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contention was, therefore, withdrawn.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
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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
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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
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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
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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
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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
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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
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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
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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
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