STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-19
Issued: July 23, 1984
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
STATE OF MAINE, )
)
Respondent. )
____________________________________)
The question presented in this prohibited practices case is
whether the State of Maine (State) unilaterally changed practices
related to the filing of employee job reclassification requests in
violation of its duty to bargain. We find that an impermissible
unilateral change has occurred, and order appropriate remedies.
The Maine State Employees Association (MSEA) filed its prohibited
practices complaint on February 3, 1984, alleging that the State had
unilaterally changed employee wages, hours and working conditions by
issuing a personnel bulletin which changed practices concerning the
filing of reclassification requests. The State filed an answer on
February 27, 1984, denying that it had made any unilateral changes
in the terms and conditions of employment. The statute pursuant to
which this case arises is the State Employees Labor Relations Act,
26 M.R.S.A. 979, et seq. (Act).
A pre-hearing conference on the case was held on March 12, 1984,
Alternate Chairman Donald W. Webber presiding. On March 20 Alternate
Chairman Webber issued a Pre-Hearing Conference Memorandum and Order,
the contents of which are incorporated herein by reference.
Hearings were held on April 24 and 26, 1984, Chairman Sidney W.
Wernick presiding, with Employer Representative Thacher E. Turner and
Employee Representative Harold S. Noddin. MSEA was represented by
Ann R. Gosline, Esq., and the State by Susan Farnsworth, Esq. The
parties were given full opportunity to examine and cross-examine
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witnesses, introduce evidence, and make argument. Both parties filed
post-hearing briefs.
JURISDICTION
MSEA is the bargaining agent within the meaning of 26 M.R.S.A.
979-H(2)(Supp. 1983-84) for five State employee bargaining units.
The State is the public employer defined in 26 M.R.S.A. 979-A(5)
(Supp. 1983-84). The jurisdiction of the Maine Labor Relations Board
to hear this case and render a decision and order lies in Section
979-H(2) & (3)(Supp. 1983-84).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1. On July 22, 1983 the Governor issued an Executive Order con-
cerned with improving the State's job classification system. Among
other things, the Executive Order noted that certain weaknesses in
the State's personnel system had been identified, and directed State
agencies and departments to assist the Department of Personnel to
ensure that job classifications match the work required and that
employees are properly assigned to those jobs.
2. As a result of the Executive Order, the Department of Per-
sonnel issued on August 24, 1983 Personnel Bulletin 4.3, which "pro-
vides procedures for consistent classification management within
authorized classification assignments and personal services authori-
zation and funding." The part of the Bulletin at issue in this case
is Paragraph B of Section 1, which deals with employee job reclassi-
fication requests:
"Employee requests for job audits are governed by
contract and/or Personnel Law and Rules. Upon
receiving a request from an employee, the super-
visor shall immediately act to ass.ure that the
employee's work is within the assigned job class-
ification or modify the work so that it is within
the assigned job classification, reducing or elim-
ating the time the employee is working out of
classification."
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The State did not notify MSEA or give it the opportunity to bargain
about the bulletin prior to its issuance.
3. Article XXX of the collective bargaining agreements between
MSEA and the State governs the issue of job reclassifications. That
Article establishes a number of rights regarding the filing of reclass-
ification requests including the following:
a) Employees may file reclassification requests.
b) MSEA or the State may appeal the Personnel
Commissioner's decision regarding a reclassification
request to final and binding arbitration.
c) Reclassification decisions shall be effective
as of the date of written initiation of the request
and "shall be implemented retroactively when the funds
are provided pursuant to budgetary procedures."
Reclassification is defined in the Article as the reassignment "of a
position or group of positions to an occupational classification which
is appropriate for compensation and employment purposes."
4. A State employee initiates a reclassification request by
filling out a Form FJA-1 and submitting it to his or her supervisor.
The Form lists the duties currently being performed by the employee,
states the position to which the employee is seeking to be reclassified,
and provides information about the employee's current position. After
being reviewed by the supervisor and the agency's personnel officer
the Form is forwarded to the Department of Personnel, which conducts
an audit of the employee's position and makes a decision regarding
the reclassification request. This decision may then be appealed to
final and binding arbitration pursuant to Article XXX of the contracts.
If the reclassification request is granted, the employee is moved to
the new position and paid retroactively to the time when the request
was initiated if the new position is at a higher pay range than the
employee's former position. If the request is denied, the employee
stays in his or her current position.
5. Prior to implementation of Bulletin 4.3, an employee con-
tinued to perform all the duties listed in the FJA-1 until such time
as the request was finally decided, which can take a number of
months. This practice was changed by Bulletin 4.3 because Paragraph B
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requires upon the filing of an FJA-1 that supervisors strip away imme-
diately any duties which do not fall within the employee's current job
classification.
