Affirmed by Maine Law Court , 2013 ME 63 

 

	  
	  The need for this status quo determination became apparent
in the process of litigating a prohibited practice complaint
filed by the IAFF Local 1650, Augusta Fire Fighters against the
City of Augusta on September 1, 2010.  That complaint alleged
that the City's failure to honor the "evergreen clause" contained
in the agreed-upon negotiating ground rules constituted a failure
to bargain in good faith.  During the course of litigating that
complaint, the Complainant indicated an intent to call various
witnesses to testify on matters related to the City's alleged 
unilateral changes to three mandatory subjects of bargaining that
were covered by the expired collective bargaining agreement.  The
City objected to expanding the focus of the hearing to matters
that were not raised in the complaint or the pre-hearing
conference.  During the discussion that ensued, the parties
informed the Board that three grievances on these matters had
been filed and were being held in abeyance pending the resolution
of the complaint.  The Board decided to proceed with the hearing
as outlined in the prehearing conference and revisit the matter
of the additional testimony at the close of the hearing.

[end of page 1]
     
     When both parties had finished presenting their evidence on
the prohibited practice complaint, the discussion continued on
the options available to the Board and the potential relevance of
26 M.R.S.A. §964-A(2).  The Complainant was directed to file a
brief identifying the three unilateral changes the City allegedly
made with supporting legal arguments as to how the alleged
unilateral changes were relevant to the complaint.  The City
would be able to file a responsive brief.  The Board would then
determine if an additional day of hearing should be scheduled,
and, if not, what the next step should be.

     In the Interim Order dated August 9, 2011, the Board decided
that prohibited practice complaint should be decided on the basis
of the evidence already presented, and should not be expanded to
include matters not directly related to the City's conduct in
repudiating the evergreen clause.  The Board also determined, sua
sponte, that there was a dispute between the parties over whether
three specific provisions of their expired collective bargaining
agreement were enforceable under §964-A(2) by virtue of the
static status quo doctrine.  As a result, the Board ordered the
parties to submit briefs on two matters:  the merits of the
Prohibited Practice Complaint and whether the three identified
issues were enforceable "by virtue of the static status quo
doctrine."  On September 7, 2011, the City filed a Motion to
Reconsider that Order, which was denied on September 13, 2011. 
The parties agreed upon a revised briefing schedule and both
briefs were filed with the Board by October 17, 2011.

     Between the issuance of the September 13, 2011, decision and
the deliberation of this case, the term of the Board Chair who
had served as the prehearing officer, David C. Elliott, expired. 
Barbara L. Raimondi, Esq., was appointed to take over and was 

[end of page 2]

provided with the record and a copy of the transcript to read
before the deliberation.  The other two members of the Board,
Patricia M. Dunn and Carol M. Gilmore, joined Chair Raimondi to
deliberate this Status Quo Determination and the Prohibited
Practice Complaint on November 9, 2011.  The Board's decision on
the Prohibited Practice Complaint is being issued as a companion
case to this Status Quo Determination. 

                            DISCUSSION
  
     This is the first Status Quo Determination issued by this
Board under 26 M.R.S.A. §964-A(2).  We have, however, recently
described the history and purpose of the provision in other
decisions.  The Board's function in making a status quo
determination is fundamentally different than our primary
responsibility of deciding prohibited practice cases and
representational matters.  For that reason, it is particularly
important to provide a comprehensive introduction and explanation
of §964-A(2) in an accessible format to assist parties in
navigating through these kinds of disputes in the future. 
 
     Section 964-A(2), which was enacted in 2005, mandates the
continuation of grievance arbitration provisions after the
expiration of the collective bargaining agreement. Section 964-A,
in its entirety, provides: 
 
     §964-A. Continuation of grievance arbitration
     provisions

     1. Contract signed before October 1, 2005.  If a
     contract between a public employer and a bargaining
     agent signed prior to October 1, 2005 expires prior to
     the parties' agreement on a new contract, the grievance
     arbitration provisions of the expired contract
     pertaining to disciplinary action remain in effect
     until the parties execute a new contract. 
     

