STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-64
______________________________
)
LEWISTON POLICE DEPARTMENT, )
INTERNATIONAL BROTHERHOOD OF )
POLICE OFFICERS, LOCAL 545, )
)
Complainant, )
)
v. )
)
CITY OF LEWISTON, ) DECISION AND ORDER
)
and )
)
CHIEF LONGTIN, POLICE CHIEF, )
LEWISTON POLICE DEPARTMENT, )
)
Respondents. )
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The Complainant International Brotherhood of Police Officers, Local 545,
(hereafter "Local 545") filed this prohibited practice complaint on May 14, 1979.
Respondents City of Lewiston ("City") and Police Chief Longtin responded on June
6, 1979. A pre-hearing conference was held on June 28, 1979, by Alternate Chair-
man Donald W. Webber who issued a pre-hearing conference memorandum and order on
July 6, 1979, the contents of which are incorporated herein by reference.
A hearing was held by the Maine Labor Relations Board ("Board") on August 23,
1979, Alternate Chairman Webber presiding with Employee Representative Wallace J.
Legge and Alternate Employer Representative Thacher R. Turner. Local 545 was
represented by Neil F. Colleran, Esq., and the respondents by Fredda F. Wolf,
Corporation Counsel, and Stephen A. Filler, Associate Corporation Counsel.
Respondents moved at the hearing to dismiss or defer to grievance arbitration
the allegations of Count II on the grounds that a grievance had been initiated
and that arbitration was pending. The motion was denied for reasons indicated be-
low.
Post-hearing briefs were filed by all parties.
JURISDICTION
Jurisdiction of the Board lies in 26 M.R.S.A. 968(5). The Board generally
follows the policies of the National Labor Relations Board regarding prearbitral
deferral of prohibited practice complaint cases. The case of Collyer Insulated
Wire, 192 NLRB 837, 77 LRRM 1931 (1971), which sets forth this doctrine, has more
recently been restricted in application to alleged violations of Section 8(a)(5)
and 8(b)(3) of the National Labor Relations Act - the parallels of 26 M.R.S.A.
964(1)(E) and 964(2)(B). See Roy Robinson, Inc., 228 NLRB No. 103, 94 LRRM
1974 (1977); General American Transportation Corp., 228 NLRB No. 102, 94 LRRM
1483 (1977).
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We consider this to be an appropriate restriction on the prearbitral deferral
policy and follow it here, particularly where violation of basic section 963 rights,
26 M.R.S.A. 963, are alleged. See Northeast Oklahoma City Mfg., 230 NLRB No. 26,
95 LRRM 1276 (1977). Thus we have decided not to defer to arbitration on Count II.
Since the facts of both counts are significantly related, we will also not defer on
Count I.
FINDINGS OF FACT
1. Local 545 is the "bargaining agent" of patrolmen of the City Police
Department. 26 M.R.S.A. 962(2). There are approximately sixty-
five patrolmen in the bargaining unit. The City and Chief Longtin
are each a "public employer." 26 M.R.S.A. 962(7). The Police
Commission, Board of Finance, City Council, and Frederick G. Taintor,
Esquire, as chief negotiator, also each fit the definition of public
employer.
2. Local 545 and the Police Commission were the parties to a collective
bargaining agreement for 1978 ("the Agreement"). The Agreement is
entitled "Agreement between City of Lewiston Police Commission and
International Brotherhood of Police Officers on behalf of IBPO Local
545." Article I thereof states: "This Agreement is entered into by
the Lewiston Police Commission, hereinafter referred to as the Em-
ployer . . . ." The Agreement is executed by the Chairman of the
Police Commission and by the Mayor on behalf of the City, the Board
of Finance, and the City Council. There has been a number of agree-
ments prior to this one.
