STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 82-15, 82-16, and 82-22
Issued: September 27, 1982
_____________________________________
)
ASSOCIATED FACULTIES OF THE )
UNIVERSITY OF MAINE/Maine )
Teachers Association/National )
Education Association )
)
and )
)
UNIVERSITY OF MAINE PROFESSIONAL )
STAFF ASSOCIATION/Maine Teachers )
Association/National Education )
Association )
)
and )
)
MAINE TEACHERS ASSOCIATION d/b/a ) DECISION AND ORDER
Associated COLT Staff of the )
University of Maine/Maine Teachers )
Association/National Education )
Association, )
)
Complainants, )
)
v. )
)
UNIVERSITY OF MAINE, )
)
and )
)
SCOTT ANCHORS, Complex Director, )
University of Maine at Orono, )
)
Respondents. )
_____________________________________)
These are prohibited practices cases filed pursuant to 26 M.R.S.A.
1029(2), the University of Maine Labor Relations Act ("Act"). The complain-
ants, Associated Faculties of the University of Maine ("AFUM"), University of
Maine Professional Staff Association ("UMPSA"), and Maine Teachers Association
d/b/a Associated COLT Staff of the University of Maine ("COLT") all filed
their complaints with the Maine Labor Relations Board ("Board") on November 4,
1981. AFUM and UMPSA allege in their complaints that the University of Maine
violated Section 1027(1)(E) of the Act by, unilaterally and without first
negotiating over the same with the bargaining agents, raising the annual
athletic locker rental fee at the University
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of Maine at Orono from $10.00 to $12.00, for bargaining unit members effective
September 1, 1981. AFUM, UMPSA, and COLT allege in their complaints that the
University of Maine violated Section 1027(1)(E) of the Act by, unilaterally
and without first negotiating over the same with the bargaining agents,
increasing the annual parking permit fee for unit employees at the University
of Southern Maine from $1.00 to $5.00, effective September 1, 1981. UMPSA
further alleges in its complaint that the University of Maine violated Section
1027(1)(E) of the Act by, unilaterally and without first negotiating the same
with the bargaining agent, changing a past practice of requiring residential
Complex Directors at the University of Maine at Orono to live on-campus. The
University of Maine filed responses to the above complaints, denying that any
of its actions violated any provision of the Act.
A pre-hearing conference on Case Nos. 82-15 and 82-16 was held on
December 7, 1981, Alternate Chairman Donald W. Webber presiding. Determining
that the issues in the two cases were similar, Alternate Chairman Webber
ordered the two cases consolidated for hearing. Alternate Chairman Webber
issued a Pre-Hearing Conference Memorandum and Order on December 14, 1981,
the contents of which are incorporated herein by reference. A pre-hearing
conference on Case No. 82-22 was held on January 25, 1982, Alternate Chairman
Donald W. Webber presiding. The parties having recognized that the issue in
Case No. 82-22 is the same as an issue in both 82-15 and 82-16, Alternate
Chairman Webber ordered that all three cases be consolidated, be simultan-
eously briefed, and be decided together. Alternate Chairman Webber issued a
Pre-Hearing Conference Memorandum and Order on January 25, 1982, the contents
of which are incorporated herein by reference.
A hearing on Cases No. 82-15 and 82-16 was held on January 15, 1982,
Alternate Chairman Donald W. Webber presiding, with Employer Representative
Don R. Ziegenbein and Employee Representative Harold S. Noddin. AFUM and
UMPSA were represented by Shirley E. Randall-Bourgault, Higher Education
UniServ Director, Maine Teachers Association/National Education Association.
The University of Maine was represented by F. Paul Frinsko, Esq. The parties
entered into a stipulation of the facts relevant hereto and presented their
legal arguments through appropriate briefs which have been considered by the
Board. COLT and the University of Maine agreed to waive hearing in Case No.
82-22 and to submit their legal arguments in the same briefs noted above.
The Board, at the request of counsel for the respondent University of
Maine, deliberated these cases in a public session at the Androscoggin Law
Library, Auburn, Maine, on September 16, 1982. Advanced notice of the public
deliberation session was given to the parties by letter dated September 10,
1982.
