STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 15-14
Issued: January 5, 2016

AFSCME COUNCIL 93,
Complainant

v.

PENOBSCOT COUNTY
COMMISSIONERS,
Respondent.

 

DECISION AND ORDER

 

	  
	AFSCME Council 93, the bargaining representative for the 
Corrections Supervisory Unit, filed this Complaint on November 24, 
2014, alleging that Respondent Penobscot County Commissioners 
("County") violated 26 MRS  964(1)(E) of the Municipal Public 
Employees Labor Relations Law (the "Act") by failing to bargain in 
good faith over a change to the County's health insurance plan
that affected members of the Supervisory Bargaining Unit.  The 
dispute involves a health insurance plan that is provided to all 
County employees.
      
     A pre-hearing conference was held on April 2, 2015, with 
Chair Katharine I. Rand serving as the presiding officer.  
Throughout this proceeding Anna S. Fletcher, Esq., represented 
Complainant AFSCME Council 93, and John K. Hamer, Esq., repre-
sented the Penobscot County Commissioners.  The parties presented 
their respective positions on the Respondent's Motion to Join as 
Necessary Parties the agents for the five other bargaining units 
of County employees.  The motion was denied.  The Respondent also 
requested that the proceeding be deferred pending the outcome of 
the arbitration of a grievance regarding the County's authority to 

[end of page 1]

make the change to the health insurance benefit that is at issue 
in this prohibited practice complaint.  As the Complainant agreed 
that the outcome of the arbitration would have a bearing on the 
outcome of this case, the motion to defer was granted.  
      
     The final preliminary matter handled at the prehearing 
conference was the exchange and review of exhibits.  All of the 
Union's exhibits were also offered by the County, so those were 
admitted as joint exhibits.  The rest of the County's exhibits 
were admitted without objection.[fn]1  The Prehearing Conference 
Memorandum and Order was issued on April 13, 2015.
      
     The Board of Arbitration and Conciliation ("BAC") issued its 
arbitration decision on July 28, 2015.  In accordance with the 
terms of the Prehearing Order, the parties were then asked to 
present a statement of position on the relevance of the arbitra-
tion decision to the pending prohibited practice complaint.  Upon 
review of those statements, the BAC decision and the documentary 
evidence in the record, the Prehearing Officer suggested to the 
parties that they consider having the case decided on a stipulated 
record.  The parties agreed and submitted their joint stipulations
on October 8, 2015.  The parties also agreed upon a briefing 
schedule and all briefs were received by December 18, 2015.  
The Board met to deliberate this matter on December 30, 2015.  

                               STIPULATIONS

  1. Penobscot County is a public employer (hereinafter the 
     "County") and AFSCME is the bargaining agent for the 
     Sheriff's Department Supervisory Unit (hereinafter the 

[fn] 1  The Union objected to one County exhibit, but it was later withdrawn and 
replaced with the arbitration decision.

[end of page 2]

     "Union").  The applicable collective bargaining agreement is 
     provided in County Exhibit 1/Union Exhibit J-1 (hereinafter 
     the "CBA").

  2. Penobscot County provides health insurance to its employees 
     through a single employee group health insurance plan which 
     covers six bargaining units (including the Union) and non-
     unionized employees
.
  3. The other units are:  (1) AFSCME Council 93, as certified 
     collective bargaining representative of the Penobscot County 
     General Bargaining Unit; (2) AFSCME Council 93, as certified 
     collective bargaining representative of the Penobscot County 
     Sheriff's Office Corrections Line Unit; (3) AFSCME Council 
     93, as certified collective bargaining representative of the 
     Penobscot Regional Communications Center ("Dispatch") Unit; 
     (4) Fraternal Order of Police, Lodge 012, as certified 
     collective bargaining representative of the Penobscot County 
     Sheriff's Office Law Enforcement Supervisor Unit; and (5) 
     Fraternal Order of Police, Lodge 012, as certified 
     collective bargaining representative of the Penobscot County 
     Sheriff's Office Law Enforcement Line Unit.

