STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-14
Issued: November 18, 1986
__________________________________
)
MAINE TEACHERS ASSOCIATION/ )
NATIONAL EDUCATION ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
STATE BOARD OF EDUCATION, )
)
Respondent. )
__________________________________)
On February 24, 1986, the Maine Teachers Association/National
Education Association (Association) duly filed with the Maine Labor
Relations Board (Board) a prohibited practice complaint alleging that
the State Board of Education (State) has refused to bargain with the
Association as required by 26 M.R.S.A. 1026 (Pamph. 1986), in viola-
tion of 26 M.R.S.A. 1027(1)(E) (Pamph. 1986). more specifically,
the Association alleges that in September of 1985 the State created
two new positions, placed them within a collective bargaining unit
represented by the Association and unilaterally assigned salary levels
to them. Additionally, the Association alleges that on December 12,
1985, the State refused to negotiate, as requested by the Association
on October 16, 1985, over the salary levels assigned to the new posi-
tions. The State's March 17, 1986 Response states, by way of defense,
that on December 12, 1985, the State informed the Association that
"under the terms of the [parties'] existing collective bargaining
agreement, any bargaining over salary levels of new positions
belong[ed] in regular negotiations for a successor agreement."
On March 28, 1986, Alternate Chairman Donald W. Webber conducted
a prehearing conference in this matter. The Prehearing Conference
Memorandum and order issued by Alternate Chairman Webber on March 31,
1986, is incorporated in and made a part of this Decision and order.
As a result of the parties' preheating discussion the issues of what
"positions" are determined by the salary schedule in the parties'
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collective bargaining agreement and whether the State properly and
"lawfully assigned" the new positions "to salary levels" were sub-
mitted to the Board on a stipilated factual record. Both parties
filed briefs, the last of which was filed on June 27, 1986. On
September 18, 1986, the Board, consisting of Chairman Edward S.
Godfrey, presiding, Thacher E. Turner, Employer Representative, and
George W. Lambertson, Employee Representative, deliberated the issues
framed by the Complaint and Response and narrowed by the Prehearing
Conference Memorandum and Order.
JURISDICTION
The Board has jurisdiction over this controversy pursuant to 26
M.R.S.A. 1029 (Pamph. 1986). The complaint alleges violations of
the obligation to bargain in good faith prescribed in 26 M.R.S.A.
1026 (Pamph. 1986), which violations are specifically proscribed by
26 M.R.S.A. 1027(1)(E) (Pamph. 1986). Neither party has challenged
the Board's jurisdiction over this matter.
FINDINGS OF FACT
Since 1978, and at all times material to the complaint, the
Association has been the duly certified collective bargaining agent,
within the meaning of 26 M.R.S.A. 1022(1)(B) (Pamph. 1986), for a
unit of unclassified administrative employees of the State's Voca-
tional Technical Institutes (VTIs). At all times material to the
complaint, the State was the public employer of the employees in that
unit within the meaning of 26 M.R.S.A. 1022(1)(C) (Pamph. 1986).
The Board of Trustees of the Maine VTI System is now the public
employer of employees in the VTI Administrator's unit by virtue of the
enactment of P.L. ch. 695, 13 (effective Apr. 16, 1986). Until
June 30, 1987, however, the State's Office of Employee Relations is,
by virtue of this same enactment, responsible for the employer collec-
tive bargaining functions with respect to the VTIs.
The parties have bargained five collective bargaining agreements,
the first of which covers the period of July 1, 1978 through June 30,
1980. The contract between the parties, in effect at all times per-
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tinent to the instant controversy, covered the period of August 22,
1985 through June 30, 1986. The latter collective bargaining agree-
ment contains two consecutive six-month salary schedules which estab-
lish six seven-step salary levels. The structure of the schedule,
and the assignments of positions to salary levels in the schedule,
were modified in negotiations for the 1983-85 and 1985-86 collective
bargaining agreements.
