State of Maine v. MSEA et al., 499 A.2d 1228 (Me. 1985), vacating 
State of Maine v. MSEA and MLRB, CV-83-09 and reversing No. 82-05 on waiver issue.

MAINE SUPREME JUDICIAL COURT                  Reporter of Decisions
                                              Decision No. 3953
                                              Law Docket No. Ken-83-291

                              STATE OF MAINE



                          Argued March 13, 1984
                         Decided October 29, 1985



     The Maine Labor Relations Board ordered the State of Maine
to cease and desist from refusing to bargain collectively with
the Maine State Employees Association over the impact of certain
management decisions upon employees' wages, hours and working
conditions.  Both the State and the union sought direct judicial
review by the Superior Court, Kennebec County, pursuant to 26
M.R.S.A. Sec. 979-H(7) (Supp. 1984), 5 M.R.S.A. S 11002 (1979) and
M.R. Civ. P. 80C.  Upon the entry of a judgment substantially
affirming the Board, both parties appealed to this Court.  Because
we determine that the union waived the right to bargain over the
impact of the organizational changes at issue, we vacate the
Superior Court judgment and remand with instructions to reverse
the Board's decision on the issue of waiver.


     At all times relevant to this appeal the State, as the
public employer under 26 M.R.S.A. Sec. 979-A(5) (Supp. 1984), and
the union, as the certified bargaining agent for all of the


affected employees, were parties to a collective bargaining
agreement.[fn]1  During the term of this contract, the union became
aware through its members that the State was planning to reorganize
three of its agencies:  the Department of Environmental Protection,
the Department of Human Services and the Board of Cosmetology.
First, the State planned to create a new division within the DEP,
to be known as the Bureau of Oil and Hazardous Materials Control,
with expanded responsibilities for the regulation and inspection
of hazardous and toxic materials.  Second, the State proposed a
reorganization of the Bureau of Social and Rehabilitative Services
within the DHS that would involve reclassifying certain employees
known as Human Services Workers and Human Services Managers,
upgrading their minimum qualifications and adjusting their respective
pay scales.  Third, the Board of Cosmetology decided to reorganize.
the delivery of its inspection services by reducing the number
of inspectors from three to two and by relocating its two branch

     Upon learning of each of these reorganization schemes,
the union presented the State with specific bargaining proposals
that were designed to alleviate the impact of the changes on the
wages, hours and working conditions of the affected employees.
In each instance, after initial meetings between representatives
of both sides, the State refused to bargain on the grounds that

     1 There are actually two collective bargaining agreements
involved in this case but because they are identical in all
pertinent respects, we treat them as one.


its actions were entirely in accordance with, and governed by,
the existing collective bargaining agreement.

     The union filed a prohibited practices complaint with the
Maine Labor Relations Board, alleging unlawful interference
in violation of 26 M.R.S.A. Sec. 979-C(1)(A) (1974), and violation of
the duty to bargain set forth in 26 M.R.S.A. Sec. 979-D(1)(B) (1974).
In response to these allegations, the State conceded that the
reorganization of the three agencies involved unilateral changes
in the terms and conditions of employment that are mandatory
subjects of bargaining under the State Employees Labor Relations
Act.  See 26 M.R.S.A. Sec. 979-D(1)(E)(1) (1974).  The key issue
presented to the Board was whether the State's duty to bargain
had nonetheless been waived by the express provisions of the
governing collective bargaining agreement.  The dispute focused,
in particular, on construction of the Conclusion of Negotiations
Article, or "zipper clause," by which each party agreed not to
attempt to compel mid-term negotiations over matters that:  (a)
could have been raised during pre-agreement negotiations, (b)
were raised and rejected at that time, or (c) were specifically
addressed in the agreement itself.

     After receiving testimony and briefs on the pertinent issues,[fn]2
the Board ruled that by agreeing to the zipper clause the union
had waived its right to compel bargaining over the State's
reorganization plans because those changes were authorized by and,

     2 No testimony was offered concerning negotiations that
preceded the collective bargaining agreement.


therefore, specifically addressed in, the Management Rights Article
of the agreement.[fn]3  In resolving whether the right to bargain
over the impact of those changes had likewise been waived, the
Board analyzed each individual bargaining proposal and considered
whether it was "specifically addressed" in any provision of the
contract.  Ultimately, the Board concluded that the State had an
obligation to bargain over nine of the twenty-two union proposals.

     The parties entered separate complaints later consolidated
in the Superior Court, seeking reversal of those portions of the
Board's decision that were adverse to them.  The Superior Court
substantially affirmed the Board's decision, reversing only
with respect to two of the union's demands that the court concluded
had been waived under the existing contract.


