STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 04-04
Issued: October 8, 2004
___________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
SEIU LOCAL 1989, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
YORK COUNTY, )
)
Respondent. )
___________________________________)
The Maine State Employees Association ("MSEA" or "Union")
filed this prohibited practice complaint on July 7, 2003. The
complaint alleges that York County refused to bargain in good
faith with the Union in violation of 964(1)(A) and (1)(E) of the
Municipal Public Employees Labor Relations Law ("MPELRL"), 26
M.R.S.A. 961 et seq., by refusing to meet within 10 days of the
Union's request to bargain, by refusing to bargain over mandatory
subjects of bargaining as requested, and by generally repudiating
the collective bargaining obligations with respect to employees
of the York County Probate Office. Timothy Belcher, Esq., repre-
sented the Union and Timothy O'Brien, Esq., represented York
County.
On October 8, 2003, Chair Jared des Rosiers conducted a pre-
hearing conference and heard oral argument on the County's motion
to defer to arbitration. The motion to defer was denied in the
Prehearing Conference Memorandum and Order dated October 23,
2003, and that denial was not appealed. The full Board, consist-
ing of Chair des Rosiers, Alternate Employer Representative Edwin
S. Hamm and Alternate Employee Representative Wayne W. Whitney,
met for the evidentiary hearing on March 4 and March 23, 2004.
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The original deadline for the post-hearing briefs was extended by
joint request of the parties due to the anticipated release of
the Maine Law Court's decision in a related matter. The briefs
and reply briefs were all received by June 2, 2004. The Board
met to deliberate this case on June 8, 2004.
FACTS
1. The executive body for York County is the five-member Board
of County Commissioners, with Mr. William Layman serving as
the Chair. All of the County Commissioners are elected
positions. The day-to-day operation of county government is
overseen by the County Manager, Mr. David Adjutant.
2. The Maine State Employees Association (MSEA) represents a
bargaining unit of county government employees performing
clerical and support functions in various county depart-
ments, including the Probate Office, the District Attorney's
Office, the Deeds Office, the Treasurer's Office and the
Sheriff's Office. There are about 30 different job
classifications in the bargaining unit.
3. Ms. Jennifer Kern was elected President of the local union
in the fall of 2002. Mr. Ron Gouin was the Shop Steward for
the unit until the beginning of 2004. Ms. Leslie Manning is
a Field Service Representative with MSEA and is responsible
for the York County bargaining unit, among others. MSEA's
Director of Field Services is John Graham.
4. Within the Probate Office, there are five employees whose
positions are in the bargaining unit represented by MSEA.
Two positions are excluded from the bargaining unit: the
Register of Probate, an elected position that is excluded
from bargaining by 962(6)(A), and the Deputy Register of
Probate, a position that was recently placed in a
supervisory unit.
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5. The Probate Judge is an elected position also excluded from
the bargaining unit. Three provisions of the Probate Code
concern the Probate Judge's authority with respect to the
Register of Probate. 18-A M.R.S.A. 1-305 specifically
states "The register shall be subject to the supervision and
authority of the judge of the court in which such register
serves." 18-A M.R.S.A. 1-507 also requires the Probate
Judge to constantly inspect the work of the Register to
ensure the duties of office are performed properly. The
third provision, 1-508, states:
1-508. Register incapable or neglects duties
When a register is unable to perform his
duties or neglects them, the judge shall certify
such inability or neglect to the county treasurer,
the time of its commencement and termination, and
what person has performed the duties for the time.
Such person shall be paid by the treasurer in
proportion to the time that he has served and the
amount shall be deducted from the register's
salary.
6. Ms. Diane Dennett was elected Register of Probate in the
fall of 2000 and began serving in January of 2001.
7. Ms. Dennett had difficulty learning the duties of her new
position and demonstrated a variety of performance problems.
Matters were not being processed in a timely fashion by the
Register or were processed improperly and had to be redone
by other Probate Office employees. There were complaints
from the public and attorneys who worked regularly with the
Probate Office regarding problems stemming from the
performance of Ms. Dennett as Register of Probate.
8. The Probate Office employees first went to the Probate Judge
in February or March of 2001 to report on the performance
problems of the Register. The Probate Judge attempted to
instruct the Register on the proper procedures, but the
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problems would always reappear soon after. The employees
felt that the Judge was overly concerned that they respect
Ms. Dennett as an elected official and that he was not
forceful enough in addressing her performance shortcomings.
9. In addition to the performance issues, the Probate Office
employees were concerned with the bizarre behavior of the
Register of Probate. Ms. Dennett had told them a number of
strange stories that caused them some concern. One such
story was that the police chased her on the highway while
she was driving her Corvette. The truckers came to her aid
by making a line with their trucks and she then drove her
Corvette underneath a tractor trailer. During the summer of
2001, she also told them she had a gun and knew how to use
it. She said she had shot an intruder coming into her house
and killed him; that she had gone into a courtroom in New
Hampshire with a gun in her purse and had been tackled by
the security guard when she went through the metal detector.
10. One day in October of 2001, Deputy Register Carol Lovejoy
noticed that Ms. Dennett was acting in a particularly
strange manner. She was muttering to herself, "I've got to
do something" and "Nobody's going to like it." Ms. Lovejoy
and the employees were very concerned. Ms. Lovejoy went to
Mr. Adjutant and told him that Ms. Dennett was acting very
strangely, and that he might want to alert security.
Mr. Adjutant observed Ms. Dennett for a while and then
ordered a lock down of the building that night and posted a
security guard at the rear entrance.
11. The Probate Office issue was a specific agenda item for a
County Commissioners meeting in October of 2001. Many, if
not all, of the Probate Office employees attended, as well
as the Register of Probate, the Probate Judge and a
paralegal from a law firm. The paralegal attempted to
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complain about the slowness of getting petitions processed.
Ms. Dennett disputed this. Mr. Layman, the Chair of the
Commissioners, testified that Judge Nadeau then "took over"
and started to make accusations which Mr. Layman thought
turned it into a political issue. After Judge Nadeau kept
"pushing this issue," Mr. Layman testified that he:
. . . I turned around and told him, I said, well,
if you want to run the county, why don't you run
the county, because these are county employees,
they're hired by us, they can only be fired by us,
and you're a judge, but you're only a judge of
probate, you're not a civil judge. So he got a
little upset with that, and he said, well, you
have always determined that you're going to run
the--I said absolutely; under state law, Title 30,
section 102, county commissioners have final
authority over all department heads whether
they're elected or appointed. And I asked at that
time, I said why don't you take and give me the
names of the attorneys who have made some kind of
accusations against probate court; I will contact
them personally. They promised me they would give
me a listing of that; to this day I have not
received that list. And then I turned around to
him and I said, Mr. Nadeau, where I come from, I
said I come from the Appalachian Mountains, we
have an old saying: If you have problems within
your family, take them to the woodshed and
straighten it out, and I would advise you to do
that. And with that the meeting adjourned.
