Case No. 86-09
                                           Issued:  April 23, 1986
                      Complainant,  )
                 v.                 )      DECISION AND INTERIM ORDER
        THE STATE OF MAINE,         )
                       Respondent.  )

     On December 18, 1985, the Maine State Employees Association
(MSEA) duly filed with the Maine Labor Relations Board (Board) a pro-
hibited practice complaint alleging that the State has refused to
bargain with the MSEA as required by 26 M.R.S.A. Sec. 979-D (Supp. 1985),
in violation of 26 M.R.S.A. Sec. 979-C(l)(E)(1974).  More specifically,
the MSEA alleges that on September 3, 1985, the State of Maine unila-
terally imposed a change in the workplace smoking policy applicable to
Department of Human Services (DHS) employees without bargaining over
the policy as requested by MSEA.

     The MSEA contends that the policies and practices concerning
smoking in the workplace which existed prior to the imposition of the
State's smoking policy are mandatorily negotiable subjects not speci-
fically covered by the bargaining agreements, which are nonetheless
protected from unilateral modification by Maintenance of Benefits
articles in collective bargaining agreements executed by the parties.
The MSEA further alleges that the complained-of State actions also
violate 26 M.R.S.A. Sec. 979-C(1)(A)(1974).  The State contends that the
changes it has effectuated in the DHS workplace smoking policies are
required by statute and are permitted by both the Health and Safety
and Work Rules articles of the collective bargaining agreements.

     The State duly filed its response to the complaint, and on
January 17, 1986, Alternate Chairman Donald W. Webber conducted a pre-
hearing conference.  The Prehearing Conference memorandum and order


issued by Alternate Chairman Webber on January 20, 1986, is incor-
porated in and made a part of this decision and order.  As a result of
the parties' preheating agreement that no unresolved factual issues
remain, the following disputed legal issues are submitted to the
Board by written argument:

     1.  Is the smoking policy decision promulgated by DHS a man-
         datory subject of collective bargaining?
         (Note-The State agrees that it is, except for the pos-
         sible effect of the enactment of 22 M.R.S.A. S 1580-A
         (Supp. 1985)).

     2.  Did the MSEA waive its right to negotiate the smoking
         policy by language contained in the collective
         bargaining agreements?
     On March 20, 1986, the Board, consisting of Chairman Edward S.
Godfrey, presiding; Thacher E. Turner, Employer Representative; and
George W. Lambertson, Employee Representative, deliberated the issues
framed by the complaint and response, narrowed by the Prehearing
Conference Memorandum and order and argued in the parties' briefs, the
last of which was filed March 14, 1986.  The Board deliberated further
on April 3, 1986.


     Neither party has challenged the jurisdiction of the Board in
this case.  We conclude that the Board has jurisdiction over this
controversy pursuant to 26 M.R.S.A. Sec. 979-H (1974 & Supp. 1985).  The
complaint alleges a violation of the obligation to bargain prescribed
in 26 M.R.S.A. Sec. 979-D (1974 & Supp. 1985), which violation is speci-
fically prohibited by 26 M.R.S.A. Sec. 979-C(1)(E) (1974).  The complaint
also alleges interference, restraint, or coercion, all of which are
prohibited by 26 M.R.S.A. Sec. 979-C(1)(A)(1974).  It is possible that
the acts complained of constitute both contract violations and prohi-
bited practices.fn1 The existence of that possibility does not divest

     1 The Responsibilities of the Parties articles in the parties'
agreements prohibit the interference, restraint and coercion charged in
the MSEA's derivative 26 M.R.S.A. Sec. 979-C(1)(A)(1974) allegation.


the Board of its jurisdiction under 26 M.R.S.A. Sec. 979-H (1974).  The
Legislature has recognized arbitration as the desirable method for
resolving contract disputes, State of Maine v. Maine State Employees
Association, 499 A.2d 1228, 1231-32 (Me. 1985), citing Lewiston
Firefighters Association v. City of Lewiston, 354 A.2d 154, 166 (Me.
1976).  However, the Legislature has also explicitly stated that the
Board's prohibited practice jurisdiction "shall not be affected by any
other means of adjustment or prevention that has or may be established
by agreement, law or otherwise."  26 M.R.S.A. Sec. 979-H(1)(1974).


