STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-12
Issued: July 11, 1991
____________________________________
)
AUBURN SCHOOL SUPPORT PERSONNEL, )
AFT, LOCAL 3832, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
AUBURN SCHOOL COMMITTEE, )
)
Respondent. )
____________________________________)
On December 20, 1990, Auburn School Support Personnel, AFT, Local 3832
("ASSP"), filed a prohibited practice complaint with the Maine Labor
Relations Board ("Board") alleging that the Auburn School Committee
("School Committee") had, by certain actions, violated section 965 of the
Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.
965 (1988). An amended complaint to correct certain procedural
deficiencies was filed on January 4, 1991. The complaint was further
amended, by agreement of the parties, at the prehearing conference on
February 7, 1991.
The ASSP complaint, as amended, alleged violation of sections
964(1)(A), (B), (C) and (E) and 965(1)(A), (B) and (C) of the MPELRL by the
following actions: 1) unlawful deduction of money for health in;urance
premiums from the pay of bargaining unit members represented by ASSP;
2) failure to meet at reasonable times before making said deductions;
3) denial of ASSP participation in a health committee that had been set
up to investigate health care options for School Committee employees;
4) engaging in "take it or leave it" bargaining prior to making the health
insurance premium deductions; 5) failure to meet at reasonable times for a
grievance negotiation session regarding the deduction; 6)1 continued
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1Allegations 6 and 7 were added to the complaint in the January 4th
amendment.
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hostility toward ASSP as evidenced by the failure to cite lack of timeli-
ness of the grievance until an advanced stage in the grievance process; and
7) exhibiting further animus toward ASSP when an agent of the School
Committee refused to sign anything but her initials upon hand receipt of
the complaint on December 13, 1990, which action caused an initial finding
by the Board of insufficiency in service of process of the complaint.
In its response to the complaint, the School Committee denied that any
violation had occurred, and asserted three affirmative defenses:
1) failure to state a claim upon which relief could be granted; 2) the sta-
tutory six-month time bar; and 3) deferral to a pending arbitration.
On February 7, 1991, Board Chair Peter T. Dawson convened the prehearing
conference in this matter. His February 12, 1991 Prehearing Conference
Memorandum and Order is incorporated in and made a part of this decision
and order. At that conference, counsel for the School Committee acknow-
ledged receipt by the School Committee of the complaint on December 13,
1990. Accordingly, ASSP withdrew its allegation in connection with
service of the complaint. Also, ASSP agreed to arrange for the pending
arbitration to be held in abeyance during this proceeding. In response,
the School Committee withdrew its request for deferral to the arbitration.
Alternate Chair Pamela D. Chute convened the hearing in this matter on
March 1, 1991, accompanied by Alternate Employer Representative Jim A.
McGregor and Employee Representative George W. Lambertson. Rebecca
Fernald, AFT staff representative, and Thomas Flood, AFT national represen-
tative, represented ASSP. Shari B. Broder, Esquire, represented the School
Committee. The parties were given full opportunity to examine and cross-
examine witnesses, introduce documentary evidence, and make oral argument.
The parties filed post-hearing briefs, the last of which was filed on
April 29, 1991.
On May 7, 1991, the Board received a motion to reopen the record,
requesting the admission of three documents that had not been presented at
hearing. By agreement of the parties the motion was withdrawn on May 15th,
with a stipulation that the record be reopened for entry of the three
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documents. The Board included those documents in its deliberation on
June 5, 1991.2
JURISDICTION
Complainant ASSP is the bargaining agent, within the meaning of 26
M.R.S.A. 962(2) (1988), for a bargaining unit of support personnel
employed by the Auburn School Committee. The School Committee is the
public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1990),
of the employees in that unit. The jurisdiction of the Board to hear this
case and to render a decision and order lies in 26 M.R.S.A. 968(5)
(1988).
