STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-44
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BATH FIREFIGHTERS ASSOCIATION, et al., )
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Complainants, )
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v. ) DECISION AND ORDER
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CITY OF BATH, et al., )
)
Respondents. )
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On May 2, 1980, three public employee unions (Unions) in the City of Bath
(City) filed a prohibited practices complaint alleging that the City violated
26 M.R.S.A. 964(1)(E) by attempting to implement unilaterally a delayed
payroll system for City employees. The City filed an answer to the complaint
on May 27, 1980, urging that it is not obligated to negotiate changes in the
pay period.
A pre-hearing conference on the case was held on June 9, 1980, Alternate
Chairman Donald W. Webber presiding. On June 16, 1980, Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference. The parties agreed at the pre-
hearing conference that no facts were in dispute and waived hearing, agreeing
to file briefs with the Board arguing their positions. The Unions were repre-
sented by Daniel R. Donovan, Esq., and John J. Sears, Esq., while the City
was represented by Roger R. Therriault, Esq.
The parties's briefs have been considered by the Board, Chairman Edward
H. Keith presiding, with Employer Representative Don R. Ziegenbein and
Employee Representative Wallace J. Legge.
JURISDICTION
The jurisdiction of the Maine Labor Relations Board to take this case and
render a decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the parties' stipulation of facts and the documents
submitted in the case, the Board finds:
1. The three complaining unions--the Bath Firefighters
Association, Local 1611 of the International Asso-
ciation of Firefighters, AFL-CIO; Local 1828 of
Council 74, American Federation of State, County and
Municipal Employees, AFL-CIO; and Local 89 of the
Industrial Union of Marine and Shipbuilding Workers
of American, AFL-CIO--are each public employee organi-
zations within the meaning of 26 M.R.S.A. 968(5)(B).
The Firefighters represent a bargaining unit of City
Fire Department employeees, while Local 1828 repre-
sents a unit of Police Department employees, and
Local 89 a unit of Public Works Department employees.
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The City of Bath and its City Council and City Manager
are all public employers as defined in 26 M.R.S.A.
962(7).
2. For the past several years, the City has had a pay
period ending on Thursday, with payment for the week
being made on Thursday of the same week. This pay-
roll system makes it necessary for paychecks to be
prepared on Tuesdays.
3. In December, 1979, an auditing firm hired to study
the City's system of internal accounting control
recommended, among other things, that the City change
the payroll system to provide for a one week lag in
the payment of wages. This recommendation was made
so that the practice of preparing the payroll before
the payroll period had ended could be eliminated.
4. The City subsequently informed the Unions' represent-
atives that it wished to implement a pay plan providing
for the payment of wages one week in arrears. The
representatives all indicated that the Unions wished
to negotiate about the new pay plan.
5. At the time, collective bargaining agreements between
the City and each of the three Unions were in effect.
The Firefighters' and Local 1828's contracts both
expired on June 30, 1980, while Local 89's contract
expired on March 31, 1980. During negotiations with
each of the Unions for successor contracts, the City
took the position that implementation of the delayed
payroll system was not a negotiable topic.
6. In a memorandum dated April 28, 1980 to all City
employees, the City Manager stated that the new
system of paying employees one week in arrears
would be implemented in May, 1980.
7. The Unions then filed the prohibited practices complaint
which initiated this case, and also filed a motion for a
temporary restraining order with the Sagadahoc County
Superior Court. On May 6, 1980, the Court granted the
motion, ordering the City to restrain from changing the
payroll system. On May 19, 1980, the Court issued a
preliminary injunction enjoining the City from changing
the payroll plan until such time as the Maine Labor
Relations Board decided whether the City is required to
negotiate before implementing the new plan.
DECISION
We find that the City was obligated by 26 M.R.S.A. 965(1)(C) to
negotiate with the Unions before implementing the new payroll system. Section
965(1)(C) requires the City to negotiate with respect to "wages, hours and
working conditions." The proposed system of paying the employees one week in
arrears had an effect on the employees' wages in that the plan would cause the
employees to lose the time value of a week's wages. Moreover, the manner in
which the plan might be implemented also would have an effect on wages and
accordingly is a matter about which the City is required to bargain. In
short, under Section 965(1)(C) the City has the duty to bargain concerning 1)
whether the new plan is to be implemented, and 2) if so, the way in which the
plan will be implemented.
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We have consistently held that unilateral changes in payroll plans by
employers violate the duty to bargain. In Teamsters Local 48 v. University of
Maine, MLRB Nos. 78-16 and 78-20 (June 29, 1979), the employer unilaterally
changed the payroll period from weekly to bi-weekly. We held "the frequency
of payment of one's salary is integrally related to working conditions. A
change in a pay period amounts to a direct change in working conditions," and
ordered the employer to negotiate about the new payroll period. Id., at 5-7.
We reached a similar result in Teamsters Local 48 v. Town of Jay, MLRB No.
80-02 (Dec. 26, 1979) (employer change in paydays from Wednesdays to
Thursdays), holding "the time when employees are to receive their paychecks
is a mandatory subject of bargaining." Id., at 4. These holdings are in
accord with federal precedent. See, e.g., King Radio Corp., Inc., 166 NLRB
649, 654 (1967), enforced, 398 F.2d 14, 20 (10th Cir. 1968).
The City's argument that implementation of the new pay plan is an
"inherent management right" is meritless. The only "management rights" clause
in the statute, found in Section 965(1)(C), clearly is not applicable, and the
Law Court has rejected an identical argument in a similar case:
"To read into the Act an implied 'management prerogative' excep-
tion, as is urged upon us by the State, would be to disregard
pro tanto the express legislative intent to promote in the
public sector 'collective bargaining for terms and conditions
of employment.'"
State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980) (emphasis
in original). Exactly the same reasoning is applicable in this case.
Neither are any of the "limited exceptions" to the duty to bargain, set
forth in MSEA v. State of Maine, MLRB No. 78-23 (July 1, 1978), aff'd 413 A.2d
510 (Me. 1980), applicable here. Of course, should the City reach a bona fide
impasse in negotiations with the Unions over the new payroll plan, then uni-
lateral implementation of the plan might be permissible. See, e.g., Teamsters
Local 48 v. Town of Livermore Falls, MLRB No. 80-22 at 4-5 (Aug. 20, 1980).
We find the City's attempt to implement unilaterally the new payroll
system in May, 1980, to be a per se violation of 26 M.R.S.A. 964(1)(E).
See, e.g., State v. Maine Labor Relations Board, supra, 413 A.2d at 514-515;
NLRB v. Katz, 369 U.S. 736 (1962). We will order remedies necessary to
effectuate the polices of the Municipal Public Employees Labor Relations Act.
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)(C), it is hereby ORDERED:
That the City of Bath, its City Council, its City Manager, and
their representatives and agents,
1. Cease and desist from attempting to implement
any change in the present payroll system with-
out first notifying and bargaining with the
Unions representing any affected City employees.
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2. Take the affirmative action of notifying and
bargaining with any union representing City
employees before attempting to implement any
change in the employees' pay plan.
Dated at Augusta, Maine this l7th day of October, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Wallace J. Legge
Employee Representative
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