STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-62
_________________________
)
SANFORD FIRE FIGHTERS )
ASSOCIATION, LOCAL 1624 )
I.A.F.F., AFL-CIO, )
)
Complainant. )
)
v. )
)
SANFORD FIRE COMMISSION, ) DECISION AND ORDER
)
and )
)
CHARLES ACKERMAN, )
)
Respondents. )
_________________________)
The Sanford Fire Fighters Association, AFL-CIO, (hereafter "Association")
filed this prohibited practice complaint on April 30, 1979. The Sanford Fire
Commission (hereafter "Commission") and Charles Ackerman filed a response. A
pre-hearing conference was held on May 30, 1979, by Alternate Chairman Donald W.
Webber, who issued a Pre-Hearing Conference Memorandum and Order dated June 5,
1979, the contents of which are incorporated herein by reference.
The matter was heard by the Maine Labor Relations Board (hereafter "Board")
on August 14, 1979, Chairman Edward H. Keith presiding, with Wallace J. Legge,
Employee Representative, and Don R. Ziegenbein, Employer Representative. The
Association was represented by George F. Woods, Esq., and the Commission by
Charles Ackerman. A motion to withdraw count number VII of the complaint was
granted with prejudice over objection of the Commission. At the close of the
hearing there was oral argument and the parties chose to waive the filing of
briefs.
JURISDICTION
Jurisdiction of the Board to hear and decide this case lies in 26 M.R.S.A.
968(5).
FINDINGS OF FACT
1. Complainant Association is the recognized bargaining agent for all
full-time fire fighters of the Fire Department of the Town of San-
ford, up to and including the rank of Captain (approximately 25
employees). 26 M.R.S.A. 962(2). Respondent Fire Commission is a
public employer of these employees. 26 M.R.S.A. 962(7). Respond-
ent Ackerman is a person acting on behalf of the Commission and is
a public employer. 26 M.R.S.A. 962(7).
[-1-]
________________________________________________________________________________
2. The parties have had a collective bargaining relationship for at
least ten years. The most recent collective bargaining agreement
was effective for the calendar years 1977 and 1978 (hereafter "the
Agreement"). Among its thirty-six articles, the Agreement includes
the following pertinent ones:
Article I DEFINITIONS: Contains agreements relating to
work hours, procedures for filling vacancies, and shift
personnel level;
Article 3 RULES AND REGULATIONS: provides for Association
input to work regulations and posting requirements;
Article 6 UNION DUTIES: provides for time off with pay for
Association officers for negotiation sessions and for local
union meetings and provides time off without pay for regional
or national union meetings; also provides for local union
meetings on Town property;
Article 7 DUES DEDUCTION AND AGENCY SHOP: "agency shop" and
dues deduction clause, provides for the deduction of union
dues upon signed authorizations and that signing such deduc-
tions is "a condition of continued employment";
Article 31 PRACTICES: provides for the continuation of past
practices enjoyed by the Association;
Article 33 NO STRIKE CLAUSE: prohibits a strike and provides
for dismissal without recourse;
Article 35 GRIEVANCE AND ARBITRATION: provides a procedure
for "[a]ny dispute which arises between the parties concern-
ing the application, meaning or interpretation of" the Agree-
ment, including arbitration.
3. As the end of the 1977-78 Agreement term approached, the Commission's
sole spokesman in the upcoming negotiations, Labor Consultant Charles
Ackerman, delivered a letter to Union President Leon Currier on July
27, 1978, stating: "As of this date, the Sanford Fire Commission
shall no longer authorize the deduction of dues." The letter claimed
that such deductions under Article 7 would be unlawful. A decision of
the Maine Supreme Judicial Court in Churchill v. S.A.D. #49 Teachers
Association, 380 A.2d 186 (Me. 1977), had indeed found a similar pro-
vision unlawful. The decision had issued on November 18, 1977. The
letter indicated that the Commission would be willing to consider deduct-
ing dues again if the Association would drop the condition-of-employment
language.
4. All the employees in the unit filed a voluntary request with the Commis-
sion to continue the deductions on August 14, 1978, to no avail. The
Association proceeded to arbitration over its grievance concerning the
refusal to deduct and obtained an award, dated November 27, 1978, up-
holding its claim and directing the Commission both to begin deducting
dues again and to confer with the Association regarding an equitable
settlement for the period of refusal. The Commission did not comply
The award was confirmed by an order of the Superior Court, York County,
on April 25, 1979.
5. The first negotiation meeting for a new collective bargaining agreement
took place on August 29, 1978. The Association began by proposing nego-
tiations procedures agreements (or "ground rules"). The use of written
ground rules is a routine matter in public sector bargaining in Maine and
is highly desirable. These parties had always used them in the past ten
years of negotiations and the Association had its attorney assist them in
drawing up a written proposal based on these past rules.
-2-
________________________________________________________________________________
6. When the Association negotiator passed the ground rules across the
table to Ackerman, he glanced at them, tossed them back across the
table, and stated that he did not want any ground rules and that he
would follow state law. Association President Currier felt that
this was like a slap in the face. There was no further discussion
on this point. Ackerman testified at the hearing that he believes
ground rules are not mandatory subjects of bargaining and that he
would not agree to any.
