STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 83-09
Issued: June 30, 1983
___________________________________
)
THE AMERICAN FEDERATION OF STATE, )
COUNTY, AND MUNICIPAL EMPLOYEES, )
AFL-CIO, COUNCIL 74, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
THE CUMBERLAND COUNTY )
COMMISSIONERS AND ANNALEE )
ROSENBLATT, )
)
Respondents. )
___________________________________)
This is a prohibited practices case, filed pursuant to Title 26 M.R.S.A.
Section 968(5)(B) on October 25, 1982, by Council 74, American Federation of
State, County, and Municipal Employees, AFL-CIO ("Union"). The Union alleges
that the Cumberland County Commissioners ("Employer") and Annalee Rosenblatt,
in her capacity as the agent of the Employer, violated 26 M.R.S.A. Sections
964(1)(A), (B), (C), and (E) and 26 M.R.S.A. Sections 965(1)(C), (D), and (E)
by unilaterally withdrawing a tentative agreement, by substituting different
language therefor in the draft collective bargaining agreement, and by
threatening to reopen negotiations on all issues, should the Union membership
fail to ratify the Employer's version of the draft collective bargaining
agreement. The Employer, on November 18, 1982, filed an answer and a
counterclaim, denying that any of its actions constitute violations of the
Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et
seq. ("Act"), and alleging that the Union violated 26 M.R.S.A. Section
964(2)(B) and 26 M.R.S.A. Section 965(D) by refusing to present the draft
collective bargaining agreement to the Union membership for a ratification
vote and, should said membership vote to ratify said agreement, to execute the
same. At the Pre-Hearing Conference, the Union denied that any of its actions
constituted violations of the Act.
A Pre-Hearing Conference on the case was held on November 30, 1982,
Alternate Chairman Donald W. Webber presiding. On December 6, 1982, Alternate
Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
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Hearings on the case were held on December 8 and 21, 1982 and January 7,
1983, Alternate Chairman Donald W. Webber presiding, with Employer Representa-
tive Don R. Ziegenbein and Employee Representative Harold S. Noddin. The
Union was represented by Stephen P. Sunenblick, Esq., and the Employer was
represented by Harry R. Pringle, Esq. and Annalee Z. Rosenblatt. The parties
were given full opportunity to examine and cross-examine witnesses, introduce
evidence, and make argument. Both parties filed post-hearing briefs, which
have been considered by the Board.
JURISDICTION
The American Federation of State, County, and Municipal Employees,
AFL-CIO, Council 74 is the bargaining agent, within the meaning of 26 M.R.S.A.
Section 962(2), for the Cumberland County Sheriff's Department Employees
Bargaining Unit. The Cumberland County Commissioners are the public employer,
as defined in 26 M.R.S.A. Section 962(7), of the employees in the aforemen-
tioned bargaining unit. Annalee Z. Rosenblatt, at all times and in all
conduct relevant hereto, was acting as the agent of the Cumberland County
Commissioners. The jurisdiction of the Maine Labor Relations Board ("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. The American Federation of State, County, and Municipal Employees,
AFL-CIO, Council 74 is the certified bargaining agent, as defined in 26
M.R.S.A. Section 962(2), for the Cumberland County Sheriff's Department
Employees Bargaining Unit.
2. The Cumberland County Commissioners are the public employer, within
the meaning of 26 M.R.S.A. Section 962(7), of the employees in the bargaining
unit mentioned in paragraph 1 hereof.
3. At all times and in all conduct relevant hereto, Annalee Z.
Rosenblatt was acting as the agent of the Cumberland County Commissioners.
4. The Cumberland County Sheriff's Department Employees Bargaining Unit
was certified on December 14, 1981 and consists of approximately 68 employees.
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Bargaining commenced on or about February, 1982, and proceeded through
mediation, in June of 1982, and, thereafter, an agreement between the parties
was reached.
5. The bargaining team for the Cumberland County Commissioners consisted
of the three Commissioners, Annalee Z. Rosenblatt, the Cumberland County
Sheriff, the Chief Deputy Sheriff, and the Jailer. Ms. Rosenblatt was the
only member of the team who attended all bargaining sessions.
6. On or about February 10, 1982, the Union and the Employer agreed to
adopt 6 ground rules for the negotiations.
7. The fourth ground rule provided: "Tentative agreements will be
reduced to writing and signed prior to the start of the next negotiating
session."