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JURISDICTION
AFUM is the duly certified bargaining agent for the University of Maine
faculty bargaining unit. UMPSA is the certified bargaining agent for a
bargaining unit of professional and administrative staff employees of the
University of Maine. COLT is the certified bargaining agent for a bargaining
unit of clerical, office, laboratory, and technical employees of the
University of Maine. The term bargaining agent, in this paragraph, has the
meaning ascribed in Section 1022(1-B) of the Act. The University of Maine,
represented by the University of Maine Board of Trustees, is the employer,
under the provisions of Section 1022(10) of the Act. The jurisdiction of the
Maine Labor Relations Board to hear this case and to render a decision and
order herein lies in 26 M.R.S.A. 1029.
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. The Associated Faculties of the University of Maine/Maine Teachers
Association/National Education Association ("AFUM") is the certified
bargaining agent for a bargaining unit of faculty employees of the University
of Maine.
2. The University of Maine Professional Staff Association/Maine Teachers
Association/National Education Association ("UMPSA") is the certified
bargaining agent for a bargaining unit of professional and administrative
staff employees of the University of Maine.
3. The Maine Teachers Association d/b/a Associated COLT Staff of the
University of Maine/Maine Teachers Association/National Education Association
("COLT") is the certified bargaining agent for a bargaining unit of clerical,
office, laboratory, and technical workers who are employees of the University
of Maine.
4. The University of Maine, represented by the University of Maine Board
of Trustees, is the employer of all of the above employees represented by
AFUM, UMPSA, and COLT.
5. Employees at the University of Maine at Orono, included in the bargain-
ing units represented by AFUM and UMPSA, use athletic lockers located in
Memorial Gymnasium during non-working time, from 6:30 a.m. to 11:30 p.m.,
excepting Fridays and Saturdays when the lockers are available from 6:30 a.m.
to 10:00 p.m.
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6. Effective September, 1981, rental prices for the athletic lockers,
mentioned in paragraph 5 hereof, were increased as follows: full-sized lockers
in locker rooms from $10.00 to $12.00, full-sized lockers in corridor in field
house from $8.00 to $9.00, and box lockers in locker rooms from $6.00 to
$7.00.
7. The University, through its Department of Recreational Sports, issues
applications for locker rentals upon request to all persons, including
bargaining unit members. The first fee to be charged by the University for
lockers at U.M.O. occurred in September, 1978. In 1978, the prior locker fees
of $10.00, $8.00, and $6.00 were initiated to defray operating costs. The
September, 1981, increase in locker fees was developed by the Director of
Recreational Sports, reviewed with the Committee of the Department of
Recreational Sports, and approved by the Director of Physical Education and
Athletics, an administrator of the University of Maine at Orono.
8. Neither AFUM, UMPSA nor the University of Maine raised the matter of
locker rental fees in the proposals for successor collective bargaining
agreements. The negotiated collective bargaining agreement, in effect from
September 14, 1979 to June 30, 1981, did not contain a provision on locker
rental fees.
9. AFUM and UMPSA verbally asked the Chief Negotiator for the Trustees
to negotiate the locker rental fee increase; the Chief Negotiator for the
Trustees has refused and continues to refuse to negotiate the increase in the
locker rental fee charged.
10. The University of Maine increased the parking permit fee charged to
all users, including bargaining unit members, from $1.00 annually to $5.00
annually, effective September 1, 1981, at the University of Southern Maine.
11. The University of Maine has refused to negotiate over parking permit
fees, including the increases at the University of Southern Maine, effective
September 1981, with complainants AFUM, UMPSA, and COLT. The aforesaid
parking permit increases were set forth at page 2 of a letter from President
Robert L. Woodbury, of the University of Southern Maine to "Members of the
University Community" dated August 6, 1981, as follows: "I have decided to
adopt the following charges which were approved by the Chancellor and/or Board
of Trustees effective September 1, 1981. (1) Parking permit charge per
vehicle - $5 (although the committee recommended a $10 permit charge, I
endorsed $5 for this year with probable increases to $10 over three years)."
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12. At the University of Southern Maine, each newly hired employee
receives a copy of Motor Vehicle Rules and Regulations and an application for
a parking permit. For successive years, employees, including bargaining unit
members, receive applications for parking permits through the campus mail.
13. The issue of parking permit fees was not raised in proposals for
negotiations for a successor collective bargaining agreement by the University
of Maine nor by AFUM and UMPSA.
