MAINE LAW COURT Decision affirming Board Decision No. 15-19.
      2018 ME 29
      March 1, 2018
      HUMPHREY, J.
       [¶1] School Administrative District 3 Education Association MEA/NEA
(the Association) appeals from a judgment of the Superior Court (Kennebec
County, Murphy, J.) on consolidated Rule 80C appeals from the decision of the
Maine Labor Relations Board (MLRB) on the Association's prohibited practice
complaint.[fn]1  The Association argues that the MLRB erred when it held that the
120-day notice provision in 26 M.R.S. § 965(1)(2017) applies to the request for 
impact bargaining in this case.  We disagree and affirm the judgment.

   * Although not available at oral argument, Chief Justice Saufley participated 
in the development of this opinion. See M.R.App.P.12(a)(Tower 2016)("A qualified 
justice may participate in a decision even though not present at oral argument."), 
replaced with M.R.App.P.12(a)(2)(effective for appeals commenced on or after Sept. 1, 2017).

[fn]1  Both the MLRB and the Rural School Unit 3 Board of Directors are appellees in this matter.

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                            I. BACKGROUND

     [¶2] Regional School Unit 3 (RSU 3) is a rural school district serving
towns that span a large geographic area in Waldo County.  The Board of
Directors of RSU 3 (the School Board) is a public employer as defined in
26 M.R.S. § 962(7)(2017).  The Association is the recognized bargaining agent
within the meaning of 26 M.R.S. § 962(2)(2017)for employees of the School 
Board, including classroom teachers.

     [¶3] At the beginning of the 2012-2013 school year, RSU 3 transitioned
from a system of double bus runs to transport the students in the school district
to a system of single bus runs. This cost-saving measure resulted in students at
the outlying elementary schools being dropped off at school earlier in the 
morning and picked up later in the afternoon than they had been under the
prior system. In order to accommodate this change, teachers at the outlying
schools had to work longer hours than their colleagues at other schools in the
district. The school Board and the Association agreed to discuss the effects of
the change after the system of single bus runs was implemented.

     [¶4] In early January 2013, the Association informed the School Board of
its demand to enter into "impact bargaining"[fn]2 regarding the change in working

[fn]2  The Municipal Public Employees Labor Relations Law (MPELRL) requires that public 
employers and bargaining agents bargain collectively on certain mandatory subjects, 
including wages, hours,

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conditions due to the transition to the system of single bus runs.[fn]3  The School
Board and the Association engaged in impact bargaining over the change in
working conditions for the affected teachers on three occasions in February, 
March, and April 2013.  During these bargaining sessions, the Association and
the School Board discussed compensation for the affected teachers, but the
School Board opposed that approach.[fn]4  By the end of the third meeting, the
parties had yet to come to an agreement.

     [¶5] After the start of the new school year, the Association submitted a
proposal to the School Board that included a request for $1,500 in

[fn 2, cont'd.] and working conditions.  26 M.R.S. §§ 964-65 (2017). Section 965(1) 
provides that parties participating in collective bargaining must meet at reasonable 
times and within ten days after receipt of a request for collective bargaining. 26 
M.R.S. § 965(1). We have recognized that the requirements for negotiations under 
section 965(1) apply not only to negotiations for contracts directly addressing 
wages, hours, and working conditions, but also to other decisions or events that are 
not by themselves subject to bargaining but would affect those mandatory subjects of 
bargaining. See City of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1134-35 (Me. 
1982). This process is referred to as "impact bargaining" or "effects bargaining." 
See AFSCME Council 93 v. Penobscot Cty. Comm'rs, No.15-14 at 11 (Me. Labor Relations 
Bd. Jan. 5, 2016); Mt. Abram Teachers Ass'n v. MSAD No. 58, No. 15-09 at 23 (Me. 
Labor Relations Bd. July 29, 2015).

