STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-18 Issued: October 10, 1985 _________________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and University ) Employees in the State of Maine, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) EASTPORT SCHOOL DEPARTMENT and BRIAN ) SMITH, Superintendent, ) ) Respondents. ) _________________________________________) The question presented in this prohibited practices case is whether the Eastport School Department and its Superintendent of Schools, Brian Smith, (hereinafter referred to together as "Employer") violated 26 M.R.S.A. Sec. 964(1)(E) by unilaterally, without first notifying and affording its employees' bargaining agent the oppor- tunity of demanding negotiations thereon, installing a time clock and requiring all hourly employees to use the same. In the past, the employees recorded their own hours worked each week on time cards. We hold that the Employer's action did not violate 26 M.R.S.A. Sec. 964(1)(E). The prohibited practices complaint, filed pursuant to 26 M.R.S.A. Sec. 968(5)(B) by Teamsters Local Union No. 48 ("Union"), was received on May 31, 1985. The Union's complaint alleged that the Employer's action violated 26 M.R.S.A. Sec. 964(1)(A), (B) and (C). The Employer filed its answer on June 24, 1985, denying that its action transgressed any provision of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-A, and moved to dismiss the Union's complaint. A prehearing conference on the case was held on June 26, 1985, Alternate Chairman Donald W. Webber presiding. At the prehearing con- ference, the parties settled the dispute which gave rise to the alle- gation concerning a violation of Section 964(1)(B) of the Act and that contention was, therefore, withdrawn. The parties further agreed to -1- waive a fact hearing and to submit the case to the Labor Relations Board on stipulation and briefs. On June 28, 1985, Alternate Chairman Webber issued a Prehearing Conference Memorandum and Order, the con- tents of which are incorporated herein by reference. The stipulation of additional facts was filed on August 12, 1985. As part of the stipulation, the parties agreed that "[t]he complaint should be amended to allege a violation of 26 M.R.S.A. Sec. 964(1)(E)" and "[t]he allegation of a violation of 26 M.R.S.A. Sec. 964(1)(A) should be deleted except to the extent it incorporates Sec. 964(1)(E) (i.e., the Complaint no longer alleges an independent violation of Sec. 964(1) (A))." The final brief was received on August 5, 1985. Neither party filed a response brief. The Union was represented at the prehearing conference by one of its Business Agents, John A. Perkins, and its brief was prepared and submitted by Jonathan G. Axelrod, Esq. The Employer was represented by Management Consultant Annalee Z. Rosenblatt, who also prepared and submitted the brief on behalf of the Employer. The Maine Labor Relations Board ("Board"), Chairman Edward S. Godfrey presiding, with Employer Representative Thacher E. Turner and Alternate Employee Representative Russell A. Webb, has considered the relevant facts and the parties' arguments in reaching its decision. JURISDICTION Teamsters Local Union No. 48 is the certified bargaining agent, within the definition of 26 M.R.S.A. Sec. 962(2), for a bargaining unit composed of the bus drivers, custodians and secretaries employed by the Eastport School Department. The Eastport School Department is the public employer, within the definition of 26 M.R.S.A. Sec. 962(7), of the employees mentioned in the preceding sentence. At all times relevant hereto, Brian Smith has been the Superintendent of Schools for the Eastport School Department. Since the acts alleged concerning Smith are said to have arisen out of and been performed by him in the course of his employment by the Eastport School Department, Smith is a public employer of the employees of the Eastport School Department. The jurisdiction of the Maine Labor Relations Board to hear this case and -2- to render a decision and order herein lies in 26 M.R.S.A. Sec. 968(5). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. Teamsters Local Union No. 48 is the certified bargaining agent, within the definition of 26 M.R.S.A. Sec. 962(2), for a bargaining unit composed of the bus drivers, custodians, and secretaries employed by the Eastport School Department. 2. The Eastport School Department is the public employer, within the definition of 26 M.R.S.A. Sec. 962(7), of the employees mentioned in the preceding paragraph. 