AFSCME, Council 93, AFL-CIO (the "Union") filed this
prohibited practice complaint with the Board alleging that the
Lincoln County Commissioners, the Lincoln County Sheriff's
Department and Lincoln County's Agent (the "Employer") violated
the Municipal Public Employees Labor Relations Law (the "Act") by
directly dealing with an employee regarding his pay and benefits. 
The Union's complaint alleges that this conduct violated section
964(1)(A) and (E) of the Act.   The Employer argues that its
conduct was not a violation of the law.  
     The Union filed the complaint on June 6, 2006, and the
Employer filed its response on June 29, 2006.  The prehearing
conference on January 5, 2007, included Peter T. Dawson, Esq.,
the presiding officer; Erin Goodwin, Esq., representing AFSCME;
and Ms. Annalee Rosenblatt representing Lincoln County.  The
parties agreed to a number of stipulations at the prehearing
conference.
     At the evidentiary hearing on January 25, 2007, the parties
were able to examine and cross-examine witnesses and to offer
documentary evidence.  Chair Peter Dawson presided at the
hearing, with Employer Representative Karl Dornish, Jr., and
Employee Representative Wayne Whitney serving as the other two 

[end of page 1]

Board members.  The parties agreed to file simultaneous briefs
which were received by February 28, 2007.  The Board deliberated
this matter on March 16, 2007.

                           JURISDICTION

     Lincoln County is a public employer within the meaning of 26
M.R.S.A. 962(7) and AFSCME is a bargaining agent within the
meaning of 26 M.R.S.A. 962(2) at all times relevant to this
complaint.  The jurisdiction of the Board to render a decision
and order lies in 26 M.R.S.A. 968(5).   
                                        
                           STIPULATIONS
               
     1. AFSCME is the bargaining agent, within the meaning of
section 6 of Title 26 M.R.S.A. 962 (1988), for certain employees
of the Respondent.
     2. On or about December 29, 2005, Sheriff Todd Brackett
called bargaining unit member Mike Murphy into a meeting in the
County Commissioners' Office.
     3. Mike Murphy is a member of the bargaining unit
represented as described at paragraph 1.
     4. Present at this meeting were County Commissioners Bond,
Blodgett and Honey as well as Sheriff Brackett and Annalee
Rosenblatt.
     5. No representative was present from AFSCME.
     6. During this meeting, Murphy was offered the position of
"Acting Special Services Supervisor."
     7. Commissioner Honey questioned why Murphy wished to remain
in the Unit as he was given "a written assurance of job
security."
                         
                         FINDINGS OF FACT

1.   The collective bargaining agreement between the Lincoln
     County Commissioners and Council 93, AFSCME for the period 

[end of page 2]

     of January 1, 2003, to December 31, 2005, contains a
     recognition clause which describes the bargaining unit as
     including:  "all Sheriff Department employees in the
     classifications of full-time lieutenants, sergeants,
     corporals, deputy sheriffs and corrections officers." 
2.   At the Lincoln County Commissioner's meeting of February 1,
     2005, Sheriff Todd Brackett requested that the position of
     jail administrator be changed to a rank of lieutenant rather
     than the rank of captain.  Two changes prompted this
     request:  The then-current jail administrator was planning
     to retire and the county jail was scheduled to close
     sometime during 2006, as soon as the new joint Lincoln
     County/Sagadahoc County jail opened.  As a lieutenant, the
     new position would be in the bargaining unit, which Sheriff
     Brackett thought would provide a greater sense of job
     security to prospective applicants for a position with an
     uncertain future.  Once the regional jail opened, there
     would be no need for a jail administrator like the one that
     had existed before the closing.  Little was known about what
     would happen to the jail budget once the jail closed, and
     the jail administrator's salary had traditionally been
     housed in the jail budget.  After considering the matter,
     the Commissioners voted to approve the Sheriff's request to
     change the jail administrator position to a lieutenant.
3.   On February 7, 2005, Sheriff Brackett posted a promotional
     notice for the new lieutenant position called "Special
     Services Supervisor."  The posting indicated that the
     position was formerly known as "Jail Administrator."  The
     posting included an application deadline and tentative dates
     for further steps in the interview process.       
4.   Four applicants applied for the position, all of whom were
     bargaining unit members.  All four were given an oral board
     and the top three candidates had an interview with the 

[end of page 3]

