STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-11 Issued: December 29, 1986 _________________________________ ) PAUL COULOMBE and SOUTH PORTLAND ) PROFESSIONAL FIREFIGHTERS, LOCAL ) 1476, I.A.F.F., ) ) Complainants, ) ) DECISION AND ORDER v. ) ) CITY OF SOUTH PORTLAND, ) ) Respondent. ) _________________________________) The questions presented in this prohibited practices case are whether the City of South Portland (hereinafter referred to as "Employer") violated 26 M.R.S.A. Sec. 964(1)(A), (C) and (E) by: (1) threatening to enforce condition-of-employment agreements, signed by job applicants, against employees who have completed their proba- tionary period and (2) failing and refusing to negotiate over the enforcement of such condition-of-employment agreements against non- probationary employees, as demanded by the employees' bargaining agent. We hold that the Employer's actions violated the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-A (1974 & Pamph. 1986). We will, therefore, fashion a remedy appropriate to redress these violations and to effectuate the policies of the Act. The prohibited practices complaint was filed on February 3, 1986, pursuant to 26 M.R.S.A. Sec. 968(5)(B) (Pamph. 1986) by Paul Coulombe and the South Portland Professional Firefighters, Local 1476, I.A.F.F. (hereinafter referred to together as "Union'). The Union's complaint alleged that the Employer's actions violated the sections of the Act mentioned in the preceding paragraph. The Employer filed its answer on February 10, 1986, denying that its actions transgressed any provi- sion of the Act and moving to dismiss the Union's complaint. A prehearing conference on the case was held on March 12, 1986, Alternate Chairman Donald W. Webber presiding. On March 20, 1986, -1- Alternate Chairman Webber issued a Prehearing Conference Memorandum and order, the contents of which are incorporated herein by reference. A hearing on the merits of the case was conducted by the Maine Labor Relations Board ("Board"), Chairman Edward S. Godfrey presiding, with Alternate Employer Representative Linda D. McGill and Employee Representative George W. Lambertson, on April 24, 1986. The Union was represented by John W. Chapman, Esq., and the Employer was represented by William H. Dale, Esq. The parties were given full opportunity to examine and cross-examine witnesses, to introduce documentary evi- dence, and to make argument. The parties filed posthearing briefs, the last of which was received on May 23, 1986, which were considered by the Board in reaching its decision. JURISDICTION Complainant Paul Coulombe is the president of the Union and is a public employee, within the meaning of 26 M.R.S.A. Secs. 962(6) (1974 & Pamph. 1986) and 968(5)(B) (Pamph. 1986). The Complainant South Portland Professional Firefighters, Local 1476, I.A.F.F., is the cer- tified bargaining agent, within the definition of 26 M.R.S.A. Sec. 962(2) (1974), for a bargaining unit composed of all uniformed employees of the South Portland Fire Department, excepting only the Fire Chief and Deputies. The City of South Portland is the public employer, within the definition of 26 M.R.S.A. Sec. 962(7) (Pamph. 1986), of the employees mentioned in the preceding sentence. The jurisdiction of the Maine Labor Relations Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Sec. 968(5) (1974 & Pamph. 1986). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. Complainant Paul Coulombe is the president of the Union and is a public employee, within the meaning of 26 M.R.S.A. Secs. 962(6) (1974 & Pamph. 1986) and 968(5)(B) (Pamph. 1986). 2. The Complainant South Portland Professional Firefighters, Local 1476, I.A.F.F., is the certified bargaining agent, within the -2- definition of 26 M.R.S.A. Sec. 962(2) (1974), for a bargaining unit com- posed of all uniformed employees of the South Portland Fire Department, excepting only the Fire Chief and Deputies. 3. The Respondent City of South Portland is the public employer, within the definition of 26 M.R.S.A. Sec. 962(7) (Pamph. 1986), of the employees mentioned in the preceding paragraph. 4. Under the South Portland Civil Service ordinance, South Portland Municipal Code Sec. 19-11(d) (Supp. No. 14), all persons appointed to the South Portland Fire Department must serve a one-year "working test" probationary period. Any employee who is discharged during the probationary period has no right to appeal such dismissal to the Civil Service Commission. 5. Beginning in 1981-and continuing through April, 1985, the City of South Portland required all new employees in the South Portland Fire Department to execute the following document: CONDITION OF EMPLOYMENT I, (Employee's name] hereby acknowledge that as a condition of employment with the South Portland Fire Department I must pass the Emergency Medical Technician Course offered by SMVTI, or its equivalent as approved by the Chief, within one year of my appointment and must become certified as an advanced life support technician as soon as possible and agree to enroll in the next available course given in the Greater Portland area. I acknowledge that I must gain both my EMT and ALS cer- tifications within the time periods specified above even on my off-duty time although the City will allow me to attend the necessary classes during duty time as well. I hereby acknowledge that I have read the above statement, understand its meaning, and recognize that the penalty for failure to comply will be dismissal from my position of employment. Dated:_______________ _________________________________ Name 6. During the round of negotiations which resulted in the 1984- 1986 collective bargaining agreement between the parties, the Employer proposed that a contract article be included in the successor agreement requiring employee participation in a physical training program. No agreement was reached on the Employer's proposal; -3- however, Article 34, the health, fitness, and safety article, was adopted as a new article in the parties' successor collective agreement. 7. During the past few rounds of negotiations, the parties have discussed, but never reached agreement, on requiring the fire depart- ment employees to acquire and maintain various Emergency Medical Technician certification levels as a condition of employment. The sole reference to such certification levels in the parties' collective bargaining agreement is the following sentence in Article 24, the article on salaries, which states: "In addition to the above salaries, members practicing advanced life-support shall receive four dollars ($4.00) per week." 8. During April of 1985, the Employer, acting through its Fire Chief and its Assistant City Manager, unilaterally decided to require prospective employees in the fire department to execute the following document, as part of their application for employment: CONDITION OF EMPLOYMENT AGREEMENT This is an agreement made by the City of South Port- land, Maine, called the City: and _______________________ called the Employee. WHEREAS, the City deems it necessary and desirable to retain the services of employees who are competent to perform certain mental and physical duties, and the Employee has been deemed qualified to perform these services for the City 'Fire Department. NOW, THEREFORE, in consideration of mutual promises herein contained, the City and Employee agree as follows: Sec. 1. Retention of Services. Commencing __________, 19__, the Employee shall be retained by the City as a member of the South Portland Fire Department to perform the services, functions, and duties assigned to him by the Fire Chief. Sec. 2. Compensation and Other Benefits. For the performance of the services, functions, and duties assigned to the Employee by the Fire Chief, the Employee is entitled to receive the same salary structure, fringe benefit package, and employee rights as are other employees in the same job classification. Sec. 3. Specific Contractual Conditions. (1) The Employee must, within his probationary period, become -4- licensed