[end of page 3]

     2. Contract signed after October 1, 2005. If a contract
     between a public employer and a bargaining agent signed
     after October 1, 2005 expires prior to the parties'
     agreement on a new contract, the grievance arbitration
     provisions of the expired contract remain in effect
     until the parties execute a new contract. In any
     arbitration that is conducted pursuant to this
     subsection, an arbitrator shall apply only those
     provisions enforceable by virtue of the static status
     quo doctrine and may not add to, restrict or modify the
     applicable static status quo following the expiration
     of the contract unless the parties have otherwise
     agreed in the collective bargaining agreement. All such
     grievances that are appealed to arbitration are subject
     exclusively to the grievance and arbitration process
     contained in the expired agreement, and the board does
     not have jurisdiction over such grievances. The
     arbitrator's determination is subject to appeal,
     pursuant to the Uniform Arbitration Act. Disputes over
     which provisions in an expired contract are enforceable
     by virtue of the static status quo doctrine first must
     be resolved by the board, subject to appeal pursuant to
     applicable law. The grievance arbitration is stayed
     pending resolution of this issue by the board. The
     board may adopt rules as necessary to establish a
     procedure to implement the intent of this section.
     Rules adopted pursuant to this subsection are routine
     technical rules as defined in Title 5, chapter 375,
     subchapter 2-A. Nothing in this subsection expands,
     limits or modifies the scope of any grievance
     arbitration provisions, including procedural
     requirements. 


   The Board's first case involving §964-A was issued in
January of this year and, even though that case involved the
impact of §964-A(1) only, the detailed explanation of the history
of the section is relevant here.  Sanford Prof'l Fire Fighters v.
Town of Sanford, No. 11-04 (Jan. 28, 2011).  The Board's
explanation of the section began with its origin:

        The genesis of section 964-A was a decision of the
   Law Court holding that the obligation to arbitrate
   grievances is extinguished with the expiration of the
   collective bargaining agreement.  In the 1994 case of 

[end of page 4]

   Teamsters Union Local #340 and Ralph Dobson v. Portland
   Water District, the Law Court held: 
 
             As a matter of law, no obligation exists
        to arbitrate a grievance that arises after
        the expiration of a collective bargaining
        agreement unless that grievance involves
        rights that vested or accrued, or facts or
        occurrences that arose while the collective
        bargaining agreement was in effect.  Lane v.
        Bd. of Directors of Maine Sch. Admin. Dist.
        No. 8, 447 A.2d 806 (Me. 1982).[fn]5.   Here
        we are dealing with neither vested rights nor
        an occurrence during the term of the
        collective bargaining agreement.  While an 
        agreement is in effect, the terms and
        conditions therein are enforceable as a
        matter of contract and may be subject to
        arbitration.  Once the agreement expires,
        however, the parties lose their contractual
        rights and are left with only the statutory
        duty to bargain in good faith.  Lane, 447
        A.2d 810.  This duty requires the parties to
        maintain the status quo until either a new
        contract is ratified, or the negotiations
        reach a bona fide impasse.  The remedy for a
        breach of the duty is a prohibited practice
        complaint before the Board, rather than  
        grievance arbitration under the expired
        contract.  Id. at 809-810.

             [Appellant's] grievance did not arise
        until approximately five months after the
        agreement had expired and his claim of
        termination without "just cause" does not
        involve rights that either vested or accrued
        under the agreement while it was still in
        effect.  Consequently, the District is under
        no obligation to arbitrate the grievance and
        we need go no further.

   Teamsters Union Local #340 and Ralph Dobson v. Portland
   Water District, 651 A.2d 339, 341-342 (1994).
 
        In analyzing this issue in the Portland Water
   District case, the Law Court quoted extensively from
   the United States Supreme Court's decision in Litton
   Financial Printing Division v. N.L.R.B., in which the 


[end of page 5]
   

Supreme Court held that certain layoffs were not arbitrable under
the parties' expired collective bargaining agreement.  

