STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-23
Issued: January 27, 1987
________________________________
)
KITTERY EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
ERIC STRAHL, Town Manager, and )
the TOWN OF KITTERY, )
)
Respondents. )
________________________________)
The questions presented in this prohibited practices case are
whether Eric Strahl, Town Manager of the Town of Kittery, and the Town
of Kittery (hereinafter referred to together as "Employer") violated
26 M.R.S.A. Sec. 964(1)(A), (B), (C) and (E) by: (1) failing to meet
within 10 days after receipt of a written notice from the Kittery
Employees Association ("Union") requesting a meeting for collective
bargaining purposes; (2) failing and refusing to negotiate in good
faith with the Union; (3) the Chairman of the Kittery Town Council's
making a derogatory statement, in connection with the unit employees'
choice of their representatives for purposes of collective bargaining;
and (4) unilaterally increasing the salary for one of the classifica-
tions in the bargaining unit represented by the Union. We hold that
some of the Employer's actions violated the Municipal Public Employees
Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-A (1974 & Pamph. 1986).
We will fashion a remedy appropriate to redress the violations and to
effectuate the policies of the Act.
The prohibited practices complaint was filed on May 21, 1986,
pursuant to 26 M.R.S.A. Sec. 968(5)(B) (Pamph. 1986), by the Union,
alleging that the Employer's actions violated the sections of the Act
mentioned in the preceding paragraph. The Employer filed its answer
on June 12, 1986, denying that its actions transgressed any provision
of the Act and moving to dismiss the Union's complaint.
A prehearing conference on the case was held on July 8, 1986,
Alternate Chairman Donald W. Webber presiding. on July 10, 1986,
-1-
Alternate Chairman Webber issued a Prehearing Conference Memorandum
and Order, the contents of which are incorporated herein by reference.
A hearing on the merits of the case was conducted by the Maine
Labor Relations Board ("Board"), Chairman Edward S. Godfrey presiding,
with Employer Representative Thacher E. Turner and Employee Represen-
tative George W. Lambertson, on August 6, 1986. The Union was repre-
sented by John R. Kennedy, Personnel Consultant, and the Employer was
represented by Richard G. Moon, Esq. The parties were given full
opportunity to examine and cross-examine witnesses, to present
evidence, and to make argument.
JURISDICTION
The Complainant Kittery Employees Association is the certified
bargaining agent, within the definition of 26 M.R.S.A. Sec. 962(2)
(1974), for three separate units of employees of the Town of Kittery:
the Kittery Administrative/Clerical Bargaining Unit, the Kittery
Technical Employees Bargaining Unit, and the Kittery Professional
Employees Bargaining Unit. The Town of Kittery is the public
employer, within the definition of 26 M.R.S.A. Sec. 962(7) (Pamph. 1986),
of the employees whose job classifications are included in the
bargaining units mentioned in the preceding sentence. At all times
relevant hereto, Eric A. Strahl has been the Town Manager and Jeffrey
Thomson has been the Chairman of the Town Council of the Town of
Kittery. Since the alleged acts concerning Strahl and the statement
allegedly made by Thomson are said to have arisen out of and been per-
formed or uttered by them in the course of their official duties with
the Town of Kittery, Mr. Strahl and Mr. Thomson are public employers,
within the definition of 26 M.R.S.A. Sec. 962(7) (Pamph. 1986). The
jurisdiction of the Board to hear this case and to render a decision
and order herein lies in 26 M.R.S.A. Sec. 968(5) (1974 & Pamph. 1986).
FINDINGS OF FACT
1. The Kittery Employees Association is the certified bargaining
agent, within the definition of 26 M.R.S.A. Sec. 962(2) (1974), for three
separate units of employees of the Town of Kittery: The Kittery
-2-
Administrative/Clerical Bargaining Unit, the Kittery Technical
Employees Bargaining Unit, and the Kittery Professional Employees
Bargaining Unit.
2. The Town of Kittery is the public employer, within the defi-
nition of 26 M.R.S.A. Sec. 962(7) (Pamph. 1986), of the employees whose
job classifications are included in the bargaining units mentioned in
the preceding paragraph.
