Affirmed by City of Augusta v. Maine Labor Relations Board, et al., Superior
Court No. AP-01-63 (May 3, 2002),

                                      Case No. 01-09 
                                      Issued:  August 20, 2001  

               Complainant,     )  
          v.                    )       DECISION AND ORDER     
CITY OF AUGUSTA,                )
               Respondent.      )

     The Augusta Uniformed Firefighters Association Local 1650,
IAFF, AFL-CIO-CLC, ("Union") filed a prohibited practice
complaint against the City of Augusta ("City") on October 12,
2000.  In the complaint, the Union complained that the City, on
two occasions, failed to meet with the Union within the requisite
ten-day period for impact negotiations concerning the effects of
coverage changes by the health insurance carrier on the terms and
conditions of employment of employees in the firefighter and
platoon chiefs bargaining units, in violation of 26 M.R.S.A. 
 965 and  964(1)(E).[fn]1

     The City admitted that the Union provided it with the
request to meet within ten days, but denied that it had any
obligation to meet with the Union because the collective
bargaining agreement covered the issue and because the City had
not taken any actions which required impact bargaining.

     A prehearing conference was conducted by Chair Peter T.
Dawson on October 24, 2000.  The Union was represented by 

     1 The Union filed a second complaint, No. 01-03, in which the
Union alleged that the City had knowledge of health insurance coverage
changes prior to the ratification of the side agreement on health
insurance coverage, and did not reveal this knowledge to the Union. 
This complaint was consolidated with the present complaint by 
agreement of the parties.  Complaint No. 01-03 was withdrawn by the 
Union on May 14, 2001.


Robert F. Bourgault.  The City was represented by Stephen E. F.
Langsdorf, Esq.  The Prehearing Conference Memorandum and Order
issued on November 16, 2000, is incorporated herein and made part
of this Decision and Order.

     The parties agreed that this matter could be presented to
the Board on stipulated facts, exhibits and briefs.  The Union
filed its brief on May 30, 2001.  The City filed its brief on
June 29, 2001.  The Board, consisting of Alternate Chair Jared S.
des Rosiers, Employer Representative Karl Dornish, Jr., and
Alternate Employee Representative Wayne W. Whitney, met to
deliberate the matter on July 13, 2001.

     For the reasons stated herein, the Board concludes that the
City violated 26 M.R.S.A.  965(1)(B) when it failed on two
occasions to meet within the requisite ten-day period for
collective bargaining purposes, and hence refused to bargain
collectively with the bargaining agent of its employees within
the meaning of 26 M.R.S.A.  964(1)(E).  We will fashion a remedy
to redress this violation.


     The jurisdiction of the Board to hear this case and to issue
a decision and order lies in 26 M.R.S.A.  968(5)(C).  Neither
party has raised an objection to the Board's jurisdiction.

                        STIPULATED FACTS
     The parties have agreed:

     1.  That the Union sent a letter dated August 13, 2000
requesting negotiations in accordance with 26 MRSA, Chapter 9-A 
 965(B) over the effect of the City's change in health insurance
carrier on the terms and conditions of employment of employees in
the firefighter and platoon chiefs bargaining units and that the
City received said letter.

     2.  That this was a second request for impact negotiations
sent by the Union and received by the City concerning this issue.

     3.  That the City answered in a letter dated September 13,

     4.  That the City has not met with the Union in response to
these requests to negotiate impact.

                        FINDINGS OF FACT

     The Board makes the following additional findings of fact,
based upon the record as submitted by the parties:

     1.  In October, 1999, the City and the Union entered into a
side agreement which changed the health insurance carrier from
Blue Cross/Blue Shield ("BC/BS") to the Maine Municipal Employee
Health Trust ("MMEHT") for the firefighters. 

     2.  The health insurance carrier for the platoon chiefs was
also changed from BC/BS to MMEHT, pursuant to a provision in
their collective bargaining agreement.

     3.  Both the firefighters and the platoon chiefs thereafter
ratified three-year contracts effective January 1, 2000.  Each
contract contained similar language regarding health insurance as
          Section 1 - Health Insurance:

          Effective January 1, 2000, the City agrees to
     provide MMEHT Point of Service as the health insurance
     carrier.  The City shall provide the health insurance
     benefit at the following monthly premiums for

                    For the Employee              $272.19
                    For Adult with Children       $443.24
                    For a Family                  $614.99

     The above rates shall be in effect through December 31,
     2000.  Employees who wish to elect a higher level of
     coverage from the carrier may do so by paying the
     entire additional cost in the insurance premium.


