STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 89-06
Issued: September 5, 1989
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
STATE OF MAINE, )
)
Respondent. )
____________________________________)
The question presented in this prohibited practice case is whether the
State of Maine (hereinafter referred to as "Employer") violated 26 M.R.S.A.
979-C(1)(E) and (A) by unilaterally refusing to continue enforcing the
terms of a particular Memorandum of Agreement, entered into by the Employer
and the Maine State Employees Association ("Union") and concerning the pro-
motional, layoff and recall rights of employees in two organizational units
within the Maine Department of Labor. We hold that the Employer's action
violated the State Employees Labor Relations Act ("Act"), 26 M.R.S.A.
Ch. 9-B (1988). We will, therefore, fashion a remedy to redress this
violation and to effectuate the policies of the Act.
The prohibited practice complaint was filed on September 9, 1988, pur-
suant to 979-H(2) of the Act, by the Maine State Employees Association.
The Union's complaint charges that the Employer violated the section of the
Act mentioned in the preceding paragraph by unilaterally repudiating the
promotional procedures established by the January 20, 1984 Department of
Labor agreement ("DOL agreement"). The Employer filed its answer on
September 30, 1988, denying that its action transgressed any provision of
the Act, alleging that it acted in compliance with the parties' applicable
collective bargaining agreements, and moving to dismiss the Union's
complaint.
A prehearing conference on the case was held on October 13, 1988,
Alternate Chair Peter T. Dawson presiding. On October 28, 1988, Alternate
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Chair Dawson issued a Prehearing Conference Memorandum and Order, the con-
tents of which are incorporated herein by reference. Pursuant to the
Prehearing Order, the parties filed a stipulation concerning the historical
background of their dispute and each party filed a prehearing memorandum,
outlining their legal positions.
A hearing on the merits of the case was conducted by the Maine Labor
Relations Board ("Board"), Alternate Chair Jessie B. Gunther presiding,
with Alternate Employer Representative Carroll R. McGary and Employee
Representative George W. Lambertson, on December 5, 1988. The Complainant
was represented by Roberta L. deAraujo, Esq., and the Respondent was repre-
sented by Julie M. McKinley, Esq. The parties were given full opportunity
to examine and cross-examine witnesses, to introduce documentary evidence,
and to make argument. The parties filed posthearing briefs, the last of
which was received on May 18, 1989, which were considered by the Board in
reaching its decision. The Board met to deliberate on the case on June 2,
1989. Pursuant to a request made by Alternate Cnair Gunther at the hearing
and renewed by Board staff, the Employer provided a copy of the federal
rule, that related to the addition of the former unclassified Department of
Labor unit employees to the classified service, on June 7, 1989.
JURISDICTION
The Complainant Maine State Employees Association is the certified
bargaining agent, within the meaning of 26 M.R.S.A. 979-H(2), for the
State employee Administrative Services; Operations, Maintenance and Support
Services; Law Enforcement Services; Professional and Technical Services;
and Supervisory Services bargaining units. The Respondent State of Maine
is the public employer, within the definition of 26 M.R.S.A. 979-A(5), of
the employees whose classifications are included in the bargaining units
mentioned in the preceding sentence. The jurisdiction of the Maine Labor
Relations Board to hear this case and render a decision and order herein
lies in 26 M.R.S.A. 979-H.
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
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1. The Maine State Employees Association is the certified bargaining
agent, within the meaning of 26 M.R.S.A. 979-H(2), for the State employee
Administrative Services; Operations, Maintenance and Support Services; Law
Enforcement Services; Professional and Technical Services; and Supervisory
Services bargaining units.
2. The State of Maine is the public employer, within the definition
of 26 M.R.S.A. 979-A(5), of the employees whose classifications are
included in the bargaining units mentioned in the preceding paragraph.
3. In 1983, there were approximately 80 to 100 positions within the
Maine Department of Labor that were funded by the federal government,
through the Job Training Partnership Act ("JTPA"). The JTPA positions were
unclassified, within the meaning of 5 M.R.S.A. 931, et seq. Unclassified
positions are not subject to the requirements of the civil service system
for hiring purposes. Unclassified employees were treated as applicants
from outside State service, if they sought to occupy classified positions
with the State, and, upon layoff, unclassified employees could not displace
or "bump" employees in classified positions.
4. All of the unit employees in the Department of Labor, whether
classified or unclassified, were and continue to be represented by the
Maine State Employees Association and are in one of the bargaining units
mentioned in paragraph 1 hereof.
