Portland Firefighters Association, Local 740, I.A.F.F. v. City of Portland, No. 83-01 (June 24, 1983); aff'd sub nom. Portland Firefighters Association v. City of Portland and Maine Labor Relations Board, No. CV-83-326 (Me. Super. Ct., Ken. Cty., Nov. 14, 1983); correction issued (Me. Super. Ct., Ken. Cty., Nov. 18, 1983); aff'd 478 A.2d 297 (Me. 1984) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-01 Issued: June 24, 1983 ____________________________________ ) PORTLAND FIREFIGHTERS ASSOCIATION, ) LOCAL 740, INTERNATIONAL ASSOCIA- ) TION OF FIREFIGHTERS, AFL-CIO, ) ) Complainant, ) DECISION AND ORDER ) v. ) ) CITY OF PORTLAND, ) ) Respondent. ) ____________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on July 12, 1982 by the Portland Firefighters Association, Local 740, IAFF (Local 740). Local 740's complaint alleges that the City of Portland (City) violated 26 M.R.S.A. Section 964(1)(A) and (E) by refusing to negotiate about several proposals regarding minimum manning in the Fire Department. The City filed an answer and a counter-claim on July 26, 1982, alleging that it is not obligated to bargain about the minimum manning proposals and that Local 740 violated 26 M.R.S.A. Section 964(2)(B) by insisting that the proposals be negotiated. Local 740 filed an amendment to its complaint on October 6, 1982. The City filed a response to the amendment on October 22, 1982. A pre-hearing conference on the case was held on September 28, 1982, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on September 28th a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. On November 19, 1982 the parties filed a stipulation of some of the facts of the case. Hearings on the case were held on November 23 and December 6, 1982, Alternate Chairman Webber presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. Local 740 was represented by Martin S. Hayden, Esq., and the City by Harry R. Pringle, Esq. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. -1- JURISDICTION Local 740 is the bargaining agent within the meaning of 26 M.R.S.A. Section 968(5)(B) for the firefighters, lieutenants, and captains employed by the Portland Fire Department. The City is a public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in 26 M.R.S.A. Section 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. On April 22, 1982 Local 740 and the City began negotiating for a collective bargaining agreement to succeed an agreement due to expire on June 1, 1982. Among the proposals which Local 740 raised for negotiations during the first bargaining session was one proposing that the following new article be added to the contract: "the minimum manpower per shift will be 52 not including the Deputy Chief on duty." 2. At a bargaining session on June 1, 1982 the City's negotiator stated that the City believed that the minimum manning proposal did not fall within the categories of wages, hours or working conditions and that consequently the City was not obligated to bargain about the proposal. The City reiterated its position in a letter dated June 16, 1982 to Local 740 and suggested that negotiations be resumed so that the parties' remaining proposals could be discussed. 3. Local 740 responded to the City's letter on July 1, 1982, stating it was willing to resume negotiations if the City would bargain about the issue of minimum manpower assignments. On July 12th the City stated in a letter that it regretted Local 740's decision to condition further negotiations on the City's agreement to bargain over the minimum manning proposal. 4. On September 10, 1982 Local 740 proposed that negotiations be resumed, stating that it was expanding its original minimum manpower proposal to include proposals setting minimum manpower assignments either per shift, per station or per truck. The City responded on September 14th, stating that the alternative proposals were merely reformulations of the original proposal. No further bargaining had occurred at the time of the hearings of this case. -2- 5. Between 1980 and 1982, the total authorized strength of the Fire Department decreased from approximately 220 employees to about 190 employees. During the same time period there was a reduction in the number of firefighter injuries which resulted in lost time, from about 98 injuries in 1980 to an es- timated 66 injuries in 1982. 