     Rate increases effective January 1, 2001 and January 1,
     2002 will be split, with the City paying ninety-five
     percent (95%) of the increase and the employee paying
     five percent (5%).  Those increases will be added to
     the figures shown above.
     If contract negotiations extend beyond December 31,
     2002, both parties agree that the City will pay sixty
     percent (60%) of any increase in health insurance
     premiums, with the employee deduction to pay the other
     forty percent (40%) not to exceed five dollars ($5) per
     week until a new agreement has been reached.
     Employees who are insured by a comparable group
     insurance plan in addition to that provided by the City
     may elect to drop the coverage provided by the City. 
     Employees who demonstrate proof of comparable coverage
     will receive one hundred dollars ($100) per month. 
     Proof of coverage must be presented to the Human
     Resources Department.

     The City agrees to create and fund during the term of
     the agreement, a co-pay reserve fund.  Employees may
     submit proof of payment of a medical claim co-payment,
     and the fund will make quarterly reimbursement to the
     employee for that cost.  This fund will cease to exist
     December 31, 2002, unless agreed to in negotiations for
     the successor agreement to this contract.

     4.  Several weeks after the parties entered into the side
agreement changing health insurance carriers, the MMEHT announced
changes to some health plan benefits effective January 1, 2000. 
For instance, in the "Point of Service Plan" (managed care), the
MMEHT imposed a lifetime cap on benefits and excluded the
deductible when calculating certain maximum out-of-pocket
expenses per calendar year.  In the Indemnity Plan, the MMEHT
imposed more extensive changes, including an increase in the
maximum out-of-pocket expenses per calendar year and a limitation
on coverage for certain types of medical services.

     5.  An employee from each bargaining unit filed a grievance
related to the changes in health insurance coverage.  The
grievances were eventually taken to arbitration.

     6.  On March 28, 2000, the Union representative presented a 


written request to the City Manager for negotiations over the
effect of the City's change in health insurance carrier on the
terms and conditions of employment of the firefighters, and
proposed several dates for a meeting.

     7.  The City did not respond to this letter.

     8.  On August 13, 2000, the Union representative presented a
similar written request to the City Manager, this time citing
26 M.R.S.A.   965(B) (sic) and stating that a failure to reply
would be " . . . treated as a  964(1)(E) violation absent a
mutually acceptable alternative."

     9.  On September 11, 2000, the arbitrator issued a decision
finding that the City had not violated the contract by failing to
guarantee or provide the exact health insurance coverage that the
MMEHT had proposed to provide prior to the ratification of the
side agreement.

    10.  On September 13, 2000, the City's attorney responded in
a letter to the Union stating that the City declined to meet
because the City had not made any decisions which required impact

     Pursuant to  964(1)(E), public employers, their
representatives and their agents are prohibited from refusing to
bargain collectively with the bargaining agent of its employees
as required by section 965.  Section 965 provides as follows:

     1.  Negotiations.  It shall be the obligation of the
     public employer and the bargaining agent to bargain
     collectively.  "Collective bargaining" means, for the
     purposes of this chapter, their mutual obligation:

     . . .
          B.  To meet within 10 days after receipt of
          written notice from the other party 
          requesting a meeting for collective


          bargaining purposes, provided the parties
          have not otherwise agreed in a prior written
          contract; . . .

The Board has long interpreted the ten-day notice to mean exactly
what it states:  a party is obligated to meet within ten days
after receipt of a written notice from the other party requesting
bargaining.  A failure to meet within ten days is a per se
violation of Section 964(1)(E) and is evidence of bad faith. 
See, e.g., Kittery Employees Ass'n v. Eric Strahl, No. 86-23,
slip op. at 7 (Me.L.R.B. Jan. 27, 1987); MSAD No. 43 Teachers
Ass'n v. MSAD No. 43 Board of Directors, No. 79-42, slip op. at
2-3 (Me.L.R.B. May 1, 1979).

     In the present matter, the Union made clear that it was
proffering a "ten-day notice" to the City, particularly in its
second letter of August 13, 2000, which refers specifically to
the relevant provisions of the law.  The City did not respond in
any way within the ten-day period, but allowed nearly a month to
elapse before advising the Union that it felt no legal obligation
to meet with the Union because the City had not made any decision
which required impact bargaining.  Neither party has pointed to
any provision in the contracts for either bargaining unit which
would constitute a general waiver of the obligation to bargain
mid-term, such as a zipper clause, management rights clause or
other general waiver.[fn]2  The burden therefore rests upon the City 
to show what other cause allowed it to ignore a ten-day notice.

