STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-12
Issued: March 11, 1981
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)
COUNCIL #74, AMERICAN FEDERATION OF )
STATE, COUNTY, AND MUNICIPAL EMPLOYEES, )
AFL-CIO (for the unit of Secretaries, )
Aides and Food Service Employees) )
)
Complainant, )
)
vs. ) DECISION AND ORDER
)
SCHOOL ADMINISTRATIVE DISTRICT NO. 1, )
and ANNALEE Z. ROSENBLATT, its Agent, )
)
Respondents. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on September 8, 1980 by Council 74 of the American Federation of
State, County, and Municipal Employees, AFL-CIO (Union). The Union alleges
in its complaint, as amended on October 6, 1980, that School Administrative
District No. 1 (District) and Annalee Z. Rosenblatt, its Agent (Agent) had
violated 26 M.R.S.A. 964(1)(A) and (E) by refusing to negotiate increases
in wages and benefits, by refusing to grant customary wage increases, and by
refusing to grant customary step increases to the employees in the Union's
above-captioned bargaining unit. The Respondents filed an answer and a motion
to dismiss the complaint on September 24, 1980, contending that the Union's
failure to give the requisite 120-day notice of intent to bargain money, rates
of pay and other matters requiring the appropriation of money acts as a bar
to the Union's claim of a prohibited practice, in connection with the
District's and the Agent's refusal to bargain the same. The Respondents
further aver that they maintained the status quo relative to wages and other
conditions of employment and, therefore, have committed no violation of the
aforementioned statutory subsections.
Alternate Chairman Donald W. Webber held a pre-hearing conference on
October 6, 1980. Present for the Complainant was H. Ross Ferrell, Jr. and
present for the Respondents was Annalee Z. Rosenblatt. Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, dated October 13,
1980, the contents of which are incorporated herein by reference. The parties
having agreed that the
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allegations of the complaint and answer as amended may be taken as true and
that there remain no issues of fact requiring hearing, all issues of law were
argued in appropriate briefs which were duly filed with the Board.
JURISDICTION
The Union is a public employee organization and bargaining agent for a
unit of secretaries, aides, and food service employees of the District within
the meaning of 26 M.R.S.A. 968(5)(B) and 962(2). The District and
Mrs. Rosenblatt are public employers within the meaning of 26 M.R.S.A.
962(F). The Board accordingly has jurisdiction to issue this decision and
order pursuant to 26 M.R.S.A. 968(5)(A) through (C). The jurisdiction of
the Superior Court lies in 26 M.R.S.A. 968(5)(F).
FINDINGS OF FACT
By agreement and stipulation of the parties, we find the following:
1. Council #74, AFSCME, is the bargaining agent for a unit of Secre-
taries, Aides, and Food Service Employees of School Administrative District
No. 1.
2. The complainant met in a bargaining session with the negotiator for
the District on September 2, 1980.
3. In the bargaining session on September 2, 1980, the agent for the
District, Annalee Z. Rosenblatt, took the following positions:
a. The District will not negotiate wages, and other matters re-
quiring appropriation of money because they did not receive
a notice 120 days in advance of the end of the District's
fiscal year.
b. The District will not grant the step increase given to those
employees in step plans which are regularly given on July I
(or return to work at the beginning of the school year).
c. The District will not grant raises to those same employees
for whom the District refuses to negotiate raises because it
is not obligated to grant employees a raise.
4. The District granted the unorganized employees pay raises effective
July 1, 1980, but did not grant step increases on the customary date to the
employees described in paragraph 1 hereof.
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5. The District's fiscal year began July 1, 1980 and ends June 30, 1981
of the year in question.
6. The bargaining agent was certified on April 14, 1980.
7. The notice of intent to bargain money, rates of pay and other matters
requiring the appropriation of money from the Union was dated May 19, 1980 and
received by the District May 20, 1980, 43 days prior to the end of the
District's fiscal year.
8. The District has not increased or decreased wages or other monetary
benefits or changed other terms and conditions of employment since the
certification of the bargaining agent.
9. The step increases for the aides and clerical employees are longevity
increases based on years of service.
10. All unorganized employees, including supervisors but excluding school
administrators, received an eight per cent increase in pay effective July 1,
1980.
11. School administrators received pay increases ranging from zero to
nine and one-half percent. The increase in budget cost was an average of six
and one-half percent. The school administrators'pay increase was based
entirely upon merit.
12. Teachers received an increase of 4.54% on their average salary
through collective bargaining.