3. The Charter of the City of Lewiston provides: (a) in Article I:
"The administration of all fiscal, prudential and municipal affairs of
said city except as otherwise herein provided shall be vested in one
body" known as "the city council" which consists of the mayor and
seven aldermen; (b) in Article V that the city council shall "pass
an appropriation resolve giving due consideration to the recommendations
of the board of finance" after a public hearing; (c) in Article VIII
that the board of finance, which consists of four appointed members,
"shall have general supervision and full control over the several
departments of the city so far as it relates to their financial trans-
actions records and auditing and to the receiving and disbursement of
moneys"; and that the board of finance must hold a public hearing
concerning its recommendations relating to salaries and wages" before
making its recommendations for all appropriations for the year to the
city council; and that if the city council fails to pass an appropria-
tion resolve for "the current year" by the first day of March then its
power to do so ends and the power vests in the board of finance; (d) in
Article XI that the police department consists of a commission of five
appointed members, who in turn appoint a chief of police and that:
"The commission shall have full power and authority, subject to
the provisions of this charter, to organize and establish the
police force of the city and to make all rules and regulations
for the government, control and efficiency of the same."
and (e) in a number of sections of Article XI, provisions that purport
to determine a number of working conditions including vacations, sick
leave, pensions and retirement.
4. Attorney Taintor acted as a representative of the Police Commission
although he also consulted the Board of Finance for "guidance" during
the negotiations on the 1979-80 agreement. Local 545 has apparently
never questioned that the Police Commission has the power to ratify non-
financial aspects of any agreement and that the Board of Finance has the
power to ratify the financial aspects of it. The parties to the fact-
finding hearing on the 1979-80 negotiations dispute, however, were
denominated as Local 545 and the "City of Lewiston." Moreover, the
report of the Fact-finding board indicates that both parties stipulated
that they were the proper parties to the hearing. In addition, a pre-
fact-finding stipulation was signed in the name of Local 545 and the
City.
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5. Mr. Denis Jean is the City Personnel Director, and a member of
the City negotiation team along with Taintor and Chief Lucien Longtin.
Jean is also an employee of the Board of Finance.
6. Local 545's team consisted of Local President Robert Wailus, three other
members, and International Representative Jack McCarthy. Later
in the negotiations, Colleran joined the team.
7. Wailus has negotiated at least four collective bargaining agreements
with Taintor and understood that an agreement was only tentative
and would have to be approved by the Board of Finance in the finan-
cial area and by the Police Commission in other areas. There were
no written ground rules and the parties apparently felt little need
for them because of the well-established relationship over the years.
Although he did not disclose the limits of his authority in the begin-
ning, Taintor as a habit always freely disclosed at the bargaining
table when he did not have authority to make a particular commitment
under discussion. On those occasions he would indicate at the next
session whether he could make a commitment or not. Taintor was never
asked to disclose his overall authority although it was understood
that it was limited.
8. There have been a total of nine meetings, starting in September 1978.
During the first two negotiations, Local 545 proposed twenty-four
changes in the 1978 Agreement. The Police Commission proposed that
the Agreement not be changed. The parties agreed upon a two-year
duration and perhaps another minor issue, but then called upon media-
tion in November 1978 which was unsuccessful. The parties met again
in December 1978 utilizing a novel mediation technique with two mediators.
The two mediators, one of whom was Colleran, proposed a "memorandum of
agreement" based on this session which covered the entire dispute.
Taintor had indicated that he would have to seek approval of the Board
of Finance before executing the agreement. He was unable to obtain
such and the memorandum was thus unsuccessful.
9. Colleran and Taintor then jointly requested fact-finding. Prior to
the fact-finding hearing, the two executed a Stipulation of Agreement
in which Local 545 gave up fourteen of its demands, the parties agreed
on two issues, and the parties agreed to submit the six remaining
issues to fact-finding. One of the two agreed items involved a com-
mitment to either construct a new police station or renovate the old
one.
10. The fact-finding hearing took place on February 2, 1979. At the start
of the hearing, however, Taintor requested Local 545 to release the
City from the Stipulation on the grounds that he had exceeded his
authority regarding the police station and he requested that the fact-
finders persuade Local 545 not to press the issue. Taintor has not
indicated that the City would not keep up to the stipulation.
11. Local 545 proposed that it would be willing to be bound by the report
of the fact-finding board. Taintor refused this proposal. When the
report was issued on March 15, 1979, the parties met and the City
rejected the recommendations.
12. At approximately this time virtually all the male patrolmen in the unit
began growing beards as a type of job action in protest of the City's
bargaining contract. Growing beards is a violation of the established
rules and regulations of the Police Department which prohibit "growth
of hair on the face . . . except for mustaches" and sideburns. They
also began informational picketing during off-hours.