        . . . In deciding that there was no
        obligation to arbitrate the layoff decisions,
        the [U.S. Supreme] Court held that the right
        to arbitration exists "only where a dispute
        has its real source in the contract.  The
        object of an arbitration clause is to
        implement a contract, not to transcend it." .
        . . "A post expiration grievance can be said
        to arise under the contract only where it
        involves facts and occurrences that arose
        before expiration, where an action taken
        after expiration infringes a right that
        accrued or vested under the agreement, or
        where, under normal principles of contract
        interpretation, the disputed contractual
        right survives expiration of the remainder of
        the  agreement."  Id. at 205-06.  The Court
        further stated that "arbitration is a     
        matter of consent and that it will not be
        imposed upon parties beyond the scope of
        their agreement."  Id. at 201.  Additionally,
        the Court noted that, "in the absence of a
        binding method for resolution of post     
        expiration disputes, a party may be relegated
        to filing an unfair labor practices charge
        with the [N.L.R.B.]."  501 U.S. 190, 115 L.
        Ed. 2d 177, 111 S. Ct. 2215 (1991).

   Teamsters Union Local #340 and Ralph Dobson v. Portland
   Water District, 651 A.2d 341-342 at fn.5.  One year
   later, the Law Court issued a similar decision
   upholding the trial court's refusal to compel
   arbitration because, 

        The trial court could not compel arbitration
        . . . for the simple reason that the Uniform
        Arbitration Act requires the existence of a
        written arbitration agreement. 14 M.R.S.A.
        §5927-5928 (1980). The only written contract
        between the parties had previously expired by
        its terms.

   MSEA v. Bureau of Employee Relations, 652 A.2d 654, 655
   (1995). 

[end of page 6]

        Thus, we can see the clear evolution of the legal
   status of grievance arbitration after the expiration of
   a collective bargaining agreement in Maine's public
   sector:  Prior to 1997, once a collective bargaining
   agreement had expired, the arbitration provision 
   continued only with respect to a grievance that
   "involves rights that vested or accrued, or facts or
   occurrences that arose while the collective bargaining
   agreement was in effect."  In 1997, the Legislature
   enacted §964-A which statutorily continued the
   arbitration provision beyond the expiration of the
   collective bargaining agreement for the limited purpose
   of addressing grievances arising out of disciplinary
   measures. . . 
     
        The 2005 amendment extended the statute so that
   the grievance arbitration provision continued in effect
   for all subjects that must remain in effect after the
   expiration of the collective bargaining agreement "by
   virtue of the static status quo doctrine". . . 

Sanford Prof'l Fire Fighters v. Town of Sanford, No. 11-04 (Jan.
28, 2011) pp. 3-5.
                       
   This brings us to the present case where we must determine
whether three specific provisions of the expired collective
bargaining agreement are enforceable under §964-A(2).  The
provisions at issue relate to payout of accrued sick time, payout
of clothing allowance balance, and payment of retiree health
insurance premiums. 
    
   The language stating that §964-A(2) only applies to those
issues that "are enforceable by virtue of the static status quo
doctrine" relates to the Law Court decision in Board of Trustees
of the University of Maine System v. Associated COLT Staff, 659A.2d 842
 (May 26, 1995).  In that case, the Law Court held that
the obligation to maintain the status quo does not include the
obligation to continue to pay step increases when there was no
express language in the expired agreement to do so.  The Law
Court overruled the Board's approach, which was referred to by
the Board as maintaining the "dynamic" status quo, because it 

[end of page 7]

required the University to pay automatic wage increases which
had not been bargained for or approved by the University.  The
Board's adoption of the "dynamic status quo" was a reversal of
the Board's previous application of a "static status quo" in
which the wages existing at the expiration of a contract were
frozen.  COLT, 659 A.2d at 843.  The Law Court held the Board's
order requiring the University to continue payment of step
increases "changes, rather than maintains, the status quo." 
COLT, 659 A.2d at 846.  Thus, the reference to "static status
quo" in §964-A(2) makes it clear that the holding of COLT must
be taken into account in determining the whether a particular
provision is enforceable.
 
   The statute assigns to the Board the role of resolving 
disputes over which provisions in the expired agreement can be
classified as falling under the doctrine of 'static status quo'
and are, therefore, enforceable under §964-A(2.  First, the
Board determines what the status quo is that must be maintained;
the arbitrator will then determine whether, in fact, there has
been a change from what was established in the contract.[fn]1 
This division of responsibility is appropriate, as the Board has
expertise on what constitutes a mandatory subject of bargaining
as well as on the duty to maintain the status quo, while
arbitrators' area of expertise is interpreting contracts. 
    