5. As early as 1979, the Federal Office of Personnel Management
sought to pressure the Department of Labor to incorporate the JTPA posi-
tions into the classified service. No action was taken to classify the
JTPA Positions as a result of the federal action.
6. Chapter 489 of the Public Laws of 1983 was interpreted by the
Bureau of Budget, Department of Finance and Administration, as requiring
that virtually all Department of Labor employee classifications, including
the JTPA positions, be included in the classified service.
7. On November 23, 1983, the State Department of Personnel informed
the Union of its intention to classify the JTPA positions, after completion
of a reduction in force of JTPA staff in late January, 1984.
8. On December 23, 1983, the Union sent a letter to the Commissioner
of Personnel that stated: "We have been apprised of the State's intention
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to classify all unclassified Job Training Partnership Act positions effec-
tive January 9, 1984. We hereby demand negotiations over this action and
its impact on employees represented by MSEA."
9. The parties' 1982-83 collective bargaining agreements expired on
June 30, 1983, and the parties were negotiating for successor agreements
until such agreements were executed on September 11, 1984.
10. In response to the Union's demand for negotiations, mentioned in
paragraph 8 above, the parties met during a ten-day period and concluded
the DOL agreement of January 20, 1984. During said negotiations, the
Department of Personnel was represented by the Assistant to the
Commissioner, the Governor's Office of Employee Relations was represented
by its Chief Counsel, and the Department of Labor was represented by its
Personnel Manager and its Director of Administrative Services.
11. The DOL agreement establishes two organizational units of
Department of Labor employees--one consisting of the former unclassified
unit employees and the other composed of all of the other unit employees.
The DOL agreement also specifies procedures governing promotions, layoffs,
and recalls from layoff for employees in the two organizational units. The
DOL agreement continued the designation of "agency promotional" for certain
classes of DOL employees and specified that "agency promotional preference
[for those classes] shall be continued to those employees within the organ-
izational unit."
12. The DOL agreement contains no expiration date; however, the last
paragraph of the agreement states: "It is the intent of the parties that
the two organizational units established hereby will eventually be merged
upon terms and conditions to be negotiated at that time by the parties."
13. The parties' 1982-83, 1984-86, and 1986-87 collective bargaining
agreements provide:
Following execution of this Agreement, the State and MSEA shall
negotiate to establish appropriate organizational unit divisions.
In the event that the parties are unable to agree to appropriate
organizational units and unit divisions within sixty (60) days
after the execution of the Agreement, either party may submit the
dispute at any time thereafter for a binding determination to a
qualified arbitrator mutually agreed upon by the parties or
selected through the American Arbitration Association in
accordance with the rules and procedures of that Association.
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The parties' 1987-89 collective bargaining agreements provide the foregoing
language with the exception of the clauses, "following execution of this
Agreement" and "within sixty (60) days after execution of the Agreement."
14. The parties' 1984-86, 1986-87, and 1987-89 collective bargaining
agreements provide: "Current procedures for filling of vacancies in the
competitive service shall be continued during the term of this Agreement."
15. The parties' 1984-86, 1986-87, and 1987-89 collective bargaining
agreements provide:
With respect to negotiable wages, hours and working
conditions not covered by this Agreement, the State agrees to
make no changes without appropriate prior consultation and
negotiations with the Association unless such change is made
to comply with law, and existing regulations, Personnel Rules,
written Policies and Procedures, General Orders, General
Operating Procedure, or Standard Operating Procedure.
16. The Conclusion of Negotiations articles of the parties' 1984-86,
1986-87, and 1987-89 collective bargaining agreements state:
A. The State and MSEA agree that this Agreement is the entire
Agreement, terminates all prior Agreements or understandings
and concludes all collective negotiations during its term.
Neither party will during the term of this Agreement seek to
unilaterally modify its terms through legislation or other
means which may be available to them.
B. Each party agrees that it shall not attempt to compel nego-
tiations during the term of this Agreement on matters that
could have been raised during the negotiations that preceded
this Agreement, matters that were raised during the negotia-
tions that preceded this Agreement or matters that are
specifically addressed in this Agreement.
17. In December, 1984, the Employer requested the Union to consider
renegotiation of the DOL agreement. Representatives of the Employer and
the Union had two meetings to discuss the matter, one occurring in 1984 and
the other in 1985. The Union informed the Employer that it was not
interested in renegotiating the DOL agreement at that time.
