MSEA v. State of Maine (Zipper Clause Case), No. 82-05, affirmed (mostly) CV-83-09, reversed on waiver issue, 499 A.2d 1228 (Me. 1985). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-05 Issued: December 22, 1982 _______________________ ) MAINE STATE EMPLOYEES ) ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) STATE OF MAINE, ) ) Respondent. ) _______________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 979-H(2) on August 25, 1981 by the Maine State Employees Association ("Union"). The Union alleges in its complaint that the State interfered with, restrained and coerced employees of the Department of Environmental Protec- tion, the Department of Human Services, and the Board of Cosmetology, in violation of Section 979-C(1)(A) of the State Employees Labor Relations Act ("SELRA"). Furthermore, the Union's complaint alleges that the State violated its duty to bargain, as set forth in 26 M.R.S.A. Section 979-C(1)(E), by making unilateral changes in the wages, hours, and working conditions of the aforementioned employees and by failing and refusing to bargain in good faith or to bargain over the impact of said unilateral changes. The State filed a response on September 16, 1981, denying that it had violated any provision of 26 M.R.S.A. Section 979, et seq. A pre-hearing conference on the case was held on September 25, 1981, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, on September 28, 1981, the contents of which are incorporated herein by reference. Hearings herein were held on October 14, 1981 and on November 18, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Union was repre- sented by Ann R. Gosline, Staff Attorney, and the State by Michael C. Ryan, 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. -1- ______________________________________________________________________________ JURISDICTION MSEA is the bargaining agent within the meaning of 26 M.R.S.A. Section 979-H(2) for the Professional and Technical Services and the Supervisory Services bargaining units. The State of Maine is the public employer defined in 26 M.R.S.A. Section 979-A(5). The jurisdiction of the Maine Labor Rela- tions Board to hear this case and render a decision and order lies in 26 M.R.S.A. Section 979-H. FINDINGS OF FACT Upon review of the entire record, the Maine Labor Relations Board ("Board") finds: 1. The Complainant Maine State Employees Association, having offices and a place of business at 65 State Street, Augusta, Maine, is the certified bar- gaining agent of the State employee Professional and Technical Services and Supervisory Services bargaining units, as well as for three other State employee bargaining units. 2. The Respondent, State of Maine, is the public employer as defined in 26 M.R.S.A. Section 979-A(5). 3. On June 28, 1980, MSEA and the State entered into collective bargain- ing agreements for the Professional and Technical Services and Supervisory Services bargaining units, said agreements expiring on June 30, 1981. 4. The employees of the Maine Department of Environmental Protection classified as Environmental Services Specialist I, Environmental Services Specialist II, and Environmental Services Specialist III are included in the Professional and Technical Services bargaining unit referred to in paragraphs 1 and 3 hereof. 5. The employees of the Maine Department of Environmental Protection classified as Environmental Services Specialist IV are included in the Super- visory Services bargaining unit mentioned in paragraphs I and 3 hereof. 6. Through its member employees, the MSEA became aware that the State proposed to change the working conditions of employees of the Department of Environmental Protection, including employees classified as Environmental Services Specialists II, III, and IV, pursuant to a reorganization of the Bureau of Oil to the Bureau of Oil and Hazardous Materials. -2- ______________________________________________________________________________ 7. By letter dated December 24, 1980, MSEA demanded that the State nego- tiate over the impact on the wages, hours, and working conditions of the employees mentioned in paragraph 6 hereof resulting from the reorganization noted therein. 8. As a result of the demand, noted in paragraph 7 hereof, MSEA and the State met on January 23, 1981 and April 17, 1981. At each of these meetings and at all times subsequent to the first meeting, the State has refused to bargain over the impact of the reorganization on wages, hours, and working conditions and the State has made, ratified, or refused to prevent unilateral changes with respect to working conditions of the employees mentioned in paragraph 6 hereof. 9. The changes, mentioned in paragraph 8 hereof, include assignment of the aforementioned employees to hazardous duties and increase in hours of work on a voluntary basis. The employees are encouraged to voluntarily respond to hazardous materials calls and those employees who do so volunteer are given preference for hazardous materials handling training. 10. The employees of the Department of Human Services who are classified as Human Services Workers I, II and III are included in the Professional and Technical Services bargaining unit, mentioned in paragraphs I and 3 hereof. 11. The employees of the Department of Human Services who are classified as Human Services Managers I, II, III, and IV, are included in the Supervisory Services bargaining unit noted in paragraphs 1 and 3 hereof. 12. Through its member employees, MSEA became aware that the State intended to change the wages and working conditions of employees of the Department of Human Services, particularly those employees classified as Human Services Workers I, II, and III and Human Services Managers I, II, III, and IV, pursuant to a reorganization of the bureau of Social and Rehabilitation Services. 13. By letter dated December 24, 1980, MSEA demanded that the State nego- tiate over the impact of the reorganization, mentioned in paragraph 12 hereof, on the wages, hours, and working conditions of those employees noted in said paragraph. 14. As a result of the demand, referred to in paragraph 13 hereof, MSEA and the State met on January 23, 1981 and March 30, 1981. At each of these meetings and at all times subsequent to the first meeting, the State has refused to bargain over the impact of the reorganization in the Bureau of Social and Rehabilitation Services on -3- ______________________________________________________________________________ wages, hours, and working conditions and the State has made, ratified, or refused to prevent unilateral changes with respect to wages and working conditions of the employees mentioned in paragraph 12 hereof. 15. The changes, mentioned in paragraph 14 hereof, include reclassifica- tion and reallocation of positions and changes in minimum job qualifications. All but one of these reclassifications and reallocations resulted in no salary reduction for the affected employees and the one employee, whose salary was reduced, was later reclassified and given full back pay to make her whole and, therefore, resulted in no salary reduction for any of the affected employees. 16. The employees of the Maine Board of Cosmetology, of the Department of Business Regulation, who are classified as Sanitarian I and II are included in the Professional and Technical Services bargaining unit, mentioned in para- graphs 1 and 3 hereof. 17. Through its member employees, MSEA became aware that the State pro- posed to change the wages, hours, and working conditions of the sanitarians, noted in paragraph 16, hereof, pursuant to a reorganization of the Maine Board of Cosmetology. 18. By letter dated July 9, 1981, MSEA demanded that the State negotiate over the impact of said reorganization on the wages, hours, and working con- ditions of the sanitarian employees of the Maine Board of Cosmetology. 19. As a result of the demand, referred to in paragraph 18 hereof, MSEA and the State met on July 17, 1981. At this meeting and at all times subse- quent thereto, the State has refused to bargain over the impact of the reorganization in the Maine Board of Cosmetology on the wages, hours, and working conditions and the State has made, ratified, or refused to prevent unilateral changes with respect to wages, hours, and working conditions of the employees mentioned in paragraph 16 hereof. 20. The changes, mentioned in paragraph 19 hereof, include a reduction in force, from three to two sanitarians through attrition, increasing the work- load and relocating the official headquarters and bases for expense reimburse- ment for the two remaining sanitarians. 21. The Board, pursuant to the authority of Title 5 M.R.S.A. Section 9058 and having complied with the procedure mandated therein, takes official notice of the following information, contained in the Board's non-confidential files: prior to reaching agreement on the 1980-1981 collective bargaining agreements between -4- ______________________________________________________________________________ the parties, the MSEA proposed, at the bargaining table, to bargain over the reclassification and/or reallocation of several individual positions. 