7. The Association then proposed that the 1977-78 Agreement be extended
past its termination date of December 31, 1978, in the event that a
new agreement had not been reached by that time. Ackerman also cate-
gorically rejected the idea.
8. The next negotiation session took place on September 12, 1978. The
Association presented its initial contract proposals in the form of
proposed changes in the 1977-78 Agreement and explained each of the
changes. Ackerman responded to none of the Articles except for the
proposal to delete the no-strike article. On this point he agreed
to the proposal simply on the grounds that he is personally opposed
to such provisions on principle. Ackerman again indicated that the
1977-78 Agreement would not be extended and then left the meeting.
9. The next day, September 13, 1978, Attorney Wood wrote a letter to
Ackerman. Wood expressed his concern that the Commission might use
the threat of contract expiration without extension in late December
as an "unfair" pressure tactic.
10. There was a third negotiation session; nothing of significance took
place.
11. On November 19, 1978, the parties met for the fourth time. Ackerman
presented the Commission's first set of proposals; it was denominated
"FINAL POSITION FOR 1979 CONTRACT." It also stated: "The Commission
reserves the right to add, to delete from or withdraw in its entirety
this position any time prior to final ratification by the Commission."
Overall, the proposal was clearly less economically favorable to the
Association then the 1977-78 Agreement. Wood asked him: "Can't we
do business?" Ackerman responded "No" and that this was a final offer.
At the hearing Ackerman explained that this was simply a tactic and
that he actually intended it as a first of many "final offers." The
Association negotiators, however, were justifiably unaware of this
explanation and believed that this was a final offer, non-negotiable
at that time. Ackerman did nothing to dissuade the Association from
this impression. The Association was forced to turn to mediation on
essentially the entire contract; it did so. There had been no signi-
ficant negotiation.
12. On December 1, 1978, President Currier was demoted by the Fire Chief
from Captain and transferred to another station for allowing the men
under him to take an unauthorized break on November 28, 1978. He had
had a perfect disciplinary record over 17 years of service. This
action was grieved and was held by an arbitrator to be a contract
violation. Currier was ordered reinstated, returned, and made completely
whole in an award dated April 9, 1979.
13. Mediation sessions were held on December 6, 7, and 13, 1978. The
services of the mediator for these first three days were paid by the
State. The mediator told the parties that he would serve on the fourth
day for free if a contract would be signed. A fourth session was held
on December 21, 1978. At the end of the fourth day it was clear that
substantial progress had been made and that although written agreements
had not been reached there were only two or three issues remaining between
the parties. When the meeting was adjourned the Association justifiably
understood, based on the progress and all the circumstances that there
would be a further meeting between the parties to bargain over the few
remaining issues. The mediator was still pressing for a settlement.
-3-
________________________________________________________________________________
14. On December 20, 1978, the day before the fourth mediation session
referred to above, the Fire Commission members sent a letter to the
Association stating that the collective bargaining agreement due to
expire on December 31, 1978, was "hereby" extended with the follow-
ing seven exceptions:
"1. Article 1 DEFINITIONS, paragraphs 2 & 3
2. Article 3 RULES & REGULATIONS
3. Article 6 UNION DUTIES
4. Article 7 DUES DEDUCTION & AGENCY SHOP
5. Article 31 PRACTICES
6. Article 33 NO STRIKE CLAUSE
7. Article 35 GRIEVANCE & ARBITRATION"
With respect to Articles 1, 3, and 35, this proposed action was in-
consistent with, and a retreat from, the Commission's bargaining
proposals in those areas.
15. One week after the fourth mediation session Ackerman delivered a letter,
dated December 29, 1978, to Currier stating, in total:
"The position of the Sanford Fire Commission has not
changed since our last meeting in mediation. Please
be advised that we have reached an impasse during this
procedure."
There had been no communication between the parties in the preceding,
Christmas-shortened week. Ackerman testified that he wrote this letter
because the mediator has asked for one more session to try to settle
the contract but that Ackerman did not want to mediate any more. Acker-
man claims that he can declare impasse on his own. He did not know the
Association's position when he did so.
16. The Association then requested fact-finding. A hearing was held on
February 8, 1979. There were 34 issues still in dispute: 26 of 36
articles of the expired agreement and 8 proposals of the Association
for additional articles.
17. On February 10, 1979, the Association prevailed in an arbitration award on a
grievance concerning the suspension of Alfred Robinson around July
21, 1978. He was reinstated with full back pay. As with the Currier
and dues deduction and another pending grievance, Ackerman had stated
beforehand that he would go "the whole route." He never offered to
settle a case prior to an arbitration award although losing totally
on at least three of them reflected in the record.
18. On February 24 and 28, 1978, three unit members spent a total of 15
hours taking a required emergency medical assistance course entitled:
"CPR." The Association claims that the Commission has violated the
Agreement by not paying the men for their time. The Commission re-
fused to pay or acknowledge a grievance procedure. The history of
the contract provisions's applicability to this situation is in dispute.