18. From January, 1984, through at least mid-March, 1988, the Employer
and the Department of Labor applied the DOL agreement to determine the pro-
motional, layoff and recall rights of employees covered by the DOL
agreement. The Employer and the Union may have had disputes over applica-
tion of the DOL agreement in isolated cases but, by and large, the Employer
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complied with the DOL agreement throughout that period.
19. In late March of early April, 1988, the Department of Labor
intended to fill one or more vacant positions in the job classification of
Employment and Training Specialist IV ("ETS IV") from an "open competitive"
register, which would include applicants from outside State service.
20. The ETS IV classification is one of those covered by the DOL
agreement. The DOL agreement in paragraph 7 requires that vacant positions
in the ETS IV classification be filled from an "agency promotional"
register, consisting of applicants from within the same organizational unit
as the vacant position.
21. Because the Department of Labor was seeking candidates from out-
side State service, the Union filed a class action grievance against the
Employer on behalf of all employees who might thereby be denied promotional
opportunities to which they were entitled under the DOL agreement.
22. The Union and the Employer agreed to bypass Steps 1 and 2 of the
grievance procedure in the class action grievance. At Step 3 of the
grievance procedure, the grievance was heard by the Bureau of Employee
Relations, Department of Administration ("BOER").
23. The parties' Step 3 meeting took place on May 17, 1988. Present
at that meeting were the Union's Director of Field Services, the two
grievants named in the class action grievance, Anne Farrar and Edwin
Roberts, the Personnel Manager for the Department of Labor and a Labor
Relations Specialist for BOER.
24. At the May 17, 1988 meeting, the Departmental Personnel Manager
informed the Union's Director of Field Services and the Labor Relations
Specialist that the Department of Labor's position was that the DOL
agreement was no longer valid or enforceable. The Personnel Manager
further stated that the DOL agreement became invalid and unenforceable in
March, 1988. When asked the basis for the Department's position, the
Personnel Manager said "Three years sticks in my mind."
25. Never before the May 17, 1988, Step 3 meeting had any represen-
tative of the Department of Labor or the Employer indicated to the Union
that the DOL agreement had at any point become invalid or unenforceable.
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26. A Step 3 grievance meeting ordinarily culminates in a written
decision by the Labor Relations Specialist who has heard the positions of
the Union and the department involved. BOER has the power at Step 3 to
uphold a grievance brought by the Union and award an appropriate remedy.
27. The Labor Relations Specialist issued BOER's decision on the class
action grievance on June 9, 1988. BOER denied the grievance, taking the
position that the DOL agreement was no longer in effect after September 3,
1984 or, apparently in the alternative, that it was no longer in effect
after January, 1986.
28. Shortly after the Union received BOER's Step 3 decision, the
Union's Chief Negotiator contacted the Director of BOER to arrange a
meeting between the Union and the Employer concerning the DOL agreement.
The Director of BOER agreed to a meeting, which took place on June 27, 1988.
29. Present at the June 27, 1988 meeting for the Union were its Chief
Negotiator, its Director of Field Services, its Assistant Negotiator and
its Chief Counsel. Present at that meeting for the Employer were the
Director of BOER, BOER's Chief Counsel, the Department of Labor's Personnel
Manager and its Director of Adminstrative Services, and the Director of
Planning and Operations of the Bureau of Human Resources.
30. At the June 27, 1988 informal meeting, the Union informed the
Employer that in its view BOER's June 9, 1988 decision represented a uni-
lateral change in mandatory subjects of bargaining, in violation of the DOL
agreement, the current collective bargaining agreements and the State
Employees Labor Relations Act. The Union further informed the Employer
that it would consider a request from the Employer to renegotiate the terms
of the DOL agreement, but only if tne Employer were to restore the status
quo ante by making affected employees whole and by continuing to comply
with the terms of the DOL agreement, unless and until the parties renego-
tiated it. The Employer informed the Union that it would not agree to
restoration of the status quo ante. Nonetheless, the parties agreed to one
or more further meetings on the subject.
31. The parties met again informally on July 5 and July 6, 1988. The
Employer was represented by the same persons at the July 5 and 6 meetings
as at the June 27 meeting. At the July 5 meeting, the Union was repre-
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sented by its Director of Field Services and its Assistant Negotiator. At
the July 6 meeting, the Union was represented by its Assistant Negotiator.
