STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-02
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)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY WORKERS IN THE )
STATE OF MAINE, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
TOWN OF JAY, )
)
and its )
)
TOWN MANAGER, MICHAEL HOULIHAN, )
)
Respondents. )
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On July 13, 1979 Teamsters Local Union No. 48 ("Local 48") filed a prohibited
practice complaint against the Town of Jay and its Town Manager, Michael Houlihan
("Town"). An amended complaint was filed by Local 48 on August 2, 1979. The Town
filed an answer to the complaint on July 24, 1979.
A pre-hearing conference on the case was held on August 9, 1979, Alternate
Chairman Donald W. Webber presiding. As a result of this pre-hearing conference,
Alternate Chairman Webber issued on August 14, 1979 a Pre-Hearing Conference Memo-
randum and Order, the contents of which are incorporated herein by reference.
A hearing on the case was held on September 25, 1979, Alternate Chairman
Webber Presiding, with Alternate Employer Representative Thacher E. Turner and
Alternate Employee Representative Harold S. Noddin. Briefs arguing the issues
raised by the case were filed subsequent to the hearing, and have been considered
by the Board. The Board proceeded to deliberate over the case at a conference
held November 5, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this case, and we conclude that this Board has jurisdiction to hear the
case and render a decision as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Teamsters Local Union No. 48 is a public employee labor
organization and bargaining agent within the meaning of
26 M.R.S.A. 968(5)(B). The Town of Jay and its Town
Manager are public employers within the meaning of
26 M.R.S.A. 968(5)(B).
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2. At a February 1, 1979 decertification/certification election
held for a bargaining unit composed of Patrolmen and Dispatchers
in the Jay Police Department, Local 48 was certified as the bar-
gaining agent by a unanimous vote. The Town filed objections
to the election, and, after a hearing on the objections, the
Board on May 15, 1979 dismissed the objections and affirmed the
certification of the election. No collective bargaining agree-
ment was in effect for the bargaining unit when Local 48 filed
its complaint and amended complaint in this case.
3. In July, 1971, the Jay Board of Selectmen adopted a policy that
Town employees would be paid at noon on Thursdays of each week,
unless an employee needed money at some other time due to an
emergency. The Board of Selectmen have not changed this policy
since its adoption. However, in 1977 the Town Clerk started
handing out paychecks on Wednesdays to the Janitor in the Town
Office and to the Patrolmen and Dispatchers when these employees
asked for their checks on Wednesdays. The practice of paying
these employees on Wednesdays continued throughout 1978 on a
regular basis. The paychecks were always dated for Thursday of
each week, and the Selectmen were unaware at the time that any
Town employees were receiving their checks on Wednesday.
4. In January or February, 1979, the Town Clerk told the Town Mana-
ger that she had been issuing checks on Wednesdays to certain
employees. The Town Manager reported the situation to the Board
of Selectmen, who ordered that the practice of issuing paychecks
on Wednesdays cease. When the Patrolmen attempted to pick up
their paychecks on Wednesday, February 14, 1979, they were told
by the Town Clerk that they could not get their checks until
Thursday, as the Clerk had been directed by the Town Manager not
to issue any more checks on Wednesdays.
5. On February 28, 1979, the Patrolmen were informed by the Chief of
Police that the Town Manager had ordered that the Patrolmen stop
using the police cruiser to pick up the officer coming on duty at
his home. The Patrolmen had been picking each other up with the
cruisers at least since 1975, and had been doing so on a regular
basis for at least 1-1/2 years. The Patrolmen were reluctant to
leave their own vehicles at the Police Station while they were on
duty because one Patrolman's car had been seriously damaged by
vandals while parked at the Station. Although the Patrolmen had
not sought permission to pick each other with the cruisers, the
Chief of Police and the Town Manager were aware of the practice.
The Board of Selectmen's policy was that Town vehicles should not
be used for personal conveyance except in emergencies.