22. The Board, pursuant to the authority of Title 5 M.R.S.A. Section 9058 and having complied with the procedure mandated therein, takes official notice of the following information, contained in the Board's non-confidential files: the State rejected the demands, mentioned in paragraph 21 hereof, and no individual reclassifications and/or reallocations were negotiated prior to reaching agreement on the aforementioned collective bargaining contracts. DECISION The State of Maine has admitted to having made the unilateral changes, as alleged by the Complainant Maine State Employees Association, and has further conceded that said changes have had an effect on the working conditions of some of the employees of the Department of Environmental Protection, the Department of Human Services, and the Board of Cosmetology. The State has summarized its position as follows: "The State does not dispute that there has been change in working conditions in each of the three counts. In the absence of a governing agreement, we concede that there would be a statu- tory duty to negotiate the changes in working conditions that have taken place." Brief on behalf of the State, at page 2. The issues, upon which our decision will turn, are, therefore, the following: (1) do the applicable collective bargaining agreements between the parties control the areas at issue, which were unilaterally changed, and permit the State to make said changes, (2) did the MSEA waive its right to bargain over said changes, and (3) must the State bargain over the effects of said changes, upon the affected employees, prior to implementing the changes in question. Where subjects are specifically addressed, in the provisions of an applicable collective bargaining agreement, no "mid-term" duty to bargain over said subjects exists, under parallel sections of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. Cape Eliza- beth Teachers Ass'n. v. Cape Elizabeth School Board, MLRB No. 75-24, at p.4 (10/16/75). In resolving the first issue enumerated above, we will examine the applicable collective bargaining agreements -5- ______________________________________________________________________________ between the parties. Our review of the agreements will not be to determine whether the State complied therewith but rather to determine whether or not the parties' agreements control the changes which have been implemented. Our analysis of the collective bargaining agreements will be within the parameters outlined by the United States Supreme Court in N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421, 87 S. Ct. 559, 17 L.Ed.2d 486 (1967). Approving the National Labor Relations Board's examination of a collective bargaining agreement in a mid-term bargaining case, where the employer alleged that a unilateral change was permitted by the agreement and, therefore, no duty to bargain existed, the Court stated: "[The N.L.R.B.] has not imposed itg own view of what the terms and con- ditions of the labor agreement should be. It has done no more than merely enforce a statutory right which Congress considered necessary to allow labor and management to get on with the process of reaching fair terms and conditions of employment - 'to provide a means by which agreement may be reached.' The Board's interpretation went only so far as was necessary to determine that the union did not agree to give up these statutory safeguards. Thus, the Board, in necessarily construing a labor agreement to decide this unfair labor practice case, has not exceeded the jurisdiction laid out for it by Congress." 385 U.S., at 428, 87 S.Ct., at 564. Like the N.L.R.B., our Board does not have the statutory jurisdiction to hear and decide contract grievance cases. We will, therefore, limit our inquiry, as did the N.L.R.B. above, to an examination as to whether the labor agreement's language covers the areas in dispute, in resolving whether the State's unilateral changes were made in violation of Section 979-C(1)(E) of the Act. The second major issue in this case is whether, by agreeing to Conclusion of Negotiations Articles ("zipper clauses"), in the applicable collective bargaining agreements between the parties, the MSEA has waived its right to bargain over the unilateral changes which have been implemented. A party may waive its right to demand mid-term negotiations, over unilateral changes which affect the mandatory subjects of bargaining, through assent to a "zipper clause" which covers said unilateral changes, Sanford Teachers Ass'n. v. Sanford School Committee, MLRB No. 76-16, at p.3 (10/26/76), aff'd, Ken. Super. Ct., Docket No. CA-76-600 (11/9/78), vacated on other grounds, Me., 409 A.2d 244 (1979). For such a waiver to be effective as a bar to negotia- tions, the evidence of waiver must be clear and unmistakable. Council No. 74, AFSCME v. City of Bangor, MLRB No. 80-41, at pp. 9-10 (9/24/80), aff'd. City of Bangor v. AFSCME, Council 74 and MLRB, Me., 449 A.2d 1129 (1982), Fox Island Teachers Ass'n. v. M.S.A.D. No. 8 Board of Directors, MLRB No. 81-28, at pp. 7-8 (4/22/81). -6- ______________________________________________________________________________ The critical language of the applicable collective bargaining agreements, upon which resolution of the "zipper clause" waiver issue turns, is identical in the two relevant collective bargaining agreements. The Conclusion of Nego- tiations Articles read as follows: "A. The State and MSEA agree that this Agreement is the entire Agreement, terminates all prior Agreements or understandings and con- cludes all collective negotiations during its term. Neither party will during the term of this Agreement seek to unilaterally modify its terms through legislation or other means which may be available to them. B. Each party agrees that it shall not attempt to compel negotia- tions during the term of this Agreement on matters that could have been raised during the negotiations that preceded this Agreement, matters that were raised during the negotiations that preceded this Agreement or matters that are specifically addressed in this Agreement." Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree- ment, Article LVIII; Professional and Technical Services Bargaining Unit, 1980-1981 Collective Bargaining Agreement, Article LVII. The State's initial contention is that the "broad statement" in the "zipper clause" forecloses all of the negotiations demanded by the MSEA in this case. The following language was deemed critical by the State: "A. The State and MSEA agree that this Agreement . . . concludes all collective negotiations during its term." [Deletions and emphasis made by the State]. Brief for the State, at p. 11. Contrary to the assertion of the State, we hold that the cited language does not preclude all negotiations between the parties during the terms of the collective bargaining agreements. Read within the context of its entire sentence and of the Article as a whole, the quoted verbiage is clearly meant to be an integration clause. Corbin on Contracts (One Volume Edition), Section 538 (West Publishing Co. 1952). The purpose of said clause is to limit the agreement between the parties to that which is within the four corners of the writing and to exclude parol evidence which could contradict or amend the written agreement. The State's interpretation of the cited language would nullify and render meaningless all of the language contained in paragraph B of the same Article. Such an interpretation could, therefore, not have been the intent of the parties, when the agreement was executed. The State cites our decision in Sanford Teachers' Ass'n. v. Sanford School Committee, supra, as standing for the proposition that a broad "zipper clause" -7- ______________________________________________________________________________ will present an effective bar to the sort of mid-term negotiations at issue herein. The "zipper clause," which was held to bar bargaining in Sanford, was much broader in scope than the language relied upon by the State in this case. The former clause stated: "All matters not dealt with herein shall be treated as having been brought up and disposed of and the Committee shall be under no obligation to discuss with the Association any modifications or additions to this agreement which are to be effective during the term thereof." Sanford, supra, at p. 3. To the extent that anything stated herein is incon- sistent therewith, the Sanford decision is hereby overruled. The deeming of all matters, which were not specifically discussed in the agreement, as having been raised and discarded during the collective negotiations which preceded the agreement, goes far beyond the language of the agreements in this case. Paragraph 8 of the Conclusion of Negotiations Articles, cited in full above, sets forth three categories of issues over which mid-term bargaining has been waived by the parties herein. These three classes of issues are: (1) matters which could have been raised during