Order Clarification Jan. 2, 2013 (clarification of Board's Nov. 15, 2012, Decision and Order)

 

 

	  
	       This prohibited practice complaint, filed by Local 1373,
Council 93, American Federation of State, County and Municipal
Employees, AFL-CIO ("AFSCME" of "Union") on December 9, 2011,
charges that the City of Portland ("City" or "Employer") violated
the Municipal Public Employees Labor Relations Law ("Act"), 26
M.R.S.A. §964(1)(E), by unilaterally splitting a vacant full-time
permanent bargaining unit position into two part-time bargaining
unit positions.  Specifically, the Employer made this change
without having first given the Union notice of its intent to do
so and refused to negotiate with the Union prior to implementing
the change.  The complaint also charges that the Employer's
statements and conduct interfered with, restrained and coerced
employees in the exercise of their rights guaranteed in §963 in
violation of §964(1)(A).     

     A prehearing conference was held on March 26, 2012, Board
Chair Peter T. Dawson presiding.  Numerous stipulations and six
joint exhibits were presented by the parties and admitted into
the record.  Since it appeared likely that the record could be
stipulated, obviating the need for an evidentiary hearing, the
parties were ordered to confer and attempt to reach such agree-
ment.  Chair Dawson issued a Prehearing Conference Memorandum and


[end of page 1]

Order on April 12, 2012.  On May 2, 2012, the parties presented a
partial stipulated record and agreed to submit affidavits on the
narrow issues of fact remaining to complete the record.  The
Union submitted an affidavit by Cynthia PeBenito, dated May 17,
2012.  The City submitted an affidavit by Thomas Caiazzo, dated
June 1, 2012, together with a list of food service employees who
work at the Barron Center, designated as Exhibit A.  The Union
submitted a response affidavit by James Breslin, dated June 13,
2012.  

     Since the admissibility of Exhibit A noted above was unclear,
the Executive Director of the Board convened a conference call
with the parties on July 20, 2012, to discuss the admission of 
the exhibit, possible additional stipulations, and a briefing
schedule.  The parties subsequently agreed to the following:
                                                            \
     The Exhibit A to Tom Caiazzo's affidavit will be
     admitted with a modification.  Consistent with para-
     graph 4 of James Breslin's Affidavit dated June 13,
     2012 filed by the Union, those Support Team Workers who
     only work 0.4 FTE are not union members.  Therefore,
     the attached exhibit crosses off the CEBA designation
     for the employees who work 0.4 FTE.  This will be the
     Exhibit A which becomes part of the record.  
     
     Throughout the proceedings, the Union was represented by
Erin DeRenzis, Esq., and the City was represented by Ann Freeman,
Esq.  The parties' briefs and reply briefs were all filed by
October 9, 2012.  The Board, consisting of Chair Katharine Rand,
Employee Representative Wayne Whitney, and Employer Representa-
tive Karl Dornish, met on October 19, 2012, to deliberate on this
matter.   

                           JURISDICTION

     AFSCME, Council 93 is the bargaining agent for certain
employees in a bargaining unit at the City of Portland.  AFSCME
is the bargaining agent within the meaning of 26 M.R.S.A.  

[end of page 2]

§ 962(2), and 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 this decision and order lies in 26
M.R.S.A. §968(5)(A)-(C).

                         STIPULATED FACTS

     1.  The Barron Center is a skilled nursing care facility
owned and operated by the City of Portland; certain employees at
the Barron Center are members of the Union.

     2.  The Respondent is a public employer.

     3.  AFSCME, Council 93 is the bargaining agent for certain
employees working for the City of Portland.

     4.  The Respondent and the Union are parties to a Collective
Bargaining Agreement covering the period of January 1, 2010
through June 30, 2012. (Jt. Ex. 1).

     5.  The Union is the sole and exclusive representative for
employees working within the Barron Center General Kitchen under
the Health and Human Service Department who are covered by the
parties' collective bargaining agreement.

     6.  On or about July 15, 2011, Denise See, a full time Food
Service employee at the Barron Center, covered under the parties
Collective Bargaining Agreement, resigned from her position.

     7.  At that time, numerous bargaining unit employees working
in the Barron Center General Kitchen were expecting (having a
more desirable work schedule) and that the position vacated by
Ms. See would be posted in accordance with Article 29 (Filling of
Job Vacancies) of the parties' Collective Bargaining Agreement. 

