STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 05-03
Issued: March 22, 2005
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)
LOCAL 2303, IAFF, AFL-CIO-CLC, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF GARDINER, )
)
Respondent. )
____________________________________)
This is a prohibited practice case, filed pursuant to
26 M.R.S.A. 968(5)(B) on July 14, 2004, by Robert F. Bourgault,
Association Representative, on behalf of Local 2303, IAFF, AFL-
CIO-CLC ("Association" or "complainant"), alleging that the City
of Gardiner ("City" or "respondent") violated 26 M.R.S.A.
964(1)(E) and 965 by unilaterally changing the employees'
terms and conditions of employment and refusing to negotiate
those changes. The City filed a timely response on August 4,
2004, through its representative, David A. Barrett, Manager of
Personnel Services and Labor Relations at Maine Municipal
Association, denying that its actions constituted a violation of
the Municipal Public Employees Labor Relations Law ("MPELRL"),
26 M.R.S.A. ch. 9-A.
The party representatives met with the Executive Director on
November 10, 2004, and agreed that an evidentiary hearing was not
necessary in this matter, and that the Board could deliberate
based upon a record consisting of the fact stipulations and
exhibits, and upon the written arguments of the parties.
The complainant submitted three exhibits for the Board's
consideration: Exh. C-1, April 6, 2004, memo from Fire Chief
Kimball; Exh. C-2, undated letter from Richard Sieburg, President
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of Local 2303, to Fire Chief Kimball; and Exh. C-3, April 12,
2004, letter from Robert Bourgault to City Manager Jeffrey
Kobruck. The respondent did not object to the admission of these
exhibits. Both the complainant and the respondent submitted
written briefs; the complainant submitted a reply brief. The
briefing was completed on December 15, 2004. The Board met to
deliberate the case on January 7, 2005.
JURISDICTION
The Association is the bargaining agent, within the meaning
of 26 M.R.S.A. 962(2), of the uniformed members of the Gardiner
Fire Department, except the Fire Chief. The City is the public
employer, within the meaning of 26 M.R.S.A. 962(7). The
jurisdiction of the 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.
STIPULATIONS
The parties stipulated to the following on November 10,
2004:
1. Local 2303 of the International Association of
Firefighters, AFL-CIO-CLC (hereinafter referred to as "Union"),
is the bargaining agent within the meaning of 26 M.R.S.A.
962(2) for a bargaining unit composed of the uniformed members
of the Gardiner Fire Department (Firefighters/EMT's and the
Assistant to the Chief) except the Fire Chief.
2. The City of Gardiner ("City") is the public employer
within the meaning of 26 M.R.S.A. 962(7) of the employees whose
classifications comprise the bargaining unit mentioned in
paragraph 1.
3. The City and the Union have entered into successive
comprehensive collective bargaining agreements covering employer-
employee relations for the bargaining unit mentioned in paragraph
1 for many years. The parties' 2002-2005 collective bargaining
agreement is attached hereto, made a part hereof, and designated
as Joint Exhibit A.
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4. On or about April 12, 2004, Fire Chief Mark Kimball
promulgated a new Policy and Procedure, designated as P&P No.
3.12, that changed the rescue call back procedure. The policy
changed a practice that had been in place for at least 18 years.
The Policy created a new Code call out, Code 22, indicating that
the City only needed two off-duty personnel to respond.
Emergency calls needing more than two off-duty firefighters would
be toned out as a general call for all personnel.
5. Prior to issuance of P&P 3.12, the rescue call back
applied to all unit employees who responded.
6. The only provision in the parties 2002-2005 collective
bargaining agreement relating to call back procedures is Article
9, 5 which states:
In the event that an employee covered by this
Agreement is recalled to duty because of any emergency,
the employee shall be paid the overtime rate for actual
time worked, but not less than the pay for (2) hours
overtime.
7. In a letter from Robert F. Bourgault to City Manager
Jeff Kobrock dated April 12, 2004, the Union objected to the
unilateral change and requested that the policy be either
rescinded or held in abeyance and that the parties meet to
discuss the change in working conditions. A copy of the letter
is attached hereto, made a part hereof, and designated as Joint
Exhibit B.
8. The City Manager has not responded to the letter from
the Union.
8.5. Employees responding to emergency rescue calls are
being compensated in accordance with terms and conditions in the
current collective bargaining agreement.
