STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 05-07
Issued: October 12, 2005
__________________________________
)
MSAD #46 Education Association/ )
MEA/NEA, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MSAD #46 Board of Directors, )
)
Respondent. )
__________________________________)
On November 24, 2004, the MSAD #46 Education Association
("Association") filed a complaint alleging the MSAD #46 Board
of Directors ("Board" or "Employer") refused to bargain in
violation of 964(1)(E) and (A) by its conduct in negotiating
under a reopener provision. The Board filed its response on
December 13, 2004. The questions presented in this case are
whether the Employer had a statutory duty to bargain, whether the
Employer failed to bargain in good faith, and whether a zipper
clause is a mandatory or permissive subject of bargaining.
PROCEDURAL BACKGROUND
In its response to the complaint, the Employer asserted
numerous affirmative defenses including estoppel and waiver.
On December 16, 2004, the executive director of the Maine Labor
Relations Board ("Labor Board") dismissed the complaint on the
ground that the Association had waived the statutory right to
demand mid-term bargaining and therefore the Employer had no duty
to bargain. The Association filed its appeal of the executive
director's dismissal on January 14, 2005. The Labor Board
considered the Association's appeal on February 3, 2005, and,
after considering the briefs of the parties, concluded that the
complaint should be reinstated. A prehearing conference was
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conducted by Labor Board Chair Peter T. Dawson on March 21, 2005,
and the evidentiary hearing was held on May 4, 2005. The MSAD
#46 Education Association was represented by Joseph A. Stupak,
Jr., and the MSAD #46 Board of Directors was represented by S.
Campbell Badger, Esq. Chair Dawson presided over the hearing,
with Employer Representative Karl Dornish, Jr., and Employee
Representative Robert L. Piccone. The parties were given full
opportunity to examine and cross-examine witnesses and to intro-
duce documentary evidence. Briefs were filed by all parties, the
last of which was received on July 8, 2005. The Labor Board
deliberated this matter on August 3, 2005.
JURISDICTION
The MSAD #46 Board of Directors is a public employer within
the meaning of 26 M.R.S.A. 962(7) and the MSAD #46 Education
Association is a bargaining agent within the meaning of 26
M.R.S.A. 962(2) at all times relevant to this complaint. The
jurisdiction of the Board to render a decision and order lies in
26 M.R.S.A. 968(5).
FINDINGS OF FACT
1. The MSAD #46 Education Association represents the teachers'
bargaining unit and has had a bargaining relationship with
the Employer, the MSAD #46 Board of Directors, for many
years.
2. The complainant's first witness, Mr. Ted Nokes, was a member
of the negotiating team during the period in question and
became the Association's chief negotiator in the fall of
2004. The Association's second witness, Ms. Sharon Imbert,
was formerly the Association's president and was the
Association's note taker for the entire period. Both
witnesses stated that they would need to rely on the written
notes to recall details and dates of the meetings, most of
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which were held two to three years prior to the Labor Board
hearing.
3. The chief negotiator for the Board of Directors, Mr. Arthur
Jette, had been a member of the Board since 1995. Mr. Jette
had previously served as an officer and negotiator for the
Machinists Union Local Lodge 1696 at White Consolidated
Industries and its successor for over 25 years. Mr. Jette
also stated that he needed to rely on the negotiating notes
to recall details and dates of meetings.
4. In the mid-1990's, the voters in the school district had
rejected the school budget referenda seven times. Mr. Jette
stated that there was a citizen panel created that gave a
list of recommendations to the Board of Directors through
its chair which included the dismantling of the entire
health and dental insurance plans. The Board chose not to
take that route and instead embarked on a cost share so that
the Board would not continue to be paying 100 percent of
health insurance premiums. The stated target was to have
employees pay 20 percent of the premium. This decision was
based on actuarial studies showing that when people are
asked to contribute 20 percent they start making different
choices about what plan they purchase.
5. In the 1996 negotiations, the Board stated its goal of
achieving an 80/20 premium cost share. The result of the
1996 negotiations was that the cost share moved to 90/10.
Again in 1999, the Board stated its goal of an 80/20 cost
share but was unsuccessful. There was a provision in the
1999-2002 collective bargaining agreement that if in any
year the increase in cost of health insurance exceeded 10
percent, the parties would meet and decide whether or not to
share the amount of the increase exceeding 10 percent. As a
result of that provision, when the parties were negotiating
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the successor agreement to cover 2002-2005, the Board was
paying 87 percent of the premium and the employees were
paying 13 percent.
6. The 1999-2002 collective bargaining agreement reflected the
fact that employees were offered two choices of health
insurance plans. The premium cost share was based on the
more expensive of the two plans offered, and that dollar
amount was contributed toward the less expensive option for
those employees choosing that plan.
7. The Board and the Association successfully completed a round
of interest-based negotiations in 1996 and again in 1999.
Mr. Jette and the chief negotiator for the union at the
time, Mr. Fred Cookson, decided to continue the same process
for the 2002 negotiations, and worked together to bring the
other team members up to speed on the process through
workshops. Interest-based negotiations is a problem-solving
approach to negotiations where the parties identify issues
and interests and brainstorm possible solutions to those
problems. In some respects, interest-based bargaining
involves putting all of one's cards on the table at the
outset rather than holding them close to the vest for
tactical advantage, as is often done in traditional
bargaining.
8. Mr. Jette and the superintendent met with the Board of
Directors three or four times prior to the start of
negotiations to discuss issues like comparative salaries.
Mr. Jette testified that he was directed by the Board to
hold the combined costs of salaries and health insurance
from increasing more than 5 percent. With respect to the
sharing of costs for the health insurance premiums,
Mr. Jette said the Board's goal was to have an 80/20 cost
sharing agreement, as they had with the other bargaining
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units. From the start, the Board did not want to consider
salaries and health insurance separately, but as two
connected items.
NEGOTIATIONS FOR 2002-2005 COLLECTIVE BARGAINING AGREEMENT
9. At the parties' initial meeting on February 8, 2002, they
established their negotiating ground rules and standards for
negotiations. Each side's notes of this session indicated
that one of the ground rules was "In writing as soon as
possible." Although not specified in the ground rules, the
practice during negotiations was for the superintendent to
prepare notes of each meeting and distribute them to both
teams for review at the start of the next meeting.
10. After settling on ground rules and standards on February 8,
the parties went on to identify issues and the various
interests affected by those issues. During the first three
or four negotiating sessions in February and March of 2002,
the parties brainstormed potential solutions to those issues
and problems. As those issues were discussed, some items
were "TA'd," others were "OK'd,"[fn]1 and other items were
tabled for consideration later. By mid-March, the parties
had TA'd or OK'd a large majority of the two dozen or so
issues identified.
11. The zipper clause in the preceding collective bargaining
agreement is part of Article III, which stated:
ARTICLE III GROUND RULES
A. The Board agrees to begin negotiations with the
Association in executive session pursuant to State of
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1 To "TA" means to come to a tentative agreement. To "OK" means
that the parties agreed that a provision in the contract was not
necessary or appropriate.
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Maine Public Law under Chapter 424. Any agreement so
negotiated and ratified by both parties shall apply to
all teachers, be reduced to writing, be adopted by the
Board, and signed by the Board and the Association.
The parties hereto agree that the signed agreement
shall be accepted as written notice for collective
bargaining in the future fiscal years as stipulated
under State of Maine Public Law Chapter 9-A, Title 26.
B. This Agreement incorporates the entire under-
standing of the parties on all matters which were or
could have been the subject of negotiations. During
the term of the Agreement, neither party shall be
required to negotiate with respect to any such matter
whether or not covered by this Agreement and whether or
not within the knowledge or contemplation of either or
both of the parties at the time they negotiated or
executed this Agreement.
12. With respect to the zipper clause, the Association's notes
from the March 11, 2002, negotiating session state:
Article 3B-Zipper Clause. Is this needed?- What purpose
does it serve? Interests - 1. Contrary to interest-
based bargaining (meetings for understanding & problem
solving throughout term of agreement); 2. What are
legal ramifications of Article 3A. Hold for legal
advice 5:50 pm.
Article 3A - eliminate? How does this affect the
Board's right to bargain with us? If we eliminate, do
they need to bargain or just mandate? . . . Does
removing zipper clause open up whole contract??
13. The Employer's notes for the March 11, 2002, negotiating
session regarding the zipper clause state:
Is this needed? What purpose does it serve?
Interests- Doesn't fit the current practices (i.e.
meetings for understanding and problem solving
throughout term of agreement). What are legal
ramifications of Articles 3A and 3B.
