STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-22
_______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF LIVERMORE FALLS, )
)
Respondent. )
_______________________________)
Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine (Union) filed this complaint on December 21,
1979. The complaint alleges that the Town of Livermore Falls violated 26
M.R.S.A. Sec. 964(1)(A) by unilaterally changing the police department patrol-
men's work schedule, by assigning the Chief of Police to additional patrol
officer shifts, and by eliminating the use of an "overlap" shift. The Town
responded on January 11, 1980, that it was consistent with past practice for
it to exercise unilateral control in these areas.
Alternate Chairman Donald W. Webber held a pre-hearing conference and
issued a Pre-Hearing Conference Memorandum and Order on Februarv 19, 1980,
the contents of which are incorporated herein by reference. A hearing was
held on April 23, 1980, before the Maine Labor Relations Board (Board),
Chairman Edward H. Keith presiding, with Employee Representative Wallace J.
Legge and Employer Representative Don R. Ziegenbein. All parties were
afforded full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and to file briefs.
The Union was represented by Richard R. Peluso, International Representative;
the Town by Samuel J. Quattrocchi, Negotiator. The Union made oral argument
at the close of the hearing. The Town ordered a copy of the transcript,
after which it submitted a brief. Both parties filed reply briefs.
JURISDICTION
Jurisdiction of the Board to hear and decide this case lies in Section
968(5) of the Municipal Public Employees Labor Relations Law (Act), 26
M.R.S.A. 968(5).
FINDINGS OF FACT
Upon the entire record, and from our observation of the witnesses and
their demeanor, we find:
1. The Town is a public employer within the meaning of 26 M.R.S.A.
968(5), 962(7), and 964(1); the Union is a public employee
organization and a bargaining agent within the meaning of 26
M.R.S.A. 968(5)(B) and 962(2).
2. In 1976 the Town Police Department employed five patrolmen.
-1-
______________________________________________________________________________
It also scheduled a reserve officer to work a full, eight-hour,
"overlap" shift from four hours before until four hours after
midnight on virtually every day of the year. Thus, for at least
these eight hours, two officers were on duty. The Town owns
two police cruisers.
3. In February 1978, the Town agreed on an appropriate bargaining
unit for bargaining with the Livermore Falls Police Association,
(LFPA) and voluntarily recognized the LFPA as the bargaining agent.
The unit included Patrol Officers and Dispatch Officers. Also in
1978, the department was reduced to four regular patrol officers.
In August 1978, the Police Chief began working regular patrol shifts
on Mondays and Tuesdays from 8:00 a.m. to 4:00 p.m. He was on duty
alone at those times.
4. As the result of a decertification and bargaining agent election on
February 1, 1979, the LFPA was decertified and the Union was certi-
fied as the new bargaining agent. By this time, the Town was only
scheduling the overlap shift on two or three days a week in the
winter.
5. In March 1979, while the Department budget was being discussed by
Town officials, the possibility of putting the Chief on a regular
patrol schedule was raised. When the Union heard about this pros-
pect, Peluso called Town Manager Paul Soucie to warn him that he
would file a prohibited practice complaint if this were done. The
Town did not take any action at that time.
6. The parties stipulated that they reached an impasse in negotiations
on October 3, 1979. The Town's bargaining proposals in the record
were the following:
"Article 5. Functions of Management
It is agreed that except as specifically delegated,
abridged, granted or modified by this agreement, all
the rights, powers, and authority the Town had prior
to the signing of this agreement are retained by the
Town and remain the exclusive right of management
without limitation."
"Article 8. Supervisory Personnel
Supervisory personnel may perform work outside of their
normal duties whenever assigned to do so by the Town at
such times that qualified bargaining unit employees are
not available."
"Article 19 - HOURS OF WORK
The regular work week of the Police Department employees
is five (5) work days, each day consisting of eight (8)
consecutive hours of work within the twenty-four (24)
hour work day.* The regular work week will be from Sunday
through and including Saturday. The normal work day presently
commences at 12:01 a.m. and ends at 12:00 p.m. When occasions
warrant the changing of the regular work day hours and shift
assignment the Town reserves the right to put such changes
into effect after notifying and meeting with the Union."
(footnote omitted).
7. Article 5 was tentatively agreed to at about the time of impasse.
Article 19 was tentatively agreed to at a mediation session on
November 28, 1979.
8. On October 23, 1979, while the parties were at impasse, one of the
four Patrol Officers submitted his resignation, effective November
12, 1979. The Town was also aware that another Patrol Officer was
looking for other work and might be resigning at some point.
-2-
______________________________________________________________________________
9. On November 7, 1979, Town Manager Soucie, wrote a letter to
Union representative Peluso advising him of "decisions arrived
at by the Board of Selectmen which will be implemented and made
effective on [Monday] November 12, 1979." The changes were
the following:
(1) The work schedule of 7 days on duty followed by
two days off would change to a schedule of 5
days per week on duty.
