Auburn School Administrators Association, Local 67A, AFSA v. Auburn School Committee, No. 91-19 (Decision and Order, Oct. 8, 1991), Decision and Order on Respondent's Motion to Stay Decision and Order and Motion to Reconsider, Nov. 21, 1991) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-19 Issued: October 8, 1991 __________________________________ ) AUBURN SCHOOL ADMINISTRATORS ) ASSOCIATION, LOCAL 67A, AFSA, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) AUBURN SCHOOL COMMITTEE, ) ) Respondent. ) ___________________________________) On March 27, 1991, the Auburn School Administrators Association, Local 67A, American Federation of School Administrators ("Association"), filed a prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that the Auburn School Committee ("School Committee") had by certain actions violated its obligation to bargain in good faith, which actions constituted a violation of section 964(1)(E) of the Maine Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(E) (1988). The complaint was amended, by agreement of the parties, at the prehearing conference on April 23, 1991. The complaint as amended alleges that the School Committee has refused to bargain by 1) making a unilateral change in wages paid to Association members, and 2) during negotiations for a successor agreement, refusing to negotiate over four mandatory subjects, withdrawing items substantially agreed upon, and changing its bargaining position in retaliation for propos- als made by the Association. The School Committee responded by denying the allegations, asserting the six-month statute of limitations, and filing a counterclaim against the Association alleging a refusal to bargain. At the prehearing conference, the Respondent moved to withdraw its counter- claim, which motion was granted without objection. On April 23, 1991, Board Chair Peter T. Dawson convened the prehearing conference in this matter. His May 7, 1991 Prehearing Conference Memo- -1- randum and order is incorporated in and made a part of this decision and order. Chair Dawson convened the evidentiary hearing on June 17, 1991, accompanied by Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson. Bryan M. Dench, Esquire, represented the Association, and George S. Isaacson, Esquire, represented the School Committee. The parties were given full opportunity to examine and cross- examine witnesses, introduce documentary evidence, and make oral argument. Upon receipt of the transcript,1 the parties filed posthearing briefs and replies,2 the last of which was received on August 16, 1991. The Board deliberated the case on Augusta 29, 1991. JURISDICTION Complainant Auburn School Administrators Association is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for a bargaining unit of administrators employed by the Auburn School Committee. The School Committee is the public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1990), of the employees in that unit. The jurisdiction of the Board to hear this case and render a decision and order lies in 26 M.R.S.A. 968(5) (1988). FINDINGS OF FACT 1. On November 9, 1988, the Association and the School Committee signed a collective bargaining agreement effective July 1, 1988, through June 30, 1990 ("88/90 agreement"). ___________________________________ 1Due to nearly two weeks of State government shutdown, the transcript could not be provided to the parties as promptly as originally contem- plated. 2Counsel for Respondent chose not to submit a reply brief. -2- 2. Article IX, section A, of the 88/90 agreement reads as follows: ARTICLE IX. - COMPENSATION AND FRINGE BENEFITS A. Basic Salary Schedule 1. The salaries and differentials of all members of the bargaining unit are set forth in Appendix I which is attached to and made a part of this agreement. 2. The annual salaries of Administrators shall be paid in twenty-six (26) installments due every other Friday with the first payment due on the first pay period after July 1st. 3. Page 1 of Appendix I reads as follows: Appendix I This constitutes a two year contract with the following provisions: 1988-89 1. A 4.4% cost of living adjustment on the base at each level as determined by comparison district for all administrators. Portland Lewiston Auburn Bangor Bath Brunswick S. Portland Augusta Lake Region SAD 54 SAD 6 2. All administrators serving as administrators in Auburn in 1987-88 be given a 3% performance increase in addition to that base. 3. No Administrator to receive less than 4.4% above current salary. 4. Blue Cross and Blue Shield payments be made at the follow- ing rates: $235.16 Full family/Month 192.68 2 person/Month 149.00 Adult/Child/Month 87.64 Single Subscriber/Month 5. The attached performance proposal be piloted on 1987-88 performance and agreed upon for implementation in 1988-89. -3- 1989-90 1. Full implementation of the performance component. 2. Blue Cross & Blue Shield as attached 3. Review of the results of the pilot to make appropriate adjustments. If no agreement on adjustments, criteria will be implemented as agreed upon. 4. 1990 - The entire pay process will be evaluated at the end of this contract period. 4. Page 5 of Appendix I is a more detailed outline of administrator salaries under the two-year contract, which reads as follows: ADMINISTRATORS SALARIES 1988-89 Level Column I Column II 3% PERFORMANCE AVE. 4.4% 88-89 BASE I. 44,443 46,388 47,780 II. 41,727 43,563 44,870 III. 39,519 41,253 42,496 IV. 36,809 38,429 39,582 V. 34,755 36,284 37,373 1989-90 IMPLEMENTATION 1. Base to be adjusted by the average increase to adminis- trators in the comparable districts. Portland Lewiston Auburn Bangor SAD 6 Bath Brunswick S. Portland Augusta SAD 54 Lake Region -4- 2. Performance adjustments from 0-8% based on criteria agreed upon. SAMPLE 1988-89 Base 1989-90 Base* 4% Performance 8% Performance Level 1 46,388 49,171 51,138 53,105 Level 11 43,563 46,177 48,024 49,371 Level III 41,258 43,733 45,482 47,232 Level IV 38,429 39,582 41,165 42,749 Level V 36,284 38,461 40,000 41,538 *Based on a projected average increase of 6%. 5. The 88/90 agreement establishes which job classifications within the administrators' bargaining unit are at each of the five levels. 6. The comparison-district, cost-of-living adjustment (hereinafter called "comparability increase") is based on percentage salary increases for comparison-district administrators during the prior school year. 7. Page 8 of Appendix I contains the components for implementing the performance evaluation of administrators: PROCESS COMPONENTS 1. Pre-conference for goal setting will be completed by 9/30. 2. Administrator will complete activities or indicators by 10/15. 3. The progress review of goals will occur at least once, no later than 1/31. 4. Goal attainment for salary will be determined by July 30th. 5. Category #1 administrative management functions will be different for various job classifications. Category #2, 3 & 4 the same for all administrators. -5- 6. Appeal of ratings may be made to the School Board by principals and the Superintendent of Schools for personnel evaluated by principals (no later than August 31st). 7. System and individual goals will be mutually agreed upon with the Superintendent and administrator. Both completed activities and results will be considered when evaluating goal attainment. 8. Page 9 of Appendix I reads as follows: GENERAL GUIDELINES 1. This instrument is intended to be utilized as a measure of mutually agreed upon golas (sic) for the purpose of determining additional financial renumeration (sic). 2. The attached format will be utilized to determine degree of competence for the goal and merit portion of the contract for all administrators. 3. All administrators will be evaluated by their immediate supervisor. 4. Administrators will be evaluated annually following the process described herein. 5. Due process will be followed. However, salary determi- nations are not subject to review beyond the school committee. 6. An administrator may receive from 0-8% additional compen- sation based on performance as follows: . . . 7. Performance increments will not be based upon the avail- ability of funding or withheld because of lack of funds. 8. DEFINITIONS . . . 