STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-41
Issued: July 23, 1981
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)
COUNCIL 74, AMERICAN FEDERATION )
OF STATE, COUNTY & MUNICIPAL )
EMPLOYEES, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
ELLSWORTH SCHOOL COMMITTEE )
and SUPERINTENDENT OF SCHOOLS )
DALE HIGGINS, )
)
Respondents. )
__________________________________)
This is a prohibited practices case, filed on February 23, 1981 pursuant
to 26 M.R.S.A. 968(5)(B) by Council 74 of the American Federation of State,
County and Municipal Employees, AFL-CIO (Council 74). Council 74 alleges in
its complaint that the Ellsworth School Committee and Superintendent of
Schools Dale Higgins (School Committee) violated 26 M.R.S.A. 964(1)(E) when
it 1) unilaterally stopped paying the full cost of Blue Cross/Blue Shield
coverage for its bus drivers, 2) refused to bargain about the issue of cause
for discipline and discharge of employees and 3) refused to bargain about 9
other mandatory subjects for collective bargaining. The School Committee
filed a response to the complaint on March 2, 1981, denying that it had
violated any provision of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. 961, et seq. (Act).
A pre-hearing conference on the case was held on March 20, 1981, Chairman
Edward H. Keith presiding. As a result of this pre-hearing conference, Chair-
man Keith issued on March 25, 1981 a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.
The case was heard on March 30, 1981, Chairman Edward H. Keith presiding,
with Employer Representative Don R. Ziegenbein and Alternate Employee Repre-
sentative Harold S. Noddin. Council 74 was represented by Mary Morse and
H. Ross Ferrell, Jr.,
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and the School Committee by Dale Higgins and James E. Patterson, Esq. The
parties were given full opportunity to examine and cross-examine witnesses,
introduce evidence and make argument. Both parties filed post-hearing briefs
which have been considered by the Board.
JURISDICTION
Council 74 is the bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for a bargaining unit of bus drivers employed by the School
Committee. The Ellsworth School Committee and Superintendent of Schools Dale
Higgins are public employers as defined in 26 M.R.S.A. 962(7). The juris-
diction of the Maine Labor Relations Board to hear this case and render a
decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1) Council 74 was elected the bargaining agent for the School
Committee's bus drivers in the spring of 1980. For the 1979-180 school year,
the bus drivers chose either "D" or "E" level Blue Cross/Blue Shield coverage,
and the School Committee, as it had done for the past several years, paid the
full cost of the coverage for each driver. At the beginning of the 1980-'81
school year, only level "E" coverage was available for the bus drivers, and
the cost of the health insurance had risen. The School Committee continued to
pay the same dollar amount for health insurance as it paid in 1979-'80 but,
because the cost had risen, its payments did not cover the full cost of the
insurance. The bus drivers were required to pay the additional insurance
costs, which resulted in reducing their take-home pay. The School Committee
did not notify or bargain with Council 74 prior to discontinuing its practice
of paying the full cost of health insurance.
2) Council 74 submitted its proposals for the first collective bargain-
ing agreement for the bus drivers in September, 1980. Included in the
proposals was a provision proposing that the School Committee pay the full
cost of Blue Cross/Blue Shield level "E" insurance. Also included was a
proposal that a driver would be disciplined only for failing to fulfill his/
her responsibilities as an employee, and suspended or discharged only after
a hearing to establish just cause for suspension or discharge.
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3) The School Committee rejected all of the union's proposals in its
responses and counter-proposals submitted to Council 74 in November, 1980.
Some of Council 74's proposals were rejected on the ground that they did not
involve mandatory subjects of bargaining, and the School Committee made
counter-proposals to the remaining rejected proposals. As for the union's
discharge and discipline proposal, the School Committee stated: "Discipline
& Discharge is not a mandatory subject for collective bargaining. The Board
chooses not to negotiate it." Among the other proposals about which the
School Committee refused to bargain were those dealing with schedules,
lockouts, bulletin boards, union activities, union visits, uniforms, bargain-
ing unit work, severance pay, and a contract savings clause.
