STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 05-04
Issued: January 31, 2006
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
) DECISION
v. ) AND
) ORDER
MAINE MARITIME ACADEMY, )
)
Respondent. )
____________________________________)
This prohibited practice complaint alleges that the Maine
Maritime Academy ("Employer" or "MMA") bypassed the Maine State
Employees Association ("MSEA" or "Union") and negotiated directly
with an applicant over terms and conditions of employment.
Specifically, the complaint alleges that the Employer failed to
bargain in good faith with the Union in violation of 26 M.R.S.A.
1027(1)(E) by dealing directly with an applicant for the
position as director of athletics over salary and a housing
benefit. The complaint further alleges that the Employer's
action interfered with, restrained or coerced employees in the
exercise of their rights protected by 26 M.R.S.A. 1023 in
violation of 1027(1)(A).
The complaint was filed on August 18, 2004, and the response
was filed on September 3, 2004. Peter T. Dawson, Esq., served as
the prehearing officer at the prehearing conference held on
October 10, 2004. The evidentiary hearing had to be postponed
on two occasions and was not held until August 31, 2005.
Timothy L. Belcher, Esq., represented Complainant MSEA[fn]1 and
Thomas C. Johnston, Esq., and M. Katherine Lynch, Esq., repre-
sented Respondent Maine Maritime Academy. At the evidentiary
____________________
1 Roberta L. de Araujo, Esq., later assumed this responsibility.
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hearing, Chair Jared S. des Rosiers presided, with Employer
Representative Karl Dornish, Jr., and Employee Representative
Robert L. Piccone serving as the other two Board members.
The parties were able to examine and cross-examine witnesses and
to offer documentary evidence. Briefs and responsive briefs were
all filed by December 5, 2005. The Board deliberated on
December 15, 2005.
JURISDICTION
The Board's jurisdiction to hear this case and issue a
decision lies in 26 M.R.S.A. 1029. Respondent Maine Maritime
Academy is an employer subject to the University of Maine System
Labor Relations Act pursuant to 26 M.R.S.A. 1022(1-A) and 1029.
The Maine State Employees Association is a bargaining agent
within the meaning of 26 M.R.S.A. 1029(2).
FINDINGS OF FACT
1. Maine Maritime Academy, an institution of higher education,
is located in the coastal community of Castine, Maine. Most
of the employees at Maine Maritime Academy are represented
by the Maine State Employees Association in one of three
bargaining units. At the time of the events at issue in
this case, these three bargaining units were the
administrative staff bargaining unit, the faculty bargaining
unit and the classified bargaining unit.
2. For many years, physical education was an academic program
chaired by William Mottola, a full professor. Mr. Mottola
also performed the duties of an athletic director, and
received a stipend to compensate for the year-round
responsibilities. Other faculty members in the Physical
Education Department had both coaching and teaching
responsibilities. As these faculty members retired,
however, they were replaced with coaches who had no teaching
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responsibilities. By 2002, there was only one other
professor left in the Physical Education Department, other
than Professor Mottola.
3. In 2002, the Physical Education Department was merged into
the Department of Arts and Sciences and a separate non-
academic Athletic Department was created. Dean John Barlow,
the provost and vice president of academic affairs, is
responsible for the Athletic Department as well as all
academic programs.
4. Sometime in the first part of 2002, Mr. Mottola announced
his intent to retire. With input from Mr. Mottola, Dean
Barlow created a job description of director of athletics.
The Human Resources Department made the position a pay grade
26, based on the modified Hay System analysis that the
Academy had used for many years. The job was posted
internally in the spring of 2002 as an "anticipated
opening." Before any interviews were scheduled, Mr. Mottola
changed his mind about retiring and nothing further was done
about the job at that time.
5. Professor Mottola continued as the athletic director and a
full-time faculty member throughout the 2002-2003 academic
year. In the fall of 2003, Mr. Mottola took an unexpected
leave of absence for medical reasons and Maine Maritime
Academy's football coach, Chris Murphy, was appointed as
acting athletic director.
6. Near the end of the 2003-2004 academic year, Mr. Mottola
notified the Academy that he would not be able to return to
work and would be retiring.
7. The Academy posted the director of athletics position
internally and advertised it on the basis of the job
description that had been created in April of 2002. Both
notices indicated the job was pay range 26 with an annual
salary of $48,452.89. The position was posted internally
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from April 30, 2004, through May 13, 2004.
8. The job description for the director of athletics position
created in 2002 states:
STATEMENT OF THE JOB
Employee reports directly to the Dean of Academic
Affairs. Supervises subordinate classified,
coaching and student personnel assigned to the
department of Athletics.
DUTIES OF THE JOB
1. Responsible for the development and operation
of the varsity and intramural athletic
programs in the context of the mission of the
Academy.
2. Responsible for recruitment, selection and
supervision of personnel assigned to the
athletic department.
3. Manages budget administration related to the
athletic programs.
4. Works with the Public Relations department
for promoting athletic department activities
to the college and the general public.
5. Responsible for compliance with NCAA and
Conference(s) rules, regulations and
procedures.
6. In coordination with the Development Office,
responsible for the initiation of successful
fund raising activities to supplement the
department budget and individual sports.
7. Responsible for overseeing the maintenance
and operation of the athletic facilities.
8. Responsible for assisting and supporting the
Arts and Science Department in offering of
credit and non-credit physical education
courses.
