On May 19, 2016, the New England Police Benevolent Assoc-
iation ("Union" or "NEPBA") filed this prohibited practice 
complaint against the City of Caribou, alleging that the City 
violated 26 M.R.S. §964(1)(E) of the Municipal Public Employee 
Labor Relations Law ("Act").  Specifically, the Complaint 
alleges that the City failed to bargain in good faith by 
inserting into the tentative agreement, without notice to the 
Union, language that precluded the payment of the wage increase 
retroactive to the effective date of the agreement. 
      
     The Board held an evidentiary hearing on September 27, 
2017.  Peter J. Perroni, Esq., represented the New England 
Police Benevolent Association, and Ann M. Freeman, Esq., 
represented the City of Caribou.  Both parties were able to 
examine and cross-examine witnesses, offer documentary evidence, 
and were given the opportunity to provide written and oral 
argument.  Chair Katharine I. Rand, Esq., presided at the 


[end of page 1]


hearing, with Employer Representative Robert W. Bower, Jr., 
Esq., and Employee Representative Ms. Amie M. Parker.  


                           JURISDICTION
 
     The New England Police Benevolent Association is a 
bargaining agent within the meaning of 26 M.R.S. §962(2), and 
the City of Caribou is the public employer within the meaning of 
26 M.R.S. §962(7).  The jurisdiction of the Board to hear this 
case and to render a decision and order lies in 26 M.R.S. 
§968(5). 
 

                        FINDINGS OF FACTS

1.  The New England Police Benevolent Association and the City of 
    Caribou have negotiated collective bargaining agreements     
    since the NEPBA was certified as the bargaining agent in 
    2011. 
  
2.  In September of 2015, the parties had their first negotiation 
    session for a successor agreement to the one set to expire     
    on December 31, 2015.  At this meeting, the parties agreed 
    to ground rules, exchanged proposals and were able to come 
    to a tentative agreement on several issues.  Retroactivity 
    of pay increases was not an issue because it was assumed
    before the current agreement expired.

3.  Mr. Austin Bleess, the City Manager, was the lead negotiator 
    on the City's bargaining team, which also included the Chief     
    of Police.  Mr. Sean McArdle, the NEPBA representative for 
    northern New England, was the lead negotiator for the Union.


[end of page 2]

  
    Mr. Chad Cochran, the President of NEPBA Local 605, was also 
    on the bargaining team along with one other police officer.     
    Following the initial negotiating session, Mr.McArdle and 
    the other members of the negotiating team discussed the 
    proposals with the unit members.  There were a number of 
    issues identified and considered important by the membership 
    that still needed to be resolved.

4.  Mr. Bleess and Mr. McArdle attempted to address some of these 
    issues by email or telephone in October, but Mr. McArdle was     
    not satisfied, and told Mr. Bleess that he thought mediation 
    was the appropriate step to take.

5.  Sometime in November, the Union filed a request for mediation 
    with the Labor Relations Board and the parties scheduled     
    mediation sessions for February 1 & 2, 2016.  The issues 
    identified for mediation were wages, vacation and sick leave 
    banks, scheduling and duration of the contract.
 
6.  The parties met for mediation on February 1, 2016, and were 
    able to resolve several issues.  At some point during that 
    mediation, the Union raised the issue of retroactivity of 
    pay increases, an issue the members were anxious about 
    because the wage increase they received in the prior one-
    year agreement was not retroactive.  Mr. Bleess testified he 
    said the City Council's position had been that there would 
    be no retroactivity, but he would take it back to the 
    Council to see if they were willing to reconsider.  Both 
    Union officials testified that Mr. Bleess said he did not 
    think it would be a problem to get the Council's approval 
    because the retroactive payment would be for a short period 
    of time.

7.  After this first day of mediation, Mr. McArdle typed up a 


[end of page 3]


    draft Memorandum of Agreement (MOA) with language reflecting 
    the parties' agreement and emailed it to Mr. Bleess for his 
    review.  Mr. McArdle indicated that he would be giving a 
    presentation to the membership at 6:00 a.m. the following 
    morning prior to the second day of mediation.
  
