Teamsters Local Union No. 48 v. Washington County Commissioners, MLRB No. 89-07 (Apr. 4, 1989), rev'd, No. CV-89-163 (Me. Super. Ct., Ken. Cty., Oct. 13, 1989), Decision and Order on Remand, MLRB No. 89-07 (Dec. 12, 1989) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 89-07 Issued: April 4, 1989 ____________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and ) University Employees in the ) State of Maine, ) ) Complainant, ) DECISION AND ORDER ) v. ) ) WASHINGTON COUNTY COMMISSIONERS, ) ) Respondents. ) ____________________________________) The question presented in this prohibited practice case is whether the Washington County Commissioners (hereinafter referred to as "Employer") violated 26 M.R.S.A. 964(1)(E) by unilaterally changing the day on which bargaining unit employees are paid. We hold that the Employer's action violated the Municipal Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. Ch. 9-A (1988). We will, therefore, fashion a remedy appropriate to redress this violation and to effectuate the policies of the Act. The prohibited practice complaint was filed on September 22, 1988, pursuant to 26 M.R.S.A. 968(5)(B) by Teamsters Local Union No. 48 ("Union"). The Union's complaint charges that the Employer violated the section of the Act mentioned in the preceding paragraph by unilat- erally changing the day on which bargaining unit employees are paid, from Friday of the week in which the wages are earned to Friday of the following week. The Employer filed its answer on October 14, 1988, denying that its action transgressed any provision of the Act, alleging that its action was permitted by the parties' collective bargaining agreement, suggesting that the dispute is the subject of the bargaining agreement grievance and arbitration process and that the Maine Labor Relations Board ("Board") should defer handling of the matter until the conclusion of the grievance and arbitration process, averring that the employer's action was, at most, a de minimis violation of the parties' collective bargaining agreement that did not rise to the level of violating 964(l)(E) of the Act, alleging that the complaint was moot, -1- and moving to dismiss the Union's complaint. In lieu of the usual prehearing conference, counsel for the par- ties reached a stipulation of relevant facts, decided to submit the dispute to the Board for decision on the basis of said stipulation and documentary exhibits, and agreed to present their arguments through memoranda of law. The parties filed written briefs, the last of which was received on January 4, 1989, which were considered by the Board in reaching its decision. The Board, Alternate Chairman Jessie B. Gunther presiding with Alternate Employer Representative Jim A. McGregor and Employee Representative George W. Lambertson, met to deliberate on the case on February 23, 1989. JURISDICTION The Complainant Teamsters Local Union No. 48, State, County, Municipal and University Employees in the State of Maine is the duly certified bargaining agent, within the definition of 26 M.R.S.A. 962(2), for the Washington County Sheriff's Department and Telecommu- nications Unit and the Washington County Janitors Unit. The Respondents Washington County Commissioners are, together, the public employer, within the definition of 26 M.R.S.A. 962(7), of the employees whose positions are included in the bargaining units mentioned in the pre- ceding sentence. The jurisdiction of the Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. Complainant, Teamsters Local Union No. 48, State, County, Municipal and University Employees in the State of Maine, is the duly certified bargaining agent, within the definition of 26 M.R.S.A. 962(2), for the Washington County Sheriff's Department and Telecommunications Unit and the Washington County Janitors Unit. 2. Respondents, the Washington County Commissioners, are the public employer, within the definition of 26 M.R.S.A. 962(7), of the employees whose positions are included in the bargaining units mentioned in the preceding paragraph. -2- 3. A collective bargaining agreement between Complainant and Respondents is in effect governing the terms and conditions of employment of the Washington County Sheriff's Department Patrol, Corrections, Dispatchers and Janitorial Unit. The relevant agreement is in effect from January 1, 1986 until December 31, 1988. 4. During the spring of 1988, an audit of Washington County finances was conducted by the State of Maine Department of Audit. During the course of that audit, the auditors dis- covered that Washington County was paying its employees on each Friday for a work week that ended on the following Saturday. Because employees were in many instances being paid in advance of work performed and before time cards were turned in showing actual hours worked, including overtime, and any sick leave, jury duty leave, vacation, etc. used, adjustments to the payroll continually had to be made in subsequent weeks to reflect the difference between what had been paid or credited to each employee and what had actually been earned or used. 5. The Department of Audit determined that paying employees in advance did not conform to generally accepted accounting principles. During a meeting with the Commissioners to review the results of the audit, the Department advised the County that proper accounting principles mandated that employees be paid after the work period ended. 