Thomas Blake and South Portland Professional Firefighters Assoc. v. City of South Portland, No. 94-12, Interim Order, Jan. 27, 1994, Decision and Order, June 2, 1994 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-12 Issued: January 27, 1994 ___________________________________ ) THOMAS BLAKE and SOUTH PORTLAND ) PROFESSIONAL FIREFIGHTERS ) ASSOCIATION, ) ) Complainants, ) ) INTERIM ORDER v. ) ) CITY OF SOUTH PORTLAND, ) ) Respondent. ) ___________________________________) On September 30, 1993, Mr. Thomas Blake and the South Portland Professional Firefighters Association ("Association") filed a prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that upon contract expiration, the City of South Portland ("City") violated section 964(1)(A) and (E) of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(A) and (E) (1988), by unilater- ally changing its overtime policy with respect to employees in the firefighters' unit represented by the Association (hereafter, "non-supervisory unit"). Upon receipt of the City's answer to the complaint, a prehearing conference and evidentiary hearing were scheduled. On December 10, 1993, the Board received a notice of intention to intervene on behalf of the South Portland Command Officers' Bargaining Unit, a separate unit of supervisory employees employed in the South Portland Fire Department. The _____________________ 1The complaint was subsequently amended to correct a deficiency in the filing. -1- notice was treated as a request to intervene, and all parties were given the opportunity to address this issue at the pre- hearing conference. At the close of the conference, and upon a review of relevant documents and oral argument, the prehearing officer recommended in her prehearing conference memorandum and order dated January 3, 1994, that the Board deny the request to intervene. The employer and employee representatives met on January 20, 1994, to consider the recommendation. JURISDICTION Thomas Blake is president of the Association and a public employee, within the meaning of 26 M.R.S.A. 962(6) (Supp. 1993). The Association is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for permanent, full-time firefighters of the South Portland Fire Department. The City is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1993), of the employees in the firefighters' unit. 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)(A)-(C) (1988). DISCUSSION The City has negotiated an overtime policy with the supervisory unit that the City acknowledges affects the availability of overtime for members of the non-supervisory unit. The supervisory unit wishes to intervene in this case in the interests of what it calls economy and efficiency: A decision by the Board that is favorable to the non-supervisory unit could adversely affect the economic interests of supervisory unit members, in which case the supervisory unit might find it necessary to file a prohibited practices complaint against the City. Section 968(5)(B) of the MPELRL and Board Rule 4.08(A) provide that the Board may, in its discretion, allow inter- vention, and the Board has done so on occasion. In Prentiss v. -2- Sandy River Education Association, No. 75-15 (Me.L.R.B. May 8, 1975), an employee had brought a complaint against the bargaining agent regarding the right of bargaining unit members who were not union members to discuss bargaining proposals with the bargaining agent and/or to vote on contract ratification. The employer was permitted to intervene for the limited purpose of submitting briefs on legal issues. In SAD #5 Federation of Teachers v. Sternberg, No. 81-43, 4 NPER 20-12022 (May 14, 1981), the complainant, which had previously been decertified as the bargaining agent, alleged that the employer was improperly refusing to permit it to use SAD #5 facilities to communicate with teachers or hold meetings. The incumbent bargaining agent, alleging that it had an "exclusive use" agreement with the employer, was permitted to intervene in the proceedings. At issue was whether an "exclusive use" agreement had been made between the employer and the intervenor, and if so, whether it was lawful. In Auburn Firefighters Association, Local 797 v. City of Auburn, No. 89-01, 11 NPER ME-20003 (Me.L.R.B. Mar. 31, 1989), another employee organization (the Maine Teachers Association) was permitted to file a brief on the policy question of whether an employer should be permitted to implement its last best offer after an impasse in negotiations has been reached. In the matter before us, there are no broad policy questions at stake. Nor are we faced with a situation where legally cognizable rights of an intervenor will be affected. Even if the intervention request were granted, the Board could not act on the supervisory unit's fear that the City may renege on the super- visory unit overtime agreement at some point in the future. Section 968(5) of the MPELRL gives the Board the authority only to address violations of the law that have occurred or are occurring. Moreover, in deciding whether the City has failed to maintain the status quo with respect to the non-supervisory unit, it is the provisions of the parties' expired contract, as well as any past practices that have been established in connection