the pre-agreement negotiations, (2) matters discussed at the bargaining table and rejected, and (3) matters covered in the agreement. In assessing the affirmative defense of waiver, we will consider the appropriate burden of proof associated with said defense. It has long been settled law in this State that a party who raises an affirmative defense in a civil action bears the burden of producing evidence sufficient to establish the validity of said defense. Windle v. Jordan, 75 Me. 149, 153 (1883). The State has admitted that, but for the existence of waiver on the part of the MSEA thereon, the unilateral changes effected by the State herein would have to be bargained with the MSEA, prior to said changes being implemented. To prevail in its affirmative defense, the State will have to substantiate, through relevant evidence presented to the Board, that each issue raised by the MSEA's bargaining demands was: (1) a matter which could have been raised during the pre-agreement negotiations, or (2) a matter which was discussed at the bargaining table and was rejected, or (3) a matter covered in the agree- ment. We will analyze each of the unilateral changes, in subsequent sections of this decision, in light of these considerations. The final issue presented by this case is whether the State must bargain the impact or effect of the unilateral changes, upon mandatory subjects of bargaining for the employees affected, prior to the implementation of said changes. In a -8- ______________________________________________________________________________ recent case, the Supreme Judicial Court has outlined the nature of "impact bargaining," distinguished said bargaining from negotiations over change which resulted in the impact being realized, and discussed the relationship between "impact bargaining" and a "zipper clause." Mr. Justice Violette, writing for a unanimous Court, stated: "The Superior Court determined that the Board's finding of a violation of the duty to notify and bargain with the union was not clearly erroneous. We agree with the Superior Court that the Board did not err in concluding that the city had violated section 964(1) (E) and adopt its accurate analysis of this issue: 'The Board found that the City committed a distinct violation of the Public Employees Act when it failed to notify the Union of and bargain with it over the effect of the discharges of Prescott, Strout and Bragg. At issue is section 964(1)(E) which prohibits an employer from refusing to bargain collectively pursuant to Section 965, which, in turn, creates an obligation to "confer and negotiate in good faith with respect to wages, hours, (and] working conditions . . ." The effects of a discharge have been held to be a subject of mandatory bargaining. N.L.R.B. v. Allis Chalmers Corp., 601 F.2d 870, 875 (5th Cir. 1979); N.L.R.B. v. W. R. Grace & Co., Construction Products Div., 571 F.2d 279, 283 (5th Cir. 1978); N.L.R.B. v. Transmarine Navigation Corp., 380 F.2d 933 (9th Cir. 1967). Concomitant with the characteri- zation of a subject as within the duty to negotiate is a duty of the employer to notify the union to provide it with an opportunity to bargain over it. Id. The failure to do so violates Section 964(1)(E). In the case of a discharged employee, the subjects of bargaining may include severance pay, vacation pay, seniority, and pensions. Trans- marine, supra. Here, the City provided no notice to the Union of its decision to discharge the four employees covered by the guarantees of the Public Employees Act. Its unilateral action taken before the Union had an opportunity to negotiate these subjects thus constituted a breach of the Act's provisions. 'Article 33(2) of the collective bargaining agreement provides that the City and the Union each "voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to negotiate with respect to any subject or matter referred to or covered in this agreement . . ." The contract in article 26(1) also provides that "the City shall have the exclusive right to . . . discharge or sus- pend for just cause . . . [and] to reduce or expand the working forces . . ." Thus, while article 33(2) effects a waiver by the Union of its right to negotiate over a discharge for just cause itself and over changes in the size of the group of employees, it does not waive its right to negotiate over the effects of that discharge. The issues of discharge and its effects are distinct, and the waiver of one is not equivalent to the waiver of the other. The distinctiveness of these two issues is made clear in Transmarine, supra, which held that although the managerial decision to terminate its business and reinvest its capital elsewhere is not a subject of collective bargaining, the effects of the decision is mandatory to the extent that it implicates wages, hours, and other conditions of employment. Because the decision to displace employees -9- ______________________________________________________________________________ and the effects of their displacement are separate and independent issues, and further because waiver clauses in collective bargaining agreements are read constrictively, N.L.R.B. v. Auto Crane Co., 536 F.2d 310, 312 (10th Cir. 1976), see, e.g., State v. Maine Labor Relations Board, supra, 413 A.2d at 515, the Board did not err in concluding that the waiver provision in article 33(2) of the collective bargaining agreement did not encompass the effects of discharge. As the effects of a discharge is a subject of mandatory bargaining and because it was not waived here, the City violated Section 964(1)(E) by discharging the four employees without first notifying the Union to provide it with an opportunity to request negotiations over its effects.'" [Emphasis and deletions by the Court]. City of Bangor v. A.F.S.C.M.E., Council 74, Me., 449 A.2d 1129, 1134-1135 (1982). Unlike the case considered by the Law Court in State of Maine v. M.S.E.A. and M.L.R.B., Me., 443 A.2d 948 (1982), this case does not involve the unique language of 26 M.R.S.A. Section 979-D(1)(E)(1), which distinguishes that sec- tion from the parallel section of the Municipal Public Employees Labor Rela- tions Act, 26 M.R.S.A. Section 965(1)(C). Since neither party has alleged that the unique language of the Act will control the outcome of this case and since said language will not, in our view, affect the resolution of the issues herein; we hold that the Supreme Judicial Court's view of effect or impact bargaining, under the analogous provision of the Municipal Act, applied equally to cases, such as this one, arising under the State Act. In the case before us, the State has conceded that its unilateral changes did relate to and did change the working conditions, a mandatory subject of bargaining, of the employees affected by said changes. Should we find that the MSEA has waived its right to bargain over the changes themselves, in our detailed analysis of the changes, the MSEA may still have the right to demand bargaining over the effects resulting from said changes. The State, at pages 12 through 15 of its brief, makes two averments in connection with impact bargaining. Those contentions are: (1) because the parties agreed to bargain over impact in three specific Articles of the rele- vant collective bargaining agreements, the MSEA could have raised the question of impact bargaining over the changes at issue herein, during the negotiations which preceded said agreements, and (2) because the changes involved in this case are "specifically addressed" in the collective bargaining agreements, the State need not bargain over the impact of said changes. -10- ______________________________________________________________________________ The State's first contention is that, since the parties agreed to bargain over impact in three Articles of the collective bargaining agreements, the im- pact bargaining demanded by the MSEA herein could have been raised during the negotiations which preceded said agreements. The Conclusion of Negotiations Articles, cited above, provide that a matter which could have been raised during the pre-agreement negotiations cannot be raised for bargaining during the term of the agreements. The State would, therefore, have us conclude that, since three specific Articles of the agreements explicitly provide a duty to bargain over the impact of decisions made pursuant to said provisions, all other impact bargaining is waived under the Conclusion of Negotiation Articles. We have often stated that "zipper clauses" are to be strictly construed, Lewiston Teachers Association v. Lewiston School Committee, MLRB No. 80-45, p. 6 (8/11/80). The Supreme Judicial Court has approved our "constrictive" reading of such clauses. City of Bangor v. A.F.S.C.M.E., Council 74, supra, at 1135. The relevant Conclusion of Negotiations Articles are silent on the question of impact bargaining, therefore, those clauses do not explicitly foreclose such bargaining. The National Labor Relations Board recently stated: "A waiver of statutory rights may not be found . . . unless the waiver is 'clear and unmistakable' and there also be 'a conscious relinquishment by the Union, clearly intended and expressed to give up the right." [Deletion by the M.L.R.B.]