  4. Union employees contribute to their health insurance 
     premiums in accordance with a percentage of the total 
     premium as set forth in Article 13 of the CBA (these 
     percentages are the same through all of the collective 
     bargaining agreements); the applicable percentage varies 
     depending upon what plan is chosen (single, employee and 
     child, employee and spouse, or family) and whether the 
     employee was hired before or after January 1, 2009.

  5. In the event of an increase in the insurance premium, an 
     employee's contribution increases in accordance with the 

[end of page 3]

     employee's respective percentage unless an annual increase 
     exceeds a cap, in which case the employee would pay a 
     portion up to the cap and the County would pay the balance.

  6. The cap is the same for the CBA and four of the other 
     collective bargaining agreements, but one collective 
     bargaining unit, the Corrections Line Unit, has a higher 
     cap.  These caps are negotiated separately.

  7. In the event of a decrease in the insurance premium, an 
     employee's contribution decreases in accordance with the 
     employee's respective percentage.

  8. The first paragraph of Article 13 of the CBA is the same as 
     Article 13 of the other five collective bargaining 
     agreements in pertinent part,  and provides as follows:

          ARTICLE 13 - INSURANCE AND RETIREMENT

          Health Insurance: The Employer may change health 
          insurance carriers or program without first having to 
          bargain with the Union so long as the coverage of the 
          new health insurance program would be comparable to the 
          existing program. The Employer shall communicate its 
          intention to do so and provide pertinent information to 
          the employees through the Healthcare Advisory Committee.

     See County Exhibit 1/Union Exhibit J-1, p. 22.

  9. On or about August 5, 2014 the Union sent a 120 days' notice 
     to bargain to William Collins, County Administrator for a 
     successor contract for the Penobscot County Supervisory Bargaining 
     Unit.

 10. On October 6, 2014, the first negotiations session was held; 
     ground rules were discussed and signed, a copy of which can 
     be found at County Exhibit 2/Union Exhibit J-2.

 11. The Ground Rules allow each party to present new proposals 
     for negotiation at any of the three meetings following the 

[end of page 4]

     meeting at which the ground rules were executed.

 12. The Union, through its Staff Representative and chief 
     negotiator Sylvia Hebert, presented a set of initial written 
     proposals; the County did not present a set of initial 
     written proposals but initiated a conceptual discussion of 
     several topics in advance of the next meeting, which in the 
     past has typically been the meeting at which the County 
     first presents new proposals.

 13. At the close of the October 6, 2014 meeting, the parties 
     agreed on a schedule of future meetings to include three 
     meetings scheduled to occur on November 10, 2014, November 
     18, 2014, and November 20, 2014.

 14. On October 17, 2014, County Administrator William Collins 
     informed the Healthcare Advisory Committee that CIGNA's 
     quote to continue the 2014 plan in 2015 would entail a 9.86% 
     premium increase (hereinafter the "Renewal Plan").

 15. All of the collective bargaining units, including the Union, 
     have representatives on the Healthcare Advisory Committee.  
     This Committee is advisory only and it is not mandatory that 
     members of the Union attend its meetings.

 16. The jail budget, which is controlled by the Department of
     Corrections rather than the County, has been flat-funded for 
     the past three years.

 17. While some increase was reasonably expected, CIGNA's quote 
     was for a 9.86% increase.

 18. Mr. Collins asked CIGNA for options that would not result in 
     a premium increase and CIGNA suggested an alternate plan 
     (hereinafter the "Current Plan") that was exactly the same 
     as the Renewal Plan except that it included an in-network 
     deductible. 

[end of page 5]

 19. The Current Plan would actually result in a 1.79% premium 
     decrease.

 20. The deductible would be $500 for the single plan and $1,000 
     for all other plans.

 21. Other than the deductibles, the Renewal Plan and the Current 
     Plan are the same; the medical services offered by the 
     Renewal Plan and Current Plan are the same.

