Mountain Valley Education Association v. MSAD #43 Board of Directors, MLRB
No. 93-15 (Aug. 19, 1993), aff'd, No. CV-93-437 (Me. Super Ct., Ken. Cty.,
Apr. 8, 1994), aff'd, 655 A.2d 348 (Me. 1995)

MAINE SUPREME JUDICIAL COURT                       Reporter of Decisions
						   Decision No. 7159
						   Law Docket No. Ken-94-452




			    Argued November 15, 1994
			    Decided March 2, 1995


     Mountain Valley Eduation Association ("the Association") appeals from
ajudgment entered in the Superior Court, (Kennebec County, Alexander, J.)
affirming a decision of the Maine Labor Relations Board ("the Board")
upholding Maine School Administrative District No. 43's ("SAD 43")
unilateral implementation of its last best offer on wages and insurance.  The
principal issues on appeal are whether the Municipal Public Employees
Labor Relations Law (the Act), 26 M.R.S.A.  961-974 (1988 & Supp.
1994), permits unilateral implementation of a public employer's last best
offer following an impasse in bargaining and whether the Board's finding of
impasse is clearly erroneous.  We affirm the judgment of the Superior Court.


     The facts as found by the Board may be briefly summarized as follows:
The Association and SAD 43 began negotiations in June 1990 for an initial
contract for the benefit of a combined unit of teacher aides and assistants.[fn]1
The negotiations were long and arduous, with the parties participating in
three mediation sessions and in factfinding.  Thereafter, the parties
submitted several issues including wages, health insurance, and duration of
the contract to arbitration.  Following a hearing, the arbitration panel issued
a report on July 9, 1992 making non-binding recommendations on wages,
retirement payment, and health insurance, but imposing a two-year duration
of contract for the school years 1991-92 and 1992-93.

     In September of 1992, SAD 43 sent a proposal on wages and insurance
to the Association.  The terms were an improvement over those previously
proposed by SAD 43 but not in complete accord with the arbitrators'
recommendations.  The parties met, but the Association rejected the offer
and made counterproposals.  In November of 1992, SAD 43 notified the
Association of its last best offer on wages and insurance.  The Association
immediately filed for mediation.  SAD 43 thereafter implemented its wage
and insurance proposals.[fn]2

     1 The combined bargaining unit came about after the Rumford School Department
joined the Mexico schools in MSAD 43.  At the time of the merger, the combined group of aides
and the combined group of assistants each decided which of the pre-existing wage and benefit
packages would apply pending negotiation of a new collective bargaining agreement.  The aides
selected the lower pay and paid health insurance that had prevailed in Mexico, and the
assistants chose the higher pay without health insurance that had prevailed in Rumford.

     2 The Board's summary of SAD 43's last best offer, in comparison with the arbitrator's
recommendation, is as follows:

     "For aides.  [SAD 43] proposed a step increase plan and two across-the-board
     increases:  the first was higher than the arbitrators had recommended, but for a


     The Association filed a prohibited practice complaint with the Board
alleging that SAD 43 violated the Act by unilaterally implementing its
proposal on wages and insurance and by failing to observe the arbitrators'
binding determination on the duration of the agreement. The Board ruled
that SAD 43 committed no violation of the Act by unilaterally imposing its
wage and insurance proposals.  It held that SAD 43 did violate the Act by
refusing to implement the binding arbitration award on the duration of the
agreement.  The Association, pursuant to 26 M.R.S.A.  968(5)(F), filed a
petition for review of final agency action.  The Superior Court affirmed the
Board's order.  The Association now appeals.

