The opinion
EN I E RED DEC 3 0 2014
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. AUGUSTA
DOCKET NO. AP-14-38
REM~ kEN- 1)-tl-IL\-
MARANACOOK AREA
SCHOOL ASSOCIATION,
Petitioner,
v. ORDER OF COURT
R.S.U. NO. 38 SCHOOL BOARD
et al.,
Respondents.
The undersigned heard oral argument in this matter on October lOth,
2014. In its M.R. Civ. P. SOC• complaint filed May 29.., 2014, the Maranacook Area
School Association(" Association") alleges that the Maine Labor Relations Board
("MLRB") erred by concluding that enforcement of a salary step increase
provision in the parties' expired collective bargaining agreement in arbitration
under 26 M.R.S.A. § 964-A(2) was precluded by the Law Court's holding in Board
of Trustees of the University of Maine System v. Associated COLT Staff of University of
Maine System, 659 A.2d 842 (Me. 1995) (hereinafter "COLT"). The Association
also claims the MLRB committed procedural errors by failing to honor the
Association's request for a hearing in order to create a record and by the hearing
officer declining the Association's request to recuse herself from the case "despite
her conflict of interest."
In addition to the above, in its Brief and at oral argument the Association
also claimed errors were made in relation to:
a) The MLRB denying the Association's request to file a reply to R.S.U.
No. 38 School Board's reply brief;
1 Notwithstanding that petitioner's complaint states the matter is being brought pursuant to Rule
SOB of the Maine Rules of Civil Procedure, the undersigned is confident that the matter is actually
an SOC appeal, see 26 M.R.S.A. § 968(f); City of Augusta v. Maine Labor Relations Bd., 2013 ME 63, <J[
S, 70 A.2d 26S, 271 (Me. 2013).
b) Failure of the MLRB to adopt rules "necessary to establish a procedure
to implement the intent of 26 M.R.S. §964-A"; and
c) Refusal of the MLRB to allow an evidentiary hearing on the issue of
recusal of the hearing officer.
I. Background:
The Regional School Unit No. 38 ("RSU 38") is comprised of the
municipalities in Manchester, Readfield, Wayne, and Mt. Vernon. The
Association is the bargaining agent, within the meaning of 26 M.R.S.A. § 962(2)
for a bargaining unit of teachers and certain other professional staff members
employed by the RSU 38 School Board (the "School Board"). The most recent
collective bargaining agreement ("CBA" or "Agreement'') between the School
Board and the Association expired on August 31, 2013. Record, Petition for
Determination at Article 24. Upon expiration of the Agreement, the School
Board continued to maintain the static status quo' with respect to all matters
covered by the expired Agreement, including the salaries paid to bargaining unit
members. Under the static status quo, employees are paid the same salaries they
were paid before the contract expired, but do not receive the annual salary step
increases set out in the Agreement.
On October 11, 2013, the Association filed a grievance alleging that salary
step increases should have been given to the bargaining unit members effective
at the start of the 2013-2014 school year. Record, Petition for Determination, Ex.
B. The Superintendent and the School Board denied the grievance, and the
Association notified the School Board by letter dated November 22, 2013 that it
wished to proceed to arbitration with respect to the grievance. Record, Petition
for Determination, Ex. C.
By cover letter dated December 11, 2013, the School Board filed a petition
under 26 M.R.S.A. § 964-A seeking a determination that the salaries payable after
the expiration of the Agreement were subject to the static status quo doctrine and
that teachers could not claim a right to be paid experience step increases after the
contract expired. Record, Item 2.
The Association filed a response to the Petition dated January 8, 2014,
alleging that the MLRB had no jurisdiction to hear the Petition but did not make
any arguments concerning the merits of the Petition. Record, Item 3. The School
Board filed a brief dated January 31, 2013. Record, Item 4. The Association
subsequently withdrew its jurisdictional objection. Record, Respondent's Brief,
2 Courts across the country have developed the "status quo" doctrine that in reality consists of
two "doctrines": the "static" status quo doctrine and the "dynamic" status quo doctrine. The
static quo doctrine requires and permits public employers to pay only those wages in effect when
the employment contract expires, unless the contract provides otherwise, while the dynamic
status quo doctrine requires and permits a public employer to pay wages according to the wage
plan of the expired agreement, including any scheduled step increases. See COLT at 846, 847
(Wathen, C.J. dissenting).