8.  The draft MOA was 3 pages long (plus a signature page) and 
    only included changes to the collective bargaining agreement     
    that had expired on December 31, 2015.  The preface to the 
    MOA stated:

          ...in consideration of the mutual promises herein, the 
          Union and the City agree that the following changes 
          will be incorporated into the collective bargaining 
          agreement, subject to the required ratifications: 

    Each of the nine items listed in this draft MOA included an 
    introductory italicized phrase, such as "Change the fifth     
    paragraph to read as follows" or "Add a new section A1 to 
    read as follows."  There was no further indication or 
    explanation of how the changes differed from the existing 
    contract language.[fn]1

9.  The second item in the draft MOA was a revision to Article 8, 
    Section B, Hours of Work, Work Week, Wages, which began, 
    "Change the first sentence and wage scale to read as 
    follows":

          The base salary for each employee, for forty (40) 
          hours, shall be as follows for the period of 
          January 1, 2016 through December 31, 2018.

    The chart following that sentence had four columns, in which 
    the first lines contained the following information:

[fn]1 The expired agreement is not part of the record.


[end of page 4]

	1-Jan-15	1-Jan-16	1-Jan-17	1-Jan-18
		2 percent	2 percent	3 percent
Starting	$ 578.67	$ 590.24	$ 602.05	$ 620.11
1 Year	$ 651.45	$ 644.48	$ 677.77	$ 698.10
2 Years	$ 673.22	$ 686.68	$ 700.42	$ 721.43

  
(The rest of the chart extends down to show base salaries at 
  specified numbers of years of service.)


10. Later that evening, Mr. Bleess responded to Mr. McArdle's 
    draft MOA, with a cover email explaining his changes and the     
    City's reason for rejecting certain language.  His email 
    noted that his additions to the draft MOA were in red and 
    the pieces to be removed were struck through.  With respect 
    to Article 8, Section B, Mr. Bleess struck out the word 
    "base" in the sentence beginning "The base salary for each 
    employee."  Mr. Bleess also added a new sentence in red at 
    the beginning to the section which said, "For base pay 
    purposes 40 hours will be paid at straight time and 2 hours 
    will be at time and a half."

11. Mr. McArdle met with the Union membership at 6:00 a.m. on 
    February 2, 2016, to review the MOA and discuss the 
    outstanding issues.

12. The parties continued to bargain starting at 9:00 a.m. on 
    February 2, 2016, and ended at mid-day.[fn]2  By that time, there     
    were only a small number of open issues and the parties 
    agreed to draft up language to clarify their respective 
    positions. 

13. Mr. McArdle was out of state from February 4, 2016, through 
    February 9, 2016, though he was in some contact with the     
    mediator via text and phone.  Mr. Bleess was off work for 

[fn]2 The mediator was scheduled to mediate for the Fire Department 
bargaining unit that afternoon and the next day.


[end of page 5]


    parental leave during the last two weeks of February, 2016, 
    starting on or about February 12, but he was able to check and     
    respond to emails to a limited degree.  

14. On February 8, 2016, at 6:00 p.m., the City Council met for a 
    "Regular City Council Meeting."  The final item on the     
    agenda indicated the Council would meet in executive 
    session, as permitted by 1 M.R.S. §405(6)(D), to discuss the     
    negotiations with Teamsters Local Union No. 340[fn]3 and NEPBA 
    Local 605.
  
15. During the executive session on February 8, 2016, the Council 
    affirmed with the City Manager that they did not want to     
    provide retroactive pay increases.  The Council also 
    identified other items they wanted addressed, specifically 
    putting a cap on sick and vacation time accrual.  In 
    exchange for accepting the cap on the sick and vacation 
    accruals, the Council was willing to raise the annual 
    increases to base pay to 3.5%, 3.5% and 3% in the three-year 
    contract.
  
16. After the Council's evening meeting, Mr. Bleess made changes 
    to the existing draft MOA to incorporate the Council's     
    decisions.  Mr. Bleess felt that the proposal might be 
    better received by the Union if it were considered a 
    "Mediator's Proposal," rather than coming directly from the 
    City, as the mediator had shown success extending such 
    "trial balloons" before.  With this objective in mind, 
    Mr. Bleess wrote an email to the mediator, attaching his 
    suggested Memorandum of Agreement.  The MOA he sent at 10:47 
    p.m. on February 8, 2016, had the following note in the body 
    of the email:

[fn]3 Teamsters Local 340 represents the fire fighters' bargaining unit.


[end of page 6]


          The Council is willing to go for a 3.5%-3.5%-3% 
          pay increases if the unit accepts capping the 
          vacation and sick bank payouts. I'm attaching 
          the revised proposal here.

17. At 10:50 p.m., Mr. Bleess followed up with another email (and 
    attachment) to the mediator saying:
 
          I just realized I forgot the retro clause.  The 
          Council does not want to see retro in this case. 
          I've updated the document to reflect that.