6. The way firefighters are deployed at the scene of a fire has a significant effect on the firefighters' safety and workload. A number of tasks typically performed at fires - such as laying hoses, engaging in search and rescue missions, putting up ladders, and ventilating the roof - usually require more than one firefighter. When there is an insufficient number of firefighters available at the scene, the firefighters performing these jobs are subject to greater risks of injury and to an increased workload. DECISION At issue is the question whether Local 740's minimum manpower assignment proposals are mandatory subjects of bargaining. If the proposals are manda- tory subjects, then the City violated 26 M.R.S.A. Section 964(1)(A) and (E) by refusing to bargain about them.[fn]1 If the proposals are not mandatory subjects, then Local 740 violated 26 M.R.S.A. Section 964(2)(B) if it insisted to impasse on bargaining about them.[fn]2 See, e.g., NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349-350, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Brunswick Teachers Association v. Brunswick School Board, MLRB No. 82-28 at 4 (Aug. 9, 1982). We find that the minimum manning proposals are not mandatory subjects of bargaining and that Local 740 insisted to impasse that the City bargain about them. We will order Local 740 to cease and desist from insisting that the City bargain about the _______________ 1/ Section 964(1)(A) prohibits public employers from "[i]nterfering with, re- straining or coercing employees in the exercise of the rights guaranteed in Section 963." Among other things, Section 963 grants public employees the right to engage in collective bargaining. Section 964(1)(E) prohibits public employers from "[r]efusing to bargain collectively with the bargaining agent of its employees as required by Section 965." Section 965 defines the duty to bargain. 2/ Section 964(2)(B) prohibits public employee bargaining agents from "[r]efusing to bargain collectively with a public employer as required by Section 965." -3- proposals. A bargaining proposal is a mandatory subject of bargaining if it is significantly and materially related to "wages, hours, working conditions and contract grievance arbitration." 26 M.R.S.A. Section 965(1)(C); see also Council 74, AFSCME v. Ellsworth School Committee, MLRB No. 81-41 at 11-12 (July 23, 1981). Local 740 urges that its minimum manning proposals are significantly related to firefighters' safety and workload and that the proposals therefore are mandatory subjects of bargaining. While we agree that proposals related to safety or workload are mandatory subjects, see, e.g., NLRB v. Gulf Power Co., 384 F.2d 822, 824-825 (5th Cir. 1967); Little Rock Downtowner, Inc., 145 NLRB 1286, 1304-1305 (1964), we do not agree that the proposals at issue in this case are sufficiently related to safety or workload to make them mandatory subjects. The record shows that the use of firefighters at the scene of a fire has a significant effect on the firefighters' safety and workload. For example, it is safer for the firefighters and often more efficient in terms of fighting the fire to use a 2-1/2 inch water hose inside a burning building. Since it takes two firefighters to handle a 2-1/2 inch hose, however, a 1-1/2 inch hose, which can be handled by one firefighter but which of course provides less water pressure, often is used due to the unavailability of a second fire- fighter. Similarly, most fire departments have a policy which prohibits a firefighter from entering a burning building alone. Despite the hazards, however, firefighters do on occasion enter burning buildings alone, particularly when there is a possibility that people may still be inside the building. There are a number of other jobs frequently performed at fires - such as putting up ladders or ventilating a roof - for which the number of firefighters available to perform the task is directly related to firefighter safety and workload. Local 740 proposed to negotiate minimum manpower assignments either per shift, per station or per truck. We think it clear that minimum manpower assignments either per shift or per station are not sufficiently related to the number of firefighters at the scene of a fire to make the per shift or per station proposals mandatory subjects of bargaining; the number of firefighters on-duty per shift or per station does not necessarily insure an adequate number of firefighters at a fire scene. We also cannot say that the number of firefighters per truck is sufficiently related to the number of firefighters available to perform various tasks -4- at the scene to make the per truck proposal a mandatory subject. As we have noted, the number of firefighters who perform a particular task - such as laying a hose, engaging in a search and rescue mission, or ventilating a roof - is directly related to safety and workload, but the proper way of establishing the correct number of firefighters to perform such tasks is by negotiating work rules and procedures addressed to each specific task. We assume the City will negotiate about matters regarding safety and deployment of firefighters at fire scenes. We believe the evidence showing a decline in the number of firefighter injuries during the 1980-82 period despite a decline in the number of firefighters employed by the City supports our finding that Local 740's proposals are not directly related to safety or workload issues. In short, we conclude that the minimum manning proposals are not mandatory subjects of bargaining and that the City was not obligated to bargain about them.