(2) The Police Chief's schedule would change to regular
patrol officer duty during the 8:00 a.m. to noon
period and administrative (police chief) duty
during the noon to 4:00 p.m. period, on Monday
through Friday. No patrol officer would be on
duty during these 40 hours.
(3) No patrol officer would be scheduled from 8:00
a.m. to 4:00 p.m. on Sundays.
(4) The overlap shift would be discontinued.
The letter claimed that these changes were not inconsistent with
any of the Town's existing bargaining proposals or tentative
agreements.
10. It is unclear when Peluso received the letter. Soucie, however,
left Town on November 9th until the 19th. When Peluso called to
object to these changes, Soucie had already left.
11. On November 16, 1979, the Town's first of several newspaper advertise-
ments for a patrol officer was published. Although it was not yet
clear to the Union at this point that the Town had decided to main-
tain only three officers, that prospect was suggested in the letter
and the Town did not subsequently employ four patrol officers. On
March 12, 1980, when the next year's police department budget was
submitted, only three officers were provided for. The decision to
remain at this level was firm by January 1980.
12. A second resignation was also submitted. It was effective on December
9th. As a result, by mid-December the force had been reduced to only
two patrol officers. In December and January 1980, Patrol Officer
Keene was on sick leave for six weeks leaving only one active patrol
officer, although a new officer was hired and then terminated around
this time. During this period the Chief worked a number of patrol
officer shifts during which he was paid straight time although they
were beyond 40 hours per week. This pay was less than that paid to
a patrol officer on overtime pay. Police coverage was presumably
provided for in this period by liberal use of reserve pool officers.
13. By the end of January 1980, when a new officer was finally hired
after difficulties with applicants, the force, with the return of
Keene, was back to a level of three patrol officers. The schedule
currently being utilized calls for four days on and two days off
every six days. This schedule was arrived at without any participa-
tion by the Union. The schedule provides for 40 hours per week on
only two out of three weeks. Thirty-two hours are scheduled for the
third week. During the short week, however, the officer always has
the option of working a day shift on Saturday or Sunday. On most
occasions the officers choose to work the optional shift.
14. Since the November change, Officer Keene has not been scheduled to
work a weekday daylight shift. Consequently, he has only worked one
of the two night shifts and has not been able to see his family in
the evening as much as before.
15. On February 19, 1980, there was a collective bargaining fact-findinq
hearing, followed by a report dated February 28, 1980. Among the
issues in dispute were a Union request for a provision which would
prohibit the
-3-
______________________________________________________________________________
Chief from doing bargaining unit work, i.e., patrol officer duty.
The Town wanted its past practice of freedom in this area to be
continued. The fact-finders recommended that the Chief work a
maximum of two shifts (16 hours) per week of patrol officer duty.
The Union also sought a provision for the regular scheduling of
the overlap shift as a safety issue. The Town wanted to retain
total control over this. The fact-finders recommended that the
Town's proposal be accepted.
16. At the time of the hearing, no contract had been reached although
there were ongoing negotiations. The Union presented statistics
prepared by the Town that demonstrated that crime bad been on the
rise in Town while the police coverage had been shrinking. The
Police Chief also stated that the Town had suffered a drop over the
past two years of its "clearance rate": the percentage of crimes
solved, arrests made, and property recovered.
DISCUSSION
The Union argues that a number of these changes constitute Unlawful
unilateral changes in working conditions. The Town argued that it was acting
consistently with past practice in each of these areas, was responding in the
only way it could to a personnel emergency, or that it was consistent with a
tentative agreement reached in negotiations.[fn]1 Neither party, however,
focused on the key fact, that is, that the parties had reached an impasse in
negotiations before these changes were instituted.
It is axiomatic that the unilateral change rule, see State of Maine
(Bureau of Alcoholic Beverages) v. Maine Labor Relations Board, 413 A.2d 510
(Me. 1980), is inapplicable where the parties have reached impasse, one of
the four exceptions to the rule. See, Maine State Employees Association v.
State of Maine, MLRB No. 78-23 (July 1, 1978) at page 4, aff'd, State v.
M.L.R.B., Kennebec Super. Ct. CV-78-484 (Aug. 7, 1979), aff'd, 413 A.2d 510
(Me. 1980). Rather, in the event of a bona fide impasse, a public employer
is "bound to either continue existing conditions or institute its last best
offer" in the collective bargaining process. Easton Teachers Association v.
Easton School Committee, MLRB No. 79-14 (March 13, 1979) at page 4 n.2; see,
N.L.R.B. v. Intracoastal Terminal, Inc., 286 F.2d 954, 47 LRRM 2629 (5th Cir.
1961). Thus, a public employer may institute changes consistent with its
current impasse bargaining position, whether that position is reflected in a
tentative agreement or not.