6. This change in practice significantly affects the wages and
working conditions of employees who file FJA-1's in several respects.
First, the taking away of duties which may be outside the current
classification simply for the reason that an employee has filed an
FJA-1 eliminates duties which the employee may have performed for a
lengthy period of time and thus changes the employee's working con-
ditions. Second, the immediate taking away of duties creates additional
risks of an unfavorable decision by the Department of Personnel when
it reviews the reclassification request. Prior to issuance of Bulletin
4.3 the Department of Personnel usually considered the duties listed
in the FJA-1 to be permanent duties, and employees who had performed
duties outside their job classification for a year or more and who
filed an FJA-1 were reclassified in most cases. Now the listed duties
are not necessarily considered permanent and employees are reclassified
only if the Department of Personnel determines that their additional
duties are permanently assigned. This means that Paragraph B reduces
an employee's chances of being reclassified to a position with a higher
rate of pay and also his or her chances or receiving retroactive pay
pursuant to the contract. Finally, the taking away of duties jeopar-
dizes payments of retroactive pay even to employees who are reclassi-
fied. If an employee is not performing additional duties during the
period when the reclassification request is being reviewed, then his
or her entitlement to retroactive pay is questionable even when the
request is granted.
7. The purposes of Bulletin 4.3 are to decentralize personnel
functions to state agencies, to reduce funding requests resulting
from reclassifications, and to ensure that agencies keep their
employees in the agency's authorized job classifications. In past
years over 500 reclassification requests were filed each year, and
a majority of those requests were granted. Frequently an agency in
which a reclassification has been approved does not have sufficient
funds to pay the higher rate of pay, so it must submit a request for
additional funding to the Legislature. Over $1 million in requests
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for reclassification appropriations were submitted to the Legislature
during the last biennium, all of which were approved. Misclassifica-
tion of employees in the state job classification system is a problem;
an Arthur Young study of the reclassification system issued in July
1983 found that over 25% of the employees in 31% of the classifications
were misclassified, excluding single employee classifications. The
number of FJA-1's filed by employees has diminished since Bulletin 4.3
was implemented, and about 50% of the requests are now being approved
by the Department of Personnel.
8. The five collective bargaining agreements between MSEA and
the State expired on June 30, 1983, and negotiations for successor
agreements have continued since that time. The parties stipulated
during the hearing of the present case that we are to decide the case
as if the agreements were in force by their own terms. The subject
of the employer's right to change job duties was not discussed during
negotiations for these agreements.
DECISION
This case presents the question of whether Paragraph B in Section
1 of Bulletin 4.3 changes employee wages, hours and working conditions
so that the State's unilateral implementation of the paragraph violates
its duty to bargain.[fn]1 There is no question that the paragraph was
implemented unilaterally; the State issued the bulletin without prior
notice to MSEA, the employees' bargaining agent. We find that the
paragraph improperly changes the terms and conditions of employment
of those employees who file reclassification requests.
The facts of the case are not disputed. An Arthur Young study
issued in July 1983 found that a significant percentage of state
employees are misclassified. On July 22, 1983 the Governor issued
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1 26 M.R.S.A. 979-D(1)(1974) imposes the duty to bargain on
the State. Section 979-D(1)(E) defines the mandatory subjects of
bargaining about which the State must negotiate as "wages, hours,
working conditions, and contract grievance arbitration." The rule
prohibiting unilateral changes in mandatory subjects of bargaining
is a venerable principle of labor law. See, e.g., NLRB v. Katz,
369 U.S. 736, 743 (1962); State v. Maine Labor Relations Board,
413 A.2d, 510, 514-15 (Me. 1980).
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an Executive Order directing State agencies and departments to assist
the Department of Personnel in ensuring that job classifications match
the work required and that employees are properly assigned to those
jobs. About a month later the Department of Personnel issued Bulletin
4.3. Prior to issuance of the bulletin over 500 reclassification
requests were filed annually, a majority of which were granted, and
over $1 million for reclassification appropriations were approved by
the Legislature during the last biennium. The reclassification articles
in the collective bargaining agreements provide the right to file
reclassification requests, and an employee initiates such a request by
filling out an FJA-1 and submitting it to his or her supervisor.
Prior to issuance of Bulletin 4.3 employees continued to perform
all job duties listed in the FJA-1 until their requests were finally
decided, although this practice is nowhere spelled out in the agree-
ments. This practice was changed by Paragraph B of the bulletin,
which requires supervisors to review the job duties listed in the
FJA-1 and to strip away immediately any duties which do not fall
within the employee's current job classification. The purpose of
the bulletin is to decentralize personnel functions, to reduce funding
requests for reclassifications, and to ensure that agencies keep their
employees within the agency's authorized job classifications. The
number of FJA-1's filed has diminished since the bulletin was issued,
and about 50% of the requests are now being approved by the Department
of Personnel. In February 1984 MSEA filed a charge alleging that
Paragraph B unilaterally changed wages, hours and working conditions.
