MSEA v. State of Maine, Bureau of Alcoholic Beverages, No. 78-23; affirmed, State of Maine, Bureau of Alcoholic Beverages v. MLRB and MSEA, CV-78-484, affirmed, State of Maine, Bureau of Alcoholic Beverages v. MLRB and MSEA 413 A.2d 510 (Me. 1980). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 78-23 _____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) STATE OF MAINE, and BUREAU OF ) ALCOHOLIC BEVERAGES, DEPARTMENT ( OF FINANCE AND ADMINISTRATION, ) ) Respondents. ) _____________________________________) This case comes to the Maine Labor Relations Board ("Board") by way of a prohibited practice complaint dated February 22, 1978 and filed on February 24, 1978 by Richard J. McDonough, President, Maine State Employees Associa- tion. The Respondents' response to the Complaint was dated and filed March 16, 1978 by John J. Sears, Esquire. A pre-hearing conference on the matter was held on March 29, 1978 in Augusta, Maine, with Alternate Chairman Donald W. Webber presiding. As a result of the pre-hearing conference, Alternate Chairman Webber issued on March 31, 1978 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. The parties agreed at the pre- hearing conference that since no factual issues were raised requiring a fact hearing before the Board, the matter would be submitted to the Board on legal memoranda. All legal memoranda were submitted by May 8, 1978, and the Board proceeded to deliberate on the case on June 20, 1978, Alternate Chairman Donald W. Webber presiding, with Michael Schoonjans, Employee Representative, and Kenneth T. Winters, Alternate Employer Representative. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations Board in this matter, and we conclude that this Board has juris- diction to hear and render a decision In this case as provided in 26 M.R.S.A. 979-H. FINDINGS OF FACT Upon review of the Pre-Hearing Conference Memorandum and Order, the exhibits submitted at the pre-hearing conference, and the pleadings, the Board finds: 1. Complainant Maine State Employees Association ("MSEA") was at all times material herein the certified bargaining agent for the Retail Store Clerks employed in the State of Maine Liquor Stores by Re- spondent Bureau of Alcoholic Beverages, Department of Finance and Administration. -1- ______________________________________________________________________________ 2. Respondents State of Maine and Bureau of Alcoholic Beverages, Department of Finance and Administration, are public employers as defined in 26 M.R.S.A. 979-A(5). 3. At all times material herein, MSEA and Respondent State of Maine were engaged in negotiations for a collective bargaining agree- ment to cover the bargaining unit of state employees which in- cludes the Retail Store Clerks employed in the State of Maine Liquor Stores. Among the items which MSEA submitted for negotia- tion was a proposal concerning holiday work, including work on Washington's Birthday. 4. By Personnel Memorandum 21-77, dated November 22, 1977, the Commissioner of the State of Maine Department of Personnel designated Washington's Birthday, February 20, 1978, as a holiday for state employees. 5. With the possible exception of the State Liquor Store located in Kittery, Maine, State Liquor Stores operated by Respondent Bureau of Alcoholic Beverages, Department of Finance and Administration, had not, prior to February 20, 1978, remained open for business on Washington's Birthday. 6. On February 6, 1978, Respondent Bureau of Alcoholic Beverages, Department of Finance and Administration, issued Memorandum No. 3971, advising State Liquor Store Managers that all State Liquor Stores would remain open for business on Washinqton's Birthday, February 20, 1978. 7. Prior to February 20, 1978, MSEA, being aware of Respondent's intention to keep State Liquor Stores open for business on February 20, 1978, submitted an oral request to Respondents that the State Liquor Stores remain closed on February 20, 1978. Respondents did not accede to the oral request. MSEA did not tender a specific request to negotiate about the directive to keep the Stores open for business on Washington's Birthday, and no negotiations over the opening of the Stores on Washington's Birthday occurred. 8. The Retail Store Clerks who worked in State Liquor Stores on February 20, 1978 were paid holiday pay in accordance with State policy and practice. 