Mountain Valley Education Association v. MSAD #43 Board of Directors, MLRB No. 93-15 (Aug. 19, 1993), aff'd, No. CV-93-437 (Me. Super Ct., Ken. Cty., Apr. 8, 1994), aff'd, 655 A.2d 348 (Me. 1995) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-15 Issued: August 19, 1993 _______________________________________ ) MOUNTAIN VALLEY EDUCATION ASSOCIATION, ) ) Complainant, ) ) v. ) ) DECISION AND ORDER MSAD #43 BOARD OF DIRECTORS, ) Chairperson CAROLINE DEFIORE, ) Superintendent WILLIAM RICHARDS ) and ANNALEE Z. ROSENBLATT, ) ) Respondents. ) _______________________________________) This case was commenced on December 4, 1992, when the Mountain Valley Education Association ("Association") filed a prohibited practices complaint with the Maine Labor Relations Board ("Board") alleging that the MSAD #43 Board of Directors, Chairperson Caroline Defiore, Superintendent William Richards and Annalee Z. Rosenblatt (collectively "MSAD 43") had violated 26 M.R.S.A. 964(1)(A) and (E) (1988). More specifically, the Association alleges that MSAD 43 unlawfully disregarded multiple Association bargaining demands and unlawfully refused to implement an interest arbitrator's binding determination respecting duration of agreement. The complaint also avers that MSAD 43 unlawfully attempted to implement its "last best proposal" and unlawfully "attempted to enroll employees in one health insurance plan while implementing a lesser one in the contract." The Association requests the award of attorney fees and costs. MSAD 43's December 30, 1992, response answers that it "implemented its last best proposal concerning wages and medical insurance after exhausting the impasse procedures, including interest arbitration and further negotiations after each step of the procedure." MSAD 43 further answers that it "implemented all -1- other portions of the contract upon receipt of the arbitrator's award." On February 26, 1993, Board Chair Peter T. Dawson conducted a prehearing conference in this matter. Maine Teachers Associa- tion UniServ Director J. Donald Belleville represented the Association, and Labor Negotiator/Management Consultant Annalee Z. Rosenblatt represented MSAD 43. At prehearing, the parties agreed that the pleadings together with exhibits admitted at prehearing would constitute the entire record. The parties waived oral argument and agreed to a briefing schedule. Chair Dawson's March 3, 1993, Prehearing Conference Memorandum and Order is hereby incorporated in and made a part hereof. During the briefing period, the parties submitted additional exhibits and an agreement regarding certain portions of the pleadings. In response to an inquiry by Board staff regarding the precise contents of the record to be considered by the Board, the parties submitted a partial clarification of the record. The last of the parties' briefs was received on May 17, 1993, and on May 19, 1993, the final version of the parties' stipulations was filed with the Board. The Board, consisting of Chair Dawson, Employee Representative George W. Lambertson and Employer Repre- sentative Howard Reiche, Jr., met to deliberate the case on June 2, 1993, and decided, among other things, to request clarifi- cation of the wage increases implemented by MSAD 43. The parties responded to the request; the record was closed on July 20, 1993. JURISDICTION 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) (1988 & Supp. 1992). Neither party has challenged the Board's juris- diction. -2- STIPULATIONS The parties submitted the following stipulations: 1. Caroline Defiore is the current duly elected chairperson of the M.S.A.D. No. 43 Board of Directors. 2. William Richards is the current duly elected Superintendent of M.S.A.D. No. 43. 3. Annalee Z. Rosenblatt is employed by the Directors as Chief Negotiator and is the representative of the Directors. 4. The Association is the bargaining agent for the educational technicians in a bargaining unit covered by a con- tract between the Directors and the Association. 5. Vicki Amoroso is presently President of the Association. 6. Karen Hodsdon is, at all material times herein, the Chief Negotiator for the educational technicians. 7. Negotiations for a first contract agreement between the Association and the Directors have been in progress since June 30, 1990, when the Association sent its proposal to the Direc- tors. 8. The negotiations between the parties for this first contract has been long and arduous. 9. Rosenblatt met with Association representative Debra Stevens, an NEA intern from Massachusetts working under the direction of J. Donald Belleville, on September 7 and 10, 1990. The negotiating teams for both parties met for the first time on September 24, 1990, and again on October 2 and October 18, 1990. 10. On October 2, 1990, the parties signed groundrules for negotiations that provided, "The parties shall meet as mutually scheduled. Meetings will be scheduled in advance and several at -3- a time." These groundrules were signed by Ms. Rosenblatt on behalf of the Respondent. 