3. At all times relevant hereto, Eric A. Strahl has been the
Town Manager and Jeffrey Thomson has been the Chairman of the Town
Council of the Town of Kittery. The acts of Strahl and the statement
made by Thomson, which are the subject of this case, arose out of and
were performed or uttered by them in the course of their official
duties with the Town of Kittery; therefore, Mr. Strahl and Mr. Thomson
are public employers, within the definition of 26 M.R.S.A. Sec. 962(7)
(Pamph. 1986), of the employees whose job classifications are included
in the bargaining units mentioned in paragraph 1 hereof.
4. On April 15, 1986, the Union sent Town Manager Strahl a
letter which stated: -
In accordance with Chapter 9-A, Title 26 Section 965-1-B,
M.R.S.A. this is a request to meet and commence negotia-
tions on contracts for the three bargaining units repre-
sented by The Kittery Employees Association.
Would you please supply a date and time with an alternate
date and time when you would be available.
5. The letter quoted in the preceding paragraph was received by
Town Manager Strahl on April 17, 1986.
6. On April 23, 1986, Town Manager Strahl replied to the Union's
letter of April 15th by sending the following letter:
I am writing in response to your letter of April 15,
1986, in which you indicate a willingness to commence
bargaining for the three units of the Kittery Employees'
Association and in which you ask that I supply several,
possible times and dates for the first meeting.
After reviewing my schedule, I would suggest Wednesday,
May 7 and Tuesday, May 13, with the starting time on both
days being 1:30 p.m. The first date can be used for the
first meeting and the second date can be used for the second
-3-
meeting. As for a meeting place, we can utilize the small
conference room at the Town Hall, provided the new Town
Planner has not begun work, in which case this room will be
used as his office.
In order to move the negotiations forward in a timely
manner, it would be helpful if you would submit your demands
to me a week prior to the first meeting. This would allow
me to review them and to prepare any questions that I may
have. If you have supporting documentation for these
demands, I would also appreciate receiving a copy of this
material.
If you have additional questions regarding these
matters, feel free to contact me.
7. The Union received the letter quoted in the preceding para-
graph on April 25, 1986.
8. On April 28, 1986, a representative of the Union called Town
Manager Strahl and reminded him of the "ten-day" rule embodied in the
Act. In response to the Union's call, the Town Manager offered to
meet with the Union at 9:00 a.m. the following day for purposes of
collective bargaining.
9. On April 29, 1986, two Union negotiators appeared at the
Kittery Town Hall, at approximately 8:50 a.m. when the Town Manager
failed to appear for the scheduled negotiation session at 9:00 a.m.,
the Union negotiators asked the clerks at the Manager's office about
his whereabouts. The clerks stated that they neither knew where the
Manager was nor when he might arrive at his office.
10. The Town Manager had overslept on April 29th and, at approxi-
mately 11:00 a.m., he telephoned the Union representatives, explained
why he had failed to appear for the 9:00 a.m. meeting, and offered to
meet with the Union on the following day.
11. The Union and Employer negotiators met on April 30, 1986, and
began negotiations for initial collective bargaining agreements for
the bargaining units mentioned in paragraph 1, supra.
12. During April and May, 1986, seven bargaining sessions were
held and, with the assistance of a State Mediator, the parties agreed
on June 11, 1986, to ground rules for negotiations.
13. The Town Manager has been the chief negotiator on behalf of
-4-
the Employer throughout the parties' collective bargaining. The
negotiating authority conferred upon the Town Manager by the Kittery
Town Council for the negotiations mentioned in the preceding two
paragraphs is the same as that which he had during the negotiations
which resulted in successor collective bargaining agreements for the
town's police department employee units: the Town Manager can reach
tentative agreement on all issues; however, the Town Council has
reserved the right to ratify the entire final tentative agreement.
14. On June 11, 1986, the Union presented a comprehensive propo-
sal, consisting of 41 prospective articles, for initial collective
bargaining agreements for the units mentioned in paragraph 1 hereof.
15. The Employer has responded to the Union's position piecemeal,
addressing 4 or 5 articles at a time; however, by the date of the
hearing before the Board, the Employer had expressed its views in
regard to each of the Union's proposals.
