STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-25
Issued: June 3, 1993
_______________________________________
)
TEAMSTERS UNION LOCAL NO. 340, )
)
Complainant, )
)
v. ) DECISION AND ORDER
) (DEFAULT)
CITY OF BIDDEFORD, )
)
Respondent. )
_______________________________________)
On February 26, 1993, Teamsters Union Local No. 340
("Teamsters") filed a prohibited practice complaint with the
Maine Labor Relations Board ("Board") alleging that the City of
Biddeford ("City") violated section 964(1)(A) and (E) of the
Municipal Public Employees Labor Relations Law ("MPELRL"),
26 M.R.S.A. 964(1)(E) (1988), by attempting to coerce the
Teamsters into accepting an insurance proposal that had not been
raised during contract negotiations, and by refusing to partici-
pate in a scheduled mediation session after having requested
mediation. The executive director reviewed the complaint for
sufficiency pursuant to section 968(5)(B) of the MPELRL and Board
Rule 4.06(A). By letter he then notified the Teamsters of the
need for a more definite statement of facts in connection with
the first allegation. He also notified the City that the com-
plaint and been filed, and informed it of when the City's answer
was due to be served upon the Teamsters and filed with the Board.
On March 11, 1993 (by letter dated March 9th), the Teamsters
filed an amended complaint with the Board, which complaint
contained a more specific recitation of facts in connection with
its allegations. By letter dated March 12, 1993, the executive
director notified the City of the filing of the amendment, and
also informed the City of the deadline for filing its response.
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On March 24, 1993, the City hand-delivered two handwritten
responses to the Board's offices. On March 26th, typed versions
of the two responses were received by the Board. On that date
the Board also received, via FAX, a motion by the City for an
extension of time to file. On March 29th, the Board received, by
mail, the hard copy of the City's motion. The Teamsters filed a
request for a default judgment on March 31st, and an evidentiary
hearing was held on May 11, 1993, to consider the two motions.
Chair Peter T. Dawson presided over the hearing, accompanied
by Employer Representative Howard Reiche, Jr., and Employee
Representative George W. Lambertson. Mr. Carl Guignard repre-
sented the Teamsters, and Harry Center, Esquire, represented the
City. The parties were given full opportunity to introduce
documentary evidence and make oral argument on their motions. At
the close of the presentation of evidence and argument, the Board
met to deliberate the matter, and thereafter announced its
decision (extension of time denied, default granted, Chair Dawson
dissenting1). The Board then gave the parties the opportunity to
make oral argument on the issue of remedy, and informed them that
a written decision would be forthcoming.
On May 14, 1993, the Board received Respondent's Request for
Summary Dismissal. The City asked that the Board dismiss the
Teamsters' complaint, as amended, on the grounds that it failed
to state a prima facie violation of the MPELRL, and that ratifi-
cation of a new contract has made the allegations moot in any
case. The Teamsters filed a response to the City's request on
May 19th and a corrected copy of the response on May 20, 1993.
JURISDICTION
The Teamsters are the bargaining agent, within the meaning
_________________________
1Upon further consideration, Chair Dawson has decided to
join the majority opinion.
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of 26 M.R.S.A. 962(2) (1988), for seven bargaining units of
employees employed by the City of Biddeford.2 The City is the
public employer, within the meaning of 26 M.R.S.A. 962(7)
(Supp. 1992), of the employees in those units. The jurisdiction
of the Board to hear this case and to render a decision and order
lies in 26 M.R.S.A. 968(5) (1988 and Supp. 1992).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. On Friday, February 26, 1993, the Teamsters' complaint
against the City was filed with the Board. On Monday, March 1,
1993, the executive director sent a letter of insufficiency to
the Teamsters regarding the need for a more definite statement in
connection with the first allegation in the complaint, and a
notification letter to the City. The letter to the City stated
that the City's response to the complaint "is due to be filed
with this agency and served upon the complainant on or before
March 19, 1993. Failure to file a timely response may result in
a default judgment against you."
