The facts as found by the Board may be briefly summarized as follows: The Association and SAD 43 began negotiations in June 1990 for an initial contract for the benefit of a combined unit of teacher aides and assistants. The negotiations were long and arduous, with the parties participating in three mediation sessions and in factfinding. Thereafter, the parties submitted several issues including wages, health insurance, and


In September of 1992, SAD 43 sent a proposal on wages and insurance to the Association. The terms were an improvement over those previously proposed by SAD 43 but not in complete accord with the arbitrators' recommendations. The parties met, but the Association rejected the offer and made counterproposals. In November of 1992, SAD 43 notified the Association of its last best offer on wages and insurance. The Association immediately filed for mediation. SAD 43 thereafter implemented its wage and insurance proposals.




The Association filed a prohibited practice complaint with the Board alleging that SAD 43 violated the Act by unilaterally implementing its proposal on wages and insurance and by failing to observe the arbitrators' binding determination on the duration of the agreement. The Board ruled that SAD 43 committed no violation of the Act by unilaterally imposing its wage and insurance proposals. It held that SAD 43 did violate the Act by refusing to implement the binding arbitration award on the duration of the agreement. The Association, pursuant to 26 M.R.S.A. § 968(5)(F), filed a petition for review of final agency action. The Superior Court affirmed the Board's order. The Association now appeals.




   I.  Unilateral Implementation of Last Best Offer Following
                             Impasse



We review the Board's decision directly, State v. Maine State Employees Ass'n, 538 A.2d 755, 757 (Me. 1988), for error of law, abuse of discretion, or clear error. See City of Bangor v. American Fed'n of State, City, & Mun. Employees, 449 A.2d 1129, 1134, 1136-37 (Me. 1982); 26 M.R.S.A. § 968(5)(F). As the agency charged with enforcement, we accord the Board considerable deference in construing the Act. Lundrigan v. Maine Labor Relations Bd., 482 A.2d 834, 836 (Me. 1984). The Board's findings on questions of fact are final unless clearly erroneous. 26 M.R.S.A. § 968(5)(F).




Maine law as well as federal law imposes the obligation to bargain in good faith as part of the statutory definition of collective bargaining. 26 M.R.S.A. § 965(1)(C); 29 U.S.C.A. § 158(d) (1973 & Supp. 1994). The National Labor Relations Act (NLRA) requires employers and employees' representatives in the private sector to bargain in good faith with respect to the mandatory subjects of bargaining; namely, "wages, hours, and other terms and conditions of employment." 29 U.S.C.A. § 158(d). In order to support the bargaining process and prevent it from being circumvented or disparaged, federal law has long been interpreted to prevent either party from unilaterally changing wages, hours or working conditions. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991); NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 1111-12, 8 L.Ed.2d 230 (1962); NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153, 1157, 1161-62 (D.C.Cir. 1992). Thus, while bargaining, and before impasse, a private employer is prevented from "going over the head" of the bargaining agent by unilaterally increasing


In 1978, the Board adopted from federal  See Litton, 501 U.S. at 198, 111 S.Ct. at 2221; McClatchy Newspaper, 964 F.2d at 1157; 1164-65; Easton, No. 79-14, at 4-5. Once the parties have in good faith exhausted the prospects of r

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