Powers McGuire v. University of Maine System, MLRB No. 93-37
(Employer Representative Reiche dissenting in part, Apr. 4, 1994),
aff'd, No. CV-94-153(Me. Super. Ct., Ken. Cty., Oct. 11, 1994)

STATE OF MAINE                     MAINE LABOR RELATIONS BOARD
                                   Case No. 93-37
                                   Issued:  October 18, 1993

                                   
________________________________
                                )
POWERS MCGUIRE,                 )
                                )
               Complainant,     )
                                )
               v.               )        INTERIM ORDER
                                )
UNIVERSITY OF MAINE SYSTEM,     )
                                )
               Respondent.      )
                                )
________________________________)


     On May 21, 1993, the Maine Labor Relations Board ("Board")
received a prohibited practices complaint from Powers McGuire
alleging that the Trustees of the University of Maine System
("University") had violated section 1027(1)(E) of the University
of Maine System Labor Relations Act ("University Act"),        
26 M.R.S.A.  1027(1)(E) (Supp. 1992), by unilaterally changing
its well established practices regarding payment to faculty for
teaching summer classes.1  After a series of amendments (none of
which is relevant to the issue here) and a delay caused by the
Mr. McGuire's schedule, a prehearing conference was held on
September 13, 1993, Chair Peter T. Dawson presiding.  After the
conference was adjourned, counsel for the University raised with
the prehearing officer the issue of whether the Complainant, who
is not represented by outside counsel,2 would be permitted to
testify narratively, or whether he would be required to testify
by question and answer.  Later that day, Chair Dawson contacted
_________________________

     1Subsequently, the complaint was amended to name the
University of Maine System as the Respondent. 

     2Mr. McGuire has a law degree, although he is not licensed
to practice in the State of Maine.  

                               -1-

both parties by phone to attempt to resolve the matter.  No
resolution was reached.

     On September 15, 1993, the Board received a letter from
Mr. McGuire outlining the reasons he believed he should not be
required to testify by question and answer.  On September 24,
1993, Chair Dawson issued the Prehearing Conference Memorandum
and Order in this matter, which is incorporated herein by
reference.  It included an order for the University to submit a
written memorandum as to its position on this issue, as well as
an order that the Complainant either supplement his earlier
letter or notify the Board of his decision not to supplement.
Neither party filed a submission by the deadline included in the
order.  Eventually, Mr. McGuire notified the Board that he did
not wish to file a supplement to his original letter.  To date,
the Board has received nothing from the University.

     Nothing in either the University Act or the Board's Rules
and Procedures requires a party to a prohibited practice case to
be represented by counsel; consequently, it is not uncommon for   
parties to represent themselves or to be represented by someone
who is not an attorney.  Where a party representing him/her/
itself wishes to testify, the party often brings someone to
conduct the questioning.  The issue now before us is whether the
Complainant should be required to do so in this case.3  

     Three facts lead us to conclude that he should not.  First,  
since no jury is involved in Board adjudications, there is no
danger that the University will be prejudiced by narrative
testimony.  Counsel for the University will be able to protect
his client by making timely and appropriate objections and/or
_________________________

     3This issue has not previously been raised by an opposing
party.  Where the issue is raised, we will make a decision based
on the circumstances of the individual case. 

                               -2-

motions to strike.  Second, in response to the prehearing
officer's order regarding a written submission on the Univer-
sity's position, the University submitted nothing.  We decline to
make more out of the University's objection to narrative testi-
mony than it has made itself.  Finally, we note that the
Complainant should be able to properly apply the Board's rules
regarding evidence (Rule 4.08(A)), since he is an attorney.  We
do reserve the right to terminate the hearing and require Mr.
McGuire to testify by question and answer at a future time,
should he repeatedly violate the evidentiary rules of Rule
4.08(A).        

                              ORDER
     It is accordingly ORDERED that Complainant Powers McGuire,
in testifying on his own behalf, will be permitted to testify in
narrative form at the evidentiary hearing in this matter.   

Issued at Augusta, Maine, this 18th day of October, 1993.   
         
                              MAINE LABOR RELATIONS BOARD


                              /s/____________________________
                              Peter T. Dawson
                              Chair


                              /s/____________________________
                              Howard Reiche, Jr.  
                              Employer Representative


                              /s/____________________________
                              George W. Lambertson
                              Employee Representative


                               -3-


STATE OF MAINE                     MAINE LABOR RELATIONS BOARD
                                   Case No. 93-37
                                   Issued:  April 4, 1994       

                                   
________________________________
                                )
POWERS MCGUIRE,                 )
                                )
               Complainant,     )
                                )
               v.               )        DECISION AND ORDER
                                )
UNIVERSITY OF MAINE SYSTEM,     )
                                )
               Respondent.      )
                                )
________________________________)


     On May 21, 1993, the Maine Labor Relations Board ("Board")
received a prohibited practices complaint from Powers McGuire
alleging that the Trustees of the University of Maine System
("University") had violated section 1027(1)(E) of the University
of Maine System Labor Relations Act ("University Act"),        
26 M.R.S.A.  1027(1)(E) (Supp. 1993), by unilaterally changing
its well established practices regarding payment to faculty for
teaching summer classes.  On that same day, the Board received 
an amended complaint which added a charge that the University had
cancelled McGuire's summer class in order to prevent him from
filing a grievance regarding the unilateral salary change.  The
amended complaint alleged that the salary change and the cancel-
lation both violated section 1027(1)(A) and (E) of the University
Act.  By letter dated May 24, 1993, the executive director
notified the complainant of his failure to have either complaint
notarized, which deficiency was corrected by the filing of a
notarized, amended complaint on June 8, 1993.[fn]1   
_________________________

     1 On September 16, 1993, the complainant requested to 
further amend the complaint to correct a typographical error.  
The request was granted, without objection, on September 27, 
1993.   

