The Firefighters Unit of Local 1476 of the International
Association of Firefighters (the "Union") filed this prohibited
practice complaint with the Maine Labor Relations Board on
September 27, 2011, alleging that the City of South Portland (the
"City" or "Employer") made a unilateral change in a mandatory
subject of bargaining.  The complaint alleges that this conduct 
constituted a failure to negotiate in good faith as required by
26 M.R.S.A. §965(1)(C) of the Municipal Public Employees Labor
Relations Law (the "Act"), thereby violating § 964(1)(E) of the
Act.
       
     Throughout this proceeding, Robert F. Bourgault represented
the Complainant, IAFF Local 1476, and Robert W. Bower, Jr., Esq.,
represented the Respondent City of South Portland.  The case was
held in abeyance so that the parties could attempt to resolve the
dispute on their own.  An evidentiary hearing was held on 
October 26, 2012, at which time the parties were able to examine
and cross-examine witnesses, and introduce documentary evidence. 
The parties submitted post-hearing briefs, the last of which was
filed on February 8, 2013. Board members Susan L. Higgins,  

[end of page 1]


Chair, Richard L. Hornbeck, Esq., and Robert L. Piccone met on
March 4, 2013, to deliberate this matter. 
   
                          JURISDICTION
                          
     Local 1476 of the International Association of Firefighters
is the bargaining agent within the meaning of 26 M.R.S.A.
§962(2), and the City of South Portland is the 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).                                           
                     
                       FINDINGS OF FACTS
                     
1.   IAFF Local 1476 is the bargaining agent for a bargaining
     unit of all uniformed employees below the rank of lieutenant
     at the South Portland Fire Department.  The parties' current
     collective bargaining agreement runs from July 1, 2011,
     until June 30, 2014.  There are just under 50 firefighters
     in the Fire Department, as well as 12 officers (captains and
     lieutenants), three deputy chiefs and one chief.  The
     officers are in a separate bargaining unit.
 
2.   Article 16, section A of the parties' collective bargaining
     agreement is entitled "Overtime Lists" and describes the
     overtime hiring requirements for the bargaining unit.  It
     establishes four different overtime rosters including a
     lists for regular overtime and for forced overtime. The
     relevant subsections of Article 16(A) are:
 
          2.  Any employee called to fill a staffing vacancy
          shall be called in proper rotation from a Regular
          Overtime posted roster that reflects the vacancy. 
          Any overtime work that is not for the staffing of
          fire department equipment shall be taken from a
          roster called Outside Overtime.

[end of page 2]

          3.  Any employee who accepts overtime or refuses
          six (6) overtime offers shall be rotated to the
          bottom of the overtime roster.  Employees shall
          supply the Department with their current phone
          number. An employee may refuse any and all work
          except that of an emergency nature as defined by
          the Chief or Deputy.  An Emergency (forced) posted
          roster shall be used when a volunteer is not
          available to fill a vacancy from the Regular
          overtime rosters.  It shall be the responsibility
          of the Chief or Deputy to periodically balance the
          forced lists.
           
     Article 16 includes several other sections called Donation
     of Service, Training, Call Back, Overtime Rate/Hours of
     Work, Employees as Members of Call Companies, and All Hands
     Call Overtime.  There is no reference in Article 16 to
     policies or procedures to implement the Article's
     provisions.   
      
3.   The current year's overtime budget for the Fire Department
     is $475,000.
      
4.   Article 16 of the collective bargaining agreement has been
     in place and has remained unchanged for many years.  The
     collective bargaining agreement does not spell out the
     actual procedure used for hiring firefighters for overtime
     such as how firefighters are notified of overtime
     opportunities and the mechanics of filling spots.  These
     procedures are detailed in the Department's Overtime Hiring
     Policy.
 
5.   The 2004 version of the Overtime Policy can be summarized as
     follows:  After the staffing needs are identified, the
     hiring officer would begin the calling process no earlier
     than 6 p.m. and would start with the first person on the
     list.  If the call was not answered, the officer would leave
     a message "Fire Department Hiring for Overtime" and wait 5 
               
[end of page 3]

     minutes for a return call.  The hiring officer would not
     move on to the next person on the list until contact had
     been made or a message left and no response received.  An
     employee who accepted the overtime or refused six (6)
     overtime offers would be rotated to the bottom of the
     roster.  The hiring officer continued on down the list,
     calling one person after another using the same procedure
     until all the vacancies were filled.  If the hiring officer
     reached the bottom of the list and had not filled all the
     vacancies, the hiring moved to a separate "forced list."  In
     those instances where the person to be contacted was on
     duty, the hiring officer would either call the fire station
     by telephone or radio and speak to the employee or have the
     supervisor ask him if he wanted overtime. 
           
6.   In 2005, the Department switched to 24-hour shifts from 14-
     hour night and 10-hour day shifts.  This change impacted the
     overtime hiring procedure and several grievances were filed. 
     The Union and the Employer agreed to resolve the grievances
     with an adjustment to the procedure, which was described in
     a memo from the Chief dated August 25, 2005.
 
