The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
, ._~~KET~O.CV-O~l2J
WILLIAM NEILY,
Plaintiff
v. DECISION ON
STIPULATED FACTS
STATE OF MAINE and
STATE OF MAINE
OFFICE OF THE STATE CONTROLLER,
Defendants
Before the Court are the parties' stipulated facts relating to Plaintiff
William Neily's three-count Complaint against the State of Maine and the State
of Maine Office of the Controller.
BACKGROUND
The facts as stipulated to by the parties are as follows. Neily was
employed as a Boiler Inspector in the Office of Licensing and Registration, Maine
Department of Professional and Financial Regulation, from November 2, 2002 to
November 3, 2006. The position of Boiler Inspector was established in July 2002
and assigned to the Administrative Services bargaining unit of the Maine State
Employees Association / Service Employees International Union Local 1989
("'MSEA/SEIU"). I Pursuant to 5 M.R.S.A. § 7051 et seq., the State performed an
analysis in July 2002 to determine the salary range for the Boiler Inspector
position, which was in effect at the time Neily concluded his employment with
the State and was the basis for his final pay.
1 The Boiler Inspector position was moved to the Professional and Technical
Services bargaining unit in March 2006.
In March 2001, the State and the MSEA/SEIU hired a consulting firm to
perform a market pay analysis. The purpose of the market pay analysis was to
determine which State classifications of employees in bargaining units
represented by the MSEA/SEIU were paid more than 10% below the market
average. The State and the MSEA/SEIU agreed that employees in classifications
whose pay was less than 90% of the market would be provided with a market
pay adjustment to bring their pay up to 90% of market level. On June 20, 2001,
the State and the MSEA/ SEIU executed a Memorandum of Agreement ("MOA")
that identified those classifications that would receive a market pay adjustment,
set forth the amount of the adjustment, and specified how the adjustment would
be administered. On June 21, 2001, the State and the MSEA/SEIU entered into a
collective bargaining agreement for the period July I, 2001 through June 30,2003
(the "CBA"). In December 2001, the State and the MSEA/SEIU executed an
Addendum to the MOA, which set forth market pay adjustments for identified
supervisory classifications and other classifications. The adjustments set forth in
the MOA and the Addendum remained in effect through the period of Neily's
employment with the State. The Boiler Inspector position was not included in
the classifications identified in the MOA or in the Addendum. Nor was the
Boiler Inspector position included in the Administrative Services Job
Classifications covered by the CBA.
The MOA and the Addendum were funded by the Legislature in P.L.
2001, chapter 438 ("chapter 438"), which states in relevant part:
Sec. A-I. Costs to General Fund. Costs to the General Fund must
be proVided in the Salary Plan program... to implement the
economic terms of the collective bargaining agreements, including
market and pay equity adjustments and benefits, made between the
State and the Maine State Employees Association.
2
***
Sec. A-6. New employees; similar and equitable treatment.
Employees in classifications included in bargaining units referred
to in sections 1 and 2 of this Part but who are excluded from
collective bargaining pursuant to the Maine Revised Statutes, Title
26, section 979-A, subsection 6, paragraphs E and F must be given
equitable treatment on a pro rata basis similar to that treatment
given employees covered by the collective bargaining agreements.
(26 M.R.S.A. § 979-A(6) sets forth the definition of "State employee" and exclude
from that definition a person who "has been employed less than six months.")
The State implemented the requirements of Section A-6 of chapter 438
through pro rata adjustments to wage scale, medical and dental benefits, sick
leave and holidays to all new employees, including Neily. Market pay
adjustments were granted only to employees occupying positions in
classifications listed in the MOA and the Addendum. No market pay analysis
was conducted by the State for the Boiler Inspector position and no market pay
adjustment was ever made.
Neily now seeks unpaid wages from the State. He asserts three counts in
his Complaint: violation of chapter 438; violation of 26 M.R.S.A. § 626; and
violation of the Equal Protection Clauses of both the United States and Maine
Constitutions.
DISCUSSION
1. P.L. 2001, Chapter 438
Neily concedes that the State had no contractual obligation to pay him the
wages he now seeks. Instead, Neily argues that the State had a statutory
obligation to pay him pursuant to chapter 438. Neily states the directive of
chapter 438, section A-6 is clear: to give new employees (including Neily)
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equitable treahnent on a pro rata basis similar to that given to employees covered
by the CBA.
As an initial matter, the State argues that the doctrine of res judicata
applies and bars Neily's arguments with respect to chapter 438 because Neily
previously attempted to argue that he was owed additional wages under chapter
438 before the Maine Labor Relations Board ("MLRB"), but his complaint was
dismissed on the basis that the action was time-barred? While the Court
acknowledges the State's argument, it declines to decide Neily's chapter 438
claim on this basis. For the reasons stated herein, however, the Court finds that
Neily has no claim under chapter 438.
