State of Maine, Bureau of Alcoholic Beverages v. MLRB and MSEA, CV-78-484, affirming MSEA v. State of Maine, Bureau of Alcoholic Beverages, No. 78-23; affirmed 413 A.2d 510 (Me. 1980). STATE OF MAINE SUPERIOR COURT KENNEBEC, SS CIVIL ACTION Docket No. CV 78-484 STATE OF MAINE, ET AL., ) ) Plaintiff ) ) v. ) DECISION AND ORDER ) MAINE LABOR RELATIONS BOARD, ) ET AL., ) ) Defendant ) This is an appeal filed by the plaintiffs, State of Maine and the Bureau of Alcoholic Beverages, from Decision 78-23 of the Maine Labor Relations Board (hereinafter M.L.R.B.). The M.L.R.B. determined that the State and the Bureau of Alcoholic Beverages violated 26 M.R.S.A. 979-C(1)(E) by failing to negotiate with the Maine State Employees Association relative to holiday openings of state liquor stores. The M.L.R.B. decision further ordered the State and the Bureau to cease opening state liquor stores on state holidays without negotiating with the Maine State Employees Association. This appeal was filed pursuant to Rule 80B, Me.R.Civ.P. and 26 M.R.S.A. 979-H(7). The facts involved in this case were stipulated by the parties before the Maine Labor Relations Board, and are briefly summarized as follows. The defendant Maine State Employees Association is the duly certified collective bargaining agent of Retail Store Clerks of the state liquor stores. The State of Maine is the public employer under the State Labor Relations Act and the Bureau of Alcoholic Beverages is the employing agency of the Retail Store Clerks. -1- ______________________________________________________________________________ At all times material herein, M.S.E.A. and the State of Maine were engaged in negotiations for a collective bargaining agreement to cover the bargaining unit of state employees which includes the Retail Store Clerks employed in the State of Maine Liquor Stores. Among the items which M.S.E.A. submitted for negotiations was a proposal concerning holiday work, including work on Washington's Birthday. By Personnel Memorandum 21-77, dated November 22, 1977, the Commissioner of the State of Maine Department of Personnel designated Washington's Birthday, February 20, 1978, as a holiday for state employees. On February 6, 1978, the Bureau of Alcoholic Beverages issued a memorandum directing all liquor store managers to keep the state liquor stores open for business on Washington's Birthday, February 20, 1978. Prior to that date, the M.S.E.A. submitted an oral request that the liquor stores remain closed for the holiday. The State did not accede to the request and those retail store clerks who worked on Washington's Birthday were paid holiday pay in accordance with existing state policy and practice. Thereafter, the M.S.E.A. filed a complaint with the Maine Labor Relations Board, contending that the State had violated 26 M.R.S.A. 979-C(1)(E) by failing to negotiate with the M.S.E.A. regarding the opening of state liquor stores on Washington's Birthday. The M.L.R.B. found for the M.S.E.A., and the State and Bureau brought the instant appeal from the Board's Decision and Order. The issues presented in this appeal are as follows: 1. Whether the days of operation of the state liquor stores is a matter "prescribed and controlled by public law," specifically 28 M.R.S.A. 154, and therefore outside the scope of collective bargaining pursuant to 26 M.R.S.A. 979-D(1)(E)(1). -2- ______________________________________________________________________________ 2. Whether the Board erred in deciding that the State and the Bureau were required to negotiate with the M.S.E.A. over the opening of state liquor stores on state holidays, pursuant to 26 M.R.S.A.979-C(1)(E) and 979-D. I. THE DAYS OF OPERATION OF THE STATE LIQUOR STORES IS NOT A MATTER PRESCRIBED AND CONTROLLED BY PUBLIC LAW, AND THEREFORE NOT OUTSIDE THE SCOPE OF THE COLLECTIVE BARGAINING PROCESS Title 16 M.R.S.A. 979-D(1)(E)(1) mandates that the public employer and the employees' bargaining agent shall "confer and negotiate in good faith with respect to wages, hours, working conditions and contract grievance arbitration." It further directs that: All matters relating to the relationship between the employers and employees shall be the subject of collective bargaining, except those matters which are prescribed or controlled by public law. [emphasis supplied]. The plaintiff contends that 28 M.R.S.A. 154 removes the issue of whether state liquor stores shall be open on state holidays from the collective bargaining process. That statute reads as follows: State retail liquor stores and state agency