18. The next day, Mr. Bleess spoke with the mediator on the 
    telephone about the City's proposal.  Mr. Bleess testified 
    that the mediator said he would "reach out" to Mr. McArdle.  
    Mr. Bleess testified that he was under the impression the 
    mediator was going to send the proposal to the Union that 
    day.[fn]4

19. The MOA attached to Mr. Bleess' February 8, 2016, email to 
    the mediator had some of the new portions highlighted, but 
    not all.  The sentence indicating that the wage increase was     
    not retroactive was inserted at the end of the introductory 
    paragraph of Section B, but it was not highlighted.  The 
    full paragraph now read:

        For base pay purposes 40 hours will be paid at straight 
        time and 2 hours will be at time and a half.[fn]5  The base 
        salary for each employee, for forty (40) hours, shall be 
        as follows for the period of January 1, 2016 through 
        December 31, 2018.  Wages for 2016 go into effect the
        first full pay period after both sides approve this 


[fn]4 There is conflicting evidence on whether the mediator discussed 
retroactivity with the Union after Mr. Bleess emailed the revised MOA 
to the mediator on February 8, 2016.

[fn]5 In the exhibit, this sentence was red, not bold.


[end of page 7]


        proposal. [6]

      In addition, the now-higher percentage increases in the top 
      row of the wage chart were not highlighted.

20. There is nothing in the record showing that the MOA revision 
    of February 8th was provided to any member of the NEPBA     
    bargaining team during the following few days, and the City 
    Manager did not have any discussion with the Union about it 
    that week.
  
21. At 4:50 p.m. on Sunday, February 14, 2016, Mr. Chad Cochran, 
    the NEPBA Local 605 President, sent an email to Mr. Bleess     
    stating:

        It was my understanding the council had some type of 
        proposal for us? Just wondering if you had a chance 
        to put something together so we could present it to 
        the unit for a vote.  The chief gave me some rough 
        idea but was wondering if it had been put into a 
        document.

22. Mr. Bleess responded to this request at 7:55 a.m. the next 
    day, February 15, 2016, by forwarding to Mr. Cochran the MOA     
    Mr. Bleess had provided to the mediator with the statement:
 
        I'm attaching the proposal. I sent it to [the 
        mediator] last Monday night, and he sent it along to 
        Sean on Tuesday. I'm surprised you haven't seen it 
        yet.  My apologies on that.  If you have questions 
        let me know.

    The MOA attached was the same one Mr. Bleess emailed to 
    the mediator on February 8, 2016 (the second, corrected     
    version).

23. On February 29, 2016, Mr. Bleess and Mr. McArdle exchanged 


[fn]6 The "proposal" refers to the MOA, which contained the proposed 
changes to the parties' previous collective bargaining agreement.


[end of page 8]


    emails resulting in final tentative agreement on the MOA.      
    During the preceding few days, they worked through language 
    on a trial period for the major change to the workweek 
    schedule, as well as changes to allow some degree of carry-
    over of sick and vacation accruals.
  
24. Mr. McArdle's final email on February 29, 2016, stated he 
    would take the MOA to the membership for ratification.  Both     
    parties ratified and executed (signed) the agreement at the 
    beginning of March, 2016.

25. Shortly after the newly-ratified contract was executed, 
    Mr.Cochran asked Mr. Breess when the retroactive piece of 
    the wage increase would be paid.  Mr. Breess said 
    retroactive payments were not in the MOA and referred Mr. 
    Cochran to the specific language in the Article 8, Section B 
    of the contract addressing the retroactivity issue.  It was 
    at this point that Mr. Cochran first learned that the City 
    would not be making the wage increase retroactive.
  
26. Mr. McArdle and Mr. Cochran both testified that when the 
    Union submitted the agreement to its membership for 
    ratification at the beginning of March, 2016, they and the 
    membership thought that the wage increase would be 
    retroactive to the beginning of January.  Both witnesses 
    testified that the membership would not have ratified the 
    contract had they known that retroactive pay was not 
    included and both felt the City had misled them. 
 
27. Mr. McArdle testified that because he was the one who 
    originally created the MOA that was being used as the 
    central document of the negotiations following February 1, 
    2016, he focussed his attention on the portions of the 
    document that were highlighted either with red ink, strike 


[end of page 9]


    through marks, or underlining.
  