On September 10, 1984, the Association's Higher Education
Affiliate Service Director, Jonathan Falk, wrote a letter to the
Governor's Office of Employee Relations' Director of Representation
and Counsel, Susan Farnsworth, stating, among other things, his view
that under the parties' contract the "Board has the right to create
new positions in the bargaining unit, and the Association has the
right to negotiate over the salary level of a new position. Article
14(H)5 gives the Director the right to decide at which step to
employ the administrator who fills the position." The State did not
respond in writing to the September 10, 1984 memorandum.
On September 10 and October 25, 1984, Falk and Farnsworth,
respectively, executed a memorandum of understanding with regard to
the salary level, step and appointment of William Egeler to fill a
newly-reclassified position within the VTI Administrators' bargaining
unit. The memorandum of understanding specifies that the salary
assignment which it accomplishes "shall not constitute a practice or
precedent for any purpose."
Since the parties began collective bargaining the State has added
ten positions to the Administrator's bargaining unit. The State has
not separately negotiated in mid-term over the salary levels of any of
these positions. Although the parties' 1978-80 contract contains no
such language, all of the parties' subsequent contracts, including the
1985-86 contract, provide that the "Director may employ [Administrator
bargaining unit employees] at a salary greater than the base rate
established for the respective position" and further that "when a
vacancy occurs, the Director, upon approval of the Commissioner [of
Education], shall have the right to adjust the beginning salary level
of a position based upon changes in job duties."
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In negotiations for the collective bargaining agreement, in
effect at all times material to the instant case, the Association
proposed language, which was not incorporated into the agreement,
which would have altered the language of the present Salary and Fringe
Benefits article by adding the sublineated language in the following
provisions:
5. The Director may employ an administrator at a
salary greater than the base rate established for the
respective position. Also, when a vacancy occurs or a
new position is created the Director, upon approval of
the Commissioner and the Association shall have the right
to adjust the beginning salary level of the position
based upon changes in job duties.
The State created an Administrative Assistant position on
December 3, 1980, and assigned it the first step on the salary level
previously assigned by way of the parties' written agreement, to an
existing Administrative Assistant position. On August 26, 1981, the
State created an Adult Education Coordinator position and assigned to
it a salary step within the salary level assigned, by written bargain-
ing agreement, to two existing Adult Education Coordinator positions.
On August 31, 1982, the State created an additional Adult Education
Coordinator position and assigned to it a salary step within the
salary level assigned by written bargaining agreement to existing
Adult Education Coordinator positions. The State created two
Financial Aid Coordinator positions on August 31, 1982, and assigned
them salary steps within the salary level to which an existing
Financial Aid Coordinator position was assigned by bargaining agree-
ment. On February 15, 1984, the State created a Career Counselor
position and assigned it the second lowest salary level within the
salary schedule in the parties' written bargaining agreement. At the
time of the creation of this position there were no other such posi-
tions. On January 22, 1985, the State created a Financial Aid
Coordinator position and assigned it a salary step in the salary level
assigned, in the parties' written bargaining agreement, to an existing
Financial Aid Coordinator position. On December 4, 1985, the State
created an Adult Education Coordinator position and assigned it to the
lowest of six salary levels in the parties' written bargaining
agreement. At the time of the creation of this position there were no
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other such positions; however, the Adult Education Coordinator posi-
tion which existed during the term of the parties' previous written
bargaining agreement had been assigned the lowest of six salary
levels.
In September of 1985, the State unilaterally created two entirely
new positions within the VTI Administrators' bargaining unit and
assigned salary levels to them. Those positions were entitled
"Coordinator - TV & Communications" ("CTC") at Southern Maine VTI and
"Counselor, Educational and Cultural Services" ("CECS") at Eastern
Maine VTI. On October 8 and 10, 1985, Al York, MDECS-Personnel
Department, promulgated memoranda "defining authorizations" for these
two new VTI positions. Falk was on the distribution list for and
received copies of these memoranda. The CTC position was assigned,
effective September 9, 1985, to a pay level four, identical in minimum
and maximum dollar amounts to the existing pay level four in the par-
ties' collective bargaining agreement. The CECS position, effective
September 5, 1985, was ostensibly assigned to a pay level two. The
memorandum establishing the CECS position sets forth a minimum salary
amount identical to that then in effect for pay level two in the par-
ties' collective bargaining agreement. However, the memorandum
establishes a salary level maximum for the position which, although
identical in amount to that effective for salary level two in the par-
ties' agreement on the initial assignment date, is less than that
effective for salary level two under the contract for the last six
months during which the position was authorized.
