Affirmed, AP-09-001, (Oct. 7, 2009, Androscoggin Superior Court, Delahanty, J.)
STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 09-05
Issued: January 15, 2009

MAINE STATE EMPLOYEES ASSOCIATION, SEIU Local 1989,
Complainant

v.

LEWISTON SCHOOL DEPARTMENT,
Respondent.

 

DECISION AND ORDER

 

	  This prohibited practice complaint, filed by the Maine State
Employees Association, SEIU Local 1989 ("MSEA" or the "Union") on
September 5, 2008, alleges that the Lewiston School Department
(the "Employer") violated the Municipal Public Employees Labor
Relations Law by unilaterally changing a term of employment after
the expiration of the parties' collective bargaining agreement. 
Specifically, the complaint alleges that the Employer failed to
bargain in good faith with the Union in violation of 26 M.R.S.A.
§964(1)(E) when it unilaterally changed the percentage of the
health insurance paid by the Employer during bargaining.  The
complaint further alleges that the Employer's action interfered
with, restrained or coerced employees in the exercise of their
rights protected by 26 M.R.S.A. §963 in violation of §964(1)(A).  
     At the suggestion of the Board's Executive Director, the
parties agreed to have the complaint decided on the basis of a
stipulated record and written briefs.  The School Department was
represented by Daniel C. Stockford, Esq., and MSEA was
represented by Alison Mann, Esq.  The stipulations were filed on
October 27, 2008, and the parties' briefs and reply briefs were
all filed by November 21, 2008.  The Board, made up of Peter T.
Dawson, Chair; Wayne Whitney, Employee Representative; and Karl
[end of page 1]

Dornish, Employer Representative, met on December 15, 2008 to
deliberate on this matter.         

                           JURISDICTION

     The Maine State Employees Association-SEIU Local 1989 is the
bargaining agent for various employees in a bargaining unit at
the Lewiston School Department.  MSEA is the bargaining agent
within the meaning of 26 M.R.S.A. §962(2), and the School Depart-

ment is the public employer within the meaning of 26 M.R.S.A. §
962(7).  The jurisdiction of the Board to hear this case and to
render a decision and order lies in 26 M.R.S.A. §968(5)(A)-(C). 
                                 
                         STIPULATED FACTS

1.  The Maine State Employees Association, SEIU Local 1989 or
"MSEA" is the certified bargaining agent for one unit of
employees of the Lewiston School Department, 26 M.R.S.A. §962(2).

2.  The Lewiston School Department ("the Department") is a public
employer as defined in 26 M.R.S.A. § 962(7).

3.  The Lewiston School Department and MSEA were parties to a
collective bargaining agreement that was in effect from July 1,
2005, until June 30, 2008.  A true copy of the parties' 2005-2008
Collective Bargaining Agreement ("Agreement") is submitted as
Joint Exhibit 1.

4.  The Agreement contained the following article and section:
                            Article 12
          Section 2.  Health Insurance

          The Employer shall provide health insurance to its
          employees and their families.  Employees shall
          make the following contributions to the Choice

[end of page 2]

          Plus Plan premium for the applicable level of
          coverage, and the Employer shall pay the balance
          of the Choice Plus Plan premium for the applicable
          level of coverage.  In the event the premiums of
          the selected health and dental plan exceed the
          Employer contributions, the difference may be
          deducted from payroll on a pre-tax basis in
          accordance with the rules and regulations of the
          IRS Section #125.

          2005-2006      Employee Annually Contributes:
     
                         Single           $  780.00
                         Adult w/child     1,040.00
                         Two adults        1,300.00
                         Family            1,820.00

          2006-2007      For the 2006-2007 school year, the
                         Committee's contribution will be
                         increased by a percentage equal to the
                         annual MEA Anthem BC/BS Choice Plus Plan
                         premium rate increase, with a maximum
                         cap not to exceed 13% more than the
                         contribution for the 2005-2006 school
                         year.  Any increase above the
                         Committee's capped contribution will 
                         be paid by the employee.