                               -1-
                                  
     In its answer, the University denied the allegations and
moved for dismissal of the complaint on the grounds that 1) the
proper party had not been joined; 2) complainant had failed to
exhaust his remedies under the contractual grievance procedure;
3) the complainant lacks standing to complain of an alleged
violation of 26 M.R.S.A.  1027(1)(E); and 4) the Board lacks
subject matter jurisdiction and jurisdiction for insufficiency of
process and service of process.  The complainant responded to the
motion by reply filed on June 16, 1993. 

     Due to the earlier unavailability of the parties, Board
Chair Peter T. Dawson convened a prehearing conference in this
matter on September 13, 1993.  At that time, the University
dropped its allegations regarding service of process, and the
complainant moved to amend the designation of the respondent
throughout the pleadings, without objection.  In response to a
request by the University, in its answer to the complaint, for
attorney's fees, the complainant presented the prehearing officer
with a written request and argument for same.  No action was
taken on either request.  Other issues addressed at or after the
prehearing conference2 are outlined in the Prehearing Memorandum
and Order, dated September 24, 1993, and the Interim Order of the
full Board3, dated October 18, 1993, both of which are incorpo-
rated in and made a part of this decision and order.        

     An evidentiary hearing was held on January 10, 1994.  Chair
Dawson presided over the hearing, accompanied by Employer
Representative Howard Reiche, Jr., and Alternate Employee
Representative Gwendolyn Gatcomb.  Powers McGuire represented
_________________________

     2Deferral to grievance arbitration and question of whether
complainant, in testifying on his own behalf, should be permitted
to testify in narrative form.

     3Consisting of Chair Dawson, Employer Representative Howard
Reiche, Jr., and Employee Representative George W. Lambertson.

                               -2-

himself, and F. Paul Frinsko, Esquire, represented the Univer-
sity.  The parties were given full opportunity to examine and
cross-examine witnesses, introduce documentary evidence,     
and make oral argument.  The parties filed posthearing briefs,
the last of which was received on February 14, 1994.  The Board
deliberated this matter on March 4, 1994.   

                           JURISDICTION
     Powers McGuire is a university employee, within the meaning
of 26 M.R.S.A.  1022(11) (Supp. 1993), and a member of the
faculty bargaining unit represented for purposes of collective
bargaining by the Associated Faculties of the University of
Maine/MTA/NEA ("AFUM").  The University is the public employer,
within the meaning of 26 M.R.S.A.  1022(10) (Supp. 1993), of 
the employees in the faculty unit.  The jurisdiction of the Board
to hear this case and to render a decision and order lies in   
26 M.R.S.A.  1029 (1988 and Supp. 1993).         

                         FINDINGS OF FACT
     Upon review of the entire record, the Board finds:
     1.   AFUM and the University signed a successor collective
bargaining agreement on October 18, 1989, effective through June
30, 1992 ("1989-92 agreement").  The 1989-92 agreement contained
the following provisions:
                           ARTICLE 11
                            Workload
    
     A. 1.  The work year for unit members on fiscal year  
            appointments, except for such unit members in
            the Department of Physical Education and     
            Athletics at the University of Maine, shall be   
            from July 1 through June 30 inclusive of annual
            leave and holidays as provided in Article 18,   
            Leaves. Except for such period of annual leave  
            and holidays, unit members shall be available   
            for assignment to professional activities.
        2.  The work year for unit members on fiscal year       
            appointments in the Department of Physical
            Education and Athletics at the University of Maine
            shall be twelve (12) consecutive months

                              -3-

            inclusive of annual leave and holidays as pro-
            vided in Article 18, Leaves.  Except for such
            period of annual leave and holidays, unit mem-       
            bers shall be available for assignment to            
            professional activities. 
     B. The work year for unit members on academic year 
        appointments  shall be from September 1 through
        May 31.  An exception to this may be made in
        the form of a letter of agreement for any year
        in which the academic year starts on the first
        or second day of the month of September.  The
        work year shall include a teaching workload of
        two semesters and other professional and
        University activities and responsibilities.  
     C. 1.  The workload of unit members shall consist
            of  teaching, research, University, and
            public service.  The mix of teaching,
            research, University, and public service
            responsibilities varies among campuses,
            colleges, divisions, departments, and unit
            members.
        2.  The major basis for determining the composition  
            of a unit member's workload shall be depart-    
            ment, division or other appropriate unit         
            responsibilities and needs, college needs,       
            individual competencies and the past workload    
            of an individual unit member.
        3.  There shall be no unreasonable change in         
            practices relating to the scheduling of class
            times during the term of this Agreement.
        4.  Individual workload assignments shall be made by
            the department, division or other appropriate
            unit chairperson or director in consultation
            with the individual unit member and the  
            department, division or other appropriate unit
            subject to the approval of the chief
            administrative officer or his or her designee
            and shall be reasonable.  There shall be no
            unreasonable increase or decrease in an
            individual's total workload during the term of
            this Agreement.
        5.  Unit members will not normally be required to
            teach at an outreach center without their
            consent.  Consideration in assignments to
            outreach programs shall include such factors as
            terms contained in letters of appointment,
            academic program needs and financial
            considerations.  The University shall exercise
            reasonable effort to assure equitable
            distribution of outreach assignments.
        6.  Reasonable efforts will be made to schedule      
            classes for unit members teaching at more than