     Deputy Chief.  It is not clear from the record when these
     steps were completed, but the process was well underway by
     the end of March, 2005.
5.   At the County Commissioners' meeting of April 5, 2005, the
     Commissioners went into executive session to discuss the new
     position.  Also present were Sheriff Brackett and the
     County's labor relations consultant, Annalee Rosenblatt. 
     Based on the consultant's advice, the Commissioners decided
     they no longer wanted the new special services supervisor
     position to be in the bargaining unit.  The Commissioners
     wanted the rank to be a captain, and not in the bargaining
     unit, while the Sheriff wanted it to be in the unit with the
     rank of lieutenant.  There was a heated discussion on this
     issue, as the Sheriff was not happy that the status was
     being changed after the interview process was underway.  He
     also thought it would be difficult to fill a position that
     had such an uncertain future.  After further discussion, the
     Sheriff recommended that the position be an unranked, non-
     bargaining unit position to be called "Acting Special
     Services Supervisor."  The Sheriff planned to leave open the
     unit position vacated by the successful applicant, so that
     if the supervisory position were eliminated, the person
     taking in that job could slide back into his old position in
     the unit.[fn]1  The Sheriff viewed the acting status as
     providing some level of job security as long as they left
     the position vacated open.  The Commissioners agreed.  After
     coming out of executive session, the Commissioners voted 3-0
     
[fn]1 At some point, the Sheriff had a conversation with Ms. Rosen-
blatt about the employees' concerns about job security and loss of
bumping rights if the position were not in the unit. He testified that
she informed him that making the position an acting status while
keeping the employee's prior position vacant would enable that person
to slide back into his old job if the supervisory position were
eliminated. 

[end of page 4]

     to create an acting, non-bargaining unit supervisory
     position for the Jail and CID Division, with a $45,000
     salary plus benefits, pursuant to personnel policy.
6.   The Sheriff explained this change in the position to all
     three candidates.  He told them that the position would not
     be in the bargaining unit, and because he and the
     Commissioners could not agree on the appropriate rank, it
     would remain unranked and the position would be just called
     Acting Special Services Supervisor.  It would have a salary
     of $45,000, and benefits in accordance with other non-
     bargaining unit positions.
7.   When Detective Sergeant Murphy was offered the job he was
     concerned because the pay represented a decrease for him, as
     he would no longer be eligible for overtime pay.  The
     previous year he had made about $51,000 because of the
     overtime hours worked.  Murphy was also concerned about job
     security because the future of the position after the jail
     closed was not assured and losing the bargaining unit status
     meant he would lose the protections of the collective
     bargaining agreement. 
8.   Sheriff Brackett and Murphy discussed these concerns.  The
     Sheriff identified how much was available in the budget for
     the year and was able to increase the pay somewhat, but only
     for the remainder of the year.  Sheriff Brackett also told
     Murphy that he anticipated that the union would be dealing
     with the employer on the bargaining unit status of the
     position somehow.        
9.   Murphy testified that he went to speak to Commissioner Bond
     at Bond's place of business to ask him to reconsider the
     decision to keep the new position out of the unit.  After
     discussing the subject for some time, Mr. Murphy realized
     that Commissioner Bond would not reverse his decision on the
     issue so he left.

[end of page 5]

10.  Murphy accepted the position on the terms offered and
     assumed the new duties in April of 2005.  Murphy testified
     that he thought that even though he would be in a salaried
     position, he would be able to continue to pay his union dues
     because he was in an "acting" status.  He testified that he
     could not remember whether the issue of his continuing to
     pay dues was discussed specifically with Sheriff Brackett. 
11.  Murphy noticed that his union dues were not being taken out
     of his paycheck sometime in the early summer.  He spoke to
     Nancy Giles, the County Clerk, and asked if she could deduct
     his union dues.  She was not certain and said she would have
     to find out.  He spoke with her again after a couple of
     weeks and she said it would not be possible. 
12.  Murphy let it go for a while, but became more concerned
     after speaking with the union steward, Rand Maker, the union
     steward and the President of the AFSCME local.  Maker felt
     it was risky to remain outside the unit.  Maker pointed out
     that if management decided to eliminate the position, he
     would not be able to bump back into his old position in the
     unit if the Union objected.  He said Murphy would have no
     recourse because he was not in the bargaining unit.
13.  In late September or early October, there was a newspaper
     article in which Murphy's name was published with the rank
     of Lieutenant before it.  That prompted Commissioner Bond to
     direct Nancy Giles to write a memo stating that Murphy was
     not a Lieutenant but was a Captain.  The memo was addressed
     to Sheriff Brackett and Major Mason, was from the Lincoln
     County Commissioners and was initialed by Nancy Giles, the
     County Clerk.  A few days later an identical memo signed by
     Commissioner Bond was issued.  
14.  Murphy interpreted the memo about rank to mean that
     management had gone ahead and made the change without
     negotiating.  Murphy spoke with Maker, the union steward, 