On October 16, 1985, Falk wrote Governor's Office of Employee
Relations Labor Relations Specialist Vurle Jones concerning the
unilateral creation of these two positions. The pertinent portions of
Falk's letter provide:
Both of these positions have been assigned unilaterally
to the Administrative bargaining unit, and have been
assigned unilaterally to salary levels.
It is the Association's position that we retain the
right to agree or disagree about this bargaining unit place-
ment (see Article 1, Section D. of the collective bargaining
agreement) and refer any disagreement to the Maine Labor
Relations Board. We further reserve the right to bargain
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over the salary level of any new position. (See the enclosed
September 10, 1984 letter to Susan Farnsworth.)
Therefore, I am asking on behalf of the Association
that you provide me with information concerning these new
positions so that we may determine whether we agree with
their placement within the Administrators bargaining unit,
and so that we may negotiate over the salary level of these
positions. Please contact me so that we may schedule such
negotiations at your earliest convenience.
On November 4, 1985, Jones wrote Falk memorializing his under-
standing of their agreement to meet on December 12, 1985. Jones
agreed in this correspondence to forward the information concerning
the positions which Falk had requested and stated that at the sched-
uled meeting he would "like to discuss the negotiability" of the issue
and review any proposals by Falk. At this meeting on December 12,
1985, Jones, who was the State's Chief VTI Contract Negotiator,
refused to negotiate the salary levels of the new positions and
informed the Association that, pursuant to the parties' existing
collective bargaining agreement, any bargaining over salary levels of
new positions belonged in regular negotiations for a successor
agreement.
POSITIONS OF THE PARTIES
The State contends that as a result of the combination of express
contract term, bargaining history, and the past practice of the par-
ties, the Association has clearly and unmistakably waived its right to
bargain mid-term over the assignment of new positions to salary
levels. Additionally, the State responds that the Association may not
bargain on behalf of new employees in the first six (6) months of
their employment.
The State contends that it has unilaterally assigned five new
positions to salary levels mid-term since the parties began collective
bargaining and that the Association's acquiescence therein is suf-
ficient to establish a waiver through inaction. The Association con-
tends that the parties' past practice cannot constitute a waiver
because, of the five-new positions created since the inception of the
current six-level salary schedule, two were assigned existing titles
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and the corresponding negotiated salary level, two are positions pre-
sently in issue as to which the Association has requested bargaining,
and the third was created in the interim between contracts and, there-
fore, not in mid-term. The Association states that it perceives no
need to bargain salary levels assigned to newly hired employees when
such employees are hired in existing job classifications and are
assigned corresponding salary levels which the parties have previously
negotiated.
The State contends that by agreeing to the present language of
the Embodiment of Agreement clause in the parties' bargaining agree-
ment the Association has contractually waived the right to negotiate
over the mid-term assignment of salaries to newly-created positions.
The Embodiment of Aqreement clause provides that "[e]xcept as herein
provided, neither party shall demand any modification to this
Agreement nor shall either party be obligated to bargain collectively
with the other with respect to any subject or matter specifically
referred to or covered herein." The State argues that the issue of
the mid-term assignment of salary levels to newly-created positions is
"specifically referred to or covered" as follows:
I. By the Recoqnition article of the parties' agreement which
provides, in pertinent part:
C. The Board shall inform the Association promptly in
the event new positions are created or existing posi-
tions are changed which may result in additions to or
exclusions from the bargaining unit.
D. In the event of a dispute between the parties as to
future modifications in the composition of the bargain-
ing unit, either party to this agreement may apply to
the Maine Labor Relations Board for resolution of the
dispute.
II. By the contract's Vacancies article which provides, in
pertinent part, that:
B. Whenever a vacancy in the unit occurs, qualified
applicants from the unit shall be interviewed and
considered for the position. If not selected, unit
members shall be notified in writing of their non-
selection.
III. By the Salary and Fringe Benefits article which provides,
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in pertinent part:
H. Salaries
1. Effective July 1, 1985, administrators shall be
placed on the salary schedule in Appendix A at the
salary level and step assigned to their position as
set forth in Appendix C.
