STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 92-31
Issued: August 27, 1992
_____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION )
)
Complainant, )
v. ) DECISION AND ORDER
)
BUREAU OF EMPLOYEE RELATIONS, )
)
Respondent. )
_____________________________________)
On March 5, 1992, the Maine State Employees Association (MSEA) filed a
prohibited practice complaint with the Maine Labor Relations Board (Board)
alleging that the Bureau of Employee Relations (BOER) has violated the
State Employees Labor Relations Act (SELRA) by refusing to bargain collec-
tively as required by 26 M.R.S.A. 979-D (1988 & Supp. 1991). More spe-
cifically, the MSEA alleges that after the parties' discussions concerning
the future, if any, of an agreed-to clerical transfer pilot project became
deadlocked the BOER refused to submit to fact finding requested unilater-
ally by the MSEA. The MSEA alleges that the BOER was obliged by specific
contractual reservation to negotiate mid-term respecting clerical posting
and certification procedures and was required to amend the parties'
Administrative Services contract by appending any mutually-agreed terms
thereto, via a side letter of agreement.
The BOER's Response, filed March 26, 1992, answers that "[i]n Article
13, entitled CONCLUSION OF NEGOTIATIONS, of the 1989-1992 Administrative
Services Collective Bargaining Agreement the MSEA has waived its rights to
'compel negotiations on . . . matters that are specifically addressed in
[the parties'] Agreement'" and that "[t]he posting and certification proce-
dures for employees in the Administrative Services Bargaining [Unit] are
specifically addressed in Article 56, SENIORITY, Section G, Filling of
Competitive Vacancies." Neither party requested attorney's fees.
On Wednesday, April 29, 1992, Chair Peter T. Dawson conducted a pre-
hearing conference in this matter. The May 18, 1992, Prehearing Conference
- 1 -
Memorandum and Order issued by Chair Dawson is incorporated in and made a
part of this Decision and Order.
On June 9, 1992, the Board, consisting of Chair Dawson, Employee
Representative George W. Lambertson and Alternate Employer Representative
Jim A. McGregor, conducted a full evidentiary hearing during which the par-
ties were afforded the opportunity to present evidence and argument
respecting the material issues in the cause. The MSEA was represented at
hearing by Attorney John N. Lemieux and the BOER by Attorney Leslie D.
Bloom. The MSEA elicited testimony from Clerk III and labor/management
clerical posting and certification study subcommittee (subcommittee) member
Carol Fleury and from MSEA Assistant Negotiator/MSEA subcommittee represen-
tative Chester Hillier. The BOER elicited testimony from Labor Relations
Specialist Alicia Kellogg, Labor Relations Specialist Linda Lane and Merit
System Coordinator Laura Boyett.
The transcript of the proceedings was completed on June 15, 1992.
Both parties submitted post-hearing briefs and reply briefs, the last of
which was received on July 2, 1992. The Board deliberated the case on
Friday, July 10, 1992.
JURISDICTION
The Board has jurisdiction to hear evidence and to determine the
issues in this case and to render a decision and order pursuant to
26 M.R.S.A. 979-H (1988 & Supp. 1991). Neither party has objected to the
Board's jurisdiction over this matter. The Bureau of Employee Relations is
a public employer within the meaning of 26 M.R.S.A. 979-A(5) (1988) and
the MSEA is a bargaining agent within the meaning of 26 M.R.S.A. 979-A(1)
(1988).
POSITIONS OF THE PARTIES
The MSEA contends that language in the parties' 1987-89 agreements'
LABOR MANAGEMENT COMMITTEES article, Article 34, for the first time in the
parties' negotiations history, enabled the parties to amend their contract
to incorporate agreements reached by a labor/management subcommittee spe-
cifically established to study and arrive at beneficial changes to existing
- 2 -
clerical posting and certification procedures. In effect, the MSEA contends
that the contract expressly exempts clerical posting and certification pro-
cedures from the contract's CONCLUSION OF NEGOTIATIONS or "zipper clause"
provision allowing negotiation of such matters during the contract's term.
