State of Maine v. MSEA and MLRB, CV-86-353, reversing No. 84-17, affirmed, State of Maine v. MSEA et al., 538 A.2d 755 (Me. 1988) STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. CIVIL ACTION Docket No. CV-86-353 STATE OF MAINE ) ) Plaintiff ) ) v. ) OPINION AND ORDER ) MAINE STATE EMPLOYEES ) ASSOCIATION and MAINE LABOR ) RELATIONS BOARD ) ) Defendant ) This matter is before the court on the State's appeal from a decision by the Maine Labor Relations Board that the State has a duty to bargain with the Maine State Employees Association over certain pension and retirement issues addressed by the State retirement law. The appeal is brought pursuant to Rule 80C M.R. Civ. P. and 26 M.R.S.A. 979-H(7). Basically, the State objects that the subjects which it has been ordered to bargain over are subjects prescribed or controlled by State law and thus removed from the collective bargaining process by 26 M.R.S.A. 979-D(1) (E) (1) which provides that "... all matters relating to the relationship between the employer and employee shall be the subject of collective bargaining, except those matters which are prescribed or controlled by public law." The Maine Labor Relations Board determined, as the Maine State Employees Association contends, that although the disputed subjects are addressed by State law, the obligation to bargain on these issues remains because retirement and pension issues are required -1- subjects of collective bargaining under the State Employees Labor Relations Act, 26 M.R.S.A. 979, et seq. Facts While the case involves essentially legal issues, some detail in review of the facts is important to understand the case and the mootness issue raised by the court. In late 1982 the State and the Maine State Employees Association ("MSEA") commenced negotiations over collective bargaining agreements to succeed agreements expiring on June 30, 1983. Under the State Employees Labor Relations Act, the State is the public employer, 26 M.R.S.A. 979-A(5), and MSEA is the certified bargaining agent, 26 M.R.S.A. 979-A(1), for five State employee bargaining units, i.e. the Administrative Services, Law Enforcement Services, Operations, Maintenance and Support Services, Professional and Technical Services and Supervisory Services bargaining unites. The negotiations pertained to all five units. The MSEA proposals for negotiation included several proposals which addressed retirement benefits. During the negotiations and in the course of dispute resolution procedures MSEA limited its proposals on retirement benefits to four items. The first proposal was to make institutional employees involved in prison management eligible for retirement benefits equal to one-half their average final compensation upon completion of twenty (20) years of State service and attainment of age fifty (50). Under that proposal, the employees would contribute to the Maine State Retirement 2 System at the rate of 7.5 percent of their compensation. The State objected to the proposal, stating that it was prescribed or controlled by 5 M.R.S.A. 1095 and 1121 (1983 Supp.) which set terms of service, age and contribution requirements for State employees. The second proposal was the same as the first except that it applied to employees in the Law Enforcement Services bargaining unit, and provided that the employees would be eligible to retire upon completion of twenty (20) years of service regardless of their age. The State objected to this proposal on the same grounds as the first. The third proposal was to base the benefits payable to survivors of State employees on the employees' average final compensation and years of State service. The State objected that this proposal was prescribed or controlled by 5 M.R.S.A. 1124(1)(B)(1) (1983 Supp.) The fourth and final proposal was to make employees eligible to purchase credits for military service after 10 years rather than 15 years in State service. The State objected that this proposal was prescribed or controlled by 5 M.R.S.A. 1094(13) (1983 Supp.) The State and MSEA held many bargaining sessions regarding successor collective bargaining agreements. Ultimately, MSEA petitioned the Maine Labor Relations Board for fact-finding to aid in resolution of the parties' disputes, pursuant to 26 M.R.S.A. 979-D(3). 3 Upon completion of fact-finding the parties returned to bargaining and then entered mediation. With a number of issues unresolved, MSEA filed a request with the Executive Director of the MLRB to order interest arbitration under 26 M.R.S.A. 979-D(4). On November 28, 1983 the Executive Director declared that an impasse existed and issued an order requiring arbitration. Throughout the negotiations and the dispute resolution procedures the State declined to bargain over MSEA's proposals on retirement issues, urging that the four retirement related proposals were non-negotiable. On December 29, 1983, MSEA filed a complaint with the MLRB asserting that its proposals on retirement issues were mandatory subjects of bargaining and that the State's refusal to bargain over them violated 26 