14. Negotiations for an initial collective bargaining agreement, for the
bargaining unit represented by COLT as its bargaining agent, commenced on
March 5, 1981. No final agreement had, been reached. Impasse had been
reached and COLT had filed a Request for Fact Finding.
15. The University, through its Chief Negotiator, on or about
November 23, 1981, refused to negotiate the increase in the parking permit fee
with COLT and has been collecting the $5.00 annual parking permit fee from all
users of the University of Southern Maine parking facilities, including but
not limited to members of the bargaining unit represented by COLT.
16. An opinion survey of bargaining unit employees, conducted by the
Office of the Vice President for Finance and Administration at the University
of Southern Maine, on or about November 10, 1978, indicated that following
percentages of unit employees responding to a questionnaire, use their own
motor vehicles to travel to work:
Portland Campus Gorham Campus
Faculty 95.3% 96.5%
Professional Staff 93% 100%
Classified Employees 90.8% 92.7%
17. A parking shortage exists at the University of Southern Maine. The
working papers for the Parking and Traffic Plan at the University of Southern
Maine, compiled by the Office of Finance and Administration, U.S.M., from 1976
to 1978, indicates the following:
Portland campus
Employees in need of on-campus parking 450
Available, designated faculty/staff slots 247
Students in need of on-campus parking 200 - 1200
Available parking for students (slots) 453
Employees not included in lot designation include MPBN, Cooperative Exten-
sion Service and ARA employees.
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Gorham Campus
Employees in need of on-campus parking 300
Available, designated faculty/staff slots 158
Students in need of on-campus parking:
Resident students 340
Commuter students 200 - 1200
Total students 540 - 1540
Available parking for students (approximately) 500
18. The same source, mentioned in paragraph 17 hereof, found that off-
campus parking in Portland was virtually nonexistent because streets surround-
ing the campus are either time zoned or designated as "no parking" areas by
the City of Portland.
19. The position of Complex Director is a position in the bargaining unit
represented by UMPSA.
20. The job description for the position of Complex Director, since at
least 1974, has included the requirement set forth in paragraph VI of
"University of Maine at Orono, Department of Residential Life, Complex
Director, Job Description" (Complainant's Exhibit No. 9), to wit: "Special
Requirement The position requires that Complex Directors live on campus."
21. In 1977, the University allowed a Complex Director to reside off-
campus on a trial basis. From 1978 to June of 1981, Complex Directors have
resided on-campus.
22. On or about July 1, 1981, Scott Anchors, a Complex Director, was
given permission to live off-campus by the Director of Residential Life, and,
thereupon, moved off-campus.
23. The negotiated collective bargaining agreement, between the
University of Maine and UMPSA in effect from September 30, 1980 to June 30,
1981, does not contain a provision pertaining to the residency of Complex
Directors.
24. Neither UMPSA nor the University has ever negotiated the residency of
Complex Directors.
25. No prior notice was given by the University to UMPSA with respect to
the facts set forth in paragraph 2 of a letter from Tracy B. Bigney, Associate
Director for Labor Relations, UMO, to Milton Wright, Maine Teachers
Association, dated August 13, 1981 (Complainant's Exhibit No. 2), as follows:
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"Approval for a Complex Director to live off campus.. Scott Anchors,
a Complex Director, has been given permission to live off-campus. Form-
erly all CD's were required to live on campus because the CD was the
only full-time professional employee in the complex. The situation has
changed, so that there are now a number of full-time, professional Resi-
dence Directors, who are required to live in the residence halls. The
Director of Residential Life has notified all CD's that in any complex
where more than one full-time professional employee is in residence, he
will consider the CD's request to live off-campus and grant permission if
there appears to be sufficient supervision of the complex. However, a
newly hired CD would probably be required to live on campus for at least
one year to gain familiarity with the complex."
DECISION
The University of Maine Labor Relations Act ("Act"), 26 M.R.S.A. Section
1021, et seq., controls the relationship between the University of Maine and
the bargaining agents representing University employees for collective
bargaining purposes. Section 1026(1)(C) of the Act sets forth, as mandatory
subjects of bargaining, the topics of "wages, hours, (and] working
conditions." Concomitant with the duty to bargain over the mandatory subjects
of bargaining is a prohibition against the employer's making unilateral
changes in mandatory subject areas. Teamsters Local Union No. 48 v.