9. Performs other related duties as assigned.
10. May be assigned teaching or coaching
responsibilities by a supervisor.
This job description reflects the general duties
of the job but is not a detailed description of
all duties, which may be inherent to the position.
The Academy may assign reasonably related addit-
ional duties to individual employees consistent
with policy and collective bargaining agreements.
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9. Following MMA's customary practice, the president and the
dean appointed a selection committee to screen applicants
and conduct interviews. In this case, the committee members
were the director of admissions, a faculty member, an
alumnus, another faculty member who was new to the Academy
who served as chair, and (as a non-voting member) the acting
athletic director. The mandate of the selection committee
was not to make the actual selection, but to make a
recommendation on the top candidates so that the hiring
authority, in this case Dean Barlow, could make the final
decision.
10. Dean Barlow testified that given President Leonard Tyler's
experience and interest in athletics, he would not make a
final decision on hiring an athletic director without
consulting the president.
11. The Academy received 10 applications for the position and
interviewed six people, four of whom were internal
candidates. The selection committee conducted interviews of
the six candidates in early June. Prior to the interviews,
the Human Resources Department reviewed and approved the
specific questions the selection committee would ask the
candidates. The committee did not ask any questions that
had not been authorized.
12. Mr. James Dyer was one of the candidates interviewed. For
the previous eleven years he had been the assistant director
of athletics for operations at the University of Maine in
Orono. He had a substantial amount of coaching experience
prior to that. The subject of Mr. Dyer's current or
expected salary did not come up, nor was there any
discussion about housing at this time. After the interview,
Mr. Murphy, the acting athletic director, showed Mr. Dyer
around the campus. During this tour, Mr. Murphy shared with
Mr. Dyer his concerns about the insufficient funding of the
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Athletic Department.
13. On June 9, 2004, the selection committee sent a memo to
President Tyler, Dean Barlow, and Mr. Gene Moyers (the human
resources director at the time) with its unanimous
recommendation that Mr. Dyer be hired. The memo went on to
say:
2. During the course of interviewing candidates,
the committee noted the following concerns shared
by many members of the athletic department which
we would like to bring to your attention:
a. The job description posted for the
position of athletic director does not
adequately describe the duties required of
the job. Specifically, it does not delineate
that the Athletic Director will be required
to coach and teach, but simply says that
those duties "may be assigned."
b. The salary listed does not appear to be
adequate, as it will place the new Athletic
Director 3rd among all Athletic Department
personnel, when the position would, by definition,
command that he or she be paid the highest salary
within the department.
c. To amplify "a" and "b" above, it would
appear to the committee that additional
compensation is warranted for the position,
since it will definitely require the Athletic
Director to coach and teach, as well as
manage the Athletic Department. If the
administration expects the Athletic Director
to coach, then additional financial
compensation should be offered.
3. While Maine Maritime Academy's Athletic
Department is undergoing a period of transition,
it is by no means "broken." The committee inter-
viewed a majority of the athletic department
staff, all of whom voiced their earnest desire to
support the new Athletic Director and do whatever
it takes to make Maine Maritime athletics
successful. Nonetheless, it is apparent to the
committee that the Athletic Department is in need
of additional financial resources. The committee
recommends that the school administration do
whatever it can to preserve, if not enhance,
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funding for the Athletic Department.
14. It was very unusual for a selection committee to offer
opinions on management or funding issues. The practice had
always been for the committee simply to make a recommen-
dation for hire and identify its second choice.
15. On June 10, 2004, President Tyler sent an e-mail to Dean
Barlow stating:
Gene [Moyers] will be talking to you about meeting
with the candidate for the AD's job. The issues
that should be discussed include salary (our
initial offer to him will be considerably less
than he currently makes), you should also talk
about a coaching responsibility for him (his
background is in soccer, but he might be able to
assist in that or another sport, or take on the
head coaching responsibility of lacrosse, or golf,
or possibly women's soccer, which then might free
up Craig to help out in some other area, possibly
fund raising). Keep me informed by e-mail.
Thanks, Len
16. A short time later, Mr. Moyers sent an e-mail to Dean Barlow
setting up a meeting with Mr. Dyer for the following
Thursday. He indicated that Dean Barlow should discuss the
athletic program with him and that he would review the
salary and benefits information with him.
17. Mr. Dyer's first contact with the Academy following his
initial interview was a telephone message from the chair of
the selection committee saying that he was the top choice of
the committee and that he would be contacted by the Human
Resources Department to set up another interview. Later, he
received a call from Ms. Grindle in the Human Resources
Department and they set up a meeting for June 17, 2004.
18. On Thursday, June 17, 2004, Mr. Dyer returned to the campus
for a meeting with Richard Ericson, MMA's vice president for
administration and finance, Dean Barlow and Mr. Moyers.
It was at this meeting that Mr. Dyer first learned that the
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Academy never hired anyone at a rate above the initial step
of the pay grade, regardless of the years of experience the
candidate possessed. Mr. Dyer was quite surprised by this
information, and informed the others that the pay was
considerably less than his current salary at the University
of Maine. He did not provide any other details concerning
his salary nor did they ask about it. At some point after
Mr. Dyer indicated that the starting salary of pay range 26
was "considerably less" than his current salary, one of the
three Academy managers at the interview indicated that they
were going to be reviewing the job to see if a change in pay
grade was warranted. Although no one who testified could
remember what was said specifically, there is no doubt that
the managers indicated to Mr. Dyer that his concerns would
be taken into account.
