State of Maine v. MSEA and MLRB, CV-83-09 affirming (mostly) No. 82-05; 
judgment vacated in State of Maine v. MSEA et al., 499 A.2d 1228 (Me. 1985) 
reversing No. 82-05 on waiver issue.


STATE OF MAINE                         SUPERIOR COURT
KENNEBEC, ss.                          CIVIL ACTION
                                       Docket No. CV-83-09


STATE OF MAINE,         )
                        )
           Plaintiff    )
     vs.                )
                        )
MAINE STATE EMPLOYEES   )
ASSOCIATION and         )
MAINE LABOR RELATIONS   )
BOARD,                  )
           Respondents  )

------------------------              Docket No. CV-83-14
MAINE STATE EMPLOYEES   )
ASSOCIATION,            )
                        )
           Plaintiff    )
     vs.                )
                        )
STATE OF MAINE and      )
MAINE LABOR RELATIONS   )
BOARD,                  )
                        )
           Respondents  )               DECISION


     These cases are before the Court on consolidated appeal
from a decision of the Maine Labor Relations Board resolving a
number of disputes about the bargainability of certain work
change procedures and impacts resulting from reorganization,
reclassifications and reductions in force at the Department of
Environmental Protection, the Department of Human Services and
the State Board of Cosmetology.

     At oral argument, the parties agreed that issues addressed
by the Maine Labor Relations Board relating to grandfather rights
for certain employees have been rendered moot by subsequent

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collective bargaining activities.  However, the remainder of
the actions taken by the Maine Labor Relations Board are viable
disputes, continuing before the Court for decision despite
the fact that the collective bargaining agreement has been
entered into subsequent to the collective bargaining agreements
at issue in this proceeding.

     The Maine Labor Relations Board has rendered an extensive
decision on this matter which outlines the facts and has given
careful and considerate attention to the positions of the parties
on the various issues and has extensively reviewed the law
applicable to each point.  The contentions of the parties before
the Maine Labor Relations Board were essentially similar to the
contentions of the parties before this Court.  With two exceptions,
the Court determines (a) that the findings of the Maine Labor
Relations Board are fully supported by the evidence in the record
and (b) that the conclusions based on those findings represent a
proper application of the law.  It would serve no purpose for this
Court to review the matter in an extensive opinion which would
simply adopt language similar to the opinion already issued by
the Maine Labor Relations Board.  Instead, the Court adopts by
reference the opinion of the Maine Labor Relations Board.  There
are two exceptions to this adoption by reference.

     First, the Court determines that the Maine Labor Relations
Board erred in determining that the staffing levels of hazardous
waste cleanup crews were a bargainable item.  The Management Rights

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Article LVI of the Supervisory Services collective bargaining
agreement is rather explicit that staffing levels for various
activities are reserved to the State and are not bargainable.
No exception can be found for staffing levels of activities
which may affect the employees' health or safety - however
broadly or narrowly construed those terms might be.  Certainly
the very general terms of the Health and Safety Article XXXV
cannot prevail over the specific reservation to the State in
Article LVI to determine the size and composition of the work-
force.

     Second, the Court determines that it was error for the
Maine Labor Relations Board to conclude that the decision to
relocate the Board of Cosmetology Inspector's Headquarters from
Augusta to Portland was a bargainable item.  At oral argument,
the Maine State Employees Association conceded that the provision
of the Maine Labor Relations Board order - paragraph 4(a) - was
in excess of authority of the Maine Labor Relations Board.
The Maine State Employees Association urged that the order simply
be modified to limit its scope to the impact of a transfer of
headquarters.  However, there is no question that, from the terms
of the Maine Labor Relations Board decision, at pages 24 and 25,
and its order, Section 4(a), that it determined that the question
of location of headquarters was bargainable.  This was error in
light of the specific reservation to the State to determine the
"mission, location and size" of all agencies in the Management
Rights Article LV of the Professional and Technical Services
agreement.

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     Other than these two points, the decision of the Maine
Labor Relations Board will be affirmed.

     Therefore the Court ORDERS and the entry shall be:

     In Docket No. 83-09:

     1.  Appeal sustained in part.

     2.  Paragraphs l(e) and 4(a) of the order of the
         Maine Labor Relations Board are reversed.

     3.  Remanded to the Maine Labor Relations Board
         with direction that its order be amended to
         recognize that the staffing levels of hazardous
         waste cleanup crews and the location of the Board
         of Cosmetology Inspector's Headquarters are not
         subjects of mandatory collective bargaining.

     4.  In all other respects, the order of the Maine
         Labor Relations Board is affirmed.

     In Docket No. 83-14:

     1.  Appeal denied.

     2.  Order of the Maine Labor Relations Board is
         affirmed.

Date:  June 28, 1983               /s/____________________________
                                         DONALD G. ALEXANDER
                                      Justice, Superior Court
               
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