16. The Unit Determination Report in MLRB Case Nos. 86-UD-06 and
-08 created a bargaining unit of professional employees of the Town of
Kittery, including the position of Tax Assessor. The employees in the
Kittery Professional Employees bargaining unit opted to be represented
by the Union as their bargaining agent in a representation election
conducted by the Board's Executive Director on March 6, 1986.
17. Prior to April 28, 1986, the Employer offered employment to
an individual to serve as Tax Assessor for the town. In a memorandum
to the Town Council dated April 24, 1986, the Town Manager described
his actions in connection with the offer of employment as follows:
I have hired Mr. Robert F. Whiteley to serve as the
Town's new Assessor. Mr. Whiteley has worked as Assessor
in the Town of Camden, the City of Rockland, the Town of
Kennebunk, and the Town of Kennebunkport. . . .
Mr. Whiteley and I have agreed that his starting salary
will be $23,305.00, which is the present salary for the
Assessor's position. On July 1 of this year his salary
will move to $24,937.00, which represents the 7% increase
included in all collective bargaining agreements that are
now in effect. . . .
18. The Employer did not inform the Union of the agreement con-
cerning the Tax Assessor's salary mentioned in paragraph 17.
-5-
19. During the parties' collective negotiations, the Union pro-
posed a 10% general wage increase for the classifications in the pro-
fessional employees unit, the Employer offered a 2% increase for said
positions, and the parties have not reached agreement of the salary
issue.
20. For personal reasons, the job candidate mentioned in para-
graph 17 hereof did not accept the Employer's offer of employment.
The salary increase for the Assessor classification has not been
implemented and the Employer has conceded at the hearing before the
Board that any salary adjustment for the Assessor position will have
to be negotiated with the Union.
21. The consulting firm engaged by the Union to provide it with
negotiations and labor-relations expertise includes a former Town
Manager of the Town of Kittery and a former Chairman of the Kittery
Town Council. During an executive session of the Kittery Town Council
meeting of March 10, 1986, the Town Manager reported that the Union
had been selected as the bargaining agent for the three units men-
tioned in paragraph 1, supra.
22. The minutes of the Kittery Town Council meeting of
March 10, 1986, read, in part, as follows:
Chairman Thomson stated that he felt it was unfortunate
that a former Town Manager now assists in the organiza-
tion of the Kittery Employee Association when it was in
his capacity as Town Manager to have assisted them then.
DECISION
The prohibited practices complaint avers that the Employer, by
committing certain acts and by engaging in a particular pattern of
conduct, has violated several sections of the Act. Considered chrono-
logically, the management conduct at issue is as follows: (1) the
Town Council Chairman's statement concerning the Union's retention of
a certain individual as its labor relations consultant; (2) the
failure to meet with the Union within ten days of receipt of a notice
requesting a meeting for collective bargaining purposes; (3) agreeing
with a prospective employee to increase the salary for a bargaining
unit position, without advanced notice to the bargaining agent; and
-6-
(4) the failure and refusal to negotiate in good faith. We will ana-
lyze this allegedly unlawful conduct in separate sections of the
ensuing discussion.
The Town Council Chairman's statement. Included among the part-
ners of the labor relations firm retained by the Union are a former
Kittery Town Manager and a former Chairman of the Kittery Town
Council. A member of the consulting firm filed the petitions for
appropriate unit determination and appeared on behalf of the Union at
the unit determination proceeding which resulted in creation of the
bargaining units now represented by the Union. Kittery Employees
Ass'n and Town of Kittery, MLRB Nos. 86-UD-06 and -08, Slip op. at 3
(Feb. 13, 1986). Upon learning that the employees in the three
bargaining units had opted to be represented by the Union as their
bargaining agent, the Chairman of the Kittery Town Council was quoted
in the council's minutes as stating that it was "unfortunate" that a
former Town Manager was now assisting the Union.
We have held that a public employer violates 26 M.R.S.A.
