STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-18
Issued: April 21, 1993
_______________________________________
)
LINCOLN FIRE FIGHTERS' ASSOCIATION )
LOCAL 3038, IAFF )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF LINCOLN )
)
Respondent. )
_______________________________________)
On December 28, 1992, the Lincoln Fire Fighters' Association
Local 3038, International Association of Fire Fighters, AFL-CIO-
CLC ("Association") filed a prohibited practice complaint with
the Maine Labor Relations Board ("Board") alleging that the Town
of Lincoln ("Town") unilaterally changed the "long, consistent
and mutually agreed to past practice" of contributing 9.1 percent
into a deferred compensation plan by limiting its contribution to
up to a 6 percent match of gross wages in 1 percent increments,
thereby violating section 964(1)(A) and (E) of the Municipal
Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A.
964(1)(A) and (E) (1988). In its response, the Town asserts
that the complaint is barred for failure to file the complaint
within the six-month period for the filing of a complaint under
the MPELRL, and otherwise denies the allegations.
On February 1, 1993, Board Chair Peter T. Dawson convened
the prehearing conference in this matter. His Prehearing
Memorandum and Order, dated February 4, 1993, is incorporated in
and made a part of this decision and order.
The evidentiary hearing in this matter was held on March 12,
1993. Chair Dawson presided over the hearing, accompanied by
Employer Representative Jim A. McGregor and Employee Repre-
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sentative George W. Lambertson. Mark Kamen represented the
Association, and Richard H. Broderick, Esquire, represented the
Town. The parties were given full opportunity to examine and
cross-examine witnesses, introduce documentary evidence, and make
oral argument. Both parties waived the filing of post-hearing
briefs. The Board met to deliberate this matter on March 29,
1993.
JURISDICTION
The Association is a bargaining agent, within the meaning of
26 M.R.S.A. 962(2) (1988), for a bargaining unit of fire
fighters employed by the Town of Lincoln. The Town is the public
employer, within the meaning of 26 M.R.S.A. 962(7) (Supp.
1992), of the employees in that unit. The jurisdiction of the
Board to hear this case and to render a decision and order lies
in 26 M.R.S.A. 968(5) (1988 and Supp. 1992).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. In September of 1982, the Town of Lincoln was notified
by the International City Management Association Retirement
Corporation ("ICMA") that it had accepted the Town's partici-
pation in ICMA's deferred compensation plan ("ICMA plan").
2. At a special meeting on March 19, 1984, the Town
Council voted to authorize organized employees of the Police
Department to participate in the ICMA plan as an alternative to
participation in the Maine State Retirement System ("MSRS").
The vote resulted from the fact that in a collective bargaining
agreement between the Town and employees of the Police Depart-
ment, the Town had agreed to establish "an alternate retirement
program in lieu of the MSRS."
3. On December 9, 1985, the Town Council voted to extend
the ICMA plan option to other permanent, full-time employees.
Included in the minutes of that vote is a statement that the
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Town's share of the ICMA contribution would be an amount "not to
exceed the percentage of gross pay dictated to the Town of
Lincoln by the Maine State Retirement System for its members."
The new option was incorporated into the Town's Personnel Rules
and Regulations. At the time the option was extended to all
permanent, full-time employees, the Town was contributing 9.08
percent of gross salary to ICMA for employees of the Town who
were participating in ICMA.
4. The Association and the Town began negotiating their
first collective bargaining agreement on behalf of fire fighters
in January of 1986. That agreement contained a provision
regarding the MSRS, but contained nothing about the ICMA option.
After the Town Council voted to extend the ICMA option to all
permanent, full-time employees in December of 1985, some newly
hired fire fighters, not yet represented by the Association due
to the six-month exclusion in the MPELRL, chose to participate in
the ICMA plan in lieu of the MSRS.
5. The most recent collective bargaining agreement between
the Association and the Town became effective on March 31, 1991,
and expired on June 30, 1992 ("91-92 Agreement"). Article 23 of
the 91-92 Agreement reads as follows:
ARTICLE 23 - RETIREMENT
The Town shall provide Maine State Retirement System
coverage for all employees providing two-thirds (2/3)
pay after twenty-five (25) years of service at attain-
ment of age fifty-five (55).
The 91-92 Agreement is silent on the ICMA plan option.
6. The Town of Lincoln Personnel Rules and Regulations,
effective September 11, 1991, stated:
EMPLOYEE RETIREMENT SYSTEM
All employees of the Town, shall be eligible to
participate in the Maine State Retirement System.
