The National Correctional Employees Union (NCEU) filed a
prohibited practice complaint on November 15, 2010, in which it
alleged that York County violated section 964(1)(A),(B),(C) and
(E) of the Municipal Public Employees Labor Relations Law, Title
26, 961 et seq. (the "Act"), by making unilateral changes in
working conditions and by refusing to process grievances pursuant
to the provisions of the collective bargaining agreement entered
into with Teamsters Union Local No. 340, the predecessor union. 
The County submitted an answer to the complaint on December 3,
2011, in which it asserted that the collective bargaining
agreement in question became null and void when the Teamsters
Union was decertified.
          
    While preparing for the prehearing conference scheduled for
February 3, 2011, the parties suggested that much, if not all, of
the case could be resolved if the Board were to address one
specific issue on the basis of a stipulated record.  To that end,
the prehearing conference was cancelled and the parties
established a schedule for submitting their stipulations and
briefs for consideration by the Board.    
                                   
    The stipulated record was received by the Board, with
exhibits, on February 16, 2011.  The parties' briefs were

[end of page 1]

received on March 18, 2011, and reply briefs were received on
April 4, 2011.  Throughout this proceeding, the Union was
represented by John Connor, Esq., and the County was represented
by Gene R. Libby, Esq., and Timothy O'Brien, Esq.  The Maine
Labor Relations Board met on April 27, 2011, to consider the
arguments and deliberate on this matter.

                          JURISDICTION
  
     The National Correctional Employees Union is the bargaining
agent for the employees in the corrections bargaining unit at
York County.  The Union is the bargaining agent within the
meaning of 26 M.R.S.A. 962(2), and York County 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 ISSUE
            
  The Complainant, National Correctional Employees Union, and
the Respondent, York County, agree that in light of the
stipulated facts below, the legal issue to be decided is whether
the contractual grievance and arbitration provision set forth in
the collective bargaining agreement between York County and the
Teamsters survives the decertification of the Teamsters Union.
  
                         STIPULATED FACTS

  1.  On September 1, 2010, the National Correctional
Employees Union ("NCEU") was certified as the new collective
bargaining agent for a unit consisting of correctional officers
employed by York County and working in the York County Jail.
  2.  Prior to the NCEU's certification, the unit had been
represented for years by Teamsters Local No. 340 ("Teamsters"). 
York County and the Teamsters had been party to several
[end of page 2]

collective bargaining agreements over the years with the last one
expiring on December 31, 2007.
  3.  A true copy of the last Collective Bargaining Agreement
between York County and the Teamsters is attached hereto as
Exhibit A.
  4.  Pursuant to Article 51 of the Agreement, the CBA
remained in effect while the parties continued to negotiate over
a successor agreement.
  5.  Negotiations for a successor agreement between the
Teamsters and York County commenced at or about the expiration of
the last contract in December of 2007 and continued through 2010. 
These successor negotiations included the use of the procedures
set forth in 26 M.R.S.A. 965 which were administered and
overseen by the Maine Labor Relations Board.
  6.  Both this process and York County's negotiations with
the Teamsters terminated upon the decertification of the
Teamsters as the exclusive collective bargaining agent for the
correctional employees unit within York County on September 1,
2010.
  7.  The certification of the NCEU triggered an obligation on
behalf of York County to bargain with the NCEU.
  8.  The first set of negotiations over a collective
bargaining agreement with the NCEU were requested by the Union in
late October and began on mutually agreed-upon dates in December
and are ongoing.
  9.  Beginning on September 27, 2010, the NCEU began filing
grievances pursuant to the grievance and arbitration provision
and procedure set forth in Article 10 of the CBA between York
County and the Teamsters.
    10.  On October 4, 2010, York County informed the NCEU that
it was reviewing the issue of whether the contractual grievance
and arbitration process remained in place in light of the
[end of page 3]

decertification.  A true copy of that notification is attached as
Exhibit B.
    11.  On October 8, 2010, York County informed the NCEU by
letter that it had completed its review of the matter and
determined that the prior CBA was void.  A true copy of that
notification is attached as Exhibit C.
    12.  Based upon that determination, York County returned the
grievances to the NCEU on the basis that the CBA was void as of
the date of the decertification of the Teamsters and in the
absence of a valid CBA with the NCEU, there wasn't any
contractual grievance and arbitration provision or process in
place.  
    13.  When the NCEU advanced the grievances to the next stage
of the grievance process contained in the CBA with the Teamsters,
York County again returned the grievances to the NCEU on 
October 27, 2010.  A true copy of this transmittal letter is
attached as Exhibit D.
    14.  Additional grievances were submitted by the NCEU and
returned by York County on the same basis in November and
December, 2010, including via letters dated December 2, 2010,
December 8, 2010 (two), December 9, 2010, and December 23, 2010. 
True copies of these letters are attached as Exhibit E.
    15.  As of this date, the NCEU has not advanced any of the
grievances referenced above to arbitration.
  