19. At this same meeting, Mr. Dyer raised some concerns he had
regarding the athletic program at the Academy, including a
need to improve the amount of athletic training provided, to
increase the administrative support for women's athletics,
and to improve funding through greater development efforts.
He indicated that he felt it was important for the athletic
director to be present at athletic events both to provide
oversight for the department and to show support for the
coaches and teams. He asked if there were any place he
could stay in times of inclement weather or on particularly
late nights, as the commute to his home in Bangor was long.
It is not clear if any of the Academy managers responded
specifically to the concern about housing.
20. Housing is an important issue at Maine Maritime Academy, as
the price of housing in and around the coastal community of
Castine is quite high. The Academy has a number of rental
housing units that are available to certain Academy
employees. The Academy adopted a "Rental Housing Policy"
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effective July 1, 2000. The policy requires the future
incumbents of certain specified positions to live within 25
miles of Castine due to the nature of the responsibilities
of those particular jobs. The positions listed include, for
example, the commandant of midshipmen, the director of
public works, the training vessel master, and the director
of safety and security, but does not include the director of
athletics. The listed positions are given top priority for
use of MMA-owned rental housing. If not all of the units
are taken by the listed positions, the units are available
to other new Academy employees for a maximum of two years.
The Academy sets the rental rate at the low end of the
market rate and requires each employee-tenant to sign a
lease. The rental amount is deducted from the employee's
paycheck.
21. Not long after the policy was issued, the Union filed a
prohibited practice complaint in which it alleged that the
Academy hired an individual for the commandant of midshipmen
position and provided him free housing. At the time, that
position was in a bargaining unit. The complaint was
withdrawn and the parties were able to negotiate a
resolution. In 2003 this Board issued a decision that the
commandant was essentially a vice president and therefore
excluded from the bargaining unit.
22. An additional type of accommodation available at the Academy
is rooms on the third floor of Leavitt Hall. These rooms
are used for various purposes, such as for trustees on
campus to attend meetings, visiting prospective students,
and sometimes for housekeeping or food service workers when
a major storm is forecast. Arrangements for the use of
these rooms are made during the day at one of the
administrative offices.
23. Immediately after meeting with Mr. Dyer, the three Academy
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managers (Moyers, Barlow, and Ericson) pulled out the 2002
director of athletics job description and reviewed it. They
altered the job description by changing the statement "May
be assigned teaching or coaching responsibilities by a
supervisor" to "Performs teaching and coaching responsibil-
ities as assigned by a supervisor." The intent was to make
it clear that coaching was an expectation of the job, not
merely a possibility. Other than switching the order of the
final two items,[fn]2 they made no other revisions to the job
description.
24. The Academy uses what they refer to as a modified Hay System
for analyzing various factors for any given job in order to
determine the appropriate pay scale. This system has been
used for many years by the Human Resources Department for
positions in both the administrative staff unit and the
classified bargaining unit. The specific factors and their
relative weight are: knowledge and skills (36%); mental and
visual effort (8%); physical effort (8%); responsibility for
cost control (8%); responsibility for others: injury (8%),
supervision (8%), and sensitive information/records (8%);
working conditions (8%); responsibility for external and
internal relations (8%). A matrix is used to determine the
number of points for each factor based on the degree that
factor comes into play for the job being evaluated. The
points are totaled and a higher total corresponds to a
higher pay grade.
25. The three managers considered the change in the job descrip-
tion making coaching a requirement or expectation of the job
rather than just a possibility to be a significant change.
____________________
2 There was also a change in the wording of the fund-raising
duty, adding the word "oversight" to the responsibility. There was no
testimony offered regarding this change.
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Mr. Ericson testified that it "would change perhaps the
background and previous experience of any person selected
for the position." Consequently, they increased the
"knowledge and skill" factor from the seventh degree to the
eighth degree. This resulted in an additional 36 points.
In addition, they increased the "responsibility for cost
control" factor from a fourth degree to a fifth degree.
They did this after looking at other positions in the
Athletic Department and at the Academy as a whole. They
concluded that because the athletic director had
responsibility for a budget of close to a million dollars,
this factor was underrated. The change in the cost control
factor resulted in an additional 10 points. As a result of
this reevaluation, the total number of points for the
director of athletics position increased from 554 to 598,
which moved it from range 26 to range 29.
26. The meeting of Mr. Moyers, Dean Barlow and Mr. Ericson to
review the job descriptions and the Hay System factors did
not last very long, perhaps an hour or an hour and a half.
Dean Barlow and Mr. Ericson left the meeting knowing that
the total points for the job had increased and understanding
that it would result in a higher pay grade for the position,
although they did not know which pay grade.
27. Immediately following the meeting, Mr. Moyers determined
that the revised director of athletics job belonged in pay
grade 29 based on the increased points. This decision was a
straightforward application of a chart translating points
directly to pay grade. Mr. Moyers initiated the paperwork
necessary to finalize an offer of employment to Mr. Dyer.
The "Human Resource Action Notice" was signed by Mr. Moyers,
Mr. Ericson and Dean Barlow on that same day, June 17, 2004.
It indicated the annual compensation was $55,458.29 and at
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pay grade 29, step A.
