Maine State Employees Association v. Maine Department of Inland Fisheries and Wildlife and State of Maine, No. 85-02, 8 NPER ME-16010 (Jan. 17, 1985), vacated, Maine Department of Inland Fisheries and Wildlife v. Maine State Employees Association, No. CV-85-51 (Me. Super. Ct., Ken. Cty.), aff'd., 503 A.2d 1285 (Me. 1986) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-02 Issued: January 17, 1985 _______________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) ) MAINE DEPARTMENT OF INLAND FISHERIES ) DECISION AND ORDER AND WILDLIFE ) ) and ) ) STATE OF MAINE, ) ) Respondents. ) _______________________________________) The question presented in this prohibited practices case is did the Maine Department of Inland Fisheries and Wildlife and the State of Maine (hereinafter referred to together as "State") unilaterally change the motor vehicle use policy, for certain employees of the Department of Inland Fisheries and Wildlife, in violation of the stat- utory duty to bargain. We find that, on and after September 11, 1984, an impermissible unilateral change has occurred, and order an appro- priate remedy. The Maine State Employees Association ("Union") filed the prohib- ited practices complaint in this matter on June 29, 1984, alleging that the State had unilaterally changed employee wages, hours, and working conditions by prohibiting certain use of motor vehicles owned by the State by certain employees of the Department of Inland Fisheries and Wildlife. The State filed an answer on July 23, 1984, denying that it had made any unilateral changes in the terms and con- ditions of employment and averring that the changes which were made were required by an Act of the Legislature and that the State's response to said enactment was expressly allowed by the two relevant collective bargaining agreements between the parties. The statute under which this case arises is the State Employees Labor Relations Act, 26 M.R.S.A. Sec. 979, et seq. ("Act"). -1- A pre-hearing conference on the case was held on August 14, 1984, Alternate Chairman Donald W. Webber presiding. On August 17, 1984, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on this matter was held on September 27, 1984, Alternate Chairman William M. Houston presiding, with Alternate Employer Repre- sentative Carroll R. McGary and Alternate Employee Representative Russell A. Webb. The Union was represented by John R. Lemieux, Esq., and the State by Susan Farnsworth, Esq. The parties were given full opportunity to examine and cross-examine witnesses, to introduce evi- dence, and to make argument. Both parties filed post-hearing briefs which were considered by the Board. JURISDICTION The Maine State Employees Association is the certified bargaining agent, within the meaning of 26 M.R.S.A. Sec. 979-H(2) (Supp. 1983-84), for the State employee Supervisory Services and Law Enforcement Service bargaining units. The Maine Department of Inland Fisheries and Wildlife and the State of Maine together are the public employer, defined in 26 M.R.S.A. Sec. 979-A(5) (Supp. 1983-84). The jurisdiction of the Maine Labor Relations Board ("Board') to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Sec. 979-H(2) and (3) (Supp. 1983-84). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. The Maine State Employees Association is the certified bargaining agent, as defined in 26 M.R.S.A. Sec. 979-A(l) (Supp. 1983-84), for the State employee Supervisory Services and Law Enforcement Serv- ices bargaining units. 2. The Maine Department of Inland Fisheries and wildlife and the State of Maine together are the public employer, as defined in 26 M.R.S.A. Sec. 979-A(5) (Supp. 1983-84), of all of the employees whose positions are included in the bargaining units mentioned in the pre- -2- ceding paragraph. 3. The relevant portions of Article XXXVII, "State Vehicles and Equipment," in the 1982-1983 collective bargaining agreements, between the State and the Union for the bargaining units noted in paragraph 1 above, stated: "3. Use of vehicles while on duty status: (a) Members of the bargaining unit, while on duty, are authorized to transport members of their immediate family within their assigned area. (b) Members of the bargaining unit may use their assigned motor vehicles for personal errands within their assigned area while on duty. (c) Transportation, while on duty, for a member of his/her immediate family, beyond the member's assigned area or station, shall require prior permission from his/her immediate super- visor." "4. Use of vehicles when not on scheduled duty status: (a) No State vehicle shall be used outside a member's assigned area when the member is not on scheduled duty status without prior approval from the appropriate appointing official or his/her designee,. (b) Whenever a State vehicle is used by a member during a non-duty status, the member must assume an 'on-duty' status for communication and operational purposes. (c) Expenses incurred for gasoline, oil and other costs as the result of using a state vehicle under this section 4 shall be borne by the member involved. (d) The use of State vehicles within the provisions of this section 4 shall be restricted to occasions that involve necessary personal bus- iness or emergencies. Such use shall be kept to an absolute minimum." In the agreement for the Supervisory Services unit, the two paragraphs cited are numbered 4 and 5, rather than 3 and 4, as they are designated in the Law Enforcement Services unit agreement and as -3- they appear above. 