STATE OF MAINE MAINE LABOR RELATIONS.8OARD
MLRB No. 78-A-11
[Issued: May 15, 1979]
_____________________________
)
TOWN OF JAY )
)
and ) DECISION AND ORDER
) ON OBJECTIONS TO AN ELECTION
TEAMSTERS LOCAL UNION NO. 48,)
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY WORKERS )
_____________________________)
This case comes to the Maine Labor Relations Board ("Board") by way of a
letter dated January 26, 1979 from Albert J. Beliveau, Jr., Esquire, on behalf
of the Town of Jay ("Town"). The letter objected to the holdlnq of a decerti-
fication/certificatlon election scheduled for February 1, 1979 on the ground
that there was an unsigned but valid collective bargaining agreement in effect
between the Town and the Jay Police Benevolent Association ("Association"),
which under 26 M.R.S.A. 967(2) barred the December 27, 1978 filing of
Teamsters Local Union No. 48's ("Local 48") decertification petition.
By letter dated January 31, 1979, Local 48 urged that an unsigned agree-
ment cannot bar the filing of a decertification petition. At the February 1,
1979 election the Association was decertified and Local 48 was certified as
the bargaining agent for a bargaining unit of Patrolmen and Dispatchers in the
Jay Police Department by a 4-0 vote.
A hearing on the Town's objections to the election was held in Augusta,
Maine on February 7, 1979, Chairman Edward H. Keith presiding, with Employer
Representative Paul D. Emery and Employee Representative Michael Schoonjans.
The parties agreed at the conclusion of the hearing to submit briefs arguing
the legal issues raised in the case. All briefs were filed by April 12, 1979,
and the Board proceeded to deliberate over the case at a conference held in
Augusta, Maine on May 15, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this case, and we conclude that this Board has jurisdiction to hear and
render a decision on the case pursuant to 26 M.R.S.A. 968(4).
FINDINGS OF FACT
Upon review of the entire record, the Board finds that:
1. In 1974, the Town of Jay, a public employer as defined in 26 M.R.S.A.
962(7), voluntarily recognized the Association as the bargaining
agent for a bargaining unit consisting of the Patrolmen and Dispatcher
job classifications in the Jay Police Department. Three collective
bargaining agreements subsequently were negotiated and executed by
the Town and the Association.
[-1-]
__________________________________________________________________________________
2. On April 4, 1977, representatives of the Town and the Association
executed a collective bargaining agreement (the "March 14, 1977
agreement"), the termination clause of which provides in pertinent
part that:
This agreement shall be effective as of the 14th day
of March and shall remain in full force and effect
until the 13th day of March, 1977.[fn]1 It shall auto-
matically be renewed from year to year thereafter unless
either party shall notify the other in writing 120 days
prior to the anniversary date that it desires to modify
this agreement. In the event that such a notice is given,
negotiations shall begin no later than 30 days prior to
the anniversary date; this agreement shall remain in full
force and be effective during the period of negotiations
and until notice of termination of this agreement is pro-
vided to the other party in the manner set forth in the
following paragraph.
In the event that either party desires to terminate this
agreement, written notice must be given to the other party
not less than ten (10) days prior to the desired termination
date which shall not be before the anniversary date set forth
in the preceding paragraph.
3. In December, 1977 or January, 1978, the Association gave notice
to the Town that it desired to modify the agreement. Negotiations
over a successor agreement commenced in January, 1978.
4. On or about April 3, 1978, the Town Manager had a list of items
prepared which the Town had offered in the course of negotiations
to the Association. The Chief Negotiator for the Association
accepted these items and requested that the Maine Association of
Police be allowed to draw up the collective bargaining contract
because the Association wished to make several language changes
or clarifications. The Town Manager agreed that the Maine
Association of Police would type the contract and indicated that
the proposed languaqe changes and clarifications were agreeable to
the Town. The Town subsequently implemented the items which it
offered on the April 3, 1978 list.
5. By June, 1978, the Association had not yet presented its draft of
the proposed agreement to the Town. The Town Manager consequently
had a proposed agreement prepared which incorporated the items which
the Town had offered but not the wording changes which the Associatior
sought. The proposed agreement was presented to the acting President
of the AssocIatIon, who stated that the Association would look the
proposal over and get back to the Town. The members of the Associa-
tion subsequently refused to agree to the proposed contract because
it did not contain the wording which the members were seeking.
6. In July, 1978, the Town Manager was contacted several times by Robert
W. Rush, Executive Director of the Maine Association of Police, who
stated that he was an agent for the Association, and that he wished
to negotiate the terms of a collective bargaining agreement for the
Association. The Town Manager responded that as far as he was con-
cerned, the Town had already negotiated an agreement with the Asso-
ciation and that there was no need for further negotiations.