28. During the same meeting in which the three managers
discussed the job description, they also discussed the
housing issue. After Mr. Dyer left the meeting on the 17th,
the managers decided to provide an apartment in the Capstan
building for his use at no cost to him.
29. The Capstan building has three apartments. The first floor
has two apartments: one in the back and a larger one at the
front of the building. There was no evidence presented on
the previous use of either the front apartment or the back
apartment. The apartment on the second floor housed the
Athletic Department interns. The interns are recent college
graduates interested in gaining some coaching experience.
The Academy provides room and board and very low pay in
exchange for this experience. The rent for this apartment
is charged to the Athletic Department's budget.
30. The interns were something of a problem. The Academy had
discovered that some interns continued to stay in the apart-
ment beyond their period of employment. In addition, there
had been a number complaints of drinking, noise and general
rowdiness. The managers thought that the presence of a
responsible adult in the building would bring some order to
the situation. They viewed the use of one of the apartments
by Mr. Dyer as a convenient solution to the problem.
31. The Human Resources Action Notice completed on June 17,
2004, indicated that Academy housing in the Capstan building
front apartment was being provided at no charge to Mr. Dyer.
32. At this time, President Tyler was aboard the training vessel
for part of the annual cruise, but he was able to receive
e-mails. On June 18, 2004, his secretary sent him an e-mail
in which she wrote "Gene Moyers had a very good meeting with
the Athletic Director candidate yesterday. He made as high
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an offer as he could and expects to hear back from the
candidate next week."
33. Sometime after the meeting on the 17th, Dean Barlow left a
voice message for Mr. Dyer asking him to delay a decision
until after he had a chance to meet with President Tyler
when he returned from the cruise. Dean Barlow testified
that Mr. Dyer's concerns were not just the commute and the
salary, but also included the resources that were necessary
in the Athletic Department. Dean Barlow thought it was
important for Mr. Dyer to have a chance to discuss these
concerns with the president.
34. Mr. Dyer responded to Dean Barlow's voice-mail message with
an e-mail message saying:
I must admit that I have conflicting emotions as I
think about the job offer. On the one hand, I
would welcome the challenge and am excited about
the possibilities to make a positive contribution
to MMA. On the other, I wonder about the
logistics of the commute and the decline in
compensation.
As you requested, I am willing to delay a final
decision until President Tyler returns from the
cruise. I will be in Connecticut for a wedding
this weekend, returning late in the day on Monday.
You may contact me on Tuesday so that we can
attempt to reach a resolution.
35. Dean Barlow responded to Mr. Dyer by e-mail setting up an
appointment with himself and President Tyler for the
following Tuesday morning, June 29, 2004.
36. Mr. Dyer testified that he did not learn that the salary had
been increased until his meeting with President Tyler on
June 29, 2004. At that meeting, President Tyler explained
that the job had been adjusted and that the offer was as
high as he could go due to the agreement with the Union.
They also discussed the concerns about the Athletic
Department that Mr. Dyer had first raised in the meeting on
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the 17th of June.
37. President Tyler and the Academy's director of operations
showed Mr. Dyer the Capstan building. Mr. Dyer testified
that the interns' apartment looked like something out of
"Animal House" or a sloppy fraternity room. For some
reason, they were unable to look at the front apartment in
Capstan, but looked at the back apartment instead. Mr. Dyer
said that the back apartment was rather shabby and in need
of some maintenance.
38. Mr. Dyer returned to the campus for a third time a couple of
days later with his wife. They met with President Tyler and
were shown the front apartment, which had newer appliances,
and was in better condition and larger than the back
apartment.
39. Mr. Dyer called President Tyler on July 4, 2004, to accept
the job. On July 13, 2004, Mr. Dyer signed the formal
acceptance letter which specified an annual salary of
$55,458.29 and stated,
. . . In that the MMA Athletic Director is
responsible for overseeing the Athletic Interns,
(who are housed in the Capstan apartment house)
the Department will be provided with an additional
apartment (Capstan/Front) in that building for
your use in that capacity.
40. John Floyd, as the chief Union steward, received a copy of
the new job description of the director of athletics
sometime in mid- to late July. This was the first notice
the Union had that the job had been reevaluated and assigned
a new pay range. Mr. Floyd learned that Mr. Dyer had been
hired when someone called him to tell him they had seen it
reported on the television news.
41. The Employer had never reevaluated or reclassified a job
after it had been advertised or after candidates had been
interviewed.
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42. Mr. Moyers' employment with the Academy ended in August of
2004.
DISCUSSION
The issue presented is whether the Employer's conduct in
changing the starting salary for the director of athletics
position and providing the Capstan apartment to the new athletic
director amounted to a failure to bargain in good faith in
violation of 26 M.R.S.A 1027(1)(E) and whether that conduct
further violated 1027(1)(A). There is no dispute that the
Employer changed the starting salary for the position and
provided an apartment as part of the offer of employment to the
new athletic director. There is also no dispute that the
Employer did not notify the Union of these changes and provide it
with an opportunity to bargain. The dispute centers on whether
the Employer's actions violated the Act.
