State of Maine and Bureau of Alcoholic Beverages v. MLRB and MSEA, 413 A.2d 510 
(April 9, 1980), affirming Superior Court Decision CV-78-484 and MLRB No. 78-23

MAINE SUPREME JUDICIAL COURT                     Reporter of Decisions
                                                 Decision No. 2303
                                                 Law Docket. No. Ken-79-30

                                STATE OF MAINE
                        BUREAU OF ALCOHOLIC BEVERAGES,


                          MAINE LABOR RELATIONS BOARD

                             Argued March 17, 1980
                             Decided April 9, 1980



          The State[fn]1 appeals from the judgment of the Superior
Court, Kennebec County, affirming an order of the Maine Labor
Relations Board (the Board) that the State cease and desist from
refusing to bargain collectively with the Maine State Employees
Association (the Union), the certified bargaining agent for re-
tail store clerks employed in the state liquor stores.  The State
principally challenges the Board's conclusion that the issue of
holiday work is a mandatory subject of bargaining between the
State and the Union under the State Employees Labor Relations
Act, 26 M.R.S.A.  979 et seq. (1974; Supp. 1979).  We deny the

   Before both the Board and the Superior Court the State of
Maine and its Bureau of Alcoholic Beverages were joined as par-
ties, first as respondents in the prohibited practice proceed-
ing and then as Rule 80B plaintiffs in the Superior Court.  This
opinion will use the single designation "the State" to refer to
both appellants.


          The State's refusal to bargain occurred during ongoing
negotiations between the parties concerning a proposed contract
for the liquor store clerks.  Among the items submitted for col-
lective bargaining by the Union were various proposals relating
to holiday work, including work on Washington's Birthday, which
had been designated as a holiday for all state employees by the
Maine Commissioner of Personnel.  By memorandum dated February 6,
1978, the Director of the Bureau of Alcoholic Beverages advised
all store managers that state liquor stores would be open for
business on Washington's Birthday, February 20, 1978, contrary to
the longstanding practice of remaining closed on that holiday.
The Union promptly requested orally that the stores be kept closed,
but made no further attempt to bargain over the issue.  The stores
did open for business on Washington's Birthday, 1978, staffed by
retail store clerks represented by the Union.

     Acting on a prohibited practice complaint filed by the
Union, the Board determined that the State had violated section
979-C(1)(E) of the Act[fn]2 by refusing to bargain over the issue of
holiday work.  The Board ruled that the State's unilateral change
in a term of employment then under negotiation--by requiring the

   26 M.R.S.A.  979-C(1) (1974) provides in part:
     The [State of Maine], its representatives and agents are
     prohibited from:
          . . . .
          E.  Refusing to bargain collectively with the bar-
          gaining agent of its employees as required by section
          979-D; . . ..


retail store clerks to work on Washington's Birthday without first
negotiating with the Union over the impact of such holiday work
on the clerks' "wages, hours, [and] working conditions'[fn]3--consti-
tuted a refusal to bargain.  The Board ordered:

     [t]hat the State of Maine and the Bureau of Alcoholic
     Beverages, Department of Finance and Administration,
     cease opening State Liquor Stores on days designated
     State Holidays by the Commissioner of the State of Maine
     Department of Personnel without negotiating such pro-
     posed openings with the bargaining agents for the State
     Liquor Store employees.

On the State's appeal the Superior Court affirmed the Board's or-
der.  The State's timely appeal to this court followed.


          Before this court the Board has participated fully as
an appellee by filing a brief and arguing orally.  At oral argu-
ment, the court on its own initiative questioned whether the

   26 M.R.S.A.  979-D(1) (1974) provides in part:
     [I]t shall be the obligation of the [State] and the [Union]
     to bargain collectively.  "Collective bargaining" means,
     for the purpose of this chapter, their mutual obligation:
          . . . .
               (1) To confer and negotiate in good faith with
               respect to wages, hours, working conditions and
               contract grievance arbitration, except that by
               such obligation neither party shall be compelled
               to agree to a proposal or be required to make a
               concession.  All matters relating to the relation-
               ship between the employer and employees shall be
               the subject of collective bargaining, except those
               matters which are prescribed or controlled by pub-
               lic law.  Such matters appropriate for collective
               bargaining to the extent they are not prescribed
               or controlled by public law include but are not
               limited to:
                    . . . .
                    (b)  Work schedules relating to assigned
                    hours and days of the week;
                    . . . .


