I.   Background


     When beginning negotiations for a successor collective bargaining agreement, Petitioner 
Eliot Police Association and Respondent Town of Eliot agreed to a series of ground rules.
Ground Rule #6 stated "[n]o new proposals may be added to the package after the third 
negotiation session, unless agreed to by the parties." The parties met several times during March, 
April and May of 2015. In the beginning of June, the parties had reached a tentative agreement. 
In order for the agreement to become effective both sides needed to ratify it. The Association 
ratified the agreement in the beginning of June.

     That same month, the Town's annual election was held and one of the members of the 
Town's negotiating team lost his bid for reelection. The incoming Select Board member who 
took over the spot on the negotiating team, Mr. Pomerleau, ran on a platform of ensuring that 
taxpayer dollars were spent wisely. After a Board of Selectmen executive session informing the 
new members about the terms of the tentative agreement, the Board voted to ask the Association 
to come back to the negotiation table. The Town Manager compiled a summary of 15 concerns

       
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in a document titled "Concerns about Ratification of CBA." Some of the concerns were related 
to articles that were unchanged from the prior agreement and had not been raised in negotiations 
up to that point.

     The Association's attorney's written response to the Town objected to the introduction of 
new topics not previously discussed as in violation of Ground Rule #6. At a meeting of the 
parties on July 29, 2015, the parties explained their positions and the Association urged the  
Board to vote on the existing tentative agreement. The Board unanimously rejected the tentative 
agreement on August  13, 2015.

     In September 2015, at the urging of the Association, the Board reduced the number of
concerns it sought addressed in negotiation. The parties met a few times in late 2015 to discuss 
and mediate with little success. On February 22, 2016, the Association filed a prohibited practice 
complaint with the MLRB alleging that the Town failed to bargain in good faith in violation of 
26 M.R.S. § 965(1)(C) by raising new issues in violation of the ground rules. On November 22, 
2016, a hearing was held. The MLRB issued its Decision and Order on February 3, 2017. The 
MLRB found that there was no violation of Section 965. The Association appealed the Decision 
of the MLRB.


     II.  Standard of Review

        When acting in an appellate capacity pursuant to Rule 80C and the APA, the Court 
reviews an agency's decision for errors of law, abuse of discretion, or findings not supported by 
substantial evidence in the record. Somerset Cnty. v. Dep't of Corr., 2016 ME 33, ¶14, 133 A.3d 
1006; 5 M.RS.A. § 11007(4)(C)(l )-(6). The party seeking to vacate an agency's decision bears 
the burden of persuasion to demonstrate error. Rossignol v. Me. Pub. Emples. Ret. Sys., 2016 ME
      

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115, ¶6, 144 A.3d 1175, Clark v. Hancock Cnty. Comm'rs, 2014 ME 33, ¶22, 87 A.3d 712;
Forest Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36 ¶24, 39 A.3d 74.

     An agency has the authority to determine the weight to be given to the evidence.
Rossignol , 2016 ME 115, ¶6, 144 A.3d 1175; 5 M.R.S.A  § 11007(3). Findings of fact will be 
affirmed if they are supported by any competent evidence in the record, even if the record 
contains inconsistent evidence or evidence contrary to the result reached by the agency. Watts v. 
Bd of Envtl. Prot., 2014 ME 91, ¶5, 97 A.3d 115, 118. The reviewing court will vacate a 
determination that a party failed to meet its burden of proof only if the record compels such a 
conclusion to the exclusion of any other inference. Rossignol, 2016 ME 115, ¶6, 144 A.3d 1175.

     Questions oflaw are subject to de novo review. York Hosp. v. HHS, 2008 ME 165, ¶32, 
959 A.2d 67. Deference is generally given to an agency's interpretation of an ambiguous 
regulation or statute that is within its area of expertise, but an agency's interpretation will be 
rejected if it is unreasonable or if the statute or regulation plainly compels a contrary result.
Cheney v. Unemployment Ins. Comm'n, 2016 ME 105, ¶6, 144 A.3d 45; Lippitt v. Bd.  of
Certification/or Geologists & Soil Scientists, 2014 ME 42, ¶17, 88 A.3d 154.



