STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-15
Issued: April 4, 1984
__________________________________
)
BANGOR FIRE FIGHTERS ASSOCIATION, )
LOCAL 1599, I.A.F.F., AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF BANGOR, )
)
Respondent. )
__________________________________)
The question presented in this prohibited practices case is
whether the City of Bangor (City) violated the duty to bargain
set forth in 26 M.R.S.A. 965(1)(1974) by ordering firefighters
on Workers' Compensation leave to report for light duty work at
the Fire Department. We find that ordering the employees to report
to work amounted to a unilateral change in the Department's light
duty work program in violation of the City's obligation to bargain,
and order remedies necessary to effectuate the policies of the
Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961,
et seg. (1974 & Supp. 1983).
The Bangor Fire Fighters Association, Local 1599, I.A.F.F.,
AFL-CIO (Union) filed its complaint pursuant to 26 M.R.S.A. 968
(5)(B)(Supp. 1983) on December 20, 1983, alleging that the City
violated 26 M.R.S.A. 964(1)(E)(1974) by ordering employees to
return to work without first notifying and bargaining with the
Union about this alleged change in practice. The City filed an
answer and affirmative defense on January 12, 1984, alleging that
its light duty work program was an ongoing practice and that it
accordingly was not obligated to notify or bargain with the Union
before ordering the employees to return to work.
A pre-hearing conference on the case was held on January 30,
1984 by Alternate Chairman Donald W. Webber. Alternate Chairman
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Webber issued on February 15, 1984 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 February 22, 1984, Alternate
Chairman Webber presiding, with Employer Representative Thacher E.
Turner and Employee Representative Harold S. Noddin. The Union was
represented by Stephen T. Hayes, Esq., and the City by Clare Hudson
Payne, Esq. Full opportunity was given to the parties to examine
and cross-examine witnesses, introduce evidence, and make argument.
The parties presented oral arguments at the conclusion of the hearing.
JURISDICTION
The Union is the "bargaining agent" within the meaning of 26
M.R.S.A. 968(5)(B)(Supp. 1983) for all uniformed employees and
dispatchers employed by the Bangor Fire Department except for the
Chief, Assistant Chiefs, and temporary employees. The City is a
"public employer" as defined in 26 M.R.S.A. 962(7)(Supp. 1983).
The jurisdiction of the Maine Labor Relations Board to hear this
case and render a decision and order lies in 26 M.R.S.A. 968(5)
(C)(1974).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. In letters dated July 5, 1983 Fire Chief Robert Burke
ordered firefighters William Leighton and John Hand to return to
work from Workers' Compensation leave. The letter to Leighton
stated:
"You are to report to work on July 15th at 08:00
to Station #3 at Bangor International Airport,
to work in your role as Lieutenant.
"You will be doing all functions of your rank
except all physical aspects of your job due
to your injury."
Hand's letter said: "You are to report to work July 15th at 8:00
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to Central Fire Station. A list of your duties are enclosed under
separate sheet." Attached to the letter was a list of duties under
the caption "Job Description - Light Duty." Leighton was on Workers'
Compensation leave due to a work-related injury to his head and
neck, while Hand was out due to a work-related back injury.
2. An informal light duty work program has existed in the
Fire Department for a number of years. According to Chief Burke,
the Department decides whether an employee who is on leave due to
illness or injury should come back to perform light duty work on a
case-by-case basis.. The determination is based on what the employee
can do and on what jobs are available. Typical light duty jobs
include driving vehicles, training employees, maintenance work,
and dispatching fire apparatus. The Department checks with the
employee and his doctor from time to time to see how the employee
is progressing. When the employee is capable of doing light duty
jobs the Department usually attempts to work out some duties for
him to perform. Sometimes employees who are out on sick leave or
Workers' Compensation request to be assigned to light duty work
because they are running out of sick leave or because they simply
want to get back to work. The Department tries to accommodate
such requests but might not take back an employee if no light duty
work is available. In most cases the Department and the employee
mutually agree upon the date upon which the employee returns to work.
