STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 90-12 Issued: August 21, 1990 _____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) Local 1989, SEIU, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) SCHOOL COMMITTEE OF THE CITY OF ) LEWISTON, ) Respondent. ) _____________________________________) The questions presented in this prohibited practice case are whether the School Committee of the City of Lewiston (hereinafter referred to as "Employer") violated 26 M.R.S.A. 964(1)(A), (B) and (E) by: (1) uni- laterally abrogating the reclassification procedure established by the par- ties' expired collective bargaining agreement; (2) unilaterally changing the classifications of several employees in the bargaining unit represented by the Maine State Employees Association ("Union"); (3) refusing to nego- tiate over the Union's individual reclassification proposals; (4) under- mining the Union's representative status; and (5) discriminating against a bargaining unit employee because of the employee's Union activities. We hold that some of the Employer's conduct violated the Municipal Public Employees Labor Relations Law ("Act"), 26 M.R.S.A. Ch. 9-A (1988) and (Supp. 1989). We will, therefore, fashion appropriate remedies to redress such violations and to effectuate the policies of the Act. The prohibited practice complaint was filed by the Union, on January 18, 1990, pursuant to 968(5)(B) of the Act. The Employer filed its answer on February 8, 1990, denying that its actions transgressed any provision of the Act and moving to dismiss the Union's complaint. The parties filed appropriate memoranda of law on the deferral question raised by the Employer's motion to dismiss and presented argument thereon at the eviden- tiary hearing on the merits. A prehearing conference on the case was held on February 21, 1990, Alternate Chair Jessie B. Gunther presiding. On February 23, 1990, Alternate Chair Gunther issued a Report of Prehearing Conference, the con- tents of which are incorporated herein by reference. On April 5, 1990, the Union filed its amended prohibited practice complaint. A hearing on the merits of the case was conducted by the Maine Labor Relations Board ("Board"), Alternate Chair Jessie B. Gunther pre- siding, with Employer Representative Thacher E. Turner and Employee Representative George W. Lambertson, on March 30, 1990. The Complainant was represented by Timothy L. Belcher, Esq., and the Respondent was repre- sented by Shari B. Broder, 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 14, 1990, which were considered by the Board in reaching its decision. The Board met to deliberate on the case on June 15, 1990. JURISDICTION The Complainant Maine State Employees Association is the certified bargaining agent, within the definition of 26 M.R.S.A. 962(2), for the Lewiston General Government Employees bargaining unit. The Respondent School Committee of the City of Lewiston is the public employer, within the definition of 26 M.R.S.A. 962(7), of the Lewiston School Department employees whose classifications are included in the above-named bargaining unit. 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. 968(5)(C). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. The Maine State Employees Association is the certified bargaining agent, within the definition of 26 M.R.S.A. 962(2), for the Lewiston General Government Employees bargaining unit. -2- 2. The School Committee of the City of Lewiston is the public employer, within the definition of 26 M.R.S.A. 962(7), of the Lewiston School Department employees whose classifications are included in the bargaining unit mentioned in the preceding paragraph. 3. The bargaining unit mentioned in paragraph one hereof is comprised of employees of two separate employers--the City of Lewiston and the School Committee of the City of Lewiston (referred to together as "Employers"). A series of collective bargaining agreements for this unit has been jointly negotiated and executed by the two employers as separate entities. 4. Article 7, Section 2 of the parties' 1986-89 collective bargaining agreement stated: Either employer may from time to time review the list of job classifications and job descriptions for its employees covered by this agreement and may, after consultation with the union, revise the same in a fair and equitable manner. Should either employer reclassify, reallocate, upgrade or downgrade any employee or group of employees in a manner which is either unfair or not equitable or significantly change his, her or their job descriptions in a manner that is either unfair or not equitable, then and only then may the Union or an employee grieve the action. Notwithstanding the provisions of Article 14, Section 1 or any other provision of this agreement, neither the Union nor any employee shall have the right to grieve the failure or refusal of either employer to reclassify, reallocate or upgrade any employee or job classification in effect on the date of this agreement. 5. The procedure that had developed pursuant to the provision cited in the preceding paragraph was for employees, seeking to have their posi- tions reclassified, to individually submit a request therefor to their building principal or other supervisor, who in turn would give their recommendation thereon to the Superintendent of Schools. The Superintendent would evaluate such recommendations, by reviewing the employees' job descriptions in light of their actual duties and by discussing the recommendations with the administrators making them, and would then make his recommendations for reclassification to the School Committee, which had final authority thereon. 6. Traditionally, the City and the School Department process reclass- -3- ification requests as part of their budget process for the ensuing year. 7. The process described in paragraph 5 hereof had been followed on two previous occasions: in February, 1983, when the School Committee voted to reclassify one employee from the position of Principal Clerk (allocated to range G-10 on the salary scale) to that of Administrative Secretary (range M-2) and in August, 1986, when the School Committee voted: (a) To reclassify the Nutrition Program Director to range M-16, step E, (b) To reclassify the Administrative Secretary in the Nutrition Program to range M-9, step B, (c) To reclassify the Business Manager to range M-16, step D, and (d) To reclassify an individual to the position of Personnel Assistant, class grade level 13, step C. While all the actions of August, 1986, were referred to as "reclassifica- tions," the School Committee minutes suggest that the first three were in fact "pay adjustments" or step increases and not actual reclassifications. 8. Only one of the personnel items mentioned in the preceding para- graph--that of February, 1983--clearly involved a bargaining unit employee. 