12. On November 1, 2001, Judge Nadeau certified a change in job
duties of the Deputy Register and the Register of Probate
and directed that their respective salaries be switched. By
this action, the Deputy Register of Probate formally assumed
many, but not all, of the duties of the Register of Probate.
13. By February 2002, Ms. Lovejoy was having difficulty with the
stress of doing her own job in addition to many of the
Register's duties. She went to the Probate Judge to get his
assistance in reducing her workload. Together, they decided
to assign some of the Deputy Register duties to various
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employees in the bargaining unit. The bargaining unit
employees performed these added duties without any
additional compensation.
14. At some point during 2002, the Register of Probate became
concerned with the fact that personal phone calls were being
made by the Probate Office employees. She tried to identify
phone calls made by employees by pouring over the telephone
logs from the Commissioners' Office and using the internet
to identify who had been called. Register Dennett contacted
the District Attorney's office to see if charges could be
filed against employees for making personal phone calls. In
the fall of 2002, the Probate Judge had a meeting with all
the employees and the Register on this issue. He then
issued a memo directing the employees to limit the number of
personal phone calls.
15. In addition to work quality issues, there were also concerns
about the number of hours the Register actually worked. The
Register often came in late and left early and sometimes
came in late at night to work. After discussing the matter
with the Deputy Register, Judge Nadeau attempted to
institute the use of time clocks in the Probate Office in
order to better track the hours worked by the Register of
Probate. The effort to use time clocks was unsuccessful.
16. In November of 2002, the Probate Judge met with the Register
of Probate and the Deputy Register of Probate. The Judge
instructed the Register to provide him with a written
itemization of time spent on specific probate matters over
the following two weeks. She eventually provided him a
handwritten sheet but it did not contain any information on
the amount of time the Register was spending on any probate
matters, as the Judge had requested. It contained various
notations such as "Anne and Carol had popcorn for lunch,"
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what time people left work, but nothing on her own work on
probate matters.
17. On November 27, 2002, York County Probate Judge Robert
Nadeau wrote a letter to York County Treasurer James Atwood.
The letter had as its subject line "Immediate Statutory
Change of Salaries" and stated:
Pursuant to the provisions of 18-A M.R.S.A. 1-
508, I hereby certify that I find the York County
Register of Probate to have continued to be unable
to perform various duties reserved to her during
the past year. Such inability and neglect are
clearly likely to continue in the absence of
corrective action which I have now ordered within
the office of the York County Registry of Probate.
Accordingly, to address the foregoing, I direct
that you shall immediately reduce the amount paid
from the previously authorized salary of the
Register of Probate from its existing level of
$37,565/year to $23,210.41/year, and that you pay
over to the following persons to whom the
Register's duties have been re-assigned the
following amount from the difference:
The letter then listed 6 job titles with corresponding
payments ranging from $20/week for the Temporary Clerk to
$71.55/week for the Deputy Register of Probate. The letter
was copied to all of the affected employees, the County
Manager, the Chair of the County Commissioners, and the
Chair of the York County Budget Committee.
18. In mid-December, the Probate Office employees came to the
Union President, Ms. Jennifer Kern, with the Judge's letter.
She had not known about the Judge's Nov. 27th letter until
this time. The employees felt that they had a valid
grievance because they had not received any money. Ms. Kern
contacted the MSEA office and was instructed by John Graham
to write a letter requesting bargaining.
19. Union President Kern wrote to the County Manager, David
Adjutant, on December 27, 2002. Her letter states:
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It has been brought to my attention that on
November 27, 2002, an immediate statutory change
in salaries was requested from Judge Robert M.A.
Nadeau for MSEA Unit covered employees for higher
compensation due to additional job duties and
responsibilities. Please see November 27th letter
attached.
As President of Local 1297, I request impact
negotiations on these proposed changes at your
earliest convenience.
Please contact me as soon as possible so that
we may discuss this issue.
This letter was copied to the Probate Judge, William
Layman as Chair of the County Commissions, two Field
Representatives at MSEA and the affected employees.
20. Mr. Adjutant testified that he did not recall having any
discussions with any union representatives about Judge
Nadeau's order when it was issued. Mr. Adjutant testified
that he believed that he spoke with Shop Steward Ron Gouin
about this issue after receiving Ms. Kern's December letter.
Although he could not recall the specific conversation,
Mr. Adjutant was confident that he would have indicated to
Mr. Gouin that there was some dispute about Judge Nadeau's
authority to issue the directive.
21. In a memo dated January 7, 2003, with a subject line of
"Probate Office Inquiry," County Manager Adjutant responded
to Ms. Kern with the following:
In response to your earlier, written inquiry on
behalf of unit covered County employees working in
the Probate Office. Please be advised of the
following facts:
- At this time, no grievance(s) are on
file with this office.
- On January 02, 2003, an Executive
Session was convened as an item on the
County Commissioner Meeting agenda re:
the Probate Office.
- No discussion or vote followed
conclusion of the Executive Session.
- By requirement of 1 MRSA 405, no
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further comment on the content of that
Executive Session can be made.
This memo was copied to the County Commissioners, York
County's counsel G. Libby, the County Treasurer, and
Mr. Gouin.
22. The Probate employees received one paycheck that included an
additional amount in response to the Judge's directive in
late 2002 or early 2003, although it is not clear when this
occurred. It is undisputed that this payment did not
continue beyond this one check.
23. Toward the end of January 2003, the Union had a meeting with
the Probate Office employees. The meeting was attended by
Ms. Manning, Ms. Kern, and Mr. Gouin, in addition to the
Probate Office employees. Ms. Kern first learned of the
bizarre behavior of Register Dennett at this meeting. The
outcome of the meeting was that Ms. Kern would make a second
request to bargain over the wage and workload issue and that
they would also file a grievance on the workplace safety and
security issue. They also decided that Mr. Gouin would meet
with Mr. Adjutant to discuss these issues. Mr. Gouin had
this meeting on January 29, 2003. Mr. Adjutant told him
that the matter was pending in litigation and that his
hands were tied.
