STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-08 ________________________________ ) TEAMSTERS LOCAL UNION NO. 48. ) STATE, COUNTY, MUNICIPAL AND ) UNIVERSITY WORKERS IN THE ) STATE OF MAINE, ) ) Complainant, ) ) v. ) ) TOWN OF JAY ) DECISION AND ORDER ) and its ) ) TOWN MANAGER, MICHAEL ) HOULIHAN, ) ) Respondents. ) ________________________________) On October 11, 1979, Teamsters Local Union No. 48 ("Local 48") filed a prohibited practice complaint against the Town of Jay and its Town Manager, Michael Houlihan ("Town"). The Town filed an answer to the complaint on November 1, 1979. A pre-hearing conference on the case was held November 13, 1979, Alternate Chairman Donald W. Webber presiding. As a result of the pre-hearing conference, Alternate Chairman Webber issued on November 13. 1979 a Pre- Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the case was held December 5, 1979, Chairman Edward H. Keith, presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Harold S. Noddin. At the conclusion of the hearing, the parties engaged in oral argument of the case. The Board proceeded to deliberate over the case at a conference held after the hearing on December 5, 1979. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations Board in this case, and we conclude that this Board has jurisdiction to hear the case and render a decision as provided in 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. Teamsters Local Union No. 48 is a public employee labor organization and bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B). The Town of Jay and its Town Manager are public employers within the meaning of 26 M.R.S.A. 968(5)(B). 2. Local 48 was certified as the bargaining agent for a bargaining unit composed of Patrolmen and Dispatchers in the Jay Police Department at a decertification/certification election held February 1, 1979. The Town filed objections to the election, and, after a hearing on the objections, the Board on May 15, 1979 dismissed the objections and -1- ______________________________________________________________________________ affirmed the certification of the election. The parties com- menced negotiations for a collective bargaining agreement for the Patrolmen and Dispatchers in June, 1979. Agreement has not yet been reached, and negotiations are continuing. 3. On September 28, 1979, one of the four Patrolmen employed by the Department submitted his resignation to the Chief of Police, to be effective as of October 3, 1979. The Chief informed the Board of Selectmen of the resignation. At an October 1, 1979 meeting, the Selectmen decided that changes in the shift schedule would have to be made until a fourth patrolman was hired. The Selectmen ordered the Chief to implement the changed shift schedule that evening. No effort was made to contact Local 48 about the impending scheduling change. 4. Prior to October 1, 1979, the Chief assigned each Patrolmen to shifts totalling 40 hours per week. Each Patrolman was assigned to work 5 days per week, with 2 days off. These assignments were made 1 to 2 weeks in advance. All unassigned shifts and special events requiring police services were then posted on a Police Department bulletin board. Any Patrolman or part-time officer who wished to work the unassigned shift or special event would signify his intention to work the shift or event by penning in his name on the posted schedule. The Police Department employs approximately 8-10 part-time officers. 5. The "posting and bidding" procedure for filling unassigned shifts and special events was used regardless whether there were 3 or 4 Patrol- men working during a particular week. On occasion there would be only 3 Patrolmen on duty during a week, as the fourth Patrolman would be on vacation, at the reserves, or would be absent for some other reason. The shifts which would have been assigned to the absent Patrolman were posted for bidding along with all other unassigned shifts and events. The Chief has never experienced major difficulty filling open shifts through the posting and bidding procedure, even when there were only 3 Patrolmen on duty. On those few occasions when no Patrolman or part-time officer signed up for an unassigned shift or event, the Chief of Police would call the Sheriff's Depart- ment and arrange for a deputy sheriff to cover the shift or event. Occasionally, an individual who signed up for a shift "canceled out" shortly before he came on duty. In that event, the Patrolman or part-time officer who was on duty stayed on duty for the next shift as well. 6. The changed schedule which the Chief posted on the evening of October 1, 1979, assigned each of the 3 remaining Patrolmen to seven shifts for the upcoming week. The effect of the change in schedules was that each Patrolman's work week was increased from 40 to 56 hours, and the posting and bidding procedure was in effect eliminated. In addition, there were no scheduled days off for the Patrolmen. The Patrolmen could get a day off if they could find a replacement, but, failing that, they were required to work seven days per week. The shift schedule implemented on October 1, 1979 has remained in effect to date. 7. The Patrolman on duty the evening of October 1, 1979 was the job steward for the Patrolmen and Dispatchers bargaining unit. When the Chief posted the new schedule, the Patrolman protested about the change in schedules, stating that he would have to file a prohibited practice charge if the new schedule was followed. The Chief when he arrived at the Police Department the next morning was confronted by a second Patrolman, who vehemently protested the change in schedule. The steward subsequently discussed the change in schedules with the Chief, telling the Chief that the Patrolmen were dissatisfied with the new schedule. The Patrolmen contacted Local 48 about the schedule change, and on October 9, 1979 the Town received the prohibited practice complaint instituting this case. 8. Ten persons have applied for the vacant Patrolman's position. The Town has not yet interviewed any of these applicants. The Chief of Police has recently been contacted by a former Patrolman who presently is on military duty. The former Patrolman informed the Chief that he may be released from the military in early 1980, and would like to return to his Patrolman's Position in the event of his release. -2- ______________________________________________________________________________ DECISION Local 48 charges that the Town violated 26 M.R.S.A. 964(1)(A) and (E) by unilaterally changing the shift schedule without bargaining with the Patrolmen's bargaining agent. The Town concedes that it unilaterally changed the schedule, but argues that its failure to bargain about the change is justified by the emergency situation created by the resignation of a Patrol- man. We find that the unilateral change is not justified by the business exigency exception to the rule prohibiting unilateral changes in wages, hours and working conditions, and