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STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 18-09
Issued: May 14, 2018

WISCASSET EDUCATIONAL SUPPORT
PROFESSIONALS ASSOCIATION,
Complainant,

v.

WISCASSET SCHOOL DEPARTMENT,
Respondent.

 

 

ORDER


 

On October 17, 2017, the Wiscasset Educational Support 
Professionals Association filed a prohibited practice complaint 
alleging that the Wiscasset School Department violated 26 M.R.S. 
964(1)(E) and (A) by making a unilateral change in a mandatory 
subject of bargaining.  Specifically, the complaint alleges a 
unilateral change in the practice of accruing and using compensatory 
time off in lieu of overtime pay.  
 
     A prehearing conference was held with Chair Katharine Rand on 
Thursday, January 18, 2018.  Representing the Complainant was Rose 
Mahoney, MEA UniServ Director.  Representing the Respondent were 
Thomas Trenholm, Esq., and Connor Schratz, Esq.  After reviewing the 
proceedings and discussing the matter with the parties, the 
prehearing officer concluded that the resolution of certain legal 
issues could result in the complete resolution of the complaint.
 
     The Prehearing Order issued on January 25, 2018, by Chair Rand, 
directed the parties to brief these legal issues pursuant to MLRB 


[end of page 1]


Rules, Ch. 12 10(7).  Specifically, the parties were ordered to 
submit written briefs addressing the following legal questions/ 
issues:

     1.) Under what circumstances, if any, may an employer 
     provide employees with compensatory time off in lieu of 
     overtime pay, consistent with the Federal Fair Labor 
     Standards Act (FLSA)?  If employers may provide 
     compensatory time off in lieu of overtime pay pursuant to 
     an agreement with employees, please address the 
     requirements of such an agreement, including whether the 
     agreement must be written and the necessary parties to such 
     an agreement. 

     2.) Article 9 of the Collective Bargaining Agreement 
     provides that "[o]vertime shall be paid at a rate of time 
     and one half after the employee has completed forty (40) 
     hours worked within a work week."  Irrespective of FLSA 
     requirements, is the employer legally obligated to comply 
     with Article 9 of the collective bargaining agreement after 
     expiration of the contract?  Why or why not?  Can a practice 
     of granting compensatory time off in lieu of overtime pay 
     co-exist with Article 9's requirement that overtime be paid 
     at a rate of time and one half?

     The parties were instructed that in considering these legal 
issues, the Board will treat all facts alleged as true and will 
construe the complaint in the light most favorable to the 
complainant.  Buzzell, Wasson, and MSEA v. State of Maine, No. 96-14 
at 2 (Sept. 22, 1997).  When the allegations in the complaint are 
more than simply factual allegations but are legal conclusions, 
however, the Board is not bound to accept those legal conclusions 
as true.  MSAD #46 Educ. Assoc. v. MSAD #46 Board of Directors, No. 
02-13, Interim Decision, Nov. 27, 2002 and Wm. D. Neily v. State of 
Maine and MSEA, Decision on Appeal of Executive Director's Dismissal, 


[end of page 2]


No. 06-13, (May 11, 2006), citing Bowen v. Eastman, 645 A.2d 5, 6 
(Me. 1994).  The parties' collective bargaining agreement is 
considered part of the complaint (see MLRB Rules, Ch. 12 5(3).  
Exhibits attached to the complaint or to the response are not 
considered at this stage.
 
     The following statement of facts were included as part of the 
prohibited practice complaint in accordance with Board Rules Ch. 12 
5(4).
 
      
     Statement of Facts Supporting Prohibited Practice Complaint
 
     1.  Complainant is the bargaining agent, within the meaning of 
     26 MRSA 962(2) for a unit of Educational Support Professionals 
     (Administrative Assistants, School Secretaries, all 
     Educational Technicians I, Educational Technicians II,      
     Educational Technicians III, Bus Drivers, Head Bus Drivers, Van 
     Drivers, Mechanics, Custodians, Head Custodians, Maintenance,      
     Kitchen Managers and Food Service Workers) employed by the 
     Respondent. 

