STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 11-11
Issued: August 11, 2011

TOWN OF ORONO
Complainant

v.

IAFF LOCAL 3106
Orono Fire Fighters,
Respondent.

 

DECISION AND ORDER

 

	 

     The Town of Orono filed a prohibited practice complaint on 
January 15, 2011, in which it alleged that IAFF Local 3106 
("Union") violated section 964(2)(B) of the Municipal Public 
Employees Labor Relations Law, Title 26,  961 et seq. (the 
"Act"), by communicating details of the on-going negotiations to 
the media in direct violation of the parties' written ground 
rules.  The Union submitted a response to the complaint on 
February 16, 2011, in which it admitted that the Union president 
did communicate with the press in violation of the ground rules 
but argued that such a breach did not constitute a failure to 
bargain in good faith.
       
     During a telephone conference call with the Board's 
executive director on April 15, 2011, the parties agreed to 
submit various documents as joint submissions that would 
constitute the full record for the Board.  Subsequently, the 
parties established a briefing scheduling with the final brief 
filed with the Board on May 25, 2011.  Throughout this


[end of page 1]


proceeding, the Town of Orono was represented by Matthew 
Tarasevich, Esq., and the Union was represented by Robert F. 
Bourgault.  The Maine Labor Relations Board met on June 23, 2011, 
to consider the arguments and deliberate on this matter.					


                          JURISDICTION
      
    The Town of Orono is the public employer within the meaning 
of 26 M.R.S.A.   962(7), and IAFF Local 3106 - Orono Fire 
Fighters is the bargaining agent within the meaning of 26 
M.R.S.A.  962(2) for the employees in the Orono Fire Department.  
The jurisdiction of the Board to hear this case and to render a 
decision and order lies in 26 M.R.S.A.  968(5)(A)(C). 


                              FACTS
 
1.  At all times relevant to the alleged violation, Mr. Kevin 
Peary was the president of IAFF Local Union 3106 - Orono Fire 
Fighters, and Mr. Robert Bourgault served as the labor consultant 
for the IAFF.

2.  In early March of 2010, the Union agreed to all 13 of the 
negotiating ground rules proposed by the Town.  The ground rules 
included provisions stating: 

     the parties will conduct negotiations in executive 
     session,
     and 
 
     Each party recognizes the need for the other to inform 
     its constituents on the progress of negotiations; 
     however, both parties agree that bargaining, including 
     proposals, counter proposals, discussion of fiscal 


[end of page 2]


     matters, and tentative agreements shall take place only 
     between the designated bargaining teams through their 
     designated spokespersons.  In addition, no press 
     releases regarding negotiations shall be made by either 
     party until after negotiations have concluded.

3.  Over the next several months, the parties met a number of 
times for purposes of collective bargaining, they exchanged 
proposals and counter-proposals, and they participated in 
mediation.  Both parties exhibited a constant intention to find a 
basis for agreement and a number of issues were either settled or 
withdrawn.  Only three issues remained for submission to the 
fact-finding panel.

4.  On December 17, 2010, at 7:26 p.m., Mr. Peary sent a short 
email to Mr. Bourgault saying only "Checking in to see how things 
are going?"  Two days later, Mr. Peary sent Mr. Bourgault another 
email stating, "I left you a message. In the ground rules for 
negotiation, how long are they in effect.  Now that we are at 
impasse can we go to the press."  Mr. Bourgault was unable to  
respond to either email until December 21, 2010.
      
5.  On December 17, 2010, at 8:22 p.m., less than an hour after 
sending the first e-mail to Mr. Bourgault, Mr. Peary sent an 
email to the Bangor Daily News which said:

     How about a story about the on going negotiations 
     between Orono Fire Fighters Association and the Town of 
     Orono?
     The FF's have said they would agree to no C.O.L.A., and 
     an Insurance plan change that they would pay more for, 
     they are only asking for a couple things that have no 
     monetary value.	
     We asked for:
               1- an "evergreen clause" - keeps the current 
          contract in place after expiration until replaced 
          by a new contract (does not include any pay raises 
          COLAs), keeps the employees covered as contract


[end of page 3]
 

          union employees until contract is replaced.	