On July 15, 1988 the Union Assistant Negotiator and the Director of BOER
spoke by phone on the same subject. Throughout these informal meetings and
discussions, the Union continued to state its willingness to consider rene-
gotiation of the DOL agreement if the Employer were to restore the status
quo ante, and the Employer refused to restore the status quo ante.
32. The parties have had no further substantive discussions on
restoration of the status quo ante or on renegotiation of the DOL agreement
since the telephone conversation of July 15, 1988, noted in the preceding
paragraph.
33. The Union's class action grievance is currently at the arbitration
step (Step 4) of the grievance procedure.
34. The Employer is no longer complying with the DOL agreement.
35. In declaring the DOL agreement invalid and unenforceable and in
refusing to comply with the terms of the DOL agreement, the Employer acted
unilaterally in that it failed to give the Union advance notice of its
action and it implemented said action without negotiating with the Union
over either the action or its impact on the wages and working conditions of
the employees affected thereby.
36. At the hearing on the merits, the Employer offered as a stipula-
tion that the Employer has taken the position that, at all relevant times,
the DOL agreement remains in effect as to the two organizational units
created thereby, but not as to its promotional aspects. Under the stipula-
tion accepted by the Union, the DOL agreement remains in effect as any
other organizational agreement between the parties, separating the
Department of Labor into two organizational units.
DISCUSSION
The statutory obligation to bargain collectively continues throughout
the time that an employee organization is certified or recognized as the
bargaining agent for a unit of public employees, unless the public employer
and the bargaining agent have provided otherwise in a prior written
agreement. 26 M.R.S.A. 979-D(1)(B). Concomitant with the duty to
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bargain is the prohibition against public employers making unilateral
changes in the mandatory subjects of bargaining. The rationale behind the
unilateral change rule and its elements are as follows:
Changes in the mandatory subjects of bargaining implemented
unilaterally by the public employer contravene the duty to
bargain created by 965(1) of the Act and violate 26 M.R.S.A.
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 964(1)(E), three
elements must be present. The public employer's action must:
(1) be unilateral, (2) be a change from a well-established
practice, and (3) involve one or more of the mandatory subjects
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 nego-
tiations on the contemplated change. City of Banqor v.
A.F.S.C.M.E., Council 74, 449 A.2d 1129, 1135 (Me. 1982).
Teamsters Local Union No. 48 v. Washinqton County Commissioners, MLRB No.
89-07, slip op. at 7 (Apr. 4, 1989), citing Kittery Employees Association
v. Strahl, MLRB No. 86-23, 9 NPER ME-18010, slip op. at 9 (Jan. 27, 1987).
Although the above cases were decided under the Municipal Public Employees
Labor Relations Law, 26 M.R.S.A. Ch. 9-A, the same principle applies pur-
suant to the parallel section of the Act, 26 M.R.S.A. 979-D(1)(E)(1).
State v. Maine Labor Relations Board, 413 A.2d 510, 515 (Me. 1980).
It is undisputed that the Employer acted unilaterally in the instant
case. Second, it is well established that the topics included in the DOL
agreement are mandatory subjects of bargaining, absent the unique language
of the Act, and the Employer has not argued to the contrary. We have held
that procedures for filling vacancies, Council 74, AFSCME, AFL-CIO v. Old
Town City Council, PELRB Nos. 75-12 & -27, slip op. at 3 (July 9, 1975);
East Millinocket Teachers Association v. East Millinocket School Committee,
MLRB No. 79-24, 1 NPER 20-10010, slip op. at 5 (Apr. 9, 1979); and those
concerning layoffs and recalls, Palermo Teachers Association v. Palermo
School Committee, MLRB No. 81-29, 4 NPER 20-12023, slip op. at 5-6 (May 22,
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1981); Teamsters Local Union No. 48 v. City of Augusta, Board of Education,
MLRB No. 78-04, slip op. at 6-7 (June 7, 1978); Caribou School Department
v. Caribou Teachers Association, MLRB No. 76-15, slip op. at 6-7 (Jan. 19,
1977); are mandatory subjects of bargaining. The Employer contends that
the topics contained in the DOL agreement are not mandatory subjects of
bargaining because the substance of the agreement pertinent to such topics
is "in derogation of or contravenes the spirit and intent of merit system
principles and personnel laws," within the meaning of 979-D(1)(E)(2),
and, to the extent of the latter, such subjects are "prescribed or
controlled by public law," within the meaning of 979-D(1)(E)(1).
