STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 95-07 and -08
Issued: March 24, 1995
____________________________
)
TEAMSTERS UNION LOCAL 340, )
)
Complainant, )
)
v. )
)
PORTLAND WATER DISTRICT, )
)
Respondent, )
)
and ) DECISION AND ORDER
)
PORTLAND WATER DISTRICT, )
)
Complainant, )
)
v. )
)
TEAMSTERS UNION LOCAL 340, )
)
Respondent. )
____________________________)
On September 6, 1994, Teamsters Union Local 340 (Teamsters)
filed a prohibited practice complaint with the Maine Labor
Relations Board (Board) in which the Teamsters allege that during
contract negotiations the Portland Water District (District) has
violated 26 M.R.S.A. 964(1)(E) (1988), by providing the
Teamsters "with false information with regards [sic] to
calculating the delay of implementing a 4% wage increase to fund
a bonus," by failing to notify the Teamsters of the error or to
provide correct information, and by insisting that the Teamsters
honor a contract containing provisions ratified by the bargaining
unit on the basis of the erroneous information. The complaint
also alleges that the District has simultaneously refused to
honor the agreement by refusing to provide a $700 bonus to all
bargaining unit members, in an attempt "to force the Union to
sign a contract that is incorrect." The Teamsters ask the Board
to direct the District to change the effective date of the wage
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increase in the contract from 2/27/95 to 2/20/95 to reflect the
alleged economic commitment of the District at the table.[fn]1 The
Teamsters ask for reimbursement of all expenses of bringing the
complaint before the Board.
The District filed its answer on September 22, 1994, which
states that both parties have ratified the agreement, and
generally denies the charged prohibited practice. The District
filed motions for consolidation and for expedited hearing of the
cases on September 23, 1994. On October 23, 1994, the Teamsters
withdrew its previous allegations that the District has refused
to honor the agreement and that the District has attempted to
coerce the Teamsters' execution of a contract which is
"incorrect."
On September 19, 1994, the District filed a prohibited
practice complaint against the Teamsters alleging that the
Teamsters have violated 26 M.R.S.A. 964(2)(B) and 965(1)(D)
(1988 & Supp. 1994) by refusing to sign a collective bargaining
agreement ratified by both the bargaining unit and the District's
Board of Trustees. The Teamsters generally deny the substantive
allegations in the District's complaint.
A prehearing conference was conducted by Board Chair Peter
T. Dawson, on November 17, 1994. Chair Dawson's December 2,
1994, Prehearing Conference Memorandum and Order, which
consolidates these cases for hearing, is hereby incorporated in
and made a part of this Decision and Order.
On December 14, 1994, an evidentiary hearing was conducted
_____________________
1 The essence of the complaint is that whether by
inadvertence or by design the Teamsters have been misled into
submitting for ratification a contract which falls short of the
District's alleged level of monetary commitment at the bargaining
table by an amount equalling one week of wage increase or about
$18.66 per employee over the level contained in a previously
rejected tentative agreement.
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by the Board, consisting of Alternate Chair Pamela D. Chute,
Alternate Employer Representative Eben B. Marsh and Alternate
Employee Representative Wayne W. Whitney. The Teamsters were
represented at hearing by Teamsters' Secretary-Treasurer Harvard
Brassbridge. The District was represented at hearing by Attorney
Frederick B. Finberg.
JURISDICTION
The Board has jurisdiction to hear evidence, to determine
the issues in this case and to render a decision and order
pursuant to 26 M.R.S..A. 968(5) (1988). The District is a
public employer within the meaning of 26 M.R.S.A. 962(7) (Supp.
1994). The Teamsters are a public employee organization, within
the meaning of 26 M.R.S.A. 968(5)(B) (1988), which represents,
for the purposes of collective bargaining, a unit of the
District's employees described:
INCLUDED: All District employees in the following
departments: construction and water
operations, wastewater, general services,
marketing and customer services, lake
operations and laboratory, engineering and
general office.
EXCLUDED: General forepersons, administrators,
executives and confidential employees within
the meaning of the Municipal Public Employees
Labor Relations Law.
The Complaints allege violations within the meaning of
26 M.R.S.A. 964(1)(E) & (2)(B) (1988), of the bargaining
obligations set forth in 26 M.R.S.A. 965 (1988 & Supp. 1994).