     8.  In July 2011, the Union began to inquire on the status
of the vacant position.

[end of page 3]

     9.  On July 21, 2011, the Union President, Dan McDuffie, was
provided with an explanation of the status of the vacant position
by Barron Center Administrator, Karen Percival.  She explained
that the permanent full-time position had been split into two
part-time positions.  (Jt. Ex. 2 and 2A).

    10.  On or about July 29, 2011, the Employer posted the two
part-time positions on the City of Portland JOBS webpage.

    11.  Prior to the change to the vacant position in the
General Kitchen, the Union was not provided with notice and
opportunity to bargain any proposed change to the vacant
full-time position.

    12.  On August 9, 2011, the Union placed this item on its
agenda for their monthly Labor Management meeting.  (Jt. Ex. 3).

    13.  On September 13, 2011, the item remained on the Union's
agenda at the monthly Labor Management meeting. (Jt. Ex. 4).

    14.  On September 26, 2011, Employee Labor Manager Tom
Caiazzo notified the Union that it was willing to impact bargain
the issue.  (Jt. Ex. 5).

    15.  On October 6, 2011, at the parties' monthly Labor
Management meeting, the Union discussed the offer of the City to
impact bargain.  (Jt. Ex. 6).

    16.  On October 6, 2011, the Union requested "status quo"
concerning the full time position in question.

    17.  The City informed the Union it would not return to
"status quo."

    18.  The City admits that the Union represented the employee
who vacated the position at issue in this case.

[end of page 4]

    19.  When the City decided to split the position into two
part-time positions, the position was vacant.

    20.  The Union represents the two employees who filled the
part-time positions (after the expiration of their probationary
period).

    21.  The City admits that it did not bargain over splitting
the position.

                         FINDINGS OF FACT

     1.  Article 2 of the Parties' Collective Bargaining
Agreement incorporates Appendix A of the Agreement and provides
that the recognized bargaining unit includes both full-time and
permanent part-time employees in the Support Team Worker
classification in the Food Service Department at the Barron
Center.

     2.  Appendix B-4 of the parties Collective Bargaining
Agreement notes that the standard work week for full-time
employees in the Support Team Worker classification in the Food
Service Department at the Barron Center is 37.5 hours per week.

     3.  Appendix A of the parties Collective Bargaining
Agreement provides that part-time employees regularly scheduled
to work 18.75 hours per week (.5 full-time equivalent, "FTE") but
less than 37.5 hours per week receive certain specified benefits
on a pro-rated basis.  Part-time employees regularly scheduled to
work less than 18.75 hours per week are not entitled to receive
such benefits.

     4.  Although they perform bargaining unit work, employees in
the Food Service Department regularly assigned to work on a .4
FTE basis are not benefit-eligible nor do they pay Union dues or
a Union service fee.  If awarded a position with a greater number 

[end of page 5]

of hours, such employees are awarded seniority from their initial
date of hire. 

                            DISCUSSION

     The statutory duty to engage in collective bargaining 
established by § 965(1)(C) of the Act is the mutual obligation of
the employer and the bargaining agent "to confer and negotiate in
good faith with respect to wages, hours, working conditions and
contract grievance arbitration."  A corollary to the duty to
bargain is the prohibition against the employer's making uni-
lateral changes in a mandatory subject of bargaining, since a
unilateral change is essentially a refusal to bargain.  Maine
State Employees Association v. Lewiston School Department, No.
09-05, slip op. at 6 (Jan. 15, 2009), aff'd on other grounds, 
City of Lewiston School Department v. MSEA and MLRB, No. AP-09-001
(Me. Super Ct., And. Cty., Oct. 6, 2009).  Board citing Teamsters
v. Town of Jay, No. 80-02, at 3 (Dec. 26, 1980), 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).  
                                                            
     Three elements are required to constitute an unlawful
unilateral change.  The first is that the employer's action must
be unilateral, that is, it must have been taken without prior
notice to the bargaining agent sufficient to permit the latter to
request bargaining over the contemplated change.  City of Bangor
v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982).  The
parties have agreed that, after the full-time Support Team Worker
position became vacant as a result of Ms. See's resignation, the
City decided to split the position into two part-time positions
and only notified the Union after the decision had been made. 
Faced with this fait accompli, the Union demanded bargaining over
the decision and the City refused to negotiate.  These facts
establish that the charged conduct was a unilateral decision by 

[end of page 6]

the City.   

