State of Maine v. Maine State Employees Association, 443 A.2d 948 
(Me. 1982), vacating Superior Court decision on Nos. 81-44 & 81-56, 
CV-81-472.  Law Court reversed Maine State Employees Association v. 
State of Maine, No. 81-44 and remanded No. 81-56. 

MAINE SUPREME JUDICIAL COURT           Reporter of Decisions
                                       Decision No. 2917
                                       Law Docket No. Ken-82-7

                            STATE OF MAINE




                      MAINE LABOR RELATIONS BOARD



                            STATE OF MAINE

                          Argued March 1, 1982
                          Decided   April 6, 1982

       and WATHEN, JJ.


     The State appeals from a judgment of the Superior Court,
Kennebec County, which affirmed the decision of the Maine
Labor Relations Board (MLRB) that proposals to reclassify and
reallocate certain groups of employment positions in state
service are mandatory subjects of bargaining under the State
Employees Labor Relations Act, 26 M.R.S.A.  979-979-P.  We
sustain the appeal, vacate the judgment, and remand with

     The Maine State Employees Association (MSEA) is the cert-
ified or recognized bargaining agent for five state employee
bargaining units.  Anticipating the June 30, 1981, expiration
of collective bargaining agreements between the employer-State


and these units, MSEA and the State commenced negotiations on
November 5 and 6, 1980, for a successor agreement.  During the
course of these negotiations, MSEA presented proposals seeking
to reclassify more than twelve groups-of positions and to
reallocate more than one hundred specific classifications.[fn]1
These proposals would require resolution through the collective
bargaining process of Particular requests for reclassifications
and reallocations.   The State, however, insisted that classi-
fications and allocations are not mandatory subjects of bar-
gaining under 26 M.R.S.A.  979-D(1)(E), and it refused to
negotiate over the proposals.  MSEA filed with the MLRB a pro-
hibited practices complaint against the State, alleging that
the State violated 26 M.R.S.A.  979-C(1)(A) and (E), and
requesting that the Board order the State to negotiate on the
classification and allocation proposals. (MLRB Case No. 81-44.)
The State, in turn, filed a prohibited practices complaint
against MSEA claiming that MSEA had insisted that the State
bargain over the proposals in violation of 26 M.R.S.A. 979-C
(2)(B). (MLRB Case No. 81-56.)  Because, the State asserted,
these issues are not mandatory subjects of bargaining, MSEA's

1.  In its decision, the MLRB defined classification and reclassi-
fication as "the assignment or reassignment, respectively, of a
position or group of positions to an occupational classification
which is appropriate for compensation and employment purposes."
A classification is thus the characterization of a particular job
in terms of a more generic name.  For example, the duties per-
formed by employee A might be such that A should be designated,
or classified, as "Secretary II."
     An allocation or reallocation is "the assignment or reassign-
ment, respectively, of a classification to the appropriate grade
in the compensation plan."  For example, the assignment of the
classification, Secretary II, to pay range 17 is an allocation.


conduct, resulting in an impasse in the negotiations, was ille-

     After consolidating these two cases, the Board held a
hearing which extended over several days.  A decision was issued
on September 21, 1981, finding that classifications and allo-
cations were in fact mandatory subjects of bargaining under
section 979-D(1)(E).  It therefore ordered the State to nego-
tiate with MSEA over its proposals, and dismissed the State's
complaint in Case No. 81-56.

     Pursuant to M.R.Civ.P. 80B and 26 M.R.S.A.  979-H(7), the
State commenced an action in the Superior Court to review the
Decision and Order of the Board. (CV-81-472.)  Several weeks
later, MSEA also filed a complaint in the Superior Court seeking
an order that would compel the State to comply with the Order
of the MLRB that it must bargain over classification and allo-
cation. (CV-81-499.)  See  979-H(5).  These two cases were
ordered consolidated.  See id.  The court subsequently issued
a judgment affirming the decision and order of the MLRB.[fn]2

     The State has seasonably appealed from theJudgment entered
in both cases.[fn]3

2.  The court's order also denied the relief sought by "the
Plaintiff."  Because this single order disposed of both consol-
idated cases, it was entered on the docket of both CV-81-472,
the State's action against MSEA and the MLRB, and CV-81-499,
MSEA's action against the State.  The literal effect of this
order is anomalous as it both affirms the Board's order but
denies enforcement.  Even though the order does not appear to
grant specific relief to MSEA, it does clearly deny specific
relief to the employer, which we find to be error.

