City of Bangor v. AFSCME and MLRB, 449 A.2d 1129 (Me. 1982), 
affirming in part CV-80-574 and affirming Board Order in No. 80-41.

MAINE SUPREME JUDICIAL COURT            Reporter of Decisions
                                        Decision. No. 3048
                                        Law Docket No. Law-81-407

                            CITY OF BANGOR



                        Argued: June 16, 1982
                      Decided:  September 8, 1982

       DUFRESNE, A.R.J.


     The plaintiff, the City of Bangor, has appealed from a
Superior Court (Kennebec County) judgment affirming in part and
modifying in part an order of Maine Labor Relations Board [here-
inafter referred to as the MLRB] requiring the city to cease and
desist from engaging in certain employment practices and to
offer reinstatement, and award back pay and various benefits
to several employees who were unlawfully discharged.  The de-
fendants, the American Federation of State and County Municipal
Employees, Council No. 74 (hereinafter referred to as the AFSCME)
and the MLRB, have cross-appealed from that part of the Superior
Court decision which reverses the Board's findings, and the
remedies dependent thereon, with respect to the employees' date


of permanent hire.  We deny the plaintiff's appeal and sustain
the defendants' cross-appeals.

     The City of Bangor hires operations and maintenance em-
ployees as permanent, full-time employees or as seasonal
laborers.  Under the Maine Municipal Public Employees Labor
Relations Law, 26 M.R.S.A.  961-972 (1974), "public" employees
have the right to join labor organizations.  Employees who have
been employed for less than six months or who are temporary,,
seasonal or on-call employees, are not considered 'public
employees' and therefore do not have a protected right to
join unions, are not members of any bargaining unit and thus
do not receive the wages and benefits of a unionized employee.
See 26 M.R.S.A.  962(F) and (G).  Operations and mainten-
ance employees are represented by the defendant in this case,

     By 1976, the city had begun hiring under the title of "sea-
sonal laborer" persons who in fact worked on a full-time,
permanent basis.  At the same time, the number of full-time
permanent workers in the bargaining unit was declining, from
nearly 90 employees in the period between 1974 and 1976 to
approximately 74 employees between 1977 and 1978.  These
changes in the character of the workforce prompted two members
of the union to speak to their union representative, Ross
Ferrell, about the status of the seasonal employees.  Ferrell
subsequently met with the union steward and secretary and
three seasonal employees who then decided to file a grievance


contending that they should have been included in the unit.[fn]1

     The city's Personnel Labor Relations Director, Jack Perry,
testified that he then informed Ferrell that the employees
would be fired if the grievance were pursued.  The employees
decided to go forward with their complaint and were fired in
October of 1978.  Perry subsequently explained the reason
for these discharges:

          Principally I had had it up to my neck with
          Ross Ferrell in filing grievances that people
          weren't filing.  I'll tell you frankly that
          that happened in a couple of cases that went
          before the Maine Board of Arbitration since
          that period.  And he filed a grievance on
          these guys relative to benefits that they
          should be receiving.  So I just called Hank
          [the Director of Operations and Maintenance]
          and I said "To hell with this.  Let's get rid
          of this damn problem right here and now."

Perry later met with two of the discharged employees, determined
that they had not personally filed the grievance, and decided
to rehire them, since he thought "it really was not these guys'
fault that they did this, why the hell should I punish them?"
The grievance was ultimately deemed non-arbitrable.

     Undaunted by the employer's actions, the union soon
thereafter filed a petition for unit clarification with the
MLRB.[fn]2  On October 17, 1979, the Board decided that it could

1.  The grievance was actually filed by the union on the
employees' behalf.

2.  The statute describing the conditions under which a petition
may be brought states that "any public employer or any recognized
or certified bargaining agent may file" the petition.  Therefore,
the union, rather than the seasonal employees, brought the
petition.  26 M.R.S.A.  966(3) (Supp. 1981) .


not "permit those who exceed 6 months duration, who are in
fact permanent employees, and who thus are eligible for public
employee status per 26 M.R.S.A.  962(6)(F), to remain outside
of an otherwise wall-to-wall unit."  Therefore, the Board ordered
that "temporary' and 'seasonal' employees who are in fact hired
on a permanent basis must henceforth be considered part of the
unit when they exceed six months of employment as either 'laborers'
or as whatever other existing job classification is most appro-
priate."  This decision was not appealed.

