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.
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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-
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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.
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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
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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.
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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,
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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
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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
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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.
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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,
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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
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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
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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.
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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:
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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
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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.