The MSEA also contends that negotiation of clerical posting and certifica-
tion procedures was delegated to a subcommittee so as not to delay main
contract closure pending negotiation over extensive terms in this compli-
cated area. Accordingly, the MSEA contends that the Board's impasse reso-
lution procedures, including fact finding, were accessible for the purpose
of helping the parties break the deadlock in their "negotiations," and that
the BOER's refusal to submit to fact finding evinces bad faith bargaining.
The BOER, on the other hand, contends that although negotiations over
clerical posting and certification procedures were "zipped" up, the
contract's terms permitted the contract to be amended to incorporate any
mutually-ratified agreement reached through the labor/management committee
process outside the realm of collective bargaining negotiations. The BOER
contends that the pilot project was, by its own terms, time-limited, that
according to the contract's terms, either party may reject the recommen-
datory agreements of the subcommittee and that since the labor/management
process is not collective bargaining, participation in the Board's impasse-
resolution procedures is not mandatory.
FINDINGS OF FACT
The Maine State Employees Association, Local 1989 SEIU (MSEA), is the
Board-certified collective bargaining agent of a unit of Administrative
Services employees of the State of Maine. The clerical employees whose
posting and certification procedures are involved in the instant case are
represented by the MSEA for the purposes of collective bargaining in that
collective bargaining unit. The Bureau of Employee Relations (BOER) of the
Department of Administrative and Financial Services, State of Maine, is the
public employer of these employees within the meaning of 26 M.R.S.A.
979-A(5) (1988). The BOER, as the Governor's designee, conducts collec-
tive bargaining for the State of Maine with the MSEA concerning the above-
mentioned clerical employees.
- 3 -
The MSEA and the State were parties to a contract or collective
bargaining agreement covering employees in the Administrative Services
Bargaining Unit effective October 22, 1987, through June 30, 1989.
Article 34 of that agreement, entitled "LABOR/MANAGEMENT COMMITTEES," pro-
vides in pertinent part:
A. Statewide
The Labor/Management Committee established by the previous
contracts shall continue. The Committee shall have the respon-
sibility for studying and developing recommendations for flex
time, the four-day workweek, day-care programs, professional
liability insurance, and the filling of vacancies in the com-
petitive service. The Labor/Management Committee shall study
current educational leave policies and procedures. The Committee
shall report its findings to the Policy Review Board authorized
by 5 MRSA 38, Chapter 372, Article II sub-7041.
A sub-committee will be created for the purpose of studying
clerical posting and certification procedures with the MSEA team
represented by members of the clerical series. Any agreement
arrived at jointly by the sub-committee and approved by the par-
ties shall be made effective via a side letter of agreement
appended to the Administrative Services contract.
The Committee shall meet at least monthly until completion of
its responsibilities. Committee members may participate in the
work of the Committee during working hours without loss of pay.
Article 13 of that contract, entitled "CONCLUSION OF NEGOTIATIONS,"
provides:
A. The State and MSEA agree that this Agreement is the entire
Agreement, terminates all prior Agreements or understandings and
concludes all collective negotiations during its term. Neither
party will during the term of this Agreement seek to unilaterally
modify its terms through legislation or other means which may be
available to them.
B. Each party agrees that it shall not attempt to compel nego-
tiations during the term of this Agreement on matters that could
have been raised during the negotiations that preceded this
Agreement, matters that were raised during the negotiations that
preceded this Agreement or matters that are specifically
addressed in this Agreement.
Article 53, Section G, of that contract, entitled "Filling of Competitive
Vacancies," provides:
G. Filling of Competitive Vacancies
- 4 -
Current procedures for filling of vacancies in the competitive
service shall be continued during the term of this Agreement.
The Labor/Management Committee established elsewhere in this
Agreement shall have as one of its responsibilities the study of
procedures for the filling of competitive positions and the
development of recommendations concerning possible modifications.
The Committee shall report the results of its study and its
recommendations to the parties at least ninety (90) days prior to
the date of termination of this Agreement.
The following principles, however, shall be followed in the
filling of competitive vacancies:
(a) Notice of all vacancies in competitive jobs shall be
posted in the applicable department, agency, organizational unit
or unit division for at least ten (10) workdays.