6. The Department of Audit explained the meaning of the recom- mendation mentioned in the preceding paragraph through a letter to the Washington County Commissioners dated October 20, 1988, that stated: This recommendation addresses the problem that the county employees are being paid on Friday for the work period that ends on Saturday. In order to improve controls over the payroll function we believe, that proper accounting mandates, the employees should be paid after the work period ends. The recommendation simply requested the commissioners to review this matter. Upon review of the above, the Board finds that the Department of Audit's recommendation suggested, but did not require, that the Employer implement the change discussed therein. 7. As a result of the audit recommendations of the State of Maine Department of Audit, the Commissioners decided, on May 25, 1988, that beginning with the first pay period in September, 1988, paychecks would be issued with a one week delay rather than on the Friday of the work week completed. 8. Prior to February 28, 1986, County employees had been paid on Mondays following the week in which work was performed. -3- Effective February 28, 1986, the County decided to change payday to Fridays of the week in which the work was per- formed. Although the County was unable to find a record reflecting when notice was given to county employees, notice of the payroll change was given in advance. This change was made without prior bargaining with the Union, and the Union filed no charge or grievance with respect to the change. 9. Article XXXVI of the parties' collective bargaining agreement, mentioned in paragraph 3 hereof, entitled "Scope of Agreement," states that: "This Agreement represeents [sic] the entire agreement between the parties, who agree that all matters that were or might have been the subject of negotiations have been fully disclosed and resolved as expressed herein, and they mutually waive all bargaining rights during the term of the Agreement." 10. Article V of the parties' collective bargaining agreement, noted in paragraph 3 above, entitled "Management Rights" states: Management of the operations, and the direc- tion of the work force, including but not limited to the establishment and changes of reasonable rules and regulations, including without limita- tion, operational, safety, health and sanitation rules, the right to hire, promote, transfer and assign work, discharge or discipline for just cause, the right to schedule hours and to require such overtime work as is necessary for County operations, the right to relieve employees from duty because of lack of work, the right to increase or decrease the work force and the right to decide the number and location of its opera- tions, quality and quantity of work to be per- formed, the personnel required in supervisory, clerical, and other positions not included in the bargaining unit, the source of an applicant for employment, shall be solely and exclusively vested in the County subject only to limitations as are expressly provided for in this Agreement. The County shall have all such rights as are not specifically granted herein to the Union. The County, by not exercising rights reserved to it under this Management Rights clause or by exer- cising them in a particular way, shall not be deemed to have waived such rights or to have waived the right to exercise them in some other way. 11. On May 26, 1988, a memorandum was sent to all Washington County employees, advising them that the Commissioners had accepted the recommendation of the Maine State Audit -4- Department and consequently, beginning in September, employees would be paid on the Friday following the week during which work was performed. No written notice of the payroll change was sent to Complainant. 12. A "Grievance Report" signed by shop steward Lance Robinson on June 3, 1988 protesting the announced payroll change was submitted to the Commissioners on June 7, 1988. 13. On June 3, 1988, employees were notified that, in accordance with another recommendation of the Maine State Department of Audit, the Commissioners had adopted a new payroll policy under which employees would receive paychecks only if they had submitted a time sheet by the established deadline. This policy came into effect on July 1, 1988. 14. In a letter dated June 16, 1988, Donald M. Grant, Chairman of the Washington County Board of Commissioners, informed Mr. Robinson that the June 3, 1988 grievance had been denied on procedural and substantive grounds. 15. A letter dated June 30, 1988, from Union Business Agent Paul F. Miragliuolo to Donald M. Grant, Chairman of the Washington County Commissioners, stated: Re: Class Action Grievance--Paycheck Withholding Dear Mr. Grant: Please be advised that the Union is appealing the above-named grievance to the next step in the grievance procedure, namely arbitration. Should you have any questions, please don't hesi- tate to contact my office. 16. On July 29, 1988, all employees were sent a reminder memorandum regarding the payroll restructuring scheduled for September. No written notice of the payroll change was sent to Complainant. 