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)

MAINE SUPREME JUDICIAL CCURT                 Reporter of Decisions
                                             Decision No. 4015
                                             Law Docket No. Ken-85-291




                          Argued January 8, 1986      
                          Decided Januarv 31, 1986  



     The defendant, Maine State Employees Association (the Union),
the certified bargaining unit for game wardens employed by the
plaintiff, Maine Department of Inland Fisheries and Wildlife (the
Department),[fn1] appeals a judgment of the Superior Court (Kennebec
County) vacating the Maine Labor Relations Board's (the Board)
order that the Department cease and desist from unilaterally
changing any aspect of the game wardens' wages, hours and working
conditions and immediately reinstate the practice of allowing
game wardens to use State vehicles for personal, non-commercial
purposes pursuant to the collective bargaining agreement.    The

     1 Before both the Board and the Superior Court, the State of
Maine and the Maine Department of Inland Fisheries and Wildlife
were joined as parties, first as respondents in the prohibited
practice proceeding held pursuant to 26 M.R.S.A. Sec. 979-H(2)
(Supp. 1985-1986) and then as Rule 80B plaintiffs in the Superior
Court.  In this opinion, the term "the Department" refers col-
lectively to both the State of Maine and the Department of Inland
Fisheries and Wildlife.

     The Union and the Maine Labor Relations Board were joined as
defendants in the Superior Court.  Only the Union appealed the
judgment of the Superior Court.  Accordingly, the Board is not a
party to this appeal.  Cf. State v. Maine Labor Relations Bd.,
413 A.2d 510, 512-13 Me. 1980).

                                 -1-                                                                                      2

Union challenges the Superior Court's conclusion that by the
enactment of 12 M.R.S.A. Sec. 7036(6) (Supp. 1985-1986), the Legislature
placed a specific prohibition on the personal use of State vehicles
by game wardens, thus removing the negotiated vehicle use policy
from the requirement of collective bargaining.  We affirm the

     The facts are undisputed. The Department's refusal to
bargain occurred during ongoing negotiations between the State
and the Union concerning successor agreements to the 1982-1983
collective bargaining agreements that had expired on June 30,
1983.  The lapsed agreements allowed certain law enforcement and
supervisory personnel, including game wardens, to use State
vehicles for personal purposes whether or not on scheduled duty-
status.[fn2]  In September, 1983, the Legislature enacted a statute

     2 Relevant provisions of the 1982-1983 collective bargaining
agreement provide:

               3.  Use of vehicles while on duty status:
               (a) members of the bargaining unit,
           while on duty, are authorized to transport
           members of their immediate family within
           their assigned area.
               (b) Members of the bargaining unit may
           use their assigned motor vehicles for personal
           errands within their assigned area while on duty.
               (c) Transportation, while on duty, for a
           member of his/her immediate family, beyond
           the member's assigned area or station, shall
           require prior permission from his/her immediate
               4. Use of vehicle when not on scheduled
           duty status:
               (a) No State vehicle shall be used
           outside a member's assigned area when the
           member is not on scheduled duty status without
           prior approval from the appropriate appointing
           official or his/her designee.

to provide additional revenue to the Department.  See 1983 Me.
Laws ch. 588.  Part of that Act provides:  "No employee may use
any department equipment or vehicles for other than official
business."  1983 Me. Laws ch. 588, Sec. 4 (codified at 12 M.R.S.A. 
7036(6) (Supp. 1985-1986)).  Game wardens were advised that as of
January 1, 1984, the effective date of the statute, the use of
any Department equipment or vehicle for other than official
business was unlawful.  The above policy was implemented on
January 1, 1984. Notwithstanding the passage and policy implemen-
tation of section 7036(6), negotiations between the State and the
Union resulted in a collective bargaining agreement, effective
September 11, 1984, that retained without change the vehicle use
policy as articulated in the 1982-1983 agreement.

     In response to a prohibited practice complaint filed by the
Union on June 29, 1985, the Department admitted that it unilaterally
changed the negotiated vehicle use policy without bargaining but
defended its action by asserting that because of the enactment of

               (b) Whenever a State vehicle is used by
          a member during non-duty status, the member
          must assume an "on duty" status for communication
          and operational purposes.
               (c) Expenses incurred for gasoline, oil
          and other costs as the result of using a
          State vehicle under this section 4 shall be
          borne by the member involved.
               (d) The use of State vehicles within the
          provisions of this section 4 shall be restricted
          to occasions that involve necessary personal
          business or emergencies.  Such use shall be
          kept at an absolute minimum.