(b) All employees certified to an appointing authority shall
be offered the opportunity of an interview.
(c) Each certified employee shall be notified by the
appointing authority of his/her selection or non-selection.
(d) Length of service representing satisfactory service to the
State is important for any position and will be given appropriate
consideration by the appointing authority along with the qualifi-
cations for the position.
The State certification procedures shall provide for concurrent
certification of eligible employees instead of serial certifica-
tion for the duration of this Agreement. Employees accepting a
job offer must do so within five (5) business days from that job
offer. An employee shall be entitled to refuse four (4) appoint-
ments from a register before being removed from the register.
Employees in a department or agency who are in the same classi-
fication or on a register for that classification who bid for
transfer into a vacancy in the department or agency shall be
offered the opportunity to interview for such vacancy.
Upon promotion an employee shall be entitled to return to
his/her former position voluntarily within thirty (30) days of
promotion; otherwise voluntary demotion rules will apply. An
employee at any time during the probationary period or any exten-
sion thereof failing to attain permanent status in a promotional
position shall be entitled to return to his/her former position.
Any employee filling a vacancy created by a promotion shall be
likewise entitled to return to his/her former position when a
promoted employee returns to his/her former position in accord-
ance with the above provisions.
In the final days of negotiations for the parties' 1987-89 agreements,
a subgroup broke off from the parties' "big table" negotiations to deal
- 5 -
with certain unspecified clerical issues pertinent to only the Administra-
tive Services contract. The subgroup formulated the idea of the creation
of a labor/management subcommittee (subcommittee) to study clerical posting
and classification procedures to determine whether a better method for
clerical inter-agency transfers could be devised. The parties desired to
avoid "rash decisions" during negotiations about the complex and "delicate"
civil service system inasmuch as the complete impact elsewhere in the civil
service system of anticipated changes in procedures applicable to clericals
was not completely known. The subcommittee began meeting in February of
1988, established a goal, and then set about developing a process. On
January 6, 1989, the parties executed a tentative written agreement to
establish a one-year pilot project which detailed, on a trial basis,
transfer rights and procedures for certain clerical employees within an
area of Kennebec County.
The relevant portions of the "Tentative Agreement Between Maine State
Employees Association and the State of Maine" respecting the clerical
transfer pilot project are as follows:
The following represents the components of a pilot project for
clerical employees employed by the State of Maine. This project
is being implemented under the authority of Article 34 of the
Administrative Services Contract and shall serve to amend Article
56 Seniority, Section G, Filling of Competitive Vacancies, to the
extent and for the term as described below.
We agree to establish a pilot project for clerical employees in
classifications listed on the attached Addendum and employed in
Augusta, Gardiner, and Hallowell. This project will last for one
year from the date of implementation. (Date of implementation is
expected to be February 1 [date lined out], July 1, 1989 and is expected to con-
tinue until January 30 [date lined out], June 30, 1990, unless extended by mutual
agreement of the parties.) The Labor/Management Committee will
meet on an as-needed basis but no less than quarterly to monitor
and to evaluate the pilot project. The Labor/Management Committee
will also develop recommendations regarding the future of the pro-
ject beyond the one year.
(interlineation in original)
The MSEA submitted the terms of the agreement to the membership of the
Administrative Services bargaining unit for ratification in the manner
customarily used by the MSEA for contract ratifications.
- 6 -
The pilot project was implemented for one year on July 1, 1989, rather
than on January 1, 1989, as at first planned. After implementation, the
parties monitored, then evaluated, the procedures comprising the program.
The State suggested and the MSEA agreed to the conduct of a survey of
affected clericals. A questionnaire was sent out just prior to expiration
of the project. Information received from those questionnaires returned,
as well as feedback from department personnel officers and the merit system
coordinator, suggested to the State "that people really didn't understand
the process, [and that] they weren't really accessing the process the way
that it had been hoped that they would." Concerns about layoffs and a
freeze in hiring influenced the results of the evaluation, making it dif-
ficult to assess the actual success of the project. The State and MSEA
subsequently concluded negotiations for a successor collective bargaining
agreement effective September 5, 1989, through June 30, 1992, containing,
with one immaterial exception[fn]1, terms identical to those set forth above
respecting articles entitled "CONCLUSION OF NEGOTIATIONS," "FILLING OF
COMPETITIVE VACANCIES" and "LABOR/MANAGEMENT COMMITTEES." No mention was
made in the successor collective bargaining agreement of the pilot project
then in existence.
