Mountain Valley Education Ass'n v. Maine School Administrative District No. 43

655 A.2d 348, 1995 Me. LEXIS 49, 148 L.R.R.M. (BNA) 2862

• Court: Supreme Judicial Court of Maine
• Decided: March 2, 1995
• Status: Published

Opinions

WATHEN, Chief Justice.

Mountain Valley Education Association (“the Association”) appeals from a judgment entered in the Superior Court (Kennebec County, Alexander, J.) affirming a decision of the Maine Labor Relations Board (“the Board”) upholding Maine School Administrative District No. 43’s (“SAD 43”) unilateral implementation of its last best offer on wages and insurance. The principal issues on appeal are whether the Municipal Public Employees Labor Relations Law (“the Act”), 26 M.R.S.A. §§ 961-974 (1988 & Supp.1994), permits unilateral implementation of a public employer’s last best offer following an impasse in bargaining and whether the Board’s finding of impasse is clearly erroneous. We affirm the judgment of the Superior Court.

The facts as found by the Board may be briefly summarized as follows: The Association and SAD 43 began negotiations in June 1990 for an initial contract for the benefit of a combined unit of teacher aides and assistants.¹ The negotiations were long and arduous, with the parties participating in three mediation sessions and in factfinding. Thereafter, the parties submitted several issues including wages, health insurance, and duration of the contract to arbitration. Following a hearing, the arbitration panel issued a report on July 9, 1992 making non-binding recommendations on wages, retirement payment, and health insurance, but imposing a two-year duration of contract for the school years 1991-92 and 1992-98.

In September of 1992, SAD 43 sent a proposal on wages and insurance to the Association. The terms were an improvement over those previously proposed by SAD 43 but not in complete accord with the arbitrators’ recommendations. The parties met, but the Association rejected the offer and made counterproposals. In November of 1992, SAD 43 notified the Association of its last best offer on wages and insurance. The Association immediately filed for mediation. SAD 43 thereafter implemented its wage and insurance proposals.²

The Association filed a prohibited practice complaint with the Board alleging that SAD 43 violated the Act by unilaterally implementing its proposal on wages and insurance and by failing to observe the arbitrators’ binding determination on the duration of the agreement. The Board ruled that SAD 43 committed no violation of the Act by unilaterally imposing its wage and insurance proposals. It held that SAD 43 did violate the Act by refusing to implement the binding arbitration award on the duration of the agreement. The Association, pursuant to 26 M.R.S.A. § 968(5)(F), filed a petition for review of final agency action. The Superior Court affirmed the Board’s order. The Association now appeals.

I. Unilateral Implementation of Last Best Offer Follomng Impasse

We review the Board’s decision directly, State v. Maine State Employees Ass’n, 538 A.2d 755, 757 (Me.1988), for error of law, abuse of discretion, or clear error. See City of Bangor v. American Fed’n of State, City, & Mun. Employees, 449 A.2d 1129, 1134, 1136-37 (Me.1982); 26 M.R.S.A § 968(5)(F). As the agency charged with enforcement, we accord the Board considerable deference in construing the Act. Lundrigan v. Maine Labor Relations Bd., 482 A.2d 834, 836 (Me.1984). The Board’s findings on questions of fact are final unless clearly erroneous. 26 M.R.S.A. § 968(5)(F).