University of Maine, M.L.R.B. No. 78-16 and 78-20, at page 5, (6/29/79). The
employer may implement unilateral changes under four recognized exceptions to
the rule. Maine State Employees Association v. State of Maine, M.L.R.B. No.
78-23, at page 4, (7/15/78). None of the exceptions is alleged by the
University nor do we find that any exception applies to the facts before us in
connection with parking or athletic locker fees. We will discuss waiver, as
raised by the University, when we discuss Complex Director residency, infra.
The three complaints, consolidated into one case for the purposes of
hearing and decision, herein allege that the University of Maine violated
Section 1027(1)(E) of the Act by making unilateral changes in (1) the annual
parking fee at the University of Southern Maine, (2) the annual athletic
locker rental fee at Memorial Gym at the University of Maine at Orono, and (3)
in allowing a Complex Director at the University of Maine at Orono to live
off-campus. The University does not deny that the changes were made.
Although the University, in the matter of the parking fees, argues that the
fee increase was developed through "joint participation by faculty, students,
professional staff and classified staff,"
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Brief of University of Maine, at page 2; there is no suggestion that the fee
increase was ever negotiated with any of the three complainant bargaining
agents. There is no question that the changes were unilaterally made by the
University.
The only issues remaining are whether or not the particular changes in
issue come within the ambit of the mandatory subjects of bargaining. We will
examine and discuss each issue separately in explaining our decision.
THE PARKING FEE INCREASE AT THE UNIVERSITY OF SOUTHERN MAINE
The University argues that parking facilities, provided to employees by
their employer, do not fall within the scope of "wages, hours, [and] working
conditions" and, therefore, are not a mandatory subject of bargaining. The
authority cited in support of the University's averment is Social Services
Union, Local 535 v. Board of Supervisors of Santa Barbara County, et al.,
82 Cal. App. 3rd 498 (1978). In reaching its decision, the California Court
of Appeals followed the precedent set by the federal courts in interpreting
parallel sections of the National Labor Relations Act. We, too, have often
looked to the federal courts for guidance in resolving questions of first
impression such as that presented by the parking fee issue here. Baker Bus
Service v. Edward H. Keith, Me., 428 A.2d 55, 56 n.3 (1981). While we find
the legal reasoning employed by the California Court of Appeals persuasive,
the case before us is clearly distinguishable on its facts from that before
the Social Services Court. In outlining the factual background of the case
before it, the California decision states:
"Specifically, we are required to determine whether a charge
for employee parking supplied by the agency is included within
the definition of 'wages, hours, and other terms and conditions
of employment' so as to require the 'meet and confer' process where:
(1) agency-supplied packing is available only to 'a minority' of
employees; (2) employees are not required to utilize agency-supplied
parking but may reasonably use methods other than automobile trans-
portation or other available parking; and (3) the agency action in-
volves raising the monthly parking fee from $2.50 to $4 in some cases,
and from $3.50 to $4 in others."
82 Cal. App. 3rd, at 500-501. We find dramatic and significant differences
between the facts in the case before us compared with the first two enumerated
above. In the first instance, an overwhelming majority of bargaining unit
employees drive to work at U.S.M. in their own vehicles and park in the
University parking areas.
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Secondly, as was mentioned in paragraph 17 of our findings of fact, a serious
parking shortage exists on both campuses of the University of Southern Maine,
for employees and students alike. Thirdly, very little, if any, alternate,
available, off-campus parking exists at the Portland campus.
Analyzing the facts in the case then before it, the Social Services Court
recited the following persuasive Federal precedent:
"Federal courts apply a narrower meaning to the phrase ['wages,
hours, and working conditions']. It 'is to be interpreted in a
limited sense which does not include every issue that might be of in-
terest to unions or employers . . . . In order for a matter to be
subject to mandatory collective bargaining it must materially or
significantly affect the terms or conditions of employment."
(Seattle First National Bank v. N.L.R.B., (9th Cir. 1971) 444 F.2d 30,
32-33, italics in original.) The phrase does not encompass all
'"emoluments of value" accruing out of the employment relationship and
. . . not de minimus,' (Id., at p. 33.)
In the federal courts, materiality or significance of an employer-
provided service to employees where the service is optional with the
employee is determined by the presence or absence of such facts as:
the extent to which the service materially affects the employees' liv-
ing conditions (National Labor Rel. Bd. v. Lehigh Portland Cement Co.