     Second, the action must be a change from a well-established
practice.  Teamsters v. Town of Fort Fairfield, MLRB No. 86-01,
at 9 (Jan. 24, 1986).  The parties stipulated that, prior to 
Ms. See's resignation, the position she occupied was a full-time
position.  
 
     Third, the action must involve one or more of the mandatory
subjects of bargaining.  Bangor Fire Fighters Association v. City
of Bangor, No. 84-15, at 8 (Apr. 4, 1984).  The test we use to
determine if something is a mandatory subject of bargaining is
whether the action at issue "significantly and materially related
to 'wages, hours, working conditions and contract grievance
arbitration.'"  Portland Firefighters Association v. City of
Portland, No. 83-01, at 4 (June 24, 1983) aff'd, 478 A.2d 297
(Me. 1984).  The charged conduct directly involved the hours of
the bargaining unit positions involved, a mandatory subject of
bargaining. 

     While essentially admitting that it made a unilateral change
in a mandatory subject of bargaining, the City avers that
"[s]plitting a vacant, full time position does not affect the
bargaining unit employees' rights or their jobs in any way
whatsoever" because the position was vacant at the time.  Brief
on behalf of the City at 6-7.  In MTA/NEA v. State Board of
Education, No. 86-14 (Nov. 18, 1986), the employer created two
new classifications, assigned them to a bargaining unit
represented by the Complainant, unilaterally assigned them salary
levels, and refused to negotiate over the salary levels. 
Addressing one of the defenses to the refusal to bargain charge
raised by the employer, the Board stated: 

[end of page 7]

          
          The State advances by way of defense to the
     Association's charge of prohibited practices that "no
     employee represented by the Association is adversely
     affected" by the assignment of initial salary levels in
     this case because "the Association may not bargain on
     behalf of new employees in the first six (6) months of
     their employment."  This argument is unpersuasive. 
     Although the record establishes that appointments for
     employees to fill the positions in question occurred on
     [specific dates within the statutory period of
     limitations], it fails to establish whether the
     employees so appointed had worked for the employer in
     any other capacity prior to undertaking employment in
     the newly-created classifications.  Additionally, the
     State's refusal to negotiate salary levels was
     categorical and constituted a refusal to negotiate
     salary to be paid public employees of the employer who
     might laterally transfer to fill vacancies in such
     positions.  In any event, the State refused to bargain
     and unilaterally established for these positions a
     salary schedule that was applicable well beyond the
     first six months of employment. 

No. 86-14, at 9-10.  Like the salary schedules at issue in State
Board of Education, the change of status of the position at issue
from full to part time will continue to be experienced by
bargaining unit employees when the positions are filled and the
incumbents complete their initial six months of employment with
the City; therefore, a unilateral change in the length of the
standard work week of the Team Support Worker position formerly
held by Ms. See violated the statutory duty to bargain.[fn]1  
     
     The final point raised by the City is that the decision
regarding how the Barron Center serves the noontime meal to its

     1 Two other cases, Maine State Employees Association v. Maine Maritime
Academy, MLRB No. 05-04 (Jan. 31, 2006), and Maine School Administrative
District No. 45 v. MSAD No. 45 Teachers Association, MLRB No. 82-10 (Sept. 17,
1982), are consistent with the principle that unilateral changes in the
mandatory subjects of bargaining regarding vacant bargaining unit positions
violate the statutory duty to bargain; however, since these cases involve
direct dealing between the employer and a present or future bargaining unit
employee, we did not choose to rely on them in reaching our conclusion.

[end of page 8] 

residents (the impetus for splitting the position) is within the
employer's discretion and is not subject to mandatory bargaining.
The City argues that, even if splitting the vacant position
affected wages, hours or working conditions, "the contract
includes, and the law recognizes exceptions to bargaining when
they are within the rights of management," including "managerial
decisions which lie at the core of the entrepreneurial control"
and "which are fundamental to the basic direction of a corporate
enterprise and which impinge only indirectly upon employment
security."  Brief on behalf of the City at 7-8.  The decision of
how lunch is served at the Barron Center is not the issue in this
case.  The question presented is whether the City violated the
Act by splitting a vacant full-time bargaining unit position into
two part-time bargaining unit positions, without first giving the
bargaining agent notice and an opportunity to request negotia-
tions over the decision.  As we have previously noted in Coulombe
and South Portland Professional Firefighters v. City of South
Portland, No. 86-11, at 12 (Dec. 29, 1986), there is no statutory
management prerogative exception to the duty to bargain over an
issue that is "significantly and materially related to 'wages,
hours, working conditions and contract grievance arbitration.'"