9. The City of Gardiner has contracts with other
communities to provide those municipalities with ambulance/rescue
services. Such municipalities include: Pittston, Farmingdale,
West Gardiner, Litchfield, Dresden, Richmond and Randolph. The
City of Gardiner also provides back-up to Delta Ambulance for
servicing the Town of Whitefield.
10. The City of Gardiner has "mutual aid agreements" with
other communities and has requested assistance from them
approximately fifty-four times in calendar year 2004 to date,
with the City of Augusta responding thirty-seven times.
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DECISION
The statutory duty to bargain embodied in 965(1) requires
that the employer and the bargaining agent negotiate in good
faith with respect to the mandatory subjects of bargaining--
wages, hours, working conditions and contract grievance arbitra-
tion. The duty to bargain continues throughout the life of the
collective bargaining relationship between the employer and the
bargaining agent, provided that the parties have not otherwise
agreed in a prior written contract. Council 74, AFSCME v.
Ellsworth School Committee, No. 81-41, at 7 (MLRB July 23, 1981).
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
(Bur. of Alcoh. Bev.) v. MLRB, 413 A.2d 510, 515; 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 Union No. 48 v. Town
of Jay, No. 80-02, at 3 (MLRB Dec. 26, 1979). The rationale for
the prohibition is that unilateral 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. An employer's action is uni-
lateral if it is taken without prior notice to the bargaining
agent of the employees involved in order to afford said agent a
reasonable opportunity to demand negotiations on the contemplated
change. City of Bangor v. AFSCME, Council 74, 449 A.2d 1129,
1135 (Me. 1982).
In order to constitute a violation of 964(1)(E), three
elements must be present. The public employer's action must:
(1) be unilateral, (2) be a change from a well-established
practice, and (3) involve one or more of the mandatory subjects
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of bargaining. Bangor Firefighters Ass'n v. City of Bangor, No.
84-15, at 8 (MLRB Apr. 4, 1984). The City here conceded that the
new rescue call-back policy was a unilateral change and that it
was a change in a well-established practice of the City (City's
brief, at 3). The City argues, however, that it was not required
to negotiate with the Association about the new call-back policy
for two reasons. First, the City argues that terms in the
current collective bargaining agreement ("CBA") allow the City to
alter the policy without negotiation. Second, the City argues
that the call-back policy was not a mandatory subject of bar-
gaining, and that the City was therefore allowed to unilaterally
alter the policy without negotiation. We will address both of
these arguments, in turn, below.
Where, as here, a collective bargaining agreement is in
effect between the parties, the obligation to bargain continues
in the following circumstances:
If, as in the instant case, there is a collective
bargaining agreement in effect which does not contain a
so-called "zipper clause," the obligation to bargain
continues with respect to new issues which arise during
the course of the administration of the collective
bargaining agreement when those new issues are neither
contained in the terms of the contract nor negotiated
away during bargaining for that contract or a successor
agreement.
East Millinocket Teachers Ass'n v. East Millinocket School
Committee, No. 79-24, at 4-5 (MLRB Apr. 9, 1979). The City
relies on the following CBA articles in support of its argument
that it has already bargained the terms of the call-back policy:
Article 9 (Hours of Work), Section 5; and Article 13 (Management
Rights/Employee Rights), Section 1. Article 9, Section 5 of the
CBA is the only provision that specifically refers to call-back
or recall to duty. It provides:
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In the event that an employee covered by this agreement
is recalled to duty because of any emergency, the
employee shall be paid the overtime rate for the actual
time worked, but not less than the pay for (2) hours
overtime.
Article 13, Section 1 provides, in relevant part:
The City retains all rights and authority to manage and
direct its employees and to determine work shift
assignments, except as otherwise specifically provided
in this agreement. The City may adopt rules and
regulations for the operation of the department and the
conduct of its employees provided such rules do not
conflict with any provision of this agreement.
Article 9, Section 5 relates to the manner in which employees who
are recalled to duty are paid (overtime for the number of hours
actually worked, but not less than two hours' overtime). It is
clear that this section relates only to payment for recall, as
the parties agree that this section continues to be applied to
the new call-back system. This section does not describe or
memorialize, however, the system or policy used in recalling
employees to work; it does not contain the terms of any call-back
system negotiated and agreed to by the parties that would obviate
the need to negotiate about a mid-term change to that system, or
that would allow the City to change the system on a unilateral
basis. Further, the language at the beginning of the section
("In the event that an employee covered by this agreement is
recalled . . .") does not constitute a waiver on the Associa-
tion's part of its right to demand mid-term bargaining about a
unilateral change in a policy that had been long in place at the
time this CBA was negotiated.
