AFSCME Council 93 v. Governor McKernan and State of Maine, MLRB No. 91-18 (Employee Representative Lambertson dissenting in part, May 31, 1991), Decision and Order on Motion for Stay, No. 91-18, June 5, 1991, Motion for Stay of Final Agency Action Denied, No. CV-91-208 (Me. Super. Ct., Ken. Cty., July 25, 1991), MLRB decision affirmed, No. CV-91-208 (Nov. 27, 1991), Board decision vacated sub nom Bureau of Employee Relations v. AFSCME Council 93, 614 A.2d 74 (Me. 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-18 Issued: May 31, 1991 _______________________________________ ) AFSCME COUNCIL 93, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) GOVERNOR McKERNAN and STATE OF MAINE, ) ) Respondents. ) _______________________________________) On March 27, 1991, Council 93, American Federation of State, County and Municipal Employees ("AFSCME"), filed an amended prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that Governor McKernan and the State of Maine ("State") had violated the State Employees Labor Relations Act ("SELRA"), 26 M.R.S.A. 979-C(1)(E) and 979-D(1)(E)(1) and (3) (1988 & Supp. 1990). More specifically, AFSCME has alleged the following violations: 1) that the Governor failed to advocate full funding for the last year of the 1989-92 Institutional Services Unit collective bargaining agreement ("current agreement," "current collective bargaining agreement" or "ISU agreement"), as required by both 26 M.R.S.A. 979-D(1)(E)(3) (Supp. 1990) and Article 10 of the current agreement, because in his 1992-93 biennium appropriations bill ("biennium budget"), along with a line item to fund the current agreement, the Governor included an offsetting deapprop- riation, equal in amount, to implement 20 days of unpaid layoffs; 2) that the proposal for 20 days of layoffs during the last year of the current agreement violates the seniority provisions of that agreement and constitutes a refusal to bargain collectively under 26 M.R.S.A. 979-C(1)(E); 3) that the Governor has advocated in the biennium budget a reduction, from 60% to 50%, in the State's contribution toward dependents' health insurance premiums for the last year of the current agreement, which action violates the current agreement and constitutes a refusal to bargain collectively under 26 M.R.S.A. 979-C(1)(E); -1- 4) that the Governor's recent implementation of a series of one- day delays in the issuance of biweekly paychecks is a unilateral change that constitutes a refusal to bargain pursuant to 26 M.R.S.A. 979-C(1)(E); and 5) that for the second year of the biennium, for which no collective bargaining negotiations have yet occurred, the Governor has advocated in the biennium budget 20 days of unpaid layoffs, the 10% reduction in the State's contribution to depen- dents' health insurance premiums, and a reduction, from 100% to 80%, in the State's contribution toward employee health insurance premiums, which actions constitute a refusal to bargain pursuant to 26 M.R.S.A. 979-C(1)(E). In its response the State asserts that the Governor has submitted legislation to fund the economic terms of the current agreement as required by SELRA, and his decision to advocate offsetting savings through layoffs is irrelevant; that the current agreement permits the 20 days of layoffs; that pay dates are prescribed or controlled by public law and therefore are not subject to bargaining under SELRA; that the State's contribution to employee health insurance premiums is prescribed and controlled by law and therefore is not subject to bargaining; that AFSCME has waived its right to bargain over any changes or proposed changes that are the subject of the Complaint; and that for changes that have been proposed and not imple- mented, the controversy is not ripe. On April 1, 1991, AFSCME requested, in writing, that this matter be heard on an expedited basis. On April 5th, the Board heard oral argument on the request, and after deliberation, granted the request and set an expedited schedule. In accordance with that schedule, the parties met with Board staff to attempt to reach agreement on a stipulated record. On April 12, 1991, Board Chair Peter T. Dawson convened a prehearing conference; the April 12th Prehearing Conference Memorandum and Order, including the stipulations attached thereto, is incorporated in and made a part of this decision and order. An evidentiary hearing was convened on April 17, 1991, for the purposes of addressing one issue for which the parties were unable to stipulate a record, and presenting oral argument on the case as a whole. The parties were given full opportunity to examine and cross-examine witnesses, introduce documentary evidence and make oral argument. The parties filed post-hearing briefs, the last of which was received on May 3, 1991. The Board deliberated this matter on May 9, 1991. On May 13, 1991, AFSCME filed its Motion to Withdraw Complaint in Part. On May 15, 1991, the Board requested that AFSCME clarify its motion. Upon receipt of the clarification, and having received no objection to the motion from Respondents, the Board granted AFSCME's motion to withdraw allegation (1) above. JURISDICTION Complainant AFSCME is a bargaining agent within the meaning of 26 M.R.S.A. 979-A(1) (1988). The State is a public employer within the meaning of 26 M.R.S.A. 979-A(5) (1988). The jurisdiction of the Board to hear this case and to render a decision and order lies in 26 M.R.S.A. 979-H (1988). STIPULATIONS The parties reached the following stipulations: 1. AFSCME is the collective bargaining agent for the Institutional Services bargaining unit consisting of mental health, educational and correctional workers in the State of Maine, which unit contains approxi- mately 1,500 State workers. 2. The State of Maine is the employer of the employees in the Institu- tional Services bargaining unit. 3. In the spring and summer of 1989, BOER, on behalf of the State and the Governor, negotiated a successor collective bargaining agreement with AFSCME which was signed on September 5, 1989, for a period of three years (expiration date June, 30, 1992). Among other things the agreement pro- vided for wage increases of 3% of the employees' pay on or about July 1, 1989; 3% on or about April 1, 1990; 3% on or about October 1, 1990; 3% on or about April 1, 1991; and 7% on or about July 1, 1991. -3- 4. Article 10 of the current agreement reads as follows: ARTICLE 10 Compensation The State shall prepare, secure introduction of and recommend passage by the Legislature of appropriate legislation in order to provide the benefits described in this Article. A. The State agrees to continue to pay the cost of the 6.5% or the cost of the 7.5% retirement contributions as previously agreed to pursuant to 5 M.R.S.A. 1095. B. Effective with the start of the pay week commencing clos- est to July 1, 1989, employees shall be provided an across-the- board salary increase of three percent (3%). Salary schedules shall be increased accordingly. C. Effective with the start of the pay week commencing clos- est to April 1, 1990, employees shall be provided an across-the- board salary increase of three percent (3%). Salary schedules shall be increased accordingly. D. Effective with the start of the pay week commencing clos- est to October 1, 1990, employees shall be provided an across- the-board salary increase of three percent (3%). Salary schedules shall be increased accordingly. E. Effective with the start of the pay week commencing clos- est to April 1, 1991, employees shall be provided an across-the- board salary increase of three percent (3%). Salary schedules shall be increased accordingly. F. Effective with the start of the pay week commencing clos- est to July 1, 1991, employees shall be provided an across-the- board salary increase of seven percent (7%). Salary schedules shall be increased accordingly. Each employee employed by the State as of August 21, 1989, or who has retired or been laid off on or after July 1989, shall receive a lump sum payment of three percent (3%) of such employ- ee's gross pay for the week involved for each week the employee was employed from July 1, 1989 through August 21, 1989. Permanent seasonal employees and employees on leave of absence, whether or not in pay status on August 21, 1989, shall receive the payment for all time in pay status from July 1, 1989, to the end of the pay week commencing closest to August 27, 1989 or August 20, 1989 for cycles A and B, respectively. Part-time employees shall receive for each week a sum proportionate to the number of hours worked in the week. -4- G. Employees shall be advanced to the next higher step on the salary schedule upon satisfactory completion of each year of service. H. Effective July 1, 1990, a shift differential of thirty cents ($.30) per hour will be paid for shifts starting between 12:00 p.m. and 9:59 p.m. for full-time employees regularly assigned to such shifts. A shift differential of thirty cents ($.30) per hour will be paid for shifts starting between 2:00 p.m. and 9:59 p.m. for part-time employees regularly assigned to such shifts. A shift differential of forty cents ($.40) per hour will be paid for shifts starting between 10:00 p.m. and 3:00 a.m. for full-time and part-time employees regularly assigned to such shifts. Employees with shifts starting between 12:00 p.m. and 2:00 p.m. who work alternative work schedules shall only be paid the thirty cent ($.30) shift differential when they actually work a shift