 22. Later in the day on October 17, 2014, Mr. Collins also 
     notified the Union of the Healthcare Advisory Committee 
     discussion as stated in County Exhibit 3/Union Exhibit J-3.

 23. On October 28, 2014, Mr. Collins presented a recommendation 
     to the Penobscot County Commissioners to approve a change in 
     the employee group health plan which made no changes in the 
     coverage of the plan but which added a $500 deductible for 
     individual participants and a $1,000 deductible for covered 
     employees plus children, spouses or families.

 24. The County Commissioners deemed the Renewal Plan and the 
     Current Plan to be comparable and approved the                   
     recommendation.

 25. On October 29, 2014, the County notified the Union that the 
     commissioners elected to proceed with the Current Plan to 
     begin on January 1, 2015, and invited all collective 
     bargaining units to participate in joint impact bargaining 
     regarding the new deductibles as stated in County Exhibit 
     4/Union Exhibit J-4.
 26. The Union expressed its objection on November 2, 2014, as 
     stated in County Exhibit 5/Union Exhibit J-5 and the County 
     replied as stated in County Exhibit 8/Union Exhibit J-8.
 27. The bargaining committees of the Union and County met for 
     the scheduled first post-ground-rules bargaining session on 

[end of page 6]

     November 10, 2014.

 28. At this meeting Penobscot County responded to initial 
     proposals by Petitioner and advanced a number of its own 
     initial proposals, but the County did not then advance any 
     changes to the wording of Article 13.

 29. The parties bargained, caucused, and regrouped for further 
     bargaining in the period from about 10:30 a.m. to about 1:00 
     p.m.

 30. At about 1:00 p.m. the parties returned from caucus, and  
     Ms. Hebert asked whether the County would agree to refrain 
     from making any changes to the health insurance program 
     without first bargaining them with the Union, stating that 
     the change in the health insurance program was a mandatory 
     subject of bargaining.

 31. The County, through its chief negotiator Attorney McGuire, 
     indicated that the County intended to proceed with 
     implementation of the announced change in the County health 
     insurance program to go into effect on January 1, 2015, 
     subject however to the outcome of the joint effects or 
     impact bargaining process, citing the language of Article 13 
     of the Collective Bargaining Agreement.

 32. In response, Ms. Hebert announced that if that was the case, 
     a result the Union would not participate in further bar-
     gaining for a new collective agreement; Ms. Hebert canceled 
     the bargaining sessions previously scheduled for November 18 
     and November 20, and she and the Union negotiating team got 
     up from the bargaining table and left the room.

 33. To date, there has been no further contract bargaining.

 34. On November 20, 2014, the County sent correspondence to the 

[end of page 7]

     Union asking it to reconsider its position and to agree to 
     engage in joint impact or effects bargaining with the five 
     other units as stated in County Exhibit 9/Union Exhibit J-9.
 
 35. On December 1, 2014, the County again sent correspondence to 
     the Union asking it to reconsider its position and to agree 
     to engage in the joint impact or effects bargaining as 
     stated in County Exhibit 10.

 36. Joint impact bargaining was conducted on December 5, 2014.  
     The Union did not participate, but the Fraternal Order of 
     Police representing two other units did attend.

 37. As a result of the impact bargaining, the County implemented 
     a Health Reimbursement Arrangement ("HRA") that pays 50% of 
     an employee's deductible.  The HRA funds are applied to the 
     deductible first, so an employee would only begin paying a 
     deductible after the County paid for the first half, 
     equating to $250 for the single plan and $500 for all other 
     plans.

 38. The HRA as described in paragraph 37 applies to the Union 
     even though it did not participate in the joint impact 
     bargaining.

