Case No. 12-13
Issued: November 13, 2012








     On December 30, 2011, Local 1373, American Federation of
State, County, and Municipal Employees ("AFSCME") filed a
prohibited practice complaint with the Maine Labor Relations
Board ("Board") alleging that the City of Portland ("Portland")
engaged in prohibited practices within the meaning of 26 M.R.S.A.
§ 964(1)(A) and (E) of the Municipal Public Employees Labor
Relations Law ("MPELRL").  Specifically, AFSCME alleges that, by
refusing to respond in writing to an information request
concerning the use of on-call employees, Portland refused to
bargain collectively as required by statute.  Portland denies
that its actions violated the MPELRL.  As affirmative defenses,
it asserts that AFSCME waived its right to bargain over the issue
of on-call employees pursuant to section 40 of the collective
bargaining agreement ("Contract"), which allows Portland to use
on-call employees on an as-needed basis; that Portland did
respond verbally to AFSCME's request at more than one monthly
labor management meeting; and that Portland was not required to
provide a written explanation in this case.

[end of page 1]     

     On March 26, 2012, Neutral Chair Peter T. Dawson convened a
prehearing conference in this matter.  AFSCME was represented by
Erin L. DeRenzis, Esq., and Portland was represented by Ann M.
Freeman, Esq.  Since there was a high potential for a stipulated
record, which would render an evidentiary hearing unnecessary,
the April 12, 2012 Prehearing Conference Memorandum and Order
required that the parties confer within 14 days of the order and
report the results.  
     At the prehearing conference, the following joint exhibits
were agreed to by the parties:

     J-1:  Portland/AFSCME Local 1373 Agreement, January 1, 2010-
           June 30, 2012
     J-2:  Letter from James Breslin dated 7/5/11 re: Information
     J-3:  List of names of on-call or "per diem" staff and
           Hours worked for months of May and June
     J-4:  Letter fro James Breslin dated 7/20/12 re: Information
          J-5:  Memorandum from Tom Caiazzo dated 7/29/11 re:      
          Information Request
          J-6:  Letter from James Breslin dated 11/14/11 re:     
          Information Request
          J-7:  List of on-call or per diem staff and hours worked for 
           months of September and October
     J-8:  Labor Management meeting agenda dated December 13,     


     Complainant AFSCME is the bargaining agent, within the
meaning of 26 M.R.S.A. § 962(2), for the Portland Local 1373. 
Local 1373 is a public employee organization within the meaning
of 26 M.R.S.A. § 968(5).  Portland is the public employer of the
employees in the unit within the meaning of 26 M.R.S.A. § 962(7). 
The jurisdiction of the Board to hear this case and render a
decision and order lies in 26 M.R.S.A. § 968(5).
[end of page 2]

                        FINDINGS OF FACT

     On May 2, 2012, the parties submitted the following
stipulations of fact:

     1.   The Respondent (Portland) is a public employer.

          2.   AFSCME, Council 93 is the bargaining agent for
          certain employees working for the City of Portland.

          3.   The Respondent (Portland) and the Union (AFSCME)
          are parties to a Collective Bargaining Agreement
          covering the period of January 1, 2010 through 
               June 30, 2012.

          4.   The Union (AFSCME) is the sole and exclusive
          representative for employees working for the City
          of Portland and covered under the Collective
          Bargaining Agreement Between the City of Portland
          and AFSCME Council 93- City Employee Benefits
          Association (CEBA) Local 1373.  Appendix A of the
          parties Collective Bargaining Agreement contains 
               a provision allowing for the use of "On-call
          employees" under certain conditions.  These
          employees are excluded from the bargaining unit.

