MSEA v. State of Maine, No. 84-17, rev'd State of Maine v. MSEA and MLRB,
CV-86-353 , judgment affirmed, State of Maine v. MSEA and MLRB, 
538 A.2d 755 (Me. 1988),

STATE OF MAINE                             MAINE LABOR RELATIONS BOARD
                                           Case No. 84-17
                                           Issued:  July 17, 1986
____________________________________
                                    )
MAINE STATE EMPLOYEES ASSOCIATION,  )
                                    )
                      Complainant,  ) 
                                    )
                v.                  )           DECISION AND ORDER
                                    )
STATE OF MAINE,                     )
                                    )
                      Respondent.   )
____________________________________)

     The issue presented in this prohibited practices case is whether
certain proposals concerning retirement, made by the Maine State
Employees Association (hereinafter referred to as "Union") during
negotiations for a successor collective bargaining agreement, are
"matters prescribed or controlled by public law" within the meaning of
26 M.R.S.A.  979-D(1)(E)(1) (Supp. 1985).  We hold that they are not
such matters and that, by failing and refusing to negotiate over those
proposals, the State of Maine ("Employer") violated the duty to
bargain created by 26 M.R.S.A.  979-C(1)(E) (1974).

     The Union filed its complaint on December 29, 1983, alleging that
the Employer violated 26 M.R.S.A.  979-C(1)(A) and (E) (1974) by
refusing to bargain over the retirement proposals.  The Employer filed
an answer and counterclaim on January 20, 1984, alleging that the
Employer was,not obliged to bargain about retirement matters because
such topics are prescribed or controlled by statute and asserting that
the Union had violated 26 M.R.S.A.  979-C(2)(B) (1974) by insisting
to impasse that the Employer bargain over the retirement proposals.

     A prehearing conference on the case was held on January 30, 1984,
Alternate Chairman Donald W. Webber presiding. on February 1, 1984,
Alternate Chairman Webber issued a Prehearing Conference Memorandum
and Order, the contents of which are incorporated herein by reference.

     Pursuant to agreement of the parties mentioned in the Prehearing
Conference Memorandum and order, the Labor Relations Board ("Board")

                                 -1-

issued an Interim Decision and order, on February 9, 1984, the con-
tents of which are incorporated herein by reference.  Finding that the
case presented no factual issues requiring an evidentiary hearing, the
Board ordered the parties to file briefs addressing the legal issue in
controversy.  Briefs were timely filed by both parties.  On May 16,
1984, oral argument was held before the Board, Chairman Sidney W.
Wernick presiding, with Employer Representative Thacher E. Turner and
Employee Representative Harold S. Noddin.  The'Union was represented
at that time by John J. Finn, Esq., and the Employer was represented
by Peter H. Stewart, Esq.

     Pending before the Supreme Judicial Court at that time was an
appeal from the Board's decision in Maine State Employees Association
v. State of Maine, MLRB No. 82-05, slip op. (Dec. 22, 1982).  Since
one of the issues in that case was that now before the Board, the
Board decided to defer decision of the present case until the Law
Court decided the appeal from MLRB No. 82-05.  The Court issued its
opinion on October 29, 1985, reversing the Board's decision on other
grounds and vacating the Board's order without addressing the question
now before us.  State v. Maine State Employees Association, 499 A.2d
1228 (Me. 1985).  Subsequent to our issuance of a decision and order
on remand in MLRB No. 82-05 on December 18, 1985, in accordance with
the order of the Superior Court of December 2, 1985, the Board's staff
asked counsel for the parties to ascertain whether they wished the
Board to go forward with consideration of the instant case.
On March 24, 1986, counsel for the parties observed that, although the
successor collective bargaining agreement had been reached, the
question at issue would invariably arise in future negotiations and
the Board should review this matter and issue a decision and order
herein.[fn]1

     Since a majority of current Board members did not participate in
the original oral argument on the merits in this matter, a second oral
_______________

     1 A complaint alleging a refusal to bargain in violation of 26
M.R.S.A.  979-D(1)(E) is not rendered moot by the subsequent execu-
tion of a collective bargaining agreement.  Teamsters Local Union No.
48 v. City of Bangor, MLRB No. 79-29 (Interim Order), slip op. at 1-2
(March 2, 1979).