     In this case we are concerned with an unfair labor practice
charge, not a contract violation subject to grievance arbitration.
The MLRB has jurisdictions over the former, but not the latter.
Nevertheless, the MLRB, in the first instance, and this Court,

     3 The Management Rights Article expressly reserves to the State
the exclusive right to manage its operations, including but
not limited to:

     [T]he right to determine the mission, location and
     size of all its agencies and facilities; the right
     to direct its work force; ... to establish specifications
     for each class of positions and to classify or reclassify
     and to allocate or reallocate new or existing positions
     in accordance with the law; ... to determine the size
     and composition of the work force; ... [and] to install
     new, changed or improved methods of operations.


ultimately, must interpret the provisions of the contract in
determining refusal to bargain vel non.  This is so because
section 979-D(1)(B) imposes a duty to bargain "provided the
parties have not otherwise agreed in a prior written contract."
In the circumstances of the instant case, the applicability of
the proviso must be determined solely by perusal of the collective
bargaining agreement itself.

     In State v. MLRB, 413 A.2d 510 (Me. 1980), we affirmed the
Board's order to negotiate the impact of holiday openings of
liquor stores.  We upheld the Board's rejection of the State's
waiver defense as not clearly erroneous.  The waiver discussed in
that case was allegedly raised by implication from the MSEA's
conduct, rather than by the express terms of the bargaining

     In City of Bangor v. AFSCME, 449 A.2d 1129 (Me. 1982), we
again affirmed the Board's finding of an unfair labor practice in
refusing to bargain over the impact of a unilateral managerial
decision to discharge.  We also affirmed the Board's determination
that the union had waived the right to bargain over a discharge
but not the right to bargain over the effects of that discharge.
The collective bargaining agreement at issue provided that the
parties each "voluntarily and unqualifiedly waives the right, and
each agrees that the other shall not be obligated to negotiate
with respect to any subject or matter referred to or covered in
this agreement...."  Discharge for just cause was covered in the
agreement; the effect (impact) of discharge was not.

     Neither of these decisions control the case before us because
the bargaining agreements did not contain any language which
could be construed as a waiver of impact bargaining.  The present
contract, however, at Article LVIII provides:

          A.  The State and MSEA agree that this Agreement
     is the entire Agreement, terminates all prior Agreements
     or understandings and concludes all collective negotiations
     during its term.  Neither party will during the term
     of this Agreement seek to unilaterally modify its
     terms through legislation or other means which may
     be available to them.

          B.   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 the
     negotiations that preceded this Agreement, matters
     that were raised during the negotiations that preceded
     this Agreement or matters that are specifically addressed
     in the Agreement.

(Emphasis added.)  Although we agree with the Board that para-
graph A is meant to be an integration clause, the language of
paragraph B is clearly broader than that in City of Bangor, and
serves as a waiver of impact bargaining over the organizational
changes expressly permitted under the Management Rights Article.

     The leading case of NLRB v. Southern Materials Co., 447
F.2d 15 (4th Cir. 1971), is instructive.  There, the employer
had discontinued paying a Christmas Bonus (not expressly covered
in the contract).  The NLRB determined that the union had the
right to negotiate over Christmas bonuses despite the waiver
language of a "zipper clause" that covered "any subject matter
referred to or covered in" the contract as well as "any subject
matter not specifically referred to as covered in" the contract.

     The court reversed the NLRB, distinguishing such cases
as General Electric Co. v. NLRB, 414 F.2d 918 (4th Cir. 1969)


and Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963)
because they dealt with waiver by implication.  The Southern
Materials court determined that mid-term negotiations had been
waived regardless whether the bonuses were included within a
maintenance of benefits provision of the contract.  Had bonuses
not been included, 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.

     Although it does not discuss Southern Materials, MSEA attempts
to distinguish the more recent cases of NLRB v. Auto Crane Co. ,
536 F.2d 310 (10th Cir. 1976) and Aeronca, Inc. v. NLRB, 650
F.2d 501 (4th Cir. 1981).  In Auto Crane the employer made a
unilateral increase in wages, and in Aeronca the employer ceased
distribution of Christmas turkeys.  The contract language in
those two cases, although similar to that in Southern Materials,
adds the additional language "even though such subjects or matters
may not have been within the knowledge or contemplation of either
or both parties at the time they negotiated or signed this Agree-
ment."  In each case the Court held that the NLRB erred in finding
no waiver of mid-term negotiations, and enforcement of the Board's
order was denied.

     The MSEA contends that the zipper clauses in those cases were
much broader than the zipper clause in the case before us.
Neither the Aeronca court nor the Auto Crane court suggested,


however, that the additional language about matters not contemplated
added anything to the waiver.  Both courts simply relied upon
Southern Materials.  Moreover, we do not accept MSEA's contention
that the waiver clause before us is not as broad as those in the
three federal cases.