[fn]3 The MLRB made a finding that "[i]n the beginning of January of 2013, the 
Association informed the School Board of its demand to enter into impact bargaining 
regarding the change in working conditions due to the shift to the single bus run, 
which resulted in an increase to the teacher workday for teachers in certain schools 
in the district."  Representatives of the Association and of the School Board testified 
to the contents of this January 2013 letter from the Association, but it is not in the

[fn]4 The Association and the School Board also discussed other options to provide the 
affected teachers with relief, including assigning educational technicians to supervise 
the students, additional break time for the teachers during the lunch period, a change 
in the bus schedule, and a change in the central complex hours to increase professional 
development time for the affected teachers.

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compensation for each of the affected teachers. The School Board rejected the
Associations's proposal, and the Association filed a request for mediation with
the MLRB in December 2013.

     [¶6] Before the mediation took place, the Association requested to
collectively bargain a successor contract between it and the School Board
because the parties' existing contract was set to expire in August 2014. During
the negotiations for the successor contract, the parties agreed on uniform
working hours for teachers throughout the district, taking into account the
different schedules that resulted from the system of single bus runs. The
successor contract, which covered the period from September 1, 2014, to
August 31, 2017, was signed on April 1, 2014.

     [¶7] The parties engaged in mediation sessions regarding the impact
bargaing matter on April 8 and May 7, 2014, but failed to come to an
agreement. On July 3, 2014, the Association filed a request for fact-finding with
the MLRB and the School Board. The Executive Director of the MLRB requested
that the parties select their representatives for a fact-finding panel, but only the
Association responded to this request. In October 2014, the School Board 
communicated to the Association and the MLRB that it was unwilling to 
participate in fact-finding for the impact bargaining matter. In January 2015,

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the Executive Director of the MLRB informed the parties that, in light of the 
School Board's October letter, he would not schedule a fact-finding proceeding.

     [¶8] Pursuant to the Municipal Public Employees Labor Relations Law
(MPELRL), the Association filed a prohibited practice complaint with the MLRB
against the School Board, see 26 M.R.S. § 968(5)(2017), alleging that the School
Board violated 26 M.R.S. § 964(1)(E)(2017) and § 965(1) when it refused to
participate in mediation and fact-finding procedures with respect to the effect
of the new bus system. In its answer, the School Board raised a number of 
defenses, including that the Association failed to provide the School Board with
notice "at least 120 days before the conclusion of the current fiscal operating
budget" that it intended to negotiate matters involving the appropriation of
money during the impact bargaining sessions, as required by 26 M.R.S.
§ 965(1).

     [¶9] In its decision, the MLRB rejected all of the School Board's
affirmative defenses except for the alleged violation of the 120-day notice
provision. The MLRB determined that the Association failed to comply with the
120-day requirement because aspects of the impact bargaining involved
potential appropriations of money, and concluded that

     the School Board was not legally obligated to bargaing over matters
     requiring the appropriation of money. The failure of the

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     Association to provide the 120-day notice had no impact, however,
     on the School Board's legal obligation to continue bargaining over
     non-monetary issues. Consequently, to the extent that the School
     Board has refused to participate in fact finding over non-monetary
     issues, it has violated §965(1)(E).[fn]5

     [¶10] Both parties appealed to the Superior Court pursuant to M.R.
Civ.P.80C and 26 M.R.S. § 968(5)(F)(2017).  The School Board challenged the
MLRB's conclusion that it violated 26 M.R.S. § 964(1)(E) and § 965(1) by failing
to participate in fact-finding concerning the impact of the new busing system.
The Association challenged the MLRB's determination that it was required to
provide a 120-day notice, arguing that the 120-day notice provision in section
965(1) does not apply to impact bargaining.

     [¶11] The Superior Court consolidated the appeals and affirmed the
decision of the MLRB. The Association timely appealed to this Court the MLRB's
determination that it was required to provide the 120-day notice.[fn]6  M.R.
App.P.2(b)(3)(Tower 2016);[fn]7 M.R.Civ.P.80C(n).