2. By letter dated March 9, 1993, the Teamsters sent an
amendment to its complaint to the Board and to the City. The
Board received the amendment on March 11th. On March 12th, the
executive director sent the City a second notification letter,
informing it that the amendment to the complaint had been filed.
The letter further stated:
_________________________
2There are five units in the Biddeford Police Department,
covered by a single contract, that are represented by the
Teamsters: the dispatchers/secretaries' unit, the patrolmen's
unit, the detectives' unit, the sergeants and corporals's unit,
and the captains' unit. The Teamsters represent two units in the
Public Works Department: a unit of supervisory employees and a
unit of non-supervisory employees.
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Responses to amended complaints must be filed with the Board
pursuant to the operations of Board Rules 4.05, 4.06, 7.02
and 7.03, on the later of either:
1) the deadline for the filing of the original answer,
or
2) within ten calendar days of service of the amended
complaint (thirteen calendar days from the date of
mailing of an amended complaint served by mail).
The Teamsters served the amended complaint on the City by mail,
by letter dated March 9, 1993. Accordingly, the response was due
thirteen days later, on or before Monday, March 22, 1993.
3. Two clericals work under the supervision of Mr. Carr,
the Human Resources Manager for the City. One is a regular,
full-time employee of the City, whose husband is an employee in
the Biddeford Police Department and a member of the Teamsters.
At her own request, she is not asked to type any documents
related to collective bargaining for that department, during
periods of time that negotiations are taking place. (She has
typed collective bargaining agreements themselves.) The other
clerical is paid by the American Association of Retired Persons
to work for the City for four hours per day. She did not work
Tuesday through Friday, March 16th through March 19th, due to
illness. On Monday, March 22nd, she did not work because she was
in Augusta taking a State exam.
4. On Monday, March 22nd, Mr. Carr called his office and
found out that his secretary had not returned to work. On Wed-
nesday, March 24th, he called the Board's offices and spoke to
the executive director to find out when the response to the com-
plaint was due; the executive director informed Mr. Carr that he
should get his response to the complaint filed immediately.
Since he had his handwritten responses with him in Augusta, on
that same day Mr. Carr personally delivered two handwritten, un-
signed responses, one to the original complaint and one to the
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amendment.3 On the first page of the response to the original
complaint appeared the date "March 22, 1993" in ink different
than the ink used to write the body of the response.
5. On Thursday, March 25th, in response to a telephone
request from Carl Guignard, Roger Putnam of the Board's staff
mailed copies of the handwritten responses to the Teamsters.
[The parties have stipulated that the Teamsters received the
handwritten responses from the Board and not from the City.]
6. On Friday, March 26, 1993, the Board received typed
versions of the City's responses, by Federal Express. (The
Federal Express receipt indicates that they were mailed on
Thursday, March 25th.) Both responses were signed by Mr. Carr,
and both originally contained a date of March 24, 1993. On each,
the second digit of the date ("4") had been whited out, and a "2"
had been typed in.4 Both Mr. Carr and the secretary who typed
the responses denied having changed the date on the two documents
after they were typed. The Teamsters received their copies of
the typewritten responses from the City on Monday, March 29th.
No Rule 4.05 proof of service has been filed by the City.
7. On March 26th the Board also received, via FAX, a motion
"to extend the City of Biddeford response." Two reasons were
given for the request: first, "a misunderstanding that once the
original was amended it was interpreted that the amendment
delayed the response time by thirteen days from the date of the
_________________________
3In testimony, Mr. Carr could not recall whether he called
on March 22nd, 23rd or 24th. He did state he delivered the hand-
written responses on the same day he called. The Board's files
show that the responses were delivered on Wednesday, March 24th.
4On the original documents filed with the Board, the date of
March 24 is clearly visible from the reverse side of the page.