24. Mr. Adjutant claims he had several meetings with Mr. Gouin
between January 7th and January 30th, 2003. He described
these meetings as informal, stating:
... If [Ron Gouin] had questions or was
merely trying to clarify information on behalf of
his unit members, it was not uncommon for Ron to
stop by my office early in the morning and say,
Can we talk about this? Can you help me
understand this? And I know we had some of those
conversations. . . . [With respect to Judge
Nadeau's order], I attempted to help him
understand the county's position wasn't that we
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were taking a side on this issue of whether or not
the employees were or were not doing the work, or
whether they were entitled to additional
compensation, but it was a mere technical issue as
to whether or not Judge Nadeau had the authority
to direct the action that he had, and that I not
being an attorney had to defer to people with that
knowledge and that it was being pursued through a
court process, and that until that happened that I
felt that I had no authority to act in one regard
or another.
25. On January 30, 2003, Ms. Kern again wrote to Mr. Adjutant
stating:
Acknowledge receipt of this letter as 2nd
Request for impact negotiations (see 1st
request attached, dated 12/27/02), regarding
the additional job duties and responsibil-
ities from MSEA Unit Covered Employees. Also
attached, please note your response to my
first request.
Please contact me at your earliest
convenience so that we may schedule a date
and time to commence collective bargaining on
this issue.
This letter was copied to Judge Nadeau, Commissioner
Layman, Ms. Manning, and Mr. Gouin.
26. Mr. Adjutant testified that he believed he also had a
meeting with Mr. Gouin following receipt of the January 30th
letter and again explained the County's position on Judge
Nadeau's order. Neither the MSEA Field Representative,
Ms. Manning, nor Ms. Kern were aware of any meetings that
Mr. Adjutant had with Mr. Gouin on these issues other than
the January 29, 2003, meeting. Ms. Kern testified that she
would have expected Mr. Gouin to have reported to her if he
had met with Mr. Adjutant on other occasions. Mr. Adjutant
acknowledged that the discussions with Mr. Gouin were not
formal negotiating sessions or formal grievance meetings.
27. On February 3, 2003, County Manager Adjutant wrote the
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following to President Kern:
This writing is in response to your
correspondence dated January 30, 2003 re:
impact negotiations.
As you may know, issues relating to the
Probate Office are currently awaiting
adjudication in Superior Court. Pursuant to
advice from legal counsel to the County, no
action can or will be taken until issues have
been resolved in Superior Court.
This letter was copied to the Commissioners, Judge Nadeau,
Ms. Manning, and Mr. Gouin.
28. Sometime in early 2003, there was an incident that occurred
between Register Dennett and Deputy Register Lovejoy that
disturbed the Probate Office employees and added to their
concerns about the security of their workplace. Ms. Lovejoy
had made corrections to a docket sheet that Ms. Dennett had
typed. Ms. Lovejoy was in her office with her back to the
door and Ms. Dennett came in quietly then slammed her book
down very hard and said "I'm not going to take this
anymore." Ms. Dennett wanted to know why Ms. Lovejoy had
made the changes. Ms. Lovejoy tried to act calmly even
though she was very scared and explained what she had done.
When Ms. Dennett left the office, Ms. Lovejoy took a deep
breath and went back to doing what she was doing. She
turned around again and saw Ms. Dennett just standing in the
doorway, saying nothing, just staring at her in a manner
that made Ms. Lovejoy feel very threatened.
29. The collective bargaining agreement has a detailed five-step
grievance procedure, which includes binding arbitration as
the final step. The agreement states that a meeting between
the parties "shall be held" at each step of the grievance
procedure.
30. On January 30, 2003, Mr. Gouin filed a "class action"
grievance on the failure of the employer "to compensate
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probate court employees as directed by judge." It alleged a
violation of the preamble and the compensation articles of
the collective bargaining agreement. The remedy sought back
pay for Probate Office employees "due to a re-assignment of
duties and pay as per Judge Robert M.A. Nadeau." Mr. Gouin
presented this grievance in hand to Mr. Adjutant, at which
time Mr. Adjutant denied it orally.
31. On February 4, 2003, Ms. Manning filed a grievance on behalf
of the Probate Office employees alleging violations of the
contract's Preamble and Security articles. The Union
grieved over:
the hostile work environment created by the
unstable and volatile actions of the
supervisor; the surveillance of the
employees, the threats and intimidation
issued by the supervisor and the impact that
these actions have on the productivity,
morale and efficient operation of the
employees of the Probate Court.
As a remedy, the Union sought:
The removal of the immediate supervisor from
the workplace and her continued removal until
such time as the County can guarantee an
atmosphere conducive to professional conduct,
civil discourse and a safe work environment.
32. Mr. Adjutant responded to the grievance of January 30th in a
letter dated February 18, 2003, addressed to Mr. Gouin and
copied to the MSEA office and Ms. Kern. He denied the
grievance, stating:
. . . All matters pertaining to issues
involving the Probate Court and Probate
Office have been advanced to Superior Court
where action is pending. Legal counsel to
the County advises that, due to this action,
neither I, nor the County Commissioners,
could take action.
I am further denying this grievance on the
grounds that, while Judge Nadeau does have
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certain authority pursuant to 18 MRSA 503,
his directive of November 27, 2002 is not
within that scope of authority.
33. Mr. Adjutant responded to the February 4th grievance filed
by Ms. Manning in a letter also dated February 18, 2003. In
denying the grievance, Mr. Adjutant wrote:
... All matters regarding the operation of
the Probate Court and Probate Office are
currently pending in Superior Court.
Beyond that point, neither I, nor the
County Commissioners, have legal authority
from preventing any elected official from
access/egress to County property. Lacking
this authority, no action can or will be
taken on this filing.
34. Mr. Adjutant testified that although he did not recall the
specific conversations, he is confident that the issue of
employee security and the County's inability to bar Register
Dennett from entering the building were sufficiently
important that he probably discussed it with Ms. Manning,
Ms. Kern and Mr. Gouin on more than one occasion.
35. By letter of March 11, 2003, directed to Commissioner
Layman, Ms. Manning attempted to invoke the next step of the
grievance procedure for both grievances by requesting a
hearing before the County Commissioners. The employer did
not respond to the Union's request.
36. By letter of April 7, 2003, directed to the County Manager,
MSEA demanded that the two grievances be submitted to
arbitration. Ms. Manning identified her preference for an
arbitrator. The letter was copied to Commissioner Layman
and Ms. Kern.
37. Mr. Adjutant wrote to Ms. Manning on April 9, 2003, noting
that the grievances had been previously denied due to a
"lack of a grievable issue and advice of legal counsel" and
that "those conditions remain unchanged." Mr. Adjutant
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agreed to Ms. Manning's choice of an arbitrator but noted
that they objected to the arbitrability of the issue.
38. In the meantime, Ms. Dennett worked somewhat regularly until
April 22, 2003. An incident occurred on April 18, 2003 in
which Ms. Dennett and Ms. Stephanie Lekakos were trying to
pass each other in a narrow aisle of the "stacks" portion of
the office, where old books and records were kept.
