STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 14-04
Issued: March 21, 2014

TEAMSTERS LOCAL UNION 340,
Complainant

v.

TOWN OF ELIOT
Respondent.

 

DECISION AND ORDER

 

	  
	    

     Teamsters Local Union 340 filed a prohibited practice
complaint with the Maine Labor Relations Board on July 23, 2013,
as amended on August 7, 2013, alleging that the Town of Eliot
failed to bargain in good faith, thereby violating §964(1)(E) of
the Municipal Public Employees Labor Relations Law (the "Act"). 
Specifically, the complaint alleges that the Town unilaterally
changed the hours and work schedule of a bargaining unit employee
without first bargaining with Teamsters Local Union 340. 
               
     A prehearing conference was held on September 26, 2013,      
at which time the Union was represented by Mr. Ray Cote, a
Teamsters Business Agent, and the Town of Eliot was represented
by Linda D. McGill, Esq.  An evidentiary hearing was held on
December 19, 2013, by which time the Union was represented by
Howard T. Reben, Esq.  Both parties were able to examine and
cross-examine witnesses and to offer documentary evidence at the
evidentiary hearing.  Chair Katharine I. Rand presided at the
hearing, with Employer Representative Karl Dornish, Jr., and 


[end of page 1]

Employee Representative Wayne Whitney serving as the other two
Board members.  The parties' post-hearing briefs were filed by
January 30, 2014, and the Board deliberated this matter on
February 19, 2014.

                           JURISDICTION

     Teamsters Local Union 340 is a bargaining agent within the
meaning of 26 MRSA §962(2), and the Town of Eliot is the public
employer within the meaning of 26 MRSA §962(7).  The jurisdiction
of the Board to hear this case and to render a decision and order
lies in 26 MRSA §968(5). 
                               
                              FACTS

1.   Teamsters Union Local 340 is the certified bargaining agent
     for the general government bargaining unit of employees of
     the Town of Eliot.  The position of Assistant Director of
     Community Services is one of the positions in that
     bargaining unit.
2.   Natalie Gould had been employed by the Town for about nine
     (9) years and during the times relevant to this complaint
     held the position of Assistant Director of Community
     Services.
3.   The parties began negotiations for their initial collective
     bargaining agreement with a meeting in May of 2013.  At the
     meeting of July 2, 2013, the first proposals for the
     bargaining agreement were presented.
4.   The Chief Negotiator for the Town of Eliot's bargaining team
     was David Barrett, the Director of Personnel Services and
     Labor Relations for the Maine Municipal Association.  The
     other members of the Town's team were Mr. Michael Moynahan, 
     
[end of page 2]

     Chair of the Town's Select Board, Mr. Dan Blanchette, the
     Administrative Assistant to the Board, and Ms. Heather Roy,
     the Director of Recreation.
5.   The bargaining team for Teamsters Union Local 340 consisted
     of Ms. Traci Place and Mr. Ray Cote, both Business Agents
     for the Teamsters.   
6.   The Town of Eliot operates under the Town Meeting form of
     government.  At the Town Meeting on June 15, 2013, the Town
     voted on 51 warrant articles.  On budgetary items, there
     were sometimes two proposals presented for a vote: one
     recommended by the Board of Selectmen and the other
     recommended by the Budget Committee.  The budget for the
     Community Services Department adopted at the Town Meeting
     was the budget recommended by the Budget Committee, not by
     the Board of Selectmen.  The payroll line of the adopted
     budget was $15,000 less than the amount presented in budget
     recommended by the Board of Selectmen.  
7.   The vote to reduce the payroll line of the Community
     Services Department by $15,000 did not specify how this
     reduction was to be accomplished.
8.   The Town meeting also voted against allowing the Town to
     exceed the property tax levy limit established by the "LD 1
     budget cap".[fn]1   As the Town's budget exceeded the cap by
     $220,000, another town meeting had to be held in August to
     approve a budget having $220,000 worth of cuts.  The Board 
     of Selectmen identified the cuts, and the revised budget was
     approved in the subsequent August Town Meeting.  That budget
     did not affect the Community Services Department any further
     than the action on June 15, 2013.
9.   After the June 15, 2013, Town Meeting and prior to the
     bargaining session on July 2, 2013, Mr. Moynahan and 

     1 30-A MRSA §5721-A.

