Case No. 91-07
                                        Issued:  December 28, 1990

                   Complainant,    )
             v.                    )     DECISION AND ORDER
TOWN OF LINCOLN,                   )
                   Respondent.     )

     On October 1, 1990, Teamsters Local Union No. 340 ("Union") filed a prohi-
bited practice complaint with the Maine Labor Relations Board ("Board") alleging
that the Town of Lincoln ("Town") has violated section 964(1)(E) of the Munici-
pal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.  964(1)(E)
(1988), by refusing to accept the insurance article in the collective bargaining
agreement that had been negotiated between the parties.  By amendment at the
time of the prehearing conference, the Union more specifically alleges that the
Town's negotiator was directed by the Town Council to offer the Union a 4.5 per-
cent wage increase and maintenance of full health insurance; consequently, the
Union alleges, when the Union accepted the proposal, the agreement was a binding
agreement and not a tentative one. The Town denies the allegations.

     On November 26, 1990, Board Alternate Chair Pamela D. Chute convened a pre-
hearing conference in this matter.  Her November 28th Prehearing Conference
Memorandum and Order is incorporated in and made a part of this decision and

     Chair Peter T. Dawson presided at the evidentiary hearing on December 3,
1990, accompanied by Employer Representative Thacher E. Turner and Employee
Representative George W. Lambertson.  Carl Guignard represented the Union, and
Richard H. Broderick, Esquire, represented the Town.  The parties were given
full opportunity to examine and cross-examine witnesses, to introduce documen-


tary evidence and to make oral argument. At the close of the Union's case,
the Town moved for dismissal of the complaint.  Upon full consideration of the
evidence presented by the complainant, the motion was granted and the hearing
was adjourned.


     The Union is the bargaining agent, within the meaning of 26 M.R.S.A.  962(2)
(1988), for the patrolmen's and sergeants' bargaining units of the Lincoln
Police Department.  The Town is the public employer of the employees in those
units, within the meaning of 26 M.R.S.A.  962(7) (Supp. 1990).  The jurisdic-
tion of the Board to hear this case and to render a decision and order lies
in 26 M.R.S.A.  968(5) (1988).

                               FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

     1.   The collective bargaining agreement for the two units in the Lincoln
Police Department expired on June 30, 1990.  In negotiations for a successor
agreement, the negotiating team for the Union included Richard Mayo, who was
then the shop steward for the patrolmen's unit.  Richard Broderick, Esquire, and
the town manager negotiated on behalf of the Town (the interim town manager par-
ticipated in the last bargaining session on behalf of the Town).

     2.   At the outset of negotiations, no discussion occurred between the par-
ties regarding the right of principals to ratify any agreement that might be

     3.   By letter dated June 6, 1990, negotiator Broderick provided Union busi-
ness agent Carl Guignard with a summary of the Town's response to the Union's
proposals, consistent with negotiations between the parties that had occurred on
May 31, 1990.  The Town rejected the Union's proposal for continued payment of all
health insurance premiums and the addition of optical and dental benefits; the
Town proposed that employees be required to pay any health insurance premium
increases that might occur.  The Union rejected the Town's proposal.

     4.   On July 23, 1990, the interim town manager and representatives of the
Union signed a successor agreement covering a bargaining unit of public works


employees.  That agreement included a wage increase of 4.5 percent per year and
continued payment by the Town of 100 percent of the costs of health insurance.
In the past, the town manager has also signed police department collective
bargaining agreements on behalf of the Town.

     5.   By letter dated July 24, 1990, the interim town manager confirmed August
7, 1990, as the date for the next negotiation session for the police department
contract.  She stated in her letter that "I am in hopes that we can finish these
negotiations at this time."

     6.   In the final negotiating session for the police department contract,
on or about August 7, 1990, the Town offered the Union the same wage and
health insurance terms as had been agreed to for public works employees --
a wage increase of 4.5 percent per year, and continued payment by the Town of 100
percent of the costs of health insurance.  The Union accepted the Town's propo-
sal, subject to approval by its membership.  By letter of the same date, in
which the negotiator Broderick summarized the agreement that had been reached,
the Union's business agent, Carl Guignard, was asked to prepare a contract and
forward it to Broderick's office "for the Council's approval."

     7.   Prior to the Union's acceptance of the Town's offer, shop steward Mayo
discussed with and received approval from his Union membership to accept a 4.5
percent-per-year wage increase in exchange for continued payment by the Town
of 100 percent of the costs of health insurance.

     8.   As a member of the bargaining team for the police department units,
shop steward Mayo believed that approval of the negotiated tentative agreement
by the Town Council was "just a formality," because during negotiations, the
Town's negotiators stated that they had been told by the Town Council what they
could offer the Union regarding a wage increase.  This was also Mayo's view of
Town Council approval of past contracts for which Mayo had participated in nego-
tiations.  Each of those contracts was subject to approval by the Council and
by Union membership.

     9.   On or about August 29, 1990, the Town Council reviewed the agreement
and rejected Article 20, the article covering health insurance.


     At the close of Union's presentation of evidence at hearing, the Town moved
for dismissal of the complaint on the ground that the Union had not met its bur-
den to establish a prima facie case -- that insufficient evidence had been pre-
sented to support a judgment for the Union.  We agree.