to a minimum level of Basic Emergency Medical Tech- nician, as provided for by the State of Maine Ambulance Regu- lations, effective January 1, 1984, Section 6.3 through 6.314. Once this basic EMT level has been obtained, the Employee must, within a one-year period, become licensed to the Advanced EMT- EOA level as provided for under Section 6.4 through 6.416. After the Advanced EMT-EOA level has been obtained, the Employee must, within a one-year period, become licensed to the Advanced EMT-Critical Care level as provided for by the Southern Maine E.M.S.Council. The employee must maintain the Advanced EMT-C.C. license level during his tenure of employment with the City Fire Department and agree to achieve any EMT advanced levels as the City makes them available. The City shall make an EMT, EMT/EOA, EMT-Critical Care, and any advanced EMT levels avilable [sic] to the Employee. Any costs or fees incurred by the Employee in meeting the requirements shall be borne by the City. (2) The employee must within his first year complete all competencies of the National Fire Protection Association, Pamphlet 1001, Fire Fighter I standards, or be terminated unless just cause is-found. The employee must complete all competencies of NFPA 1001, F.F. II within his second year or not receive the step raise for that level until completion. The employee must complete all competencies of NFPA 1001 F.F. III within his third year or not receive the step raise for that level until completion. (3) The Employee must maintain a State of Maine driver's license at all times. (4) The Employee must be tested in accordance with the 1980 Edition of the NFPA 1001, Firefighter Professional Qualifications, Section 2-3, minimum physical fitness requirements. These fitness requirements are minimum and must be maintained through employment tenure. Annually, after completion of a physical examination and certification by an examining physician that he is physically able to participate, the physical fitness test shall be administered to the Employee. The City shall provide the annual physical examination for the Employee at the City's expense. Any employee who fails the annual physical examination or physical fitness test, shall be retested within 30 calendar days. The employment of any employee who fails the re-examination on retesting shall be terminated. Termination for failure to meet the minimum standards required by this paragraph, shall not be deemed to be a disability for pension purposes. -5- The Employee agrees that, effective immediately he will not participate in the purchase, use, or sale of any illegal drug or narcotic during the tenure of his employment. The Employee agrees that he has read and understands the conditions of employment as outlined in this Agreement, and agrees as a condition of employment, and as a condition to each level of employment, to maintain at least the minimum requirements outlined in Section 4. Dated: ___________________ City of South Portland, Maine By:__________________________ Fire Chief __________________________ Employee State of Maine Cumberland, ss. Subscribed and sworn to before me. Dated: ________________________ ________________________________ Notary Public Justice of Peace Attorney at Law 9. Individuals who, if asked to do so, failed or refused to execute the document quoted in the preceding paragraph would not be considered for employment with the fire department. 10. The South Portland Civil Service Commission has neither adopted nor required the use of the Condition of Employment Agreement cited in paragraph 8 hereof. 11. The Employer did not inform the Union of its decision to require prospective employees to sign the Condition of Employment Agreement quoted in paragraph 8 and the Union first learned of the Employer's decision when job candidates were required to execute the Agreement on August 20th and August 25th, 1985. 12. Upon learning of the use of the Condition of Employment Agreement cited in paragraph 8, the Union demanded that the Employer stop requiring job candidates to sign the form and requested that the Employer negotiate over the conditions of employment contained in the Agreement. -6- 13. The Employer has taken the position that it may unilaterally impose job requirements for new employees and, therefore, need not negotiate with the Union over the terms and conditions of employment imposed in the Condition of Employment Agreement quoted in paragraph 8 above. 14. Since requiring two prospective employees to execute the Agreement cited in paragraph 8 on August 20th and on August 25th, 1985, the Employer has required other job applicants to sign the Agreement quoted in paragraph 5 hereof. 15. The Employer has announced its intention to enforce the Condition of Employment Agreement quoted in paragraph 8, supra, against employees who have completed their employment probationary period and who are included in the bargaining unit mentioned in paragraph 2 above. 16. The employment relationship of the employees in the bargain- ing unit-mentioned in paragraph 2 hereof is characterized by the following past practices: a. During their first few years of employment, the fire- fighters are principally engaged in manning the department's ambulance. b. Prior to 1981, the ambulance was mainly used to transport injured persons to local hospitals. c. In 1981, someone donated advanced life support equipment to the Employer and the equipment was installed in the department's ambulance. d. Since 1981, the employees working on the department's ambulance have been performing basic emergency medical technician and advance life support services. e. Although applicants for employment have been required to possess a valid Maine motor vehicle operator's license, there is no evidence that any bargaining unit employee was ever required to maintain such license as a condition of continued employment. f. As applicants for employment, the firefighters were required to successfully complete a pre-employment physical examination and a pre-employment physical fitness test. Unit employees have not been required to undergo annual physical examinations and physical fitness tests, other than the pre-employment tests mentioned herein. -7- g. As part of the pre-employment background investigation conducted by the South Portland Police Department, the police are to attempt to learn whether job applicants for the firefighter position are engaged in "illegal use of narcotics or drugs or excessive use of intoxi- cating liquors." If such use is discovered, the job applicant is removed from the eligibility register and is not considered further for employment. There is no evidence that any bargaining unit employee was ever disciplined for engaging in "illegal use of narcotics or drugs or excessive use of intoxicating liquors." DISCUSSION The Employer avers that the Union's prohibited practices complaint should be dismissed on the grounds that the complaint is barred by the applicable statute of limitations. 26 M.R.S.A. Sec. 968(5)(B) (Pamph. 