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.

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     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).

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              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

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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).

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     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.,

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              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.

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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).

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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

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