7.   The time required under the procedure in effect prior to
     2011 varied from around 20 minutes up to an hour and a half,
     depending on whether firefighters high up on the list
     answered the call (or responded to the message left) and
     accepted the overtime.  There are some people who never
     accept overtime, some who occasionally take overtime, and
     others who take it whenever it is offered. 
      
8.   Under the previous policy, if an employee knew he wanted
     overtime, but would not be available after 6:00 p.m. to take
     a call, he could tell the officer "if you get to my name, I 

[end of page 4]

     do want the OT."  At some point, the paging system was used
     to give employees a "heads up" that there would be available
     overtime opportunities, but the calls were still made
     following the order of the rotation list.
      
9.   Some hiring officers were less precise in administering the
     policy than others, by, for example, starting too early,
     accepting calls placed too late, or inadvertently skipping
     someone.
      
10.  The Fire Department's Strategic Planning Committee consisted
     of Union members from both bargaining units and management,
     but participation was not consistent over time.  Not
     everyone participating in the committee went to every
     meeting.  Meetings fell off during periods of change in
     Union leadership and, for example, when the former Human
     Resources Manager left.  Various issues were discussed (and
     some solved) by this committee.  There were ground rules on
     what the committee could and could not do and overtime was
     one of the issues on which the discussions would be non-
     binding.  There were concerns from all parties on certain
     aspects of the overtime hiring process, and the issue was
     discussed on and off over the course of many meetings. 
 
11.  At the strategic planning meeting on February 17, 2011, a
     number of Union members were in attendance and a document
     was presented by management as a draft policy on overtime. 
     Michael Williams, a Fire Captain and the second district
     vice president for the Union, was one of the Union members
     who voiced his concern that while the document seemed to
     present a reasonable approach, because it was a working
     condition, it needed to go back to the Union membership to
     be voted on and accepted.  John Beyer, the President of the 

[end of page 5]

     Union, also stated this same objection.  Williams testified
     that he thought that at that point "everybody was on the
     same page."
           
12.  In an e-mail dated February 23, 2011, Williams wrote to 
     Kevin Guimond, the Fire Chief, on the subject of the
     proposed overtime hiring policy, stating:
        Chief,

     I have reviewed the hiring bulletin and believe this
     changes the conditions on hiring. My understanding is
     at 1800 hours, the officer or MIC would call only those
     members that have called in instead of each member on
     the list when starting at the top.  As I mentioned at
     the Strategic Planning Committee, changes to the policy
     that would skip members for those calling in would be a
     change in working conditions and needs to be accepted
     by each bargaining unit before implementation.  Changes
     to the policy without the approval of the Units could
     incur grievances or other action based on the prior
     practice articles of both units. 

     I'm assuming that this is not your position and a
     clarification will be forthcoming.  I'm more than
     willing to take back any changes to hiring of officers
     to the Command Unit for discussion and or approval at
     our next meeting.  BTW, I do have a meeting scheduled
     for tomorrow evening.
     
          Thanks.
          
          Capt. Mike Williams
          President
          South Portland Fire Command Officers Association
 
 
13.  The first overtime policy that was posted was scheduled to
     come out on April 28, 2011, but was delayed because the
     Chief saw a problem in it.  The policy dated May 2, 2011,
     reflected the Chief's corrections.  Another issue that union
     members had identified and brought to the Chief's attention
     was addressed in the version issued on July 20, 201l.

[end of page 6]
 
14.  The mechanics of the new overtime hiring policy at issue
     involves the use of a new technological tool called
     IAMRESPONDING.  Under the new policy, the hiring officer
     uses the IAMRESPONDING system to send a simultaneous text
     and email message to all of the firefighters.  The message
     specifies the available shifts, the locations, whether
     firefighter or officer jobs, and the number for the employee
     to call by the specified deadline.[fn]1  After the deadline
     passes,[fn]2 the hiring officer takes a copy of the
     rotation list and highlights the names of individuals who
     have called in and left a message stating that they want
     overtime.  The hiring officer starts and the top of the
     list, calling each highlighted name until all of the
     available spots are filled.  At that point, the hiring
     officer sends out another message stating that all of the
     overtime shifts have been filled.
                
15.  If an employee accepted overtime under either the new or old
     policy, his name would be moved to the bottom of the list. 
     In addition, under both policies, an employee's name would
     move to the bottom of the list after six refusals.
 
16.  Under the old policy, the increased availability of caller
     ID on home telephones and on cell phones led to an increase
     in employees not answering calls from the Department.  This
     led to a reduction in the number of actual refusals logged,
     and consequently a reduction in the frequency of names being
     forced to the bottom of the list for six refusals.

     1  There was testimony that some hiring officers do not provide
the specifics of the shifts available.

     2  The deadline was changed from 1800 hours to 1700 hours in the
version of the policy issued on July 20, 2011.

[end of page 7]

 
17.  Under the new policy, refusals occur when an employee leaves
     a message indicating that he wants to work, but turns down
     the shift when the hiring officer calls.  This situation
     might arise, for example, when the employee wanted a day
     shift, but all that was available when he was called was a
     night shift.  
 
18.  Two employees testified that the new system resulted in
     fewer instances of people moving to the bottom of the list
     due to refusals. 
 
