STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 92-28 Issued: November 5, 1992 _________________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) AROOSTOOK COUNTY SHERIFF'S DEPARTMENT ) ) Respondent. ) _________________________________________) On February 11, 1992, Teamsters Union Local 340 ("Teamsters") filed a prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that the Aroostook County Sheriff's Department ("Department") 1) had failed to bargain over furlough days for employees, in violation of sections 964(1)(A) and (E) of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(A) and (E) (1988), and 2) had dealt directly with said employees in implementing the furlough program, in violation of section 964(1)(A) of the MPELRL. In its response, the Department pleaded no violation, a de minimus violation, waiver of the right to bargain, and the right of free speech. The Department also asked that it be awarded reasonable costs and attorneys' fees. On April 14, 1992, Board Chair Peter T. Dawson convened the prehearing conference in this matter. His Prehearing Memorandum and Order, dated April 23, 1992, is incorporated in and made a part of this decision and order. Due to a series of delays caused by the unavailability of one or both parties, the evidentiary hearing in this matter was held on August 17, 1992. Chair Dawson presided over the hearing, accompanied by Employer Representative Jim A. McGregor and Employee Representative George W. Lambertson. Business agent Carl Guignard represented the Teamsters, and Linda D. McGill, Esquire, represented the Department. At hearing, the _______________________ 1/On February 20th and 24th, deficiencies in the filing were corrected. -1- parties were able to reach three factual stipulations, which have been incorporated herein. The parties also stipulated to the admission of Exhibits C-1 through C-18, with the following limitations: the Department objects to Exhibits C-11 through C-18 on the grounds of relevancy only; and C-3 and C-8 are offered by the Teamsters only to establish the method by which it first received notice of the Department's furlough decision. These stipulations obviated the need for testimony on certain issues. For those issues on which an evidentiary hearing was held, the parties were given full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make oral argument. Both parties filed posthearing briefs; only the Department filed a reply brief, which was received on September 22, 1992. The Board deliberated the case on October 7, 1992. JURISDICTION Teamsters Union Local 340 is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for a bargaining unit of full-time ser- geants, officers/dispatchers, head cook and cooks employed by the Aroostook County Sheriff's Department. The Department is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991), as amended by P.L. 1992, ch. 843 4, of the employees of that unit. The jurisdiction of the Board to hear this case and to render a decision and order lies in 26 M.R.S.A. 968(5) (1988 and Supp. 1991). STIPULATIONS 1. Budgetary problems caused the decision to implement the furlough days. 2. The County implemented furlough days without negotiating with the Union and over the objection of the Union and the Union's request to bargain. 3. The County asked the Union to waive the 3 1/2 percent wage increase as reflected in Exhibit C-11 due to budgetary problems. -2- FINDINGS OF FACT Upon review of the entire record, the Board further finds: 1. On June 20, 1990, the Teamsters and the Department signed a collective bargaining agreement effective through June 30, 1992 ("Agree- ment"). Article 1 of the Agreement states that it covers "rates of pay, hours of work and conditions of employment for all full-time employees of the Department," with some exceptions irrelevant here. 2. Article 4, MANAGEMENT RIGHTS, among other things reserves to management the right to "lay-off and recall" and the right "to schedule the work." 3. Article 7, section 4, states: Section 4 - Layoffs. Layoffs will be handled in the following manner: (a) In the event of a reduction in force, employees will be laid off in the reverse order of the line of progression; (b) Upon being laid off to the entry level classifi- cation, an employee may then be assigned to any other job classification they are qualified to perform if there is a junior employee holding that classification; (c) Layoffs will be made from the officer classifica- tion; (d) Recalls from lay off shall be in order of senior- ity in the following order: first, to the employees on the recall list in the Division where the vacancy occurs and, then to others on the list; provided that in all instances, the employee has the qualifications and ability to perform the work required; and (e) All employees recalled from layoff must report to the Department for work within three (3) days. 4. Article 10, HOURS OF WORK, states: Section 1 - Work Week. The term "work week" used in this Agreement means seven (7) consecutive days of twenty-four (24) hours, starting at 12:00 midnight on Friday and ending at 12:00 midnight the following Friday. Saturdays and Sundays are ordinary work days. Section 2 - Work Day. The term "work day" used in this Agreement means any of the seven (7) consecutive twenty-four (24) -3- hour periods within the work week, beginning when the employee reports for work. Section 3 - Normal Work Day. The work day for all employees will consist of eight (8) hours of employment excluding lunch periods unless otherwise specified by the requirements of the assignment to be performed. Section 4 - Starting Time. Starting time shall be contin- gent upon operational requirements and shall be designated by the Department. Section 5 - Standard Work Week 40/43 Hours. The standard work week for employees in the Corrections Division and the court security officers of the Judicial Division will be forty (40) hours; and in the Law Enforcement Division and for the transpor- tation officers of the Judicial Division will be forty-three (43) hours. Section 6 - No Guarantee. Nothing herein contained shall in any way be construed as a guarantee of full-time employment. Section 7 - Posting Work Schedule. Work schedules will be posted regularly and it will be the responsibility of each employ- ee to check the schedule. Work schedules will be established to meet the demands of coverage for the Department. Vacancies will be filled in accordance with Article 11, Section 4 of this Agreement. 5. Article 11, section 4, as amended by the contract addendum in Exhibit C-17, states: Section 4. Scheduling. If the department determines that an unfilled shift is to be filled, it shall be filled as follows: a. Bargaining unit members, chosen from a rotating call list, shall be eligible to fill the following three types of shifts: 1. Vacation days of five days or less; and 2. Sick leave of five days or less; and 3. Bereavement leave of five days or less. Any time the call list has been run through once and no bargaining unit employee is found to be available for the period to be filled, the Department may assign non-bargaining unit employees for the period of time to be filled. b. The Department may utilize non-bargaining unit employees to fill any other type of vacancy, not listed in Section 4(a). (sic) including, but not limited to, the following: -4- 1. Any workers' compensation injury, no matter how many days in duration; 2. Any spare shift; Examples would be the Saturday "spare" Shift "A" or when the Department requires additional personnel at the jail for emergency or other contingency. 