          2007-2008      For the 2007-2008 school year, the
                         Committee's contribution will be
                         increased by a percentage equal to the
                         annual MEA Anthem BC/BS Choice Plus Plan
                         premium rate increase, with a maximum
                         cap not to exceed 13% more than the
                         contribution for the 2006-2007 school
                         year.  Any increase above the 
                         Committee's capped contribution will be
                         paid by the employee.

          The Employer reserves the right to convert this
          coverage to any carrier offering comparable
          coverage.  The MEA Choice Plus Plan shall be the
          coverage provided for the period covered by this
          Collective Bargaining Agreement.  If the employee
          chooses to enroll in the MEA Standard Plan, the
          employees will be responsible to pay the
          difference between the MEA Standard and the MEA
          Choice Plus Plan premiums.  Any replacement health 

[end of page 3]

          insurance program must include Prescription Card
          component.

5.  The employees contributed the amounts listed in Article 12,
Section 2 for the 2005-2006 school year, and the Department
contributed the remainder of the premium owed.  The annual dollar
contributions of employees and the Department for each level of
coverage, as well as the percent of total premium, were as
follows in 2005-2006:

       Employee Contribution         Department Contribution

Single         $   780.00 (14.6%)       $  4,563.84 (85.4%)
Adult w/ Child $ 1,040.00 (11%)         $  8,417.44 (89%)
Two Adults     $ 1,300.00 (10.8%)       $ 10,744.04 (89.2)
Family         $ 1,820.00 (12.4%)       $ 12,839.20 (87.6%)

6.  On July 1, 2006, there was a 5% increase in the Anthem Blue
Cross Blue Shield Choice Plus Plan premium.

7.  During the 2006-2007 school year, the Department and the
employees each paid 5% more than they had in the prior year,
which covered the 5% overall premium increase.  The annual dollar
contributions of employees and the Department, for each level of
coverage, as well as the percent of total premium, were as
follows in 2006-2007:

       Employee Contribution         Department Contribution

Single         $   819.00 (14.6%)      $  4,792.08 (85.4%)
Adult w/ Child $ 1,092.00 (11%)        $  8,838.36 (89%)
Two Adults     $ 1,365.00 (10.8%)      $ 11,281.20 (89.2%)
Family         $ 1,911.00 (12.4%)      $ 13,481.16 (87.6%)

8.  On July 1, 2007, there was an 8.66% increase in the Anthem
Blue Cross Blue Shield Choice Plus Plan premium.

[end of page 4]

9.  During the 2007-2008 school year, the Department and the
employees each paid 8.66% more than they had in the prior year,
which covered the 8.66% overall premium increase.  The annual
dollar contributions of employees and the Department for each
level of coverage, as well as the percent of total premium, were
as follows in 2007-2008:
                    
     Employee Contribution         Department Contribution

Single         $   889.89 (14.6%)       $  5,207.07 (85.4%)
Adult w/ Child $ 1,186.52 (11%)         $  9,603.76 (89%)
Two Adults     $ 1,483.17 (10.8%)       $ 12,258.15 (89.2%)
Family         $ 2,076.49 (12.4%)       $ 14,648.63 (87.6%)


10. The Department and MSEA began negotiating over a successor
agreement in mid-June, 2008, and the 2005-2008 collective
bargaining agreement expired on July 30, 2008, before agreement
was reached on a successor agreement.

11. On May 2, 2008, Lewiston School Department Benefits
Specialist Jackie Little sent an e-mail message to Union member
Jacqueline Smith setting forth the respective contributions to
health insurance premiums for employees as of July 1, 2008, if
the contract was not settled by July 1, 2008.  A true copy of
that May 2, 2008, e-mail is submitted as Joint Ex. 2.