13. After a period of time when the City did not change its position, Local
545 asked for a federal mediator. The federal mediator met with the
parties on June 7, 1979. Local 545 made more concessions from the
fact-finding report, however, the City rejected these terms and the
mediation was unsuccessful. One further negotiation session has taken
place. Local 545 has made further concessions and the City has made some
but there has been no resolution.
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14. Local 545 has requested that the City participate in interest
arbitration that would be binding on all issues. Taintor has
indicated rejection of this proposal. The Union has not re-
quested the partially-binding interest arbitration available
under 26 M.R.S.A. 965(4).
15. During the fact-finding hearing, Colleran stated that Local 545
understood that police superior officers would be granted a wage
increase of over 8%. The City, which was proposing only a 7%
maximum increase for patrolmen, disputed this claim. Taintor
stated to the fact-finders that the superior officers had re-
ceived only 7% for 1979 and that they would not be receiving more
that year. The superior officers had in fact received only 7%
at that time. However, four months later in June the Board of
Finance approved a recommendation that superior officers receive
an additional 2% to 3-1/2% increase effective July 1, 1979.
Taintor, although he had argued in favor of a greater wage in-
crease for superior officers in the past, was unaware of this
possibility at the time of the fact-finding hearing.
16. Jean also testified at the fact-finding hearing that the superior
officers had only received a 7% increase and that as far as he
knew that they would not get more that year. He had authored the
2% to 3-1/2% extra pay increase plan in the middle of 1978 and
had proposed it at that time to the Board of Finance; it had not
accepted it at that time. Jean could not have testified at the
fact-finding hearing that the extra increase was in the works and
would be implemented.
17. When the sixty or so patrolmen began growing beards, they did so
in knowing violation of the Rules and Regulations of the Police
Department which prohibit "growth of hair on the face . . . except
for mustaches" and sideburns. Although Chief Longtin took no
action against the majority of the patrolmen, he issued orders on
April 30 and May 15, 1979, which reassigned three "Liaison" Officers
on one day notice from their assignments in the school system to
routine patrol work "on a temporary basis."
18. The three liaison officers work primarily in the schools presenting
programs to students; they are available to the students for advice
and counselling. The liaison assignment is a permanent one and
carries the same pay as other patrolmen assignments but it has both
a preferred status and a more desirable daily schedule with weekends
off.
19. Chief Longtin stated that he took action against only these three
because he wanted the officers out of the schools. He explained that
in the course of their duties they advise students to obey the law.
He thought that they would be setting a bad example by wearing beards
in violation of regulations while they did this. Although all patrol-
men deal with youths in the street as a routine matter and although it
is generally known in the community that all male patrolmen are grow-
ing beards, Chief Longtin makes a distinction for students in school.
He stated that he did this to indicate his disappointment with the
breaking of the regulation by these three and that he did not try to
set an example. He wants them back in the schools doing their liaison
assignments but he will not send them back into the schools unless they
shave their beards.
20. The three patrolmen are no more active in supporting concerted union
activity then the average member of the unit.
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DECISION
Local 545 argues in Count II that the City unlawfully singled out and
disciplined the three liaison officers because they engaged in a job action
in violation of 26 M.R.S.A. 964(1)(A) and (B). The City concedes that the
three were treated differently even though all deviated from regulations but
it points to the different job duties of the three in the school system as a
valid and legitimate basis for the different treatment. The Board concludes
that there is no violation in the reassignment.
In Count I Local 545 argues that the City has breached its duty to bargain
in good faith by a number of instances which taken together constitute a vio-
lation of 26 M.R.S.A. 964(1)(E) through 26 M.R.S.A. 965(1)(C) and (E). The
City counters that it has always acted in good faith and that Local 545 is de-
manding more of the City than the law requires. Although we are disappointed
in the apparent inability of the process to bring to conclusion a collective
bargaining agreement after a period of a year, we find that the City has not
breached the duty to bargain in good faith and therefore dismiss the complaint.
We find, however, that this case graphically demonstrates an inherent weak-
ness in the collective bargaining structure: determining which entity or enti-
ties constitute "the" public employer. We have therefore undertaken to begin
the process of moving towards a solution.
COUNT II
A.