During the initial course of the project, the parties met on a quar-
terly basis. By the end of the one-year project, the parties were meeting
at least monthly. The program was continued just prior to its June 30th
expiration by the parties' mutual oral agreement, for approximately six
months. At the end of the monitoring period, the MSEA proposed that the
project be continued permanently but on a state-wide basis. The State
also desired that the program be continued on a state-wide basis but only
for one year. The MSEA was concerned with the practice of departmental
personnel officers asking for the inclusion of specific individuals when
requesting inter-agency transfer eligibility lists. Then, as now, the
current civil service rule allowed agencies to ask for additional names on
_________________________
1 The LABOR/MANAGEMENT COMMITTEE article in the successor contract
includes" "Catastrophic Leave Benefit Pool" as an additional subject for
both study and the development of recommendations by the Labor/Management
Committee.
- 7 -
a current certification by requesting the specific name of an individual
who had previously had his/her name placed on a transfer or demotion list.
The MSEA, on the other hand, desired the names on transfer lists to be
established by order of the making of requests for transfer.
The issue of fact finding was first raised by MSEA Subcommittee Chair
Hillier in the early spring of 1991. BOER Labor Specialist Lane informed
Hillier at that time that "in labor management situations we [do] not do
fact finding." Lane did not perceive the state of affairs to have stale-
mated. Further discussions occurred after that conversation.
On April 2, 1991, Ken Walo, Director of the BOER, wrote MSEA Assistant
Executive Director Roger Parlin urging him to reevaluate the MSEA's posi-
tion opposing departmental requests for the addition of specific names to
transfer lists. Walo praised the subcommittee's proposal for modifications,
which included a recommendation of statewide application. On June 27,
1991, after a subcommittee meeting conducted earlier that month, Lane met
with Boyett. They spoke with Hillier by speakerphone. As a result of that
conversation, a meeting was scheduled for August 19th, then postponed, and
eventually conducted on September 12, 1991. In the interim, the MSEA per-
ceived that there could be no resolution of the subcommittee's work without
the help of a third party.
The State's desire and the MSEA's opposition to the "picking" of indi-
vidual names to be sent out to agencies was the issue which stalemated
labor/management cooperation over changes in clerical posting and classifi-
cation procedures. On August 27, 1991, the MSEA filed a unilateral fact-
finding request, executed August 23, 1991. On September 5, 1991, Lane
responded to the Board Executive Director's letter notifying the BOER of
the MSEA's request for fact finding that Article 34, Section A, paragraph 2,
of the agreement "cannot be read to mandate collective bargaining or
agreement on the subject." Lane's letter also states that even if the
committee should:
reach agreement, since approval by both sides is required, either
party can veto an agreement by not approving it. This would
trigger no further obligation other than the possible obligation
of the subcommittee to meet.
- 8 -
In this particular case, an agreement was reached by the subcom-
mittee and approved by the parties. That agreement has now
expired by its own term. There is nothing in the Labor/Management
article which requires that any (additional) agreement be reached.
In the absence of any obligations to bargain collectively as that
term is commonly understood, the State is under no obligation to
agree to factfinding over any disagreements within the
Labor/Management Subcommittee. Therefore, the State cannot be
required to participate in the factfinding requested by MSEA.
There has since 1981 been no other contractual language in any of the
parties' agreements which allows the parties through labor/management
cooperation to reach a side letter of agreement to be appended to the
contract, in modification thereof. Other committees formed by contractual
provisions for the purpose of labor/management cooperation have yielded
only recommendations to the parties for their use in successor nego-
tiations.
