This Law Court case is not an appeal of an MLRB decision.
It has been placed on the Board's website because it is a 
noteworthy case involving Maine's public sector collective 
bargaining laws.



                    CITY OF LEWISTON et al.
             LOCAL 1828 OF COUNCIL 74 and Lewiston 
                      Patrolman's Unit of Local 1828 

               The POLICE COMMISSION OF the CITY
                       OF LEWISTON et al.

                Supreme Judicial Court of Maine

                         March 1, 1976


     WEATHERBEE, Justice.

     This case involves appeals from two related actions decided in the
Superior Court in Androscoggin County.  The first, brought by the Lewistown
Firefighters Association, Local 785 of the International Association of
Firefighters, AFL-CIO (hereinafter the Firefighters Union) against the City of
Lewiston, sought damages, injunctive relief and a declaration of rights and
duties arising from the City's alleged violation of a parity pay provision in
the Lewiston City Charter and in several of the collective bargaining agreements
entered into by the parties since 1966.

     The second action, brought by the Lewiston Patrolman's Unit of Local 1828 of
the American Federation of State, Municipal and County Employees (hereinafter
the Police Union) against the Firefighters Union and the City, sought a
declaration that the parity pay provision in the City's Charter had been
impliedly repealed by the passage of the Municipal Public Employees

Labor Relations Law (MPELRL) and, also injunctive relief against the parity pay
provision's operation.  Both the Police and the Firefighters Unions now appeal
to this Court from decisions adverse to them.

     The factual underpinnings of these two suits are somewhat entangled but may
be summarized as follows.

     In 1965, the Legislature enacted two pieces of legislation of particular
import to members of the Lewiston Fire Department.  First, it amended the
Lewiston City Charter to require that firefighting personnel "[should] receive a
weekly rate of compensation in an amount no less than that of equivalent
officers and privates in the Lewiston Police Department." P. & S.L., 1965, ch.
33,  1.  Secondly, it enacted the Firefighters Arbitration Law (P.L. 1965, ch.
396) which permitted firefighters to be represented by a labor organization and
to bargain collectively with their municipal employers,n1 a privilege not yet
granted to other public employees.

     Firefighters in Lewiston then organized, chose the Lewiston Firefighters
Association, Local 785, International Association of Firefighters, AFL-CIO, as
their collective bargaining representative and entered into a series of
employment contracts with the City, all of which provided, in some form or
other, for parity pay between the Police and the Firefighters.

     In 1969, the Legislature enacted the MPELRL (26 M.R.S.A.  961-72) which
extended to all municipal employees the rights to organize and bargain

     On November 25, 1972, in accordance with the remedies provided by its
collective bargaining agreement, the Firefighters brought a labor grievance
before a Board of Arbitrators, claiming that the City had compensated its
firefighters at a weekly rate less than that of persons of equivalent rank in
its police force in violation of both the City Charter and their employment
contract with the City.

     Before the Arbitrators had reached their decision, the Firefighters Union
brought its complaint against the City, its Aldermen and the members of its Fire
Commission, charging these defendants with violating the parity pay provisions
of both the City Charter and their employment contract and seeking money
damages, a declaratory judgment as to the parties' rights under both the Charter
and the contract and injunctive protection against future breaches.n2  The
defendants answered denying any violations and asserting as affirmative
defenses:  (1) that the subject matter was presently before the Board of
Arbitrators; (2) that the statute of limitations had run; (3) that laches, based
upon the Firefighters' failure to object to earlier similar discrepancies in
compensation, barred relief; (4) that the subsequent enactment of the MPELRL
repealed by implication the parity pay provision of the Charter; and, (5) that
the parity pay provision in the contract was not bargained for but was included
only to conform to the Charter mandate.

     In the meantime, implementing the rights given them by the MPELRL, the
Lewiston Patrolman's Unit of the Police Department had selected a collective
bargaining agent, Local 1828, and had entered into an employment contract with
the City Council and the Police Commission on January 1, 1971.  This contract
determined wages and conditions of employment from that date until January 1,
1974, but permitted the parties to renew collective bargaining for a new wage
scale at the end of the first or second years of the contract.  The Police Union
served notice for such collective  

1.  The Firefighters Arbitration Law was expressly repealed by the MPELRL.
P.L. 1969, ch. 424,  971(2).

2.  The Firefighters Union and the City have taken the position that the
factual questions of "equivalent ranks" between the Police and the Fire
Departments and the amounts of back pay, if any, due the various plaintiffs
should be decided by arbitration if these issues are not finally determined by

bargaining which began in September, 1971.  During the ensuing bargaining, 
each side offered a new wage proposal which was rejected by the other.

     Factfinding was requested (26 M.R.S.A.  965) in an attempt to resolve this
impasse.  The factfinders recommended acceptance of the police wage proposal and
the patrolmen, not surprisingly, voted to accept this recommendation.n3  The
City authorities, however, refused to comply with the recommendation, contending
that the City had already entered into a contract with the Firefighters Union,
that the parity pay provision of the City Charter prohibited any increase 
in police pay without a simultaneous corresponding increase in the Firefighters'
wages, and that the City did not have sufficient finances to fund both

     On April 20, 1972, after extended negotiations, the Police accepted a City
wage offer with the condition that, if requested, renegotiation would begin in
January, 1973.