The type style of the new number "2" is different from the type
style of the remainder of the date.
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amendment to both the original and the amendment"; and second,
that Mr. Carr's secretary had been absent due to illness since
March 15th. On March 29th, the Board received, by mail, the hard
copy of the City's motion. On March 31, 1993, the Board received
a motion for a default judgment from the Teamsters, based on the
failure of the City to file a timely response.
8. There are approximately 20 employees in the City's
clerical bargaining unit, most of whom work at city hall. Mr.
Carr could have assigned another clerical employee to type the
responses. It took Mr. Carr's secretary 45 minutes to an hour to
type and proofread them. Mr. Carr was in Augusta on March 16th,
17th, 18th and 19th.
DISCUSSION
In past years, the Board did not make it a practice to
notify respondents of the requirement in Rule 4.05 to file a
response to a complaint.5 That is no longer the case. Respon-
dents are notified not only that a response is required, but when
the response is due. Consequently, the Board does not take the
failure to file a timely response lightly.
After receiving the Teamsters' amendment to its complaint,
the Board notified the City that its response was due on the
later of either 1) the deadline for filing of the original
response ( i.e., March 19th)6 or "within ten calendar days of
service of the amended complaint (thirteen calendar days from the
date of mailing of an amended complaint served by mail)." Since
_________________________
5In Kittery Teachers Association v. Kittery School
Committee, No. 75-21 (Me.L.R.B. June 26, 1975), a motion for
default was denied where the respondent was unaware of the
requirement to file a response.
6The City was notified, by letter dated March 1, 1993, that
its response to the original complaint was due to be served on
the Teamsters and filed with the Board on or before March 19th.
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the cover letter accompanying the amendment shows that it was
mailed on March 9, 1993, the City's response was due thirteen
days thereafter, on March 22nd. The City delivered two hand-
written responses to the Board on Wednesday, March 24th, after
calling the Board's offices regarding the due date and being told
that the response should be filed immediately. Even ignoring the
fact that those hand-written responses were never served on the
Teamsters, as required by the Board's rules,7 they were filed two
days late. The typed versions, which the City did eventually
serve on the Teamsters (though no proof of service was ever
provided to the Board by the City), were filed four days late.
The City's motion to extend the time for its response was
based on two grounds, the first being "a misunderstanding that
once the original was amended it was interpreted that the
amendment delayed the response time by thirteen days from the
date of the amendment to both the original and the amendment."
At hearing, Mr. Carr, the Human Resources Manager, further
explained his position, asserting that the response to the
amended complaint was due March 25th and therefore had been filed
within the deadline, and that the only reason the response to the
original complaint was late was because he had thought a response
to the original was not necessary. Mr. Carr is correct that only
one response to the complaint as amended was required. He is not
correct about the filing deadline for that response.
More specifically, Mr. Carr suggested at hearing that his
response was due thirteen days from the date of the Board's March
12th notification letter. There is absolutely no basis, either
_________________________
7The Board does not require that responses by typed. It
does require that they be served on the other party, and that
proof of service be supplied to the Board. Board Rule 4.05. In
the first notification letter, the City was notified by the
executive director of the requirement to serve the response on
the Teamsters.
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in the Board's rules or in the March 12th letter itself, for that
assertion. Even Mr. Carr's own motion for an extension states
that he believed the response was due thirteen days from the date
of the amendment. The date of the notification letter is not
even mentioned in the request for an extension.
Counsel for the City also argued that the response was
timely, because it was due thirteen days from the time the City
received the amendment to the complaint. This argument is
unfounded as well. Rule 4.06(D) requires a response to an
amended complaint to be filed within ten calendar days of service
of the amendment. Service on another party is complete when the
paper is mailed or hand-delivered. Rule 7.03. If the amended
complaint is served by hand, the response is due ten days later.