M.R.S.A. 979-C(1)(E). The State contended in response that MSEA's retirement proposals were not mandatory subjects of bargaining and counterclaimed that MSEA violated 26 M.R.S.A. 979-C(2) (B) by insisting on negotiating over the proposals to the point of impasse. The Board deferred deciding the case until the Supreme Judicial Court ruled on another case involving the issue of whether retirement benefits are a mandatory subject of bargaining. In the case then before the Law Court the Board had ruled that certain retirement benefits were not lawful subjects of collective bargaining because they were "prescribed or controlled by public law." MSEA v. State of Maine, MLRB Case No. 82-05 (Dec. 22,1 982). The Board's decision had been affirmed in relevant part by 4 the Superior Court. MSEA v. State and MLRB, Sup. Ct. Ken. Cty. CV-83-09 (June 28, 1983). The Law Court reversed the Superior Court on other grounds without reaching the "prescribed or controlled" issue. State of Maine v. Maine State Employees Association, 499 A.2d 1228 (Me. 1985). Although the decision of the Law Court was not rendered until October, 1985, the parties agreed before the MLRB that the instant case was not moot because the issue presented here would in all likelihood arise in future negotiations. Thus, the MLRB issued its decision on July 17, 1986. MSEA v. State of Maine, MLRB No. 84-17 (July 17, 1986) The Board reversed its ruling in Case No. 82-05 and held that MSEA's four proposals on retirement benefits were mandatory subjects of bargaining. As a result, the Board ruled that the State violated 26 M.R.S.A. 979-C(1)(E) by refusing to negotiate with MSEA over those proposals. The Board ordered the State to cease and desist from failing and refusing to negotiate over such proposals concerning retirement benefits as were made by MSEA in this case. The State then petitioned this Court for review of the Board's decision. While the Board had the matter under consideration, the Legislature, in 1985, significantly revised the veterans and other members buy back and service credit provisions of 5 M.R.S.A. 1094 by amendments adopted in P.L. 1985 c. 365. Then, in 1986, before the final MLRB decision, the Legislature approved a complete recodification of the State employee retirement laws, P.L. 1986 5 c. 801, to be effective January 1, 1987. One focus of contention in the recodification was amendment of the 20 year retirement eligibility which significantly restricted future eligibility for 20 year retirement. Twenty year retirement issues are now addressed in 5 M.R.S.A. 17708-17712 and 17851 (1987 Supp.). The recodification also completely changed the wording of the law related to military service credits which now appears at 5 M.R.S.A. 17760 (1987 Supp.). However, the requirement that a State employee have at least 15 years of otherwise creditable service to purchase military service credits remains essentially unchanged. 5 M.R.S.A. 17760(2)(A) (1987 Supp.). The death benefits recodification also indicates significant changes in wording, but not, apparently, significant changes in benefits, compare 5 M.R.S.A. 1124(1)(B)(1) (1983 Supp.) with 5 M.R.S.A. 17953 (1987 Supp.). Discussion The case before the court involves a controversy about negotiations leading to a 1983 collective bargaining agreement which has since been superceded by a separate and independent collective bargaining agreement. Further, the controversy involved statutes cited by the MLRB and the parties which have since been recodified and in some important areas significantly revised. With this summary of events, it would appear that the case is moot, but mootness is not always what it appears. 6 Controversies which are capable of repetition, but which do not easily lend themselves to final judicial review as they arise may be addressed, even if moot, if the controversy is one which is continuing between the parties or highly likely to arise again. Lynch v. Town of Kittery, 473 A. 2d 1277 (Me. 1984); Blance v. Alley, 404 A. 2d 587 (Me. 1979); compare Sanford Teachers Ass'n. v. Sanford School Committee, 409 A.2d 244 (Me. 1979). In the instant case, there can be no doubt that the controversy between the State, the MSEA and the MLRB regarding bargainability of issues explicitly addressed in the retirement statute is a continuing one. Further, the controversy here involves specific numbers addressed in the retirement statutes. There is no issue here involving an ambiguous section of the statute which may or may not prescribe or control bargaining issues depending upon how that section is interpreted. Here there is explicit conflict between the numbers specified by law and numbers the MSEA is seeking to establish in the bargaining process. Were MSEA successful in the bargaining process, legislative change would be mandatory to bring the results of bargaining into conformance with the law. Further, although the statutes at issue have been changed, in at least two instances, the military service buy back question and the survivor benefits question, the statutory changes involve more form than substance in relation to the issues about which the MSEA seeks to bargain. For example, the 15-year State service requirement to qualify for military service buy backs has remained unchanged throughout the entire period of dispute. 