STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 92-32
Issued: February 2, 1993
______________________________________
)
ROY GALLANT and MAINE STATE )
TROOPERS ASSOCIATION, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
MAINE DEPARTMENT OF PUBLIC SAFETY, )
BUREAU OF STATE POLICE, )
)
Respondents. )
______________________________________)
On March 27, 1992, Roy Gallant and the Maine State Troopers
Association (Association) filed a prohibited practice complaint
with the Maine Labor Relations Board (Board) alleging that the
Maine Department of Public Safety (Department) and the Bureau of
Maine State Police (Bureau)1 have violated Section 979-C(1)(E)of
the State Employees Labor Relations Act (SELRA), 26 M.R.S.A.
979-C(1)(E) (1988), by unilaterally instituting an Eighty
Percent Salary Retirement Incentive Program (Incentive Program)
contrary to and in violation of both the parties' collective
bargaining agreement and the past practice of the parties.
More specifically, the complaint alleges that implementation
of the Incentive Program, which allows specified employees to
receive full retirement benefits, be restored to service at
eighty percent (80%) of their salary and receive all benefits to
which they are contractually entitled to at the time of
retirement, violates, through unlawful unilateral change, the
following provisions of the parties' collective bargaining
agreement: exclusive recognition provisions; "employee" and
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1Although the Complaint names the Department and Bureau, we
have processed the complaint as one against the State. See,
26 M.R.S.A. 979-A(5) (1988).
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"member" definitional provisions which refer to completion of six
(6) months of continuous service; the wage and salary schedule;
the maintenance of benefits provision; provisions requiring
officers and representatives of the Bureau at all levels to
observe and be bound by the agreement's provisions; provisions
which establish a probationary period during which the contract's
terms are inapplicable; portions of the contract which provide
that an employee shall lose his/her seniority if (s)he resigns
from employment; provisions requiring the assignment of overtime
on the basis of continuous seniority; and provisions respecting
layoff, bumping rights, recalls to work and demotion in lieu of
layoff. The complaint also alleges that the Incentive Program
violates past practice respecting consideration of seniority in
promotions.
The State Bureau of Employee Relations (BOER), answering for
the Department and the Bureau, generally denies that the
complained-of Incentive Program's implementation violates the
SELRA. BOER answers in defense that the matter of the incentive
plan is prescribed and/or controlled by public law, that the
Bureau has received no demand to bargain and that the complaint
is time-barred because the option to retire under the incentive
plan was established effective July 17, 1991, more than 6 months
prior to the filing of the charge. BOER's answer is accompanied
by a motion to dismiss on the bases of lack of filing timeliness
and failure to state a claim cognizable by the SELRA. Both BOER
and the Association request the award of costs and reasonable
attorney's fees.
The parties filed memoranda in support of and in opposition
to the motion to dismiss in advance of the prehearing conference
conducted by Alternate Chair Pamela D. Chute on June 10, 1992.
Chair Chute's June 25, 1992, Prehearing Conference Memorandum and
Order is hereby incorporated in and made a part hereof. A full
evidentiary hearing was conducted on August 10, 1992, by Chair
Peter T. Dawson, presiding, Employee Representative George W.
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Lambertson and Employer Representative Howard Reiche, Jr. The
Association was represented at hearing by Attorney Daniel F.
Gilligan. BOER was represented by its Counsel, Robert N. Moore.
The Association called Joseph R. Gallant, Andrew Demers, Peter
Stewart and Al Skolfield as witnesses. BOER called Gary A.
Mather. The transcript was completed on August 19, 1992. The
parties each filed posthearing briefs, the last of which was
received September 28, 1992. The Board deliberated the matter on
October 7, 1992.
JURISDICTION
The Board has jurisdiction to hear the evidence, to
determine the issues, and to render a decision and order in this
case pursuant to 26 M.R.S.A. 979-H (1988 & Supp. 1992). The
Association is a bargaining agent within the meaning of
26 M.R.S.A. 979-A(1) (1988) and the BOER is a public employer
within the meaning of 26 M.R.S.A. 979-A(5) (1988).