FINDINGS OF FACT
1. During the time period covered by the complaint in this matter,
there were five bargaining units for employees of the Auburn School
Committee: the support personnel unit (ASSP, the complainant in this
matter); a teachers' unit; an administrators' unit; a teacher aides and
assistants' unit; and a secretaries' unit.3
2. The last two-year contract for support personnel expired in
mid-1989. Effective July 1, 1989, ASSP and the School Committee entered
into a successor agreement for support personnel for a term of three years
("89-92 agreement").
3. In the 1985-87 and 1987-89 agreements between the School Committee
and ASSP, the School Committee's health insurance premium contribution was
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2Review of these documents revealed that inaccurate testimony had been
provided by one of the witnesses at hearing. The Board makes no judgment
regarding whether the errors were or were not intentional, and notes that
that aspect of the record had no impact on the outcome of this case.
However, we wish also to make it clear that parties and their witnesses
that appear before this Board are expected to make every effort to present
evidence that is accurate and complete. Perjury is a Class C crime.
17-A M.R.S.A. 451(6) (1983).
3The teacher aides and assistants' unit and the secretaries' unit merged
on June 3, 1991.
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tied to the Committee's contribution under its agreement with the Maine
Teachers Association for the teachers' unit -- that is, whatever the
teachers received, support personnel received. During the term of those
two ASSP contracts, the School Committee contribution for support personnel
was 100% of the insurance premiums.
4. Two-year contracts for each of the other four bargaining units
expired in mid-1990. Two of those contracts (for teachers and for secre-
taries) committed the School Committee to pay 100% of insurance premiums,
with dollar amounts also specified. The other two (for administrators and
for teacher aides and assistants) contained only dollar amounts that the
School Committee was required to pay for insurance.
5. Article XVII of the 89-92 agreement for support personnel reads as
follows:
A. Fifty-two (52) week Employees
Health Insurance
During July 1, 1989 to June 30, 1990 contract year, the School
Committee shall contribute the following premium payments towards
health insurance and major medical insurance coverage:
Full Family - $323.63/month
Two Adults - $265.19/month
Single Subscriber - $118.13/month
All other employees shall be single subscriber at $118.13/month.
The Health Committee's recommendation will be forwarded to the
negotiation team for consideration by April 2, 1990. If such con-
sideration is not ratified by both parties, the issue will then be
reopened.
Thus, the agreement specified the dollar amount to be paid by the School
Committee for insurance premiums, and for the first year of the agreement
only.
6. The health committee to which Article XVII refers was established
prior to negotiations for the ASSP contract, to look at health care options
for School Committee employees. It included representatives for the
teachers' unit, the administrators' unit, the secretaries' unit, Auburn
School Deoartment management, and the School Committee.
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7. At the time that the 89-92 agreement was reached between ASSP and
the School Committee, negotiators for ASSP were under the impression that
the language they had agreed to in Article XVII was based on language in
the existing teachers' agreement. Prior to signing the 89-92 agreement,
members of the ASSP negotiating team did not check the teachers' contract
to see whether in fact that was the case.
8. During negotiations for the 89-92 agreement, ASSP requested that
it be permitted to participate in the health committee referred to in
Article XVII, and it was told it would be able to do so. Subsequently, when
the subject was brought up at a health committee meeting, members of that
committee decided that they did not want to increase the size of the com-
mittee. Thereafter (in July of 1989, according to the complaint), ASSP was
informed by the Superintendent that it would not be able to participate.
9. The health committee did not make a recommendation by April 2,
1990, regarding health insurance coverage, as specified in the 89-92
agreement. In late March or early April, Jude Cyr, business agent for the
Auburn School Department, told ASSP that the health committee had ceased to
function (it had disbanded in March). There was also discussion at that
meeting about the fact that a new contract was being negotiated for the
teachers. Both Cyr and ASSP were willing, if not eager, to postpone nego-
tiations on insurance premiums for the last two years of the ASSP agreement
to see what the outcome would be of the ongoing negotiations for the
teachers' contract. ASSP representatives took Cyr's statements to mean
that ASSP would get whatever was negotiated for the teachers. Cyr took
ASSP's statements to mean that ASSP did not want to be the first of the
five bargaining units to renegotiate the issue of health insurance pre-
miums. Neither party sent the other a 10-day notice or otherwise
demanded negotiations on the issue.
