STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 05-02
Issued: February 16, 2005
____________________________________
)
GRANITE CITY EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF HALLOWELL, )
)
Respondent. )
____________________________________)
This is a prohibited practice case, filed pursuant to 26
M.R.S.A. 968(5)(B) on June 24, 2004, by the Granite City
Employees Association ("Association" or "Complainant") alleging
that the City of Hallowell ("City" or "Respondent") violated 26
M.R.S.A. 964(1)(A), (C), (E), and 965(1)(A) and (C) by
offering a conditional employment agreement to a bargaining unit
member without notifying the Association or negotiating over the
terms of the agreement, by unilaterally changing working
conditions and refusing to negotiate those changes, and by
unilaterally imposing terms and conditions of employment that
alter previously negotiated wages and seniority provisions of the
collective bargaining agreement. The City filed a timely
response on July 12, 2004, denying that its actions constituted a
violation of the Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A. ch. 9-A.
A prehearing conference in the case was held on August 23,
2004, with Alternate Neutral Chair Jared S. des Rosiers, Esq.,
presiding. On September 9, 2004, Chair des Rosiers issued a
Prehearing Conference Memorandum and Order, the contents of which
are incorporated herein by reference. In the Prehearing Order,
four issues of fact and law were identified in the matter.
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In written resolutions signed on September 30 and October 26,
2004, the parties agreed to settle issues one, two, and three as
identified in the Prehearing Order. The fourth and final issue
still to be determined after hearing by the Maine Labor Relations
Board ("Board") was as follows:
Did the Respondent violate 26 M.R.S.A. 964(1)(A), (C)
and/or (E) and/or 965(1)(A) and/or (C) by unilater-
ally imposing terms and conditions of employment that
alter previously negotiated wages and seniority
provisions for certain police officer members of the
bargaining unit?
A hearing on this remaining matter was held on October 26,
2004, Alternate Chair des Rosiers presiding, with Alternate
Employer Representative Richard L. Hornbeck, Esq., and Alternate
Employee Representative Wayne W. Whitney, Esq. The Complainant
was represented by Richard D. Mersereau, Association Representa-
tive; and the City was represented by Thomas B. Federle, Esq.
The Complainant presented as its sole witness Patrol Officer
Ronald Grotton. The City presented no witnesses. The Board
accorded the parties a full opportunity to examine and cross-
examine the witness and to introduce evidence. The parties
submitted written argument to the Board following the hearing,
with briefing completed on November 12, 2004. The Board met to
deliberate the case on December 17, 2004.
JURISDICTION
The Association is the bargaining agent, within the meaning
of 26 M.R.S.A. 962(2), of the employees holding the following
positions in the City of Hallowell: Deputy City Clerk, Code
Enforcement Officer, Janitor, Deputy Chief of Police, Patrol
Officers, Highway Foreman, Equipment Operators, Truck Drivers and
Laborers. The City is the public employer, within the meaning of
26 M.R.S.A. 962(7). The jurisdiction of the Board to hear this
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case and to render a decision and order lies in 26 M.R.S.A.
968(5). All subsequent statutory references are to the MPELRL,
Title 26, M.R.S.A.
STIPULATIONS
The parties stipulated to the following:
1. The MLRB has jurisdiction to hear and render decisions
pursuant to 26 M.R.S.A. Sec. 968(5) in this case.
2. The GCEA is a certified bargaining agent and an unincor-
porated labor organization composed of Hallowell city
employees pursuant to 01-UD-04, May 23, 2001.
3. The collective bargaining agreement hereinafter "Agreement
1" signed February 20, 2002, was in effect from July 1,
2001, to June 30, 2004.
4. The collective bargaining agreement hereinafter "Agreement
2" signed January 12, 2004, is in effect from July 1, 2004,
to June 30, 2007.
5. On May 20, 2004, [the Association Representative] notified
by regular and electronic mail the City Council Chair of the
Personnel Committee of its concern that the City was
planning to eliminate a unit position in the Police
Department and that the Association was notifying the City
of its intent to meet and negotiate over the impact of the
position elimination, namely, the Deputy Chief of Police.