11. At the first negotiating session, the Board presented to the Association a spread sheet representing current costs, including salary and benefits. The parties agreed that the Association would check the information and once it was correc- ted, it would remain the base cost for the purpose of the negoti- ations. At the next two or three sessions, the Association pro- vided corrections and clarifications. At the October 2, 1990, negotiations meeting, it was agreed the negotiations data was correct and would be the basis for costing all future proposals. Although such agreement was reached between Rosenblatt and Stevens, the parties had no idea the bargaining process would take so long. 12. The Complainant has had 6 representatives at different times during these negotiations as follows: Debra Stevens, NEA intern, September 7, 10, and 14. October 2, and 18, 1990. Stevens worked under the supervision of Belleville and he was present at some of the aforementioned meetings. J. Donald Belleville, MTA Affiliate Services Director, January 29, 1991, mediation session. Cheryl Lunde, MTA Affiliate Services Director, March 12, 1991, mediation session. Glen Williams, UniServ Director from New York, April 23, 1991, mediation session. J. Donald Belleville, June 27, 1991, October 23, and November 16, 1991, fact-finding session; December 23, 1991, negotiations session; May 18, 1992, arbitration hearing. Jessie Bennett, NEA intern, October 13, 1992, post- arbitration negotiations session. Bennett worked under the supervision of Belleville and he was present at some of the aforementioned meetings. Neither the Respondent nor mediator was advised of the substitute -4- representatives until the parties actually appeared at the session. The constant changes and substitutions delayed bargain- ing and reaching tentative agreements. 13. On October 22, 1990, the Association filed for mediation with the Maine Labor Relations Board. Joseph Stupak was appointed as mediator. 14. Three mediation sessions were held on January 29, March 12, and April 23, 1991. 15. On April 24, 1991, the Association filed for the appointment of a fact-finding panel with the Maine Labor Relations Board. 16. Fact finding could not be scheduled between June 27, 1991, and October 23, 1991, because of scheduling conflicts among the parties and the fact finders. 17. The Association made its original salary and medical insurance proposal, among others, in a document dated June 5, 1990, and did not modify either the medical insurance or salary proposal until the submission of its fact-finding brief, received by the Respondent June 21, 1991. The proposed increased cost of the salary proposal alone, as projected by the Respondent, for a one-year contract was 29.17 percent. 18. A fact-finding session was scheduled for June 27, 1991, before a panel which consisted of Harold L. Gosselin, Employer Representative, Charles R. Priest, Employee Representative, and Dr. Stanley Devino, Chairperson. Although the parties met, the hearing was cancelled due to the Chairperson's health-related unavailability. 19. On June 27, 1991, the first scheduled day of fact finding, J. Donald Belleville and Annalee Rosenblatt reached 10 tentative agreements from the issues that were the subject of -5- fact finding. 20. Subsequent to this date, almost each and every time Mr. Belleville attended the negotiations sessions and represented the Association, tentative agreements were reached and other issued were further narrowed. 21. A fact-finding session was scheduled for October 23, 1991. A fact-finding hearing was held on November 16, 1991. A report was issued dated November 26, 1991. 22. At the November 16, 1991, fact-finding session, the Complainant presented exhibits which presented proposed costs based on information that was different than what was agreed would be used, but, again, this resulted from the fact that the parties had no idea the bargaining process would take so long. 23. The Complainant continued to use this information at the arbitration hearing May 18, 1992. The Complainant also raised, for the first time, that the information concerning Ed. Tech. II's and Maine State Retirement was incorrect as presented by the Respondent. This statement required additional follow-up to the arbitration panel and in fact, the information presented by the Respondent was correct. The offering of this information by the Complainant at this late time was poised to make it appear the Respondent was misrepresenting the facts to the arbitration panel. Again, however, the parties had no idea the bargaining process would take so long. 24. On December 23, 1991, the parties met to discuss the fact finders' report. Several issues remained outstanding and the parties agreed to submit them to arbitration. 25. On May 18, 1992, a hearing was held before an arbitra- tion panel which consisted of Shawn C. Keenan, Esq., as the Association's Representative, David Plimpton, Esq., as the Directors' Representative, and Lawrence E. Katz, Esq., as -6- Chairperson. 26. The following issues were submitted to arbitration: Reduction-in-force (bumping rights); Work Day/Work Year (length of day/year and lunch period); Resignations; Sick Leave (amount, accumulation and family care); Other Paid Leaves; Holidays; Course Reimbursement; Health Insurance (plan, cost and eligibi- lity); Retirement Payment; Association Rights; Administrative Fee for Pay Deductions; Duration; and Wages. 27. J. Donald Belleville was not available to meet due to vacation and out-of-state commitments during most of the months of July and August, 1992. 