STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-08
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)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY, MUNICIPAL, AND )
UNIVERSITY EMPLOYEES )
)
Complainant ) DECISION AND ORDER
)
v. )
)
THE UNIVERSITY OF MAINE, and )
THE BOARD OF TRUSTEES )
)
Respondents )
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The Teamsters Local Union No. 48 ("Local 48") filed a complaint on
August 3, 1978, and an amended complaint on September 18, 1978. Respondents
University of Maine and The Board of Trustees ("Trustees") responded on
August 15, 1978, including a motion to dismiss under Rule 4.03(A)(4) and Rule
4.06, CMR 12-180 4.03(A)(4), 4.06.
A pre-hearing conference was held on September 13, 1978, with Alternate
Chairman Donald W. Webber presiding, who issued a Pre-Hearing Conference Memo-
randum and Order on September 22, 1978, the contents of which are incorporated
herein by reference.
The Maine Labor Relations Board ("Board") conducted hearings on the
complaint in Augusta, Maine, on November 14, 1978, and January 1, 1979,
Chairman Edward H. Keith presiding, with Employee Representative Michael
Schoonjans and Employer Representative Paul D. Emery.
Local 48 was represented by Jonathan Axelrod, Esquire, and Gary F.
Thorne, Esquire; the Trustees by F. Paul Frinsko, Esquire. Both parties filed
briefs after the hearings.
At the start of the hearing, the complaint was clarified and accepted as
follows: paragraphs 1, 2, 3, and 6 from the amended complaint; paragraphs
4(a) through (f) as stated in the pre-hearing order; paragraphs 4(e) and (f)
from the amended complaint but redesignated 4(g) and (h); and paragraph 5 of
the amended complaint as amended in the pre-hearing order.
JURISDICTION
Jurisdiction of the Board lies in 26 M.R.S.A. 1029 and is not
challenged.
FINDINGS OF FACT
Upon review of the Pre-Hearinq Conference Memorandum and Order, the
exhibits, the testimony and the pleadings and contentions the Board finds
that:
1. Complainant Local 48 was certified as the bargaining agent for
the "University Police Unit" on August 1, 1977, and for the
"University Service and Maintenance Unit" on March 22, 1978.
26 M.R.S.A. 1022(1-B). The Trustees are the "university" as
represented by the "board of trustees" in accordance with 26
M.R.S.A. 1022(1-C)(10). The four other units in the Univer-
sity are listed in 26 M.R.S.A. 1024(1).
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2. An appropriations committee of the Trustees drew up an
employee compensation plan for the fiscal year beginning July
1, 1978, and submitted it to the Trustees. The plan called
for a cost-of-living ("COL") allowance equivalent to 4% and a
continuation of the "normal" 3 1/2% annual merit increase
plan for all classified employees including the two units
involved herein. The faculty and other professional staff
would receive a combined 6% salary increase.
3. The Board of Trustees met on May 24, 1978, and considered the
plan. It voted to approve the plan; it was also discussed
and decided that the package would be offered to the three
units with bargaining representatives: police, service and
maintenance, and faculty. Associate Vice Chancellor Sam
D'Amico testified that the decision to only offer it to the
represented units - and not to put it into effect - was made
for two reasons: because the Trustees objected that the bar-
gaining agents would want more, and also because the
employees in these units were represented by bargaining
agents. He also testified that there "were things that
aren't in the record here that were better not said . . ."
which related to the union indirectly. There were some
statements made by individual trustees such as why public
employees would join unions. D'Amico, however, did not con-
sider this anti-union. He also stated that there has been an
official policy of neutrality by the Trustees in the union
elections.
4. D'Amico then mailed a letter to Local 48 International
Trustee Richard Peluso dated May 26, 1978, in which he
offered on behalf of the Trustees the 4% COL/3 1/2% merit
plan proposal being put into effect for the unrepresented
units. The offer was conditioned, however, on Peluso's agree-
ment to this package as the "total compensation improvements,
for the twelve months beginning on July 1, 1978." Peluso
responded on June 1, 1978, and rejected the conditioned offer.
He stated, however, "that the increases should be implemented
and whatever we agree to in negotiations would be given in
addition." D'Amico rejected this idea. No agreement had been
reached by the end of the hearing. The faculty unit bargain-
ing agent, which had been certified ten days earlier, accepted
the offer made to them consistent with the Trustees' compensa-
tion plan.
5. On July 1, 1978, the Trustees terminated the merit increase
plan for members of the two Local 48 units, and put the COL
increases into effect for all its employees except for members
of the two Local 48 units.
