AFSCME Council 93 v. Governor McKernan and State of Maine, MLRB No. 91-18
(Employee Representative Lambertson dissenting in part, May 31, 1991), Decision 
and Order on Motion for Stay, No. 91-18, June 5, 1991, Motion for Stay of Final
Agency Action Denied, No. CV-91-208 (Me. Super. Ct., Ken. Cty., July 25, 1991),
MLRB decision affirmed, No. CV-91-208 (Nov. 27, 1991), Board decision vacated 
sub nom Bureau of Employee Relations v. AFSCME Council 93, 614 A.2d 74 (Me. 1992)

STATE OF MAINE                                  MAINE LABOR RELATIONS BOARD
						Case No. 91-18
						Issued:  May 31, 1991

_______________________________________
				       )
AFSCME COUNCIL 93,                     )
				       )
			 Complainant,  )
				       )
	 v.                            )        DECISION AND ORDER
				       )
GOVERNOR McKERNAN and STATE OF MAINE,  )
				       )
			 Respondents.  )
_______________________________________)
     
     On March 27, 1991, Council 93, American Federation of State, County and
Municipal Employees ("AFSCME"), filed an amended prohibited practice
complaint with the Maine Labor Relations Board ("Board") alleging that
Governor McKernan and the State of Maine ("State") had violated the State
Employees Labor Relations Act ("SELRA"), 26 M.R.S.A.  979-C(1)(E) and
979-D(1)(E)(1) and (3) (1988 & Supp. 1990). More specifically, AFSCME has
alleged the following violations:
	  
	  1)  that the Governor failed to advocate full funding for the
	  last year of the 1989-92 Institutional Services Unit collective
	  bargaining agreement ("current agreement," "current collective
	  bargaining agreement" or "ISU agreement"), as required by both
	  26 M.R.S.A.  979-D(1)(E)(3) (Supp. 1990) and Article 10 of the
	  current agreement, because in his 1992-93 biennium appropriations
	  bill ("biennium budget"), along with a line item to fund the
	  current agreement, the Governor included an offsetting deapprop-
	  riation, equal in amount, to implement 20 days of unpaid layoffs;

	  2)  that the proposal for 20 days of layoffs during the last year
	  of the current agreement violates the seniority provisions of
	  that agreement and constitutes a refusal to bargain collectively
	  under 26 M.R.S.A.  979-C(1)(E);

	  3)  that the Governor has advocated in the biennium budget a
	  reduction, from 60% to 50%, in the State's contribution toward
	  dependents' health insurance premiums for the last year of the
	  current agreement, which action violates the current agreement
	  and constitutes a refusal to bargain collectively under
	  26 M.R.S.A.  979-C(1)(E);

				   -1-

	  4)  that the Governor's recent implementation of a series of one-
	  day delays in the issuance of biweekly paychecks is a unilateral
	  change that constitutes a refusal to bargain pursuant to 26
	  M.R.S.A.  979-C(1)(E); and

	  5)  that for the second year of the biennium, for which no
	  collective bargaining negotiations have yet occurred, the
	  Governor has advocated in the biennium budget 20 days of unpaid
	  layoffs, the 10% reduction in the State's contribution to depen-
	  dents' health insurance premiums, and a reduction, from 100% to
	  80%, in the State's contribution toward employee health insurance
	  premiums, which actions constitute a refusal to bargain pursuant
	  to 26 M.R.S.A.  979-C(1)(E).

     In its response the State asserts that the Governor has submitted
legislation to fund the economic terms of the current agreement as required
by SELRA, and his decision to advocate offsetting savings through layoffs
is irrelevant; that the current agreement permits the 20 days of layoffs;
that pay dates are prescribed or controlled by public law and therefore are
not subject to bargaining under SELRA; that the State's contribution to
employee health insurance premiums is prescribed and controlled by law and
therefore is not subject to bargaining; that AFSCME has waived its right to
bargain over any changes or proposed changes that are the subject of the
Complaint; and that for changes that have been proposed and not imple-
mented, the controversy is not ripe.

     On April 1, 1991, AFSCME requested, in writing, that this matter be
heard on an expedited basis. On April 5th, the Board heard oral argument
on the request, and after deliberation, granted the request and set an
expedited schedule. In accordance with that schedule, the parties met with
Board staff to attempt to reach agreement on a stipulated record. On April
12, 1991, Board Chair Peter T. Dawson convened a prehearing conference;
the April 12th Prehearing Conference Memorandum and Order, including the
stipulations attached thereto, is incorporated in and made a part of this
decision and order. An evidentiary hearing was convened on April 17, 1991,
for the purposes of addressing one issue for which the parties were unable
to stipulate a record, and presenting oral argument on the case as a whole.
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 received on
May 3, 1991. The Board deliberated this matter on May 9, 1991.

     On May 13, 1991, AFSCME filed its Motion to Withdraw Complaint in Part.
On May 15, 1991, the Board requested that AFSCME clarify its motion. Upon
receipt of the clarification, and having received no objection to the
motion from Respondents, the Board granted AFSCME's motion to withdraw
allegation (1) above.
		
			       JURISDICTION

     Complainant AFSCME is a bargaining agent within the meaning of 26
M.R.S.A.  979-A(1) (1988). The State is a public employer within the
meaning of 26 M.R.S.A.  979-A(5) (1988). The jurisdiction of the Board to
hear this case and to render a decision and order lies in 26 M.R.S.A.
 979-H (1988).

			       STIPULATIONS
		   
     The parties reached the following stipulations:

     1.  AFSCME is the collective bargaining agent for the Institutional
Services bargaining unit consisting of mental health, educational and
correctional workers in the State of Maine, which unit contains approxi-
mately 1,500 State workers.

     2.  The State of Maine is the employer of the employees in the Institu-
tional Services bargaining unit.

     3.  In the spring and summer of 1989, BOER, on behalf of the State and
the Governor, negotiated a successor collective bargaining agreement with
AFSCME which was signed on September 5, 1989, for a period of three years
(expiration date June, 30, 1992). Among other things the agreement pro-
vided for wage increases of 3% of the employees' pay on or about July 1,
1989; 3% on or about April 1, 1990; 3% on or about October 1, 1990; 3% on
or about April 1, 1991; and 7% on or about July 1, 1991.
						     
				   -3-

     4.  Article 10 of the current agreement reads as follows:

				 ARTICLE 10

				Compensation

	  The State shall prepare, secure introduction of and recommend
     passage by the Legislature of appropriate legislation in order to
     provide the benefits described in this Article.

	  A.  The State agrees to continue to pay the cost of the 6.5%
     or the cost of the 7.5% retirement contributions as previously
     agreed to pursuant to 5 M.R.S.A. 1095.

	  B.  Effective with the start of the pay week commencing clos-
     est to July 1, 1989, employees shall be provided an across-the-
     board salary increase of three percent (3%). Salary schedules
     shall be increased accordingly.

	  C.  Effective with the start of the pay week commencing clos-
     est to April 1, 1990, employees shall be provided an across-the-
     board salary increase of three percent (3%). Salary schedules
     shall be increased accordingly.

	  D.  Effective with the start of the pay week commencing clos-
     est to October 1, 1990, employees shall be provided an across-
     the-board salary increase of three percent (3%). Salary
     schedules shall be increased accordingly.

	  E.  Effective with the start of the pay week commencing clos-
     est to April 1, 1991, employees shall be provided an across-the-
     board salary increase of three percent (3%). Salary schedules
     shall be increased accordingly.

	  F.  Effective with the start of the pay week commencing clos-
     est to July 1, 1991, employees shall be provided an across-the-
     board salary increase of seven percent (7%). Salary schedules
     shall be increased accordingly.

	  Each employee employed by the State as of August 21, 1989,
     or who has retired or been laid off on or after July 1989, shall
     receive a lump sum payment of three percent (3%) of such employ-
     ee's gross pay for the week involved for each week the employee
     was employed from July 1, 1989 through August 21, 1989.

	  Permanent seasonal employees and employees on leave of
     absence, whether or not in pay status on August 21, 1989, shall
     receive the payment for all time in pay status from July 1, 1989,
     to the end of the pay week commencing closest to August 27, 1989
     or August 20, 1989 for cycles A and B, respectively. Part-time
     employees shall receive for each week a sum proportionate to the
     number of hours worked in the week.

				   -4-

	  G.  Employees shall be advanced to the next higher step on
     the salary schedule upon satisfactory completion of each year of
     service.