Board is a proper party defendant to a Rule 80B appeal from a
decision of its own.  We considered that inquiry appropriate in
light of our recent decision in Inhabitants of Town of Boothbay
Harbor v. Russell, Me., 410 A.2d 554 (1980), in which we remanded
for dismissal a complaint brought in the Superior Court against a
municipal zoning board of appeals.  Contrary to the result reach-
ed in Boothbay Harbor, we conclude that the Maine Labor Relations
Board is authorized by the governing statutes to participate as a
party in these proceedings.  See Galloway Township Bd. of Educ. v.
Galloway Township Educ. Ass'n, 78 N.J. 25, ___, 393 A.2d 218,
222-24 (1978); Barrington School Comm. v. State Labor Relations Bd.,
___ R.I. ___, ___, 388 A.2d 1369, 1372 (1978).

          Unlike a municipal zoning board of appeals, which "is
established . . . for the purpose of hearing appeals," 39 M.R.
S.A.  4963(1) (1978), and which "has no responsibility for en-
forcement," Boothbay Harbor, supra at 560, the Board, in addi-
tion to its quasi-judicial function of adjudicating prohibited
practice complaints, 26 M.R.S.A.  979-H, and reviewing deter-
minations of bargaining units or agents, id.  979-G(2), is given
a variety of other powers by the State Employees Labor Relations
Act.[fn]4  Specifically, the Board is given two significant prosecu-
torial duties.  First, the Executive Director of the Board is

   Although this discussion is limited to a consideration of the
Board's powers as delineated in the State Employees Labor Rela-
tions Act, 26 M.R.S.A.  979 et seq., the Board also exercises
substantially equivalent powers under the Municipal Public Em-
ployees Labor Relations Law, 26 M.R.S.A.  961-974 (1974; Supp.
1979) and the University of Maine Labor Relations Act, id. 
1021-1035 (Supp. 1979).


responsible for screening complaints, and may dismiss those that
he believes fail to state a claim under the Act.  26 M.R.S.A. 
979-H(2).  Second, section 979-H(5) provides that if a party
fails to comply with an order of the Board, "then the party in
whose favor the order operates or the [B]oard may file a civil
action in the Superior Court . . . to compel compliance" (empha-
sis added).  Since any such complaint for review of a decision or
order of the Board must be consolidated with any Board-initiated
enforcement action that is pending at the same time, id., it is
reasonable to conclude that the legislature viewed the Board as
an appropriate party to the review action.

          There is good reason to accept the Board as a party in
review proceedings.  While the union and the public employer can
be expected to press their respective interests, the presence of
the Board insures that the broad public interest, which may dif-
fer from the interests of the particular public employer, will be
adequately represented.  The authority to participate in review
proceedings also goes hand in hand with other public responsibil-
ities imposed upon the Board, such as rulemaking, 26 M.R.S.A. 
979-G(1); recommending to the legislature amendments to the labor
relations statutes, id.  979-J(2); settling bargaining unit
questions and conducting representation elections, id.  979-E,
979-G(2); and assigning mediators, factfinders, and arbitrators
to resolve collective bargaining disputes, id.  979-D(2),(3),(4).


          The Board's special functions and statutory powers make
it appropriate to permit this particular governmental agency to
participate in court actions brought by others to review its
quasi-judicial decisions.  We do not, however, mean to suggest
that the Board is either a necessary or an indispensable party,
see M.R.Civ.P. 19, or that it should routinely elect to take an
active part in every review proceeding.


          We come now to the principal question raised on the
State's appeal:  Is holiday work a subject about which the State
has a duty to bargain collectively with the Union because of its
impact on the retail store clerks' wages, hours, and working
conditions?  We answer in the affirmative.

          In at least three significant respects, the holiday
operation of the state liquor stores has an impact on the clerks'
"wages, hours, [and] working conditions," which in turn are man-
datory subjects of collective bargaining.  See 26 M.R.S.A. 
979-D(1)(E), n. 3 above." First, if at least some of the clerks
must work on holidays, the Union might well desire to negotiate
for a premium rate of pay for performing such work, an issue ob-
viously involving the employees' "wages."  Second, the Union
might also desire to bargain about compensatory time off ("comp
time") for holiday work, an issue related both to "hours" and
working conditions," as well as specifically to "[w]ork sched-
ules relating to assigned hours and days of the week."  See
section 979-D(1)(E)(1)(b), n. 3 above.  Third, regardless of


what the State might, in negotiations, offer concerning premium
pay and "comp time," the Union might take the negotiating posi-
tion that the clerks should not be required to work at all on
some or all holidays; both "hours" and 'working conditions' are
implicated in requiring employees to work at all on holidays that
they may wish to celebrate for religious, patriotic or family

