Androscoggin Superior Court Decision AP-09-001 (Oct. 6, 2009) affirming MSEA v. City of Lewiston School Department, No. 09-05 (Jan. 15, 2009)


DOCKET NO. AP-09-001



SEIU, Local 1989, and THE MAINE LABOR


(M.R.Civ.P. 80C)


	                        I.  BEFORE THE COURT

     Before the court is a petition filed by the City of Lewiston School Department
(the Department) asking for review of a decision of the Maine Labor Relations Board
(MLRB) pursuant to M.R.Civ.P. 80C.

     This appeal involves the collective bargaining principle that a public employer 
fails to bargain in good faith if the employer unilaterally changes the terms and 
conditions of employment, after a collective bargaining agreement has expired.  In this 
case, the Department contests the MLRB's determination that the Department violated 
this principle when it changed the terms of its bargaining agreement with the Maine 
State Employees Association, SEIU, Local 1989 (MSEA) after the agreement between the 
parties had expired.  The MSEA is the labor organization recognized and certified as the 
bargaining agent for one unit of employees of the Department.

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     The Department and the MSEA were parties to the collective bargaining 
agreement effective July 1, 2005 through June 30, 2008 (Agreement).  The Agreement set 
forth the percentages of the employees' health insurance to be paid by the employer 
and by the employee.  The Agreement specifically provided:
     For the 2007-2008 school year, the Committee's contribution will be 
     increased by a percentage equal to the annual MEA Anthem BC/BS 
     Choice Plus plan premium rate increase, with a maximum cap not to 
     exceed 13% more than the contribution for the 2006-2007 school year.  Any 
     increase above the committee's capped contribution will be paid by the 

     Pursuant to the Agreement, the Department and its employees shared 
responsibility for premium payments.  On July 1, 2006, there was a 5% increase in the 
Anthem Blue Cross Blue Shield Plus Plan (Anthem) premium.  During the 2006-2007 
school year, the Department and the employees each paid 5% more than they had in the 
prior year, which covered the 5% overall premium increase.  On July 1, 2007, there was 
an 8.66% increase in the Anthem premium.  Accordingly, during the 2006-2007 school 
year, the Department and the employees each paid 8.66% more than they had the prior 
year. [fn]1
     The Department and the MSEA began negotiating over a successor agreement in 
mid-June, 2008, and the Agreement expired before a new agreement was reached.  On 
May 2, 2008, the Lewiston School Department Benefits Specialist, Jackie Little, sent an e-
mail message to Union member Jacqueline Smith setting forth the respective 
contributions to health insurance premiums for employees as of July 1, 2008, if the new 
agreement was not settled by that date.  On July 1, 2008, the Anthem premium 
increased by 4%.  After June 30, 2008, the Department continued to contribute the same 

 [Footnote] 1.  Each year of the Agreement the Department and the employees paid the same percentage of the
premiums based on the employee's level of coverage.  For example, under a single payer plan an
employee paid 14.6% of the costs while the Department paid 85.4%.  The dollar amount increased
under this formula for both the Department and the Employees based on the increase in premiums.

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dollar amount to health insurance premiums that it contributed during the 2007-2008 
school year.  In other words, upon the expiration of the Agreement, the Department 
kept its own contribution to the premium at the same dollar level and increased the 
amount deducted from the paychecks of each unit employee to cover the full increase in 
the health insurance premiums imposed by Anthem.
     On September 5, 2008, the MSEA filed a prohibited practice complaint with the
 MLRB, the agency that is authorized by statute (26 M.R.S. § 968) to adjudicate disputes
in the field of labor relations.  The complaint alleged that the Department unilaterally 
changed the status quo established by the Agreement in violation of 26 M.R.S. § 
964(1)(A) and 964(1)(E).[fn]2  Specifically the MSEA alleged that the Department failed to 
bargain in good faith when it unilaterally changed the percentage of the health 
insurance paid by the employer during bargaining.  According to the MSEA, the
Department's action interfered with, restrained or coerced employees in the exercise of 
their rights.
     In its decision and order the MLRB agreed with the MSEA and found that the 
Department violated the Municipal Public Employees Labor Relations Law (MPELRL) 
by: failing to bargain in good faith when it unilaterally changed a term of employment 
after the expiration of the Agreement.  The School Department's decision to keep its 
own contribution to the health care premium at the same dollar level and increase the

 [Footnote] 2  The relevant subsections provide the following:
     1. PUBLIC EMPLOYER PROHIBITIONS. Public employers, their representatives
     and their agents are prohibited from:
        A.  Interfering with, restraining or coercing employees isn the exercise of the rights
     guaranteed in section 963; . . .

     * * *
        E.  Refusing to bargain collectively with the bargaining agent of its employees as
     required by section 965; . . .