. American Telephone and Telegraph Co., 250 N.L.R.B. 47, 55 (1970). The United States Court of Appeals for the First Circuit affirmed the N.L.R.B. and stated: "Where a statutory right is involved, the law of this circuit is that la waiver should be express, and that a mere inference, no matter how strong, should be insufficient.'" [Citation omitted] Communications Workers of America v. N.L.R.B., 644 F.2d 923, 928 (1st Cir. 1981). The State's averment, that inclusion of impact bargaining in three sections of the relevant agreements demonstrates that the general subject of impact bargaining could have been raised during the pre-agreement negotiations and, therefore, the impact bargaining demanded herein was waived, rests on an inference. The inference is that failure to mention impact bargaining in the contract sections authorizing the changes herein is equivalent to a waiver of bargaining over the effect of those changes. The State's argument neither demonstrates a clear and conscious relinquishment of the impact bargaining demanded herein nor does it rise beyond the -11- ______________________________________________________________________________ level of being a mere inference of waiver. The State's first argument must, therefore, be rejected. The State's second argument is that because the unilateral changes at issue herein are "specifically addressed" in the collective bargaining agree- ments, the State has no duty to bargain over the effects resulting from those changes upon mandatory subjects of bargaining. This argument is identical to that which was raised, by the City of Bangor, and rejected by the Law Court in City of Bangor v. A.F.S.C.M.E., Council 74, supra, at 1135. A union's waiver of negotiations over a public employer's power to make unilateral changes in mandatory subjects of bargaining is not tantamount to waiver of the right to bargain over the effects resulting from said changes. The two are separate and distinct issues. An effective waiver of the right to impact bargaining must be a clear and conscious relinquishment of that statutory right. Following the Supreme Judicial Court's rationale, we must reject the State's argument that it need not bargain over the impact of the unilateral changes involved herein because such changes are "specifically addressed" in the collective bargaining agreements. Having considered and rejected the arguments offered by the State, in connection with the issue of impact bargaining, we must hold that the MSEA has not waived the right to bargain over the impact or effect, upon mandatory subjects of bargaining, resulting from the unilateral changes made by the State which are the subject of this case. Our holding is further supported by an analysis of the nature and proper use of "zipper clauses." The General Counsel of the National Labor Relations Board has outlined the legal basis and rationale for "zipper clauses," as well as the proper function of such sections, in a reported Advice Memorandum. The Memorandum stated: "In Jacobs Mfg. Co., (94 N.L.R.B. 1213, enf. 196 F.2d 680 (2nd Cir. 1952)], the Board suggested that parties to a contract could preclude later negotiations over subjects not contained in the contract by in- cluding a zipper clause in the contract. Although the language of the zipper clause in the instant case does not comport in every respect with the language of the clause suggested by the Board in Jacobs, it is clear that the Board merely gave an example of a zipper clause and that it did not insist that all zipper clauses have identical or even similar language. The important point in this case is that the Employer and the MLUA [Major Leagues Umpires Association] expressed, in some manner, their understanding that all 8(d) subjects of bargaining would be considered to have been discussed. "The above conclusion that MLUA could not force bargaining over the 21 subjects during the term of its current collective bargaining agreement -12- ______________________________________________________________________________ furthers the basic federal labor policy of promoting industrial peace as well as contract stability. If a contrary conclusion were reached, the result could be chaos. There are innumerable 8(d) subjects over which either party could constantly be request- ing bargaining. Thus, it is possible that the parties' contract could always be in a state of flux. Moreover, it may be lawful for a union to strike in support of its demands regarding an 8(d) subject not contained in the agreement. Therefore, when the par- ties have shown, through the use of a zipper clause or by other means, a desire for stability in their relations for the duration of the collective bargaining agreement, such intent should be given effect, so that neither party may seek to bargain over new subjects during the term of the agreement. "Although the Board has held that a zipper clause will not necessar- ily preclude a finding of a Section 8(a)(5) violation when an employer unilaterally changes a term and condition of employment which is not contained in the current contract, such cases were deemed to be in- apposite to the circumstances herein. There is a clear distinction between a situation where a party to a contract wishes to preserve the status quo and one where a party wishes to change it. In those cases involving a unilateral change, the employer relies on the exist- ence of a zipper clause in the collective bargaining agreement not simply to establish that the contract precludes bargaining over new subjects during the term of the contract, but also, and more impor- tantly, to establish that the contract gives the employer unfettered power to change any term or condition not contained in the contract. The Board has clearly stated that a zipper clause will not ordinarily be construed to grant the employer such unfettered power. However, in the instant case, no claim is being made by the Employer that the zipper clause gives it the absolute power to change terms and condi- tions of employment not contained in the contract. Rather, it is relying on the zipper clause simply to avoid being forced to bargain over new subjects. Therefore, MLUA's reliance on those zipper clause cases involving a unilateral change is misplaced. Similarly, the MLUA cannot rely upon Section 8(d) for its contention that the Employer must bargain concerning the 21 subjects since Section 8(d) was designed to protect the party to a contract who wishes to preserve the status quo. Thus, where as here, the Employer is using the contract and 8(d) as a shield to protect against a bargaining demand and not as a sword to justify a change, the employer's conduct was considered privileged." American League of Professional Baseball Clubs and National League of Profes- sional Baseball Clubs, N.L.R.B. General Counsel Memorandum, text reprinted in full at 99 LRRM 1724, 1725-1726 (1978). We do not cite the above memorandum as persuasive authority; however, we believe that it accurately reflects the present state of federal labor relations law in connection with the status and use of "zipper clauses." Properly invoked, the Conclusion of Negotiation Articles would preclude negotiations over matters which had either been settled in the collective bargaining process or which could have been raised thereat. Said Articles cannot be used to bar negotiations over the effects, upon mandatory subjects of bargaining, resulting from the -13- ______________________________________________________________________________ State's unilateral changes. Applying the above impact bargaining discussion to the facts before us, we conclude that the Conclusion of Negotiation Articles do not preclude the MSEA from demanding negotiations over the effects of the State's unilateral changes upon mandatory subjects of bargaining. The State's duty to bargain, as mandated by Section 979-C(1)(E) of the Act, included the obligation to notify the MSEA of the proposed changes and, if the MSEA demanded negotiations over the effects of said changes upon mandatory subjects of bargaining, to bargain over said effects prior to implementing the changes. City of Bangor v. A.F.S.C.M.E., Council 74, supra. We hold that the State violated 26 M.R.S.A. Section 979-C(1)(E) by failing to notify the MSEA of the impending changes in order to give the union the opportunity to demand bargaining over the effects thereof upon mandatory subjects of bargaining, prior to the implementation of the changes. As soon as the MSEA learned of the changes, from the affected bargaining unit employees and shortly after the changes were unilaterally implemented, the bargaining agent demanded negotiations over the impact resulting from the changes. This prompt demand for bargaining by the MSEA further serves to refute any inference that the union might have waived its right to impact bargaining. The State further violated Section 979-C(1)(E) of