Associated COLT Staff of the University of Maine System v. Board of Trustees of the University of Maine System, MLRB No. 93-21, rev'd, No. CV-93-362 (Me. Super. Ct., Ken. Cty., Apr. 13, 1994), judgment affirmed, Board of Trustees v. Associated COLT Staff and MLRB, 659 A.2d 842 (Me. 1995) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 93-21 Issued: July 9, 1993 _______________________________________ ) ASSOCIATED COLT STAFF OF THE ) UNIVERSITY OF MAINE SYSTEM, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) BOARD OF TRUSTEES OF THE UNIVERSITY ) OF MAINE SYSTEM, ) ) Respondent. ) _______________________________________) On December 30, 1992, Associated COLT Staff of the University of Maine System ("ACSUM") filed a prohibited practice complaint with the Maine Labor Relations Board ("Board") alleging that the Board of Trustees of the University of Maine System ("University") violated section 1027(1)(A) and (E) of the University of Maine System Labor Relations Act ("University Act"), 26 M.R.S.A. 1027(1)(A) and (E) (1988), when it unilaterally discontinued payment of salary step increases after expiration of the parties' 1989-92 collective bargaining agreement ("89-92 agreement"). ASCUM has also alleged that the University violated section 1027(1)(E) by insisting to impasse on a non-mandatory subject, when it demanded that salary step increases would not be continued after contract expiration. In its answer to the complaint, the University alleged that the 89-92 agreement "expressly provided that individual employee wages would not be increased after June 30, 1992," and denied the remaining material allegations in the complaint. It also moved for dismissal of the complaint on the grounds of failure to join the proper party and failure to exhaust available administrative remedies (ACSUM having filed a grievance covering the same subject). -1- On February 23, 1993, Board Chair Peter T. Dawson convened the prehearing conference in this matter. His Prehearing Memo- randum and Order, dated March 3, 1993, is incorporated in and made a part of this decision and order. The University's motion for dismissal of the complaint on the ground of a pending griev- ance was treated as a motion to defer, and the parties presented evidence and oral argument on the motion at the prehearing conference. The issue of whether, in the 89-92 agreement, agreement had been reached on post-expiration wages is deferrable; the issue of whether failure to pay step increases violated the Board's status quo requirement is not. That being the case, ACSUM was ordered to make a choice of forum for resolution of issue 1. It chose to withdraw its request for arbitration under the parties' grievance procedure and have the entire matter resolved by the Board. The evidentiary hearing in this matter was held on March 29, 1993. Chair Dawson presided over the hearing, accompanied by Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson. Mr. F. Stewart Kinley of the Maine Teachers Association represented ACSUM, and F. Paul Frinsko, Esquire, represented the University. The parties were given full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make oral argument. Briefs were filed by both parties, the last of which was received on May 10, 1993. The Board deliberated this matter on June 2, 1993. JURISDICTION ACSUM, an affiliate of the Maine Teachers Association and the National Education Association, is the bargaining agent, within the meaning of 26 M.R.S.A. 1022(1-B) (Supp. 1992), for the bargaining unit of clerical, office, laboratory and technical ("COLT") employees employed by the University. The University is the public employer, within the meaning of 26 M.R.S.A. 1022(10) (Supp. 1992), of the employees in the COLT unit. The jurisdic- -2- tion of the Board to hear this case and to render a decision and order lies in 26 M.R.S.A. 1029 (1988 and Supp. 1992). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. The first collective bargaining agreement between the parties was executed on March 1, 1982, and was effective through June 30, 1983 ("81-83 agreement"). Prior to that time, employees had been paid in accordance with a wage schedule containing a series of steps. The wage provisions in the 81-83 agreement contained two new, higher wage schedules that included steps; the first schedule was retroactive to July 1, 1981, and the second was for the year beginning July 1, 1982. For both years of the agreement, employees received across-the-board salary increases as a result of the new wage schedules, but remained at the same step they had been at previously. Separate provisions applied to step-related promotions and demotions. 2. The parties' second contract was executed May 11, 1984, effective through June 30, 1985 ("83-85 agreement"). It contained a new wage schedule for each of the two years; the first schedule was retroactive to July 1, 1983, and the second was effective on July 1, 1984. In addition to the across-the- board increases contained in the new wage schedules, employees received a step increase in each year of the contract. The first step increase was granted retroactive to July 1, 1983, for employees who were employed as of that date. Newer employees received that step increase on their anniversary date. All employees received the second-year step increase on their anni- versary date. The agreement contained additional step-related provisions for promotions and demotions. 