4) In December, 1980, the School Committee submitted a counter-proposal
to Council 74's discipline and discharge proposal. The counter-proposal
states in part:
"The Board and Union agree that drivers, who have been continuously
employed for two years, shall be terminated for cause. Cause shall
include but not be limited to:
". . . personal behavior which shocks the conscience of the com-
munity, . . . personal behavior which is inconsistent with the values
of the majority of Ellsworth citizens . . .
"It is understood between the parties that this article is not
subject to the grievance procedure."
5) The parties commenced bargaining over the School Committee's
counter-proposals. Council 74 has agreed to some of the School Committee's
counter-proposals, including parts of the discipline and discharge counter-
proposal. The Superintendent informed Council 74 during negotiations that
the type of personel behavior which would be unacceptable under the School
Committee's discipline and discharge proposal would depend on what the School
Committee thought appropriate. The School Committee has agreed to little if
anything in Council 74's proposals.
6) The language of the proposals which the School Committee refuses to
negotiate is as follows:
SCHEDULES
Work Week
The work week shall consist of five consecutive 8-hour days, Monday to
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Friday inclusive.
Work Schedule
Work schedules showing the employees shifts, work days, and hours shall
be posted on all department bulletin boards at all times.
Except for emergency situations, work schedules shall not be changed
unless the changes are mutually agreed upon by the Union and the Employer.
Establish meal hours during extra-curricular runs.
LOCKOUTS
Lockouts
No lockout of employees shall be instituted by the Employer during the
term of this agreement.
GENERAL PROVISIONS
Union Bulletin Boards
The Employer agrees to furnish and maintain suitable bulletin boards in
conveneint places in each work area to be used by the Union.
The Union shall limit its posting of notices and bulletins to such bulle-
tin boards.
Union Activities on Employer's Time and Promises
The Employer agrees that during working hours, on the Employer's premises
and without loss of pay, Union representatives shall be allowed to:
Collect Union dues, initiation fees, and assessments (if these funds
are not collected through payroll deductions);
Post Union notices;
Distribute Union literature;
Solicit Union membership during other employee's non-working time;
Attend negotiation meetings;
Transmit communications, authorized by the local Union or its officers,
to the Employer or his representative;
Consult with the Employer, his representative, Local Union officers, or
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other Union representatives concerning the enforcement of any
provisions of this Agreement.
Visits by Union Representatives
The Employer agrees that accredited representatives of the American
Federation of State, County, and Municipal Employees, whether local Union
representatives, district council representatives or International representa-
tives, shall have full and free access to the premises of the Employer at any
time during working hours to conduct Union business.
Uniforms and Protective Clothing
If any employee is required to wear a uniform, protective clothing, or
any type of protective devise as a condition of employment, such uniform,
protective clothing, or protective device shall be furnished to the employee
by the Employer.
The Department shall provide four (4) uniforms consisting of four (4)
short sleeve shirts, four (4) long sleeve shirts, and four (4) trousers.
The Department shall replace these on an as needed basis.
NON BARGAINING UNIT EMPLOYEES
The Employer shall not assign any bargaining unit work to non-bargaining
unit employees except in case of emergency.
SEVERANCE PAY
The Employer shall pay each employee one weeks severance pay for each
year of employment at the time of his/her separation of employment.
SEPARABILITY AND SAVINGS CLAUSE
If any Article or Section of this contract, or of any riders thereto,
should be held invalid by operation of law, or by any tribunal of competent
jurisdiction, or if compliance with or enforcement of any Article or Section
should be restrained by such tribunal pending a final determination as to its
validity, the remainder of this contract and of any rider thereof or the
application of such Article or Section to persons or circumstances other than
those as to which it has been invalid or as to which compliance with or
enforcement of has been restrained, shall
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not be affected thereby.
In the event that any Article or Section is held invalid or enforcement
of or compliance with which has been restrained, as above set forth, the
parties affected thereby shall enter into immediate collective bargaining
negotiations upon the request of the Union for the purpose of arriving at a
mutually satisfactory replacement for such Article or Section during the
period of invalidity or restraint. If the parties do not agree on a mutually
satisfactory replacement, either party shall be permitted all legal or
economic recourse in support of its demands, notwithstanding any provisions
in this contract to the contrary.
