Case No. 12-17
Issued: August 6, 2012








	   The question before this Board is whether to affirm, deny,
or modify the Executive Director's dismissal of the prohibited
practice complaint filed on February 22, 2012 by the Maine State
Employees Association, SEIU Local 1989 (MSEA).  The complaint
alleges that, after the expiration of the parties' collective
bargaining agreement and while the parties were negotiating a
successor agreement, the State implemented various unilateral
changes by contracting out and reorganizing bargaining unit work
without giving MSEA prior notice and an opportunity to bargain.
The complaint also alleges the State failed to provide relevant
and necessary information requested by MSEA regarding these
issues.  The Board's Executive Director dismissed the complaint
for failure to state a violation of the law, rejecting as
unsupported by Maine law the Union's argument that the status quo
does not include any authority to contract out or reorganize unit

     The legal theory underlying the complaint as it stands is
based on the premise that the State's authority to reorganize and
contract out unit work was based solely on a waiver of the
Union's right to bargain.  The Union contends that because
waivers do not survive the expiration of the collective

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bargaining agreement, the State's authority to reorganize and
contract out unit work expired when the contract expired.  
After rejecting the Union's legal theory, the Board's Executive
Director concluded that the terms of the expired agreement
authorized the conduct at issue and dismissed the complaint.
     The MSEA appealed the Executive Director's dismissal in a
formal motion filed on April 20, 2012, which included extensive
legal argument.  The parties presented oral argument to the Board
on May 18, 2012, and filed additional written submissions on 
June 8, 2012.

     On appeal, MSEA presents to the Board the same argument that
the Executive Director rejected as unsupported by Maine law.  
The MSEA contends that the Management Rights provision and the
Contracting Out provision of the expired collective bargaining
agreement are simply waivers of the Union's right to bargain that
expired when the contract expired and, as such, cannot be
considered part of the status quo that must be maintained while
the parties are negotiating a successor agreement.  In support of
this argument, the Union relies on case law from the National
Labor Relations Board, particularly the recent case of E.I.
Dupont De Nemours, Louisville Works, 355 NLRB No. 176 (2010).  
In that case, a particular piece of the contractual provision on
health benefits authorized the employer to make certain
unilateral changes on an annual basis.  The NLRB viewed that
provision as a waiver, comparable to a management-rights clause,
which did not continue in effect after the expiration of the
agreement.  Id. at 2.  Consequently, the NLRB held that the only
past practice relevant to the exercise of authority under such a
"waiver" was past practice (that is, acquiescence to the change)
occurring after the expiration of the agreement.  Id.  The NLRB
did not consider evidence of the practice established while the 

[end of page 2]

agreement was in effect because to do so would have the effect of
nullifying its holding that waivers do not survive the expiration
of the agreement.  Id.  The NLRB held that the employer's post-
expiration change to the health benefit was an illegal unilateral
change because the employer's authority to make the change
expired with the expiration of the collective bargaining
agreement.  Id. at 3.

     We agree with the basic premise that a waiver of a right to
demand bargaining such as that found in a zipper clause does not
survive the expiration of the collective bargaining agreement
unless there is clear and unambiguous language of that intent.  
We do not agree with the Union that this principle has any
bearing on this case, which is about the status quo that must be
maintained after the expiration of the agreement.  
     A fundamental principle of labor law is 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., MSEA v. City of
Lewiston School Dept., No. 09-05 (Jan. 15, 2009), aff'd,
AP-09-001 (Oct. 7, 2009, Androscoggin Sup. Ct., Delahanty, J.);
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. MSAD No. 8,
447 A.2d 806, 809-10 (Me. 1982).  The prohibition against making
unilateral changes requires that the parties 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.  While the terms of the expired agreement
are evidence of the status quo that must be maintained, this
Board has also held that "[e]stablished practice must be
maintained pending negotiations for a new contract, whether that 

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practice is reflected in the . . . contract or not."  Thomas
Blake and South Portland Prof'l Firefighters Assoc. v. City of
South Portland, No. 94-12 (June 2, 1994) at 12, n.4, citing
Lincoln Fire Fighters' Assoc. v. Town of Lincoln, No. 93-18 
(Apr. 21, 1993).
     The impact of adopting the Union's argument would result in
a major reformulation of the status quo doctrine in Maine.  
The Employer would no longer be able to take actions consistent
with established practice and with the terms of the expired
agreement.  The Union's legal theory cannot be adopted without
overturning the Board's long-established law regarding the duty
to maintain the status quo while negotiating a successor
agreement.  This Board's case law has repeatedly demonstrated
that when an expired agreement authorized the employer to make a
particular change, it would not be an illegal unilateral change
for the employer to make a post-expiration change consistent with
that practice.  See MSEA v. Lewiston School/City, No. 90-12 
(Aug. 21, 1990)(the expired agreement authorized employer to
reclassify employees after 'consultation' with union, therefore
the status quo authorized reclassifications consistent with that
practice); Teamsters v. Boothbay/Boothbay Harbor CSD, No. 86-02
(March 18,  1986)(expired agreement authorizing employer to
subcontract bargaining unit work under specified conditions
established the status quo); and MSEA v. City of Lewiston School
Dept., No. 09-05 (Jan. 15, 2009) (employer's unilateral increase
of employees' share of health insurance premium was unlawful as
it was inconsistent with practice of maintaining a proportional
share established under the terms of the expired agreement). 
Consistent with this Board's precedent, the relevant legal
question in this case is whether the conduct of the State
maintained the status quo or changed it. 

