Maine State Employees Association v. City of Lewiston and Lewiston School Committee, MLRB Nos. 92-17 & -18 (Sept. 11, 1992), Order Denying Respondents' Motion to Dismiss, No. CV-92-400 (Me. Super. Ct., And. Cty., Nov. 30, 1992), Order Granting Motion for Temporary Restraining Order, Nos. CV-92-480 & -400 (Jan. 21, 1993), Decision Vacating Board Order, Nos. CV-92-400 & -480 (Feb. 25, 1993), Law Court Decision Vacating Superior Court Decision for Lack of Jurisdiction, sub nom, City of Lewiston v. Maine State Employees Association, 638 A.2d 739 (Me. 1994) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 92-17 and -18 Issued: September 11, 1992 _______________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) ) CITY OF LEWISTON ) ) DECISION AND ORDER and ) ) LEWISTON SCHOOL COMMITTEE, ) ) Respondents. ) _______________________________________) On December 30, 1991, the Maine State Employees Association ("MSEA") filed two prohibited practice complaints with the Maine Labor Relations Board ("Board"), one against the City of Lewiston ("City") and the other against the Lewiston School Committee ("School Comittee"). The complaints allege that upon expiration of the collective bargaining agreement between the parties, the employers unilaterally, and without reaching impasse in negotiations for a successor contract, suspended all step and anniversary increases for their respective employees, in violation of sections 964(1)(A) and (E) of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(A) and (E) (1988). The respondents denied the allegations. In addition, they asserted that MSEA had failed to exhaust its grievance arbitration remedies and that the complaints are, or may be, barred by the applicable statute of limitations.1 On January 28, 1992, complainant and respondents jointly requested that the two matters be consolidated and that they also be stayed until thirty days after Superior Court resolution of the appeal in another matter in which similar legal issues had arisen. Both requests were granted. Upon resolution (withdrawal) of that appeal, the parties were so informed, and on May 18, 1992, met with staff attorney Judith A. Dorsey for the purpose of attempting to reach a stipulated record. Timothy L. Belcher, Esquire, accompanied by negotiator Pamela Morin, represented MSEA, and Alfred C. _______________________ 1The respondents have since dropped these defenses. -1- Frawley, Esquire, accompanied by Assistant City Administrator Mark Adams, represented both the City and the School Committee. Through the diligent effort and cooperation of the parties, a stipulation of relevant facts was reached, obviating the need for an evidentiary hearing. Those stipulations have been incorporated herein. The parties filed posthearing briefs and replies, the last of which was received on July 13, 1992. The Board, consisting of Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson, deliberated the case on August 6, 1992, having reviewed the factual stipulations, contracts and briefs submitted by the parties. JURISDICTION The jurisdiction of the Board to hear these consolidated cases and to render a decision and order lies in 26 M.R.S.A. 968(5) (1988 and Supp. 1991). STIPULATIONS 1. MSEA is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for the general government bargaining unit, which consists of employees of the City of Lewiston and employees of the Lewiston School Committee. The City and the School Committee are both public employers, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991), as amended by P.L. 1992, ch. 843, of their respective employees in the unit. 2. The first collective bargaining agreement between MSEA and the respondent employers took effect on December 20, 1984, after MSEA was elected to be the bargaining agent for the unit. It expired on December 24, 1986 ("84-86 agreement"). Two successor agreements have been nego- tiated and implemented, the last of which expired on June 30, 1991. 3. The three collective bargaining agreements submitted by the parties as exhibits are true and correct copies of all collective bargaining agreements between the parties to date. 4. For the successor agreement covering the period December 25, 1986 to June 30, 1989 ("86-89 agreement"), negotiations extended beyond the expiration date of the prior agreement. Pay to unit members after expira- tion remained at the dollar amounts of pay as of the last date of the expired contract, until the successor contract was agreed to and imple- mented. By the terms of the 86-89 agreement, after its execution on April -2- 29, 1988, each employee was paid "an amount equal to 2.7% of the gross wages earned by said employee during the period from January 1, 1987 to June 30, 1987." New salary scales negotiated under the 86-89 agreement went into effect on July 1, 1987. 5. For the second successor agreement (covering the period July 1, 1989 to June 30, 1991), negotiations again extended beyond the expiration date of the prior agreement. Once again, pay to unit members after expira- tion remained at the dollar amounts of pay as of the last date of the expired contract. Once the new contract was signed on December 7, 1989, employees were paid, retroactive to July 1, 1989, under the new salary scales contained in the new agreement. 6. In any instance where a January or July step increase became due during negotiations for a successor contract, said step increase was retro- actively implemented once the successor contract was signed. 7. Negotiations for a successor to the 89-91 agreement began on April 23, 1991. 8. On June 18, 1991, at the request of MSEA, the parties agreed to place wage negotiations in "hiatus" until agreements were reached between the respondents and other bargaining agents representing employees of the respondents. From July through September of 1991 the parties did meet on three occasions to negotiate over contract matters. All other meetings between the parties, which continue to this date, have been informational only. No impasse has been reached in the negotiations. 9. Employees of the general government unit are continuing to receive the dollar amount of wages that they were receiving on the last day of the expired 89-91 agreement. FINDINGS OF FACT Upon review of the contracts placed in the record as exhibits, the Board makes the following additional findings: 1. Wage plans in the three contracts are as follows: -3- 84 - 86 AGREEMENT WAGE PLAN APPENDIX B, Page 2 EFFECTIVE DECEMBER 20, 1984 Class Step Grade ______________________________________________________ I II III IV V VI* VII** G - 5 Hrly 4.92 5.07 5.17 5.27 5.38 5.49 5.71 37.5 184.50 190.13 193.88 197.63 201.75 205.88 214.13 40.0 196.80 202.80 206.80 210.80 215.20 219.60 228.40 G - 6 Hrly 5.09 5.25 5.35 5.45 5.57 5.68 5.91 37.5 190.88 196.88 200.63 204.38 208.88 213.00 221.63 40.0 203.60 210.00 214.00 218.00 222.80 227.20 236.40 G - 7 Hrly 5.27 5.43 5.54 5.65 5.76 5.88 6.12 37.5 197.63 203.63 207.75 211.88 216.00 220.50 229.50 40.0 210.80 217.20 221.60 226.00 230.40 235.20 244.80 G - 8 Hrly 5.45 5.62 5.73 5.84 5.96 6.09 6.33 37.5 204.38 210.75 214.88 219.00 223.50 228.38 237.38 40.0 218.00 224.80 229.20 233.60 238.40 243.60 253.20 G - 9 Hrly 5.65 5.82 5.93 6.05 6.17 6.30 6.55 37.5 211.88 218.25 222.38 226.88 231.38 236.25 245.63 40.0 226.00 232.80 237.20 242.00 246.80 252.00 262.00 G - 10 Hrly 5.84 6.02 6.14 6.26 6.39 6.52 6.78 37.5 219.00 225.75 230.25 234.75 239.62 244.50 254.25 40.0 233.60 240.80 245.60 250.40 255.60 260.80 271.20 G - 11 Hrly 6.05 6.23 6.36 6.48 6.61 6.75 7.02 37.5 226.88 233.62 238.50 243.00 247.88 253.12 263.25 40.0 242.00 249.20 254.40 259.20 264.40 270.00 280.80 G - 12 Hrly 6.26 6.45 6.58 6.71 6.84 6.98 7.26 37.5 234.75 241.88 246.75 251.63 256.50 261.75 272.25 40.0 250.40 258.00 263.20 268.40 273.60 279.20 290.40 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. WAGE PLAN APPENDIX B, Page 3 EFFECTIVE DECEMBER 20, 1984 Class Step Grade ___________________________________________________________ I II III IV V VI* VII** G - 13 Hrly 6.48 6.68 6.81 6.94 7.08 7.23 7.52 37.5 243.00 250.50 255.38 260.25 265.50 271.13 282.00 