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

MAINE SUPREME JUDICIAL COURT                     Reporter of Decisions
                                                 Decision No. 4668
                                                 Law Docket No. Ken-87-44

                                 STATE OF MAINE


                    MAINE STATE EMPLOYEES ASSOCIATION et al.

                            Argued September 2, 1987
                            Decided February 23, 1988



     The Maine State Employees Association (the Union), as the
certified bargaining unit for employees emploved by the State of
Maine, appeals a judgment of the Superior Court (Kennebec County)
vacating the order of the Maine Labor Relations Board (the Board)
that the State cease and desist from failing and refusing to
negotiate about retirement benefits proposals.  The Union challenges
the Superior Court's conclusion that by enactment of the retirement
law, which sets out by number employee retirement benefits and
eligibility requirements, the Legislature removed retirement
issues from the ambit of collective bargaining.  We affirm the


     In December, 1982, the State and the Union began bargaining
for collective agreements to succeed those scheduled to expire on
June 30, 1983.  During negotiations the Union proposed four new
retirement benefits standards.  The first two proposals sought to
amend retirement plans for two groups of employees by creating
eligibility for retirement benefits after twenty (20) years of
state service, instead of after twenty-five (25) years as then

                                 -1-                                                                             2

required by 5 M.R.S.A.  1121 (Supp. 1985).[fn]1  The third proposal
sought to change the basis of determining survival benefits from
fixed dollar amounts set by 5 M.R.S.A.  1124(1)(B)(1) to a rate
based on the employee's average final compensation and years of
State service.  The final proposal was to allow the purchase of
military service credits after ten (10) years of service instead
of fifteen (15) years. as reguired by 5 M.R.S.A.  1094 (13)(A).
The parties held a number of bargaining sessions and then resorted
to the impasse resolution procedures set forth in 26 M.R.S.A.

     On December 23, 1983, the Union filed a prohibited practice
complaint alleging that the State had violated 26 M.R.S.A.
 979-C(l)(A) and (E) (1973)[fn]2 by refusing to bargain about the
retirement proposals.  The State answered and counterclaimed
alleging that it was not obliged to bargain because the proposals
were prescribed or controlled by statute and asserting that the

     1 References herein to the laws governing the Maine State
Retirement Svstem are to the 1985-86 Supplement to the Maine
Revised Statutes Annotated, on which the Board relied in making
its decision.

     2 26 M.R.S.A.  979-C(1)(A) and (E) provide:

           1. The public employer, its representatives and
      agents are prohibited from:

                A. interfering with, restraining or
           coercing employees in the exercise of rights
           guaranteed in section 979-B;

                . . . .

                E. Refusing to bargain collectively with
           the bargaining agent of its employees as
           required by section 979-D.

                                 -2-                                                3

Union had violated section 979-C(2) (B) by insisting to impasse
that the State bargain about the retirement proposals.[fn]3  The
precise issue presented to the Board was whether within the
meaning of section 979-D(1)(E)(1)[fn]4 the Union's retirement proposals
were mandatory or exempt subjects of bargaining.  The Board
recognized that if the proposals were not mandatory subjects, the
Union violated the duty to bargain by insisting on negotiating

     3 26 M.R.S.A.  979-C(2)(B) provides:

           2. State employees, State employee organizations,
       their agents, members and bargaining agents are prohibited

            . . . .

                 B.  Refusing to bargain with the public
            employer as required by section 979-D.

The State did not seek review by the Superior Court of the Board's
implicit denial of the State's counterclaim.

     4 26 M.R.S.A.  979-D(1)(E)(1) provides in pertinent part:

           1. On or after January 1, 1975, it shall be the
       obligation of the public employer and the bargaining
       agent to bargain collectively.  "Collective bargaining"
       means  . . . their mutual obligation:

           . . . .

           E.(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. . . .

                                 -3-                                             4

about them to the point of impasse.  Alternatively, if the Union's
proposals were mandatory subjects, the State violated the statutory
duty by failing and refusing to negotiate about them.  In determining
that the Union's proposals were mandatory subjects of bargaining,
the Board primarily relied on the scope of the arbitrator's
authority as prescribed by the provisions of 26 M.R.S.A.
 979-D(4)(C)(3)-(4) and  979-D(4)(D).[fn]5  The Board reasoned that
because those sections expressed the clear intent of the Act that
the subject cf "pensions" could be bargained to impasse, be

     5 26 M.R.S.A.  979-D(4)(C)(3) provides:

     C. In reaching a decision . . . the arbitrator shall
     consider the following factors:

          . . . .

          (3) The over-all compensation presently
          received by the employees including direct
          wage compensation, vacation, holidays and
          excused time, insurance and pensions, medical
          and hospitalization benefits, the continuity
          and stability of employment, and all other
          benefits received;
          (4) Such other factors not confined to the
          foregoing, which are normally and traditionally
          taken into consideration in the determination
          of wages, hours and working conditions through
          voluntary collective bargaining, mediation,
          fact-finding, arbitration or otherwise between
          the parties, in the public service or in
          private employment, including the average
          consumer price index.