     2.	 Respondent is a public employer within the meaning of 26 
     MRSA 962(7).

     3.  Complainant and Respondent are parties to a collective 
     bargaining agreement with a duration of September 1, 2014 to      
     August 31, 2017.

     4.	 As of October 2, 2017, the parties have not reached a 
     successor agreement to the September 1, 2014, to August 31,      
     2017, collective bargaining agreement and remain engaged in 
     negotiations.

     5.	 The September 1, 2014, to August 31, 2017, collective 
     bargaining agreement is silent on the matter of compensatory      
     time.


[end of page 3]


     6.	 Under 26 965 "It is the obligation of the public employer 
and the bargaining agent to bargain collectively.  "Collective 
bargaining" means, for the purposes of this chapter, their 
mutual obligation:  ... To confer and negotiate in good faith 
with respect to wages, hours, working conditions and contract 
grievance arbitration..."

     7.	 Compensatory time is a mandatory subject of negotiations.

     8.	 Since 1996, coinciding with the closing of Maine Yankee, 
     the Wiscasset School Department and the Association established 
     a practice of compensating overtime hours worked by means of 
     compensatory time instead of monetary compensation;

     9.	 On November 18, 2016, during a meeting with Lori Cronk, 
     WESPA President, and Rose Mahoney, UniServ Director, Super-
     intendent Heather Wilmot raised a concern regarding an 
     employee's use of compensatory time.  The result of the      
     discussions was that the matter would be appropriately 
     addressed in successor negotiations.

     10.  On March 7, 2017, Superintendent Heather Wilmot instructed 
     bargaining unit member Cindy Collamore that she could no longer 
     receive or use compensatory time going forward and that any and 
     all compensatory time that had been accrued by Ms. Collamore 
     would be paid out.

     11.  On March 14, 2017, the Wiscasset Educational Support 
     Professionals Association issued a 10-day notice to bargain the      
     issue of compensatory time.

     12.  On March 28, 2017, the parties met to negotiate the matter 
     of compensatory time, but did not reach agreement on the matter.
 
     13.  On May 10, 2017, the parties met for the purpose of 
     negotiations for a successor agreement and the matter of      
     compensatory time pursuant to the March 14, 2017, 10-day notice 
     was rolled into successor negotiations.


[end of page 4]


     14.  On or about September 5, 2017, Superintendent Wilmot 
     issued a directive to all bargaining unit member[s] who have      
     earned compensatory time in the past that going forward they 
     would be required to be paid for overtime as it was worked and      
     that compensatory time would not be allowed.

     15.  By engaging in the behavior as described in this complaint, 
     the respondent has violated the MPELRL at 26 MRSA 964(1)(E) 
     and (A). 

                                                        
                              DISCUSSION

     The essence of the Association's complaint is that the Wiscasset 
School Department made a unilateral change by the Superintendent's 
directive of September 5, 2017, stating that going forward, overtime 
must be paid and compensatory time off would not be allowed.[fn]1  Article 
9 of the parties' collective bargaining agreement, which expired 
shortly before the directive was issued, requires the payment of 
overtime wages and makes no reference to compensatory time off.    
The Association alleges that there was an established practice of 
providing compensatory time off in lieu of overtime pay which the 
Employer was prohibited from changing unilaterally.
       
     It is well-settled law that the duty to bargain entails a duty 
to maintain the status quo with respect to mandatory subjects of 
bargaining while the parties are negotiating a successor agreement. 
See, e.g., Mtn. Valley Educ. Assn. v. M.S.A.D. #43, 655 A.2d 348, 
352 (Me. 1995) and City of Augusta v. MLRB et al., 2013 ME 63, 16.   
It is also well established that the duty to bargain continues during 
the term of a collective bargaining agreement, "provided the parties 

[fn] 1 Section 968(5) prohibits the Board from hearing any case based on conduct 
occurring more than 6 months prior to the filing of the complaint, which in this 
case is April 17, 2017.  Evidence of conduct prior to the 6 month limitation period 
may be used to shed light on conduct occurring within the 6 months.  Teamsters 
Local 48 v. City of Waterville, No. 80-14, at 2-3 (April 23, 1980).
 

