STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 89-01
Issued: March 31, 1989
________________________________________
)
AUBURN FIREFIGHTERS ASSOCIATION, )
LOCAL 797, INTERNATIONAL )
ASSOCIATION OF FIREFIGHTERS, )
AFL-CIO, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
CITY OF AUBURN, )
)
Respondent. )
________________________________________)
On June 30, 1988, the Auburn Firefighters Association, Local 797,
International Association of Firefighters, AFL-CIO, (Association)
filed a prohibited act complaint with the Maine Labor Relations Board
(Board), which alleges that the City of Auburn (City) has violated 26
M.R.S.A. 964(1)(A), (B), (C) and (E) (1988), by unilaterally
effecting changes in salaries, work assignments, sick leave policies
and negotiations procedures. More specifically, the complaint alleges
that during successor contract negotiations, on February 8 and 17,
respectively, the City unilaterally instituted a 4 percent wage
increase for bargaining unit members and reorganized fire department
equipment and manning affecting firefighters' assignments and scope of
work. The complaint also alleges that on March 3, 1988, the City uni-
laterally, selectively, and in contravention of past practice, began
requiring physicians' certificates as a condition of allowing fire-
fighters to return to work from sick leave. Finally, the complaint
alleges that the City unilaterally imposed negotiations ground rules
which, in contravention of past practice, required firefighters
involved in contract negotiations for the Deputy Chiefs' Bargaining
Unit to make-up or pay for duty time spent in negotiations, and
limited those negotiations to City Hall between 8:00 a.m. and 4:00 p.m.
Monday through Friday.
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The City's response, filed July 22, 1988, answers that the
complained-of salary increase consists of the City's last best offer,
lawfully implemented after impasse in negotiations. The response
admits that the City issued "Order #58" on February 17, 1988, which
announces the "Redistribution of Equipment and Personnel" within the
fire department, but denies the balance of the Complainant's allega-
tions regarding the order. Finally, the response denies all of the
Association's averments regarding sick leave and substantially all of
the Association's averments regarding the alleged unilateral
implementation of changed negotiations procedures.
On August 8, 1988, Alternate Chairman Peter T. Dawson conducted a
prehearing conference at which Respondent filed a Motion and Memorandum
in Support requesting that the portion of the Complaint concerning
sick leave verification procedures be deferred to the parties'
contractual grievance-arbitration procedures. The Prehearing
Conference Memorandum and order issued by Alternate Chairman Dawson on
August 11, 1988, is incorporated in and made a part of this Decision
and Order. Pursuant to the Prehearing Order both parties filed
prehearing documents outlining their legal and factual contentions.
Complainant also filed on September 8, 1988 a Memorandum in Opposition
to the Respondent's Motion to Dismiss.
On October 7, 1988, the Board, consisting of Chairman William M.
Houston, Employer Representative Thacher E. Turner and Employee
Representative George W. Lambertson conducted a full evidentiary
hearing in the cause. At hearing the Board granted Shawn Keenan, of
the Maine Teachers Association, leave to file an amicus brief.
Additionally, as is more fully explained, infra, the Board granted the
motion of Respondent, made at hearing, to defer consideration of that
portion of the complaint concerning sick leave verification to the
parties' mutually agreed grievance-arbitration procedure.
JURISDICTION
Neither party has challenged the jurisdiction of the Board in
this case. We conclude that the Board has jurisdiction over this
controversy pursuant to the Municipal Public Employees Labor Relations
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Law (MPELRL), 26 M.R.S.A. 968(5) (1988). The complaint alleges a
violation of the obligation to bargain prescribed in 26 M.R.S.A. 965
(1988), which violation is specifically prohibited by 26 M.R.S.A.
964(1)(E) (1988). The complaint also alleges coercion of bargaining
unit members in violation of 26 M.R.S.A. 964(1)(A) (1988); discrimi-
nation discouraging membership in an employee organization in viola-
tion of 26 M.R.S.A. 964(1)(B) (1988) and interference with the
administration of an employee organization in violation of 26 M.R.S.A.
964(1)(C) (1988).
FINDINGS OF FACT
Upon review of the entire record, the Board makes the following
findings of fact. The City of Auburn is the public employer, within
the meaning of 26 M.R.S.A. 962(7) (1988), of employees in the City's
Rank-and-File Firefighter collective bargaining unit. The Auburn
Firefighters Association, Local 797, International Association of
Firefighters, AFL-CIO, is the exclusive collective bargaining agent
within the meaning of 26 M.R.S.A. 962(2) (1988), of units of rank-
and-file Firefighters,1 Deputy Chiefs,2 and Dispatchers3 employed by
the City of Auburn.
Paula A. Valente was the City Manager of the City of Auburn for
the 11 years prior to the hearing herein. Valente served in the capac-
ity of Assistant Auburn City Manager prior to serving as City Manager
and in one or the other of those positions was active in collective
bargaining negotiations with the Association throughout the events
which are the subject of the complaint.
_______________________
1The Association was certified as the exclusive collective
bargaining agent of the City's Firefighters on November 12, 1965.
2The Association was certified as the exclusive collective
bargaining agent of the City's Deputy Chiefs on July 15, 1983. The
recognition clause of the parties' present collective bargaining
agreement excludes from the bargaining unit the Deputy Chief in charge
of personnel.
3The Association was certified as the exclusive collective
bargaining agent of the City's Dispatchers on September 26, 1986.
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The City and the Association were parties to a Rank-and-File
Firefighter collective bargaining agreement in effect from April 1,
1985 through March 31, 1987. Article XVIII, DURATION OF THE CONTRACT,
of that agreement provides:
This contract shall continue in force for a term of two (2)
years commencing April 1, 1985, and ending March 31, 1987.
The provisions hereof shall remain in effect after that ter-
mination date if the parties are engaged in collective
bargaining [,] mediation, fact-finding, or interest arbitra-
tion pursuant to the Maine Public Employees Labor Relations
Act, or legal action relating thereto. No interest arbitra-
tion decision shall be given retroactive effect unless it is
determined by reference to the facts and circumstances
surrounding the negotiation that retroactive application
would be just. In that case, the decision shall be retroac-
tive to the extent State law gives the arbitrator the power
to make it so.
The agreement also specifies in Article V, WAGES AND COMPENSATION,
that:
All Firefighters covered under this agreement shall be paid
in accordance with the attached wage schedule(s) and shall
receive their steps when due, for the duration of the
agreement. Step increases shall be accorded one year
following the date of employment or most recent promotion
(whichever is later) and each April lst thereafter until the
top step has been reached.
Section 1. Privates and Officers The members of the
Auburn Fire Department covered under this contract shall be
paid in accordance with the wage schedules for the duration
of the contract.
Negotiations for a successor contract began in the early fall of
1986. The parties negotiated on ten occasions of 3.75 hours average
length prior to mediation. Tentative agreement was reached on seven
items during those negotiations. As of February 5, 1988, those ten-
tative agreements addressed the following items:
1. 2-year contract.
2. Time and one-half for off-duty attendance for committees
established by the Chief or City.
3. Longevity.
4. Deletion of Dispatchers and Deputies from Article 1.
5. Deletion of Section 6 and 7 of Article 17.
6. Bonuses for job knowledge tests.
7. Floating holiday for M.L.K.
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After these negotiations the parties participated in three mediation
sessions during which no additional agreements were reached.
Thereafter, the parties participated in fact-finding and three post-
fact-finding bargaining sessions. As a result of the latter nego-
tiations the parties reached agreement on items regarding living
radius and non-discrimination.
As of November 25, 1987, the parties had reached agreement on a
number of items; however, their agreement on these items was tentative
and based upon "acceptance of a complete package." The notes of the
City's attorney relating to the November 25, 1987 negotiations session
were proffered by the City to establish the City's bargaining position
taken at the November 25 meeting. The components of the City's posi-
tion at that meeting, as reflected in those notes and characterized by
the City's attorney as the "last, best offer of the City" included the
following, which constituted the only remaining issues:
Wages
Yr. 1 ----- 4% across-the-board increase
Yr. 2 ----- 4% across-the-board increase plus increase
differential between [seniority] step F to
G to 5% (from current 3%)
Physical Fitness [whether there should be a plan for fire-
fighters and if so what form it should take]
--as proposed in fact-finding.