3. At all times relevant hereto, Brian Smith has been the Superintendent of Schools for the Eastport School Department. Since the acts concerning Smith arose out of and were performed by him in the course of his employment with the Eastport School Department, Smith is a public employer, within the definition of 26 M.R.S.A. Sec. 962(7), of the employees of the Eastport School Department. 4. The Union became certified as the bargaining agent, for the unit mentioned in paragraph 1 above, through a bargaining agent elec- tion conducted by an agent of the Board on February 7, 1985. 5. Prior to December 18, 1984, the hourly employees in the classifications noted in paragraph 1 hereof recorded their own hours worked each week on time cards. 6. On December 18, 1984, the Employer installed a time clock at Shead High School for the use of two bus driver/custodians at the high school. As a result of the Employer's unilateral action, the Union filed a prohibited practices complaint with the Board. The Union voluntarily withdrew its complaint, without prejudice, at the pre- hearing conference on said case (M.L.R.B. Case No. 85-11). 7. On or about April 29, 1985, the Employer installed a second time clock, this time at the Eastport Elementary School, and required all hourly employees of the Eastport School Department, including the employees mentioned in paragraph 1, supra, to use said clock, in lieu -3- of the manual time keeping system noted in paragraph 5 above. 8. As of August 12, 1985, the parties had met twice for the pur- pose of negotiating an initial collective bargaining agreement for the bargaining unit mentioned in paragraph 1 hereof. Although the Union had not made any proposals concerning the installation and use of time clocks as of that date, the ground rules controlling the parties' nego- tiations provide that "[t]he Union will present all of their initial proposals by the third session." DECISION The Union contends that by installing a time clock and requiring its use by the bargaining unit employees, unilaterally without first notifying and affording the Union the opportunity of demanding nego- tiations thereon, the Employer violated 26 M.R.S.A. Sec. 964(1)(E). Changes in the mandatory subjects of bargaining implemented unilat- erally by the public employer contravene the duty to bargain created by Sec. 965(1) of the Act and violate 26 M.R.S.A. Sec. 964(1)(E). The rationale behind this principle of labor law is that an employer's uni- lateral change in a mandatory subject of bargaining "is a circumven- tion of the duty to negotiate which frustrates the objectives of [the Act] much as does a flat refusal." NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962); Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 1982). In order to constitute a violation of Sec. 964(1)(E), three elements must be present. The public employer's action must: (1) be unilateral, (2) be a change from a well-established practice, and (3) involve one or more of the mandatory subjects of bargaining. Bangor Fire Fighters Association v. City of Bangor, MLRB No. 84-15, at 8 (Apr. 4, 1984). An employer's action is unilateral if it is taken without prior notice to the bargaining agent of the employees involved in order to afford said representative a reasonable opportunity to demand negotiations on the contemplated change. City of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1135 (Me. 1982). There is no question that the Employer installed the time clocks and required their use by the hourly employees in the bargaining unit -4- without advance notice to or negotiations with the Union. Memorandum on behalf of the Employer, at 2-3. Furthermore, the Employer has agreed, at page 2 of its Memorandum, that the long-standing practice was that each of the hourly bargaining unit employees manually recorded his or her hours worked each week on a time card and was then paid for the total hours worked at an established hourly rate. The use of the mechanical time recording system clearly is a departure from the established practice. The first two criteria for establishing an unlawful unilateral change are, therefore, present in this case. The remaining issue is whether the installation of the time clocks and the requirement that they be used by the hourly employees in the bargaining unit involve one or more of the mandatory subjects of bargaining: wages, hours, working conditions or contract griev- ance arbitration. 