On November 28, 2011, the Maine State Troopers Association
filed a petition for an interpretive ruling on whether the State
of Maine, Department of Public Safety, has an obligation to
bargain the issue of replacement savings for the return of merit
increases which were suspended in the budget enacted by the 125th
Maine Legislature.  Through this petition, the Board is asked to
interpret the scope of the obligation to bargain in 26 M.R.S.A. 
§965(1)(C), the effect of the terms of section E-1 of the budget,
and the impact of various provisions in the collective bargaining
agreement, particularly the zipper clause and a reopener
provision.
 
      The Maine State Troopers Association (MSTA) is represented
by William K. McKinley, Esq., who submitted a Memorandum of Law
with the Petition.  A Memorandum of Law in Opposition to the
Petition was submitted by Cynthia L. Montgomery, Esq. on behalf
of the State of Maine.  The Board, with Peter T. Dawson, Chair;
Karl Dornish, Jr., Employer Representative; and Carol B. Gilmore,
Employee Representative, met on January 18, 2012, to deliberate
on this matter.
                    
     The basic facts underlying this petition are as follows: 
The MSTA and the State of Maine, Department of Public Safety, had
[end of page 1]


a collective bargaining agreement that was due to expire on
June 30, 2011.  For some period prior to the expiration, the
parties were in negotiations for a successor agreement.  The
parties were aware that the Legislature was likely to enact
legislation similar to what was enacted in the previous budget
which had the effect of freezing merit increases during the two-
year budget period.  These negotiations for a successor agreement
led to a Memorandum of Agreement executed by the parties on June
8, 2011.  The Memorandum described the agreed-upon changes to
various articles of the expiring agreement and included the
following "reopener" language:
  
     If during the term of the 2011-2013 collective
     bargaining agreement, the Director of the State Budget
     Office determines that there is a surplus of funds in
     personal services, the State will notify MSTA and
     notwithstanding any other provisions of the collective
     bargaining agreement, upon request by either party, the
     agreement will be reopened for the limited purpose of
     bargaining over merits and/or longevity, if these
     benefits are reduced by legislative action.

     The budget bill was enacted as emergency legislation and
signed by the Governor On June 20, 2011.  P.L. 2011, ch. 380. 
Section E-1 prohibited the payment of merit increases[fn]1:
      
     Sec. E-1. Merit increases. Nothwithstanding the Maine
     Revised Statutes, Title 26, section 979-D or 1285 or
     any other provision of law, any merit increases,
     regardless of funding source, scheduled to be awarded
     or paid between July 1, 2011 and June 30, 2013 to any
     person employed by the departments and agencies within
     the executive branch, including the constitutional
     officers and the Department of Audit, the legislative
     branch and the judicial branch may not be awarded,
     authorized or implemented.  These savings may be
     replaced by other Personal Services savings by 

     1  Section E-2 imposed a similar restriction on longevity
payments for many employees.

[end of page 2]



     agreement of the State and the bargaining agents
     representing state employees. 
     
     At some point after the Memorandum of Agreement was executed
on June 8, 2011, the MSTA made a proposal to replace the merit-
pay savings.  The State responded by asserting that both the
reopener language in the Memorandum and the zipper clause in the
contract precluded such discussions.  The zipper clause states,
in full:
 
     Article 12. EMBODIMENT OF AGREEMENT 
          Except as herein provided, neither party shall
     demand any modification to this Agreement nor shall
     either party be obligated to bargain collectively with
     the other with respect to any subject or matter
     specifically referred to or covered herein.

     The Petition for Interpretive Ruling includes a number of
factual assertions that the Association made proposals for
replacement savings before and after ratification of the
collective bargaining agreement.  The State disputes some of
these facts and disputes the Association's characterization of
the State's response to the proposals.

     The Petition for Interpretive Ruling essentially seeks a 
ruling from the Board that §979-D of SELRA and §E-1 of the budget
bill impose an obligation to bargain over replacement savings and
that the obligation is not affected by the zipper clause or the
reopener language.  The MSTA also seeks various declarations
regarding the extent of the State's obligation to provide
information to the MSTA to support its rejection of the
proposals.