9. Administrator salaries paid at the beginning of the first year of the 88/90 agreement were calculated by making two adjustments to the appropriate salary level for each administrator: a 10-town comparability increase of 4.4%, and a fixed 3% performance increase, which reflected the fact that the procedures for setting individual goals and evaluating performance had not been in place during the 87/88 school year. -6- 10. During that first year of the contract, goals were set and perform- ance was evaluated; consequently, the new salary system was fully imple- mented for salaries paid during the second year of the contract. For that second year, each administrator received a 10-town comparability increase, as well as an increase based on his/her performance points earned during the first year. The base upon which salaries were calculated was the first year's salary minus the performance increase. No evidence was provided in the record to establish how quickly performance points were given after goal attainment had been determined under the contract, or how quickly those points were reflected in salaries, retroactive to July 1st. 11. During the second year of the contract, goals were again set and performance evaluated for each administrator. Although the contract stipu- lates that goal attainment is to be determined by July 30th, administrators did not receive notification of their performance points until sometime in October of 1990. According to testimony by one administrator (and Associ- ation negotiator), Lawrence Labrie, regarding when the superintendent notified him of his points earned in the 89/90 school year: We had to request that process be completed. The goals had been set. We completed the evaluation of goals, and within the re- quired time frame, which was by July 30 of last--of '90, last summer, and he responded to us, I believe, in October with those points. Subsequent to receiving notification, administrators did not receive salary increases, effective July 1, 1990, that they would have received had the salary plan in the contract been utilized to determine salaries for the 90/91 school year (that is, administrators' salaries were frozen). 12. On or about November 28, 1990, several of the administrators (including one who is a representative of the Association at the bargaining table) wrote to Superintendent Fenton to complain that they had not received their pay increases, effective July 1, 1990. The letters asserted that the administrators' individual employment contracts entitled them to pay increases, even though the expired contract might not. 13. By letter dated January 18, 1991, Superintendent Fenton responded to each administrator, stating first that his delay in responding was caused by the need to familiarize himself with the 89/90 agreement and the -7- individual contracts, and by the need to seek legal counsel on the issues at hand. Fenton further stated 1) that the "peer-group adjustment"3 to salaries had been a one-time adjustment (Fenton referred to the language in the agreement for 89/90 as a "double salary adjustment"); 2) that 90/91 salaries were entirely open to negotiation, since Appendix I established salaries only for the 88/89 and 89/90 school years, with no amount or for- mula specified for the 90/91 year or thereafter; and 3) that the School Committee was under no obligation, under the individual contracts, to provide increases. 14. During the 90/91 school year, the process of setting goals and working to achieve them was again followed. At the time of the hearing in this matter, on June 17, 1991, the evaluation process was ongoing but had not been completed; no performance points had yet been awarded. 15. In connection with expiration of the 88/90 agreement, the following exchange took place at hearing between one of the administrators, Associ- ation president Steve Galway, and counsel for the School Committee: Q. Did the Association make a conscious decision not to file a prohibited practice complaint on or around July 1, 1990? A. We made a conscious effort to resolve our salary adjustments, yes. Q. So you made a policy decision as an association not to file a prohibited practice complaint at that time? A. No, we did not. Q. It was simply not thought of at that time? A. We chose to proceed as we have. Q. So you were aware of what your legal rights were at that time but chose not to exercise them? A. They're in the contract. I guess that's correct. 16. The salary plan in Appendix I of the 88/90 agreement was origi- nally proposed by the School Committee. The administrators agreed to it, _______________________________ 3I.e., the comparability increase. -8- in spite of the fact that as a result, administrators as a group lost almost $14,000 compared to the salaries they would have had under the old salary system. (Prior to the 88/90 agreement, administrator salaries were a fixed percentage above salaries of teachers with the same years of experience.) When they negotiated the 88/90 agreement, two of the Associ- ation's negotiators were under the impression that the salary plan in Appendix I would be continued in some form in future contracts. 17. Informal negotiations for a successor agreement began in November of 1989. (They began informally at the request of the superintendent for a variety of reasons, including an ongoing search for a new superintendent). At the first meeting for formal negotiations in February of 1990, the Association provided the School Committee with its first written proposal. The proposal consisted of a list of items that the Association wanted in the new contract, including a "just cause" provision to replace a termina- tion provision containing an "arbitrary and capricious" standard. It also included a proposal to adjust the salary plan of Appendix I to achieve parity pay with Lewiston. 18. The School Committee's response, through its negotiator, Superin- tendent Loux, was an offer to retain the salary plan in Appendix I (with one change), and rejection of the 19 items on the Association's list. The proposed change in Appendix I was to substitute a flat 3% increase over the base salary in place of the 10-town comparability component of the salary plan. 19. On July 1, 1990, a new superintendent (Fenton) began working for the School Committee. The old superintendent was hired by the School Committee as a consultant to continue negotiations on a new contract with the administrators. Fenton attended a negotiation session on December 17, 1990, as an observer, and on January 3, 1991, began attending as a nego- tiator. 20. No negotiations occurred between February and September of 1990. By letter dated September 4, 1990, the School Committee requested more information on the Association's negotiation proposal. The Association responded by letter dated September 18, 1990, indicating its surprise and displeasure that its negotiating position was unclear. -9- 21. By letter dated November 15, 1990, the Association provided pro- posed contract language in response to the School Committee's September request for specificity. The cover letter accompanying the proposal con- tained a 10-day demand for negotiations. The proposal itself included specific language on just cause; it also included a new item for discus- sion -- a strengthened maintenance-of-benefits clause. 22. In a memorandum dated December 10, 1990, the School Committee stated that it opposed the maintenance-of-benefits clause as "too general, taking away management perogatives (sic), and providing for any change to be taken through the grievance procedure to arbitration." It opposed the just cause language on the basis that "[i]t is essential that management have the opportunity and right to develop a management team that is philosophically compatible and can work well together. This would not be possible if administrators were granted lifetime tenure unless they com- mitted some crime or very serious offense." The December 10th memo also contained figures indicating raises that administrators would receive if the 3% cap on the comparability component of Appendix I were implemented. 23. At a meeting on December 17, 1990, the parties discussed both the just cause and maintenance-of-benefits proposals; the School Committee refused to accept either. At the next meeting on January 3, 1991, the School Committee again refused to move on either issue. At that meeting the School Committee proposed for the first time, through a salary schedule provided to the Association, to abandon the salary plan in Appendix I. 24. In a document dated January 30, 1991, and received by the Associ- ation in a meeting on the 31st, the School Committee reiterated its propos- al to to abandon the salary scheme in Appendix I of the 88/90 agreement, albeit through a somewhat different salary schedule than had been proposed on January 3rd. 25. The parties met again on February 27, 1991. The Association offered a counterproposal in which it took certain items off the table. At the same time, the Association added two items to its list: a provision on reductions in force, to protect unit personnel in case of layoffs; and a provision to require the School Committee to meet and consult on management -10- and educational policy4 decisions affecting employees, with negotiations over the impacts of such decisions prior to implementation. At the end of the February 27th meeting, the parties were very close to agreement on the issue of salaries. The salary plan being discussed was not the plan in Appendix I of the 88/90 agreement, nor did it include parity with Lewiston. Had final agreement on the plan been reached, administrators as a group would have received less than they would have received under the plan in Appendix I. 26. On March 13, 1991, the School Committee made a counterproposal that removed the maintenance-of-benefits clause from the contract alto- gether; lengthened the work year; removed the cafeteria benefit plan that it had offered earlier (but raised the total dollar figure for health benefits); and weakened clauses on vacation carryover, conference attend- ance, and job separation benefits. The Association rejected the School Committee's counterproposal. No negotiation sessions occurred after March 13, 1991. 