8. When the Union bargaining team agreed with an Employer proposal,
during the course of the negotiations, they would express their assent thereto
overtly. During bargaining, when the Union bargaining team disagreed with an
Employer proposal, they would express said disagreement or offer a counter-
proposal thereto.
9. On or about May 19, 1982, the Employer made the following offer to
the Union on the issue of vacations:
"The County shall grant vacation leave with pay to all full
time and regular part time employees as follows:
1. After one (1) year, continuous service 10 days
2. After seven (7) continuous years of service 15 days"
10. After receiving the Employer proposal mentioned in paragraph 9
hereof on or about May 19, 1983, the Union bargaining team met in a caucus and
offered the following counter-proposal:
"After 12 continuous years of service 20 days"
11. On or about May 28, 1982, the Employer made the following offer to
the Union on the subject of vacations:
"Over 15 years - 20 days"
12. No written tentative agreement on the subject of vacations was
prepared and none was requested by the Union.
13. During the course of bargaining, several written tentative agreements
were prepared and executed by the parties, in accord with the ground rule men-
tioned in paragraph 7 hereof.
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14. Mediation was requested in June of 1982 in order to resolve several
areas of disagreement.
15. Prior to the onset of mediation, the Employer prepared a document en-
titled "Last Proposals of the Parties," which purported to summarize the
remaining issues then in dispute.
16. The document, mentioned in paragraph 15 above, states the following
positions of the parties in connection with the issue of vacations:
"Union County
Article 11 - Vacations Article 11 - Vacations
Over 12 years 20 days Over 15 years 20 days"
17. At the first mediation session, on or about July 25, 1982, the
mediator met with the parties and assured himself that the only issues in
dispute were those contained in the document mentioned in paragraph 15, supra.
18. No agreements between the parties were reached at the first media-
tion session.
19. At the second mediation session, held on August 9, 1982, the
Employer was represented by Annalee Z. Rosenblatt, Samuel Hinds, and Brian
Morrison. The Union representatives included Glennis Cooper, a Union Field
Representative, and Rocco Minervino as President of the local association.
20. Going into the second mediation session, there existed, among others,
disagreements with respect to the Employer contribution for family coverage
under the Blue Cross/Blue Shield plan and the amount of vacation that
employees would receive who had over 12 years of accumulated seniority.
21. At the second mediation session, the mediator asked the Union to set
their demands, on the remaining issues, in order of priority. In response to
the mediator's request, the Union bargaining team stated that the family Blue
Cross/Blue Shield medical insurance coverage was more important to the local
Union membership than was the issue of vacations for unit employees with more
than 12 years of service.
22. At the second mediation session, the Union proposed that the
Employer assume 100% of the family Blue Cross/Blue Shield coverage and the
Employer counter-proposed that it pay $46-37 total Blue Cross/Blue Shield
payment for each person in the bargaining unit. The dollar amount offered by
the Employer was, at that time, the approximate amount that it was paying for
single Blue Cross/Blue Shield coverage for the unit employees only. An agree-
ment was reached whereby any unit employee who took out family coverage would
receive $20.00 per month toward the payment of the family coverage premium.
23. At the second mediation session, with respect to vacation pay, the
Union proposed that each employee who had more than 12 years of seniority
receive four
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weeks of paid vacation. The Employer adhered to its prior offer of four weeks
of paid vacation after 15 years of service. At the time of this mediation
session, 8 bargaining unit members had more than 12 years of service and I
bargaining unit member had 15 years or more of service. The Union agreed to
the Employer's proposal for 20 days of paid vacation after 15 years of service.
24. Both parties made concessions, during the mediation session of
August 9, 1982, and all issues between the parties were resolved at said
session.
25. Prior to the conclusion of the August 9, 1982 mediation session, the
chief negotiators for each of the parties jointly drafted a Memorandum of
Agreement which resolved all outstanding issues between the parties.
26. On the issue of vacations, the Memorandum of Agreement mentioned in
paragraph 25 hereof, states:
"Article 11 - Vacations
Per Last Proposals of the Parties used for mediation (County)"
27. After the Memorandum of Agreement mentioned in paragraph 25 above
was prepared, the same was signed by Glennis Cooper, on behalf of the Union,
Annalee Rosenblatt, on behalf of the Employer, and by the mediator.
28. At the close of the second mediation session, Glennis Cooper
informed Annalee Rosenblatt that the Union wanted to meet on August 19, 1982
for the purpose of conducting a vote of their membership on the ratification
of the collective bargaining agreement.
