State of Maine v. MSEA and MLRB, CV-86-353, reversing No. 84-17, 
affirmed, State of Maine v. MSEA et al.,  538 A.2d 755 (Me. 1988) 

STATE OF MAINE                                        SUPERIOR COURT
KENNEBEC, SS.                                           CIVIL ACTION
                                                Docket No. CV-86-353

STATE OF MAINE                 )
               Plaintiff       )
          v.                   )          OPINION AND ORDER
RELATIONS BOARD                )
               Defendant       )

     This matter is before the court on the State's appeal from a
decision by the Maine Labor Relations Board that the State has a
duty to bargain with the Maine State Employees Association over
certain pension and retirement issues addressed by the State
retirement law.  The appeal is brought pursuant to Rule 80C M.R.
Civ. P. and 26 M.R.S.A.  979-H(7).

     Basically, the State objects that the subjects which it has
been ordered to bargain over are subjects prescribed or controlled
by State law and thus removed from the collective bargaining
process by 26 M.R.S.A.  979-D(1) (E) (1) which provides that "...
all matters relating to the relationship between the employer and
employee shall be the subject of collective bargaining, except
those matters which are prescribed or controlled by public law."

     The Maine Labor Relations Board determined, as the Maine State
Employees Association contends, that although the disputed subjects
are addressed by State law, the obligation to bargain on these
issues remains because retirement and pension issues are required


subjects of collective bargaining under the State Employees Labor
Relations Act, 26 M.R.S.A.  979, et seq.


     While the case involves essentially legal issues, some
detail in review of the facts is important to understand the case
and the mootness issue raised by the court.

     In late 1982 the State and the Maine State Employees Association
("MSEA") commenced negotiations over collective bargaining agreements
to succeed agreements expiring on June 30, 1983.  Under the State
Employees Labor Relations Act, the State is the public employer,
26 M.R.S.A.  979-A(5), and MSEA is the certified bargaining
agent, 26 M.R.S.A.  979-A(1), for five State employee bargaining
units, i.e. the Administrative Services, Law Enforcement Services,
Operations, Maintenance and Support Services, Professional and
Technical Services and Supervisory Services bargaining unites.
The negotiations pertained to all five units.

     The MSEA proposals for negotiation included several proposals
which addressed retirement benefits.  During the negotiations and
in the course of dispute resolution procedures MSEA limited its
proposals on retirement benefits to four items.  The first proposal
was to make institutional employees involved in prison management
eligible for retirement benefits equal to one-half their average
final compensation upon completion of twenty (20) years of State
service and attainment of age fifty (50).  Under that proposal,
the employees would contribute to the Maine State Retirement


System at the rate of 7.5 percent of their compensation.  The
State objected to the proposal, stating that it was prescribed or
controlled by 5 M.R.S.A.  1095 and 1121 (1983 Supp.) which set
terms of service, age and contribution requirements for State

     The second proposal was the same as the first except that it
applied to employees in the Law Enforcement Services bargaining
unit, and provided that the employees would be eligible to retire
upon completion of twenty (20) years of service regardless of
their age.  The State objected to this proposal on the same
grounds as the first.

     The third proposal was to base the benefits payable to
survivors of State employees on the employees' average final
compensation and years of State service.  The State objected that
this proposal was prescribed or controlled by 5 M.R.S.A. 
1124(1)(B)(1) (1983 Supp.)

     The fourth and final proposal was to make employees eligible
to purchase credits for military service after 10 years rather
than 15 years in State service.  The State objected that this
proposal was prescribed or controlled by 5 M.R.S.A.  1094(13)
(1983 Supp.)

     The State and MSEA held many bargaining sessions regarding
successor collective bargaining agreements.  Ultimately, MSEA
petitioned the Maine Labor Relations Board for fact-finding to
aid in resolution of the parties' disputes, pursuant to 26 M.R.S.A.


     Upon completion of fact-finding the parties returned to
bargaining and then entered mediation.  With a number of issues
unresolved, MSEA filed a request with the Executive Director of
the MLRB to order interest arbitration under 26 M.R.S.A.  979-D(4).
On November 28, 1983 the Executive Director declared that an
impasse existed and issued an order requiring arbitration.
Throughout the negotiations and the dispute resolution procedures
the State declined to bargain over MSEA's proposals on retirement
issues, urging that the four retirement related proposals were

     On December 29, 1983, MSEA filed a complaint with the MLRB
asserting that its proposals on retirement issues were mandatory
subjects of bargaining and that the State's refusal to bargain
over them violated 26 M.R.S.A.  979-C(1)(E).  The State contended
in response that MSEA's retirement proposals were not mandatory
subjects of bargaining and counterclaimed that MSEA violated 26
M.R.S.A.  979-C(2) (B) by insisting on negotiating over the proposals
to the point of impasse.