  The exhibits A-E noted above were submitted by the parties
and are considered part of the record.  The collective bargaining
agreement (exhibit A) was signed on June 15, 2005.

                            DISCUSSION
   
  The issue that is at the core of this case is whether the
Employer is obligated to process grievances filed by the NCEU
under the procedures established in the collective bargaining
agreement negotiated with the predecessor bargaining agent, the
[end of page 4]

Teamsters Union Local 340.  The NCEU asserts that the "evergreen
clause" contained in that agreement operates to keep the entire
agreement in effect beyond its December 31, 2007, expiration
date, and that the County violated 964(1)(E) by making unilateral
changes in various mandatory subjects of bargaining.  The County
argues that the collective bargaining agreement became null and
void on September 1, 2010, when the Teamsters Union was
decertified as the bargaining agent for the employees in the
unit.  We will address each of these arguments in turn.
 
  The most recent collective bargaining agreement for the York
County Corrections unit was negotiated by the County and the
Teamsters Union, was effective on January 1, 2005, and had a 
stated expiration date of December 31, 2007.  According to
stipulation number 4 above, the agreement remained in effect
while the County and the Teamsters negotiated over a successor
agreement.  These negotiations continued through 2010 and
included the use of the dispute resolution procedures established
in statute, 26 M.R.S.A. 965.  These negotiations terminated on
September 1, 2010, the date the Teamsters Union was decertified. 
The certification of NCEU also occurred September 1, 2010, and
marked the beginning of the County's obligation to bargain with
the successor bargaining agent, as noted in the stipulations. 
Negotiations between the County and NCEU are ongoing.
  
  Article 51 of the collective bargaining agreement includes
what is commonly referred to as an "evergreen clause" providing
that the contract "shall remain in full force and effect during
the period of negotiations" for a successor agreement. The full
text of Article 51, "Duration of Agreement" is:
  
  Except as otherwise herein specifically stated, this
  Agreement shall be effective as of January 1, 2005, and
  shall remain in full force and effect until December
  31, 2007.  It shall be automatically renewed from year
  to year thereafter, unless either party shall notify
[end of page 5]

  the other, in writing, one hundred twenty (120) days
  prior to the anniversary date that it desires to modify
  this Agreement.  In the event that such notice is
  given, negotiations shall begin not later than thirty
  (30) days prior to the anniversary date hereof.  This
  Agreement shall remain in full force and effect during
  the period of negotiations and until notice of termin-
  ation of the Agreement is provided to the other party
  in the following manner.  In the event that either
  party desires to terminate this Agreement, a written
  notice must be given to the other party not less than
  ten (10) days prior to the desire termination date,
  which said date shall not be before December 31, 2007.

  Before addressing the arguments of the parties, we must
consider the interplay of the Act's limitation on the duration of
a collective bargaining agreement and the evergreen clause in the
agreement between York County and the Teamsters. Section 965,
sub- 1 establishes the obligation to bargain and defines that to
mean a mutual obligation:       
  
  A. To meet at reasonable times;

  B. To meet within 10 days after receipt of written
  notice from the other party requesting a meeting for
  collective bargaining purposes, as long as the parties
  have not otherwise agreed in a prior written contract.
  This obligation is suspended during the period between
  a referendum approving a new regional school unit and
  the operational date of the regional school unit, as
  long as the parties meet at reasonable times during
  that period;          

  C. To confer and negotiate in good faith with respect
  to wages, hours, working conditions and contract
  grievance arbitration, except that by such obligation
  neither party may be compelled to agree to a proposal
  or be required to make a concession and except that
  public employers of teachers shall meet and consult but
  not negotiate with respect to educational policies; for
  the purpose of this paragraph, educational policies may
  not include wages, hours, working conditions or
  contract grievance arbitration;

  D. To execute in writing any agreements arrived at, the
  term of any such agreement to be subject to negotiation
  but may not exceed 3 years; and  
[end of page 6]