It seems appropriate to analyze the transfer incident in terms of both
Section 964(1)(A) and (B). The test for a violation of Section 964(1)(B) is
whether there was discrimination which had as its purpose the discouragement
or encouragement of union activities. A purpose need not be proved, however,
where the discriminatory conduct has the natural consequence of such a result
or where it was inherently destructive of important employee rights. See NLRB
v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). Where the adverse effect
of the discriminatory conduct is comparatively slight, an anti-union motive
must be proved if the employer has come forward with evidence of legitimate
and substantial justifications for the conduct. Id.
Initially we see no proof of purposeful discrimination by Chief Longtin
designed to discourage union membership. We conclude that the Chief honestly
believed his transfer of the three officers was required based on his percep-
tions of his job functions. The analysis does not stop there, however, as it
is entirely possible to find the conduct to be a violation based on the second
part of the test.
B.
We also conclude, however, that the adverse effect on the three employees
is comparatively slight since it only involves the collateral "right" to grow a
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beard and not a significant issue such as the right to express an opinion con-
cerning the City's bargaining conduct or the right to strike. The transfer was
only temporary until they shaved their beards and involves no loss of pay. We
might view it differently if the three were distinguishable on the basis of their
concerted activity, however, they are not. The Chief has reasonably acted based
on a legitimate purpose of protecting the integrity of the school liaison program.
Since we find no basis to conclude that the transfer was based on anti-union ani-
mus, we conclude that the City has not violated 26 M.R.S.A. 964(1)(B).
C.
The test for whether an action violates the interference section of the Act,
26 M.R.S.A. 964(1)(A), is whether the employer has engaged in conduct which, it
may reasonably be said, tends to interfere with the free exercise of Section 963
rights. See Teamsters Local 48 v. University of Maine, M.L.R.B. No. 78-16 at 8
(1979), appeal docketed, No. CV-79-405 (Kennebec Super. Ct. July 13, 1979); Cooper
Thermometer Co., 154 NLRB 502, 503 n.2 (1965).
When the activity involves a breach of work rules or of a collective bargaining
agreement, the N.L.R.B. has frequently had to balance the character and importance
of the protected activity against the legitimacy of the employer's right to direct
and control operations. E.g., Chrysler Corp., 228 NLRB No. 61, LRRM 1508 (1977).
Such an approach is appropriate here.
D.
We conclude that the transfer of the three employees is not a violation. If
there were no established work rule prohibiting this conduct, it would perhaps be a
different situation. Here, however, we are dealing with a rule that has apparently
been consistently followed in the past. Under the rule the Chief may very well have
sought to discipline all the employees with beards. Perhaps wisely, however, he
refrained from such a knee-jerk reaction and based his response upon what he per-
ceived to be the more significant aspects of the underlying rationale of the rule.
In the balance, we conclude that the actions of the Chief do not violate 26 M.R.S.A.
964(1)(A).
COUNT I
The Association contends that the employer, through its representative negotia-
tor, has evidenced a failure to bargain in good faith as required by 26 M.R.S.A.
964(1)(E) and 965(1)(C) on a number of occasions during the bargaining process.
The Association alleges difficulties regarding (1) an undisclosed lack of authority
of the negotiator and a commensurate inability of the negotiator to make vital com-
mitments or to serve as more than a mere conduit, (2) the repudiation of agreements by
the negotiator's superiors, (3) a general failure of the employer to move towards a
resolution of the dispute, and (4) misleading testimony by the employer's witnesses
before the fact-finders.
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The City responds that the authority of the negotiator was fully disclosed,
that it was adequate within the realities of the cumbersome structure of the
employer in Lewiston, that the City did not unlawfully repudiate any agreement,
that the City has cooperated in the process to the extent required by law, and
that the testimony of the City's witnesses to the fact-finders was totally truth-
ful.
1. Undisclosed lack of authority.
The Association contends that since the City did not disclose the authority
of its negotiator, the Association was entitled to assume that he had full authori-
ty to make binding commitments. It is clear that he did not have such authority
and therefore, the argument proceeds, this is evidence of bad faith. In fact, it
argues the authority that the negotiator, Attorney Taintor, did have was inadequate
to permit meaningful negotiations because he could not make any vital commitments.