     III.   Discussion

      The issue before the Court is whether there is evidence in the record to support the finding 
that the Town's breach of Ground Rule #6 by late introduction of issues does not constitute a 
failure to negotiate in good faith pursuant to 26 M.R.S. § 965(1)(C). The statute states:

            Negotiations.  It is the obligation of the public employer and the bargaining 
         agent to bargain collectively. "Collective bargaining" means, for the purposes of 
         this chapter, their mutual obligation:
            ...
             C. To confer and negotiate in good faith with respect to wages, hours, 
         working conditions and contract grievance arbitration, except that by such


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         obligation neither party may be compelled to agree to a proposal or be required to 
         make a concession . .. ;

26 M.R.S. § 965(1)(C). The MLRB has held that "violating a ground rule is not a per se violation 
because it is not a failure to meet any of the minimum statutory requirements nor is it an outright 
refusal to bargain." IAFF v. City of Augusta, No. 11-03 at 14-15 (Dec. 15, 2011). However, the 
MLRB and the Law Court have both found that the breaking of a ground rule may be a violation 
of the statutory requirement to bargain in good faith depending upon the intent and effect of the 
breach and the surrounding circumstances.

     In Caribou School Dep't v. Caribou Teachers Assoc., the Law Court found that breaking 
a ground rule, among other factors, did constitute failure to negotiate in good faith. Caribou 
School Dep't v. Caribou Teachers Assoc., 402 A.2d  1279 (Me. 1979). In Caribou, similarly to  
the case at hand, one of the ground rules set for negotiation between the Teachers' Association 
and the School Department was that no new issues could be raised after the negotiation packages 
were distributed unless mutually agreed upon. Id. at 1280. After eight months of negotiation and 
nine days after the old contract expired, the School Department raised the issue of the effective 
date of the new contract for the first time. Id. at 1283. The Law Court found that taken together,
the Department's raising of the issue of effective date eight months after negotiations had begun, 
its initial bargaining proposal that suggested that the term and effective date of the new contract 
would be the same as it had been historically, and the violation of the negotiation ground rule 
provided sufficient support for the MLRB's finding of failure to negotiate in good faith. Id. The 
Court looked to caselaw on the National Labor Relations Act, which the Court read to stand for 
the proposition that "such a delay in introducing a contract issue while the other party proceeds 
under the impression that the issue is settled is evidence of dilatory tactics and bad faith." Id. The


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Law Court specifically stated that the MLRB "did not base its finding solely on the fact that the 
negotiation ground rule had been violated by the Department." Id. at 1282.

     The MLRB also cites to Town of Orono v. IAFF Local 3108, Orono Fire Fighters, No.
11-11 (Aug.  11, 2011), and Massabesic Education Assoc. v. RSU 57 Board  of Directors, No. 11-17 
(Nov. 10, 2011) for the proposition that the breaking of a ground rule alone does not
constitute failure to negotiate in good faith. In Massabesic, there was a ground rule requiring that 
the negotiations be kept confidential. Massabesic Education Assoc. v. RSU 57 Board of 
Directors, No. 11-17 (Nov. 10, 2011). There were two alleged breaches of that rule by the school 
superintendent. First, the superintendent spoke at a school board meeting concerning the school 
budget and alluded to information concerning the negotiations. Id. at 9. The MLRB found 
that there was not necessarily a breach at that time. Id. at 10. Second, the superintendent sent out an 
email about a grievance to a group of people, including an individual who was not a part of
either negotiating team. Id. While the email was a breach of the ground rule, the MLRB found 
that there was not "evidence sufficient to demonstrate that the Employer has breached the 
negotiating ground rule on confidentiality to such an extent as to constitute a failure to bargain in 
good faith." Id. at 11.

     In Orono, the parties agreed to a ground rule to keep the negotiations confidential. Town
of Orono v. IAFF Local 3108, Orono Fire Fighters, No.  11-11 at 3 (Aug. 11, 2011). The union 
president emailed a newspaper suggesting coverage of the negotiations and identifying the 
parties' arguments. Id. at 12. The MLRB found that the intent of the email was to disrupt
negotiations and publicly pressure the Town to change its position. Id. The MLRB found that 
"[t]he disclosure to the press was a flagrant violation of the ground rule made with the intent of 
substantially altering the dynamics of the bargaining process that the parties had agreed upon."