Maine law as well as federal law imposes the obligation to bargain in good faith as part of the statutory definition of collective bargaining. 26 M.R.S.A § 965(1)(C); 29 U.S.C.A § 158(d) (1973 & Supp.1994). The National Labor Relations Act (NLRA) requires employers and employees’ representatives in the private sector to bargain in good faith with respect to the mandatory subjects of bargaining; namely, “wages, hours, and other terms and conditions of employment.” 29 U.S.C.A § 158(d). In order to support the bargaining process and prevent it from being circumvented or disparaged, federal law has long been interpreted to prevent either party from unilaterally changing wages, hours or working conditions. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991); NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111-12, 8 L.Ed.2d 230 (1962); NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153, 1157, 1161-62 (D.C.Cir.1992). Thus, while bargaining, and before impasse, a private employer is prevented from “going over the head” of the bargaining agent by unilaterally increasing or decreasing wages. The parties are required to maintain the status quo while bargaining, and this principle applies both to negotiations before an initial contract and to post-expiration negotiations for a new contract. See Litton Fin., 501 U.S. at 198, 111 S.Ct. at 2221. Here, in Maine, the Board adopted the rule against unilateral changes with respect to public sector bargaining, see, e.g., Easton Teachers Ass’n v. Easton Sch. Comm., No. 79-14, at 3-5 (Me.L.R.B. March 13, 1979), and we have upheld the Board’s use of this rule, see Lane v. Board of Dir. of Me. Sch. Admin. Dish No. 8, 447 A.2d 806, 809-10 (Me.1982); State v. Maine Labor Relations Bd., 413 A.2d 510, 515 (Me.1980).

In 1978, the Board adopted from federal labor law the impasse exception to the rule against unilateral change. Maine State Employees Ass’n v. State, No. 78-23, at 4 (Me.L.R.B. July 15, 1978), aff'd sub nom. State v. Maine Labor Relations Bd., 413 A.2d 510 (Me.1980). This exception allows a party to unilaterally implement its last best offer when negotiations have reached a bona fide impasse.³ See Litton, 501 U.S. at 198, 111 S.Ct. at 2221; McClatchy Newspapers, 964 F.2d at 1157, 1164-65; Easton, No. 79-14, at 4-5. Once the parties have in good faith exhausted the prospects of reaching an agreement, unilateral change that is reasonably comprehended within the pre-impasse proposals no longer violates the Act. After impasse, however, the duty to bargain is not extinguished. Rather it is temporarily suspended until changed circumstances indicate that the parties are no longer inalterably deadlocked. See Auburn Firefighters Ass’n Local 797 v. City of Auburn, No. 89-01, at 23 (Me.L.R.B. March 31, 1989); see also McClatchy Newspapers, 964 F.2d at 1164-65.

Notwithstanding the similarities with federal law, Maine law differs in at least one respect — impasse cannot occur until specified forms of intervention have been exhausted. Public employees in Maine, unlike employees in the private sector, do not have the right to strike or engage in work stoppages, 26 M.R.S.A. § 964(2)(C). Having eliminated the most common form of impasse resolution procedure, Maine law adds to the definition of good-faith bargaining the obligation to participate in mediation, factfind-ing, and arbitration procedures. 26 M.R.S.A. § 965(1)(E). These “peaceful” third-party intervention procedures are intended as substitutes for strikes and work stoppages and are designed to provide escalating pressure on both parties to produce a voluntary settlement. See Raymond G. McGuire & Bryan M. Dench, Public Employee Bargaining Under the Maine Municipal Public Employees Labor Relations Law: The First Five Years, 27 Me.L.Rev. 107-09, 115 (1975). The final step, arbitration, is binding on all issues except the important subjects of wages, insurance, and pensions, for which it is advisory only. 26 M.R.S.A. § 965(4). This diluted form of arbitration brings pressure to bear on the employer, while preserving for public officials the prerogatives of public management, fiscal control, and lawmaking. See McGuire & Dench, 27 Me.L.Rev. at 115. In recognition of Maine’s unique scheme of statutory procedures,⁴ the Board ruled in 1989 that, absent extraordinary circumstances, it would thereafter find an employer’s implementation of a last best offer prior to completion of requested impasse resolution procedures to constitute a per se violation of the obligation to bargain in good faith. Auburn Firefighters, No. 89-01, at 21-24. The issue in the present case is whether, following completion of these procedures, and after impasse, the Act permits an employer to unilaterally impose its last best offer. We find no error in the Board’s construction of the statutory duty to bargain in good faith.

