STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-01
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)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, ) DECISION AND ORDER
)
v. )
)
TOWN OF BAR HARBOR, )
)
Respondent. )
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Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine (Union) filed this prohibited practice
complaint on June 25, 1980, alleging that the Town had unilaterally changed
the working conditions of the mechanics by changing from a weekly gas allot-
ment to a cash reimbursement on a per mile basis without negotiations with
the Union. The Town filed a response on July 3, 1980, denying that the change
was a prohibited practice.
Alternate Chairman Donald W. Webber held a pre-hearing conference on
July 21, 1980, after which he issued a Pre-Hearing Conference Memorandum and
Order dated July 23, 1980, the contents of which are incorporated herein by
reference.
The Maine Labor Relations Board (Board) held a hearing in the matter on
September 19, 1980, Chairman Edward H. Keith presiding, with Employer Repre-
sentative Don R. Ziegenbein and Alternate Employee Representative Harold S.
Noddin. The Union's motion to amend the complaint was denied at the start of
the hearing. At the close of the hearing the parties made oral argument and
waived the filing of briefs. The Union was represented by Walter J. Stilphen,
Jr., Secretary-Treasurer of Local 48; the Town, by Robert D. Curley, Labor
Consultant.
JURISDICTION
The jurisdiction of the Board lies in Section 968(5) of the Municipal
Public Employees Labor Relations Law (Act), 26 M.R.S.A. Sec. 968(5).
FACTS
Upon the entire record, and from our observation of the witnesses and
their demeanor, we find:
1. The Union was certified as the bargaining agent for Public
Works employees on October 26, 1979; it is a public employee
organization within the meaning of 26 M.R.S.A. 968(5)(B)
and 962(2). The Town is a public employer within the mean-
ing of 26 M.R.S.A. 968(5), 962(7) and 964(1).
2. For at least the past five years, each mechanic has been
permitted to pump 15 gallons of gasoline at the Town gas
pumps into his personal vehicle once a week, i.e., on
Friday. This gasoline compensates the mechanic for the
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use of his personal vehicle during the week in the
performance of Town business. The mechanics have
received this whether they actually used their vehicle
or not during the previous week. Apparently a number
of other Town employees (not in this bargaining unit)
also were reimbursed in this fashion.
3. When the Town and the Union began negotiating for a
collective bargaining agreement, one of the first
proposals that was tentatively agreed to was the
following:
"ARTICLE 6 - LETTER ON PRACTICES
Section 1. The Union shall submit to the
Town a letter within thirty (30) days of
the contract signing date detailing prac-
tices, now current, which are not specifi-
cally covered by contract. The Town and
the Union shall meet to discuss the letter
within fifteen (15) working days from re-
ceipt of the letter by the Town. Failure
to forward the letter by the foregoing date
shall make this clause #6 null and void."
Since that time the parties have utilized mediation and
fact-finding. The negotiators at one point reached a
tentative agreement on an entire contract, but it was
not ratified by the Town Council. At no time has the
gas allotment practice been raised in the collective
bargaining process by either party. It was clear from
the above article that the parties intended to identify
the current practices not specifically covered in the
remainder of the contract, for example, the gas allotment,
after the contract was signed.
4. After the negotiators reached a tentative agreement on
the contract, on March 7, 1980, but before the Town
Council rejected it on March 24th, the Town Manager
told the Highway Supervisor to inform the mechanics
that after their gas allotment of March 14th, they
would be switching to a plan whereby they would no
longer receive the gas allotment but would receive
22 cents per mile actually travelled in their personal
vehicles on the basis of a voucher which they would
submit monthly. Neither the mechanics nor the Union
had ever been notified in advance of this change.
5. Town Manager Edward Ainsworth testified that the Town
Council had informally decided in October 1979 to make
this change for all affected Town employees in the 1980
fiscal year. They apparently were reacting in part to
a planned 10% reduction in the Town's fuel allotment
for the next year. Although Ainsworth told all other
affected Town employees of this changeover, which was
actually accomplished in January 1980, he neglected
to tell the mechanics to change until March 14, 1980.
6. Around September 1, 1980, the mechanics ceased using
their own vehicles and were afforded the use of a Town
vehicle to accomplish the necessary travel. The mechanics
had decided that the new plan was not adequate to com-
pensate them for their travel expenses.