	  H.  Effective July 1, 1990, a shift differential of thirty
     cents ($.30) per hour will be paid for shifts starting between
     12:00 p.m. and 9:59 p.m. for full-time employees regularly
     assigned to such shifts. A shift differential of thirty cents
     ($.30) per hour will be paid for shifts starting between 2:00
     p.m. and 9:59 p.m. for part-time employees regularly assigned to
     such shifts. A shift differential of forty cents ($.40) per hour
     will be paid for shifts starting between 10:00 p.m. and 3:00 a.m.
     for full-time and part-time employees regularly assigned to such
     shifts. Employees with shifts starting between 12:00 p.m. and
     2:00 p.m. who work alternative work schedules shall only be paid
     the thirty cent ($.30) shift differential when they actually work
     a shift starting between 12:00 p.m. and 2:00 p.m.

	  Effective July 1, 1991, a shift differential of thirty-five
     cents ($.35) per hour will be paid for shifts starting between
     12:00 p.m. and 9:59 p.m. for full-time employees regularly
     assigned to such shifts. A shift differential of thirty-five
     cents ($.35) per hour will be paid for shifts starting between
     2:00 p.m. and 9:59 p.m. for part-time employees regularly
     assigned to such shifts. A shift differential of forty-five
     cents ($.45) per hour will be paid for shifts starting between
     10:00 p.m. and 3:00 a.m. for full-time and part-time employees
     regularly assigned to such shifts. Employees with shifts start-
     ing between 12:00 p.m. and 2:00 p.m. who work alternative work
     schedules shall only be paid the thirty-five ($.35) shift differ-
     ential when they actually work a shift starting between 12:00 p.m.
     and 2:00 p.m.

	  The shift differential will be considered part of base pay
     for overtime pay and paid leave purposes.

	  I.  Six dollars ($6.00) per week premium will be paid to full
     time and prorated to part-time employees who are assigned on a
     regular basis to split shifts with such premium considered as
     part of base pay for overtime and paid leave purposes.

	  J.  Effective with the start of the pay week commencing clos-
     est to July 1, 1989, a twelve dollar ($12.00) per week premium
     will be paid to full-time and prorated to part-time employees
     possessing certification who regularly administer medication to
     residents or patients with such premium considered as part of
     base pay for overtime and paid leave purposes.

	  Effective July 1, 1990, this medication premium will increase
     to fourteen dollars ($14.00) per week to the base.

	  Effective July 1, 1991, this medication premium will increase
     to sixteen dollars ($16.00) per week to the base.

				   -5-

	  K.  Effective January 1, 1990, employees with fifteen years
     (15) but less than twenty years (20) of continuous State service
     shall receive longevity pay of a total of twenty cents ($.20) per
     hour to the base. Employees who become eligible after that date
     shall receive the longevity pay of a total of twenty cents ($.20)
     per hour to the base upon eligibility.

	  Effective January 1, 1990, employees with twenty years (20)
     of continuous State service shall receive longevity pay of a
     total of thirty cents ($.30) per hour to the base. Employees who
     become eligible after that date shall receive the longevity pay
     of a total of thirty cents ($.30) per hour to the base upon eli-
     gibility.

	  Effective January 1, 1991, employees with fifteen years (15)
     but less than twenty years (20) of continuous State service shall
     receive longevity pay of a total of thirty cents ($.30) per hour
     to the base. Employees who become eligible after that date shall
     receive the longevity pay of a total of thirty cents ($.30) per
     hour to the base upon eligibility.

	  Effective January 1, 1991, employees with twenty years (20)
     of continuous State service shall receive longevity pay of a
     total of forty cents ($.40) per hour to the base. Employees who
     become eligible after that date shall receive the longevity pay
     of a total of forty cents ($.40) per hour to the base upon eligi-
     bility.

	  L.  Effective July 1, 1989, employees assigned to a State
     institution other than the Maine State Prison shall be eligible
     for a weekend differential of twenty-five cents ($.25) per hour
     to the base for shifts beginning 10:00 p.m. Friday and 9:59 p.m.
     Sunday. Employees of the Maine State Prison shall be eligible
     for weekend differentials of twenty-five cents ($.25) per hour to
     the base for shifts starting between 8:20 p.m. Friday and 9:29 p.m.
     Sunday.

	  Effective July 1, 1990, this differential shall increase to
     fifty cents ($.50) per hour to the base.

	  M.  Effective July 1, 1989, employees with direct care
     responsibilities for persons residing in institutions of the
     Department of Mental Health and Mental Retardation, and Correc-
     tions and students of the Baxter School for the Deaf, shall
     receive ten cents ($.10) per hour to the base.

	  Effective with the start of the pay week commencing closest
     to July 1, 1990, this differential shall increase to twenty cents
     ($.20) per hour to the base.

	  Effective with the start of the pay week commencing closest
     to July 1, 1991, this differential shall increase to thirty-five
     cents ($.35) per hour to the base.

				   -6-

	  N.  An employee required to work two (2) shifts in a twenty-
     four (24) hour period will be paid an additional one (1) time
     payment of four dollars ($4.00) for the week regardless of the
     number of double shifts worked. This provision does not apply to
     employees who voluntarily work said shifts for their own con-
     venience. The State retains the right to establish schedules
     which minimize the payment of the premiums provided under this
     provision.

	  Continuous State service is defined as continuous employment
     including all authorized leaves of absence since the last date of
     hire into a status granting position.

	  0.  Any employee who is specifically directed to standby in
     a specific location(s), and who is available for immediate recall
     to duty, shall be paid for two (2) hours straight time hourly pay
     for each day of such standby status. Standby pay shall not be
     included as time worked toward the computation of overtime pay.
     Employees who are recalled to work in accordance with Article 6
     shall not be eligible for standby pay for that particular day.
     Employees shall not receive standby pay when they are not
     available for call.


     5.  Article 17 of the current agreement reads as follows:

			       ARTICLE 17

			 Embodiment of Agreement

	  The parties acknowledge that during the negotiations which
     preceded this Agreement, each had the unlimited right and oppor-
     tunity to make demands and proposals with respect to any subject
     or matter not removed by law from the area of collective bargain-
     ing and that the understandings and agreements arrived at by the
     parties after the exercise of that right and opportunity are set
     forth in this Agreement. Therefore, the State and Council #93,
     AFSCME, AFL-CIO, for the life of this Agreement, each voluntarily
     and unqualifiedly waive the right, and each agrees that the other
     shall not be obligated to bargain collectively with respect to
     any subject or matter referred to or not referred to, covered or
     not covered in this Agreement, even though such subjects or mat-
     ters may not have been within the knowledge or contemplation of
     either or both of the parties at the time they negotiated and
     signed this Agreement.
     
				   -7-

     6.  Article 23 of the current agreement reads as follows:

			       ARTICLE 23

			 Health, Life Insurance

	  The State shall pay the basic group life insurance premiums
     for those employees who are members of this bargaining unit.
     This provision shall not diminish the right of employees to carry
     additional insurance on themselves or their dependents under pre-
     sent statutes. The State will provide one million dollars aggre-
     gate major medical coverage to employees.

	  The State Employee Health Commission shall, before July 1,
     1990, offer two (2) or more health insurance plan options from
     which employees covered by this Agreement may choose.

	  The State of Maine shall pay toward the costs of the plan
     chosen by the employee an amount equal to the full cost of
     employee coverage and not less than sixty percent (60%) of the
     selected dependent package for the designated plan.

	  The designated plan as used here means a plan which covers
     all the activities, services and purchases as the current plan at
     no greater percentage of payment by the insured in any form,
     including but not limited to co-payments and deductibles. After
     July 1, 1990 the designated plan will require the insured to seek
     the activities, services and purchases in more restrictive or
     fewer settings and locations than the current plan.

	  As used here the current plan means the plan offered by Blue
     Cross/Blue Shield and BAMICO of Maine on July 1, 1989.

	  The term selected dependent package means the two-person,
     adult-child, or family coverage as designated by the employees
     subject to enrollment Provisions.

     7.  Article 28 of the current agreement reads as follows:

			       ARTICLE 28

			 Maintenance of Benefits

	  With respect to negotiable benefits, terms and conditions
     affecting members of this unit, which are not covered by the
     Aqreement, but which are presently provided pursuant to law,
     written regulations, personnel rules, written directives, or
     special orders, the State agrees to make no changes without
     appropriate prior consultation and negotiation with the Union.
    