                               -4-

            one (1) geographic location in such a way as to
            minimize travel time between locations and to
            allow adequate travel time between classes.
        7.  Unit members will not be required to teach in
            the ITV-FS programs except where consistent with
            terms contained in letters of appointment. 
            Videotapes of ITV-FS program offerings shall     
            conform to use policies established by the unit
            member and shall not be routinely kept by the
            University except for examination review, for
            make-up of student absences or for the unit      
            member's self study purposes.  Videotapes shall
            not be used for evaluation purposes except where
            permitted by department or division evaluation
            procedure.
            Scheduling of ITV-FS obligations shall be
            in conformity with the other provisions of
            this Article.
            Methods of compensation currently utilized for
            ITV-FS instruction shall be continued in the
            1989-1990 academic year.  Compensation options
            shall be determined in accordance with the
            provisions of Section C.4. 
            Due to the limited experience with the ITV-
            FS system, this subsection shall not be
            subject to the provisions of Article 33,
            Section B of the agreement, but shall be
            subject to negotiations within thirty (30)
            days by a written request of either party. 
            It is not the intent of the parties that
            implementation of the ITV-FS network will
            result in a workforce reduction.
        8.  Unit members on academic year appointments
            who are granted released time from any
            portion of their regular teaching workload
            will be eligible for overload offerings
            only with the approval of the chief
            academic officer or that person's designee.
     D. Unit members shall be entitled to at least ten
        (10)hours off time between the completion of
        assigned work on one day and the commencement
        of assigned work on the subsequent day.  If a
        unit member's assigned work goes beyond ten
        p.m., the unit member shall not be required to
        perform assigned work earlier than ten a.m. the
        following day.
     E. Upon reasonable request, the University shall   
        supply necessary data regarding unit members'
        workloads to the Association for use in such
        studies of workload which the Association may
        conduct.

                               -5-

                           ARTICLE 23
                       Outside Employment

     A. "Outside employment" as used in this Article
        means employment, including self-employment,
        which is not contracted for through the
        University and for which any remuneration paid
        is not paid through the University.


                           ARTICLE 24
                      Bargaining Unit Work

     A.  Bargaining unit work includes such activities as    
         are described in articles 10.B and 11.C.1.  These   
         responsibilities are fulfilled in major part by     
         unit members.
     B.  It is the intention of the parties that bargaining  
         unit work be performed by unit members.  However,   
         the responsibilities stated above, as in any other  
         academic institution, are also fulfilled by non-    
         unit members.
     C.  A variety of research, specialized advising, public 
         service and teaching that has not been tradition-   
         ally performed by unit members may be determined to 
         constitute part of regular workload or overload as  
         provided in Article 11.    
     D.  Undergraduate students shall not assume regular     
         classroom teaching responsibilities.
     E.  Where non-unit members have teaching responsibili-  
         ties, evaluation of teaching performance shall be   
         in accordance with the procedures established in    
         this Agreement.
     F.  Overload courses within their department, division  
         or other appropriate unit shall be offered to       
         qualified unit members.  The distribution of such   
         courses shall be in an equitable manner.
     G.  Unit members shall be informed of summer session    
         and mini-session course opportunities within their  
         department, division or other appropriate unit.     
         Current practice regarding the assignments of these 
         courses within the department, division or other    
         appropriate unit shall be continued.
     H.  Departments, division or other appropriate units    
         identified in the report of the Committee on        
         Bargaining Unit Work dated July 24, 1985 which use  
         non-unit members for more than 35% of current       
         teaching contacts shall not increase this propor-   
         tion except in the case of unusual circumstances    
         with notice to the Association.

                               -6-

The 1989-92 agreement also contained minimum base salaries at
each faculty rank (instructor, assistant professor, associate 
professor and professor) for each year of the contract,4 and
yearly salary increases of various types. 

     2.   On October 28, 1991, a new agreement was signed to
supersede the 1989-92 agreement, effective through June 30, 1993. 
Articles 11 and 24 of the 1989-92 agreement were incorporated
into the new agreement.  A new salary schedule of increases
superseded the old one. 

     3.   Faculty members are paid a base salary for teaching and
other professional responsibilities.  A normal teaching load for
an academic-year appointee is 24 credits, 12 per semester. 
Additional compensation is paid for "overload" teaching -- that
is, for teaching beyond one's established course load during the
academic year.  

     4.   The yearly overload compensation schedule, which 
appears in a separate document and not in the AFUM contract,  
reflects the percentage increases for overload compensation
negotiated in the contract; the schedule is used system-wide.  
As with the regular compensation schedule in the contract, the
_________________________

     4At the time of hire, higher salaries may be negotiated
between the University and individual faculty members without
AFUM input, as long as contractual minimum is met.  The
University consults with AFUM when there is a post-hiring
proposal to upwardly adjust the base salary of a faculty member
above and beyond salary increases that appear in the contract. 
AFUM is also consulted on salaries for phased in retirement --
where faculty wish to teach a reduced load prior to full
retirement.  It has been consulted in one instance regarding
upward adjustment of a promotional increase.  AFUM is not
currently consulted on proposals for upward salary adjustments
for overload compensation or for summer course compensation.  

                              -7-

negotiated overload schedule establishes the minimum compensation
that must be paid.  University campuses are free to pay higher
overload rates, and individual faculty are free to negotiate
higher rates as well.   

     5.   Academic-year faculty members are also eligible to
teach summer courses.  The minimum overload compensation schedule
is the minimum compensation for summer course payment.  At the
University of Maine at Augusta ("UMA"), summer faculty are
generally paid the minimum salary indicated on the overload
schedule, based on the rank of the faculty member and the number
of course credits.5  Some campuses regularly pay more than the
minimum.   

     6.   Since 1987, the University has offered courses on its
current interactive television system (ITV).  The new system
became fully operational in the fall of 1989.6  

     7.   During the summer, minimum enrollment for regular
courses is 12 students.7  For summer courses taught by UMA on the
ITV system, minimum enrollment has been 30 since the summer of
_________________________

     5Two UMA faculty members are paid at a higher rank on the
overload compensation schedule than their actual rank.  In one
instance that is because of the length of time she has taught at
UMA.   

     6There was also a television system for teaching at UMA in
the 1970's, and at some point, one at the University of Southern
Maine.  In 1987, when the current system was established, it
linked only Augusta and Lewiston.  In 1989 it was expanded
statewide. 

     7If fewer than 12 students are enrolled, and the faculty
member is willing to do so, the course may be taught on a
directed-study basis.  In those instances, compensation is $30
per credit per student, to a maximum of four students.  That is,
compensation does not increase for enrollment above four
students.  