Ms. Dennett moved to the side to allow the employee to pass.
According to Ms. Lekakos, there was no physical contact.
She did not hear anything about the incident until the
following week.
39. According to Mr. Adjutant, Ms. Dennett came to his office on
April 18th claiming that she and the employee had collided
and that her shoulder was sore and she was going to get
medical attention. She reported it as a workers'
compensation incident to Mr. Adjutant. On the following
Tuesday, Ms. Dennett worked part of the day and again
stopped by for a workers' compensation claim form. Even
though her workers' compensation claim was denied, she has
not been back to work since that time, other than the one
partial day in October of 2003 described below.
40. Ms. Dennett did not use the term "assault" when describing
the incident to Mr. Adjutant, although he did testify that
there were rumors that Ms. Dennett was going to file an
assault charge against Ms. Lekakos. When Ms. Lekakos first
heard that Ms. Dennett was talking about an assault charge,
she was very concerned and came to Mr. Adjutant to explain
what actually happened. He reassured her and told her he
believed her account of the incident and not to worry about
it. Nonetheless, she was concerned that Ms. Dennett might
decide to file an assault charge against her at some point.
41. On June 11, 2003, Ms. Manning wrote to Mr. Adjutant in
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reference to another "directive" from the Probate Judge
dated the previous day, which sought to increase the
salaries of various Probate Office employees. Ms. Manning
included a proposed memorandum of agreement on these new
wages. The letter also indicated that if Mr. Adjutant was
unable to sign that agreement, the letter should be
considered "a 10-day notice, pursuant to 26 MRSA
965(1)(B), to meet and negotiate over the implementation of
Judge Nadeau's various orders, including his June 10, 2003
directive to Treasurer Atwood."
42. In a letter dated June 19, 2003, Mr. Adjutant responded at
length to Ms. Manning's letter. Mr. Adjutant wrote:
I am writing in response to your letter of
June 11, 2003, regarding the order entered by
Judge Nadeau on June 10, 2003, regarding his
belief that the compensation of certain employees
working in the Probate Office should be increased.
I understand from your letter that the Union is
taking the position that the mere issuance by
Judge Nadeau of the order, establishes a new
legal, minimum compensation standard for these
employees. York County's position is that the
validity of the order is currently the subject of
litigation in the Superior Court. If the order is
determined to be valid and effective, York County
believes that the order is just the first step in
a process through which a determination can then
be made as to whether or not the compensation of
any employee should be increased. The final
authority to make job and wage-related decisions
rests with the County Commissioners. As a result,
York County is not in a position to sign the
Memorandum of Agreement that you enclosed.
In addition, because Judge Nadeau's
compensation modification orders are being
contested in the above referenced litigation
and have not yet been approved for
implementation as they pertain to bargaining
unit members, York County does not believe
that there is anything to meet and negotiate
over at this point in time. In the event
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that Judge Nadeau's authority to set wage and
job terms ultimately receives approval from
the courts and York County moves forward with
the implementation process, York County will,
of course, be willing to meet and negotiate
over the implementation of a modified
compensation system for the employees within
the Probate Office. Such a meeting at this
time, however, appears to be premature.
If you believe that we should meet in the
interim to discuss the matter, please do not
hesitate to contact me and we can promptly
set up a meeting.
43. On July 2, 2003, Mr. Adjutant, Mr. O'Brien (York County's
attorney), Ms. Kern, Ms. Manning and Mr. Belcher (MSEA's
attorney) met in a room in the basement of the courthouse.
This meeting was held partly in response to the arbitrator's
urging of the parties to try and settle their differences,
and partly in response to the Union's request to bargain set
forth in the letter of June 11, 2003.
44. There is no evidence in the record on how the parties came
to schedule their meeting for July 2, 2003. There is no
evidence in the record indicating that the parties agreed on
the July 2, 2003, meeting date prior to the expiration of 10
days from the receipt of the June 11, 2003, demand for
bargaining.
45. At the July 2nd meeting, the parties discussed Ms. Dennett's
behavior and the employees' security concerns. They agreed
that Mr. Adjutant should hold a meeting with the employees
to hear their concerns and try to develop a workable
solution. With respect to the wage issue, the County held
to its position that no action could be taken until the
issue was resolved in the courts.
46. The grievances filed on January 30, 2003, and February 4,
2003, went to arbitration. The arbitration hearing was held
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on July 24, 2003, in the Probate Court, which was a few feet
from the Probate Office. There was a dispute over whether
the employees should be paid for their time at the
arbitration hearing. A grievance filed on that issue
ultimately went to arbitration.
47. At the some point, the parties agreed to hold the grievance
on the pay issue in abeyance pending the resolution of the
various court proceedings described below. With respect to
the grievance regarding the safety and security of the
employees and the Register's behavior, the employer argued
that it was not arbitrable. The parties agreed that the
Union would submit an offer of proof and the Arbitrator
would rule on the arbitrability question and on whether the
alleged facts would, if proven, constitute a violation of
the agreement.
48. The arbitrator ruled against the County on the arbitrability
issue, and concluded that based on the Union's offer of
proof, the employer violated the preamble provision. This
"recommended decision" was issued on September 15, 2003.
The arbitrator included a proposed remedy of three parts:
1) that upon the Register's return to work, the Employer
should meet with her and explain that her behavior violated
the contract and was not conducive to a productive office,
2) that the Employer should meet with employees and hear
their complaints and 3) that the Employer should relay the
employees' concerns in a letter to the Probate Judge asking
him to exercise some supervision to remedy the problem
pursuant to his statutory authority to supervise the
Register of Probate.
49. The collective bargaining agreement's article on "Position
Descriptions and Classifications" provides, in part:
The employer and the Union recognize that job
duties may change from time to time, due to
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changes in programs, technology, and other
factors. Employees may, upon recognition of
significant changes in job duties, apply to the
County Manager for upgrades in their respective
positions. Such upgrades shall not be
unreasonably denied. Should the employee believe
that an unreasonable denial has taken place, they
may request a desk audit review by the County
Manager.
50. A Probate Office employee named Cynthia St. Amand requested
a desk audit and met with Mr. Adjutant and Ms. Kern on
July 9, 2003 to review her job. Mr. Adjutant took the
matter under advisement pending contact with the County's
legal counsel.
51. In a memo dated July 15, 2003, Mr. Adjutant denied the desk
audit, stating that he did so "as the result of pending
litigation and/or arbitration filings. Until these issues
involving the Probate Office are resolved, I have been
advised that I am unable to act." An additional desk audit
requested by employee Ms. Ginny Nadeau at about this same
time was also either denied or stalled due to the pending
litigation. Mr. Adjutant testified that these two desk
audits could not be granted because they were a result of
Judge Nadeau's order to reassign job duties and increase
wages.