7 Accordingly, as to the survivor benefits and military service credit purchases issues, the court determines that the exceptions to the normal mootness rule would apply because the dispute at issue is a continuing one, escalated by the MLRB's findings in favor of the MSEA. The relatively short times in which bargaining is normally attempted to be accomplished, and the relatively long time which a matter takes to wend its way through the processes of the MLRB, make matter in controversy one which is unlikely to be easily resolvable by judicial review within normal processes before the controversy becomes moot. Further, the issue is one where there is a significant public interest in resolution. Accordingly, the exception to the mootness rule applies. See Blance v. Alley, supra. The continuing viability of the dispute as to efforts by the MSEA to expand eligibility for 20 year retirement is more problematic. The recent legislative action in enactment of P.L. 1986, c. 801 indicates a clear direction to restrict eligibility for 20 year retirement which is inconsistent with MSEA's efforts in this regard. Accordingly, the likelihood of such expansion of 20 year retirement efforts arising in the future is less certain, the battle having been fought and lost in the Legislature. However, that point is inconsequential for purposes of this opinion. The clear question presented by this case is whether explicit numbers set out in the retirement statutes which relate to benefit levels and qualifications for retirement may be subject to collective 8 bargaining, or whether bargaining on such issues is expressly precluded by 26 M.R.S.A. 979-D(1)(E)(1) which excludes from bargaining matters prescribed or controlled by public law. On this question, the court has carefully reviewed the MLRB decision and order of July 17, 1986, and the court is cognizant of the MLRB's considerable skill and expertise in this area, and the normal care with which the Board addresses the issues before it. However, when read in light of the explicit language of the "prescribed or controlled" law, and recent interpretations such as Maine Department of Inland Fisheries and Wildlife v. Maine State Employees Association, 503 A.2d 1285 (Me. 1986), it is difficult to understand how the MLRB could have rationally reached their result. The touchstone for the MLRB's determination appears to be the conclusion, with which this court does not quarrel, that the State Employees Labor Relations Act authorizes and in fact mandates bargaining regarding retirement and pension issues. State law rather evidently authorizes bargaining on pension and retirement issues, just as it authorizes bargaining on wages, hours, working conditions, and disciplinary procedures, but all subject to the "prescribed or controlled" limitation. In interpreting statutes, it is well established that specific limitations prevail over general grants of authority. That is certainly the case here. The prescribed or controlled language would be meaningless if read, as it was read in this instance by the MLRB, to be 9 overridden by general authority to bargain on all wages, hours, and working conditions issues. In fact, the direction of analysis must be the reverse, determining general authority to bargain on wages, hours, and working conditions subject to the limitation that issues explicitly determined by statute are not bargainable. Here, there is no dispute that the issues are explicitly determined by statute. All of the issues in dispute relate to specific numbers established in the retirement statutes about which MSEA seeks to bargain. If anything is prescribed or controlled by statute, these matters are prescribed or controlled by statute. There can be no basis for a suggestion that the statute at issue may be ambiguous when a specific number in a statute is the focus of dispute. The 15 year service prerequisite for purchase of military service credits is prescribed or controlled by 5 M.R.S.A. 17760-2-A. That 15 year limit is not bargainable. Likewise, the survivor benefit levels established pursuant to 5 M.R.S.A. 17953 are not bargainable. A simple reading of these sections, along with the "prescribed or controlled" section of the State Employees Labor Relations Act should establish that point beyond dispute. If the statutes are to be given their plain meaning or even their reasonable inter- pretation, no other result is possible. 10 Therefore, the court Orders and the entry shall be: 1. Appeal SUSTAINED. 2. The Order of the Maine Labor Relations Board, dated July 17, 1986, is VACATED. 3. REMANDED to the Maine Labor Relations Board for such proceedings, if any, as may be necessary to resolve any outstanding issues. Dated: January 17, 1987 /S/------------------------------- Donald G. Alexander Justice, Superior Cour