     26 M.R.S. § 964(1)(A), (1)(E) (2008).

[end of page 3]     

amount deducted from the employees' paychecks constituted a change in the status 
quo.  Thus, the Department acted to make a unilateral change in a mandatory subject of 
bargaining that constituted a refusal to bargain in violation of § 964(1)(E) and 
(1)(A).  Accordingly, the MLRB determined that the Department was obligated to 
increase its contributions to health insurance premiums after the Agreement had 
     The Department asserts that the terms of the Agreement expressly limit increases 
to the Department's contributions to health insurance premiums to the 2006-2007 and 
2007-2008 school years.  It is the Department's contention in this appeal that the MLRB 
acted beyond its statutory authority and in violation of the contractual rights of the 
Department in improperly construing the Agreement between the parties.  The 
Department argues that it is the MLRB that acted improperly when it unilaterally 
obligated the Department to increase its contributions to health insurance premiums 
contrary to the terms of the expired Agreement.

                        III.  DISCUSSION
A.  Standard of Review.
     The court may only reverse or modify an administrative agency's decision if it is 
based upon "bias or error of law," is "unsupported by substantial evidence on the 
whole record," is "arbitrary or capricious," or involves an "abuse of discretion" by the 
agency. 5 M.R.S. § 11007(4)(C)(4)-(6) (2008).  The court cannot "substitute its judgment 
for that of the agency on questions of fact." 5 M.R.S. at § 11007(3).  The focus on appeal 
is not whether the court would have reached the same conclusion as the agency, but 
whether the record contains competent and substantial evidence that supports the 
result reached by the agency.  CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, 703

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A.2d 1258, 1261.  This court cannot "attempt to second guess the agency on matters 
falling within its realm of expertise," and judicial review is limited to the question of 
"whether the agency's conclusions are unreasonable, unjust or unlawful in light of the 
record."  Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).  Where 
the question is one of statutory interpretation the court reviews for errors of law.  Botting 
v. Dep't of Behavioral & Developmental Servs., 2003 ME 152,  9, 838 A.2d 1168, 1171.  The
MLRB is granted considerable deference in construing public employment collective 
bargaining statutes because of its expertise in the area of labor relations.  Mountain Valley Educ.
Ass'n v. Maine Sch. Admin. Dist. No. 43, 655 A.2d 348, 354 (Me. 1995).

B.  Error of Law.
     The Department asserts it is unlawful for the MLRB, without any statutory 
authority, to impose an obligation for school districts to pay increased health insurance
contributions that were never negotiated and never budgeted.  The court must 
determine whether the MLRB erred in how it defined the status quo that must be 
maintained for health insurance premium costs when the Agreement expired and the 
parties were negotiating a successor agreement.
     The MPELRL, 26 M.R.S.A. §§ 961-974, extends to all public employees the rights 
to organize and to bargain collectively.  Minot Sch. Comm. v. Minot Educ. Ass'n, 1998 ME 211,
 5, 717 A.2d 372, 375.  Collective bargaining includes the parties' mutual 
obligations "to confer and negotiate in good faith with respect to wages, hours, working
conditions and contract grievance arbitration," 26 M.R.S.A. § 965(1)(C), and "to 
participate in good faith in the mediation, fact-finding and arbitration procedures 
required by this section," 26 M.R.S.A. § 965(1)(E) 2008.  The MPELRL empowers the 
MLRB to prevent "the prohibited acts enumerated in section 964," 26 M.R.S.A. § 
968(5)(A), one of which is "refusing to bargaining collectively,"  26 M.R.S.A. § 964(1)(E).

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     The Law Court has recognized the "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 Maine 
School Administrative Dist., 447 A.2d 806, 810 (Me. 1982).  This rule is based on the 
principle that unilateral alterations of the collective bargaining agreement are in 
contravention of the statutory duty to bargain in good faith.  Id.  Accordingly, when an 
employer initiates a unilateral change in violation of his statutory responsibilities, he 
commits an unfair labor practice.  Id.  The requirement to bargain and negotiate in good 
faith includes the obligation to maintain the status quo following the expiration of a 
contract. Board of Trustees v. Associated Colt Staff, 659 A.2d 842, 843 (Me. 1995). [fn]3
     In the Colt decision, the Law Court addressed the definition of status quo at the 
expiration of a collective bargaining agreement. Colt, at 842.  The University of Maine 
System (the University) and its bargaining agent, ACSUM, had a collective bargaining 
agreement that provided for across-the-board wage increases for employees for each 
year of the contract. Colt, at 844.  When the agreement expired, the University adhered 
to the last wage schedule, and discontinued the annual step increases for employees, 
except as they applied to promotions. Id.  The MRLB concluded that the failure of the 
University to adhere to the wage increase after the agreement expired constituted a 
unilateral change in the status quo prohibited under the law. Id. at 843-44.  The Court 
found that "[t]o 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

 [Footnote] 3  In cases involving allegations of unilateral changes after the expiration of an agreement, the
MLRB looks to the terms of the expired agreement as evidence of the status quo that must be
maintained.  See, e.g., MSEA v. School Committee of City of Lewiston, No. 90-12 (Aug. 21,
1990) at 16.  The established practices regarding the mandatory subjects of bargaining are also
considered to determine the status quo between the parties.  See, e.g., Council #74, AFSCME v.
School Admin. District #1, No. 81-12, at 4 (March 11, 1981).