POSITIONS OF THE PARTIES
The evidentiary hearing issues established at prehearing
are: 1) was the complaint timely filed; 2) did the State have a
duty and obligation to bargain on the 80% Salary Retirement
Incentive Plan; 3) if they had a duty to so bargain, did the
State refuse to bargain. The Association contends that the
unilateral implementation of the Incentive Program "alters and
changes the terms and conditions of employment within the
contract and past practice in several areas, the most important
of which for the purposes of . . . [the Association's] complaint
is the [unwarranted] retention of seniority by people who . . .
[opt for] the program." According to the Association, opting for
the incentive program causes both a break in service and loss of
seniority, and transforms optees into employees possessing less
than six months' continuous service. The Association contends
that allowing optees, many of whom are the department's most
senior employees, to retain their seniority and contractual
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coverages disadvantages non-opting employees who otherwise would
receive enhanced special detail overtime opportunities. The
Association also contends the retention of seniority by optees
has potentially disadvantaged the promotional and job security
benefits of non-optees. The Association contends that because
there was a unilateral implementation without opportunity or
reasonable time to request bargaining, a request to bargain was
not required.
The State contends that the Legislature extended the
incentive retirement option to employees and prescribed or
controlled what opting employees' wages and benefits would be.
The State contends that there has been no modification of the
collective bargaining agreement and that the Association's real
complaint is that the award of overtime to Incentive Program
participants prevents non-retired employees represented by the
Association from maximizing their retirement income, by
increasing, through special detail overtime, their average salary
in the three years just prior to retirement. The State argues
that it is applying the contract's terms to non-opting employees
and opting employees on the basis of contractual requirement as
to the former and on the basis of statutory mandate of
contractual level benefits for the latter. The State argues that
to fail to accord opting employees the seniority rights they had
at the time of their opting would violate the express
requirements of 5 M.R.S.A. 17858 (Supp. 1992). The State
contends that the six-month statute of limitations period began
to run on the legislation's effective date. Finally, because the
Association asks that the Board find the implementation of the
incentive program null and void, the State argues that the Board
has no authority to make the declaration of statutory invalidity
requested by the Association.
STIPULATIONS
The parties reached the following stipulations at prehearing
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conference: Title 5 Section 17858 of the Maine Revised Statutes
Annotated became effective on July 17, 1991. Memorandum 39-91
was issued in implementation of 17858. An application form was
attached to Memorandum 39-91 when it issued. The parties' 1989-
1992 Agreement was in effect at the time of enactment of 17858
and of the issuance of Memorandum 39-91.
FINDINGS OF FACT
The Association and the State of Maine are parties to a
collective bargaining agreement effective May 2, 1990, through
June 30, 1992. Roy Gallant is the President of the Association
and is a State Crime Lab Firearms Inspector whose position is
included in a bargaining unit of the Bureau's permanent full-time
troopers, corporals and sergeants represented for the purpose of
collective bargaining by the Association. Gallant became
President of the Association in November of 1991. From January
through July of 1991, Gallant held no Association office.
Colonel Andrew Demers, Jr., has served as Bureau Chief from 1987
to, and including, the present.
Emergency legislation enacted in July of 1991, established a
retirement incentive option (Incentive Program) for State
employees. The provisions of that legislation, later codified as
5 M.R.S.A. 17858 (Supp. 1992), and effective July 17, 1991, are
as follows:
17858. Retirement incentive option
Any state employee, as defined in section 17001,
subsection 40, having reached normal retirement age who
retires on or after October 30, 1991 and who is
restored to service is not subject, for up to 3 years,
to the earnings limitations set forth in section 17855.
Any such person is entitled to all benefits that the
person was entitled to at the time of termination by
collective bargaining agreements or civil service laws
and rules. The retired state employee's salary must be
80% of the employee's salary at the time of
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termination. The retired state employee is not a
member of the retirement system and therefore may not
accrue additional creditable service and is not
entitled to any other benefits that accrue to an active
member of the retirement system. For any state
employee who has reached normal retirement age on or
before October 30, 1991, the option established in this
section must be selected by the state employee by
January 31, 1992. For all other state employees for
fiscal year 1991-92 only, the option established in
this section must be selected by the state employee
within 3 months of reaching normal retirement age.
