Maine State Employees Association v. City of Lewiston and Lewiston School
Committee, MLRB Nos. 92-17 & -18 (Sept. 11, 1992), Order Denying Respondents'
Motion to Dismiss, No. CV-92-400 (Me. Super. Ct., And. Cty., Nov. 30, 1992), 
Order Granting Motion for Temporary Restraining Order, Nos. CV-92-480 & -400
(Jan. 21, 1993), Decision Vacating Board Order, Nos. CV-92-400 & -480 (Feb. 25, 
1993), Law Court Decision Vacating Superior Court Decision for Lack of 
Jurisdiction, sub nom, City of Lewiston v. Maine State Employees Association,
638 A.2d 739 (Me. 1994)

STATE OF MAINE                                MAINE LABOR RELATIONS BOARD
					      Case Nos. 92-17 and -18
					      Issued:  September 11, 1992

_______________________________________
				       )
MAINE STATE EMPLOYEES ASSOCIATION,     )
				       )
		     Complainant,      )
				       )
		v.                     )
				       )
CITY OF LEWISTON                       )
				       )       DECISION AND ORDER
	       and                     )
				       )
LEWISTON SCHOOL COMMITTEE,             )
				       )
		     Respondents.      )
_______________________________________)

     On December 30, 1991, the Maine State Employees Association ("MSEA")
filed two prohibited practice complaints with the Maine Labor Relations
Board ("Board"), one against the City of Lewiston ("City") and the other
against the Lewiston School Committee ("School Comittee"). The complaints
allege that upon expiration of the collective bargaining agreement between
the parties, the employers unilaterally, and without reaching impasse in
negotiations for a successor contract, suspended all step and anniversary
increases for their respective employees, in violation of sections
964(1)(A) and (E) of the Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A.  964(1)(A) and (E) (1988). The respondents denied
the allegations. In addition, they asserted that MSEA had failed to
exhaust its grievance arbitration remedies and that the complaints are, or
may be, barred by the applicable statute of limitations.1

     On January 28, 1992, complainant and respondents jointly requested that
the two matters be consolidated and that they also be stayed until thirty
days after Superior Court resolution of the appeal in another matter in
which similar legal issues had arisen. Both requests were granted. Upon
resolution (withdrawal) of that appeal, the parties were so informed, and
on May 18, 1992, met with staff attorney Judith A. Dorsey for the purpose
of attempting to reach a stipulated record. Timothy L. Belcher, Esquire,
accompanied by negotiator Pamela Morin, represented MSEA, and Alfred C.

_______________________

     1The respondents have since dropped these defenses.
					 
				   -1-

Frawley, Esquire, accompanied by Assistant City Administrator Mark Adams,
represented both the City and the School Committee. Through the diligent
effort and cooperation of the parties, a stipulation of relevant facts was
reached, obviating the need for an evidentiary hearing. Those stipulations
have been incorporated herein.

     The parties filed posthearing briefs and replies, the last of which was
received on July 13, 1992. The Board, consisting of Chair Peter T. Dawson,
Employer Representative Howard Reiche, Jr., and Employee Representative
George W. Lambertson, deliberated the case on August 6, 1992, having reviewed
the factual stipulations, contracts and briefs submitted by the parties.

			       JURISDICTION
	       
     The jurisdiction of the Board to hear these consolidated cases and to
render a decision and order lies in 26 M.R.S.A.  968(5) (1988 and Supp. 1991).
			 
			       STIPULATIONS

     1.   MSEA is the bargaining agent, within the meaning of 26 M.R.S.A.
 962(2) (1988), for the general government bargaining unit, which consists
of employees of the City of Lewiston and employees of the Lewiston School
Committee. The City and the School Committee are both public employers,
within the meaning of 26 M.R.S.A.  962(7) (Supp. 1991), as amended by
P.L. 1992, ch. 843, of their respective employees in the unit.

     2.   The first collective bargaining agreement between MSEA and the
respondent employers took effect on December 20, 1984, after MSEA was
elected to be the bargaining agent for the unit. It expired on December
24, 1986 ("84-86 agreement"). Two successor agreements have been nego-
tiated and implemented, the last of which expired on June 30, 1991.

     3.   The three collective bargaining agreements submitted by the parties
as exhibits are true and correct copies of all collective bargaining
agreements between the parties to date.

     4.   For the successor agreement covering the period December 25, 1986
to June 30, 1989 ("86-89 agreement"), negotiations extended beyond the
expiration date of the prior agreement. Pay to unit members after expira-
tion remained at the dollar amounts of pay as of the last date of the
expired contract, until the successor contract was agreed to and imple-
mented. By the terms of the 86-89 agreement, after its execution on April

				  -2-

29, 1988, each employee was paid "an amount equal to 2.7% of the gross
wages earned by said employee during the period from January 1, 1987 to
June 30, 1987." New salary scales negotiated under the 86-89 agreement
went into effect on July 1, 1987.

     5.   For the second successor agreement (covering the period July 1,
1989 to June 30, 1991), negotiations again extended beyond the expiration
date of the prior agreement. Once again, pay to unit members after expira-
tion remained at the dollar amounts of pay as of the last date of the
expired contract. Once the new contract was signed on December 7, 1989,
employees were paid, retroactive to July 1, 1989, under the new salary
scales contained in the new agreement.

     6.   In any instance where a January or July step increase became due
during negotiations for a successor contract, said step increase was retro-
actively implemented once the successor contract was signed.

     7.   Negotiations for a successor to the 89-91 agreement began on
April 23, 1991.

     8.   On June 18, 1991, at the request of MSEA, the parties agreed to
place wage negotiations in "hiatus" until agreements were reached between
the respondents and other bargaining agents representing employees of the
respondents. From July through September of 1991 the parties did meet on
three occasions to negotiate over contract matters. All other meetings
between the parties, which continue to this date, have been informational
only. No impasse has been reached in the negotiations.

     9.   Employees of the general government unit are continuing to receive
the dollar amount of wages that they were receiving on the last day of the
expired 89-91 agreement.

			      FINDINGS OF FACT

     Upon review of the contracts placed in the record as exhibits, the
Board makes the following additional findings:

     1.   Wage plans in the three contracts are as follows:

				   -3-

			 84 - 86 AGREEMENT

WAGE PLAN                           APPENDIX B, Page 2

		   EFFECTIVE DECEMBER 20, 1984


Class                          Step
Grade   ______________________________________________________
	    I       II     III     IV       V      VI*    VII**                     
		

G - 5
Hrly      4.92    5.07    5.17    5.27    5.38    5.49    5.71
37.5    184.50  190.13  193.88  197.63  201.75  205.88  214.13
40.0    196.80  202.80  206.80  210.80  215.20  219.60  228.40

G - 6
Hrly      5.09    5.25    5.35    5.45    5.57    5.68    5.91
37.5    190.88  196.88  200.63  204.38  208.88  213.00  221.63
40.0    203.60  210.00  214.00  218.00  222.80  227.20  236.40

G - 7
Hrly      5.27    5.43    5.54    5.65    5.76    5.88    6.12
37.5    197.63  203.63  207.75  211.88  216.00  220.50  229.50
40.0    210.80  217.20  221.60  226.00  230.40  235.20  244.80

G - 8
Hrly      5.45    5.62    5.73    5.84    5.96    6.09    6.33
37.5    204.38  210.75  214.88  219.00  223.50  228.38  237.38
40.0    218.00  224.80  229.20  233.60  238.40  243.60  253.20

G - 9
Hrly      5.65    5.82    5.93    6.05    6.17    6.30    6.55
37.5    211.88  218.25  222.38  226.88  231.38  236.25  245.63
40.0    226.00  232.80  237.20  242.00  246.80  252.00  262.00

G - 10
Hrly      5.84    6.02    6.14    6.26    6.39    6.52    6.78
37.5    219.00  225.75  230.25  234.75  239.62  244.50  254.25
40.0    233.60  240.80  245.60  250.40  255.60  260.80  271.20

G - 11
Hrly      6.05    6.23    6.36    6.48    6.61    6.75    7.02
37.5    226.88  233.62  238.50  243.00  247.88  253.12  263.25
40.0    242.00  249.20  254.40  259.20  264.40  270.00  280.80

G - 12
Hrly      6.26    6.45    6.58    6.71    6.84    6.98    7.26
37.5    234.75  241.88  246.75  251.63  256.50  261.75  272.25
40.0    250.40  258.00  263.20  268.40  273.60  279.20  290.40

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay periods of January and July of
each year.