We conclude that although the DOL agreement tests the limits of the
merit system, it is within its level of tolerance. Establishing the
parallel promotional, layoff and recall systems was within the authority of
the Commissioner of Personnel, and because actual selection within the
separate groups is based upon an applicant's qualifications, the merit
system is not violated. The agreement was a product of appropriate collec-
tive bargaining and should not be set aside in the absence of a clear stat-
utory violation.
The spirit and intent of merit system principles and the personnel law
are embodied in 5 M.R.S.A. 7031. The basic tenets upon which the person-
nel laws are based are as follows:
[1.] . . . that all qualified Maine citizens have fair and
equal opportunity to enter the service of State Government
on the basis of merit and to work free from the forces of
favoritism, nepotism and political patronage.
[2.] . . . that individuals possessing the knowledge and skills
necessary for the effective operation of State Government
are hired and retained. [and]
[3.] . . . that the provisions of the Civil Service Law are
carried out in an open, fair and expeditious manner, with
the objective of hiring and retaining the best person for
a position as quickly as possible.
The term "best person for a position" is nowhere defined in the per-
sonnel law, but 5 M.R.S.A. 7064 provides that the Employer will fill
positions in the classified service in accord with the Employer's personnel
policies and procedures. Chapter 6 of the State Personnel Rules establishes
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examination procedures to determine which candidates for initial hire
and/or to fill promotional vacancies possess the knowledge and skills
required to perform the duties of particular positions in State service.
Objective examinations are held and individual candidates' fitness for
particular positions are evaluated as follows:
Appropriate scientific techniques and procedures shall be
used in rating the results of examinations and determining the
relative ratings of the competitors. In all examinations the
minimum ratings by which eligibility may be achieved shall be
set by the Commissioner. The final examination grade may be
based on all the factors of the examination, including educa-
tional requirements, experience and other qualifying elements
as shown in the competitor's application or other verified
information. The final earned rating of each competitor shall
be determined by averaging the earned ratings on each part of
the examination in accordance with the weights established for
each part prior to the date of the examination. All competitors
shall be required to obtain at least a minimum rating in each
part of the examination in order to receive a final passing
grade or to be rated on the remaining parts of the examination.
State of Maine, Personnel Rules, Ch. 6, 6(A). Those candidates who are
qualified to serve in a particular classification are then placed on an
"Eligible Register" for that classification and any vacancy in that posi-
tion will be filled from such register. Id., Ch. 7, 1(B)(1). Eligible
Registers are maintained on the basis of employment classifications and are
" . . . statewide in application except where these rules or action of the
Commissioner [of Personnel] specifically makes provision for establishment
of lists by geographical area, agency or organizational unit." Id., Ch. 7,
1(A)(1). The Personnel Rules provide that:
Agency promotional registers shall consist of the names
of all permanent and probationary persons employed in the
agency or organizational unit or employees on layoff registers
from the agency or organizational unit who have passed the
agency promotional examination for the class for which the list
is established. Names shall be placed on an agency promotional
register in the order of final earned ratings.
Id., Ch. 7, 3(B)(1).
Promotional registers based on organizational units may be created as
follows:
An appointing authority may propose subdivision of his
agency into organizational units for purposes of employment or
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layoff by submitting to the Commissioner a written plan for
such subdivision together with the reasons therefor. Such
organizational units may be established on the basis of geo-
graphic area, function, or class of employment and may be
different for different classes of employment.
2. Approval by Commissioner
a. The Commissioner shall consider such
proposal and the needs of the state
service, and may establish organizational
units within the agency. The Commissioner
shall notify the appointing authority of
establishment of organizational units and
such units shall thereafter be used for
employment or layoff.
b. The Commissioner may cancel established
organizational units upon notice to the
appointing authority at any time such
action is deemed to be in the best
interest of the state service.