3.  But see note 2 supra, raising the possibility, which we do
not explore, that the lower court granted no relief adverse to
the State in CV-81-499.


     Title 26 M.R.S.A.  979-D(1)(E)(1) requires the public em-
ployer and the bargaining agent,[fn]4 to bargain collectively with
respect to matters of wages, hours, working conditions, and
contract grievance arbitration.  Section 979-D(1)(E)(2),
however, provides that section 979-D(1)(E)(1) "shall not be
construed to be in derogation of or contravene the spirit and
intent of the ... personnel laws."  Thus, as we give these
words of limitation their plain and ordinary meaning, see
Paradis v. Webber Hospital, Me., 409 A.2d 672, 675 (1979), the
duty to bargain collectively, established in section 979-D(1)(E)(1),
does not extend to those occasions where such negotiations would
restrict or obstruct the force and operation of the personnel

     We also note that the Board has participated fully as an
appellee by filing a brief and presenting oral argument.  Because
the State Employees Labor Relations Act vests the Board with prose-
cutorial duties, 26 M.R.S.A.  979-H(2) and 979-H(5), active
participation of this kind is warranted in selected review pro-
ceedinqs.  See State v. Maine Labor Relations Board, Me., 413
A.2d.510, 512-513 (1980).  Such participation, however, should
not be routine or automatic.  See id. at 513.  Rather, the Board
must exercise judgment and discretion so as to assume an active
role where there exist public interests that are different from
the interests of the parties themselves.  The need for the con-
sidered ministrations of the public agency is clear in that situ-
ation in order that the reviewing courts may render a decision
predicated upon a full perspective of the issues.  Where, on the
other hand, the positions urged by the Board in review matters
are merely cumulative of those presented by other parties to the
action, where the interests promoted by the Board are adequately
represented by the parties, or where the Board's special enforce-
ment  or prosecutorial powers are not implicated, participation by
the Board may well be unjustified.

4.  The State and MSEA are, respectively, the public employer of
and the bargaining agent for the relevant bargaining units in
this case.  See 26 M.R.S.A.  979-(A)(1), (5).


     The procedure governing review of any request for reclas-
sification and reallocation is prescribed in 5 M.R.S.A.  593
(Supp. 1981).  The penultimate paragraph of this statute reads:

          Any request for classification of positions,
     the allocation of new positions or the reallocation
     of existing positions in the classified service or
     the unclassified service, shall be processed by the
     Commissioner of Personnel and the commissioner's
     determination made within 45 days from the date
     of filing the request with the Department of
     Personnel.  Any employee or appointing authority
     that is a party to the request may appeal to the
     State Personnel Board within 10 days after the
     expiration of the 45 days allotted for the process
     of such requests for hearing and review.  The
     board shall examine and review such appeal and
     make such changes as provided in this section.
     The board's decision in the appeal shall be given
     within 30 days after the hearing on the appeal,
     has been concluded.

These particular terms were added to section 593 in 1977 in
order to expedite the review process and thus to minimize
delays in alleviating the inequities associated with an
improper classification or allocation.  Leg. Doc. 1610, 108th
Leg. "Statement of Fact" (1977).[fn]5  See also 5 M.R.S.A.  551-A
(Supp. 1981), enacted in P.L. 1981, c. 289,  1, stating the
purpose of the Personnel Law, 5 M.R.S.A.  551-903, to be
the "hiring and retaining [of] the best person for a position

5.  The specific pertinent language of the Statement of Fact
          State employees subject to the reclassi-
      fication process should receive prompt consid-
      eration.  Employees cannot work 'out of class'
      without creating inequities which are contrary
      to the intent of the Personnel Law and the doc-
      trine of 'equal pay for equal work.'  Delays in
      processing should be minimized.


as quickly as possible.  To this end, all state agencies shall
take steps to speed up handling of matters subject to, and to
reduce and simplify the procedures and paperwork required by,
the Personnel Law." (Emphasis added.)

