STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 83-06
Issued: August 2, 1983
_________________________________
)
CITY OF BANGOR, )
)
Complainant )
)
v. ) DECISION AND ORDER
)
BANGOR FIRE FIGHTERS ASSOCIATION,)
)
Respondent )
_________________________________)
This is a prohibited practices case, filed pursuant to Title 26 M.R.S.A.
Section 968(5)(B) on August 24, 1982, by the City of Bangor ("Employer").
The Employer alleges that the Bangor Fire Fighters Association ("Union") has,
by refusing to withdraw its "minimum safety" proposal from the negotiations
between the parties, by submitting a "fair share" proposal to fact finding and
insisting on bargaining over the same, and by failing and refusing to honor
the Employer's request for information concerning the Union's receipts and
disbursements, intentionally frustrated the bargaining process and failed to
bargain in good faith, in violation of 26 M.R.S.A. Section 964(2)(B). The
Union, on August 31, 1982, filed an answer, to the Employer's complaint, and
a counterclaim. The Union's answer denies that any of its actions constitute
violations of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
Section 961, et seq. ("Act"). The Union's counterclaim alleges that the
Employer, by refusing to bargain over the "minimum safety" proposal and over
the "fair share" proposal, has intentionally frustrated the bargaining process
and failed to bargain in good faith, in violation of 26 M.R.S.A. Section
964(1)(E). The Employer filed an answer to the Union's counterclaim, on
September 21, 1982, denying that any of its actions constitute violations of
the Act.
Alternate Chairman Donald W. Webber presided at a pre-hearing conference
on this case, which was held on September 28, 1982. On October 1, 1982,
Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and
Order, the contents of which are incorporated herein by reference.
-1-
Hearings on the case were held on November 17, 18, and 19, 1982,
Alternate Chairman Donald W. Webber presiding, with Employer Representative
Don R. Ziegenbein and Alternate Employee Representative Russell A. Webb. The
Employer was represented by Malcolm E. Morrell, Jr., Esq., and Clare Hudson
Payne, Esq. The Union was represented by Stephen T. Hayes, Esq. Mr. Hayes,
in addition to representing the Union before the Board, also appeared as a
witness for the Union. Mr. Hayes' direct examination was conducted by
Margaret Matheson, Esq. By order dated October 18, 1982, Teamsters Local
Union No. 48 was allowed to intervene in this case, to the extent that said
Union could file a brief, as amicus curiae, herein. The parties were given
full opportunity to examine and cross-examine witnesses, introduce evidence,
and make argument. Both parties and the Intervenor have filed post-hearing
briefs, which have been considered by the Board.
JURISDICTION
The City of Bangor is the public employer, as defined in 26 M.R.S.A.
Section 962(7), of the public employees included in the bargaining unit
described below. The Bangor Fire Fighters Association is the bargaining agent,
within the meaning of 26 M.R.S.A. Section 962(2), for a bargaining unit
composed of all uniformed employees and dispatchers of the Bangor Fire
Department, excluding the Fire Chief, Assistant Chiefs, and temporary
employees. The jurisdiction of the Maine Labor Relations Board ("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. The City of Bangor, a municipal corporation in the County of
Penobscot, State of Maine, having its principal office at 73 Harlow Street,
Bangor, Maine, is the public employer, as defined in 26 M.R.S.A. Section
962(7), of the public employees who are included in the bargaining unit
described in paragraph 2 below.
2. The Bangor Fire Fighters Association, a part of Local 1599,
International Association of Fire Fighters (AFL-CIO) and having an office at
the Central Fire Station, 289 Main Street, Bangor, Maine, is the bargaining
agent, within the meaning of 26 M.R.S.A. Section 962(2), for a bargaining
unit composed of all uniformed employees and dispatchers employed by the
Bangor Fire Department, excluding
-2-
the Fire Chief, Assistant Chiefs, and temporary employees.
3. John R. Perry is the Personnel/Labor Relations Director for the
Employer and was the chief negotiator therefor.
4. Negotiations for the Union were handled by a bargaining committee
which consisted of Harold Russell, President of the Union; Mark Kamen, Vice
President and Treasurer for the Union; Vance Tripp, Secretary of the Union;
James Cook and Richard Cheverie, all members of the Union. Stephen T. Hayes
is the attorney for the Union and Rodney Pierce is a labor consultant to the
Union and both are members of the Union's negotiating team.
5. The Union and the Employer entered into a collective bargaining
agreement on May 13, 1980 and said agreement expired on December 31, 1981.
Since December 31, 1981 and at all times relevant hereto, said collective
bargaining agreement remained in full force and effect, pursuant to Article
36, Section 2 thereof.
6. From the Fall of 1981 and at all times relevant hereto, the parties
were in the process of bargaining for a successor collective bargaining agree-
ment, to that mentioned in the preceding paragraph.
7. The Union's original bargaining proposal, presented in the Fall of
1981, contained a new proposed article, for inclusion in the successor
collective bargaining agreement, entitled "Minimum Safety." At the first
negotiating session, some of the numbers, contained in said proposals, were
amended.
8. The bargaining proposal, mentioned in the preceding paragraph, is as
follows:
"Minimum Safety
The number of men on duty for response with apparatus shall be
sufficient to maintain ma[nn]ing of each company as follows:
High Value Companies
First Alarm response to high value districts
Companies Number of Fire Fighters
Engine Company 4
Ambulance 2
Snorkle 2
Aerial Ladder Company 1(4)
Rescue 1(2)
Other Companies in Other Districts
Engine Companies 4
Tanker 1
Aerial Ladder Company 1(4)
-3-
Airfield Districts
Major Crash Vehicles 2(4)
Quick Response Vehicles 1(2)"
The numbers appearing in parenthesis above represent the amendments to said
proposal mentioned in the preceding paragraph.
9. The Employer has demanded that the proposal outlined in the preceding
paragraph be withdrawn, contending that the same is, in effect, a minimum
manning requirement.
10. In response to the Employer's demand, mentioned in the preceding
paragraph, the Union refused to withdraw its "Minimum Safety" proposal from
the bargaining table.
11. The negotiations between the parties have proceeded through mediation
and fact-finding.