WAGE PLAN                                APPENDIX B, Page 3
							   
		       EFFECTIVE DECEMBER 20, 1984

Class                         Step
Grade  ___________________________________________________________
	   I       II     III     IV       V      VI*    VII**                    

G - 13
Hrly      6.48    6.68    6.81    6.94    7.08    7.23    7.52
37.5    243.00  250.50  255.38  260.25  265.50  271.13  282.00
40.0    259.20  267.20  272.40  277.60  283.20  289.20  300.80

G - 14
Hrly      6.71    6.91    7.05    7.18    7.33    7.48    7.78
37.5    251.63  259.13  264.38  269.25  274.88  280.50  291.75
40.0    265.40  276.40  282.00  287.20  293.20  299.20  311.20

G - 15
Hrly      6.94    7.15    7.29    7.43    7.59    7.74    8.05
37.5    262.25  268.13  273.38  278.63  284.63  290.25  301.88
40.0    277.60  286.00  291.60  297.20  303.60  309.60  322.00

G - 16
Hrly      7.18    7.40    7.55    7.69    7.85    8.02    8.34
37.5    269.25  277.50  283.13  288.38  294.38  300.75  312.75
40.0    287.20  296.00  302.00  307.60  314.00  320.80  333.60

G - 17
Hrly      7.43    7.66    7.81    7.96    8.13    8.30    8.63
37.5    278.63  287.25  292.88  298.50  304.88  311.25  323.63
40.0    297.20  306.40  312.40  318.40  325.20  332.00  345.20

G - 18
Hrly      7.69    7.93    8.09    8.24    8.41    8.57    8.93
37.5    288.38  297.38  303.38  309.00  315.38  321.38  334.88
40.0    307.60  317.20  323.60  329.60  336.40  342.80  357.20

G - 19
Hrly      7.96    8.21    8.37    8.53    8.71    8.89    9.24
37.5    298.50  307.88  313.88  319.88  326.63  333.38  346.50
40.0    318.40  328.40  334.80  341.20  348.40  355.60  369.60

G - 20
Hrly      8.24    8.49    8.66    8.83    9.01    9.20    9.57
37.5    309.00  318.38  324.75  331.13  337.88  345.00  358.88
40.0    329.60  339.60  346.40  353.20  360.40  368.00  382.80

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay periods of January and July of
each year.


WAGE PLAN                              APPENDIX B, Page 4

		     EFFECTIVE DECEMBER 19, 1985

Class                          Step
Grade   _______________________________________________________
	   I       II     III     IV       V      VI*    VII*

G - 5
Hrly      5.19    5.35    5.45    5.56    5.68    5.79    6.02
37.5    194.63  200.63  204.38  208.50  213.00  217.13  225.75
40.0    207.60  214.00  218.00  222.40  227.20  231.60  240.80

G - 6
Hrly      5.37    5.54    5.64    5.75    5.88    5.99    6.23
37.5    201.38  207.75  211.50  215.63  220.50  224.63  233.63
40.0    214.80  221.60  225.60  230.40  235.20  239.60  249.20

G - 7
Hrly      5.56    5.73    5.84    5.95    6.08    6.20    6.45
37.5    208.50  214.88  219.00  223.13  228.00  232.50  241.88
40.0    222.40  229.20  233.60  238.80  243.20  248.00  258.00

G - 8
Hrly      5.75    5.93    6.04    6.16    6.30    6.42    6.67
37.5    215.63  222.38  226.50  231.00  236.25  240.75  250.13
40.0    230.00  237.20  241.60  246.40  252.00  256.80  266.80

G - 9
Hrly      5.96    6.14    6.25    6.38    6.52    6.64    6.91
37.5    223.50  230.25  234.38  239.25  244.50  249.00  259.13
40.0    238.40  245.60  250.00  254.80  260.80  265.60  276.40

G - 10
Hrly      6.16    6.35    6.47    6.60    6.75    6.88    7.15
37.5    231.00  238.13  242.63  247.50  253.13  258.00  268.13
40.0    246.40  254.00  258.80  264.00  270.00  275.20  286.00

G - 11
Hrly      6.38    6.58    6.70    6.83    6.98    7.11    7.40
37.5    239.25  246.75  251.25  256.13  261.75  266.63  277.50
40.0    255.20  263.20  268.00  273.20  279.20  284.40  296.00

G - 12
Hrly      6.60    6.81    6.93    7.07    7.23    7.37    7.66
37.5    247.50  255.38  259.88  265.13  271.13  276.38  287.25
40.0    264.00  272.40  277.20  282.80  289.20  294.80  306.40

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay periods of January and July of
each year.


WAGE PLAN                          APPENDIX B, Page 5

		  EFFECTIVE DECEMBER 19, 1985

Class                          Step
Grade   ________________________________________________________                          
	   I       II     III      IV      V      VI*     VII**

G - 13
Hrly      6.83    7.04    7.18    7.32    7.48    7.62    7.93
37.5    256.13  264.00  269.25  274.50  280.50  285.75  297.38
40.0    273.20  281.60  287.20  292.80  299.20  304.80  317.20

G - 14
Hrly      7.07    7.29    7.43    7.58    7.74    7.89    8.20
37.5    265.13  273.38  278.63  284.25  290.25  295.88  307.50
40.0    282.80  291.60  297.20  303.20  309.60  315.60  328.00

G - 15
Hrly      7.32    7.55    7.69    7.84    8.01    8.17    8.49
37.5    274.50  283.13  238.38  294.00  300.38  306.38  318.38
40.0    292.80  302.00  307.60  313.60  320.40  326.80  339.60

G - 16
Hrly      7.58    7.81    7.96    8.12    8.29    8.45    8.79
37.5    284.25  292.88  298.50  304.50  310.88  316.88  329.63
40.0    303.20  312.40  318.40  324.80  331.60  338.00  351.60

G - 17
Hrly      7.84    8.08    8.24    8.40    8.58    8.75    9.10
37.5    294.00  303.00  309.00  315.00  321.75  328.13  341.25
40.0    313.60  323.20  329.60  336.00  343.20  350.00  364.00

G - 18
Hrly      8.12    8.37    8.52    8.70    8.88    9.06    9.42
37.5    304.50  313.88  319.50  326.25  333.00  339.75  353.25
40.0    324.80  334.80  340.80  348.00  355.20  362.40  376.80

G - 19
Hrly      8.40    8.66    8.82    9.00    9.19    9.37    9.74
37.5    315.00  324.75  330.75  337.50  344.63  351.38  365.25
40.0    336.00  346.40  352.80  360.00  367.60  374.80  389.60

G - 20
Hrly      8.70    8.96    9.13    9.31    9.52    9.70   10.09
37.5    326.25  336.00  342.38  349.13  357.00  363.75  378.38
40.0    348.00  358.40  365.20  372.40  380.80  388.00  403.60

*Effective on the emloyee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay periods of January and July of
each year.