     When the Police requested renegotiation on January 1, 1973, the City refused
to negotiate until the new pay period beginning January 1, 1974, contending that
the City Charter compels the City to compensate Firefighters at a weekly rate
"no less" than that received by equivalent ranks in the Police Department and
that because the City and the Firefighters already had a new contract
providing for wages through December 31, 1973, it could not now raise the Police
salaries without breaching its contract with the Firefighters.

     The Police Union then brought its action against the Police Commission, the
Lewiston City Council and the Firefighters Union, asserting that the parity pay
provision in the City Charter is inconsistent with and repugnant to the MPELRL
which repealed that provision by implication, and that the MPELRL obligated the
City to bargain in good faith with respect to wages.  The Police Union sought a
declaration that the parity pay provision was repealed by implication and prayed
that the operation of this provision of the charter be enjoined.

     The municipal defendants answered, joining in the request for a declaratory
judgment.  The Firefighters Union argued that, as an alleged prohibited labor
practice, the Police claim was within the exclusive jurisdiction of the Public
Employees Labor Relations Board (now the Maine Labor Relations Board) and as
such was barred by the statutory six-month statute of limitations (26 M.R.S.A.

     Both the Police and the Firefighters Unions moved for summary judgment
on the Police Union's complaint.  The parties to the Firefighter's complaint
agreed to submit all legal issues to the presiding Justice, while stipulating to
arbitrate those issues left unresolved by final adjudication.

     The Justice dismissed the Police complaint, ruling that it alleged a refusal
to bargain collectively, a prohibited practice in municipal public
employer-employee labor relations, exclusive jurisdiction over which is vested
in the Public Employees Labor Relations Board by 26 M.R.S.A.  968.  The Police
Union appealed this ruling.

     The Justice then turned to the Firefighters' complaint and met the issue
common to both actions -- the validity of the parity pay provision in the
Charter and the Firefighters' contracts.  The Justice ruled that the broad scope
and design of the MPELRL impliedly repealed the parity pay provision in the

     He then addressed the Firefighters' contention that, regardless of the status
of the Charter provision, the right to parity pay  

3.  During this period, the City had signed a new contract with the
Firefighters Union, requiring wages similar to those that the City had
unsuccessfully offered to the Police.  This contract appeared to bring the
Firefighters' weekly pay up to parity with that of the Police, but the
Firefighters contend it failed to do so because of divergent ranking standards.

should be enforceable as a matter of contract.  Holding the contract provision invalid, 
the Justice determined that the parity pay provision was included in the contract only
because the Charter required it and that, even if its inclusion were the result
of voluntary collective bargaining, such an agreement is void as contrary to the
policy of the MPELRL.

     On the question of the period of time that the arbitrators may consider in
determining allowable damages representing parity pay, the Justice held that
because the right to parity was statutory and not contractual, the proper
limitation period was the six-year statute of limitations on civil actions and
not the six-month limitation on grievances found in 26 M.R.S.A.  968(5)(B).
Alternatively, he held that if the grievance procedure limitations do apply,
they should be applied by the arbitrators and not the Court.  Finally, he held
that if the Court must consider such defenses, questions concerning the amount
of parity pay due under expired contracts prior to the enactment of the MPELRL
would properly be before the Arbitrators because of continuous and successive
contracts agreeing to parity pay.  He held that neither the Court nor the
Arbitrators could, however, award damages representing parity pay for any period
more than six years prior to the commencement of the Firefighters' action.

     The Justice  issued a judgment in favor of the Firefighters as
qualified by these holdings.  Its effect was to limit the Arbitrator's
consideration of the Firefighters' claim for additional compensation to the
period from January 2, 1966 to the effective date of the MPELRL (October 1,
1969), subject to the effect of the six-year statute of limitations.

     The Firefighters Union appeals, alleging that the Court's holding intrudes
upon the jurisdiction of the Arbitrators to determine procedural matters
regarding the timeliness of claims and the substantive matter of the continuing
validity of the contractual parity pay provision.  The Union also appeals the
Court's determination that the parity pay provision in the City Charter was
impliedly repealed by passage of the MPELRL.

     For reasons set out below, we hold that the Court erred in its assumption of
jurisdiction over the procedural and substantive matters regarding the alleged
contractual right to parity pay before passage of the MPELRL and remand that
matter to the Court for consideration only of the application of the City's
affirmative defense of laches. We hold that the Court retains jurisdiction over
the Firefighters' claim to parity pay under the Charter prior to
enactment of the MPELRL.  We sustain the Court's ruling on the implied repeal of
the Charter and the invalidation of any contractual right to parity pay by the
enactment of the MPELRL.  Because our decision on the implied repeal of the City
Charter provision effectively disposes of the Police Union's complaint against
the City, we find it unnecessary to reach the issue of whether the Maine Labor
Relations Board had exclusive jurisdiction over that complaint.