Id., Ch. 12, 4(B)(1). As noted, the State has stipulated to the con-
tinued existence of the two DOL organizational units. While the DOL
agreement limits the initial pool of eligible employees to those within the
organizational unit in which a promotional vacancy occurs, only those
employees who have been determined to be qualified to fill the vacancy will
be on the agency promotional roster. Furthermore, the relative fitness
among qualified employees within the organizational unit is reflected by
their respective placement on the agency promotional roster. There was no
suggestion in the record that application of the DOL agreement resulted in
favoritism, nepotism or political patronage. The two organizational units
were created and the agency promotional registers were established by the
Comissioner of Personnel, exercising the authority granted by the Personnel
Rules, through the collective bargaining process as required by the statu-
tory duty to negotiate. State v. Maine Labor Relations Board, 413 A.2d
510, 515 (Me. 1980); State v. Maine State Employees Association,
443 A.2d948, 953 n.6 (Me. 1982). The classes that were established as "agency
promotional" were those which had been traditionally designated as such by
the Department of Labor. Since the substance of the DOL agreement was
expressly permitted by the Personnel Rules, such agreement did not contra-
vene the spirit and intent of merit system principles or the personnel law.
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In addition to its broad objections to the DOL agreement, the Employer
raised additional criticisms, arguing that the agreement contravened merit
system principles by: (1) limiting Employer flexibility in the creation
and elimination of procedures for promotions, layoffs and recalls, (2)
requiring the hiring authority to make a promotional appointment, even
though fewer than three applicants are certified to fill a vacancy, and (3)
limiting the hiring authority's flexibility in requesting an expanded cer-
tification to include members of under-represented groups. A diminishment
of Employer flexibility is inherent in subjecting decisions concerning
employee wages, hours and working conditions to mandatory collective
bargaining; therefore, such loss of flexibility cannot in and of itself
contravene the spirit and intent of merit system principles or the person-
nel law. Second, the result required under the DOL agreement, that the
employer must promote an employee on the promotional register even if there
are fewer than three eligible employees on said register, is expressly per-
mitted by the Personnel Rules. Chapter 8, 2(C) of the Personnel Rules
states:
Whenever, in accordance with the method of certification,
location and hours of work involved, the number of persons
on a class register who are available and interested in the
position vacancy is less than three, the agency may:
1. Make its selection from this number; . . . .
The limited number of eligible candidates results from the use of an
"agency promotional" register, a process explicitly authorized by the
Personnel Rules, and not from the DOL agreement itself.
The employer's third specific objection to the DOL agreement is that
it precluded the use of expanded certifications which might be required for
affirmative action purposes. The Personnel Rules provide that affirmative
action authority may be exercised formerly by the Commissioner of Personnel
and now by the Director of the Bureau of Human Resources if either of the
following occurs:
1. Statistical disparities between the work force represen-
tation and the labor market representation of groups
historically excluded from or limited in employment due
to sex, handicap or minority status are identified and
documented; or
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2. Analysis of testing procedures for placement on a class
register documents an adverse effect on a particular
group identified by sex, handicap, age, national origin
or minority status.
State of Maine, Personnel Rules, Ch. 8, 5(B). In instances where either
of the above criteria are met, the Director of the Bureau of Human
Resources may make an affirmative action certification. Id., Ch. 8,
5(C)(3). Such action by the Director is expressly authorized by the
Non-Discrimination Articles of the parties' collective bargaining
agreements. Finally, while the record revealed a single instance where a
disabled veteran was not considered for employment with the Department of
Labor because of the DOL agreement, the record was devoid of evidence that
the agreement had resulted in any discrimination that would have warranted
implementation of affirmative action certifications.
The Employer's second major defense was that its action did not
constitute a violation of the unilateral change rule because the DOL
agreement did not constitute an established enforceable practice. The
Employer's averment is based on the premise that the DOL agreement expired
in September, 1984, when the parties executed successor collective
bargaining agreements. Those successor agreements contained Conclusion of
Negotiations Articles which state, in relevant part:
The State and MSEA agree that this Agreement is the
entire Agreement, terminates all prior Agreements or under-
standings and concludes all collective negotiations during
its term. Neither party will during the term of this Agree-
ment seek to unilaterally modify its terms through legislation
or other means which may be available to them.
The Board has interpreted this clause as follows:
Read within the context of its entire sentence and of the
Article as a whole, the quoted verbiage is clearly meant to
be an integration clause. Corbin on Contracts (One Volume
Edition), Section 538 (West Publishing Co. 1952). The pur-
pose of said clause is to limit the agreement between the
parties to that which is within the four corners of the
writing and to exclude parol evidence which could contradict
or amend the written agreement.
Maine State Employees Association v. State of Maine, MLRB No. 82-05, 5 NPER
20-14010, slip op. at 7 (Dec. 22, 1982), aff'd in rel. part State of Maine
v. Maine State Employees Association, 499 A.2d 1228, 1230 (Me. 1985). Even
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if the Employer is correct in its assertion that an integration clause
extinguishes past practices and renders them unenforceable, such a clause
does not terminate agreements and understandings that have been incor-
porated into the substantive provisions of the collective bargaining
agreement.