Rather, it appears to the Association, the negotiator was merely a conduit and in
violation of the Act.
Although the conclusions of these arguments would support the finding of a
violation, e.g., Westbrook Police Unit of Local 1824, AFSCME v. City of Westbrook,
MLRB No. 78-25 (Sept. 5, 1978), the facts do not support the conclusions. In con-
trast, as the City points out, there was a substantial history of negotiations between
the parties involving the same cast of characters. It is simply undisputed from
that history that the Association was generally aware of the authority of the chief
negotiator and of the procedure followed by the City in its bargaining. It was
clear that Attorney Taintor could make no binding commitments in the economic area;
provisions in this area were subject to ratification at least by the Board of Finance.
Moreover, the Association proposed no ground rules. Thus, where there is no change
from past procedure, the Association cannot expect the negotiator to have more author-
ity than he had in the past, particularly where the Association did not inquire in-
to the degree of authority.
The evidence is also abundantly clear that where the Association did ask ques-
tions, Attorney Taintor answered them forthrightly. Thus, although we agree that
there is a strong presumption that tentative agreements are binding in the absence
of ground rules to the contrary, see Westbrook Police Unit, supra, we think that
the history of negotiations clearly rebuts such a presumption in this case.
Whether the City provided its negotiator with sufficient authority is a dis-
tinct question. If the employer has not, then he would be acting as a mere conduit.
This would be a violation. See Sanford Fire Fighters Association v. Sanford Fire
Commission, MLRB No. 79-62 (Dec. 5, 1979); M.S.A.D. No. 38 Board of Directors v.
M.S.A.D. No. 38 Teachers Association, MLRB No. 76-20 (July 23, 1976).
Although this is a troubling area, on the record developed before us, we have
inadequate evidence that the authority is so insufficient to support an overall
finding of failure to negotiate in good faith. Certainly, the lack of authority
to make any binding commitments and some further restrictions on the ability to
make tentative agreements evident in this case could be considered as a factor in
such a finding. As we discuss below, however, we find no other evidence of lack
of good faith in the other allegations.
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The facts support a conclusion that Attorney Taintor, although restricted
in his authority, was more than a mere conduit. He did have authority to make
tentative agreements on behalf of the Police Commission and he did have some
guidance from the Board of Finance. Although the Board of Finance was danger-
ously distant from the bargaining, there was no evidence that the Board of
finance exercised a veto power over the agreement that was broader than the degree
or level of its involvement in the negotiation process through Attorney Taintor.
We simply do not know whether it did or did not.
The distinction between the authority of the negotiator to make commitments
and the willingness of the public employer to make commitments is also relevant in
this case. In other words, where the authority of the negotiator is significantly
short of the willingness of the employer to make concessions or agreements, then
there is a potential violation of the duty to bargain. However, where the author-
ity of the negotiator is total, yet the employer is simply not willing to move
very far, there is no problem with the negotiator's authority although it might
appear that way when viewed from across the bargaining table. Of course, in the
latter case there may very well be a problem with an insufficient willingness or
ability to seek compromises. See Sanford Highway Unit of Local 481, AFSCME v.
Town of Sanford, MLRB No. 79-50 (April 5, 1979) aff'd, CV-79-172 (York Super. Ct.
Aug. 30, 1979), appeal docketed, Sup. Jud. Ct., L.D. No. Yor-79-40 (Oct. 29, 1979).
Here, however, the Association started with 23 bargaining proposals seeking
changes in the expiring agreement. The City, in contrast, although it could have
sought to improve aspects of the agreement to its benefit, chose to initially pro-
pose no changes. Thus it is likely that the City was willing to make few changes
to the benefit of the Association in an agreement that had been hammered out through
many prior rounds of negotiations. Thus, we do not infer in this case that the
negotiator had insufficient authority simply from the fact that only a few conces-
sions were made.
2. Repudiation of agreements.
The Association points to H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941) and
American Seating Co. v. NLRB, 424 F.2d 106 (5th Cir. 1970) respectively, for
authority that it is a per se violation of the duty to bargain collectively
expressed in 26 M.R.S.A. 964(1)(E) to refuse to execute a written agreement re-
flecting the terms of an agreement and that it is evidence of a violation of that
section when tentative agreements are withdrawn by one side without good cause.
