AFSCME v. City of Bangor, No. 80-50 (Sept. 22, 1980), reversed, 
City of Bangor v. AFSCME, CV-80-563,(June 11, 1981).

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                         Case No. 80-50

EMPLOYEES, AFL-CIO,               )
                    Complainant,  )
             v.                   )                     DECISION AND ORDER
CITY OF BANGOR,                   )
                    Respondent.   )

     Council #74, American Federation of State, County and Municipal
Employees, AFL-CIO, (the Union) filed this prohibited practice complaint on
May 20, 1980, alleging that the City of Bangor refused to meet to negotiate
the subject of union security.  The City filed its answer on June 4, 1980,
claiming that it was not required by law to negotiate because of the pendency
of a court appeal of a grievance arbitration order.  A pre-hearing conference
was held on June 27, 1980, by Alternate Chairman Gary F. Thorne, who issued a
Pre-Hearing Conference Memorandum and Order the same day, the contents of
which are incorporated herein by reference.

     The parties agreed to waive a hearing and to submit the matter on briefs,
having stipulated to all the facts.  The Maine Labor Relations Board (Board),
Chairman Edward H. Keith presiding, with Employer Representative Don R.
Ziegenbein and Alternate Employee Representative Harold S. Noddin, after
reviewing the matter, directed and received additional briefs on specific
issues.  AFSCME was represented by H. Ross Ferrell, Jr., Field Representative;
the City, by Malcolm E. Morrell, Jr., Esq., and Thomas C. Johnston, Esq.


     Jurisdiction of the Board to hear and decide this case lies in Section
968(5) of the Municipal Public Employees Labor Relations Act (the Municipal
Act), 26 M.R.S.A.  968(5).

                               FINDINGS OF FACT

     1.  The union is the bargaining agent for employees of the Operations
         and Maintenance Division in the City's Department of Public
         Services.  26 M.R.S.A.  962(2);  968(5)(B).  The City is the
         public employer. 26 M.R.S.A.  962(7);  968(5).  The two
         parties have a collective bargaining agreement for the period:
         March 2, 1979, to December 31, 1980 (the Agreement).

     2.  Article 3(2) of the Agreement states:

            "If during the term of the agreement or any extension
             thereof, 26 M.R.S.A. Sec. 964(1)(B) is construed by
             the Maine Supreme Judicial Court or amended by the
             Maine State Legislature to allow for union security


             provisions in public employee collective bargaining
             agreements, the issue of inclusion of union security
             provisions in this Agreement will be open for nego-
             tiation by either party hereto."

     3.  On April 30, 1979, The Supreme Judicial Court of Maine issued an
         "Opinion of the Justices," 401 A.2d 135 (Me. 1979), which answered
         questions propounded by the House of Representatives including
         whether a "fair share" type of union security provision violated
         provisions of the State Employees Labor Relations Act, 26 M.R.S.A.
          979, et seq. (the State Act).  The Justices determined that it
         did not violate the State Act.

     4.  On May 31, 1979, the Union requested the opening of negotiations
         pursuant to the contingency expressed in Article 3(2).  After the
         City refused this request, the Union filed a grievance under the
         Agreement which culminated in two hearings before a tripartite
         panel of arbitrators; one on November 30, 1979, after which the
         arbitrators determined that the matter was arbitrable; and a
         second on February 7, 1980, on the merits.  On February 25, 1980,
         the arbitrators issued the award, concluding:

            "The Board of Arbitrators unanimously agrees that the
             City of Bangor is in violation of Article 3, Section
             2 of the [Agreement].

               The remedy is to open negotiations as provided for
             in Article 3, Section 2 of the [Agreement]."

     5.  The City moved to vacate this award with papers dated March 18, 1980,
         arguing that the arbitrators have exceeded their power.  In a letter
         dated March 19, 1980, from Ferrell to City Personnel Director John R.
         Perry, he stated:

            "In accordance with the requirements of the above-
             named decision [of the arbitration board], we are
             requesting that you commence negotiations as required
             by that decision.  This request is also in accordance
             with Title 26, se. 965, 1., B.  Therefore, we are
             requesting that you meet with us to negotiate within
             ten days."

         The City responded in a letter dated March 21, 1980, that it declined
         to meet for the purpose of collective bargaining at this time because
         the arbitration award was not yet final, and because there was no
         other obligation to bargain during the term of the Agreement. (The
         Agreement does contain a "zipper" clause which would apply to other

     6.  The Union filed a motion to confirm the arbitration award on May 1,
         1980, and filed this complaint on May 20, 1980.

     7.  The City's motion to vacate the award was denied and the Union's
         motion to confirm was granted by the Superior Court on June 6,
         1980.  The City filed a notice of appeal to the Law Court dated
         June 16, 1980.

     8.  The Board takes notice of the fact that fact-finding on this
         subject has been invoked.

     9.  The "fair share" type of union security clause provides that
         employees who do not become members of the Union must pay, as a
         condition of employment, a proportionate share of the Union's
         cost of bargaining for and representing all members of the
         bargaining unit.