6. For classified employees of the university, there are seven
wage steps in each wage classification. Advancement up these
steps (3 1/2% per step) takes place based on an annual merit
performance review. An employee whose review is successful
moves up to the next step until he reaches the highest step.
7. During the first six months, the employee is considered
"probationary." Employees retained as permanent employees
are placed on the first step of the wage band and become
eligible for the discretionary merit increase on annual
anniversaries of this permanent employment date. The Trustees
did pay the 4% COL to probationary employees, however, based
on the fact that with less than 6 months of employment they
were not part of the bargaining units. See 26 M.R.S.A.
1022(1-c)(11)(D).
8. This merit plan has been in effect since 1973, and had been
applied continuously from that time excluding the 7/1/75 -
6/30/76 period when the Legislature had made no funds availa-
ble. The minutes of the Joint Session of the Personnel and
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Employee Relations and Finance Committees of the Trustees
for a May 23, 1978, meeting referred to this as the "normal
step increase." Obviously, employees at the top step level
are not eligible for this increase.
9. Some supervisors reported to bargaining unit members that
they were not receiving the COL or merit increases because
they were in units with bargaining agent representation.
10. The COL increases had varied greatly over the years. There
was a 3% increase in 1973; 5% or $8/wk. whichever is greater
in 1974; none in 1975; 5% in 1976; and $8/wk. in 1977.
11. Robert A. Pardue is one of six security guards at the
Portland campus. There are no university police officers at
this campus. In contrast, there are only university police
officers and no security guards at the Orono campus. On
August 23, 1977, Pardue submitted a request for reclassifica-
tion to the higher paying position of university police
officer. The issue was reclassification of individuals based
upon duties actually performed to the police officer classifi-
cation, not that Security Guard II itself should be in a
higher wage croup.
12. The University Classified Employee Handbook states that
"[r]eclassification is an evaluation of the duties and nature
of a position and not an evaluation of the employee filling
the position." It sets forth an entire procedure. After
gathering facts, the Personnel Policy Review Committee
("PPRC") makes a recommendation to the Vice President for
Finance and Administration (Walter Fridinger) for review and
decision. Pardue followed this procedure. On February 16,
1978, the PPRC voted unanimously (eight voting) to recommend
reclassification of Pardue (and another employee who had
filed a similar request) "as the percentage of times and
functions performed were consistent with those listed in the
Police Officer Job Description."
13. On March 16, 1978, Vice President Fridinger denied the
reclassification request based on the reasons that campus
budgetary limitations precluded providing police service at
the Portland campus and that there were two major differences
in the police and security guard positions, i.e., that the
latter is not expected to deal with the protection of life or
the apprehension of violators. In a letter to Pardue dated
June 27, 1978, Fridinqer added the reason that there was an
additional education factor of "1-2 years of additional formal
schooling (after high school) or equivalent years of experi-
ence." He conceded, however, that this was an afterthought to
his decision.
14. Around this time, Pardue also applied for a police officer
vacancy on the Gorham campus. Charles LaRue, another univer-
sity employee, however, was given the position.
15. Pardue appealed both these adverse decisions to the Classified
Employees Grievance Board ("CEGB"). The CEGB denied both
appeals on August 23, 1978.
16. Vice President Fridinger testified that he would prefer to
have police at both campuses, but that for now the Portland
campus would have to rely on the Portland Police Department
to answer calls from the dispatcher at the campus initiated
by the security guards who are in two-way communication with
the dispatcher. This is so because security guards have no
special arrest of search powers and are similar to citizens
in this respect. There was much argument concerning whether
this arrangement was unwise, impractical, or untenable.
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17. Fridinger testified that he has never used budgetary factors
in deciding a reclassification case involving only one
individual, but that he could when a group was involved as
in this case where he understood that five of the six
security guards would have to be reclassified to police
officer if Pardue's request was granted.
18. Director of Police & Safety Horatio Quinn interviewed Pardue
and LaRue who were the only two internal applicants. LaRue
was a part-time, permanent University police officer. He
had Army military police experience and training, an
associate degree in law enforcement, and part-time municipal
police officer experience. Pardue had experience as a
security guard and part-time municipal police officer
experience. Quinn offered the job to LaRue, who accepted.
19. In February and March, 1977, Pardue, LaRue and others had
picketed Payson Hall on behalf of Local 48. The administra-
tion was aware of this but made no comment.