stores may be open for the sale and delivery of liquor between the hours of 9 a.m. and mid- night in municipalities and unincorporated places which have voted affirmatively on section 101, subsection 1. The State Liquor Commission shall establish the hours of operation of each state liquor store and state agency store. The hours of sale referred to in this section shall be the legal time prevailing in the State on the day of the sale. [emphasis supplied]. The Court does not agree that the issue of holiday work is prescribed or controlled by this statute. Section 154 authorizes the State Liquor Commission to establish only the hours of operation. While the first sentence of the statute states that the liquor stores may be open between -3- ______________________________________________________________________________ the hours of 9 a.m. and midnight, the second sentence merely grants the Commission the limited power of determining store hours within the statutory guidelines. To construe the statute so as to include the power to determine holiday openings/closings without negotiations would unduly extend the scope of the Commission's authority. It follows that the State Liquor Commission could not delegate such power to determine holidays to the Bureau of Alcoholic Beverages under 28 M.R.S.A. 154. Further, the Court rejects the plaintiffs' contention that the legislative history of 28 M.R.S.A. 154 indicates that the statute controls the days of operation of state liquor stores. The plaintiffs note that the previous statute required that state stores be closed on court holidays. Where this provision was repealed, and the present Section 154 permits the State Liquor Commission to "establish the hours of operation of each store", the plaintiffs argue that the Commission is authorized to establish the days of operation as well exempt from the collective bargaining process. Although holiday openings are permitted under the present statute, Section 154 grants the Commission the authority to establish only the hours of operation within the statutory guidelines of 9 a.m. and midnight. No mention is made relative to the days of operation, and where the "statutory language . . . is clear and unambiguous [it] must be held to mean what it declares plainly." Reggep v. Lunder Shoe Products Company, 241 A.2d 802, 805 (Me. 1968) quoting State v. White, 145 Me. 381, 382 (1950). Indeed, pertinent language would be required for the Court to invoke the harsh penalty of excluding absolutely a subject from the collective bargaining process under 26 M.R.S.A. 979-D(1)(E)(1). -4- ______________________________________________________________________________ The Court concludes that the days of operation of the state liquor stores is not a matter "prescribed and controlled" by 28 M.R.S.A. 154 and therefore is not excluded from mandatory subjects of bargaining pursuant to 26 M.R.S.A. 979-D(1)(E)(1). II. THE MAINE LABOR RELATIONS BOARD DID NOT ERR IN DECIDING THAT THE STATE AND THE BUREAU WERE REQUIRED TO NEGOTIATE WITH THE M.S.E.A. RELATIVE TO THE OPENING OF THE STATE LIQUOR STORES ON STATE HOLIDAYS. The Maine Labor Relations Board correctly determined that the plaintiffs violated 26 M.R.S.A. 979-C(1)(E). Specifically, the plaintiffs' refusal to meet with the M.S.E.A. relative to whether the state liquor stores would remain open on a previously recognized state holiday constituted a failure to negotiate with respect to "wages, hours and working conditions" pursuant to 26 M.R.S.A. 979-D(1)(E)(1). Instructive is Local Union No. 189, Amal. Meat Cutters v. Jewel Tea Company, 381 U.S. 685, 85 S.Ct. 1596(1965), where the Supreme Court construed section 8(d) of the National Labor Relations Act requiring the employer and union to bargain in good faith concerning "wages, hours and other terms and conditions of employment." There, a collective bargaining agreement restricted the operating hours of food store meat departments to 9 a.m. to 6 p.m., Monday through Saturday, inclusive. In holding that such a restriction was exempt from the Sherman Act, the Court stated: . . . we think that the particular hours of the week during which the employees shall be required to work are subjects well within the realm of "wages, hours and other terms and conditions of employments about which employers and unions must bargain. National Labor Relations Act, 58 (d) see Timken Roller Bearing Co., -5- ______________________________________________________________________________ 70 N.L.R.B. 500, 504, 515-516, 521 (1946), rev'd on other grozmds, 161 F.2d 949 (C.A. 6th Cir. 1947) (employer's unilateral imposition of Sunday work was refusal to bargain); .... Id. at 1602.