(4th Cir. 1953) 205 F.2d 821, 823); the presence or absence of feasible
alternatives to the employer-provided service available to the employ-
ees (National Labor Relations Bd. v. Bemis Bro. Bag Co. (5th Cir. 1953)
206 F.2d 33, 37-38; American Smelting and Refining Company v. N.L.R.B.
(9th Cir. 1969) 406 F.2d 552, 554-555; N.L.R.B. v. Package Machinery
Company (1st Cir. 1972) 457 F.2d 936, 937-938; the value of the
employer-provided service (National Labor Rel. Bd. v. Lehigh Portland
Cement Co. supra, 205 F.2d at p. 823); and the extent to which the
employer-provided service has been presented by the employer as an
alternative to cash compensation (N.L.R.B. v. Central Illinois Public
Service Company (7th Cir. 1963) 324 F.2d 916, 917, 919.)" 82 Cal. App.
3d at p. 504-505.
Applying the California Court's analysis to the facts in the case now before
us, we hold that the parking fee increase at the University of Southern Maine
materially or significantly affects the conditions of employment of the
University's employees, who are represented by the complainant bargaining
agents for purposes of collective bargaining. The facts before us, noted
above as distinguishing this case from that before the California Court,
warrant our holding that the parking fee system at U.S.M. falls within the
ambit of "conditions of employment" and, therefore, any increase in said fees
is a mandatory subject of bargaining.
Our holding is further supported by and is consistent with the decision
of the United States Supreme Court in Ford Motor Co. v. N.L.R.B., 441 U.S.
448, 60 L.Ed.2d
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420, 99 S.Ct. 1842 (1979), cited with approval State of Maine v. Maine Labor
Relations Board, Me., 413 A.2d 510, 514 (1980). The United States Supreme
Court stated:
"The case came before the Court of Appeals for the Seventh
Circuit on Ford's petition for review and the Board's cross-
petition for enforcement. That court, while adhering to its
prior decision in NLRB v. Ladish Co., 538 F.2d 1267 (1976), which
had refused enforcement of a Board order to bargain about in-
plant food prices, enforced the Board's order here because,
'under the facts and circumstances of this case, in-plant cafeteria
and vending machine food prices materially and significantly affect
and have an impact upon terms and conditions of employment and
therefore are mandatory subjects of bargaining.' 571 F.2d, at
1000. The court was particularly influenced by the lack of reason-
able eating alternatives for employees, declaring that '[t]he food
one must pay for and eat as a captive customer within the employer's
plant can be viewed as a physical dimension of one's working environ-
ment.' Ibid. . . . We affirm the judgment of the Court of Appeals
for the Seventh Circuit enforcing the Board's order to bargain."
441 U.S., at 493-494, 99 S.Ct., at 1847-1848.
We, as did the Supreme Court and the Court of Appeals for the Seventh Circuit, are
militated in reaching our above holding by the fact that little, if any,
alternate available off-campus parking exists for the U.S.M. employees,
especially at the Portland campus.
Turning to the University's averment that the parking fee increase is de
minimus because the fee is "nominal," we find that the United States Supreme
Court, in Ford Motor Co. v. N.L.R.B., supra, rejected a similar argument
proffered by the employer in that case. Noting that the individual increases
were small, the Court, nevertheless, rejected the employer's contention and
stated that, over time, the increase "can amount to a substantial sum of
money." 441 U.S., at 501, 99 S.Ct., at 1851. In the case before us, the
increase may seem small, however, over an employee's tenure, the sum could
become substantial. Furthermore, were we to hold that the parking fee
increase is not a mandatory subject of bargaining, that precedent could lead
to substantially higher unilateral increases in the future.