[end of page 6]

     about returning to his old position, which had been held
     vacant while he was in the Acting Special Services
     Supervisor position.  Maker encouraged him to move back to
     his old position.  
15.  The memos and the conversation with the union steward
     prompted Murphy to meet with the Sheriff to request that he
     be placed in his former rank as soon as possible.  Murphy
     agreed to continue to perform the duties of the Acting
     Special Services Supervisor position because he knew the job
     had to be done, he knew how to do the job, and he had a
     loyalty to the department.  Murphy's memo to the Sheriff
     dated October 7, 2005, commemorating this meeting stated:
             Due to the uncertainty of the "Acting"
          rank I currently hold, I am requesting to
          return to my former rank of Detective
          Sergeant as soon as possible.  I am offering
          to retain my current responsibilities while
          this matter is being resolved.

16.  The Sheriff returned Murphy to his old position and to the
     pay rate he would have received had he not left his
     detective sergeant position in the first place, effective
     the following day.  According to the contract, when an
     officer reaches 1, 3, 6, and 9 years of service, the officer
     moves to the next step on the pay scale.  Murphy reached 9
     years of service on June 15, 2005, a point in time in which
     he was out of the bargaining unit in the Acting Special
     Services Supervisor position.  When he went back to
     detective sergeant they changed his pay to the rate he would
     have received if he had never left the detective sergeant
     job.  The memo from the Sheriff directing this change
     states:
          [Murphy's] rate of pay should be returned to
          that of 9+ year detective or $19.02/hour in
          accordance with our collective bargaining
          agreement, as he reached his 9 year
          anniversary on June 15, 2005. 

[end of page 7]

17.  All four detectives in the Sheriff's Department had about
     the same amount of seniority. 
18.  Article 4, paragraph A of the collective bargaining
     agreement in effect from 2003 through 2005 is entitled
     "Management Rights" and states:         
              Management of the operations and the direction
          of the County work force shall be solely and
          exclusively vested in the County Commissioners
          ("County" or their designee).  Without limiting
          the foregoing, the County shall have the sole and
          exclusive right to hire or promote, to transfer,
          assign, subcontract or relocate work, to discharge
          or discipline, to schedule hours and to require
          such overtime work as is necessary for County
          operations, to relieve employees from duty because
          of lack of work, to increase or decrease the work
          force or to decide the number and location of its
          operations, to establish standards for the quality
          and quantity of work to be performed, to establish
          the personnel required in supervisory, clerical
          and other positions not included in the bargaining
          unit, and the right to establish or change
          procedures, practices, programs, rules or
          regulations except when such establishment or
          change would conflict with the express provisions
          of this Agreement.  The Union and the County agree
          that the Union shall have the right to bargain
          over the impact of a decision by the County to
          subcontract work.

19.  Article 6 of the collective bargaining agreement covers
     seniority.  And states in full:
     A.  Seniority List
          The Employer shall establish a seniority list and
     it shall be brought up to date on the first of January
     of each year and posted at the Sheriff's Department.  A
     copy shall be mailed to the secretary of the Union. 
     Any objection to the seniority list posted shall be
     reported to the Sheriff in writing within ten (10)
     calendar days following the posting of such list or it
     shall stand as accepted.  Objections to the accuracy of
     the list will be limited to changes or additions made
     since the last January posting.

[end of page 8]

     B. Seniority Classifications
          1.  County Longevity - County longevity shall mean
     an employee's length of continuous service with the
     County since the employee's most recent date of hire. 
     County longevity will be used for the purpose of
     computing vacation and sick leave entitlement,
     retirement, and placement on the seniority list. 