with -3- the availability of overtime to members of that unit, that together constitute the status quo. In determining whether the status quo has been maintained, as a matter of law the Board cannot be influenced by the fact that the outcome of this case may affect the economic interests of the supervisory unit (or even that it may place the City in the position of having to pay two pipers unless the supervisory unit is willing to revisit its agreement with the City). In sum, we find that intervention would serve no useful purpose in this case, but would simply complicate and confuse it unnecessarily. The request to intervene will be denied. ORDER On the basis of the foregoing facts 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 & Supp. 1993) and the Board's Rules and Procedures, it is hereby ORDERED: That the request of the South Portland Command Officers' Bargaining Unit to intervene is denied. Issued at Augusta, Maine, this 27th day of January, 1994. MAINE LABOR RELATIONS BOARD /s/__________________________ Kathy M. Hooke Alternate Chair /s/__________________________ Howard Reiche, Jr. Employer Representative /s/__________________________ George W. Lambertson Employee Representative -4- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-12 Issued: June 2, 1994 ___________________________________ ) THOMAS BLAKE and SOUTH PORTLAND ) PROFESSIONAL FIREFIGHTERS ) ASSOCIATION, ) ) Complainants, ) ) DECISION AND ORDER v. ) ) CITY OF SOUTH PORTLAND, ) ) Respondent. ) ___________________________________) On September 30, 1993, Mr. Thomas Blake and the South Portland Professional Firefighters Association ("Association") filed a prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that upon contract expiration, the City of South Portland ("City") violated section 964(1)(A) and (E) of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(A) and (E) (1988), by unilater- ally changing its overtime policy with respect to employees in the firefighters' unit represented by the Association. Insuf- ficiencies in the complaint were corrected by amendment on October 7, 1993. In its answer, the City responded that the overtime in question is command officers' unit overtime, and therefore is not a mandatory subject of bargaining for firefighters; and that the City provided the Association with a reasonable opportunity to demand negotiations over the change by notifying it of the intended change on April 21, 1993. The City also requested that the Board defer to a pending arbitration. -1- On December 10, 1993, the Board received a notice of inten- tion to intervene from the command officers' unit (the super- visory unit). The notice was treated as a request to intervene, and all parties were given the opportunity to address this issue at the prehearing conference, which was convened by Alternate Chair Kathy M. Hooke on December 20, 1993. The Prehearing Conference Memorandum and Order denied the request for deferral and recommended denial of the intervention request. The Board's subsequent Interim Order denied the request to intervene. Both are incorporated in and made a part of this decision and order. An evidentiary hearing on this matter was held on February 17, 1994. Alternate Chair Hooke chaired the hearing, accompanied by Employer Representative Howard Reiche, Jr., and Alternate Employee Representative Gwendolyn Gatcomb. John W. Chapman, Esquire, represented the Association, and Mary Kahl, Esquire, and Roger Kelley represented the City. The parties were given full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make oral argument. The parties filed posthearing briefs on March 28, 1994. The Board deliberated this matter on April 12, 1994. JURISDICTION Thomas Blake is president of the Association and a public employee, within the meaning of 26 M.R.S.A. 962(6) (Supp. 1993). The Association is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for permanent, full-time firefighters of the South Portland Fire Department. The City is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1993), of the employees in the firefighters' unit. 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)(A)-(C) (1988). -2- FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. Before 1988, command officers and firefighters employed by the South Portland Fire Department were in a single bargaining unit covered by one collective bargaining agreement. The 1986-88 agreement contained seven overtime rosters: a regular overtime and an emergency overtime roster for command officers; a regular overtime and an emergency overtime roster for firefighters; a regular overtime and an emergency overtime roster for dis- patchers; and an outside overtime roster. The agreement stated: "Any member called to fill a manning vacancy shall be called in proper rotation from a Regular Overtime posted roster that reflects the vacancy." 