STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 05-07
                                      Issued:  October 12, 2005

__________________________________
                                  )
MSAD #46 Education Association/   )
MEA/NEA,                          )
                                  )      
                    Complainant,  )    
                                  )          
     v.                           )      DECISION AND ORDER
                                  )         
MSAD #46 Board of Directors,      )     
                                  )
                    Respondent.   )
__________________________________)
                                   
     On November 24, 2004, the MSAD #46 Education Association
("Association") filed a complaint alleging the MSAD #46 Board 
of Directors ("Board" or "Employer") refused to bargain in
violation of 964(1)(E) and (A) by its conduct in negotiating
under a reopener provision.  The Board filed its response on  
December 13, 2004.  The questions presented in this case are
whether the Employer had a statutory duty to bargain, whether the
Employer failed to bargain in good faith, and whether a zipper
clause is a mandatory or permissive subject of bargaining.

                      PROCEDURAL BACKGROUND

     In its response to the complaint, the Employer asserted
numerous affirmative defenses including estoppel and waiver.  
On December 16, 2004, the executive director of the Maine Labor
Relations Board ("Labor Board") dismissed the complaint on the
ground that the Association had waived the statutory right to
demand mid-term bargaining and therefore the Employer had no duty
to bargain.  The Association filed its appeal of the executive
director's dismissal on January 14, 2005.  The Labor Board
considered the Association's appeal on February 3, 2005, and,
after considering the briefs of the parties, concluded that the
complaint should be reinstated.  A prehearing conference was

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conducted by Labor Board Chair Peter T. Dawson on March 21, 2005,
and the evidentiary hearing was held on May 4, 2005.  The MSAD
#46 Education Association was represented by Joseph A. Stupak,
Jr., and the MSAD #46 Board of Directors was represented by S.
Campbell Badger, Esq.  Chair Dawson presided over the hearing,
with Employer Representative Karl Dornish, Jr., and Employee
Representative Robert L. Piccone.  The parties were given full
opportunity to examine and cross-examine witnesses and to intro-
duce documentary evidence.  Briefs were filed by all parties, the
last of which was received on July 8, 2005.  The Labor Board
deliberated this matter on August 3, 2005.   

                              JURISDICTION

     The MSAD #46 Board of Directors is a public employer within
the meaning of 26 M.R.S.A. 962(7) and the MSAD #46 Education
Association is a bargaining agent within the meaning of 26
M.R.S.A. 962(2) at all times relevant to this complaint.  The
jurisdiction of the Board to render a decision and order lies in
26 M.R.S.A. 968(5).    

                         FINDINGS OF FACT

1.   The MSAD #46 Education Association represents the teachers'
     bargaining unit and has had a bargaining relationship with
     the Employer, the MSAD #46 Board of Directors, for many
     years.  
2.   The complainant's first witness, Mr. Ted Nokes, was a member
     of the negotiating team during the period in question and
     became the Association's chief negotiator in the fall of
     2004.  The Association's second witness, Ms. Sharon Imbert,
     was formerly the Association's president and was the
     Association's note taker for the entire period.  Both
     witnesses stated that they would need to rely on the written
     notes to recall details and dates of the meetings, most of 

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     which were held two to three years prior to the Labor Board
     hearing.
3.   The chief negotiator for the Board of Directors, Mr. Arthur
     Jette, had been a member of the Board since 1995.  Mr. Jette
     had previously served as an officer and negotiator for the
     Machinists Union Local Lodge 1696 at White Consolidated
     Industries and its successor for over 25 years.  Mr. Jette
     also stated that he needed to rely on the negotiating notes
     to recall details and dates of meetings.
4.   In the mid-1990's, the voters in the school district had
     rejected the school budget referenda seven times.  Mr. Jette
     stated that there was a citizen panel created that gave a
     list of recommendations to the Board of Directors through
     its chair which included the dismantling of the entire
     health and dental insurance plans.  The Board chose not to
     take that route and instead embarked on a cost share so that
     the Board would not continue to be paying 100 percent of
     health insurance premiums.  The stated target was to have
     employees pay 20 percent of the premium.  This decision was
     based on actuarial studies showing that when people are
     asked to contribute 20 percent they start making different
     choices about what plan they purchase. 
5.   In the 1996 negotiations, the Board stated its goal of
     achieving an 80/20 premium cost share.  The result of the
     1996 negotiations was that the cost share moved to 90/10. 
     Again in 1999, the Board stated its goal of an 80/20 cost
     share but was unsuccessful.  There was a provision in the
     1999-2002 collective bargaining agreement that if in any
     year the increase in cost of health insurance exceeded 10
     percent, the parties would meet and decide whether or not to
     share the amount of the increase exceeding 10 percent.  As a
     result of that provision, when the parties were negotiating 

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     the successor agreement to cover 2002-2005, the Board was
     paying 87 percent of the premium and the employees were
     paying 13 percent.
6.   The 1999-2002 collective bargaining agreement reflected the
     fact that employees were offered two choices of health
     insurance plans.  The premium cost share was based on the
     more expensive of the two plans offered, and that dollar
     amount was contributed toward the less expensive option for
     those employees choosing that plan.  
7.   The Board and the Association successfully completed a round
     of interest-based negotiations in 1996 and again in 1999. 
     Mr. Jette and the chief negotiator for the union at the
     time, Mr. Fred Cookson, decided to continue the same process
     for the 2002 negotiations, and worked together to bring the
     other team members up to speed on the process through
     workshops.  Interest-based negotiations is a problem-solving
     approach to negotiations where the parties identify issues
     and interests and brainstorm possible solutions to those
     problems.  In some respects, interest-based bargaining
     involves putting all of one's cards on the table at the
     outset rather than holding them close to the vest for
     tactical advantage, as is often done in traditional
     bargaining.
8.   Mr. Jette and the superintendent met with the Board of
     Directors three or four times prior to the start of
     negotiations to discuss issues like comparative salaries. 
     Mr. Jette testified that he was directed by the Board to
     hold the combined costs of salaries and health insurance
     from increasing more than 5 percent.  With respect to the
     sharing of costs for the health insurance premiums, 
     Mr. Jette said the Board's goal was to have an 80/20 cost
     sharing agreement, as they had with the other bargaining 

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     units.  From the start, the Board did not want to consider
     salaries and health insurance separately, but as two
     connected items.

NEGOTIATIONS FOR 2002-2005 COLLECTIVE BARGAINING AGREEMENT

9.   At the parties' initial meeting on February 8, 2002, they
     established their negotiating ground rules and standards for
     negotiations.  Each side's notes of this session indicated
     that one of the ground rules was "In writing as soon as
     possible."  Although not specified in the ground rules, the
     practice during negotiations was for the superintendent to
     prepare notes of each meeting and distribute them to both
     teams for review at the start of the next meeting.
10.  After settling on ground rules and standards on February 8, 
     the parties went on to identify issues and the various
     interests affected by those issues.  During the first three
     or four negotiating sessions in February and March of 2002,
     the parties brainstormed potential solutions to those issues
     and problems.  As those issues were discussed, some items
     were "TA'd," others were "OK'd,"[fn]1 and other items were
     tabled for consideration later.  By mid-March, the parties
     had TA'd or OK'd a large majority of the two dozen or so
     issues identified.
11.  The zipper clause in the preceding collective bargaining
     agreement is part of Article III, which stated:
     
          ARTICLE III         GROUND RULES

     A.  The Board agrees to begin negotiations with the
     Association in executive session pursuant to State of 
____________________

     1 To "TA" means to come to a tentative agreement. To "OK" means
that the parties agreed that a provision in the contract was not
necessary or appropriate.

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     Maine Public Law under Chapter 424.  Any agreement so
     negotiated and ratified by both parties shall apply to 
	 all teachers, be reduced to writing, be adopted by the 
     Board, and signed by the Board and the Association.  
     The parties hereto agree that the signed agreement 
     shall be accepted as written notice for collective 
     bargaining in the future fiscal years as stipulated 
     under State of Maine Public Law Chapter 9-A, Title 26.

     B.  This Agreement incorporates the entire under-
     standing of the parties on all matters which were or
     could have been the subject of negotiations.  During
     the term of the Agreement, neither party shall be
     required to negotiate with respect to any such matter
     whether or not covered by this Agreement and whether or 
     not within the knowledge or contemplation of either or
     both of the parties at the time they negotiated or
     executed this Agreement.
                                        
12.  With respect to the zipper clause, the Association's notes
     from the March 11, 2002, negotiating session state:
  
          Article 3B-Zipper Clause. Is this needed?- What purpose
          does it serve?  Interests - 1.  Contrary to interest-
          based bargaining (meetings for understanding & problem
          solving throughout term of agreement);  2. What are
          legal ramifications of Article 3A.  Hold for legal
          advice 5:50 pm.                                 
          Article 3A - eliminate?  How does this affect the
          Board's right to bargain with us?  If we eliminate, do
          they need to bargain or just mandate? . . . Does
          removing zipper clause open up whole contract??

