STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 03-11
Issued: August 6, 2003
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)
LOCAL 3771, IAFF, AFL-CIO-CLC, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF OGUNQUIT, )
)
Respondent. )
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This is a prohibited practice case, filed pursuant to 26
M.R.S.A. 968(5)(B) on February 25, 2003, by the Ogunquit Pro-
fessional Firefighters' Association, Local 3771, IAFF, AFL-CIO-
CLC ("Union") alleging that the Town of Ogunquit ("Town") vio-
lated 26 M.R.S.A. 964(1)(E) by unilaterally ceasing to provide
two personal days per calendar year to the firefighter/EMT's.
The Town filed a timely response on March 14, 2003, denying that
its actions constituted a violation of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. ch. 9-A.
A prehearing conference in the case was held on April 16,
2003, with Executive Director Marc P. Ayotte presiding.
On April 17, 2003, the executive director issued a Prehearing
Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
A hearing on the matter was held on June 13, 2003, Alternate
Chairman Pamela D. Chute presiding, with Alternate Employer
Representative Edwin S. Hamm and Alternate Employee Representa-
tive Robert L. Piccone. The Union was represented by Robert F.
Bourgault, Public Sector Labor Relations Specialist; and the
Town, by Scott J. Dunn, Town Manager. The Union presented the
following individuals as witnesses: Former Fire Chief Steven
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Howe and Union President Christopher Brassard. The Town
presented the following individuals as witnesses: Town Clerk
Judy Shaw-Kagiliery and Town Manager Dunn. The Board accorded
the parties a full opportunity to examine and cross-examine
witnesses and to introduce evidence. The parties waived the
opportunity to present either oral or written argument.
JURISDICTION
The Union is the bargaining agent for all full-time, paid
firefighter/EMT's employed by the Town of Ogunquit, within the
meaning of 26 M.R.S.A. 962(2). The Town is the public
employer, within the meaning of 26 M.R.S.A. 962(7). The
jurisdiction of the Maine Labor Relations Board ("Board") to hear
this case and to render a decision and order lies in 26 M.R.S.A.
968(5). All subsequent statutory references are to the MPELRL,
Title 26, M.R.S.A.
FINDINGS OF FACT
1. The Ogunquit Professional Firefighters Association, Local
3771, IAFF ("Union") is the recognized exclusive bargaining
agent, within the meaning of 26 M.R.S.A. 962(2), for all
full-time, paid firefighter/EMT's of the Town of Ogunquit.
2. The Town of Ogunquit ("Town") is a public employer, within
the meaning of 26 M.R.S.A. 962(7).
3. The bargaining unit was created by agreement of the parties.
The Town voluntarily recognized the Union as the exclusive
bargaining agent in 1997.
4. The parties have negotiated and ratified two collective
bargaining agreements ("CBA's"). The first CBA was ratified
on February 2, 1999, and was effective from January 1, 1998,
to December 31, 2000. The second CBA was ratified on
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November 6, 2001, and is effective from January 1, 2001, to
December 31, 2003.
5. By Personnel Rules adopted by the Ogunquit Board of
Selectmen (last revised in 1992), the Town firefighter/EMT's
were granted two personal days each calendar year. This was
in lieu of extra holiday time given to other Town employees
(one day off after Thanksgiving and one-half day off before
Christmas) that could not be taken by the firefighter/EMT's
due to the nature of their workweek.
6. The firefighter/EMT's received two personal days pursuant to
the Personnel Rules starting in about 1989, which was the
first year that the Town employed paid firefighter/EMT's.
7. The first CBA contained the following language regarding
personal days, in Article 15 (Holidays), Section (D):
Employees will receive two (2) personal days
during each fiscal year to be taken individ-
ually with the prior approval of the Fire
Chief. Vacancies created by personal days
may be filled by reserves at the discretion
of the Fire Chief.
8. During negotiations for the second CBA, neither the Union
nor the Town proposed any changes to Article 15 of the first
CBA. Neither party negotiated for or intended to change
that part of Article 15 which provided for two personal days
to the firefighter/EMT's.
9. During negotiations for the second CBA, both parties worked
from a copy of the first CBA "scanned" into a word
processing program. Various articles in the first CBA were
altered by negotiation. A final copy of the second CBA was
completely re-typed because the scanned document was messy
looking. It is unclear whether Town employees or Union
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staff typed the final copy of the second CBA that was
ratified by both parties.
