MOUNTAIN VALLEY EDUCATION ASSOCIATION v. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 43 and Maine Labor Relations Board.
Supreme Judicial Court of Maine.
Decided March 2, 1995.
655 A.2d 348
Argued Nov. 15, 1994.
The Remand
Although Cormier individually has no legal authority to bind the owners and operators of Funtown, the after-the-fact permit was issued in his name. The stipulation, however, offered by Cormier‘s counsel at oral argument alleviates the need for further proceeding before the BEP. Both the owners of the real estate occupied by Funtown and the operators of the amusement park agree to be bound by our actions and those of the BEP.
Standing
The DEP will review an application for a permit only when the applicant has demonstrated “sufficient title, right or interest in all of the property which is proposed for development or use.” As we explained in Murray v. Town of Lincolnville, 462 A.2d 40, 43 (Me.1983), an “applicant for a license or permit to use property in certain ways must have ‘the kind of relationship to the site,’ that gives him a legally cognizable expectation of having the power to use that site in the ways that would be authorized by the permit or license he seeks.” (citing Walsh v. City of Brewer, 315 A.2d 200, 207 (Me.1974)).
We disagree with Southridge‘s contention that the record does not sufficiently demonstratе Cormier Landco‘s interest in the property. Funtown‘s septic system has existed on the disputed parcel for a long period of time. This long established business practice, unchallenged by Southridge for many years, provides sufficient evidence of interest to support the administrative determination that Cormier and the entities he represents had standing to seek the after-the-fact permit. See Murray, 462 A.2d at 43.
In Murray, we found that a purchase and sale agreement, conditioned upon the seller‘s acquisition of any necessary subdivision approval conferred on the purchaser sufficient interest in the property to have the rеquisite standing to petition the BEP for approval to build on the property. Murray, 462 A.2d at 43. We commented that “[t]he fact that the [purchasers] could opt out of the purchase in certain circumstances does not deprive them of standing, any more than the owner of property in fee simple could be said to lack standing because he has the right to sell his land at any time.” Murray, 462 A.2d at 43.
We fully acknowledge that it is possible that Cormier may not prevail in his adverse possession claim to the Southridge property. Should this happen, his permit might be revoked. This possibility, however, neither deprives Cormier and those he represents of their current interest in the land nor their administrative standing. We discern no substantive difference between the interest asserted in Murray and Cormier‘s asserted interest in the disputed property.
The entry is:
Judgment vacated. Remanded for entry of a judgment affirming the decision of the Board of Environmental Protection.
All concurring.
Harry R. Pringle (orally), Drummond, Woodsum, Plimpton & MacMahon, Portland, for defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
WATHEN, Chief Justice.
Mountain Valley Education Association (“the Association“) appeals from a judgment entered in the Superior Court (Kennebec County, Alexander, J.) affirming a decision of the Maine Labor Relations Board (“the Board“) upholding Maine School Administrative District No. 43‘s (“SAD 43“) unilateral implementation of its last best offer on wages and insurance. The principal issuеs on appeal are whether the Municipal Public Employees Labor Relations Law (“the Act“),
The facts as found by the Board may be briefly summarized as follows: The Association and SAD 43 began negotiations in June 1990 for an initial contract for the benefit of a combined unit of teacher aides and assistants.1 The negotiations were long and arduous, with the parties participating in three mediation sessions and in factfinding. Thereafter, the parties submitted several issues including wages, health insurance, and
In September of 1992, SAD 43 sent a proposal on wages and insurance to the Association. The terms were an improvement over those previously proposed by SAD 43 but not in complete accord with the arbitrators’ recommendations. The parties met, but the Associаtion rejected the offer and made counterproposals. In November of 1992, SAD 43 notified the Association of its last best offer on wages and insurance. The Association immediately filed for mediation. SAD 43 thereafter implemented its wage and insurance proposals.2
The Association filed a prohibited practice complaint with the Board alleging that SAD 43 violated the Act by unilaterally implementing its proposal on wages and insurance and by failing to observe the arbitrators’ binding determination on the duration of the agreement. The Board ruled that SAD 43 committed no violation of the Act by unilaterally imposing its wage and insurance proposals. It held that SAD 43 did violate the Act by refusing to implement the binding arbitration award on the duration of the agreement. The Association, pursuant to
I. Unilateral Implementation of Last Best Offer Following Impasse
We review the Board‘s decision directly, State v. Maine State Employees Ass‘n, 538 A.2d 755, 757 (Me.1988), for error of law, abuse of discretion, or clear error. See City of Bangor v. American Fed‘n of State, City, & Mun. Employees, 449 A.2d 1129, 1134, 1136-37 (Me.1982);
Maine law as well as federal law imposes the obligation to bargain in good faith as part of the statutory definition of collective bargaining.