6. On June 8, 2004, the Personnel Chair notified the
Association of her willingness to meet regarding the
position elimination and a meeting was scheduled for
June 16, 2004, for 10:00 a.m. at City Hall.
7. On June 16, 2004 the Personnel Committee Chair Cynthia
Murray-Beliveau, Officer Ron Grotton and Richard Mersereau,
Association Representative met at 10:00 a.m. regarding the
position elimination and the City Manager's actions
regarding wage assignments and status changes of two (2)
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Police Officers.
8. At the June 16, 2004 meeting the Association raised its
concern regarding the impact of the position elimination on
the other members of the unit because there were many duties
that are performed by the Deputy Chief that directly support
operations of the department on a day to day basis. The
Deputy Chief job description was presented and essential
duties were cited with a reminder that they are all unit
working conditions. The city representative indicated she
would get back to the Association on this matter.
FINDINGS OF FACT
1. The Hallowell City Employees bargaining unit was created as
the result of unit determination hearing, No. 01-UD-04 (MLRB
May 23, 2001). The unit consists of all employees in the
following positions: Deputy City Clerk, Code Enforcement
Officer, Janitor, Deputy Chief of Police, Patrol[fn]1 Officers,
Highway Foreman, Equipment Operators, Truck Drivers and
Laborers. The Association was certified after bargaining
agent election conducted on July 16, 2001.
2. The City and the Association have negotiated an initial
collective bargaining agreement ("CBA")(effective July 1,
2001, to June 30, 2004) and one successor collective
bargaining agreement (effective July 1, 2004, to June 30,
2007). The successor CBA was signed by both parties on
January 12, 2004.
3. In April, 2004, the City began finalizing a municipal budget
which would, in part, eliminate the Deputy Police Chief
position, effective July 1, 2004. At that time, the
Hallowell Police Department consisted of a Police Chief, a
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1 The collective bargaining agreements describe the position both
as "police officers" and "patrol officers." We will use the term
"patrol officers" in this decision.
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Deputy Police Chief, and three full-time Patrol Officers.
4. Both the first and the second CBA's provided for separate
pay ranges for the Deputy Police Chief and the three patrol
officers, described as "Patrol Officer 1," "Patrol Officer
2," and "Patrol Officer 3." In both CBA's, the Deputy
Police Chief is the highest paid unit position in the
department, the Patrol Officer 1 is the second highest paid
unit position, the Patrol Officer 2 is the third highest
paid unit position, and the Patrol Officer 3 is the lowest
paid unit position.
5. Neither CBA defines the qualifications required to hold the
position of Patrol Officer 1, 2 or 3. In practice, the
position of Patrol Officer 3 has been filled with an
employee who has not yet completed the required course of
study at the Maine Criminal Justice Academy. The position
of Patrol Officer 2 has been filled with an employee who has
completed this required course. The position of Patrol
Officer 3 has been filled with an employee who has completed
this required course, and who has been employed by the City
for some length of time.
6. The municipal budget for July 1, 2004 - June 30, 2005, which
eliminated the position of Deputy Police Chief, had its
first reading on April 12, 2004, its second reading on
May 10, 2004, and its third and final reading on June 7,
2004.
7. By letter dated May 20, 2004, the Association Representative
requested a meeting within ten days with the City's chief
negotiator to negotiate the impact of the proposed position
elimination upon the unit and its members. The Association
Representative also sent the City's chief negotiator an e-
mail message on the same date requesting impact bargaining.
8. In early June, the Association Representative and the City's
chief negotiator exchanged a series of e-mails attempting to
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set a mutually agreeable time to meet. They eventually
agreed to meet on June 16, 2004.