  E. To participate in good faith in the mediation, fact-
  finding and arbitration procedures required by this
  section.
                                          
Paragraph D, above, restricting the term of any agreement to
three years, has been part of the Act since it was enacted in
1969. (P.L. 1969, ch. 424, 1)[fn]1.  In the 1989 Auburn
Firefighters case, the Board held that  965(D) meant that an
automatic renewal provision could not operate to extend the life
of an agreement beyond three years.  Auburn Firefighters Assoc.,
IAFF, v. City of Auburn, No. 89-01 (March 31, 1989) at p. 20.  In
that case, the employer claimed the parties had reached a bona
fide impasse in their negotiations and it was therefore justified
in making unilateral changes in wages.  The parties' collective
bargaining agreement stated that the contract's terms and
provisions would remain in effect after the expiration date if
the parties were engaged in interest arbitration.  The Board
stated,

     The parties' contract specifies that its terms and
  provisions shall remain in effect after the March 31,
  1987 expiration date if the parties are engaged in
  interest arbitration pursuant to the MPELRL.  Because
  the MPELRL contains a limitation on the duration of
  contracts of three years, see 26 M.R.S.A.  965(D)
  (1988), the parties' agreement regarding the level of
  benefits, including wages, continued in effect until
  three years from the effective date of April 1, 1985,
  or until March 31 of 1988. On the basis of the wording
  of the collective bargaining agreement in this regard
  we conclude that the City was contractually bound,
  after the Association's interest arbitration request,
  filed on February 3, 1988, to continue contractually-
  established wages and other benefit levels unchanged,
 
__________
  1.  The only change to paragraph D since its enactment in 1969
was in 2009 when "shall not" was changed to "may not".  This change
was made to conform to modern legislative drafting standards.  See
Maine Revisor of Statutes Legislative Drafting Manual, Ch. 2, section
1 "Legal action verbs: shall, must and may" , pp. 90-92 ("Do not use
'shall not'. Use 'may not' to prohibit an action.")

[end of page 7]

  while that arbitration was pending, until March 31 of
  1988.

Auburn Firefighters Assoc., IAFF, v. City of Auburn, No. 89-01
(March 31, 1989) at p. 20.
  
  In light of the limitation of 965(1)(D), we hold that the
evergreen clause in the collective bargaining agreement
negotiated by York County and Teamsters Union Local 340 cannot
operate to extend the agreement beyond the maximum duration of
three years.  As the contract in question had an effective date
of January 1, 2005, the three-year period ended on December 31,
2007, which was the expiration date of the collective bargaining
agreement by its terms.  The evergreen clause could not operate
to extend the contract beyond that date.[fn]2

  Our conclusion that the evergreen clause could not extend
the term of the agreement beyond the three-year statutory limit
does not mean that there is no legal significance to the expired
collective bargaining agreement.  It is well-established law that
following the expiration of a collective bargaining agreement,
the obligation to bargain precludes the employer from making
unilateral changes in the mandatory subjects of bargaining while
the parties are negotiating a successor agreement.  The Board
recently summarized this prohibition against unilateral changes
with the following:    
            
  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

_________
  2.  We note that the parties could execute a separate agreement
at the start of negotiating a successor agreement (or any time,
actually) to continue the prior or existing agreement as long as
negotiations continue.  The three-year limit of 965(1)(D) would run
from the date that agreement was effective.

[end of page 8]

  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
  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.

MSEA v. Lewiston School Dept., No. 09-05 at 6-7 (Jan. 15, 2009),
aff'd AP-09-001, Androscoggin Sup. Court, Delahanty, J.(Oct. 7,
2009).

  At this point, we can boil down the stipulated facts to the
following:  When the collective bargaining agreement expired on
December 31, 2007, the Teamsters Union and the County were
engaged in negotiations for a successor agreement.  The terms of
the collective bargaining agreement constituted evidence of the
status quo that was required to be maintained with respect to the
mandatory subjects of bargaining.  The obligation to bargain with
the Teamsters continued until September 1, 2010, when the
Teamsters Union was decertified and the NCEU was certified as the
bargaining agent for the Corrections unit.  At that point, the
County was obligated to deal with NCEU as the bargaining agent,
but the status quo the County had to maintain was the same and
the expired contract still served of evidence of that status quo.
 
  There is no need to address the County's argument that the
agreement became null and void upon the decertification of the
Teamsters because we have already concluded that the evergreen
clause could not extend the life of the agreement beyond the
three-year limit imposed by 965(1)(D).  The status quo doctrine
[end of page 9]

controlled while the County was negotiating for a successor
agreement with the Teamsters.  The obligation to maintain the
status quo continued after the Teamsters' decertification because
the County had a continuing obligation to bargain with the NCEU. 
Had there been no union on the scene at the time of the Teamsters
decertification, the status quo would not apply because there
would have been no duty to bargain or potential violation of
964(1)(A).           
 