10. ASSP was willing to put off negotiations for a second reason. It
was under the impression that until the insurance issue was resolved in
negotiations, the School Committee would pay the increase in premiums sche-
duled to take effect in July. This belief was based on 1) a statement
during the negotiations in 1989 by a School Committee negotiator that the
expired (87-89) contract would be honored during negotiations for a new
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one; 2) the fact that under previous contracts, the School Committee had
always paid 100% of the insurance premium; and 3) the fact that the dollar
amounts in the first year of the 89-92 agreement covered 100% of the
premium.
11. In a phone conversation on June 21, 1990, Jude Cyr told the then-
president of ASSP, Ralph Blanchard, that he wanted a meeting to discuss
health insurance. At that time, ASSP had already been informed by the
insurance carrier that an increase in premiums was going to occur. In a
follow-up letter dated June 21, Cyr informed Blanchard of the following:
This is a follow-up to our telephone discussion relating to the
Health Insurance Premium increase. On Wednesday, June 20, 1990,
the Auburn School Committee was informed about the negotiation
status with the Teachers Association. The Health Coverage is one
of the major issues surrounding negotiations and after the first
mediation session, the likelihood of a settlement is not near.
Therefore, the School Committee instructed the administrators to
notify the non-instructional negotiations team that the unresolved
issue on health insurance needs to be reopened. The Auburn School
Committee will continue to pay the 1989/90 premium but until this
issue is resolved, the July 1, 1990 increase will be deducted from
the employee payroll beginning July 10, 1990.
We have scheduled June 27, 1990 at 8:00 A.M. as our meeting time
to review and negotiate the Health Insurance benefit.
I will notify John Abbott, the School Committee negotiation member
of our scheduled meeting.
I will see you and your negotiation members on June 27, 1990.
12. The parties met on June 27th or 28th. At that meeting, Cyr pro-
vided ASSP with written information regarding the upcoming premium
increase. The School Committee had directed Cyr to seek agreement from
ASSP for an employee contribution of 50% of the increase, and the document
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Cyr provided to ASSP showed what the dollar figures would be for that level
of employee contribution. ASSP did not agree to pay any portion of the
increase, at least in part because it did not want to jeopardize its future
negotiation position with respect to this issue.
13. ASSP representatives left the meeting expecting that 50% of the
premium increase would be deducted from employee pay. Shortly thereafter,
ASSP called a meeting of employees, who voted to file a grievance. The
"class action" grievance was filed on August 8, 1990.
14. On July 10, 1990, the School Committee began deducting 100% of the
premium increase from support personnel pay. It has continued to do so,
since the issue has not been resolved in negotiations.
15. Pursuant to the language in their expired contracts, administra-
tors and teacher aides and assistants also began paying for the insurance
premium increase in 1990.
16. After the deduction began, several meetings were held between the
parties to explore and gather information on insurance alternatives,
including alternate carriers. At at least one of the meetings, on October
24, 1990, School Committee representatives brought up the issue of cost-
sharing. One representative suggested that the School Committee would pro-
bably agree to an employee contribution of 5 or 10% of the premium
increase. ASSP rejected the suggestion.
17. The grievance procedure in the 89-92 agreement requires that
grievances be filed within 20 work days of receiving "written notice of the
matter that is subject to grievance."