[fn]5  As a remedy for the School Board's having refused to participate in fact-
finding over nonmonetary issues, the MLRB separately ordered that "[t]he Association 
will have 30 days from the date of this order to provide the School Board with a 
written request to initiate fact finding, should it choose to do so."

[fn]6  The School Board did not appeal the MLRB's determination that it had 
violated 26 M.R.S. § 964(1)(E) and § 965(1).

[fn]7  This appeal was commenced before September 1, 2017, and therefore the 
restyled Maine Rules of Appellate Procedure do not apply. See M.R.App.P.1.

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                                II. DISCUSSION

     [¶12] The focus of this appeal is whether the 120-day notice requirement
in 26 M.R.S. § 965(1) applies to impact bargaining where the association's
request requires additional appropriations by the municipality or county. If we
conclude that the 120-day notice provision applies, we must then determine
whether the MLRB erred in determining that the Association did not comply
with that requirement.

      [¶13] "In an appeal from a Superior Court judgment entered upon 
intermediate appellate review of a Board decision, we review the Board's
decision directly for error of law, abuse of discretion, or clear error." City of
Augusta v. Me. Labor Relations Bd., 2013 ME 63,¶ 14, 70 A.3d 268 (quotation
marks omitted). "We accord the Board considerable deference in construing
the MPELRL because the Board is charged with its enforcement."  Minot Sch.
Comm. v. Minot Educ. Ass'n, 1998 ME 211, ¶ 6, 717 A.2d 372 (quotation marks

     [¶14] Statutory interpretation is a question of law that we review
de novo.  Town of Eagle Lake v. Comm'r, Dep't of Educ., 2003 ME 37, ¶ 7,
818 A.2d 1034.  In questions of statutory interpretation, "we first look to the
plain language of the provisions to determine their meaning. If the language is

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unambiguous, we interpret the provisions according to their unambiguous
meaning unless the result is illogical or absurd. If the plain meaning of a statute
is ambiguous--that is, susceptible of different meanings--we will then go on to
consider the statute's meaning in light of its legislative history and other indicia
of legislative intent." Mainetoday Media, Inc. v. State, 2013 ME 100, ¶ 6, 82 A.3d
104 (citations omitted)(quotation marks omitted). When a dispute involves a
board or agency's interpretation of a statute it administers, "the agency's
interpretation, although not conclusive, is entitled to great deference and will
be upheld unless the statute plainly compels a contrary result." Town of Eagle
Lake, 2003 ME 37, ¶ 8, 818 A.2d 1034 (quotation marks omitted).

A.   Interpretation of 26 M.R.S. § 965(1)

     [¶ 15] The Association argues that the MLRB's determination that the
120-day notice requirement applies to impact bargaining is contrary to the
language of section 965(1), public policy, and long-established past practice
and case law. In contrast, the School Board and the MLRB contend that the
statutory language clearly and unambiguously requires that bargaining agents
comply with the 120-day notice provision whenever appropriations of money
are at issue, regardless of whether the parties are engaging in impact 
bargaining or other types of collective bargaining. We agree with the School

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Board and the MLRB that the 120-day notice requirement applies whenever the
parties engage in any type of collective bargaining, including impact bargaining,
when the subject of the bargaining involves the appropriation of money by the

     [¶16] The first step in our analysis is to look at the plain language of the

     Section 965 (1) states in whole:

     1. Negotiations. It is 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, as long as the parties have not
          otherwise agreed in a prior written contract. This obligation
          is suspended during the period between a referendum
          approving a new regional school unit and the operational
          date of the regional school unit, as long as the parties meet at
          reasonable times during that period;

          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 may
          be compelled to agreee to a proposal or be required to make a
          concession and except that public employers of teachers
          shall meet and consult but not negotiate with respect to
          educational policies; for the purpose of this paragraph,
          educational policies may not include wages, hours, working
          conditions or contract grievance arbitration;

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          D. To execute in writing any agreements arrived at, the term 
          of any such agreement to be subject to negotiation but may
          not exceed 3 years; and

          E. To participate in good faith in the mediation, fact-finding
          and arbitration procedures required by this section.