          5.   During the month of July 2011 the Union (AFSCME)
          started to investigate how the Respondent (Portland)
          was utilizing "On-call employees," and whether or
          not the Respondent (Portland) was in violation of
          the negotiated terms and conditions governing the
          utilization of "On-call employees."  On July 5,
          2011, the Union (AFSCME) forwarded an information
          request to the City of Portland Director of Human
          Resources.  (Ex. 2)

          6.   On July 12, 2011 the Respondent (Portland) fulfilled
          the request for information.  (Ex. 3)

          7.   On July 20, 2011 the Union (AFSCME) filed an
          additional request seeking clarification based on
          the information provided by the Respondent
          (Portland) on July 12, 2011.

          8.   The information sought was non-confidential in
          nature and pertained to the performance of
          bargaining unit work.
          [end of page 3]
          9.   In its request, the Union (AFSCME) identified that
          it was investigating a matter concerning the
          administration of the Collective Bargaining
          Agreement, specifically Appendix A.  (Ex. 4)

          10.  On July 29, 2011 the Respondent (Portland) notified
          the Union (AFSCME) that it was not fulfilling the
          information request and that it was not obligated
          under Maine law to answer questions.  (Ex. 5)

          11.  The Union (AFSCME) continued to monitor the use of
          "On-call employees" performing bargaining unit work,
          and on November 14, 2011 submitted an additional
          information request to the respondent.  (Ex. 6)

          12.  On December 13, 2011 the Respondent (Portland)
          fulfilled the request for information that was
          submitted on November 14, 2011.

          13.  On December 13, 2011, the Union (AFSCME), at the
          monthly Labor Management Meeting, again sought
          information explaining why "On-call employees" 
               were performing bargaining unit work on a regular

          14.  At the December 13, 2011 labor management meeting
          the Respondent (Portland) reiterated its position 
               as set out in its July 29, 2011 letter; that it
          would not be providing the Union (AFSCME) with a
          written explanation in response to the Union's
          information request and that it was not required 
               to do so under Maine law.  (Ex. 8)

          15.  The parties stipulate that the Union's (AFSCME's)
          information requests in this matter were reasonably
          related to the performance of its duties as bar-
          gaining agent, and was relevant to the bargaining 
          process and to the Union's administration of the
          contract;  the City's (Portland's) only contention 
          is that it does not have to provide a written
          explanation.  (See Ex. 5)

     AFSCME alleges that Portland has violated 26 M.R.S.A. 
§§ 946(1)(A) and (E) by refusing to respond in writing to its 

[end of page 4]

specific and relevant requests for relevant information, which it
claims are necessary to investigate the performance of bargaining
work by non-bargaining unit members.  Portland acknowledges its
duty to provide information, but argues it is not required to
furnish the requested information in writing, citing Portland
School Committee and Portland Teachers Assoc./MTA, No. 93-27 at
16 (MLRB, Feb. 17, 1994) ("[T]he right to relevant information is
not absolute... .").  Portland states that it has provided
relevant information to the Union and has suggested that the
Union review other information as a means to obtain the
explanation it seeks.  Portland also contends that the Freedom of
Access Law protects it from disclosing the information about the
utilization of a particular on-call worker, arguing: 
     By requesting the City provide them with a written
     explanation, or "why", a certain employee worked the
     hours she did, the Union is asking the City to put in
     writing its analysis of potential proposals received
     for purposes of negotiations which is expressly exempt
     under section 402(3)(D) of the freedom of access law.
     The Union, while perhaps not intentionally, is 
     essentially trying to circumvent this prohibition
     on written materials relating to analysis of a
     bargaining position... .
Portland Brief at 5.  We reject this argument.  This case does
not implicate the Freedom of Access Law, but rather the scope of
an employer's obligation to furnish information sought by the
Union in the course of administering an existing collective
bargaining agreement.
     It is well settled that the duty to bargain includes the
duty to provide information relevant to the bargaining process. 
This duty extends to information requested in order to administer 