In 1978, the Board adopted from federal labor law the impasse exception to the rule against unilateral change. Maine State Employees Ass‘n v. State, No. 78-23, at 4 (Me.L.R.B. July 15, 1978), aff‘d sub nom. State v. Maine Labor Relations Bd., 413 A.2d 510 (Me.1980). This exception allows a party to unilaterally implement its last best offer when negotiations have reached a bona fide impasse.3 See Litton, 501 U.S. at 198; McClatchy Newspapers, 964 F.2d at 1157, 1164-65; Easton, No. 79-14, at 4-5. Once the parties have in good faith exhausted the prospects of reaching an agreement, unilateral change that is reasonably comprehended within the pre-impasse proposals no longer violates the Act. After impasse, however, the duty to bargain is not extinguished. Rather it is temporarily suspended until changed cirсumstances indicate that the parties are no longer inalterably deadlocked. See Auburn Firefighters Ass‘n Local 797 v. City of Auburn, No. 89-01, at 23 (Me.L.R.B. March 31, 1989); see also McClatchy Newspapers, 964 F.2d at 1164-65.
Notwithstanding the similarities with federal law, Maine law differs in at least one respect—impasse cannot occur until specified forms of intervention have been exhausted. Public employees in Maine, unlike employees in the private sector, do not have the right to strike or engage in work stoppages,
The Association asked the Board to abandon the impasse exception and argues before us that the Act provides an alternative that is sufficient to resolve any impasse that remains after non-binding arbitration. The Association argues that the statute expressly
The Association next argues that a unilateral change, even if made after exhaustion of the statutory procedures, frustrates the Act‘s policy that “neither side shall be compelled to agree to a proрosal or be required to make a concession.”
The Board committed no error in ruling that SAD 43‘s unilateral implementation of its last best offer following impasse is not a prohibited circumvention or disparagement of thе employer‘s duty to bargain in good faith. Although the Act differs from the National Labor Relations Act in that it prohibits strikes and requires mandatory dispute resolution procedures, the federal impasse doctrine is not thereby rendered inapplicable. The definition of the outer limits of the duty to bargain in good faith requires neither the voluntary abandonment of control of the public fisc, nor bargaining in perpetuity. The Board properly resorted to the impasse doctrine in the present case. Although labor relations in the public sector differ from those in the private sector, there is nothing to suggest that the Legislature intended tо reject the impasse doctrine as a quid pro quo for the denial of the right to strike. The Board‘s long-standing reliance on the rule against unilateral change, and the impasse exception to that rule, constitutes a rational adaptation of private sector labor law and serves the goals set forth in the Act.
The Association argues that the Board‘s finding of impasse is not supported by substantial evidence on the record. The determination of impasse is predominantly a question of fact and therefore will be upheld unless clearly erroneous and unsupported by substantial evidence on the record. See
Contrary to the Association‘s assertions, the Board was not required to make express findings that further negotiations would be fruitless. The parties here had completed mediation, factfinding, and arbitration and there was no question as to good faith during that period. In finding that the parties reached impasse, the Board concluded that SAD 43 participated in further negotiation for a reasonable period of time after receiving the arbitration report. It rejected the Association‘s argument that SAD 43 violated its duty to bargain in good faith after arbitration by failing to respond to requests to bargain and by implementing its last best offer after it agreed to mediation. We find the Board‘s findings on impasse to be supported by substantial evidence on the record. Despite the fact that Maine law requires exhaustion of impasse resolution procedures prior to impasse, we agree with the federal courts that “[w]hether a bargaining impasse exists is a matter of judgment.” Taft Broadcasting Co., 163 N.L.R.B. 475, 478 (1967), petition for review denied sub nom. American Fed‘n of Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C.Cir.1968). “[I]n the complex realm of industrial relations ‘few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a board which deals constantly with such problems.‘” Saunders House, 719 F.2d at 688 (quoting Dallas General Drivers, W. & H., Local No. 745 v. NLRB, 355 F.2d 842, 844-45 (D.C.Cir.1966)).
III. Violation of Duty to Bargain
In its decision, the Board upheld SAD 43‘s implementation of its last best offer for wages and insurance, but also ordered SAD 43 to implement the binding interest arbitration award of a two-year duration of the contract.5 The Association contends that the Board should have first remedied SAD 43‘s refusal to bargain on this particular item and sent the parties back to the bargaining table before ruling on SAD 43‘s unilateral implementation of its last best offer. The Board has broad discretion to fashion remedies for violations of the Act. See, e.g., Sanford Highway Unit of Local 481 v. Town of Sanford, 411 A.2d 1010, 1015-17 (Me.1980). We find no abuse of discretion or error.