Sec. 964(1)(A) (1974) if it engages in conduct or makes statements which,
"it may reasonably be said," tend to interfere with the free exercise
of employee rights under the Act. Kittery Employees Ass'n v. Strahl,
MLRB No. 86-16, Slip op. at 7 (Aug. 6, 1986); Maine State Employees
Ass'n v. State Development Office, MLRB No. 84-21, Slip op. at 8-9
(July 6, 1984), aff'd, 499 A.2d 165, 169 (Me. 1985). In particular,
statements which either threaten employees with loss of employment
benefits or which promise improved conditions of employment as induce-
ments for the non-selection, circumvention, or ouster of a bargaining
agent have been held to violate Sec. 964(1)(A) of the Act. Teamsters
Local Union No. 48 v. Town of Kittery, MLRB No. 84-25, Slip op. at 5-7
(July 13, 1984); Teamsters Local Union No. 48 v. Rumford/Mexico
Sewerage District, MLRB No. 84-08, Slip op. at 6-7 (Mar. 12, 1984).
Such statements have been deemed coercive, regardless of their being
couched in terms of the speaker's "personal opinion." Bridgton
Federation of Public Employees v. Hamill, MLRB No. 81-54, Slip op.
at 9 (Mar. 3, 1982).
The Chairman's statement at issue here was neither a promise of
benefit nor a threat against the bargaining unit employees. In
-7-
M.S.A.D. No. 44 Administrators Ass'n v. M.S.A.D. No. 44 Board of
Directors, MLRB No. 77-27, Slip op. at 3 (June 20, 1977), we held that
an employer's statement expressing "dismay" that some of its organized
employees had hired one of the district's former superintendents of
schools as their chief negotiator and spokesman did not violate the
Act. In that case, as here, there was no representation election
petition pending at the time that the statement was made and the
employer continued to negotiate with the union representative.
Although the Employer's comment could, in other circumstances, tend to
interfere with the public employees' choice of a representative for
purposes of collective bargaining, we hold that the statement at issue
did not violate Sec. 964(1)(A) of the Act.
The failure to meet within 10 days of receipt of a "10-day notice."
Title 26 M.R.S.A. Sec. 965(1)(B) (Pamph. 1986) provides that the parties'
duty to bargain collectively includes their mutual obligation "[tlo
meet within 10 days after receipt of written notice from the other
party requesting a meeting for collective bargaining purposest pro-
vided the parties have not otherwise agreed in a prior written
contract." We have always interpreted this provision of the Act
literally and have held it to be a per se violation for a party to
fail to honor a "10-day notice" within 10 days after its receipt.
Washburn Teachers Ass'n v. Barnes, MLRB No. 83-21, Slip op. at 8
(Aug. 24, 1983); Saco Valley Teachers Ass'n v. M.S.A.D. No. 6 Board of
Directors, MLRB Nos. 85-07 and -09, Slip op. at 7 and 11 (Mar. 14,
1985). On April 17, 1986, the Employer received a letter from the
Union stating that it had been sent pursuant to Sec. 965(1)(B) and
requesting a meeting to "commence negotiations on contracts for the
three bargaining units represented by the Kittery Employees
Association." Since it mentioned the relevant statutory provision and
requested a meeting for purposes of collective bargaining, the letter
adequately placed the Employer on notice of the 10-day requirement
embodied in the Act. The Employer did not meet with the Union within
ten days of April 17, 1986 and, therefore, committed a per se viola-
tion of Sec. 965(1)(B) of the Act.
The unilateral increase of the Tax Assessor's salary. The statu-
tory duty to bargain, created by 26 M.R.S.A. Sec. 965(1) (Pamph. 1986)
-8-
and enforceable through 26 M.R.S.A. Secs. 964(1)(E) and 964(2)(B) (1974),
requires the public employer and the bargaining agent to "negotiate in
good faith with respect to wages, hours, working conditions and
contract grievance arbitration." 26 M.R.S.A. Sec. 965(1)(C) (Pamph.
1986). Concomitant with the duty to bargain is a prohibition against
a public employer's making a unilateral change in a mandatory subject
of bargaining. Our Board has discussed the unilateral change rule as
follows:
Changes in the mandatory subjects of bargaining implemented
unilaterally by the public employer contravene the duty to
bargain created by Sec. 965(1) of the Act and violate 26
M.R.S.A. Sec. 964(1)(E). The rationale behind this principle
of labor law is that an employer's unilateral change in a
mandatory subject of bargaining "is a circumvention of the
duty to negotiate which frustrates the objectives of [the
Act] much as does a flat refusal." NLRB v. Katz, 369 U.S.