                               -8-

1991.[fn]8          

     8.   Payment for ITV courses is set independently at various
University campuses, as long as the summer minimum is met.  Prior
to the summer of 1993, with one or two exceptions (see paragraph
17 below), UMA faculty who taught overload or summer courses on
ITV always received twice their overload or summer course salary,
plus a preparation fee of $500.[fn]9  Approximately 70 ITV courses
have been offered at UMA since 1989.  Between 1987 and the summer
of 1993, Jon Schlenker, a professor of sociology and anthropology
at UMA, taught approximately 30 ITV courses, and in each instance
was paid twice his normal overload/summer salary plus $500.  In
one instance his course was cancelled pursuant to UMA's under-
enrollment cancellation policy.
     
     9.   Powers McGuire is employed as an associate professor of
business and governmental science at UMA.  He has been employed
by the University since 1980.  McGuire is an academic-year
appointee.  According to the overload compensation schedule for
academic year 1992-93, McGuire receives $2285 for teaching a
three-credit, non-ITV course.      

     10.  By letter contract dated May 5, 1993, McGuire was
offered a teaching assignment for the summer session of 1993 by
Provost Richard Randall, in accordance with UMA's double
compensation policy for ITV courses.  The letter stated:
_________________________

     8This cutoff is based on the need, in order to break even
financially, for an average enrollment of 90 students for ITV
courses over the course of the year.  Enrollment for some ITV
courses is in the range of 150-200 students.

     9UMA faculty who teach ITV courses as part of their normal
course load during the academic year are given double credit
toward their required credit load.  As the provost summarized the 
academic year/summer ITV policy, faculty teaching an ITV course
get credit for teaching two courses, either in terms of credit
toward the base load or as additional compensation. 

                               -9-

     Your Division Chair has forwarded your name for a teaching assignment
     during the Summer Session 1993.  I am pleased to offer you this assignment
     and hope that it is a rewarding experience for you.  You are scheduled to
     teach:

     CRN#     COURSE#/TITLE      DAY/TIME       LOCATION    RANK   SALARY

     01780    BUA 230 Bus Law    TTH 9-11:30AM    LRC 16   Assoc   $4570                           
                                                          Prep Fee $ 500

     Payment for your course(s) will be made in two installments on the last
     working day of June and July.  Payment for your preparation fee will be
     included in your June paycheck. Please note that your check will not be
     released until a signed copy of this contract is received in my office.  

     Please refer to the enclosed Instructions for First Class and Conditions of
     Employment.  Also enclosed is a class schedule.  If you have any questions
     or require additional information, please feel free to contact me or my office
     staff at 621-3418.

                                         I accept the assignment above and
                                         terms specified in Instructions for First
                                         Class and Conditions of Employment.


                                                                     
                                         _______________________/_________
                                         (Signature)                (Date)

                                         ________________________________
                                         (Social Security Number)


McGuire signed the agreement on May 12, 1993. 


     11.  "The Summer 1993 Instructions for First Class and
Conditions of Employment" included the following paragraph:

     COURSE CANCELLATION
     UMA reserves the right to cancel courses with
     insufficient enrollment.  Initial minimum enrollment
     cancellation decisions are made approximately one week
     prior to the start of the semester.        

                              -10-
     
     12.  The summer session was scheduled to begin on May 24,
1993, and McGuire's course was scheduled to begin on May 27th. 
On May 14th, McGuire was approached by George Tomberlin, the
chair of the business and governmental sciences division at UMA. 
Tomberlin stated that due to low enrollment, some summer courses
would be cancelled.  He also stated that for classes with
enrollments between 15[fn]10 and 30 students, if enrollment had not
reached 30 by May 18th, the course would be cancelled unless
there was an agreement to teach it for single compensation.  In
response, McGuire said that he would teach his course under those
conditions, but that he intended to file a grievance.  In further
discussions later that day, McGuire asked what the salary would
be for a course in which enrollment reached 30 after the May 18th
cutoff date.  When he was informed that according to Provost
Randall he would still get only single compensation, he agreed
but reiterated his intention to file a grievance.11  

     13.  On May 19, 1993, McGuire was informed by another
faculty member that his name had come up at the recent provost's
staff meeting in connection with his dissatisfaction with summer
teaching assignments.  Shortly thereafter, he was asked by
Tomberlin to "renegotiate" summer school.  In response, McGuire
stated, with a chuckle, that "I'll take the full salary." 
Tomberlin replied, also with a chuckle, that "I'm authorized to
give you half salary."  Sometime that same day, McGuire also
received a memorandum from Tomberlin dated May 19, 1993,[fn]12
stating:
_________________________

     10McGuire was not certain about this number.

     11McGuire never did file a grievance.  He decided instead to
file the prohibited practices complaint that is the subject of
this decision and order.

     12McGuire could not remember when on the 19th he received
the memorandum.

                              -11-

     Please be advised that the BUA 230 (ENM) course for
     Summer Session, 1993 has been cancelled.  Please
     contact me if you would like to discuss renegotiation
     of your summer contract.    


Handwritten at the bottom of the memorandum is the following:
     5/19/93 
     OK, to teach at 
     1/2 pay (undecipherable)  (whole line scratched out)
     1/2 of 4650 + 500 (scratched out)
     $2285 + $500             
     (McGuire's signature)

     accepted
     (Tomberlin's signature)  05/19/93

The two lines scratched out reflect the fact that without looking
at the overload schedule, neither McGuire nor Tomberlin could
remember the correct single compensation figure.

     14.  Although there were fewer than 30 students enrolled in
McGuire's course as of May 19th, enrollment eventually reached
32.  Nevertheless, McGuire taught the course for single
compensation plus the $500 preparation fee.  UMA refuses to pay
double compensation when the enrollment cutoff is met after the
cutoff deadline, since the faculty member has already agreed to
teach the course for single compensation.         

     15.  For the 1993 summer session at UMA, three courses, in
addition to McGuire's course, were under-enrolled.  At the
provost's staff meeting, the provost requested that the
appropriate division chairs inform their respective faculty
members that those courses would be cancelled.  Some discussion
may also have occurred regarding offering under-enrolled courses
if faculty would agree to teach for single rather than double
compensation.  In each of the four cases, the course was taught

                              -12-

for single compensation plus the $500 preparation fee.  