Neily argues that the State has violated chapter 438 by refusing to pay him
in a similar and equitable manner as other State employees. The Court disagrees.
Indeed, the language of section A-6 clearly states that it applies to "[e]mployees
in classifications included in bargaining units referred to in sections 1 and 2 of
this Part." Sections A-I and A-2 reference the CBA entered into between the
State and the MSEA/SEIU and a separate collective bargaining agreement
between the State and the Maine State Troopers Association, which is not
relevant here. The parties have stipulated that the Boiler Inspector position was
not established until July 2002, a full year after the MOA and the CBA were
executed. Thus, employees in the Boiler Inspector classification do not derive
any rights from chapter 438 because, by its own terms, chapter 438 does not
apply to them.
2The Law Court affirmed the decision of the MLRB to dismiss. Neily v. Maine
Labor Relations Board, Mem-07-89 (May 15, 2007).
4
Moreovert neither the MOAt the CBA t the Addendum or chapter 438
provide for any ongoing market pay analyses to be done. Rathert each provides
for the implementation of market pay adjustments based on the market pay
analysis previously conducted. As Neilts Boiler Inspector position did not exist
at the time the market pay analysis was done and as nothing in the MOAt the
CBAt the Addendum or chapter 438 requires the State to perform market pay
analyses in the future t Neily was not entitled to a market pay analysis or a
market pay adjustment.
The essence of Neilyts chapter 438 argument is that section A-6 demands
that new employees be treated similarly and equitably compared to employees
covered under the MOAt the CBA and the Addendum. Thust Neily arguest
because employees in classifications covered by collective bargaining received
market pay adjustmentst so should he. Neilyt howevert ignores the fact that his
classification (Boiler Inspector) was not one of those classifications included in
the MOAt the CBA or the Addendum. A new employee hired into a
classification that had been granted a market pay adjustment under collective
bargaining would receive that adjustment even though that new employee was
not covered by collective bargaining at the time. But this is not a case where one
Boiler Inspector received a market pay adjustment while Neily did not. No
Boiler Inspector received a market pay adjustment (and t indeedt no one could
have received one since the position did not exist until July 2002). Thus, Neily
was treated similarly and equitably compared to other employees in his
classification and there has been no violation of chapter 438.
5
II. 26 M.R.S.A. § 626
Neily argues that the State's failure to pay wages due to him under
chapter 438 is a violation of 26 M.R.S.A. § 626, which states in relevant part that
"[a]ny employee leaving employment must be paid in full within a reasonable
time after demand." In Neily's own words, "In this case, the dispute is over
Defendants' decision not to pay Plaintiff a market pay adjustment similar to
those paid by the Defendants to all other employees meeting certain
requirements set down in 2001." Plaintiff's Brief on the Merits, page 15. As set
forth in section I supra, Neily was not entitled to a market pay analysis or market
pay adjustment pursuant to the 2001 collective bargaining that led to the MOA,
the CBA, the Addendum and chapter 438. As such, Neily has no claim under 26
M.R.S.A. § 626.
III. Equal Protection Clauses
Finally, Neily argues that his rights under the Equal Protection Clauses of
both the Maine Constitution and the United States Constitution have been
violated by the State's refusal to grant him a market pay adjustment as required
by chapter 438's "similar and equitable treatment" language. Neily argues that
"[t]here demonstrably exists only the single group consisting of new employees
under section A-6 of the statute [chapter 438], and there exists only the single
standard of granting those new employees the same treatment as existing
employees." Plaintiff's Brief on the Merits, pages 20-21. Neily overlooks,
however, the language of chapter 438, section A-6limiting its application to only
those "employees in classifications included in bargaining units ...but who are
excluded from collective bargaining [because they are new employees]." The
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parties have stipulated that Neily's classification was not included in those
classifications covered by the MOA, the CBA and the Addendum. For the
reasons set forth in section I supra, this Court holds that chapter 438, by its terms
and by the parties' stipulation, does not apply to Neily and grants him no rights.
Thus, Neily has not been deprived of his right to the equal protection of the law.
Therefore, the entry is:
Judgment for the State of Maine and the State of Maine Office of the
State Controller on the parties' stipulated facts.
The clerk shall incorporate this Order into the docket by reference
pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this day of ~~~'2008'
bert E. Crowley
Justice, Superior Court
7
F COURiS
md County
~ox287
ne 04112-0287
WILLIAM NEILY
47A NORTH ST
GORHAM ME 04038
>F COURTS
and County
Box 287
ine 04112-0287
WILLIAM LAUBENSTEIN III AAG
DEPARTMENT OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA ME 04333-0006