the Act when it refused to bargain over the changes' impact upon mandatory subjects of bargaining and we so hold. The State's duty to bargain, over the impact of the unilateral changes upon mandatory subjects of bargaining, does not, however, mean that the State will have to wait, until disputes between the parties are resolved by an arbi- trator, prior to implementing the changes. In the event that the parties fail to reach a negotiated settlement on the impact questions, impasse will be reached. When a bona fide impasse has been reached between the negotiating parties, the public employer may implement unilateral changes, so long as said changes are consistent with the last best offer made to the bargaining agent during negotiations. M.S.E.A. v. State of Maine, MLRB No. 78-23, p. 4 (7/15/78), aff'd sub nom, State of Maine v. M.L.R.B., Me., 413 A.2d 510 (1980). Having determined that the State must negotiate over the effects, result- ing from the unilateral changes which it has implemented upon mandatory sub- jects of bargaining, we will, in the following three sections of this decision, examine whether the State must bargain over the reorganizational changes themselves, pursuant to Section 979-D of the Act. -14- ______________________________________________________________________________ DEPARTMENT OF ENVIRONMENTAL PROTECTION The MSEA has made thirteen specific negotiation demands in connection with the State's unilateral reorganization of the Department of Environmental Protection's Bureau of Oil into the Bureau of Oil and Hazardous Materials (Joint Exhibit 8). At the outset, we note that the Management Rights Articles of the relevant collective bargaining agreements provide as follows: "The MSEA agrees that the State has and will continue to retain the role and exclusive right to manage its operations and retains all management rights, whether exercised or not, unless specifically abridged, modified or delegated by the provisions of this Agreement. Such rights include but are not limited to: the right to determine the mission, location and size of all agencies and facilities; the right to direct its work force; to administer the merit system; to establish specifications for each class of positions and to classify or reclassify and to allocate or reallocate new or existing positions in accordance with the law; to discipline and discharge employees; to determine the size and composition of the work force; to eliminate positions; to make temporary layoffs at its discretion; to contract out for goods and ser- vices; to determine the operating budget of the agency; to install new, changed or improved methods of operations; to relieve employees because of lack of work or for other legitimate reasons; to maintain the efficiency of the government operations entrusted to them; and to take whatever actions may be necessary to carry out the mission of the agency in situations of emergency." Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree- ment, Article LVI; Professional and Technical Services Bargaining Unit, 1980- 1981 Collective Bargaining Agreement, Article LV. Our reading of the above Articles leads us to the conclusion that the State was authorized, thereby, to make the reorganization decision itself without having to bargain with the MSEA over the decision itself. We will now examine the specific MSEA bargaining proposals. The bargain- ing agent's first proposal deals with the reclassification and the realloca- tion of the affected employees. This proposal is clearly covered by the Reclassification Articles of the collective bargaining agreements. The MSEA has, therefore, under the terms of the applicable "zipper clause," waived bargaining over this proposal by its agreement to a provision in the collective bargaining agreements which sets forth a procedure for resolving this issue. The MSEA's second bargaining proposal, like the first, concerns reclassi- fications. The negotiation demand is likewise barred by the union's acceptance of -15- ______________________________________________________________________________ a controlling provision in the collective bargaining agreements. Furthermore, bargaining over reclassifications and/or reallocations was specifically fore- closed by the Supreme Judicial Court's decision in State of Maine v. M.S.E.A. and M.L.R.B., supra, at 952-953. The Law Court held that reclassification and/or reallocation decisions were "prescribed and controlled" by sections of public law (5 M.R.S.A. Section 593) and, therefore, the same are expressly excluded from the ambit of collective bargaining by the terms of Section 979-D(l)(E)(1) of the Act. The MSEA's third bargaining proposal reads as follows: "No employee to be laid off or involuntarily transferred as a result of ineligibility for or refusal to assume duties per- taining to toxic or hazardous materials other than oil and other petroleum products. Such employees to remain Environmental Serv- ices Specialists. Employees assuming the new duties and later washing out to be reassigned to other duties at a comparable level." The first sentence of this negotiation demand is covered by the Management Rights Articles of the relevant collective bargaining agreements. The State has retained the power "to determine the mission," "to direct its work force," and to "relieve employees because of lack of work or for other legitimate reasons." The second sentence is barred by the Reclassifications Articles which permit the State, through adherence to an established contractual procedure, to reclassify its employees. The last sentence concerns the fate of employees who attempt and are unsuccessful in performing the new duties. The State, at page 17 of its brief, suggests that this portion of the proposal is controlled by the Seniority and Permanent Status Articles of the relevant collective agreements. The portions of the Seniority Article cited deal only with situations where "an appointing authority determines that a reduction in force is necessary." The Permanent Status Articles only discuss probationary periods and the extension thereof. Neither provision controls the proposal made by the bargaining agent. The third sentence of the bargaining proposal clearly concerns working conditions and is, therefore, a mandatory subject of bargaining. The State, who had the burden of proof thereon, failed to establish that said proposal could have been raised during the pre-agreement negotiations or that it was raised and disposed of at that time. We, there- fore, hold that there was no waiver, as to this sentence of the proposal, and that the State must bargain over it with the MSEA, as an impact of the reorganization decision. -16- ______________________________________________________________________________ The MSEA's seventh proposal concerns the effective date of the employers' reclassifications. Said proposal is specifically covered in the contracts' Reclassification Articles. The Articles state, in section 4 thereof: "Any reclassification or reallocation decision of the Personnel Commissioner or the Arbitrator or Alternate shall be effective as of the date of the written initiation of the reclassification or reallocation request by the employee, MSEA or State and shall be im- plemented retroactively when the funds are provided pursuant to bud- getary procedures." Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree- ment Article XXIX; Professional and Technical Services Bargaining Unit, 1980- 1981 Collective Bargaining Unit, Article XXIX. Since said proposal is covered by the collective bargaining agreement, the State has no duty to bargain thereon. The MSEA's eighth and ninth proposals deal with overtime compensation and standby pay. The overtime demand is controlled by paragraph E of the collec- tive bargaining agreements' Compensation Articles and the standby proposal is governed by paragraph H of said Articles. No duty to bargain, therefore, exists on these proposals during the term of the collective bargaining agree- ments. The bargaining agent's eleventh and twelfth negotiation demands concern paid-up life insurance and a 20 year, no age retirement plan with a 7.5% em- ployee contribution respectively. Group life insurance for state employees is established and governed by the provisions of Title 5 M.R.S.A. Section 1151. The state retirement plan is controlled by Title 5 M.R.S.A. Section 1001, et seq. The 20 year, no age, retirement plan proposal is precluded by the provisions of 5 M.R.S.A. Section 1121(1) and the 7.5% employee contribution is contrary to Section 1095(1) of Title 5 M.R.S.A. Title 26 M.R.S.A. Section 979-D(1)(E)(1) provides, in relevant part, as follows: "All matters relating to the relationship between the employer and employees shall be the subject of collective bargaining, except those matters which are prescribed or controlled by law. " Our reading of the MSEA's eleventh and twelfth proposals, together with the sections of Title 5 M.R.S.A. cited above, leads us to conclude that the proposals are "prescribed or controlled" by public law and, therefore, no duty to bargain exists thereto. -17- ______________________________________________________________________________ The MSEA's fourth bargaining demand concerns training for the affected employees' new duties, resulting from the implementation of the unilateral change by the State. The proposal demands bargaining over initial and on- going training, training opportunities for all affected employees, and State payment of tuition costs, travel expenses, and all other costs for said training. The State has averred, at page 17 of its Brief, that the subject matter of said proposal is covered by the Employment Development and Training Articles of the Collective Bargaining Agreements. The contract provisions at issue state: "1. The State agrees to provide advice and counselling to employees with respect to career advancement opportunities and agency developments which have an impact on their careers. 