1986) states, in relevant part, that "no hearing shall be held based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint with the executive director." We have held that the 6 month limitations period begins to run when the complainant knew, or reasonably should have known, of the occurrence of the event which allegedly violated the Act. Maine School Administrative District No. 45 v. Maine School Administrative District No. 45 Teachers Association, MLRB No. 82-10, Slip op. at 12 (Sept. 17, 1982). The record indicates that, although the Employer decided to use the new condition-of-employment agreement during April of 1985, it did so without notice to the Union. The Union did not learn of the Employer's decision to use the new form until August 20, 1985, when the form was first used. Upon learning of the new form, the Union promptly demanded that the Employer stop using the form, until it has negotiated with the Union over the terms of the agreement which would continue in force after completion of the signa- tory employees' one-year "working test." Since the Union's prohibited practices complaint was filed with the executive director on February 3, 1986, within 6 months of the first use of the new con- dition of employment agreement on August 20, 1985, the Union's complaint was timely filed, within the statute of limitations con- tained in Sec. 968(5)(B) of the Act. The Employer's second procedural defense is that the Union's complaint should be dismissed because it is allegedly "barred by -8- expiration of the applicable appeal period contained in the parties' collective bargaining agreements." This argument was not mentioned at either the hearing before the Board nor in the Respondent's post- hearing brief. In accordance with our past decisions, we deem as having been withdrawn arguments which were argued neither orally nor in a party's brief. Westbrook Police Unit v. City of Westbrook, MLRB No. 81-53 Slip op. at 5 (Aug. 6, 1981). In any event, the argument lacks merit. At the hearing, the Employer objected to the Board's considering the issues raised in the Union's complaint on the grounds that said issues concern alleged violations of the parties' collective bargaining agreement and should, therefore, have been resolved through the agreement's grievance procedure. Although the Board has no juris- diction to consider contract grievance arbitration cases, in cases such as this where the employer has allegedly violated the statutory duty to bargain by unilaterally implementing changes in the mandatory subjects of bargaining, the Board must interpret the applicable collective agreement in determining whether there was a refusal to bargain or whether the implemented change was permitted by the agreement. State of Maine v. Maine State Employees Assn., 499 A.2d 1228, 1230 (Me. 1985). Second, 26 M.R.S.A. Sec. 968(5)(A) (1974) states: The Board is empowered, as provided, to prevent any person, any public employer, any public employee, any public employee organization, or any bargaining agent from engaging in any of the prohibited acts enumerated in section 964. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise. A plain reading of this section of the Act is that, when a single action or occurrence constitutes a prohibited practice and also is violative of the collective bargaining agreement, the Board is empowered to rectify the situation, despite the fact that a contrac- tual remedy may exist therefor. In instances where the aggrieved party has sought redress through both the Board's prohibited practices procedure and through the contractual grievance mechanism, the Board will, in appropriate circumstances, defer to the arbitral process -9- while retaining jurisdiction over the prohibited practice complaint "for the purpose of taking appropriate action should further pro- ceedings be required." Maine State Employees Assn. v. State of Maine, MLRB No. 86-09, Slip op. at 5-6 (April 23, 1986). Since no grievance was filed in this case, the Board is not presented with a situation where deferral is appropriate. The Board will, therefore, consider the merits of the Union's complaint. The thrust of the Union's complaint is that the Employer has uni- laterally altered the terms and conditions of employment of bargaining unit employees by requiring job applicants to execute individual con- dition-of-employment agreements, without having first notified the Union thereof, and by continuing to enforce the terms of such indi- vidual agreements after the individuals who executed the same become public employees and members of the bargaining unit represented by the Union as bargaining agent. The Union alleged that the Employer's con- duct violated 26 M.R.S.A. Sec. 964(1)(A), (C) and (E). The Employer argued that its actions did not violate any section of the Act for the following reasons: (1) the decisions to require employees to acquire and maintain certain emergency medical technician certification levels and to meet certain physical fitness requirements, as conditions of continued employment, are "governmental or political" decisions and are, therefore, not mandatory subjects of bargaining; (2) a public employer is free to unilaterally determine the conditions of employment for new hires; (3) the changes implemented were authorized by the management rights clause of the parties' collective bargaining agreement; and (4) during the round of negotiations which resulted in the current collective bargaining agreement between the parties, the Union waived the right to object to the implementation of the changes at issue. The statutory duty to bargain created by 26 M.R.S.A. Sec. 965(1) (Pamph. 1986) requires the public employer and the bargaining agent to "negotiate in good faith with respect to wages, hours, working con- ditions and contract grievance arbitration." 26 M.R.S.A. Sec. 965(1)(C) (Pamph. 1986). We have held that the duty to bargain continues throughout the life of the collective bargaining relationship between the public employer-and the bargaining agent, Council 74, AFSCME v. -10- Ellsworth School Committee, MLRB No.-81-41, Slip op. at 7 (July 23, 1981), "provided the parties have not otherwise agreed in a prior written contract." 26 M.R.S.A. Sec. 965(1)(B) (Pamph. 1986). Despite the fact that a collective bargaining agreement is in effect between them, the parties' obligation to bargain continues in the following circumstances: If, as in the instant case, there is a collective bargain- ing agreement in effect which does no t contain a so-called "zipper clause," the obligation to bargain continues with respect to new issues which arise during the course of the administration of the collective bargaining agreement when those new issues are neither contained in the terms of the contract nor negotiated away during bargaining for that contract or a successor agreement. Cape Elizabeth Teachers Assn. v. Cape Elizabeth School Board, PELRB No. 75-24, Slip op. at 4 (Oct. 16, 1975); East Millinocket Teachers Assn. v. East Millinocket School Committee, MLRB No. 79-24, Slip op. at 4-5 (Apr. 9, 1979). A corollary to the duty to bargain is the prohibition against public employers making unilateral changes in the mandatory subjects of bargaining. We have discussed the unilateral change rule as follows: Changes in the mandatory subjects of bargaining implemented unilaterally by the public employer contravene the duty to bargain created by Sec. 965(1) of the Act and violate 26 M.R.S.A. Sec. 964(1)(E). The rationale behind this principle of labor law is that an employer's unilateral change in a mandatory subject of bargaining "is a circumvention of the duty to negotiate which frustrates the objectives of [the Act] much as does a flat refusal." NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed.2d 230 (1962); Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 1982). In order to constitute a violation of Sec. 964(1)(E), three elements must be present. The public emloyer's action must: (1) be unilateral, (2) be a change from a well-established practice, and (3) involve one or more of the mandatory sub- jects of bargaining. Bangor Fire Fighters Association v. City of Bangor, MLRB No. 84-15, at 8 (Apr. 4, 1984). An employer's action is unilateral if it is taken without prior notice to the bargaining agent of the employees involved in order to afford said representative a reasonable opportunity to demand negotiations on the contemplated change. City of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1135 (Me. 1982). -11- Teamsters Local Union No. 48 v. Eastport School Department, MLRB No. 85-18, Slip op. at 4 (Oct. 10, 1985). The Employer has not contested that the individual condition-of- employment agreements at issue make changes affecting bargaining unit employees, that job applicants were required to execute said individ- ual agreements without prior notice thereof having been given to the Union, or that the Employer will continue to enforce the terms of said agreements once the persons signing the same have become public employees