9. Title 28 M.R.S.A. 154 provides in pertinent part that "the State Liquor Commission shall establish the hours of operation of each state retail liquor store . . ." The State Liquor Commission has delegated the responsibility for establishing hours of opera- tion of State Liquor Stores to Respondent Bureau of Alcoholic Beverages, Department of Finance and Administration. DECISION Complainant has charged that Respondents, in keeping State Liquor Stores open on Washington's Birthday, unilaterally changed the wages, hours and working conditions of the Retail Store Clerks without bargaining with the Retail Store Clerks' certified bargaining agent, in violation of 26 M.R.S.A. 979-C(1)(E). Respondents urge that they are not obligated to negotiate the holiday operation of State Liquor Stores, that they have not unlawfully and unilaterally changed terms and conditions of employment, and that they have not unlawfully refused to bargain. We find that Respondents' opening of the State Liquor Stores on Washington's Birthday constitutes a unilateral change in the Retail Store Clerks' wages, hours and working conditions -2- ______________________________________________________________________________ in violation of 26 M.R.S.A. 979-C(1)(E), and order an appropriate remedy. We believe that there is no question that a unilateral change in the Retail Store Clerks' wages, hours and working conditions occurred. Holiday work by State employees involves the employees' wages, hours and working conditions. Except for those Clerks employed in the Kittery, Maine, State Liquor Store, the Clerks had prior to February 20, 1978 never before worked on Washington's Birthday. The State Department of Personnel had again this year designated Washington's Birthday, February 20, 1978, as a holiday for State employees. As is shown in the parties' Joint Exhibit No. 2, MSEA, the Retail Store Clerks' certified bargaining agent, had prior to February 20, 1978 proposed that holiday work, including work on Washington's Birthday, be negotiated. No negotiations occurred over the opening of the Stores on Washington's Birthday, February 20, 1978. The issue presented for our determination, then, is whether the unilateral change by Respondents in wages, hours and working conditions was permissible under the State Employees Labor Relations Act. Section 979-C(1)(E) of the State Employees Labor Relations Act (26 M.R.S.A. 979-C(1)(E)) provides that the public employer is prohibited from refusing to bargain collectively with the bargaining agent of its employees as required by 26 M.R.S.A. 979-D. Section 979-D(1)(E) states in pertinent part that the public employer and bargaining agent are mutually obligated to "confer and negotiate in good faith with respect to wages, hours, working conditions . . . All matters relating to the relationship between the employer and employees shall be the subject of collective bargaining, except those matters which are prescribed or controlled by public law." Sections 979-C(1)(E) and 979-D(l)(E) thus are phrased in identical language as Sections 964(1)(E) and 965(1)(C) of the Municipal Public Employees Labor Relations Act (26 M.R.S.A. 964(1)(E) and 965(1)(C), except that 965 (1)(C) does not contain the sentence found in 979-D(1)(E) about "those matters which are prescribed or controlled by public law." We have consis- tently held in numerous cases involving Sections 964(1)(E) and 965(1)(D) that a public employer's unilateral change in hours or working conditions during negotiations for a collective bargaining agreement results In an unlawful refusal to negotiate In good faith. Thus, as we recently stated In Lake Teachers Ass'n v. Mount Vernon School Committee,M.L.R.B. Case No. 78-15 (1978): "It is well established by prior decisions of this Board that an employer who makes a change in wages, hours or working conditions without bargaining the change with the certified bargaining agent, violates the duty to negotiate in good faith as required by 26 M.R.S.A. 965(1)(C) in violation of 26 M.R.S.A. 964(1)(E). [Oxford Hills Teachers Association v The Board of Directors of Maine School Administrative District No. 17 MLRB Case No. 73-06 (1973) and Truck Drivers, Warehousemen and Helpers Union, Local No. 340 v Rockland City Council et al. MLR8 Case No. 77-l6 (1977] This doctrine has been applied consistent with the decision of the National Labor Relations Board in NLRB v Katz, et al., 369 U.S. 736, 82 S. Ct. 1107, 8 L Ed2d 230 (1962) and has been applied to cases where the change increased the benefits to employees, Local 1458 of Council 74 of the American Federation of State, County and Municipal Employees, AFL-CIO v The City Council of Augusta et al. MLRB Case Nos. 74-09 and 74-14 (1974) as well as those which decrease a past benefit. Local 1828 of Council 74 of the American Federation of State, County and Municipal Employees v The City Council of South Portland et al. MLRB Case Nos. 73-13 and 73-14 (1973)." -3- ______________________________________________________________________________ We adopted the doctrine upheld by the United States Supreme Court in the Katz case, supra, because we believe