9. During January, 1989, and consistent with procedure outlined in paragraph 5 hereof, various school administrators recommended to the Super- intendent that 21 school department employees be reclassified, including the three school department employee reclassifications proposed by the Union, as described in paragraph 12 below. 10. By its terms the parties' 1986-89 collective bargaining agreement remained in effect through June 30, 1989. Article 19 of the agreement further stated: It shall be automatically renewed from year to year thereafter unless both Employers notify the Union or the Union notifies both Employers in writing at least one hundred twenty (120) days prior to the expiration date that it/they desire(s) to modify this Agreement. In the event that notification is given, the rates of pay actually being paid during the last pay period of June, 1989 shall continue to be paid during the period of nego- tiations. Likewise, those non-wage benefits shall continue in effect at the same level as the last pay period of June, 1989. However, the retroactivity of any increased costs in continuing benefits into the successor agreement shall be subject to nego- tiations. -4- 11. Due notice pursuant to the above provision was given by the Union and the parties' initial bargaining session for the successor agreement was held on April 18, 1989. 12. Among the preliminary proposals delivered by the Union to the Employers on April 18th was the following: RECLASSIFICATIONS Reclassify the positions currently held by the following employees to the proper classifications as indicated: Employee Current Class Proper Class Lucille Violette Principal Clerk Administrative Assistant Fernand Roberge Security Guard Janitor, Security (G-7) Connie Levesque Account Clerk Senior Principal Clerk Shirley Beaudoin Principal Clerk Senior Principal Clerk Reallocate the following classifications to the proper pay grades as indicated: Classification Current Pay Grade Proper Pay Grade Police Dispatcher G-10 G-13 Caseworker G-14 G-16 Clerk Typist G-7 G-9 PBX Operator - Account Clerk G-8 G-10 Operational Clerk G-8 G-10 Senior Account Clerk G-9 G-11 Principal Clerk G-10 G-12 Senior Principal Clerk G-12 G-14 -5- Maintenance Person G-7 G-10 Parking Attendant G-7 G-9 Senior Parking Attendant G-9 G-11 Account Clerk G-8 G-11 Add a new Article titled Reclassification Procedure to read: An employee may apply to his/her respective employer for a reclassification based on work performed which signifi- cantly differs from the job description for his/her classi- fication. Such application shall be made in writing to the Superintendent of Schools in the case of School Committee employees or to the Director of Personnel in the case of City employees. The reclassification application shall include a description of the work performed which justifies the reclassification. Upon receiving an applicaiton for reclassification, the respective public employer shall review the application and make such inquiries as are necessary. The Superintendent of Schools or Director of Personnel, as the case may be, shall issue a determination as to the proper classification for the position in question to the applicant within forty-five (45) days of receipt of the application. The Union may appeal the reclassification determination through the grievance procedure beginning at Step III within fifteen (15) days of receipt of the determination or within fifteen (15) days of the forty-five (45) day deadline if no determination is received. Adjustments of pay and benefits resulting from a reclassi- fication shall be effective as of the date of the reclassi- fication application. For the purposes of this Article, a reclassification is the reassignment of a position to an occupational classifica- tion which is appropriate for compensation and employment purposes. Delete Article 7, Section 2 and renumber subsequent sections. 13. At the April 18th negotiating session, the Union's chief nego- tiator briefly reviewed each of the Union's proposals to assure himself that the Employers' negotiators understood what was being proposed and the implications thereof. -6- 14. The parties' second bargaining session was held on April 28, 1989. At that meeting, the Union delivered the final draft of its proposals to the Employers' team. The only amendments in the relevant portion of the Union's proposals, from that presented on April 18, were: (1) the "Police Dispatcher" position in the list of proposed reallocations was amended to read "Dispatcher" and (2) an additional classification was proposed for reallocation; i.e., Storekeeper, from range G-8 to range G-11. 15. At the April 28th negotiating session, the Union's chief nego- tiator reviewed each of the Union's proposals and provided some justifica- tion for each of them. 16. At the meeting noted in the preceding paragraph or at another of the parties' bargaining sessions, the Employers' chief negotiator stated that the Employers were more interested in some of the Union's individual reclassification proposals than they were in others. 17. The parties' third bargaining session was conducted on May 16, 1989. At that time, the Employers' chief negotiator provided the Employers' comprehensive initial response to the Union's proposals. The relevant portion of the Employers' response to the Union's proposal concerning the reclassification procedure was as follows: Article 7 WAGES Section 2. -- NO TO UNION PROPOSAL TO ADD A RECLASSIFICATION PROCEDURE ARTICLE -- CURRENT CONTRACT. Neither the Union's individual reclassification proposals nor its realloca- tion proposals were addressed in the Employers' response. 18. The parties had additional negotiating sessions on June 14, 23 and 30, 1989. During the course of negotiations, tne Employer team negotiated over and reached agreement over the individual reclassification of two City employees--the one proposed by the Union and one proposed by the City. 19. On either June 23rd of 30th, the Union had heard from other sources that the School Department was considering a large number of reclassifications that it had not heard of across the table and, therefore, -7- asked at the bargaining table whether the Employer team would be responding to the individual reclassifications proposed by the Union and whether the School Department would be proposing additional reclassifications beyond those proposed by the Union. 20. In response to the inquiry noted in the preceding paragraph, the Superintendent indicated that some reclassifications were "in the works" but that the budget process had not yet been completed. The Union's chief negotiator then asked when the School Department would inform the Union of the reclassifications being contemplated by the Department. The Superin- tendent responded that the information would be available within the next two months. 21. On June 30, 1989, the Union filed a request for mediation with the Board. 