STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 89-18
Issued: September 1, 1989
________________________________________
)
ORONO FIRE FIGHTERS ASSOCIATION, )
LOCAL 3106, INTERNATIONAL ASSOCIATION )
OF FIRE FIGHTERS, AFL-CIO-CLC, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF ORONO, )
Respondent. )
________________________________________)
On March 24, 1989, the Orono Fire Fighters Association, Local 3106, Inter-
national Association of Fire Fighters, AFL-CIO-CLC ("Union"), filed an amended
prohibited act complaint with the Maine Labor Relations Board ("Board")
alleging that the Town of Orono ("Town") violated the Municipal Public Employees
Labor Relations Law ("MPELRL"), 26 M.R.S.A. 963, 964(1)(A), (B), (C) and (E),
and 965(1)(C) (1988). More specifically, the complaint alleges unilateral
changes in the hours, wages, working conditions and other mandatory subjects of
bargaining without notice to the bargaining agent; direct dealing with a unit
employee; failure to provide information (in violation of the freedom of infor-
mation laws, as well as MPELRL); discriminatory application of the collective
bargaining agreement; and threat of layoff and other actions taken with the
intent to interfere with union activities. Tne Town's answer denies each of the
Union's allegations and requests deferral to the grievance procedure contained
in the parties' collective bargaining agreement.
On May 2, 1989, Board Alternate Chairman Jessie B. Gunther convened a pre-
hearing conference in this matter. Her May 6, 1989 Prehearing Conference
Memorandum ano Order is incorporated in and made a part of this decison and
order.
Alternate Chairman Peter T. Dawson presided at the May 31, 1989 evidentiary
hearing, accompanied by Employee Representative George W. Lambertson and
Employer Representative Thacher E. Turner. John J. Finn, Esquire, represented
the Union, and Thomas C. Johnston, Esquire, represented the Town. The parties
-1-
were given full opportunity to examine and cross-examine witnesses, to introduce
documentary evidence, and to make oral argument. The parties filed posthearing
briefs, the last two of which were received on June 30, 1989.
JURISDICTION
The Complainant Union is the recognized bargaining agent, within the meaning
of 26 M.R.S.A. 962(2) (1988), for a bargaining unit composed of all fire-
fighters and captains employed by the Town. The Town is the public employer of
the employees in that unit, within the meaning of 26 M.R.S.A. 962(7) (1988).
The jurisdiction of the Board to hear this case and to render a decision and
order lies in 26 M.R.S.A. 968(5) (1988).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. John Allen Robichaud has been employed by the Town of Orono fire depart-
ment for 21 years, full time for over 18 years. He was promoted to the position
of fire suppression shift captain in December of 1979.
2. In September of 1986, Robichaud was appointed to the position of
assistant code enforcement officer, retaining the title of captain in the fire
department. He continued to work a round-the-clock fire suppression shift sche-
dule, doing his code enforcement work as he could fit it in, until the Town was
able to provide a replacement for him.
3. At the time of his appointment to the position of assistant code enforce-
ment officer, Robichaud was a member of a bargaining unit of fire captains
represented by Teamsters Local Union No. 48 ("Teamsters"). The Teamsters also
represented a bargaining unit of firefighters. Collective bargaining agreements
covering the captains' unit and the firefighters' unit were in effect at the
time of Robichaud's appointment.
4. Robichaud stopped doing round-the-clock fire suppression work in January
of 1987. At that time he started working a 53-hour-per-week, daytime shift. He
worked from 7:00 a.m. to 5:00 p.m. Monday through Friday, for a total of 50
hours; the remaining 3 hours were used to attend meetings of the town council,
the planning board and the board of appeals, and to attend other functions rele-
vant to his job.
-2-
5. In a memo dated March 19, 1967, Fire Chief Duane P. Brasslett made a
formal recommendation to Town Manager Bruce A. Locke regarding Robichaud's
appointment to the code enforcement position:
I would like to recommend that John A. Robichaud be appointed
to the position of full time Assistant Code Enforcement
Officer/Captain. He will retain his Captain's rank and senior-
ity in the Fire Department.
John's holidays will be treated as days off without the one-fifth
pay. Any hours he may work during any holiday period will be
compensated at the time and one-half rate over and above his
regular weeks (sic) pay.
John will work Monday through Friday, 7:00 a.m. to 5:00 p.m.
Any hours worked over 216 in a 28-day cycle will be compensated
at the time and one-half rate.
The Town stopped paying Robichaud the one-fifth holiday pay sometime early
in 1987.
6. In July of 1987, after elections in the captains' and firefighters'
bargaining units that resulted in decertification of the Teamsters and cer-
tification of the Union as the bargaining agent for each, the Town and the Union
agreed to merge the units.
7. A new collective bargaining agreement was negotiated for all members of
the combined unit, including Robichaud; the agreement, dated March 1, 1988,
retroactively covered the period from July 1, 1987, until midnight June 30, 1989
("1987/89 agreement").
8. Provisions of the 1987/89 agreement, or portions thereof, relied on by
one or both parties or otherwise relevant to our decision, are as follows:
ARTICLE 3 - MANAGEMENT RIGHTS & DEPARTMENT RULES
The Town retains all rights and authority to manage
and direct its employees, except as otherwise
specifically provided in this Agreement . . . .
ARTICLE 7 - WORK WEEK
Section 2: If the Town reduces or changes the work
week during the life of this contract, the Town agrees
not to reduce base wage paid employees. The Town
further agrees to give employees a 30-day notice before
implementing any schedule changes and to consult with
the Union regarding matters of concern.
-3-
ARTICLE 8 - WAGES
Section 2: Fire Captains will be compensated under
the following pay scale:
Effective July 1, 1987 Effective July 1, 1988
$430.00 $445.00
ARTICLE 11 - HOLIDAYS
Section 1: Each full-time shift employee shall be
paid one-fifth of his regular week's wage for the
following holidays:
New Year's Day Labor Day
Martin Luther King Day Columbus Day
Washington's Birthday Veteran's Day
Patriot's Day Thanksgiving Day
Memorial Day Friday after Thanksgiving
Independence Day Christmas Day
Section 2: An employee who works during a holiday
shall receive time and one-half his hourly rate for
actual hours worked on the holiday in addition to
holiday pay.