				 -4-


		      86 - 89 AGREEMENT

WAGE PLAN                              APPENDIX B, Page 2

			EFFECTIVE July 1, 1987
     
Class                            Step
Grade  ____________________________________________________________ 
		I       II     III     IV       V      VI*    VII**


G - 5  Hrly    5.40    5.56    5.67    5.78    5.91    6.02    6.26
37.5         202.50  208.50  212.63  216.75  221.63  225.75  234.75
40.0         216.00  222.40  226.80  231.20  236.40  240.80  250.40


G - 6 Hrly     5.59    5.76    5.87    5.98    6.12    6.23    6.48
37.5         209.63  216.00  220.13  224.25  229.50  233.63  243.00
40.0         223.60  230.40  234.80  239.20  244.80  249.20  259.20

G - 7 Hrly     5.78    5.96    6.07    6.19    6.32    6.45    6.71
37.5         216.75  223.50  227.63  232.63  237.00  241.88  251.63
40.0         231.20  238.40  242.80  247.60  252.80  258.00  268.40

G - 8 Hrly     5.98    6.17    6.28    6.41    6.55    6.68    6.94
37.5         224.25  231.38  235.50  240.38  245.63  250.50  260.25
40.0         239.20  246.80  251.20  256.40  262.00  267.20  277.60

G - 9 HrLy     6.20    6.39    6.50    6.64    6.78    6.91    7.19
37.5         232.50  239.63  243.75  249.00  254.25  259.13  269.63
40.0         239.20 246.80   251.20  256.40  262.00  267.20  277.60

G - 10 Hrly    6.41    6.60    6.73    6.86    7.02    7.16    7.44
37.5         240.38  247.50  252.38  257.25  263.25  268.50  279.00
40.0         256.40  264.00  269.20  274.40  280.80  286.40  297.60

G - 11 Hrly    6.64    6.84    6.97    7.10    7.26    7.39    7.70
37.5         249.00  256.50  261.38  266.25  272.25  277.13  288.75
40.0         265.60  273.60  278.80  284.00  290.40  295.60  308.00

G - 12 Hrly    6.86    7.08    7:21    7.35    7.52    7.67    7.97
37.5         257.25  265.50  270.38  275.63  282.00  287.63  298.88
40:0         274.40  283.20  288.40  294.00  300.80  306.80  318.80

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay periods of January and July of
each year.


WAGE PLAN                                     APPENDIX B, Page 3
							    
			EFFECTIVE July 1, 1987

Class                           Step
Grade   ____________________________________________________________
		I      II      III     IV      V     VI*     VII**


G - 13 Hrly    7.10    7.32    7.47    7.61    7.78    7.93    8.25
37.5         266.25  274.50  280.13  285.38  291.75  297.38  309.38
40.0         284.00  292.80  298.80  304.40  311.20  317.20  330.00

G - 14 HrLy    7.35    7.58    7.73    7.88    8.05    8.21    8.53
37.5         275.63  284.25  289.88  295.50  301.88  307.88  319.88 
40.0         294.00  303.20  309.20  315.20  322.00  328.40  341.20

G - 15 Hrly    7.61    7.85    8.00    8.15    8.33    8.50    8.83
37.5         285.38  294.38  300.00  305.63  312.38  318.75  331.13
40.0         304.40  314.00  320.00  326.00  333.20  340.00  353.20

G - 16 Hrly    7.88    8.12    8.28    8.45    8.62    8.79    9.14
37.5         295.50  304.50  310.50  316.88  323.25  329.63  342.75                   
40.0         315.20  324.80  331.20  338.00  344.80  351.60  365.60
	
G - 17 Hrly    8.15    8.40    8.57    8.74    8.92    9.10    9.46
37.5         305.63  315.00  321.38  327.75  334.50  341.25  354.75
40.0         326.00  336.00  342.80  349.60  356.80  364.00  378.40

G - 18 Hrly    8.45    8.71    8.86    9.05    9.24    9.42    9.80
37.5         316.88  326.63  332.25  339.38  346.50  353.25  367.50
40.0         338.00  348.40  354.40  362.00  369.60  376.80  392.00

G - 19 Hrly    8.74    9.01    9.17    9.36    9.56    9.75   10.13
37.5         327.75  337.88  343.88  351.00  358.50  365.63  379.88
40.0         349.60  360.40  366.80  374.40  382.40  390.00  405.20

G - 20 Hrly    9.05    9.32    9.50    9.68    9.90   10.09   10.49
37.5         339.38  349.50  356.25  363.00  371.25  378.38  393.38
40.0         362.00  372.80  380.00  387.20  396.00  403.60  419.60

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay per iods of January and July
of each year.


WAGE PLAN                                   APPENDIX B, Page 4

		      EFFECTIVE July 1, 1988

Class                          Step
Grade  ______________________________________________________________
		I       II     III      IV      V       VI*    VII**

G - 5 Hrly     5.67    5.84    5.95    6.07    6.21    6.32    6.57
37.5         212.63  219.00  223.13  227.63  232.88  237.00  246.38
40.0         226.80  233.60  238.00  242.80  248.40  252.80  262.80

G - 6 Hrly     5.87    6.05    6.16    6.28    6.43    6.54    6.80
37.5         220.13  226.88  231.00  235.50  241.13  245.25  255.00
40.0         234.80  242.00  246.40  251.20  257.20  261.60  272.00

G - 7 Hrly     6.07    6.26    6.37    6.50    6.64    6.77    7.05
37.5         227.63  234.75  238.88  243.75  249.00  253.88  264:38
40.0         242.80  250.40  254.80  260.00  265.60  270.80  282.00

G - 8 Hrly     6.28    6.48    6.59    6.73    6.88    7.01    7.29
37.5         235.50  243.00  247.13  252.38  258.00  262.88  273.38
40.0         251.20  259.20  263.60  269.20  275.20  280.40  291.60

G - 9 Hrly     6.51    6.71    6.83    6.97    7.12    7.26    7.55
37.5         244.13  251.63  256.13  261.38  267.00  272.25  283.13
40.0         260.40  268.40  273.20  278.80  284.80  290.40  302.00

G - 10 Hrly    6.73    6.93    7.07    7.20    7.37    7.52    7.81
37.5         252.38  259.88  265.13  270.00  276.38  282.00  292.88
40.0         269.20  277.20  282.80  288.00  294.80  300.80  312.40

G - 11 Hrly    6.97    7.18    7.32    7.46    7.62    7.76    8.09
37.5         261.38  269.25  274.50  279.75  285.75  291.00  303.38
40.0         278.80  287.20  292.80  298.40  304.80  310.40  323.60

G - 12 Hrly    7.20    7.43    7.57    7.72    7.90    8.05    8.37
37.5         270.00  278.63  283.88  289.50  296.25  301.88  313.88
40.0         288.00  297.20  302.80  308.80  316.00  322.00  324.80

*Effective on the employee's seventh (7th) anniversary.     
**Effective on the employee's fifteenth (15th) anniversary

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay per iods of January and July 
of each year.

     
WAGE PLAN                                APPENDIX B, Page 5

			  EFFECTIVE JULY 1, 1988

Class                            Step
Grade  _______________________________________________________________
		 I      II     III      IV      V      VI*     VII**

G - 13 HrLy    7.46    7.69    7.84    7.99    8.17    8.33    8.66
37.5         279.75  288.38  294.00  299.63  306.38  312.38  324.75
40.0         298.40  307.60  313.60  319.60  326.80  333.20  346.40

G - 14 Hrly    7.72    7.96    8.12    8.27    8.45    8.62    8.96
37.5         289.50  298.50  304.50  310.13  316.88  323.25  336.00
40.0         308.80  318.40  324.80  330.80  338.00  344.80  358.40

G - 15 Hrly    7.99    8.24    8.40    8.56    8.75    8.92    9.27
37.5         299.63  309.00  315.00  321.00  328.13  334.50  347.63
40.0         319.60  329.60  336.00  342.40  350.00  356.80  370.80

G - 16 Hrly    8.27    8.53    8.69    8.87    9.05    9.23    9.60
37.5         310.13  319.88  325.88  332.63  339.38  346.13  360.00
40.0         330.80  341.20  347.60  354/80  362.00  369.20  384.00

G - 17 Hrly    8.56    8.82    9.00    9.18    9.37    9.56    9.93
37.5         321.00  330.75  337.50  344.25  351.38  358.50  372.38
40.0         342.40  352.80  360.00  367.20  374.80  382.40  397.20

G - 18 Hrly    8.87    9.15    9.30    9.50    9.70    9.89   10.29
37.5         332.63  343.13  348.75  356.25  363.75  370.88  385.88
40.0         354.80  366.00  372.00  380.00  388.00  395.60  411.60

G - 19 Hrly    9.18    9.46    9.63    9.83   10.04   10.24   10.64
37.5         344.25  354.75  361.13  368.63  376.50  384.00  399.00
40.0         367.20  378.40  385.20  393.20  401.60  409.60  425.60

G - 20 Hrly    9.50    9.79    9.98   10.16   10.40   10.60   11.02
37.5         356.25  367.13  374.25  381.00  390.00  397.50  413.25
40.0         380.00  391.60  399.20  406.40  416.00  424.00  440.80

*Effective on the employee's seventh (7th) anniversary.
**Effective on the employee's fifteenth (15th) anniversary.