52. A news article published in the Journal Tribune on July 11,
2003, reported on various aspects of the disputes in the
Probate Office including the County's refusal to bargain and
the filing of the complaint in this case. Commissioner
Layman is reported as saying the County did not bargain
because of pending litigation and because the Union did not
follow the procedure specified in the collective bargaining
agreement on job reviews.
53. On a Monday in October of 2003, Ms. Dennett arrived at the
Probate Office for the first time in months looking very
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disheveled and unkempt. She was pulling a big suitcase on
wheels with a long handle. Ms. Lovejoy thought that she
looked very ill. The other Probate Office employees were
concerned about Ms. Dennett's stability and their own
safety. Ms. Dennett told Ms. Lovejoy that she wanted to
speak with her. Ms. Lovejoy responded by saying "Just a
second. I have something I have to do." Ms. Lovejoy went
directly to Mr. Adjutant's office and asked why Ms. Dennett
was there. In her presence, Mr. Adjutant called Attorney
Libby and spoke to him about what he could do. Mr. Adjutant
told Ms. Lovejoy that he would speak to Ms. Dennett and see
if she would leave voluntarily, as he did not have any
authority to force her to leave.
54. Ms. Lovejoy and Mr. Adjutant then went to the Probate
Office. Mr. Adjutant met with Ms. Dennett in Ms. Lovejoy's
office, while Ms. Lovejoy stood outside the door and
listened. Mr. Adjutant told Ms. Dennett that she did not
look well, and asked her if she was medicated or under the
influence of anything. He did not think she was focused or
in possession of all her faculties. He asked if she had
medical clearance to return to work, and suggested for her
own safety and the county's safety that she go home. She
responded that even though she did not have to comply with
his request, she would leave if he gave her a letter.
Mr. Adjutant went to his office to prepare the letter.
55. Ms. Dennett again said that she wanted to speak with
Ms. Lovejoy who responded that she would only do so if a
witness was present. Ms. Lovejoy called a security officer
and the three of them met in the courtroom. Ms. Dennett
inquired about issues related to the operation of the
Probate Office and acted as if nothing unusual had happened.
After a while, Ms. Dennett returned to her office and worked
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on the computer a bit until Mr. Adjutant returned with the
letter. Ms. Dennett left at about 11:30 a.m. and did not
return, although she had told Mr. Adjutant that she would
return with medical clearance the following day.
56. Mr. Adjutant had seen Ms. Dennett on the Friday previous to
her surprise visit. He was in the Commissioners' and
Treasurer's office informally chatting with a number of
employees. Ms. Dennett was there and mentioned that she was
going to return to work on Monday. He did not inform the
Probate Office employees that she said this because he was
not sure it would really happen and he did not want them to
worry over the weekend.
57. After Ms. Dennett left, Mr. Adjutant spoke to the Probate
Office employees and Ms. Kern. He told them he asked her to
leave voluntarily and that she would not be allowed to
return without medical clearance. The employees were
concerned that she might return and wanted to know what
management's response would be. Mr. Adjutant stated that he
needed to get further guidance and that if anything
happened, he should be contacted immediately so he could
observe her behavior.
58. Not long after Ms. Dennett returned to the office for that
partial day in October, Mr. Adjutant, Mr. Belcher and
Ms. Kern met in Mr. O'Brien's office in Kennebunk.
Mr. Belcher strongly recommended to Mr. Adjutant that the
County begin implementing the arbitrator's decision by
meeting with employees to reassure them after Register
Dennett's surprise visit. Mr. Adjutant did hold this
meeting in November of 2003 and by all accounts the meeting
had a positive effect on employee morale.
59. During 2003, a number of court proceedings were initiated
surrounding the Probate Judge's directives of November 27,
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2002 and June 10, 2003.[fn]1 Judge Nadeau initiated contempt
proceedings in the Probate Court against the County
Treasurer for failure to implement the directive. Register
of Probate Dennett filed a complaint in Superior Court
alleging that Judge Nadeau did not have the authority to
restrict her duties or reduce her pay and sought injunctive
relief against Nadeau and the County Treasurer. Judge
Nadeau also initiated contempt proceedings against Register
Dennett for her failure to comply with his instruction that
she not represent the Probate Court in any meeting of the
York County Commissioners.
60. While the Register of Probate's complaint contesting the
Probate Judge's authority was in Superior Court, York County
submitted a brief in opposition to the Probate Court's
Motion to Dismiss. In that brief, the County stated that
the County Treasurer had requested more time from the
Probate Judge to consider the legal ramifications of the
Judge's certification and explained in a footnote:
As a public employer, York County is required to
submit certain matters, including wages, to the
collective bargaining process. 26 M.R.S.A. 961
et seq. The Treasurer delayed implementing the
Judge's directive so that he could first negotiate
with the MSEA (the employees' collective
bargaining agent) - the failure to do so would
constitute a prohibited practice in violation of
26 M.R.S.A. 964. The York County Treasurer had
previously complied with an earlier salary
reduction certification by the Probate Court in
2001/2002. . . .
61. Eventually, the cases were consolidated and presented to the
____________________
1 The Probate Judge's first directive of November 1, 2001, which
reassigned certain duties and switched the salaries of the Register of
Probate and the Deputy Register of Probate, was implemented at the
time and has remained in effect since then. As neither of those
positions were in a bargaining unit and represented by a union, there
was no duty to bargain.
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Law Court, which issued its decision on May 4, 2004. The
Law Court held that the Probate Judge's use of contempt
proceedings was improper, and that there was no statutory
authority for the Probate Judge to directly reduce the
Register of Probate's salary. York Register of Probate v.
York County Probate Court et al., 2004 ME 58. The Law Court
remanded Register Dennett's complaint to the Superior Court
"to consider the powers of the Judge of Probate, the
Treasurer, and the County Commissioners pursuant to section
1-508, and whether, and to what extent, the statute requires
that the Treasurer act on the certification of the Judge of
Probate." 2004 ME 58 19 (emphasis in original).
62. During the time period in question, two or three other
grievances were filed on behalf of Probate Office employees.
One of these grievances contested the employer's refusal to
pay certain Probate Office employees for the time spent at
the July 24, 2003, arbitration hearing. That grievance had
gone to arbitration by the time of the hearing in this case.
An additional grievance (or two) had been filed regarding
the employer's failure to act on requested desk audits. The
evidence on how these grievances were processed is not
entirely clear.