Section 979-D(4)(D) provides:

     D. With respect to controversies over salaries, pensions
     and insurance, the arbitrator will recommend terms of
     settlement and may make findings of fact.  Such recom-
     mendations and findings shall be advisory and shall not
     be binding upon the parties.  The determination of the
     arbitrator on all other issues shall be final and
     binding on the parties.


discussed through fact finding and be an issue in interest arbi-
tration, the proposals must be mandatory subjects of bargaining
within the meaning of section 979-D(1)(E)(1).  Accordingly,
the Board ordered the State to cease and desist from failing and
refusing to negotiate about the proposals made by the Union.

     Pursuant to 26 M.R.S.A.  979-H(7) (Supp. 1987) and M.R.
Civ. P. 80C, the State sought review by the Superior Court of the
Board's decision.   The Superior Court held that all the Union's
proposals related to specific numbers established in the retirement
statutes and were, therefore, "prescribed or controlled by public
law" within the express preclusion provision of 26 M.R.S.A.
 979-D(1)(E)(1) and were not bargainable.  From the court's order
vacating the decision of the Board, the Union appeals.


     The single issue presented by this appeal is whether the
Union's proposals are removed from collective bargaining because
"prescribed or controlled by public law" as set forth in the
statutes governing retirement.  When, as here, the review of the
superior court is confined to the record before the Board, we
exam ine that same record to determine any issue presented on

     In the first instance we notice that this case involves a
controversy about negotiations leading to a 1983 collective
bargaining agreement which has been superseded by a separate and
independent collective bargaining agreement.  Further, some of
the involved statutes have been recodified and revised.  We have


previously stated that controversies which are capable of repetition
and do not easily lend themselves to final judicial review as
they arise may be addressed, even if moot, if the controversy
continues between the parties or is highly likely to arise again.
See Lynch v. Town of Kittery, 473 A.2d 1277, 1279 (Me. 1984);
State v. Gleason, 404 A.2d 573, 578 (Me. 1979).  In this case
there can be no doubt that the controversy between the State and
the Union regarding the bargainability of these issues is either
a continuing one or highly likely to arise again.  The relatively
short time in which bargaining is normally attempted as compared
to the relatively long time required for a controversy to be
processed by the Board and reviewed by the court makes it unlikely
that judicial review can be effected before the controversy
becomes moot.  Further, there is significant public interest in
the resolution of the issue presented.  Accordingly, the exception
to the mootness rule applies.

     We now turn to the specific four proposals of the Union.
The Union's first two proposals for institutional employees
engaged in prison management and for all law enforcement personnel
were as follows:

     (1) Institutional employees in prison management receive
     1/2 average final compensation after completing 20
     years creditable service and reaching 50 years and
     contribute at a rate of 7-1/2% of earnable compensation,
     and that

     (2) Law enforcement employees receive 1/2 average final
     compensation after completing of 20 years creditable
     service without an age limit and contribute at a rate
     of 7-1/2% of earnable compensation.


     In its claim that negotiation of these two proposals was "prohibited
or controlled by public law" the State relied on the provisions
of 5 M.R.S.A.  1121 and 1095.  Section 1121 provides that a
member of the state retirement system may retire at a reduced
rate prior to 60 years of age after 25 years of creditable service
or at age 60 years.   1121(l)(A) and (3).  Section 1095(1)
provides for a member's contribution to retirement at 6-1/2% of
earnable compensation "except as hereinafter provided."  A percentage
rate is then provided as to various types of employment.  An
explicit exception to a contribution to retirement by a member
appears in section 1095(9), which provides:

          When the State pays for the member's mandatory
     contribution pursuant to a collective bargaining contract,
     as authorized by section 1062, subsection 2, paragraph
     G, the percentage rate paid by the State shall be that
     rate determined by the actuary and approved by the
     board which provides the same net revenues to the Maine
     State Retirement System as the applicable mandatory
     rate paid by the members.

The authorization to negotiate whether the State will pay the
member's mandatory contribution appears in the pertinent provisions
of section 1062(2)(G):

          Notwithstanding any other provision in this chapter, 6
     the State may agree to provide through a collective
     bargaining contract . . . payment for a member's mandatory
     contribution to the Maine State Retirement System as
     set forth in section 1095, in lieu of deducting the
     contribution from a member's compensation.

     6 The statutes governing the Maine State Retirement System
appeared in Chapter 101, 5 M.R.S.A.  1001-1181 (Supp. 1985).
We note that both sections 1095 (9) and 1062 (2) (G) were added by
P.L. 1981, ch. 453.