Manning Levels
No to Assn. proposal but agree w/fact-finders.4
Health Insurance
As presented in fact-finding.
Retroactivity
Valente remembered the offer to include retroactivity. Association
negotiating committee chairman McCarron recollected the City's offer
to be "no retroactivity." The bargaining notes of Valente and the
City's attorney indicate an offer of no retroactivity. The City's
last best offer also included the contract terms upon which the par-
ties had already tentatively agreed. On the City's attorney's notes
of the November 25 session, Valente personally wrote, "[Association]
will respond either in writing or request for another mtg.--prob. not
____________________
4See generally the discussion of the Fact Finders' recommendation
regarding this matter on page 10, infra.
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before mid-December." The Association's response by letter dated
January 4, 1988, relayed the Association's "last final offer," which
was separately dated December 12, 1988. The Association's final offer
included a proposal for a 20 percent wage increase over a two-year
period and a proposal that the fact finders recommendation regarding
retroactivity be adopted by the parties. The fact finders' recommen-
dation was as follows:
The Fact Finders recommend that the new contract be
retroactive to April 1, 1987 and that it expire on June 30,
1989. The 4 percent salary scale increases recommended by
the Fact Finders should be modified and made effective as
follows: April 1, 1987 through March 31, 1988 -- 4 percent
increase; April 1, 1988 through March 31, 1989 -- 4 percent
increase; April 1, 1989 through June 30, 1989 -- 1 percent
increase.
Valente wrote to McCarron on January 21, 1988. In her letter she
acknowledged receipt of the Association's "last final offer," referred
to the City's November 25, 1987 "last best offer," and stated, "[g]iven
the final positions of the parties and the large disparities between
them, it is apparent that we are at impasse." Shortly thereafter, on
February 3, 1988, the Association filed an interest arbitration
request.
On or about February 8, 1988, City Manager Valente promulgated
and distributed a letter to unit employees, the text of which is
as follows:
As you know, the City of Auburn and Local 797 have been
engaged in contract negotiations since November 1986; the
Union's contract expired April 1, 1987. Because of the
protracted nature of these negotiations and our inability to
reach settlement, firefighters, unlike other city employees,
received no wage adjustment last year.
The City Council approved a 4 percent wage increase in
Fiscal Year 1987-1988 for all employees, including employees
of the Fire Department. This was the City's last best offer
on wages at the bargaining table. Since union and City
officials now are at an impasse, I plan to implement this
wage offer effective February 16, 1988, and retroactive to
April 1, 1987.
It is unfortunate that negotiations have not been successful
in reaching a final settlement, but I am pleased we can pro-
vide you with this wage increase at this time.
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The 4 percent increase was implemented for the pay period ending on
February 12, 1988. The checks for that pay period also contained an
amount equal to the retroactive application of a 4 percent increase
from the expiration of the prior bargaining agreement, on March 31,
1987. No other changes in the wages, hours or working conditions of
firefighters were accomplished between February 8, 1988 and the date
of the filing of the complaint herein. Association President Berube
wrote Valente shortly thereafter, protesting the City's failure to
inform the Association negotiating committee of its intentions and
protesting the City's deviation from its final bargaining position,
which the Association believed to include a rejection of the notion of
retroactivity.
On January 25, 1988, the Association submitted a written request
to bargain a successor Deputy-Chiefs' contract to Valente. On
February 5, 1988, Valente responded to McCarron's request by
acknowledging receipt of McCarron's demand letter and proposing, among
other things, that negotiations sessions "be scheduled during business
hours, 8:00 a.m. - 4:30 p.m., Monday through Friday [with the] nego-
tiating site to be either the Council Chambers or another mutually
agreed on site." McCarron responded to Valente's letter on February 15,
1988, by, among other things, agreeing to the timing of negotiations
sessions and proposing that sessions be held "at Central Fire Station
and the Council Chambers on an alternating basis." McCarron also
suggested that other mutually agreeable sites would be acceptable
alternatives.
On February 29, 1988, Valente sent McCarron a letter in
"clarification" of the City's position which proposed:
2. Negotiations will be scheduled during business hours,
8:00 a.m. - 4:30 p.m., Monday through Friday and will
continue to be held in the Council Chambers. The City
will provide relief time for firefighters and deputies
attending negotiating sessions; however, such employees
are expected to make up the time according to a schedule
mutually agreed upon by the Chief and the employee.
Valente's letter also apprised McCarron that he should direct further
communications to Assistant City Manager Steve Lewis. On March 5,
1988, McCarron wrote Lewis asking for his ground rules recommendations.
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Lewis informed McCarron that the City's proposed ground rules were as
relayed by Valente, and responded with proposed negotiations dates.
At a subsequent negotiating session Lewis explained to the Association
that firefighters negotiating on-duty during the Deputy Chiefs'
contract negotiations would be required to make up the time.
The City requested that the Association bring the Deputies into
negotiations and that the Assocation reduce the number of Assocation
representatives at the bargaining table. However, the City imposed no
restrictions in either of these regards. The City never refused any
employee's attendance at Deputy Chiefs' negotiations. Valente imple-
mented the requirement that duty time spent in Deputy Chiefs' nego-
tiations be made up because of the protracted nature of the negotia-
tions in the past, her perceived lack of control over the number of
Association team members at the table and the fact that none of the
members of the team were Deputy Chiefs.
The parties never resolved their differences regarding whether
their ground rules would require make up of duty time spent in nego-
tiations, although some ground rule items were tentatively agreed
upon. The Association commenced negotiations after concluding that
there was no sense in trying further to pursue agreement on ground
rules. Although two firefighters secured replacements so that they
could leave the station and attend negotiations at City Hall, McCarron
owes the City three hours for work time spent in negotiations pursuant
to the City's imposition of its proposed ground rule in this regard.
In January, 1988, there were five memoers of the Association's Deputy
Chiefs' negotiating team. Due to resignations from the team during
the two or three months prior to hearing there are now only two team
members. Deputy Chiefs Chapman and Simard comprise the entire Deputy
Chiefs' bargaining unit. Neither Chapman nor Simard were ever members
of the the Association's Deputy Chiefs' negotiating team. Negotiations
prior to the ones in question were conducted at various hours of the
day and night. In the past, when negotiations occurred during on-duty
time, there was never a requirement that negotiating team members make
up on-duty time spent in negotiations. No reference to union business
or negotiations leave is made in the parties' contract, although the
contract specifies pay or a lack thereof for other forms of leave. No
proposal for union business or negotiations leave was made prior to
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the negotiations for the Deputy Chiefs' contract.
The City of Auburn has three twenty-four hour fire districts,
generally referred to as the Central Station District located on Minot
Avenue, the South Main Station District located in New Auburn and the
Center Street Station District located on Route 4. The City also has
a one-truck volunteer station in the Danville area of Auburn which is
staffed by eight or nine volunteers. The City possesses six pumpers,
one ladder truck, one snorkel, one woods vehicle and one rescue
vehicle. There are approximately 60 full-time firefighters employed
by the City.
In 1982 the Department changed the minimum manning level from 11
to 12. The City has never proposed to increase the number of fire-
fighters per truck in negotiations. The reorganization of the
Department formulated by the Chief in January of 1988 was the Chief's
own idea, which he brought before the City Manager and which they both
presented to the City Council at a pre-council closed-session meeting.
Valente informed the City Council of the reorganization plan in
Executive Session for reasons beyond the financial impact of the plan.
One such reason was Valente's perception that implementation of the
plan would impact upon collective bargaining issues which the
Association would insist to be mandatorily negotiable. Additionally,
Valente desired to explain to the Council that she believed the
Association would be in error concerning the negotiability of the plan.