[end of page 3]

     Mr. Blanchette met to develop different options to achieve
     the $15,000 reduction imposed by the Town Meeting vote.
10.  On July 2, 2013, the parties had their first negotiating
     session following the June Town Meeting.  The bargaining
     session ran from 3:00 to 5:00 p.m., as scheduled.  Prior to
     the start of the negotiating session, the Town's bargaining
     team members informed David Barrett of the Town Meeting vote
     on the Community Services Department payroll line.
11.  The payroll line of the Community Services Department covers
     the salaries for two positions.  The Director, Ms. Roy,
     makes about $54,000 a year, and the Assistant Director, Ms.
     Gould, makes about $41,000 a year.[fn]2  
12.  At the end of the July 2, 2013, bargaining session, the Town
     raised the subject of the Town Meeting vote that had reduced
     the payroll line of the Community Services Department.  At
     some point early on in the discussion, Mr. Moynahan left but
     the other members of the Town's bargaining team remained. 
     They described the options of allowing Ms. Gould to work
     fewer hours and stretch her employment out over a longer
     period.  For example, if Ms. Gould continued to work full
     time, she would have to be laid off in mid- to late-January. 
     If she worked 30 hours instead, her position would last a
     month or two longer.  The option of working 24 hours a week
     would bring Ms. Gould through the fiscal year, but she would
     not be eligible for any insurance benefit.  
13.  During the discussion about these options for dealing with
     the Community Services salary line reduction, Mr. Cote said
     to Ms. Roy: "You're asking the bargaining unit employee to
     take a cut. Why can't you take a cut as well or take a cut
     instead of, considering the fact that your salary is 

     2. There is conflicting testimony on Ms. Gould's salary.  Ms. Roy
testified it is $35,000.  The exact amount is immaterial.

[end of page 4]

     significantly more than Natalie's?" 
14.  While the options were still being discussed, Mr. Blanchette
     left the room to make copies of documents related to
     agreements made earlier in the bargaining session.  
15.  Mr. Barrett suggested that Ms. Roy should speak with 
     Ms. Gould about the alternatives and find out what her
     preference was.  Mr. Barrett testified that the Union did
     not object to the plan for the supervisor to talk to Ms.
     Gould about the different options, and "implicit in that"
     was the expectation of finding out what her preference was. 
     There is nothing in his testimony suggesting that the plan
     involved anything more than having the discussion with the
     employee.  Mr. Barrett left the room with the impression
     that there was mutual agreement to follow through with this
     plan.
16.  Ms. Roy testified that agreement was for her "to have a
     discussion with Natalie about the options."  In each
     instance in which Ms. Roy testified about what was said at
     the end of the July 2, 2013, bargaining session, she stated
     that the meeting was to "present" or "give" the options to
     Ms. Gould, or for "giving the employee some feedback on the
     options."
17.  When Mr. Blanchette returned from making copies, both
     bargaining teams were putting their things together and
     getting ready to leave.  He asked whether they had decided
     anything.  He was told by someone that "they were going to
     let Natalie choose." 
18.  The Union representatives did not object to the decision to
     have Ms. Roy meet with Ms. Gould to discuss the options. 
     The Union representatives did not ask to be present at the
     meeting between Ms. Roy and Ms. Gould nor did they ask to be
     notified when that meeting was to occur.  

