MSEA v. State of Maine (Zipper Clause Case), No. 82-05, affirmed (mostly) 
CV-83-09, reversed on waiver issue, 499 A.2d 1228 (Me. 1985).


STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   Case No. 82-05
                                                   Issued:  December 22, 1982

_______________________
                       )
MAINE STATE EMPLOYEES  )
ASSOCIATION,           )
                       )
         Complainant,  )
                       )
  v.                   )                       DECISION AND ORDER
                       )
STATE OF MAINE,        )
                       )
         Respondent.   )
_______________________)

     This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 979-H(2) on August 25, 1981 by the Maine State Employees Association
("Union").  The Union alleges in its complaint that the State interfered with,
restrained and coerced employees of the Department of Environmental Protec-
tion, the Department of Human Services, and the Board of Cosmetology, in
violation of Section 979-C(1)(A) of the State Employees Labor Relations Act
("SELRA").  Furthermore, the Union's complaint alleges that the State violated
its duty to bargain, as set forth in 26 M.R.S.A. Section 979-C(1)(E), by
making unilateral changes in the wages, hours, and working conditions of the
aforementioned employees and by failing and refusing to bargain in good faith
or to bargain over the impact of said unilateral changes.  The State filed a
response on September 16, 1981, denying that it had violated any provision of
26 M.R.S.A. Section 979, et seq.

     A pre-hearing conference on the case was held on September 25, 1981,
Alternate Chairman Donald W. Webber presiding.  Alternate Chairman Webber
issued a Pre-Hearing Conference Memorandum and Order, on September 28, 1981,
the contents of which are incorporated herein by reference.

     Hearings herein were held on October 14, 1981 and on November 18, 1981,
Chairman Edward H. Keith presiding, with Employer Representative Don R.
Ziegenbein and Employee Representative Harold S. Noddin.  The Union was repre-
sented by Ann R. Gosline, Staff Attorney, and the State by Michael C. Ryan,
Esq.  The parties were given full opportunity to examine and cross-examine
witnesses, introduce evidence, and make argument.  Both parties filed post-
hearing briefs; which have been considered by the Board.

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                                 JURISDICTION

     MSEA is the bargaining agent within the meaning of 26 M.R.S.A. Section
979-H(2) for the Professional and Technical Services and the Supervisory
Services bargaining units.  The State of Maine is the public employer defined
in 26 M.R.S.A. Section 979-A(5).  The jurisdiction of the Maine Labor Rela-
tions Board to hear this case and render a decision and order lies in 26
M.R.S.A. Section 979-H.

                                FINDINGS OF FACT

     Upon review of the entire record, the Maine Labor Relations Board
("Board") finds:

     1.  The Complainant Maine State Employees Association, having offices and
a place of business at 65 State Street, Augusta, Maine, is the certified bar-
gaining agent of the State employee Professional and Technical Services and
Supervisory Services bargaining units, as well as for three other State
employee bargaining units.

     2.  The Respondent, State of Maine, is the public employer as defined in
26 M.R.S.A. Section 979-A(5).

     3.  On June 28, 1980, MSEA and the State entered into collective bargain-
ing agreements for the Professional and Technical Services and Supervisory
Services bargaining units, said agreements expiring on June 30, 1981.

     4.  The employees of the Maine Department of Environmental Protection
classified as Environmental Services Specialist I, Environmental Services
Specialist II, and Environmental Services Specialist III are included in the
Professional and Technical Services bargaining unit referred to in paragraphs
1 and 3 hereof.

     5.  The employees of the Maine Department of Environmental Protection
classified as Environmental Services Specialist IV are included in the Super-
visory Services bargaining unit mentioned in paragraphs I and 3 hereof.

     6.  Through its member employees, the MSEA became aware that the State
proposed to change the working conditions of employees of the Department of
Environmental Protection, including employees classified as Environmental
Services Specialists II, III, and IV, pursuant to a reorganization of the
Bureau of Oil to the Bureau of Oil and Hazardous Materials.

                                     -2-
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     7.  By letter dated December 24, 1980, MSEA demanded that the State nego-
tiate over the impact on the wages, hours, and working conditions of the
employees mentioned in paragraph 6 hereof resulting from the reorganization
noted therein.

     8.  As a result of the demand, noted in paragraph 7 hereof, MSEA and the
State met on January 23, 1981 and April 17, 1981.  At each of these meetings
and at all times subsequent to the first meeting, the State has refused to
bargain over the impact of the reorganization on wages, hours, and working
conditions and the State has made, ratified, or refused to prevent unilateral
changes with respect to working conditions of the employees mentioned in
paragraph 6 hereof.

     9.  The changes, mentioned in paragraph 8 hereof, include assignment of
the aforementioned employees to hazardous duties and increase in hours of work
on a voluntary basis.  The employees are encouraged to voluntarily respond to
hazardous materials calls and those employees who do so volunteer are given
preference for hazardous materials handling training.

    10.  The employees of the Department of Human Services who are classified
as Human Services Workers I, II and III are included in the Professional and
Technical Services bargaining unit, mentioned in paragraphs I and 3 hereof.

    11.  The employees of the Department of Human Services who are classified
as Human Services Managers I, II, III, and IV, are included in the Supervisory
Services bargaining unit noted in paragraphs 1 and 3 hereof.

    12.  Through its member employees, MSEA became aware that the State
intended to change the wages and working conditions of employees of the
Department of Human Services, particularly those employees classified as Human
Services Workers I, II, and III and Human Services Managers I, II, III, and
IV, pursuant to a reorganization of the bureau of Social and Rehabilitation
Services.

    13.  By letter dated December 24, 1980, MSEA demanded that the State nego-
tiate over the impact of the reorganization, mentioned in paragraph 12 hereof,
on the wages, hours, and working conditions of those employees noted in said
paragraph.

    14.  As a result of the demand, referred to in paragraph 13 hereof, MSEA
and the State met on January 23, 1981 and March 30, 1981.  At each of these
meetings and at all times subsequent to the first meeting, the State has
refused to bargain over the impact of the reorganization in the Bureau of
Social and Rehabilitation Services on

                                     -3-
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wages, hours, and working conditions and the State has made, ratified, or
refused to prevent unilateral changes with respect to wages and working
conditions of the employees mentioned in paragraph 12 hereof.

    15.  The changes, mentioned in paragraph 14 hereof, include reclassifica-
tion and reallocation of positions and changes in minimum job qualifications.
All but one of these reclassifications and reallocations resulted in no salary
reduction for the affected employees and the one employee, whose salary was
reduced, was later reclassified and given full back pay to make her whole and,
therefore, resulted in no salary reduction for any of the affected employees.

    16.  The employees of the Maine Board of Cosmetology, of the Department of
Business Regulation, who are classified as Sanitarian I and II are included in
the Professional and Technical Services bargaining unit, mentioned in para-
graphs 1 and 3 hereof.

    17.  Through its member employees, MSEA became aware that the State pro-
posed to change the wages, hours, and working conditions of the sanitarians,
noted in paragraph 16, hereof, pursuant to a reorganization of the Maine Board
of Cosmetology.

    18.  By letter dated July 9, 1981, MSEA demanded that the State negotiate
over the impact of said reorganization on the wages, hours, and working con-
ditions of the sanitarian employees of the Maine Board of Cosmetology.

    19.  As a result of the demand, referred to in paragraph 18 hereof, MSEA
and the State met on July 17, 1981.  At this meeting and at all times subse-
quent thereto, the State has refused to bargain over the impact of the
reorganization in the Maine Board of Cosmetology on the wages, hours, and
working conditions and the State has made, ratified, or refused to prevent
unilateral changes with respect to wages, hours, and working conditions of
the employees mentioned in paragraph 16 hereof.