29. In response to Ms. Cooper's statement noted in paragraph 28 hereof,
Ms. Rosenblatt, who had prepared all of the written tentative agreements
during the course of the negotiations and who was to draft the collective
bargaining agreement, stated that she would be unable to deliver a draft of
the agreement to Ms. Cooper prior to August 19, 1982.
3O. On or about August 19, 1982, the local Union of the Cumberland
County Sheriff's Department Employees Bargaining Unit held a meeting for the
purpose of considering the negotiated collective bargaining agreement.
31. At the meeting, mentioned in the preceding paragraph, and based upon
the written tentative agreements, mentioned in paragraph 13 above, and upon
the Memorandum of Agreement, noted in paragraph 25 hereof; Glennis Cooper
outlined the
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substance of the collective bargaining agreement to the local Union's member-
ship. Ms. Cooper's understanding of the vacation provisions of the collective
bargaining agreement, which she explained to the local Union's membership, was
as follows:
10 days after 1 year of continuous service
15 days after 7 years of continuous service
20 days after 15 years of continuous service
32. At the meeting mentioned in paragraph 30 above and after Ms. Cooper
outlined thereat the provisions of the collective bargaining agreement, the
local Union membership voted to ratify said agreement.
33. Subsequent to the vote noted in the preceding paragraph, Glennis
Cooper, on behalf of the Union, notified the Commissioners that the Union had
ratified the agreement reached between the parties.
34. On or about August 20, 1982, Annalee Rosenblatt sent a draft copy of
the collective bargaining agreement to Glennis Cooper.
35. Subsequent to reviewing the draft collective bargaining agreement
noted in the preceding paragraph, Glennis Cooper notified Commissioner Samuel
Hinds that she believed that there were errors in the draft, including the 15
days' vacation eligibility after 10 years rather than after 7 years.
36. On or about August 23, 1982, the Employer granted the following paid
vacation benefits to non-bargaining unit employees:
After one (1) year of service 10 days
After seven (7) years of continuous service 15 days
After thirteen (13) years of continuous service 20 days
37. Subsequent to the conversation mentioned in paragraph 35 above,
Glennis Cooper, Rocco Minervino, and Annalee Rosenblatt met to discuss certain
errors in the draft collective bargaining agreement. During said meeting,
several typographical errors were corrected.
38. During the meeting noted in paragraph 37, the Union representatives
maintained that the draft agreement language providing for 15 days' vacation
after 10 years should read 15 days' vacation after 7 years of continuous
service. Ms. Rosenblatt stated that the Employer did not believe that it had
agreed to the Union's version of the vacations article and that it would not
ratify an agreement containing the Union's position.
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39. On or about September 10, 1982, the Employer provided the Union with
a draft of the collective bargaining agreement, which reflected the changes
noted in paragraph 37 above.
40. On or about September 13, 1982, the Cumberland County Commissioners
voted to ratify the draft collective bargaining agreement mentioned in the
preceding paragraph. The vote in favor of ratification was 2 votes in the
affirmative and one abstention. Commissioner Cooper, who abstained, stated
that the Union and the Commissioners had a difference of opinion on the issue
of vacations and that he felt that both the Union and the Employer should vote
on the same agreement.
41. On or about November 6, 1982, Thomas Wiley, a bargaining unit
employee and a member of the Union negotiating team, had a chance meeting with
Commissioner Hinds at the K-Mart store in Scarborough, Maine.
42. During the conversation mentioned in paragraph 41 hereof,
Commissioner Hinds stated that, unless the Union membership ratified and
executed the draft collective bargaining agreement within a short period of
time, the Commissioners would put in an estimated 5% increase in salaries, for
unit employees, in their proposed budget for the following year.
43. Under the budgetary process used by Cumberland County, the
Commissioners draft a proposed budget, the budget is discussed at a public
meeting which must be held before the end of November, and the budget is then
submitted to the County Legislative Delegation and to the Legislature as a
whole for approval. Non-bargaining unit employees had been granted wage
increases ranging from 4 to 6% for the following year.
44. The substance of the conversation, mentioned in paragraph 42 above,
was relayed by Mr. Wiley to other bargaining unit employees and to the Union
leadership.
45. On or about November 17, 1982, Charles W. Sherburne, the Executive
Director of Council 74, AFSCME, presided at a meeting of the Cumberland County
Sheriff's Department Employees Bargaining Unit local Union. At said meeting,
both the local Union membership and Mr. Sherburne were aware of the language
of the vacations article of the draft collective bargaining agreement,
mentioned in paragraph 39 hereof, and the local Union membership voted to
ratify the said agreement as drafted. Shortly thereafter, said agreement was
executed by both the Union and the Employer.