     The MSEA is the exclusive collective bargaining agent of units of
the State's Administrative Services; Operations, Maintenance and
Support Services; Law Enforcement Services; Professional and Technical
Services; and Supervisory Services employees.  The State and the MSEA
are parties to five collective bargaining agreements, applicable to
DHS employees in several of the above-mentioned units, which are
effective from September 3, 1984, to June 30, 1986.  Certain provi-
sions of those agreements are drawn into question in the present contro-
     On July 23, 1985, representatives of the MSEA met with represen-
tatives of the State and the DHS.  At that meeting, representatives of
the State and the DHS informed the MSEA that they were considering
changes to the DHS policy and/or practice regarding workplace smoking
by DHS employees.  The MSEA notified the State and the DHS that the
MSEA considered any change in workplace smoking policy to be subject
to collective bargaining, and demanded negotiations over any such
change.  The State and the DHS refused to negotiate with MSEA over the
proposed changes in.the DHS smoking policy. on or about September 3,
1985, the State and the DHS implemented a new workplace smoking policy
applicable to DHS employees without negotiating over the policy itself
or its impact.  The new policy changed the conditions under which DHS
employees were permitted to smoke at the workplace.

     On September 11, 1985, the MSEA filed a grievance against the
State and the DHS under the grievance procedure in the parties'
collective bargaining agreements.  In the grievance letter, the MSEA
repeated its demand that the State and the DHS negotiate with the MSEA
over the new workplace smoking policy.  The MSEA also demanded that
the new policy be rescinded pending those negotiations.
     On December 2, 1985, the MSEA filed a written demand for arbitra-
tion with the Governor's office of Employee Relations requesting a
determination of whether the State violated the Maintenance of
Benefits articles[fn]3 of the collective bargaining agreements when it
refused to negotiate changes in DHS working conditions regarding
smoking.  No procedural issues exist with regard to the grievance ini-
tiated by the MSEA on September 11, 1985.  The matter is now properly
before the arbitrator at step four of the grievance procedure and
scheduled to be heard on August 15, 1986.  As of the date of the
filing of the complaint herein, the State and the DHS had refused to
negotiate with the MSEA over a workplace smoking policy for DHS
employees.  The new policy, implemented on September 3, 1985, was in
effect at the time of the filing of the complaint.
     The MSEA has charged that the State has violated the State
Employees Labor Relations Act by changing smoking policies applicable
to DHS employees included in various bargaining units which the MSEA
represents as collective bargaining agent.  The State admits that its
changes in these policies were made without bargaining as requested by

     2 State Case No. 919 (American Arbitration Association No.

     3 The parties agreements' all contain Maintenance of Benefits
articles which state:

       With respect to negotiable wages, hours and working con-
       ditions 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 MSEA.  The State asserts in defense of the changes, however, that
they were made unilaterally under the authority of certain articles in
the parties' agreements.  Since the complaint may be read to charge a
violation of the Maintenance of Benefits articles and since the State's
defense consists wholly of claimed contractual privilege, the question
whether a refusal to bargain has occurred will be determined on the
basis of the interpretation of provisions of the bargaining agreements.
We therefore conclude, in accordance with our longstanding policy,
that the case should be deferred to the parties' voluntary dispute
resolution machinery.  See Teamsters Local Union No. 48 v. City of
Calais, No. 80-29 (Me.L.R.B. May 13, 1980); MSAD #45 Teachers
Association v. MSAD #45 Board of Directors, No. 78-10 (Me.L.R.B. Jan.
24, 1978); Bangor Education Association v. Bangor School Committee,
No. 76-11 (Me.L.R.B., July 31, 1976); Tri-22 Teachers Association v.
MSAD, No. 22, No. 75-28 (Me.L.R.B. Sept. 9, 1975).

     Deferral to the arbitral process is the preferable course in
cases such as the instant one where the alleged refusal to bargain may
be cognizable both as a prohibited practice and as a breach of
contract.  This policy gives full effect to the parties' agreement to
submit contract disputes to arbitration.  In this respect we agree
with the rationale contained in the following statement made by the
National Board in National Radio Co., 198 NLRB 527, 531 (1972),
quoted in United Technologies Corp., 268 NLRB 557, 559 (1984):

          Here . . . an asserted wrong is remediable in both
          a statutory and a contractual forum.  Both juris-
          dictions exist by virtue of congressional action,
          and our duty to serve the objectives of Congress
          requires that we seek a rational accommodation
          within that duality.  We may not abdicate our statu-
          tory duty to prevent and remedy unfair labor prac-
          tices.  Yet, once an exclusive agent has been
          chosen by employees to represent them, we are
          charged with a duty fully to protect the struc-
          ture of collective representation and the freedom
          of the parties to establish and maintain an effec-
          tive and productive relationship.