40.0 259.20 267.20 272.40 277.60 283.20 289.20 300.80 G - 14 Hrly 6.71 6.91 7.05 7.18 7.33 7.48 7.78 37.5 251.63 259.13 264.38 269.25 274.88 280.50 291.75 40.0 265.40 276.40 282.00 287.20 293.20 299.20 311.20 G - 15 Hrly 6.94 7.15 7.29 7.43 7.59 7.74 8.05 37.5 262.25 268.13 273.38 278.63 284.63 290.25 301.88 40.0 277.60 286.00 291.60 297.20 303.60 309.60 322.00 G - 16 Hrly 7.18 7.40 7.55 7.69 7.85 8.02 8.34 37.5 269.25 277.50 283.13 288.38 294.38 300.75 312.75 40.0 287.20 296.00 302.00 307.60 314.00 320.80 333.60 G - 17 Hrly 7.43 7.66 7.81 7.96 8.13 8.30 8.63 37.5 278.63 287.25 292.88 298.50 304.88 311.25 323.63 40.0 297.20 306.40 312.40 318.40 325.20 332.00 345.20 G - 18 Hrly 7.69 7.93 8.09 8.24 8.41 8.57 8.93 37.5 288.38 297.38 303.38 309.00 315.38 321.38 334.88 40.0 307.60 317.20 323.60 329.60 336.40 342.80 357.20 G - 19 Hrly 7.96 8.21 8.37 8.53 8.71 8.89 9.24 37.5 298.50 307.88 313.88 319.88 326.63 333.38 346.50 40.0 318.40 328.40 334.80 341.20 348.40 355.60 369.60 G - 20 Hrly 8.24 8.49 8.66 8.83 9.01 9.20 9.57 37.5 309.00 318.38 324.75 331.13 337.88 345.00 358.88 40.0 329.60 339.60 346.40 353.20 360.40 368.00 382.80 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. WAGE PLAN APPENDIX B, Page 4 EFFECTIVE DECEMBER 19, 1985 Class Step Grade _______________________________________________________ I II III IV V VI* VII* G - 5 Hrly 5.19 5.35 5.45 5.56 5.68 5.79 6.02 37.5 194.63 200.63 204.38 208.50 213.00 217.13 225.75 40.0 207.60 214.00 218.00 222.40 227.20 231.60 240.80 G - 6 Hrly 5.37 5.54 5.64 5.75 5.88 5.99 6.23 37.5 201.38 207.75 211.50 215.63 220.50 224.63 233.63 40.0 214.80 221.60 225.60 230.40 235.20 239.60 249.20 G - 7 Hrly 5.56 5.73 5.84 5.95 6.08 6.20 6.45 37.5 208.50 214.88 219.00 223.13 228.00 232.50 241.88 40.0 222.40 229.20 233.60 238.80 243.20 248.00 258.00 G - 8 Hrly 5.75 5.93 6.04 6.16 6.30 6.42 6.67 37.5 215.63 222.38 226.50 231.00 236.25 240.75 250.13 40.0 230.00 237.20 241.60 246.40 252.00 256.80 266.80 G - 9 Hrly 5.96 6.14 6.25 6.38 6.52 6.64 6.91 37.5 223.50 230.25 234.38 239.25 244.50 249.00 259.13 40.0 238.40 245.60 250.00 254.80 260.80 265.60 276.40 G - 10 Hrly 6.16 6.35 6.47 6.60 6.75 6.88 7.15 37.5 231.00 238.13 242.63 247.50 253.13 258.00 268.13 40.0 246.40 254.00 258.80 264.00 270.00 275.20 286.00 G - 11 Hrly 6.38 6.58 6.70 6.83 6.98 7.11 7.40 37.5 239.25 246.75 251.25 256.13 261.75 266.63 277.50 40.0 255.20 263.20 268.00 273.20 279.20 284.40 296.00 G - 12 Hrly 6.60 6.81 6.93 7.07 7.23 7.37 7.66 37.5 247.50 255.38 259.88 265.13 271.13 276.38 287.25 40.0 264.00 272.40 277.20 282.80 289.20 294.80 306.40 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. WAGE PLAN APPENDIX B, Page 5 EFFECTIVE DECEMBER 19, 1985 Class Step Grade ________________________________________________________ I II III IV V VI* VII** G - 13 Hrly 6.83 7.04 7.18 7.32 7.48 7.62 7.93 37.5 256.13 264.00 269.25 274.50 280.50 285.75 297.38 40.0 273.20 281.60 287.20 292.80 299.20 304.80 317.20 G - 14 Hrly 7.07 7.29 7.43 7.58 7.74 7.89 8.20 37.5 265.13 273.38 278.63 284.25 290.25 295.88 307.50 40.0 282.80 291.60 297.20 303.20 309.60 315.60 328.00 G - 15 Hrly 7.32 7.55 7.69 7.84 8.01 8.17 8.49 37.5 274.50 283.13 238.38 294.00 300.38 306.38 318.38 40.0 292.80 302.00 307.60 313.60 320.40 326.80 339.60 G - 16 Hrly 7.58 7.81 7.96 8.12 8.29 8.45 8.79 37.5 284.25 292.88 298.50 304.50 310.88 316.88 329.63 40.0 303.20 312.40 318.40 324.80 331.60 338.00 351.60 G - 17 Hrly 7.84 8.08 8.24 8.40 8.58 8.75 9.10 37.5 294.00 303.00 309.00 315.00 321.75 328.13 341.25 40.0 313.60 323.20 329.60 336.00 343.20 350.00 364.00 G - 18 Hrly 8.12 8.37 8.52 8.70 8.88 9.06 9.42 37.5 304.50 313.88 319.50 326.25 333.00 339.75 353.25 40.0 324.80 334.80 340.80 348.00 355.20 362.40 376.80 G - 19 Hrly 8.40 8.66 8.82 9.00 9.19 9.37 9.74 37.5 315.00 324.75 330.75 337.50 344.63 351.38 365.25 40.0 336.00 346.40 352.80 360.00 367.60 374.80 389.60 G - 20 Hrly 8.70 8.96 9.13 9.31 9.52 9.70 10.09 37.5 326.25 336.00 342.38 349.13 357.00 363.75 378.38 40.0 348.00 358.40 365.20 372.40 380.80 388.00 403.60 *Effective on the emloyee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. -4- 86 - 89 AGREEMENT WAGE PLAN APPENDIX B, Page 2 EFFECTIVE July 1, 1987 Class Step Grade ____________________________________________________________ I II III IV V VI* VII** G - 5 Hrly 5.40 5.56 5.67 5.78 5.91 6.02 6.26 37.5 202.50 208.50 212.63 216.75 221.63 225.75 234.75 40.0 216.00 222.40 226.80 231.20 236.40 240.80 250.40 G - 6 Hrly 5.59 5.76 5.87 5.98 6.12 6.23 6.48 37.5 209.63 216.00 220.13 224.25 229.50 233.63 243.00 40.0 223.60 230.40 234.80 239.20 244.80 249.20 259.20 G - 7 Hrly 5.78 5.96 6.07 6.19 6.32 6.45 6.71 37.5 216.75 223.50 227.63 232.63 237.00 241.88 251.63 40.0 231.20 238.40 242.80 247.60 252.80 258.00 268.40 G - 8 Hrly 5.98 6.17 6.28 6.41 6.55 6.68 6.94 37.5 224.25 231.38 235.50 240.38 245.63 250.50 260.25 40.0 239.20 246.80 251.20 256.40 262.00 267.20 277.60 G - 9 HrLy 6.20 6.39 6.50 6.64 6.78 6.91 7.19 37.5 232.50 239.63 243.75 249.00 254.25 259.13 269.63 40.0 239.20 246.80 251.20 256.40 262.00 267.20 277.60 G - 10 Hrly 6.41 6.60 6.73 6.86 7.02 7.16 7.44 37.5 240.38 247.50 252.38 257.25 263.25 268.50 279.00 40.0 256.40 264.00 269.20 274.40 280.80 286.40 297.60 G - 11 Hrly 6.64 6.84 6.97 7.10 7.26 7.39 7.70 37.5 249.00 256.50 261.38 266.25 272.25 277.13 288.75 40.0 265.60 273.60 278.80 284.00 290.40 295.60 308.00 G - 12 Hrly 6.86 7.08 7:21 7.35 7.52 7.67 7.97 37.5 257.25 265.50 270.38 275.63 282.00 287.63 298.88 40:0 274.40 283.20 288.40 294.00 300.80 306.80 318.80 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. WAGE PLAN APPENDIX B, Page 3 EFFECTIVE July 1, 1987 Class Step Grade ____________________________________________________________ I II III IV V VI* VII** G - 13 Hrly 7.10 7.32 7.47 7.61 7.78 7.93 8.25 37.5 266.25 274.50 280.13 285.38 291.75 297.38 309.38 40.0 284.00 292.80 298.80 304.40 311.20 317.20 330.00 G - 14 HrLy 7.35 7.58 7.73 7.88 8.05 8.21 8.53 37.5 275.63 284.25 289.88 295.50 301.88 307.88 319.88 40.0 294.00 303.20 309.20 315.20 322.00 328.40 341.20 G - 15 Hrly 7.61 7.85 8.00 8.15 8.33 8.50 8.83 37.5 285.38 294.38 300.00 305.63 312.38 318.75 331.13 40.0 304.40 314.00 320.00 326.00 333.20 340.00 353.20 G - 16 Hrly 7.88 8.12 8.28 8.45 8.62 8.79 9.14 37.5 295.50 304.50 310.50 316.88 323.25 329.63 342.75 40.0 315.20 324.80 331.20 338.00 344.80 351.60 365.60 G - 17 Hrly 8.15 8.40 8.57 8.74 8.92 9.10 9.46 37.5 305.63 315.00 321.38 327.75 334.50 341.25 354.75 40.0 326.00 336.00 342.80 349.60 356.80 364.00 378.40 G - 18 Hrly 8.45 8.71 8.86 9.05 9.24 9.42 9.80 37.5 316.88 326.63 332.25 339.38 346.50 353.25 367.50 40.0 338.00 348.40 354.40 362.00 369.60 376.80 392.00 G - 19 Hrly 8.74 9.01 9.17 9.36 9.56 9.75 10.13 37.5 327.75 337.88 343.88 351.00 358.50 365.63 379.88 40.0 349.60 360.40 366.80 374.40 382.40 390.00 405.20 G - 20 Hrly 9.05 9.32 9.50 9.68 9.90 10.09 10.49 37.5 339.38 349.50 356.25 363.00 371.25 378.38 393.38 40.0 362.00 372.80 380.00 387.20 396.00 403.60 419.60 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay per iods of January and July of each year. WAGE PLAN APPENDIX B, Page 4 EFFECTIVE July 1, 1988 Class Step Grade ______________________________________________________________ I II III IV V VI* VII** G - 5 Hrly 5.67 5.84 5.95 6.07 6.21 6.32 6.57 37.5 212.63 219.00 223.13 227.63 232.88 237.00 246.38 40.0 226.80 233.60 238.00 242.80 248.40 252.80 262.80 G - 6 Hrly 5.87 6.05 6.16 6.28 6.43 6.54 6.80 37.5 220.13 226.88 231.00 235.50 241.13 245.25 255.00 40.0 234.80 242.00 246.40 251.20 257.20 261.60 272.00 G - 7 Hrly 6.07 6.26 6.37 6.50 6.64 6.77 7.05 37.5 227.63 234.75 238.88 243.75 249.00 253.88 264:38 40.0 242.80 250.40 254.80 260.00 265.60 270.80 282.00 G - 8 Hrly 6.28 6.48 6.59 6.73 6.88 7.01 7.29 37.5 235.50 243.00 247.13 252.38 258.00 262.88 273.38 40.0 251.20 259.20 263.60 269.20 275.20 280.40 291.60 G - 9 Hrly 6.51 6.71 6.83 6.97 7.12 7.26 7.55 37.5 244.13 251.63 256.13 261.38 267.00 272.25 283.13 40.0 260.40 268.40 273.20 278.80 284.80 290.40 302.00 G - 10 Hrly 6.73 6.93 7.07 7.20 7.37 7.52 7.81 37.5 252.38 259.88 265.13 270.00 276.38 282.00 292.88 40.0 269.20 277.20 282.80 288.00 294.80 300.80 312.40 G - 11 Hrly 6.97 7.18 7.32 7.46 7.62 7.76 8.09 37.5 261.38 269.25 274.50 279.75 285.75 291.00 303.38 40.0 278.80 287.20 292.80 298.40 304.80 310.40 323.60 G - 12 Hrly 7.20 7.43 7.57 7.72 7.90 8.05 8.37 37.5 270.00 278.63 283.88 289.50 296.25 301.88 313.88 40.0 288.00 297.20 302.80 308.80 316.00 322.00 324.80 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay per iods of January and July of each year. WAGE PLAN APPENDIX B, Page 5 EFFECTIVE JULY 1, 1988 Class Step Grade _______________________________________________________________ I II III IV V VI* VII** G - 13 HrLy 7.46 7.69 7.84 7.99 8.17 8.33 8.66 37.5 279.75 288.38 294.00 299.63 306.38 312.38 324.75 40.0 298.40 307.60 313.60 319.60 326.80 333.20 346.40 G - 14 Hrly 7.72 7.96 8.12 8.27 8.45 8.62 8.96 37.5 289.50 298.50 304.50 310.13 316.88 323.25 336.00 40.0 308.80 318.40 324.80 330.80 338.00 344.80 358.40 G - 15 Hrly 7.99 8.24 8.40 8.56 8.75 8.92 9.27 37.5 299.63 309.00 315.00 321.00 328.13 334.50 347.63 40.0 319.60 329.60 336.00 342.40 350.00 356.80 370.80 G - 16 Hrly 8.27 8.53 8.69 8.87 9.05 9.23 9.60 37.5 310.13 319.88 325.88 332.63 339.38 346.13 360.00 40.0 330.80 341.20 347.60 354/80 362.00 369.20 384.00 G - 17 Hrly 8.56 8.82 9.00 9.18 9.37 9.56 9.93 37.5 321.00 330.75 337.50 344.25 351.38 358.50 372.38 40.0 342.40 352.80 360.00 367.20 374.80 382.40 397.20 G - 18 Hrly 8.87 9.15 9.30 9.50 9.70 9.89 10.29 37.5 332.63 343.13 348.75 356.25 363.75 370.88 385.88 40.0 354.80 366.00 372.00 380.00 388.00 395.60 411.60 G - 19 Hrly 9.18 9.46 9.63 9.83 10.04 10.24 10.64 37.5 344.25 354.75 361.13 368.63 376.50 384.00 399.00 40.0 367.20 378.40 385.20 393.20 401.60 409.60 425.60 G - 20 Hrly 9.50 9.79 9.98 10.16 10.40 10.60 11.02 37.5 356.25 367.13 374.25 381.00 390.00 397.50 413.25 40.0 380.00 391.60 399.20 406.40 416.00 424.00 440.80 *Effective on the employee's seventh (7th) anniversary. **Effective on the employee's fifteenth (15th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay per iods of January and July of each year. -5- 89 - 91 AGREEMENT WAGE PLAN APPENDIX B GENERAL GOVERNMEMT CLASSIFICATION PLAN EFFECTIVE JULY 1, 1989 Class Grade ____________________________________________________ I II III IV V VI* VII* G-5 5.950 6.130 6.250 6.370 6.520 6.640 6.900 G-6 6.160 6.350 6.470 6.590 6.750 6.870 7.140 G-7 6.370 6.570 6.690 6.820 6.970 7.110 7.400 G-8 6.590 6.800 6.920 7.070 7.220 7.360 7.650 G-9 6.830 7.040 7.170 7.320 7.480 7.620 7.930 G-10 7.070 7.280 7.420 7.560 7.740 7.900 8.200 G-11 7.320 7.540 7.690 7.830 8.000 8.150 8.490 G-12 7.560 7.800 7.950 8.110 8.290 8.450 8.790 G-13 7.830 8.070 8.230 8.390 8.580 8.750 9.090 G-14 8.110 8.360 8.530 8.680 8.870 9.050 9.410 G-15 8.390 8.650 8.820 8.990 9.190 9.370 9.730 G-16 8.680 8.960 9.120 9.310 9.500 9.690 10.080 G-17 8.990 9.260 9.450 9.640 9.840 10.040 10.430 G-18 9.310 9.610 9.760 9.970 10.180 10.380 10.800 G-19 9.640 9.930 10.110 10.320 10.540 10.750 11.170 G-20 9.970 10.280 10.480 10.670 10.920 11.130 11.570 *Effective on the employee's sixth (6th) anniversary. **Effective on the employee's twelfth (12th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. WAGE PLAN APPENDIX B GENERAL GOVERNMENT CLASSIFICATION PLAN EFFECTIVE JULY 1. 1990 Class Grade___________________________________________________________ I II III IV V VI* VII* G-5 6.240 6.440 6.560 6.690 6.850 6.970 7.240 G-6 6.470 6.670 6.790 6.920 7.090 7.210 7.500 G-7 6.690 6.900 7.020 7.160 7.320 7.470 7.770 G-8 6.920 7.140 7.270 7.420 7.580 7.730 8.030 G-9 7.170 7.390 7.530 7.690 7.850 8.000 8.330 G-10 7.420 7.640 7.790 7.940 8.130 8.300 8.610 G-11 7.690 7.920 9.070 8.220 8.400 8.560 8.910 G-12 7.940 8.190 8.350 8.520 8.700 8.870 9.230 G-13 8.820 8.470 8.640 8.810 9.010 9.190 9.540 G-14 8.520 8.780 8.960 9.110 9.310 9.500 9.880 G-15 8.810 9.080 9.260 9.440 9.650 9.840 10.220 G-16 9.110 9.410 9.580 9.780 9.980 10.170 10.580 G-17 9.440 9.720 9.920 10.120 10.330 10.540 10.950 G-18 9.780 10.090 10.250 10.470 10.690 10.900 11.340 G-19 10.120 10.430 10.620 10.840 11.070 11.290 11.730 G-20 10.470 10.790 11.000 11.200 11.470 11.690 12.150 *Effective on the employee's sixth (6th) anniversary. **Effective on the employee's twelfth (12th) anniversary. Advancement from one step to the next higher step to step V of the Class Grade shall occur in the first pay periods of January and July of each year. -6- 3. In the 84-86 agreement, Article 19 reads as follows: TERMINATION This agreement shall be effective as of December 20, 1984 and shall remain in full force and effect through December 24, 1986. It shall be automatically renewed from year to year there- after unless the Public Employer notifies the Union or the Union notifies the Public Employer in writing at least one hundred twenty (120) days prior to the expiration date that it desires to modify this Agreement. In the event that notification is given, the rates of pay actually being paid during the last pay period of 1986 shall continue to be paid during the period of negotiations. Likewise, those non-wage benefits shall continue in effect at the same level as the last pay period of 1986. However, the retro- activity of any increased costs in continuing benefits into the successor agreement shall be subject to negotiations. 4. In the 86-89 agreement, Article 19 states: TERMINATION This agreement shall be effective as of December 25, 1986 and shall remain in full force and effect through June 30, 1989. It shall be automatically renewed from year to year thereafter unless both Employers notify the Union or the Union notifies both Employers in writing at least one hundred twenty (120) days prior to the expiration date that it/they desire(s) to modify this Agreement. In the event that notification is given, the rates of pay actually being paid during the last pay period of June, 1989 shall continue to be paid during the period of negotiations. Likewise, those non-wage benefits shall continue in effect at the same level as the last pay period of June, 1989. However, the retroactivity of any increased costs in continuing benefits into the successor agreement shall be subject to negotiations. 5. Article 19 of the 89-91 agreement reads as follows: TERMINATION This agreement shall be effective as of the date of its execution unless otherwise specifically provided herein, and shall remain in full force and effect through June 30, 1991. -7- DISCUSSION On October 8, 1991, this Board issued a decision holding that an employer had violated section 964(1)(E) of the MPELRL, 26 M.R.S.A. 964(1)(E) (1988), by failing, pending negotiations for a successor collective bargaining agreement, to maintain the status quo with respect to employee salaries. Auburn School Administrators Association v. Auburn School Committee, No. 91-19 (Me.L.R.B. Oct. 8, 1991), consolidated appeals dismissed per stipulation, No. CV-91-459 XCV-91-464 (Me. Super. Ct., And. Cty., Apr. 24, 1992). In finding that the employer in Auburn was required, in the absence of a new agreement, to pay wage increases according to the wage plan in the parties' expired agreement, the Board abandoned the distinction it had created 12 years earlier, in which for the subject of wages only, pre-contract status quo and post-expiration status quo1 were defined differently. The employer was ordered, among other things, to reimburse employees for wages lost as a result of the violation. The Board ordered interest to be paid prospectively only, since its decision to overturn Easton, though by no means totally unforeseeable, was not necessarily predictable. The contract between the parties in the case now before us expired on June 30, 1991, approximately three months before the Auburn decision was issued. In refusing to pay step increases required by the expired contract, the City and the School Committee argue 1) the Board should readopt its old Easton rule; and 2) if the new rule is maintained, it should not be applied retroactively. Readoption of old rule It is a basic principle of labor law that an employer may not unilat- erally change the terms and conditions of employment for employees repre- sented by a collective bargaining agent.2 NLRB v. Katz, 369 U.S. 736 ________________________ 1That is, status quo during the period of negotiations for an initial contract, and status quo during the period after a contract has expired and before a new one has been negotiated and ratified. 