We agree. See 26 M.R.S.A. 965(1)(D) (1974); Teamsters Local 48 v. City of
Bangor, MLRB No. 79-29 (Aug. 24, 1979).
The Association also claims that the agreement reached in the joint mediation
session and the pre-fact-finding stipulation were both agreements which the City
has repudiated. We disagree.
The facts show that the joint mediation agreement was an agreement between
the mediators, not between the City and the Association. Attorney Taintor did not
even tentatively agree to the document itself. He did indicate that he would
seek to garner approval of the proposed agreement. That is what he did. He was
unsuccessful, but that is all.
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The other agreement claimed by the Association, the stipulation entered
into by Attorney Taintor and Attorney Colleran (on behalf of the Association)
was a legitimate agreement. It is also true that Attorney Taintor subsequently
stated that he thought he had authorization to agree to all the items in the
stipulation but that in fact he did not. His statement, however, was not a re-
pudiation of the stipulation. Rather, the City has made a request to the fact-
finders that they persuade the Association to waive entering into the letter
agreement provided for in the stipulation.
Thus we find this to be an honest mistake which has not been turned into a
repudiation of or withdrawal from the stipulation. Had the City actually with-
drawn from this stipulation we would have considered it further evidence of lack
of good faith because, although it was an honest and open mistake, it obviously
would have stemmed from insufficient participation in the bargaining by either
the Commission, the Board of Finance, or both. This set of facts is clearly
distinguishable from Carolina Paper Board Corp., 183 NLRB 544, 550 (1970), and
the other cases cited by the Association and we therefore conclude that there
is no evidence of lack of good faith bargaining in the circumstances surround-
ing the joint mediation agreement and the stipulation.
3. Failure to move towards resolution.
The Association makes a generalized claim that it was the only party that
has made meaningful concessions and that the City has been only going through
the motions without actually seeking to adjust differences. The Association
argues that it was the party that was the prime mover in every formal dispute
resolution technique: mediation, joint labor-management mediation, fact-finding,
federal mediation, and a request for binding arbitration. It points to the
facts that it has made most of the concessions, that it was willing to be bound
by the fact-finders' report while the City was not, and that it would go to
totally-binding arbitration while the City would not.
This argument has more weight than substance, however. The City has made
some concessions and it has cooperated fully and vigorously in each and every
technique that the Association has suggested except for two: the proposals to
turn the fact-finders' report into a totally-binding arbitration award, and
the subsequent proposal to enter into totally-binding arbitration.
Although the Association is willing to abide by totally-binding arbitration,
it demands more of the City than the City is required to give. The law requires
that the City bargain collectively, 26 M.R.S.A. 964(1)(E), which requires that
City participate in fact-finding and arbitration in good faith, 26 M.R.S.A.
965(1)(E). The law, however, quite clearly provides for nonbinding fact-
finding, 26 M.R.S.A. 965(3), and arbitration which is binding on most but not
all bargaining issues.[fn]1 It would be improper to use as a measure of good faith
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1. Section 965(4) of the Act provides in pertinent part: "With respect to a
controversy over salaries, pensions, and insurance, the arbitrators will recommend
terms of settlement and may make findings of fact; such recommendations and find-
ings will be advisory only . . . ."
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what is quite clearly not required by the labor laws.
This is the reality of the Act, albeit a harsh one. The Association can
invoke arbitration (which it has so far eschewed) which will be binding on
everything except the narrow areas of salaries, pensions and insurance.[fn]2
But at the bottom line, at the end of the dispute resolution process, there is
simply no method of resolving disputes over salaries, pensions and insurance
available to the Association and its members. See 26 M.R.S.A. 964(2)(C)
(prohibition against strike, slow down, and work stoppage). Even the full
remedial power of the Board cannot require a party to make a bargaining
concession.[fn]3
4. Misleading testimony at fact-finding
The Association argues essentially that statements made by Attorney Taintor
and Personnel Director Jean at the fact-finding hearing were misleading because
they indicated that the police brass would not be receiving a further pay increase that
year beyond the 7% they had just received. The City used this fact in sup-
port of its limiting a pay increase for patrolmen to 7%.