DISCUSSION
At issue is the question whether the School Committee violated Section
964(1)(E) by unilaterally changing its practice of paying the full cost of the
bus drivers' health insurance; by refusing to bargain about the issue of cause
for discipline and discharge; and by refusing to bargain about nine other
Council 74's proposals.[fn]1 We find that the School Committee violated its
duty to bargain by unilaterally changing its health insurance payments
practice and by refusing to negotiate about a number of mandatory subjects of
bargaining. We order remedies necessary to effectuate the policies of the
Act.[fn] 2
1. The unilateral change in health insurance payments. The School
Committee committed a per se violation of Section 964(1)(E) when at the
beginning of the 1980-'81 school year it stopped paying the full cost of the
drivers' health
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1. Section 964(1)(E) states that public employers are prohibited from
"Refusing to bargain collectively with the bargaining agent of its
employees as required by Section 965." Section 965(1)(C) provides that
"collective bargaining" means the mutual obligation of the public
employer and the bargaining agent
"To confer and negotiate in good faith with respect to wages,
hours, working conditions and contract grievance arbitration
except that by such obligation neither party shall be com-
pelled to agree to a proposal or be required to make a con-
cession and except that public employers of teachers shall
meet and consult but not negotiate with respect to educational
policies for the purpose of this paragraph, educational policies
shall not include wages, hours, working conditions or contract
grievance arbitration."
2. The School Committee's contention in its brief that the prohibited
practices complaint is "insufficient on its face" is meritless; the
complaint plainly complies fully with Rule 4.03 of our Rules and
Procedures.
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insurance. The practice for the past several years had been that the School
Committee paid the full cost of the insurance. In 1980, the cost of health
insurance for the 1980-'81 school year increased. The School Committee did
not pay the additional cost, but instead continued paying the same dollar
amounts as it paid during the 1979-'80 school year, thereby forcing the bus
drivers to make up the difference. Council 74 was elected the bus drivers'
bargaining agent in the spring of 1980, but the School Committee did not
notify or bargain with Council 74 before it stopped paying the full costs of
the insurance. Negotiations between Council 74 and the School Committee began
in September, 1980, and one of Council 74's proposals was that the School
Committee pay the full cost of the bus drivers' health insurance.
The law is well-settled 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
mandatory subject of bargaining during the life of a collective bargaining
relationship. State v. Maine Labor Relations Board, 413 A.2d. 510, 515 (Me.
1980); NLRB v. Katz, 369 U.S. 736, 742-743, 82 S. Ct. 1107, 8 L.Ed2d 230
(1962). The rationale for this rule is that a unilateral change in a
mandatory subject undermines the bargaining process established by the Act
"much as does a flat refusal [to bargain]." NLRB v. Katz, 369 U.S. at 743.
The mandatory subjects about which the School District is required to bargain
are those issues pertaining to "wages, hours, working conditions and contract
grievance arbitration." 26 M.R.S.A. 965(1)(C). The payment of insurance
premiums is integrally related to "wages, hours and working conditions," and
therefore is a mandatory subject of bargaining. See, e.g., Oil, Chemical and
Atomic Workers International Union v. NLRB, 547 F.2d 575, 582 (D.C. Cir.
1976). Once the bus drivers selected Council 74 as their bargaining agent,
the School Committee could not lawfully make any change in the payment of
health insurance premiums without first notifying and bargaining with Council
74.