    20.  The changes, mentioned in paragraph 19 hereof, include a reduction in
force, from three to two sanitarians through attrition, increasing the work-
load and relocating the official headquarters and bases for expense reimburse-
ment for the two remaining sanitarians.

    21.  The Board, pursuant to the authority of Title 5 M.R.S.A. Section 9058
and having complied with the procedure mandated therein, takes official notice
of the following information, contained in the Board's non-confidential files:
prior to reaching agreement on the 1980-1981 collective bargaining agreements
between

                                     -4-
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the parties, the MSEA proposed, at the bargaining table, to bargain over the
reclassification and/or reallocation of several individual positions.

    22.  The Board, pursuant to the authority of Title 5 M.R.S.A. Section 9058
and having complied with the procedure mandated therein, takes official notice
of the following information, contained in the Board's non-confidential files:
the State rejected the demands, mentioned in paragraph 21 hereof, and no
individual reclassifications and/or reallocations were negotiated prior to
reaching agreement on the aforementioned collective bargaining contracts.


                                   DECISION

     The State of Maine has admitted to having made the unilateral changes, as
alleged by the Complainant Maine State Employees Association, and has further
conceded that said changes have had an effect on the working conditions of
some of the employees of the Department of Environmental Protection, the
Department of Human Services, and the Board of Cosmetology.  The State has
summarized its position as follows:

          "The State does not dispute that there has been change in
     working conditions in each of the three counts.  In the absence
     of a governing agreement, we concede that there would be a statu-
     tory duty to negotiate the changes in working conditions that have
     taken place."

Brief on behalf of the State, at page 2.  The issues, upon which our decision
will turn, are, therefore, the following:  (1) do the applicable collective
bargaining agreements between the parties control the areas at issue, which
were unilaterally changed, and permit the State to make said changes, (2) did
the MSEA waive its right to bargain over said changes, and (3) must the State
bargain over the effects of said changes, upon the affected employees, prior
to implementing the changes in question.

     Where subjects are specifically addressed, in the provisions of an
applicable collective bargaining agreement, no "mid-term" duty to bargain
over said subjects exists, under parallel sections of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq.  Cape Eliza-
beth Teachers Ass'n. v. Cape Elizabeth School Board, MLRB No. 75-24, at p.4
(10/16/75).  In resolving the first issue enumerated above, we will examine
the applicable collective bargaining agreements

                                     -5-
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between the parties.  Our review of the agreements will not be to determine
whether the State complied therewith but rather to determine whether or not
the parties' agreements control the changes which have been implemented.  Our
analysis of the collective bargaining agreements will be within the parameters
outlined by the United States Supreme Court in N.L.R.B. v. C & C Plywood
Corp., 385 U.S. 421, 87 S. Ct. 559, 17 L.Ed.2d 486 (1967).  Approving the
National Labor Relations Board's examination of a collective bargaining
agreement in a mid-term bargaining case, where the employer alleged that a
unilateral change was permitted by the agreement and, therefore, no duty to
bargain existed, the Court stated:

     "[The N.L.R.B.] has not imposed itg own view of what the terms and con-
      ditions of the labor agreement should be.  It has done no more than
      merely enforce a statutory right which Congress considered necessary to
      allow labor and management to get on with the process of reaching fair
      terms and conditions of employment - 'to provide a means by which
      agreement may be reached.'  The Board's interpretation went only so far
      as was necessary to determine that the union did not agree to give up
      these statutory safeguards.  Thus, the Board, in necessarily construing
      a labor agreement to decide this unfair labor practice case, has not
      exceeded the jurisdiction laid out for it by Congress."

385 U.S., at 428, 87 S.Ct., at 564.  Like the N.L.R.B., our Board does not
have the statutory jurisdiction to hear and decide contract grievance cases.
We will, therefore, limit our inquiry, as did the N.L.R.B. above, to an
examination as to whether the labor agreement's language covers the areas in
dispute, in resolving whether the State's unilateral changes were made in
violation of Section 979-C(1)(E) of the Act.

     The second major issue in this case is whether, by agreeing to Conclusion
of Negotiations Articles ("zipper clauses"), in the applicable collective
bargaining agreements between the parties, the MSEA has waived its right to
bargain over the unilateral changes which have been implemented.  A party may
waive its right to demand mid-term negotiations, over unilateral changes which
affect the mandatory subjects of bargaining, through assent to a "zipper
clause" which covers said unilateral changes, Sanford Teachers Ass'n. v.
Sanford School Committee, MLRB No. 76-16, at p.3 (10/26/76), aff'd, Ken.
Super. Ct., Docket No. CA-76-600 (11/9/78), vacated on other grounds, Me.,
409 A.2d 244 (1979).  For such a waiver to be effective as a bar to negotia-
tions, the evidence of waiver must be clear and unmistakable.  Council No. 74,
AFSCME v. City of Bangor, MLRB No. 80-41, at pp. 9-10 (9/24/80), aff'd.
City of Bangor v. AFSCME, Council 74 and MLRB, Me., 449 A.2d 1129 (1982),
Fox Island Teachers Ass'n. v. M.S.A.D. No. 8 Board of Directors, MLRB No.
81-28, at pp. 7-8 (4/22/81).

                                     -6-
______________________________________________________________________________


     The critical language of the applicable collective bargaining agreements,
upon which resolution of the "zipper clause" waiver issue turns, is identical
in the two relevant collective bargaining agreements.  The Conclusion of Nego-
tiations Articles read as follows:

          "A.  The State and MSEA agree that this Agreement is the entire
     Agreement, terminates all prior Agreements or understandings and con-
     cludes all collective negotiations during its term.  Neither party will
     during the term of this Agreement seek to unilaterally modify its terms
     through legislation or other means which may be available to them.

           B.  Each party agrees that it shall not attempt to compel negotia-
     tions during the term of this Agreement on matters that could have
     been raised during the negotiations that preceded this Agreement, matters
     that were raised during the negotiations that preceded this Agreement or
     matters that are specifically addressed in this Agreement."

Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree-
ment, Article LVIII; Professional and Technical Services Bargaining Unit,
1980-1981 Collective Bargaining Agreement, Article LVII.

     The State's initial contention is that the "broad statement" in the
"zipper clause" forecloses all of the negotiations demanded by the MSEA in
this case.  The following language was deemed critical by the State:

          "A. The State and MSEA agree that this Agreement . . .
     concludes all collective negotiations during its term." [Deletions
     and emphasis made by the State].

Brief for the State, at p. 11.  Contrary to the assertion of the State, we
hold that the cited language does not preclude all negotiations between the
parties during the terms of the collective bargaining agreements.  Read within
the context of its entire sentence and of the Article as a whole, the quoted
verbiage is clearly meant to be an integration clause.  Corbin on Contracts
(One Volume Edition), Section 538 (West Publishing Co. 1952).  The purpose of
said clause is to limit the agreement between the parties to that which is
within the four corners of the writing and to exclude parol evidence which
could contradict or amend the written agreement.  The State's interpretation
of the cited language would nullify and render meaningless all of the language
contained in paragraph B of the same Article.  Such an interpretation could,
therefore, not have been the intent of the parties, when the agreement was
executed.

     The State cites our decision in Sanford Teachers' Ass'n. v. Sanford
School Committee, supra, as standing for the proposition that a broad "zipper
clause"

                                     -7-
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will present an effective bar to the sort of mid-term negotiations at issue
herein.  The "zipper clause," which was held to bar bargaining in Sanford,
was much broader in scope than the language relied upon by the State in this
case.  The former clause stated:

     "All matters not dealt with herein shall be treated as having been
      brought up and disposed of and the Committee shall be under no
      obligation to discuss with the Association any modifications or
      additions to this agreement which are to be effective during the
      term thereof."

