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,
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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
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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;
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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
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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.
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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.
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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.
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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
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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
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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.
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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).
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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
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"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
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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
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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
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