28. Annalee Z. Rosenblatt was the agent for the Respondent during all times during these negotiations, but the Complainant bypassed her and contacted either the Superintendent or Board Chairman directly regarding the scheduling and progress of negotiations, to inquire about the Board's position on the arbitration report, and to report the Complainant's position on the arbitration report, despite the Complainant's knowledge that all meetings were scheduled by and through Ms. Rosenblatt and that Ms. Rosenblatt was and continues to be the designated agent of the Board for these negotiations. 29. An arbitrators' report was issued, dated July 9, 1992, in which the arbitrators made recommendations on wages, insurance and retirement payment, and made determinations of all other issues including a two-year duration of agreement. 30. On August 7, 1992, Karen Hodsdon sent a letter to Superintendent Richards indicating that the educational techni- cians had accepted the arbitrators' report by ratifying " . . . their contract as negotiated and arbitrated . . . " and requested the Directors' " . . . status concerning the contract." 31. Richards met with Amoroso on or about August 17, 1992, -7- concerning the issue of the bargaining unit seniority list among other issues. Amoroso spoke with Superintendent Richards concerning why there was a lack of action on the part of the Directors to get the contract settled. This meeting was not a part of the parties' formal collective bargaining negotiations; it constituted merely a query. 32. From time to time throughout the bargaining, drafts of tentative agreements to date were presented to the Complainant by the Respondent for review and correction as necessary, including to the fact-finding panel and the arbitration panel. By letter dated September 15, 1992, a draft of the proposed agreement was sent to the Complainant by the Respondent which included all tentative agreements to date and the binding portions of the arbitrator's award for review and correction by the Complainant. Along with this the Respondent sent a written last best proposal to the Complainant for review and comment. 33. In a letter dated August 28, 1992, to Chairperson Defiore, Vicki Amoroso requested a meeting to discuss the arbitration report. 34. In correspondence dated September 15, 1992, to J. Donald Belleville, Annalee Z. Rosenblatt enclosed " . . . a draft of the proposed collective bargaining agreement . . . " and a " . . . last best proposal . . . " on wages, medical insurance, sick leave (retirement payment), and duration. 35. On September 28, 1992, Vicki Amoroso sent a ten-day notice to Superintendent Richards to meet and negotiate the non- binding portions of the arbitrators' report. 36. In a letter dated October 1, 1992, to J. Donald Belleville, Annalee Z. Rosenblatt confirmed the date for a meeting between the parties. 37. Between the receipt of the arbitrators' report, on or -8- about July 13, 1992, and October 12, 1992, the Directors failed to meet with the Association's negotiating team in spite of several requests. 38. On October 13, 1992, the parties met to discuss the draft of the proposed contract and to discuss the Directors' "last best offer." The Directors did not make any firm propos- als, but the Association made some counterproposals and the retirement payment issue was resolved. 39. On October 13, 1992, the parties met to discuss the last best proposal of the Respondent. At this meeting the Complainant finally made several corrections and additions to the draft of the tentative agreements. The Complainant did not agree to the Respondent's last best proposal but made a proposal which the Respondent negotiating team agreed to present to the entire Board. The only differences in the proposals were as follows: Complainant: Blue Cross Blue Shield Major Medical UCR would be printed into the contract and paid at 100% for current enrollees, paid at 100% of the individual premium for new enrollee; grandfather current "double dippers" on medical insurance and the Respondent's language for all new enrollees on "double dippers." Respondent: Maine School Management Association Health Insurance Trust Plan III or a comparable plan, no "double dipping," selection of a better plan or additional family coverage at employee's expense; implement a section 125 to pay the premium difference; Board would contribute $144.12 per month for the individual coverage, $324.29 per month for 2 person coverage and $394.91 per month for family coverage; new enrollees $144.12 per month. Complainant: Salary effective July 1, 1991 - June 30, 1992, year 1 and .10 per hour more than the Respondent's proposal for year two. Respondent: Salary effective January 1, 1992 - June 30, 1992, year 1 and .10 per hour less than the Complainant's proposal for year two. -9- 40. During the October 13, 1992, meeting, the Association informed the Directors that the duration of agreement was a binding determination. 41. In a letter dated November 3,1992, to J. Donald Belleville, Annalee Z. Rosenblatt informed the Association of the Directors' "last best proposal . . ." which she was authorized to offer and implement. The "last best proposal" includes wages, medical insurance, sick leave (retirement payment), and duration of agreement. 