STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 15-11
Issued: February 18, 2015

Teamsters Union Local 340,
Complainant

v.

Cumberland County Commissioners,
Respondent.

 

DECISION AND ORDER

 

	 Teamsters Local Union 340 filed a prohibited practice 
complaint with the Maine Labor Relations Board on September 3, 
2014, alleging that the Cumberland County Commissioners refused 
to bargain in good faith in violation of  964(1)(E) of the 
Municipal Public Employees Labor Relations Law (the "Act").  
Specifically, the Union alleges that the County refused to 
bargain over subcontracting during negotiations for a successor 
agreement.  The County filed a counter-complaint alleging that 
the Union violated  964(1)(E) by refusing to continue bargaining 
unless the County agreed to its subcontracting proposal.
  	
	An evidentiary hearing was held on January 20, 2015, with 
the Union represented by Teamsters Business Agent Lorne Smith, 
and the County represented by Alyssa C. Tibbetts, Esq.  Chair 
Katharine I. Rand presided at the hearing, with Employer 
Representative Robert W. Bower, Jr., and Employee Representative 
Amie M. Parker serving as the other two Board members.  Both 
parties were able to examine and cross-examine witnesses, to 
offer documentary evidence at the evidentiary hearing, and to 
provide oral argument at the close of the hearing.  After some 
discussion, the parties were given 10 days in which to submit a
post-hearing brief, though the Chair made it clear that it was

 
[end of page 1]


not required.  The Union elected not to file a post-hearing 
brief, and the County submitted its brief on January 30, 2015. 
       
 
                          JURISDICTION

 
     Teamsters Local Union 340 is a bargaining agent within the 
meaning of 26 MRSA  962(2), and Cumberland County is the public 
employer within the meaning of 26 MRSA  962(7).  The jurisdiction 
of the Board to hear this case and to render a decision and order 
lies in 26 MRSA  968(5). 

                              FACTS


1.  Teamsters Union Local 340 is the certified bargaining agent 
    for the bargaining unit of Cooks at the Cumberland County 
    Jail.  The most recent collective bargaining agreement 
    between the parties was effective from July 1, 2012 to June 
    30, 2014.  The expired collective bargaining agreement does 
    not contain any language addressing the issue of 
    subcontracting. 
 
2.  Several times over the past few years, the County Manager had 
    considered the possibility of contracting out the Jail's food 
    services.  On each occasion, the Cooks and other members of 
    County's Jail department made their case to the Commissioners 
    who decided to keep the work in-house.

3.  At some point prior to the parties' first negotiating 
    session, the County Manager and Jail Administrator developed 
    an RFP for food services at the Jail, but by early July had 
    decided not to pursue it.


[end of page 2]


4.  The parties met on July 24, 2014, for their first bargaining 
    session to negotiate a successor agreement. The Employer 
    proposed a set of negotiating ground rules which were 
    discussed but not accepted by the Union.  The Union presented 
    its financial proposals regarding wage and stipend increases 
    and proposed the following language on subcontracting: 

          Management shall maintain the right to establish 
          contract or subcontracts for operations, provided 
          that this right shall not be used for the purpose 
          or intention of undermining the Union or 
          discriminating against its members.  The type of 
          work customarily performed by the employees in the 
          bargaining unit shall continue to be so performed.

5.  The Union's handwritten notes of the July 24, 2014, 
    bargaining session state:[fn]1 
 
       *  Union goes over its proposals.
       *  Subcontracting Big Issue.
       *  County Manager feels there is Savings to 
          Contracting out Food Services.
       *  County Not interested in putting language in the 
          contract. We stated this was a big issue for the 
          members, because of the many attempts to 
          subcontract.

6.  The issue of subcontracting was a very big issue for the 
    members of the bargaining unit.  The Shop Steward testified 
    that in conversations outside of negotiations, the Sheriff 
    and the Chief Deputy were supportive of the Cooks' concerns.  
    They had both indicated that if the food service were 
    contracted out, they would transfer the displaced cooks to 
    the extent there were open positions available.  The Union 
    was concerned that there might not be enough open positions 


1 The Union's handwritten notes of the three bargaining sessions were 
admitted without objection, but little or no reference was made to 
them during testimony.


[end of page 3]


    for all of the cooks and consequently wanted written 
    assurances of job security in the collective bargaining 
    agreement.
 
7.  Ms. Wanda Pettersen, the Employer's Human Resources Director, 
    was a member of the County Commissioners' bargaining team.  
    She testified that there was extensive discussion during the 
    July meeting about the types of language that the County 
    would consider, and about how other employers and some state 
    agencies handled the issue.  She testified that the County's 
    stated position at this meeting was that they were not 
    willing to agree to the language that the Union proposed for 
    inclusion in the collective bargaining agreement.

8.  The parties met for their second negotiating session on 
    August 5, 2014.  At that time, the County responded to the 
    Union's financial proposals from the prior meeting and 
    indicated that they were not interested in incorporating sub-
    contracting language into the agreement.  