[end of page 5]

19.  Mr. Cote testified that his understanding was that after 
     Ms. Roy spoke to Ms. Gould about the options, the issue
     would come back to the bargaining table.  Nothing was said
     to the Town representatives at the July 2, 2013, meeting or
     after that reflects this view.  Ms. Heather Roy testified
     that her understanding was that after the meeting she would
     present the option chosen by Ms. Gould to the Board of
     Selectmen for implementation.  Nothing was said to the
     Teamsters representatives at the July 2, 2013, meeting or
     after that reflects this view.
20.  At no time during the July 2, 2013, meeting did the Union
     demand bargaining or state that they expected the salary
     reduction or the impact of the reduction in hours to be
     negotiated.
21.  The minutes from the Selectmen's meeting the next day, on
     July 3, 2013, reflect a statement by Mr. Blanchette about
     the need to negotiate with the union. 
 
          Mr. Blanchette commented on employees that were  
          now covered by union saying that they could not 
          cut the hours without first negotiating that 
          with the union. He added that not having a 
          contract didn't mean that they didn't have a 
          union; that once they had a union to the point 
          of the contract they were supposed to keep 
          status quo.

          Union Exhibit #4, at 4.

     The subject under discussion at the time was the proposed
     budget cuts based on a decision to eliminate the Town's plan
     to move the Eliot Community Services Department (ECSD) to
     the elementary school.  This proposed change in plan was
     part of the effort to meet the $220,000 reduction needed to
     comply with the "LD 1 budget cap."  
22.  An unsigned Memo from Mr. Blanchette to "Teamsters" dated
     July 2, 2013, states, in full:

[end of page 6]

          The Town meeting reduces the CSD payroll by 
          $15,000. There are two positions funded out of 
          that line item-Director at $55,296.60 and The 
          Assistant at $41,014.40. We are proposing a 
          reduction in hours of the assistant from 40 hours 
          per week to 24 hours. I do not think that we can 
          keep them on the insurance package if they work 
          less than 30 (I am checking on that).  

          Union Exhibit #3. 

     Although this exhibit was introduced into evidence by the
     Union along with the other three exhibits,[fn]3 no one
     offered any testimony to explain it, to indicate if, when or
     how it was delivered or presented to the Union, and whether
     it played any role in the negotiating session or the
     discussion about Ms. Gould's future.  Furthermore, neither
     party mentioned this exhibit during the hearing or in their
     written briefs to the Board.  
23.  The meeting between Ms. Roy and Ms. Gould occurred at some
     point later in July.  Ms. Gould did not ask for a union
     representative to be present at this meeting, nor did the
     Union inquire about attending this meeting.
24.  The Teamsters never authorized the Town to reduce Gould's
     hours nor did they authorize the Town to bargain directly
     with the employee. 
25.  Natalie Gould's pay was reduced from 40 hours to 30 hours in
     the beginning of August of 2013.  It is not clear when the
     Union learned of this change or when precisely it was
     implemented. 

     3. The other exhibits were:  Ex. #1, Warrant Articles for the June
15, 2013, Town Meeting; Ex. #2, Minutes of the June 15, 2013, Town
Meeting; Ex. #4, Minutes of the special Board of Selectmen's Meeting
of July 3, 2013.

[end of page 7]

                            DISCUSSION

     The question presented in this case is whether the Town of
Eliot unilaterally changed Natalie Gould's work week from 40
hours to 30 hours effective at the beginning of August of 2013 in
violation of 26 MRSA §964(1)(E).[fn]4   Section 964(1)(E)
prohibits a public employer from refusing to bargain over wages,
hours, working conditions and contract grievance arbitration.  A
corollary to the duty to bargain is the prohibition against 
making unilateral changes, as explained by the following:
     
     . . . Changes in the mandatory subjects of   
     bargaining implemented unilaterally by the public
     employer contravene the duty to bargain created by 
     Sec. 965(1) of the Act and violate 26 M.R.S.A.     
     Sec. 964(1)(E).  The rationale behind this     
     principle of labor law is that an employer's 
     unilateral change in a mandatory subject of  
     bargaining "is a circumvention of the duty to 
     negotiate which frustrates the objectives of [the  
     Act] much as does a flat refusal."  NLRB v. Katz,   
     369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d   
     230 (1962); Lane v. Board of Directors of MSAD No.
     8, 447 A.2d 806, 809-810 (Me. 1982).  

