Case No. 02-13
                                      Issued:  November 27, 2002

MEA/NEA,                        )
                   Complainant, )        INTERIM DECISION AND
                                )        ORDER ON APPEAL OF
          v.                    )        EXECUTIVE DIRECTOR'S
                                )        PARTIAL DISMISSAL OF    
                   Respondent.  )

     The MSAD #46 Education Association ("Association") filed
this prohibited practice complaint with the Maine Labor Relations
Board ("Board") on March 13, 2002.  The Association alleges that
the MSAD #46 Board of Directors ("Employer") violated the
Municipal Public Employees Labor Relations Law ("Act"), 26
M.R.S.A. 979-C(1)(A), (B) and (E), by opposing full retro-
activity of proposed wage increases and by making various
statements during the parties' contract negotiations.  The
Association is represented by Joseph A. Stupak, Jr., and the
Employer is represented by S. Campbell Badger, Esq.
     In disposing of a related prohibited practice case between
the same parties (case No. 02-09), the Board permitted the
Association to amend the current complaint, which it did on 
July 18, 2002.  The Employer filed a response and a motion to
dismiss the amended complaint on August 14, 2002.  In response to
a letter from the Executive Director identifying insufficiencies
in the complaint, the Association filed a second amended
complaint on September 16, 2002.  On October 9, 2002, the
Executive Director notified the complainant that portions of the
complaint were not sufficient and would therefore be dismissed. 
On October 24, 2002, the Association filed with the Board a 


motion for review of Executive Director's partial dismissal of
the complaint.  
     In accordance with Board Rule Chapter 12, 8(3), the Board
has "examined the complaint as it existed when summarily
dismissed in light of the assertions contained in the motion." 
The Board hereby affirms the Executive Director's dismissal of
the regressive bargaining charge and the discrimination charge
but reinstates the charge alleging interference, restraint or
coercion in violation of section 964(1)(A).

     The Act authorizes the Executive Director to dismiss a pro-
hibited practice complaint if the facts as alleged "do not, as a
matter of law, constitute a violation."  26 M.R.S.A. 968(5)(B). 
The applicable standard used in ruling on sufficiency is the same
as ruling on a motion to dismiss for failure to state a claim
upon which relief may be granted.  In both cases, the Executive
Director (and the Board) must treat the material allegations of
the complaint as true and must consider the complaint in the
light most favorable to the complainant to determine whether it
alleges facts sufficient to state a claim for relief.  See, e.g.,
Buzzell, Wasson and MSEA v. State of Maine, No. 96-14 (MLRB 
Sept. 22, 1997), citing Brown v. MSEA, 690 A.2d 956, 958 (Me.
1997).  When the allegations in the complaint are more than
simply factual allegations but are legal conclusions, however, we
are not bound to accept those legal conclusions as true.  See,
Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994).  
     At the heart of this case is the Employer's bargaining
position that it would not agree to retroactivity of its wage
proposal for any period greater than six weeks prior to the 
ratification of an agreement.  The Association alleges that this
bargaining position constitutes regressive bargaining and is a 


failure to negotiate in good faith.[fn]1  The thrust of the
Association's argument was presented in its memo on this appeal:
     A proposal by an employer that reduces the length of
     time over which wage increases will be effective
     reduces the value and benefit of the proposed wage
     increase as surely as would a proposal to reduce the
     amount of the increase.  Proposals, like those made
     persistently by the Respondent, that wage increases
     should be effective only at later and later dates, are
     inherently regressive. 