3. An example of how the light duty work system usually works
is shown by the case of Larry Thies, a firefighter who suffered a
work-related ankle injury. In July 1983 Thies got a slip from his
doctor stating that he could return to work subject to certain
limitations. He took the slip to the Chief, who asked if Thies
would be comfortable working at Station 3. Thies performed light
duty work for over 2 months, returning to full duty in August 1983.
The Chief did not at any time order Thies to return to work.
Another example occurred in January 1983 when Leighton, the fire-
fighter who was ordered back to work in July 1983, was out with a
work-related injury. Leighton's doctor informed the Chief that
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Leighton could do light duty work and the Chief met with Leighton,
who wanted to come back to work. On January 24, the Chief stated
in pertinent part in a letter to Leighton: "I ask that you report
to duty on February 7, 1983 to the Inspection Department." Leighton
performed light duty work until he suffered a reoccurrence of his
injury. The record contains numerous other examples of employees
assigned to light duty schedules who wanted to come back to work or
who established a mutually satisfactory return-to-work date with
the Chief.
4. Assistant Fire Chief Alan Ingraham testified that between
the summer of 1967 and July 1983 at least 27 firefighters including
Leighton and Hand returned to work on light duty. Ingraham testified,
however, that only two employees in addition to Leighton and Hand
were ordered, as opposed to agreeing voluntarily, to return to light
duty work. These employees were H. Hartford, who was ordered to
report for light duty work in the summer of 1967, and L. Lee, who
was ordered to return in the summer of 1971. According to Ingraham,
it was necessary for the Department to order these two firefighters
to return to work because the Department was short of staff and
needed the injured employees to fill in.
5. Personnel Director John Perry testified that firefighter
Thomas Duran was ordered to report for light duty work in August
1980. The Fire Chief found out that Duran was working for someone
else while he was out on sick leave, so on August 21 the Chief told
Duran in a letter that he was off sick leave as of August 19 and 20
and stated: "You will be posted, which means you will bring in a
slip from your Doctor on any further sick leave, or not get paid."
Firefighter Joseph Peavey was also ordered to report for light duty
work in April 1982 after it was discovered that he was working for
the Air National Guard while out on leave with a work-related injury.
Former Union President Harold Russell testified that Peavey was
required to come in only on days when he felt able to work, however.
Chief Burke testified that he has been Chief since July 1982 and
that the only employees he has ordered to return for light duty
work have been Leighton and Hand.
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6. After Leighton and Hand were ordered to return to work,
the Union filed a grievance contending that the institution of the
light duty work program violated the collective bargaining agree-
ment between the City and the Union and requesting that the program
be dropped until such time as it had been negotiated. The Fire
Chief, the Personnel Director, and the City Council in turn denied
the grievance on the ground that the program had existed for many
years. The Union did not appeal the City Council's denial of the
grievance to an arbitrator as it was entitled to do pursuant to
Article 32 of the contract.
7. The Union's attorney also contacted the City's Personnel
Director and asked that the City negotiate about light duty before
making the alleged unilateral change regarding light duty work.
Personnel Director Perry said he would meet with the attorney to
discuss the program but not negotiate about implementation of the
program.
8. The parties' collective bargaining agreement expires on
June 30, 1984. No reference to light duty work is made in the
agreement or in the Fire Department's rules and regulations.
Negotiations for an agreement to succeed the present contract were
scheduled to begin on February 23, 1984. The Union plans to present
a light duty work proposal for negotiations, and the City agrees
that it is required to negotiate about such a proposal.
DECISION
The Union contends that the City unilaterally changed its
light duty work program in July 1983 by ordering firefighters
Leighton, Hand and Thies to report for light duty work.[fn1] We find
that while this case presents a close question, the City did make
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1 There is no evidence that Thies was ordered to report for
light duty work. Thies himself testified that he was never
ordered to return to work and that he in essence worked out a
satisfactory return-to-work date with the Fire Chief. The Union's
allegation that the City violated the Act by ordering Thies to
report for work is hereby dismissed.
