See full Decision and Order Issued on Oct. 12, 2005.

                                      Case No. 05-07
                                      Issued:  February 3, 2005

MSAD #46 Education Association/   )
MEA/NEA,                          )
                                  )       DECISION AND ORDER
                    Complainant,  )     ON COMPLAINANT'S MOTION
                                  )     FOR REVIEW OF EXECUTIVE
     v.                           )  DIRECTOR'S SUMMARY DISMISSAL
                                  )          OF COMPLAINT
MSAD #46 Board of Directors,      )     
                    Respondent.   )

     The MSAD #46 Education Association filed its complaint on
November 24, 2004, alleging the employer refused to bargain in
violation of 964(1)(E) and (A).  The MSAD #46 Board of Directors
filed its response on December 13, 2004.  On December 16, 2004,
the Executive Director dismissed the complaint after concluding
that the current collective bargaining agreement between the
parties included a provision in which the Association had waived
its statutory right to bargain during the term of the agreement. 
The Association appealed the dismissal of its complaint to the
Board in accordance with 26 M.R.S.A. 968(5)(B).

     At issue is the interplay between two provisions contained
in the parties' current collective bargaining agreement.  The
first is a provision referred to as a zipper clause and the
second is an addendum in which the parties agreed to reopen
negotiations on certain specified topics.  These provisions are:


     B.  This Agreement incorporates the entire under-
     standing of the parties on all matters which were or
     could have been the subject of negotiations.  During
     the term of the Agreement, neither party shall be
     required to negotiate with respect to any such matter
     whether or not covered by this Agreement and whether or 


     not within the knowledge or contemplation of either or
     both of the parties at the time they negotiated or
     executed this Agreement.


     MSAD #46 Board of Directors and the MSAD #46 Education
     Association will reopen negotiations of the MSAD #46
     2002-2005 Comprehensive Teachers' Contract in November
     or December of 2002 for the purposes of negotiating
     salaries, health insurance, zipper clause and hard to
     fill teaching positions for the second and third years. 
     If agreement is not reached, the normal procedures of
     impasse by state statute is open to either side.

     The Executive Director concluded that the zipper clause
constituted a clear and unmistakable waiver of the Association's
statutory right to demand bargaining during the term of the
contract and that the addendum merely created a contractual
obligation.  We disagree for the reason stated below.
     It is well established that a party can waive its statutory
right to demand bargaining during the term of an agreement as
long as it does so "by clear and unmistakable language."  See
State of Maine v. Maine State Employees Association, 499 A.2d 1228, 
1230 (Me. 1985); Metropolitan Edison v. NLRB, 460 U.S. 693,
708 (1983); Maine Teachers Assoc./NEA v. State Board of
Education, No. 86-14, at 11-12 (Nov. 18, 1986).  If it were the
only provision on the subject, the zipper clause in the present
case would indeed constitute a clear and unmistakable waiver. 
The addendum, however, by its very terms severely undercuts and
casts doubt on any contention that the waiver is "clear and
unmistakable."  With respect to the subjects listed in the
addendum, there is no waiver because the language of the addendum
precludes the possibility of concluding that the Association has
waived its statutory right "by clear and unmistakable language."
     We grant the Association's appeal and instruct the Executive 


Director to reinstate the complaint and schedule in accordance
with the Board's Rules and Procedures.

Dated at Augusta, Maine, this 3rd day of February, 2005

                                MAINE LABOR RELATIONS BOARD

                                Peter T. Dawson
                                Neutral Chair

                                Karl Dornish, Jr.
                                Employer Representative

                                Robert L. Piccone
                                Alternate Employee Representative