It was agreed to put issue on hold at 5:45 PM.
14. The Employer's notes for the March 19, 2002, session state:
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Association stated that they had researched this item
and determined that both 3A and 3B could legally be
removed from the contract. Board stated that they were
not ready to remove article from contract because the
zipper clause in effect closes items negotiated in the
contract and that one side can not force the other side
to open them before the end of the contract.
15. The Association's notes for the March 19, 2002, session
state:
Fred [Cookson] it's okay to remove 3A - no legal
ramification.
Art [Jette] - "board" not prepared to remove 3B -
haven't discussed the ramifications of removal with the
rest of the Board.
16. On March 19, 2002, the parties first discussed health
insurance, identified as Issue #25. They identified
interests and brainstormed options. The options listed on
the Association's notes were:
100% coverage Choice plus up to (& including) family
Maintain what we have 90% Dist./10% teacher cost share
80% Dist/20% of current plan
Different ins. provider and cost share
Salary in lieu of
Modify 125 plan to increase benefits
Cap districts participation
The Employer's notes of the options listed was essentially
the same, but also included "% increase health and salary
combined." The parties discussed cost comparisons between
Anthem Standard plan, Anthem Choice Plus, and a couple of
plans offered by Aetna.
17. At the March 27, 2002, negotiating session, after consider-
ing more information on insurance cost comparisons, the
Association indicated that Anthem was its carrier of choice.
Mr. Jette shared with the Association that he had the
Board's authority to negotiate a combined salary and health
insurance increase of up to 5 percent. He said the Board
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wanted to emphasize salaries more than health insurance, as
some other benefits were based on earnings and there is
favorable tax treatment of premium contributions. The
Employer's proposal of an 80/20 premium cost sharing was
presented for consideration. Various cost projections were
handed out based on projected insurance increases of 20
percent and 25 percent.
18. At the April 3, 2002, meeting, the Association made a wage
proposal to add $1,000 to base salaries in each of the first
two years, to increase salaries by 3 percent in the third
year, and to add a step to the flat step 13 in the second
year and to the flat step 15 in the third year. There are
no Association notes for the April 3, 2002, meeting and no
indication that this proposal was made in writing. The
Employer's notes for the April 3, 2002, meeting indicate
that Sharon Imbert, the Association's note taker, was
present.
19. At the next meeting on April 17, 2002, Mr. Jette reported
that the Association's salary proposal alone resulted in a 4
percent increase. He indicated that to keep within the 5
percent figure, the health insurance would have to be a
75/25 cost share. The Board made a one-year proposal of a
3.5 percent salary increase with a health insurance cost
share of 80/20 based on a projected premium increase of 18
percent. After caucusing, the Association responded that
while the 3.5 percent increase to salary was possible, they
were not comfortable trying to sell the 80/20 cost share to
their membership. When the Board stated that they could not
go above an aggregate increase of 5 percent, the Association
caucused again and said they would present just the salary
and health proposal to their members to get some reactions.
20. At the May 2, 2002, meeting, the Association again stated
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that they needed to get some feedback from their membership.
The Association indicated they could not move from the 87/13
cost share then in effect. Mr. Jette stated that the Board
was adamant about staying within the 5 percent aggregate
increase.
21. During the June 6, 2002, meeting, the Association's chief
negotiator stated that the members were not interested in a
5 percent cap and they viewed insurance and salary
separately and did not like them lumped together. After
caucusing, Mr. Jette said their offer already went beyond
the 5 percent increase set by the Board. The Board's
position was that the two items had to be considered
together. The parties agreed to switch to traditional
bargaining at this point.
22. On June 17, 2002, the Association proposed a two-tiered
health insurance plan with an employer contribution of 90,
87 and 85 percent of the Standard plan for current employees
over the three years and 90, 87 and 85 percent of the Choice
Plus plan (a less expensive plan) for new employees. The
proposal called for base salary increases of 3 1/4 percent, 3
percent and 3 percent over the three years, removing the
flat step at step 13 in the second year and removing the
flat step at step 15 in the third year by adding the
standard step increment at these steps. The Board received
the proposal and said they would review it, do some "number
crunching," and return with a three-year proposal at the
next meeting.
23. On June 20, 2002, the Board said they would not accept the
Association's proposal of June 17. The Board presented a
two-year proposal with a 2.6 percent salary increase
contingent on a 85/15 cost share of the Standard plan in
2002-2003, and a 1.6 percent salary increase contingent on a
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80/20 cost share of the Standard plan in 2003-2004. The
Association argued in support of its own proposal saying
that it represented a substantial savings because one of the
tiers was based on Choice Plus. The Association argued that
the district is moving from being one of the highest to one
of the lowest compared to other school districts. The Board
argued that Dexter is the twelfth poorest town in Maine and
that the average salary is $26,000. The Association
observed that the Board had not moved off its 5 percent
increase limit, but had merely shuffled costs around.
24. At the next meeting on July 2, 2002, the Association's
negotiators did not present a counterproposal because they
had thought the Board was going to bring them a different
proposal. The Board presented comparisons with SAD 48, to
which the Association responded SAD 64 was a better
comparison. The Association asked for a three-year proposal
and agreed that the Board should use a 20 percent premium
projection for each of two succeeding years.
25. On July 30, 2002, the Board presented a three-year proposal:
a 2.6 percent salary increase with an 85/15 insurance cost
share the first year; a 2.0 percent salary increase for each
of the next two years with the cost share of 82.5/17.5 in
the second year and 80/20 in the third year. The insurance
figures were all based on the Anthem Standard plan. The
Board also provided comparisons with five other SADs and
noted that SAD 46 was at or near the top. The Association
reiterated its goals of achieving a base salary of $25,000
by the third year and getting rid of flat steps. The
Association stated that the 80 percent cost share was do-
able but getting there in three years was too fast.
26. On August 14, 2002, the Association presented a counter-
proposal of a cost share of 87/13 with a 2.6 percent salary
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increase for the first year, then 85/15 and 80/20 of the
Standard plan for the second and third years with 3 percent
in both of those years. The Association's proposal also
added a full step at step 13.
27. The Board countered with an 84/16 cost share in year two and
a 2 percent increase to base salaries in years two and
three. The Board would change step 22 to a full step and
increase the rest of the scale accordingly. The Association
caucused and then said 84/16 was acceptable for the second
year but the 2 percent was not acceptable. They wanted a
base salary of $25,000 by the contract end and to take out
one of the lower flat steps. The parties decided they would
go to mediation.
28. Following this meeting, the two chief negotiators, Art Jette
and Fred Cookson, had informal discussions about signing a
three-year agreement with just the first year of the salary
and health insurance issues settled. They would continue
bargaining on those two issues for the second and third year
of the contract as well as two other unsettled issues, the
zipper clause and hard-to-fill positions.
29. On August 27, 2002, the parties met to work out an agreement
covering all the items that had been tentatively agreed upon
and the first year only for salary and health insurance.
The suggested language for the reopener was:
It is the intent of the parties to reopen
negotiations in November or December 2002 for the
purpose of negotiating salaries, health insurance,
zipper clause, and hard to fill teaching positions
for the second and third years of the agreement.
The Association wanted to have Joe Stupak, MEA's Director of
Research and Collective Bargaining, review the language. At
the final meeting on September 3, 2002, that original
sentence remained essentially the same and a new sentence
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was added, stating, "If agreement is not reached, the normal
procedures of impasse by state statute is open to either
side." There was no discussion of the meaning of the
reopener or the purpose of this additional sentence nor was
there any specific mention of "preserving" statutory rights.
The parties both understood that they were agreeing to
reopen negotiations to address the four unresolved issues
for the second and third years of the agreement, while still
having the benefit of having a collective bargaining
agreement for all other issues.
30. The full language of the Addendum to the 2002-2005 contract
states:
MSAD #46 Board of Directors and the MSAD #46
Education Association will reopen negotiations of
the MSAD #46 2002-2005 Comprehensive Teachers'
Contract in November or December of 2002 for the
purposes of negotiating salaries, health
insurance, zipper clause and hard to fill teaching
positions for the second and third years. If
agreement is not reached, the normal procedures of
impasse by state statute is open to either side.
31. The MSAD #46 2002-2005 collective bargaining agreement,
signed on September 12, 2002, established a wage increase of
2.6 percent for that contract year. The Health Insurance
Article said, in relevant part:
The Board shall pay 87% (2002-2003), __% (2003-
2004), __% (2004-2005) of the premium for each
teacher, up to a full family coverage, for MEA
Benefits Trust Standard Plan (Blue Cross/Blue
Shield) coverage, including the plus 19 coverage.