3. Any suspension of a bargaining unit member; or 4. Any absence of more than five days. c. In filling any vacancies, if a bargaining unit member is not available as set forth in Section 4(a) or a non-bargaining unit member is not available as set forth in Section 4(b), then , (sic) the Department has the right to mandate overtime. 6. Article 27, section 9, states: Section 9 - Protection of Conditions - The Department agrees that all conditions of employment relating to wages, hours of work, and overtime differentials shall be maintained at not less than the highest standards in effect at the time of the signing of this Agreement; and such conditions of employ- ment shall be improved wherever specific provisions for improvement are made elsewhere in this Agreement. 7. Article 32, section 1, reads: Section 1 - Complete Agreement. The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreement arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Department and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not speci- fically referred to or covered in this Agreement, even though such subjects or matter may not have been within the knowledge or con- templation of either or both of the parties at the time they nego- tiated or signed this Agreement. 8. Appendix C of the Agreement provides for a 3 1/2 percent increase in hourly rates for unit employees, effective January 1, 1992. 9. By letter dated November 12, 1991, the Department requested that the Teamsters seek approval from its membership to forego the 3 1/2 percent -5- raise scheduled to take effect on January 1, 1992, due to constraints in the budget recommended to the County Commissioners by the County Adminis- trator in a meeting on November 6, 1991. The Department stated that "the alternative approach to reducing wage costs is likely to require a layoff of two or three positions." Employees voted to reject the request, and the Teamsters so notified the Department. 10. The Teamsters first learned about the plan for furlough days through a newspaper article. Thereafter, on December 10, 1991, counsel for the Department faxed a copy of a letter it had sent to the Teamsters dated December 5, 1991, and which the Teamsters never received. The fax of the original letter, from counsel for the Department to Teamsters business agent Guignard, reads as follows: Following up on my letter to you of November 12, 1991, it is my understanding that on November 27, 1991, the union membership turned down the County's request that the County be permitted to forgo the 3 1/2% wage increase scheduled to go into effect on January 1, 1992. I have just been advised that on December 4, 1991, the County Commissioners confirmed that the January 1992 wage increase will go into effect as scheduled. However, since last I wrote, the budgetary constraints have only worsened. The Commissioners evaluated various ways of reducing wage expenses other than by the prognosed wage freeze. While my earlier letter suggested that this might take the form of layoffs, the Commissioners have decided to retain the existing labor force without laying off and instead to meet the 1992 budget by way of six (6) furlough days. The decision to proceed with furlough days without pay in lieu of layoffs applies across the board to both bargaining unit and non- bargaining unit employees. While Danny relayed that he has not yet received written confirmation from you of the union vote, he wanted you to be apprised of this decision as soon as possible. It is the intent of the County to schedule the furlough days if possible, by mutual agreement between the respective Department Heads and their employees. At this point, no decision has been made as to when the furloughs will begin, but I trust that further information will be forthcoming. 11. In a letter to counsel for the Department dated December 11, 1991, Mr. Guignard stated, in part: "As we discussed the Union's position is that furloughs are contrary to the agreement between the parties and should not be unilaterally implemented." In a response dated December 19, 1991, -6- counsel for the Department stated, in part: "I would be pleased to meet with you to discuss the effects of the County's decision to undertake a furlough program. Please give me a call and we can arrange for a time to meet." 12. In a memo to employees dated January 23, 1992, Sheriff Wheeler stated: As you know, we have all been mandated to take six furlough days during 1992. Obviously, nobody likes furloughs as it not only affects individual income, but can affect the effectiveness of our operations. We'll have to all work together to provide for as little adverse impact as possible. In order to provide for a uniform flow of furlough days taken, a policy has been drafted which will be posted for your review. We will try to stay within the confines of this policy. Our intention is to provide the schedule of furlough days when preferred by each employee if possible. Per policy, we will try to cause the assignment of the first furlough day(s) before the end of February. If someone wants to take more than one, an effort will be made to provide for the assignment of such when scheduling will permit. Please fill out the attached form and submit to your immediate supervisor for review and any further input. Even if you do not wish to discuss furlough or do not have a preferred time for furlough, please send the form through proper channels so that we will have confirmation that you do not have a preferred time to be assigned. The supervisor will forward your request form with the added notes to the Division Leader (by January 30 for the first timeframe) so that efforts can be made to schedule appropriately. Thank-you in advance for your attention and cooperation. 13. Attached to the memo quoted in paragraph 11 was a one-page form for employees to fill out, as well as a policy statement for furlough assignments. Following are the contents of the one-page form: Edgar M. Wheeler Donald B. Hallett Sheriff Chief Deputy Name: _________________________________ Timeframe # ______ -7- Please check the applicable block: _ l_l I do not have any preferance (sic) to the date to be assigned as furlough within the first timeframe. _ l_l I do not wish to discuss furloughs in any manner. _ l_l I prefer the following (one) day to be assigned as furlough within the timeframe. 1st choice ____________________ 2nd choice ____________________ 3rd choice ____________________ _ l_l I prefer to be assigned more than one furlough day within the timeframe I prefer the following dates: __________________ __________________ __________________ __________________ __________________ __________________ __________________ __________________ __________________ __________________ __________________ __________________ Supervisors notes or recommendations: ______________________ ____________________________________________________________ ____________________________________________________________ Timeframes First Timeframe: January 1 to February 29, 1992 Second Timeframe: March 1 to April 30, 1992 Third Timeframe: May 1 to June 30, 1992 Fourth Timeframe: July 1 to August 31, 1992 Fifth Timeframe: September 1 to October 31, 1992 Sixth Timeframe: November 1 to November 30, 1992 -8- 14. The policy statement that was attached to the memo reads as follows: AROOSTOOK COUNTY SHERIFF'S DEPARTMENT POLICY STATEMENT I. FURLOUGH ASSIGNMENTS 1. Each full-time Department employee assigned to the Prisoner Transportation Division shall be assigned six furlough days in 1992 during such time(s) when Court is not in session due to Judge's Conferences, etc. a. Such prospective dates shall be scheduled by the Division II Commander with approval by the Chief Deputy. 