STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 92-03
Issued: April 6, 1992
________________________________________
)
SELECTMEN OF THE TOWN OF SANFORD, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
COUNCIL 93, AFSCME, AFL-CIO, LOCAL 481, )
SANFORD PUBLIC WORKS BARGAINING UNIT, )
)
Respondent. )
________________________________________)
On August 29, 1991, the Selectmen of the Town of Sanford (Town) filed
a prohibited practice complaint with the Maine Labor Relations Board
(Board) alleging that Council 93, AFSCME, AFL-CIO, Local 481, Sanford
Public Works Bargaining Unit (AFSCME) has refused to bargain in good faith
as required by 26 M.R.S.A. 965(1)(C) and (D) (1988) in violation of
26 M.R.S.A. 964(2)(B) (1988), by rejecting a mutually ratified contract,
agreed upon by the collective bargaining representatives of the parties,
and by insisting upon the resumption of contract negotiations seventeen days
after the communication of the Union's favorable contract ratification vote.
In its Answer, received by the Board on October 17, 1991, and sub-
sequently amended, AFSCME denies that its actions violate the Maine
Municipal Public Employees Labor Relations Law (MPELRL). AFSCME's repu-
diation of the contract, based on a second unsuccessful ratification vote,
is advanced by AFSCME as permissible based upon two underlying assertions.
The first of these is that the initial ratification vote was void because,
contrary to the parties' ground rules and union policy, the employees did
not have a complete written contract to review prior to their initial rati-
fication vote. The second assertion is that the initial vote was void
because four employees were not notified and did not attend the initial
ratification meeting. AFSCME also avers that it should not be found in
violation of the refusal to bargain proscriptions contained in the
MPELRL, because the Town waived its right to complain of any such violation
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when the Town engaged in further collective bargaining negotiations in
response to a ten-day notice submitted to the Town by AFSCME.
On November 8, 1991, Alternate Chair James D. Libby conducted a pre-
hearing conference. The November 17, 1991, Prehearing Conference Memorandum
and Order issued by Alternate Chair Libby is incorporated in and made a
part of this order. On November 21, 1991, the Board's Counsel met with the
parties for the purpose of reaching a stipulated factual record upon which
to resolve the issues in controversy. Additional stipulations concerning
the terms of the agreements, which were submitted to and ratified by both
AFSCME and the selectmen, respectively, were received on March 2 and
April 3, 1992. The Town is represented in this matter by Attorney Patricia
M. McDonough. AFSCME is represented by AFSCME Staff Representative Richard
V. Taylor. On January 24, 1992, the Board, consisting of Chair Peter T.
Dawson, Employer Representative Howard Reiche, Jr., and Employee Repre-
sentative George W. Lambertson, deliberated the case, taking into con-
sideration the parties' stipulations, admissions, and simultaneous initial
and reply briefs, the last of which was received on January 10, 1992.
JURISDICTION
The Board has jurisdiction to hear evidence and determine the issues
in this case and to render a decision and order pursuant to 26 M.R.S.A.
968(5)(A) (1988). The Respondent Town is a public employer within the
meaning of 26 M.R.S.A. 962(7) (Supp. 1991). AFSCME is a bargaining agent
within the meaning of 26 M.R.S.A. 962(2) (1988).
FINDINGS OF FACT
Based upon the parties' stipulations and exhibits, we make the
following findings:
1. The Selectmen of the Town of Sanford (Town), having its place of
business at 267 Main Street, Sanford, Maine 04073, is a public employer within
the meaning of the Municipal Public Employees Labor Relations Law (MPELRL).
2. Council 93, American Federation of State, County and Municipal
Employees, AFL-CIO, Local 481 (AFSCME) is a public employee organization
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within the meaning of the MPELRL.
3. AFSCME is the sole and exclusive bargaining agent for the entire
group of permanent employees in the bureau of highways and sanitation
(Unit) excluding certain clerical and supervisory employees. There are
approximately 33 employees in the bargaining unit.
4. AFSCME and the Town were parties to a Collective Bargaining
Agreement (Agreement) which expired December 31, 1990.
5. Richard V. Taylor is the field representative assigned to the Unit
and has been at all times relevant herein the Chief Negotiator for AFSCME.
6. Roy Moses, Donald Cabana, Larry Davis, Larry Stone and Dean Waterhouse
have been at all times relevant herein members of the bargaining team.
7. The Town's fiscal year ended June 30, 1991.
8. The parties began negotiations on August 24, 1990, and held nine
bargaining sessions, including four mediation sessions. The last mediation
session occurred on January 16, 1991.
9. On or about March 13, 1991, a mutual request for fact finding was
made to the Maine Labor Relations Board.