Any teacher may at the teacher's option, elect to
participate in the MEA Benefits Trust Choice Plus
Plan, in which case, the teacher's cost shall be
limited to the difference between the Board's
payment of 87% (2002-2003), __% (2003-2004) __%
(2004-2005) of Standard Plan premiums and the cost
of the Choice Plus Plan.
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32. The 2002-2005 collective bargaining agreement is 36 pages
long and contains 18 articles, covering such things as
insurance (life, health, dental), payroll deductions, leave
(six kinds), teacher year, teacher day, teacher lunch
period, travel reimbursement, teacher resignation, job
notification, reassignment, school calendar, just cause, a
five-page provision on seniority, layoff and recall, a five-
page grievance procedure, and various provisions on teacher
evaluation, pupil evaluation, and salary issues.
NEGOTIATIONS PURSUANT TO REOPENER PROVISION
33. The parties first met pursuant to the reopener provision on
December 19, 2002. At this meeting, they agreed upon ground
rules for the negotiations and agreed that they should use
an assumption of a 20 percent increase in health insurance
premium costs for both years under discussion. The
Employer's notes described one of the ground rules agreed
upon as, "Any actual proposal made must be made through the
chief negotiators and in writing." The Association's notes
broke this into two ground rules: "1. Any actual proposal
must go through the chief negotiators. 2. Any proposal
should be written down."
34. At the next meeting on February 6, 2003, the Association
suggested that 18 percent would be a more appropriate
projection of the increase in premium costs for the coming
year (the second year of the contract) and 20 percent for
third year. The Board agreed to that change. The Associa-
tion presented a proposal and said it was the same as where
they left off in the fall: a cost share of 85/15 in year
two and 80/20 in year three; a 3 percent salary increase for
each of the two years, and eliminating the flat step at step
13 by adding a 1/2 step in year two and another 1/2 step to step
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13 in year three. The Association's notes of this meeting
indicated that they passed out an insurance proposal and a
salary proposal at this meeting, but there is no copy of
either of these proposals in the record.
35. On March 19, 2003, Mr. Jette stated that the Board was
pleased that the teachers were beginning negotiations where
they left off in the fall. The Board presented a counter-
proposal of a 3 percent wage increase for both years, adding
a step to Step 13 in the third year with a 80/20 cost
share for both years. When Mr. Jette presented this
proposal, he said the Board was "bringing out our best
proposal tonight doesn't mean it is an ultimatum - just
wanted to be close to where we need to be." The Board also
indicated that they did not want to remove the zipper clause
from the current contract and that the hard-to-fill
positions were no longer an issue they wanted to pursue.
Neither party's notes of this session or the next session
contain any express reference to the employer switching from
the Standard plan to the Choice Plus plan as the basis for
calculating the 80/20 cost sharing. After caucusing, the
Association responded that some people would be initially
taking a negative increase after factoring in the increased
employee contribution to the health insurance.
36. Mr. Jette testified that the employer raised the salary
increase to 3 percent and started using Choice Plus as the
basis for calculating the cost share at the same time and
that this change was first made at the April 14, 2003,
session. Mr. Nokes, a member of the Association's
negotiating team and later its chief negotiator, testified
that the Employer started using Choice Plus on March 19,
2003.
37. The Employer's addition of a 1/2 step at step 13 in the final
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year was not discussed at this meeting. The salary chart
distributed as the salary proposal adds the 1/2 step at step
13, with the result that step 13 is halfway between step 12
and step 14.
38. At the next meeting on March 26, 2003, the Association
negotiators stated that they had not had a chance to meet
and needed to caucus to discuss the Board's proposal of
March 19, 2003. Upon return, they observed that under the
Board's proposal, most people would see a pay decrease, then
recover somewhat from the initial drop, but it would be a
minor increase to most. The Association shared sample cases
showing how some employees suffered a decrease in salary
when the insurance cost was taken into account. The Asso-
ciation ran the figures based on the Board's proposal and
explained how they got them and what effect they had on
staff. These sample cases were not part of either party's
notes of the meetings and were not otherwise made part of
the record.
39. During this March 26 meeting, the Association stated that
they did not have a counterproposal, but wanted to think
about a two-tiered plan in which current employees stay in
the Standard plan and new employees have Choice Plus, or the
option of having 100 percent of employee coverage with a
greater contribution for dependent coverage. The Employer's
notes for this portion of the discussion also indicated the
Association wanted to look at "No change in the salary
schedule." Their notes described the two-tiered insurance
plan the Association was going to look at as "Those hired
before June 2003 continue with the Standard Plan (85/15 -
80/20). Those hired after June 2003 Choice Plus Plan
(80/20 - 80/20)." There was no discussion of the change to
step 13 at this meeting. The Association did not present a
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counterproposal at this time.
40. There are no Association notes for April 14, 2003.[fn]2 The
Employer's notes for the April 14, 2003, meeting indicate
that Sharon Imbert, the Association's note taker, was
present. On that date, the Association presented a counter-
proposal to the Board's March 19, 2003, proposal. The
Association's counterproposal included a 3 percent salary
increase in year two, a 3 percent salary increase in year
three with a 1/2 step added to step 13 for year year, and a
health insurance cost share of 87/13 of the Choice Plus plan
for both years. After caucusing, Mr. Jette stated that the
Association's counterproposal of 87 percent of Choice Plus
was 7 percent higher than the Board's proposal. The Board
then presented a counterproposal with the same wage proposal
and the cost share of 87/13 of the Choice Plus plan in the
second year and with a cost share of 80/20 of Choice Plus
plan for the third year. The Board's counterproposal also
included an added 1/2 step at Step 13. There is no evidence
that either of these proposals were made in writing.
41. At the next meeting on April 29, 2003, the Association
raised for the first time the subject of how the added 1/2
step affected the salary scale. The Association's notes
indicate that they pointed out that the Employer made the
new step 13 halfway between step 12 and 14. The Association
had intended that the 1/2 step amount ($625) that was added to
Step 13 also be added to all the steps in the scale above
____________________
2 The Association's notes for the period between March 26 and
June 9, 2003, are all undated. C-33 and C-34 cover the meetings of
April 29, 2003, and May 14, 2003. The parties' Joint Memorandum on
Exhibits submitted to the Board prior to the hearing indicates,
without explanation, that there are no Association notes for the
April 14, 2003, meeting.
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Step 13 (up to Step 24). Thus, step 14 would be a full step
higher than the new step 13, and each step after that would
retain its step increment. A substantial majority of the
teachers in the unit are experienced teachers at step 13 or
higher.
42. At the April 29 meeting, the Association's negotiators also
reported back on the direction they had received from their
membership. They said that most teachers would reluctantly
go to 87/13 of Choice Plus for '03-'04 but they did not want
any individual teacher to end up with a net decrease. The
Association mentioned the possibility of a one-time adjust-
ment for the six teachers negatively affected. For '04-'05,
the teachers did not want to move away from the 87/13 cost
share, felt no one should take a decrease, and they wanted
the 1/2 step at step 13 as proposed by the Association.
43. By the April 29 meeting, the parties had learned that the
actual insurance premium increase for the year beginning
that coming September was 9.9 percent, well below the
parties' working assumption of 18 percent. According to the
Association's notes of that meeting, this resulted in a cost
to the Employer that was $54,800 less than anticipated. The
Association was concerned that these reduced costs were not
being factored in. There is no evidence in the record that
the Association made any proposal to redirect these savings,
either at this meeting or the next. The Association also
complained about the big change in insurance from what the
teachers were used to. Mr. Jette said that the Employer's
decision to move to Choice Plus was based on the number of
teachers already in it and that they seemed to like the
plan.
44. At the next meeting on May 14, 2003, the Board's proposal
contained a provision reallocating to salaries any cost
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savings in insurance for '04-'05 if the cost increase ended
up being lower than the parties' 20 percent assumption. The
Board said it would be willing to have the parties agree on
how the insurance savings in '04-'05 would be applied to
employee salary. The Board's salary proposal was a straight
3 percent increase to base in each year, and did not include
any sort of step adjustment.
45. Mr. Jette testified that the Association took the package
back to members for a ratification vote but the negotiating
committee was not going to speak for or against it.