     16.  Jon Schlenker taught two courses during the 1993 summer
session, one of which was under-enrolled and therefore subject to
single compensation.  Schlenker did not receive a memorandum
cancelling the course, as McGuire had gotten; rather, he received
a written offer to teach that course for single rather than the
usual double compensation, which he signed.13  He did hear from
his division chair that his course might be cancelled for under-
enrollment. 

     17.  According to the provost, since 1991 when the 30-
student enrollment limit was established for summer ITV courses,
between 6 and 10 courses have been under-enrolled and subject to
the single-compensation policy, including the four in the summer
of 1993.  He could specifically recall one instance, prior to the
summer of 1993, when the policy had been applied.14  In that
instance, the faculty member (Ron Norton) received the following
memorandum, dated May 9, 1991, from the director of summer
sessions:

     This is to confirm our phone discussion today regarding
     the low enrollment in Econ. 102 scheduled in session 3
     over ITV.  The current economic climate in Maine would
     not justify double payment for a low enrollment of this
     nature during the summer session.
 
     Our adhoc agreement is to teach the course as scheduled
     and you will receive payment on the basis of a 3 credit
     course rather than double payment because it is taught
     on ITV.  Your agreement to this arrangement rather than
     cancel the course should not be considered as precedent
     setting and is appreciated by me for the good of our
     summer students.
_________________________

     13He received double compensation for the other course he
taught.

     14Also, Rudolf Snowadzky "may have been another case." 
     
                              -13-
     
     Thank you for the concern you have expressed by
     agreeing to this procedure.      
                     
     18.  The University did not contact or otherwise negotiate
with AFUM over the decision to pay single compensation for under-
enrolled summer ITV courses.   No notice was ever given to UMA
faculty members regarding  the single-compensation policy.  

                                DISCUSSION
Standing
     In its response to the complaint, as amended, the University
alleges that McGuire lacks standing to bring a charge of viola-
tion of 26 M.R.S.A.  1027(1)(E).  Although the University failed
to pursue this defense, either during oral argument at hearing or
in its posthearing brief, we will address it, since standing to
complain is an essential element of the Board's authority to hear
prohibited practices complaints.  We decline to find that only a
bargaining agent may assert a violation of section 1027(1)(E). 

     Section 1027(1)(E) prohibits any employer covered by the Act
from "refusing to bargain collectively with the bargaining agent
of its employees as required by section 1026."  The requirements
of section 1026 focus on the actual bargaining process leading up
to and including the execution of a collective bargaining
agreement.15  As such, these aspects of the duty to bargain run
specifically between the employer and the bargaining agent and
should be enforced by them.  

     Inherent in the duty to bargain is also the duty to refrain
_________________________

     15Under section 1026, the obligation to bargaining collec-  
tively includes the obligation to meet at reasonable times; to
meet in response to a 10-day notice letter; to negotiate in good
faith; to execute in writing any agreements arrived at; and to
participate in good faith in the dispute resolution procedures
outlined in that section.

                              -14-

from making unilateral changes in terms and conditions of employ-
ment; unilateral changes constitute "a circumvention of the duty
to negotiate which frustrates the objectives of  8(a)(5)[fn]16 much
as does a flat refusal."  NLRB v. Katz, 369 U.S. 736, 743 (1962). 
We know of no policy reason to prohibit an employee from enforc-
ing a collective bargaining agreement (that is, from complaining
of unilateral changes), since employees are the direct benefici-
aries of any agreement that is reached.17  That is even more true
for enforcement of established practices that benefit employees
and on which the collective bargaining agreement is silent (as is
the case here);18 unless the agreement contains a general
maintenance-of-benefits article, the bargaining agent has no
proprietary interest in enforcing terms and conditions of
employment that it has not negotiated and that it may not even be
aware of until an employee complains. 

     In fact, there is at least one strong policy reason for
interpreting the statute to permit charges of unilateral change
to be brought by individual employees.  If they had no standing
to do so, employees could be left without a reasonable remedy
where, for instance, the interests of employees and those of the
bargaining agent conflict.  In that circumstance, the Board has
entertained an employee complaint of unilateral change.  Charles
_________________________

     16The private-sector parallel of section 1027(1)(E).  Under
section 8(a)(5) of the National Labor Relations Act, 29 U.S.C.A.  
 158(a)(5) (1973), an employer may not "refuse to bargain
collectively with the representatives of his employees." 

     17There are some provisions, such as the union security
provision, that should be enforced only by the bargaining agent
as the direct beneficiary of those provisions. 

     18As the Board pointed out most recently in Lincoln Fire
Fighters' Association Local 3038 v. Town of Lincoln, No. 93-18
(Me.L.R.B. Apr. 21, 1993), unilateral changes in mandatory
subjects on which a collective bargaining agreement is silent
also constitute a failure to bargain.     

                              -15-
                              
v. City of Waterville, No. 78-19 (Me.L.R.B. July 21, 1978).  

     Our interpretation is also supported by two statutory
provisions.  Under section 1025(2)(E) employees may bring
grievances to employers and have those grievances adjusted
without the intervention of the bargaining agent, as long as the
adjustment is not inconsistent with any agreement that is in
effect and the bargaining agent has been given the opportunity 
to be present at grievance resolution meetings.19  Moreover,
section 1029(2) of the Act, which specifies who may file
prohibited practices complaints with the Board, states, in part: 

          2.  Complaints.  The university, any university
     employee, any university employee organization, the
     academy, any academy employee, any academy employee
     organization, the technical colleges, any technical
     college employee, any technical college employee
     organization, or any bargaining agent which believes
     that any person, the university, any university
     employee, any university employee organization, the
     academy, any academy employee, any academy employee
     organization, the technical colleges, any technical
     college employee, any technical college employee
     organization or any bargaining agent has engaged in or
     is engaging in any such prohibited practice may file a
     complaint with the executive director of the board
     stating the charges in that regard.   
    