     Advancement from one step to the next higher step to step V of the
Class Grade shall occur in the first pay per iods of January and July
of each year.  

			       -5-

			 89 - 91 AGREEMENT

WAGE PLAN                                           APPENDIX B


	      GENERAL GOVERNMEMT CLASSIFICATION PLAN
		      EFFECTIVE JULY 1, 1989


    Class
    Grade ____________________________________________________  
	  I       II      III    IV      V       VI*     VII*

G-5     5.950   6.130   6.250   6.370   6.520   6.640   6.900

G-6     6.160   6.350   6.470   6.590   6.750   6.870   7.140

G-7     6.370   6.570   6.690   6.820   6.970   7.110   7.400

G-8     6.590   6.800   6.920   7.070   7.220   7.360   7.650

G-9     6.830   7.040   7.170   7.320   7.480   7.620   7.930

G-10    7.070   7.280   7.420   7.560   7.740   7.900   8.200

G-11    7.320   7.540   7.690   7.830   8.000   8.150   8.490

G-12    7.560   7.800   7.950   8.110   8.290   8.450   8.790

G-13    7.830   8.070   8.230   8.390   8.580   8.750   9.090

G-14    8.110   8.360   8.530   8.680   8.870   9.050   9.410

G-15    8.390   8.650   8.820   8.990   9.190   9.370   9.730

G-16    8.680   8.960   9.120   9.310   9.500   9.690  10.080

G-17    8.990   9.260   9.450   9.640   9.840  10.040  10.430

G-18    9.310   9.610   9.760   9.970  10.180  10.380  10.800

G-19    9.640   9.930  10.110  10.320  10.540  10.750  11.170

G-20    9.970  10.280  10.480  10.670  10.920  11.130  11.570

*Effective on the employee's sixth (6th) anniversary.
**Effective on the employee's twelfth (12th) anniversary.

     Advancement from one step to the next higher step to step V
of the Class Grade shall occur in the first pay periods of January
and July of each year.


WAGE PLAN                                        APPENDIX B

	     GENERAL GOVERNMENT CLASSIFICATION PLAN
		     EFFECTIVE JULY 1. 1990
Class                              
Grade___________________________________________________________
	  I      II      III     IV      V       VI*     VII*

G-5     6.240   6.440   6.560   6.690   6.850   6.970   7.240
	
G-6     6.470   6.670   6.790   6.920   7.090   7.210   7.500

G-7     6.690   6.900   7.020   7.160   7.320   7.470   7.770

G-8     6.920   7.140   7.270   7.420   7.580   7.730   8.030

G-9     7.170   7.390   7.530   7.690   7.850   8.000   8.330

G-10    7.420   7.640   7.790   7.940   8.130   8.300   8.610

G-11    7.690   7.920   9.070   8.220   8.400   8.560   8.910

G-12    7.940   8.190   8.350   8.520   8.700   8.870   9.230

G-13    8.820   8.470   8.640   8.810   9.010   9.190   9.540

G-14    8.520   8.780   8.960   9.110   9.310   9.500   9.880

G-15    8.810   9.080   9.260   9.440   9.650   9.840  10.220

G-16    9.110   9.410   9.580   9.780   9.980  10.170  10.580

G-17    9.440   9.720   9.920  10.120  10.330  10.540  10.950

G-18    9.780  10.090  10.250  10.470  10.690  10.900  11.340

G-19   10.120  10.430  10.620  10.840  11.070  11.290  11.730

G-20   10.470  10.790  11.000  11.200  11.470  11.690  12.150

*Effective on the employee's sixth (6th) anniversary.
**Effective on the employee's twelfth (12th) anniversary.

     Advancement from one step to the next higher step to step V
of the Class Grade shall occur in the first pay periods of January
and July of each year.

				 -6-

		    
     3.   In the 84-86 agreement, Article 19 reads as follows:

			      TERMINATION

	  This agreement shall be effective as of December 20, 1984
     and shall remain in full force and effect through December 24,
     1986. It shall be automatically renewed from year to year there-
     after unless the Public Employer notifies the Union or the Union
     notifies the Public Employer in writing at least one hundred
     twenty (120) days prior to the expiration date that it desires to
     modify this Agreement. In the event that notification is given,
     the rates of pay actually being paid during the last pay period of
     1986 shall continue to be paid during the period of negotiations.
     Likewise, those non-wage benefits shall continue in effect at the
     same level as the last pay period of 1986. However, the retro-
     activity of any increased costs in continuing benefits into the
     successor agreement shall be subject to negotiations.

     4.   In the 86-89 agreement, Article 19 states:

			      TERMINATION

	  This agreement shall be effective as of December 25, 1986
     and shall remain in full force and effect through June 30, 1989.
     It shall be automatically renewed from year to year thereafter
     unless both Employers notify the Union or the Union notifies both
     Employers in writing at least one hundred twenty (120) days prior
     to the expiration date that it/they desire(s) to modify this
     Agreement. In the event that notification is given, the rates of
     pay actually being paid during the last pay period of June, 1989
     shall continue to be paid during the period of negotiations.
     Likewise, those non-wage benefits shall continue in effect at the
     same level as the last pay period of June, 1989. However, the
     retroactivity of any increased costs in continuing benefits into
     the successor agreement shall be subject to negotiations.

     5.   Article 19 of the 89-91 agreement reads as follows:

			      TERMINATION

	  This agreement shall be effective as of the date of its
     execution unless otherwise specifically provided herein, and
     shall remain in full force and effect through June 30, 1991.

				 -7-

			      DISCUSSION

     On October 8, 1991, this Board issued a decision holding that an
employer had violated section 964(1)(E) of the MPELRL, 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 employee salaries. Auburn School Administrators Association v. Auburn
School Committee, No. 91-19 (Me.L.R.B. Oct. 8, 1991), consolidated appeals
dismissed per stipulation, No. CV-91-459 XCV-91-464 (Me. Super. Ct., And.
Cty., Apr. 24, 1992). In finding that the employer in Auburn was required,
in the absence of a new agreement, to pay wage increases according to the
wage plan in the parties' expired agreement, the Board abandoned the
distinction it had created 12 years earlier, in which for the subject of
wages only, pre-contract status quo and post-expiration status quo1 were
defined differently. The employer was ordered, among other things, to
reimburse employees for wages lost as a result of the violation. The
Board ordered interest to be paid prospectively only, since its decision
to overturn Easton, though by no means totally unforeseeable, was not
necessarily predictable.

     The contract between the parties in the case now before us expired on
June 30, 1991, approximately three months before the Auburn decision was
issued. In refusing to pay step increases required by the expired
contract, the City and the School Committee argue 1) the Board should
readopt its old Easton rule; and 2) if the new rule is maintained, it
should not be applied retroactively.

Readoption of old rule

     It is a basic principle of labor law that an employer may not unilat-
erally change the terms and conditions of employment for employees repre-
sented by a collective bargaining agent.2  NLRB v. Katz, 369 U.S. 736

________________________

     1That is, status quo during the period of negotiations for an initial
contract, and status quo during the period after a contract has expired
and before a new one has been negotiated and ratified.

     2There are exceptions to that rule that are not relevant here.
		     
				  -8-

(1962). More specifically, "[i]t 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 M.S.A.D. No. 8, 447 A.2d 806, 809-10 (Me.
1982). This rule requiring maintenance of the status quo is based not on
contract law, but on the principle that unilateral alterations are in
contravention of the statutory duty to bargain in good faith. Id. at 810.

