STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-08
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)
TEAMSTERS LOCAL UNION NO. 48. )
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY WORKERS IN THE )
STATE OF MAINE, )
)
Complainant, )
)
v. )
)
TOWN OF JAY ) DECISION AND ORDER
)
and its )
)
TOWN MANAGER, MICHAEL )
HOULIHAN, )
)
Respondents. )
________________________________)
On October 11, 1979, Teamsters Local Union No. 48 ("Local 48") filed a
prohibited practice complaint against the Town of Jay and its Town Manager,
Michael Houlihan ("Town"). The Town filed an answer to the complaint on
November 1, 1979.
A pre-hearing conference on the case was held November 13, 1979,
Alternate Chairman Donald W. Webber presiding. As a result of the pre-hearing
conference, Alternate Chairman Webber issued on November 13. 1979 a Pre-
Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
A hearing on the case was held December 5, 1979, Chairman Edward H.
Keith, presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. At the conclusion of the hearing,
the parties engaged in oral argument of the case. The Board proceeded to
deliberate over the case at a conference held after the hearing on December 5,
1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this case, and we conclude that this Board has jurisdiction
to hear the case and render a decision as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Teamsters Local Union No. 48 is a public employee labor organization
and bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B).
The Town of Jay and its Town Manager are public employers within the
meaning of 26 M.R.S.A. 968(5)(B).
2. Local 48 was certified as the bargaining agent for a bargaining unit
composed of Patrolmen and Dispatchers in the Jay Police Department at
a decertification/certification election held February 1, 1979. The
Town filed objections to the election, and, after a hearing on the
objections, the Board on May 15, 1979 dismissed the objections and
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affirmed the certification of the election. The parties com-
menced negotiations for a collective bargaining agreement for
the Patrolmen and Dispatchers in June, 1979. Agreement has
not yet been reached, and negotiations are continuing.
3. On September 28, 1979, one of the four Patrolmen employed by the
Department submitted his resignation to the Chief of Police, to
be effective as of October 3, 1979. The Chief informed the Board
of Selectmen of the resignation. At an October 1, 1979 meeting,
the Selectmen decided that changes in the shift schedule would have
to be made until a fourth patrolman was hired. The Selectmen
ordered the Chief to implement the changed shift schedule that
evening. No effort was made to contact Local 48 about the impending
scheduling change.
4. Prior to October 1, 1979, the Chief assigned each Patrolmen to shifts
totalling 40 hours per week. Each Patrolman was assigned to work 5
days per week, with 2 days off. These assignments were made 1 to 2
weeks in advance. All unassigned shifts and special events requiring
police services were then posted on a Police Department bulletin
board. Any Patrolman or part-time officer who wished to work the
unassigned shift or special event would signify his intention to work
the shift or event by penning in his name on the posted schedule.
The Police Department employs approximately 8-10 part-time officers.
5. The "posting and bidding" procedure for filling unassigned shifts and
special events was used regardless whether there were 3 or 4 Patrol-
men working during a particular week. On occasion there would be
only 3 Patrolmen on duty during a week, as the fourth Patrolman would
be on vacation, at the reserves, or would be absent for some other
reason. The shifts which would have been assigned to the absent
Patrolman were posted for bidding along with all other unassigned
shifts and events. The Chief has never experienced major difficulty
filling open shifts through the posting and bidding procedure, even
when there were only 3 Patrolmen on duty. On those few occasions
when no Patrolman or part-time officer signed up for an unassigned
shift or event, the Chief of Police would call the Sheriff's Depart-
ment and arrange for a deputy sheriff to cover the shift or event.
Occasionally, an individual who signed up for a shift "canceled out"
shortly before he came on duty. In that event, the Patrolman or
part-time officer who was on duty stayed on duty for the next shift
as well.
6. The changed schedule which the Chief posted on the evening of October
1, 1979, assigned each of the 3 remaining Patrolmen to seven shifts
for the upcoming week. The effect of the change in schedules was
that each Patrolman's work week was increased from 40 to 56 hours,
and the posting and bidding procedure was in effect eliminated. In
addition, there were no scheduled days off for the Patrolmen. The
Patrolmen could get a day off if they could find a replacement, but,
failing that, they were required to work seven days per week. The
shift schedule implemented on October 1, 1979 has remained in effect
to date.
7. The Patrolman on duty the evening of October 1, 1979 was the job
steward for the Patrolmen and Dispatchers bargaining unit. When the
Chief posted the new schedule, the Patrolman protested about the
change in schedules, stating that he would have to file a prohibited
practice charge if the new schedule was followed. The Chief when he
arrived at the Police Department the next morning was confronted by
a second Patrolman, who vehemently protested the change in schedule.
The steward subsequently discussed the change in schedules with the
Chief, telling the Chief that the Patrolmen were dissatisfied with
the new schedule. The Patrolmen contacted Local 48 about the
schedule change, and on October 9, 1979 the Town received the
prohibited practice complaint instituting this case.
8. Ten persons have applied for the vacant Patrolman's position. The
Town has not yet interviewed any of these applicants. The Chief of
Police has recently been contacted by a former Patrolman who
presently is on military duty. The former Patrolman informed the
Chief that he may be released from the military in early 1980, and
would like to return to his Patrolman's Position in the event of his
release.
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DECISION
Local 48 charges that the Town violated 26 M.R.S.A. 964(1)(A) and (E)
by unilaterally changing the shift schedule without bargaining with the
Patrolmen's bargaining agent. The Town concedes that it unilaterally changed
the schedule, but argues that its failure to bargain about the change is
justified by the emergency situation created by the resignation of a Patrol-
man. We find that the unilateral change is not justified by the business
exigency exception to the rule prohibiting unilateral changes in wages, hours
and working conditions, and order remedies necessary to effectuate the
policies of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq. ("Act").