13.  The Employer's notes for the March 11, 2002, negotiating
     session regarding the zipper clause state:                

          Is this needed? What purpose does it serve?
          Interests- Doesn't fit the current practices (i.e.
          meetings for understanding and problem solving
          throughout term of agreement).  What are legal
          ramifications of Articles 3A and 3B. 
          It was agreed to put issue on hold at 5:45 PM.

14.  The Employer's notes for the March 19, 2002, session state:

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          Association stated that they had researched this item
          and determined that both 3A and 3B could legally be
          removed from the contract.  Board stated that they were
          not ready to remove article from contract because the
          zipper clause in effect closes items negotiated in the
          contract and that one side can not force the other side
          to open them before the end of the contract.

15.  The Association's notes for the March 19, 2002, session
     state:
               Fred [Cookson] it's okay to remove 3A - no legal
          ramification.
               Art [Jette] - "board" not prepared to remove 3B -
          haven't discussed the ramifications of removal with the
          rest of the Board.

16.  On March 19, 2002, the parties first discussed health
     insurance, identified as Issue #25.  They identified 
     interests and brainstormed options.  The options listed on
     the Association's notes were:

          100% coverage Choice plus up to (& including) family
          Maintain what we have 90% Dist./10% teacher cost share
          80% Dist/20% of current plan
          Different ins. provider and cost share
          Salary in lieu of
          Modify 125 plan to increase benefits
          Cap districts participation

     The Employer's notes of the options listed was essentially
     the same, but also included "% increase health and salary
     combined."  The parties discussed cost comparisons between
     Anthem Standard plan, Anthem Choice Plus, and a couple of
     plans offered by Aetna.
17.  At the March 27, 2002, negotiating session, after consider-
     ing more information on insurance cost comparisons, the
     Association indicated that Anthem was its carrier of choice. 
     Mr. Jette shared with the Association that he had the
     Board's authority to negotiate a combined salary and health
     insurance increase of up to 5 percent.  He said the Board 

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     wanted to emphasize salaries more than health insurance, as
     some other benefits were based on earnings and there is
     favorable tax treatment of premium contributions.  The
     Employer's proposal of an 80/20 premium cost sharing was
     presented for consideration.  Various cost projections were
     handed out based on projected insurance increases of 20
     percent and 25 percent.       
18.  At the April 3, 2002, meeting, the Association made a wage
     proposal to add $1,000 to base salaries in each of the first
     two years, to increase salaries by 3 percent in the third
     year, and to add a step to the flat step 13 in the second
     year and to the flat step 15 in the third year.  There are
     no Association notes for the April 3, 2002, meeting and no
     indication that this proposal was made in writing.  The
     Employer's notes for the April 3, 2002, meeting indicate
     that Sharon Imbert, the Association's note taker, was
     present. 
19.  At the next meeting on April 17, 2002, Mr. Jette reported
     that the Association's salary proposal alone resulted in a 4
     percent increase.  He indicated that to keep within the 5
     percent figure, the health insurance would have to be a
     75/25 cost share.  The Board made a one-year proposal of a
     3.5 percent salary increase with a health insurance cost
     share of 80/20 based on a projected premium increase of 18
     percent.  After caucusing, the Association responded that
     while the 3.5 percent increase to salary was possible, they
     were not comfortable trying to sell the 80/20 cost share to
     their membership.  When the Board stated that they could not
     go above an aggregate increase of 5 percent, the Association
     caucused again and said they would present just the salary
     and health proposal to their members to get some reactions.
20.  At the May 2, 2002, meeting, the Association again stated 

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     that they needed to get some feedback from their membership.
     The Association indicated they could not move from the 87/13
     cost share then in effect.  Mr. Jette stated that the Board
     was adamant about staying within the 5 percent aggregate
     increase.
21.  During the June 6, 2002, meeting, the Association's chief
     negotiator stated that the members were not interested in a
     5 percent cap and they viewed insurance and salary     
     separately and did not like them lumped together.  After
     caucusing, Mr. Jette said their offer already went beyond
     the 5 percent increase set by the Board.  The Board's
     position was that the two items had to be considered
     together.  The parties agreed to switch to traditional
     bargaining at this point. 
22.  On June 17, 2002, the Association proposed a two-tiered
     health insurance plan with an employer contribution of 90,
     87 and 85 percent of the Standard plan for current employees
     over the three years and 90, 87 and 85 percent of the Choice
     Plus plan (a less expensive plan) for new employees.  The
     proposal called for base salary increases of 3 1/4 percent, 3
     percent and 3 percent over the three years, removing the
     flat step at step 13 in the second year and removing the
     flat step at step 15 in the third year by adding the
     standard step increment at these steps.  The Board received
     the proposal and said they would review it, do some "number
     crunching," and return with a three-year proposal at the
     next meeting.
23.  On June 20, 2002, the Board said they would not accept the
     Association's proposal of June 17.  The Board presented a
     two-year proposal with a 2.6 percent salary increase
     contingent on a 85/15 cost share of the Standard plan in
     2002-2003, and a 1.6 percent salary increase contingent on a
     
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     80/20 cost share of the Standard plan in 2003-2004.  The
     Association argued in support of its own proposal saying
     that it represented a substantial savings because one of the
     tiers was based on Choice Plus.  The Association argued that
     the district is moving from being one of the highest to one
     of the lowest compared to other school districts.  The Board
     argued that Dexter is the twelfth poorest town in Maine and
     that the average salary is $26,000.  The Association
     observed that the Board had not moved off its 5 percent
     increase limit, but had merely shuffled costs around.
24.  At the next meeting on July 2, 2002, the Association's
     negotiators did not present a counterproposal because they
     had thought the Board was going to bring them a different
     proposal.  The Board presented comparisons with SAD 48, to
     which the Association responded SAD 64 was a better
     comparison.  The Association asked for a three-year proposal
     and agreed that the Board should use a 20 percent premium
     projection for each of two succeeding years. 
25.  On July 30, 2002, the Board presented a three-year proposal: 
     a 2.6 percent salary increase with an 85/15 insurance cost
     share the first year; a 2.0 percent salary increase for each
     of the next two years with the cost share of 82.5/17.5 in
     the second year and 80/20 in the third year.  The insurance
     figures were all based on the Anthem Standard plan.  The
     Board also provided comparisons with five other SADs and
     noted that SAD 46 was at or near the top.  The Association
     reiterated its goals of achieving a base salary of $25,000
     by the third year and getting rid of flat steps.  The
     Association stated that the 80 percent cost share was do-
     able but getting there in three years was too fast.  
26.  On August 14, 2002, the Association presented a counter-
     proposal of a cost share of 87/13 with a 2.6 percent salary 

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     increase for the first year, then 85/15 and 80/20 of the
     Standard plan for the second and third years with 3 percent
     in both of those years.  The Association's proposal also
     added a full step at step 13.  
27.  The Board countered with an 84/16 cost share in year two and
     a 2 percent increase to base salaries in years two and
     three.  The Board would change step 22 to a full step and
     increase the rest of the scale accordingly.  The Association
     caucused and then said 84/16 was acceptable for the second
     year but the 2 percent was not acceptable.  They wanted a
     base salary of $25,000 by the contract end and to take out
     one of the lower flat steps.  The parties decided they would
     go to mediation.
28.  Following this meeting, the two chief negotiators, Art Jette
     and Fred Cookson, had informal discussions about signing a
     three-year agreement with just the first year of the salary
     and health insurance issues settled.  They would continue
     bargaining on those two issues for the second and third year
     of the contract as well as two other unsettled issues, the
     zipper clause and hard-to-fill positions.    
29.  On August 27, 2002, the parties met to work out an agreement
     covering all the items that had been tentatively agreed upon
     and the first year only for salary and health insurance. 
     The suggested language for the reopener was: 

          It is the intent of the parties to reopen
          negotiations in November or December 2002 for the
          purpose of negotiating salaries, health insurance,
          zipper clause, and hard to fill teaching positions
          for the second and third years of the agreement.

     The Association wanted to have Joe Stupak, MEA's Director of
     Research and Collective Bargaining, review the language.  At
     the final meeting on September 3, 2002, that original
     sentence remained essentially the same and a new sentence 

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     was added, stating, "If agreement is not reached, the normal
     procedures of impasse by state statute is open to either
     side."  There was no discussion of the meaning of the
     reopener or the purpose of this additional sentence nor was
     there any specific mention of "preserving" statutory rights. 
     The parties both understood that they were agreeing to
     reopen negotiations to address the four unresolved issues
     for the second and third years of the agreement, while still
     having the benefit of having a collective bargaining
     agreement for all other issues.
30.  The full language of the Addendum to the 2002-2005 contract
     states:
        
          MSAD #46 Board of Directors and the MSAD #46
          Education Association will reopen negotiations of
          the MSAD #46 2002-2005 Comprehensive Teachers'
          Contract in November or December of 2002 for the
          purposes of negotiating salaries, health
          insurance, zipper clause and hard to fill teaching
          positions for the second and third years.  If
          agreement is not reached, the normal procedures of
          impasse by state statute is open to either side.