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


section 7036(6), the matter was "prescribed or controlled by
public law," 26 M.R.S.A.  979-D(1)(E)(1) (Supp. 1985-1986), and
thus exempt from collective bargaining.  Acting on the complaint
the Board ruled in favor of the Union.  The Board reasoned that
since the Legislature used an ambiguous term, 'official business,'
and did not expressly prohibit the motor vehicle use provided for
in the collective bargaining agreement, section 7036(6) did not
remove the negotiated vehicle use policy from mandatory collective
bargaining.  Pursuant to 26 M.R.S.A.  979-H(7) (Supp. 1985-1986)
And Rule 80B of the Maine Rules of Civil Procedure, the Department
sought review in the Superior Court.  That court held that section
7036(6) plainly prohibited the sort of personal use of Department
vehicles contemplated by the collective bargaining agreement and-
vacated the Board's order.  The Union's timely appeal followed.

     While the Maine State Employees Labor Relations Act imposes
a broad obligation on a public employer and the respective bargaining
agent to bargain as to all matters relating to the relationship
between the employer and employee, the Legislature recognized
that collective bargaining with respect to particular matters
might not always be appropriate.  The Act explicitly excepts from
the requirement of collective bargaining "those matters which are
prescribed or controlled by public law." 26 M.R.S.A.  979-D(1)(E)
(1).[fn3]  The exception prohibits the parties from negotiating an

     3 Title 26 M.R.S.A.  979-D(1)(E)(1) provides:

           [I]t shall be the obligation of the public
           employer and the bargaining agent to bargain
           collectively.  "Collective bargaining" means,


agreement where a statutory provision "'explicitly and definitively
prohibits the public employer from making an agreement as to a
particular term or condition of employment."  State v. Maine
Labor Relations Bd., 413 A.2d 510, 515-16 (Me. 1980) (quoting
Board of Education v. Associated Teachers of Huntington, 30
N.Y.2d. 122,129,331 N.Y.S.2d. 17,23, 282 N.E.2d. 109,113 (1972)).
The critical question is whether section 7036(6) explicitly and,
definitively prohibits collective bargaining that would have the
effect of allowing game wardens to use Department vehicles for
personal use.[fn4]  We conclude that it does.

          for the purpose of this chapter, their mutual

          (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 relationship between the
          employer and employees shall be the subject
          of collective bargaining, except those matters
          which are prescribed or controlled by public
          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:

     4 The construction of section 7036(6) is a question of law
for this Court.  Since the Board is not charged with enforcing
section 7036(6), no deference is accorded to the Board.  Cf.
State v. Maine Labor Relations Bd., 413 A.2d at 514.  Similarly,
no deference is accorded to the Superior Court because it functioned
as an intermediate appellate court undertaking judicial review of
an administrative record, without evidentiary hearings.  See

                                  -5-                                                                                    6

     Section 7036(6) provides that Department employees may not
use Department equipment or vehicles "for other than official
business."  Although the term "official business" is not defined
by the statute, its meaning is clear and unambiguous.[fn5]  It means
that employees can only use the vehicles while carrying out the
duties for which they were hired.  This necessarily excludes the
use of Department vehicles by Department employees for personal
purposes, regardless of whether the employee is on duty or on
non-duty status.  As the parties implicitly recognize, the natural
and common antonym of "official business" is "personal business."
Therefore, the Department did not engage in an unfair labor
practice because section 979-D(1)(E)(1) expressly excepts from
the  requirement of collective bargaining the personal use of
Department vehicles by game wardens as a matter prescribed or
controlled by 12 M.R.S.A.  7036(6).

     Our interpretation of section 7036(6) is unaffected by the
fact that following its enactment and the resulting change in policy
instituted by the Department on January 1, 1984, the Executive
Branch of the State and the Union entered into a successor collective
bargaining agreement that contained vehicle use language unchanged
from the 1982-1983 agreement.  It also cannot be successfully

Council 74 AFSCME v. Maine State Emp. Ass'n, 476 A.2d 699,703
(Me. 1984).

     5 Since the meaning of the term "official business" as used in
section 7036(6) is clear, it is unnecessary to resort to rules
of statutory construction.  See Perry v. Hartford Acc. and Indem.
Co., 481 A.2d 133,138 (Me. 1984); Robbins v. Foley, 469 A.2d
840,842-43 (Me. 1983).


argued that the Legislature's appropriation of funds to cover
various collective bargaining agreements constituted either a
repeal of section 7036(6) or a ratification of the terms of the
collective bargaining contract.  It is unrealistic to infer that
by funding and implementing the collective bargaining agreement
applicable to all law enforcement divisions and supervisory
personnel, the Legislature intended to repeal the plain meaning
of section 7036(6) and 26 M.R.S.A.  979-D(1)(E)(1).

     Accordingly, we conclude that the Department did not engage
in an unfair labor practice when it unilaterally altered the
policy of allowing game wardens to use Department vehicles for
personal purposes.

     The entry is:

                    Judgment affirmed.
All concurring.