starting between 12:00 p.m. and 2:00 p.m. Effective July 1, 1991, a shift differential of thirty-five cents ($.35) per hour will be paid for shifts starting between 12:00 p.m. and 9:59 p.m. for full-time employees regularly assigned to such shifts. A shift differential of thirty-five cents ($.35) per hour will be paid for shifts starting between 2:00 p.m. and 9:59 p.m. for part-time employees regularly assigned to such shifts. A shift differential of forty-five cents ($.45) per hour will be paid for shifts starting between 10:00 p.m. and 3:00 a.m. for full-time and part-time employees regularly assigned to such shifts. Employees with shifts start- ing between 12:00 p.m. and 2:00 p.m. who work alternative work schedules shall only be paid the thirty-five ($.35) shift differ- ential when they actually work a shift starting between 12:00 p.m. and 2:00 p.m. The shift differential will be considered part of base pay for overtime pay and paid leave purposes. I. Six dollars ($6.00) per week premium will be paid to full time and prorated to part-time employees who are assigned on a regular basis to split shifts with such premium considered as part of base pay for overtime and paid leave purposes. J. Effective with the start of the pay week commencing clos- est to July 1, 1989, a twelve dollar ($12.00) per week premium will be paid to full-time and prorated to part-time employees possessing certification who regularly administer medication to residents or patients with such premium considered as part of base pay for overtime and paid leave purposes. Effective July 1, 1990, this medication premium will increase to fourteen dollars ($14.00) per week to the base. Effective July 1, 1991, this medication premium will increase to sixteen dollars ($16.00) per week to the base. -5- K. Effective January 1, 1990, employees with fifteen years (15) but less than twenty years (20) of continuous State service shall receive longevity pay of a total of twenty cents ($.20) per hour to the base. Employees who become eligible after that date shall receive the longevity pay of a total of twenty cents ($.20) per hour to the base upon eligibility. Effective January 1, 1990, employees with twenty years (20) of continuous State service shall receive longevity pay of a total of thirty cents ($.30) per hour to the base. Employees who become eligible after that date shall receive the longevity pay of a total of thirty cents ($.30) per hour to the base upon eli- gibility. Effective January 1, 1991, employees with fifteen years (15) but less than twenty years (20) of continuous State service shall receive longevity pay of a total of thirty cents ($.30) per hour to the base. Employees who become eligible after that date shall receive the longevity pay of a total of thirty cents ($.30) per hour to the base upon eligibility. Effective January 1, 1991, employees with twenty years (20) of continuous State service shall receive longevity pay of a total of forty cents ($.40) per hour to the base. Employees who become eligible after that date shall receive the longevity pay of a total of forty cents ($.40) per hour to the base upon eligi- bility. L. Effective July 1, 1989, employees assigned to a State institution other than the Maine State Prison shall be eligible for a weekend differential of twenty-five cents ($.25) per hour to the base for shifts beginning 10:00 p.m. Friday and 9:59 p.m. Sunday. Employees of the Maine State Prison shall be eligible for weekend differentials of twenty-five cents ($.25) per hour to the base for shifts starting between 8:20 p.m. Friday and 9:29 p.m. Sunday. Effective July 1, 1990, this differential shall increase to fifty cents ($.50) per hour to the base. M. Effective July 1, 1989, employees with direct care responsibilities for persons residing in institutions of the Department of Mental Health and Mental Retardation, and Correc- tions and students of the Baxter School for the Deaf, shall receive ten cents ($.10) per hour to the base. Effective with the start of the pay week commencing closest to July 1, 1990, this differential shall increase to twenty cents ($.20) per hour to the base. Effective with the start of the pay week commencing closest to July 1, 1991, this differential shall increase to thirty-five cents ($.35) per hour to the base. -6- N. An employee required to work two (2) shifts in a twenty- four (24) hour period will be paid an additional one (1) time payment of four dollars ($4.00) for the week regardless of the number of double shifts worked. This provision does not apply to employees who voluntarily work said shifts for their own con- venience. The State retains the right to establish schedules which minimize the payment of the premiums provided under this provision. Continuous State service is defined as continuous employment including all authorized leaves of absence since the last date of hire into a status granting position. 0. Any employee who is specifically directed to standby in a specific location(s), and who is available for immediate recall to duty, shall be paid for two (2) hours straight time hourly pay for each day of such standby status. Standby pay shall not be included as time worked toward the computation of overtime pay. Employees who are recalled to work in accordance with Article 6 shall not be eligible for standby pay for that particular day. Employees shall not receive standby pay when they are not available for call. 5. Article 17 of the current agreement reads as follows: ARTICLE 17 Embodiment of Agreement The parties acknowledge that during the negotiations which preceded this Agreement, each had the unlimited right and oppor- tunity to make demands and proposals with respect to any subject or matter not removed by law from the area of collective bargain- ing and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the State and Council #93, AFSCME, AFL-CIO, for the life of this Agreement, each voluntarily and unqualifiedly waive the right, and each agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter referred to or not referred to, covered or not covered in this Agreement, even though such subjects or mat- ters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated and signed this Agreement. -7- 6. Article 23 of the current agreement reads as follows: ARTICLE 23 Health, Life Insurance The State shall pay the basic group life insurance premiums for those employees who are members of this bargaining unit. This provision shall not diminish the right of employees to carry additional insurance on themselves or their dependents under pre- sent statutes. The State will provide one million dollars aggre- gate major medical coverage to employees. The State Employee Health Commission shall, before July 1, 1990, offer two (2) or more health insurance plan options from which employees covered by this Agreement may choose. The State of Maine shall pay toward the costs of the plan chosen by the employee an amount equal to the full cost of employee coverage and not less than sixty percent (60%) of the selected dependent package for the designated plan. The designated plan as used here means a plan which covers all the activities, services and purchases as the current plan at no greater percentage of payment by the insured in any form, including but not limited to co-payments and deductibles. After July 1, 1990 the designated plan will require the insured to seek the activities, services and purchases in more restrictive or fewer settings and locations than the current plan. As used here the current plan means the plan offered by Blue Cross/Blue Shield and BAMICO of Maine on July 1, 1989. The term selected dependent package means the two-person, adult-child, or family coverage as designated by the employees subject to enrollment Provisions. 7. Article 28 of the current agreement reads as follows: ARTICLE 28 Maintenance of Benefits With respect to negotiable benefits, terms and conditions affecting members of this unit, which are not covered by the Aqreement, but which are presently provided pursuant to law, written regulations, personnel rules, written directives, or special orders, the State agrees to make no changes without appropriate prior consultation and negotiation with the Union. -8- 8. Article 29 of the current agreement reads as follows: ARTICLE 29 Management Rights The Union agrees that the State has and will continue to retain the sole and exclusive right to manage its operations and retains all management rights, whether exercised or not, unless specifically abridged, modified or delegated by the provisions of this Agreement. Such rights include but are not limited to: the right to determine the mission, location and size of all agencies and facilities; the right to direct its work force; to administer the merit system, including the examination, recruitment, selec- tion, hiring, appraisal, training, retention, promotion assign- ment or transfer pursuant to law; to establish specifications for each class of positions and to classify or reclassify and to allocate or reallocate new or existing positions in accordance with law; to discipline and discharge employees for just cause; to determine the size and composition of the work force; to make temporary layoffs at its discretion; to contract out for goods and services; to determine the operating budget of the agency; to install new, changed or improved methods of operations; to relieve employees because of lack of work or for other legitimate reasons; to maintain the efficiency of the government operations entrusted to them; and to take whatever actions may be necessary to carry out the mission of the agency in situations of emergency. Nothing in this Article shall be construed to deprive the employees of any rights specifically set forth in this Agreement or deprive them of the right to the grievance procedure herein. 