AFSCME Council 93 v. Governor McKernan and State of Maine, MLRB No. 91-18
(Employee Representative Lambertson dissenting in part, May 31, 1991), 
Decision and Order on Motion for Stay, No. 91-18, June 5, 1991, Motion for 
Stay of Final Agency Action Denied, No. CV-91-208 (Me. Super. Ct., Ken. Cty., 
July 25, 1991), MLRB decision affirmed, No. CV-91-208 (Nov. 27, 1991
), Board decision vacated sub nom Bureau of Employee Relations v. 
AFSCME Council 93, 614 A.2d 74 (Me. 1992)

Kennebec, ss.                                                  SUPERIOR COURT

State of Maine
Governor McKernan

       vs.                                                        ORDER

American Fed. of State
County And Municipal Employees Council 93, and
Maine Labor Relations Board


     This cause came on for hearing, and was argued by counsel, upon the motion 
of the [State for a stay of final agency action.]

     IT IS ORDERED that: [the Court has considered the memoranda
filed, the arguments of counsel at hearing and the
cases cited.  In particular, the Court has reviewed Sanford
411 A.2d 1010 at 1012-1015 and Footnote #6 in 
Maine State Emp Ass'n v State Dev. Office 499 A.2d 
165 at 168.  The Court is convinced that the proper
criteria for granting a stay is as set forth in 
the State Employees Labor Relations Act, 26 MRSA Sec.
979.  To obtain a stay, it must be clearly shown
that " . . . substantial and irreparable injury will 
be sustained . . . ."  There is no showing of any 
irreparable injury here.
     The entry will therefore be:  Motion for stay

Dated:  [7/25/91]              /s/[Bruce W. Chandler]______________
			     Justice, Superior Court


STATE OF MAINE                       SUPERIOR COURT
KENNEBEC, SS                         CIVIL ACTION
				     DOCKET NO. CV-91-208

STATE OF MAINE                   )
and                              )
GOVERNOR MCKERNAN,               )
		    Petitioners, )
	  v.                     )     DECISION AND ORDER
COUNCIL 93                       )
and                              )
		    Respondents. )

     This matter is before the court for review of final agency
action pursuant to M.R. Civ. P. 80C.  Briefs were submitted by the
parties and oral arguments were presented on October 31, 1991.
This court affirms the decision of the Maine Labor Relations

     The State appeals from a determination by the MLRB that the
State violated 26 M.R.S.A. 979-C(1) (E) by refusing to bargain
with AFSCME over unilateral modifications to the pay dates as
required by Section 979-D(1)(E)(1).  The State asserts that the
Board exceeded its authority and committed an error of law by
finding that AFSCME had not waived its statutory right to bargain
over these changes.

     The pivotal issue before the court is whether AFSCME, in the
"zipper" clause of the bargaining agreement, clearly and
unmistakably waived its statutory right to bargain over payroll
changes, or as AFSCME contends, the right to bargain was retained
in the Article 28 Maintenance of Benefits Clause.

     The court's standard of review is limited to whether the
governmental agency abused its discretion, committed an error of
law, or made findings not supported by substantial evidence on the
record.  Lewiston Raceway Inc. v. State Harness Racing
Commission, 593 A.2d 663 (Me. 1991).

     I.  The instant case involves a clash of two clauses: a
general waiver clause[fn]2, or "zipper" clause, and an alleged

     1.            Maintence of Benefits

     With respect to negotiable benefits, terms and
     conditions affecting members of this unit, which are not
     covered by the Agreement, but which are presently
     provided pursuant to law, written regulations, personnel
     rules, written directives, or special orders, the State
     agrees to make no changes without appropriate prior
     consultation and negotiation with the union.

     2.           Embodiment of Agreement

     The parties acknowledge that during the negotiations
     which preceded this Agreement, each had the unlimited
     right and opportunity to make demands and proposals with
     respect to any subject or matter not removed by law from
     the area of collective bargaining and that the
     understandings and agreements arrived at by the parties
     after the exercise of that right and opportunity are set
     forth in this Agreement.  Therefore, the State and
     Council #93, AFSCME, AFL-CIO, for the life of this
     Agreement, each voluntary and unqualifiedly waive the
     right, and each agrees that the other shall not be
     obligated to bargain collectively with respect to any

exception to the waiver clause contained in Article 28 - the
maintenance of benefits clause.

     A zipper clause "purports to close out bargaining during the
contract term and to make the written contract the exclusive
statement of the parties' rights and obligations."  R. Gorman,
Basic Text on Labor Law, 455 (1976).  A waiver clause "furthers
the basic federal labor policy of promoting industrial peace as
well as contract stability."  American League of Professional
Baseball Clubs and National League of Professional Baseball Clubs,
N.L.R.B. General Counsel Memorandum, text reprinted in full at 99
LRRM 1724, 1725-26 (1978).