27. The Association never made any counterproposals in response to the School Committee's rejection of the Association's proposals on just cause, maintenance of benefits, reductions in force and meet and consult. DISCUSSION Six-month bar As an affirmative defense to the Association's unilateral change alle- gation, the School Committee asserts the statutory six-month bar. The facts do not support the School Committee's defense; consequently, we reject it. Section 968(5)(8) of the MPELRL, 26 M.R.S.A. 968(5)(B) (1988), states in part that "no hearing shall be held based upon any alleged prohibited ___________________________________ 4The complaint alleged and the City admitted in its response that this was the content of the meet-and-consult counterproposal. The written counterproposal itself, Exhibit C-12, makes no mention of educational policy decisions. -11- practice occurring more than 6 months prior to the filing of the complaint with the executive director." Rule 4.01 of the Board's Rules and Pro- cedures reiterates this time limitation. The Board has held that the six- month limitations period "begins to run when the complainant knew, or reasonably should have known, of the occurrence of the event which alleg- edly violated the Act." Coulombe v. City of South Portland, No. 86-11, slip op. at 8, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). The Association's complaint was filed with the Board on March 27, 1991. The first written notification of the School Committee's intention not to pay salary increases pending negotiations for a successor contract occurred in the letters of January 18, 1991, from Superintendent Fenton to individ- ual administrators. (One of the administrators is a union representative who is on the negotiating team for the Association.) The Association argues that the six-month limitation began to run in January because it was then that the School Committee's "final and adamant refusal" to pay increases became clear -- both from the January 18th letters and from the School Committee's proposal at the bargaining table to scrap the Appendix I salary plan.5 Certainly the six-month limitations period began to run no later than January. It may have begun to run earlier. The administrators received their performance points from Superintendent Fenton sometime in October of 1990. On or about November 28, 1990, they wrote letters to Fenton complaining that increases had not occurred. The content of the letters indicates that the administrators had realized that they were not going to get pay increases until a new contract was negotiated which required them. From the timing of the November letters to Fenton, it appears that they were ___________________________________ 5The Association also argues that the failure to pay increases was not a one-time event, but rather is a recurring violation that continues to the present. We have rejected this argument where a discrete event is the basis for the allegation. Sanford Fire Fighters Association, v. Town of Sanford, No. 84-12, 6 NPER 20-15006 (Me.L.R.B. Jan. 25, 1984); Arbour v. City of Biddeford, No. 80-36 (Me.L.R.B. May 19, 1980) (Executive Director Action); Teamsters Local Union No. 48 v. City of Waterville, No. 80-14, 2 NPER 20-11017 (Me.L.R.B. Apr. 23, 1980). -12- written because the paychecks due immediately after administrators received their performance points contained no salary increase. Assuming, for the benefit of the School Committee, that performance points were received very early in October and paychecks were issued very shortly thereafter, it could be argued that early in October the Association should reasonably have known that no increases were forthcoming. However, even if that is the case, the complaint was timely, since it was filed on March 27th. The School Committee argues that the limitations period began running even earlier -- on July 1, 1990. It relies in part on Sanford Fire Fighters Association v. Town of Sanford, No. 84-12, 6 NPER 20-15006 (Me.L.R.B. Jan. 25, 1984). There, the Board pointed to two discrete events that constituted the conduct complained of; it dismissed the complaint because it had been filed more than six months after the second event. In the matter before us, the School Committee asserts that the alleged prohibited practice occurred as a discrete event on July 1, 1990, because "on that date, the Association contends that the School Committee made a unilateral change ...." In fact, the complaint alleges that as of July 1, 1990, no salary increases were paid. It is true that the 88/90 agreement expired on June 30, 1990, and any obligation the School Committee had to increase salaries would have been effective as of July 1, 1990.6 However, by the terms of the agreement itself, performance evaluations of administrators were not due to be completed until July 30th of each year. One can only conclude from that fact that the parties intended that salary increases would be given retroactively.7 In these circumstances, the alleged unilateral change could not have occurred on July 1, 1990, unless ___________________________________ 6Under the 88/90 agreement, the contract year runs from July 1st tnrough June 30th. Article IX, section A2, states that "annual salaries of Administrators shall be paid in twenty-six (26) installments due every other Friday with the first payment due on the first pay period after July 1st." 7We assume, for instance (in the absence of any evidence to the contrary), that the increase due at the beginning of the second year of the contract was given retroactively, after evaluations were completed and performance points awarded. -13- the Association was affirmatively notified on that date that salary increases would not be forthcoming once performance points were awarded. There is no evidence in the record to indicate that such notification occurred. In actuality, administrators did not receive their performance points for the 89/90 school year until October of 1990. No explanation was offered for the delay; in particular, there was no suggestion by the School Committee that the delay had anything to do with its intention to freeze salaries pending negotiations for a new contract,8 once those points were determined. Superintendent Fenton's January 18, 1991, letter is also instructive. Fenton stated that his delay in responding to the salary complaints of November 28th had occurred because he needed to familiarize himself with the contract and get the advice of legal counsel. The clear implication from that statement is that the issue was coming to his attention for the first time -- and therefore that he had not previously informed administra- tors of the School Committee's position regarding salary freezes pending negotiations. It appears to us, from the evidence, that for a substantial period of time before and after July 1st, both parties were focusing on negotiations for a new contract, and not on what constituted the status quo pending negotiations, should negotiations be prolonged. Association nego- tiators in particular were assuming that the Appendix I salary plan would be retained in some form, so they had no reason to raise the issue of the status quo until after they received their performance points in October and then received no pay increase. We are not persuaded, as our colleague is, that the Association knew as early as July or August that no salary increases would be forthcoming. Counsel for the School Committee suggests in his brief that one of the Association's representatives, Mr. Galway, was aware of the Association's ___________________________________ 8In fact, the School Committee was quick to point out that it had inten- tionally continued the process of evaluating performance and awarding points during the 89/90 school year, in order that it not foreclose the Association's options in negotiations for a new contract. -14- legal rights on July 1, 1990, but chose not to exercise