The Incentive Program was the product of a period of acute
funding crisis in Maine's state government. The incentive plan
reduces general fund expenditures by approximately $800,000 in at
least the following ways: it reduces salary expenditures
(including overtime) for many of the Bureau's most senior and
therefore most highly paid employees by twenty (20) percent;
contributions to the Maine State Retirement System for opting
employees are curtailed;2 overtime performed by opting employees
may not be used to enhance retirement benefit payments; and the
health and life insurance costs for opting employees is borne by
the retirement system. The incentive to employees under the
program is that while their job duties and benefits remain
unchanged they are paid their full retirement pay in addition to
salary at the rate of eighty percent of the salary rate in effect
at the time of their entry into the incentive program.
Lieutenant Colonel Al Skolfield, a nineteen and one-half
year employee of the Bureau, has served as Deputy Chief for over
five years. Skolfield was on the Bureau's bargaining team during
the parties' most recent negotiations. Skolfield has acted as
the Bureau's legislative liaison for five years. In that
capacity he was aware of the passage of the legislation which
established the incentive program. Skolfield believed that the
legislation gave the Department an option in terms of whether to
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2The State saves at least sixty-five additional cents for
every dollar of full salary previously paid to opting employees,
in the way of contribution toward retirement costs.
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make the program available to individual employees, based on
whether their participation was "productive for the department."
The parties' contract specifies with regard to retirement solely
that "[t]he State agrees to continue to provide retirement
benefits to employees pursuant to applicable statute." The
Association has made no attempt to secure a change in the
retirement incentive program by the Legislature.
On October 15, 1991, the Director of the Department of
Administration's Bureau of Human Resources issued Human Resources
Memorandum 39-91 to "[a]ll Agency/Department Heads/Personnel
Officers," setting forth guidelines for the implementation of the
Retirement Incentive Program.3 The memo advises agencies to
inform employees of the special program and states that employees
who "qualify and have appointing authority approval to
participate . . . should contact the Maine State Retirement
System as soon as possible." The guidelines establish an
October 30, 1991, start-up date. Memo 39-91 was sent by the
Bureau of Human Resources to Demers on October 23, 1991. The
guidelines require the approval of an appointing authority.
Demers possesses approval authority for the Bureau. The
guidelines provide that "employees must be terminated from their
positions by retirement on the normal work day prior to the
starting date of their participation in [the] program."
With respect to acceptance of requests for retirement under
the option the guidelines state:
Because of operational concerns and the unplanned costs
that this program may impose on agencies, employees
must have the approval of their appointing authority to
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3On February 28, 1992, the Bureau of Human Resources of the
Department of Administration issued a memorandum numbered 5-92
indicating that employees would cease to be members of their
unions upon their participation in the incentive program but be
allowed to rejoin upon restoration under the program. No issues
given rise to by these provisions have been submitted to the
Board and they have not been addressed herein.
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participate in this program. An appointing authority
may deny participation in this program with evidence
that this participation will have an adverse impact on
operational goals and objectives, or if the costs to be
incurred by this participation will exceed the savings
to be realized or if this participation will adversely
affect the work plan developed by the appointing
authority to stay within the budget authorized.
Gary Mather has been the Department's personnel manager
since October 27, 1986. Mather issued his own memo tailoring the
guidelines to reflect Bureau employees' bumping rights, which are
restricted to previously held classifications. Mather forwarded
Memo 39-91 to Demers for further distribution to Bureau
employees. Skolfield notified all Troops/Divisions by teletype
on October 29, 1991, that eligible interested officers should
forward their applications to Demers. The Bureau attempted to
assure that all employees reviewed the guidelines and the
application form. On or about October 31 or November 1, 1991,
applications were filed by Bureau employees and were approved by
Demers. The first optee approved was Lieutenant Richard Arnold.