The principal objective for the reorganization was to balance the
overall fire protection in the City by redistributing firefighting
resources. Municipal growth in Auburn resulting in population pattern
changes, land use changes resulting in the construction of additional
structures and the coordination of water supply from both the municipal
hydrant system ana fire apparatus were all factors influencing the
departmental reorganization. One decisive factor influencing the
reorganization was the completion, in 1987, of a three-year study of
fire incidents. That report indicated that the City's men and equip-
ment were not well-distributed. The Chief's redistribution plans were
not implemented during the tenure of Valente's predecessor for finan-
cial reasons. An additional factor contributing to the timing of the
eventual implementation of the plan was the City's procurement of a
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new pumper with greater water-carrying capacity.
In successor contract negotiations, the Association demanded to
bargain over the question of safety rules and proposed that specific
safety rules be included in the contract. Although the Association's
"safety rules were generally operational safety rules relating to
firefighter safety on or near the fire ground," the City's response
was that the Association's proposals actually were a pretext for nego-
tiating the non-mandatory subject of manning. The City maintained
throughout negotiations that the number of men on the fireground, on
trucks and in the Department at any point in time were issues of
manning, not safety, and were therefore not negotiable. Over the
course of negotiations the firefighters proposed that certain safety
rules be adopted with respect to "how certain firefighting operations
would be conducted and how many people it would take to conduct them,
such as how many men to trail a hose, how many men to go onto a roof
to vent." The City persisted in its contention that the Firefighters'
safety proposals were, in actuality, proposals relating to the issue
of "how many people would be on duty . . . not an appropriate issue
for bargaining."
Although the exact terms of the Association's proposals to the
fact-finding panel were not established at hearing, the record does
establish that the following fact-finding panel recommendation con-
cerning safey was made as a result of the panel's June 30 and
July 1, 1987 hearing:
The Association proposes that 11 specific rules
directly related to job safety be adopted and incorporated
into the Contract. The City has resisted this request and
claims that the Union proposal is nothing more than an
effort to mandate the hiring of additional firefighting
personnel.
The Fact Finders are convince that safety is a con-
tinuing vital concern of both the firefighters and City
management. In its argument for the adoption of its fitness
proposal, the City stressed that the program would enhance
the safety of individual firefighters, their fellow workers,
and the general public being serviced. The Fact Finders
recommend that the City appoint an ad hoc committee, which
would include at least one member of the Association, one
City representative, and one member of the public, to
examine the matter of safety in the Fire Department.
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The committee would be asked to submit a report of its
evaluation and recommendations prior to the expiration of
the new contract.
The Association's last best offer concerning safety included a
proposal that the City adopt certain provisions of the Master Index to
National Fire Codes published by the National Fire Protection
Association. In particular, the Association proposed that the City
adopt the following sections of NFPA 1500 entitled Standard on Fire
Department Occupational Safety and Health Proqram (1987 Edition):
Chapter 5, Protective Clothing and Protective Equipment, Sections
5-3.1 through 5-3.10 (pertaining to the use of Self-Contained
Breathing Apparatus in areas where the atmosphere is, is suspected of
being, or may rapidly become hazardous) and Chapter 6, Emergency
0perations, Sections 6-1.1 through 6-1.7, 6-2.1 through 6-2.3 and
6-3.1 through 6-3.3 (pertaining to the establishment of an incident
command system for emergency operations, supervision of unexperienced
firefighters working at incidents, safety equipment for use when fire-
fighters are exposed to traffic, the minimum number of firefighters to
be used in teams operating in especially hazardous areas and the use
of backup and life support personnel). The Association's safety pro-
posal also contained the following language:
In Addition the following personnel per task shall be
employed on the fireground:
1) One (1) person as Fire Ground Commander
2) Three (3) firefighters on each attack line
3) Three (3) firefighters on each back-up line
4) One (1) pump operator for each pumper in use
5) Two (2) firefighters on Aerial fly during
operations
6) One (1) firefighter on Aerial turntable
during operations
7) Two (2) firefighters per team for search/rescue
8) Three (3) firefighters per back-up line during
search/rescue
9) Two (2) firefighters to handle ground ladders
used for secondary means of escape
10) One (1) firefighter assigned as internal
supervisor
11) One (1) Firefighter to extend and connect
water supply lines
12) One (1) initial attack safety officer
13) Snorkel operations shall require one turntable
person and two firefighters in the bucket
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These tasks are performed simultaneously
The City indicated on November 25, 1987, that it would be willing to
enter into a contract consistent with the fact-finders' recommendation.
The parties' ultimate collective bargaining agreement contains language
adopting the recommendation of the fact-finders.
Chief Smith conducted an informational meeting on February 9 and
10, 1988, at which he informed the Captains and the officers of the
Association, respectively, that the City would implement a redistribu-
tion of equipment and personnel "as soon as the new pumper, engine 3
was ready for active service." Thereafter, in an undated letter
Association President Berube wrote to the Association membership
stating, in pertinent part:
Furthermore, the decision by Chief Smith to realign the
first line response units of the Auburn Fire Department has
also materialized at an interesting point in time, when one
considers the issue of safety as presented by Local 797
during factfincting and currently an issue on the table as we
approach arbitration. The Chief assured Union officials
during an informational meeting on February 10 that his
actions have been presented to and approved by the Council
and City Manager. The Union's final offer provided the City
with an opportunity to further pursue negotiations prior to
arbitration but was apparently not acted upon. The current
approach to these issues will be a topic for discussion at
the next Union meeting.
On February 20, 1988, Association President Berube wrote Chief
Smith noting that Smith had mentioned a change in the method of recall
of off-duty firefighters, in the February 10th informational meeting,
which was inconsistent with both the parties' collective bargaining
agreement and past practice. Berube pointed out that the subsequently
issued order #58 had made no mention of the change in recall procedure
although newspaper accounts had quoted Deputy DeWitt as stating the
changed recall procedure would be effectuated on February 22, 1988.
Berube asked for written clarification of the City's intentions
regarding the recall matter and reitereated that any change in such
would violate the collective bargaining agreement and past practice.
On February 26, 1988, Smith issued memorandum #126 in which he withdrew
the City's plans to change the recall system. The record demonstrates
that no separate objection or demand to bargain the impact of order #58
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on safety was ever made prior to the filing of the complaint herein.
Order #58 effected a change in the minimum on-duty manpower limit
of from 12 to 13 firefighters, relocated Ladder 2 to the Central
Station and relegated Engine I and Snorkel 1 to reserve status. Order
#58 also effected certain changes in the manning of firefighting
vehicles. While five of the Department's fifteen general firefighting
vehicle manning figures remained the same as established in order #41,
ten manning requirements were increased to require an additional fire-
fighter per vehicle. In addition to relocating Ladder 2 to Central
Station, Order #58 provides as follows:
The Lieutenants that were assigned to Engine 1 and Snorkel 1
will be reassigned to other units.
A Lieutenant per platoon will be assigned to the Captain's
truck (Engine 3) at all times and will be assigned fire ground
duties as per the Captain or Acting Captain's discretion.
A Lieutenant per platoon will be assigned to the rescue
vehicle as a floating lieutenant and will be utilized as per
the Captain or Acting Captain's discretion.
The Stump Jumper will be assigned to Engine 2 Station and
will respond with a firefighter from Engine 2 whenever
needed. The tank truck (Tank 1) will be assigned to Engine
5 station and will respond with a firefighter from Engine 5
to all reported structure fires outside the hydrant district
or wherever else needed.
Reserve fire apparatus will be manned by off-duty fire-
fighters during recalls and will be assigned to stations as
follows:
Central Station--Engine 1
Engine 2 Station--Engine 6
Engine 5 Station--Snorkel 1
Department orders and SOP's will be updated to reflect the
above changes.