				   -8-

     8.  Article 29 of the current agreement reads as follows:

			       ARTICLE 29

			    Management Rights

	  The Union agrees that the State has and will continue to
     retain the sole and exclusive right to manage its operations and
     retains all management rights, whether exercised or not, unless
     specifically abridged, modified or delegated by the provisions of
     this Agreement. Such rights include but are not limited to: the
     right to determine the mission, location and size of all agencies
     and facilities; the right to direct its work force; to administer
     the merit system, including the examination, recruitment, selec-
     tion, hiring, appraisal, training, retention, promotion assign-
     ment or transfer pursuant to law; to establish specifications for
     each class of positions and to classify or reclassify and to
     allocate or reallocate new or existing positions in accordance
     with law; to discipline and discharge employees for just cause;
     to determine the size and composition of the work force; to make
     temporary layoffs at its discretion; to contract out for goods
     and services; to determine the operating budget of the agency; to
     install new, changed or improved methods of operations; to relieve
     employees because of lack of work or for other legitimate
     reasons; to maintain the efficiency of the government operations
     entrusted to them; and to take whatever actions may be necessary
     to carry out the mission of the agency in situations of
     emergency.

	  Nothing in this Article shall be construed to deprive the
     employees of any rights specifically set forth in this Agreement
     or deprive them of the right to the grievance procedure herein.

     9.  The layoff provision of Article 43 of the current agreement reads as
follows:

			       ARTICLE 43

				Seniority

     Layoffs

	  In cases of layoffs and demotions in lieu of layoff, for
     periods of more than four (4) workdays, the procedure shall be as
     follows:

	  (a)  the least senior employees within the classifications
     and applicable organizational unit involved shall be laid off or
     may exercise his/her right to "bump" in lieu of layoff, in accor-
     dance with the provision of this section. Should such employee
     desire to be laid off, and not exercise his/her right to "bump",
     he/she may sign a waiver attesting to his/her desire to be laid

				   -9-

     off and subject to the conditions outlined in the waiver, a copy
     of which is shown in Appendix A;

	  (b)  in those instances where an employee is affected by (a)
     above, the affected employee may "bump" (1) the most junior
     employee within the applicable organizational unit in any occupa-
     tionally related classification which he/she has the ability to
     efficiently perform without training in the skills of the job, or
     (2) the most junior employee in a classification the affected
     employee has previously held. The affected employee shall be
     placed on the first step of the new pay range that results in at
     least a five percent (5%) pay reduction. In any case, the
     employee may only "bump" employees in the same or lower rate
     ranges. The so-called "bumped" employee will follow the same
     procedure in exercising the right to "bump" if it is available;

	  (c)  in those instances where the employees affected in
     (a) above cannot exercise the right to "bump", such employees
     shall be laid off;

	  (d)  any employee who wishes to exercise the right to "bump"
     an employee with less seniority must possess the abilities to
     efficiently perform the duties of the classification "bumped"
     into and must have the present ability to perform all of the
     duties of the applicable classification, without training in the
     skills of the job;

	  (e)  the State shall give employees about to be laid off a
     ten (10) workday notice of such layoff. Such employees shall be
     required to reply in writing within five (5) workdays of notice
     of layoff as to their decisions on layoff and displacement
     rights. Employees who are displaced as a result of the exercise
     of other employees' "bumping" rights pursuant to the provisions
     of this Article shall be given notice of a pending layoff as
     soon as practical and at least five (5) workdays before the
     effective date of the layoff. Such employees shall be required
     to reply in writing within five (5) workdays of notice of layoff
     as to their decision on layoff and displacement rights.

	  (f)  resigns from his/her employment. An employee is
     required to submit to the employer, at least fifteen (15) calen-
     dar days prior to the effective date of his/her resignation, a
     written notice of resignation. During the first five (5) days of
     such fifteen (15) day period the employee may retract his/her
     resignation without prejudice and such retraction must be
     accepted by the employer. Any retraction of the written resigna-
     tion, presented by the employee during the period beginning ten
     (10) days prior to the effective date of the written resignation
     and extending through the period of ten (10) days after the
     effective date of the resignation, may be accepted at the sole
     discretion of the appointing authority of the applicable agency.
	      
				   -10-

	  An employee who accepts promotion to a position outside of
     the bargaining unit but within the agency, shall have the right
     to return to a vacant position within the bargaining unit pro-
     vided such return is not occasioned by a layoff. If such
     employee returns to a position within the bargaining unit within
     one (1) year of the date he left such unit, he shall be given:

	  (a)  the State service seniority credited at the time he/she
     left the bargaining unit, including all time accrued in the posi-
     tion promoted to and any subsequent position held prior to re-
     turning to the bargaining unit;

	  (b)  the total longevity credited at the time he returns to
     the bargaining unit;

	  (c)  should no vacancy exist, such employee shall be consi-
     dered to be on layoff from the last position held in the
     bargaining unit for a period of two (2) years minus time spent on
     the position outside the bargaining unit; and

	  (d)  any employee returning to the bargaining unit must have
     been classified to the applicable position and have the abilities
     to perform the duties of the position without training in the
     skills of the classification.

    10. The third paragraph of the Termination provision of Article 56 of
the current agreement reads as follows:
		 
			      ARTICLE 56

			   Term of Agreement
			      Termination

	  The parties agree that cost items resulting from compensation
     system collective bargaining currently being conducted pursuant to
     26 M.R.S.A. 979-D(1)(E)(1)(g), (h), and (i) shall pursuant to
     26 M.R.S.A. 979-D(1)(E)(4)(f) be submitted for funding as part of
     legislation submitted to fund the third year of the term of this
     Aqreement if the compensation system bargaining is concluded at
     that time.

    11.  The parties incorporate the remainder of the contents of
the 1989-1992 collective bargaining agreement as if set out in full.

    12. The cost items in the agreement reached between AFSCME and the
State for the Institutional Services bargaining unit were submitted by the
Governor to the 114th Legislature for fiscal years 1990 and 1991. The

				   -11-

Legislature, in turn, approved the economic terms of the collective
bargaining agreement for fiscal years 1990 and 1991 as submitted by the
Governor. The bill submitted by the Governor and approved by the Legis-
lature contained the following language:

	  Funding for fiscal year 1991-92. Funding and implementation
     of the economic terms of the collective bargaining agreement be-
     tween the State and the American Federation of State, County and
     Municipal Employees - Council #93 representing employees in the
     institutional services bargaining unit for the fiscal year ending
     June 30, 1992, shall be subject to approval and appropriation of
     $3,734,000 from the General Fund by the First Regular Session of
     the 115th Legislature.

    13.  On or about March 4, 1991, the Governor presented to the 115th
Legislature his proposed budget for fiscal years 1992 and 1993 (L.D. 927
and 928). That budget includes a provision, for the Department of Finance,
entitled Salary Plan, Personal Services; the sums of $20,000,000 (for
fiscal year 1992) and $20,500,000 (for fiscal year 1993) are appropriated
"to implement the collective bargaining agreement[sl." Included in those
figures are funding for the July 1, 1991 pay raise and other cost items
scheduled to go into effect during fiscal year 1992 as negotiated in the
1989-92 collective bargaining agreement for the Institutional Services
bargaining unit.

    14.  The budget presented to the Legislature also includes a provision,
entitled Salary Plan, Personal Services, which deappropriates $20,000,000
(for fiscal year 1992) and $20,500,000 (for fiscal year 1993), and which
states: "Provides for the deappropriation of funds from the salary plan
from implementing 20 days of unpaid temporary layoffs."

    15.  Prior to submitting his budget for fiscal years 1992 and 1993 to
the Legislature, the Governor and/or his agents and representatives con-
ducted no negotiations with AFSCME regarding the Governor's proposal to the
Legislature for the twenty days per year referred to as "unpaid temporary
layoffs" in the Governor's budget.

    16.  In the Governor's budget address of January 14, 1991, to the 115th
Legislature he made the following statement in connection with the proposed
"unpaid temporary layoffs":

				    -12-

     Likewise, we have found including funding for costs of the third
     year of our collective bargaining agreement with our employees to
     be difficult. We are recommending that it be paid for through
     temporary lay-offs equal to the cost of the increase scheduled to
     take place this July lst. In view of the budgetary impact of
     these additional pay raises, I am eager to join with the unions
     in any effort to explore alternatives and urge them to be more
     constructive in meeting the new realities of our budget situation.

    17.  The Governor's proposed budget also includes a provision entitled
EXECUTIVE DEPARTMENTS AND AGENCIES, Personal Services, which deappropriates
$1,900,000 (for fiscal year 1992) and $11,500,000 (for fiscal year 1993),
and which states:

     Provides for the deappropriation of funds to adjust the State's
     share of the costs of the dependents health insurance for fiscal
     years 1992 and 1993 from 60% to 50% as there is no approved HMO
     contract and to adjust the State's share of the costs of the
     employees health insurance for fiscal year 1993 from 100% to 80%.