     Whenever wages, rates of pay or any other matter requiring
     appropriation of money by any municipality or county are included
     as a matter of collective bargaining conducted pursuant to this 
     chapter, it is the obligation of the bargaining agent to serve written
     notice of request for collective bargaining on the public employer at
     least 120 days before the conclusion of the current fiscal operating 
     budget, except that this requirement is waived in the event that a 
     bargaining agent of a newly formed bargaining unit is recognized
     or certified during the period not more than 120 days nor less than 
     30 days prior to the end of the fiscal period. The 120-day notice
     requirement is also waived with respect to regional school units
     formed pursuant to Title 20-A, chapter 103-A, subchapter 2 prior
     to their first year of operation.

26 M.R.S. § 965(1)(emphasis added). 

     [¶17] We have previously held that impact bargaining is governed by
section 965(1)(A)-(E), acknowledging, in a case involving an alleged unlawful
discharge of union employees, that "[t]he effects of a discharge have been held
to be a subject of mandatory bargaining" even though the discharge itself would
not be subject to collective bargaining under section 965(1).[fn]8 See City of Bangor

[fn]8  The MLRB has also reached this same conclusion. For example, the MLRB determined 
that, "[d]espite the fact that . . . the Employer was not obligated to negotiate the 
substance thereof, Section 965(1)(C) requires that, upon receipt of a timely request 
therefor, the Employer must negotiate over the impact of the implementation of such 
[policy] upon the mandatory subjects of bargaining." Saco 

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v. AFSCME, Council 74, 449 A.2d 1129, 1134 (Me. 1982) (emphasis added)
(quotation marks omitted); see also City of Bangor v. Me. Labor Relations Bd.,
658 A.2d 669, 671 (Me. 1995) ("It is well established that 26 M.R.S.A. § 965
requires public employers to bargain over the impact of even non-negotiable
changes on mandatory subjects of collective bargaining.").

     [¶18] Because the requirements in subsections (A) through (E) of
26 M.R.S. § 965(1) apply to impact bargaining, we conclude that the final
paragraph of that section, which establishes the 120-day notice requirement,
also applies to impact bargaining when the appropriation of money by the
municipality or the county may be required. There is nothing in the statute's
plain language that would exclude only the 120-day notice requirement of
section 965(1) from being applied to impact bargaining when the impact
bargaining may involve the appropriation of money.[fn]9

[fn 8, cont'd.] Valley Teacher Ass'n v. Me.Sch.Admin.Dist#6, Nos. 85-07 and 85-09 
at 16 (Me. Labor Relations Bd. March 14, 1985)(emphasis added).

[fn]9  The Association argues that the language of the 120-day notice provision--
triggered only by matters "requiring appropriation of money by any municipality or 
county"--limits its application to collective bargaining and not impact bargaining. 
See 26 M.R.S. § 965(1)(emphasis added). According to the Association, the Legislature 
would have used the broader term "public employer" if it intended the provision 
to apply to impact bargaining matters, because most impact bargaing matters can be
resolved by the public employer and the bargaining agent without requiring the 
appropriation of money by the municipality. This argument is unpersuasive. Issues 
subject to impact bargaining are no less likely to required appropriations of money 
by a municipality than are contract issues.

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B.   Application of the 120-Day Notice Requirement to This Case

     [¶19] Having concluded that the 120-day notice requirement of section
965(1) applies to the impact bargaining in this case, we must decide whether
the MLRB erred in determining that Association failed to comploy with that

     [¶20] In its decision, the MLRB made a finding that the "Association did
not provide the School Board with 120 days' notice, pursuant to Title 26,
§ 965(1)."  The MLRB's "finding on questions of fact are final unless clearly
erroneous." Minot Sch. Comm., 1998 ME 211, ¶ 6, 717 A.2d 372 (quotation
marks omitted). Pursuant to the clear error standard,

     [a]n appellate court can reverse a finding of fact only where (1)
     there is no competent evidence in the record to support it, or (2) it
     is based upon a clear misapprehension by the trial court of the
     meaning of the evidence, or (3) the force and effect of the evidence,
     taken as a total entity, rationally persuades to a certainty that the
     finding is so against the great preponderance of the believable
     evidence that it does not represent the truth and right of the case. 

