This Law Court case is not an appeal of an MLRB decision.
It has been placed on the Board's website because it is a 
noteworthy case involving Maine's public sector collective 
bargaining laws.

Decision:  7118
Docket:    Ken-94-447
Argued:    November 1, 1994 
Decided:   January 19, 1995




and LIPEZ, JJ.


     The Maine State Employees Association (MSEA) appeals from a judgment 
entered in the Superior Court (Kennebec County, Alexander, J.) denying 
MSEA's motion to compel arbitration and granting the motion of the Bureau 
of Employee Relations to stay arbitration.  MSEA asks us to declare 
unconstitutional P.L. 1991, ch. 780, pt. V,  V-1, thereby rendering the 
issue of merit pay an arbitrable issue.  We affirm the judgment.

     The MSEA is a party to this suit in its capacity as the certified 
bargaining agent for employees working in various bargaining units of the 
executive branch of the state government.  The Bureau of Employee 
Relations is the statutorily designated representative for the executive 
branch in all collective bargaining activities.  26 M.R.S.A.  979-A(5)(B) 
(1988 & Supp. 1994).  MSEA's collective bargaining agreement for the 
executive branch employees expired on June 30, 1992.  Agreements with 
other state agencies expired at various times between September 30, 1992, 
and June 30, 1993.  All of these agreements provided for salary grade 
progression on the basis of satisfactory job performance based on 
established standards of performance.

     In March 1992 the Legislature enacted a law that prohibited the
implementation of merit increases to state employees between July 1, 
1992, and June 30, 1993.  P.L. 1991, ch. 780, pt. V,  V-1.  Incorporated 
in part V of chapter 780 was a nonseverability provision that read:

        Notwithstanding the Maine Revised Statutes, Title 1, section 
     71, if any provision of this Part is finally determined by a 
     court of competent jurisdiction to be invalid or to impermissibly 
     infringe on rights secured by contract or law, this Part is 
     invalid and without effect.

P.L. 1991, ch. 780, pt. V,  V-5.

     Pursuant to section V-1, and on the expiration of the collective 
bargaining agreement with its employees, the executive branch implemented 
a freeze in employees' merit increases on July 1, 1992.  The MSEA filed a 
grievance on July 30, 1992, that was eventually 

heard by an arbitrator.  The arbitrator determined that the issue of 
merit increases was not an issue subject to arbitration because the State 
Employees Labor Relations Act excepts from collective bargaining, 
including grievance arbitration, "those matters which are prescribed or 
controlled by public law."  26 M.R.S.A.  979-D(1)(E)(1) (1988 & Supp. 

     Pursuant to the Uniform Arbitration Act, the MSEA sought an order to 
compel arbitration between the MSEA and the Bureau.  The Bureau filed a 
cross-motion to stay the arbitration proceedings.  After the court entered 
judgment in favor of the Bureau, the MSEA filed this timely appeal.

     The trial court denied the motion to compel arbitration and granted 
an order to stay arbitration on the ground that the MSEA had failed to 
establish that the challenged statute was unconstitutional.  We need not 
address the issue of the constitutionality of P.L. 1991, ch. 780, pt. V, 
 V-1.  The trial court could not compel arbitration of the present 
dispute for the simple reason that the Uniform Arbitration Act requires 
the existence of a written arbitration agreement.  14 M.R.S.A.  5927-5928 
(1980).  The only written contract between the parties had previously 
expired by its terms.

     The MSEA argues that the Bureau's duty to continue the employment 
terms of the expired collective bargaining agreement includes the duty to 
arbitrate disputes as provided in the agreement.  Indeed, we have 
recognized that an employer may not unilaterally alter the terms and 
conditions of employment after the expiration of a collective bargaining 
agreement.  Lane v. Board of Directors, Sch. Admin. Dist. No. 8, 447 A.2d 
806, 809-10 (Me. 1982).  "This rule ... is not based upon contract law ... 
[but] on the principle that unilateral alterations of the collective 
bargaining agreement are in contravention of the statutory duty to bargain 
in good faith."  Id. at 810.  Even if the Bureau had a duty to arbitrate 
imposed by statute or by decision of the Maine Labor Relations Board, that 
duty would not be a substitute for a valid agreement to arbitrate.[fn]1
Absent such an agreement, the trial court lacked the authority to compel
arbitration pursuant to the Uniform Arbitration Act.  See Teamsters Union 
Local No. 340 v. Portland Water Dist., 651 A.2d 339 at 341-342 & n.5 
(Me. Dec. 19, 1994).  We decline, therefore, the invitation of the 
parties in this litigation to address a question of the constitutionality 
of legislation in order to determine the arbitrability of a dispute that 
is not the subject of an agreement to arbitrate.

     The entry is:

     Judgment affirmed.

     All concurring.

1.  The MSEA stated at oral argument that it had become the practice to
  arbitrate grievances after the expiration of a contract.  The Bureau's
  willingness to arbitrate some grievances cannot constitute an agreement 
  to arbitrate all grievances.