[fn]1 Likewise, this Court finds that the Maine Labor Relations Board was correct in concluding that holiday openings of state liquor stores is a matter "well within the realm" of wages, hours and working conditions,[fn]2 and thus, is subject to the collective bargaining process. Indeed, the plaintiffs do not directly contest the Board's decision that holiday openings fall within the term "hours and working conditions." Rather, the plaintiffs argue that any changes of "wages, hours and working conditions" which involve "governmental policy" are exempt from the collective bargaining process, and here, the hours of operation of a state agency is such a policy decision. Plaintiffs' reliance for this proposition on cases decided under the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961 et seg. ("MPELRA"), is misplaced. The State Employees Labor Relations Act contains no provision similar to the "educational policy" clause of ______________________________ 1 See also: N.L.R.B. v. Sharon Hats, Inc., 289 F.2d 628, 631 (5th Cir. 1961), employer's unilateral alteration of existing vacation plan constituted violation of Act, as employer failed to bargain with respect to wages, hours and working conditions of its employees. Great Southern Trucking Co. v. N.L.R.B., 182 F.2d 180 (4th Cir. 1942) [paid vacations]. 2 For the purposes of determining whether the issue in question is subject to the collective bargaining process, there is no meaningful distinction between the statutory language contained in National Labor Relations Act 8(d) ["other terms and conditions of employment"] and the term ["hours and working conditions"] chosen by the Legislature in 26 M.R.S.A. 979-D(1)(E)(1). See: N.L.R.B. v. Sharon Hats, Inc. 289 F.2d at 629, 631 where the Court used the terms "working conditions" and "terms and conditions of employment" interchangeably. -6- ______________________________________________________________________________ MPELRA. Section 965(1)(C) of the latter act states that the public employer and the bargaining agent must: confer and negotiate in good faith with respect to wages, hours, working conditions and contract arbitration,... except that public employees of teachers shall meet and consult but not negotiate with respect to educational policies.... [emphasis supplied]. No such exception is included in State Employees Relations Act and there is no authority to suggest that such a limitation should be implied. Although the Legislature enacted a "educational policy" exception in MPELRA, it is quite limited. The exclusion applies only to teachers covered by the Act. No broad exception for managerial decisions", which would affect all municipal employees, is included in MPELRA. Further, under MPELRA, public employers of teachers are still required to "meet and consult" with the teachers relative to educational policies. Such restrictive language suggests to this Court that the limitation is to be applied only to public employers of teachers and the teachers' bargaining agents,[fn]3 and no implication of such ______________________________ 3 See: McGuire and Dench, Public Employee Bargaining under the Maine Municipal Public Employees Labor Relations Law., 27 Maine Law Review 29 (1975): The fundamental purpose of the educational policy exception is clear from the views expressed by professional educators, ... concerning the proper role of collective bargaining in public education. While they were willing to negotiate wages, hours and narrowly defined working conditions, educators repeatedly expressed concern ... over possible interferences by labor unions with the statutory obligation of publicly elected school boards to direct the community's educational policy. Id. at 82. See also: Biddeford v. Biddeford Teachers Assoc., 304 A.2d 387 (Me. 1973). -7- ______________________________________________________________________________ a policy should be transplanted to the State Public Employees Labor Relations Act. See: Churchill v. S.A.D. #49 Teachers' Association, 380 A.2d 186, 192 (Me. 1971), where the Court stated that statutes in derogation of the common law, such as MPELRA, must be strictly construed and not extended by implication. The entry shall be: The decision of the Maine Labor Relations Board is AFFIRMED; The appeal of the plaintiffs is DISMISSED. So ordered. Dated: August 7, 1979 /s/___________________________________ ELMER H. VIOLETTE JUSTICE, SUPERIOR COURT -8-