17. On August 26, 1988, Paul Miragliuolo, Business Agent for Complainant, telephoned Charles S. Einsiedler, Jr., attorney for Respondent, to discuss the payroll change scheduled to take effect the following week. Mr. Miragliuolo emphasized that the Union primarily was concerned that employees would go one week without a paycheck. When Mr. Einsiedler attempted to explain the Respondent's position, Mr. Miragliuolo became upset and hung up. Mr. Einsiedler wrote to Mr. Miragliuolo later that day restating the County's position with respect to the change in the date of payment and advising Mr. Miragliuolo that the County remained "willing to discuss both your interpretation of the contract or any proposals you might have to solve a potential problem so that we may avoid an unnecessary confrontation and litigation." -5- 18. On August 29, 1988, Mr. Miragliuolo responded in writing to Mr. Einsiedler and proposed that the issue be taken care of during negotiations for a new collective bargaining agreement. 19. Following receipt of that letter, Mr. Einsiedler was con- tacted by Jeffrey Neil Young, attorney for the Union. Mr. Einsiedler and Mr. Young had several discussions over a period of two days in an effort to resolve the situation. An agreement in principle was reached whereby the payroll change would be deferred until April 1989 during the week that retroactive wage increases (if any) arising out of the upcoming negotiations were paid. The agreement in principle was reached late Wednesday afternoon on August 31, 1988 but was not consummated because the County could not physically process the payroll to be ready on Friday, September 2, 1988, absent assignment of significant overtime, which the County was unwilling to do. The County offered to provide two paychecks the following Friday, September 9, 1988, but this offer was rejected. 20. Beginning with the first pay period in September, 1988, the new payroll practice was implemented. Employees received no paycheck on Friday, September 2, 1988, but received a paycheck on September 9, 1988 for work performed during the week of August 28 through September 3, 1988. Employees have been paid weekly every Friday thereafter for work performed through the preceding Saturday. 21. On September 19, 1988, Respondents were served with the instant prohibited practice complaint. DISCUSSION The first issue to be considered is whether the Board should defer resolution of the instant dispute to the grievance arbitration process provided by the parties' collective bargaining agreement. While grievance arbitration is the "desirable" method for resolving disputes arising under collective bargaining agreements, State of Maine v. Maine State Employees Association, 499 A.2d 1228, 1231-32 (Me. 1985), the Legislature has explicitly provided that the Board's prohibited practice jurisdiction "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." 26 M.R.S.A. 968(5)(A). Deferral to the grievance arbitration process is a matter reserved to the Board's discretion and exercise of deferral will turn on the circumstances of each particular case. Maine State Employees Assocation v. State of Maine, MLRB No. 86-09, 9 NPER ME-17010, slip op. at 6 (Apr. 23, 1986). -6- The event charged in the complaint occurred on September 2, 1988. Despite the fact that the Union purported to invoke the final step of the bargaining agreement's grievance procedure by letter dated June 30, 1988, the parties' stipulation filed on December 1, 1988 makes no reference whatsoever to the progress of the dispute through the grievance arbitration procedure. Over six months have elapsed since the charged conduct occurred, the parties have gone to significant expense to fully argue the merits of the case before this Board, the matter is ripe for decision, and we see nothing to be gained by deferring to the arbitral process at this juncture. The duty to bargain collectively continues throughout the period when a unit of public employees is represented by a certified bargaining agent, unless the public employer and the bargaining agent have reached accord to the contrary in a prior written agreement. 26 M.R.S.A. 965(1)(B). An inherent element of the statutory duty to bargain is a prohibition against public employers making a unilateral change in a mandatory subject of bargaining. The Board has discussed the unilateral change rule as follows: Changes in the mandatory subjects of bargaining implemented unilaterally by the public employer contravene the duty to bargain created by 965(1) of the Act and violate 26 M.R.S.A. 964(1)(E). The rationale behind this principle of labor law is that an employer's unilateral change in a man- datory 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 M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 1982). In order to constitute a violation of 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 Fiqhters 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. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1135 (Me. 1982). Kittery Employees Association v. Strahl, MLRB No. 86-23, 9 NPER ME-18010, slip op. at 9 (Jan. 27, 1987), citing Teamsters Local Union -7- No. 48 v. Eastport School Department, MLRB No. 85-18, 8 NPER ME-17003, slip op. at 4 (Oct. 10, 1985). All of the elements necessary to constitute an unlawful unilateral change are present in this case. The record establishes that, although the Employer gave advanced notice to the unit employees of its inten- tion to change the day on which employees are paid, the Employer never gave such notice to the Union. We have held that the duty to bargain collectively is a mutual obligation of the public employer and the bargaining agent and the employer's giving notice to the unit employees of its intention to implement a change in a mandatory sub- ject is not tantamount to giving such notice to the bargaining agent in the unilateral change context. Saco Valley Teachers Association v. Maine School Administrative District No. 6 Board of Directors, MLRB Nos. 85-07 & -09, 8 NPER ME-16013, slip op. at 11-12 (Mar. 14, 1985). Second, we have held that the topic of pay periods is a mandatory subject of bargaining and that by unilaterally changing the pay period of unit employees from weekly to bi-weekly, a public employer violated the duty to bargaining collectively. Teamsters Local Union No. 48 v. University of Maine, MLRB Nos. 78-16 & -20, 1 NPER 20-1OO21, slip op. at 6-7 (June 29, 1979). We have also had a case whose operative facts were substantially similar to those now before us. In Bath Firefighters Association v. City of Bath, MLRB No. 80-44, 3 NPER 20-12002 (Oct. 17, 1980), the accounting firm retained by the employer recommended that, in order to gain better accounting control over personnel expenditures, the employer should change its payroll system to provide for a one- week lag in the payment of wages. The employer had been preparing its payroll and issuing paychecks to its employees prior to the end of the payroll period. Id. at 2. The employer implemented the recommended change without negotiating thereon with the bargaining agents of the employees affected. The Board stated its holding as follows: We find that the City was obligated by 26 M.R.S.A. 965(1)(C) to negotiate with the Unions before implementing the new payroll system. Section 965(1)(C) requires the City to negotiate with respect to "wages, hours and working conditions." The proposed system of paying the employees one week in arrears had an effect on the employees' wages in that the plan would cause the employees to lose the time value of a week's wages. Moreover, the manner in which the -8- plan might be implemented also would have an effect on wages and accordingly is a matter about which the City is required to bargain. In short, under Section 965(1)(C) the City has the duty to bargain concerning 1) whether the new plan is to be implemented, and 2) if so, the way in which the plan will be implemented. Id. at 2. The change at issue in this case, therefore, involved a mandatory subject of bargaining. Third, the action in contention represented at change from a well-established practice. The Board has held that, by consistently paying the bargaining unit employees on a particular day of the week for a period of over one year, that practice had become well- established within the context of the unilateral change rule. Teamsters Local Union No. 48 v. Town of Jay, MLRB No. 80-02, 2 NPER 20-11006, slip op. at 3 (Dec. 26, 1979). In the instant case, the Employer had been paying the unit employees on Friday of the week in which the wages were earned for over two and one-half years; there- fore, such payment practice had become well-established. While all of the elements necessary to constitute an unlawful unilateral change have been established, the Employer denies that its action violated the duty to bargain collectively because its conduct was allegedly within the parameters of one of the four limited excep- tions to the unilateral change rule. These exceptions have been outlined as follows: (1) when a bona fide impasse has been reached between the negotiating parties, see, eg., 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, e.g., 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 nego- tiations, see, e.g., McCulloch Corp., 132 N.L.R.B. 201, 213-214 (1961). Auburn Firefighters Association v. Valente, MLRB No. 87-19, 10 NPER ME-l8O17, slip op. at 9 (Sept. 11, 1987), citing Maine State Employees Association v. State of Maine, MLRB No. 78-23, slip op. at 4 (July 15, 1978), aff'd sub nom. State of Maine v. Maine Labor Relations Board, 413 -9- A.2d 510 (Me. 1980). Of the four exceptions listed above, only the waiver exception is pertinent herein. First, a review of the totality of the circumstances established that the parties never bargained over the change at issue and, therefore, did not reach bona fide impasse thereon. Auburn Firefiqhters Association, supra, at 10-11. Second, the fact that the altered payroll resulted from a recommendation by the State Department of Audit provided a valid business reason to implement the change. Such legitimate business reason does not constitute the sort of "sudden, out-of-the-ordinary event threatening serious harm and requiring immediate managerial action" that is required to trigger the business exigency exception to the unilateral change rule. Teamsters Local Union No. 48 v. Town of Jay, MLRB No. 80-08, 2 NPER 20-11008, slip op. at 3 (Jan. 9, 1980). The practice of paying the unit employees on the Friday of the week during which the wages were earned had been followed for over two and one-half years. There was no evi- dence in the record even suggesting that such practice had actually resulted in harm to the Employer. Third, no traditional practice warranted changing the pay period for the unit employees. The crux of the Employer's defense is that the change at issue is one that the Employer is authorized to make under the parties' collec- tive