12. On July 1, 2008, the Anthem Blue Cross Blue Shield Choice
Plus Plan premium increased by 4%.

13. After June 30, 2008, the Department continued to contribute
the same dollar amount to health insurance premiums that the
Department contributed during the 2007-2008 school year.  The
annualized dollar contributions of employees and the Department
for each level of coverage, as well as the percent of total 

[end of page 5]

premium, have been as follows during this interim period:

     Employee Contribution         Department Contribution

Single         $ 1,133.73 (17.9%)       $  5,207.07 (82.1%)
Adult w/ Child $ 1,618.16 (14.4%)       $  9,603.76 (85.6%)
Two Adults     $ 2,032.77 (14.2%)       $ 12,258.15 (85.8%)
Family         $ 2,745.49 (15.8%)       $ 14,648.63 (84.2%)

14. The Department did not negotiate with the Union regarding the
rates of health insurance that would be in effect during the
interim period between expiration of the 2005-2008 Agreement on
July 30, 2008, and implementation of a successor agreement.

15. As of October 23, 2008, the Department and the Union
continued to be involved in negotiations for a successor
agreement to the 2005-2008 Agreement, including negotiations over
health insurance benefits that will be effective during the term
of the successor agreement.
                                                  
                                 
                           DISCUSSION
                                
     The statutory duty to bargain requires the employer and the
bargaining agent "to confer and negotiate in good faith with
respect to wages, hours, working conditions and contract
grievance arbitration."  26 M.R.S.A. §965(1)(C).  It is a well-
established principle of labor law that the duty to bargain
includes a prohibition against making unilateral changes in a
mandatory subject of bargaining, as a unilateral change is
essentially a refusal to bargain.  See, e.g., Teamsters v. Town
of Jay, No. 80-02 at 3 (Dec. 26, 1980) (citing NLRB v. Katz, 369
U.S. 736, 743 (1962)), and Lane v. Board of Directors of MSAD No.
8, 447 A.2d 806, 809-10 (Me. 1982).  The prohibition against
making unilateral changes means that the parties must maintain 

[end of page 6]

the status quo following the expiration of a contract.  Univ. of
Maine System v. COLT, 659 A.2d 842, 843 (May, 1995) citing Lane
v. MSAD No. 8, 447 A.2d at 810.  In cases involving allegations
of unilateral changes after the expiration of an agreement, the
terms of the expired agreement are evidence of the status quo
that must be maintained. See, e.g., MSEA v. School Committee of
City of Lewiston, No. 90-12 (Aug. 21, 1990) at 16.
     The issue presented in this case is whether increasing the
employees' payroll deduction for health insurance premiums after
the expiration of the collective bargaining agreement constituted
a unilateral change by the Employer in violation of 26 M.R.S.A
§964(1)(E).  There is no dispute that upon the expiration of the
2005-2008 collective bargaining agreement, the Lewiston School
Department kept its own contribution to the premium at the same
dollar level and increased the amount deducted from the paychecks
of each unit employee to cover the increase in the health
insurance premiums imposed by the carrier.  The legal question
before us is whether this change constitutes a change in the
status quo.  If so, it is a unilateral change in a mandatory
subject of bargaining that constitutes a refusal to bargain in
violation of §964(1)(E) and (1)(A).[fn]1               
     The essence of this case is how to define the status quo
that must be maintained for health insurance premium costs when
the collective bargaining agreement has expired and the parties
are negotiating a successor agreement.  The employer claims the
status quo should be the dollar amount paid by the employer for
health insurance premiums at the expiration of the agreement. The
union argues that the status quo should be the percentage of the
premium being paid by the employer and the employees at the 

     1  None of the exceptions to the rule against unilateral changes
are at play here.  See, e.g., Auburn Firefighters Assoc. IAFF v.
Valente and City of Auburn, No. 87-19, at 8-9 (Sept. 11, 1987).