Pursuant to the Bureau's standard operating procedures,
employees desiring to resign submit an R-1 or resignation request
form. R-1 forms were not used for the Incentive Program. Form
Per 112 is used for Incentive Program applications. In a normal
termination, a termination sheet is returned to the employee by
Mather. An exit interview is part of the normal termination
process as is turn-in of vehicle, identification, badge, weapon,
and uniforms. Applicants' forms under the Incentive Program go
first to Col. Demers or Skolfield and then are transmitted to
Mather for the purpose of costing-out the "offsetting costs" of
permitting applicants to undergo the incentive retirement.
The Association first became aware of the guideline contents
of Memo 39-91 on October 23, 1991. The Association was not
certain that the program would be implemented by the Bureau until
October 31, 1991. Gallant conversed with superior officer
Lieutenant Richard Arnold prior to implementation, who stated
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that for fiscal reasons the program might not be implemented by
the Bureau. There is no indication of special knowledge or of
the authority of State Crime Lab Director Arnold to make such a
statement. The Association felt that the Bureau's implementation
of the program was certain when the first person, Lieutenant
Arnold, signed onto the program on October 31, 1991.
Association President Hendsbee sent BOER Director Kenneth A.
Walo a written demand to bargain on October 26, 1988. Neither
BOER nor Demers have received a demand by the Association to
bargain the Incentive Program. Demers does not participate in
bargaining with the Association. There has been no demand to
bargain over the Incentive Program itself and no demand to
bargain the impact of the Program. There also has been no demand
to bargain over implementation of the plan.
As of April 1, 1991, Skolfield, Demers and four of the six
most senior members of Troop E were approved for the Incentive
Program. The application of a fifth highly senior member of
Troop E was received by February 2, 1992. There are
approximately 44 employees presently participating in the
program. No one who has requested the program has, to date, been
denied participation. Retirement dates have for an unspecified
number of employees been postponed because the request was made,
with respect to the budgetary calendar, at a fiscally inopportune
point. Because payment of accumulated sick leave and vacation
leave at one time to such a large number of retiring employees
constitutes an unanticipated Bureau expense, it is actually
possible for opting employees to precipitate temporary budgetary
insolvency. The Association acknowledges the significant impact
that the loss of 44 of the 330 total Bureau employees might
cause. There is no evidence establishing the likelihood of
continued employment by employees who will have had three years'
participation in the program. There is no evidence of any
adverse impact on the agency resulting from participation in the
program by any or all of the present or potential participants.
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Under the Guidelines the Bureau interprets employees to
possess a "snapshot" of the contractual benefits which they
possessed at the time of their entry into the program. For
example, employees receiving one and three-quarter days of
vacation per month, who after retiring under the program go over
twenty years' employment, would not be entitled to the increased
vacation rate of two days per month. Seniority-based overtime,
vacation, layoff and promotional benefits are provided by the
parties' collective bargaining agreement.
Article 35 of the parties' agreement provides that unit
employees lose their seniority if they resign from their
employment.4 Under the contract, employees who resign and
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4The parties' agreement provides in this respect:
2. Loss of Seniority
An employee shall lose his/her seniority if he/she:
(a) resigns from his/her employment. An employee is
required to submit to the employer, at least fifteen (15)
calendar days prior to the effective date of such resignation, a
written notice of resignation. During the first ten (10) days of
such fifteen (15) day period, the employee may retract his/her
resignation without prejudice and such retraction must be
accepted by the employer. Any retraction of the written
resignation, presented by the employee during the period
beginning five (5) days prior to the effective date of the
written resignation and extending through the period of ten (10)
days after the effective date of the resignation, may be accepted
at the sole discretion of the appointing authority of the
Department of Public Safety.
(b) is discharged for just cause.
(c) is absent from work without just cause for a period of
three (3) consecutive days without notifying the appropriate
State authority.
(d) is laid off and not recalled for work within three (3)
years from the date of layoff.
(e) accepts a position outside of State service.