2. Regular review of its job-related and career development and training programs will be made by the State in order to pro- vide suitable programs for employees covered by this Agreement. When undertaking any such review, the State shall notify employees of such review and take into account suggestions and proposals made by employees. 3. Employees shall be given a reasonable notice of applicable development and training programs available. Such notice shall in- clude an explanation of the procedure for applying for the program. An appointing authority shall make every effort to permit employees' participation in such career development and training programs. Par- ticipation in any training inside or outside of work hours which is required by the State as a condition of fulfilling the requirements of the employee's job, or any in-service state training which is con- ducted or undertaken during normally scheduled work hours will be con- sidered as time worked. 4. The State shall pay tuition, course-related fees, other approved course-related costs and for necessary travel and lodging pursuant to established policies and procedures." Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree- ment, Article XXXIV; Professional and Technical Services Bargaining Unit, 1980-1981 Collective Bargaining Agreement, Article XXXIV. Although the cited Articles appear to address portions of the union's bargaining proposal, such as State payment of costs related to training programs and the deeming of time spent in training programs as work time, the Board holds that these Articles do not preclude the MSEA's demand to bargain over provision of the initial and on-going training programs, outlined in an Inter-Departmental Memorandum dated October 30, 1980. Training programs have been held to be "working conditions," within the meaning of the Federal Statute which is analogous to Section 979-D(1)(E)(1) -18- ______________________________________________________________________________ of the Act, therefore, such training programs are mandatory subjects of bar- gaining. Flambeau Plastics Corp. v. N.L.R.B., 401 F.2d 128, 135 (7th Cir. 1968), U.S. cert. denied, 393 U.S. 1019. The State, by implementing the uni- lateral change in working conditions, has caused a substantial change in the employees' job assignments. The State must bargain over the initial and on- going training, specifically contained in the union's proposal, as an impact or effect resulting from the unilateral change. The State has offered no evidence indicating that the bargaining agent's request could have been raised in the pre-agreement negotiations or that it was so raised. Having failed to establish that the proposal was controlled by the collective bargaining agree- ment, could have been raised during the pre-agreement bargaining, or was so raised, the State's waiver argument, as to the specific proposal to bargain over initial and on-going train-ing for the affected employees must fail. The MSEA's fifth, sixth, and tenth bargaining demands all concern the health and safety of the affected employees. The fifth demand is for "all safety requirements" set forth in three specific safety manuals "be met continuously." The sixth proposal demands the provision of specific safety equipment, for use by the employees in connection with the new duties required by the unilateral change, and training in the "use and limitations" of said equipment. The tenth demand is for a health surveillance program. The State has argued, at page 17 of its Brief, that said proposals are covered by the Health and Safety Articles of the collective bargaining agreements. Additionally, the State has averred that the training portion of the union's sixth proposal is covered by the Employee Development and Training Articles cited above. The Health and Safety Articles read as follows: "The State will take appropriate action to assure compliance with all of applicable laws concerning the health and safety of employees in its endeavors to provide and maintain safe working conditions. MSEA agrees to support any programs required to meet the health and safety needs of employees." Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree- ment, Article XXXV; Professional and Technical Services Bargaining Unit, 1980- 1981 Collective Bargaining Agreement, Article XXXV. Our reading of the union's bargaining demands, together with the cited section of the collective bargaining agreements and the evidence presented at the hearing, leads us to conclude that said contract Articles do not preclude the impact bargaining demanded herein. The State did not introduce any "applicable laws" concerning the health and safety of -19- ______________________________________________________________________________ persons dealing with hazardous materials which might control the proposals presented. Furthermore, the Employee Development and Training Article might apply once the equipment mentioned in the sixth proposal is procured; however, the evidence before us is that only some of said equipment is presently avail- able to the affected employees. Health and safety issues have been held to come within the ambit of "working conditions," within the meaning of the section of Federal law which is parallel to 26 M.R.S.A. Section 979-D(1) (E)(1). N.L.R.B. v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967); United Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980). As "working conditions," health and safety issues are mandatory subjects of bar- gaining. The State has not established that these proposals were raised in the pre-agreement negotiations or that they could have been so raised. We, therefore, hold that the State must bargain with the MSEA over the union's fifth, sixth, and tenth bargaining demands concerning the effects of the State's implementing the unilateral change herein. The bargaining agent's thirteenth demand relates to the minimum number of employees who are to respond to hazardous materials incidents. The State argues, at page 17 of its Brief, that this proposal is covered by the Health and Safety and the Management Rights Articles quoted above. Initially we note that the Management Rights Articles do reserve to the State the power to "determine the size and composition of the work force." If, however, the union can argue that the number of employees responding to hazardous materials incidents is directly related to the health and safety of those employees, the said number would be a mandatory subject of bargaining, as a health and safety impact resulting from the unilateral change.[fn]1 The Health and Safety Articles do not cover the proposal because the State did not introduce any "applicable laws" which control the subject matter of the demand. Further- more, the State introduced no evidence that this proposal could have been raised during the pre-agreement negotiations or that it had been so raised. There was no evidence introduced that the unilateral change, which gave rise to the effects discussed in this section of our decision, was even contem- plated during the _______________ 1/ The Board is not deciding herein whether minimum employee response to a hazardous materials incident is itself a mandatory subject of bargaining. The Board is, however, holding that such minimum response must be bargained as an effect of impact of the unilateral change implemented by the employer upon the health and safety of the employees affected by said change in working conditions. The Board presently has before it cases which raise the former issue and that question will be resolved in those cases. -20- ______________________________________________________________________________ pre-agreement negotiations by either of the parties. We hold, therefore, that, if the union can establish that the number of employees responding to hazardous materials incidents is directly related to the health and safety of those employees, the State must bargain with the MSEA over this proposal, as an effect resulting from the unilateral change implemented by the State. We have found that a portion of the union's third demand and the MSEA's