Interim Order (March 21, 2014) and Status Quo Determination (May 15, 2014). 80C Appeal withdrawn.

 

	  
			DISCUSSION

     Section 964-A(2) provides that a collective bargaining
agreement's grievance arbitration provision remains in effect
after the expiration of the agreement.  A status quo determination
arises only when the parties disagree on whether a particular
provision in an expired collective bargaining agreement falls
under the static status quo doctrine and is therefore enforceable
under §964-A(2).  Once the Board makes its ruling, the arbitrator
decides whether there has been a change from what was established
in the agreement.   The question before the Board is whether the
issue at hand is a mandatory of subject of bargaining and, if so,
whether it is enforceable under the static status quo doctrine. 
The Board's determination does not resolve a grievance, it is
merely the mechanism for ruling on whether the issue is arbitrable
under § 964(2)(A).  The proper time for creating a factual record
is at arbitration, not at the Board.  
     It is also important to point out that not only does Section
964-A(2) expressly grant the Board the authority to resolve
"disputes over which provisions in an expired contract are
enforceable by virtue of the static status quo doctrine," it also
strictly limits the Board's jurisdiction.  Section 964-A(2) states:

[end of page 1] 

     All such grievances that are appealed to arbitration are
     subject exclusively to the grievance and arbitration
     process contained in the expired agreement, and the board
     does not have jurisdiction over such grievances.

     As the Board has never had jurisdiction to hear grievances,[fn]1 
we interpret this sentence as precluding the Board from taking
jurisdiction over a post-expiration unilateral change case when a
grievance on the same matter has been appealed to arbitration. 
Holding an evidentiary hearing on a status quo determination runs
the risk of turning the inquiry into a post-expiration unilateral
change case.  We conclude, therefore, that holding an evidentiary
hearing on this status quo determination is inappropriate.
     The Maranacook Area Schools Association has until Monday,
April 14, 2014, to file a written brief on the substantive matter
raised in the petition.  The issue is whether, after the expiration
of the agreement, the static status quo doctrine precludes the
movement of teachers up one level of the salary scale pursuant to
Article 16, Section G of the expired collective bargaining
agreement. 
     The Board will make its determination on the basis of written
argument only.

Dated at Augusta, Maine, this 21st day of March 2014
     
                                MAINE LABOR RELATIONS BOARD


                                
                                /s/___________________________
                                Katharine I. Rand
                                Chair


     1 See State of Maine v. MSEA, 499 A.2d 1228, 1239 (Oct. 29, 1985) (The
MLRB has jurisdiction over prohibited practices complaint, but not over
grievances.)

[-----------end of page 2; end of Interim Order--------]


STATUS QUO DETERMINATION:
 
 
 

 

 
 On December 12, 2013, the RSU No. 38 Board of Directors
filed a petition for a status quo determination under 26
M.R.S.A. §964-A(2).  Section 964-A(2) provides that after the
expiration of a collective bargaining agreement, the grievance
arbitration provision remains in effect for those provisions
that are enforceable pursuant to the static status quo doctrine. 
Section 964-A(2) requires the Board to resolve disputes over
which provisions in an expired contract are enforceable by
virtue of the static status quo doctrine.  The RSU No. 38 Board
of Directors and the Maranacook Area Schools Association
disagree on whether the provision in the expired agreement
awarding salary step increases to certain teachers is
enforceable under §964-A(2).
 
     Following the receipt of the petition, the Executive
Director contacted the parties to arrange a schedule for
submitting a response and written argument.  The RSU No. 38
Board of Directors was represented by Bruce Smith, Esq., while
the Association was represented by Shawn Keenan, Esq.  In its
response, the Association not only asserted that continuation of

[end of page 1

the step increases was required to maintain the static status
quo, it further questioned the Board's jurisdiction to hear the
matter.  On January 31, 2014, the School Board submitted its
written argument addressing both the jurisdictional matter and
the substantive issue regarding the step increases.  The
Association, now represented by Howard Reben, Esq., filed its
brief on March 12, 2014, stating that "despite the statutory
ambiguity, the Respondents concede the jurisdictional issue." 
That brief did not address the question concerning continuation
of the step increases but, rather, indicated that the
Association was expecting an evidentiary hearing on the matter. 
On March 21, 2014, the Board Chair issued an Interim Order
holding that an evidentiary hearing was not appropriate for a
status quo determination and ordering the Association to submit
written argument on the substantive issue before the Board.  The
Association's argument was filed on April 24, 2014, and the
School's response was filed on May 8, 2014.
 