4. In addition to the requirement of assuming "on-duty" status for communication and operational purposes when the unit employees were not on scheduled duty status, the Department of Inland Fisheries and Wildlife's Policies and Procedures also required said employees to carry identification and to have a firearm in their possession. Said Policies and Procedures defined the term "assigned area," outlined the officials whose permission was needed to travel beyond said zone, and provided that "[t]he phrase 'necessary personal business' shall not be interpreted to mean a commercial venture." 5. When they were in State vehicles but were not on scheduled duty status, the Game Wardens were available for and did respond to radio complaints about alleged violations of law within their assigned area and answered calls for assistance from Wardens and other law enforcement personnel. During these same periods, the Wardens investigated any violations of law which they observed and provided the appropriate law enforcement response thereto. 6. On August 30, 1982, the Union demanded negotiations with the State, with respect to the wages, hours, and working conditions of the employees in the two units mentioned in paragraph 1, supra, for suc- cessor agreements to the 1982-83 collective bargaining agreements. 7. Shortly after August 30, 1982, the State and the Union engaged in collective bargaining for successor agreements to the 1982-83 collective bargaining agreements for the two units noted in paragraph 1 above. Said negotiations proceeded through mediation, fact-finding, and interest arbitration and, ultimately, resulted in successor collective bargaining agreements. The successor agreements which were ratified by the Union's membership and by the Legislature and became effective on September 11, 1984. 8. On September 7, 1983 the Legislature enacted Chapter 588 of the Public Laws of 1983. That Legislation was signed by the Governor on September 15, 1983 and became effective on January 1, 1984. The Law, which applied only to the Department of Inland Fisheries and Wildlife, provided, in relevant part: "No employee may use any -4- department equipment or vehicles for other than official business." 9. The Legislative Record, reporting the House and Senate debate over the Act mentioned in the preceding paragraph, contained unre- butted statements by Representative Phyllis R. Erwin and Representative Maynard G. Conners. Those remarks indicated that, although the Legislature was aware of alleged abuses in the Wardens' non-official use of State vehicles, some private uses were allowed by the appli- cable collective bargaining agreements and the Legislature was not changing the practices permitted in said agreements. During the relevent Senate debate, Senator Charles P. Pray stated: "Mr. President and Ladies and Gentlemen of the Senate, this Bill as is common in late hours of any legislative session was drafted rather quickly and rather late in the evening last night, due to that I think that there are some ambiguities in the language that we will not (sic) be enacting. I think that it is necessary to add some remarks to the Legislative Record to clarify those ambiguities . . . "If I could call the Senate's attention to the Bill, and on paragraph 6 on page 3 of the Bill simply gives the Commissioner the same authority to regulate the use of vehicles and equipment that other Commissioners have under their respective statutes. It does not prohibit personal use vehicles during the time when a warden is on duty or when he is available for duty and is signed in with the Department. Many of you who are familiar, a number of game wardens are located in the rather rural, unorganized territories of the State and basically they are on-call twenty-four hours a day. "It is not intended to arrogate (sic) any rights concerning the use of vehicles and equipment that now exists in collective bargaining agreements. Any changes in policy concerning,the use of vehicles would, of course, have to be nego- tiated in the usual manner." Legislative Record - Senate, September 7, 1983, at 34. 