Sanford, supra, at p. 3.  To the extent that anything stated herein is incon-
sistent therewith, the Sanford decision is hereby overruled.  The deeming of
all matters, which were not specifically discussed in the agreement, as having
been raised and discarded during the collective negotiations which preceded
the agreement, goes far beyond the language of the agreements in this case.
Paragraph 8 of the Conclusion of Negotiations Articles, cited in full above,
sets forth three categories of issues over which mid-term bargaining has been
waived by the parties herein.  These three classes of issues are:  (1) matters
which could have been raised during the pre-agreement negotiations,
(2) matters discussed at the bargaining table and rejected, and (3) matters
covered in the agreement.

     In assessing the affirmative defense of waiver, we will  consider the
appropriate burden of proof associated with said defense. It has long been
settled law in this State that a party who raises an affirmative defense in a
civil action bears the burden of producing evidence sufficient to establish
the validity of said defense.  Windle v. Jordan, 75 Me. 149, 153 (1883).  The
State has admitted that, but for the existence of waiver on the part of the
MSEA thereon, the unilateral changes effected by the State herein would have
to be bargained with the MSEA, prior to said changes being implemented.  To
prevail in its affirmative defense, the State will have to substantiate,
through relevant evidence presented to the Board, that each issue raised by
the MSEA's bargaining demands was:  (1) a matter which could have been raised
during the pre-agreement negotiations, or (2) a matter which was discussed at
the bargaining table and was rejected, or (3) a matter covered in the agree-
ment.  We will analyze each of the unilateral changes, in subsequent sections
of this decision, in light of these considerations.

     The final issue presented by this case is whether the State must bargain
the impact or effect of the unilateral changes, upon mandatory subjects of
bargaining for the employees affected, prior to the implementation of said
changes.  In a

                                     -8-
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recent case, the Supreme Judicial Court has outlined the nature of "impact
bargaining," distinguished said bargaining from negotiations over change which
resulted in the impact being realized, and discussed the relationship between
"impact bargaining" and a "zipper clause."  Mr. Justice Violette, writing for
a unanimous Court, stated:

          "The Superior Court determined that the Board's finding of a
     violation of the duty to notify and bargain with the union was not
     clearly erroneous.  We agree with the Superior Court that the Board
     did not err in concluding that the city had violated section 964(1)
     (E) and adopt its accurate analysis of this issue:

          'The Board found that the City committed a distinct violation of
     the Public Employees Act when it failed to notify the Union of and
     bargain with it over the effect of the discharges of Prescott, Strout
     and Bragg.  At issue is section 964(1)(E) which prohibits an employer
     from refusing to bargain collectively pursuant to Section 965, which,
     in turn, creates an obligation to "confer and negotiate in good faith
     with respect to wages, hours, (and] working conditions . . ."  The
     effects of a discharge have been held to be a subject of mandatory
     bargaining.  N.L.R.B. v. Allis Chalmers Corp., 601 F.2d 870, 875 (5th
     Cir. 1979); N.L.R.B. v. W. R. Grace & Co., Construction Products Div.,
     571 F.2d 279, 283 (5th Cir. 1978); N.L.R.B. v. Transmarine Navigation
     Corp., 380 F.2d 933 (9th Cir. 1967).  Concomitant with the characteri-
     zation of a subject as within the duty to negotiate is a duty of the
     employer to notify the union to provide it with an opportunity to
     bargain over it.  Id.  The failure to do so violates Section 964(1)(E).
     In the case of a discharged employee, the subjects of bargaining may
     include severance pay, vacation pay, seniority, and pensions.  Trans-
     marine, supra.  Here, the City provided no notice to the Union of its
     decision to discharge the four employees covered by the guarantees of
     the Public Employees Act.  Its unilateral action taken before the Union
     had an opportunity to negotiate these subjects thus constituted a
     breach of the Act's provisions.

          'Article 33(2) of the collective bargaining agreement provides
     that the City and the Union each "voluntarily and unqualifiedly waives
     the right, and each agrees that the other shall not be obligated to
     negotiate with respect to any subject or matter referred to or covered
     in this agreement . . ."  The contract in article 26(1) also provides
     that "the City shall have the exclusive right to . . . discharge or sus-
     pend for just cause . . . [and] to reduce or expand the working forces
     . . ."  Thus, while article 33(2) effects a waiver by the Union of its
     right to negotiate over a discharge for just cause itself and over
     changes in the size of the group of employees, it does not waive its
     right to negotiate over the effects of that discharge.  The issues of
     discharge and its effects are distinct, and the waiver of one is not
     equivalent to the waiver of the other.  The distinctiveness of these
     two issues is made clear in Transmarine, supra, which held that although
     the managerial decision to terminate its business and reinvest its
     capital elsewhere is not a subject of collective bargaining, the effects
     of the decision is mandatory to the extent that it implicates wages,
     hours, and other conditions of employment.  Because the decision to
     displace employees

                                     -9-
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     and the effects of their displacement are separate and independent
     issues, and further because waiver clauses in collective bargaining
     agreements are read constrictively, N.L.R.B. v. Auto Crane Co., 536 F.2d
     310, 312 (10th Cir. 1976), see, e.g., State v. Maine Labor Relations
     Board, supra, 413 A.2d at 515, the Board did not err in concluding that
     the waiver provision in article 33(2) of the collective bargaining
     agreement did not encompass the effects of discharge.  As the effects of
     a discharge is a subject of mandatory bargaining and because it was not
     waived here, the City violated Section 964(1)(E) by discharging the four
     employees without first notifying the Union to provide it with an
     opportunity to request negotiations over its effects.'"

[Emphasis and deletions by the Court].  City of Bangor v. A.F.S.C.M.E.,
Council 74, Me., 449 A.2d 1129, 1134-1135 (1982).

     Unlike the case considered by the Law Court in State of Maine v. M.S.E.A.
and M.L.R.B., Me., 443 A.2d 948 (1982), this case does not involve the unique
language of 26 M.R.S.A. Section 979-D(1)(E)(1), which distinguishes that sec-
tion from the parallel section of the Municipal Public Employees Labor Rela-
tions Act, 26 M.R.S.A. Section 965(1)(C).  Since neither party has alleged
that the unique language of the Act will control the outcome of this case and
since said language will not, in our view, affect the resolution of the issues
herein; we hold that the Supreme Judicial Court's view of effect or impact
bargaining, under the analogous provision of the Municipal Act, applied
equally to cases, such as this one, arising under the State Act.

     In the case before us, the State has conceded that its unilateral changes
did relate to and did change the working conditions, a mandatory subject of
bargaining, of the employees affected by said changes.  Should we find that
the MSEA has waived its right to bargain over the changes themselves, in our
detailed analysis of the changes, the MSEA may still have the right to demand
bargaining over the effects resulting from said changes.

     The State, at pages 12 through 15 of its brief, makes two averments in
connection with impact bargaining.  Those contentions are:  (1) because the
parties agreed to bargain over impact in three specific Articles of the rele-
vant collective bargaining agreements, the MSEA could have raised the question
of impact bargaining over the changes at issue herein, during the negotiations
which preceded said agreements, and (2) because the changes involved in this
case are "specifically addressed" in the collective bargaining agreements, the
State need not bargain over the impact of said changes.

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     The State's first contention is that, since the parties agreed to bargain
over impact in three Articles of the collective bargaining agreements, the im-
pact bargaining demanded by the MSEA herein could have been raised during the
negotiations which preceded said agreements.  The Conclusion of Negotiations
Articles, cited above, provide that a matter which could have been raised
during the pre-agreement negotiations cannot be raised for bargaining during
the term of the agreements.  The State would, therefore, have us conclude
that, since three specific Articles of the agreements explicitly provide a
duty to bargain over the impact of decisions made pursuant to said provisions,
all other impact bargaining is waived under the Conclusion of Negotiation
Articles.