__________
1 The termination clause in the copy of the agreement admitted as
Complainant's Exhibit No. 2 contains a typographical error. Testimony
at the hearing establishes that the phrase "the 13th day of March, 1977"
should read "the 13th day of March, 1978." The express term of the last
agreement executed by the Town and the Association thus was March 14,
1977 to March 13, 1978.
-2-
__________________________________________________________________________________
7. Several days after the August 1, 1978 meeting, a member of the
Association appeared in the Town Manager's office and indicated
that the Association would accept the Town's proposed agreement
if the wording in the agreement was clarified. The Town Clerk,
in accordance with instructions from the Town Manager, clarified
the wording in the member's copy and a Town copy of the agreement.
A majority of the members of the Association again subsequently
refused to agree to the proposed agreement because they disagreed
with the language of the agreement. The acting President of the
Association accordingly informed the Town Manager that the Associa-
tion would not sign the proposed agreement until there were addi-
tional language clarifications. Neither the Town nor the Associa-
tion have signed the proposed agreement.
8. On December 27, 1978, Local 48 filed a decertification petition
with the Board, seeking to decertify the Association as the
bargaining agent for the Police Department bargaining unit. By
letter dated January 8, 1979, the Board scheduled a decertification/
certification election on February 1, 1979 for the bargaining unit.
This letter was received by the Town on January 10, 1979. The
Association was decertified and Local 48 certified by a 4-0 vote
at the February 1, 1979 election.
9. The Town's letter objecting to the election, dated January 26,
1979, was received by the Board on January 29, 1979.
DECISION
The Town objects to the holding of the February 1, 1979 election on the
ground that Local 48 was barred from filing its decertification petition on
December 27, 1978 by a valid collective bargaining agreement within the meaning
of 26 M.R.S.A. 967(2). The Town argues that, because the Association failed
to give the required 120 day notice of its desire to modify the agreement, the
agreement with a term of March 14, 1977 to March 13, 1978 was by its terms auto-
matically renewed for at least one year, until March 13, 1979, thereby barring
the filing of the December 27, 1978 decertlficatlon petition. Alternatively,
the Town contends that agreement upon a valid collective bargaining agreement
was reached by the Town and the Association during the 1978 negotiations prior
to December 27, 1978. Section 967(2) of the MunicIpal Public Employees Labor
Relations Act, 26 M.R.S.A. 961, et seq. ("Act") provides in relevant part
that:
"Where there is a valId collective bargaining agreement
in effect, no question concerning . . . representation
may be raised except during the period not more than
90 nor less than 60 days prior to the expiration date
of the agreement."
The rationale underlying the "contract bar" rule found in Section 962(7) is
that the rule fosters stability by preserving as much time as possible during
the life of an agreement free from the disruption caused by organizational
activities, while providing a definite guide to employees and outside unions
as to the appropriate time to organize for and seek changes in representatives.
See Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 999-1000 (1958).
-3-
__________________________________________________________________________________
Local 48 argues that the Town's objections to the election must be dismissed
because the Town's January 26, 1977 letter objecting to the election fails to com-
ply with the procedural requirements found in Section 968(4) of the Act; because
the March 14, 1977-March 13, 1978 agreement was not automatically renewed and thus
cannot constitute a bar to the filing of the December 27, 1978 decertification
petition; and because an unsigned agreement is not a valid collective bargaining
agreement for purposes of barring the filing of a decertification petition.
After carefully considering this matter, we conclude for the reasons discussed
below that the Town's objections to the election must be dismissed. There was no
valid collective bargaining agreement in effect within the meaning of Section 967
(2) to bar the filing of the decertification petition on December 27, 1978. The
Association's notice in December, 1977 or January, 1978 forestalled the automatic
renewal of the March 14, 1977 agreement because the Town, by its subsequent conduct,
waived the untimeliness of this notice. An unsigned agreement or an oral agreement
does not constitute a valid collective bargaining agreement for purposes of barring
the filing of a decertification petition. Even if an unsigned or an oral agreement
could be a valid agreement under Section 967(2), it is clear that the Town and the
Association did not reach agreement during their 1978 negotiations.
1. Local 48's procedural argument. Local 48 argues that the Town's letter
objecting to the election must be dismissed because it does not comply with the
time requirements set forth in Section 968(4) of the Act. The Town's letter is
dated January 26, 1979 and was received by the Board on January 29, 1979. The
letter by the Executive Director's designee scheduling the election is dated Jan-
uary 8, 1979, and was received by the Town on January 10, 1979. The election was
held February 1, 1979. Thus, the Town's letter objecting to the election com-
plies neither with the 15 day appeal period nor the 5 working day objection
period provided in 26 M.R.S.A. 968(4) and in Rules 3.07 and 3.08 of the Board's
Rules and Procedures.