The School Committee urges that no change occurred in the payment of
insurance premiums because it continued to pay the same dollar amount for
insurance as it paid during the 1979-'80 school year. This argument is not
persuasive because it ignores the fact that the practice had been for the
School Committee to pay 100% of the costs of the bus drivers' health
insurance. The benefit provided by the School Committee thus was, not that it
would pay a certain dollar amount regardless of the cost of the insurance,
but that it would pay the full cost of the insurance. We have held several
times that during the period prior to negotia-
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tion of the initial contract the employer must pay any increases in costs of
benefits which were provided prior to certification of the union. See, e.g.,
Council 74, AFSCME v. SAD #1, MLRB No. 81-12 (March 11, 1981); Teamsters Local
48 v. University of Maine, MLRB No. 79-08 (June 29, 1979). Because the School
Committee's practice was to pay the full cost of the health insurance, it was
obligated to pay the increased costs for the 1980-'81 school year until such
time as the policy of paying full costs was changed through collective
bargaining. The School Committee's failure to notify and bargain with Council
74 before it stopped paying the full cost of the bus drivers' health insurance
premiums constituted a poor se violation of Section 964(1)(E). State v. Maine
Labor Relations Board, supra; NLRB v. Katz, supra.[fn]3
Upon finding that a party has engaged in a prohibited practice, we are
instructed by Section 968(5)(C) to order the 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 changing its practice of paying the
full costs of health insurance coverage for the bus drivers and from changing
any aspect of the bus drivers' health insurance coverage without first notify-
ing and, if requested, bargaining with Council 74 about the proposed change.
A properly designed remedial order also seeks "a restoration of the
situation, as nearly as possible, to that which would have obtained" but for
the prohibited practice. Caribou School Department v. Caribou Teachers Asso-
ciation, 402 A.2d 1279, 1284 (Me. 1979). As a result of the School
Committee's prohibited practice, the bus drivers were required to pay the
additional costs of the health insurance coverage for the 1980-'81 school
year. In order to rectify the harm done to the bus drivers, we will order the
School Committee to take the affirmative action of reimbursing each bus driver
the amount the driver paid for health insurance coverage under the School
Committee's health insurance plan for the 1980-81 school year. Interest on
the amount due each bus driver is to be
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3. The School Committee's argument that Council 74 has no "standing" to
complain about the unilateral change because it did not submit a 120-day
notice pursuant to Section 965(1) is specious. First, there is not a
shred of evidence in the record showing whether Council 74 did or did not
submit a 120-day notice pursuant to Section 965(1). Second, the 120-day
notice provision is applicable only to money matters included in nego-
tiations, and has no relevance when there has been an unlawful change in
wages, hours or working conditions.
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paid at a per annum rate of 12%, computed on a quarterly basis in accordance
with the formula set forth in Council 74, AFSCME v. City of Bangor, MLRB No.
80-41 at 11-12 (Sept. 24, 1980). This remedy is necessary to effectuate the
policies of the Act.
2. Negotiations over the discipline and discharge issue. We conclude
that the School Committee had not, at the time of the hearing of this case,
violated its duty to bargain with regard to the cause for discipline and
discharge issue. Council 74 proposed in its initial proposals in September,
1980 that a driver could be disciplined only for failing to fulfill his/her
responsibilities as an employee, and suspended or discharged only after a
hearing to establish just cause for suspension or discharge. In its counter-
proposal submitted in November, 1980, the School Committee refused to bargain
over the issue of discipline and discharge of employees, stating that
discipline and discharge is not a mandatory subject of collective bargaining.
This position was patently erroneous, as the Superintendent knew full
well. In Union River Valley Teachers Association v. Trenton School Committee,
MLRB Nos. 80-28, et al at 5. (May 30, 1980), a case in which Superintendent
Higgins represented the School Committee, we held that the issue of just cause
for discipline or nonrenewal is a mandatory subject of bargaining under
Section 965(1)(C).[fn]4 Had the School Committee maintained its position of
refusing to bargain about the grounds for discipline and discharge, we would
find it in per se violation of Section 964(1)(E). See Union River Valley
Teachers Association, supra.
In December, 1980, however, the School Committee submitted a counter-
proposal for a discipline and discharge provision. The proposal states that
drivers who have been continuously employed for 2 years shall be terminated
for cause. "Cause" is defined in the proposal to include any one of a number
of actions and indiscretions, including "personal behavior which shocks the
conscience of the community" or "personal behavior which is inconsistent with
the values of the majority of Ellsworth citizens." The proposal also provides
that the discipline
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4. The School Committee's contention in its brief that it thought the issue
of "just cause" was mandatorily negotiable only for teachers is not
credible, because in Union River Superintendent Higgins argued that while
"just cause" was negotiable for all other public employees, it was not
negotiable for teachers because of the "educational policy" exception in
Section 965(1)(C). Even a casual reading of Union River would reveal that
"just cause" is a mandatory subject of bargaining for all public employees,
regardless of occupation.