736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962); Lane v.
Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-
810 (Me. 1982).
In order to constitute a violation of S 964(l)(E),
three elements must be present. The public employer's
action must: (1) be unilateral, (2) be a change from a
well-established practice, and (3) involve one or more of
the mandatory subjects of bargaining. Bangor Fire Fighters
Association v. City of Bangor, MLRB No. 84-15, at 8
(Apr. 4, 1984). An employer's action is unilateral if it
is taken without prior notice to the bargaining agent of
the employees involved in order to afford said represen-
tative a reasonable opportunity to demand negotiations on
the contemplated change. City of Bangor v. A.F.S.C.M.E.,
Council 74, 449 A.2d 1129, 1135 (Me. 1982).
Teamsters Local Union No. 48 v. Eastport School Department, MLRB
No. 85-18, Slip op. at 4 (Oct. 10, 1985).
The record in this case establishes that the Employer, without
having given prior notice to the bargaining agent, reached agreement
with a prospective employee for the Tax Assessor position to change
the established salary for that classification. At that time, the Tax
Assessor position was included in a bargaining unit whose employees
had opted to be represented by the Union. The amount of a public
employee's salary is, of course, a mandatory subject of bargaining
encompassed within the term "wages" in Sec. 965(1)(C) of the Act.
Teamsters Local Union No. 48 v. Town of Jay, MLRB No. 80-02, Slip op.
-9-
at 4 (Dec. 26, 1979); Maine Teachers Ass'n/National Education Ass'n v.
State Board of Education, MLRB No. 86-14, Slip op. at 9 (Nov. 18,
1986). It is not relevant that the salary change at issue was
effected by the Employer through an agreement with a prospective
employee for the position affected. Such individual contracts of
employment may not be used to alter the scope of mandatory bargaining
nor to foreclose negotiations over the mandatory subjects of
bargaining. Coloumbe v. City of South Portland, MLRB No. 86-11, at
23-24 (Dec. 29, 1986). Since all of the elements required to
establish an unlawful unilateral change are present here, we hold that
the Employer violated 26 M.R.S.A. Sec. 965(1)(C) by unilaterally agreeing
with a prospective employee to increase the salary for the Tax
Assessor classification.
The failure to bargain in good faith. The thrust of the Union's
complaint in connection with this allegation is that, by engaging in a
particular pattern of conduct, the Employer has failed to negotiate in
good faith in violation of Sec. 965(1) of the Act. The Union's averment
is based on the following allegations concerning the Employer's conduct:
the violation of the 10-day rule, the Town Manager's failure to appear
at the first scheduled bargaining session, the fact that several
sessions were required to reach agreement on the negotiating ground
rules, the Town Manager's lack of sufficient bargaining authority, and
the Employer's piecemeal responses to the Union proposals.
The test which we apply in evaluating alleged violations of the
duty to bargain in good faith has been outlined as follows:
A bad faith bargaining charge requires that we examine
the totality of the charged party's conduct and decide
whether the party's actions during negotiations indicate
"a present intention to find a basis for agreement."
NLRB v. Montgomery Ward & Co., 133 F.2d 676, 686 (9th Cir.
1943); see also Caribou Schoo1 Department v. Caribou
Teachers Association, 402 A.2d 1279, 1282-1283 (Me. 1979).
Among the factors which we typically look to in making our
determination are whether the charged party met and nego-
tiated with the other party at reasonable times, observed
the groundrules, offered counterproposals, made compro-
mises, accepted the other party's positions, put tentative
agreements in writing, and participated in the dispute
resolution procedures. See, e.g., Fox Island Teachers
Association v. MSAD #8 Board of Directors, MLRB No. 81-28
-10-
(April 22, 1981); Sanford Highway Unit v. Town of Sanford,
MLRB No. 79-50 (April 5, 1979). When a party's conduct
evinces a sincere desire to reach an agreement, the party
has not bargained in bad faith in violation of 26 M.R.S.A.
Sec. 964(1)(E) unless its conduct fails to meet the minimum
statutory obligations or constitutes an outright refusal
to bargain.
Waterville Teachers Ass'n v. Waterville Board of Education, MLRB No.