. . . .
5. The Director may employ an administrator at a
salary greater than the base rate established for the
respective position. Also, when a vacancy occurs, the
Director, upon approval of the Commissioner, shall
have the right to adjust the beginning salary level of
a position based upon changes in job duties.
The Association contends that the Embodiment of Agreement (zipper)
clause of the contract is insufficient to constitute a contractual
waiver, because although the clause zips up bargaining over any sub-
ject or matter specifically referred to or covered in the contract,
the matter of salary levels of new classifications is not referred to
in the contract. Finally, the Association contends that there is no
evidence which establishes that it has specifically bargained and
knowingly abandoned the right to bargain over the assignment of salary
levels, mid-term, to newly-created positions.
DISCUSSION
The Association concedes that the State was possessed of the
authority to create new positions and does not contest the State's
assertion that the newly-created positions are appropriately included
in the VTI Administrator's bargaining unit. There is no allegation
or evidence that employment in any other bargaining unit position is a
prerequisite of appointment to either of the newly-created positions,
or that employment in any unit position is considered a normal step-
ping stone to either of the positions at issue. There is no allega-
tion in this case of a per se violation of the obligation to meet for
collective bargaining within ten days as required by 26 M.R.S.A.
1026(1)(B) (Pamph. 1986). See-generally Washburn Teachers Associa-
tion v. Barnes, No. 83-21, slip op. at 8 (Me.L.R.B. Aug. 24, 1983).
The Association has not alleged that the assignment of salaries to the
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CECS or CTC positions constituted a fait accomPli andf therefore, a
separate and discrete violation of 26 M.R.S.A. 1027(1)(E) (Pamph.
1986). See generally Teamsters Local Union No. 48 v. Town of Port
Fairfield, No. 86-01, slip op. at 8, 9 (Me.L.R.B. Jan. 24, 1986).
We must initially determine whether the State is obligated by
statute to engage in collective bargaining, upon request, over multi-
year salary schedules applicable to newly-created bargaining unit
positions. For reasons set forth below we find the State so obli-
gated. Because we also find that the State effectuated the salary
schedules at issue without reasonable prior notice to the Association
and refused to negotiate over salary schedules for the two positions
upon the Association's proper demand, we must also determine whether
the State's statutory obligation to bargain has been waived by the
Association, as is contended by the State. In the last portion of
this discussion we detail the rationale underlying our resolution of
this latter inquiry in favor of the Complainant.
The multi-year salary schedules herein clearly fall within the
meaning of the term "wages" as referred to in 26 M.R.S.A. 1026(1)(C)
(Pamph. 1986), and constitute mandatory subjects of bargaining.
Refusing to bargain over mandatory subjects of bargaining, such as
these schedules, is specifically prohibited by 26 M.R.S.A. 1027(1)
(E) (Pamph. 1986). Moreover, unilateral "implementation of changes in
mandatory subjects of bargaining, without first notifying and
affording the bargaining agent the opportunity of demanding nego-
tiations thereon . . . 'is a circumvention of the duty to negotiate
which frustrates the objectives of [the Act as] much as does a flat
refusal.'" Teamsters Local Union No. 48 v. Town of Fort Fairfield, No.
86-01 slip op. at 8 (Me.L.R.B. Jan. 24, 1986) (quoting N.L.R.B v. Katz,
369 U.S. 736, 743 (1962) and Lane v. Board of Directors of M.S.A.D.
No. 8, 447 A.2d 806, 809-10 (Me. 1982)).
The State advances by way of defense to the Association's charge
of prohibited practices that "no employee represented by the
Association is adversely affected" by the assignment of initial salary
levels in this case because "the Association may not bargain on behalf
of new employees in the first six (6) months of their employment."
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This argument is unpersuasive.fn1 Although the record establishes that
appointments of employees to fill the positions in question occurred
on September 5 and 9, 1985, it fails to establish whether the
employees so appointed had worked for the employer in any other capa-
city prior to undertaking employment in the newly-created classifica-
tions. Additionally, the State's refusal to bargain salary levels was
categorical and constituted a refusal to negotiate the salary to be
paid public employees of the employer who might laterally transfer to
fill vacancies in such positions. In any event, the State refused to
bargain and unilaterally established for these positions a salary
schedule that was applicable well beyond the first six months of
employment.