2There are exceptions to that rule that are not relevant here. -8- (1962). More specifically, "[i]t is a well established rule of labor law that an employer may not unilaterally alter the terms and conditions of employment after the expiration of a collective bargaining agreement." Lane v. Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-10 (Me. 1982). This rule requiring maintenance of the status quo is based not on contract law, but on the principle that unilateral alterations are in contravention of the statutory duty to bargain in good faith. Id. at 810. The City and the School Committee do not challenge these general prin- ciples. Rather, on policy grounds, they challenge the Board's new defini- tion of the status quo, with respect to wages, during the period after expiration of a contract and before a successor is in place. The back- ground on this issue is laid out at length in Auburn, and will be reiter- ated briefly here. In essence the question is whether, in a wage context, the term and condition of employment that is frozen should be the actual wage that employees are receiving at the time the contract expires, or the wage formula that is in effect when the contract expires. The Board was first faced with a post-expiration wage dispute in the 1979 case of Easton Teachers Association v. Easton School Committee, No. 79-14, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979), where it stated: Normally the two parties reach a complete written agreement on the terms and conditions and agree to be bound by that agree- ment for a given length of time. Thereafter, the parties again have the opportunity to negotiate proposed changes in the existing terms and conditions. Again, however, the employer cannot make unilateral changes in these terms and conditions embodied in the prior agreement until the proposed changes have been negotiated with the bargaining agent. In essence, there is no difference between collective bargain- ing for an initial agreement, during which all existing terms and conditions of employment are frozen until proposed changes have been fully negotiated, and collective bargaining for subsequent agreements, during which existing terms and conditions of employ- ment (as embodied in a prior agreement) are again frozen until proposed changes have been fully negotiated. Id., slip op at 4-5. In applying this principle of maintaining the status quo to the various terms and conditions of employment that the employer had unilaterally terminated upon expiration of the parties' contract, two items were singled out by the Board in Easton and addressed differently -9- than the others: salary step increases and experience factor increases for extracurricular activities. Adopting the New York3 view of freezing wages rather than freezing or giving effect to built-in wage escalators, the Board established what it termed the "static" view of status quo. As a result, the employer's failure to grant the step increases and experience factor increases at issue did not constitute a prohibited practice, even though the termination of other benefits was improper. This rule was applied in another decision issued very shortly after Easton. MSAD No. 43 Board of Directors v. MSAD No. 43 Teachers Association, No. 79-36, -39, -45 & -47, 1 NPER 20-10027 (Me.L.R.B. Aug. 24, 1979), modified on other grounds, No. CV-79-541 (Me. Super Ct., Ken. Cty., July 8, 1980), aff'd, 432 A.2d 395 (Me. 1981). In a second decision issued shortly after Easton, the Board refused to apply the principle of the "static" status quo to the employer's termina- tion of a merit increase during negotiations for an initial contract, in spite of its statement in Easton that there is no difference between collective bargaining for an initial agreement and bargaining for a suc- cessor. Teamsters Local Union No. 48 v. University of Maine, No. 79-08, 1 NPER 20-10022 (Me.L.R.B. June 29, 1979), appeal dismissed for lack of prosecution, No. CV-79-406 (Me. Super. Ct., Ken. Cty., Dec. 30, 1981). The Board called this different treatment of pre-contract wage escalators the "dynamic" status quo, and has continued to apply it in the pre-contract wage context. Council 74, AFSCME v. School Administrative District No. 1, No. 81-12, 3 NPER 20-12014 (Me.L.R.B. Mar. 11, 1981); Council 74, AFSCME v.Town of Brunswick, No. 85-08, 8 NPER Me-16014 (Me.L.R.B. Apr. 19, 1985). After the Easton and MSAD No. 43 cases in 1979, the issue of what should constitute post-expiration status quo for wages did not come before the Board again until 1991, in the Auburn case. Upon careful review, the Board decided that the distinction between pre-contract and post-expiration status quo (that is, the distinction between the "dynamic" and "static" status quo), applied only to wages, was not a valid one, and overruled ____________________________ 3Board of Co-Op Educ. Services of Rockland County v. N.Y. Public Employment Relations Board, 41 N.Y.2d 753, 363 N.E.2d 1174 (N.Y. 1977) (hereinafter "Rockland County"). -l0- Easton to the extent that it made that distinction. In the matter now before us, the employers urge the Board to readopt the old Easton rule, on both policy and legal grounds. In making their policy arguments, the City and the School Committee first point to Rockland County, the New York Court of Appeals case relied upon by the Board in Easton, to support their position that in tough economic times, public em- ployers may simply not be able, in good faith, to continue paying automat- ic wage increments to their employees. Requiring employers to continue an old pay formula (that is, to pay increases) during contract negotiations, the City and the School Committee argue, gives employees an incentive not to reach agreement on a new contract and thus makes negotiation for lower wages difficult, if not impossible. The employers also point to the Law Court opinion in MSAD No. 43, and suggest that the Court approved of the Board's earlier reliance on Rockland County in the Easton case. If the Law Court considered Easton unwise or unprincipled, the employers argue, it could have rejected the rule. They also cite a Pennsylvania case, where the court cited MSAD No. 43 in finding that requiring the employer to pay step increases in an expired contract would change the status quo, not maintain it. Fairview School Dist. v. Unempl. Comp. Bd. of Review, 454 A.2d 517 (Pa. 1982). Each argument will be addressed. First, the Law Court in MSAD No. 43 found that the Board "properly could" find that the step increase formula in the expired contract at issue there need not be extended beyond the last school year covered by the contract. Id. at 398. That language in no way suggests that the Board was required to decide Easton as it did. Rather, it reflects the fact that courts review statutory interpretations of the Board and other administra- tive agencies within the limits of the Administrative Procedure Act (5 M.R.S.A. 11007(4)(C) (1989)); they do not impose their own interpreta- tions. Certainly, an agency may change its mind if it has good reason to do so. This principle has been enunciated clearly in the federal context: It is also clear that the [NLRB's] previous decisions do not bind it in later proceedings with anything like the the force of the doctrine of stare decisis in the courts. The Board is free to change its mind on matters of law that are within its competence -11- to determine, provided it gives a reasoned analysis in support of the change. . . . Even if the Board adopts a rule in a decision that is subsequently enforced by a court of appeals, it may later change the rule. Enforcement reflects only a determination by the court of appeals that the rule is rational and consistent with the Act, not that it is the uniquely correct rule. Local 1384, United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB, 756 F.2d 482, 492 (7th Cir. 1985). Our reasons for