Maine State Employees Association v. State of Maine, Nos. 81-44 & 81-56, 4 NPER 20-12043 (Sept. 21, 1981), aff'd CV-81-472, Rev'd sub nom. State of
Maine v. Maine State Employees Association, 443 A.2d 948 (Me. 1982);
Board Decision on Remand Case No. 81-56 (May 21, 1982). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No.'s 81-44 & 81-56 Issued: September 21, 1981 _____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) ) STATE OF MAINE, ) ) Respondent, ) ) and ) DECISION AND ORDER ) STATE OF MAINE, ) ) Complainant, ) ) v. ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Respondent. ) _____________________________________) Case No. 81-44 is a prohibited practices case, filed pursuant to 26 M.R.S.A. 979-H(2) on March 3, 1981 by the Maine State Employees Association (MSEA). MSEA alleges in its complaint that the State of Maine (State) violated 26 M.R.S.A. 979-C(1)(E) and (A) by refusing and continuing to refuse to negotiate in good faith with respect to reclassifications and reallocations proposed by MSEA. The State filed a response to the complaint on March 24, 1981, denying that it had violated any provisions of the State Employees Labor Relations Act (Act), 26 M.R.S.A. 979, et seq. A pre-hearing conference on Case No. 81-44 was held on April 27, 1981, Alternate Chairman Donald W. Webber presiding. On April 28, 1981, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. Hearings were held on May 13 and May 27, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Wallace J. Legge. MSEA was represented by John J. Finn, Esq. and the State by -1- Michael C. Ryan, Esq. Full opportunity was given to examine and cross-examine witnesses, present evidence, and make argument. Both parties filed post- hearing briefs, which have been duly considered by the Board. Case No. 81-56 is also a prohibited practices case, filed pursuant to 26 M.R.S.A. 979-H(2) on May 21, 1981 by the State of Maine (State). The State alleges in its complaint that the Maine State Employees Association (MSEA) violated 26 M.R.S.A. 979-C(2)(B) by insisting on bargaining reclassifica- tions and reallocations to the point of impasse, when said topics are allegedly not mandatory subjects of bargaining. MSEA filed a response to said complaint on June 12, 1981, denying that it violated any provisions of the State Employees Labor Relations Act (Act), 26 M.R.S.A. 979, et seq. At the Board's hearing of May 27, 1981, the Board, over the objection of MSEA, granted the State's motion to consolidate Case No. 81-56 with Case No. 81-44. The evidentiary hearing on Case No. 81-56 was, however, scheduled for a later date to allow MSEA ample opportunity to file its answer therein and to prepare its case. Since Case No. 81-56 involved only one additional issue, from those in Case No. 81-44, the Board, without objection from either party, waived the pre-hearing conference in said case. A hearing was held, on Case No. 81-56, on June 17, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Wallace J. Legge. The State was represented by Michael C. Ryan, Esq. and MSEA by John J. Finn, Esq. Full opportunity was given to examine and cross-examine witnesses, present evidence, and make argument. Both parties filed post-hearing briefs, which have been duly considered by the Board. JURISDICTION MSEA is the bargaining agent within the meaning of 26 M.R.S.A. 979-H(2) for the state employee Administrative Services; Operations, Maintenance and Support Services; Law Enforcement Services; Professional and Technical Ser- vices; and Supervisory Services bargaining units. The State is the public employer as defined in 26 M.R.S.A. 979-A(5). The jurisdiction of the Maine Labor Relations Board to hear this case(s) and to render a decision and order herein lies in 26 M.R.S.A. 979-H. -2- FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. The Complainant Maine State Employees Association (MSFA), having offices and a place of business at 65 State Street, Augusta, Maine, 04330, is the certified/recognized bargaining agent of the State employee Administrative Services; Operations, Maintenance and Support Services; Law Enforcement Ser- vices; Professional and Technical Services; and Supervisory Services bargain- ing units. 2. The Respondent State of Maine is the public employer as defined by the State Employees Labor Relations Act (Act), 26 M.R.S.A. 979-A(5). 3. MSEA and the State entered into negotiations on November 5, 1980, jointly for the Administrative Services; Operations, Maintenance and Support Services; Law Enforcement Services; and Professional and Technical Services bargaining units and, on November 6, 1980, for the Supervisory Services bargaining unit for collective bargaining agreements to succeed agreements expiring on June 30, 1981. 4. A number of bargaining sessions were held, prior to the date of filing of the complaint herein, and negotiations continued, subsequent to said filing. 5. The State, alleging that the same are not mandatory subjects of bargaining in accordance with section 979-D(1)(E) of the Act, has refused and continues to refuse to negotiate in good faith with respect to reclassifica- tions and reallocations proposed by MSEA. 6. Classification and reclassification are the assignment or reassign- ment, respectively, of a position or group of positions to an occupational classification which is appropriate for compensation and employment purposes. 