STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-02
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LOCAL 740, INTERNATIONAL ASSOCI- )
ATION OF FIREFIGHTERS, AFL-CIO )
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Complainant )
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v. ) DECISION AND ORDER
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CITY OF PORTLAND, MAINE, )
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Respondent )
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This case comes to the Maine Labor Relations Board by way of a
Prohibited Practice Complaint dated June 28, 1977, and filed by Merton A.
Rutherford, President, Local 740, International Association of Firefighters,
AFL-CIO on July 8, 1977. The Response to the aforesaid complaint and a
Motion to Dismiss dated July 28, 1977, were filed by James J. Purcell,
Esquire, attorney for the City of Portland on July 29, 1977. An amended
Prohibited Practice Complaint dated July 29, 1977, was filed by Merton A.
Rutherford on August 1, 1977. A Motion for Judgment on the Pleadings
dated August 2, 1977, was filed by James J. Purcell on August 2, 1977.
A pre-hearing conference was held in this matter at Augusta, Maine,
on August 2, 1977, at 1:30 p.m. with Alternate Chairman Donald W. Webber
presiding. As a result of the pre-hearing conference, a Pre-Hearing Confer-
ence Memorandum and Order was issued by Mr. Webber on August 9, 1977, the
contents of which are incorporated herein by reference. A hearing was held
on Tuesday, October 4, 1977, at 9:30 a.m. in the Portland Jetport Confer-
ence Room, Portland, Maine, Alternate Chairman Donald W. Webber presiding,
with Michael Schoonjans, Employee Representative, and Robert D. Curley,
Employer Representative. Legal briefs were submitted by November 14, 1977,
and the Board proceeded to deliberate on this matter on Tuesday, December 6,
1977.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this matter, and we conclude that this Board has
jurisdiction to hear and render a decision in this case as provided in
26 M.R.S.A. 968 (5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the plead-
ings and the Pre-Hearing Conference Memorandum and Order, we find that:
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1. Local 740, International Association of Firefighters, AFL-CIO,
was at all times material herein the recognized bargaining agent
for certain employees of the Fire Department of the City of
Portland, Maine.
2. The City of Portland is a public employer as defined by
26 M.R.S.A. 962 (7).
3. A collective bargaining agreement was executed by the City of
Portland and Local 740, International Association of Firefighters,
AFL-CIO, on February 9, 1977, which contains, inter alia, the
following Articles:
ARTICLE 3 RECOGNITION: The City hereby recognizes
that Local 740 is the sole and exclusive representa-
tive of all employees of the Fire Department (herein-
after EMPLOYEES) for the purpose of bargaining with
respect to wages, hours of work, working conditions,
and other terms and conditions of employment.
EMPLOYEES means all employees of the Fire Department
except: (specific exceptions followed).
ARTICLE 7 DUTIES OF EMPLOYEES: A. EMPLOYEES shall
not be detailed to other Departments of the City ex-
cept in case of extreme emergency affecting the health,
safety, and welfare of the City. The duties of EMPLOYEES
shall be the prevention, control, and extinguishment of
fires, the maintenance of equipment readiness and appear-
ance, the care and maintenance of all departmental
quarters, the carrying out of the duties of the Rescue
Division, Fire Prevention Division, Signal System Divi-
sion, and Civil Defense activities as long as these
divisions form part of the Department.
4. On February 7, 1977, the Portland City Council enacted an ordin-
ance establishing the Department of Public Safety, and that the
establishment of the new department was preceded by a presenta-
tion on November 1, 1976, of a proposal by the City Manager
contained in his budget message to the City Council.
5. In the course of the reorganization of City Departments, and
creation of the Department of Public Safety, two job categories
in the Fire Department (Fire Alarm Operator and Signal System
Lineman) were eliminated and new job categories with substan-
tially the same duties as those formerly performed by the
eliminated categories were created in the Department of Public
Safety.
6. The reorganization of the City Departments was done in good faith
to serve a municipal purpose and was not motivated by an anti-
union animus.
7. The employees employed in the eliminated positions were offered
employment in the Department of Public Safety, and all such
employees have accepted employment in the new department, ex-
cept one employee who elected to remain in the Fire Department
as a Firefighter.
8. Complainant was notified by Respondent in January, 1977, of the
intention to eliminate the positions of Fire Alarm Operator and
Signal System Lineman, and offered to negotiate the change.
9. The Department of Public Safety when completely operational will
be comprised of approximately 71 employees.
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DECISION
The Complainant has charged the Respondent with violating 26 M.R.S.A.
964(1) (A) (B) and (C) by unilaterally removing certain employees from
a bargaining unit end thereby denying those employes the benefits of the
collective bargaining agreement. The Complainant has not challenged the
right of the City of Portland to create the Department of Public Safety or
to move the two positions from the Fire Department to the Department of
Public Safety under the reorganization plan. The Complainant has challenged
the unilateral refusal by the City of Portland to recognize the rights and
benefits of the Alarm Operators and Linemen under the collective bargain-
ing agreement, and the unilateral refusal to recognize Local No. 740 as the
sole and exclusive representative for the Alarm Operators and Linemen.
The testimony at the hearing demonstrated that the reorganization by
the City of Portland was a proper City action and was motivated by economic
reasons. The City did not reorganize to interfere with the rights of public
employees or subvert the purposes of the Municipal Public Employees Labor
Relations Act.
The reorganization plan by the City of Portland was known to both the
City and the bargaining agent for the Fire Department prior to the execution
of the collective bargaining agreement, and the City of Portland offered to
negotiate the change prior to the execution of the collective bargaining
agreement on February 9, 1977. By its own terms, the collective bargain-
ing agreement applies only to "employees of the Fire Department" and Local
74O was recognized as "the sole and exclusive representative of all employ-
ees of the Fire Department." Since the contract by its terms does not apply
to employees outside the Fire Department, denial of its benefits by the City
of Portland would not violate the Municipal Public Employees Labor Relations
Act unless the removal of employees from the Fire Department was motivated
by an anti-union animus or was so extensive as to be inherently destructive
of union activities. We have already found that the actions of the City
were proper and were made on good faith and were not motivated by an anti-
union animus, and the conduct of the City is not such as to be inherently
destructive of Union activities. The employees in the new department may
petition for a bargaining unit and select a bargaining agent, and there have
been no restrictions by the City to such organizational efforts.
A contract bar to unit and representation proceedings would not be
applicable, since the present collective bargaining agreement does not
cover the employees in the new department. We conclude that the conduct of
the City of Portland in not granting the benefits of the Fire Department
contract to employees outside the Fire Department was proper and, therefore,
the amended prohibitive practice complaint filed on July 29, 1977, should
be dismissed.
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ORDER
On the basis of the foregoing findings of fact and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by the
provisions of 968 of the Municipal Public Employees Labor Relations
Act, it is hereby ORDERED:
1. That the complaint of Local 740, International Associ-
ation of Firefighters, AFL-CIO dated July 29, 1977, to
the Maine Labor Relations Board on August 1, 1977, be
DISMISSED.
Dated at Augusta, Maine, January 25, 1978.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Donald W. Webber, Alternate Chairman
/s/________________________________________
Robert D. Curley, Employer Representative
/s/________________________________________
Michael Schoonjans, Employee Representative
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