3. The parties' third contract was executed on June 3, 1985, and was in effect from July 1, 1985, through June 30, 1987 -3- ("85-87 agreement"). Once again, it contained new wage schedules for each year of the agreement. In addition to the across-the- board increases contained in the new wages schedules, during the first year employees received a step increase on their anniver- sary date. Employees who had been at the maximum step in their wage band for three years or more received a lump-sum, non- base payment of $250. Employees did not receive a step increase during the second year. The agreement contained additional provisions for step-related promotions and demotions. This is the only contract between the parties that has been executed before the prior agreement expired. It specified that the agreement would be null and void if supplemental funds in the amount of $6.4 million per year were not appropriated by the Legislature then in session. The supplemental funds were approp- riated, and the parties' agreement was carried out. 4. The parties' fourth agreement was executed in December of 1987, effective through June 30, 1989 ("87-79 agreement"). It contained two new wage schedules; the first schedule was retro- active to July 1, 1987, and the second went into effect on July 1, 1988. Step increases were not granted in either year of the agreement. It contained additional provisions for step-related promotions and demotions. 5. The most recent agreement between the parties was executed sometime in February or March of 1990, effective through June 30, 1992 ("89-92 agreement"). It contained three new wage schedules, the first of which went into effect on February 1, 1990,1 the second on July 1, 1990, and the third on July 1, 1991. _________________________ 1A separate memorandum of understanding was signed by the parties on December 20, 1989, which granted unit members a one- time, non-base payment equivalent to a 5 1/2 percent wage increase for the period July 1, 1989, through December 31, 1989. Funds that would otherwise have been used for salary increases for the month of January 1990 were utilized instead to protect employees from increased health insurance contributions. -4- Employees also received three step increases under the agreement, one on each contract anniversary date (that is, on February 1, 1990, July 1, 1990, and July 1, 1991). The wage article in this agreement was substantially different from the wage article in previous agreements. For instance, as a result of a reclassifi- cation study, the three new wage schedules, one for each year of the contract, contained fewer wage bands than previous wage schedules contained, and the steps were renamed (A-H). (Salary increases for "red-circled" employees, that is, for the small percentage of employees whose wage rates did not coincide within the newly established wage bands, were addressed separately from across-the-board increases and step increases for other employ- ees.) The wage schedule for the second year omitted step A, and the schedule for the third year omitted steps A and B, the purpose of these omissions being to attract new, qualified employees (new employees are hired at the first step of the appropriate wage band). Also, in each of the three years of the contract, employees with specified amounts of continuous service received lump-sum, non-base salary increases ranging from $150 to $400, in addition to across-the-board and step increases. As with previous agreements, the 89-92 agreement contained separate provisions pertaining to step-related promotions and demotions. (The full text of the wage article in the 89-92 agreement follows.) ARTICLE 11 - WAGES AND OVERTIME A. 1. Effective February 1, 1990 all current unit employees (except "red circled" employees) shall be placed on the FY'90 C.O.L.T. Unit Wage Schedule (Appendix D) in the band assigned to their classification and advanced to the next higher step beyond the step they occupy on the FY'89 C.O.L.T. Unit Wage Schedule on December 31, 1989. 2. All unit members with the following amounts of continuous regular service as of June 30, 1989 shall receive the corresponding one-time non-base increases, effective as of February 1, 1990: Years of Service Non-base Increase 15 through 19 $150 20 through 24 $200 25 through 29 $250 30 through 34 $300 35 through 39 $350 40 + $400 -5- 3. Effective February 1, 1990 all "red circled" unit members below the maximum step shall be advanced to the nearest step in their wage band on the FY'89 C.O.L.T. Unit Wage Schedule and then placed on the same step in the wage band on the FY'90 C.O.L.T. Unit Wage Schedule. 4. Effective February 1, 1990 all "red circled" unit members beyond the maximum step in the wage band for their classification shall have their hourly rate increased by 5.5%. 5. Effective July 1, 1990 all current bargaining unit employees (except "red circled" employees above maximum) shall be placed on the FY'91 C.O.L.T. Unit Wage Schedule (Appendix E) in the band assigned to their classification and advanced to the next higher lettered step beyond the step they occupy on the FY'90 C.O.L.T. Unit Wage Schedule on June 30, 1990. 