42. By letter dated November 3, 1992, the Respondent modi- fied its last best proposal as follows: Same as listed in paragraph 14 above except for medical insurance which would be paid as follow: $158.25 per month for single coverage, $356.09 for 2 person coverage and $433.63 for family coverage. All new enrollees at $158.25 per month. 43. On November 3, 1992, the Association filed for mediation concerning wages, health insurance, and duration of agreement. 44. In the letter dated November 3, 1992, Annalee Z. Rosenblatt stated "[E]mployees will be provided with medical insurance enrollment forms so they can be covered effective December 1. It is hoped that the enrollment forms and Section 125 election will be sent to them in their paychecks this week. Because the current insurance plan is comparable to MSMA Plan III, no employee will be required to transfer from the current carrier at this time." 45. The Complainant filed again for mediation on November 4, 1992. Mediation has been scheduled for January 21, 1993. 46. On November 5, 1992, in a telephone conversation with Jesse Bennett, Jr., an intern working with J. Donald Belleville, Annalee Z. Rosenblatt clarified and confirmed that the educa- -10- tional technicians would get the current Blue Cross/Blue Shield insurance plan at MSMA Plan III rates and that the MSMA Plan III language would go into the contract. 47. On November 20, 1992, the Directors implemented their "last best proposal" on wages by including a wage increase in the employees' paychecks. 48. Insurance enrollment forms were distributed on or about November 23, 1992. 49. On November 23, 1992, the Directors implemented their "last best proposal" on insurance by informing employees that beginning December 1, 1992, they will begin contributing toward the cost of their insurance premium. Employees were informed what, if any, their share of the insurance premium costs would be effective December 1, 1992. 50. On November 23, 1992, the Directors implemented their "last best proposal" on insurance when employees were informed on or about November 23, 1992, that consistent with its last best proposal the District would no longer pay insurance premiums for employees covered by medical insurance somewhere else and that such would be effective December 1, 1992. 51. The Respondent implemented its last best proposal concerning wages and medical insurance after exhausting the dispute resolution procedures, including interest arbitration and further negotiations after each step of the procedure. The Respondent implemented all other portions of the contract upon receipt of the arbitrator's award. This included resolving a grievance in favor of the Complainant filed against action taken by the Respondent before receipt of the interest arbitration award. 52. The Complainant employees continue to be enrolled in the Maine Teachers Association Blue Cross Blue Shield, Major Medical -11- UCR Plan because the Respondent believes such plan is comparable to the Maine School Management Plan III. FINDINGS OF FACT Upon review of the exhibits stipulated by the parties as part of the record, the Board makes the following additional findings: 1. In 1989, when the Rumford School Department left School Union 25 and joined the Mexico schools in MSAD 43, each employer had both aides and assistants on their payrolls. Aides in Mexico were covered by a collective bargaining agreement that set their rates of pay and gave them fully paid health insurance. Aides in Rumford, who were covered by individual contracts only, were receiving a higher salary than aides in Mexico, but no paid health insurance. At the time of the merger, the combined group of aides was permitted to decide which contract(s) would apply to them pending negotiation of a new collective bargainiing agreement; they chose the lower pay and paid health insurance in the Mexico contract. 2. Neither group of assistants was covered by a collective bargaining agreement at the time of the merger. Under individual contracts, Mexico assistants were receiving paid health insurance and lower pay than Rumford assistants, who were not receiving paid health insurance. As a group, assistants opted for the higher pay and no health insurance coverage pending negotiation of a collective bargaining agreement. 3. The two groups -- aides and assistants -- were placed in one bargaining unit, a bargaining agent was elected, and negotia- tions began in June of 1990. 4. The interest arbitrators' binding determination, issued on July 9, 1992, imposed a two-year contract covering 1991-92 and 1992-93. -12- 5. After receipt of the arbitrators' report, MSAD 43 made a "last best proposal" to the Association on, among other things, wages and medical insurance. For aides, it 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 retroactive 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 employ- er) 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. 