12. At fact-finding, the Union presented the following:
"The Bangor Fire Fighters Association proposes to add the
following article to the contract:
New Article
The number of men on duty for response with apparatus shall
be sufficient to maintain manning of each company as follows:
High Value Companies
First Alarm response to high value districts
Companies Number of Fire Fighters
Engine company 4
Ambulance 2
Snorkle 2
Aerial Ladder Company 4
Rescue 2
Other Companies in Other Districts
Engine Companies 4
Tanker 1
Aerial Ladder Company 4
Airfield Districts
Major Crash Vehicles 4
Quick Response Vehicles 2 "
13. The total number of fire fighters at the scene of a fire affects the
way
-4-
the fire is fought. The optimum way to attack a fire is usually from within
and from outside of the burning structure, simultaneously. Without a
sufficient number of fire fighters present, a fire must be fought exclusively
from the exterior of the structure involved. The latter method of attack
results in a more intense fire, more smoke being released, and greater damage
to the structure.
14. The way fire fighters are deployed at the scene of a fire has a
significant effect on the fire fighters' safety and workload. A number of
tasks typically performed at fires - such as laying and advancing hoses,
engaging in search and rescue operations, putting up ladders, and ventilating
the roof - usually require more than one fire fighter. When there is an
insufficient number of fire fighters available at the scene, the fire fighters
performing these jobs are subject to greater risks of injury and to an
increased workload.
15. The Union's original bargaining proposal, presented in the Fall of
1981, contained a new paragraph, which it proposed as an additional paragraph
to be added to Article 2 of the successor collective bargaining agreement.
16. The proposed agreement language, mentioned in paragraph 15 hereof,
reads as follows:
"ARTICLE 2 - NO DISCRIMINATION BY PARTIES
Add New Par. 6: Nonmembers of the Union must pay the local an
amount equal to 80% of the amount assessed upon members of the
Union to cover costs of representation incurred by the labor
organization that is required by law to represent all members
within the bargaining unit. Employees will have thirty (30)
days to process their payroll deduction slips with the local and
the City or they will be discharged."
17. The proposed paragraph, for inclusion in the successor collective
bargaining agreement which is cited in the preceding paragraph, is known as a
"fair share" clause.
18. At the second bargaining session between the parties, on or about
November 6, 1981, John R. Perry told the Union's negotiator at the bargaining
table that a "fair share" clause was not a mandatory subject of bargaining and
that the Union should remove said proposal from its bargaining demands.
19. On or about July 28, 1982, the Employer and the Union met to discuss
reaching agreement on a successor collective bargaining agreement. The
Employer had, shortly before said date, reached agreement with the union
representing the officers of the Bangor Police Department for a successor
collective bargaining agreement for that bargaining unit. This successor
collective bargaining agreement contains a
-5-
modified "fair share" clause.
20. The modified "fair share" clause, mentioned in the preceding
paragraph, states as follows:
"ARTICLE 1.
RECOGNITION
Section 1. The City recognizes the Union as the sole
and exclusive bargaining agent for all Police Officers
(Class 433) of the Bangor Police Department.
Section 2. Membership in the local Union is not
compulsory. Officers have the right to join, not join,
maintain, or drop their membership in the local Union, as
they see fit. Neither party shall exert any pressure on,
or discriminate against, any officer as regards such
matters. Those employees who choose not to join the union
shall be subject to one of the following options:
1. Sign a written payroll authorization
deduction in the amount of 80% of the
present cost of union dues.
or
2. Be subject to no payroll deduction but
if the services of the Union Representa-
tive is solicited for a grievance hear-
ing the cost will be $25 hourly. If the
union attorney is solicited for a griev-
ance hearing the cost will be $40 hourly.
The Union's cost of the arbitrator, or
proceedings, if any, will be borne by the
employee.
Section 3. The City agrees to deduct from the pay of all
officers covered by this Agreement the dues of the local Union
and agrees to remit to the local Union all such deductions prior
to the end of the month for which such deductions are made.
Signed authorizations from the officers shall be furnished to the
City by the Union. Dues may be cancelled by any employee upon
written notice to the Personnel Director and Local 48 within thirty
days of the expiration of this agreement.
Section 4. The Union shall indemnify and save the City
harmless against all claims and suits which may arise by reason of
any action taken in making deductions of said dues and remitting
the same to the Union pursuant to this Article."
21. At the meeting mentioned in paragraph 19 above, the Employer offered
to the Union to include the same modified "fair share" clause, as was included
in the police unit agreement and quoted in the preceding paragraph, in the
successor collective bargaining agreement for the unit represented by the
Union.
-6-
22. The Union rejected the Employer's offer, mentioned in the preceding
paragraph.
23. The Union presented the new contract language, cited in paragraph 16
hereof, to the Fact Finding Panel.
24. In light of the Union's demand for bargaining over a "fair share"
clause, noted in paragraph 15 above, John Perry verbally requested of Stephen
Hayes, on August 3, 1982 and again on August 13, 1982, that the Union turn
over to the Employer all receipts and disbursements and all financial records
for Local 1599, the Bangor Fire Fighters Association, for the period from 1972
through August, 1982.
25. Prior to the Employer's request noted in the preceding paragraph, the
Employer had, in response to a subpoena and order for production of documents
requested by the Union and by a majority of the Fact Finding Panel pursuant to
Rule 5.08(c) of the Rules and Procedures of the Maine Labor Relations Board,
produced and turned over to the Union the financial records and other material
of the City of Bangor, for the period from 1972 to August 1982.
26. In response to the Employer's request therefor, mentioned in paragraph
24 hereof, Stephen T. Hayes did refuse to voluntarily turn over the materials,
stating that it was the opinion of the Union that such materials were privi-
leged. Mr. Hayes further stated to John Perry, during negotiations held on
August 12, 1982, that, if the City of Bangor sought to acquire the records by
subpoena, the Union would seek a protective order limiting the nature of the
materials turned over and requiring them to be produced at the expense of the
Employer, similar to the manner in which material was reproduced for the Union
when it examined the financial records of the City of Bangor.
