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 -