63. Mr. Ron Gouin was removed from his position as Union Steward
sometime prior to 2004 because of his failure to meet the
Union's training requirements. Mr. Gouin told Mr. Adjutant
that he felt that the Union had not treated him fairly.
64. On January of 2004, two employees requested desk audits in
response to the assumption of additional or different job
duties that had been assigned by Deputy Register Carol
Lovejoy. After reviewing the change in job duties and
discussing the matter with Ms. Lovejoy, Mr. Adjutant and Ms.
Lovejoy decided they should continue to monitor the job
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performance of these employees with respect to the new
duties before making a decision. Mr. Adjutant testified
that he treated these desk audits differently than the
previous two because the change in job duties was directed
by the Deputy Register (acting as a department head), not by
the Probate Judge.
DISCUSSION
The Union argues that York County refused to bargain in
violation of 964(1)(E) and interfered, restrained or coerced
employees in the exercise of their collective bargaining rights,
thereby violating 964(1)(A). There are three basic allegations
underlying these charges: the specific allegation that the
County refused to meet within 10 days of the Union's request to
bargain as required by 965(1)(B); the general claim that the
County refused to bargain over mandatory subjects as requested;
and the assertion that the County has effected a wholesale
repudiation of the collective bargaining relationship with
respect to the Probate Office employees. We agree that the
County's failure to meet within 10 days of the Union's request to
bargain constitutes a per se refusal to bargain in violation of
964(1)(E). We also conclude that the County violated 964(1)(E)
by refusing to bargain with the Union over the impact of the
Probate Judge's certification. We disagree with the Union on the
issue of whether those actions and the Employer's other conduct
with respect to the Probate Office rose to the level of being a
wholesale repudiation of the collective bargaining relationship
constituting an independent violation of 964(1)(A).
Section 964(1)(E) prohibits public employers from refusing
to bargain collectively as required by section 965. Section 965
defines various components of collective bargaining, including
the requirements:
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A. To meet at reasonable times;
B. To meet within 10 days after receipt of
written notice from the other party
requesting a meeting for collective
bargaining purposes, provided the parties
have not otherwise agreed in a prior written
contract;
C. To confer and negotiate in good faith with
respect to wages, hours, working conditions and
contract grievance arbitration, except that by
such obligation neither party shall be compelled
to agree to a proposal or be required to make a
concession . . .
Thus, when a union submits a written request to bargain over
a mandatory subject, the employer is obligated to meet within 10
days and to confer and negotiate in good faith on that subject.[fn]2
In this case, the Union made three written requests to bargain.
The first one, dated December 27, 2002, was from the MSEA Local
President and refers to the "change in salaries" "requested" by
Judge Nadeau due to the added job duties and responsibilities
assigned to the Probate Office employees. The Union President
requested "impact negotiations on these proposed changes." While
it is not entirely clear whether the request relates to the
Probate Judge's requested salary changes or the change in duties,
the request for impact negotiations is unequivocal.
In the second letter, dated January 30, 2003, the Union
President requested "impact negotiations regarding the additional
job duties and responsibilities" of the Probate Office employees
and asked that Mr. Adjutant contact her to "schedule a date and
time to commence collective bargaining on this issue." Neither
of the first two letters explicitly announces that the letter is
intended to serve as the 10-day notice under 26 M.R.S.A.
____________________
2 There is no claim that the Union waived its right to mid-term
bargaining in this case.
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965(1)(B).[fn]3 Nonetheless, we conclude that both of these letters
were proper requests to bargain that comply with the requirements
of that provision.
The third letter from the Union, dated June 10, 2004,
clearly states that it is intended to serve as a 10-day notice
under 965(1)(B) to meet and negotiate over the implementation of
Judge Nadeau's various orders. All three requests relate to
mandatory subjects of bargaining as both compensation and the
impact of additional job duties are mandatory subjects of
bargaining. See East Millinocket Teachers Assoc. v. East Milli-
nocket School Committee, No. 79-24, at 5 (Apr. 9, 1979) (Impact
of absorbing the duties of one position into another is a
mandatory subject).
We conclude that all three of the Union's bargaining
requests were sufficient to trigger the County's obligation to
meet and negotiate. The County argues that it had no obligation
to bargain because the Probate Judge had no authority to increase
the employees wages, a position the County incorrectly claims was
recently upheld by the Law Court.[fn]4 The problem with this
argument is that the Union's request for negotiation on wages,
like the Probate Judge's so-called "directive" to increase wages,
was a result of the additional job duties and responsibilities
assigned to the Probate Office employees. The evidence is clear
that the employees took on additional job duties beginning in
February, 2002. That change in the job responsibilities was
real, and whether the Probate Judge had the authority to increase
wages had nothing to do with that reality. The scope of the
____________________
3 A reference to the statute is not required, although it is
advisable.
4 The Law Court held that the Probate Judge did not have the
authority to directly reduce or redistribute the Register of Probate's
salary. 2004 ME 58 19.
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Probate Judge's authority to directly order wage increases or
redistribute job duties is a separate issue which does not alter
the Employer's duty to bargain over wages and working conditions.
The Employer's doubts about the Probate Judge's authority
does not excuse its failure to meet within 10 days. The Board
has always interpreted the ten-day notice in 965(1)(B)
literally: a party must meet within ten days after receipt of a
written notice from the other party requesting bargaining. A
failure to meet within ten days is a per se violation of Section
964(1)(E) and, as such, constitutes a violation irrespective of
evidence of bad faith. See, e.g., MSAD No. 43 Teachers Ass'n v.
MSAD No. 43, No. 79-42, at 3 (May 1, 1979), citing NLRB v. Katz,
369 U.S. 736 (1962)(No need to consider the issue of good faith
if party has refused to meet). Thus, the Employer's concerns
about the Probate Judge overstepping his authority is not a valid
justification for its refusal to meet. East Millinocket Teachers
Assoc. v. East Millinocket School Committee, No. 79-24 at 5
(Noting that a misunderstanding of the law does not excuse the
duty to meet). See also Local 1650, IAFF, v. City of Augusta,
No. 01-09, at 6 (Aug. 20, 2001), aff'd City of Augusta v. MLRB,
AP-01-63, Ken. Cty. Sup. Ct. (May 3, 2002).
In the present matter, the Employer did not respond to any
of the three bargaining requests by meeting within 10 days. The
County argues that the response it gave to the Union was
sufficient to comply with its duty to bargain. The County
Manager testified that he responded to the December 27th bargain-
ing request by discussing the issue with Shop Steward Gouin,
although he did not recall the conversation specifically or even
when it occurred other than sometime after receiving the
December 27th letter. He testified that it was likely that he
told the steward that there was a dispute as to the Probate
Judge's authority. Mr. Adjutant also acknowledged that these
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discussions were not formal negotiation sessions. There was no
evidence that Mr. Gouin considered the discussion to be a
negotiating meeting held in response to the bargaining request
nor was there evidence establishing that the discussion was a
meeting which occurred within 10 days of the request. Mr.