6. All unit members with the following amounts of continuous regular service as of June 30, 1990 shall receive the corresponding one-time non-base increases, effective as of July 1, 1990: Years of Service Non-base Increase 15 through 19 $150 20 through 24 $200 25 through 29 $250 30 through 34 $300 35 through 39 $350 40 + $400 7. Effective July 1, 1990 all "red circled" employees beyond the maximum step in the wage band for their classification shall have their hourly rate increased by 5.5%. 8. Effective July 1, 1991 all current bargaining unit employees (except "red circled" employees) shall be placed on the FY'92 C.O.L.T. Unit Wage Schedule (Appendix F) in the band assigned to their classification and advanced to the next higher lettered step beyond the step they occupy on the FY'91 C.O.L.T. Unit Wage Schedule on June 30, 1991. 9. All unit members with the following amounts of continuous regular service as of June 30, 1991 shall receive the corresponding one-time non-base increases, effective as of July 1, 1991: Years of Service Non-base Increase 15 through 19 $150 20 through 24 $200 25 through 29 $250 30 through 34 $300 35 through 39 $350 40 + $400 10. Effective July 1, 1991 all "red circled" employees beyond the maximum step in the wage band for their classification shall have their hourly rate increased by 7%. 11. Except in the case of advancements to the next step specified in this article and of promotion or demotion of unit members to other job classifications at higher or lower wage bands, unit members will remain in the band and step at which they are placed effective February 1, 1990 for the period February 1, 1990 to June 30, 1992. -6- B. Effective July 1, 1981 unit members who are promoted to another job in a higher wage band shall be placed at the second step of the new band on the C.O.L.T. Unit Wage Schedule, unless that step provides less than a five (5) percent increase over the unit member's former rate. In that event the unit member shall be placed at the lowest step in the new band which provides for an increase of (5) percent over the unit member's former rate. C. 1. Unit members who are demoted for non-disciplinary reasons to a job in a lower wage ban shall be placed at the step in the new band on the C.O.L.T. Unit Wage Schedule which would have been obtained had the unit member not been employed at the higher classification. 2. Unit members who are demoted for disciplinary reasons to a lower wage band will be placed at the same step number in the C.O.L.T. Unit Wage Schedule as had been held by the employee in in the former job. D. Unit members who are transferred to another classification in the same wage band shall be placed at the same step as had been held by the unit member in the former job. E. The evaluation date for unit members who are promoted, demoted or transferred to a substantially different classification shall be the effective date of the promotion, demotion or transfer. The evaluation date for unit members who are transferred within the same classification or to another classification in the same wage band which is not substantially different shall not be changed. F. 1. The University will pay a shift differential of twenty (20) cents per hours to any unit member who works a normally scheduled shift the majority of which falls between the hours of 5:00 p.m. and 8:00 a.m. Such differential will be applicable to all hours of such shift and is in addition to the unit member's regular rate of pay. 2. Effective July 1, 1991 the shift differential shall be increased to twenty-five (25) cents per hour. 3. Existing policies which provide for other shift differentials for registered nurses shall be maintained. G. Whenever two or more premium rates may appear applicable to the same hour or hours paid there shall be no pyramiding or adding together of such overtime or premium rates and only the higher of the applicable rates shall apply. -7- 6. Negotiations for a successor to the 89-92 agreement began on May 16, 1992; no new agreement has been reached. Upon expiration of the 89-92 agreement, the University discontinued granting annual step increases. It has continued to apply the step-increase provisions for employee promotions, as well as non- wage provisions of the contract. 7. Sources of funding for the University's collective bargaining agreements include state legislative appropriations, student tuition and grants. DISCUSSION Jurisdiction In its response to the complaint, the University moved for dismissal of the complaint on the ground that ACSUM had failed to join the proper party. Although the University failed to pursue its motion at the prehearing conference, during the evidentiary hearing, or in its post-hearing brief, we will address it brief- ly, since the University Act is very specific regarding the Board's authority to prevent or remedy prohibited acts. Under section 1026(1) of the University Act, it is the "university" that is obligated to bargain collectively with the bargaining agent of its employees. It is the "university" that is prohibited from the acts outlined in section 1027(1); corre- spondingly, under section 1029(1) the Board is authorized to prevent or remedy prohibited acts of the "university". Section 1022(10) defines the university as "all campuses or units of the university, represented