[end of page 5]


have not otherwise agreed in a prior written contract." 26 M.R.S.A. 
Sec. 965(1)(B).  Subject to the effect of a "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.
 
Cape Elizabeth Teachers Assn. v. Cape Elizabeth School Board, No. 
75-24, at 4 (Oct. 16, 1975); East Millinocket Teachers Assn. v. East 
Millinocket School Committee, No. 79-24, at 4-5 (Apr. 9, 1979).
 
     As there is no zipper clause in this case, the question before 
the Board is whether a practice of compensatory time off in lieu of 
overtime pay can co-exist with a collective bargaining agreement that 
expressly requires overtime pay.  If not, the question is which 
alternative must serve as the basis of the status quo to be maintained 
while the parties are negotiating a successor agreement.
       
     Making a unilateral change in a mandatory subject of bargaining 
is considered a breach of the duty to bargain.  As we have explained 
on many occasions: 
       
          Changes in the mandatory subjects of bargaining 
     implemented unilaterally by the public employer 
     contravene the duty to bargain created by 965(1) of the 
     Act and violate 26 M.R.S.A. 964(1)(E).  The rationale 
     behind this principle of labor law is that an employer's 
     unilateral change in a mandatory subject of bargaining "is 
     a circumvention of the duty to negotiate which frustrates 
     the objectives of [the Act] much as does a flat refusal" 
     [to negotiate].  NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 
     11007, 1111, 8 L.Ed.2d 230 (1962); Lane v. Board of 
     Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 
     1982).
      
      
[end of page 6]
      
      
          In order to constitute a violation of 964(1)(E), 
     three elements must be present.  The public employer's 
     action must:  (1) be unilateral, (2) be a change from a 
     well-established practice, and (3) involve one or more of 
     the mandatory subjects of bargaining.  Bangor Fire 
     Fighters Association v. City of Bangor, MLRB No. 84-15, 
     at 8 (Apr. 4, 1984).  An employer's action is unilateral 
     if it is taken without prior notice to the bargaining agent 
     of the employees involved in order to afford said      
     representatives reasonable opportunity to demand 
     negotiations on the contemplated change.  City of Bangor 
     v. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1135 (Me. 
     1982).
      
Auburn Firefighters Assoc. Local 797, IAFF, AFL-CIO v. Paula Valente, 
No. 87-19, (Sept. 11, 1987) (quoting Coulombe v. City of South 
Portland, No. 86-11, at 11-12 (Dec. 29, 1986) citing Teamsters Local 
Union No. 48 v. Eastport School Dept, No. 85-18, at 4 (Oct. 10, 1985)).
       
     In the present case, the complaint alleges that "since 1996, 
. . . [the parties] established a practice of compensating overtime 
hours worked by means of compensatory time instead of monetary
compensation." 8.  The Association argues in its brief that a 
practice was established sufficiently to constitute a practice that 
could not be changed without first bargaining the change with the 
Association.  Brief at 8.  For the purposes of our analysis, we 
accept the allegation of an established practice as true.  The crux 
of the complaint is that the Employer's directive in September 
prohibiting compensatory time constituted a unilateral change in 
violation of the Employer's statutory duty to bargain.  To reach this 
point, the Association argues that Article 9 of the expired agreement 
requiring the payment of overtime pay does not preclude compensatory 
time off in lieu of overtime pay.  Brief at 8-10.
 
      
[end of page 7]


     The overtime provision of the expired collective bargaining 
agreement states, in full:
      
                                ARTICLE
                                OVERTIME


     No employee shall work overtime without prior approval. 
     Overtime shall be paid at a rate of time and one half after the      
     employee has completed forty (40) hours worked within a work 
     week. Paid sick leave, vacation leave, holiday leave, or other      
     approved paid leaves shall not constitute time worked for 
     purposes of computing overtime.