In accordance with City procedure, the senior Captain going on a
fire call acts as the fireground commander. Captain Berube, assigned
to Engine 3 both before and after the issuance of order #58, is, when
Engine 3 is called out, the fireground commander and in that capacity
is the director of the entire on-scene fire combat operation. One
result of order #58 was the transfer of Lieutenant Goddard from Engine
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1, which is now in reserve status, to Engine 3. The implication of
this reassignment is that the Lieutenant no longer commands a piece of
fire apparatus as the senior firefighter assigned. Another result of
the reorganization is that under the new plan firefighters at the
fireground are working in groups of three rather than in groups of
two. Such an increase enhances the safety of all fireground partici-
pants due to the availability of assistance to injured or incapacitated
firefighters.
The parties' contract in Article X, Sick Leave, provides, inter
alia, that, "[a] firefighter absent because of any one or more of the
foregoing reasons shall cause such fact to be reported to the officer
in charge immediately, together with the reason for his/her absence."
Article X also provides that:
In any case, the Fire Chief, after consultation with
the City Manager, may, in the exercise of his/her independent
judgment, require further authentication of a claim for sick
leave including a doctor's certificate as to the nature of
the firefighter's disability and that he/she is unable to
work. The City and the firefighter shall jointly select the
doctor from whom the certificate is to be obtained. Any
expenses incurred in obtaining a doctor's certificate from a
doctor selected by the City shall be borne by the City.
Pending receipt of such authentication, the City may with-
hold further sick leave payments.
A firefighter on sick leave shall call in when he/she
is able to return to duty.
On September 1, 1981, the City of Auburn established a procedure to be
followed by employees when notifying their departments of absences
from work due to illness or disability. By a memorandum dated March 3,
1988, Deputy Dewitt instructed officers in the Department that "[w]hen
Lt. Howard calls off the sick list tell him I need a Doctor's slip
before he is allowed to return to work." On March 18, 1988, the
Association filed a grievance challenging the requirement of medical
authentication as a prerequisite to returning to work. The grievance
was denied by the Chief on March 25, 1988 and the City Manager on
April 21, 1988. On April 28, 1988 Association President Berube
notified the City in writing of the Association's intention to submit
the matter to arbitration.
The parties' agreement provides in Article XI, Grievance
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Procedure, inter alia:
Section 2. Firefighter grievances
. . . .
Step 4. If unsatisfied with the decision of the City
Manager, the Association may submit the grievance to binding
arbitration by giving written notice of its intention to do
so within seven (7) calendar days after receipt of the City
manager's decision.
. . . .
Section 4. Arbitration. Within fifteen (15) days of
the delivery of written notice of intent to arbitrate by any
party, as provided in Section 2 or 3 or this Article, the
City and the Association shall jointly select one impartial
arbitrator. If the parties are unable to agree on the
selection on an arbitrator within that period, either may
petition the American Arbitration Association, in accordance
with its rules and procedures, to proceed with the selection
of an impartial arbitrator.
No arbitration procedure had been scheduled or conducted and no formal
notice of intent to withdraw from arbitration had occurred prior to
the hearing herein. At hearing the Association indicated that it
intends to forego arbitration if the Board considers the merits of the
refusal to bargain charge which the Association filed based upon the
identical facts as the grievance.
On October 6, 1988 the City and the Association executed contracts
covering the rank-and-file unit effective for the periods April 1, 1987
through March 31, 1988 and April 1, 1988 through June 30, 1990.
DISCUSSION
The Association charges that the City has unlawfully effected
unilateral changes in Sick Leave Policy, Wages, Negotiations Leave,
Scope of Work and Safety. As is more fully explained herein we find
that the dispute over sick leave confirmation policy is more
appropriately addressed in the parties' contractual grievance-
arbitration procedure. As for the balance of the Association's
charges we find that the record does support a finding of a refusal to
bargain Wages. Finally, we do not consider this case to be an
appropriate one for the award of the attorney fees and/or costs to
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either party.
Sick Leave Confirmation
We first address our decision to defer the issue of the alleged
change in sick leave confirmation policy. The City moved to dismiss
the sick leave confirmation portion of the complaint because it would be
more appropriately entertained in the parties' grievance-arbitration
procedure.5 The Association asserts that "[o]n March 3, 1988, the
City unilaterally and selectively commenced to require physician's
certificates as a condition of allowing certain firefighters to return
from sick leave." The Association also asserts that the changed
policy violates both Article X of the parties' contract, which
requires only that a firefighter call in when able to return for duty,
ana the parties' past practice because physicians' certificates have
never been required.
The City claims that its requirement that an employee produce a
doctor's slip before being allowed to return to work is permitted by
______________________
5Although a motion for "dismissal" may be appropriate in the case
of post-arbitral deferral, where the matter at issue has been disposed
of in arbitration prior to the making of the motion, where, as here,
the request is for pre-arbitral deferral the motion is more
appropriately one of stay of the Board's proceedings. The confusion
in this regard may be attributable to the differences in the proce-
dures of the National and Maine Boards. The National Labor Relations
Board (NLRB) routinely speaks of dismissing unfair labor practice
(ULP) complaints (in our jurisdiction prohibited act complaints or
PPC'S) and deferring to arbitration, while maintaining jurisdiction:
[F]or the limited purpose of entertaining an appropriate and
timely motion for further consideration upon a proper showing
that either (a) the dispute has not, with reasonable prompt-
ness after the issuance of [the deferral] Decision and Order,
either been resolved by amicable settlement in the grievance
procedure or submitted promptly to arbitration, or (b) the
grievance or arbitration procedures have not been fair and
regular or have reached a result which is repugnant to the
[National Labor Relations] Act.
United Technologies Corp., 268 NLRB 557, 561 (1984). Resumption of
the processing of the deferred ULP charge upon the occurrence of any
of the enumerated grounds cannot be blocked on the basis of the unti-
meliness of the second filing of the complaint under the applicable
six month statute of limitations because the NLRB's jurisdiction is
over timely-filed charges. ULP charges are filed with the NLRB's
Regional offices. Complaints, on the other hand, are filed by the
NLRB's General Counsel's office, which prosecutes well-founded ULP
-16-
Articles X and XIX6 of the parties' agreement.
Inasmuch as the charged violation and the City's defense thereto
are contractually based, the parties' dispute is imminently suscep-
tible to resolution in the parties' mutually agreed arbitation proce-
dure. In light of these facts and in accordance with our longstanding
policy, we defer. See generally Teamsters Local Union No. 48 v. City
of Calais, No. 80-29, 2 NPER 20-11018 (Me.L.R.B. May 13, 1980);
MSAD #45 Teachers Association v. MSAD #45 Board of Directors, No. 78-10
(Me.L.R.B. Jan. 24, 1978); Bangor Education Association v. Bangor
School Committee, No. 76-11 (Me.L.R.B. July 31, 1976); Tri-22 Teachers
Association v. MSAD No. 22, No. 75-28 (Me.L.R.B. Sept. 9, 1975).
The Board's deferral policy was extensively discussed in MSEA v.
State, No. 86-09 slip op. at 5-6 (Me.L.R.B. Apr. 23, 1986). We think
that discussion bears repeating here:
Deferral to the arbitral process is the preferable
course in cases such as the instant one where the alleged
refusal to bargain may be cognizable both as a prohibited
practice and as a breach of contract. This policy gives
full effect to the parties' agreement to summit contract
disputes to arbitration. In this respect we agree with the
rationale contained in the following statement made by the
____________________
charges. Therefore, dismissal of the NLRB complaint is not the same
thing as dismissal of the ULP charge. Before the Maine Board, the PPC
charge and the complaint are the same because the charging party pro-
secutes its own complaint or charge.
6Article XIX, Inconsistent Rules, Requlations and Ordinances, pro-
vides, in pertinent part:
The City may adopt such rules, regulations, ordinances,
or charter provisions as it deems necessary for the operation
of the Fire Department and the conduct of its employees, pro-
vided such rules do not conflict with any of the provisions
of this Agreement. Any disagreements between the City and
the Association as to whether or not a particular rule, regu-
lation, ordinance conflicts with this Agreement shall be
resolved by the arbitration procedure as outlined in Article
XI of this collective bargaining Agreement.
To the extent any rule, regulation, or ordinance is
found to be inconsistent with this collective bargaining
Agreement, this collective bargaining Agreement shall pre-
vail to the extent of the inconsistency.
