STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 83-11
ISSUED: March 29, 1983
_______________________________
)
BANGOR EDUCATION ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
BANGOR SCHOOL COMMITTEE, )
)
Respondent. )
_______________________________)
This is a prohibited practices case, filed on November 12, 1982 pursuant
to 26 M.R.S.A. Section 968(5)(B) by the Bangor Education Association
(Association). The Association alleges in its complaint that the Bangor
School Committee (Committee) violated 26 M.R.S.A. Section 964(1)(E) when,
after expiration of the parties' collective bargaining agreements, it refused
to pay increases in Blue Cross/Blue Shield major medical insurance premiums.
The School Committee filed an answer to the complaint on December 6, 1982,
denying that its refusal to pay the increased health insurance premiums
violated any provision of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. Section 961, et seq. (Act).
A pre-hearing conference on the case was held on December 29, 1982,
Alternate Chairman Donald W. Webber presiding. The parties stipulated the
facts of the case at the pre-hearing conference and agreed that the sole issue
for determination was a legal issue, which the parties framed as follows:
"Whether upon the expiration of the collective bargaining agreement the
Bangor School Committee is required to pay the increase in Blue Cross/
Blue Shield major medical insurance premiums?"
The parties agreed to file briefs on the legal issue and also agreed that in
the event this issue is resolved in favor of the Association, they will meet
to determine the amounts of money owed to the employees. The parties' stip-
ulations and agreements are set forth in Alternate Chairman Webber's Pre-
Hearing Conference Memorandum and Order, the contents of which are incor-
porated herein by reference.
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All briefs in the matter were filed by March 1, 1983. The Association
was represented by UniServ Director Shirley E. Randall-Bourgault, and the
School Committee by Stuart J. Novick, Esq. After reviewing the pleadings and
briefs filed in the matter, the Labor Relations Board proceeded to deliberate
over the case, Alternate Chairman Webber presiding, with Alternate Employer
Representative Thacher E. Turner and Employee Representative Harold S. Noddin.
JURISDICTION
The Association is the bargaining agent within the meaning of 26 M.R.S.A.
Section 968(5)(B) for seven bargaining units of School Committee employees,
including the Teachers, Assistant Teachers, Administrators, Food Service
Employees, Custodians, Maintenance Workers, and Secretaries/Clerks bargaining
units. The School Committee is a public employer as defined in 26 M.R.S.A.
Section 962(7). The jurisdiction of the Maine Labor Relations Board to con-
sider this case and render a decision and order lies in 26 M.R.S.A. Section
968(5).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1. In November, 1980 the Association and the School Committee entered
into a collective bargaining agreement for the Teachers, Assistant Teachers,
and Administrators bargaining units. Article VIII of this agreement, which
expired on August 31, 1982, states in pertinent part:
"The Committee will provide the following full-year insur-
ance benefits for each teacher/assistant teacher half salary or
over and for each administrator at the Committee's expense:
1. Health insurance protection equal to the MTA Health
Plan (BSE High Level Blue Cross/Blue Shield and Major
Medical). In addition the Committee will pay the
additional premiums for any teacher/assistant teacher
half salary or over and for each administrator who
elects two-person or family-plan coverage. Any employee
whose spouse receives either two-person or full family
coverage as an employee of any Bangor City Department
including the School Department is not eligible for dual
health insurance under this Article."
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Negotiations for a successor agreement for the three bargaining units began in
April, 1982 and are still continuing.
2. The last agreement negotiated for the Food Services Employees,
Custodians, Maintenance Workers, and Secretaries/Clerks bargaining units
expired on June 30, 1982. Article XIV of this agreement states in pertinent
part:
"The Committee will provide the following, full-year insurance
benefits for each permanent, full-time employee, at the Committee's
expense:
Section 1
Health insurance protection equal to the MTA Health Plan
(UCR High Level Blue Cross/Blue Shield/Major Medical). In
addition, the Committee will pay the additional premiums for any
employee who elects two (2) person or family-plan coverage. Any
employee whose spouse receives either two (2) person or full-
family coverage as an employee of any Bangor City Department,
including the School Department, is not eligible for health in-
surance under this Article."