them. We are not persuaded by this argument. Galway, in stating that he knew in 1988 that he had the right to an increase, appeared to have been referring to his understanding that Appendix I would be continued in some form in future contracts, and not to the legal concept of the status quo. In any case, there is a difference between knowing that one has a right to an increase and knowing that the employer does not intend to give that increase. Only the latter is relevant. In summary, we find that the Association neither knew nor should have known before sometime in October of 1990 that the School Committee was not going to pay salary increases pending negotiations for a successor agreement. We now move on to consider the substance of the allegations. Unilateral change The salary plan in Appendix I of the 88/90 agreement places administra- tors at five levels, depending on their job classifications. It contains two components for increasing salaries above these base levels: first, an increase based on the average of increases given to administrators in ten comparable districts the prior year (the comparability increase); and second, a performance-based increase. The former increase is retained in the base salary used to calculate the next year's salary, while the latter is not. The first of the Association's two charges is that the School Committee unlawfully changed wages paid to members of the bargaining unit upon expiration of the 88/90 agreement and pending negotiations for a successor agreement. The issue of unilateral change in a term or condition of employment may arise before an initial contract has been negotiated, during the term of an existing contract, or after contract expiration and before a successor has been signed. It is the latter that is alleged to have occurred in the matter before us. "It is a well established rule of labor law that an employer may not unilaterally alter the terms and conditions of employment after the expiration of a collective bargaining agreement." Lane v. Board of Directors of MSAD No. 8, 447 A.2d 806, 809-10 (Me. 1982). "Freezing the -15- status quo ante after a collective agreement has expired promotes indus- trial peace by fostering a noncoercive atmosphere that is conducive to serious negotiations on a new contract. Thus, an employer's failure to honor the terms and conditions of an expired collective bargaining agreement pending negotiations on a new agreement constitutes bad faith bargaining ...." Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 779 F.2d 497, 500 (9th Cir. 1985), quoted with approval on appeal, 484 U.S. 539, 544, n. 6 (1988). The Board has a three-pronged test for determining whether an unlawful unilateral change has occurred: In order to constitute a violation of 964(1)(E), three elements must be present. The public employer's action must: (1) be unilateral, (2) be a change from a well-established prac- tice, and (3) must involve one or more of the mandatory subjects of bargaining. Teamsters Local Union No. 48 v. Eastport School Dept., No. 85-18,. slip op. at 4, 8 NPER ME-17003 (Oct. 10, 1985). The School Committee argues not that the alleged change was lawful,9 but rather that no change occurred. The Association suggests that upon contract expiration, the status quo required salary increases for adminis- trators in accordance with Appendix I of the 88/90 agreement. The School Committee responds that in order to maintain the status quo, it was required only to freeze actual wages where they were when the 88/90 agreement expired. At the heart of the dispute between the parties as to whether a change in wages occurred is the concept of the status quo and its meaning.10 Integral to that question is whether the meaning of the term "status quo" ___________________________________ 9That is, the employer has not asserted that any of the exceptions to the unilateral change rule apply here. 1OThe question arises because maintaining the status quo in connection with wages is not always straightforward, since wage provisions may be structured in a variety of ways and may contain multiple components. Fixed hourly rates, cost-of-living increases, and automatic wage escalators based on length of service, experience or education are just three examples. -16- should change, depending on when during the parties' bargaining relation- ship the dispute arises. In particular, we must address the issue of whether the status quo has one meaning during negotiations for an initial contract, and another after contract expiration, during negotiations for a successor -- and if so, under what circumstances (ie., for which terms and conditions of employment). The question before us is not a new one. The wage provision in Appendix I of the 88/90 agreement is similar in nature to a wage escalator. The first Board case to address the issue of the status quo with respect to a wage escalator was Easton Teachers Association v. Easton School Committee, No. 79-14, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979). In that case, the employer had made changes in twelve terms and conditions of employment upon expiration of the parties' collective bargaining agreement and before a successor had been negotiated and signed. In addressing these changes, the Board stated: Normally the two parties reach a complete written agreement on the terms and conditions and agree to be bound by that agree- ment for a given length of time. Thereafter, the parties again have the opportunity to negotiate proposed changes in the existing terms and conditions. Again, however, the employer cannot make unilateral changes in these terms and conditions embodied in the prior agreement until the proposed changes have been negotiated with the bargaining agent. In essence, there is no difference between collective bargain- ing for an initial agreement, during which all existing terms and conditions of employment are frozen until proposed changes have been fully negotiated, and collective bargaining for subsequent agreements, during which existing terms and conditions of employ- ment (as embodied in a prior agreement) are again frozen until proposed changes have been fully negotiated. Id., slip op at 4-5. The Board went on to apply this principle of maintaining the status quo to the various terms and conditions of employment that the employer had unilaterally terminated upon expiration of the parties' contract. These included such items as medical insurance reimbursements, professional and sick leave days, and the parties' grievance procedure. Two items were singled out by the Board in Easton and addressed dif- ferently than the others: salary step increases and experience factor -17- increases for extracurricular activities. Adopting the New York11 view of freezing wages rather than freezing or giving effect to built-in wage escalators, the Board established what it termed the "static" view of status quo. As a-result, the employer's failure to grant the step increases and experience factor increases at issue did not constitute a prohibited practice, even though the termination of other benefits was improper. In a decision issued shortly after Easton, the Board refused to apply the principle of the "static" status quo to the employer's termination of a merit increase during negotiations for an initial contract, in spite of its statement in Easton that there is no difference between collective bargain- ing for an initial agreement and bargaining for a successor. Teamsters Local Union No. 48 v. University of Maine, No. 79-08, 1 NPER 20-10022 (Me.L.R.B. June 29, 1979), appeal dismissed for lack of prosecution sub nom. University of Maine v. Teamsters Local Union No. 48, No. CV-79-406 (Me. Super. Ct., Ken. Cty., Dec. 30, 1981). The Board gave two reasons for its different treatment of this pre-contract wage dispute. First, during the pre-contract period there can be no understanding or agreement on a termination date at which point wage levels might be frozen in the future. Second, it can take years to negotiate an initial contract, and employers would enjoy a windfall if automatic wage escalator policies could be ter- minated upon certification of a bargaining agent.12 Id., slip op. at 5. The Board called this different treatment of pre-contract wage escalators the "dynamic" status quo. Since University of Maine, the Board has continued to apply the concept of the "dynamic" status quo to pre-contract wage escalator disputes. Council 74, AFSCME v. School Administrative District No. 1, No. 81-12, 3 ___________________________________ 11Board of Co-Op Educ. Services v. Public Employment Relations Board, 395 N.Y.S.2d 439 (N.Y. 1977). 