[end of page 5]

contracts once they are negotiated.[fn]1   E.g. MSAD No. 45 v.
MSAD No. 45, Teachers Ass'n, No. 82-10 at 10- 11 (MLRB Sept. 17, 1982);
Portland School Committee v. Portland Teachers Ass'n, et al., No.
93-27 at 16 ((MLRB Feb. 17, 1984).  The information requested by
the Union--an explanation regarding the use of certain on-call
workers--is a request for information (not, as Portland contends,
a request for an "opinion") and Portland has a duty to respond to
it, notwithstanding the absence of any pending grievance.  
     The next question is whether Portland is required to furnish
the information sought by AFSCME in writing rather than verbally. 
This is an issue of first impression for the MLRB.  Because the
issue presented is one of first impression for the Board, "we
will 'look for guidance to parallel federal law, found in the
National Labor Relations Act and decisions thereunder' in
reaching our conclusion."  Teamsters Local Union No 48 v.
Eastport School Department, No. 85-18 (Oct. 10, 1985), quoting
Baker Bus Service v. Keith, 428 A.2d 55 n.3 (Me. 1981).  See
also, AFT Local 3711 v. Sanford School Committee, No. 01-24 at 8
(Jan 31, 2002) (Where previously uninterpreted Maine statute is
comparable to federal act, Board will turn to NLRB and federal
courts for guidance in interpreting Maine law); Buzzell et al.
and MSEA Local 1989 v. State of Maine, No 96-14 at 5 (Sept. 22,
1997) (Decision to use "right to control" test to define
"employee" consistent with Law Court's suggestion to look for
guidance from NLRB and federal law. 
     In Cincinnati Steel Castings Co., 86 NLRB 592(1949), the
Union alleged that the employer refused to bargain in good faith
     1    In this case, AFSCME alleges it sought information regarding
Portland's use of on-call workers in order to administer the Contract;
specifically, to ascertain whether Portland is in compliance with the
Contract's terms regarding on-call workers.  Because AFSCME is not requesting
this information in order to negotiate over the use of on-call workers,
Portland's waiver argument is misplaced.

[end of page 6]

when it offered to provide the Union with requested information
regarding employees' classifications and wage rates orally rather
than in writing.  The NLRB held that the employer's response was
sufficient, stating: 

          As we have frequently held, an employer's refusal,
     during bargaining negotiations, to furnish necessary
     information to the representative of his employees 
     shows a lack of good faith in bargaining, and
     constitutes, in itself, a violation of Section 8(a)(5)
     of the Act.  However, we have not held, nor do we now
     hold, that the employer is obligated to furnish such
     information in the exact form requested by the
     representative.  It is sufficient if the information 
     is made available in a manner not so burdensome or
     time-consuming as to impede the process of bargaining.

Cincinnati Steel Castings Co., 86 NLRB at 593 (footnote omitted).
     We agree with the NLRB's decision in Cincinnati Steel. 
Where a party seeks information relevant to the bargaining
process or to administering an existing contract, the duty is to
provide the requested information in a form that will be useful
to the requestor without undue burden.  In some cases, due to the
nature or volume of the information sought, a written response
may be required.  Here, however, AFSCME has not shown that the
information it requests--an explanation as to why Portland was
using on-call workers to perform certain work--will only be
useful if received in written form or will cause undue burden if
provided verbally. 
     The Board finds that Portland did not violate the MPELRL by
declining to provide the requested information in writing.  It is
unclear from the request presented whether Portland has provided
the requested information at all (i.e., verbally) and the Board,
therefore, does not make any findings in that regard.  If, in
fact, Portland has not responded to the information request, it
is expected to do so post haste, though--in keeping with this 

[end of page 7]

decision--its response need not be in writing.

     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. § 968(5)(C), it is ORDERED:

     That the prohibited practice complaint, filed on
     December 30, 2011, in Case No. 12-13, be and hereby  
     is dismissed.
Dated at Augusta this 13th day of November, 2012.


The parties are advised of their right pursuant to 26 M.R.S.A. Sec. 968(5(F) to seek review of this decision and order by the Superior Court by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.


Katharine I. Rand

Karl Dornish, Jr.
Employer Representative

Wayne W. Whitney
Employee Representative