ARTICLE 12 - VACATIONS
Section 1: All full time employees within the unit shall
receive annual vacation leave according to the following
schedule (As long as the Town maintains the present
work schedule):
Completion of one year of service (2 weeks) 5 shifts
Completion of six years of service (3 weeks) 7 shifts
Completion of twelved years of service (4 weeks) 9 shifts
Section 2: If the Town reduces the work week, the
vacation leave shall be adjusted to reflect such change.
ARTICLE 34 - MAINTENANCE OF STANDARDS
Section 1: General working conditions not specified
in this agreement shall be maintained for covered employees
at a level not less favorable than those existing on the
date of the execution of this agreement . . . .
-4-
9. Lorin F. LeCleire is currently a fire suppression shift captain in the
fire department. He has been president of the local union since 1981, and nego-
tiated the 1987/89 agreement, as well as at least two previous agreements, for
the fire captains and firefighters in the department.
10. LeCleire did not receive notice from the Town of the changes made in
Robichaud's working conditions, as outlined in paragraphs 4 and 5 above, at the
time they were made in 1987. He did thereafter, through observation, become
aware that Robichaud was working a daytime shift, and of the fact that he was
no longer in the "rotational wheel" for overtime. LeCleire first became aware
of the change in holiday pay for Robichaud in 1989, in connection with his
attempts to get information regarding an investigation of the Town by the U.S.
Department of Labor ("DOL"), as described below. LeC]eire did not know that
the holiday pay change had occurred in 1987, until he was shown a copy of the
Town's 1987 memo at the prehearing conference on May 2, 1989.
11. In negotiations for the 1987-89 agreement, the Union suggested to the
Town that failure to pay Robichaud overtime for all hours worked over 40 per
week was a violation of the Fair Laoor Standards Act ("FLSA"). Tne Town main-
tained that Robichaud was covered by the section 7(k) exemption from the
coverage of FLSA1. As with other employees of the fire department, the Town
continued to pay Robichaud overtime only if he averaged more than 53 hours of
work per week during a three-week shift. In December of 1988, LeCleire
complained to the U.S. Department of Labor ("DOL") that violations in the com-
putation of overtime pay for certain employees, including Robichaud, were
occurring.
12. On February 2, 1989, after investigating LeCleire's complaints, DOL
informed the Town that Robichaud was not covered by the 7(k) exemption; it
also informed the Town that overtime pay was due, retroactive to January
of 1987, when Robichaud had been taken off round-the-clock fire suppression
work.
____________________________
1Section 7(k) of the FLSA, 29 U.S.C. 207(k) (Supp. 1989), provides that fire
protection employees may work 53 hours during a 7-day cycle, 216 hours during a
28-day cycle, or a proportional number of hours for cycles between 7 and 28
days, without being eligible for FLSA-mandated overtime pay.
-5-
13. Shortly therafter, in the third of a series of three meetings between
Fire Chief Brasslett and Robichaud, Brasslett notified Robichaud that to comply
with FLSA requirements, the Town would be reducing his work schedule to 48 2/3
hours per week. He was told he would be paid at his normal hourly rate for the
40 hours he worked Monday through Tnursday, and time and one-half for 8 2/3
hours of work on Friday. Robichaud's time sheets indicate that these changes were
actually instituted beginning the week of February 5, 1989, three days after the
February 2nd meeting at which DOL advised the Town of its FLSA violations.
14. The Union Was never given notice by the Town of the new arrangement
regarding Robichaud's decreased hours or the allocation of overtime on his
time cards.
15. In a memo to Town Manager Bruce A. Locke dated February 9, 1989,
Brasslett made a formal recommendation regarding those two changes:
I would like to recommend that Capt. John Robichaud's work
schedule will be 10 hour days on Monday through Thursday of
each week, 7:00 am until 5:00 pm. On Friday he would work
8 & 2/3 hours as overtime from 7:00 am until 3:40 pm.
This schedule would allow me to use John to cover in the Fire
Department on Monday, Tuesday, and Wednesdays during the day
when we are down to three men on shift. On Thursday and Fridays
I have 4-man crews during the day.
John will continue to attend Planning Board and Council meet-
ings as needed. This time will have to be paid at the time
and one-half rate or comp time off.
16. Although the precise dates are unclear, on at least six occasions during
this time period LeCleire requested information from Brasslett concerning the
status of the DOL investigation and requested access to department payroll
records. On each occasion he was rebuffed.
17. In a letter dated February 8, 1989, LeC]eire provided Town Manager
Locke with a 10-day notice to bargain pursuant to 26 M.R.S.A. 965(B) (1988).
The notice did not specify the subjects to be negotiated.
18. On February 15, 1989, Robichaud received back pay from the Town in the
amount of $3290.56, for the time period between January 23, 1987, and January
-6-
23, 1989, in connection with the DOL investigation and findings. The $3290.56
due was established, without specific explanation, by DOL.
19. On February 16, 1989, negotiations began on a new collective bargaining
agreement for captains and firefighters, in response to the Union's 10-day notice
to bargain of February 8th.
20. On February 20, 1989, having received nothing in response to his verbal
requests, LeC]eire made a written request to Chief Brasslett for the following
information:
1. The base weekly wage of each fire department employee,
before overtime payments.
2. The number of hours used to figure overtime payment, such
as forty, or fifty three.
3. Hourly rates for each employee, straight time and
overtime rates.
4. Standard work schedules and hours of work for employees
in a normal week before overtime.
21. On March 6, 1989, the second negotiating session for a new collective
bargaining agreement occurred. As of that date, the information requested in
LeCleire's February 20th letter had not been provided.
22. On March 9, 1989, the Union filed a prohibited practices complaint
with the Board. In order to correct some deficiencies in the complaint, the
Union filed an amended complaint on March 24th.
23. By letter dated March 10, 1989, DOL provided a copy of its Narrative
Report, with certain deletions, indicating the results of its investigation; the
report was in response to a federal Freedom of Information Act request made by
LeCleire.
24. On March 19, 1989, the Union filed a grievance with Chief Brasslett,
based on actions of the Town during and after the DOL investigation, and in
order to preserve its contract grievance rights in the event of deferral of
the prohibited practice complaint by the Board.