9. The layoff provision of Article 43 of the current agreement reads as follows: ARTICLE 43 Seniority Layoffs In cases of layoffs and demotions in lieu of layoff, for periods of more than four (4) workdays, the procedure shall be as follows: (a) the least senior employees within the classifications and applicable organizational unit involved shall be laid off or may exercise his/her right to "bump" in lieu of layoff, in accor- dance with the provision of this section. Should such employee desire to be laid off, and not exercise his/her right to "bump", he/she may sign a waiver attesting to his/her desire to be laid -9- off and subject to the conditions outlined in the waiver, a copy of which is shown in Appendix A; (b) in those instances where an employee is affected by (a) above, the affected employee may "bump" (1) the most junior employee within the applicable organizational unit in any occupa- tionally related classification which he/she has the ability to efficiently perform without training in the skills of the job, or (2) the most junior employee in a classification the affected employee has previously held. The affected employee shall be placed on the first step of the new pay range that results in at least a five percent (5%) pay reduction. In any case, the employee may only "bump" employees in the same or lower rate ranges. The so-called "bumped" employee will follow the same procedure in exercising the right to "bump" if it is available; (c) in those instances where the employees affected in (a) above cannot exercise the right to "bump", such employees shall be laid off; (d) any employee who wishes to exercise the right to "bump" an employee with less seniority must possess the abilities to efficiently perform the duties of the classification "bumped" into and must have the present ability to perform all of the duties of the applicable classification, without training in the skills of the job; (e) the State shall give employees about to be laid off a ten (10) workday notice of such layoff. Such employees shall be required to reply in writing within five (5) workdays of notice of layoff as to their decisions on layoff and displacement rights. Employees who are displaced as a result of the exercise of other employees' "bumping" rights pursuant to the provisions of this Article shall be given notice of a pending layoff as soon as practical and at least five (5) workdays before the effective date of the layoff. Such employees shall be required to reply in writing within five (5) workdays of notice of layoff as to their decision on layoff and displacement rights. (f) resigns from his/her employment. An employee is required to submit to the employer, at least fifteen (15) calen- dar days prior to the effective date of his/her resignation, a written notice of resignation. During the first five (5) days of such fifteen (15) day period the employee may retract his/her resignation without prejudice and such retraction must be accepted by the employer. Any retraction of the written resigna- tion, presented by the employee during the period beginning ten (10) days prior to the effective date of the written resignation and extending through the period of ten (10) days after the effective date of the resignation, may be accepted at the sole discretion of the appointing authority of the applicable agency. -10- An employee who accepts promotion to a position outside of the bargaining unit but within the agency, shall have the right to return to a vacant position within the bargaining unit pro- vided such return is not occasioned by a layoff. If such employee returns to a position within the bargaining unit within one (1) year of the date he left such unit, he shall be given: (a) the State service seniority credited at the time he/she left the bargaining unit, including all time accrued in the posi- tion promoted to and any subsequent position held prior to re- turning to the bargaining unit; (b) the total longevity credited at the time he returns to the bargaining unit; (c) should no vacancy exist, such employee shall be consi- dered to be on layoff from the last position held in the bargaining unit for a period of two (2) years minus time spent on the position outside the bargaining unit; and (d) any employee returning to the bargaining unit must have been classified to the applicable position and have the abilities to perform the duties of the position without training in the skills of the classification. 10. The third paragraph of the Termination provision of Article 56 of the current agreement reads as follows: ARTICLE 56 Term of Agreement Termination The parties agree that cost items resulting from compensation system collective bargaining currently being conducted pursuant to 26 M.R.S.A. 979-D(1)(E)(1)(g), (h), and (i) shall pursuant to 26 M.R.S.A. 979-D(1)(E)(4)(f) be submitted for funding as part of legislation submitted to fund the third year of the term of this Aqreement if the compensation system bargaining is concluded at that time. 11. The parties incorporate the remainder of the contents of the 1989-1992 collective bargaining agreement as if set out in full. 12. The cost items in the agreement reached between AFSCME and the State for the Institutional Services bargaining unit were submitted by the Governor to the 114th Legislature for fiscal years 1990 and 1991. The -11- Legislature, in turn, approved the economic terms of the collective bargaining agreement for fiscal years 1990 and 1991 as submitted by the Governor. The bill submitted by the Governor and approved by the Legis- lature contained the following language: Funding for fiscal year 1991-92. Funding and implementation of the economic terms of the collective bargaining agreement be- tween the State and the American Federation of State, County and Municipal Employees - Council #93 representing employees in the institutional services bargaining unit for the fiscal year ending June 30, 1992, shall be subject to approval and appropriation of $3,734,000 from the General Fund by the First Regular Session of the 115th Legislature. 13. On or about March 4, 1991, the Governor presented to the 115th Legislature his proposed budget for fiscal years 1992 and 1993 (L.D. 927 and 928). That budget includes a provision, for the Department of Finance, entitled Salary Plan, Personal Services; the sums of $20,000,000 (for fiscal year 1992) and $20,500,000 (for fiscal year 1993) are appropriated "to implement the collective bargaining agreement[sl." Included in those figures are funding for the July 1, 1991 pay raise and other cost items scheduled to go into effect during fiscal year 1992 as negotiated in the 1989-92 collective bargaining agreement for the Institutional Services bargaining unit. 14. The budget presented to the Legislature also includes a provision, entitled Salary Plan, Personal Services, which deappropriates $20,000,000 (for fiscal year 1992) and $20,500,000 (for fiscal year 1993), and which states: "Provides for the deappropriation of funds from the salary plan from implementing 20 days of unpaid temporary layoffs." 15. Prior to submitting his budget for fiscal years 1992 and 1993 to the Legislature, the Governor and/or his agents and representatives con- ducted no negotiations with AFSCME regarding the Governor's proposal to the Legislature for the twenty days per year referred to as "unpaid temporary layoffs" in the Governor's budget. 16. In the Governor's budget address of January 14, 1991, to the 115th Legislature he made the following statement in connection with the proposed "unpaid temporary layoffs": -12- Likewise, we have found including funding for costs of the third year of our collective bargaining agreement with our employees to be difficult. We are recommending that it be paid for through temporary lay-offs equal to the cost of the increase scheduled to take place this July lst. In view of the budgetary impact of these additional pay raises, I am eager to join with the unions in any effort to explore alternatives and urge them to be more constructive in meeting the new realities of our budget situation. 17. The Governor's proposed budget also includes a provision entitled EXECUTIVE DEPARTMENTS AND AGENCIES, Personal Services, which deappropriates $1,900,000 (for fiscal year 1992) and $11,500,000 (for fiscal year 1993), and which states: Provides for the deappropriation of funds to adjust the State's share of the costs of the dependents health insurance for fiscal years 1992 and 1993 from 60% to 50% as there is no approved HMO contract and to adjust the State's share of the costs of the employees health insurance for fiscal year 1993 from 100% to 80%. 18. From September of 1989, when the current collective bargaining agreement was signed, to the present, the State has been contributing 60% of the cost of dependents' health insurance; prior to that time, it was contributing 50%. 19. At current insurance rates, the reduction in the State's contribu- tion to dependents' health insurance would range from $7 to $16 per month; the reduction in the State's contribution to employees' health insurance would be $35 per month. 