On December 5, 2016, Teamsters Local Union No. 340, the 
bargaining agent for the RSU 67 Janitor and Groundskeeper Unit, 
filed a request for post-expiration grievance arbitration with 
the State Board of Arbitration and Conciliation ("BAC").  The 
issue presented by the grievance was the amount of the health 
insurance premium to be paid by each party.  

     On December 22, 2016, RSU 67 filed a letter with the 
Executive Director of the Maine Labor Relations Board (who also 
serves as the executive director of the BAC) challenging the 
substantive arbitrability of the grievance.  On that same day, 
the Executive Director initiated a telephone conference call 
with the Teamsters' Business Agent, Ms. Traci Place, and Counsel 
for RSU 67, Peter Felmly, during which they discussed the 
applicability of §964-A(2) of the Municipal Public Employees 
Labor Relations Law, 26 M.R.S. §961 et seq. (the "Act"). 
Following this conference call, the Executive Director issued a 
letter specifying a time frame for the parties to file written 
argument concerning the health insurance premium issue to be 
addressed by the Board pursuant to §964-A(2).   

[end of page 1]

	
     Section §964-A(2) states, in full:

     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. 

26 M.R.S. §964-A(2)(emphasis added).


                          JURISDICTION
 
     A status quo determination arises when there is a request 
for arbitration and the parties disagree on whether a particular 
provision in the expired collective bargaining agreement is 
enforceable by virtue of the static status quo doctrine.  Here,  
there is a request for arbitration and the parties disagree on 
whether the provision in the expired agreement regarding payment 
of health insurance premiums is within the scope of the static 


[end of page 2]


status quo doctrine.  Therefore, the Board has jurisdiction to 
make this determination.

 
                           DISCUSSION


     The terms of §964-A(2) make it clear that the Board's role 
is simply to make a determination on whether a provision of an 
expired agreement is enforceable in arbitration.  As we 
explained in IAFF v. City of Augusta, 

     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.   
     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.[fn]1

IAFF Local 1650 v. City of Augusta, No. 11-03SQ at 8 (Dec. 15, 
2011), aff'd City of Augusta v. MLRB et al., 2013 ME 63 ¶12 
("The Board is the proper entity to rule on questions about 
whether a particular provision [. . .] remains in force due to 
the static status quo doctrine.")
    
     A status quo determination involves answering two
questions:  First, is the provision of the collective bargaining 
agreement at issue a mandatory subject of bargaining, and 
second, is enforcement of that provision precluded by the Law 
Court's holding in Board of Trustees of the University of Maine
 

[fn]1  In RSU No. 38 School Board v. Maranacook Area Schools Assoc., No. 14-19SQ, 
Interim Order at 1 (March 21, 2014), the Board explained, "The Board's deter-
mination does not resolve a grievance, it is merely the mechanism for ruling 
on whether the issue is arbitrable under §964-A(2)."


[end of page 3]


System v. Associated COLT Staff, 659 A.2d 842 (May 26, 1995) 
("COLT").
  
 
     The mandatory subjects of bargaining are defined in the Act 
as "wages, hours, working conditions and contract grievance 
arbitration." 26 M.R.S. §965(1)(C).  There is no dispute that 
the provision at issue is a mandatory subject of bargaining.
 
     Answering the second question requires an understanding of 
the reach of the Law Court's holding in COLT.  In COLT, the Law 
Court held that the duty to maintain the status quo does not 
include the obligation to continue to pay step increases when 
there is no express language to do so in the expired agreement.  
The Law Court overturned the Board's holding that step increases 
must be continued as part of the "dynamic status quo."  The Law 
Court explained that the Board's holding "changes, rather than 
maintains, the status quo."  COLT, 659 A.2d at 846.  
 
     In the present case, the provision in the expired 
collective bargaining agreement between the parties that is the 
subject of the grievance is Article 28, paragraph B.  After 
stating in paragraph A that the Employer will provide health 
insurance coverage to full-time employees scheduled for 30 hours 
or more per regular week, paragraph B states:

     B. The amount paid by the Employee shall be $100.00 
     per month towards the cost of the plan the employee 
     chooses (full family, two person, adult with 
     child(ren) and single), with the Board's contribution 
     being the remainder of the monthly premium for the FY 
     2013-2014. For FY 2014-15 and FY 2015-2016, the 
     employee shall pay $100 per month plus any increase in 
     rates 100%.