overturning Easton are set out in the Auburn decision. A look at case law in other jurisdictions also supports our decision to reverse Easton. In a dispute over a salary schedule in an expired contract, the Supreme Court of Indiana found that the employer's refusal to pay experience and education-based salary increases constituted a failure to bargain. Indiana Educ. Employment Relations Board v. Mill Creek Class- room Teachers Assoc., 456 N.E.2d 709 (Ind. 1983). In that court's judg- ment, terms and conditions of employment, which must by statute be main- tained during negotiations, may refer to a salary formula in a contract, and not simply to the wage that the employees happen to be getting at the time the contract expires. California too has adopted this view. In a case cited by the Indiana court in Mill Creek, the California Public Employment Relations Board found that maintaining the status quo after a contract expires requires continu- ing to pay teachers "in a like manner, not a like amount." NPER Vol. 2, #8 (Aug. 1980), citing Davis Unified School Dist., 4 PERC 11031 (Cal.P.E.R.B. Feb. 1980). The Illinois Board also defines post-expiration status quo not as freezing of actual salaries, but as freezing the salary structure. Vienna School Dist. 55 v. Ill. Educ. Labor Relations Board, 162 Ill. App.3d 503, 515 N.E.2d 476 (4th DCA 1987). See also, Bd. of Educ. of Springfield Public Schools v. Springfield Educ. Assoc., 47 Ill. App.3d 193, 361 N.E.2d 697 (4th DCA 1977). Michigan has followed this reasoning as well, in requiring employers to continue cost-of-living increases after contract expiration. Wayne County Government Bar Association v. County of Wayne, 169 Mich. App. 480, 426 N.W.2d 750 (Ct. App. Mich. 1988); Local 1467, IAFF v. City of Portage, 134 Mich. App. 466, 352 N.W.2d 284 (Ct. App. Mich. 1984). -12- Florida is of particular interest because like Maine, it has changed its rule. In Pinellas County PBA v. City of_St. Petersburg, 3 FPER 205 (1977), the Florida Public Employees Relations Commission established a rule that distinguished between "cyclical" and "continuing" benefits; employers were required to maintain "continuing" benefits (insurance, dues deduction, grievance procedure) after contract expiration, but need not maintain "cyclical" benefits (annual physicals, annual step increases). Subsequently the Commission backed away from that distinction, and now requires employers to continue to pay annual step increases in salary. IAFF Local 2416 v. City of Cocoa, CA-88-014, 11 NPER FL-19311 (Oct. 17, 1988); for detailed history of change, see Hearing Officer's Recommended Order, CA-88-014 (July 8, 1988). Finally, the policy arguments in Rockland County upon which the City and the School Committee rely are diluted substantially by the fact that New York too has changed its rule. In 1972, the New York Public Employment Relations Board established what came to be known as the Triborough doctrine, which among other things required an employer to continue giving annual salary increments arising from an expired contract. Triborough Bridge & Tunnel Authority, 5 PERB 3064 (1972). On appeal, the Court of Appeals of New York vacated PERB's decision, holding that to "say that the status quo must be maintained during negotiations is one thing; to say that the status quo includes a change and means automatic increases in salary is another." Rockland County, 363 N.E.2d at 1177. In 1982, the New York Legislature amended its laws to state that "to refuse to continue all the terms of an expired agreement until a new agreement is negotiated" consti- tutes an unfair labor practice. In a subsequent case, the court interpreted that amendment as an intentional legislative alteration of the rule laid down in Rockland County. Cobleskill Central School Dist. v. Newman, 105 A.D.2d 564, 481 N.Y.S.2d 795 (A.D. 1984). What all of these cases establish is that there are two schools of thought on the issue of what constitutes post-expiration status quo in con- nection with wages, and the view supported by the City and the School Committee is the minority view. In the Auburn case, we reviewed our 1979 decision in Easton, along with our status quo decisions in other contexts, and concluded that the inconsistency in Easton should no longer stand. We -13- see no reason to return to the outdated, inconsistent rule. Two other points are worth mentioning. First, we reject the employers' suggestion that the definition of the status quo, as a matter of public policy, should hinge on the state of the economy. The definition should promote the purposes of the MPELRL; it should not fluctuate depending on the budget woes of public employers. Second, the argument that refusing to reverse our Auburn decision will give employees an incentive for not reaching an agreement on a new contract applies just as well to the City and the School Committee. By their own logic, returning to the old Easton rule would give them an incentive not to reach agreement.4 We also note that in fact the employers have not even made an attempt, since October of 1991 when the Auburn decision was issued, to reach an agreement on a new contract. Had the parties been negotiating during these past nine months, they may have reached a new agreement that no longer included increases. Alternatively, if they had reached impasse after a good-faith attempt to reach agreement through the dispute resolution procedures of the MPELRL, the employers would have had the option of implementing their last, best offer. Either way, they could have substantially mitigated the effects of Auburn. The legal arguments made by the City and the School Committee are no more persuasive than their policy arguments. They first suggest that the new rule laid down in Auburn contravenes the legislative intent of the MPELRL, because it requires the employers to pay salaries they never agreed upon. Though no citation is given for this proposition, the employers are apparently referring to section 965(1)(C) of the MPELRL, which defines collective bargaining, in part, as the mutual obligation to "confer and negotiate in good faith with respect to wages, hours, working conditions ________________________ 40ne of the benefits of the new rule (that is, of treating wages in the same way as we treat all other mandatory subjects) will be to encourage negotiations for a successor agreement to begin and end in a timely manner -- before expiration of the old contract. Without the right to strike, employees in the public sector have no way to avoid working without a contract, except to give in to the employer's demands. The recent increase in the number of units without contracts does not bode well for labor peace and stability. -14- 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...." The City and the School Committee also point out that sec- tion 965(4) of the MPELRL makes the recommendations and findings of an interest arbitrator, in disputes over salaries, pensions and/or insurance, advisory only. Consequently, they say, the old Easton rule can only be overturned legislatively. We note first that collective bargaining laws in Indiana, Illinois, Florida, California, Michigan and New York all contain language virtually identical to that in section 965(1)(C) of the MPELRL. (That the duty to bargain does not require a party to agree to a particular proposal or to make a particular concession is black letter labor law.) Yet each of these states has adopted the definition of wage-related post-expiration status quo that we adopted in Auburn. More importantly, if sections 965(1)(C) and 965(4) mean what the City and the School Committee contend they mean, the ramifications are far greater than a simple prohibition against the definition of the status quo with respect to wages that we have adopted. In effect, the employers' argument means not only that they do not have to pay increased wages under the step increase plan in the expired contract -- they do not even have to freeze wages at the levels that existed when the contract expired, since forcing them to do so would force them to pay something they haven't