STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-18 Issued: January 12, 1999 _____________________________ ) ASSOCIATED FACULTIES OF THE ) UNIVERSITY OF MAINE SYSTEM, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) BOARD OF TRUSTEES OF THE ) UNIVERSITY OF MAINE SYSTEM, ) ) Respondent. ) _____________________________) The question presented in this prohibited practice complaint is whether the Board of Trustees of the University of Maine System (hereinafter "the University") is obligated to bargain with Associated Faculties of the University of Maine System ("AFUM") about a new requirement that faculty members pay membership fees for use of on-campus fitness and recreational facilities. Consistent with previous decisions, we hold that the University is not required to negotiate this subject, and we dismiss the complaint. AFUM filed this complaint on June 1, 1998, alleging that the University unlawfully refused to bargain with AFUM when it imposed the membership fees on AFUM members at the University of Southern Maine, effective January 1, 1998, without prior discussion or negotiation with AFUM. The University filed a timely response to the complaint in which it denies that its conduct violated the University of Maine System Labor Relations Act ("the Act"), and requests that the complaint be dismissed for failure to state a claim. A prehearing conference was conducted by Chair Peter T. Dawson on September 10, 1998. The Prehearing Conference Memorandum and Order dated September 14, 1998, is incorporated herein and made a part of this Decision and Order. An evidentiary hearing was conducted on December 7, 1998, by Peter T. Dawson, Chair; Karl Dornish, Jr., Employer Representive; -1- and Gwendolyn Gatcomb, Employee Representative. AFUM was represented by F. Stewart Kinley, AFUM Director; the University was represented by F. Paul Frinsko, Esq. AFUM was provided full opportunity to examine witnesses, introduce documentary evidence and present oral argument. At the close of the presentation of AFUM's case-in-chief, the University renewed its request of the Board to dismiss the complaint. The Board determined that the complaint should be dismissed at that juncture, and announced its decision to the parties. This Decision and Order provides the basis for the Board's determination. JURISDICTION The jurisdiction of the Board to hear this case and to issue a decision and order lies in 26 M.R.S.A. 1029(4) (1988 & Supp. 1998). No objection has been raised to the Board's jurisdiction. FINDINGS OF FACT Upon review of the entire record the Maine Labor Relations Board finds the following facts: 1. Associated Faculties of the University of Maine System ("AFUM") is the certified bargaining agent, as that term is defined at 26 M.R.S.A. 1022(1-B), for a bargaining unit of full-time faculty members employed at the Gorham and Portland campuses of the University of Southern Maine ("USM"). 2. The Board of Trustees of the University of Maine System ("the University") is the employer of the employees represented by AFUM and is expressly subject to the provisions of the Act. See 26 M.R.S.A. 1022(10). 3. In 1996 the student senate supported an increase in student recreation fees to improve and renovate USM facilities, so long as the cost of operating and maintaining facilities was shared with the constituencies who use them. The President of USM, Richard L. Pattenaude, formed the "Fee for Use Committee" to respond to the cost-sharing issue raised by the student senate. -2- The decision to charge for the use of these facilities was the result of the Committee's research of other universities across the country, and its determination that USM was among a small group of schools which did not charge for the use of such facilities. 4. On December 2, 1997, President Pattenaude issued a written announcement to the "University Community" that fees would be charged to all persons who use on-campus recreational facilities, including faculty members, students, staff, alumni, spouses, families, friends and the general public. President Pattenaude announced that the Committee's recommended fee structure would be adopted and implemented as of January 1, 1998. A brochure which describes the facilities and outlines the new fee structure was sent to faculty members on or about January 1, 1998. The fee for faculty members is $75 for a yearly membership, and $30 for a semester. 5. Prior to January 1, 1998, faculty members of USM who used on-campus recreational facilities were not charged a fee to access the facilities. 6. AFUM was not invited to participate on the Fee for Use Committee. The University implemented the fee-for-use policy without discussion with or notification to AFUM. 7. AFUM and the University were engaged in contract negotiations during the spring of 1997. The subject of recreational facilities fees was not negotiated. 8. In January, 1998, Associate Professor William Steele, the Co-President of AFUM's USM chapter, filed a grievance protesting the imposition of the recreational facilities fee. The University denied the grievance at every step of the grievance procedure which precedes arbitration.