20. Since the institution of the biweekly pay period for State employees in 1976, employees have received their paychecks eleven days after the end of the pay period covered by those paychecks, except when payday falls on a holiday, in which case employees are paid on the 10th or 12th day. In a memo to State employees dated February 13, 1991, the Governor informed employees that payday would be moved one week further away from the end of the period covered by the paycheck. This is being accomplished by delaying paychecks one day in each of five pay periods during a period of seven months, ending in September of 1991. 21. On the same date, by Executive Order, the Governor ordered that "[b]eginning February 24, 1991, all State employees will be laid off without pay for a total of three (3) workdays prior to June 1, 1991 . . ." In lieu of this Order, employees in the Institutional Services bargaining unit are -13- being required to lose three days' pay through other means. 22. In a press release issued by Willis Lyford on the same date (February 13, 1991), the following statement appeared in connection with the change in payday and the three-day layoffs: The Governor cited the temporary layoff or furlough, an ori- ginal part of his budget balancing plan since last December, as key to avoiding hundreds of additional layoffs of state workers. The Governor had first called for twelve temporary lay off days as a way to realize personnel cost savings in state government, but later scaled back his plan [to three days] and addecl the pay day change as a means to minimize the financial impact on the workforce while still securing the necessary savings. 23. On or about March 11, 1991, AFSCME notified the State of its desire to negotiate over the change in the payday. AFSCME also made the required request to meet within ten days for the purpose of negotiations. 24. On March 26, 1991, AFSCME received a reply from the State inform- ing it that the State considered the date of the payment of wages not to be a negotiable subject. 25. In connection with his budget proposal to the 115th Legislature, the Governor has made the following projections: FY 1992 FY 1993 TOTAL A. PROJECTED REVENUES $1,491,583,252 $1,585,500,541 $3,077,084,793 B. DEPARTMENTAL APPROPRIATIONS REQUESTS FOR CURRENT SERVICES 1,932,081,216 2,076,227,063 4,008,308,279 C. GAP (A-B = C) ($ 440,496,964) ($ 490,726,522) ($ 931,223,486) D. GOVERNOR'S APPROPRIATIONS RECOMMENDATIONS FOR CURRENT SERVICES 1,847,324,529 1,979,192,974 3,826,517,503 E. GAP (A-D = C) ($ 355,740,277) ($ 393,692,433) ($ 749,432,710) -14- 26. In connection with his budget proposal to the 115th Legislature, the Governor has made the following proposal for making up the projected deficit: Gap $749,432,710 Proposed "Current Services" Reductions: Major Components: - "Part B" Reductions ($431,915,138) - State Employee Health Insurance (13,400,000) - Retirement System Proposals (120,953,000) - Supplement Appropriations 3,861,292 ($562,406,846) New Revenue 150,832,105 "Part 2" Reductions (LD 928) (36,522,113) PROJECTED BALANCE $ 328,354 FINDINGS OF FACT Upon review of the record, including oral testimony and documentary evi- dence, the Board makes the following additional findings of fact: 1. The level of the State's contribution toward the cost of dependents' health insurance premiums is not set by statute. 2. At some point prior to completion of negotiations for the current agreement, the State decided that it would like to be able to offer its employees an alternative to its traditional Blue Cross/Blue Shield health plan ("BC/BS"), in order to reduce its health care costs. Under the terms of the current agreement (Article 23), as well as agreements with the other unions that represent State employees, the State Health Care Commission was directed to offer at least two health insurance plan options to employees before July 1, 1990 (approximately 10 months after the agreements were signed). It was the Commission's intent, at the time those collective bargaining agreements were negotiated and signed, to offer BC/BS and a preferred provider organization ("PPO") as the two options. -15- 3. As an inducement to AFSCME and the other unions to let the State offer options other than BC/BS to employees, the State bargained to increase its contribution to the cost of dependents' health insurance pre- miums from 50% to 60% under the the traditional BC/BS plan (the State was contributing 50% under the previous collective bargaining agreements). The current agreement is silent on this matter -- both on the State's contribu- tion in the ten months before the new option was to be in place, and on what the State's contribution would be under the traditional plan once the new plan was available. Article 23 does specify that once two options are available to employees, the State will contribute no less than 60% of the cost of dependents' health insurance premiums under the new option. 4. At the time the current agreement was signed, it was the Health Care Commission's intention that once the second option was in place, the State's contribution to dependents' coverage under BC/BS would be reduced to something below 60%, in order to give employees an incentive to switch to the new, less expensive option. This intention was not mentioned to AFSCME during negotiations for the current agreement; AFSCME was aware of it through its representative on the Health Care Commission. 5. In early April of 1990, the State, realizing that due to regulatory problems the Health Care Commission would not have a PPO in place by July 1, 1990, contacted AFSCME to set up a meeting to discuss the situation; in a meeting on April 5th, the State indicated that the Commission intended to put a slightly different alternative, a Health Maintenance Organization ("HMO"), in place by October of 1990, and stated that it would continue to pay 60% of the cost of dependents' health care premiums under BC/BS until July 1, 1991. 6. No new option was in place by October of 1990. In November, the State met with AFSCME because it realized that the HMO would not even be in place by July 1, 1991, and that alternatives to both the PPO and HMO would need to be explored. In December of 1990 the State met with all of the unions that represent State employees, for the same purpose. At both meetings, the State reiterated its intention to pay 60% of dependents' health insurance premiums until July 1, 1991. -16- DISCUSSION AFSCME has alleged the following violations by the Repondents: 1) that the Governor failed to advocate full funding for the last year of the ISU agreement, as required by both 26 M.R.S.A. 979-D(1)(E)(3) (Supp. 1990) and Article 10 of the current agreement, because in his 1992-93 biennium appropriations bill, along with a line item to fund the current agreement, the Governor included an offsetting deappropriation, equal in amount, to implement 20 days of unpaid layoffs; 2) that the proposal for 20 days of layoffs during the last year of the current agreement violates the seniority provisions of that agreement and constitutes a refusal to bargain collectively under 26 M.R.S.A. 979-C(1)(E); 3) that the Governor has advocated in the biennium budget a reduction, from 60% to 50%, in the State's contribution toward dependents' health insurance premiums for the last year of the current agreement, which action violates the current agreement and constitutes a refusal to bargain collectively under 26 M.R.S.A. 979-C(1)(E); 4) that the Governor's recent implementation of a series of one- day delays in the issuance of biweekly paychecks is a unilateral change that constitutes a refusal to bargain pursuant to 26 M.R.S.A. 979-C(1)(E); and 5) that for the second year of the biennium, for which no collective bargaining negotiations have yet occurred, the Governor has advocated in the biennium budget 20 days of unpaid layoffs, the 10% reduction in the State's contribution to depen- dents' health insurance premiums, and a reduction, from 100% to 80%, in the State's contribution toward employee health insurance premiums, which actions constitute a refusal to bargain pursuant to 26 M.R.S.A. 979-C(1)(E). In its response the State asserts that the Governor has submitted legisla- tion to fund the economic terms of the current agreement as required by SELRA, and his decision to advocate offsetting savings through layoffs is irrelevant; that the current agreement permits the 20 days of layoffs; that pay dates are prescribed or controlled by public law and therefore are not subject to bargaining under SELRA; that the State's contribution to employee health insurance premiums is prescribed and controlled by law and therefore is not subject to bargaining; that AFSCME has waived its right to bargain over any changes or proposed changes that are the subject of the -17- Complaint; and that for changes that have been proposed and not imple- mented, the controversy is not ripe. Each allegation and response will be addressed. Failure to advocate funding AFSCME moved to withdraw this allegation, and its motion was granted by the Board. Consequently this allegation will not be addressed further. 1993 budget proposals The last allegation can be addressed with little discussion. The Board finds no violation of SELRA in the State's submission of a 1993 budget proposal that reduces the State's contribution for both employee and dependents' health insurance premiums and calls for 20 days of unpaid layoffs for employees. The State's contribution for employee health insurance is currently 100% and is set by statute. 