We have consistently dismissed letters objecting to elections when the letter
does not comply with the procedural requirements set forth in the Act and our
Rules. See, e.g., Teamsters Local 48 v. Town of Millinocket (Interim Decision and
Order), M.L.R.B. No. 79-40 (1979); Teamsters Local 48 and City of Ellsworth
(Determination of Objection) (M.L.R.B., Jan. 5, 1978) [No. 78-A-02]. However, in the instant
case Local 48's representative expressly waived all objections to the procedural
deficiencies surrounding the Town's letter at the commencement of the February 7,
1979 hearing. Given this waiver, it would not be fair to dismiss the Town's
letter on procedural grounds. We consequently will proceed to a determination of
the merits of the letter objecting to the election.
2. The Town's automatic renewal argument. The Town first argues that the
March 14, 1977-March 13, 1978 agreement was automatically renewed for at least
one year because the Association's notice of its desire to change the agreement
was not timely submitted. The termination clause in the March 14, 1977 agreement
provides that the agreement will remain in effect until March 13, 1978, and shall
be automatically renewed from year to year thereafter unless either party notifies
the other in writing 120 days prior to the anniversary date that it desires to
-4-
__________________________________________________________________________________
modify the agreement. Thus, to be timely, a notice of desire to modify the
agreement would have to be presented by approximately November 13, 1978. In
contrast, the Association's notice was not submitted to the Town until some
time in December, 1977 or January, 1978.
Had the Town and the Association done nothing subsequent to the Association's
submission of its notice, we likely would agree with the Town's contention that
the untimely notice did not forestall automatic renewal of the agreement. Such
automatic renewal would mean that the agreement could constitute a bar to the
filing of a decertification petition for up to a period totalling three years,
except for the 30 day "window period" occurring 90 to 60 days prior to the expira-
tion of the third year. See 26 M.R.S.A. 965(1)(D) and 967(2). However, the
Town waived the untimeliness of the Association's notice by entering into negotia-
tions subsequent to receipt of the notice. Because the untimeliness of the notice
was waived, the notice forestalled automatic renewal of the March 14, 1977 agree-
ment.
The Town's waiver of the untimeliness of the Association's notice is clear.
After the Association submitted the notice, the parties negotiated from at least
January through April, 1978, over a proposed new agreement, and continued after
April to discuss if not negotiate the new proposals. Significantly, the Town.
proposed to change many of the substantive terms of the March 14, 1977 agreement,
and even went so far as to implement, apparently retroactive to March 14, 1978,
the new terms which it proposed when the Town Manager believed that these new
terms had been accepted. We cannot understand why the Town would go to such
effort and expense if it believed that the March 14, 1977 agreement had been
automatically renewed because the Association's notice was untimely.
We are aware that there exists National Labor Relations Board ("N.L.R.B.")
precedent to the effect that a party does not waive the untimeliness of a notice
by subsequently entering into negotiations, when there is no evidence that the
parties terminated their old agreement. See Moore Drop Forging Co., 168 N.L.R.B.
984 (1967). While we generally find N.L.R.B. precedent persuasive, we are of
course not bound by such precedent when making our determinations. In any event,
there exists ample evidence in the instant case that certain provisions of the
March 14, 1977 agreement were terminated. As previously noted, the Town imple-
mented its proposals in 1978 when the Town believed that the proposals had been
accepted by the Association. The effect of this implementation was to terminate
the corresponding provisions in the March 14, 1977 agreement. Thus, in addition
to the evidence that the Town and the Association entered into negotiations for a
new agreement, there is evidence that at least parts of the March 14, 1977 agree-
ment were terminated.
Since the March 14, 1977 agreement was not automatically renewed, it was by
operation of its termination clause extended during the period of negotiations
over the new agreement. During this period, the parties were free to terminate
the agreement at any time by giving the other party 10 days' written notice
prior to the desired termination date. It is a well-settled principle of law
that the extension of an agreement pending modification of the agreement or nego-
tiation and execution of a new agreement does not bar the filing of a decertification
-5-
__________________________________________________________________________________
petition subsequent to the expiration date expressed in the agreement. See, e.g.,
Metropolitan Life Insurance Co., 172 N.L.R.B. 1257 (1968); John Liber & Co., 123
N.L.R.B. 1174, 1175 (1959); In re Petition for Decertification, Biddeford Police
Department (Hearing Examiner's Decision) (M.L.R.B., June 8, 1978) [No. 78-E-01].