10. By letter dated May 6, 1991, a fact-finding panel was assigned and
the date for fact finding set for June 5, 1991.
11. On or about May 3, 1991, AFSCME's negotiator made a proposed
contract settlement offer to the Town's negotiator.
12. On or about May 6, 1991, that offer was communicated by the
Town's negotiator in written form to the Town.
13. On or about May 15, 1991, the Town's negotiator made a counter
offer to AFSCME's negotiator by telephone.
14. AFSCME's negotiator agreed to take the offer to the membership
of the Unit for a vote.
15. On May 28, 1991, at a special Selectmen meeting, the proposed
contract between the parties was ratified by the Selectmen. This informa-
tion was published in the newspaper. The Maine Labor Relations Board was
notified and asked to continue the date for the fact finding pending rati-
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fication of the contract.
16. On or about June 3, 1991, AFSCME's negotiator called the Town's
negotiator to review the terms of the proposed agreement prior to a planned
Union1 meeting on the evening of June 3, 1991.
17. The Union met on or about the evening of June 3, 1991, to review
the terms of the proposed agreement. The Union meeting on June 3, 1991, was
held after work and before 6 p.m. Richard V. Taylor was in attendance at
this meeting and explained the terms of the contract settlement. Taylor
possessed four signed tentative agreements at the time of said meeting.
Additional proposals were verbal from the Town negotiator to the AFSCME
negotiator, and AFSCME representative Taylor presented the additional pro-
posals verbally to the Union membership. At the close of the June 3, 1991,
Union meeting, the membership in attendance made a decision not to vote on
the contract at that time but to postpone the vote until June 4, 1991, so
the membership could "sleep on it."
18. The Union met again on or about the morning of June 4, 1991, and
ratified the proposed agreement by a margin of approximately seventeen to
six. The Union meeting on June 4, 1991, was held at about 6 a.m. or thirty
minutes prior to the start of the work day. No AFSCME Council 93 official
was in attendance at the June 4, 1991, ratification vote.
19. On or about the afternoon of June 4, 1991, AFSCME's negotiator
notified the Town's negotiator that the contract had been ratified.
20. Subsequently, the Town's negotiator informed both AFSCME's nego-
tiator and the Town Administrator of a potential problem concerning four
employees who allegedly were not notified of the ratification meeting and
did not attend it. Further, the Town was informed that this was not a
problem as the four votes would not make a difference with regard to the
outcome of the favorable vote.
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1The parties' stipulations seem to refer to the bargaining "Unit" and
the "Union" interchangeably. No issue has been raised respecting sub-
mission of the agreement for ratification to the Union's membership rather
than to the Unit's membership. Moreover, there is no evidence of the com-
parative memberships.
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21. At the third Union meeting held on or about June 21, 1991, Charles
Sherburne, Area Coordinator for AFSCME Council 93 and the President of
Local 481, was in attendance, along with Richard V. Taylor. Sherburne led
this meeting and permitted another vote on the proposed contract by a
"division of the house". The membership did not have a proposed written
contract draft for any of the meetings referenced in the Complaint. The
proposed contract was rejected at this third meeting2. By letter dated
June 21, 1991, AFSCME's negotiator informed the Town that the Union had met
again and held a new vote on the proposed agreement. The same letter was
also a ten-day notice to meet.
22. The parties met for the purposes of continued negotiations on
July 9,1991.
23. AFSCME informed the Town that the reasons for the second ratifica-
tion vote on the contract were: (a) the vote was held in violation of the
Union's international constitution in that the proposed settlement was not
presented to the membership in writing; and that (b) four park department
employees were not notified of the meeting along with employees who were on
vacation, specifically, Donald Cabana.
24. No one from the Union requested any written tentative agreement or
draft prior to any of the Union ratification votes. At least for the past
ten years, no written contract draft was prepared until after the Union had
ratified the terms of the new agreement.
25. As a result of this final negative contract ratification vote, the
Union proposed to either extend the contract for a year or proceed to fact
finding.
26. The parties renewed their request for fact finding and a fact-
finding hearing was subsequently held.
27. The Town's share of the costs of fact finding was $911.23.
28. The following constitutes the terms of the collective bargaining
___________________________________
2There is no indication of the margin by which the second vote failed
to pass.
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agreement negotiated and ratified by the parties:
CURRENT AGREEMENT
Except as specifically modified below, the terms of the
current contract will remain in effect.