9. On June 9, 2004, Eric Nason (the employee holding the Deputy
Police Chief position) was advised in writing that his
position was being eliminated effective July 1, 2004, and
that he had the right to "bump into Officer Grotton's budget
position 30-35-22 Patrol Officer 1" or, if he chose not to
bump into this position, his last date of employment would
be June 30, 2004. Mr. Nason was also advised that his "save
pay," if he chose to bump into Mr. Grotton's position, would
be $34,570 annually. Mr. Nason advised the City in writing
that he would exercise his right to bump.
10. On June 11, 2004, Ronald Grotton, the employee holding the
Patrol Officer 1 position, was advised in writing that he
had the right to "bump into Officer Madore's budget position
30-35-23 Patrol Officer 2," which position was soon to be
vacant as Mr. Madore had submitted a resignation to the City
effective June 24, 2004. Mr. Grotton was advised that if
he chose not to bump into the Patrol Officer 2 position,
then his last date of employment would be June 30, 2004.
Mr. Grotton was also advised that his "save pay," if he
chose to bump into Mr. Madore's position, would be $27,519
annually.
11. Copies of these letters sent to Mr. Nason and to Mr. Grotton
were simultaneously sent to the Association Representative.
12. By letter dated June 17, 2004, Mr. Grotton advised the City
that he wished to continue employment with the City.
13. By letter dated June 18, 2004, City Manager James Rhodes
advised Mr. Grotton that in order to continue employment,
Mr. Grotton was required to advise the City that he was
bumping into budget position 30-35-23 Patrol Officer 2.
Mr. Grotton responded in writing that he understood the
requirement, and that he was bumping into that position.
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14. The Association Representative, the City's chief negotiator,
and Mr. Grotton met on June 16, 2004, to discuss the impact
of the elimination of the Deputy Police Chief position.
At that point, both Mr. Nason and Mr. Grotton had received
letters advising them of the position elimination and their
opportunity to "bump" into the Patrol Officer 1 and Patrol
Officer 2 positions, respectively. At the meeting, the
Association Representative and Mr. Grotton sought to
negotiate about two aspects of the elimination of the Deputy
Police Chief position. First, they discussed the duties of
the Deputy Police Chief, how these duties would be fulfilled
after the position was eliminated, and whether this would
impact the remaining police officers in the department.
Second, they discussed the impact of the letters sent to
Mr. Nason and Mr. Grotton, and whether the CBA dictated that
Mr. Grotton bump into the Patrol Officer 2 position.
The City's chief negotiator advised the Association Repre-
sentative and Mr. Grotton that she would get back to them
about the issues. No agreements were reached as the result
of this meeting.
15. On June 24, 2004, the Association filed the present
Prohibited Practice Complaint.
16. On June 25, 2004, the City's chief negotiator e-mailed the
Association Representative and advised him that the City
Manager had received the letter from Mr. Grotton stating
that Mr. Grotton intended to use his bumping privileges
under the CBA. She further stated that "[w]e do not believe
it would be appropriate to re-negotiate the employees
contract at this time."
17. Following this June 25 e-mail, the Association and the City
did not have further meetings to negotiate the impact of the
elimination of the Deputy Police Chief position.
18. The salary of the Patrol Officer 1 was $13.23 per hour,
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effective July 1, 2003, and was $13.56 per hour, effective
July 1, 2004. The salary of the Patrol Officer 2 was $12.33
per hour, effective July 1, 2003, and was $12.64 per hour,
effective July 1, 2004. Because Mr. Grotton was forced to
bump into the Patrol Officer 2 position (or be laid off) his
salary was effectively frozen at the July 1, 2003 level of
$13.23 per hour. If he continues in the Patrol Officer 2
position, he will not be given a salary increase until
July 1, 2006, when the salary of the Patrol Officer 2
position is scheduled to increase to $13.60, which is in
excess of his current salary.
