State of Maine v. MSEA, Decision on Remand No. 81-56, original Board decision in 
Nos. 81-44 & 81-56 affirmed by Superior Court CV-81-472, reversed and remanded by
Law Court in 443 A.2d 948 (Me. 1982)

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   CASE NO. 81-56
                                                   Issued:  May 21, 1982


_________________________
                         )
STATE OF MAINE,          )
                         )
           Complainant,  )
                         )
  v.                     )                DECISION AND ORDER ON REMAND
                         )
MAINE STATE EMPLOYEES    )
ASSOCIATION,             )
                         )
           Respondent.   )
_________________________)


     This is a prohibited practices case, remanded to the Maine Labor
Relations Board ("Board") on May 17, 1982 by Order of the Kennebec Superior
Court in State of Maine v. Maine State Employees Association and Maine Labor
Relations Board v. State of Maine, Nos. CV-81-472 and CV-81-499.  The Court
mandated in its Order as follows:

              "2. The decision and order of the Maine Labor Relations
         Board in their docket number 81-56 is REMANDED to the Maine
         Labor Relations Board consistent with the opinion of the Law
         Court."


                                 JURISDICTION

     The Maine State Employees Association ("MSEA") is the bargaining agent
within the meaning of 26 M.R.S.A. Section 979-H(2) for the state employee
Administrative Services; Professional and Technical Services; Operations,
Maintenance and Support Services; Law Enforcement Services; and Supervisory
Services bargaining units.  The State of Maine ("State") is the public
employer as defined in 26 M.R.S.A. Section 979-A(5).  The jurisdiction of the
Maine Labor Relations Board to hear this case and to render a decision and
order herein lies in 26 M.R.S.A. Section 979-H.


                               FINDINGS OF FACT

     Upon review of the entire record, the Board finds:

                                     -1-


     1.  The Complainant MSEA, having offices and a place of business at 65
State Street, Augusta, Maine, 04330, is the certified/recognized bargaining
agent of the state employee Administrative Services; Operations, Maintenance
and Support Services; Law Enforcement Services; Professional and Technical
Services, and Supervisory Services bargaining units.

     2.  The Respondent State is the public employer as defined by the State
Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 979-A(5).

     3.  MSEA and the State entered into negotiations on November 5, 1980,
jointly for the Administrative Services; Operations, Maintenance and Support
Services; Law Enforcement Services; and Professional and Technical Services
bargaining units and, on November 6, 1980, for the Supervisory Services
bargaining unit for collective bargaining agreements to succeed agreements
expiring on June 30, 1981.

     4.  A number of bargaining sessions were held, prior to the date of
filing of the original complaint herein, and negotiations continued,
subsequent to said filing.

     5.  The State, alleging that the same are not mandatory subjects of
bargaining under Section 979-D(1)(E) of the Act, refused and continued to
refuse to negotiate with respect to reclassifications and reallocations
proposed by MSEA.

     6.  Classification and reclassification are the assignment or reassign-
ment, respectively, of a position or group of positions to an occupational
classification which is appropriate for compensation and employment purposes.

     7.  Allocation and reallocation are the assignment or reassignment,
respectively, of a classification to the appropriate grade in the compensation
plan.

     8.  MSEA insisted, to the point of impasse, that the State bargain over
its aforesaid reclassification and/or reallocation proposals.


                                   DECISION

     The Supreme Judicial Court, in its Decision in the case of State of Maine
v. Maine State Employees Association and Maine Labor Relations Board, Me., ___
_____ A.2d ________, Decision No. 2917, Law Docket No. Ken-82-7 (4/6/82), held
that the reclassification and/or reallocation bargaining proposals, offered by
the MSEA, were not mandatory subjects of bargaining under the State Employees
Labor Relations Act, 26 M.R.S.A. Section 979, et seq.

                                     -2-


     The issues, on remand, herein are:  (1) whether or not, as a matter of
fact, the MSEA insisted, to the point of impasse, to bargain over its
reclassification and/or reallocation proposals, and (2) if so, did such
conduct violate the Act.  We have found, based upon our review of the entire
record herein, that the MSEA did insist, to the point of impasse, to bargain
over its aforesaid proposals.  In MSEA v. State of Maine, M.L.R.B. Case No.
80-09 (12/5/79), we held as follows:

         "The law is well-settled that a party commits a per se violation
     of the duty to bargain by insisting to impasse that a non-mandatory
     subject of bargaining be negotiated.  See, e.g., N.L.R.B. v. Wooster
     Division of Borg-Warner Corp., 356 U.S. 342 (1958); Teamsters Local
     48 v. Town of Falmouth, MLRB Nos. 79-10 and 79-18 at 6-7 (1979).  The
     rationale underlying this venerable labor law principle is that insist-
     ence upon bargaining over non-mandatory subjects of bargaining 'is, in
     substance, a refusal to bargain about the subjects that are within the
     scope of mandatory bargaining.'  356 U.S. at 349."

MSEA v. State of Maine, supra, at 4.  Since the MSEA insisted on negotiating
its non-mandatory bargaining subject proposals to the point of impasse it has
committed a per se violation of the Act.


                                    ORDER

     On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. Section 979-H, it is ORDERED:

          That the Maine State Employees Association, and its agents and
          members, cease and desist from insisting that the State of Maine
          negotiate over its reclassification and/or reallocation bargaining
          proposals for various state employees.

Dated at Augusta, Maine, this 21st day of May, 1982.

                                          MAINE LABOR RELATIONS BOARD


The parties are advised of their right    /s/________________________________
pursuant to 26 M.R.S.A. Section 979-H     Edward H. Keith, Chairman
(7) to seek a review by the Superior
Court of this decision by filing a com-
plaint in accordance with Rule 80B of     /s/________________________________
the Maine Rules of Civil Procedure        Don R. Ziegenbein, Employer 
within 15 days of the receipt of this     Representative
decision.

                                          /s/________________________________                                        -3-
                                          Harold S. Noddin, Employee
                                          Representative

                                     -3-