-17-
National Board in National Radio Co., 198 NLRB 527, 531
(1972), quoted in United Technologies Corp., 268 NLRB 557,
559 (1984):
Here . . . an asserted wrong is remediable in
both a statutory and a contractual forum. Both
jurisdictions exist by virtue of congressional
action, and our duty to serve the objectives of
Congress requires that we seek a rational accom-
modation within that duality. We may not abdi-
cate our statutory duty to prevent and remedy
unfair labor practices. Yet, once an exclusive
agent has been chosen by employees to represent
them, we are charged with a duty fully to protect
the structure of collective representation and
the freedom of the parties to establish and main-
tain an effective and productive relationship.
In this context, absention simply cannot
be equated with abdication. We are, instead,
adjuring the parties to seek resolution of
their dispute under the provisions of their own
contract and thus fostering both the collective
relationship and the Federal policy favoring
voluntary arbitration and dispute settlement.
Moreover, we agree with the following statements by the National Board
regarding the similar policy considerations under the National Act:
It is fundamental to the concept of collective bargaining
that the parties to a collective-bargaining agreement are
bound by the terms of their contract. Where an employer and
a union have voluntarily elected to create dispute resolu-
tion machinery culminating in final and binding arbitration,
it is contrary to the basic principles of the Act for the
Board to jump into the fray prior to an honest attempt
by the parties to resolve their disputes through that machi-
nery. For dispute resolution under the grievance-
arbitration process is as much a part of collect bargaining
as the act of negotiating the contract. In our view, the
statutory purpose of encouraging the practice and procedure
of collective bargaining is ill-served by permitting the
parties to ignore their agreement and to petition this Board
in the first instance for remedial relief. (Footnote
omitted).
United Technoloqies Corp., 268 NLRB 557, 559 (1984). We have previously
discussed our exercise of discretion in this respect as follows:
The Maine Board has not been indiscriminate in deferring to
arbitration and has refused to defer on many previous occa-
sions. [footnote citing cases omitted] The present case is
suited to resolution by arbitration because the bargaining
-18-
agreements and their meaning are at the center of the
dispute. Where deferral is to a scheduled prospective
arbitration, the Board, while deferring, maintains jurisdic-
tion over the prohibited practice complaint for the purpose
of taking appropriate action should further proceedings be
required. See Council #74, AFSCME v. City of Banqor, No.
80-50 [, 2 NPER 20-11041] (Me.L.R.B. Sept. 22, 1980); MSAD
#45 Teachers Association v. MSAD #45 Board of Directors, No.
78-10 (Me.L.R.B. Jan. 24, 1978).
MSEA v. State, No. 86-09, slip op. at 5-6 (Me.L.R.B. Apr. 23, 1986).
The parties should contact the Board within ten (10) calendar days of
any settlement or award in this matter. Motions for resumed pro-
cessing of the prohibited act complaint charge must be made within
twenty (20) calendar days after any award.
The 4 Percent Wage Increase
We now turn to the question of whether the City's implementation
of a 4 percent wage increase retroactive to March 31, 1987, constitutes
an unlawful unilateral change in violation of 26 M.R.S.A. 964(1)(E)
(1988). It is axiomatic that a public employer may not effect unila-
teral changes in mandatory subjects of bargaining. We have discussed
this prohibition of unilateral change on many occasions as follows:
Changes in the mandatory subjects of bargaining implemented
unilaterally by the public employer contravene the duty to
bargain created by 965(1) of the Act and violate 26
M.R.S.A. 964(1)(E). The rationale behind this principle
of labor law is that an employer's unilateral change in a
mandatory subject of bargaining "is a circumvention of the
duty to negotiate which frustrates the objectives of [the
Act] much as does a flat refusal." NLRB v. Katz, 369 U.S.
736, 743, 82 S.Ct. 11O7, 1111, 8 L.Ed.2d 230 (1962); Lane v.
Board of Directors of M.S.A.D. No. 8, 447 A.2d 806, 809-81O
(Me. 1982).
In order to constitute a violation of 964(1)(E),
three elements must be present. The public employer's
action must: (1) be unilateral, (2) be a change from a
well-established practice, and (3) involve one or more of
the mandatory subjects of bargaining. Banqor Fire Fiqhters
Association v. City of Bangor, No. 84-15, slip op. at 8
[, 6 NPER 20-15O11] (Me.L.R.B. Apr. 4, 1984). An employer's
action is unilateral if it is taken without prior notice to
the bargaining agent of the employees involved in order to
afford said representative a reasonable opportunity to
demand negotiations on the contemplated change. City of
Banqor v. AFSCME, Council 74, 449 A.2d 1129, 1135 (Me. 1982).
-19-
Coulombe v. City of South Portland, No. 86-11, slip op. at 11-12,
9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986) (quoting Teamsters Local
Union No. 48 v. Eastport School Department, No. 85-18 slip op.
at 4, 8 NPER ME-17003 (Me.L.R.B. Oct. 10, 1985)).
The parties' contract specifies that its terms and provisions
shall remain in effect after the March 31, 1987 expiration date if the
parties are engaged in interest arbitration pursuant to the MPELRL.
Because the MPELRL contains a limitation on the duration of contracts
of three years, see 26 M.R.S.A. 965(D) (1988), the parties'
agreement regarding the level of benefits, including wages, continued
in effect until three years from the effective date of April 1, 1985,
or until March 31 of 1988. On the basis of the wording of the collec-
tive bargaining agreement in this regard we conclude that the City was
contractually bound, after the Association's interest arbitration
request, filed on February 3, 1988, to continue contractually-
established wages and other benefit levels unchanged, while that
arbitration was pending, until March 31 of 1988.
The parties' agreement in this regard bars the applicability of
a justification of unilateral implementation predicated on impasse
prior to March 31, 1988. Even were we to conclude that unilateral
changes within the contemplation of an employer's last best offer
effectuated prior to the completion of pending impasse resolution pro-
cedures are lawful, we would not find such changes to be permissible
if their effectuation operated as it does in the present case, to
change wages, hours or terms and conditions of employment concerning
which the parties have reached written agreement. We find that the
wage increase constitutes an unlawful unilateral change in violation
of 26 M.R.S.A. 964(1)(E) (1988). Since to do so would be inequitable,
we shall not order firefighters to return the unlawfully granted 4
percent increase in wages.
The parties adduced evidence to establish whether the employer's
last best offer included a proposal of retroactivity or no retroac-
tivity. Our holding in respect of the wage issue obviates the
requirement that we resolve this dispute. Accordingly, we shall make
no credibility resolution regarding the testimony on this matter.
-20-
Although we have decided this matter on other grounds, the issues
giving rise to it have caused us to reexamine our precedent regarding
the post-impasse implementation of employer last best offers.7 We
have also examined the applicable precedent of many, if not most, of
the nation's other public sector jurisdictions in this regard.8 Upon
consideration we now decide that absent extraordinary circumstances
not present in the instant case, the express provisions of the MPELRL,
compel a conclusion that no such implementation regarding a mandatory
subject of bargaining may occur prior to the completion of requested
impasse resolution procedures regarding that subject.
Bargaining agents and public employers function differently,
serve different interests and often represent antagonistic views which
_____________________
7See Easton Teachers Association v. Easton School Committee, No.