It is apparent that in considering the retirement rights, benefits
and obligations of a member of the state retirement system,
chapter 101 must be considered in its entirety.  Sections 1121
and 1095, as applicable to and governing the Union's proposals
one and two, clearly illustrate that which is and that which is
not excluded from collective bargaining by the "prescribed and
controlled" exception in section 979-D(1)(E)(1).  Section 1121
contains a positive directive as to age and length of creditable
service required before a member may retire.  Section 1095 mandates
the percentage of earnable compensation each member shall contribute
to retirement but expressly provides that through collective
bargaining negotiations the State can contract to provide payment
for a member's contribution.  See State v. Maine Labor Relations
Board, 413 A.2d 510, 515 (Me. 1980).  Accordingly, we agree with
the State that the Union's proposals one and two directed toward
age and length of creditable service required before a member can
retire were excepted from the duty to bargain, as is the percentage
of earnable compensation to be contributed by a member as set
forth in section 1095.  However, whether the contribution is
deducted from a member's compensation or paid by the State may be
provided through a collective bargaining contract, and accordingly
is not excepted from :the duty to bargain.  See sections 1095(9)
and 1062(2)(C).

     We apply a similar analysis to the Union's proposal number
four that military service credits be available for purchase
after ten (10) years of creditable service.  The State claimed


that 5 M.R.S.A.  1094(13) providing for purchase after fifteen
(15) years of creditable service "prohibited or controlled" this
proposal and exempted it from mandatory collective bargaining.
The Board noted that because paragraph 2 of section 1094(13)
provided, inter alia, "Nothing in this paragraph may be construed
to affect in any way the rights of public employees to bargain
collectively for terms and conditions of employment," that "the
topic of military service credits is appropriate for collective
bargaining."  We disagree.  Paragraph 2 of section 1094(13) was
inserted by P.L. 1981, ch. 217, at the same time the Legislature
added subsection (9) to section 1095 and subsection G to section
1062(2), setting forth that portion of the retirement system that
could be addressed in collective bargaining negotiations.  Section
1094(13) not only addresses the length of service required before
entitlement to purchase of military service credits, but also
requires that a contribution to the retirement fund be made
by each veteran for each year of military service claimed equal to
the contribution by active members during that same period, as
mandated by section 1095(1).  It is apparent that the sentence in
paragraph 2 of section 1094(13) relied on by the Board must be
construed with the other provisions of that section and the other
sections of chapter 101.  In so doing, it becomes apparent that
the only topic falling within the provisions of section 1094(13)
not exempted from the duty to bargain is whether the State will pay
the member's mandated contribution to the retirement fund.

     Finally, we address the third and remaining union proposal
that active employee survivor benefits be based on average final
compensation and years of service.  The State claimed this proposal
was prescribed or controlled by 5 M.R.S.A.  1124(B)(1) (Supp.
1985).  We agree.  Section 1124(B)(1) provides a stated monthly
allowance for (a) a disabled surviving spouse, (b) a surviving
spouse who has the care of a child or children, (c) a surviving
child or children, (d) a surviving spouse 60 years of age or over
and (e) surviving parent or parents 60 years of age or over.
This monthly allowance is unrelated to either the deceased employees
years of state service or the average compensation during state
service.  The language is mandatory and specific without any
reference to collective bargaining.

     Thus we have in section 1124(B)(1) a public policy decision
of the Legislature recognizing that: (1) benefits to designated
beneficiaries are ordinarily restricted to those persons who would
most seriously be affected by the death of the employee; (2) an
arbitrary figure not based on either length of service or rate of
pay is appropriate because general experience discloses that some
spouses, children, or parents are more seriously economically affected
by the death of that employee than others, an effect that is
probably in inverse relationship to the length of service and
rate of earnings of that employee; (3) although not eligible for
retirement, the deceased employee had made some contribution to
the retirement fund.


     We hold that within the meaning of 26 M.R.S.A.  979-D(l)(E)(1)
the public law as set forth in the Maine State Retirement System,
5 M.R.S.A.  1001-1181, "prescribed or controlled" the issues
contained in the four proposals of the Union and, therefore, the
proposals were not subjects of mandatory bargaining.  There is
nothing in this record to reflect that by its proposals the Union
sought through collective bargaining to have the State contract
to pay members' contributions to the retirement fund, as authorized
by 5 M.R.S.A.  1062(2)(G).  Accordingly, the Superior Court
properly held that the Board erred in ordering the State to cease
and desist from refusing to negotiate about the proposals of the

     The entry is:

                                  Judgment affirmed.

All concurring.

Attornev for Plaintiff:                       Attorneys for Defendants:
Sandra S. Carraher, Esq. (orally)             Eric R. Nelson, Esq. (orally)
Bureau of Employee Relations                  Roberta L. deAraujo, Esq.
State House Station 79                        Maine State Employees Association
Augusta, Maine 04333                          65 State Street
                                              Augusta, Maine 04333
                                              Marc P. Ayotte, Esq.
                                              Maine Labcr Relations Board
                                              State House Station 90
                                              Augusta, Maine 04333