19.  The Fire Chief testified that he had adapted the policy
     three times since the initial publication on April 28, 2011,
     in response to input from officers and firefighters and that
     "my door's open today."  The Chief thought the policy that
     was replaced was "very, very inefficient" because it
     involved making up to 60 phone calls.
      
20.  One employee testified that he did not have good cell phone
     reception at his house and, consequently, was required to
     either log in to the city's email system or make a long-
     distance phone call every day to check on overtime
     availability.  Another employee, who had a cell phone but no
     home phone, discovered that his cell phone was too old to
     receive text messages.  Because he could not afford a new
     phone, he had to call in every morning and say that he was
     available for a job if one opened up.  The overtime shifts
     he had been able to work were all ones where he had been at
     work the night before.
 
21.  The Union filed a grievance over the City's implementation
     of the new policy.  Although the grievance is not part of
     the record, the City's response to the grievance dated   

[end of page 8]

     July 28, 2011, indicates that the grievance asserted that
     the Department's new policy violated the terms of Article 16
     of the agreement requiring the employees to be "called" in
     proper rotation.  The City Human Resources Director denied
     the grievance, stating that the new procedure was consistent
     with the terms of the agreement.  The crux of the denial of
     the grievance is in the following statement by the Human
     Resources Manager:
          . . . I find that the working condition of
          equalization of overtime opportunities through
          proper notification and awarding remains unchanged
          and is consistent with the collective bargaining
          agreement.  Management Rights allows the Chief to
          establish reasonable rules and methods of
          operations to facilitate the safe and efficient
          operations of the Fire Department.

     The Union also pointed out in the grievance that one of its
     members was suffering a financial hardship and was unable
     update his cell phone to be able to receive text messages. 
     The Employer responded that the hardship example was "not
     sufficient enough reason to discourage more efficient and
     less time-consuming overtime hiring procedures."
   
22.  Article 12 ("Management Rights") of the agreement states in
     full:
      
     A. The listing of the following rights of management in
     this Article is not intended to be, nor shall be,
     considered restrictive of, or as a waiver of, any of
     the rights of the City not listed herein.

        1. Except as otherwise provided in this Agreement,
     the management and the direction of the working forces,
     including but not limited to, the right to hire, the
     right to hire part-time and temporary employees, the
     right to promote, the right to discipline or discharge
     for just cause, the right to lay off for lack of work
     or other legitimate reasons, the right to reduce the
     number of hours of operations, the right to transfer, 

[end of page 9]

     the right to assign work to employees, the right to
     determine job content, the right to classify jobs and the
     right to establish reasonable rules, are vested exclusively
     in the City.

        2. The City shall have the freedom of action to
     discharge its responsibility for the successful
     operation of its mission, including, but not limited
     to, the determination of the number and location of its 
     platoons, the service to be performed (except as
     otherwise mentioned in this Agreement) the apparatus,
     tools, equipment, and materials to be used, the work
     schedules and methods of operations.
  
23.  Another grievance in August involved an individual who was
     working when the overtime notice was sent out. The grievant
     testified that there had not been any need for overtime
     identified during the day, but that evening, an opening
     occurred because an employee went home.  The officer sent
     out a text specifying the opening and giving the fire-
     
     fighters 20 minutes to respond, the time frame specified in
     the policy for emergency hiring.  The grievant was at work,
     but his phone was in a different room.  Under the old
     policy, the hiring officer would have radioed him or his
     supervisor.  The Employer denied the grievance because the
     employee could have called in to the OT mailbox at any time
     to indicate he was interested in any jobs that opened up.
      
24.  The Fire Chief described various changes in the use of
     technology for the overtime hiring process over the years. 
     In the mid- to late-1980's, radio calls were used to some
     extent.  When the Department got pagers, they were used to
     give a "heads up" on available overtime.  After the page was
     sent, the individual could call back and say if you get to
     me on the list, I will take the overtime.  That helped when
     individuals knew they would not be able to answer the phone
     when called later.  Once cell phones became available, an 

[end of page 10]


     employee could provide a cell phone number along with the
     home phone number.  After answering machines became common,
     a grievance settlement required the hiring officer to leave
     a message, which replaced the prior practice of moving on to
     the next name if there was no answer after six rings.  
           
25.  Two union officials testified that most of the changes in
     the overtime hiring policy and procedures used over the
     years had been agreed to by the union and that some of the
     changes were the result of grievances.

26.  
     Article 33 ("Zipper Clause")of the agreement states in full: 
     A.  This contract represents the total understanding of
     the parties.  The parties to this agreement further
     agree that matters raised during the negotiations of
     this contract or covered by this contract shall not be
     the subject of bargaining during the term of this
     contract, except by the mutual agreement of the
     parties.