2. All other Sheriff's Department employee (sic), except those assigned to the Court Security Component, shall be assigned six furlough days in 1992. The Division Commanding Officer or Administrator shall be responsible for assignment of furlough days for each affected employee within their Division in a manner which will provide for, at a minimum, the following time frames: a. At least one furlough day by the end of February b. At least two furlough days by the end of April c. At least three furlough days by the end of June d. At least four furlough days by the end of August e. At least five furlough days by the end of October f. At least six furlough days by the end of November 2. (sic) Each employee may request of the immediate super- visor specific date(s) on a form designed for such in ad- vance of publication of the affected schedule, and such dates may be assigned, with approval of the Commanding Officer or Administrator when minimal staffing needs can be met. a. More than one furlough day may be assigned in suc- cession when requested by an employee, with approval of the Commanding Officer, when minimal staffing needs can be met. II. ACCOUNTING AND PAY DEDUCTION 1. When a furlough day is taken, the employee shall indi- cate such on the time sheet being submitted for that pay period. -9- 2. A formal record of days taken shall be maintained by Mrs. Devou on a form designed for such. This record shall depict the date(s) each employee has taken off as fur- lough(s). a. Mrs. Devou shall provide each Division Commander, Administrator, Chief Deputy, Sheriff, and County Administrator a copy of the record at the end of each month which shall depict the flow of days taken as furlough. 3. Adjustments to each individual employee's pay shall be made by the Treasurer's office during the pay period when the furlough day(s) is taken. 15. The Department stipulates that it did not treat the furlough days as layoffs under the parties' collective bargaining agreement. According to the county administrator, a layoff eliminates positions rather than simply reducing time worked. 16. During at least the five-year period prior to institution of the furlough days at issue here, the Department has not instituted furlough days for its employees. DISCUSSION Unlawful unilateral change The first of the two charges brought by the Teamsters against the Department is that the Department's unilateral implementation of six fur- lough days for each bargaining unit employee constitutes a violation of sections 964(1)(A) and (E) of the MPELRL, 26 M.R.S.A. 964(1)(A) and (E) (1988). The Department was required to reduce the work force through layoffs under Article 7 of the Agreement, the Teamsters argue, if suf- ficient funds were not available to pay the 3 1/2 percent wage increase required by the Agreement. Alternatively, the Department should have acceded to the Teamsters' request to bargain over the furlough days, since the effect was to change hours of work and rates of pay (weekly pay), in -10- violation of the parties' contract.2 The Department disagrees that it was required to do either. There is no factual dispute regarding whether the Department's actions were unilateral -- the parties have stipulated that the Department implemented the furlough days without negotiating with the Teamsters and in spite of the Teamsters' objection and request to bargain. There is also no disagreement that the Department could have unilaterally implemented seniority-based layoffs as a means to avoid the financial impact of the 3 1/2 percent raise it had negotiated. Instead, the Department chose to spread the pain and furlough every unit employee for a total of six days -- in effect, nullifying the raise for all unit employees. The issue, then, is whether these unilaterally implemented furlough days were lawful. At the time the furlough days were implemented, a collective bargaining agreement was in force between the parties. Accordingly, it is that docu- ment that determines the rights and responsibilities of the parties, and the Board must interpret its provisions in order to determine whether an unlawful failure to bargain has occurred. State v. MSEA, 499 A.2d 1228, 1230 (Me. 1985). We begin our analysis of the Teamsters' charge with a review of Article 32 of the Agreement. Section 1 of that article reads: Section 1 - Complete Agreement. The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter of collective bargaining, and that the understanding and agreement arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Department and the Union, for the life of this Agreement, each voluntarily and unqualifiedly waives the right and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter not speci- fically referred to or covered in this Agreement, even though such subjects or matter may not have been within the knowledge or con- templation of either or both of the parties at the time they nego- tiated or signed this Agreement. _______________________ 2The Teamsters offered several side agreements, in Exhibits C-11 through C-18, to support its position. We agree with the Department that these side agreements are irrelevant in determining whether the unilateral change at issue here was lawful. Accordingly, none of these exhibits except C-17 is admitted into the record. Exhibit C-17 is admitted only for the purpose of providing the text of section 4 of Article 11 of the Agreement, which was amended by Exhibit C-17. -11- The purpose of this provision, commonly called a "zipper clause," is to avoid having to bargain mid-term over issues not covered by the contract -- that is, to "close out bargaining during the contract term and to make the written contract the exclusive statement of the parties' rights and obli- gations." R. Gorman, Basic Text on Labor Law, 471 (1976). Thus, in some jurisdictions, such a clause may be used as a "shield" -- that is, to refuse to bargain over proposed changes in the status quo regarding matters not covered by the contract -- but not as a "sword" -- to unilaterally make such changes. That is not the case in Maine. The Law Court has rejected the Board's sword/shield analysis and held that clauses that waive bargain- ing for subjects or matters not covered by the contract do authorize unilateral changes in those subjects. State v. MSEA.3 As a result, our analysis of the Agreement in connection with the disputed furlough days must be as follows: Does the Agreement expressly permit the Department to implement furlough days for unit employees? If so, no violation of the MPELRL has occurred. If not, does the Agreement expressly prohibit them? If so, the Department has violated sections 964(1)(A) and (E) of the MPELRL, since "unilateral alterations of the collective bargaining agreement are in contravention of the statutory duty to bargain in good faith," and also inherently interferes with the exercise of bargaining rights. Lane v. Board of Directors of MSAD No. 8, 447 A.2d 806, 810 (Me. 1982) (citations omitted). If the Agreement neither expressly permits the furlough days nor prohibits them, then they are not covered by the Agreement and their unilateral implementation was