   There are two questions that the Board must address in
making its determination:  First, whether the provision of the 

   1 The relevant sentence in §964-A(2) is the second sentence: 
"In any arbitration that is conducted pursuant to this subsection, an
arbitrator shall apply only those provisions enforceable by virtue of
the static status quo doctrine and may not add to, restrict or modify
the applicable static status quo following the expiration of the
contract unless the parties have otherwise agreed in the collective
bargaining agreement."  

[end of page 8]

collective bargaining agreement at issue is a mandatory subject
of bargaining, and second, whether enforcement of the provision
at issue is precluded by the Law Court's holding in COLT.  With
respect to the first question, the obligation to bargain is not
limitless, but only extends to "to wages, hours, working
conditions and contract grievance arbitration," that is, the
mandatory subjects of bargaining.  26 M.R.S.A. §965(1)(C).  As
the duty to maintain the status quo while negotiating a
successor agreement is based on this same duty to bargain, there
is no obligation to maintain the status quo with respect to
permissive subjects of bargaining.  See, e.g., IAM District
Lodge #4 v. Town of Wiscasset, No. 03-14 (Oct. 14, 2003) at 5. 
There is a substantial amount of case law on what constitutes a
mandatory subject of bargaining.  The standard applied is
whether the issue is "significantly and materially related to" 
wages, hours, working conditions and contract grievance
arbitration.  Portland Firefighters v. City of Portland, No.
83-01 at 4 (June 24, 1983); aff'd 478 A.2d 297 (Me. 1984).

   Determining whether the post-expiration enforcement of a
particular provision is precluded by the Law Court's holding in
COLT may require a close examination of the specific language of
the collective bargaining agreement.  Before turning to the
three specific provisions at issue in the present case, we will
consider the analysis used in the Board's most important
decision applying COLT, MSEA v. City of Lewiston School
Department, No. 09-05 (Jan. 15, 2009), aff'd., City of Lewiston
School Department v. MSEA and MLRB, AP-09-001 (Oct. 7, 2009,
Androscoggin Superior Court, Delahanty, J.).  That decision 

[end of page 9]

provides a useful framework for applying COLT.[fn]2 

   In the Lewiston School Department case, the sole issue was
the impact of COLT on the amount the employer was required to
contribute to health insurance premiums when the collective
bargaining agreement had expired and the parties were
negotiating a successor agreement.  The expired collective
bargaining agreement had language that, in effect, had the
employer and the employees maintain the same proportionate share
of the premium cost for the duration of the three-year
agreement.  The Board rejected the employer's argument that
because the premium payment was an aspect of wages, the
employer's contribution to premiums in terms of dollars should
be frozen just as COLT requires the employer to freeze wages. 
The Board rejected this approach because freezing the employer's
contribution and requiring the employees to bear the full burden
of the increase in premiums resulted in a very significant
change to the wages of the employees.  The loss of take-home pay
on an annual basis ranged from $244 to $669 depending on the
level of insurance coverage.  As the Board noted:
    
   [W]here COLT represents a situation in which the
   Board's order was determined by the Law Court to be a
   significant change in the status quo, here it is the
   School Committee's stance on health insurance
   contributions that constitutes a significant change in
   the status quo.
              
Lewiston School Dept., No. 09-05 at 9. 
    
   The Board emphasized that the terms of the agreement 

   2  The only other Board decision directly addressing the impact
of COLT was an unsuccessful attempt by a union to show an express
agreement to continue step increases based on what the Board
considered "imprecise language" and "roundabout reasoning."  AFSCME v.
State of Maine, No. 03-13 at 22 (April 21, 2004).


[end of page 10]

regarding the premium cost-sharing established the status quo to
be maintained.  Lewiston School Dept., No. 09-05 at 11.  Even
though the School Department's premium obligation was not
specified as a percentage of the total premium, the terms of the
contract demonstrated that both parties anticipated increases in
premiums.  The agreement established a mechanism for sharing the
burden of those increases, so that the proportional share would
continue, as long as the premium did not increase over 13
percent.  The procedure established in the agreement was the
status quo that had to be maintained while a successor agreement
was being negotiated.  Lewiston School Dept., No. 09-05 at 9,
aff'd, Androsc. Sup. Ct, No. AP-09-001, Jan. 15, 2009 ("The MLRB
did not err in considering the terms of the Agreement and the
substantial impact of the change on the employees.")
 