               In this context, abstention simply cannot be
          equated with abdication.  We are, instead, adjuring
          the parties to seek resolution of their dispute
          under the provisions of their own contract and thus

          fostering both the collective relationship and the
          Federal policy favoring voluntary arbitration and
          dispute settlement.

Moreover, we agree with the following statements by the National Board
regarding the similar policy considerations under the National Act:
          It is fundamental to the concept of collective
          bargaining that the parties to a collective-
          bargaining agreement are bound by the terms of their
          contract.  Where an employer and a union have
          voluntarily elected to create dispute resolution
          machinery culminating in final and binding arbitra-
          tion, it is contrary to the basic principles of the
          Act for the Board to jump into the fray prior to an
          honest attempt by the parties to resolve their
          disputes through that machinery.  For dispute reso-
          lution under the grievance-arbitration process is as
          much a part of collective bargaining as the act of
          negotiating the contract.  In our view, the statu-
          tory purpose of encouraging the practice and proce-
          dure of collective bargaining is ill-served by
          permitting the parties to ignore their agreement
          and to petition this Board in the first instance
          for remedial relief. (Footnote omitted).

United Technologies Corp., 268 NLRB 557, 559 (1984).

     The Maine Board has not been indiscriminate in deferring to arbi-
tration and has refused to defer on many previous occasions.[fn]4  The
present case is suited to resolution by arbitration because the bargain-
ing agreements and their meaning are at the center of the dispute.
Where deferral is to a scheduled prospective arbitration, the Board,
while deferring, maintains jurisdiction over the prohibited practice
complaint for the purpose of taking appropriate action should further
proceedings be required.  See Council #74, AFSCME v. City of Bangor,
No. 80-50 (Me.L.R.B. Sept. 22, 1980); MSAD #45 Teachers Association
v. MSAD #45 Board of Directors, No. 78-10 (Me.L.R.B. Jan. 24, 1978).


     On the basis of the foregoing findings of fact and discussion,
and by virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. Sec. 979-H (1974 & Supp.

     4 The Board has previously refused to defer in a case involving a
discrimination charge, see Ross v. Portland Superintending School


1985), it is ORDERED:

     That processing of the MSEA's prohibited practice complaint
     be deferred pending resolution of the parties' scheduled

      That the parties notify the Board within ten calendar days
      of any settlement or award in this matter.  Motions for
      resumed processing of the prohibited practice complaint must
      be made within twenty calendar days after any award.

Dated at Augusta, Maine this 23rd day of April, 1986.

                                          MAINE LABOR RELATIONS BOARD

                                          Edward S. Godfrey 

                                          Thacher E. Turner
                                          Employer Representative

                                          George W. Lambertson
                                          Employee Representative

Committee of the City of Portland, No. 83-04 (Me.L.R.B. Aug. 29, 1983),
and in a case involving allegations of interference, restraint, and
coercion.  See Woodward v. Town of Yarmouth, No. 83-16 (Me.L.R.B.
Oct. 5, 1983).  The Board has in two cases refused to defer based on
the existence of a conflict of interest.  See Teamsters Local Union No.
48, State, County, Municipal and University Employees v. Biddeford
Police Department, No. 78-31 (Me.L.R.B. Mar. 27, 1979) and Charles v.
City of Waterville, No. 78-19 (Me.L.R.B. July 21, 1978).

     The Board has also refused to defer in a case where no contract
violation was alleged, see East Millinocket Teachers Association v.
East Millinocket School Committee, No. 79-24 (Me.L.R.B. April 9,
1979), where the case involved violation of the strike prohibition,
see Rumford School Department v. Rumford Teachers Association, No.
79-15 (Me.L.R.B. July 30, 1979), where the grievance procedure was
unavailable, see Teamsters Local Union No. 48, State, County,
municipal and Univeristy Employees in the State of Maine v. City of
Bangor, No. 80-46 (Me.L.R.B. Oct. 6, 1980) and where the dispute
involved interpretation of the Municipal Act and the Board was unsure
that deferral would settle the matter.  See Council #74, AFSCME v.
City of Bangor, No. 80-50 (Me.L.R.B. Sept. 22, 1980).