25. On March 29, 1989, one day prior to the third contract negotiating
session and 37 days after LeCleire's written request for information to
Brasslett, the Town provided LeCleire with payroll information for Robichaud
-7-
covering 5 weeks of work; copies of receipts for payment of back wages to
Robichaud and three other employees made pursuant to the DOL investigation;
assigned overtime sheets for the fire department covering a period of 6 months;
and time cards for Robichaud covering 5 weeks of work.
26. On April 7, 1989, LeCleire filed an appeal with Locke of the denial of
the grievance by Brasslett.
27. On April 11, 1989, LeC]eire and Locke met regarding the grievance. On
April 17, Locke denied the grievance, stating in part:
After reviewing the pertinent records and discussions with
the Union, I deny the grievance on the basis that there is no
violation. The scope of work performed by John Robichaud has
not changed, his hourly rate has not changed, and his benefits
have not changed during the term of this contract. His regular
working schedule has changed by reducing the number of his
regularly scheduled hours of work per week from 53 to 48 and 2/3.
However, the basic pattern of his work schedule has not changed.
By contract, the Town retains the right to reduce or change
the working schedule of its employees, provided there is no
reduction of the base wage paid to an employee. We provided
John with notice before implementing this schedule change, and
we have been consulting with the Union regarding matters which
the Union finds of concern in this regard. Thus, I believe
that the obligation of the Town under Article 7, Section 2
has been met.
28. On May 7, 1989, Arbitrator Robert D. Curley issued an Opinion and
Award in an arbitration between the Union and the Town regarding the use of
Robichaud to cover for unscheduled absences of fire suppression shift captains
occurring between 7:00 a.m. and 5:00 p.m. Section 1 of Article 7 of the 1987/89
agreement states: "The Town agrees to maintain a minimum of three personnel on
duty at any one time. Current staffing of three personnel per shift, normally
one Captain and two Firefighters, shall not be reduced." The issue before the
arbitrator, as framed by him, was:
Did the Town violate the Collective Bargaining Agreement,
specifically Articles 7 and 10, when the Town assigned Captain
John Robichaud to fire duties during his daytime shift as one
of the three (3) minimum fire personnel?
In his May 7th award, the arbitrator found:
[T]here was a clear and unmistakable pattern or practice
dating from 1986 that the Code Enforcement/Captain position
-8-
was and continued to be part of minimum three personnel on
duty per shift.
. . . .
I find that the terms, "Current staffing" as used in Article
7 of the July 1, 1987 to June 30, 1989 Agreement between the
parties includes the position of Code Inspector/Firefighter
[reference to exhibit omitted] as it pertains to the minimum
staffing requirement of three personnel per shift.
DISCUSSION
The Town's first defense to the Union's complaint is that the matter should
be deferred to the grievance procedure in the parties' collective bargaining
agreement. The Board finds that deferral in not appropriate in this case.
The Board is authorized to prevent the prohibited acts enumerated in 26 M.R.S.A.
964. "This power shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement, law or otherwise."
26 M.R.S.A. 968 (5)(A) (1988). Thus, when an act by an employer, employee or
bargaining agent violates a collective bargaining agreement and also constitutes
a prohibited practice, the Board is empowered to address the violation, even
if a contractual remedy is available.
There are circumstances in which the Board will defer to the contractual
grievance process, while retaining jurisdiction over the prohibited practice
complaint "for the purpose of taking appropriate action should further pro-
ceedings be required." Maine State Employees Assoc. v. State of Maine, No.
86-09, slip op. at 6, 9 NPER ME-17010 (Me.L.R.B. Apr. 23, 1986) (decision and
interim order). Deferral of the entire case is not appropriate in this
instance, however, since not all of the alleged statutory violations are viola-
tions of the contract, resolvable tnrough the contractual grievance mechanism.
The alleged violations are all related to each other factually; the parties have
gone to considerable trouble and expense to present and argue the case before
the Board; and the matter is ripe for decision. Therefore deferral of that por-
tion of the case that is resolvable through the grievance procedure would not
provide for an orderly settlement of the matter, but rather would simply prolong
its ultimate resolution and add to its expense. We decline to do such damage to
the principles of deferral; we will consider the merits of the Union's
complaint, to the extent that it alleges violations of MPELRL. Where interpre-
-9-
tation of the collective bargaining agreement is necessary to determine whether
statutory violations have occurred, we will do so. See State of Maine v. Maine
State Employees Assoc., 499 A.2d 1228, 1230 (Me. 1985).
Direct dealing
An employer's direct dealing with an employee represented by a collective
bargaining agent is inherently destructive of the collective bargaining process.
Augusta Uniformed Firefighters Assoc. v. City of Augusta, No. 75-16, slip op. at
2 (P.E.L.R.B. May 13, 1975). "It is of course a venerable principle of labor
law that 'an employer acts in bad faith and violates the Act by dealing directly
with its employees concerning their working conditions at a time when they are
represented by an exclusive bargaining representative.'" MSEA v. Bangor Mental
Health Inst., No. 84-01, slip op. at 6, 6 NPER 20-15004 (Me.L.R.B. Dec. 5,
1983), citinq Farm Crest Bakeries, 241 N.L.R.B. 1191, 1196-97 (1979). This
Board went on to explain that "[t]he injury suffered by the bargaining agent
when the employer deals directly with represented employees is 'not that flowing
from a breach of contract [but] to the union's status as a bargaining represen-
tative." Id. at 7, citing C & C Plywood Corp., 163 N.L.R.B. 1022, 1024 (1967),
enforced sub nom. NLRB v. C & C Plywood Corp., 413 F.2d 1112 (9th Cir. 1969).
The question the Board must decide here is whether the meeting between Robichaud
and Chief Brasslett regarding his new schedule and allocation of time on time
cards amounted to direct dealing. We find that it did not.
According to testimony by Robichaud, he had approximately three meetings
with Brasslett. The first two were in response to inquiries from Robichaud
regarding the progress of the DOL investigation. At the third meeting, Brasslett
advised Robichaud that the Town was required by DOL to comply with the standards
of the FLSA; in addition, Brasslett advised him of the means the Town was going
to use to comply. Robichaud testified that he was agreeable to the changes, did
not question whether the method chosen to comply was a proper one, and did not
question what the existing collective bargaining agreement might require. No
evidence was presented to contradict Robichaud's testimony, and the Union
admitted that it had no idea what had gone on "behind closed doors."