18. Through level three of the four-level grievance procedure, the
insurance premium grievance was denied on the basis that the School
Committee was complying with Article XVII of the 89-92 agreement. Level
four of the procedure provides for appeal of a grievance to the School
Committee itself. The grievance reached the School Committee on October
10, 1990. A meeting was scheduled for 7:30 p.m. on November 28th between
ASSP and the School Committee. A public School Committee meeting was also
scheduled for that evening, beginning at 7:00 p.m. By approximately
10:15 p.m. the grievance meeting had not yet occurred. Consequently, ASSP
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informed Jude Cyr that employees who had intended to participate in the
grievance meeting would be leaving, since they had to be at work very early
the next morning. Alternate dates were offered, and the parties met on
December 11th.
19. At the meeting on December 11, 1990, ASSP proposed that a new
health committee be established to explore cost containment alternatives,
and that meanwhile, the School Committee should pay 100% of the insurance
premium for support personnel. The School Committee rejected the proposal
and denied the grievance, but offered to begin negotiations immediately.
ASSP stated that negotiations could not proceed until what it considered to
be bad faith on the payroll deduction was resolved.
20. The written denial of the grievance at level four indicates that
the denial was based on "literal interpretation of the contract" and
"failure of Union to file a timely grievance regarding non-participation in
Health Committee." The grievance denial further stated that the School
Committee was agreeable to establishment of a health committee and con-
tinued negotiations on the 90-91 health insurance benefit.
DISCUSSION
Six-month bar
As an affirmative defense, the School Committee cites the statutory
six-month bar4 in connection with three of ASSP's allegations: 1) failure
to meet at reasonable times before making insurance premium deductions from
employees' pay; 2) engaging in "take it or leave it" bargaining prior to
the health insurance premium deductions; and 3) denying ASSP participation
in a health committee that had been set up to investigate health care
options for School Committee employees. The initial complaint was filed on
December 20, 1990. ASSP was contacted, both orally and in writing, on June
21, 1990, regarding setting a meeting for health insurance discussions.
The meeting at which "take it or leave it" bargaining is alleged to have
occurred took place on June 27th or 28th. Consequently, neither of the
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4". . . [N]o hearing shall be held based upon any alleged prohibited
practice occurring more than 6 months prior to the filing of the complaint
with the executive director." 26 M.R.S.A. 968(5)(B) (1988).
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first two allegations is barred.
The School Committee's defense to the third allegation of the three is
proper. Testimony at hearing regarding the Superintendent's notification
to ASSP that it would not be able to participate in the health committee
did not establish a date for that notification, although it occurred some-
time shortly after negotiations for the 89-92 ASSP agreement were con-
cluded. The complaint sets the first notification in July of 1989, which
comports with the time frame inferred in testimony. The health committee
disbanded sometime in March of 1990, so notification had to have occurred
before then. Accordingly, this allegation, although it may or may not
otherwise be meritorious, is barred and must be dismissed.
Deduction of insurance premium increase
Most of the allegations in ASSP's complaint are directly related to the
deduction of the insurance premium increase from employees' pay that began
in July of 1990. No health insurance recommendation had been made by the
health committee, the second year of the parties' three-year contract had
just begun, and no agreement had been reached regarding the payment of
health insurance premiums for the second and third years.
At hearing, witnesses for ASSP indicated that at the time they agreed
to the insurance provision in their 89-92 agreement (Article XVII), they
had been led to believe that it was the same as the insurance provision in
the then-existing teachers' contract. As a result, ASSP asserts, it
believed that whatever the teachers got in upcoming negotiations for a new
contract, ASSP would get in the second and third years of its own contract.
Furthermore, ASSP asserts, it did not demand negotiations on the insurance
issue in April of 1990, when it found out that no health committee recom-
mendation would be forthcoming, because statements by Jude Cyr in connec-
tion with the disbanded health committee again led ASSP to believe that
support personnel would get whatever the teachers got in negotiations that
were then occurring for a new teachers' contract.
It should be made clear that the issue of whether the School Committee
made a promise that it has not kept is not before us. The teachers'
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contract did not settle in mid-1990 as expected.5 In fact, it had not
settled at the time of the hearing in this case, almost a year later.