          2.  Bargaining Unit Seniority - Bargaining unit
     seniority shall mean the total length of continuous
     service in the bargaining unit since the employees most
     recent date of hire into the bargaining unit.  Article
     8 B. details use of bargaining unit seniority.

          3.  Classification Seniority - Classification
     seniority shall mean the total length of continuous
     service in a position classification.

20.  Article 8 of the Agreement covers promotions, layoffs and
     recall, and states in full: 
     A.  Promotions. Bargaining unit seniority shall be a
     factor effecting promotions provided that the employees
     are otherwise substantially equal in knowledge, skills,
     ability, and work record. Seniority shall be a
     governing factor in all matters affecting layoff and
     will be considered first within the affected divisions,
     then within the affected classification and finally
     within the Department.  The employee(s) affected shall
     be allowed to bump into another lesser classification,
     only if the Sheriff or his/her designee agrees that the
     employee(s) is qualified to do so.
 
     B.  Lay Off.  Bargaining unit seniority shall be the
     governing factor in all matters affecting layoff,
     vacation preference, floating holiday preference,
     recall, shift bids, and transfer to a vacant position
     and will be considered within the affected divisions,
     then within the affected classification, and finally
     with the Department.

     C.  Recall.  Employees who are laid off shall be placed
     on a recall list by classification for one (1) year. 
     Recall notices must be answered and a date as to the
     return to work agreed upon between the employee and the
     employer within (7) calendar days of receipt of the
     notice of recall.  No new employee shall be hired until 

[end of page 9]

     all employees on layoff have been given an opportunity 
     to return to work provided that the recalled employee
     has the skill and the ability to fill the vacant
     position.  Nothing herein shall restrict the option of
     an employee to accept layoff in lieu of a reduction in
     job classification without loss of the employee's right
     to be rehired hereunder.
21.  The collective bargaining agreement does not address the
     rights of former unit employees in positions outside of the
     bargaining unit to return to the unit or the status of such
     a returning employee.  The agreement makes no reference to
     an "acting" status either inside or outside of the unit.
22.  On Thursday, December 29, 2005, the Commissioners had a
     special meeting to discuss the unit clarification petition
     filed by the Union that sought to add the Special Services
     Supervisor position to the existing bargaining unit.     
     The Sheriff and Ms. Rosenblatt were also present at this
     meeting.  The Commissioners learned that Murphy had moved
     back to his previous position in the bargaining unit and had
     continued to perform the duties of the Acting Special
     Services Supervisor position.  The Commissioners asked the
     Sheriff to see if Murphy was available to come over to their
     meeting to discuss this matter.  Murphy arrived shortly
     after being called.
23.  The Commissioners told Murphy that they had just learned
     that he was no longer in the supervisory position but was
     still performing those duties.  The Commissioners wanted
     Murphy to return to the Acting Special Services Supervisor
     position at the pay and benefit level previously
     established.  Ms. Rosenblatt said they would provide him a
     letter signed by all the Commissioners assuring him that if
     the supervisory position were cut in the next budget year,
     Murphy would be allowed to return to his old position.  The
     Commissioners also wanted to compensate Murphy for the
     period he performed the duties of the Acting Special 
[end of page 10]

     Services Supervisor after returning to the Detective
     Sergeant position.   
24.  Murphy indicated that he would consider their offer if he
     were allowed to stay in the unit and pay his union dues
     until the status of the position was resolved.  Murphy was
     concerned about job security.  Commissioner Honey asked why
     Murphy felt a need to be in bargaining unit if they were
     giving him a written assurance of job security.  Murphy
     questioned whether the employer could just let someone back
     into the bargaining unit without consulting the union.   
     Ms. Rosenblatt responded that he was mistaken, and that the
     letter would be sufficient to allow him to move back.  She
     and the Commissioners made it clear that they did not want
     the supervisory position in the bargaining unit.
25.  Murphy stated that he needed to think about the offer.  
     Sheriff Brackett stated that he could give them his answer
     after the weekend, but Ms. Rosenblatt interrupted and said
     that they would need the answer the following day.  She said 
     because of the Monday holiday, they would need the answer on
     Friday in order to have the paperwork prepared in time for
     the Commissioners' meeting scheduled for Tuesday.
26.  Murphy returned to his office.  As soon as Sheriff Brackett
     returned a few minutes later, Murphy told him he was not
     going to accept the offer.
     