The Board agrees with the Union that assent to a change by an employee
does not mean there has been no direct dealing. See BMHI, slip op. at 9-10.
However, the inquiry does not end there. It is the employer's conduct that is
-10-
key to a finding of direct dealing, and the distinction between notice to an
employee regarding a change in working conditions, and a proposal for such a
change, is determinative. In Complainant's Brief the Union characterizes the
changes in Robichaud's work schedule as "proposed" changes. Were that the case,
the Board would have no difficulty finding a violation of sections 964 (1)(A)
and (E) of the municipal law, as the Union urges. The record, however, does not
support the Union's characterization.
Nor does the Union's reliance on the facts in BMHI help its cause. In
that case, Terry Morton, the Director of Nursing, facing a shortage of volun-
teers for coverage of the 11-7 nurses' shift at the Bangor Mental Health
Institute, called a meeting at which she told the nurses "she needed a resolu-
tion of the shift coverage problems at the end of the meeting, and then pro-
ceeded to take suggestions." Id. at 7-8. As the Board pointed out, Morton did
not bargain with the nurses in the traditional sense of exchanging proposals and
making compromises back and forth. What she did do was present them with the
problem and put the burden on them to resolve it -- a more blatant form of
interference and coercion than traditional bargaining would have been. We see
no parallel between the situation in the BMHI matter and the situation here.
While the Town's notice to Robichaud regarding changes in his working conditions
has ramifications for the Union's allegation of unilateral change, it does not
constitute direct dealing.
Failure to provide information
Three of the Union's allegations -- refusal to provide information,
discriminatory application of the bargaining agreement, and threat of layoff and
other actions taken with the intent to interfere with union activities --
appeared in paragraph 8 of the amended complaint, which paragraph was addressed
in the prehearing memo:
The allegations of Paragraph 8 of the Complaint in
89-18, which are generally denied, will be addressed to
develop the background of the Town's actions, rather than
to provide a basis for Board relief. The parties agree that
the information referred to in part of that paragraph has been
provided.
Prehearing Conference Memorandum and Order, No. 89-18 (May 6, 1989). It is
unclear whether this statement represents an agreement between the parties that
-11-
the three allegations of paragraph 8 would not be pursued at hearing. In fact,
the second and third allegations were not pursued either during the evidentiary
hearing or in posthearing briefs, and are deemed withdrawn in any case.
Westbrook Police Unit v. City of Westbrook, No. 81-53, slip op. at 5, 4 NPER
20-12033 (Me.L.R.B. Aug. 6, 1981); Coulombe v. City of South Portland, No.
86-11, slip op. at 9, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). However, the
allegation of failure to provide information was pursued at hearing and in the
posthearing briefs of both parties. Consequently, by their subsequent conduct
the parties clearly abandoned any agreement they may have made at the prehearing
conference. We will consider the evidence and arguments and determine whether
or not a violation of MPELRL occurred. The Board has no authority to consider
the Union's allegation that the failure to provide information is also a viola-
tion of the freedom of information laws. That allegation is hereby dismissed.
Lorin LeCleire, president of the local union, testified that "at least six
times verbally" he asked Chief Brasslett to see Robichaud's payroll records,
after noticing that time cards for Robichaud were missing from the time card
rack in the duty office during the DOL investigation. Each time he was
rebuffed. LeCleire then made the request in writing on February 20th, after
having noticed that Robichaud was working a new schedule. The Town did not pro-
vide the information requested until March 29th -- 37 days later.
The Town has conceded, both at hearing and in its posthearing brief, that it
did not provide the information in a timely fashion. It first defends its inac-
tion by pointing to the fact that the information was eventually made available,
and that bargaining over Robichaud is now occurring. We find that argument
unpersuasive, since the Union was obviously and understandably interested
in asserting its rights under the contract then in effect, and not simply in
bargaining a new contract.
In addition, the Town says that the Union did not adequately inform the Town
of the purpose behind its 10-day notice to bargain, and didn't relate its writ-
ten information request of February 20th to the change in the code enforcement
officer's schedule. If the Union had done so, the Town argues, the Town would
have responded more quickly.
We know of no rule requiring a union to inform an employer of the specific
purpose behind a request for information, as long as the request is reasonably
-12-
related to the performance of its duties as a bargaining agent. In any case,
given the verbal interchanges between LeCleire and Brasslett regarding access to
Robichaud's payroll records, it is difficult to imagine that the Town was in the
dark as to the purpose behind the written request. LeCleire had already told
the chief that he believed the Union was entitled to be involved in how to
respond to DOL's findings. We find disingenuous the suggestion that "base
weekly wage of each fire department employee," "the number of hours used to
figure overtime payment such as forty, or fifty-three," and "standard work sche-
dules and hours of work" appeared to the Town to have nothing to do with the
Robichaud dispute.
Furthermore, even if the Town had somehow put that dispute out of its mind
and had interpreted the written request to be related only to general bargaining
for a new contract, it was obligated to provide the information in a timely
manner. As the Board has pointed out previously:
[T]he law is crystal clear in this area: "The duty to bargain
collectively ... includes a duty to provide relevant information
needed by a labor union for the proper performance of its
duties as the employees' bargaining agent." MSAD No. 45 v.
MSAD No. 45 Teachers Association, MLRB No. 82-10 at 10, (Sept.
17, 1982), quoting Detroit Edison Co. v. NLRB, 440 U.S. 301,
303 (1979).
BMHI,slip op at 11. Unless the Union is provided with the information it
requests in a timely manner, the right to information is a hollow one indeed.
In the estimation of this Board, a delay of 37 days does not evidence an intent to
bargain in good faith. We find that the Town's refusal to provide the Union
with information in a timely manner constitutes a violation of its duty to
bargain as well as unlawful interference with employees' free exercise of their
right to bargain collectively. Since the Town has violated 26 M.R.S.A.
964(1)(A) and (E)(1988), we will order it to cease and desist from refusing
to provide information to the Union relevant to the performance of its duties as
the bargaining agent, and to take affirmative action to provide such information
in a timely manner whenever it is requested.