If the amendment is served by mail, three days are added to the
prescribed period. Rule 7.02(D). Thus, the response was due
thirteen days from the date the amendment was mailed.
The City's position -- that the response was due thirteen
days from the date the amendment was received -- makes no sense
in light of the purpose of Rule 7.02(D).8 By providing three
days for the post office to deliver the amendment, the rule
ensures that in most cases respondents will have the full ten
days to respond.9 Adding three days to the ten days prescribed
by the rule, and then measuring the thirteen days from the date
_________________________
8Even if the thirteen days were measured from date of
receipt, the City's response would technically not have been
timely. Counsel for the City stated that the City received the
amendment on March 11th or 12th, and the City's handwritten
responses were filed on March 24th. However, they were never
served on the Teamsters, as required by the rules.
9If for some reason delivery is unduly delayed (or the
respondent has some other good reason for being unable to comply
with the rule), a respondent may, prior to expiration of the time
limit, request an enlargement of time within which to file. Rule
7.02(C)(1). The Board will normally grant such requests.
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the amendment is received, would not ensure equitable treatment
for respondents served by mail -- it would ensure more favorable
treatment by giving them thirteen days to respond rather than the
ten days prescribed by the rule. There is no basis for the Board
to make such inequitable distinctions.10 Furthermore, even if the
City misunderstood Rule 7.02(D) itself, the notification letter
it received from the Executive Director should have cleared up
the misunderstanding; that letter clearly states that the
response was due thirteen days from the date of mailing of the
amendment. If the City was still confused after receiving the
notification letter, a phone call could have been made.
Turning to the City's alternative argument, that an
extension of time should be granted for the late filing, we
disagree. As we pointed out earlier, had the City requested an
extension under Rule 7.02(C)(1) (before the time period expired),
it would likely have been granted. Since the City ignored that
rule and sought the extension only after it had missed the filing
deadline and had been told to get the response filed immediately,
Rules 4.05(B) and 7.02(C)(2) apply, and the City must show that
its failure was the result of excusable neglect. It has not done
so.
In its request for an extension, the reason given for the
late filing was that Mr. Carr's secretary had been absent due to
illness and "was unable to complete the draft until now." Three
observations are in order. First, the secretary's illness does
not explain why the City did not simply file its handwritten
_________________________
10Counsel's suggestion that the purpose of the thirteen-day
rule is to allow the respondent to mail its response on the 10th
day makes even less sense than the City's interpretation of the
rule itself. Respondents who are served by hand-delivery can't
mail their responses on the 10th day, since that is when they
must be received by the Board. Why should respondents served by
mail be able to do so?
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response earlier -- it ended up filing handwritten responses
anyway, but in an untimely manner. Mr. Carr was in Augusta on
March 16th, 17th, 18th and 19th, and could have filed his
responses on any of those days. Second, if the City was
initially uncomfortable with filing a handwritten response, it
could have arranged for some other employee with typing skills to
type the response. By Mr. Carr's own admission, he could have
assigned the typing to another clerical. Third, we are puzzled
by an apparent contradiction in Mr. Carr's testimony in
connection with the cause for the late filing. On the one hand,
Mr. Carr testified that he had left the responses for typing by
his secretary during the week of March 15th, and found out on
Monday, March 22nd, that she was still out. But he also
testified that he had the handwritten responses with him in
Augusta when he called the Board's offices and spoke to the
executive director on March 24th about when his response was due.
The responses Mr. Carr hand-delivered to the Board that day were
originals, not photocopies. Did he leave photocopies back at his
office for typing? Why did he need to have the originals with
him in Augusta on March 24th if he didn't think they were due
until March 25th, and he wanted them typed?11
_________________________
11As an aside, we are also troubled by other apparent
contra-dictions in Mr. Carr's testimony. For instance, Mr. Carr
testified that he was not told by the executive director, on
March 24th, that his response was due on March 22nd. Yet the
handwritten response to the original complaint contained the date
of March 22, 1993, in different ink than the ink used to draft
the response. Also, both of the City's typewritten responses,
typed originally with a date of March 24th, contained the typed-
over date of March 22nd. If Mr. Carr thought his response was
due March 25th, why the focus on March 22nd, the actual due date?