12The Board went on to find that termination of the merit increase plan was impermissible under either definition of the status quo, because it occurred several months after certification (but before a contract had been negotiated). -18- NPER 20-12014 (Me.L.R.B. Mar. 11, 1981); Council 74, AFSCME v. Town of Brunswick, No. 85-08, 8 NPER ME-16014 (Me.L.R.B. Apr. 19, 1985). Until now, it has been faced with only one post-contract wage escalator dispute since Easton. In MSAD No. 43 Board of Directors v. MSAD No. 43 Teachers Association, No. 79-36, -39, -45 & -47, 1 NPER 20-10027 (Me.L.R.B. Aug. 24, 1979), modified sub nom. MSAD No. 43 Teachers Association v. MSAD No. 43 Board of Directors, No. CV-79-541 (Me. Super Ct., Ken. Cty., July 8, 1980), aff'd, 432 A.2d 395 (Me. 1981), the Board again found that it was legal for the employer not to advance teachers an experience step for the new school year because their contract had expired. (However, it was not legal to at the same time pay newly hired teachers the higher salary for the same years of experience.) The Board has not applied this pre-contract/post-contract ("dynamic" status quo/"static" status quo) distinction to any term or condition of employment other than wage escalators.13 Health insurance is a term or condition that might be amenable to such a distinction. As with wage escalator provisions, an employer may be required to spend more money for health insurance after the contract expires than it had to spend during the term of the contract, depending on how the health insurance provision is drafted. (At the heart of the distinction for wage escalators seems to be the concern that the employer must spend more for wages post-contract than it had bargained to spend under the contract.) Auburn School Support Personnel v. Auburn School Committee, No. 91-12 (Me.L.R.B. July 11, 1991), is the Board's most recent decision regarding an alleged post-expiration unilateral change in connection with health insurance. Tnere the complainant charged that the employer had unlawfully changed health insurance premiums for support personnel, by requiring ___________________________________ 13Although the Board has on occasion used the term "static" status quo in a non-wage context, the result was no different than it would have been had it applied the "dynamic" status quo. See, for example, Teamsters Local Union No. 48 v. Boothbay/Boothbay Harbor Community School District, No. 86-02, 9 NPER ME-17009 (Me.L.R.B. Mar. 18, 1986). -19- employees to pay a premium increase that occurred during negotiations for a new insurance provision in the contract. The Board disagreed, finding that since the old contract provision stated a fixed dollar amount to be paid by the employer rather than simply requiring the employer to pay for insurance, no change in the health insurance benefit had occurred. This result is consistent with the decision in Easton, where the employer was ordered to reimburse employees for the monthly contribution of $17 that it had discon- tinued paying for health insurance when the parties' contract expired. When a contract provision does not simply state a fixed dollar amount, the result has been different. Where the employer's past practice has been to pay 100% of insurance premiums, it is bound to continue to pay those premiums during negotiations for an initial contract, even if premium costs increase. Council 74, AFSCME v. Ellsworth School Committee, No. 81-41, 4 NPER 20-12030 (Me.L.R.B. July 23, 1981). The same rule has been applied where a provision in an expired contract states that the employer will provide insurance "at the [employer's] expense" -- the employer was bound to continue to pay the full cost of insurance upon contract expiration, even though premium costs increased. Bangor Education Association v. Bangor School Committee, No. 83-11, slip op. at 3, 5 NPER 20-14015 (Me.L.R.B. Mar. 29, 1983). In the recent Auburn decision, we characterized the distinction between the two lines of health insurance cases as a distinction between freezing a fixed contractual term or condition of employment versus freezing a contractual procedure for determining a term or condition. Auburn, slip op. at 12. Both maintain the status quo -- the contents of the contract provision are frozen, whether the provision consists of a fixed dollar amount or a procedure. An analogous distinction was made in MSEA v. School Committee of the City of Lewiston, No. 90-12 (Me.L.R.B. Aug. 21, 1990), in connection with a contractual reclassification procedure. In that case, employee classifications were not fixed during negotiations for a successor contract, but the reclassification procedure in the parties' expired contract had to be maintained. Why should the terms and conditions in a contract provision, however it is drafted, be frozen upon contract expiration for health insurance and -20- other terms and conditions of employment, but not when that contract provi- sion contains a,wage escalator? In Bangor, the Board distinguished the health insurance provisions before it from the wage escalator provisions in Easton by stating that in Easton "the school committee agreed only to pay specified salaries. The School Committee [in Bangor] could have similarly agreed only to pay specified amounts for health insurance in Articles VIII and XIV, but this it did not do." Bangor, slip op. at 5. While the rationale in Bangor is appealing at first blush, it does not hold up under scrutiny. The employer in Easton had not, in its expired contract, simply agreed to pay specified salaries -- it had agreed to a wage escalator. If a wage escalator and a specified salary were equiva- lent, wage escalators in the pre-contract period would be treated in the same manner as they were treated in Easton, (that is, they would not be given effect), and they are not. See University of Maine, supra. After careful consideration, we conclude that Easton must be over- turned, to the extent that it treats wage escalator provisions of an expired contract differently than it treats other provisions. We find the following principle, stated in Easton itself, to be a sound approach to the issue of maintaining the status quo, which principle should be applied consistently: In essence, there is no difference between collective bargain- ing for an initial agreement, during which all existing terms and conditions of employment are frozen until proposed changes have been fully negotiated, and collective bargaining for subsequent agreements, during which existing terms and conditions of employ- ment (as embodied in a prior agreement) are again frozen until proposed changes have been fully negotiated. Easton, slip op at 5. In addition to the precedent of Easton, the School Committee makes four arguments against extending the Appendix I salary plan beyond expira- tion of the contract. Its first argument is that the 88/90 agreement does not provide for the comparability increase for any year other than 1989-90; that it provides no amount or formula for salaries beyond 89/90, and in fact specifies that "the entire pay process will be evaluated at the -21- end of this contract period"; and therefore that the understanding of Association negotiators that the Appendix I wage plan would continue beyond the 88/90 agreement is irrelevant. Although the evidence does not support the assertion that the compara- bility increase was utilized only for the second year of the contract,14 it would make no difference if that were the case. To maintain the status quo, the terms and conditions of employment that existed at the time the contract expired are frozen (in this instance, the two-part salary plan in Appendix I); consequently, contract terms for the first year, if different from the second year, are irrelevant. The fact that the contract specifies no salaries for 90/91 or beyond is also irrelevant -- that is why the issue of maintaining the status quo arises in the first instance. The statement in the contract that "the entire pay process will be evaluated at the end of this contract period" is simply a statement of collective bargaining law -- parties are free to negotiate a successor contract with different terms and conditions than were contained in the expired contract. Parties are of course also free to negotiate away the right to maintenance of the status quo upon expiration -- either after the contract expires15 or within the expired contract itself. Thus, if the parties had stated in the 88/90 agreement that, the principle of the status quo notwithstanding, increases in accordance with Appendix I would not be granted pending negotiations for a successor agreement, the result would be ___________________________________ 14We do not accept the School Committee's position that the comparability increase was a one-time "catch-up" arrangement, for two reasons. First, although it is called a "cost of living adjustment" in the contract, the 4.4 percent salary