The entry is:
Judgment affirmed.
ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ., concurring.
LIPEZ, Justice, dissenting.
I must respectfully dissent because the Cоurt‘s decision, in my view, affirms a Board decision which comes perilously close to embracing the statutory impasse concept urged by SAD 43. According to SAD 43, if the parties have exhausted the impasse resolution procedures set forth in
Given the incompatibility of unilateral action by the employer with the сoncept of collective bargaining, and given the substantial advantage to the public employer inherent in the right to declare an impasse and unilaterally impose wage and insurance terms, the Court should insist that the Board apply the same rigorous standard to the finding of impasse that the Board applied in such cases as MSEA v. Bureau of Mental Retardation, No. 79-43 (Me.L.R.B. Dec. 6, 1979) and Sanford Firefighters v. Ackerman, No. 79-62 (Me.L.R.B. Dec. 5, 1979). The Board‘s application of a diluted impasse standard in this case will have the inevitable effect of compromising the effectiveness of the statutory impasse resolution procedures so critical to the Board‘s holding in Auburn Firefighters v. City of Auburn, No. 89-01 (Me.L.R.B. Mar. 31, 1989) that, absent extraordinary circumstances, the employer‘s implementation of a last best offer prior to the completion of requested impasse resolution procedures will constitute a per se violation of
Post-Arbitration Negotiations
The arbitrator‘s report was issued around July 9, 1992. That report made recommendations on wages, insurance and retirement payment, and made binding determinations on all other issues including a two year duration of agreement. The Association informed the superintendent of SAD 43 by letter dated August 17, 1992 that the educational technicians accepted the arbitrator‘s report by ratifying “their contract as negotiated and arbitrated...” and requested the Directors’ “status concerning the contract.” By correspondence dated September 15, 1992, SAD 43 sent to the Association a draft of the proposed collective bargaining agreement and a “last best proposal...” on wages, medical insurance, sick leave (retirement payment) and duration.
On September 28, 1992, the Association sent a ten day notice to Superintendent Richards to meet and negotiate the non-binding portions of the arbitrator‘s report. In a letter dated October 1, 1992, SAD 43 confirmed the date for a meeting between the parties. On October 13, 1992, the parties met to discuss the draft of the proposed contract and to discuss the Directors’ “last best offer.” The Directors did not make any firm proposals, but the Associatiоn made some counterproposals and the retirement payment issue was resolved. The Association also made several corrections and additions to the draft of the tentative agreement. Although the Association did not agree to SAD 43‘s last best proposal, the Association made a counterproposal which the negotiating team for SAD 43 agreed to present to the entire Board of the District. At the October 13, 1992 meeting the Association also informed SAD 43 that the duration of agreement was a binding determination.
After difficult and protracted negotiations that had begun in June 1990, most of the issues between the рarties had been resolved at this juncture in October 1992. On the critical issues of health insurance and wages, the differences between the two parties were as follows:
Association: Blue Cross Blue Shield Major Medical UCR would be printed into the contract and paid at 100% for current enrollees, paid at 100% for the individual premium for new enrollee; grandfather current “double dippers” on medical insurance and SAD 43‘s language for all new enrollees on “double dippers.”
SAD 43: Maine School Management Association Health Insurance Trust Plan III or a comparable plan, no “double dipping,” selection of a better plan or аdditional family coverage at employee‘s expense;
implement a section 125 to pay the premium difference; Board would contribute $144.12 per month for the individual coverage, $324.29 per month for 2 person coverage and $394.91 per month for family coverage; new enrollees $144.12 per month.
Association: Salary effective July 1, 1991—June 30, 1992, year 1 and .10 per hour more than SAD 43‘s proposal for year two.
SAD 43: Salary effective January 1, 1992—June 30, 1992, year 1 and .10 per hour less than the Association‘s proposal for year two.
By letter dated November 3, 1992, SAD 43 modified somewhat its last best proposal on health insurance by increasing the amounts the District would contribute for various coverages. At the same time, SAD 43 notified the Association that it would offer and implement its modified last best proposal on wages and insurance. It also stated that the duration of the contract would begin upon the execution of any agreement. In response to this communication, the Association immediately filed for mediation concerning wages, health insurance, and duration of agreement, and a mediation session was scheduled for January 21, 1993. On November 20, 1992, SAD 43 unilaterally implemented its wage proposal by including a wage increase in the employees’ paycheсks. SAD 43 implemented its insurance proposals effective December 1, 1992 by deducting payments from employees for insurance premiums, and ending premium payments for employees covered under a spouse‘s insurance plan.
