Case No. 98-01
                                      Issued:  October 7, 1997  

LOCAL 1989, SEIU,                  )
                      Complainant, )
                                   )      MEMORANDUM AND ORDER
               v.                  )      ON MOTION TO DISMISS
STATE OF MAINE,                    )
                      Respondent.  )

     A prehearing conference was held in the above-referenced
matter at Augusta, Maine, at 11:30 a.m. on Thursday, September 11,

     Present for the Complainant was Timothy L. Belcher, Esq. 
Present for the Respondent was Julie M. Armstrong, Esq.  Argument
was taken on the record in connection with Respondent's motion to
dismiss the complaint for failure to state a claim upon which
relief may be granted.  For the reasons which follow, the motion
to dismiss will be granted.                                                           

     The collective bargaining agreements between the parties
became effective on January 31, 1997, except for the Law
Enforcement Services agreement which became effective on April 16,
1997.  At issue between the parties is a "Heat Stress Policy" 
that the State of Maine implemented effective April 1, 1997.  
At oral argument, the parties agreed that the Heat Stress Policy
represented a change from a similar policy in effect during
negotiations over the current agreements.  Implementation of the
policy is the subject of a pending grievance, under procedures
agreed upon by the parties for resolving contract disputes.  
The parties further agree that the State negotiated the new 
policy with a joint management and labor building safety


committee established under the collective bargaining agreement. 
The parties dispute whether the committee had jurisdiction to 
give its approval on this issue.

     In its complaint filed on July 3, 1997, in this forum, the
Association alleges that the new Heat Stress Policy was
implemented unilaterally, without negotiation between the parties
and that it eliminated rights and benefits established under the
old policy.  It further alleges that in implementing the new
policy, the State failed to bargain collectively in violation of
26 M.R.S.A.  979-C(1)(E) and violated 26 M.R.S.A.  979-C(1)(A)
by interfering, restraining and coercing employees in the
exercise of guaranteed rights.

     The State moves to dismiss the complaint on the grounds that
the zipper clause contained in the collective bargaining agree-
ments between the parties operates as a waiver of either party's
obligation to bargain midterm and therefore precludes the instant
complaint.  The State further contends that implementation of 
the new policy was fully within rights it retained under the
agreements between the parties and that issues concerning
contract violation must be reserved for the arbitrator.  
The Association counters that it is not seeking to bargain but
rather to preserve the benefit of the bargain it has already
made.  It asserts that "the complaint presents a straightforward
assertion of a unilateral change and should not be dismissed."

     Although the complaint refers only to the alleged unilateral
change of the Heat Stress Policy as the basis for the claimed
violations of  979-C(1)(A) & (1)(E), at oral argument the
Association further alleged that the seriousness of the issue for
many state employees and the State's negotiation of the issue
with the labor-management committee rather than the union
undermined the union's status as a bargaining agent and thus
acted as an independent interference, coercion and restraint in
violation of  979-C(1)(A).


     The zipper clause in the relevant collective bargaining
agreements provides:

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

In State v. MSEA, 499 A.2d 1228 (Me. 1985), the Law Court held
that a zipper clause of this type operates as a waiver of the
statutory right to bargain over unilateral changes and therefore
precludes a claim of violation of  979-C(1)(E).  Accord MSEA v.
State of Maine, No. 92-19, slip op. at 35 (M.L.R.B. Jan. 6,
1994); AFSCME, Council 93 v. State of Maine, No. 94-37 (M.L.R.B.
June 17, 1994).  Where the (1)(A) claim for interference,
coercion and restraint arises out of and is dependent on the
(1)(E) failure to bargain claim, it must suffer the same fate. 
In both its written response to the motion to dismiss and at oral
argument, the Association has essentially conceded the force of
these precedents on its allegation of violations of (1)(E) and
(1)(A) arising out of the claimed unilateral change.

     Were we faced with only the complaint as originally filed,
therefore, the State's motion to dismiss would be granted.  It
remains to consider whether the assertion at oral argument that
the State's negotiation with the joint labor-management committee
is an independent basis for a violation of C(1)(A) changes this
result.  I conclude that it does not.

     I note first that no motion was made at the prehearing
conference to amend the complaint to add this alternate factual
basis for the (1)(A) violation.  In light of the ease with which
a formal motion to amend could be made, however, and in the
absence of timeliness objections or other apparent notice
problems, I do not base this decision on the lack of a formal


motion to amend.  More substantively, the undermining of union
status claim is derivative of the failure to bargain claim and 
it is therefore also precluded by zipper clause precedents.  

     The act prohibited in  979-C(1)(E) is:  "Refusing to
bargain collectively with the bargaining agent of its employees
as required by section 979-D."  (Emphasis added.)  As we all
know, a (1)(E) claim typically also gives rise to a claim of
interference, restraint and coercion under (1)(A).  As discussed,
the current complaint contains both claims, focusing however on
the alleged unilateral nature of the policy change.  Despite the
superficial appeal of the position that the State's dealings with
the joint labor-management committee constitute a separate (1)(A)
violation, I conclude that the claim that the State improperly
negotiated the policy change with the wrong agent is a simple
variant on the claim that it failed to bargain with the
bargaining agent of its employees.  This is a (1)(E) claim that
is precluded under the zipper clause precedents.  

     If the arbitrator finds that the State was, as it insists,
within its contractual rights in implementing the new policy, the
issue of whom it chose to negotiate the change with would
disappear.  If the arbitrator finds a contractual violation,
under State v. MSEA, the union's remedies are still limited to
those available through grievance arbitration procedures because
the zipper clause operates as a waiver of the statutory right to
collective bargaining.  Id. 499 A.2d at 1231.  

     The Association has cited no authority to the contrary. 
Although there was reference during oral argument to Board
decisions which have carved out an exception to zipper clause
preclusion where the level of claimed (1)(A) interference goes to
the heart of the collective bargaining relationship, see, e.g.,
MSEA v. State of Maine, No. 92-19, slip op. at 35-36, 41
(M.L.R.B. Jan. 6, 1994); rev'd, No. CV-94-27 (Me. Super. Ct.,
Ken. Cty., May 10, 1994); vacated sub nom. Bureau of Employee


Relations v. Maine Labor Relations Board, 655 A.2d 326 (Me.
1995); Teamsters Union Local 340 v. Aroostook Co. Sheriff's
Dept., No. 92-28, (M.L.R.B. Nov. 5, 1992); AFSCME, Council 93 v.
State of Maine, No. 91-18, 14 NPER-ME 22007 (Me.L.R.B. May 31,
1991); aff'd, No. CV-91-208 (Me. Super. Ct., Ken. Cty., Nov. 27,
1991); vacated sub nom. Bureau of Employee Relations v. AFSCME,
Council 93, 614 A.2d 74 (Me. 1992), that line of cases is not
applicable here.  The body with which the State negotiated the
Heat Stress Policy was a joint labor-management committee which
was set up pursuant to the collective bargaining agreement to
deal with issues of building safety.  It concededly achieved at
least some amelioration of the original policy proposed by the
State.  Under these circumstances and even without resolving
issues raised by the union concerning the committee's
jurisdiction, this case does not, on its face, implicate the more
fundamental disruptions of the collective bargaining relationship
that have given rise to the exception referred to.  My conclusion
in this regard does not change even accepting the Association's
assertions of the amount of upset which this issue has caused
rank and file union membership.

     Respondent's motion to dismiss will be granted.

     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.  It is further ORDERED that Respondent's
motion for attorneys' fees be, and it hereby is, denied.

Dated this     day of October, 1997.

                                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.