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This retirement system provides a number of bene-
fits to the employee. Due to the complexities of the
plan, employees should refer to the Informational
Handbook, and the Maine State Retirement Law booklet
regarding any questions concerning the plan.
Employees in this retirement system shall contri-
bute at the rate determined by the actuary studies
completed by the M.S.R.S., a certain percentage of their
gross salary except in the case of policeman (sic) and
fireman (sic), whose retirement system requires a higher
contribution.
Employees may elect to join the International City
Manager's (sic) Association Retirement Corporation
(ICMA RC) but will not be eligible for participation
in the M.S.R.S. concurrently with the ICMA RC program.
In all cases of retirement or termination benefits,
the employee or his beneficiary will receive at least
an amount equal to the total of his accumulated contri-
butions.
The Town of Lincoln shall contribute equally to
the Employee Retirement System of the employees (sic)
choice.
7. Sometime after September of 1991 and prior to May of
1992, the Town received an actuarial report from the MSRS stating
that the Town's contribution rate for the coming fiscal year (92-
93) would be zero, due to the fact that the assets in its account
were sufficient to fund liabilities for that year.1
8. Thereafter, the Town decided to reduce its contribution
to ICMA. On May 11, 1992, the Town Council approved amendments
to its Personnel Rules and Regulations, effective July 1, 1992,
that stated in relevant part as follows:
_________________________
1Exhibit R-5, placed in evidence by the Town to defend its
actions, is dated December 1992. It states:
The actuary has determined that the assets in your
account are sufficient to fund all liabilities without
any employer contribution for the period July 1, 1993,
through June 30, 1994 . . . .
It is apparent from testimony that the Town intended to submit
the actuarial report for the previous year.
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O. I.C.M.A. RETIREMENT CORPORATION 457 DEFERRED
COMPENSATION PLAN
An employee not enrolled in M.S.R.S. may elect
to participate in the I.C.M.A. federally qualified
457 Deferred Compensation Plan.
Plan Requirements:
1. New Employees after effective date of this Ordinance
are eligible for enrollment on the first of the month
following six months of employment (probationary period).
2. Employee contributions are through payroll deduction
and are tax free against current earnings.
3. Town will match up to 6% of gross wages in 1%
increments.
4. Employee may make additional contributions through
payroll deduction to the maximum dollar level allowed
by federal law.
9. The 6 percent contribution rate chosen by the Town was
based on the fact that surrounding towns that participate in the
ICMA plan generally contribute 6 percent on behalf of their
employees.
10. By memo dated June 25, 1992, the Town notified
individual employees enrolled in the ICMA plan, including members
of the fire fighters' bargaining unit, of the change in the
Town's contribution to ICMA. The memo stated:
Due to a change in the Personnel Ordinance, in order
for the Town to contribute to your retirement plan, you
must also contribute. The Town will match up to 6%.
Please come into the Town Office by Monday, June 29, 1992,
to change your deduction. If you do not come in, your
ICMA Retirement Plan will automatically be canceled.
11. Prior to the change, five fire fighters were partici-
pating in the ICMA plan in lieu of MSRS. The Town was contri-
buting 9.08 percent of gross pay for these five employees, the
same percentage contribution that it had been making since the
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ICMA option was extended to all permanent, full-time employees in
December of 1985.
12. Prior to the change, two of the five fire fighters were
making an additional ICMA contribution through payroll deduc-
tion,2 and two were not.3 As a result of the June 25th memo from
the Town informing employees of the reduction in the Town's
contribution and the new "match" requirement, four of the five
employees signed employee change forms authorizing the deduction.
One fire fighter (one of the two not already making an additional
contribution) did not sign a change form; consequently, the
Town's contribution to ICMA for this employee is now zero.4
13. For the 1987-88 fiscal year, the actuarial report from
_________________________
2Employee contribution rates to the MSRS are set by statute.
The ICMA plan, a deferred compensation plan, does not require an
employee contribution.
3In the payroll stubs submitted by the Association, it is
not clear whether the fifth employee (Miller) was making a
contribution in addition to that of the Town before July 1, 1992.