They also both indicated that there were no plans in the works to provide
a further increase. Notably, a plan was approved by the Board of Finance four
months later which did give the police brass a further mid-year pay increase of
2% to 3-1/2%. This plan had been authored by Jean prior to fact-finding
testimony. The general idea of an additional pay increase for the police brass
had also been the consistent suggestion of Attorney Taintor in the past, as he
openly maintained.
We are satisfied, however, that the additional increase for the police brass
was not yet contemplated by the Board of Finance at the time of the fact-finding
hearing. Therefore, we are satisfied that the representations to the fact-finders
were truthful. We also conclude that they could not have testified that additional
increases for the police brass were in the process of being approved.
In summarizing all the arguments, we conclude that although there is some
evidence from which we could infer a lack of good faith, the City did not, in
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2. In City of Biddeford v. Biddeford Teachers Association, 304 A.2d 387, 418
(Me. 1973) (concurring opinion), Justice Wernick rejected the notion that the term
"salaries" in 26 M.R.S.A. 965(4) was intended to mean anything other than its
ordinary, plain meaning. Thus all economic items are not excluded from binding
arbitration.
3. See 26 M.R.S.A. 965(1)(C). It is not unusual for complaining parties
to request such relief. The Association, for example, requested that we order
the City to accept the unanimous recommendations of the fact-finding panel.
Parties should hold no illusions about the extent of relief available from the
MLRB; we cannot compel agreement where the parties have not agreed to a contract
provision. Caribou School Department v. Caribou Teachers Association, 402 A.2d
1279 (Me. 1979).
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viewing the totality of the circumstances, fail to negotiate in good faith. The
deeply troubling aspect of the case, however, moves us to speak to the question
of the duties of "the" public employer in a situation such as appears in the City
of Lewiston where employer functions which reside in a central place of power
in the typical collective bargaining model are apparently divided between differ-
ent bodies which may not necessarily cooperate.
The Duties of "The" Public Employer.
We start with the proposition that, while the Act broadly defines "public
employer," 26 M.R.S.A. 962(6), it is silent with respect to establishing "the"
public employer in any particular instance. Hence, in this case, the Police
Commission, the Board of Finance, and the City Council are all public employers
under the definition since they each act on behalf of the municipality of Lewiston
in various ways with respect to the employees in this bargaining unit.[fn]4 Yet it
is unclear which of these public employers has, or to what degree each shares,
the burden of the obligation to bargain in good faith with the Association.
Despite the fact that each of these three public employers signed the last
collective bargaining agreement, the degree of participation of each was not fully
brought forward. The Police Commission did not have full authority; the Board
of Finance clearly had some authority but only a minimal degree of participation
as far as we could tell. The City Council's participation and actual authority
were simply not raised or apparent from the record.
Since the functional bargaining structure of the actual public employer in
this case remained unknown, it was an impossible task for the Board to fully com-
prehend whether or not its negotiator had sufficient authority. This is a very
serious problem; the Association may very well have been wasting its time at the
table. Consequently, we anticipate that this problem will rear its head between
these and other parties in the future. We hope to focus the attention of the
public sector labor community on the problem and provide some guidelines for the
future.
We also take some comfort from the fact that this state is not unique be-
cause of its statutory incompleteness in this regard. It is thus quite appro-
priate for us to perform the vital function of shaping a solution to fill the
gap by addressing the problems and stating some guidelines.[fn]5. See, Harry T.
Edwards, The Emerging Duty to Bargain in the Public Sector, 71 Mich. L. Rev. 885, 904 (1973)
(hereafter "The Emerging Duty").
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4. The Police Commission directs and controls the daily operation of the
Department and its employees; the Board of Finance and the City Council each have a
measure of control over the finances and, by the practice of the parties, over the
execution of the collective bargaining agreement. Indeed, a representative of
each actually signs such agreements.
5. Professor Edwards noted that other questions "pale by comparison to the problem
of attempting to identify the real public 'employer' in any given public sector nego-
tiations." The Emerging Duty, supra, 71 Mich. L. Rev. at 903.
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At this point we see two possible models which could be followed: a single
employer concept and a joint employer concept. Each may be appropriate in dif-
ferent circumstances; other possibilities may exist. However, an attempt by an
employer to mix models by utilizing a single employer approach at the bargaining
table when it is actually employing a joint employer structure in decision-making
will probably be a prohibited practice.
