STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-45
________________________________
)
LEWISTON TEACHERS ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
LEWISTON SCHOOL COMMITTEE, )
)
Respondent. )
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The Lewiston Teachers Association (LTA) filed this prohibited practice
complaint (p.p.c.) on May 5, 1980, alleging that the Lewiston Board of Educa-
tion (LBE) had committed prohibited practices by refusing to bargain concern-
ing the wages, hours, and working conditions of school nurses. The nurses
had been hired in late 1978 and had been the subject of a unit clarification
report of September 1979 which determined that the school nurses were in the
bargaining unit represented by the LTA. The complaint also alleged that the
employer failed to honor ten day notices (26 M.R.S.A. 965(1)(B)) and had
unilaterally changed the working conditions of the nurses with respect to
pensions, frequency of pay, life insurance, number of hours of work per week,
and health insurance. The Lewiston School Committee (LSC) (see Finding of
Fact Par. 1) filed an answer on May 19, 1980, alleging that it was not
required to bargain because of a zipper clause in its collective bargaining
agreement with the LTA and also because the LTA had not served a 120 day
notice (26 M.R.S.A. 965(l) second para.). The employer also claimed that
each of the unilateral changes it made was not a prohibited practice for a
variety of reasons: two changes were required by law, one change was de
minimis, one change was rescinded prior to effectuation, one change was made
by a different employer, and one change was required because the nurses had
become members of the Maine Teachers Association (MTA).
A pre-hearing conference was held on June 9, 1980, by Alternate Chairman
Donald W. Webber, who issued a Pre-Hearing Conference Memorandum and Order
dated June 17, 1980, the contents of which are incorporated herein by
reference. The parties stipulated to the facts of the case and submitted the
matter on briefs. The LTA was represented by Keith C. Harvie, AND-OX UniServ
Director; the LSC by Frederick G. Taintor, Esq.
JURISDICTION
Jurisdiction of the Maine Labor Relations Board to hear and decide this
case lies in Section 968(5) of the Municipal Public Employees Labor Relations
Law (Act), 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record the Board concludes that:
1. The LTA is a public employee organization and a bargaining agent
within the meaning of 26 M.R.S.A. 968(5)(A) and 962(2). The
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LBE and LSC are public employers within the meaning of 26 M.R.S.A.
962(7). The LSC superseded the LBE on January 1, 1980, and
assumed all relevant contract rights and obligations of the former
LBE.
2. Prior to September 1978, a number of nurses were employed by the
Lewiston Board of Health and Welfare (BHW). These nurses were
members of the "general bargaining unit" represented by the American
Federation of State, County and Municipal Employees (AFSCME). Be-
cause of a unique, tripartite public employer arrangement in the City
of Lewiston,[fn]1 AFSCME has collectively bargained for a number of
different employee classifications employed by one of nine different
employer entities, each entity consisting of a combination of (1) the
Board of Finance, (2) the Bqard of Mayor and Aldermen, and (3) one of
nine boards or commissions.[fn]2 Thus, one employer entity was the
combination of the Board of Health and Welfare, the Board of Finance,
and the Board of Mayor and Aldermen. Another included the LBE.[fn]3
The bargaining unit description in the AFSCME contract is: "all of
its [each of the nine entities] Public Employees in classifications
set forth in an Exhibit . . . ." The exhibit lists a large number of
job classifications including Janitors, Public Health Nurse I and II
and School Nurse I and II.
3. The School Nurses worked,in the schools run by the LBE. Even though
a portion of their salaries was charged to LBE, these nurses were
controlled and employed by the BHW. The LBE did employ janitors who
were represented in the AFSCME unit, however. At some point the LBE
decided that it wanted employer control over the school nurses.
Thus, the BHW, LBE, and AFSCME executed an undated "addendum" to the
1978 AFSCME contract which gave the BHW school nurses (1) "bumping
rights" on the basis of seniority with the City over other nurses
hired by LBE, (2) preference for employment with LBE if they desired,
and (3) seniority credit for years worked with BHW if hired by LBE.