bargaining agreement and that, by the provisions of said agreement, the Union has waived the right to demand negotiations over the mandatory subjects of bargaining for the term of the agreement. A waiver of the statutory right to mid-term negotiations over the man- datory subjects of bargaining must be "clear and unmistakable" to be effective. Saco Valley Teachers Association, supra, at 10-11; State of Maine v. Maine State Employees Association, 499 A.2d 1228, 1232- 1233 (Me. 1985). In examining whether the management rights and dura- tion of agreement articles of a collective bargaining agreement effected a waiver of the statutory right to mid-term bargaining, the Board stated: All contract provisions must be given due weight as the written memorialization of the understandings of the parties arrived at through the give and take of negotiations. The parties and their representatives are responsible for being fully aware of the ramifications of language incorporated in -10- their agreements; therefore, when the parties incorporate "boilerplate" language in their contracts they are account- able for understanding the application of such language, including the generally accepted meaning accorded labor relations terms of art, to their own circumstances. However, the right to bargain proposed changes in working conditions is a statutory and not a contractual right, the contractual waiver of which must be established by evidence of clear relinquishment, whether by express contract term or necessary implication. M.S.A.D. No. 54 Education Association v. M.S.A.D. No. 54, MLRB No. 86-12, 9 NPER ME-18004, slip op. at 12 (Oct. 8, 1986). In considering the waiver issue in the instant controvery, we must examine both the management rights and scope of agreement articles of the relevant collective bargaining agreement. The scope of agreement article of the parties' collective bargaining agreement is set forth in full in paragraph 9 of our find- ings of fact. Consistent with the decision of the Law Court in State of Maine v. Maine State Employees Association, 499 A.2d at 1232-1233, we conclude that the broad language of this article clearly and unmistakably waived both parties' right to demand negotiations during the term of the collective bargaining agreement. This holding does not end our inquiry, since we must also determine whether the Employer was permitted to change the day on which the unit employees were paid under the parties' collective bargaining agreement. During the term of a collective bargaining agreement, the employer may only lawfully implement such changes in the mandatory subjects of bargaining as are permitted under the terms of the agreement or which are otherwise consistent with the unilateral change rule. In the instant case, the Employer avers that its authority to change the day on which the unit employees are paid is based on the management rights article of the parties' collective bargaining agreement. The relevant management rights article is quoted in its entirety in paragraph 10 of the foregoing findings of fact. The spe- cific authorizations contained in the first paragraph of the article do not include the right of the Employer to implement the change at issue. The second paragraph of the relevant management rights article purports to reserve to the Employer all rights not specifically -11- granted to the Union by the agreement. Both the Law Court and this Board have held that there are no inherent management rights, other than the educational policy exception, in public sector labor relations in Maine.Bath Firefighters Association, supra, at 3; citing State of Maine v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980). The attempt to reserve inherent management rights does not constitute a clear and unmistakable grant of prerogative to make the change at issue in derogation of the duty to negotiate thereon. The Employer has also argued that, by failing to object to the change of payday effected on February 28, 1986, the Union has waived the right to object to the change at issue. We reject this contention for two reasons. First, the 1986 change involved changing the day on which the unit employees were paid, from Monday of the following week to Friday of the week during which the wages being paid were earned. Since this change resulted in the unit employees receiving their earned wages earlier than they previously had, the employees probably perceived the change as favorable and did not want their bargaining agent to object thereto. Second, this Board has held that a single instance of failure to object to a prior unilateral change does not, absent extraordinary circumstances, constitute a clear and unmistakable waiver of the right to object to subsequent unilateral changes in the mandatory subjects of bargaining. Maine Teachers Association/National Education Association v. State Board of Education, MLRB No. 86-14, 9 NPER ME-18005, slip op. at 12 (Nov. 18, 1986). Since the Employer was not authorized by the collective bargaining agreement to change the day on which the unit employees are paid and since the Union did not otherwise waive its right to object to the Employer's action, we hold that the Employer's unilateral implementation of this change violated 26 M.R.S.A. 964(1)(E). The Employer's final defenses are that the violation established in the record is de minimis or that the