DISCUSSION
Our inquiry in this matter is very limited. We have only undertaken
to decide whether, in light of the facts presented, the BOER has unlawfully
refused to participate in fact finding. There is no allegation in this
matter that the labor/management committee constitutes a "labor organiza-
tion" and that the BOER dominates or interferes with the formation or
administration of that labor organization or contributes support to it.[fn]2
After careful consideration of the evidence in this matter in light of
the arguments of the parties, we find that the BOER's refusal to submit to
_______________________
2 We note that the NLRB has heard oral argument and has entertained
briefing in the case of Electromation, Inc., No. 25-CA 19818 (NLRB ALJ
decision Apr. 5, 1990), respecting the lawfulness of using employee
involvement committees in a non-union setting. The issue of the use of
labor/management committees generally, has been the subject of extensive
analysis and critique. See, e.g., Datz, Employee Participation Programs:
Are They Lawful under the National Labor Relations Act, 8 The Lab. Law. 81
(1992); Herrenstadt, Why Some Unions Hestitate to Participate in Labor-
Management Cooperation Programs, 8 The Lab. Law. 71 (1992); Joy, A Perspective
on the Electromation Case From the U.S. Department of Labor, 43 Lab. L. J. 397
(1992); Lobel, Labor-Management Cooperation: A Critical View, 43 Lab. L. J.
281 (1992); Moberly, Labor-Management Committees in Public Employment,
43 Arb. J. 31 (1988); Special Project Note, Labor-Management Cooperation,
41 Vand. L. Rev. 537 (1988).
- 9 -
fact finding is not an unlawful refusal to bargain. As is more specifically
set forth below, our holding in this regard is based upon our finding that
the language in the parties' contract fails to obligate the BOER to nego-
tiate mid-term over clerical posting and classification procedures.
Collective bargaining is defined in the State Employees Labor Relations
Act to include the duty to participate in fact finding. 26 M.R.S.A.
979(D)(1)(D) (1988 & Supp. 1991). Accordingly, if BOER was obligated to
bargain mid-term with the MSEA over clerical posting and classification
procedures, and, if the MSEA's request for fact finding was properly made,
BOER's refusal to submit to requested fact finding would constitute a
refusal to bargain within the meaning of 26 M.R.S.A. 979(C)(1)(E) (1988).
We are required to interpret the provisions of the parties' contract to
determine whether BOER's refusal to submit to fact finding constitutes an
unlawful refusal to bargain. "This is so because section 979-D(1)(B) imposes
a duty to bargain 'provided the parties have not otherwise agreed in a
prior written contract.'" State v. MSEA, 499 A.2d 1228, 1230 (Me. 1985).
See MSEA v. School Committee of the City of Lewiston, No. 90-12, slip op.
at 15 (Me.L.R.B. Aug. 21, 1990).
Absent the language contained in Article 34, LABOR/MANAGEMENT
COMMITTEES, it would be clear both that the parties have provided for
posting and classification procedures generally, in Article 56, SENIORITY,
and that unilateral invocation of mid-term negotiation respecting the
provided-for procedures, absent special circumstances not present in the
instant case, would be precluded by the CONCLUSION OF NEGOTIATIONS or
"zipper clause" article, Article 13. It is therefore necessary to deter-
mine whether that portion of the LABOR/MANAGEMENT COMMITTEES article, which
creates a subcommittee to study clerical posting and classification proce-
dures has, as is advanced by the MSEA, expressly reserved the obligation to
negotiate over clerical posting and classification. We conclude that it
does not.[fn]3 Although the clause permits the contract to be amended so as to
________________________
3 We accord no probative value to the fact that the MSEA submitted the
recommended agreement to the same ratification procedure as is used for
contracts generally. Although it would not have alone been sufficient evi-
dence, there was no suggestion that differing ratification procedures exist
and that the method used is restricted solely to "negotiated" matters.
- 10 -
incorporate any mutually-approved recommended agreement, it neither
requires the submission of a recommended agreement to the parties nor obli-
gates the parties to do more than consider and ratify or reject any recom-
mended agreement presented to them. The language at issue merely reserves
to the parties the right to consider and mutually adopt any proposed
agreements submitted for their approval or rejection, by a subcommittee
mandated to study a specific subject and authorized to make mutually-agreed
recommendations thereon.