46. The collective bargaining agreement ratified by the parties provides
as follows:
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"Article 10 - VACATIONS
A. The County shall grant vacation leave with pay to all full
time and regular part-time employees as follows:
1. After one (1) continuous year of service 10 days
2. After ten (10) continuous years of service 15 days
3. After fifteen (15) years of continuous service 20 days"
47. At the outset of the negotiations between the parties, the Employer
intended to limit its increased labor costs, which would result from the pros-
pective collective bargaining agreement, to 7%. The Union bargaining team was
aware of this limitation throughout the negotiations. The actual labor cost
increase to the Employer, as a result of the executed collective bargaining
agreement was in excess of 8%.
48. Subsequent to execution of the collective bargaining agreement,
mentioned in paragraph 46 hereof, the Employer adjusted the wages of the
bargaining unit employees and granted all benefits to said employees, in
accordance with the terms of said collective bargaining agreement.
49. On or about October 12, 1982, the Employer voted to give all non-
union employees a holiday either the day before Thanksgiving, November 24,
1982, or the day after Thanksgiving, November 26, 1982.
50. On or about October 18, 1982, the Employer clarified its action of
October 12, 1982, outlined in the preceding paragraph, to allow "non-essential"
employees, i.e., those employees who did not need to be replaced, to have paid
leave for either the day before or the day after Thanksgiving.
51. Prior to 1982, the Employer had no consistent policy concerning a
paid holiday the day before or the day after Thanksgiving.
52. The day after Thanksgiving was proposed as a paid holiday by the
Union in its initial bargaining proposals presented to the Employer. Such
holiday does not appear in Article 11 - Holidays of the executed collective
bargaining agreement between the parties.
DECISION
Three major issues are presented in this case. The first issue is
whether, by executing the draft collective bargaining agreement which
contained a provision allegedly different from that negotiated, the Union is
estopped from raising
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any challenge to said inclusion. A related issue, if the answer to this first
issue is in the negative, is whether the Employer failed to bargain in good
faith by inserting a provision in the draft collective bargaining agreement
which was allegedly different from that bargained during negotiations. The
second major issue before us is whether, by granting an additional holiday to
non-unit employees, the Employer violated Section 964(1)(B) of the Act. The
third major issue is whether the Union violated Section 964(2)(B) of the Act
by refusing, for a period of time, to present the drafted collective
bargaining agreement in this case to the Union membership for a ratification
vote and, if the membership ratified said agreement, to execute the same.
In this case, the Union, prior to executing the draft collective
bargaining agreement, made its objections concerning the language of the
vacations article, contained in said draft agreement, known to the Employer.
The Union, nevertheless, proceeded to present the draft agreement, without
modification to the vacations article, to its local membership for a ratifica-
tion vote. The local Union membership voted to ratify the collective bargain-
ing agreement without modification. The evidence is clear that, at the time
of the second ratification vote, the local Union membership was aware that the
vacations article, in the draft agreement which they voted to ratify, read as
follows:
"Article 10 - Vacations
A. The County shall grant vacation leave with pay to all full time and
regular part time employees as follows:
1. After one (1) continuous year of service 10 days
2. After ten (10) continuous years of service 15 days
3. After fifteen (15) years of continuous service 20 days"
This article is clear and unambiguous and the evidence established that the
local Union membership understood its plain meaning at the time that they
considered the written draft collective bargaining for ratification. On or
about November 17, 1982, the local Union membership voted to ratify the draft
collective bargaining agreement, including the vacations article cited above.
Shortly thereafter, representatives of both the Union and the Employer
executed said collective bargaining agreement. Subsequent to the execution of
the collective bargaining agreement, the provisions thereof were implemented
by the Employer. The salaries of the bargaining unit employees and their
benefits have been adjusted according to the terms of the collective bargain-
ing agreement. Under the facts of this case, the Union's execution of the
collective bargaining agreement constitutes a representation that
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the Union was in accord with said agreement. Based upon said representation,
the Employer has implemented the provisions of the collective bargaining
agreement. The Union now challenges the accuracy of one of the sections of
collective bargaining agreement. The facts in this case present the classic
situation where the Union's complaint should be barred by application of the
doctrine of estoppel. Calamari & Perillo, The Law of Contracts Section 166
(1970). The Union, whose membership has enjoyed the benefits of the collec-
tive bargaining agreement, cannot now repudiate a provision of said agreement
and we so hold. Teamsters Local 48 v. Town of Oakland, MLRB Case No. 79-67
(Dec. 30 1979). We will, therefore, dismiss that part of the Union's
complaint which attempts to challenge the provisions of the executed
collective bargaining agreement.