7. Allocation and reallocation are the assignment or reassignment, respectively, of a classification to the appropriate grade in the compensation plan. DECISION The basic assumption, underlying the State's position in this matter, is that collective bargaining is so repugnant to merit principles; and, more specifically, to the particular merit system in place to effectuate said principles; that reclassifications and reallocations are not mandatory subjects of bargaining. -3- In order to logically analyze the merits of the State's premise, the Board will examine the details of its argument as presented its briefs, in the order in which they have been presented. I. Are MSEA's Proposals for Reallocations or Reclassifications with Realloca- tion Mandatory Subjects of Bargaining? MSEA cites several cases, decided pursuant to the provisions of the National Labor Relations Act, (N.L.R.A.) specifically 29 U.S.C.A. 158(d) in support of its position that reclassifications and reallocations are mandatory subjects of bargaining. The National Labor Relations Board (N.L.R.B.) has held that "wages," a mandatory subject of bargaining, includes within its meaning reclassifications and reallocations; thereby making the latter two topics mandatory subjects of bargaining. Florida Steel Corp., 235 N.L.R.B. 1010, 1014 (1978), Limpco Mfg. Inc., 225 NLRB 987 (1976), Bio-Medical Applica- tions of New Orleans, Inc., 233 NLRB 1467, 1468 (1977), and Anchortank, Inc., 239 NLRB 430, 433 (1978). In reviewing the N.L.R.B.'s Anchortank, supra, decision; the United States Court of Appeal for the Fifth Circuit held that the employer violated the N.L.R.A. when it made a unilateral change in its job classification system, after a representation election but before resolution of a dispute concerning some challenged ballots. The Court stated: "Petitioner does not contest the fact that it made unilateral changes in terms and conditions of employment that are subjects of mandatory bargaining. Rather it argues that it had no duty to maintain the status quo with regard to mandatory subjects until the challenges to the election were resolved and the union was certified. This argument is foreclosed by decisions of this circuit, for we have repeatedly held that an employer who refused to bargain by making unilateral changes in mandatory subjects 'on the ground that an election is invalid does so at his own risk; if the election challenge proves fruitless, an order by the Board based on the refusal to bargain will be enforced.' [Citations Omitted]. The Board properly found that petitioner violated section 8(a)(1), (5) by altering working conditions that are sub- ject to mandatory bargaining." Anchortank, Inc. v. N.L.R.L., -4- 618 F.2d 1153, 1156-1157 (5 Cir. 1980). Other Courts of Appeal decisions holding that reclassifications and reallocations are mandatory subjects of bargaining are N.L.R.B. v. Hoppes Mfg. Co., 170 F.2d 962, 964 (6 Cir. 1948) and N.L.R.B. v. Berkley Machine Works, 189 F.2d 904, 905 and 907-908 (4 Cir. 1951). The rationale underlying the above decisions is set forth in Latin Watch Case Co., Inc., 156 NLRB 203 (12/31/65). In that case the union demanded the right to bargain over the establishment of the classification system and the employer refused to discuss the same. The N.L.R.B. stated: "There can be no doubt that job classifications are a mandatory subject for bargaining under the (N.L.R.A.]. Other mandatory subjects of bargaining such as seniority and pay rates depend in part at least upon a resolution of the proper job classifications and in fact it has been held that the employer is required to furnish the bargaining agent, on request, with sufficient data on job classifications-to permit the Union to bargain understandingly and prepare for coming negotiations. J.I. Case Company v. N.L.R.B., 253 F.2d 149 (C.A.7); Aluminum Ore Company, 39 NLRB 1286, Curtis-Wright Corporation, Wright Aeronautical Division, 145 NLRB 152." 156 NLRB at 208. The State offers no contrary authority, in support of its position, but contends that the above precedent is inapposite to the present case. The allegation, which is the heart of the State's claim that N.L.R.A.-based cases are irrelevant here, is that the operative language of the State Employees Labor Relations Act (S.E.L.R.A.) is different from that in the National Act. The relevant language of the N.L.R.A., 29 U.S.C.A. 158, is as follows: " 158. Unfair labor practices (a) It shall be an unfair labor practice for an employer -- . . . (5) to refuse to bargain collectively with the representa- tives of his employees, subject to the provisions of Section 159(a) of this title. . . . (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reason- able times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising there- under, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession . . ." [Emphasis added]. -5- The relevant language of the S.E.L.R.A. is as follows: " 979-D. Obligation to bargain 1. Negotiations. On and 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 obligation: . . . E. (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 