Bureau of Employee Relations and MLRB v. AFSCME, 614 A.2d 74 (Me. 1992), vacating Board decision in AFSCME v. Governor McKernan and State of Maine, No. 91-18, aff'd CV-91-208

AFSCME Council 93 v. Governor McKernan and State of Maine, MLRB No. 91-18(Employee
Representative Lambertson dissenting in part, May 31, 1991), Decision and Order on
Motion for Stay, No. 91-18, June 5, 1991, Motion for Stay of Final Agency Action
Denied, No. CV-91-208 (Me. Super. Ct., Ken. Cty., July 25, 1991), MLRB decision
affirmed, No. CV-91-208 (Nov. 27, 1991), Board decision vacated sub nom Bureau
of Employee Relations v. AFSCME Council 93, 614 A.2d 74 (Me. 1992)

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision No. 6308
Law Docket No. KEN-91-638

BUREAU OF EMPLOYEE RELATIONS

AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, COUNCIL 93,
and
MAINE LABOR RELATIONS BOARD

Argued June 4, 1992
Decided September 10, 1992

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, and
COLLINS, JJ.

ROBERTS, J.

The Bureau of Employee Relations appeals from a judgment of the
Superior Court (Kennebec County, Chandler. J.) affirming a decision of the
Maine Labor Relations Board in favor of the American Federation of State,
County and Municipal Employees, Council 93 (AFSCME), that certain
unilateral changes in the pay schedule of AFSCME employees violated the
State Employees Labor Relations Act (SELRA), 26 M.R.S.A. 979 to 979-Q
(1988 & Supp. 1991). The Board ordered the Bureau to bargain collectively
with AFSCME over the changes and to reinstitute the former pay schedule.
Because the Board misinterpreted the collective bargaining agreement and
misapplied its authority to order the parties to bargain collectively, we

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vacate the judgment and remand with instruction to enter a judgment
vacating the Board's order.

In 1991 Governor John R. McKernan, Jr., in an attempt to reduce a
projected $355 million state budget deficit for fiscal year 1992,
implemented a plan to delay the biweekly paychecks of certain state
employees. Under the plan, paychecks for five pay periods would be delayed
by one day each period, increasing the lapse of time between each of those
paydays from fourteen to fifteen days. When the Bureau refused to negotiate
over the change, AFSCME filed a prohibited practice complaint with the
Board alleging that the change violated the biweekly pay requirement of 5
M.R.S.A. 10 (1989), which provides that all employees "shall be paid their
salaries or wages biweekly." AFSCME also alleged that the Bureau's refusal to
negotiate breached its duty under SELRA to bargain collectively and in good
faith. See 26 M.R.S.A. 979-C(1)(E), 979-D(1)(E).[fn]1

The collective bargaining agreement contains two provisions relevant
to the instant case, the Maintenance of Benefits article and the Embodiment
of Agreement article ("zipper clause"). In the zipper clause the parties
voluntarily and unqualifiedly" waived the right to bargain collectively "with
_________________________

1. 26 M.R.S.A. 979-D(1)(E) (1988 & Supp. 1991) provides, in pertinent part, that:

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

...

E. To confer and negotiate in good faith:
(1) To confer and negotiate in good faith with respect to wages, hours,
working conditions and contract grievance arbitration .... 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.

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respect to any subject or matter referred to or not referred to, covered or
not covered in this Agreement." Notwithstanding this broad waiver, the
State agreed, in the Maintenance of Benefits article, to consult and negotiate
with AFSCME before changing any negotiable benefits "presently provided
pursuant to law." The Board determined that the change in pay dates
without prior negotiation violated section 979-C(1)(E) of SELRA, which
prohibits the State from "[rlefusing to bargain collectively with the
bargaining agent of its employees as required by section 979-D." On the
Bureau's complaint for direct judicial review, the Superior Court affirmed
the Board's decision and this appeal followed.

Pursuant to section 979-H of SELRA, the Board is given authority to
prevent a party from "engaging in any of the prohibited acts enumerated in
section 979-C." The Board concluded that the Bureau, in refusing to bargain
collectively over the change in pay dates, had violated section 979-C(1)(E).
The Board interpreted the Maintenance of Benefits article, notwithstanding
the zipper clause, as preserving the statutory right to bargain over matters
that would have been negotiable had they not been "presently provided
pursuant to law." Thus since AFSCME had preserved its statutory right to
bargain, the Board found that the Bureau's refusal to negotiate constituted a
violation of SELRA and issued a cease and desist order. We reject the
Board's interpretation of the article with regard both to the subject matters
encompassed and the nature of the bargaining rights preserved in the
article.

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Under SELRA, a public employer may not bargain over matters
"prescribed or controlled by public law." See 26 M.R.S.A. 979-D(1)(E)(1):
see also Bureau of Maine State Police v. Pratt, 568 A.2d 501, 505 (Me.
1989). The Board decided that 5 M.R.S.A. 10 prescribes biweekly pay
dates but adopted the interpretation that the issue remained subject to
SELRA's mandatory bargaining provision because the pay dates would have
been negotiable had they not been "presently provided pursuant to law."
The Board's decision rests on the faulty premise that the phrase "presently
provided pursuant to law" as used in the Maintenance of Benefits clause is
equivalent to the "prescribed or controlled" language in section 979-C(1)(E)
of SELRA. Because it found those phrases to have identical meanings and to
avoid construing the article as a nullity, the Board interpreted the article in
such a manner that the parties to a collective bargaining agreement could,
through the bargaining process, bring within its provisions a matter
prescribed or controlled by public law.