31.  The MSAD #46 2002-2005 collective bargaining agreement,
     signed on September 12, 2002, established a wage increase of
     2.6 percent for that contract year.  The Health Insurance
     Article said, in relevant part:

          The Board shall pay 87% (2002-2003), __% (2003-
          2004), __% (2004-2005) of the premium for each
          teacher, up to a full family coverage, for MEA
          Benefits Trust Standard Plan (Blue Cross/Blue
          Shield) coverage, including the plus 19 coverage. 
          Any teacher may at the teacher's option, elect to
          participate in the MEA Benefits Trust Choice Plus
          Plan, in which case, the teacher's cost shall be
          limited to the difference between the Board's
          payment of 87% (2002-2003), __% (2003-2004) __%
          (2004-2005) of Standard Plan premiums and the cost
          of the Choice Plus Plan.      
          
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32.  The 2002-2005 collective bargaining agreement is 36 pages
     long and contains 18 articles, covering such things as
     insurance (life, health, dental), payroll deductions, leave
     (six kinds), teacher year, teacher day, teacher lunch
     period, travel reimbursement, teacher resignation, job
     notification, reassignment, school calendar, just cause, a
     five-page provision on seniority, layoff and recall, a five-
     page grievance procedure, and various provisions on teacher
     evaluation, pupil evaluation, and salary issues.

NEGOTIATIONS PURSUANT TO REOPENER PROVISION

33.  The parties first met pursuant to the reopener provision on
     December 19, 2002.  At this meeting, they agreed upon ground
     rules for the negotiations and agreed that they should use
     an assumption of a 20 percent increase in health insurance
     premium costs for both years under discussion.  The
     Employer's notes described one of the ground rules agreed
     upon as, "Any actual proposal made must be made through the
     chief negotiators and in writing."  The Association's notes
     broke this into two ground rules:  "1. Any actual proposal
     must go through the chief negotiators.  2. Any proposal
     should be written down."
34.  At the next meeting on February 6, 2003, the Association
     suggested that 18 percent would be a more appropriate
     projection of the increase in premium costs for the coming
     year (the second year of the contract) and 20 percent for
     third year.  The Board agreed to that change.  The Associa-
     tion presented a proposal and said it was the same as where
     they left off in the fall:  a cost share of 85/15 in year
     two and 80/20 in year three; a 3 percent salary increase for
     each of the two years, and eliminating the flat step at step
     13 by adding a 1/2 step in year two and another 1/2 step to step
     
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     13 in year three.  The Association's notes of this meeting
     indicated that they passed out an insurance proposal and a
     salary proposal at this meeting, but there is no copy of
     either of these proposals in the record.
35.  On March 19, 2003, Mr. Jette stated that the Board was
     pleased that the teachers were beginning negotiations where
     they left off in the fall.  The Board presented a counter-
     proposal of a 3 percent wage increase for both years, adding
     a  step to Step 13 in the third year with a 80/20 cost
     share for both years.  When Mr. Jette presented this
     proposal, he said the Board was "bringing out our best
     proposal tonight   doesn't mean it is an ultimatum - just
     wanted to be close to where we need to be."  The Board also
     indicated that they did not want to remove the zipper clause
     from the current contract and that the hard-to-fill
     positions were no longer an issue they wanted to pursue. 
     Neither party's notes of this session or the next session
     contain any express reference to the employer switching from
     the Standard plan to the Choice Plus plan as the basis for
     calculating the 80/20 cost sharing.  After caucusing, the
     Association responded that some people would be initially
     taking a negative increase after factoring in the increased
     employee contribution to the health insurance. 
36.  Mr. Jette testified that the employer raised the salary
     increase to 3 percent and started using Choice Plus as the
     basis for calculating the cost share at the same time and
     that this change was first made at the April 14, 2003,
     session.  Mr. Nokes, a member of the Association's
     negotiating team and later its chief negotiator, testified
     that the Employer started using Choice Plus on March 19,
     2003. 
37.  The Employer's addition of a 1/2 step at step 13 in the final
 
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     year was not discussed at this meeting.  The salary chart
     distributed as the salary proposal adds the 1/2 step at step
     13, with the result that step 13 is halfway between step 12
     and step 14. 
38.  At the next meeting on March 26, 2003, the Association
     negotiators stated that they had not had a chance to meet
     and needed to caucus to discuss the Board's proposal of
     March 19, 2003.  Upon return, they observed that under the
     Board's proposal, most people would see a pay decrease, then
     recover somewhat from the initial drop, but it would be a
     minor increase to most.  The Association shared sample cases
     showing how some employees suffered a decrease in salary
     when the insurance cost was taken into account.  The Asso-
     ciation ran the figures based on the Board's proposal and
     explained how they got them and what effect they had on
     staff.  These sample cases were not part of either party's
     notes of the meetings and were not otherwise made part of
     the record.  
39.  During this March 26 meeting, the Association stated that
     they did not have a counterproposal, but wanted to think
     about a two-tiered plan in which current employees stay in
     the Standard plan and new employees have Choice Plus, or the
     option of having 100 percent of employee coverage with a
     greater contribution for dependent coverage.  The Employer's
     notes for this portion of the discussion also indicated the
     Association wanted to look at "No change in the salary
     schedule."  Their notes described the two-tiered insurance
     plan the Association was going to look at as "Those hired
     before June 2003 continue with the Standard Plan (85/15 -
     80/20).  Those hired after June 2003 Choice Plus Plan 
     (80/20 - 80/20)."  There was no discussion of the change to
     step 13 at this meeting.  The Association did not present a 

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     counterproposal at this time.

40.  There are no Association notes for April 14, 2003.[fn]2  The 
     Employer's notes for the April 14, 2003, meeting indicate
     that Sharon Imbert, the Association's note taker, was
     present.  On that date, the Association presented a counter-
     proposal to the Board's March 19, 2003, proposal.  The 
     Association's counterproposal included a 3 percent salary
     increase in year two, a 3 percent salary increase in year
     three with a 1/2 step added to step 13 for year year, and a
     health insurance cost share of 87/13 of the Choice Plus plan
     for both years.  After caucusing, Mr. Jette stated that the
     Association's counterproposal of 87 percent of Choice Plus
     was 7 percent higher than the Board's proposal.  The Board
     then presented a counterproposal with the same wage proposal
     and the cost share of 87/13 of the Choice Plus plan in the
     second year and with a cost share of 80/20 of Choice Plus
     plan for the third year.  The Board's counterproposal also
     included an added 1/2 step at Step 13.  There is no evidence
     that either of these proposals were made in writing.
41.  At the next meeting on April 29, 2003, the Association
     raised for the first time the subject of how the added 1/2
     step affected the salary scale.  The Association's notes
     indicate that they pointed out that the Employer made the
     new step 13 halfway between step 12 and 14.  The Association
     had intended that the 1/2 step amount ($625) that was added to
     Step 13 also be added to all the steps in the scale above 
____________________

     2 The Association's notes for the period between March 26 and 
June 9, 2003, are all undated.  C-33 and C-34 cover the meetings of
April 29, 2003, and May 14, 2003.  The parties' Joint Memorandum on
Exhibits submitted to the Board prior to the hearing indicates,
without explanation, that there are no Association notes for the
April 14, 2003, meeting.

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     Step 13 (up to Step 24).  Thus, step 14 would be a full step
     higher than the new step 13, and each step after that would
     retain its step increment.  A substantial majority of the
     teachers in the unit are experienced teachers at step 13 or
     higher.
42.  At the April 29 meeting, the Association's negotiators also
     reported back on the direction they had received from their
     membership.  They said that most teachers would reluctantly
     go to 87/13 of Choice Plus for '03-'04 but they did not want
     any individual teacher to end up with a net decrease.  The
     Association mentioned the possibility of a one-time adjust-
     ment for the six teachers negatively affected.  For '04-'05,
     the teachers did not want to move away from the 87/13 cost
     share, felt no one should take a decrease, and they wanted
     the 1/2 step at step 13 as proposed by the Association.  
43.  By the April 29 meeting, the parties had learned that the
     actual insurance premium increase for the year beginning
     that coming September was 9.9 percent, well below the
     parties' working assumption of 18 percent.  According to the
     Association's notes of that meeting, this resulted in a cost
     to the Employer that was $54,800 less than anticipated.  The
     Association was concerned that these reduced costs were not
     being factored in.  There is no evidence in the record that
     the Association made any proposal to redirect these savings,
     either at this meeting or the next.  The Association also
     complained about the big change in insurance from what the
     teachers were used to.  Mr. Jette said that the Employer's
     decision to move to Choice Plus was based on the number of
     teachers already in it and that they seemed to like the
     plan. 
44.  At the next meeting on May 14, 2003, the Board's proposal
     contained a provision reallocating to salaries any cost 

                               -17-
_________________________________________________________________

     savings in insurance for '04-'05 if the cost increase ended
     up being lower than the parties' 20 percent assumption.  The
     Board said it would be willing to have the parties agree on
     how the insurance savings in '04-'05 would be applied to
     employee salary.  The Board's salary proposal was a straight
     3 percent increase to base in each year, and did not include
     any sort of step adjustment.
45.  Mr. Jette testified that the Association took the package
     back to members for a ratification vote but the negotiating
     committee was not going to speak for or against it.
46.  At the June 9, 2003, meeting, the Association reported that
     the membership rejected the package by an 85 percent to 15
     percent vote.  After some discussion, it became apparent to
     the parties that they needed to move to the impasse
     resolution process.  The parties decided that they should
     submit a joint request for mediation and try to get their
     differences resolved quickly.  The chief negotiator for the
     Association identified the following issues as "still on the
     table:  1) Zipper clause, 2) 1/2 step at 13,  3) 3% to base
     @yr., 4) 2 yr. Proposal, 5) 87% of Choice Plus 87-13 split,
     6) include retroactivity - to beginning of next contract
     year."  The Association's notes of this meeting indicated
     that Mr. Jette stated, "Any settlement issues would be
     retroactive including the insurance."  "Our last offer was
     all inclusive . . .  Our position is all inclusive to the
     May 13 proposal as presented to the Association."
47.  There were lengthy mediation sessions held on October 6,
     October 20 and November 20, 2003.  The Employer prepared
     several proposals or concepts for different approaches for
     the mediator to work with.  Mediation was not successful and
     the parties filed a joint request for fact-finding on
     November 21, 2003. 