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Id. Given the nature and timing of the breach, the MLRB found that it amounted to failure to 
negotiate in good faith.

     These cases demonstrate that a breach of a negotiation ground rule alone is not sufficient 
to constitute failure to negotiate in good faith pursuant to 26 M.R.S. § 965(1)(C). There must be 
something more that makes that breach truly disruptive to the negotiation process.

     In this case, the MLRB looked to two different time periods, before the voting down of 
the tentative agreement and after, separately. The MLRB found that because the Town did not 
insist upon the negotiation of the new issues before going to a vote, the introduction of those new 
issues did not materially disrupt the negotiation process and therefore did not constitute a failure 
to negotiate in good faith. The MLRB also determined that the continued adherence to Ground 
Rule #6 after the Town rejected the tentative agreement would have hindered rather than 
facilitated the continued negotiations. Because Ground Rule #6 had become a hindrance after the 
rejection of the tentative agreement, the MLRB determined that failing to adhere to Ground Rule
#6 was not a failure to negotiate in good faith.

      The Court looks first to the MLRB' s determination as to the breach of Ground Rule #6 
prior to the Town's rejection of the tentative agreement. While arguably there is support in the 
record for the finding that the Town's raising of new issues after months of negotiation did 
disrupt the negotiation process, there is also support  for the MLRB's decision that the raising of 
new issues alone was not enough to constitute failure to negotiate in good faith. Even where the 
case could be determined another way, the Court must affirm the decision of the MRLB if any
reasonable grounds support it. See Stein v. Me. Crim. Justice Acad., 2014 ME 82, ¶11, 95 A.3d 
612, 618. In support of its finding, the MLRB points to the factual finding that the Town did not


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insist upon negotiating the newly proposed issues prior to voting.[fn]1 The MLRB determined that 
there were not sufficient exacerbating circumstances to make the breach of Ground Rule #6 prior 
to the Town's vote on the tentative agreement a failure to negotiate in good faith. The Court  
finds no abuse of discretion by the MLRB in its determination concerning the time period prior
to the Town's rejection of the tentative agreement.

     The Court also affirms the MLRB's post-tentative agreement determination. The stated 
purpose of the Municipal Public Employees Labor Relations Law is "to promote the 
improvement of the relationship between public employers and their employees by providing a 
uniform basis for recognizing the right of public employees to join labor organizations of their 
own choosing and to be represented by such organizations in collective bargaining for terms and 
conditions of employment." 26 M.R.S. § 961. The intent of the statute, as derived from its plain 
language, is to aid the collective bargaining process, not to hinder it. As the Law Court noted in 
Caribou, a finding of failure to negotiate in good faith may not "rest alone on a technical  
violation of the negotiation ground rule." Caribou, 402 A.2d at 1282. The fact finder must look 
not only to whether a rule has been broken, but also to the circumstances surrounding the broken 
rule for evidence of bad faith bargaining in order to support a finding of violation of Section 965.
Id. The MLRB determined that continuing to enforce Ground Rule #6 after the tentative 
agreement was rejected would impede the negotiation process. Because the intent of the statute is 
to facilitate negotiation, and because the MLRB found that enforcement of Ground Rule #6 was 
no longer facilitating negotiation after rejection of the agreement by the Town, the MLRB determined
that Town did not violate Section 965 by seeking to discuss new issues after the

[fn]1  The MLRB notes that it was not asked to review the Town's rejection of the tentative 
agreement. Instead, it was asked only to review the breaking of Ground Rule #6 as it pertains to 
the Town's compliance with 26 M.R.S. § 965(1)(C)


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rejection of the tentative agreement. The Court finds that the MLRB's interpretation is consistent 
with the statute and prior Law Court interpretation. The Court affirms the MLRB's decision with 
regards to the time period following the Town's rejection of the tentative agreement.



     IV.   Conclusion

        The Court affirms the decision of the Maine Labor Relations Board.




Date:  12/5/17                                      /s/___________________________________
                                                    Michaela Murphy
                                                    Justice, Superior Court


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