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and discharge provision would not be subject to the contract's grievance pro-
cedure. The parties commenced bargaining over the School Committee's counter-
proposal, and had at the time of the hearing reached agreement on some parts
of the counter-proposal. During negotiations over the counter-proposal, the
Superintendent informed Council 74 that the type of behavior which would be
unacceptable under the counter-proposal would depend on whatever the School
Committee thought appropriate.
Council 74 contends in its brief that some portions of the School
Committee's counter-proposal have nothing to do with proper cause for
discipline or discharge, and therefore is evidence of bad faith surface
bargaining. We agree that certain parts of the counter-proposal bring into
serious question the School Committee's good faith intention to negotiate
about cause for discipline and discharge, particularly in light of its initial
refusal to negotiate about the issue. Insisting that "cause" for discharge
and discipline can be any behavior which the School Committee thinks is
unacceptable, and that the School Committee's decision would not be subject to
the grievance procedure, is tantamount to a flat refusal to bargain about
cause for discipline or discharge. Moreover, making and rigidly adhering to
sham proposals is of course evidence of bad faith bargaining. See, e.g.,
Sanford Fire Fighters Association v. Sanford Fire Commission, MLRB No. 79-62
(Dec. 5, 1979).[fn]5 Were the School Committee to insist to impasse that all
aspects of its discipline and discharge proposal be accepted, we would find
it in violation of Section 964(1)(E).
The record shows, however, that at least at the time of the hearing the
parties were still negotiating over the discipline and discharge proposal.
It is con-
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5. We disagree sharply with the School Committee's contention that the
record contains no evidence of bad faith bargaining on the part of the
School Committee. In addition to the sham aspects of the discipline and
discharge counter-proposal, the record contains the following evidence of
bad faith bargaining: 1) the School Committee initially rejected all of
the union's proposals, 2) subsequently Council 74 agreed to some of the
School Committee's counter-proposals, thereby evincing a willingness to
bargain, while the School Committee continued to refuse to agree to any
union proposals, 3) the School Committee unilaterally changed its practice
of paying the full costs of health insurance, and 4) as discussed infra,
the School Committee unlawfully refused to bargain about 8 mandatory
subjects of collective bargaining. See Sanford Highway Unit v. Town of
Sanford, MLRB No. 79-50 (April 5, 1979), affirmed 411 A.2d 1010, 1015
(Me. 1980). We make no finding of bad faith bargaining at the present
time, however, because Council 74 has neither alleged nor litigated the
issue in this case.
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ceivable that in the process of bargaining the School Committee will drop
the sham aspects of its proposal and the parties will reach agreement on a
discipline and discharge provision. Since the evidence does not show that the
School Committee insisted to impasse that all aspects of its counter-proposal
be accepted, and since Council 74 has not alleged or fully litigated a bad
faith bargaining case, we cannot conclude at the present time that the School
Committee violated Section 964(1)(E) by failing to negotiate in good faith
about cause for discipline and discharge. We hereby dismiss Council 74's
allegation that the School Committee violated its duty to bargain about the
discipline and discharge issue.
3. The refusal to bargain about nine issues. In its November, 1980
counter-proposals, the School Committee refused to bargain about union
proposals involving the issues of work schedules, lockouts, bulletin boards,
union activities, union visits, uniforms, bargaining unit work, severance pay,
and a contract savings clause. The language of each of these proposals is
stated in Finding of Fact No. 6 in this decision and order. The School
Committee asserts in its brief that it was not obligated to bargain about
these issues because this Board has not yet ruled on the negotiability of the
issues.
This argument is fallacious because Section 965(1)(C) of the Act estab- 6
lishes in the first instance whether a particular issue is a mandatory
subject.[fn]6 A party questioning the negotiability of any proposal is
required to look to Section 965(1)(C) and decide whether the proposal is
sufficiently related to "wages, hours, working conditions and contract
grievance arbitration" to be a mandatory subject. Refusal to negotiate about
an issue which is a mandatory subject of bargaining is a per se violation of
Section 964(1)(E). State v. Maine Labor Relations Board, supra at 514-515.