fourth, fifth, sixth, tenth, and a portion of the thirteenth demand all concern the impact of the unilateral change implemented by the State upon mandatory subjects of bargaining. We have further concluded that said demands are not covered by the relevant collective bargaining agreements nor could said demands have been raised during the pre-agreement negotiations nor were they so raised. The MSEA has, therefore, not, under the terms of the applicable Conclusion of Negotiations Articles, waived its right to demand impact bargaining over these proposals during the term of the collective bargaining agreements. Since said demands concern the impact of the uni- lateral change upon mandatory subjects of bargaining and absent any waiver thereon by the MSEA, we hold that by refusing to bargain with the MSEA over said proposals, the State has violated Section 979-C(1)(E) of the Act. We will order an appropriate remedy for this violation. DEPARTMENT OF HUMAN SERVICES The MSEA has made seven specific bargaining demands in connection with the State's unilateral change of the educational and/or experience require- ments for the Human Services Workers and Human Services Managers employed by the Department of Human Services. The Management Rights Clauses of the rele- vant collective bargaining agreements explicitly permit the State to make this change without having to bargain with the union thereover. The Management Rights Articles permit the State to "establish specifications for each class of positions and to classify or reclassify and to allocate or reallocate new or existing positions in accordance with the law" and further to "determine the size and composition of the work force." A separate question, however, is whether the State must, prior to implementing said change in working conditions, notify the MSEA thereof, allow the union to raise questions con- cerning the impact or effect of the change upon mandatory subjects of bargain- ing, and to bargain with the MSEA over said impact, prior to implementing the change. City of Bangor v. A.F.S.C.M.E., Council 74, supra at 1135. The evidence -21- ______________________________________________________________________________ before us is that the State failed to notify the MSEA of the proposed change and, therefore, failed to give the union the opportunity to bargain over the effects of said change upon mandatory subjects of bargaining, prior to imple- mentation of the change. Should we find, in the following analysis, that the MSEA has not waived bargaining over some or all of its proposals, the State's failure to notify the union, to allow the union to raise demands concerning the effects of the change upon mandatory subjects of bargaining, and to bar- gain over the same with the MSEA, prior to implementation thereof, would constitute a violation of 26 M.R.S.A. Section 979-C(1)(E). The MSEA's first bargaining demand concerns the grandfathering of incumbent employees in the reclassified positions, no applications or examinations for said positions, no requirement that incumbents meet the new qualifications, and no change of duties for the employees who met the prior minimum qualifications. In our view, the Reclassifications Articles of the collective bargaining agreements control reclassifications, including those involved in the Human Services reorganization involved herein. As was noted above, reclassification decisions are prescribed or controlled by public law and are, therefore, not mandatory subjects of bargaining. State of Maine v. M.S.E.A. and M.L.R.B., supra. For both reasons, the MSEA's first bargaining demand does not give rise to a duty to bargain by the State. The MSEA's second proposal deals with reclassifications and allocation of the classes into specific pay ranges. The Reclassification Articles of the applicable collective bargaining agreements cover the subject matter of this demand. The union has, therefore, waived its right to bargain over this subject. The bargaining agent's third demand is for overtime to be paid at straight time rates. This proposal is covered by paragraph E of the Compen- sation Articles in the relevant collective bargaining agreements. The MSEA has, by agreement to said provision in the agreements, waived the right to bargain over this demand. The union's fourth demand states as follows: "Training program to be provided for incumbents wishing to complete credits. Employees to be provided opportunity to participate in training program and time so spent to be con- sidered hours worked. State to pay any tuition, travel costs and other expenses." The State avers that the Employee Development Training Articles of the relevant collective bargaining agreements covers this proposal. Brief for State, p. 16. -22- ______________________________________________________________________________ We agree that said contract provision does cover all but the first sentence of the Union's demand. There was evidence before us, however, that at least one of the affected employees would not be allowed to retain her position because she fell too far short of the new educational qualification/experience standards for said position. The effect of the unilateral change upon that employee's working conditions, as well as upon those of similarly circum- stanced employees, is significant. In cases where the State does not wish to allow the incumbent employees to complete the new educational/experience standards, the State must bargain with the MSEA over the effects of the unilateral changes upon the working conditions of said employees, including the provision of educational training programs. The State failed to notify the MSEA of the proposed change and failed to allow the union the right to raise impact bargaining issues, prior to the implementation of the unilateral change. As soon as the MSEA learned of said change, from affected bargaining unit employees, it demanded the right to bargain over the impact thereof upon mandatory subjects of bargaining. The State has refused to so bargain. The State failed to establish that the first sentence of the MSEA's fourth proposal was raised during pre-agreement negotiations or that it could have been raised at that time. Because the union has not waived the right to bar- gain over said first sentence of its fourth proposal and because said sentence deals with the impact of the unilateral change upon mandatory subjects of bargaining, we hold that the State violated Section 979-C(1)(E) of the Act by failing to notify the MSEA of the change, prior to its implementation and by failing to bargain with the MSEA over the first sentence of the union's fourth bargaining demand. We will order an appropriate remedy for this violation of the Act. The MSEA's fifth bargaining demand concerns the effective date of the reclassifications at issue. Paragraph 4 of the Reclassification Articles of the relevant collective bargaining agreements cover this proposal. The MSEA has, by agreement to said Articles, waived its right to bargain over this demand. The bargaining agent's sixth proposal deals with incumbents in the reclassified positions being available for vacant positions. Paragraph G of the Seniority Articles of the relevant agreements cover this proposal and, therefore, bargaining over it has been waived by the MSEA. The MSEA's seventh demand concerns filling all vacancies, prior to imple- mentation, on the basis of current registers. Like the sixth proposal, this -23- ______________________________________________________________________________ demand is covered by paragraph G of the Seniority Articles of the collective bargaining agreements between the parties. The seventh demand has, therefore, been waived by the union. BOARD OF COSMETOLOGY The State has, through attrition, reduced the number of Sanitarians in the Board of Cosmetology from three to two. As a result of this change the two remaining Sanitarians have moved their work locations from Augusta to Portland and from Fort Fairfield to Bangor. Under the Management Rights Article of the relevant collective bargaining agreement, the State retains the power "to determine the mission, location and size of all agencies and facili- ties." Said provision clearly authorizes the State to make the unilateral change involved herein without first having to bargain with the MSEA over the decision itself. At issue, however, are the effects of the State's decision upon the working conditions (mandatory subjects of bargaining) of the affected employees. As was noted above, the State has the duty, under Section 979-D(l) (E)(1) of the Act, to notify the bargaining agent of the impending decision and, should the union so request, to bargain over the effects of the decision upon mandatory subjects of bargaining, prior to implementation. In this case, as in the cases of the two departments discussed above, the State failed to notify the MSEA of its plan to implement the change, prior to effectuating the same. Once the MSEA learned of the change, after its implementation from an affected bargaining unit employee, the