19. The fact-finders report was issued on March 8, 1979. Among many items
noted therein, the unanimous report indicated that the Commission had
argued that since it had no funds of any consequence allocated for
salary increases in the 1979 budget, that it was difficult for the
Commission to provide the increases that it felt were warranted. The
Commission indicated willingness to pay a 6.2 percent salary increase.
The Commission had made no attempt to seek a budget increase.
20. There was a final negotiation session on April 17, 1979. Some issues
were settled or withdrawn by the Association. A total agreement was
not reached, however, and a binding arbitration hearing was held on
July 5, 1979. The arbitrator's award was issued on July 10, 1979.
-4-
________________________________________________________________________________
21. At the time of the hearing before this Board an agreement had not
been reached. The Commission had rejected all "economic" determina-
tions of the arbitrator. It had offered a contract which incorporated
the noneconomic determinations of the arbitrator and the economic terms
of the expired contract. This is a retreat at least from the earlier
position of a 6.2 percent salary increase.
22. At the hearing Ackerman called no witnesses and, although he declined
to give any direct testimony, he offered himself for examination by
the Association and the Board.
23. Ackerman is a new negotiator for the Fire Commission and has not
negotiated with the Association before. His authority to negotiate
on behalf of the Commission was never made clear. At the hearing he
testified that if he "offered" something (without necessarily using
that word) and it was accepted, then it would be paid by the Commission
whether they approved it or not. This was not communicated to the
Association. It is not clear whether such an offer was ever made
beyond the agreement to drop the no-strike clause. Other than this,
Ackerman had no authority to bind the Commission on any issue.
24. At the end of the dispute resolution process, after total exhaustion of
mediation, fact-finding, and partially-binding arbitration, extending
over 11-1/2 months, the bargaining has resulted in acceptance by the
Commission of the areas of arbitration determinations it considers bind-
ing and rejection of all others. The Commission's latest proposal in-
cludes economic proposals similar to the terms of the long-expired con-
tract in disregard of the intervening collective bargaining and the ex-
haustive dispute resolution procedures.
25. The cost to the Association of the services of the mediator was $41.36
and of the fact-finders approximately $350.OO. Association members were
denied the benefit of performing union duties, including negotiating,
mediation, fact-finding and arbitration without loss of pay after the
expiration of the collective bargaining agreement on December 31, 1978.
DISCUSSION
The Association complains that the Respondents have violated 26 M.R.S.A.
964(1)(A), (B), (C), and (E) in part through 965(1)(C) and (E): (1) by
arbitrarily cancelling a dues deduction provision of the 1977-78 Agreement and
refusing to comply with an arbitrator's award directing its reinstatement; (2) by
categorically rejecting all ground rule proposals; (3) by proposing a collective
bargaining agreement that was less economically beneficial to the employees than
the existing Agreement; (4) by declaring its only offer to be "final" and refusing
to negotiate further; (5) by failing to seek a budget increase from the Town of
Sanford to cover any increase in benefits; (6) by unilaterally halting mediation
and negotiation by declaring a bargaining impasse when one did not exist and contrary
to the understanding of the parties; (7) by refusing to participate in fact-finding
voluntarily; (8) by refusing to grant Association officials pay for attendance at
fact-finding in accordance with Article 5 of the Agreement; (9) by unilaterally alter-
ing the status quo by cancelling certain benefits of the Agreement when it expired;
(10) by not paying overtime to certain employees for their attendance at required, off-
duty training; (11) by prohibiting communication with Commission members while vesting
-5-
________________________________________________________________________________
the Commission negotiator with insufficient authority to conduct meaningful nego-
tiations, and (12) by engaging in a course of conduct designed to attack the Asso-
ciation and its treasury by taking strong disciplinary action against
Association officer Robinson and Association President and Chief Negotiator Currier
during the time of bargaining, by the alleged prohibited practices designed to
delay and extend bargaining, including the abuse of the dispute resolution process
and by the repudiation of all "economic" determinations of the interest arbitra-
tor at the end of the dispute resolution process.
Essentially, the Association contends that the Commission has never intended
to engage in lawful, good faith bargaining, and has used impermissible tactics to
stall and delay, and to maximize the cost to the Association, with the intention
to avoid, if possible, a bargained agreement.
The Fire Commission rebuts most of these allegations on legal theory, or by
way of explanation. These are discussed under each item below.
The Board concludes that there are a number of serious acts of failure to
bargain or participate in dispute resolution procedures in good faith, and a number
of additional instances of evidence of bad faith which in all the circumstances
indicate an overall failure to bargain in good faith, These prohibited practices
are pervasive and have permeated the entire bargaining process. We will fashion
an appropriate remedy.
1. Dues deduction.
Article VII of the Agreement, which establishes payment of full union
dues via dues deduction as a condition of continued employment, is unlawful under
the holding of Churchill v. S.A.D. #49 Teachers Association, 38O A.2d 186 (Me. 1977).
A party is of course not required to abide by the terms of an unlawful contract pro-
vision. See Honolulu Star-Bulletin, Ltd., 123 NLRB 395, 43 LRRM 1449
enforcement denied on other grounds, 274 F.2d 567 (D.C. Cir. 1959).