ARTICLE 3 - WORK TIME
A. Work Week
2. Sanitation Division
a. Rubbish collection employees shall have a work week
consisting of four (4) consecutive ten (10) hour days, Monday
through Thursday. The Rubbish Crew will work on the incentive
program and may stop work at the completion of their work, which
shall be no less than eight (8) hours per work day. The work
performed on the routes must be within acceptable standards of
safety, use of equipment and due regard to the people of Sanford.
ARTICLE 4 - VACATIONS
A. Vacation is as follows:
1. For each year of employment through the completion of six
(6) continuous years of service employees shall earn two (2)
weeks of vacation to be used in the following anniversary year.
2. For each year of employment between the beginning of
seven (7) years of continuous service and the completion of four-
teen (14) years of continuous service employees shall earn three
(3) weeks of vacation to be used in the following anniversary year.
3. For each year of employment between the beginning of
fifteen (15) years of continuous service employees shall earn
four (4) weeks of vacation to be used in the following anniver-
sary year.
4. No vacation may be taken until it has been earned. An
employee must work a full year before taking any vacation, i.e.
during the second anniversary year of employment, vacation earned
during the first year of employment may be used; during the third
year of employment, vacation earned during the second year of
employment may be used, and so on during the term of employment.
5. If a holiday falls within an employee's scheduled vaca-
tion, it is counted as a holiday instead of a vacation day.
(Note: The pro-ration schedule for the accruing and taking of
vacation for less than one year of service has been deleted from
the contract. The langauge [sic] in 1-3 above has been rewritten
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and not not [sic] changed as to meaning except as underlined.
The rewrite was for the purpose of eliminating any vacation eli-
gibility until after 1 complete year of service and changing the
vacation accrul [sic] system to anniversary date of employment.)
ARTICLE 5 - HOLIDAYS
B. 2. If a holiday falls within an employee's scheduled vaca-
tion, it is counted as a holiday instead of a vacation day. The
employee shall have the right to select the time to take his/her
adjusted vacation day off during the year, the date to be
mutually agreed to between the employee and the Town.
(Note: This section was rewritten for clarity and not changed as
to meaning from current contract.)
ARTICLE 6 - LEAVES OF ABSENCE
A. Sick Leave
4. Employees shall call in sick at least thirty (30) minutes
before the beginning of the work shift in order to receive sick
pay unless extenuating circumstances are present. Doctor's cer-
tification may be required for sick leave of three (3) days dura-
tion or more except that the Employer may request a doctor's
certification any time there is suspected abuse of sick leave.
If a doctor's certificate is required for personal or family sick
leave usage, the certificate must be furnished to the Town within
five (5) working days of the last date of sick leave usage. No
doctor's certification will be required for sick leave absence of
one (1) days duration (personal or family) provided there is no
recurrent sick leave absence within thirty (30) calendar days
thereafter. Failure to notify the Director of the Bureau of
Highways and Sanitation, foreman, or clerks of department, of
illness will mean loss of sick leave.
C. Bereavement Leave
1. In the event of death in the family of the employee's
current spouse or children, the employee shall, upon request, be
granted up to five (5) calendar days leave of absence with pay
including the day of the funeral. No pay shall be granted for
days an employee is not scheduled to work. In the event of death
of parents, current father-in-law, current mother-in-law,
brother, sister, grandparents and grandchildren, the employee
shall upon request be granted up to three (3) calendar days leave
of absence with pay including the day of the funeral. No pay
shall be granted for days an employee is not scheduled to work.
ARTICLE 9 - POSTING
Bargaining unit job openings for regular positions shall be
posted on the bulletin board of the divisions of the public works
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department for a period of four (4) business days. Business days
shall be days when the Town Administrator's office is open. At
the time of the posting, copies of said posting will be forwarded
to the Department. At the end of this period, if the job has not
been filled, it may be filled at the discretion of the Town
Administrator or his/her designee.
(Note: Changed 7 days to the 4, deleted posting on the Town
Bulletin Board and deleted sending such posting to the Union
President.)
ARTICLE 22 - DISTRIBUTION OF OVERTIME
D. The method of equalizing overtime shall be distributed by
divisions (highway, park, sanitation, mechanics, airport).
Equalization shall take place in intervals of six (6) months
(November-March and April-October). The overtime which cannot be
filled within any one division will be distributed to the other
four divisions by an equalization method to be posted as
described above.
WAGES
Base rate remains the same for the term of the contract.
On the last payroll date in June, all employees on the
payroll shall receive a one time bonus equal to 3% mutiplied by
their base rate by 1040 hours or the number of actual hours they
were employed if they began work after January 1, 1991. Employees
who are not on the payroll when this bonus is paid, is [sic] not
eligible to receive such payment.
TERM OF CONTRACT
Effective January 1, 1991 and expiring June 30, 1992.