10. On December 12, 1983, Colonel John Marsh sent a memorandum to all Wardens which stated, in relevant part: "[Rlecent legislation makes it unlawful on January 1 for an employee of this Department to use any Department equipment or vehicles for other than official use." 11. On December 15, 1983, the Union demanded a meeting with the Commissioner of Inland Fisheries and Wildlife, pursuant to Article -5- LVII of the Law Enforcement Services bargaining unit collective bargaining agreement, to discuss the Department's change of its vehicle use policy. 12. During December of 1983, three Union staff representatives met with Deputy Commissioner of Inland Fisheries and Wildlife Norman Trask, Game Warden Major Merrill, and the Department's Personnel Officer. In the course of that meeting, the Department officials stated that the Department's position was that Chapter 588 prohibited the Wardens from the type of non-official vehicle use which had been permitted under the relevant collective bargaining agreements and that such use would not be allowed on and after January 1, 1984. 13. There were no negotiations between the Union and the State over the change in the Department's vehicle use policy, prior to said change being implemented on January 1, 1984. On that date, the Department's interpretation of Chapter 588, discussed in the preceding paragraph, was put into effect. 14. During the course of the collective negotiations mentioned in paragraph 7 above, the State counter-proposed that the existing provi- sions pertaining to the use of State vehicles while off duty, cited in paragraph 3, supra, be deleted. 15. Throughout the fact-finding and interest arbitration pro- ceedings mentioned in paragraph 7 above, the State maintained the position that the off-duty use of State vehicles, by employees in the State employee Law Enforcement Services and Supervisory Services bar- gaining units which was allowed by the collective bargaining agreement sections cited in paragraph 3 hereof, should be deleted from the suc- cessor agreements. Recognizing that said vehicle use policies may have been abused in the past, both the Fact-Finding Report and the Interest arbitration decision rejected the State's argument, kept the quoted language in the successor agreements, and suggested that the solution to such problems was "greater scrutiny to assure that the abuses do not occur." 16. The collective bargaining agreements, which succeeded those quoted in paragraph 3 above and which, subsequent to being ratified by -6- the Legislature, were executed by the parties and became effective on September 11, 1984, contain an Article on State vehicles and equipment whose relevant parts are identical to those cited in paragraph 3, supra. 17. After September 11, 1984, the State has continued to prohibit the law enforcement employees of the Department of Inland Fisheries and Wildlife, whose classifications are included in the bargaining units mentioned in paragraph 1 hereof, from using State vehicles for anything but official business. DECISION The Union's complaint charges that the State violated 26 M.R.S.A. Sections 979-C(1)(A), (B), and (E) by unilaterally discontinuing the practice of allowing the personal, non-commercial use of State vehicles by on-duty and off-duty Game Warden employees of the Department of Inland Fisheries and Wildlife. The motor vehicle use policy in contention was explicitly approved by the 1982-1983 collec- tive bargaining agreements for the Wardens' bargaining units and the practice continues to be enjoyed by the other law enforcement employees in the Supervisory Services and the Law Enforcement Services bargaining units. The State admitted that it has changed the policy in question unilaterally and without bargaining the same with the Union. While recognizing that its conduct would have violated the Act under most circumstances, the State argues that it did not breach the Act in this case because its action was required by legislative enact- ment. Section 979-C(1)(E) requires the public employer to negotiate over the wages, hours, working conditions and contract grievance arbitration of and for its employees with the employees' bargaining agent. The statutory duty to bargain not only requires the employer to negotiate over the mandatory subjects of bargaining but it also prohibits the employer from making unilateral changes in those areas. N.L.R.B. v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed. 2d 230 (1962); State v. Maine Labor Relations Board, 413 A.2d 510, 515 (Me. 1980). The rationale behind the unilateral change rule is that -7- modifications in the mandatory subjects of bargaining, which are not the product of collective bargaining between the employer and the cer- tified bargaining agent but which result solely from employer action, circumvent the duty to negotiate and frustrate the purpose of Section 979-C(1)(E) as much as does a flat refusal to negotiate. Unilateral management changes in the mandatory subjects of bargaining have the inherent effect of interfering with the employees' right to engage in bargaining and, therefore, also violate Section 979-C(1)(A) of the Act. Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 810 (Me. 1982); Maine State Employees Association v. State of Maine, MLRB No. 84-19, at 10 (July 23, 1984). To fall within the prohibition of the unilateral change rule, a management action must alter a mandatory subject of bargaining. The National Labor Relations Board has held that an employer's practice of allowing its employees to use the employer's motor vehicles for their own personal purposes during off-duty time is a fringe benefit which relates to the employees' working conditions. Eagle Material Handling of New Jersey, 224 NLRB 1529, 1532-33 (1976). Finding the National Board's analysis persuasive, this Board has held that public employers violate the statutory duty to bargain if they unilaterally discontinue an established policy of allowing the personal off-duty use of offi- cial vehicles by their organized employees. Teamsters Local 48 v. Bucksport School Department, MLRB No. 81-18, at 4 (Dec. 22, 1980); Teamsters Local 48 v. Town of Jay, MLRB No. 80-02, at 5 (Dec. 26, 1979). The State has not denied that it discontinued the policy of allowing the private, non-commercial use of State vehicles by the Game wardens without having bargained said change with the Wardens' bargaining agent. Having admitted the Union's factual allegations, the State offered two contentions in support of the position that the State's actions did not violate any provision of the Act. The State's first argument is that the Union has waived its right to complain about a refusal to bargain, over the change in the vehicle use policy, by the Union's failure to demand such negotiations in a timely manner. We have often stated that, to be effective, a waiver of the statutory right to bargain must be clear and unmistakable. Maine State -8- Employees Association, supra, at 8-9. No such waiver is present in this case. In a memorandum to "All Wardens" dated December 12, 1983, the Department of Inland Fisheries and Wildlife notified the Wardens of the impending change in the vehicle use policy. Three days later, the Union wrote to the Commissioner of the Department and requested a meeting to discuss the Department's vehicle use policy. The prompt action taken by the Union, in response to the Department's memorandum of December 12, 1984, clearly refutes any suggestion that the Union waived its right to bargain over the change in the vehicle use policy. The State's second major contention is that the termination of the Wardens' private use of State vehicles was required by the Legislature's enactment of Chapter 588, Section 4, of the Public Laws of 1983. The Statute, which has been codified as 12 M.R.S.A. Sec. 7036(6) (Supp. 1984-85) and which became effective on January 1, 1984, states: "Personal use of vehicles and equipment. No employee may use any department equipment or vehicles for other than official business." The State not only argues that modification of the Wardens' vehicle use policy, as set forth in the relevant collective bargaining agreements, was required by the above-cited Statute but also that said Public Law "prescribed or controlled" the use of official vehicles by the employees of the Department of Inland Fisheries and Wildlife. Section 979-D(1)(E)(1) provides that, to the extent that matters are prescribed or controlled by public law, such subjects are removed from the scope of mandatory bargaining. Since the unilateral change rule only applies to the mandatory subjects of bargaining and since the Wardens' motor vehicle use policy was allegedly removed from the scope of mandatory bargaining by Section 7036(6), the State concludes that its unilateral change of said policy did not violate the stat- utory duty to bargain. The Supreme Judicial Court has interpreted the relevant portion of Section 979-D(1)(E)(1) as prohibiting parties from negotiating collective bargaining agreements whose terms are inconsistent with existing law. State v. Maine Labor Relations Board, supra, 413 A.2d, -9- at 515. Since mandatory collective bargaining was created by the Legislature, that body may through a clear expression of intent, prospectively alter, limit, or expand the scope of the statutory duty to bargain. Because of the ambiguity of the statutory language, we hold that 12 M.R.S.A. Sec. 7036(6) does not remove the Game Wardens' vehicle use policy from the ambit of mandatory collective bargaining. Although limiting the utilization of State vehicles by the Wardens to "official business," Section 7036(6) does not define the term "official business" nor does it expressly prohibit the motor vehicle use provided in the relevant collective bargaining agreements, which had been ratified by the Legislature. Under the pertinent bargaining agreement articles and pursuant to the Department's Policies and Procedures, when