     Implied repeal of the Parity Pay Provision

     This Court has long acknowledged the principle that repeals by implication
are not favored and will not be upheld in doubtful cases.  State v. London, 156
Me. 123, 162 A.2d 150 (1960); Inman v. Willinski, 144 Me. 116, 65 A.2d 1 (1949);
Eden v. Southwest Harbor, 108 Me. 489, 81 A. 1003 (1911). Yet this "presumption"
against repeal by implication is not an inflexible bar to judicial inquiry but
is, rather, a manner of stating legislative intent.  State v. London, supra, 156
Me. at 126, 162 A.2d at 152. Thus, the implied repeal of an earlier by a later
statute is grounded in

     ". . . the reasonable inference that the legislature cannot be
     supposed to have intended that there should be two distinct enactments
     embracing the same  

     subject matter in force at the same time, and that the new statute, 
     being the most recent expression of the legislative will, must be
     deemed a substitute for previous enactments, and the only one 
     which is to be regarded as having the force of law."
     Knight v. Aroostook Railroad, 67 Me. 291, 293 (1877).

     A repeal by implication is based upon an inference by the Court, who must,
without guidance from any express statement of the legislative will, divine the
intent of the legislature from indirect evidence.  We have said, therefore, that
an implied repeal results when a later statute covers the whole subject matter
of an earlier statute or when an earlier statute is repugnant to or inconsistent
with a later one (State v. Taplin, Me., 247 A.2d 919 (1968)), for duplicative
or conflicting enactments are contrary to rational and effective legislation,
which goal it is the "intent" of the Legislature to achieve.  As succinctly
noted by a distinguished commentator, legislative "intent" carries various,
equally valid, connotations.  Legislative intent may be used to convey a sense
of purpose or the general aim of legislation or it may refer to the
particularized application for which the statute was designed.  Cox, Judge
Learned Hand and The Interpretation of Statutes, 60 Harv.L.Rev. 370 (1947).

     In the latter instance where the particularized application of two statutes
produces inconsistent or mutually "repugnant" results, the repeal by implication
may be limited to the extent of the inconsistency.  State v. Bryce, Me., 243
A.2d 726 (1968). When, however, the contest is between a statute of state-wide
application and one local in scope, the general purpose and tenor of the
state-wide legislation may evidence an "intent" to pre-empt the field and would
foreclose the power of a subordinate political unit from enforcing even
supplemental or consistent regulations.  Chavez v. Sargent, 52 Cal.2d 162, 339
P.2d 801 (1959); see Starbird v. Brown, 84 Me. 238, 24 A. 824 (1892).  In such a
case, the conflict is one of jurisdiction between the state and a lesser
political entity.

     In the present case, we believe that the overall purpose, scope and design of
the MPELRL bespeaks a legislative intent to place under uniform legislation and
remove from local control that aspect of public labor relations
represented by the parity pay provision.  Most probably, the Legislature lacked
a specific purpose to invalidate this particular piece of special legislation.
We nevertheless believe that the Legislature intended that which will best
effectuate the purpose of the MPELRL and we follow that intent by invalidating a
charter provision that interferes with its effective functioning.

     The stated purpose of the MPELRL is

     "to promote the improvement of the relationship between public
     employers and their employees by providing a uniform basis for
     recognizing the right of public employees to join labor organizations
     of their own choosing and to be represented by such organizations in
     collective bargaining for terms and conditions of employment." 26
     M.R.S.A.  961.

To these ends, the MPELRL acknowledges and protects the public employee's right
to self-organization and establishes the methods that may lawfully be used to
implement that right.  Thus, the MPELRL enables employees to form a bargaining
unit and select a bargaining representative.  It imposes upon the employer the
duty to bargain with that representative who has the exclusive power to
bargain wages, hours and working conditions for all employees in the bargaining
unit. The employees and the employer have the right to establish voluntarily an
appropriate bargaining unit; if they are unable to agree on this matter
privately, the Executive Director of the Maine Labor Relations Board is
empowered to determine the appropriate unit.  If determined by the Executive
Director, the unit configuration must ensure ". . .  

a clear and identifiable community of interest among the employees concerned." 
26 M.R.S.A.  966(2).  Although this language in the Maine statute has not yet been construed,
nearly identical language in the National Labor Relations Act has been
interpreted to mean "a substantial mutual interest in wages, hours and
conditions of employment" (mandatory subjects of collective bargaining under
both the MPELRL and the National Labor Relations Act).  Allied Chemical & Alkali
Workers v. P.P.G.Co., 404 U.S. 157, 172, 92 S. Ct. 383, 394, 30 L. Ed. 2d 341,
354 (1971).

     Unit determination under the MPELRL performs three distinct but interrelated

     "First, it creates election districts by determining which of all
     municipal employees will be eligible to vote in the
     representation election. . . .  Second, the unit determines the
     community that will be governed by the collective bargaining contract.
     . . .  Third, the unit determination creates an economic unit,
     identifying those employees whose wages and working conditions will be
     determined by the collective bargaining contract."  McGuire and Dench,
     Public Employees Labor Relations Law:  The First Five Years, 27
     Me.L.Rev. 25, 67-8 (1975).