Once a union becomes certified or recognized as the
bargaining agent, the employer is obligated to bargain solely
with that union over the terms and conditions of employment for
employees in that unit. 26 M.R.S.A. 1025(2)(B) (the certified
union is "the sole and exclusive bargaining agent for all of the
employees in the bargaining unit"). This principle of
exclusivity, found in all of Maine's collective bargaining
statutes as well as the National Labor Relations Act, "exacts the
negative duty to treat with no other." Medo Photo Supply Corp.
v. NLRB, 321 U.S. 678, 684 (1944), quoted in MSEA v. Bangor
Mental Health Inst. (BMHI) and State of Maine, No. 84-01, at 7
(Dec. 5, 1983). Bypassing the bargaining agent, either by making
a unilateral change in a mandatory subject or by direct dealing,
is a failure to bargain in good faith in violation of 1027(1)(E)
because it is equivalent to an outright refusal to bargain.
MSEA v. State of Maine, Bureau of Alcoholic Beverages, No. 78-23
(July 15, 1978) ("a public employer's unilateral change in a
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mandatory subject of bargaining undermines negotiations just as
effectively as if the public employer altogether refused to
bargain over the subject"), aff'd State of Maine, Bureau of
Alcoholic Beverages v. MLRB and MSEA, 413 A.2d 510 (Me. 1980) and
MSEA v. BMHI, No. 84-01, at 6, citing Farm Crest Bakeries, 241
N.L.R.B. 1191, 1196-97 (1979) (It is a "venerable principle of
labor law" that an employer acts in bad faith and violates the
Act by dealing directly with its represented employees concerning
their working conditions). Furthermore, negotiating with anyone
other than the bargaining agent is "subversive of the mode of
collective bargaining which the statute has ordained . . . [and]
is therefore an interference with the rights guaranteed by
Section 7 and a violation of Section 8(1) of the Act." Medo
Photo Supply Corp. v. NLRB, 321 U.S. at 684, quoted in MSEA v.
BMHI, No. 84-01, at 7; see also Allied Signal, Inc., 307 NLRB
752, 753 (May 29, 1992) ("an employer who deals directly with its
unionized employees or with any representative other than the
designated bargaining agent regarding terms and conditions of
employment violates Section 8(a)(5) and (1)"). Accord, Teamsters
v. Town of Fairfield, No. 94-01, at 54 (Oct. 1, 1993) and
Teamsters v. Aroostook County Sheriff's Dept., No. 92-28, at 24
(Nov. 5, 1992).
In the present case, the Employer's arguments are numerous
and varied: It argues that its conduct was not improper because
it was consistent with past practice; that the changes it made
were prompted by the memo from the selection committee and not by
any discussions with Mr. Dyer; that it did not bargain with
Mr. Dyer; and that because Mr. Dyer was not an employee at the
time of the complained-of conduct, the Union was not his
bargaining agent. The first and last of these arguments can be
dispensed with in short order because they concern legal
arguments not relevant to this case; the other two will be dealt
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with in light of the evidence presented.
The Academy argues that it has not violated the law because
its action in changing the salary was consistent with the estab-
lished practice for creating new positions, or, alternatively,
for revising vacant positions. Whether it was creating a new job
or revising an existing job in accordance with past practice
misses the point: The question is not whether the change was
consistent with past practice but whether the change was made
unilaterally. If the change was not unilateral and the
individual or organization that the Employer was negotiating with
was not the bargaining agent, then the law was violated. Past
practice may be relevant when the charge is a unilateral change,[fn]3
but it is not relevant when the action complained of is dealing
with an individual or an entity other than the bargaining agent.
To decide this case on the basis of consistency with past
practice would skirt the central question of the case- that is,
whether the Employer violated the law by bargaining with someone
other than the bargaining agent.
The Academy argues that there can be no violation because
Mr. Dyer was not an employee when the job was reevaluated.
Again, this misses the point that the complaint alleges a failure
to bargain with the Union about wages and benefits of a new hire.
Mr. Dyer's status is irrelevant to the question of whether the
Employer had a duty to bargain with the Union about those
subjects. The Employer has an obligation to bargain about issues
concerning applicants if those matters "vitally affect" the terms
____________________
3 Consistency with past practice is an exception to the rule that
a unilateral change in a mandatory subject of bargaining constitutes a
refusal to bargain. See MSEA v. State of Maine, No. 78-23, at 4,
(July 15, 1978); and AFUM, UMPSA, and MTA v. University of Maine, Nos.
82-15, -16 & -22, at 7 (Sept. 27, 1982). The record shows that the
Employer had never reevaluated a position or revised and reclassified
a vacant position after the job had been posted and candidates inter-
viewed, such as occurred in this case. The Employer's argument based
on past practice therefore would fail even if it were relevant.
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and conditions of unit employees. Star Tribune, 295 NLRB 543,
546-7 (1989)[fn]4 (pre-employment drug and alcohol testing is not a
mandatory subject of bargaining because testing of applicants
does not "vitally affect" unit employees). The wages offered to
applicants are the wages paid to newly hired employees and are
thus mandatory subjects. Monterey Newspapers, Inc., 334 NLRB
1019, 1020 (2001); St. Vincent Hospital, NLRB Div. of Judges,
Aug. 4, 2004 (Cracraft, ALJ) (signing and relocation bonuses paid
to applicants is a mandatory subject of bargaining).