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a unilateral change with regard to its treatment of Leighton and
Hand because in most previous cases the Fire Chief met with the
affected employee to determine a mutually satisfactory return-to-
work date, as opposed to ordering the employee to return as in the
cases of Leighton and Hand. We will order remedies necessary to
effectuate the policies of the Act.
We previously held that implementation of a light duty work
program without first notifying and bargaining with the bargaining
agent about the program constitutes a unilateral change in fire-
fighters' hours and working conditions in violation of Section
964(1)(E).[fn2] Auburn Firefighters Association v. Morrison, MLRB No.
83-10 at 4-7 (March 9, 1983). The basis for this holding is of
course the venerable principle of labor law that an employer's
unilateral change in a mandatory subject of bargaining "is a cir-
cumvention 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. 736, 743 (1962); see also, Lane v. Board of Directors of
MSAD No. 8, 447 A.2d 806, 809-810 (Me. 1982). These same rules
apply with equal force to any unilateral change in an existing
light duty work program which materially affects employee wages,
hours, or working conditions.
The City does not quarrel with these settled legal principles[fn3]
but instead urges that no change has occurred in its long-standing
light duty work program. The record shows clearly that the City
has employed a light duty work program for injured firefighters for
years. The question we must decide is whether the ordering of
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2 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(1) sets forth the elements of the duty to bargain
in good faith and provides that "wages, hours, working conditions
and contract grievance arbitration" are mandatory subjects of
bargaining.
3 Indeed, the City properly acknowledges that light duty work
is a mandatory subject of bargaining about which is must negotiate
during the next round of contract negotiations.
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Leighton and Hand to report for light duty work constitutes a
significant change in the way the program has operated.
We find that such a change has occurred. The record shows that
the decision whether an ill or injured employee can come back to
perform light duty work is made on a case-by-case basis, depending
on what the employee can do and on what jobs are available. The
Fire Department checks with the employee and his doctor from time
to time, and when the employee is able to do light duty work the
Department usually tries to find something for him to do. Sometimes
employees request to be assigned to light duty work and the Depart-
ment tries to accommodate such requests. In most cases the Depart-
ment and the employee mutually agree on the date upon which the
employee returns to work. Numerous examples of this system of
mutual accommodation appear in the record.
No evidence of any attempt by the Department to reach a mutually
agreeable return-to-work date with either Leighton or Hand appears
in the record, however. The evidence shows that the Chief simply
issued written orders directing the two employees to report to
work. This action was contrary to the way the light duty work
system worked in most previous cases and thus is a change in that
system. It is entirely true, as the City urges, that there have
been a few instances in which employees were ordered to report for
light duty work. Two examples of employees being ordered to return
to work are H. Hartford in the summer of 1967 and L. Lee in the
summer of 1971. According to Assistant Chief Ingraham, these
employees were ordered to report for light duty work because of
staff shortages. A third instance occurred in August 1980 when
the Chief discovered that Thomas Duran was working for someone else
while out on sick leave. The City also urges that firefighter
Joseph Peavey was ordered to report for light duty work in April
1982 after he was found to be working for the Air National Guard.
However, according to the uncontradicted testimony of former Union
President Harold Russell, Peavey was required to come to work only
on days when he felt able. We therefore view the Peavey incident as
a further example of the Department's usual effort to accommodate
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the employee.
In short, the City has shown that only 3 out of at least 25
cases (excluding the cases of Leighton and Hand) involved the
ordering of employees to report for light duty work. In our
opinion this showing is not sufficient to establish a past practice
of ordering employees to report for work. In addition, the record
does not show either a staff shortage or that Leighton or Hand was
working for another employer, which are the factual backdrops which
led to the ordering of the other 3 firefighters in to work. Indeed,
the record does not show why the Chief felt it necessary to order
Leighton and Hand to report for work; all the record indicates is
that the order was an arbitrary act on the part of the Department
which was contrary to the way in which the light duty work program
operated in the past.