     The institutional purpose of the bargaining unit, then, is to strengthen the
bargaining position of the employees as a group.  It does so procedurally by
aggregating the employees into a unit and thus providing the basic mechanism for
collective bargaining; it does so substantively by defining the group whose
economic rights and benefits will be governed by majoritarian processes.  The
bargaining unit is, in short, a fundamental element in the self-governing
relation between the public employee and his employer.  Indeed, under the
National Labor Relations Act, the coherent bargaining unit is perceived as a
necessary condition for effectuating the national labor policy of collective
bargaining.  Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.
Ct. 908, 85 L. Ed. 1251 (1941).  In light of the role played by the bargaining
unit, we likewise believe that the two fundamental purposes of the MPELRL --
freedom of employee self-organization and voluntary adjustment of the terms of
employment -- are best effectuated through the creation of coherent bargaining
units composed of employees who have "an identifiable community of interest" in
the subjects controlled by the collective bargaining agreement.

     The parity pay provision of the Lewiston City Charter requires Firefighters
to receive a weekly rate of compensation "no less" than that received by the
Lewiston Police.  Wages, of course, are a mandatory subject of collective
bargaining. The effect of the parity pay provision is to place the bargaining
representative of the Lewiston Patrolman's Unit in the position of negotiating
wages not only for those whom he was chosen to represent but, indirectly, for
the Lewiston Firefighters as well.  The facts of this case clearly show how the
parity pay provision has (to the detriment of efficient collective bargaining)
affected the public employer's perception of its freedom to negotiate this
aspect of the employment relationship.  In other words, the procedures
established by the MPELRL for determining the configuration of the unit whose
wages will be determined by collective bargaining between its elected
representative and the employer are evaded by the parity pay provision which, at
the bargaining table, necessarily interjects the interests of the Lewiston
Firefighters into the unit created to represent the Lewiston Police. This
situation unit whose wages are to be determined by the collective bargaining
agreement contravenes the employees' collective right to be included in a unit
composed of those with whom they share a "community of  

interest" n4 and hence is contrary to the policy of the MPELRL which, to that end, requires
that the configuration of all units not voluntarily established by employee-employer
agreement be monitored by the Maine Labor Relations Board.

     We do not believe that the MPELRL was intended to repeal every statutorily
imposed handicap the parties may carry with them to the bargaining table.  The
public employer, for example, has its bargaining muscle weakened by the various
statutes promulgating minimum wage limits for public employees (e.g. 20 M.R.S.A.
 1901; 26 M.R.S.A.  663(7)) or by its statutory obligation to provide Workmen
's Compensation for its employees.  The obligations represent minimum
requirements upon which the parties are free to build within the negotiating
process designed and fostered by the MPELRL.  They limit the employer's
flexibility in obvious ways; so might they also limit the bargaining of the
municipal employee who should realistically expect the financial obligations
that the law imposes upon municipal officers in other areas might restrict funds
available to meet employee demands.  Yet such restraints upon unfettered
bargaining do not, as does the parity pay provision, violate the coherence of
the bargaining unit and thereby interfere with a right conferred upon employees
collectively to secure the processes of labor-management bargaining. Social
legislation, such as minimum requirements, establishes an individual
right by guaranteeing the employee a legislatively determined minimum standard
of protection.  The MPELRL does not guarantee public employees the right to
secure ideal wages, hours and working conditions.  It does, however, provide a
process by which employees are able to advance their demands in those areas.
Inhering in the purpose of the MPELRL is a legislative intent that, for the
bargaining process to function effectively, the parties must be allowed to
conform to the unit determination procedures established by the Act.

     We are aware that municipal ordinances or charter provision addressing
exclusively local affairs may, in some instances, supersede statutes of
state-wide application.  E.g., Strode v. Sullivan, 72 Ariz. 360, 236 P.2d 48
(1951); cf. ME. 8, PART SECOND,  1.  We are also aware of the
advantages of municipal autonomy which permits greater responsiveness to local
needs.  It is clear, however, that the Legislature has already balanced the
often competing interests of state and local control and, in the MPELRL,
resolved that contest in favor of the state.  A series of varying and
inconsistent local laws can engender only confusion in the law of public
employee labor relations, confusion that is abated only by uniform legislation.
Stephenson v. City of Palm Springs, 320 P.2d 238 (Cal.App. 1958); see Glassman,
Maine Labor Law, 21 Me.L.Rev. 1, 19-23 (1969).

     We conclude, therefore, that the enactment of a uniform, state-wide system
for the determination of bargaining units for municipal employees repealed by
implication the parity pay provision of the Lewiston City Charter.  Both the
scope and policy of the MPELRL are sufficiently all inclusive so that, in the
absence of any indication of an intent to the contrary, no exclusively local
legislation addressing the same area should be permitted.  See Stephenson v. 
City of Palm Springs, supra; Town of Palm Beach v. Palm Beach Loc. 1866, 275
So.2d 247 (Fla. 1973).  We believe that the Legislature should be deemed to have
intended the repeal in order best to effectuate the policies of the MPELRL.