The State's first defense is that while Paragraph B may change
existing practice, it does not significantly change the terms and
conditions of employment so as to invoke the duty to bargain. We do
not agree. The taking away of duties as required by Paragraph B does
change established terms and conditions of employment in several ways.
First, the taking away of duties performed by the employee in some
cases for up to several years plainly changes the employee's working
conditions. Even though the duties taken away may be outside the
employee's job classification, the existing practice was that the
employee would continue to perform these duties until such time as the
reclassification request was finally decided, a process which can take
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a number of months. Moreover, the duties are taken away not because
of a reorganization, a change in the agency's mission, denial of a
reclassification request, or any other of the typical business reasons
which might be authorized by the bargaining agreements, but simply
because the employee has chosen to exercise a contract right. The
Legislature intended by enacting Section 979-D(1)(E) to make changes
in working conditions such as those appearing in this case negotiable.
Second, the change in practice regarding duties creates additional
risks that the Department of Personnel will deny reclassification
requests. Prior to Bulletin 4.3 the Department of Personnel usually
considered the duties listed on an FJA-1 to be permanent duties, and
employees who had performed duties outside their job classifications
for a year or more usually were reclassified. Now such duties are
immediately taken away when an FJA-1 is filed and the Department of
Personnel usually does not consider such duties to be permanently
assigned. This means that an employee's chances of being reclassified
to a position with a higher rate of pay and also his or her chances
of receiving retroactive pay pursuant to the contracts are reduced.
The taking away of the additional duties thus can have a direct effect
on the employee's wages and working conditions, and accordingly is a
negotiable matter.
Finally, the change in practice jeopardizes retroactive pay even
for employees whose reclassification requests are granted. Additional
duties are taken away after the FJA-1 is filed, so the employee may
not be entitled to receive retroactive pay for the period when his or
her request is being reviewed even when the request is ultimately
granted. Again the change in practice can have a significant effect
on wages.
The State's second contention is that the change in practice was
done "to comply with law" within the meaning of the contract's main-
tenance of benefits articles so that the change was authorized by the
agreements. The maintenance of benefits article states:
With respect to negotiable wages, hours and working
conditions not covered by this Agreement, the State agrees
to make no changes without appropriate prior consultation
and negotiations with the Association unless such change
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is made to comply with law, and existing regulations, Per-
sonnel Rules, written Policies and Procedures, General Orders,
General Operating Procedure, or Standard Operating Procedure.
The law cited by the State is found in P.L. 1983, ch. 110, 5 and in
prior enactments authorizing the state budget:[fn]2
"It shall be the responsibility of the Commissioner
of Personnel and the State Budget officer to ensure that
classified and unclassified positions are assigned to a
proper pay grade within authorized funds."
We do not agree that this general language found in many budgetary
enactments requires the State to strip away additional duties when
employees file FJA-l's. We simply find no indication in this language
of any intent to authorize an action such as Paragarph B; the fact
that the State is authorized to ensure that employees are assigned
to proper pay grades does not mean that it is authorized to make
unilateral changes in wages or working conditions. See, e.g., Super-
intending School Committee of Bangor v. Bangor Education Association,
433 A.2d 383, 386 (Me. 1981); State v. Maine Labor Relations Board,
413 A.2d at 516. We therefore find that the maintenance of benefits
article does not authorize the change caused by Paragraph B.
The State's final contention is that MSEA waived its right to
bargain about the unilateral change by agreeing in the management
rights articles that the State retains the sole and exclusive "right
to direct its work force."[fn]3 We have held in many cases that "waiver
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2 The State also urges that the "equal pay for equal work" policy
underlying the law establishing the classification system, P. & S.L.
1976, ch. 947, required the change in practice. However, we find
nothing in this law or its policy relevant to the issue before us.
3 The management rights article states:
The MSEA agrees that the State has and will continue
to retain the sole 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
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of the statutory right to bargain in a management rights clause, zipper
clause, or other waiver clause must be 'clear and unmistakable.'"
Auburn Firefighters Association v. Morrison, MLRB No. 83-10 at 6
(March 9, 1983). The contractual language must be specific before
waiver will be found, and a waiver normally is construed as applicable
only to the specific item mentioned: "a waiver should be express, and
. . . a mere inference, no matter how strong, should be insufficient."
Communications Workers of America v. NLRB, 644 F.2d 923, 928 (1st Cir.
1981).