     I.  Unilateral Implementation of Last Best Offer Following Impasse

     We review the Board's decision directly, State v. Maine State
Employees Ass'n, 538 A.2d 755, 757 (Me. 1988), for error of law, abuse of
discretion, or clear error.  See City of Bangor v. American Fed'n of State,
City, & Mun. Employees, 449 A.2d 1129, 1134, 1136-37 (Me. 1982); 26
M.R.S.A.  968(5)(F).  As the agency charged with enforcement, we accord
the Board considerable deference in construing the Act.  Lundrigan v. Maine

     shorter time period (6 months of retroactivity rather than a year).  For the
     second year of the contract, it offered the across-the-board increase that the
     arbitrators had recommended.  For assistants, who had not been on a step
     increase plan, the employer offered a step increase plan retroactive for six
     months, rather than the one year that the arbitrators had recommended.  The
     employer did not accept the recommendation for an across-the-board increase
     for the second year, but offered a 2 percent raise for any assistant not eligible for
     a step increase.
     "While it did not adopt the arbitrators' recommendation on health insurance, it
     did make some changes in its previous offer.  It increased the caps (premium
     amounts to be paid by the employer) for single and two-person coverage (but 
     reduced the cap for family coverage); and it offered to contribute to a higher-
     coverage plan than it had offered previously."


Labor Relations Board, 482 A.2d 834, 836 (Me. 1984).  The Board's findings on
questions of fact are final unless clearly erroneous.  26 M.R.S.A.  968(5)(F).
     Maine law as well as federal law imposes the obligation to bargain in
good faith as part of the statutory definition of collective bargaining.  26
M.R.S.A.  965(1)(C); 29 U.S.C.A.  158(d) (1973 & Supp. 1994).  The
National Labor Relations Act (NLRA) requires employers and employees'
representatives in the private sector to bargain in good faith with respect to
the mandatory subjects of bargaining; namely, "wages, hours, and other
terms and conditions of employment," 29 U.S.C.A.  158(d).  In order to
support the bargaining process and prevent it from being circumvented or
disparaged, federal law has long been interpreted to prevent either party
from unilaterally changing wages, hours or working conditions.  See Litton
Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991), NLRB v. Katz, 369 U.S.
736, 743 (1962); NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153,
1157, 1161-62 (D.C. Cir. 1992).  Thus, while bargaining, and before
impasse, a private employer is prevented from "going over the head" of the
bargaining agent by unilaterally increasing or decreasing wages.  The parties
are required to maintain the status quo while bargaining, and this principle
applies both to negotiations before an initial contract and to post-expiration
negotiations for a new contract.  See Litton Fin., 501 U.S. at 198.  Here, in
Maine, the Board adopted the rule against unilateral changes with respect to
public sector bargaining, see, e.g., Easton Teachers Ass'n v. Easton Sch.
Comm., No. 79-14, at 3-5 (Me. L.R.B. March 13, 1979), and we have upheld
the Board's use of this rule, see Lane v. Board of Dir. of Me. Sch. Admin. Dist.


No. 8, 447 A.2d 806, 809-810 (Me. 1982); State v. Maine Labor Relations Bd.,
413 A.2d 510, 515 (Me. 1980).

     In 1978, the Board adopted from federal labor law the impasse
exception to the rule against unilateral change.  Maine State Employees
Ass'n v. State, No. 78-23, at 4 (Me. L.R.B. July 15, 1978,), aff'd sub nom. State
v. Maine Labor Relations Bd., 413 A.2d 510 (Me. 1980).  This exception
allows a party to unilaterally implement its last best offer when negotiations
have reached a bona fide impasse.[fn]3  See Litton, 501 U.S at 198: McClatchey
Newspapers, 964 F.2d at 1157, 1164-65: Easton, No. 79-14, at 4-5.  Once
the parties have in good faith exhausted the prospects of reaching an
agreement, unilateral change that is reasonably comprehended within the
pre-impasse proposals no longer violates the Act.  After impasse, however,
the duty to bargain is not extinguished.  Rather it is temporarily suspended
until changed circumstances indicate that the parties are no longer
inalterably deadlocked. See Auburn Firefighters Ass'n Local 797 v. City of
Auburn, No. 89-01, at 23 (Me. L.R.B. March 31, 1989); see also McClatchy
Newspapers, 964 F.2d at 1164-65.