4Fire fighters participating in ICMA, their additional
contributions and the Town's contribution, before and after the
change, are summarized below:
EE ER total % into ICMA
before after before after w/o change actual
Thornton 7% 7% 9.08% 6% 16.08% 13%
Stout 0 0 9.08 0 9.08 0
Norris 0 6 9.08 6 9.08 12
Nicastro $20/pay* 6 9.08 6 9.08+$20 12
Miller (see fn. 3) 6 9.08 6 9.08+? 12
*Only two payroll stubs were submitted for each employee -- the
one just before the change, and the one just after. The $20
deducted from Mr. Nicastro's pay before the change is something
over 3.5 percent of his gross salary. This irregular figure
suggests that his deduction was a fixed dollar amount rather
than a percentage of his gross salary. In any case, he was
contributing less than he is contributing since the change.
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the MSRS still required that the Town contribute 9.08 percent.
For fiscal year 88-89, the Town's contribution to MSRS dropped to
zero, based on the actuarial report for that year; its contri-
bution has remained at zero since that time. The Town did not
reduce its contribution to the ICMA plan for fiscal year 1988-89,
or for any year thereafter, until the reduction for fiscal year
1992-93 that is the subject of this prohibited practice com-
plaint.
14. The Personnel Rules and Regulations in effect on
September 11, 1991, and the Personnel Rules and Regulations in
effect as of July 1, 1992, both state that union contracts
supercede the Personnel Rules and Regulations where there is a
conflict, and that in areas of silence, the Personnel Rules and
Regulations apply.
15. The Association was never notified about the actuarial
reports that reduced the Town's contribution to MSRS to zero.
DISCUSSION
Timeliness
In its response to the Association's complaint, the Town
asserts as an affirmative defense that the Association failed to
file its complaint within the six-month filing deadline contained
in the MPELRL. 26 M.R.S.A. 968(5)(B) (1988). Since the
time limits for filing a prohibited practice complaint with the
Board are set by statute and are therefore jurisdictional, we
will address this defense even though the Town failed to pursue
it during oral argument at hearing (no briefs were filed).
The six-month time limit for filing a prohibited practice
complaint "begins to run when the complainant knew, or reasonably
should have known, of the occurrence of the event which allegedly
violated the Act." Coulombe v. City of South Portland,
No. 86-11, slip op. at 8, 9 NPER ME-18008 (Me.L.R.B. Dec. 29,
1986). No evidence was presented by the Town to show that
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it notified the Association of the May 1992 ordinance change.5
By memo dated June 25, 1992, the Town notified individual
employees that "due to a change in the Personnel Ordinance,"
employees would now have to contribute to ICMA in order for the
Town to contribute, and that the Town would match up to 6
percent. Notification to employees in most circumstances does
not constitute notice to a bargaining agent. Even assuming,
however, that the Association itself was on notice on June 25th
that the change had occurred,6 and therefore the deadline for
filing the complaint was December 25, 1992, the Association's
filing was timely. Friday, December 25th was a legal holiday,
followed by the weekend. According to the Rules of Construction,
1 M.R.S.A. 71(12) (1989), "[t]he statutory time period for the
performance . . . of any act . . . shall be governed by and
computed under Rule 6(a) of the Maine Rules of Civil Procedure
. . . ." M.R.Civ.P. 6(a) states in part:
(a) Computation. In computing any period of
time . . . the last day of the period so computed is
to be included, unless it is a Saturday, a Sunday, or
a legal holiday, in which event the period runs until
the end of the next day which is not a Saturday, a
Sunday, or a holiday.
Consequently, the last day for filing the complaint was Monday,
December 28th, the date on which it was filed.
_________________________
5Public notice of a Town Council meeting is not notice to
the bargaining agent. Nor do we believe that a bargaining agent
can fairly be charged with the responsibility of continuously
monitoring Town Council ordinances for changes that should not
even have occurred prior to bargaining.
6This is a fair assumption, since the complaint alleges that
the change occurred on June 25th, and neither party presented
other evidence regarding when the Association received actual
notice.
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Merits
A unilateral change in terms and conditions of employment
constitutes "a circumvention of the duty to negotiate which
frustrates the objectives of [the duty] much as does a flat
refusal." NLRB v. Katz, 369 U.S. 736, 743 (1962); consequently,
such a change is a per se violation of the duty to bargain. Id.
Unilateral changes also inherently tend to interfere with the
free exercise of rights guaranteed by the MPELRL, in violation of
26 M.R.S.A. 964(1)(A). Lane v. Board of Directors of MSAD No.
8, 447 A.2d 806, 810 (Me. 1982).
The rule prohibiting unilateral changes applies not only to
the provisions of a collective bargaining agreement, but to
mandatory subjects on which the contract is silent, as well.
Gorman, Basic Text on Labor Law, at 457 (1976); MSEA v. State of
Maine, No. 84-19, slip op. at 9, 7 NPER 20-15019 (Me.L.R.B.
