On October 27, 2008, the Maine Labor Relations Board voted
to ask for input from any interested party and to issue an
interpretive ruling on an expedited basis on the following
question:
          I just came from the monthly meeting of our school
     board on which I currently serve. Additionally, I'm
     running for the new RSU board. At tonight's meeting we
     were notified that the teacher's union has requested to
     begin negotiations on a new contract (current contract
     expires in 2009 after July 1st when our new RSU will
     officially be in place). My position is that the
     current SAU board has no authority to negotiate a new
     contract, but must defer to the new RSU board. What do
     you advise?[fn]1

This is essentially a redacted version of a question received by
the Maine Department of Education which it intended to respond to
on its School Reorganization "Questions and Answers" web page.
The Department's request for assistance from the MLRB led to the
Board's decision to issue an interpretive ruling on its own
initiative, as permitted by 26 MRSA section 968(3). 
     The Board publicized a request for input on this question by
sending an email to known labor practitioners involved in K-12 

     1 Throughout this ruling, RSU refers to "regional school unit" and
SAU refers to "school administrative unit."

[end of page 1]

education and by posting a notice on the MLRB website stating
that "The MLRB will accept written comment from any person,
employee organization or public employer until 5:00 p.m. on
Tuesday, November 4, 2008. The written comment may be in the form
of a letter, an email or a written memorandum of law."  
                    
                            DISCUSSION

     In the scenario presented, the SAU is currently the public
employer and will remain the public employer until the RSU
becomes operational on July 1, 2009.  The current collective
bargaining agreement will not expire until after July 1, 2009, at
which time the SAU will cease to exist by operation of law. 
     The School Reorganization Law states that on the operational
date the regional school unit is required to "assume all of the
obligations, duties, liabilities and rights of the participating
school administrative units for all purposes under Title 26,
chapter 9-A." 20-A MRSA §1464(1).  This includes the "assumption
and continued observance of all collective bargaining agreements
. . ., which agreements continue in effect for the remainder of
their unexpired terms . . ." 20-A MRSA §1464(1)(B).  The law also
charges the RSU with bargaining for an initial or successor
agreement in any bargaining unit in which there is not a
collective bargaining agreement in effect on the operational
date. 20-A M.R.S.A. §1464(1)(C).  The plain meaning of these two
paragraphs is simply that if an agreement is in effect on the
operational date, the RSU must honor it; if none is in effect,
the RSU must bargain for one.  The statute addresses only those
two situations.  The requirement that the RSU honor agreements in
effect on the operational date reflects the Legislature's
determination that doing so would foster stable labor relations
and a smooth transition to the new organizational structure. 
Requiring the RSU to bargain a new or successor agreement when 

[end of page 2]

there is no collective bargaining agreement in effect on the
operational date merely recognizes the fact that, as of that
date, the RSU assumes all of the obligations of the public
employer under Title 26, Chapter 9-A.  
     The statutory changes made in the School Reorganization Law
do not specifically address whether the SAU or the RSU is
responsible for negotiating a successor to a collective
bargaining agreement due to expire after July 1, 2009.  The
collective bargaining statute, however, is unequivocal regarding
the obligation to bargain. Section §965(1) says "It shall be the
obligation of the public employer and the bargaining agent to
bargain collectively."  The SAU is the public employer up until
the operational date of the RSU, at which time the RSU becomes
the public employer.  The School Reorganization Law does not
alter this statutory duty to bargain.  The inescapable conclusion
under established law is that the SAU has a continuing obligation
to bargain with the bargaining agent until the SAU is dissolved;
however, this is not the end of our inquiry.
     The SAU does not have the authority to execute a contract
with an effective date that falls after the SAU ceases to exist.
While requiring the RSU to honor contracts that are in effect,
the School Reorganization Law does not require the RSU to also
honor a collective bargaining agreement negotiated by the SAU
that would not be in effect until after the SAU had been
dissolved.  If that had been the intent of the Legislature, the
statute would have stated so explicitly.  The notion of the SAU
having authority to enter into a collective bargaining agreement
that would not become effective until after the SAU ceases to
exist is so contrary to the School Reorganization Act and general
legal principles[fn]2 that drawing such an inference without any
 
     2  The general rule is that one entity can not bind a different
body to a contract if the latter is not a party to the agreement.