they used official vehicles for private, non- commercial purposes during non-duty status, the Wardens assumed on- duty status for communication and operational purposes and were required to carry identification and to have a firearm available in the vehicle. While on on-duty status for communications and opera- tional purposes although not on scheduled duty status, the Wardens were available for an did in fact respond to radio messages about alleged violations of law within their assigned patrol areas, answered calls for assistance from other law enforcement personnel, and took appropriate action whenever they observed violations of law. The motor vehicle use permitted by the collective bargaining agreements, therefore, constituted official business and it was unclear whether Section 7036(6) was intended to prohibit such use. We have examined the legislative history of Section 7036(6), in an attempt to resolve the ambiguity noted above. During the debate over the measure in the House of Representatives, Representative Phyllis R. Erwin stated: "I am on that subcommittee with the Audit and Program Review and just last week we had a long discussion about these vehicles and the use of the vehicles when the wardens are not on duty. We are recommending that they not be allowed to use them. We cannot do so. We had contracts there shown to us that are under this collective bargaining where all state employees who use state vehicles are all allowed the same privilege of using their vehicle -10- on their personal time as long as they pay for their gasoline and the expense of that vehicle during that period of time. There is nothing that we can do about it unless that contract is changed and every state employee is treated the same." Legislative Record - House, September 6, 1983, at 7. Later in the same debate, Representative Maynard G. Conners of Franklin, arguing in favor of adoption of the measure, stated that the vehicle use policy was controlled by the relevant collective bargaining agreements and could not be changed by the Legislature. Legislative Record, supra, at 9. Senator Charles P. Pray, during the Senate debate over Section 7036(6), plainly stated that the measure was not intended to change the vehicle use policies contained in the collective bargaining agreements. The provision was meant to authorize the Commissioner of Inland Fisheries and Wildlife to regulate the use of State vehicles- within the limits set forth in the collective bargaining agreements. Legislative Record - Senate, September 7, 1983, at 34. A review of the legislative history of Section 7036(6) did not resolve the ambi- guity as to whether the enactment was intended to discontinue the nego- tiated vehicle use policy for the Game Wardens. Legislative intent, concerning the Wardens' vehicle use policy, has been clarified by subsequent legislative action. During the nego- tiations between the State and the Union for successor agreements to the 1982-1983 collective bargaining agreements, the State proposed that the articles permitting the off-duty use of official vehicles be deleted from the Supervisory Services and Law Enforcement Services agreements. The Union refused to agree with the State's proposal and the parties persisted in their respective positions through fact- finding and interest arbitration. In both of the formal impasse reso- lution procedures mentioned, the State cited "numerous complaints" of abuse of the policy, in support of its proposed deletion. Both the Fact-Finding and the Interest Arbitration Panels rejected the State's position. The Interest Arbitration Report, at page 78, outlined that Panel's conclusion as follows: "The fact that there have been some abuses of a benefit does not justify its elimination, where as here the evidence shows a greater benefit is -11- accrued to the state by the ready availability of its personnel who have use of such vehicles. Rather the solution should be by greater scrutiny to assure that the abuses do not occur. We agree with the fact finders that this provision should remain in the parties' agreement." The successor collective bargaining agreements, negotiated by the par- ties for the Supervisory Services and Law Enforcement Services bargaining units, contain State Vehicles and Equipment articles whose relevant portions are identical to the language contained in the 1982-1983 agreements. Those articles permit the use of official vehicles for necessary personal business during non-duty status time by those unit employees to whom State vehicles have been assigned. The Game Wardens have not been excluded from the language of the State Vehicles and Equipment articles. The successor collective bargaining agreements were ratified by the Legislature and became effective on September 11, 1984. In ratifying agreements which contained a vehicle use policy identical to that in the 1982-1983 agreements, the