29. The Town did not submit to negotiations or fact finding under
an expression of protest and no warning was given by the Town that it might
seek to recoup its costs in either such regard by way of prohibited practice
complaint proceedings.
30. Nothing in AFSCME's submitted excerpts from the AFSCME International
Constitution, the AFSCME Council 93 Constitution, or the Constitution of
the Southern Maine Area Public Employees Local Number 481, AFSCME, AFL-CIO,
requires a written agreement as a prerequisite to the holding of an effec-
tive ratification vote.
31. The Local 481 Constitution states that "[t]he members of a unit
shall vote and pass on all matters and terms of union contracts and agree-
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ments affecting them, or entered into or nogotiated [sic] on their behalf."
32. The AFSCME International Constitution states, inter alia, that:
Members shall have the right to full participation, through
discussion and vote, in the decision-making processes of the
union, and to pertinent information needed for the exercise of
this right. This right shall specifically include decisions con-
cerning the acceptance or rejection of collective bargaining
contracts, memoranda of understanding, or any other agreements
affecting their wages, hours, or other terms and conditions of
employment. All members shall have an equal right to vote and
each vote case shall be of equal weight.
POSITIONS OF THE PARTIES
The Town contends that a contract exists, the repudiation of which by
AFSCME constitutes an unlawful refusal to bargain prohibited by the MPELRL.
AFSCME asserts as affirmative defenses: that the Town waived its
right to claim a violation by engaging in continued negotiations; that the
Town "cannot interfere with the internal politics of AFSCME"; that AFSCME's
"only written communication regarding the outcome of any vote was a notice
to the Town that the proposal presented was rejected by the membership.
The reason[s] for the rejection [were lack of] compliance with Union policy
requiring a written proposal for a ratification vote and [the assertion
that the procedure was] in violation of signed ground rules also requiring
all tentative agreements to be in writing."
DISCUSSION
This case is not one in which avoidance of a collectively bargained
agreement is being sought by one party on the basis of disagreement over
what constitutes the agreed-upon terms. Additionally, there is no allega-
tion or evidence in this case of failure of either party to satisfy specif-
ically reserved preconditions to conclusion of a binding agreement.
Furthermore, no mention of a right to a second ratification vote by unit
members was advanced by AFSCME prior to notification to the Town that the
agreement had failed to pass the second vote. Compare General Teamsters
Chauffeurs and Helpers, Local 249 and V & M Manufacturing, 168 NLRB 389
(1967), with, Downey Unified School District and Los Angeles City and
County School Employees Union, Local 99, 4 PERC 11161, 2 NPER 05-11161
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(Calif. Public Employee Relations Board Sept. 10, 1980).
There is no Maine State statutory analogue to the federal Landrum-
Griffin Labor Management Reporting and Disclosure Act, P.L. 86-257, approved
Sept. 14, 1959, 73 Stat. 519; last amended by P.L. 100-182, effective
Dec. 7, 1987, 29 U.S.C.A. 401-531 (1985), which establishes specific
requirements for private sector internal union elections. There is also no
indication of union conduct in the facts of this case so egregious as to
compel us to conclude that no contract ought to exist.3 If the parties
desired to require that only a written draft would be sufficient for sub-
mission to their principals for ratification they might have incorporated
such a requirement in their ground rules, as the parties did in Teamsters
Local Union No. 48 v. City of Westbrook, No. 89-05, 11 NPER ME-20001
(Me.L.R.B. Oct. 25, 1988). They did not do so here. Moreover, although
the parties' ground rules do require tentative agreements to "be reduced to
writing and signed by the designated agents as they are reached," AFSCME
did not assert noncompliance with the ground rules at any time prior to the
conclusion of an agreement, or before submission of that agreement to its
membership for ratification.
We have been pointed to no case suggesting a plausible rationale for
holding, in facts similar to those in the present case, that one party
should be allowed to avoid a contract ratified by both parties through a
second unfavorable ratification vote. Even though there is no demonstrated
detrimental reliance or actual implementation in the instant case we are
compelled to find, as did the Wisconsin Employment Relations Commission,
in Beloit City Employees Local 643, AFSCME AFL-CIO and City of Beloit,
No. 17033-A, slip op. at 5, 1 NPER 51-10075 (Wisconsin Employment Relations
Commission Aug. 1, 1979), that:
To conclude in the instant context that the Union, even when
acting upon a good faith belief that its ratification process was
flawed, could successfully reverse its ratification decision
___________________________________
3Although AFSCME alleges that its submission of the contract for ratif-
ication without previously supplying a written contract to voters violated
its bylaws and constitution, the documents submitted to establish such
violation were not probative.
