STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-19
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)
MALCOLM CHARLES, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF WATERVILLE, )
)
Respondent. )
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This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint dated January 25, 1978 and filed on February 2, 1978
by Malcolm Charles, a Patrolman with the City of Waterville, Maine, Police Depart-
ment. The City of Waterville's answer to this Complaint was dated February 23,
1978, and filed February 24, 1978 by James E. Millett, Esquire, City Solicitor.
A pre-hearing conference on the matter was held in Augusta, Maine on April 4,
1978, with Alternate Chairman Donald W. Webber presiding. As a result of this
pre-hearing conference, Alternate Chairman Webber issued on April 11, 1978 a Pre-
Hearing Conference Memorandum and Order, the contents of which are incorporated
herein by reference.
The Maine Labor Relations Board on May 23, 1978 conducted a hearing on the
matter in Augusta, Maine, Alternate Chairman Donald W. Webber presiding, with
Michael Schoonjans, Employee Representative and Henry W. Mertens, Second Alternate
Employer Representative. All briefs on the legal questions raised by the case
were filed by June 27, 1978, and the Board proceeded to deliberate on the case on
June 28, 1978.
JURISDICTION
No party has challenged the jurisdiction of the Maine Labor Relations Board
in this matter, and we conclude that this Board has jurisdiction to hear and
render a decision in this case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the pleadings
and the Pre-Hearing Conference Memorandum and Order, we find that:
1. Complainant Malcolm Charles, a Patrolman, acting on behalf of
himself and all similarly situated employees of the Waterville,
Maine, Police Department, is a public employee as defined in
26 M.R.S.A. 962(6).
2. Respondent City of Waterville ("City") is a public employer as
defined in 26 M.R.S.A. 962(7), with an address of City Hall,
Waterville, Maine 04901.
3. On December 31, 1976, a collective bargaining agreement expired
which covered the patrolmen employed by the Waterville Police
Department and which was executed by representatives of Local
No. 1828, Pine Tree Council No. 74, American Federation of State,
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County and Municipal Employees, AFL-CIO ("Council No. 74") and
the City. Article 30, Section 1, of this collective bargaining
agreement provided that the agreement would remain in full force
and effect during the period of negotiations over a successor
agreement. Negotiations over a successor agreement continued
until December, 1977, when negotiations were terminated
by the patrolmen.
4. Article 11, Section 1 of the collective bargaining agreement pro-
vided the following vacation schedule:
Length of Employment Working Days of Vacation
1-8 years 12 days
8-15 years 18 days
Over 15 years 24 days
5. Article 13, Section 1 of the collective bargaining agreement provided
that sick leave would be computed at the rate of fifteen days per
year.
6. These contractual provisions concerning sick leave and vacations are
codified in Articles 5 and 8, respectively, of the City's "Civil
Service Board Rules and Regulations for City of Waterville Employees
As Amended," adopted by the Waterville City Council on July 20, 1971.
7. Article 14, Section 1 of the collective bargaining agreement provides
for a four-step grievance procedure by which "[a]ll grievances or dis-
putes . . . , including the application, meaning or interpretation
of this agreement, must be settled. . . "
8. By directive dated August 29, 1977 to all Police Department Personnel,
Chief of Police Ronald Laliberte provided that Police Department per-
sonnel would as of September 15, 1977 work rotating schedules of four
10 1/2 hour days on duty, with three days off duty. Prior to Septem-
ber 15, 1977, patrolmen worked rotating schedules of six 8 hour days
on duty and two days off duty.
9. The August 29, 1977 directive from the Chief of Police also provided
that vacation time would remain as set forth in the collective bargaining
agreement and in the Civil Service Board Rules and Regulations, but
that, effective September 15, 1977, Police Department personnel would
be assessed 10 hours of sick leave time for each full working day missed.
10. By directive to all Police Department personnel, dated October 24,
1977, Chief of Police Laliberte provided that "[v]acations will be
in week increments from now on as opposed to working days as was done
in the past," with vacations starting on Sunday and ending on the
following Sunday.
11. On October 25, 1977, a patrolman with the Police Department filed a
grievance against the Police Department concerning the change in the
vacation schedule. The grievance proceeded through the first three
steps of the four-step grievance procedure provided in the collective
bargaining agreement, and by letter dated February 9, 1978, Council
No. 74 informed the City that Council No. 74 was appealing the griev-
ance to arbitration, as provided in the fourth step of the grievance
procedure. Council No. 74 on June 16, 1978 filed a request that an
arbitration panel of the Maine Board of Arbitration and Conciliation be
assigned to the case.