     The City has essentially offered two arguments why it was
not required to respond to the Union's request to meet.  First,
the City argues that health insurance coverage changes were

     2 A party may waive its right to demand negotiations during the
term of a collective bargaining agreement over unilateral changes 
which affect the mandatory subjects of bargaining by agreeing to a 
"zipper clause" which covers such unilateral changes.  For such a 
waiver to be effective as a bar to negotiations, the evidence of 
waiver must be clear and unmistakable.  Council No. 74 AFSCME v. City 
of Bangor, No.80-41, slip op. at 9-10 (Me.L.R.B. Sept. 24, 1980), 
aff'd, 449 A.2d 1129 (Me. 1982).


already negotiated between the parties and covered in the
resulting contracts; therefore, mid-term impact bargaining was
not required.  Second, the City argues that since MMEHT, not the
City, acted to change the health insurance coverage, the City was
under no obligation to meet regarding changes over which it had
no control.  These arguments will be addressed in turn, below.

     Even absent a waiver, parties are not always required to
engage in mid-term negotiations.  In East Millinocket Teachers
Ass'n v. East Millinocket School Committee, No. 79-24 (Me.L.R.B.
April 9, 1979), the Board considered whether the duty to meet for
collective bargaining purposes continues during the term of a
collective bargaining agreement.  The Board found that such a
duty exists:

     If, as in the instant case, there is a collective
     bargaining agreement in effect which does not contain a
     so-called "zipper clause," the obligation to bargain
     continues with respect to new issues which arise during
     the course of the administration of the collective
     bargaining agreement when those new issues are neither
     contained in the terms of the contract nor negotiated
     away during bargaining for that contract or a successor

East Millinocket, slip op. at 3-4, citing Cape Elizabeth Teachers
Ass'n v. Cape Elizabeth School Board, No. 75-24, slip op. at 4
(Me.L.R.B. Oct. 16, 1975)(emphasis supplied). 
     The City urges in its brief that specific coverage changes
were "contained in" or "covered by" the present contracts, 
thereby relieving the City of the requirement to bargain over any 
mid-term coverage changes.  In the relevant collective bargaining
agreements, the parties agreed only to the identity of the
insurance company, the amount of the premium to be paid by the
City, the division of future premium increases, the compensation
for employees with comparable coverage, and the creation of a co-
pay reserve fund.  The agreements did not define coverage at all. 
The issues that were the subject of the grievances filed by the
Union (changes in out-of-pocket limits, lifetime caps in 


coverage, etc.) were simply not in the agreements.

     It is true that matters need not be specifically mentioned in
a collective bargaining agreement in order to be "covered by" 
the agreement; subjects "inseparably bound up with and thus 
plainly an aspect of" provisions in the contract may be 
considered covered by the contract.  C & S Industries, Inc., 158 
N.L.R.B. 454, 459 (1966).  This argument applies with equal force 
to the arguments presented by both the City and the Union, 
however.  The City argues that the coverage details are 
"inseparably bound" to the aspects of the health insurance 
coverage already negotiated, and they need not negotiate over 
issues covered by the contract.  The Union could likewise argue 
that if specific coverage details are "inseparably bound" to the 
aspects of health insurance coverage already negotiated, then 
the City guaranteed the specific plan of coverage offered by 
MMEHT and presented to the Union prior to the ratifying of the 
side agreement.  The City would obviously be obligated to at 
least meet with the Union regarding changes in the plan if this 
were this case.[fn]3

     The City also argues that even if the coverage details were
not contained in the specific terms of the contract, the details
were, in effect, contained in the contract due to the "inherent
volatility and changing nature of health insurance."  City's 
brief at 3.  The arbitrator rested her decision that there was no
contract violation at least in part on this fact, suggesting that
unions and employers rarely bargain over such level of coverage
detail.  Accepting the arbitrator's rationale does not resolve
the issue presented here because the Union requested a ten-day
meeting to negotiate the effect or impact of the coverage changes 

     3 The arbitrator ruled that the collective bargaining agreement
did not require the City to determine and guarantee an exact level of
benefits.  R-1 at 10.  However, the arbitrator's decision was issued
after both of the Union's requests to meet with the City.  The City
responded to the second Union request only after the arbitrator had
issued her decision.

on the terms and conditions of employment, not to negotiate the
changes themselves.  The arbitrator specifically concluded that
the contract did not authorize her to order the City to bargain
the impact of changes; she reserved this issue for the Board to
determine under the MPELRL.  R-1 at 12.