   In considering the Lewiston School Department's argument
that the terms of the agreement supported its position, the
Board considered previous cases involving payment of health
insurance premiums where the terms of the expired agreement
determined whether the status quo was a fixed dollar amount or a
percentage of the premium:  
   
   For example, in Auburn School Support Personnel, the
   Board held that because the agreement "did not
   establish a procedure for determining insurance
   premium payments," such as saying that the employer
   would pay 100% of premiums, but simply stated a fixed
   dollar amount that the employer would pay, that dollar
   amount was the status quo. Auburn School Support
   Personnel, AFT v. Auburn School Committee, No. 91-12
   (July 11, 1991) at 11-12.  Similarly, in Teamsters v.
   City of Augusta, the agreement specified the dollar
   amount for the City's contribution to the health
   insurance plan for each of three years, followed by a
   statement that "the remainder, if any, will be paid by
   each employee using weekly payroll deductions."  No.
   93-28 (Jan. 13, 1994).  The Teamsters argued that
   because that dollar amount was 100% of the premium 


[end of page 11]

   cost, paying 100% was the status quo that must be
   maintained.  The Board concluded that there was "no
   way to consider the fixed dollar amounts in the
   contract as anything but a cap on the City's
   responsibility for insurance premiums", particularly
   in light of the "unequivocal" remainder language. 
   Teamsters v. City of Augusta, No. 93-28 at
   p.25-26.[fn]3  
     
Lewiston School Dept., No. 09-05 at 9-10.
                  
    
   Turning to the case at hand, the three provisions of the
expired collective bargaining agreement are Sick Leave, Article
11, section 2, regarding the payment of certain unused sick
leave hours; Clothing, Article 30, regarding the payout of any
unused clothing allowance; and Retiree Health Insurance, Article
12, section 3, which states the City will pay 100 percent of the
health insurance premium for certain retirees.[fn]3  We will
address each of these provisions in turn.  First, we will
consider whether these matters are mandatory subjects of
bargaining, and then, if necessary, we will address the impact
of COLT.

SICK LEAVE PAYOUT, ARTICLE 11, SECTION 2.
     
    Article 11, "Injuries and Sick Leave", Section 2, "Sick
Leave" of the Collective Bargaining Agreement that expired on
June 30, 2010, provides for the annual payout of excess sick
leave.  The language at issue is the third paragraph of section
2, which states:
    
    An employee who has accumulated one-hundred and twenty
    (120) days unused sick leave shall be remunerated on
    an annual basis for those days not used as sick leave
    in excess of 120.  The cut-off date for compensation


    3 The clothing allowance issue only pertains to the
Firefighters' contract; the other two provisions are in the contracts
for both the Firefighters and the Battalion Chiefs. 


[end of page 12]


     purposes shall be November 30 of the calendar year.

Jan. 1 - June 30, 2010, City of Augusta/Uniformed Firefighters,
Local 1650 Agreement, p. 13.

    We have previously held that sick leave is a mandatory
subject of bargaining.  In the 1981 MSAD #43 case, the Board
held that the employer was required to continue the practice of
crediting 12 sick leave days for the upcoming school year until
the parties executed a successor agreement or reached bona fide
impasse.[fn]4  MSAD #43 Board of Directors v. MSAD #43 Teachers
Association,[fn]5 No. 79-36 at 19 (March 18, 1981).  
 
    In the present case, the issue is not the sick leave
benefit itself, but the payout of unused sick time in excess of
the 120-hour maximum.  This aspect of the sick leave policy is a
form of compensation.  Presumably, it operates as an incentive
to encourage employees to stay healthy and refrain from misusing
their sick time.  For an employee whose accrued sick leave is
already at the 120-hour maximum, the amount of this additional
compensation can potentially reach the full annual accrual of
sick time of 10.5 hours per month, or 126 hours. 
     
    We conclude that this is a mandatory subject of bargaining
as it is "materially and significantly related to" wages, hours,
working conditions and contract grievance arbitration.  Portland
Firefighters v. City of Portland, No. 83-01, at 4 (June 24, 

    4  "Bona fide impasse" means the parties have exhausted the
statutory dispute resolution procedures and, despite their good faith
efforts, further bargaining would be futile.  See, Mountain Valley
Educ. Assoc. v. MSAD #43 and MLRB, 655 A.2d 348, 352 (Me. 1995).