                               -18-
_________________________________________________________________

48.  The fact-finding hearing occurred on May 27, 2004.  The
     parties filed pre-hearing briefs about five days prior to
     the hearing pursuant to the panel's rules.  
49.  The Association's pre-hearing brief to the fact-finding
     panel identified the following issues:  the amount and
     effective date of a salary increase, the elimination of a
     flat step at step 13, the health insurance cost share
     percentages and the plan on which that percentage is
     calculated, and the elimination of the zipper clause.[fn]3  The 
     Association's position was to eliminate the flat step 13 by
     adding a half step in each of the two years.  With respect 
     to the insurance issue, the Association was proposing that 
     the Board continue paying 87 percent based on the more 
     expensive Standard plan until the parties were able to 
     execute an amendment to the collective bargaining agreement 
     pursuant to the reopener provision.  At the time the 
     amendment was executed, the 87 percent would be calculated 
     based on the Choice Plus plan.    
50.  The Association's brief was signed by Laurie Haapanen, an
     MEA Uniserv Director, and Joseph Stupak, MEA's Director of
     Collective Bargaining.  In addition to laying out the
     Association's positions on the subjects, they made two
     assertions about the Board's position:  first, that the
     Board had agreed to pay 87/13 based on the Standard plan for
     the duration of the second year of the contract and, second,
     that the Board had agreed to make salary increases
     retroactive.  The wording the Association used in its brief
     was, "While written tentative agreements have not been
     executed, the only salary issue about which the parties have
____________________

     3 The issue of the zipper clause being a permissive subject of
bargaining was not mentioned in the Association's pre-fact-finding
brief and was never raised during negotiations.

                               -19-
_________________________________________________________________

     different positions is the elimination of the 'dead zone'"
     [i.e., the flat step] and "the Association understands the
     Board's proposal to be a 3 percent increase to the salary
     scale retroactive to the beginning of the 2003-2004 contract
     year."  With respect to the insurance issue, the Association
     wrote, "Although written tentative agreements have not been
     executed, the only health insurance issue about which the
     Association understands the parties have different positions
     relates to the percentages of premiums that the Board will
     contribute on behalf of each employee for the last year
     covered by the mid-term bargaining provision" and "the
     Association understands that the Board has modified [its]
     position so that [the shift to Choice Plus] would not be
     retroactive for 2003-2004."   
51.  The Employer stated in the body of the brief simply that
     they had not agreed to retroactivity, without further
     elaboration.  In the page detailing the Board's proposal,
     the salary portion merely said "2003-2004 Salary Increase
     the base by 3 percent," without any reference to retro-
     activity.  The Board held to its position that it did not
     want to remove the zipper clause from the contract and that
     it had withdrawn the "hard to fill positions" item.  The
     Board's position on the salary and insurance issue was
     stated as an offer of a 3 percent increase in salaries in
     each year tied to the 80/20 insurance cost share based on
     the Choice Plus for both years.  The proposal to redirect
     savings that might occur with a lower-than-projected
     insurance increase in '04-'05 was not included.  The Board
     stated, "It is the desire of the Board to move teachers, by
     the 2004-2005 contract year, to the same cost share
     percentage (80% employer/20% employee of the Choice Plus
     Plan) as is reflected for other employees in the district."

                               -20-
_________________________________________________________________

52.  The Employer's pre-hearing brief was written and submitted
     by the superintendent of schools, as the Board did not want
     to engage outside assistance at that time.  The Employer's
     brief makes no representations as to the Association's
     position on any issue.
53.  About five minutes before the start of the fact-finding
     hearing, Laurie Haapanen and Joseph Stupak handed Mr. Jette
     a letter in an envelope.  They asserted in the letter that
     the zipper clause was a permissive subject of bargaining and
     asked the Employer to remove it as an issue to present to
     the fact-finding panel.  Up until this point, the Associa-
     tion had never mentioned or alluded to any concern that a
     zipper clause was a permissive subject of bargaining.  There
     was no testimony about any discussion between the parties
     concerning this letter.  The zipper clause was presented to
     the fact-finding panel as one of the outstanding issues.  
54.  There was little or no testimony on what transpired at the
     fact-finding hearing, other than testimony that the Associa-  
     tion presented an argument on why it viewed a failure to
     make wage increases retroactive a punitive measure.  When
     the fact-finding panel asked Mr. Jette about the Employer's
     position on retroactivity, Mr. Jette stated that he could
     not give a blanket offer of retroactivity but considered it
     negotiable.  He testified that he did not want to "tie my
     hands by agreeing in advance that retroactivity would be a
     given when it would only serve to protract the process by
     guaranteeing that no matter how long the process took there
     would always be retroactive pay."  Mr. Jette's testified
     that in his experience in the private sector retroactivity
     was unusual.
55.  Mr. Jette testified concerning why the Board's prior offer
     of May 14, 2003, was not the same as the offer made as part 

                               -21-
_________________________________________________________________

     of fact-finding process.  The May 14, 2003, proposal
     included a provision to redirect savings to salaries if
     premiums ended up being less than the projected 20 percent
     increase for 2004-2005.  Mr. Jette testified that this
     proposal was offered as an incentive to get the Association
     to modify its position on health care costs and settle the
     reopener bargaining before the end of the first year of the
     contract.  The Employer's objective was to reduce its cost
     increases by encouraging the employees to choose the less
     expensive Choice Plus plan by having employees assume a
     greater share of insurance costs in the second and third
     year of the agreement.  This reasoning had been provided to
     the Association during negotiations.  By the time the
     parties went to fact-finding in May of 2004, a year of
     potential cost savings had been lost.  During this bar-
     gaining process, the Board continued to maintain the status
     quo of the 87/13 cost share based on the more expensive
     Standard plan after the first year of the contract had
     passed.  Mr. Jette was also not certain that the resolution
     of the outstanding issues would occur prior to the health
     insurance plans' group enrollment deadline.
56.  Other than the information in the preceding paragraphs, the
     only other evidence presented concerning the fact-finding
     hearing were the two pre-hearing briefs and the report of
     the fact-finding panel.  None of the exhibits that were
     provided to the fact-finding panel were offered as evidence
     in this proceeding, nor was there any testimony about what
     information was presented or what questions were asked,
     except as already noted.  In describing the Employer's
     reaction to the fact-finders' report, Mr. Jette testified
     that he felt that the Employer's exhibits and testimony were
     "virtually ignored."  In particular, he questioned the fact-
     
                               -22-
_________________________________________________________________

     finders' assertion that the parties were in total agreement
     on salaries, even though the Employer's position was that
     the salary offer was tied to the health insurance issue. 
     Mr. Jette went on to say (without elaboration), "there just
     seemed to be bias against the board for a variety of reasons
     that was exhibited throughout the hearing."  
57.  There was no testimony to explain the basis for the Asso-
     ciation's assertions in its pre-hearing brief regarding the
     Employer's positions, nor was there any explanation offered
     as to why the Association had changed its position on the
     flat step 13 from its prior proposal of adding a 1/2 step in
     the final year to adding a 1/2 step in each of the two years. 
58.  The fact-finders' report was dated June 18, 2004.  The fact-
     finders stated, "The parties quite clearly agreed in
     principle to a three (3%) percent increase in salary for
     each of the two years" and noted that the Board tied that
     increase to its proposed change to the insurance
     contribution.  The panel decided that the Association's
     demand for the elimination of two flat steps at step 13 and
     step 15 was not justified.  There is no explanation of how
     the Association's position as stated in its brief of
     removing the flat step 13 in two 1/2 step increments
     transformed into adding step increases at two different flat
     steps.  The fact-finders concluded there was no need for
     additional steps.  With respect to the health insurance
     question, the fact-finders said the Employer contribution
     should be reduced to 80 percent of the Standard plan, rather
     than to 80 percent of Choice Plus.  They recommended that
     the change become effective at the beginning of the next
     contract year (September 2004) since employees can change
     plans only at that time.  Finally, the fact-finding panel
     suggested a change to the zipper clause so that it only 