                            DISCUSSION
                              
     The issue in this case is whether the Employer violated 26
M.R.S.A. 964(1)(E) and 964(1)(A) by dealing directly with
Michael Murphy regarding his wages, benefits and working
conditions during the meeting of December 29, 2005.  There is no
dispute that the Lincoln County Commissioners met with Murphy on
that date to try to talk him into returning to the supervisory
position he had previously held from April to October of that 

[end of page 11]

year.  They discussed the wages and benefits for this position
(which was not in the bargaining unit) and offered to give him a
written assurance that he could return to his detective position
in the bargaining unit if the supervisory position were later
eliminated.  They also stated that he would get back pay for
continuing to perform the supervisor's duties after he returned
to his Detective/Sergeant position in October.  Although there is
very little dispute about the facts, the parties disagree on
whether the Employer's actions violated the Act.
     It is well established that an employer violates the law by
dealing directly with its employees about the mandatory subjects
of bargaining instead of dealing with the exclusive bargaining
representative.  See Teamsters Union Local 340 v. Jay School
Dept., No. 06-22, at 8 (Nov. 21, 2006) (Direct dealing with unit
employees about work schedules violates the collective bargaining
statute covering municipal, school district, and county
employees); MSEA v. Bangor Mental Health Inst. (BMHI) and State
of Maine, No. 84-01, at 7 (Dec. 5, 1983) (Negotiating directly
with state employees about shift coverage rather than dealing
with the union is a refusal to bargain in violation of the
collective bargaining statute covering state employees); and MSEA
v. Maine Maritime Academy, No. 05-04, at 22, 24 (Jan. 31, 2006)
(Negotiating wages and benefits directly with an applicant for  
a unit position violates the statute governing collective
bargaining for employees of state higher education institutions). 
When an employer bypasses the bargaining agent, whether by making
a unilateral change in a mandatory subject or by dealing directly
with a unit employee, it constitutes a failure to bargain in
violation of 964(1)(E) because it is equivalent to an outright
refusal to bargain.  MSEA v. Maine Maritime Academy, No. 05-04 at
15, citing MSEA v. State of Maine, Bureau of Alcoholic Beverages,
No. 78-23 (July 15, 1978).  Direct dealing also interferes with
the bargaining agent's status as the exclusive representative, 

[end of page 12]

therefore violating 26 M.R.S.A. 964(1)(A).  Teamsters Union
Local 340 v. Jay School Dept., No. 06-22 (Nov. 21, 2006), at 11-
12; MSEA v. BMHI and State of Maine, No. 84-01, at 7.
     The focus of this case is the December 29, 2005, meeting, as
all other evidence relates to conduct occurring outside of the
statutory six-month limitation period.  The Act precludes a party
from using events occurring more than six months prior to the
filing of the complaint as the basis for the alleged violation or
to prove the illegality of conduct occurring within the six-month
period.  26 M.R.S.A. 968(5)(2) ("[N]o hearing shall be held
based upon any alleged prohibited practice occurring more than 6
months prior to the filing of the complaint with the executive
director.")  Evidence of events preceding the six-month period
may be considered "to shed light on the true character of matters
occurring within the limitations period."  Teamsters Local 48 v.
City of Waterville, No. 80-14, at 2-3 (April 23, 1980).  In the
present case, the six-month period runs to December 6, 2005. 
Thus, the only issue is whether the employer's conduct after that
date constitutes a violation of the Act.          
     The Union argues that this case is controlled by Maine
Maritime Academy, in which the Board found the Academy had
violated the law by negotiating directly with a new hire
regarding starting pay and benefits.  MSEA v. Maine Maritime
Academy, No. 05-04.  The Employer's argument is that the position
of Acting Special Services Supervisor was not in the bargaining
unit at the time of the events at issue and thus there was no
duty to bargain.
     At the December 29, 2005, meeting, the Employer discussed
aspects of wages, hours and working conditions with Murphy that
can be separated into two distinct categories.  One category
involved the wages, hours and working conditions of the Acting
Special Services Supervisor position and the other category
involved the wages, hours and working conditions Murphy would 