Id. (quotations marks omitted).

     [¶21] The parties agree that the Association provided the Board with a
written request to impact bargain the new bus system in early January 2013.
Although the Association's request was in writing and timely, the MLRB found
the notice to be deficient. According to the MLRB, "it was not the timing that

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was the problem, it was the fact that the January 2013 impact bargaining
request did not satisfy the 120-day notice requirement because there was no
reference to bargaining over matters requiring the appropriation of money."

     [¶22] Whether the 120-day notice provision requires specific content is
a question of statutory interpretation.  We conclude that the language is not
ambiguous in this regard. See Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶¶ 19-21,
107 A.3d 621.

     [¶23] "The purpose of the 120-day rule is to prevent the unbalancing of
municipal budgets by increases in costs that were not foreseen and provided
for at the time the tax rate was determined." Council 74, AFSCME v. Inhabitants
of the Town of Brunswick, No. 85-08 at 5 (Me. Labor Relations Bd. Apr. 19,
1985); see also Me. Teachers Ass'n v. Saco Sch. Comm., No. 84-10 at 3 (Me. Labor
Relations Bd. Mar. 9, 1984)("The obvious intent of [the 120-day notice] rule is
to give public employers adequate notice that financial items will be brought to
the bargaining table so that provision for these items can be made in the next
fiscal operating budget."). Requiring that the written request to bargaing be
specific enough to provide notice that funds may need to be appropriated is
consistent with the language and with the purpose of the 120-day notice
provision. See Dickau, 2014 ME 158, ¶ 22, 107A.3d 621 (explaining that, when

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conducting a plain language analysis, we "examine the entirety of the statute,
giving due weight to design, structure, and purpose as well as to aggregate
language." (quotation marks omitted)).

     [¶24] Because the statute unambiguously requires the bargaining unit--
here, the Association--to serve written notice referencing its request to 
bargain over matters requiring the appropriation of money, the next question
is whether the MLRB erred in finding that no such notice had been given. Even
though the actual January 2013 letter is not in the record, there is evidence to
support the MLRB's determination that the letter did not include reference to
matters involving the appropriation of money. During the MLRB hearing,
RSU 3's superintendent articulated her understanding of the 120-day notice
requirement as "a notice signifying that the association is seeking to open the 
contract to talk about salary and benefits and those kinds of things" before she
stated that the Shcool Board did not receive a 120-day notice from the
Association for the impact bargaining matter. The Association's representative
aso testified to the content of the January 2013 letter. When asked if it was the 
Association's "intention to ever ask for money for the teachers" in the impact
bargaining sessions, the Association's representative responded in the 
negative. Representatives for both the Association and the School Board

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explained that the Association's January 2013 letter pertained to the length of
the teacher workday and that compensation was not raised until the two
parties met in person to impact bargain.

     [¶25] Because there is competent evidence in the record that the
Association did not properly notify the School Board in writing of its intention
to bargain over matters requiring the appropriation of money, the MLRB did
not commit clear error when it found that the Association did not provide
adequate notice to satisfy 26 M.R.S. § 965(1). See Minot Sch. Comm., 1998 ME211, ¶ 6, 
717 A.2d 372.

     The entry is:

                  Judgment affirmed.

Andrew T. Mason, Esq. (orally), Maine Education Association, Augusta, for
appellant SAD 3 Education Association

S. Campbell Badger, Esq. (orally), and Laurel A.V. McClead, Esq., Drummond
Woodsum & MacMahon, PA, Portland, for appellee RSU 3 Board of Directors

Lisa Copenhaver, Esq. (orally), Maine Labor Relations Board, Augusta, for
appellee Maine Labor Relations Board

Kennebec Superior Court docket numbers AP-2016-9 and AP-2016-12

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