Unilateral change
The Union alleges that the Town made changes in the hours, wages, working
conditions and other mandatory subjects of bargaining of a unit employee,
-13-
without notice to the bargaining agent. More specifically, it alleges unila-
teral change in Robichaud's base and holiday wages, hours, sick leave, vacation,
holidays anu other conditions of work, in violation of 26 M.R.S.A. 963,
964(1)(A), (B), (C) and (E), and 965(1)(C) (1988). The Town denies these allega-
tions. To support their respective positions, both parties rely on provisions
in the collective bargaining agreement that was in force through June 30, 1989.
Section 965(1l) of MPELRL, 26 M.R.S.A. 965(1) (1988), sets out the duty of
both the employer and the bargaining agent to bargain collectively with respect
to wages, hours, working conditions and contract grievance arbitration. 26
M.R.S.A. 965(1)(C) (1988). That obligation is enforced against employers through
26 M.R.S.A. 964(1)(E), and against bargaining agents through 964(2)(B) (1988).
Inherent in the duty to bargain is a prohibition against making unilateral
changes in the mandatory subjects of bargaining.
Changes in the mandatory subjects of bargaining implemented
unilaterally by the public employer contravene the duty to
bargain created by 966(l) of the Act and violate 26 M.R.S.A.
964(1)(E). The rationale behind this principle of labor
law is that an employer's unilateral change in a mandatory
subject of bargaining "is a circumvention of the duty to
negotiate which frustrates the objectives of [the Act] much
as does a flat refusal" [to negotiate]. 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. 1962).
In order to constitute a violation of 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 bargaininq. Banqor Fire Fighters Association v. City of
Bangor, MLRB No. 84-15, at 8 (Apr. 4, 1964). 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 representatives 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).
Coulombe, slip op. at 11-12, citing Teamsters Local Union No. 48 v. Eastport
School Dept., No. 85-18, slip op. at 4, 8 NPER ME-17003 (Me.L.R.B.
Oct. 10, 1985).
There are four exceptions to the unilateral change rule:
-14-
We recognize, however, that a public employer's uni-
lateral change in a mandatory subject of bargaining during
negotiations may be persmissible, if consistent with offers
made to the bargaining agent during negotiations, in four
very limited situations. In general terms, these four ex-
ceptions to the rule against unilateral changes may occur
as follows: (1) when a bona fide impasse has been reached
between the negotiating parties, see, eg., NLRB v. Inter-
coastal Terminal, Inc., 286 F.2d 954, 958 (5th Cir. 1961);
(2) when important business exigencies require immediate
managerial decision, see, e.g., Pasco County School Bd. v.
Florida Public Employees Relations Comm., 96 LRRM 3347, 3358-
3359 (Fla. Dist. Ct. App.) (1977); (3) when the union has
waived its right to bargain about the unilateral change, see,
e.g., U.S. Lingerie Corp., 170 N.L.R.B. 750,-751-752 (1968);
and (4) when the unilateral change results from a traditional
practice which existed prior to the commencement of negoti-
ations, see, eg., McCulloch Corp., 132 N.L.R.B. 201, 213-314
(1961).
Maine State Employees Assoc. v. State of Maine, No. 78-23, slip op. at 4
(Me. L.R.B. July 15, 1978). aff'd sub nom. State of Maine v. Maine Labor
Relations Bd., 413 A.2d 510, 2 NPER 20-11O24 (Me. 1980); Teamsters Local Union
No. 48 v. Town of Livermore Falls, No. 80-22, slip op. at 4, 2 NPER 20-11039
(Me.L.R.B. Aug. 20, 1980).
In order to minimize confusion, we will consider the allegations regar-
ding the reduction in hours, the change in base wage, and associated potential
impacts of those changes, separately from allegations regarding changes in
benefits that occurred prior to and independent of the DOL investigation.
Unilateral change - February 89
Though the Town suggests in its posthearing brief that the changes in
response to the DOL investigation do not meet the three-pronged test defining a
unilateral change, its arguments in reality go to the exceptions to the rule on
unilateral change. Tne Town argues that the 1987/89 agreement gave the Town the
authority to make those changes; the Town also asks the Board to "keep in mind"
that it was obliged to comply with DOL's decision regarding payment of overtime.
We take the first argument to be one of waiver and the second to be an argument
of business exigency.
Tne Town relies on Articles 3, 7 and 34 of the 1987/89 agreement for the
authority to make those changes without notification to the Union -- that is,
-15-
for its argument of waiver by the Union. Reliance on Article 3 is misplaced and
will not be considered further, since the first sentence of that article states:
"The Town retains all rights and authority to manage and direct its employees,
except as otherwise specifically provided in this Agreement." [Emphasis added.]
Since Article 7, section 2 of the agreement addresses changes in the work week
and maintenance of base wage, Article 3 is inapplicable.
The Town's reliance on Article 34 suffers from the same problem. Section 2
of that article requires, in part: "General working conditions not specified in
this agreement shall be maintained for covered employees at a level not less
favorable than those existing on the date of tne execution of this agreement."
[Emphasis added.] The fact that the changes in Robichaud's working conditions
may be more favorable is irrelevant, since once again, the working conditions at
issue here -- the length of the work week and the base wage paid to the employee --
are specifically addressed in other provisions of the agreement.
It is Article 7, section 2 of the agreement that goes to the heart of this
particular aspect of the Union's prohibited practice complaint. In order to
determine whether the Union waived its bargaining rights, or whether unilateral
changes have taken place in violation of MPELRL, we must interpret that contract
provision. Article 7 section 2 states:
If the Town reduces or changes the work week during the life
of this contract, the Town agrees not to reduce base wage paid
employees. The Town further agrees to give employees a 30-day
day notice before implementing any schedule changes and to
consult with the Union regarding matters of concern.
While the meaning of certain words and phrases in this provision is unclear,
the general parameters are apparent on its face. Article 7 permits the Town
to make changes in the work week, provided it meets three conditions. First, it
must give affected employees 30-day notice before implementing any change;
second, it is expressly prohibited from reducing the base wage; third, the Union
must be consulted in connection with any concerns it has related to work week
changes. We will consider each condition separately.