increase received in 88/89 was, according to the contract, "determined by comparison district." In addition, uncontroverted testimony indicated that the comparability increase was calculated the same way the first year that it was the second year -- using comparison districts. Second, the School Committee's position is contradicted by the fact that in initial negotiations for a successor agreement, it proposed simply to cap the comparability component at 3 percent. Implicit in the proposal is the assumption that the comparability component is an integral part of the salary plan in Appendix I. 15Usually reflected in the successor agreement. -22- different. The School Committee is correct that the understanding of Association negotiators regarding the duration of Appendix I in future contracts is irrelevant. However, we do not base our decision regarding the right of administrators to a salary increase on the understanding of Association negotiators. We base it on the principle of maintaining the status quo until a successor contract is negotiated and signed. The School Committee's second argument is that the Appendix I plan, if deemed to continue beyond contract expiration, could be paralyzed if one or more of the school districts upon which the comparability increases are based did not conclude their own negotiations in time for that information to be used in the Appendix I calculation. This argument is not convincing. The comparability component of Appendix I is based on percentage increases given in comparable school districts during the prior school year. Presumably, if any of the districts listed in Appendix I were without a contract for some relevant period of time, they could be counted as "no increase" or omitted from the calculation altogether. In any case, the parties were faced with the same potential problem during the contract term itself. The School Committee's third argument is that the Appendix I plan would constitute an unlawful parity pay provision if it were allowed to continue past the 89/90 school year, under Lewiston Firefighters Association v. City of Lewiston, 354 A.2d 154 (Me. 1976). The facts in Lewiston are complex. The labor statute covering public sector municipal employees (the Municipal Public Employees Labor Relations Law) was passed in 1969. Prior to that time, for a period of four years, two other laws existed -- one giving bargaining rights only to municipal firefighters, and the other requiring firefighting personnel in Lewiston to be paid no less than Lewiston police officers. At issue, among other things, was whether the Lewiston parity pay law (which consisted of an amendment to the Lewiston City Charter by the Maine Legislature) had been repealed by implication -23- when the municipal bargaining law was passed. Finding that it had been,16 the Law Court then affirmed a Superior Court finding that a parity pay pro- vision that had been in the firefighters' contract for the four-year period could not survive the establishment of the municipal bargaining law. Consequently, the contract provision could be enforced for the time period before the municipal bargaining law was passed, but not for the time period thereafter. The situation before us is distinguishable. In Lewiston, the employer for the firefighters' unit and the police unit was the same; consequently, the firefighters' contract provision impinged on the rights of employees who were in the police unit. Here, the parties have negotiated a contract provision that ties a portion of salary calculations to events outside of the control of the employer -- salary increases in other school districts. We see no difference between this provision and an agreement to give employees salary increases based on the consumer price index, for instance. The provision was lawful when the 88/90 agreement was signed, and it is lawful now, for the purpose of determining and enforcing the status quo pending negotiations for a new agreement. In its final argument regarding salary increases, the School Committee points out that if the Association prevails, it will get more in salary than it was prepared to accept in negotiations as of March of 1991. It is not unusual for party, in exchange for some other concession, to give up (waive) something to which it is or may be legally entitled. That is inherent in the bargaining process. What the parties were willing to settle for or give up in negotiations is irrelevant to our determination of what was legally required of the employer under the principle of main- tenance of the status quo. ___________________________________ 16The court reasoned that the effect of the parity pay law was to place the bargaining agent for the police unit in the position of indirectly negotiating for the firefighters' unit. This, it stated, was contrary to the intent of the new municipal bargaining law regarding the establishment and coherence of bargaining units, and therefore interfered with the right of employees to bargain collectively. -24- The School Committee has violated section 964(1)(E) of the MPELRL by failing, pending negotiations for a successor agreement, to maintain the status quo with respect to administrator salaries, as reflected in the salary plan in Appendix I of the 88/90 agreement. Accordingly, we will provide remedies to effectuate the policies of the MPELRL. 26 M.R.S.A. 968(5) (1988). Specifically, we will order the School Committee to cease and desist from refusing to grant salary increases to members of the administrators' bargaining unit pursuant to the two-component plan in Appendix I of the 88/90 agreement. We will also order the School Committee to reimburse each administrator in the unit for wages lost during the period from July 1, 1990, through June 30, 1991. Payment shall be made within 30 days of the date of this order. Interest shall begin to accrue on the 31st day,17 and shall be computed in the manner described in Council 74, AFSCME v. City of Bangor, No. 80-41, 2 NPER 20-11042 (Sept. 24, 1980), modified in part sub nom. City of Bangor v. AFSCME, Council 74, No. CV-80-574 (Me. Super. Ct., Pen. Cty., Jan. 28, 1982), Board Order aff'd, City of Bangor v. AFSCME, Council 74, 449 A.2d 1129 (Me. 1982). The School Committee will also be ordered to begin paying salary increases due effective July 1, 1991. If 90/91 performance evaluations have been completed and performance points awarded as of the date of this Order, back pay due shall be paid within 30 days of the date of this Order, with interest beginning to accrue on the 31st day, and paychecks thereafter shall reflect the increases. If the 90/91 performance evaluation process has not been completed, it shall be completed in a timely fashion, with increases reflected in the next regularly scheduled paycheck thereafter. Interest will begin to accrue on the day after the date of that paycheck. ___________________________________ 17Normally we would order payment of interest from the date the violation occurred, in order to make administrators whole for the losses they have incurred. We decline to do so, in order to balance the interests of the parties. First, the Association made the choice to delay filing its complaint until well after the violation occurred. Second, we are cogni- zant of the fact that our decision to overturn Easton, inconsistent as it is with the rest of our case law, was not necessarily predictable. Consequently, it is appropriate that we avoid in effect punishing the School Committee, while at the same time rectifying a major inconsistency in our case law. -25- Finally, the School Committee will be ordered to continue to calculate and pay salaries in accordance with Appendix I until such time as a suc- cessor agreement is negotiated and signed that provides otherwise. Refusal to bargain during negotiations for a successor agreement The Association charges that during negotiations for a successor agreement, the School Committee refused to bargain collectively in violation of section 954(1)(E) of MPELRL by refusing to negotiate over four mandatory subjects, withdrawing items substantially agreed upon, and changing its bargaining position in retaliation for proposals made by the Association. The record does not support the Association's charge. On a number of occasions this Board has outlined the factors relevant to a determination of whether a party has bargained in good faith: Among such indicators of good faith bargaining are whether the parties have: met and negotiated at reasonable times, observed the negotiating ground rules, offered counterproposals, made compromises, accepted the other party's positions, reduced tenta- tive agreements to writing, and participated in the dispute reso- lution procedures. Auburn Firefighters Assoc. v. Valente, No. 87-19, slip op. at 10, 10 NPER ME-18017 (Me.L.R.B. Sept. 11, 1987), citing Waterville Teachers Assoc. v. Waterville Bd. of Educ., No. 82-11, slip op. at 4, 4 NPER 20-13011 (Me.L.R.B. Feb. 4, 1982); and Sanford Highway Unit v. Town of Sanford, No. 79-50, slip op. at 10-11, 1 NPER 20-10012 (Apr. 5, 1979), aff'd, No. CV-79-171, -172, -178 & 186 (Consolidated) (Me. Super. Ct., York Cty., Apr. 14, 1980), aff'd, 411 A.2d 1010 (Me. 1980). Parties are required to confer and negotiate in good faith, but "neither party shall be compelled to agree to a proposal or be required to make a concession." 