22. During the second mediation session, on July 21, 1989, the Super- intendent placed an envelope, with the name of the Union's chief negotiator written on it, on a table and then stayed in the room to make sure that the Union chief negotiator received the envelope. 23. After the Union chief negotiator took possession of the envelope mentioned in the preceding paragraph, the Superintendent left the room. The Union chief negotiator opened the envelope, read the letter contained therein and shared its contents with the other Union team members present. 24. The letter noted in the preceding paragraph was typed on School Department stationery and stated: MEMO TO: MSEA FROM: Robert V. Connors, Superintendent of Schools RE: Recassifications (sic) At its meeting of July 17, 1989 the School Committee took action reclassifying the following personnel, all of which will be retroac- tive to July 1, 1989. From To 1. Lucille Violette Principal Clerk Administrative Secretary G-10-VI SM-3-B -8- 2. Carole Springer Principal Clerk Administrative Secretary G-10-V SM-3-A 3. Debbie Gunn Principal Clerk Administrative Secretary G-10-VI SM-3-A 4. Doris Martineau Principal Clerk Administrative Secretary G-10-VI SM-3-A 5. Constance Marley Principal Clerk Administrative Secretary G-10-VI SM-3-A 6. Shirley Beaudoin Principal Clerk Senior Principal Clerk G-10-VI G-12-VI 7. Claire Duplissis Principal Clerk Senior Principal Clerk G-10-VI G-12-VI 8. Diane Field Principal Clerk Senior Principal Clerk G-10-VI G-12-VI 9. Rita Lafontaine Principal Clerk Senior Principal Clerk G-10-VII G-12-VII 10. Irene Nadeau Principal Clerk Senior Principal Clerk G-10-VII G-12-VII 11. Pauline Valliere Principal Clerk Senior Principal Clerk G-10-VI G-12-VI 12. Nancy Wilson Principal Clerk Senior Principal Clerk G-10-VII G-12-VII 13. Jacqueline Lebrecque Account Clerk Principal Clerk G-8-V G-10-V 14. Barbara Schutt Account Clerk Principal Clerk G-8-VI G-10-VI 25. The letter quoted in the preceding paragraph was the first notice that the Union received from the School Department concerning the reclassi- fication decisions reported therein. The School Department did not consult with the Union prior to making the reclassification decisions. 26. The Employer did not negotiate with the Union at any time relevant hereto over the reclassifications proposed by the Union. 27. The reclassifications adopted by the School Committee, in effect, granted two of the three School Department employee reclassifications being -9- sought by the Union, including the reclassification of Union bargaining team member Lucille Violette to a position outside of the bargaining unit represented by the Union. 28. Throughout all of the parties' negotiations and mediation sessions, subsequent to April 28, 1989, which culminated in attaining a successor collective bargaining agreement in December, 1989, the parties negotiated over the new reclassification procedure proposed by the Union. 29. The negotiations mentioned in the preceding paragraph resulted in agreement to a compromise reclassification procedure provision under which each year the Union has the right to propose six individual employee reclassifications, three for City employees and three for School Department employees. Once the respective employers review the applications and make determinations thereon, the Union has the right to appeal any unfavorable decisions to a mediator/arbitrator for a binding decision. 30. Contemporaneously with their successor collective bargaining agreement, the parties reached a side agreement under which the Employers agreed to comprehensively review all of the job descriptions of the unit employees and, if necessary and after consultation with the Union, change any job descriptions that do not accurately reflect the actual job duties and responsibilities of each position. Such a review had not been under- taken for approximately ten years and was last performed when the unit was represented by a different bargaining agent. 31. Candidates for School Department positions in the bargaining unit are usually interviewed by an administrator, usually a building principal, who recommends to the Superintendent which individual should be hired to fill the open position. The Superintendent then reviews the recommendation and decides whether it should go forward to the School Committee which makes the final hiring decision. 32. Prior to being hired as an Account Clerk by the School Department in February, 1987, Connie Levesque had worked for the City of Lewiston for approximately 18 years. Ms. Levesque's last position with the City was working as an Account Clerk and switchboard operator in the City Controller's office. -10- 33. Following the procedure outlined in paragraph 31 hereof, Ms. Levesque was interviewed by Montello School Principal Tnomas Hood prior to being hired as an Account Clerk in February, 1987. During the course of the interview, Ms. Levesque raised her past union activities and resulting tensions with other city hall employees as one reason why she wished to transfer to the School Department. Ms. Levesque also expressed concern as to how Mr. Hood might view her union activities. In response, Mr. Hood stated that he had been a union memoer as a teacher, he was a union member as a principal, and he understood the role played by unions in the workplace and that did not bother him at all. 34. After interviewing all of the candidates, Mr. Hood recommended to the Superintendent that Ms. Levesque be hired to fill the Account Clerk position. The Superintendent then recommended that the School Committee hire Ms. Levesque and they took that action. 35. At the time that she was hired by the School Department, Ms. Levesque was the Union Local president. The Superintendent was aware of Ms. Levesque's Union activities at that time since both had been members of their respectcive bargaining teams, negotiating successive collective bargaining agreements, over a period of several years. 36. A few years prior to 1987, Ms. Levesque had applied for a position with the School Department and the Superintendent had recommended that she be employed. After being offered the position, Ms. Levesque "got cold feet" and declined to accept it. 37. On an occasion subsequent to that reported in the preceding para- graph but prior to 1987, Ms. Levesque applied for but was not offered a position with the School Department. Ms. Levesque conceded that the posi- tion was awarded to a better qualified applicant. 38. During the fall of 1987, an individual, who was working in a higher clerical classification in the same office as Ms. Levesque, ter- minated employment with the School Department. 39. Ms. Levesque applied for, but was not selected to fill, this higher classification position. 