Negotiations for a successor agreement began in May, 1982, and are continuing.
3. On August 31, 1982 the Superintendent of Schools distributed a letter
to all School Committee employees. The letter notes that the two collective
bargaining agreements had expired and that negotiations for successor agree-
ments were continuing. The letter states in pertinent part that since the
rates for health insurance coverage had increased effective September 1, 1982
"it will be necessary for those employees of the Bangor School Department who
wish continued coverage to authorize payroll deductions to cover the differ-
ence between the rates in effect under the prior labor agreements and the new
rates."
4. Forms authorizing payroll deductions for the increased health insur-
ance rates were distributed to the employees on September 7, 1982. According
to the form, authorization of the following payroll deductions had to be done
on September 7th if the employee wished continued health insurance coverage:
PLAN "E" "JCR" PLAN
(Teachers) (Hourly Employees)
Deduction Deduction Deduction Deduction
Each of Each of Each of Each of
21 Paydays 26 paydays 26 paydays 52 paydays
Individual $ 4.87 $ 3.93 $ 2.90 $ 1.45
Two Person 10.41 0.41 6.18 3.09
Family 12.79 10.33 7.49 3.74
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Beginning in September, 1982 and continuing on each payroll thereafter, all
employees enrolled in a health insurance plan provided by the expired agree-
ments have had deducted from their salaries amounts equivalent to the increase
in Blue Cross/Blue Shield major medical insurance premiums.
DECISION
At issue is the question whether the School Committee was required to pay
the increase in health insurance premiums after the collective bargaining
agreements had expired and while negotiations for successor agreements were
continuing. Because of the School Committee's agreement in the expired con-
tracts to pay the entire amount of the premiums, we find that it was required
to pay the increase. Its unilateral change in the status quo established by
the expired agreements violated Sections 964(1)(A) and 964(1)(E) and will be
corrected by remedies necessary to effectuate the policies of the Act.
The law prohibiting unilateral changes once a contract has expired is
clear: "It is a well-established rule of labor law that an employer may not
unilaterally alter the terms and conditions of employment after the expiration
of a collective bargaining agreement." Lane v. Board of Directors of M.S.A.D.
No. 8, 447 A.2d 806, 809-810 (Me. 1982); see also, Easton Teachers Association
v. Easton School Committee, MLRB Case No. 79-14 at 3-5 (March 13, 1979). The
rationale for this law is that a unilateral change in a mandatory subject of
bargaining "is a circumvention of the duty to negotiate which frustrates the
objectives of [the duty] much as does a flat refusal" to bargain. NLRB v.
Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed. 2d 230 (1962). Unilateral
changes thus contravene the duty to bargain in violation of Section 964(1)(E)
and result in interfering with the exercise of employee bargaining rights in
violation of Section 964(1)(A).[fn]1 Lane v. Board of Directors of M.S.A.D.
No. 8, 447 A.2d at 810.
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1/ Section 964(1)(E) prohibits public employers from "[r]efusing to bargain
collectively with the bargaining agent of its employees as required by
section 965." Section 965 requires that public employers "negotiate in
good faith with respect to wages, hours, and working conditions."
Section 964(1)(A) prohibits public employers from "[i]nterfering with,
restraining or coercing employees in the exercise of rights guaranteed in
section 963." Section 963 guarantees the rights of public employees to
bargain and to be represented by bargaining agents of their own choice.
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The terms and conditions of employment which cannot be unilaterally
changed are those established by the expired agreement:
". . . it is clear that an expired collective bargaining
agreement continues to define the status quo as to wages and
working conditions, and that '[t1he employer is required to
maintain that status quo . . . until the parties negotiate to a
new agreement or bargain in good faith to impasse.' " (Citations
omitted).