10. Due to typographical error or other mistake, Article 15,
Section (D) was deleted entirely from the second CBA.
11. In reviewing the second CBA prior to ratification, both
parties focused on reviewing the articles in the second CBA
that were changed through negotiation. Neither the Town nor
the Union negotiators noticed the deleted section of Article
15 and they ratified the second CBA without the provision
relating to personal days.
12. During the term of the first CBA, the town clerk performed
personnel functions such as keeping track of vacation time,
sick time, and personal days, used by all town employees,
including the firefighter/EMT's. The town clerk was
generally familiar with the provisions of the first CBA,
which continued the previous practice of granting two
personal days per calendar year to the firefighter/EMT's.
13. After the second CBA was ratified, the town clerk was not
given a copy of this new CBA. The town clerk was not
advised by either party that the practice of granting
personal days to the firefighter/EMT's was to be altered or
stopped.
14. The fire chief who was a member of the negotiating team for
the Town for the second CBA was not aware that the provision
regarding personal days had been accidentally deleted.
After the second CBA was ratified on November 6, 2001, this
fire chief continued to grant personal days to firefighter/
EMT's as requested and the town clerk kept track of personal
days used. The personal days continued to be granted for
about one year after the second CBA was ratified.
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15. In June, 2002, both the fire chief and the town manager left
their respective positions. Several months later, the new
fire chief brought to the attention of the new town manager
that the second CBA did not contain a provision allowing for
personal days.
16. On December 4, 2002, the town manager issued a written
memorandum instructing the fire chief to cease the practice
of granting personal days to the firefighter/EMT's.
17. By letter dated December 6, 2002, the Union requested that
the Town rescind the memo and negotiate before implementing
the change in personal days.
18. On December 27, 2002, the town manager met with Union
officials but would not rescind the memo nor negotiate over
the change.
DECISION
The statutory duty to bargain requires that the employer and
the union negotiate in good faith with respect to the mandatory
subjects of bargaining--wages, hours, working conditions and
contract grievance arbitration. A corollary to the duty to
bargain is the well-established prohibition against public
employers making unilateral changes in the mandatory subjects of
bargaining. See, e.g., State of Maine (Bureau of Alcoholic
Beverages) v. Maine Labor Relations Board, 413 A.2d 510, 515 (Me.
1980); NLRB v. Katz, 369 U.S. 736, 743 (1962). "The essence of
this prohibition is that once a bargaining agent has begun to
represent a unit of employees, the employer may not make
unilateral changes in mandatory subjects of bargaining without
negotiating the changes with the bargaining agent." Teamsters
Local 48 v. Town of Jay, No. 80-02, slip op. at 3 (MLRB Dec. 26,
1979). The rationale for the prohibition is that unilateral
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changes in mandatory subjects "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.
The rule prohibiting unilateral changes applies not only to
the provisions of a collective bargaining agreement, but to
mandatory subjects on which the contract is silent, as well.
Lincoln Firefighters' Assn., Local 3038, IAFF v. Town of Lincoln,
No. 93-18, slip op. at 8 (MLRB Apr. 21, 1993); MSEA v. State of
Maine, No. 84-19, slip op. at 9 (MLRB July 23, 1984); Local 1601,
IAFF v. Rumford Board of Selectmen, No. 73-07, slip op at 29-30
(MLRB Aug. 30, 1973). Where the contract is silent, the Board
will look to the past practice of the parties. Lincoln Fire-
fighters' Assn., Local 3038, IAFF v. Town of Lincoln, slip op.
at 8.
The Board has established a three-pronged test for
determining whether an unlawful unilateral change has occurred:
In order to constitute a unlawful unilateral change, an
employer's action must: be unilateral, be a departure
from a well-established practice, and involve one or
more of the mandatory subjects of bargaining.
Monmouth School Bus Drivers & Custodians/Maintenance Assn./MTA/
NEA v. Monmouth School Committee, No. 91-09, slip op. at 55 (MLRB
Feb. 27, 1992). There is no dispute that each of these three
elements is present here. The Town made the unilateral decision
to discontinue giving personal days to the firefighter/EMT's when
the town manager issued the December 4, 2002, memo to the fire
chief advising him to immediately discontinue this benefit.