46. At the June 9, 2003, meeting, the Association reported that
the membership rejected the package by an 85 percent to 15
percent vote. After some discussion, it became apparent to
the parties that they needed to move to the impasse
resolution process. The parties decided that they should
submit a joint request for mediation and try to get their
differences resolved quickly. The chief negotiator for the
Association identified the following issues as "still on the
table: 1) Zipper clause, 2) 1/2 step at 13, 3) 3% to base
@yr., 4) 2 yr. Proposal, 5) 87% of Choice Plus 87-13 split,
6) include retroactivity - to beginning of next contract
year." The Association's notes of this meeting indicated
that Mr. Jette stated, "Any settlement issues would be
retroactive including the insurance." "Our last offer was
all inclusive . . . Our position is all inclusive to the
May 13 proposal as presented to the Association."
47. There were lengthy mediation sessions held on October 6,
October 20 and November 20, 2003. The Employer prepared
several proposals or concepts for different approaches for
the mediator to work with. Mediation was not successful and
the parties filed a joint request for fact-finding on
November 21, 2003.
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48. The fact-finding hearing occurred on May 27, 2004. The
parties filed pre-hearing briefs about five days prior to
the hearing pursuant to the panel's rules.
49. The Association's pre-hearing brief to the fact-finding
panel identified the following issues: the amount and
effective date of a salary increase, the elimination of a
flat step at step 13, the health insurance cost share
percentages and the plan on which that percentage is
calculated, and the elimination of the zipper clause.[fn]3 The
Association's position was to eliminate the flat step 13 by
adding a half step in each of the two years. With respect
to the insurance issue, the Association was proposing that
the Board continue paying 87 percent based on the more
expensive Standard plan until the parties were able to
execute an amendment to the collective bargaining agreement
pursuant to the reopener provision. At the time the
amendment was executed, the 87 percent would be calculated
based on the Choice Plus plan.
50. The Association's brief was signed by Laurie Haapanen, an
MEA Uniserv Director, and Joseph Stupak, MEA's Director of
Collective Bargaining. In addition to laying out the
Association's positions on the subjects, they made two
assertions about the Board's position: first, that the
Board had agreed to pay 87/13 based on the Standard plan for
the duration of the second year of the contract and, second,
that the Board had agreed to make salary increases
retroactive. The wording the Association used in its brief
was, "While written tentative agreements have not been
executed, the only salary issue about which the parties have
____________________
3 The issue of the zipper clause being a permissive subject of
bargaining was not mentioned in the Association's pre-fact-finding
brief and was never raised during negotiations.
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different positions is the elimination of the 'dead zone'"
[i.e., the flat step] and "the Association understands the
Board's proposal to be a 3 percent increase to the salary
scale retroactive to the beginning of the 2003-2004 contract
year." With respect to the insurance issue, the Association
wrote, "Although written tentative agreements have not been
executed, the only health insurance issue about which the
Association understands the parties have different positions
relates to the percentages of premiums that the Board will
contribute on behalf of each employee for the last year
covered by the mid-term bargaining provision" and "the
Association understands that the Board has modified [its]
position so that [the shift to Choice Plus] would not be
retroactive for 2003-2004."
51. The Employer stated in the body of the brief simply that
they had not agreed to retroactivity, without further
elaboration. In the page detailing the Board's proposal,
the salary portion merely said "2003-2004 Salary Increase
the base by 3 percent," without any reference to retro-
activity. The Board held to its position that it did not
want to remove the zipper clause from the contract and that
it had withdrawn the "hard to fill positions" item. The
Board's position on the salary and insurance issue was
stated as an offer of a 3 percent increase in salaries in
each year tied to the 80/20 insurance cost share based on
the Choice Plus for both years. The proposal to redirect
savings that might occur with a lower-than-projected
insurance increase in '04-'05 was not included. The Board
stated, "It is the desire of the Board to move teachers, by
the 2004-2005 contract year, to the same cost share
percentage (80% employer/20% employee of the Choice Plus
Plan) as is reflected for other employees in the district."
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52. The Employer's pre-hearing brief was written and submitted
by the superintendent of schools, as the Board did not want
to engage outside assistance at that time. The Employer's
brief makes no representations as to the Association's
position on any issue.
53. About five minutes before the start of the fact-finding
hearing, Laurie Haapanen and Joseph Stupak handed Mr. Jette
a letter in an envelope. They asserted in the letter that
the zipper clause was a permissive subject of bargaining and
asked the Employer to remove it as an issue to present to
the fact-finding panel. Up until this point, the Associa-
tion had never mentioned or alluded to any concern that a
zipper clause was a permissive subject of bargaining. There
was no testimony about any discussion between the parties
concerning this letter. The zipper clause was presented to
the fact-finding panel as one of the outstanding issues.
54. There was little or no testimony on what transpired at the
fact-finding hearing, other than testimony that the Associa-
tion presented an argument on why it viewed a failure to
make wage increases retroactive a punitive measure. When
the fact-finding panel asked Mr. Jette about the Employer's
position on retroactivity, Mr. Jette stated that he could
not give a blanket offer of retroactivity but considered it
negotiable. He testified that he did not want to "tie my
hands by agreeing in advance that retroactivity would be a
given when it would only serve to protract the process by
guaranteeing that no matter how long the process took there
would always be retroactive pay." Mr. Jette's testified
that in his experience in the private sector retroactivity
was unusual.
55. Mr. Jette testified concerning why the Board's prior offer
of May 14, 2003, was not the same as the offer made as part
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of fact-finding process. The May 14, 2003, proposal
included a provision to redirect savings to salaries if
premiums ended up being less than the projected 20 percent
increase for 2004-2005. Mr. Jette testified that this
proposal was offered as an incentive to get the Association
to modify its position on health care costs and settle the
reopener bargaining before the end of the first year of the
contract. The Employer's objective was to reduce its cost
increases by encouraging the employees to choose the less
expensive Choice Plus plan by having employees assume a
greater share of insurance costs in the second and third
year of the agreement. This reasoning had been provided to
the Association during negotiations. By the time the
parties went to fact-finding in May of 2004, a year of
potential cost savings had been lost. During this bar-
gaining process, the Board continued to maintain the status
quo of the 87/13 cost share based on the more expensive
Standard plan after the first year of the contract had
passed. Mr. Jette was also not certain that the resolution
of the outstanding issues would occur prior to the health
insurance plans' group enrollment deadline.
56. Other than the information in the preceding paragraphs, the
only other evidence presented concerning the fact-finding
hearing were the two pre-hearing briefs and the report of
the fact-finding panel. None of the exhibits that were
provided to the fact-finding panel were offered as evidence
in this proceeding, nor was there any testimony about what
information was presented or what questions were asked,
except as already noted. In describing the Employer's
reaction to the fact-finders' report, Mr. Jette testified
that he felt that the Employer's exhibits and testimony were
"virtually ignored." In particular, he questioned the fact-
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finders' assertion that the parties were in total agreement
on salaries, even though the Employer's position was that
the salary offer was tied to the health insurance issue.
Mr. Jette went on to say (without elaboration), "there just
seemed to be bias against the board for a variety of reasons
that was exhibited throughout the hearing."
57. There was no testimony to explain the basis for the Asso-
ciation's assertions in its pre-hearing brief regarding the
Employer's positions, nor was there any explanation offered
as to why the Association had changed its position on the
flat step 13 from its prior proposal of adding a 1/2 step in
the final year to adding a 1/2 step in each of the two years.
58. The fact-finders' report was dated June 18, 2004. The fact-
finders stated, "The parties quite clearly agreed in
principle to a three (3%) percent increase in salary for
each of the two years" and noted that the Board tied that
increase to its proposed change to the insurance
contribution. The panel decided that the Association's
demand for the elimination of two flat steps at step 13 and
step 15 was not justified. There is no explanation of how
the Association's position as stated in its brief of
removing the flat step 13 in two 1/2 step increments
transformed into adding step increases at two different flat
steps. The fact-finders concluded there was no need for
additional steps. With respect to the health insurance
question, the fact-finders said the Employer contribution
should be reduced to 80 percent of the Standard plan, rather
than to 80 percent of Choice Plus. They recommended that
the change become effective at the beginning of the next
contract year (September 2004) since employees can change
plans only at that time. Finally, the fact-finding panel
suggested a change to the zipper clause so that it only
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applies to permissive subjects.
59. After the fact-finding report was issued by the fact-
finders, the Board received it and discussed it in executive
session.
60. On July 22, 2004, the Association presented a proposal to
the Board, which was essentially the recommendation made by
the fact-finders. The Association proposed that the
Employer pay 87 percent of the Standard plan through '03-
'04, then 80 percent of Standard (or 86.4 percent of Choice)
for the '04-'05 year (i.e., effective September 1, 2004).
