STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-09 Issued: April 23, 1986 ____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND INTERIM ORDER ) THE STATE OF MAINE, ) ) Respondent. ) ____________________________________) On December 18, 1985, the Maine State Employees Association (MSEA) duly filed with the Maine Labor Relations Board (Board) a pro- hibited practice complaint alleging that the State has refused to bargain with the MSEA as required by 26 M.R.S.A. Sec. 979-D (Supp. 1985), in violation of 26 M.R.S.A. Sec. 979-C(l)(E)(1974). More specifically, the MSEA alleges that on September 3, 1985, the State of Maine unila- terally imposed a change in the workplace smoking policy applicable to Department of Human Services (DHS) employees without bargaining over the policy as requested by MSEA. The MSEA contends that the policies and practices concerning smoking in the workplace which existed prior to the imposition of the State's smoking policy are mandatorily negotiable subjects not speci- fically covered by the bargaining agreements, which are nonetheless protected from unilateral modification by Maintenance of Benefits articles in collective bargaining agreements executed by the parties. The MSEA further alleges that the complained-of State actions also violate 26 M.R.S.A. Sec. 979-C(1)(A)(1974). The State contends that the changes it has effectuated in the DHS workplace smoking policies are required by statute and are permitted by both the Health and Safety and Work Rules articles of the collective bargaining agreements. The State duly filed its response to the complaint, and on January 17, 1986, Alternate Chairman Donald W. Webber conducted a pre- hearing conference. The Prehearing Conference memorandum and order -1- issued by Alternate Chairman Webber on January 20, 1986, is incor- porated in and made a part of this decision and order. As a result of the parties' preheating agreement that no unresolved factual issues remain, the following disputed legal issues are submitted to the Board by written argument: 1. Is the smoking policy decision promulgated by DHS a man- datory subject of collective bargaining? (Note-The State agrees that it is, except for the pos- sible effect of the enactment of 22 M.R.S.A. S 1580-A (Supp. 1985)). 2. Did the MSEA waive its right to negotiate the smoking policy by language contained in the collective bargaining agreements? On March 20, 1986, the Board, consisting of Chairman Edward S. Godfrey, presiding; Thacher E. Turner, Employer Representative; and George W. Lambertson, Employee Representative, deliberated the issues framed by the complaint and response, narrowed by the Prehearing Conference Memorandum and order and argued in the parties' briefs, the last of which was filed March 14, 1986. The Board deliberated further on April 3, 1986. JURISDICTION Neither party has challenged the jurisdiction of the Board in this case. We conclude that the Board has jurisdiction over this controversy pursuant to 26 M.R.S.A. Sec. 979-H (1974 & Supp. 1985). The complaint alleges a violation of the obligation to bargain prescribed in 26 M.R.S.A. Sec. 979-D (1974 & Supp. 1985), which violation is speci- fically prohibited by 26 M.R.S.A. Sec. 979-C(1)(E) (1974). The complaint also alleges interference, restraint, or coercion, all of which are prohibited by 26 M.R.S.A. Sec. 979-C(1)(A)(1974). It is possible that the acts complained of constitute both contract violations and prohi- bited practices.fn1 The existence of that possibility does not divest _______________ 1 The Responsibilities of the Parties articles in the parties' agreements prohibit the interference, restraint and coercion charged in the MSEA's derivative 26 M.R.S.A. Sec. 979-C(1)(A)(1974) allegation. -2- the Board of its jurisdiction under 26 M.R.S.A. Sec. 979-H (1974). The Legislature has recognized arbitration as the desirable method for resolving contract disputes, State of Maine v. Maine State Employees Association, 499 A.2d 1228, 1231-32 (Me. 1985), citing Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154, 166 (Me. 1976). However, the Legislature has also explicitly stated that the Board's prohibited practice jurisdiction "shall not be affected by any other means of adjustment or prevention that has or may be established by agreement, law or otherwise." 