that a public employer's unilateral change in a mandatory subject of bargaining undermines negotiations just as effectively as if the public employer altogether refused to bargain over the subject. A unilateral change in wages, hours, and working conditions during negotiations, whether accomplished by a municipal public employer or by the State, bypasses the collective bargaining agent and directly obstructs or inhibits the actual process of negotiation. Because such results are prohibited by both 26 M.R.S.A. 965 and 979-D, we believe that our rule against unilateral changes, as enunciated in Municipal Public Employees Labor Relations Act cases, is equally applicable in cases brought under the State Employees Labor Relations Act. We recognize, however, that a public employer's unilateral change in a mandatory subject of bargaining during negotiations may be permissible, if consistent with offers made to the bargaining agent during negotiations, in four very limited situations. In general terms, these four exceptions to the rule against unilateral changes may occur as follows: 1) when a bona fide impasse has been reached between the negotiating parties, see, e.g., NLRB v. Intercoastal Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961); 2) when important business exigencies require immediate managerial decision, see, e.g., Pasco County School Bd. v. Florida Public Employees Relations Comm., 96 LRRM 3347, 3358-3359 (Fla. Dist. Ct. App.)(1977); 3) when the union has waived its right to bargain about the unilateral change, see, eg., U. S. Lingerie Corp., 170 N.L.R.B. 750, 751-752 (1968); and 4) when the unilateral change results from a traditional practice which existed prior to the commencement of negotiations, see, e.g., McCulloch Corp., 132 N.L.R.B. 201, 213-214 (1961). In our opinion, Respondents cannot justify the unilateral change in the Retail Store Clerks' hours and working conditions in terms of any of the exceptions to the rule against unilateral changes outlined above. Respondents argue that the unilateral change is justified by business "necessity" and "prerogatives," consisting of the need to serve the public on Washington's Birthday and the need to generate revenue. We consider such concerns to be more in the line of day-to-day problems of Respondents which do not rise to the level of true business "exigencies." Mere business "reasons" for the unilateral change are not sufficient to immunize the change. We envision an "exigency" as a sudden, out-of-the-ordinary event threatening serious harm and requiring immediate managerial action. Only in such unusual circumstances can an exception to the rule against unilateral changes be justified, for, as previously indicated, the cost of a unilateral change to the collective bargaining process may be substantial. Requiring any less of a justification for unilateral changes could, we believe, result in subverting the State's public policy concerning collective bargaining for State employees, as declared in 26 M.R.S.A. 979. Consequently, we cannot agree that the need to serve the public or to generate revenue constitute business exigencies which justify Respondents' unilateral change. Respondents also contend that MSEA waived its right to bargain about the unilateral change when, after learning of Respondents' intention to keep the Stores open on Washington's Birthday, MSEA did not submit a specific request to negotiate over the change. We do not believe, however, that MSEA, after submitting a proposal to -4- ______________________________________________________________________________ negotiate over holiday work at the commencement of negotiations, was required to reiterate its desire to negotiate holiday work each and every time it learned of a possible change in the holiday work schedule. To rule to the contrary would be to risk transforming collective bargaining sessions into nightmarish exercises in which bargaining proposals are monotonously repeated ad infinitum. Such a ruling would be a grave disservice both to the parties who participate in collective bargaining and to the collective bargaining process itself. Consequently, we believe 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. Respondents also urge that holiday work by Retail Store Clerks is not a mandatory subject of bargaining, and that Respondents accordingly were not obligated to negotiate the Washington's Birthday opening of the Stores. Respondents do not argue that the opening did not involve the hours and working conditions of the Clerks, but instead point to the sentence in 26 M.R.S.A. 979-D(1)(E) which provides that all matters shall be the subject of collective bargaining "except those matters which are prescribed or controlled by public law." Respondents