    18.  From September of 1989, when the current collective bargaining
agreement was signed, to the present, the State has been contributing 60%
of the cost of dependents' health insurance; prior to that time, it was
contributing 50%.

    19.  At current insurance rates, the reduction in the State's contribu-
tion to dependents' health insurance would range from $7 to $16 per month;
the reduction in the State's contribution to employees' health insurance
would be $35 per month.

    20.  Since the institution of the biweekly pay period for State
employees in 1976, employees have received their paychecks eleven days
after the end of the pay period covered by those paychecks, except when
payday falls on a holiday, in which case employees are paid on the 10th or
12th day. In a memo to State employees dated February 13, 1991, the
Governor informed employees that payday would be moved one week further
away from the end of the period covered by the paycheck. This is being
accomplished by delaying paychecks one day in each of five pay periods
during a period of seven months, ending in September of 1991.

    21.  On the same date, by Executive Order, the Governor ordered that
"[b]eginning February 24, 1991, all State employees will be laid off without
pay for a total of three (3) workdays prior to June 1, 1991 . . ." In lieu
of this Order, employees in the Institutional Services bargaining unit are

				   -13-

being required to lose three days' pay through other means.

    22.  In a press release issued by Willis Lyford on the same date
(February 13, 1991), the following statement appeared in connection with
the change in payday and the three-day layoffs:

	  The Governor cited the temporary layoff or furlough, an ori-
     ginal part of his budget balancing plan since last December, as
     key to avoiding hundreds of additional layoffs of state workers.
     The Governor had first called for twelve temporary lay off days
     as a way to realize personnel cost savings in state government,
     but later scaled back his plan [to three days] and addecl the pay
     day change as a means to minimize the financial impact on the
     workforce while still securing the necessary savings.

    23.  On or about March 11, 1991, AFSCME notified the State of its
desire to negotiate over the change in the payday. AFSCME also made the
required request to meet within ten days for the purpose of negotiations.

    24.  On March 26, 1991, AFSCME received a reply from the State inform-
ing it that the State considered the date of the payment of wages not to be
a negotiable subject.

    25.  In connection with his budget proposal to the 115th Legislature,
the Governor has made the following projections:

				 FY 1992          FY 1993          TOTAL

A.  PROJECTED REVENUES       $1,491,583,252   $1,585,500,541   $3,077,084,793

B.  DEPARTMENTAL APPROPRIATIONS
     REQUESTS FOR CURRENT                            
     SERVICES                 1,932,081,216    2,076,227,063    4,008,308,279

C.  GAP (A-B = C)           ($  440,496,964) ($  490,726,522) ($  931,223,486)

D.  GOVERNOR'S APPROPRIATIONS
     RECOMMENDATIONS FOR
     CURRENT SERVICES         1,847,324,529    1,979,192,974    3,826,517,503

E.  GAP (A-D = C)           ($  355,740,277) ($  393,692,433) ($  749,432,710)
									
				   -14-

    26.  In connection with his budget proposal to the 115th Legislature,
the Governor has made the following proposal for making up the projected
deficit:

Gap                                                         $749,432,710

Proposed "Current Services" Reductions:
Major Components:
      
	- "Part B" Reductions              ($431,915,138)
	- State Employee Health Insurance    (13,400,000)
	- Retirement System Proposals      (120,953,000)
	- Supplement Appropriations           3,861,292
							   ($562,406,846)

New Revenue                                                  150,832,105

"Part 2" Reductions (LD 928)                                 (36,522,113)

	   PROJECTED BALANCE                                $    328,354

								 
			       FINDINGS OF FACT
			       
     Upon review of the record, including oral testimony and documentary evi-
dence, the Board makes the following additional findings of fact:

     1.  The level of the State's contribution toward the cost of dependents'
health insurance premiums is not set by statute.

     2.  At some point prior to completion of negotiations for the current
agreement, the State decided that it would like to be able to offer its
employees an alternative to its traditional Blue Cross/Blue Shield health
plan ("BC/BS"), in order to reduce its health care costs. Under the terms
of the current agreement (Article 23), as well as agreements with the other
unions that represent State employees, the State Health Care Commission was
directed to offer at least two health insurance plan options to employees
before July 1, 1990 (approximately 10 months after the agreements were
signed). It was the Commission's intent, at the time those collective
bargaining agreements were negotiated and signed, to offer BC/BS and a
preferred provider organization ("PPO") as the two options.
				      
				   -15-

     3.  As an inducement to AFSCME and the other unions to let the State
offer options other than BC/BS to employees, the State bargained to
increase its contribution to the cost of dependents' health insurance pre-
miums from 50% to 60% under the the traditional BC/BS plan (the State was
contributing 50% under the previous collective bargaining agreements). The
current agreement is silent on this matter -- both on the State's contribu-
tion in the ten months before the new option was to be in place, and on
what the State's contribution would be under the traditional plan once the
new plan was available. Article 23 does specify that once two options are
available to employees, the State will contribute no less than 60% of the
cost of dependents' health insurance premiums under the new option.

     4.  At the time the current agreement was signed, it was the Health
Care Commission's intention that once the second option was in place, the
State's contribution to dependents' coverage under BC/BS would be reduced
to something below 60%, in order to give employees an incentive to switch
to the new, less expensive option. This intention was not mentioned to
AFSCME during negotiations for the current agreement; AFSCME was aware of
it through its representative on the Health Care Commission.

     5.  In early April of 1990, the State, realizing that due to regulatory
problems the Health Care Commission would not have a PPO in place by July
1, 1990, contacted AFSCME to set up a meeting to discuss the situation; in
a meeting on April 5th, the State indicated that the Commission intended to
put a slightly different alternative, a Health Maintenance Organization
("HMO"), in place by October of 1990, and stated that it would continue to
pay 60% of the cost of dependents' health care premiums under BC/BS until
July 1, 1991.

     6.  No new option was in place by October of 1990. In November, the
State met with AFSCME because it realized that the HMO would not even be in
place by July 1, 1991, and that alternatives to both the PPO and HMO would
need to be explored. In December of 1990 the State met with all of the
unions that represent State employees, for the same purpose. At both
meetings, the State reiterated its intention to pay 60% of dependents'
health insurance premiums until July 1, 1991.

				   -16-

				DISCUSSION

     AFSCME has alleged the following violations by the Repondents:

	  1)  that the Governor failed to advocate full funding for the
	  last year of the ISU agreement, as required by both 26 M.R.S.A.
	   979-D(1)(E)(3) (Supp. 1990) and Article 10 of the current
	  agreement, because in his 1992-93 biennium appropriations bill,
	  along with a line item to fund the current agreement, the
	  Governor included an offsetting deappropriation, equal in amount,
	  to implement 20 days of unpaid layoffs;

	  2)  that the proposal for 20 days of layoffs during the last year
	  of the current agreement violates the seniority provisions of
	  that agreement and constitutes a refusal to bargain collectively
	  under 26 M.R.S.A.  979-C(1)(E);

	  3)  that the Governor has advocated in the biennium budget a
	  reduction, from 60% to 50%, in the State's contribution toward
	  dependents' health insurance premiums for the last year of the
	  current agreement, which action violates the current agreement
	  and constitutes a refusal to bargain collectively under
	  26 M.R.S.A.  979-C(1)(E);

	  4)  that the Governor's recent implementation of a series of one-
	  day delays in the issuance of biweekly paychecks is a unilateral
	  change that constitutes a refusal to bargain pursuant to 26
	  M.R.S.A.  979-C(1)(E); and

	  5)  that for the second year of the biennium, for which no
	  collective bargaining negotiations have yet occurred, the
	  Governor has advocated in the biennium budget 20 days of unpaid
	  layoffs, the 10% reduction in the State's contribution to depen-
	  dents' health insurance premiums, and a reduction, from 100% to
	  80%, in the State's contribution toward employee health insurance
	  premiums, which actions constitute a refusal to bargain pursuant
	  to 26 M.R.S.A.  979-C(1)(E).

In its response the State asserts that the Governor has submitted legisla-
tion to fund the economic terms of the current agreement as required by
SELRA, and his decision to advocate offsetting savings through layoffs
is irrelevant; that the current agreement permits the 20 days of layoffs;
that pay dates are prescribed or controlled by public law and therefore are
not subject to bargaining under SELRA; that the State's contribution to
employee health insurance premiums is prescribed and controlled by law and
therefore is not subject to bargaining; that AFSCME has waived its right to
bargain over any changes or proposed changes that are the subject of the

				   -17-

Complaint; and that for changes that have been proposed and not imple-
mented, the controversy is not ripe. Each allegation and response will
be addressed.