13. Bus drivers and custodians are still negotiating for a new contract.
DISCUSSION
I. Notice to Bargain Money Issues
The Union argues that previously adjudicated prohibited practices by the
District, which contaminated the election of September 7, 1979. constitute
waiver on the part of the District from asserting the notice requirement of
26 M.R.S.A. 965(1)(E). We have previously held, in Teamsters Local 48 v.
Town of Falmouth, MLRB No. 79-10, at 4 (1979), that the 120-day notice rule
applies to the negotiations for both initial and successor collective bargain-
ing agreements. We further stated that, although there may sometimes be miti-
gating circumstances which would excuse the failure to file a timely 120-day
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notice, "bargaining agents and public employers must be careful to comply
strictly with the plain language of Section 965(1)." (Citations omitted).
Ibid, at 5.
Although both parties agree that the Act was not complied with, the Union
maintains that compliance was impossible because prior prohibited practices
by the District caused delay in the Union's certification. We meant the miti-
gating circumstances exception outlined in Falmouth to apply only where the
situation is truly extraordinary. The facts before us do not constitute such
circumstances. We hold that the Union was bound to strict compliance with the
120-day notice requirement of the Statute. If, under these facts, the Union
had given the employer a conditional notice of its intent to bargain cost
items, contemporaneous with its filing of the Prohibited Practices Complaint
in our case number 80-04, or if the Union had given its notice to bargain cost
issues as timely as possible, after certification as the bargaining agent and
without a five-week delay; the equities in this context may have been
different. We conclude that the District was not, therefore, in violation of
26 M.R.S.A. 964(1)(E), when it refused to bargain wages and other cost
items, and we grant Respondents' Motion to Dismiss, as it relates to the
alleged violation of said Act in the above context.
II. Interference With Employees' Exercise of Rights Guaranteed under 26
M.R.S.A. 963.
We have, several times, held that it is a per se violation of the duty to
bargain in good faith for an employer to make a unilateral change in a manda-
tory subject of bargaining during the life of a collective bargaining
relationship. See, Easton Teachers Association v. Easton School Committee,
MLRB No. 79-14 (1979), Maine State Employees Association v. State of Maine,
MLRB No. 78-23 (1978). Both parties have tacitly agreed that wage and step
increases are mandatory subjects of bargaining and both have argued the
relevant issues in connection therewith. To prevail, the Union must establish
that the salary increases sought are a continuation of the pre-certification
status quo, since there was no collective bargaining agreement between the
Union and the District on July 1, 1980.
The Union argues that the District is in violation of 26 M.R.S.A.
964(1)(A) because the District refused to continue its customary and regular
practice of granting annual wage and step increases to the employees in the
bargaining
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unit. The Union bases its position upon two facts: (1) wage and step
increases were, prior to the certification of the Union as the bargaining
agent, customarily given to the employees, when they returned to work each
year after summer vacation and (2) that all unorganized employees, including
supervisors but excluding school administrators, received an eight percent
increase in pay effective July 1, 1980. The former was established and
reported as paragraph 4 of our findings of fact in Council 74, A.F.S.C.M.E. v.
S.A.D. No. 1, MLRB No. 80-04 (1980). The latter is contained in paragraph 1
in the Stipulations in Addition to Pre-Hearing Conference Memorandum and
Order, which was filed by the parties on October 24, 1980. The Union con-
cludes that the wage and step increases are part of an unnegotiated pay plan
and, therefore, both should be included in any continuation of past practice
and of the pre-certification status quo.
The District argues that those employees, who did receive salary
increases, effective July 1, 1980 did so either through collective bargaining
agreements or through a continuation of the status quo. The District main-
tains that membership in a labor organization was not a criterion used to
determine which employees would receive salary increases. The District avers
that there is no evidence before the Board as to the nature of the status quo
and from which the Board could find that the District has abrogated the status
quo. We disagree. In Council 74, AFSCME, supra, footnote 2, at 5, we found
that "salary increases granted by the School District . . . are regularly
granted every year when the employees returned to work after summer vacation."
Furthermore, the District granted an eight percent salary increase, effective
July 1, 1980, to all of its unorganized employees, including supervisors but
excluding school administrators, and withheld the same from the employees in
the Union's bargaining unit. Our decision must, therefore, turn on which
legal standard of the status quo, static or dynamic, should be applied in this
case.
The District suggests that it was maintaining the status quo relationship
with the bargaining unit's employees by not granting said employees wage and
step increases. Easton Teachers Association, supra, is cited by the District
as supportive of its position. We have, however, held that Easton is not
dispositive of this issue in cases where the parties are negotiating their
initial collective bargaining agreement. In Teamsters Local 48 v. University
of Maine, MLRB No. 79-08, at 5 (1979), we stated:
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"In Easton we concluded that, upon expiration of a contract,
the status quo should be maintained as if the existing conditions
were frozen at the time of contract expiration rather than to give
effect to a 'built-in wage escalator.' In short, we adopted a
static view of the status quo for the post-contract period. We
therefore directed that actual wage levels be frozen at the time of
contract expiration.