The Association asked the Board to abandon the impasse exception and argues before us that the Act provides an alternative that is sufficient to resolve any impasse that remains after non-binding arbitration. The Association argues that the statute expressly provides that the parties may jointly agree to binding arbitration even on the subjects of salaries, pensions, and insurance. 26 M.R.S.A. § 965(4). See Maine Teachers Ass’n v. Sanford Sch. Comm., No. 81-55, at 3-5 (Me.L.R.B. Oct. 7, 1981). If the parties refuse this option, the Association contends that they are obliged to continue to negotiate until they reach agreement. In the interim they are required to preserve the status quo and are prohibited from making any unilateral change. Even if we recognize that the parties may jointly agree to binding arbitration pursuant to section 965(4), and thereby achieve finality, that same section explicitly prohibits compelled binding arbitration for wages, salaries, and insurance. The Legislature imposed the duty to bargain on public employers, but it also granted them the power not to agree. We agree with the Board that in this regard, the balance was premised on a legislative determination that public employers ultimately retain a significant measure of control over their budgets. Typically, public employment budgets require funding by a legislative body. Given the involvement of the public fisc, we agree with the Board that the Legislature neither expressly nor implicitly established the voluntary abdication of the employer’s responsibility to control public expenditures as the ultimate solution to an impasse.

The Association next argues that a unilateral change, even if made after exhaustion of the statutory procedures, frustrates the Act’s policy that “neither side shall be compelled to agree to a proposal or be required to make a concession.” 26 M.R.S.A. § 965(1)(C). Along the same lines, the Association contends that if the Board cannot impose wage terms on parties under its remedial authority, Caribou Sch. Dep’t v. Caribou Teachers Ass’n, 402 A.2d 1279 (Me.1979), neither can SAD 43 impose concessions on its employees without their agreement. Both arguments fail for the same reason. In Caribou, we found that the Board, by ordering retroactive payment of wage and benefit increases, was making a contract for the parties, something that it did not have the authority to do. Id. at 1285-87. We supported our decision with federal case law holding that the National Labor Relations Board’s remedial powers are limited by the effect of the provision that the obligation to bargain in good faith does not compel either party to agree to a proposal or require the making of a concession. Id. at 1285. The Association confuses the making of a contract with the unilateral implementation of a last best offer during a period in which no contract exists. As we explained in Lane, the prohibition against unilateral change after expiration of a collective bargaining agreement is not based on contract law, but rather “on the principle that unilateral alterations of the collective bargaining agreement are in contravention of the statutory duty to bargain in good faith.” 447 A.2d at 810. The Association has neither been compelled to agree to SAD 43’s proposal, nor, by receiving less of an increase than it sought, has it been required to make a concession within the meaning of section 965(1)(C). Rather, the effect of the unilateral increase after impasse is to create a new status quo from which the parties must bargain once the duty to bargain is no longer dormant.

The Board committed no error in ruling that SAD 43’s unilateral implementation of its last best offer following impasse is not a prohibited circumvention or disparagement of the employer’s duty to bargain in good faith. Although the Act differs from the National Labor Relations Act in that it prohibits strikes and requires mandatory dispute resolution procedures, the federal impasse doctrine is not thereby rendered inapplicable. The definition of the outer limits of the duty to bargain in good faith requires neither the voluntary abandonment of control of the public fisc, nor bargaining in perpetuity. The Board properly resorted to the impasse doctrine in the present case. Although labor relations in the public sector differ from those in the private sector, there is nothing to suggest that the Legislature intended to reject the impasse doctrine as a quid pro quo for the denial of the right to strike. The Board’s long-standing reliance on the rule against unilateral change, and the impasse exception to that rule, constitutes a rational adaptation of private sector labor law and serves the goals set forth in the Act.