The single employer approach has been indicated in two decisions of this Board
arising in the context of a scope-of-bargaining dispute. In both instances the
Board held that it was a violation of the duty to bargain for the public employer
to insist on provisions in the contract which, respectively, provided for ratifica-
tion by a Town Warrant Commission and for the inclusion in a collective bargaining
agreement of an agreement-implementation contingency depending upon subsequent bud-
get approval by voters of a school administrative district. See, Maine Teachers
Association v. Sanford School Committee, MLRB No. 77-18 (June 13, 1977); S.A.D. #22
Non-Teachers Association v. S.A.D. #22 Board of Directors, MLRB No. 79-32 (July 30,
1979). In both cases the Board chose to exclude other bodies from the process of
ratification of the agreement. In one instance, that of the Warrant Commission, the
body excluded was a public employer. In that instance, however, the only apparent
function of the Warrant Commission was to approve a budget. It did not otherwise
participate in creating substantive agreement provisions.
The practical result seems to be that the single public employer must bargain
and reach agreement with the bargaining agent and then, unless the bargaining agent
agrees to renegotiate, continue to live with that agreement in the event that its
budget is smaller than requested. Thus it might be required to reduce its services
in order to keep within the terms of its collective bargaining agreement.
The joint employer model, in contrast, may be the appropriate approach where
the various bodies do in fact exercise final authority over any bargainable issue.
See Grondin & Hardin, Public Bargaining in Oregon, 51 Ore. L. Rev. 7, 36 (1971).
The joint employer model, see NLRB v. Greyhound Corp., 368 F.2d 778 (5th Cir. 1966),
would require each body to participate in the bargaining and to present a common
front. This appeals to us as the only possible way to permit collective bargaining
where more than one public employer body has such authority. Thus, in the joint
employer model, the representative participation of each employer body in the bar-
gaining would eliminate the possibility of a lawful failure of ratification by
each body except in rare circumstances. We see this as a necessary process.
We do not view the joint employer model as requiring a redistribution of govern-
mental power, although in the case of the City of Lewiston it may involve a coopera-
tive approach not heretofore followed. Ultimately, we suspect that if an irrecon-
cilable conflict arises between a municipal ordinance, or even a municipal charter,
and a failure to comply with the duty to bargain in a workable manner, the munici-
pal structure may have to yield to the supervening state labor law regarding the
duty of the municipalities to bargain collectively. 26 M.R.S.A. 961, et seq.
We are suggesting that on the one hand if the City Council, the Board of
Finance, or any other public employer in the City of Lewiston besides the Police
Commission intend to exercise authority over any provision of the collective bar-
gaining agreement being negotiated with the Association, then it must participate
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fully in the negotiations and present a common approach at the bargaining table
such that meaningful bargaining can take place without any greater concern for sub-
sequent failure of ratification by the respective employer bodies than failure of
ratification by the employees.
On the other hand, if the Board of Finance and the City Council are prepared
to approve the budget of the Police Department at whatever level it considers appro-
priate without exercising control over specific provisions of the agreement, then
it need not participate in the bargaining.
Although the parties can agree to whatever structure they might prefer, in the
absence of such the principles emerging from the above decision and the holding in
this case should be clear. A bargaining agent must understand the power structure
of the public employer across the table as it relates to the negotiation, execution,
and ratification of its collective bargaining agreement. If that structure is
defective, it must prove it to us. Correlatively, the public employer must be
clear what structure it will utilize in bargaining and avoid the danger of not in-
cluding a public employer body which will exert authority over any term of the con-
tract. The "facts of life" of the municipal charter establishing a "cumbersome,
tri-partite" government may not necessarily immunize the municipality from being
found in violation of the duty to bargain in good faith. 26 M.R.S.A. 965(1).
In closing we note that although we find no violation in either count in this
case, we would see no small merit in a claim that the police officers have been
treated in a fashion which we suspect can only be to the overall detriment of life in
the City of Lewiston.
Dated at Augusta, Maine, this 18th day of December, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Donald W. Webber
Alternate Chairman
/s/________________________________________
Thacher E. Turner
Alternate Employer Representative
/s/________________________________________
Wallace J. Legge
Employee Representative
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