12. On November 9, 1977, a petition seeking to decertify Council No. 74
as the bargaining agent for the patrolmen employed by the Waterville
Police Department was filed with the Maine Labor Relations Board. In
a decertification election conducted on February 1, 1978, Council No.
74 was decertified as the bargaining agent for the patrolmen.
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13. Teamsters Local Union No. 48 was certified as the new collective
bargaining agent for the patrolmen employed by the Waterville
Police Department on March 17, 1978.
DECISION
Complainant has charged that the City of Waterville, acting through its
representative and agent Chief of Police Ronald Laliberte, violated 26 M.R.S.A.
964(1)(E) by unilaterally changing vacation and sick leave schedules without
negotiating with the patrolmen's certified bargaining agent. Respondent defends
the Chief's actions on the grounds that, in light of the grievance procedure con-
tained in the collective bargaining agreement, this Board is not the proper forum
for resolving the dispute; that no changes in the patrolmen's vacation and sick
leave schedules requiring negotiation have occurred; and that, even if the vaca-
tion and sick leave schedules were changed, Respondent negotiated these changes
with the patrolmen's certified bargaining agent prior to instituting the changes.
We find that the facts of this case require that we observe a limited exception to
our policy of deferring to grievance proceedings, and, reaching the merits of the
case, that Respondent did unilaterally change the patrolmen's vacation and sick
leave schedules in violation of 26 M.R.S.A. 964(1)(E).
I.
Respondent argues on brief that this Board has consistently dismissed the com-
plaint or deferred ruling on the case when there is a collective bargaining agree-
ment in effect which provides a grievance mechanism for resolving the matter in con-
troversy, MSAD #45 Teachers Ass'n v. MSAD #45 Board of Directors, M.L.R.B. Case
No. 78-10 (1978); Bangor Education Ass'n v. Bangor School Committee, M.L.R.B. Case
No. 76-11 (1976); Tri-22 Teachers Ass'n v. SAD No. 22 Board of Directors M.L.R.B.
Case No. 75-28 (1975). Respondent notes that Article 14, Section 1 of the collec-
tive bargaining agreement, which continued in effect during the period of negotia-
tions over a successor agreement, provides for a four-step grievance procedure by
which "[a]ll grievances or disputes . . . , including the application, meaning or
interpretation of this agreement, must be settled . . . ," and argues that the dis-
putes over vacation and sick leave schedules concern the application, meaning or
interpretation of the agreement. Moreover, Respondent urges, all parties concerned
recognized that the dispute over the vacation schedule was a proper subject for
grievance, shown by the fact that the dispute to date has progressed through three
steps of the grievance procedure provided in the contract. Respondent contends
in addition that since the patrolmen failed to utilize the grievance procedure to
resolve the dispute over sick leave, Complainant is barred from raising the sick
leave issue before this Board.
In Tri-22, supra, the Board adopted the rule that "employees should use an
available contract grievance procedure as a method of redressing their grievances
prior to commencing . . . a prohibited practice complaint" (page 3). To rule to
the contrary, we concluded, would permit an individual employee to side-step avail-
able grievance procedures, thereby depriving the employer and union of the ability
to establish a uniform and exclusive method for orderly settlement of employee
grievances. Accordingly, we dismissed the complaint which instituted the Tri-22
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proceeding. We have subsequently applied the principle enunciated in Tri-22 in
several cases, and hereby take the opportunity specifically to reaffirm our holdings
in Tri-22.
However, the facts of the present case require that we permit the following
very limited exception to the deferral principle adopted in Tri-22. When the
interests of the employees filing the prohibited practice complaint are in conflict
with the interests of the labor organization representing the employees as well as
the interests of the public employer, we will not defer to the grievance procedure
provided in the contract, but will instead proceed to a determination of the merits
of the complaint, see Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976);
Kansas Meat Packers, 198 NLRB 543 (1973). In our opinion, this limited exception to
the deferral rule is necessary in order to protect fully the free exercise of the
rights provided to public employees in 26 M.R.S.A. 963. When the interest of the
labor organization and employees involved is in conflict, the employees' interests
may not be adequately represented in the grievance process. Consequently, we believe
that in light of Section 963 we cannot preclude public employees from having the
merits of their case decided by this Board when their grievance procedure is adminis-
tered by parties whose interests conflict with the interests of the employees.
We find that a conflict of interest triggering the exception to the deferral
rule exists in the present case. The grievance over the vacation schedule was
instituted on October 25, 1977. Thereafter, the grievance was duly processed through
the first three steps of the grievance procedure until, on February 9, 1978, a repre-
sentative of Council No. 74 notified the City Administrator that Council No. 74 was
invoking the fourth step of the procedure by appealing the grievance to arbitration.