    5 In MSAD #43, the Board also noted: "If a larger or smaller
number of sick leave days was provided for in the successor contract,
then the Directors could permissibly change each teacher's accumulated
sick leave total to reflect the number of negotiated sick leave days."
MSAD #43, No. 79-36 at 19.

[end of page 13] 

1983); aff'd 478 A.2d 297 (Me. 1984).  Like Lewiston,
eliminating this potential earning is a substantial change in
the status quo, as there is a very real potential loss of
income.  The sick time payout provision is enforceable under
§964-A(2) by virtue of the static status quo because
continuation of this provision is necessary to maintain the
existing level of wages, unlike the step increases in COLT,
which changed wages.

CLOTHING ALLOWANCE PAYOUT, ARTICLE 30.
     
    The clothing provision in Article 30 of the collective
bargaining agreement states, "All clothing deemed necessary to
employment will be paid by the City," specifies those items
issued to new Firefighters, and establishes an annual uniform
allowance.  The practice at issue is the payment to the employee
of the balance of the allowance at the end of the year:

    Effective at the beginning of each fiscal year, an
    employee will be credited with an annual uniform
    allowance to be available for alterations, replacement
    and supplementation of the Firefighters uniform. 
    After twelve months of service, new hires will be paid
    on a prorated basis based on number of months through
    the next July 1.  The annual uniform account allowance
    is $475 per year.  The uniform account may be used to
    purchase, through the Augusta Fire Department, either
    required items as set out in the list below or other
    uniform items as approved by the Fire Chief.
    . . . 
    By May 1 of each year, employees will demonstrate
    [that they have the required items in good condition
    and in proper fit.] Once satisfying this requirement,
    if any balance remains in an employee's 'account',
    employees will be paid such balance in a lump sum
    amount by June 30 of each year.  This will be paid
    through the payroll system subject to income taxes and
    any other deductions as mandated by federal and state
    law."
    

[end of page 14]


Jan. 1 - June 30, 2010, City of Augusta/Uniformed Firefighters,
Local 1650 Agreement, p. 22-23.

    We have previously held that furnished clothing required
for the job is a form of compensation and therefore a mandatory
subject of bargaining.  See Auburn Firefighters Assoc. (IAFF) v.
Paul Valente and City of Auburn, No. 87-19 at 8 (Sept. 11, 1987)
and Council 74, AFSCME v. Ellsworth School Committee, No. 81-41
at 14 (July 23, 1981).  The provision at issue in the expired
contract here, which presumably operates as an incentive to
employees to keep their uniforms in good condition and maintain
their physical fitness, offers potential compensation of as much
as $475.  This earning potential is a form of wages and is a
mandatory subject of bargaining.  Eliminating this potential
earning results in a substantial change in the status quo, as
there is a very real potential loss of income.  The status quo
that must be maintained is the annual allowance and the
mechanism for paying employees the amount of their balance on an
annual basis.  The clothing allowance is enforceable under §964-
A(2) by virtue of the static status quo doctrine. 
  
    The City's argument that both the sick time payment and the
clothing allowance payment are "extras" and need not be
continued is unavailing.  The City contends that it is only
obligated to continue tracking unused sick time and the
remainder of the uniform allowance that had existed when the
collective bargaining agreement expired and that it is not
obligated to make any payments until a new payment mechanism is
negotiated.  In making this argument, the City is confusing the
enforceability of an expired collective bargaining agreement
with the obligation to maintain the status quo.  The City's
argument actually parallels the language used by the U.S.
Supreme Court in Litton Financial Printing, when the Court 

[end of page 15]

stated that a contractual right survives the expiration of the
agreement if the right accrued or vested while the agreement was
still in effect.  Litton 501 U.S. at 205-06, quoted in Portland
Water District, 651 A.2d 341-42 at fn. 5.  Adopting the City's
argument in this case would not only make §964-A(2) a nullity,
it would eviscerate the obligation to maintain the status quo. 
The only subjects for which the City's approach could be valid
would be permissive subjects of bargaining, as the duty to
bargain and the duty to maintain the status quo does not apply
to permissive subjects.  
   
