STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-49
_________________________________
)
MARANACOOK COMMUNITY SCHOOL )
STAFF ASSOCIATION )
)
Complainant, )
)
v. )
)
MILLARD D. HARRISON, )
Superintendent of Schools ) DECISION AND ORDER
)
and the )
)
MANCHESTER, MT. VERNON, )
READFIELD, AND WAYNE COMMUNITY )
SCHOOL DISTRICT SCHOOL COMMITTEE,)
)
Respondents. )
_________________________________)
On January 31, 1979, the Maranacook Community School Staff Association
(Association") filed with the Maine Labor Relations Board ("Board") a prohibited
practice complaint against Superintendent of Schools Millard D. Harrison and the
Manchester, Mt. Vernon, Readfield, and Wayne Community School District School
Committee ("School Committee"). The School Committee's answer to the complaint
was filed February 22, 1979.
A pre-hearing conference on the case was held on March 13, 1979, Alternate
Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on
March 20, 1979 a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.
In April, 1979, the Association and the School Committee agreed that a Board
hearing examiner would conduct a unit proceeding pursuant to 26 M.R.S.A. 966
to determine whether the Administrative Assistant to the Principal position was
included in a bargaining unit composed of the supervisory and non-supervisory
staff employed by the School Committee. The unit hearing was held on May 23 and
May 25, 1979. On June 28, 1979 the hearing examiner issued a Unit Report which
found that the Administrative Assistant to the Principal was included in the bar-
gaining unit. The contents of this Report are also incorporated herein by refer-
ence.
A hearing on the case was held October 3, 1979, Chairman Edward H. Keith pre-
siding, with Alternate Employer Representative Thacher E. Turner and Employee Repre-
sentative Wallace J. Legge. Following the presentation of evidence, the parties
engaged in oral argument on the issues raised by the case. The Board proceeded to
deliberate over the case after the conclusion of the hearing on October 3, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this case, and we conclude that the Board has jurisdiction to hear the
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case and render a decision as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Complainant Association is a public employee organization
within the meaning of 26 M.R.S.A. 968(5)(B). Respondents
Millard D. Harrison and the School Committee are public
employers as defined by 26 M.R.S.A. 962(7) and within the
meaning of 26 M.R.S.A. 968(5)(B).
2. In January or February, 1978, the Association and the
School Committee commended negotiating for a collective
bargaining agreement for the supervisory and non-supervisory
teachers and support staff employed by the School Committee.
Agreement on a contract for this bargaining unit was reached
in December, 1978. Article XXVI(A) of the contract provides
that the agreement shall be effective as of September 1, 1978.
3. Appendix IV of Article XII in the agreement provides that
support staff "will receive a 7-1/2% increase in pay for 1978-
79 and an 8% increase in pay for 1979-80."
4. Article XXV(C) of the agreement states:
"Any individual contract between the Committee and an
individual staff member, heretofore or hereafter execu-
ted, shall be subject to and consistent with the terms
and conditions of this Agreement. If an individual
contract contains any language inconsistent with this
Agreement, this Agreement, during its duration, shall be
controlling.
5. In May, 1976, Susan Reed was employed by the School Committee
as an Administrative Secretary to the Principal. In the spring
of 1978, Reed met several times with Superintendent Harrison,
the Principal and the Community Co-ordinator to discuss the
possible upgrading of Reed's job classification. Reed felt that
her job should be upgraded because she had taken on more respon-
sibilities than those normally associated with a secretarial
position.
6. The result of these discussions was that Reed and the adminis-
tration agreed that the new position of Administrative Assistant
to the Principal would be created, that Reed would fill this new
position, that Reed's salary would be increased from $139.00 per
week to an initial rate of $160.00, and that Reed's job duties
would be clarified to provide that Reed was responsible for super-
vising clerical employees and for monitoring C.E.T.A. employees.
On May 25, 1978, the School Committee approved the agreement
reached by Reed and the administration. The salary range for the
Administrative Assistant to the Principal position was set at
$140.00 to $200.00 per week.
7. The Association did not participate in the discussions between
Reed and the administration. During an April, 1978 bargaining
session, the School Committee informed the Association that Reed's
position was to be upgraded. The Association agreed that the
position should be upgraded, and acquiesced in the fact that the
upgrading decision had been made without Association participation.
The question whether Reed was to receive any salary increase
negotiated by the Association and the School Committee for 1978-79
was not raised during the School Committee's discussions with Reed,
or during the negotiations with the Association.
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8. Reed assumed her new position on August 1, 1978. The increase
in her salary from $139.00 per week to $160.00 represents an
approximate increase of 15%. The position of Administrative
Assistant to the Principal is a support staff position.