26 M.R.S.A. 965(1)(C) (1988). In connection with the alleged refusal to bargain over four mandatory subjects (just cause, maintenance of benefits, reductions in force and meet and consult), only one of these subjects (just cause) was placed on the table at the outset of formal negotiations in February of 1990. The other three were added to the Association's bargaining proposals at various -26- times during the prolonged negotiations for a successor agreement: one was proposed in November of 1990 (maintenance of benefits), and the other two were not proposed until February 27, 1991. In addition, the School Committee provided written reasons for rejecting the two earlier proposals, and the Association never attempted to address School Committee concerns by making counterproposals on these subjects. In these circumstances, we decline to find that the School Committee's tough stance on these issues rose to the level of a prohibited practice. With regard to withdrawal of items substantially agreed upon and/or the employer's change of bargaining position in retaliation, it is not clear from the record that tentative agreements were even reached on the subjects at issue. Moreover, during the course of negotiations the Association also changed its bargaining position -- adding items for discussion as late as a year after formal negotiations had commenced. Since the parties had no ground rule setting a time limit for putting items on the table, and no mechanism for memorializing and being bound by tenta- tive agreements on individual subjects, the negotiations were predictably unproductive and at times, rather contentious. Looking at the totality of the circumstances, we decline to place sole responsibility on the employer for the failure of the parties to reach final agreement on a successor. Accordingly, this allegation will be dismissed. ORDER On the basis of the foregoing findings of fact 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) (1988), it is hereby ORDERED: 1. That the School Committee shall: a. Cease and desist from refusing to bargain with members of the Auburn administrators' bargaining unit by unilaterally changing the wages paid to unit members pending nogoti- ations for a successor agreement; b. Take the following affirmative actions that are necessary to effectuate the policies of MPELRL: -27- i. Reimburse members of the bargaining unit for wages lost during the period from July 1, 1990, through June 30, 1991. Wages shall be calculated in accord- ance with the two-component plan in Appendix I of the 88/90 agreement. Payment shall be made within 30 days of the date of this Order. Interest shall begin to accrue on the 31st day. ii. Begin paying bargaining unit members increases due effective July 1, 1991, in accordance with Appendix I of the 88/90 agreement. If 90/91 performance evalu- ations have been completed and performance points awarded as of the date of this Order, back pay due shall be paid within 30 days of the date of this order (with interest to begin accruing on the 31st day), and paychecks thereafter shall reflect the increases. If the 90/91 evaluation process has not been completed as of the date of this order, it shall be completed in a timely fashion, with increases calculated according to Appendix I to be reflected in the next regularly scheduled paycheck thereafter. Interest will begin to accrue on the day after the date of that paycheck. iii. Continue to calculate and pay administrators' salaries in accordance with Appendix I of the 88/90 agreement until such time as a successor agreement is negotiated and signed that provides otherwise. 2. That the Association's remaining allegations are dismissed. 3. That requests by the Association and the School Committee for attorney's fees and costs are denied. Dated at Augusta, Maine, this 8th day of October, 1991. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A 968(5)(F) (1988), to seek review of this Decision /s/_________________________________ and order by the Superior Court. Howard Reiche, Jr. To initiate such a review an Employer Representative appealing party must file a complaint with the Superior Court within fifteen (15) days /s/_________________________________ of the date of receipt hereof, George W. Lambertson and otherwise comply with the Employee Representative requirements of Rule 80C of the Maine Rules of Civil Procedure. Chair Peter T. Dawson filed a separate opinion, dissenting in part. -28- OPINION I agree with the results reached by my colleagues in all respects except one. I am persuaded in part by the School Committee's affirmative defense that the Association is barred by the six-month rule from pressing its claim with respect to the change in wages pending negotiations for a successor agreement. I conclude that the Association knew or should have known by August of 1990 that the School Committee did not intend to pay salary increases pending negotiations. First, Appendix I of the 88/90 agreement between the parties requires that goal attainment for salary be determined by July 30th. Both parties, during the 89/90 school year, complied with the process component require- ments for determining performance adjustments to administrator salaries, including the July 30th deadline. However, the superintendent did not pro- vide administrators with their earned performance points until October of 1990. One administrator (an Association representative at the bargaining table), when asked when the superintendent had advised him of his perfor- mance points for that school year, testified: We had to request that process be completed. The goals had been set. We completed the evaluation of goals, and within the re- quired time frame, which was by July 30 of last--of '90, last summer, and he responded to us, I believe, in October with those points. While the 88/90 agreement specifies neither how quickly performance points are to be given after goal attainment is determined, nor how quickly those points are to be reflected in salaries (retroactive to July 1st), I believe that the Association should reasonably have known by August that there was a problem. My second reason for concluding that the six-month bar is applicable is the testimony of another administrator, Association president Steve Galway. The following exchange took place between Mr. Galway and counsel for the School Committee: Q. Did the Association make a conscious decision not to file a prohibited practice complaint on or around July 1, 1990? A. We made a conscious effort to resolve our salary adjustments, yes. -29- Q. So you made a policy decision as an association not to file a prohibited practice complaint at that time? A. No, we did not. Q. It was simply not thought of at that time? A. We chose to proceed as we have. Q. So you were aware of what your legal rights were at that time but chose not to exercise them? A. They're in the contract. I guess that's correct. I conclude from this exchange that the Association made a conscious deci- sion not to pursue its prohibited practice claim, wanting not to risk souring negotiations and hoping the matter would be resolved at the bargaining table. Filing a prohibited practice complaint does indeed pre- sent such a risk, and the Association understandably chose to hold off. Unfortunately, it held off too long, and in doing so, ran afoul of the six- month requirement for filing claims under MPELRL. Accordingly, I would dismiss the Association's wage claim insofar as it seeks payment of salary increases for the 90/91 year. Since a new event occurred when the administrators' performance evaluations were completed and points were (or shortly will be) given based on performance during the 90/91 school year, I would find a separate and distinct violation and order the School Committee to begin paying salary increases for the 91/91 year, retroactive to July 1, 1991, utilizing the newly earned performance points and the appropriate comparable district adjustment. The base salary for calculating these two adjustments would be the salary paid during 89/90, minus the performance point adjustment for that year. Dated at Augusta, Maine, this 8th day of October, 1991. MAINE LABOR RELATIONS BOARD /s/_________________________________ Peter T. Dawson