     MSEA also argues that its case is distinguished by the
presence in the contract of Article LV,  Maintenance of Benefits.
Article LV provides as follows:

          With respect to negotiable wages, hours and working
     conditions not covered by this Agreement, the State
     agrees to make no changes without appropriate prior
     consultation and negotiations with the Association
     unless such change is made to comply with law, and
     existing regulations, Personnel Rules, written Policies
     and Procedures, General Orders, General Operating
     Procedure, or Standard Operating Procedure.

The union cites a specific reference to the absence of such
an article in Aeronca and a comment in Auto Crane that the employer
had no right to act unilaterally in the first place.  The MSEA's
argument misses the point.  A violation of the maintenance clause
would invoke contract grievance rather than labor board action.
A contractual and a statutory obligation to bargain may exist
independently and may differ in content.  Cf. Lewiston Firefighters
Association v. City of Lewiston, 354 A.2d 154, 168 (Me. 1976) (a
contractual and a statutory right to parity pay are of independent
origin and enforceable in different forums).  In the context of
municipal labor relations, we have stated that the Legislature
recognized arbitration as the "desirable method' for resolving
contract disputes.  Id. at 166.


     In short, the Southern Materials decision, although not
binding on us, is persuasive.  The zipper clause in that case was
no broader than the one before us.  The MLRB heard no evidence of
negotiating history that might affect the contract provisions.
In the instant case, the State's unilateral action was specifically
permitted under the contract.  The statutory duty to negotiate
over the impact of such decisions could have been preserved in the
contract.  That statutory obligation was waived.

     The State argued to the Board that impact bargaining could
have been raised during negotiations.  The Board disposed of
the State's argument on the ground that it rests on the erroneous
inference "that failure to mention impact bargaining in the
contract sections authorizing the changes herein is equivalent to
a waiver of bargaining over the effect of those changes."  The
Board's opinion in this respect completely ignores the specific
language of Article LVIII(B) waiving mid-term negotiations on
"matters that could have been raised during negotiations."
Moreover, the Board says that the State's argument was specifically
addressed in City of Bangor.  As we stated, the zipper clause
in City of Bangor addressed only matters covered by the contract.

     Next, we turn to the "sword-shield" analogy used by MLRB
to describe "the proper balancing approach."  The Board quotes
an NLRB General Counsel Memorandum to the effect that zipper
clauses may be used as a "shield" against mid-term negotiations
but not as a "sword" to give the employer unfettered power to
change terms and conditions of employment not contained in the


contract.  First, there is no need for a balancing test.  Unques-
tionably, the parties may contractually waive the right to any
mid-term negotiations.  We need not engage in balancing policy
interests when a contractual analysis leads unequivocally to a
finding of waiver.

     Second, the "sword-shield" approach is clearly inconsistent
with Southern Materials, Auto Crane and Aeronca because each
of those cases involved a union demand that the employer negotiate
over unilateral changes of wages or conditions of employment
during the term of the contract.  MSEA's argument that the impact
of the unilateral changes in the case before us could not have
been raised during negotiations because the exact nature of
future changes was then unknown is specious.  Changes were antic-
ipated pursuant to Article LVI of the collective bargaining
agreement, and the statutory right to impact negotiations could
have been preserved in the contract.  The union may also waive
that right, subject to the requirement that it do so by "clear
and unmistakable language."  See General Electric Co. v. NLRB,
414 F.2d 918, 923 (4th -Cir. 1969).  Article LVIII(B) contains
just such language.

     Moreover, the MLRB opinion says, "[we] do not cite the [General
Counsel's Memorandum] as persuasive authority; however, we believe
that it accurately reflects the present state of federal labor
relations law in connection with the status and use of 'zipper
clauses'."  Our review of state court opinions discloses no
persuasive support for the application of a "sword-shield" analysis


in the circumstances before us.  To do so would effectively
negate an otherwise valid contractual provision.  If there is
a sound policy basis for restricting or eliminating the right
to bargain for a waiver of mid-term negotiations over the impact
of agreed upon unilateral employer actions, then that policy
should be reflected in legislation.  There is no basis in the
State Employees Labor Relations Act for the MLRB to intrude on
policy grounds.  Section 979-D(1)(B) of the act specifically
provides that the parties may alter the statutory duty to engage
in collective bargaining.  We decide in this case that the statutory
right to compel mid-term negotiations over the impact of these
unilateral employer actions can be and has been waived by the
clear and unmistakable language of Article LVIII(B).

     The entry is:

                                  Judgment vacated.

                                  Remanded to the Superior Court
                                  with direction to vacate the
                                  order of the Maine Labor
                                  Relations Board.

All concurring.