9. In December, 1978, the support staff members of the bargaining
unit received a 7-1/2% salary increase for the 1978-79 school
year pursuant to Appendix IV of Article XII of the agreement
negotiated by the Association and the School Committee. Reed
did not receive this increase, however. When Reed asked Harri-
son why she too had not received the raise, the Superintendent
replied that the $160.00 per week salary arrived at for the
Administrative Assistant position represented the entire nego-
tiated wage for the position for the 1978-79 school year, and
that the Administrative Assistant position was not part of the
bargaining unit in any event. The School Committee subsequently
agreed that Reed was entitled to receive the 8% raise negotiated
for the 1979-80 school year, but continued to adhere to its po-
sition that she was not entitled to the 7-1/2% increase for the
1978-79 school year.
10. In a unit proceeding report dated June 28, 1979, a Board hearing
examiner determined that the Administrative Assistant to the
Principal position was included in the bargaining unit. The
School Committee filed timely notice of appeal of this determina-
tion. The School Committee conceded at the October 3, 1979 hear-
ing that the Administrative Assistant was a member of the bar-
gaining unit, however, and consequently has not pursued its appeal
of the unit report.
DECISION
The Association charges that the School Committee violated 26 M.R.S.A.
964(1)(E) by failing to pay Reed the 7-1/2% pay raise which the parties had
negotiated for the support staff for the 1978-79 school year. The School Com-
mittee urges that it committed no violation of the Act because it intended that
Reed's increase in salary in August, 1978 would remain in effect without being
increased for one fiscal year, and because the Association agreed that Reed's
salary would not be increased during the 1978-79 school year.
As discussed more fully below, we find that the School Committee has violated
the Act. We will order remedies necessary to effectuate the policies of the Muni-
cipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. ("Act").
The prohibition of a public employer's unilateral changes in wages, hours and
working conditions is well known. See, e.g., N.L.R.B. v Katz, 369 U.S. 736 (1962).
Lake Teachers Association v. Mount Vernon School Committee, M.L.R.B. No. 78-15
(1978). The essence of this prohibition is that once a bargaining agent has begun
to represent a unit of employees, the employer may not make unilateral changes in
mandatory subjects of bargaining without negotiating the changes with the bargain-
ing agent. Any unilateral change in wages, hours and working conditions constitutes
a per se violation of the duty to bargain, found in the Act in Section 964(1)(E).
The rationale for this prohibition is that unilateral changes involving subjects
about which the employer is obligated to bargain frustrates the duty to bargain
just as effectively as does a flat refusal to bargain. N.L.R.B. v. Katz, supra,
369 U.S. at 743.
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In the present case it is plain that the School Committee unilaterally
changed the wage agreement for the support staff, unless it can be shown that
the parties agreed that Reed would not receive the 7-1/2% raise negotiated
for the 1978-79 school year.[f]1 The parties clearly and unequivocally agreed in
Appendix IV of Article XII of their agreement that the support staff "will
receive a 7-1/2% increase in pay for 1978-79." Reed is a member of the support
staff. A Board hearing examiner has found that Reed's position is included in
the bargaining unit described in the agreement's recognition clause, and the
School Committee has conceded this point
In the absence of clear and convincing evidence of a contrary agreement,
then, the facts establish that the School Committee is obligated under the
agreement to pay the 7-1/2% raise to Reed Since wages are a mandatory subject
of bargaining, 26 M.R.S.A. 965(1)(C), a failure to pay all members of the
support staff the negotiated wage would constitute an impermissible unilateral
change in wages.
The record contains no clear evidence of any agreement between the School
Committee and Reed or the Association that Reed would not receive the 7-1/2%
raise.[fn]2 The School Committee argues that it intended that Reed's August 1, 1978
salary increase would not be subject to increase for one year, and that any raise
subsequently negotiated for the 1978-79 school year would not apply to Reed.
Moreover, the School Committee contends, the Association was aware that the
practice when the initial salary was set for a new position was that the salary
would remain unchanged for a year.
The record shows that on August 1, 1978 Reed's salary was increased from
$139.00 per week to $160.00 per week, an increase of approximately 15%. This
increase occurred in the context of the upgrading of Reed's job. Reed's assump-
tion of the new position of Administrative Assistant to the Principal, and the
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1The evidence shows that in the spring of 1978, the School Committee was
negotiating simultaneously with the Association as bargaining agent for the
bargaining unit, and with Reed as an individual. While we have held in many
cases that any attempt to bypass the bargaining agent by negotiating directly
with an employee is a violation of Section 964(1)(E), it is plain that there
was no such violation in this case. According to the testimony of the
Association's Chief Negotiator, the Association was aware of, and acquiesced
in, the School Committee's discussions with Reed. The Association consequently
waived its right to object to the School Committee's negotiations with Reed.