     The city received the Board's decision on the unit clarifica-
tion petition on October 19, 1979.  As a result of the Board's
decision, the city personnel director called a meeting of all
the seasonal employees on October 26, 1979, and informed them
that they were terminated as of that date.  The union brought
a grievance against the city, but the arbitrators determined
that they had no jurisdiction over this particular controversy.
The union therefore filed a prohibited practices complaint with
the MLRB on April 25, 1980, alleging that the city and its per-
sonnel director, John Perry, had unlawfully discharged certain
employees, failed to provide the employees with the rights and
benefits to which they were entitled under the collective bar-
gaining agreement, and otherwise committed prohibited acts.
Hearings were held before the MLRB on June 20, 1980, and July
3, 1980, in Bangor.  The Board was warranted in finding
the following facts.

     On October 19, 1979, Randy Henderson, a seasonal laborer
who had been employed for more than six months, was told that
he had been fired.  He testified at the hearing that when he
went to discuss his termination with the Personnel Director,
"He just had a list of names from a piece of paper, and he said
that--something about the union's got a thing out that after
six months if there is no permanent position you just can't
stay here."  When Henderson reapplied for his job in March
1980, and asked Perry whether the labor dispute would have
any effect on whether he would be hired, Perry responded that
"it didn't look good."  Henderson then asked his former work
supervisor whether there would be a job for him.  After check-
ing with management, the supervisor told Henderson that only
new employees could be hired.  At least six people subsequently
were hired in the job category for which Henderson applied.
The Board found that the refusal to rehire Henderson was "be-
cause of the City's desire to keep Henderson out of the unit
and its general antiunion animus,"[fn]3 which rendered the city's
action violative of 26 M.R.S.A.  964(1)(A) and (B).

     One week after Henderson was discharged, the meeting
between the personnel director and the seasonal employees
occurred.  Perry told the workers that "because of the decision

3.  The Union had also alleged that Henderson was unlawfully
discharged.  This allegation was determined by the Board to
be time-barred under 26 M.R.S.A.  968(5)(B).  Neither of
the cross-appellants has challenged this ruling.


by the Labor Board we are now out of the year round temporary
or seasonal work."  When one of the employees asked him what
would have happened if the union had not filed the unit clari-
fication petition, Perry responded "if the Union hadn't filed
the unit determination, you would probably still be here.  We
would be running as we would before."  Perry testified at the
hearing that he understood the Board's decision to mean that
anyone who had been employed by the City for six months after
the decision was rendered would become a permanent employee.
The Board found that four of those fired at the meeting had
been permanent employees on October 26, 1979, and were thus
entitled to be members of the bargaining unit.[fn]4  The Board
determined that the discharges were motivated solely by the
employees' efforts to be included in the unit, and were there-
fore unlawful.

     Perry contended that he fired all the seasonal people be-
cause the city had no "budgeted permanent positions available."
However, since the firing, two permanent positions had opened;
one was filled by an employee who had been fired.  Perry had

4.  These employees worked during the following periods of
time:  Jeffrey Bragg: hired 4/19/77, fired 10/26/79; Emery
Strout:  hired 6/12/78, fired 10/26/79; Lawrence Prescott:
hired 11/14/78, laid off 3/23/79, resumed work 5/l/79, fired
10/26/79; Allen Standley: hired 2/1/79, laid off 3/23/79,
resumed work 5/1/79, fired 10/26/79.  The Board found that
they had been permanently hired on these dates:  Bragg--4/19/77;
Strout--6/12/78; Prescott--5/1/79; Standley--5/1/79.


also re-hired two of the discharged employees, on advice of
counsel, as permanent employees.  A new category of jobs,
"on-call", which was apparently similar to the seasonal posi-
tions, was created.  Twenty people were hired for the winter of
1979-80 as on-call employees.  None of the people hired as
on-call employees were paid union wages or benefits.  At least
twelve more seasonal laborers were hired in the spring of

     Based on these facts, the Board found that the city had
violated 26 M.R.S.A.  964(1)(A) and (B) by 1. discharging
solely because of their protected activity four employees
who were members of the unit as of October 26, 1979; 2. fail-
ing to accord the four employees all the rights, benefits,
and working conditions which other members of the unit were
receiving; and 3. refusing to rehire Henderson.  The Board also
found that the city had failed to notify and bargain with the
union before discharging the employees, as is required by
26 M.R.S.A.  964(1)(E).[fn]5  The Board held that the city was

