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 -1- 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. -2- 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 -3- 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 -4- 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. -5- 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 -6- 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 -7- 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 -8- 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. -9- 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 _____________________ 5 The record contains no evidence of a ground rule on the subject and no affirmative assumption of this duty by the District. -10- 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, -11- 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 -12-