     Notwithstanding the similarities with federal law, Maine law differs in
at least one respect -- impasse can not occur until specified forms of
intervention have been exhausted.  Public employees in Maine, unlike
employees in the private sector, do not have the right to strike or engage in
work stoppages, 26 M.R.S.A.  964(2)(C).  Having eliminated the most

     3 0ther exceptions to the rule prohibiting unilateral changes are recognized, but these
are not relevant to the present discussion.  See Lane 447 A.2d at 810 n.2; Easton, No. 79-14, at 5.

common form of impasse resolution procedure, Maine law adds to the
definition of good faith bargaining the obligation to participate in mediation,
factfinding, and arbitration procedures.  26 M.R.S.A.  965(1)(E).  These
"peaceful" third-party intervention procedures are intended as substitutes
for strikes and work stoppages and are designed to provide escalating
pressure on both parties to produce a voluntary settlement.  See Raymond G.
McGuire & Bryan M. Dench, Public Employee Bargaining Under the Maine
Municipal Public Employees Labor Relations Law:  The First Five Years, 27
Me. L. Rev. 107-09, 115 (1975).  The final step, arbitration, is binding on all
issues except the important subjects of wages, insurance, and pensions, for
which it is advisory only.  26 M.R.S.A.  965(4).  This diluted form of
arbitration brings pressure to bear on the employer, while preserving for
public officials the prerogatives of public management, fiscal control, and
lawmaking.  See id. at 115.  In recognition of Maine's unique scheme of
statutory procedures,[fn]4 the Board ruled in 1989 that, absent extraordinary
circumstances, it would thereafter find an employer's implementation of a
last best offer prior to completion of requested impasse resolution
procedures to constitute a per se violation of the obligation to bargain in
good faith.  Auburn Firefighters, No. 89-01, at 21-24.  The issue in the
present case is whether, following completion of these procedures, and
after impasse, the Act permits an employer to unilaterally impose its last
best offer.  We find no error in the Board's construction of the statutory duty

     4 The Act's requirement for all three techniques of impasse resolution, although not
unprecedented. was not the usual path in public sector labor law when it was enacted.  Id. at


to bargain in good faith.

     The Association asked the Board to abandon the impasse exception
and argues before us that the Act provides an alternative that is sufficient to
resolve any impasse that remains after nonbinding arbitration.  The
Association argues that the statute expressly provides that the parties may
jointly agree to binding arbitration even on the subjects of salaries, pensions,
and insurance.  26 M.R.S-A.  965(4).  See Maine Teachers Ass'n v. Sanford
Sch. Comm., No. 81-55, at 3-5 (Me. L.R.B. Oct. 7, 1981).  If the parties
refuse this option, the Association contends that they are obliged to
continue to negotiate until they reach agreement.  In the interim they are
required to preserve the status quo and are prohibited from making any
unilateral change.  Even if we recognize that the parties may jointly agree to
binding arbitration pursuant to section 965(4), and thereby achieve finality,
that same section explicitly prohibits compelled binding arbitration for
wages, salaries, and insurance.  The Legislature imposed the duty to bargain
on public employers, but it also granted them the power not to agree.  We
agree with the Board that in this regard, the balance was premised on a
legislative determination that public employers ultimately retain a significant
measure of control over their budgets.  Typically, public employment
budgets require funding by a legislative body.  Given the involvement of the
public fisc, we agree with the Board that the Legislature neither expressly
nor implicitly established the voluntary abdication of the employer's
responsibility to control public expenditures as the ultimate solution to an