Chair -30- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-19 Issued: November 21, 1991 _________________________________ ) AUBURN SCHOOL ADMINISTRATORS ) ASSOCIATION, LOCAL 67A, AFSA, ) ) Complainant, ) DECISION AND ORDER ) ON RESPONDENT'S MOTION TO v. ) STAY DECISION AND ORDER ) AND MOTION TO RECONSIDER AUBURN SCHOOL COMMITTEE, ) ) Respondent. ) _________________________________) On October 8, 1991, Respondent Maine Labor Relations Board ("Board") issued a decision holding that the Auburn School Committee ("School Committee") had violated 26 M.R.S.A. 964(1)(E) (1988) by failing, pending negotiations for a successor collective bargaining agreement, to maintain the status quo with respect to administrator salaries, as reflected in an expired agreement between the School Committee and the Auburn School Administrators Association, Local 67A, AFSA ("Association"). It ordered the School Committee, among other things, to reimburse members of the bargaining unit for wages lost as a result of said violation. The Board ordered interest to be paid prospectively only. On October 21 and 23, 1991, respectively, the Association and the School Committee filed petitions for review of the Board's decision and order under Rule 80C of the Maine Rules of Civil Procedure. On October 30, 1991, pursuant to 5 M.R.S.A 11004, the School Committee filed a Motion to Stay Decision and Order accompanied by a Memorandum in Support of Motion. Informed by telephone that its motion should have been filed in Superior Court rather than with the Board, pursuant to 26 M.R.S.A. 968(5)(F), the School Committee requested a hearing and filed a supplemental letter requesting that the Board also reconsider its decision to apply its original order retroactively. The Association filed an Objection to Motion to Stay Decision and Order on November 7, 1991, objecting to both the motion to -1- stay and the motion to reconsider. A hearing on the motions was set for November 14, 1991. On November 13th, George S. Isaacson, Esquire, counsel for the School Committee, informed the Board that the School Committee wished to waive its right to oral argument, and that the Association had agreed to the same. According- ly, the hearing was cancelled. The Board, consisting of Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Employee Repre- sentative George W. Lambertson, deliberated the matter on the basis of the written submissions previously provided by the parties. JURISDICTION The jurisdiction of the Board to hear prohibited practice cases, and to render decisions and orders therein, lies in 26 M.R.S.A. 968(5) (1988), as amended by P.L. 1991, ch. 143. DISCUSSION Pursuant to 5 M.R.S.A. 11004, the School Committee asserts that implementation of the Board's order will cause it irreparable injury, that there is a substantial likelihood that the School Committee will succeed on the merits, and that a stay will cause no substantial harm either to the Association or to the general public. The Association responds that pur- suant to 26 M.R.S.A. 968(5)(F), only the Superior Court has jurisdiction to grant a stay, and that in any case, the request for stay is without legal or equitable merit. Section 968(5)(F) of the Municipal Public Employees Labor Relations Law, 26 M.R.S.A. 968(5)(F) (1988), as amended by P.L. 1991, ch. 143, pro- vides, in relevant part, as follows: Pending review and upon application of any party in interest, the court may grant such temporary relief or restraining order and may impose such terms and conditions as it deems just and proper; provided that the board's decision is not stayed except when it is clearly shown to the satisfaction of the court that substantial and irreparable injury will be sustained or that there is a sub- stantial risk of danger to the public health or safety. -2- In Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010 (Me. 1980), the Law Court made it clear that the judicial review provisions of each public sector labor statute are a "uniquely self-contained statutory whole to be preserved intact," and therefore, through Rule 80B of the Maine Rules of Civil Procedure, govern judicial review of Board decisions in spite of the Administrative Procedure Act. Id. at 1015. Rule 80C was subsequently created so that review of State and local governmental actions would be reviewed under two different rules, and Rule 80C rather than 80B is now operative for the labor statutes. MSEA v. State Development Office, 499 A.2d 165, 168 n. 6 (Me. 1985). See also P.L. 1991, ch. 143 (which amends the labor statutes to refer to Rule 80C). The change from Rule 80B to Rule 80C is not inconsistent with the Sanford decision. Rule 80C is simply the procedural mechanism for seeking judicial review of Board decisions; as Rule 80C itself indicates, it governs such review except to the extent inconsistent with the provisions of a statute. The reference in Rule 80C to 5 M.R.S.A. 11004 regarding application for a stay is inconsistent with 26 M.R.S.A. 968(5)(F), and therefore is not applicable. This reading of the stay language in 26 M.R.S.A. 968(5)(F) is consistent with the more general intent of that provision to provide a speedy and efficient resolution of collective bargaining disputes in the public sector. The Board is without the authority to grant a stay.1 Accordingly, the School Committee's Motion to Stay Decision and Order will be denied. We will also deny the School Committee's motion to reconsider the retroactive application of our October 8th decision. Although the Board's Rules and Procedures do not provide parties with an opportunity to seek reconsideration of a decision and order, there may be exceptional cir- cumstances in which such reconsideration would be warranted. Such circum- ___________________________________ 1The Board has been presented with this question on one previous occa- sion. In AFSCME Council 93 v. Governor McKernan and State of Maine, No. 91-18 (June 5, 1991) (Decision and Order on Motion for Stay of Final Agency Action), the Board did not grant the State's request for a stay, but modified its original order to allow the State an additional period of time to comply. It did so by agreement of the parties. -3- stances might include those available to a party in a judicial context -- mistake, inadvertence, surprise or excusable neglect; newly discovered evidence; or fraud, misrepresentation or misconduct.2 No such allegation has been made here. Rather, the School Committee asserts that the Board did not adequately consider the issue of retroactivity, because this issue was not addressed in the parties' briefs or oral argument. This argument is not persuasive. In its main brief, the Association addressed the Easton case and its weaknesses, subsequent Board cases dealing with the definition of the status quo, and the law of the status quo in other jurisdictions, at length. Implicit in that discussion3 and in any consideration of whether or not to overturn Easton was how to apply any new rule that the Board might announce. The parties were given the opportunity to file reply briefs, in which the School Committee could have addressed the issue of retroactivity. It chose not to file a reply brief, on this or any other issue. We decline to reopen the record for the purpose of giving the School Committee the opportunity to brief an issue it could have briefed earlier. In the interests of expeditious resolution of this matter, any errors of law that the School Committee believes were committed by the Board should be addressed in its Rule 80C appeal. ORDER On the basis of the record at hearing, and pursuant to and by virtue of the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(5) (1988), as amended by P.L. 1991, ch. 143, it is hereby ORDERED: 1. That the Auburn School Committee's Motion to Stay Decision and Order filed on October 30, 1991, is denied. ___________________________________ 2See, for instance, Rule 60 of the Maine Rules of Civil Procedure. 3And in the retroactive relief requested by the Association in its complaint. -4- 2. That the Auburn School Committee's Motion to Reconsider is denied. Dated at Augusta, Maine, this 21st day of November, 1991. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (1988), as /s/________________________________ amended by P.L. 1991, ch. 143, to Peter T. Dawson seek review of this Decision Chair and Order by the Superior Court. To initiate such a review an appealing party must file a /s/_________________________________ complaint with the Superior Howard Reiche, Jr. Court within fifteen (15) days Employer Representative of the date of issuance of the Decision and Order, and other- wise comply with the require- /s/_________________________________ ments of Rule 80C of the Maine George W. Lambertson Rules of Civil Procedure. Employee Representative -5-