POSITIONS OF THE PARTIES
The Teamsters contend that in an attempt to fund a "bonus"
for unit members within economic guidelines the District was
asked to calculate the 'period of delay' to provide the needed
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dollars. The Teamsters contend they "accepted the date given by
the [District] in good faith and ratified based on the economics
of the package, [that t]he error was later discovered by the
Union in recalculating the figures prior to execution [and that
t]he employer has refused to correct the error." The Teamsters
contend this conduct by the District constitutes a failure to
"provide relevant information needed in the bargaining process."
The District contends that it never led the Teamsters to
believe that its final offer represented an offer equal in value
to any previous offer and contends that both parties knew they
were dealing in approximations. The District alleges that the
Teamsters' unilateral mistake cannot constitute grounds for
"reforming" the agreement to the Teamsters' understanding.
Finally, the District contends that the Board lacks authority to
alter the contract to reflect the changed effective date urged by
the Teamsters, stating that the Board can, at most, order the
parties to resume negotiations.
FINDINGS OF FACT
Negotiations began in the fall of 1992 for a successor to
the parties' contract which was to expire December 7, 1992. The
District made a "final offer" shortly after the contract expired.
The parties participated in mediation, fact finding and interest
arbitration. An interest arbitration award issued at the end of
January or the beginning of February of 1994. Thereafter the
parties resumed negotiations on subjects respecting which the
arbitration award was not binding.
The parties met on May 16, 1994. Negotiator Peter Bennett
suggested a 3 percent wage increase and an additional year's
duration, which would have extended the contractual period until
December of 1995. The parties agreed to meet again on May 25.
At the May 25, 1994, negotiation session, the parties reached a
tentative agreement which, inter alia, contained monetary
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provisions including an immediate $500 cash bonus for each unit
member and a 4 percent wage increase which was to become
effective on December 4, 1994. These monetary provisions were
initially proposed by the union. The May 25, 1994, tentative
agreement was rejected by the Teamsters' membership.[fn]2
The parties next met for negotiations on June 7, 1994. The
District informed the Teamsters that they were willing to discuss
rearranging the monetary aspects of the rejected agreement but
that the level of monetary commitment by the District in the
rejected agreement could not be exceeded.[fn]3 Teamsters' negoti-
ating team member Brassbridge offered a $400 bonus and a 4
percent wage increase to take effect July 1 of 1994 rather than
in December of 1994. The District caucused and concluded that
Brassbridge's proposal would cost $100,000 more than the
previously rejected tentative agreement.
The parties next met on July 7. Brassbridge, Teamsters'
Business Agent William Turkewitz, District employee William Berry
and Shop Steward Thomas Hume served on the Teamsters' negotiating
committee and were present at the July 7, 1994, negotiating
session. The District's negotiating team on July 7, 1994, was
composed of District Human Resources Director Robert L. Gilmore,
District Chief Negotiator Peter Bennett, and District Director of
Operations Steve Gordon. Prior to the negotiating session,
Bennett and Brassbridge game-planned the initial presentation of
a bonus/wage/implementation date proposal by the Teamsters, and
planned the discussion of an additional holiday. Offers and
_____________________
2 It is not clear whether the tentative agreement was
rejected by the union's or unit's "membership."
3 The District purportedly desired to refrain from damaging
the credibility of the Union's negotiating team by letting the
members negotiate a better deal than their representatives could.
The District also did not want to create the impression that all
the unit members had to do was keep turning down contracts to
squeeze more money out of the District.
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counter-offers were made. The Teamsters opened by saying "why
don't we sit down . . . see if we can do something with the
numbers." Bennett suggested that the District hoped Brassbridge
would take the $500 bonus and 4 percent offer back for a revote.
Brassbridge responded, "No way." Some of the positions taken by
the Teamsters were not universally supported by the Teamsters'
negotiating committee. Although a few members of the Teamsters'
team did not agree with this approach, the parties' discussions
primarily concerned rearranging the financial components of the
rejected agreement in close approximation to the level of the
District's previous financial commitment. The District
reiterated its intent to adhere to the maximum dollar commitment
reflected in the previously rejected tentative agreement. The
District indicated that there was no more money available.
The discussions on July 7 were wide-ranging. There was a
Teamsters' proposal of an extra holiday on Martin Luther King,
Jr., (MLK) day. The District resisted, requiring the exchange of
an existing holiday for the proposed MLK holiday. Some
unspecified language issues were discussed including proposals
respecting a call-in list for overtime and riders in District
vehicles.