               
DISCUSSION                                         
                                
     The statutory duty to bargain requires the employer and the
bargaining agent "to confer and negotiate in good faith with
respect to wages, hours, working conditions and contract
grievance arbitration."  26 M.R.S.A. § 965(1)(C).  It is a well-
established principle of labor law that the duty to bargain
includes a prohibition against making unilateral changes in a
mandatory subject of bargaining, as a unilateral change is
essentially a refusal to bargain.  See, e.g., Teamsters v. Town
of Jay, No. 80-02 at 3 (Dec. 26, 1980) citing NLRB v. Katz, 369
U.S. 736, 743 (1962), and Lane v. Board of Directors of MSAD No.
8, 447 A.2d 806, 809-10 (Me. 1982).  An employer's unilateral
change "is a circumvention of the duty to negotiate which 

[end of page 11]

frustrates the objectives of [the duty] much as does a flat
refusal" to bargain.  NLRB v. Katz, 369 U.S. at 743.  A change is
unilateral if it is taken without prior notice to the union
involved in order to afford the union "a reasonable opportunity
to demand negotiations" on the contemplated action.  City of
Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982).

     When a collective bargaining agreement is in effect, the
duty to bargain continues with respect to new issues when those
new issues are neither contained in the agreement nor waived in a
zipper clause.  A zipper clause "zips up" the bargaining
obligation for the duration of the agreement for those matters
specified.  The Board's long-standing position is that any waiver
of a statutory right to bargain must be made "by clear and
unmistakable language."  Maine Teachers Assoc./NEA v. State Board
of Education, No. 86-14, at 11-12 (Nov. 18, 1986)(language of
waiver did not clearly cover issue of salaries for newly created
positions); see also State of Maine v. MSEA, 499 A.2d 1228, 1230
(Me. 1985)(the clear and unmistakable language included waiver of
the right to demand bargaining over impact of reorganization). 
      
     There are two distinct harms caused by a unilateral change. 
First, a unilateral change damages the union's ability to
negotiate over terms and conditions of employment and deprives
the employees their collective voice in bargaining over their
working conditions.  Easton Teachers Assoc. v. Easton School
Committee, No. 79-14 at 5 (March 13, 1979) (unilateral changes
undermine the union's authority); Teamsters v. Aroostook County
Sheriff's Department, No. 92-28 at 25 (Nov. 5, 1992)(unilateral
changes without negotiating undermined the union's position in
the mind of employees).  Second, a unilateral change may cause a
direct harm by adversely affecting the condition of employment of
one or more members of the bargaining.  See, e.g., Teamsters 

[end of page 12]

Union Local 340 v. Town of Jay, No. 80-08 at 3 (Jan. 9, 1980)
(unilateral change in shift schedules dramatically affected work
employees' work week).  Even unilateral changes that
unquestionably improve a term of employment are unlawful because
it is still circumventing the bargaining agent.  Council 73,
AFSCME v. Bangor Water District, No. 81-46, at 3, (July 2,
1981)(granting employees the day after Christmas as a new holiday
was an unlawful unilateral change).
        
     The Board has established a three-pronged test for
determining whether an unlawful unilateral change has occurred in
violation of §964(1)(E).  The public employer's action must:  
(1) be unilateral, (2) be a change from a well-established
practice, and (3) involve one or more mandatory subjects of
bargaining.  Teamsters Local Union No. 48 v. Eastport School
Dept., No. 85-18, slip op. at 4, (Oct. 10, 1985). 
      
     The issue presented in this case is whether the change to
the overtime policy implemented by the Employer in the spring of
2011 constituted a unilateral change in violation of 26 M.R.S.A
§964(1)(E).  With respect to the first element in the three-
pronged test, there is no dispute that the Employer's action was
unilateral.  The issue was discussed on several occasions in the
strategic committee meetings, but the parties agreed that those
discussions were not bargaining.  When the Employer first gave
the Union a copy of the draft overtime hiring policy, the Union
president notified the Fire Chief that the change related to a
mandatory subject and needed approval of membership.  The
Employer asserted that bargaining was not required and proceeded
to implement the change unilaterally.
      
     With respect to the second element for determining whether a
unilateral change violates 964(1)(E), there is no dispute that 

[end of page 13]

the change in the procedure for overtime hiring was a change from
a well-established practice as the new procedure used a different
mechanism for notifying employees of overtime opportunities and
ascertaining whether the employee wanted to work.  
 
     The crux of the case before us is whether the change to the
procedure involves a mandatory subject of bargaining.  Clearly,
overtime pay and assignment of overtime is a component of wages. 
One of the Board's earliest decisions held that an overtime
allocation policy is a mandatory subject of bargaining. See
Council 74, AFSCME v. City of South Portland, PELRB Nos. 73-13
and 73-14, at 19-20 (Sept. 28, 1973).  However, the change at
issue in this case did not directly affect the allocation or
availability of overtime--its primary effect was to change the
procedures for determining who was interested in working.  Thus,
the City is correct to state that this case is distinguishable
from the Gardiner and South Portland cases cited by the Union. 
In the Gardiner case, the Board found a violation because the
employer unilaterally changed the procedure for determining who
would get the overtime in certain emergency situations.  The
prior procedure had awarded a minimum of two hours to all who
called in, while the new procedure awarded overtime to only the
first two employees to call in.  Local 2303, IAFF v. City of
Gardiner, No. 05-03, at 14 (March 22, 2005).  In the South
Portland case, the Board concluded the employer made an unlawful
unilateral change which gave officers (members of a different
bargaining unit) more opportunities for overtime work while the
firefighters received fewer opportunities.  Thomas Blake and
South Portland Professional Firefighters Ass'n v. City of South
Portland, No. 94-12 at 10-11 (June 2, 1994).  The change at issue
in the present case did not directly affect the availability of
overtime, but altered the procedures used for communicating with
the employees about overtime opportunities.