The proposal included the change to the zipper clause found
in the fact-finders' report that made it apply to permissive
subjects only. With respect to wages, the proposal included
retroactivity for the change in base salaries and in the
hourly rate used in the "Extra Pay for Extra Work" section
of the salaries article in the collective bargaining
agreement. Upon receiving this proposal, the Board said it
needed to assess it before responding, and asked if teachers
supported the move to 80/20 cost share.
61. Mr. Nokes testified that the Association's position from
April 14, 2003, through fact-finding was to adhere to the 87
percent figure based on the Choice Plus plan (nearly the
same as 80 percent of the Standard plan). After fact-
finding, the Association's proposal was maintaining 87/13 of
Standard for '03-'04, and going to 80/20 of Standard for
'04-'05, which is equivalent to 86.4 percent of Choice.
62. On August 12, 2004, the Board reported that they had
considered the Association's proposal and rejected it.
Mr. Jette testified that the Board's primary reason for
rejecting the fact-finders' recommendations was that the
fact-finders did not consider the Board's position that the
3 percent wage increase was dependent upon lesser costs for
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health insurance. He felt that the fact-finders ignored the
Board's position and arguments. Following the Board's
rejection of the Association's proposal, the Association
caucused, then said they would take it back to their
membership on September 9, 2004.
63. There were post-fact-finding mediation sessions held in the
fall of 2004.
64. Mr. Nokes wrote a "Negotiations Update" dated 10/08/04 and
had it distributed to Association members. This memo
touched on the first mediation session and Mr. Nokes'
conclusion that the Employer was not going to budge on the
insurance issue. The memo was primarily focused on actions
the Association members could take to try to increase
pressure on the Board.
65. In a letter dated October 29, 2004, the Association's chief
negotiator, Mr. Nokes, wrote to Mr. Jette requesting that
the Board agree to binding arbitration on all issues.
66. On November 19, 2004, Mr. Jette wrote a letter to Mr. Nokes
in which he stated the Board had decided to not agree to
binding arbitration on insurance and salary, as requested on
October 29, 2004. Mr. Jette suggested statutory interest
arbitration. He notified the Association that the Board had
retained the law firm of Drummond Woodsum & MacMahon at that
point to represent the Board in the negotiations.
DISCUSSION
The question presented is whether the conduct of the Board
in negotiating pursuant to a reopener provision violated its
statutory duty to negotiate in good faith. Before addressing
that issue, we will first discuss the Employer's claim that
evidence presented at the hearing compels a conclusion that the
Association had waived its statutory right to demand mid-term
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bargaining by agreeing to include a zipper clause in the
collective bargaining agreement.
The duty to bargain is established in Section 965(1) of the
Municipal Public Employees Labor Relations Law which states, in
relevant part:
1. Negotiations. It shall be the obligation of the
public employer and the bargaining agent to bargain
collectively. "Collective bargaining" means, for the
purposes of this chapter, their 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, provided the parties
have not otherwise agreed in a prior written
contract;
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 shall be compelled to agree to
a proposal or be required to make a
concession . . .
26 M.R.S.A. 965(1).
The proviso in paragraph B means that the duty to bargain over
mandatory subjects of bargaining continues with respect to new
issues which arise while a collective bargaining agreement is in
effect "when those new issues are neither contained in the terms
of the contract nor negotiated away during bargaining for that
contract or a successor agreement." East Millinocket Teachers
Ass'n v. East Millinocket School Committee, No. 79-24, at 4-5
(Apr. 9, 1979) (quoting Cape Elizabeth Teachers Association v.
Cape Elizabeth School Board, No. 75-24 (1975) at page 4.) See
also Local 2303 IAFF v. City of Gardiner, No. 05-03 (March 22,
-26-
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2005). The statutory right to demand bargaining may be waived,
but that waiver must be clear and unmistakable. State of Maine
v. MSEA, 499 A.2d 1228, 1230 (Me. 1985). A zipper clause is a
fairly common provision included in a collective bargaining
agreement as a means of waiving the statutory right to bargain.
The purpose of a zipper clause is to foreclose or "zip up"
bargaining for the duration of the contract, thus promoting
stability in labor relations for that period. The effect of a
zipper clause is that a party may lawfully refuse to bargain over
issues not covered by the contract when requested by the other
party.
Here, the collective bargaining agreement contains a very
broad zipper clause. The Employer argues that the Labor Board is
without jurisdiction to hear this matter because the Association
waived its statutory right to demand bargaining by agreeing to
the zipper clause in the collective bargaining agreement. The
Employer also claims that the collective bargaining agreement's
reopener provision (the "Addendum" to the agreement) merely
creates a contractual right, but does nothing to limit the effect
of the zipper clause.[fn]4
The Employer's argument is based on its strained reading of
the Law Court's decision in State of Maine v. MSEA, 499 A.2d 1228
(1985). In that case, the employer had refused MSEA's request to
bargain over the impact of three departmental reorganizations.
The zipper clause in that case stated:
Each party agrees that it shall not attempt to compel
____________________
4 This argument was the basis for the executive director's
dismissal of the complaint, which was subsequently reversed by the
Board. The Board's analysis in the Interim Order of February 3, 2005,
was that the Addendum made it impossible to consider the waiver
contained in the zipper clause to be clear and unambiguous. The
employer has not really addressed any failing in that logic.
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_________________________________________________________________
negotiations during the term of this Agreement on
matters that could have been raised during the nego-
tiations that preceded this Agreement, matters that
were raised during the negotiations that preceded this
Agreement or matters that are specifically addressed in
the Agreement.
Even though the management rights clause of the agreement
authorized the employer to reorganize the departments,[fn]5 both the
Labor Board and the Law Court recognized that the duty to bargain
over the impact was a separate question. After reviewing the
specific terms of the collective bargaining agreement, the Law
Court held:
the State's unilateral action was specifically
permitted under the contract. The statutory duty to
negotiate over the impact of such decisions could have
been preserved in the contract. That statutory
obligation was waived.
State of Maine v. MSEA, 499 A.2d at 1232.
The Employer relies on the Law Court's statement that the
right to demand bargaining over impact "could have been
preserved." The Employer claims that, in this case, the parties'
express agreement to "reopen negotiations" did not preserve the
right to demand bargaining. The Employer admits in its brief (at
16, fn. 5) that the Labor Board "reasonably inferred from the
____________________
5 The management rights article expressly reserved to the State
the exclusive right to manage its operations, including but not
limited to:
[T]he right to determine the mission, location and size of
all its agencies and facilities; the right to direct its
work force; . . . to establish specifications for each class
of positions and to classify or reclassify and to allocate
or reallocate new or existing positions in accordance with
the law; . . . to determine the size and composition of the
work force; . . . [and] to install new, changed or improved
methods of operations.
Id. at 1229, fn. 3.
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language of the Addendum that the parties had intended to
preserve their statutory right to bargain," but the Employer also
says "nothing contained in the Addendum reserves the
Association's statutory right to bargain."
We disagree. The Addendum, which stands on equal footing
with the other provisions of the contract, states, in full:
MSAD #46 Board of Directors and the MSAD #46 Education
Association will reopen negotiations of the MSAD #46
2002-2005 Comprehensive Teachers' Contract in November
or December of 2002 for the purposes of negotiating
salaries, health insurance, zipper clause and hard to
fill teaching positions for the second and third years.
If agreement is not reached, the normal procedures of
impasse by state statute is open to either side.
The language of the Addendum is abundantly clear: when the
parties agree to "reopen negotiations" . . . "in November or
December of 2002 for the purposes of negotiating" the specified
subjects, they are doing just that. Reopener provisions have
been around longer than Maine's collective bargaining laws. They
promote labor stability by allowing the parties to agree to long-
term contracts while retaining the ability to return to the table
for specified subjects within the time frames or under the
circumstances agreed upon. The fact that the parties in this
case decided to include the reopener provision without expressly
stating that they were "preserving their statutory right to
bargain" simply reflects the fact that they did not need to say
anything. In common parlance in the world of collective
bargaining, agreeing to a reopener means that they are preserving
the statutory right to demand bargaining. The duty to bargain
resumes in accordance with the conditions of the reopener
provision. See, e.g., C.J. Holdings Inc., 315 NLRB 813 (1994),
enforced, 97 F.3d 114 (5th Cir. 1996).
