dissenting.
I must respectfully dissent because the Court’s decision, in my view, affirms a Board decision which comes perilously close to embracing the statutory impasse concept urged by SAD 43. According to SAD 43, if the parties have exhausted the impasse resolution procedures set forth in 26 M.R.S.A. § 965 and are unable to reach an agreement after continuing efforts at negotiation, they are by definition at a statutory impasse. Although the Board does not explicitly adopt this concept of statutory impasse, it sanctions unilateral action by SAD 43 under circumstances that would normally preclude a finding of impasse. These circumstances include ongoing negotiations that have yielded progress and a violation by SAD 43 of its duty to bargain in good faith during these negotiations. Although a finding that further bargaining would be futile is at the heart of the impasse doctrine,1 and although the Board made no finding that further negotiations would be fruitless, the Court excuses this *355omission because the parties had completed mediation, fact-finding and arbitration, and had continued negotiations for a reasonable period of time after receiving the arbitration report. These facts describe an ongoing process. They do not describe deadlock.
Given the incompatibility of unilateral action by the employer with the concept of collective bargaining, and given the substantial advantage to the public employer inherent in the right to declare an impasse and unilaterally impose wage and insurance terms, the Court should insist that the Board apply the same rigorous standard to the finding of impasse that the Board applied in such cases as MSEA v. Bureau of Mental Retardation, No. 79-43 (Me.L.R.B. Dec. 6, 1979) and Sanford Firefighters v. Ackerman, No. 79-62 (Me.L.R.B. Dec. 5,1979). The Board’s application of a diluted impasse standard in this case will have the inevitable effect of compromising the effectiveness of the statutory impasse resolution procedures so critical to the Board’s holding in Auburn Firefighters v. City of Auburn, No. 89-01 (Me.L.R.B. Mar. 31, 1989) that, absent extraordinary circumstances, the employer’s implementation of a last best offer prior to the completion of requested impasse resolution procedures will constitute a per se violation of 26 M.R.S.A. § 964(1)(E). The ease of unilateral implementation by the employer after the exhaustion of the statutory impasse resolution procedures will be a disincentive to dispute resolution by the employer during the statutory impasse resolution process. For that reason the diluted impasse standard approved in this case is contrary to the premise of the Municipal Public Employees Labor Relations Law and fundamental tenets of fairness in public sector bargaining.
Post-Arbitration Negotiations
The arbitrator’s report was issued around July 9, 1992. That report made recommendations on wages, insurance and retirement payment, and made binding determinations on all other issues including a two year duration of agreement. The Association informed the superintendent of SAD 43 by letter dated August 17, 1992 that the educational technicians accepted the arbitrator’s report by ratifying “their contract as negotiated and arbitrated ...” and requested the Directors’ “status concerning the contract.” By correspondence dated September 16, 1992, SAD 43 sent to the Association a draft of the proposed collective bargaining agreement and a “last best proposal ...” on wages, medical insurance, sick leave (retirement payment) and duration.
On September 28, 1992, the Association sent a ten day notice to Superintendent Richards to meet and negotiate the non-binding portions of the arbitrator’s report. In a letter dated October 1, 1992, SAD 43 confirmed the date for a meeting between the parties. On October 13, 1992, the parties met to discuss the draft of the proposed contract and to discuss the Directors’ “last best offer.” The Directors did not make any firm proposals, but the Association made some counter-proposals and the retirement payment issue was resolved. The Association also made several corrections and additions to the draft of the tentative agreement. Although the Association did not agree to SAD 43’s last best proposal, the Association made a coun-terproposal which the negotiating team for SAD 43 agreed to present to the entire Board of the District. At the October 13, 1992 meeting the Association also informed SAD 43 that the duration of agreement was a binding determination.
After difficult and protracted negotiations that had begun in June 1990, most of the issues between the parties had been resolved at this juncture in October 1992. On the critical issues of health insurance and wages, the differences between the two parties were as follows:
Association: Blue Cross Blue Shield Major Medical UCR would be printed into the contract and paid at 100% for current en-rollees, paid at 100% of the individual premium for new enrollee; grandfather current “double dippers” on medical insurance and SAD 43’s language for all new enroll-ees on “double dippers.”
SAD Jf3: Maine School Management Association Health Insurance Trust Plan III or a comparable plan, no “double dipping,” selection of a better plan or additional family coverage at employee’s expense; *356implement a section 125 to pay the premium difference; Board would contribute $144.12 per month for the individual coverage, $324.29 per month for 2 person coverage and $394.91 per month for family coverage; new enrollees $144.12 per month. Association: Salary effective July 1, 1991 — June 30, 1992, year 1 and .10 per hour more than SAD 43’s proposal for year two.
SAD JpS: Salary effective January 1, 1992 — June 30, 1992, year 1 and .10 per hour less than the Association’s proposal for year two.