6. On November 28, 1992, MSAD 43 sent the Association a final copy of the new agreement between the parties. It included MSAD 43's last best proposals on wages, insurance and duration of agreement. DISCUSSION At issue in this case are three major questions: 1) whether the MPELRL permits a public employer to unilaterally implement its last best offer on wages, pensions and/or insurance once parties have reached impasse in contract negotiations; 2) if it does, whether the parties have reached a bona fide impasse in this case; and 3) whether MSAD 43 has violated its duty to bargain by refusing to implement a binding interest arbitration decision on duration of agreement. -13- Right to implement last best offer For mandatory subjects other than wages, pensions and insurance, the MPELRL requires parties who are unable to reach agreement to submit their dispute(s) to binding interest arbitra- tion. 26 M.R.S.A. 965(4) (1988).1 No such requirement exists for salaries, pensions and insurance: on these subjects, interest arbitrators make recommendations for settlement, not binding determinations. The MPELRL is silent as to how disputes on salaries, pensions and insurance are to be finally resolved.2 Since at least 1978, the Board has interpreted Maine's public sector collective bargaining statutes to permit an employer to implement its last best offer on wages, pensions and/or insurance once negotiations between the employer and the bargaining agent have reached a bona fide impasse. MSEA v. State of Maine, No. 78-23, 2 NPER 20-11024 (Me.L.R.B. July 15, 1978), aff'd sub nom. State of Maine v. MLRB, 413 A.2d 510 (Me. 1980) (bona fide impasse is one of four exceptions to unilateral change rule). The Association asks that we abandon this reading of the collective bargaining statutes, since the conditions laid out in Auburn Firefighters Association Local 797 v. City of Auburn, No. 89-01, 11 NPER ME-20003 (Me.L.R.B. Mar. 31, 1989) cannot be met. More specifically, recognizing the impasse doctrine in the public sector improperly terminates bargaining; absolves public employers from the duty to participate in good faith in the dispute resolution procedures contained in the collective bar- gaining statutes; and denigrates the bargaining agent, since public employees in Maine have no right to strike in response to _________________________ 1Maine's three other collective bargaining statutes contain parallel provisions. 2The economic weapons available to employers and employees in the private sector for breaking an impasse -- strikes and lockouts -- are not available. -14- the economic coercion implicit in the impasse doctrine. The Association also points to section 965(1)(C) of the MPELRL, which states that "neither side shall be compelled to agree to a pro- posal or be required to make a concession." While we recognize the frustrating position in which Maine's public employees find themselves, we find untenable the Associa- tion's suggestion that we abandon the impasse doctrine. As MSAD 43 points out, bargaining on salaries, pensions and insurance would never end. We believe that the Legislature excepted these subjects from binding arbitration not because it believed bar- gaining on these subjects should go on forever, but because of a judgment that public sector employers must ultimately have a larger measure of control over the major aspects of their budgets. This view is supported by section 965(2)(B) of the MPELRL, which requires participation in mediation when either party requests mediation services prior to arbitration, and by the 120-day rule for demanding negotiations over matters requiring the appropriation of money, found in section 965(1)(E). Nor can we accept the Association's argument regarding section 965(1)(C).3 The right of an employer, under the National Labor Relations Act ("NLRA"), to implement its last best offer at impasse is clear. NLRB v. Katz, 369 U.S. 736 (1962). Yet the NLRA contains language virtually identical to the language in section 965(1)(C).4 We must assume that the Maine Legislature was aware of these facts when it included section 965(1)(C) in the MPELRL. Had it intended to reject federal precedent regard- _________________________ 3As mentioned earlier, that provision states that "neither side shall be compelled to agree to a proposal or be required to make a concession." 4 29 U.S.C.A. 158(d) (1973 & Supp. 1993). This provision has been interpreted simply to prevent the National Labor Relations Board from imposing contract terms on a party as a remedy for a violation of the duty to bargain. H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970). -15- ing the impasse doctrine, it could have done so explicitly. Whether these parties reached impasse Negotiations for a first contract for the new aides and assistants' bargaining unit began in June of 1990. After several meetings, the Association filed for mediation on October 22, 1990. Three mediation sessions occurred. On April 24, 1991, the Association filed for fact finding. On the first day scheduled for fact finding, the parties reached ten tentative agreements on matters still in dispute. Negotiations between the parties continued, and a fact-finding report was issued on November 26, 1991. The parties met on December 23, 1991, to discuss the report. Several issues remained in dispute, and the parties agreed to submit them to arbitration. Among those issues were wages, health insurance (plan, cost and eligibility), retirement, and duration of agreement. An arbitration hearing was held on May 18, 1992, and the