                               -23-
_________________________________________________________________

     applies to permissive subjects.     
59.  After the fact-finding report was issued by the fact-
     finders, the Board received it and discussed it in executive
     session.
60.  On July 22, 2004, the Association presented a proposal to
     the Board, which was essentially the recommendation made by
     the fact-finders.  The Association proposed that the
     Employer pay 87 percent of the Standard plan through '03-
     '04, then 80 percent of Standard (or 86.4 percent of Choice)
     for the '04-'05 year (i.e., effective September 1, 2004). 
     The proposal included the change to the zipper clause found
     in the fact-finders' report that made it apply to permissive
     subjects only.  With respect to wages, the proposal included
     retroactivity for the change in base salaries and in the
     hourly rate used in the "Extra Pay for Extra Work" section
     of the salaries article in the collective bargaining
     agreement.  Upon receiving this proposal, the Board said it
     needed to assess it before responding, and asked if teachers
     supported the move to 80/20 cost share.  
61.  Mr. Nokes testified that the Association's position from 
     April 14, 2003, through fact-finding was to adhere to the 87
     percent figure based on the Choice Plus plan (nearly the
     same as 80 percent of the Standard plan).  After fact-
     finding, the Association's proposal was maintaining 87/13 of
     Standard for '03-'04, and going to 80/20 of Standard for
     '04-'05, which is equivalent to 86.4 percent of Choice.
62.  On August 12, 2004, the Board reported that they had
     considered the Association's proposal and rejected it.   
     Mr. Jette testified that the Board's primary reason for
     rejecting the fact-finders' recommendations was that the
     fact-finders did not consider the Board's position that the
     3 percent wage increase was dependent upon lesser costs for 

                               -24-
_________________________________________________________________

     health insurance.  He felt that the fact-finders ignored the
     Board's position and arguments.  Following the Board's
     rejection of the Association's proposal, the Association
     caucused, then said they would take it back to their
     membership on September 9, 2004.
63.  There were post-fact-finding mediation sessions held in the
     fall of 2004.  
64.  Mr. Nokes wrote a "Negotiations Update" dated 10/08/04 and
     had it distributed to Association members.  This memo
     touched on the first mediation session and Mr. Nokes'
     conclusion that the Employer was not going to budge on the
     insurance issue.  The memo was primarily focused on actions
     the Association members could take to try to increase
     pressure on the Board.
65.  In a letter dated October 29, 2004, the Association's chief
     negotiator, Mr. Nokes, wrote to Mr. Jette requesting that
     the Board agree to binding arbitration on all issues.
66.  On November 19, 2004, Mr. Jette wrote a letter to Mr. Nokes
     in which he stated the Board had decided to not agree to
     binding arbitration on insurance and salary, as requested on
     October 29, 2004.  Mr. Jette suggested statutory interest
     arbitration.  He notified the Association that the Board had
     retained the law firm of Drummond Woodsum & MacMahon at that
     point to represent the Board in the negotiations.
     
                           DISCUSSION     

     The question presented is whether the conduct of the Board
in negotiating pursuant to a reopener provision violated its
statutory duty to negotiate in good faith.  Before addressing
that issue, we will first discuss the Employer's claim that
evidence presented at the hearing compels a conclusion that the
Association had waived its statutory right to demand mid-term 

                               -25-
_________________________________________________________________

bargaining by agreeing to include a zipper clause in the
collective bargaining agreement.
     The duty to bargain is established in Section 965(1) of the
Municipal Public Employees Labor Relations Law which states, in
relevant part:
          
     1. Negotiations.  It shall be 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:
     
          A.  To meet at reasonable times; 
     
          B.  To meet within 10 days after receipt of
          written notice from the other party
          requesting a meeting for collective
          bargaining purposes, provided the parties
          have not otherwise agreed in a prior written
          contract;  
          
          C.  To confer and negotiate in good faith
          with respect to wages, hours, working
          conditions and contract grievance
          arbitration, except that by such obligation
          neither party shall be compelled to agree to
          a proposal or be required to make a
          concession . . .

26 M.R.S.A. 965(1).
 
The proviso in paragraph B means that the duty to bargain over
mandatory subjects of bargaining continues with respect to new
issues which arise while a collective bargaining agreement is in
effect "when those new issues are neither contained in the terms
of the contract nor negotiated away during bargaining for that
contract or a successor agreement."  East Millinocket Teachers
Ass'n v. East Millinocket School Committee, No. 79-24, at 4-5
(Apr. 9, 1979) (quoting Cape Elizabeth Teachers Association v.
Cape Elizabeth School Board, No. 75-24 (1975) at page 4.)  See
also Local 2303 IAFF v. City of Gardiner, No. 05-03 (March 22, 

                               -26-
_________________________________________________________________

2005).  The statutory right to demand bargaining may be waived,
but that waiver must be clear and unmistakable.  State of Maine
v. MSEA, 499 A.2d 1228, 1230 (Me. 1985).  A zipper clause is a
fairly common provision included in a collective bargaining
agreement as a means of waiving the statutory right to bargain. 
The purpose of a zipper clause is to foreclose or "zip up"
bargaining for the duration of the contract, thus promoting
stability in labor relations for that period.  The effect of a
zipper clause is that a party may lawfully refuse to bargain over
issues not covered by the contract when requested by the other
party.
     Here, the collective bargaining agreement contains a very
broad zipper clause.  The Employer argues that the Labor Board is
without jurisdiction to hear this matter because the Association
waived its statutory right to demand bargaining by agreeing to
the zipper clause in the collective bargaining agreement.  The
Employer also claims that the collective bargaining agreement's
reopener provision (the "Addendum" to the agreement) merely
creates a contractual right, but does nothing to limit the effect
of the zipper clause.[fn]4    
     The Employer's argument is based on its strained reading of
the Law Court's decision in State of Maine v. MSEA, 499 A.2d 1228
(1985).  In that case, the employer had refused MSEA's request to
bargain over the impact of three departmental reorganizations. 
The zipper clause in that case stated:

     Each party agrees that it shall not attempt to compel 
____________________

     4 This argument was the basis for the executive director's
dismissal of the complaint, which was subsequently reversed by the
Board.  The Board's analysis in the Interim Order of February 3, 2005,
was that the Addendum made it impossible to consider the waiver
contained in the zipper clause to be clear and unambiguous.  The
employer has not really addressed any failing in that logic. 

                               -27-
_________________________________________________________________

     negotiations during the term of this Agreement on
     matters that could have been raised during the nego-
     tiations that preceded this Agreement, matters that
     were raised during the negotiations that preceded this
     Agreement or matters that are specifically addressed in
     the Agreement.

Even though the management rights clause of the agreement
authorized the employer to reorganize the departments,[fn]5 both the
Labor Board and the Law Court recognized that the duty to bargain
over the impact was a separate question.  After reviewing the
specific terms of the collective bargaining agreement, the Law
Court held:

     the State's unilateral action was specifically
     permitted under the contract.  The statutory duty to
     negotiate over the impact of such decisions could have
     been preserved in the contract.  That statutory
     obligation was waived.

State of Maine v. MSEA, 499 A.2d at 1232.

     The Employer relies on the Law Court's statement that the
right to demand bargaining over impact "could have been
preserved."  The Employer claims that, in this case, the parties'
express agreement to "reopen negotiations" did not preserve the
right to demand bargaining.  The Employer admits in its brief (at
16, fn. 5) that the Labor Board "reasonably inferred from the 
____________________

     5 The management rights article expressly reserved to the State
the exclusive right to manage its operations, including but not        
limited to:

     [T]he right to determine the mission, location and size of
     all its agencies and facilities; the right to direct its
     work force; . . . to establish specifications for each class
     of positions and to classify or reclassify and to allocate
     or reallocate new or existing positions in accordance with
     the law; . . . to determine the size and composition of the
     work force; . . . [and] to install new, changed or improved
     methods of operations.
Id. at 1229, fn. 3.

                               -28-
_________________________________________________________________

language of the Addendum that the parties had intended to
preserve their statutory right to bargain," but the Employer also
says "nothing contained in the Addendum reserves the
Association's statutory right to bargain."
     We disagree.  The Addendum, which stands on equal footing
with the other provisions of the contract, states, in full:

     MSAD #46 Board of Directors and the MSAD #46 Education
     Association will reopen negotiations of the MSAD #46
     2002-2005 Comprehensive Teachers' Contract in November
     or December of 2002 for the purposes of negotiating
     salaries, health insurance, zipper clause and hard to
     fill teaching positions for the second and third years. 
     If agreement is not reached, the normal procedures of
     impasse by state statute is open to either side.