relation- ship between the employer and employees shall be the subject of collective bargaining, except those matters which are prescribed or controlled by public law. Such matters appro- priate for collective bargaining to the extent that they are not proscribed or controlled by public law include but are not limited to: (a) Wage and salary schedules to the extent they are incon- sistent with rates prevailing in commerce for comparable work within the State; . . ." [Emphasis added]. The State argues that the language of 979-D(1)(E)(1)(a) is limiting on the term "wages" in the main paragraph, therefore, the statu- tory language of the two Acts is different and authority under the N.L.R.A. is not relevant to the case now before the Board. A plain reading of 979- D(1)(E)(1) is that the words "include but are not limited to," which modify 979-D(1)(E)(1)(a), are terms of elucidation and not terms of limitation. Sub-sections (a) through (f), of 979-D(1)(E)(1), contain a partial list of the topics which are made mandatory subjects of bargaining by the main sub- section. Said sub-section are merely illustrative of the types of mandatory subjects, contemplated in the main sub-section, but are explicitly not an exhaustive listing thereof. The operative language, in both the N.L.R.A. ("wages, hours, and other terms and conditions of employment") and in the S.E.L.R.A. ("wages, hours, working conditions"), outlining the mandatory subjects for collective bar- gaining, are essentially identical. Having determined that the effective provisions of the State and Federal Acts are the same, the Board will look to the parallel federal authority for guidance in resolving the question now before us. Baker Bus Service v. Edward H. Keith, Me., 428 A.2d 55, 56 n.3 (1981). In N.L.R.B. v. Berkeley Machine Works, 189 F.2d 904 (1951), the Fourth Circuit Court of Appeals stated: "And we think also that the refusal of the company to bargain with respect to merit increases in pay was a refusal to bargain within the -6- meaning of the statute and the order of this court. Merit pay where there are a number of employees means more than a gratuity or bonus paid to an occasional employee whom the company wishes to favor on account of his loyalty or efficiency. It means necessarily the form- ulation and application of standards; and such standards are proper subjects of collective bargaining. Collective bargaining with respect to wages might well be disrupted or become a mere empty form if the control over the wages of individual employees were thus removed from the bargaining area. Directly in point is the decision of the Court of Appeals of the Sixth Circuit in N.L.R.B. v. J. H. Allison & Co., 6 Cir., 165 F.2d 766, 768, 3 A.L.R.2d 990, where the court speaking through Judge Martin said: 'Respondent argues that it is common practice for employers to grant merit increases; and that, unless there is an express stipulation in the bargaining agreement to the contrary, the employer may at any time during the term of the contract give an individual employee a merit increase within 'the network' of the wage scale negotiated between the employer and the union representing its employees as bargaining agent. It is pointed out that, should there be a charge of discrimination - which there is not in this case - the matter would fall within the ambit of grievance procedure. 'In our judgment, the argument of the respondent will not stand. We think the logical deduction to be drawn from the opinions of the Supreme Court that by virtue of the National Labor Relations Act the obligation of the employer to bargain collectively with representatives of its employees with respect to wages, hours and working conditions, includes the duty to bargain with such representatives concerning individual merit wage increases. The labelling of a wage increase as a gratuity does not obviate the fact that a gratuitous increase on the basis of merit does, in actuality, effectuate changes in rates of pay and wages, which are by the Act made the subject of collective bargaining.' " 189 F.2d, at 907-908. We adopt the Berkeley rationale, as well as that stated in Latin Watch Case Co., supra, and find that, in the case of the state employees represented by MSEA, the nexus between job classifications/allocations and the concept of "wages" in the Act is so inter-related as to make reclassifications and reallocations mandatory subjects of bargaining; at first blush and without considering the unique limiting language of the Act discussed below. II. Is the Reclassification and Reallocation of Positions In State Service Prescribed Or Controlled by Public Law? The State Employees Labor Relations Act provides that topics, which would otherwise be mandatory subjects of bargaining, are excluded from collective -7- bargaining if they are "prescribed or controlled by public law. 26 M.R.S.A. 979-D(1)(E)(1). The test for whether a particular topic is prescribed or controlled by public law was set forth by the Maine Supreme Judicial Court in State v. Maine Labor Relations Board, Me., 413 A.2d 510 (1980). Both parties, recognizing the importance and sweep of said decision, have cited the Board to its precepts. The State uses the case as authority