arbitrators' report was issued on July 9, 1992. The report included recommendations on wages, insurance and retirement pay- ments, and binding determinations on all other issues, including duration of agreement. The Association made informal inquiries regarding finaliza- tion of a contract in August of 1992. It also made several requests to meet. By letter dated September 15, 1992, MSAD 43 sent the Association a draft contract and a "last best proposal" on wages, medical insurance, retirement payment and duration of agreement. The offer on retirement was what the arbitrators had recommended. The offers on wages and medical insurance were both better than what MSAD 43 had previously offered, though in most respects not what the arbitrators had recommended. On September 28th, the president of the Association sent the superintendent of MSAD 43 a 10-day notice to bargain on the non-binding portions of the arbitrators' report. In a letter dated October 1, 1992, MSAD -16- 43 confirmed the date for a meeting between the parties. On October 13th, the parties met to discuss the letter. They were able to resolve the issue of retirement pay. At the same October 13th meeting, the Association made a counterproposal regarding medical insurance and wages. MSAD 43's negotiating team agreed to submit the counterproposal to the entire MSAD 43 Board of Directors. In response, the Board of Directors authorized its negotiating team to make a medical insurance offer that increased the caps for single, two-person and family coverage. That offer was made by letter dated November 3, 1992. In the same letter, MSAD 43 informed the Association that employees would be provided with medical insur- ance enrollment forms so that they could be covered as of Decem- ber 1, 1992. It also stated that employees currently enrolled in the MTA Blue Cross Blue Shield plan would not be required to transfer to the Maine School Management plan at that time, since SAD 43 considered the two plans to be comparable (MSAD 43's offer was to contribute to the MSM plan III or a comparable plan.) On November 3, 1992, the Association filed for mediation on wages, health insurance and duration of agreement. It filed for mediation again on November 4th. On November 20, 1992, MSAD 43 implemented its "last best proposal" on wages by including a wage increase in employees' paychecks. It implemented its "last best proposal" on health insurance on November 23rd by informing employees that effective December 1st, employee contributions to health insurance would begin. Employees were also notified of what, if any, their share would be. The notice also stated that as of December 1st, MSAD 43 would no longer pay premiums for employees covered by insurance elsewhere. Eligible employees continue to be enrolled in the MTA Blue Cross Blue Shield plan. In asserting that impasse has not occurred, the Association has not suggested that MSAD 43 began negotiations in June of 1990 with the intention of bargaining to impasse rather than reaching -17- agreement, or that it otherwise failed to bargain in good faith up to and through interest arbitration.5 In its brief, the Association asserts that the parties have not reached impasse in part because of its belief that the Board should abandon the impasse doctrine, and in part because of two alleged per se violations of the duty to bargain in good faith after arbitra- tion: failure to respond to a 10-day notice to bargain, and implementation of the employer's last best offer on wages and insurance after the Association had requested post-arbitration mediation. In its complaint, the Association more broadly alleges continued disregard of the Association's request for a meeting between July 13, 1992 and October 1, 1992, and enrollment of employees in one health insurance plan while implementing a lesser one in the parties' contract. Neither of these last two allegations is addressed in the Association's brief, although the parties stipulated to facts that relate to these two allegations. a. failure to respond to requests to bargain In connection with recommendations and findings made in interest arbitration on the subjects of salaries, pensions and insurance, section 965(4) of the MPELRL states that the arbitra- tors may in their discretion make them public. Either party may do the same, "if agreement is not reached with respect to such findings and recommendations within 10 days after their receipt from the arbitrators." Thus, the statute contemplates that on salaries, pensions and insurance, the parties will participate in further negotiations for some reasonable period of time after receiving the arbitrators' report, a reasonable period being no less than ten days. _________________________ 5Accordingly, the factors for determining whether an impasse has been reached that are cited in Auburn Firefighters Associ- ation, Local 797 v. Valente, No. 87-19, 10 NPER ME-18017 (Me.L.R.B. Sept. 11, 1987), are irrelevant to this case and will not be addressed. -18- The parties have stipulated that there were no negotiation meetings between July 13, 1992 and October 12, 1992, in spite of several requests by the Association that the parties meet. They have also stipulated that those requests to bargain were directed to either the superintendent or