27. The Employer never sought to use the legal procedures, set forth in
the Rules and Procedures of the Maine Labor Relations Board, to attempt to
secure production of the materials contemplated in its requests, noted in
paragraph 24 above.
DECISION
Three major issues are presented in this case. The first issue is
whether the Union's minimum manning proposal, as presented and argued in
negotiations and Fact Finding, is a mandatory subject of bargaining. The
second major question is whether the Union's "fair share" proposal is a
mandatory subject of bargaining. The final major controversy is whether, if
the Union's "fair share" proposal is
-7-
a mandatory subject of bargaining, the Employer was entitled to "all receipts
and disbursements and all financial records for Local 1599, the Bangor Fire
Fighters Association, for the period from 1972 to" August 1982. We will
discuss each issue and its subsidiary questions in separate sections of this
decision.
"Minimum Manning"
The issue under consideration is whether the Union's minimum manning
proposal, presented under the label "minimum safety," is a mandatory subject
of bargaining. The specifics of the Union proposal are quoted in paragraphs
8 and 12 of the foregoing findings of fact. The Union's proposal, in essence,
provides that a fixed minimum number of fire fighters must be aboard each unit
of fire fighting apparatus, responding to a first alarm.
The issue presented by the Union's "minimum safety" proposal was decided
in our recent case of Portland Firefighters Association v. City of Portland,
MLRB No. 83-01, (June 24, 1983). We hold that the Portland decision is "on
all fours" with the factual situation herein and, therefore, said decision is
controlling in this case. In Portland, we stated as follows:
"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 sub-
jects 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."
Portland, supra, at 4. We then went on to analyze the union's proposals in
that case, one of which was similar to the Union's "per truck" proposal
herein, and stated our holding as follows:
"Local 740 proposed to negotiate minimum manpower assignments either
per shift, per station or per truck. We think it clear that minimum man-
power 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 neces-
sarily insure an adequate number of firefighters at a fire scene. We
also cannot say that the number of firefighters per truck is sufficiently
-8-
related to the number of firefighters available to perform
various tasks 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 in-
juries 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 work-
load issues. In short, we conclude that the minimum manning pro-
posals are not mandatory subjects of bargaining and that the City
was not obligated to bargain about them. 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."
Portland, supra, at 4 and 5 (footnote omitted). Following the above analysis
and decision, we hold that the Union's "minimum safety" proposal is not a
mandatory subject of bargaining.
An additional consideration, not discussed in the Portland decision, was
contemplated in reaching our above holding. A community's overall level of
fire fighting protection is a political decision, to be made by the
municipality's elected officials. Should the municipal officers, in response
to a perceived demand from their constituents to keep the municipal tax rates
low, decide to provide minimal fire fighting protection, said decision is not
subject to collective bargaining. The level of fire fighting protection is
directly related to the number of fire fighters available at the scene to
fight fires. If the number of fire fighters available at the scene of a fire
is insufficient to undertake optimum attack on a fire, both from within and
from outside of the burning structure simultaneously, the fire must then be
fought exclusively from the exterior of the structure. This latter method of
attack results in a more intense fire, more smoke being released, and greater
damage to the structure. If the number of fire fighters at the scene of a
fire is inadequate, those present should not be expected to perform the same
work which should, within reasonable limits of safety and workload, be done by
a larger number of fire fighters.
Under the facts in this case, the Union clearly insisted on bargaining
over its "minimum safety" proposal to the point of impasse. Ignoring the
Employer's
-9-
repeated requests that the proposed article be deleted from its bargaining
demands, the Union presented its manning proposal as an issue for fact finding.
Insistence on bargaining over a non-mandatory subject, as we have held the
Union's "minimum safety" to be, to the point of impasse is a violation of the
duty to bargain in good faith. S.A.D. #22 Non-Teachers Association v. S.A.D.
#22 Board of Directors, MLRB No. 79-32, at 4 (July 30, 1979). The rationale
for determining that the insistence upon a non-mandatory subject to the point
of impasse is a violation of the duty to bargain in good faith was outlined in
Woolwich School Committee v. Woolwich Teachers Association, MLRB No. 80-55
(Feb. 27, 1981). In that case, we stated:
"Insistence on bargaining a nonmandatory subject violates the
duty to bargain because 'such conduct is, in substance, a refusal
to bargain about the subjects that are within the scope of mandatory
bargaining.' NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S.
342, 349 (1958); see also MSAD No. 43 Teachers Association v. MSAD
No. 43 Board of Directors, No. CV 79-541 at 5-6 (Kennebec Cty. Super.
Ct. July 8, 1980). The Teachers Association committed a per se viola-
tion of 26 M.R.S.A. 964(2)(B) by insisting to impasse that the non-
mandatory fair dismissal proposal be negotiated. We will order the
Association to cease and desist from insisting that the School Committee
negotiate about proposals relating to fair dismissal or nonrenewal of
probationary teachers."
Woolwich, supra, at 6. Having determined that the Union's "minimum safety"
proposal is not a mandatory subject of bargaining and holding, as we do now,
that the Union violated the duty to bargain in good faith, by insisting on
negotiating over the said proposal to the point of impasse, we will grant the
relief sought by the Employer, in Count I of its complaint. We will also
dismiss Count I of the Union's counterclaim since the Employer was completely
within its rights to refuse to bargain over the Union's "minimum safety"
proposal. The Union will be ordered to cease and desist from demanding to
bargain over its "minimum safety" proposal and, further, to remove the same
from its bargaining proposal.
Although, under similar circumstances in the past, we have ordered
parties, in the Union's position, to pay some or all of the other party's
fact-finding costs, we will not do so in this case. The large number of
issues presented to the fact-finders and the Employer's conduct before said
body, discussed below, would make our approximation of the Employer's damages,
resulting from the Union's violation, highly speculative. We will, therefore,
not order that such damages be paid. MSAD #68 Teachers Association v. MSAD
#68 Board of Directors, MLRB No. 79-22, at 7 (Jan. 24, 1979). As we did in
MSAD No. 43 Board of Directors v. MSAD No. 43 Teachers Association, MLRB No.
79-36, at 7 (Decision and Order on Remand, March 18, 1981),
-10-
we believe that a cease and desist order is adequate to effectuate the
policies of the Act, in this case, and nothing more is required.