6. On or about July 25, 1979, the Chief of Police, acting in accord-
ance with the directions of the Board of Selectmen, changed the
scheduling procedures for regular and overtime assignments for
the Patrolmen. This change increased each Patrolmen's work week
from 40 to 56 hours, required the Patrolmen to work 14 consecutive
days, and in effect eliminated the posting and bidding procedure
which previously had been followed. The Town Manager informed
the Patrolmen that they would be subject to discharge if they re-
fused to work the schedule assigned for a two-week period from
July 23, 1979 to August 6, 1979.
DECISION
Local 48 charges that the Town violated 26 M.R.S.A. 964(1)(A) and (E) by
unilaterally changing the Patrolmen's wages, hours and working conditions. Local
48 alleges that the Town made unlawful unilateral changes by 1) ordering that the
practice of issuing paychecks to Patrolmen on Wednesdays stop, 2) ordering that
the Patrolmen stop using police cruisers to pick up officers coming on duty, and
3) changing the shift schedule. The Town urges that it committed no violation be-
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cause the changes were made merely to conform practice with Board of Selectmen
policy, and because the Town's actions were a proper exercise of management
prerogative.
After carefully considering the facts, we find that the Town improperly
changed the Patrolmen's wages, hours and working conditions without negotiating
the changes with the employees' bargaining agent. We conclude that the unilateral
changes violated Section 964(1)(A) and (E), and order remedies necessary to
effectuate the policies of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. 961, et seq. ("Act").
1. The alleged violations of Section 964(1)(E). The prohibition of a public
employer's unilateral changes in wages, hours and working conditions is well-known.
See, e.g., N.L.R.B. v. Katz, 369 U.S. 736 (1962); Lake Teachers Association v.
Mount Vernon School Committee, M.L.R.B. No. 78-15 (1978). The essence of this
prohibition is that once a bargaining agent has begun to represent a unit of em-
ployees, the employer may not make unilateral changes in mandatory subjects of
bargaining without negotiating the changes with the bargaining agent.
The mandatory subjects of bargaining under the Act are "wages, hours, working
conditions and contract grievance arbitration." 26 M.R.S.A. 965(1)(C). Any
unilateral changes in these subjects constitutes a per se violation of the duty to
bargain, found in the Act in Section 964(1)(E). The rationale for this prohibi-
tion is that unilateral changes involving subjects about which the employer is
obligated to bargain "is a circumvention of the duty to negotiate which frustrates
the objectives of [the duty] much as does a flat refusal [to bargain]." 369 U.S.
at 743.
The issues which we must decide in this case thus are 1) did the Town uni-
laterally change anything, 2) if so, did the change involve the Patrolmen's wages,
hours, or working conditions, and 3) if so, are any of the limited exceptions to
the rule prohibiting unilateral changes applicable?
There is no question that the Town unilaterally changed the practice of
paying the Patrolmen on Wednesdays when so requested. The Town contends that
since the Selectman's policy has since 1971 been to pay employees on Thursdays.
there really was no change when the Town Clerk was directed to cease paying the
Patrolmen on Wednesdays. The problem with this argument is that it ignores the
fact that, despite the Selectmen's policy, the practice of issuing checks on Wed-
nesday had become established. The Town Clerk had been paying the patrolmen on
Wednesdays on a regular basis for over a year.
The fact that the Selectmen did not know of the practice is not significant,
because other agents and representatives of the Town were aware of the practice.
The Town Clerk is an agent or representative of the Town, and her actions are to
be considered those of the Town under the Act. See 26 M.R.S.A. 962(7) and
964(1). Since the Clerk knew of the practice, the Town is considered to have
known that the practice was occurring despite the Selectmen's policy.
Because the practice of issuing paychecks to Patrolmen on Wednesdays had
become established, there was a change in this procedure when the Selectmen ordered
that the Wednesday release of checks cease. The Town did not bargain this change
with Local 48, which had been elected the Patrolmen's bargaining agent two weeks
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prior to the change. The change thus was a unilateral act on the part of the
Town.