The second significant issue in this case is whether, by granting an
additional holiday to non-unit employees, the Employer violated Section
964(1)(B) of the Act. This issue was considered and decided, under the
parallel provisions of the State Employees Labor Relations Act, 26 M.R.S.A.
Section 979 et seq., in Maine State Employees Association v. State of Maine,
MLRB NO. 81-06 (April 28, 1981). In that case, subsequent to negotiating a
collective bargaining agreement for bargaining unit employees, the public
employer granted some of the negotiated benefits and additional advantages to
non-unit employees. In that case we stated:
"The fact that some 'extra benefits'- a life insurance plan and
an income protection plan - were granted to the excluded employees
does not constitute unlawful interference with the unit employees'
Section 979-B rights. It is the State's prerogative to establish the
wages and benefits for the confidential and managerial employees.
This prerogative was properly exercised when State officials decided
to grant some of the negotiated items as well as the additional benefits.
The grant of the additional benefits cannot reasonably be construed as
a message to unit employees that the State was displeased with their
bargaining activities."
Maine State Employees Association v. State of Maine, supra, at 6-7. As is the
case with the excluded employees in the employ of the State of Maine, the
Cumberland County Commission has plenary and essentially unfettered discretion,
subject to budgetary approval by the Legislature, to grant or to deny employ-
ment benefits to its non-unit employees. As in the Maine State Employees
Association case above, we do not believe that the Employer's exercise of said
discretion, in the granting of an extra paid holiday to non-unit employees, is
violative of Section 965(1)(B) of the Act. We will, therefore, dismiss this
portion of the Union's complaint.
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We have reviewed the balance of the allegations, contained in the Union's
complaint, or as alleged by the Union during the course of the hearing hereon.
We hold that said allegations are without merit and, therefore, we will
dismiss the Union's complaint in this case.
The final issue presented is whether, by refusing for a period of time to
present the drafted collective bargaining agreement to the Union membership
for a ratification vote and, if the membership ratified said agreement, to
execute the same, the Union violated Section 964(2)(B) of the Act. Our review
of the facts in this case indicates that the parties never reached agreement,
on the accumulation of paid vacations for employees with less than 15 years of
continuous service, prior to execution of the written collective bargaining
agreement by the Employer and the Union. This holding is supported by both
the common law and the Restatement 2d of Contracts views of the law of offer
and acceptance and also by the course of dealing adopted by the parties during
negotiations. The common law view of offer and acceptance is that an offer is
rejected if the offeree makes a counter-offer thereto. Calamari & Perillo,
supra, at Section 32. This rule of law-has been adopted in the Restatement,
Contracts (2d), in sections 37 and 38. Ibid., at Section 33(d). According to
the unrefuted testimony of the Union's chief negotiator, these rules of law
are in accord with the parties' conduct at the bargaining table. The Union's
chief negotiator testified that, during the course of bargaining with the
Employer, when the Union negotiators agreed with an Employer proposal, they
expressed said agreement overtly. When the Union negotiators disagreed with
an Employer proposal, they would expressly reject the same or present a
counter-offer thereto. The critical bargaining session, where the issue of
vacations was discussed, was that of May 19, 1982. During that bargaining
session, the Employer made the following offer to the Union:
"The County shall grant vacation leave with pay to all full
time and regular part time employees as follows:
1. After one (1) year continuous service 10 days
2. After seven (7) continuous years of service 15 days"
The Union negotiators then caucused and presented a counter-proposal that
employees with 12 continuous years of service receive 20 days of paid vaca-
tion. Under the common law of contracts, the Restatement of Contracts 2d, and
the parties' course of dealing during bargaining, this counter-proposal
operated as a rejection of the Employer's offer. Furthermore, the parties'
negotiating ground rules provided that
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written tentative agreements were to be prepared and signed prior to the start
of the next negotiating session. Although several written tentative agree-
ments were executed by the parties in accord with the ground rules on other
subjects, none were to prepared and executed on the issue of vacations.