Failure to advocate funding

     AFSCME moved to withdraw this allegation, and its motion was granted by
     the Board. Consequently this allegation will not be addressed further.

1993 budget proposals

     The last allegation can be addressed with little discussion. The
Board finds no violation of SELRA in the State's submission of a 1993
budget proposal that reduces the State's contribution for both employee and
dependents' health insurance premiums and calls for 20 days of unpaid
layoffs for employees. The State's contribution for employee health
insurance is currently 100% and is set by statute. 5 M.R.S.A.  285(7)
(Supp. 1990). Since this term and condition is "prescribed or controlled
by public law," the State is under no obligation to negotiate the State's
contribution during bargaining for the next ISU collective bargaining
agreement. 26 M.R.S.A.  979-D(1)(E)(1). The State is free to seek,
without negotiating with AFSCME, a change in section 285(7); presumably it
will do so if its budget proposal is approved by the Legislature.1

     Regarding the proposed 20 days of layoffs and the proposed reduction
in the State's contribution toward dependents' health insurance premiums
for fiscal year 1993, there is nothing in SELRA that prohibits the Governor
from making these proposals. The Board wishes to make clear, however,
that since neither employee layoffs nor employer contribution toward
dependents' health insurance premiums is a subject currently "prescribed or
controlled by public law," and both therefore are mandatory subjects of
bargaining, approval of the Governor's budget proposals by the Legislature
would not remove these items from the bargaining table when the next ISU
agreement is negotiated. Any agreements on cost items reached during those
negotiations, to the extent they are inconsistent with the approved 1993
budget, must be submitted to the Legislature in a supplemental appropri-

________________________

     1ln order for the contribution level to be changed, the statute setting
that level must be amended.

				   -18-

ations bill pursuant to 26 M.R.S.A.  979-D(1)(E)(3).

Paycheck delays

     In March of 1991, the Governor began implementing a cost-saving measure
in which the payment of employee wages would occur on the 15th rather than
the 14th day after the previous payday. The one-day delay was set to occur
on five separate occasions over a seven-month period (March through September).
AFSCME argues that the series of one-day delays in paychecks effectively
postpones payment of one week's pay until employees leave State service.
The State argues that the effect of the change is simply to move the payday
one week further away from the pay period.

     The State's first defense to its action is that because the pay dates
are prescribed or controlled by public law, the State is under no obliga-
tion to bargain the change. If the statute itself permitted the change, or
if the parties' collective bargaining agreement did not prohibit the
change without bargaining, we would agree.

     The frequency of paychecks for State employees is set by statute as
biweekly:

	  All state officers and employees, except temporary and
     seasonal employees, shall be paid their salaries or wages biweekly,
     the dates of payment to be determined by the State Controller.

5 M.R.S.A.  10 (1989).2  Webster's Third New International Dictionary
defines biweekly as "occurring or appearing every two weeks: having a two-
week interval between occurrences."3  Given that definition, the Board
finds it impossible not to conclude that the Governor's decision to pay
employees every 15 days rather than every 14, in a series of five pay
________________________

     2In 1976, when the Controller established the biweekly dates of payment
pursuant to section 10, he also collaterally established an eleven-day lag
time between the end of the pay period and the issuance of paychecks for
that pay period. This lag time has not varied since 1976, except by
necessity -- when the payday falls on a holiday.

     3An alternate meaning is "appearing or occurring twice a week." The
preferred term for this situation is "semiweekly."

				   -19-

periods, is contrary to section 10.

     Article 28 of the current collective bargaining agreement between the
parties reads as follows:
	   
			   Maintenance of Benefits

	  With respect to negotiable benefits, terms and conditions
     affecting members of this unit, which are not covered by the
     Agreement, but which are presently provided pursuant to law,
     written regulations, personnel rules, written directives, or
     special orders, the State agrees to make no changes without
     appropriate prior consultation and negotiation with the Union.
     [Emphasis added.]

In effect, Article 28 incorporates by reference all negotiable4 benefits,
terms and conditions of employment that were provided by law5 at the time
the agreement was signed. 5 M.R.S.A.  10, which existed at the time the
collective bargaining agreement was signed, requires payment of wages on a
biweekly basis. By the plain language of Article 28, that term or con-
dition of employment was incorporated into the agreement, and the State
agreed not to change it unless it first negotiated such change with AFSCME.

     The State's assertion that pay dates are not a negotiable subject
because they are prescribed or controlled by public law is correct.
However, there is nothing to prohibit the State from bargaining to refrain
from certain activities -- in this case, from seeking to change the statute
(or acting contrary to it) unless it has bargained with AFSCME to do so.
That is precisely what the State has done in Article 28.

     When AFSCME heard about the proposed modification of pay dates, it
notified the State in writing of its desire to bargain the proposed change.
________________________

     4That is, benefits, terms and conditions that would be negotiable if
they weren't set by statute and therefore were not prescribed or controlled
by public law within the meaning of 26 M.R.S.A.  979-D(1)(E)(1) (1988).
At what point in time employees are paid for the work they perform is a
negotiable (mandatory) subject. Bath Firefighters Assoc. v. City of Bath,
No. 80-44, 3 NPER 20-12002 (Me.L.R.B. Oct. 17, 1980), appeal dismissed
sub nom City of Bath v. M.L.R.B., No. CV-80-114 (Me. Super. Ct., Sag. Cty.,
May 2, 1983).

     5 Benefits, terms and conditions provided by rules, regulations, direc-
tives or orders are also incorporated by reference, but do not concern us here.

				   -20-

The State refused to negotiate and implemented the proposal unilaterally,
without even seeking to make a statutory change. In refusing to bargain
the change in pay dates with AFSCME, the State violated Article 28 of the
current collective bargaining agreement. It also violated SELRA.

     The State relies on State of Maine v. Maine State Employees Association,
499 A.2d 1228 (1985), for its second defense -- its assertion that AFSCME
has clearly and unmistakably waived its right to bargain over the modified
pay dates. The State's reliance is misplaced. In State of Maine, the
State's unilateral change was specifically permitted by the contract be-
tween the parties, and the "statutory duty to negotiate over the impact of
[the change] could have been preserved in the contract. That statutory
obligation was waived [in the zipper clause]." Id. at 1232.
     
     In the matter before us, Article 28, in clear and unmistakable
language, reserves the right to negotiate over changes in any benefits,
terms and conditions provided by law and incorporated by reference, by that
article, into the ISU agreement. (It does not reserve the right to nego-
tiate over benefits, terms and conditions found elsewhere in the
agreement.) While Article 17, Embodiment of Agreement, is indeed a broad
zipper clause that protects both parties from mid-term bargaining as a
general matter, Article 28 clearly overrides that zipper clause with
respect to items referred to in that article. We know of nothing that pro-
hibits the parties from negotiating a broad zipper clause and also nego-
tiating explicit exceptions to that clause. (In fact, that is precisely
what the Court in State of Maine indicated MSEA should have done with
respect to impact bargaining.) The parties did so here. We find that the
State's refusal to bargain the modification in pay dates violates 26
M.R.S.A.  979-C(1)(E) (1988).

     The State's suggestion, based on State of Maine, that violation of
Article 28 invokes the parties' grievance procedure and not Board action
also fails. SELRA provides that the Board's power to prevent prohibited
acts "shall not be affected by any other means of adjustment or prevention
that has been or may be established by agreement, law or otherwise."
26 M.R.S.A.  979-H(1) (1988). Where a complainant has alleged violations
of SELRA and not simply contract violations, the Board is authorized to
		    
				   -21-

interpret contract provisions in Order to determine whether a violation of
SELRA has occurred. State of Maine, supra at 1230. In State of Maine, the
Court pointed to the grievance procedure as MSEA's only remedy because it
had found that the contract violation did not constitute a failure to
bargain under SELRA. That is not the case here. In the matter before us
we find that such a violation occurred, because AFSCME did not waive its
right to bargain over the modification of pay dates.