While the merit increase policy under consideration here operates
as a wage escalator, we conclude that a dynamic view of the status quo
should be used in the period before the initial contract. Such a re-
view results in the conclusion that the termination of the merit in-
crease policy after bargaining agent certification constitutes an
impermissible change in the status quo regarding wages and working
conditions and thus a prohibited practice."
Although Teamsters Local 48 was decided under 26 M.R.S.A. 1027(1)(E),
we hold that the same policy considerations, underlying the decision therein,
apply to the within case and mandate our application of the dynamic view of
the status quo herein. M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No.
43 Board of Directors, MLRB No. 79-39 (1979), the other case cited by the
District, is also a renegotiation case and is likewise inapposite in the
situation now before us.
In Council 74, AFSCME v. S.A.D. No. 1, supra, we concluded that the
District had threatened the employees with a loss of existing benefits, if
they opted for unionization. This threat was held to be a serious violation
of 26 M.R.S.A. 964(1)(A). We are now faced with a situation, involving the
same District and the same Union, where the status quo, with regard to the
granting of salary and step increases, was adhered to in the case of all un-
organized employees and was abrogated in the case of the employees included in
the Union's bargaining unit. We conclude that the withholding of salary and
step increases by the District and from the employees in the Union's bargain-
ing unit is a violation of 26 M.R.S.A. 964(1)(A). We order a remedy whereby
employees are restored to the status quo prior to the prohibited practice.
Although we had no problem in holding that the step increase plan was a
wage and working condition because of its continuation over the past few years
and because we were provided with written documentation of the nature thereof;
a somewhat different situation exists in regard to the consideration of wage
increases. There is evidence before us that said salary increases customarily
and regularly occurred each year, however, there is no evidence as to the size
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of each annual increase and as to whether the percentage of increase varied
from year to year or remained constant. We have found that all unorganized
employees received an eight percent wage increase, effective July 1, 1980,
and that the employees included in the bargaining unit received no increase.
The District has argued, as noted, supra at page 5, that those employees who
received wage increases, effective July 1, 1980, did so either through
operation of collective bargaining agreements or through continuation of the
status quo. The unorganized employees, therefore, received their eight
percent salary increase through continuation of the status quo, since they
had no collective bargaining agreement with the District, as of July 1, 1980.
We conclude, as was argued by Respondents at page 7 of their Brief, that the
sole reason that the eight percent wage increase was not granted to the
employees in the Union's bargaining unit was that they had become unionized,
since the last customary and regular wage increase was granted on July 1,
1979. This rationale for distinguishing between unionized and unorganized
employees is patently impermissible. We, therefore, order a remedy whereby
the employees are made whole, as if there had been no prohibited practice.
III. Respondents' Motion to Dismiss
For the reasons stated in section I of the above discussion, the
Respondents' Motion to Dismiss is granted as to the allegations contained in
paragraph 6 of the Complaint. The balance of the Respondents said Motion is
denied.
ORDER
On the basis of the foregoing findings of fact and pursuant to the powers
granted to the Maine Labor Relations Board by the Municipal Public Employees
Labor Relations Act (Ac-t), 26 M.R,S.A. 968,
1. That the complaint regarding-the District's refusal to bargain
wages and other cost issues is dismissed.
2. That Respondents School Administrative District No. 1 and Anna-
lee Z. Rosenblatt, its agent, and their members, agents, succes-
sors or assigns shall:
(a) cease and desist from making unilateral changes
in wages, hours, working conditions or grievance
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arbitration without first negotiating such changes
with the complainant, particularly with respect to
wage and step increase plans; and
(b) Take the affirmative action designed to effectuate the
policies of the Act of making whole the public employee
members of the secretaries, aides, and food service em-
ployees unit for the monetary loss they have suffered as
a result of the unilateral termination of the wage and
step increase plans on July 1, 1980, by paying them the
wage increase of eight percent and the appropriate step
increase they would have received, retroactive to July 1,
1980, if the policy had been continued plus legal in-
terest on all arrearages until the date of payment of the
said arrearages. The past policy, as to annual wage and
step increases, should be reinstated and remain in force
until the execution of a new contract, decertification of
the bargaining agent, or to the point of bona fide impasse,
whichever occurs first. In the event of impasse, respond-
ents have the option of instituting their best offer.
(c) To notify the Executive Director, within 20 days, of what
steps have been taken to comply with this Order.
Dated at Augusta, Maine, this 11th day of March, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward R Keith
Chairman
/s/____________________________________
Don Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)
(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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