[end of page 3]

supporting statutory language would be inappropriate.
     It is a well-established principle of labor law that a party
cannot be bargaining in good faith if that party does not have
the authority to make an agreement.  Consequently, in the unique
circumstances presented by the implementation of the school
reorganization law, we conclude that the SAU must be relieved of
its duty to bargain the terms of a successor agreement to a
collective bargaining agreement due to expire after the SAU is
dissolved.[fn]3 
     Analytically, it seems appropriate that the duty to bargain
a successor agreement must be required of some entity; if not the
SAU, then logically it should fall on the RSU.  We have been
unable, however, to find any authority in the law for us to
impose this duty on the RSU before it becomes operational, as it
is not the public employer until that date. Thus, there is a
hiatus in the statutory duty to bargain a successor agreement
that occurs before the RSU becomes operational that only the
Legislature can address. 
     Nonetheless, the School Reorganization Law contemplates that
during the transition period, the initial RSU Board and RSU
Superintendent will work closely with the SAU boards to prepare
the RSU to become operational on July 1st.  The transitional
powers established in §1461-A require the RSU board to "complete
the budget development process and recommend a budget for
consideration by the legislative body responsible for final
budget approval and the residents of the regional school unit."
20-A MRSA §1461-A(2).  To accomplish this budget development
task, "specific duties may be assigned to existing personnel with
the approval of the employing school administrative unit." 20-A 

     3  All other statutory responsibilities related to collective
bargaining, such as administering existing agreements, remain in force
as a long as the SAU remains the public employer.

[end of page 4]

MRSA §1461-A(2).  In addition to the requirement of preparing a
budget, the RSU board "is authorized to take all other actions
provided under state law to prepare the regional school unit to
become operational on July 1st for the first operational year".
20-A MRSA §1461-A(3).  Given that personnel costs are a
significant part of any school's operational budget, we conclude
that these transition provisions authorize but do not require the
RSU to negotiate collective bargaining agreements, even though
the RSU cannot execute a collective bargaining agreement until it
becomes operational. 
     Although the RSU is not statutorily required to bargain
during the transition period, we anticipate that the RSU will be
actively involved in the negotiation process in these situations
and we encourage such involvement.  In this period, we urge the
RSU to, at a minimum, seek the assistance of the SAU in
negotiating a successor agreement.  The RSU may decide to
authorize the SAU to negotiate with the bargaining agent on its
behalf within the bargaining authority established by the RSU. 
Clearly, it is in the interests of the RSU to draw on the
knowledge and experience of the existing SAU board regarding
issues in the unit and to build on the existing relationship the
SAU has with the bargaining agent.
     
     Our conclusions in this matter can be summarized as follows:

     1. If the existing collective bargaining agreement is due to
expire before the operational date of the RSU, the SAU has a duty
to bargain for a successor agreement.  The SAU does not have the
authority to execute an agreement with an effective date after
the operational date of the RSU.
     2. If the existing collective bargaining agreement is due to
expire after the July 1st operational date of the RSU, the RSU is
authorized to bargain for a successor to that agreement before 

[end of page 5]

July 1st, but it is not statutorily required to do so.
     3.  Once the RSU becomes operational, the RSU has a duty to
bargain for an initial or successor collective bargaining
agreement in any bargaining unit in which there is no agreement
in effect.
     4.  The RSU and the SAU are encouraged to work together to
negotiate a successor to an agreement that is due to expire after
the operational date of the RSU.   
                    
     In accordance with 26 MRSA § 968(3), this ruling is advisory
only and is not subject to judicial review.

     Dated at Augusta, Maine, this 14th day of November, 2008.