STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 98-18
Issued: January 12, 1999
_____________________________
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ASSOCIATED FACULTIES OF THE )
UNIVERSITY OF MAINE SYSTEM, )
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Complainant, )
)
v. ) DECISION AND ORDER
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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;
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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.
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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,
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1 AFUM did not file a request for arbitration of this issue.
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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.
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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.
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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-
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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
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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.
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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
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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).
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