As Mr. Jette testified, the parties were anxious to execute
an agreement covering all of the issues they had agreed on,
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including the salaries and health insurance costs for the first
year, and to take up the identified issues for the second and
third year of the contract later. Mr. Jette testified that there
was an open discussion at the bargaining table on having a three-
year agreement and including a reopener clause for the second and
third year of the contract for the purpose of negotiating the
salary, health insurance, zipper clause and hard-to-fill
positions. The fact that neither Mr. Jette nor Mr. Nokes
recollected any mention of "preserving their statutory right to
bargain" is quite simply just a reflection of their understanding
that a reopener provision preserves the right to demand
bargaining. The very purpose of a reopener provision is to
require mid-term bargaining even if the subjects covered by the
reopener are already covered by the contract. We hold that the
reopener provision of the parties' collective bargaining
agreement was sufficient to preserve the statutory right to
bargain and creates an exception to the broad waiver in the
zipper clause.
The Employer's claim that Bureau of Employee Relations v.
AFSCME creates an "unambiguous" standard that applies here is
difficult to follow. Bureau of Employee Relations v. AFSCME,
614 A.2d 74 (Me. 1992). In that case, the dispute was whether the
employer could change the pay periods, an issue not covered by
the collective bargaining agreement. The parties had negotiated
a broad zipper clause and a maintenance of benefits article in
which the State agreed to consult and negotiate with AFSCME
before changing any benefit "presently provided pursuant to law."
The Law Court held that by agreeing to the zipper clause, AFSCME
had waived its statutory right to demand bargaining over the
change. The Law Court noted that the maintenance of benefits
provision created only a contractual right but did not preserve
the statutory right to bargain, even though in that provision,
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the employer agreed to negotiate with AFSCME before making
changes. The Employer claims that in AFSCME the Law Court held
that even an "express reference to an agreement to bargain" is
insufficient to preserve the right to demand bargaining during
the term of the agreement. Thus, the argument goes, the express
reopener provision in this case is insufficient as well and, like
the maintenance of benefits article in AFSCME, only creates a
contractual right. At this point, we must observe that if the
parties had not preserved the statutory right to bargain in this
case, it is difficult to imagine how they ever could, if one were
to apply the "unambiguous" standard the Employer has created
here. The Employer's argument fails because it extracts a few
words out of the context of the larger environment of collective
bargaining and ignores both the intent of the parties and the
realities of collective bargaining.
The purpose of a maintenance of benefits provision is
fundamentally different than the purpose of a reopener provision.
The purpose of a reopener is to reopen negotiations in accordance
with the limitations or contingencies specified. It enables the
parties to enter into an agreement for a longer period than they
might be comfortable with absent the reopener. The purpose of a
maintenance of benefits provision, however, is to preserve the
status quo with respect to benefits or practices not covered by
the agreement. Some maintenance of benefits provisions simply
prohibit changes to existing benefits or practices (See IAM
District Lodge #4 v. Wiscasset, No. 03-14 (Feb. 23, 2004) at 3);
others require the parties to bargain before making the change.
(See BOER v. AFSCME, 614 A.2d 74). In some respects, the purpose
of a maintenance of benefits provisions is to limit the authority
granted in a management rights clause with respect to existing
practices affecting mandatory subjects that are not covered by
the agreement.
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In summary, we hold that even though the parties included a
broad zipper clause in the collective bargaining agreement, the
reopener provision preserved the statutory right to bargain over
the issues specified. The testimony on this matter supports, not
undercuts, our conclusion. The Labor Board consequently has
jurisdiction to decide the question of whether the MSAD #46 Board
failed to bargain in good faith in negotiations held pursuant to
the reopener provision.
THE FAILURE TO BARGAIN IN GOOD FAITH CHARGE
The standard this Labor Board applies in evaluating alleged
violations of the duty to bargain in good faith is not in
dispute. It has been described as follows:
A bad faith bargaining charge requires that we examine
the totality of the charged party's conduct and decide
whether the party's actions during negotiations
indicate "a present intention to find a basis for
agreement." NLRB v. Montgomery Ward & Co., 133 F.2d
676, 686 (9th Cir. 1943); see also Caribou Schoo1
Department v. Caribou Teachers Association, 402 A.2d
1279, 1282-1283 (Me. 1979). Among the factors which we
typically look to in making our determination are
whether the charged party met and negotiated with the
other party at reasonable times, observed the ground
rules, offered counterproposals, made compromises,
accepted the other party's positions, put tentative
agreements in writing, and participated in the dispute
resolution procedures. See, e.g., Fox Island Teachers
Association v. MSAD #8 Board of Directors, MLRB No.
81-28 (April 22, 1981); Sanford Highway Unit v. Town of
Sanford, MLRB No. 79-50 (April 5, 1979). When a
party's conduct evinces a sincere desire to reach an
agreement, the party has not bargained in bad faith in
violation of 26 M.R.S.A. Sec. 964(1)(E) unless its
conduct fails to meet the minimum statutory obligations
or constitutes an outright refusal to bargain.
Kittery Employees Assoc. v. Strahl, No. 86-23, at 10-11 (Jan. 27,
1987), quoting Waterville Teachers Assoc. v. Waterville Board of
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Education, No. 82-11, at 4 (Feb. 4, 1982). See also MSEA v. York
County, 04-04, at 28-29 (Oct. 8, 2004).
At the same time the statute imposes the obligation to
bargain in good faith on both parties, section 965(1)(C) also
states that, ". . . neither party shall be compelled to agree to
a proposal or be required to make a concession . . . ." Thus, a
refusal to agree to a particular proposal is not, in itself, a
refusal to bargain in good faith.
The established standards of good faith bargaining apply to
the parties whether they are negotiating a new contract, a
successor contract, or pursuant to a reopener provision. See,
NLRB v. Lion Oil, 352 U.S. 282 at 290-291 (1957) ("Congress
recognized a duty to bargain over modifications when the contract
itself contemplates such bargaining."); Speedtrack, 293 NLRB No.
128 at 9-10 (holding that a contract reopener provision permits
the parties "to respond to disputes over reopened subjects by
resort to the courses of action normally allowed them when a
contract has expired"); see generally, e.g., Maine Teachers
Assoc. v. Sanford School Committee, No. 77-18 (June 13, 1977)
(applying same standards of good faith bargaining to negotiations
occurring pursuant to a reopener provision) and Auburn Support
Personnel v. Auburn School Committee, No. 91-12 (July 11, 1991)
(same).
There are two aspects of this case that make it particularly
difficult to assess the Employer's actions. The first is that
the negotiations were pursuant to a reopener provision which by
its terms was limited to four issues: salaries for the second
and third years of the contract, health insurance cost sharing
for those two years, the zipper clause and the issue of hard-to-
fill positions. The fewer the issues on the table, the less
opportunity there is to witness the give and take that often
indicates sincere bargaining. The other complicating factor in
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this case is the fact that the economics underlying the proposals
were affected once the negotiations moved into the time frame
being negotiated.
We also note that there is a lot that was not said about the
negotiations in this case: The notes from a key negotiating
session are missing from the Association's exhibits, neither
party provided copies of certain documents that had been
distributed at negotiating sessions, very little effort was made
by either party to explain the sometimes cryptic notes of
negotiating sessions, and what transpired at the fact-finding
hearing remains largely a mystery. Presumably, the parties
either individually or jointly decided they have issues they did
not want raised at this proceeding, for whatever reason.
In essence, the case is about whether the Employer engaged
in hard bargaining or bad faith bargaining. The Board of
Directors gave its negotiators authority to negotiate a combined
salary and health insurance increase of 5 percent and the
negotiators were bargaining with that objective in mind.[fn]6 The
Association had one of the better insurance benefits in the area
and did not want the district's relative standing to slip.
Neither party wanted to give in. The Association alleges that,
by it overall conduct since the start of the reopener negotia-
tions, the Employer failed to bargain in good faith as required
by 965(1).
The Association's case relies on two primary points: a
factual assertion, which we conclude is not supported by the
record, and what appears to be the Association's position in this
case that negative movement in the Employer's proposals was
regressive, and their regressive proposals demonstrate bad faith
____________________
6 See Local 1650 IAFF v. City of Augusta, No. 04-14 at 15 (holding
to negotiating parameters set by City Council is hard bargaining, not
bad faith bargaining.)
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bargaining. This, too, is incorrect. The Association also
asserts that the Employer's conduct regarding retroactivity and
the zipper clause are further indications of bad faith
bargaining.
Much of the complainant's case depends on its assertion that
when the Employer proposed a 3 percent salary increase and a
80/20 insurance cost share at the March 19, 2003, negotiating
session, the basis for defining the contribution level was the
higher cost Standard plan, not the less expensive Cost Plus plan.