     We have considered the express terms of this article and 
the other articles in the contract.  Our determination of the
 

[end of page 4]



status quo that must be maintained while the parties are 
negotiating a new contract is that the Employer's payments must 
remain the same and the employee must pay the monthly amount he 
or she had been paying at the expiration of the agreement, plus 
100% of any increase in rates for FY 2016-2017.[fn]2  This is the 
status quo enforceable pursuant to §964-A(2).

     The Law Court's decision in City of Augusta affirmed the 
Board's status quo determination on a very similar provision 
providing health insurance for retirees.  2013 ME 63, aff'g IAFF 
v. Augusta, No. 11-03SQ.  There, the agreement provided that, 
for certain employees who retire, "the City will pay 100% of 
employee hospital insurance benefits."  The Law Court held that 
the status quo that must be preserved for someone who retires is 
the benefit in place for retirees "as set forth in the expired 
agreement." 2013 ME 63, ¶19.  The Court went on to say: 

     If the parties had negotiated an agreement that 
     explicitly restricted the payment of retiree health 
     insurance benefits to the term of the agreement, the 
     City's argument would have traction.  Similarly, if 
     the contract required the City to pay an amount 
     certain, rather than 100%, the City's expenses would 
     not increase with rising insurance costs. 

2013 ME 63, ¶20.

     The Union argues that the references to each of the three 
fiscal years in the health insurance provision demonstrate that 
the parties did not intend the calculation of the employees' 
share to continue past those three years.  The problem with that a
rgument is that there is nothing in the agreement, either in 
Article 28(B) or elsewhere, that is an explicit statement of how 


[fn]2  If the parties are still negotiating their successor agreement beyond the 
end of FY 2016-2017, the employees' monthly contribution would include any 
further increase in the premium. 


[end of page 5]


the payment of health insurance premiums would be shared 
following the end of the last fiscal year specified or after the 
expiration of the agreement.  Specifying the three fiscal years, 
without more, does not support the Union's position.  The status 
quo to be maintained is the provision in effect at the 
contract's expiration.[fn]3  

     The Union also argues that the pay increases in the second 
and third year of the contract were intended to help employees 
offset the increases in health insurance premiums borne by the 
employees.  The Union contends that coupling the two provisions 
should continue post expiration to ease the impact of continuing 
the health insurance provision on the employees' take-home pay.  
There is, however, nothing in the expired agreement to support 
the Union's argument that the two items are bound together.  
If there were an express statement of the parties' intent to 
include wage rates in the post-expiration calculation of 
employees' share of health insurance premiums, the outcome could 
have been different.  Because there is not, the Board must apply 
the plain meaning of Article 28(B).

     The Union's assertion that the parties should share the 
premium increase in the same proportion that the premium had 
been shared in the final year of the contract is not consistent 
with the terms of the expired agreement.  In MSEA v. Lewiston 
School Department, the terms of the expired agreement expressly 
stated that each party's share of the premium would increase at 
the same percentage as the overall premium.  The Board concluded 


[fn]3  In IAFF v. Augusta, the Law Court cited Teamsters v. City of Augusta, No.
93-28 at 24-26 (Jan 13, 1994) when explaining, "[t]he static status quo is 
also maintained, as the Board held before our decision in COLT, when a 
government employer continues to pay the specific dollar amount for active 
employees' health insurance set forth in an expired collective bargaining 
agreement that defines the benefit in specific dollar amounts rather than a 
percentage." 2013 ME 63, ¶18.


[end of page 6]


that was the status quo to be maintained. No. 09-05 at (Jan. 15, 
2009), aff'd, Lewiston School Dept. v. MSEA and MLRB, AP-09-001 
(Me. Sup. Ct., Andr. Cty., Oct. 6, 2009).  To do the same here, 
as the Union suggests, would change the status quo, not maintain 
it, as the Employer's share is clearly a fixed dollar amount. 

     Based on the language of Article 28(B), the status quo to 
be maintained is the Employer continuing payments at the same 
dollar amount and the employee paying the monthly amount he or 
she was paying at the expiration of the agreement, plus 100% of 
any increase in rates for FY 2016-2017.  This status quo is 
enforceable pursuant to §964-A(2).

Dated at Augusta, Maine, this 27th day of February 2017

	

 

[end of page 7]