The LBE received the right with respect to AFSCME to establish hours,
qualifications, work stations, job content, and wage rate. If AFSCME
should disagree with the wage rate set by the LBE, they agreed to
negotiate such.
4. The LBE also had a collective bargaining agreement with the LTA for a
bargaining unit described as follows: "the entire group of certified
professional employees of the [LBE] excluding the Superintendent,
Assistant Superintendent, Principals, Assistant Principals, and
other administrative officers."
5. Around September 1978 the LBE did hire a number of school nurses (it
is uncontested that they are certified professionals). Some of these
had previously been employed by the BHW. All of the new hires worked
thirty-five hours per week, although four continued to work five of
these hours for the BHW. The LBE began by treating all its school
nurses as if they were covered under the AFSCME contract.
6. The LTA, however, tried to get all parties to voluntarily agree to
the inclusion of the school nurses in the LTA unit. AFSCME agreed,
but the LBE would not. The LTA then filed a unit clarification
petition with
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1. In Lewiston Police Department, IBPO Local 545 v. City of Lewiston, MLRB
No. 79-64 (Dec. 18, 1979), the Board found this arrangement to be
problematical.
2. This multi-employer unit was reached voluntarily by the parties and thus
the Board has not had to consider its appropriateness under 26 M.R.S.A.
966(2).
3. Each of the three members of the employer entity would constitute a
public employer. See, Lewiston Police Department, supra.
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this Board on July 2, 1979, claiming that it had the right to
represent the school nurses. The City and the LBE opposed the
petition. AFSCME indicated in writing its willingness to waive
representational claims to the school nurses if they were in-
corporated into the LTA unit.
7. On September 25, 1979, a Board hearing examiner issued a unit
clarification report concluding:
"In summary, the conclusion is clear from the above dis-
cussion that the school nurses are and should be part of
the L.T.A. unit. It is not necessary that the unit des-
cription be modified in order to accomplish this. None-
theless, in order to reach greater certainty my determina-
tion will actually amend the current unit description by
adding the phrase "including nurses." Public employee
nurses while in the employ of the Bureau of Health and Wel-
fare will of course remain in the AFSCME unit."
8. The LTA then attempted to bargain with the LBE over the nurses.
LTA negotiator David Shea, served a 10 day notice letter dated
December 5, 1979, seeking to negotiate wages, hours, and working
conditions. By letter dated December 7, 1979, Attorney Taintor
replied stating the LBE's refusal to bargain because of a zipper
clause in the LTA contract and, with respect to wages, rates of
pay, and any other matter requiring the appropriation of money by
the City, because the LTA had not complied with the statutory 120
day notice rule. (The City's fiscal year presumably began on
January 1, 1980).
9. The LTA contract, which ran from September 1, 1979, through
August 31, 1981, (although agreed to pending ratification in
December 1978) contained the following provisions:
"Article I A. . . . .
The parties hereto have fully bargained with respect to
wages and terms and conditions of employment and have
settled upon them in accordance with the terms of this
agreement."
"Article XXX
. . .
This Agreement represents the entire agreement between
the parties, who agree that all matters which were or
might have been the subject of negotiations have been
fully discussed and resolved as expressed herein."
Taintor, nonetheless, did agree to meet within the ten day period for
the "limited" purpose of exploring possibilities, but, as clarified
in a second letter dated December 13, 1979, he clearly stated that
there would be no negotiation.
10. On December 20, 1979, Shea wrote Taintor again, countering his legal
claims and arguing that the LBE cannot claim that only the zipper
clause applies but that no other provisions of the LTA contract
apply to the nurses.
11. On January 10, 1980, Taintor notified Shea that he intended to pro-
pose an amended LTA contract which would cover the nurses, maintain-
ing that the LSC did not have the obligation to negotiate. LTA and
LSC representatives met twice in March 1980 to discuss the situation
during which the LSC concedes that it refused to negotiate.