2
3/10/14. In an Interim Order dated March 21, 2014, the MLRB determined that
no evidentiary hearing would be held and that the parties should submit written
arguments. Record, Item 7.
The Association subsequently submitted a brief addressing the merits of
the Petition (Record, Item 9), the School Board submitted a reply brief
responding to the Association's arguments (Record, Item 10), and on May 15,
2014, the MLRB issued its Status Quo Determination (Record, Item 1).
II. Standard of Review:
The Court reviews the MLRB's decisions for "error of law, abuse of
discretion, or clear error." City of Augusta v. Me. Labor Relations Bd., 2013 ME 63,
«j[ 14, 70 A.3d 268 (citing COLT 659 A.2d at 844). The Court will "defer to the
agency's interpretation and application of the statute" when the administration
of that statute has been entrusted to the agency by the Legislature. Id. (quoting
AFSCME Council 93 v. Me Labor Relations Bd. 678 A.2d 591, 593 (Me. 1996). The
Court grants the MLRB "considerable deference in constructing the Municipal
Public Employees Labor Relations Law ("MPELRL"). Mountain Valley Education
Ass'n v. Me. Sch. Admin Dist. No. 43, 655 A.2d 348, 351 (Me. 1995).
III. Issues:
Whether the Salary Step Increase Provision in the Association and School Board's
Collective Bargaining Agreement Continues to be Effective Following the
Expiration of the Agreement in Light of The Law Court's Decision In COLT.
At the outset the undersigned notes that according to one author
"[D]uring the 1960s and 70s, the spread of strikes by teachers prompted many
states to enact collective bargaining statutes to codify the means of negotiations
between teachers and school districts. Today, thirty-five states authorize
collective bargaining and utilize mediation, fact-finding procedures, and/ or
arbitration procedures to settle bargaining impasses. In addition, .in collective
bargaining statutes, twenty-seven states now prohibit teacher strikes and
eighteen states impose penalties for teacher strikes. As a result of this type of
state legislation, both national and local teachers' unions have emerged as
powerful entities that negotiate collective bargaining agreements on behalf of
teachers .... "'
Similar to this case, the Law Court in COLT addressed whether the
University of Maine breached its duty to bargain in good faith by discontinuing
the annual step increase in wages included in a collective bargaining agreement
that had expired. COLT, 659 A.2d at 843. The alleged breach was based on an
obligation to maintain the status quo• following the expiration of a contract
3 See "Educational Collective Bargaining: The Effect of Impasse Resolution Procedures on Public
School Teachers", 5 Y.B. On Arb. and Mediation 341.
4 The undersigned found the following of assistance in reaching the decision made in this matter:
James C. May, The Law And Politics Of Paying Teachers Salary Step Increases Upon Expiration Of A
3
implicit in the requirement to bargain in good faith. Id. In the underlying
proceeding, the MLRB determined that the University's failure to honor the
annual step increases in wages constituted a unilateral change in the status quo
prohibited by Maine law. Id. The Law Court disagreed with the MLRB and
affirmed the Superior court's decision vacating the MLRB' s decision based on
considerations of fairness as well as the Legislature's intent to protect municipal
and state agency budgets from increases in wages imposed without agreement
by the governing body. Id. at 844-846.
In addition, COLT explained that "[b]eyond the unfairness of the dynamic
status quo rule's application" the so-called dynamic status quo rule was in
"contravention of the statutory language and the legislative history of Maine's
public employment labor relations law." Id. The Law Court explained that the
section imposing the duty to negotiate in good faith, and thus maintain the status
quo when a contract expires, also provides that "neither party shall be compelled
to agree to a proposal or be required to make a concession." Id. (quoting 26
M.R.S.A. § 1026(1)(C)). The payment of wages, the Law Court explained, can
have an "enormous impact" on the University's budget and constituted a
"substantial concession" by the University in direct contravention of the
prohibition contained in section 1026(1)(C). Id. (citations omitted).