     The Association next argues that a unilateral change, even if made
after exhaustion of the statutory procedures, frustrates the Act's policy that
"neither side shall be compelled to agree to a proposal or be required to
make a concession."  26 M.R.S.A.  965(1)(C).  Along the same lines, the
Association contends that if the Board cannot impose wage terms on parties
under its remedial authority, Caribou Sch. Dep't v. Caribou Teachers Ass'n,
402 A.2d 1279 (Me. 1979), neither can SAD 43 impose concessions on its
employees without their agreement.  Both arguments fall for the same
reason.  In Caribou, we found that the Board, by ordering retroactive
payment of wage and benefit increases, was making a contract for the
parties, something that it did not have the authority to do.  Id, at 1285-87.
We supported our decision with federal case law holding that the National
Labor Relations Board's remedial powers are limited by the effect of the
provision that the obligation to bargain in good faith does not compel either
party to agree to a proposal or require the making of a concession.  Id. at
1285.  The Association confuses the making of a contract with the unilateral
implementation of a last best offer during a period in which no contract
exists.  As we explained in Lane, the prohibition against unilateral change
after expiration of a collective bargaining agreement is not based on contract
law, but rather "on the principle that unilateral alterations of the collective
bargaining agreement are in contravention of the statutory duty to bargain in
good faith."  447 A.2d at 810.  The Association has neither been compelled
to agree to SAD 43's proposal, nor, by receiving less of an increase than it
sought, has it been required to make a concession within the meaning of


section 965(1)(C).  Rather, the effect of the unilateral increase after impasse
is to create a new status quo from which the parties must bargain once the
duty to bargain is no longer dormant.

     The Board committed no error in ruling that SAD 43's unilateral
implementation of its last best offer following impasse is not a prohibited
circumvention or disparagement of the employer's duty to bargain in good
faith.  Although the Act differs from the National Labor Relations Act in that
it prohibits strikes and requires mandatory dispute resolution procedures,
the federal impasse doctrine is not thereby rendered inapplicable.  The
definition of the outer limits of the duty to bargain in good faith requires
neither the voluntary abandonment of control of the public fisc, nor
bargaining in perpetuity.  The Board properly resorted to the impasse
doctrine in the present case.  Although labor relations in the public sector
differ from those in the private sector, there is nothing to suggest that the
Legislature intended to reject the impasse doctrine as a quid pro quo for the
denial of the right to strike.  The Board's long-standing reliance on the rule
against unilateral change, and the impasse exception to that rule, constitutes
a rational adaptation of private sector labor law and serves the goals set for-th
in the Act.

			 II.  Board's Finding of Impasse

     The Association argues that the Board's finding of impasse is not
supported by substantial evidence on the record.  The determination of
impasse is predominantly a question of fact and therefore will be upheld
unless clearly erroneous and unsupported by substantial evidence on the


record.  See 26 M.R.S.A.  968(5)(F); Saunders House v. NLRB, 719 F.2d
683, 687-88 (3d Cir. 1983), cert denied, 466 U.S. 958 (1984).

     Contrary to the Association's assertions, the Board was not required to
make express findings that further negotiations would be fruitless.  The
parties here had completed mediation, factfinding, and arbitration and there
was no question as to good faith during that period.  In finding that the
parties reached impasse, the Board concluded that SAD 43 participated in
further negotiation for a reasonable period of time after receiving the
arbitration report.  It rejected the Association's argument that SAD 43
violated its duly to bargain in good faith after arbitration by failing to respond
to requests to bargain and by implementirg its last best offer after it agreed
to mediation.  We find the Board's findings on impasse to be supported by
substantial evidence on the record.  Despite the fact that Maine law requires
exhaustion of impasse resolution procedures prior to impasse, we agree with
the federal courts that "[w]hether a bargaining impasse exists is a matter of
judgment."  Taft Broadcasting Co., 163 N.L.R.B. 475, 478 (1967), petition for
review denied sub nom. American Fed'n of Television & Radio Artists v.
NLRB, 395 F.2d 622 (D.C. Cir. 1968).  "[I]n the complex realm of industrial
relations 'few issues are less suited to appellate judicial appraisal than
evaluation of bargaining processes or better suited to the expert experience
of a board which deals constantly with such problems.'"  Saunders House, 719
F.2d at 688 (quoting Dallas General Drivers, W.G.H., Local No. 745 v. NLRB,
355 F.2d 842, 844-45 (D.C. Cir. 1966).