NLRB v. Cauthorne, 691 F.2d 1023, 1025 (D.C. Cir. 1982). Article VIII in the
expired teachers contract and Article XIV in the expired support staff
contract therefore define the status quo with regard to health insurance
premium payments, and both Articles state that the School Committee "will
provide" health insurance benefits for the employees and in addition "will
pay the additional premiums" for two-person or family-plan coverage. The
status quo established by the expired contracts thus is that the School
Committee pays 100% of the health insurance premiums, not, as argued by the
School Committee, that it pays only a certain dollar amount or percentage of
the premiums. See, e.g., Council 74, AFSCME v. Ellsworth School Committee,
MLRB Case No. 81-41 at 7-8 (July 23, 1981) (past practice established that
school committee would pay 100% of health insurance premiums). The fact that
the School Committee agreed to pay the full cost of the health insurance
distinguishes this case from the salary increment holding in the Easton
Teachers Association case, where the school committee agreed only to pay
specified salaries. The School Committee could have similarly agreed to pay
only specified amounts for health insurance in Articles VIII and XIV, but this
it did not do.
The law is of course settled that health insurance payments are an aspect
of employee wages and a term and condition of employment which survives
expiration of the contract and which may not be unilaterally changed. See,
e.g., Hen House Market No. 3, 175 NLRB 596 (1969), enforced, 428 F.2d 133, 137
(8th Cir. 1970). We find that by requiring that the employees pay the
increase in the cost of health insurance without first bargaining about the
matter with the employees' bargaining agent, the School Committee unilaterally
changed the status quo in violation of Section 964(1)(A) and (E). In essence,
the School Committee unilaterally changed the health insurance plan from one
in which the School Committee paid all the costs to one in which the employees
were required to make contributions, a change which can properly be
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accomplished only through the process of collective bargaining.[fn]2
We will order pursuant to Section 968(5)(C) that the School Committee
cease and desist from changing the terms and conditions of employment defined
in the expired collective bargaining agreements without first negotiating such
changes with the Association. Since a properly designed remedial order seeks
"a restoration of the situation, as nearly as possible, to that which would
have obtained" but for the prohibited practice, Caribou School Dept. v.
Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), we will also
order that the School Committee take the affirmative action of reimbursing
each employee the total amount deducted from the employee's paychecks for
health insurance from September.1, 1982 until such time as the parties have
negotiated new agreements or bargained in good faith to impasse over the
health insurance payments issue. This remedy is necessary to restore the
status quo and to make the affected employees whole. If these amounts are not
reimbursed within 10 days of the date of this Decision and Order, then
interest on the amount due each employee is to begin accruing as of that date
at a per annum rate of 16%, computed on a quarterly basis in accordance with
the formula set forth in Council 74, AFSCME v. City of Bangor, MLRB Case No.
80-41 at 11-12 (Sept. 24, 1980), affirmed, 449 A.2d 1129, 1136-1l37 (Me. 1982).
These remedies are necessary to effectuate the policies of the Act.
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 26 M.R.S.A. Section 968(5), it is ORDERED:
That the Bangor School Committee and its agents and representatives:
1. Cease and desist from unilaterally changing any term or condition
of employment defined in the expired collective bargaining agree-
ments without first notifying and bargaining with the Association
about the change.
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2/ The School Committee does not urge that any of the recognized exceptions
to the rule prohibiting unilateral changes are present in this case. See,
e.g., Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d at 810, n.2.
We note that there is no record evidence that any of these exceptions were
in fact present when the School Committee made the unilateral change.
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2. Take the following affirmative action necessary to effectuate
the policies of the Act: make the affected employees whole
by reimbursing each employee for the total amount deducted from
the employee's paycheck for health insurance during the period
from September 1, 1982 until such time as new collective bargaining
agreements are negotiated or impasse is reached as a result of good
faith negotiations over the issue of health insurance payments.
If the reimbursements are not made within 10 days of the date of
this Decision and Order then interest is to begin accruing in
accordance with the procedure set forth in the Decision.
Dated at Augusta, Maine this 29th day of March, 1983.
MAINE LABOR RELATIONS BOARD
/s/_________________________________
Donald W. Webber
Alternate Chairman
/s/_________________________________
Thacher E. Turner
Alternate Employer Representative
/s/_________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right, pursuant to 26 M.R.S.A. Section
968(5)(F), to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80-B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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