Affirming Case No. 06-13.










	   This matter comes before the court on the petition for review of final agency
action brought by petitioner Neily pursuant to 26 M.R.S.A.   979 and M.R.Civ.P.80C.
Because the court finds no insufficient findings, abuse of direcretion or error of law, the
decision of the agency will be affirmed.


     The background for this appeal can be found in collective bargaining between
the State of Maine ("State") and the Maine State Employees Association ("MSEA").
Pursuant to these negotiations, in the spring of 2001 a market pay analysis was made of
certain positions in state government for the purpose of adjusting the pay for those
positions.  The study led to a memo of agreement between the State and MSEA dated
June 1, 2001, the contents of which led to pay adjustments in certain of those positions.
The final Collective Bargaining Agreement for that period was approved and funded by
Public Law 2001, Chapter 438, entitled "An Act To Fund the Collective Bargaining
Agreements and Benefits of Employees Covered by Collective Bargaining and For
Certain Employees Excluded From Collective Bargaining."  A provision of the enabling
legislation includes the follows:

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     SEC. A-6 New Employees; similar and equitable treatment. Employees in
     classifications included in bargaining units referred to in section 1 and 2 of
     this Part but who are excluded from collective bargaining pursuant to the
     Maine Revised Statutes, Title 26, section 979-A, subsection 6, paragraphs E
     and F must be given equitable treatment on a pro rata basis similar to that
     treatment given employees covered by the collective bargaining 

     In mid-July 2002, a new position of Boiler Inspector was created subject to the
Collective Bargaining Agreement.  On November 2, 2002, the petitioner was hired for a 
position as Boiler Inspector at a pay rate apparently established through bargaining
when it was established four months earlier.  In July 2005, the petitioner for the first
time had an opportunity to see the study conducted in the spring of 2001.  On October
14, 2005, the petitioner filed a prohibited practices complaint with the Maine Labor
Relations Board ("MLRB") requesting that the MLRB order the State to perform an
evaluation of his job classification for market pay adjustment.  Specifically, the
petitioner alleges that the State and MSEA each failed to bargain in good faith over
wages as required by 26 M.R.S.A.   979-D(1)(E)(1), by refusing to perform a market
analysis or bargain for a wage change for his job, as he asserts is required under P.L.
2001, ch.438.

     The State and MSEA each filed a motion to dismiss before the MLRB on the
grounds that the complaint was (1) time-barred and (2) that the petitioner lacked
standing to allege a violation of the State's duty to bargain in good faith.  Following
hearing, the executive director of the MLRB issued a decision granting the motions to
dismiss on the basis that they were time-barred under the six-month limitation period
of the applicable statute and noting that even if the complaint was not time-barred, the
petitioner did not have standing to enforce violation of the duty to bargain.  From these
decisions, the petitioner took a timely appeal.

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     The key to the petitioner's argument is his reading of chapter 438 such that the 
legislature created an ongoing obligation on the part of the State and MSEA to conduct
additional market analyses for job applications that did not exist at the time of the 2001
Collective Bargaining Agreement.  This reading is not only critical to the petitioner's
arguments on the merits, but it also plays a part in his argument concerning the
timeliness of this complaint of violations of the State Employees Labor Relations Act.
The argument is: (1) chapter 438 created a right to a pay market analysis of the
petitioner's job classification, which was never done; (2) the petitioner only learned of
this asserted right in the summer of 2005; therefore (3) his complaint cannot be time-
barred because he filed his complaint within six months of learning of the failure of the
State and MSEA to perform the market pay analysis.  However, it would follow that if
there never was a right to the market pay analysis, there was no right for the petitioner
to learn of in the summer of 2005 and the question of timeliness becomes moot.

     The standard of review in agency appeals pursuant to M.R. Civ. P. 80C is
whether the record contains competent and substantial evidence that supports the
decision of the agency, whether the agency abused any discretion and whether the 
agency committed any error of law in reaching its conclusion.  In the present appeal,
there appears to be no question concerning the facts or any discretionary decision, and
the only points of review are whether the MLRB erred as a matter of law in concluding
that the complaint was not timely and that the petitioner lacks standing to bring the
complaint. Because the court agrees with the MLRB on both issues, the decision will be

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     With regard to the statute of limitations issue, the State Employees Labor
Relations Act contains a six-month limitation period. Since there was clearly more than
six months between the creation of the petitioner's petition and the date of his
complaint, he would be out of luck unless he can establish some excuse or defense to
save his complaint. The petitioner's argument here is that he did not learn about the
market pay analysis and agreement until mid-2005, so that the tolling clock would not
begin running until that date.  The whole argument becomes rather circular and
dependent upon whether the petitioner ever really had the right to such market
analysis as a matter of law under the contract or enabling legislation. Review of those
documents reveals that the MLRB made no error of law in determing that such right
never existed.

     Nothing in the Collective Bargaining Agreement, the separate agreement on
market analysis, or the enabling legislation created an ongoing duty for the State and 
MSEA to conduct continuing market analysis of pay positions.  The Collective
Bargaining Agreement was for a discreet period and the supplemental market analysis
was also for discreet positions within the time period of the contract.  That portion of
the contract which calls for similar and equitable treatment of new or excluded
employees creates no new rights for the petitioner or any employees similarly situated.
Thus, incorporated within the MLRB's decision with regard to the statute of limitations
is a decision which answers the ultimate question, and this answer was not an error of

     The decision of the MLRB with regard to the petitioner's standing likewise
presents no error of law. The statutory duty to bargaining runs exclusively between the
bargaining agent (MSEA) and the employer (State).  Contrary to the petitioner's
argument, the refusal to perform a market analysis of his job classification does not

[end of page 4]

implicate a refusal to bargain. If there ever was a right to such review, which there was
not, such failure would be a failure to implement the contract, not a failure to bargain.
As such, the petitioner's complaint would become a grievance subject to hearing under
a process set forth in the contract, as opposed to a prohibited practice which is within
the MLRB's jurisdiction to hear.

     For either or both of the reasons stated above, the entry will be:

          Agency decision is AFFIRMED.

Dated: October 23, 2006            /s/ __________________________________________________
                                   S. Kirk Studstrup
                                   Justice, Superior Court

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