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. -1- 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 -2- 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. -3- 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. -4- 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. -5- 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. -6- 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. -7- 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 -8- 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 -9- 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. -10- 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 -11- 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 -12- 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 -13- 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 -14- 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 -15- 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 -28- 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, -29- 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 -30- 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." -31- 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 -32- 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.