          In order to constitute a violation of Sec. 
     964(1)(E), three elements must be present.  The 
     public employer's action must:  (1) be unilateral,
     (2) be a change from a well-established practice, 
     and (3) involve one or more of the mandatory 
     subjects of bargaining.  Bangor Fire Fighters
     Association v. City of Bangor, MLRB No. 84-15, at 
     8 (Apr. 4, 1984).  An employer's action is 
     unilateral if it is taken without prior notice to 
     the bargaining agent of the employees involved in 
     order to afford said representative a reasonable 
     opportunity to demand negotiations on the 
     contemplated change.  City of Bangor v. AFSCME, 
     Council 74, 449 A.2d 1129, 1135 (Me. 1982).

Teamsters Local Union No. 48 v. Eastport School Department, 

     
     4. We note that the Complainant does not argue that the action of
the Town Meeting to reduce the payroll budget for the Community
Services Department constituted a violation of the Act.

[end of page 8]


No. 85-18 at 4 (Oct. 10, 1985). 

     There are certain limited situations in which an employer's
unilateral change while negotiations are in progress might not
violate §964(1)(E).  This Board has identified four exceptions to
the broad rule against unilateral changes.  The first exception
is when a bona fide impasse has been reached between the
negotiating parties.  See, e.g., Mountain Valley Education
Association v. MSAD #43 Board of Directors, 655 A.2d 348, 352
(Me. 1995) (A party may unilaterally implement its last best
offer when negotiations have reached a bona fide impasse after
the completion of the statutory impasse resolution procedures). 
The second exception is when important business exigencies
require immediate managerial decision.  See, e.g., MSEA v. State
of Maine, Bureau of Alcoholic Beverages, No. 78-23 at 4 (July 15,
1978)(A business exigency is "a sudden, out-of-the-ordinary event
threatening serious harm and requiring immediate managerial
action."), aff'd, State of Maine, Bureau of Alcoholic Beverages
v. MLRB and MSEA, 413 A.2d 510 (Me. 1980).  The third exception
is when the union has waived its right to bargain about the
unilateral change (discussed below), and the fourth is when the
unilateral change results from a customary practice which existed
prior to the start of negotiations for an initial collective
bargaining agreement.  See Council #74, AFSCME v. Town of
Brunswick, No. 85-08 at 6 (Apr. 19, 1985).
     
     There are two questions before the Board in this case.  The
first is whether the change was, in fact, unilateral.  If the
Union agreed to allow the Town to let Ms. Gould choose among the
work schedule alternatives and to then implement that choice,
then it is not a unilateral change.  The second question is
whether the Town is correct to assert that the Union waived its
statutory right to bargain over the issue by failing to demand 

[end of page 9]

bargaining.  We will address each of these matters in turn. 

     The Town argues that the change was not unilateral because
the Union had agreed to let the Town make the change, or that it
was reasonable for the Town to think there was an agreement.   
As indicated in our factual findings, the record is clear that
the parties agreed to have the head of the department, Ms. Roy,
speak to Ms. Gould to determine her preference.  Contrary to the
Town's argument, there is nothing in the record to support a
finding that the Union had agreed that the Town could implement
whatever Ms. Gould's choice happened to be.  The agreement was
simply to discuss the various options with her and find out what
her preference was.