 39. The Current Plan took effect on January 1, 2015.

 40. AFSCME Council 93 filed a grievance on behalf of the 
     Corrections Line Unit alleging Penobscot County violated 
     Article 13 of the Corrections Line Unit CBA when the County 
     implemented the Current Plan.  The grievance was denied in 
     AFSCME, COUNCIL 93 and PENOBSCOT COUNTY SHERIFF'S 
     DEPARTMENT, 15-BAC-12, dated July 28, 2015.  See County 
     Exhibit 12.

 41. AFSCME Council 93 also filed a grievance on behalf of the 
     Supervisory Unit, but has elected not to proceed with that

[end of page 8]

     arbitration in light of AFSCME, COUNCIL 93 and PENOBSCOT 
     COUNTY SHERIFF'S DEPARTMENT, 15-BAC-12, dated July 28, 2015.
   
                               EXHIBITS

     The following exhibits were admitted into evidence at the 
Prehearing Conference[fn]2:

     J-1  CBA between Penobscot County and AFSCME Council 93, 
     Penobscot County Sheriff's Office Supervisory Unit

     J-2  Ground Rules dated October 6, 2014

     J-3  Email from Bill Collins to James Mackie, Sylvia Hebert, 
     and Sylvie Perry dated October 17, 2014
     
     J-4  Letter from Frank McGuire to Sylvia Hebert, Timothy 
     Farwell, Sylvie Perry, Jack Parlon, and James Mackie dated 
     October 29, 2014

     J-5  Letter from Sylvia Hebert to Frank McGuire dated 
     November 2, 2014

     J-6  Letter from James Mackie to Frank McGuire dated  
     November 10, 2014, for the Corrections Line Unit

     J-7  Letter from James Mackie to Frank McGuire dated  
     November 10, 2014, for the Dispatch Unit

     J-8  Letter from Frank McGuire to Sylvia Hebert, Sylvie 
     Perry, and James Mackie dated November 20, 2014

     J-9  Email string from Frank McGuire to Sylvia Hebert last 
     dated December 1, 2014, and first dated October 29, 2014

     County Exh. 10  Email string from Frank McGuire to Sylvie 
     Perry and Sylvia Hebert last dated November 26, 2014, and 
     first dated September 19, 2014

     County Exh. 11  Corrections Supervisory Unit Grievance 
     regarding health insurance dated November 13, 2014; Letter 
     from William Collins to Sylvia Hebert dated February 12,

[fn]2  The parties' stipulations contained an agreement to add the arbitration 
decision as Exhibit #12.

[end of page 9]

     2015; Letter from Sylvia Hebert to William Collins dated 
     February 18, 2015

     County Exh. 12  Arbitration Decision AFSCME, Council 93 and 
     Penobscot County Sheriff's Department, 15-BAC-12, dated 
     July 28, 2015.

     County Exh. 13  Penobscot County Memo dated January 12, 2015, 
     Re:  Health, Short, Long Term Disability, Life & AD & D, & 
     Dental Insurance Plan Changes and Health Reimbursement 
     Account

     County Exh. 14  Cigna Health and Life Insurance Co.:  Open 
     Access Plus, Coverage Period 01/01/2014 - 12/31/2014

     County Exh. 15  Summary of Benefits - Cigna Health and Life 
     Insurance Co., For - County of Penobscot, Choice Fund Open 
     Access Plus HRA Plan, 1/1/2014

     County Exh. 16  Cigna Health and Life Insurance Co.:  Choice 
     Fund Open, Access Plus HRA, Coverage Period 01/01/2015 - 
     12/31/2015

     County Exh. 17  Summary of Benefits - Cigna Health and Life 
     Insurance Co., For - County of Penobscot, Choice Fund Open 
     Access Plus HRA Plan, 1/1/2015

     County Exh. 18  Corrections Supervisor Spreadsheet

     County Exh. 19  Corrections Supervisor Insurance Spreadsheet

                            DISCUSSION

     The Board of Arbitration and Conciliation concluded that the 
County did not violate Article 13 of the collective bargaining 
agreement when it changed the insurance plan because the costs 
to the employees under the new plan, including the HRA funds paying 
the first 50 percent of the deductible, was comparable to costs 
that employees would have encountered under the old plan.  Exhibit 
12 at 8.  The Union's position following the issuance of the BAC 
decision was that the County bargained in bad faith by refusing to