The promotional procedure section of the DOL agreement, the provision
that gave rise to the instant controversy, was incorporated into the
Seniority Articles of the parties' 1984-1986 collective bargaining agree-
ments and those of successor agreements, in effect through June 30, 1989.
The relevant paragraphs of the Seniority Articles entitled "Filling of
Competitive Vacancies" in all of the parties' agreements begin with the
sentence: "[c]urrent procedures for filling of vacancies in the com-
petitive service shall be continued during the term of this Agreement."
The Employer argues that the "current procedures" mentioned in the
Seniority Articles refer to the "entire system of filling vacancies set out
in the Personnel Law and Rules," Brief on Behalf of Employer, at 10, and
not to the "deviant" practice resulting from the DOL agreement. Id., at
11. We disagree. The plain meaning of the relevant words contained in the
parties' agreements is that the practices for selecting individuals to
serve in positions in the classified State service in effect at the time
that agreement was reached on each of the successor collective bargaining
agreements were to continue during the term of each such agreement.
The DOL agreement constitutes a procedure for the filling of vacancies for
certain classifications in the Department of Labor, and it was in effect
when the parties negotiated their 1984-1986 collective bargaining
agreements and the successor agreements thereto; therefore, the promotional
aspects of the DOL agreements were incorporated into the Seniority Articles
of the parties' 1984-86, 1986-87 and 1987-89 collective bargaining
agreements and constituted enforceable past practices at the time of the
Employer's action that is the subject of the instant case.
In sum, all of the elements necessary to establish an unlawful uni-
lateral change are present in this case. The Employer unilaterally dis-
continued the promotions practice established by the DOL agreement and
applicable to certain classifications within the Department of Labor.
The promotions practice at issue constituted a mandatory subject of
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bargaining, within the meaning of 979-D(1)(E)(1) of the Act and was
neither in derogation of nor contravened the spirit and intent of merit
system principles and personnel laws. Third, the promotions practice
established by the DOL agreement was a well-established enforceable prac-
tice that had been incorporated into the parties' successor collective
bargaining agreements since 1984. We conclude that the Employer's discon-
tinuance of the promotional aspects of the DOL agreement in April, 1988,
was inconsistent with the Employer's duty pursuant to 979-D(1)(E)(1) and
violated 979-C(1)(E) of the Act.
The Union's second major contention was that the Employer's action
violated 26 M.R.S.A. 979-C(1)(A). 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." Maine State Employees Association v. State
Development Office, MLRB No. 84-21, 7 NPER 20-15017, slip op. at 8-9
(July 6, 1984), aff'd. 499 A.2d 165, 169 (Me. 1985). Unlawful unilateral
changes not only violate the statutory duty to negotiate but also
inherently tend to interfere with the employees' exercise of the bargaining
rights guaranteed by the Act. Lane v. Board of Directors of M.S.A.D No. 8,
447 A.2d 806, 810 (Me. 1982); Auburn Firefighters Association v. Valente,
MLRB No. 87-19, 10 NPER ME-18017, slip op. at 12 (Sept. 11, 1987).
We conclude, therefore, that the Employer's unlawful unilateral change
violated 979-C(1)(A) of the Act.
Having held that the Employer's action violated 979-C(1)(E) and (A)
of the Act, we will provide such remedies as are necessary to effectuate
the policies of the Act. 26 M.R.S.A. 979-H(3). 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
101O, 1016 (Me. 1980). In addition to ordering the Employer to cease and
desist from making an unlawful unilateral change in the promotions proce-
dure applicable to Department of Labor unit employees, we will also direct
that the promotions procedure of the DOL agreement be reinstated, retroac-
tively to April, 1988, when it was abrogated by the Employer, and that said
procedure continue in effect until such time as a superseding practice is
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established by the parties through the collective bargaining process.
Finally, we will establish a mechanism through which the unit employees who
have been adversely affected by the Employer's unlawful action may be made
whole. Auburn Firefighters Association, supra, slip op. at 12; Ritchie v.
Town of Hampden, MLRB No. 83-15, 6 NPER 20-14O32, slip op. at 9 (July 18,
1983), aff'd sub nom. Town of Hampden v. Maine Labor Relations Board, Nos.