While the town manager later met with the union about this memo,
this was not a negotiation session, as the town manager made
clear that he believed that he was required to discontinue the
personal day benefit due to the absence of Article 15, Section
(D) in the second CBA (Tr. at 92, 101). This was a change from a
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well-established practice since the firefighter/EMT's had been
given these two personal days (in lieu of additional holiday time
given to Town employees with traditional "Monday to Friday" work
schedules) since at least 1989 when the Town first hired
firefighter/EMT's. This practice began in accordance with Town
Personnel Rules, then continued following the ratification of
both the first and the second CBA's. Finally, the providing of
personal days is clearly a mandatory subject of bargaining, as it
relates to wages and hours. State of Maine (Bureau of Alcoholic
Beverages) v. Maine Labor Relations Board, supra, at 514 (holiday
work); Malcolm Charles v. City of Waterville, No. 78-19, slip op.
at 6 (MLRB July 21, 1978) (vacation and sick leave).
The Town argues that, while the discontinuance of personal
days was a change, the Town was obligated to discontinue the
personal days by the absence of Article 15, Section (D) from the
second CBA. As the town manager stated in his December 4 memo
" . . . we are prohibited from taking away any benefits that are
prescribed in a binding agreement and conversely, we are also
prohibited from adding benefits that are not otherwise set
forth." (Ex. C-9).
In order to properly address the Town's argument, the Board
must interpret the meaning of the parties' second CBA--
specifically, the absence of Article 15, Section (D) from that
agreement. The Board has often been called upon to interpret
collective bargaining agreements in order to determine whether an
unfair labor practice has occurred. Bangor Firefighters'
Association, Local 772, IAFF v. City of Bangor, No. 93-20, slip
op. at 11-12 (MLRB Aug. 9, 1993); original Board decision aff'd
sub nom City of Bangor v. Maine Labor Relations Board, 658 A.2d 669
(Me. 1995) (health insurance article); State of Maine v.
Maine State Employees Association, 499 A.2d 1228, 1230 (Me. 1985)
(waiver clause); Auburn Firefighters Assn., Local 797, IAFF v.
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City of Auburn, No. 83-10, slip op at 5-6 (MLRB Mar. 9, 1983)
(work injury pay clause; management rights clause). The present
matter rests entirely, in fact, on a question of "pure" contract
interpretation. However, the Union has not filed a grievance in
this matter nor is there a pending grievance arbitration.
Neither party has requested that the Board defer the matter to
arbitration.[fn]1 Consequently, the Board must interpret the
contract provision in order to address the Town's defense.
As stated in the Findings of Fact, the Board finds that
Article 15, Section (D) was removed from the second CBA through
typographical error or other mutual mistake. This finding is
supported by virtually all of the evidence and testimony
presented at the hearing. The Union presented as witnesses both
the former fire chief (who was a negotiator for the Town for the
second CBA) and the Union president (who was a negotiator for the
Union for the second CBA). Both witnesses were in complete
agreement that neither party proposed that the benefit of
providing personal days or the article relating to personal days
be changed in any way. Nothing in Article 15 (which describes
both holidays and personal days) was the subject of negotiation.
All of the Union proposals and notes submitted into evidence
(Exhs. C-2 - C-7) supported this testimony, as Article 15 was not
mentioned in any of these documents. The present town manager
did not negotiate the second CBA, as this was ratified prior to
his hire. He could not provide first-hand testimony on the
negotiations. However, he presented nothing, by way of evidence
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1 The Union representative stated at the hearing that a grievance
arbitration was not pursued in this matter because the article relat-
ing to personal days was not contained in the second CBA; therefore,
an arbitrator would not be empowered to act within the "four corners"
of the agreement. (Tr. 29, 31) The Board will not normally defer to
arbitration, even if the matter is arbitrable, where the parties have
not made this request. See Teamsters v. City of Augusta, No. 93-28,
slip op. at 20 (MLRB Jan. 13, 1994) aff'd CV-94-38 & -49 Me.Super.Ct.,
Ken.Cty., May 10, 1994); Chap. 12, 10(6) of the Board Rules.
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or documents, that refuted the testimony of the former fire chief
or of the Union president.