     The City and the School Committee do not challenge these general prin-
ciples. Rather, on policy grounds, they challenge the Board's new defini-
tion of the status quo, with respect to wages, during the period after
expiration of a contract and before a successor is in place. The back-
ground on this issue is laid out at length in Auburn, and will be reiter-
ated briefly here. In essence the question is whether, in a wage context,
the term and condition of employment that is frozen should be the actual
wage that employees are receiving at the time the contract expires, or the
wage formula that is in effect when the contract expires.

     The Board was first faced with a post-expiration wage dispute in the
1979 case of Easton Teachers Association v. Easton School Committee,
No. 79-14, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979), where it 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. In applying 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, two
items were singled out by the Board in Easton and addressed differently
		     
				 -9-

than the others: salary step increases and experience factor increases for
extracurricular activities. Adopting the New York3 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. This rule was
applied in another decision issued very shortly after Easton. 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 on
other grounds, No. CV-79-541 (Me. Super Ct., Ken. Cty., July 8, 1980),
aff'd, 432 A.2d 395 (Me. 1981).
     
     In a second decision issued shortly after Easton, the Board refused to
apply the principle of the "static" status quo to the employer's termina-
tion of a merit increase during negotiations for an initial contract, in
spite of its statement in Easton that there is no difference between
collective bargaining for an initial agreement and bargaining for a suc-
cessor. 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, No. CV-79-406 (Me. Super. Ct., Ken. Cty., Dec. 30, 1981).
The Board called this different treatment of pre-contract wage escalators
the "dynamic" status quo, and has continued to apply it in the pre-contract
wage context. Council 74, AFSCME v. School Administrative District No. 1,
No. 81-12, 3 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).
     
     After the Easton and MSAD No. 43 cases in 1979, the issue of what
should constitute post-expiration status quo for wages did not come before
the Board again until 1991, in the Auburn case. Upon careful review, the
Board decided that the distinction between pre-contract and post-expiration
status quo (that is, the distinction between the "dynamic" and "static"
status quo), applied only to wages, was not a valid one, and overruled

____________________________

     3Board of Co-Op Educ. Services of Rockland County v. N.Y. Public
Employment Relations Board, 41 N.Y.2d 753, 363 N.E.2d 1174 (N.Y. 1977)
(hereinafter "Rockland County").

			       -l0-

Easton to the extent that it made that distinction.
     
     In the matter now before us, the employers urge the Board to readopt
the old Easton rule, on both policy and legal grounds. In making their
policy arguments, the City and the School Committee first point to Rockland
County, the New York Court of Appeals case relied upon by the Board in
Easton, to support their position that in tough economic times, public em-
ployers may simply not be able, in good faith, to continue paying automat-
ic wage increments to their employees. Requiring employers to continue an
old pay formula (that is, to pay increases) during contract negotiations,
the City and the School Committee argue, gives employees an incentive not
to reach agreement on a new contract and thus makes negotiation for lower
wages difficult, if not impossible. The employers also point to the Law
Court opinion in MSAD No. 43, and suggest that the Court approved of the
Board's earlier reliance on Rockland County in the Easton case. If the Law
Court considered Easton unwise or unprincipled, the employers argue, it
could have rejected the rule. They also cite a Pennsylvania case, where
the court cited MSAD No. 43 in finding that requiring the employer to pay
step increases in an expired contract would change the status quo, not
maintain it. Fairview School Dist. v. Unempl. Comp. Bd. of Review, 454
A.2d 517 (Pa. 1982). Each argument will be addressed.
     
     First, the Law Court in MSAD No. 43 found that the Board "properly
could" find that the step increase formula in the expired contract at
issue there need not be extended beyond the last school year covered by
the contract. Id. at 398. That language in no way suggests that the Board
was required to decide Easton as it did. Rather, it reflects the fact that
courts review statutory interpretations of the Board and other administra-
tive agencies within the limits of the Administrative Procedure Act (5
M.R.S.A.  11007(4)(C) (1989)); they do not impose their own interpreta-
tions.

     Certainly, an agency may change its mind if it has good reason to do
so. This principle has been enunciated clearly in the federal context:

	  It is also clear that the [NLRB's] previous decisions do not
     bind it in later proceedings with anything like the the force of
     the doctrine of stare decisis in the courts. The Board is free to
     change its mind on matters of law that are within its competence

				  -11-

     to determine, provided it gives a reasoned analysis in support of
     the change. . . . Even if the Board adopts a rule in a decision
     that is subsequently enforced by a court of appeals, it may later
     change the rule. Enforcement reflects only a determination by the
     court of appeals that the rule is rational and consistent with the
     Act, not that it is the uniquely correct rule.

Local 1384, United Automobile, Aerospace and Agricultural Implement Workers
of America v. NLRB, 756 F.2d 482, 492 (7th Cir. 1985). Our reasons for
overturning Easton are set out in the Auburn decision.
     
     A look at case law in other jurisdictions also supports our decision
to reverse Easton. In a dispute over a salary schedule in an expired
contract, the Supreme Court of Indiana found that the employer's refusal to
pay experience and education-based salary increases constituted a failure
to bargain. Indiana Educ. Employment Relations Board v. Mill Creek Class-
room Teachers Assoc., 456 N.E.2d 709 (Ind. 1983). In that court's judg-
ment, terms and conditions of employment, which must by statute be main-
tained during negotiations, may refer to a salary formula in a contract,
and not simply to the wage that the employees happen to be getting at the
time the contract expires.
     
     California too has adopted this view. In a case cited by the Indiana
court in Mill Creek, the California Public Employment Relations Board found
that maintaining the status quo after a contract expires requires continu-
ing to pay teachers "in a like manner, not a like amount." NPER Vol. 2, #8
(Aug. 1980), citing Davis Unified School Dist., 4 PERC 11031 (Cal.P.E.R.B.
Feb. 1980). The Illinois Board also defines post-expiration status quo not
as freezing of actual salaries, but as freezing the salary structure.
Vienna School Dist. 55 v. Ill. Educ. Labor Relations Board, 162 Ill. App.3d
503, 515 N.E.2d 476 (4th DCA 1987). See also, Bd. of Educ. of Springfield
Public Schools v. Springfield Educ. Assoc., 47 Ill. App.3d 193, 361
N.E.2d 697 (4th DCA 1977). Michigan has followed this reasoning as well,
in requiring employers to continue cost-of-living increases after contract
expiration. Wayne County Government Bar Association v. County of Wayne,
169 Mich. App. 480, 426 N.W.2d 750 (Ct. App. Mich. 1988); Local 1467,
IAFF v. City of Portage, 134 Mich. App. 466, 352 N.W.2d 284 (Ct. App.
Mich. 1984).
		    
				-12-
     
     Florida is of particular interest because like Maine, it has changed
its rule. In Pinellas County PBA v. City of_St. Petersburg, 3 FPER 205
(1977), the Florida Public Employees Relations Commission established a
rule that distinguished between "cyclical" and "continuing" benefits;
employers were required to maintain "continuing" benefits (insurance, dues
deduction, grievance procedure) after contract expiration, but need not
maintain "cyclical" benefits (annual physicals, annual step increases).
Subsequently the Commission backed away from that distinction, and now
requires employers to continue to pay annual step increases in salary.
IAFF Local 2416 v. City of Cocoa, CA-88-014, 11 NPER FL-19311 (Oct. 17,
1988); for detailed history of change, see Hearing Officer's Recommended
Order, CA-88-014 (July 8, 1988).