5.  Section 964 reads in pertinent part:
      964.  Prohibited acts of public employers, public
               employees and public employee organizations.
        1.  Public employer prohibitions.  Public employers,
     their representatives and their agents are prohibited
            A.  Interfering with, restraining or coercing em-
            ployees in the exercise of the rights guaranteed
            in section 963;
            B.  Encouraging or discouraging membership in any
            employee organization by discrimination in regard
            to hire or tenure of employment or any term or
            condition of employment;
            . . .
            E.  Refusing to bargain collectively with the
            bargaining agent of its employees . . . .


obligated to bargain over the effects of the discharge
(i.e., severance pay, vacation pay, insurance, re-call, etc.).
Back pay and reinstatement, among other things, were ordered
to remedy the employees' injuries.

     The city appealed to the Superior Court from the Board's
order, alleging numerous errors.  The Superior Court sub-
stantially affirmed the Board's findings of violations of 26
M.R.S.A.  964(1)(A), (B), and (E).  However, the court
found that the Board had improperly ordered that back pay
and other benefits for the aggrieved employees were to be
computed "according to each employees' true date of permanent
hire," since the court had determined that the city had not
acted improperly in failing to accord the employees full
benefits as of their original date of hire.  The court held
that the city had reasonably interpreted the unit determination
decision as not requiring Payment of benefits for the period prior
to the date the decision was rendered.  The Board's order
was therefore reversed with respect to one of the findings
of a violation of section 964(1)(A) and (B) and was modified
to require that back pay and other benefits for all five
employees be computed from October 19, 1979, the day the
city was notified of the Board's decision.

     On appeal to this Court, the city has alleged as error
1) the application by the Superior Court of the "in part"


test for determining lawfulness of a discharge, 2) the
court's conclusion that the city was in fact obligated
to notify and bargain with the union concerning the effects
of the discharge, and 3) the court's finding that the city
did not suffer prejudice as a result of Gary Thorne's parti-
cipation on the MLRB as an alternate chairperson at the same
time that he represented the Teamster's Union in Baker Bus Co.
v. Maine Labor Relations Board, Me., 428 A.2d 55 (1981).  The
union and the Board challenge the court's modification of the
Board's remedial order.

                         I. Unlawful Discharge

     The Superior Court, in determining whether substantial
evidence existed in the record to support the Board's decision,
applied what is loosely termed the "in part" test.  Under
this test, the discharges in this case were held unlawful
because they were motivated at least in part by the unit
clarification decision.  The city contends that the dis-
charges were unlawful only if the Board could have found
that the discharge would not have occurred in the absence
of the protected activity.

     We review the decision of the Board rather than the
Superior Court, where the court did not receive any evidence
other than what was presented to the Board.  Driscoll v.
Gheewalla, Me., 441 A.2d 1023 (1982).  Therefore, on appeal


this court is limited to reviewing for clear error the
Board's finding "that the discharges were entirely motivated
by the employee's efforts to be included in the bargaining
unit."  See 26 M.R.S.A.  968(5)(F)(1981); Baker Bus ServIce
v. Keith, Me., 428 A.2d 55 (1981).  Since we find that there
exists substantial evidence in the record to support this
finding, we need not address plaintiff's concern with the
Superior Court's application of the "in part" test.  Baker
Bus Service v. Keith, Me., 428 A.2d 55, 56 (1982) (Court
had no occasion to choose between the"in part" and "dominant
motive" tests where the Board's finding that interference with
union activity was "significant reason" for discharge was
not clearly erroneous.)

     The only reasonable conclusion which the Board could
have drawn from this record was that the city's motive for
firing the seasonal workers was to avoid having additional
permanent employees on the payroll who would have to be paid
union wages and benefits.  The Personnel Director himself said
that if the union (and some city employees) had not taken ac-
tion the laborers would not have lost their jobs.  The city's
conduct seems to us to constitute the most egregious form of
unlawful labor practice sought to be prevented by the Maine
Municipal Public Labor Relations Law:  discharge because of


the employees' attempts to obtain the benefits of membership
in the labor organization.  The Board was unquestionably
justified in finding that the city violated section 964(1)(A)
and (B) by discharging these employees.  See, e.g., Century
Printing Co., 242 N.L.R.B. 659 (1979), Flasco Mfg. Co.,
162 N.L.R.B. 611 (1967).  We find no evidence in the record
to support the employer's belated claim that "business neces-
sity" was the motive for the discharge.  In fact, there is
evidence indicating that some permanent positions were avail-
able and that funds existed to hire other employees to do
the work which these employees had been performing.