Furthermore, the Law Court found that other statutory provisions made
clear that "the Legislature was careful to protect the public fisc from wage
increases that were neither bargained for nor approved by the public employer"
including section 1026(4)'s restriction that arbitrators may only recommend, and
not bind parties as to salaries and pensions in Maine. Id. (citing 26 M.R.S.A. §
1026(4)). Finally, the Law Court explained that the "dynamic status quo
rule ... obligates the University to pay substantial increases in wages not
approved by its trustees, and dramatically alters the status and bargaining
positions of the parties. It changes, rather than maintains the status quo." Id. at
846. While the dynamic status quo rule could "be utilized in private sector labor
law, and in some public sector labor law, its adoption by the [MLRB] is contrary
to the intent of Maine's public employer labor statute as expressed it its plain
language and history." Id. Accordingly, COLT provided a stem renunciation of
the dynamic status quo rule as applied to wage increases for organizations
governed by MPELRL.
Nevertheless, the Association attempts to distinguish COLT, by pointing
to MLRB decisions from 1991 when the dynamic status quo rule was first
adopted with the implication that they are still good law. However, as discussed
above, COLT explicitly rejected the dynamic status quo rules in cases like the one
before the undersigned, where an expired agreement provides for salary step
increases. Furthermore, the Legislature "incorporated the concept of the 'static
status quo' into the municipal employee collective bargaining statutes."' City of
Augusta v. MLRB, 2013 ME 63, €]I 18, 70 A.3d 268 (citing 26 M.R.S.A. § 964-A(2)
(providing in pertinent part that grievance arbitration provisions continue after
Collective Bargaining Agreement, 20 VT. L. REV. 753 (1996) and Steven J. Scott, The Status Quo
Doctrine: An Application To Salary Step Increases For Teachers, 83 CORNELL L. REv. 194 (1997).
4
the expiration of a collective bargaining agreement, but only for provisions
"enforceable by virtue of the static status quo doctrine")).
The Law Court's ruling in COLT and the Legislature's subsequent
incorporation of the static status quo into MPELRL also undermines the
Association's argument that COLT is distinguishable because it relied heavily on
the "fairness" issue and the "budgetary" impact on the University System. The
Association raises the "fairness" issue and then asserts that "if it were permitted
to create an evidentiary record it would distinguish the facts in the COLT case by
proving that placement of teachers on the RSU 38 salary plan occurs according to
total teaching experience, including experience acquired outside RSU 38, as a
dynamic wage provision, in accord with pre-contract wage treatment..." Pet.'s
Brief, 4-5. Regarding the fairness issue, while COLT turned in part on
considerations of fairness, the Law Court went beyond those considerations to
generally denounce the dynamic status quo rule as to step salary increases for
municipal employers. 659 A.2d at 845-46. Accordingly, unlike COLT, the parties
were, or should have been, well aware of COLT's rejection of the dynamic status
quo rule.
Furthermore, regarding the "budgetary" impact, the Association has not
alleged that it would be able to demonstrate the salary step increase it seeks
would not require the School Board to pay substantial increases in wages that
dramatically alter the status and bargaining positions of the parties in
contravention of COLT. This is likely because the Agreement sets out the salary
increases the teachers would receive. Record Petition for Determination, Ex. A,
Appendix A (showing annual increases of at least approximately $900).
The Association also attempts to distinguish COLT by pointing to the
MLRB's decision in Me. State Employees Ass'n v. City of Lewiston, MLRB No. 09-05
at 9 Qan. 15, 2009) [Appendix 3 to MLRB's Brief] ("Lewiston"). In Lewiston, the
Maine State Employees Association alleged that the Lewiston School Department
violated MPLERL by unilaterally changing a term of employment after the
expiration of the parties' collective bargaining agreement. Id. at 1. The issue
presented in the case was whether increasing the employees' payroll deduction
for health insurance premiums after the expiration of the collective bargaining
agreement constituted a unilateral change by the School. Id. at 7. Upon
expiration of the parties' agreement, the School kept its own contribution to the
health insurance premium at the same dollar level and increased the amount
deducted from the paychecks of each unit employee to cover the increase in the
health insurance premiums imposed by the carrier. Id. Lewiston revolved
around how to define the status quo. The School argued it should be "the dollar
amount paid by the employer for health insurance premiums at the expiration of
the agreement," while the association argued it should "be the percentage of the
premium being paid by the employer and the employees at the expiration of the
agreement." Id. at 7-8.