With regard to the parties' dealings concerning changes in clerical
posting and classification procedures, it seems that what began as a colle-
gial method of problem solving eventuated in a pattern of dealing
indistinguishable from the parties' customary collective bargaining nego-
tiations. However, that fact, even when viewed in light of the apparent
novelty of the contract provision at issue, is not sufficient to give rise
to an obligation to bargain. We do not find the provisions of the LABOR/
MANAGEMENT COMMITTEES article to be ambiguous on their face.
The parties are free to limit, by express terms, the time span within
which contractual provisions shall have effect. See Auburn School
Administrators Association, Local 67A, AFSA v. Auburn School Committee,
No. 91-19, slip op. at 22-23 (Me.L.R.B. Oct. 8, 1991). We conclude, in
light of the actual terms of the mutually-approved "tentative agreement,"
that the parties intended the pilot project to establish an experimental
procedural framework of limited scope and existence. Although the parties
did modify their contractual relationship by approving the subcommittee's
recommended pilot project, they did so in temporally explicit terms. The
tentative agreement clearly sets forth the "components of a 'pilot pro-
ject'" which "serve[s] to amend Article 56 SENIORITY, Section G, Filling of
Competitive Vacancies, to the extent and for the term . . . described."
The agreement goes on to state:
"[t]he project will last for one year from the date of implemen-
tation. (Date of implementation is expected to be July 1, 1989
and is expected to continue until June 1990, unless extended by
mutual agreement of the parties. . . . The Labor/Management
Committee will also develop recommendations regarding the future
of the project beyond the one year."
- 11 -
We find nothing in the terms of the side agreement which could be
construed to address the parties' negotiation obligation, if any, during
the post-project period. Having found that neither the contract's terms
nor the terms of the side agreement either create an obligation to bargain
or modify that obligation as it exists under the terms of the parties'
agreement, we find that the BOER was not required to submit to the
fact finding requested by the MSEA.
Finally, the instant case, although decided on other grounds, raises
the question of the timeliness of the MSEA's unilateral request for fact
finding,[fn]4 made in the absence of underlying mediation and/or a joint waiver
of mediation. The Board's Executive Director and the Board are each statu-
torily empowered to impose mediation procedures without request.
26 M.R.S.A. 979-D(2)(C) (1988). Additionally, the parties may forego
mediation by jointly either agreeing to call on the Board for fact finding
or agreeing to undergo "some other mutually-acceptable fact-finding
procedure." 26 M.R.S.A. 979-D(3) (1988). Moreover, because the likeli-
hood of the success of mediation is remote where neither party desires to
submit, we conclude that a unilateral request for fact finding which is not
responded to by a timely request for mediation services is sufficient to
invoke otherwise mandatory fact finding.[fn]5
Accordingly, while it is unnecessary for mediation to occur as a
prerequisite to the granting of a unilateral request for fact finding, we
conclude that the Executive Director is required to determine as a pre-
requisite to the granting of such a request, when mediation has not
occurred, whether he or the Board considers mediation necessary and whether
a reasonable period of time has passed such that the party who does not
join in the fact-finding request may be regarded as having waived mediation
procedures.
_______________________
4 Had we found the BOER obliged to bargain we would have been required
to determine whether the MSEA's fact-finding request was timely made.
5 It is reasonable to infer, since six months transpired between the
date of the refusal to submit to fact finding and the date of the filing of
the charge herein, that had it been obliged to bargain the BOER would have
waived any right to request mediation.
- 12 -
ORDER
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 979-H(3) (1988), it is hereby
ORDERED that the MSEA's March 5, 1992, Complaint be, and hereby is,
DISMISSED.
Dated at Augusta, Maine, this 27th day of August, 1992.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
The parties are advised of Peter T. Dawson
their riqht pursuant to Chair
26 M.R.S.A. 979-H(7)
(Supp. 1991) to seek review
of this decision and order
by the Kennebec County /s/_____________________________
Superior Court by filing a George W. Lambertson
complaint in accordance Employee Representative
with Rule 80C of the Maine
Rules of Civil Procedure,
within 15 days of the date
of this decision. /s/_____________________________
Jim A. McGregor
Alternate Employer Representative
- 13 -