                    II. Refusal to Rehire Henderson

     Randy Henderson had been employed by the city for more
than six consecutive months at the time he was fired (October
19, 1979).  He testified at the hearing that when he sought
another position with the city, Perry told him that "it
doesn't look good because of the labor dispute."  Several
days later Henderson's former foreman told him that "he
couldn't hire me back at all.  They have to have a new crew."
At least six new workers were hired into Henderson's former
workgroup between April 21, 1980, and May 16, 1980.

     The Board found that by failing to rehire Henderson the
city interfered with, restrained, or coerced him in the ex-


ercise of his rights (26 M.R.S.A.  964(1)(A)) and dis-
couraged membership in the union by discriminating against
him (26 M.R.S.A.  964(l)(B)).  The Board determined that
Henderson was not rehired because the city did not want him
to become part of the unit.  Substantial evidence exists
to support this finding on which the Board's decision that
the city committed a prohibited practice is based.  We find
no reversible error.

                      III.  Failure to Bargain

     The Superior Court determined that the Board's finding
of a violation of the duty to notify and bargain with the
union was not clearly erroneous.  We agree with the Superior
Court that the Board did not err in concluding that the city
had violated section 964(1)(E) and adopt its accurate analysis
of this issue:

             The Board found that the City committed a dis-
        tinct violation of the Public Employees Act when it
        failed to notify the Union of and bargain with it
        over the effect of the discharges of Prescott,
        Strout and Bragg.  At issue is section 964(1)(E)
        which prohibits an employer from refusing to bargain
        collectively pursuant to 965, which, in turn,
        creates an obligation to "confer and negotiate in
        good faith with respect to wages, hours, [and) working
        conditions . . . ."  The effects of a discharge have
        been held to be a subject of mandatory bargaining.
        N.L.R.B. v. Allis-Chalmers Corp., 601 F.2d 870, 875
        (5th Cir. 1979); N.L.R.B. v. W. R. Grace & Co., Con-
        struction Products Div., 571 F.2d 279, 283 (5th Cir.


        1978); N.L.R.B. v. Transmarine Navigation Corp.,
        380 F.2d 933, (9th Cir. 1967).  Concomitant with the
        characterization of a subject as within the duty
        to negotiate is a duty of the employer to notify
        the union to provide it with an opportunity to bargain
        over it.  Id.  The failure to do so violates 964(1)(E).
        In the case of a discharged employee, the subjects
        of bargaining may include severance pay, vacation pay,
        seniority, and pensions.  Transmarine, supra.  Here,
        the City provided no notice to the Union of its de-
        cision to discharge the four employees covered by
        the guaranties of the Public Employees Act. Its
        unilateral action taken before the Union had an op-
        portunity to negotiate these subjects thus constituted
        a breach of the Act's provisions.

             Article 33(2) of the collective bargaining agree-
        ment provides that the City and the Union each
        voluntarily and unqualifiedly waives the right,
        and each agrees that the other shall not be obligated
        to negotiate with respect to any subject or matter
        referred to or covered in this agreement . . . ."
        The contract in article 26(1) also provides that "the
        City shall have the exclusive right to . . . discharge
        or suspend for just cause . . . [and] to reduce or ex-
        pand the working forces . . . ."  Thus, while article
        33(2) effects a waiver by the Union of its right to
        negotiate over a discharge for just cause itself and
        over changes in the size of the group of employees,
        it does not waive its right to negotiate over the
        effects of that discharge.  The issues of discharge
        and its effects are distinct, and the waiver of one
        is not equivalent to the waiver of the other.  The
        distinctiveness of these two issues is made clear in
        Transmarine, supra, which held that although the
        managerial decision to terminate its business and re-
        invest its capital elsewhere is not a subject of col-
        lective bargaining, the effects of the decision is
        mandatory to the extent that it implicates wages,
        hours, and other conditions of employment.  Because
        the decision to displace employees and the effects
        of their displacement are separate and independent
        issues, and further because waiver clauses in col-
        lective bargaining agreements are read constrictively,
        N.L.R.B. v. Auto Crane Co., 536 F.2d 310, 312 (10th
        Cir. 1976), see, e.g., State v. Maine Labor Relations
        Board, supra, 413 A.2d at 515, the Board did not err
        in concluding that the waiver provision in article 33(2)
        of the collective bargaining agreement did not encompass


        the effects of discharge.  As the effects of a dis-
        charge is a subject of mandatory bargaining and be-
        cause it was not waived here, the City violated
         964(1)(E) by discharging the four employees without
        first notifying the Union to provide it with an
        opportunity to request negotiations over its effects.