[end of page 10]

bargain independently with the Corrections Supervisory bargaining 
unit over the impact of the new insurance plan, and the result of 
the impact bargaining was the factor that made the new plan 
comparable.  As stated in the Union's brief, "it is the limitation 
of the opportunity to bargain to joint impact bargaining with 
which the Union takes issue, and that the Union believes is bad 
faith bargaining." (Brief at 5.)

     We have carefully reviewed the stipulations and the record 
evidence and find no support for the Union's allegation that the 
County insisted on or required the Union to participate in joint 
impact bargaining, nor do we find any evidence that the Union 
demanded to bargain over the impact individually.  

     The letter Oct 29, 2014, from the County's attorney to each 
of the union representatives for the five bargaining units noted 
that although Article 13 of each collective bargaining agreement 
authorized the employer to change insurance plans, "the effect of 
impact of this change is a proper subject of effects or impact 
bargaining."  The wording of the letter does not include any 
requirement to participate, as the Union suggests, but is 
presented as an offer or invitation:

       We therefore offer to engage in effects or impact 
     bargaining .... Because this change affects employees 
     in all five bargaining units equally, as well as 
     unrepresented employees, we believe bargaining ... is 
     best accomplished jointly with representatives of the 
     five bargaining units. We invite you to participate.
     Exhibit J-4, p. 2. (emphasis added)

     Ms. Hebert, the AFSCME representative for the Supervisory 
Bargaining Unit, responded on November 2, 2014, stating that the 
Union considered that the new insurance plan was not comparable to

[end of page 11]

the then-current plan and therefore the change was not authorized 
by Article 13.  Exhibit J-5, p. 2.  In that letter, Ms. Hebert 
objected to the County's unilateral change to the plan:

     . . .[because] the County has not proposed any changes 
     to the health insurance plan at the table, I believe it 
     would be improper to accept an invitation for impact 
     bargaining over a unilateral change to the current 
     health insurance plan.
     Exhibit J-5, p. 2.  

As described in Stipulations 27 through 33, Ms. Hebert broke off 
negotiations for a successor agreement when the County stated that 
it would proceed with implementation of the change without 
bargaining over the change, other than the outcome of the joint 
impact or effects bargaining.

     In all of the subsequent emails and letters from the County 
attorney, the language used continued to be that of an invitation 
or an offer to joint impact bargaining, not a demand.  See Exhibit 
8, letter dated Nov. 20, 2014, ("I invited representatives of each 
of the bargaining units . . . to participate" at p. 1; "I would 
respectfully encourage you to reconsider [your] position [of 
refusing to participate] at p. 2; "We will proceed to schedule a 
first joint effects or impact bargaining with those units who wish 
to participate." at p. 2); See Exhibit 9, email dated Nov. 26, 
2014, p. 2-3 ("We have scheduled a joint effects bargaining 
session for Friday December 5 at 10:00 am.  We will bargain 
jointly with those of the Penobscot County bargaining units that 
choose to participate."); and See Exhibit 9, email dated Dec. 1, 
2014, p. 2 ("We hope you will reconsider and join us at the 
effects bargaining table, along with the other five units, to 
address the effect of this change.")

[end of page 12]
      
     The only statement in the record that might be viewed as more 
insistent is that portion of the County's November 20, 2014, 
letter to Ms. Hebert and the two other AFSCME representatives that 
states:

     However, if you do choose to refrain from participating 
     in effects bargaining, that is your decision.  We will 
     understand that decision to amount to waiver of the 
     opportunity to engage in effects or impact bargaining 
     as to the cost associated with the change."  
     Exhibit 8, p. 2.