     Our conclusion that there was no agreement is based on the
testimony of all of the parties involved in the discussion at the
end of the bargaining session and the absence of any notes or
other memorialization of an agreement.  Of the four members of
the Town's bargaining team, only Mr. Barrett and Ms. Roy were
present when the plan to speak with Ms. Gould was developed.
There is nothing in the testimony of either of them to support a
conclusion that the plan involved anything more than having the
discussion with the employee.  With respect to what the next step
would be, Ms. Roy testified that she was under the impression
that she could just take Natalie's choice directly to the Board
of Selectmen for implementation.  There is no testimony by any of
the individuals present during this conversation that even
suggests that implementation of Ms. Gould's preference was part
of the discussion, let alone part of an agreement.[fn]5   On the

     5. Mr. Blanchette was not present during the discussion after the
options were laid out.  He testified that when he return to the room 
he was told by someone they decided "to let Natalie choose."  Even if
those were the words used, it is not evidence of an agreement to
implement that choice without further discussion.

[end of page 10]

contrary, Mr. Cote, the Union representative, testified that he
left the meeting thinking that the Town would bring the issue
back to the bargaining table.  Ms. Roy and Mr. Cote did not
communicate their views to each other.  Clearly, there was no
"meeting of minds."

     It is particularly significant that there is no evidence
that either party made a written notation of any agreement to
implement Ms. Gould's as-yet-unstated preference once the options
were described to her.  The discussion of the potential reduction
in hours was in the context of the early stages of bargaining for
an initial agreement.  It is standard practice in collective
bargaining for the parties to memorialize any agreements made on
issues raised at the table at the time the agreement is made. 
That these particular parties followed the practice of reducing
agreements to writing is evidenced by Mr. Blanchette's testimony
that he left the room after the options were explained in order
to make copies of agreements made earlier in the negotiation
session.  No one from either bargaining team could point to a
written agreement or even any discussion about memorializing an
agreement to reduce Ms. Gould's hours of employment.  

     Thus, we conclude that the discussion occurring at the end
of the July 2, 2013, negotiating session did not result in an
agreement to implement anything, but was merely an agreement to
let Ms. Roy speak with Ms. Gould in order to determine her
preference.  The meeting with Ms. Gould was to be a continuation
of the discussion in order to find out how Ms. Gould felt.  It
was merely a "fact-finding" mission to inform the parties of the
affected employee's preference.[fn]6 

     6. Likewise, we reject the Town's claim that it was reasonable for
the Town to think there was an agreement.

[end of page 11]

     The Union argues that in the absence of an express
agreement, there can be no unilateral changes in a mandatory
subject of bargaining during collective bargaining negotiations.
The Town argues that the change to Ms. Gould's work schedule was
not unilateral because the Union failed to demand bargaining
during the July 2, 2013, discussion and did not make any effort
to demand bargaining prior to filing the complaint.  

     In its written argument to the Board, the Town points to the
established standard that once the Union receives notice of the
Employer's contemplated change, a failure to demand bargaining in
a timely manner is equivalent to a waiver of that right.  The
oft-quoted standard is: 

     An employer's action is unilateral if it is taken
     without prior notice to the bargaining agent of the
     employees involved in order to afford said
     representatives reasonable opportunity to demand
     negotiations on the contemplated change.  City of
     Bangor v. AFSCME, 449 A.2d 1129 1135 (Me. 1982).

Teamsters v. Eastport, No. 85-18 at 4.

     With respect to the Town's legal argument, we question
whether a waiver by inaction (that is, failure to demand
bargaining) can be appropriate when the parties are in the
process of negotiating an agreement.  As mentioned above, one of
the four exceptions to the unilateral change rule while
negotiations are in progress is when the Union has waived the
right to bargain.  That is precisely the issue raised in the
current case.  

