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