This was followed by a statement that the County's "hope and goal 
is to arrive at agreement" in time to implement them concurrently 
with the new insurance program on January 1, 2015.  In any event, 
the employer can declare that it "will understand" a particular 
action to be waiver, but that does not make it so, as waiver is a 
legal issue to be determined by this Board.  The Union could have 
negated this claim of waiver simply with a demand to bargain 
impact.
      
     This brings us to the second critical evidentiary matter in 
this case, which is the absence of any evidence that the Union 
demanded to bargain over the impact of the change individually, 
rather than in a joint session as offered by the County.  Had the 
Union made a formal demand to bargain over the impact of the 
change, as contemplated by  965(1)(B), the County would have been 
obligated to meet within 10 days to bargain.  The Board's case law 
is clear on this point.  See, e.g., Local 1650, IAFF v. City of 
Augusta, No. 01-09 at 6 (Aug. 20, 2001)("[A] party is obligated to 
meet within ten days after receipt of written notice from the 
other party requesting bargaining.") and Kittery Employees Ass'n 
v. Eric Strahl, No. 86-23 at 8 (Jan. 27, 1987) (failure to meet 
within ten days is a per se violation of  964(1)(E)).
      
[end of page 13]
        
     The record indicates that the Union believed that one could 
not bargain over impact without jeopardizing the right to object 
to the underlying change to the insurance plan.  In an email dated 
December 1, 2014, Ms. Hebert wrote:
 
     [. . .] I believe it would be an injustice to my members to 
     participate in any "impact bargaining" that could be mis-
     interpreted as an recognition/acceptance of this change in 
     health insurance without a proposal from the County to make 
     these changes to the current health insurance plan.
     Exhibit 9, p. 2[fn]3
      
The "misinterpretation" Ms. Hebert referred to is the possibility 
that the County would interpret the Union's participation in 
impact bargaining as an abandonment of the Union's assertion that 
the City must bargain the change to the plan itself.  It is well-
established law that the obligation to bargain over the impact of 
a change on wages, hours and working conditions is a subject that 
is legally distinct from the duty to bargain over the change 
itself.  See, e.g., City of Bangor v. AFSCME, 449 A.2d 1129 1135 
(Me. 1982)(Waiver of right to bargain over decision to discharge 
did not include waiver of right to bargain over the impact of that 
discharge, such as severance pay).  The Union could have fore-
closed this "misinterpretation" leading to an argument of waiver 
by preserving its right to contest the legality of the other 
party's stance while engaging in impact bargaining.  See, e.g., 
Caribou School Dept. v. Caribou School Assoc., 402 A.2d 1279, 
1281-82, fn. 4 (June 19, 1979)(Caveat in collective bargaining 
agreement preserving right to contest validity of duration clause) 
and SAD #22 Non-Teachers Assoc'n v. SAD #22 Board of Dir., No. 79-32
(July 30, 1979) (Indicating final provision in agreement will

[fn]3  See also Ms. Hebert's letter of November 2, 2014 ("it would be improper to 
accept an invitation for impact bargaining over a unilateral change to the 
current health insurance plan.")  Exhibit 5, p.2. 

[end of page 14]

depend on Board's ruling on legality of provision on citizen 
ratification of agreement).  The Union could have preserved its 
right to contest the County's change while engaging voluntarily in 
impact bargaining as part of the joint session, or demanding to do 
so individually, as is their right, or as part of negotiations for 
a successor agreement, but it did not do so.

     The Complainant has failed to demonstrate that the County 
failed to bargain in good faith.  The Complaint is dismissed.

                               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 MRS  968(5), it is ORDERED: 

     That the prohibited practice complaint, filed on 
     November 24, 2014, in Case No. 15-14, be and hereby 
     is dismissed.

Dated at Augusta, Maine, this 5th day of January 2016.
	 		

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

Katharine I. Rand

Chair

Robert B. Bower, Jr.

Employer Representative

Robert L. Piccone

Employee Representative

[end of page 15]