9.  At this second negotiating, Mr. Lorne Smith, the Union 
    Business Agent, presented the following revised language for 
    the proposed subcontracting article:

        Nothing in this contract shall be interpreted as 
        limiting the right of the Cumberland County 
        Commissioners to subcontract work, except that 
        such subcontracting shall not cause the discharge 
        or layoff of any member of the bargaining unit.

    Mr. Smith also presented the County with a copy of a decision 
    of the Maine Law Court which stated that the impact of 
    subcontracting on unit members' employment was a mandatory 


[end of page 4]


    subject of bargaining.  The County did not dispute that 
    subcontracting was a mandatory subject of bargaining. 

10. As indicated in Employer exhibit #1, several proposals were 
    initialed as tentatively agreed to during this August 4, 
    2014, negotiating session, such as the starting date of 
    medical insurance coverage for new hires.

11. Ms. Pettersen testified that she presented the Union's 
    revised subcontracting language to the County Commissioners 
    before the next negotiating session.

12. At the third session on August 19, 2014, Ms. Pettersen 
    explained to the Union bargaining team that the Maine Board 
    of Corrections ("BOC") had the statutory authority to dictate 
    certain matters regarding the operation of the county jail.  
    She stated that the County could not prohibit the 
    subcontracting of food services, that their hands were tied 
    by the BOC's authority.  Mr. Smith asked if the BOC were in 
    charge, why wasn't it at the bargaining table?

13. Chief Deputy Gagnon spoke at length at this third meeting 
    about his and the Sheriff?s concern for the future of the 
    Cooks if the County or the BOC decided that subcontracting 
    was necessary.  He indicated that the Sheriff felt 
    responsible for finding other positions in the jail system 
    for any cooks affected by subcontracting, if indeed it did 
    occur.  The County was not willing to agree to language that 
    would prohibit layoffs resulting from subcontracting.  In 
    response, Mr. Smith indicated that was "not acceptable" and 
    told the County's bargaining team that meeting was over and 
    the Union was "taking it to the next step."


[end of page 5]


14. Because the last negotiating session ended abruptly, the 
    County was unable to present its financial package of 
    proposals to the Union.  Ms. Pettersen and other members of 
    the County's bargaining team testified that they thought the 
    Union was going to request mediation.


                               DISCUSSION


     Section 964(1)(E) and  964(2)(B) prohibit the employer and 
the bargaining agent from refusing to bargain collectively with 
the other party as required by  965.  Section 965 is a very 
lengthy provision detailing the mutual obligation to bargain, 
starting with negotiations ( 965, sub- 1), then, if necessary, 
through mediation ( 965, sub- 2), fact-finding, ( 965, sub- 3), 
and finally interest arbitration ( 965, sub- 4). 
 
     The subsection describing negotiations,  965(1), defines the 
mutual obligation to bargain collectively, and states:
      
     1. Negotiations.  It is the obligation of the public employer 
     and the bargaining agent to bargain collectively. "Collective 
     bargaining" means, for the purposes of this chapter, their 
     mutual obligation: 

      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, as long as the parties have not 
      otherwise agreed in a prior written contract. This 
      obligation is suspended during the period between a 
      referendum approving a new regional school unit and the 
      operational date of the regional school unit, as long as the 
      parties meet at reasonable times during that period; 

      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 
      may be compelled to agree to a proposal or be required to 
      make a concession and except that public employers of 


[end of page 6]


      teachers shall meet and consult but not negotiate with 
      respect to educational policies; for the purpose of this 
      paragraph, educational policies may not include wages, 
      hours, working conditions or contract grievance arbitration; 

      D. To execute in writing any agreements arrived at, the term 
      of any such agreement to be subject to negotiation but may 
      not exceed 3 years; and 

      E. To participate in good faith in the mediation, fact-
      finding and arbitration procedures required by this  
      section.[fn]2
 

     The gist of the Union's complaint is that the County 
violated the Act by refusing to put "any language" in the 
agreement concerning subcontracting.  The Union argues that the 
County refused to bargain by not offering any counterproposals on 
the subcontracting issue and refusing to put in writing any 
assurances that Cooks would be transferred to other positions in 
the jail if the food services were contracted out.  The statutory 
obligation to bargain, however, expressly states that "neither 
party may be compelled to agree to a proposal or be required to 
make a concession."  26 M.R.S.A.  965(1)(C).  A holding that the 
County must make a counterproposal on one particular item, or 
must agree to include language on a mandatory subject that the 
Union feels strongly about, is equivalent to compelling it to 
agree to a proposal or make a concession.  
 
     It is important for both parties to understand that whether 
a party has failed to bargain in good faith involves the 
assessment of many factors simultaneously.  The analysis used by 
this Board is well-established:

     A bad faith bargaining charge requires that we 
     examine the totality of the charged party's conduct 


2 Section 965(1) ends with a paragraph describing the 120-day notice 
requirement when the Union's proposals will require appropriations, a 
provision that is not at issue here.


[end of page 7]


     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 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 
     counter-proposals, 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.

