STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-18
Issued: December 22, 1980
_______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
BUCKSPORT SCHOOL DEPARTMENT, )
)
Respondent. )
_______________________________)
This is a prohibited practice case, filed pursuant to 26 M.R.S.A.
968(5)(B) on September 22, 1980 by Teamsters Local Union No. 48 (Local 48).
Local 48 alleges that the Bucksport School Department (School Department)
violated 26 M.R.S.A. 964(1)(E) by unilaterally changing the practice of
allowing school bus drivers to take their school buses home at night. The
School Department filed a response on October 14, 1980, denying that its
actions constituted a violation of the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A. 961 et seq. (Act).
A pre-hearing conference on the case was held on October 21, 1980,
Alternate Chairman Gary F. Thorne presiding. On October 22, 1980, Alternate
Chairman Thorne issued a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
A hearing on the case was held on December 5, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. Local 48 was represented by Walter
Stilphen, and the School Department by Paul Hurlburt. Full opportunity was
given to examine and cross-examine witnesses, introduce evidence, and make
oral argument.
JURISDICTION
Local 48 is a bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B).
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The School Department is a public employer as defined in 26 M.R.S.A. 962(7).
The jurisdiction of the Maine Labor Relations Board to hear this case and
render a decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1) Local 48 was certified as the bargaining agent for the school bus
drivers employed by the School Department on April 15, 1980. Negotiations
for a collective bargaining agreement for the bus drivers1bargaining unit
commenced in September, 1980.
2) In 1975 or 1976, the School Department started allowing the bus
drivers to take their school buses home in the evening. The bus drivers would
drive the buses home after completing their runs for the day, park the buses
in their driveways over night, and leave directly from home in the morning to
start their routes.
3) The reason the School Department allowed the drivers to take the
buses home was that there no longer was enough storage space for all the buses
inside the Town Garage. At first the buses were parked outside the Garage
overnight but, as the theft of bus equipment and gasoline and the vandalizing
of buses became increasingly serious problems, the School Department
administration decided to let the drivers take the buses home at night.
The School Department's school board was not pleased with this arrangement
but it accepted the administration's decision, telling the administration to
get the buses back into the Garage as soon as space was available. The
drivers were not informed at any point that the buses would go back into the
Garage as soon as there was space.
4) Only the 3 drivers who had noon kindergarten runs were allowed to
take their buses home at first. This practice benefited the School Department
not only by removing some of the buses from the vicinity of the Garage at
night, but also by slightly reducing the number of miles traveled by the
buses. The practice of allowing the drivers to take the buses home then
gradually expanded until 6 of the 9 bus drivers were taking their buses home.
During the 4 or 5 years when 6 of the buses were kept at the drivers' homes,
the rest of the 4 or 5 buses owned by the School Department were stored
overnight in the Town Garage. One or 2 more buses could have been stored
in the Garage during this period, but the School Department allowed the 6
drivers to continue to take their buses home.
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5) On August 26, 1980, the School Department decided that it would no
longer allow the drivers to take the buses home. During the summer of 1980,
the Foreman at the Town Garage moved the Town's snow plows out of the Garage,
freeing up some additional space for the school buses. The School Department
accordingly directed the drivers to leave the buses in the garage at night.
The School Department anticipated that the union probably would object to its
decision, but did not notify Local 48 prior to telling the drivers that they
could no longer take the buses home.
6) Taking the buses home was a benefit to the drivers, saving them money
for gasoline and maintenance for their personal vehicles. The drivers also
did not have to worry about vandalism to their personal vehicles left at the
Garage while the drivers were on their bus routes.
7) The parties have negotiated about the use of the buses since
bargaining began in September, with the issue remaining unresolved to date.
The School Department has informally negotiated with the bus drivers for the
last 9 or 10 years. The issue of taking the buses home at night was never
raised by the drivers or the School Department during these earlier
negotiations.
DECISION
The rule prohibiting unilateral changes in wages, hours and working
conditions is well-established. See, e.g., State (Bureau of Alcoholic
Beverages) v. Maine Labor Relations Board, 413 A.2d 510, 515 (Me. 1980); NLRB
v. Katz, 369 U.S. 736, 743 (1962). "The essence of this prohibition is that
once a bargaining agent has begun to represent a unit of employees, the
employer may not make unilateral changes in mandatory subjects of bargaining
without negotiating the changes with the bargaining agent." Teamsters Local
48 v. Town of Jay, MLRB No. 80-02 at 3 (Dec. 26, 1979). The rationale for the
prohibition is that unilateral changes in mandatory subjects "is a circum-
vention of the duty to negotiate which frustrates the objectives of [the duty]
much as does a flat refusal [to bargain]." NLRB v. Katz, supra at 743.
In the present case there is no question but that a unilateral change in
a mandatory subject of bargaining has occurred. The School Department
properly concedes that the use of the employer's vehicles for transportation
to and from work involves wages and working conditions and accordingly is a
mandatory subject of bargaining. See, e.g., 26 M.R.S.A. 965(1)(C);
Teamsters Local 48 v. Town of
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Jay, supra at 5; Eagle Material Handling of New Jersey, 224 NLRB 1529, 1532-33
(1976). The practice of allowing the 6 drivers to take the buses home at
night had become well-established, having occurred on a regular basis for 4 or
5 years. And there is no dispute over the fact that the School Department
unilaterally changed this practice in August, 1980, directing without prior
notification to or bargaining with Local 48, the bus drivers' bargaining
agent, that the drivers leave the buses in the Garage overnight.