     Because the City refused to meet with the Union regarding
impact, it is not in the position to argue that the impact of the
coverage changes are "covered by" the terms of the contract.  The
City relied upon Department of Navy v. Federal Labor Relations
Authority, 962 F.2d 48 (D.C. Cir. 1992), for the proposition that
parties can negotiate terms in a contract which encompass impact. 
Under the Federal Service Labor-Management Relations Statute
(FSLMRS), certain "management rights" are excluded from the
statutory duty to bargain, though the employer is required to
negotiate about the "impact and implementation" of those rights. 
In Department of Navy, the employer and union bargained about
impact and implementation of detailing employees.  The Court 
found that when the employer fully complied with the contract in
detailing certain employees, the employer had no further duty to
negotiate over their actions.  In the present matter, the union
had no opportunity to articulate the impact resulting from the
coverage changes because the City refused to meet with the Union. 
In this posture, the City simply has no basis to argue that the
impact to be raised by the Union is covered by the contracts.[fn]4

     The City's assumption that the Union can articulate no
impact of the coverage changes on the terms and conditions of
employment which requires impact bargaining may ultimately prove
correct.  The Board has been called on, for instance, to evaluate 

     4 Federal precedent, under either the FSLMRS or the National Labor
Relations Act, is not always useful in evaluating violations of 26
M.R.S.A.  965(1)(C) because neither of these federal acts contain a
ten-day notice provision like the MPELRL.  The Board has recognized 
that this distinction requires the Board to diverge at times from 
federal precedent when evaluating this provision of our law.  MSEA v. 
State of Maine, No. 80-09, slip op. at 8 (Me.L.R.B. Dec. 5, 1979).


whether parties must bargain over a decision that has no impact,
or a de minimis level of impact, upon the terms and conditions of
employment.  Cf. Saco-Valley Teachers Ass'n v. MSAD No. 6 Board of
Directors, No. 79-56 (Me.L.R.B. Aug. 9, 1979)(impact of new
evaluation program on hours and terms and conditions of 
employment sufficiently substantial to require negotiations); 
Teamsters Local Union No. 48 v. University of Maine, No. 79-37 
(Me.L.R.B. Oct. 17, 1979)(employer's decision to limit off-campus 
assistance by university police had no tangible effect on working 
conditions, therefore employer had no obligation to bargain over 
effect).  However, by not meeting with the Union, the City failed 
to avail itself of the opportunity to learn the specifics of the 
Union's arguments and proposals regarding impact.  This was in 
clear contravention of the Board's warnings that an employer 
should err on the side of caution when presented with a ten-day 

     It should be clear that a bargaining agent may not use
     the duty to negotiate the subject of impact on working
     conditions as a guise for making demands concerning the
     propriety of the decision itself. However, the
     bargaining agent may have many valid concerns about the
     effect of such decisions on the conditions or duties of
     the employees, as in the instant case.  The employer
     should be interested in them.  Since the Act is
     intended to foster harmonious relations between public 
     employers and their employees, we think it would be 
     safer and wiser for a party to meet when requested even 
     if it has doubts about the duty to meet.  Since a 
     misunderstanding of the law or of the facts of a clear 
     request such as this one will not excuse the duty to 
     meet, a party should therefore not lightly undertake 
     the decision to refuse to meet when requested by a 10 
     day letter.

East Millinocket Teachers Ass'n, supra at 5.