for the general proposi- tion that matters; including wages, hours, or working conditions; cannot be negotiated to a resulting agreement, if said agreement is violative of or inconsistent with existing public law. 413 A.2d, at 515. The Law Court, however, went on to define what is meant by the term "prescribed or controlled by public law" in the Act. The Court was presented an alleged conflict between the public employer's statutory authority, permitting operations during certain hours, and the employees' collective bargaining rights, over the question of holidays. Mr. Chief Justice McKusick, writing for the Court and adopting decisions from other jurisdictions stated: "'The mere fact that the (legislature] granted the prerogative (to set business hours] to the employer does not exclude the possibility that the decision to exercise that prerogative was influenced by the collective bargaining process.' Pennsylvania Labor Relations Board v. State College Area School Dist., [461 Pa. 494], at 509, 337 A.2d [262], at 269 [(1975)]. As the New York Court of Appeals said in Board of Education v. Associated Teachers of Huntington, 30 N.Y.2d 122, 129, 331 N.Y.S.2d 17, 23, 282 N.E.2d 109, 163 (1972). "there is no reason why the mandatory provision (for collective bargaining] should be limited, in any way, except 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." 413 A.2d, at 515-516, [Additions, other than to citation, by Court]. A plain reading of the Court's decision is that subjects are negotiable unless said negotiation is clearly prohibited by a section of public law. The State avers that Title 5 M.R.S.A. 593, paragraph 3, prescribes and controls reclassifications and reallocations, to the extent that any nego- tiated reclassifications and reallocations would allegedly be inconsistent with said statute. The full text of the paragraph in contention is as follows: "Any request for classification of positions, the allocation of new positions on the reallocation of existing positions in the classi- fied service or the unclassified service, shall be processed by the Commissioner of Personnel and the commissioner's determination made within 45 days from the date of filing the request with the Department of Personnel. Any employee or appointing authority that is a party to the request may appeal to the State Personnel Board within 10 days after the expiration of the 45 days allotted for the process of such requests for hearing and review. The board shall examine and review such appeal and make such changes as provided -8- -8- in this section. The board's decision in the appeal shall be given within 30 days after the hearing on the appeal, has been concluded." This statute does not, on its face, meet the "prescribed or controlled" test as set forth in State v. Maine Labor Relations Board, supra. The above statute provides that reclassification and reallocation decisions shall be made by the Commissioner of Personnel, however, it does not preclude collec- tive bargaining imput into said decision. Like the power granted to the State Liquor Commission which was considered by the Court in State v. Maine Labor Relations Board, the above power "must be exercised within the environment of collective bargaining as to 'wages, hours, [and] working conditions.'" 413 A.2d, at 515. Title 5 M.R.S.A. 593 predates adoption of the State Employees Labor Relations Act. In order to place such pre-bargaining statutes within the context of collective bargaining, we must consider the operative effect given to other such enactments within the existant relationship between the State and the employees' bargaining agents, as protected by the provisions of the S.E.L.R.A. Title 5 M.R.S.A. 631 grants to the Commissioner of Personnel the power and duty to "prescribe or amend rules and regulations relative to," among others: "B. Classification of positions in the classified service; C. Compensation plan; . . . 6. Probationary period; . . . I. Reinstatement; J. Demotion; K. Suspension; layoff and dismissal; . . ." and "L. leave of absence, resignation, hours of service, vacation and sick leave; . . ." Section 631 is the enactment giving specific powers to the Commissioner of Personnel; unlike Section 593 which, within the statutory framework, is placed in the Chapter dealing with the powers and duties of the State Personnel Board. The S.E.L.R.A., in section 979-D(1)(E)(1)(f), has explicitly made the foregoing list of rules and regulations subject to collective bargaining, with one significant exception. That exception is in the area of rules and regulations pertaining to probationary employees. It is clear by implication that, in reviewing the rule-making powers and duties of the Commissioner of Personnel, the Legislature intended, through the adoption of 26 M.R.S.A. 979-E(1)(E)(1)(f), to make all of the topics listed in section 631, other than the rules and regulations relating to probationary employees, mandatory subjects of bargaining, if said subjects fall within the scope of wages, hours, or working conditions. A second pre-bargaining statute which should be considered, in the present content, is Title 5 M.R.S.A. 634. Said statute provides that the Commissioner of -9- Personnel shall determine the compensation