                                 -2-

argument was scheduled to be conducted by the Board on May 20, 1986.
By joint motion dated May 5, 1986, the parties requested that the
Board cancel the scheduled oral argument and decide the case on the
basis of the existing record.  The Board, consisting of Chairman
Edward S. Godfrey, Employer Representative Thacher E. Turner, and
Employee Representative George W. Lambertson, considered the briefs
previously submitted and the transcript of the May 16, 1984 oral argu-
ment in reaching its decision and order in this matter.

                             JURISDICTION

     The Maine State Employees Association is the certified bargaining
agent, within the meaning of 26 M.R.S.A.  979-H(2) (Supp. 1985), for
the State employee Administrative Services; Operations, Maintenance
and Support Services; Law Enforcement Services; Professional and
Technical Services; and Supervisory Services bargaining units.
The State of Maine is the public employer, within the definition of
26 M.R.S.A.  979-A(5) (Supp. 1985), of the employees included in
those bargaining units.  The jurisdiction of the Maine Labor Relations
Board to hear this case and render a decision and order herein lies
in 26 M.R.S.A.  979-H (1974 and Supp. 1985).

                           FINDINGS OF FACT

     Upon review of the entire record, the Labor Relations Board
finds:

     1. The Maine State Employees Association is the certified
bargaining agent, within the meaning of 26 M.R.S.A.  979-H(2) (Supp.
1985), for the State employee Administrative Services; Operations,
Maintenance and Support Services; Law Enforcement Services;
Professional and Technical Services; and Supervisory Services
bargaining units.

     2. The State of Maine is the public employer, within the defini-
tion of 26 M.R.S.A.  979-A(5) (Supp. 1985), of the employees included
in the bargaining units mentioned in the preceding paragraph.

     3. During December of 1982, the Union and the Employer began
negotiations for collective bargaining agreements to succeed

                                 -3-

agreements which were due to expire on June 30, 1983.  Each of the
agreements covers one of the five State employee bargaining units
represented by the Union.

     4. Among the bargaining proposals presented by the Union for
inclusion in the successor collective bargaining agreements were a
number pertaining to the subject of State employee retirement.

     5. During the course of,the negotiations, the Union modified its
retirement proposals, limiting them to the following:

    "A.  Institutional employees in prisoner management to
         receive one-half (1) average final compensation
         after completion of twenty (20) years of creditable
         service and attainment of age fifty (50).  Affected
         employees to contribute at rate of 7.5% of earnable
         compensation.

    "B.  Law enforcement employees to receive one-half (f)
         average final compensation after completion of
         twenty (20) years of creditable service without
         an age limlt.  Affected employees to contribute
         at the rate of 7.5% of earnable compensation

    "C.  Active employee survivor benefits to be based on
         average final compensation and years of service.

    "D.  Military service credits to be available for pur-
         chase after ten (10) years of creditable service."

     6.  The parties held a number of bargaining sessions and then
resorted to the impasse resolution procedures set forth in 26 M.R.S.A.
 979-D(2)-(4) (1974 and Supp. 1985).  The parties participated in
mediation, had completed fact-finding, and, at the time this case was
filed, were preparing to begin interest arbitration.

      7. Throughout the course of the negotiations and of the impasse
resolution procedures, the Employer refused to bargain over the
Union's retirement proposals and the Union insisted that the
Employer negotiate over said proposals.


                               DECISION

     The State Employees Labor Relations Act provides that it is
unlawful for either the Employer or the Union to refuse to negotiate
over the mandatory subjects of bargaining. 26 M.R.S.A.  979-D(1)(E)

                                 -4-

(1) (Supp. 1985).  Equally violative of the statutory duty to bargain
is a party's insistence, to the point of impasse, on negotiating over
non-mandatory subjects of bargaining.  Discussing the latter point,
the Board has stated:

          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 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.