In accepting the association's definition of the status quo, Lewiston
determined that the case was not controlled by COLT. Id. at 8-9, 11. Lewiston
noted that the Law Court in COLT concluded that "requiring the employer to
5
continue granting step increases 'dramatically alters the status and bargaining
positions of the parties" and that to "say the status quo includes a change and
means automatic increases in salary is another." Id. at 8. Unlike COLT, in
Lewiston the school's interpretation of the status quo presented a very significant
change to the wages, hours and working conditions of the employees. Id. at 9. In
particular, Lewiston explained that in dollar terms, the employees' increased
contributions-in light of increasing insurance rates-was $244, $432, $550, and
$669 for the different levels of coverage. Id. at 9. This ruling was based on the
terms of the parties' agreement that established how the health insurance
premium costs are shared between the employee and the Employer. Id. at 9. In
other words, Lewiston determined that maintaining the status quo meant
maintaining the proportion of the premium paid by the association and the
school. Id. at 11. An analogous situation regarding wage increases would be,
however unlikely, if the wage increases were keyed off paying the employees a
certain percentage above the poverty line. This is not the situation in the present
case, which involves facts nearly identical to COLT.
Finally, without explicitly saying so in its brief, but certainly suggesting it
during oral argument, the Association urges the Court to not follow COLT. The
Association argues that there is no rationale to permit the term regarding wages
to be frozen upon contract expiration, while other provisions including paying
for health insurance apply after expiration.' It is conceded that COLT was a 4-3
decision of the Law Court, with all the authors of that decision no longer on the
present Law Court. Be that as it may, the Law Court has expressly ruled on the
issue before this Court in COLT; moreover, if the present Law Court found any
infirmities in the COLT decision the Court had the opportunity as recently as in
City of Augusta v. Me. Labor Relations Bd., supra, to overrule COLT. It did not.
Instead, the Law Court affirmed the Superior Court's decision to affirm the
decision of the MLRB where, to preserve the status quo, an employee whose
status changed from active to retired would be entitled to receive benefits in
place for retirees as set forth in the expired agreement. 2013 ME 63, 'll'll18-20, 70
A.3d 268. It appears that at least three other collective bargaining states, New
Hampshire, Pennsylvania, and Hawaii, also forbid payment of steps after
contract expiration.•
Accordingly, this Court declines to overturn the MLRB's decision, and in
effect overrule the Law Court's decision in COLT, because the MLRB properly
looked at the terms of the expired agreement between the Association and RSU
38 and found no language reflecting the parties' intent to continue the payment
of step increases irrespective of the COLT decision. See AFSCME Council 93 v.
State of Maine Dep't of Admin. Fin. Servs., MLRB No. 03-13 and 04-03 at 22
(rejecting AFSCME' s attempt to find an agreement to continue step increases).
5 This same argument was raised unsuccessfully by the dissent in COLT, supra at 847.
6 Appeal of Milton Sch. District, 625 A.2d 1056 (N.H. 1993); Fairview Sch. Dist. v. Commonwealth
Unemployment Compensation Bd. of Review, 454 A.2d 517 (Pa. 1982); Haw. Rev. Stat. §89-9(d) (1993).
6
The Association's Request for an Evidentiary Hearing
The Association argues that the MLRB erred in refusing to permit a factual
record to be made. The Association argues that if it were able to make a factual
record it would have established:
1) RSU 38 knew or should have known about the prior holdings by
the MLRB applying the dynamic status quo to prohibit expired
terms in a collective bargaining agreement to be ignored;
2) Collective bargaining history, including previous bargaining
agreements and the parties' respective positions leading to the
current expired Agreement;
3) There is no inequity in applying step raises for total teaching
experience under RSU 38's salary plan;
4) Procedural and economic advantage of an employer who permits a
contract to expire negating salary increments which was already
bargained for after the MLRB has previously recognized such
factors as "a very real potential loss of income" and "an essential
part of the compensation package" to be critical issues;
5) Application of dynamic status quo to provisions analogous to
wages in expired agreements between the parties, including but
not limited to "horizontal movement on the salary schedule"
according to degree level and credit hours attained;
6) The budget and financial capacity of RSU 38;
7) The behavior of RSU 38 negotiators with respect to retroactivity
issues; and
8) The Collective Bargaining Agreement.