[end of page 13]

receive upon his return to the detective sergeant position in the
event the supervisory position was eliminated.  Thus, one
category of issues involved a position outside of the unit; the
other involved employment conditions within the bargaining unit.  
     Even though Murphy was in the bargaining unit at the time of
the December 29, 2005 meeting, we conclude that the Employer did
not violate the Act by directly negotiating with him regarding
the pay and benefits for the supervisory position because that
position was not in the bargaining unit at that time.  In the
analysis of a direct dealing charge, the question is not whether 
Murphy was in the bargaining unit, but whether the direct dealing
involved issues that materially and significantly affect the
conditions of employment of bargaining unit employees, that is,
mandatory subjects of bargaining.  See MSEA v. Maine Maritime,
No. 05-04, at 23, and cases cited therein.
     The wages, benefits and working conditions of a supervisory
position that is not part of the bargaining unit do not signifi-
cantly and materially affect the working conditions of unit
employees.  See, e.g., Upper Southampton Township Police
Benevolent Assoc. v. Upper Southampton Township, Pennsylvania
Labor Relations Board, No. PF-C-98-83-E (June 20, 2000)(Township
has no duty to bargain over wages, benefits and working
conditions of a non-bargaining unit position) and U.S. Dept. of
the Navy, Naval Aviation Depot, Cherry Point, N.C. v. FLRA, 952
F.2d 1434, 1441-42 (D.C. Cir. 1992)(Proposals that directly
implicate supervisory employees not in bargaining unit by
regulating their terms and conditions of employment are not
within the duty to bargain.)  Generally speaking, an employer
does not violate the law by negotiating with a unit employee over
terms of employment for a position outside the bargaining unit,
absent evidence of an intent to weaken the union or eliminate 

[end of page 14]

bargaining unit work.[fn]2  See MSEA v. State of Maine, No. 81-06 
(April 28, 1981)("[T]he State has the sole discretion in   
determining the excluded group of employees' wages and benefits 
. . .").  Thus, we conclude that the employer committed no
violation of the Act by dealing with Murphy over the terms and
conditions of his potential re-employment as the Acting Special
Services Supervisor.  The issue of Murphy's status upon returning
to the bargaining unit is, however, a different matter.     
     The Employer's authority to keep Murphy's Detective Sergeant
position vacant for the time he would serve as Acting Special
Services Supervisor is not in dispute, nor is the Employer's 
authority to allow Murphy to return to the vacant unit
position.[fn]3 
Our concern is that the Employer made an offer to return Murphy
to the bargaining unit without discussing this issue or the
impact of such an occurrence with the Union.  
     As the Employer points out in its brief, the offer the
Employer made to Murphy on December 29, 2005, was essentially the
same offer that he had accepted the previous April.  Employer's
Brief at 2, 6.  We conclude that the assurance of being able to
return to his old position in the unit would be under the same
terms as what he actually experienced in October of 2005.  When
Murphy returned to the bargaining unit in October, the evidence
shows that he suffered no loss of bargaining unit seniority, even 

[fn]2 There is no suggestion that the employer was trying to interfere
with collective bargaining or weaken union support by enticing Murphy
to leave the unit.  See Lincoln Sanitary District and Teamsters Union
Local 340, No. 92-UC-02 (November 17, 1992) at 15, fn. 2, and MSAD #14
and East Grand Teachers Assoc., No. 83-A-09, (Aug. 24, 1983) (Noting
that a decision to assign confidential duties to an employee made with
the intent to deprive the employee of collective bargaining coverage
would be in violation of  964(1)(A) of the Act.)  Similarly, there is
no suggestion of an attempt to take bargaining unit work out of the
unit.  AFSCME v. Ellsworth School Committee, No. 81-41 (July 23, 1981)
at 14 (preservation of bargaining unit work is a mandatory subject of
bargaining).

[fn]3 The Employer cites the broad management rights provision in the
collective bargaining agreement. 

[end of page 15]