     Nothing in this Agreement shall prevent the Committee from 
     employing spares or on-call employees to avoid overtime except      
     that if an assignment would result in overtime for a spare, 
     overtime will be offered to employees before being offered to      
     non-unit members.  The Committee shall not curtail an 
     employee's regular hours to avoid overtime.


     There are no provisions in the collective bargaining agreement 
that are inconsistent with this overtime provision or provide any 
sort of opening for exceptions to the requirement of paying employees 
time and half for overtime hours.  Furthermore, there is no 
"maintenance of benefits" provision or any other type of provision 
indicating that established practices must be continued.  

     The Association alleges in paragraph 5 of the complaint that 
the parties' collective bargaining agreement is "silent" on the issue 
of compensatory time off.  To the extent that the CBA does not 
specifically use the term "compensatory time," this is true, but that 
does not mean the agreement permits the use of compensatory time. 
We see no ambiguity in the Article 9 language:  it requires the 
payment of overtime wages and provides no exceptions.  We cannot 
imagine any instance in which a practice of granting compensatory 
time off in lieu of the overtime pay required by Article 9 can occur 


[end of page 8]


without expressly amending the language of Article 9. 
 
     Past practice is often considered by this Board and the courts 
to fill gaps in the terms of collective bargaining agreements or to 
interpret ambiguities in contract language.  For example, in Bangor 
Fire Fighters' Association, the Board ordered the employer to apply 
the established practice of sharing increases in insurance costs to 
a situation where costs had decreased, even though the parties had 
never contemplated a reduction in insurance premiums.  Bangor Fire 
Fighters' Assoc., Local 772, IAFF v. City of Bangor, No. 93-20   
(Aug. 9, 1993) at 14, aff'd City of Bangor v. MLRB et al., 658 A.2d 669 (Me. 1995).  Similarly, in Lincoln Firefighters' Association, 
the Board ordered the town to continue retirement contributions at 
the same rate established by past practice even though the contract 
was silent on the matter.  Lincoln Firefighters' Assn., Local 3038, 
IAFF v. Town of Lincoln, No. 93-18, at 8 (Apr. 21, 1993)("Where the 
contract is silent, past practice will determine what the employer 
must do (or not do) until an alternative to that practice is 
negotiated.").  See also, Norman P. Whitzell v. Merrymeeting 
Educators Assoc., CV-80-124 at 4 (Me. Sup. Ct., Sag. Cty., Dec. 28, 
1982)(Board may look at extrinsic evidence including past practice 
to determine the meaning of ambiguous contract language.) 

     In cases where the contract language is unambiguous, past 
practice that is in direct conflict with clear terms of the contract 
cannot amend the contract unless there is unequivocal evidence of 
a "meeting of the minds."  With respect to unambiguous language, we 
agree with the approach adopted by the Michigan Supreme Court:

        The party seeking to supplant the contract language must 
     show the parties had a meeting of the minds with respect 


[end of page 9]


     to the new terms or conditions so that there was an agreement 
     to modify the contract.  

See Port Huron Educ. Ass'n/MEA/NEA v. Port Huron Area School 
District, 452 Mich. 309, 312 (1996)(Tacit acceptance of a practice 
in conflict with unambiguous language or continuation of a mistake 
not enough to show amendment by mutual agreement).  See also In Re 
New Hampshire Dept. of Safety, 921 A.2d 924 (N.H. 2007)(Practice for 
utilizing leave time existed openly for many years, was widely 
acknowledged and accepted by the parties, and the repeated confirm-
ations during negotiations of several contracts that the practice 
would continue to be adhered to was sufficient to amend language of 
contract); and Local 387 NP-4 Unit Council 4 AFSCME v. State of 
Connecticut Department of Corrections, 56 Conn. L. Rptr. 548, 5 (Sup. 
Ct. Conn., New Britain J.D., July 16, 2013)(Past practice of allowing 
full days off for funerals did not modify unambiguous terms of the 
agreement in the absence of meeting of the minds).  In the present 
case, past practice is not relevant because there is no ambiguity 
or gaps to fill--the language of article 9 is clear and unequivocal.  
The Association alleges that the practice actually predates the 
collective bargaining agreement.  As there was no allegation in the 
complaint that there was a meeting of the minds, after the contract 
was negotiated, to change the contract, the unambiguous terms of 
Article 9 must be maintained as the status quo.