agreed to pay. Furthermore, by the employers' logic, the Board cannot impose the status quo, dynamic or static, on employers prior to negotiations for an initial contract: Again, to do so would be to force them to pay something they hadn't negotiated to pay. By this reasoning, an employer may uni- laterally change any term or condition of employment it chooses to change, at any time, unless there is a signed contract in place. This result flies in the face of the overriding purpose of collective bargaining statutes -- to promote harmony in the workplace by providing a stable, orderly mecha- nism for establishing and/or changing terms and conditions of employment. As has been stated so succinctly in the federal labor arena, requiring an employer to maintain the status quo after contract expiration "does not compel [him] to agree to any new or different contract provision; it simply -15- requires him to abide by an obligation once extant by reason of the binding contract but then continuing on after its expiration, in limited form, not by reason of the contract itself but because of the dictates of the policy embodied in the National Labor Relations Act." Hinson v. NLRB, 428 F.2d 133, 138 (8th Cir. 1970) (emphasis in original). In connection with the employers' assertion that our old Easton rule should only be changed by an act of the Legislature, their reliance on the legislative change that overturned the Rockland County case in New York appears to us to be misplaced. It is possible, if not likely, that the New York Legislature took action because in Rockland County the court had misinterpreted the New York law when it overturned the labor board. The legislative amendment would then have constituted an affirmation of the status quo policy originally enunciated by New York's board through the Triborough doctrine, and not a change in it. The employers' second legal argument is that regardless of the defini- tion of the status quo used by the Board, past practice between the parties has established that wages are to be frozen during the period between expiration of one contract and the beginning of the next. In normal cir- cumstances we would reject this argument, since in normal circumstances the practice has existed by operation of board policy and not by agreement of the parties. In the case before us, however, that is not so. As the employers have acknowledged, the first two contracts between the parties contained a provision specifying that upon expiration, wages then being paid would be frozen during negotiations for a new contract. However, in the last contract, this provision was removed. Consequently, the parties by agreement abolished any "past practice" that existed. Retroactivity We are told by the City and the School Committee that even if we decide to preserve the new Auburn rule, it should not be applied to them until they have had the opportunity to bargain for a waiver of the new rule -- that is, until expiration of the successor contract that the parties have not yet bargained. The basis for their position is that applying the new rule retroactively (to parties whose actions at the time they were taken -16- were lawful under then-existing case law) would be "manifestly unjust." That is the standard commonly applied by the courts in reviewing retroac- tive application of policy changes by the NLRB. Ryan Heating Co. v. NLRB, 942 F.2d 1287 (8th Cir. 1991). In adopting this standard, some federal circuit courts have relied on U.S. Supreme Court precedent reviewing rule changes of administrative agencies: most often, SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles"). Other courts have relied on Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7 (1971), in which the U.S. Supreme Court addressed the retroactive application of a change in its own rules of law.5 Factors that have been derived from these precedents and applied to NLRB decisions include: (1) whether the losing party relied on established Board policy when choosing the course of conduct that led to the unfair labor practices charge; (2) whether the Board abruptly changed the policy without clearly foreshadowing its intent to to do so; and (3) the severity of the penalty imposed on the losing party. Ryan Heating, 942 F.2d at 1289. Another factor that has been considered is the statutory interest in applying the new rule in spite of reliance on the old rule. Local 900, International Union of Electrical, Radio and Machine Workers v. NLRB, 727 F.2d 1184, 1194 (D.C. Cir. 1984). We do not believe that it would be manifestly unjust to apply the new rule to the City and the School Committee. First, the employers' reliance on the old rule is questionable. The employers state that had they known that the Easton rule would not apply when the 89-91 agreement expired, they could have insisted on a contractual provision that required wages to remain static during the contract hiatus. What they do not explain is why, if they were relying on the Easton rule, the parties' first two contracts (the 84-86 agreement and the 86-89 agreement) contained just ___________________________ 5The test in Chevron is: Does the decision establish a new principle of law? Would retractive application further or retard its operation? How inequitable would retroactive application be? -17- such a provision. The third one does not. Did they only start relying on Easton in 1989 when they took the provision out of the 89-91 agreement? Why the change in reliance? Nor is our decision to overturn Easton so clearly an abrupt, unfore- shadowed change. Both Easton and MSAD No. 43 were issued in 1979. There- after, the Board was not faced with the issue of post-expiration wages again until the Auburn case, in 1991.6 During that 12-year period, the Board took a totally different approach in addressing insurance provisions in contracts than it had taken with wage provisions, although insurance provisions in particular may present the same dilemma as wage provisions may present -- they may require an employer to pay more dollars after contract expiration than it was paying under the contract. Yet the dynamic status quo has always been the rule with insurance provisions that contain a formula for calculating the benefit rather than a fixed dollar figure. Moreover, in another context the Board recently affirmed the general principle that the status quo requires freezing procedures or formulas. MSEA v. School Committee of the City of Lewiston, No. 90-12 (Me.L.R.B. Aug. 21, 1990). In that case the Board found that the employee reclassification procedure had to be frozen, not the specific employee classifications that were in place for each employee when the contract expired. The reclassifi- cation of employees has clear salary ramifications. Thus, although the Board's decision to reverse Easton was not necessarily predictable or cer- tain, neither was it by any means unforeseeable, particularly in light of the fact that the rule in Easton is the minority rule. _________________________ 6This is true, notwithstanding the fact that the employers cite Auburn School Support Personnel v. Auburn School Committee, No. 91-12 (Me.L.R.B. July 11, 1991), for the proposition that the Board has "consistently, and on repeated occasions, enforced its judgment and policy that maintenance of the status quo requires just that -- no modification (up or down) of wages in effect at the expiration of a labor contract." As the employers here are well aware, that Auburn case had nothing to do with wages. The issue before the Board was whether the employer was required to pay for an insurance premium increase that occurred upon contract expiration. We found that it was not, since the expired contract contained a fixed ("static") dollar amount to oe paid by the employer, and not a ("dynamic") formula by which the amount to be paid would be determined. -18- The nonseverity of the penalty here also favors retroactive application of the new rule to these parties. First we note that when we applied the new rule to the parties in Auburn, we ordered that interest on wages owed would be paid prospectively