The School Board responds that an evidentiary hearing would serve no
purpose because the evidence the Association claims it would put forward has
no bearing on the MLRB' s status quo determination. The School Board argues
the only relevant evidence is the text of the expired Agreement, which is already
a part of the record.
The MLRB argues that it properly exercised its discretion in denying the
Association's evidentiary hearing given the limited role of the MLRB under 26
M.R.S.A. § 964-A(2). The MLRB also argues that because its determination was
grounded in the terms of the expired Agreement, an evidentiary hearing would
only have muddied the distinction between resolving a dispute about whether a
provision is enforceable under section 964-A(2) and ruling on the underlying
grievance. Further, MLRB argues an evidentiary hearing would blur the
distinction between processing a post-expiration grievance and a prohibited
practice complaint alleging a post-expiration unilateral change.
In support, MLRB explains that the statement in section 964-A(2) that the
MLRB does not have jurisdiction over grievances appealed to arbitration must be
read in light of the fact that the MLRB has never had jurisdiction over grievances
7
of any sort. Accordingly, the MLRB, exercising its agency expertise, interpreted
section 964-A(2) as precluding the MLRB from taking jurisdiction over a post-
expiration unilateral change case when a grievance on the same matter has been
appealed to arbitration and determined that an evidentiary hearing on a status
quo determination runs the risk of turning the inquiry into a post-expiration
unilateral change case. Record, Item 7, Interim Order, 2. Finally, the MLRB
argues that its analysis of its responsibility under section 964-A(2) is entitled to
considerable deference.
In its reply brief, the Association broadens and flushes out its argument
claiming that the MLRB denied it procedural due process by not having an
evidentiary hearing or established procedural rules regarding the status quo
determination. In support, the Association cites to Merrill v. Maine Public
Employees Retirement System, 2014 ME 100, -- A.3d ---.
In Merrill, the Law Court explained that "[p]rocedural due process
imposes constraints on governmental decisions which deprive individuals of
liberty or property interests within the meaning of the Due Process Clause of the
Fifth or Fourteenth Amendment." 2014 ME 100, <fi 21, --- A.3d --- (citation
omitted). Courts analyze procedural due process claims by utilizing a two-step
inquiry: 1) determine whether the government action has deprived the claimant
of a protected property interest; and 2) if so, what process is due pursuant to the
Fourteenth Amendment. !d. (citing McNaughton v. Kelsey, 1997 ME 182, <f[ 6, 698
A.2d 1049. "[The] dimensions [of a property interest] are defined by existing
rules or understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits." !d. (quoting Bd. of Regents of State Colis. v.
Roth, 408 U.S. 564, 577 (1972)).
In Merrill, the private interest was "the continued receipt of the benefit of
participating in the [Group Life Insurance] Program" which, for purposes of due
process, the Law Court determined was a statutorily created property interest.
!d. Merrill determined that when the MLRB determines whether a member or
retired member is required to make back payments of premiums for periods
during which no coverage was in effect, certain minimal procedural
requirements must be met in order to satisfy due process. !d.
In this case, the Association asserts the MLRB deprived the Association of
its interest in the continuation of the right to receive previously negotiated wages
after the expiration of a collective bargaining interest. In other words, the
Association is claiming a risk of erroneous deprivation of property due to the
MLRB' s refusal to create a factual record and hold an evidentiary hearing. The
Association does not offer any citations in support of this position. The Merrill
court explained that "due process is flexible and calls for such procedural
protections as the particular situation demands." 2014 ME 100 <fi 22, ---A.3d ---
(quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). "In determining what
process is due, we consider three factors: (1) the private interest that will be
affected by the State action; (2) the risk of an erroneous deprivation of the
property interest at issue; and (3) the Government's interest, including the
8
function involved and the administrative burden that additional or substitute
procedural requirements will entail." Id. (citing Balian v. Bd. of Licensure in Med.,
1999 ME 8, en 10, 722 A.2d 364).
Regarding the three factors Merrill determined:
1) The private interest was the possibility of the petitioner having to
pay several thousands of dollars in insurance premiums for a
product she never received in order to maintain coverage going
forward. /d. at~ 23.