To determine whether the School Committee's refusal to bargain about Council
74's proposals violated Section 964(1)(E), we must first determine whether
the proposals involve mandatory subjects of bargaining.
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6. The argument also is factually erroneous because, as discussed infra,
this Board has in fact ruled on the negotiability of several of the dis-
puted issues. Equally erroneous is the School Committee's apparent belief
that federal precedent is entirely irrelevant in determining the negotia-
bility of a subject under Maine law. The Law Court has stated it finds
federal precedent "persuasive" in applying the terms of Maine's labor
relations laws. State v. Maine Labor Relations Board, supra at 514.
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A. The work schedules proposal. This proposal proposes that the work
week shall consist of five consecutive 8-hour days, Monday to Friday; that
work schedules showing shifts, work days and hours shall be posted; that work
schedules shall not be changed, except in emergencies, unless the parties
mutually agree upon the change; and that meal hours during extra-curricular
runs shall be established. We have held in a number of cases that issues
relating to work schedules are mandatory subjects. See, e.g., Teamsters Local
48 v. Town of Jay, MLRB No. 80-08 (Jan. 9, 1980); MSEA v. State, MLRB No.
79-43 (Dec. 6, 1979).
The issues raised by Council 74's proposal - involving the number of
hours of work per week, the days of work, notice to the employees of the work
schedule, changes in the work schedule, and meal time during extra-curricular
bus runs - plainly are significantly and materially related to the "hours and
working conditions" about which the School Committee is obligated to bargain.
Contrary to the School Committee's assertions, the proposal would not govern,
and indeed has nothing to do with, the school calendar, "bus schedules," or
the length of the school day. While the School Committee is of course not
required to agree to the proposal, it is required by Section 965(1)(C) to
bargain about the proposal. Its refusal to do so is a per se violation of
Section 964(1)(E).
B. The lockout proposal. The lockout proposal states that the employer
will not lockout the employees during the term of the agreement. A lockout is
the withholding of employment by an employer from his employees for the pur-
pose of resisting their demands or gaining a concession from them. Fox Island
Teachers Association v. MSAD No. 8 Board of Directors, MLRB No. 81-28
(April 22, 1981). The proposal relates to whether the School Committee can
put the bus drivers out of work during the term of the contract, and therefore
is related to the drivers' hours and working conditions. Although lockouts
probably are illegal under the Act, one legitimate reason for wanting a con-
tract clause prohibiting lockouts is that a contract remedy, in addition to
any remedy under the Act, would be available in the event of a lockout. We
conclude the lockout proposal is a mandatory subject of bargaining and that
the School Committee violated Section 964(1)(E) by refusing to negotiate about
the proposal.
C. The use of bulletin boards proposal. We have held that the bargain-
ing agent's use of employer bulletin boards is a mandatory subject of bargain-
ing.
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SAD #5 Federation of Teachers v. Sternberg, MLRB No. 81-43 (May 14, 1981).
Use of bulletin boards to post union materials is related to the employees'
working conditions, in that the bargaining agent is the employees' sole
and exclusive representative in negotiations over wages, hours, and working
conditions. See, e.g., NLRB v. Proof Co., 242 F.2d 560, 562 (7th Cir.),
cert. denied 355 U.S. 831 (1957). The School Committee is obligated by
Section 965(1)(C) to negotiate about the bulletin boards proposal.
D. The union activities proposal. This proposal provides for paid time
off for union representatives to perform various union activities, including
collecting union dues and fees if these funds are not collected through pay-
roll deductions; posting union notices; distributing literature; soliciting
union membership during other employees' non-working time: attending bargain-
ing sessions; transmitting communications to the employer; and consulting
with the employer or other union officials about enforcement of the contract.
The issue of paid time off for union activities is "a function of hours of
work and, thus, a term of employment." City of Albany v. Helsby, 48 A.D.2d
998, 370 N.Y.S.2d 215, 216 (App. Div.), affirmed 38 N.Y.2d 778, 345 N.E.2d
338, 381 N.Y.S.2d 866 (1975); Sanford Fire Fighters Association v. Sanford
Fire Commission, supra at 11. In addition, the transaction of union business
at the work place by the employees' exclusive bargaining agent has "consider-
able impact" on the employees' wages, hours and working conditions, and thus
is a mandatory subject of bargaining. National Education Association -
Topeka, Inc. v. USD 501, Shawnee County, 225 Kan. 445, 592 P.2d 93, 98 (1979).
