Case No. 94-37

AFSCME, COUNCIL 93,            )
             Complainant,      )
                               )      PREHEARING CONFERENCE
             v.                )      MEMORANDUM AND ORDER
STATE OF MAINE,                )
            Respondent.        )

     A prehearing conference was held in the above-referenced
matter at Augusta, Maine, at 2:30 p.m. on Thursday, June 2, 1994.

     Present for the Complainant were Kenneth Dietrich and
Stephen Sunenblick, Esq.  Present for the Respondent was Sandra
Carraher, Esq.

                        MOTION TO DISMISS

     The controversy between the parties arises out of a
procedure, designated as a work rule, which was implemented by
the Department of Corrections at the Maine Correctional Center on
October 17, 1993.  Notice of the rule was given to all employees
in a memorandum dated October 4, 1993, and accompanying
guidelines.  Copies of the memorandum, guidelines and an Employee
Consent Form were attached to the complaint.

     The work rule requires employees at the prison to submit to
a search for contraband whenever the Superintendent of the prison
or his designee believes there is reasonable suspicion that an
employee is carrying contraband into or state property out of the
institution.  An employee who is asked to submit to a search is
provided with the Employee Consent To Search Form and guidelines.
The guidelines provide, inter alia:  "The employee to be searched
will be informed of his/her right to have a Union Representative
or Steward present, if one is reasonably available".


(Underlining is contained in the form.)  The guidelines further
provide:  "The employee has an obligation to submit to a search
but does not have the obligation to sign the Employee Consent to
Search Form.  Any employee who refuses to submit to a search is
subject to disciplinary action up to and including discharge."

     The consent form contains an acknowledgment by the employee
that he or she has been advised of his or her constitutional
right to refuse consent and the right to withdraw consent at any
time.  The form also requires the employee to acknowledge that he
or she has been advised that if consent is given, any evidence
found as a result of the search can be seized and used against
the employee in a court of law and to acknowledge his or her
understanding that a failure to consent to the search will result
in the employee's immediate departure from the grounds of the
Maine Correctional Center and possible further disciplinary
action, up to and including discharge.

     The complaint in this matter was filed with the Board on
February 28, 1994.  It alleged that the Respondent had added a
condition of employment at the Maine Correctional Center by
requiring employees to be searched prior to entering the facility
and that Respondent had refused to bargain this added condition
of employment.  The relief sought in the complaint was a cease
and desist order and an order requiring Respondent to negotiate
changes in conditions of employment.  Although the rule has been
effective since October 19, 1993, as of the date of the
prehearing conference, the parties were aware of no search or
request to search which had taken place under the rule.

     On February 28, 1994, Marc P. Ayotte, Executive Director of
the Board, notified the Complainant by certified letter that the
complaint was insufficient in that it failed to comply with
the portion of Rule 4.03(4) which requires that complaints
include "the sections, including subsection(s), of the labor
relations statutes alleged to have been violated."  On March 2,


1994, Complainant filed an amended complaint alleging that the
Respondent violated Title 26, Chapter 9-A, Section 964(1)(E) by
refusing to bargain a change in a condition of employment as
required pursuant to Title 26, Chapter 9-A, Section 965, Section

     By letter dated March 3, 1994, Mr. Ayotte advised
Complainant that it had erred in citing violations of the
Municipal Public Employees Relations Law, 26 M.R.S.A., Chapter
9-A, instead of the State Employees Labor Relations Act, 26
M.R.S.A., Chapter 9-B ("SELRA").  Mr. Ayotte further advised that
the error did not render the complaint insufficient since the
true intent was clear and the respondent could readily understand
the import of the charge and prepare a defense but suggested that
Complainant amend the complaint again before or at the prehearing
conference in order to accurately allege violation of the
pertinent provisions of SELRA.

     On March 17, 1994, Respondent moved to dismiss the complaint
for failure to state a claim upon which relief can be granted.  At
the prehearing conference, oral argument was heard on the record
in connection with Respondent's motion to dismiss.

     Article 17 of the collective bargaining agreement between
the parties contains a zipper clause which provides in pertinent
part that each party:

     voluntarily and unqualifiedly waive (sic) the right,
     and each agrees that the other shall not be obligated to
     bargain collectively with respect to any subject or
     matter referred to or not referred to, covered or not
     covered in this Agreement, even though such subjects or
     matters may not have been within the knowledge or
     contemplation of either or both of the parties at
     the time they negotiated and signed this Agreement.