None of the "limited exceptions" to the rule prohibiting unilateral
changes is applicable. See, e.g., Maine State Employees Association v. State
of Maine, MLRB No. 78-23 at 4 (July 1, 1978), aff'd 413 A.2d 510 (Me. 1980).
In particular, the employees did not waive the right to bargain about the use
of the buses for personal transportation by failing to raise this issue during
informal negotiations with the School Department. The drivers were never
informed that the buses would be put back in the Garage once space was
available. Moreover, space in the Garage for 1 or 2 additional buses was
available during the 4 or 5 years the practice existed, yet no driver was
told to keep his or her bus at the Garage rather than taking it home. Since
the drivers were not on notice that the practice of taking the buses home was
subject to termination, they did not waive'the right to bargain about the
issue by failing to raise it during informal negotiations. As soon as the
employees learned in August, 1980 that the practice had been terminated, they
properly requested bargaining over the issue.
The fact that the drivers did not negotiate the issue does not mean that
the use of the buses is not a fringe benefit. The use of the buses for
personal transportation is a fringe benefit to the drivers regardless whether
this benefit resulted from negotiations or from past practice; the origin of
the benefit is irrelevant in this case. In addition, the fact that the School
Department unilaterally established the benefit does not mean that it is free
to take it away unilaterally. Once the practice became established and once
the drivers had selected a bargaining agent, the School Department was
required by Section 965(1)(C) to negotiate before changing the benefit.
Finally, the fact that the School Department may have good reasons for putting
the buses back in the Garage does not relieve it of its duty to bargain.
Section 965(1)(C) requires that the School Department comply with that
obligation regardless whether its reasons for wanting to make the change
are good or bad.
In short, the conclusion is inescapable that the School District
committed a
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per se violation of 26 M.R.S.A. 964(1)(E) by unilaterally changing the
practice of allowing the school bus drivers to take the buses home at night.
This conclusion is not based on any evidence of anti-union animus or unlawful
motive on the part of the School Department, but rather is premised on the
principle of law that a failure to bargain is a per se violation, without
regard to motivation. See, e.g., NLRB v. Katz, supra. Indeed, we are
impressed with the harmonious relationship which appears to exist between the
School Department and Local 48.
We will order the School Department to cease and desist from makinq
unilateral changes in the mandatory subjects of bargaining, and to reinstate
immediately the practice of allowing the 6 drivers who were affected by the
unilateral change to take their buses home for the night. This practice is
to remain in effect until the issue of the use of the buses is resolved
through negotiations with the bus drivers' bargaining agent. If this practice
is not reinstated within 5 calendar days of the date of this Decision and
Order, the School Department must commence paying each of the 6 affected
employees 20 cents a mile (the rate presently paid by the State of Maine) for
the miles the drivers travel in their personal vehicles to and from the Town
Garage and their homes, at the same intervals as regular compensation is paid,
until such time as the issue of the use of the buses is settled through
negotiations. If the mileage payments are not paid when due, then interest
on the sums owed the drivers shall accrue at 12% per annum on a quarterly
basis, in the manner set forth in Council 74, AFSCME v. City of Bangor, MLRB
No. 80-41 at 11-12 (Sept. 24, 1980). These remedies will effectuate the
policies of the Act and restore the status quo. Caribou School Dept. v.
Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979).
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), it is hereby ORDERED:
That the Bucksport School Department and its representatives and agents:
1. Cease and desist from changing any aspect of the school bus
drivers' wages, hours and working conditions without first
notifying and bargaining with the drivers' collective bar-
gaining agent, unless one of the limited exceptions to the
duty to bargain is applicable.
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2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
a) Reinstate immediately the practice of allow-
ing the 6 school bus drivers affected by the
unilateral change to take their school buses
home at night. This practice fs to remain
in effect until the issue of use of the buses
is resolved through negotiations with the bus
drivers' bargaining agent.
b) In the event the practice is not reinstated
within 5 days of the date of this Decision and
Order, pay each of the 6 affected drivers 20
cents per mile for the miles they travel in
their personal vehicles to and from the Town
Garage and their homes, at the same intervals
as regular compensation is paid, until such
time as the use of the buses is settled through
negotiations. If the mileage payments are not
paid when due, then interest at a rate of 12%
per annum shall accrue on a quarterly basis on the
amounts owed, in the manner set forth in this
Decision.
c) Notify the Board's Executive Director in writing
within 20 days of the date of this Decision and
Order of the steps taken to comply with this Order.
Dated at Augusta, Maine this 22nd day of December, 1980.
MAINE LABOR RELATIONS BOARD
The parties are advised of /s/____________________________________
their right pursuant to 26 Edward H. Keith
M.R.S.A. 968(5)(F) to seek Chairman
a review by the Superior
Court of this decision by
filing a complaint in accord-
ance with Rule 80B of the /s/____________________________________
Rules of Civil Procedure Don R. Ziegenbein
within 15 days after receipt Employer Representative
of this decision.
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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