5 M.R.S.A. 285(7) (Supp. 1990). Since this term and condition is "prescribed or controlled by public law," the State is under no obligation to negotiate the State's contribution during bargaining for the next ISU collective bargaining agreement. 26 M.R.S.A. 979-D(1)(E)(1). The State is free to seek, without negotiating with AFSCME, a change in section 285(7); presumably it will do so if its budget proposal is approved by the Legislature.1 Regarding the proposed 20 days of layoffs and the proposed reduction in the State's contribution toward dependents' health insurance premiums for fiscal year 1993, there is nothing in SELRA that prohibits the Governor from making these proposals. The Board wishes to make clear, however, that since neither employee layoffs nor employer contribution toward dependents' health insurance premiums is a subject currently "prescribed or controlled by public law," and both therefore are mandatory subjects of bargaining, approval of the Governor's budget proposals by the Legislature would not remove these items from the bargaining table when the next ISU agreement is negotiated. Any agreements on cost items reached during those negotiations, to the extent they are inconsistent with the approved 1993 budget, must be submitted to the Legislature in a supplemental appropri- ________________________ 1ln order for the contribution level to be changed, the statute setting that level must be amended. -18- ations bill pursuant to 26 M.R.S.A. 979-D(1)(E)(3). Paycheck delays In March of 1991, the Governor began implementing a cost-saving measure in which the payment of employee wages would occur on the 15th rather than the 14th day after the previous payday. The one-day delay was set to occur on five separate occasions over a seven-month period (March through September). AFSCME argues that the series of one-day delays in paychecks effectively postpones payment of one week's pay until employees leave State service. The State argues that the effect of the change is simply to move the payday one week further away from the pay period. The State's first defense to its action is that because the pay dates are prescribed or controlled by public law, the State is under no obliga- tion to bargain the change. If the statute itself permitted the change, or if the parties' collective bargaining agreement did not prohibit the change without bargaining, we would agree. The frequency of paychecks for State employees is set by statute as biweekly: All state officers and employees, except temporary and seasonal employees, shall be paid their salaries or wages biweekly, the dates of payment to be determined by the State Controller. 5 M.R.S.A. 10 (1989).2 Webster's Third New International Dictionary defines biweekly as "occurring or appearing every two weeks: having a two- week interval between occurrences."3 Given that definition, the Board finds it impossible not to conclude that the Governor's decision to pay employees every 15 days rather than every 14, in a series of five pay ________________________ 2In 1976, when the Controller established the biweekly dates of payment pursuant to section 10, he also collaterally established an eleven-day lag time between the end of the pay period and the issuance of paychecks for that pay period. This lag time has not varied since 1976, except by necessity -- when the payday falls on a holiday. 3An alternate meaning is "appearing or occurring twice a week." The preferred term for this situation is "semiweekly." -19- periods, is contrary to section 10. Article 28 of the current collective bargaining agreement between the parties reads as follows: Maintenance of Benefits With respect to negotiable benefits, terms and conditions affecting members of this unit, which are not covered by the Agreement, but which are presently provided pursuant to law, written regulations, personnel rules, written directives, or special orders, the State agrees to make no changes without appropriate prior consultation and negotiation with the Union. [Emphasis added.] In effect, Article 28 incorporates by reference all negotiable4 benefits, terms and conditions of employment that were provided by law5 at the time the agreement was signed. 5 M.R.S.A. 10, which existed at the time the collective bargaining agreement was signed, requires payment of wages on a biweekly basis. By the plain language of Article 28, that term or con- dition of employment was incorporated into the agreement, and the State agreed not to change it unless it first negotiated such change with AFSCME. The State's assertion that pay dates are not a negotiable subject because they are prescribed or controlled by public law is correct. However, there is nothing to prohibit the State from bargaining to refrain from certain activities -- in this case, from seeking to change the statute (or acting contrary to it) unless it has bargained with AFSCME to do so. That is precisely what the State has done in Article 28. When AFSCME heard about the proposed modification of pay dates, it notified the State in writing of its desire to bargain the proposed change. ________________________ 4That is, benefits, terms and conditions that would be negotiable if they weren't set by statute and therefore were not prescribed or controlled by public law within the meaning of 26 M.R.S.A. 979-D(1)(E)(1) (1988). At what point in time employees are paid for the work they perform is a negotiable (mandatory) subject. Bath Firefighters Assoc. v. City of Bath, No. 80-44, 3 NPER 20-12002 (Me.L.R.B. Oct. 17, 1980), appeal dismissed sub nom City of Bath v. M.L.R.B., No. CV-80-114 (Me. Super. Ct., Sag. Cty., May 2, 1983). 5 Benefits, terms and conditions provided by rules, regulations, direc- tives or orders are also incorporated by reference, but do not concern us here. -20- The State refused to negotiate and implemented the proposal unilaterally, without even seeking to make a statutory change. In refusing to bargain the change in pay dates with AFSCME, the State violated Article 28 of the current collective bargaining agreement. It also violated SELRA. The State relies on State of Maine v. Maine State Employees Association, 499 A.2d 1228 (1985), for its second defense -- its assertion that AFSCME has clearly and unmistakably waived its right to bargain over the modified pay dates. The State's reliance is misplaced. In State of Maine, the State's unilateral change was specifically permitted by the contract be- tween the parties, and the "statutory duty to negotiate over the impact of [the change] could have been preserved in the contract. That statutory obligation was waived [in the zipper clause]." Id. at 1232. In the matter before us, Article 28, in clear and unmistakable language, reserves the right to negotiate over changes in any benefits, terms and conditions provided by law and incorporated by reference, by that article, into the ISU agreement. (It does not reserve the right to nego- tiate over benefits, terms and conditions found elsewhere in the agreement.) While Article 17, Embodiment of Agreement, is indeed a broad zipper clause that protects both parties from mid-term bargaining as a general matter, Article 28 clearly overrides that zipper clause with respect to items referred to in that article. We know of nothing that pro- hibits the parties from negotiating a broad zipper clause and also nego- tiating explicit exceptions to that clause. (In fact, that is precisely what the Court in State of Maine indicated MSEA should have done with respect to impact bargaining.) The parties did so here. We find that the State's refusal to bargain the modification in pay dates violates 26 M.R.S.A. 979-C(1)(E) (1988). The State's suggestion, based on State of Maine, that violation of Article 28 invokes the parties' grievance procedure and not Board action also fails. SELRA provides that the Board's power to prevent prohibited acts "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise." 26 M.R.S.A. 979-H(1) (1988). Where a complainant has alleged violations of SELRA and not simply contract violations, the Board is authorized to -21- interpret contract provisions in Order to determine whether a violation of SELRA has occurred. State of Maine, supra at 1230. In State of Maine, the Court pointed to the grievance procedure as MSEA's only remedy because it had found that the contract violation did not constitute a failure to bargain under SELRA. That is not the case here. In the matter before us we find that such a violation occurred, because AFSCME did not waive its right to bargain over the modification of pay dates. The State's grievance argument is unpersuasive for a second reason. In interpreting a provision parallel to section 979-H(1) in the collective bargaining statute that covers municipal employees, the Board has stated: A plain reading of this section [26 M.R.S.A. 968(5)(A)l of the Act is that, when a single action or occurrence constitutes a prohibited practice and also is a violation of the collective bargaining agreement, the Board is empowered to rectify the situation, despite the fact that a contractual remedy may exist therefor. In instances where the aggrieved party has sought redress through both the Board's prohibited practices procedure and through the contractual grievance mechanism, the Board