We find that the Board committed no reversible error in deciding that the
city violated section 964(1)(E) and so we deny plaintiff's
appeal on this issue.

                IV. Failure to Treat Employees as members
                    of the Unit

     The Board found that as a result of the unit clarification
decision the city was obligated to treat the four employees who
were fired on October 26, 1979, as permanent employees.  In-
stead of doing so, the city fired them.  The Board further
found that, when two of the four employees were rehired they
were not afforded the benefits and wages to which they were
entitled as members of the unit.  Each received the salary
of a new permanent employee and was placed at the bottom of
the seniority list, contrary to the provisions of the col-
lective bargaining agreement which detailed the appropriate
pay scale for employees based on duration of employment and
subject to a performance rating and a recommendation from the
Operations Maintenance Director.  According to the Board,
this action was a violation of section 964(1)(A) and (B)
because the unit clarification decision required the city
to provide retroactive benefits to the four employees since
they had been employed for more than six months.


     The Superior Court, in reviewing this decision of the
Board, determined that the unit clarification decision was
not nearly as expansive as the Board had concluded in the
prohibited practice case.  The court held that the decision
did not require the city to award back pay and benefits
based on the date of original hire and that the city there-
fore had not committed a prohibited practice by failing to
treat the employees as if they had been members of the unit
prior to the date the decision was received by the city,
October 19, 1979.

     The appellees, the AFSCME and the MLRB, have cross-ap-
pealed from this part of the Superior Court decision, claim-
ing that the court misconstrued the Board's decision.  The
appellees further argue that since in a unit clarification
case the Board has no power to order back pay, reinstatement,
or retroactive benefits, the court's reliance on the absence
of such a remedial order as authority for finding that there
was no violation was entirely unfounded.

     We disagree with the Superior Court's analysis of the
Board's decision on this section 964(1)(A) and (B) violation.
Even assuming that the court's interpretation of the unit
clarification decision was correct, the Board's finding of
a violation still stands since the city was obligated to
treat these employees as members of the unit as of October 19,
1979 and failed to do so.  Whether the city should have pro-


vided the employees with benefits as of their original date
of permanent hire or as of October 19, 1979, is irrelevant
in deciding whether a violation occurred since under either
scenario the city should have provided all four employees
with union benefits.  We find that the Superior Court erred
in reversing the Board's finding that the city had violated
section 964(1)(A) and (B) by failing to treat the seasonal
laborers who had been employed for more than six months as
members of the bargaining unit.


     As a remedy for the city's several violations of the
state labor laws, the Board ordered, among other things,
that back pay and benefits be provided to the five employees
in question in amounts computed as of their true date of
permanent hire.[fn]6  The city challenged this order, and the
Superior Court modified it so that back pay and benefits
would be calculated only for the period after October 19,
1979.  The court's order reflected its determination that
the city had not violated 26 M.R.S.A.  964(1)(A) and (B)
because the unit clarification decision did not require
the city to award back pay and benefits based on the date of
original hire.  Since we have concluded that the court

6.  The date for each employee was determined to be:
Henderson:  April 9, 1979; Bragg--April 19, 1979; Strout--
June 12, 1977; Prescott and Standley--May 1, 1979.


erred in finding that there had been no violation, the court's
modification of the order remedying the effects of such a vio-
lation can no longer stand.

     The Board is statutorily empowered to "take such affirmative
action, including reinstatement of employees with or without
back pay, as will effectuate the policies of this chapter" once
it has determined that a party has engaged in a prohibited
practice.  26 M.R.S.A.  968(5)(C).  "A properly designed re-
medial order seeks 'a restoration of the situation, as nearly
as possible, to that which would have obtained' but for the
unfair labor practice."  Caribou School Dep't v. Caribou
Teachers Ass'n, Me., 402 A.2d 1279, 1284 (1979), quoting
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).  The
Board has broad discretion in fashioning appropriate relief
for the employer's prohibited practices, and this Court will
not "interfere with the remedy chosen by the Board where the
reasons articulated for it in the Board's decision clearly show
it to be within the statutory powers of the Board."  M.S.A.D.
No. 43 Teachers' Ass'n v. M.S.A.D. No. 43 Bd. of Directors,
Me., 432 A.2d 395, 398 (1981).