by the board of trustees or its desig- nees." That section further states: -8- It is the responsibility of the board of trustees or its designee to negotiate collective bargaining agree- ments and to administer such agreements. The board of trustees or its designee is responsible for the em- ployer functions of the university under this chapter and shall coordinate its collective bargaining activi- ties with campuses or units on matters of university concern (emphasis added). Accordingly, we conclude that the University's board of trustees is properly before this Board. Merits On October 8, 1991, the Board issued a decision holding that an employer had violated section 964(1)(E) of the Municipal Public Employees Labor Relations Law ("MPELRL") by failing, pend- ing 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 School Administrators was required, in the absence of a new collective bargaining agreement, to pay wages according to the wage plan in the parties' expired agreement, the Board abandoned the distinction it had created 12 years earlier,2 in which for the mandatory subject of wages only, pre-contract status quo and post-expiration status quo were defined differ- ently. The Board's new rule made the definition of the status quo, for post-expiration wages, consistent with the definition of the status quo for wages during the period before signing of an initial contract, and with the definition used for other manda- tory subjects during both time periods. Subsequently, the Board applied its new rule to the parties in MSEA v. City of Lewiston _________________________ 2In Easton Teachers Association v. Easton School Committee, No. 79-14 (Me.L.R.B. Mar. 13, 1979). -9- and Lewiston School Committee, No. 92-17 and -18 (Me.L.R.B. Sept. 11, 1992), finding that the employers were required to continue paying wages pursuant to the wage plan in the expired contract.3 In the case now before us, the expired contract contains three contract anniversary dates (February 1 and July 1, 1990, and July 1, 1991); on each date, three types of wage increases, applicable to most employees, took effect: an across-the-board increase, a step increase and a non-base lump sum increase based on length of service of 15 years or more. ACSUM asserts that the Board's new status quo rule for post-expiration wages should apply to the University;4 the University argues that it was not obligated to pay step increases to COLT unit members after the parties' 89-92 agreement expired, the Board's status quo rule _________________________ 3The employers in that case appealed the Board's decision and order, and the Superior Court ruled that the Board could not change its rule. No. CV-92-400 XCV-92-480 (Me. Super. Ct. And. Cty., Feb. 25, 1993). The Superior Court's Decision and Order on Appeal has been appealed to the Law Court. Docket No. AND-93-95. 4In its complaint, ACSUM made two separate allegations: first, that the University had refused to bargain by unilaterally discontinuing scheduled step increases after contract expiration; and second, that the University had refused to bargain by insist- ing to impasse upon a non-mandatory subject. In its opening statement at hearing, ACSUM rephrased its allegations, stating that the University, first, had failed to maintain the status quo, and second, had attempted to coerce employees into accepting the salary freeze being demanded at the bargaining table by unilaterally implementing the freeze (resorting to "self-help"). To the extent that ACSUM's second allegation made at hearing was intended to be different than the allegations in its complaint, the new allegation is not properly before the Board. We have reviewed the evidence presented by ACSUM, and conclude that although phrased somewhat differently, all of ACSUM's allegations are one in the same: namely, that the University made an unlawful unilateral change in wages, in violation of section 1027(1)(A) and (E) of the University Act. -10- notwithstanding.5 To support its contention, the University relies primarily on the history of bargaining between the parties; more specifi- cally, it asserts that since the University's well established practice has been not to grant wage increases covering a contract hiatus period unless a successor contract has been ratified that contains wage increases retroactively covering the hiatus, it is that well established practice that constitutes the status quo for these parties.6 Since the parties "understood and agreed" that there would be no increases following contract expiration, the Board may not order payment of increases, the University argues, citing Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279 (Me. 1979), and 26 M.R.S.A. 1026(1)(C) ("neither party shall be compelled to agree to a proposal or be required to make a concession"). At hearing, the University also pointed to the contract itself: the fact that each salary schedule has a beginning and ending date, and the fact that the contract itself has a beginning and ending date. The Board rejects the University's arguments for three reasons. _________________________ 5Neither the across-the-board increase nor the lump sum payment based on length of service is at issue, since neither was raised in the complaint. 