    Labeling something as "extras" has no legal significance to
this Board.  Presumably, in using that term, the City is
indicating that it does not consider the payout of portions of
unused sick time or the balance of an employees clothing
allowance to be an essential part of the compensation package. 
That may be an argument to support the City's position at the
bargaining table, but it is not relevant to the legal analysis
here.  The importance the City places on these items has no
bearing on whether they are mandatory subjects of bargaining nor
does it affect the City's obligation to maintain them as part of
the static status quo.   
 
    Finally, calling the continuation of these two provisions a
"substantial concession" like that found to be improper in COLT
is just another way of misconstruing the holding of that case.
The "substantial concession" that the Law Court found to be a
significant change to the status quo was the payment of step
increases imposed by the Board.  Here, our conclusion that the
status quo requires the City to continue to pay amounts that it
had agreed to pay under the terms of the expired agreement does
not impose any sort of concession upon the City or require the
City to alter its bargaining position.  It simply requires the 

[end of page 16]

City to maintain the status quo until a successor agreement is
reached or until the parties have reached bona fide impasse.
    
RETIREE HEALTH INSURANCE PREMIUM, ARTICLE 12.
 
    The final provision that we must review in this status quo
determination establishes the employer contribution to retiree
health insurance.  The provision of expired collective
bargaining agreement at issue is subsection 3 of Article 12:

RETIREE HEALTH INSURANCE

    Article 12, Insurance Benefits, 
    Section 3 - Retirement Health: Employees hired before
    March 1, 1991 - When a firefighter retires with a
    minimum of twenty (20) years of creditable service
    with the City of Augusta, Fire Department, and in good
    standing, the City will pay 100% of employee hospital
    insurance benefits until such time as eligible for
    Medicare coverage.  Dependent coverage may be picked
    up at group rate at employee's full cost.
 
    Employees hired by the Fire Department between March
    1, 1991 and December 31, 2005 - When a firefighter
    retires with a minimum of twenty-five (25) years of
    creditable service with the City of Augusta, Fire
    Department, and in good standing, the City will pay
    100% of employee hospital insurance benefits until
    such time as eligible for Medicare coverage. 
    Dependent coverage may be picked up at group rate at
    employee's full cost.

    Employees hired by the Fire Department on or after
    January 1, 2006 are not eligible for any city
    contribution toward retiree health insurance.

    Employees hired by the Fire Department on or before
    December 31, 2005: After such time the employee is
    accepted for Medicare coverage, the City will pay 100%
    of the reduced premium for the employee only. 
    Dependent coverage may be picked up at group rate at
    employee's full cost. 

[end of page 17]

Jan. 1 - June 30, 2010, City of Augusta/Uniformed Firefighters,
Local 1650 Agreement, p. 14.

    This Board has never issued a decision on whether health
insurance benefits for retirees is a mandatory subject of
bargaining.  We did, however, issue an Interpretive Ruling on
that specific subject in the 1992 Millinocket Interpretive
Ruling, No. 92-IR-01 (July 13, 1992).  That analysis is still
valid, as is our conclusion in that Ruling that future
retirement benefits for current employees is a mandatory subject
of bargaining.  In that Interpretive Ruling, the Board concluded
that because retirees are not "public employees" under the Act,
employers are not obligated to bargain over benefits for those
who have already retired from employment.  Millinocket, No. 92-
IR-01 at 9.  The Board continued: 
     
            That does not end the inquiry, however.  Certainly
         the parties to a contract may, if they so choose,
         "agree to the accrual of rights during the term of an
         agreement and their realization after the agreement
         has expired."  Nolde Bros. v. Local No. 358, Bakery &
         Confectionery Workers Union, 430 U.S. 243, 249 (1977)
         (regarding severance pay, a benefit realized when a
         company goes out of business and its employees are
         terminated), quoting John Wiley & Sons v. Livingston,
         376 U.S. 543, 555 (1964) (concerning benefits such as
         severance pay and retirement pension).  More
         specifically, they may agree to the accrual of rights
         during the term of an agreement and their realization
         upon or after retirement -- pensions, for instance,
         are clearly a mandatory subject of bargaining under
         the MPELRL if they are bargained for on behalf of
         employees -- persons who eventually will retire from
         employment, but have not yet done so.  Thus, if an
         employer and a bargaining agent bargain over retiree
         health insurance so as to make it clear that they are
         doing so on behalf of (for the benefit of) bargaining
         unit members, Pittsburgh Plate Glass is inapplicable.