Maine State Employees Association v. State of Maine, MLRB No. 80-09,
slip op. at 4 (Dec. 5, 1979); cited with approval in State of Maine
v. Maine State Employees Association, MLRB No. 81-51 (Decision and
Order on Remand), slip op. at 3 (May 21, 1982).

     Although it is often referred to as an impasse resolution tech-
nique, parties need not be at impasse to participate in mediation, and
either party may request the intervention of a mediator at any time
during negotiations.  Woolwich School Committee v. Woolwich Teachers
Association, MLRB No. 80-55, slip op. at 6 n.2 (Feb. 27, 1981).  We
have held, however, that negotiating parties must be at impasse to
participate in the fact-finding process.  M.S.A.D. No. 43 Board of
Directors v. M.S.A.D. No. 43 Teachers Association, MLRB Nos. 79-36,
-39, -45, and -47, slip op. at 12-13 (Aug. 24, 1979); affirmed in
relevant part M.S.A.D. No. 43 Teachers Association v. M.S.A.D. No. 43
Board of Directors, No. CV-79-541, at 5-6 (Me. Super. Ct., Kennebec
Cty., July 8, 1980); affirmed on other grounds 432 A.2d 395 (Me.
1981).  In S.A.D. No. 20 Non-Teachers Association v. S.A.D. No. 20
Board of Directors, MLRB No. 79-32, slip op. (July 30, 1979), we
discussed the statutory basis for our holding that impasse is achieved
with the beginning of the fact-finding process as follows:

          Fact-finding is the usual starting point of impasse.
     resolution.  That the parties "are unable to effect a
     settlement" of their bargaining is in fact the criterion
     for invocation of this process.  26 M.R.S.A.  965(3)(A).

                                 -5-                                             -5-

          Indeed, we find here that impasse occurred at the
     initiation of fact-finding.  Thus, by forcing the issue
     to fact-finding, the Directors committed a violation of
     their duty to bargain.

Id. at 8 (footnote omitted).  Although the decision was issued under
the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.  961,
et seg., the language of the statute relevant here, 26 M.R.S.A. 
979-D(3)(A) (Supp. 1985), is identical with the section of the
Municipal Act cited above.  The rationale for the above holding is
equally applicable here.

     The Union demanded and the Employer refused to negotiate over the
Union's retirement proposals throughout the fact-finding process and
into interest arbitration.  Since it is a per se violation of the duty
to bargain to either refuse to negotiate over mandatory subjects or to
insist, to the point of impasse, upon bargaining over a non-mandatory
subject and since the parties maintained their respective positions
past the point of impasse, the remaining question is whether the
Union's retirement proposals are mandatory subjects of bargaining,
within the meaning of 26 M.R.S.A.  979-D(1)(E)(1).  If its retirement
proposals are not mandatory subjects, the Union violated the duty to
bargain by insisting on negotiating about them to the point of
impasse.  Alternatively, if the Union's proposals are mandatory sub-
jects, the Employer violated the statutory duty by failing and
refusing to negotiate about them.

     In determining whether the Union's proposals are mandatory sub-
jects of bargaining, we first examine the language of the Act itself.
Section 979-D(4)(B) (1974) provides that, in the event that fact-
finding is unsuccessful in resolving a bargaining impasse between the
Employer and any of the certified bargaining agents representing its
employes, " . . . either party may petition the [labor relations] board
to initiate compulsory final and binding arbitration of the nego-
tiations impasse."  In such instances, the scope of the arbitrator's
authority is limited by 26 M.R.S.A.  979-D(4)(D) (1974) which states:

          With respect to controversies over salaries, pensions
     and insurance, the arbitrator will recommend terms of
     settlement and may make findings of fact.  Such recommen-
     dations and findings shall be advisory and shall not be

                                 -6-

     binding upon the parties.  The determination by the arbi-
     trator on all other issues shall be final and binding on
     the parties.