6At hearing, the University stated that the reason for this practice is that it must fund its collective bargaining agree- ments out of its general legislative appropriation, and until the Legislature determines what it will appropriate, the University does not know whether it will have funds for salary increases. In this respect, the University is in no different position than many other public employers, particularly school boards and committees covered by the municipal collective bargaining law. They do not even have the ability, as the University does, to raise additional funds through student tuition, but must rely solely on state appropriations and municipal allocations of the local property tax. Thus, they, even more than the University, have a finite sum of money available to fund collective bargaining agreements. -11- First, although it may be appropriate in some instances, in determining the status quo during the period before a first contract, to review the employer's practices over a period of several years, the determination of the post-expiration status quo is much simpler: terms and conditions of employment con- tained in the expired contract constitute the status quo for those mandatory subjects.7 Easton Teachers Association v. Easton School Committee, No. 79-14, slip op. at 5 (Me.L.R.B. Mar. 13, 1979);8 Lane v. Board of Directors of MSAD No. 8, 447 A.2d 806, 809-10 (Me. 1982). The same is true in the private sector -- the expired contract's terms "define the parameters" of the status quo obligation. Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 779 F.2d 497, 500 (9th Cir. 1985), aff'd, 484 U.S. 539 (1988). "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 . . . ." Id. Contracts prior to the most recently expired contract are irrelevant. Auburn School Support Personnel v. Auburn School Committee, No. 91-12, slip op. at 10-11 (Me.L.R.B. July 11, 1991). For expired contracts covering multiple years, all but the last year of the contract may even be irrelevant, if terms and conditions of employment change over the life of the contract. Auburn School Administrators, slip op. at 22. Certainly, then, the Univer- sity's bargaining positions for previous contracts are irrelevant to a determination of the status quo upon expiration of the most _________________________ 7Of course, for mandatory subjects on which the expired contract is silent, past practice would determine the status quo. 8In Auburn, the Board overturned Easton only to the extent that it established a different status quo rule for wages than for other mandatory subjects of bargaining. The principle that terms and conditions of employment, as embodied in a prior agreement, must be maintained after expiration, remains good law. -12- recent contract, one that consistently granted step increases on each contract anniversary date. Even if past bargaining history were relevant, we would decline to find that a relevant past practice had been estab- lished in the circumstances now before us. Prior to the 89-92 contract, only one contract between the parties (the 83-85 agreement) granted step increases during the last year of the contract. In that instance, a successor contract was negotiated and ratified before the old agreement expired. Thus, in the only instance where a contract contained step increases that, under the Board's new rule, would have had to continue after expira- tion, no contract hiatus occurred. It is irrelevant that the University never paid step increases after expiration of any contract which itself did not contain step increases. Furthermore, even if the University had established a practice of not honoring step increase provisions in expired contracts, such a practice would not constitute the post- expiration status quo. Since the Board's old rule with respect to post-expiration wages was that wage escalator provisions could be ignored and wages frozen, bargaining agents had no choice but to acquiesce to a freeze. Such acquiescence can hardly be characterized as "agreement," in the sense that such agreement might establish a past practice which constitutes a waiver of the Board's new rule. (Although it has not used the term "waiver," in essence that is what the University is alleging.) To do so would be to nullify the new rule, for all intents and purposes, since only those employers who had been continuing to honor wage escalator provisions in spite of the Board's old rule would be required to continue doing so. Certainly if the parties to a contract have made a specific agreement that no wage increases will be given after that con- tract expires and before a successor contract is in place, such -13- an agreement would constitute a waiver of the requirement that the status quo be maintained during the contract hiatus. Auburn School Administrators, slip op. at 22. The status quo require- ment arises out of, and is an inseparable part of, the statutory duty to bargain. The purpose of the University Act, and of collective bargaining statutes in general, is to provide a stable, orderly mechanism for establishing and/or making changes in terms and conditions of employment, and bargaining is that mechanism. Accordingly, a waiver of the right to bargain must be "clear and unmistakable." State v. MSEA, 499 A.2d 1228, 1232 (Me. 1985). Waiver clauses are read constrictively. City