contend that because the State Liquor Commission has been authorized by the legislature to establish the hours of operation of State Liquor Stores, the matter of when the stores shall remain open is "prescribed or controlled by public law" and therefore removed as a mandatory subject of collective bargaining. We do not agree that the legislative grant of authority to the State Liquor Commission to establish the hours of operation of State Liquor Stores results in removing the issue of holiday work from the collective bargaining requirements set forth in 26 M.R.S.A. 979, et seq. First, we do not inter- pret the State Liquor Commission's authority provided in 28 M.R.S.A. 154 to establish hours of operations as "prescribing or controlling" the matter of holiday work by Liquor Store employees. The first sentence of 28 M.R.S.A. 154 provides that State Liquor Stores may be open between the hours of 9 a.m. and midnight, while the second sentence grants the State Liquor Commission the authority to establish the hours of operation of each Store. It therefore appears to us that the second sentence of Section 154 is merely a limited grant of power to the State Liquor Commission to determine the hours of operation of each Store within the 9 a.m. to midnight period established in the first sentence of the Section. Consequently, we cannot agree that the State Liquor Commission's authority to establish hours of operation can be construed so broadly as to include the power to determine when Liquor Store employees shall take holidays, in contravention of the holiday schedule for State employees set by the Commissioner of Personnel in Personnel Memorandum 21-77. It follows that the State Liquor Commission could not delegate such power to determine holidays to Respondent Bureau of Alcoholic Beverages, Department of Finance and Administration. Second, even if the State Liquor Commission were granted the power to determine when Liquor Store employees shall take holidays, we do not believe that the legislature intended that such a basic term or condition of employ- ment as holiday work could -5- ______________________________________________________________________________ be "prescribed or controlled" by public law so as to remove that issue as a mandatory subject of negotiations. As noted by MSEA in its Reply Brief, the Commissioner of Personnel is granted in 5 M.R.S.A. 631(1) the power to prescribe or amend rules and regulations covering State employees relative to such matters as compensation plans, suspensions and dismissals, layoffs, and vacation and sick leave. To rule by implication that such matters are "prescribed or controlled" by public law and therefore are not subjects of collective bargaining would remove all substance from the State Employees Labor Relations Act. Such a result would clearly subvert the public policy declared in 26 M.R.S.A. 979. We do not believe that the legislature would have expended the time and effort necessary to enact the State Employees Labor Relations Act if it intended that every reference in the Maine Statutes to a possible term or condition of employment would "prescribe or control" that particular term or condition of employment for the purpose of avoiding a clear obligation to engage In collective bargaining. We therefore find that Respondents were required under 26 M.R.S.A. 979-D to negotiate the opening of the State Liquor Stores on Washington's Birthday with MSEA, and, having failed to so negotiate, Respondents violated 26 M.R.S.A. 979-C(1)(E). ORDER On the basis of the foregoing findings of fact and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 979-H of the State Employees Labor Relations Act, it is hereby ORDERED: 1. That the State of Maine and the Bureau of Alcoholic Beverages, Department of Finance and Administration, and their representatives and agents, cease and desist from engaging in any of the acts prohibited by 26 M.R.S.A. 979-C(1), and especially from refusing to bargain collectively with the bargaining agent of its employees as required by 26 M.R.S.A. 979-D; 2. That the State of Maine and the Bureau of Alcoholic Beverages, Department of Finance and Administration, cease opening State Liquor Stores on days designated State Holidays by the Commissioner of the State of Maine Department of Personnel without negotiating such proposed openings with the bargaining agent(s) for the State Liquor Store employees. Dated at Augusta, Maine this 15th day of July, 1978. MAINE LABOR RELATIONS BOARD /s/___________________________________ Donald W. Webber Alternate Chairman /s/___________________________________ Michael Schoonjans Employee Representative /s/___________________________________ Kenneth T. Winters Alternate Employer Representative -6-