Moreover, why the denial that either the secretary or Mr.
Carr had intentionally changed the date on the typewritten
responses, where the documents themselves show clearly that the
original date of March 24th was changed to March 22nd? Since the
date of filing is the date a document is actually received by the
Board (Rule 7.03), the changed date does not affect the outcome
of this matter. However, it does add to our perception that the
City has been less than straightforward in defending its actions.
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In any case, we wish to point out that during the week of
March 15th, when Mr. Carr's secretary was ill, Mr. Carr could
have requested an enlargement of time before the deadline had
run. Rule 7.02(C)(1). Presumably he did not do so because he
had not read Rule 7.02, even though the executive director's
March 12th notification letter directed him to that rule, among
others.12
In sum, it appears to us that in spite of the executive
director's efforts to notify the City of its responsibilities in
connection with the Teamsters' complaint, the City simply did not
treat those responsibilities with the seriousness that this Board
and its rules intend. In these circumstances, we find that the
City's failure to file a timely response to the complaint was not
the result of excusable neglect.
Remedy
At hearing, the Teamsters requested 1) attorney's fees, to
the extent that the Teamsters have provided an itemized list of
those expenses within 10 days of the hearing;13 2) an order for
the City to sign the collective bargaining agreements for police
and public works that have been ratified by both parties; 3) an
order for the City to cease and desist from refusing to partici-
pate in mediation and from coercing employees in the exercise of
their bargaining rights; 4) an order to post a notice of the
violations; and 5) any other relief deemed appropriate by the
Board. In response, the City argued that the complaint is moot,
since both parties have ratified the contracts in question. It
further asserted that an order to sign those contracts would be
inappropriate, since the complaint did not address that issue.
_________________________
12In testimony at hearing, Mr. Carr admitted that he had not
read the Board's Rules and Procedures.
13Since no such list has been provided, the Teamsters have
waived this aspect of the request.
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In its written request for dismissal of the complaint, filed
after the hearing, the City reiterated its mootness argument, and
further asserted that the complaint fails to state a prima facie
violation of the MPELRL. We reject the City's position.
In the absence of a finding of excusable neglect, failure to
file a timely response constitutes "an admission of the properly
pleaded material facts alleged in the complaint." Rule 4.05(B).
In its original complaint, the Teamsters alleged that the City
had refused to participate in a scheduled mediation session after
requesting mediation, and had attempted to coerce the union into
accepting an insurance proposal that had not been proposed during
negotiations. The amended complaint clarified that the new
insurance proposal had been made after the City refused to ratify
agreements that had been reached by negotiators. The amendment
otherwise provided substantially more detail regarding both
allegations.
Refusing to participate in the dispute resolution procedures
outlined in the MPELRL constitutes a failure to bargain in good
faith. MSAD #68 Teachers Association v. MSAD #68 Board of
Directors, No. 79-22, 1 NPER 20-10001 (Me.L.R.B. Jan. 24, 1979).
Making bargaining proposals, after a failed ratification vote,
that are beyond the scope of proposals made at the bargaining
table, also frustrates the bargaining process, whether due to a
failure to clothe the negotiator with sufficient guidelines and
authority to conduct negotiations, or some other reason. City of
Westbrook v. Council 74, AFSCME, No. 81-50, 4 NPER 20-12044
(Me.L.R.B. Sept. 24, 1981). These violations of section
964(1)(A) and (E) of the MPELRL should be remedied even though
the parties have ratified a contract. Even "execution of [a]
collective bargaining agreement does not vitiate pre-agreement
violations of the [MPELRL]." Oxford Hills Teachers Association
v. MSAD No. 17 Board of Directors, No. 88-13, slip op. at 6, 12
NPER ME-21000 (Me.L.R.B. June 16, 1989).