will, in appropriate circumstances, defer to the arbitral process while retaining jurisdiction over the prohibited practices complaint "for the purpose of taking appropriate action should further pro- ceedings be required." [Citation omitted.] Coulombe v. City of South Portland, No. 86-11, slip op. at 9-10, 9 NPER ME-18008 (Dec. 29, 1986). The Board's Rules and Procedures provide respon- dents in prohibited practice cases with the opportunity to request deferral to any applicable grievance procedure (Rules 4.05, 4.07). In the matter before us, the State chose not to avail itself of that opportunity. Were this Board to find, using the Law Court's analysis in State of Maine, that AFSCME had waived its right to bargain over the modification in pay dates, we would nevertheless find that the State had violated SELRA. A waiver of the right to mid-term bargaining, through a zipper clause or otherwise, does not give parties carte blanche to unilaterally change the terms of the agreement they have negotiated. Such unilateral changes, if serious enough, may constitute interference, restraint or coercion separate and apart from any violation in connection with the duty to bargain. At what point in time employees are paid for the work they perform is understandably of major concern to them. The fact that the Governor is in -22- the process of withholding what will eventually be a full week's pay until employees leave State service is no small matter, particularly for employ- ees at the lower pay ranges. Some employees will not see that week's pay for 20 years. Accordingly, we find that the State's unilateral modifica- tion in pay dates, in violation of the statute that sets pay dates and the parties' collective bargaining agreement, constitutes interference, restraint and coercion and therefore violates section 979-C(1)(A) of SELRA. 26 M.R.S.A. 979-C(1)(A) (1988). In order to effectuate the policies of SELRA, we will order the Respondents to cease and desist from further implementing the pay date modification plan with respect to members of the Institutional Services unit, and to reinstitute the schedule of pay dates that existed prior to implementation of the new schedule. For Cycle A employees, the next three pay dates under the new schedule are June 3, June 17 and July 1, 1991. For Cycle B employees they are June 10, June 24 and July 8, 1991. In order to give the State a reasonable period of time to reinstitute the original schedule, we will order that Cycle A employees be paid on June 3, June 17, June 26 and biweekly thereafter. Cycle B employees will be paid on June 10, June 19 and biweekly thereafter. We will also order Respondents to sign, date and post, within 7 calen- dar days of the date of issuance of this decision and order, at all loca- tions where notices to members of the ISU are customarily posted, and at times when such employees customarily work at those places, copies of the attached "Notice." The Notice shall remain posted for 30 calendar days, and the State shall notify the Executive Director, in writing, within 7 calendar days after posting of the Notice, of the steps that have been taken to comply with our order. Dependents' health insurance premiums (FY92) In his biennium budget, the Governor has proposed that for the last year of the current agreement, the State's contribution toward dependents' health insurance premiums be reduced from 60% to 50%. AFSCME's position that the proposed reduction violates the current agreement is not supportable. -23- In order to reduce health care costs, the State decided that it would like to offer employees a less expensive alternative to the Blue Cross/ Blue Shield plan that it has traditionally offered. Article 23 of the ISU agreement reflects the agreement of the parties that the State Employee Health Commission would offer at least two health plan options by July 1, 1990, 10 months after the agreement was signed. During negotiations for the current agreement, in order to get the unions representing State employees to agree to let the State offer one or more alternatives to BC/BS, the State offered a "sweetener" -- it offered to increase its contribution toward dependents' insurance premiums under the traditional plan (BC/BS) from 50% to 60%. Although it wasn't mentioned in connection with negotiations, the State intended that once the second option was in place, it would reduce its contribution under the traditional plan in order to give employees an incentive to switch to the new plan. For some inexplicable reason, the parties did not incorporate the "sweetener" -- the agreement to pay 60% under the traditional plan -- into Article 23, although they both admit that such an agreement was made. Article 23 is silent not only on the State's contribution for the first year of the contract, before the new plan was scheduled to be in place; it is also silent on what the State's contribution would be under the traditional plan once the alternative to that plan was in place. (Article 23 specifies that the State's contribution would be no less than 60% for the new option.) Even more inexplicably, the parties did not even discuss, let alone specify in the contract, what would happen if an alternative to BC/BS could not be made available by July 1, 1990, as planned. Unfortunately, that is precisely what occurred. According to a witness for the State, when the State realized, on two successive occasions, that it would not be able to have an alternative plan in place, it agreed to continue its 60% contri- bution under the traditional plan (BC/BS) until July 1, 1991. AFSCME argues that since it was not responsible for the Health Care Commission's failure to put an alternative plan in place, the State should not now be able to reduce its contribution to dependents' health insurance premiums back to the 50% that was bargained under the previous contract between the parties. The State argues that the current agreement permits -24- it to make the change. We agree with the State. From the testimony concerning this issue at hearing, one thing is clear: there was no meeting of the minds on the issue of what the State's contribution would be under the traditional plan after July 1, 1990, whether or not an alternative plan had been put in place as scheduled. In the absence of a zipper clause, parties under these circumstances would be required to go back to the bargaining table and negotiate the State's contribution for the last year of the contract, since payment of depen- dents' health insurance premiums is a mandatory subject. Since the current agreement contains a zipper clause under which the parties "shall not be obligated to bargain collectively with respect to any subject matter referred to or not referred to, covered or not covered in this Agreement," no bargaining is required. Accordingly, this allegation will be dismissed. Violation of the seniority provisions of the contract AFSCME alleges that the State's proposal in the biennium budget to lay employees off for 20 days during the last year of the current agreement violates the seniority provisions of that agreement and therefore consti- tutes a refusal to bargain. The State responds that the contract permits the layoffs; that the controversy is not ripe; and that AFSCME has waived its right to bargain the issue of layoffs.6 We will address the issue of ripeness first. We are not persuaded by the State's argument that since the layoffs in the Governor's budget have not yet been approved by the Legislature, the allegation must be dismissed for lack of ripeness. First, the Governor has done all he can do to see that the layoffs occur, and it is the Governor who is ultimately responsible to see that the State abides by the contract. 26 M.R.S.A. 979-A(5) (1988). There is no doubt in our minds that if the Legislature approves the deappropriation, the Governor will implement the ________________________ 60riginally AFSCME's allegation regarding seniority was made in con- nection with its allegation that the Governor had failed to advocate funding for the last year of the contract, as he is required to do by SELRA. Since AFSCME has withdrawn that aspect of its complaint, the Board must look at the alleged violation of the seniority provisions as an alle- gation of unilateral change. -25- layoffs in some manner. In addition, requiring AFSCME to come back later, after the Legislature approves the budget, does a service to no one. The Legislature, in deciding whether or not to approve the $20,000,000 deappropriation in its current form (that is, to be saved through the 20 days of layoffs for each employee), would not have the benefit of knowing whether implementation of the Governor's proposal will violate the ISU collective bargaining agreement. It should have that information before it makes a decision. We will now address the second aspect of the State's ripeness argument -- the fact that the layoffs have not been implemented -- in the context of the allegation itself. Article 43 states in part: Layoffs and recalls to work for a period of four (4) work- days or less shall be deemed temporary and shall not be subject to the provisions of this Article. Layoffs In cases of layoffs and demotions in lieu of layoff, for periods of more than four (4) workdays, the procedure shall be as follows: . . . That article then goes on to provide a detailed seniority system that includes the right to "bump" less senior employees in the same organiza- tional unit