Tne 30-day notice requirement is straightforward. Tne Town pays lip ser-
vice to this requirement in Locke's April 17th written denial of the Union's
grievance, stating: "We provided John with notice prior to implementing this
schedule change ..." The Town subsequently admitted that it did not give
-16-
him 30-day notice, and payroll records substantiate that fact. However, because
the Union did not allege inadequate notice to the employee, did not argue
any such allegation, and did not move to conform its pleadings to the evidence
at the close of the hearing, we do not find the Town in violation of MPELRL on
the basis of this contractual condition. Rule 4.09, Me.L.R.B. Rules and Pro-
cedures.
The Union alleges that by designating 8 2/3 hours per week of Robichaud's
work week as overtime, the Town has changed his base wage, in violation of
Article 7; the Town maintains that it has not. The dispute arises because of
the method chosen by the Town to respond to DOL's findings regarding payment of
overtime under the FLSA. Had the Town reduced Robichaud's hours to 40 and con-
tinued to pay him $445, the "base wage" dispute would not be before us. Instead
the Town chose to respond in the manner least costly to it, and for that we do
not fault it. However, as tne Union has pointed out, the method it chose could
have some substantial impacts on other working conditions for Robichaud, such as
calculation of vacation pay and the accrual of sick leave.
For instance, if the designation of 8 2/3 hours per week of Robichaud's time
as overtime is construed to reduce Robichaud's "work week" to 40 hours, it could
result in a reduction in the pay Robichaud receives when he takes a week of paid
vacation. Will he receive his full salary of $445, or will he receive only his
"straight time" pay of $335.91? Wnile we have no evidence that the Town intends
to pay Robichaud the lesser amount when he takes vacation, the potential for
such a result is certainly a legitimate concern on the Union's part.
Another concern cited by the Union is the possibility that at some point in
the future, the Town will decide that it no longer wants Robichaud to work any
overtime, as it decided for all employees when in December of 1988 it reduced
everyone's hours from 56 to 53. If such a decision is made regarding Robichaud,
will he continue to receive $445 per week -- for 40 hours of work -- or will he
receive his "straight time'' pay of $335.91? Once again, we have no evidence
that the Town intends to reduce Rouichaud's hours below 48 2/3, but the Union's
concern is a legitimate one.
There is no reason that the "base wage" for purposes of FSLA and the "base
wage" for purposes of the 1987/89 agreement must necessarily be the same. If
it were clear to all concerned that Robichaud's work week is now 48 2/3
-17 -
hours and not 40, that he will be paid $445 for that work week, and that any
other working conditions affected by his weekly pay and work week, such as
vacation pay, will remain unchanged, the designation of a portion of that work
week as overtime for FLSA purposes would not violate the contract and there-
fore would be of no concern to the Board. Since we have no evidence that any
such changes have actually occurred, we do not find that the Town has violated
the prohibition in the 1987/89 agreement against a reduction in base wage.
However, to ensure that the policies of MPELRL are effectuated, we will order
relief in the alternative. If our assumption is correct that no changes have
occurred in Robichaud's benefits or other working conditions as a result of the
designation of 8 2/3 hours as overtime, the Town will simply be ordered to
ensure that no such changes occur in the future, unless they are made with the
concurrence of the Union. If our assumption is not correct, the Town will
ae ordered to make any adjustments necessary to make Robichaud whole -- that is
to return his benefits and other working conditions to what they were prior to
the DOL investigation, and to reimburse him for any losses he incurred.
Consultation between the Town and the Union could have laid the Union's con-
cerns to rest, which brings us to the third condition for a lawful change in work
week under section 2 of Article 7.
Section 2 of Article 7 requires the Town to "consult with the Union
regarding matters of concern." No time frame for consultation is specified in
the provision. Tne Union argues that the Town was required to notify the
Union of any work week changes it contemplated making, or else the right to con-
sult is meaningless. It further argues that the Town was required to negotiate
with the Union over "other changes made in connection with work week changes"
and "the impact of the work week changes."
The Town, on the other hand, apparently believes no communication with the
Union was necessary. It once again pays lip service to Article 7 in its April
17th grievance denial, by stating: "... and we have been consulting with the
Union regarding matters which the Union finds of concern in this regard." The
record, however, contains no evidence that any notification to the Union ever
took place, let alone any productive discussions.
A bargaining agent may waive its right to bargain over the mandatory sub-
jects of bargaining, but "such a waiver must be 'clear and unmistakable' and
-18-
'should be express, and ... mere inference, no matter how strong, should be in-
sufficient.'" Saco Valley Teachers Assoc. v. MSAD No. 6 Bd. of Dir., No. 85-07
and 85-09, slip op. at 10-11, 8 NPER ME-160l3 (Me.L.R.B. Mar. 14, 1985), citing
NLRB v. Perkins Machine Co., 326 F.2d 488, 489 (lst. Cir. 1964).
Nothing in either the 1987/89 agreement itself or in the record before the
Board provides us with any indication of what the parties intended by their use
of the word "consult." In this jurisdiction, the only precedent available to us
in the realm of labor law is that related to the definition of "meet and con-
sult" in the context of educational policy. See 26 M.R.S.A. 965(1)(C) (1988).
In that connection, the Board has set forth four elements necessary to carry out
the obligation to meet and consult, from which the parameters of a reasonable
definition of "consult" for our present purposes can be gleaned:
1. Notice that a change in educational policy is planned
must be given to the bargaining agent, so that it can
timely invoke the meet and consult process if employees
wish to comment on the changes;
2. Pertinent information about the planned change must be
provided so that the bargaining agent and employees can
understand the change and make constructive comments
about it.
3. Actual meeting and consulting at reasonable times and
places about the planned change must occur upon receipt
of a ten day notice of other request to meet and consult
by the bargaining agent. A school committee is obligated
to come to meet and consult sessions with an open mind, to
discuss the planned change openly and honestly, and to
listen to the employee's suggestions and concerns.
4. Mature consideration must be given to the employee's
input before the change is implemented, and if any of
the employees' comments or concerns are meritorious, the
school committee must decide in good faith whether they
can be accommodated.
Once a school committee has satisfied these elements of the duty
to meet and consult, it is free to implement or change the
educational policy matter.
Southern Aroostook Teachers Assoc. v. Southern Aroostook Community School Comm.,
Nos. 80-35 and 80-40, slip op. at 15-16, 5 NPER 20-13021 (Me.L.R.B. Apr. 14, 1982).
Thus, we agree with the Town that "consult" does not mean "negotiate." We
hasten to point out to the Town, however, that neither does it mean "ignore."