Furthermore, the Union never requested the preparation of such a tentative
agreement nor did the Union ever prepare such a tentative agreement on the
issue of vacations. There was, therefore, no agreement between the parties,
prior to mediation, on the issue of vacations. At mediation, the only rele-
vant bargaining concerned whether unit employees would receive 20 days of paid
vacation after 12 years of service, as proposed by the Union, or after 15
years, as proposed by the Employer. The Union agreed to the Employer's
position. Throughout the course of bargaining, therefore, there was no
agreement between the parties on vacation accumulation for unit employees with
less than 15 years of continuous service.
In Teamsters Local 48 v. Town of Oakland, supra, this Board addressed the
issue presented herein. At that time, we stated:
"A basic premise of a claim under 26 M.R.S.A. 965(1)(D) is
that there was an 'agreement arrived at' which the Town is refusing
to execute in writing. That premise is lacking.
In weighing the testimony and the credibility of the witnesses
we conclude that the parties each thought they had an agreement re-
garding dependent coverage but that in fact there was no meeting of
the minds on this point. Thus the Town cannot now be said to be in
violation of its duty to execute in writing the agreement which Local
48 claims but which the facts do not sustain."
Ibid., at 4. We have further clarified the above principle in a subsequent
case, Fox Island Teachers Association v. M.S.A.D. No. 8 Board of Directors,
MLRB No. 81-28 (April 22, 1981). In that case we held:
"While ordinarily there must be a meeting of minds on all issues
before a party is obligated by Section 965(1)(D) to sign a written
contract, when a misunderstanding is 'due to the fault of one party,
and the other party understands the transaction according to the
natural meaning of the words or other acts, both parties are bound
by that natural meaning.' Butchers' Union Local 120, 154 NLRB 16,
26 (1965). Here the misunderstanding is due entirely to the fault
of the Directors' negotiators. Since the 'natural meaning' of the
tentative agreement on the salary scale was that the Association's
13-step proposal was agreed to, we have no difficulty concluding that
the Directors' negotiators are bound, even though there was no meeting
of minds, by the 13-steps salary scale agreement. Were the Directors'
negotiators vested with authority to reach a final agreement on the
salary scale issue, we would hold that the Directors were bound by the
July 2nd agreement and would order the Directors to sign the typewritten
contract."
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Ibid., at 5-6. We believe that the Oakland case is analogous to that pre-
sented herein and we find the Fox Island case distinguishable from the facts
now before us. In this case, both parties believed that an agreement on the
issue of vacations existed for employees with less than 12 or 15 years of
service prior to mediation. We reach this conclusion from the fact that
neither party raised said issue before the mediator. In fact, however, no
such agreement existed, prior to the execution of the collective bargaining
agreement. The Union, therefore, did not violate Section 964(2)(B), incorpor-
ating the provisions of Section 965(1)(D), when it failed and refused, for a
period of time, to execute the draft collective bargaining agreement.
The Board is somewhat disappointed in the conduct of the Employer's chief
negotiator, an experienced professional labor negotiator, in this case. This
is the second case, before this Board within the last year, where this
negotiator's professional conduct has been challenged. The prior case was
Sanford Firefighters Association, Inc. v. Town of Sanford, MLRB No. 83-07.
(Dec. 3, 1982). In Sanford, the Board held that the "disagreement result[ed]
from an honest misunderstanding which resulted from a mutual break-down in
communications." Ibid., at 5. In the case at hand, the negotiator testified
that no Union negotiator had agreed to the Employer's vacation proposal for
unit employees with less than 15 years of service and that the Employer had
not acceded to the Union's proposals thereon. Nevertheless, in drafting the
final collective bargaining agreement, the negotiator inserted therein the
Employer's position on the issue of vacations for employees with less than 15
years of service. This conduct falls somewhat below the standard which this
Board expects of professional labor relations consultants practicing in this
State and the standards which this individual has constantly followed in the
past several years. Our holding that the Union is estopped from challenging
the content of the executed collective bargaining agreement is not meant nor
should it be construed to be a condonation of said negotiator's conduct in
this case.
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:
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That the complaint brought by the American Federation of
State, County, and Municipal Employees, AFL-CIO, Council
74, and the counterclaim brought by the Cumberland County
Commissioners and Annalee Rosenblatt be and hereby are
dismissed.
Dated in Augusta, Maine, this 30th day of June, 1983.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
Donald W. Webber, Alternate Chairman
/s/_______________________________________
Don R. Ziegenbein, Employer Representative
/s/_______________________________________
Harold S. Noddin, Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. Section
968(5)(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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