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would create an awesome and unacceptable potential for uncer-
tainty and chicanery within the collective bargaining process[,]
which would fly in the face of the goal of peaceful and harmonious
bargaining relationships which the [MPELRL] attempts to encourage.
We conclude that lack of submission of a written draft to unit members
prior to attempted ratification, as well as the conduct of a ratification
vote at a meeting less than unanimously attended are, in the facts of this
case, matters within the exclusive control of AFSCME and matters solely of
internal union affair. Accordingly, we will not sanction AFSCME's attempt
to avoid a contract, reached through apparently arms-length dealings with
the Town, on the basis of its own conduct.
We decline to award attorney's fees or other costs in this case.
Although we have failed to find, as requested by AFSCME, that the Town's
participation in further collective bargaining and fact finding constituted
a waiver of the Town's right to allege that AFSCME has refused to bargain,
we do find that the Town's failure to notify AFSCME that its further nego-
tiations were undertaken only under conditions of protest constitutes a
waiver of the right to request attorney's fees and costs. Our finding in
this regard is meant to balance our desire on the one hand that in nego-
tiations parties not become too quickly recalcitrant and resort to the
board with our competing desire, on the other hand, that parties not engage
in the gamesmanship of participating in further negotiations without an
apprisal that should further attempted negotiations prove unsatisfactory,
resort to the board will likely occur.
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) (1988 & Supp. 1991), it is
hereby ORDERED:
1. That Council 93, AFSCME, AFL-CIO, Local 481, Sanford Public
Works Bargaining Unit (AFSCME), shall cease and desist from
refusing to bargain, in violation of 26 M.R.S.A. 964(2)(B)
(1988) by failing to reduce to writing and sign a duly
ratified collectively bargained agreement.
2. That AFSCME shall cease and desist from refusing to bargain,
in violation of 26 M.R.S.A. 964(2)(B) (1988) by demanding
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continued negotiations and fact finding over mandatory subjects
contained in an effective collectively-bargained agreement.
3. That AFSCME shall post for sixty (60) days in conspicuous
places where notices to Sanford Public Works Bargaining Unit
employees are customarily posted, and at times when such
employees customarily perform work at those places, copies of
the attached notice to employees which states that AFSCME
will cease and desist from the actions set forth in
paragraphs one and two and will take the affirmative action
set forth in paragraphs three and four. Copies of the notice
shall be signed by a duly authorized representative of AFSCME
prior to posting and shall be posted by AFSCME immediately
upon receipt.4 AFSCME shall take reasonable steps to ensure
that the notices are not altered, defaced, or covered by
other materials.
4. That AFSCME shall notify the Board by affidavit or other proof
of the date of posting and of final compliance with this order.
Dated at Augusta, Maine, this 6th day of April, 1992.
MAINE LABOR RELATIONS BOARD
The parties are advised
of their right pursuant /s/________________________________
to 26 M.R.S.A. 968(5)(F) Peter T. Dawson
(Supp. 1991) to seek review Chair
of this decision and order
by the Superior Court by
filing a complaint, in
accordance with Rule 80C /s/________________________________
of the Maine Rules of Civil Howard Reiche, Jr.
Procedure,.within 15 days Employer Representative
of the date of the issuance
of this decision.
/s/________________________________
George W. Lambertson
Employee Representative
___________________________________
4In the event that the Board's Decision and Order is appealed and is
affirmed by the Maine Superior Court, the words in the Notice "Posted by
Order of the Maine Labor Relations Board" shall be altered to read "Posted
by Order of the Maine Labor Relations Board, affirmed by the Maine Superior
Court."
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NOTICE TO
EMPLOYEES
__________________________________
POSTED PURSUANT TO AN ORDER OF THE
MAINE LABOR RELATIONS BOARD
AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO PRESENT EVIDENCE,
IT HAS BEEN DETERMINED THAT WE HAVE VIOLATED THE LAW AND WE HAVE BEEN
ORDERED TO POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE
LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING:
WE WILL cease and desist from refusing to bargain, in violation
of 26 M.R.S.A. 964(2)(B) (1988), by failing to reduce to
writing and sign a duly ratified collectively-bargained
agreement.
WE WILL cease and desist from refusing to bargain, in violation
of 26 M.R.S.A. 964(2)(B) (1988), by demanding continued nego-
tiations and fact finding over mandatory subjects contained in an
effective collectively-bargained agreement.
_____________________ ___________________________________________
Date AFSCME Representative
This notice must remain posted for 60 consecutive days from the date of
posting. Any questions concerning this notice or compliance with its pro-
visions may be directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015
______________________________________________________________________
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.
______________________________________________________________________