The clear intent of the Act, therefore, is that the subject of
"pensions" could be bargained to'impasse, be discussed through fact-
finding, and be an issue in interest arbitration.  Since non-mandatory
subjects must be abandoned at the point of impasse (the onset of
fact-finding), the topic of "pensions" must be a mandatory subject of
bargaining, within the meaning of 26 M.R.S.A.  979-D(1)(E)(1)
(Supp. 1985), and we so hold.

     While the topic of "pensions" may be broader in scope than the
retirement benefits provided to State employees through the Maine
State Retirement System, the language of the Act indicates that the
benefits under the system are encompassed within the ambit of
pensions" as a mandatory subject of bargaining.  Section 979-D(4)(C)
(3) (1974) of the Act states:

          In reaching a decision under this paragraph, the
     arbitrator shall consider the following factors:
                          *   *   *   *   *
          (3) the over-all compensation presently received
              by the employees including direct wage
              compensation, vacation, holidays and
              excused time, insurance and pensions,
              medical and hospitalization benefits, the
              continuity and stability of employment,
              and all other benefits received . . . .

(Emphasis added).  When the State Employees Labor Relations Act was
adopted, the pensions provided to State employees consisted of the
retirement benefits administered by the Maine State Retirement System.
5 M.R.S.A.  1002 (1979).  The use of the same word--"pensions"--in
sub-paragraphs (C)(3) and (D) of  979-D(4) indicates that the same
concept was being referred to in each.  In fashioning the interest
arbitration award, the arbitrator is to consider, among other factors,
the level of pension benefits to be paid to State employees, upon
retirement, through the Maine State Retirement System.  Such interest
arbitration awards are to be advisory only in recommending settlement
of negotiations impasses over the retirement benefits administered by
the Maine State Retirement System.

                                 -7-

     Although primarily based on the foregoing statutory analysis,.our
holding is further supported by this Board's conclusions concerning
the mandatory status of pensions in the municipal sector and by the
decisions of the National Labor Relations Board and of the federal
courts interpreting the analogous section of the National Labor
Relations Act, 29 U.S.C.A.  151, et seq.  The latter decisions are
pertinent because, in interpreting the language used in the various
Maine labor relations statutes, the Law Court will often "look for
guidance to parallel federal law, found in the National Labor
Relations Act and decisions thereunder."  Baker Bus Service v. Keith,
428 A.2d 55, 56 n.3 (Me. 1981).  The mandatory subjects of bargaining
set forth in both the Municipal Public Employees Labor Relations Act,
in 26 M.R.S.A.  965(1)(C) (Supp. 1985), and in the National Labor
Relations Act, in 29 U.S.C.A.  159(a), are, with the exception of
certain limiting language which will be discussed below, essentially
the same as those contained in the State Employees Labor Relations
Act, in 26 M.R.S.A.  979-D(1)(E)(1) (Supp. 1985).  All three statu-
tory sections provide that the mandatory subjects of bargaining
include: wages, hours, and working conditions.

     In the private sector, retirement benefits have long been held to
be mandatory subjects of bargaining.  In the leading decision in this
area, the United States Court of Appeals affirmed the National Labor
Relations Board's holding concerning the mandatory status of pensions
with the following analysis:

          The Company in its brief as to seniority rights states
     that it "affects the employee's status every day."  In con-
     trast, the plain implication to be drawn from its argument
     is that an employee is a stranger to a retirement and pen-
     sion plan during all the days of his employment and that it
     affects him in no manner until he arrives at the retirement
     age.  We think such reasoning is without logic.  Suppose
     that a person seeking employment was offered a job by each
     of two companies equal in all respects except that one had
     a retirement and pension plan and that the other did not.
     We think it reasonable to assume an acceptance of the job
     with the company which had such plan.  Of course, that might
     be described merely as the inducement which caused the job
     to be accepted, but on acceptance it would become, so we
     think, one of the "conditions of employment."  Everyday that
     such an employee worked his financial status would be en-
     hanced to the extent that his pension benefits increased,

                                 -8-

     and his labor would be performed under a pledge from the
     company that certain specified monetary benefits would be
     his upon reaching the designated age.  It surely cannot be
     seriously disputed but that such a pledge on the part of the
     company forms a part of the consideration for work performed,
     and we see no reason why an employee entitled to the benefit
     of the plan could not upon the refusal of the company to pay,
     sue and recover such benefits.  In this view, the pension
     thus promised would appear to be as much a part of his "wages"
     as the money paid him at the time of the rendition of his
     services.  But again we say that in any event such a plan is
     one of the "conditions of employment."