               2- nothing longer than a 2 year contract 
          without COLAs or negotiation for a cola on the 
          second year. Wages are non binding-

               3-Swaps or trading of time- in other words 
          one employee works for another in agreement to be 
          repaid at a later date.  Time for time without the 
          fire chief deciding who, or for what reason is 
          acceptable (prevents favoritism, and personal           
          agendas). The time is repaid so there is no loss 
          of funds or incurred debt.  They are most often 
          used for short term leave.  We work 24 hours 
          straight then have 48 hours off.  This is a 
          revolving schedule.  When a swap is used there is 
          no chance of overtime being created or someone 
          being forced in to work for a short time frame 
          (less than 8 hours typically).

     The Town to date has spent thousands on attorney's fees 
     and accused the union of causing them to have to pay 
     for the higher insurance plan.  Yes the Union has 
     rejected two contract offers, only because they did not 
     include swaps, they only had the town's requests not 
     ours.  We are willing to do our part.  We are just 
     asking to get something for giving up something (most      
     would agree this is only fair).

     Kevin Peary
     Union President
      
6.  The negotiation details in this email were reported in an 
article published in the Bangor Daily News on December 29, 2010, 
entitled "Firefighter contract talks stall in Orono."

7.  On December 21, 2010, when Mr. Bourgault was able to reply 
to Mr. Peary's emails of December 17th and December 19th, quoted 
above, he responded that the ground rules were in effect until 
negotiations are completed.  The following day, Mr. Peary emailed 
a reply to Mr. Bourgault saying, "So I am interpreting that as 
covering mediation, the fact finding and the arbitration as well, 
is that correct?"  Mr. Peary also suggested that in the future 


[end of page 4]


they should seek to limit the duration of that ground rule.

8.  On December 28, 2010, Mr. Bourgault emailed Mr. Peary 
stating that he had just heard from the Town's attorney that the 
acting town manager had been contacted by the Bangor Daily News 
asking about negotiations.  The reporter claimed that Mr. Peary 
had contacted the paper.  Mr. Bourgault warned Mr. Peary that if 
he had violated the ground rules by releasing information to the 
press, the Town would file a prohibited practice complaint with 
the Maine Labor Relations Board.

9.  Mr. Peary responded to the email with a claim that "I 
only contacted the paper about a possible story.  I had not 
emailed any more than that, as I had not heard from you 
about the scope of the ground rules.  I thought we were at 
impasse and the ground rules only covered the negotiations. 
I don't see fact finding and arbitration as negotiating, 
evidently I am wrong.  I am sorry if it was out of turn, I 
have never had the isolation before with negotiations."  He 
went on to complain about the behavior of management at a 
chiefs meeting.

10.  After the Town's attorney notified Mr. Bourgault that a 
Union member had gone to the press and that an article would be 
published, Mr. Bourgault and the attorney exchanged emails over 
the next couple of days which indicate that Mr. Bourgault did not 
authorize or condone the breach and that the Town understood 
that.
      
11.  Two days later (the day after the newspaper article was 
published), Mr. Peary again emailed Mr. Bourgault, saying 
"Again I apologize. I was not trying to be a problem.  I 
don't have a copy of what I sent as it was on their website 


[end of page 5]


and not my email.  I basically stated that the negotiations 
stalled.  They were asking for insurance, cola and we were 
asking for swaps that is it, anything beyond that is not 
gotten from me."

12.  The Bangor Daily News article dated December 29, 2010, 
titled "Firefighter contract talks stall in Orono", included the 
following paragraph:
 
          A source familiar with the negotiations said the 
     union has agreed to a contract that has no cost-of-
     living wage increases as well as a new insurance plan 
     that costs firefighters more money.  The town has not 
     agreed to some smaller requests, including allowing 
     firefighters to swap or trade time and not allowing 
     contracts to exceed two years without approving cost-
     of-living increases after the second year, the source 
     said.
      
13.  In addition, the Bangor Daily News article said that when 
contacted, the interim town manager, Maria Weinberger, stated 
that she could not comment on the Town's negotiating position.  
The article said Mr. Ronald Green, the regional vice president 
for the firefighters union and a member of the union's bargaining 
team, was also contacted and responded that negotiations are held in 
executive session and the details would not be made public 
until a deal is reached.
 