The Churchill decision was handed down on November 18, 1977. The delay
by the Commission of 8 months before choosing to discontinue the dues deduction
clause and the timing of this action just when negotiations for a new contract
were imminent should be expected to increase tensions at the start of negotiations.
However, both the discovery of the unlawfulness of the provision and the action to
discontinue, which was the Commission's right, probably coincided with preparations
for the impending bargaining. Moreover, the Commission indicated a willingness
to reinstate deductions if the objectionable portion of the clause, the condition-
of-continued-employment language, would be dropped.
We therefore conclude that the cancellation of the unlawful dues deduction
clause and the refusal to reinstate the clause, even when awarded by a grievance
arbitrator, are not prohibited practices.
2. Ground Rules.
Negotiations procedures agreements, or "ground rules," are very important
to effective and meaningful collective bargaining. This Board has commented on
-6-
________________________________________________________________________________
this point frequently. See, e.g., Westbrook Police Unit v. City of Westbrook,
M.L.R.B. No. 78-25 (1978). Strictly speaking, however, this subject of bargaining
is probably not mandatory under 26 M.R.S.A. 965(1)(C). Cf. Board of Directors
of M.S.A.D. No. 24 v. Van Buren Custodian/Bus Driver/Maintenance Personnel Asso-
ciation, MLRB No. 79-16 (1979). Ground rules nonetheless have great importance
to progress in negotiations because of the functions they play in this, as in
any other adversarial endeavor. Typical ground rules determine who may ask and
answer questions, what the meaning of tentative agreements will be, how often and
for how long parties will meet, etc. Lack of ground rules creates the potential
for confusion, misunderstanding, uncertainty, and ultimately delay.
The manner of rejection by Ackerman, despite use of written ground rules for
the last ten years, was categorical and confrontational. In essence, it was a
metaphorical slap in the face as Currier testified.
Ackerman argued at the time and at the hearing that he did not need ground
rules and that he would follow the state law in this area. This is as hollow a
statement now as it was at the time, however, since state law does not establish
ground rules for negotiating.
While standing alone this may not rise to the level of proscribed conduct, but
it does color and is colored by later activity by Respondents. We conclude that
the fact of and the manner of the rejection of the ground rules, are evidence of
a lack of intent to conduct meaningful negotiations and are evidence of failure
to bargain in good faith.
3. The Commission's first bargaining proposal.
The Association contends that the Commission's first proposal, which was
presented at the fourth session, nearly three months after the first session, was
so "regressive" that it is evidence of bad faith.
An analysis of the proposal indicates that it is substantially less
beneficial, economically and otherwise, to the Association than the existing
Agreement. Overall, benefits are cutback in 16 articles,[fn]1 with no improvement
in the remaining articles.[fn]2 In this time of high inflation, it also offered no
wage increase.
On the one hand we agree with the court in NLRB v. Cummer-Graham Co.,
279 F.2d 757, 761 (5th Cir. 1960) which stated:
"We do not hold that under no possible circumstances
can the mere content of various proposals and counter
proposals of management and union be sufficient evidence
of a want of good faith to justify a holding to that
effect."
__________
1 Many proposed reductions were major "take-backs": reduction of sick leave,
elimination of past practices provision, elimination of reimbursement for
required training, and elimination of pay for conducting certain union func-
tions while on duty.
2 The proposal did eliminate the no-strike article. This article was relatively
insignificant since state law prohibits strikes. 26 M.R.S.A. 964(2).
-7-
________________________________________________________________________________
On the other hand we do not find the Commission's package of proposals by itself
to be evidence of bad faith.
4. The Commission's "Final" Offer.
The Commission's first proposal was also clearly labeled "final position
for 1979 contract." Ackerman's conduct at the time that this proposal was made
was entirely consistent with the label. He was not willing "to do business," to
bargain, to compromise, or otherwise negotiate a modification of this seriously
"regressive" bargaining position. Indeed the fact-finders complained that no
serious negotiations had taken place prior to mediation or fact-finding. In essence,
the Commission forced the negotiations into mediation without any effort at all
to negotiate, seek compromise, or otherwise narrow the issues.
As a whole, the Commission's total proposal was predictably unacceptable
by the Association. Rigidly adhering to these proposals when presented
evidences a pre-determination not to reach any agreement at all, to frustrate bar-
gaining, and to force the negotiations into mediation. See Proctor & Gamble Mfg.
Co., 160 N.L.R.B. 334, 338 (1966).
Ackerman's explanation of this situation at the hearing, see Finding of
Fact #11, is simply inadequate. We conclude that insistence on a first ("final")
proposal as predictably unacceptable as this one is strong evidence of a failure
to bargain in good faith. See also Sanford Highway Unit v. Town of Sanford, MLRB
No. 79-50 (April 5, 1979) aff'd, CV-79-171;-172;-278;-186, York Super. Ct. (Aug. 30,
1979).
5. The failure to seek a budget increase.
The Association claims that two Town Meetings have passed while the Com-
mission has failed to seek a budget increase to pay for wage or benefit increases
for 1979. This, it argues, is not fair as it squelches in advance the possibility
of a wage and benefit increase for 1979 absent a reduction in force.