and members of the bargaining unit represented by the Union. The only questions which remain, in determining whether the Employer's actions constitute unlawful unilateral changes, are the following: (1) did the changes involve one or more of the mandatory subjects of bargaining and, if so, (2) did the changes represent a divergence from well-established practices. These questions will be answered through consideration of the merits of the Employer's defenses noted above. The Employer's first defense is that the decisions to require employees to acquire and maintain certain emergency medical technician certification levels and to meet certain physical fitness require- ments, as conditions of continued employment, are not mandatory sub- jects of bargaining because such decisions are governmental or political in nature. Brief on behalf of the Employer, at 4-6. The sole Maine authority cited by the Employer in support of this proposi- tion is Portland Firefighters Assn. v. City of Portland, 478 A.2d 297 (Me. 1984). The gist of the Employer's argument is that certain deci- sions are so closely related to the operation of the governmental entity that they constitute a management prerogative which is not sub- ject to the duty to bargain. While the Law Court opinion in Portland Firefighters Assn. makes no reference to "governmental" or "political" decisions whatsoever, the decision of this Board which was affirmed by the Court in that case explicitly rejected the notion of a "management prerogative" exception to the duty to bargain. Our decision stated: Several of the arguments presented in the City's brief regarding negotiability of the proposals are fallacious, and we expressly disavow any endorsement of them. For example, the contention that the proposals are not nego- tiable because minimum manning is a "management preroga- tive" ignores the facts that the statute contains no -12- "management prerogative" exception to the duty to bargain and that the Law court accordingly has on several occasions expressly rejected the argument. See, e.g., Board of Directors of M.S.A.D. No. 36 v. M.S.A.D. No. 36 Teachers Association, 428 A.2d 419, 423 n.6 (Me. 1981); State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980). Similarly, the argument that the proposals are not nego- tiable because of their "monetary impact" on the City is totally unsupported by the statute or the case law. The logical extension of the theory is that wages or any other item that has a monetary impact on the City is not nego- tiable, a proposition that obviously would render collective bargaining meaningless. We reaffirm that the test for determining the negotiability of a proposal, as we have stated on numerous occasions, is whether the proposal is significantly related to wages, hours, working conditions or contract grievance arbitration. Portland Firefiqhters Assn. v. City of Portland, MLRB No. 83-01, Slip op. at 5 n.3 (June 24, 1983). Applying our traditional test for determining whether a matter is a mandatory subject of bargaining, we hold that each of the changes effected by the new individual agreements creates a new condition of continued employment for the department's employees and is, therefore, a mandatory subject of bargaining within the meaning of Sec. 965(1)(C) of the Act. In order to retain their status as public employees and to continue receiving wages, each of the individuals executing the new agreements will, in the Employer's view, have to abide by each of the new requirements. Such requirements are, therefore, significantly related to the employees' wages and are themselves conditions of employment. We have held that something which must be done by an employee as a condition of employment is a working condition and, hence, is a mandatory subject of bargaining. Council 74, AFSCME v. City of Bangor, MLRB No. 80-50, Slip op. at 5 (Sept. 22, 1980). We have never before been presented with the necessity of deter- mining whether the specific requirements at issue constitute mandatory subjects of bargaining, and we have been unable to find any control- ling decisions thereon from the Maine courts. In such instances, the Law Court has stated that we should look for guidance to the parallel provisions of the National Labor Relations Act and the decisions thereunder. Baker Bus Service v. Keith, 428 A.2d 55, 56 n.3 (Me. 1981). The federal courts have held that work rules, the violation of -13- which could result in the imposition of discipline or discharge, Tower Hosiery Mills, Inc., 81 N.L.R.B. 658, 660 (1949), enforced 180 F.2d 701 (4th Cir. 1950), cert. denied, 340 U.S. 811, 71 S.Ct 38, 95 L.Ed. 596 (1950); see also NLRB v. Southern Transport, Inc., 343 F.2d 558, 559-560 (8th Cir. 1965) (sub silentio), and a rule requiring physical examinations as a condition of continued employment, NLRB v. Laney and Duke Storage Warehouse Co., 369 F.2d 859, 865 (5th Cir. 1966), are mandatory subjects of bargaining. Consistent with per- suasive federal authority and through application of our traditional test therefor we hold that, when the continued employment of public employees is conditioned upon their adherence to certain rules and regulations, those rules and regulations are inherently and signifi- cantly related to the employees' conditions of employment and are, therefore, subject to mandatory bargaining. The Employer's second defense is that its actions do not constitute unlawful unilateral changes because public employers are free under the Act to unilaterally determine the conditions of employment for new hires. We need not decide whether the terms and conditions of employment, during the first six months of employment, are mandatorily negotiable. Through its own admission, the Employer, by continuing to enforce the terms of the individual employment agreements against persons signing the same once they have become public employees and members of the bargaining unit, is attempting to unilaterally determine the conditions of employment for newly hired public employees. Unless such management action is permitted by the parties' collective bargaining agreement or is consistent with their well-established past practices, it will constitute a refusal to bargain in violation of Sec. 964(1)(E) of the Act. Maine Teachers Assn. v. State Board of Education, MLRB No. 86-14, Slip op. at 10 (Nov. 18, 1986); Lake Teachers Assn. v. Mount Vernon School Committee, MLRB No. 78-15, Slip op. at 3 (May 3, 1978). The Employer's third defense is that the changes at issue were permitted by the management rights clause of the parties' collective bargaining agreement. We will examine the merits of this averment together with our consideration of whether the changes in contention represent deviations from the parties' well-established practices -14- under the unilateral change rule. The first unlawful unilateral change alleged concerns the requirement that employees obtain and maintain certain emergency medi- cal technician certification levels, as a condition of continued employment. The record established the following relevant facts in connection with the emergency medical technician certification issue. During their first few years with the department, the firefighters primarily work on the department's ambulance. Prior to 1981, the ambulance was mainly used only to transport injured persons to local hospitals. In 1981, someone donated advanced life support equipment to the Employer and said apparatus was installed into the department's ambulance. The Maine Department of Human Services, pursuant to the provisions of 32 M.R.S.A. Secs. 72 and 73 and regulations issued thereunder, requires that persons working as ambulance personnel must obtain and maintain the emergency medical technician certification level appropriate to the level of service being provided. In order to assure that the fire department employees assigned to the ambulance were qualified to perform the services being offered, the Employer began requiring its new hires to execute the individual condition of