2. After the single unit was split into two, separate agreements were negotiated for each. Since the split, each of the three agreements covering command officers has contained three overtime rosters1: one for regular overtime, one for emergency overtime and one for outside overtime. Each agreement states: "Any employee called to fill a vacancy created by the absence of another employee shall be called in proper rotation from the regular overtime posted roster." Each of the three agreements for the firefighters2 has contained five overtime rosters: a regular and an emergency roster for firefighters; a regular and an emergency roster for dispatchers; and an outside _________________________ 1The first command unit agreement covered the period July 1, 1988 through June 30, 1990; the second covered the period July 1, 1990 through June 30, 1992, and, with the exception of three articles not relevant here, was extended by agreement of the parties through June 30, 1993; the current agreement covers the period July 1, 1993, through June 30, 1994. 2The 1988-90 agreement; the 1990-92 agreement, which was subsequently extended through June 30, 1993; and the current agreement, which was signed on January 12, 1994, and retroactively covers the period July 1, 1993 through June 30, 1994. -3- overtime roster. The current agreement contains an additional roster, for football game/band competition overtime. Each agreement states: "Any employee called to fill a manning vacancy shall be called in proper rotation from a Regular Overtime posted roster that reflects the vacancy." 3. The South Portland Fire Department has two fire stations, one called Central Station and the other called Cash Corner Station. The City has established the following normal manning levels at its stations: one officer, one dispatcher and five firefighters (a total of seven) for Central Station, and one officer and five firefighters (a total of six) for Cash Corner Station (Chart 1). Minimum manning is six for Central Station and five for Cash Corner Station (Chart 2). In other words, when a single vacancy occurs at either station, the vacancy is not filled. (If the single vacancy is an officer vacancy, the most senior firefighter becomes the "officer in charge" and is paid accordingly.) If a second vacancy at the same station occurs, a firefighter is "swung" from the other station so that each station has a single vacancy and no overtime hiring is necessary (Chart 3). 4. When three vacancies occur, one vacancy must be filled in order to maintain minimum manning at each station. If there is an officer and a firefighter vacancy at one station, the officer vacancy is filled (Chart 4). If all three vacancies occur at one station, a firefighter is swung from the other station to avoid having to fill two vacancies (Chart 5). 5. Periodically it will happen that two of the three vacancies occur at one station and are both firefighter vacancies, while the third vacancy, at the other station, is an officer vacancy. For nearly 20 years prior to July 1, 1993, it was the City's practice, in those circumstances, to hire a firefighter in order to meet minimum manning levels at the station with two firefighter vacancies (Chart 6). Under the new -4- practice begun on July 1, 1993, the City swings a firefighter from the station with the officer vacancy, causing a second vacancy at that station; it then fills the officer vacancy (Chart 7), rather than the firefighter vacancy that created the need to hire. The new overtime policy is more costly for the City than its old policy. -5- Chart 1 Chart 2 normal manning minimum manning (neither vacancy filled) CENTRAL CASH CORNER CENTRAL CASH CORNER O O O O D F D F F F F F F F F F F F F out F out F F F F F F _________________________________________________________________ Chart 3 minimum-manning "swing" CENTRAL CASH CORNER CENTRAL CASH CORNER O O O out O D F D F F F F (off. in chg) F F out F F F F F F F F out F F out F F F _________________________________________________________________ Chart 4 Chart 5 order of filling vacancies swing to avoid hiring CENTRAL CASH CORNER CENTRAL CASH CORNER fill O out O fill O out O D F D F F F out F F F out F F out F F F F F F F F out F F F _________________________________________________________________ Chart 6 (OLD) Chart 7 (NEW) CENTRAL CASH CORNER CENTRAL CASH CORNER O O out O fill O out D (off. in chg) F D F F F F F F F F F F out F F out F fill F out F F out F F F -6- 6. By letter dated February 21, 1993, the Association requested that negotiations for a successor to the 1990-93 firefighters' agreement begin. By letter dated March 16, 1993, Assistant City Manager Jeffrey Jordan acknowledged the request and indicated his readiness to begin negotiations. At their first meeting on April 21, 1993, the parties signed ground rules for negotiations. Among other things, the parties agreed in the ground rules that if successor negotiations continued beyond the contract expi- ration date, the parties would continue to abide by the provisions of the contract. 7. At that same meeting on April 21st, the City notified the Association that the command officers' unit had proposed changing how overtime was assigned to provide that officers would always have overtime priority, even if that required "swinging" a firefighter from one station to another. (Command unit members believed that they had been entitled to the overtime in question since the two bargaining units split in 1988; for various reasons, they did not formally pursue the issue at the bargaining table until negotiations began for the 1993-94 command unit contract.) The Association did not agree to any change in the City's overtime policy. It did not make any counterproposals at this meeting. 