We simply do not agree with the premise of this contention. The Commis-
sion's funding structure is not beset with rigor mortis simply because a Town
Meeting has passed. One way or another, the Commission simply must honor any
agreement it reaches with the Association. This does not require funding in advance
of an agreement.
6. The Commission's declaration of impasse.
Simply stated, an impasse is "a state of facts in which the parties,
despite the best of faith, are simply deadlocked." NLRB v. Tex-Tan, Inc. 318
F.2d 472, 482 (5th Cir. 1963). The N.L.R.B. has summed up the factors to be con-
sidered in determining the existence of an impasse in Taft Broadcasting Co., 163
N.L.R.B. 475, 478 (1967), enf'd sub nom., A.F.T.R.A. v. N.L.R.B. 395 F.2d 622
D.C. Cir. 1968):
"Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith
of the parties in negotiations, the length of the
negotiations, the importance of the issue or issues
as to which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations are all relevant factors to be considered
in deciding whether an impasse in bargaining existed."
-8-
________________________________________________________________________________
It is obvious from findings of fact #11 through #13 that an impasse did
not in fact exist. Substantial progress was being made; there were only three
issues remaining to be resolved; and the parties expected to meet again on these
issues after the fourth mediation session, as did the mediator. When Ackerman
declared impasse he did so without consulting with the Association; he therefore
could not, and admitted that he did not, know whether there was indeed a dead-
lock. If he had been acting in good faith he would have participated in the next
anticipated negotiation session or mediation. Particularly since the mediator
had brought the parties so close together (although there had been no written
tentative agreements in the areas of agreement), Ackerman's letter declaration
of impasse was clearly improper.
In short, Ackerman forced the Association to invoke fact-finding. In the
absence of written tentative agreements, the Association was understandably also
forced to submit all issues to the dispute resolution process. As a result, when
the Association submitted its proposals to fact-finding in February 1979, over
five months of collective bargaining had been nearly totally frustrated. First,
Ackerman forced mediation without bargaining, and then he forced fact-finding
while maneuvering to avoid the progress achieved in mediation.
The timing of the declaration of impasse, two days before the Agreement was
due to expire, is also suspect. Ackerman had already declared his intention to
cancel six provisions of the Agreement while maintaining the status quo on the
remainder of the items. He no doubt intended to use the existence of an impasse
to defend his alteration of the status quo. (Ackerman claimed at the hearing
that the cancellation of these items was proper.) Thus, our conclusion that this
impasse was not bona fide is further supported by its apparent use as a tactic
to put increased economic pressure on the Association by forestalling agreements
and delaying a final contract.
Again, we conclude that this conduct is strong evidence of failure to bar-
gain in good faith.
7. Voluntary Participation in Fact-Finding.
The Association claimed that by not jointly petitioning for fact-finding,
the Commission has somehow impermissibly increased the Association's cost of
fact-finding. However, the statute is quite clear that, regardless of the manner
in which fact-finding is initiated, "[t]he costs for the services of the
members of the fact-finding board . . . will be shared equally by the parties to
the proceedings." 26 M.R.S.A. 965(5). There is thus no basis for this claim.
8. Failure to provide time off with pay to Association officers for fact-
finding participation.
Article 6 of the Agreement provides that officers of the Association are
allowed time off with pay for Union business. They were not paid for attendance
at the fact-finding hearing. A determination here appears to rest more or less
upon an interpretation of what the legal or contractual requirements were at the
time of the fact-finding hearing, February 8, 1979. This issue is subsumed within
the discussion of the next issue.
-9-
________________________________________________________________________________
9. Change of status quo by cancelling benefits at Agreement expiration.
When the Agreement expired on December 31, 1978, the Commission termina-
ted seven articles of the Agreement, and declared its intention to abide by the
remaining conditions of the Agreement. Only one of the seven terminated articles
had been agreed to: the no-strike article. Also, early in the process the Com-
mission had denied the Association's request to extend the Agreement in the event
that a new agreement had not been reached by the end of the year.
The Association contends that this termination of benefits constituted
an impermissible unilateral change in working conditions without collective bar-
gaining. The Commission argues that it was perfectly proper for it to cancel
these articles and that it kept the remaining articles in the interests of main-
taining harmony.
We conclude that the cancellation of these provisions under these cir-
cumstances is not only a complete and serious violation of the duty to bargain
in good faith per 26 M.R.S.A. 964(1)(E) but also an independent violation of
26 M.R.S.A. 964(1)(A), being coercive conduct designed to interfere and re-
strain the employees in the exercise of their rights.
It is axiomatic that a party may not make unilateral changes in working
conditions without bargaining the change with the bargaining agent. See the
cases collected in Maine State Employees Association v. State of Maine, MLRB
No. 78-23 (1978), affirmed sub nom., State of Maine v. M.L.R.B., Kennebec Super.
Ct., CV-78-484 (Aug. 7, 1979). In this Board's decision in Easton Teachers Associa-
tion v. Easton School Committee, MLRB No. 79-14 (1979), the issue of the cancel-
lation of provisions of an expired agreement, similar to the instant situation,
was decided. The Board held:
"In short, by terminating fringe benefits and by refusing to
abide by the existing terms and conditions described in the
expired Agreement without bargaining those proposed changes
with the union. The School Committee has totally bypassed
its duty to bargain and has undermined the bargaining agent's
authority. This plainly frustrates the statutory objective
of establishing working conditions through bargaining and
is a per se violation of 26 M.R.S.A 964(1)(E) as described
in 26 M.R.S.A. 965(1)(C). Thus we will direct a remedy
concerning those items which constitute mandatory subjects
of bargaining."