          The Board ordered the State to "cease opening" its li-
quor stores on holidays without first "negotiating such proposed
openings" with the Union.  From the discussion contained in the
Board's written decision, it is clear to us, as it was to the
Superior Court in affirming the Board's order, that the Board
meant to limit the scope of its bargaining order to the impact
of holiday openings on the retail store clerks' wages, hours,
and working conditions.  We therefore construe the above-quoted
language as referring only to negotiations about impact of the
openings on those mandatory subjects of collective bargaining.
Under the power granted the Superior Court and this court by 26
M.R.S.A.  979-H(7) (Supp. 1979),  6 (1974), we for clarification
modify the language of the order in accordance with our reading
of the Board's intent; and then we affirm that order as so modi-

          In declaring holiday work to be a subject within the
scope of mandatory bargaining, the Board relied--and properly
so--on Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676
(1965), in which the United States Supreme Court held that


     the particular hours of the day and the particular days
     of the week during which employees shall be required to
     work are subjects well within the realm of "wages, hours,
     and other terms and conditions of employment" about which
     employers and unions must bargain.

Id. at 691.  See Singer Mfg. Co. v. NLRB, 119 F.2d 131, 136 (7th
Cir. 1941).  In applying the terms of our state labor relations
laws, this court has previously found "persuasive" the construc-
tion placed on the National Labor Relations Act by federal courts,
Churchill v. School Administrative Dist. No. 49 Teachers Ass'n,
Me., 380 A.2d 186, 192 (1977); Lewiston Firefighters Ass'n v.
City of Lewiston, Me., 354 A.2d 154, 164 (1976), particularly
where provisions of the state law analogous to those of the fed-
eral law were involved, Caribou School Dept. v. Caribou Teachers
Ass'n, Me., 402 A.2d 1279, 1283 (1979).  Furthermore, the con-
struction placed on the statute by the Board, as the agency
charged with its enforcement, should be accorded considerable
deference" by a reviewing court.  Ford Motor Co. v. NLRB, 441
U.S. ___, ___ (1979).  Cf. In re O'Donnell's Express, Me., 260
A.2d 539 (1970) (construction placed on motor carriers statute by
Public Utilities Commission).

          The State nevertheless urges this court to declare that
certain subjects--such as the days of operation of state agencies--
are exempted from the duty to bargain because they remain the
inherent prerogative of state government to determine solely as
a matter of public policy, unfettered by pressures from employee
bargaining agents.  The legislature, however, rejected just such
a proposed 'management prerogative" exception when it was con-


sidering the original enactment of the State Employees Labor Re-
lations Act in 1974.  See 1974 Leg.Rec. 1829 (remarks of Sen.
Haskell), 1830 (remarks of Sen. Tanous), 1832 (remarks of Sen.
Brennan), 1835 (Senate Amendment "All to L.D. 2314 indefinitely
postponed by a 17-10 vote).  As a consequence, there is nothing
in the Act in any way comparable to the "educational policies"
exception found in the Municipal Public Employees Labor Relations
Law, see 26 M.R.S.A.  965(1)(C) (1974).[fn]5  Thus the State's
reliance on cases decided under that exception, see, e.g., City
of Biddeford v. Biddeford Teachers Ass'n, Me., 304 A.2d 387 (1973),
or counterpart provisions in the laws of other jurisdictions, is
entirely misplaced.  To read into the Act an implied "management
prerogative" exception, as is urged upon us by the State, would
be to disregard pro tanto the express legislative intent to pro-
mote in the public sector 'collective bargaining for terms and
conditions of employment."  See 26 M.R.S.A.  979 (1974).

          Having correctly determined that a duty to bargain col-
lectively with the Union about holiday work could, and in this
case did, arise, the Board went on to decide that the State vi-
olated that duty by requiring the retail store clerks, contrary
to a longstanding employment practice, to work on Washington's
Birthday in 1978--while the Union's proposals concerning holiday
work were on the bargaining table and negotiations were in pro-
gress, and even after the Union had asked the State not to open
the stores that day.  We agree that such conduct was a violation

   26 M.R.S.A.  965(1)(C) (1974) provides that "public employers
of teachers shall meet and consult but not negotiate with respect
to educational policies."