union demanded bargaining over two specific proposals. The union contended that said demands concerned the effects of the State's unilateral change upon the working conditions of the affected employees. The State refused to bargain over the union's proposals, claiming that both were covered by the collective bargaining agreement between the parties. The MSEA's first proposal is that one of the Sanitarians "operate out of the Augusta office and be reimbursed for expenses on that basis." The State, at page 18 of its Brief, argued that this proposal was waived by the union because its subject matter was included in the Relocations and the Management Rights Articles of the parties' collective bargaining agreement. The Reloca- tions Article clearly is, by its terms, not controlling over the MSEA's first demand. The Article states, in relevant part: "This Article does not apply to employees relocating in connection with any reduction in force or to employees in job -24- ______________________________________________________________________________ classes which traditionally have required performance of duties at other than a fixed location." Professional and Technical Services Bargaining Unit, 1980-1981 Collective Bargaining Agreement, Article XXVIII. The Management Rights Article, as noted above, permits the State to make the unilateral change but is 'silent on the effects of said change. The effects of the unilateral change upon the employees' working conditions is obvious. Each employee now has to cover one- half of the State of Maine, rather than one-third as before. This change in workload entails increased driving time and distances. Furthermore, each employee is responsible for inspecting many more beauty shops. Finally, change of an employee's base of operations affects the basis of mileage reimbursements which each receives. All of these are effects upon working conditions, mandatory subjects of bargaining, resulting from the unilateral change. The MSEA's second proposal is for one of the Sanitarians to be "provided a state vehicle for his work." The State averred that the State Vehicles and Equipment and the Management Rights Articles of the relevant agreements cover this subject. The State Vehicles and Equipment Article reads as follows: "1. No employee shall be required to operate any State vehicle or equipment which is unsafe. An employee shall not be subject to any penalty or disciplinary action because of failure or refusal to operate or handle any equipment which he reasonably believes to be in unsafe condition. In any such circumstance an employee shall call the matter to the attention of his/her supervisor for proper action. 2. Other than motor vehicles, and except where employees have traditionally supplied their own tools, all employees shall be pro- vided such equipment and tools as are reasonably necessary for their jobs, such as, drafting equipment, potato rakes, flashlights and bat- teries, and supplies. 3. Each ferry service vessel shall be provided with a full com- plement of necessary tools." Professional and Technical Services Bargaining Unit, 1980-1981 Collective Bargaining Agreement, Article XXXVI. This Article clearly does not cover the decision to provide automobiles to employees for their work. The Management Rights Article, while allowing the State to make the unilateral change, is silent on the issue of the effects of said change, including the question of providing State cars to employees. The use of State cars clearly relates to an employee's working conditions and is, therefore, a mandatory subject of bargaining. -25- ______________________________________________________________________________ Both of the MSEA's bargaining proposals involve the effects of the uni- lateral change upon mandatory subjects of bargaining and neither of them was covered by the provisions of the relevant collective bargaining agreement. The State presented no evidence that either proposal was raised during the pre-agreement negotiations or that either could have been so raised. The MSEA has, therefore, not waived its right to bargain over these proposals, under the waiver provisions set forth in the Conclusion of Negotiation Article in the collective bargaining agreement. We conclude that the State violated its duty to bargain in good faith, as mandated by 26 M.R.S.A. Section 979-C(1)(E), when it failed to notify the MSEA of the unilateral change, prior to implemen- tation, and further when it refused to bargain over the two bargaining proposals made by the MSEA. We will order an appropriate remedy for these violations. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of Title 26 M.R.S.A. Section 979-H, it is ORDERED: 1. That the State of Maine, its representatives and agents, cease and desist from refusing to bargain with the Maine State Employees Asso- ciation over said Association's following proposals to bargain over the effects, resulting from the State's unilateral change of the Department of Environmental Protection's Bureau of Oil into the Bureau of Oil and Hazardous Materials, upon mandatory subjects of bargaining. The State shall, within ten calendar days after receipt of a written request to meet and bargain thereon, bargain over each of the following proposals: a. Employees assuming the new duties and later washing out to be reassigned to other duties at a comparable level. b. State to provide initial and on-going training for all Oil and Hazardous Materials Specialists as outlined in Inter-Departmental Memorandum dated October 30, 1980. c. All safety requirements as set out in the DEP Policy Statement, the Bureau's Field Health and Safety Manual and the EPA Safety Manual for Hazardous Waste Site In- vestigations to be met continuously. d. All equipment set out in the Hazardous Equipment Needs statement to be provided continuously. In addition, -26- ______________________________________________________________________________ appropriate environmental monitoring equipment, response trailers, sample storage areas and other necessary equip- ment to be provided. The State to monitor new developments in equipment and provide improved equipment when appro- priate. Initial and on-going training to include the proper use and limitations of protective equipment. e. If the M.S.E.A. can establish a direct relationship between the number of employees responding to hazardous materials incidents with the health and safety of those employees: All incidents for investigation to require response from at least 2 employees. All responses for sampling or clean-up to require 4 employees. 2. That the State of Maine, its representatives and agents, cease and desist from refusing to bargain with the Maine State Employees Asso- ciation over said Association's following proposal to bargain over the effect, resulting from the State's unilateral change of the minimum qualifications for the Human Services Workers and Human Services Managers employed by the Department of Human Services, upon mandatory subjects of bargaining. The State shall, within ten calendar days of receipt of a written request to meet and bargain thereon, bargain over the following proposal: Training program to be provided for incumbents wishing to complete credits. 3. That the Maine State Employees Association is, within twenty calendar days of the date hereof, to document to the Board any actual injury or harm, experienced by bargaining unit employees affected by the unilateral change in the minimum job qualifications for the Human Services Workers and Human Services Managers employed by the Depart- ment of Human Services. The Board will then, consistent with the requirement of due process of law, take such further action, consis- tent with the decision herein, to effectuate the policies of the Act. 4. That the State of Maine, its representatives and agents, cease and desist from refusing to bargain with the Maine State Employees Asso- ciation over said Association's following proposals to bargain over the effects, resulting from the State's unilateral change from three to two Sanitarians in the Board of Cosmetology, upon mandatory sub- jects of bargaining. The State shall, within ten calendar days of receipt of a written request to meet and bargain thereon, bargain over the following proposals: a. That Mr. Robert Willette operate out of the Augusta office and be reimbursed for expenses on that basis. b. That Mr. Willette be provided a state vehicle for his work. -27- ______________________________________________________________________________ Dated at Augusta, Maine, this 22nd day of December, 1982. MAINE LABOR RELATIONS BOARD /s/___________________________________ Edward H. Keith Chairman /s/___________________________________ Don R. Ziegenbein Employer Representative /s/___________________________________ Harold S. Noddin Employee Representative The parties are advised of their right, pursuant to 26 M.R.S.A. Section 979-H(7), 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. -28- ______________________________________________________________________________