DECISION
The statutory duty to bargain embodied in 965(1) requires
that the employer and the bargaining agent negotiate in good
faith with respect to the mandatory subjects of bargaining--
wages, hours, working conditions and contract grievance
arbitration. The duty to bargain continues throughout the life
of the collective bargaining relationship between the employer
and the bargaining agent, provided that the parties have not
otherwise agreed in a prior written contract. Council 74, AFSCME
v. Ellsworth School Committee, No. 81-41, at 7 (MLRB July 23,
1981). Where, as here, a collective bargaining agreement is in
effect between the parties, the obligation to bargain continues
in the following circumstances:
If, as in the instant case, there is a collective
bargaining agreement in effect which does not contain a
so-called "zipper clause," the obligation to bargain
continues with respect to new issues which arise during
the course of the administration of the collective
bargaining agreement when those new issues are neither
contained in the terms of the contract nor negotiated
away during bargaining for that contract or a successor
agreement.
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East Millinocket Teachers Ass'n v. East Millinocket School
Committee, No. 79-24, at 4-5 (MLRB Apr. 9, 1979).[fn]2
Finally, and particularly important to the present matter,
the parties are obligated to negotiate about the effects or
"impact" of a management decision on the terms and conditions of
employment, even when there is no obligation to negotiate about
the decision itself. See, e.g., City of Bangor v. AFSCME,
Council 74, 449 A.2d 1129 (Me. 1982) (even though the union
waived the right to negotiate over discharges and changes in the
size of the employee group, the employer was still obligated to
bargain about the impact of the discharges); State of Maine
(Bureau of Alcoholic Beverages) v. Maine Labor Relations Board,
413 A.2d 510 (Me. 1980) (state was required to negotiate the
impact of the opening of liquor stores on holidays upon the
employees' wages, hours, and working conditions).
A corollary to the duty to bargain is the well-established
prohibition against public employers making unilateral changes in
the mandatory subjects of bargaining. See, e.g., State of Maine
(Bur. of Alcoh. Bev.) v. MLRB, supra, at 515; NLRB v. Katz, 369
U.S. 736, 743 (1962). "The essence of this prohibition is that
once a bargaining agent has begun to represent a unit of
employees, the employer may not make unilateral changes in
mandatory subjects of bargaining without negotiating the changes
with the bargaining agent." Teamsters Local 48 v. Town of Jay,
No. 80-02, slip op. at 3 (MLRB Dec. 26, 1979). The rationale for
the prohibition is that unilateral changes in mandatory subjects
"is a circumvention of the duty to negotiate which frustrates the
objectives of the duty much as does a flat refusal to bargain."
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2 If the parties wish to foreclose the possibility of "mid-term
bargaining," the agreement must contain a comprehensive waiver of the
duty to bargain, either in a conclusion of negotiations article or
zipper clause. The CBA of the parties here contains no such waiver
and the City has not argued that mid-term bargaining was foreclosed on
this basis.
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NLRB v. Katz, 369 U.S. at 743.
The facts of the present matter are fairly simple and, for
the most part, uncontested. The City decided through its annual
budget process to eliminate one of the bargaining unit positions,
the Deputy Police Chief. The Union sought to negotiate about the
impact of the decision to eliminate the position, making a
written request on May 20, 2004, to engage in impact bargaining.
Although the meeting to negotiate did not occur until June 16,
2004, this was apparently with the agreement of the Union, and
the Union has not charged a violation of the per se requirement
to meet within ten days, as provided in 965(1)(B). Prior to
the meeting, the City sent letters first to the Deputy Police
Chief and then to the Patrol Officer 1, advising both of these
employees that the Deputy Police Chief was being eliminated and
advising both that they had the right to "bump" into a lower-paid
bargaining unit position or, if they chose not to bump, that
their employment would be terminated effective June 30, 2004.
At the June 16, 2004, meeting, the Union raised two issues
relating to the impact of the position elimination: how the
duties of the eliminated position would be distributed and
performed, and whether the employee holding the Patrol Officer 1
position was also to be affected by the elimination of the Deputy
Police Chief position--by being required to bump to a lower
position, receiving lower pay, etc. The City's chief negotiator
advised the Association Representative that she would get back to
him on these issues following the meeting. Several days later,
the chief negotiator advised the Union that the City was
unwilling to "re-negotiate the employees contract."