12. On or about February 7, 1980, Asst. Supt. of Schools Tracey
announced "administrative changes" effective February 20th in a
memo to four school nurses. The LTA was not notified. The memo
made reference to the fact that the BHW had eliminated the 5 hours
per week that these four nurses had been working for BHW, that the
LSC would consider them full time employees, and that it was
instituting five changes. (The pleadings indicate that these
changes were effected for all nurses at that time.)
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(1) The district retirement program in effect for BHW employees
was dropped and the nurses were placed under the Maine State
Retirement System. (M.S.R.S.).
(2) The nurses' pay frequency was changed from weekly (as required
by the AFSCME contract) to bi-weekly (as required by the LTA
contract).
(3) Social Security coverage for the nurses was dropped.
(4) A Boston Mutual Life Insurance Program in effect for at least
one nurse was to be dropped. (When the LTA objected to this,
the LSC rescinded its plan.)
(5) Health insurance was changed from an MMA plan to the MTA plan.
The MTA plan is what is required by the LTA contract. The MTA
plan is a more desirable plan for the employees.
13. As of February 20, 1980, the 5 hours of work performed by some of
the nurses for the BHW was terminated and, although the pleadings
are silent as to who caused the termination, it is apparent from
the exhibits that the BHW effectuated the termination.
14. On April 17, 1980, Shea again sent a ten day notice, this time to
the LSC itself, addressed to the care of Superintendent Robert
Connors. On April 18, 1980, Thomas Harvey for the LTA demanded
that the LSC cease its unilateral changes, citing the above-des-
cribed changes. He stated:
"The L.T.A. understands the legal restrictions of the Maine
State Retirement System and appreciates the improvement of
health insurance coverage under the [LSC1 program, but all
of the matters cited are subject to the negotiations process
which you have been neglecting."
The LTA threatened to file a p.p.c. if these changes were con-
tinued.
15. On April 22, 1980, Connors wrote to Shea and stated his refusal
to meet to negotiate. The LSC concedes in this case that it has
refused to bargain collectively but maintains that its refusal is
fully justified by the zipper clause in the LTA contract.
DISCUSSION
A number of legal issues are presented in this rather unique situation.
School nurses who were once employed by the BHW, represented by AFSCME, and
covered under a multi-employer contract which included both the BHW and the
LSC, were hired by the LSC. The LSC also was party to a contract with the LTA
which represents its professional employees. A unit clarification proceeding
before a hearing examiner of the Board resulted in the determination that the
nurses were in the bargaining unit represented by the LTA.
The LTA argues that the LSC has refused to bargain with it regarding the
nurses and has made unilateral changes in their working conditions in viola-
tion of Section 964(1)(E).[fn]4 The LSC raises two legal issues in defense
of its refusal to bargain, a zipper clause and the 120 day notice provision.
It also propounds an argument with respect to each of the unilateral changes.
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4. The LTA also alleged that by these acts the LSC violated 26 M.R.S.A.
964(1)(A) and (B), but it did not argue these points in the brief.
We acknowledge that a violation of any subsection of Section 964(1) would
constitute a derivative violation of Section 964(1)(A). An independent
violation of Section 964(1)(A), however, is not alleged or argued.
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We conclude that the LSC has committed prohibited practices by refusing
to bargain mandatory subjects of bargaining with respect to the school nurses
and by unilaterally terminating the nurses' participation in the Social Secur-
ity system.
I
It is first necessary to analyze the background of events preceeding the
LTA's bargaining request of December 5, 1979. The legal import of such events
determines the scope of the duty to bargain that existed at that time.