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     Adoption of the Union's waiver theory would supplant the
established analysis of determining the status quo that the
parties must maintain.  In its stead, the Board would have to
grapple with whether a particular provision in an expired
agreement should be viewed as a grant of authority to the
employer or a waiver of the union's right to bargain.  As the
Employer pointed out at oral argument, every provision giving the
employer some authority to take some action relative to a
mandatory subject can be viewed to some extent as a waiver of the
union's right to bargain over that issue.  In many respects, the
grant-of-authority or waiver issue is aptly described as being
two sides of the same coin.  As such, the Union's legal theory
presents a nearly impossible challenge of framing the issue so
that this Board, or Maine's public sector community more
generally, can discern the answer in any given case.
     For the foregoing reasons, we expressly reject the Union's
request that we adopt the same waiver analysis used by the NLRB
in E.I. DuPont De Nemours.  To do so would be inconsistent with
our settled case law on the statutory obligation to maintain the
status quo while negotiating a successor agreement.  We are also
concerned that the lack of any discernible framework for applying
such a theory would create an enormous amount of uncertainty for
the public sector labor relations community in Maine.
     While we emphasize that the Union's argument has no support
in Maine law,[fn]1 we also note that the federal law is not as 

     1  The cases from other state jurisdictions offered in support of
the Union's theory do little to help their case and, to the extent
that the cases actually addressed the question before us,  the
analysis used varied depending on factors such as statutory or
judicially recognized concepts of managerial prerogatives, the legal
status of evergreen clauses, and the specific language of the
management rights provision and past practices with respect to that

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clearly established as the Union asserts.  A few days after the
oral argument in this case, the U.S. Court of Appeals for the
District of Columbia issued its decision on the appeal of the
NLRB decision in the E.I. DuPont case.  E.I. Du Pont De Nemours
and Company v. NLRB, 682 F.3d 65 (D.C. Cir., June 8, 2012), 2012
U.S. App. LEXIS 11604.  The D.C. Court of Appeals held that the
employer's unilateral changes to the benefits plan were
consistent with the status quo "expressed in the Company's past
practice" and refused to enforce the NLRB's decision.[fn]2  Id.,
2012 U.S. App. LEXIS 11604 at 8.  Quoting the 6th Circuit Court,
the D.C. Court of Appeals noted:
     [I]t is the actual past practice of unilateral activity
     under the management-rights clause of the CBA, and not
     the existence of the management-rights clause itself,
     that allows the employer's past practice of unilateral
     change to survive the termination of the contract. 

Id., 2012 U.S. App. LEXIS 11604 at 10, citing Beverly Health and
Rehabilitation Services, Inc. v. NLRB, 297 F.3d 468, 481 (6th
Cir. 2002).  We consider this description to be an accurate
reflection of our prior holdings on the issue of post-expiration
unilateral changes.           
     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.  However, we conclude that the Executive
Director erred by dismissing the complaint for failure to state a
claim.  The Executive Director failed to cite any legal basis for
his conclusion that the mere existence of the Management Rights 

     2  The D.C. Circuit Court of Appeals remanded the case to the
NLRB because the Board "failed to give a reasoned justification for
departing from its precedent" regarding unilateral changes pursuant to
past practices. 2012 U.S. App. LEXIS 11604 at 12.

[end of page 6]  