     The Board deferred deciding the case until the Supreme
Judicial Court ruled on another case involving the issue of
whether retirement benefits are a mandatory subject of bargaining.
In the case then before the Law Court the Board had ruled that
certain retirement benefits were not lawful subjects of collective
bargaining because they were "prescribed or controlled by public
law."  MSEA v. State of Maine, MLRB Case No. 82-05 (Dec. 22,1
982).  The Board's decision had been affirmed in relevant part by


the Superior Court.  MSEA v. State and MLRB, Sup. Ct. Ken. Cty.
CV-83-09 (June 28, 1983).  The Law Court reversed the Superior
Court on other grounds without reaching the "prescribed or controlled"
issue.  State of Maine v. Maine State Employees Association, 499
A.2d 1228 (Me. 1985).

     Although the decision of the Law Court was not rendered
until October, 1985, the parties agreed before the MLRB that the
instant case was not moot because the issue presented here would
in all likelihood arise in future negotiations.  Thus, the MLRB
issued its decision on July 17, 1986.  MSEA v. State of Maine,
MLRB No. 84-17 (July 17, 1986)

     The Board reversed its ruling in Case No. 82-05 and held
that MSEA's four proposals on retirement benefits were mandatory
subjects of bargaining.  As a result, the Board ruled that the
State violated 26 M.R.S.A.  979-C(1)(E) by refusing to negotiate
with MSEA over those proposals.  The Board ordered the State to
cease and desist from failing and refusing to negotiate over such
proposals concerning retirement benefits as were made by MSEA in
this case.  The State then petitioned this Court for review of the
Board's decision.

     While the Board had the matter under consideration, the
Legislature, in 1985, significantly revised the veterans and
other members buy back and service credit provisions of 5 M.R.S.A. 
1094 by amendments adopted in P.L. 1985 c. 365.  Then, in 1986,
before the final MLRB decision, the Legislature approved a complete
recodification of the State employee retirement laws, P.L. 1986


c. 801, to be effective January 1, 1987.  One focus of contention
in the recodification was amendment of the 20 year retirement
eligibility which significantly restricted future eligibility for
20 year retirement.  Twenty year retirement issues are now addressed
in 5 M.R.S.A.  17708-17712 and 17851 (1987 Supp.).

     The recodification also completely changed the wording of
the law related to military service credits which now appears at
5 M.R.S.A.  17760 (1987 Supp.).  However, the requirement that a
State employee have at least 15 years of otherwise creditable
service to purchase military service credits remains essentially
unchanged.  5 M.R.S.A.  17760(2)(A) (1987 Supp.).  The death
benefits recodification also indicates significant changes in
wording, but not, apparently, significant changes in benefits,
compare 5 M.R.S.A.  1124(1)(B)(1) (1983 Supp.) with 5 M.R.S.A. 
17953 (1987 Supp.).


     The case before the court involves a controversy about
negotiations leading to a 1983 collective bargaining agreement
which has since been superceded by a separate and independent
collective bargaining agreement.  Further, the controversy involved
statutes cited by the MLRB and the parties which have since been
recodified and in some important areas significantly revised.
With this summary of events, it would appear that the case is
moot, but mootness is not always what it appears.


     Controversies which are capable of repetition, but which do
not easily lend themselves to final judicial review as they arise
may be addressed, even if moot, if the controversy is one which
is continuing between the parties or highly likely to arise
again.  Lynch v. Town of Kittery, 473 A. 2d 1277 (Me. 1984);
Blance v. Alley, 404 A. 2d 587 (Me. 1979); compare Sanford Teachers
Ass'n. v. Sanford School Committee, 409 A.2d 244 (Me. 1979).

     In the instant case, there can be no doubt that the controversy
between the State, the MSEA and the MLRB regarding bargainability
of issues explicitly addressed in the retirement statute is a
continuing one.  Further, the controversy here involves specific
numbers addressed in the retirement statutes.  There is no issue
here involving an ambiguous section of the statute which may or
may not prescribe or control bargaining issues depending upon how
that section is interpreted.  Here there is explicit conflict
between the numbers specified by law and numbers the MSEA is
seeking to establish in the bargaining process.  Were MSEA successful
in the bargaining process, legislative change would be mandatory
to bring the results of bargaining into conformance with the law.
Further, although the statutes at issue have been changed, in at
least two instances, the military service buy back question and
the survivor benefits question, the statutory changes involve
more form than substance in relation to the issues about which
the MSEA seeks to bargain.  For example, the 15-year State service
requirement to qualify for military service buy backs has remained
unchanged throughout the entire period of dispute.