[fn]3 See, e.g., IAFF, Local 589 v. Helsby, 59 App. Div. 2d 342, 399 N.Y.S.2d 334, 335 (1977), motion for leave to appeal denied, 43 N.Y.2d 649, 403 N.Y.S.2d 1027 (N.Y. 1978); see also City of New Rochelle v. Crowley, 61 App. Div. 2d 1031, 403 N.Y.S.2d 100 (1978). Local 740's prohibited practices complaint will be dismissed. We also find that Local 740 insisted to impasse that the City bargain about the minimum manning proposals. Local 740 proposed at the first bargaining session on April 22, 1982 that minimum manpower per shift be negotiated. The City refused to bargain about the proposal at a bargaining session on June 1, 1982. On July 1, 1982 Local 740 stated in a letter that it was willing to resume bargaining if the City would negotiate about minimum manpower assignments. The City continued to refuse to bargain about the issue, and on September 10, 1982 Local 740 demanded _______________ 3/ Several of the arguments presented in the City's brief regarding negotiability of the proposals are fallacious, and we expressly disavow any endorsement of them. For example, the contention that the proposals are not negotiable because minimum manning is a "management prerogative" ignores the facts that the statute contains no "management prerogative" exception to the duty to bargain and that the Law Court accordingly has on several occasions expressly rejected the argument. See, e.g., Board of Directors of M.S.A.D. No. 36 v. M.S.A.D. No. 36 Teachers Association, 428 A.2d 419, 423 n.6 (Me. 1981); State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980). Similarly, the argument that the proposals are not negotiable because of their "monetary impact" on the City is totally unsupported by the statute or the case law. The logical extension of the theory is that wages or any other item that has a monetary impact on the City is not negotiable, a proposition that obviously would render collective bargaining meaningless. We reaffirm that the test for determining the negotiability of a proposal, as we have stated on numerous occasions, is whether the proposal is significantly related to wages, hours, working conditions or contract grievance arbitration. -5- bargaining over alternative minimum manning proposals, including proposals setting minimum manning assignments either per shift, per station, or per truck. The City refused to bargain about the proposals and no further bargaining occurred. On the basis of these facts, we find that bargaining broke down over Local 740's insistence upon negotiating about the minimum manning proposals. Such insistence upon negotiating about non-mandatory subjects of bargaining constitutes a refusal to bargain in good faith, in violation of 26 M.R.S.A. Section 964(2)(B). See, e.g., NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. at 349-350; Brunswick Teachers Association at 4. We will order Local 740 to cease and desist from insisting that the City bargain about its minimum manning per shift, per station or per truck proposals. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. Section 968(5), it is hereby ORDERED: 1. That the Portland Firefighters Association, Local 740, IAFF's prohibited practices complaints filed in this proceeding are dismissed. 2. That the Portland Firefighters Association, Local 740, IAFF, and its agents, members, and bargaining agents, cease and desist from insisting that the City of Portland bargain about the minimum manning proposals. Dated at Augusta, Maine this 24th day of June, 1983. MAINE LABOR RELATIONS BOARD The parties are advised of their right, pursuant to Title 26 M.R.S.A. Section 968(5)(F), to seek review of /s/_______________________________________ this decision by the Superior Court Donald W. Webber, Alternate Chairman by filing a complaint in accordance with Rule 80B of the Rules of Civil Procedure within 15 days after receipt of this decision. /s/_______________________________________ Don R. Ziegenbein, Employer Representative /s/_______________________________________ Harold S. Noddin, Employee Representative -6-