-19-
The Board finds that the Union waived its right to negotiate over "other changes
made in connection witn work week changes" or "the impact of the work-week
changes," as long as they can reasonably be included under the broad language of
Article 7, "matters of concern." However, it should have been given notice of
the intended changes and the opportunity to request consultation on matters of
concern such as those already mentioned. Of course, any changes that might have
been made that did not naturally flow from the reduction in hours to 48 2/3 and
the designation of 8 2/3 hours as overtime, would have been outside of the scope
of section 2 of Article 7, and therefore would not have fallen within the nego-
tiation waiver of that provision.
In addition to its defense of waiver, the Town has alluded to a defense of busi-
ness exigency, by suggesting that it was obliged to comply with DOL's decision
regarding payment of overtime to Robichaud. That argument does not hold up
under scrutiny.
As the Board has stated: "We envison an 'exigency' as a sudden, out-of-
the-ordinary event threatening serious harm and requiring immediate managerial
action." No. 78-23, slip op at 4. While we understand that the Town had no
choice but to respond promptly to DOL's findings, the business exigency argument
is unpersuasive when alternatives were available that would not have violated
the terms of the 1987/89 agreement. MSEA v. State of Maine, No. 79-43, slip
op. at 7, 2 NPER 20-11002 (Dec. 6, 1979). DOL's findings made it clear that
Robichaud would have to be paid overtime for any hours over 40 per week that he
worked. However, DOL did not direct tne Town to take the particular course of
action it took in order to comply With the FLSA. Rather than ignoring the
requirements of Article 7, the Town could have given Robichaud 30-day notice
that a change would be coming; for those 30 days, paid him overtime for the 13
hours per week beyond 40 that he was currently working; notified the Union of
the need for a change; and used the 30 days to consult with the Union on how
best to address the problem.
Since the Town made unilateral changes in Robichaud's work week without
consulting with the Union, we find that the Town violated 26 M.R.S.A. 964
(1)(A) and (E) (1988); an unlawful unilateral change violates not only the duty
to bargain, but tends to interfere with the free exercise of bargaining rights
guaranteed by the Law. Coulombe, slip op. at 25. Accordingly, we will order
such relief as will effectuate the policies of MPELRL. 26 M.R.S.A. 968(5)(C)
-20-
(1988) .
In the exercise of our remedial authority, we seek "a restoration of the
situation, as nearly as possible, to that which would have obtained" but for the
prohibited act committed by the Town. Sanford Highway Unit v. Town of Sanford,
No. 79-50, 1 NPER 20-10012 (Me.L.R.B. Apr. 5, 1979), aff'd, 411 A.2d 1010, 1016
(Me. 1980). Thus the Town will be ordered to cease and desist from refusing to
notify the Union of pending work week changes and to consult with the Union on
matters of concern related to such changes. In addition, Article 12, section 1
authorizes the Town to adjust the accumulation of vacation leave if it reduces
the work week for any employee. If in fact the Town has made any such adjust-
ment for Robichaud, it will be ordered to restore the rate of vacation accumula-
tion to that in effect before his hours were reduced to 48 2/3. That rate will
remain in effect until the Town meets the consultation requirements for a lawful
work week change, or until the Town and the Union change the terms of Article 7,
section 2 by mutual agreement.
Unilateral change - prior to DOL investigation
In its complaint, the Union alleges failure to pay Robichaud the one-fifth
holiday wage required by Article 11 of the 1987/89 agreement. It also alleges
unilateral changes in other benefits such as vacation and sick leave. The Town
answers that the changes took place when the code enforcement officer position
was created, and not in connection with the DOL investigation; that the changes
have become "past practice" with no need for conformity to the 1987/89
agreement; that the Union should have brought the changes up during negotiations
for the 1987/89 agreement; and that the 6-month statute of limitations of 26
M.R.S.A. 968(5)(B) bars that aspect of the complaint currently before this
Board. No evidence was placed in the record pertaining to changes that may have
taken place with respect to vacation and sick leave; consequently, those allega-
tions are dismissed. Evidence was entered regarding the change in holiday pay,
however, and we now consider that allegation.
At the prehearing conference, the Union received a copy of Brasslett's
March 1967 memo to Locke outlining the changes to be made in Robichaud's working
conditions as a result of his appointment to the code enforcement position,
including the fact that he would no longer be receiving the one-fifth holiday pay.
Testimony at the hearing substantiated the fact that the holiday pay change had
-21-
taken place in 1987, and not in 1989 as the Union believed. What is also
apparent from the record, however, is that the Union was never notified of that
change. Teamsters Local No. 48 was the bargaining agent for fire department
employees at the time the change took place, and not the Union. However, Lorin
LeCleire has been president of the local since 1981, he negotiated and signed
both the 1987/89 agreement and the agreement prior to that, and his testimony
that he was never given notice by the Town of the holiday pay change was
uncontroverted.
The Town maintains that the Union had actual knowledge of the change prior to
March of 1989, citing in particular the language of the 1987/89 agreement, the
testimony of LeCleire, and the Union's statement of the case in the May 7, 1989
arbitration award. None of these supports the Town's assertion.
First, the Town points to the fact that in the 1987/89 agreement, the word
"shift" was added to Article 11 covering holidays, a change from the language of
the previous contract which made no distinction between shift and non-shift
employees. Next, the Town points to Article 12 - Vacations - which provides
for accumulation of annual leave either as the number of shifts or as the number
of weeks off per year of service to the department. The Town then points to
LeCleire's testimony and suggests that his reference to "shift suppression per-
sonnel" (which LeCleire admits doesn't include the code enforcement position)
and the references to "shift" in the contract together indicate Union knowledge
that RObichaud was no longer being paid the one-fifth holiday pay. The argument
is not persuasive.
First, neither any record evidence nor LeC]eire's demeanor during the
hearing indicated that in fact any such understanding ever existed between the
Union and the Town. Second, Robichaud is not the only employee who works a
daytime rather than a round-the-clock shift. The "kelleyman" does also, and yet
is apparently considered a shift person for other purposes under the contract.
Third, Robichaud testified that when he was working a 53-hour work week, prior
to the DOL investigation, he would only receive overtime pay for time worked
over 53 hours, if he averaged more than 53 hours over a three-week work cycle.
