STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 83-10
Issued: March 9, 1983
_____________________________________
)
AUBURN FIREFIGHTERS ASSOCIATION, )
LOCAL 797, INTERNATIONAL ASSOCIA- )
TION OF FIREFIGHTERS, AFL-CIO, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
CHARLES R. MORRISON and DENNIS )
LEMIEUX, City Manager and Assistant )
City Manager of the City of Auburn, )
Maine, and CITY OF AUBURN, )
)
Respondents. )
_____________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on October 25, 1982 by the Auburn Firefighters Association,
Local 797, IAFF (Local 797). The complaint alleges that the City Manager and
Assistant City Manager of the City of Auburn (City) violated 26 M.R.S.A.
Section 964(1)(A) and (E) by unilaterally changing working conditions, by
refusing to bargain about certain matters, and by interfering with the rights
of the firefighters guaranteed by 26 M.R.S.A. Section 963. The City filed an
answer to the complaint on November 15, 1982, denying that it had violated any
provision of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
Section 961, et seq. (Act).
A pre-hearing conference on the case was held on December 29, 1982,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on January 4, 1983 a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
The case was heard on January 5, 1983, Chairman Edward H. Keith presiding,
with Employer Representative Don R. Ziegenbein and Employee Representative
Harold S. Noddin. Local 797 was represented by Peter M. Garcia, Esq., and the
City by Assistant City Manager Dennis P. Lemieux. Full opportunity was given
to examine and cross-examine witnesses, introduce evidence, and make argument.
Both parties filed post-hearing briefs, which have been considered by the
Board.
-1-
JURISDICTION
Local 797 is the bargaining agent within the meaning of Section 968(5)(B)
of the Act for all members of the Auburn Fire Department except for the Chief,
Deputy Chiefs, and Civilian Dispatchers. The City Manager and Assistant City
Manager and the City of Auburn are all public employers as defined in Section
962(7). The jurisdiction of the Maine Labor Relations Board to hear this case
and render a decision and order lies in Section 968(5)(B).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1. In effect between the parties is a collective bargaining agreement
with a term of April 1, 1982 to March 31, 1983.
2. In a letter dated May 28, 1982, Dennis Lemieux, the Assistant City
Manager, told Thomas Moulin, President of Local 797, that the City suspected
that 7 to 10 individuals in the Fire Department were abusing sick leave. The
letter states that in June the City would begin verifying sick leave use by
telephone calls or home visits to determine whether the employee was actually
sick. On June 15 Moulin responded, stating that the creation of a new policy
regarding the verification of sick leave violated Article X of the collective
bargaining agreement and requesting that the City not call or visit any fire-
fighter out on sick leave. In a letter to Moulin dated July 12, Lemieux
stated that the City could institute reasonable rules and offered to meet with
Moulin to listen to his suggestions regarding the verification program.
3. In July, 1982 the City announced that it was instituting a program of
light duty work for those employees receiving Worker's Compensation benefits.
Local 797 took the position that unless the City negotiated about the program
and agreed to insert a clause providing for the program in the agreement, it
would not allow any firefighter to do light duty work. In a letter to Moulin
dated July 22, Lemieux stated that any employee who failed to report for light
duty work would be considered to be absent without leave and punished
accordingly. There is no provision in the collective bargaining agreement
dealing with light duty work, although the parties briefly discussed the issue
during a mediation session in 1981. At that time Lemieux
-2-
presented some language addressing light duty work, but both parties quickly
dropped the issue.
4. On August 9, 1982 Charles Morrison, the City Manager, requested that
negotiations begin for an agreement to succeed the contract due to expire on
March 31, 1983. Morrison's letter to Local 797 states that the City Council
had directed that he not present contracts containing retroactive salary
increases to the Council for their approval. Morrison testified that he did
not think that the City Council would consider any contract containing
retroactive clauses. Local 797 stated that it was ready to begin negotiations
in a letter to Morrison dated August 17th. As of the date of the hearing of
this case, the parties had not yet discussed the retroactivity issue during
negotiations.
5. On or about August 12, 1982, a friend of firefighter Norman Belanger's
called the Fire Department and said that Belanger could not come in for work
because he could not get out of bed due to his back injury. Belanger had
suffered an on-the-job back injury in 1979. The Fire Chief and Lemieux
attempted to verify the reoccurrence of the injury by phoning Belanger and
visiting his home on several occasions, but they were not able to locate him
for about two weeks. Lemieux accordingly withheld Belanger's paychecks for
August 24 and 31, stating that he would pay Belanger when he came in to
discuss his absence with City officials and if the insurance carrier
responsible for paying workers compensation benefits accepted Belanger's
injury claim. These two conditions were satisfied in September, 1982, and on
September 29th Lemieux forwarded the two paychecks to Belanger.