     In support of its motion to dismiss, Respondent argues that
the allegation of an unlawful failure to bargain in connection
with the work rule is barred by this zipper clause and relevant


Law Court and Board precedents, including State v. MSEA, 499 A.
2d 1228 (Me. 1985), Bureau of Employee Relations v. AFSCME,
614 A.2d 74 (Me. 1992) and MSEA v. State of Maine, Case No. 92-19
(Me.L.R.B., January 6, 1994).

     Complainant contends that these precedents do not control
the result in this case because the search rule and the employee
consent form conflict with long-standing principles of labor law
regarding the right to have a union representative present when
an employee is being questioned by his employer about possible
criminal wrong-doing (Weingarten) and the right to be protected
from the Hobson's choice between dismissal and the making of
possibly incriminatory statements (Garrity).  Complainant argues
that these important rights were reserved to employees through
the Maintenance and Benefits clause contained in Article 28 and
that Weingarten and Garrity issues were not present in the cases
relied upon by the State.  Complainant further contends that the
contradictory and coercive nature of the employee consent form
and guidelines distinguishes this case.  Lastly, Complainant
resists dismissal on the ground that the automatic discipline
resulting from a refusal to sign the consent form or submit to a
search violates the agreement contained in Article 14 of the
contract between the parties regarding disciplinary procedures.

     None of these arguments overcomes the clear import of the
cases relied on by Respondent.  As Respondent repeatedly pointed
out during the prehearing conference, the only prohibited act
which has been pled in this case is Section 979-C(1)(E), a
failure to bargain.  No amendments to the complaint were offered
at the prehearing conference.  In Bureau of Employee Relations v.
AFSCME and State of Maine v. MSEA, the Law Court held that a
claim of failure to bargain under Section 979-C(1)(E) may not be
brought where the union has waived its statutory right to demand
bargaining in a zipper clause.  The zipper clause in this case is
at least as broad as those previously found to contain a waiver


of the statutory right to demand bargaining.  Complainant's
argument appears to be that Weingarten rights are sufficiently
more important than the statutory right to bargain to change the
impact of the Law Court's analysis.  No authority has been
offered for this proposition and I am not persuaded by it on its
face.  Similarly, while I agree that the guidelines and the
consent form appear inconsistent in their respective statements
of the consequence of not signing the consent form, Complainant
has not plead anything other than a failure to bargain.

     I also note that while Weingarten concerns may be implicated
by a search of an unrepresented employee in a specific instance,
the employee consent form on its face gives the employee the
right to have a union representative or steward present during
the search if one is reasonably available.  Thus, there appear to
be ripeness issues with respect to these issues.  Moreover, the
general relevance of Garrity is unclear, at least in the
abstract, since the work rule here does not appear, on its face,
to put pressure on the employee to make self-incriminatory
statements.  In any case, the complaint contains no allegation in
connection with Complainant's Weingarten and Garrity arguments.

     With respect to the claims of contractual violations,
normally claims of this type are left to the grievance
arbitration process agreed upon by the parties.  Although the
Board has on numerous occasions stated that a unilateral change
in a contract provision may constitute interference, coercion and
restraint, violation of Section 979-C(1)(A) has not been pleaded.

     Respondent's motion to dismiss the complaint will be


     For the foregoing reasons, it is accordingly ORDERED that
Respondent's motion to dismiss shall be, and it hereby is,
granted and it is further ORDERED that the complaint be, and it


hereby is, dismissed for failure to state a claim upon which
relief may be granted.

Dated this 17th day of June, 1994.

                                   MAINE LABOR RELATIONS BOARD

                                   Kathy M. Hooke
                                   Alternate Neutral Chair

The parties are hereby advised of their right, pursuant to 26
M.R.S.A.  979-H(2) (1988), to appeal this Order to the Maine
Labor Relations Board.  To initiate such an appeal, the party
seeking appellate review must file a notice of appeal with the
Board within fifteen (15) days of the date of the issuance of
this report.  See Rule 4.06(C) of the Board's Rules and
Procedures for full requirements.