Complainant Sanford Professional Firefighters, Local 1624,
("Union") filed a prohibited practice complaint on September 10,
2010, in which it alleged that the Town of Sanford violated the
Municipal Public Employees Labor Relations Law ("Act") by uni-
laterally changing the methodology used to calculate eligibility
for overtime pay for the bargaining unit members.  Specifically,
the Union alleges that the conduct constituted a refusal to
bargain in violation of 26 M.R.S.A. 964(1)(E) as well as an
interference with rights guaranteed by the Act in violation of
964(1)(A).  The conduct complained of occurred in March of 2010,
several months after the expiration of the parties' collective
bargaining agreement and while the parties were negotiating a
successor agreement.  The Union filed a grievance over this
matter, which is scheduled for arbitration on February 11, 2011.
   
     The Town of Sanford filed a response to the complaint in
which it moved to defer to arbitration.  A prehearing conference
was held on December 17, 2010, with Board Chair Peter T. Dawson
presiding, to discuss this issue and take oral argument on the
motion to defer, pursuant to Board Rule Chapter 12, 10(6).  
The Union was represented by John S. Krupski, Esq., and the Town
was represented by Bryan M. Dench, Esq.

[end of page 1]
                                             

     This case is the first time we have been asked to consider
the effect of section 964-A of the Act regarding the continuation
of  a grievance arbitration provision following the expiration of
a collective bargaining agreement.  This section, set forth in its
entirety below, was enacted in two stages:  The essence of what is
now sub-section 1 was enacted in 1997,[fn]1 while sub-section 2
was enacted in 2005.
     
     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.
     
          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 sub-
     section, 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. 
     
     1  As enacted in 1997, 964-A stated "If a contract between a
public employer and a bargaining agent 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." P.L. 1997, ch. 773, 1.

[end of page 2]


     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 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 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.

          Dobson's grievance did not arise until approxi-
     mately 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

[end of page 3]

 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 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 4]
     
     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.  P.L. 1997 c. 773, 1.  As a result, grievances related
to disciplinary matters that occurred after the expiration of the
collective bargaining agreement could proceed to arbitration.
     
     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".  This language refers to the principle first articu-
lated in Lane, cited above, that upon the expiration of a
collective bargaining agreement, the statutory duty to bargain
"requires the parties to maintain the status quo until either a
new contract is ratified, or the negotiations reach a bona fide
impasse."  Lane v. MSAD #8, 447 A.2d 806 (Me. 1982).  Thus, 964-A
now dictates that those provisions of the expired agreement that
remain in effect by virtue of the static status quo doctrine are
enforceable through arbitration.[fn]2  Consequently, grievances
regarding any of those provisions based on conduct occurring after
the expiration of the collective bargaining agreement can proceed 

     2  The original bill that led to the 2005 enactment of 964-A
would have imposed an "evergreen" clause, thereby keeping the entire
contract in effect while a successor agreement was being negotiated.
L.D. 1123, H.P. 776 (122nd Legislature).

[end of page 5]

to arbitration.
     
     It was not until the amendment of 2005 that the statute
created a specific role for this Board in post-expiration
arbitration issues.  P. L. 2005, c. 324, 1.  The role assigned to
the Board in this new post-expiration arbitration process is to
determine which provisions are enforceable:

          . . . 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.
          
     There is some logic to this assignment, as the Board is the
entity with the most expertise on whether a particular subject is
a mandatory subject of bargaining, while arbitrators' area of
expertise is interpreting contracts.    
           
     The parties do not dispute that the subject of the grievance,
that is, the methodology used for calculating eligibility for
overtime pay, is subject to the static status quo doctrine.  We
agree with this conclusion.  Consequently, as the grievance
involves a provision enforceable by virtue of the static status
quo doctrine, 964-A requires the matter to be decided by an
arbitrator.         
     
     We note that the case before us was not presented as a
request to resolve a dispute arising under 964-A over whether a
provision of the expired contract is subject to the static status
quo doctrine,[fn]3 but it clearly raises questions regarding the
scope and meaning of 964-A(2) itself.  The provision is within
the statute that the Board is charged with enforcing and
administer-

     3  The Board has not adopted any procedural rules specific to the
issues raised in 964-A.

[end of page 6]

ing; therefore, it is within the Board's authority to interpret it
in the first instance.  Our analysis of the intent and effect of
964-A presented above reflects our expertise in the subject area
and our understanding of the legislative intent.
      
     Turning to the Motion to Defer to Arbitration, the prohibited
practice complaint filed with this Board involves the same conduct
as is addressed in the grievance.  The Union stated at oral
argument that it did not have the luxury of waiting until the
arbitration was complete to file a prohibited practice complaint
because of the short six-month statute of limitations in the Act. 
Thus, in this respect, the Board is presented with a very typical
Collyer type of deferral question:  Should the Board defer to a
pending arbitration when the issue presented to the arbitrator is
centered on the meaning of the collective bargaining agreement? 
In Collyer, the NLRB held that pre-arbitral deferral was
appropriate if:  "(1) the dispute arose within the context of a
long and productive collective bargaining relationship, (2) there
was no claim that the employer was displaying enmity towards the
employees' exercise of their statutory rights, (3) the employer
credibly asserted its willingness to resort to arbitration, and
(4) the dispute centered on the collective bargaining agreement
and its meaning." MSEA v. City of Lewiston School Dept., No. 90-12
at 14, citing Collyer Insulated Wire, 192 NLRB 837 at 842 (1971). 
The only one of these factors not fully satisfied is the
Employer's willingness to resort to arbitration.
 
     The Union noted in its complaint and at oral argument that at
each step of the grievance procedure, the Employer has argued that
the issue is not arbitrable[fn]4 because both the alleged breach
and the filing of the grievance occurred after the collective 

     4  It appears that the Employer has argued that the matter was not
only not arbitrable, but that it was not grievable either.  These are
distinct questions; our concern at this moment is arbitrability.

[end of page 7]

bargaining agreement had expired.  At oral argument, the Employer
indicated that although it will participate fully in the
arbitration, it does intend to argue to the arbitrator that the
grievance is not arbitrable.  
     
     The Employer noted in oral argument that it does not want to
be forced to deal with simultaneous proceedings addressing the
same issue.  The Employer stated it is agreeable to have a
deferral that preserves the right of the union, subject to the
outcome of the arbitration, to come back to the Board to present
legal issues that are uniquely within the purview of the Board. 

     In light of these circumstances, the Board will grant the
motion to defer to arbitration in this matter and will hold the
prohibited practice complaint in abeyance until the arbitration
decision is issued.  At that time, the Union may petition this
Board for a determination of what, if any, further action is
required of this Board.

Dated at Augusta, Maine, this 28th day of January, 2011.