plan, including the rate of pay, for state employees. The question of wages is explicitly a mandatory subject of bargaining and the Commissioner must make his salary recommendations to the legislature within the context of the collective bargaining relationship. Since the list of rules and regulations in Title 5 M.R.S.A. 631, together with the provisions of 634, cover almost all of the significant aspects of wages, hours, and working conditions; said statutes must, like Section 593, be read and given operative effect within the context of collective bargaining. To hold otherwise would mean that the S.E.L.R.A. has little or no force and effect. Such an effect is totally contrary to the legislative intent, expressed in Title 26 M.R.S.A. 979, to promote collective bargaining for terms and conditions of employment in the public sector. State v. Maine Labor Relations Board, supra, at 514. Our review of the statutes leads us to the conclusion that, where the legislature has intended to except wages, hours, and working conditions from bargaining such as in the case of probationary employees, it has done so specifically and explicitly. We find no such specific and explicit exception in the case of reclassifications and reallocations. Finally, the legislative history of the statute adopting the salary schedule developed in the Hay classification study, P.&S.L. 1976, Ch. 147, makes it clear that the legislature intended that reclassifications and reallocations would be subject to collective bargaining. The legislative remarks of both Representative Spencer and Representative Tierney refer to the negotiability of the job classifications and salary allocations as the means of correcting problems which might develop therewith, once the system was put into practice. The above statutory analysis, within the scope of the test set forth by the Law Court in State v. Maine Labor Relations Board, supra, together with the legislative history of the enactment adopting the salary schedule, developed pursuant to the Hay classification study, mandate our holding that reclassifications and reallocations are not "prescribed or controlled by public law." III. Would the Negotiation Over Reclassification and Reallocation Requests Be In Derogation Of Or Contravene The Spirit and Intent Of Merit System Principles? Title 26 M.R.S.A. 979-D(1)(E)(2) provides, in relevant part: "Paragraph E subparagraph (1) shall not be construed to be in derogation of or contravene the spirit and intent of the merit system principles . . ." -10- Prior to applying the above test, the Board must first determine the nature of "merit system principles." Black's law Dictionary (5th Ed. 1979) defines the relevant terms as follows: "Merit system. System used by federal and state governments for hiring and promoting governmental employees to civil service positions on the basis of compe- tence. Principle. A fundamental truth or doctrine, as of law; a com- prehensive rule or doctrine which furnishes a basis or origin for others; a settled rule of action, pro- cedure, or legal determination. A truth or proposi- tion so clear that it cannot be proved or contra- dicted unless by a proposition which is still clearer. That which constitutes the essence of a body or its constituent parts. That which pertains to the theo- retical part of a science. Further light is shed on the statutory term when one examines the historical basis therefor. The first Civil Service Reform Act, enacted by Congress in 1871, was adopted as a response to the graft and corruption rampant in the administration of President U.S. Grant. The Act's underlying premise was that government employees should be hired and promoted on the basis of competitive written and practical examinations, reflecting the individuals' ability to do the work expected. The practice, prior to that time, had been for the pre- vailing candidates for President or Governor to appoint their relatives, political supporters, or friends to national or state positions, respectively. The example of the Federal Government was subsequently followed by the states, as the basis for their personnel laws, i.e., 5 M.R.S.A. 671. Historically, therefore, civil service or merit system replaced the "spoils system" as the principal means of hiring and promoting governmental employees. As the State argues, since the time when the forerunner to 5 M.R.S.A. 671 was first adopted some merit principle has been in operation in the area of reclassifications and reallocations. We hold that the concept of "merit system principles" contemplated in section 979-D(1)(E)(2), supra, is the broad notion of an individual's job skills being the determinative factor for the purposes of hiring and promotion in state service. Within the ambit of "merit system principles" are: (1) hiring and promotion decisions being based on the competence of the individual applicants or employees, and (2) internal equity in the compensation scale, -11- based on the idea of equal pay for equal work and, correspondingly, a graduated scale of higher pay for more difficult or demanding work or for work involving a greater degree of responsibility. The statutory term "merit system principles" should not be confused with or interchanged for the particular