26 M.R.S.A. Sec. 965(l)(C). Since the question pre- sented is one of first impression for the Board, we will "look for guidance to parallel federal law, found in the National Labor Relations Act and decisions thereunder" in reaching our conclusion. Baker Bus Service v. Keith, 428 A.2d 55, 56 n.3 (Me. 1981). The leading decision of the National Labor Relations Board ("N.L.R.B.") concerning the installation of time clocks is Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976). In that case, like that now before the Board, the employer unilaterally installed time clocks which unit employees were required to use in recording their time at work. Previously, employees had been required to enter their working time manually on printed cards which were substantially similar to those formerly used in Eastport: Employer's Exhibit No. 1. The employees' bargaining agent charged that the employer's actions violated the section of the National Labor Relations Act, 29 U.S.C.A. Sec. 158(a)(5), which is parallel to 26 M.R.S.A. Sec. 964(1)(E). The N.L.R.B., affirming the administrative law judge's dismissal of the union's complaint, outlined its rationale as follows: We agree with the Administrative Law Judge that the [employer] did not violate Section 8(a)(5) of the Act by unilaterally initiating a more dependable method of enforcing its longstanding rule that employees record their time "in and out." In the circumstances of this case, it is -5- clear that while the change to a mechanical procedure for recording working time marked a departure from the previous practice, more importantly the rule itself remained intact. And to those employees who had conscientiously followed this rule in normally marking their timecards, the new timeclock procedure would have been inconsequential. Therefore, the General Counsel's reliance on Murphy Diesel Company [184 N.L.R.B. 757 (1970)], and similar cases, is misplaced. For in Murphy we found that the respondent employer initiated new and more stringent rules which represented a "material, substantial, and a significant change" from prior practice. We find no such radical change in the circumstances of this case. See Wabash Transformer Corp., Subsidiary of Wabash Magnetics, Inc., 215 NLRB 546 (1974). While there is some evidence that the [employer] was lax in enforcing its rule, we cannot say that such inatten- tiveness raised the former normal procedure to the level of a term and condition of employment which the [employer] was required to bargain over before changing. For absent discrimination, an employer is free to choose more efficient and dependable methods for enforcing its workplace rules. Rust Craft, supra, at 327. When faced with similar factual cir- cumstances, the N.L.R.B. has consistently ruled that the installation and mandatory use of time clocks, without a change in existing work rules, does not violate the duty to bargain. BNA, Inc., 235 NLRB 8 (1978); Moody Chip, Inc., 243 NLRB 265 (1979); and American Ambulance, 255 NLRB 417 (1981), enforced sub nom. American Ambulance v. N.L.R.B., 684 F.2d 609 (9th Cir. 1982). The Union urges that we follow the result reached by the N.L.R.B. in Nathan Littauer Hospital Ass'n., 229 NLRB 1122 (1977), in resolving the instant controversy. In that case, the employer unilaterally installed a time clock and adopted new work rules which not only required the Registered Nurse bargaining unit employees to use the clock but also docked the pay of such employees when they were tardy or when they departed early from work. Id. at 1125. Prior to the employer's actions, the nurses had only been required to record their overtime hours worked and they had not had their pay docked for tar- diness, early departure, or absence. Id. at 1124. The bargaining agent's complaint alleged that the installation of the clock and adop- tion of the new work rules, without prior negotiations with the union, constituted a "material, substantial and significant change" in the -6- bargaining unit employees' working conditions and, therefore, violated the statutory duty to bargain. Id. The employer argued that man- datory use of the clock was required to "assure compliance with 'appli- cable statutes'"--apparently referring to the wage and hour require- ments of the Federal Fair Labor Standards Act (29 U.S.C.A. Sec. 201, et seq.), id. at 1125,--and that the time clock requirement was "merely a 'more efficient and dependable method of enforcing.its work place rules' within the scope of Rust Craft Broadcasting, supra." Id. at 1124. The Administrative Law Judge, who conducted the evidentiary hearing for the N.L.R.B., rejected the employer's averment that use of the clock was required to "assure compliance with 'applicable stat- utes'" because, as professional employees, the Registered Nurses were exempt from the wage requirements of the Fair Labor Standards Act. Id. at 1125. Since the time clock requirement and its associated work rules "involve[d] imposition of a time-recording requirement rather than