The fact that the Town's objections to the February 1, 1979 election were
pending before the Board when the change occurred did not relieve the Town of
its duty to bargain about the change:
". . . an employer acts at its peril in making changes in
terms and conditions of employment during the period that
objections to an election are pending and the final determ-
ination has not yet been made. And where the final determ-
ination on the objections results in the certification of a
representative, the Board has held the employer to have
violated [the Act] for having made such unilateral changes.
Such changes have the effect of bypassing, undercutting, and
undermining the union's status as the statutory representa-
tive of the employees in the event a certification is issued.
To hold otherwise would allow an employer to box the union
in on future bargaining positions by implementing changes of
policy and practice during the period when objections or
determinative challenges to the election are pending."
Mike O'Connor Chevrolet, 209 NLRB 701, 703 (1974). The Town accordingly was
obligated to bargain with Local 48 about any changes in mandatory subjects for
the Patrolmen, even though the Town's objections to the election were pending.
It is also clear that the issue of the time when employees are to receive
their paychecks is a mandatory subject of bargaining: "The time when a worker
is to receive his pay is so closely related to the amount that he is paid that it
reasonably falls within the term 'wages'." City of Fort Dodge v. Public Employ-
ment Relations Board, 1977-1978 PBC S 36, 227 (Iowa Dist. Ct. Feb. 7, 1978).
The issue of the day upon which the Patrolmen are to receive their paychecks thus
is encompassed within the statutory term "wages." The practice of issuing pay-
checks on Wednesday could not be lawfully changed by the Town without negotiating
the change with Local 48.
Finally, the limited exceptions to the rule prohibiting unilateral changes
in mandatory subjects are not applicable. These exceptions involve impasse, waiver,
business exigency, and traditional practice. Maine State Employees Association v.
State of Maine, MLRB No. 78-23 at 4, aff'd sub nom. State of Maine v. Maine Labor
Relations Board, No. CV78-484 (Kennebec County Super. Ct. Aug. 7, 1979). The Town
does not argue that any of these exceptions excuse its unilateral change of the
paycheck practice, and there is no evidence upon which to find that any of the
exceptions to the rule were present.
We accordingly conclude that the Town committed a per se violation of Section
964(1)(E) by unilaterally halting the practice of giving the Patrolmen their pay-
checks on Wednesdays.
Much the same analysis applies to Local 48's two remaining allegations. With
regard to the use of the cruisers to pick up Patrolmen coming on duty, it is plain
that this practice had become well-established despite Selectmen policy that
Town vehicles should not be used for personal conveyance. Although the Selectmen
may have been unaware of the practice, other Town agents and representatives, in-
cluding the Chief of Police and the Town Manager, knew of the practice and allowed
it to continue. The Town did not negotiate with Local 48 on the issue whether
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the Patrolmen should discontinue using the cruisers to bring officers to work.
The Town therefore unilaterally changed the practice when the Selectmen ordered
that the Patrolmen stop picking each other up in the cruisers.
The use of company vehicles for transportation to and from work involves
working conditions, and accordingly is a mandatory subject of bargaining.
Eagle Material Handling of New Jersey, 224 N.L.R.B. 1529, 1532-33 (1976).
Whether or not the Patrolmen were to revert to using their own vehicles to get
to work is "plainly gemane to the 'working environment'." Ford Motor Co. v.
N.L.R.B., 441 U.S.___, 60 L. Ed. 2d 420, 429, 99 S. Ct. 1842 (1979). This is
particularly true since one Patrolman's car had been seriously damaged by vandal-
ism while it was parked at the Police Department and the Patrolman was on duty.
Whether the practice of using cruisers to pick up Patrolmen coming on duty
was to stop thus is a topic about which the Town was obligated to bargain under
Section 965(1)(C). Since none of the exceptions to the rule prohibiting uni-
lateral changes is applicable, the Town committed a per se violation of Section
964(1)(E) by changing the practice without bargaining with Local 48.
The Town concedes that it made a unilateral change in the posting and bidding
procedure used for filling regular and overtime assignments. Prior to July 23.