8. The parties next met for negotiations on June 8, 1993, by which time the City had already tentatively agreed to the overtime proposal made by the command officers' unit. The Association informed the City that since firefighters would lose overtime money and "officer-in-charge" money if the overtime change occurred, the 3 percent raise that the City had offered as part of the settlement package for firefighters was not acceptable. The Association then offered three alternate economic proposals in connection with the overtime issue; no agreement was reached. The City stated its intention to proceed with the change, and the Association stated its position that the -7- change could not be made without negotiating it. 9. The City issued its Change to Hiring Policy, effective July 1, 1993, item 2 of which states: Hiring Changes If there is a need to hire and when an officer is out at either station. A. Attempt to hire an officer and swing a firefighter when a station has five firefighters on duty to balance the crews. B. If no officer takes the job voluntarily, attempt to hire a firefighter or dispatcher depending on the vacancy. C. If no firefighter and/or dispatcher takes the job voluntarily, then force an officer. 10. The Association submitted its grievance over the change in overtime policy to the fire chief on July 11, 1993. The grievance was denied on July 22nd, and was submitted to the assistant city manager on July 23, 1993. At a negotiation session between the City and the Association on that same day, the Association stated that it did not believe that the parties' package bargaining effort should continue in light of the overtime agreement between the City and the command officers' unit. The Association then made individual bargaining proposals on fifteen articles of the parties' expired contract, including various wage provisions. 11. A step III grievance hearing was held on August 1, 1993, and the assistant city manager denied the grievance by letter dated August 6, 1993. 12. At the next negotiation session on August 10, 1993, the City presented its opening proposals on individual articles; negotiations ensued, and the parties reached tentative agreement -8- on several issues. 13. By letter dated August 23, 1993, the Association filed a request with the Board of Arbitration and Conciliation for arbitration of its overtime grievance. 14. Additional negotiations for a successor contract took place on August 25, October 8, October 14, November 4, and November 9, 1993. At the meeting of October 14th, the City made a "package offer" to conclude negotiations. After considerable discussion that included counterproposals and settlement of some issues, the package on the table was denominated as the Union's counterproposal; the assistant city manager agreed to take it to the City Council for review. (Corrections in the contents of the package were made at the meeting on November 4th.) 15. At the meeting of November 9th, the City raised the issue of settlement of the outstanding prohibited practice case and grievance related to the parties' overtime dispute, along with vacation scheduling. The Association made a proposal that included increased longevity incentives, to offset overtime pay already lost, among other things. The City also made a settle- ment proposal. The parties were unable to reach agreement on a settlement of the prohibited practice complaint and grievance, but did agree to continue, at that meeting, their attempts to reach a new contract. A tentative agreement was reached, and the new agreement was signed on January 12, 1994, retroactively effective July 1, 1993, through June 30, 1994. 16. In a draft final agreement prepared on or about December 21, 1993, by the City and provided to the Association for signature, the words "that reflects the vacancy" were inadvertently omitted from Article 16. The Association protested the omission, and the words appear in the contract signed on January 12, 1994. -9- DISCUSSION At issue in this case is whether the City made an unlawful unilateral change in a mandatory subject of bargaining for the firefighters' unit. A unilateral change in terms and conditions of employment constitutes "a circumvention of the duty to negotiate which frustrates the objectives of [the duty] much as does a flat refusal." NLRB v. Katz, 369 U.S. 736, 743 (1962). Thus, such a change is a per se violation of the duty to bargain. Id. Unilateral changes also inherently tend to interfere with the free exercise of rights guaranteed by the MPELRL, in viola- tion of 26 M.R.S.A. 964(1)(A). Lane v. Board of Directors of MSAD No. 8, 447 A.2d 806, 810 (Me. 1982). The facts surrounding the dispute in this case are straight- forward and undisputed. Minimum manning at each of the City's two fire stations is normal manning minus one (Chart 2). In other words, when a single vacancy occurs at either station, the vacancy is not filled. Where two vacancies occur at one station, a firefighter is swung from the other station, so that each station has a single vacancy and no overtime hiring is necessary (Chart 3). These practices have not changed, and are not being challenged. When three