"Fair Share"
The second major issue presented in this case is whether the Union's
"fair share" proposal is a mandatory subject of bargaining. The analysis of
this question must begin with consideration of the Supreme Judicial Court's
decision in Churchill v. S.A.D. 49 Teachers Association, Me., 380 A.2d 186
(1977). In Churchill, the Law Court held that an "agency shop" provision in
a collective bargaining agreement, which provided that non-union members of a
bargaining unit pay fees equal to the union's dues, was contrary to Sections
963 and 964 of the Act. 380 A.2d, at 193. The Court analyzed the "agency
shop" question as follows:
"The 'agency shop' provision in the instant case is strictly
a union security clause designed to induce union membership on
the part of unwilling employees. While increased membership in
labor organizations and greater participation in their activities
is a legitimate goal of unions and the elimination of the free
rider would be helpful in attaining such objective, the forced pay-
ment of dues or their equivalent under an 'agency shop' clause is
tantamount to coercion toward membership or, at the very least,
toward participation in a labor organization expressly forbidden
by statute.
"Absent express authorization by the Legislature, an 'agency
shop' provision in a collective bargaining agreement between public
employees and their public employer, which exacts from non-members
as a condition of continued employment in the bargaining unit in
the guise of an 'equitable proportion of the cost of representation'
by the bargaining agent 'fees equal to but not in excess of the equiva-
lent of' dues to belong to the employee organization, is unlawful as
violative of the statute protecting the right of public employees
voluntarily to join, form and participate in the activities of organi-
zations of their own choosing.' Such a provision contravenes the
legislative policy contained in 26 M.R.S.A., 964(1)(A) prohibiting
coercion of employees in the exercise of their right of free choice
to join and participate in the activities of labor organizations."
Churchill, supra, at 192. The Court appended a footnote to the last sentence
quoted above. Said footnote reads:
"We do not intimate what our decision would be if the so-called
'agency shop' clause in the instant case had required nonjoinder
employees to pay to the bargaining agent only their proportionate
share of the costs of securing the benefits conferred upon all mem-
bers of the bargaining unit."
-11-
Idem. The Supreme Judicial Court, in Churchill, did not, therefore, hold that
the type of "fair share" proposal at issue herein was prohibited by the Act.
The only other discussion, of the status of "fair share" as a bargaining
subject, from the Supreme Judicial Court is found in the Opinion of the
Justices, Me., 401 A.2d 135 (1979). In response to questions posed by the
House of Representatives, the several Justices of the Supreme Judicial Court
opined that: (1) an 80% "fair share" provision; whereby non-union employees
in bargaining units represented by the Maine State Employees Association had
to pay 80% of normal union dues to help defray the costs of bargaining,
contract administration, and the adjustment of grievances by the certified
bargaining agent; did not violate any provisions of the Constitution of the
United States or of the Constitution of Maine, (2) that said "fair share"
provision did not violate any provisions of the State Employees Labor
Relations Act, 26 M.R.S.A. 979, et seg., and (3) no prior "evidentiary"
hearing was required the validity of the 80% payment level, as being a
reasonable "fair share" to be paid by non-union bargaining unit employees,
however, said 80% level was subject to review, for reasonableness, in an
"appropriate judicial proceeding." 401 A.2d, at 147-148. The Justices'
rationale, for answers, designated as numbers 1 and 3 above, was based upon
the decision of the United States Supreme Court in Abood v. Detroit Board of
Education, 431 U.S. 209, 97 S.Ct. 1782. 52 L.Ed.2d 261 (1977). We will
discuss the Abood decision at length below. The reasons given by the Justices
for their second above-mentioned opinion was as follows:
"The comprehensive reach of section 979-D(1)(E)(1) of the State
Employees Labor Relations Act, 26 M.R.S.A. 979 et seq., authorizes
the 'so-called "fair share" provision' addressed by this question as
a subject matter appropriate for collective bargaining and, therefore,
as lawful for inclusion in a collective bargaining agreement, unless
the provision is otherwise prohibited by 'public law.' We are asked
whether it is so prohibited by other sections of the State Employees
Labor Relations Act, namely, sections 979-B and 979-C, which are
'public law.'
"Otherwise stated, the question is whether the 'so-called "fair
share" provision' under consideration 'directly or indirectly inter-
fere[s] with, intimidate[s], restrain[s], coerce[s] or discriminate[s]
against . . . State employees . . . in the free exercise of their
rights . . . voluntarily to join, form and participate in the activities
of organizations of their own choosing for the purposes of representa-
tion and collective bargaining.'
"When the Act is read in its entirety it is apparent that, once a
labor organization is certified under this Act as the bargaining agent
for the employees of the bargaining unit, each employee in that unit
is under the obligation, statutorily imposed, to accept the services
of that bargaining agent for representational and collective bargaining
-12-
purposes. 26 M.R.S.A. 979-F(2)(E). Correlatively, the bargain-
ing agent is under the obligation, statutorily imposed, to represent
all the employees within the bargaining unit 'without regard to mem-
bership in the organization certified as bargaining agent.' Id. It
is fairly within the compass of this mutuality of obligation established
by statute that each employee within the bargaining unit share in de-
fraying the costs of the representational and collective bargaining
services that the bargaining agent is required to provide without dis-
crimination.
"Accordingly, the implementation of this obligation by a provi-
sion inserted in an agreement arrived at through the collective bargain-
ing process cannot be taken to violate the freedoms guaranteed employees
by the Act, and in particular, by sections 979-B and 979-C thereof."
401 A.2d, at 147-148. Although aware that the Opinion of the Justices is not
a decision of precedential weight construing the relevant provisions of the
Act, City of Bangor v. Local 926, Council 74, AFSCME, Me., 430 A.2d 41, 44
(1981), the Board finds the reasoning of the Justices persuasive herein. That
is particularly true because the provisions of the State Employees Labor
Relations Act discussed by the Justices; to wit, sections 979-B, 979-C, and
979-F(2)(E); are virtually identical with the relevant portions of the
Municipal Act at issue herein, namely, sections 963, 964, and the last
paragraph of section 967(2) thereof.