merit system in place at any given time. The former is a set of broad basic doctrines while the latter is a specific set of rules and procedures used to translate said basic theory into actual practice. The answer to the question which we are now discussing, therefore, does not turn on the nature of the particular merit system in place, whether it be the former "whole-job-ranking method" or the present Hay Guide Chart Job Profile Method. The controlling factor, in our analysis of the issue presented, is the essence of the merit system and not the system itself. The State, at this point, returns to its basic assumption that collective bargaining is so repugnant to merit principles that reclassifications and reallocations cannot possibly be mandatory subjects of bargaining. No analysis is offered to demonstrate how or to what extent collective bargaining would be in derogation of or contravene merit system principles. In the face of the State's conclusionary allegation are two significant countervailing facts: (1) merit systems, including their component classifications and allocations, are mandatory subjects of bargaining in that portion of the private sector covered by the National Labor Relations Act (including all of the largest corporations operating in the American economy) and (2) the Federal Standards for a Merit System of Personnel Administration explicitly recognize that collective bargaining can be consistent with the merit system principle of internal equity. Federal Register, February 16, 1979, Part III, 900.604-1(a) and 900.604-1(b)(2). Finally, the State argues that internal equity would be lost, if reclassifications and reallocations were bargained collectively. The testi- mony presented at the hearing, however, was to the effect that, prior to the first round of bargaining with MSEA, the State granted its employees an across-the-board flat dollar amount or percentage pay increase, whichever resulted in a higher increase being put into effect for each employee. The first round of bargaining between the parties resulted in adoption of a similar pay increase package. Mr. Don Wills, Merit System Coordinator of the Department of Personnel, testified that the above type of salary increases tended to flatten the salary practice line because lower grade employees, who received the flat dollar amount wage increase, received a -12- larger percentage wage increase than did the higher level employees. The end result was that; although the difference in difficulty, expertise, or responsibility involved between the lower and higher level positions remained the same, the difference in salaries, between the lower and higher level employees, became less. Mr. Wills further testified that there are now several salary practice lines for the employees in state service. The ori- ginal ideal of internal equity has, therefore, been severely compromised through actual practice, including both unilateral action on the part of the State and the results of bilateral negotiations between the parties. We fail to see how collective bargaining and merit system principles are inherently incompatible. The California Supreme Court, in Pacific Legal Foundation v. Brown, ___P.2d___, 907 GERR 48 (1981), was presented an alleged conflict between the merit system prescribed by that state's constitution and the provisions of the California State Employer - Employee Relations Act. The Court stated: "We recognize, of course, that theoretically the product of the collective bargaining process may possibly in specific instances con- flict with the merit principle of employment embodied in article VII [of the State Constitution, which mandates the hiring and promotion of state employees on the basis of merit system principles]. Such a conflict would be most evident, for example, if the Governor and an exclusive bargaining representative agreed to a memorandum of under- standing purporting to authorize hiring or promotion on a politically partisan basis. The provisions of SEERA, however, neither explicitly nor implicitly authorize any such encroachment on the merit princi- ple of article VII through the collective bargaining process. On the contrary, in drafting SEERA the legislature expressly reaffirmed the primacy of the merit principle of employment and crafted the statute carefully so as to minimize any potential conflict with such principle. Thus, section 3512, the preamble of SEERA, states in relevant part: 'It is the purpose of this chapter to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between the state and public employee organizations . . . Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle in state employment, nor to limit the entitlements of state civil service employees . . . provided by Article VII of the California Constitution or by laws or rules enacted pursuant thereto.' ___P.2d..., 907 GERR, at 53. [Emphasis and deletions by the Court, addition by the Board]. Since the section of the California SEERA is similar to the restrictive language of 25 M.R.S.A. 979-D(1)(E)(2) and since the merit system principles, referred to by the California Supreme Court in the above- cited case are analogous -13- to those in effect in Maine, we adopt the analysis of the said Court in resolving the question under consideration. We hold that negotiation over reclassifications and reallocations is not in derogation of nor does it contravene the spirit and intent of merit system principles. IV. Would Negotiation Over Reclassifications and Reallocations Be In Derogation Of Or Contravene The Spirit And Intent Of the Personnel Laws? The relevant language of Title-26 M.R.S.A. 979-D(l)(E)I2), raised by the State as an alleged bar to the negotiability of reclassifications and reallocations reads as follows: "Paragraph E subparagraph (1) shall not be construed to be in derogation of or contravene the spirit and intent of the . . . personnel laws." The State argues that the spirit and intent of sections 593, 631, 633 and 752 of Title 5 M.R.S.A. would be transgressed, if reclassifications and reallocations are held to be mandatory subjects of bargaining. In part II of this decision, we have reconciled sections 593 and 631 with the provisions of the State Employees Labor Relations Act and we have seen that their spirit and intent will not be compromised through bargaining. We will consider sections 633 and 752 here. Title 5 M.R.S.A. 633 states as follows: "It shall be the duty of the commissioner to ascertain and record the duties and responsibilities of all positions in the service and to establish classes for such positions, in conformity with regulations adopted therefor by the com- missioner as provided in section 631. The titles so classi- fied and So established shall be used in all personnel, accounting, budget, appropriation and financial records of all state departments, commissions and institutions." This enactment's intent can be placed into proper prospective by examining it together with the surrounding sections in the statutory framework. The class- ifications mentioned therein are explicitly made contingent upon the establishment of rules and regulations therefor, under the authority of section 631. Comparing the language of section 631 with that of the State Employees Labor Relations Act, 979-D(1)(E)(1)(f), we have found that said rules and regulations have been made mandatory subjects of bargaining thereby. Secondly, section 634, which was adopted by the legislature together with section 633, appears to grant to the Com- -14- missioner of Personnel the authority to unilaterally set the wages for all state employees. Just as section 634 must be read in the collective bargain- ing context, so too must section 633. The subsequent adoption of the state employees bargaining law, together with section 633's contingent relationship with section 631, lead us to find that the Commissioner is to create or amend said classifications through the collective bargaining process. To hold otherwise, would mean that the comprehensive provisions of the personnel law, covering as they do almost all aspects of the relationship between the State and its employees and giving all authority therein to the State, preclude all significant collective bargaining. Such a result would be contrary to the legislative intent expressed in the later-adopted State Employees Labor Relations Act, 26 M.R.S.A. 979. Finally, the State argues that bargaining over reclassifications and reallocations would be in derogation of or contravene Title 5 M.R.S.A. 752. As the State points out in its brief, this section excludes "matters of classification and compensation" from the authority of the State Employees Appeals Board. We fail to see either the significance or the relevance of this provision to the question at hand. Title 5 M.R.S.A. 593 provides one avenue of appeal, in this area, and the parties, through their collective bargaining agreements, have agreed to another such avenue. Apparently, the State sees little significance or merit in its allegation, since it is mentioned in one brief sentence and no effort is made to establish the relevance of the averment. Our review of the personnel laws reveals that their spirit and intent is contained in three separate sections of Title 5 M.R.S.A., to wit: 553, 558 and 671. Title 5 M.R.S.A. 553 states: "In carrying out chapters 51 to 67 [civil service provi- sions], no discrimination shall be made on account of political or religious opinions or affiliations or because of race or national origin, sex or marital status or age or physical dis- ability, unless based upon a bona fide occupational qualification." Title 5 M.R.S.A. 558 reads as follows: "The final decision of whether a person will be hired or promoted by the State cannot be made in part or wholly by a person related to the job candidate by consanguinity, or affinity, within the 4th degree. The State Personnel Rules shall insure that this section will not deprive any applicant or employee of full consideration for hiring or promotion." -15- The relevant portion of Title 5 M.R.S.A. 671 provides: "Appointments to and promotions in the classified service shall be made according to merit and fitness, from eligible lists prepared upon the basis of examinations, which so far as practicable shall be competitive. No person shall be appointed, transferred, promoted or reduced as an officer, clerk or employee or laborer in the classified service in any manner or by any means other than those prescribed in