It is axiomatic that unless permitted by the operation of the
very limited exceptions of impassef business exigency, waiver or tra-
ditional practice, see Easton Teachers Association v. Easton School
Committee, No. 79-14 (Me.L.R.B. Mar. 13, 1979), an employer's unilat-
eral change in a mandatory subject of bargaining constitutes a refu-
sal to bargain. See e.g. State v. Maine Labor Relations Board, 413
A.2d 510 (Me. 1980); MSEA v. State, No. 85-19 (Me.L.R.B. Dec. 2,
1985). As explained above we find that the salary schedules in issue
constitute mandatory subjects of bargaining. The State has not
asserted a defense based upon impasse or business exigency; therefore,
unless the State's bargaining obligation has been modified by written
agreement pursuant to 26 M.R.S.A. 1026(1)(B) (Pamph. 1986), or is
result of traditional practice, the State committed the prohibited
practice of unlawful refusal to bargain when it unilaterally imple-
mented and refused to bargain over the salary schedules assigned to
the newly-created CTC and CECS positions. After consideration of the
provisions of the parties' agreement, and the meager evidence adduced
with regard to both bargaining history and past practice, we find that
the Association has not waived its right to bargain mid-term over the
_______________
1 We need not decide in this case whether the salaries of employees
in their initial six months of employment are mandatorily negotiable.
See generally, Lewiston Teachers Association v. Lewiston School
Committee, No. 83-08, slip op. at 6 (Me.L.R.B. Jan. 14, 1983); Lake
Teachers Association v. Mount Vernon School Committee, No. 78-15
(Me.L.R.B. May 3, 1978).
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instant salary schedules.
We have often discussed the standard to be applied to alleged
waivers in the context of determining the duty to bargain mid-term:
The rule we follow is that "[t]he duty to bargain 'as to
subjects which are neither discussed nor embodied in any
of the terms and conditions of the contract' continues
throughout the term of the contract." MSEA v. State of
Maine, MLRB No. 84-19 at 9 (July 23, 1984), quoting NLRB v.
Jacobs Mfg. Co., 196 F.2d 680, 684 (2nd Cir. 1952). A party
may waive its right to bargain about a particular subject
during the term of the contract by agreeing to specific
contractual language, and we apply the "clear and unmistak-
able" standard when determining whether such waiver has
occurred: "waiver of the statutory right to bargain in a
management rights clause, zipper clause, or other waiver
clause must be 'clear and unmistakable.'" Auburn Fire-
fighters Association v. Morrison, MLRB No. 83-10 at 6
(March 9, 1983).
Gray-New Gloucester Teachers Association v. M.S.A.D. #15 Board of
Directors, No. 85-01, slip op. at 3 (Me.L.R.B. Oct. 11, 1984).
In MSAD No. 54 Education Association v. MSAD No. 54, No. 86-12,
slip op. 11, 12 (Me.L.R.B. Oct. 8, 1986), we recently reiterated this
standard:
We have consistently required alleged waiver of statutory
collective bargaining rights to be strictly proved. Our
construction of zipper and management rights clauses is
aimed at giving purpose and meaning to the language which
the parties have negotiated into a labor agreement. In pur-
suit of that goal we have required that the language in such
clauses be "clear and unmistakable" to be given effect as a
waiver . . . . [T]he right to bargain proposed changes in
working conditions is a statutory and not a contractual
right, the contractual waiver of which must be established
by evidence of clear relinquishment, whether by express
contract term or necessary implication.
The effect of the language in the Embodiment of Aqreement clause
in the instant case does not approach that which was construed by the
Law Court in State v. MSEA, 499 A.2d 1228 (Me. 1985), to constitute an
unequivocal contractual waiver of the right to any mid-term nego-
tiations. There, the parties' zipper clause was construed to waive
impact bargaining, not mentioned in the contract, because the clause
zipped-up bargaining over "matters that: (a) could have been raised
during pre-agreement negotiations, (b) were raised and rejected at the
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time, or (c) were specifically addressed in the agreement itself."