40. At the time that the higher-paying position was filled, Ms. Levesque, Mr. Hood and the newly-hired employee, Carole Springer, -11- discussed the possibility of equalizing the duties of Ms. Levesque's and Ms. Springer's positions. Wnile he stated that he was willing to discuss and investigate the possibility of doing so, Mr. Hood ultimately decided not to equalize the duties of the two positions. 41. Mr. Hood believes that, while Ms. Levesque and Ms. Springer per- form many of the same job functions, the latter discharges several addi- tional responsibilities, including: working independently to gather information for and to complete various forms required by the federal government or by the State Department of Educational and Cultural Services; compiling information and assisting with preparation of the school's annual budget proposal; typing confidential teacher evaluations, correspondence and reports; and, overall, working with less direct supervision and exer- cising somewhat greater responsibility than Ms. Levesque. 42. On January 9, 1989, Mr. Hood recommended to the Superintendent that Ms. Levesque be reclassified from the position of Account Clerk, range G-8, to Principal Clerk, range G-10, and that Ms. Springer be reclassified from Principal Clerk, range G-10, to Senior Principal Clerk, range G-12. 43. Following the procedure described in paragraph 5, Mr. Hood related to the Superintendent that Ms. Levesque's work duties encompassed those of G-7 and G-10 classifications and not so much those of the G-8 position which she held. On balance, Mr. Hood believed that Ms. Levesque should be reclassified to the G-10 position. 44. During January, 1989, the Superintendent received 21 recommenda- tions for reclassifications. Following the procedure outlined in paragraph 5, the Superintendent recommended that 18 reclassifications be granted by the School Committee, including five that removed the position affected from the bargaining unit. The School Committee adopted the Superintend- ent's recommendation, as noted in paragraph 24 above. 45. Ms. Levesque's position was one of the three that were not reclassified. The other two positions were located in the School Department business office. 46. In 1989, at the time of the reclassification decisions, Ms. Levesque was serving as Union Local vice-president, delegate and -12- bargaining team member. During 18 years of employment with the City of Lewiston, Ms. Levesque had served as Union shop steward and chief steward, in addition to serving as Union Local president. 47. Upon completion of City Council action on the School Department budget in June, 1989, $20,000 of municipal funds was available to fund reclassifications for School Department employees. The reclassifications approved by the School Committee as listed in paragraph 24 hereof involved a total increased expenditure of $19,901.24 in municipal funds. Had it been granted, Ms. Levesque's reclassification would have resulted in an additional expenditure of $1020 by the School Department. 48. Of the three employees whose recommended reclassifications were not approved, two had never been members of the Union. 49. There was no causal connection between Ms. Levesque's union activities and the Employer's failure to reclassify her position. DISCUSSION The Employer moved to dismiss the Union's complaint on the grounds that some of the issues presented are properly before an arbitrator pur- suant to the grievance procedure of the parties' collective bargaining agreement. For the reasons stated in Auburn Firefighters Association v. City of Auburn, No. 89-01, slip op. at 16, n. 5, 11 NPER ME-20003 (Me.L.R.B. Mar. 31, 1989), the Employer's motion is deemed to be one for pre-arbitral deferral. The parties filed appropriate memoranda of law on the deferral question and presented oral argument thereon at the eviden- tiary hearing. The Board's jurisdiction to hear and decide this case is undisputed, 26 M.R.S.A. 968(5)(A), Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154, 168 (Me. 1976); however, the Board has not been reluctant to defer to the contractual grievance resolution mechanism in appropriate cases. Maine State Employees Association v. State of Maine, No. 86-09, slip op. at 5-6, 9 NPER ME-17010 (Me.L.R.B. Apr. 23, 1986) (Interim Order). Since Teamsters Local Union No. 48 v. City of Bangor, No. 80-46, slip op. at 3, 3 NPER 20-12000 (Me.L.R.B. Oct. 6, 1980), we have -13- been guided in resolving pre-arbitral deferral questions by referring to the National Labor Relations Board's seminal case of Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). The Collyer Board held that pre-arbitral deferral was appropriate if the following were present: (1) the dispute arose within the context of a long and productive collective bargaining relationship, (2) there was no claim that the employer was displaying enmity towards the employees' exercise of their statutory rights, (3) the employer credibly asserted its willingness to resort to arbitration, and (4) the dispute centered on the collective bargaining agreement and its meaning. Id. at 842. In the instant case, the Employer urged deferral, while challenging before the arbitrator the latter's authority to rule on Employer's failure to reclassify Ms. Levesque and the related discrimination claim. The Board has declined to defer in such circumstances. Maine State Employees Association v. State of Maine, No. 79-43, slip op. at 2, 2 NPER 20-11002 (Me.L.R.B. Dec. 6. 1979); Coulombe v. City of South Portland, No. 86-11, slip op. at 29, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986) (Alternate Employer Representative McGill dissenting). Furthermore, the question of whether the Employer unlawfully refused to negotiate over the Union's indi- vidual reclassification proposals is not before the arbitrator and the Board was, therefore, required to hear a good deal of the evidence relating to all of the Union's charges of violation of 964(1)(E) and (A) of the Act. The interest of administrative economy was served by the Board's going forward and deciding the entire matter. In the circumstances, the Employer's motion for pre-arbitral deferral was denied. The Union alleges that the Employer violated the duty to negotiate in good faith by: (1) not following the reclassification procedure established by the parties' expired collective bargaining agreement, (2) unilaterally implementing its own reclassifications, (3) refusing to nego- tiate over the individual reclassifications proposed by the Union, and (4) deliberately seeking to undermine the Union's representative status. Since all of these charges stem from the same course of conduct on the part of the Employer and since they are analytically closely related, they will all be discussed together. -14- The statutory duty to negotiate in good faith over wages, hours, working conditions and contractual grievance arbitration continues throughout the collective bargaining relationship between the public employer and the bargaining agent, Coulombe, supra, slip op. at 10, unless the parties have agreed otherwise in a prior