the chairman of the MSAD 43 Board of Directors and not to the person designated as MSAD 43's chief negotiator. Furthermore, the Association did not send MSAD 43 a formal, 10-day notice to bargain until September 28, 1992.6 Although that notice too was sent to the superintendent rather than the chief negotiator, by October 1st the chief negotiator had sent the Association a letter confirming the date that had been agreed to for a meeting (October 13th). Since one of the parties' ground rules for negotiation stated, "The parties shall meet as mutually scheduled. Meetings will be scheduled in advance and several at a time," and the Association agreed to the date of October 13th, we decline to find that MSAD 43 committed a per se violation of the duty to bargain. Even if we were to find that a technical violation occurred, the violation would not warrant a further finding that MSAD 43 had not fulfilled its duty to continue negotiations for a reason- able time after receiving the arbitrators' recommendations. On September 15th it augmented its offer on wages and health insur- ance. On November 3rd, it further improved its health insurance offer in response to the meeting between the parties on October 13th. We find that these efforts to reach settlement satisfied the requirements of section 965(4). _________________________ 6Section 965(1)(B) of the MPELRL imposes the following requirement in connection with the duty to bargain: To meet within 10 days after receipt of written notice from the other party requesting a meeting for collec- tive bargaining purposes, provided the parties have not otherwise agreed in a written contract. -19- b. implementation after mediation requested The second per se violation of the duty to bargain alleged by the Association is implementation of MSAD 43's last best offer after the Association had requested mediation. The mediation provisions of the MPELRL do not support the Association's position. As we pointed out earlier in another context, section 965(2)(B) of the MPELRL requires participation in mediation when either party requests it prior to arbitration. While we would certainly encourage parties who wish to use the services of a mediator to make one last effort to reach agreement after interest arbitration to do so, it cannot be required. Failure to implement arbitrators' determination on duration of agreement The third major question raised by the Association is whether MSAD 43 violated its duty to bargain by failing to implement the binding decision by the arbitrators that the parties' new contract be for a two-year period covering 1991-92 and 1992-93. We find that it did. Since the arbitrators' award was issued, MSAD 43 has con- sistently ignored the duration-of-agreement aspect of the award -- making a "last best proposal" on duration in its September 15, 1992 letter to the Association (the offer being that the contract would be effective on the date of execution and expire on June 30, 1993); making the same "last best proposal" in its November 3rd letter; and including that last best proposal in a copy of the new contract mailed to the Association on November 28th. While the parties may agree to something other than what the interest arbitrators decided, neither party may unilaterally make changes in the award. MSAD 43 has defended its actions by pointing to Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279 (Me. 1979). In that case, the Law Court, ruling that the Board -20- could not impose a contract provision requiring retroactive wage increases, noted that such a wage increase could also not be the subject of binding arbitration. The MPELRL itself makes that clear. 26 M.R.S.A. 965(4) (1988). If the interest arbitrators cannot make a binding determina- tion on wages, MSAD 43 argues, they cannot make one on either pensions or insurance. In addition, MSAD 43 points out, some aspects of the contract cannot be implemented retroactively -- it offers as examples medical insurance coverage and bereavement leave day opportunities that have passed. Finally, the employer points out, it did implement wage increases retroactive to January 1, 1992, consistent with its last best offer on wages. Most of the problem in connection with the duration-of- agreement issue appears to us to stem from MSAD 43's mistaken belief that its last best offer on wages and medical insurance must be, or should be, incorporated into the parties' contract. A contract, by its very nature, contains agreements reached by the parties. The Association cannot be required by MSAD 43 to sign a contract containing something it has not agreed to. Nor can MSAD 43 impose its last best offer on wages and insurance for a fixed period into the future, as the contract would do.7 Likewise, MSAD 43 cannot be required by the interest arbitration panel to extend its last best offer on wages further back in time than the offer itself contemplated. It did not do so, because the contract does not cover this issue. When MSAD 43 implemented its last best offer on wages and health insurance, it simply made two lawful unilateral changes in terms and conditions of employment (lawful under the "impasse" _________________________ 7Consequently, the statements in MSAD 43's September 15th and November 3rd "last best offer" letters