Consequently, what is before us is the issue of what the School Committee
was required to pay after the first year of the 89-92 agreement and in
the absence of an agreement for the succeeding two years -- as a result
of a settled teachers' contract or otherwise.
At the heart of ASSP's allegation that the July 1990 premium deduction
was unlawful is the assumption that, by refusing to pay the increase pending
negotiations for the last two years of the contract, the School Committee
made an unlawful unilateral change. The Board has established a three-
pronged test for determining whether an unlawful unilateral change has
occurred:
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) must involve one or more of the mandatory subjects
of bargaining.
Teamsters Local Union No. 48 v. Eastport School Dept., No. 85-18, slip op.
at 4, 8 NPER ME-17003 (Oct. 10, 1985). ASSP points to two facts that it
believes establish a past practice of paying for 100% of insurance
premiums: 1) the dollar amounts to be paid by the School Committee in the
first year of the 89-92 agreement covered 100% of the premiums then being
charged by the insurance carrier; and 2) two prior ASSP contracts provided
for payment of 100% of the premium by the School Committee.
Past practice, as that term is most commonly used, is relevant either
where an existing contract is silent on the term or condition of employment
that is at issue, or where there is no contract (either no contract has
been negotiated, or the contract has expired). In the latter circum-
stance, the terms and conditions of the expired contract constitute "past
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5In essence, by choosing (or agreeing) to wait for the outcome of the
teacher negotiations in 1990, rather than making a demand to negotiate as
soon as it found out that no health committee recommendation would be
forthcoming, ASSP gambled that the teachers' contract would settle quickly
-- before the insurance provision in the ASSP agreement expired. It lost
that gamble.
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practice." The situation before us is analogous -- although the 89-92
agreement had not expired at the time the premium deduction began, in
essence the health insurance provision of that agreement had. That provi-
sion set the School Committee's insurance premium contribution for the
first year. It provided that the amount to be paid for the last two years
would be based on the recommendation of the health committee, if that
recommendation was agreed to by both parties; if not, the issue would be
reopened for negotiation.
The Board has discussed the application of the unilateral change rule
in these circumstances:
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 superceded
by the successor agreement. [Citations omitted.]
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).
ASSP is partially correct in its assessment of what constitutes past
practice in the matter before us -- the School Committee's contribution
toward health insurance premiums for the first year of the contract
established past practice and must remain in effect until it is superceded
by a successor agreement. ASSP is not correct in its reliance on contracts
prior to the 89-92 agreement. Prior contracts are no longer relevant
because the 89-92 agreement changed the practice as established in those
contracts.
ASSP also errs in its reliance on the fact that the fixed dollar amount
in the first year of the 89-92 agreement constituted 100% of the premium
during that year. ASSP cites several cases for the proposition that the
School Committee's failure to pay the premium increase -- that is, to pay
100% of the premium -- pending negotiations over this issue was an unlawful
unilateral change. Those cases are distinguishable from the one before us.
In Council 74, AFSCME v. Ellsworth School Committee, No. 81-41, 4 NPER
20-12030 (Me.L.R.B. July 23, 1981), negotiations were being conducted for a
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first contract, not a successor. The employer's past practice was to
pay 100% of insurance premiums, and no intervening contract had changed
that practice. The employer was required to continue this practice until a
contract was signed that required otherwise. In Bangor Education
Association v. Bangor School Committee, No. 83-11, slip op. at 3, 5 NPER
20-14015 (Me.L.R.B. Mar. 29, 1983), there was an expired contract; it
stated that the school committee would provide insurance benefits "at the
Committee's expense." Clearly the employer in that case had bound itself
to pay 100% of the cost of insurance. Medway Teachers Association v.
Medway School Committee, No. 80-10, 2 NPER 20-11009 (Me.L.R.B. Jan. 10,
1980), addressed an employers' reduction in insurance coverage, from full-
family to single subscriber, immediately after having negotiated a successor
contract providing for full-family coverage. (Although it would have made
no difference, the expired contract provided full-family coverage as well.)