     Finally, the policy arguments in Rockland County upon which the City
and the School Committee rely are diluted substantially by the fact that
New York too has changed its rule. In 1972, the New York Public Employment
Relations Board established what came to be known as the Triborough
doctrine, which among other things required an employer to continue giving
annual salary increments arising from an expired contract. Triborough
Bridge & Tunnel Authority, 5 PERB 3064 (1972). On appeal, the Court of
Appeals of New York vacated PERB's decision, holding that to "say that the
status quo must be maintained during negotiations is one thing; to say that
the status quo includes a change and means automatic increases in salary is
another."  Rockland County, 363 N.E.2d at 1177.  In 1982, the New York
Legislature amended its laws to state that "to refuse to continue all the
terms of an expired agreement until a new agreement is negotiated" consti-
tutes an unfair labor practice. In a subsequent case, the court
interpreted that amendment as an intentional legislative alteration of the
rule laid down in Rockland County. Cobleskill Central School Dist. v.
Newman, 105 A.D.2d 564, 481 N.Y.S.2d 795 (A.D. 1984).
     
     What all of these cases establish is that there are two schools of
thought on the issue of what constitutes post-expiration status quo in con-
nection with wages, and the view supported by the City and the School
Committee is the minority view. In the Auburn case, we reviewed our 1979
decision in Easton, along with our status quo decisions in other contexts,
and concluded that the inconsistency in Easton should no longer stand. We
					
				-13-

see no reason to return to the outdated, inconsistent rule.
     
     Two other points are worth mentioning. First, we reject the employers'
suggestion that the definition of the status quo, as a matter of public
policy, should hinge on the state of the economy. The definition should
promote the purposes of the MPELRL; it should not fluctuate depending on
the budget woes of public employers. Second, the argument that refusing to
reverse our Auburn decision will give employees an incentive for not
reaching an agreement on a new contract applies just as well to the City
and the School Committee. By their own logic, returning to the old Easton
rule would give them an incentive not to reach agreement.4  We also note
that in fact the employers have not even made an attempt, since October of
1991 when the Auburn decision was issued, to reach an agreement on a new
contract. Had the parties been negotiating during these past nine months,
they may have reached a new agreement that no longer included increases.
Alternatively, if they had reached impasse after a good-faith attempt to
reach agreement through the dispute resolution procedures of the MPELRL,
the employers would have had the option of implementing their last, best
offer. Either way, they could have substantially mitigated the effects of
Auburn.
     
     The legal arguments made by the City and the School Committee are no
more persuasive than their policy arguments. They first suggest that the
new rule laid down in Auburn contravenes the legislative intent of the
MPELRL, because it requires the employers to pay salaries they never agreed
upon. Though no citation is given for this proposition, the employers are
apparently referring to section 965(1)(C) of the MPELRL, which defines
collective bargaining, in part, as the mutual obligation to "confer and
negotiate in good faith with respect to wages, hours, working conditions

________________________

     40ne of the benefits of the new rule (that is, of treating wages in the
same way as we treat all other mandatory subjects) will be to encourage
negotiations for a successor agreement to begin and end in a timely manner
-- before expiration of the old contract. Without the right to strike,
employees in the public sector have no way to avoid working without a
contract, except to give in to the employer's demands. The recent increase
in the number of units without contracts does not bode well for labor peace
and stability.

				-14-

and contract grievance arbitration, except that by such obligation neither
party shall be compelled to agree to a proposal or be required to make a
concession...." The City and the School Committee also point out that sec-
tion 965(4) of the MPELRL makes the recommendations and findings of an
interest arbitrator, in disputes over salaries, pensions and/or insurance,
advisory only. Consequently, they say, the old Easton rule can only be
overturned legislatively.

     We note first that collective bargaining laws in Indiana, Illinois,
Florida, California, Michigan and New York all contain language virtually
identical to that in section 965(1)(C) of the MPELRL. (That the duty to
bargain does not require a party to agree to a particular proposal or to
make a particular concession is black letter labor law.) Yet each of these
states has adopted the definition of wage-related post-expiration status
quo that we adopted in Auburn.

     More importantly, if sections 965(1)(C) and 965(4) mean what the City
and the School Committee contend they mean, the ramifications are far
greater than a simple prohibition against the definition of the status quo
with respect to wages that we have adopted. In effect, the employers'
argument means not only that they do not have to pay increased wages under
the step increase plan in the expired contract -- they do not even have to
freeze wages at the levels that existed when the contract expired, since
forcing them to do so would force them to pay something they haven't agreed
to pay. Furthermore, by the employers' logic, the Board cannot impose the
status quo, dynamic or static, on employers prior to negotiations for an
initial contract:  Again, to do so would be to force them to pay something
they hadn't negotiated to pay. By this reasoning, an employer may uni-
laterally change any term or condition of employment it chooses to change,
at any time, unless there is a signed contract in place. This result flies
in the face of the overriding purpose of collective bargaining statutes --
to promote harmony in the workplace by providing a stable, orderly mecha-
nism for establishing and/or changing terms and conditions of employment.
As has been stated so succinctly in the federal labor arena, requiring an
employer to maintain the status quo after contract expiration "does not
compel [him] to agree to any new or different contract provision; it simply

				-15-

requires him to abide by an obligation once extant by reason of the binding
contract but then continuing on after its expiration, in limited form,
not by reason of the contract itself but because of the dictates of the
policy embodied in the National Labor Relations Act." Hinson v. NLRB, 428
F.2d 133, 138 (8th Cir. 1970) (emphasis in original).
     
     In connection with the employers' assertion that our old Easton rule
should only be changed by an act of the Legislature, their reliance on the
legislative change that overturned the Rockland County case in New York
appears to us to be misplaced. It is possible, if not likely, that the New
York Legislature took action because in Rockland County the court had
misinterpreted the New York law when it overturned the labor board. The
legislative amendment would then have constituted an affirmation of the
status quo policy originally enunciated by New York's board through the
Triborough doctrine, and not a change in it.
     
     The employers' second legal argument is that regardless of the defini-
tion of the status quo used by the Board, past practice between the parties
has established that wages are to be frozen during the period between
expiration of one contract and the beginning of the next. In normal cir-
cumstances we would reject this argument, since in normal circumstances the
practice has existed by operation of board policy and not by agreement of
the parties. In the case before us, however, that is not so. As the
employers have acknowledged, the first two contracts between the parties
contained a provision specifying that upon expiration, wages then being
paid would be frozen during negotiations for a new contract. However,
in the last contract, this provision was removed. Consequently, the
parties by agreement abolished any "past practice" that existed.

Retroactivity

     We are told by the City and the School Committee that even if we decide
to preserve the new Auburn rule, it should not be applied to them until
they have had the opportunity to bargain for a waiver of the new rule --
that is, until expiration of the successor contract that the parties have
not yet bargained. The basis for their position is that applying the new
rule retroactively (to parties whose actions at the time they were taken

				 -16-

were lawful under then-existing case law) would be "manifestly unjust."
That is the standard commonly applied by the courts in reviewing retroac-
tive application of policy changes by the NLRB. Ryan Heating Co. v.
NLRB, 942 F.2d 1287 (8th Cir. 1991). In adopting this standard, some
federal circuit courts have relied on U.S. Supreme Court precedent
reviewing rule changes of administrative agencies: most often, SEC v.
Chenery Corp., 332 U.S. 194, 203 (1947) ("retroactivity must be balanced
against the mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles"). Other courts have relied on
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7 (1971), in which the U.S.
Supreme Court addressed the retroactive application of a change in its own
rules of law.5

     Factors that have been derived from these precedents and applied to
NLRB decisions include:

     (1) whether the losing party relied on established Board policy
     when choosing the course of conduct that led to the unfair labor
     practices charge; (2) whether the Board abruptly changed the
     policy without clearly foreshadowing its intent to to do so; and
     (3) the severity of the penalty imposed on the losing party.

Ryan Heating, 942 F.2d at 1289. Another factor that has been considered is
the statutory interest in applying the new rule in spite of reliance on the
old rule. Local 900, International Union of Electrical, Radio and Machine
Workers v. NLRB, 727 F.2d 1184, 1194 (D.C. Cir. 1984).

     We do not believe that it would be manifestly unjust to apply the
new rule to the City and the School Committee. First, the employers'
reliance on the old rule is questionable. The employers state that had
they known that the Easton rule would not apply when the 89-91 agreement
expired, they could have insisted on a contractual provision that required
wages to remain static during the contract hiatus. What they do not
explain is why, if they were relying on the Easton rule, the parties' first
two contracts (the 84-86 agreement and the 86-89 agreement) contained just

___________________________

     5The test in Chevron is: Does the decision establish a new principle of
law? Would retractive application further or retard its operation? How
inequitable would retroactive application be?

