Skip Maine state header navigation

Agencies | Online Services | Help

Case No. 18-11
Issued: May 25, 2018






	On December 20, 2017, the Maine State Employees Association filed 
a prohibited practice complaint alleging that the State of Maine 
violated 26 M.R.S. 979-C(1)(A) and (E) in two ways:  First, by making 
an unlawful unilateral change in the reclassification and 
reallocation procedures and, second, by failing to provide 
information requested by the Association.  The Board's Executive 
Director dismissed the first count of the complaint for failure to 
state a claim upon which relief may be granted, pursuant to 979-H(2).  
The Association appealed that dismissal to the Board.
     The first count of the complaint alleges that the State made a 
unilateral change in working conditions following the issuance of the 
Governor's Memorandum of May 22, 2017 ("Memorandum"), requiring 
managers and supervisors to meet with employees to identify the duties 
assigned to and performed by the employee and determine whether those 
duties matched the job descriptions.  If there was a disagreement or 
it was clear the job duties were not those identified in the job 
description, the manager was directed to have a job analysis prepared 
and, if the duties described result in a position upgrade, to find 

[end of page 1]

funding to support that upgrade.  If there was not sufficient funding, 
the managers were directed to reassign duties which were outside the 
employee's classification.  If the duties described result in 
downgrading the position, the Memorandum stated the salary should also 
be reduced.  
     The complaint indicates that the Reclassifications article (Art. 
53) was a subject of several proposals and counterproposals in the 
course of negotiating the 2017-2019 collective bargaining agreement, 
including the State's proposal to eliminate "red-lining" (freezing 
pay) of employees whose positions were downgraded until the employee's 
pay range caught up to his/her pay level.  The State's proposal to 
eliminate red-lining was not adopted.  The parties agreed to some 
changes to Article 53 in the successor agreement, but the complaint 
did not describe these changes. 
     MSEA alleges that implementing the Memorandum's directive was 
a unilateral change in the "long-established process for reclassi- 
fication and reallocation," managers misled employees about the 
purpose of these discussions, and the Bureau of Human Resources staff 
abandoned their established role of auditing positions and
interviewing employees prior to approving reclassifications.
     The State argues that the zipper clause contained in the parties' 
collective bargaining agreements completely waives the parties' 
statutory obligation to bargain during the term of the agreement.  The 
concept of waiver is reflected in  979-D(1)(B), which requires 
parties to bargain upon request, "provided the parties have not 
otherwise agreed in a prior written contract."  The zipper clause in 
both the 2017-2019 agreements and the 2015-2017 agreements states:
           Each party agrees that it shall not attempt to compel 

[end of page 2]

     negotiations 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 nego-      
     tiations that preceded this Agreement or matters that are 
     pecifically addressed in this Agreement.[fn]1
     The parties' collective bargaining agreements include a 
Maintenance of Benefits article which establishes a contractual 
bargaining obligation for certain changes to mandatory subjects of 
bargaining not covered by the agreement.  
     The State argues that because the zipper clause operates as 
a complete waiver of the statutory right to demand bargaining, and 
because the zipper clause was in effect at all relevant times, Count 
1 of the complaint must be dismissed for failure to state a claim.  
The State also notes that "[a]ny alleged violation of the State's 
contractual bargaining obligations would constitute a grievance 
[not a PPC]," and contractual violations are not within the Board's 

     The Executive Director dismissed Count 1 of the Complaint because 
by agreeing to the zipper clause, MSEA had waived the statutory right 
to demand bargaining during the term of the agreement.  The Executive 
Director noted that the zipper clause in this case is identical to 
the clause considered by the Law Court to be very broad and unequivocal 
in State of Maine v. MSEA et al., 499 A.2d 1228 (Me. 1985).  The 
Executive Director also noted that during  negotiations for a 
successor agreement (which is not affected by a zipper clause) the 
parties did bargain over the Reclassification article and agreed to 
some changes.  Finally, the Executive Director observed that if the 

[fn] 1 The zipper clause is par. B of Art. 13, "Conclusion of Negotiations." It 
continued in effect after the expiration of the agreement pursuant to the 
2nd par. of Art. 74, "Terms of Agreement."  The successor agreement included 
the same zipper clause.