In addition, the Town continued to provide the personal days
to the firefighters/EMT's for about one year after the second CBA
was ratified. The town clerk, who was in charge of payroll
issues such as this at the time, testified that she was not given
the second CBA after it was ratified. However, it would seem
likely that, if the Town had been successful in eliminating paid
personal days through negotiations, someone--such as the then-
town manager or fire chief--would have advised the town clerk
orally of this significant change. This is particularly so where
the Town had been providing personal days since 1989.
The manner is which the final copy of the second CBA was
produced also tended to support our finding that the article was
removed by mistake. The first CBA could not be located on a disc
or hard-drive of a computer; therefore the first CBA was
"scanned" in order to provide a working copy for negotiations of
the second CBA. Both parties, it appears, handled the typing of
their own proposals during the negotiations. None of the
witnesses seemed to know who typed the final copy of the second
CBA; however, both the former fire chief and the Union president
agreed that the parties reviewed only those articles in the
second CBA which had been changed during negotiations. This poor
proofreading undoubtedly led to neither party noticing the
absence of Article 15, Section (D) from the second CBA. The fact
that the entire section relating to personal days was deleted
from the second CBA also tended to support a finding of typo-
graphical error; if the section was changed by negotiation, it
would be more likely that the section would be replaced with new
or changed language.
Due to all of these facts, the Board finds that neither
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party intended to remove the article on personal days and that
both parties signed the second CBA believing that the personal
days article remained in the contract. There was no "meeting of
the minds" to remove this article from the second CBA and to
cease the practice of giving personal days to the firefighter/
EMT's. Cf. Frenchman's Bay Teachers Assn. v. School Union No.
96, No. 96-12, slip op. at 10-12 (MLRB Feb. 9, 1998) (no meeting
of minds on longevity benefit, therefore chief negotiator was not
required to present the final tentative agreement to the school
board for ratification); Sanford Firefighters Assn., Local 1624,
IAFF v. Town of Sanford, No. 83-07, slip op. at 5 (MLRB Dec. 3,
1982) (no meeting of the minds on how longevity pay to be paid,
therefore Town did not refuse to reduce agreement to writing).
Therefore, the Town here cannot claim as a defense to its
unilateral action that its conduct was in accord with the terms
of the second CBA, nor that the Union negotiated away this
benefit in the contract.
The Board wishes to emphasize here that it is no way imputes
bad faith to the present town manager by his decision (with the
approval of the selectmen) to end the providing of personal days,
or even to the former town manager who negotiated the second
CBA.[fn]2 The Board has long found that an unlawful unilateral
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2 The present town manager testified that he did not know how the
personal days article came to be removed from the second CBA. He
further testified that if the personal days article was removed due to
some bad faith or bad conduct on the part of the former town manager,
he (the present town manager) was still obligated to strictly comply
with the language of the second CBA and deny the personal days. (Tr.
100) If the present town manager believed that the article was removed
due to bad faith, this should have given him additional cause to
decide to continue (not end) the personal day benefit. If the Union
here alleged bad faith on the part of the Town (which it did not) and
established this bad faith, this would give rise to a separate
violation of the MPELRL, in addition to the finding of unilateral
change violation.
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change is a per se violation of the duty to bargain, without
regard to motivation. Teamsters Local Union No. 48 v. Bucksport
School Department, No. 81-18, slip op. at 5 (MLRB Dec. 22, 1980),
citing NLRB v. Katz, supra. The town manager believed it was his
right and responsibility to comply with the second CBA. However,
a CBA is not merely a contract, and the Board has declined in the
past to interpret a CBA based only on narrow contract principles:
A collective bargaining agreement is not an
ordinary contract for the purchase of good
and services, nor is it governed by the same
old common-law concepts which control such
private contracts. . . . In order to
interpret such an agreement it is necessary
to consider the scope of other related
collective bargaining agreements, as well as
the practice, usage and custom pertaining to
all such agreements.
Transportation-Communications Employees Union v. Union
Pacific Railroad Co., 385 U.S. 157, 160-161, 87 S.Ct.
369, 371, 17 L.Ed.2d 264 (1966); reh'g denied 385 U.S.
1032, 87 S.Ct. 737, 17 L.Ed.2d 680 (1967). . . .
Limiting our examination to the terms of the collective
bargaining agreement would result in our ignoring a
practice which has characterized the particular
employment relation-ship for a number of years and
would result in less rather than greater stability in
that relationship.