     We have often stated that "zipper clauses" are to be strictly construed,
Lewiston Teachers Association v. Lewiston School Committee, MLRB No. 80-45,
p. 6 (8/11/80).  The Supreme Judicial Court has approved our "constrictive"
reading of such clauses.  City of Bangor v. A.F.S.C.M.E., Council 74, supra,
at 1135.  The relevant Conclusion of Negotiations Articles are silent on the
question of impact bargaining, therefore, those clauses do not explicitly
foreclose such bargaining.  The National Labor Relations Board recently
stated:

          "A waiver of statutory rights may not be found . . . unless
     the waiver is 'clear and unmistakable' and there also be 'a
     conscious relinquishment by the Union, clearly intended and
     expressed to give up the right."  [Deletion by the M.L.R.B.].

American Telephone and Telegraph Co., 250 N.L.R.B. 47, 55 (1970).  The United
States Court of Appeals for the First Circuit affirmed the N.L.R.B. and
stated:

     "Where a statutory right is involved, the law of this circuit is
      that la waiver should be express, and that a mere inference, no
      matter how strong, should be insufficient.'"  [Citation omitted]

Communications Workers of America v. N.L.R.B., 644 F.2d 923, 928 (1st Cir.
1981).  The State's averment, that inclusion of impact bargaining in three
sections of the relevant agreements demonstrates that the general subject of
impact bargaining could have been raised during the pre-agreement negotiations
and, therefore, the impact bargaining demanded herein was waived, rests on an
inference.  The inference is that failure to mention impact bargaining in the
contract sections authorizing the changes herein is equivalent to a waiver of
bargaining over the effect of those changes.  The State's argument neither
demonstrates a clear and conscious relinquishment of the impact bargaining
demanded herein nor does it rise beyond the

                                    -11-
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level of being a mere inference of waiver.  The State's first argument must,
therefore, be rejected.

     The State's second argument is that because the unilateral changes at
issue herein are "specifically addressed" in the collective bargaining agree-
ments, the State has no duty to bargain over the effects resulting from those
changes upon mandatory subjects of bargaining.  This argument is identical to
that which was raised, by the City of Bangor, and rejected by the Law Court in
City of Bangor v. A.F.S.C.M.E., Council 74, supra, at 1135.  A union's waiver
of negotiations over a public employer's power to make unilateral changes in
mandatory subjects of bargaining is not tantamount to waiver of the right to
bargain over the effects resulting from said changes.  The two are separate
and distinct issues.  An effective waiver of the right to impact bargaining
must be a clear and conscious relinquishment of that statutory right.
Following the Supreme Judicial Court's rationale, we must reject the State's
argument that it need not bargain over the impact of the unilateral changes
involved herein because such changes are "specifically addressed" in the
collective bargaining agreements.

     Having considered and rejected the arguments offered by the State, in
connection with the issue of impact bargaining, we must hold that the MSEA has
not waived the right to bargain over the impact or effect, upon mandatory
subjects of bargaining, resulting from the unilateral changes made by the
State which are the subject of this case.

     Our holding is further supported by an analysis of the nature and proper
use of "zipper clauses."  The General Counsel of the National Labor Relations
Board has outlined the legal basis and rationale for "zipper clauses," as well
as the proper function of such sections, in a reported Advice Memorandum.
The Memorandum stated:

     "In Jacobs Mfg. Co., (94 N.L.R.B. 1213, enf. 196 F.2d 680 (2nd Cir.
      1952)], the Board suggested that parties to a contract could preclude
      later negotiations over subjects not contained in the contract by in-
      cluding a zipper clause in the contract.  Although the language of the
      zipper clause in the instant case does not comport in every respect
      with the language of the clause suggested by the Board in Jacobs, it is
      clear that the Board merely gave an example of a zipper clause and that
      it did not insist that all zipper clauses have identical or even
      similar language.  The important point in this case is that the Employer
      and the MLUA [Major Leagues Umpires Association] expressed, in some
      manner, their understanding that all 8(d) subjects of bargaining would
      be considered to have been discussed.

     "The above conclusion that MLUA could not force bargaining over the 21
      subjects during the term of its current collective bargaining agreement

                                    -12-
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      furthers the basic federal labor policy of promoting industrial
      peace as well as contract stability.  If a contrary conclusion
      were reached, the result could be chaos.  There are innumerable
      8(d) subjects over which either party could constantly be request-
      ing bargaining.  Thus, it is possible that the parties' contract
      could always be in a state of flux.  Moreover, it may be lawful
      for a union to strike in support of its demands regarding an 8(d)
      subject not contained in the agreement.  Therefore, when the par-
      ties have shown, through the use of a zipper clause or by other
      means, a desire for stability in their relations for the duration
      of the collective bargaining agreement, such intent should be given
      effect, so that neither party may seek to bargain over new subjects
      during the term of the agreement.

     "Although the Board has held that a zipper clause will not necessar-
      ily preclude a finding of a Section 8(a)(5) violation when an employer
      unilaterally changes a term and condition of employment which is not
      contained in the current contract, such cases were deemed to be in-
      apposite to the circumstances herein.  There is a clear distinction
      between a situation where a party to a contract wishes to preserve
      the status quo and one where a party wishes to change it.  In those
      cases involving a unilateral change, the employer relies on the exist-
      ence of a zipper clause in the collective bargaining agreement not
      simply to establish that the contract precludes bargaining over new
      subjects during the term of the contract, but also, and more impor-
      tantly, to establish that the contract gives the employer unfettered
      power to change any term or condition not contained in the contract.
      The Board has clearly stated that a zipper clause will not ordinarily
      be construed to grant the employer such unfettered power.  However, in
      the instant case, no claim is being made by the Employer that the
      zipper clause gives it the absolute power to change terms and condi-
      tions of employment not contained in the contract.  Rather, it is
      relying on the zipper clause simply to avoid being forced to bargain
      over new subjects.  Therefore, MLUA's reliance on those zipper clause
      cases involving a unilateral change is misplaced.  Similarly, the MLUA
      cannot rely upon Section 8(d) for its contention that the Employer must
      bargain concerning the 21 subjects since Section 8(d) was designed to
      protect the party to a contract who wishes to preserve the status quo.
      Thus, where as here, the Employer is using the contract and 8(d) as a
      shield to protect against a bargaining demand and not as a sword to
      justify a change, the employer's conduct was considered privileged."

American League of Professional Baseball Clubs and National League of Profes-
sional Baseball Clubs, N.L.R.B. General Counsel Memorandum, text reprinted in
full at 99 LRRM 1724, 1725-1726 (1978).  We do not cite the above memorandum
as persuasive authority; however, we believe that it accurately reflects the
present state of federal labor relations law in connection with the status and
use of "zipper clauses."  Properly invoked, the Conclusion of Negotiation
Articles would preclude negotiations over matters which had either been
settled in the collective bargaining process or which could have been raised
thereat.  Said Articles cannot be used to bar negotiations over the effects,
upon mandatory subjects of bargaining, resulting from the

                                    -13-
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State's unilateral changes.