[end of page 14]
      
     The standard this Board has used for assessing whether a
particular matter is a "working condition" and therefore a
mandatory subject of bargaining is that it must "materially or
significantly affect the terms or conditions of employment".  IAM
District Lodge #4 v. Wiscasset, No. 03-14 at 7 (Feb. 23, 2004)
(holding that the established practice of allowing employees to
work on their vehicles in the town garage after work hours was a
working condition).  This standard does not include every single
issue related to working conditions that may be of interest to
unions or the employer.  For example, in Teamsters v. Eastport
School Department, the Board held that, absent a change in work
rules, the installation and mandatory use of time clocks was not
a significant or material change in a mandatory subject of
bargaining when the bargaining unit employees were previously
required to manually record their hours on weekly time cards. 
No. 85-18 at 8 (October 10, 1985).  The Board distinguished a
similar case involving time clocks where the National Labor
Relations Board found a violation because the employees had not
previously been required to document their hours (other than
overtime) and the new policy subjected employees to discipline
for failure to use the time clocks.  Id. at 6-7, citing Nathan
Littauer Hospital Ass'n, 229 NLRB 1122 (1977).
      
     Similarly, in a 1982 case involving University employees,
the Board was faced with a complaint that the University's
unilateral increase in parking fees from one dollar to five
dollars was an illegal change to a working condition.  AFUM,
UMPSA, and Assoc. COLT Staff v. Univ. of Maine, Nos. 82-15, 82-16
& 82-22 (Sept. 27, 1982).  The Board held that the parking issue
materially and significantly affected working conditions in light
of the fact that the vast majority of unit employees drove to
work and there was a severe parking shortage, particularly at the 

[end of page 15]

Portland campus of USM.  Id. at 9-10.  The Board rejected the
University's claim that the increase was nominal, noting that
over time the amount could be substantial and "were we to hold
that the parking fee increase is not a mandatory subject of
bargaining, that precedent could lead to substantially higher
unilateral increases in the future."  Id. at 10.  In the same
case, the Board held that an increase in locker rental fees at
the University's gym was not a mandatory subject because, unlike
parking, there was no inherent need for University employees to
use the athletic lockers.  Id. at 11.  The use of the lockers was
not a working condition but was merely a convenience to employees
and others who wanted to avail themselves of the opportunity of
using the athletic facilities.  In another University case, the
Board held that discontinuing the practice of letting campus
police officers assist local police departments in off-campus
matters had no tangible effect on working conditions, therefore
the employer had no obligation to bargain over the effect of the
decision.  Teamsters Local Union No. 48 v. University of Maine,
No. 79-37 at 3 (Oct. 17, 1979).
                                   
THE NATURE OF THE CHANGES TO THE OVERTIME HIRING PROCEDURE
      
     The change at the heart of this case is whether revising the
procedure for notifying employees of available overtime and
determining who was interested in working the overtime is
material and significant enough to trigger the duty to bargain. 
  
     The Employer argues that the new policy does not involve any
change in working condition because there has been no change to
the manner in which overtime is assigned to firefighters nor to
the rules for rotation to the bottom of the overtime list.  The
Employer contends that the only change in the new system is the
mechanism for notifying firefighters of available overtime.  

[end of page 16]

Prior to the change, each firefighter was called individually and
offered overtime in the order dictated by the rotation list. 
After the change, all firefighters are simultaneously sent a text
or email message notifying them of the overtime available.  The
firefighters are required to call in and leave a message if they
wanted to work overtime.  The hiring officer awards overtime to
the top person on the rotation list who responded, and the next
overtime assignment goes to the next highest person on the list
who responded and on down through the rotation list until all
spots are filled.  The significance of the rotation list remained
the same and the rules dictating movement on that list did not
change from the old policy to the new one.  The primary
difference is that under the old system the firefighter had to
answer the phone or quickly respond to a telephone message saying
he was being called for overtime; under the changed system, the
firefighter is required to call the department and leave a
message after receiving the text or email notification.[fn]3 
The Employer emphasizes that the change to the policy does not
involve any working conditions of the firefighters because it is
simply "the way in which the firefighters are called" that has
been changed and that it is merely a "technical or ministerial
change." (Br. at 7.)  
                                        
     The Union argues that the change in the procedure does have
a material and significant effect on the firefighters' working
conditions in two respects demonstrating that the revised policy
is not merely a ministerial change.  First, under the new policy
the burden is on all employees to contact the Department in order
to be eligible for the available overtime; failure to do so 

     3  Under both the old and new system, a firefighter could call in
and leave a message of his intent to accept an offer of overtime
without having received a text or being called by the department.

[end of page 17]

results in a lost opportunity for overtime.  Under the old
system, the burden is on the Employer to make successive calls
strictly following the rotation list, going through the entire
list if necessary.  To receive the overtime work, the employee
was required to answer the phone and say yes or call back
promptly if a message had been left.  Under the new system, the
firefighters wanting overtime had to call in and leave a message,
and the employer need only call enough to fill the available
spots.  Thus, a new condition of receiving overtime is for the
employee to make the call to the Department where that condition
had not previously existed.  Similarly, the discontinuance of the
practice of radio calls to on-duty employees added another burden
requiring those employees to check their cell phone messages
while at work. 
           