lawful, since in Article 32 the parties have waived their right to bargain over matters not covered by the Agreement. State v. MSEA. Before proceeding with our analysis, we note that in asserting that it has not violated the MPELRL, the Department analyzes the issues differently -- in essence, it reverses our analysis. First it argues that "it is crystal clear that furloughs are not specifically covered by the agreement." This assertion is apparently based on the fact that the word "furlough" appears nowhere in the contract. The real question, however, is _________________________ 3/As long as public sector parties continue to agree to these zipper clauses, they will be bound by the Law Court's holding. -12- whether by some other name, furlough days are either affirmatively per- mitted or prohibited in the contract. Only if they are not, are they then not "covered." The Department next states that the zipper clause in the Agreement "precludes any duty to bargain mid-term, regardless of whether an action or change is inconsistent with the agreement." Accordingly, the Department argues, if a contract violation occurred, the Teamsters' only remedy is the parties' grievance procedure. We disagree. The zipper clause at issue here only waives bargaining on matters not covered by the Agreement. If the Department's action is inconsistent with the Agreement, how can it at the same time not be "covered" by the Agreement? In this connection, the Department's reliance on State v. MSEA, and the cases cited therein, as well as on BOER v. AFSCME, No. KEN-91-638, Dec. No. 6308 (Me. Sept. 10, 1992), is misplaced. The zipper clauses in State v. MSEA, BOER v. AFSCME, NLRB v. Southern Materials Co., 447 F.2d 15 (4th Cir. 1971), NLRB v. Auto Crane Co., 536 F.2d 310 (10th Cir. 1976), and Aeronca, Inc. v. NLRB, 650 F.2d 501 (4th Cir. 1981), all waived bargaining for matters covered by the respective agreements, as well as matters not covered. As the court in Southern Materials stated so clearly, in reference to Christmas bonuses that had been unilaterally discontinued: Thus, whether the maintenance of standards clause is construed to include or exclude Christmas bonuses is immaterial with respect to the company's obligation to bargain, because the waiver of the duty to bargain expressly included that which was excluded from the contract as well as that which was included. Southern Materials, 447 F.2d at 18. Accordingly, the court stated, a contract violation would be subject to the parties' grievance procedure and not to a failure-to-bargain charge. State v. MSEA adopted that reason- ing (and as clarified in BOER v. AFSCME, extended it to apply to the viola- tion of a contract provision that itself requires bargaining, and not just to the violation of substantive contract provisions).4 Finally, the Department suggests that in any case, its action was not inconsistent with the Agreement, but rather was affirmatively permitted by it. Again, how can furloughs be affirmatively permitted and at the same ________________________ 4For two reasons, we do not read State v. MSEA to mean that the Board may never, even in the absence of an applicable zipper clause, apply its unilateral change rule during the period of an existing contract. As we -13- time not "covered" by the Agreement? Of course, if the Agreement affir- matively permitted the furlough days, no violation of either the contract or the MPELRL occurred.5 We will now proceed with the analysis we out- lined earlier. ________________________ have stated previously: While it is preferable for the parties to resolve disputes through their collectively bargained grievance procedure, the jurisdiction of the Board is not displaced by the existence or use of such a procedure. Rather, where necessary to adjudicate a prohibited practice, the Board may interpret a contract, give effect to its terms, and proscribe conduct that is a prohibited practice even though it is also a breach of contract remediable through arbitration. (Citation omitted.) Teamsters Local Union No. 48 v. City of Bangor, No. 80-46, slip op. at 2, 3 NPER 20-12000 (Me.L.R.B. Oct. 6, 1980). Nowhere in State v. MSEA did the Court suggest that it was reversing this principle, stated in a subsequent case by the Court itself: "Unilateral alterations of the collective bargaining agreement are in contravention of the statutory duty to bargain in good faith." Lane, 447 A.2d at 810. Repudiation of such a basic tenet of labor law after having cited it favorably three years earlier would cer- tainly have warranted a clear statement of intent. Second, if the Board has no authority to apply its unilateral change rule during the contract term, then its case law and rules and procedures regarding deferral to arbitration are meaningless. Where the parties have negotiated a contractual grievance procedure and an aggrieved party has filed a grievance, the Board will normally defer to arbitration any prohi- bited practice charge based on the same events, retaining jurisdiction to ensure that the arbitration procedures were fair and regular and that the result reached was not repugnant to the collective bargaining laws. The Board also gives employers the opportunity to waive procedural objections to arbitration, where deferral is requested and the union's charges could be resolved through the grievance procedure but no timely grievance has been filed. The Board does not defer, even if a grievance has been filed, where no deferral request is made, where the employer refuses to waive timeliness objections to the processing of a grievance, or where only a portion of the complaint is based on an alleged contract violation. The case now before us is just such a case -- the Teamsters have charged the Department with unlawful unilateral change and with direct dealing, a non-contract based charge. 5The Department apparently misunderstands the Board's holding in AFSCME v. Governor McKernan, No. 91-18 (Me.L.R.B. May 31, 1991). In stating that a unilateral change may constitute interference, restraint or coercion even where mid-term bargaining has been waived, the Board was referring to a unilateral change in contravention of the contract, not one permitted by the contract. -14- Furloughs affirmatively permitted by contract The Department argues that the Agreement permits it to unilaterally implement furlough days. It bases this argument on two contract provi- sions -- Article 4, and section 6 of Article 10. Article 4, Management Rights,6 grants management the right "to schedule the work." This article preserves management's right to implement and schedule furlough days, asserts the Department. We disagree. In normal usage, to "schedule" means "to appoint, assign, or designate to do or receive something at a fixed time in the future" (Webster's Third New International Dictionary); "to plan or appoint for a certain date or time" (Webster's II New Riverside University Dictionary). Both defini- tions, in conjunction with the word "work," suggest scheduling of opera- tions, and/or filling designated work slots. This meaning is suggested by two other provisions of the Agreement. Section 7 of Article 10 addresses posting of the regular "work schedule." "Work schedules will be established to meet the demands of coverage for the Department." Section 7 in turn refers to section 4 of Article 11, which addresses filling vacancies in the work schedule. There is no suggestion in either provision that scheduling of work is something other than the words themselves suggest. Since neither normal word usage nor the parties' Agreement provides support for the Department's position that management's right to "schedule the work" was intended by the parties to encompass cutting the total number of hours or days that employees will work, we must reject the Department's argument that Article 4, Management Rights, affirmatively grants the Department the right to schedule furlough days. Hours of work are manda- tory subject of bargaining. "We have held in many cases, consistent with the law under the National Labor Relations Act, that waiver of the statu- tory right to bargain in a management rights clause, zipper clause, or other waiver clause, must be 'clear and unmistakable."' Auburn Fire- fighters Association, Local 797 v. Morrison, No. 83-10, slip op. at 6 (Me.L.R.B. March 9. 