DECISION
Local 48 urges that the Trustees have violated the University of Maine
Labor Relations Act ("Act"), 26 M.R.S.A. 1027)1)(E), by unilaterally denying
members of the police unit and the service and maintenance unit annual merit
increases due on or after July 1, 1978. Complainant also urges that the
Trustees have violated 26 M.R.S.A. 1027(1)(B), (D) and (E) by unilaterally
changing established policy in denying Ronald Pardue a reclassification from
"security guard II" to "police." Although not argued in the post-hearing
briefs, the complaint also alleges that Pardue was not selected for a police
job vacancy in violation of these provisions.
The Trustees argued that they discontinued the merit increase plan in
accordance with what the law required and that there was no bad faith
involved. The Trustees also argued that the reclassification decision is one
that is made without regard to the specific person(s) then filling the
position and is completely discretionary. They add that there is no evidence
that the Trustees have changed the procedures at all regarding reclassifi-
cation. Finally, they point out that job applicant selection is a management
decision which is not subject to review by this Board.
We conclude that the Trustees have committed a per se violation of 26
M.R.S.A. 1027(1)(E) by unilaterally discontinuing the established wage and
working condition of the anniversary-date merit increase plan without first
negotiating this change with Local 48 as required by 26 M.R.S.A. 1026(1)(C).
We also conclude that the complaint regarding Mr. Pardue should be dis-
missed because there has been no change of reclassification or employee
selection policy and because there is no evidence of prohibited
discrimination.
I.A
It is a per se violation of the duty to bargain in good faith for an
employer to make a unilateral chance in a mandatory subject of bargaining
during the life of a collective bargaining relationship. We have held so on
numerous previous occasions, e.g., Easton Teachers Association v. Easton
School Committee, MLRB No. 79-14 (1979), at page 3; Maine State Employees
Association v. State of Maine, MLRB No. 78-23 (1978),
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although this is the first occasion to apply this standard under the University
Act.[fn1] A unilateral change is in effect a refusal to bargain in fact and
thus the issue of good faith is not necessarily reached in a per se violation.
All concede that a merit increase plan is a mandatory subject of bargain-
ing. See, N.L.R.B. v. Katz, 369 U.S. 736, 82 S. Ct. 1107 (1962). In addi-
tion, there is no question but that the Trustees' action was unilateral. The
Trustees do not claim that an impasse was reached. See Maine State Employees
Association, supra. Even if there was an impasse, the Trustees did not
institute their last best offer. See, Easton Teachers Association, supra, at
page 4n.2 and page 8.
The crux of the decision, therefore, is whether the termination of the
merit increase plan constituted an impermissible "change" in the status quo.
The answer begins with the Board's decision in the Easton case.
In Easton we concluded that upon expiration of a contract, the status quo
should be maintained as if the existing conditions were frozen at the time of
contract expiration rather than to give effect to a "built-in wage escalator."
In short, we adopted a static view of the status quo for the post-contract
period. We therefore directed that actual wage levels be frozen at the time
of contract expiration.
While the merit increase policy under consideration here operates as a
wage escalator, we conclude that a dynamic view of the status quo should be
used in the period before the initial contract. Such a review results in the
conclusion that the termination of the merit increase policy after bargaining
agent certification constitutes an impermissible change in the status quo
regarding wages and working conditions and thus a prohibited practice.
Sound policy reasons support the different view in the pre-contract
period. First, unlike expiring contract provisions, the employees have not
had the opportunity to bargain over or agree on wages and working conditions
prior to certification. Conditions had been set purely by management policy.
Thus there also could be no understanding or agreement on a termination date
at which point wage levels might be frozen in the future.
In addition, it often takes months for a newly-certified bargaining agent
to even formulate its initial bargaining proposals, and potentially years to
negotiate an initial contract. In contrast, bargaining on successor contracts
takes place during the term of an existing contract and usually involves fewer
issues, or simply proposed chances in the existing contract. It would be
harsh and unfair to employees, and a windfall to employers, if clear, auto-
matic wage escalator provisions were terminated at the time of bargaining
agent certification.
In any event, the Trustees' decision to terminate the merit increase
plan on July 1, 1978, is an impermissible change under both views of the
status quo. Even under the static view, the wage level would have had to
have been frozen at the time of union certification for it not to constitute
a change of the status quo. This is
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1 The key provisions of the University Act, 26 M.R.S.A. 1027(1)(E) and
1026(1), are nearly identical to the counterpart provisions of the Municipal
Public Employees Labor Relations Act, 26 M.R.S.A. 964(1)(E) and 965(1),
and the State Employees Labor Relations Act, 26 M.R.S.A. 979-C(1)(E) and
979-D(1).