Legislature expressed an intent to continue said benefit for all of the unit employees with assigned State vehicles. The private, non-commercial use of State vehicles by the Game Warden employees of the Department of Inland Fisheries and wildlife relates to the working conditions of said employees and is, therefore, a mandatory subject of bargaining. The Union did not waive its right to demand bargaining over a change in the Wardens' vehicle use policy. Title 12 M.R.S.A. Sec. 7036(6) does not prescribe or control the use of official vehicles by employees of the Department of Inland Fisheries and Wildlife. Since the State implemented a change in the Wardens' vehicle use policy, unilaterally and without negotiating over the same with the affected unit employees' bargaining agent, the State has violated the duty to bargain in good faith mandated by Section 979-C(1)(E) of the Act. The natural consequence of its action was to interfere with the Game Wardens' right to engage in collective bargaining; therefore, the State's conduct also violated Section 979-C (1)(A) of the Act. The Union's final contention was that, by implementing the unila- teral change in the Game Wardens' vehicle use policy, the State -12- violated 26 M.R.S.A. Sec. 979-C(1)(B). That section of the Act prohibits discriminatory employment decisions by a public employer in retal- iation for an employee's engaging in conduct protected by the Act. Such discriminating treatment has the inherent effect of encouraging or discouraging membership in an employee organization, within the meaning of the Act. Maine State Employees Association v. State Development Office, MLRB No. 84-21, at 10 (July 6, 1984). Absolutely no evidence was presented in support of the argument that the Game Wardens' vehicle use policy had been changed because those employees had engaged in activities protected by the Act. We must, therefore, dismiss the Union's allegation of a violation of Section 979-C(1)(B). We will order the State of Maine and the Department of Inland Fisheries and wildlife to cease and desist from making unilateral changes in mandatory subjects of bargaining and to immediately reinstate the practice of allowing the Department's Game Warden employees to use official vehicles for personal, non-commercial pur- poses pursuant to and limited by the terms and conditions of the State Vehicles and Equipment articles of the current Supervisory Services and Law Enforcement Services bargaining units' collective bargaining agreements. This practice is to remain in effect until the issue of the use of such vehicles is resolved through negotiations with the Game Wardens' bargaining agent. Although the Union's complaint prayed that the State be ordered to "make whole' the employees adversely affected by the State's actions, the Union did not offer any evidence to establish and quantify the amount of such damages, if any. The Board will not engage in speculation in fashioning an appropriate remedial order. Since no damages were established, none will be awarded. These remedies will effectuate the policies of the Act and restore the status quo. 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 26 M.R.S.A. Sec. 979-H(3) (Supp. 1984-85), it is hereby ORDERED: -13- That the State of Maine and the Department of Inland Fisheries and Wildlife and their representatives and agents: 1. Cease and desist from changing any aspect of the Game Wardens wages, hours, and working conditions without first notifying and bargaining with the Wardens' collective bargaining agent. 2. Take the following affirmative actions necessary to effectuate the policies of the Act: a. Immediately reinstate the practice of allow- ing the Game Warden employees of the Depart- ment to use official vehicles for personal, non-commercial purposes pursuant to and limited by the terms and conditions of the State Vehicles and Equipment articles of the current Supervisory Services and Law Enforcement Services bargaining units' collective bargaining agreements. This practice is to remain if effect until the issue of the use of such vehicles is re- solved through negotiations with the Game Wardens' bargaining agent. b. Within 30 days of the date of this Decision and Order, notify the Board's Executive Director in writing of the steps taken to comply with this order. Dated at Augusta, Maine, this 17th day of January, 1985. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised of William M. Houston their right, pursuant to Alternate Chairman 26 M.R.S.A. Sec. 979-H(7) (Supp. 1984-85) to seek a review by the Superior Court of this decision by filing /s/________________________________ a complaint in accordance Carroll R.- McGary with Rule 80B of the Rules Alternate Employer Representative of Civil Procedure, within 15 days of the date of this decision. /s/________________________________ Russell A. Webb Alternate Employee Representative -14-