Easton Teachers Association, supra at p. 5. See also, Levy County, School Board,
GERR 828.12, 1 NPER 10-213 (Fla. PERC July 3, 1979).
The rationale and holding in Easton Teachers Association are directly applicable
to the five articles under negotiation here, each of which is a mandatory subject of
bargaining.: (1) Article 1, Definitions, paragraphs 2 and 3, pertain to the manner
of filling temporary and long-term vacancies and are mandatory subjects of bargaining.
See East Millinocket Teachers Association v. East Millinocket School Committee, MLRB
No. 79-24 (1979); Brunswick School Board v. Brunswick Teachers Association, PELRB
No. 75-19, appeal docketed, Kennebec Super. Ct., CV-76-42 (Feb. 2, 1976).
-10-
________________________________________________________________________________
(2) Article 3, Rules and Regulations, pertains to work rules and is a mandatory
subject of bargaining. See Saco-Valley Teachers Association v. M.S.A.D. #6 Board
of Directors, MLRB No. 79-56 (1979). (3) Article 6, Union Duties, establishes
pay for time spent by association officers for union business, including negotiat-
ing, and is a mandatory subject of bargaining. See Axelson, Inc. v, NLRB, 599 F.2d
91 (5th Cir. 1979). (4) Article 31, Practices, refers to the right to the expecta-
tion by the Association of the continuation of past practices not inconsistent with
the Agreement without unilateral change by the Commission. To the extent that
these practices would effect or constitute working conditions, they would be man-
datory. Finally (5) Article 35, Grievance and Arbitration, is a mandatory subject
of bargaining by explicit statutory reference. 26 M.R.S.A. 965(1)(C).
These areas were directly under negotiation. To the extent that an exception
because of impasse would be claimed it must fail for three reasons: first, there
was no impasse; second, the changes made by the Commission are inconsistent with
its actual proposals regarding Articles 1, 3, and 35, see Easton Teachers Association,
supra, at page 4 n.2; and third, the impasse was not bona fide as we have already
stated, see NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 138 (1st Cir.) cert. denied,
346 U.S. 887 (1953).
The Commission's action in terminating Articles 1 (vacancies), 3 (rules and
regulations) and 6 (union duties), is totally inconsistent with its last best offer
at the time regarding these articles. We therefore view this conduct as an inde-
pendent violation of 964(1)(A) as well. See Easton, supra, at p. 5. This is
simply a bad faith self-help attempt to economically coerce the employees into
capitulation. See also, Sanford Highway Unit, AFSCME v. Town of Sanford, CV-79-
171; 172; 278; 186, York Super. Ct. (Aug. 30, 1979) (slip opinion at 14).
The Commission's claim that it maintained the status quo regarding other ar-
ticles of the Agreement for the purposes of "harmony" belies a callous and arro-
gant attitude towards its employees and the Association. On the same theory the
Commission might just as well have terminated sick leave, insurance, or even wages
for that matter.
Finally we note that early in negotiations the Commission denied a request
to extend the Agreement in the event that a new contract was not reached by the
end of the year. When combined with the breaking off of mediation and negotiations
at the eleventh hour of the Agreement by the baseless declaration of impasse,
and the simultaneous cancellation of certain benefits, this suggests that it was
Ackerman's intention from the beginning not to reach agreement at least
until after the Agreement had expired. We find this impermissible.
10. Overtime for required training.
The Association's claim here is that under the Agreement the employees
involved in the required training should have been compensated. See Finding of
Fact #18. We view the Commission's conduct here as consistent with its position
at time that it was not acknowledging the grievance process.
The merit of the claim for compensation is not at all clear, however.
Thus, while we do not consider this action a separate prohibited practice, we
-11-
_______________________________________________________________________________
will direct in the remedy that this and any other claims which would constitute
a grievance under the Agreement, were it in effect continuously after its puta-
tive expiration date, should be accepted by the Commission under Article 35.
11. Insufficient authority to negotiate by Ackerman.
The Association argued throughout the hearing that Ackerman's authority
to bargain was too confusing and elusive and, since the Commission prohibited
communications with it except through its Chief Negotiator Ackerman, that this
conduct is further evidence of bad faith.
First, there is nothing at all undesirable about formalizing lines or
communication (it should be covered in ground rules). We grant, however, that
the potential for abuse exists in such an arrangement if the negotiation sessions
amount to nothing more than a mere exchange of ideas. In this regard the Board
has stated the general principle that: "A collective bargaining relationship
requires each party[fn]3 to select appropriate representatives to attend bargain-
ing sessions clothed with sufficient knowledge, guidelines, and authority to
reach an agreement." M.S.A.D. No. 38 Board of Directors v. M.S.A.D. No. 38
Teachers Association, MLRB No. 76-20 (1976) (footnote added).