We therefore find that the ordering of Leighton and Hand to
report for light duty work in July 1983 was a change in the light
duty work program. This change significantly affected the two
employees' hours and working conditions since "firefighters who
previously were not required to work were required to report for
light duty jobs." Auburn Firefighters Association at 4. The change
was a unilateral act by the City because the Personnel Director
refused the Union attorney's request to negotiate about the change.[fn4]
This unilateral change constitutes a refusal to bargain which violates
Section 964(1)(E). The City should have met with Leighton and Hand
to attempt to work out a mutually agreeable return-to-work date, or
should have notified the Union why it was necessary to order the two
employees to report to work before issuing the written orders.
We will order the City to cease and desist from making any
unilateral changes in its light duty work program without first
bargaining about such changes with the firefighters' bargaining
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4 No reference to light duty work appears in any article of the
parties' current collective bargaining agreement. It therefore
cannot be said that the Union waived the right to negotiate about
light duty work during the term of the agreement. See, e.g., Auburn
Firefighters Association at 6; City of Bangor v. Council 74, AFSCME,
449 A.2d 1129, 1135 (Me. 1982).
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agent. Since a properly designed remedial order "seeks a restora-
tion of the situation, as nearly as possible, to that which would
have obtained" 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 employ its light duty work program
as it has done in the past. This means that the Chief should meet
with any employee who is out on leave and try to establish a mutually
agreeable return-to-work date rather than ordering the employee to
report for work on a date set by the Chief, except that the Chief
may order employees to report for light duty work when the Depart-
ment is suffering a demonstrable staff shortage or when the employee
is found to be working for someone else while out on leave. This is
how the light duty work program has worked in the past, according
to the record before us. These remedies are necessary to effectuate
the policies of the past.
One final matter deserves comment. This is the City's contention
that this agency has "no jurisdiction" over this matter because the
Union did not pursue its grievance to arbitration. This claim is
meritless because the filing of a grievance pursuant to contract
and the filing of a prohibited practices complaint pursuant to the
Act are separate and independent causes of action which may be
pursued successively. See, e.g., Lewiston Firefighters Association
v. City of Lewiston, 354 A.2d 154, 168 (Me. 1976). Our jurisdiction
is established according to the standards set forth in the Act, and
hardly is contingent upon what a party has or has not done pursuant
to the contract. See, e.g.,Teamsters Local 48 v. City of Bangor,
MLRB No. 80-46 at 2 (Oct. 6, 1980). In particular, there is no
requirement that a party "exhaust" its contract remedies before
filing with this Board. Equally specious is the City's claim that
we should "defer to arbitration." Since the Union decided not to
take its grievance to arbitration, a decision which is entirely
within its discretion, there is nothing to which we can defer.
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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(5)(C)
(1974), it is ORDERED:
That the City of Bangor and its representatives and
agents,
1) cease and desist from making any change
in its light duty work program without
first notifying and bargaining with the
Union about the proposed change.
2) take the affirmative action of applying
the light duty work program as it has
been applied in the past, which means
that the Fire Chief should try to
establish mutually agreeable return-
to-work dates with employees who are
out on leave except that the Chief may
order employees to report for light
duty work when there is a demonstrable
staff shortage or when the employee is
working for someone else.
Dated at Augusta, Maine, this 3rd day of April, 1984.
MAINE LABOR RELATIONS BOARD
/s/___________________________
Donald W. Webber
The parties are advised of Alternate Chairman
their right pursuant to 26
M.R.S.A. 968(5)(F)(Supp.
1983) to seek review of this
decision and order by the /s/____________________________
Superior Court by filing a Thacher E. Turner
complaint in accordance Employer Representative
with Rule 80B of the Rules
of Civil Procedure within
15 days of the date of this
decision. /s/___________________________
Harold S. Noddin
Employee Representative
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