II. Board’s Finding of Impasse

The Association argues that the Board’s finding of impasse is not supported by substantial evidence on the record. The determination of impasse is predominantly a question of fact and therefore will be upheld unless clearly erroneous and unsupported by substantial evidence on the record. See 26 M.R.S.A. § 968(5)(F); Saunders House v. NLRB, 719 F.2d 683, 687-88 (3d Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 554 (1984).

Contrary to the Association’s assertions, the Board was not required to make express findings that further negotiations would be fruitless. The parties here had completed mediation, factfinding, and arbitration and there was no question as to good faith during that period. In finding that the parties reached impasse, the Board concluded that SAD 43 participated in further negotiation for a reasonable period of time after receiving the arbitration report. It rejected the Association’s argument that SAD 43 violated its duty to bargain in good faith after arbitration by failing to respond to requests to bargain and by implementing its last best offer after it agreed to mediation. We find the Board’s findings on impasse to be supported by substantial evidence on the record. Despite the fact that Maine law requires exhaustion of impasse resolution procedures prior to impasse, we agree with the federal courts that “[w]hether a bargaining impasse exists is a matter of judgment.” Taft Broadcasting Co., 163 N.L.R.B. 475, 478 (1967), petition for review denied sub nom. American Fed’n of Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C.Cir.1968). “[I]n the complex realm of industrial relations ‘few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a board which deals constantly with such problems.’ ” Saunders House, 719 F.2d at 688 (quoting Dallas General Drivers, W. & H., Local No. 745 v. NLRB, 355 F.2d 842, 844-45 (D.C.Cir.1966)).

III. Violation of Duty to Bargain

In its decision, the Board upheld SAD 43’s implementation of its last best offer for wages and insurance, but also ordered SAD 43 to implement the binding interest arbitration award of a two-year duration of the contract.⁵ The Association contends that the Board should have first remedied SAD 43’s refusal to bargain on this particular item and sent the parties back to the bargaining table before ruling on SAD 43’s unilateral implementation of its last best offer. The Board has broad discretion to fashion remedies for violations of the Act. See, e.g., Sanford Highway Unit of Local 481 v. Town of Sanford, 411 A.2d 1010, 1015-17 (Me.1980). We find no abuse of discretion or error.

The entry is:

Judgment affirmed.

ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ., concurring.

1 . The combined bargaining unit came about after the Rumford School Department joined the Mexico schools in SAD 43. At the time of the merger, the combined group of aides and the combined group of assistants each decided which of the pre-existing wage and benefit packages would apply pending negotiation of a new collective bargaining agreement. The aides selected the lower pay and paid health insurance that had prevailed in Mexico, and the assistants chose the higher pay without health insurance that had prevailed in Rumford.

2 . The Board's summary of SAD 43’s last best offer, in comparison with the arbitrator's recom- . mendation, is as follows:

For aides, [SAD 43] proposed a step increase plan and two across-the-board increases; the first was higher than the arbitrators had recommended, but for a shorter time period (6 months of retroactivity rather than a year). For the second year of the contract, it offered the across-the-board increase that the arbitrators had recommended. For assistants, who had not been on a step increase plan, the employer offered a step increase plan retroac-five for six months, rather than the one year that the arbitrators had recommended. The employer did not accept the recommendation for an across-the-board increase for the second year, but offered a 2 percent raise for any assistant not eligible for a step increase.

While it did not adopt the arbitrators’ recommendation on health insurance, it did make some changes in its previous offer. It increased the caps (premium amounts to be paid by the employer) for single and two-person coverage (but reduced the cap for family coverage); and it offered to contribute to a higher-coverage plan than it had offered previously.

3 . Other exceptions to the rule prohibiting unilateral changes are recognized, but these are not relevant to the present discussion. See Lane, 447 A.2d 810 n. 2; Easton, No. 79-14, at 5.

4 . The Act’s requirement for all three techniques of impasse resolution, although not unprecedented, was not the usual path in public sector labor law when it was enacted. See McGuire & Dench, 27 Me.L.Rev. at 108.

5 . SAD 43 did not appeal the Board's decision regarding the duration of the contact provision.