     Accordingly, as to the survivor benefits and military service
credit purchases issues, the court determines that the exceptions
to the normal mootness rule would apply because the dispute at
issue is a continuing one, escalated by the MLRB's findings in
favor of the MSEA.  The relatively short times in which bargaining
is normally attempted to be accomplished, and the relatively long
time which a matter takes to wend its way through the processes
of the MLRB, make matter in controversy one which is unlikely
to be easily resolvable by judicial review within normal processes
before the controversy becomes moot.  Further, the issue is one
where there is a significant public interest in resolution.
Accordingly, the exception to the mootness rule applies.  See
Blance v. Alley, supra.

     The continuing viability of the dispute as to efforts by the
MSEA to expand eligibility for 20 year retirement is more problematic.
The recent legislative action in enactment of P.L. 1986, c.
801 indicates a clear direction to restrict eligibility for 20
year retirement which is inconsistent with MSEA's efforts in this
regard.   Accordingly, the likelihood of such expansion of 20
year retirement efforts arising in the future is less certain,
the battle having been fought and lost in the Legislature.
However, that point is inconsequential for purposes of this

     The clear question presented by this case is whether explicit
numbers set out in the retirement statutes which relate to benefit
levels and qualifications for retirement may be subject to collective


bargaining, or whether bargaining on such issues is expressly
precluded by 26 M.R.S.A.  979-D(1)(E)(1) which excludes from
bargaining matters prescribed or controlled by public law.
On this question, the court has carefully reviewed the MLRB
decision and order of July 17, 1986, and the court is cognizant
of the MLRB's considerable skill and expertise in this area, and
the normal care with which the Board addresses the issues before
it.  However, when read in light of the explicit language of the
"prescribed or controlled" law, and recent interpretations such as
Maine Department of Inland Fisheries and Wildlife v. Maine State
Employees Association, 503 A.2d 1285 (Me. 1986), it is difficult
to understand how the MLRB could have rationally reached their

     The touchstone for the MLRB's determination appears to
be the conclusion, with which this court does not quarrel, that
the State Employees Labor Relations Act authorizes and in fact
mandates bargaining regarding retirement and pension issues.
State law rather evidently authorizes bargaining on pension and
retirement issues, just as it authorizes bargaining on wages,
hours, working conditions, and disciplinary procedures, but all
subject to the "prescribed or controlled" limitation.  In interpreting
statutes, it is well established that specific limitations prevail
over general grants of authority.  That is certainly the case
here.  The prescribed or controlled language would be meaningless
if read, as it was read in this instance by the MLRB, to be


overridden by general authority to bargain on all wages, hours,
and working conditions issues.

     In fact, the direction of analysis must be the reverse,
determining general authority to bargain on wages, hours, and
working conditions subject to the limitation that issues explicitly
determined by statute are not bargainable.  Here, there is no
dispute that the issues are explicitly determined by statute.
All of the issues in dispute relate to specific numbers established
in the retirement statutes about which MSEA seeks to bargain.  If
anything is prescribed or controlled by statute, these matters
are prescribed or controlled by statute.  There can be no basis
for a suggestion that the statute at issue may be ambiguous when
a specific number in a statute is the focus of dispute.  The 15
year service prerequisite for purchase of military service credits
is prescribed or controlled by 5 M.R.S.A.  17760-2-A.  That 15
year limit is not bargainable.  Likewise, the survivor benefit
levels established pursuant to 5 M.R.S.A.  17953 are not bargainable.

     A simple reading of these sections, along with the "prescribed
or controlled" section of the State Employees Labor Relations Act
should establish that point beyond dispute.  If the statutes are
to be given their plain meaning or even their reasonable inter-
pretation, no other result is possible.


     Therefore, the court Orders and the entry shall be:

     1.  Appeal SUSTAINED.

     2.  The Order of the Maine Labor Relations Board, dated July
         17, 1986, is VACATED.

     3.  REMANDED to the Maine Labor Relations Board for
         such proceedings, if any, as may be necessary to resolve
         any outstanding issues.

Dated: January 17, 1987

                                    Donald G. Alexander
                                    Justice, Superior Cour