Inland Steel Co. v. National Labor Relations Board., 170 F.2d 247, 253
(7th Cir. 1948), cert. denied, 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed.
1112 (1949); Stone Boat Yard v. N.L.R.B., 715 F.2d 441 (9th Cir.
1983), cert. denied, 466 U.S. 937, 104 S. Ct. 1910, 80 L.Ed.2d 459
(1984).  In one of our early cases, we held, consistent with the deci-
sions of the National Labor Relations Board, that pensions are a man-
datory subject of bargaining under the Municipal Act.  Augusta
Uniformed Firefighters Association v. City of Augusta, PELRB No.
75-16, slip op. at 2 (May 13, 1975).  Although pensions have long been
a topic of mandatory bargaining in the municipal sector, municipali-
ties may, as a particular local district, include their employees in
the retirement programs administered by the Maine State Retirement
System. 5 M.R.S.A.  1092 (1979 & Supp. 1985-1986).

     The Employer's final argument is that the Union's retirement pro-
posals are not mandatory subjects because they are "prescribed or
controlled by public law," within the meaning of 26 M.R.S.A.  979-D
(1)(E)(1) (Supp. 1985).  This is the limiting language, unique to the
State Employees Labor Relations Act, which was mentioned above.
Section 979-D(1)(E)(1) provides, in relevant part, as follows:

          On and after January 1, 1975, it shall be the obliga-
     tion of the public employer and the bargaining agent to
     bargain collectively.  "Collective bargaining" means, for
     the purposes of this chapter, their mutual obligation:
                          *   *   *   *   *
               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

                                 -9-

          the subject of collective bargaining, except those
          matters which are prescribed or controlled by
          public law.

     The only case in which the Board has examined the bargaining sta-
tus of retirement proposals for State employees is Maine State
Employees Association v. State of Maine, MLRB No. 82-05, slip op.
(Dec. 22, 1982), rev'd on other grounds, State of Maine v. Maine State
Employees Association, 499 A.2d 1228 (Me. 1985).  The Board concluded
in that case, at page 17 of its decision, without providing any analy-
sis or reasoning therefor, that bargaining proposals for a 20-year, no
age, retirement eligibility and for 7.5% employee contribution towards
retirement for certain employees were prescribed or controlled by 5
M.R.S.A.  1121(1) and 1095(1).  After reviewing the decisions of the
Supreme Judicial Court which discuss the "prescribed or controlled"
provision in S 979-D(1)(E)(1), the Board is convinced that our earlier
holding was incorrect.

     The decisions of the Law Court analyzing the "prescribed or
controlled" language in 26 M.R.S.A.  979-D(1)(E)(1) fall into two
general categories.  One type of case involves the relationship be-
tween broad public policies embodied in the statutes and the collec-
tive bargaining rights of State employees.  The other class of case
involves bargaining results which are prohibited by public law.

     Constituting the first type of case are State of Maine v. Maine
Labor Relations Board, 413 A.2d 510 (Me. 1980) and Washburn v. State,
432 A.2d 1237 (Me. 1981).  In the former case, the Employer argued
that a statute, 28 M.R.S.A.  154, prescribed or controlled the hours
during which state liquor stores could be open; therefore, that sub-
ject was not within the mandatory bargaining subject of "hours."
Since the statute in question provided that state liquor stores could
only be open between the hours of 9 a.m. and midnight, the Court held
that "bargaining that would have the effect of extending business
hours beyond those statutorily prescribed limits is prohibited."
413 A.2d at 515.  On the other hand, the decision of which hours the
stores would actually operate, within the range permitted by the stat-
ute, "must be exercised within the environment of collective
bargaining as to 'wages, hours, [and] working conditions."' Id.