When the nurses involved herein were hired by the LSC, and therefore no
longer employed by the BHW (except for the four who still worked 5 hours per
week for the BHW), it was no longer completely clear which bargaining unit
they were in. An argument could have been made that they were still included
in the general bargaining unit represented by AFSCME, although the LSC until
then had not recognized AFSCME as a representative of school nurses prior to
this. An argument could also be made that they were included in the profes-
sional unit of LSC employees represented by the LTA. The unit coverage
question was appropriately resolved in a unit clarification proceeding,
however. When the unit clarification report issued on September 25, 1979,
it answered this question unequivocally, that is, that the nurses were in the
bargaining unit represented by the LTA.[fn]5 In his determination, the
hearing examiner determined (1) that the nurses "are and should be part of
the L.T.A. unit," and (2) that it was not necessary that the LTA unit
description be modified in order to accomplish this. Thus, although the
interpretation and application of the bargaining unit description is only one
of the considerations involved in a unit clarification, see, Teamsters
Local 48 and Town of Kittery, Unit Clarification Report (79-UC-08, June 5, 1979), the
hearing examiner determined that the existing unit description, contained in
the LTA contract, already covered the nurses since they were certified
professional employees of the LSC. The hearing officer nonetheless proceeded,
for the sake of certainty only, to amend the unit description by adding the
phrase "including nurses."[fn]6 The key to the decision, however, is the
determination that school nurses were in that bargaining unit. Such a
determination is one over which the legislature has assigned control in the
event of dispute to the Executive Director or his designee. See, 26 M.R.S.A.
966.
Because we agree with the hearing examiner's conclusion that the LTA
contract recognition clause as it exists includes these nurses, we conclude
that contract terms which apply to them cannot be opened up for renegotiation
during the life of the contract by one party alone. Said another way, both
parties are bound by the
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5. Even when appropriate bargaining units are determined ab initio by the
Executive Director or his designees, as opposed to determination by
voluntary agreement, it is possible for circumstances to arise where a
position could be claimed by different bargaining agents for different
units. The resolution of such claims is uniquely the province of the
Executive Director or his designee, with review provisions. See, 26
M.R.S.A. 968(4).
6. Unit descriptions, although usually included in collective bargaining
agreements, are essentially timeless and have a life of their own for the
purposes of collective bargaining without regard to the passing of collec-
tive bargaining agreements. This existence lasts from initiation by unit
determination or agreement until changed by unit clarification or agree-
ment.
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contract to those terms which apply to the nurses. In contrast, if a hearing
examiner were to determine that an existing unit description that was con-
tained in a contract did not apply to a group of employees then we would
assume that the remainder of the contract would also not apply even if the
group of employees were nonetheless added to the unit in the clarification
proceeding. Thus, inclusion in a unit does not automatically mean coverage
by an existing contract.
As always, a party is bound to bargain over mandatory subjects of bar-
gaining whenever demanded unless waived or agreed to in writing for a period
of not greater than three years. See 26 M.R.S.A. 965(1)(D). One type of
agreement is, of course, a provision in a collective bargaining agreement.
Thus, in this case, the LTA and the LSC have already agreed by contract to a
grievance procedure, a just cause for discipline provision, insurance protec-
tion, etc., which it appears are general provisions sensibly and reasonably
applicable to the new classification of school nurse. It follows that these
subject areas have been settled, that the provisions must be applied, and
that they cannot be reopened except by agreement.[fn]7
II.
Another type of agreement which can bar, for a time, the raising of a
subject for bargaining is a so-called zipper clause. The LSC urges here that
zipper provisions in the LTA contract preclude the raising of any and all
subjects of bargaining until this contract expires, on August 31, 1981.
A careful analysis of the provisions is necessary in order to make the
determination whether such a provision does constitute a clear and unmistak-
able waiver of the right to bargain. See, Cloverleaf Division of Adams Dairy
Co., 147 NLRB 1410, 1412 (1964). As usual, such waivers must be carefully
construed. See, e.g., The Bunker Hill Co., 208 NLRB 27, 85 LRRM 1264 (1973),
modified, 210 NLRB 343, 86 LRRM 1157 (1974).
Article XXX, (see Finding of Fact Par. 9) states that all matters which
were or might have been the subject of negotiations are resolved. We have
concluded above that some issues of general application such as a grievance
procedure, were bargained and would be applicable to any new class of
employee contemplated within the flexible language of the recognition clause:
"the entire group of certified professional employees." An issue is
presented, however, for example, with respect to the wages of school nurses.