Paul Coulombe and South Portland Professional Firefighters, Local
1476, IAFF v. City of South Portland, No. 86-11, slip op. at 18-
19, n. 1 (MLRB Dec. 29, 1986). By reviewing the collective
bargaining relationship (including the first CBA, and past
practice), the town manager could have come to the same clear
conclusion as the Board has--that the parties did not negotiate
about eliminating or changing the personal days and that the
parties did not intend to remove the personal days article from
the second CBA.
For these reasons, the Board finds that the employer
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violated 26 M.R.S.A. 964(1)(E) when it made the unilateral
decision to discontinue the providing of personal days to the
firefighter/EMT's.
In crafting a remedy in cases involving unilateral change,
the Board frequently requires the employer to return to the
status quo ante prior to the unilateral change, and to negotiate
any proposed change with the union. In Teamsters Local Union
No. 48 v. Bucksport School Department, No. 81-18 (MLRB Dec. 22,
1980), for instance, the Board found that the employer committed
a per se violation of 964(1)(E) when it unilaterally changed
the practice of allowing the school bus drivers to take the buses
home at night. The Board ordered that the employer reinstate the
practice within five days of the Decision and Order, or to pay
the bus drivers mileage for using their personal vehicles to
travel to and from work, and to continue this practice until the
issue of the use of buses was resolved through negotiations with
the union. However, the Board has also found that restoring the
status quo ante alone is a proper remedy, depending on the facts
of the case. See, e.g.,Bangor Firefighters' Association, IAFF v.
City of Bangor, No. 93-20 (MLRB Aug. 9, 1993) (ordering city to
reimburse firefighters for any additional expenditures for health
insurance coverage, with interest); Lincoln Firefighters' Assn.,
IAFF v. Town of Lincoln, No. 93-18 (MLRB Apr. 12, 1993) (ordering
town to reinstate contribution to deferred compensation plan, and
to make employees whole for decreased contribution, plus lost
investment earnings). The Board's goal is always to design a
remedial order that seeks "a restoration of the situation, as
nearly as possible, to that which would have obtained" but for
the unfair labor practice. Caribou School Department v. Caribou
Teachers' Association and MLRB, 402 A.2d 1279, 1284 (Me. 1979),
citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
In the present case, restoring the status quo ante (only) is
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the most sensible outcome. This is particularly true because the
Board is so clear in its finding and conclusion that the personal
days article was not negotiated away by the parties and that it
was mistakenly deleted from the second CBA. To order the parties
to negotiate over the change at this point would fly in the face
of the fact that the parties have already negotiated about the
personal days for the duration of this CBA, by failing to
negotiate any change in this provision. The parties are, of
course, free to negotiate about this benefit when they negotiate
the next CBA, to be effective January 1, 2004.
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 26 M.R.S.A. 968(5), it is
hereby ORDERED:
That the Town of Ogunquit and its representatives and
agents:
1. Cease and desist from unilaterally changing the
provision of two paid personal days per year to the
firefighter/EMT's for the remainder of the term of the
present collective bargaining agreement (and post-
expiration, as well, until the parties reach a successor
agreement).
2. Take the following affirmative actions that are
necessary to effectuate the policies of the MPELRL:
restore the status quo ante in this matter by again
providing two personal days per year for each
firefighter/EMT from December 4, 2002, through the
remainder of the term of the present collective
bargaining agreement (and post-expiration, as well,
until the parties reach a successor agreement).
Because the Town ended the practice of providing the
personal days on December 4, 2002, this may require
the providing of additional personal days to any
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firefighter/EMT who was prevented from taking both of
his or her personal days in the 2002 calendar year.
Dated at Augusta, Maine, this 6th day of August, 2003.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26
M.R.S.A. 968(5))(F) (Supp. /s/___________________________
2002) to seek a review of this Pamela D. Chute
decision and order by the Chair
Superior Court. To initiate
such a review, an appealing
party must file a complaint
with the Superior Court within /s/___________________________
fifteen (15) days of the date Edwin S. Hamm
of issuance of this decision Employer Representative
and order, and otherwise
comply with the requirements
of Rule 80(C) of the Rules of
Civil Procedure. /s/___________________________
Robert L. Piccone
Employee Representative
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