                                 -10-

The broad public policy involved in this case, which could not be cir-
cumvented through collective bargaining, was one prohibiting the sale
of intoxicating beverages by state liquor stores between the hours of
midnight and 9 a.m.

     In Washburn, the Law Court held that individuals, in certain
classifications defined by statute as being major policy-influencing
positions (5 M.R.S.A. S 711(2)(A)(14)(c)), serve "at the pleasure of"
the Governor or of a commissioner and may, at the "unfettered discre-
tion" of their appointing authority, be discharged.  432 A.2d, at
1239.  Although such issues as a "just cause" requirement for
discharge are mandatory subjects, the bargaining agent could not force
the Employer to negotiate over and the Employer could not agree to
conditions of continued employment for such employees.  The broad
public policy issue involved in this case was discussed by the Court
as follows:

          Requiring that a decision to terminate the employ-
     ment of the Director be for just cause, as the Associa-
     tion's contract with the State purports to require here,
     clearly conflicts with the authority of the Adjutant
     General conferred by statute.  The political philosophy
     of a Director may well influence the way in which a par-
     ticular director administers a Bureau.  In the context
     of policy formulation and implementation, the concept of
     just cause is wholly inappropriate as a prerequisite to
     terminating the employment of a state employee who is
     serving at major policy-influencing levels of state
     government since the job performance of such an employee
     may be technically competent, but politically unsatis-
     factory.  The notion of a position being served "at the
     pleasure of" a state official directly accountable to the
     Governor thus preserves legitimate political interaction
     and accountability at the policy-influencing levels of
     the Department of Defense and Veterans Services.

432 A.2d, at 1240.  The Court held that a series of statutes creates
"a line of authority sensitive to political pressures experienced at
the highest levels of state government" and that the continued
employment of individuals holding such major policy-influencing posi-
tions was prescribed or controlled by public law and, therefore, was
not a mandatory subject of bargaining.  432 A.2d, at 1239.

     The Law Court's opinion in Maine Department of Inland Fisheries
and Wildlife v. Maine State Employees Association, 503 A.2d 1285
(Me. 1986), discussed the "prescribed or controlled" provision as

                                 -11-

follows:

          While the Maine State Employees Labor Relations Act
     imposes a broad obligation on a public employer and the
     respective bargaining agent to bargain as to all matters
     relating to the relationship between the employer and
     employee, the Legislature recognized that collective
     bargaining with respect to particular matters might not
     always be appropriate.  The Act explicitly excepts from
     the requirement of collective bargaining "those matters
     which are prescribed or controlled by public law."
     26 M.R.S.A.  979-D(1)(E)(1).  The exception prohibits
     the parties from negotiating an agreement where a
     statutory provision "'explicitly and definitively pro-
     hibits the public employer from making an agreement as
     to a particular term or condition of employment."
     State v. Maine Labor Relations Bd., 413 A.2d 510, 515-
     16 (Me. 1980)) (quoting 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, 113 (1972)).

503 A.2d, at 1287-1288 (footnote omitted).  Finding that 12 M.R.S.A.
 7036(6) prohibited all use of the department's motor vehicles "for
other than official business," the Court held that a Union proposal
allowing certain "personal business" to be conducted by the depart-
ment's employees with the department's vehicles, to be prescribed or
controlled by public law. 503 A.2d at 1288.

     Retirement proposals that either contravene broad public policies
or specific prohibitions contained in the statutes are prescribed or
controlled by public law, within the meaning of  979-D(1)(E)(1).
For example, a bargaining proposal requiring employee retirement at a
fixed age would both transgress a broad public policy banning age
discrimination in public sector employment and violate a specific sta-
tutory prohibition against the establishment of a mandatory retirement
age.  Title 5 M.R.S.A.  1006(1) (1979) sets forth the broad public
policy "that discrimination based on age against any person who seeks
employment in the public sector or who is already employed by a public
employer shall not be tolerated."  In order to promote this public
policy, the statute goes on to provide that "it is the clear and une-
quivocal intent of the Legislature to prohibit employers in the public
sector from requiring employees to retire at a specified age, or after
completion of a specified number of years of service."