The language of the Addendum is abundantly clear:  when the
parties agree to "reopen negotiations" . . . "in November or
December of 2002 for the purposes of negotiating" the specified
subjects, they are doing just that.  Reopener provisions have
been around longer than Maine's collective bargaining laws.  They
promote labor stability by allowing the parties to agree to long-
term contracts while retaining the ability to return to the table
for specified subjects within the time frames or under the
circumstances agreed upon.  The fact that the parties in this
case decided to include the reopener provision without expressly
stating that they were "preserving their statutory right to
bargain" simply reflects the fact that they did not need to say
anything.  In common parlance in the world of collective
bargaining, agreeing to a reopener means that they are preserving
the statutory right to demand bargaining.  The duty to bargain
resumes in accordance with the conditions of the reopener
provision.  See, e.g., C.J. Holdings Inc., 315 NLRB 813 (1994),
enforced, 97 F.3d 114 (5th Cir. 1996).
     As Mr. Jette testified, the parties were anxious to execute
an agreement covering all of the issues they had agreed on, 

                               -29-
_________________________________________________________________

including the salaries and health insurance costs for the first
year, and to take up the identified issues for the second and
third year of the contract later.  Mr. Jette testified that there
was an open discussion at the bargaining table on having a three-
year agreement and including a reopener clause for the second and
third year of the contract for the purpose of negotiating the
salary, health insurance, zipper clause and hard-to-fill
positions.  The fact that neither Mr. Jette nor Mr. Nokes
recollected any mention of "preserving their statutory right to
bargain" is quite simply just a reflection of their understanding
that a reopener provision preserves the right to demand
bargaining.  The very purpose of a reopener provision is to
require mid-term bargaining even if the subjects covered by the
reopener are already covered by the contract.  We hold that the
reopener provision of the parties' collective bargaining
agreement was sufficient to preserve the statutory right to
bargain and creates an exception to the broad waiver in the
zipper clause. 
     The Employer's claim that Bureau of Employee Relations v.
AFSCME creates an "unambiguous" standard that applies here is
difficult to follow.  Bureau of Employee Relations v. AFSCME, 
614 A.2d 74 (Me. 1992).  In that case, the dispute was whether the
employer could change the pay periods, an issue not covered by
the collective bargaining agreement.  The parties had negotiated
a broad zipper clause and a maintenance of benefits article in
which the State agreed to consult and negotiate with AFSCME
before changing any benefit "presently provided pursuant to law." 
The Law Court held that by agreeing to the zipper clause, AFSCME
had waived its statutory right to demand bargaining over the
change.  The Law Court noted that the maintenance of benefits
provision created only a contractual right but did not preserve
the statutory right to bargain, even though in that provision, 

                               -30-
_________________________________________________________________

the employer agreed to negotiate with AFSCME before making
changes.  The Employer claims that in AFSCME the Law Court held
that even an "express reference to an agreement to bargain" is
insufficient to preserve the right to demand bargaining during
the term of the agreement.  Thus, the argument goes, the express
reopener provision in this case is insufficient as well and, like
the maintenance of benefits article in AFSCME, only creates a
contractual right.  At this point, we must observe that if the
parties had not preserved the statutory right to bargain in this
case, it is difficult to imagine how they ever could, if one were
to apply the "unambiguous" standard the Employer has created
here.  The Employer's argument fails because it extracts a few
words out of the context of the larger environment of collective
bargaining and ignores both the intent of the parties and the
realities of collective bargaining.
     The purpose of a maintenance of benefits provision is
fundamentally different than the purpose of a reopener provision. 
The purpose of a reopener is to reopen negotiations in accordance
with the limitations or contingencies specified.  It enables the
parties to enter into an agreement for a longer period than they
might be comfortable with absent the reopener.  The purpose of a
maintenance of benefits provision, however, is to preserve the
status quo with respect to benefits or practices not covered by
the agreement.  Some maintenance of benefits provisions simply
prohibit changes to existing benefits or practices (See IAM
District Lodge #4 v. Wiscasset, No. 03-14 (Feb. 23, 2004) at 3);
others require the parties to bargain before making the change.
(See BOER v. AFSCME, 614 A.2d 74).  In some respects, the purpose
of a maintenance of benefits provisions is to limit the authority
granted in a management rights clause with respect to existing
practices affecting mandatory subjects that are not covered by
the agreement. 

                               -31-
_________________________________________________________________

     In summary, we hold that even though the parties included a
broad zipper clause in the collective bargaining agreement, the
reopener provision preserved the statutory right to bargain over
the issues specified.  The testimony on this matter supports, not
undercuts, our conclusion.  The Labor Board consequently has
jurisdiction to decide the question of whether the MSAD #46 Board
failed to bargain in good faith in negotiations held pursuant to
the reopener provision.  

THE FAILURE TO BARGAIN IN GOOD FAITH CHARGE

     The standard this Labor Board applies in evaluating alleged
violations of the duty to bargain in good faith is not in
dispute.  It has been described as follows: 
                    
     A bad faith bargaining charge requires that we examine
     the totality of the charged party's conduct and decide
     whether the party's actions during negotiations
     indicate "a present intention to find a basis for
     agreement."  NLRB v. Montgomery Ward & Co., 133 F.2d
     676, 686 (9th Cir. 1943); see also Caribou Schoo1
     Department v. Caribou Teachers Association, 402 A.2d
     1279, 1282-1283 (Me. 1979).  Among the factors which we
     typically look to in making our determination are 
     whether the charged party met and negotiated with the
     other party at reasonable times, observed the ground
     rules, offered counterproposals, made compromises,
     accepted the other party's positions, put tentative
     agreements in writing, and participated in the dispute
     resolution procedures.  See, e.g., Fox Island Teachers
     Association v. MSAD #8 Board of Directors, MLRB No.
     81-28 (April 22, 1981); Sanford Highway Unit v. Town of
     Sanford, MLRB No. 79-50 (April 5, 1979).  When a        
     party's conduct evinces a sincere desire to reach an
     agreement, the party has not bargained in bad faith in
     violation of 26 M.R.S.A. Sec. 964(1)(E) unless its
     conduct fails to meet the minimum statutory obligations
     or constitutes an outright refusal to bargain.

Kittery Employees Assoc. v. Strahl, No. 86-23, at 10-11 (Jan. 27,
1987), quoting Waterville Teachers Assoc. v. Waterville Board of

                               -32-
_________________________________________________________________

Education, No. 82-11, at 4 (Feb. 4, 1982).  See also MSEA v. York
County, 04-04, at 28-29 (Oct. 8, 2004).  
     At the same time the statute imposes the obligation to
bargain in good faith on both parties, section 965(1)(C) also
states that, ". . . neither party shall be compelled to agree to
a proposal or be required to make a concession . . . ."  Thus, a
refusal to agree to a particular proposal is not, in itself, a
refusal to bargain in good faith.
     The established standards of good faith bargaining apply to
the parties whether they are negotiating a new contract, a
successor contract, or pursuant to a reopener provision.  See,
NLRB v. Lion Oil, 352 U.S. 282 at 290-291 (1957) ("Congress
recognized a duty to bargain over modifications when the contract
itself contemplates such bargaining."); Speedtrack, 293 NLRB No.
128 at 9-10 (holding that a contract reopener provision permits
the parties "to respond to disputes over reopened subjects by
resort to the courses of action normally allowed them when a
contract has expired"); see generally, e.g., Maine Teachers
Assoc. v. Sanford School Committee, No. 77-18 (June 13, 1977)
(applying same standards of good faith bargaining to negotiations
occurring pursuant to a reopener provision) and Auburn Support
Personnel v. Auburn School Committee, No. 91-12 (July 11, 1991)
(same).
     There are two aspects of this case that make it particularly
difficult to assess the Employer's actions.  The first is that
the negotiations were pursuant to a reopener provision which by
its terms was limited to four issues:  salaries for the second
and third years of the contract, health insurance cost sharing
for those two years, the zipper clause and the issue of hard-to-
fill positions.  The fewer the issues on the table, the less
opportunity there is to witness the give and take that often
indicates sincere bargaining.  The other complicating factor in 

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this case is the fact that the economics underlying the proposals
were affected once the negotiations moved into the time frame
being negotiated.  
     We also note that there is a lot that was not said about the
negotiations in this case:  The notes from a key negotiating
session are missing from the Association's exhibits, neither
party provided copies of certain documents that had been
distributed at negotiating sessions, very little effort was made
by either party to explain the sometimes cryptic notes of
negotiating sessions, and what transpired at the fact-finding
hearing remains largely a mystery.  Presumably, the parties
either individually or jointly decided they have issues they did
not want raised at this proceeding, for whatever reason. 
     In essence, the case is about whether the Employer engaged
in hard bargaining or bad faith bargaining.  The Board of
Directors gave its negotiators authority to negotiate a combined
salary and health insurance increase of 5 percent and the
negotiators were bargaining with that objective in mind.[fn]6  The
Association had one of the better insurance benefits in the area
and did not want the district's relative standing to slip. 
Neither party wanted to give in.   The Association alleges that,
by it overall conduct since the start of the reopener negotia-
tions, the Employer failed to bargain in good faith as required
by 965(1).
     The Association's case relies on two primary points:  a
factual assertion, which we conclude is not supported by the
record, and what appears to be the Association's position in this
case that negative movement in the Employer's proposals was
regressive, and their regressive proposals demonstrate bad faith
____________________

     6 See Local 1650 IAFF v. City of Augusta, No. 04-14 at 15 (holding
to negotiating parameters set by City Council is hard bargaining, not 
bad faith bargaining.)