26 M.R.S.A. Sec. 979-H(1)(1974). DISCUSSION The MSEA is the exclusive collective bargaining agent of units of the State's Administrative Services; Operations, Maintenance and Support Services; Law Enforcement Services; Professional and Technical Services; and Supervisory Services employees. The State and the MSEA are parties to five collective bargaining agreements, applicable to DHS employees in several of the above-mentioned units, which are effective from September 3, 1984, to June 30, 1986. Certain provi- sions of those agreements are drawn into question in the present contro- versy. On July 23, 1985, representatives of the MSEA met with represen- tatives of the State and the DHS. At that meeting, representatives of the State and the DHS informed the MSEA that they were considering changes to the DHS policy and/or practice regarding workplace smoking by DHS employees. The MSEA notified the State and the DHS that the MSEA considered any change in workplace smoking policy to be subject to collective bargaining, and demanded negotiations over any such change. The State and the DHS refused to negotiate with MSEA over the proposed changes in.the DHS smoking policy. on or about September 3, 1985, the State and the DHS implemented a new workplace smoking policy applicable to DHS employees without negotiating over the policy itself or its impact. The new policy changed the conditions under which DHS employees were permitted to smoke at the workplace. -3- On September 11, 1985, the MSEA filed a grievance against the State and the DHS under the grievance procedure in the parties' collective bargaining agreements. In the grievance letter, the MSEA repeated its demand that the State and the DHS negotiate with the MSEA over the new workplace smoking policy. The MSEA also demanded that the new policy be rescinded pending those negotiations. On December 2, 1985, the MSEA filed a written demand for arbitra- tion with the Governor's office of Employee Relations requesting a determination of whether the State violated the Maintenance of Benefits articles[fn]3 of the collective bargaining agreements when it refused to negotiate changes in DHS working conditions regarding smoking. No procedural issues exist with regard to the grievance ini- tiated by the MSEA on September 11, 1985. The matter is now properly before the arbitrator at step four of the grievance procedure and scheduled to be heard on August 15, 1986. As of the date of the filing of the complaint herein, the State and the DHS had refused to negotiate with the MSEA over a workplace smoking policy for DHS employees. The new policy, implemented on September 3, 1985, was in effect at the time of the filing of the complaint. The MSEA has charged that the State has violated the State Employees Labor Relations Act by changing smoking policies applicable to DHS employees included in various bargaining units which the MSEA represents as collective bargaining agent. The State admits that its changes in these policies were made without bargaining as requested by _______________ 2 State Case No. 919 (American Arbitration Association No. 1139224185). 3 The parties agreements' all contain Maintenance of Benefits articles which state: With respect to negotiable wages, hours and working con- ditions not covered by this Agreement, the State agrees to make no changes without appropriate prior consultation and negotiations with the Association unless such change is made to comply with law, and existing regulations, Personnel Rules, written Policies and Procedures, General orders, General Operating Procedure, or Standard operating Procedure. -4- the MSEA. The State asserts in defense of the changes, however, that they were made unilaterally under the authority of certain articles in the parties' agreements. Since the complaint may be read to charge a violation of the Maintenance of Benefits articles and since the State's defense consists wholly of claimed contractual privilege, the question whether a refusal to bargain has occurred will be determined on the basis of the interpretation of provisions of the bargaining agreements. We therefore conclude, in accordance with our longstanding policy, that the case should be deferred to the parties' voluntary dispute resolution machinery. See Teamsters Local Union No. 48 v. City of Calais, No. 80-29 (Me.L.R.B. May 13, 1980); MSAD #45 Teachers Association v. MSAD #45 Board of Directors, No. 78-10 (Me.L.R.B. Jan. 24, 1978); Bangor Education Association v. Bangor School Committee, No. 76-11 (Me.L.R.B., July 31, 1976); Tri-22 Teachers Association v. MSAD, No. 22, No. 75-28 (Me.L.R.B. Sept. 9, 1975). Deferral to the arbitral process is the preferable course in cases such as the instant one where the alleged refusal to bargain may be cognizable both as a prohibited practice and as a breach of contract. This policy gives full effect to the parties' agreement to submit contract disputes to arbitration. In this respect we agree with the rationale contained in the following statement made by the National Board in National Radio Co., 198 NLRB 527, 531 (1972), quoted in United Technologies Corp., 268 NLRB 557, 559 (1984): Here . . . an asserted wrong is remediable in both a statutory and a contractual forum. Both juris- dictions exist by virtue