The Employer, at pages 35 through 37 of its Brief before the Board, has
argued that, in failing to enact union security, agency shop, or "fair share"
language in the Act, the Legislature has rejected the same. The Employer then
contends that said alleged rejection is an expression of Legislative intent
that the Act not allow bargaining over "fair share." The Board finds it
difficult to glean any Legislative intent from the Legislature's failure to
adopt the cited amendments to the Act. Unlike a statute adopted by the
Legislature, Legislative inaction is ambiguous and subject to several and
contradictory interpretations. We, therefore, are not persuaded by this
argument.
The lead decision of the United States Supreme Court, discussing the
constitutionality of "fair share" provisions in collective bargaining agree-
ments, is Abood v. Detroit Board of Education, supra. This decision was cited
by the Justices of the Supreme Judicial Court, in the Opinion of the Justices,
supra, as underlying their advice that a "fair share" provision for State
employees was constitutionally permissible. Mr. Justice Stewart, writing the
majority opinion of the Court in Abood, stated the Court's holding therein as
follows:
-13-
"Our province is not to judge the wisdom of Michigan's decision
to authorize the agency shop in public employment. Rather, it is to
adjudicate the constitutionality of that decision. The same impor-
tant government interests recognized in the Hanson [351 U.S. 225 76
S.Ct. 714, 100 L.Ed.1112] and Street [367 U.S. 740, 81 S.Ct. 1784, 6
L.Ed.2d 1141] cases presumptively support the impingement upon associa-
tional freedom created by the agency shop here at issue. Thus, insofar
as the service charge is used to finance expenditures by the Union for
the purposes of collective bargaining, contract administration, and
grievance adjustment, those two decisions of this Court appear to re-
quire validation of the agency-shop agreement before us."
431 U.S., at 224-226, 97 S.Ct., at 1794 [footnotes omitted]. The Supreme
Court outlined the rationale for its decision as follows:
"The designation of a union as exclusive representative carries with
it great responsibilities. The tasks of negotiating and administering
a collective-bargaining agreement and representing the interests of
employees in settling disputes and processing grievances are continuing
and difficult ones. They often entail expenditure of much time and money.
See, Street, 367 U.S., at 760, 81 S.Ct., at 1795. The services of law-
yers, expert negotiators, economists, and a research staff, as well as
general administrative personnel, may be required. Moreover, in carrying
out these duties, the union is obliged 'fairly and equitably to represent
all employees . . . , union and nonunion,' within the relevant unit. Id.,
at 761, 81 S.Ct., at 1796. A union-shop arrangement has been thought to
distribute fairly the cost of these activities among those who benefit,
and it counteracts the incentive that employees might otherwise have to
become 'free riders' - to refuse to contribute to the union while obtain-
ing benefits of union representation that necessarily accrue to all
employees. Ibid.; see Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 415,
96 S.Ct. 2140, 2145, 48 L.Ed.2d 736; NLRB v. General Motors, 373 U.S. 734,
740-741, 83 S.Ct. 1453, 1458, 10 L.Ed.2d 670.
"To compel employees financially to support their collective-bargain-
ing representative has an impact upon their First Amendment interests.
An employee may very well have ideological objections to a wide variety
of activities undertaken by the union in its role as exclusive representa-
tive. His moral or religious views about the desirability of abortion
may not square with the union's policy in negotiating a medical benefits
plan. One individual might disagree with a union policy of negotiating
limits on the right to strike, believing that to be the road to serfdom
for the working class, while another might have economic or political
objections to unionism itself. An employee might object to the union's
wage policy because it violates guidelines designed to limit inflation,
or might object to the union's seeking a clause in the collective-
bargaining agreement proscribing racial discrimination. The examples
could be multiplied. To be required to help finance the union as a
collective-bargaining agent might well be thought, therefore, to inter-
fere in some way with an employee's freedom to associate for the advance-
ment of ideas, or to refrain from doing so, as he sees fit. But the
judgment clearly made in Hanson and Street is that such interference as
exists is constitutionally justified by the legislative assessment of the
important contribution of the
-14-
the union shop to the system of labor relations established by Con-
gress. 'The furtherance of the common cause leaves some leeway for
the leadership of the group. As long as they act to promote the cause
which justified bringing the group together, the individual cannot
withdraw his financial support merely because he disagrees with the
group's strategy. If that were allowed, we would be reversing the
Hanson case, sub silentio.' Machinists v. Street, 367 U.S., at 778,
81 S.Ct., at 1805 (Douglas, J., concurring)."
431 U.S., at 221-223, 97 S.Ct., at 1792-1793. (Footnotes omitted). The United
States Supreme Court then went on to hold that the above analysis and
conclusion apply equally to both private and public sector employees and to
their respective bargaining agents. 431 U.S., at 229, 97 S.Ct., at 1796.
Cognizant of the potential for erosion of the First Amendment rights of
non-union bargaining unit employees, the Abood Court specifically limited the
scope of its decision. The monies collected by a union, through implementa-
tion of a "fair share" clause, may only be expended for collective bargaining,
contract administration, and the adjustment of grievances and the "fair share"
be limited thereto. Furthermore, the Court outlined two procedures through
which non-union employees could challenge the reasonableness of the amount of
the "fair share" deduction and, if successful, gain a rebate and a prospective
adjustment, in the "fair share" percentage, from the exclusive bargaining
agent. The Court described such mechanisms as follows:
"The Court in Allen [373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d
235] described a 'practical decree' that could properly be entered,
providing for (1) the refund of a portion of the exacted funds in
the proportion that union political expenditures bear to total union
expenditures, and (2) the reduction of future exactions by the same
proportion. 373 U.S., at 122, 83 S.Ct., at 1163. Recognizing the
difficulties posed by judicial administration of such a remedy, the
Court also suggested that it would be highly desirable for unions to
adopt a 'voluntary plan by which dissenters would be afforded an in-
ternal union remedy.' Ibid. This last suggestion is particularly
relevant to the case at bar, for the Union has adopted such a plan
since the commencement of this litigation.