We reach the same conclusion about the effect of Article 13,
Section 1 which contains, in part, a general "management rights"
clause. A party may waive its right to demand negotiations
during the term of a collective bargaining agreement over
unilateral changes by agreeing to a "zipper clause" or similar
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clause which covers such changes. It is well established that
for such a waiver to be effective as a bar to negotiations, the
evidence of waiver must be clear and unmistakable. Council No.
74, AFSCME v. City of Bangor, No. 80-41, at 9-10 (MLRB Sept. 24,
1980), aff'd, 449 A.2d 1129 (ME. 1982). The Law Court has found,
for instance, that a broadly worded zipper clause can have the
effect of waiving the right to compel any mid-term bargaining,
even impact bargaining. State of Maine v. MSEA, 499 A.2d 1228,
1230 (Me. 1985). In that case, the zipper clause that the Court
found to be an effective waiver stated, in part:
Each party agrees that it shall not attempt to compel
negotiations during the term of this Agreement on
matters that could have been raised during the
negotiations that preceded this Agreement, matters that
were raised during the negotiations that preceded this
Agreement or matters that are specifically addressed in
the Agreement.
See also Bureau of Employee Relations v. AFSCME, Council 93, 614
A.2d 74 (Me. 1992) (interpreting a similar zipper clause to waive
the duty to bargain about changes to the payroll schedule).
In contrast, the Board has not found a general management
rights clause to be an effective waiver. For instance, in MSAD
No. 54 Education Ass'n v. MSAD No. 54, No. 86-12 (MLRB Oct. 8,
1986), the Board considered whether the following CBA articles
constituted a waiver of the statutory duty to bargain:
The Association recognizes that except as specifically
amended by the terms of this Agreement, the [school]
Board retains all functions, powers and duties or
authority vested in it by the applicable laws of the
State of Maine or other governmental agency.
During the effective dates of this Agreement, anything
not covered in said agreement shall be reserved as a
management right and privilege.
The Board found that these provisions did not generally address
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the duty to bargain mid-term, or specifically address the duty to
bargain mid-term over the matter at issue (change in teacher
smoking policy), and so did not constitute a waiver of the duty
to bargain a change in that policy. In Auburn Firefighters Ass'n
v. City of Auburn, No. 83-10 (MLRB March 9, 1983), the Board
found that a clause which provided that the employer remained
vested ". . . solely and exclusively with all of its common law
and its statutory rights and with all management and supervision
or operations, and personnel . . ." did not authorize the
employer to implement a new light duty work program and did not
constitute a waiver by the union to compel bargaining about the
program before it was implemented. Here, the management rights
clause in Article 13 is likewise not specific enough to allow the
City to institute the new call-back policy, nor does it contain
any "clear and unmistakable" waiver of the Association's right to
bargain about the new policy. In summary, the Board does not
conclude that the language of the CBA itself allowed the City to
alter the policy without negotiation.