4.  Under section 966 of the MPELRL, public employees and their employer are
apparently free to determine unit configuration and it is possible that the
City, the Police and the Firefighters could establish a unit composed of both
Firefighters and Police officers.  The appropriateness of this voluntary
aggregation is not presented by the facts and nothing we say here is intended to
prejudge such a possibility.

Jurisdiction to Decide the Alleged Contractual and Statutory Rights to 
Parity Pay

     All of the several employment contracts between the City and the Firefighters
Union provided, by specific reference to the City Charter, for parity
pay between the Lewiston Firefighters and the Lewiston Police.  The presiding
Justice concluded that the parity pay provision was included in the contracts
only because it was required by the Charter and that it was not enforceable as a
contract right because it had not been "separately bargained for".  He further
noted, incidentally, that because the continuing validity of the contract
provision would render the repeal of the Charter provision "a meaningless
gesture", the contract provision was void as contrary to public policy.

     We agree with this last conclusion.  Contract provisions contrary to public
policy are void as nonenforceable.  Pringle v. Gibson, 135 Me. 297, 195 A. 695
(1937).  We have stated above the reasons why the Charter provision is contrary
to the policy of the MPELRL.  That same rationale invalidates the parity pay
provisions in the employment and collective bargaining agreements.  From and
after the date the MPELRL became effective (October 1, 1969) the contract right
to parity pay was unenforceable.  Prior to that date, however, both the Charter
and the contract parity pay provisions were valid and the Firefighters' Union
now contends that the Firefighters are entitled to damages representing
allowable pay under those provisions.n5  Because we believe that, until October
1, 1969, the Firefighters' right to parity may have been both contractually and
statutorily enforceable, we will consider each of these rights separately.

1.  The Contractual Right to Parity Pay

     The Court's opinion issued upon the parties' motion for summary judgment.
Each of the contracts between the City and the Firefighters Union prior to 1969
provided that ". . . wages shall be paid as set forth in the City Pay Plan
Police and Fire Schedule . . . subject, however, to the provisions of Section 4A
of Article 12 of the City Charter [the parity pay provision] . . . ."
The Justice concluded that, as a matter of law, this language did not give the
Firefighters a contractual right to parity pay.  We believe the Justice erred in
this ruling.

     In order for the Court to interpret facially the language of a contract
provision, that provision must be completely unambiguous.  Blue Rock Industries
v. Raymond International, Inc., Me., 325 A.2d 66 (1974).  Where the contractual
language is ambiguous, its meaning is a matter for the trier of the fact.
Wiggin v. Sanborn, 161 Me. 175, 210 A.2d 38 (1965); Gillentine v. McKeand, 426
F.2d 717 (1st Cir. 1970).  The trier of fact may in such a case look to parol
evidence as an aid in the interpretation of the contract.  Blue Rock Industries,
supra; Trafton v. Custeau, 338 Mass. 305, 155 N.E.2d 159 (1959).  We do not
believe that the question of whether the above provision was included in the
contract only as a pro forma recognition of the City Charter provision or was
intended to create a contractual right independent of the Charter may be
resolved without an evidentiary hearing.  The provision in the contract is
sufficiently ambiguous to present a "genuine issue as to [a] material
fact." M.R.C.P., Rule 56(c).  The resolution of this issue should follow a
hearing at which the intent, past practice and the bargaining history of the
parties may be fully explored.

5.  The complaint for damages includes as plaintiffs the Firefighters Union
and retired, resigned and current members of the Union.  Thus, no question is
raised of the Union's standing to bring a civil action to recover unpaid wages
on behalf of the members.  See Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn 
S.P.A., Me., 320 A.2d 247 (1974).

     Therefore, the question whether the Firefighters have any contract
right to parity and, if so, whether they are entitled to further compensation
under it for the period from January 2, 1966 to the effective date of the MPELRL
-- and also the question whether, alternatively, the Charter entitles them to
further compensation for the period from effective date of the Charter to the
effective date of the MPELRL -- both remain to be decided.

     While determination of right to compensation under the Charter is a judicial
matter, we believe that the questions of the meaning and effect of the contract
provision should be determined by the arbitration procedures established by the
parties' contract and not by the Trial Court.

     Procedures governing the disposition of anticipated disputes between the
parties to a collective bargaining agreement are generally established by that
document.  The grievance arbitration procedures in the Firefighters' contracts
from January 1, 1967, the effective date of the first contract between
the parties, to the effective date of the MPELRL are typical.n6  Briefly, they
provide that the aggrieved party shall submit his grievance to the Grievance
Committee who will either dismiss it or submit it to the Chief of the Fire
Department within five days.  The Chief must render his decision within seven
days after receipt of the grievance.  Any appeal from the Chief's decision must
be made to the Board of Fire Commissioners within seven days who must, in turn,
render their decision within 15 days after receipt of the grievance.  Article
eight of the employment contract provides that

     "[all] claims, demands, disputes, differences, controversies and
     misunderstandings arising under, out of, or in connection with, or in
     relation to the terms and conditions of this agreement or as to its
     performance, including but not limited to or by any unresolved
     grievances . . ."

shall be settled by arbitration.  Within five days after notice, the City and the
Fire-fighters Union shall both select one arbitrator who within ten days shall
select a third arbitrator.  The arbitrators have ten days within which to
schedule a hearing which shall be concluded within 20 days after its
commencement.  The decision of the arbitrators is binding upon the parties.
Judicial enforcement of the grievance arbitration agreement is guaranteed by the
Maine Uniform Arbitration Act (14 M.R.S.A.  5927-49), which applies to such
agreements in both the public and private sectors.  Cf. Maine School Admin.  
Dist. #5 v. M.S.A.D. #5 Teach. Ass'n, Me., 324 A.2d 308 (1974).