Id. at 1229. The Embodiment of Agreement clause in the instant case,
however, waives only the right to demand mid-term negotiations over
"any subject or matter specifically referred to or covered [in the
collective bargaining agreement]." Although the contract here author-
izes the Director to "employ an Administrator at a salary greater than
the base rate established for the respective position" and to "adjust
the beginning salary level of a [vacant] position based upon changes
in job duties," it nowhere specifically or even generally refers to
the establishment of salary levels for newly-created positions. We
therefore find this portion of the State's defense to be unpersuasive.
The State's contention that the past practice of the parties
establishes a waiver is equally unpersuasive. The record establishes
that at all times prior to the establishment of the two positions here
in issue, the State had always compensated individuals employed in
positions accorded pre-existing job titles at salary levels which the
parties had previously negotiated for such job titles. The record
also establishes that prior to the creation of the CTC and CECS posi-
tions the State had, in only one instance, unilaterally assigned a
salary level to a newly-created position. Absent extraordinary cir-
cumstances not present in the instant case, a single instance of
failure to exercise the option to demand negotiations will not be
construed as a clear and unmistakable waiver. Moreover, any colorable
claim of implied waiver of the right to negotiate salary levels,
herein, predicated upon the Association's failure to request nego-
tiation of the salary-level assigned to the Career Counselor position
is rendered null by the Association's actual demand to bargain over
salary levels for the CTC and CECS positions.
Finally, we fail to find clear and unmistakable waiver in the
Association's unsuccessful proposal of contract language which would
have contractually secured the otherwise statutorily guaranteed right
to bargain over the salary levels assigned to these newly-created
positions. See Saco Valley Teachers Association v. MSAD No. 6 Board
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of Directors, Nos. 85-07 and 85-09 (Me.L.R.B. Mar. 14, 1985). To find
a waiver in such circumstances would
[E]ncourage employers to firmly resist inclusion in
contracts of as many subjects as possible with the view to
such resistance giving them a right of unilateral action
thereafter on all subjects excluded from the contract . . .
and discourage unions from presenting any subject in nego-
tiations, for a simple refusal by the employer to agree to
the demand on the subject would leave the union in the unhappy
dilemma of . . . giving up the demand and thereby losing its
bargaining rights on the subject . . . .
Beacon Piece Dyeing & Finishing Co., 121 NLRB 953, 960 (1958).
Inasmuch as we have determined that the assignment of multi-year
salary levels to newly-created positions is a mandatory subject of
bargaining and since we have found that the State's unilateral assign-
ment of and refusal to bargain over salary levels assigned to the
newly-created CECS and CTC positions was not permitted by a waiver of
the right to demand bargaining, we conclude that the State has
violated 26 M.R.S.A. S 1027(1)(E) (Pamph. 1986).
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 (Pamph. 1986),
it is ORDERED that the State, its representatives and agents:
1. Cease and desist from refusing to bargain with
the certified bargaining agent representing VTI
employees, in violation of 26 M.R.S.A. 1027(1)
(E) (Pamph. 1986), over the mandatorily negotiable
subject of multi-year salary levels applicable to
newly-created positions.
2. Negotiate, upon request, over the multi-year
salary levels to be assigned to the newly-created
VTI positions of Counselor, Educational and
Cultural Services, and Coordinator - TV & Communi-
cations for the periods of employment elapsing
between the respective effective dates of these
positions and the first days upon which any other
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collectively bargained salary levels became or
become effective for those positions.
Dated at Augusta, Maine, this 18th day of November, 1986.
MAINE LABOR RELATIONS BOARD
The parties are hereby
advised of their right /s/_______________________________
pursuant to 26 M.R.S.A. Edward S. Godfrey
1029(7) (Pamph. 1986) Chairman
to seek review of this
Decision and Order by
the Superior Court by
filing a complaint in /s/_______________________________
accordance with Rule Thacher E. Turner
80B of the Rules of Employer Representative
Civil Procedure within
15 days of the date the
Decision.
/s/_______________________________
George W. Lambertson
Employee Representative
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