1983) (citations omitted). Accordingly, waiver clauses ________________________ 6At the hearing, in response to a Board question, the Department asserted (and in fact stipulated) that it was not relying on Article 4's reservation to management of the right to "lay-off and recall" employees. -15- are read "constrictively." City of Bangor v. AFSCME, Council 74, No. CV-80-574, slip op. at 16 (Me. Super. Ct., Pen. Cty., Aug. 31, 1981), Board order aff'd (and relevant Superior Court analysis adopted), 449 A.2d 1129, 1134-5 (Me. 1982). That is especially true where other provisions in the contract appear to contradict the meaning averred by the Department. The second provision on which the Department relies, section 6 of Article 10, states that "[n]othing herein shall in any way be construed as a guarantee of full-time employment." This, according to the Department, preserves the employer's right to determine the number of days worked in any year. We will address this argument later, in connection with the argument made by the Teamsters that Article 10 has been violated. Furloughs prohibited by the Agreement The first contract provision that the Teamsters allege the Department has violated is section 4 of Article 7, which addresses layoffs: Section 4 - Layoffs. Layoffs will be handled in the following manner: (a) In the event of a reduction in force, employees will be laid off in the reverse order of the line of progression; (b) Upon being laid off to the entry level classifi- cation, an employee may then be assigned to any other job classification they are qualified to perform if there is a junior employee holding that classification; (c) Layoffs will be made from the officer classifica- tion; (d) Recalls from lay off shall be in order of senior- ity in the following order: first, to the employees on the recall list in the Division where the vacancy occurs and, then to others on the list; provided that in all instances, the employee has the qualifications and ability to perform the work required; and (e) All employees recalled from layoff must report to the Department for work within three (3) days. The Teamsters' position is that the unpaid furlough days are layoffs by another name. Since section 4 spells out a seniority system for layoffs, the Teamsters argue, the Department violated this provision when it decided to furlough all unit employees instead of laying off fewer employees -16- according to the seniority system that the parties had negotiated. The Department states simply that it has not violated section 4 (based, presum- ably, on its position at the hearing that furloughs are not layoffs), and reiterates its position that whether or not the layoff provision has been violated is irrelevant in light of the parties' zipper clause. As we pointed out earlier, however, the zipper clause only addresses matters not covered by the Agreement. Thus, if the Department's action violated a contract provision, it must logically be "covered" by the contract and be beyond the scope of the parties' zipper clause. On a previous occasion, we have had the opportunity to consider the issue of seniority versus furloughs (sometimes called work-sharing) -- in AFSCME v. Governor McKernan.7 There, Governor McKernan had announced his intention to cut costs by unilaterally implementing furlough days for bargaining unit employees, and AFSCME alleged that the Governor's actions violated the seniority provisions of the parties' collective bargaining agreement. The Board found that the furloughs were layoffs. It further found, one member dissenting, that the layoffs were lawful, since they were explicitly permitted by the contract: The management rights article granted the employer the right to "make temporary layoffs at its discre- tion," and the seniority article specified that "[l]ayoffs and recalls to work for a period of four (4) workdays or less shall be deemed temporary and shall not be subject to the provisions of this Article." We do not have such language in the Agreement now before us. Section 4 of Article 11 of the Agreement states that "[i]n the event of a reduction in force, employees will be laid off in the reverse order of the line of progression." Thus, even assuming that furlough days are layoffs (albeit temporary ones), the additional question is whether they constitute a "reduction in force" that requires utilization of seniority rights. In grievance arbitration decisions, some arbitrators have refused to find that an across-the board reduction in hours constitutes a reduction in _________________________ 7AFSCME v. Governor McKernan, No. 91-18 (Me.L.R.B. May 31, 1991), aff'd, No. CV-91-208 (Me. Super. Ct. Ken. Cty., Nov. 27, 1991), rev'd on other grounds sub nom. BOER v. AFSCME, No. KEN-91-638, Dec. No. 6308 (Me. Sept. 10, 1992). -17- force or true layoff requiring the application of seniority rights. Other arbitrators disagree.8 We need not resolve this issue, because we find that another contract provision -- section 9 of Article 27 -- has been vio- lated. Thus, even if the layoff article does not prohibit the Department's action, the Department has violated sections 964(1)(A) and (E) of the MPELRL. More specifically, the Teamsters point to Article 10, HOURS OF WORK, in conjunction with section 9 of Article 27, Protection of Conditions. Sec- tions 1 through 5 of Article 10 address the work week, work day, normal work day, starting time, and standard work week (40/43 hours). Section 9 of Article 27 states: Section 9 - Protection of Conditions - The Department agrees that all conditions of employment relating to wages, hours of work, and overtime differentials shall be maintained at not less than the highest standards in effect at the time of the signing of this Agreement; and such conditions of employ- ment shall be improved wherever specific provisions for improvement are made elsewhere in this Agreement. The Teamsters assert that together these provisions prohibit the furlough days ordered by the Department. The Department, on the other hand, points to section 6 of Article 10, which states that "[n]othing herein contained shall in any way be construed as a guarantee of full-time employment." In the Department's estimation, this provision preserves its right to deter- mine the number of days worked in any year. It has not attempted to explain the meaning of section 9 of Article 27./9 Even in the absence of a provision such as section 6, in the private sector arbitrators have generally found that a provision in a contract describing the "normal" or "regular" work week does not prevent an employer from reducing the work week (temporarily closing down operations alto- gether) due to business or operational necessity, since describing what is ________________________ 8/Of course, the specific fact situation in each case played a large role in the outcome. In a 1982 decision, Ampco-Pittsburgh Corp., 80 LA 472, 476-77, Arbitrator Briggs summarized the principles that he believed explained these conflicting decisions. 