     Section 41 of the MLRB rules on prohibited practices deals
specifically with requests for an interpretive ruling.  See MLRB 

[end of page 3]

Rule Ch. 12, §41.  The initial portion of that section states the
appropriate circumstances for an interpretive ruling:
 
     § 41.  Interpretive Rulings.  An interpretive ruling is
     a means for determining specific questions as to the
     prospective rights, obligations, or liabilities of a
     party when controversy or doubt has arisen regarding
     the applicability of a specific statute, Board order or
     rule.  A petition for an interpretive ruling may not be
     used to resolve factual disputes between adversaries
     and may not be used as a substitute for other remedies
     provided by the collective bargaining laws.  

    
     Interpretive Rulings are not appropriate for all questions. 
The classic example of an appropriate request for an interpretive
ruling is when the parties are bargaining and there is a
disagreement on whether a particular subject is a mandatory
subject of bargaining.  In these kinds of cases, the only
available alternative for the petitioner would be to take the
action being contemplated and risk being the subject of a
prohibited practice complaint.  See, e.g., City of Portland,
Petition for Interpretive Ruling, No. 01-IR-01 (June 27, 2001)
(Petition inquiring whether the establishment of a Police
Civilian Review Subcommittee would be a mandatory subject of
bargaining was appropriate); Lewiston Education Association and
Lewiston School Committee, No. 08-IR-01 (Jan. 15, 2009)(Petition
inquiring whether particular provisions were educational policy
and therefor not mandatory subjects of bargaining was
appropriate).  Similarly, a request for an interpretive ruling is
inappropriate if it seeks an opinion on the legality of past
actions, rather than "prospective rights, obligations, or
liabilities".  See Lewiston School Committee Petition for
Interpretive Ruling, No. 08-IR-01 (April 20, 2006) (Petition
inappropriate because it sought a ruling on whether past conduct
violated fact-finding rules).  Finally, Rule 41 states that a 

[end of page 4]

petition for interpretive ruling is not appropriate when there
are factual issues in dispute or as a substitute for other
remedies available.
      
     In this case, the question presented is really whether the
State has violated and is continuing to violate SELRA by refusing
to bargain over the Association's proposals for replacement
savings.  The facts presented describe past action and the
Petition is clearly seeking a ruling on whether the State's
conduct is in violation of the law, not whether some planned
conduct by the petitioner would be a violation.  Couching the
issue in terms of prospective rights and obligations does not
alter the fact that there are factual matters in dispute and the
issue should be resolved through filing a prohibited practice
complaint.  For these reasons, we will not consider the the
Petition for Interpretive Ruling as presented.
 
     The Petition does raise a valid question for this Board that
can be addressed through an interpretive ruling.  That question
is limited to how section E-1 of P.L. 2011, ch. 380 affects the
statutory obligation to bargain imposed by §979-D of SELRA.  We
offer the following interpretation of section E-1, rather than
rejecting the Petition in its entirety.
 
     Section E-1 consists of only two sentences.  The first
sentence prohibits the payment of any merit increases for the two
fiscal years of the budget.  If section E-1 only contained that
first sentence, it would have the effect of prohibiting
negotiation of merit increases because SELRA removes from the
mandatory subjects of bargaining those matters that are
"prescribed and controlled by public law". 26 M.R.S.A. §979-
D(1)(E)(1).  Clearly, section E-1 controls the payment of merit
increases. 

[end of page 5]

     The second sentence, "[t]hese savings may be replaced by
other Personal Services savings by agreement of the State and the
bargaining agents representing state employees", preserves the
scope of the statutory duty to bargain by allowing the parties to
implement merit increases by agreement if the cost is offset by
replacement savings.  Without the second sentence, only an
amendment to section E-1 of the public law could restore merit
increases.  
 
     The second sentence does not expand the scope of bargaining
beyond the obligations contained in the duty to bargain imposed
by §979-D of SELRA.  Thus, whether a party has waived its right
to bargain while a collective bargaining agreement is in effect
involves the same waiver analysis that existed prior to the
enactment of section E-1. 
     
     
Issued this 19th day of January, 2012.