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not the case: the police unit was certified on August 1, 1977, the service
and maintenance unit on March 22, 1978. Thus the merit increase plan was
continued respectively for nine and three months after certification before
being terminated.
In summary, since the merit increase policy is a mandatory subject of
bargaining, it cannot be unilaterally changed. The only issue thus was
whether it was changed on July 1, 1978. We consider it a change through a
dynamic view of the status quo. It is also a change even under a static view.
We thus find a per se violation of 26 M.R.S.A. 1026(1)(C) through 26
M.R.S.A. 1027(1)(E). We order a remedy whereby employees are restored to
the status quo prior to the prohibited practice.
I.B
While we had no difficulty in concluding that the merit increase plan was
a wage and a working condition because of its continuation over the past few
years, in contrast we find that yearly across-the-board wage increases,
loosely referred to as "cost of living" ("COL") increases, do not constitute
a working condition.[fn]2
We do not need to reach this point because it was not argued by Local 48
in its brief, although alleged in the complaint. We reach it, nonetheless,
in order to elucidate what would qualify as a working condition. This varied
series of increases, see finding of fact #10, does not so constitute a working
condition because it is not a consistent or automatic increase plan.
II
There is absolutely no evidence that action taken with respect to Ronald
Pardue's reclassification request or police vacancy application was motivated
by or inherently had the effect of discriminating against him in violation of
26 M.R.S.A. 1027(B) or (D). We note in particular that the person hired for
the police vacancy was also a union activist. These charges are therefore
dismissed.
Local 48 has argued that the Trustees' policy of having security guards
at one of its campuses without university police is untenable and impractical.
Our opinion regarding these claims would only be relevant if the policy raised
an inference of impermissible motive. The policy does not raise such
inference. We note that Vice President Fridinger would change the policy if
it was within his power. Short of an extreme situation, the degree of wisdom
of university policies has nothing to do with this Board's mandate.
Local 48 has also argued that the Trustees violated 1027(E) when they
unilaterally changed the standard policy and guidelines regarding reclassifi-
cation requests by failing to follow these guidelines in Pardue's case. It
also argues that the reclassification request was arbitrarily denied based on
budgetary restraints.
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2 Although not alleged in the complaint, we note that new employees were
paid at a rate which included the COL raise which was withheld from the bar-
gaining unit members. (See January 16, 1979, transcript at pages 7-8, 35-36,
38, and 53-54.) This is a violation of 26 M.R.S.A. 1027(1)(E) as described
in 1026(1)(C). See Lake Teachers Association v. Mount Vernon School
Committee, MLRB No. 78-15 (1978). This violation was not alleged in the
complaint.
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Complainant has not established a change in policy, however, and this charge
is therefore also dismissed.
There is simply no evidence either that budgetary reasons are not
appropriate factors in the reclassification decisions made by Vice President
Fridinger or that such reasons have not been used in the past in similar
situations.
III
The Trustees' motion to dismiss is denied. The complaint is clear and
concise enough to apprise the respondents of the issues of the case.
ORDER
On the basis of the foregoing findings of fact and pursuant to the powers
granted to the Maine Labor Relations Board by the University of Maine Labor
Relations Act ("Act"), 26 M.R.S.A. 1O29, it is ORDERED:
1. That the complaint regarding the reclassification and promotion
of Ronald Pardue is dismissed.
2. That respondents, University of Maine and the Board of Trustees,
its members, agents, successors or assigns shall:
(a) Cease and desist from making unilateral changes in
wages, hours, working conditions or grievance arbi-
tration without first negotiating such changes with
the complainant, particularly with respect to merit
increase plans; and
(b) Take the affirmative action designed to effectuate
the policies of the Act of making whole the public
employee members of the university police unit and
the university service and maintenance unit for the
monetary loss they have suffered as a result of the
termination of the merit increase plan on July 1,
1978, by paying them the money they would have
received if the policy had been continued plus
legal interest until the execution of a new con-
tract, decertification of the bargaining agent, re-
institution of the policy, or to the point of bona
fide impasse, whichever occurs first, less any money
received in settlement of this issue. In the event
of impasse, respondents have the option of institut-
ing their best offer.
Dated at Augusta, Maine, this 29th day of June, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Edward H. Keith, Chairman
/s/________________________________________
Michael Schoonjans, Employee Representative
/s/________________________________________
Paul D. Emery, Employer Representative
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