employment agreement quoted in paragraph 5 of our findings of fact. That individual agreement required the employees signing the same to obtain both the basic emergency medical technician and the advanced life support certification levels, as conditions of employment. There is no mention whatsoever of emergency medical services in the parties' 1981-1982 collective bargaining agreement. In the salaries article (Article 24) of their 1982-1983 collective bargaining agreement, the parties recognized that some unit employees were per- forming ambulance work. That article stated, in relevant part, that "[i]n addition to the above salaries, members shall receive $1.00 per shift practicing advanced life support." In their 1983-1985 collec- tive bargaining agreement, the parties amended Article 24 to state, in pertinent part, that "[i]n addition to the above salaries, members practicing advanced life support shall receive four dollars ($4.00) per week." The same language appears in Article 24 of the parties' current collective bargaining agreement. This is the sole reference to the performance of ambulance work in the parties' collective -15- bargaining agreement. Throughout the period from 1981 on, the duties article (Article 8) in each of the parties' successor collective bargaining agreements have remained unchanged except that, in the last line thereof in the most recent collective bargaining agreement, the dispatchers' "clerical" functions have been changed to "electrical" functions. The relevant portion of the duties article in all of the agreements reads as follows: The duties of the members of the South Portland Fire Department shall be the prevention, control, and extinguish- ment of fire, and simple maintenance; such as, painting, cleaning, sweeping and minor repairs in the building and on the grounds, and simple maintenance on the equipment. Simple maintenance shall be construed to mean maintenance that does not normally require the use of special tools or mechanical aptitude. Also throughout this same time period, the management rights article has remained unchanged in each of the parties' successor collective bargaining agreements. That article reads as follows in each of the collective agreements: The listing of the following rights of management in this article is not intended to be, nor shall be, considered restrictive of, or as a waiver of, any of the rights of the City not listed herein. (a) Except as otherwise provided in this Agreement, the management and the direction of the working forces, including but not limited to, the right tohire, the right to hire part-time and temporary employees, the right to promote, the right to discipline or discharge for just cause, the right to lay off for lack of work or other legitimate reasons, the right to reduce the number of hours of operation, the right to transfer, the right to assign work to employees, the right to determine job content, the right to classify jobs and the right to establish reason- able rules, are vested exclusively in the City. (b) The City shall have the freedom of action to discharge its responsibility for the successful operation of its mission, including, but limited to [sic], the deter- mination of the number and location of its platoons, the service to be performed (except as otherwise mentioned in this contract) the apparatus, tools, equipment, and materials to be used, the work schedules and methods of operation. When read in conjunction with the duties article, the management rights article establishes that the Employer has bargained away its -16- right to assign work, to determine job content, and to determine the service to be performed by the bargaining unit employees whenever such decisions would substantially vary the duties explicitly provided for in the duties article of the collective bargaining agreement. Throughout the period from 1981 on, the parties have been aware that some bargaining unit employees have been performing ambulance work. Despite having this knowledge through at least three rounds of negotiations for successor collective bargaining agreements, the par- ties have not amended the terms of the duties article. Since the Union had the right to object to the Employer's assigning unit employees to perform ambulance work, through either the contractual grievance procedure or by filing a prohibited practices complaint, and has failed to do so for the past several years, the Union has waived its right to object to the continuation of the practice. Teamsters Local Union No. 48 v. City of South Portland, MLRB No. 86-05, Slip op. at 5-6 (Jan. 14, 1986); Maine State Employees Assn. v. State of Maine, MLRB No. 85-19, Slip op. at 22-23 (Dec. 2, 1985). However, under the unilateral change rule, that waiver cannot be used as an excuse from the duty to bargain over changes in the practice beyond that which has become "long-established" between the parties. We find that the established practice between the parties in con- nection with the emergency medical technician certification level issue is as follows. For their first few years of employment, bargaining unit employees have performed basic emergency medical tech- nician and advanced life support services. Under regulations issued by the Maine Department of Human Services, persons performing such services are required to maintain the emergency medical technician certification level appropriate to the level of services being per- formed. When bargaining unit employees have been on the job a few years and are no longer assigned to perform ambulance work, the Department of Human Services regulations no longer apply to them and they need not maintain any emergency medical technical certification level. The relevant portion of the new individual condition-of- employment agreement at issue here is Sec. 3(l), quoted in paragraph 8 of our findings of fact. Since the record did not establish that bargaining unit employees have performed emergency medical technician -17- critical care services in the past, the requirement that such a cer- tification level be obtained and maintained, as a condition of con- tinued employment, constitutes a change from the established practice. Once employees ceased performing ambulance duties in the past, they were under no obligation to maintain any sort of emergency medical technician certification. The requirement that the unit employees maintain emergency medical technician certification throughout their tenure and as a condition of continued employment is also a change from the parties' established practices.fn1 _______________ 1 In determining whether the changes at issue herein involved deviations from "well-established" practices, the Board could have limited its inquiry to the four corners of the collective bargaining agreement to ascertain those practices which had become established between the parties. Adopting that analysis, the Board could have concluded that Article 8 of the collective agreement unambiguously limited the duties that the Employer could require the bargaining unit employees to perform to "the prevention, control, and extinguishment of fire, and simple maintenance; such as, painting, cleaning, sweeping and minor repairs in the building and on the grounds, and simple maintenance on the equipment." In the collective agreement's management rights clause, the Employer explicitly limited its ability to "assign work to employees," to "determine job content," and to determine the "service to be performed" by the unit employees to the extent provided in the agreement. The unambiguous language of the duties article would, under the parole evidence rule applicable to ordinary contract analysis, preclude consideration of extrinsic evi- dence offered to vary the agreement's terms. Recognizing that a collective bargaining agreement is not an ordinary contract, we have declined to adopt this analysis. writing for a majority of the Court, Mr. Justice Black described the nature of collective bargaining agreements as follows: A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts, which control such private contracts. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, 84 S.Ct. 909, 914, 11 L.Ed.2d. 898; cf. Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173. "* * * [I]t is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. * * * The collective agreement covers the whole employment rela- tionship. It calls into being a new common law--the common law of a particular industry or of a particular plant." United Steelworkers of America v. Warrior & Gulf Nav. Co. 363 U.S. 574, 578-579, 80 S.Ct. 1347, 1351, 4 L.Ed.2d 1409. In order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom per- taining to all such agreements. -18- The second substantive provision contained in the new individual condition of employment agreement is Sec. 3(2) which is fully quoted in paragraph 8 of our findings of fact. The relevant portion of Article 20, the promotions article, of the parties' collective bargaining agreement, states: Promotions in all Fire Fighter grades (1,2 and 3) shall be determined by the standards of N.F.P.A. #1001 except all personnel hired prior to January 1, 1977, shall be irrevocably considered qualified and will be automati- cally certified at the highest level of N.F.P.A. #1001. While the relevant terms of the individual agreement resemble those of the pertinent collective agreement article, the former require bargaining unit employees to meet the various promotional standards within certain specified time limits while the latter do not. This change affects wage increases for the unit employees and is, there- fore, a mandatory subject of bargaining. Since the terms of the indi- vidual agreement differ substantially from the provisions of Article 20 of the collective bargaining agreement, the authority to implement such terms is not retained in the collective agreement's management rights article. The latter article only permits the Employer to establish reasonable rules in areas not "otherwise provided in this _______________ Transportation-Communications Emplovees Union v. Union Pacific Rail- road Co., 385 U.S. 157, 160-161, 87 S.Ct. 369, 371, 17 L.Ed.2d 264 (1966); reh'g denied 385 U.S. 1032, 87 S.Ct. 737, 17 L.Ed.2d 680 (1967). This case presents a situation where circumstances have evolved over a long period of time which vary a significant element of the employment relationship for bargaining unit employees from that described in the provisions of the collective bargaining agreement and where the parties, aware of those circumstances, have chosen to ignore them when negotiating and entering into a series of successor agreements. In such a case, the Board will examine actual long- standing practices as well as the applicable collective bargaining agreement in determining whether a particular management action vio- lates the unilateral change rule. The fundamental purpose of the Act is to "promote the improvement of the relationship between public employers and their employees." 26 M.R.S.A. Sec. 961 (1974). In this instance, that purpose is best served through application of the analysis which we have adopted in examining the nature of the "established" practices between the parties. Limiting our examination to the terms of the collective bargaining agreement would result in our ignoring a practice which has characterized the particular employment relationship for a number of years and would result in less rather than greater stability in that relationship. -19- Agreement." The remaining substantive provisions contained in the new indi- vidual employment agreement all bear the same relationship with the collective bargaining agreement and, therefore, lend themselves to the same analysis. These changes are found in Sec. 3(3) and (4) of the individual agreement quoted in paragraph 8 of the above findings of fact. These requirements, each of which must be met throughout an employee's tenure and as a condition of continued employment, are as follows: (1) the employee must possess a valid Maine driver's license at all times, (2) the employee must successfully complete annual phy- sical examinations and physical fitness tests, and (3) the employee is prohibited from purchasing, using, or selling "any illegal drug or narcotic" throughout his tenure. Since none of these topics is explicitly discussed in the parties' collective bargaining agreement, the agreement's management rights clause might appear to permit the Employer to implement changes therein; however, the authority reserved in the management rights clause may not be exercised in such a way as to infringe on the rights guaranteed in Article 19 of the collective agreement. Article 19, the prior practices article, states: Nothing in this Agreement shall be construed as abridging any right, benefit or privilege that members enjoyed heretofore, unless it is specifically superseded by a provision of the Agreement, or unless said benefit or privilege is changed by mutual consent. The evidence,in the record establishes that applicants for employment with the fire department: (1) have had to possess a valid Maine motor vehicle operator's license, South Portland Code, Sec. 19-11, Rule 1(c), p. 1330 (Supp. No. 14); (2) have had to successfully pass a pre- employment physical and physical fitness test, South Portland Code, Sec. 19-11, Rule 1(c) and Rule 2(g); and (3) could not, in a background investigation conducted by the police department, be engaged in "illegal use of narcotics or drugs or excessive use of intoxicating liquors." South Portland Code, Sec. 19-11, Rule 2(e)(2), p. 1333 (Supp. No. 14). The record further establishes that, in the past, bargaining unit employees were only required to submit to the single pre- employment physical and physical fitness tests; there is no evidence that either the driver's license requirement or the illegal drug pro- -20- viso were ever enforced as conditions of continued employment for unit employees. The unit employees' interest in being free from annual physical examinations and physical fitness tests, as well as the right not to be discharged in the event of suspension of their driver's license or of their violation of the drug proviso, are the sorts of rights protected by Article 19. Had the record established that any of these three additional conditions of employment were consistent with the parties' well-established practices, we would have held their imposition to be lawful. To judge from the evidence, however, the three substantive changes are conditions of continued employment and, hence, are mandatory subjects of bargaining. Second, since each came within the ambit of rights and privileges preserved by Article 19 of the collective agreement, the new con- ditions may not be imposed by the Employer pursuant to the agreement's management rights article. Whether particular employee conduct constitutes just cause so as to warrant the imposition of discipline is a matter to be determined by interpretation of the bargaining agreement's "just cause" provision through the contractual grievance procedure. However, the reservation of the right to dismiss for just cause does not amount to consent in advance to any elaboration of work rules that the employer chooses to make. The Employer's final defense, in connection with the allegation that its actions violated the statutory duty to bargain, is that the Union has waived its right to object to the changes at issue. During the round of negotiations which resulted in the 1984-1986 collective bargaining agreement between the parties, a Union negotiator allegedly stated that the Union did not care what the Employer did with proba- tionary employees. The Employer alleges that this utterance consti- tutes a waiver precluding the Union from objecting to the Employer's actions. To be effective as a waiver of the statutory duty to bargain, a waiver must be "clear and unmistakable." Gray-New Gloucester Teachers Assn. v. M.S.A.D. #15 Board of Directors, MLRB No. 85-01, Slip op. at 3 (Oct. 11, 1984). We have outlined this require- ment