[end of page 7]

expiration of the agreement.[fn]2
      The Employer argues that this matter is controlled by the
Maine Law Court's decision in COLT, which overturned the Board's
decision requiring the University of Maine System to continue to
grant step increases after the expiration of the collective
bargaining agreement.  COLT, 659 A.2d at 846 (May, 1995).  The
Employer contends that, analytically, the step increases at issue
in COLT are the same as health insurance premiums because they
are both an aspect of wages.  The result of the Employer's
approach is that, just as COLT holds that the employer must
freeze wages after the expiration of the agreement, in this
instance the employer must freeze its own contribution to the
health insurance premium at the dollar amount existing at
expiration of the agreement.
     We disagree with the proposition that COLT controls this
case.  In COLT, the issue was whether the status quo to be
maintained included payment of annual wage increases after the
expiration of the contract.  The Law Court concluded that the
Board's decision requiring the employer to continue granting step
increases "dramatically alters the status and bargaining
positions of the parties.  It changes, rather than maintains, the
status quo."  COLT, 659 A.2d at 846.  The Law Court observed, 
     
        To say that the status quo must be maintained during
     negotiations is one thing; to say that the status quo
     includes a change and means automatic increases in
     salary is another.

     2  There are actually three options for defining the status quo
on health insurance:  the employer continuing to pay the same dollar
amount, with the employee absorbing the full impact of the premium
increase; the employee continuing to pay the same dollar amount, with
the employer absorbing the full impact of the premium increase; the
employer and the employee continuing to pay the same proportion of the
total premium cost as established in the collective bargaining
agreement.  The second option was not raised by either party.

[end of page 8]

COLT, 659 A.2d at 844, quoting MSAD #43 Teachers' Ass'n v. MSAD
#43 Board of Dir., 432 A.2d 395, 397 n.3 (Me. 1981).
     In the present case, the Employer's interpretation of the
status quo to be maintained presents a very significant change to
the wages, hours and working conditions of the employees.  There
is no question that the status quo has changed significantly for
employees in this case:  The employee contribution toward the
health insurance premium increased by 27% for single coverage,
and 26%, 37% and 32% for adult and child, two adult, and family
coverage, respectively.  In dollar terms, this is a significant
loss of take-home pay on an annual basis: $244, $432, $550, $669
for the four levels of coverage.  Thus, where COLT represents a
situation in which the Board's order was determined by the Law
Court to be a significant change in the status quo, here it is
the School Committee's stance on health insurance contributions
that constitutes a significant change in the status quo. 
     We also reject the Employer's argument that the terms of the
contract specifically limit the Employer contribution to a fixed
amount that cannot be increased.  The terms of the expired
collective bargaining agreement establish how the health
insurance premium costs are shared between the employee and the
Employer.  Other Board cases addressing unilateral changes with
respect to health insurance coverage have focused on the terms of
the expired agreement to determine whether the status quo is a
fixed dollar amount or a percentage of the premium.  For example,
in Auburn School Support Personnel, the Board held that because
the agreement "did not establish a procedure for determining
insurance premium payments," such as saying that the employer
would pay 100% of premiums, but simply stated a fixed dollar
amount that the employer would pay, that dollar amount was the
status quo. Auburn School Support Personnel, AFT v. Auburn School
Committee, No. 91-12 (July 11, 1991) at 11-12.  Similarly, in 

[end of page 9]

Teamsters v. City of Augusta, the agreement specified the dollar
amount for the City's contribution to the health insurance plan
for each of three years, followed by a statement that "the
remainder, if any, will be paid by each employee using weekly
payroll deductions."  No. 93-28 (Jan. 13, 1994).  The Teamsters
argued that because that dollar amount was 100% of the premium
cost, paying 100% was the status quo that must be maintained. 
The Board concluded that there was "no way to consider the fixed
dollar amounts in the contract as anything but a cap on the
City's responsibility for insurance premiums", particularly in
light of the "unequivocal" remainder language.  Teamsters v. City
of Augusta, No. 93-28 at p.25-26.[fn]3       
     The Employer's interpretation of the collective bargaining
agreement hinges on the sentence, "Any increase above the
Committee's capped contribution will be paid by the employee"
contained in the following section of the article dealing with
insurance premiums:
     For the 2007-2008[fn]4 school year, the Committee's
     contribution will be increased by a percentage equal to 