Although the complainant recognizes that the exhibits are not
clear on this point, the complainant relies on Mr. Jette's
testimony that they did not start using the lower cost plan as
the basis for the cost share until April. Mr. Jette did indeed
say that, but we conclude that he was simply mistaken about
the dates. Looking at all of the evidence as a whole (and
Mr. Jette's repeated assertion that he was not strong on
details), we conclude that the March 19 proposal was based on
the Choice Plus plan.
The most compelling evidence about this issue is the
specifics of the first counterproposal to the March 19 offer that
the Association made on April 14, 2003.[fn]7 At that meeting, the
Association proposed a 3 percent salary increase in year two, a 3
percent salary increase in year three with 1/2 step added to step
13 for year three, and a health insurance cost share of 87/13 of
the Choice Plus plan for both years. If the Employer's March 19
proposal had indeed been based on the Standard plan as the
Association now asserts, the Association's counterproposal on
____________________
7 In its brief, the Association claims that this proposal was not
made until April 29, 2003, but cited no evidence that supports this
assertion and offered no evidence disputing the Employer's detailed
notes of the April 14, 2003, session which unequivocally state that
the Association made this counterproposal. The Association did not
offer their notes of the April 14 negotiating session in evidence.
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April 14 would have been the same for insurance because 87
percent of the Choice Plus plan is equivalent to 80 percent of
the Standard plan. Furthermore, since both the Employer's
proposal and the Association's counterproposal included a 3
percent salary increase for both years, the only difference in
the two packages would have been the adjustment to step 13.
There is no indication in the record that the step issue was
discussed or analyzed at all prior to the April 29 meeting. All
of the discussions on March 19, March 29 and April 14 related to
the impact of the insurance costs. The step issue never even
came up. It does not make sense that the parties could have been
so close to settlement but never even mentioned the only issue
that separated them.
The Association contends that Mr. Jette was correct in
saying the Employer did not propose using Choice Plus for
calculating the cost share until April but that he was wrong in
saying that April was the first time they proposed a 3 percent
increase. Based on these two assertions, the Association argues
that the only change presented on April 14 was a reduction in the
proposed insurance contribution. We conclude that Mr. Jette was
correct that this increase in salary occurred in tandem with the
move to Choice Plus. He was incorrect to state (in response to a
leading question from the Employer's attorney) that these changes
occurred on April 14, 2003. Both sets of negotiating notes show
the 3 percent increase was presented on March 19, 2003. These
notes are more reliable than a witness's recollection of dates
and details of events two years old.[fn]8
____________________
8 We do not think Mr. Jette's testimony that the Board was taking
advantage of a "window of opportunity" presented by the Association's
reference to Choice Plus as the basis for calculating the cost share
is particularly important. The previous June, the Association had
used Choice Plus as part of its proposal for a two-tiered insurance
plan and Mr. Jette might have had that in mind. The Board's decision
to start using Choice Plus in their March 19 proposal may be connected
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Furthermore, the Board's notes of the April negotiating
session support the conclusion that the March 19 cost-share offer
was based on Choice Plus. After the Association made its
April 14 counterproposal, in which it proposed a 87/13 cost share
based on Choice Plus for both years, Mr. Jette remarked that the
Association's proposal was 7 percent higher than the Board's
proposal. Had the Board's proposal been 80 percent of the
Standard plan, this comment would not have made sense--80 percent
of the Standard plan is equivalent to 87 percent of the Choice
Plus plan. His comment makes perfect sense if the Board's March
proposal were based on Choice Plus.
By concluding that the Board's March 19 proposal used Choice
Plus as the basis for the cost share, the Association's argument
that subsequent actions by the Employer were regressive is
weakened substantially. The Association asserts that the Board's
proposal on April 14 differed from its prior proposal only by a
reduction in the insurance contribution, i.e. that it was the
first time the Employer based the cost share on the Choice Plus
plan. The facts simply do not support this. Not only was there
no reduction in the insurance contribution from the March 19
proposal, the Board's counterproposal of April 14 included an
increase from 80 percent to 87 percent of Choice Plus for the
first of the two years.
The Association also contends that the Employer made
significantly regressive proposals on salaries. Presumably this
refers to the Employer's failure to include in the May 2004
fact-finding position statement the proposal made on May 14,
2003, to redirect to salaries the savings that might occur if
the insurance rates for 2004-05 ended up being less than the
____________________
to that proposal or his statement may have been an after-the-fact
explanation.
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projected 20 percent. The Association may also be referring to
removal of the proposal to improve step 13 between April 29 and
May 14, 2003. In either case, the Association's argument seems
to be that the backward movement on these issues is by definition
regressive and a regressive proposal is by definition an
indication of bad faith bargaining. This is not the case.
A claim that a regressive proposal is evidence of bad faith
requires an examination of the proposal and the surrounding
circumstances. We note that even if the parties had reached a
tentative agreement on a proposal, a subsequent withdrawal of
that proposal would not necessarily result in a finding of bad
faith bargaining. We held in Lewiston Police that it was
evidence of bad faith for a party to unilaterally withdraw prior
tentative agreements without good cause. Lewiston Police Dept.
IBPO v. City of Lewiston, No. 79-64 (Dec. 18, 1979) at 8. In
this case, there were no tentative agreements on these two issues
and there is no evidence that the Employer ever refused to
provide an explanation for no longer including the proposals.
As with any allegation of bad faith bargaining, we must
consider all the evidence to determine whether any single action
or the entire course of conduct was made with the intent to avoid
an agreement or an intent to frustrate the bargaining process.
See generally Kittery Employees Assoc. v. Strahl, No. 86-23, at
10-11, and Teamsters v. City of Westbrook, No. 89-05, at 10-11
(Oct. 25, 1988) (Failure to submit the final tentative agreement
for ratification for an unreasonable length of time evidences a
lack of intention to reach a final binding agreement and
frustrates the bargaining process). With respect to the
Employer's proposed change to step 13, the evidence shows that
this proposal was rejected by the Association, as their counter-
proposal reiterated the point made in discussion that they wanted
the improvement to step 13 to push up all of the higher steps by
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a corresponding amount. With respect to the offer to redirect
the potential savings from smaller premium increases in 2004-
2005, Mr. Jette explained that it had been presented as an
incentive to reach settlement early enough for the Employer to
realize some savings from employees selecting Choice Plus. By
the time the fact-finding hearing occurred one year later, the
opportunity to achieve those savings had been lost because the
Employer had been required by law to continue paying 87 percent
of the cost of the Standard plan.[fn]9 There is no allegation in the
complaint that the Employer refused to provide an explanation of
its changed position at the fact-finding hearing nor is there any
evidence that this issue was discussed at all in fact-finding.
The Association has offered no evidence to suggest that these
proposals were made with the intent to avoid reaching an
agreement.
The Association makes various other contentions about the
Employer's conduct that it considers indicative of bad faith
bargaining, most of which are not supported by the record. The
Association claims that the Employer's "initial" proposal on
March 19, 2003, was its best offer, but it was neither the
initial proposal nor its best proposal. It was not an initial
proposal because both parties viewed the reopener as a
continuation of the prior bargaining. Even if it were the
initial proposal, the March 19 proposal was not the Employer's
best offer because the April 14 counterproposal had increased the
cost share to 87 percent for the first of the two years.
The Association claims the Employer never made a proposal on
the zipper clause issue, though the record is clear the
____________________
9 The 87/13 cost share for the Standard plan was the status quo
that the Employer was required to maintain during the collective
bargaining process and through the impasse resolution procedures
established by statute.
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Employer's proposal was to retain the clause in the existing
agreement. Perhaps the Association is suggesting that the
proposal to keep the zipper clause in the existing agreement was
never actually made because it was not presented in written form.
The Association has not argued this point and, even if it had, it
would fail in this case. It is true that the parties' notes on
ground rules indicate that a proposal must be in writing. Not
only was there no testimony interpreting this ground rule, there
are numerous instances of proposals made by both sides without
any evidence that those proposals were made in writing.
The Association also claims the Employer "artfully evaded"
making a proposal on retroactivity, but this issue had not been
on the bargaining table during the negotiating sessions. The
Employer's position at the time of fact-finding was that it had
not agreed to retroactivity, but considered it negotiable.[fn]10 The
Association claims that the Employer made no lasting compromises,
a claim the record does not support. Finally, the Association
claims the Employer "summarily rejected" the fact-finders'
recommendations, when the evidence indicates that they considered
it in executive session and had a reasoned basis for rejecting
it.
A final argument presented by the Association is that the
Employer committed a per se violation of the duty to bargain by
insisting on a permissive subject of bargaining at fact-finding.