     Applying the above impact bargaining discussion to the facts before us,
we conclude that the Conclusion of Negotiation Articles do not preclude the
MSEA from demanding negotiations over the effects of the State's unilateral
changes upon mandatory subjects of bargaining.  The State's duty to bargain,
as mandated by Section 979-C(1)(E) of the Act, included the obligation to
notify the MSEA of the proposed changes and, if the MSEA demanded negotiations
over the effects of said changes upon mandatory subjects of bargaining, to
bargain over said effects prior to implementing the changes.  City of Bangor
v. A.F.S.C.M.E., Council 74, supra.  We hold that the State violated 26
M.R.S.A. Section 979-C(1)(E) by failing to notify the MSEA of the impending
changes in order to give the union the opportunity to demand bargaining over
the effects thereof upon mandatory subjects of bargaining, prior to the
implementation of the changes.  As soon as the MSEA learned of the changes,
from the affected bargaining unit employees and shortly after the changes
were unilaterally implemented, the bargaining agent demanded negotiations over
the impact resulting from the changes.  This prompt demand for bargaining by
the MSEA further serves to refute any inference that the union might have
waived its right to impact bargaining.  The State further violated Section
979-C(1)(E) of the Act when it refused to bargain over the changes' impact
upon mandatory subjects of bargaining and we so hold.

     The State's duty to bargain, over the impact of the unilateral changes
upon mandatory subjects of bargaining, does not, however, mean that the State
will have to wait, until disputes between the parties are resolved by an arbi-
trator, prior to implementing the changes.  In the event that the parties fail
to reach a negotiated settlement on the impact questions, impasse will be
reached.  When a bona fide impasse has been reached between the negotiating
parties, the public employer may implement unilateral changes, so long as said
changes are consistent with the last best offer made to the bargaining agent
during negotiations.  M.S.E.A. v. State of Maine, MLRB No. 78-23, p. 4
(7/15/78), aff'd sub nom, State of Maine v. M.L.R.B., Me., 413 A.2d 510
(1980).

     Having determined that the State must negotiate over the effects, result-
ing from the unilateral changes which it has implemented upon mandatory sub-
jects of bargaining, we will, in the following three sections of this
decision, examine whether the State must bargain over the reorganizational
changes themselves, pursuant to Section 979-D of the Act.

                                    -14-
______________________________________________________________________________


                    DEPARTMENT OF ENVIRONMENTAL PROTECTION

     The MSEA has made thirteen specific negotiation demands in connection
with the State's unilateral reorganization of the Department of Environmental
Protection's Bureau of Oil into the Bureau of Oil and Hazardous Materials
(Joint Exhibit 8).  At the outset, we note that the Management Rights Articles
of the relevant collective bargaining agreements provide as follows:

          "The MSEA agrees that the State has and will continue to retain
     the role and exclusive right to manage its operations and retains all
     management rights, whether exercised or not, unless specifically
     abridged, modified or delegated by the provisions of this Agreement.
     Such rights include but are not limited to:  the right to determine the
     mission, location and size of all agencies and facilities; the right to
     direct its work force; to administer the merit system; to establish
     specifications for each class of positions and to classify or reclassify
     and to allocate or reallocate new or existing positions in accordance
     with the law; to discipline and discharge employees; to determine the
     size and composition of the work force; to eliminate positions; to make
     temporary layoffs at its discretion; to contract out for goods and ser-
     vices; to determine the operating budget of the agency; to install new,
     changed or improved methods of operations; to relieve employees because
     of lack of work or for other legitimate reasons; to maintain the
     efficiency of the government operations entrusted to them; and to take
     whatever actions may be necessary to carry out the mission of the agency
     in situations of emergency."

Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree-
ment, Article LVI; Professional and Technical Services Bargaining Unit, 1980-
1981 Collective Bargaining Agreement, Article LV.  Our reading of the above
Articles leads us to the conclusion that the State was authorized, thereby,
to make the reorganization decision itself without having to bargain with the
MSEA over the decision itself.

     We will now examine the specific MSEA bargaining proposals.  The bargain-
ing agent's first proposal deals with the reclassification and the realloca-
tion of the affected employees.  This proposal is clearly covered by the
Reclassification Articles of the collective bargaining agreements.  The MSEA
has, therefore, under the terms of the applicable "zipper clause," waived
bargaining over this proposal by its agreement to a provision in the
collective bargaining agreements which sets forth a procedure for resolving
this issue.

     The MSEA's second bargaining proposal, like the first, concerns reclassi-
fications.  The negotiation demand is likewise barred by the union's
acceptance of

                                    -15-
______________________________________________________________________________


a controlling provision in the collective bargaining agreements.  Furthermore,
bargaining over reclassifications and/or reallocations was specifically fore-
closed by the Supreme Judicial Court's decision in State of Maine v. M.S.E.A.
and M.L.R.B., supra, at 952-953.  The Law Court held that reclassification
and/or reallocation decisions were "prescribed and controlled" by sections of
public law (5 M.R.S.A. Section 593) and, therefore, the same are expressly
excluded from the ambit of collective bargaining by the terms of Section
979-D(l)(E)(1) of the Act.

     The MSEA's third bargaining proposal reads as follows:

          "No employee to be laid off or involuntarily transferred as a
           result of ineligibility for or refusal to assume duties per-
           taining to toxic or hazardous materials other than oil and other
           petroleum products.  Such employees to remain Environmental Serv-
           ices Specialists.  Employees assuming the new duties and later
           washing out to be reassigned to other duties at a comparable
           level."

The first sentence of this negotiation demand is covered by the Management
Rights Articles of the relevant collective bargaining agreements.  The State
has retained the power "to determine the mission," "to direct its work force,"
and to "relieve employees because of lack of work or for other legitimate
reasons."  The second sentence is barred by the Reclassifications Articles
which permit the State, through adherence to an established contractual
procedure, to reclassify its employees.  The last sentence concerns the fate
of employees who attempt and are unsuccessful in performing the new duties.
The State, at page 17 of its brief, suggests that this portion of the proposal
is controlled by the Seniority and Permanent Status Articles of the relevant
collective agreements.  The portions of the Seniority Article cited deal only
with situations where "an appointing authority determines that a reduction in
force is necessary."  The Permanent Status Articles only discuss probationary
periods and the extension thereof.  Neither provision controls the proposal
made by the bargaining agent.  The third sentence of the bargaining proposal
clearly concerns working conditions and is, therefore, a mandatory subject of
bargaining.  The State, who had the burden of proof thereon, failed to
establish that said proposal could have been raised during the pre-agreement
negotiations or that it was raised and disposed of at that time.  We, there-
fore, hold that there was no waiver, as to this sentence of the proposal, and
that the State must bargain over it with the MSEA, as an impact of the
reorganization decision.

                                    -16-
______________________________________________________________________________


     The MSEA's seventh proposal concerns the effective date of the employers'
reclassifications.  Said proposal is specifically covered in the contracts'
Reclassification Articles.  The Articles state, in section 4 thereof:

          "Any reclassification or reallocation decision of the Personnel
     Commissioner or the Arbitrator or Alternate shall be effective as
     of the date of the written initiation of the reclassification or
     reallocation request by the employee, MSEA or State and shall be im-
     plemented retroactively when the funds are provided pursuant to bud-
     getary procedures."

Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree-
ment Article XXIX; Professional and Technical Services Bargaining Unit, 1980-
1981 Collective Bargaining Unit, Article XXIX.  Since said proposal is covered
by the collective bargaining agreement, the State has no duty to bargain
thereon.

     The MSEA's eighth and ninth proposals deal with overtime compensation and
standby pay.  The overtime demand is controlled by paragraph E of the collec-
tive bargaining agreements' Compensation Articles and the standby proposal is
governed by paragraph H of said Articles.  No duty to bargain, therefore,
exists on these proposals during the term of the collective bargaining agree-
ments.