79-14, 1 NPER 20-10004 (Me.L.R.B. Mar. 13, 1979) (no lawful implemen-
tation on impasse where parties were negotiating and employer can-
celled working conditions proposed continued by employer in
fact-finding); MSAD No. 22 Non-Teachers Association v. MSAD No. 22
Board of Directors, No. 79-32, 1 NPER 20-10024 (Me.L.R.B. July 30,
1979) (parties found to be at impasse on initiation of fact-finding);
MSAD No. 43 Board of Directors v. MSAD No. 43 Teachers Association,
Nos. 79-36, -39, -45 & -47, 1 NPER 20-10027 (Me.L.R.B. Aug. 24, 1979)
(insistence "to impasse (i.e. fact-finding) about its non-mandatory
school calendar proposal . . . constitutes a per se violation of 26
M.R.S.A. Section 964(2)(B)"); MSEA v. State, No. 80-09, 2 NPER 20-11OO1
(Me.L.R.B. Dec. 5, 1979) (even where parties are at impasse, they
should meet at least one more time if either tenders a statutory ten-
day bargaining request); Sanford Fire Fiqhters Association, Local 1624,
IAFF v. Sanford Fire Commission, No. 79-62 (Me.L.R.B. Dec. 5, 1979)
(termination of working conditions at expiration of contract in
absence of bona fide impasse and in fashion inconsistent with last
best offer found unlawful); MSEA v. State, No. 79-43, 2 NPER 20-11002
(Me.L.R.B. Dec. 6, 1979) (where new proposals are made or circumstan-
ces establishing impasse change obligation to bargain may resurface);
Teamsters Local Union No. 48 v. Town of Livermore Falls, No. 80-22,
2 NPER 20-11039 (Me.L.R.B. Aug. 20, 1980) (violation where employer
acted inconsistently with its impasse position); Westbrook Police
Unit of Local 1828, Council 74, AFSCME v. City of Westbrook, No. 81-53
(Me.L.R.B. Aug. 6, 1981) (lawful implementation of change in promo-
tions policy after impasse by effectuation of last best offer); Maine
Teachers Association v. Saco School Committee, No. 84-10, 6 NPER
20-15007 (Me.L.R.B. Mar. 9, 1984) (impasse found in repeated demands
and refusals to bargain over permissive subject); Auburn Firefiqhters
Association Local 797, IAFF v. Valente, No.
87-19, 10 NPER ME-18017
(Me.L.R.B. Sept. 11, 1987) (pendency of union mediation request, lack
of tentative agreements and shortness of negotiations among totality
of circumstances establishing no bona fide impasse).
8See Modesto City Schools v. Modesto Teachers Association/CTA/NEA,
-21-
preclude their codetermination of the wages, hours, and terms and con-
dition of employment of affected employees. However, unlike the cir-
cumstances with contracting parties outside the context of collective
bargaining, the parties in negotiations conducted pursuant to the MPELRL
do not possess the option of walking away from contract talks in which
their bargaining efforts have failed to produce contract closure.
The parties' relationship and ultimately the governmental
enterprise dependent upon their stewardship cannot be allowed to grind
to a standstill based on the parties' inability to compose their dif-
____________________
7 PERC 1 14090, 5 NPER 05-14090 (Cal.P.E.R.B. 1983); Branford Board of
Education and Branford Education Association, No. 2274, 6 NPER 07-15012
(Ct.B.L.R. Feb. 17, 1984); Florida School for the Deaf and Blind
Teachers Association v. Florida School for the Deaf and Blind, 11 FPER
1 16080, 7 NPER 1O-16080 (Fla.P.E.R.C. 1985); Kewannee Education
Association v. Kewanee Unit School District No. 229, No. 86-CA-0081-C,
11 NPER IL-19223 (Ill.E.L.R.B. Sept. 15, 1988); Massachusetts
Organization of State Engineers and Scientists v. Labor Relations
Commission, 389 Mass.920, 452 N.E. 2d 1117, 6 NPER 22-14126 (Mass.
App.Ct. 1983) (nullified by subsequent legislative amendment of
G.L.cl5OE 9); University of Michigan and International Union of
Operating Engineers, Local 547, No. C86 L-306, 10 NPER MI-19057
(Mich.E.R.C. Mar. 15, 1988); Central Lakes Education Association v.
Independent School District No. 743, Sauk Centre, No. C6-87-401, 10
NPER MN-18010 (Minn.Ct.App. Sept. 8 1987); Lincoln County Sheriff's
Employees Association Local No. 546 I.B.P.O. v. County of Lincoln,
No. 451, 4 NPER 28-13002 (Neb.C.I.R. Feb. 11, 1982); Merrimack
Valley Federation of Teachers v. Merrimack Valley School District,
No. 86-51, 9 NPER NH-17025 (N.H. P.E.L.R.B. Aug. 7. 1986); City of
Camden and City of Camden Superior Officers Association, 11 NJPER 1
16132, 7 NPER 31-16132 (N.J.P.E.R.C. May 16, 1985); Galloway Township
Board of Education v. Galloway Township Education Association, 393
A.2d 218 (N.J. 1978); Local-2566, IAFF v. City of Cushing No. 00115,
10 NPER OK-18005 (Ok. P.E.R.B. Apr. 28, 1987); State v. City of
Fostoria, No. 84-UR-07-1650, 9 NPER OH-17057 (Oh. E.R.B. Sept. 15,
1986); Wasco County v. AFSCME, Local 2752, 6i3 P.2d 1067 (Or.Ct.App.
1980); Lehigh and Northampton Transportation Authority v. Amalgamated
Transit Union Local 956, 16 PPER 1 16061, 7 NPER 40-16061 (Pa.L.R.B.
1985); Juaniata Valley Tri-County Mental Health/Mental Retardation
Program, 13 PPER I 13293 (Pa.L.R.B. 1982); Vermont State Employees'
Association v. State of Vermont, Nos. 82-13 and -25, 5 NPER 47-13020
(Vt.L.R.B. Aug. 20, 1982); International Association of Firefiqhters,
Local 1445 v. City of Kelso, No. 2120-A PECB, 7 NPER 49-16064 (Wash.
P.E.R.C. Mar. 15, 1985); AFSCME, Local 20 v. City of Brookfield, No.
19822-C (Wis.E.R.C. Nov. 21, 1984); and Green County Deputy Sheriffs'
Association v. Green County, No. 20308-B, 7 NPER 51-16028 (Wis.E.R.C.
Nov. 1984).
-22-
ferences. Accordingly, there is a compelling and fundamental
necessity for a method of unravelling the Gordian knots which result
from collective bargaining negotiations. As such a method the concept
of the implementation of an employer's last best offer at the point of
irremedial failure to reach unanimity is one of longstanding vitality
under both the employee relations acts of this state9 and the National
Labor Relations Act.10
Under the MPELRL an employer may only implement changes within
the contemplation of its last best offer where there has been a bona
fide attempt to reach an agreement and where an impasse has resulted
despite the employer's best, good faith efforts. Additionally, any
implementation of a last best offer must be accomplished in a manner
which does not denigrate the bargaining agent. Under the MPELRL an
impasse in negotiations temporarily suspends rather than extinguishes
the bargaining obligation. Because the suspension is in effect only
during periods when the circumstances clearly indicate that agreement
is not possible, the obligation may recur whenever changed circumstan-
ces indicate the parties are not inalterably deadlocked. Finally,
because the suspension of the bargaining obligation regards only those
mandatory subjects of bargaining concerning which discussions have
become hopelessly stalemated, even where an employer is permitted to
implement its last best offer the employer must, absent exigent cir-
cumstances, give sufficient advance notice of the implementation to
permit the bargaining agent to apprise unit members and request
bargaining over any impact on mandatory subjects anticipated to result
from the planned implementation.
Good faith participation in required statutory impasse resolution
procedures is expressly incorporated as a component of the collective
bargaining obligation set forth in 26 M.R.S.A. 965(1) (1988).
Beyond the point at which further face-to-face negotiations would be
______________________
9See MSEA v. State, No. 78-23, slip op. at 4 (Me.L.R.B. July 15,
1978), aff'd, 413 A.2d 510 (Me. 1980).
10See Westchester Newspapers, Inc., 26 NLRB 630 (1940); Sam M.
Jackson, 34 NLRB 194 (1941).