     3  See also, the following discussion from Auburn School Support
Personnel, No. 91-12 at 12:
       In comparing earlier cases with the one before us, it is
     perhaps best to view the distinction as one of continuation
     of a fixed contractual term or condition versus continuation
     of a contractual procedure to determine that term or
     condition.  The distinction was made clear in a more recent
     case, MSEA v. School Committee of the City of Lewiston, No.
     90-12 (Me.L.R.B. Aug. 21, 1990).  There, in response to
     employee reclassifications that the employer had made after
     contract expiration, the Board found that the procedure in
     the expired contract, in which the employer had agreed to
     consult the union prior to reclassifying employees, had to
     be maintained during negotiations for a new contract. 
     Employee classifications themselves were not fixed, as long
     as the reclassification procedure in the expired contract
     was followed.

     4  There is identical language directly preceding this one that
covers the 2006-2007 school year.

[end of page 10]

     the annual MEA Anthem BC/BS Choice Plus Plan premium
     rate increase, with a maximum cap not to exceed 13%
     more than the contribution for the 2006-2007 school
     year.  Any increase above the Committee's capped
     contribution will be paid by the employee.

The Employer argues that the sentence demonstrates that the
parties agreed "to limit the School Department's contribution to
a defined amount and to require employees to pay any increases in
premiums over that defined amount." (Employer Reply brief at 2). 
We do not think it is appropriate to pull this sentence out of
the context of the agreement.  In both instances in which the
sentence occurs, it immediately follows the sentence defining the
Employer's contribution and setting a cap on the amount of the
increase the employer would pay.  Thus, the sentence merely
provides that if the premium increases more than 13% (the maximum
increase the Employer agreed to share with the employees), then
any increase above that capped contribution would be paid by the
employee.  It operates as a limit on the Employer's commitment to
share in the costs of premium increases, not as a freeze on the
Employer contribution.  Thus, unlike the remainder language in
the Augusta case, the plain language of the agreement does not
support the Employer's argument that its contribution level
should be frozen.
     We agree with the Union's argument that the status quo that
must be maintained is the proportion of the premium paid by the
employee and the Employer, respectively.  The Union points out
that the contract specified the dollar amount of the employees'
share during the first year, with the Employer assuming the
remainder of the cost, and the employee and Employer sharing the
burden of any subsequent increase in premium rates, subject to a
cap for the Employer.  This share, though not expressly stated in
the agreement, worked out to be 10.8% to 14.6% for the employee
(depending on the level of coverage chosen), with the Employer's 

[end of page 11]

share of the premium ranging from 89.2% to 85.4% (see stipulation
#9).  The Union argues that the status quo to be maintained is
sharing the premium payments at the same proportions the Employer
and the employees shared over the life of the expired agreement. 
We agree that the terms of the collective bargaining agreement
establish a practice of the Employer and the employees sharing
the costs of the health insurance premium.  For each of the three
years of the agreement, the Employer has paid from 85.4% of the
premium for a single employee up to 89.2% of the premium for two
adults.  The procedure established in the agreement provided that
this proportional share would continue, as long as the premium
did not increase over 13%.  This procedure is the status quo that
must be maintained while a successor agreement is being
negotiated.  Thus, the Employer's unilateral change in the
percentage of the health insurance premium the Employer paid
following the expiration of the collective bargaining agreement
was a refusal to bargain in violation of 26 MRSA 964(1)(E). 
     We also conclude that the Employer's unilateral change in
the terms and conditions of employment constitutes interference,
restraint and coercion, independent of a violation of the duty to
bargain.  This is because unlawful unilateral changes inherently
interfere with the free exercise of the right of employees to
engage in collective bargaining. See, e.g., Teamsters v.
Aroostook County Sheriff's Dept., No. 92-28 at 21 (Nov. 5, 1992); 
Coulombe v. City of South Portland, No. 86-11 at 25 (Dec. 29,
1986); Lane v. M.S.A.D. No. 8, 447 A.2d at 810.   
     Upon finding that a party has engaged in a prohibited
practice, we are directed by section 968(5)(C) to order that
party "to cease and desist from such prohibited practice and to
take such affirmative action, including reinstatement of
employees with or without back pay, as will effectuate the
policies of this chapter."  A properly designed remedial order 