as follows: We have consistently required alleged waiver of statutory collective bargaining rights to be strictly proved. Our -21- construction of zipper and management rights clauses is aimed at giving purpose and meaning to the language which the parties have negotiated into a labor agreement. In pursuit of that goal we have required that the language in such clauses be "clear and unmistakable" to be given effect as a waiver . . . . [T]he right to bargain proposed changes in working conditions is a statutory and not a con- tractual right, the contractual waiver of which must be established by evidence of clear relinquishment, whether by express contract term or necessary implication. MSAD No. 54 Education Assn. v. MSAD No. 54, MLRB No. 86-12, Slip op. at 11-12 (Oct. 8, 1986). The quality of evidence required to establish "clear and unmistakable" waiver of collective bargaining rights has been described as follows: Where a statutory right is involved, the law of this cir- cuit is that "a waiver should be express, and that a mere inference, no matter how strong, should be insufficient." Communications Workers of America v. NLRB, 644 F.2d 923, 928 (1st Cir. 1981). Here, the Union's alleged statement was neither incorporated into the collective bargaining agreement nor was it unambiguous in its meaning. While the Union's statement could be interpreted as waiving the right to object over changes affecting individuals during their probationary periods, it does not reflect a clear relinquishment of the bargaining rights of bargaining unit employees. We hold that the Union's statement does not constitute a waiver of its right to object to the Employer's actions at issue herein. Standing in sharp contrast with the alleged waiver resulting from the Union's statement is the Employer's conduct in connection with its demand, during bargaining, for a mandatory physical fitness program for unit employees. During the round of negotiations which resulted in the 1984-1986 collective bargaining agreement between the parties, the Employer proposed a mandatory physical fitness program for bargaining unit employees. No agreement was reached on the Employer's proposal; however, Article 34, a health, safety and fitness provision, was incorporated as a completely new article in the successor collec- tive bargaining agreement. That article provides that a joint labor- management committee be constituted to establish guidelines for a physical fitness program and to function as the department's Fitness and Safety Committee. Article 34 explicitly provides that "[p]arti- -22- cipation in the fitness program shall not be mandatory, however, members not participating shall not be excused from regular duty assignments during designated fitness periods." As noted earlier in this opinion, the topic of physical examinations, as a condition of continued employment, is a mandatory subject of bargaining. The Employer's conduct, in withdrawing its original physical fitness proposal and in agreeing to the terms of Article 34, evidences a conscious relinquishment of the right to demand negotiations over a mandatory physical fitness program during the term of the parties' 1984-1986 collective bargaining agreement. The final consideration, which must be addressed in evaluating whether the Employer's action constituted a violation of the statutory duty to bargain, is the effect, if any, of the fact that the changes at issue were implemented through individual contracts of employment executed by new hires. We have recognized that individual contracts of employment may lawfully be issued in the context of a "comprehen- sive collective bargaining agreement . . . so long as the individual contracts do not conflict with the provisions of the comprehensive agreement." Waterville Teachers Assn. v. White, MLRB No. 81-23, Slip op. at 4 (Mar. 11, 1981). In its leading decision discussing the relationship between individual employment agreements and the collec- tive bargaining agreement, the Supreme Court of the United States stated: Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bar- gaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to fore- stall bargaining or to limit or condition the terms of the collective agreement. "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices." National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 364, 60 S.Ct. 569, 577, 84 L.Ed. 799. Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility. It is equally clear since the collective trade agree- ment is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled -23- under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his pre-existing contract of employment. J.I. Case Co. v. NLRB, 321 U.S. 332, 337-338, 64 S.Ct. 576, 580, 88 L.Ed. 762 (1944), see also Malia v. R.C.A. Corp., 794 F.2d 909, 912 (3d Cir. 1986). Since the purpose of the two acts is the same, we adopt the Supreme Court's view of the status of individual contracts of employment, within the collective bargaining context. Individual contracts of employment may not be used to waive or vary the terms of the collective agreement; therefore, the fact that such agreements were executed by persons who are now bargaining unit employees does not alter the statutory collective bargaining rights of such individ- uals. Concluding our discussion of whether the Employer's actions violated Sec. 964(1)(E) of the Act, we note that each element required to establish a violation of the unilateral change rule has been proven in connection with each of the changes sought to be implemented by the Employer. Each of the changes was implemented unilaterally by the Employer since the job applicants were required to execute the new individual agreements without advance notice thereof having been given to the Union. Second, each of the changes is either at variance with provisions of the parties' collective bargaining agreement or is a divergence from the well-established practices between the parties. Third, the changes at issue each involve one or more of the mandatory subjects of bargaining. We hold, therefore, that, by implementing the changes discussed above, the Employer has violated 26 M.R.S.A. Sec. 964(1)(E). The Union's second major contention was that the Employer's actions violated 26 M.R.S.A. Sec. 964(1)(A) (1974). We have long held that a public employer violates this section of the Act if it engages in conduct "which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Teamsters Local Union No. 48 v. Town of Oakland, MLRB No. 78-30, Slip op. at 3 -24- (Aug. 24, 1978); Maine State Employees Assn. v. State Development Office, MLRB No. 84-21, Slip op. at 8-9 (July 6, 1984), aff'd. 499 A.2d 165, 169 (Me. 1985). A public employer's unlawful changes in the mandatory subjects of bargaining not only violate the statutory duty to bargain but also inherently tend to interfere with the employees' exercise of the bargaining rights guaranteed by the Act. Teamsters Local Union No. 48 v. Town of Jay, MLRB No. 80-08, Slip op. at 4 (Jan. 9, 1980); Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 810 (Me. 1982). We conclude, therefore, that the Employer's unlawful unilateral changes in this case violated 26 M.R.S.A. Sec. 964(1)(A). The Union's final contention was that the Employer's conduct violated 26 M.R.S.A. Sec. 964(1)(C) (1974). We have repeatedly noted that that section of the Act "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby poten- tially dominating it." Teamsters Local Union No. 48 v. Town of Fort Fairfield, MLRB No. 86-01, Slip op. at 13 (Jan. 24, 1986); Teamsters Local Union No. 48 v. Eastport School Department, supra, at 8; Teamsters Local Union No. 48 v. Town of Kittery, MLRB No. 84-25, Slip op. at 4 (July 13, 1984). The Employer neither participated in nor otherwise supported the activities of the Union; therefore, the Employer did not violate Sec. 964(1)(C) of the Act. Having held that the Employer's actions violated Sec. 964(1)(E) and (A) of the Act, we will provide appropriate remedies to effecuate the policies of the Act. 26 M.R.S.A. Sec. 968(5)(C) (1974). In exercising our remedial authority, we seek "a restoration of the situation, as nearly as possible, to that which would have obtained" but for the commission of the prohibited practice. Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980). Since essentially all of the substantive provisions of the new individual condition-of- employment agreements transgress Sec. 964(1)(E) and (A) of the Act, we will order the Employer to cease and desist from enforcing the terms of said agreements against individuals who have become public employees and members of the bargaining unit represented by the Union. Second, the Employer will return each of the signed copies of the new -25- condition-of-employment agreements to the individuals who have signed the same, once said persons become public employees and members of the bargaining unit represented by the Union. Teachers Assn. of S.A.D. #49 v. Board of Directors of M.S.A.D. #49, MLRB No. 80-49, Slip op. at 10 (Nov. 18, 1980). 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. 968(5) (1974 & Pamph. 1986), it is hereby ORDERED: That the Respondent, City of South Portland, and its repre- sentatives and agents: 1. Cease and desist from enforcing the individual condi- tion-of-employment agreement quoted in paragraph 8 of our findings of fact against persons who have signed the same, once those persons become public employees and members of the bargaining unit represented by the South Portland Professional Firefighters, Local 1476, I.A.F.F., as its bargaining agent. 2. Return each of the signed copies of the individual condition-of-employment agreements mentioned in para- graph 1 of this order to the individuals who have signed the same, once said persons become public employees and members of the bargaining unit repre- sented by the South Portland Professional Firefighters, Local 1476, I.A.F.F., as its bargaining agent. Dated at Augusta, Maine, this 29th day of December, 1986. MAINE LABOR RELATIONS BOARD /s/_______________________________ The parties are advised of Edward S. Godfrey their right pursuant to 26 Chairman M.R.S.A. S 986(5)(F) (Pamph. 1986) to seek review of this decision and order by the Superior Court by filing /s/_______________________________ a complaint in accordance George Lambertson with Rule 80B of the Rules Employee Representative of Civil Procedure within 15 days of the date of this decision. Alternate Employer Representative Linda D. McGill filed a -26- separate opinion, dissenting in part. OPINION I dissent in part. I do not agree that the City acted uni- laterally in violation of 26 M.R.S.A. Sec. 964(1)(A) and (E) in imple- menting those portions of the preemployment agreement requiring an employee to maintain his or her driver's license and to refrain from the purchase, sale or use of illegal drugs in order to remain employed. In finding a violation based on these two provisions, the majority relies on (1) the lack of an explicit article in the bargaining agreement which sanctions discipline or discharge for failure to meet these requirements; (2) the "prior practices" article in the agreement; (3) the lack of evidence in the record that the City has discharged or disciplined employees in the past for failing to meet these requirements; and (4) the general principle that work rules which affect continued employment are mandatory subjects of bargaining. But the proper analysis begins and ends with the manage- ment rights clause in the bargaining agreement. That clause expli- citly reserves to the City the "right to discipline and discharge for just cause" as well as the right to "establish reasonable rules." In the pre-employment agreement, the City is doing no more than notifying prospective employees that involvement with illegal drugs or failure to maintain a driver's license (presumably because a license is necessary for an employee to be able to perform his or her job) will be just cause for discharge. Under the management rights clause--as well as under its reserved rights--the City may determine that it considers such conduct just cause. If any employee is indeed discharged for such conduct, the employee and union may claim that the City's action is in error, either because the misconduct alleged can never be just cause for discharge or because in the individual case discharge is not warranted. But the union has waived the right to claim that the City may not establish what it considers just cause, subject to the union's challenge in an individual case. Maine State Employees Association v. State of Maine, MLRB No. 82-05, Slip op. at -27- 17 (Dec. 22, 1982) (No duty to bargain mid-term over overtime compen- sation and standby pay because subjects are covered in collective bargaining agreement.), rev'd on other grounds. State of Maine v. Maine State Employees Assn., 499 A.2d 1228 (Me. 1985). The majority's reasoning and conclusion to the contrary on these points could be construed as meaning that whenever an employer deter- mines in advance that certain conduct will be just cause for discharge, that determination must be bargained before implementation. This is not a correct view of contract construction, the labor law, or the realities of the workplace. Tower Hosiery Mills, Inc., cited by the majority, does not support their view. In Tower Hosiery Mills, Inc. there was no collective bargaining agreement in place. Here, there is an agreement evidencing that the parties have bargained over discipline and discharge and have come up with an accommodation: the City may discipline and discharge for just cause. Accordingly, I would not order the City to cease and desist form implementing its determination that failure to maintain a driver's license or involve- ment with illegal drugs will result in termination, by so notifying its prospective employees and enforcing that determination. This case illustrates the pitfalls for both this Board and the parties when the Board must become immersed in construing the collec- tive bargaining agreement in order to determine the issues before it. I believe that the Board should exercise its deferral authority broadly, deferring to an arbitrator whenever it appears from the face of the complaint or at any point in the case thereafter that the meaning of a collective bargaining agreement is central to resolution. Of course, the Board may retain jurisdiction to hear and determine statutory claims that have not been adequately resolved through arbitration. Collyer Insulated Wire, 192 NLRB 1080, 77 LRRM 1931 (1971); Maine State Employees Assn. v. State of Maine, MLRB Case No. 86-09, Slip op. at 6 (Apr. 23, 1986). In general, when the complain- ant's primary charge is unilateral action and the employer raises an existing agreement in defense, the case is appropriate for deferral. By casting their dispute in statutory terms, parties should not be allowed to evade their agreed-upon grievance and arbitration mecha- -28- nism. In Maine public sector bargaining law, as under the NLRA and federal labor law policy, grievance arbitration is one of the most important tools of collective bargaining and is strongly encouraged. Westbrook School Committee v. Westbrook Teachers Assn., 404 A.2d 204, 207-208 (Me. 1979). In this case, the Board inquired of the City whether it would be willing to proceed to arbitration. The City declined, taking the position that the dispute was inarbitrable because of timeliness. The Board therefore did not consider deferral. A party taking this posi- tion should be forewarned that the result may be that the Board will grapple with contract interpretation of necessity, and that the par- ties will have to live by that interpretation for the remainder of the contract term, even though they have previously agreed on arbitration as the method for determining their rights under the contract. Dated at Augusta, Maine, this 23rd day of December, 1986. MAINE LABOR RELATIONS BOARD __________________________________ Linda D. McGill Alternate Employer Representative -29-