of congressional action, and our duty to serve the objectives of Congress requires that we seek a rational accommodation within that duality. We may not abdicate our statu- tory duty to prevent and remedy unfair labor prac- tices. Yet, once an exclusive agent has been chosen by employees to represent them, we are charged with a duty fully to protect the struc- ture of collective representation and the freedom of the parties to establish and maintain an effec- tive and productive relationship. In this context, abstention simply cannot be equated with abdication. We are, instead, adjuring the parties to seek resolution of their dispute under the provisions of their own contract and thus -5- fostering both the collective relationship and the Federal policy favoring voluntary arbitration and dispute settlement. Moreover, we agree with the following statements by the National Board regarding the similar policy considerations under the National Act: It is fundamental to the concept of collective bargaining that the parties to a collective- bargaining agreement are bound by the terms of their contract. Where an employer and a union have voluntarily elected to create dispute resolution machinery culminating in final and binding arbitra- tion, it is contrary to the basic principles of the Act for the Board to jump into the fray prior to an honest attempt by the parties to resolve their disputes through that machinery. For dispute reso- lution under the grievance-arbitration process is as much a part of collective bargaining as the act of negotiating the contract. In our view, the statu- tory purpose of encouraging the practice and proce- dure of collective bargaining is ill-served by permitting the parties to ignore their agreement and to petition this Board in the first instance for remedial relief. (Footnote omitted). United Technologies Corp., 268 NLRB 557, 559 (1984). The Maine Board has not been indiscriminate in deferring to arbi- tration and has refused to defer on many previous occasions.[fn]4 The present case is suited to resolution by arbitration because the bargain- ing agreements and their meaning are at the center of the dispute. Where deferral is to a scheduled prospective arbitration, the Board, while deferring, maintains jurisdiction over the prohibited practice complaint for the purpose of taking appropriate action should further proceedings be required. See Council #74, AFSCME v. City of Bangor, No. 80-50 (Me.L.R.B. Sept. 22, 1980); MSAD #45 Teachers Association v. MSAD #45 Board of Directors, No. 78-10 (Me.L.R.B. Jan. 24, 1978). 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. Sec. 979-H (1974 & Supp. _______________ 4 The Board has previously refused to defer in a case involving a discrimination charge, see Ross v. Portland Superintending School -6- 1985), it is ORDERED: That processing of the MSEA's prohibited practice complaint be deferred pending resolution of the parties' scheduled arbitration. That the parties notify the Board within ten calendar days of any settlement or award in this matter. Motions for resumed processing of the prohibited practice complaint must be made within twenty calendar days after any award. Dated at Augusta, Maine this 23rd day of April, 1986. MAINE LABOR RELATIONS BOARD /s/________________________ Edward S. Godfrey Chairman /s/________________________ Thacher E. Turner Employer Representative /s/________________________ George W. Lambertson Employee Representative _______________ Committee of the City of Portland, No. 83-04 (Me.L.R.B. Aug. 29, 1983), and in a case involving allegations of interference, restraint, and coercion. See Woodward v. Town of Yarmouth, No. 83-16 (Me.L.R.B. Oct. 5, 1983). The Board has in two cases refused to defer based on the existence of a conflict of interest. See Teamsters Local Union No. 48, State, County, Municipal and University Employees v. Biddeford Police Department, No. 78-31 (Me.L.R.B. Mar. 27, 1979) and Charles v. City of Waterville, No. 78-19 (Me.L.R.B. July 21, 1978). The Board has also refused to defer in a case where no contract violation was alleged, see East Millinocket Teachers Association v. East Millinocket School Committee, No. 79-24 (Me.L.R.B. April 9, 1979), where the case involved violation of the strike prohibition, see Rumford School Department v. Rumford Teachers Association, No. 79-15 (Me.L.R.B. July 30, 1979), where the grievance procedure was unavailable, see Teamsters Local Union No. 48, State, County, municipal and Univeristy Employees in the State of Maine v. City of Bangor, No. 80-46 (Me.L.R.B. Oct. 6, 1980) and where the dispute involved interpretation of the Municipal Act and the Board was unsure that deferral would settle the matter. See Council #74, AFSCME v. City of Bangor, No. 80-50 (Me.L.R.B. Sept. 22, 1980). -7-