     The Association is correct in stating that the issue of
retroactivity is a mandatory subject of bargaining.  Auburn
Firefighters Assoc. v. Morrison, No. 83-10, at 8 (March 9, 1983). 
The Association's argument must fail for precisely this reason. 
By arguing that failure to agree to full retroactivity of wage
increases is inherently regressive and therefore a failure to
bargain in good faith, the Association is essentially saying that
full retroactivity is required.  If it is a mandatory subject of
bargaining, it must be subject to bargaining.  One cannot call
retroactivity a mandatory subject of bargaining and simultaneous-
ly argue that anything but full retroactivity constitutes a
failure to bargain in good faith.  The Association's position has
the effect of removing retroactivity from the bargaining table
entirely.  We do not agree that the Employer's position on
retroactivity is regressive.
     We agree with the Association that the purpose of the
complaint is to provide fair notice of the claim.  Even if all 

     1 We note that the factual allegations in the complaint show that
the Employer's position on the retroactivity issue did not move in a
regressive manner.  Paragraph 21 of the complaint alleges the
Respondent's position in its fact finding brief (sometime after 
Oct. 30, 2001) was no retroactivity.  Paragraphs 26, 31, 35 and 36 
of the complaint allege that the Respondent's position was no
retroactivity beyond six weeks prior to the ratification of the
collective bargaining agreement.  The Association's argument is
clearly not centered on the movement of the Respondent's position, 
but the allegedly "regressive" nature of the position itself.


the facts alleged in the complaint are true, however, there must
be a viable claim for which relief can be granted.  See, e.g.,
Diva's, Inc. v. City of Bangor, 176 F.Supp.2d 30, 33 (D. Me.
2001) (Court does not accept plaintiff's unsupported inter-
pretations of law), Berner v. Delahanty, 129 F.3d 20, 25 (1st
Cir. 1997) (Must allege facts necessary for recovery "under some
actionable legal theory").  The Executive Director is not auto-
matically precluded from dismissing a claim on grounds of
insufficiency just because the legal theory of the claim is
"novel."  If a novel claim is dismissed, our rules provide for a
review of such an action by the full Board, as in the present
case.[fn]2  The bottom line of the matter is that if the legal
claim is not itself viable, there is no point in going to hearing
because no set of facts will support that claim. 
     As we stated above, even if the allegation regarding the
Employer's bargaining position opposing full retroactivity were
true, it is not regressive bargaining and therefore is not, in
itself, a violation of the duty to bargain in good faith.  We
agree with the Executive Director's decision dismissing that
portion of the complaint alleging that the employer engaged in
regressive bargaining, thereby violating its duty to bargain in
good faith.  We note, however, that the portion of the complaint
alleging a failure to bargain in good faith was not dismissed and
will proceed to hearing.  The Association is free to introduce
evidence of the employer's bargaining positions on all subjects,
including retroactivity, to support its case on that count.
     The Association also appeals the Executive Director's
dismissal of the 964(1)(B) claim.  Section 964(1)(B) prohibits
employers from "encouraging or discouraging membership in any 

     2 The Executive Director's decision to dismiss does not bind us
in any way, just as an Executive Director's decision that a claim is
sufficient does not affect our decision on a motion to dismiss prior
to hearing.

employee organization by discrimination in regard to hire or
tenure of employment or any term or condition of employment." 
The Executive Director noted that the complaint does not contain
any factual allegation of disparate treatment of or discrimin-
ation against employees on the basis of their union activities. 
The Association argues to the Board that the disparate treatment
or retaliation occurred by withholding wage increases from all of
the bargaining unit employees.  The problem with this is that the
employer is not permitted to grant wage increases during
collective bargaining.  See, Lane v. Board of Directors of
M.S.A.D. No. 8, 447 A.2d 806, 809-810 (Me. 1982), Board of
Trustees of University of Maine v. Associated COLT Staff and
MLRB, 659 A.2d 842, 844 (Me. 1995).  The employer is required to
maintain the status quo until the parties have reached an
agreement or are at a bona fide impasse.  Mountain Valley Educ.
Ass'n v. MSAD No. 43 and MLRB, 655 A.2d 348, 352 (Me. 1995). 
Making a unilateral change in wages would be a violation of the
duty to bargain with the union.  Id.  In this case, the Employer
was not withholding anything because the parties had not come to
an agreement yet.  
     The Association attempts to dress the Employer's position on
retroactivity as a discrimination claim.  The Association argues
on appeal that:

     . . . the Respondent's rejection of this settlement
     overture,[fn]3 and its continued withholding of wage
     increases that were otherwise agreed to by the
     Association, demonstrates that the withholding of wage
     increases is not the product of a good faith bargaining
     conflict, but an act of discrimination for which the
     Respondent is solely responsible.