of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982). An allegation of waiver by conduct is particularly scrutinized. State v. MSEA, 499 A.2d at 1230, citing State v. MLRB, 413 A.2d 510 (Me. 1980). In the bargaining history before us, we find no "clear and unmistakable" waiver.9 Finally, we turn to the University's argument that Caribou and section 1026(1)(C) of the University Act prevent the Board from requiring payment of wage increases that the employer has not agreed to pay. As we have stated earlier, we agree that the Board must honor any agreement the parties have reached to waive the Board's status quo requirement. We disagree that, absent such a waiver, the Board may not require wage increases. _________________________ 9Nor do we find a waiver in the contract itself. The beginning and end dates of the contract are that and nothing more. They apply to all provisions of the contract, including those that the University acknowledges it has continued to honor after expiration (such as the promotional provisions of the wage article). Since the status quo requirement, by its very nature, applies when there is no contract in place, using the contract expiration date to measure the employer's responsibilities would nullify the status quo requirement. It is unclear what special significance the beginning and end dates on the three wage schedules themselves could have, since movement from one schedule to another is not at issue here. -14- In relying on Caribou and section 1026(1)(C) of the University Act, the University in essence is arguing that the Board cannot require an employer (or bargaining agent) to maintain the status quo during a contract hiatus, since to do so would be to make a contract for the parties. This assertion flies in the face of the Board's case law, as well as the construction given to the National Labor Relations Act and to collective bargaining statutes in other states. Certainly, the Board has no authority to make a contract for these or any other parties. Caribou. The same holds true for the National Labor Relations Board. H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970). That does not mean that employers are free to ignore the provisions of an expired contract when no new contract is in place, any more than they may ignore established practices prior to agreement on an initial contract.10 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 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 _________________________ 10Imposing the status quo (requiring an employer to continue an established wage increase program) before an initial contract is agreed upon is well accepted, in spite of the fact that neither the NLRB nor the Board can impose a contract. N.L.R.B. v. Allied Products Corp., 548 F.2d 644 (6th Cir. 1977); General Motors Acceptance Corp. v. N.L.R.B., 476 F.2d 850 (1st Cir. 1973). See also Teamsters Union Local No. 48 v. University of Maine, No. 79-08 (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) (during negotiations for initial contract, employer must continue merit increase plan in place at the time the bargaining agent was certified); Council 74, AFSCME v. School Administrative District No. 1, No. 81-12 (Me.L.R.B. Mar. 11, 1981) (step increases must be continued during negotiations for initial contract); Council 74, AFSCME v. Town of Brunswick, No. 85-08 (Me.L.R.B. Apr. 19, 1985) (wage and step increases must be continued during negotiations for initial contract). -15- 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. 1979) (emphasis in original). See also Laborers Health, 779 F.2d at 500 (collective bargaining agreement's terms "survive" only in order to define parameters of employer's obligation to maintain status quo). Case law in other states supports the Board's position as well. Michigan, Florida, California, Indiana, Wisconsin and Illinois have interpreted their collective bargaining statutes to require that the wage provisions of an expired contract be honored until a new contract is in place.11 At the same time, the collective bargaining statutes in all six states embrace the policy that parties will not be compelled to agree to a proposal _________________________ 11Local 1467, IAFF v. City of Portage, 134 Mich.App. 466, 352 N.W.2d 284 (Ct. App. Mich. 1984); Wayne County Government Bar Association v. County of Wayne, 169 Mich.App. 480, 426 N.W.2d 750 (Ct. App. Mich. 1988); IAFF Local 2416 v. City of Cocoa, CA-88- 014, 11 NPER FL-19211 (Fl.P.E.R.C. Oct. 17, 1988); California School Employees Association, No. 116, 4 PERC 11031 (Cal.P.E.R.B. Feb. 22, 1980); Indiana Education Employment Relations Board, 456 N.E.2d 709 (Ind. 1983); Hartmann v. School District of Wisconsin Rapids, Dec. No. 19084-C (WERC Mar. 22, 1985); West Central Education Association v. WERC, No. 87CV257 (Cir. Ct. Pierce Cty., Apr. 22, 1988); Board of Education of Springfield Public Schools v. Springfield Education Association, 47 Ill.App.3d 193, 361 N.E.2d 697, 701 (4th DCA 1977) (in connection with step increases, trial court didn't order school board to raise salaries; it ordered parties to continue to function pursuant to expired contract). See also Vienna School District 55 v. Illinois Educational Labor Relations Board, 161 Ill.App.3d 503, 515 N.E.2d 476 (4th DCA 1987). -16- or make a