It is well established that a party commits a per se violation by
insisting to impasse on a non-mandatory subject of bargaining.
See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342
____________________
10 Retroactivity is clearly a mandatory subject of bargaining.
See Caribou School Dept. v. City of Caribou, 402 A.2d 1279, at 1284
(Me. 1979); Auburn Firefighters, IAFF v. City of Auburn, No. 83-10
at 8 (March 9, 1983). Retroactive changes, however, must always be
agreed upon before they can be implemented; otherwise they are simply
unilateral changes in the status quo made retroactively.
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(1958); MSAD No. 24 v. Van Buren Custodian Assoc., No. 79-16
(1979). The Association asserts in its brief that a zipper
clause is a permissive subject of bargaining, not a mandatory
subject. The Association argues: "A bargaining agent cannot be
forced to bargain over a provision which constitutes a waiver of
bargaining rights on all subjects." The case the Association
relies upon is MSAD #22 Non-Teachers Assoc. v. MSAD #22, No.
79-32 (July 30, 1979). In that case, the employer had proposed a
provision which would have given management the unrestricted
power to make changes to mandatory subjects. The Board described
it as "an all-inclusive management rights provision which sweeps
over all subjects of mandatory bargaining" and was "ultimate
management control over all subjects." The Board concluded:
Thus, while we agree that a management rights clause
covering only a few mandatory subjects of bargaining
would not be a per se violation but rather only
possible evidence of bad faith, we conclude that a
bargaining agent cannot be forced to bargain over a
provision which constitutes a waiver of bargaining
rights on all subjects.
MSAD #22, No. 79-32 at 6.
We think it appropriate that the Association has cited MSAD
#22 on this issue because we conclude that the same analysis that
applies to management rights clauses should apply to zipper
clauses as well. Both zipper clauses and management rights
clauses are forms of waiver. A zipper clause waives the parties'
right to demand mid-term bargaining on subjects not covered by
the agreement or raised in negotiations. Management rights
clauses authorize the employer to make the changes specified in
the clause without bargaining first. In MSAD #22, the Labor
Board agreed with the holding of the U.S. Supreme Court in
American National Insurance that insisting on a provision
reserving sole control over certain mandatory subjects
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(promotions, discipline, and work scheduling) may be evidence of
bad faith bargaining, but it should not be considered a per se
violation. MSAD #22, No. 79-32, at 7, citing NLRB v. American
National Insurance, 343 U.S. 395 (1952). Thus, while management
rights clauses are a mandatory subject of bargaining, that does
not mean all management rights clauses can be insisted upon with
impunity in all circumstances. Similarly, a zipper clause is a
mandatory subject but insisting upon a broad zipper clause in
some circumstances, such as when negotiations covered only a
minimal number of subjects, may be evidence of bad faith
bargaining. See Bangor Firefighters Assoc. v. City of Bangor,
No. 94-45 (Feb. 15, 1995) at 15 ("the number of mandatory
subjects on which a waiver is demanded [and] the nature of the
waiver" is relevant.)
The Association attempts to draw a parallel between the
effect of the provision in MSAD #22 and the effect of the zipper
clause in the present case. In MSAD #22, the Labor Board was
examining a clause that would go into effect if the voters failed
to approve the contract.[fn]11 No. 79-32 at 7. As noted above,
the effect of the clause at issue was to give the employer
unrestricted power to make changes in any subject, and had the
effect of nullifying the agreement entirely. In this case, the
effect of the zipper clause bears no resemblance to either
provision in MSAD #22. We agree that the zipper clause here is
very broad. The effect of it, however, can only be assessed in
light of the contract as a whole. The more comprehensive a
collective bargaining agreement is, the less effect a zipper
clause has in limiting the right of a party to demand mid-term
____________________
11 In addition to the clause giving the employer unfettered power,
the Labor Board also found that the employer committed a per se
violation of the duty to bargain by insisting on a provision that
"shunted ratification" to the voters. Id.
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bargaining. Given the comprehensive coverage of the parties'
collective bargaining agreement in the present case, we cannot
see how the holding in MSAD #22 has any application.
Our conclusion that a zipper clause is a mandatory subject
of bargaining is supported by observations made by the Law Court
in State of Maine v. MSEA. In discussing the zipper clause issue
in that case, the Court noted that "Section 979-D(1)(B) of the
act specifically provides that the parties may alter the
statutory duty to engage in collective bargaining" and
"[u]nquestionably, the parties may contractually waive the right
to any mid-term negotiations." In rejecting the Labor Board's
analysis of the effect of the zipper clause in that case, the Law
Court stated:
If there is a sound policy basis for restricting or
eliminating the right to bargain for a waiver of mid-
term negotiations over the impact of agreed upon
unilateral employer actions, then that policy should be
reflected in legislation.
State of Maine v. MSEA, 499 A.2d at 1232.
We think that part of the problem in the present dispute may
stem from a misunderstanding of the purpose and effect of a
zipper clause. The purpose of a zipper clause is to limit a
party's right to demand mid-term negotiations on mandatory
subjects of bargaining to the extent specified in the zipper
clause.[fn]12 A zipper clause does not authorize the employer to
make unilateral changes. It simply makes it legal for one party
to refuse the other party's request for mid-term bargaining over
a mandatory subject. The employer's specific authority to make a
____________________
12 The fact-finders' insertion of a clause making the zipper clause
applicable only to permissive subjects of bargaining had the effect of
transforming it into a meaningless provision because there is no duty
to bargain over permissive subjects.
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change must be found in the collective bargaining agreement or in
established past practice. For example, in State of Maine v.
MSEA, the Law Court found that "the State's unilateral action was
specifically permitted under the contract," a conclusion that was
independent of its conclusion that the right to demand bargaining
over the impact of such an action was waived. 499 A.2d at 1232.
Similarly, in Auburn Firefighters Ass'n v. City of Auburn, the
Labor Board found that a general management rights clause did not
authorize the employer to implement a new, light-duty work
program and was not a waiver by the union of its right to compel
bargaining about the program before it was implemented. No.
83-10 at 6 (March 9, 1983). See also, Local 2303, IAFF v. City
of Gardiner, No. 05-03 (Management rights clause was not specific
enough to authorize new call-back policy nor was it sufficient to
be a waiver of Union's right to bargain about the policy).[fn]13
Furthermore, the Association's statement that the zipper
clause constitutes a waiver of bargaining rights on all subjects
ignores the principle stated in Cape Elizabeth that there is no
right to mid-term bargaining when the issue is already covered by
the terms of the contract. No. 75-24 at 4. To the extent that
either party is concerned about the overly broad effect of a
zipper clause on the right to demand mid-term bargaining, those
concerns should be expressed at fact-finding or interest arbi-
tration in support of no zipper clause or a less expansive one.
In summary, we conclude that the Association has failed to
demonstrate that the Employer has not bargained in good faith as
required by 965(1)(C) or failed to participate in good faith in
____________________
13 When it comes to determining whether an employer is authorized
to take unilateral action, it is important to remember that, unlike
under the National Labor Relations Act, Maine's acts do not contain
any inherent managerial rights. State v. MLRB, 413 A.2d 510, 514
(1980) and Bath Firefighters v. City of Bath, 80-44 at 3 (Oct. 17,
1980). Even educational policy changes are subject to the meet-and-
consult requirement under MPELRL. 26 M.R.S.A. 965(1)(C).
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mediation or fact-finding as required by 965(1)(E). As there
was no independent basis for a violation of 964(1)(A) alleged,
there is no basis for finding a violation of that section.
ORDER
On the basis of the foregoing findings of facts 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), it is hereby ORDERED:
1. That portion of the complaint charging the MSAD #46
Board of Directors with violating 26 M.R.S.A 965(1)(C)
and 965(1)(E) by refusing to bargain in good faith and
refusing to participate in mediation and fact-finding
in good faith is dismissed.
2. That portion of the complaint charging the MSAD #46
Board of Directors with violating 26 M.R.S.A. 965(1)(A)
by interference, restraint or coercion is dismissed.
Dated at Augusta, Maine, this 12th day of October, 2005.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to 26 /s/______________________________
M.R.S.A. 968(5)(F) to seek a Peter T. Dawson
review of this decision and Chair
order by the Superior Court.
To initiate such a review, an
appealing party must file a
complaint with the Superior /s/______________________________
Court within fifteen (15) days Karl Dornish, Jr.
of the date of issuance of Employer Representative
this decision and order, and
otherwise comply with the
requirements of Rule 80(C) of
the Rules of Civil Procedure. /s/______________________________
Robert L. Piccone
Employee Representative
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