STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-08 Issued: April 19, 1985 ________________________________________ ) COUNCIL #74, AMERICAN FEDERATION ) OF STATE, COUNTY AND MUNICIPAL ) EMPLOYEES, ) ) Complainant, ) ) DECISION AND ORDER v. ) ) INHABITANTS OF THE TOWN OF BRUNSWICK, ) ) Respondent. ) ________________________________________) In this prohibited practices case, the Union alleges in its com- plaint that the Town of Brunswick has violated the provisions of 26 M.R.S.A. Sec. 964(1)(A) and (E) by refusing to negotiate certain economic and non-economic items and by making certain unilateral changes in wages, hours and working conditions. The Town filed an answer and a motion to dismiss the complaint, contending that the Union's failure to give the requisite 120-day notice of intent to bargain matters requiring the appropriation of money bars the Union's claim of a pro- hibited practice arising out of the Town's refusal to bargain those matters. The Town further contends that it maintained the status quo with respect to wages and other conditions of employment and has thus committed no violation of section 964. Alternate Chairman Donald W. Webber held a pre-hearing conference on the case on January 3, 1985, and, after hearing the parties, issued a Pre-Hearing Conference Memorandum and order, dated January 3, 1985, the contents of which are incorporated herein by reference. Among other things, the pre-hearing memorandum corrected the designation of the respondents in this case to read "Inhabitants of the Town of Brunswick." On January 7, 1985, the Union filed an amended complaint, which the Town moved to strike on the ground that the amendments had not -1- been approved by the Board as required by Rule 4.09 of the Rules and Procedures of the Board. The case was heard on February 11, 1985, before Chairman Edward S. Godfrey, Alternate Employer Representative Carroll McGary, and Alternate Employee Representative Gwendolyn Gatcomb. The complainant Union was represented by Mr. Howard Reben; the respondent Town, by Mr. Orville T. Ranger. The Union's witnesses were Police Secretary Sherry Worth and Assistant Assessor Robert Tripp. The Town's witness was Town Manager John P. Bibber. Each side made a closing oral argument. JURIDSDICTION The jurisdiction of the Board to hear and decide this case is con- ferred by 26 M.R.S.A. S 968(5)(A), (B) and (C). FINDINGS OF FACT On the basis of the pleadings, the agreements and stipulations of the parties, and the testimony of the witnesses, we find as follows: l. The Town of Brunswick is a public employer within the meaning of 26 M.R.S.A. Sec. 962(7). 2. The Union (Council #74, American Federation of State, County, and Municipal Employees, AFL-CIO) is the bargaining agent for the "General Government Employees Bargaining Unit," which includes employees of the Town of Brunswick who hold the following positions: Assessors Clerk, Administrative Secretary, Keeper of the Records, Collections Clerk, Bookkeeper, Deputy Tax Collector, Deputy Treasurer-Computer Operator, Appraiser, Legal Secretary, Inspections Officer, Assistant Assessor, Parking Officer, and any part-time employees of the Town who work on a regular basis in the following positions: Account Clerk, Deputy Town Clerk and Recreation Program Coordinator. 3. The Union was certified as bargaining agent for said unit on April 27, 1984. 4. The Town's fiscal year runs from July 1 to June 30. -2- 5. The Town was not served with written notice of request for collective bargaining at least 120 days before June 30, 1984, the date of conclusion of the Town's current fiscal operating budget. 6. On May 11, 1984, the Union notified the Town of its intention to bargain for the unit. 7. On June 12, 1984, the Town notified the Union that it did not intend to bargain on any matter requiring the appropriation of money. 8. On June 26, 1984, a negotiating session was held, at which the Union submitted a list of proposals, both economic and non-economic. At this and several later meetings the Union attempted to bargain for wages, vacations, sick time, leave time, insurance, and other economic items. 9. The Town refused to negotiate any matters requiring the appro- priation of money because the town had not been served with the 120- day notice required by 26 M.R.S.A. Sec. 965(1). The Town did, however, discuss certain non-economic items, including seniority and part-time employees, at meetings between the parties. 10. By memorandum dated June 18, 1984 the town manager informed members of the bargaining unit that effective July 1, 1984 the Town would implement portions of a certain Position and Classification Pay Plan which had been finalized in December, 1983. Pursuant to the memorandum the regular work week was raised from 32 1/2 to 35 hours per week. As stated in the memorandum, "In most cases this will mean a lunch period of one hour rather than 1 1/2 hours." The Town implemented this change unilaterally without offering to negotiate the substance thereof with the union. 11. The Union's prohibited practice complaint contains neither a specific allegation with regard to the facts described in paragraph 10 nor any general allegations that can be reasonably construed to include such facts. 