		      III.  Violation of Duty to Bargain


     In its decision, the Board upheld SAD 43's implementation of its last
best offer for wages and insurance, but also ordered SAD 43 to implement
the binding interest arbitration award of a two-year duration of the
contract.[fn]5  The Association contends that the Board should have first
remedied SAD 43's refusal to bargain on this particular item and sent the
parties back to the bargaining table before ruling on SAD 43's unilateral
implementation of its last best offer.  The Board has broad discretion to
fashion remedies for violations of the Act.  See Sanford Highway Unit of
Local 481 v. Town of Sanford, 411 A.2d 1010, 1015-17 (@Me. 1980).  We find
no abuse of discretion or error.

     The entry is:

			     Judgment affirmed
Roberts, Glassman, Clifford, Rudman, and Dana, JJ, concurring.

     5 MSAD 43 did not appeal the Board's decision regarding the duraton of the contact 


LIPEZ, J., dissenting.

     I must respectfully dissent because the Court's decision, in my view,
affirms a Board decision which comes perilously close to embracing the
statutory impasse concept urged by SAD 43.  According to SAD 43, if the
parties have exhausted the impasse resolution procedures set forth in 26
M.R.S.A.  965 and are unable to reach an agreement after continuing efforts
at negotiation, they are by definition at a statutory impasse.  Although the
Board does not explicitly adopt this concept of statutory impasse, it                                 
sanctions unilateral action by SAD 43 under circumstances that would
normally preclude a finding of impasse.  These circumstances include
ongoing negotiations that have yielded progress and a violation by SAD 43 of
its duty to bargain in good faith during these negotiations.  Although a
finding that further bargaining would be futile is at the heart of the impasse
doctrine,[fn]1 and although the Board made no finding that further negotiations
would be fruitless, the Court excuses this omission because the parties had
completed mediation, factfinding and arbitration, and had continued
negotiations for a reasonable period of time after receiving the arbitration
report.  These facts describe an ongoing process.  They do not describe

     1 Alsey Refractories Co., 215 N.L.R.B. 146 (1974), cited in James W. Heller, Unilateral
Action in a Concession Bargaining Context, 35 Lab. L.J. 747, 754 (1984).

     Given the incompatability of unilateral action by the employer with the
concept of collective bargaining, and given the substantial advantage to the
public employer inherent in the right to declare an impasse and unilaterally
impose wage and insurance terms, the Court should insist that the Board
apply the same rigorous standard to the finding of impasse that the Board
applied in such cases as MSEA v. Bureau of Mental Retardation. No. 79-43
(Me. L.R.B. Dec. 6, 1979) and Sanford Firefighters v. Ackerman, No. 79-62
(Me. L.R.B. Dec. 5, 1979).  The Board's application of a diluted impasse
standard in this case will have the inevitable effect of compromising the
effectiveness of the statutory impasse resolution procedures so critical to
the Board's holding in Auburn Firefighters v. City of Auburn, No. 89-01 (Me.
L.R.B. Mar. 31, 1989) that, absent extraordinary circumstances, the
employer's implementation of a last best offer prior to the completion of
requested impasse resolution procedures will constitute a per se violation of
26 M.R.S.A.  964(1)(E).  The ease of unilateral implementation by the
employer after the exhaustion of the statutory impasse resolution
procedures will be a disincentive to dispute resolution by the employer
during the statutory impasse resolution process.  For that reason the diluted
impasse standard approved in this case is contrary to the premise of the
Municipal Public Employees Labor Relations Law and fundamental tenents of
fairness in public sector bargaining.