Accordingly, since the parties were at impasse at the time of these
changes, we need only inquire as to whether the Town acted consistently with
its impasse positions as reflected by the three articles quoted in Finding of
Fact par. 6. In one of the three changes, it has not done so: the change of
shift assignments could be accomplished only "after notifying and meeting with
the Union." The Town, however, instituted a massive change in shift assign-
ments, including the elimination of the
_______________
1. The Town's post-hearing letter brief is dominated by factual arguments
based on alleged facts which were not in the record; this despite the
fact that the Town had ordered a transcript of the hearing. Accordingly,
we have rejected consideration of this brief except for such legal argu-
ment as is based on evidence in the record.
-4-
______________________________________________________________________________
day shift during the week, without meeting with the Union.[fn]2 It is also
apparent that meaningful prior notice was not provided since, by leaving Town
immediately prior to the planned change, the Town Manager obviously indicated
that he did not intend to comply with the provisions for consultation. Thus,
by violating the very provisions it was then proposing in good faith that the
Union accept as a bilateral agreement for the assignment of work shifts, the
Town was ignoring the collective bargaining process and, in effect, refusing
to bargain in good faith with the Union.
The Town's "business exigency" argument is meritless. The Police Depart-
ment had three full weeks notice of the impending resignation and yet did not
at any time notify the Union of the impending situation. In theory, at least,
providing the Union with an opportunity to consult in the new shift assignment
schedule that would be required in this event would have facilitated the
attainment of the least disruptive resolution. Moreover, if the Town had
really considered this to be a temporary response to a business emergency, it
could have offered a meeting at the earliest possible time in order to get
the Union's input, or at least, it could have recognized the Union's interest
in such. This would have been in keeping with the spirit of both Article 19
and of collective bargaining.
With respect to the overlap shift and the unit work issues, however, the
Town has acted entirely within the bounds of Article 5 and Article 8. Article
5 authorizes the Town to act without limitation in any area not otherwise
modified. There is no provision in the record purporting to modify the Town's
exclusive control of the use of the overlap shift. Consequently, it is
totally consistent for the Town to exercise exclusive control in this area.
Similarly, whether the Chief performs unit work at times when bargaining
unit employees are not available is a question which, at impasse, the Town had
been proposing to retain for its control. There is no question but that with
only three patrol officers, bargaining unit employees are not available to
work each of the 21 possible shifts each week. Accordingly, it was not
inconsistent with Article 8 for the Chief to work outside of his normal
duties, that is, as a patrol officer under those circumstances.[fn]3
In summary,[fn]4 the Town has violated Section 964(1)(E)[fn]5 of the Act
because it
_______________
2. While it was legitimate for the Town to decide to convert to a five-day
week as agreed in Article 19, it could not make the shift changes it did
without complying with the remainder of the Article.
3. Whether or not such practice could continue indefinitely is another issue,
however, which is not presented for determination in this case. That is,
it may very well be that the Town cannot on the one hand be responsible
for the unavailability of bargaining unit employees while on the other
hand invoking Article 8 based on that unavailability. Presumably, however,
this unit work issue will be resolved either by agreement or by binding
interest arbitration.
4. Although not pleaded, the Union also complained of a loss of overtime
opportunities because the Chief worked additional vacant patrol officer
shifts for a period of time. However, such evidence was unclear and, we
suspect, would be subject to the same impasse defense applicable to the
basic unit work issue. See footnote 3.
5. A violation of Section 964(1)(E) is also a derivative violation of Section
964(1)(A).
-5-
______________________________________________________________________________
has failed to collectively bargain as required by Section 965(1)(C) by acting
inconsistently with its impasse position with respect to shift assignments.
Such a violation, however, is difficult to adequately remedy. On the one
hand, it is clear that schedule disruptions and the denial of day shift
opportunities can work serious injury to the life style of individual patrol
officers. On the other hand, this harm is relatively intangible and no
specific injury was demonstrated. Moreover, if the Town had followed the
procedure being negotiated, it could have met with the Union within a short
time and instituted shift assignment changes thereafter. We will therefore
issue a cease and desist order and require that the Town meet with the Union
upon request to discuss shift assignments, unless the parties have otherwise
agreed since this hearing.
ORDER
Pursuant to Section 968(5)(C) of the Municipal Public Employees Labor
Relations Law (Act), the Maine Labor Relations Board hereby orders that the
Town of Livermore Falls, its officers, agents, and successors, shall:
(1) Cease and desist from refusing to bargain collectively with
Teamsters Local Union No. 48 as required by Section 964(1)
(E) of the Act by making changes in working conditions in a
manner which is inconsistent with its last best offer prior
to an impasse in negotiations;
(2) Unless agreed otherwise through collective bargaining after
the hearing in this case, meet within ten days of a request
by Teamsters Local Union No. 48 to discuss shift assignments
in order to fully comply with Article 19 referred to above.
Dated at Augusta, Maine, this 20th day of August, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Wallace J. Legge
Employee Representalive
/s/____________________________________
Don R. Ziegenbein
Employer Representative
-6-