State of Maine v. MSEA, Decision on Remand No. 81-56, original Board decision in Nos. 81-44 & 81-56 affirmed by Superior Court CV-81-472, reversed and remanded by Law Court in 443 A.2d 948 (Me. 1982) STATE OF MAINE MAINE LABOR RELATIONS BOARD CASE NO. 81-56 Issued: May 21, 1982 _________________________ ) STATE OF MAINE, ) ) Complainant, ) ) v. ) DECISION AND ORDER ON REMAND ) MAINE STATE EMPLOYEES ) ASSOCIATION, ) ) Respondent. ) _________________________) This is a prohibited practices case, remanded to the Maine Labor Relations Board ("Board") on May 17, 1982 by Order of the Kennebec Superior Court in State of Maine v. Maine State Employees Association and Maine Labor Relations Board v. State of Maine, Nos. CV-81-472 and CV-81-499. The Court mandated in its Order as follows: "2. The decision and order of the Maine Labor Relations Board in their docket number 81-56 is REMANDED to the Maine Labor Relations Board consistent with the opinion of the Law Court." JURISDICTION The Maine State Employees Association ("MSEA") is the bargaining agent within the meaning of 26 M.R.S.A. Section 979-H(2) for the state employee Administrative Services; Professional and Technical Services; Operations, Maintenance and Support Services; Law Enforcement Services; and Supervisory Services bargaining units. The State of Maine ("State") is the public employer as defined in 26 M.R.S.A. Section 979-A(5). The jurisdiction of the Maine Labor Relations Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Section 979-H. FINDINGS OF FACT Upon review of the entire record, the Board finds: -1- 1. The Complainant MSEA, 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 Services; Professional and Technical Services, and Supervisory Services bargaining units. 2. The Respondent State is the public employer as defined by the State Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 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 original complaint herein, and negotiations continued, subsequent to said filing. 5. The State, alleging that the same are not mandatory subjects of bargaining under Section 979-D(1)(E) of the Act, refused and continued to refuse to negotiate with respect to reclassifications 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. 8. MSEA insisted, to the point of impasse, that the State bargain over its aforesaid reclassification and/or reallocation proposals. DECISION The Supreme Judicial Court, in its Decision in the case of State of Maine v. Maine State Employees Association and Maine Labor Relations Board, Me., ___ _____ A.2d ________, Decision No. 2917, Law Docket No. Ken-82-7 (4/6/82), held that the reclassification and/or reallocation bargaining proposals, offered by the MSEA, were not mandatory subjects of bargaining under the State Employees Labor Relations Act, 26 M.R.S.A. Section 979, et seq. -2- The issues, on remand, herein are: (1) whether or not, as a matter of fact, the MSEA insisted, to the point of impasse, to bargain over its reclassification and/or reallocation proposals, and (2) if so, did such conduct violate the Act. We have found, based upon our review of the entire record herein, that the MSEA did insist, to the point of impasse, to bargain over its aforesaid proposals. In MSEA v. State of Maine, M.L.R.B. Case No. 80-09 (12/5/79), we held as follows: "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.g., 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 insist- ence 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." MSEA v. State of Maine, supra, at 4. Since the MSEA insisted on negotiating its non-mandatory bargaining subject proposals to the point of impasse it has committed a per se violation of the Act. 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 26 M.R.S.A. Section 979-H, it is ORDERED: That the Maine State Employees Association, and its agents and members, cease and desist from insisting that the State of Maine negotiate over its reclassification and/or reallocation bargaining proposals for various state employees. Dated at Augusta, Maine, this 21st day of May, 1982. MAINE LABOR RELATIONS BOARD The parties are advised of their right /s/________________________________ pursuant to 26 M.R.S.A. Section 979-H Edward H. Keith, Chairman (7) to seek a review by the Superior Court of this decision by filing a com- plaint in accordance with Rule 80B of /s/________________________________ the Maine Rules of Civil Procedure Don R. Ziegenbein, Employer within 15 days of the receipt of this Representative decision. /s/________________________________ -3- Harold S. Noddin, Employee Representative -3-