     The bargaining agent's eleventh and twelfth negotiation demands concern
paid-up life insurance and a 20 year, no age retirement plan with a 7.5% em-
ployee contribution respectively.  Group life insurance for state employees is
established and governed by the provisions of Title 5 M.R.S.A. Section 1151.
The state retirement plan is controlled by Title 5 M.R.S.A. Section 1001, et
seq.  The 20 year, no age, retirement plan proposal is precluded by the
provisions of 5 M.R.S.A. Section 1121(1) and the 7.5% employee contribution
is contrary to Section 1095(1) of Title 5 M.R.S.A.  Title 26 M.R.S.A. Section
979-D(1)(E)(1) provides, in relevant part, as follows:

          "All matters relating to the relationship between the employer
           and employees shall be the subject of collective bargaining,
           except those matters which are prescribed or controlled by
           law.  "

Our reading of the MSEA's eleventh and twelfth proposals, together with the
sections of Title 5 M.R.S.A. cited above, leads us to conclude that the
proposals are "prescribed or controlled" by public law and, therefore, no duty
to bargain exists thereto.

                                    -17-
______________________________________________________________________________


     The MSEA's fourth bargaining demand concerns training for the affected
employees' new duties, resulting from the implementation of the unilateral
change by the State.  The proposal demands bargaining over initial and on-
going training, training opportunities for all affected employees, and State
payment of tuition costs, travel expenses, and all other costs for said
training.  The State has averred, at page 17 of its Brief, that the subject
matter of said proposal is covered by the Employment Development and Training
Articles of the Collective Bargaining Agreements.  The contract provisions at
issue state:

          "1.  The State agrees to provide advice and counselling to
      employees with respect to career advancement opportunities and
      agency developments which have an impact on their careers.

           2.  Regular review of its job-related and career development
      and training programs will be made by the State in order to pro-
      vide suitable programs for employees covered by this Agreement.
      When undertaking any such review, the State shall notify employees
      of such review and take into account suggestions and proposals made
      by employees.

           3.  Employees shall be given a reasonable notice of applicable
      development and training programs available.  Such notice shall in-
      clude an explanation of the procedure for applying for the program.
      An appointing authority shall make every effort to permit employees'
      participation in such career development and training programs.  Par-
      ticipation in any training inside or outside of work hours which is
      required by the State as a condition of fulfilling the requirements
      of the employee's job, or any in-service state training which is con-
      ducted or undertaken during normally scheduled work hours will be con-
      sidered as time worked.

           4.  The State shall pay tuition, course-related fees, other
      approved course-related costs and for necessary travel and lodging
      pursuant to established policies and procedures."

Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree-
ment, Article XXXIV; Professional and Technical Services Bargaining Unit,
1980-1981 Collective Bargaining Agreement, Article XXXIV.  Although the cited
Articles appear to address portions of the union's bargaining proposal, such
as State payment of costs related to training programs and the deeming of time
spent in training programs as work time, the Board holds that these Articles
do not preclude the MSEA's demand to bargain over provision of the initial
and on-going training programs, outlined in an Inter-Departmental Memorandum
dated October 30, 1980.  Training programs have been held to be "working
conditions," within the meaning of the Federal Statute which is analogous to
Section 979-D(1)(E)(1)

                                    -18-
______________________________________________________________________________


of the Act, therefore, such training programs are mandatory subjects of bar-
gaining.  Flambeau Plastics Corp. v. N.L.R.B., 401 F.2d 128, 135 (7th Cir.
1968), U.S. cert. denied, 393 U.S. 1019.  The State, by implementing the uni-
lateral change in working conditions, has caused a substantial change in the
employees' job assignments.  The State must bargain over the initial and on-
going training, specifically contained in the union's proposal, as an impact
or effect resulting from the unilateral change.  The State has offered no
evidence indicating that the bargaining agent's request could have been raised
in the pre-agreement negotiations or that it was so raised.  Having failed to
establish that the proposal was controlled by the collective bargaining agree-
ment, could have been raised during the pre-agreement bargaining, or was so
raised, the State's waiver argument, as to the specific proposal to bargain
over initial and on-going train-ing for the affected employees must fail.

     The MSEA's fifth, sixth, and tenth bargaining demands all concern the
health and safety of the affected employees.  The fifth demand is for "all
safety requirements" set forth in three specific safety manuals "be met
continuously."  The sixth proposal demands the provision of specific safety
equipment, for use by the employees in connection with the new duties required
by the unilateral change, and training in the "use and limitations" of said
equipment.  The tenth demand is for a health surveillance program.  The State
has argued, at page 17 of its Brief, that said proposals are covered by the
Health and Safety Articles of the collective bargaining agreements.
Additionally, the State has averred that the training portion of the union's
sixth proposal is covered by the Employee Development and Training Articles
cited above.  The Health and Safety Articles read as follows:

          "The State will take appropriate action to assure compliance
     with all of applicable laws concerning the health and safety of
     employees in its endeavors to provide and maintain safe working
     conditions.  MSEA agrees to support any programs required to meet
     the health and safety needs of employees."

Supervisory Services Bargaining Unit, 1980-1981 Collective Bargaining Agree-
ment, Article XXXV; Professional and Technical Services Bargaining Unit, 1980-
1981 Collective Bargaining Agreement, Article XXXV.  Our reading of the
union's bargaining demands, together with the cited section of the collective
bargaining agreements and the evidence presented at the hearing, leads us to
conclude that said contract Articles do not preclude the impact bargaining
demanded herein.  The State did not introduce any "applicable laws" concerning
the health and safety of

                                    -19-
______________________________________________________________________________


persons dealing with hazardous materials which might control the proposals
presented.  Furthermore, the Employee Development and Training Article might
apply once the equipment mentioned in the sixth proposal is procured; however,
the evidence before us is that only some of said equipment is presently avail-
able to the affected employees.  Health and safety issues have been held to
come within the ambit of "working conditions," within the meaning of the
section of Federal law which is parallel to 26 M.R.S.A. Section 979-D(1)
(E)(1).  N.L.R.B. v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967); United
Steelworkers of America v. Marshall, 647 F.2d 1189 (D.C. Cir. 1980).  As
"working conditions," health and safety issues are mandatory subjects of bar-
gaining.  The State has not established that these proposals were raised in
the pre-agreement negotiations or that they could have been so raised.  We,
therefore, hold that the State must bargain with the MSEA over the union's
fifth, sixth, and tenth bargaining demands concerning the effects of the
State's implementing the unilateral change herein.

     The bargaining agent's thirteenth demand relates to the minimum number of
employees who are to respond to hazardous materials incidents.  The State
argues, at page 17 of its Brief, that this proposal is covered by the Health
and Safety and the Management Rights Articles quoted above.  Initially we note
that the Management Rights Articles do reserve to the State the power to
"determine the size and composition of the work force."  If, however, the
union can argue that the number of employees responding to hazardous materials
incidents is directly related to the health and safety of those employees, the
said number would be a mandatory subject of bargaining, as a health and safety
impact resulting from the unilateral change.[fn]1  The Health and Safety
Articles do not cover the proposal because the State did not introduce any
"applicable laws" which control the subject matter of the demand.  Further-
more, the State introduced no evidence that this proposal could have been
raised during the pre-agreement negotiations or that it had been so raised.
There was no evidence introduced that the unilateral change, which gave rise
to the effects discussed in this section of our decision, was even contem-
plated during the
_______________

1/ The Board is not deciding herein whether minimum employee response to a
   hazardous materials incident is itself a mandatory subject of bargaining.
   The Board is, however, holding that such minimum response must be bargained
   as an effect of impact of the unilateral change implemented by the employer
   upon the health and safety of the employees affected by said change in
   working conditions.  The Board presently has before it cases which raise
   the former issue and that question will be resolved in those cases.