				 -17-

such a provision. The third one does not. Did they only start relying on
Easton in 1989 when they took the provision out of the 89-91 agreement?
Why the change in reliance?
     
     Nor is our decision to overturn Easton so clearly an abrupt, unfore-
shadowed change. Both Easton and MSAD No. 43 were issued in 1979. There-
after, the Board was not faced with the issue of post-expiration wages
again until the Auburn case, in 1991.6  During that 12-year period, the
Board took a totally different approach in addressing insurance provisions
in contracts than it had taken with wage provisions, although insurance
provisions in particular may present the same dilemma as wage provisions
may present -- they may require an employer to pay more dollars after
contract expiration than it was paying under the contract. Yet the dynamic
status quo has always been the rule with insurance provisions that contain
a formula for calculating the benefit rather than a fixed dollar figure.
     
     Moreover, in another context the Board recently affirmed the general
principle that the status quo requires freezing procedures or formulas.
MSEA v. School Committee of the City of Lewiston, No. 90-12 (Me.L.R.B. Aug.
21, 1990). In that case the Board found that the employee reclassification
procedure had to be frozen, not the specific employee classifications that
were in place for each employee when the contract expired. The reclassifi-
cation of employees has clear salary ramifications. Thus, although the
Board's decision to reverse Easton was not necessarily predictable or cer-
tain, neither was it by any means unforeseeable, particularly in light of
the fact that the rule in Easton is the minority rule.


_________________________
     
     6This is true, notwithstanding the fact that the employers cite Auburn
School Support Personnel v. Auburn School Committee, No. 91-12 (Me.L.R.B.
July 11, 1991), for the proposition that the Board has "consistently, and
on repeated occasions, enforced its judgment and policy that maintenance
of the status quo requires just that -- no modification (up or down) of
wages in effect at the expiration of a labor contract." As the employers
here are well aware, that Auburn case had nothing to do with wages. The
issue before the Board was whether the employer was required to pay for an
insurance premium increase that occurred upon contract expiration. We
found that it was not, since the expired contract contained a fixed
("static") dollar amount to oe paid by the employer, and not a ("dynamic")
formula by which the amount to be paid would be determined.

				 -18-

     The nonseverity of the penalty here also favors retroactive application
of the new rule to these parties. First we note that when we applied the
new rule to the parties in Auburn, we ordered that interest on wages owed
would be paid prospectively only. We will do the same in the case now
before us. Second, a major purpose of our rule change is to make the defi-
nition of the status quo consistent and therefore predictable7 -- as between
wages and other mandatory subjects, as between pre-contract status quo and
post-expiration status quo. On each previous occasion when the parties'
contract expired, step increases were granted retroactively once a suc-
cessor contract was signed. Consequently, imposing the new rule on these
parties until they negotiate to waive the new rule is more in line with
previous practice (and continued expectations), especially since the par-
ties removed from their last contract the provision that reiterated the old
Easton rule. No doubt the employers' response would be that such reason-
ing should only apply once the parties have negotiated another successor
agreement that contains the step increase formula contained in the last
three contracts -- which brings us to our third point. It is difficult for
us to look upon our application of the new rule here as a substantial
burden or penalty. Not only have the employers not negotiated to abolish
the step increase formula in their expired contract -- negotiations for a
successor aren't even occurring. As we pointed out earlier in another con-
text, with some effort the employers could have substantially mitigated the
effects of the new rule. They have not even attempted to do so.

     Finally, we have a strong statutory interest in applying the new rule
retroactively. By its very nature, this particular rule is one that if
not applied retroactively, will not be applicable to most public sector
employers/employees for a substantial period of time -- only parties who
have negotiated a contract since the new rule was announced would be
affected by it, and some contracts negotiated before that date will last as

________________________

     7While it is generally true that bargaining agents are familiar with the
old rule, many employees are not. Consequently, a decision by an employer
to alter its previous practice of agreeing to pay step increases even
though the contract has expired can cause substantial harm to the labor/
management relationship.

				-19-

long as three years.8  That alone defeats the purpose of changing the rule.
     
     In connection with making our retroactivity determination, we must also
question whether there is any basis for treating the City and the School
Committee differently than we treated the employer in Auburn. There, we
reversed the Easton rule and applied the new rule retroactively -- that is,
to the litigants in that case. The case presently before us is the only
one that has been filed since the Easton rule was overturned nearly a year
ago. As far as we are aware, all other employers who were caught having to
pay wage increases based on the practices established in their expired
contracts have done so. We do not even want to contemplate the confusion
that would be created by a decision to treat similarly situated employers
differently than we treated the employer in Auburn (and the likely attempt
of employers who have abided by the new rule to reverse course).
     
     In addition, the essence of determining whether a change in policy
should be applied retroactively (to the parties in the litigation where the
change occurred) is an assessment of "the relative weight of the burden
that retroactivity would entail, on the one hand, and the Board's [NLRB's]
interest in a uniform application of its new rule on the other hand." Fox
Painting Company v. N.L.R.B., 919 F.2d 53, 56 (6th Cir. 1990). For us to
have decided to apply the new rule to the original litigants, but to refuse
to apply it to future parties who are similarly situated, would turn the
retroactivity analysis on its head.
     
     Finally, it is doubtful that we have the authority to treat similarly
situated parties differently in any case. The U.S. Supreme Court has
recently addressed this issue, albeit in a different context. In James
B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439 (1991), the question pre-
sented was whether the Court's ruling in another case, where it had
declared previously constitutional conduct to be unconstitutional, should
apply retroactively to later cases arising out of facts antedating that
decision. Stated another way, when the Court expressly overrules precedent
and applies a new rule of law to the litigants in the case, is it error to

_________________________
     
     8AIl four public sector collective bargaining statutes permit nego-
tiation of a contract for a period of up to three years.

			       -20-

refuse to apply the new rule to similarly situated parties? After a
lengthy discussion of the three ways this choice-of-law problem could be
resolved,9 it answered that question in the affirmative -- selective, or
modified prospectivity is legal error. (The only exceptions made are for
claims barred by procedural requirements such as res judicata or an appli-
cable statute of limitations.) Thus, any inquiry regarding reliance on the
old rule and the degree of harm that retroactivity would impose becomes
irrelevant. Id. at 2447. This is so even though the Court applied its
new rule retroactively in its original decision without making the proper
retroactivity analysis. The Court did state that its decision did not
preclude taking the circumstances of individual litigants into considera-
tion when designing a remedy for violation of the new rule. Id. at 2448.
     
     Beam has been applied repeatedly to judicial decisions addressing non-
constitutional issues. Whether or not Beam applies to administrative adju-
dications has been considered by one court. In District Lodge 64 v. NLRB,
949 F.2d 441 (D.C. Cir. 1991), the court was not required to reach the
issue, since it found that retroactive application of a prior NLRB decision
(Ducane Heating Corp., 274 NLRB 1389 (1985), enforced without opinion, 785
F.2d 304 (4th Cir. 1986)), would not be manifestly unjust in any case.
Nevertheless, the court provided a persuasive argument for why Beam might
indeed apply to federal agency adjudications. District Lodge 64, 949 F.2d
at 446-7. If that is so, then the citations by the parties in the matter
before us, related to case-by-case retroactivity analyses in connection
with the NLRB's new rules on pre-hire agreements, are no longer applicable.10
	       
_________________________               

     9Full retroactivity, prospectivity or selective prospectivity.

    10In the past, federal courts have made case-by-case determinations of
the appropriateness of retroactive application of a new NLRB rule, even if
the agency specified that it was to be applied retroactively. The best
example of this is the series of cases that resulted from the NLRB's deci-
sion to change its rules regarding pre-hire agreements. Although in
changing its rules the NLRB stated that the new rules would be applied
retroactively "to all pending cases in whatever stage," (Deklewa and
International Association of Bridge, Structural and Ornamental Iron
Workers, Local 3, 282 NLRB 1375, 1389 (1987), and although the NLRB's deci-
sion was affirmed (843 F.2d 770 (3d Cir. 1988), cert. denied, 488 U.S. 889
(1988)), federal courts have made independent retroactivity determinations
in connection with subsequent application of the new rule announced in
Deklewa.