14.  Ms. Weinberger was initially contacted by the reporter 
sometime around December 23, 2010, seeking comment about the 
ongoing negotiations. She declined based on the ground rules. The 
reporter told her he had received an e-mail from Local President 
Kevin Peary who had described the Union's position.  On December 
28, 2010, Ms. Weinberger was again contacted by the reporter 
asking if she wanted to comment on the negotiations for an 
upcoming article.  The reporter told Ms. Weinberger that he


[end of page 6]


initially believed Mr. Peary was conducting official Town 
business in sending his December 17, 2010, e-mail, because it had 
been sent to the reporter from a Town e-mail account. The 
reporter told Ms. Weinberger that during a follow-up conversation 
with Mr. Peary, he appeared reluctant to provide any additional 
information beyond the assertions and allegations set forth in 
his December 17, 2010, e-mail.  The reporter told Ms. Weinberger 
that Mr. Peary voiced concern to the reporter that his name might 
appear in any pending newspaper article about the contract 
negotiations.

15.  The Town initiated an internal investigation and confirmed 
that Mr. Peary's email had been sent from a Town e-mail address. 
After a hearing on January 14, 2011, Mr. Peary was found to have 
violated the Town's Code of Conduct and its Internet and 
Electronic Mail Policy. A written warning was issued to Mr. Peary 
in early February, which he did not grieve.
 


                            DISCUSSION
 
     The question presented in this case is whether the admitted 
violation of the ground rule barring communication with the press 
regarding negotiations constitutes a violation of the duty to 
bargain.  Section 965 requires the parties to "confer and 
negotiate in good faith with respect to wages, hours, working 
conditions and contract grievance arbitration."  This Board's 
well-established standard for considering whether a party's 
conduct constitutes bad faith bargaining is:
       
     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 


[end of page 7]


     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 School 
     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 
     groundrules, 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 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.   
     964(1)(E) unless its conduct fails to meet the minimum 
     statutory obligations or constitutes an outright 
     refusal to bargain.
      
Waterville Teachers Assoc. v. Waterville Board of Education, No. 
82-11 at 4 (Feb. 4, 1982).  The evidence presented demonstrates 
that in all respects other than the contact with the press, the 
Union's conduct does indicate a sincere desire to reach an 
agreement:  they met and negotiated several times, made proposals 
and counterproposals, participated in mediation, and settled or 
withdrew various issues so that only three issues remained for 
the fact-finding panel to address.  There is no suggestion that 
the Union failed to comply with any of ground rules other than 
the one central to this prohibited practice complaint.  There is 
also no suggestion that the Union committed a per se violation of 
the duty to bargain by failing to meet the minimum statutory 
requirements or by committing an outright refusal to bargain. 
	
     The Union argues that in reviewing the totality of the 
circumstances, even including the violation of the ground rule, 
it is clear that the Union engaged in good faith bargaining 


[end of page 8]


because its conduct demonstrated "a sincere desire to reach an 
agreement," Union brief at 2, citing Waterville Teachers Assoc.,
No. 82-11.  The Union asserts that because the admitted breach of 
the ground rule was an isolated incident, there is no 
justification for a finding of bad faith.  We would be remiss if 
we were to dismiss the complaint simply because the breach was an 
isolated incident because such an approach implies that an 
isolated incident is, by definition, insignificant.  Our 
responsibility is to look at the totality of the circumstances:  
in this case, we must consider the specific facts regarding the 
breach of the ground rule and the circumstances surrounding that 
breach.  We must also consider the importance of the ground rule.
 
     Analytically, we consider a ground rule concerning 
disclosures of bargaining positions or tactics outside of 
negotiations, particularly to the press, to be substantively 
different than other types of ground rules.  We note that 
negotiating ground rules have never been held to be a mandatory 
subject of bargaining.  See, Sanford Firefighters, Local 1624, 
IAFF v. Sanford Fire Commission, No. 79-62 at 6-7 (Dec. 5, 1979) 
(negotiation ground rules are "probably not" a mandatory 
subject).  Furthermore, while very common and encouraged by this 
Board, ground rules are not universally adopted.  See, e.g., 
Minot Education Assoc. v. Minot School Committee, No. 96-27 at p. 
3 and p. 14, n. 6 (June 30, 1997); and Westbrook Police Unit v. 
City of Westbrook, No. 78-25 at p. 4 (Sept. 5, 1978).  We also 
note that not every ground rule on media contact bans all 
disclosures at all times.  Some parties may agree that after a 
specified time or event (such as completion of mediation), their 
restrictions on disclosures to the media are lifted; some parties 
limit press contact to joint statements; and others may require 
advance notice to the other party before a statement to the press 


[end of page 9]


can be made.  If the parties prefer to negotiate in closed 
session, that is their right.  If the parties prefer to negotiate 
in open session, that is their right as well.  The important 
point is that the parties' negotiations strategies and tactics 
may differ significantly depending on the nature of their 
agreement on what, if any, information can be released as 
negotiation progresses.  A rule limiting disclosure outside of 
negotiations goes to the very heart of the bargaining process.
 