  With respect to the continued vitality of the arbitration
provision, there is both case law and express statutory law that
must be considered.  Clearly, contract grievance arbitration is a
mandatory subject of bargaining, as it is identified specifically
as a mandatory subject along with wages, hours and working
conditions.  26 M.R.S.A. 965(C).  The two components of this
mandatory subject, that is, the grievance procedure generally and
an agreement to submit grievances to arbitration, are treated
differently as a result of two Law Court decisions issued in 1994
and 1995, and the subsequent enactment of 964-A. 
 
  In the 1994 Teamsters v. Portland Water District case, the
Law Court held that the obligation to arbitrate grievances is
extinguished with the expiration of the collective bargaining
agreement:

       As a matter of law, no obligation exists to
  arbitrate a grievance that arises after the expiration
  of a collective bargaining agreement unless that
  grievance involves rights that vested or accrued, or
  facts or occurrences that arose while the collective
  bargaining agreement was in effect.  Lane v. Bd. of
  Directors of Maine Sch. Admin. Dist. No. 8, 447 A.2d  
  806 (Me. 1982).[fn]5 . . .  While an agreement is in
  effect, the terms and conditions therein are
  enforceable as a matter of contract and may be subject
  to arbitration.  Once the agreement expires, however,
  the parties lose their contractual rights and are left
  with only the statutory duty to bargain in good faith. 
  Lane, 447 A.2d 810.  This duty requires the parties to
[end of page 10]

  maintain the status quo until either a new contract is
  ratified, or the negotiations reach a bona fide
  impasse.  The remedy for a breach of the duty is a
  prohibited practice complaint before the Board, rather
  than grievance arbitration under the expired contract. 
  Id. at 809-810.

Teamsters Union Local #340 and Ralph Dobson v. Portland Water
District, 651 A.2d 339, at 341-342 (1994).
  
  The Law Court also quoted extensively from the U.S. Supreme
Court's decision in Litton Financial Printing Division v. NLRB
which held that arbitration cannot be imposed without the
parties' consent: 
   
  A recent decision of the United State Supreme Court
  confirms our ruling in Lane.  In Litton Fin. Printing
  Div. v. N.L.R.B., the Court addressed the question of
  whether a dispute over post-expiration layoffs arose
  "under the agreement despite its expiration" and was
  thus subject to arbitration under the expired
  agreement.  501 U.S. 190, 115 L. Ed. 2d 177, 111 S. Ct.
  2215 (1991).  In deciding that there was no obligation
  to arbitrate the layoff decisions, the Court held that
  the right to arbitration exists "only where a dispute
  has its real source in the contract.  The object of an
  arbitration clause is to implement a contract, not to
  transcend it." . . . "A post expiration grievance can
  be said to arise under the contract only where it
  involves facts and occurrences that arose before
  expiration, where an action taken after expiration  
  infringes a right that accrued or vested under the
  agreement, or where, under normal principles of
  contract interpretation, the disputed contractual right
  survives expiration of the remainder of the agreement." 
  Id. at 205-06.  The Court further stated that
  "arbitration is a matter of consent and that it will
  not be imposed upon parties beyond the scope of their
  agreement."  Id. at 201.  Additionally, the Court noted
  that, "in the absence of a binding method for
  resolution of post expiration disputes, a party may be
  relegated to filing an unfair labor practices charge
  with the [N.L.R.B.]."  Id.                              
                             
Teamsters v. Portland Water District, 651 A.2d 339, at 341-342
fn. 5.  In the following year, the Law Court decided MSEA v.
[end of page 11]

BOER, affirming the same principle that arbitration cannot be
compelled under the Uniform Arbitration Act because the agreement
to arbitrate expired when the collective bargaining agreement
expired.  MSEA v. Bureau of Employee Relations, 652 A.2d 654, 655
(1995).      
 
  Section 964-A of the Act, "Continuation of Grievance
Arbitration Provisions," was enacted after, and in direct
response to, these Law Court decisions. Our recent decision in
Sanford Firefighters was the first instance in which this Board
had the opportunity to discuss the genesis and impact of section
964-A.  Sanford Professional Firefighters, Local 1624 v. Town of
Sanford, No. 11-04 (Jan. 28, 2011).  Although the Board's 
discussion centered around 964-A(2), which applies to collective
bargaining agreements signed after October 1, 2005, there was
some discussion about 964-A(1) which applies to agreements
signed before Oct. 1, 2005, such as the one in this case.  The
Board described the manner in which 964-A was enacted and then
later amended:             
  
  . . . In 1997, the Legislature enacted 964-A which
  statutorily continued the arbitration provision beyond
  the expiration of the collective bargaining agreement
  for the limited purpose of addressing grievances
  arising out of disciplinary measures.  P.L. 1997 c.
  773, 1.  As a result, grievances related to
  disciplinary matters that occurred after the expiration
  of the collective bargaining agreement could proceed to
  arbitration.
       
