The Consequences Of Failing To Carefully Read A Proposal

The New England Police Benevolent Association and the City of Caribou, Maine have negotiated collective bargaining agreements since the Association was certified as the bargaining agent in 2011. In September 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 that the parties would be able to come to an agreement before the current agreement expired.

Austin Bleess, the City Manager, was the lead negotiator on the City’s bargaining team, while the Association was represented by Sean McArdle, the Association’s representative for northern New England. Eventually, the parties proceeded to mediation.

During mediation, the parties reached the rough outline of a tentative agreement on the entire contract. The tentative agreement, couched as a Memorandum of Agreement (MOA), included retroactive wage increases. Bleess met in executive session with the City Council. The Council instructed Bleess that it did not want to provide retroactive wage increases, and also indicated a desire to cap sick and vacation time accrual. In exchange for accepting the cap on the sick and vacation time accruals, the Council was willing to raise the annual increases in base pay to 3.5%, 3.5% and 3% in the three-year contract.

After the Council’s evening meeting, Bleess made changes to the draft MOA to incorporate the Council’s decisions. 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. The revised MOA contained a clause reading: “For base pay purposes, 40 hours will be paid at straight time and two hours will be at time and a half. The base salary for each employee, for 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 proposal.”

On February 29, 2016, Bleess and McArdle exchanged emails resulting in final tentative agreement on the MOA. Both parties ratified and executed the agreement at the beginning of March, 2016.

Shortly after the newly-ratified contract was executed, the local union’s president asked Bleess when the retroactive piece of the wage increase would be paid. Bleess said retroactive payments were not in the MOA and referred the President to the specific language addressing the retroactivity issue. It was at this point that the local union first learned that the City would not be making the wage increase retroactive.

In a later unfair labor practice proceeding, both McArdle and the President testified that when the Association submitted the agreement to its membership for ratification, they and the membership thought that the wage increase would be retroactive to the beginning of January. Both 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.

The Maine Labor Relations Board dismissed the Association’s complaint seeking retroactivity for the 2016 wage increase. The Board found that “the City and Association 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 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 the Association knew that 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.

“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 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.”

New England PBA v. City of Caribou, 2017 WL 6818080 (Maine LRB 2017).