     3 The Association's appeal memo goes beyond the allegations
contained in the complaint by stating that the Association was willing
to agree to the Employer's proposals if the Employer would provide
full retroactivity.



Calling it discrimination does not make it so.  These factual
allegations may support a claim that the Employer did not bargain
in good faith, but they do not present a viable claim of
discrimination under 964(1)(B).   
     Finally, the Association appeals the Executive Director's
dismissal of that portion of the complaint that alleges that
certain comments made to members of the Association's bargaining
team violated section 964(1)(A).  Section 964(1)(A) prohibits an
employer from "interfering with, restraining or coercing
employees in the exercise of the rights guaranteed in section
963."  The complaint itself cited the factual allegations
contained in paragraphs 18 and 19 as the basis for the alleged
(1)(A) violation.  The Executive Director looked at those two
paragraphs and reasoned that they were of the same genre as the
comments addressed in the related case No. 02-09 and were not
sufficient to state a claim of unlawful interference, restraint
or coercion.  
     On appeal the Association argues that the Employer's
statement that the union should accept the Employer's position
"for the same reason he gave his children -because I said so" is
more than merely disparaging but is "antithetical" to the
purposes of the Act.  We do not agree that, if proven, this
comment alone would constitute a (1)(A) violation.  Given the
totality of the conduct alleged to have occurred in this case,
however, we cannot dismiss the possibility that the Association
could present evidence to support its contention that the
Employer's continual use of put-downs and demeaning, sarcastic
remarks directed at the bargaining team could constitute a (1)(A)
violation.  It is conceivable that an employer's treatment of the
bargaining agent could be of such a nature as to constitute
interference with the employees' right to engage in the
collective bargaining process, irrespective of whether the
employer has also violated its duty to bargain in good faith.   


As we noted in case No. 02-09, we had previously held in
Jefferson Teachers Association that arrogant and unhelpful
comments during negotiations were not an independent section
964(1)(A) violation.  No. 02-09 at 10, citing Jefferson Teachers
Assoc. v. Jefferson School Committee, No. 96-24, at 27 (Aug. 25,
1997).  In that same case, we also said:

     . . . We hesitate to qualify or quantify acceptable
     commentary at the bargaining table; in some cases,
     depending on the circumstances, it may cross the
     threshold . . . .
Id., at 27.

We will not dismiss this interference claim at this stage because
the Association may be able to prove that the Employer has, in
fact, crossed the threshold.

     On the basis of the foregoing assumptions of fact and
discussion and pursuant to the provisions of 26 M.R.S.A.
968(5)(B), it is hereby ORDERED:

     1.   That the portion of the complaint alleging a
violation of 26 M.R.S.A. 964(1)(B) is dismissed.

     2.   That the portion of the complaint alleging that 
          the Employer has engaged in regressive bargaining       
          thereby violating 26 M.R.S.A. 964(1)(E) is 

     3.   That the portions of the complaint alleging a 
          failure to bargain in good faith in violation of 
          26 M.R.S.A. 964(1)(E) and (1)(A) should proceed 
          to hearing.
     4.   That the portions of the complaint alleging the         
          Employer's statements and treatment of the 
          bargaining agent interfere with, restrain and 
          coerce employees in the exercise of their rights 
          in violation of 26 M.R.S.A. 964(1)(A) should 
          proceed to hearing.


     5.   The Executive Director shall, in the normal 
          course of business, schedule a prehearing 
          conference and evidentiary hearing on the merits 
          of the Association's complaint.
Dated at Augusta, Maine, this 27th day of November, 2002.

                              MAINE LABOR RELATIONS BOARD

                              Peter T. Dawson              

                              Karl Dornish, Jr.                
                              Employer Representative

                              Wayne W. Whitney         
                              Alternate Employee Representative