     Maine's law on whether collective bargaining can be 
conducted in public meetings states clearly, 
 
     . . . Negotiations between the representatives of a 
     public employer and public employees may be open to the 
     public if both parties agree to conduct negotiations in 
     open sessions.  
 
1 M.R.S.A.  405(6)(D).  While this statutory provision is from 
the Freedom of Access Law, it was enacted in 1975, not long after 
this Board's decision in Quamphegan Teachers Association v. SAD 
No. 35, No. 73-05 (April 20, 1973). There, the Board addressed 
the issue of whether a party could insist that negotiations 
sessions be held in public and concluded that such insistence did 
not constitute good faith bargaining.  The Board held that the 
subject was not a mandatory subject of bargaining and explained 
that:
 
     [It is] our belief that the use of a stenographer, 
     recording device, or presence of the press and public 
     to report the happenings of a negotiation session or to 
     create a verbatim transcript of that meeting 'does tend 
     to encourage negotiators to concentrate upon and speak 
     for the purpose of making a record rather than 
     directing their efforts towards a solution of the      
     issues before them.'
 

[end of page 10]


Quamphagan Teachers, No. 73-05 at 6, quoted in MSAD #24 v. Van 
Buren Custodian/Bus Driver/Maint. Assoc., No. 79-16 (March 27, 
1979).  Clearly, it is has been the law for decades that the 
default starting point for collective bargaining is for it to 
occur in closed sessions, unless the parties agree otherwise.  
 
     The statutory impasse-resolution procedures in the 
collective bargaining statute recognize that as the parties 
continue beyond mediation, through fact finding and to interest 
arbitration, the utility of public pressure increases.  Mediation 
sessions are strictly confidential[fn]1 and fact-finding sessions may 
only be public if all the parties and all the fact finders agree 
to have it public.  MLRB Rules Ch. 13  31.  Once the fact-finding 
panel's report is submitted to the parties, the report may not be 
made public for 30 days unless the parties agree.  After 30 days, 
if the parties have not resolved the controversy, the Board's 
executive director or either party may make the report public. 26 
M.R.S.A.  965(3)(C).  If the dispute goes on to interest 
arbitration,the statute requires an even faster public 
disclosure of the report.  26 M.R.S.A.  965(4)(par. 4).  All of 
these steps in the statutory impasse-resolution procedures are 
part of negotiation.  They all reflect the legislative 
recognition that as the parties' controversy continues, the need 
to engage the public in the discourse increases and the required 
disclosure may help by enabling informed public pressure. 
 
     We review these provisions allowing, but not requiring, the 
parties to bargain in closed sessions because the ground rule in 
question embodies the parties' agreement on how public they want 
their bargaining to be.  The violation of this ground rule is a 
serious breach.  When both sides are proceeding from the start of 


[fn]1  During mediation, any disclosure made to a mediator is privileged


[end of page 11]


bargaining on the assumption that the press will not be part of 
the process, a sudden disclosure of the type here can profoundly 
alter the dynamics of the bargaining process.  On the other hand, 
if the decision had been made to allow contacts with the press 
from the start, each party would factor that dynamic into their 
bargaining strategy and tactics.  
	

     Upon reviewing the record before us, we conclude that 
Mr. Peary's conduct in contacting the press was a deliberate act, 
taken with knowledge of the existence of the ground rule, which 
incuded detailed information about the parties' bargaining 
positions, and was made with the intent to put public pressure on 
the Employer.  The disclosure to the press was a flagrant 
violation of the ground rule made with the intent of 
substantially altering the dynamics of the bargaining process 
that the parties had agreed upon.  
 
     At the time of the email to the newspaper, Mr. Peary was the 
president of the Union and had been a member of the bargaining 
team since the parties agreed upon the ground rules and began 
negotiations.  The parties had been negotiating for several 
months, had participated in mediation sessions, and were in the 
process of selecting a fact-finding panel.  Mr. Peary's first 
email to the Union's labor consultant asked only how things were 
going.  This may have been an effort to initiate a conversation 
in which Mr. Peary could inquire about the status of the ground 
rule barring contact with the media.  In any event, the email 
Mr.Peary sent to Mr. Bourgault two days later[fn]2 indicated that he 
knew of the ground rule and had a concern that it was still in 
effect.  