While this provision cannot be taken literally, but rather should
be interpreted so as not to produce an absurd result,20 permitting
an individual bargaining unit member to bring a complaint
regarding an alleged unilateral change that directly affects him
hardly does damage to the apparent intent of this extremely broad
_________________________

     19In the case before us, AFUM, the bargaining agent, was
informed of the action and offered McGuire its assistance.  AFUM
did not request to intervene.    

     20No one would suggest, for instance, that academy employees
or bargaining agents have standing to complain about prohibited
practices committed by a technical college.

                              -16-

language.21

     Finally, as we have pointed out on numerous occasions,
unilateral changes inherently tend to interfere with, restrain
and coerce employees in the exercise of their collective bargain-
ing rights, and therefore violate section 1027(1)(A) and the
parallel provisions of Maine's other public sector collective
bargaining statutes.22  Employees may certainly bring (1)(A)
charges (and the University has not suggested otherwise).23  Thus,
there would be little point in making a (1)(A) - (1)(E) distinc-
tion, in connection with standing, that appears to have no firm
statutory basis.          

Merits
     Unilateral change
     The complainant charges that during the summer of 1993 the
University unilaterally changed its well-established practice of
paying double compensation plus a $500 preparation fee for summer
courses taught on ITV at UMA.  The University's defense to this
charge is that summer school teaching is not bargaining unit
work, and therefore the University is under no obligation to
bargain over it.  We reject the University's position and find
that an unlawful unilateral change occurred.

     The facts in connection with this charge are straight-
forward.  McGuire, the complainant, is a UMA faculty member
_________________________

     21Section 1029(2) also allows, at the Board's discretion,
intervention by any person (or organization) in prohibited
practice complaint proceedings, further suggesting an intent not
to foreclose individual employees from playing a major role in
the defense of their rights under the Act.   

     22The Law Court acknowledged this principle in Lane v. Board
of Directors of MSAD No. 8, 447 A.2d 806, 810 (Me. 1982).   

     23In any case, McGuire has brought charges under both (1)(A)
and (1)(E).

                              -17-

covered by the University-wide AFUM contract that expired on June
30, 1993.  That contract sets minimum base salaries for various
faculty ranks, and through yearly increases to be applied to the
overload compensation schedule, sets the minimum overload
compensation that can be paid.  University campuses are free to
pay higher overload rates, and individual faculty are free to
negotiate higher rates as well.  

     Academic-year faculty are eligible to teach summer courses.  
 Although summer teaching is not considered overload, the
overload compensation schedule is the minimum compensation that
can be paid for summer course teaching.  The campuses vary in
their summer course payment practices.  Although some campuses
regularly pay more than the minimum, UMA's general practice for
non-ITV summer teaching is to pay the minimum salary indicated on
the overload schedule, based on the rank of the faculty member
and the number of course credits.  

     During both the academic year and the summer, some courses
are offered state-wide and are taught on the University's ITV
system.  Since that system is run by UMA for the University, many
ITV courses originate at the UMA campus.24  As a result, some 70
ITV courses have been taught at UMA since 1989.  Prior to the
summer of 1993, with one or two exceptions,25 UMA always paid
_________________________

     24That is, they are taught live to UMA students and viewed
on ITV by students at other campuses.

     25While the provost estimated that there had been two to
four exceptions (six to ten, including the four at issue), he was
able to affirmatively testify on only one (Ron Norton), and
stated that Rudolf Snowadzky "may have been another case."  In
Ron Norton's case, the memorandum that he received memorializing
his agreement to teach his under-enrolled ITV course for single
compensation rather than double stated:  "Your agreement to this
arrangement rather than cancel the course should not be consi-
dered as precedent setting and is appreciated by me for the good
of our summer students." 

                              -18-

double compensation plus a $500 preparation fee for both overload
and summer courses taught on ITV.  Pursuant to its cancellation
policy for under-enrolled courses, some scheduled ITV summer
courses have been cancelled.        

     In the summer of 1993, four courses scheduled to be taught
on ITV looked as though they would be under-enrolled and there-
fore would be subject to the cancellation policy.  Although the 
faculty members scheduled to teach those courses had already been
offered, in writing, double compensation plus the preparation
fee, each was contacted regarding possible cancellation and given
the option of teaching the course for single compensation in lieu
of cancellation.  Each course remained under-enrolled by the
cancellation deadline, and each faculty member chose the single-
compensation option in lieu of cancellation.          

     As we have pointed out previously,   

          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 (P.E.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. 


  Lincoln, slip op. at 9.  In order for the employer's change to
be unlawful, it must (1) be unilateral; (2) be a change from a
well-established practice; and (3) involve a mandatory subject  
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 has been no suggestion that the change at UMA was not

                              -19-

unilateral, or that a well-established practice did not exist,
prior to the summer of 1993, of paying double compensation plus a
preparation fee for ITV overload and summer courses.26  Rather,
the University asserts that because summer school teaching is not
bargaining unit work, the University is under no obligation to
bargain over it.  We are not persuaded by any the reasons offered
for the University's position.  

     Article 24, section G, of the AFUM contract is most telling. 
It states:  

     Unit members shall be informed of summer session        
     and mini-session course opportunities within their      
     department, division or other appropriate unit.         
     Current practice regarding the assignments of these
     courses within the department, division or other
     appropriate unit shall be continued.  (Emphasis added)
     
     
There can be little doubt from this provision that the parties
understood summer session teaching to be bargaining unit work.

     Even in the absence of such a provision, the fact that some
summer courses are taught by people who are not in the AFUM
bargaining unit would not be dispositive.  It is not uncommon in
the public sector for employees in separate units to have access
to the same work, either by explicit agreement or by established
practice.  For instance, overtime work in police and fire
departments is often shared between supervisory and non-super-
visory unit employees.

     Nor does it matter that summer teaching is not part of the
_________________________

     26If, when the ITV system was initiated, UMA had decided to 
negotiate with each employee over what additional compensation,
if any, the employee would receive for teaching academic-year
overload or summer courses on ITV, that could have become the
practice.   

                              -20-

work year for academic-year appointees.  The work year, as used
in the AFUM contract, simply establishes when faculty must work. 
Surely a contract that offers overtime to employees, but does not
require it of them, does not turn that overtime work into non-
bargaining unit work.  Likewise with summer teaching.  