			 Post-Arbitration Negotiations

     The arbitrator's report was issued around July 9, 1992.  That report
made recommendations on wages, insurance and retirement payment, and


made binding determinations on all other issues including a two year
duration of agreement.  The Association informed the superintendent of SAD
43 by letter dated August 17, 1992 that the educational technicians
accepted the arbitrator's report by ratifying "their contract as negotiated
and arbitrated. . ." and requested the Directors' "status concerning the
contract."  By correspondence dated September 15, 1992, SAD 43 sent to
the Association a draft of the proposed collective bargaining agreement and
a "last best proposal. . ." on wages, medical insurance, sick leave (retirement
payment) and duration.

     On September 28, 1992, the Association sent a ten day notice to
Superintendent Richards to meet and negotiate the non-binding portions of
the arbitrator's report.  In a letter dated October 1, 1992, SAD 43
confirmed the date of the meeting between the parties.  On October 13,
1992, the parties met to discuss the draft of the proposed contract and to
discuss the Directors' "last best offer."  The Directors did not make any firm
proposals, but the Association made some counterproposals and the
retirement payment issue was resolved.  The Association also made several
corrections and additions to the draft of the tentative agreement.  Although
the Association did not agree to SAD 43's last best proposal, the Association
made a counterproposal which the negotiating team for SAD 43 agreed to
present to the entire Board of the District.  At the October 13, 1992
meeting the Association also informed SAD 43 that the duration of
agreement was a binding determination.


     After difficult and protracted negotiations that had begun in June
1990, most of the issues between the parties had been resolved at this
juncture in October 1992.  On the critical issues of health insurance and
wages, the differences between the two parties were as follows:

     Association:  Blue Cross Blue Shield Major Medical UCR would be
     printed into the contract and paid at 100% for current
     enrollees, paid at 100% of the individual premium for new
     enrollee; grandfather current "double dippers" on medical
     insurance and SAD 43's language for all new enrollees on
     "double dippers."

     SAD 43:  Maine School Management Association Health
     Insurance Trust Plan III or a comparable plan, no "double
     dipping," selection of a better plan or additional family coverage
     at employee's expense; implement a section 125 to pay the
     premium difference; Board would contribute $144.12 per month
     for the individual coverage, $324.29 per month for 2 person
     coverage and $394.91 per month for family coverage: new
     enrollees $144.12 per month.

     Association:  Salary effective July 1, 1991 - June 30, 1992, year
     1 and .10 per hour more than SAD 43's proposal for year two.

     SAD 43:  Salary effective January 1, 1992 - June 30. 1992, year 1
     and .10 per hour less than the Association's proposal for year

By letter dated November 3, 1992, SAD 43 modified somewhat its last best
proposal on health insurance by increasing the amounts the District would
contribute for various coverages.  At the same time, SAD 43 notified the
Association that it would offer and implement its modified last best proposal
on wages and insurance.  It also stated that the duration of the contract
would begin upon the execution of any agreement.  In response to this
communication, the Association immediately filed for mediation concerning
wages, health insurance, and duration of agreement, and a mediation session


was scheduled for January 21, 1993.  On November 20, 1992, SAD 43
unilaterally implemented its wage proposal by including a wage increase in
the employees' paychecks.  SAD 43 implemented its insurance proposals
effective December 1, 1992 by deducting payments from employees for
insurance premiums, and ending premium payments for employees covered
under a spouse's insurance plan.

     In Sanford Firefighters v. Ackerman, No. 79-62 (Me. L.R.B. Dec. 5.
1979), the Board evaluated the employer's declaration of an impasse and
found it deficient for the following reasons:

     Substantial progress was being made; there were only three
     issues remaining to be resolved; and the parties expected to
     meet again on these issues after the fourth mediation session, as
     did the mediator.  When Ackerman declared impasse he did so
     without consulting with the Association; he therefore could not,
     and admitted that he did not, know whether there was indeed a