     The precise question before us is whether a Court, presented with a complaint
seeking money damages for a claimed violation of rights under a labor contract
(which contains provisions for binding grievance arbitration) and also a claim
for entitlement to the same damages as a matter of law, should withhold
determination of the legal issues and send the dispute to arbitration 
under the contract.  We believe that the underlying purpose of the MPELRL
compels a conclusion that issues reasonably arguably subject to arbitration
under the parties own agreement should generally be sent to arbitration by the
Court.n7  In the absence of controlling language in our own statute, we find the
federal experience persuasive.

     In the so-called Steelworkers Trilogy (United Steelworkers of America v. 
American Mfg. Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960); United
Steelworkers of America v. Warrior & Gulf Navigation  

6.  Because any contractual right to parity pay can be enforced only under
contracts effective between these dates, the grievance arbitration procedures of
those contracts must control any disputes arising under their provisions.

7.  We are not unanimous as to the defense of laches, to be discussed later.

Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); United Steelworkers 
of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S. Ct. 1358, 4 L. Ed. 2d 
1424 (1960)), the United States Supreme Court held that the role of the judiciary in
determining whether a dispute is arbitrable under a given grievance arbitration
clause is restricted to ascertaining whether the parties have agreed to
arbitrate disputes and, if so, whether the party seeking arbitration is making a
claim which, on its face, is governed by the collective bargaining contract.
Where such is the case, the Court may not inquire into the merits of the
grievance but should remand it to arbitration.  The Court partially grounded its
decision upon the role of the arbitrator which it described as follows:

        "The labor arbitrator's source of law is not confined to the
     express provisions of the contract, as the industrial common law --
     the practices of the industry and the shop -- is equally a part of the
     collective bargaining agreement although not expressed in it.  The
     labor arbitrator is usually chosen because of the parties' confidence
     in his knowledge of the common law of the shop and their trust in his
     personal judgment to bring to bear considerations which are not
     expressed in the contract as criteria for judgment.  The parties
     expect that his judgment of a particular grievance will reflect not
     only what the contract says but, insofar as the collective bargaining
     agreement permits, such factors as the effect upon productivity of a
     particular result, its consequence to the morale of the shop,
     his judgment whether tensions will be heightened or diminished.  For
     the parties' objective in using the arbitration process is primarily
     to further their common goal of uninterrupted production under the
     agreement, to make the agreement serve their specialized needs.  The
     ablest judge cannot be expected to bring the same experience and
     competence to bear upon the determination of a grievance, because he
     cannot be similarly informed."  United Steelworkers v. Warrior & Gulf 
     Navigation Co., supra, 363 U.S. at 581-2, 80 S. Ct. at 1352-53, 4 L.
     Ed. 2d at 1417.

The Court further based its strong preference for arbitration over judicial
settlement upon its belief that it was effectuating the congressional intent as
manifested in section 203(d) of the Labor-Management Relations Act (29 U.S.C. 
 173(d)) which states in part:

     "Final adjustment by a method agreed upon by the parties is declared
     to be the desirable method for settlement of grievance disputes
     arising over the application or interpretation of an existing
     collective bargaining agreement." n8

     The MPELRL contains no such language.  Under its provisions, however,
contract grievance procedure is a mandatory subject of collective bargaining and this,  

8.  The Court also considered arbitration a desirable alternative to strikes
or work stoppages.  The Supreme Court has expressly recognized that the
employees' surrender of their right to strike in the private sector is the "quid
pro quo" for the employer's agreement to submit disputes to arbitration.  E.g., 
The Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 248, 90 S. Ct.
1583, 1591, 26 L. Ed. 2d 199, 208-09 (1970).  As noted infra, the MPELRL
specifically prohibits public employee strikes and this prohibition could, under
the traditional view of the relation between no-strike and grievance arbitration
clauses, require a more limited role for arbitration under the MPELRL.
Recently, however, the Supreme Court while holding that an arbitration provision
implied a duty not to strike, noted that the employer's contractual duty to
arbitrate is not necessarily dependent upon his employees' agreement not to

     "[An] arbitration agreement is usually linked with a concurrent
     no-strike obligation, but the two issues remain analytically distinct.
     Ultimately, each depends on the intent of the contracting parties. It
     would be unusual, but certainly permissible, for the parties to agree
     on a broad mandatory arbitration provision yet expressly negate any
     implied no-strike obligation." Gateway Coal Co. v. United Mine Workers
     of America, 414 U.S. 368, 382, 94 S. Ct. 629, 639, 38 L. Ed. 2d 583,
     594-95 (1974).

we believe, evidences legislative recognition that arbitration is
the "desirable method" for settling contract disputes under the MPELRL.  We
therefore conclude that the Supreme Court's construction of the National Labor
Relations Act as amended is applicable to the MPELRL in the present case so far
as the present issue is concerned.