(f) accepts a position outside of the agency but within
State service and does not return to a vacancy within the agency
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reapply for entry into service acquire a new enlistment date for
continuous service. The Bureau treats employees who enter the
incentive program, with respect to the preservation of the amount
of seniority at the time of their option, as if they had not
resigned. Bureau employees opting for the Incentive Program have
not been placed on a six-month probation for seniority purpose or
on twelve-month probation for disciplinary or discharge purposes.
The parties' contract provides that an employee may in certain
circumstances withdraw a resignation and continue working without
the forfeit of seniority. Troopers have in the past been
returned or restored to service when their departure from the
Bureau has been less than three years in length. Prior disputes
as to position on the seniority list have been resolved through
the grievance procedure.
Under the contract, as a general rule, the employee with the
least seniority is the first to go in a layoff. Continuous time
in classification statewide is the layoff standard at the Bureau.
If employees opting for the incentive program were to be
considered to have their seniority in classification reduced to
zero, they would be among the first to be bumped in a layoff.
Under the contract's provisions, time in grade is converted
into points and is added to the point total considered in
promotional decisions. Point totals are composed 10% of training
and experience and 45% each of written examination and oral board
scores. The increased points for seniority applicable to
promotion reach a maximum at an unspecified number of years.
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for a period of six (6) months beginning with the date he/she
left the position in the agency.
(g) fails to notify the appropriate State authority, within
five (5) calendar days of the receipt of the notice of recall, if
such notice has been mailed to the last known address, of the
intent to return to work, unless extenuating circumstances beyond
the control of the employee prevent the employee from doing so.
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Seniority is not determinative between employees of equal point
totals. The top six aggregate point total employees are
interviewed for vacancies.
Negotiations which produced the agreement now in effect did
not result in a change to "the [previous] practice of assigning
or operating special details to the most senior people."
Special detail work includes speed detail (radar or aircraft),
escort and OUI. Overtime is offered on a seniority basis only to
officers not on working status at the time of the detail.
Uniformed and non-uniformed special detail requirements are
posted, respectively, within an appropriate geographical troop
location. Attempt is first made to staff the detail from the
troop seniority list. The division seniority list is used when
the detail is not filled from the troop list. Special details
are offered sequentially to the most senior employees on the
list. If they accept, detailed employees are paid premium
overtime pay, at time and one-half, for the detail. The
assignment of overtime to the most senior unit members has
historically resulted in permitting employees about to retire to
increase their retirement pay by increasing, through overtime
payments, the average of their highest three years' salary.
There are two different kinds of overtime. Emergency overtime
counts toward retirement 100%, regular overtime counts toward
retirement in a maximum of 15%. There have been occasions when
Trooper Peter Stewart, a program non-participant, would have
received a special detail but for its award to an Incentive Plan
participant.
Employees participating in the program who bump into a lower
classification or who are promoted are removed from the Incentive
Program. The Bureau is not certain of the status of employees
who are promoted and are removed from the Incentive Program.
On January 22, 1992, Trooper Robert Howard filed a grievance
with his commanding officer, Lt. Bruce Dow, on behalf of the
Association. An appeal of a step one denial of that grievance
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was filed with Demers on February 5, 1992. The appeal letter
states, in effect, that the State is unlawfully dealing directly
with employees over negotiable matters and that the appeal is
"taken to correct the inequities of the 80% retirement plan and
to demand that the State follow the terms of its contract, dated
May 2, 1990."
DISCUSSION
The Association complains that the Bureau's "unilateral
implementation of the [Incentive] Program contrary to and in
violation of the existing Collective Bargaining Agreement . . .
constitute[s] the prohibited practice of refusing to bargain
collectively within the meaning of 26 M.R.S.A. 979-C(1)(E)"
(1988). The Association argues that there is no statutory
language which mandates the program be implemented. The
Association states that "[r]espondents could have conducted
negotiations on whether to implement the program itself[. and
that h]ypothetically, in return for certain concessions the
Respondents could agree not to implement the program without
violating 5 M.R.S.A. 17858." As is more fully explained below,
we do not agree. We conclude that implementation of the
Incentive Program was not optional and that the complained-of
impacts flowing from implementation of the program, as well as
the program itself, were prescribed or controlled by public law,
and therefore non-negotiable. We decline to award attorney's
fees or costs.