     We will now examine the Union's specific proposals together with
the legislation that the Employer avers prescribes or controls the

                                 -12-

subject matter of each proposal.  The Union's first proposal is that
institutional employees involved in prisoner management should be eli-
gible for retirement benefits of one-half of average final compen-
sation-after completion of twenty years of creditable service and
attainment of age 50.  Affected employees would contribute to the
retirement system at the rate of 7.5% of earnable compensation.  The
Union's second proposal is similar to its first, except that it
applies to law enforcement employees and provides for retirement eli-
gibility after twenty years of creditable service with no age limit.
The Employer argues that the topics of these proposals are prescribed
or controlled by 5 M.R.S.A.  1121 and 1095 (1979 & Supp. 1985-1986).

     Title 5 M.R.S.A.  1121(1)(A) and (3) (Supp. 1985-1986) set forth
the general eligibility provisions for receiving retirement benefits
through the Maine State Retirement System.  Section 1121(1)(A) pro-
vides that any employee may receive retirement benefits "at the
attainment of age 60" if such employee has "at least 10 years of
creditable service."  Section 1121(3) states that any employee with
"25 or more years of creditable service may retire prior to the
attainment of age 60"; however, such retirement benefits are paid at
a reduced rate.  Although setting forth these generally-applicable
standards, Section 1121 also provides different standards for several
different groups of employees.  For example, the Union's first propo-
sal seeks to provide employees engaged in prisoner management at the
Maine Correctional Center, the Maine Youth Center, and at other
correctional facilities with the same retirement eligibility standards
applicable to those wardens or deputy wardens of the Maine State
Prison hired prior to September 1, 1984.  5 M.R.S.A.  1121(4)(F)
(Supp. 1985-1986).  The Union's second proposal seeks to grant to all
law enforcement employees the same retirement eligibility standards
which apply to members of the State Police hired prior to September 1,
1984. 5 M.R.S.A.  1121(1)(C) (Supp. 1985-1986).

     The Employer asserts that the subject matter of the portion of
each of the Union's first two proposals providing that the employees
affected thereby were to contribute towards retirement at the rate of
7.5% of their earnable compensation is prescribed or controlled by 5

                                 -13-

M.R.S.A.  1095(1) (1979).  Although that section provides that
"[e]ach member shall contribute at a rate of 6.5% of earnable compen-
sation, except as hereinafter provided," 5 M.R.S.A. S 1095(9) (Supp.
1985-1986) states that the Employer may, pursuant to a collective
bargaining agreement, pay the employees' contribution.  Not only does
this latter provision indicate that the employee contribution issue is
properly a subject of collective bargaining but the paragraph itself
was enacted as a result of the collective bargaining process.  In an
earlier round of negotiations, the Employer proposed, in lieu of a
wage increase, to pay the employees' contributions to the retirement
system.  Although the Union rejected the Employer's proposal, two
other bargaining agents, the American Federation of State, County, and
Municipal Employees (representing the state employee Institutional
Services Bargaining Unit) and the Maine State Troopers Association
(representing the State Troopers Bargaining Unit), accepted the
Employer's offer and the appropriate statutory amendments were adopted
by the Legislature as contemplated in 26 M.R.S.A.  979-A(5) and
979-D(1)(E)(3) (Supp. 1985).  Chapter 453 of the Public Laws of 1981,
An Act to Fund and Implement Certain Collective Bargaining Agreements,
not only provided funding for the Institutional Services and State
Police bargaining units, P.L. 1981, ch. 453,  4 and 5, but also
enacted 5 M.R.S.A.  1062(2)(G), P.L. 1981, ch. 453, 1, and 5
M.R.S.A.  1095(9), P.L. 1981, ch. 453,  2.