12. On July 1 in each of several years, including 1981, 1982 and 1983, the Town had granted raises to unorganized employees. The per- centages of those past increases were not specified. -3- 13. Effective July 1, 1984, the Town granted a 6 percent wage increase to all unorganized (non-union) employees of the Town. 14. On September 12, 1984, the Union proposed, among other things, that all employees in this bargaining unit receive a wage increase equivalent to the percentage increase (6 percent) received by the Town's unorganized employees. On or before October 25, 1984, the Town decided not to make that wage adjustment and continues to refuse to do so. The Town also refused to grant employee Lessard, a member of the unit, her anniversary step increase. 15. As a result of collective bargaining, all other organized employees of the Town received a wage increase, each in accordance with the provisions of the pertinent collective bargaining agreement. DISCUSSION I. Motion to Amend the Complaint. We deny the Union's motion to amend the complaint, filed after the pre-hearing conference had been held and the pre-hearing order issued. There was ample time to amend the complaint before the pre-hearing, and no explanation has been offered for the tardiness of the motion. It is obvious that to permit an amendment at such a late stage in the proceedings of the Board would have serious potential for delay and disruption. II. Requirement of 120-day Notice. In several cases we have confronted the problem created by the 120-day notice provisions of 26 M.R.S.A. Sec. 965(1) (Supp. 1984-1985)[fn1] _______________ 1 The last sentence of 26 M.R.S.A. Sec. 965(l) (Supp. 1984-1985) pro- vides as follows: Whenever wages, rates of pay or any other matter requiring appropriation of money by any municipality or county are included as a matter of collective bargaining conducted pur- suant to this chapter, it is the obligation of the bargaining agent to serve written notice of request for collective bar- gaining on the public employer at least 120 days before the conclusion of the current fiscal operating budget. -4- where a bargaining agent for municipal employees is not certified in time to permit the required 120-day notice to be given before the end of the municipality's current fiscal year. We have consistently held that the 120-day notice rule applies to initial as well as successor bargaining agreements, Council #74, American Federation of State, County, and Municipal Employees, AFL-CIO v. School Administrative District No. 1, MLRB No. 81-12 (1981); Teamsters Local 48 v. Town of Falmouth, MLRB No. 79-10 (1979). The purpose of the 120-day rule is to prevent the unbalancing of municipal budgets by increases in costs that were not foreseen and provided for at the time the tax rate was determined. In the present case there are no extraordinary cir- cumstances that could possibly justify departure from the plain man- date of the statute. Hence the Town was not in violation of 26 M.R.S.A. Sec. 964(1)(E) in refusing to bargain wages and other cost items contained in the Union's proposals for a collective bargaining agreement to the extent that those proposals would have entailed the appropriation of money and would have had their incidence during the Town's fiscal year July 1, 1984, to June 30, 1985. With respect to non-cost items, the 120-day rule is not appli- cable. However, we find insufficient evidence to support the allegations of the complaint that the Town refused to bargain non-cost items. We will therefore dismiss the charges in the complaint that the Town refused to bargain collectively in violation of section 965(1)(E). III. Withholding of Salary and Step Increases. For several successive years it had been the practice for the Respondent to provide what it called a cost-of-living increase to its unrepresented employees. The amount and form of the increase was not placed in evidence, but the benefit was granted each year effective July 1. The record shows that the town granted a 6 percent increase to its remaining unrepresented employees effective July 1, 1984 but refused a demand of the union to extend that benefit to employees who had become members of the newly organized bargaining unit. The town also refused to place employee Lessard in the succeeding step of the -5- salary grid which otherwise would have applied but for the fact that her position was in the bargaining unit. The town's rationalization for these refusals was that it believed it was obligated to maintain the "status quo" since the unit members were now represented by a bargaining agent. If this were a situation involving an on-going collective bargaining relationship and the parties were between contracts, the respondent would be correct. For we have decided that in that situation the "static view of the status quo" should control and bene- fits should remain frozen pending negotiations for a new agreement. Easton Teachers Association v. Easton School Committee, MLRB No. 79-14 (1979). However, in other decisions we have emphasized that where the bargaining unit has been newly organized, the 'dynamic status quo" must be maintained; that is, benefits customarily given or already provided for under arrangements in effect at the time of certification of the bargaining agent must be continued. Council #74, AFSCME, AFL- CIO v. SAD No. 1, MLRB No. 81-12 (1981); Town of Falmouth, supra. Under that principle the employer is obligated to continue its normal and customary practices regarding mandatory subjects of bargaining. Wage and