In Sanford Firefighters v. Ackerman, No. 79-62 (Me.L.R.B. Dec. 5, 1979), the Board evaluated the employer‘s declaration of an impasse and found it deficient for the following reasons:
Substantial progress was being made; there were only three issues remaining to be resolved; and the parties expected to meet again on those issues after the fourth mediation session, as did the mediator. When Ackerman declared impasse he did so without consulting with the Association; he therefore could not, and admitted that he did not, know whether there was indeed a deadlock.
Sanford Firefighters Ass‘n, No. 79-62, at 9. Although the Board was addressing a claim of impasse prior to the exhaustion of the statutorily mandated impasse resolution procedures, I reject SAD 43‘s contention that the Board‘s approach to impasse in this pre-exhaustion setting is irrelevant to the claim of impasse here. The factors cited by the Board in the Sanford Firefighters case are all present here: (1) The parties were making progress in their post-arbitration negotiations. (2) Few issues remained to be resolved. (3) Thе parties had agreed to meet to attempt to resolve the outstanding issues. (4) The impasse was declared without consultation with the Association. These undisputed facts do not support a finding that the parties were hopelessly deadlocked and unwilling to compromise. They do not support a finding that any future negotiations would have been fruitless. They only support a finding that SAD 43 lost its patience and, in so doing, implemented its last best offer in a manner that impermissibly denigrated the bargaining agent.2 In these circumstances, I can only explain the Board‘s finding of an impasse by its unstated adoption of SAD 43‘s concept of statutоry impasse.3
SAD 43‘s Refusal to Bargain in Good Faith
The duty to negotiate in good faith includes the duty to participate in interest arbitration. As the Board notes in its decision, “[f]or that requirement to be meaningful, it must include the requirement to implement the arbitrator‘s binding determinations
Since the arbitrators’ award was issued, MSAD 43 has consistently ignored the duration-of-agreemеnt aspect of the award—making a “last best proposal” on duration in its September 15, 1992 letter to the Association (the offer being that the contract would be effective on the date of execution and expire on June 30, 1993); making the same “last best proposal” in its November 3rd letter; and including that last best proposal in a copy of the new contract mailed to the Association on November 28th. While the parties may agree to something other than what the interest arbitrators decided, neither party may unilaterally make changes in the award.
The refusal of SAD 43 to recognize its legal obligation to honоr the arbitrators’ decision on duration of contract, and the Association‘s strenuous objection to this refusal, unmistakably contributed to the inability of the parties to resolve their differences during the post-arbitration period. The Board abused its discretion when it concluded that there was an impasse justifying the unilateral implementation by the employer of wage and insurance provisions when the difficulty in resolving the outstanding issues was the result, in part, of unlawful action by the employer. As one commentator has noted: “The impasse exception to the unilateral action proscription goes hand in hand with good faith. Absеnt good faith bargaining there can be no impasse.”4 Again, I can explain the Board‘s indulgence of SAD 43‘s unilateral action despite a violation of the duty to bargain in good faith only because the violation occurred after the exhaustion of the mandated impasse resolution procedures. This position of the Board comes perilously close to an acceptance of the statutory impasse doctrine.
For the reasons stated, I would vacate the decision of the Superior Court and direct the court to enter an order vacating the order of the Board dismissing the Association‘s prohibited practice complaint and remanding the matter to the Board with instructions to issue an order rescinding the unilateral actions of SAD 43 and ordering them to cease and desist from further unilateral changes.
Richard L. RHODA
v.
Albert FITZPATRICK, et al.
Supreme Judicial Court of Maine.
Submitted on Briefs Jan. 27, 1995.
Decided March 8, 1995.
Notes
For aides, [SAD 43] proposed a step increase plan and two across-the-board increases; the first was higher than the arbitrators had recommended, but for a shorter time period (6 months of retroactivity rather than a year). For the second year of the contract, it offered the across-the-board increase that the arbitrators had recommended. For assistants, who had not been on a step increase plan, the employer offered a step increase plan retroactive for six months, rather than the one year that the arbitrators had recommended. The employer did not accept the recommendation for an across-the-board increase for the second year, but offered a 2 percent raise for any assistant not eligible for a step increase.
While it did not adopt the arbitrators’ recommendation on health insurance, it did make some changes in its previous offer. It increased the caps (premium amounts to be рaid by the employer) for single and two-person coverage (but reduced the cap for family coverage); and it offered to contribute to a higher-coverage plan than it had offered previously.
See Auburn Firefighters v. City of Auburn, No. 89-01, at 23 (Me.L.R.B. Mar. 31, 1989).