2) Although the MLRB retains the discretion to decide whether to
waive insurance premium payments, "disclosing the standard that
the [MLRB] will use in making that decision will permit members
and retired members like the petitioner to intelligently present
evidence pertinent to MLRB's consideration, assist the MLRB in
making its decision, and enhance the court's ability to provide
effective appellate review. /d. at~ 24.
3) Requiring the MRLB to provide parties with notice of the criteria it
will consider in making its decision concerning waiver will not
impose an unnecessarily heavy administrative burden on the
MLRB. !d. at~ 25.
Accordingly, Merrill determined that "due process requires that, when
considering whether to waive required payments pursuant to section 17103(6),
the [MLRB] must do so by reference to a standard or standards that are made
known to the parties, enabling them to present relevant evidence. Otherwise, the
constitutional right to a hearing would be rendered meaningless." Id. at en 26.
Because the submission of briefs and oral arguments before the MLRB did not
provide the petitioner an "adequate opportunity to present evidence relevant to
the [MLRB's] criteria for evaluating whether to grant a waiver," on remand the
MLRB had to consider the merits of the petitioner's request for a waiver in light
of the standards it promulgates. Id. at en 27.
Here, the Association raises two distinct questions: 1) did the MLRB abuse
its discretion by denying an evidentiary hearing; and 2) did the MLRB deny the
Association procedural due process by not setting out rules regarding the
evidence to be considered. As to the first question, the Court grants the MLRB
considerable deference in its interpretation of MPELRL. Accordingly, the
MLRB' s determination that holding an evidentiary hearing on the status quo
determination ran the risk of turning the inquiry into a post-expiration unilateral
change case does not appear to be an abuse of discretion, at least to the
undersigned.
As to the second question, the Association has a private interest in not being
deprived of the benefit of its alleged contractual bargain. Further, the MLRB
does not appear to have any rules or implementing regulations regarding the
process parties receive when arguing a status quo determination. This is in
contrast to the MLRB's detailed rules regarding prohibited practice complaints.
9
Accordingly, it does not appear that it would be overly burdensome for the
MLRB to promulgate rules laying out the procedure for the status quo
determination. On the other hand, the present case is distinguishable from
Merrill in that the question of what evidence the MLRB may consider does not
impact the standard by which the MLRB will determine the status quo. The
Association argued in its brief dated 3/10/14 that "a full evidentiary hearing by
an expert tribunal ... " was necessary as well as that "the deciding tribunal be one
of impeccable credentials and not a management lawyer .... " The School Board
argued that none of the proffered evidence the Association was requesting a
hearing to present would be relevant to the MLRB' s determination as to whether
enforcement of the salary escalator clause after the contract expired would be
barred by the static quo doctrine except for the collective bargaining agreement
itself, which was already part of the record. The MLRB determined for reasons
stated in its "Interim Order Status Quo Determination" that conducting an
evidentiary hearing would be "inappropriate .... " Record, Item 7. It is difficult
for the undersigned to determine what other evidence the Board would have
found helpful in order to make a decision on the question raised. The MLRB
obviously determined that it had all the necessary and relevant evidence, and
thus simply directed the parties to submit briefs. The undersigned finds no
denial of due process by the Board's process. See City of Augusta v. Local 1650,
2012 WL 5450584 (Me. Super. Oct. 12, 2012).
Ill. Removal of Labor Board Chairperson and Briefing Schedule
Similar to the procedural due process argument about implementing rules
regarding the evidence to be considered in status quo determinations, the
Association's arguments about the briefing schedule and removal of the MLRB
Chairperson raise two distinct questions: 1) whether the MLRB's substantive
determinations should be upheld; and 2) whether the MLRB denied the
Association procedural due process by not setting out rules regarding recusal
and the briefing schedule.
