paying longevity pay, and it
is possible that the parties themselves can resolve this one remaining issue
in an expeditious manner. Second, the Union could sign the new agreement
while reserving the right to grieve the meaning of the longevity and on-call
provisions, and then get an arbitrator's interpretation of the provisions.
Whatever steps the parties take to resolve their disagreement, we expect that
they will continue to display the same good faith that has characterized their
previous negotiations.
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. Section 968(5), it is hereby ORDERED:
That the Sanford Firefighters Association, Inc.'s prohibited
practices complaint in this proceeding is hereby dismissed.
Dated at Augusta, Maine, this 3rd day of December, 1982.
MAINE LABOR RELATIONS BOARD
/s/_________________________________________
The parties are advised of their Edward H. Keith, Chairman
right, pursuant to 26 M.R.S.A.
Section 968(5)(F), to seek a
review by the Superior Court /s/_________________________________________
of this decision by filing a Don R. Ziegenbein, Employer Representative
complaint in accordance with
Rule 80B of the Rules of Civil
Procedure within 15 days after /s/_________________________________________
receipt of this decision. Harold S. Noddin, Employee Representative
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2/ We of course have no authority under the Act to determine which, if
either, of the parties' interpretations of the contract language is
correct, and we intimate no opinion whatsoever on that point.
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