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
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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.
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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.
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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.
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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
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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.
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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
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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
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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. . . .
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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
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