July 23, 1984); Local 1601, IAFF v. Rumford Board of Selectmen,
No. 73-07, slip op. at 29-30 (Me.L.R.B. Aug. 30, 1973). Where
the contract is silent, past practice will determine what the
employer must do (or not do) until an alternative to that
practice is negotiated.
Thus, the Board has established a three-pronged test for
determining whether an unlawful unilateral change has occurred:
In order to constitute a violation of 964(1)(E),
three elements must be present. The public employer's
action must (1) be unilateral, (2) be a change from a
well-established practice, and (3) must involve one or
more of the mandatory subjects of bargaining.
Teamsters Local Union No. 48 v. Eastport School Dept., No. 85-18,
slip op. at 4, 8 NPER ME-17003 (Oct. 10, 1985).
There is no dispute that the Town acted unilaterally. Nor
has the Town challenged the fact that alternatives to the MSRS
pension, such as the ICMA plan, are a mandatory subject of
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bargaining under the MPELRL.7 At issue, then, is whether a
change from a well-established practice occurred.
The Association makes two arguments to support its allega-
tion that the Town made an unlawful unilateral change. First,
the Personnel Rules and Regulations in place in 1991, prior to
the change, do not contain the statement in the December 1985
Town Council minutes that the Town's contribution to ICMA will be
an amount "not to exceed the percentage of gross pay dictated to
the Town of Lincoln by the Maine State Retirement System for its
members. . . ." Rather, they state simply that "the Town of
Lincoln shall contribute equally to the employee retirement
system of the employees (sic) choice," without specifying whether
the MSRS or the ICMA plan sets the contribution standard. The
Town is stuck with its own ambiguity, the Association argues,
until it bargains over the change.
Second, the Association argues that even if the Personnel
Rules and Regulations are interpreted to reflect the Town
Council's intent as stated in its December 1985 minutes, the Town
failed to implement the 1985 policy. By continuing to contribute
9.08 percent of gross pay for employees participating in ICMA,
even though its contribution to MSRS had been zero since fiscal
year 1988-89, the Town established a practice that it could not
change without bargaining, according to the Association. We
agree.
The Town responds that a change did not even occur; the ICMA
option was offered gratuitously to employees, without bargaining,
and from its inception was subject to unilateral alteration in
accordance with the 1985 ordinance. In fact, states the Town,
when it was notified that its contribution to the MSRS for fiscal
year 1992-93 would be zero, it could have reduced its contri-
bution to ICMA to zero, since the Personnel Rules and Regulations
_________________________
7Lewiston Teachers Association v. Lewiston School Committee,
No. 80-45, slip op. at 9-10, 2 NPER 20-11038 (Aug. 11, 1980).
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permit it, and the parties' contract is silent on ICMA. The Town
did not do so, it states, because reducing its ICMA contribution
to zero would have been an unfair and unintended result. Rather,
the Town gratuitously decided to match up to 6 percent. Finally,
the Town asserts that if there was a unilateral change, it was
lawful under the "past practice" exception to the unilateral
change rule: the town decided to pay 6 percent rather than zero
only in order to be fair.
The Town's argument regarding the December 1985 ordinance
itself simply does not reflect reality. At the time that fire
fighters became eligible to elect the ICMA option, in December of
1985, the Town was contributing 9.08 percent of gross pay to the
ICMA plan for participating employees. From July 1988 on (that
is, for fiscal years 1988-89, 1989-90, 1990-91, and 1991-92), the
Town's contribution to MSRS was zero; yet the Town continued to
contribute 9.08 percent to the ICMA plan throughout that time
period. We see no way, given these facts, to view the 1985
ordinance as past practice.8
In these circumstances, we must also reject the Town's
suggestion that the only real change occurred when the Town
decided to contribute 6 percent rather than zero, out of
fairness. Furthermore, even if that had been the only change,
there is no "fairness" exception to the unilateral change rule.
In sum, we find that the four-year period during which the Town
ignored its own ordinances, and continued to pay 9.08 percent of
each participating unit member's gross salary into the ICMA plan,
was more than sufficient to establish a practice upon which those
employees were entitled to rely. Teamsters Local Union No. 48 v.
Town of Jay, No. 80-02, 2 NPER 20-11006 (Me.L.R.B. Dec. 26,
1979). The fact that the ICMA plan itself was instituted
_________________________
8Since the Town chose not to follow the December 1985
ordinance during this four-year period, it makes no difference
how we interpret the Personnel Rules and Regulations that were in
place in 1991, prior to the change.