       The 2005 amendment extended the statute so that
  the grievance arbitration provision continued in effect
  for all subjects that must remain in effect after the
  expiration of the collective bargaining agreement "by
  virtue of the static status quo doctrine."  This
  language refers to the principle first articulated in
  Lane, cited above, that upon the expiration of a
  collective bargaining agreement, the statutory duty to
  bargain "requires the parties to maintain the status
  quo until either a new contract is ratified, or the
  negotiations reach a bona fide impasse."  Lane v. MSAD
[end of page 12]

 #8, 447 A.2d 806 (Me. 1982).  Thus, 964-A now dictates that
those provisions of the expired agreement that remain in effect
by virtue of the static status quo doctrine are enforceable
through arbitration.[fn]3 Consequently, grievances regarding any
of those provisions based on conduct occurring after the
expiration of the collective bargaining agreement can proceed to
arbitration."         

  Section 964-A, sub-1 applies because the collective
bargaining agreement at issue in the present case was signed on
June 15, 2005.  Consequently, "the grievance arbitration
provisions of the expired contract pertaining to disciplinary
action remain in effect until the parties execute a new
contract."  Under sub-1, the arbitration provisions do not
remain in effect for provisions that do not pertain to
disciplinary action.            
 
  With respect to the processing of grievances through the
steps preceding arbitration, however, the obligation to maintain
the status quo applies just like it applies for any other
mandatory subject of bargaining.  See Teamsters Union Local No.
48 v. Boothbay/Boothbay Harbor Community School Dist., No. 86-02,
at 11 (March 18, 1986), Sanford Fire Fighters Ass'n v. Sanford
Fire Commission, No. 79-62, at 10-11 (Dec. 5, 1979) and Easton
Teachers Ass'n v. Easton School Committee, No. 79-14, at 5 
(March 13, 1979) (The duty to maintain the status quo includes
the duty to continue the grievance procedure).  The County's
argument that the obligation was terminated with the decertif-

ication of the Teamsters Union is without merit.  This Board
addressed this argument directly in its recent decision in the
Saco Public Works case, holding,

_____________
  3.  The original bill that led to the 2005 enactment of 964-A
would have imposed an "evergreen" clause, thereby keeping the entire
contract in effect while a successor agreement was being negotiated.
L.D. 1123, H.P. 776 (122nd Legislature).

[end of page 13]
  
  . . . the expired collective bargaining agreement is
  evidence of the status quo that the City is obligated
  to maintain while the parties are negotiating a new
  collective bargaining agreement.  The fact that the
  agreement was negotiated with a different union is
  irrelevant as the obligation is not a contractual
  obligation but one based on the duty to bargain and the
  correlative duty to maintain the status quo. 

Saco Public Works Ass'n/Saco Workers Alliance v. City of Saco,
No. 11-02 (March 29, 2011) at 14-15.

  The stipulated issue presented to this Board is "whether the
contractual grievance and arbitration provision set forth in the
collective bargaining agreement between York County and the
Teamsters survives the decertification of the Teamsters Union." 
As the discussion above indicates, it is not possible to provide
a simple yes or no answer to that question.  We summarize our
conclusions by noting the following: 
  
  The expired collective bargaining agreement could not
  be extended beyond its three-year term by the evergreen
  clause because 965(1)(D) imposes a maximum duration of
  three years.     
            
  The grievance procedure in the expired contract does
  not survive as a contractual matter, but does serve as
  evidence of the status quo that must be maintained
  pursuant to the duty to bargain.

  The arbitration provision continues in effect only with
  respect to grievances pertaining to disciplinary
  measures pursuant to 26 M.R.S.A. 964-A(1).
  
In light of these conclusions, the Board suggests that each party
reconsider its position and attempt to resolve any outstanding
issues amicably.  We will hold the prohibited practice complaint
in abeyance while the parties attempt to resolve the matter.  If
any matters remain unresolved, the Union may petition this Board
to proceed further with this case.
[end of page 14]

  
Dated at Augusta, Maine, this  17th day of May, 2011.