We find no express waiver by MSEA of its right to bargain about
the change in practice of having employees perform all current duties
after they have filed an FJA-1. Neither the language regarding the
right to direct the work force nor any other language in the manage-
ment rights article can be said to be an express, unambiguous waiver
of the right to bargain about the change in practice. In addition,
the fact that the practice regarding the performance of duties is not
mentioned in the contracts does not mean that MSEA has waived the right
to bargain about changes in the practice during the term of the agree-
ments: "The failure to mention a right in a bargaining agreement does
not constitute a waiver of it even though there is a clause stating
that the contract represents the entire agreement between the parties."
Amcar Division, ACF Industries, Inc. v. NLRB, 592 F.2d 422, 429 (8th
Cir. 1979). The duty to bargain "as to subjects which were neither
discussed nor embodied in any of the terms and conditions of the con-
tract" continues throughout the term of the contract. NLRB v. Jacobs
Mfg. Co., 196 F.2d 680, 684 (2nd Cir. 1952). The subject of the State's
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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 services; 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 effi-
ciency of the government operations entrusted to them;
and to take whatever actions may be necessary to carry
out the mission of t@e agency in situations of emergency.
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right to change job duties was not discussed during negotiations for
the agreements, so MSEA did not consciously relinquish its right to
bargain about the change in practice during bargaining. We conclude
that MSEA has not waived its right to bargain about the change in
practice resulting from Paragraph B.
Having concluded that the change in practice changed wages and
working conditions, that the State was not required to make the change
in order to comply with law, and that MSEA has not waived its right
to bargain about the change, we find that the State's unilateral
implementation of Paragraph B violated its duty to bargain. Such
unilateral action "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. at 743; see also State v. Maine
Labor Relations Board, 413 A.2d at 514-15. Since unilateral action
also interferes with the free exercise of employee rights to engage
in bargaining, Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d
806, 810 (Me. 1982), we find that implementation of Paragraph B violated
Section 979-C(1)(E) and (1)(A) of the Act.[fn]4
We will order pursuant to Section 979-H(3) that the State cease
and desist from applying Paragraph B of Bulletin 4.3 without first
notifying and bargaining with MSEA about its intention to apply the
Paragraph if such bargaining is requested, and that it cease and
desist from in any like manner interfering with employees in the
exercise of rights guaranteed by Section 979-B of the Act. 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 Asso-
ciation, 402 A.2d 1279, 1284 (Me. 1979), we will also order that the
State take the affirmative action of revoking Paragraph B until such
time as that Paragraph has been negotiated with MSEA. As no other
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4 Section 979-C(1)(E)(1974) prohibits the State from "[rlefusing
to bargain collectively with the bargaining agent of its employees
as required by section 979-D," while Section 979-C(1)(A)(1974) pro-
hibits "[i]nterfering with, restraining or coercing employees in the
exercise of the rights guaranteed in section 979-B." Section 979-B
(1974) guarantees the right of state employees to engage in collective
bargaining.
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section of Bulletin 4.3 has been challenged, the remainder of the
bulletin may remain in effect. 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 the provisions of 26 M.R.S.A. 979-H(3)
(Supp. 1983-84), it is ORDERED:
That the State of Maine and its representatives and agents
1. Cease and desist from:
a) applying Paragraph B in Section 1 of
Bulletin 4.3 without first notifying
and bargaining with the Maine State
Employees Association about appli-
cation of the Paragraph if such bar-
gaining is requested.
b) in any like manner interfering with,
restraining, or coercing employees
in the exercise of rights guaranteed
by Section 979-B of the Act.
2. Take the affirmative action of immediately
revoking Paragraph B in Section 1 of Bulletin
4.3 until such time as the change in practice
proposed in that Paragraph is negotiated with
the Maine State Employees Association.
Dated at Augusta, Maine, this 23rd day of July, 1984.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right, pursuant to /s/________________________________
26 M.R.S.A. 979-H(7) Sidney W. Wernick
(Supp. 1983-84), to seek Chairman
a review by the Superior
Court of this decision
by filing a complaint
in accordance with Rule /s/________________________________
80B of the Rules of Civil Thacher E. Turner
Procedure within 15 days Employer Representative
of the date of this
decision.
Employee Representative Harold S. Noddin filed a concurring opinion.
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CONCURRING OPINION
I agree with everything said in the text of this decision and
order but I feel the remedies ordered do not go far enough. I would
order the Commissioner of Personnel to sign and post a notice at all
work sites detailing our findings and order. This remedy is necessary,
in my opinion, in order to alleviate the widespread impact of Paragraph
B on the State work force. I believe that inclusion of this remedy
along with the other remedies we have ordered would fully effectuate
the policies of the Act.
Dated at Augusta, Maine, this 23rd day of July, 1984.
/s/________________________________
Harold S. Noddin
Employee Representative
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