[end of page 3]

State's action arguably violated the agreement, MSEA could have 
pursued a grievance or an appeal of a reclassification decision to 
binding arbitration.
     We agree that State of Maine v. MSEA is controlling. 499 A.2d 1228.  In that case, the State made several departmental 
reorganizations which had significant effects on the working 
conditions of a number of employees.  Id. at 1229.  The zipper clause 
central to that case is identical to the zipper clause in this case. 
In both cases, the union waived its right to bargain on matters "that 
could have been raised" or "that were raised" during negotiations, 
and on matters "specifically addressed in the agreement."  The Board 
concluded that even though the changes were authorized by the 
agreement's Management Rights article and therefore "specifically 
addressed" in the agreement, the State should have bargained over the 
impact of certain changes, where those impacts were not already 
addressed in the contract.  Id. at 1230.  
     On appeal, the Law Court disagreed with the Board's holding on 
impact bargaining.  The Law Court held that MSEA had waived its right 
to demand bargaining over the impact of these reorganizations because 
the zipper clause waived the statutory right to bargain in "clear and 
unmistakable language."  Id. at 1233.   The Law Court observed that 
MSEA could have preserved the statutory duty to bargain over the impact 
of organizational changes, but did not.  Id. at 1232.  The parties 
had agreed to the broad language of the zipper clause, including 
matters which "could have been raised," language which the Court 
considered unequivocal.  Id. at 1232.  The Law Court considered 
the analysis in NLRB v. Southern Materials Co., 447 F.2d 15 (4th Cir. 
1971), to be persuasive.  In that case, the company changed two 
matters not covered by the agreement.  The Southern Materials court

[end of page 4]

concluded it was not an unfair labor practice because the union had 
relinquished the right to require bargaining by agreeing to a zipper 
clause that included matters not covered by the agreement.  447 F.2d 
at 18.  The Law Court noted that the zipper clause in that case was 
no broader than the zipper clause before it.  State v. MSEA, 499 A.2d at 1231.
     In the present case, MSEA's argument that the allegations of 
Count 1 constitute a statutory violation has two components.  First, 
MSEA argues that zipper clauses do not authorize unilateral changes, 
they merely enable a party to refuse to negotiate over a given subject 
during the term of the agreement.  Second, MSEA argues that State v. 
MSEA is inapplicable because that case dealt with impact bargaining 
over changes that were specifically authorized by the collective 
bargaining agreement.  Neither argument stands up to scrutiny.
     The argument that zipper clauses do not authorize unilateral 
changes is the same sword/shield analysis that the Law Court expressly 
rejected in State v. MSEA.  499 A.2d at 1232.  The Law Court noted 
that the "sword-shield" analysis is "clearly inconsistent" with 
Southern Materials, which dealt with a unilateral change during the 
term of the collective bargaining agreement.  Id. at 1232.  In 
addition, the Law Court held that to apply an analysis that lets a 
zipper clause act as a 'shield' against mid-term bargaining demands 
but not as a 'sword' to give the employer power to change terms not 
contained in the contract "would effectively negate an otherwise valid 
contractual provision."  Id.  The Law Court emphasized that the 
sword/shield analysis would restrict or eliminate the statutory right 
to negotiate a waiver of mid-term bargaining, a policy decision that 
must be achieved through legislation.  Id. . 

     In spite of the fact that the Law Court expressly stated that 

[end of page 5]

the sword-shield analysis is inconsistent with Southern Materials, 
MSEA claims that the Fourth Circuit Court of Appeals held in that case 
that a broad zipper clause did not give the employer the right to 
unilaterally discontinue giving out Christmas turkeys. (MSEA Br. 12.) 
In the sentence quoted by MSEA to support this assertion, the Circuit 
Court was not referring to the zipper clause, it was addressing the 
effect of the parties "Maintenance of Standards" clause on the duty 
to bargain.  Southern Materials Co., 447 A.2d at 18.  The maintenance 
of standards clause at issue in Southern Materials prevented the 
employer from changing any benefit included in the clause.[fn]2  The full 
paragraph of the Court's discussion of this issue makes it clear that 
the final sentence (quoted by MSEA) was not a ruling on the zipper 
          The text of the waiver clause relieved each party of 
     the obligation to bargain collectively during the term of the      
     contract not only with respect to 'any subject matter 
     referred to or covered in' the contract, but, more 
     importantly, with respect to 'any subject matter not 
     specifically referred to as covered in' the contract. 
     (emphasis added.) Thus, whether the maintenance of standards 
     clause is construed to include or exclude Christmas bonuses 
     is immaterial with respect to the company's obligation and
     the union's right to bargain, because the waiver of the duty 
     to bargain expressly included that which was excluded from 
     the contract as well as that which was included.  This is not 
     to say, however, that if the maintenance of standards clause 
     includes Christmas bonuses that the company would have any 
     right to discontinue them unilaterally.  It would only have 
     the right to decline the union's request to reconsider them 
     during the life of the contract, and conversely the union 
     could decline a similar request by the company.

     NLRB v. Southern Materials Co., 447 F.2d at 18. 

[fn] 2 The clause stated 'no employee shall suffer a reduction in his hourly rate 
of pay by the execution of this agreement," 447 F.2d at 17.  The Court 
remanded the case to the NLRB to determine whether the employer fraudulently 
induced the union to accept the waiver and this maintenance of standards 
language, which the union thought included benefits. Id. at 19.