chapters 51 to 67 and in the rules made in pursuit to chapters 51 to 67." These three sections codify the merit system principles discussed in section III of this decision. Our analysis and reasoning contained in part III, supra, therefore, applies equally here. The results of collective bargaining may, if unchecked, transgress the spirit and intent of the personnel laws, however, negotiations over reclassifications and reallocations are not inherently repugnant to said laws. The limiting language contained in section 979-D(1)(E)(2) is sufficient to preserve the integrity of the spirit and intent of both the merit system principles and personnel laws, when applied on a case-by-case basis to particular reclassification and reallocation results being sought through bargaining. We hold, in light of the above disussion, that negotiation over reclassifications and reallocations would not be in derogation of or contrary to the spirit and intent of the personnel laws. V. Conclusion On The Issue Of Negotiability of Reclassifications and Reallocations. Reclassifications and reallocations are, at first blush and without considering the unique limiting language of the State Employees Labor Relations Act, mandatory subjects of bargaining. The reclassification and reallocation of positions in state service are not prescribed or controlled by public law. Negotiation over reclassifications and reallocations would not be in derogation of or contravene the spirit and intent of the merit system principles and personnel laws. Reclassifications and reallocations are, under the provisions of the State Employees Labor Relations Act [26 M.R.S.A. 979- D(1)(E)(1)], mandatory subjects of bargaining. The State, therefore, violated 26 M.R.S.A. 979-C(1)(E) by refusing to bargain collectively with MSEA over MSEA's proposals for reclassifications and reallocations. VI. The Impasse Issue. A party may properly insist, to the point of impasse, on bargaining over mandatory subjects, however, it is a per se violation of the State Employees Labor Relations Act to insist, to impasse, on bargaining over non-mandatory subjects. S.A.D. -16- #22 Non-Teachers Association v. S.A.D. #22 Board of Directors, M.L.R.B. No. 79-32, at p. 5 (7/30/79). This rule of law was fully outlined and explained in Maine State Employees Association v. State of Maine, M.L.R.B. No. 80-09 (12/5/79), and bears repeating here. In Case No. 80-09, we wrote: "The law is well-settled that a party commits a per se violation of the duty to bargain by insisting to impasse that a non-mandatory subject of bargaining be negotiated. See, e.q., N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958); Teamsters Local 48 v. Town of Falmouth, MLRB Nos. 79-10 and 79-18, at 6-7 (1979). The rationale underlying this venerable labor law principle is that insistence upon bargaining over non-mandatory subjects of bargaining 'is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining.' 356 U.S. at 349. . . . The mandatory subjects of bargaining about which a party is obligated to bargain, and about which a party may lawfully insist on bargaining to impasse, are of course those subjects involving wages, hours, working conditions and contract grievance arbitration." Having decided, in Case No. 81-44, supra, that MSEA's proposals to negotiate over reclassifications and reallocations are mandatory subjects of bargaining; we need not reach the issue as to whether or not the parties have reached impasse over said proposals. Because of the mandatory nature of the subjects, MSEA was within its rights to insist thereon to impasse, if the parties are indeed at that point. Whether or not the parties are at impasse, the State has a duty, under 26 M.R.S.A. 979-C(1)(E), to bargain in good faith over said proposals. We will, therefore, dismiss the State's complaint in Case No. 81-56. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of Title 26 M.R.S.A. 979-H, it is ORDERED: 1. That the State of Maine, and its representatives and agents, cease and desist from refusing to bargain with the Maine State Employees Association, over said Association's proposals for reclassifications and reallocations of positions in state service, within ten calendar days after receipt of a written request to meet therefor. -17- 2. That the State of Maine take the affirmative action of commencing negotiations, over reclassifications and reallocations of positions in state service, upon request for the five state employee bargain- ing units represented by the Maine State Employees Association. 3. That the complaint of the State of Maine in M.L.R.B. Case No. 81-56 be and hereby is dismissed. Dated at Augusta, Maine, this 21st day of September, 1981. MAINE LABOR RELATIONS BOARD The parties are advised of their right pursuant to 26 M.R.S.A. Section 979-H(7) to seek a re- /s/_________________________________ view by the Superior Court of this Edward H. Keith decision by filing a complaint in Chairman accordance with Rule 808 of the Rules of Civil Procedure within 15 days after receipt of this decision. /s/_________________________________ Don R. Ziegenbein Employer Representative /s/_________________________________ Wallace J. Legge lallace J. Legge Employee Representative -18- _____________________