Our prior decisions make the Board's analysis of doubtful validity. See,
e.g., Maine School Admin. Dist. No. 61 Bd. of Directors v. Lake Region
Teachers Ass'n, 567 A.2d 77 (Me. 1989); Washburn v. State, 432 A.2d 1237
(Me. 1981); Board of Directors of Maine School Admin. Dist. No. 36 v. Maine
School Admin. Dist. No. 36 Teachers Ass'n, 428 A.2d 419 (Me. 1981) (all
three cases supporting the proposition that a public employer cannot, in a
collective bargaining agreement, voluntarily relinquish control of matters as
to which negotiation is proscribed by SELRA). Contrary to the Board's
conclusion, the phrase "presently provided pursuant to law" and SELRA's

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prescribed or controlled" language are not two formulations of the same
proposition. Rather, the latter establishes that matters specifically
controlled by statute are binding on the parties and not subject to the
statutory obligation to bargain collectively. In contrast. the former simply
provides that those areas where the law affords some discretion in the
establishment of a particular benefit will not be changed without negotiating
the change with AFSCME. Thus the Board's construction of the article to
the effect that the parties agreed to negotiate over any change in the
biweekly pay dates prescribed by 5 M.R.S.A. 10 involves a misconception of
the parties' ability to bring the matter within the parameters of the
agreement.

II.

We need not decide whether section 10 affords some discretion in the
establishment of pay periods, because in any event the Board's analysis of the
proper remedy for refusal to negotiate over change in the benefits conflicts
with our holding in State v. Maine State Employees Ass'n, 499 A.2d 1228
(Me. 1985) (hereinafter MSEA). In that case the Board ordered the State to
bargain over the impact of three agency reorganizations. We observed in
MSEA that the duty to bargain may have both a statutory and a contractual
basis and that they "may exist independently and may differ in content." Id.
at 1231. We noted, moreover, that while the Board has authority to remedy
a breach of the statutory duty, a breach of the contractual duty "invoke[s]
contract grievance rather than labor board action." Id. We then vacated the
Board's order because the union, in the zipper clause, had completely

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waived any statutory right to bargain over the matter. Id. at 1232-33. Any
reservation of bargaining rights in the Maintenance of Benefits article
constituted contractual rights, enforceable through the collective bargaining
agreement's grievance procedures. Id.

The instant case involves a zipper clause and a Maintenance of Benefits
article substantially the same as those involved in MSEA.[fn]2 Nevertheless,
AFSCME attempts to distinguish MSEA and argues that the Maintenance of
Benefits article in the instant contract preserves its statutory right to
bargain. We do not find this attempted distinction persuasive. Contrary to
AFSCME's contention, the zipper clause in the instant case is at least as
broad as the one we considered in MSEA. In addition, the Maintenance of
Benefits provision, which we determined to reserve contractual rights in
MSEA, is almost identical to that in the instant contract. Thus our holding
in MSEA mandates a similar outcome in this case, i.e., that AFSCME waived
its statutory rights to bargain collectively.
_________________________

2. The waiver clause in MSEA stated:

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.

State v. Maine State Employees Ass'n, 499 A.2d 1228, 1230 (Me. 1985).

The Maintenance of Benefits provision in MSEA stated, in pertinent part:

With respect to negotiable wages, hours and working conditions not covered by this
Agreement, the States agrees to make no changes without appropriate prior
consultation and negotiations with the Association ....

Id. at 1231.

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7
III.

The Board also concluded that the change in pay dates fell within
SELRA's prohibition against interference with "the free exercise of any ...
right under ... chapter [9-B of title 26]."[fn]3 See 26 M.R.S.A. 979-B,
979-C(1)(A). Because 5 M.R.S.A. 10 is not a right under chapter 9-B. a
violation of section 10, assuming the conduct at issue to be one, does not
come within the reach of section 979-B. Thus the Board also erred in
asserting its authority based on a violation of section 979-C(1)(A).

The entry is:

Judgment vacated.

Remanded to the Superior Court with
instruction to enter a judgment vacating the
order of the Maine Labor Relations Board.
_____________________________________________________________________________
All concurring.
_________________________

3. Section 979-C(1)(A) prohibits the State from "[i]nterfering with, restraining or coercing
employees in the exercise of the rights guaranteed in section 979-B."

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STATE OF MAINE

SUPREME JUDICIAL COURT
Sitting as the Law Court Docket No. Ken-91-638

BUREAU OF EMPLOYEE RELATIONS )
)
v. ) MANDATE
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES, )
COUNCIL 93, et al. )

The above-captioned cause having been brought before this Court,
sitting as the Law Court, from the Superior Court in the County of Kennebec;
and it having been heard and maturely considered;

It is ORDERED that the Clerk of the Law Court enter upon the Law
Court docket and certify to the Clerk of the Superior Court in the County of
Kennebec the following mandate therein:

Judgment vacated.

Remanded to the Superior Court with instruction to
enter a judgment vacating the order of the Maine
Labor Relations Board.

Dated: September 10, 1992.

For the Court

/s/___________________________________
David G. Roberts
Associate Justice

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