Maine State Employees Association v. Maine Department of Inland 
Fisheries and Wildlife and State of Maine, No. 85-02, 8 NPER ME-16010
(Jan. 17, 1985), vacated, Maine Department of Inland Fisheries and 
Wildlife v. Maine State Employees Association, No. CV-85-51 
(Me. Super. Ct., Ken. Cty.), aff'd., 503 A.2d 1285 (Me. 1986)


STATE OF MAINE                                        SUPERIOR COURT
KENNEBEC, ss.                                           CIVIL ACTION
                                                 Docket No. CV-85-51


MAINE DEPARTMENT OF INLAND
FISHERIES AND WILDLIFE and
STATE OF MAINE,

                Plaintiffs

        vs.                                    DECISION and ORDER

MAINE STATE EMPLOYEES ASSOCIATION
and MAINE LABOR RELATIONS BOARD,

                Defendants


     This matter is before the Court pursuant to M.R. Civ. P. 80B
and 26 M.R.S.A.  979-H(7)(Supp. 1984-85) for review of a decision
by the Maine Labor Relations Board that Plaintiff Department
of Inland Fisheries (Department) committed a prohibited practice.
The parties appeared before the Court for a hearing on June
5, 1985.
                
     The central issue is whether 12 M.R.S.A.  7036(6)(Supp.
1984-85), effective January 1, 1984, prohibits the sort of use
of Department vehicles contemplated by the collective bargaining
agreement between the State and the union of Department employees.
                
     The following facts were found by the Maine Labor Relations
Board and are not in dispute.
                                                                              
                                  -1-                                                 
                                     
     The 1982-83 collective bargaining agreement between the
State and the Maine State Employees Association (MSEA), the
certified bargaining agent for the State Employee Supervisory
Services and Law Enforcement Services bargaining units, allowed
game wardens not on regular duty to use Department vehicles
for "necessary personal business or emergencies," provided
"'on-duty' status for communication and operational purposes"
was maintained.  See Law Enforcement Services Unit Agreement
for 1982-83, Article XXXVII, "State Vehicles and Equipment,"
Par. 4(b) and (d); Supervisory Services Unit Agreement for 1982-83,
Article XXXVII, "State Vehicles and Equipment," Par. 5(b) and (d).
"On-duty status for communications and operational purposes"
required wardens using Department vehicles for personal business
to receive and respond to radio complaints about alleged violations
of the law and requests for assistance from other wardens and
law enforcement personnel.  Wardens on such status were also
obligated to investigate any illegal activity they observed.
In addition, departmental policy required the wardens to carry
identification and to have a firearm in their possession.

     In September of 1983, while negotiations between the State
and the MSEA regarding successor collective bargaining agreements
were underway, the Legislature enacted a bill pertaining to
the personal use of vehicles and equipment by Department employees.
That bill, appearing at 12 M.R.S.A.  7036, provides:

          6.  Personal use of vehicles and equipment.
           No employee may use any department equipment
          or vehicles for other than official business.

                                  -2-

"Department" in  7036(6) refers to the Department of Inland
Fisheries and Wildife.  Notwithstanding the passage of  7036(6),
negotiations between the State and the union resulted in collective
bargaining agreements which retained without change the Department
vehicle use policy articulated in the 1982-83 agreements.  The
agreements were ratified by the Legislature and became effective
on September 11, 1984.
                
     Based on  7036(6), the Department has, from that statute's
effective date on January 1, 1984, disallowed the personal use
of Department vehicles contemplated by the collective bargaining
agreements.   The Maine State Employees Association challenges
this policy as a unilateral change in "wages, hours, or working
conditions" constituting a refusal to bargain in violation of
26 M.R.S.A.  979-C(1)(E) , 979-D(1)(E), and as beyond the intendment
of  7036(6).
                
     Title 26 M.R.S.A.  979-D(1)(E)(1) provides that a matter
is not appropriate for collective bargaining to the extent it
is "prescribed or controlled by public law."  The purpose of
this exception to the duty to bargain is to "prevent ... a term
of a collective bargaining agreement from being in violation
of existing law."  State v. Maine Labor Relations Board, 413
A.2d 510, 515 (Me. 1980).  Under  979-D(1)(E)(1), "[t]he
parties to collective bargaining are prohibited from negotiating
an agreement, even though it concerns 'wages, hours, [or] working
conditions,' where that agreement 'would be in violation of
or inconsistent with any statutory directive."' Id.
                                                                             
                                 -3-                                             
                                
     The collective bargaining agreements effective September
11, 1984, like their predecessors, allow game wardens to use
Department vehicles for personal business, provided limited
"on-duty status for communication and operational purposes"
is maintained.  12 M.R.S.A.  7036(6) prohibits the use of Department
vehicles "for other than official business."  (Emphasis added.)
The Court is persuaded that the assumption of "on-duty status
for communication and operational purposes" cannot turn a personal
errand into "official business."   Oficial (sic) business is official
business.  Given its plain meaning,  7036(6) prohibits the
sort of use of Department vehicles contemplated by the collective
bargaining agreements.
               
     The MSEA argues that the Legislature somehow "ratified"
the vehicle use policy in the collective bargaining agreements
when it approved the cost items in the agreements pursuant to
26 M.R.S.A.  979-D(1)(E)(3), 979-A(5) (1974 and Supp. 1984-85).
The Legislature's role in the collective bargaining process
is essentially the appropriation of money to fund the economic
terms in the agreements reached by the bargaining parties.
The Court does not consider the Legislature's approval of the
agreements to reflect approval on its part of specific substantive
provisions in the agreements.

                                  -4-

     Therefore, it is ORDERED and the entry shall be:
               
     1.  Appeal SUSTAINED.
               
     2.  The decision of the Maine Labor Relations Board is
REVERSED.
               
     3.  The order of the Maine Labor Relations Board is VACATED.



                              
Dated: June 28, 1985              /s/________________________________  
                                          MORTON A. BRODY
                                          Justice, Superior Court

                                  -5-

Maine State Employees Association v. Maine Department of Inland 
Fisheries and Wildlife and State of Maine, No. 85-02, 8 NPER ME-16010
(Jan. 17, 1985), vacated, Maine Department of Inland Fisheries and 
Wildlife v. Maine State Employees Association, No. CV-85-51 
(Me. Super. Ct., Ken. Cty.), aff'd., 503 A.2d 1285 (Me. 1986)