vacancies occur, one vacancy must be filled to maintain minimum manning at each station. Prior to July 1, 1993, the established policy was to fill a vacancy at the station that had created the need to hire -- i.e., at the station that did not have minimum manning (Charts 4 and 6). If an officer was out at that station, it was the officer vacancy that was filled (Chart 4). If the officer vacancy occurred at the other station, it was not filled because that station had minimum manning (Chart 6). In response to a bargaining demand from the command officers' unit of the fire department, the City negotiated a new overtime policy with that unit that it acknowledges affects the -10- availability of overtime for firefighters (overtime for dispatchers in the non-supervisory unit is not at issue here). Under the new policy a firefighter is swung whenever necessary to ensure that the officer vacancy will be one of two vacancies at a single station, and therefore that the officer vacancy will be the one to be filled (Chart 7). The result of changing which station is undermanned is to give command officers more oppor- tunities for overtime and firefighters less. In its answer to the complaint, the City asserted two defenses to its change in the overtime policy as it affected firefighters: that the overtime in question is command officers' unit overtime, and therefore is not a mandatory subject of bargaining for firefighters; and that an action is unilateral only if it is taken without prior notice to the bargaining agent sufficient to afford it a reasonable opportunity to bargain over the change. In its posthearing brief, the City added three arguments: 1) that the City had the "right and obligation" to change its overtime practice to conform with clear and unam- biguous command officer's unit contract language; 2) that it was required to change its overtime practice to avoid illegal subcontracting; and 3) that the firefighters waived their right to complain about the change by executing a successor contract. We find absolutely no merit in any of the City's defenses. Three of its defenses -- that the overtime in question is not a mandatory subject for firefighters, that the old overtime practice violates the command officers' unit contract, and that the change in practice was necessary to avoid illegal subcon- tracting of command unit work -- are based on the assumption that the overtime in question here is command officers' unit overtime. That assumption begs the question. By virtue of the City's manning policy, the overtime in question here is not inherently either command unit or firefighter unit work. Under the manning policy, normal manning is 13 and minimum manning is -11- 11. In other words, the City does not hire from any overtime roster until three vacancies occur. Thus, the question is not, as the City would have us believe, whether an officer or a fire- fighter will fill an officer vacancy, but whether an officer vacancy or a firefighter vacancy will be filled when both exist.3 Under an established practice of over twenty years, which vacancy would be filled was determined by which station was undermanned (the officer vacancy was filled only if that vacancy existed at the undermanned station). Since it is the City's unilateral change (manipulation of station undermanning) that caused the overtime to become command unit overtime, the City cannot now use the result of the change to justify the change itself.4 The City's assertions of waiver are no more convincing. The City states in its posthearing brief: "The Firefighters originally disputed the change in negotiations, then withdrew the dispute, declined to demand negotiations on the contemplated change, and ratified the successor 1993-94 Collective Bargaining Agreement." _________________________ 3The City's statement that in order for a firefighter to perform the overtime in question, the firefighter must first be elevated to "officer in charge," also begs the question. It assumes that the officer vacancy and not a firefighter vacancy should be filled. Yet that is only true under the City's new policy of changing which station is undermanned. 4The City and the Association disagree on the relevance of contract language in this case. The Association relies on the phrase "that reflects the vacancy" for the proposition that the City's unilateral change also violates Article 16 of the 1990-93 contract. The City, on the other hand, asserts that that phrase is irrelevant. We need not resolve this dispute. Established practice must be maintained pending negotiations for a new contract, whether that practice is reflected in the firefighter contract or not. Lincoln Fire Fighters' Association v. Town of Lincoln, No. 93-18 (Me.L.R.B. Apr. 21, 1993). -12- The City does not specify when the Association "withdrew the dispute." In any case, the record reflects that it did not. Since it was on April 21, 1993, at the first negotiation session between the City and the Association, that City informed the Association of the command unit's bargaining demand regarding overtime, we assume that the City's statement that the Associa- tion "originally disputed the change" refers to this meeting. In any case, we do not believe that the Association's failure