There is no evidence that the wages of nurses were ever discussed. And we
conclude that the wages of nurses could not have been the subject of negotia-
tions because the LTA did not represent the nurses during the bargaining
which led to this contract. Thus, this clause is not a waiver of, or a bar
to, the LTA's right to bargain during the life of this contract for any
working conditions of school nurses.
The second provision referred to as a zipper, Article IA, see Finding of
Fact Par. 9, has even less reach than Article XXX and it also does not
constitute a waiver of the right to bargain under the same rationale.
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7. We would be prone to rule that any provision which could reasonably and
sensibly be applied would constitute an agreement in advance with respect
to new job classifications and thus the duty to bargain would be satisfied.
Of course, unique circumstances for such employee classifications might
make it not reasonable to apply certain provisions.
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Moreover, if a clause unambiguously waived bargaining rights with respect
to new classifications of employees which might be added to the unit in the
future, while not providing for wages or other conditions, we would be com-
pelled to find it contrary to the purposes of the Act as expressed in Section
961. It would contradict the notion of a bargaining agent's obligation to
represent all public employees within the unit, see 26 M.R.S.A. 967(2)
(last paragraph), and would violate Sections 964(1)(A) and (2)(A). We would
thus not consider it to be a waiver of such bargaining rights. Cf., Churchill
v. S.A.D. #49 Teachers Association, 380 A.2d 186, 193 (Me. 1977).
III.
The LSC also raises the issue of the failure of the LTA to serve a 120
day notice[fn]8 as referred to in 26 M.R.S.A. 965(1) (last para.), which
provides:
"Whenever wages, rates of pay or any other matter requiring
appropriation of money by any municipality are included as
a matter of collective bargaining conducted pursuant to this
chapter, it is the obligation of the bargaining agent to serve
written notice of request for collective bargaining on the
public employer at least 120 days before the conclusion of the
current fiscal operating budget."
If upheld, this defense would run to money matters, only a subset of the
subjects of bargaining. We concluded in parts I and II that a duty to bargain
arose when the LTA requested such with respect to the school nurses except
those matters which provisions of the existing contract already covered. The
LTA could properly have sought to bargain subjects which neither were covered
by the contract nor involved the appropriation of money from the existing
budget. See, Teamsters Local 48 v. Town of Falmouth, MLRB No. 79-10 (June 6,
1979). We therefore conclude that the LSC violated the duty to bargain with
the LTA under 26 M.R.S.A. 964(1)(E), because it completely refused to
bargain any subject.
Our decision must go further, however, because we do not believe that
the 120 day notice was intended to apply to situations such as this.
In the cases which have previously arisen under this section, the notice
has always pertained to an entire, pre-existing bargaining unit. See, e.g.,
Teamsters Local 48 v. Town of Falmouth, supra. In such a case we believe the
municipality is entitled to adequate notice of intent to bargain for money
matters. However, we cannot believe that the section was intended to apply
to these new employees who constitute a small[fn]9 accretion to an existing
bargaining unit. In this case the municipality or other public employer is
in control of when the employees are hired.
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8. The LTA correctly points out that this is a defense not raised in the
pleadings or in the pre-hearing conference memorandum and order. We will
consider the issue, however, because it is clear from the exhibits that
the LSC raised this issue when the LTA requested bargaining and because
the LTA has not been prejudiced in its ability to respond to the legal
argument. We would be sympathetic to a request to show further evidence
if this decision turned on the facts.
9. Whether the number of accreted emplovees is a factor which at some point
might require application of the 120 day notice is an issue we do not
address here since we find no justification to apply that provision in
this case.
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The bargaining agent should not be considered derelict in its "obligation" to
serve such notice when it is pursuing proper channels to solidify its right to
represent these employees, but when that right is not yet clear.
Moreover, in this case, the "contract bar" provision of the Act
prohibited the determination of a unit clarification issue until September 14,
1979, when an amendment to the Act became effective.[fn]10 At this point it
was already less than 120 days to the start of the next fiscal year. Thus,
one law prohibited the filing of the unit clarification until after it was
already too late, in the LSC's view, to comply with the provisions of another
law. Such a result of prohibiting collective bargaining would be repugnant
to the purpose of the Act to promote the improvement of labor relations by
providing for collective bargaining. 26 M.R.S.A. 961. Cf. In re
Decertification Election, Old Orchard Beach Police Department (Me. Labor Rels.