     The Union argues that the contingency expressed in Article 3(2) of the
Agreement has taken place as found by the arbitration award and that the City
has violated the duty to bargain of Section 965 of the Act, as enforced by
Section 964(1)(E), by refusing to meet to negotiate the subject of union
security when requested by a "ten-day" letter.  See 26 M.R.S.A.  965(1)(B).
The City contends that the narrow issue before the Board is whether it is a
prohibited practice to refuse to comply with a grievance arbitration award
under appeal.

     We do not accept the City's framing of the issue.  It overlooks the duty
to bargain which arises separately under the Municipal Act by way of the
Union's ten-day letter.  Although the Union asked that the City comply with
the arbitration award, it did not stop there.  It also invoked the legal duty
to bargain:  "This request is also in accordance with Title 26, Se. 965, I.,
B."  (Finding of Fact Paragraph 5) (emphasis added).

     Thus, the City's contract to bargain created only a supplementary duty
that did not replace the statutory duty to bargain.  Similarly, while a breach
of contract (according to the arbitrators) may be enforced through arbitra-
tion, it is possible to simultaneously commit a statutory breach, which is
enforceable through this Board.  Accordingly we asked the parties to brief
the key issues to a statutory breach:  (1) whether the contingency expressed
in Article 3(2) has taken place, and (2) whether the subject of union security
is a mandatory subject of bargaining.


     The first issue was decided by the arbitration panel in the course of
deciding if the City had breached the contract.  In most circumstances, when
a prohibited practice complaint is filed which involves a dispute that has
already been decided by an arbitration panel, we would simply review the
decision of the arbitrators in accordance with the standards set forth in
Spielberg Mfg. Co., 112 NLRB 1080, 36 LRRM 1152 (1955) and progeny.  This is
not the type of case appropriate for our deferral for a number of reasons.
Primarily, this dispute involves an area which is peculiarly a matter of the
interpretation of the Municipal Act, that is, whether or not there is a waiver
of the right to bargain collectively.  More specifically, has the conditioned
waiver contained in Article 3(2) expired, thereby calling into force the duty
to bargain.

     Additionally, we are also not convinced that the dispute over the duty to
bargain this subject will be settled even if the Union ultimately prevails in
enforcing the arbitration award. Accordingly, we will decide the issues below.

     If the contingency in Article 3(2) occurred, then the waiver by the Union
of the right to bargain a union security provision during the term of the
Agreement was no longer operative.  The duty to bargain under Section 964(1)
(E) of the Municipal Act would then have been properly invoked by the letter
of March 19th, provided that union security is a mandatory subject of bargain-
ing.  We conclude that the contingency has taken place and therefore the
waiver was no longer operative.


     One of the things that the Justices specifically determined in the
Opinion of the Justices, 401 A.2d 135 (Me. 1979), was whether the "fair share"
type of union security provision was prohibited by Section 979-C of the State
Act, 26 M.R.S.A.  979-C.  In light of the duty of the bargaining agent to
represent all employees in the bargaining unit without regard to membership
in the organization certified as bargaining agent, 26 M.R.S.A.  979-F(2)(E),
the Justices held that the fair share provision did not violate Section 979-B
and 979-C.  The corresponding sections of the Municipal Act, Sections 963,
964,[fn]1 and 967(2)(para. 5), are, for all intents and purposes, identical
to these sections of the State Act.  Specifically, Section 964(1)(B) is
identical to Section 979-C(1)(B).  We are, therefore, satisfied that the Court
has construed the language contained in Section 964(i)(B) as allowing for the
inclusion of a fair share type of union security provision in a collective
bargaining agreement.  This is what we believe was bargained for in Article
3(2).  This is the most sensible interpretation and application of the

     Moreover, we find a waiver of the right to bargain only where it is
unmistakably clear.  See, e.g., Elizabethtown Water Company, 234 NLRB No. 68,
97 LRRM 1210 (1978).  If we were in doubt, we would thus be inclined to say
that this language does not clearly continue to waive the right to bargain.

     The City argues that the State and Municipal Acts have different sections
describing the scope of bargaining, Section 979-D(l)(E) and Section 9650)(C),
and that this raises the possibility of a different construction of Section
964(1)(B) as opposed to Section 979-C(1)(B).  While this difference may vary
the range of subjects negotiable under each Act, we reject the argument as to
what the two Acts prohibit.  The difference simply does not bear on whether
the sections at issue, Section 979-C(1)(B) and Section 964(1)(B), prohibit
the inclusion in a collective bargaining agreement of a particular provision.
Whether the provision is a negotiable subject within the scope of bargaining
language of either Act is an entirely different question.  See part II, infra.

     The City also contends that the Opinion of the Justices is not a decision
of precedential value.  While this may be true, both an opinion and a decision
can be said to construe statutory language; this distinction is therefore
without significance for the issue here.