     It is well-established law that while a collective
bargaining agreement is in effect, a union's waiver of the right

[end of page 12]

to demand mid-term bargaining must be "clear and unmistakable"
before an employer can lawfully make a unilateral change.  MSEA
v. State of Maine, 499 A.2d 1228, 1232 (Me. 1985)(Waiver found in
the clear and unmistakable broad language of the zipper clause.) 
Such a waiver "'should be express, and ... mere inference, no
matter how strong, should be insufficient.'"  Saco Valley
Teachers Assoc. v. MSAD No. 6 Bd. of Dir., No. 85-07 and 85-09,
at 10-11, (Mar. 14, 1985)(finding no express waiver in zipper
clause and refusing to find waiver by inference from Union's
raising subject in "re-opener" discussions as there was no
evidence union consciously relinquished any right), quoting NLRB
v. Perkins Machine Co., 326 F.2d 488, 489 (lst. Cir. 1964). 
Similarly, failure to mention an established practice in a
bargaining agreement does not constitute a waiver of the right to
bargain over changes to that practice.  MSEA v. State, No. 84-19
at 9 (July 23, 1984), citing Communications Workers of America v.
NLRB, 644 F.2d 923, 928 (1st Cir. 1981) and NLRB v. Jacobs Mfg.
Co., 196 F.2d 680, 684 (2nd Cir. 1952).  

     When the parties are engaged in bargaining, this Board has
rejected the argument that a failure to demand bargaining is a
waiver of the statutory right to bargain when the subject of the
unilateral change is already on the bargaining table.  In doing
so, however, the Board did not expressly state that the "clear
and unmistakable" standard is appropriate when negotiations are
in progress.  For example, in  Malcolm Charles v. City of
Waterville, the Board rejected the City's argument that the Union
had not demanded bargaining over a specific change affecting
vacation and sick leave, holding that "[o]nce the bargaining
agent submitted its proposals to negotiate over vacation time and
sick leave, Respondent was placed on adequate notice that these
items were areas in which no unilateral changes should occur 

[end of page 13]

without prior negotiation" and "the bargaining agent was not
required to reiterate its bargaining proposals each and every
time it learned of a possible change in the vacation or sick
leave schedules."  Malcolm Charles v. City of Waterville, No.78-19 
at 6-7 (July 21, 1978).  Similarly, in MSEA v. Bureau of
Alcoholic Beverages, the Board held that the Union had not waived
its right to bargain about the unilateral change by not making a
specific request to bargain when it learned of the State's intent
to keep the liquor stores open on Washington's Birthday because
the Union had submitted a proposal to negotiate holiday work at
the start of negotiations.  MSEA v. Bureau of Alcoholic
Beverages, No. 78-23 at 4-5, aff'd State of Maine, Bureau of
Alcoholic Beverages v. MLRB and MSEA, 413 A.2d 510.  The Board
held that ". . . once MSEA submitted its proposal to negotiate
over holiday work, Respondents were placed on adequate notice
that holiday work was an area in which no unilateral changes
should occur without prior negotiation and settlement." Id. at 5.
In a factually complex 1997 case, the Board applied the "clear
and unmistakable" standard for waiver of the right to bargain
over the implementation of bus driver evaluations once that issue
was placed on the bargaining table.  In the very same paragraph,
the Board rejected a claim of waiver based on the union's earlier
failure to demand bargaining because the union had not received
notice prior to the implementation.  Litchfield Educ. Support
Personnel Assoc. (MEA) v. Litchfield School Committee, No. 97-09
at 38 (July 13, 1998).  Thus, considering all of these cases, we
cannot assert that the Board's precedent is crystal clear on this
issue. 

     We need not address the question of whether the "clear and
unmistakable" standard should be applied in this case[fn]7 because we

     7. Applying the clear and unmistakable standard to a unilateral
change while negotiations are in progress requires evidence of the 

[end of page 14]

conclude that the Town has failed to meet the less rigorous
requirement of providing prior notice to afford the bargaining
agent a "reasonable opportunity to demand negotiations on the
contemplated change."  As the Union's obligation to demand
bargaining does not arise until the employer provides notice of
the change, we will first address the sufficiency of the notice.
     