     We conclude that the City violated the statutory duty to
bargain by splitting a full-time bargaining unit position into
two part-time positions, in violation of § 964(1)(E) of the Act. 
We also hold that the City's unilateral change in the hours of
the position at issue constitutes interference, restraint and

     2  Although there is a reference to the collective bargaining agreement
in the brief on behalf of the City at 7-8, neither party argued whether or, if
so, how the agreement addressed the splitting of a full-time bargaining unit
position into two part-time positions.  The record fails to disclose whether 
a grievance was filed in connection with the issue in this case and neither
party requested that the Board defer to the grievance arbitration process.

[end of page 9] 

coercion as a derivative violation of § 964(1)(A) the Act. 
Unilateral changes inherently interfere with the free exercise of
the right of employees to engage in collective bargaining.  See,
e.g., Coulombe, supra, at 25, Lane v. MSAD No. 8, 447 A.2d at
810.

     Having concluded that the City has engaged in a prohibited
practice, § 968(5)(C) directs that we order the City "to cease
and desist from such prohibited practice and to take such
affirmative action, including reinstatement of employees with or
without back pay, as will effectuate the policies of this
chapter."  A properly designed remedial order seeks "a
restoration of the situation, as nearly as possible, to that
which would have obtained" but for the prohibited practice. 

                              ORDER
     
     On the basis of the foregoing 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 ORDERED:

     That the City of Portland, and its representatives and 
     agents:

     1.  Cease and desist from splitting full-time           
         bargaining unit positions into two part-time        
         bargaining unit positions, without first notifying  
         the bargaining agent of the bargaining unit that    
         includes such positions of its intention to do so   
         and, upon request, negotiating over any such        
        decision.

     2.  Restore the Support Team Worker position in the 
         Food Service Department at the Barron Center, 
         formerly occupied by Denise See, to 37.5 hours 
         per week and fill said position through the 
         process established by the parties' collective           
         bargaining agreement.

     3.  Should the City contemplate splitting this full-time     
         position into two part-time positions, it must give

[end of page 10]

         the Union notice of its intention and, upon request,     
         negotiate over the decision to divide the position 
         as required by § 965(1) of the Act.
     
     4.  Notify the Executive Director, in writing, within 
         30 days from the date of this order, of the steps 
         that have been taken to comply with this order.

Dated at Augusta, Maine, this 15th day of November, 2012.
 
	  

 

----------------------------------- --------------------------- ------------------------------------ ---------------------

 

	  On November 15, 2012, the Maine Labor Relations Board
("Board") issued its Decision and Order, resolving the
controversy in this matter.  On December 13, 2012, Counsel for
Respondent, City of Portland ("City"), filed a request for
clarification of the Board's intent in paragraph 2 of its Order,
which directed the City to:

     Restore the Support Team worker position in the Food
     Service Department at the Barron Center, formerly
     occupied by Denise See, to 37.5 hours per week and fill
     said position through the process established by the
     parties' collective bargaining agreement.

     The City averred that this paragraph was ambiguous and
presented two plausible interpretations of the language used by
the Board:

     The first is that the City must put the full-time
     Support Team position back "on the books" but may leave
     that position vacant because it was vacant at the time
     the City split it into two positions and because there
     is nothing in the collective bargaining agreement that
     requires the City to fill vacant positions.  The second
     is that the City must not only put the full-time
     position back "on the books" but must hire someone to
     fill that position. 

The Complainant, AFSCME Council 93, was accorded the opportunity
to be heard regarding the merits of the City's request for 
clarification and opted not to be heard.  The City's request was
forwarded to the Board for their review.  The members unanimously 

[end of page 1]

agreed that, pursuant to the authority granted in 26 M.R.S.A. 
§ 968(5)(C), the intent of paragraph 2 was the restoration of the
status quo ante, relief which the Complainant sought.  The 37.5
hour Support Team position, which was vacant just prior to the
City's unlawful act, must be reinstated.  The future staffing of
that position, as well as that of the two part-time positions
created by splitting the full-time position, are issues for the
parties to resolve in accordance with the terms of their
collective bargaining agreement.       

Dated at Augusta, Maine, this 2nd day of January, 2013.

                                   MAINE LABOR RELATIONS BOARD