"Although Street and Allen were concerned with statutory rather
than constitutional violations, that difference surely could not
justify any lesser relief in this case. Judged by the standards of
those cases, the Michigan Court of Appeals' ruling that the appellants
were entitled to no relief at this juncture was unduly restrictive.
For all the reasons outlined in Street, the court was correct in deny-
ing the broad injunctive relief requested. But in holding that as a
prerequisite to any relief each appellant must indicate to the Union
the specific expenditures to which he objects, the Court of Appeals
-15-
ignored the clear holding of Allen. As in Allen, the employees have
indicated in their pleadings that they opposed ideological expendi-
tures of any sort that are unrelated to collective bargaining. To
require greater specificity would confront an individual employee
with the dilemma of relinquishing either his right to withhold his
support of ideological causes to which he objects or his freedom to
maintain his own beliefs without public disclosure. It would also
place on each employee the considerable burden of monitoring all of
the numerous and shifting expenditures made by the Union that are un-
related to its duties as exclusive bargaining representative.
"The Court of Appeals thus erred in holding that the plaintiffs
are entitled to no relief if they can prove the allegations contained
in their complaints, and in depriving them of an opportunity to estab-
lish their right to appropriate relief, such, for example, as the kinds
of remedies described in Street and Allen. In view of the newly adopted
Union internal remedy, it may be appropriate under Michigan law, even
if not strictly required by any doctrine of exhaustion of remedies, to
defer further judicial proceedings pending the voluntary utilization by
the parties of that internal remedy as a possible means of settling the
dispute."
431 U.S., at 240-242, 97 S.Ct., at 1802-1803 (Footnotes omitted). The United
States Supreme Court has, therefore, strongly suggested that public employee
unions, who enjoy the benefits of "fair share" provisions in their collective
bargaining agreements, should have bona fide internal procedures whereby
objecting non-union bargaining unit employees may challenge the reasonableness
of the level of the "fair share" deductions. We agree wholeheartedly with the
Court's suggestion. Furthermore, the Court has noted that judicial remedies
exist, for the challenge of the level of the "fair share" percentage deducted,
regardless of the existence or the adequacy of the internal union remedy.
These avenues of relief will cure whatever constitutional problems which may
arise in the implementation of any particular "fair share" proposal.
The only other judicial decision in the State of Maine, which might
arguably be relevant hereto, is that of City of Bangor v. Council 74, AFSCME,
Me., 430 A.2d 41 (1981). In that case, the Supreme Judicial Court reversed
an arbitration decision ordering the City to bargain over a union security
provision in a collective bargaining agreement. The facts then before the
Court were that the parties had bargained the following language in a
collective bargaining agreement:
"If during the term of this Agreement or any extension thereof, 26
M.R.S.A. Sec. 964(1)(B) is construed by the Maine Supreme Judicial
Court or amended by the Maine State Legislature to allow for union
security provisions in public employee collective bargaining agree-
ments, the issue of inclusion of union security provisions in this
Agreement will be open for negotiation by either party hereto."
-16-
430 A.2d, at 41-42. Subsequent to reaching the above agreement, the parties
became aware of the Opinion of the Justices, cited above. Interpreting said
Opinion as being a "construction," by analogy, of the relevant section of the
Act, the union demanded that the City bargain over a union security provision.
The City refused and, after exhausting the collective bargaining agreement's
grievance process, the arbitration board ordered the City to negotiate over
the union's proposal. The arbitration panel based its decision upon a holding
that the Opinion of the Justices was a "construction" of 26 M.R.S.A. 964(1)(B),
at least by analogy since the 0pinion discussed the essentially identical pro-
vision of the State Employees Labor Relations Act, and that the Law Court had
declared that "fair share" was permitted thereunder. The arbitrators con-
cluded that, since the "triggering" event for bargaining over union security
had occurred, the City had to bargain thereon. 430 A.2d, at 44. The Supreme
Judicial Court reversed the arbitrators' decision holding as follows:
"The bargained-for trigger for mandatory negotiations on a
union security clause was plainly a judicial declaration by the whole
Supreme Judicial Court in a litigated case so that the construction
of section 964 so declared would be precedentially binding upon all
persons, including the present contracting parties. In other words,
by the clear terms of article 3, section 2, negotiations over a union
security clause would become required only in the event of a judicial
construction of section 964(1)(B) by the Maine Supreme Judicial Court
that had a general binding quality comparable to a legislative amend-
ment of that section. The 1979 Opinion of the Justices, [Me., 401 A.2d
135], does not satisfy that condition precedent. It was not the action
of the Maine Supreme Judicial Court. It instead represented the opinion
of the several justices acting individually in discharge of their indi-
vidual constitutional responsibility 'to give their opinion upon impor-
tant questions of law, and upon solemn occasions, when required by the
Governor, Senate or House of Representatives.' See Me. Const. Art. VI,
3. And that advisory opinion was not a judicial construction of pro-
visions relevant to union security. See State v. Cleveland, 58 Me. 564,
573 (1870). In subsequent litigation, that advisory opinion will not
bind either the same or different justices acting collegially as the
Law Court not the litigants who bring an actual controversy before the
Law Court on appeal. Opinion of the Justices, Me., 396 A.2d 219, 223
(1979); Martin v. Maine Savings Bank, 154 Me. 259, 268-69, 147 A.2d 131,
136-37 (1958)."
430 A.2d, at 44. The Law Court's decision in the above case was, therefore,
limited to the facts then before the Court.
The Employer, at page 34 of its Brief, has argued that in City of Bangor
v. Council 74, AFSCME, supra, the Supreme Judicial Court "in effect" reversed
our
-17-
decision in Council 74, AFSCME v. City of Bangor, MLRB No. 80-50 (Sept. 22,
1980). In the latter case, the Board addressed two separate issues arising
from the same factual context as was before the Law Court in City of Bangor v.