     Thus, the Personnel Law, through section 593, imposes
strict time constraints on the processing of requests for
reclassifications and reallocations.  Indeed, the very pur-
pose underlying the 1977 enactment of the penultimate para-
graph of section 593 was to mandate the speedy review of such
requests.  Under this section, the Commissioner of Personnel
must issue a ruling on the request for classification or
allocation within forty-five days of its filing.  Further,
a review by the State Personnel Board may not exceed thirty
days following the hearing.  Thus, the matter can be out of
the employee's hands for a total of no more than seventy-five
days before he or she is entitled to final agency action.

     A review of the State Employees Labor Relations Act, on
the other hand, clearly demonstrates that the statutory col-
lective bargaining mechanism is not amenable to temporal
restrictions.  Under section 979-D(1)(B), negotiations must
commence within ten days after a party has requested a meeting
for collective bargaining purposes, absent time arrangements
agreed upon in a prior written contract.  After good faith
negotiations have commenced, however, the achievement of an
agreement is a function not of statutory time requirements
but rather of the parties' ability to agree.  The statute
is clear that "neither party shall be compelled to agree to


a proposal or be required to make a concession."   979-D(1)
(E)(1).  It is thus axiomatic that the statute does not compel
an accord within a specific period of time.  Similarly, even
if one of the negotiating parties invokes the mediation pro-
cedures set forth in section 979-D(2), an agreement is not
guaranteed, because the mediator or mediators are vested with
statutory power only to

     exert every reasonable effort to encourage the
     parties to the dispute to settle their differences
     by conference or other peaceful means.  If the
     mediator or mediators are unable to accomplish
     this objective and to obtain an amicable settle-
     ment of the dispute between the parties, it shall
     then be the duty of the mediator or mediators to
     advise the parties of the services available to
     assist them in settlement of their dispute.  At
     this time, the mediator or mediators shall sub-
     mit a written report to the executive director
     [of the MLRB] stating the action or actions that
     have been taken and the results of their endeavors.

26 M.R.S.A  965(2)(E) [made applicable to the State Employees
Labor Relations Act by id.  979-D(2)(B)].

     Also available to the public employer and the bargaining
agent as a method of conflict resolution is the fact-finding
process.  This may be invoked in combination with mediation
services.  In this form, the fact-finding panel must "hear
the contending parties to the controversy" and may require
testimony of witnesses and the production of documentary and
other evidence pertinent to the issues.  26 M.R.S.A.  965(3)(B)
[made applicable to the State Employees Labor Relations Act by
id.  979-D(3)(C)].

     Finally, if the parties are unable to achieve a settlement
within forty-five days after the fact-finding panel submits its


findings and recommendations, "either party may petition the
board to initiate compulsory final and binding arbitration of
the negotiations impasse."   979-D(4)(B).  Upon receiving this
petition, the executive director is charged with determining
whether the parties have reached an impasse in their negotiations.
Id.  If an impasse is found, an arbitrator must be selected; this
process may consume more than fifteen days.  Id.  Once chosen,
the arbitrator must issue a report to the parties within thirty
days, unless that time period is extended by the executive
director.   979-D(4)(E).  Further, if the controversy is over
salaries, the arbitrator's report is advisory and is not binding
on the parties.   979-D(4)(D) .

     We set out this procedural outline of the collective bar-
gaining process under the State Employees Labor Relations Act
in order to bring into clear focus the long and arduous path
over which negotiating parties may be required to travel before a
settlement may be finally consummated.  Title 5 M.R.S.A.  593,
in contradistinction, is explicitly forged to bring any review
proceeding to an expeditious conclusion.

     MSEA seeks to require the reclassification of more than
twelve groups of positions and the reallocation of more than
one hundred specific classifications.  We conclude that to
require resolution of particular requests for reclassifications
and reallocations through the collective bargaining process
would "be in derogation of or contravene the spirit and intent"
of section 593 of the Personnel Law.  It would be impossible
to glean any assurance that the negotiating parties would be


capable of satisfying the legislative directive of expediency
required in such matters.  Indeed, submission of such requests
to the negotiating parties on the condition that prompt accord
be reported would only do violence to the principle that no
party may be compelled to agree to a proposal or be required
to make a concession.  See  979-D(1)(E)(1).