82-11, Slip op. at 4 (Feb. 4, 1982). Applying this standard to the
facts before us, we hold that the Employer's overall conduct does not
fall to the level of constituting a failure to bargain in good faith.
Turning to the specific instances cited by the Union, we note at
the outset that a violation of the 10-day notice requirement constitu-
tes evidence of a failure to negotiate in good faith. Washburn
Teachers Ass'n, supra, at 8. Here, the probative value of the 10-day
notice violation for establishing a violation of the duty to bargain
is diminished because, upon being informed of the violation by the
Union, the Town Manager immediately offered to meet with the Union the
following day. It would normally be significant that the Town Manager
failed to appear for the scheduled session the next day; however, we
credit his explanation therefor. The Town Manager testified that he
had been working until 1:00 or 1:30 a.m. the previous night, that he
had overslept, and that he had promptly called the Union to reschedule
the bargaining session for the ensuing day. The parties did meet at
that time and began their negotiations. We note that, during several
months of bargaining thereafter, there is no complaint that the
Employer again failed to attend any scheduled bargaining session.
The fact that several sessions were required for the parties to
reach agreement on the negotiating ground rules could, in some cir-
cumstances, constitute evidence of bad faith. For instance, in
Sanford Fire Fighters Ass'n v. Sanford Fire Commission, MLRB No.
79-62, Slip op. at 6-7 (Dec. 5, 1979), a party's outright refusal to
even discuss the use of the same ground rules, which had controlled
the parties' successful negotiations for the preceding 10 years, was
held to be evidence of bad faith bargaining. A similar occurrence was
held to be evidence of bad faith in Southern Aroostook Teachers Ass'n
v. Southern Aroostook Community School Committee, MLRB Nos. 80-35 and
-11-
-40, Slip op. at 20 (Apr. 14, 1982). The facts in this case do not
support a finding of bad faith. The negotiations at issue are the
first between the parties; therefore, they have never before agreed to
any ground rules. Second, all but one of the proposed ground rules was
agreed to during the second bargaining session. Third, the parties
did gain consensus on the rules through their participation in
mediation. Such participation is itself evidence of bargaining in
good faith. Waterville Teachers Ass'n, supra, at 4.
The most serious of the Union's averments concerning the
Employer's alleged bad faith is that the Town Council failed to confer
sufficient bargaining authority upon its negotiator, the Town Manager.
The Union contended that the Town Manager was merely authorized to
gather the Union's proposals and to report thereon to the Town
Council. The minimum quantum of authority that a principal party must
confer upon its negotiator has been discussed as follows:
The authority of a party's negotiator is an important
element to consider when determining if a party has
bargained in good faith. If the negotiator lacks authority
to reach even tentative agreements, then bargaining often is
a sham since nothing of substance can be accomplished at the
bargaining sessions. Moreover, unwarranted delays often
result while the "negotiator" transmits the other party's
proposals to the decision maker, the decision maker con-
siders the proposals, and then relays its response through
its "negotiator" to the other party. A party which engages
in this type of procedure is not engaging in collective
bargaining as contemplated by 26 M.R.S.A. Sec. 965(1).
Union River Valley Teachers Ass'n v. Trenton School Committee, MLRB
Nos. 80-28 and -32, Slip op. at 3 (May 30, 1980); Waterville Teachers
Ass'n, supra, at 5-6. The Town Manager testified that the authority
which he received from the Town Council here was the same as that
which he had during the successful negotiations for successor collec-
tive bargaining agreements for the Town's police department employees.
In those negotiations, the Town Manager was authorized to reach ten-
tative agreements at the table, subject to the Town Council's reser-
vation of the right to ratify the final tentative collective
bargaining agreement. Inherent in his position as the Town's chief
executive officer is the Town Manager's knowledge of the Employer's
financial circumstances and political climate. Such knowledge might
-12-
have been adequate to allow him to reach tentative agreements which
would later be ratified by the Town Council; absent evidence that, in
practice, the Town Manager was unable to reach tentative agreements at
the table, we hold that the authority conferred upon the Employer's
negotiator was adequate.