We now turn to the question of whether the conduct of the
Employer in communicating with the applicant constituted
bargaining with someone other than the bargaining agent over the
terms and conditions of bargaining unit employees. The Employer
first argues that it did not bargain directly with Mr. Dyer, but
that it was responding to the recommendations of the selection
committee when it revised the job and reassigned it to pay range
29. The Employer points out that the issues were brought to the
attention of the selection committee by the four internal
candidates who were interviewed, not by Mr. Dyer. The Employer
claims that the decision to reexamine the position was underway
on June 10, when President Tyler sent an e-mail to Dean Barlow.
We find that e-mail to be ambiguous, at best. The statement that
"our initial offer to him will be considerably less than he
currently makes" is hardly the expression of Tyler's "immediate
resolve to address the [Committee's] recommendations" that the
Employer contends. (MMA brief at 10). In spite of the
Employer's assertions, there is no evidence in the record to
indicate that the president's e-mail was intended or interpreted
____________________
4 See Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass,
404 U.S. 157, 179 (1971) (adopting the NLRB's "vitally affects" test
but holding that health insurance plan for retirees was not a
mandatory subject of bargaining because any effect on unit employees
was "speculative and insubstantial at best").
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as a direction to reexamine the position.
The record provides ample support for our conclusion that
the Employer's communication with Mr. Dyer prompted it to change
the wage for the athletic director position. On June 17, the
Employer presented the offer at range 26, step A and explained
that they could not go above step A, regardless of his extensive
experience. When he expressed his dismay, they indicated that
they were going to be looking at the job again. The inference is
clear: If Mr. Dyer had been satisfied with the salary as
initially presented, the Academy would not have proceeded with
the reevaluation. There is no other rational explanation for the
Employer's action: They made a verbal offer at range 26, step A,
Mr. Dyer was surprised and dismayed, and he stated that it was
"considerably less" than his current salary. It was not until
that point that the Employer responded by stating that they would
be taking another look at the job description and pay range.
If the decision to reexamine the position "was underway on
June 10" as the Employer argues, one would expect to see some
evidence in the record to support this. There are a number of
things that the Employer could have done that would give some
credence to their argument that they were acting unilaterally in
response to the selection committee's recommendation. Clearly,
if they had reevaluated the job before meeting with Mr. Dyer, the
Employer's argument would be more credible.[fn]5 Similarly, even if
the Employer had not reevaluated the job before the June 17
meeting with Mr. Dyer, they could have told him that they were
planning a reevaluation, but had not had the chance to do so.
____________________
5 If, in fact, the revised job description would conceivably
change the type of candidate selected, as Mr. Ericson testified, then
a different job description would also probably attract other
candidates as well, particularly with such a significant change in
starting salary. The Academy did not, however, re-advertise the
position after making the changes.
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If it really was their plan to reevaluate, no purpose would be
served by making an initial offer Mr. Dyer at the lower pay
grade. The purpose of making the offer was to solicit a
reaction.
The Employer claims in its brief that the managers involved
simply did not have the chance to meet with each other to look at
the job before they met with Mr. Dyer on the afternoon of
June 17, 2004.[fn]6 Again, the question should be why the Employer
failed to notify the Union, not why the Employer was not able to
reevaluate the position before meeting with Mr. Dyer. There is
no evidence that the Employer notified the Union that a change
was being contemplated prior to the change being made on June 17.
As the Law Court noted in City of Bangor v. AFSCME, affirming the
Board's decision interpreting the Municipal Public Employee Labor
Relations Law:
. . . Concomitant with the characterization of a
subject as within the duty to negotiate is a duty of
the employer to notify the union to provide it with an
opportunity to bargain over it. The failure to do so
violates 964(1)(E).
City of Bangor v. AFSCME, 449 A.2d 1129 (Me. 1982) (citation
omitted). The same principle applies under the University Act.
The Employer also argues that the discussions with Mr. Dyer
were not bargaining and therefore no violation occurred. In
support of this argument, the Employer points out that the
parties never discussed a salary increase, in either specific or
general terms. While it is true that Mr. Dyer never informed the
Academy of his salary at the University of Maine, that is not the
same thing as saying that the managers involved had no idea how
much money Mr. Dyer made. He was employed at another public
higher education institution located only an hour or so from
Maine Maritime Academy. President Tyler, who had a strong
____________________
6 We note there is very little evidence supporting this argument.
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connection to athletics, gave some indication that he knew about
the market for athletic directors when he noted in his June 10
e-mail that the initial offer would be much less than Dyer's
current salary. The fact that salary needs or expectations were
not discussed directly does not negate the evidence that the
Employer negotiated with Mr. Dyer.
Similarly, the Employer argues that because there were no
express give-and-take negotiations before Mr. Dyer accepted the
job, the Employer's simple discussions with the applicant were
not "bargaining." We have previously observed that the fact that
an employer "did not 'bargain' with the [employees] in the
traditional sense of exchanging proposals and making compromises
back and forth is of no consequence." MSEA v. BMHI, No. 84-01,
at 8 (meeting with shift nurses to resolve a shift coverage
problem was direct dealing regarding hours of work). In many
situations, communications between the parties are as subtle as
facial expressions and body language. In this case, we conclude
that the Employer was bargaining with Mr. Dyer: It solicited a
response from him by making the low offer, then responded to his
dismay by changing the starting salary for the position. All of
this occurred without notice to the Union and an opportunity to
bargain.
We also find that the subsequent exchanges demonstrate
continued bargaining. Dean Barlow called Mr. Dyer and left a
message asking him to delay his decision until after he had a
chance to speak with President Tyler. Mr. Dyer responds by
e-mail that he would hold off on his decision on the job offer.