     An agreement in the collective bargaining process is the
product of good faith negotiations necessarily unhampered by
significant restrictions of time.  Determination of classi-
fications and allocations through the section 593 mechanism,
an administrative process, is, on the other hand, subject to
deadlines.  To allow such requests to be pursued through the
machinery of collective bargaining could fatally compromise
the fundamental legislative concern for expeditious resolution
of such requests.  As this would inhibit speedy determination
of such requests, and thus be in derogation or contravention
of the spirit and intent of the Personnel Law embodied in
section 593, we hold that requests for reclassifications and
reallocations are not mandatory subjects of collective bar-
gaining within the meaning of 26 M.R.S.A.  979-D(1)(E)(1).[fn]5

5.  In concluding that collective bargaining over specific pro-
posals to reclassify and reallocate certain groups of positions
would not be in derogation of or contravene the spirit and
intent of the Personnel Law, the Board, below, noted the extent
of the powers given the Commissioner of Personnel in 5 M.R.S.A.
 631, 633 and 634.  The powers vested in the Commissioner by
 631, 633 and 634 authorize him to promulgate rules and reg-
ulations concerning, inter alia, classifications and compen-
sation plans, to establish classifications, and to submit a
proposed allocation scheme to the Legislature.  The Board
reasoned that those powers, along with  593, should not be


     By so holding, we do not reach the merits of the State's
additional claims: (1) that reclassification and reallocation
do not constitute a mandatory subject of collective bargaining
exclusive of the section 979-D(1)(E)(2) exclusion upon which
this holding rests, (2) that they are matters prescribed or
controlled by public law and therefore exempt from collective
bargaining under section 979-D(1)(E)(1), or (3) that negoti-
ation over the matters would be in derogation of or contravene

read to foreclose collective bargaining over the matters there
covered.  To do so, it said, would "preclude all significant
collective bargaining".
     We do not find this analysis persuasive.  First, the pro-
mulgation of rules and regulations for personnel administration,
authorized by  631, is specifically included as a mandatory
subject of bargaining in 26 M.R.S.A.  979-D(1)(E)(1)(f).  The
performance of the procedural obligations imposed upon the
Commissioner by the specific language of  593 is clearly
separable from the powers conferred upon him by  631 to
prescribe or amend the substance of rules and regulations
for personnel administration.  The breadth of the latter
power clearly contemplates that its exercise will touch
subjects other than a specific "request for classification
of positions, the allocation of new positions or the reallo-
cation of existing positions in the classified service...."
5 M.R.S.A.  593.  Therefore, today's holding that the  593
procedural obligations imposed on the Commissioner are not
subject to collective bargaining does not imply that the
totality of the  631 power may not be treated, in appropri-
ate circumstances, as subject to mandatory collective bar-
     Further, the duties imposed on the Commissioner by 
631, 633 and 634 are not subject to the stringent time require-
ments required in the  593 review of requests for reclassi-
fication and reallocation of particular positions.  To the
extent that the exercise of  593 obligations requires greater
expedition than does the exercise of the powers and obligations
created by  631, 633 and 634, our holding in this cases does
not foreclose, because of the absence of significant temporal
requirements in either process, the availability of collective
bargaining over the matters covered in those sections of the
Personnel law.


the spirit and intent of merit system principles and thus not
mandatory under section 979-D(1)(E)(2).

     The entry is:

                                  Judgment in CV-81-472 vacated.
                                  Remanded to Superior Court with
                                  directions to enter order rever-
                                  sing decision of MLRB in Case No.
                                  81-44 and remanding to the MLRB
                                  for further proceedings in Case
                                  No. 81-56 consistent with the
                                  opinion herein.
McKusick, C.J., Nichols, Roberts, and Wathen, JJ., concurring.
Godfrey, J., concurring in separate opinion,

Godfrey, J., concurring:

     I concur in the result on the ground that the ad hoc
determination of questions of classification and allocation
that would result from the collective bargaining process
would be inconsistent with the systematic resolution of such
questions contemplated by the personnel laws, particularly
5 M.R.S.A.  593, 633 & 634.  Collective bargaining over
classifications and allocations seems to me to be barred by
operation of subsection 2 of 26 M.R.S.A.  979-D(1)(E), which
provides as follows:

          (2) Paragraph E subparagraph (1) shall not
          be construed to be in derogation of or contra-
          vene the spirit and intent of the merit system
          principles and personnel laws.