This finding does not end the matter, however, as the City
also argues that it was not required to bargain about the new
call-back policy because it was not a mandatory subject of
bargaining. In order for the Board to find that the employer
committed an unlawful unilateral change, the Board must find that
the call-back policy involved a mandatory subject of bargaining,
that is, a matter that is significantly related to wages, hours,
or working conditions. City of Bangor v. AFSCME, Council 74,
supra, 449 A.2d 1129, at 1135. The City argues that its decision
to create the new call-back policy is akin to "minimum manning"
proposals that the Board has not found to be mandatory subjects
of bargaining in past decisions. In Portland Firefighters Ass'n,
Local 740 v. City of Portland, No. 83-01 (MLRB June 24, 1983),
aff'd, 478 A.2d 297 (Me. 1984), the Board considered whether
union proposals to set minimum manpower assignments either per
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shift, per station or per truck were mandatory subjects of
bargaining. The Board found that the union did not show that
these proposals were related to firefighter safety or workload
(i.e., working conditions), and therefore were not mandatory
subjects. The Board contrasted these types of "minimum manning"
proposals with proposals related to the way that firefighters
were deployed or assigned to tasks at a scene (laying hoses,
putting up ladders, ventilating roofs, and the like), finding
that these latter proposals would be directly related to
safety/workload and would involve the mandatory subjects of
bargaining.[fn]1 Portland Firefighters, at 5. The Law Court
affirmed the Board's decision, upholding the Board's finding that
a proposal requiring a minimum number of firefighters per shift,
per station or per truck was not equivalent to assigning a
minimum number of firefighters to a particular task at the scene
of a fire. Portland Firefighters v. City of Portland, 478 A.2d
297, at 298. In City of Bangor v. Bangor Firefighters Ass'n,
No. 83-06 (MLRB Aug. 2, 1983), the Board reached a similar
conclusion, finding that a bargaining proposal to set a minimum
number of firefighters to be aboard each unit of firefighting
apparatus responding to a first alarm was not a mandatory subject
of bargaining. In addition to adopting the reasoning of Portland
Firefighters, the Board cited the following additional
consideration as supporting its conclusion:
A community's overall level of fire fighting protection
is a political decision, to be made by the
municipality's elected officials. Should the municipal
officers, in response to a perceived demand from their
constituents to keep the municipal tax rates low,
decide to provide minimal fire fighting protection,
said decision is not subject to collective bargaining.
The level of fire fighting protection is directly
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1 The Board suggested, for instance, that work rules and
procedures related to specific tasks, directly related to safety and
workload, would be mandatory subjects of bargaining.
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related to the number of fire fighters available at the
scene to fight fires. . . . If the number of fire
fighters at the scene of a fire is inadequate, those
present should not be expected to perform the same work
which should, within reasonable safety and workload, be
done by a larger number of fire fighters.
City of Bangor, supra, No. 83-06, at 9. See also Auburn
Firefighters Ass'n v. City of Auburn, No. 89-01 (MLRB March 31,
1989) (absent a proven safety nexus, the increase of one
firefighter on the fireground which resulted from the employer's
unilateral imposition of a new work order is not mandatorily
negotiable).
In determining whether the call-back policy here is like the
"minimum manning" cases described above, the Board views the
policy as having two parts. First, the policy allows the Fire
Chief to determine when only two off-duty firefighters are needed
in an emergency call-back situation. If this level of personnel
is needed, the new "Code 22" policy will be utilized. If more
firefighters than two are needed, then the old "general call"
will be utilized, and all who wish to respond may do so. Second,
the policy provides for the manner in which the two off-duty
firefighters are selected for the call-back--the first two
firefighters who call into the station will be awarded the
overtime. The Board finds that the part of the new policy which
allows the Fire Chief to determine when only two off-duty
firefighters are needed for a call-back is, at essence, a
decision about "minimum manning" and therefore controlled by the
precedent described above. In Portland Firefighters and the
other minimum manning cases, the union sought to negotiate about
the minimum number of personnel needed to work at the station, on
a truck, and the like, even though the union did not show a
connection between the manning proposal and safety or workload.
Here, the Association is demanding something similar--it seeks to
negotiate about the number of off-duty firefighters that may be
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needed on a call-back to the station or a scene.[fn]2 The
Association makes no argument that there is any connection
between safety, workload, or other working conditions and the
number of firefighters that the City chooses to seek on a call-
back. The Board therefore concludes that the part of the policy
which relates to the number of firefighters needed for a call-
back is not a mandatory subject of bargaining.
The Association attempted to distinguish the minimum manning
cases by suggesting that the issue here is not really manning
since the old general call-back policy did not require the City
to accept any particular level of manning for a call-back. As an
example, if the City sent out a general call for off-duty
firefighters and seven elected to respond to the call and the
City did not actually need seven, the excess number of fire-
fighters could be sent home. The City would only be required to
pay all firefighters sent home the minimum two hours' overtime
required by the CBA. The Board does not see this as a
distinction with a difference. This matter may be, in fact,
"only" about money. The City wishes to be able to control its
overtime costs by deciding that some situations only need two
off-duty firefighters to respond; the Association wishes to be
able to preserve the opportunity to get overtime pay (at least
two hours) for those firefighters who wish to respond to the
call. The fact that it is about money does not make the call-
back policy a mandatory subject of bargaining, however. The
Portland Firefighters and similar cases were also about money in
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2 It is not clear from the record where the two off-duty fire-
fighters called in under the new policy are to report--to a scene, or
to the station. The stipulations describe these as "emergency" rescue
calls, which implies that the firefighters are called to a scene. In
its brief, however, the City emphasized that the policy is used for
station coverage when on-duty firefighters have been called away from
the station. In either case, we find that the Association cannot
demand negotiations about the number of personnel needed--at the
scene, or at the station--in accordance with Portland Firefighters,
et al.
