STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 05-E-01
Issued: November 5, 2004
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In Re: )
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REVOCATION OF CERTIFICATION, ) EXECUTIVE DIRECTOR'S DECISION
KENNEBEC COUNTY SUPERVISORY )
BARGAINING UNIT )
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PROCEDURAL AND FACTUAL HISTORY
By letter dated September 29, 2004, Alan R. Churchill,
Business Agent for Teamsters Local Union No. 340 ("Union" or
"Teamsters"), advised the Maine Labor Relations Board ("Board")
that the Kennebec County Supervisory Bargaining Unit had been
inactive since 1990 and that no collective bargaining agreement
was in effect for the unit. Mr. Churchill further advised that
the Union had no outstanding financial obligations relating to
election costs, grievance/arbitration or impasse resolution
proceedings. The Union sought to either disclaim representing
the unit pursuant to Chap. 11, 81 of the Board Rules or to have
their certification as bargaining agent revoked pursuant to Chap.
11, 82 of the Board Rules.
A review of Board records revealed the following information
about this unit. The bargaining unit was created by Agreement on
Appropriate Bargaining Unit signed on October 15, 1981. At that
time, the unit consisted of the following positions: Deputy
Registrar of Probate, Deputy Register of Deeds, Deputy Treasurer,
and Assistant Jail Administrator/Classification Officer. The
Teamsters were certified as the bargaining agent for this unit
following election, on November 16, 1981. Mediation Status
Reports filed with the Board indicated that the parties
participated in mediation at various times from 1982 through
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1990. However, no collective bargaining agreements negotiated by
the parties for this unit were filed with the Board. The last
Board record was a Mediation Status Report dated June 23, 1990.
The report indicated that issues had been resolved in all four
Kennebec County units (including this unit), with tentative
agreements for two-year contracts subject to ratification.
Since Board records indicated that there had been no
collective bargaining activity in the unit in the past five
years, the Board elected to process the request as a revocation
of certification in accordance with the requirements of Chap. 11,
82 of the Board Rules. The attorney examiner (acting as
designee of the executive director) requested that the Kennebec
County Commissioners ("County") and the Union review their
records and supply to the Board any documents that demonstrated
the most recent existence of a collective bargaining relationship
for this unit. Both parties supplied to the Board a collective
bargaining agreement for the unit, signed on September 15, 1987,
and effective from January 1, 1987, to December 31, 1989. The
County also supplied a three-page document which appeared to be
an amendment to the collective bargaining agreement signed on
July 26, 1990, for the County and on July 30, 1990, for the
Union.
The Board issued a Notice of Revocation of Certification on
October 8, 2004, that proposed to revoke the certification of the
Union as bargaining agent for the unit, in the absence of any
collective bargaining activity regarding the unit for five or more
years. The Notice also stated that any party (including any
affected employee) wishing to object to the proposed revocation of
certification should contact the Board on or before October 25,
2004, and provide evidence in support of the objection. The Board
received one objection to the revocation of certification from
Jane Cook. Her written objection was received on October 19,
2004. A copy of this objection is attached to this decision.
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The present decision is being issued to address this objection,
and to make a determination whether the certification of the Union
as bargaining agent should be revoked.
JURISDICTION
The jurisdiction of the executive director or his designee
to resolve issues related to the determination of the bargaining
agent and the revocation of bargaining agent certification lies
in 26 M.R.S.A. 967 and Chap. 11, 81 and 82 of the Board
Rules. All subsequent statutory references are to 26 Maine
Revised Statutes Annotated.
DISCUSSION
Section 967(2) of the Municipal Public Employees Labor
Relations Law ("MPELRL") provides, in part, that:
The bargaining agent certified as representing a
bargaining unit shall be recognized by the public
employer as the sole and exclusive bargaining agent for
all of the employees in the bargaining unit, unless and
until a decertification election by secret ballot shall
be held and the bargaining agent declared by the
executive director of the board as not representing a
majority of the unit.