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bargaining.  This, too, is incorrect.  The Association also
asserts that the Employer's conduct regarding retroactivity and
the zipper clause are further indications of bad faith
bargaining.              
     Much of the complainant's case depends on its assertion that
when the Employer proposed a 3 percent salary increase and a
80/20 insurance cost share at the March 19, 2003, negotiating
session, the basis for defining the contribution level was the
higher cost Standard plan, not the less expensive Cost Plus plan. 
Although the complainant recognizes that the exhibits are not
clear on this point, the complainant relies on Mr. Jette's
testimony that they did not start using the lower cost plan as
the basis for the cost share until April.  Mr. Jette did indeed
say that, but we conclude that he was simply mistaken about   
the dates.  Looking at all of the evidence as a whole (and  
Mr. Jette's repeated assertion that he was not strong on      
details), we conclude that the March 19 proposal was based on 
the Choice Plus plan.
     The most compelling evidence about this issue is the
specifics of the first counterproposal to the March 19 offer that
the Association made on April 14, 2003.[fn]7  At that meeting, the
Association proposed a 3 percent salary increase in year two, a 3
percent salary increase in year three with 1/2 step added to step
13 for year three, and a health insurance cost share of 87/13 of 
the Choice Plus plan for both years.  If the Employer's March 19 
proposal had indeed been based on the Standard plan as the 
Association now asserts, the Association's counterproposal on 
____________________

     7 In its brief, the Association claims that this proposal was not
made until April 29, 2003, but cited no evidence that supports this
assertion and offered no evidence disputing the Employer's detailed
notes of the April 14, 2003, session which unequivocally state that
the Association made this counterproposal.  The Association did not
offer their notes of the April 14 negotiating session in evidence. 

                               -35-
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April 14 would have been the same for insurance because 87
percent of the Choice Plus plan is equivalent to 80 percent of
the Standard plan.  Furthermore, since both the Employer's
proposal and the Association's counterproposal included a 3
percent salary increase for both years, the only difference in
the two packages would have been the adjustment to step 13. 
There is no indication in the record that the step issue was
discussed or analyzed at all prior to the April 29 meeting.  All
of the discussions on March 19, March 29 and April 14 related to
the impact of the insurance costs.  The step issue never even
came up.  It does not make sense that the parties could have been
so close to settlement but never even mentioned the only issue
that separated them.     
     The Association contends that Mr. Jette was correct in
saying the Employer did not propose using Choice Plus for
calculating the cost share until April but that he was wrong in
saying that April was the first time they proposed a 3 percent
increase.  Based on these two assertions, the Association argues
that the only change presented on April 14 was a reduction in the
proposed insurance contribution.  We conclude that Mr. Jette was
correct that this increase in salary occurred in tandem with the
move to Choice Plus.  He was incorrect to state (in response to a
leading question from the Employer's attorney) that these changes
occurred on April 14, 2003.  Both sets of negotiating notes show
the 3 percent increase was presented on March 19, 2003.  These
notes are more reliable than a witness's recollection of dates
and details of events two years old.[fn]8
____________________

     8 We do not think Mr. Jette's testimony that the Board was taking
advantage of a "window of opportunity" presented by the Association's
reference to Choice Plus as the basis for calculating the cost share
is particularly important.  The previous June, the Association had
used Choice Plus as part of its proposal for a two-tiered insurance
plan and Mr. Jette might have had that in mind.  The Board's decision
to start using Choice Plus in their March 19 proposal may be connected

                               -36-
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     Furthermore, the Board's notes of the April negotiating
session support the conclusion that the March 19 cost-share offer
was based on Choice Plus.  After the Association made its   
April 14 counterproposal, in which it proposed a 87/13 cost share
based on Choice Plus for both years, Mr. Jette remarked that the
Association's proposal was 7 percent higher than the Board's
proposal.  Had the Board's proposal been 80 percent of the
Standard plan, this comment would not have made sense--80 percent
of the Standard plan is equivalent to 87 percent of the Choice
Plus plan.  His comment makes perfect sense if the Board's March
proposal were based on Choice Plus.
     By concluding that the Board's March 19 proposal used Choice
Plus as the basis for the cost share, the Association's argument
that subsequent actions by the Employer were regressive is
weakened substantially.  The Association asserts that the Board's
proposal on April 14 differed from its prior proposal only by a
reduction in the insurance contribution, i.e. that it was the
first time the Employer based the cost share on the Choice Plus
plan.  The facts simply do not support this.  Not only was there
no reduction in the insurance contribution from the March 19
proposal, the Board's counterproposal of April 14 included an
increase from 80 percent to 87 percent of Choice Plus for the
first of the two years.  
     The Association also contends that the Employer made
significantly regressive proposals on salaries.  Presumably this
refers to the Employer's failure to include in the May 2004 
fact-finding position statement the proposal made on May 14,
2003, to redirect to salaries the savings that might occur if 
the insurance rates for 2004-05 ended up being less than the 
____________________

to that proposal or his statement may have been an after-the-fact
explanation.

                               -37-
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projected 20 percent.  The Association may also be referring to
removal of the proposal to improve step 13 between April 29 and
May 14, 2003.  In either case, the Association's argument seems
to be that the backward movement on these issues is by definition
regressive and a regressive proposal is by definition an
indication of bad faith bargaining.  This is not the case.  
     A claim that a regressive proposal is evidence of bad faith
requires an examination of the proposal and the surrounding 
circumstances.  We note that even if the parties had reached a
tentative agreement on a proposal, a subsequent withdrawal of
that proposal would not necessarily result in a finding of bad
faith bargaining.  We held in Lewiston Police that it was
evidence of bad faith for a party to unilaterally withdraw prior
tentative agreements without good cause.  Lewiston Police Dept.
IBPO v. City of Lewiston, No. 79-64 (Dec. 18, 1979) at 8.  In
this case, there were no tentative agreements on these two issues
and there is no evidence that the Employer ever refused to
provide an explanation for no longer including the proposals.  
     As with any allegation of bad faith bargaining, we must
consider all the evidence to determine whether any single action
or the entire course of conduct was made with the intent to avoid
an agreement or an intent to frustrate the bargaining process. 
See generally Kittery Employees Assoc. v. Strahl, No. 86-23, at
10-11, and Teamsters v. City of Westbrook, No. 89-05, at 10-11
(Oct. 25, 1988) (Failure to submit the final tentative agreement
for ratification for an unreasonable length of time evidences a
lack of intention to reach a final binding agreement and
frustrates the bargaining process).  With respect to the
Employer's proposed change to step 13, the evidence shows that
this proposal was rejected by the Association, as their counter-
proposal reiterated the point made in discussion that they wanted
the improvement to step 13 to push up all of the higher steps by 

                               -38-
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a corresponding amount.  With respect to the offer to redirect
the potential savings from smaller premium increases in 2004-
2005, Mr. Jette explained that it had been presented as an
incentive to reach settlement early enough for the Employer to
realize some savings from employees selecting Choice Plus.  By
the time the fact-finding hearing occurred one year later, the
opportunity to achieve those savings had been lost because the
Employer had been required by law to continue paying 87 percent
of the cost of the Standard plan.[fn]9  There is no allegation in the 
complaint that the Employer refused to provide an explanation of 
its changed position at the fact-finding hearing nor is there any 
evidence that this issue was discussed at all in fact-finding.  
The Association has offered no evidence to suggest that these 
proposals were made with the intent to avoid reaching an 
agreement.  
     The Association makes various other contentions about the
Employer's conduct that it considers indicative of bad faith
bargaining, most of which are not supported by the record.  The
Association claims that the Employer's "initial" proposal on
March 19, 2003, was its best offer, but it was neither the
initial proposal nor its best proposal.  It was not an initial
proposal because both parties viewed the reopener as a
continuation of the prior bargaining.  Even if it were the
initial proposal, the March 19 proposal was not the Employer's
best offer because the April 14 counterproposal had increased the
cost share to 87 percent for the first of the two years.  
     The Association claims the Employer never made a proposal on
the zipper clause issue, though the record is clear the 
____________________

     9 The 87/13 cost share for the Standard plan was the status quo
that the Employer was required to maintain during the collective
bargaining process and through the impasse resolution procedures
established by statute.

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Employer's proposal was to retain the clause in the existing
agreement.  Perhaps the Association is suggesting that the
proposal to keep the zipper clause in the existing agreement was
never actually made because it was not presented in written form. 
The Association has not argued this point and, even if it had, it
would fail in this case.  It is true that the parties' notes on
ground rules indicate that a proposal must be in writing.  Not
only was there no testimony interpreting this ground rule, there
are numerous instances of proposals made by both sides without
any evidence that those proposals were made in writing. 
     The Association also claims the Employer "artfully evaded"
making a proposal on retroactivity, but this issue had not been
on the bargaining table during the negotiating sessions.  The
Employer's position at the time of fact-finding was that it had
not agreed to retroactivity, but considered it negotiable.[fn]10  The 
Association claims that the Employer made no lasting compromises, 
a claim the record does not support.  Finally, the Association 
claims the Employer "summarily rejected" the fact-finders' 
recommendations, when the evidence indicates that they considered 
it in executive session and had a reasoned basis for rejecting 
it.  
     A final argument presented by the Association is that the
Employer committed a per se violation of the duty to bargain by
insisting on a permissive subject of bargaining at fact-finding.  
It is well established that a party commits a per se violation by
insisting to impasse on a non-mandatory subject of bargaining. 
See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 
____________________

     10 Retroactivity is clearly a mandatory subject of bargaining.  
See Caribou School Dept. v. City of Caribou, 402 A.2d 1279, at 1284
(Me. 1979); Auburn Firefighters, IAFF v. City of Auburn, No. 83-10  
at 8 (March 9, 1983).  Retroactive changes, however, must always be
agreed upon before they can be implemented; otherwise they are simply
unilateral changes in the status quo made retroactively.