The rationale for this rule of law was expressed as follows In Pacific Coast
Association of Pulp and Paper Manufacturers, 121 N.L.R.8. 990, 994 (1958):
"We believe that our contract-bar policy should rest on the funda-
mental premise that the postponement of employees' opportunity
to select representatives can be justified only if the statutory
objective of encouraging and protecting industrial stability is
effectuated thereby. That objective is served where contracting
parties have entered into mutual and binding commitments thereby
reasonably insuring that for the duration of the agreement neither
party will disrupt the bargaining relationship by unilaterally
attempting to force changes in the conditions of employment upon
the other. But to grant the protection of our contract-bar policy
to parties which have not so committed themselves - - either party
being free at all times to dissolve the contract and exert economic
pressure upon the other in support of bargaining demands - - would
be to abridge the statutory right of employees to select representa-
tives without concomitant justification."
The parties in the instant case were free at all times, once the March 14,
1977 agreement had been extended, to terminate the agreement. Some provisions
of the agreement were terminated when the Town implemented its superseding pro-
posals. We accordingly conclude that the extention of the March 14, 1977 agree-
ment during negotiations for a successor agreement did not bar the December 27,
1978 filing of the petition for decertification.
3. The Town's argument regarding the unsigned agreement. The Town alterna-
tively argues that the Town and the Association reached agreement during the 1978
negotiations on a valid collective bargaining contract, which operated to bar the
December 27, 1978 decertiflcatlon petition. As evidence of this agreement, the
Town, inter alla, introduced as an exhibit a document purporting to cover the terms
and conditions of employment of the members of the bargaining unit. This document
is signed neither by representatives of the Town nor the Association.
We cannot agree that the unsigned document bars the filing of the decertifl-
cation petition. It is well established
". . . that oral agreements cannot serve as a bar. It is equally
well established that contracts not signed before the filing of
a petition cannot serve as a bar . . . [A] contract to constitute
a bar must be signed by all the parties before a petition is filed
and . . . unless a contract signed by all the parties precedes a
petition, it will not bar a petition even though the parties con-
sider it properly concluded and put into effect some or all of its
provisions." (Footnotes omitted).
Appalachian Shale Products Co., 121 N.L.R.B. 1160, ll61-1162 (1958); see also Lane
Construction Corp., 222 N.L.R.B. 1224 (1976); Cleveland Pneumatic Tool Co., 143
N.L.R.B. 1165 (1963).
We believe that the rule that unsigned or oral agreements are not valid
collective bargaining agreements for purposes of barring decertification petitions
is well considered, and we hereby adopt it.[fn]2 The rule, which has proved satisfactory
__________
2 We do not intimate that an unsigned or oral agreement could not be a valid
collective bargaining agreement for some purpose other than barring the
filing of a decertification petition.
-6-
__________________________________________________________________________________
to the N.L.R.B. for a number of years, reduces the opportunity for fraud on the
part of unscrupulous parties who wish to abridge the right of employees to select
their bargaining representative, and also has the salutary effect of relieving
the Board of the task of attempting to determine whether there has been a meeting
of minds, an exercise in which the Board has no special expertise. In addition,
the rule should be easily understood and applied by public employers, public employ-
ees, and public employee organizations. Any unsigned or oral agreement which the
Town and the Association may have reached during the 1978 negotiations consequently
could not bar the filing of Local 48's decertification petition.
We also note that even if an unsigned agreement could bar the filing of a de-
certification petition, there was no agreement reached during the 1978 negotiations
between the Town and the Association. The record plainly shows that the reason why
the Association did not sign the proposed agreement drafted by the Town was that the
Association did not agree with the language of the proposal. It thus is apparent
in any event that the 1978 negotiations produced no agreement which could bar the
December 27, 1978 filing of the decertification petition.
ORDER
Based on the foregoing findings of fact and discussion, and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
968, it is ORDERED:
1. That the objections raised in the Town of Jay's January 26, 1979
letter are DISMISSED.
2. That the certification of the results of the February 1, 1979
decertification/certification election is AFFIRMED. Local 48
is the certified bargaining agent for the bargaining unit com-
posed of the Patrolmen and Dispatcher job classifications in the
Jay Police Department.
Dated at Augusta, Maine this 15th day of May, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________________
Edward H. Keith
Chairman
/s/________________________________
Paul D. Emery
Employer Representative
/s/________________________________
Michael Schoonjans
Employee Representative
-7-
__________________________________________________________________________________