[fn]1 In February, ____________________ 1 AFUM did not file a request for arbitration of this issue. -3- 1998, AFUM Director Stewart Kinley requested that the University engage in bargaining over the issue. The University's Director of Labor Relations responded to Mr. Kinley that, although he was of the opinion that the issue of recreational facilities fees is a non-mandatory subject of bargaining, he would be willing to arrange a meeting with AFUM to discuss the matter. 9. University officials met with AFUM representatives in May, 1998. AFUM representatives requested that the University roll back the fee increase to the pre-January 1, 1998 level, reimburse all faculty who had paid the fee, and immediately commence bargaining over the issue. University officials were neither willing to discontinue the fee nor to engage in bargaining over the issue.[fn]2 10. It would be inconvenient and comparatively expensive for faculty members to use private gyms and fitness studios, rather than make use of on-campus facilities. Inconvenient, in that there is a scarcity of available parking at USM campus and, if a faculty member were to leave the campus mid-day to use an off- campus facility, and return to the campus to finish out the work day, it would be difficult to find a parking place. Expensive, in that the average fee at private fitness facilities is at least $30 a month. 11. The number of faculty members employed at the Gorham and Portland campuses is unclear from the record. From January 1, 1997, through May 31, 1997, 51 faculty members used the Sullivan Gymnasium facilities in Portland. From January 1, 1998, through May 18, 1998, 41 faculty members used the Sullivan Gymnasium. Since January 1, 1997, 25-30 staff members (including faculty) used the Fitness Center facility in Gorham; 57 memberships have ____________________ 2 At a later meeting, the University shared information obtained by the Fee for Use Committee related to fees charged by other colleges for access to on-campus recreational facilities. AFUM does not contend that the fees are unreasonable, but objects to the University's unilateral implementation of them. -4- been sold to faculty, staff and their family members since institution of the fee. DISCUSSION The University of Maine System Labor Relations Act requires the University and AFUM to negotiate in good faith with respect to "wages, hours, working conditions and contract grievance arbitration." 26 M.R.S.A. 1026(1)(C). A corollary to this duty to negotiate is the prohibition against the University making unilateral changes in these mandatory subjects of bargaining. Teamsters Local Union No. 48 v. University of Maine, Nos. 78-16 and 78-20, slip op. at 5 (Me.L.R.B. June 29, 1979). Since there is no question that the University instituted the fee-for-use policy without first negotiating the matter with AFUM, we must determine whether this topic is a mandatory subject of bargaining. Our long-standing test for determining the mandatory negotiability of a proposal is whether that proposal is significantly related to wages, hours, working conditions or contract grievance arbitration. Coulombe v. City of South Portland, No. 86-11 (Me.L.R.B. Dec. 29, 1986); MSEA v. Me. Dept. of Inland Fisheries & Wildlife, No. 85-02, slip op. at 12 (Me.L.R.B. Jan. 17, 1985); rev'd on other grounds Me. Dept. of Inland Fisheries and Wildlife v. MSEA, CV 85-51 (Ken. Cty. Sup. Ct. June 28, 1985) (private, non-commercial use of state vehicles "relates to the working conditions" of employees and is, there- fore, a mandatory subject of bargaining); Portland Firefighters v. City of Portland, No. 83-01, slip op. at 4 (Me.L.R.B. June 24, 1983); aff'd 478 A.2d 297 (Me. 1984) (a bargaining proposal is a mandatory subject of bargaining if it is "significantly and materially related to" wages, hours, working conditions and contract grievance arbitration). We have previously addressed the scope of the mandatory subject of "working conditions" in a case involving these same parties. In AFUM, et al. v. University of Maine, et al., Nos. -5- 82-15, 82-16 and 82-22, slip op. at 11 (Me.L.R.B. Sept. 27, 1982), we held that a topic must "significantly or materially affect the terms or conditions of employment" in order to fall within the ambit of "working conditions." AFUM contends that unilateral imposition of a charge to faculty for the use of on-campus recreational facilities at USM materially and significantly affects the terms and conditions of a faculty member's appointment. We are not persuaded by the evidence that this is the case. In the previous AFUM v. University case noted above, the Board determined that an increase in parking fees was a mandatory subject of bargaining, while an increase in locker rental fees was not. Factors weighing heavily in the Board's determination that the increase in parking fees fell within the ambit of working conditions and was, thus, a mandatory subject of bargaining were that: (i) an