In announcing our holding, we add a note of caution to the
Employer. Implicit in retention of the right to ratify is a principal
party' s right to reject the tentative collective bargaining agreement
negotiated at the table. Fox Island Teachers Ass'n v. M.S.A.D. No. 8
Board of Directors, MLRB No. 81-28, Slip op. at 6 (Apr. 22, 1981).
If, as was the testimony here, a negotiator fails to keep his prin-
cipal party informed of the progress of the negotiations, especially
concerning the concessions of both parties from their opening posi-
tions, a situation may be developing where final ratification is dif-
ficult, if not impossible, to achieve. Should the principal party in
such instances not only fail to ratify the final tentative agreement
but also unreasonably reject substantial elements of the agreement
reached at the table, the inevitable conclusion is that the party's
negotiator was not clothed with sufficient knowledge, guidelines, and
authority to reach tentative agreements or that the negotiator acted
beyond the scope of his authority. In either case, the principal
party is held to have bargained in bad faith. City of Westbrook v.
Westbrook Police Unit, MLRB No. 81-50, Slip op. at 6 (Sept. 24, 1981).
The Union's final averment is that the Employer's conduct, in
responding to the Union's comprehensive proposal a few articles at a
time, is evidence of bad faith bargaining. While a public employer's
failure or refusal to respond to the bargaining agent's proposals
constitutes a refusal to bargain, Waterville Teachers Ass'n, supra,
at 4, barring a ground rule to the contrary, we know of no requirement
that the Employer must present all of its counterproposals at the same
time. Here, the Town Manager explained that he is the only managerial
employee working together with the Employer's attorney on the nego-
tiations and that the number and complexity of the Union's demands
precluded the Employer from presenting a single comprehensive counter-
proposal to the Union. We credit the Town Manager's explanation, espe-
cially since the Employer has, within a reasonable period of time,
-13-
responded to each of the 41 contract articles proposed by the Union.
Reviewing its conduct as a whole, we have found that the Employer
violated the 10-day notice requirement, failed to attend the first
scheduled bargaining session, unilaterally changed the salary of a
bargaining unit position, and did not present a single comprehensive
counterproposal to the 41 articles proposed by the Union. While some
of these acts constitute separate violations of the Act, we conclude
that, together, these instances do not establish a pattern of
bargaining in bad faith. Our holding recognizes that the Employer
has: met and negotiated with the Union at reasonable times, par-
ticipated in mediation, reached agreement on the negotiating ground
rules, and presented counterproposals on each of the Union's substan-
tive demands.
The violation of Sec. 964(1)(A) of the Act. Section 964(1)(A) pro-
tects the free exercise of the rights guaranteed by the Act. We have
discussed the relationship between a party's violation of the duty to
bargain and this section of the Act as follows:
We have long held that a public employer violates [26
M.R.S.A. Sec. 964(l)(A) (1974)] if it engages in conduct
"which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act."
Teamsters Local Union No. 48 v. Town of Oakland, MLRB No.
78-30, Slip op. at 3 (Aug. 24, 1978); Maine State Employees
Ass'n v. State Develpment Office, MLRB No. 84-21, Slip op.
at 8-9 (July 6, 1984), aff'd, 499 A.2d 165, 169 (Me. 1985).
A public employer's unlawful changes in the mandatory sub-
jects of bargaining not only violate the statutory duty to
bargain but also inherently tend to interfere with the
employees' exercise of the bargaining rights guaranteed by
the Act. Teamsters Local Union No. 48 v. Town of Jay, MLRB
No. 80-08, Slip op. at 4 (Jan. 9, 1980); Lane v. Board ot
Directors of M.S.A'.D. No. 8, 447 A.2d 806, 810 (Me. 1982).
We conclude, therefore, that the Employer's unlawful unilat-
eral changes in this case violated 26 M.R.S.A. Sec. 964(1)(A).
Coulombe v. City of South Portland, supra, at 24-25. By failing to
honor the Union's 10-day notice and by unilaterally changing the
salary of a bargaining unit position, the Employer has interfered with
the right of the bargaining unit employees to engage in mandatory
collective bargaining. We hold, therefore, that those two acts
violated Sec. 964(1)(A) as well as Sec. 964(1)(E).