7. The parties had not reached agreement on a new contract
at the time of the hearing.
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DISCUSSION
The gas allotment system is clearly a form of wages and was a working
condition on March 14, 1980. See 26 M.R.S.A. 965(1)(C). It is well
established that a party may not unilaterally change such a working condition
once there is a certified or recognized bargaining agent for the affected
employees. To make such a unilateral change is a violation of the duty to
bargain expressed in 26 M.R.S.A. 964(1)(E) and 965(1)(C), see, e.g., State
(Bureau of Alcoholic Beverages) v. Maine Labor Relations Board, 413 A.2d 510
(Me. 1980), unless one of the four exceptions applies, see, Maine State
Employees Association v. State (Bureau of Alcoholic Beverages), MLRB No. 78-23
(July 1, 1978), aff'd, State v. Maine Labor Relations Board, Kennebec Super.
Ct., CV 78-484 (Aug. 7, 1979), aff'd 413 A.2d 510 (Me. 1980). Since this is
a plain case of a unilateral change in a working condition, we need only
address the possible exceptions.
The Town claimed that it was responding to an emergency because of a 10%
reduction in the amount of its yearly allotment of gasoline. This, however,
is clearly not a business exigency or emergency within the bounds of the law.
Only a serious situation requiring action before it would be possible to nego-
tiate with the Union is contemplated. E.g., Maine State Employees Association
v. State (Bureau of Mental Retardation), MLRB No. 79-43 (Dec. 6, 1979).
Moreover, if the Town were permitted to claim an emergency after waiting six
months to implement its response to the "emergency," it would totally under-
mine the collective bargaining law.
Finally, the Town argued that the Union did not raise the subject in
bargaining and that it will have another opportunity to discuss this under
Article 6 after the contract is finally signed. The Town, however, miscompre-
hends the duty to bargain. The burden to raise a matter for negotiation lies
with the party that wishes to make a change in the existing conditions.
It is, therefore, the Town which should have raised this subject for bargain-
ing, especially since it was aware before the commencement of bargaining for
a contract that it intended to change this working condition.
We will issue a cease and desist order regarding further unilateral
changes. We will also require that the Town return to the allotment method
immediately. This system must be retained until such time as it is changed
through the collective bargaining process required by the Act.
The mechanics must also be made whole for the loss of compensation they
may have suffered from March 17, 1980, to August 30, 1980. (After the latter
date we conclude that the mechanics did not use their personal vehicles and
voluntarily chose to use Town vehicles.) The amount should equal the product
of 15 gallons per week times the current commercial price of gasoline of the
type each mechanic normally used, less the amount of cash reimbursement for
the period, plus interest.
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1. The Town argued that this was only a change in method of reimbursement
and not a taking away of the reimbursement. Nonetheless, this change neces-
sarily and obviously resulted in a different amount of reimbursement and
therefore impacted on the total wages and benefits of the employee.
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ORDER
Pursuant to Section 968(5) of the Municipal Public Employees Labor
Relations Law (Act), the Maine Labor Relations Board hereby order that the
Town of Bar Harbor, its Town Manager, Edward Ainsworth, and their officers,
agents, and successors shall:
1. Cease and desist from refusing to bargaining collectively
with Teamsters Local Union No. 48 as required by Section
964(1)(E) of the Act by making unilateral changes in the
working conditions of employees in the Public Works
department; and
2. Take the following affirmative action which the Board
finds will effectuate the polices of the Act:
(a) Reinstitute the former practice for
mechanics of the 15 gallon weekly gas
allotment on the first Friday after
receipt of this order; and
(b) Make the mechanics whole for any loss
of compensation for the period of
March 17, 1980, to August 30, 1980, by
paying them the amount which equals the
product of 15 gallons per week times the
current price of gasoline of the type each
mechanic normally used, less the amount of
cash reimbursement for the period, plus
interest at the rate of 12 percent per
annum from June 10, 1980.
(c) Notify the Executive Director in writing
within twenty days from the date of this
decision what steps have been taken to
comply with this order.
Dated at Augusta, Maine, this l6th day of October, 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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