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that cities in those cases would not bargain about minimum
personnel levels, an issue with obvious budgetary implications.
The Board nevertheless found that these personnel levels were not
significantly related to wages, hours and working conditions, and
therefore not a mandatory subject of bargaining.
The Board recognizes that the City's unilateral institution
of the new call-back policy may result in there being occasions
when certain unit members will not have the opportunity to earn
some overtime wages that they formerly would have been allowed to
earn. A loss of some potential overtime wages is possible for
some members, although this is a matter of speculation.[fn]3
However, the Board has been unable to find--and the Association
has not cited--any case which establishes that the amount of
overtime that an employer offers to employees is itself a
mandatory subject of bargaining. The Portland Firefighters and
other minimum manning cases, while not about overtime per se,
suggest the opposite. In Teamsters Local Union No. 48 v.
Lewiston-Auburn Water Pollution Authority, Nos. 79-65 & 80-07
(MLRB July 29, 1980), the Board considered the proper monetary
relief to be given to an employee who was discriminated against
due to protected activities, including the denial of some
overtime opportunities. While the Board ordered the employer to
pay an amount equal to a rough estimate of the overtime lost, it
also suggested:
. . . [T]he amount of overtime available is a matter
that is generally an exclusive employer decision that
may be based on any number of factors not necessarily
relating to working conditions or other bargaining
subjects. The public employer cannot be required to
provide overtime indefinitely simply because it has
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3 Whether any firefighter is actually deprived of the opportunity
to earn overtime wages is dependent on many factors---how often the
new policy is utilized, how often the old policy is still utilized,
how often firefighters responded to general calls in the past, etc.--
which are not before the Board on this stipulated record.
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provided such in the past.
Teamsters, supra, at 13. Likewise here, the fact that the City
wishes to limit the amount of overtime opportunities under some
circumstances, which may (or may not) affect the overtime
earnings of some unit members, does not make this policy one that
significantly affects wages, hours, or working conditions.
This is not to suggest that some aspects of overtime are not
mandatory subjects of bargaining. It is for this reason that the
Board considers the City's new call-back policy to have two
parts, the second being the manner in which the overtime is
allocated. There is Board precedent supporting a finding that
the manner in which overtime is offered significantly affects the
working conditions and thus is a mandatory subject. In Thomas
Blake and South Portland Professional Firefighters Ass'n v. City
of South Portland, No. 94-12 (MLRB June 2, 1994), for instance,
the Board considered whether the City made an unlawful unilateral
change when it altered the method of filling fire station
vacancies, a change which resulted in officers (members of a
separate bargaining unit) receiving increased opportunities for
this overtime work and in firefighters receiving decreased
opportunities. The Board found that the City committed a
unilateral change in a mandatory subject--not by changing the
amount of overtime available, but by changing the process for
determining which station was undermanned and thus who (officer
or fire-fighter) would get the overtime. In Teamsters Local
Union No. 48 v. Town of Fort Fairfield, No. 86-01 (MLRB Jan. 24,
1986), the Board found that the union established all the
elements necessary to prove an unlawful unilateral change when
the Police Chief altered the past practice of offering a
regularly occurring overtime shift opportunity to the police
officer who worked the regular shift prior to this shift, and
instead offering this opportunity to reserve officers. The Board
stated that overtime allocation policy was a mandatory subject of
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bargaining, but went on to find no violation as the Police Chief
was new and swiftly rescinded the change in policy. See also
Teamsters Local Union No. 48 v. Town of Jay, No. 80-08 (MLRB Jan.
9, 1980) (town committed unilateral change when it drastically
changed patrol-men's work schedule, including the elimination of
the bidding and posting procedure for filling open shifts).
