Maine State Employees Association v. State of Maine, MLRB No. 92-19 (Employer
Representative Reiche dissenting in part, Jan. 6, 1994), Rev'd, No. CV-94-27 
(Me. Super. Ct., Ken. Cty., May 10, 1994), Superior Court Judgment Vacated, complaint 
dismissed sub nom, Bureau of Employee Relations v. Maine Labor Relations Board, 
655 A.2d 326 (Me. 1995)

MAINE SUPREME JUDICIAL COURT                      Reporter of Decisions
                                                  Decision No. 7148
                                                  Law Docket No. Ken-94-541

                        BUREAU OF EMPLOYEE RELATIONS*


                         MAINE LABOR RELATIONS BOARD



                            Argued January 24, 1995
                           Decided February 23, 1995



     The Maine State Employees Association (MSEA)[fn]1 and the Maine Labor
Relations Board (the Board) appeal from a judgment entered in the Superior
Court (Kennebec County, Alexander, J.) vacating the Board's decision that
the Bureau violated section 979-C(1)(A)[fn]2 of the State Employees Labor

     * Although the State of Maine was named as the plaintiff in this action, we have
recaptioned the case to designate the proper party plaintiff.

     1. The Maine State Employees Association, as the certified bargaining agent,
represented all the employees of the State in the following bargaining units: Administrative
Services; Professional and Technical Services; Law Enforcement Services; Operations,
Maintenance and Support Services; and Supervisory Services.
     2. 26 M.R.S.A.  979-C(1)(A) (1988) provides:

     1.  Public employer prohibitions. The public employer, its representatives and
     agents, are prohibited from:

          A.  Interfering with, restraining or coercing employees in the exercise of the
          rights guaranteed by section 979-B.

Section 979-B provides:

          No one shall directly or indirectly interfere with, intimidate, restrain,
     coerce or discriminate against state employees or a group of state employees in
     the free exercise of their rights, hereby given, voluntarily to join, form and


Relations Act (the Act), 26 M.R.S.A.  979-979-Q (1988 & Supp. 1994),
during the second shutdown of state government in July 1991.  Because we
conclude that the issue presented is moot, we vacate the judgment and
remand to the Superior Court for dismissal of the complaint.

     This case was presented to the Board on the following stipulated facts:
When the State's operating budget expired at midnight on June 30, 1991,
the Governor declared a state of emergency and ordered a shutdown of all
state services except for emergency services that directly ensure the
public's health and safety.  State employees who provided nonessential
services were directed not to work.

     Thereafter, an interim emergency budget was enacted, effective from
July 8 to July 10, that authorized the government to operate for three days
to allow continued legislative debate.  On July 11, 1991, no budget had been
enacted, and the Governor again issued a proclamation closing all
nonessential services.  The second shutdown of state government lasted
from July 11 to July 16.  It ended on July 17, 1991, when the Governor
signed a new budget.  No employee directed not to work received a notice of
a layoff before the shutdown, and no other contractual layoff or recall
procedure was followed during the shutdown.

     By an agreement between MSEA and the Bureau dated August 23,
1991, MSEA waived any right to seek monetary damages arising out of the
two shutdowns in July 1991.  On December 31, 1991, MSEA filed with the

     participate in the activities of organizations of their own choosing for the
     purposes of representation and collective bargaining, or in the free exercise of
     any other right under this chapter.


Board a prohibited practice complaint against the Bureau seeking, inter alia,
a declaration that the Bureau violated the Act and an order from the Board
requiring the Bureau to post a notice stating that it interfered with the
employees' collective bargaining rights in violation of section 979-C(1)(A)
and that it would abide by the layoff and recall provisions of the respective
collective bargaining agreements of the employees and the Bureau during
any future shutdowns.

     By its decision of January 6, 1993, the Board found, inter alia, the
Governor had violated section 979-C(1)(A) by failing to use the parties'
contracted layoff procedures to determine on the basis of seniority which
employees would perform essential work during the July 11 to 16 shutdown.
Accordingly, the Board ordered the Bureau to cease and desist from
interfering with employees' collective bargaining rights by failing and
refusing to abide by contractual layoff and/or recall provisions of negotiated
collective bargaining agreements in violation of section 979-C(1)(A); and to
distribute a notice to all employees acknowledging the violation and stating
that it would comply with the Act in the future.  The Bureau has since
complied with the Board's order by providing the required notice to its

     Thereafter, pursuant to M.R. Civ. P. 80C and 26 M.R.S.A.  979-H(7)
(Supp. 1994), the Bureau filed a complaint in the Superior Court seeking
judicial review of the Board's decision.  The Superior Court concluded that
the budgetary emergency excused the Bureau's failure to follow the layoff
and recall procedures of the Seniority Article in the collective bargaining


agreements and vacated the Board's decision.

     As we have stated previously, we will not consider moot questions.
International Paper Co. v. United Paperworkers Int'l Union, 551 A.2d 1356,
1360 (Me. 1988).  We review for mootness by examining the record to
determine "whether there remain sufficient practical effects flowing from
the resolution of [the] litigation to justify the application of limited judicial
resources."  State v. Irish, 551 A.2d 860, 861-62 (Me. 1988) (quoting State
v. Gleason, 404 A.2d 573, 578 (Me. 1979)): see also International Paper,
551.A.2d at 1360-61 (action is moot when decision would not provide any
real or effective relief).  We have recognized three exceptions to the
mootness doctrine:

     First, the court will determine whether sufficient collateral
     consequences will result from determination of the questions
     presented so as to justify relief.  Second, while technically moot
     in the immediate context, questions of great public interest may
     nevertheless be addressed for the future guidance of the bar and
     of the public.  Third, issues which may be repeatedly presented
     to the trial court, yet escape review at the appellate level
     because of their fleeting or determinate nature, may
     appropriately be decided.

Irish, 551 A.2d at 862 (quoting Gleason, 404 A.2d at 578).

     None of the three exceptions to the mootness doctrine are applicable
to the circumstances of this case.  Rather, the present case presents a
situation similar to that in Bancroft & Martin, Inc. v. Local No. 340, Truck
Drivers, Warehousemen & Helpers Union, 412 A.2d 1216 (Me. 1980).  In
Bancroft & Martin, the defendant union appealed from an interlocutory
order granting a preliminary injunction enjoining it from blocking access to
the premises of the plaintiff's place of business.  After the injunction was


granted, however, the labor dispute that gave rise to the action had been
settled, the union members had returned to work, and there was no
reasonable expectation that the events would recur.  Id. at 1217.  We,
therefore, dismissed the appeal as moot.  Id.  Similarly, there was no live
controversy in this case and there was no remedy the Superior Court could
order that would have legal significance.  There had been compliance by the
Bureau with the relief ordered by the Board, and there was no effective relief
that could be provided.

     The entry is:
                             Judgment vacated.  Remanded with direction
                             to dismiss the complaint.
All concurring.


                                 STATE OF MAINE

Sitting as the Law Court                   Law Court Docket No. Ken-94-541
        v.                           )
                                     )                 MANDATE
LOCAL 1989, S.E.I.U.                 )

     The above-captioned cause having been brought before this Court,
sitting as the Law Court, from the Superior Court in the County of Kennebec,
and it having been heard and maturely considered:

     IT IS ORDERED that the Clerk of the Law Court enter upon the Law
Court Docket and certify to the Clerk of the Superior Court in the County of
Kennebec the following mandate therein:

     Judgment vacated.  Remanded with direction to dismiss the

Dated:  February 23, 1995

                                       For the Court,

                                       /s/[Caroline D. Glassman]______________