     Counsel's assertion that the University has never bargained
over summer session compensation is also irrelevant, even if it
is true.27  Parties may choose to bargain over some aspects of a
mandatory subject and not others.  The need for the Board's past-
practices policy in the first instance is premised on the fact
that parties do not (and practically, cannot) bargain over every 
aspect of the employment relationship that is subject to
bargaining.28  

     Finally, although we agree that McGuire could have rejected
the University's second offer, to pay him single compensation
instead of cancelling his course, we disagree that by accepting
that offer he cannot now be heard to complain.  At the time the
University first informed McGuire that his course would be
cancelled unless he agreed to teach for single compensation, he
informed the University that he would teach for single compensa-
tion but intended to file a grievance.  He reiterated his inten-
tion when he was later told that even if enrollment in his course
_________________________

     27Mr. D'Amico of the University testified that the minimum
salaries in the overload schedule are also minimum salaries for
summer teaching.  It was unclear whether those minimum summer
salaries are the result of established practice or explicit
agreement.

     28Ironically, counsel for the University argued at hearing
that because the University had paid more than the minimum
required, by paying single compensation plus $500, it had met its
collective bargaining obligations.  If summer teaching is not
bargaining unit work, how can there be a required minimum compen-
sation?     

                              -21-

reached 30 (the cancellation cutoff) after the cancellation
deadline, he would only receive single compensation.  McGuire was
simply following a venerable principle of labor law: "work now, 
grieve later."29         

     In sum, the evidence as presented to us shows that UMA
established a clear practice of compensation for summer and over-
load ITV courses, that practice being to pay double the compensa-
tion that it pays for a non-ITV summer or overload course, plus a
preparation fee of $500, for courses not cancelled due to under-
enrollment.  In the summer of 1993, it changed that practice
without bargaining, by paying single compensation, plus the
preparation fee, to four faculty who taught summer ITV courses.   
Accordingly, we will order the University to cease and desist
from making unilateral changes in the mandatory subject of ITV
compensation at UMA, in violation of 26 M.R.S.A.  1027(1)(A) and
(E) (Supp. 1993), and to post the appropriate notice.  In
addition, in order to effectuate the policies of the University
Act, we will order the University to restore the situation, as
nearly as possible, to that which would have obtained but for the
unlawful unilateral change.  Sanford Highway Unit v. Town of
Sanford, 411 A.2d 1010, 1016 (Me. 1980).  Thus, the University
will be ordered to reimburse McGuire for wages lost as a result 
_________________________

     29That he eventually decided to file a complaint with the
Board instead of filing a grievance does not change the fact that
the University was on notice that he was not waiving his right to
challenge the University's unilateral change.

                              -22-

of the unilateral change, plus interest.30   We decline to order
reimbursement to the other three faculty affected by the change,
since there is nothing in the record to indicate that they gave
McGuire the authority to represent them in this matter.   

     Course cancellation
     McGuire's second allegation is that the University cancelled
the course he was scheduled to teach in order to prevent him from
filing a grievance regarding the unilateral salary change, in
violation of section 1027(1)(A) of the University Act.  We
disagree.

     As the cancellation cutoff date for summer courses
approached in the summer of 1993, four faculty members were
informed of the low enrollments in their classes.  McGuire was
informed orally of that fact on May 14th.  He was also informed
that if the course was still under-enrolled by the cancellation
cutoff date, it would be cancelled unless he agreed to teach it
for single rather than double compensation.  He agreed.  On May
19th, after the May 18th cancellation deadline had come and gone,
McGuire's course was still under-enrolled, and he was asked
orally to "renegotiate" summer school.  On that same day he
received a memo stating:
_________________________

     30Interest 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 University has
complied with this order.  From July 1, 1993, to the present, the
short-term Federal rate has been 7 percent.  

                              -23-

     Please be advised that the BUA 230 (ENM) course for
     Summer Session, 1993 has been cancelled.  Please
     contact me if you would like to discuss renegotiation
     of your summer contract.    
     
Jon Schlenker, another of the four faculty whose courses were
under-enrolled, never received a memo "cancelling" his course.  
His memo simply contained the single compensation offer.  Nor did
the memo that Ron Norton received in 1991 cancel his course. 
Norton had already orally agreed to single compensation at the
time he received the memo.

     McGuire alleges that since he too had already agreed orally,
on May 14th, to single compensation, it was with the intention to
foil his grievance that on May 19th UMA cancelled his course and
offered to renegotiate, rather than simply offering single
compensation for his under-enrolled course.  If he declined to
renegotiate, the course would be cancelled and there would be
nothing to grieve.  If he agreed to "renegotiate" and accepted
single compensation, he'd be stuck with his own agreement.  

     There is a simpler explanation for Tomberlin's memo.  In our
estimation, it reiterates what McGuire had already been told, on
May 14th, would happen if his course remained under-enrolled on
May 18th:  It would be cancelled unless he agreed to teach it for
single rather than double compensation.  We are not surprised
that chairs of various departments/divisions at UMA drafted their
memos differently.  Nor are we surprised that Tomberlin did not
consider McGuire's May 14th oral agreement for single compensa-
tion a "done deal" without more.  First, UMA had already put
double-compensation offers in writing (some of which may already
have been accepted in writing).  Second, whether UMA was going to
pay single or double compensation hinged on whether McGuire's
course was still under-enrolled on the cutoff date; once that
contingency occurred, Tomberlin obtained McGuire's agreement to
teach for single compensation in writing.  (McGuire was not the

                              -24-

only faculty member whose agreement to teach for single
compensation was obtained in writing.  Jon Schlenker, who hadn't
threatened to file a grievance, also signed such an agreement.)  

     Finally, even if UMA had intentionally treated McGuire
differently, it would have been to prevent him from winning his
grievance, not to prevent him from filing it.  While it would be
a violation of the University Act to attempt to intimidate an
employee into foregoing his right to file a grievance, there is
nothing inherently intimidating or coercive about attempting to
elevate form over substance in order to cause an employee to lose
a grievance.   