6. On August 24, 1982 the Fire Chief ordered Belanger to report for
light duty work, which consisted of filing and keeping records at the fire
prevention bureau.
DECISION
Local 797 alleges that the City violated 26 M.R.S.A. Section 964(1)(A)
and (E) by 1) unilaterally implementing the light duty work program, 2) uni-
laterally implementing the sick leave verification program, 3) withholding two
of Belanger's paychecks in August, 1982, and 4) refusing to bargain about the
issue of the retroactive application of the contract presently being nego-
tiated. We find that the City violated Sections 964(1)(A) and (E) by imple-
menting the light duty work program without first notifying and bargaining
with Local 797 about the program, and order remedies
-3-
necessary to effectuate the policies of the Act. All of Local 797's remaining
allegations will be dismissed.
I. The light duty work program. The City in July, 1982 announced that
it was instituting a light duty work program for firefighters who were
receiving Worker's Compensation benefits. Local 797 took the position that
the City should negotiate before implementing the program, but the City
insisted that it could institute the program without bargaining. The first
injured firefighter assigned to work under the program apparently was Belanger,
who was ordered to report for filing and record keeping duties in August, 1982.
Prior to the summer of 1982, firefighters out on Worker's Compensation were
not required to do light duty work.
The rule prohibiting unilateral changes by an employer in wages, hours
and working conditions is a basic tenet of labor relations. See, eg., Lane v.
Board of Directors of MSAD No. 8, 447 A.2d 806, 809-810 (Me. 1982); NLRB v.
Katz, 369 U.S. 736, 743, 82 S. Ct. 1107, 8 L.Ed.2d 230 (1962). The rationale
for the rule is that a unilateral change in a mandatory subject of bargaining
"is a circumvention of the duty to negotiate which frustrates the objectives
of [the duty] much as does a flat refusal" to bargain. NLRB v. Katz, 369 U.S.
at 743. Unilateral changes thus contravene the duty to bargain in violation
of Section 964(1)(E) and result in interfering with the exercise of bargaining
rights in violation of Section 964(1)(A).[fn]1 Lane v. Board of Directors of
MSAD No. 8, 447 A.2d at 810.
Here the light duty work program directly affected injured firefighters'
hours and working conditions, as firefighters who previously were not required
to work were required to report for light duty jobs. The issue of light duty
work therefore is a mandatory subject of bargaining. In addition, there is no
dispute about the fact that the City unilaterally implemented the program
without bargaining with Local 797. The City urges, however, that it was
required to institute the program by 39
_______________
1/ Section 964(1)(E) prohibits public employers from "[r]efusing to bargain
collectively with the bargaining agent of its employees as required by
section 965." Section 965 requires that public employers "negotiate in
good faith with respect to wages, hours, and working conditions."
Section 964(1)(A) prohibits public employers from "[i]nterfering with,
restraining or coercing employees in the exercise of rights guaranteed in
section 963." Section 963 guarantees the rights of public employees to
bargain and to be represented by bargaining agents of their own choice.
-4-
MRSA Section 66-A of the Worker's Compensation Act, which states in pertinent
part:
"When an employee has suffered a compensable injury which
disables him from performing his customary or most recent work,
his employer at the time of the injury shall transfer him to a
position which is suitable to his physical condition when such
position is available . . . ."
* * *
"The exercise of this authority shall not conflict with any
provisions of a collective bargaining agreement between the employer
and a labor organization which is the collective bargaining repre-
sentative of the unit of which the injured workman is a part, if
that agreement grants the injured employee greater rights than are
provided in this section."
We do not agree that Section 66-A required the City to implement the
program without first bargaining with Local 797. "[T]he mere fact that a
particular subject matter may be covered by legislation does not exclude it
from collective bargaining." Superintending School Committee of Bangor v.
Bangor Education Association, 433 A.2d 383, 386 (Me. 1981). It is only when
the legislation explicitly prohibits the employer from bargaining about the
subject that the subject is removed from the realm of bargaining:
" '[T]here is no reason why the mandatory provision [for collective
bargaining] should be limited, in any way, except in cases where
some other applicable statutory provision explicitly and definitively
prohibits the public employer from making an agreement as to a par-
ticular term or condition of employment.' "
State v. Maine Labor Relations Board, 413 A.2d 510, 516 (Me. 1980), quoting
Board of Education v. Associated Teachers of Huntington, 30 N.Y.2d 122, 129,
331 N.Y.S.2d 17, 23, 202 N.E.2d 109, 113 (1972). Section 66-A does not pro-
hibit employers from bargaining about light duty work programs, but instead
plainly contemplates, by stating that "[t]he exercise of this authority shall
not conflict with any provisions of a collective bargaining agreement," that
such programs are negotiable matters.