     In addition to the reasons given by the Supreme Court in the Steelworkers
Trilogy, we perceive a reason unique to the MPELRL for limiting the function of
the Trial Court to determining whether the subject of the alleged dispute is one
which the parties have agreed to arbitrate.  We noted in City of Biddeford v. 
Biddeford Teachers Ass'n, Me., 304 A.2d 387 (1973):

     ". . .  the [MPELRL] does not contemplate the delegation of authority
     to public administrative boards or agencies but instead gives it to ad
     hoc panels whose memberships are not to be controlled by governmental
     action.  Here we are of the opinion that the Legislature, mindful of
     the denial to municipal employees of such economic weapons as
     strikes and work stoppages which are available to employees in private
     employment, has sought to avoid the disruptive feelings of resentment
     and bitterness which may result if the governmental employee may look
     only to the government for redress of his grievances."  304 A.2d at

     Although this was stated in the context of interests arbitration, we believe
it has application to arbitration of grievances and that in addition to the
entitlement to impartial arbitration, the Legislature considered that the
unavailability to public employees of these "economic weapons" entitle them to
an efficient and expeditious procedure for settling labor disputes.  As
evidenced by the relative brevity and specification of the arbitration
procedures established by the contracts here in issue, the arbitral process
provides such a method.

     "Arbitration agreements are for specific terms, generally much shorter
     than the time required for the adjudication of a contested lawsuit
     through the available stages of trial and appeal.  Renegotiation
     cannot await the outcome of such litigation; nor can the parties'
     continuing relationship await it."  Textile Workers Union v.
     Lincoln Mills, 353 U.S. 448, 463-4, 77 S. Ct. 912, 923, 924, 1 L. Ed.
     2d 972, 984 (1957) (opinion of Frankfurther, J., dissenting); see
     Shulman, Reason, Contract and Law in Labor Relations, 68 Harv.L.Rev.
     999 (1955).

In short, a time-consuming and laborious judicial settlement of a labor dispute
is just as likely to engender "disruptive feelings of resentment and bitterness"
among public employees as would the perceived unfairness of the settlement of
their disputes by a governmental agency.

     We are satisfied that, in such a situation as this, the Steelworkers'
philosophy that arbitration is more appropriate than trial procedures for
initial disposition of contract grievance disputes in the private sector, is
equally acceptable in the public sector.

     Although the City and the Firefighters are obligated to submit to arbitration
only those issues they have agreed to submit, we think that the arbitration
clauses do obligate the parties to submit the interpretation of the provision
now in question to arbitration.  The arbitration clauses cover "all claims,
demands, disputes, differences, controversies and misunderstandings arising out
of, or in connection with, or in relation to the terms and conditions of
this agreement or as to its performance . . . ."  This language is, on its face,
broad enough to encompass the present dispute.

     We wish to make clear, however, that the arbitrator has authority to settle
this dispute only if he determines that the agreements between the City and the
Union gave the Firefighters a contractual right to parity pay.  The origins of the

statutory and alleged contractual right to parity pay are legally
independent.  The arbitrator's authority is grounded in the contract which he
must interpret and apply in accordance with "the common law of the shop".
United Steelworkers v. Warrior & Gulf Navigation Co., supra.  He may resolve only
issues of contractual rights and if his decision is based "solely upon the
requirements of enacted legislation" he has exceeded his authority and his award
is unenforceable.  Ibid; Alexander v. Gardner-Denver Co., 415 U.S. 36, 53, 94 S.
Ct. 1011, 1022, 39 L. Ed. 2d 147, 161 (1974).  Because arbitration is
institutionally incompetent to effectuate the requirements of statutory law, the
first issue to be resolved by the arbitrator is whether the parties intended in
the contract to create an independent right to parity pay.  If he
determines that they did not and that the contract merely echoes the statutory
right, he can go no further.

     We do not agree with the Justice's conclusion that the six-year statute of
limitations (14 M.R.S.A.  752) must be applied to the Union's claim to its
right to back pay under the contractual parity pay provisions.  Arbitration is
not an action at law and the statute is not, therefore, an automatic bar to the
Firefighters' recovery.  Moreover, an adequate consideration of procedural
questions often requires analysis of the merits of the dispute and the final
disposition of such questions should be left to the arbitrator.  See Wiley & Sons
v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964).

     It is the opinion of the majority n8 of the Justices sitting in this case
that the arbitrator should also decide the issue of "laches" asserted in the
City's answer as an "affirmative defense" to the City's being required to
perform the contract.