     The State's grievance argument is unpersuasive for a second reason.
In interpreting a provision parallel to section 979-H(1) in the collective
bargaining statute that covers municipal employees, the Board has stated:

     A plain reading of this section [26 M.R.S.A.  968(5)(A)l of the
     Act is that, when a single action or occurrence constitutes a
     prohibited practice and also is a violation of the collective
     bargaining agreement, the Board is empowered to rectify the
     situation, despite the fact that a contractual remedy may exist
     therefor. In instances where the aggrieved party has sought
     redress through both the Board's prohibited practices procedure
     and through the contractual grievance mechanism, the Board will,
     in appropriate circumstances, defer to the arbitral process while
     retaining jurisdiction over the prohibited practices complaint
     "for the purpose of taking appropriate action should further pro-
     ceedings be required." [Citation omitted.]

Coulombe v. City of South Portland, No. 86-11, slip op. at 9-10, 9 NPER
ME-18008 (Dec. 29, 1986). The Board's Rules and Procedures provide respon-
dents in prohibited practice cases with the opportunity to request deferral
to any applicable grievance procedure (Rules 4.05, 4.07). In the matter
before us, the State chose not to avail itself of that opportunity.
     
     Were this Board to find, using the Law Court's analysis in State of
Maine, that AFSCME had waived its right to bargain over the modification
in pay dates, we would nevertheless find that the State had violated SELRA.
A waiver of the right to mid-term bargaining, through a zipper clause or
otherwise, does not give parties carte blanche to unilaterally change the
terms of the agreement they have negotiated. Such unilateral changes, if
serious enough, may constitute interference, restraint or coercion
separate and apart from any violation in connection with the duty to
bargain.
     
     At what point in time employees are paid for the work they perform is
understandably of major concern to them. The fact that the Governor is in
		   
				   -22-

the process of withholding what will eventually be a full week's pay until
employees leave State service is no small matter, particularly for employ-
ees at the lower pay ranges. Some employees will not see that week's pay
for 20 years. Accordingly, we find that the State's unilateral modifica-
tion in pay dates, in violation of the statute that sets pay dates and the
parties' collective bargaining agreement, constitutes interference,
restraint and coercion and therefore violates section 979-C(1)(A) of
SELRA. 26 M.R.S.A.  979-C(1)(A) (1988).
     
     In order to effectuate the policies of SELRA, we will order the
Respondents to cease and desist from further implementing the pay date
modification plan with respect to members of the Institutional Services
unit, and to reinstitute the schedule of pay dates that existed prior to
implementation of the new schedule. For Cycle A employees, the next
three pay dates under the new schedule are June 3, June 17 and July 1,
1991. For Cycle B employees they are June 10, June 24 and July 8, 1991.
In order to give the State a reasonable period of time to reinstitute the
original schedule, we will order that Cycle A employees be paid on June 3,
June 17, June 26 and biweekly thereafter. Cycle B employees will be paid
on June 10, June 19 and biweekly thereafter.
     
     We will also order Respondents to sign, date and post, within 7 calen-
dar days of the date of issuance of this decision and order, at all loca-
tions where notices to members of the ISU are customarily posted, and
at times when such employees customarily work at those places, copies of
the attached "Notice." The Notice shall remain posted for 30 calendar
days, and the State shall notify the Executive Director, in writing, within
7 calendar days after posting of the Notice, of the steps that have been
taken to comply with our order.

Dependents' health insurance premiums (FY92)

     In his biennium budget, the Governor has proposed that for the last
year of the current agreement, the State's contribution toward dependents'
health insurance premiums be reduced from 60% to 50%. AFSCME's position
that the proposed reduction violates the current agreement is not
supportable.

				   -23-

     In order to reduce health care costs, the State decided that it would
like to offer employees a less expensive alternative to the Blue Cross/
Blue Shield plan that it has traditionally offered. Article 23 of the ISU
agreement reflects the agreement of the parties that the State Employee
Health Commission would offer at least two health plan options by
July 1, 1990, 10 months after the agreement was signed.

     During negotiations for the current agreement, in order to get the
unions representing State employees to agree to let the State offer one or
more alternatives to BC/BS, the State offered a "sweetener" -- it offered
to increase its contribution toward dependents' insurance premiums under the
traditional plan (BC/BS) from 50% to 60%. Although it wasn't mentioned in
connection with negotiations, the State intended that once the second
option was in place, it would reduce its contribution under the traditional
plan in order to give employees an incentive to switch to the new plan.

     For some inexplicable reason, the parties did not incorporate the
"sweetener" -- the agreement to pay 60% under the traditional plan --
into Article 23, although they both admit that such an agreement was made.
Article 23 is silent not only on the State's contribution for the first
year of the contract, before the new plan was scheduled to be in place;
it is also silent on what the State's contribution would be under the
traditional plan once the alternative to that plan was in place. (Article
23 specifies that the State's contribution would be no less than 60% for
the new option.)

     Even more inexplicably, the parties did not even discuss, let alone
specify in the contract, what would happen if an alternative to BC/BS could
not be made available by July 1, 1990, as planned. Unfortunately, that is
precisely what occurred. According to a witness for the State, when the
State realized, on two successive occasions, that it would not be able to
have an alternative plan in place, it agreed to continue its 60% contri-
bution under the traditional plan (BC/BS) until July 1, 1991.

     AFSCME argues that since it was not responsible for the Health Care
Commission's failure to put an alternative plan in place, the State should
not now be able to reduce its contribution to dependents' health insurance
premiums back to the 50% that was bargained under the previous contract
between the parties. The State argues that the current agreement permits

				   -24-

it to make the change. We agree with the State.

     From the testimony concerning this issue at hearing, one thing is
clear: there was no meeting of the minds on the issue of what the State's
contribution would be under the traditional plan after July 1, 1990,
whether or not an alternative plan had been put in place as scheduled. In
the absence of a zipper clause, parties under these circumstances would be
required to go back to the bargaining table and negotiate the State's
contribution for the last year of the contract, since payment of depen-
dents' health insurance premiums is a mandatory subject. Since the current
agreement contains a zipper clause under which the parties "shall not be
obligated to bargain collectively with respect to any subject matter
referred to or not referred to, covered or not covered in this Agreement,"
no bargaining is required. Accordingly, this allegation will be dismissed.

Violation of the seniority provisions of the contract

     AFSCME alleges that the State's proposal in the biennium budget to lay
employees off for 20 days during the last year of the current agreement
violates the seniority provisions of that agreement and therefore consti-
tutes a refusal to bargain. The State responds that the contract permits
the layoffs; that the controversy is not ripe; and that AFSCME has waived
its right to bargain the issue of layoffs.6  We will address the issue of
ripeness first.

     We are not persuaded by the State's argument that since the layoffs in
the Governor's budget have not yet been approved by the Legislature, the
allegation must be dismissed for lack of ripeness. First, the Governor has
done all he can do to see that the layoffs occur, and it is the Governor
who is ultimately responsible to see that the State abides by the contract.
26 M.R.S.A.  979-A(5) (1988). There is no doubt in our minds that if the
Legislature approves the deappropriation, the Governor will implement the
________________________

     60riginally AFSCME's allegation regarding seniority was made in con-
nection with its allegation that the Governor had failed to advocate
funding for the last year of the contract, as he is required to do by
SELRA. Since AFSCME has withdrawn that aspect of its complaint, the Board
must look at the alleged violation of the seniority provisions as an alle-
gation of unilateral change.

				   -25-

layoffs in some manner. In addition, requiring AFSCME to come back later,
after the Legislature approves the budget, does a service to no one. The
Legislature, in deciding whether or not to approve the $20,000,000
deappropriation in its current form (that is, to be saved through the 20
days of layoffs for each employee), would not have the benefit of knowing
whether implementation of the Governor's proposal will violate the ISU
collective bargaining agreement. It should have that information before it
makes a decision. We will now address the second aspect of the State's
ripeness argument -- the fact that the layoffs have not been implemented --
in the context of the allegation itself.

     Article 43 states in part:

	  Layoffs and recalls to work for a period of four (4) work-
     days or less shall be deemed temporary and shall not be subject
     to the provisions of this Article.

     Layoffs

	  In cases of layoffs and demotions in lieu of layoff, for
     periods of more than four (4) workdays, the procedure shall be
     as follows:
				 . . .

That article then goes on to provide a detailed seniority system that
includes the right to "bump" less senior employees in the same organiza-
tional unit in any occupationally related job classification that the
more senior employee is able to perform without additional training.
     
     The State argues that because Article 29, Management Rights, permits
the State "to make temporary layoffs at its discretion," and AFSCME has
presented no evidence that the temporary layoffs will be implemented in a
manner which would violate the seniority provisions of the contract, no
violation of the contract has occurred. We agree.
     