written agreement. State of Maine v. Maine State Employees Association, 499 A.2d 1228, 1230 (Me. 1985). We have long held that changes in the mandatory subjects of bargaining uni- laterally implemented by the public employer contravene the statutory duty to bargain and violate 964(1)(E) of the Act. The rationale behind and the elements of this unilateral change rule 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 prac- tice, and (3) involve one or more of the mandatory subjects of bargaining. Banqor 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 represen- tative 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). Maine State Employees Association v. State of Maine, No. 89-06, slip op. at 9, 12 NPER ME-21002 (Me.L.R.B. Sept. 5, 1989), citing Kittery Employees Association v. Strahl, No. 86-23, slip op. at 9, 9 NPER ME-18010 (Jan. 27, 1987). The unilateral change rule applies in situations like that now before us where the parties' collective bargaining agreement has expired and a successor agreement has not been agreed to. We have discussed the application of the unilateral change rule in such cir- cumstances as follows: -15- During the interval between the expiration of a collective bargaining agreement and the execution of a successor agreement, the "static status quo" must be maintained. Upon the expiration of a collective bargaining agreement, the wages, hours, working conditions, and contract grievance procedure established in the expired agreement must remain in effect until they are superseded by the successor agreement. Teamsters Local Union No. 48 v. Boothbay/Boothbay Harbor Community School District, No. 86-02, slip op. at 11, 9 NPER ME-17009 (Me.L.R.B. Mar. 18, 1986), citing Sanford Fire Fighters Association v. Sanford Fire Commission, No. 79-62, slip op. at 10 (Me.L.R.B. Dec. 5, 1979); Easton Teachers Associ- ation v. Easton School Committee, No. 79-14, slip op. at 5, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979). The Union's first two charges were presented as alternative posti- tions. Since we continue to adhere to the view expressed in Boothbay/ Boothbay Harbor quoted above, we need only address the Union's first charge. All three elements necessary to constitute an unlawful unilateral change were established in the record in connection therewith. First, there is no question that the Employer reclassified 14 unit employees, without having given advance notice of such action to the Union. The relevant facts are reported in paragraphs 9, 17, 19, 20, 22, 23, 24, 25 and 26 of our findings of fact. The Union was thus presented with a fait accompli in connection with the reclassifications that were initiated and executed by the Employer. Second the Employer's action was a departure from the established practice between the parties concerning reclassifications memorialized in Article 7, Section 2 of their expired collective bargaining agreement. The relevant provision, quoted in paragraph 4 of our findings of fact, authorizes the Employer to reclassify any single unit employee or group of employees, "after consultation with the union" and so long as such reclassifications are done in a "fair and equitable manner." While relieving the Employer of the obligation to negotiate with the Union prior to reclassifying any bargaining unit employee, this provision does require the Employer to consult with the Union prior to taking such action. Interpreting similar contractual language in Orono Fire Fighters Asso- ciation v. Town of Orono, No. 89-18, 12 NPER ME-21001 (Me.L.R.B. Sept. 1, -16- 1989), we noted that, while "consult" does not mean "negotiate," neither does it mean "ignore." Id., slip op. at 19. As was the case in Orono, neither the parties' agreement nor the record provided any indication of the parties' intent in the use of the word "consult." The Board defined the word "consult" in Orono as follows: In this jurisdiction, the only precedent available to us in the realm of labor law is that related to the definition of "meet and consult" in the context of educational policy. See 26 M.R.S.A. 965(1)(C) (1988). In that connection, the Board has set forth four elements necessary to carry out the obligation to meet and consult, from which the parameters of a reasonable definition of "consult" for our present purposes can be gleaned: 1. Notice that a change in educational policy is planned must be given to the bargaining agent, so that it can timely invoke the meet and consult pro- cess if employees wish to comment on the changes; 2. Pertinent information about the planned change must be provided so that the bargaining agent and employees can understand the change and make constructive comments about it. 3. Actual meeting and consulting at reasonable times and places about the planned change must occur upon receipt of a ten day notice or other request to meet and consult by the bargaining agent. A school committee is obligated to come to meet and consult sessions with an open mind, to discuss the planned change openly and honestly, and to listen to the employees' suggestions and concerns. 4. Mature consideration must be given to the employees' input before the change is implemented, and if any of the employees' comments or concerns are meritorious, the school committee must decide in good faith whether tney can be accommodated. Once a school committe has satisfield these elements of the duty to meet and consult, it is free to implement or change the educational policy matter. Southern Aroostook Teachers Assoc. v. Southern Aroostook Community School Comm., Nos. 80-35 and 80-40, slip op. at 15-16, 5 NPER 20-13021 (Me.L.R.B. Apr. 14, 1982). Id. We hold that, at a minimum, the duty to consult with the Union prior to making reclassification decisions required that the Employer notify the -17- Union of the proposed changes, thereby providing the latter with a reason- able opportunity to request consultation within the parameters outlined above. No such notice was afforded to the Union in this case. The Employer attempted to establish, through evidence concerning past reclassification decisions, that the Union had waived its right to con- sultation. The relevant facts are reported in paragraphs 7 and 8 of our findings of fact. The Union's failure to exercise the option of demanding consultation in the one instance involving the reclassification of a single unit employee does not constitute a clear and unmistakable waiver of the Union's right to object to subsequent unilateral changes in the mandatory subjects of bargaining. Maine Teachers Association/National Education Association v. State Board of Education, No. 86-14, slip op. at 12, 9 NPER ME-18005 (Me.L.R.B. Nov. 18, 1986). Third, the Employer's action involved a mandatory subject of bargaining--the wages of the unit employees affected by the reclassifcation decisions. The job classification to which a particular position is assigned determines