     In alleging that the Town has violated section 964(1)(E) of the MPELRL, the
Union makes the following points:  1) that in the past, the town manager has
signed police department contracts on behalf of the Town; 2) that the interim
town manager, who signed the public works contract on behalf of the Town, par-
ticipated in the last negotiating session for the police department contract;
3) that in a letter confirming the date for the August 7th negotiation session,
the interim town manager stated that she was "in hopes that we can finish these
negotiations at this time"; 4) that comments by Town negotiators at the
bargaining table regarding guidelines from the Town Council for negotiations on
a salary increase reasonably led the Union to believe that any offer made by
the Town's negotiators was authorized by the Town Council; 5) that at the time
the Town's negotiator made its final offer to the Union, the Town Council had
already approved a separate agreement for the public works employees, which
agreement contained the same wage and insurance provisions as were contained in
the police department agreement; and 6) that the parties had set no ground rules
regarding the right to ratify any agreement that might be reached.  We will
address each point.

     First, neither the interim town manager's signature on the public works
contract, nor her participation in the last negotiating session for the police
contract, nor her hope that that session would be the last one, is persuasive.
Although it is the principal that is ultimately responsible for abiding by the
collective bargaining agreement, it is not unusual for a town or city manager,
a department head such as a police chief, or some other administrator to sit at
the bargaining table and then to sign the collective bargaining agreement once
it has been ratified by the principal.

     Second, while the Town's negotiators apparently had been given guidelines on
what they could offer in the way of a wage increase, there was no evidence to
indicate that the same was true for other provisions in the contract -- or for
the insurance provision in particular, which is the provision that the Town


Council rejected.  Consequently, there is no evidence that the Town Council
delegated its authority to enter into a binding agreement on this issue.
Arundel Teachers Association v. Arundel School Committee, No. 73-08, slip op. at
14-15 (Pe.L.R.B. May 22, 1973); Biddeford Unit, Council 74, AFSCME v. City of
Biddeford, No. 75-33, slip op. at 2 (Pe.L.R.B. Dec. 10, 1975).

     Third, we know of nothing that obligates the Town to agree to the same terms
and conditions in each of the contracts it negotiates with separate bargaining
units, although such consistency undoubtedly promotes labor harmony.

     Finally, the fact that there was no ground rule regarding ratification is
not convincing, particularly in the circumstances of this case.1  While the
Board has stated previously that "absent a ground rule governing the binding
effect of any agreement reached by negotiators, we find a strong presumption
that the tentative agreement is binding on the parties," Westbrook Police Unit,
v. City of Westbrook, No. 78-25, slip op. at 4 (Me.L.R.B. Sept. 5, 1978), the
cases cited for that proposition all refer to the withdrawal of individual ten-
tative agreements during the negotiation process, and not to the final ten-
tative agreement itself.  (The reason for such a rule in that context is
obvious:  if parties could continually back out of individual tentative agree-
ments throughout negotiations, negotiations would never end.)  In addition, in
Westbrook itself, the Board found that the City Council had not delegated its
authority to reach a binding agreement, even though the bargaining team had been
authorized to reach an agreement with the union if the cost of the agreement did
not exceed a certain level.

     Even if a presumption did exist that a final agreement is binding in the
absence of a ratification ground rule, that presumption would be overcome by the
facts in the matter before us. Throughout his testimony, shop steward Mayo
referred to the negotiated agreement as "tentative," and he acknowledged that it
was subject to approval by the Town Council as well as his own union membership.


     1In the past we have strongly urged parties to establish ground rules
in order to avoid unnecessary misunderstandings, and we do so here.


He stated, however, that he believed approval was "only a formality," and
pointed to the Union's meeting with its members prior to its own decision to
accept the Town's final offer on August 7th.

     While we think that the Union's policy of checking with its membership on
specific, controversial items before making a tentative agreement is a sound
one, and to be encouraged, there is no requirement that either party do so.
More important, as we have stated in prior decisions, "[t]he power to ratify
necessarily implies the power to reject, otherwise final ratification would be
meaningless."  Biddeford, slip op. at 3; Fox Island Teachers Association v.
MSAD No. 8 Board of Directors, No. 81-28, slip op. at 6, 4 NPER 20-12020
(Me.L.R.B. April 22, 1981); Kittery Employees Association v. Strahl, No. 86-23,
slip op. at 13, 9 NPER ME-18010 (Me.L.R.B. Jan. 27, 1987).

     In sum, it appears that in spite of its knowledge that the negotiated
agreement was subject to approval by the principals of both parties, the Union
made the assumption, based on a series of events, that in fact the agreement
would be approved by the Town Council, and it was not.  While we can understand
why the Union might make that assumption, we do not believe that those events
should have so misled the Union, that is was entitled to assume that ratifica-
tion was no longer necessary.2  In so finding, we do not mean to suggest that
consistent rejection of tentative agreements would be good faith bargaining; in
the circumstances of this case, however, we find that no violation of the
requirement to bargain in good faith has occurred.


     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

     2In fact, the shop steward has made the assumption the final tentative
agreements are binding for previous agreements as well.  This is apparently the
first time that the Town Council has not ratified as expected.


provisions of 26 M.R.S.A.  968(5) (1988), it is hereby ORDERED:

         That the Town's motion for dismissal of the Union's complaint
         is granted.

Dated at Augusta, Maine, this 28th day of December, 1990.

                                       MAINE LABOR RELATIONS BOARD

                                       Peter T. Dawson

                                        Thacher E. Turner
                                        Employer Representative

                                        George W. Lambertson
                                        Employee Representative

     The parties are advised of their right pursuant to 26 M.R.S.A.  968(5)(F)
(1988) to seek review of this decision and order by the Superior Court, by
filing a complaint in accordance with Rule 80C of the Maine Rules of Civil
Procedure within 15 days of the date of issuance of this decision.