At the session, Bennett suggested a $575 bonus and a wage
increase of 3 percent. Brassbridge suggested a $425 bonus and a
4 percent wage increase. The District stated that it was
opposed to a wage increase in excess of 4 percent. Bennett
suggested increasing the bonus dramatically and delaying the
implementation. Bennett suggested a $675 bonus and 4 percent
effective February 20. A member of the Teamsters' team suggested
a $700 bonus "because it would just look better." The Teamsters
were trying to obtain a larger bonus "so that the individuals
would think it was a good contract."
The District committee left the room to caucus. When they
returned they indicated that they could give a $700 bonus with a
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4 percent increase effective March 7, 1995. Brassbridge stated
that March 7 seemed like more delay than was necessary to fund a
$200 increase in the bonus and asked the District if it could do
better. Brassbridge proposed a February 20 effective date
because February "sounded better" than March. The District
committee caucused again, making several phone calls. Any wage
increase had to start at the beginning of a payroll period. The
District got an incorrect tentative answer from District Finance
Director/Treasurer Ron Miller regarding what delayed payroll
implementation date would fund the $200 increase in the bonus.
Miller was instructed to do a different calculation.
When the District Committee returned from caucusing, Bennett
counter-offered a wage increase effective date of February 27,
1995, to "split the difference." Bennett indicated that the date
fell somewhere between the February 20 and March 6 dates and that
"they could give a few days or something like that." The parties
shook hands and the District's team left the negotiating room.
Miller did not get back to the District's negotiators with the
recalculation before the tentative agreement was reached. After
the District bargaining team left, the phone rang. Berry
answered the phone and spoke with Miller.
Use of February 27 rather than February 20 as an effective
date results in an average loss to each employee of $18.65, or a
total cost of $223.87 in salary savings to offset the $200
increase in the bonus. The Teamsters' suggested date of
February 20 would have come out in the employer's favor by $5.22.
The Teamsters do not impute to the District any intent to
misrepresent the 27th of February as the earliest effective date
which would have provided savings in wage increases sufficient to
cover a $200 increase in the bonus. No one on the District's
behalf represented the February 27th date as an exact swap.
The Teamsters assumed that the District's offer was "value for
value," and that February 27 was the earliest effective date
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which would provide enough savings to fund the $200 increase in
the bonus.
The Teamsters' experience with the District had been that
"if the company made an offer and said that it was a fact that
generally it was a fact." The Teamsters "asked the District to
give [them] the figures." Although the District said that the
money to fund the $200 increase would be there on February 27th,
it would also have "been there" on February 20th. Throughout the
discussions the Teamsters were trying to squeeze out a little
more than the District had authorized its committee monetarily.
The District team always resisted, stating they could not exceed
their authority. The Teamsters would not "have had a problem" if
the money had come out by mistake in their favor. The Teamsters
knew that the delay in the effective date of the wage increase
would not match exactly the $200 increase in the bonus. "The
District never said it was an exact swap."
At the July 7 meeting, the Teamsters possessed the wage
rates for each of the 170 unit employees. These employees
occupied approximately thirty-five job classifications paid
according to fourteen pay scales. Prior to reaching the second
tentative agreement, the parties had discussed both the value of
1 percent in salary increase and the value of moving the 4
percent wage increase 5 months. The District and the Teamsters
possessed the same average hourly wage rate figures during all
material negotiations. Although the Teamsters suggest that it
would take "a considerable amount of time" to "crunch the
figures" no exact estimate of the time required appears in the
record. Bill Berry used a pencil and paper to review financial
information during negotiations "as much as [he] could," without
a calculator. No one on the Teamsters' team was "crunching
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figures."[fn]4 Berry did not look at any version of the contract
before the ratification vote.
No additional information was supplied to the Teamsters by
the District after the tentative agreement was reached. The
District supplied the Teamsters with a red-lined version of the
contract shortly after the tentative agreement was reached.
Between July 7 and the ratification meeting on July 18 there were
no union meetings. The Teamsters submitted to the membership a
list of the changes from the previous contract. The membership
ratified the tentative agreement on July 18 and the Teamsters
notified the District of the ratification. The trustees of the
District ratified the agreement on July 25, 1994. The District
has paid the bonus.