     There are several elements to the notice requirement: the
notice must be provided to the bargaining agent,[fn]8 the notice
must be timely,[fn]9 and it must give a reasonable opportunity to
demand bargaining.  If sufficient and timely notice is provided
to the bargaining agent, then an agent's failure to demand
bargaining is considered a waiver of the statutory right to
bargain over that issue. 
     
     The Town bargaining team representatives informed the Union
on July 2, 2013, that the payroll line of the Community Services
Department budget had been cut by $15,000 at the Town Meeting. 
Even if the Town had made it clear that its position was that the
entire burden of the cut would be borne by Ms. Gould, the Town

7.(cont'd) substance of the negotiations. In this case, we know nothing about
other matters on the table, but the Town brought up the issue of the
$15,000 cut near the end of a bargaining session when it consulted the
Union about several options.  Why the parties treated the issue so
cavalierly, presumably unlike the other proposals that were on the
table, is unclear.  Based on the Town's behavior, the Union could have
reasonably concluded that the issue was either on the table already, or
would be placed on the table after the Town completed its fact-finding
mission and had a specific proposal to make. 

     8. An employer's notice to the affected employees of its intention
to implement a change in a mandatory subject is not the same as giving
notice to the bargaining agent, Saco Valley, Nos. 85-07 & -09 at 11-12,
and in such cases the question may be whether the bargaining agent had
actual notice.  Monmouth School Bus Drivers & Custodians v. Monmouth
School Committee, No. 91-09 at 56 (Feb., 22, 1992).

     9. For example, actual notice to the Union of a "rally" for which
bus driver attendance was mandatory was insufficient when provided 
only three days before the rally.  Monmouth School Bus, No. 91-09 at 

[end of page 15]

did not present the Union with notice of how this budget cut
would be implemented.  There were several options under
consideration, and one suggested by the Union but not likely
favored by the Town, that is, to have some of the cut be borne by
the manager, Ms. Roy.  Until the Town identified the change it
intended to implement, the Union was not on notice of "the
contemplated change".  As such, there was no "reasonable
opportunity" to decide whether to demand bargaining.  To find a
waiver in this case without being satisfied that the Union knew
what it was waiving is akin to requiring the union to "buy a pig
in a poke."

     In MSEA v. State of Maine, the Board addressed the
substantive terms of the notice of an intended change.  In that
case, the State needed to act promptly to limit its exposure
following a U.S. Supreme Court decision that invalidated the way
the State was compensating certain employees for overtime work. 
No. 85-19 (Dec. 2, 1985).  After several meetings with the Union,
the State implemented its stated plan to limit the hours of
certain employees through an Executive Order.   The Union argued
that they did not know the details of the Order until the morning
it was issued.  The Board rejected this argument with:

     In view of the extensive prior discussions between the
     parties, the mere fact that the State did not make
     available to MSEA the exact terms of the Executive
     Order until the morning of its promulgation did not, by
     itself, render unreasonably short the notice by the
     State of its prospective action; the Executive Order
     embodied no changes that should not have been expected
     as a result of those early discussions. Since reduction
     in the hours of non-standard employees to the work-hour 


     10. The Board concluded that the State was authorized to issue the
Executive Order by the terms of the Management Rights article of the
collective bargaining agreement.  MSEA v. State, No. 85-19 at 20.  

[end of page 16]


     levels set forth in the FLSA was the only method
     legally available to the State to limit FLSA overtime
     liability, the MSEA should reasonably have expected the
     nature of the State's ultimate action to be exactly
     such a limitation.