-23-
useless, the collective bargaining framework established in the MPELRL
provides impasse settlement procedures facilitated by a full array of
dispute resolution specialists. Mediation services are available,
prior to interest arbitration, upon the request of either party. With
or without mediation, the services of a fact-finding panel are also
available upon joint request or the request of either party. Upon
completion of fact-finding and the panel's report of its findings and
recommendations, either party after a thirty-day cooling-off period
may publicize the report and if the parties have not resolved their
controversy within fifteen days of completion of the cooling-off
period either party individually or the parties jointly, may request
submission of the dispute to a panel of interest arbitrators. The
advisory recommendations of this panel of arbitrators regarding
salaries, pensions and insurance may be made public by the arbitra-
tors, or by either party, within ten days of receipt. The binding
recommendations of the majority of this panel regarding all other man-
datory subjects of bargaining may be made public by the arbitrator or
either party.
The intricate impasse resolution procedure set forth in the
MPELRL is designed to be complied with in its entirety. Accordingly,
absent extraordinary circumstances not present in the instant case we
will hereafter find an employer's implementation of a last best offer
prior to the completion of requested impasse resolution procedures to
constitute a per se violation of 26 M.R.S.A. 964(1)(E) (1988).
Negotiations Leave
We next consider the Association's allegation that the City has
committed an unlawful refusal to bargain by unilaterally withdrawing
the availability of paid leave to Rank-and-File Firefighters for
absences from duty occassioned by their participation on the Associa-
tion's bargaining team, in Deputy Chiefs' contract negotiations. The
record establishes that, in the past, the practice has been that
Association bargaining team members have not been required to make up
duty-time spent in negotiations. The record also establishes the
following sequence of events regarding the establishment of ground
rules for a successor Deputy Chiefs' contract. By letter of January
-24-
25, 1988, the Association requested negotiations for a successor
Deputy Chiefs' contract and invited the City's suggestions for ground
rules. Valente's acknowledgment of the Association's bargaining
demand and suggestions regarding ground rules were forwarded to the
Association on February 5, 1988. The Association responded with coun-
terproposals on February 15, 1988. To that point no mention was made
of union business or negotiations leave in any of the parties'
correspondence. Valente wrote the Association on February 29, 1988
purportedly to "clarify" the City's position concerning ground rules.
Her letter, among other things, stated:
The City will provide relief time for firefighters and
deputies attending negotiating sessions; however such
employees are expected to make up the time according to
a schedule mutually agreed upon between the Chief and
the employee.
Valente's letter also suggested that the Association contact Steve
Lewis, who would be conducting the negotiations. The Association did
so on March 5, 1988 and asked for Lewis' personal recommendations con-
cerning ground rules. Lewis responded on March 18, 1988, that
Valente's February 5 and 29, 1988 letters were the City's position.
Lewis explained the make-up requirement at one of the parties' sub-
sequent negotiating sessions. After reaching tentative agreement on a
few matters, the Association abandoned its unsucessful ground rules
proposals in favor of commencing negotiations when agreement on a
number of them was not forthcoming. No written agreement on ground
rules was made. The parties' prior and present agreements do not con-
tain provisions concerning union negotiations leave and no demand for
such was made prior to the commencement of negotiations for the Deputy
Chiefs' agreement in 1988.
There is no allegation or record evidence of a demand to bargain
any change in past practice concerning union business or negotiations
leave by the Association. There is similarly no evidence or allega-
tion of an objection to the requirement of make-up of duty time spent
in the Deputy Chief negotiations. No Deputy has been required to make
up time because Deputies have not been included on the Associations'
Deputy Chiefs' bargaining team. That team has instead been composed
solely of firefighters. Two firefighters have swapped duty to accom-
-25-
modate the make-up policy and one Association firefighter member now
owes the City three hours. The record fails to establish that the
Association made any formal effort to preserve any entitlement it may
have had to paid union negotiations leave, based on past practice,
prior to the commencement of the present action. In light of these
circumstances we think it reasonable to conclude that the Association
has clearly and unmistakenly waived, through inaction, any right it
may have had to paid negotiations leave and any right it may have had
to negotiate same. Moreover, we conclude that no violation occurred
on the more fundamental ground that negotiations leave in the cir-
cumstances of this case are not mandatorily negotiable.
Ordinarily the issue of the availability of union business or
negotiations leave and the question of whether any such leave shall be
paid both would constitute mandatory subjects of bargaining when the
anticipated union business forming the basis of the leave pertains to
the bargaining unit of which the bargaining team or business represen-
tatives are members. However, where, as here, the union business for
which the proposed leave is anticipated relates solely to a bargaining
unit other than that of which the intended beneficiaries are members,
we find that there is no relation to the wages, hours or terms and
conditions of employment of the proposed beneficiaries significant
enough to require mandatory bargaining.
Safety
We now undertake the determination of the Association's allega-
tion that by issuing order #58 on February 17, 1988, the City has
"unilaterally reorganized firefighting assignments and scope of work
of all Rank and File firefighters, including particularly
Lieutenants," "notwithstanding the subject was being negotiated by the
parties." We find that the City has not violated the MPELRL by imple-
menting the departmental reorganization announced in order #58.
The exact terms of the Association's safety proposals in nego-
tiations prior to factfinding were not established at hearing. The
record does establish that over the course of negotiations the
Association proposed the adoption of safety rules with respect to
firefighting operations "such as how many men to trail a hose, how
-26-
many men to go onto a roof to vent." Valente testified that the City
conceptualized the Association's proposals in this regard "primarily
in terms of staffing," and "that the issue was how many people would
be on duty, and therefore it was not an appropriate issue for
bargaining."
At fact-finding the Association proposed eleven specific rules
directly related to job safety, although the exact terms of these pro-
posals were not related to the Board at hearing. The Association's
last proposal, dated December 12, 1987, was conveyed in an Association
letter to the City dated January 4, 1988. There is no indication of
whether the Association's final fireground task manning proposals
represent a change from existing departmental fireground task manning
practice or merely a memorialization of manning levels already in
place. "As of [the date of] the last offer made by the City prior to
the [Association's] request for arbitration, the position of the City
[on the safety issue] was that it would agree to an ad hoc committee
to be appointed to study safety issues and make recommendations as to
how they ought to be dealt with." The parties' ultimate collective
bargaining agreement contains language adopting the recommendation of
the fact-finders, that an ad hoc committee be established "to examine
the matter of safety in the Fire Department."
On February 9 and 10, 1988, the Chief conducted an informational
meeting with the Captains and the Association officers, respectively.
This meeting was held to explain the reorganization, to answer
questions and receive input. The Association made no separate demand
to bargain order #58 or any impact thereof. On February 17, 1988, the
City issued order #58 which implemented effective February 22, 1988,
the first changes in manning since manning levels for apparatus were
established on November 8, 1984, by way of order #41. The express
terms of order #58 affect only the distribution of the Department's
men and equipment. Nothing in order #58 specifically addresses change
in the number of firefighters performing tasks on the fireground.
Although there was some very general evidence that as a result of
order #58 firefighters on the fireground "were working in groups of
threes rather than in groups of twos," there is no specific evidence
which establishes that the increase in the size of these fireground
work groups is related to any specific proposal made by the
-27-
Association.
The Board continues to hold that minimum manning proposals are
not mandatory subjects of bargaining absent a nexus with the issues of
safety or workload. See Portland Firefiqhters Association v. City of
Portland, 478 A.2d 297 (Me. 1984). Therefore, absent a proven safety
nexus we find that the increase of one firefighter on the firegound
which resulted from the implementation of order #58 is not mandatorily
negotiable. While there is a scarcity of workload change evidence in
the record, there is evidence which establishes that as a result of
the reorganization Lieutenant Goddard no longer possesses ultimate
command of a vehicle, as the highest ranking officer aboard. Without
more we find this change de minimis. The record indicates that order
#58 resulted in a change in the Department's Standard Operating
Procedures to the extent that after order #58 "the second arriving
engine . . . [is] responsible for the needed supply line from the
hydrant." This fact was not, however, tied in with workload in any
significant manner.