Sanford Firefighters Ass'n., No. 79-62, at 9.  Although the Board was
addressing a claim of impasse prior to the exhaustion of the statutorily
mandated impasse resolution procedures, I reject SAD 43's contention that
the Board's approach to impasse in this pre-exhaustion setting is irrelevant
to the claim of impasse here.  The factors cited by the Board in the Sanford
Firefighters case are all present here:  (1) The parties were making progress
in their post-arbitration negotiations.  (2) Few issues remained to be
resolved.  (3) The parties had agreed to meet to attempt to resolve the
outstanding issues.  (4) The impasse was declared without consultation with
the Association.  These undisputed facts do not support a finding that the
parties were hopelessly deadlocked and unwilling to compromise.  They do

not support a finding that any future negotiations would have been fruitless.
They only support a finding that SAD 43 lost its patience and, in so doing,
implemented its last best offer in a manner that impermissibly denigrated
the bargaining agent.[fn]2  In these circumstances I can only explain the
Board's finding of an impasse by its unstated adoption of SAD 43's concept
of statutory impasse.[fn]3

		 SAD 43's Refusal to Bargain in Good Faith

     The duty to negotiate in good faith includes the duty to participate in
interest arbitration.  As the Board notes in its decision, "[f]or that
requirement to be meaningful, it must include the requirement to
implement the arbitrator's binding determinations unless overturned on
appeal."  SAD 43's refusal to implement the two year duration decision of
the arbitrators violated that obligation.  That refusal was unmistakably linked
to SAD 43's last best proposal communicated to the Association in the post
arbitration period. Specifically, the Board found as follows:

     Since the arbitrators' award was issued, MSAD 43 has
     consistently ignored the duration-of-agreement aspect of the
     award -- making a last best proposal" on duration in its
     September 15, 1992 letter to the Association (the offer being
     that the contract would be effecuve on the date of execution and

 2 See Auburn Fireighters v. City of Auburn, No. 89-01, at 23 (Me.L.R.B. Mar. 31, 1989).

 3 I reject the Association's position that a unilateral request for renewed mediation in
the post-arbitration period can defeat any finding of an impasse.  That argument is simplistic
and invites contrivance designed to defeat any possibility of a finding of an impasse.  I also do
not endorse the Association's view than the parties must repeat the cycle of statutory unpasse
resolution procedures.  Rather, as already indicated, I agree with the Association's view that a
declaration of impasse by the employer after the exhaustion of the statutory impasse
resolution procedures should be subjected to the rigorous scrutiny historically applied to such
a declaration.


     expire on June 30, 1993); making the same "last best proposal"
     in its November 3rd letter: and including that last best proposal
     in a copy of the new contract mailed to the Association on
     November 28th.  While the parties may agree to something other
     than what the interest arbitrators decided, neither party may
     unilaterally make changes in the award.

     The refusal of SAD 43 to recognize its legal obligation to honor the
arbitrators' decision on duration of contract, and the Association's strenuous
objection to this refusal, unmistakably contributed to the inability of the
parties to resolve their differences during the post-arbitration period.  The
Board abused its discretion when it concluded that there was an impasse
justifying the unilateral implementation by the employer of wage and
insurance provisions when the difficulty in resolving the outstanding issues
was the result, in part, of unlawful action by the employer.  As one
commentator has noted:  "The impasse exception to the unilateral action
proscription goes hand in hand with good faith.  Absent good faith
bargaining there can be no impasse."[fn]4   Again, I can explain the Board's
indulgence of SAD 43's unilateral action despite a violation of the duty to
bargain in good faith only because the violation occurred after the exhaustion
of the mandated impasse resolution procedures.  This position of the Board
comes perilously close to an acceptance of the statutory impasse doctrine.

     For the reasons stated, I would vacate the decision of the Superior
Court and direct the court to enter an order vacating the order of the Board
dismissing the Association's prohibited practice complaint and remanding
the matter to the Board with instructions to issue an order rescinding the

     4 James W. Heller, Unilateral Action in a Concession Bargaining Context, 35 Lab. L.J.
747, 754 (1984).


unilateral actions of SAD 43 and ordering them to cease and desist from
further unilateral changes.