     Second, the Union argues that the new policy imposes a
financial burden on those employees who do not own cell phones
that are capable of receiving text messages or who live in a
location with poor or non-existent cell phone reception.  Those
employees would have to call both to find out if overtime was
available and to leave a message that they wanted the work.  One
employee testified that calling the department was a long-
distance toll call.  While it appears that there is only one
employee whose cell phone has these limitations, the change in
procedure might become a consideration for others when replacing
their cell phones as well as for new employees.
 
     There is also a change in how "refusals" are tallied, though
the collective bargaining agreement specifies six as the number
of refusals allowed before an employee is dropped to the bottom
of the rotation list.  Under the old system, if an employee
refused what was offered by the hiring officer on the phone (or
via radio at work), that was a refusal.  Under the new system, a 

[end of page 18]

refusal would occur if the employee had changed his mind by the
time the officer called to fill the OT shift or did not want the
shift that was available.  The evidence presented on whether the
change affected movement on the rotation issue was limited to the
conflicting assertions of two individuals, neither of whom
referred to any data to support their conclusions.  While it is
clear that there is a potential change in movement on the list
caused by the new policy, it is difficult to determine whether
there was an actual change without knowing more about movement
patterns under the prior policies.
 
     
                           CONCLUSION
     
     In light of these arguments and the findings of facts, we
conclude that the Employer's assertion that the change was
"merely" a ministerial change is an over-simplification of the
issue before us.  The Employer implemented a new procedure in
order to take advantage of new technology that would improve its
efficiency.  The new procedure involved some changes that went
beyond the choice of technology used to notify the employees of
overtime opportunities.  Merely labeling something as
"ministerial" skirts the question of whether it "materially or
significantly affects the terms or conditions of employment." 
     
     We conclude that the changes in the overtime hiring policy
did not materially or significantly affect the terms and
conditions of employment to an extent that would subject the
Employer to the duty to bargain.  The "burden" imposed on the
employees of having to check a text message and then call or
notify the Department if interested in overtime rather than
simply answering a phone call is inconsequential.  The "burden"
is not significantly different from the burden under the prior
procedure of being available at the right time frame necessary to 

[end of page 19]

answer the phone or to call back.  Similarly, the requirement for
on-duty employees to check their text messages while at work
similarly does not rise to the level of being a material or
significant change in a working condition.  The new procedure is
consistent with the language in the collective bargaining
agreement that employees "shall be called in proper rotation" for
overtime -the hiring officer stills calls in the proper rotation,
but only calls those who are interested in working overtime.  For
these reasons, we conclude that the Employer did not have a duty
to bargain over the decision to implement the new policy.  
     
     Even though we conclude that the Employer did not have an
obligation to bargain over implementation of the policy itself,
our conclusion is different with respect to bargaining over the
impact of implementing the policy.  In City of Bangor v. AFSCME,
Council 74, the Maine Law Court recognized the distinction
between "impact bargaining" and bargaining over the change which
resulted in the impact.  449 A.2d at 1134-1135 (1982).  In that
case, the Court found that while the union had waived the right
to negotiate over discharges, this waiver did not include the
right to demand bargaining over the impact of discharges.  Id. at
1135.  Three years later, the Court held that the State's
reorganization plans were not only specifically authorized by the
management rights clause, the Union had waived the right to
bargain over the impact of those changes in clear and
unmistakable language in the zipper clause.  State of Maine v.
MSEA, et al., 499 A.2d 1228, 1232 (1985).  More recently, the
Board held that an employer was required to bargain over the
impact of a change in health insurance coverage even when that
decision was made by the insurance carrier and not the employer.
Augusta Fire Fighters, Local 1650, IAFF v. City of Augusta, No.
01-09 (August 10, 2001).  The Board has also held that an 

[end of page 20]

employer was required to negotiate about the impact of the
elimination of a Deputy Chief position even though it was not
required to bargain over the decision itself.  Granite City
Employees Ass'n v. City of Hallowell, No. 05-02 (February 16,
2005).  

     In the present case, the management rights clause was
sufficient to permit the Employer to implement these limited
changes to its overtime hiring policy.  The zipper clause in the
parties collective bargaining agreement, however, only waives
mid-term bargaining on matters raised during negotiation or
"covered by" the contract.  It does not waive the right to demand
bargaining over the impact of the Employer's adoption of a new
overtime hiring policy to the extent it is not already covered by
the contract.  There is undisputed evidence that the new policy
had a negative impact on one individual whose cell phone was not
capable of receiving text messages.  There was a further
suggestion that the new policy had an effect on the frequency of
refusals and consequently the frequency of individuals being
moved down to the bottom of the rotation list.  We need not
conclusively determine that there is an impact because that is a
subject that the parties are best equipped to discuss at the
bargaining table.  As this Board noted in the Augusta Fire
Fighters case with respect to health insurance coverage issues, 
 
     The City's assumption that the Union can articulate no
     impact of the coverage changes on the terms and
     conditions of employment which requires impact
     bargaining may ultimately prove correct. . . However,
     by not meeting with the Union, the City failed to avail
     itself of the opportunity to learn the specifics of the
     Union's arguments and proposals regarding impact.