step increases are obviously mandatory subjects of bargaining. The record shows that a salary increase had been granted customarily and regularly to non-organized employees on July 1 for several successive fiscal years immediately preceding fiscal year 1984-85 and a 6 percent increase was accorded non-organized employees effective July 1, 1984. Therefore, the same benefit had to be con- tinued for those employees who became members of the newly formed unit. For similar reasons employee Lessard should have received the scheduled step increase on her anniversary date that she would have been entitled to under the arrangements in effect before the Union was certified. Failure to continue these benefits constitutes a per se violation of the Act for which we must order appropriate remedies. The 120-day provision is not a factor in this situation. That provi- sion is not a shield behind which a party can avoid responsibilities imposed by law. See SAD No. 1, supra. -6- IV. Implementation of Position Classification and Pay Plan. Over the Town's persistent objection, the Union introduced evi- dence, admitted de bene, that after the Union had been certified as bargaining agent, the Town ordered an increase in the work week of certain clerical and support employees from 32 1/2 to 35 hours per week without an increase in pay, effective July 1, 1984. The increase was intended to implement a plan adopted by the Town in December, 1983. Nearly all the employees affected by the order had become members of the bargaining unit represented by the Union. The law is well settled that, with limited exceptions not here applicable, once a bargaining agent is in place, the employer may not unilaterally make changes in a subject of mandatory collective bargaining without first negotiating with the certified agent. Maine State Employees Association v. State of Maine, MLRB No. 78-23 (1978); Lake Region Teachers Association v. Mt. Vernon School Committee, MLRB No. 78-15 (1978); Easton, supra. It is irrelevant that the change in hours was intended to implement a plan adopted before the union was certified. To hold otherwise would undermine the provisions of the Act designed to protect employees from retaliation for joining a union. The Board is not in doubt that the step-up from 32 1/2 to 35 hours was a prohibited labor practice in the circumstances. The difficulty is that the prohibited practice complaint in this case contains neither a specific allegation that the step-up occurred nor any general allegation that can be reasonably construed to include this particular violation. Even the amended complaint would not have reached this particular practice. Rule 4.09 authorizes the Board to permit an amendment to a complaint at any time on such terms as may be deemed just and con- sistent with due process where such an amendment is sought on motion -7- of a party as necessary to conform to the evidence.[fn2] Inasmuch as the evidence of record does not establish that the Union objected to the step-up in hours or raised the issue in its demands for negotiation or in the negotiations themselves, we decline to treat the complaint as if it were amended to include this particular practice. ORDER On the basis of the foregoing findings of fact and pursuant to the powers granted to the Maine Labor Relations Board by the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Sec. 968, it is ORDERED: 1) That the respondent, its agents, and their members, agents, successors or assigns shall: a) cease and desist from making unilateral changes in wages, hours or working conditions without first negotiating such changes with the com- plainant; and b) take the affirmative action designed to effec- tuate the policies of the Act of making whole the members of the "General Government Employees Bargaining Unit" for any monetary loss they may have suffered as a result of failure to grant the increase granted to non-represented employees in the amount of six percent, retroactive to July 1, 1984, and for failure to grant anniversary step increases to employee Lessard and any others milarly situated, plus legal interest on all arrearages until the date of payment of the said arrearages. c) To notify the Executive Director, within 20 days, of what steps have been taken to comply with this order. 2) We dismiss all charges that the respondent failed to nego- tiate on non-economic items proposed by the complainant for _______________ 2 Rule 4.09 provides, in pertinent part, as follows: The Board may permit an amendment to the complaint or response at any time on such terms as may be deemed just and consistent with due process. At the conclusion of the hearing, the complaint or response on motion of a party may be amended as necessary to conform to the evidence. . . . -8- inclusion in a collective bargaining agreement between the parties. Dated At Augusta, Maine, this 19th day of April, 1985. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised Edward S. Godfrey of their right pursuant Chairman to 26 M.R.S.A. Sec. 968(5)(F) to seek a review by the Superior Court of this decision by filing a /s/________________________________ complaint in accordance Carroll R. McGary with Rule 80B of the Alternate Employer Representative Rules of Civil Procedure within 15 days after receipt of this decision. /s/_________________________________ Gwendolyn Gatcomb Alternate Employee Representative -9-