            In Pittsburgh Plate Glass, the union attempted to
         stop the employer from going directly to persons
         already retired and offering them pension options 

    
[end of page 18]


    other than those they were entitled to under contracts
    negotiated while they were employees.  As the Court
    pointed out, pensioners had no obligation to agree to
    any changes, and could pursue enforcement of their
    contracts with the employer in court, if necessary. 
    Pittsburgh Plate Glass, 404 U.S. at 181, n.20. 
    However, the union had no authority to pursue the
    matter on behalf of the pensioners, since as retirees,
    they were no longer represented by the union. 
    Nevertheless, in so holding, the Court recognized that
    "[tlo be sure, the future retirement benefits of
    active workers are part and parcel of their overall
    compensation and hence a well-established statutory
    subject of bargaining."  Id. at 180.
         
Millinocket, No. 92-IR-01 at 9-10.
     
    We now hold that the retiree health insurance, to the
extent that it is a future benefit for active employees, is a
mandatory subject of bargaining.  We also hold that the terms of
the expired collective bargaining agreement, that is, that the
City will pay 100 percent of the premium, is the status quo that
is enforceable under the terms of §964-A(2).  The analysis
presented in the Lewiston School Department case, and affirmed
by the Superior Court, is applicable here.  The terms of the
expired agreement clearly state that the City will pay 100
percent of the premium costs.  COLT has no effect here because
the City is merely required to continue the pay the same
proportion that it had been paying, that is, 100 percent.
   
    The fact that the dollar value of that 100 percent may have
increased is not relevant to the determination of the status quo
that must be maintained or to the determination of whether COLT
alters the obligation.  The parties could have negotiated a
mechanism for addressing premium increases after the expiration 

[end of page 19]

of the agreement, as they did for active employees[fn]6, but
they did not.  Contrary to the City's assertion, COLT does not
prohibit any sort of increase having a financial impact, it
merely prohibits changing the status quo.
     
    The City's argument that it is only obligated to continue
the benefit for those who had already retired or those who had
vested, again, confuses the contractual enforceability of an
agreement with the obligation to maintain the status quo and the
corresponding obligation under §964-A(2).[fn]7  The concept of
vesting is unrelated to the determination of the status quo that
enforceable under §964-A(2).  The City attempts to have us read
the collective bargaining agreement to say 'for those who retire
before the expiration of this agreement, the City will pay 100
percent of the health insurance premium.'  But the agreement
does not say that -it says the City will pay 100 percent of the
premium when the fire fighter retires, if certain conditions are
met.  That is the status quo that must be maintained by the City
until a new agreement is reached or the parties are at bona fide
impasse.  There is no condition stated in the agreement that the
individual must retire prior to the expiration of the contract. 
     
    In summary, we conclude that the three provisions in the
parties' expired collective bargaining agreement are all
"enforceable by virtue of the static status quo doctrine" under
§964-A(2).  In doing so, we are not requiring the City to agree
to any particular terms in the negotiations underway.  We have 

    6  The agreement states that until a successor agreement is 
reached, the City will pay 60 percent of any increase in premiums,
with the employee assuming the remainder, up to a cap of $5 per week.

    7 Tellingly, the only case the City cites in support of its
position is not a status quo case, but an effort to enforce a contract
after its expiration under §301(a) of the Labor Management Relations
Act.  Winnett v. Caterpillar, Inc., 553 F.3d 1000, (6th Cir. 2009).

[end of page 20] 

previously noted that the obligation to maintain the status quo
does not require either party to adopt any portion of the status
quo as part of the successor agreement.  Maine Employees United
v. City of Saco, No. 11-02 at 14 (March 29, 2011).  
         
                             ORDER
    
    On the basis of the foregoing 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. §964-A(2), it is hereby
ORDERED that the provisions of the collective bargaining
agreement that expired on June 30, 2011, covering the payout of
accrued sick time, the payout of clothing allowance balance, and
payment of retiree health insurance premiums are enforceable by
virtue of the static status quo doctrine pursuant to 26 M.R.S.A.
§964-A(2).   

Dated at Augusta, Maine, this 15th day of December, 2011.