1979, the Chief of Police assigned each Patrolman to shifts totalling 40 hours of
duty per week. All unassigned shifts and special events requiring police protec-
tion were then posted in the Police Department. Any Patrolman or part-time
officer who wished to work an unassigned shift or a special event then penned his
name in the appropriate slot for the shift or event.
The change in this procedure occurred when, for the weeks of July 23 - July
29 and July 30 - August 6, 1979, all shifts were assigned to the Patrolmen. This
increased each Patrolman's work week from 40 hours to 56 hours, required each
Patrolman to work 14 consecutive days, and also in effect eliminated the bidding
and posting procedure. It is well-settled that shift schedules are mandatory sub-
jects of bargaining. Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676,
691 (1965). Again, it is clear that none of the exceptions to the rule prohibit-
ing unilateral changes in hours and working conditions is applicable.
The Town argues, however, that "management prerogative" allowed it to change
the shift schedule without bargaining with Local 48. The answer to this argument
is found in State of Maine v. Maine Labor Relations Board, No. CV-78-484 at 7
(Kennebec County Super. Ct. Aug. 7, 1979): "No broad exception for 'managerial
decisions,' which would affect all municipal employees, is included in [the Act]."
It thus is clear that there is no "management prerogative" exception to the
duty to bargain contained in the Act. The Town was obligated to bargain over the
change in the shift schedule. Its failure to do so constitutes a per se viola-
tion of Section 964(1)(E).
2. The alleged violations of Section 964(1)(A). The Town's unilateral
changes in the Patrolmen's wages, hours and working conditions also violated
Section 964(1)(A):
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". . . interference, restraint, and coercion . . . does
not turn on the employer's motive or on whether the
coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of em-
ployee rights under the Act."
Cooper Thermometer Co., 154 N.L.R.B. 502, 503, n.2 (1965).
The Town's unilateral changes did reasonably tend to interfere with the free
exercise of the Patrolmen's organizational rights, guaranteed by Section 963 of
the Act. The Patrolmen could reasonably view the changes regarding the issuance
of paychecks and use of the cruiser, coming less than a month after the February 1,
1979 certification election, as retaliation for the exercise of the protected
right to select a bargaining agent. The same is true of the change in the shift
schedule which the Town enforced with threats to discharge any Patrolman who re-
fused to work the increased assignments. The "message" which the Town created
by making the unilateral changes reasonably tended to interfere with the Patrol-
men's organizational and bargaining rights.
Having concluded that the Town's unilateral changes violated Section 964(1)
(A) and (E), we will order remedies necessary to restore the status quo which
existed prior to the unlawful changes. Caribou School Department v. Caribou
Teachers Association, 402 A.2d 1279, 1284-1285 (Me. 1979).
ORDER
On the basis of the foregoing findings of fact and discussion, and by virtue
of and pursuant to the powers granted to the Maine Labor Relations Board by the
provisions of 26 M.R.S.A. 968, it is hereby ORDERED:
That the Town of Jay and its Town Manager Michael Houlihan,
and their representatives and agents,
1. Cease and desist from changing any aspect of
the Patrolmen's wages, hours, and working
conditions without first bargaining the
change with the Patrolmen's collective
bargaining agent.
2. Reinstitute immediately the practices of
a) allowing the Patrolmen to pick their
paychecks up on Wednesdays when the
Patrolmen request their checks on
Wednesday.
b) allowing the Patrolmen to pick up
the officer coming on duty with
the police cruisers.
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c) scheduling the Patrolmen for 40-hour
work weeks, with all unassigned shifts
and events being posted for bids by the
Patrolmen and the part-time officers.
Dated at Augusta, Maine this 26th day of December, 1979.
MAINE LABOR RELATIONS BOARD
/s/______________________________
Donald W. Webber
Alternate Chairman
/s/______________________________
Thacher E. Turner
Alternate Employer Representative
/s/______________________________
Harold S. Noddin
Alternate Employee Representative
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