We also note that the collective bargaining agreement in effect between
the City and Local 797 apparently grants injured firefighters greater rights
than are provided in Section 66-A. Article XV(1) of the contract states in
part:
"Any firefighter who becomes incapacitated on account of any
injury or illness arising out of and in the course of his employment
shall continue to receive his full pay until such time as he is able
to resume his duties as a firefighter or becomes qualified for a dis-
ability pension, or becomes eligible to retire and receive a retirement
pension, whichever shall first occur."
-5-
By stating that an injured firefighter shall receive full pay "until such time
as he is able to resume his duties as a firefighters" Article XV(1) implies
that an injured firefighter shall not have to perform any duties at all.
Since the right not to work at all is a greater right than is provided by
Section 66-A, that Section by its own terms appears to be inoperable in this
case. We conclude that since Section 66-A does not prohibit the City from
bargaining about light duty work programs and since Section 66-A apparently is
not applicable in light of the contract language in any event, the City was
not authorized by that Section to implement the program unilaterally.
The City also contends that the management rights clause in the agreement
authorizes unilateral implementation of the program. That clause (Article II)
states:
"Except as otherwise provided in this Contract, the City shall
remain vested solely and exclusively with all of its common law and
its statutory rights and with all management and supervision of opera-
tions, and personnel including the right to hire, promote, suspend or
otherwise discipline firefighters under the City Charter and Ordinances."
We have held in many cases, consistent with the law under the National Labor
Relations Act, that waiver of the statutory right to bargain in a management
rights clause, zipper clause, or other waiver clause must be "clear and
unmistakable." See, e.g., State v. Maine State Employees Association, MLRB
No. 82-05 at 11 (Dec. 22, 1982); City of Bangor v. AFSCME, Council 74, 449
A.2d 1129, 1135 (Me. 1982); Latex Industries, Inc., 252 NLRB 855, 858 (1980).
During negotiations in 1981, the City proposed some contract language dealing
with light duty work, but then quickly dropped the issue, an action which
clearly undercuts the notion that the City reserved the right in the contract
to institute a light duty work program. We find nothing in the management
rights clause or in any other provision of the agreement which authorizes the
City to implement the program or which constitutes a clear and unmistakable
waiver by Local 797 of the right to bargain about the program.
Having found that neither Section 66-A nor the language of the contract
permitted the City to implement the program unilaterally, we conclude that
such unilateral implementation violated Section 964(1)(A) and (E). We will
order pursuant to Section 968(5)(C) of the Act that the City cease and desist
from implementing any light duty work program for the firefighters without
first notifying and bargaining with Local 797. Since a properly designed
remedial order "seeks a restoration of the situation, as nearly as possible,
to that which would have obtained"
-6-
but for the prohibited practice, Caribou School Dept. v. Caribou Teachers
Association, 402 A.2d 1279, 1284 (Me. 1979), we will also order that the City
immediately terminate the light duty work program until such time as it has
been negotiated with Local 797. These remedies are necessary to effectuate
the policies of the Act.
II. The sick leave verification program. Local 797 attacks the sick
leave verification program, announced by the City in May, 1982, on the same
grounds raised with regard to the light duty work program - that the program
constitutes a unilateral change in the firefighters' wages, hours and working
conditions. The new program attempts verification of sick leave use by
telephone calls or home visits by City officials to determine whether the
firefighter is actually sick. Sick leave verification policies and programs
are mandatory subjects of bargaining, see, e.g., M.S.A.D. No. 43 Board of
Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36, et al. at
20 (Aug. 24, 1979), and again there is no question but that the City
instituted the new program unilaterally.
The City argues that the telephone calls and home visits are authorized
by the sick leave provision (Article X) of the contract:
In any case, the Fire Chief, after consultation with the City
Manager may, in the exercise of his independent judgment, require
further authentication of a claim for sick leave including a doctor's
certificate as to the nature of the firefighter's disability and that
he is unable to work. The City and the firefighter shall jointly
select the doctor from whom the certificate is to be obtained. Any
expenses incurred in obtaining a doctor's certificate from a doctor
selected by the City shall be borne by the City. Pending receipt of
such authentication, the City may withhold further sick leave pay-
ments.