Bd. Dec. 16, 1974) at p. 3.
In summary, we do not believe that the legislature would have intended
the 120 day notice to apply to unit clarification situations as opposed to
collective bargaining demands regarding entire, pre-existing bargaining units. 11
IV.
We do not find that the first 10 day notice of December 5, 1979, was
dishonored. Attorney Taintor offered to meet within 10 days. And a meeting
did subsequently take place. This complies with Section 965(1)(B). The
second 10 day letter, dated April 17, 1980, was dishonored, however. We
therefore find in this instance a violation of Section 965(1)(B). We have
stated many times that a request for a meeting for collective bargaining
purposes should be honored. In the absence of clear evidence of abuse of
this provision, we will strictly enforce this section. See, e.g., East
Millinocket Teachers Association v. East Millinocket School Committee, MLRB
No. 79-24 (April 9, 1979) ("a party should therefore not lightly undertake
the decision to refuse to meet when requested by a 10 day letter").
V.
The LTA has also alleged six unilateral changes in the working conditions
of the nurses. If true, this would be a clear violation of the Act. See,
State of Maine (Bureau of Alcoholic Beverages) v. Maine Labor Relations Board,
413 A.2d 510, 515 (1980). Each of these changes must be viewed in light of
the above considerations regarding applicable terms of the LTA contract,
however.
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10. Section 967(2) (fourth para.), the contract bar provision, had been
interpreted by the Board to apply to unit clarification petitions. The
legislature amended the law, effective September 14, 1979, (L.D. 264) to
provide that the contract bar would not apply to matters of unit clari-
fication.
11. We do not reach the LTA's two arguments, (1) that a 120 day notice served
for the overall unit in advance of the current contract would suffice to
satisfy the notice issue with respect to the nurses and (2) that its unit
clarification petition would also suffice.
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1. The Maine State Retirement System
We conclude that a party does not have to bargain a change which is
required by state law. Here, the LSC claims, and the LTA does not dispute,
that Title 5 M.R.S.A. 1091(1), 1001(10), and 1001(25), combine to
require that the school nurses employed by the LSC must be covered under the
M.S.R.S. While we agree with the LSC's concession that it would have been
"better" to consult with the LTA regarding this change, it was no violation
of the Act for it to make a unilateral (and belated) change which was clearly
required by law. This is, of course, a different situation from the violation
found in the Bureau of Alcoholic Beverages case, supra, where the Law Court
held:
"that the State may not modify its prior practice of closing
state liquor stores on holidays without first negotiating
with the Union the consequences of that change upon the wages,
hours, and working conditions of the employees working in those
stores."
413 A.2d at 516 (emphasis added).
Such prior impact bargaining would not be required here, although it would
appear that the impact of this change and the delay in making it might have
been and may still be matters which the LTA has been intending to bargain
with the LSC.[fn]12
The cancellation of the District retirement program in effect for BHW
employees, also alleged as a unilateral change, is not attributable to the
LSC, however. While the assistant superintendent of schools may have notified
the nurses of the change of this program, he did not cancel it. Therefore no
claim is made against the LSC. In addition, since these nurses were no longer
employed by the BHW or covered under the AFSCME contract, we see no basis for
the BHW to continue their coverage.
2. Bi-Weekly Payroll
The LTA contract provides for a biweekly payroll. This contract pro-
vision is clearly one that would be applicable to professional employees who
might be represented by the LTA. We conclude that it reasonably and sensibly
should be applied to them and, therefore, that this condition of employment
is governed by the LTA contract and is, in effect, waived. It, therefore,
was no violation to pay the school nurses on a bi-weekly basis; it was a
contractual obligation.
It would have been a clear violation of the duty to bargain in good faith
if, as the LSC argued, the AFSCME contract were applicable. In such event
this would be an indefensible unilateral change.