He again mentioned his concern about "the logistics of the
commute and the decline in compensation." He said he would be
available the following week "so that we can attempt to reach a
resolution." Clearly, these words indicate an expectation that
his concerns would be addressed by an improved offer. When they
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next met, the Employer offered him a higher salary as well as the
apartment. In light of these exchanges and actions on the part
of the Employer, we conclude that the Employer did not act
unilaterally in changing the job description and pay range for
the director of athletics position. On the contrary, the
Employer negotiated directly with Mr. Dyer regarding the terms
and conditions of his employment in violation of 26 M.R.S.A.
1027(1)(E) and (1)(A).
With respect to the housing issue, the Employer argues that
the Capstan apartment was not a benefit because it was not
provided to Mr. Dyer as an individual, but was provided to the
Athletic Department. The Employer's stated goal was to provide
some supervision of the athletic interns and to have the
apartment available for others to use, such as visiting coaches
and prospective students. The Employer also claims that there
was never an intent that Mr. Dyer would use the apartment as a
permanent place of residence. There was no testimony, however,
that the apartment had ever been used to house visiting coaches,
or visiting applicants, or that anyone else in the department had
ever stayed there in order to provide a moderating influence on
the behavior of the interns. The appointment letter, the only
document describing this benefit, gives no indication that anyone
other than Mr. Dyer would be using the apartment. Similarly,
there was no evidence to suggest that Mr. Dyer was precluded from
using the apartment as a permanent residence. Given the absence
of restrictions on its use, we fail to see how the provision of
the apartment to the Athletic Department for the director's use
is any different than providing it directly to Mr. Dyer.[fn]7
Similarly, we do not consider the free and unrestricted use of
____________________
7 This arrangement could simply be an accounting convenience,
enabling the Athletic Department to be charged for the rent, as it is
charged for the rent of the interns' apartment.
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the Capstan apartment to be comparable to the occasional and
temporary use of the rooms in Leavitt Hall that are available to
all employees, as the Employer contends.
In the present case, it is clear that the provision of
Employer-owned housing at reduced rents is a mandatory subject of
bargaining as it "materially and significantly affects" a term or
condition of employment, especially for those whose proximity to
the campus is a requirement of the job. See AFUM, UMPSA and MTA
v. Univ. of Maine, Nos. 82-15, 82-16 and 82-22, at 10 (Sept. 27,
1982) (holding that parking fees was a mandatory subject but fees
for athletic lockers available to employees and the public was
not). See also IAM District Lodge #4 v. Town of Wiscasset, No.
03-14, at 6-7 (Feb. 23, 2004) (holding that established practice
of allowing employees to work on their vehicles in the town
garage after work was a mandatory subject of bargaining). The
Employer admits in its brief that "Housing can be a sensitive
issue on campus when faculty desire to live near campus in
reduced rent houses" (Brief at 14), because "affordable housing
in the Castine area is scarce." (Reply Brief at 9).[fn]8 The
Employer has negotiated with the Union over problems concerning
available housing and has a policy on Employer-provided rental
units. The policy gives preference for housing at reduced rent
to certain jobs whose duties necessitate living near the campus.
Providing a free apartment to Mr. Dyer was a change in benefits
and the Employer had a duty to notify the Union and provide an
opportunity to bargain. Failure to do so constituted a failure
to bargain in good faith in violation of section 1027(1)(E) and
(A).
The evidence supports our conclusion that the Employer
____________________
8 The Employer's own Human Resources Action Form, which is used
to establish the pay and benefits of an individual new employee, lists
housing along with other benefits like health insurance and life
insurance. Comp. Ex. #13.
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decided to offer this housing benefit to Mr. Dyer in direct
response to his request for such an accommodation. There is no
evidence that the Employer had considered offering this type of
benefit prior to that discussion. Once Mr. Dyer raised the
subject, the Employer was able to come up with an offer of free
housing in the Capstan apartment that satisfied his request. The
fact that this arrangement provided a benefit to the Employer as
well does not affect our analysis, as it does not diminish the
value of the benefit to Mr. Dyer. In taking this action, the
Employer bargained directly with Mr. Dyer in violation of the
Act.
Having concluded that the Employer violated section
1027(1)(E) and (A) of the Act, we must now consider the approp-
riate remedy. The Union requests a cease and desist order, an
order to post notices in the Employer's work sites, and an order
that the Employer rescind the changes made to the athletic
director position and bargain with the Union over any proposal to
change the existing terms and conditions of bargaining unit
employees. The Union also requests attorneys' fees, which we
must deny because we have no statutory authority to award
attorneys' fees.
We conclude that the most appropriate remedy in the
circumstances of this case is to issue a cease and desist order
and to require the parties to bargain over the change to the pay
of the director of athletics and the provision of the Capstan
apartment while maintaining the status quo for a finite time.
We conclude that the maximum time in which to allow bargaining
over these issues should extend only to the beginning of the next
academic year. If the parties are unable to come to an agreement
on the pay issue by the beginning of the next academic year (that
is, the start of the school year in August, 2006), the pay for
the director of athletics must be changed to the level he would
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be earning had he started his employment at pay grade 26, step A
and received normal progression in pay. If the parties are
unable to come to an agreement on the Capstan apartment or some
other housing accommodation for the director of athletics, the
housing available to him must be comparable to that available to
other unit employees. We will require the Employer to post the
attached notice for 30 days.