to make on-the-spot counterproposals constitutes a clear and unmistakable waiver of the right to bargain. Objecting to the change was sufficient. The next negotiation session occurred on June 8, 1993. By that time, the City already had a tentative agreement with the command officers' unit to make the overtime change. In these circumstances, the Association could hardly be expected to have done more than it did, which was to put various economic pro- posals on the table that it made clear were meant to compensate firefighters for loss of overtime if it agreed to the contem- plated change. In fact, offering to accept other economic compensation would constitute a counterproposal even in the absence of a "done deal" with the command officers' unit. We find that no waiver of the right to bargain occurred at the June 8th meeting, if one is alleged. After the change was implemented on July 1, 1993, the Association filed a grievance on the change, and eventually a prohibited practice complaint. We know of no authority for the City's novel proposition that the Association was required to continue demanding negotiations regarding a change that had already occurred. The Association had no obligation, as the City suggests, to make additional counterproposals rather than filing its grievance and prohibited practice complaint to contest the change itself. Rather, the Association's grievance, and eventually its prohibited practice complaint, constituted clear -13- notice by the Association that it was not acquiescing to the change. To support its final assertion -- that the Association waived its right to complain about the change by executing a new contract after the complaint was filed -- the City points to the fact that the new contract contains no clause reserving the Association's right to continue to pursue this matter with the Board. It is true that the new contract, which was signed on January 12, 1994, is retroactive to July 1, 1993. However, the City's own meeting notes, as well as its testimony at hearing, reflect that at the parties' negotiation session of November 9th, 1993, the City raised the issue of settlement of the prohibited practice complaint and related grievance. Those notes and testimony also reflect that both sides made settlement proposals, but that no settlement agreement was reached. Moreover, the overtime provision in the new contract is in all relevant respects identical to the overtime provision in the expired contract; thus, the new contract itself contains no evidence that the issue was resolved in favor of the City at the bargaining table.5 In these circumstances, the City's suggestion that the Association had an affirmative duty to demand a "reservation" clause in the new contract is simply without foundation. The City's unilateral change in overtime policy with respect to employees in the firefighters' unit violates section 964(1)(A) and (E) of the MPELRL, 26 M.R.S.A. 964(1)(A) and (E) (1988). Accordingly, we will order the City to cease and desist from making unilateral changes in the mandatory subject of overtime and from continuing to apply its new overtime policy to the _________________________ 5In fact, when the City inadvertently omitted language from the final draft of the new contract that the Association believed required the City to continue its old overtime practice, the Association objected and the language was put back in. -14- firefighters, and to post the appropriate notice.6 In addition, in order to effectuate the policies of the MPELRL, we will order the City to reimburse firefighters for overtime and officer-in- charge pay lost as a result of the change, from July 1, 1993, to the present, plus interest.7 We are dismayed by the City's unwillingness to settle this prohibited practice case prior to hearing, given what we perceive to be a clear unilateral change and the failure of the City to offer any meaningful defense to its actions.8 In these circum- stances, we will order the City to reimburse the Association for the Board costs that it incurred in prosecuting its complaint. 26 M.R.S.A. 968(1) (Supp. 1993). The City will not be required to pay attorney's fees. However, we wish to put the City on notice that the result may well be different if we are faced with a similar complaint filed by the command unit. The City is in the unenviable position of having unilaterally changed an established practice for one unit in order to satisfy a request from another unit made at the bargaining table, and now has two _________________________ 6We will grant the Association's request, in its complaint, that the notice be posted in City Hall as will as the fire stations. 7Interest is to be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977), utilizing the interest rates speci- fied in New Horizons for the Retarded Inc., 283 NLRB 1173 (1987). Thus, interest is to accrue commencing with the last day of each calendar quarter of the time period subject to reimbursement, on the total amount then due and owing at the short-term Federal rate then in effect, and continuing at such rate, as modified from time to time, until the City has complied with this order. From July 1, 1993, to the present, the short-term Federal rate has been 7 percent. 