that its offers on wages and insurance would be effective through June 30, 1993, were without effect. -21- exception to the unilateral change rule). Those two changes are reflected in MSAD 43's correspondence to the Association dated November 3, 1992, and no further memorialization is necessary. The new wage plan and medical insurance plan constitute the new status quo from which the parties will start any new negotia- tions on these subjects.8 In response to MSAD 43's complaint that some aspects of the contract are not amenable to retroactive application, we must point out that that is commonly the case in retroactive con- tracts. The parties should simply make those portions of the contract retroactive where they can reasonably do so. We are sure that the parties are capable of resolving this problem. (Retroactive health insurance is not an issue, since health insurance is not covered by the contract.) We also wish to point out that sections 965(4) and 972 of the MPELRL make it clear that binding interest arbitration determinations are reviewable in Superior Court. Apparently MSAD 43 did not appeal the interest arbitration award, and this Board has no authority to make changes in it, even if the arbitrators had gone beyond their authority. Section 965(1)(E) of the MPELRL includes in the duty to negotiate in good faith the duty to participate in interest _________________________ 8In the normal situation, parties sign a contract that extends for some period into the future, even if it contains a substantial retroactive component due to lengthy negotiations. Where the employer has implemented its last best offer on subjects not agreed to in the contract (wages, pensions and/or insurance), the bargaining agent would be free to initiate new negotiations on those subjects at any time, subject, of course, to the 120-day rule in section 965(1)(E). This is so because those matters, not being in the contract, are not subject to the duration-of-agreement provision in the contract. We are not faced with that situation here, since the contract term imposed by the interest arbitrators in this case expired on June 30, 1993. Presumably the parties are already in negotiations for a new contract. -22- arbitration. For that requirement to be meaningful, it must include the requirement to implement arbitrators' binding deter- minations unless overturned on appeal. Accordingly, we find that MSAD 43, by its failure to implement the duration-of-agreement arbitation determination, has failed to bargain in good faith in violation of section 964(1)(A) and (E) of the MPELRL. We will order it to cease and desist from failing to implement binding arbitration awards in the future, and to take the affirmative action of implementing the one at issue here. Finally, we will briefly address the Association's charge that MSAD 43 has enrolled employees in one health insurance plan while implementing a lesser one in the parties' contract. (Employees are currently enrolled in the MTA Blue Cross Blue Shield plan, while in MSAD 43's last best offer, it offered to contribute to the Maine School Management Plan III or a compar- able plan.) We find no violation for two reasons. As we have already pointed out, health insurance is not covered by the contract because it is not something on which the parties were able to reach agreement. More important, MSAD 43 has made the MTA plan part of its last best offer by its statement in its November 3rd "offer" letter that "the current insurance plan is comparable." Its implementation of the offer was consistent with this statement, since employees already enrolled in the MTA plan were not required to transfer to the Maine School Management plan. ORDER On the basis of the foregoing stipulations, additional findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(5) (1988 & Supp. 1992), it is hereby ORDERED: -23- 1. That MSAD 43 and its agents and representatives shall: a. Cease and desist from refusing to bargain in good faith, and from interfering with, restraining and coercing members of the teacher aides and assis- tants' bargaining unit by refusing to implement binding interest arbitration awards. b. Take the following affirmative action that is necessary to effectuate the policies of the MPELRL: i. Implement the binding interest arbitration award issued on July 9, 1992, by including and applying a duration-of-agreement pro- vision in the parties' contract that is consistent with that award. 2. That the Association's allegations regarding violation of section 965(1)(A), (B), (C) and (D) are dismissed. 3. That the Association's request for attorney's fees and costs is denied. Dated at Augusta, Maine, this 19th day of August, 1993. The parties are hereby advised /s/___________________________ of their right, pursuant to Peter T. Dawson 26 M.R.S.A. 968(5)(F) (Supp. Chair 1992), to seek review of this decision and order by the Superior Court. To initiate such a review, an appealing /s/___________________________ party must file a complaint Howard Reiche, Jr. with the Superior Court within Employer Representative fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements /s/___________________________ of Rule 80C of the Maine Rules George W. Lambertson of Civil Procedure. Employee Representative -24-