     The management rights article places no limit on either the number of
temporary layoffs that the State may implement, or on the number of employ-
ees that may be affected by such a layoff. Consequently, if his proposal
for 20 days of layoffs for each employee is implemented in such a way that
no ISU employee is laid off for more than four days in a row, the Governor
may implement his plan without violating the seniority provisions of the

				   -26-

current agreement. We are under no illusion that the parties contemplated
such a mass layoff when they negotiated the management rights article and
the seniority provisions. However, where the contract is silent, there is
nothing for this Board to interpret, and the intentions of the parties are
not relevant to our consideration of this allegation. Accordingly, we
will dismiss this allegation of the complaint, without prejudice to
AFSCME's right to return to this Board should the layoffs be implemented in
in a manner, as indicated in this decision, that would violate the
seniority provisions of the contract.

				   ORDER

     On the basis of the foregoing stipulations, findings of fact and
discussion, and by virtue of and pursuant to the powers granted to the
Maine Labor Relations Board by the provisions of 26 M.R.S.A.  979-H
(1988), it is hereby ORDERED:

     1.  That the Respondents and their representatives and agents shall:

	 a.  Cease and desist from refusing to bargain with members of the
	     Institutional Services bargaining unit by failing to maintain
	     the statutorily provided benefit of payment of wages on a
	     biweekly basis.

	 b.  Cease and desist from interfering, restraining and coercing
	     members of the Institutional Services bargaining unit in the
	     exercise of their collective bargaining rights by failing, as
	     required by Article 28 of the 1989-92 collective bargaining
	     agreement, to maintain the statutorily provided benefit of
	     payment of wages on a biweekly basis.

	 c.  Cease and desist from further implementing the pay date
	     modification plan with respect to members of the Institutional
	     Services bargaining unit.

	 d.  Take the following affirmative actions that are necessary to
	     effectuate the policies of SELRA:

	     i.   Reinstitute the schedule of pay dates for members of the
		  Institutional Services bargaining unit that existed prior
		  to implementation of the new schedule. Cycle A employees
		  shall be paid on June 3, June 17, and June 26, 1991, and
		  biweekly thereafter. Cycle B employees shall be paid on
		  June 10 and June 19, 1991, and biweekly thereafter.

	     ii.  Sign, date and post, within 7 calendar days of the date of
		  issuance of this decision and order, at all locations

				   -27-

		  where notices to members of the Institutional Services
		  bargaining unit are customarily posted, and at times when
		  such employees customarily perform work at those places,
		  copies of the attached "Notice." The Notice shall remain
		  posted for 30 days.

	     iii. Take such reasonable steps as may be necessary to ensure
		  that said posted notices are not altered, defaced, or
		  covered while they are posted pursuant to this Order.

	     iv.  Notify the Executive Director, in writing, within 7
		  calendar days of the posting of the Notice, of the steps
		  that have been taken to comply with the Board's Order.

     2.  That allegations regarding the Governor's fiscal year 1993 budget
proposals, the proposal for 20 days of layoffs in fiscal year 1992, and the
proposed reduction in the State's contribution toward dependents' health
insurance coverage for fiscal year 1992, from 60% to 50%, are dismissed.

Dated at Augusta, Maine, this 31st day of May, 1991.

				       MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right, pursuant to 26         /s/________________________
M.R.S.A.  979-H(7) (1988), to         Peter T. Dawson
seek review of this Decision           Chair
and Order by the Superior Court.
To initiate such a review an
appealing party must file a            /s/________________________
complaint with the Superior            Howard Reiche, Jr.
Court within fifteen (15) days         Employer Representative
of the date of receipt hereof,
and otherwise comply with the
requirements of Rule 80C of the
Maine Rules of Civil Procedure.

Employee Representative George W. Lambertson filed a separate opinion,
dissenting in part.

				  OPINION

     I agree with the results reached by my colleagues on all allegations
except one. I believe that the Governor's proposal for 20 days of layoffs
for all employees in the Institutional Services bargaining unit in fiscal
year 1992 violates the seniority provisions of the current agreement and

				   -28-

constitutes interference, restraint and coercion.
     
     Article 43 of the collective bargaining agreement defines temporary
layoffs as "layoffs and recalls to work for a period of four (4) workdays
or less." No doubt it is the Governor's intention, if the Legislature
approves his layoff proposal, to schedule (or allow employees to schedule)
the layoffs so that employees are not laid off for any period of five
consecutive days. While such a plan would on its face appear not to
violate the seniority provisions, I believe it would fly in the face of
the intent of the parties when the management rights article and the
seniority provisions were negotiated. By the State's logic, it is entitled
not only to implement the layoffs proposed in the budget, but could if it
desired, other than for essential employees, turn State government into a
one-day-a-week operation (one day on, four days off), in spite of the fact
that Article 25, Hours of Work, specifies that "[t]he basic workweek shall
be forty (40) hours."

     Because the Legislature is the keeper of the purse strings, SELRA sets
up a procedure whereby the the parties negotiate a contract and the
Governor is required to submit the cost items of that contract to the
Legislature for approval. If cost items are not approved, the parties go
back to the table for further negotiations. However, the Legislature does
not have authority to change the noneconomic terms of the contract -- the
parties are bound by what they negotiate.
     
     In the matter before us, the 20 days of layoffs are not being submitted
as a cost item in connection with the contract. They are being submitted
as a cost-cutting measure. While the Governor has every right, and in fact
a responsibility, to propose a balanced budget, he has the obligation,
under SELRA, to abide by the noneconomic terms of the contract that he
negotiated, including the seniority provisions. In proposing 20 days of
layoffs for all employees, rather than permanent layoffs for many fewer
employees, he has abrogated that responsibility. I cannot condone manipu-
lation of contract provisions that AFSCME negotiated in good faith, simply
so that the Governor can spread the pain inherent in the budget cuts that
he is contemplating. While the desire to do so is understandable, the
State bargained a contract that it should have to live with unless it nego-
		    
				   -29-

tiates with AFSCME to do otherwise.

     Having found that the contract has been violated, I will address the
State's argument that AFSCME has waived its right to bargain on any uni-
lateral change, including violation of the seniority provisions of the
contract. I agree that by the reasoning of the Law Court in State of
Maine, by which the Board is bound, AFSCME has given up its right to
bargain changes in the provisions of the contract by agreeing to Article
17, the so-called zipper clause. I hasten to point out, however, that the
State too has waived that right, and has no authority to change the terms
and conditions of the contract unilaterally. (The State argues in its brief
that because AFSCME has waived its right to bargain, "the Governor's propo-
sal for layoffs during fiscal year 1992 is not an unlawful unilateral
change." I assume the State to mean not that it can violate the terms of
the contract at will, but rather that AFSCME must utilize the parties'
grievance procedure to cure the alleged contract violation.)

     While this is the type of violation that could be addressed through the
grievance procedure, I note, as the Board has noted elsewhere in this deci-
sion and order, that the State did not avail itself of the opportunity to
request deferral to the grievance procedure at the time the complaint was
filed. I also point out, as pointed out previously, that the Board has the
authority to interpret contract provisions to determine whether a violation
of SELRA has occurred. Finally, refusal to hear the matter in deference to
arbitration would present the same problems in connection with the legisla-
tive process as would be presented had my colleagues found that the contro-
versy was not ripe.

     I have looked at this matter carefully, and would find, as the Board
found with respect to the modification of pay dates, that because of its
seriousness -- that is, because of the major impact that it will have on
employees in the ISU -- 20 days of layoffs for members of the Institutional
Services bargaining unit rises to the level of interference, restraint and

				   -30-

coercion, independent of any duty to bargain that may or may not exist.
Accordingly, I would find that the State has violated 26 M.R.S.A.
 979-C(1)(A) (1988).
	  
Dated at Augusta, Maine, this 31st day of May, 1991.

					     MAINE LABOR RELATIONS BOARD



					     /s/________________________
					     George W. Lambertson
					     Employee Representative
							  
				   -31-

			      STATE OF MAINE
			MAINE LABOR RELATIONS BOARD
			   Augusta, Maine 04333

				  NOTICE
				  
   NOTICE TO ALL EMPLOYEES IN THE INSTITUTIONAL SERVICES BARGAINING UNIT

				Pursuant to
			a Decision and Order of the
			MAINE LABOR RELATIONS BOARD
	      and in order to effectuate the policies of the
		    STATE EMPLOYEES LABOR RELATIONS ACT
		      you are hereby notified that:
		      
    1.  Governor McKernan and the State of Maine will cease and desist
	from failing to maintain the statutorily provided benefit of
	payment of wages on a biweekly basis.

    2.  Governor McKernan and the State of Maine will cease and desist
	from further implementing the pay date modification plan.