Adjutant did not meet with Ms. Kern, the Union President and the
person who made the first two requests to bargain. Similarly,
Mr. Adjutant's testimony regarding additional meetings with Mr.
Gouin following the January 30th bargaining request does not
establish that the County complied with the requirement to meet
within 10 days of the bargaining request. We conclude that the
County's failure to meet within 10 days of either of these two
written bargaining requests was a per se violation of 964(1)(E).
With respect to the June 11, 2004, request to bargain, the
parties eventually met to negotiate, but not within 10 days of
the request. Mr. Adjutant responded in writing to the June 11th
letter on June 19th by fax and U.S. Mail. In that letter,
Mr. Adjutant noted that the County was involved in litigation in
Superior Court over the validity of the Probate Judge's Order.
He went on to state "York County does not believe that there is
anything to meet and negotiate over at this point in time. . . .
If you believe that we should meet in the interim to discuss the
matter, please do not hesitate to contact me and we can promptly
set up a meeting." Although the County responded to the Union's
request within 10 days, the statute requires the parties to meet
within 10 days of the request, not merely respond to the request.
The parties did not meet until July 2, 2003, well over the 10-day
requirement.
The County argues that by agreeing to meet and negotiate on
July 2, the Union waived any objection it might have had to the
failure to meet within 10 days of the request. We agree that if
the evidence proved that the Union had, within the the 10-day
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period, agreed on a meeting day outside of the 10-day period, we
would likely view that as a waiver. In this case, however, there
is no evidence that the parties had agreed upon the July 2nd date
within the 10-day time frame. We cannot assume facts not offered
as evidence. Meeting within 10 days is a minimum statutory
requirement set forth in 965(1)(B). See Waterville Teachers
Assoc. v. Waterville Board of Education, No. 82-11, at 4 (Feb. 4,
1982)(Noting that a showing of bad faith not required when
"conduct fails to meet the minimum statutory obligations or
constitutes an outright refusal to bargain"). See also MSAD No.
43 Teachers Ass'n., 79-42 at 3 (Fact that parties met after the
10-day period does not render the 964(1)(E) violation moot). In
summary, we conclude that the Employer violated 964(1)(E) by not
meeting within 10 days of three separate bargaining requests as
required by 965(1)(B).
Beyond the failure to meet within 10 days, the Union also
alleges that the Employer violated the MPELRL by failing to
bargain in good faith at any time over the impact of the Probate
Judge's directives. The standard this Board applies 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 negotiated with the
other party at reasonable times, observed the ground-
rules, offered counterproposals, made compromises,
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 (April 22, 1981); Sanford Highway Unit v. Town of
-28-
_________________________________________________________________
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.
Kittery Employees Assoc. v. Strahl, No. 86-23, at 10-11 (Jan. 27,
1987), quoting Waterville Teachers Assoc. v. Waterville Board of
Education, No. 82-11, at 4 (Feb. 4, 1982). In this case, we
conclude that the County's behavior constitutes "an outright
refusal to bargain" over the Probate Office issues.
The County argues that the County Manager's meetings with
the Union Steward following the first two bargaining requests
satisfied the employer's duty to bargain. The County Manager's
own testimony, however, compels just the opposite conclusion.
Mr. Adjutant testified that these meetings were not negotiating
sessions and were not even formal meetings. He described them as
casual conversations arising from his open-door policy. There is no
evidence on the substance of the discussions suggesting that
there was any effort to bargain. The County Manager gave the
same response as his written response to the January 30, 2003
bargaining request: He was unable to take any action until the
pending litigation was resolved. Bargaining is more than just
stating one's position. It involves listening to the concerns of
the other side, and making an effort to resolve differences. See
Teamsters Local Union No. 48 v. City of Augusta, Board of Educ.,
No. 78-04, at 4 (June 7, 1978)(negotiations require a willingness
to discuss proposals and a give-and-take process); and NLRB v.
Insurance Agents, 361 U.S. 477, 486 (1960) ("[parties] are bound
to deal with each other in a serious attempt to resolve
differences and reach a common ground.")
Based on these facts, we conclude that the employer refused
to bargain over the impact of the reassignment of duties in
violation of 964(1)(E). This conclusion is further supported by
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the additional findings that the Employer engaged in a pattern of
refusing to deal with the Union in any respect regarding the
issues in the Probate Office connected to the Register of
Probate. The Union filed two grievances in early 2003, but the
Employer did not meet and discuss the issues raised as
contemplated by the collective bargaining agreement. The County
simply denied both in writing at the first step, stating that the
County could not take any action as long as the matters
pertaining to the Probate Office issues were pending in Superior
Court. When the Union tried to take the grievances through the
next steps of the grievance procedure, the Employer did not
respond to the Union's requests. Although the Employer did
participate in arbitration, the County offered no explanation at
the time or in this proceeding for its failure to respond at the
earlier steps of the grievance procedure. The Employer also
refused to act on two desk audits, again relying to the pending
litigation as the basis for that refusal.[fn]5
The Employer's unwillingness to address any of the issues
festering in the Probate Office in any forum is striking. The
Union summarized this phenomenon succinctly in its brief:
This employer has argued that the union is in the
wrong forum. When it was in court, it claimed that it
was required to bargain. When asked to arbitrate or
bargain, it claimed it should be in court. To the
press, it claimed that the contractual desk audit was
the proper avenue, but when the union invoked that
procedure, it claimed it could not act because of
pending litigation. Before this Board, it has claimed
that the dispute should be arbitrated, while in
arbitration it objected to arbitrability. . . .
____________________
5 The employer is correct that the Union could have filed a
grievance over the Employer's failure to abide by the collective
bargaining agreement. The fact that the union could have filed a
grievance does not preclude our consideration of this evidence in the
context of this complaint.
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Before moving on, we want to point out that the obligation
to meet and negotiate does not require either side to agree to a
proposal. The statute is clear on this point. See 26 MRSA
964(1)(C) (" . . . neither party shall be compelled to agree to
a proposal or be required to make a concession"). A negotiating
proposal is simply one party's proposed solution to a perceived
problem. In this case, the Union proposed the implementation of
the Judge's directive on wages as a solution to the perceived
problem created by the additional job duties. Face-to-face
negotiations could lead to different solutions.[fn]6
The third claim made by the Union in this case[fn]7 is that the
Employer's conduct with respect to the Probate Office employees
constitutes a wholesale repudiation of the collective bargaining
relationship. The Union argues that this repudiation constitutes
interference, restraint and coercion of employees in violation of
965(1)(A). In light of all of the facts, we do not consider the
Employer's conduct to be a wholesale repudiation of the bargain-
ing relationship.