     When raised in a Court proceeding a claim of laches has a degree of
uniqueness because it is cognizable only in equity as addressed to the
Chancellor's "conscience".  Yet, the substantive subject-matter of a laches
contention projects no distinctive, or difficult, concepts of law.  Laches is an
appeal to fairness in particular factual circumstances.  The laches "defense"
addresses whether basic fairness requires that the party alleged to have broken

8.  The writer of this opinion disagrees with this conclusion.  The defense of
laches applies to a party's failure to assert a right for "an unreasonable and
unexplained" length of time when this failure results in prejudice to the
adverse party.  A. H. Benoit & Co. v. Johnson, 160 Me. 201, 207, 202 A.2d 1, 5
(1964).  Laches is an equitable defense and is based upon another's good-faith
change in position, represented, for example, by opposing party's inability to
reproduce evidence lost through the passage of time.  Stewart v. Grant, 126 Me.
195, 137 A. 63 (1927).  However skilled the arbitrator may be in resolving
disputes based upon hours, wages or other issues customarily arising under the
terms of a collective bargaining agreement, I do not believe that his particular
expertise in the "common law of the shop" renders him uniquely qualified to
apply this equitable doctrine.  Courts, on the other hand are well experienced
in considering affirmative defenses to the enforceability of contracts and I do
not believe that that consideration would hopelessly entangle the Court in
substantive matters.

   I believe that the language in the collective bargaining agreement to which
the majority alludes should more reasonably be interpreted as referring to
differences over hours, wages, working conditions, etc., the types of disputes
typically arising under an employment contract and, no doubt, the types of
disputes envisioned by the parties when the contract was signed.  It seems
somewhat improbable to assume, as does the majority, that the contracting
parties intended that language to encompass a refined and, except to members of
the legal profession, obscure legal doctrine.  Despite its equitable origins,
the defense of laches has generated a core of distinctive legal principle and
the writer of this opinion cannot assume that the legal defense of laches is
entirely coincident with the considerations of "fairness" that the arbitrator
brings to bear upon his decision.  In my opinion, the considerations appropriate
to the resolution of this issue should properly be left to the judiciary.

   I would remand the issue to the Superior Court to determine whether the
Firefighters' claim under the contract is barred by laches. Then, if the Court
should decide that the Union was dilatory in bringing the dispute to the City's
attention, it would not submit the dispute to arbitration.

his contract should be excused from performing it when (1) the adverse
party claiming entitlement to performance has for an unreasonable length of time
failed to seek to vindicate his right to performance, and (2) the party from
whom performance is sought, relying in good faith on the other party's
non-action, has changed his position.

     Thus, nothing in the substantive content of a laches claim precipitates any
matter of important public policy which should prohibit the parties to a
collective bargaining agreement from including, as they may deem appropriate,
laches questions among those finally to be decided by arbitration.  Indeed, it is
common for arbitrators to deal with the factual aspects of the relative
positions of contracting parties and to evaluate what may be fair to the
parties in all the circumstances precisely because it is an acknowledged
function of arbitration to seek to maintain harmonious relations between the
disputing parties by doing essential "equity", as reasonably possible.

     Here, then, the critical question is whether the contracting parties had
agreed to submit the matters precipitated by the laches claim to the final
decision of an arbitrator.

     The instant collective bargaining agreement provides that an arbitrator shall

     ". . .  differences . . . arising out of, or in connection with, or in
     relation to the terms and conditions of this agreement or . . . its
     performance . . . ."

     The objective import of this extremely comprehensive language is that the
agreement of the parties fairly encompasses within the scope of arbitrational
decision the subject-matter of a claim of laches, as focused upon the
fundamental fairness, in a particular factual context, of requiring the City to
perform the contract.

2.  The Statutory Right to Parity Pay

     Regardless of the existence or non-existence of a contractual right to parity
pay, the Firefighters clearly had a statutory right to parity pay until
October 1, 1969.  The Firefighters are entitled to enforce this right in the
Court and if they prevail may, subject to the six-year statute of limitations,
recover damages representing allowable parity pay.  Assuming the existence of
both a contractual and a statutory right to parity pay, their origins are
independent of one another and we are not aware of any inconsistency in
attempting to enforce them successively before two different forums when those
forums are, according to their respective natures, uniquely suited to the
vindication of those rights.  An analogous situation occurs under the National
Labor Relations Act when the consideration of a claim by an arbitrator does not
foreclose the subsequent consideration of the same claim by the National Labor
Relations Board as an unfair labor practice.  Carey v. Westinghouse Corp., 375
U.S. 261, 84 S. Ct. 401, 11 L. Ed. 2d 320 (1964).

     The only danger presented by the possible dual enforcement of the two rights
is possible dual compensation, once from the arbitrator for parity pay due under
the pre-MPELRL contracts and again in court under the Charter provision.  The
Court, however, has the power to shape relief in a manner that would
prevent such an unconscionable windfall to the plaintiff.

     The entries will be:

     The appeal of the Police Union is dismissed without prejudice to its right to
seek injunctive relief again if necessary.

     The appeal of the Firefighters Union is sustained in part and the matter is
remanded to the Superior Court for proceedings in conformity to this opinion.

     DUFRESNE, C.J., and DELAHANTY, J., did not sit.

     All Justices concurring.