                                    -20-
______________________________________________________________________________


pre-agreement negotiations by either of the parties.  We hold, therefore,
that, if the union can establish that the number of employees responding to
hazardous materials incidents is directly related to the health and safety of
those employees, the State must bargain with the MSEA over this proposal, as
an effect resulting from the unilateral change implemented by the State.

     We have found that a portion of the union's third demand and the MSEA's
fourth, fifth, sixth, tenth, and a portion of the thirteenth demand all
concern the impact of the unilateral change implemented by the State upon
mandatory subjects of bargaining.  We have further concluded that said demands
are not covered by the relevant collective bargaining agreements nor could
said demands have been raised during the pre-agreement negotiations nor were
they so raised.  The MSEA has, therefore, not, under the terms of the
applicable Conclusion of Negotiations Articles, waived its right to demand
impact bargaining over these proposals during the term of the collective
bargaining agreements.  Since said demands concern the impact of the uni-
lateral change upon mandatory subjects of bargaining and absent any waiver
thereon by the MSEA, we hold that by refusing to bargain with the MSEA over
said proposals, the State has violated Section 979-C(1)(E) of the Act.
We will order an appropriate remedy for this violation.


                         DEPARTMENT OF HUMAN SERVICES

     The MSEA has made seven specific bargaining demands in connection with
the State's unilateral change of the educational and/or experience require-
ments for the Human Services Workers and Human Services Managers employed by
the Department of Human Services.  The Management Rights Clauses of the rele-
vant collective bargaining agreements explicitly permit the State to make this
change without having to bargain with the union thereover.  The Management
Rights Articles permit the State to "establish specifications for each class
of positions and to classify or reclassify and to allocate or reallocate new
or existing positions in accordance with the law" and further to "determine
the size and composition of the work force."  A separate question, however,
is whether the State must, prior to implementing said change in working
conditions, notify the MSEA thereof, allow the union to raise questions con-
cerning the impact or effect of the change upon mandatory subjects of bargain-
ing, and to bargain with the MSEA over said impact, prior to implementing the
change.  City of Bangor v. A.F.S.C.M.E., Council 74, supra at 1135.  The
evidence

                                    -21-
______________________________________________________________________________


before us is that the State failed to notify the MSEA of the proposed change
and, therefore, failed to give the union the opportunity to bargain over the
effects of said change upon mandatory subjects of bargaining, prior to imple-
mentation of the change.  Should we find, in the following analysis, that the
MSEA has not waived bargaining over some or all of its proposals, the State's
failure to notify the union, to allow the union to raise demands concerning
the effects of the change upon mandatory subjects of bargaining, and to bar-
gain over the same with the MSEA, prior to implementation thereof, would
constitute a violation of 26 M.R.S.A. Section 979-C(1)(E).

     The MSEA's first bargaining demand concerns the grandfathering of
incumbent employees in the reclassified positions, no applications or
examinations for said positions, no requirement that incumbents meet the new
qualifications, and no change of duties for the employees who met the prior
minimum qualifications.  In our view, the Reclassifications Articles of the
collective bargaining agreements control reclassifications, including those
involved in the Human Services reorganization involved herein.  As was noted
above, reclassification decisions are prescribed or controlled by public law
and are, therefore, not mandatory subjects of bargaining.  State of Maine v.
M.S.E.A. and M.L.R.B., supra.  For both reasons, the MSEA's first bargaining
demand does not give rise to a duty to bargain by the State.

     The MSEA's second proposal deals with reclassifications and allocation of
the classes into specific pay ranges.  The Reclassification Articles of the
applicable collective bargaining agreements cover the subject matter of this
demand.  The union has, therefore, waived its right to bargain over this
subject.

     The bargaining agent's third demand is for overtime to be paid at
straight time rates.  This proposal is covered by paragraph E of the Compen-
sation Articles in the relevant collective bargaining agreements.  The MSEA
has, by agreement to said provision in the agreements, waived the right to
bargain over this demand.

     The union's fourth demand states as follows:

          "Training program to be provided for incumbents wishing to
           complete credits.  Employees to be provided opportunity to
           participate in training program and time so spent to be con-
           sidered hours worked.  State to pay any tuition, travel costs
           and other expenses."

The State avers that the Employee Development Training Articles of the
relevant collective bargaining agreements covers this proposal.  Brief for
State, p. 16.

                                    -22-
______________________________________________________________________________


We agree that said contract provision does cover all but the first sentence of
the Union's demand.  There was evidence before us, however, that at least one
of the affected employees would not be allowed to retain her position because
she fell too far short of the new educational qualification/experience
standards for said position.  The effect of the unilateral change upon that
employee's working conditions, as well as upon those of similarly circum-
stanced employees, is significant.  In cases where the State does not wish to
allow the incumbent employees to complete the new educational/experience
standards, the State must bargain with the MSEA over the effects of the
unilateral changes upon the working conditions of said employees, including
the provision of educational training programs.  The State failed to notify
the MSEA of the proposed change and failed to allow the union the right to
raise impact bargaining issues, prior to the implementation of the unilateral
change.  As soon as the MSEA learned of said change, from affected bargaining
unit employees, it demanded the right to bargain over the impact thereof upon
mandatory subjects of bargaining.  The State has refused to so bargain.  The
State failed to establish that the first sentence of the MSEA's fourth
proposal was raised during pre-agreement negotiations or that it could have
been raised at that time.  Because the union has not waived the right to bar-
gain over said first sentence of its fourth proposal and because said sentence
deals with the impact of the unilateral change upon mandatory subjects of
bargaining, we hold that the State violated Section 979-C(1)(E) of the Act by
failing to notify the MSEA of the change, prior to its implementation and by
failing to bargain with the MSEA over the first sentence of the union's fourth
bargaining demand.  We will order an appropriate remedy for this violation of
the Act.

     The MSEA's fifth bargaining demand concerns the effective date of the
reclassifications at issue.  Paragraph 4 of the Reclassification Articles of
the relevant collective bargaining agreements cover this proposal.  The MSEA
has, by agreement to said Articles, waived its right to bargain over this
demand.

     The bargaining agent's sixth proposal deals with incumbents in the
reclassified positions being available for vacant positions.  Paragraph G of
the Seniority Articles of the relevant agreements cover this proposal and,
therefore, bargaining over it has been waived by the MSEA.

     The MSEA's seventh demand concerns filling all vacancies, prior to imple-
mentation, on the basis of current registers.  Like the sixth proposal, this

                                    -23-
______________________________________________________________________________


demand is covered by paragraph G of the Seniority Articles of the collective
bargaining agreements between the parties.  The seventh demand has, therefore,
been waived by the union.


                             BOARD OF COSMETOLOGY

     The State has, through attrition, reduced the number of Sanitarians in
the Board of Cosmetology from three to two.  As a result of this change the
two remaining Sanitarians have moved their work locations from Augusta to
Portland and from Fort Fairfield to Bangor.  Under the Management Rights
Article of the relevant collective bargaining agreement, the State retains the
power "to determine the mission, location and size of all agencies and facili-
ties."  Said provision clearly authorizes the State to make the unilateral
change involved herein without first having to bargain with the MSEA over the
decision itself.  At issue, however, are the effects of the State's decision
upon the working conditions (mandatory subjects of bargaining) of the affected
employees.  As was noted above, the State has the duty, under Section 979-D(l)
(E)(1) of the Act, to notify the bargaining agent of the impending decision
and, should the union so request, to bargain over the effects of the decision
upon mandatory subjects of bargaining, prior to implementation.  In this case,
as in the cases of the two departments discussed above, the State failed to
notify the MSEA of its plan to implement the change, prior to effectuating the
same.  Once the MSEA learned of the change, after its implementation from an
affected bargaining unit employee, the union demanded bargaining over two
specific proposals.  The union contended that said demands concerned the
effects of the State's unilateral change upon the working conditions of the
affected employees.  The State refused to bargain over the union's proposals,
claiming that both were covered by the collective bargaining agreement between
the parties.