Council 74, AFSCME, supra. The Board held that: (1) the condition precedent
for bargaining over a union security proposal, contained in the collective
bargaining agreement between the parties, had in fact occurred and, therefore,
the City had a contractural duty to bargain over said proposal, MLRB No. 80-50,
at 4, and (2) that "fair share" proposals are mandatory subjects of bargaining,
under 26 M.R.S.A. 965 (1)(C), and, therefore, the City had a statutory duty
to bargain over "fair share," separate and distinct from its contractural
obligation to do so. In Council 74, AFSCME v. City of Bangor, supra, we held:
"Having determined that a fair share type of union security
provision is permitted under Section 964, we need only determine
whether it is a mandatory subject of bargaining. Under the State
Act the answer is clear: it is a mandatory subject. The Opinion
of the Justices determined the issue by holding that the scope of
Section 979-D(1)(E)(1) authorizes the fair share provision as a
subject appropriate for collective bargaining which is not prohibited
by public law. 401 A.2d at 147.
"The conclusion is the same under Section 965(1)(C) of the Muni-
cipal Act. It is inherent by definition in a fair share union
security provision, as with other types of union security provisions,
that something must be done by the employee as a condition of employ-
ment. Thus, it is clearly a "working condition" and therefore a man-
datory subject of bargaining. 26 M.R.S.A. 965(1)(C). As the union
points out, the federal courts have also unequivocally decided that
union security fits within the parallel language in the National Labor
Relations Act, Section 8(d), 29 U.S.C. 158(d) ("wages, hours and
other terms and conditions of employment"). E.g., Caroline Farms Divi-
sion of Textron, Inc. v. N.L.R.B., 401 F.2d 205, 210 (7th Cir. 1968);
cf., Easton Teachers Association v. Easton School Committee, MLRB No.
79-14 (Mar. 3, 1979). As the Opinion of the Justices indicated, it is
fair that each employee within the bargaining unit share the burden
of defraying the bargaining agent's costs of representation and col-
lective bargaining. 401 A.2d at 147. This motion of fairness would be
meaningless if a fair share type of union security provision were only
a permissive subject of bargaining and not a mandatory subject."
MLRB No. 80-50, at 5. The Board's above decision was appealed to the Penobscot
Superior Court and the Court reversed the Board's first holding, concerning
the City's contractural obligation to bargain over a "fair share" provision.
City of Bangor v. Council 74, AFSCME, Penobscot Super. Ct. Docket No.
CV-80-563, 2-3 (June 11, 1981). The Court held, consistent with the Law
Court's decision in City of Bangor v. Council 74, AFSCME, supra, that the
"triggering" event, giving
-18-
rise to the contractural duty to bargain over "fair share," had not occurred
and, therefore, the City had no obligation to bargain over the same.
Penobscot Super. Ct., supra, at 4. The Superior Court did not reach nor rule
upon the second issue decided by the Board, the statutory duty to bargain over
"fair share" proposals.
The above-cited precedent indicates that, in Churchill, the Supreme
Judicial Court, while declaring a 100% union security clause to be contrary to
the Act, expressly reserved judgment on whether a "fair share" proposal is
permitted by the Act. In Abood, the Supreme Court of the United States held
that an agency shop provision, whose sole purpose was to provide non-union
bargaining unit employee financing for the exclusive bargaining agent's
collective bargaining and contract administration functions, passed
constitutional muster, under the balancing test analysis applied to First
Amendment questions. Applying Abood, the Justices of the Supreme Judicial
Court have opined that an 80% "fair share" clause does not violate the
Constitution of the United States and the Constitution of Maine and that said
"fair share" provision does not violate any provisions of the State Employees
Labor Relations Act. Opinion of the Justices, supra. The language of the
State Act considered by the Justices, in said Opinion, is virtually identical
with the sections of the Municipal Act relevant hereto. The decisions of the
Supreme Judicial Court, in City of Bangor v. Council 74, AFSCME, supra, and of
the Superior Court, in Penobscot Sup. Ct. Docket No. CV-80-563, did not
address the status of "fair share" proposals as mandatory, permissive, or
illegal subjects of bargaining.
The "fair share" proposal, at issue herein, provides that non-member
employees, in the bargaining unit represented by the Union as the certified
bargaining agent, "must pay the local an amount equal to 80% of the amount
assessed upon members of the Union to cover costs of representation incurred
by the labor organization . . . or they will be discharged." The "fair share"
proposal held to be a mandatory subject of bargaining, in our prior case of
Council 74, AFSCME v. City of Bangor, MLRB No. 80-50, also conditioned non-
members continued employment upon their making the "fair share" payment to
their bargaining agent. Since that decision has not been modified or reversed,
in relevant part, by the Courts of the State of Maine, we feel bound, by the
principle of stare decisis, to apply the holding thereof to the instant case.
We hold, therefore, that the Union's "fair share" proposal is a mandatory
subject of bargaining, under Title 26 M.R.S.A. 965(1)(C).
The Employer has consistently refused to bargain over the Union's "fair
share" proposal in this case. The City did, at one point, offer to include,
in the successor collective bargaining agreement, the same language as had
been included in the
-19-
Bangor Police Department collective bargaining agreement, however, the Union
rejected this offer. This was the only instance, during the course of the
negotiations between the parties, when the Employer modified its initial
stance of refusing to bargain with the Union over "fair share." The Union was,
therefore, forced to present its "fair share" proposal to the Fact Finding
panel. Following the analysis found at pages 9 and 10 hereof, we further hold
that the Employer, by refusing to bargain over the Union's "fair share"
proposal to the point of impasse, has violated Section 965(1)(C) of the Act.
For the reasons stated at page 10 above, we will order the Employer to cease
and desist from refusing to bargain over the Union's "fair share" proposal.
Furthermore, we will dismiss Count II of the Employer's Complaint.
Union Financial Information
Having held that the Union's "fair share" proposal is a mandatory subject
of bargaining, we must now consider the third issue presented in this case.
The question presented is whether, as a prerequisite to or during the course
of bargaining over the Union's "fair share" proposal, is the Employer entitled
to access to "all receipts and disbursements and all financial records for
Local 1599, the Bangor Fire Fighters Association, for the period from 1972 to"
August, 1982. We hold that the Employer is not entitled to such information
during bargaining.