We have already found that the County refused to bargain
with the Union about the impact of the Probate Judge's directives
____________________
6 Nor is there any requirement that the employer accept the remedy
proposed by the Union in a grievance. For example, the remedy sought
in the second grievance, which concerned safety issues, was to bar the
Register of Probate from entering the building. The Employer's
written response noted that it did not have the authority to bar an
elected official from the building. Had the parties sat down and
discussed the issues as contemplated by the grievance procedure, the
parties could have explored other possible methods of addressing the
employees' concerns.
7 The complaint also alleged that the Register of Probate's
conduct toward the employees constituted interference, restraint and
coercion in the exercise of protected rights in violation of 26 MRSA
964(1)(A). This allegation was not argued in Complainant's brief and
is deemed to have been waived. See, e.g., Westbrook Police Unit of
AFSCME v. City of Westbrook, No. 81-53, at 6 (August 6, 1981).
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and that it did not fully comply with the steps of the grievance
procedure and the desk audit process in the collective bargaining
agreement. On the other hand, the County's behavior with respect
to the grievance procedure was not a total repudiation: The
County responded in writing and face-to-face at the first step
and subsequently participated in arbitration. Furthermore, there
was at least one other grievance involving the Probate Office
employees which went to arbitration. The evidence does not
establish a pattern of refusing to process grievances. See
Auburn School Support Personnel, AFT, Local 3832, v. Auburn
School Committee, No. 91-12, at 15 (July 11, 1991)(A pattern of
refusing to process grievances could constitute a repudiation of
the negotiated grievance procedure, and thus be a failure to
bargain.) We also note that the five Probate Office employees
constitute only a part of a bargaining unit that contains over
two dozen other job titles. There was no evidence of any
repudiation of the bargaining relationship or failure to process
grievances with respect to the rest of the bargaining unit. What
the matter boils down to, then, is a refusal to deal with the
union with respect to certain issues involving a small part of a
larger bargaining unit. There is nothing "wholesale" about the
County's conduct. See Sharron V.A. Wood v. Maine Educ. Assoc.
and Maine Technical College System, No. 03-06, at 29 (June 14,
2004)("A wholesale repudiation of a major provision of the
contract or the contract as a whole may be tantamount to a
repudiation of the bargaining relationship or of the basic
principles of collective bargaining.") While we certainly do not
condone this behavior, and indeed have found the County to have
violated its duty to bargain, we do not think it is equivalent to
a total repudiation of the collective bargaining relationship.
We therefore dismiss that portion of the complaint.
In summary, we agree that the County's failure to meet
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within 10 days of the Union's request to bargain constitutes a
per se refusal to bargain in violation of 964(1)(E). We also
conclude that the County violated 964(1)(E) by refusing to
bargain with the Union over the impact of the Probate Judge's
certifications. Contrary to the Union's claim, we conclude that
the County's overall conduct did not rise to the level of a
wholesale repudiation of the collective bargaining relationship
constituting an independent violation of 964(1)(A).
Accordingly, that portion of the complaint alleging a violation
of 964(1)(A) is dismissed.
ORDER
On the basis of the foregoing findings of 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), it is hereby ORDERED:
Respondent York County and its representatives and agents
shall:
1. Cease and desist from refusing to bargain with the
Maine State Employees Association over the impact of
the Probate Judge's directives reassigning job duties
and redistributing the Register of Probate's salary.
2. Take the affirmative action designed to effectuate
the purposes of the Act of meeting with the Maine State
Employees Association for the purposes of negotiating
the impact of the Probate Judge's directives on the
terms and conditions of employment of employees in the
Probate Office within ten days of receipt of this
order. The parties may meet beyond the ten-day period
if mutually agreeable.
3. York County shall post for thirty (30) consecutive
days copies of the attached notice to employees which
states that York County will cease and desist from the
actions set forth in paragraphs one and will take the
affirmative action set forth in paragraphs two, three
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and four.[fn]8 The notice must be posted in conspicuous
places where notices to members of the York County
General Government Unit are customarily posted, and at
all times when such employees customarily perform work
at those places. Copies of the notice must be signed
by the County Manager prior to posting and must be
posted immediately upon receipt. The County Manager
must take reasonable steps to ensure that the notices
are not altered, defaced, or covered by other
materials.
4. The York County Commissioners or the County Manager
must notify the Board by affidavit or other proof of
the date of posting and of final compliance with this
order.
Dated at Augusta, Maine, this 8th day of October, 2004.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right to week review /s/___________________________
of this decision and order Jared S. des Rosiers
by the Superior Court by Alternate Chair
filing a complaint pursuant
to 26 M.R.S.A. 968(4) and in
accordance with Rule 80C of /s/___________________________
the Rules of Civil Procedure Edwin S. Hamm
within 15 days of the date of Alternate Employer
this decision. Representative
/s/___________________________
Wayne W. Whitney
Alternate Employee
Representative
____________________
8 In the event that the Board's Decision and Order is appealed and
is affirmed by the Maine Superior Court, the words in the Notice
"Posted by Order of the Maine Labor Relations Board" shall be altered
to read "Posted by Order of the Maine Labor Relations Board, affirmed
by the Maine Superior Court."
-34-
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NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE MAINE LABOR RELATIONS BOARD
AFTER HEARING THE PARTIES' EVIDENCE, THE MAINE LABOR RELATIONS
BOARD CONCLUDED THAT WE HAVE VIOLATED THE LAW AND ORDERED US TO
POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE
LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING:
WE WILL CEASE AND DESIST from refusing to bargain with
the Maine State Employees Association over the impact
of the Probate Judge's directives reassigning job
duties and redistributing the Register of Probate's
salary.
WE WILL TAKE THE AFFIRMATIVE ACTION of meeting with the
Maine State Employees Association within ten days of
receipt of the Board's ORDER for the purposes of
negotiating the impact of the Probate Judge's
directives on the terms and conditions of employment of
employees in the Probate Office. The parties may meet
beyond the ten-day period if mutually agreeable.
WE WILL post this notice of the Board's Order for 30
consecutive days in conspicuous places where notices to
members of the York County General Government Unit are
customarily posted.
WE WILL notify the Board of the date of posting and
final compliance with its Order.
___________ ___________________________________________
Date David Adjutant, County Manager, York County
This Notice must remain posted for 30 consecutive days as required by
Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90
AUGUSTA, MAINE 04333 (207) 287-2015
________________________________________________________________
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.
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