26 M.R.S.A.  965(2)(G).  
 
[fn]2  As well as the message he left for Mr. Bourgault (presumably a 
telephone message).


[end of page 12]

 
     Mr. Peary could have, and should have, either waited for a 
response from Mr. Bourgault or contacted Richard Green, the 
regional vice president for the IAFF, who was also a bargaining 
team member.  This was not a situation where he was cornered by
the press and badgered into an inadvertent disclosure.  Mr. Peary 
initiated the contact with the press in order to generate 
publicity.  Mr. Peary could have waited to discuss the matter 
with Mr. Bourgault or Mr. Green, but he chose not to.
 
     The level of detail Mr. Peary provided to the Bangor Daily 
News also indicates the seriousness of the breach because it goes 
to the heart of the ban and provides compelling evidence of his 
intent to disrupt the agreed-upon process.  His disclosure gave 
the details of the three remaining issues on the table, and was 
not merely a general assertion that the Town should be pressured 
to come to an agreement.  By providing the details of the issues 
in dispute, and accusing the Town of being unfair, he tried to 
use public opinion to sway the bargaining process in the Union's 
favor.  Mr. Peary added weight to his arguments by signing the 
email as president of the Union.  The timing of the disclosure 
adds to the seriousness of the breach as well, as it occurred 
before the parties had even started fact finding and well before 
the time the statute authorizes the release of the fact-finding 
report.  Mr. Peary's contact with the press was deliberate and 
made with the intent to bring public pressure on the Employer to 
alter its bargaining position in direct contravention of the 
purpose of the ground rule.  Peary's use of the media to place 
pressure on the town destroyed the trust between parties that is 
fundamental to good faith bargaining.  Such an action undermines 
the basic integrity of the bargaining process.


[end of page 13]

	 
     The Union argues that the Board should not find a violation 
in this case because Mr. Peary was disciplined for his contacting 
the press and because the parties were ultimately able to reach 
an agreement.  Neither argument is convincing.  Mr. Peary was 
disciplined for violating the employer's code of conduct and 
email policy, not for violating the negotiation ground rule.  
Even if the Employer had the authority to discipline Mr. Peary 
for his violation of the negotiating ground rule, that would have 
no bearing on this Board's authority to find a violation of the 
law.  With respect to the ultimate ratification of a successor 
agreement, this Board has repeatedly held that a charge of 
failing to bargain in good faith is not rendered moot by the 
subsequent execution of a collective bargaining agreement.  
Teamsters Local Union No. 48 v. City of Bangor, No. 79-29 
(Interim Order) at 1-2 (March 2, 1979), cited in MSEA v. State of 
Maine, No. 84-17 at 2, n.1 (July 17, 1986).
       
     In summary, we conclude that the conduct of the Union 
President in contacting the press was a deliberate act, taken 
with knowledge of the existence of the ground rule, which 
included detailed information about the parties' bargaining 
positions, and was made with the intent to the put public 
pressure on the Employer.  The disclosure to the press was a 
flagrant violation of the ground rule made with the intent of 
substantially altering the dynamics of the bargaining process 
that the parties had agreed upon.  After considering the totality 
of the circumstances, including the nature of the breach and the 
importance of that particular ground rule to the bargaining 
process, we conclude that the Union violated 965(1)(C) by failing 
to bargain in good faith.
 

[end of page 14]


                             ORDER

     On the basis of the foregoing findings of fact and 
discussion, and by virtue of and pursuant to the powers granted 
to the Maine Labor Relations Board by the provisions of 26 
M.R.S.A.   968(5), it is hereby ORDERED that the IAFF, Local 3106 
Orono Fire Fighters cease and desist from failing to bargain in 
good faith by failing to comply with the negotiating ground rule 
ageed upon with the Town of Orono in March of 2010 regarding 
disclosures to the press. 


Dated at Augusta, Maine, this 11th day of August, 2011.


 

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

MAINE LABOR RELATIONS BOARD

Barbara L. Raimondi, Esq.
Chair

Carol B. Gilmore
Employee Representative

Richard L. Hornbeck, Esq.
Employee Representative

 

[end of page 15]