the wages paid to the incumbent employee in that postion and changes in an employee's classification results in a change in the wages paid to that employee. Because of their inherent relationship with wages, individual job classification decisions are mandatory subjects of bargaining. State Board of Education, supra, slip op. at 9. Since all three elements of an unlawful unilateral change were established in the record, we conclude that, by implementing its own reclassifications without first consulting with the Union thereon, the Employer transgressed 965(1)(C) of the Act and violated 26 M.R.S.A. 964(1)(E). The Union's third charge, involving an alleged violation of the duty to negotiate in good faith, is the averment that the Employer refused to bargain over the Union's reclassification proposals. It is axiomatic that a refusal to negotiate, upon request, over the mandatory subjects of bargaining, during negotiations for a successor collective bargaining agreement, constitutes a violation of 965(1)(C) of the Act. Lewiston Teachers Association v. Lewiston School Committee, No. 86-04, slip op. at 9, 9 NPER ME-17011 (Me.L.R.B. June 30, 1986). As noted above, proposals con- cerning the reclassification of bargaining unit employees are mandatorily -18- negotiable. The Employer argues, at pages 14 and 15 of its brief, that it did not violate the duty to negotiate in good faith because, under our totality of the circumstances test, the Employer participated in the collective bargaining process in good faith. The totality of the circumstances test is applied to charges relating to a party's course of conduct during nego- tiations such as an averment of surface bargaining, Auburn Firefighters Association v. Valente, No. 87-19, slip op. at 10-12, 10 NPER ME-18017 (Me.L.R.B. Sept. 11, 1987); M.S.A.D. No. 22 Board of Directors v. Tri-22 Teachers Association, No. 82-33, slip op. at 5-7, 5 NPER 20-14003 (Me.L.R.B. Oct. 5, 1982), and does not apply to situations where a party simply refuses to negotiate over a mandatory subject. Such a refusal is a per se violation of 965(1)(C). Council 74, AFSCME, AFL-CIO v. Ellsworth School Committee, No. 81-41, slip op. at 11, 4 NPER 20-12030 (Me.L.R.B. July 23, 1981). In the instant case, the Union presented its individual reclassifica- tion proposals at the first two bargaining sessions and provided justifica- tions therefor at the second session. The Employers' chief negotiator indicated that the Employers were more interested in some of the reclassi- fications than in others and, at a later session, the City of Lewiston negotiated and reached agreement on the single municipal employee reclassi- fication proposed by the Union. The Superintendent testified that the Employer requested that the Union provide justifications for its individual reclassification proposals and that, becoming incensed at the request, the Union's chief negotiator failed to comply therewith. The Union chief nego- tiator testified that no such request was made, but that he had expressed indignation over the Employer's reaction to the Union's proffered justifi- cation for its reallocation proposals. We credit the Union negotiator's testimony in this regard because the Union was the party seeking to nego- tiate over the individual reclassification proposals and it had previously provided justifications therefore earlier in the negotiations. The failure to at least reiterate such justifications would have been totally incon- sistent with the Union's position on the issue. The Employer did not, at any time relevant hereto, negotiate over the Union's proposals to reclassify three School Department employees and its failure to do so, on -19- request, violated 26 M.R.S.A. 964(1)(E). The Union's fourth allegation is that, through its violation of the duty to negotiate in good faith, the Employer undermined the Union's repre- sentative status in violation of 964(1)(A) of the Act. We have long held that a public employer violates 964(1)(A) if it engages in conduct "which, it may reasonably be said, tends to interfere with the free exer- cise of employee rights under the Act." Maine State Employees Association v. State Development Office, No. 84-21, slip op. at 8-9, 7 NPER 20-15017 (Me.L.R.B. July 6. 1984), aff'd. 499 A.2d 165, 169 (Me. 1985). Unlawful unilateral changes and outright refusals by public employers to bargain over the mandatory subjects not only violate the statutory duty to nego- tiate in good faith but also inherently tend to interfere with the employees' exercise of the bargaining rights guaranteed by the Act. Orono Firefighters Association, supra, slip op. at 20; Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 810 (Me. 1982); Auburn Firefighters Association v. Valente, supra, slip op. at 12. Another inherent effect of such employer conduct is to demean the exclusive representative status of the bargaining agent. We conclude, therefore, that the Employer's viola- tions of the duty to negotiate in good faith also violated 964(1)(A) of the Act. The Union's final contention is that the Employer violated 964(1)(B) of the Act and, derivatively, 964(1)(A) by discriminating against employee Connie Levesque "in retaliation for her union activities by failing to reclassify her when they reclassified other employees who performed similar or identical work." This is a dual motive case in that the Union alleges that the Employer's action was motivated by anti-union animus while the Employer avers that its conduct was justified by legitimate reasons. Since its adoption in Holmes v. Town of Old Orchard Beach, No. 82-14, 5 NPER 20-13029 (Me.L.R.B. Sept. 27, 1982), aff'd. sub nom. Town of Old Orchard Beach v. Old Orchard Police Patrolman's Association, No. CV-82-613 (Me. Super. Ct., York Cty., Oct. 27, 1983), The Board has uniformly applied the National Labor Relations Board's Wright Line test in such dual motive cases. The Supreme Court of the United States has approved the National Board's use of the Wright Line test in dual motive cases. Mr. Justice -20- White, writing for a unanimous Court, outlined the test as follows: The Board held that the [complainant], of course, had the burden of proving that the employee's conduct protected by [Section 963] was a substantial or a motivating factor in the discharge. Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of [Sections 964(1)(A) and (1)(B)] by proving by a preponderance of the evi- dence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event. It thus became clear, if it was not clear before, that proof that the discharge would have occurred in any event and for valid reasons amounted to an affirmative defense on which the employer carried the burden of proof by a preponderance of the evidence. NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103 S.Ct., 2469, 2473, 76 L.Ed. 2d 667 (1983) [sections of Act substituted for parallel sections of National Labor Relations Act], cited with approval, Maine State Employees Association v. State Development Office, 499 A.2d 165, 168-69 (Me. 1985). The crux of the Union's discrimination charge is the averment that, while Ms. Levesque and another employee in her office, Ms. Springer, per- form the same work, the latter was reclassified and the former was not. Had it been correct in this assertion and given Ms. Levesque's history of heavy involvement in Union activities and the Superintendent's knowledge thereof, the Union might well have prevailed under the first tine of the Wright Line test. Ms. Levesque sincerely believes that she and Ms. Springer perform the same job duties; however, that view is not shared by Principal Hood, the administrator who supervises both positions. Remarks made by Mr. Hood, shortly after Ms. Levesque was not selected to fill the higher-paying Principal Clerk position and which were probably intended to assuage Ms. Levesque's feelings at not having been selected, probably contributed to the misunderstanding. At that time, Mr. Hood stated that he would explore equalizing Ms. Levesque's and the Principal Clerk's duties. Ms. Levesque's belief was also fueled by the fact that, at the behest of the Assistant Principals and without Mr. Hood's knowledge, Ms. Levesque does perform a few of the tasks that the Principal believes to be exclu- sively within Ms. Springer's province. Mr. Hood never made the decision to equalize the responsibilities of the two positions and his view that the incumbents in the two classifica- -21- tions were performing different work is reflected in his recommendations that Ms. Levesque be reclassified from a range G-8 to a range G-10 position and that Ms. Springer go from a range G-10 to a range G-12 position. Pursuant to the Employer's internal administrative procedure for processing reclassifications, Mr. Hood discussed his perceptions of Ms. Levesque's job duties with the Superintendent, stating that her responsibilities included those of a range G-7 classification and those of a G-10 position more than those of her current range 6-8 classification. On balance, Mr. Hood felt that Ms. Levesque should be reclassified to the range G-10 position. There was no suggestion that Mr. Hood, who is a union member, harbors any anti- union animus and we found him to be a credible and forthright witness. The record established that, after final City Council action on the School Department budget, $20,000 of municipal funds was available to the Employer to fund reclassifcation requests. The sum required to fund all of the proposed reclassifications was $29,907; therefore, they could not all be granted. The Superintendent evaluated Mr. Hood's recommendations con- cerning Ms. Levesque's and Ms. Springer's reclassifications together with those of other administrators concerning other proposed reclassifications and in light of his own knowledge of the School Department in making the final reclassification recommendation to the School Committee. Tne reclassifications actually implemented resulted in an increased annual expenditure of $19,901.24 of municipal funds in the School Department budget. In dual motive cases, the Board is seldom presented with an admission of unlawful animus; therefore, the presence of such illicit motivation directed against the employee(s) involved must be inferred from the disparity in the employer's treatment of similarly situated union and non- union employees. Teamsters Local Union No. 48 v. Town of Winthrop, No. 84-06, slip op. at 5-7, 7 NPER 20-16006 (Me.L.R.B. Nov. 16, 1984), aff'd sub nom. Inhabitants of the Town of Winthrop v. Maine Labor Relations Board, Nos. CV-84-528 & -538 (Me.Super.Ct., Ken.Cty., July 11, 1985). Having full knowledge of her Union activities, the Superintendent offered Ms. Levesque employment on one occasion and later recommended and, in effect, hired Ms. Levesque into her present position. Second, one of the -22- individuals whose position was reclassified was, like Ms. Levesque, a member of the Union bargaining team. Third, of the three employees whose reclassifications were not approved, two had never been members of the Union. On the basis of the record, the Board finds that there was no causal connection between Ms. Levesque's Union activities and the Employer's failure to reclassify her position. The Union's charge that the failure to reclassify Ms. Levesque's position violated 26 M.R.S.A. 964(1)(B) and (A) will, therefore, be dismissed. Maine State Employees Association v. State Development Office, supra, 499 A.2d at 169 n.10. Having concluded that the Employer's actions violated 26 M.R.S.A. 964(1)(E) and (A), we will provide appropriate remedies to effectuate the policies ofthe Act. 26 M.R.S.A. 968(5)(C). 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); Coulombe, supra, slip op. at 25. While we would normally order reinstatement of the status quo ante in tne case of an unlawful unilateral change, we will not do so in this case because the employees who were reclassified were apparently the innocent beneficiaries of the unlawful conduct, Lake Teachers Association v. Mount Vernon School Committee, No. 78-15, slip op. at 3 (Me.L.R.B. May 3, 1978), and such a result would damage the Union's status in the eyes of the employees affected, the majority of whom are bargaining unit members. As remedies for the viola- tions established, we will order the Employer to cease and desist from: (1) making unlawful unilateral changes in the classification of individual bargaining unit employees, (2) failing and refusing to negotiate upon demand with the bargaining agent over the mandatory subjects of bargaining, unless the parties have agreed otherwise in a prior written contract and, specifically, to cease and desist from failing and refusing to negotiate over the reclassifcation of employee Connie Levesque, and (3) interfering with, restraining or coercing bargaining unit employees in the free exer- cise of the rights guaranteed by the Act through violations of the duty to negotiate in good faith. We will also order the Employer to take the following actions: (1) to reinstate the status quo concerning bargaining unit employee job classifications as of the date of the filing of the -23- Union's prohibited practice complaint, January 18, 1990, except for any changes therein made pursuant to Article 7, Sections 2 and 5, of the par- ties' 1989-91 collective bargaining agreement or those made pursuant to the job description review process contained in the parties' Memorandum of Understanding dated December 7, 1989; (2) during the term of tne 1989-91 collective bargaining agreement, to make reclassification decisions only in the manner provided in the aforementioned agreements; (3) within ten days of receipt of a demand therefor from the Union, to meet and negotiate over the proposal that employee Connie Levesque be reclassified from Account Clerk to Senior Principal Clerk, unless said employee has already been reclassified pursuant to the agreements mentioned in number one hereof; (4) to sign, date, post and keep posted for 30 consecutive days, beginning on the first day of the 1990-91 school year, at such places as notices are normally posted for the attention of the School Department employees in the Lewiston General Government Employees bargaining unit, a copy of the attached "Notice"; (5) to take such reason-able steps as may be necessary to assure that said posted noti- ces are not altered, defaced or covered by any other material; and (6) within 20 days of the date of this order and again once the aforemen- tioned notices have been posted, to notify the Executive Director of the steps that have been taken to comply with our order. We have not ordered the Employer to negotiate over the two other individual reclassifications of School Department employees proposed by the Union because they were, in effect, granted by the Employer. 