in any occupationally related job classification that the more senior employee is able to perform without additional training. The State argues that because Article 29, Management Rights, permits the State "to make temporary layoffs at its discretion," and AFSCME has presented no evidence that the temporary layoffs will be implemented in a manner which would violate the seniority provisions of the contract, no violation of the contract has occurred. We agree. The management rights article places no limit on either the number of temporary layoffs that the State may implement, or on the number of employ- ees that may be affected by such a layoff. Consequently, if his proposal for 20 days of layoffs for each employee is implemented in such a way that no ISU employee is laid off for more than four days in a row, the Governor may implement his plan without violating the seniority provisions of the -26- current agreement. We are under no illusion that the parties contemplated such a mass layoff when they negotiated the management rights article and the seniority provisions. However, where the contract is silent, there is nothing for this Board to interpret, and the intentions of the parties are not relevant to our consideration of this allegation. Accordingly, we will dismiss this allegation of the complaint, without prejudice to AFSCME's right to return to this Board should the layoffs be implemented in in a manner, as indicated in this decision, that would violate the seniority provisions of the contract. ORDER On the basis of the foregoing stipulations, 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. 979-H (1988), it is hereby ORDERED: 1. That the Respondents and their representatives and agents shall: a. Cease and desist from refusing to bargain with members of the Institutional Services bargaining unit by failing to maintain the statutorily provided benefit of payment of wages on a biweekly basis. b. Cease and desist from interfering, restraining and coercing members of the Institutional Services bargaining unit in the exercise of their collective bargaining rights by failing, as required by Article 28 of the 1989-92 collective bargaining agreement, to maintain the statutorily provided benefit of payment of wages on a biweekly basis. c. Cease and desist from further implementing the pay date modification plan with respect to members of the Institutional Services bargaining unit. d. Take the following affirmative actions that are necessary to effectuate the policies of SELRA: i. Reinstitute the schedule of pay dates for members of the Institutional Services bargaining unit that existed prior to implementation of the new schedule. Cycle A employees shall be paid on June 3, June 17, and June 26, 1991, and biweekly thereafter. Cycle B employees shall be paid on June 10 and June 19, 1991, and biweekly thereafter. ii. Sign, date and post, within 7 calendar days of the date of issuance of this decision and order, at all locations -27- where notices to members of the Institutional Services bargaining unit are customarily posted, and at times when such employees customarily perform work at those places, copies of the attached "Notice." The Notice shall remain posted for 30 days. iii. Take such reasonable steps as may be necessary to ensure that said posted notices are not altered, defaced, or covered while they are posted pursuant to this Order. iv. Notify the Executive Director, in writing, within 7 calendar days of the posting of the Notice, of the steps that have been taken to comply with the Board's Order. 2. That allegations regarding the Governor's fiscal year 1993 budget proposals, the proposal for 20 days of layoffs in fiscal year 1992, and the proposed reduction in the State's contribution toward dependents' health insurance coverage for fiscal year 1992, from 60% to 50%, are dismissed. Dated at Augusta, Maine, this 31st day of May, 1991. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 /s/________________________ M.R.S.A. 979-H(7) (1988), to Peter T. Dawson seek review of this Decision Chair and Order by the Superior Court. To initiate such a review an appealing party must file a /s/________________________ complaint with the Superior Howard Reiche, Jr. Court within fifteen (15) days Employer Representative of the date of receipt hereof, and otherwise comply with the requirements of Rule 80C of the Maine Rules of Civil Procedure. Employee Representative George W. Lambertson filed a separate opinion, dissenting in part. OPINION I agree with the results reached by my colleagues on all allegations except one. I believe that the Governor's proposal for 20 days of layoffs for all employees in the Institutional Services bargaining unit in fiscal year 1992 violates the seniority provisions of the current agreement and -28- constitutes interference, restraint and coercion. Article 43 of the collective bargaining agreement defines temporary layoffs as "layoffs and recalls to work for a period of four (4) workdays or less." No doubt it is the Governor's intention, if the Legislature approves his layoff proposal, to schedule (or allow employees to schedule) the layoffs so that employees are not laid off for any period of five consecutive days. While such a plan would on its face appear not to violate the seniority provisions, I believe it would fly in the face of the intent of the parties when the management rights article and the seniority provisions were negotiated. By the State's logic, it is entitled not only to implement the layoffs proposed in the budget, but could if it desired, other than for essential employees, turn State government into a one-day-a-week operation (one day on, four days off), in spite of the fact that Article 25, Hours of Work, specifies that "[t]he basic workweek shall be forty (40) hours." Because the Legislature is the keeper of the purse strings, SELRA sets up a procedure whereby the the parties negotiate a contract and the Governor is required to submit the cost items of that contract to the Legislature for approval. If cost items are not approved, the parties go back to the table for further negotiations. However, the Legislature does not have authority to change the noneconomic terms of the contract -- the parties are bound by what they negotiate. In the matter before us, the 20 days of layoffs are not being submitted as a cost item in connection with the contract. They are being submitted as a cost-cutting measure. While the Governor has every right, and in fact a responsibility, to propose a balanced budget, he has the obligation, under SELRA, to abide by the noneconomic terms of the contract that he negotiated, including the seniority provisions. In proposing 20 days of layoffs for all employees, rather than permanent layoffs for many fewer employees, he has abrogated that responsibility. I cannot condone manipu- lation of contract provisions that AFSCME negotiated in good faith, simply so that the Governor can spread the pain inherent in the budget cuts that he is contemplating. While the desire to do so is understandable, the State bargained a contract that it should have to live with unless it nego- -29- tiates with AFSCME to do otherwise. Having found that the contract has been violated, I will address the State's argument that AFSCME has waived its right to bargain on any uni- lateral change, including violation of the seniority provisions of the contract. I agree that by the reasoning of the Law Court in State of Maine, by which the Board is bound, AFSCME has given up its right to bargain changes in the provisions of the contract by agreeing to Article 17, the so-called zipper clause. I hasten to point out, however, that the State too has waived that right, and has no authority to change the terms and conditions of the contract unilaterally. (The State argues in its brief that because AFSCME has waived its right to bargain, "the Governor's propo- sal for layoffs during fiscal year 1992 is not an unlawful unilateral change." I assume the State to mean not that it can violate the terms of the contract at will, but rather that AFSCME must utilize the parties' grievance procedure to cure the alleged contract violation.) While this is the type of violation that could be addressed through the grievance procedure, I note, as the Board has noted elsewhere in this deci- sion and order, that the State did not avail itself of the opportunity to request deferral to the grievance procedure at the time the complaint was filed. I also point out, as pointed out previously, that the Board has the authority to interpret contract provisions to determine whether a violation of SELRA has occurred. Finally, refusal to hear the matter in deference to arbitration would present the same problems in connection with the legisla- tive process as would be presented had my colleagues found that the contro- versy was not ripe. I have looked at this matter carefully, and would find, as the Board found with respect to the modification of pay dates, that because of its seriousness -- that is, because of the major impact that it will have on employees in the ISU -- 20 days of layoffs for members of the Institutional Services bargaining unit rises to the level of interference, restraint and -30- coercion, independent of any duty to bargain that may or may not exist. Accordingly, I would find that the State has violated 26 M.R.S.A. 979-C(1)(A) (1988). Dated at Augusta, Maine, this 31st day of May, 1991. MAINE LABOR RELATIONS BOARD /s/________________________ George W. Lambertson Employee Representative -31- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE NOTICE TO ALL EMPLOYEES IN THE INSTITUTIONAL SERVICES BARGAINING UNIT Pursuant to a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the STATE EMPLOYEES LABOR RELATIONS ACT you are hereby notified that: 1. Governor McKernan and the State of Maine will cease and desist from failing to maintain the statutorily provided benefit of payment of wages on a biweekly basis. 