    3.  Governor McKernan and the State of Maine will reinstitute the
	schedule of pay dates that existed prior to implementation of
	the new schedule. Cycle A employees will be paid on June 3,
	June 17 and June 26, 1991, and biweekly thereafter. Cycle B
	employees will be paid on June 10 and June 19, 1991, and
	biweekly thereafter.

    4.  Governor McKernan and the State of Maine will, within seven
	calendar days of the posting of this Notice, notify the Maine
	Labor Relations Board, in writing, at its offices in Augusta,
	Maine, of the steps that have been taken to comply with the
	Board's Order.
     
					STATE OF MAINE


    Dated:                              ____________________________
					Kenneth A. Walo, Director
					Bureau of Employee Relations

If employees have 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.



STATE OF MAINE                                  MAINE LABOR RELATIONS BOARD
						Case No. 91-18
						Issued:  June 5, 1991


_______________________________________
				       )
AFSCME COUNCIL 93,                     )
				       )
			 Complainant,  )
				       )
	v.                             )         DECISION AND ORDER
				       )         ON MOTION FOR STAY
GOVERNOR McKERNAN and STATE OF MAINE,  )       OF FINAL AGENCY ACTION
				       )
			 Respondents.  )
_______________________________________)


     On May 31, 1991, the Maine Labor Relations Board ("Board") issued a
Decision and Order in Case No. 91-18. In its decision, the Board found that
the Respondents had violated 26 M.R.S.A.  979-C(1)(A) and (E) (1988), and
ordered them to cease and desist from implementing the State's pay date
modification plan with respect to members of the Institutional Services
bargaining unit ("ISU"). It further ordered Respondents to reinstate the
schedule of pay dates that had existed prior to implementation of the new
schedule, with the original schedule to be reinstated as of June 26, 1991,
for Cycle A employees and June 19, 1991, for Cycle B employees.

     On June 4, 1991, pursuant to Rule 8OC(b) of the Maine Rules of Civil
Procedure, 5 M.R.S.A.  11004 (1989) and 26 M.R.S.A.  979-H(7) (1988), the
State of Maine ("State") filed a Motion for Stay on Final Agency Action and a
Memorandum in Support of Respondent's Motion for Stay. At the same time,
the State served on the Board a copy of its petition for review of the
Board's order pursuant to Rule 80C of the Maine Rules of Civil Procedure,
which petition was filed in Superior Court on June 3rd.

     The Board convened an expedited hearing on the State's motion for
stay on June 5, 1991. Chair Peter T. Dawson presided at the hearing,
accompanied by Howard Reiche, Jr., Employer Representative, and George W.
Lambertson, Employee Representative. Julie Armstrong, Esquire, represented
	 
				   -1-

the State, and Stephen P. Sunenblick, Esquire, represented AFSCME. The par-
ties were afforded the opportunity to present evidence to make oral argu-
ment. Neither party requested the opportunity to file a written brief, and
no request for briefs was made by the Board.
		
				JURISDICTION

     The jurisdiction of the Board to hear prohibited practice cases, and
to render decisions and orders pursuant thereto, lies in 26 M.R.S.A.
 979-A(5) (1988).

				 DISCUSSION

     In its motion for stay, the State asserts that compliance with the
Board's order would result in substantial and irreparable harm to the
State; that there is a strong likelihood that the State will prevail on the
merits in its 80C appeal; and that no substantial harm to AFSCME, to the
Board or to the general public will result if the stay is granted. AFSCME
responds that the Law court has ruled that the Administrative Procedure Act
does not apply to appeals of Board decisions (Sanford Highway Unit
v. Town of Sanford, 411 A.2d 1010 (Me. 1980)); that section 979-H(7) (1988)
of the State Employees Labor Relations Act ("SELRA") confers the authority
to grant a stay on Superior Court;1 and therefore that the Board has no
authority to grant the stay requested by the State.

     In an affidavit accompanying the State's motion and supporting memoran-
dum, the Controller for the State asserts that 1) implementing the order
with respect to members of the ISU will cost approximately $1.4 million;
2) implementation of the order for employees in the ISU, without imple-
____________________________
			    
     1Section 979-H(7) of SELRA states, in part:

      Pending review and upon application of any party in interest, the
      Court may grant such temporary relief or restraining order and
      may impose such terms and conditions as it deems just and proper;
      provided that the board's decision and order shall not be stayed,
      except where it is clearly shown to the satisfaction of the court
      that substantial and irreparable injury will be sustained or that
      there is substantial risk of danger to the public health or safety.

				   -2-

menting it for other State employees as well, may be impossible within the
time frame established in the order; 3) implementation for all employees
will cost approximately $5.3 million; 4) the $5.3 million savings has been
deappropriated, and only the Legislature can reappropiate it; 5) the State
is constitutionally required to have a balanced budget; and 6) there is no
practical way for the State to raise $5.3 million by June 30, 1991, to
implement the Board's order.
     
     Given both the appellate procedures spelled out in SELRA and the
Sanford decision, it is not clear that the Board has the authority to
issue a stay pursuant to the Administrative Procedure Act, 5 M.R.S.A.
 11004. We need not reach that decision, however, because by agreement of
the parties, the Board will modify its May 31st order to address the diffi-
culties in complying with the order that the State has raised in its motion.
Accordingly, we will modify our order to require reinstatement of the
original schedule of pay dates for members of the ISU, beginning on July
24, 1991, rather than on June 26, 1991, for Cycle A employees, and on July
17, 1991, rather than June 19, 1991, for Cycle B employees. The remainder
of the May 31st order will remain in effect.
		    
				  ORDER

     On the basis of the record at hearing and the agreement of the parties,
and pursuant to and by virtue of the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A.  979-H (1988), it is
hereby ORDERED:

     1.  That paragraph 1(d)(i) of the order issued on May 31, 1991, in
Case No. 91-18 is modified as follows:


	  i. Reinstitute the schedule of pay dates for members of the
	     Institutional Services bargaining unit that existed prior
	     to implementation of the new schedule. Cycle A
	     employees shall be paid on June 3, June 17, July 1,
	     July 16 and July 24, 1991, and biweekly thereafter.
	     Cycle B employees shall be paid on June 10, June 24,
	     July 8 and July 17, 1991, and biweekly thereafter.
	     
				   -3-

     2.  That the attached, amended Notice will be substituted for the Notice
attached to the order of May 31, 1991, and posted in accordance with
paragraph 1(d)(ii) of that order.

     3.  That the remainder of the May 31st order will remain in effect.
	 
Dated at Augusta, Maine, this 5th day of June, 1991.

				       MAINE LABOR RELATIONS BOARD



The parties are hereby advised
of their right, pursuant to 26         /s/________________________
M.R.S.A.  979-H(7) (1988), to         Peter T. Dawson
seek review of this Decision           Chair
and Order by the Superior Court.
To initiate such a review an
appealing party must file a            /s/________________________
complaint with the Superior            Howard Reiche, Jr.
Court within fifteen (15) days         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
				      
				   -4-

			      STATE OF MAINE
			MAINE LABOR RELATIONS BOARD
			   Augusta, Maine 04333

				  NOTICE
__________________________________________________________________________

									  
  NOTICE TO ALL EMPLOYEES IN THE INSTITUTIONAL SERVICES BARGAINING UNIT

			       Pursuant to
		      a Decision and Order of the
		      MAINE LABOR RELATIONS BOARD
	    and in order to effectuate the policies of the
		  STATE EMPLOYEES LABOR RELATIONS ACT
		     you are hereby notified that:
		    
  1.  Governor McKernan and the State of Maine will cease and desist
      from failing to maintain the statutorily provided benefit of
      payment of wages on a biweekly basis.

  2.  Governor McKernan and the State of Maine will cease and desist
      from further implementing the pay date modification plan.

  3.  Governor McKernan and the State of Maine will reinstitute the
      schedule of pay dates that existed prior to implementation of
      the new schedule. Cycle A employees will be paid on June 3,
      June 17, July 1, July 16, and July 24, 1991, and biweekly
      thereafter. Cycle B employees will be paid on June 10,
      June 24, July 8, and July 17, 1991, and biweekly thereafter.

  4.  Governor McKernan and the State of Maine will, within seven
      calendar days of the posting of this Notice, notify the Maine
      Labor Relations Board, in writing, at its offices in Augusta,
      Maine, of the steps that have been taken to comply with the
      Board's Order.
      
					STATE OF MAINE


  Dated:                                ____________________________
					Kenneth A. Walo, Director
					Bureau of Employee Relations


If employees have 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.