Finally, in Easton Teachers Association v. Easton School Committee,
No. 79-14, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979), the employer ter-
minated health insurance benefits during negotiations for a successor
contract. The expired contract explicitly obligated the employer to pro-
vide that benefit.
In comparing earlier cases with the one before us, it is perhaps best
to view the distinction as one of continuation of a fixed contractual term
or condition versus continuation of a contractual procedure to determine
that term or condition. The distinction was made clear in a more recent
case, MSEA v. School Committee of the City of Lewiston, No. 90-12
(Me.L.R.B. Aug. 21, 1990). There, in response to employee reclassifica-
tions that the employer had made after contract expiration, the Board found
that the procedure in the expired contract, in which the employer had
agreed to consult the union prior to reclassifying employees, had to be
maintained during negotiations for a new contract. Employee classifica-
tions themselves were not fixed, as long as the reclassification procedure
in the expired contract was followed.
In the matter before us, the 89-92 agreement did not establish a proce-
dure for determining insurance premium payments for the first year of the
agreement -- it simply stated a fixed dollar amount. (A statement that the
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employer would pay 100% of premiums would, in essence, have set up a
"procedure" that had to be carried forward.) The School Committee has con-
tinued to pay that dollar amount. In these circumstances, we find that no
unilateral change has occurred, and we will dismiss this allegation.
Failure to meet at reasonable times and engaging in "take it or leave it"
bargaining prior to making insurance premium deductions
At the direction of the School Committee, Jude Cyr contacted ASSP on
June 21, 1990, to set up a meeting to discuss insurance; he set the meeting
for June 27th, six days later. The School Committee had directed Cyr to
set up the meeting because negotiations for a new teachers' contract had
stalled. In the meeting itself, Cyr made the offer that the School Committee
would pay 50% of the premium increase. ASSP did not agree to this propo-
sal, for a variety of reasons.
ASSP alleges that the School Committee failed to meet at reasonable
times and engaged in "take it or leave it" bargaining prior to deducting
the insurance premium increase from employees' pay. These allegations
both stem from ASSP's mistaken belief that failure of the School Committee
to absorb the insurance premium increases pending negotiations constituted
an unlawful unilateral change. For the reasons we have already outlined,
the deduction was not a change in negotiated terms and conditions of
employment -- the School Committee was simply maintaining the status quo
pending negotiations. Since the School Committee was not required to nego-
tiate before deducting the increase, ASSP's allegations must fail.
Accordingly, they will be dismissed.
Given ASSP's response to the meeting, it is not at all clear that more
time to discuss and consider Cyr's proposal would have made a difference
in any case. The real reason that ASSP was faced with the problem was the
fact that negotiations for a new teacher contract had not borne fruit.
Throughout this proceeding, ASSP has insisted that it was led to believe
that it would get whatever health insurance benefits the teachers got, once
that contract settled. It did not settle, and the June 27th meeting was
called precisely for that reason. Ironically, it was the timing of those
stalled negotiations that caused the meeting with ASSP to be called at such
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a late date, just before the insurance premiums were due to increase. As
we indicated earlier, ASSP gambled that those negotiations would settle
promptly, and it lost that gamble.
Failure to meet at reasonable times for a grievance negotiation session
and failure to cite lack of timeliness of the grievance
On August 4, 1990, in response to the insurance deduction from
employees' pay that began in July of 1990, ASSP filed a "class action"
grievance -- a grievance on behalf of all employees in the unit. The
grievance reached level four -- the School Committee -- in October. A
meeting between the parties was scheduled for 7:30 p.m. on November 28th.
A public School Committee meeting was also scheduled for that evening. By
approximately 10:15 p.m. the grievance meeting had not occurred, and
employees involved in the grievance who had to begin work early the next
morning left. The meeting was rescheduled for December 11th. ASSP alle-
ges that by failing to meet with ASSP as scheduled, early in the evening of
November 28, 1990, the School Committee violated its duty to bargain -- and
in particular, violated the requirement of section 965(1)(A) that parties
meet at reasonable times.