However, a request that an arbitration panel be assigned to the grievance was not submitted
for over four months, on June 16, 1978. During the pendency of this grievance pro-
ceeding, a decertification petition was filed on November 9, 1977, the election
decertifying Council No. 74 as bargaining agent was conducted on February 1, 1978,
and this Board conducted its hearing in this case on May 23, 1978. We find that the
time lag between completion of the third step and institution of the fourth step of
the grievance procedure, in conjunction with the filing of the decertification peti-
tion and actual decertification of Council No. 74, is prima facie evidence that the
patrolmen's and Council No. 74's interests are in conflict. Although Council No.
74 has submitted a request for an arbitrator, the apparent conflict in interests
suggests that the employee's interests may not be adequately represented in the
arbitration proceeding. We therefore conclude that we should not defer to the
arbitration proceeding, as regards the vacation schedule controversy, or dismiss
the complaint, as regards the sick leave dispute which was not grieved, but should in-
stead proceed to decide this case on the merits.
II.
Respondent first argues with respect to the merits of the case that, with
institution of the "4-3" work week on September 15, 1977, neither the vacation nor
the sick leave schedules were changed so as to require negotiation with the patrol-
men's collective bargaining agent. As for the vacation schedule, Respondent notes
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that prior to September 15, 1977, patrolmen worked rotating schedules of six 8
hour days on duty with two days off duty, and were accorded, depending on seniority.
12, 18 or 24 working days per year as vacation, which translates into two, three,
or four weeks of vacation under the six-day work plan. The intent of the parties to
the collective bargaining agreement, according to Respondent, thus was to afford
the patrolmen two, three or four weeks of vacation per year, with the 12, 18 or
24 "working days" language in Article 11 of the contract merely corresponding to
the 6-day work week which was in effect when the contract was executed. No change
in the vacation schedule occurred with institution of the "4-3" work plan on
September 15, 1977, Respondent asserts, because the patrolmen are still granted
two, three or four weeks of vacation per year, even though such vacation time under
the "4-3" plan translates into 8, 12, or 16 "working days" of vacation per year.
Similarly, with regard to the sick leave dispute, Respondent urges that the
intent behind Article 13, Section 1 of the collective bargaining agreement, which
provides fifteen days of sick leave per year for patrolmen, was to protect 120
hours of work missed on account of sick leave (15 days x 8 hours = 120 hours).
No change in the sick leave schedule has occurred, Respondent contends, because the
patrolmen are still allowed 120 hours per year of sick leave, despite the fact that
under the "4-3" plan sick leave is computed at a rate of 10 hours per day missed,
which amounts to 12 days of sick leave per year (12 days x 10 hours = 120 hours).
We find that changes requiring negotiation in the patrolmen's vacation and
sick leave schedules have occurred. As stated in Article 11, Section 1 of the
collective bargaining agreement and in Article 8 of Respondent's Civil Service
Board Rules and Regulations, patrolmen are to be accorded 12, 18 and 24 "working
days" of vacation per year, depending upon length of service. With institution
of the "4-3" work week plan, the patrolmen are now allowed 8, 12, and 16 "working
days" of vacation per year. Article 13, Section 1 of the collective bargaining
agreement and Article 5 of the Civil Service Board Rules and Regulations provide
that patrolmen are entitled to 15 days of sick leave per year. With implementation
of the "4-3" work plan, the patrolmen are now accorded 12 days of sick leave per
year.
Such reductions in the number of working days allowed as vacation time and
the number of days allowed as sick leave clearly result in changes in the patrol-
men's vacation and sick leave schedules. Had the parties intended that the patrol-
men be allowed two, three or four weeks of vacation per year or 120 hours of sick
leave per year, as is urged by Respondent on brief, then such intentions could have
been expressed in the collective bargaining agreement. Instead, the parties pro-
vided in the agreement that the patrolmen would be allowed 12, 18 and 24 working days
of vacation and 15 days of sick leave. Respondent's Civil Service Board Rules and
Regulations provide for an identical number of days for vacations and sick leave.
We conclude that Respondent is bound by the clear, unequivocal language which
appears in the collective bargaining agreement and in the Civil Service Board Rules
and Regulations. Implementation of the "4-3" work week on September 15, 1977 did
not obviate Respondent's obligation, absent negotiations and settlement of the proposed
changes in vacation and sick leave schedules, to grant the number of vacation and
sick leave days provided in the agreement and the Civil Service Board Rules and
Regulations.
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In light of the clear, unequivocal language in the agreement and in the Civil
Service Board Rules and Regulations, we cannot agree with Respondent's arguments
concerning the "intentions" underlying this language.