We conclude that the union activities proposal is a mandatory subject of
bargaining and that the School Committee violated Section 964(1)(E) by
refusing to bargain about it.
E. The union visits proposal. The union visits proposal states that
union representatives shall have full and free access to the work place to
conduct union business "at any time during working hours." This proposal is
not a mandatory subject of bargaining because it proposes access to the
employees at any time during working hours. Such access could unduly inter-
fere with and disrupt the school bus operation. Were the proposal drafted so
as to provide access to employees during breaks or other non-working times the
proposal would, for the reasons stated with regard to the union activities
proposal, be a mandatory subject of bargaining. The School Committee was not
obligated by Section 965(1)(C) to bargain about the union visits proposal as
drafted.
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F. The uniforms proposal. This proposal provides that if an employee is
required to wear a uniform, protective clothing, or any type of protective
device, such uniform, clothing or device shall be furnished by the School
Committee. Four uniforms shall be provided, and shall be replaced by the
School Committee on an as needed basis. This proposal is a mandatory subject
of bargaining because the furnishing of clothing required by the job is a form
of compensation, or "wage," for labor or services. See Pacific American
Fisheries, Inc. v. United States, 138 F.2d 464, 465 (9th Cir. 1943). If
special clothing or a protective device is required for the job, the employees
receive a monetary benefit if the employer provides the clothing or device.
The proposal does not state that the School Committee shall provide "everyday"
clothing for the bus drivers, but proposes that if special clothing or a
protective device is required, it shall be furnished by the School Committee.
We conclude that the proposal has a significant and material relationship
to wages, and that the School Committee violated Section 964(1)(E) by refusing
to bargain about the proposal.
G. The bargaining unit work proposal. This proposal states that the
School Committee shall not assign bargaining unit work to employees outside
the bargaining unit except in case of an emergency. Proposals dealing "with
employment opportunities for employees in the unit, pertain to their 'wages,
hours, and other terms and conditions of employment.'" Crown Coach Corp.,
155 NLRB 625, 628 (1965). Such proposals preserve work for unit employees,
and thus are related to job security, and also protect the employees' earnings
by protecting their work opportunities. The School Committee is required by
Section 965(1)(C) to bargain about the proposal.
H. The severance pay proposal. The School Committee concedes in its
brief that the issue of severance pay is a mandatory subject of bargaining.
Teamsters Local 48 v. City of Augusta, MLRB No. 78-04 (June 7, 1978). The
School Committee breached its duty to bargain by refusing to negotiate about
severance pay.
I. The savings clause proposal. This proposal in essence provides that
if any section of the collective bargaining agreement is declared invalid by
any tribunal of competent jurisdiction, the remaining sections of the contract
shall continue in force and the parties shall negotiate for a provision to
replace the invalid section. This proposal is significantly and materially
related to the drivers' wages, hours and working conditions in that it pro-
vides that contract provisions governing these issues will continue in effect
if any portion of the contract is declared in-
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valid. Should one invalid provision in the contract make the entire contract
invalid, the drivers' wages, hours and working conditions would be materially
affected if the School Committee stopped observing all provisions in the
contract. As the Court stated in NLRB v. Davison, 318 F.2d 550, 557 (4th Cir.
1963), "some proposals to reduce disruptions resulting from breaches of
contract are mandatory subjects of collective bargaining." The savings clause
proposal was just such a provision, and the School Committee was required to
negotiate about it.
J. Remedies. In sum, the School Committee violated Section 964(1)(E) by
refusing to negotiate about the work schedules, lockouts, bulletin boards,
union activities, uniforms, bargaining unit work, severance pay, and contract
savings clause provisions. Pursuant to Section 968(5)(C), we will order the
School Committee to cease and desist from refusing to bargain collectively
with Council 74 about these issues, and to take the affirmative action of
bargaining about these issues and posting copies of the attached notice.