By letter dated November 3, 1992, SAD 43 modified-somewhat its last best proposal on health insurance by increasing the amounts the District would contribute for various coverages. At the same time, SAD 43 notified the Association that it would offer and implement its modified last best proposal on wages and insurance. It also stated that the duration of the contract would begin upon the execution of any agreement. In response to this communication, the Association immediately filed for mediation concerning wages, health insurance, and duration of agreement, and a mediation session was scheduled for January 21, 1993. On November 20, 1992, SAD 43 unilaterally implemented its wage proposal by including a wage increase in the employees’ paychecks. SAD 43 implemented its insurance proposals effective December 1, 1992 by deducting payments from employees for insurance premiums, and ending premium payments for employees covered under a spouse’s insurance plan.
In Sanford Firefighters v. Ackerman, No. 79-62 (Me.L.R.B. Dec. 5, 1979), the Board evaluated the employer’s declaration of an impasse and found it deficient for the following reasons:
Substantial progress was being made; there were only three issues remaining to be resolved; and the parties expected to meet again on these issues after the fourth mediation session, as did the mediator. When Ackerman declared impasse he did so without consulting with the Association; he therefore could not, and admitted that he did not, know whether there was indeed a deadlock.
Sanford Firefighters Ass’n, No. 79-62, at 9. Although the Board was addressing a claim of impasse prior to the exhaustion of the statutorily mandated impasse resolution procedures, I reject SAD 43’s contention that the Board’s approach to impasse in this pre-exhaustion setting is irrelevant to the claim of impasse here. The factors cited by the Board in the Sanford Firefighters case are all present here: (1) The parties were making progress in their post-arbitration negotiations. (2) Few issues remained to be resolved. (3) The parties had agreed to meet to attempt to resolve the outstanding issues. (4) The impasse was declared without consultation with the Association. These undisputed facts do not support a finding that the parties were hopelessly deadlocked and unwilling to compromise. They do not support a finding that any future negotiations would have been fruitless. They only support a finding that SAD 43 lost its patience and, in so doing, implemented its last best offer in a manner that impermissibly denigrated the bargaining agent.2 In these circumstances, I can only explain the Board’s finding of an impasse by its unstated adoption of SAD 43’s concept of statutory impasse.3
SAD iS’s Refusal to Bargain in Good Faith
The duty to negotiate in good faith includes the duty to participate in interest arbitration. As the Board notes in its decision, “[f]or that requirement to be meaningful, it must include the requirement to implement the arbitrator’s binding determinations *357unless overturned on appeal.” SAD 43’s refusal to implement the two year duration decision of the arbitrators violated that obligation. That refusal was unmistakably linked to SAD 43’s last best proposal communicated to the Association in the post arbitration period. Specifically, the Board found as follows:
Since the arbitrators’ award was issued, MSAD 43 has consistently ignored the duration-of-agreement aspect of the award— making a “last best proposal” on duration in its September 15, 1992 letter to the Association (the offer being that the contract would be effective on the date of execution and expire on June 30, 1993); making the same “last best proposal” in its November 3rd letter; and including that last best proposal in a copy of the new contract mailed to the Association on November 28th. While the parties may agree to something other than what the interest arbitrators decided, neither party may unilaterally make changes in the award.
The refusal of SAD 43 to recognize its legal obligation to honor the arbitrators’ decision on duration of contract, and the Association’s strenuous objection to this refusal, unmistakably contributed to the inability of the parties to resolve their differences during the post-arbitration period. The Board abused its discretion when it concluded that there was an impasse justifying the unilateral implementation by the employer of wage and insurance provisions when the difficulty in resolving the outstanding issues was the result, in part, of unlawful action by the employer. As one commentator has noted: “The impasse exception to the unilateral action proscription goes hand in hand with good faith. Absent good faith bargaining there can be no impasse.”4 Again, I can explain the Board’s indulgence of SAD 43’s unilateral action despite a violation of the duty to bargain in good faith only because the violation occurred after the exhaustion of the mandated impasse resolution procedures. This position of the Board comes perilously close to an acceptance of the statutory impasse doctrine.
For the reasons stated, I would vacate the decision of the Superior Court and direct the court to enter an order vacating the order of the Board dismissing the Association’s prohibited practice complaint and remanding the matter to the Board with instructions to issue an order rescinding the unilateral actions of SAD 43 and ordering them to cease and desist from further unilateral changes.
. Alsey Refractories Co., 215 N.L.R.B. 146 (1974), cited in James W. Heller, Unilateral Action in a Concession Bargaining Context, 35 Lab.L.J. 747, 754 (1984).
. See Auburn Firefighters v. City of Auburn, No. 89-01, at 23 (Me.L.R.B. Mar. 31, 1989).
. I reject the Association’s position that a unilateral request for renewed mediation in the post-arbitration period can defeat any finding of an impasse. That argument is simplistic and invites contrivance designed to defeat any possibility of a finding of an impasse. I also do not endorse the Association's view that the parties must repeat the cycle of statutory impasse resolution procedures. Rather, as already indicated, I agree with the Association’s view that a declaration of impasse by the employer after the exhaustion of the statutory impasse resolution procedures should be subjected to the rigorous scrutiny historically applied to such a declaration.
. James W. Heller, Unilateral Action in a Concession Bargaining Context, 35 Lab.L.J. 747, 754 (1984).