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Accordingly, we will issue a default order that remedies the
allegations in the complaint, in order to effectuate the policies
of the MPELRL. 26 M.R.S.A. 968(5)(C) (1988). More specifi-
cally, we will order the City to cease and desist from failing to
participate in mediation in connection with negotiations for
units of the Biddeford Police Department; and to cease and desist
from making new bargaining proposals, after refusing to ratify,
that are beyond the scope of proposals made during negotiations,
in connection with police and public works bargaining units. The
City will also be required to sign, date and post the attached
"Notice" within ten calendar days of the date of issuance of this
decision and order.
We decline to order the City to sign the collective bargain-
ing agreements for police and public works that have been rati-
fied by both parties. Neither the original complaint nor the
amendment makes any allegations regarding events that occurred
after ratification. There is no doubt that the failure to
execute an agreement that has been arrived at constitutes a
failure to bargain in good faith. 26 M.R.S.A. 965(1)(D) (1988).
The Board will entertain a new complaint regarding the alleged
failure to execute, should the Teamsters decide to file one.
ORDER
On the basis of the foregoing facts 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. 1992) and the Board's Rules and Procedures, it is hereby
ORDERED:
1. That the City of Biddeford and its representatives and
agents shall:
a. Cease and desist from refusing to participate in
mediation in connection with contract negotiations
for the five bargaining units in the Biddeford
Police Department.
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b. Cease and desist, after refusing to ratify, from
making bargaining proposals that are beyond the
scope of proposals made during negotiations in
connection with police and public works bargain-
ing units, and/or failing to clothe its negoti-
ator with sufficient guidelines and authority
to effectively conduct negotiations.
c. Take the following affirmative actions that are
necessary to effectuate the policies of the MPELRL:
i. Sign, date and post, within 10 calendar days
of the date of issuance of this decision and
order, at all locations where notices to
members of the police and public works bargain-
ing units are customarily posted, and at times
when such employees customarily perform work at
those places, copies of the attached "Notice."
ii. Take such reasonable steps as may be necessary
to ensure that said posted notices are not
altered, defaced, or covered while they are
posted pursuant to this Order.
2. That the request of the Teamsters for an order requiring
the City to sign contracts that it has ratified is denied.
Issued at Augusta, Maine, this 3rd day of June, 1993.
MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right, pursuant to
26 M.R.S.A. 968(5)(F) (Supp. /s/________________________
1992), to seek review of this Peter T. Dawson
decision and order by the Chair
Superior Court. To initiate
such a review, an appealing
party must file a complaint /s/________________________
with the Superior Court within Howard Reiche, Jr.
fifteen (15) days of the date Employer Representative
of issuance of this decision
and order, and otherwise
comply with the requirements /s/________________________
of Rule 80C of the Maine Rules George W. Lambertson
of Civil Procedure. Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 287-2015
NOTICE
______________________________________________________________________
NOTICE TO ALL EMPLOYEES IN THE CITY OF BIDDEFORD
POLICE AND PUBLIC WORKS BARGAINING UNITS
Pursuant to
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS LAW
you are hereby notified that:
1. The City will cease and desist from refusing to
participate in mediation in connection with contract
negotiations for the five bargaining units in the
Biddeford Police Department.
2. The City will cease and desist, after refusing to
ratify, from making bargaining proposals that are
beyond the scope of proposals made during negoti-
ations in connection with police and public works
bargaining units, and/or from failing to clothe its
negotiator with sufficient guidelines and authority
to effectively conduct negotiations.
Dated: CITY OF BIDDEFORD
___________________________
Robert B. Carr
Human Resources Manager
If employees have questions concerning this Notice or compliance
with its provisions, they may communicate directly with the
offices of the Maine Labor Relations Board at the above address
and telephone number.