ASSP's second allegation in connection with its grievance concerns the
fact that at level four, the grievance was denied in part on the grounds of
lack of timeliness. This ground for rejection of the grievance had not
been raised at lower levels of the grievance procedure. ASSP asserts that
this conduct is further evidence of the School Committee's animus toward
ASSP, and that it constituted a violation of the duty to bargain.
It is important to point out that although the subject of the grievance
itself was the deduction of the insurance premium increase, which deduction
ASSP believed to be a failure to bargain, the meeting on November 28th was
a grievance hearing, not a negotiation session for the purposes of collec-
tive bargaining. Both of ASSP's allegations in connection with its
grievance appear to stem from the fact that section 965(1)(C) of the
MPELRL, which by its clear terms establishes the requirements for collec-
tive bargaining, refers to grievance arbitration. That reference is in
connection with the fact that grievance arbitration is a mandatory subject
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-- section 965(1)(C) directs employers and bargaining agents to confer and
negotiate in good faith with respect to the mandatory subjects, including
grievance arbitration. Nowhere on its face does section 965 impose its
requirements (such as the requirement in (1)(A) to meet at reasonable
times) on the grievance process itself. It is up to the parties to
establish, in their contract, how grievances will be processed.
We do not mean to suggest that if a complainant established the
existence of a pattern of refusing to process grievances in conformance
with the grievance procedure laid out in a contract, this Board would
ignore such conduct. Such a pattern would constitute a repudiation of the
negotiated grievance procedure, and thus a failure to bargain. No such
pattern was established in the matter before us. Accordingly, the alle-
gations will be dismissed.
One final point is in order regarding the issue of timeliness as a
basis for denial of the grievance. ASSP's complaint alleges that the
School Committee chair "denied complainant's grievance dealing with refusal
to bargain on health care benefits issue due to timeliness." That state-
ment is inaccurate. The grievance document that was placed in evidence
indicates that the grievance was denied at level four "due to literal
interpretation of contract and failure of Union to file a timely grievance
regarding non-participation in Health Committee." (Emphasis added.) Thus,
the timeliness finding was not in connection with the insurance deduction,
but only with respect to the matter of non-participation in the health
committee.
Neither the testimony at hearing nor the relief requested in the
written grievance indicates that the grievance was filed to appeal ASSP's
non-participation in the health committees.6 (ASSP had been denied par-
ticipation in the health committee back in mid-1989, and the grievance was
filed over a year later.) The grievance was filed to appeal the insurance
deduction, and was properly denied at each stage of the grievance process
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6The health committee issue may have been raised in support of ASSP's
contention that the insurance deduction shouldn't have occurred, and from
those discussions the School Committee took the health committee issue to be
part of the grievance.
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on the basis of the language in the parties' contract. ASSP proceeded with
the grievance, in spite of each denial. Consequently, ASSP was not harmed
by the School Committee's failure to cite the secondary reason for the
denial until level four of the grievance procedure; it did expend time that
it would not have otherwise expended.
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) (1988), it is hereby
ORDERED:
That the complaint filed by Auburn School Support Personnel,
AFT, Local 3832, against the Auburn School Committee is dismissed.
Dated at Augusta, Maine, this 11th day of July, 1991.
MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right, pursuant to 26 /s/______________________________
M.R.S.A. 968(5)(F) (1988), to Pamela D. Chute
seek review of this Decision Alternate Chair
and Order by the Superior Court.
To initiate such a review an
appealing party must file a /s/______________________________
complaint with the Superior Jim A. McGregor
Court within fifteen (15) days Alternate Employer Representative
of the date of receipt hereof,
and otherwise comply with the
requirements of Rule 80C of the /s/______________________________
Maine Rules of Civil Procedure. George W. Lambertson
Employee Representative
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