28. Both Mr. Cochran and Mr. McArdle testified that they had seen 
    the new sentence in Article 8, section B, but thought it     
    meant something different.  They read, "Wages for 2016 go 
    into effect the first full pay period after both sides 
    approve this proposal" as meaning that that first pay period 
    would be the point at which the employees would see the 
    increased wages.  They did not interpret it to mean there
    would be no retroactive payment for hours worked since 
    January 1, 2016.
 
29. Between the time of first seeing the sentence at issue on 
    February 15, 2016, and the ratification of the MOA in early     
    March, the Union never asked the City Manager or any City 
    official for clarification on the meaning of the sentence.

30. At some point in March, 2016, the Union filed a grievance 
    over the failure to make the wage increase retroactive.  The     
    grievance was denied at Step 1 by the Chief of Police and 
    was denied at Step 2 by the City Manager.  The City Manager 
    showed Mr. Cochran a copy of the email sent to the mediator 
    on February 8, 2016, that referred to the City Council's 
    decision against making the pay increases retroactive.  The 
    grievance was not appealed to the next step. 
 

                           DISCUSSION
      
     The question before the Board is whether the City of 
Caribou violated §964(1)(E) of the Act when it inserted (without 
redlining) a sentence in the tentative agreement that made the 
negotiated wage increase effective after the execution of the 
agreement, while the Association thought the wage increase would 


[end of page 10]


be retroactive to the start of 2016.  Section 964(1)(E) 
prohibits "refusing to bargaining collectively" as required by 
§965, which obligates both parties to "confer and negotiate in 
good faith."  In this case, the question is, in essence, whether 
the City's insertion of the sentence at issue during the 
negotiation process without express notice to the Union 
constituted a refusal to bargain in good faith.
      
     Determining whether a party has bargained in good faith 
requires consideration of many factors, an analysis which the 
Board often refers to as the "totality of the circumstances" 
test.  This analysis considers the totality of the charged 
party's conduct, frequently described with the following:  

     . . . 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.
      
Waterville Teachers Assoc. v. Waterville Board of Education, 
No. 82-11 at 4 (Feb. 4, 1982).

     The record shows the City and NEPBA discussed retroactive 
payment of wage increases during the mediation session on 
February 1, 2016.  The union members viewed it as an important 
issue because the City had not agreed to make the wage increase


[end of page 11]


retroactive for the prior one-year agreement.  While there is a 
dispute about what the City Manager told the Union about the 
City Council's likelihood of approving retroactivity, it is 
clear that NEPBA knew that Mr. Bleess had to get the Council's 
approval.  The ratified MOA contained a sentence that made the 
2016 wage increase prospective only.  The Union argues the 
City's failure to expressly inform the Union negotiators of this 
added sentence and the City's failure to underline or otherwise 
highlight that new sentence in the MOA was bad faith bargaining.  
We disagree. 
      
     Applying the established standard cited above, we are 
unable to conclude that City failed to bargain in good faith as 
required by §965(1)(E).  The evidence the Union relies on to 
support its charge that the City failed to bargain in good 
faith, that is, the City led the union to believe retroactive 
pay would be approved and drafted the MOA with an intent to 
deceive the Union about the retroactivity issue, is not 
supported by the weight of the evidence. 
      
     We do not find that the failure to highlight the key 
sentence was intentional.  The City Manager credibly testified 
that the omission occurred because it was late at night and he 
was in a rush to send the mediator a corrected MOA that included 
the retroactivity issue.  Furthermore, the City Manager failed 
to highlight another revision, relating to the higher wage 
increases, which was favorable to the Union and appeared in the 
top row of the chart directly below the sentence at issue.
      
     Critically, both Union officials testified that they saw 
the new sentence before ratification, but did not think it 
precluded payments for wage increases retroactive to the first


[end of page 12]

 
of January.  Thus, to the extent the City Manager had intended 
to surreptitiously insert language into the agreement (which we 
have not found), he was not successful.  In light of the Union 
officials' testimony that they were aware of the language, this 
case is one of contract interpretation.  As the parties' 
agreement provides that matters of contract interpretation are 
subject to the grievance procedure, that is the forum in which 
to address the dispute.  This Board does not have jurisdiction 
to resolve grievances.  See, e.g., State of Maine v. MSEA,
499 A.2d 1228, 1239 (Oct. 29, 1985) (the MLRB has jurisdiction over 
prohibited practices complaints, but not over grievances.)
   
                 
                              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 M.R.S. §968(5), the complaint is dismissed. 
      
Dated at Augusta, Maine, this 22nd day of November, 2017.

               
	  

 

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