Bangor Fire Fighters' Association, Local 772, IAFF v. City of Bangor, 
MLRB No. 93-20 (Aug. 9, 1993), rev'd sub nom, City of Bangor v. Maine 
Labor Relations Board, No. CV-93-316 (Me. Super. Ct., Pen. Cty., Apr. 21, 
1994), Board decision and order on remand, MLRB No. 93-20 (July 27, 1994),
original Board decision aff'd sub nom, City of Bangor v. Maine Labor Relations
Board, 658 A.2d 669 (Me. 1995)

STATE OF MAINE                                SUPERIOR COURT
PENOBSCOT, ss.                                CIVIL ACTION 
					      Docket No. CV-93-316

City of Bangor,          )
	 Plaintiff,      )
v.                       )                 Decision and Order
Maine Labor Relations    )
Board,                   )
	 Defendant.      )

     Pursuant to M.R.Civ.P. 80C, the Plaintiff, City of Bangor,
seeks review of the final agency action of the Defendant, Maine
Labor Relations Board ("Board").  This dispute is based upon the
Board's August 9, 1993 decision in a prohibited practice complaint
proceeding captioned Bangor Fire Fighters Association, Local 772,
IAFF, AFL-CIO-CLC v. City of Bangor, MLRB Case No. 93-20.  In the
prohibited practice complaint, the Union alleged that the City had
failed to bargain collectively in violation of 26 M.R.S.A. 
964(1)(E), 965(1)(C) (1988).  As a result of the City's failure to
bargain, the Union argued that the City had received an
unanticipated windfall in health insurance premium costs which
should be passed on to the Union.  Further, the Union argued that
as a result of the City's unilateral action, Union members
voluntarily enrolled in an optional Health Maintenance
Organization plan ("HMO") would be required to pay an increased


proportion of their health care premium costs.

     The Board dismissed the portion of the complaint that would
have required the City to share any insurance premium cost
savings.  However, the Board concluded that the action taken by
the City impacted mandatorily negotiable subjects.  Because of
this impact, the Board ordered the City to reimburse Firefighters
represented by the Association, with interest, for any additional
expenditures for HMO coverage during the term of the contract
which employees may have made as a result of the uncontemplated
reduction of the traditional health insurance costs and the City's
contribution thereto."  (Board decision at 18).

     On review of a decision of the Board, this Court reviews the
Board's findings for clear error.  City of Bangor v. A.F.S.C.M.E.,
Council 74, 449 A.2d 1129, 1134 (Me. 1982).  In addition, when the
Board is asked to construe a statute administered by it, that
construction is entitled to deference and "will be upheld unless
the statute plainly compels a contrary result."  Porter v. Maine
State Retirement System, 609 A.2d 1146, 1149 (Me. 1992).  Here, a
combination of inconsistent findings and an erroneous application
of the statute require reversal of the Board's decision.

     The Board framed the issue as follows:

     we must determine what the parties contemplated that the
     health insurance article would accomplish, whether the
     city has caused an uncontemplated change in a
     mandatorily negotiable aspect of health insurance, and,
     finally, whether any unilateral changes which have
     occurred in mandatorily negotiable aspects of health
     insurance are legally excusable.
(Board decision at 11-12).  On the issue of mandatorily negotiable


subjects, the Board made the following finding:

     It is sufficient for the purposes of this controversy to
     state that we conclude that the decisions of the City at
     issue here respecting the deletion and restoration of
     already-retired employees to the health insurance group
     are not mandatorily negotiable with the Association.

(Board decision at 11).

However, the Board went on to conclude that the decision
concerning the retired employees "impacted mandatorily negotiable
subjects."  Because of this impact, the City's action
"constitute[d] an unlawful unilateral change in violation of 26
M.R.S.A.  964(1)(E) (1988)."

     It appears to this Court that the Board's analysis is
seriously flawed.  The only City action involved in this case is
the decision to first remove and then reinstate retired employees
in the health insurance group.  As noted by the Board, this was
not a mandatorily negotiable subject.  Since it is not, it cannot
constitute an unlawful unilateral change under sections 964 and
965.  Thus, if the City may change the membership of the group
without negotiating with the Union, then it follows that the
impact of this decision cannot be a subject requiring mandatory
negotiation.  Simply stated, the one City action complained of
either is, or is not, a mandatorily negotiable subject.  Since the
Board characterized the action both ways, those findings are
clearly erroneous.

     WHEREFORE, the entry is:

     The decision of the Board is VACATED and this case is
remanded to the Board for reconsideration in light of this



Dated:  4/21/94                    /s/_______________________________
				   Robert L. Browne, Justice
				   Superior Court