Since the parties have since settled the first impact issue
raised during the meeting (the distribution and performance of
the Deputy Police Chief's duties), the issue that remains is
whether the City was obligated to negotiate about the impact of
the position elimination on the employee holding the Patrol
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Officer 1 position. The City here argues that it did not commit
a unilateral change without negotiation because the CBA provided
for the consequences of a reduction in force and the City
complied with the CBA.[fn]3 The City further argues that it did not
refuse to negotiate about the impact of the position elimination,
only that it refused to accept the Union's position as to the
meaning and application of the CBA.
The Board has no jurisdiction to consider contract
grievances. Yet, in cases such as this, where the employer has
allegedly violated the duty to bargain, the Board must interpret
the applicable CBA in determining whether there was a refusal to
bargain or whether the implemented change was permitted by the
agreement. See Paul Coulombe and South Portland Professional
Firefighters v. City of South Portland, No. 86-11, at 8-9 (MLRB
Dec. 29, 1986); MSEA and State of Maine, No. 82-05, at 6 (MLRB
Dec. 22, 1982), rev'd on other grounds, 499 A.2d 1228, 1230 (Me.
1985) ("Our review of the agreements will not be to determine
whether the State complied therewith but rather to determine
whether or not the parties' agreements control the changes which
have been implemented"). The article most relevant to the
present matter is the article on seniority which, in the parties'
successor CBA, provides as follows:
ARTICLE 24 SENIORITY
A. Seniority lists shall be maintained by the City.
Seniority shall be based upon the length of continuous
employment from the date of last hire.
B. In the event it becomes necessary for the City to
reduce the workforce, employees will be laid off
according to seniority within their respective
departments. The layoffs will be in the inverse
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3 The parties appeared to agree that the successor CBA--signed
January 12, 2004, and effective July 1, 2004--was the controlling
agreement in these events. The key article here pertaining to
seniority was identical in the initial and the successor CBA.
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order of seniority meaning beginning with the least
senior employee and moving towards the most senior
in that order. All affected employees shall have
not less than two (2) weeks advance notice of a
layoff.
Employees so affected shall be recalled from lay-
off according to their seniority to any position
for which the employee is qualified. Recall rights
shall be in effect for a period of twelve (12)
months from the date of layoff.
C. Any affected employee(s) by reduction in force or
position elimination who remains with the City shall
retain their current wage (the wage immediately prior
to the event) until such time as the "new" wage
assignment is equal to or surpasses the wage of their
former classification.
D. Unit members shall accrue seniority when any of the
following occur:
1) Layoff due to reduction in force and other
dislocations, and;
2) Any authorized paid or unpaid leave.
This article provides that in the event of a reduction in
force, employees will be laid off according to seniority within
departments. In passing the 2004 police department budget, the
City effected a reduction-in-force of the department, but it was
not based upon seniority. Rather, the City identified a
particular position to eliminate (the Deputy Police Chief
position), a position held by a single employee. No evidence
was presented by the parties here about the respective seniority
of any of the police department employees. The employee holding
the Deputy Police Chief position (Mr. Nason) may have been the
most senior unit employee in the department, but the City opted
to eliminate a position rather than to lay off the least senior
employee. While it was the employer's right to eliminate a
position, the CBA does not fully address the process to be
followed when the City eliminates a position rather than lays off
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an employee based upon their seniority.
Without negotiating about the impact of the position
elimination, the City began a bumping process - first offering
Mr. Nason the option of bumping into the Patrol Officer 1
position or being laid off, then offering Mr. Grotton the option
of bumping into the Patrol Officer 2 position or being laid off,
and so on.[fn]4 The bumping system that the City created appeared to
be based on the relative wages of the positions in the police
department (from the highest paid to the lowest paid), not on the
seniority of the employees involved. The CBA seniority article
does not describe a bumping procedure from position to position
at all. The City relies on the language of Article 24, Sec. C
as the basis for the bumping system it created. However, this
section merely states that any employee affected by position
elimination who remains with the City will retain their current
wage until such time as the "new" wage assignment is equal to or
surpasses their former classification. This section contemplates
circumstances in which an employee's position is eliminated but
the employee remains employed in a lower-paying position, but the
section does not clarify the manner in which the affected
employee comes to remain in employment in a lower-paying
position. This might occur, for example, if another lower-paying
position was simply open and available at the time of the
position elimination.