-14-
The alleged violation of 26 M.R.S.A. Sec. 964(1)(B). The Union
averred that the Employer's conduct violated 26 M.R.S.A. Sec. 964(1)(B)
(1974). That section of the Act bars public employers from
encouraging or discouraging membership in any employee organization"
through discriminatory action "in regard to hire or tenure of
employment or any term or condition of employment." The only action
by the Employer which affected a term or condition of employment for a
bargaining unit employee was the unilateral change in the Tax Assessor's
salary. Although such a salary adjustment could, in other circumstan-
ces, constitute unlawful discrimination, the Union presented no evi-
dence whatsoever tending to establish that reaction to protected
conduct was a motivating factor in the Employer's action. Holmes v.
Town of Old Orchard Beach, MLRB No. 82-14, Slip op. at 10-11
(Sept. 27, 1982) aff'd sub nom., Town of Old Orchard Beach v. Old
Orchard Beach Police Patrolmen's Ass'n, Nos. CV-82-613 and CV-83-481
(Me. Super. Ct., York Cty., Oct. 27, 1983); Maine State Employees
Ass'n v. State Development Office, supra, at 10, aff'd, 499 A.2d,at 168-169. We hold that the Employer's conduct did not violate
Sec. 964(1)(B) of the Act.
The alleged violation of 26 M.R.S.A. Sec. 964(1)(C). We have
repeatedly noted that this section of the Act "is directed at the evil
of too much financial or other support of, encouraging the formation
of, or actually participating in, the affairs of the union and thereby
potentially dominating it." Kittery Employees Ass'n v. Strahl, supra,
at 12. The Employer has neither participated in nor otherwise sup-
ported the activities of the Union; therefore, we hold that the
Employer has not violated Sec. 964(1)(C) of the Act.
Remedies: Having concluded that some of the Employer's actions
violated Sec. 964(1)(E) and (A) of the Act, we will order appropriate
remedies to effectuate the policies of the Act. 26 M.R.S.A. Sec. 968
(5)(C) (1974). In exercising our remedial authority, we seek "a
restoration of the situation, as nearly as possible, to that which
would have obtained" but for the commission of the prohibited prac-
tice. Sanford Hiqhway Unit v. Town of Sanford, 411 A.2d 1010, 1016
-15-
(Me. 1980). We will order the Employer to cease and desist from
failing to meet within 10 days after receipt of a written notice from
the Union requesting a meeting for collective bargaining purposes and
from making any unlawful unilateral changes in the wages, hours, or
working conditions of the employee classifications in the bargaining
units represented by the Union as their bargaining agent. Should it
wish to effect changes in the mandatory subjects of bargaining for the
aforesaid unit employees, the Employer should give ample notice of its
intentions to the Union, and, upon receipt of a written request from
the Union to negotiate thereon, bargain over such changes with the
Union.
In fashioning our order, we are aware that we have not ordered
the Employer to return the salary of the Tax Assessor classification
to its long-standing level. Although within the scope of our remedial
authority, Coulombe, supra, at 26; Teamsters Local Union No. 48 v.
Town of Jay, supra, at 6-7; we believe such an order to be unnecessary
here. The job applicant, with whom the Employer agreed to increase
the salary, has declined the offer of employment and the Employer now
takes the position that any salary adjustment for the bargaining unit
employees represented by the Union will have to be negotiated with the
Union.
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. Sec. 968(5) (1974 &
Pamph. 1986), it is hereby ORDERED:
That the Respondents, Eric Strahl and the Town of
Kittery, and their representatives and agents shall cease
and desist:
(1) From failing to meet within 10 days after receipt
of a written notice from the Union requesting a
meeting for collective bargaining purposes; and
(2) From making unlawful unilateral changes in the
wages, hours, or working conditions of the
-16-
employees in the bargaining units represented
by the Union as their bargaining agent.
Dated at Augusta, Maine, this 27th day of January, 1987.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26 /s/________________________________
M.R.S.A. Sec. 968(5)(F) (Pamph. Edward S. Godfrey
1986) to seek review of this Chairman
decision and order by
the Superior Court by filing
a complaint in accordance
with Rule 80B of the Rules /s/________________________________
of Civil Procedure within Thacher E. Turner
15 days of the date of this Employer Representative
decision.
/s/________________________________
George W. Lambertson
Employee Representative
-17-