     We further conclude that in the circumstances of this case, the 
Employer's action with respect to compensatory time was not a 
unilateral change because the parties did bargain over the matter.  
As previously noted, an employer's action is unilateral if it is taken 
without prior notice to the union in order to afford the union 
a reasonable opportunity to demand negotiations on the change.


[end of page 10


City of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982).  
See also Teamsters v. Town of Eliot, No. 14-04 at 17 (Because employer 
did not provide notice of plan to reduce an employee's hours of 
employment, there was no opportunity to demand bargaining about the 
reduction so change was unilateral.) 
       
     An examination of the factual allegations in the complaint 
demonstrates this.  Paragraph 10 alleges that on March 7, 2017, the 
Superintendent instructed a particular bargaining unit member that 
she could no longer receive or use compensatory time going forward 
and that any compensatory time she had accrued would be paid out.  
Given that the next paragraph of the complaint states that on March 
14, 2017, the Association issued a 10-day notice to bargain the issue 
of compensatory time[fn]2, we conclude that the Association had actual 
notice of the change.  Furthermore, paragraph 12 states, "On 
March 28, 2017, the parties met to negotiate the matter of compen- 
satory time, but did not reach agreement on the matter," and paragraph 
13 states that on May 10, 2017, the parties met to negotiate a 
successor agreement and the issue of compensatory time was "rolled 
into" successor negotiations.  Finally, paragraph 4 states that as 
of October 2, 2017, the parties had not reached a successor agreement 
to the one that expired on August 31, 2017, and remain engaged 
in negotiations.  The September 5, 2017, directive of the 
Superintendent reaffirmed the Employer's position that the terms of 
the expired agreement requiring the payment of overtime pay for 
overtime hours worked must be applied and compensatory time would 
not be allowed.  
      
     When an employer is alleged to have made a unilateral change 
      
      
[fn]2 26 M.R.S. 965(1)(B) requires a party to meet within 10 days of a written 
request to bargain.
      
      
[end of page 11]
      
      
in a mandatory subject of bargaining during negotiations for an 
initial or a successor agreement, the employer is generally 
prohibited from implementing a change until overall impasse is 
reached.  See Mountain Valley Educ. Assoc. v. MSAD #43, 655 A.2d 348, 
352 (Me 1995).  In the situation presented in this case, however, 
the issue predates successor negotiations and is essentially the 
Union's demand to bargain a change in the terms of the existing 
agreement (the expired agreement, subsequent to August 31, 2017). 
That written agreement clearly and unambiguously required overtime 
pay.  The Employer gave the Association the opportunity to bargain 
and did, in fact, bargain over the matter.  It cannot be said that 
the Employer's directive was a unilateral change simply because the 
Association did not succeed in getting the Employer to agree to new 
language in the collective bargaining agreement addressing 
compensatory time.  

	
     The parties are free to bargain new terms in the successor 
agreement to provide compensatory time off in lieu of overtime, but, 
as with all matters, neither party may be compelled to make an 
agreement or concession.  26 M.R.S. 965(1)(C).  Here, as evidenced 
by Article 9, the parties included overtime requirements in their 
most recent agreement.  We need not decide, and therefore will not 
decide, whether the alleged practice of granting compensatory time 
in lieu of overtime pay was lawful under the Fair Labor Standards 
Act.

   For the foregoing reasons, we hold the complaint does not allege 
a violation of the Act.  The Employer did not violate 26 MRS 
964(1)(E) or (A) by insisting on adherence to Article 9 of the 


[end of page 12]


parties' expired collective bargaining agreement.  The complaint is 
dismissed.

Dated in Augusta, Maine, this 14th day of May 2018.
	 
      

The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.

MAINE LABOR RELATIONS BOARD

Katharine I. Rand
Chair

Robert W. Bower, Jr.
Employer Representative

Amie B. Parker
Employee Representative

 

[end of page 13]