MSEA v. State, No. 85-19 at 22.  In stark contrast to MSEA's
situation of knowing exactly what change the State would be
implementing, in the present case the Union could not possibly
have received proper notice because the Town of Eliot was still
considering its options.  Thus, it is unnecessary to address
whether the Union made a bargaining demand because we conclude
that the Town had not provided notice of the contemplated change
to the Union.[fn]11   

     We conclude that the Town's reduction of Ms. Gould's hours
of employment without prior notice to the bargaining agent to
provide a reasonable opportunity to demand bargaining about the
reduction and its impact was an unlawful unilateral change in a
mandatory subject in violation of 26 M.R.S.A. 964(1)(E). 

     Before turning to remedy, we note that this prohibited
practice complaint could have been avoided by either party simply
picking up the phone at one of several points along the way.  Had
the Town notified the Union of its intended change as soon as it
had Ms. Gould's information, this prohibited practice complaint
may not have arisen.  Had the Union representatives picked up the 

     11. The National Labor Relations Board cases cited by the Town are
unavailing because, in each of them, the NLRB found that there was
clear notice to the union of the contemplated change.  In U.S. Lingerie
Corp. v. Undergarment and Negliee Workers Union, Local 62, the Union
was on notice at least a couple of weeks ahead of time that the
employer was going to close its New York operation and relocate to
another state but failed to demand bargaining.  170 NLRB 750 (1968). 
In Diamond Walnut Growers, Inc. v. Cannery Workers, Processors,
Warehousemen & Helpers, Local 601, the Union had notice of the
employer's addition of testing requirements for certain jobs, but
failed to demand bargaining.  312 NLRB 61 (1993).

[end of page 17]

phone as soon as they got wind of a planned change and before
filing the PPC, there may have been no need to file a complaint. 
Similarly, once the Town received the PPC, a phone call could
have led to a different path. 

     Upon finding that a party has engaged in a prohibited
practice, we are instructed by Section 968(5)(C) to order the
party "to cease and desist from such prohibited practice and to
take such affirmative action, including reinstatement of
employees with or without back pay, as will effectuate the
policies of this chapter."  A properly designed remedial order
also seeks "a restoration of the situation, as nearly as
possible, to that which would have obtained" but for the
prohibited practice.  Caribou School Department v. Caribou
Teachers Association, 402 A.2d 1279, 1284 (Me. 1979).  We
accordingly will order the Town to restore the status quo as it
existed prior to its unilateral change.  We expect the parties to
negotiate in good faith to achieve this result.  As the Town of
Eliot acknowledged in its oral and written argument to the Board,
even if the Town were authorized to lay off an employee, the Town
would still be obligated to bargain over the impact or effects of
such a layoff.  We do not know if the parties are currently
negotiating that issue.  

                               ORDER

     On the basis of the foregoing discussion, and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by 26 MRSA §968(5), we hereby ORDER the Town to remedy its
violation of the Act by reinstating Ms. Gould to her position on
a 40-hour schedule with back pay.  With that restoration of the
situation, we further ORDER the parties to negotiate in good 

[end of page 18]

faith over the reduction in Ms. Gould's hours and the impact of
such a reduction.

Dated at Augusta, Maine, this 21st day of March, 2014.

 

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.

MAINE LABOR RELATIONS BOARD

[signed]
Karl Dornish, Jr.
Employer Representative

Wayne W. Whitney
Employee Representative

 

Employee Representative Wayne W. Whitney participated in the
deliberation of this case and concurs with the decision above,
but was unavailable to sign this Decision and Order.

Chair Katharine I. Rand dissented with respect to the remedy
ordered by the Board Majority.

     I agree with the majority opinion in all respects, except
for that portion of the remedy requiring back pay.  While it is
impossible to know what result would have obtained had the Town
bargained with the Union over the implementation of the $15,000
payroll reduction, as it was required to do, I conclude that
under no circumstances would the employee have continued working
40 hours per week until the date of decision.  In my view, the
back pay award represents an unjustified windfall for the
employee and I therefore dissent from the majority opinion to the
extent it purports to make the employee whole through back pay.


                                   /signed/_____________________
                                   Katharine I. Rand        
                                   Chair
  

 

[end of page 19]