This provision contemplates that in an active bargaining unit
with on-going collective bargaining activity, the certified
bargaining agent will continue to function as the unit's agent
unless and until they are decertified. In some circumstances,
and for a variety of reasons, a bargaining unit ceases to exist
as originally created and/or collective bargaining activity comes
to an end. Due to this, the Board Rules designate two ways in
which the status of a bargaining agent and a bargaining unit may
be clarified. Under Chap. 11, 81 of the Board Rules, the
bargaining agent may disclaim interest in representing a
bargaining unit if there is no collective bargaining agreement in
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effect and the bargaining agent has no outstanding financial
obligations related to election costs, grievance/arbitration or
impasse resolution proceedings. The Rules make clear that only
the bargaining agent (not the employer, or an employee) may seek
to disclaim interest in representing the unit. Under Chap. 11,
82 of the Board Rules, the executive director may revoke the
certification of a bargaining agent that has been inactive for
five or more years if there is no evidence of any activity in the
Board's records and no evidence of activity is received by the
Board following notice. The Rules do not limit who may petition
for a revocation of certification, but contemplate that the Board
may act on its own motion.
In the present matter, the Union sought to either disclaim
representing the bargaining unit or to have the certification
revoked by the Board. Either disclaimer or revocation would be
an appropriate option here. However, the disclaimer option does
not depend on any period of time of collective bargaining
inactivity. The Rules require only that a collective bargaining
agreement not be in effect before a disclaimer in granted.[fn]1
Because there has been no discernible collective bargaining
activity in the Kennebec County supervisory unit in such a
significant period of time, the revocation of certification is
the most logical choice to address the Union's request.
Chap. 11, 82 provides in relevant part:
1. Inactive Bargaining Unit. If the Board's records
indicate that a certified or recognized bargaining
agent has been inactive for a period of five or more
years, the Board may solicit information from the
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1 Indeed, in recent years, the Board has handled requests for
disclaimer from bargaining agents prior to the expiration of the
collective bargaining agreement. The parties and the employees have
been placed on notice at the time of the request, although a
disclaimer has never been granted until after the expiration of the
agreement.
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parties on the continued existence of a collective
bargaining relationship in that bargaining unit.
The Board may request a copy of any document
demonstrating that a collective bargaining
relationship exists or existed during the previous
five years or that the bargaining agent submitted
a written request to meet and negotiate during
that same time period. If any evidence is
presented that indicates that the bargaining agent
has been active during the previous five years,
the Board may not revoke certification under this
section. Evidence should be liberally viewed in
favor of continued certification.
2. Posting of Notice. If the Board is not able to find
any evidence that the bargaining agent has been active
in the past five years by contacting the employer, the
bargaining agent of record, or any likely successors,
the Board must issue a Notice to Employees concerning
the potential revocation of bargaining agent
certification before any action may be taken. The
notice must state the name of the certified or
recognized bargaining agent, the nature and date of the
most recent collective bargaining activity known to the
Board, and the time period during which objections to
the Board revocation of certification must be filed.
This posting period must be at least 15 calendar days
and, for school units, may not include school vacation
periods.
3. Objections. Any party objecting to the Board
revocation of certification must contact the Board
within the time period specified in the notice and
provide evidence in support of its position within a
reasonable time thereafter. The collective bargaining
activity serving as the basis of the objection must
have occurred prior to the date of the Notice issued by
the Board.
(emphasis supplied)
The Rules provide that a revocation may be granted when there is
no evidence of collective bargaining activity for five or more
years prior to the request for revocation. Any objecting party
must provide "evidence in support of its position" and the
"collective bargaining activity serving as the basis of the
objection" must have occurred prior to the notice advising
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employees of the request for revocation. The Rules clearly
contemplate, therefore, that an objecting party supply evidence
of collective bargaining activity that occurred within the
previous five years.
A review of the Board records and the evidence supplied by
the parties establish that there was a collective bargaining
agreement in effect for this unit from January 1, 1987, to
December 31, 1989. A Mediation Status Report from 1990 stated
that a tentative agreement for a successor two-year agreement was
reached. The parties supplied another document signed in 1990
which appeared to amend the previous collective bargaining
agreement on articles pertaining to health insurance, employee
benefits, vacations, sick leave and wages. This amending
document was likely the successor two-year agreement as described
by the mediator. The amending document does not indicate
effective dates. However, 965(1)(D) provides that "collective
bargaining" means the mutual obligation of the public employer
and the bargaining agent to
Execute in writing any agreements arrived at, the term
of any such agreement to be subject to negotiation but
shall not exceed three years.
Therefore, any successor agreement to the 1987-1989 agreement
could have been effective no longer than three years or, at the
longest, through December 31, 1992. There is no evidence of
collective bargaining activity since the signing of the amending
document in 1990. Ms. Cook, as the objecting party, has produced
no evidence of collective bargaining activity since that time.