We also find that Respondent was required to negotiate with the patrolmen's
collective bargaining agent before instituting the changes in the vacation and sick
leave schedules. Title 26 M.R.S.A. 965(1)(C) provides in pertinent part that
the public employer and bargaining agent are mutually obligated to negotiate in good
faith "with respect to wages, hours, [and] working conditions . . ." Title 26
M.R.S.A. 964(1)(E) provides that public employers and their representatives and
agents are prohibited from refusing to bargain collectively with the bargaining
agent as required in 26 M.R.S.A. 965. Both vacation and sick-leave schedules
are, we believe, mandatory subjects of bargaining under Section 965. We have held
numerous times that a public employer's unilateral change in a mandatory subject
of bargaining constitutes a violation of 26 M.R.S.A. 964(1)(E), see Lake Teachers
Ass'n v. Mount Vernon School Committee, M.L.R.B. Case No. 78-15 (1978).
Respondent urges, however, that "unilateral" changes in the vacation and sick
leave schedules did not occur because there were in fact negotiations over the pro-
posed changes prior to institution of the changes. In any event, Respondent argues,
it was not obligated to negotiate over the changes because the bargaining agent did
not specifically request negotiation concerning the changes.
Testimony during the hearing indicated that negotiations occurred between Re-
spondent and the bargaining agent over the vacation and sick leave provisions to be
included in a new collective bargaining agreement and over the possible impact of
institution of the "4-3" work plan. However, there is no evidence in the record
which suggests that negotiations took place over the change in the sick leave
schedule as of September 15, 1977, or over the change in the vacation schedule on
October 24, 1977. Nor is there any evidence that an impasse in negotiations had
been reached, or that important business exigencies required that the changes in the
vacation and sick leave schedules be implemented, see Maine State Employees Ass'n
v. State of Maine, M.L.R.B. Case No. 78-23 (1978). We believe that negotiations
specifically concerning the proposed implementation of the changes on September 15th
and October 24th were required. The negotiations over vacation and sick leave pro-
visions for a new contract and general discussions concerning the potential impact of
the "4-3" work plan were not sufficient, we conclude, to fulfill Respondent's obli-
gation to bargain under 26 M.R.S.A. 965. Consequently, we find that the changes
in the sick leave schedule as of September 15, 1977 and in the vacation schedule on
October 24, 1977 were unilateral changes by Respondent.
In addition, we do not agree that Respondent's obligation to bargain was vitiated
because the bargaining agent did not specifically request to negotiate the changes
in the sick leave and vacation schedules. As is admitted by Respondent on brief,
the bargaining agent at the commencement of negotiations proposed that vacations and
sick leave be negotiated, and negotiations over these items did in fact occur. Assum-
ing that the bargaining agent was aware prior to implementation of the specific dates
upon which the changes were to be implemented, we find that the bargaining agent was
not required to reiterate its bargaining proposals each and every time it learned of
a possible change in the vacation or sick leave schedules. Once the bargaining agent
submitted its proposals to negotiate over vacation time and sick leave, Respondent was
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placed on adequate notice that these items were areas in which no unilateral
changes should occur without prior negotiation.
We therefore conclude that Respondent was required under 26 M.R.S.A. 965
to negotiate the change as of September 15, 1977 in the patrolmen's sick leave
schedule and the change on October 24, 1977 in the patrolmen's vacation schedule,
and, having failed to so negotiate, Respondent violated 26 M.R.S.A. 964(1)(E).
ORDER
On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
968(5) of the Municipal Public Employees Labor Relations Act, it is hereby
ORDERED:
1. That the City of Waterville, and its representatives and agents, cease
and desist from engaging in any of the acts prohibited by 26 M.R.S.A.
964(1) and especially from refusing to bargain collectively with the
bargaining agents of its employees as required by 26 M.R.S.A. 965;
2. That the City of Waterville accord the patrolmen employed by the City
of Waterville Police Department the number of working days of vacation
set forth in the vacation schedule in Article 11, Section 1, and the
number of days of sick leave set forth in the sick leave schedule in
Article 13, Section 1, of the last collective bargaining agreement
between the City and Council No. 74, until such time as a new collective
bargaining agreement between the City and the patrolmen's bargaining
agent is entered into, at which time the patrolmen's vacation and sick
leave schedules shall be governed by the provisions of such new collective
bargaining agreement.
Dated at Augusta, Maine this 21st day of July, 1978.
MAINE LABOR RELATtONS BOARD
/s/________________________________________
Donald W. Webber
Alternate Chairman
/s/________________________________________
Michael Schoonjans
Employee Representative
/s/________________________________________
Henry W. Mertens
Second Alternate Employer Representative
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