Finally, the University alleges that the authority granted to the
University Board of Trustees to "make rules and regulations for the control,
movement and parking of vehicles within the limits of the property owned by or
under the control of the University," permits the University to unilaterally
alter the parking fee. Cited as Ch. 532 Private & Special Laws of 1865, as
amended by Chapter 541, Section 72, Pub. Laws of 1979. Initially, it should
be noted that the 1979 amendment (Ch. 541, Section 72, of the Pub. Laws of
1979), to the University's Authority to regulate motor
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vehicle parking, was an amendment to Title 7 M.R.S.A. Section 2901, the definitional
section of the statutory chapter dealing with milk and milk products licensing
by the Department of Agriculture. Secondly, the University apparently is
arguing that the Private and Special law, allegedly amended by the Public Laws
of 1979, repeals, by implication, Section 1026(1)(C) of the University of
Maine Labor Relations Act, to the extent that employee parking fees imposed by
the University are "working conditions." It is a well-settled rule of law in
Maine that repeal by implication is not favored by the Courts. Where
possible, the Courts will give effect to both statutes, which allegedly
conflict. State v. London, 156 Me. 123, 127-128, 162 A.2d 150, 152-153
(1960), cited with approval in Blaney v. Rittall, Me., 312 A.2d 522, 527
(1973). In the case of the two statutes mentioned above, a consistent reading
of the two is as follows: the University may, by implication, set a parking
fee, however; to the extent that such fee applies to its employees, the
University must bargain over the amount of said fee with the bargaining
agent(s) representing the University's employees.
THE ATHLETIC LOCKER RENTAL FEE INCREASE AT THE UNIVERSITY OF MAINE AT ORONO.
As we indicated above, the test for whether or not a topic is a mandatory
subject of bargaining as a "working condition," under Section 1026(1)(C) of
the Act, we examine whether or not said topic significantly or materially
affects the terms or conditions of employment. In the area of the athletic
locker rental fee increase at the University of Maine at Orono ("U.M.O."),
both parties seek to analogize the athletic locker use to employer-supplied
lunchrooms in the workplace. The University cites us to Ford Motor Co. v.
N.L.R.B., 571 F.2d 993 (7th Cir. 1978). In that case, as we have noted above,
working conditions were defined as being those things which "materially and
significantly affect and have an impact upon terms and conditions of
employment." 571 F.2d, at 1000. Affirmed in the case of, Ford Motor Co. v.
N.L.R.B., 441 U.S. 448, 494, 60 L.Ed.2d 420, 99 S.Ct. 1842, 1847 (1979).
Unlike the parking situation discussed above, there is no inherent need for
University employees to use the athletic lockers. The use of the lockers
is limited to the employees' non-working time and is surely a convenience for
those employees wishing to avail themselves of the University's athletic
facilities for their own recreation and enjoyment. Furthermore, the athletic
locker use is not limited to bargaining unit employees but is available to the
general public, on
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the same "first-come, first-serve" basis as it is for said employees.
The coffee/lunch room and smoking area examples, cited by the
Complainants, at page 4 of their brief, as being allegedly "analogous" to the
issue now before us are clearly dissimilar to the use of athletic lockers
here. It is true that all three cases involve non-working hours, however;
that is where the similarity ends. In both the coffee/lunch room example and
in the smoking areas case, the employees were using employer-provided
facilities, during the work day, and without viable options to said use being
available. This last factor, the unavailability of alternate premises during
the work day, was the critical factor in both examples. Said unavailability
is not an issue in this case. The issue here surrounds University employees'
use of athletic lockers as a convenience to facilitate their recreational
enjoyment of the University's athletic facilities.
The University cites us to a recent decision of the Federal Labor
Relations Authority, in support of its position that athletic locker rental
fees are not mandatory subject of bargaining. The statute which the Authority
enforces, the Federal Service Labor-Management Relations Statute (5 U.S.C.
7101-7135), is markedly different from the Act being interpreted herein.
We would not, therefore, rely on the Authority's decisions for interpretation
of the University of Maine Labor Relations Act, as a general rule. We do,
however, find the rationale used by the Authority, in IAFF, Local 116 and
Vandenberg Air Force Base, 7 FLA No. 18, p. 123 (1981), persuasive in the case
now before us. In holding that a Union proposal, to bargain over off-duty
hunting and fishing on the employer's premises by the employees, was not a
mandatory subject of bargaining, the Authority stated:
"On its face, the disputed proposal in the present case does
not concern personnel policies, practices, or matters affecting
working conditions of unit employees. Similarly, as to the effect
of the proposal, no relationship between the recreational activities
of off-duty employees and their dependents and employment as fire-
fighters at the Base is adverted to by the Union or is otherwise
apparent. That is, nothing in the proposal itself or elsewhere in
the record before the Authority indicates that allowing employees
and their dependents to hunt and fish at the Base would relate to
conditions of employment. In particular, the Union has not provided
the Authority with any explanation as to the intent of the proposal
which would support a finding that such a relationship exists,"
7 FLRA, at pp. 124-125
Other than the attempt to argue to analogy, discussed above, the Complainants
have not established nor attempted to argue that any relationship exists
between the
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employee use of athletic lockers and working conditions. No such nexus having
been alleged, much less a showing of how athletic locker use has a "material
and significant" effect upon working conditions; we must hold that the issue
of athletic locker rental fees at the University of Maine at Orono is not a
mandatory subject of bargaining under the Act.