     Finally, the City points to Section 10270) of the University of Maine
Labor Relations Act, 26 M.R.S.A.  1027(3), as evidence of the fact that the
State, Municipal, and University Acts are different enough that a construction
of one Act may not necessarily be the same for the other two.  Section 1027(3)
provides that:  "Nothing in this chapter shall be interpreted to prohibit the
negotiation of union security, excepting closed shop."  This section obviously
permits a union shop and an agency shop which requires fees equivalent to
full union dues.  In contrast, the Municipal and State Acts prohibit such
because of Churchill v. S.A.D. #49 Teachers Association, 380 A.2d 186 (Me.
1977).  However, since this provision is

  1.  Sections 979-C(1)(A), (B) and (2)(A) [or Sections 964(1)(A), (B) and
2(A)] are the significant subsections.  See, Churchill v. S.A.D. #49 Teachers
Association, 380 A.2d 186, 188, 191-92 (Me. 1977).  See also, Brunswick School
Board v. Brunswick Teachers Association, PELRB No. 75-19 (Jan. 16, 1976),
appeal docketed Kennebec Super. Court (Feb. 12, 1976), at page 9 (relying on
Section 964(1)(B) only).


contained in neither the State nor the Municipal Act it is of no import to the
issues here.


     Having determined that a fair share type of union security provision is
permitted under Section 964, we need only determine whether it is a mandatory
subject of bargaining.  Under the State Act the answer is clear:  it is a
mandatory subject.  The Opinion of the Justices determined the issue by
holding that the scope of Section 979-D(1)(E)(1) authorizes the fair share
provision as a subject appropriate for collective bargaining which is not
prohibited by public law.  401 A.2d at 147.

     The conclusion is the same under Section 965(1)(C) of the Municipal Act.
It is inherent by definition in a fair share union security provision, as with
other types of union security provisions, that something must be done by the
employee as a condition of employment.  Thus, it is clearly a "working condi-
tion" and therefore a mandatory subject of bargaining.  26 M.R.S.A.  965(1)
(C).  As the union points out, the federal courts have also unequivocally
decided that union security fits within the parallel language in the National
Labor Relations Act, Section 8(d), 29 U.S.C.  158(d) ("wages, hours and
other terms and conditions of employment").  E.g., Caroline Farms Division of
Textron, Inc. v. N.L.R.B., 401 F.2d 205, 210 (7th Cir. 1968); cf., Easton
Teachers Association v. Easton School Committee, MLRB No. 79-14 (Mar. 3,
1979).  As the opinion of the Justices indicated, it is fair that each
employee within the bargaining unit share the burden of defraying the
bargaining agent's costs of representation and collective bargaining.  401
A.2d at 147.  This notion of fairness would be meaningless if a fair share
type of union security provision were only a permissive subject of bargaining
and not a mandatory subject.

      In any event, as the City properly concedes, (Memo of Law, 9/2/80, p. 7),
even if union security were only a permissive subject of bargaining, the
parties have agreed to allow such to be negotiated under Article 3(2) of the
Agreement.  It would probably violate the duty to collectively bargain if a
party explicitly agreed in writing to negotiate a permissive subject but then
refused to do so.

     In conclusion, we have determined that the conditional waiver of the
right to collectively bargain over the subject of union security during the
term of the Agreement was no longer operative at the time of the Union's ten-
day letter demand for bargaining.  The City's refusal to meet for that purpose
therefore violated 26 M.R.S.A.  964(1)(E) through  965(1)(B) and (C).
We will grant the requested relief and issue a cease and desist order.  We
will also direct the City to meet for collective bargaining purposes with the
Union within ten days of receipt of this order.  This meeting should take
place so as not to delay the dispute resolution process, however.


      Pursuant to Section 968(5) of the Municipal Public Employees Labor
Relations Act (Act), the Maine Labor Relations Board hereby orders that the
City of Bangor, its officers, agents, and successors, shall:


     1.  Cease and desist from refusing to bargain collectively
         with Council #74, American Federation of State, County
         and Municipal Employees, AFL-CIO, (the Union) the bar-
         gaining agent of its employees in the operations and
         Maintenance Division in the City's Department of Public

           (a) by refusing to meet within ten days after
               receipt of a written notice from the Union
               requesting such, and

           (b) by refusing to negotiate with respect to
               a union security provision.

     2.  Take the following affirmative action which the Board finds
         will effectuate the policies of the Act:

           (a) Meet with the Union within ten days from
               receipt of this Order for the purposes of
               collectively bargaining the subject of 
               union security (not to delay the progress
               of the dispute resolution process); and

           (b) Notify the Executive Director in writing,
               within 20 days from the date of this Order,
               what steps have been taken to comply herewith.

Dated at Augusta, Maine this 22d day of September, 1980.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Don R. Ziegenbein
                                       Employer Representative

                                       Harold S. Noddin
                                       Alternate Employee Representative