3. Social Security
Citing 5 M.R.S.A. 1221, the LSC argues that the law also requires that
Social Security coverage be terminated for the school nurses because this
section requires cancellation for teachers and because 5 M.R.S.A. 1001(25)
defines teachers as including school nurses. This is an erroneous conclusion,
however, because the above definition of teachers is only applicable to
Chapter 101 of Title 5. The Social
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12. The LSC argues in its brief that this is a change which stems from the
U.C. report. To the contrary, the law was applicable when the LSC hired
school nurses.
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Security provisions are in Chapter 103 of Title 5. Thus, as we see it, while
5 M.R.S.A. 1221 precludes teachers under a state retirement plan from
coverage under Social Security, it does not preclude school nurses from such.
When the school nurses were hired by the LSC, they were provided Social
Security coverage. The LTA contract is silent with respect to pension or
retirement plans. We could under some circumstances find a waiver in this
area if school nurses and teachers were similarly situated with respect to
the Law. As indicated above, however, they are not. Nurses are permitted to
be covered under both systems, Social Security and M.S.R.S. Therefore, since
this is a working condition not settled by the LTA contract with respect to
school nurses, it is a working condition which could not be changed uni-
laterally. See, Bureau of Alcoholic Beverages, supra. We will accordingly
direct that the school nurses be made whole, if they desire such, for the
termination of Social Security participation.
4. Boston Mutual Life Insurance Coverage
The facts are uncontroverted that this change, to drop the coverage, was
never effectuated. Rather, a plan to change was announced but then rescinded
when the LTA complained. Thus, there is no violation.
We note that since the LTA contract has an insurance provision which
does not include life insurance, the LSC would have been justified, relying
on that provision, in not providing life insurance coverage once it became
clear in the U.C. report that the nurses were in the LTA bargaining unit and
covered by the existing unit description contained in the contract.[fn]13
5. Reduction in hours
It is not established on this record that the LSC had anything to do
with the reduction in hours by the BHW and we therefore dismiss this aspect
of the complaint against the LSC.
6. Health insurance
In this instance, the LSC simply applied the terms of the LTA contract
to the nurses. We conclude that this contract provision is reasonably and
sensibly applied to these nurses and therefore that the LTA contract settled
this working condition in advance. There was thus no duty to bargain this
subject, it having been waived for the life of this contract. It would appear
that the MTA health plan should have been in effect for the school nurses
from the time of the unit clarification report.
VI.
The LSC has argued that the LTA should be a substituted (in fact, an
additional)
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* Member Noddin does not join in this paragraph because it does not affect
the result and he considers it unnecessary. He adds, however, that having
undertaken to continue this benefit after the U.C. report, the employer
should not change it without first negotiating.
13. We see nothing unique about school nurses that would counter the notion
that the insurance provision of the LTA contract should reasonably and
sensibly be applied to them.
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party to the AFSCME contract with respect to those school nurses now employed
by the LSC. Some of these nurses were formerly represented by AFSCME. We
reject this notion and confirm that part 1, above, sets forth the proper
analysis of the change in employer and unit clarification events.
The cases which the LSC have cited each deal with a totally different
factual situation. For example, in Gale City Optical Co., 175 NLRB 1059
(1969), the National Board held that Union A had essentially just merged with
Union B and, therefore, the contract between the employer and Union A was
still in effect with respect to Union B. Under National Board doctrine, if
Union A had become defunct, a new Union B would not be bound by the Union A
contract. In this case the employees had dissolved Union A and affiliated
with Union B at the same meeting. This was a stratagem to terminate the
existing contract and bargain a new one. The National Board rejected the
ruse, however, and held that Union A had not become defunct in the normal
sense, but that it had in essence merged with Union B. In the case at hand,
the LTA and AFSCME each have their own contracts and the identity of these
unions is not in issue. As the result of a change in employers, it has been
properly determined that a group of school nurses now employed by the LSC,
some of whom were formerly employed by the BHW, are and should be in the
bargaining unit represented by the LTA.