9Apparently in reliance on the zipper clause -- that is, because of its belief that a contract can be silent on a subject while at the same time being violated in connection with that subject. -18- "normal" assumes that occasionally there will be abnormal circumstances warranting an abnormal workweek. In at least one instance, however, an arbitrator has ruled that while a normal-hours-of-work clause does not guarantee full-time work for any individual employee, it must be given some meaning for unit employees as a group, particularly where the contract also contains a maintenance-of-present-practices clause. International Harvester Co., 24 LA 311 (Cole 1955). In the case now before us, we are not faced with a shutdown of opera- tions, necessary or otherwise. Moreover, section 9 of Article 27, Pro- tection of Conditions, is not a general "boilerplate" provision that must or should be ignored in favor of more specific language elsewhere in the contract -- it is directed toward three very specific aspects of the contract: wages, hours of work, and overtime differentials. Testimony by the Department itself showed that with respect to hours of work, as spelled out in the various provisions of Article 10, "standards in effect at the time of the signing of this Agreement" did not include a systematic, across-the-board reduction in time worked through the use of furloughs days. Where another provision of the Agreement so specifically limits the rights of the employer with respect to employees as a group, section 6 of Article 10 must be construed to mean that full-time work in not guaranteed to any individual employee. It cannot reasonably be construed to affir- matively permit the employer to cut everyone's hours in lieu of seniority- based layoffs. The contract must be read as a whole -- it must be interpreted to give meaning to all of its provisions. F. and E.A. Elkouri, How Arbitration Works, at 352-353 (4th ed. 1985). Our interpretation is appropriate for three additional reasons. First, it is consistent with the fact that the Agreement covers full-time, and only full-time, employees of the Department. (This is specified in Article 1, Recognition, and references to full-time employees appear in various other provisions throughout the contract.) Systematically reducing days worked for all unit employees, not for reasons of temporary business necessity but in order to spread the pain of budget problems of indeter- minate length, appears to us to contradict the spirit, if not the letter, of the concept of full-time. How many furlough days are permissible? The six already ordered? One per week? Two or three per week? Could the employer use section 6 of Article 10 to reduce everyone to part-time status -19- and dissolve the unit? Second, the Department was not without options. In its brief the Department stated that indefinite layoffs would directly impair its ability to operate. However, no substantiating testimony on this point was pro- vided. In any case, the Department has not asserted the "business necessity" defense, a defense that in certain very limited circumstances not present here, makes an otherwise unlawful act lawful. Rather, the Department denies that it acted unlawfully. Third, although we do not agree with the Teamsters that the rates of pay were changed (and therefore that the wage provisions of the Agreement were violated)10, we wish to point out, on grounds of equity and the par- ties' intent, the substantial difference we see between seniority-based layoffs, where the remaining (more senior) employees receive larger paychecks that reflect the negotiated 3 1/2 percent raise, and furlough days for all employees, which in effect nullify the raise. We of course hasten to add that in the absence of a contract violation, we would have no choice but to dismiss the Teamsters' charge of unlawful unilateral change, equitable considerations notwithstanding. Finally, it is not clear to us why the Department did not pursue the Teamsters' offer to bargain over a solution to the Department's budget problems. Although the union was not required to offer to bargain any changes in the contract, or to accede to any changes if bargaining had occurred, it made known its willingness to discuss the problem. It is unfortunate that the Department refused this offer, since had it done so, a solution may well have been found that was satisfactory to both parties. In order to effectuate the policies of the MPELRL, we will order the Department to cease and desist from making unlawful unilateral changes in ________________________ 10Appendix C of the Agreement provides for a 3 1/2 percent increase in hourly rates, not a 3 1/2 percent increase in weekly or total salary. By reducing the number of days worked for each unit employee, the employer is paying the increased hourly rate without spending more money. -20- violation of sections 964(1)(A) and (E) of the MPELRL,11 and more specifi- cally, from further implementing the furlough day plan for unit employees, to the extent any furlough days have not yet been taken by members of the unit. In addition, in order to restore the situation, as nearly as possible, that which would have obtained but for the commission of the pro- hibited practice, we will order the employer to reimburse unit employees for furlough days already taken. Payment shall be made within 30 days of the day of this Order. Interest shall be computed in the manner described in Council 74, AFSCME v. City of Bangor, No. 80-41, 2 NPER 20-11042 (Sept. 24, 1980), modified in part, No. CV-80-574 (Me. Super Ct., Pen. Cty., Aug. 31, 1981), Board order aff'd, 449 A.2d 1129 (Me. 1982). We will also order the Department to sign, date and post, within 10 calendar days of the date of issuance of this decision and order, copies of the attached "Notice." Direct dealing The second charge by the Teamsters is that in implementing the furlough day program, the Department engaged in direct dealing with unit employees, in violation of section 964(1)(A) of the MPELRL. More specifically, the Teamsters allege that the Department's December 1991 letter to the union and its January 1992 memo and questionnaire to unit employees interfered with, restrained and coerced employees in the exercise of their section 963 rights.12 The Department replies first that the documents do not constitute ______________________ 11In its reply brief, the Department suggests that the Teamsters' section 964(1(A) charge should be dismissed, because it failed to address that charge in its brief. We disagree. The Teamsters' brief contains several pages of argument on its unilateral change charge. It is not uncommon for charging parties to allege both (1)(A) and (1)(E) violations in connection with an unlawful unilateral change, and the Teamsters did so in its complaint. The board has a history of finding that unilateral changes in terms and conditions of employment constitute interference, restraint and coercion, independent of a violation of the duty to bargain. This is because unlawful unilateral action inherently interferes with the free exercise of the right of employees to engage in bargaining. Coulombe v. City of South Portland, No. 86-11, slip op. at 25, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986); MSEA v. State, No. 84-19, slip op. at 10, 7 NPER 20-15019 (July 13, 1984) (both cases citing Lane, 447 A.2d at 810). 