The prohibition of an employer's unilateral changes in wages, hours and
working conditions is well known. See, e.g., N.L.R.B. v. Katz, 369 U.S. 736
(1962); Lake Teachers Association v. Mount Vernon School Committee, MLRB No.
78-15 (1978). The rule prohibiting unilateral changes in the terms and con-
ditions of employment is fully discussed in Teamsters Local 48 v. Town of Jay,
MLRB No. 80-02 (1979), and need not be repeated here. Suffice it to say that
employer changes in the mandatory subjects of bargaining specified in Section
965(1)(C) constitutes a per se violation of Section 964(1)(E), when the
employer does not first negotiate the changes with the employees' bargaining
agent.
The Town's unilateral change in the shift schedule plainly had an
immediate and drastic effect on the Patrolmen's hours and working conditions.
By assigning each Patrolman to seven shifts per week instead of the usual
five shifts, the Town increased the work week from 40 to 56 hours. The new
schedule required the Patrolmen to work seven days per week with no days off,
unless the Patrolman could find a substitute. The "bidding and posting"
procedure for filling open shifts, which previously had been followed even
when only 3 Patrolmen were on duty, was in effect eliminated. The change in
schedules was a "unilateral" act on the part of the Town, as no effort was
made even to contact, let alone negotiate with, Local 48 regarding the change.
The Town argues, however, that its unilateral change in hours and working
conditions was justified because a business emergency existed. Because a
Patrolman had resigned, the Town contends, the Town could unilaterally change
the shift schedule so as to provide 24-hour police protection. We have
recognized a limited "business exigency" exception to the rule prohibiting
unilateral changes, but:
"Mere business 'reasons' for the unilateral change are not
sufficient to immunize the change. We envision an 'exigency'
as a sudden, out-of-the-ordinary event threatening serious
harm and requiring immediate managerial action."
Maine State Employees Association v. State of Maine, MLRB No. 78-23 at 4
(1978); see also M.S.A.D. No. 43 Board of Directors v. M.S.A.D. No. 43
Teachers Association, MLRB Nos. 79-36, et al. at 20 (1979).
The resignation of the Patrolman was hardly a sufficient business
emergency to justify the Town's long-term implementation of the shift change.
The Department had provided 24-hour protection under the "post and bid"
procedure prior to October 1, 1979 when only 3 Patrolmen were on duty. There
is no reason to believe
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that it could not have continued to provide the required protection through
the procedure after the resignation.
Since the resignation came on fairly short notice, the Town was justified
in assigning the Patrolmen to 7 shifts per week for a week or two, to provide
the Chief sufficient time to post and take bids for the additional open
shifts. That was the procedure which had been successfully followed in the
past when only 3 Patrolmen were available for assignments. The Town did not
revert to the "post and bid" procedure once the Chief had time to post the
additional unassigned shifts, however. Instead, it ignored the procedure, and
has continued to date its rather draconian scheduling of the Patrolmen to work
seven days per week.
Had the Town tried to use the "post and bid" procedure, and found con-
trary to past experience that it was inadequate to provide sufficient
protection, then our conclusion might be different. But where the Town has
ignored the procedure, and there is no reason to believe that the procedure
would not continue to provide sufficient manpower, we must conclude that
there was no business emergency after the first week or so to justify the
change in schedules. We accordingly find that the Town's unilateral change
in the shift schedule constitutes a per se violation of Section 964(1)(E).
The Town's unilateral change also constitutes a violation of Section
964(1)(A). The unilateral change did reasonably tend to interfere with and
coerce the Patrolmen in the free exercise of their Section 963 rights,
especially since there was no reason for the Town not to revert to "posting
and bidding" within a week or so after the resignation. See Teamsters Local
48 v. Town of Jay, supra. Such restraint and interference with the Patrol-
men's organizational and bargaining rights violates Section 964(1)(A).
We also note that the Town of Jay now has been found to have made four
unlawful changes in the Patrolmen's wages, hours and working conditions since
Local 48 was elected the Patrolmen's bargaining agent. See Teamsters Local
48 v. Town of Jay, supra. Among these changes was a change in the shift
schedule identical to the change at issue here, made for a two-week period in
July and August, 1979. Had our decision and order in Case No. 80-02 been
released at the time of the October 1, 1979 shift schedule change, we would
exercise our full remedial authority to remedy the violations found in this
case.
We consider that the Town now has been placed on sufficient notice that
it must not change the Patrolmen's wages, hours and working conditions without
first bargaining the change with Local 48. We will treat any further uni-
lateral changes by the Town as a most serious matter.
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, it is hereby ORDERED:
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That the Town of Jay and its Town Manager Michael Houlihan,
and their representatives and agents,
1. Cease and desist from changing any aspect of
the Patrolmen's wages, hours, and working
conditions without first bargaining the
change with the Patrolmen's collective bar-
gaining agent.
2. Reinstitute immediately the practice of
scheduling the Patrolmen for 40 hour work
weeks, with all unassigned shifts and events
being posted for bids by the Policemen and
the part-time officers.
3. Post copies of the attached notice on all
bulletin boards in the Police Department for
a period of 60 consecutive days.
Dated at Augusta, Maine this 9th day of January, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL stop changing the Patrolmen's wages, hours, and working condi-
tions without first bargaining with the Patrolmen's collective bargaining
agent.
(2) WE WILL immediately reinstate the practice of scheduling the Patrolmen
for 40-hour work weeks, with all unassigned shifts being posted for bid.
TOWN OF JAY
Dated _______________ By ________________________________________________
(Representative) (Title)
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
Defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone
289-2016.