The dispute over the extent of the governor's right to restructure state government as he wishes is entering a new phase, following a new legal complaint that pits state workers' rights against those of the executive branch.
The Maine State Employees Association, responding to a Maine Labor Relations Board ruling on Aug. 6, filed an amended complaint Aug. 27 detailing when and how Gov. Paul LePage allegedly violated terms of the labor contract that expired last September.
The amended complaint, filed a day before its deadline, asks the labor board to provide temporary relief pending a final decision on whether LePage is within his rights to restructure or subcontract work performed by unionized state employees, without bargaining, while the state is negotiating a new labor agreement with the 14,000-member MSEA. As a remedy, MSEA asks the MLRB to order the
state to "commence bargaining in good faith" over the extent of those rights.
The LePage administration has argued that MSEA waived its bargaining rights with respect to "contracting out" or "restructuring" under the contract that expired last fall, making both activities allowable under a status quo proviso in that contract. In the amended complaint, however, MSEA's lawyer, Timothy Belcher, asserts the "contracting out article" expired with the labor agreement and states the union must be notified and given the opportunity to negotiate any proposed contracting out or restructuring of state union employee jobs.
It's no small legal question, given the pending merger of the departments of Conservation and Agriculture and the absorption of the State Planning Office into the Department of Economic and Community Development. Both actions, endorsed by lawmakers to improve efficiency in state government, could potentially affect hundreds of state workers.
The MSEA's original complaint, filed on Feb. 22, had been dismissed in April by Marc Ayotte, executive director of the board, on the grounds that it failed "to state a claim upon which relief may be granted by the board." MSEA then filed an appeal, sending it to the three-member board for a ruling.
On Aug. 6, the board upheld the state's legal arguments, concluding: "We expressly reject the union's argument that any action taken by the state to reorganize or contract out unit work without bargaining is an unlawful unilateral change based on the theory that the authority to do so expired with the termination of the agreement."
But the board also allowed MSEA to amend and resubmit the complaint, instructing that the new one provide specific examples to support the original's generalized allegations, and demonstrate how alleged actions by the LePage administration represent "a change from established practice."
Belcher's 13-page amended complaint now offers specifics, citing jobs that were restructured or subcontracted without prior notice that affected more than 100 union workers in the departments of Health and Human Services, Transportation, Corrections and Maine Revenue Services. It also cites particular statutes that allegedly have been violated.
Julie Armstrong, lead counsel for the state, categorically rejects any notion that the MLRB's Aug. 6 ruling is a vindication of the MSEA's position, and is unwilling to grant even a "sliver" of a legal opening for the MSEA to eventually overturn what she regards as the board's affirmation of the state's right, even under an expired labor contract, to restructure or subcontract work done by state union employees.
"It's really an issue of fundamental fairness," she says. "The law has always been that when a collective bargaining agreement has expired, the employer is obligated to maintain the status quo."
Armstrong says MSEA essentially wants the state to maintain "all benefits" to unionized employees and the MSEA while at the same time give up its right to control costs by making state government more efficient, whether by restructuring jobs or by subcontracting work it believes could be done at less cost or with greater efficiency by others.
"They would have the employer over a barrel," she says, if the waiver-of-bargaining provision only applied to situations the union deemed as favorable to its members, and not to situations it deemed as unfavorable.
Using the merger of the departments of Agriculture and Conservation as an example, Armstrong says that's a change enacted by the Legislature and the governor's office is duty bound to implement it, with job restructuring being a likely consequence. Requiring bargaining in that situation, she says, potentially would give the MSEA veto power over any job restructuring.
In fact, she says, if the labor board were to accept the MSEA position "it would prevent the state from continuing to take even basic management actions without negotiating over decisions and then only taking action of the union agreed. This clearly is not the balance of power envisioned by the Legislature."
Armstrong categorically rejects the amended complaint's allegations, saying: "The state, in all of the instances that have been alleged, acted in accordance with the language of the collective-bargaining agreement. We have not deviated from our past practices at all."
Chris Quint, director of the 14,000-member MSEA, says what's at stake, ultimately, is the longstanding history of a working relationship between the union and the state as an employer that is built on mutual respect and working constructively together. In previous administrations, he says, and even during the early months of the LePage administration, MSEA was invited to early discussions involving proposed job restructurings or subcontracting and made constructive suggestions that proved useful, even when union jobs eventually were lost.
"It's state workers who actually do these jobs on a day-to-day basis," he says, suggesting that inviting their input when jobs might have to be restructured is not just a matter of civility, it's also good common sense.
"Let's communicate on these matters," he says. "That's the way it's been under many, many governors."
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