2. Governor McKernan and the State of Maine will cease and desist from further implementing the pay date modification plan. 3. Governor McKernan and the State of Maine will reinstitute the schedule of pay dates that existed prior to implementation of the new schedule. Cycle A employees will be paid on June 3, June 17 and June 26, 1991, and biweekly thereafter. Cycle B employees will be paid on June 10 and June 19, 1991, and biweekly thereafter. 4. Governor McKernan and the State of Maine will, within seven calendar days of the posting of this Notice, notify the Maine Labor Relations Board, in writing, at its offices in Augusta, Maine, of the steps that have been taken to comply with the Board's Order. STATE OF MAINE Dated: ____________________________ Kenneth A. Walo, Director Bureau of Employee Relations If employees have questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333. Telephone 289-2015. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-18 Issued: June 5, 1991 _______________________________________ ) AFSCME COUNCIL 93, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) ON MOTION FOR STAY GOVERNOR McKERNAN and STATE OF MAINE, ) OF FINAL AGENCY ACTION ) Respondents. ) _______________________________________) On May 31, 1991, the Maine Labor Relations Board ("Board") issued a Decision and Order in Case No. 91-18. In its decision, the Board found that the Respondents had violated 26 M.R.S.A. 979-C(1)(A) and (E) (1988), and ordered them to cease and desist from implementing the State's pay date modification plan with respect to members of the Institutional Services bargaining unit ("ISU"). It further ordered Respondents to reinstate the schedule of pay dates that had existed prior to implementation of the new schedule, with the original schedule to be reinstated as of June 26, 1991, for Cycle A employees and June 19, 1991, for Cycle B employees. On June 4, 1991, pursuant to Rule 8OC(b) of the Maine Rules of Civil Procedure, 5 M.R.S.A. 11004 (1989) and 26 M.R.S.A. 979-H(7) (1988), the State of Maine ("State") filed a Motion for Stay on Final Agency Action and a Memorandum in Support of Respondent's Motion for Stay. At the same time, the State served on the Board a copy of its petition for review of the Board's order pursuant to Rule 80C of the Maine Rules of Civil Procedure, which petition was filed in Superior Court on June 3rd. The Board convened an expedited hearing on the State's motion for stay on June 5, 1991. Chair Peter T. Dawson presided at the hearing, accompanied by Howard Reiche, Jr., Employer Representative, and George W. Lambertson, Employee Representative. Julie Armstrong, Esquire, represented -1- the State, and Stephen P. Sunenblick, Esquire, represented AFSCME. The par- ties were afforded the opportunity to present evidence to make oral argu- ment. Neither party requested the opportunity to file a written brief, and no request for briefs was made by the Board. JURISDICTION The jurisdiction of the Board to hear prohibited practice cases, and to render decisions and orders pursuant thereto, lies in 26 M.R.S.A. 979-A(5) (1988). DISCUSSION In its motion for stay, the State asserts that compliance with the Board's order would result in substantial and irreparable harm to the State; that there is a strong likelihood that the State will prevail on the merits in its 80C appeal; and that no substantial harm to AFSCME, to the Board or to the general public will result if the stay is granted. AFSCME responds that the Law court has ruled that the Administrative Procedure Act does not apply to appeals of Board decisions (Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010 (Me. 1980)); that section 979-H(7) (1988) of the State Employees Labor Relations Act ("SELRA") confers the authority to grant a stay on Superior Court;1 and therefore that the Board has no authority to grant the stay requested by the State. In an affidavit accompanying the State's motion and supporting memoran- dum, the Controller for the State asserts that 1) implementing the order with respect to members of the ISU will cost approximately $1.4 million; 2) implementation of the order for employees in the ISU, without imple- ____________________________ 1Section 979-H(7) of SELRA states, in part: Pending review and upon application of any party in interest, the Court may grant such temporary relief or restraining order and may impose such terms and conditions as it deems just and proper; provided that the board's decision and order shall not be stayed, except where it is clearly shown to the satisfaction of the court that substantial and irreparable injury will be sustained or that there is substantial risk of danger to the public health or safety. -2- menting it for other State employees as well, may be impossible within the time frame established in the order; 3) implementation for all employees will cost approximately $5.3 million; 4) the $5.3 million savings has been deappropriated, and only the Legislature can reappropiate it; 5) the State is constitutionally required to have a balanced budget; and 6) there is no practical way for the State to raise $5.3 million by June 30, 1991, to implement the Board's order. Given both the appellate procedures spelled out in SELRA and the Sanford decision, it is not clear that the Board has the authority to issue a stay pursuant to the Administrative Procedure Act, 5 M.R.S.A. 11004. We need not reach that decision, however, because by agreement of the parties, the Board will modify its May 31st order to address the diffi- culties in complying with the order that the State has raised in its motion. Accordingly, we will modify our order to require reinstatement of the original schedule of pay dates for members of the ISU, beginning on July 24, 1991, rather than on June 26, 1991, for Cycle A employees, and on July 17, 1991, rather than June 19, 1991, for Cycle B employees. The remainder of the May 31st order will remain in effect. ORDER On the basis of the record at hearing and the agreement of the parties, and pursuant to and by virtue of the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 979-H (1988), it is hereby ORDERED: 1. That paragraph 1(d)(i) of the order issued on May 31, 1991, in Case No. 91-18 is modified as follows: i. Reinstitute the schedule of pay dates for members of the Institutional Services bargaining unit that existed prior to implementation of the new schedule. Cycle A employees shall be paid on June 3, June 17, July 1, July 16 and July 24, 1991, and biweekly thereafter. Cycle B employees shall be paid on June 10, June 24, July 8 and July 17, 1991, and biweekly thereafter. -3- 2. That the attached, amended Notice will be substituted for the Notice attached to the order of May 31, 1991, and posted in accordance with paragraph 1(d)(ii) of that order. 3. That the remainder of the May 31st order will remain in effect. Dated at Augusta, Maine, this 5th day of June, 1991. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 /s/________________________ M.R.S.A. 979-H(7) (1988), to Peter T. Dawson seek review of this Decision Chair and Order by the Superior Court. To initiate such a review an appealing party must file a /s/________________________ complaint with the Superior Howard Reiche, Jr. Court within fifteen (15) days Employer Representative of the date of receipt hereof, and otherwise comply with the requirements of Rule 80C of the /s/________________________ Maine Rules of Civil Procedure. George W. Lambertson Employee Representative -4- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE __________________________________________________________________________ NOTICE TO ALL EMPLOYEES IN THE INSTITUTIONAL SERVICES BARGAINING UNIT Pursuant to a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the STATE EMPLOYEES LABOR RELATIONS ACT you are hereby notified that: 1. Governor McKernan and the State of Maine will cease and desist from failing to maintain the statutorily provided benefit of payment of wages on a biweekly basis. 2. Governor McKernan and the State of Maine will cease and desist from further implementing the pay date modification plan. 3. Governor McKernan and the State of Maine will reinstitute the schedule of pay dates that existed prior to implementation of the new schedule. Cycle A employees will be paid on June 3, June 17, July 1, July 16, and July 24, 1991, and biweekly thereafter. Cycle B employees will be paid on June 10, June 24, July 8, and July 17, 1991, and biweekly thereafter. 4. Governor McKernan and the State of Maine will, within seven calendar days of the posting of this Notice, notify the Maine Labor Relations Board, in writing, at its offices in Augusta, Maine, of the steps that have been taken to comply with the Board's Order. STATE OF MAINE Dated: ____________________________ Kenneth A. Walo, Director Bureau of Employee Relations If employees have questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333. Telephone 289-2015.