THE DECISION TO ALLOW A COMPLEX DIRECTOR AT THE UNIVERSITY OF MAINE AT ORONO
TO LIVE OFF-CAMPUS.
At the outset, it should be noted that Respondent Scott Anchors was
joined in this action not because of any allegation that he violated the Act
but rather because our decision herein could have a significant effect on his
working conditions.
In allowing Mr. Anchors to live off-campus, the University clearly made a
change in the complex director's working conditions. Such a unilateral change
would, normally, constitute a violation of Section 1027(1)(E) of the Act. The
relevant collective bargaining agreement, between Complainant UMPSA and the
University, states, in Article 12, "Job Descriptions," as follows:
"C. When significant changes in the unit members's assigned
responsibilities occur the University, with input from the
unit member, shall promptly revise the official job descrip-
tion."
The requirement that a complex director live on-campus is found as paragraph
VI, "Special Requirement," of the complex director's job description. As was
noted in paragraph 25 of our findings of fact, the advent of professional
residence hall directors resulted in significant changes in the complex
directors' responsibilities. Said change was discussed with Mr. Anchors and
he was allowed to live off-campus. All of the requirements of Article 12(c)
were followed.
We have, in the past, held that a party may waive its right to demand
bargaining over a mandatory subject. To be an effective bar to bargaining,
the waiver must be "unmistakably clear." Council 74, AFSCME v. City of
Bangor, M.L.R.B. No. 80-50, at p. 4 (9/22/80). In this case, we hold that, by
agreeing to Article 12(C) in the relevant collective bargaining agreement,
UMPSA waived its right to demand bargaining over the University's unilateral
change in the complex directors' job description. Said change followed the
condition precedent set forth in Article 12(C) and was made in accord with the
procedure mandated
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by said provision. The University complied with the strictures of the
collective bargaining agreement in making the change and, therefore, did not
violate the Act in so doing.
CONCLUSION
We hold that, by unilaterally increasing the annual parking permit fee at
the University of Southern Maine from $1.00 to $5.00 without first negotiating
over the same with the bargaining agents representing its employees, the Uni-
versity of Maine violated Section 1027(1)(E) of the University of Maine Labor
Relations Act. Furthermore, we hold that Mr. Scott Anchors violated no part
of the aforementioned Act by moving off-campus at the University of Maine at
Orono. Finally, we hold that the University of Maine violated no part of the
Act by either increasing the annual athletic locker rental fee at the
University of Maine at Orono or by allowing a Complex Director to live off-
campus at the University of Maine at Orono, without first negotiating over the
same with the bargaining agents representing its employees in both instances.
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
the provisions of 26 M.R.S.A. Section 1029(3), it is hereby ORDERED:
1. That the University of Maine, its representatives and agents,
cease and desist from charging an annual parking fee of Five
($5.00) Dollars, per user at the University of Southern Maine,
for bargaining unit employees in the bargaining units repre-
sented by AFUM, UMPSA, and COLT.
2. That the University of Maine, its representatives and agents,
restore the One ($1.00) Dollar annual parking fee, per user at
the University of Southern Maine, for bargaining unit employees
in the bargaining units represented by AFUM, UMPSA and COLT.
3. That the University of Maine, its representatives and agents, rebate
to each bargaining unit employee, at the University of Southern
Maine, in the bargaining units represented by AFUM, UMPSA, and COLT,
any amount received by the University from each unit employee for the
annual parking fee in excess of One ($1.00) Dollar per annum.
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4. That those portions of the complaints filed by AFUM and UMPSA
on November 4, 1981, alleging that the University of Maine
violated the Act by increasing the athletic locker rental fees at
the University of Maine at Orono without first negotiating over
the same with AFUM and UMPSA, be and hereby are dismissed.
5. That Count 3 of the complaint filed by UMPSA on November 4, 1981,
be and hereby is dismissed.
Dated at Augusta, Maine, this 27th, day of September, 1982.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
Donald W. Webber, Alternate 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
1029(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.
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