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. 968(5), it is hereby ORDERED: I. That the Respondent, School Committee of the City of Lewiston, and its representatives and agents shall cease and desist from: A. Making unlawful unilateral changes in the classifi- cation of individual bargaining unit employees; B. Failing and refusing to negotiate upon demand with the Maine State Employees Association over the man- -24- datory subjects of bargaining, unless the parties have agreed otherwise in a prior written contract and, specifically, to cease and desist from failing and refusing to negotiate with the bargaining agent over the reclassification of employee Connie Levesque; and C. Otherwise interfering with, restraining or coercing bargaining unit employees in the free exercise of the rights guaranteed by the Municipal Public Employees Labor Relations Law through violations of the duty to negotiate in good faith. II. That the Respondent, School Committee of the City of Lewiston, and its representatives and agents shall: A. Reinstate the status quo concerning bargaining unit employee job classifications as of January 18, 1990, except for any changes therein made pursuant to Article 7, Sections 2 and 5, or the parties' 1989-91 collective bargaining agreement or those made pursuant to the job description review process contained in the parties' Memorandum of Under- standing dated December 7, 1989; B. During the term of the 1989-91 collective bargaining agreement or as otherwise agreed by the parties, make reclassification decisions only in the manner provided in the agreements mentioned in the preceding directive; C. Within ten days of receipt of a demand therefor from the Maine State Employees Association, meet and negotiate over the proposal that employee Connie Levesque be reclassified from the position of Account Clerk to that of Senior Principal Clerk, unless said employee has already been reclassified pursuant to the agreements mentioned in section II(A) of this order; D. Sign, date, post and keep posted for 30 consecutive days, beginning on the first day of the 1990-91 school year, at such places as notices are normally posted for the attention of the School Department employees in the Lewiston General Government Employees bargaining unit, a copy of the attached "Notice"; E. Take such reasonable steps as may be necessary to assure that said posted notices are not altered, defaced or covered by any other material while they are posted pursuant to this order; and -25- F. Within 20 days of the date of this order and again once the aforementioned notices have been posted, notify the Executive Director, in writing, of the steps that have been taken to comply with this order. III. The balance of the prohibited practice complaint filed by the Maine State Employees Association on January 18, 1990, as amended, is hereby dismissed. Dated at Augusta, Maine, this 21st day of August, 1990. MAINE LABOR RELATIONS BOARD /s/__________________________ The parties are advised of Jessie B. Gunther their right pursuant to 26 Alternate Chair M.R.S.A. 968(5)(F) (1988) to seek review of this decision and order by the Superior Court by filing a /s/__________________________ complaint in accordance with Thacher E. Turner Rule 80B of the Rules of Civil Employer Representative Procedure within 15 days of the date of this decision. /s/__________________________ George W. Lambertson Employee Representative -26- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE _____________________________________________________________ NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS LAW we hereby notify all personnel that: 1. WE WILL NOT make unlawful unilateral changes in the classification of individual bargaining unit employees. 2. WE WILL NOT fail and refuse to negotiate upon demand with the Maine State Employees Association over the mandatory subjects of bargaining, unless the parties have agreed otherwise in a prior written contract and, specifically, we will not fail and refuse to negotiate with the bargaining agent over the reclassification of employee Connie Levesque. 3. WE WILL NOT otherwise interfere with, restrain, or coerce bargaining unit employees in the free exercise of the rights guaranteed by the Municipal Public Employees Labor Relations Law through violations of the duty to negotiate in good faith. 4. WE WILL reinstate the status quo concerning bargaining unit employee job classifica- tions as of January 18, 1990, except for any changes therein made pursuant to Article 7, Sections 2 and 5, or the parties' 1989-91 collective bargaining agreement or those made pursuant to the job description review process contained in the parties' Memorandum of Understanding dated December 7, 1989. 5. WE WILL, during the term of the 1989-91 collective bargaining agreement or as other- wise agreed by the parties, make reclassification decisions only in the manner pro- vided in the agreements mentioned in the preceding directive. 6. WE WILL, within ten days of receipt of a demand therefor from the Maine State Employees Association, meet and negotiate over the proposal that employee Connie Levesque be reclassified from the position of Account Clerk to that of Senior Principal Clerk, unless said employee has already been reclassified pursuant to the agreements mentioned in paragraph 4 above. 7. WE WILL, within 20 days of the date of the Board's order and again once copies of this notice have been posted, notify the Maine Labor Relations Board, at its offices in Augusta, Maine, in writing, of the steps that have been taken to comply with the Board's order. SCHOOL COMMITTEE OF THE CITY OF LEWISTON Dated: By: ____________________________________ Robert V. Connors, Superintendent _________________________________________________________________________ This Notice must remain posted for 30 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333, Telephone 289-2015.