     The Board ruled that the city was required to "make these
emplovees . . . whole for any loss of earnings and other
benefits caused by the city's unlawful actions."  According
to the Board, this order was necessary to effectuate the poli-
cies of the labor laws.  In ordering that back pay be com-
puted as if each worker had received favorable performance


ratings and the required recommendation from the Operation
Maintenance Director, the Board reasoned "[b]ecause the city
has not treated these employees fairly in the past, we believe
it would not be fair or proper to require that the amount of
back pay due be dependent upon a performance rating and re-
commendation by management."

     We find that the Board has not abused its discretion in
ordering that back pay and benefits be computed as of each
employee's true date of permanent hire. The Board con-
sidered it necessary, in order to make each employee whole, to
compensate the workers for the months or years each spent
working as a permanent, full-time employee without receiving
the benefits due to a permanent, full-time employee.  We cannot
say that the Board abused its discretion nor that it exceeded
the scope of its statutory authority in fashioning the remedies
it ordered in this case.  We therefore reverse the Superior
Court judgment modifying part of the remedial order of the

                         VI. Board Prejudice

     Gary Thorne served in this prohibited practices case
as the alternate chairperson and public representative to
the Board.  Subsequent to the issuance of the Board's de-
cision, the city discovered that Thorne had appeared as counsel
for the Teamsters Union in a case which raised the question
of whether the "in part" test or the "dominant motive" test


should be adopted in Maine.  The union in that case advocated
adherence to the "in part" test, but the city in this case
has argued against application of that rule.  The Superior
Court, after a testimonial hearing, determined that there had
been no prejudice to the city as a result of Thorne's parti-
cipation in the case of Baker Bus Service v. Keith, Me., 428
A.2d 55 (1981).  The city has appealed from this ruling.

     The record establishes that Thorne participated in
Baker Bus by (1) filing an appearance in Superior Court and
(2) allowing his name to be signed to a Law Court brief writ-
ten and researched by out-of-state counsel for the union.
Thorne testified at the hearing that he did not know what
issues were involved in the Baker Bus case, and had no in-
terest in the case at the time he served on the Board in the
instant case.

     The city argues that under M.R.Civ.P. 11, Thorne is charged
with constructive knowledge of the issues in the Brief.  As the
appellees note, Rule 11 applies only to pleadings, so this
argument is incorrect.  Even if it were accurate to charge him
with knowledge, the city has not proven that any prejudice
would have resulted.  The employer also argues, mistakenly,
that this case is similar to Gashgai v. Board of Registration
in Medicine, Me., 390 A.2d 1080 (1978) ("combination (in one


person in one case] of investigator, prosecutor and sitting
members of the adjudicatory panel, even if ostensibly a non-
participating member, creates an intolerably high risk of
unfairness."  Id. at 1082).  This case is not factually
similar to Gashgai, since Thorne here participated only as a
member of the adjudicatory panel.

     The rule in Maine is that pecuniary interest or relation-
ship is a ground for disqualifying a judge.  Hughes v. Black,
156 Me. 69, 160 A.2d 113 (1960).  The interest must be direct
and capable of demonstration rather than speculative.  Id.
The city introduced no evidence which would support a finding
of prejudice under this standard.  Further, the fact that the
Board found that the discharges were "entirely motivated" by
antiunion animus renders irrelevant the city's claim that it
was prejudiced by Thorne's alleged advocacy of the "in part"
test in this case.  We affirm the Superior Court decision on
this issue.

     We affirm the order of the Superior Court in so far as
it affirmed the decision of the MLRB.  We reverse the court's
finding that the city did not violate 26 M.R.S.A.  964(1)(A)
and (B) by failing to treat the four employees as members of
the unit and reinstate the Board's order on this issue.  We
also conclude that the court's modification of the Board's re-


medial order is erroneous, and therefore reinstate the
Board's order.

The entry is:

                  Appeal denied.
                  Cross-appeal sustained.
                  Order of Superior Court affirmed in so
                  far as it affirms the decision of the
                  Maine Labor Relations Board, and reversed
                  in so far as it modifies or reverses the
                  decision of the Maine Labor Relations

                  Remanded to Superior Court for entry of
                  judgment affirming the decision of the
                  Maine Labor Relations Board.


All concurring.