     The City's second argument is that it was relieved of the
obligation to meet because it was the MMEHT, not the City, which
made the decision to change aspects of the health insurance
coverage.  The City is correct that many cases addressing the
refusal to bargain, and specifically addressing the failure to


respond to a ten-day request to meet for purposes of collective
bargaining, involve a unilateral action on the part of the
employer.  See e.g., MSAD No. 43 Teachers Ass'n v. MSAD No. 43
Board of Directors, No. 79-42 (Me.L.R.B. May 1, 1979)(failure to
meet and consult within ten days of request regarding open house
policy implemented by employer); East Millinocket Teachers Ass'n,
supra (failure to meet within ten days of request regarding 
impact of absorbing duties of extracurricular job into another 
and posting of job openings implemented by the employer).  
However, the Union is also correct that forces outside the scope 
of the immediate bargaining relationship (such as a change in 
laws or regulations) may impact the terms and conditions of 
employment and trigger the requirement to negotiate over the 
impact upon request of either party.  For instance in MSEA v. 
State of Maine, No. 85-19 (Me.L.R.B. Dec. 2, 1985), the employer 
and the union engaged in numerous meetings to discuss the impact 
upon wages and hours of certain employees of a U.S. Supreme Court 
decision which overruled a previous decision and subjected state 
and local governments to the provisions of the Fair Labor 
Standards Act (the employer eventually acted unilaterally to 
limit its overtime liability when no resolution was reached at 
these meetings).

     Moreover, the Board has long held that the impact of a
decision or an event must be negotiated even when the decision
itself need not be negotiated, because it is a matter of
educational policy (Westbrook Teachers Ass'n v. School Committee
of Westbrook, No. 74-17 (Me.L.R.B. Aug. 21, 1974) or because the
parties have waived the subject of the decision through prior
negotiations (Teamsters Local No. 48 v. City of Augusta, No. 78-
04 (Me.L.R.B. June 7, 1978).  The Supreme Judicial Court
recognized in City of Bangor v. AFSCME, Council 74, 449 A.2d 1129
(1982) the distinction between "impact bargaining" and bargaining
over the change which resulted in the impact.  In that case, the
Court found that while the union had waived the right to 
negotiate over discharges and over changes in the size of the


group of employees, this waiver did not encompass the effects or
impact of discharges which the parties were required to 
negotiate.  City of Bangor at 1134-1135.  Each of these cases 
support the proposition that, even where the parties are 
foreclosed from negotiating about the decision or event itself, 
they are still required to negotiate about the impact of such 
decision or event upon the mandatory subjects of bargaining.  The 
parties may be foreclosed from negotiating because a third party 
makes the decision or brings about the event; the impact may 
still be negotiable.  In the present matter, negotiations over 
MMEHT coverage changes may be precluded, but the parties may 
still be required to negotiate about the impact resulting from 
such changes.[fn]5

     On the basis of the stipulated facts, findings of fact and
discussion, and pursuant to  968 of the Municipal Public
Employees Labor Relations Act ("Act"), it is hereby ORDERED:

     Respondent City of Augusta and its representatives and agents

     1.  Cease and desist from refusing to bargain collectively
with the Augusta Uniformed Firefighters Association by failing to
meet within ten days after receipt of a written notice requesting
a meeting for collective bargaining purposes where they have not
otherwise agreed in writing; and

     5 This is in keeping with federal law.  In Allied Chemical & 
Alkali Works Local 1 v. Pittsburgh Glass Co., 404 U.S. 157 (1971), the 
U.S. Supreme Court found that matters involving individuals outside 
the employment relationship are not wholly excluded from the subjects 
of mandatory bargaining.  In this case, the Court found that retirees 
are not employees within the meaning of the Wagner Act and that 
changes in their health benefits are not a mandatory subject.  
However, if a change in their benefits "vitally affects" the terms and 
conditions of active employees, the impact would be a mandatory 
subject.  Allied Chemical at 179.


     2.  Take the affirmative action designed to effectuate the
purposes of the Act of meeting with the Association for the
purposes of negotiating impact, if any, of health insurance
coverage changes on the terms and conditions of employment of
employees in the firefighter and platoon chiefs bargaining units
within ten days of receipt of this order, unless such impact was
inherent in the changes permitted by the parties' collective 
bargaining agreements.  The parties may meet beyond the ten-day
period if mutually agreeable.  The City must propose reasonable
and appropriate meeting alternatives to the Association.

Dated at Augusta, Maine, this 20th day of August, 2001.

The parties are advised of                       MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A.  968(5)(F) (Supp.
2000) to seek a review of this
decision and order by the                        /s/______________________________
Superior Court.  To initiate                     Jared S. des Rosiers
such a review, an appealing                      Alternate Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision                     /s/______________________________
and order, and otherwise                         Karl Dornish, Jr.
comply with the requirements                     Employer Representative
of Rule 80(C) of the Rules of 
Civil Procedure.  

                                                 Wayne W. Whitney
                                                 Alternate Employee Representative