Regarding the first question, neither of the Association's arguments are
persuasive. As discussed supra in Section I, the briefing schedule imposed
mirrored the briefing schedule commonly utilized in civil proceedings, i.e. a
petition, an opposition, and a reply to the opposition. Denying the Association a
sur-reply to the School Board's reply is not an abuse of discretion. Similarly, this
Court declines to find that the MLRB abused its discretion in refusing to recuse
7 Section 964-A states that an arbitrator may not add to, restrict or modify the applicable static status
quo ... unless the parties have otherwise agreed in the collective bargaining agreement. There is no
language that the Court can find in the agreement to support a contention that the parties have
"otherwise agreed" to apply the step increases after the agreement's expiration. Moreover, Article
24 of the agreement entitled "Duration of Agreement" states in part "This agreement shall not be
extended orally and it is expressly understood that it shall expire on the date indicated ... "
10
the Chairperson, Ms. Rand, simply because she is a partner in a law firm that
represents numerous employers.•
As to the second question, the MLRB does not have any rules guiding the
parties as to the procedure or standard for removing an allegedly biased
Chairperson or the briefing schedule in a status quo determination. Applying
the procedural due process test, the Association's private interest remains the
same, namely the private interest in not being deprived of the benefit of its
alleged contractual bargain. As to the briefing schedule and recusal procedure,
these issues appear less important than rules and regulations regarding the
evidence considered. Accordingly, the risk of an erroneous deprivation of
property is likely less regarding these issues. On the other hand, the MLRB
would not face a heavy burden in implementing rules establishing a briefing
schedule, or a process and standard for removing an allegedly biased
Chairperson. It might be prudent for the MLRB to consider for future matters
establishing some rules for more specific guidance when issues of this sort are
raised; however, the undersigned is satisfied on the record presented here that
there was no reason for the Chairperson to recuse herself, and that the briefing
schedule did not result in any due process violation.
IV. Conclusion:
The Court affirms and upholds the Board's determination in this matter.
The Clerk is directed to incorporate this Order by reference into the docket
for this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.
BY~~ (Ill
Date: December 11, 2014
R:>bert E. Mullen, Justice
Maine Superior Court
8 In point of fact counsel for the Association was complementary of the Chairperson's expertise
during oral argument and struck the Court as making a point he was not in fact alleging any bias on
the part of the Chairperson.
11
Date Filed 5/29/14 Kennebec Docket No. AP-14-38 F
County
Action: Petition for Review J. Mullen
80B
Maranacook Area School Association vs. RSU No. 38 School Board and
Maine Labor Relations Board
Plaintiff's Attorney Defendant's Attorney
Howard Reben, Esq. Lisa Copenhaver, Esq. (MLRB)
PO Box 7060 90 State House Station
Portland, ME 04112-7060 Augusta, ME 04333-0090
Bruce W. Smith, Esq. (RSU No. 38)
84 Marginal Way, Ste. 600
Portland, ME 04101
Date of Entry
5/30/14 Rule 80B Complaint, filed 5/29/14. s/Reben, Esq.
6/16/14 Letter entering appearance for Maine Labor Relations Board and indicating the Board
seeks affirmance of its 3/21/14 Status Quo Determination, filed. s/Copenhaver, Esq.
6/17/14 Entry of Appearance, filed. s/Smith, Esq.
6/23/14 Notice and Briefing Schedule issued.
Copy to Attys Reben, Copenhaver, Smith.
6/25/14 Acceptance of Service for R.S.U No. 38, filed (6/18/14). s/Reben, Esq.
6/25/14 Acceptance of Service for Maine Labor Relations Board, filed (6/18/14). s/Reben, Esq.
7/1/14 Record, filed 6/26/14. s/Copenhaver, Esq.
9/8/14 Oral Argument scheduled for October 10, 2014 at 10:00 a.m.
Notice to Attys Reben, Copenhaver, Smith
9/15/14 Brief of Petitioner, filed (8/1/14). s/Reben, Esq.
9/15/14 Brief of Respondent, filed (8/29/14). s/Copenhaver, Esq.
9/15/14 Brief of Respondent, filed (9/2/14). s/Smith, Esq.
9/15/14 Brief of Petitioner, filed. s/Reben, Esq.
10/27/14 Oral Argument, held (10/10/14).
Tape 1947 Index 810-2024.
Under advisement
Page 1 AP-14-38
12/11/14 ORDER OF COURT, Mullen, J.
The Court affirms and upholds the Board's determination in this matter.
Copy to Attys Reben, Copenhaver, Smith
Copy to repositories
12/11/14 Notice of removal of Record sent to Atty Copenhaver
Page 2 AP-14-38