These remedies are necessary to effectuate the policies of the Act.
ORDER
On the basis of the foregoing findings of fact and decision, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. 968(5), it is ORDERED:
That the Ellsworth School Committee and Superintendent of
Schools Dale Higgins, and their representatives and agents:
1. Cease and desist from:
a) Making or effecting any changes in their practice of
paying for the full costs of health insurance for
the bus drivers and from changing any aspect of the
drivers' health insurance coverage without first no-
tifying and, if requested, bargaining with Council
74, AFSCME, the bus drivers' exclusive bargaining
agent, about the proposed change.
b) Refusing to bargain collectively with Council 74,
AFSCME about the issues of work schedules, lockouts,
bulletin boards, union activities, uniforms, bargain-
ing unit work, severance pay, a contract savings clause
and about any other mandatory subject of collective
bargaining.
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2. Take the following affirmative action necessary to
effectuate the policies of the Act:
a) Reimburse each and every bus driver the amount the
driver paid for health insurance coverage
under the School Committee's health insurance plan
for the 1980-'81 school year. The School Committee
shall pay interest on the amount due each bus driver
at a per annum rate of 12%, computed on a quarterly
basis.
b) Upon request, bargain collectively about work schedules,
lockouts, bulletin boards, union activities, uniforms,
bargaining unit work, severance pay, a contract savings
clause, and any other mandatory subject of collective
bargaining with Council 74, AFSCME, and, if an anree-
ment is reached, embody it in a signed contract.
c) Post copies of the attached Notice. Copies of this
Notice, after being signed and dated by Superintendent
of Schools Dale Higgins, shall be immediately posted by
the School Committee and maintained by it for 60 con-
secutive days thereafter in conspicuous places, includ-
ing all places where notices to bus drivers customarily
are posted. Reasonable steps shall be taken by the
School Committee to ensure that these Notices are not
altered, defaced, or covered by any other material.
d) Notify the Executive Director, in writing, within 20
days of the date of this Order, what steps the School
Committee has taken to comply with this order.
Dated at Augusta, Maine this 23rd day of July, 1981.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. 968(5)(F) to seek
a review by the Superior /s/___________________________________
Court of this decision by Edward H. Keith
filing a complaint in Chairman
accordance with Rule 80B
of the Rules of Civil
Procedure within 15 days /s/___________________________________
after receipt of this Don R. Ziegenbein
decision. Employer Representative
9
/s/___________________________________
Harold S. Noddin
Alternate Employee Representative
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______________________________________________________________________________
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
_____________________________________________________________________________
NOTICE TO ALL EMPLOYEES
PURSUANT TO
Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL NOT prior to impasse make or effect any changes in the practice
of paying the full costs of health insurance for the bus drivers and will
not change any aspect of the bus drivers' health insurance coverage
without first notifying and, if requested, bargaining with Council 74,
AFSCME about the proposed change.
(2) WE WILL NOT refuse to bargain collectively with Council 74, AFSCME about
the issues of work schedules, lockouts, bulletin boards, union
activities, uniforms, bargaining unit work, severance pay, a contract
savings clause, or any other mandatory subject of collective bargaining.
(3) WE WILL reimburse each and every bus driver the amount the driver paid
for health insurance coverage under the School Committee's health
insurance plan for the 1980-'81 school year, together with interest at a
per annum rate of 12%.
(4) WE WILL, upon request, bargain collectively with Council 74, AFSCME about
work schedules, lockouts, bulletin boards, union activities, uniforms,
bargaining unit work, severance pay, a contract savings clause, and any
other mandatory subject of collective bargaining, and, if an agreement is
reached, embody it on a signed contract.
(5) WE WILL notify the Executive Director of the Maine Labor Relations Board,
in writing, within 20 days of the date of the Decision and Order, of the
steps we have taken to comply with the Decision and Order.
ELLSWORTH SCHOOL COMMITTEE AND
SUPERINTENDENT OF SCHOOLS DALE HIGGINS
Dated:___________________________ By:_______________________________________
Dale Higgins, Superintendent of Schools
____________________
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone
289-2016.