order remedies necessary to effectuate the policies of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. ("Act"). The prohibition of an employer's unilateral changes in wages, hours and working conditions is well known. See, e.g., N.L.R.B. v. Katz, 369 U.S. 736 (1962); Lake Teachers Association v. Mount Vernon School Committee, MLRB No. 78-15 (1978). The rule prohibiting unilateral changes in the terms and con- ditions of employment is fully discussed in Teamsters Local 48 v. Town of Jay, MLRB No. 80-02 (1979), and need not be repeated here. Suffice it to say that employer changes in the mandatory subjects of bargaining specified in Section 965(1)(C) constitutes a per se violation of Section 964(1)(E), when the employer does not first negotiate the changes with the employees' bargaining agent. The Town's unilateral change in the shift schedule plainly had an immediate and drastic effect on the Patrolmen's hours and working conditions. By assigning each Patrolman to seven shifts per week instead of the usual five shifts, the Town increased the work week from 40 to 56 hours. The new schedule required the Patrolmen to work seven days per week with no days off, unless the Patrolman could find a substitute. The "bidding and posting" procedure for filling open shifts, which previously had been followed even when only 3 Patrolmen were on duty, was in effect eliminated. The change in schedules was a "unilateral" act on the part of the Town, as no effort was made even to contact, let alone negotiate with, Local 48 regarding the change. The Town argues, however, that its unilateral change in hours and working conditions was justified because a business emergency existed. Because a Patrolman had resigned, the Town contends, the Town could unilaterally change the shift schedule so as to provide 24-hour police protection. We have recognized a limited "business exigency" exception to the rule prohibiting unilateral changes, but: "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." Maine State Employees Association v. State of Maine, MLRB No. 78-23 at 4 (1978); see also M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36, et al. at 20 (1979). The resignation of the Patrolman was hardly a sufficient business emergency to justify the Town's long-term implementation of the shift change. The Department had provided 24-hour protection under the "post and bid" procedure prior to October 1, 1979 when only 3 Patrolmen were on duty. There is no reason to believe -3- ______________________________________________________________________________ that it could not have continued to provide the required protection through the procedure after the resignation. Since the resignation came on fairly short notice, the Town was justified in assigning the Patrolmen to 7 shifts per week for a week or two, to provide the Chief sufficient time to post and take bids for the additional open shifts. That was the procedure which had been successfully followed in the past when only 3 Patrolmen were available for assignments. The Town did not revert to the "post and bid" procedure once the Chief had time to post the additional unassigned shifts, however. Instead, it ignored the procedure, and has continued to date its rather draconian scheduling of the Patrolmen to work seven days per week. Had the Town tried to use the "post and bid" procedure, and found con- trary to past experience that it was inadequate to provide sufficient protection, then our conclusion might be different. But where the Town has ignored the procedure, and there is no reason to believe that the procedure would not continue to provide sufficient manpower, we must conclude that there was no business emergency after the first week or so to justify the change in schedules. We accordingly find that the Town's unilateral change in the shift schedule constitutes a per se violation of Section 964(1)(E). The Town's unilateral change also constitutes a violation of Section 964(1)(A). The unilateral change did reasonably tend to interfere with and coerce the Patrolmen in the free exercise of their Section 963 rights, especially since there was no reason for the Town not to revert to "posting and bidding" within a week or so after the resignation. See Teamsters Local 48 v. Town of Jay, supra. Such restraint and interference with the Patrol- men's organizational and bargaining rights violates Section 964(1)(A). We also note that the Town of Jay now has been found to have made four unlawful changes in the Patrolmen's wages, hours and working conditions since Local 48 was elected the Patrolmen's bargaining agent. See Teamsters Local 48 v. Town of Jay, supra. Among these changes was a change in the shift schedule identical to the change at issue here, made for a two-week period in July and August, 1979. Had our decision and order in Case No. 80-02 been released at the time of the October 1, 1979 shift schedule change, we would exercise our full remedial authority to remedy the violations found in this case. We consider that the Town now has been placed on sufficient notice that it must not change the Patrolmen's wages, hours and working conditions without first bargaining the change with Local 48. We will treat any further uni- lateral changes by the Town as a most serious matter. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968, it is hereby ORDERED: -4- ______________________________________________________________________________ That the Town of Jay and its Town Manager Michael Houlihan, and their representatives and agents, 1. Cease and desist from changing any aspect of the Patrolmen's wages, hours, and working conditions without first bargaining the change with the Patrolmen's collective bar- gaining agent. 2. Reinstitute immediately the practice of scheduling the Patrolmen for 40 hour work weeks, with all unassigned shifts and events being posted for bids by the Policemen and the part-time officers. 3. Post copies of the attached notice on all bulletin boards in the Police Department for a period of 60 consecutive days. Dated at Augusta, Maine this 9th day of January, 1980. MAINE LABOR RELATIONS BOARD /s/____________________________________ Edward H. Keith Chairman /s/____________________________________ Don R. Ziegenbein Employer Representative /s/____________________________________ Harold S. Noddin Alternate Employee Representative -5- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL stop changing the Patrolmen's wages, hours, and working condi- tions without first bargaining with the Patrolmen's collective bargaining agent. (2) WE WILL immediately reinstate the practice of scheduling the Patrolmen for 40-hour work weeks, with all unassigned shifts being posted for bid. TOWN OF JAY Dated _______________ By ________________________________________________ (Representative) (Title) This Notice must remain posted for 60 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, Defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289-2016.