Thus, at least with respect to overtime pay, he was being treated the same as
employees who worked around-the-clock shifts.
The Town's reliance on the May 7th arbitration award also hurts its cause.
We agree with the Town that the Union's position, as stated in that document,
-22-
shows substantial knowledge of the code inspector position. However, it shows
knowledge only of those aspects of the position that could be determined by
watching him as he worked, and not of those that would be revealed only upon
inspection of his payroll records. In particular, it does not show knowledge of
the change in holiday pay, which is at issue here.
In addition, it is the Town that insisted to the arbitrator that Robichaud was
still performing "fire shift work duties." It won the argument and thereby won
the right to continue to use Robichaud to fulfill its minimum manning obliga-
tions under Article 7, section 1. For it now to argue that Robichaud is not a
shift employee entitled to the one-fifth holiday pay, flies in the face of
reason, not to mention the precedent set by the arbitrator's decision, which is
binding on the parties for the term of the 1987/89 agreement.
Finally, and most important, the change in payment of holiday pay to
Robichaud was made during the term of the 1985/87 contract that contained no
reference to shift employees, and not during the the term of the 1987/89
agreement; consequently, whether or not he is now a shift employee is irrele-
vant. The Union should not be held responsible for failing to raise the issue in
negotiations for tne 1987/89 agreement, when it had no knowledge that there
was a problem.
Given the Union's lack of knowledge of tne change in Robichaud's holiday
pay, the Town's other defenses to this allegation are also without merit.
Reliance on the "past practice" exception to the rule on unilateral change begs
the question, if the change was made without the Union's knowledge and it did
not know that the practice existed. The Town's assertion that the allegation is
time-barred by section 968(5) fails, since the Union did not have knowledge of
the change until March of 1989. As we have stated on previous occasions, "[T]he
6 month limitations period begins to run when the complainant knew, or reason-
ably should have known, of the occurrence of tne event which allegedly violated
the Act." Coulombe, slip op. at 8, citinq MSAD No. 45, slip op. at 12.
The Board finds that in 1987 the Town made an unlawful unilateral change in
the payment of holiday pay to Captain Robichaud, in violation of the collective
bargaining agreement in effect at that time, and therefore in violation of 26
M.R.S.A. 964(1)(A) and (E). The Town will be ordered to cease and desist
-23-
from making unilateral changes in the wages, hours and working conditions of
Captain Robichaud. In addition, in order to restore the situation, as nearly as
possible, to that which would have obtained but for the violation, we will order
the Town to pay Robichaud the one-fifth holiday pay, plus interest, that he
would have received for each contract-designated holiday that has occurred since
the unilateral change was made. The Town will continue to pay him the one-fifth
holiday pay for holidays so designated in the 1987/89 agreement, until the par-
ties mutually agree otherwise. Interest shall be calculated in accordance with
Holmes v. Town of Old Orchard Beach, No. 82-14, 5 NPER 20-13029 (Me.L.R.B.
Sept. 27, 1982). Interest rates for tne relevant time periods were as follows:
July 1, 1986 - September 30, 1987 9 percent
October 1, 1987 - December 31, 1987 10 percent
January 1, 1988 - March 31, 1988 11 percent
April 1, 1988 - September 30, 1988 10 percent
October 1, 1988 - March 31, 1989 11 percent
April 1, 1989 - September 30, 1989 12 percent
Other
One final allegation by the Union with respect to the Town's unilateral
changes must be addressed -- the alleged violation of 26 M.R.S.A. 964(1)(C),
dominating or interfering with the formation, existence or administration of any
employee organization. As the Board has stated on numerous occasions, "this
section of the Act is directed at the evil of too much financial or other sup-
port of, encouraging the formation of, or actually participating in, the affairs
of the union and thereby potentially dominating it." Teamsters Local Union No.
48 v. City of Calais, No. 80-29, slip op. at 5, 2 NPER 20-11018 (ME.L.R.B. May
13, 1980). Since there is no evidence to support the Union's allegation, it is
dismissed.
-24-
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) (1988), it is hereby ORDERED:
1. That the Respondent, the Town of Orono, and its representatives and
agents, shall:
A. Cease and desist from failing and refusing to provide
information to the Union relevant to the performance of its
duties as a bargaining agent, upon request and in a timely
manner.
B. Cease and desist from failing and refusing to notify the
Union of pending work week changes under the 1987/89 agree-
ment, so that the Union has the opportunity to request con-
sultation on matters of concern regarding any such changes.
Consult with the Union, as specified in the 1987/89 agreement,
when requested to do so.
C. If any adjustment in Robichaud's accumulation of vacation
leave has occurred since the DOL investigation, pursuant to
Article 12, section 1 of the 1987/89 agreement, restore it to
the rate in effect before the investigation and correct his
personnel records to reflect accumulation of vacation leave
at the higher rate throughout the time period in question.
Continue to grant vacation leave at the higher rate until the
Town has complied with the consultation requirements of
Article 7, section 2, or until the terms of that provision
have been changed by mutual agreement of the parties.
D. Ensure that no changes occur in Robichaud's benefits or
other working conditions as a result of the designation of
8 2/3 hours per week of his time as overtime for FLSA purposes.
If such changes have already occurred, revoke the changes and
reimburse him for any losses that he has incurred since the
changes were made.
E. Cease and desist from making unlawful unilateral changes
in the wages, hours and working conditions of Robichaud,
including payment of holiday pay.
F. Pay Robichaud the one-fifth holiday pay, plus interest,
that he would have received for each contract-designated
holiday that has occurred since the unilateral change in
holiday pay was made in 1987.
-25-
Continue to pay Robichaud holiday pay in accordance with the
terms of the 1987/89 agreement until the parties mutually
agree otherwise.
2. That all other allegations of the Union are hereby dismissed.
Dated at Augusta, Maine, this 1st day of September, 1989.
MAINE LABOR RELATIONS BOARD
/s/____________________________
Peter T. Dawson
Alternate Chairman
/s/____________________________
Thatcher E. Turner
Employer Representative
/s/____________________________
George W. Lambertson
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)(F)
(1988) to seek review of this decision and order by the Superior Court, by filing
a complaint in accordance with Rule 80C of the Rules of Civil Procedure within
15 days of the date of this decision.
-26-