				 -21-

     Although we do not believe Maine law on retroactivity is applicable
here,11 following it would not give a different result. We note first that
the Law Court has apparently not addressed the issue of the retroactivity
of administrative adjudications. We note also that new rules announced in
civil judicial decisions are always applied to the parties in the case
where the new rule is announced, regardless of any equitable considera-
tions. Myrick v. James, 444 A.2d 987, 1001 (Me. 1982). The reasons given
are three-fold: to reward the diligence of the litigant who sought the
change; to prevent the newly announced rule from being dictum; and to avoid
arbitrariness. Id. We assume that the same logic would apply, were the
Law Court to have reviewed our decision to apply our new Auburn rule to the
parties in the Auburn litigation.

     The Law Court's determinations regarding how to apply new rules to
future litigants are based on "the existence of substantial public reliance
on the former rule and of the litigants' ability to foresee [the court's]
overruling decision." Clark v. Rust Engineerinq Co., 595 A.2d 416, 418
(Me. 1991). Generally, the judicial rule change has been in the area
of tort law, and the new rule has been applied to all injuries that
occurred on or after the date of the injury in the case where the new
rule was announced. Black v. Solmitz, 409 A.2d 634 (Me. 1979); Poulin v.
Colby College, 402 A.2d 846 (Me. 1979); Jones v. Billings, 289 A.2d 39
(Me. 1972). Thus, not only has the new rule been applied to the defendant
in the rule-changing case; acts that occurred at any time from the date of
the injury in the rule-changing case to the date the rule was changed, are
declared to be illegal even though they were legal at the time they
occurred. The critical fact is that similarly situated litigants are
treated similarly. Were we to use this approach in the case before us, the
new Auburn rule would be applicable; the refusal to pay wage increases here

______________________
     
     11The NLRB's usual practice is to apply new policies and standards
retroactively. Deklewa, 282 NLRB at 1389. Where that practice is uti-
lized, it is for the purpose of furthering policies based on statutory
design. Id.; 843 F.2d at 780. We administer statutes that are similar in
design (we commonly look to NLRB precedent for this reason), and our
interests in furthering that design are similar. In particular, as we have
said, we have a strong statutory interest in applying our new Auburn rule
retroactively. Thus, federal precedent, while not binding, is most
appropriate here.

				-22-

occurred several months after the refusal to pay in Auburn.
     
     The Law Court has not always used the approach it used in Black,
Poulin and Jones. The results in MacDonald v. MacDonald, 412 A.2d 71
(Me. 1980), were even more harsh. There the court abolished the doctrine
of interspousal immunity, and stated that the new rule would be applied
retroactively to any case not yet final. The court found that there were
no "special" reliance interests at stake.
     
     Myrick, cited earlier, involved a change in when the statute of limita-
tions would begin to run in foreign-object surgical malpractice cases. The
general rule for malpractice cases was that it would begin to run at the
time the alleged malpractice occurred. Because a patient might not even
discover that a foreign object had been left in his/her body until well
after the statute of limitations had run, a new rule was established in
Myrick for foreign-object surgical malpractice cases only -- the limita-
tions period begins to run when the patient discovers or reasonably should
discover the presence of the object in his/ her body. The court stated
that this new rule would be applied to all acts of alleged malpractice
occurring on or after the date of the court's decision announcing the new
rule, rather than to those occurring on or after the date of the injury in
Myrick. Presumably it did so because the new rule by its very nature made
the date of the injury (the date the object was left in the patient's body)
in Myrick meaningless. We can discern no difference between the reliance
interests in this case and previous rule-changing tort cases.

     Finally, in Davies v. City of Bath, 364 A.2d 1269 (Me. 1976), the court
abolished the common-law doctrine of sovereign immunity. It applied the
new rule to the litigants in the case, as usual. It made the change appli-
cable to all other causes of action arising on or after 60 days following
certification of the decision, in order "to allow time for legislation to
be enacted on the basis of which public officials could accommodate their
operations to the new regime." Black, 409 A.2d at 640 (explaining result
in Davies).

     Certainly the financial burden imposed by our new rule in Auburn is
nothing close to the burden contemplated by the rule change in Davies,

				-23-

either in potential dollar liability or in the number of municipalities
affected. As a general matter, as we noted in the Auburn decision itself,
employers will have the opportunity to avoid the effects of the new rule by
negotiating for waivers of the rule in future contracts. Only those
employers whose contracts expired before our decision in Auburn, or fairly
shortly thereafter, would not have had the opportunity to mitigate Auburn's
effects by promptly negotiating a new contract (or negotiating to impasse)
-- the status quo requirement only applies during contract hiatus. Even
for those employers, the burden could not have been too great, since the
case now before us is the only one that falls into that category and that
has been filed since Auburn was issued.

     In sum, we find no legal or equitable reason to treat the parties here
differently than we treated the parties in Auburn. The parties in the two
cases are similarly situated, and the arguments regarding manifest injus-
tice here are even less compelling than they were in Auburn. (The employer
in Auburn made essentially the same arguments on appeal to Superior Court
that the employers make here. That appeal was later withdrawn.) The City
and the School Committee have violated section 964(1)(A) and (E) of the
MPELRL by failing, pending negotiations for a successor agreement, to main-
tain the status quo with respect to members of the general government
bargaining unit, as reflected in the wage plan in Appendix B of the 89-91
agreement. We will order the City and the School Committee to cease and
desist from refusing to pay step increases that became due on or after July
1, 1991, pursuant to Appendix B. We will also order the employers to reim-
burse each unit member for wages lost during the period from July 1, 1991,
to the date of this Order. Payment shall be made within 30 days of the
date of this Order. Interest shall begin to accrue on the 31st day, 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,
No. CV-80-574 (Me. Super. Ct., Pen. Cty., Jan. 28, 1982), Board Order aff'd,
449 A.2d 1129 (Me. 1982). Finally, the City and the School Committee will
be ordered to continue to pay step increases in accordance with Appendix B
until such time as a successor agreement is negotiated and signed that pro-
vides otherwise.

				 -24-

				 ORDER
     
     On the basis of the foregoing stipulations, 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 and Supp. 1991), it is hereby ORDERED:
	       
     That the City and the School Committee shall:
	  
	  1.  Cease and desist from refusing to bargain with members
	      of the Lewiston general government bargaining unit by
	      unilaterally changing the wages paid to unit members
	      pending negotiations for a successor agreement;

	  2.  Take the following affirmative actions that are necessary
	      to effectuate the policies of the MPELRL:

	      a.   Reimburse members of the bargaining unit for wages
		   lost during the period from July 1, 1991, to the
		   date of this Order. Wages shall be calculated in
		   accordance with the step increase plan in Appendix
		   B of the 89-91 agreement. Payment shall be made
		   within 30 days of the date of this Order. Interest
		   shall begin to accrue on the 31st day.

	      b.   Continue to calculate and pay wages to unit members
		   in accordance with Appendix B of the 89-91 agreement
		   until such time as a successor agreement is nego-
		   tiated and signed that provides otherwise.


Dated at Augusta, Maine, this 11th day of September, 1992.


				       MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right, pursuant to 26
M.R.S.A.  968(5)(F) (Supp. 1991),     /s/___________________________
to seek review of this Decision        Peter T. Dawson
and Order by the Superior Court.       Chair
To initiate such a review an
appealing party must file a
complaint with the Superior Court      /s/___________________________
within fifteen (15) days of the        Howard Reiche, Jr.
date of this decision, and             Employer Representative
otherwise comply with the re-
quirements of Rule 80C of the
Maine Rules of Civil Procedure.        /s/___________________________
				       George W. Lambertson
				       Employee Representative


				 -25-