"[T]he authority that must be vested in a party's repre-
sentative in bargaining negotiations is not readily sus-
ceptible to general definition; the more realistic way
to appraise this question, in our view, is to consider
the facts of the particular case."
Lloyd A. Fry Roofing Co., 106 NLRB 200 (1953), modified and enforced, 216 F.2d
273 (9th Cir. 1954).
Although we find that Ackerman's actual authority was somewhat confusing,
and that this did not aid negotiations, we simply do not conclude that in this
respect there is any additional evidence of bad faith.
12. Overall anti-union conduct.
The Association points to specific bargaining tactics which it claims
were designed to delay and frustrate bargaining. The Association alleges in
addition an entire multi-faceted attack on the viability of the Association
which includes not only bad faith bargaining, but also both an economic attack
on the Association's treasury and a direct attack on the Association leadership.
The Commission counters, in essence, that its positions in arbitration
were either correct or reasonable and that progress has been made throughout the
collective bargaining process and that it has been within what the law requires.
A short summary of our conclusions to this point is in order. Some of
__________
3 This principle applies as well to unions as it does to employers. See, e.g.,
Graphic Arts Union, Local 280, 235 NLRB No. 139, 98 LRRM 1188 (1978).
-12-
________________________________________________________________________________
the conduct complained of is legally justifiable, i.e., cancelling dues deduc-
tions, failing to seek a budget increase, and refusing to jointly request fact
finding. However, there are some serious and major violations of the duty to
bargain in good faith: (1) taking an initial intransigent position regarding
its (first) "final offer," which was predictably unacceptable, and forcing the
bargaining immediately to mediation; (2) halting mediation near the point of
success and declaring a false impasse, thus forcing the bargaining to fact-find-
ing and (3) unilateral termination of working conditions at the time of expira-
tion of the Agreement in the absence of a bona fide impasse and in a fashion in-
consistent with its last best offer. Although we would categorize only the
third of these as a per se violation, we find in each of them sufficient evidence
of an independent violation of the duty to bargain and participate in the dispute
resolution process. 26 M.R.S.A. 964(1)(E); 965(1)(C); 965(1)(E); 965(2)(B).
We have also found additional evidence of bad faith in: (1) the fact of and
the categorical manner of rejection of all ground rules proposals; and (2) the
refusal to agree to extend the Agreement if a new agreement had not been reached
by December 31, 1978.
It is apparent at this point that there is a serious violation of the duty
to bargain collectively in good faith permeating the entire process.[fn]4 The
Association, however, argues that we should make a further finding that the Com-
mission has engaged in an unlawful attempt to bankrupt the Association, essentially
by resisting at every turn and running up the collective bargaining bills which
this small Association can ill afford to pay, while at the same time taking un-
founded disciplinary action against President Currier and Association officer
Robinson and forcing every grievance through to full arbitration.
When viewed as a whole, there is no question but that there are serious and
damaging violations of the Municipal Public Employees Labor Relations Act. Given
that our remedy will necessarily be very broad, we see no need to make an addi-
tional finding concerning respondents' ultimate motive although this record would
support the suggested inference were we to make such a finding.
REMEDY
The Board's remedy power is quite clear. "A properly designed remedial order
seeks 'a restoration of the situation as nearly as possible, to that which would
have obtained' but for the unfair labor practice." Caribou School Department v.
Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979) (quoting Phelps Dodge
Corp. v. N.L.R.B., 313 U.S. 177 (1941)).
__________
4 The complaint does not include conduct which occurred after it was filed
but prior to the hearing. The facts in this area are also not developed in
great detail. We do not decide whether the Commission's post-arbitration
proposal and related conduct would constitute a prohibited practice.
-13-
________________________________________________________________________________
We will issue a cease and desist order against the Sanford Fire Commission
and against Mr. Ackerman for future violations of Sections 964(1)(A) and 964(1)
(E) of the Act.
We have also concluded that the prohibited practices in this case began
with the initial rejection of the ground rules, continued with the Commission's
"final" offer proposal, thereby unnecessarily thrusting the matter into media-
tion, and then further continued with the improper breaking off of mediation,
thereby unnecessarily thrusting the matter into fact-finding. The most appro-
priate fashion of restoring the status quo ante for this conduct is to require
the Commission to reimburse the Association for its expenses of bargaining commenc-
ing at the end of the first negotiation session. This includes attorney's fees
for services rendered thereafter, the Association's costs and expenses for media-
tion, fact-finding and interest arbitration, and the loss of pay and expenses for
Association members of the bargaining team. These costs should be paid for the
period ending on the date of the hearing, August 14, 1979. Negotiations that take
place after this date would have been necessary in any event. The Association
should continue to benefit from the conditions listed in Article 6 of the Agree-
ment.
We will also order reimbursement of attorney's fees for preparing the ground
rules proposal since the rejection of the work product was part of the circum-
stances of the prohibited practices.
In light of the unlawful unilateral termination of certain working condi-
tions on December 31, 1978, we will also order an affirmative remedy in line
with that of the Easton case, supra. This remedy required that employees be
made whole for the termination of the benefits reflected in Articles 1, 3, 6,
31, and 35 of the Agreement (excluding the possibilities of recovering double
compensation). This will include honoring any grievance arising after December
31, 1978, as if Article 35 were still in effect.