merely a change in the manner of recording time," id. at 1125, the Administrative Law Judge held that the employer's actions violated the statutory duty to bargain. Id. at 1126. In affirming the Administrative Law Judge's decision, the N.L.R.B..stated: In agreeing with the Administrative Law Judge that Respondents' action violated Section 8(a)(5) and (1) of the Act, we find it unnecessary to consider or rely on any distinction which may be drawn between professional and nonprofessional employees. Nor need we pass upon whether or not Respondents' registered nurses qualify as exempt employees under the Fair Labor Standards Act. Instead, we predicate our Decision upon the fact that Respondents pro- mulgated and implemented a new requirement governing the recording of time and established rules and disciplinary provisions designed to enforce said requirement, without bargaining with the Union. In the circumstances of this case, Respondents' conduct amounted to a refusal to bargain about material, substantial, and significant changes in rules and practices which vitally affected employment con- ditions and employee tenure. See Murphy Diesel Company, 184 NLRB 757 (1970). Id. at 1122. Although the N.L.R.B. reached a result contrary to that in the cases cited in the preceding paragraph, the rationale of Littauer is consistent with that announced in those cases; the unilat- eral installation of a time clock, without a change in work rules, is not a change in working conditions that violates the statutory duty to -7- bargain. We find the above-cited federal precedents to be persuasive and therefore conclude that, absent a change in existing work-rules, the installation and mandatory use of time clocks by bargaining unit employees does not constitute a significant or material change in one or more of the mandatory subjects of bargaining. In the case before us, the employees required to use the time clocks are compensated on an hourly basis and, in the past, they were required to manually record their hours worked each week on time cards. We hold that, in the circumstances, the Employer's actions did not violate Sec. 964(1)(E) of the Act. Had they occurred in a different factual context, the Employer's actions may well have violated the Act. Work rules are mandatory sub- jects of bargaining; therefore, the work rules could not have been changed without prior notice to and, if requested, negotiations with the bargaining agent. Portland Firefighters Ass'n. v. City of Portland, MLRB No. 83-01, at 5 (June 24, 1983), aff'd Portland Firefighters Ass'n. v. City of Portland and M.L.R.B., 478 A.2d 297 (Me. 1984). Second, had unlawful discrimination been present or if the installation of the time clock had been part of a course of conduct whose natural result was to interfere with, restrain, or coerce public employees in the exercise of the rights protected by the Act, requiring the use of such clock might violate other sections of the Act or might constitute evidence of such unlawful conduct. See e.g. Truckdrivers Local 164, 267 NLRB 8, 17 (1983), aff'd mem., N.L.R.B. v. Truck Drivers Union Local 164, 753 F.2d 53 (6th Cir. 1985). The final allegation in the Union's complaint is that the Employer's actions violated 26 M.R.S.A. Sec. 964(1)(C). We have hereto- for noted that that section of the Act "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby poten- tially dominating it." Teamsters Local 48 v. Town of Kittery., MLRB No. 84-25, at 4 (July 13, 1984), citing Northern Aroostook Teachers Ass'n v. M.S.A.D. No. 27 Board of Directors, MLRB No. 81-52, at 7 (Nov. 19, 1981). The present case does not involve a situation where the -8- Employer either participated in or otherwise supported the activities of the Union. The Board holds, therefore, that the Employer did not violate 964(1)(C) of the 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 the provisions of 26 M.R.S.A. Sec. 968(5)(C) (1974), it is ORDERED: That the prohibited practices complaint, filed on May 31, 1985 in Case No. 85-18, as amended, be and hereby is dismissed. Dated at Augusta, Maine, this 10th day of October, 1985. MAINE LABOR RELATIONS BOARD /s/________________________________ Edward S. Godfrey The parties are advised of Chairman their right pursuant to 26 M.R.S.A. 968(5)(F) (Supp 1984-1985) to seek review @f this decision and order by /s/________________________________ the Superior Court by filing Thacher E. Turner a complaint in accordance Employer Representative with Rule 80B of the Rules of Civil Procedure within 15 days of the date of the decision. /s/________________________________ Russell A. Webb Alternate Employee Representative -9-