     Here, the "totality of the circumstances" analysis is not a 
very extensive task because the parties had only three negoti-
ation sessions.  Nonetheless, the evidence is that during the 
three meetings, the County made some proposals and counter-
proposals, explained its positions on various issues, and was 
prepared to present further proposals when the Union ended the 
third meeting.  The County's conduct demonstrated a sincere 
desire to reach an agreement.  The fact that the County did not 
offer a counterproposal on one particular item is not a violation 
of the Act.  To conclude otherwise would be inconsistent with 
both the totality of the circumstances analysis and the express 
language in  965(1)(E) that "neither party may be compelled to 
agree to a proposal."  The Union's complaint must therefore be 
dismissed.[fn]3
      

3 We also reject the Union's assertion that if the Board of 
Corrections had the authority to subcontract food services, the County 
violated the Act by not have the BOC at the table with them.  There is 


[end of page 8]
      
       
     We now turn to the Employer's counterclaim that the Union 
violated the Act by leaving the meeting and refusing to continue 
bargaining unless the County bargained over subcontracting.  As 
noted above, the totality of the circumstances test applies 
unless the party's conduct "fails to meet the minimum statutory 
obligations or constitutes an outright refusal to bargain."  The 
evidence is clear that the Union negotiated over several issues 
but left the third bargaining session stating that they would not 
continue unless the County bargained over subcontracting, and 
that they were going to take the next step.  There is little 
additional evidence on this conduct, but most of those present 
(including the Union) thought this meant the Union would be 
filing for mediation.  There is no evidence in the record that 
the employer made any effort to resume negotiations after 
August 19, 2014.[fn]4  In the absence of evidence that the Union's 
conduct was more than negotiating bluster, we must dismiss the 
countercomplaint against the Union alleging a refusal to bargain 
in good faith.
      
     Likewise, there is no evidence that the Union failed to meet 
a minimum statutory requirement, such as honoring a 10-day letter 
requesting bargaining under  965(1)(B) or failing to execute 
agreements in writing as required by  965(1)(D).  Had the County 
made a formal request to bargain under  965(1)(B), and the Union 
had refused that request, that would clearly be a failure to meet 
the minimum statutory requirements and would be a per se 
      

no merit to this argument, as duty to bargain is imposed on the 
bargaining agent and the public employer, and the Board of Corrections 
is clearly neither.

4 The comments of the County's attorney and the Union's representative 
in closing arguments cannot be considered evidence received by the 
Board. See MSAD #43 Teachers Assoc. v. MSAD #43 Board of Directors, 
No. 79-42 at 4, (May 1, 1979)(Section 968(5)(C) prohibits the Board 
from relying on written briefs containing "facts" not in the record).


[end of page 9]
      
      
violation of the Act.  
       
      A request to meet within 10 days is not just for initiating 
bargaining, but can be used to force a party to the table in 
other situations, such as when they appear to be at impasse.  As 
this Board observed,
       
     . . . Our Legislature has expressly and unequivocally 
     stated in all [] of our labor relations laws that 
     parties are obligated to meet within ten days after 
     receipt of written notice.  This requirement has had a 
     positive effect on labor relations in Maine, as 
     experience has shown that parties frequently make 
     progress in negotiations when meeting pursuant to a 
     ten-day request, even when the parties previously were 
     at impasse.
      
MSEA v. State, No. 80-09 at 9 (Dec. 5, 1979)(Rejecting State's 
argument that 10-day request need not be honored when the parties 
were at impasse).[fn]5  
      
     Whether one of the parties picks up the phone or sends a 
formal 10-day letter requesting bargaining, it is clear to us 
that the parties should be back at the bargaining table, with or 
without the assistance of a mediator.  As we are dismissing both 
the complaint and the countercomplaint, we have no authority to 
order the parties to go back to the bargaining table, but that is 
clearly where they should be.  We trust that the parties will do 
so forthwith. 

5 For further discussion of the failure to meet within 10 days, see 
Washburn Teachers Assoc. v. Barnes and MSAD #45, No. 83-21, at 8 (Aug. 
24, 1983)(Finding a violation where the employer did not meet until 21 
days after receipt of the 10 day request) and East Millinocket 
Teachers Assoc. v. East Millinocket School Committee, No. 79-24 at 6 
(April 9, 1979)(Rejecting employer's claim that it had no duty 
to bargain during the term of an agreement and cautioning "Since a 
misunderstanding of the law [...] will not excuse the duty to meet, a 
party should therefore not lightly undertake the decision to refuse to 
meet when requested by a 10 day letter.").


[end of page 10]


                              ORDER


     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 MRSA  968(5), we hereby DISMISS the Complaint filed 
by the Teamsters Union Local 340 and DISMISS the Countercomplaint 
filed by Cumberland County.


Dated this 18th day of February, 2015.

 

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

[signed] Katharine I. Rand
Chair

[signed] Robert W. Bower, Jr.
Employer Representative

[signed] Amie M. Parker
Employee Representative