     The MSEA's first proposal is that one of the Sanitarians "operate out of
the Augusta office and be reimbursed for expenses on that basis."  The State,
at page 18 of its Brief, argued that this proposal was waived by the union
because its subject matter was included in the Relocations and the Management
Rights Articles of the parties' collective bargaining agreement.  The Reloca-
tions Article clearly is, by its terms, not controlling over the MSEA's first
demand.  The Article states, in relevant part:

          "This Article does not apply to employees relocating in
     connection with any reduction in force or to employees in job

                                    -24-
______________________________________________________________________________


     classes which traditionally have required performance of duties
     at other than a fixed location."

Professional and Technical Services Bargaining Unit, 1980-1981 Collective
Bargaining Agreement, Article XXVIII.  The Management Rights Article, as noted
above, permits the State to make the unilateral change but is 'silent on the
effects of said change.  The effects of the unilateral change upon the
employees' working conditions is obvious.  Each employee now has to cover one-
half of the State of Maine, rather than one-third  as before.  This change in
workload entails increased driving time and distances.   Furthermore, each
employee is responsible for inspecting many more beauty shops.  Finally,
change of an employee's base of operations affects the basis of mileage
reimbursements which each receives.  All of these are effects upon working
conditions, mandatory subjects of bargaining, resulting from the unilateral
change.

     The MSEA's second proposal is for one of the Sanitarians to be "provided
a state vehicle for his work." The State averred that the State Vehicles and
Equipment and the Management Rights Articles of the relevant agreements cover
this subject.  The State Vehicles and Equipment Article reads as follows:

         "1.  No employee shall be required to operate any State vehicle
     or equipment which is unsafe.  An employee shall not be subject to
     any penalty or disciplinary action because of failure or refusal to
     operate or handle any equipment which he reasonably believes to be in
     unsafe condition.  In any such circumstance an employee shall call the
     matter to the attention of his/her supervisor for proper action.

          2.  Other than motor vehicles, and except where employees have
     traditionally supplied their own tools, all employees shall be pro-
     vided such equipment and tools as are reasonably necessary for their
     jobs, such as, drafting equipment, potato rakes, flashlights and bat-
     teries, and supplies.

          3.  Each ferry service vessel shall be provided with a full com-
     plement of necessary tools."

Professional and Technical Services Bargaining Unit, 1980-1981 Collective
Bargaining Agreement, Article XXXVI.  This Article clearly does not cover the
decision to provide automobiles to employees for their work.  The Management
Rights Article, while allowing the State to make the unilateral change, is
silent on the issue of the effects of said change, including the question of
providing State cars to employees.  The use of State cars clearly relates to
an employee's working conditions and is, therefore, a mandatory subject of
bargaining.

                                    -25-
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     Both of the MSEA's bargaining proposals involve the effects of the uni-
lateral change upon mandatory subjects of bargaining and neither of them was
covered by the provisions of the relevant collective bargaining agreement.
The State presented no evidence that either proposal was raised during the
pre-agreement negotiations or that either could have been so raised.  The MSEA
has, therefore, not waived its right to bargain over these proposals, under
the waiver provisions set forth in the Conclusion of Negotiation Article in
the collective bargaining agreement.  We conclude that the State violated its
duty to bargain in good faith, as mandated by 26 M.R.S.A. Section 979-C(1)(E),
when it failed to notify the MSEA of the unilateral change, prior to implemen-
tation, and further when it refused to bargain over the two bargaining
proposals made by the MSEA.  We will order an appropriate remedy for these
violations.


                                    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 Title 26 M.R.S.A. Section 979-H, it is ORDERED:

     1.  That the State of Maine, its representatives and agents, cease and
         desist from refusing to bargain with the Maine State Employees Asso-
         ciation over said Association's following proposals to bargain over
         the effects, resulting from the State's unilateral change of the
         Department of Environmental Protection's Bureau of Oil into the
         Bureau of Oil and Hazardous Materials, upon mandatory subjects of
         bargaining.  The State shall, within ten calendar days after receipt
         of a written request to meet and bargain thereon, bargain over each
         of the following proposals:

              a.  Employees assuming the new duties and later washing
                  out to be reassigned to other duties at a comparable
                  level.

              b.  State to provide initial and on-going training for all
                  Oil and Hazardous Materials Specialists as outlined in
                  Inter-Departmental Memorandum dated October 30, 1980.

              c.  All safety requirements as set out in the DEP Policy
                  Statement, the Bureau's Field Health and Safety Manual
                  and the EPA Safety Manual for Hazardous Waste Site In-
                  vestigations to be met continuously.

              d.  All equipment set out in the Hazardous Equipment Needs
                  statement to be provided continuously.  In addition,

                                    -26-
______________________________________________________________________________


                  appropriate environmental monitoring equipment, response
                  trailers, sample storage areas and other necessary equip-
                  ment to be provided.  The State to monitor new developments
                  in equipment and provide improved equipment when appro-
                  priate.  Initial and on-going training to include the
                  proper use and limitations of protective equipment.

              e.  If the M.S.E.A. can establish a direct relationship between
                  the number of employees responding to hazardous materials
                  incidents with the health and safety of those employees:

                  All incidents for investigation to require response from at
                  least 2 employees.  All responses for sampling or clean-up
                  to require 4 employees.

     2.  That the State of Maine, its representatives and agents, cease and
         desist from refusing to bargain with the Maine State Employees Asso-
         ciation over said Association's following proposal to bargain over
         the effect, resulting from the State's unilateral change of the
         minimum qualifications for the Human Services Workers and Human
         Services Managers employed by the Department of Human Services, upon
         mandatory subjects of bargaining.  The State shall, within ten
         calendar days of receipt of a written request to meet and bargain
         thereon, bargain over the following proposal:

              Training program to be provided for incumbents wishing to
              complete credits.

     3.  That the Maine State Employees Association is, within twenty calendar
         days of the date hereof, to document to the Board any actual injury
         or harm, experienced by bargaining unit employees affected by the
         unilateral change in the minimum job qualifications for the Human
         Services Workers and Human Services Managers employed by the Depart-
         ment of Human Services.  The Board will then, consistent with the
         requirement of due process of law, take such further action, consis-
         tent with the decision herein, to effectuate the policies of the Act.

     4.  That the State of Maine, its representatives and agents, cease and
         desist from refusing to bargain with the Maine State Employees Asso-
         ciation over said Association's following proposals to bargain over
         the effects, resulting from the State's unilateral change from three
         to two Sanitarians in the Board of Cosmetology, upon mandatory sub-
         jects of bargaining.  The State shall, within ten calendar days of
         receipt of a written request to meet and bargain thereon, bargain
         over the following proposals:

              a.  That Mr. Robert Willette operate out of the Augusta
                  office and be reimbursed for expenses on that basis.

              b.  That Mr. Willette be provided a state vehicle for his
                  work.

                                    -27-
______________________________________________________________________________


Dated at Augusta, Maine, this 22nd day of December, 1982.

                                       MAINE LABOR RELATIONS BOARD


                                       /s/___________________________________
                                       Edward H. Keith
                                       Chairman


                                       /s/___________________________________
                                       Don R. Ziegenbein
                                       Employer Representative


                                       /s/___________________________________
                                       Harold S. Noddin
                                       Employee Representative

     
     The parties are advised of their right, pursuant to 26 M.R.S.A. Section
979-H(7), to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.

                                    -28-
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