     However, when relying on a claim of waiver of a statutory
duty to bargain, an employer has the burden of proving a clear
relinquishment; silence in the collective bargaining agreement
does not constitute a waiver.  N.L.R.B. v. Challenge-Cook Bros. of
Ohio, Inc., 843 F.2d 230, 233 (6th Cir.1988).  It has frequently
been held that a waiver of a statutory right must be clear and
unmistakable.  State v. Maine State Employees Association, 499
A.2d 1228, 1232 (Me. 1985).

     Although parties may contractually waive the statutory right
to mid-term negotiations, albeit in clear and unequivocal terms,
the Law Court has held that statutory rights can be expressly

     subject or matter referred to or not referred to,
     covered or not covered in this Agreement, even though
     such subjects or matters may not have been within the
     knowledge or contemplation of either or both of the
     parties at the time they negotiated and signed this


preserved, a general waiver clause notwithstanding.  State of
Maine v. Maine State Employees Association, 499 A.2d 1228 (1985)
(The statutory duty to negotiate over the impact of such decisions
could have been preserved in the contract).

     The union's intent, clearly evinced in Article 28, was to
preserve negotiable benefits, terms and conditions of employment
that were provided by law at the time the agreement was signed.
Bi-weekly pay periods were, and are, provided pursuant to law.  5
M.R.S.A. 10.  By the plain language of Article 28, the State
agreed to make no changes with respect to these subjects without
prior consultation and negotiation.  It is with clear and
unmistakable language that the parties agreed to preserve, not
waive, the duty to negotiate with regard to extension of pay

     In determining whether Article 28 is an express exception to
the zipper clause it is the intent and understanding of the
parties that governs.  The intent of the parties must be
ascertained from an examination of the whole instrument.  The
court sees no way to interpret the two clauses other than that the
parties plainly agreed to exempt proposed changes to benefits,
terms and conditions provided pursuant to law from the general
waiver clause.  The union expressly extracted this agreement from
the State.  There is no indication that AFSCME agreed to submit to
arbitration on this issue.  Rather, the State unequivocally agreed
to negotiate any contemplated alterations to matters provided
pursuant to law.

     The State would have the court find that its failure to
negotiate is merely a contractual violation and should result in
the contractual remedy of an arbitration grievance proceeding.
The State relies on State of Maine, supra, for this proposition.
That case, however, is distinguishable from the present situation.

     First, the unilateral action on the part of the State in that
case involved agency reorganization specifically permitted under
the contract.  In the present case, the unilateral action is not
authorized by the contract and, moreover, directly contravenes 5
M.R.S.A. 10. "[T]here can be little doubt that where an employer
unilaterally effects a change which has a continuing impact on a
basic term or condition of employment, more is involved than just
a simple default in a contractual obligation."  R. Gorman, supra,
at 421.  See also Kinard Trucking Co. 152 N.L.R.B. 1157 (1965);
California Blowpipe & Steel Co., 218 N.L.R.B. No. 117 (1975).
     Second, the Law Court pointed out that the right to bargain
had been reserved by the union for certain other actions, but no
such reservation had been requested for the impact of
organizational changes.  The Law Court found that the right to
negotiate the impact of the organizational changes had been waived
by the language of the waiver clause (neither party will attempt
to compel mid-term negotiations on "matters that could have been
raised during the negotiations").  The right to negotiate the
impact of the relevant changes could clearly "have been raised
during the negotiations" since the right to reorganize was
specifically retained by the employer and the changes were


consequently anticipated.  Failure to specifically reserve this
right indicated a desire to waive bargaining over the impact of
these changes.  Because no express exception had been reserved, it
was deemed waived.  AFSCME, on the other hand, expressly reserved
the right to negotiate over matters provided pursuant to law.
This is presumably what the Law Court would recommend in order to
preserve the statutory right of negotiation.

     Third, as noted, the State's unilateral action here blatantly
disregards 5 M.R.S.A. 10.  The extension of pay dates was
implemented without first seeking legislative change.  The State
attempts to justify the refusal to negotiate by asserting that pay
dates are "prescribed or controlled by law.[fn]3"  However, the purpose
of the prescribed-and-controlled exception to the requirement to
bargain "is merely to prevent a term of a collective
bargaining agreement from being in violation of existing law."

     3    979-D. Obligation to bargain
     1.  Negotiations.  On or after January 1, 1975, it shall be
     the obligation of the public employer and the bargaining
     agent to bargain collectively. "Collective bargaining"
     means, for the purpose of this chapter, their mutual
     . . .
	  E. To confer and negotiate in good faith:

	       (1)  To confer and negotiate in good faith with
	       respect to wages, hours, working conditions and
	       contract grievance arbitration, except that by such
	       obligation neither party shall be compelled to
	       agree to a proposal or be required to make a
	       concession.  All matters relating to the
	       relationship between the employer and employees
	       shall be the subject of collective bargaining,
	       except those matters which are prescribed or
	       controlled by public law . . . .