12In its brief, the Department argues at length that the sheriff's December 6, 1991, memo directed to employees is not direct dealing. We do not read the Teamsters' complaint to include an allegation regarding that document. Accordingly, it need not be addressed. -21- direct dealing, and second (in its reply brief), that the union waived its rights in connection with this charge because it failed to address the charge in its post-hearing brief. We will address the second argument first. Although the unilateral change charge and not the direct dealing charge is the main focus of the Teamsters' brief, it does reiterate the fact that a communication was sent directly to employees. In addition, the parties stipulated to the admission of the documents that are alleged to constitute direct dealing. The Board will dismiss allegations where they are neither supported in the record nor argued in posthearing briefs. Council 74, AFSCME v. City of Westbrook, No. 81-53, 4 NPER 20-12033 (Me.L.R.B. Aug. 6, 1981); Teamsters Local 48 v. City of Auburn, No. 79-41, 1 NPER 20-10028 (Me.L.R.B. Oct. 4, 1979). That is not the case here. Accordingly we decline to dismiss the charge on the basis of waiver. As we have stated on previous occasions, there is no blanket prohibi- tion against direct communications between employers and employees. "It is, of course, a venerable principle of labor law that "an employer acts in bad faith and violates the Act by dealing directly with its employees con- cerning their working conditions at a time when they are represented by an exclusive bargaining representative.'" MSEA v. Bangor Mental Health Institute, No. 84-01, slip op. at 6, 6 NPER 20-15004, (Me.L.R.B. Dec. 5, 1983), citing Farm Crest Bakeries, 241 N.L.R.B. 1191, 1196-97 (1979). "The injury suffered by the bargaining agent when the employer deals directly with represented employees is 'not that flowing from a breach of contract [but] to the union's status as a bargaining representative.'" Id. at 7, citing C & C Plywood Corp., 163 N.L.R.B. 1022, 1024 (1967), enforced, 413 F.2d 112 (9th Cir. 1969). We will address the Department's December 1991 letter briefly. It states that "[i]t is the intent of the County to schedule the furlough days if possible, by mutual agreement between the respective Department Heads and their employees." Although the letter reflects the Depart- ment's intent to communicate with employees directly, it is addressed to and was sent to the union, not to employees. Consequently, this letter itself cannot constitute direct dealing. The January 1992 memo and accompanying questionnaire are a different matter. These documents, given directly to unit employees without the -22- consent of the Teamsters, both make it clear that the Department and indi- vidual employees will together work out when furlough days are to be taken. The cover memo included the following statements: In order to provide for a uniform flow of furlough days taken, a policy has been drafted which will be posted for your review. We will try to stay within the confines of this policy. Our intention is to provide the schedule of furlough days when preferred by each employee if possible. Per policy, we will try to cause the assignment of the first furlough day(s) before the end of February. If someone wants to take more than one, an effort will be made to provide for the assignment of such when scheduling will permit. Please fill out the attached form and submit to your immediate supervisor for review and any further input. Even if you do not wish to discuss furlough or do not have a preferred time for furlough, please send the form through proper channels so that we will have confirmation that you do not have a preferred time to be assigned. The supervisor will forward your request form with the added notes to the Division Leader (by January 30 for the first timeframe) so that efforts can be made to schedule appropriately. The attached questionnaire laid out the alternatives from which employees could choose, from no preference for furlough dates to indicating specific, preferred dates. The Department argues that since it is entitled under Article 10 of the contract to unilaterally schedule the work, it was by definition not "end-running" the union by allowing employees to indicate their preference for scheduling furlough days. Furthermore, says the Department, the Teamsters did not object to mutually agreeable scheduling or propose a dif- ferent scheduling method. Finally, according to the Department, the memo contains no fatal inaccuracies, does not intimidate or contain any threat or promise, and does not put the burden to work out the furlough schedule on the employees themselves. While we agree with the Department regarding inaccuracies, threats and promises, and no burden on employees, we disagree with its remaining argu- ments. In connection with the union's alleged failure to object, the par- ties stipulated that furloughs were implemented over the objection of the union. More specifically, The Department notified the Teamsters by letter of its decision to furlough employees, also stating its intention regarding -23- scheduling. The Teamsters objected to the whole furlough program; the record shows that the union's objections were forceful and made on more than one occasion. The burden was then on the Department to request that the union agree to some form of employee input without waiving its right to object to the whole furlough program in the first instance. If asked, the union could have agreed to put a statement to that effect in the memo and/or questionnaire without appearing, in the minds of unit members, to be conceding the legality of the furloughs. Nor is the Article 10 argument persuasive. Section 7 of Article 10 states that "[w]ork schedules will be established to meet the demands of coverage for the Department." Therefore, had ordering furlough days them- selves been lawful, the Department would indeed have had the unilateral right to schedule those days. However, section 7 says nothing about schedules being established in consultation or through bargaining with employees. A recent National Labor Relations Board (NLRB) case is instructive. In Allied Signal, Inc., 140 LRRM 1121 (May 29, 1992), the employer had unilaterally changed its smoking policy to prohibit smoking throughout its facility. Prior to implementation, without the approval of the employees' bargaining agent, the employer solicited employee input on how far the ban should go and what the penalties for violating the ban should be. The NLRB found that in the parties' contract, the union had given the employer the right to change its smoking policy, but had not, in so doing, also given the employer the right to deal with employees as if they had no bargaining agent. As the Board stated, direct dealing "need not take the form of actual bargaining . . . . the question is whether an employer's direct solicitation of employee sentiment over working conditions is likely to erode 'the Union's position as exclusive representative.'" (Citation omitted.) In the case now before us, we are confronted with a situation that is arguably more likely to erode the union's position. Although this was not the Department's intention, employees first