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