State v. M.L.R.B., 413 A.2d 510, 515 (1980).  If anything, the
prescribed-and-controlled provision undermines the position of the
State:  "The parties to collective bargaining are prohibited from
negotiating an agreement, even though it concerns 'wages, hours,
or working conditions,' where that agreement would be in violation
of or inconsistent with any statutory directive."  Id. at 515.
Thus, collective bargaining that would extend the business hours
of state liquor stores beyond the statutorily prescribed limit
would be prohibited.  State v. M.L.R.B. 413 A.2d at 515.
Extension of pay dates would likewise be inconsistent with a
statutory directive, and therefore rather than exempting the state
from negotiating, would preclude negotiation on this subject
altogether.  "[T]here is no reason why the mandatory provision for
collective bargaining) should be limited, in any way, excect in
cases where some other applicable statutory provision explicitly
and definitively prohibits the public employer from making an
agreement as to a particular term or condition of employment."
Id. at 516 (emphasis added) .

     Thus the prescribed-and controlled provision is not intended
to provide a means of escaping the mandate to bargain.  AFSCME
preserved its statutory privilege to bargain with respect to items
provided pursuant to law against unilateral action by securing a
contract concession from the State to negotiate certain matters.
It is clear that the State agreed to refrain from seeking a change
in 5 M.R.S.A. 10 unless it bargained to do so and/or pursued a
legislative amendment.


     II.  In State v. MSEA, the Law Court rejected a "sword-shield
analysis" of zipper clauses because a contractual analysis led
unequivocally to a finding of waiver.  Application of a "sword-
shield" analysis would have effectively negated an otherwise valid
contractual provision.  Id at 1232.  However, in the present
circumstance the application of this doctrine will not have this
effect because Article 28, a valid contractual provision,
specifically prohibits unnegotiated, unilateral action of this

     "The zipper clause has been held not to cede clearly and
unequivocally to the employer the power to make unilateral changes
in the status quo, and thus possibly modify . . . practices to the
detriment of the employees, without notice and bargaining with the
union."  R. Gorman, supra, at 472.

     The parties agreed to waive the right to bargain as to
matters contained or not contained in the contract with the
exception of matters provided pursuant to law.  The State is now
attempting to utilize the zipper clause to avoid its obligation
under Article 28 to bargain over a mid-term adjustment of
benefits, terms and conditions provided pursuant to law.  Article
17, however, does not authorize the State to institute unilateral
changes both detrimental to the union and in contravention of the
legislative mandate that state employees shall be paid bi-weekly.

     In N.L.R.B, v. Southern Materials Co., 447 F.2d 15 (1971),
referred to as persuasive in State v. MSEA, the Court determined

that the right to mid-term negotiations had been waived regardless
whether the Christmas bonuses were included within a maintenance
of benefits provision vel non.  The Court went on to point out,
however, that if the maintenance of standards clause did include
Christmas bonuses, the company would not have the right to
discontinue them unilaterally.  It would only have the right to
decline the union's request to reconsider them during the life of
the contract, and conversely the union could decline a similar
request by the company.  Id. at 18.  The right to mid-term
negotiations had been waived, not the right to continue to receive
the bonus.

	  There is a clear distinction between a
	  situation where a party to a contract wishes
	  to preserve the status quo and one where a
	  party wishes to change it.  In those cases
	  involving a unilateral change, the employer
	  relies on the existence of a zipper clause in
	  the collective bargaining agreement not simply
	  to establish that the contract precludes
	  bargaining over new subjects during the term
	  of the contract, but also, and more
	  importantly, to establish that the contract
	  gives the employer unfettered power to change
	  any term or condition not contained in the
	  contract.  The Board has clearly stated that a
	  zipper clause will not ordinarily be construed
	  to grant the employer such unfettered power.
	  American League of Professional Baseball Clubs
	  and National League of Professional Baseball
	  Clubs, N.L.R.B. General Counsel Memorandum,
	  text reprinted in full at 99 LRRM 1724, 1725-
	  26 (1978).

     Article 17 waives the obligation to bargain collectively with
respect to any subject or matter referred to or not referred to,
covered or not covered, in the Agreement.  Article 28 represents
a commitment by the State to make no changes in benefits, terms


and conditions not covered by the Agreement but provided pursuant
to law without consulting and negotiating with the union.  The
State cannot now use the general waiver of Article 17 to avoid its
specific agreement in Article 28.

     Therefore, in conclusion, the court finds that the State was
obligated to negotiate in accordance with the clear terms of the
contract.  Thus, MLRB did not err as a matter of law in failing to
find that AFSCME had waived its statutory right to bargain over

     Therefore, it is hereby ORDERED and the entry shall be:

     The decision of the Maine Labor Relations Board is AFFIRMED.
Dated:  November 27, 1991                /s/__________________________
					Justice, Superior Court