though he was out of the bargaining unit for about six months. 
Sheriff Brackett set Murphy's pay at the level he would have
achieved had he never left the unit, and there is no evidence
that his seniority was reduced to reflect time spent out of the
unit.  
     The collective bargaining agreement identifies three types
of seniority:  County longevity, bargaining unit seniority, and
classification seniority.  "Bargaining unit seniority" is defined
as "total length of continuous service in the bargaining unit
since the employees (sic) most recent date of hire into the
bargaining unit."  Neither party presented any evidence or
argument on the meaning of these terms, nor did they address
these provisions in testimony or in their briefs.  While it is
not clear to us how these definitions are interpreted or applied,
they have some significance as the provisions of the agreement
covering promotions, layoff and recall all refer to one or more
of these definitions of seniority.  
     Seniority is a mandatory subject of bargaining.  See, e.g.,
Palermo Teachers Assoc. v. Palermo School Committee, No. 81-29,
at 5 (May 22, 1981) (A reduction-in-force seniority provision is
clearly a mandatory subject of bargaining).  See also Developing
Labor Law, Hardin & Higgins, eds. 4th Ed. (2001) p. 1202
("Seniority is so obviously a condition of employment, and so
commonly exists under union contracts, that litigation
questioning its mandatory status has been minimal.")  Altering an
employee's seniority has a direct effect on that person's status
as well as the relative status of every other employee in the
bargaining unit or job classification.  The National Labor
Relations Board considered this issue when it concluded that an
employer's proposal regarding return rights for supervisors was a
mandatory subject of bargaining because of the impact on the
bargaining unit.  Remington Arms. Co., 298 NLRB 266, fn. 1
(1990).  In that case, the employer's proposal involved issues 

[end of page 16]

such as the calculation of seniority for the returning super-

visors, wage rates, bidding procedures, and the relative rights
of employees on layoff.  In the present case, Murphy's seniority
upon his return to the bargaining unit would raise similar
concerns.  It is, therefore, a mandatory subject of bargaining.
     It is well-settled law that the employer has an obligation
to notify the union and give the union an opportunity to bargain
before making a change in a mandatory subject of bargaining.  As
the Law Court noted:
     . . . Concomitant with the characterization of a
     subject as within the duty to negotiate is a duty of
     the employer to notify the union to provide it with an
     opportunity to bargain over it.  The failure to do so
     violates 964(1)(E).             
City of Bangor v. AFSCME, 449 A.2d 1129 (Me. 1982) (citation
omitted).  It is undisputed that the Employer did not give notice
to the Union of their offer of a written assurance that he could
return to the unit.  The fact that the Union did not object to
Murphy's return to the bargaining unit in October of 2005 or to
his seniority status upon his return at that time does not affect
the Employer's obligation in December to notify the Union and
provide it an opportunity to bargain.  In October, Murphy moved
back into the vacant position in the unit shortly after
discussing the issue with the Union President and receiving his
encouragement.  In December, without notice to the Union, the
Employer offered Murphy a written assurance that he could again
return to the unit at some unknown point in 2006 when the new
jail was expected to open.  The Union was entitled to determine
whether the current circumstances or future concerns (such as the
potential for other layoffs when the jail closed) warranted
bargaining with the Employer over the issue.  The Employer's
failure to notify the Union and provide it with an opportunity to
bargain over Murphy's seniority constitutes a failure to bargain
in violation of section 964(1)(E) and section 964(1)(A).

[end of page 17]

     The Union requests as a remedy an order to the Employer to
cease and desist, to post a notice of the Board's order, and to
pay Murphy at the rate of Acting Special Services Supervisor for
the period in which he performed those duties while a Detective
Sergeant.  The Union argues that the Employer received the
benefit of Murphy performing these duties without additional
compensation from October of 2005 until August of 2006 "as a
result of its illegal, direct dealing with a bargaining unit
member."  
     We find no connection between the direct dealing violation
occurring on December 29, 2005, (which was limited to assurances
regarding Murphy's return to the bargaining unit) and this
requested remedy.  The Union's argument is similar to the
"continuing violation" theory rejected by this Board in Teamsters
v. City of Waterville. No. 80-14, at 3-4 (April 23, 1980) ("where
a complaint based upon [an] earlier event is time-barred,"
allowing that event "to cloak with illegality that which was
otherwise lawful . . . [would revive] a legally defunct unfair
labor practice.")  There is no evidence in the record that paying
Murphy at the Detective Sergeant rate while he performed the
duties of the Special Services Supervisor violated the Act.   
The Union request for back pay is therefore denied.    
     We have fully considered the Union's request for a remedial
order in light of the evidence presented and the severity of the
violation.  On that basis, we conclude that a cease and desist
order is sufficient in this case.

                              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), it is hereby ORDERED:

[end of page 18]
     
     That the Lincoln County Commissioners, the Lincoln
     County Sheriff's Department and Lincoln County's Agent
     cease and desist dealing directly with an employee over
     any mandatory subject of bargaining.

Dated at Augusta, Maine, this 1st day of June 2007.

 

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