Each of the other cases, as well, deals with some variation of a
certification of a new bargaining agent for an entire bargaining unit without
any change in employer and are equally inapposite.
In a related point, the LSC also raises the issue of whether this Board
can issue an order which would impair an existing valid contract without
violating the U.S. Constitution, although it does not amplify its theory
beyond this flat claim. Thus it believes that the nurses are still covered
under the AFSCME contract and that an order of this Board cannot change that.
This argument has many fatal flaws.
We believe that this issue was settled in the proper forum. As the
result of the hiring of school nurses by the LSC, the LTA was clearly entitled
to claim representation of the nurses under its unit description. AFSCME also
had an arguable claim. At the time of the unit clarification proceeding the
LSC had contracts with each union. The hearing examiner determined that, all
facts considered,[fn]14 the nurses were and should be in the LTA-represented
unit. The unit clarification report did not change or impair any contract.
In any event, collective bargaining is not necessarily a common law
right, see, Churchill v. S.A.D. #49 Teachers Association, 380 A.2d 186 (Me.
1977), but is provided for by, and subject to, the provisions of the Municipal
Public Employees Labor Relations Law, including its unit clarification
provisions.
The net result of the clarification proceeding was that the LSC was under
an obligation to bargain with the LTA over certain working conditions of the
nurses
____________________
14. Interpretation of existing unit descriptions which are mostly contained
in collective bargaining agreements and which usually provide flexibility
for changing employee complements is only one of many factors involved in
a unit clarification determination. See, e.g., Teamsters Local Union No.
48 and Town of Kittery, Unit Clarification Report (June 5, 1979).
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at least since the time of the unit clarification report. The working
conditions required to be bargained included at least wages and social
security coverage. They do not include working conditions already settled by
the existing contract which would reasonably and sensibly be applied to the
nurses. Such areas include the grievance provisions, health insurance,
frequency of pay, and perhaps others which have not been at issue in this
case. Stability of labor relations is fostered by the applicability of as
many generalized provisions as possible. Indeed, we can easily envision some
contracts which would leave nothing to be bargained.
We also would not look favorably upon an attempt at "unit shopping" under
the guise of unit clarification. We assume that such misuse of the Board
would be squelched at the hearing examiner level. Legitimate clarification
proceedings, such as the one involved in this rather unique case, however,
should always receive due treatment under the Act.
ORDER
Upon the foregoing findings of fact, discussion, and the entire record,
and pursuant to Section 968(5)(C) of the Municipal Public Employees Labor
Relations Law (Act), the Maine Labor Relations Board hereby orders that the
Respondent Lewiston School Committee, its members, agents, and successors,
shall:
1. Cease and desist from: (a) refusing to bargain collectively
with the Lewiston Teachers Association (LTA) by refusing to
negotiate wages, hours, and other working conditions of
school nurses not already settled in the existing collective
bargaining agreement; and (b) refusing to bargain collectively
with the LTA by refusing to meet within ten days after receipt
of a written notice requesting a meeting for collective bar-
gaining purposes.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act: (a) Upon request,
make the school nurses whole for the loss of participation
in the Social Security system, first by seeking retroactive
coverage as if the participation had been continuous, and
second, if that is not possible, by the payment directly to
the nurses of the amount that the Respondent would have con-
tributed to Social Security if the coverage had been con-
tinuous. (b) Notify the Executive Director in writing
within 30 days from receipt of this Order of what steps the
Respondent has taken to comply herewith. In the event that
the Association does not agree that the nurses have been made
whole, it should notify the Regional Director in writing within
45 days from receipt of this Order. In such event, the Regional
Director shall establish a procedure for the submission of facts
and argument to the Board for the purposes of a supplemental order
regarding this remedy.
____________________
*This may require contribution by the nurses as well.
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Dated at Augusta, Maine, this 11th day of August, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Gary F. Thorne
Alternate Chairman
/s/___________________________________
Don R. Zigenbein
Employer Representative
/s/___________________________________
Harold S. Noddin
Alternate Employee Representative
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