Initially it should be noted that there has been no averment
of impairment of contract based on the facts of this case.
Issues respecting the constitutionality of the retirement
incentive option statute are not within the jurisdiction of the
Board and are not addressed herein.5 The Association may test
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5The parties' contract provides respecting retirement only
that the employer will "continue to provide retirement benefits
to employees pursuant to applicable statute."
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the constitutionality of the Legislature's enactment of the
Incentive Program in the courts. Additionally, the Association
has not specifically charged a prohibited practice based on
either BOER's reservation of decisional authority to Demers or on
BOER's establishment of criteria in its guidelines which govern
approval authority denial or approval of applications for the
incentive retirement program.
Finally, we do not determine, herein, whether opting
employees are State employees within the meaning of the SELRA.
Any dispute over optees' salaries and/or benefits is not
cognizable by the Board because we find them to be prescribed or
controlled by public law. We have entertained the issues treated
herein because they appear to be based on allegations of unlawful
unilateral change impinging on the collective bargaining rights
of non-opting employees.
The Timeliness of the Complaint
The evidence establishes that the Association was not
certain that the incentive program would be offered within the
Bureau until the guidelines were distributed and the first
applicant was accepted. The State contends, on the other hand,
that since the legislation was effective July 17, 1991, the
complaint, filed on March 27, 1992, is barred by the six-month
limitation period provided in 26 M.R.S.A. 979-H(2) (1988).
We find transmission of Deputy Bureau Chief Skolfield's
October 29, 1991, teletype message inviting applications from all
eligible interested officers to be the event commencing the
running of the limitations period respecting implementation of
the Program. We therefore find the complaint to be timely filed.
Prescribed or Controlled
The Association's essential complaint is that the Bureau's
implementation of the statutory retirement incentive option
effects an unlawful unilateral change in the method of assignment
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of special detail overtime. The Association contends that
"[r]estoring [incentive program] participants to service after a
break in service takes away the seniority rights of other
Association members which were bargained for and agreed to by the
State." According to the Association, non-opting employees have
also been deprived of enhanced job security (rights respecting
layoff, recall and demotion in lieu of layoff) and promotional
opportunity6 through the retention of seniority by incentive
program participants. More specifically, unit members who take
advantage of the statutory option are not treated by the Bureau
as having resigned and therefore are not divested of their
seniority pursuant to the provisions of Article 35 of the
parties' collective bargaining agreement. We conclude that the
terms of Article 35 section 2 respecting "Loss of Seniority" do
not apply to employees who have exercised their option to
participate in the Incentive Program. Employees entering the
program do not experience a break in service. Although the
nature of their employment is significantly changed in ways
dictated expressly by statute, their employment before and after
exercising the option continues uninterrupted. Employees who
exercise their option do not, upon entering the program, resign
from their positions in the common sense of the word. Webster's
New World Dictionary, 2d ed., defines the word "resign" as
follows: "vt. ... 1. to give up possession of; relinquish (a
claim, etc.) 2. to give up (an office, position, etc.)--vi. to
give up an office, position of employment, etc., esp. by formal
notice (often with from)."
We conclude that implementation of the Program was not
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6The Association seems to contend that the promotional
rights of non-opting employees have been impinged not only
because opting employees may still compete for promotions with
retained seniority but because opting employees are restored to
the positions from which they have retired in a manner which
forecloses the opportunity of non-opting employees to vie for
vacant positions created by the incentive retirements. We find
both of these issues to be prescribed or controlled by the terms
of the statute.
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optional for the Department. We read the statutory Incentive
Program provisions as being mandatory, unambiguous and effective
on a date certain. The dates during which and by whom the option
may be exercised is clearly set forth. Moreover, the salary and
benefits of program participants are comprehensively established.