only. We will do the same in the case now before us. Second, a major purpose of our rule change is to make the defi- nition of the status quo consistent and therefore predictable7 -- as between wages and other mandatory subjects, as between pre-contract status quo and post-expiration status quo. On each previous occasion when the parties' contract expired, step increases were granted retroactively once a suc- cessor contract was signed. Consequently, imposing the new rule on these parties until they negotiate to waive the new rule is more in line with previous practice (and continued expectations), especially since the par- ties removed from their last contract the provision that reiterated the old Easton rule. No doubt the employers' response would be that such reason- ing should only apply once the parties have negotiated another successor agreement that contains the step increase formula contained in the last three contracts -- which brings us to our third point. It is difficult for us to look upon our application of the new rule here as a substantial burden or penalty. Not only have the employers not negotiated to abolish the step increase formula in their expired contract -- negotiations for a successor aren't even occurring. As we pointed out earlier in another con- text, with some effort the employers could have substantially mitigated the effects of the new rule. They have not even attempted to do so. Finally, we have a strong statutory interest in applying the new rule retroactively. By its very nature, this particular rule is one that if not applied retroactively, will not be applicable to most public sector employers/employees for a substantial period of time -- only parties who have negotiated a contract since the new rule was announced would be affected by it, and some contracts negotiated before that date will last as ________________________ 7While it is generally true that bargaining agents are familiar with the old rule, many employees are not. Consequently, a decision by an employer to alter its previous practice of agreeing to pay step increases even though the contract has expired can cause substantial harm to the labor/ management relationship. -19- long as three years.8 That alone defeats the purpose of changing the rule. In connection with making our retroactivity determination, we must also question whether there is any basis for treating the City and the School Committee differently than we treated the employer in Auburn. There, we reversed the Easton rule and applied the new rule retroactively -- that is, to the litigants in that case. The case presently before us is the only one that has been filed since the Easton rule was overturned nearly a year ago. As far as we are aware, all other employers who were caught having to pay wage increases based on the practices established in their expired contracts have done so. We do not even want to contemplate the confusion that would be created by a decision to treat similarly situated employers differently than we treated the employer in Auburn (and the likely attempt of employers who have abided by the new rule to reverse course). In addition, the essence of determining whether a change in policy should be applied retroactively (to the parties in the litigation where the change occurred) is an assessment of "the relative weight of the burden that retroactivity would entail, on the one hand, and the Board's [NLRB's] interest in a uniform application of its new rule on the other hand." Fox Painting Company v. N.L.R.B., 919 F.2d 53, 56 (6th Cir. 1990). For us to have decided to apply the new rule to the original litigants, but to refuse to apply it to future parties who are similarly situated, would turn the retroactivity analysis on its head. Finally, it is doubtful that we have the authority to treat similarly situated parties differently in any case. The U.S. Supreme Court has recently addressed this issue, albeit in a different context. In James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439 (1991), the question pre- sented was whether the Court's ruling in another case, where it had declared previously constitutional conduct to be unconstitutional, should apply retroactively to later cases arising out of facts antedating that decision. Stated another way, when the Court expressly overrules precedent and applies a new rule of law to the litigants in the case, is it error to _________________________ 8AIl four public sector collective bargaining statutes permit nego- tiation of a contract for a period of up to three years. -20- refuse to apply the new rule to similarly situated parties? After a lengthy discussion of the three ways this choice-of-law problem could be resolved,9 it answered that question in the affirmative -- selective, or modified prospectivity is legal error. (The only exceptions made are for claims barred by procedural requirements such as res judicata or an appli- cable statute of limitations.) Thus, any inquiry regarding reliance on the old rule and the degree of harm that retroactivity would impose becomes irrelevant. Id. at 2447. This is so even though the Court applied its new rule retroactively in its original decision without making the proper retroactivity analysis. The Court did state that its decision did not preclude taking the circumstances of individual litigants into considera- tion when designing a remedy for violation of the new rule. Id. at 2448. Beam has been applied repeatedly to judicial decisions addressing non- constitutional issues. Whether or not Beam applies to administrative adju- dications has been considered by one court. In District Lodge 64 v. NLRB, 949 F.2d 441 (D.C. Cir. 1991), the court was not required to reach the issue, since it found that retroactive application of a prior NLRB decision (Ducane Heating Corp., 274 NLRB 1389 (1985), enforced without opinion, 785 F.2d 304 (4th Cir. 1986)), would not be manifestly unjust in any case. Nevertheless, the court provided a persuasive argument for why Beam might indeed apply to federal agency adjudications. District Lodge 64, 949 F.2d at 446-7. If that is so, then the citations by the parties in the matter before us, related to case-by-case retroactivity analyses in connection with the NLRB's new rules on pre-hire agreements, are no longer applicable.10 _________________________ 9Full retroactivity, prospectivity or selective prospectivity. 10In the past, federal courts have made case-by-case determinations of the appropriateness of retroactive application of a new NLRB rule, even if the agency specified that it was to be applied retroactively. The best example of this is the series of cases that resulted from the NLRB's deci- sion to change its rules regarding pre-hire agreements. Although in changing its rules the NLRB stated that the new rules would be applied retroactively "to all pending cases in whatever stage," (Deklewa and International Association of Bridge, Structural and Ornamental Iron Workers, Local 3, 282 NLRB 1375, 1389 (1987), and although the NLRB's deci- sion was affirmed (843 F.2d 770 (3d Cir. 1988), cert. denied, 488 U.S. 889 (1988)), federal courts have made independent retroactivity determinations in connection with subsequent application of the new rule announced in Deklewa. -21- Although we do not believe Maine law on retroactivity is applicable here,11 following it would not give a different result. We note first that the Law Court has apparently not addressed the issue of the retroactivity of administrative adjudications. We note also that new rules announced in civil judicial decisions are always applied to the parties in the case where the new rule is announced, regardless of any equitable considera- tions. Myrick v. James, 444 A.2d 987, 1001 (Me. 1982). The reasons given are three-fold: to reward the diligence of the litigant who sought the change; to prevent the newly announced rule from being dictum; and to avoid arbitrariness. Id. We assume that the same logic would apply, were the Law Court to have reviewed our decision to apply our new Auburn rule to the parties in the Auburn litigation. The Law