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-