     Attorney's fees
     In its answer to the complaint, as amended, the University
requested attorney's fees.31  McGuire argues that since the
University's request was without reasonable ground or purpose and
caused him to expend his own time and effort in order to respond
to the request, the University itself should be ordered to pay
attorney's fees in connection with that time.32

      On occasion, attorney's fees are granted to complainants in
accordance with the Board's authority to take affirmative action
to effectuate the policies of the University Act and Maine's
three other public sector collective bargaining statutes.      
26 M.R.S.A.  1029(3) (1988).  In its discretion, the Board has
reserved the award of attorney's fees for particularly egregious
statutory violations, since in those circumstances, a make-whole
remedy would not effectuate those policies unless it included
attorney's fees.
_________________________

     31At hearing, it dropped that request.

     32McGuire is licensed to practice in the state of Illinois
only.

                              -25-

     While it is unclear that the Board has the authority to
grant requests for attorney's fees by respondents,33 it is not a
settled matter.  In any case, as bargaining agents that practice
before us are aware, it is not unusual for boilerplate requests
for attorney's fees to appear in answers filed with the Board. 
That McGuire, who does not practice before this Board, found it
necessary to research the issue of attorney's fees is a price he
must pay for deciding not to use the services of his bargaining
agent and filing the complaint on his own.  His request for
attorney's fees will be denied.

                                   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.  1029 (1988 and
Supp. 1993) and the Board's Rules and Procedures, it is hereby
ORDERED:

     1.   That the University and its representatives and agents
shall:

     a.   Cease and desist from refusing to bargain and from      
          interfering, restraining and coercing members of        
          the AFUM bargaining unit who work at UMA by making      
          unlawful unilateral changes in the payment of wages for 
          summer ITV courses taught at UMA.
    
     b.   Take the following affirmative actions that are  
          necessary to effectuate the policies of the University
          Act:

          i.   Pay to Powers McGuire the sum of $2285.00, plus
               interest.  Payment shall be made within 20         
               calendar days of the date of issuance of this      
               decision and order.  
_________________________

     33The Board does have the authority to allocate full Board
costs to a complainant who files a frivolous complaint.  
26 M.R.S.A.  968(1) (Supp. 1993).   

                              -26-

          ii.  Continue to pay wages for ITV summer courses at
               UMA in accordance with established practice until
               such time as the University and AFUM agree
               otherwise or bargain in good faith to impasse.

          iii. Sign, date and post, within 10 calendar days of
               the date of issuance of this decision and order,
               at all locations where notices to AFUM bargaining  
               unit members who work at UMA are customarily
               posted, copies of the attached "Notice."  The
               Notice shall remain posted for two weeks.

          iv.  Notify the executive director, in writing, within  
               25 calendar days of the issuance of this decision  
               and order, of the steps that have been taken to    
               comply with this order. 


     2.  That the complainant's remaining allegation is
dismissed.

     3.  That the complainant's request for attorney's fees is
denied.


Issued at Augusta, Maine, this 4th day of April, 1994.   
         
                                MAINE LABOR RELATIONS BOARD


                                                                  
The parties are hereby          /s/________________________
advised of their right,         Peter T. Dawson
pursuant to 26 M.R.S.A.         Chair
 1029(7) (Supp. 1993), to
seek review of this decision
and order by the Superior       /s/__________________________
Court.  To initiate such a      Gwendolyn Gatcomb 
review an appealing party       Alternate Employee Representative
must file a complaint with
the Superior Court within
fifteen (15) days of the date  
of issuance of this decision    
and order, and otherwise        
comply with the requirements
of Rule 80C of the Maine Rules
of Civil Procedure.


Employer Representative Howard Reiche, Jr., filed a separate
opinion, dissenting in part.

                              -27-

                             OPINION

     I agree with my colleagues that McGuire has standing to
bring a failure-to-bargain charge of the type involved in this
case.  I do not agree that such a violation occurred.  AFUM and
the University negotiate minimum salaries for faculty members,
based on faculty rank.  Individual faculty members are then free
to negotiate better salaries for themselves.  It is this practice
of individual bargaining that I would look to in determining
whether an unlawful unilateral change occurred.  McGuire had an
individual teaching contract for the summer of 1993 that called
for payment of double compensation plus $500, unless the course
was cancelled.  When it became clear that his course was under-
enrolled and subject to cancellation, UMA offered to let him
teach the course for single compensation plus $500.  This new
offer exceeded the minimum summer compensation that had to be
paid, and therefore simply reflected the University practice of
bargaining with faculty over salaries in excess of established
minima.                


Issued at Augusta, Maine, this 4th day of April, 1994.


                                /s/__________________________
                                Howard Reiche, Jr.
                                Employer Representative          
                                

                              -28-
                                  

                       NOTICE TO EMPLOYEES

                POSTED PURSUANT TO AN ORDER OF THE
                   MAINE LABOR RELATIONS BOARD


AS A RESULT OF THE FILING OF A PROHIBITED PRACTICES CASE AGAINST THE
UNIVERSITY, IT HAS BEEN DETERMINED THAT THE UNIVERSITY HAS VIOLATED
THE LAW.  IN ACCORDANCE WITH OUR INTENTION TO COMPLY WITH THE
BOARD'S ORDER, YOU ARE NOTIFIED OF THE FOLLOWING:


     We will cease and desist from refusing to bargain and from interfering,     
     restraining and coercing members of the AFUM bargaining unit who work at  
     UMA by making unlawful unilateral changes in the payment of wages for      
     summer ITV courses taught at UMA.

     We will post this notice for two weeks.

     We will notify the Board of the date of posting and of compliance with its
     order.   



                                              University of Maine at Augusta

Dated:                                        _______________________________
                                              Richard J. Randall
                                              Provost




Any questions concerning this notice or compliance with its provisions may be
directed to:

                   MAINE LABOR RELATIONS BOARD
                     STATE HOUSE STATION 90
                      AUGUSTA, MAINE 04333
                         (207) 289-2015