[end of page 12]

seeks "a restoration of the situation, as nearly as possible, to
that which would have obtained" but for the prohibited practice. 
Caribou School Dept. v. Caribou Teachers Association, 402 A.2d
1279, 1284 (Me. 1979).
     A restoration of the situation in the present case requires
two steps:  a return to the status quo that the Employer was
obligated to maintain following the expiration of the collective
bargaining agreement and restoring the employees to the position
they would have been in were it not for the violation. 
Consequently, the Board orders the Lewiston School Department to
cease and desist imposing the full amount of the health insurance
premium increases occurring since July 1, 2008 on the unit
employees.  The Employer must return to sharing the premium costs
with the employees in the same proportion that the employer and
employees had shared the premium during the term of the
agreement.  We further order the School Department to reimburse
employees for the excess deductions made since July 1, 2008. 
This reimbursement must be made within 30 days of this order.  In
accordance with Board practice,[fn]5 interest must be computed
in accordance with Florida Steel Corp., 231 NLRB 651 (1977),
utilizing the interest rates specified in New Horizons for the
Retarded Inc., 283 NLRB 1173 (1987).[fn]6

     5  See AFSCME, v. City of Bangor, No. 80-41, at 11 (Sept. 24,
1980), modified in part, No. CV-80-574 (Me. Super. Ct., Pen. Cty.,
Jan. 28, 1982), Board Order aff'd, 449 A.2d 1129 (Me. 1982).

     6  Interest is to accrue commencing with the last day of each
calendar quarter of the time period subject to reimbursement, on the
total amount then due and owing at the short-term Federal rate then in
effect, and continuing at such rate, as modified from time to time by
the Secretary of the Treasury, until the Lewiston School Department
has complied with this order.  From July 1, 2008, to September 30,
2008, the short-term Federal rate was 5 percent. From October 1, 2008,
to December 31, 2008, the short-term Federal rate was 6 percent.  From
January 1, 2009, to March 31, 2009, the short-term Federal rate is 5
percent.  See, generally, NLRB Compliance Manual (III), section 10566
and NLRB Memorandum OM 09-26 (Dec. 30, 2008). 

[end of page 13]
 
                              ORDER

     On the basis of the foregoing discussion, and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. § 979-H(2), it is ORDERED:
          
     1.  That the Lewiston School Department CEASE AND
     DESIST from deducting health insurance premium
     contributions from employee paychecks at the rate that
     was implemented on July 1, 2008, and, until the parties
     have agreed otherwise, return to the same proportion of
     the total premium the employees contributed under the
     2005-2008 collective bargaining agreement.

     2. That within 30 days of this order, the Lewiston
     School Department shall reimburse the employees for the
     excess amount deducted since July 1, 2008, with
     interest.

     3. That the Lewiston School Department shall notify the
     Executive Director, in writing, within 30 days from the
     date of this order, of what steps have been taken to
     comply with the order.


Dated at Augusta, Maine, this 15th day of January, 2009.    


	  

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) (Supp. 2008) to seek a review of this decision and order by the Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80(C) of the Rules of Civil Procedure.

MAINE LABOR RELATIONS BOARD

[signed]
Peter T. Dawson
Chair

[signed]
Karl Dornish, Jr.
Employer Representative

[signed]
Wayne W. Whitney
Employee Representative