__________
2Even if there was clear evidence of such an agreement between Reed and the
School Committee, this agreement would be overridden by Article XXV(C) of the
collective bargaining agreement. That Article provides that the collective
bargaining agreement is controlling over inconsistent language contained in any
individual contract between the School Committee and a staff member. Appendix
IV of Article XII, which provides that support staff will receive a 7-1/2%
raise in 1978-79, thus would be controlling over any contrary agreement reached
by Reed and the School Committee.
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clarification of Reed's responsibilities. The past practice had been that
the salary initially set by the School Committee for a new position was not
subject to change for the next fiscal year.
The problem with the School Committee's arguments is that intent and
past practice do not constitute a clear agreement between the parties which
could override the plain language of the wage agreement. Not only does the
agreement itself contain no provision which suggests that Reed is not to
receive the raise, but the record also shows that the School Committee's
intent regarding Reed's August 1, 1978 salary increase was not communicated
to Reed or to the Association prior to December, 1978. In addition, the School
Committee has offered no evidence of any agreement, written or oral, which
would suggest that either Reed or the Association agreed that Reed would not
receive the raise.
The issue whether Reed was to receive any raise subsequently negotiated
by the parties simply was not raised by anyone during the negotiations with
Reed over the job upgrading, or during the negotiations with the Association
over the contract. It was not until Reed discovered that she was not receiving
the raise when it was implemented in December, 1978 that the issue arose.
Since the question whether Reed was to receive in 1978-79 any subsequent nego-
tiated raise was not discussed by the parties, it is obvious that there was no
meeting of minds, and thus no agreement, on the issue.
While the Association may well have been aware of the practice that the
initial salary set for a new position would remain unchanged for a year, we
cannot find that such awareness constitutes a specific agreement that Reed's
salary set on August 1 would remain unchanged for the next year. It is likely
that many past practices were changed once the parties executed the agreement,
and the School Committee has offered no evidence which shows that the Associa-
tion understood that past practice regarding the initial wage set for a new
position would continue to apply to Reed. We consequently cannot find that the
Association impliedly agreed, by its knowledge of the past practice, that the
salary set on August 1 would remain unchanged for the next year.
In concluding that the School Committee has violated the Act, we do not
doubt that the School Committee genuinely intended in good faith that Reed
would not receive the 7-1/2% raise. The School Committee assumed at its own
peril that Reed and the Association shared this intent, however. It was incum-
bent on the School Committee to formalize its intent in the form of an agreement
with the Association that Reed would not receive the raise. This the School
Committee failed to do. In the absence of such an agreement, the School Committee
is obligated to live by the plain terms of its collective bargaining agreement.
In sum, we conclude that there was no agreement that Reed would not receive
the 7-1/2% raise for 1978-79 negotiated by the parties. The School Committee
accordingly was bound by the terms of the collective bargaining agreement to pay
Reed the 7-1/2% raise. The failure to do so constitutes a unilateral change in
the wage provision contained in the collective bargaining agreement. This uni-
lateral change in wages constitutes a per se violation of Section 964(1)(E).
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Upon finding a party in violation of the Act, we are directed by Section
968(5)(C) to issue "an order requiring such party to cease and desist from such
prohibited practice and to take such affirmative action . . . as will effectuate
the policies of this chapter." We accordingly will order the School Committee to
cease and desist from unilaterally changing the wage provision in the collective
bargaining agreement. Because Reed was entitled under the agreement to receive
a 7-1/2% raise for the 1978-79 school year, we will also order the School Com-
mittee to take the affirmative action of paying Reed the 7-1/2% raise. Since
the collective bargaining agreement was effective as of September 1, 1978, the
raise must be computed from that date through the end of the school year. This
remedy is necessary in order to effectuate the policies of the Act and to restore
the status quo. Caribou School Department v. Caribou Teachers Association, 402
A.2d 1279, 1284-1285 (Me. 1979).
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, it is hereby ORDERED:
That Superintendent of Schools Millard D. Harrison and
the Manchester, Mt. Vernon, Readfield and Wayne Community
School District School Committee
1. Cease and desist from unilaterally changing
the wage provision contained in the collective
bargaining agreement presently in effect, and
2. Pay Susan Reed the 7-1/2% raise provided for
in the collective bargaining agreement from
September 1, 1978 through the end of the
1978-79 school year.
Dated at Augusta. Maine this 8th day of November, 1979,
MAINE LABOR RELATIONS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Thacher E. Turner
Alternate Employer Representative
/s/________________________
Wallace J. Legge
Employee Representative
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