No. 01-09 at 9-10.

[end of page 21]
                             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 South Portland and its representatives and
agents:

     1. Meet within ten days of receipt of a written demand
     from the Firefighters Local 1476, IAFF, to negotiate
     the impact of the revised Overtime Hiring Policy on the
     terms and conditions of employment of employees in the
     Firefighters Unit.
                              

Dated at Augusta, Maine, this 24th day of May, 2013.

               


The parties are advised of           MAINE LABOR RELATIONS BOARD
their right pursuant to
26 MRSA Section 968(5)(F) 
to seek a review by the
Superior Court of this              /s/________________________
decision by filing a complaint       Susan L. Higgins
in accordance with Rule 80C          Chair
of the Rules of Civil Pro-
cedure within 15 days of the
date of this decision.              /s/________________________
                                     Richard L. Hornbeck, Esq.    
                                     Employer Representative




     Employee Representative Robert L. Piccone filed a separate,
dissenting opinion.

[end of page 22]

                        DISSENTING OPINION
               
     I disagree with the majority opinion that the changes are
inconsequential and therefore not subject to the duty to bargain. 
There is no question in my mind that the changes for individual
unit employees and the bargaining unit as a whole are material
and substantial.  I would therefore require the Employer to
reinstate the previous policy and bargain over both the
implementation and the impact of a new overtime hiring policy. 
 
     The Fire Chief testified that there were 310 days with
overtime in the preceding year and that the overtime budget was
$475,000.  Using the total of 62 firefighters and officers
combined, that amounts to an average of over $7,600 per person in
overtime earnings.  A single missed overtime shift of ten hours
would be over $227 in lost earnings for an employee at the very
bottom of the lowest pay scale.  Thus, any change that affects
how $475,000 of overtime becomes available to employees
materially and substantially affects the terms and conditions of
employment.         
           
     That this issue is significant to both parties is
demonstrated by the fact that they have negotiated a lengthy and
detailed article on overtime which expressly requires employees
to be called in proper rotation.  The first sentence of Article
16(A)(2) states, "Any employee called to fill a staffing vacancy
shall be called in proper rotation from a Regular Overtime posted
roster that reflects the vacancy."  I disagree with the Board's
conclusion that the new procedure complies with this contractual
provision because the language does not allow skipping any
employee--it says employees shall be called in proper rotation
from the roster.  There is no legal or factual basis for 


[end of page 23

concluding that the Employer was authorized to unilaterally
implement a hiring procedure that was inconsistent with the
express terms of the negotiated agreement.

     The majority opinion commits the same error that the Fire
Chief committed in unilaterally implementing the policy at issue
here.  The Chief, having had significant experience on the other
side of the table as a negotiator and President of the Union
Local earlier in his career, took it upon himself not only to
decide what policy design would achieve his stated goals of
efficiency and accuracy, but also how his policy affected working
conditions.  The fact that he accepted "input" from union members
on problems with his policy and made adjustments based on that
input does not make his behavior acceptable or any less of a
unilateral change.  In fact, one of the changes clearly resulted
in a material and substantial change to a working condition.  
A quick comparison of the two latest versions of the policy
indicate an obvious difference--the deadline by which an employee
must call in was changed from 1800 to 1700 hours.  Regardless of
the rationale for this change, it clearly illustrates a
substantial and material change to the conditions in the revised
overtime hiring policy imposed unilaterally by the Fire Chief. 
The Chief was receptive to input and ideas from everyone, but he
insisted on acting unilaterally.  This attitude goes directly to
the heart of the violation of the Act because, like a
straightforward unilateral change, an openness to ideas from
individuals while refusing to negotiate with the Union has a
tendency to erode the status of the bargaining agent.    
 
     The Union is correct to state that the question is not
"whether the new policy is 'better' or 'worse' than the former
policy."  Brief at 3.  The reasonableness of the new policy and
the improved efficiencies are issues relevant to the negotiation 

[end of page 24]

process, but are beyond the scope of an analysis of whether the
employer is obligated to bargain over a subject.[fn]4  The
question before the Board is not the reasonableness of the
policy, but whether the change is a material and substantial
change to a working condition.  In this case, the Chief designed
and implemented a new procedure that affected working conditions
in a variety of ways, both positive and negative, without
negotiating with the bargaining agent of the employees over
either the decision to change the policy or the effects of those
changes on working conditions.     
 
     Beyond the question of whether the new policy is good or
bad, reasonable or unreasonable, the Employer's assertion that
the change was "merely" a ministerial change is a gross over-
simplification of the issue before us.  The new procedure
involved a number of changes that went beyond the choice of
technology used to notify the employees of overtime
opportunities.  The new procedure resulted in various changes
that "materially and substantially" affected the terms or
conditions of employment.  Specifically, these changes include:
the new requirement that the employee call in to indicate his
interest in working overtime instead of just answering a phone
call, the requirement of either having a cell phone capable of
receiving text messages or dealing with the added burden of
calling in each day to find out what overtime shifts will be
offered, the changes in the deadline for indicating interest in
working overtime (even if a beneficial change), the
discontinuance of radio contact with on-duty employees and the 

     4  If this Board were to decide the matter on the basis of the
reasonableness of the policy, the Board would essentially be saying
that an employer is only obligated to bargain over unreasonable
policies.