[end of page 6]

     The Maine Law Court considered the holding of the Southern 
Materials Court to be persuasive with respect to the effect of the 
waiver of mid-term negotiations as well as the impact of the 
maintenance of benefit provision, stating:
     Had [Southern Materials] bonuses not been included [in the 
     maintenance of benefits provision], the zipper clause would      
     preclude mid-term negotiations.  Had bonuses been included, the 
     mid-term negotiations would still be waived but the employer      
     would be in violation of the contract and subject to grievance 
     arbitration rather than the unfair labor practice jurisdiction      
     of the NLRB. 
     State v. MSEA, 499 A.2d at 1231.  
     Addressing the issue presented in State v. MSEA, the Law Court 
held that the "Maintenance of Benefits" provision agreed to by the 
parties created a contractual right to bargain over changes to 
"negotiable wages, hours and working conditions not covered by this 
Agreement ...."  In the present case, the 2015-2017 collective 
bargaining agreement contained an identical provision.  Thus, to the 
extent that the Maintenance of Benefits provision of the expired 
agreement created a contractual bargaining obligation, any failure 
to bargain would be subject to the agreement's grievance procedure, 
rather than a prohibited practice complaint.[fn]3  By waiving the 
statutory right to bargain in the zipper clause, the parties have 
foreclosed a statutory remedy.[fn]4  The only recourse left is that 

[fn]3 We note that in State v. MSEA, the Law Court rejected the notion that the 
presence or absence of a Maintenance of Benefit provision affects the scope 
of the zipper clause, and held that it merely creates a contractual right 
and a potential grievance.  Id.  at 1231 ("The MSEA's argument misses the 
point[,]. . . a contractual and a statutory obligation to bargain may exist 
independently and may differ in content.")

[fn]4 As the Executive Director noted in footnote 2 of his ruling, waiving the 
right to demand mid-term bargaining over the charged changes to the 
reclassification process means the State had no statutory obligation to 
notify the union prior to implementing the change while the agreement was 

[end of page 7]

preserved in the contract itself.  If, as MSEA argues, the zipper 
clause could not be used to make any changes not specifically 
authorized by the terms of the agreement, not only would the zipper 
clause be meaningless, the maintenance of benefits provision would 
be a nullity as well.  
     The Union contends that the Court's analysis in State v. MSEA 
is inapplicable because the decision was dependent on the fact that 
the reorganizations at issue were authorized by the management rights 
clause and the only issue was whether impact bargaining had been 
waived.  (Br. at 13)  This is not the case: the Law Court's reference 
to the fact that the parties had authorized the departmental 
reorganizations in the Management Rights clause was to emphasize that 
impact was a matter that "could have been raised" during the contract 
negotiations, and was therefore subject to the zipper clause.  See 
499 A.2d 1232.  The MSEA's argument simply has no merit:  In Southern 
Materials, the collective bargaining agreement was silent on the issue 
of Christmas bonuses, and the waiver was considered sufficient 
contractual authority for the employer to make the change.  Id.  at 1231.
     We note that the Board's 1989 decision in Maine State Employees 
Association v. State of Maine is not at odds with the Law Court's 1985 
decision in State v. MSEA.  MSEA is correct in stating that in the 
1989 case, the Board concluded that the State's unilateral 
discontinuance of a promotions practice was an unlawful unilateral 
change.  MSEA v. State of Maine, No. 89-06 at 15 (Sept. 5, 1989).  The 
decision was not inconsistent the Law Court's earlier decision because 
it did not involve the zipper clause.  The promotions practice at 
issue derived from a "stop-gap" side agreement the parties had 
executed to address certain federal requirements tied to funding

[fn 4 cont'd] in effect.  Consequently, the Union's fait accompli argument is not 

[end of page 8]

nearly 100 positions at the Department of Labor.  The duration of this 
agreement was unclear, but the Board concluded that promotions 
practice, which had continued for several years, was expressly 
incorporated into the seniority provisions of the collective 
bargaining agreements by the words, "current procedures for filling 
vacancies in the competitive service shall be continued during the 
term of this Agreement?"  Id. at 15.  The case turned on the State's 
repudiation of the established practice that had been expressly 
incorporated into the parties' agreements. 
     For the foregoing reasons, we dismiss Count 1 of the complaint 
because it does not state a claim of a violation of the Act.  The 
Executive Director will schedule a prehearing on Count II in the normal 
course of business.

Dated this 25th day of May 2018


                   Katharine I. Rand

				   Robert W. Bower, Jr.
				   Employer Representative

				   Amie B. Parker
				   Employee Representative

[end of page 9]