We will not, however, order the Commission to reimburse the Association
for its expenses of preparing and presenting this case; a number of the counts
had no merit.
We also note that Labor Consultant Ackerman has been a named respondent in
a number of previous cases before this Board in which the party which he repre-
sented has been ordered to cease and desist from violating the duty to bargain
in good faith: Sanford Highway Unit, AFSCME v. Town of Sanford, MLRB No. 79-50
(April 5, 1979), affirmed, CV-79-171; -172;-278;-186, York Super. Ct., Aug. 30,
1979, appeal docketed, Me. Sup. Jud. Ct., L.D. No. Yor-79-40, October 29, 1979;
Sanford Teachers Association v. Sanford School Committee, MLRB No. 77-36 (Sept.
14, 1977); Maine Teachers Association v. Sanford School Committee, MLRB No. 77-18
(June 13, 1977). Indeed in the Sanford Highway Unit case Ackerman, as the "Town
of Sanford Chief Negotiator," was specifically made subject to the cease and de-
sist order.
In the context of this background, we have considered whether or not to
issue a broad cease and desist order against Labor Consultant Ackerman in his
-14-
________________________________________________________________________________
capacity as a representative of any public employer in the future. Such an
order was held to be well within the authority of the N.L.R.B. in NLRB v.
Selvin, 527 F.2d 1273 (9th Cir. 1975). The Selvin court also held that it
was appropriate for the N.L.R.B. to take official notice of Selvin's prior
labor relations record and that there was sufficient evidence to support the
finding that Selvin had a proclivity to engage in bad-faith bargaining.
While we decline to enter such an order in this case, we may do so in a
future case.
ORDER
1. Respondent Sanford Fire Commission, its members, successors,
representatives and agents, and Respondent Charles Ackerman
in his capacity as a representative shall cease and desist
from interfering with, restraining or coercing employees in
the exercise of rights guaranteed in section 963 of the
Municipal Public Employees Labor Relations Act, (hereafter
"the Act") 26 M.R.S.A. 963.
2. Respondent Sanford Fire Commission, its members, successors,
representatives and agents, and Respondent Charles Ackerman
in his capacity as a representative shall cease and desist
from refusing to bargain collectively with the Sanford Fire
Fighters Association, Local 1624, I.A.F.F., AFL-CIO, as re-
quired by section 965 of the Act, 26 M.R.S.A. 965, par-
ticularly from failing to negotiate in good faith and from
failing to participate in good faith in mediation procedures.
3. Respondent Sanford Fire Commission shall reimburse the
Sanford Fire Fighters Association with legal interest from
the date of this order for its reasonable expenses of bargain-
ing for the period from the end of the meeting on August 29,
1978, to the beginning of the hearing on August 14, 1979.
This shall include attorney's fees, the costs and expenses for
mediation, fact-finding and interest arbitration, and the
expenses and loss of pay, if any, for Association members of
the bargaining team. This shall not include the costs of
preparing and presenting this case.
4. Respondent Sanford Fire Commission shall reimburse the Asso-
ciation with legal interest from the date of this order for
reasonable attorney's fees for the preparation of the ground
rules proposal.
5. The payment directed in paragraphs (3) and (4), above, is condi-
tioned upon the submission of a detailed list of all expenses
claimed by the Association to the Sanford Fire Commission within
20 days of receipt of this order by the Association.
6. In the event that the two parties have not agreed in writing to
the payment of a specific amount in satisfaction of paragraphs
(3) and (4) within 35 days from receipt of this order by the
Sanford Fire Commission, then the Association shall submit to
the Executive Director of the Maine Labor Relations Board the
following, within 45 days of receipt of this order:
(a) a copy of the detailed list referred to in
paragraph (5);
(b) supporting affidavit(s) for all items on the
list and, where possible, receipts or other
documents;
-15-
________________________________________________________________________________
(c) a statement of the length of time of preparation
of (a) and (b) above; and
(d) proof of service of (a), (b} and (c) above on the
Sanford Fire Commission.
The Fire Commission may submit argument and affidavits, if any,
within 10 days thereafter, regarding the validity or reasonable-
ness of the claim. The Maine Labor Relations Board will then
issue a supplemental order directing payment of a specific amount.
7. Respondent Sanford Fire Commission shall make whole any employee
for a loss in benefits reflected in Articles 1, 3, 6, 31, and 35
of the 1977-78 Agreement as if unchanged from December 31, 1978,
until superseded by a subsequent written agreement or by binding
interest arbitration, or until the point of bona fide impasse, in
which event the Respondent has the option of continuing the work-
ing conditions reflected in these articles or of instituting its
last best offer. Any grievance arising concerning these or any
other conditions reflected in the 1977-78 Agreement after December
31, 1978, shall not be opposed on the grounds of violation of any
time limits.
Dated at Augusta, Maine, this 5th day of December, 1979.
MAINE LABOR RELATI0NS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Wallace J. Legge
Employee Representative
/s/________________________
Don R. Ziegenbein
Employer Representative
-16-
________________________________________________________________________________