[end of page 25]

resulting impact on refusal accruals.  Even if none of these
factors individually "materially and substantially affected the
terms and conditions of employment," the combined effect is
significant and sufficient.  The inability to meet the new
condition of having to call the department is potentially a
considerable amount of lost income. 
 
     Furthermore, it appears to be a mathematical impossibility
to conclude that the new procedure did not have any effect on the
frequency of refusals and therefore the frequency of movement to
the bottom of the rotation list.  Under the old policy, when the
hiring officer came to the name of a firefighter who was working,
he would call his work station directly or radio to the officer
in charge.  If we assume that there are ten firefighters on duty
on any given day, that results in ten possible refusals whereas
under the new policy there likely will be fewer refusals,
possibly even none.  This change in the number of refusals slows
the upward movement of someone at the bottom of the list, thereby
reducing his opportunity for overtime.

     Thus, I would find that all three elements necessary for a
finding of an unlawful unilateral change are present in this
case:  the action was unilateral, it was a change from the
established practice, and it involved a mandatory subject of
bargaining because it materially and significantly affected a
term or condition of employment. 
     
     The Employer argues that even if the change is substantial
enough to be considered a changed working condition, the change 

     5  There was no evidence on the number of employees on duty, but
there are three permanent stations manned by firefighters and an
officer.  Ten is a reasonable number for the sake of argument.

[end of page 26]  

made to the overtime hiring policy is consistent with the past
practice of the Employer making adjustments to respond to changes
in technology.  The past changes the Employer cites in support of
this argument were the use of radios and paging systems, then
telephoning without leaving messages, followed by telephoning
with leaving messages.  The Employer contends that the latest
change is consistent with the prior adjustments made in response
to evolving technology, and further asserts that all of the prior 
changes were made without bargaining.  The Union argues that
bargaining did occur over earlier changes, either through simple
agreement or agreed-upon changes as the outcome of a grievance. 
These arguments are really beside the point because the issue is
not what technology is used to notify employees of available
overtime.  The core issue is the procedure for calling back and
indicating an interest and the subsequent calls by the employer. 
The Employer can point to no past practice of any changes to the
sequence in which the Employer made calls to fill the open
positions. 

     The Employer also argues that the use of the term "called"
in Article 16 of the collective bargaining agreement has never
been interpreted so strictly as to preclude the use of other
technologies.  Again, it is not the use of the technology that is
at issue, it is the change in the procedure.  The first sentence
of Article 16(A)(2) states, "Any employee called to fill a
staffing vacancy shall be called in proper rotation from a
Regular Overtime posted roster that reflects the vacancy"
(emphasis added).  The Employer argues that when the overtime
shifts are being filled, the employees are still being called in
the order of the rotation list, it is just that there is no
longer any need to call those who are not interested in the work. 
However, even when there was a practice of paging all employees 

[end of page 27]

giving them a "heads up" of available overtime, the overtime
calls were made "in proper rotation."  There was no previous
practice in which the procedure involved anything other than a
sequential contact with the employees in the order of the
overtime roster in order to find out if they wanted to work.
Again, the new procedure shifts the burden of calling from the
employer to the employee, in spite of the clear language of the
collective bargaining agreement.
      
     The Employer also claims that it was authorized to make the
change by virtue of the management rights clause, citing in
particular the provision listing "the right to establish
reasonable rules" and the freedom to determine "materials to be
used, the work schedules and methods of operation."  This
argument is without merit as this Board has long held that for a
waiver to be effective, it must be "clear and unmistakable."
Council No. 74 AFSCME v. City of Bangor, No. 80-41, at 9-10
(Sept. 24, 1980), aff'd, 449 A.2d 1129 (Me. 1982).  Given the
prefatory words in the management rights provision, Article 12
(A)(1), "except as otherwise provided in this Agreement," and the
specific language of the overtime provision in Article 16(A)(2),
"Any employee called to fill a staffing vacancy shall be called
in proper rotation from a Regular Overtime posted roster," there
is no basis for finding a clear and unmistakable waiver with
respect to the new policy.  To allow an employer to use the
improved efficiencies of new technology as an excuse to ignore
the duty to bargain would push collective bargaining down a
slippery slope in which the question turns to an assessment of
the reasonableness of a new technology, rather than its impact on
working conditions.  This has the effect of putting the Board at
the bargaining table without a whit of statutory authority for
such a role.

[end of page 28]
     

     For the forgoing reasons, I would conclude that the Employer
violated §964(1)(E) by unilaterally changing the overtime hiring
policy. I would therefore require the Employer to reinstate the
previous policy and bargain over both the implementation and the
impact of a new overtime hiring policy.




                                   /s/________________________ 
                                   Robert L. Piccone
                                   Employee Representative

[end of page 29]