Opinion

Maranacook Area School Assn v. R.S.U. No. 38 School Board

Court
Superior Court of Maine
Filed
Dec 11, 2014
Status
Unpublished
On the bench
Robert E. Mullen
Cited by
0 cases
Authority
More cited than 34.2%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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