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unilaterally is irrelevant. Teamsters Local Union No. 48 v.
Bucksport School Dept., No. 81-18, slip op. at 4, 3 NPER 20-12009
(Me.L.R.B. Dec. 22, 1980).
One final observation is in order. Even if we had found
that no past practice had been established with regard to the
Town's ICMA contribution rate of 9.08 percent, we would
nevertheless find that the Town had made an unlawful unilateral
change in connection with the mandatory subject of pensions. For
a period of 6 1/2 years (from December of 1985 until July 1,
1992), unit members could voluntarily make additional contri-
butions to ICMA through payroll deduction, at whatever level they
chose. (The ICMA plan is not a defined benefit plan.) Effective
July 1, 1992, the Town's contribution was contingent on a
matching contribution from participating employees.
We find that the Town made two unlawful unilateral changes.
Accordingly, we will order the Town to cease and desist from
making unilateral changes in the mandatory subject of pensions,
in violation of 26 M.R.S.A. 964(1)(A) and (E) (1988). In
addition, in order to effectuate the policies of the MPELRL, we
will order the Town to restore the situation, as nearly as
possible, to that which would have obtained but for the unlawful
unilateral changes. Sanford Highway Unit v. Town of Sanford, 411
A.2d 1010, 1016 (Me. 1980). First, the Town will be ordered to
reinstate its 9.08 percent contribution rate for all five
employees. For unit members who, prior to July 1, 1992, were
voluntarily making a payroll contribution equal to or in excess
of the 6 percent match requirement (and therefore were not harmed
by that requirement), the Town will be ordered simply to make a
lump sum payment into ICMA to remedy the unlawful reduction in
the employer's contribution for fiscal year 1992-93 (3.08 percent
of gross pay, plus lost investment earnings). (John Thornton is
in this category.) For the unit member for whom no employer
contribution was made after July 1, 1992 (Dale Stout), the Town
must make a lump sum payment into ICMA of 9.08 percent of gross
pay, plus lost investment earnings.
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Unit members who, as a result of the "match" requirement,
have been making a larger payroll contribution since July 1,
1992, than they were making before that date, will be given the
opportunity to return to their previous contribution rates.
Unfortunately, there is no way for them to recoup, directly from
ICMA, the increase in contributions already made. Consequently,
these employees will be given a choice: 1) the employee will
leave his increased contribution in ICMA, and the Town will make
a lump sum payment into ICMA of 3.08 percent of gross pay, plus
lost investment earnings (to remedy the unlawful 3.08 percent
reduction in employer contribution); or 2) the employee will be
reimbursed by the Town for the employee's increased payroll
contribution, in a lump sum, plus interest,9 and the Town will
temporarily alter its reinstated 9.08 percent contribution rate
(up or down) sufficiently to bring the total contribution (plus
investment earnings) for that employee during fiscal year 1992-93
to what it would have been without the Town's unlawful unilateral
changes.10 This remedy, in effect, requires the Town to pay into
ICMA the 3.08 percent of gross pay, plus lost investment
earnings, that it unlawfully withheld, while at the same time
giving employees the option of recouping their increased
_________________________
9Interest is to be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977), utilizing the interest rates speci-
fied in New Horizons for the Retarded Inc., 283 NLRB 1173 (1987).
Thus, interest is to accrue commencing with the last day of each
calendar quarter of the time period subject to reimbursement, on
the total amount then due and owing at the short-term Federal
rate then in effect, and continuing at such rate, as modified
from time to time, until the Town has complied with this order.
From July 1, 1992, to September 30, 1992, the short-term Federal
rate was 8 percent. From October 1, 1992, to the present, the
rate has been 7 percent.
10For employees such as Kevin Norris, whose increased
contribution was greater than 3.08 percent (his was 6 percent),
the Town would reduce its reinstated 9.08 percent contribution
temporarily to recoup the difference. For employees whose
increase was less than 3.08 percent, the Town would be required
to pay the difference into the plan. Either way, the Town's
total obligation is 3.08 percent for each employee. See fn. 4.
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contribution immediately or leaving it in ICMA until they leave
employment with the Town.