                               -40-
_________________________________________________________________

(1958); MSAD No. 24 v. Van Buren Custodian Assoc., No. 79-16
(1979).  The Association asserts in its brief that a zipper
clause is a permissive subject of bargaining, not a mandatory
subject.  The Association argues:  "A bargaining agent cannot be
forced to bargain over a provision which constitutes a waiver of
bargaining rights on all subjects."  The case the Association
relies upon is MSAD #22 Non-Teachers Assoc. v. MSAD #22, No. 
79-32 (July 30, 1979).  In that case, the employer had proposed a
provision which would have given management the unrestricted
power to make changes to mandatory subjects.  The Board described
it as "an all-inclusive management rights provision which sweeps
over all subjects of mandatory bargaining" and was "ultimate
management control over all subjects."   The Board concluded:

     Thus, while we agree that a management rights clause
     covering only a few mandatory subjects of bargaining
     would not be a per se violation but rather only
     possible evidence of bad faith, we conclude that a
     bargaining agent cannot be forced to bargain over a
     provision which constitutes a waiver of bargaining
     rights on all subjects. 

MSAD #22, No. 79-32 at 6.     

     We think it appropriate that the Association has cited MSAD
#22 on this issue because we conclude that the same analysis that
applies to management rights clauses should apply to zipper
clauses as well.  Both zipper clauses and management rights
clauses are forms of waiver.  A zipper clause waives the parties'
right to demand mid-term bargaining on subjects not covered by
the agreement or raised in negotiations.  Management rights
clauses authorize the employer to make the changes specified in
the clause without bargaining first.  In MSAD #22, the Labor
Board agreed with the holding of the U.S. Supreme Court in
American National Insurance that insisting on a provision
reserving sole control over certain mandatory subjects 

                               -41-
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(promotions, discipline, and work scheduling) may be evidence of
bad faith bargaining, but it should not be considered a per se
violation.  MSAD #22, No. 79-32, at 7, citing NLRB v. American
National Insurance, 343 U.S. 395 (1952).  Thus, while management
rights clauses are a mandatory subject of bargaining, that does
not mean all management rights clauses can be insisted upon with
impunity in all circumstances.  Similarly, a zipper clause is a
mandatory subject but insisting upon a broad zipper clause in
some circumstances, such as when negotiations covered only a
minimal number of subjects, may be evidence of bad faith
bargaining.  See Bangor Firefighters Assoc. v. City of Bangor,
No. 94-45 (Feb. 15, 1995) at 15 ("the number of mandatory
subjects on which a waiver is demanded [and] the nature of the
waiver" is relevant.)    
     The Association attempts to draw a parallel between the
effect of the provision in MSAD #22 and the effect of the zipper
clause in the present case.  In MSAD #22, the Labor Board was
examining a clause that would go into effect if the voters failed
to approve the contract.[fn]11  No. 79-32 at 7.  As noted above, 
the effect of the clause at issue was to give the employer
unrestricted power to make changes in any subject, and had the
effect of nullifying the agreement entirely.  In this case, the
effect of the zipper clause bears no resemblance to either
provision in MSAD #22.  We agree that the zipper clause here is
very broad.  The effect of it, however, can only be assessed in
light of the contract as a whole.  The more comprehensive a
collective bargaining agreement is, the less effect a zipper
clause has in limiting the right of a party to demand mid-term 
____________________

     11 In addition to the clause giving the employer unfettered power, 
the Labor Board also found that the employer committed a per se
violation of the duty to bargain by insisting on a provision that
"shunted ratification" to the voters. Id.

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bargaining.  Given the comprehensive coverage of the parties'
collective bargaining agreement in the present case, we cannot
see how the holding in MSAD #22 has any application.
      Our conclusion that a zipper clause is a mandatory subject
of bargaining is supported by observations made by the Law Court
in State of Maine v. MSEA.  In discussing the zipper clause issue
in that case, the Court noted that "Section 979-D(1)(B) of the
act specifically provides that the parties may alter the   
statutory duty to engage in collective bargaining" and
"[u]nquestionably, the parties may contractually waive the right
to any mid-term negotiations."  In rejecting the Labor Board's
analysis of the effect of the zipper clause in that case, the Law
Court stated:
 
     If there is a sound policy basis for restricting or
     eliminating the right to bargain for a waiver of mid-
     term negotiations over the impact of agreed upon
     unilateral employer actions, then that policy should be
     reflected in legislation.

State of Maine v. MSEA, 499 A.2d at 1232.  
     
     We think that part of the problem in the present dispute may
stem from a misunderstanding of the purpose and effect of a
zipper clause.  The purpose of a zipper clause is to limit a
party's right to demand mid-term negotiations on mandatory
subjects of bargaining to the extent specified in the zipper
clause.[fn]12  A zipper clause does not authorize the employer to
make unilateral changes.  It simply makes it legal for one party
to refuse the other party's request for mid-term bargaining over
a mandatory subject.  The employer's specific authority to make a 
____________________

     12 The fact-finders' insertion of a clause making the zipper clause 
applicable only to permissive subjects of bargaining had the effect of 
transforming it into a meaningless provision because there is no duty 
to bargain over permissive subjects.

                               -43-
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change must be found in the collective bargaining agreement or in
established past practice.  For example, in State of Maine v.
MSEA, the Law Court found that "the State's unilateral action was
specifically permitted under the contract," a conclusion that was
independent of its conclusion that the right to demand bargaining
over the impact of such an action was waived.  499 A.2d at 1232. 
Similarly, in Auburn Firefighters Ass'n v. City of Auburn, the
Labor Board found that a general management rights clause did not
authorize the employer to implement a new, light-duty work
program and was not a waiver by the union of its right to compel
bargaining about the program before it was implemented.  No.
83-10 at 6 (March 9, 1983).  See also, Local 2303, IAFF v. City
of Gardiner, No. 05-03 (Management rights clause was not specific
enough to authorize new call-back policy nor was it sufficient to
be a waiver of Union's right to bargain about the policy).[fn]13
     Furthermore, the Association's statement that the zipper
clause constitutes a waiver of bargaining rights on all subjects
ignores the principle stated in Cape Elizabeth that there is no
right to mid-term bargaining when the issue is already covered by
the terms of the contract.  No. 75-24 at 4.  To the extent that
either party is concerned about the overly broad effect of a
zipper clause on the right to demand mid-term bargaining, those
concerns should be expressed at fact-finding or interest arbi-
tration in support of no zipper clause or a less expansive one.
     In summary, we conclude that the Association has failed to
demonstrate that the Employer has not bargained in good faith as
required by 965(1)(C) or failed to participate in good faith in 
____________________

     13 When it comes to determining whether an employer is authorized
to take unilateral action, it is important to remember that, unlike
under the National Labor Relations Act, Maine's acts do not contain
any inherent managerial rights.  State v. MLRB, 413 A.2d 510, 514
(1980) and Bath Firefighters v. City of Bath, 80-44 at 3 (Oct. 17,
1980).  Even educational policy changes are subject to the meet-and-
consult requirement under MPELRL.  26 M.R.S.A. 965(1)(C).

                               -44-
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mediation or fact-finding as required by 965(1)(E).  As there
was no independent basis for a violation of 964(1)(A) alleged,
there is no basis for finding a violation of that section.

                              ORDER

     On the basis of the foregoing findings of facts and
discussion and by virtue of and pursuant to the powers granted to
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
968(5), it is hereby ORDERED:

     1.  That portion of the complaint charging the MSAD #46
     Board of Directors with violating 26 M.R.S.A 965(1)(C)
     and 965(1)(E) by refusing to bargain in good faith and
     refusing to participate in mediation and fact-finding
     in good faith is dismissed.
          
     2.  That portion of the complaint charging the MSAD #46
     Board of Directors with violating 26 M.R.S.A. 965(1)(A) 
     by interference, restraint or coercion is dismissed.
                    
Dated at Augusta, Maine, this 12th day of October, 2005.

                                   MAINE LABOR RELATIONS BOARD


The parties are advised of        
their right pursuant to 26         /s/______________________________
M.R.S.A. 968(5)(F) to seek a      Peter T. Dawson
review of this decision and        Chair
order by the Superior Court.  
To initiate such a review, an
appealing party must file a 
complaint with the Superior        /s/______________________________
Court within fifteen (15) days     Karl Dornish, Jr.
of the date of issuance of         Employer Representative
this decision and order, and 
otherwise comply with the 
requirements of Rule 80(C) of 
the Rules of Civil Procedure.      /s/______________________________
                                   Robert L. Piccone
                                   Employee Representative



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