Thus, we deny the Union's request that we order the Employer
to immediately rescind the changes made to the director of
athletic's pay range. We think such an order would have the
effect of penalizing the athletic director for the wrong
committed by the Employer. The Employer has committed a serious
violation of the law in bypassing the Union on these matters.
It is essential that the Employer comply with its statutory
obligations and respect the statutory rights of its employees.
We have fashioned this order to remedy the Employer's violation
of the Act, not to penalize the director of athletics.
ORDER
On the basis of the foregoing findings of 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.
1029, it is hereby ORDERED:
Respondent Maine Maritime Academy and its representatives and
agents shall:
1. Cease and desist from negotiating directly with any
applicant or employee in any classification in a
bargaining unit represented by the Maine State
Employees Association over any mandatory subject of
bargaining.
2. Cease and desist from interfering with employees in
the free exercise of their rights to voluntarily join,
form and participate in the activities of organizations
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of their own choosing for the purposes of representa-
tion and collective bargaining.
3. Take the affirmative action designed to effectuate
the purposes of the Act of meeting with the Maine State
Employees Association for the purposes of negotiating
the salary of and any housing provided to the director
of athletics within ten days of receipt of this order.
The parties may meet beyond the ten-day period if
mutually agreeable.
4. Maine Maritime Academy shall post for thirty (30)
consecutive days copies of the attached notice to
employees which states that the Academy will cease and
desist from the actions set forth in paragraphs one and
two and will take the affirmative action set forth in
paragraphs three, four, five and six.[fn]9 The notice must
be posted in conspicuous places where notices to
Academy employees are customarily posted, and at all
times when such employees customarily perform work at
those places. Copies of the notice must be signed by
the Academy president prior to posting and must be
posted immediately upon receipt. The president must
take reasonable steps to ensure that the notices are
not altered, defaced, or covered by other materials.
5. If Maine Maritime Academy and the Maine State
Employees Association are unable to come to an
agreement on the pay for the director of athletics
position by the beginning of the 2006-2007 academic
year, it is hereby ORDERED that the pay for the
incumbent should revert to what it would have been had
he been hired at pay range 26, step A and experienced
normal progression in pay. This change must be
effective at the start of the 2006-2007 academic year.
If Maine Maritime Academy and the Maine State Employees
Association are unable to come to an agreement on the
housing, if any, provided to the director of athletics
by the beginning of the 2006-2007 academic year, it is
hereby ORDERED that the housing available to him must
be comparable to that available to other unit
employees.
____________________
9 In the event that the Board's Decision and Order is appealed
and is affirmed by the Maine Superior Court, the words in the Notice
"Posted by Order of the Maine Labor Relations Board" shall be altered
to read "Posted by Order of the Maine Labor Relations Board, affirmed
by the Maine Superior Court."
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6. The Academy president or the Academy's vice
president of administration and finance must notify the
Board by affidavit or other proof of the date of
posting and of final compliance with this order.
Dated at Augusta, Maine, this 31st day of January, 2006.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right to seek review /s/_______________________
of this decision and order Jared S. des Rosiers
by the Superior Court by Alternate Chair
filing a complaint pursuant
to 26 M.R.S.A. 1029(7) and
in accordance with Rule 80C /s/________________________
of the Rules of Civil Karl Dornish, Jr.
Procedure within 15 days of Employer Representative
the date of this decision.
/s/________________________
Robert L. Piccone
Alternate Employee
Representative
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NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE MAINE LABOR RELATIONS BOARD
AFTER HEARING THE PARTIES' EVIDENCE, THE MAINE LABOR RELATIONS
BOARD CONCLUDED THAT WE HAVE VIOLATED THE LAW AND ORDERED US TO
POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE
LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING:
WE WILL CEASE AND DESIST from negotiating directly with
any applicant or employee in any classification in a
bargaining unit represented by the Maine State
Employees Association over any mandatory subject of
bargaining. We will comply with our statutory
obligation to bargain with the Maine State Employees
Association as the exclusive representative of
employees in the bargaining units at the Academy.
WE WILL TAKE THE AFFIRMATIVE ACTION of meeting with the
Maine State Employees Association within ten days of
receipt of the Board's ORDER for the purposes of
negotiating the salary of and any housing provided to
the director of athletics. We may meet beyond the
ten-day period if mutually agreeable. If we are unable
to come to an agreement on the pay issue by the begin-
ning of the 2006-2007 academic year, the director of
athletics pay will be changed to the level he would be
receiving had his salary started at pay range 26, step
A and he experienced normal progression in pay. If we
are unable to come to an agreement on the housing issue
by the beginning of the 2006-2007 academic year, the
housing available to the athletic director must be
comparable to that available to other unit employees.
WE WILL post this notice of the Board's Order for 30
consecutive days in conspicuous places where notices to
Academy employees are customarily posted, and at all
times when Academy employees customarily perform work
at those places.
WE WILL notify the Board of the date of posting and
final compliance with its Order.
_______________ ________________________________________________
Date Leonard Tyler, President
Maine Maritime Academy
This Notice must remain posted for 30 consecutive days as required by
Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
90 STATE HOUSE STATION
AUGUSTA, ME 04333-0090 (207) 287-2015
________________________________________________________________
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.
_______________________________________________________________