overwhelming majority of bargaining unit employees drove to work in their own vehicles and parked in the University's parking areas; (ii) a serious parking shortage existed on campus; and (iii) there was scarce alternative off- campus parking available. On the other hand, the Board determined that the increase in locker rental fees was not a mandatory subject because: (i) the use of lockers was limited to non-working time and was a convenience to those who wished to avail themselves of the recreational facilities; and (ii) athletic locker use was not limited to bargaining unit employees, but was available to the general public. The Board determined that "[u]nlike the parking situation . . . there is no inherent need for University employees to use the athletic lockers." AFUM v. University, slip op. at 11. We find the topic of faculty user fees for on-campus recreational facilities to be more like locker rental fees than parking fees. There is no inherent need for faculty members to use on-campus recreational facilities. The facilities are open to the general public and used by faculty members during non- -6- working hours for their convenience. Moreover, AFUM has not established nor attempted to argue that any relationship exists between the fee for use of these facilities and the working conditions of faculty members. Nothing in the record except, perhaps, an off-hand comment by one of the witnesses,[fn]3 tends to establish a relationship between use of the facilities and employment as a faculty member. On the other hand, if at some time in the future use of the fitness facilities became a requirement for continued employment as a faculty member, or was presented as a benefit in lieu of wages, a better case might be made that this topic of fees significantly or materially affects the wages or working conditions of faculty members. Although the evidence presented does establish that free access to the facilities was a longstanding benefit of significant value,[fn]4 it failed to establish, as in the case of parking fees, that an overwhelming majority of bargaining unit employees must use the facilities in order to perform their duties at the University. The University was not required to raise the issue of fees-for-use during the negotiation sessions for a successor contract in the spring of 1997, nor was it required to confer and negotiate with respect to this issue after the contract was signed and prior to implementation of the fee structure. Even though free access to the facilities was a longstanding benefit of significant value, it is a non-mandatory (or "permissive") subject which the University was not obligated ____________________ 3 In his response to the question whether use of the facilities was limited to non-working hours, Associate Professor Steele remarked: " . . . obviously when they're in the gym they're not working, unless you take the philosophical point that working the body is as important as working the mind if you want to have a well-adjusted faculty member, a person who feels good about herself, himself, in front of a classroom both physically and mentally." 4 Beyond the fact that membership fees for private fitness facilities can be expensive, one of AFUM's witnesses testified that he must exercise regularly for health reasons. We do not question the witness's need to use the facilities; however, his need arises because of his physical condition, not because he is a member of the faculty at USM. -7- to bargain about.[fn]5 We conclude from the record evidence that the University's unilateral implementation of a fee for faculty use of on-campus fitness facilities, a non-mandatory subject of bargaining, did not constitute a violation of 26 M.R.S.A. 1026(1)(C). ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 1029 (1988 & Supp. 1998), it is hereby ORDERED that the complaint filed by the Associated Faculties of the University of Maine System on June 1, 1998, against the Board of Trustees of the University of Maine System is hereby DISMISSED. Dated at Augusta, Maine, this 12th day of January, 1999. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right pursuant to 26 M.R.S.A. 1029(7) (1988 & /s/___________________________ Supp. 1998) to seek review of Peter T. Dawson this decision and order by the Chair Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within /s/___________________________ fifteen (15) days of the date Karl Dornish, Jr. of issuance of this decision Employer Representative and order, and otherwise comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. /s/___________________________ Gwendolyn Gatcomb Employee Representative ____________________ 5 This would be the case even if the topic had been negotiated and included in previous collective bargaining agreements. Reaching agreement on a permissive subject does not transform that topic into a mandatory subject of bargaining for successor collective bargaining agreements. Sanford Federation of Teachers v. Sanford School Committee, No. 84-13, slip op. at 4 (Me.L.R.B. March 20, 1984). -8-