     The Union's third proposal was that active employee survivor
benefits should be based on average final compensation and years of
service.  The Employer alleges that the subject of this proposal is
prescribed or controlled by 5 M.R.S.A.  1124(1)(B)(1) (Supp. 1985-
1986).  This statute provides a stated monthly allowance fof surviving
spouses and children which is unrelated to either the decedent's years
of state service or to average compensation during state service.

     The Union's final proposal was to permit employees to purchase
military service credits after ten years of creditable state service.
The Employer avers that this topic is prescribed or controlled by 5
M.R.S.A.  1094(13).  Subsection 1094(13)(A) (Supp. 1985-1986) pro-
vides that employees who began employment with the state prior to
January 1, 1976, may purchase military service credits after fifteen

                                 -14-

years of creditable state service.  Subsection 1094(13)(B) (Supp.
1985-1986) allows "Vietnam Era Veterans" to purchase military service
credits after fifteen years of creditable state service.  Both sub-
sections include a sentence which reads:  "Nothing in this paragraph
may be construed to affect in any way the rights of public employees
to bargain collectively for terms and conditions of employment."
Although relating to municipalities participating in the state retire-
ment system as "local districts," these sentences indicate that the
topic of military service credits is appropriate for collective
bargaining.

     The statutes cited by the Employer outline current retirement
eligibility standards, survivor benefit levels, and military service
credit eligibility.  The statutes neither set forth a broad public
policy that would be inconsistent with collective negotiations nor
prohibit the results sought through the Union's proposals.
Furthermore, some of these topics, such as the percentage of employee
contribution to the retirement system and the purchase of military
service credits, have either been the subject of negotiations in the
past or collective negotiations thereon are explicitly contemplated in
the statutes cited by the Employer.  We conclude, therefore, that the
four specific Union proposals which are the subject of this case are
mandatory subjects of bargaining, within the meaning of 26 M.R.S.A. 
979-D(1)(E)(1) (Supp. 1985), even though, as was the case in 1981, the
implementation of any agreement reached by the parties on the topics
of these proposals would require specific legislative action.  The
possible necessity for such legislative action is recognized in 
979-A(5) and 979-D(1)(E)(3) and does not render the matter one that
is "prescribed or controlled by public law," within the meaning of
 979-D(1)(E)(1).

     Having concluded that the Union's four proposals are mandatory
subjects of bargaining and having found that the Employer refused to
negotiate over said propoals, we hold that the Employer's refusal
violated 26 M.R.S.A.  979-D(1)(E)(1) (Supp. 1985).  Pursuant to
authority granted in 26 M.R.S.A.  979-H(3) (Supp. 1985), we will
order the Employer to cease and desist from refusing to bargain, upon

                                 -15-

request, over the Union's proposals.  In the circumstances of this
case, where a violation of the duty to bargain was followed by the
execution of a successor collective bargaining agreement and the
expiration of said agreement prior to issuance of our decision, no
useful purpose would be served by retroactive application of our
order.  We, therefore, confine our order to directing the Employer to
cease and desist in the future from refusing to bargain over the
Union's proposals merely because they relate to pensions or other
retirement benefits.  This remedy is appropriate to rectify the
above violation and to effectuate the policies 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.  979-H (1974 & Supp.
1985), it is ORDERED:

     That the State of Maine, its representatives and agents cease
     and desist from failing and refusing to negotiate over such
     proposals concerning pension or retirement proposals as were
     made by the Union in this case.

Dated at Augusta, Maine this 17th day of July, 1986.

                                  MAINE LABOR RELATIONS BOARD


                                  /s/_________________________________
The parties are advised of        Edward S. Godfrey
their right pursuant to 26        Chairman
M.R.S.A.  979-H(7)(Supp.
1985) to seek review of the
Superior Court by filing a
complaint in accordance           /s/_________________________________
with Rule 80B of the Rules        Thacher E. Turner
of Civil Procedure within         Employer Representative
15 days of the date of the
decision.

                                  /s/_________________________________
                                  George W. Lambertson
                                  Employee Representative

                                 -16-