ORDER
On the basis of the foregoing facts and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. 968(5) (1988
and Supp. 1992), it is hereby ORDERED:
1. That Respondent Town of Lincoln and its representatives
and agents shall:
a. Cease and desist from refusing to bargain and
from interfering, restraining and coercing
employees in the fire fighters' bargaining unit
in the exercise of their bargaining rights
by making unlawful unilateral changes in the
mandatory subject of pensions.
b. Take the following affirmative actions that are
necessary to effectuate the policies of the
MPELRL:
i. For unit members who were voluntarily making
at least a 6 percent payroll contribution to
ICMA before July 1, 1992, pay into ICMA a
lump sum equal to 3.08 percent of gross
pay for the period July 1, 1992, to the date
that the 9.08 percent contribution rate is
reinstated pursuant to iii. below, plus the
investment earnings lost during that period.
Payment shall be made within 30 days of the
date of issuance of this decision and order.
ii. For unit members for whom no contribution was
made to ICMA by the Town after July 1, 1992,
pay into ICMA a lump sum equal to 9.08 percent
of gross pay for the period July 1, 1992, to
the date that the 9.08 percent contribution
rate is reinstated pursuant to iii. below,
plus the investment earnings lost during that
period. Payment shall be made within 30 days
of the date of issuance of this decision and
order.
iii. For employees in ii. and iii. above, rein-
state the established practice of contributing
to ICMA at the rate of 9.08 percent of gross
pay. Payment at the rate of 9.08 percent shall
begin on the next regularly scheduled pay day.
If "the next regularly scheduled pay day"
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occurs within one week of the date of issuance
of this decision and order, payment may begin
on the next regularly scheduled pay day there-
after.
iv. To unit members who, due to the employer's
requirement for a matching employee contri-
bution, have been making a larger payroll
contribution to ICMA since July 1, 1992, than
they were making prior to that date, offer
the opportunity to return to their previous
contribution rates. In addition, offer to each
the following choice:
(a) The remedies ordered in i. and iii.
above, or
(b) The Town shall pay to the employee a
lump sum amount equal to the increased
payroll contribution made by the
employee since July 1, 1992, plus
interest. Payment shall be made within
30 days of the date of issuance of this
decision and order. The Town shall,
within 30 days of the date of issuance
of this decision and order, reinstate
its 9.08 percent contribution rate for
the employee, but shall adjust that rate
temporarily (up or down) to bring the
total 1992-93 contribution, plus invest-
ment earnings, to what it would have
been absent the Town's unlawful changes.
2. That the Association's request for costs is denied.
Issued at Augusta, Maine, this 21st day of April, 1993.
The parties are hereby advised MAINE LABOR RELATIONS BOARD
of their right, pursuant to 26
M.R.S.A. 968(5)(F) (Supp. 1992),
to seek review of this decision /s/________________________
and order by the Superior Court. Peter T. Dawson
To initiate such a review an Chair
appealing party must file a
complaint with the Superior Court
within fifteen (15) days of the /s/________________________
date of issuance of this decision George W. Lambertson
and order, and otherwise comply Employee Representative
with the requirements of Rule 80C
of the Maine Rules of Civil
Procedure.
Alternate Employer Representative Jim A. McGregor filed a
separate opinion, dissenting in part.
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OPINION
I do not agree with my colleagues that the Town was required
to bargain over the reduction in its contribution rate for unit
members participating in the ICMA plan. The parties' collective
bargaining agreement is silent on that plan, and the Town had no
intention, in making the change, to harm unit members. In fact,
when it received the actuarial report from the MSRS requiring no
contribution for fiscal year 1992-93, the Town did not reduce its
ICMA contribution to zero, wishing to avoid a harsh and unin-
tended result for employees who had chosen the ICMA option.
As a lay member of the Board, I believe it is my job not simply
to apply the law, but to reach a fair result. I do not believe
that the Town should be penalized for having foregone its right,
from 1988 until 1992, to reduce its ICMA contribution as a result
of its reduced MSRS contribution. The Town's four years of
forbearance benefited employees, not the Town.
I do agree with my colleagues that the Town's new require-
ment that unit members match the employer's ICMA contribution was
an unlawful unilateral change. I see no connection between the
"match" requirement and the MSRS actuarial results upon which the
Town relied for reducing its own contribution; the "match"
requirement was not contained in either the December 1985
ordinance extending the ICMA option to all permanent, full-time
employees, or the 1991 version of the Personnel Rules and
Regulations. The Town offered no explanation for this change,
compelling or otherwise. Accordingly, I would order a remedy for
that violation.
Issued at Augusta, Maine, this 21st day of April, 1993.
MAINE LABOR RELATIONS BOARD
/s/__________________________
Jim A. McGregor
Alternate Employer Representative
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