                           JURISDICTION
 
     A status quo determination arises only when a request for
arbitration has been filed and the parties disagree on whether a
particular provision in the expired collective bargaining
agreement is enforceable by virtue of the static status quo
doctrine.  As the petitioner and the respondent disagree on
whether the provision in the expired agreement regarding step
increases is within the scope of the static status quo doctrine,
the Board has jurisdiction to make this determination. 

                        PROCEDURAL MATTERS
 
     In its written argument, the Association requested that the
Board Chair recuse herself from the case because her employment
as a "management attorney" allegedly created a conflict of 

[end of page 2]

interest.  As is the case for every member of the Board,
potential conflicts of interest are addressed prior to the
member's appointment to the panel.  In the present matter, the
Chair's employment raises no conflict of interest; therefore,
recusal is not required. 
 
     A second procedural issue raised by the Association was the
Board's decision that an evidentiary hearing is not appropriate
in this status quo determination.  As stated in the Interim
Order of March 21, 2014, 

     . . . The question before the Board is whether the     
     issue at hand is a mandatory subject of bargaining
     and, if so, whether it is enforceable under the 
     static status quo doctrine.  The Board's determina-
     tion does not resolve a grievance, it is merely the
     mechanism for ruling on whether the issue is arbi-
     trable under §964-A(2).  The proper time for creating
     a factual record is at arbitration, not at the Board.

     The Interim Order further explained that the express 
language of §964-A(2) reiterates the fact that the Board         
does not have jurisdiction over grievances, thereby providing
further support for the Board's conclusion that it would be
inappropriate to hold an evidentiary hearing in this matter.  
A copy of the expired collective bargaining agreement is all
that is needed to make a status quo determination.
 
                            DISCUSSION
     In making a status quo determination, the Board must
address two questions:  First, whether the provision of the
collective bargaining agreement at issue is a mandatory subject
of bargaining, and second, whether enforcement of that provision
is precluded by the Law Court's holding in Board of Trustees of
the University of Maine System v. Associated COLT Staff, 659 

[end of page 3]

A.2d 842 (May 26, 1995)("COLT").  
 
     With respect to the first question, the mandatory subjects
of bargaining are defined in the Municipal Public Employees
Labor Relations Law as "wages, hours, working conditions and
contract grievance arbitration."  26 M.R.S.A. §965(1)(C).  At
issue here is the provision in the expired collective bargaining
agreement that states, "Employees shall move up one level of the
salary scale each year."  Clearly, this provision, whether
called a step increase or a salary escalator, is a component of
wages and is therefore a mandatory subject of bargaining.
 
     The second question of the analysis in a status quo
determination is whether enforcement of the provision at issue
is precluded by the Law Court's holding in COLT.  In COLT, the
Law Court held that the duty to maintain the status quo does not
include the obligation to continue to pay step increases when
there is no express language to do so in the expired agreement. 
The Law Court overturned the Board's holding that step increases
must be continued as part of the "dynamic status quo."  The Law
Court explained that the Board's holding "changes, rather than
maintains, the status quo."  COLT, 659 A.2d at 846.  The
reference to the "static status quo" in §964-A(2) makes it clear
that the holding in COLT must be taken into account in a status
quo determination.  See IAFF Local 1650, Augusta Fire Fighters
v. City of Augusta, No. 11-03SQ at (Dec. 15, 2011), aff'd, City
of Augusta v. Maine Labor Relations Board et al., 2013 ME 63.
      
     We conclude that the salary increase provision stating 
that employees shall move up one level of the salary scale each
year is not enforceable pursuant to the static status quo
doctrine.  This issue is a matter of law that was directly 

[end of page 4]

addressed by the Law Court in COLT.  The provision in the
parties' expired collective bargaining agreement for annual
movement up the salary scale is indistinguishable from the step
increases that the Law Court disallowed in COLT.[fn]1 Enforcement of 
the salary escalator provision in a grievance filed under §964-
A(2) is therefore precluded by the Law Court's holding in COLT.

Dated at Augusta, Maine, this 15th day of May 2014, 
  
 

 

1  Contrary to the Association's assertion, the fact that the RSU 38
salary increase provision gives credit for teaching experience outside RSU 38
is irrelevant to the analysis.

[end of page 5]