The Association did establish in a generic sense that in direct
negotiations it had requested and been refused bargaining over safety
issues such as the number of men required to vent a roof and to trail
a hose. Such proposals have been found directly related to safety and
workload by the Board. See Portland Firefiqhters Association v. City
of Portland, 478 A.2d 297 (Me. 1984). However, there is no evidence
clearly demonstrating that the implementation of order #58 effected a
change, in either direction, of the number of men trailing hoses or
venting roofs. It is apparent that the Association's proposals con-
cerning the use of Self Contained Breathing Apparatus address nego-
tiable firefighter safety. Moreover, the "Safety Rules for Fireground
Operations" which the Association proposed in its final offer of
January 4, 1988 are overwhelmingly composed of negotiable safety
issues. The Association established that pressurized lines "take
quite a bit of strength and weight to control," (workload nexus) and
it established a safety nexus with regard to backup lines. The
Association also established a safety nexus with its proposals
regarding both pump operations and manning of the aerial turntable.
In addition, the Chief admitted that the Association's final
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fireground task manning proposals numbered seven through thirteen call
"for specific procedures on the fireground which relate to the safety
of the officers conducting those operations."
Although the record establishes that the City refused to bargain
over manning proposals relating to the fireground tasks of venting a
roof, trailing a hose and a number of specific fireground manning pro-
posals contained in the Association's final offer, there is no specific
violation separately alleged in the complaint in this regard.
Inasmuch as it is not alleged, we shall refrain from finding a viola-
tion respecting the City's refusal to bargain any specific Association
safety proposals. All in all, concerning the complained-of reorgani-
zation, we conclude that the record establishes at worst a de minimis
beneficial change in firefighter safety. Accordingly, that portion of
the complaint alleging an unlawful unilateral change based on order
#58 is dismissed.
Miscellaneous Charqes
The Association contends that the City's actions which we have
found to violate 26 M.R.S.A. 964(1)(E) (1988) also violate
paragraphs (A), (B) and (C) of Section 964(1). We now turn to these
allegations which with one exception we find unsubstantiated by the
record. The Association charges that the complained-of City actions
violate 26 M.R.S.A. 964(1)(A) (1988). We have held on many occa-
sions that a public employer violates this section of the MPELRL if it
engages in conduct "which, it may reasonably be said, tends to inter-
fere with the free exercise of employee rights under the Act."
Teamsters Local Union No. 48 v. Town of Oakland, No. 78-30, slip op.
at 3 (Me.L.R.B. Aug. 24, 1978); Maine State Employees Assn. v.
State Developnent Office, No. 84-21, slip op. at 8-9, 7 NPER 20-15017
(Me.L.R.B. July 6, 1984), aff'd, 499 A.2d 165, 169 (Me. 1985). A
public employer's unlawful changes in the mandatory subjects of
bargaining not only violate the statutory duty to bargain but also
inherently tend to interfere with the employees' exercise of the
bargaining rights guaranteed by the MPELRL. Teamsters Local Union
No. 48 v. Town of Jay, No. 80-08, slip op. at 4, 2 NPER 20-11008
(Me.L.R.B. Jan. 9, 1980); Lane v. Board of Directors of M.S.A.D. No. 8,
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447 A.2d 806, 810 (Me. 1982). Accordingly, we find that the unlawful
unilateral wage change in this case also constitutes a violation of 26
M.R.S.A. 964(1)(A) (1988).
The Association has established no discrimination upon which to
predicate unlawful encouragement or discouragement of union mem-
bership. Its allegation of violation of 26 M.R.S.A. 964(1)(B)
(1988), is therefore groundless and is hereby dismissed.
The Association also contends that the City's conduct violated 26
M.R.S.A. 964(1)(C) (1988). We have repeatedly noted in, clarifica-
tion, that Section 964(1)(C) of the MPELRL "is directed at the evil of
too much financial or other support of, encouraging the formation of,
or actually participating in, the affairs of the union and thereby
potentially dominating it." Teamsters Local Union No. 48 v. Town of
Fort Fairfield, No. 86-01, slip op. at 13, 9 NPER ME-17008 (Me.L.R.B.
Jan. 24, 1986); Teamsters Local Union No. 48 v. Town of Kittery, No.
84-25, slip op. at 4, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984).
Inasmuch as the City neither participated in nor otherwise supported
the activities of the Association, we hold that the City did not
violate Section 964(1)(C) of the MPELRL.
Attorneys Fees
The Association prevailed in only one of its four original
charges. Additionally, confusion in our impasse jurisprudence may
have, at least in part, given rise to the confusion of right upon
which the unilateral implementation of wages was based. Inasmuch as
the violation regarding the unilateral wage increase did not predomi-
nate over all other issues in this action, respecting total efforts in
prosecution or defense, we shall make no award of attorneys fees or
costs herein.
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
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Relations board by the provisions of 26 M.R.S.A. 968(5)(C) (1988),
it is hereby ORDERED:
1. That the City of Auburn abide by the terms of written
agreements which it concludes with the certified
collective bargaining agent of its Rank and File
Firefighters.
2. That in collective bargaining negotiations for any of
its public employees the City of Auburn cease and desist
from implementing last best offers at impasse prior to
the completion of requested impasse resolution proce-
dures provided in 26 M.R.S.A. 965(2), (3) and (4)
(1988), and required by 26 M.R.S.A. 965(1)(E) (1988).
3. That the City of Auburn cease and desist from refusing,
upon request, to negotiate over the wages, hours or
terms and conditions of employment of its Rank and
File Firefighters.
4. That the portion of the Complaint which pertains to sick
leave verification procedures be deferred to the parties'
grievance-arbitration procedure.
5. That all other allegations of the commission of
Prohibited Acts by the City of Auburn that are not
specifically mentioned in paragraphs 1 through 4
above be and hereby are dismissed.
6. That the City of Auburn shall post for sixty (60)
days, in conspicuous places where notices to its
Firefighting employees are customarily posted, and
at times when such employees customarily perform
work at those places, copies of the attached notice
to employees which states that the City will cease
and desist from the actions set forth in paragraphs
2 and 3 and will take the affirmative actions set
forth in paragraph 1. Copies of the notice shall
be signed by the City's authorized representative
prior to posting and shall be posted by the City
immediately upon receipt.11 The City shall take
reasonable steps to ensure that the notices are not
altered, defaced, or covered by other materials;
and
______________________
11In the event that the Board's Decision and Order is appealed and
is affirmed by the Maine Superior Court, the words in the Notice
"Posted by Order of the Maine Labor Relations Board" shall be altered
to read "Posted by Order of the Maine Labor Relations Board, affirmed
by the Maine Superior Court."
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7. The City shall notify the Board by affidavit or
other proof of the date of posting and of final
compliance with this order.
Dated at Augusta, Maine, this 31st day of March, 1989.
MAINE LABOR RELATIONS BOARD
The parties are advised /s/__________________________
of their right pursuant William M. Houston
to 26 M.R.S.A. 968(5)(F) Chairman
(1988) to seek review of
this decision and order
by the Superior Court by /s/__________________________
filing a complaint in Thacher E. Turner
accordance with Rule 80C Employer Representative
of the Rules of Civil
Procedure within 15 days
of the date of this
decision. /s/__________________________
George W. Lambertson
Employee Representative
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POSTED PURSUANT TO AN ORDER OF THE
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO PRESENT EVIDENCE, IT
HAS BEEN DETERMINED THAT WE HAVE VIOLATED THE LAW AND WE HAVE BEEN ORDERED TO
POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE LABOR RELATIONS
BOARD AND ABIDE BY THE FOLLOWING:
WE WILL abide by the terms of written agreements concluded with the
certified collective bargaining agent of our Rank and File Firefighters.
WE WILL cease and desist from implementing last best offers at impasse
prior to the completion of requested impasse resolution procedures
provided in 26 M.R.S.A. 965(2), (3) and (4) (1988), and required by
26 M.R.S.A. 965(1)(E) (1988).
WE WILL cease and desist from refusing, upon request, to negotiate
over the wages, hours or terms and conditions of employment of our
Rank and File Firefighters.
_____________ ____________________________ ___________________
Date For the City of Auburn by Title
This notice must remain posted for 60 consecutive days from the date of posting.
Any questions concerning this notice or compliance with its provisions may be
directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.