In the past, we have held that "[t]he duty to bargain collectively . . .
includes a duty to provide relevant information needed" in the collective bar-
gaining process. M.S.A.D. No. 45 v. M.S.A.D. No. 45 Teachers Association,
MLRB No. 82-10, 10 (Sept. 17, 1982). In this case, the requested information
is not needed by the Employer to bargain over the Union's "fair share"
proposal. Once the parties agree to "fair share" as a condition of employment,
the level of the wage deduction, as a percentage of the total assessment paid
by Union members, may then be bargained by the parties. The percentage level
of the wage deduction has no impact whatsoever on the Employer. The persons
with standing to object to the reasonableness of the "fair share" percentage
levied are the non-union employees of the bargaining unit. As the Opinion of
the Justices, supra, at 148, noted, "the fact the amount of the service fee is
fixed by the collective bargaining agreement does not make that amount
conclusive upon a nonmember who puts the amount in issue in an appropriate
judicial proceeding." Such
-20-
judicial proceedings or a bona fide internal union procedure to allow non-
members to challenge the level of the "fair share" deduction, have been des-
cribed in some detail by the United States Supreme Court. In Brotherhood of
Railway & S.S. Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235
(1963), the issues relevant to such proceedings and the allocation of the
burden of proof therein was discussed. Mr. Justice Brennan, writing for a
majority of the Court, stated:
"On remand, in order to frame a decree embodying the suggested
remedies, two determinations will have to be made: (1) what
expenditures disclosed by the record are political; (2) what
percentage of total union expenditures are political expenditures.
As to (1) we presently intimate no view . . . , because here, as
in Street, see 367 U.S., at 768-770, 81 S.Ct., at 1799-1801, 6
L.Ed.2d 1141, the courts below made no attempt to draw the bound-
ary between political expenditures and those germane to collective
bargaining, and it would be inappropriate for this Court to do so
in the first instance and upon the present record. As to (2) the
present record is insufficient to enable any calculation.
"Since the unions possess the facts and records from which
the proportion of political to total union expenditures can be
reasonably calculated, basic considerations of fairness compel
that they, not the individual employees, bear the burden of proving
such proportion. Absolute precision in the calculation of such
proportion is not, of course, to be expected or required; we are
mindful of the difficult accounting problems that may arise. And
no decree would be proper which appeared likely to infringe the
unions' right to expend uniform exactions under the union-shop
agreement in support of activities germane to collective bargain-
ing and, as well, to expend nondissenters' such exactions in support
of political activities.
"Fourth. While adhering to the principles governing remedy
which we announced in Street, see 367 U.S., at 771-775, 81 S.Ct.,
at 1801-1803, 6 L.Ed.2d 1141, we think it appropriate to suggest,
in addition, a practical decree to which each respondent proving his
right to relief would be entitled. Such a decree would order (1)
the refund to him of a portion of the exacted funds in the same
proportion that union political expenditures bear to total union
expenditures, and (2) a reduction of future such exactions from him by
the same proportion."
373 U.S., at 121-122, 83 S,.Ct., at 1163-1164. The Court went on to suggest
that unions should adopt internal procedures to afford dissenters relief and
avoiding "prolonged and expensive litigation." 373 U.S., at 122-123, 83 S.Ct.,
at 1164. In short, the nonmember employees, not the Employer, have standing
to challenge the level of the "fair share" deduction and judicial relief
exists for said employees. The Employer would not become involved directly
with the "fair share"
-21-
procedure unless it was forced to discharge employees for non-compliance
therewith. Said discharges would not occur until after the reasonableness
of the "fair share" deduction level has been resolved, therefore, the Employer
does not need the information requested, during the course of bargaining.
The Employer has consistently conditioned its bargaining, over the Union's
"fair share" proposal, upon its receipt of financial information from the
Union. The Union ultimately was forced to submit its "fair share" proposal to
the Fact Finding panel. Applying the analysis found at pages 9-10 and 19-20
hereof, we hold that the Employer has insisted on conditioning its bargaining,
over the "fair share" proposal, upon its receipt of the said financial
information to the point of impasse. Since receipt of the requested informa-
tion is not a mandatory subject of bargaining, the Employer's placing receipt
of the same as a condition precedent to bargaining over a mandatory subject,
to the point of impasse, is a violation of Section 965(1)(C) of the Act and we
so hold. We will grant appropriate relief to correct this violation by
ordering the Employer to cease and desist from its insistence upon receipt of
the requested Union financial information, as a condition precedent to
bargaining over the Union's "fair share" proposal. We will also dismiss
Count III of the Employer's complaint.
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 Bangor Fire Fighters Association, Local 1599,
International Association of Fire Fighters (AFL-CIO),
and its agents, members, and bargaining agents, cease and
desist from insisting that the City of Bangor bargain about
the Union's "minimum safety" proposal.
2. That Count I of the Counterclaim of the Bangor Fire Fighters
Association, Local 1599, I.A.F.F. (AFL-CIO), filed in this
proceeding, be and hereby is dismissed.
3. That the City of Bangor and its agents, employees, and bargain-
ing representatives, cease and desist from refusing to bargain
about the "fair share" proposal made by the Bangor Fire Fighters
Association, Local 1599, I.A.F.F. (AFL-CIO).
-22-
4. That Count II of the prohibited practices complaint of the
City of Bangor, filed in this proceeding, be and hereby is
dismissed. I
5. That the City of Bangor, and its agents, employees, and
bargaining representatives, cease and desist from insisting,
as a condition precedent to bargaining over the "fair share"
proposal made by the Bangor Fire Fighters Association,
Local 1599, I.A.F.F. (AFL-CIO), that it receive certain finan-
cial information from the Union.
6. That Count III of the prohibited practices complaint of the
City of Bangor, filed in this proceeding, be and hereby is
dismissed.
Dated at Augusta, Maine this 2nd day of August, 1983.
MAINE LABOR RELATIONS BOARD
/s/______________________________
Donald W. Webber
Alternate Chairman
/s/_______________________________
Don R. Ziegenbein
Employer Representative
/s/_______________________________
Russell A. Webb
Alternate Employee Representative
The parties are advised of their right, pursuant to Title 26 M.R.S.A.
Section 968(5)(F), to seek review of this decision by the Superior Court by
filing a complaint in accordance with Rule 80B of the Rules of Civil Proced-
ure within 15 days after receipt of this decision.
-23-