By stating that the Fire Chief may in the exercise of his independent judgment
"require further authentication of a claim for sick leave," Article X plainly
provides wide authority to the City to verify sick leave use. We believe that
such authority reasonably includes telephone calls and home visits, and find
that by agreeing to the broad language of Article X, Local 797 clearly waived
the right to bargain about the new sick leave verification program during the
term of the contract. We will dismiss Local 797's allegation that the City
violated Section 964(1)(A) and (E) by unilaterally implementing the sick leave
verification program.
III. Withholding the pay of Belanger. In August, 1982, a friend of
firefighter Norman Belanger's called the Fire Department and said that
Belanger could not get out of bed due to the reoccurrence of an on-the-job
back injury. The Fire Chief and
-7-
Dennis Lemieux, the Assistant City Manager, attempted to verify the reoccur-
rence of the injury by phoning Belanger and visiting his home on several
occasions, but they were unable to locate him for about two weeks. Lemieux
withheld Belanger's August 24 and 31 paychecks, stating that he would give
Belanger the checks when he came in to discuss his absence and if the workers
compensation carrier accepted his injury claim. These conditions were
satisfied and Lemieux turned the paychecks over to Belanger in September, 1982.
Local 797 alleges that the withholding of the paychecks until the workers'
compensation carrier accepted the claim constitutes an unlawful unilateral
change. The record does not support this allegation, however. Instead, the
record shows that the City was faced with a disciplinary problem brought on
when Belanger in essence disappeared for two weeks after stating through a
friend that he was confined to bed due to a back injury. The fact that the
City could not contact Belanger for two weeks when he allegedly could not get
out of bed was enough to give the City reasonable doubt as to the severity of
his injury, and certainly warranted the withholding of his pay for the weeks
he was absent, until such time as the injury could be verified. The City was
not obligated to pay an employee who failed to report for work or to maintain
contact with the Fire Chief under circumstances which suggested that the
employee might not really be injured. We conclude that the City acted
properly in withholding Belanger's pay under the circumstances of this case.
Local 797's allegation will be dismissed.
IV. The issue of retroactivity. In his August 9th letter to Local 797
requesting that negotiations for a successor contract begin, City Manager
Charles Morrison stated that the City Council had directed that he not present
contracts containing retroactive salary increases for their approval.
Morrison testified that he did not think that the City Council would consider
any contract containing retroactive clauses. The present contract expires on
March 31, 1983 and as of the date of the hearing of this case the parties had
not yet discussed the issue of retroactivity.
Local 797 charges that the City has engaged in an anticipatory refusal to
bargain about retroactivity of the terms of the successor contract. There is
no question that retroactivity of a contract directly affects wages, hours and
working conditions and therefore is a mandatory subject of bargaining. See,
e.g., Bergen Point Iron Works, 79 NLRB 1073, 1101 (1948); Wisconsin Department
of Administration v. Wisconsin Employment Relations Commission, 95 LRRM 3361,
3365 (Wisc. Cir. Ct. 1977). While Morrison's letter could be construed as
an anticipatory refusal to
-8-
bargain about retroactivity, we note that as of the time of the hearing of
this case the parties had not yet discussed the retroactive issue during
negotiations and therefore the City had not yet directly refused to bargain
about the issue. Since the City has not yet directly refused to negotiate
about retroactivity, we have decided to dismiss Local 797's allegation at the
present time in order to give the City an opportunity to reconsider its policy
in light of this decision. Any future refusal by the City to bargain about
the retroactivity of the terms of a contract or to execute a contract because
it contains a retroactive clause will be a flagrant violation of Section
964(1)(E) which will warrant imposition of the strongest remedies possible.
Dismissal of Local 797's charge is of course without prejudice, so that it may
file another charge in the event the City acts contrary to this decision.
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. Section 968(5), it is ORDERED:
1. That Charles R. Morrison and Dennis Lemieux, City Manager
and Assistant City Manager of the City of Auburn, and
the City of Auburn and its representatives and agents,
a) Cease and desist from implementing any light duty work
program for firefighters without first notifying and
bargaining with the firefighters' bargaining agent about
the program.
b) Take the affirmative action of immediately terminating
the present light duty work program until such time as
that program has been negotiated with the firefighters'
bargaining agent.
2. All of Local 797's remaining allegations are dismissed.
Dated at Augusta, Maine this 9th day of March, 1983.
-9-
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/__________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right, pursuant to 26 M.R.S.A. Section
968(5)(F), to seek a review by the Superior Court of this decision by filing
a complaint in accordance with Rule 80-B of the Rules of Civil Procedure
within 15 days after receipt of this decision.
-10-