Based upon this precedent, the Board concludes that the
method of awarding overtime that is part of the City's new call-
back policy was a mandatory subject of bargaining. This part of
the new policy was a change from a well-established practice
since, under the previous policy of using general call-backs
exclusively, all firefighters who chose to respond to a call-back
could respond. There was no need for the Association to nego-
tiate about who would get the overtime, since it was naturally
allocated by the election of the firefighters. When the new
call-back policy was instituted which limited the offer of
overtime in certain circumstances, the City also unilaterally
created a system by which the two-person overtime would be
allocated (first two firefighters calling into station after call
announced). Because the City instituted this new system of
overtime allocation without notice to the Association or
opportunity to negotiate about this change, the City committed a
unilateral change in the mandatory subjects of bargaining and
violated the duty to bargain as provided in 964(1)(E).
In summary, the Board finds that the City did not commit a
unilateral change in the mandatory subjects of bargaining when it
instituted that part of the new call-back policy which provided
for a new code call-back requiring only two firefighters when the
Fire Chief determines that this constitutes sufficient coverage
for a call-back. However, the City committed a unilateral change
in the mandatory subjects of bargaining, and thus violated
964(1)(E), when it instituted that part of the new call-back
policy which provided for the manner in which this limited two-
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firefighter overtime was to be allocated. The terms of the CBA
did not allow the City to alter this part of the policy without
negotiation, nor did the Association waive the right to negotiate
mid-term about this policy change prior to it being implemented.[fn]4
Upon finding that a party has engaged in a prohibited
practice, we are instructed by 968(5)(C) to order the party "to
cease and desist from such prohibited practice and to take such
affirmative action . . . as will effectuate the policies of this
chapter." A properly designed remedial order also seeks "a
restoration of the situation, as nearly as possible, to that
which would have obtained" but for the prohibited practice.
Caribou School Department v. Caribou Teachers Ass'n, 402 A.2d
1279, 1284 (Me. 1979). Restoring the status quo ante in this
case is somewhat difficult. In part, we order that the City
rescind that part of the new call-back policy which allocates the
overtime opportunity to the first two firefighters who respond to
the call, and that the City negotiate in good faith with the
Association about this part of the policy, including partici-
pation in the statutory dispute resolution process, if necessary
to resolve the issue. We understand that it may not be possible
for the City to continue to implement the new call-back policy at
all until it has negotiated the overtime allocation part of this
policy.
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4 We wish to emphasize here that the matter before us is whether
the City committed a unilateral change in the mandatory subjects of
bargaining. This is what the Association argued in its April 12,
2004, letter to City, demanding that the new call-back policy be
rescinded or held in abeyance and that the City negotiate this policy
change. This is further the issue as characterized by the Association
in its prohibited practice complaint. By this decision, the Board
does not preclude the possibility that the City might also be required
to negotiate the impact of that part of the new policy that requires
only two firefighters to report for coverage, if there is any impact,
upon the terms and conditions of employment--an issue separate from
the matter that we have addressed, which was whether the City was
required to negotiate about the change to the policy itself. See City
of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1134-1135 (Me. 1982).
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We find it unnecessary to order any make-whole relief in
this matter. There was no evidence presented of how often the
new policy has been used since its implementation. To the extent
it has been utilized, it would be impossible to determine whether
different firefighters would have received the overtime oppor-
tunity under the new call-back policy if a different allocation
system had been in place.
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 City of Gardiner and its representatives and
agents:
I. Cease and desist from refusing to bargain with the
Association over that part of the new "Code 22" call-
back policy which determines the method of allocating
the overtime work that is generated by this new call-
back system; and
II. Take the following affirmative actions designed to
effectuate the purposes of the Act:
A. Rescind that part of the new "Code 22"
call-back policy which determines the method
of allocating the overtime work that is
generated by this new call-back system; and
B. Meet with the Association for the purpose
of negotiating that part of the new "Code 22"
call-back policy which determines the method
of allocating the overtime work, within ten
days of receipt of this order. The parties
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may meet beyond the ten-day period if mutually
agreeable.
Dated at Augusta, Maine, this 22nd day of March, 2005.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26
M.R.S.A. 968(5))(F) (Supp. /s/___________________________
2004) to seek a review of this Peter T. Dawson
decision and order by the Neutral 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 Karl Dornish, Jr.
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/___________________________
Carol B. Gilmore
Employee Representative
-17-
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