STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-46
Issued: July 2, 1981
______________________________
)
COUNCIL NO. 74, AMERICAN )
FEDERATION OF STATE, COUNTY )
AND MUNICIPAL EMPLOYEES, )
AFL-CIO, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
BANGOR WATER DISTRICT, )
)
Respondent. )
______________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on March 5, 1981 by Council No. 74 of the American Federation of
State, County and Municipal Employees, AFL-CIO (Council 74). Council 74
alleges that the Bangor Water District (Water District) violated 26 M.R.S.A.
964(1)(E) by unilaterally changing the holiday schedule for its employees
without notifying or bargaining with Council 74, the employees' certified
bargaining agent. The Water District filed a response to Council #74,
AFSCME's complaint on March 11, 1981, denying that its actions violated any
provision of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq.
A pre-hearing conference on the case was held on March 20, 1981, Chairman
Edward H. Keith presiding. As a result of the pre-hearing conference Chairman
Keith issued on March 25, 1981 a Pre-Hearing Conference Memorandum and Order,
the contents of which are incorporated herein by reference.
A hearing was held on June 19, 1981, Alternate Chairman Gary F. Thorne
presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. Council 74 was represented by
H. Ross Ferrell, Jr., and the Water District by Phillip D. Buckley, Esq.
The parties were given full opportunity to examine and cross-examine
witnesses, introduce documentary evidence, and make argument.
-1-
JURISDICTION
Council 74 is the certified bargaining agent for the maintenance,
operations and service workers employed by the Water District. The Water
District 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 Labor Relations Board finds:
1) On January 14, 1980, Council 74 was elected as bargaining agent by
the Water District's maintenance, operations and service workers by a vote of
11 to 10. The Water District appealed the outcome of the election to the Labor
Relations Board, urging that a ballot voided by the Executive Director should
have been counted as a vote against the union. Had the ballot been so
counted, the outcome of the election would have been an 11 to 11 tie, and
Council 74 would not have received the majority of votes necessary for
certification as bargaining agent. In March, 1980, the Board issued a
decision and order affirming the Executive Director's actions and dismissing
the Water District's appeal.
2) The Water District filed an appeal and a motion for stay of the
Board's decision and order in the Penobscot County Superior Court. The
Superior Court denied the motion for stay, and in August, 1980 issued a
decision affirming the Labor Relations Board's decision and order. The Water
District then appealed the case to the Law Court, which affirmed the Superior
Court's decision in April, 1981. One result of these proceedings is that
Council 74 has been the lawfully certified bargaining agent of the Water
District's employees since January 14, 1980.
3) On November 26, 1980, Water District General Manager Peter Caldwell
informed Water District employees that the day after Thanksgiving would be a
regular work day for the Water District. The day after Thanksgiving is not a
regular Water District holiday, but on 6 occasions during the previous 9 years
the Water District Trustees has made the day a holiday. The decision whether
to give the workers the day off would be made a few days before Thanksgiving,
and depended on the workload and weather conditions at the time. In late
November, 1980, the
-2-
workload was heavy and the weather was relatively good.
4) In December, 1980, the Water District Trustees decided to give the
employees the day after Christmas off. That day was not a regular Water
District holiday, and had never before been made a holiday. Friday,
December 26th was made a holiday. The Water District did not notify or
bargain with Council 74 about this change in the holiday schedule.
5) In August, 1980, Council 74 attempted to begin negotiations for a
collective bargaining agreement with the Water District. The Water District
refused to bargain with Council 74 until such time as its appeal of the
decision certifying Council 74 as bargaining agent was finally decided.
Council 74 filed a prohibited practices complaint, and on March 2, 1981 the
Labor Relations Board issued a decision in Council 74, AFSCME v. Bangor Water
District, MLRB No. 81-15, holding that the filing of an appeal did not excuse
the Water District from its duty to bargain.
DISCUSSION
At issue is the question whether the Water District unilaterally changed
the employees' holiday schedule in violation of 26 M.R.S.A. 964(l)(E). We
find that no change occurred with regard to the day after Thanksgiving because
there was no established practice of granting that day as a holiday. Granting
the employees the day after Christmas as a holiday was a unilateral change in
past practice, however, since that day had never before been a holiday. We
will order the Water District to cease and desist from changing the holiday
schedule without first notifying and, if requested, bargaining with the
employees' bargaining agent.
The rule prohibiting unilateral changes in mandatory subjects of
bargaining once the employer's employees have selected a bargaining agent is
a venerable principle of labor law. State v. Maine Labor Relations Board, 413
A.2d 510, 515 (Me. 1980); NLRB v. Katz, 369 U.S. 736, 742-743, 82 S. Ct. 1107,
8 L.Ed2d 230 (1962). The rationale for this rule is that a unilateral change
in a mandatory subject undermines the bargaining process established by the
Act "much as does a flat refusal [to bargain]." NLRB v. Katz, 369 U.S. at 743.
This rationale applies to any unilateral change in a mandatory subject,
regardless whether the effect of the change is adverse to or beneficial to the
interests of the employees in question. Id., at 745-746.
-3-
The mandatory subjects about which the Water District is required to bar-
gain are those pertaining to "wages, hours, working conditions and contract
grievance arbitration." 26 M.R.S.A. 9650)(C). Holidays are integrally
related to "wages, hours and working conditions," and the issue of holidays
therefore is a mandatory subject of bargaining. State v. Maine Labor
Relations, supra at 514. Once Council 74 was certified as the employees'
bargaining agent on January 14, 1980, the Water District could not lawfully
make any changes in the holiday schedule without first notifying and, if then
requested, bargaining with the Union.
We conclude that the Water District did not change the holiday schedule
when it failed to make the day after Thanksgiving a holiday. That day was not
a regular Water District holiday. The Water District Trustees have made the
day a holiday on 6 occasions during the last 10 years, doing so on a
discretionary basis 1 or 2 days before Thanksgiving when the workload and
weather conditions permit. In November, 1980, the Water District decided not
to make the day a holiday because the workload was heavy and the weather
conditions favorable. This decision was consistent with the practice of the
last 9 years, and cannot be said to amount to a change in the holiday
schedule.
We reach the opposite conclusion with regard to the day after Christmas,
however. That day was not a regular holiday and had not before 1980 ever been
given as a holiday. A change in the practice regarding holidays thus occurred
when the Water District made the day a holiday in 1980. The fact that the
unilateral change benefited the employees by giving them an additional holiday
is no defense, for the change nonetheless undermined the bargaining process in
contravention of the provisions of the Act. For all of the reasons stated in
Council 74, AFSCME v. Bangor Water District, MLRB No. 81-15 (March 2, 1981),
the fact that the Water District had Council 74's certification as bargaining
agent under appeal did not excuse the Water District from notifying or
bargaining with the union.
In short, we conclude that the Water District was required by Section
965(1)(C) to notify and bargain with Council 74 before making the day after
Christmas a holiday, and that its failure to do so constitutes a per se
violation of Section 964(1)(E). Pursuant to Section 968(5)(C), we will order
the remedy necessary to effectuate the policies of the Act.
-4-
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(5), it is hereby ORDERED:
That the Bangor Water District, and its representatives
and agents, cease and desist from changing the holiday
schedule for its employees without notifying and, if
requested, bargaining with Council 74, AFSCME, the certified
bargaining agent of its employees.
Dated at Augusta, Maine, this 2nd day of July, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Gary F. Thorne
Alternate Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A.
968(5)(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
-5-