DISCUSSION
Upon consideration we conclude that the District has not
unlawfully failed to provide information and has not otherwise
bargained in bad faith as is alleged by the Teamsters. On the
other hand, we do conclude that the Teamsters have unlawfully
refused to bargain within the meaning of 26 M.R.S.A. 964(2)(B)
(1988) by refusing to execute a mutually agreed and duly ratified
tentative collective bargaining agreement, in violation of
26 M.R.S.A. 965(1)(D) (1988).
Contrary to the Teamsters' allegations, the evidence
establishes that the parties were engaging in collective
bargaining negotiations on July 7, 1994. The evidence shows that
proposals respecting the complete financial package had been
distilled down to the singular issue of what implementation date
____________________
4 Delay in the date of the implementation of the pay increase
was to the benefit of the District because the period of delay
was during the busiest time of year for construction. Addition-
ally, employees with less than average salaries benefited more by
an increase in the bonus.
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with a 4 percent wage increase would approximate the amount of
funds necessary to fund a $200 increase in a $500 one-time bonus
for all bargaining unit members.
The evidence does not establish that the District agreed to
provide accounting services for the Teamsters[fn]5 or that the
District intended to mislead the Teamsters to believe that
February 27 was either an exact swap, or the date most closely
approximating an exact swap of the value of the $200 increase in
the previously rejected $500 bonus. The evidence establishes
that the District expressly stated that any increase in the bonus
would have to be made up by a delay in implementation and that it
agreed to a date, February 27, which satisfied the stated
criteria. The evidence also does not establish that the
Teamsters reserved the right to verify that the agreed-to date
was the earliest date of implementation which would fund the
increased bonus.
The Teamsters did not come to the negotiations equipped with
a lap top computer, a calculator or even spread sheets, did no
hand calculations at negotiations and did not bother to verify
the equivalence of the District's offered February 27 date either
prior to accepting it or at any time prior to ratification by its
membership.
These parties have been engaged in difficult negotiations
since September of 1992. They have appeared before this Board
for resolution of the Teamsters' allegations: that "during the
[parties'] stalled negotiations there has been an escalation both
in the number and level of disciplinary measures, and that the
District has discriminatorily visited discipline only on those
employees . . . decrying . . . the District's treatment of
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5 The record contains no evidence of a ground rule on the
subject and no affirmative assumption of this duty by the
District.
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employees represented by the Teamsters, the status of
negotiations and/or the District's wastefulness." Teamsters
Union Local 340 v. Portland Water District, No. 93-31, slip op.
at 3-4 (Me.L.R.B. Sept. 7, 1993). They have also engaged in a
lengthy court battle over an application to compel arbitration,
arising out of certain of the next above mentioned allegations,
which has only recently been put to rest by the Maine Supreme
Judicial Court in the case styled Teamsters Union Local #340 and
Ralph Dobson v. Portland Water District, No. CUM-93-781 (Me.
Dec. 19, 1994). In light of these circumstances, even taking
into consideration the apparent advanced choreography of the
July 7 meeting by Bennett and Brassbridge, it is unlikely that
any reliance Brassbridge may have had upon the equivalence of the
February 27 date was reasonable.
The Teamsters could not have been mistaken about their
having accepted the District's offer of a February 27 implemen-
tation date. While the Teamsters may have been mistaken about
whether the February 27 date was the earliest implementation date
which would fund the increased bonus, that mistake was in no way
attributable to the District. Accordingly, we find that the
record, considered in light of the parties' arguments, indicates
no reasonable basis to avoid the conclusion that the Teamsters
have entered into an arm's length agreement which it may not now
refuse to reduce to writing and to execute.
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. 1994), it is hereby ORDERED that the
Teamsters' September 6, 1994, complaint be, and hereby is,
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DISMISSED. It is our further order that the Teamsters execute
the agreement ratified by its unit members on July 18, 1994.
Issued at Augusta, Maine this 24th day of March, 1995.
The parties are hereby advised MAINE LABOR RELATIONS BOARD
of their right, pursuant to
26 M.R.S.A. 968(5)(F) (Supp.
1994), to seek review of this
decision and order by the /s/______________________________
Superior Court. To initiate Pamela D. Chute
such a review, an appealing Alternate Chair
party must file a complaint
with the superior Court within
fifteen (15) days of the date
of issuance of this decision /s/______________________________
and order, and otherwise Eben B. Marsh
comply with the requirements Alternate Employer Representative
of Rule 80C of the Maine Rules
of Civil Procedure.
/s/______________________________
Wayne W. Whitney
Alternate Employee Representative
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