In summary, the Board finds that the Seniority Article does
not unambiguously create a bumping system, from position to
position, that was to be automatically instituted upon the
elimination of a position. The procedure to be followed when a
position was eliminated was not "contained in the terms of the
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4 The letter to Mr. Grotton (Exh. C-16) suggested that the
bumping of employees within the department would have continued to
occur down through the entire department, except for the fact that the
Patrol Officer 2 had elected to resign from his position.
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contract," thus the City was obligated to bargain about the
impact of the position elimination. Here, the Association
particularly complains of the impact on Mr. Grotton who, while
his position was not eliminated, was forced to bump into the
lower-paying job class of Patrol Officer 2 or be laid off.
While he retained his previous Patrol Officer 1 salary from the
2003 level, he did not receive the negotiated increase for this
position on July 1, 2004, and he will not receive an additional
wage increase until July 1, 2006, when the Patrol Officer 2
salary first surpasses his present salary. Aside from any other
arguable impact, the City's decision to eliminate the Deputy
Police Chief position, and then to implement a bumping system
affecting employees in addition to Mr. Nason, clearly impacted
the wages of Mr. Grotton. The final question remaining in this
matter is whether the City engaged in good faith bargaining about
this impact.
The City argued that its chief negotiator did "confer and
negotiate in good faith" about this impact, but simply refused to
adopt the Association's position on the meaning of the CBA
(Respondent's brief at 4). The standard we apply in evaluating
alleged violations of the duty to bargain in good faith is as
follows:
A bad faith bargaining charge requires that we examine
the totality of the charged party's conduct and decide
whether the party's actions during negotiations
indicate "a present intention to find a basis for
agreement." NLRB v. Montgomery Ward & Co., 133 F.2d
676, 686 (9th Cir. 1943); see also Caribou Schoo1
Department v. Caribou Teachers Association, 402 A.2d 1279,
1282-1283 (Me. 1979). Among the factors which we
typically look to in making our determination are
whether the charged party met and negotiated with the
other party at reasonable times, observed the ground-
rules, offered counter proposals, made compromises,
accepted the other party's positions, put tentative
agreements in writing, and participated in the dispute
resolution procedures. See, e.g., Fox Island Teachers
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Association v. MSAD #8 Board of Directors, MLRB No.
81-28 (April 22, 1981); Sanford Highway Unit v. Town of
Sanford, MLRB No. 79-50 (April 5, 1979). When a
party's conduct evinces a sincere desire to reach an
agreement, the party has not bargained in bad faith in
violation of 26 M.R.S.A. Sec. 964(1)(E) unless its
conduct fails to meet the minimum statutory obligations
or constitutes an outright refusal to bargain.
Kittery Employees Assoc. v. Strahl, No. 86-23, at 10-11 (Jan. 27,
1987), quoting Waterville Teachers Assoc. v. Waterville Board of
Education, No. 82-11, at 4 (Feb. 4, 1982). In this case, the
City and the Association met on a mutually-agreed-upon date, a
meeting which occurred before the scheduled date of the position
elimination (and its impact). The Association witness, who was
present at this meeting, testified that no "negotiation" occurred
at this meeting. He testified that the City's chief negotiator
noted the Association's concerns about the impact of the
position elimination, and advised that she would get back to them
about their concerns. Her response came several days later in
writing when she advised the Association that the City would not
"renegotiate the contract." The testimony of the Association
witness was not contradicted by the City.