concession.12 Clearly, requiring that an employer honor the wage provision of an expired contract is not equivalent to making a contract for the parties. In sum, the Board's status quo new rule treats wages as it treats other terms and conditions of employment during a contract hiatus -- unilateral changes in the wage structure as outlined in the contract are unlawful. (Stated another way, it is the wage provision that is frozen, not wages themselves.) We can find no reasonable basis upon which to distinguish the wage article in the parties' expired contract from the wage articles in Auburn School Administrators and Lewiston. The contract provided for step increases on each of three contract anniversary dates, the last two dates being July 1, 1990, and July 1, 1991. By failing, pending negotiations for a successor contract, to pay step increases due on July 1, 1992, the University has violated sec- tion 1027(1)(A) and (E) of the University Act. Accordingly, in order to effectuate the policies of the University Act, we will order the University to cease and desist from refusing to pay step increases to members of the COLT _________________________ 12Illinois - Ill.A.S. ch. 48 1607 & 1710(a) (Smith-Hurd 1986) Florida - F.S.A. 447.203(14) (1981) Michigan - M.C.L.A. 423.215 (1978) Indiana - 20 Ind.S.A. 20-7.5-1-2(n) (Burns 1992) Wisconsin - W.S.A. 111.70(1)(a) (Supp. 1992); 111.81(1) (1988) California - Of California's four public sector statutes, one contains virtually identical language; Cal. Gov. Code 3562(d) (Supp. 1993). Language in the other three conveys the principle that parties need not reach agree- ment. Cal. Gov. Code 3505 and 3517 (1980); 3540.1(h) (Supp. 1993). -17- bargaining unit in accordance with the 89-92 agreement (that is, on July 1st of each year). The University will also be ordered to reimburse members of the unit for wages lost during the period from July 1, 1992, to the date of this Order, plus interest.13 Interest is to be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977), utilizing the interest rates speci- fied in New Horizons for the Retarded, Inc., 283 NLRB 1173 (1987).14 Payment shall be made within 30 days of the date of this Order. Finally, the University will be ordered to continue to pay step increases on July 1st of each year until such time as the parties agree otherwise or bargain in good faith to impasse. ORDER On the basis of the foregoing facts 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. 1029 (1988 and 1992) and the Board's Rules and Procedures, it is hereby ORDERED: _________________________ 13In Auburn School Administrators and Lewiston, we ordered prospective interest only, since our new status quo rule for wages was announced after the parties' contracts had expired in those cases. That is not the case here. Our new rule was announced on October 8, 1991, and the 89-92 agreement expired on June 30, 1992, almost nine months later. Thus, the University had nearly nine months in which to take steps to avoid the status quo requirement altogether -- by negotiating a new contract to take effect upon expiration of the previous one. Negotiations did not begin until May 16, 1992. 14Thus, interest is to accrue commencing with the last day of each calendar quarter of the time period subject to reimburse- ment, on the total amount then due and owing at the short-term Federal rate then in effect, and continuing at such rate, as modified from time to time, until the University has complied with this Order. From July 1, 1992, to September 30, 1992, the short-term Federal rate was 8 percent. From October 1, 1992, to the present, the rate has been 7 percent. -18- 1. That the University and its representatives and agents shall: a. Cease and desist from refusing to bargain and from interfering, restraining and coercing members of the COLT unit by making unilateral changes in the payment of wages pending negotiations for a successor agreement. b. Take the following affirmative actions that are necessary to effectuate the policies of the University Act: i. Reimburse members of the COLT bargaining unit for wages lost during the period from July 1, 1992, to the date of this Order, plus interest. Wages shall be calculated to reflect advance- ment, on the wage schedule in Appendix F of the 89-92 agreement, by one step on July 1st of each year. Payment shall be made within 30 days of the date of this Order. ii. Continue to calculate and pay wages to unit members in accordance with item i. above, until such time as the parties agree otherwise or bargain in good faith to impasse. 2. That requests by ACSUM and the University for attorney's fees and costs are denied. Issued at Augusta, Maine, this 9th day of July, 1993. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 1029(7) (Supp. /s/______________________ 1992), to seek review of this Peter T. Dawson decision and order by the Chair Superior Court. To initiate such a review, an appealing party must file a complaint /s/________________________ with the Superior Court within Howard Reiche, Jr. fifteen (15) days of the date Employer Representative of issuance of this decision and order, and otherwise comply with the requirements /s/________________________ of Rule 80C of the Maine Rules George W. Lambertson of Civil Procedure. Employee Representative -19-