instant controversy is moot. We cannot accept either of these arguments. We held, in Teamsters Local Union No. 48 v. Town of Jay, MLRB No. 80-02, supra, at 3-4, that changing the unit employees' payday, from Tuesdays to Wednesdays of the same week, constituted a violation of the duty to negotiate in -12- good faith. The withholding of one week's wages, as was the case here, is a far more serious matter. Second, the unlawful unilateral change resulted in the unit employees losing the time value of one week's wages, Bath Firefighters Association, supra, at 2, and since this harm continues, the instant controversy is not moot. Since we have concluded that the Employer's action violated 26 M.R.S.A. 964(1)(E), we will provide appropriate remedies to effec- tuate the policies of the Act. 26 M.R.S.A. 968(5)(C). In exer- cising our remedial authority, we seek "a restoration of the situation, as nearly as possible, to that which would have obtained" but for the commission of the prohibited practice. Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980); Coulombe v. City of South Portland, MLRB No. 86-11, 9 NPER ME-18008, slip op. at 25 (Dec. 29, 1986). To restore the status quo ante, we will order the Employer to reinstate the practice of paying the unit employees on Friday of the same week during which the wages being paid were earned. We will also order that the Employer, on a payday within 30 days of the date of this order, pay to each unit employee the wages that that individual earns during that week plus the one week's wages being withheld for that employee. We have fashioned this remedial order to make the employees whole, while according the Employer a reasonable period of time in which to carry out the payroll change required. 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(5), it is hereby ORDERED: That the Respondents, Washington County Commissioners, and their representatives and agents, shall: (1) Cease and desist from making unlawful unilateral changes in the day on which the employees that constitute the Washington County Sheriff's Department and Telecommunications Unit and the Washington County Janitors Unit are paid; (2) Within thirty (30) days of the date of this order, reinstate the policy of paying the employees that -13- constitute the bargaining units mentioned in number 1 hereof on Friday of the week during which the wages being paid are earned; and (3) On a payday occurring within thirty (30) days of the date of this order, pay to each employee in the aforementioned bargaining units the wages that that individual earned during that week plus the one week's wages that are being withheld for that employee. Dated at Augusta, Maine, this 4th day of April, 1989. MAINE LABOR RELATIONS BOARD /s/__________________________ The parties are advised of Jessie B. Gunther their right pursuant to 26 Alternate Chairman M.R.S.A. 968(5)(F) (1988) to seek review of this decision and order by the Superior Court by filing a /s/__________________________ complaint in accordance with Jimmy A. McGregor Rule 80B of the Rules of Civil Alternate Employer Representative Procedure within 15 days of the date of this decision. /s/__________________________ George W. Lambertson Employee Representative ------------------------------------------------------------- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 89-07 Issued: December 12, 1989 ___________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and ) University Employees in the ) State of Maine, ) ) Complainant, ) ) DECISION AND ORDER ON REMAND v. ) ) WASHINGTON COUNTY COMMISSIONERS, ) ) Respondents. ) ___________________________________) This is a prohibited practice case, remanded to the Maine Labor Relations Board ("Board") on October 13, 1989, by Order of the Superior Court in Washington County Commissioners v. Teamsters Local Union No. 48, No. CV-89-163 (Me. Super. Ct., Ken. Cty., Oct. 13, 1989). The Court's Order mandated as follows: "Appeal GRANTED. April 4, 1989 Order of the Maine Labor Relations Board VACATED. Case remanded to the Maine Labor Relations Board for entry or an order dismissing defendant union's prohibited practice complaint." The Board's jurisdiction to render this decision and order lies in 26 M.R.S.A. 968(5)(C) (1988). The findings of fact reported on pages 2-6 of our April 4, 1989 order were not challenged on appeal and are incorporated herein by reference. The Superior Court concluded that the Law Court decision in State v. Maine State Employees Association, 499 A.2d 1228 (Me. 1985), is controlling. 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(5), it is ORDERED: -1- That the prohibited practice complaint brought by Teamsters Local Union No. 48 against the Washington County Commissioners, filed on September 22, 1988, in Case No. 89-07, is hereby dismissed. Dated at Augusta, Maine, this 12th day of December, 1989. MAINE LABOR RELATIONS BOARD /s/__________________________ The parties are advised Jessie B. Gunther of their right pursuant Alternate Chair to 26 M.R.S.A. 968(5)(F) (1988) to seek review of this decision and order by the Superior Court by /s/__________________________ filing a complaint in Jimmy A. McGregor accordance with Rule 80B Alternate Employer Representative of the Rules of Civil Procedure within 15 days of the date of this decision. /s/__________________________ George W. Lambertson Employee Representative -2-