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salary is another." Id. at 845 (quoting Board of Coop. Educ. Servs. v. New York State Pub.
Employment Relations Bd., 41 N.Y.2d 753, 363 N.E.2d 1174, 1177, 395 N.Y.S.2d 439 (N.Y.
1977)).  The MLRB's "recently adopted dynamic status quo rule" improperly "obligated 
the University to pay substantial increases in wages not approved by its trustees, and 
dramatically altered the status and bargaining positions of the parties." Id. at 845.  The 
rule changed, rather than maintained, the status quo. Id.
     In the instant case, the respondents contend that maintaining the status quo 
required maintaining the percentage of the premium being paid by the employer and 
the employees at the expiration of the Agreement.  In other words, in order to maintain 
the status quo, the Department and its employees were to continue to share the 
premium payments at the same proportions they shared them over the life of the 
Agreement.  Conversely, the Department contends the status quo should be the dollar 
amount paid by the employer for health insurance premiums at the expiration of the 
Agreement.  The Department claims the MLRB erred in apply a dynamic view of 
status quo in this case.
     According to the terms of the Agreement the Department does not expressly 
agree to pay a percentage of the health care insurance premiums.  At the same time, the
Agreement does not provide that the Department would contribute a specific dollar 
amount toward the premium.  In the Agreement, it is the employees' contribution that 
is expressed as a fixed dollar amount, not the employer's.  Unlike Colt, this case does 
not involve the continuation of step increases in wages, which the Law Court 
determined would change the status quo.  Instead, the Department's act to burden the 
employees with the entire increase in premiums when previously the costs had been
shared changed the status quo.  The Department and the employees had the same level 
of cost sharing for all three years the Agreement was in force.  Both the Department's

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share and each the employee's share increased at the same rate as Anthem's increase in 
the overall health insurance premium.  The contract included a 13% cap on the amount 
of premium increase the employer would absorb, but the cap was never reached.  The 
terms of the contract demonstrate that both parties anticipated increases in premiums 
and established a mechanism for sharing the burden of those increases, up to 13%.
     When Anthem raised its premium rate by 4% in July 2008, both the Department 
and the employees would have had to pay 4% more than they had the prior year for 
health insurance under the terms of the Agreement.  If the Department had continued 
to abide by the language in the Agreement both the Department and the employees 
would have had to shoulder a portion of the overall premium increase.  Instead, the 
Department passed the burden of the entire increase onto the employees, so that 
employees saw an increase of 26-37%, depending on their level of coverage.  Thus, the
Department's refusal to pay part of the rate increase would have resulted in a sudden 
obligation for employees to pay drastically higher health insurance premiums.  The 
MLRB did not err in considering the terms of the Agreement and the substantial impact 
of the change on the employees.  The Board reasonably concluded that the 
Department's action was a significant unilateral change in a mandatory subject of 

C.  Mootness.
     The MSEA asserts that the parties have agreed to a new 2008-2011 collective 
bargaining agreement, which provides for retroactive compensation to employees who 
paid the disproportionate amount of health insurance premium during the period 
between contracts.  Thus, the MSEA contends that because the Department is in the 
process of compensating employees for premium overpayments due to the disruption 
of the status quo, the issue is now moot.

[end of page 8]
     Courts dismiss as moot questions whose resolution will have limited or no 
practical effect.  Bureau of Employee Relations v. Maine Labor Relations Bd., 655 A.2d 326
(Me. 1995).[fn]4  Courts review for mootness by examining the record to determine whether
there remain sufficient practical effects flowing from the resolution of the litigation  to 
justify the application of limited judicial resources. Id.
     The MSEA has not provided evidence of a new agreement and the Department 
has not stipulated to this factual assertion.  Regardless of this issue, the appeal should 
be denied for the reasons stated above.

                   IV.  DECISION AND JUDGMENT
     The clerk will make the following entry as the Decision and Judgment of the 
        The judgment of the Maine Labor Relations Board is affirmed.
Dated:  October 6, 2009
                                                                 Thomas E. Delahanty II
                              Justice, Maine Superior Court

 [Footnote] 4  The Law Court has recognized three exceptions to the mootness doctrine:

     First, the court will determine whether sufficient collateral consequences will
     result from determination of the questions presented so as to justify relief. Second,
     while technically moot in the immediate context, questions of great public interest
     may nevertheless be addressed for the future guidance of the bar and of the public.
     Third, issues which may be repeatedly presented to the trial court, yet escape
     review at the appellate level because of their fleeting or determinate nature, may
     appropriately be decided.                              

Id. (citing State v. Irish, 551 A.2d 860, 862 (Me. 1988).

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