8In its prehearing submission, the City stated that it was open to any settlement that was fair to "all of the parties," one of those parties being the command officers' unit. In addition, according to that same submission the City offered to reinstate the old overtime policy, but did not offer any reimbursement for overtime lost. -15- pipers to pay. It must either do just that, or otherwise resolve the matter through bargaining. The Board has no authority to extricate the City from its predicament, and would look with great disfavor on any attempt by the City to avoid its responsi- bilities. ORDER On the basis of the foregoing facts 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 & Supp. 1993) and the Board's Rules and Procedures, it is hereby ORDERED: 1. That the City of South Portland and its representatives and agents shall: a. Cease and desist from refusing to bargain and from interfering, restraining and coercing members of the firefighters' unit by making unilateral changes in overtime policy as it affects that unit. b. Cease and desist from continuing to apply the new overtime policy instituted on July 1, 1993, to members of the firefighters' unit. c. Take the following affirmative actions that are necessary to effectuate the policies of the MPELRL: i. Reimburse members of the firefighters' unit for all overtime and officer-in-charge pay lost as a result of the unilateral change, plus interest. Payment shall be made within 20 calendar days of the date of issuance of this decision and order. If the parties are unable to agree on the number of hours for which compensation is due, they may request Board assistance within 15 days of the date of issuance of this decision and order. ii. Continue to fill vacancies in accordance with the policy in effect prior to July 1, 1993, until such time as the City and the Association agree otherwise or exhaust statutory dispute resolution procedures. -16- iii. Reimburse the Association for Board costs incurred in prosecuting its complaint, in the amount of $265.25. Payment shall be made within 20 calendar days of the date of issuance of this decision and order. iv. Sign, date and post, within 10 calendar days of the date of issuance of this decision and order, at City Hall and all locations where notices to firefighters are customarily posted, copies of the attached "Notice." The Notice shall remain posted for two weeks. V. Notify the executive director, in writing, within 25 calendar days of the issuance of this decision and order, of the steps that have been taken to comply with this order. 2. That the Association's request for attorney's fees is denied. Issued at Augusta, Maine, this 2nd day of June, 1994. MAINE LABOR RELATIONS BOARD /s/__________________________ Kathy M. Hooke Alternate Chair /s/__________________________ Howard Reiche, Jr. Employer Representative The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1993), to seek review of this decision and order by the Superior Court. To initiate such a review an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. Alternate Employee Representative Gwendolyn Gatcomb filed a separate opinion, dissenting in part. -17- OPINION I agree with my colleagues that a unilateral change in a mandatory subject unmistakably occurred in this case, and that the City presented no meaningful defense to its actions. In these circumstances, I would require the City to reimburse the Association for Board costs and attorney's fees. The Associa- tion's time and money were wasted on a matter that should never have gone to hearing. Issued at Augusta, Maine, this 2nd day of June, 1994. /s/__________________________ Gwendolyn Gatcomb Alternate Employee Representative -18- NOTICE TO EMPLOYEES POSTED PURSUANT TO AN ORDER OF THE MAINE LABOR RELATIONS BOARD AS A RESULT OF THE FILING OF A PROHIBITED PRACTICES CASE AGAINST THE CITY OF SOUTH PORTLAND, IT HAS BEEN DETERMINED THAT THE CITY HAS VIOLATED THE LAW. IN ACCORDANCE WITH OUR INTENTION TO COMPLY WITH THE BOARD'S ORDER, YOU ARE NOTIFIED OF THE FOLLOWING: We will cease and desist from refusing to bargain and from interfering, restraining and coercing members of the firefighters' unit by making unilateral changes in overtime policy as it affects that unit. We will cease and desist from continuing to apply the new overtime policy instituted on July 1, 1993, to members of the firefighters' unit. We will reimburse members of the firefighters' unit for all overtime and officer-in- charge pay lost as a result of the change in policy, plus interest. We will continue to fill vacancies in accordance with the overtime policy in effect prior to July 1, 1993, until such time as the City and the Association agree otherwise or exhaust statutory dispute resolution procedures. We will reimburse the South Portland Professional Firefighters Association for Board costs incurred in prosecuting its complaint. We will post this notice for two weeks. We will notify the Board of the date of posting and of compliance with its order. City of South Portland Dated: ____________________________ Jerre R. Bryant City Manager Any questions concerning this notice or compliance with its provisions may be directed to: MAINE LABOR RELATIONS BOARD STATE HOUSE STATION 90 AUGUSTA, MAINE 04333 (207) 287-2015