In the facts of this case we find that with respect to opting
employees there has been no change which is not prescribed or
controlled by the terms of the statute. Moreover, we also find
that the impacts upon non-opting unit employees complained of by
the Association are contemplated by the statute. Finally, we
conclude that the Legislature must have been conversant in the
provisions of each of the contracts applicable to state employees
to which the incentive option was to have been extended and that
the Legislature intended the Bureau's opting employees to possess
the contractual benefits which they enjoyed at the time of the
making of the option. Since many of these benefits, and in fact
most cited by the Association, are based on seniority it would be
unreasonable to conclude that the Legislature intended that
opting employees' seniority, and the many contractually-defined
benefits based thereon, would disappear.
There is no dispute that the Incentive Program was
instituted to reduce general fund expenditures during extremely
hard economic times for the State. Because it is reasonable to
assume layoffs to be a distinct possibility during hard economic
times, it is reasonable to infer that the incentive to
participation in the program would be significantly diminished,
if not negated altogether, if participants were stripped of
seniority and exposed to dramatically enhanced risk of layoff.
It cannot be rationally argued that such a result was intended by
the Legislature.
The evidence establishes that no applicant was denied and
that the timing of the actual retirement of some applicants was
affected specifically by fiscal considerations. In short, there
is no allegation that decisions of the Bureau respecting
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admission of any applicant to the program was based on any
criteria other than general fund cost savings.
In the facts of this case we do not find the Bureau's
treatment of opting employees' seniority or any other benefit to
be at variance with the treatment prescribed and controlled by
Section 17858.7 The statutory incentive option provisions
require that each opting employee be accorded "all benefits that
the person was entitled to at the time of termination by
collective bargaining agreement . . . ." Although the seniority
of non-opting employees continues to increase while that of
opting employees does not, the right of opting employees to be
considered for special detail assignment on the basis of their
contractually accrued seniority, possessed at the point of entry
into the program, seems plainly within the statute's requirements
Demand to Bargain
The Association is correct in stating that unilateral
implementation of mandatory subjects without advance notice and
opportunity to demand negotiations would ordinarily violate the
SELRA. Coulombe v. City of South Portland, No. 86-11, slip op.
at 11, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). However, the
enactment of the Incentive Program and its mandatory implementa-
tion are prescribed and controlled subjects respecting which no
demand to bargain would be effective. Further, we conclude that
reasonable opportunity to demand impact bargaining existed. We
impute knowledge of the statutory enactment of the incentive
program to the Association. We do not construe either the
October 26, 1988, Hendsbee letter or the February 5, 1992, step
two grievance appeal letter to constitute a demand to bargain
over any negotiable impact flowing from implementation of the
Incentive Program.
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7"Under SELRA, a public employer may not bargain over
matters 'prescribed or controlled by public law.' See 26 M.R.S.A.
979-D(1)(E)(1) [(1988)]" Bureau of Employee Relations v.
AFSCME, 614 A.2d 74, 76 (Me. 1992).
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The Association's allusion to unlawful direct dealing is
dismissed as unsupported. The Incentive Program is offered to
employees by the action of the Legislature, not by action of the
employer. See Council 93, AFSCME v. City of Portland, No. 90-14,
slip op. at 16, 13 NPER ME-22001 (Me.L.R.B. Oct. 18, 1990).
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(3) (1988), it is hereby ORDERED that the Maine Troopers
Association's March 27, 1992, Complaint be, and hereby is,
DISMISSED.
Issued at Augusta, Maine, this 2nd day of February, 1993.
MAINE LABOR RELATIONS BOARD
The parties are hereby ___________________________
advised of their right Peter T. Dawson
pursuant to 26 M.R.S.A. Chair
979-H(7)(Supp. 1992),
to seek review of this
decision and order by
the Superior Court. To
initiate such a review ___________________________
an appealing party must George W. Lambertson
file a complaint with Employee Representative
the Superior Court
within fifteen (15) days
of the date of issuance
of this decision and
order, and otherwise ___________________________
comply with the require- Howard Reiche, Jr.
ments of Rule 80C of the Employer Representative
Maine Rules of Civil
Procedure.
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