In her objection, Ms. Cook does not claim that there has
been any recent collective bargaining activity. Her objection
seems to relate in large part to her attempts to adjust her own
salary with the employer and, as she identified, "pending issues"
surrounding the collective bargaining agreement, such as salary
adjustment and health insurance upon retirement. For there to be
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"pending issues" about the agreement, there must be some valid
argument that the agreement is still effective. The executive
director knows of no circumstances under which a collective
bargaining agreement with a last effective date of more than 12
years ago, and with no intervening collective bargaining
activity, could still be in effect and enforceable. It is true
that the obligation of parties to bargain in good faith includes
the obligation to maintain the status quo following the
expiration of a collective bargaining agreement. Lane v. Board
of Directors SAD No. 8, 447 A.2d 806, 809-810 (Me. 1982).
Arising as this duty does from the duty to bargain in good faith,
the obligation to maintain the status quo contemplates an on-
going collective bargaining relationship--the parties actively
negotiating a successor agreement. While the Board has not been
called upon to determine how long the status quo must be
maintained in the face of a complete absence of collective
bargaining activity, the MPELRL gives some guidance. Section
965(1)(E) provides that whenever wages or other matters requiring
appropriation of money by a county are included as a matter of
collective bargaining, it is the obligation of the bargaining
agent to serve written notice of request for collective
bargaining on the public employer at least 120 days before the
conclusion of the current fiscal operating budget. When this
bargaining unit's agreement expired and no notice was sent
requesting further collective bargaining within the 120-day
period, this was a significant indication that a successor
agreement was not being negotiated. In addition, 965(1)(D)
provides that collective bargaining agreements shall not exceed
three years. As there was no evidence of any collective
bargaining activity following the final collective bargaining
agreement, the status quo could only continue for a reasonable
period of time--a period that certainly could not be the 12-year
hiatus found here.
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While Ms. Cook's objection seems to relate only to whether
the last collective bargaining agreement remains in effect and
enforceable, other concerns also arise when such a length of time
occurs with no collective bargaining activity. In Council No.
74, AFSCME and City of Augusta, No. 81-A-03 (MLRB Sept. 25,
1981), aff'd, No. CV-81-477 (Kennebec Sup. Ct., March 30, 1982),
for instance, the Board found that when there was no collective
bargaining activity for ten years following the certification of
the bargaining agent, the City had a good faith doubt as to the
continuing majority status of the union and was not obligated to
bargain with the union. In that case, the Board ordered that a
new bargaining unit be determined and that an election be held
for the unit after the employer petitioned for the election.
While the Council No. 74, AFSCME case does not address the issue
of revocation of certification per se,[fn]2 it does show that when
such a significant period of time has passed, it is often
difficult to determine the parameters of the bargaining unit and
whether a majority of employees in the unit continue to wish to
be represented by the bargaining agent. These concerns further
support the decision to revoke certification here.
In conclusion, even construing the evidence liberally as
directed by the Board Rules, the last collective bargaining
agreement for this unit was in effect no later than December 31,
1992. Even if the employer were required to maintain the status
quo after the expiration of this agreement, this period would
only be for a reasonable period of time as part of on-going
negotiations for a successor contract. As 12 years have passed
since the last possible effective date of the agreement, with no
evidence of further collective bargaining activity, this is an
appropriate matter in which to revoke the certification of the
bargaining agent for this unit.
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2 Chap. 11, 82 was newly added to the Board Rules effective
January, 2001.
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CONCLUSION
In accordance with Board Rule Chap. 11, 82, the November 16,
1981, certification of Teamsters Local No. 340 is revoked for the
Kennebec County Supervisory Bargaining Unit. The Union will not be
permitted to file, or to intervene in, a petition to represent the
employees in this unit for a period of one year from the date of
issuance of this revocation.
Dated at Augusta, Maine, this 5th day of November, 2004.
MAINE LABOR RELATIONS BOARD
/s/_______________________________
Dyan M. Dyttmer
Designee of the Executive Director
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4), to appeal this report to the Maine Labor
Relations Board. To initiate such an appeal, the party seeking
appellate review must file a notice of appeal with the Board within
fifteen (15) days of the date of issuance of this report. See
Chapter 10 and Chap. 11 30 of the Board Rules.
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