The City did not offer counter proposals or suggest any
possible area of compromise here. The City, in fact, engaged in
no real negotiation at all. We understand the City's position in
this case: that there was "nothing to bargain about" because the
matter was covered by the CBA, and the actions of the City were
in keeping with the terms of the CBA. As we found above,
however, the CBA was ambiguous on the issue of bumping and the
impact of position elimination on employees who held positions
that were not being eliminated. In the face of this ambiguity,
the Association's position (articulated before the Board) was
that Mr. Nason should have been offered the Patrol Officer 1
position after his position was eliminated, but that Mr. Grotton
should have been allowed to retain his Patrol Officer 1 position
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as well. The City was not obligated to adopt the Association's
position, but the City was certainly obligated to negotiate in
good faith about the impact. Instead, the City presented a "take
it or leave it" attitude which was the antithesis of good faith
bargaining. As we recently suggested in another matter where the
employer made no real effort to bargain, "[b]argaining is more
than just stating one's position. It involves listening to the
concerns of the other side, and making an effort to resolve
differences." MSEA v. York County, No. 04-04, at 29 (MLRB
Oct. 8, 2004). The City's actions in this case did not satisfy
the employer's duty to bargain in good faith about the impact of
the position elimination and, in failing to bargain in good
faith, the City violated 26 M.R.S.A. 964(1)(E).
The Association also alleged that the City's conduct
violated 26 M.R.S.A. 964(1)(A) and 964(1)(C). We have held
that an employer violates 964(1)(A) if it engages in conduct
"which, it may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act." Teamsters Local
Union No. 48 v. Town of Oakland, No. 78-30, at 3 (MLRB Aug. 24,
1978). A public employer's unlawful changes in the mandatory
subjects of bargaining not only violate the statutory duty to
bargain, but also inherently tend to interfere with the
employees' exercise of the bargaining rights guaranteed by the
Act. Teamsters Local Union No. 48 v. Town of Jay, No. 80-08, at
4 (MLRB Jan. 9, 1980). We have found here that the City refused
to bargain in good faith; however, the City met with the
Association prior to eliminating the Deputy Police Chief
position, and based its position on at least a colorable reading
of the CBA. In these circumstances, we decline to find that the
City's conduct had the effect of restraining employees in the
exercise of their statutory rights, in violation of 964(1)(A).
Section 964(1)(C) is "directed at the evil of too much financial
or other support of, encouraging the formation of, or actually
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participating in the affairs of the union and thereby potentially
dominating it." Teamsters Local Union No. 48 v. Town of Fort
Fairfield, No. 86-01 (MLRB Jan. 24, 1986). There was no evidence
presented here that the employer violated this section of the
Act.
In conclusion, the Board finds that the employer violated 26
M.R.S.A. 964(1)(E) when it refused to bargain about the impact
of the elimination of Deputy Police Chief position, particularly
as it affected the wages, hours, and/or working conditions of an
employee (Mr. Grotton) whose position was not eliminated.
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 26 M.R.S.A. 968(5), it is
hereby ORDERED:
That the City of Hallowell and its representatives and
agents:
1. Cease and desist from refusing to bargain with the
Association over the impact of the elimination of the
Deputy Police Chief position on the terms and
conditions of employment of employees in the Police
Department; and
2. Take the following affirmative action designed to
effectuate the purposes of the Act by meeting with the
Association for the purposes of negotiating the impact
of the elimination of the Deputy Police Chief on the
terms and conditions of employment of employees in the
Police Department within ten days of receipt of this
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order. The parties may meet beyond the ten-day period if
mutually agreeable.
Dated at Augusta, Maine, this 16th day of February, 2005.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26
M.R.S.A. 968(5))(F) (Supp. /s/___________________________
2004) to seek a review of Jared S. des Rosiers
this decision and order by Alternate Chair
the Superior Court. To
initiate such a review, an
appealing party must file a
complaint with the Superior /s/___________________________
Court within fifteen (15) Richard L. Hornbeck
days of the date of issuance Alternate Employer
of this decision and order, Representative
and otherwise comply with the
requirements of Rule 80(C) of
the Rules of Civil Procedure.
/s/___________________________
Wayne W. Whitney
Alternate Employee
Representative
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