and Contracting Out provisions authorized the State's actions
post expiration.
     There are three elements necessary to state a viable
complaint of a unlawful unilateral change.  The Employer action
must be unilateral, it must be a departure from a well-
established practice, and it must involve a mandatory subject of
bargaining. See, e.g., Local 3771, IAFF v. Town of Ogunquit, No.
03-11 at 6 (Aug. 6, 2003), citing Monmouth School Bus Drivers &
Custodians/Maintenance Assn. v. Monmouth School Committee, No.
91-09 at 55 (Feb. 27, 1992).  The primary deficiency of the
complaint before us is that it does not contain any allegations
that the conduct complained of was a change from established
practice.  As provided by MLRB Rule Ch. 12 §8(2), the Complainant
will have the opportunity to amend the complaint to allege facts
demonstrating that the alleged unilateral changes are
inconsistent with established practice.  
     There are additional deficiencies in the complaint that will
result in its dismissal if not properly addressed in an amend-
ment.  First of all, the complaint does not include sufficient
detail about the conduct at issue to identify it to the extent
necessary to allow the State to respond.  As the State noted in
its Memorandum filed on March 13, 2012, "[t]he complaint does not
inform Respondent exactly what it is alleged to have done, when
it is alleged to have done it, and more significantly, whether it
has already taken the alleged action or merely planned or
contemplated it."  Memorandum in Support of State's Motion for a
Ruling on Sufficiency, at p. 9-10 (March 13, 2012).
     The Board's Rules require a complaint to include a clear and
concise statement of the facts so that the respondent is on
notice of the complaint against it and can respond to the

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specific allegations.  MLRB Rule Ch. 12, §5, detailing the
required contents of the complaint, states "[t]he complaint must
contain, insofar as is known, the information specified in this
rule."  Subsection 4, requiring a concise statement of facts,
states in its entirety: 

     4. Concise Statement of Facts. A clear and concise
     statement of the facts constituting the complaint,
     including the date and place of occurrence of each
     particular act alleged, names of persons who allegedly
     participated in or witnessed the act, and the sections,
     including subsection(s), of the labor relations
     statutes alleged to have been violated. The complaint
     must consist of separate numbered paragraphs with each
     paragraph setting out a separate factual allegation.

     While recognizing that the Union might not know all of the
details identified in subsection 4 about every action complained
of, we conclude that it is necessary for the Complainant to amend
the complaint to include enough specifics to enable the
Respondent to identify the conduct at issue.  In its Memorandum
of March 13, 2012, the State describes the difficulty in
responding to the complaint as drafted on pages 9 through 12. 
For example, the Respondent notes, "MSEA alleges that the State
contracted with outside vendors to maintain roads formerly
maintained by employees of DOT, but does not allege what roads or
even what areas, what vendors, or when" or whether the work has
actually been performed.  State Memorandum at 10.  The allega-
tions such as that found in 8(d) of contracting out "for various
other functions within Maine Revenue Services, the Departments of
Transportation, Health and Human Services, Inland Fisheries and
Wildlife, and Labor, among others" are similarly lacking in
specifics.  In addition, the allegations in 13 regarding the
"numerous" reorganizations in five departments are insufficient
because there are no specifics beyond the name of the department.

[end of page 8]
     The final insufficiency of the complaint relates to the
allegation that the State violated the statute by failing to
provide relevant and necessary information to MSEA as requested. 
The complaint includes at least ten statements (17 to 22e) that
make no allegation of fact but merely refer to various attach-
ments to the complaint.  As we have previously noted, "the
Board's rules do not contemplate the submission of documentary
evidence as part of the complaint. Such submissions should be
discouraged."  Aline Dupont v. MSEA, No. 11-05 at 5 n. 3 
(March 27, 2012), citing MLRB Rule Ch. 12, §5.  Unless the
complaint is amended to include allegations of fact constituting
a failure to provide relevant information needed by MSEA for the
performance of its duties as bargaining agent, this aspect of the
complaint will be dismissed as well. 


     We hereby ORDER that the complaint be reinstated in order to
allow the Complainant the opportunity to amend the complaint as
provided by MLRB Rules Ch. 12, §8(2).  With respect to the charge
of a unilateral change in the terms and conditions of employment
in violation of 26 M.R.S.A. §979-C(1)(A) and (E), the complaint
must be amended to:
     1) include allegations of an established practice and
     that the conduct complained of was a change from
     established practice, and

     2) include allegations of specific facts sufficient to
     enable the Respondent to identify the conduct being
     complained of.

With respect to the charge that the State failed to provide
relevant information needed by the Union for the performance of
its duties as bargaining agent, thereby violating 26 M.R.S.A.
§979-C(1)(A) and (E), the complaint must be amended to:

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     1) include allegations of conduct constituting a
     failure to provide relevant and necessary information
     without reliance on any attachments to the complaint.

     In accordance with MLRB Rules Ch. 12, §8(2), if the
Complainant desires to file an amended complaint to cure the
deficiencies identified in this Order, the amended complaint must
be filed within 15 calendar days of the service of this Order. 
Due to the length and complexity of this complaint, the amendment
should be presented as a self-standing substitute for the
original complaint, rather than amending the original complaint
on a paragraph by paragraph basis.  If the complaint is not
amended, it will be dismissed.                    
Dated at Augusta, Maine, this 6th day of August, 2012.

                             			MAINE LABOR RELATIONS BOARD

/s/ Katherine I. Rand, Esq.

/s/ Robert L. Piccone
Employee Representative

/s/ Karl Dornish, Jr.
Employer Representative

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