Court's determinations regarding how to apply new rules to future litigants are based on "the existence of substantial public reliance on the former rule and of the litigants' ability to foresee [the court's] overruling decision." Clark v. Rust Engineerinq Co., 595 A.2d 416, 418 (Me. 1991). Generally, the judicial rule change has been in the area of tort law, and the new rule has been applied to all injuries that occurred on or after the date of the injury in the case where the new rule was announced. Black v. Solmitz, 409 A.2d 634 (Me. 1979); Poulin v. Colby College, 402 A.2d 846 (Me. 1979); Jones v. Billings, 289 A.2d 39 (Me. 1972). Thus, not only has the new rule been applied to the defendant in the rule-changing case; acts that occurred at any time from the date of the injury in the rule-changing case to the date the rule was changed, are declared to be illegal even though they were legal at the time they occurred. The critical fact is that similarly situated litigants are treated similarly. Were we to use this approach in the case before us, the new Auburn rule would be applicable; the refusal to pay wage increases here ______________________ 11The NLRB's usual practice is to apply new policies and standards retroactively. Deklewa, 282 NLRB at 1389. Where that practice is uti- lized, it is for the purpose of furthering policies based on statutory design. Id.; 843 F.2d at 780. We administer statutes that are similar in design (we commonly look to NLRB precedent for this reason), and our interests in furthering that design are similar. In particular, as we have said, we have a strong statutory interest in applying our new Auburn rule retroactively. Thus, federal precedent, while not binding, is most appropriate here. -22- occurred several months after the refusal to pay in Auburn. The Law Court has not always used the approach it used in Black, Poulin and Jones. The results in MacDonald v. MacDonald, 412 A.2d 71 (Me. 1980), were even more harsh. There the court abolished the doctrine of interspousal immunity, and stated that the new rule would be applied retroactively to any case not yet final. The court found that there were no "special" reliance interests at stake. Myrick, cited earlier, involved a change in when the statute of limita- tions would begin to run in foreign-object surgical malpractice cases. The general rule for malpractice cases was that it would begin to run at the time the alleged malpractice occurred. Because a patient might not even discover that a foreign object had been left in his/her body until well after the statute of limitations had run, a new rule was established in Myrick for foreign-object surgical malpractice cases only -- the limita- tions period begins to run when the patient discovers or reasonably should discover the presence of the object in his/ her body. The court stated that this new rule would be applied to all acts of alleged malpractice occurring on or after the date of the court's decision announcing the new rule, rather than to those occurring on or after the date of the injury in Myrick. Presumably it did so because the new rule by its very nature made the date of the injury (the date the object was left in the patient's body) in Myrick meaningless. We can discern no difference between the reliance interests in this case and previous rule-changing tort cases. Finally, in Davies v. City of Bath, 364 A.2d 1269 (Me. 1976), the court abolished the common-law doctrine of sovereign immunity. It applied the new rule to the litigants in the case, as usual. It made the change appli- cable to all other causes of action arising on or after 60 days following certification of the decision, in order "to allow time for legislation to be enacted on the basis of which public officials could accommodate their operations to the new regime." Black, 409 A.2d at 640 (explaining result in Davies). Certainly the financial burden imposed by our new rule in Auburn is nothing close to the burden contemplated by the rule change in Davies, -23- either in potential dollar liability or in the number of municipalities affected. As a general matter, as we noted in the Auburn decision itself, employers will have the opportunity to avoid the effects of the new rule by negotiating for waivers of the rule in future contracts. Only those employers whose contracts expired before our decision in Auburn, or fairly shortly thereafter, would not have had the opportunity to mitigate Auburn's effects by promptly negotiating a new contract (or negotiating to impasse) -- the status quo requirement only applies during contract hiatus. Even for those employers, the burden could not have been too great, since the case now before us is the only one that falls into that category and that has been filed since Auburn was issued. In sum, we find no legal or equitable reason to treat the parties here differently than we treated the parties in Auburn. The parties in the two cases are similarly situated, and the arguments regarding manifest injus- tice here are even less compelling than they were in Auburn. (The employer in Auburn made essentially the same arguments on appeal to Superior Court that the employers make here. That appeal was later withdrawn.) The City and the School Committee have violated section 964(1)(A) and (E) of the MPELRL by failing, pending negotiations for a successor agreement, to main- tain the status quo with respect to members of the general government bargaining unit, as reflected in the wage plan in Appendix B of the 89-91 agreement. We will order the City and the School Committee to cease and desist from refusing to pay step increases that became due on or after July 1, 1991, pursuant to Appendix B. We will also order the employers to reim- burse each unit member for wages lost during the period from July 1, 1991, to the date of this Order. Payment shall be made within 30 days of the date of this Order. Interest shall begin to accrue on the 31st day, and shall be computed in the manner described in Council 74, AFSCME, v. City of Bangor, No. 80-41, 2 NPER 20-11042 (Sept. 24, 1980), modified in part, No. CV-80-574 (Me. Super. Ct., Pen. Cty., Jan. 28, 1982), Board Order aff'd, 449 A.2d 1129 (Me. 1982). Finally, the City and the School Committee will be ordered to continue to pay step increases in accordance with Appendix B until such time as a successor agreement is negotiated and signed that pro- vides otherwise. -24- ORDER On the basis of the foregoing stipulations, findings of fact 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) (1988 and Supp. 1991), it is hereby ORDERED: That the City and the School Committee shall: 1. Cease and desist from refusing to bargain with members of the Lewiston general government bargaining unit by unilaterally changing the wages paid to unit members pending negotiations for a successor agreement; 2. Take the following affirmative actions that are necessary to effectuate the policies of the MPELRL: a. Reimburse members of the bargaining unit for wages lost during the period from July 1, 1991, to the date of this Order. Wages shall be calculated in accordance with the step increase plan in Appendix B of the 89-91 agreement. Payment shall be made within 30 days of the date of this Order. Interest shall begin to accrue on the 31st day. b. Continue to calculate and pay wages to unit members in accordance with Appendix B of the 89-91 agreement until such time as a successor agreement is nego- tiated and signed that provides otherwise. Dated at Augusta, Maine, this 11th day of September, 1992. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1991), /s/___________________________ to seek review of this Decision Peter T. Dawson and Order by the Superior Court. Chair To initiate such a review an appealing party must file a complaint with the Superior Court /s/___________________________ within fifteen (15) days of the Howard Reiche, Jr. date of this decision, and Employer Representative otherwise comply with the re- quirements of Rule 80C of the Maine Rules of Civil Procedure. /s/___________________________ George W. Lambertson Employee Representative -25-