learned about the furlough decision through the newspapers. The union, once contacted directly, objected strenuously to the furlough program and had offered to bargain over the issue, to no avail. Unit employees then received the memo and -24- questionnaire soliciting their input on when furlough days would be taken, totally bypassing the bargaining agent. There is no doubt in our minds that receipt of those documents had to have further undermined the union's position in the minds of unit members. As we said earlier, a statement in the documents to the effect that the union was agreeing to the question- naire without agreeing to the legality of the furloughs would have pre- served everyone's rights as well as the union's status in the eyes of the employees it represents. In order to effectuate the policies of the MPELRL, we will order the Department to cease and desist from engaging in direct dealing with unit employees in violation of section 964(1)(A) of the MPELRL. We will also order the Department to sign, date and post the attached "Notice" within ten calendar days of the date of issuance of this decision and order. ORDER On the basis of the foregoing stipulations, 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) (1988 and Supp. 1991), it is hereby ORDERED: 1. That the Respondent Aroostook County Sheriff's Department and its representatives and agents shall: a. Cease and desist from failing to bargain and from interfering, restraining and coercing employees in the exercise of bargaining rights by making unlawful unilateral changes in the mandatory subject of hours of work for employees in the bargaining unit of full- time sergeants, officers/dispatchers, head cook and cooks. b. Cease and desist from further implementing the Department's furlough plan with respect to members of said unit. c. Cease and desist from engaging in direct dealing with members of said unit regarding the mandatory subject of scheduling of work. d. Take the following affirmative actions that are necessary to effectuate the policies of the MPELRL: i. Reimburse employees of said unit for wages lost as a result of implementation of the Department's -25- furlough plan. Payment shall be made with in 30 days of the date of issuance of this decision and order. ii. Sign, date and post, within 10 calendar days of the date of issuance of this decision and order, at all locations where notices to members of said unit are customarily posted, and at times when such employees customarily perform work at those places, copies of the attached "Notice." The Notice shall remain posted for two weeks. iii. Take such reasonable steps as may be necessary to ensure that said posted notices are not altered, defaced, or covered while they are posted pursuant to this Order. 2. That the Department's request for reasonable costs and attorneys' fees is denied. Dated at Augusta, Maine, this 5th day of November, 1992. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1991), to seek review of this decision /s/_________________________ and order by the Superior Court. Peter T. Dawson To initiate such a review an Chair appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision /s/_________________________ and order, and otherwise comply George W. Lambertson with the requirements of Rule 80C Employee Representative of the Maine Rules of Civil Procedure. Alternate Employer Representative Jim A. McGregor filed a separate opinion, dissenting. OPINION I agree with my colleagues that the Department's right, in the manage- ment rights clause of the Agreement, "to schedule the work" is not an affirmative grant of the authority to systematically furlough all unit mem- bers for budgetary reasons. I would find that as a general matter, fur- loughs are layoffs, albeit of a fixed, rather than indefinite, duration. In my view, however, tne term "reduction in force" refers not to temporary layoffs but to layoffs of indefinite length that sever the employment rela- tionship. Since the layoff provision of the Agreement (section 4 of -26- Article 7) requires seniority to be utilized for layoffs that constitute a reduction in force, but is silent with respect to temporary layoffs, I would make an affirmative finding that Article 7 has not been violated. I do not agree with my colleagues that section 6 of Article 10 and sec- tion 9 of Article 27/13 must be harmonized. I would simply acknowledge the contradiction between these two sections, rather than imputing a meaning to section 6 other than what appears on its face. Where the contract is so poorly drafted,14 and that poor drafting is the fault of both parties to the contract, I would refuse to find a contract violation (and therefore a violation of the MPELRL). The Teamsters' charge of unlawful unilateral change should be dismissed. I would also dismiss the direct dealing charge. I do not believe the Department should be prevented from communicating directly with its employees, even regarding mandatory subjects of bargaining, where its actions were so clearly meant to benefit employees themselves (by giving them some say in when the furlough days would be taken). Dated at Augusta, Maine, this 5th day of November, 1992. MAINE LABOR RELATIONS BOARD /s/_________________________ Jim A. McGregor Alternate Employer Representative _________________________ 13Section 6 of Article 10 states that "[n]othing herein [in Article 10, HOURS OF WORK] contained shall in any way be construed as a guarantee of full-time employment." Section 9 of Article 27 states: Section 9 - Protection of Conditions - The Department agrees that all conditions of employment relating to wages, hours of work, and overtime differentials shall be maintained at not less than the highest standards in effect at the time of the signing of this Agreement; and such conditions of employ- ment shall be improved wherever specific provisions for improvement are made elsewhere in this Agreement. 14The contradiction at issue here is not the only one contained in the Agreement. Article 4, MANAGEMENT RIGHTS, begins as follows: "Except as specifically modified by the provisions of this Agreement, Management reserves the right . . . . " The very end of the same provision states: " . . . and no provision herein is intended to imply or permit a modifi- cation of any of these Management Rights." Fortunately, these aspects of Article 4 are not relevant to the dispute before us. -27- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE _____________________________________________________________________________ NOTICE TO ALL EMPLOYEES IN BARGAINING UNIT OF FULL-TIME SERGEANTS, OFFICERS/DISPATCHERS, HEAD COOK AND COOKS REPRESENTED BY TEAMSTERS UNION LOCAL 340 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 LAW you are hereby notified that: 1. The Department will cease and desist from further imple- menting its furlough plan with respect to employees in the above mentioned unit. 2. The Department will reimburse employees in the unit for wages lost in connection with furlough days already taken. Payment shall be made within 30 days of the date of issuance of the Board's decision and order. 3. The Department will cease and desist from engaging in direct dealing with employees in the unit regarding the mandatory subject of scheduling of work. Dated: AROOSTOOK COUNTY SHERIFF'S DEPARTMENT _____________________________________ Roland D. Martin County Administrator If employees have questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333. Telephone 287-2015.