CV-83-353 and CV-82-407 (Me. Super. Ct., Pen. Cty., Sept. 14, 1984).
In reaching our decision in this case, we are aware that the DOL
agreement was a stop-gap measure, reached under exigent circumstances, that
was never intended to be a permanent arrangement. Our holding merely
represents the adjudication of the parties' respective statutory rights,
during the term of their last three collective bargaining agreements, in
connection with the promotions procedures contained in the DOL agreement.
Our conclusion should not be interpreted as an affirmation of the substance
of the DOL agreement. As circumstances that warranted the DOL agreement
fade, we believe that said agreement creates more problems than it solves.
Although the parties' 1987-89 collective bargaining agreements contain
comprehensive Conclusion of Negotiations Articles, through which the par-
ties effectively waive the right " . . . to compel negotiations during the
term of this Agreement . . . ," State of Maine v. Maine State Employees
Association, 499 A.2d 1228, 1232-33 (Me. 1985), said zipper clauses do not
preclude the exercise of midterm bargaining rights expressly reserved in
the substantive provisions of the bargaining agreements. For example, the
agreements' Hours and Work Schedules Articles and Unit Work Articles
respectively permit the Employer to change the unit employees' work hours
and schedules and to contract out unit work; however, each article
expressly preserves the Union's right to demand negotiations over the
impact of the Employer's actions on the employees affected thereby.
In our view, paragraph 10 of the DOL agreement is analogous to the above
reservation of mid-term impact bargaining rights. Paragraph 10 states:
It is the intent of the parties that the two organizational
units established hereby will eventually be merged upon terms
and conditions to be negotiated at that time by the parties.
Through this language, each party has reserved the right, after the passage
of a reasonable period of time, to initiate negotiations over a more per-
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manent arrangement to supplant that contained in the DOL agreement. At the
present time, more than five years after this temporary arrangement was
established, either party may, through service of a ten-day notice upon the
other party, pursuant to 979-D(1)(B), compel such successor agreement
negotiations.
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. 979-H(3) (1988), it is hereby
ORDERED:
That the Respondent, State of Maine, and its representatives and
agents:
1. Cease and desist from failing to negotiate in good faith
with the Maine State Employees Association as required by
26 M.R.S.A. 979-C(1)(E), by making unlawful unilateral
changes in the wages and working conditions of bargaining
unit employees through the refusal to continue honoring
the terms of the DOL agreement, until said agreement is
modified by the parties through the collective bargaining
process.
2. Cease and desist from interfering with, restraining or
coercing the unit employees affected by the DOL agreement
in the exercise of their rights guaranteed by 26 M.R.S.A.
979-B, by making unlawful unilateral changes in said
employees' wages and working conditions.
3. Upon receipt of this order, reinstitute the terms of the
DOL agreement, retroactive to April, 1988, when the
Employer unilaterally repudiated said agreement, and
continue to honor said terms until the DOL agreement is
modified by the parties through the collective bargaining
process.
4. Within fifteen (15) days of the date of this order, notify
the Executive Director of the Maine Labor Relations Board
in writing of the steps taken in compliance with this order.
Twenty days after the date upon which this order becomes final,
if the parties are unable to agree on the identity of the
employees to be made whole pursuant to paragraph 3 above, the
Maine State Employees Association shall file with the Executive
Director and serve on the State of Maine the following items:
1. The names of all unit employees adversely affected by the
Employer's unilateral repudiation of the DOL agreement.
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2. An itemization for each such employee that includes:
a. How such employee was adversely affected;
b. A weekly list of gross back pay claimed;
c. A weekly list of gross earnings during the back
pay period;
d. Interest claimed; and
e. Documents and/or affidavits supporting each item.
The State of Maine will have fifteen days from the date of such
filing to respond with documents and/or affidavits bearing on
each disputed item. The Board will thereafter issue a supple-
mental order or conduct such further proceedings as are
necessary to effectuate this order.
Dated at Augusta, Maine, this 5th day of September, 1989.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
The parties are advised of Jessie B. Gunther
their right pursuant to 26 Alternate Chair
M.R.S.A. 979-H(7) (1988)
to seek review of this
decision and order by the
Superior Court by filing a /s/_____________________________
complaint in accordance with Carroll R. McGary
Rule 80B of the Rules of Alternate Employer Representative
Civil Procedure within 15
days of the date of this
decision.
/s/_____________________________
George W. Lambertson
Employee Representative
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