of the State's duty to bargain in good faith, 26 M.R.S.A.  979-C
(1)(E).  In NLRB v. Katz, 369 U.S. 736 (1962), the Supreme Court
affirmed the principle that under the federal counterpart of sec-
tion 979-C(1)(E), an employer's unilateral change in conditions
of employment then under negotiation is a clear violation of the
duty to bargain in good faith because it tends to undermine the
bargaining process, in contravention of the public policy express-
ed in the labor act.  The considerations involved in Katz are
fully applicable to public sector labor relations, as the Board
and the Superior Court below and the courts in many other juris-
dictions have recognized.  E.g., Southern Worcester County Region-
al Vocational School Dist. v. Labor Relations Comm'n, ___ Mass.
___, 389 N.E.2d 389 (1979); Detroit Police officers Ass'n v. City
of Detroit, 391 Mich. 44, 214 N.W.2d 803 (1974); West Hartford
Educ. Ass'n v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972).
Any implication from the Union's conduct that it waived its pro-
posal to bargain over the issue of holiday work is refuted by its
oral request prior to February 20, 1978, that the State keep the
stores closed on that day.  The Board's factual rejection of the
State's waiver contention was not "clearly erroneous."  See 26
M.R.S.A.  979-H(7) (Supp. 1979).

          Finally, we reject the State's argument that the subject
of holiday work is excepted from the duty to bargain because the
matter is "prescribed or controlled by public law," 26 M.R.S.A.
 979-D(l)(E), n. 3 above.  The obvious purpose of that ex-
ception is merely to "prevent . . . a term of a collective bar-


gaining agreement from being in violation of existing law."
Pennsylvania Labor Relations Board v. State College Area School
Dist., 461 Pa. 494, ___, 337 A-2d 262, 269 (1975).  The 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.  The statute
that the State claims "prescribes" or "controls" holiday store
opening, 28 M.R.S.A.  154 (Supp. 1979),[fn]6 does not support that
claim.  Rather, it provides a perfect illustration of the dis-
tinction between what is excluded from collective bargaining by
the "prescribed or controlled" exception and what is not.  Sec-
tion 154 contains a positive directive that state liquor stores
may be open only between 9 a.m. and midnight.  Collective bar-
gaining that would have the effect of extending business hours
beyond those statutorily prescribed limits is prohibited.  On
the other hand, section 154 also spells out the general power
the manager of any store must have in deciding when to open for
business; that power, along with those with which the state
liquor commission is invested by id.  53(7) (power to "sell at
retail in state stores") and id.  151 (power to lease facilities

   28 M.R.S.A.  154 (Supp. 1979) provides in part:
          State retail liquor stores and state agency stores may
     be open for the sale and delivery of liquor between the hours
     of 9 a.m. and midnight in municipalities and unincorporated
     places which have voted affirmatively on section 101, sub-
     section 1.  The State Liquor Commission shall establish the
     hours of operation of each state retail liquor store and
     state agency store.


for the sale of liquor), must be exercised within the environ-
ment of collective bargaining as to "wages, hours, [and] work-
ing conditions."  That portion of section 154 contains no stat-
utory directive that would be violated by permitting collective
bargaining to proceed in its normal course.  "The mere fact that
the (legislature] granted the prerogative [to set business hours)
to the employer does not exclude the possibility that the deci-
sion to exercise that prerogative was influenced by the collec-
tive bargaining process."  Pennsylvania Labor Relations Board v.
State College Area School Dist., supra at ___, 337 A.2d at 269.
As the New York Court of Appeals said in Board of Education v.
Associated Teachers of Huntington, 30 N.Y.2d 122, 129, 282 N.E.2d
109, 113, 331 N.Y.S.2d 17, 23 (1972), "there is no reason why the
mandatory provision [for collective bargaining] should be limited,
in any way, except in cases where some other applicable statutory
provision explicitly and definitively prohibits the public employ-
er from making an agreement as to a particular term or condition
of employment."

          In sum, we affirm the Board's ruling that the State may
not modify its prior practice of closing state liquor stores on
holidays without first negotiating with the Union the conse-
quences of that change upon the wages, hours, and working con-
ditions of the employees working in those stores.

          The entry will be:


                                  Appeal denied.

                                  Judgment affirmed.

                                  On remand the Superior Court shall
                                  enter the following judgment:  En-
                                  forcement ordered of the Maine Labor
                                  Relations Board's decision, modified
                                  for purposes of clarification, as
                                    That the State of Maine and the
                                    Bureau of Alcoholic Beverages,
                                    Department of Finance and Adminis-
                                    tration, cease opening state li-
                                    quor stores on days designated
                                    state holidays by the Commissioner
                                    of the State of Maine Department
                                    of Personnel without negotiating
                                    the impact of such proposed open-
                                    ings upon the wages, hours, and
                                    working conditions of the state
                                    liquor store employees, with their
                                    collective bargaining agent(s).

All concurring.