Thomas Blake and South Portland Professional Firefighters Assoc. v. 
City of South Portland, No. 94-12, Interim Order, Jan. 27, 1994,
Decision and Order, June 2, 1994

STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 94-12
                                      Issued:  January 27, 1994

___________________________________
                                   )
THOMAS BLAKE and SOUTH PORTLAND    )
PROFESSIONAL FIREFIGHTERS          )
ASSOCIATION,                       )
                                   )
                    Complainants,  )
                                   )       INTERIM ORDER
               v.                  )
                                   )
CITY OF SOUTH PORTLAND,            )
                                   )
                    Respondent.    )
___________________________________)

     
     On September 30, 1993, Mr. Thomas Blake and the South
Portland Professional Firefighters Association ("Association")
filed a prohibited practice complaint with the Maine Labor
Relations Board ("Board") alleging that upon contract expiration,
the City of South Portland ("City") violated section 964(1)(A)
and (E) of the Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A.  964(1)(A) and (E) (1988), by unilater-
ally changing its overtime policy with respect to employees in
the firefighters' unit represented by the Association (hereafter,
"non-supervisory unit").  Upon receipt of the City's answer to
the complaint, a prehearing conference and evidentiary hearing
were scheduled.

     On December 10, 1993, the Board received a notice of
intention to intervene on behalf of the South Portland Command
Officers' Bargaining Unit, a separate unit of supervisory
employees employed in the South Portland Fire Department.  The 
_____________________
     1The complaint was subsequently amended to correct a
deficiency in the filing. 

                              -1-

notice was treated as a request to intervene, and all parties
were given the opportunity to address this issue at the pre-
hearing conference.  At the close of the conference, and upon a
review of relevant documents and oral argument, the prehearing
officer recommended in her prehearing conference memorandum and
order dated January 3, 1994, that the Board deny the request to
intervene.  The employer and employee representatives met on
January 20, 1994, to consider the recommendation.

                          JURISDICTION
     Thomas Blake is president of the Association and a public
employee, within the meaning of 26 M.R.S.A.  962(6) (Supp.
1993).  The Association is the bargaining agent, within the
meaning of 26 M.R.S.A.  962(2) (1988), for permanent, full-time
firefighters of the South Portland Fire Department.  The City is
the public employer, within the meaning of 26 M.R.S.A.  962(7)
(Supp. 1993), of the employees in the firefighters' unit.  The
jurisdiction of the Board to hear this case and to render a
decision and order lies in 26 M.R.S.A.  968(5)(A)-(C) (1988).  
  
                           DISCUSSION
     The City has negotiated an overtime policy with the
supervisory unit that the City acknowledges affects the
availability of overtime for members of the non-supervisory unit. 
The supervisory unit wishes to intervene in this case in the
interests of what it calls economy and efficiency:  A decision by
the Board that is favorable to the non-supervisory unit could
adversely affect the economic interests of supervisory unit
members, in which case the supervisory unit might find it
necessary to file a prohibited practices complaint against the
City.    

     Section 968(5)(B) of the MPELRL and Board Rule 4.08(A) 
provide that the Board may, in its discretion, allow inter-
vention, and the Board has done so on occasion.  In Prentiss v.

                               -2-

Sandy River Education Association, No. 75-15 (Me.L.R.B. May 8,
1975), an employee had brought a complaint against the bargaining
agent regarding the right of bargaining unit members who were not
union members to discuss bargaining proposals with the bargaining
agent and/or to vote on contract ratification.  The employer was
permitted to intervene for the limited purpose of submitting
briefs on legal issues.  In SAD #5 Federation of Teachers v.
Sternberg, No. 81-43, 4 NPER 20-12022 (May 14, 1981), the
complainant, which had previously been decertified as the
bargaining agent, alleged that the employer was improperly
refusing to permit it to use SAD #5 facilities to communicate
with teachers or hold meetings.  The incumbent bargaining agent,
alleging that it had an "exclusive use" agreement with the
employer, was permitted to intervene in the proceedings.  At
issue was whether an "exclusive use" agreement had been made
between the employer and the intervenor, and if so, whether it
was lawful.  In Auburn Firefighters Association, Local 797 v.
City of Auburn, No. 89-01, 11 NPER ME-20003 (Me.L.R.B. Mar. 31,
1989), another employee organization (the Maine Teachers
Association) was permitted to file a brief on the policy question
of whether an employer should be permitted to implement its last
best offer after an impasse in negotiations has been reached.

     In the matter before us, there are no broad policy questions
at stake.  Nor are we faced with a situation where legally
cognizable rights of an intervenor will be affected.  Even if the
intervention request were granted, the Board could not act on the
supervisory unit's fear that the City may renege on the super-
visory unit overtime agreement at some point in the future. 
Section 968(5) of the MPELRL gives the Board the authority only
to address violations of the law that have occurred or are
occurring.  Moreover, in deciding whether the City has failed to
maintain the status quo with respect to the non-supervisory unit,
it is the provisions of the parties' expired contract, as well as
any past practices that have been established in connection with

                               -3-

the availability of overtime to members of that unit, that
together constitute the status quo.  In determining whether the
status quo has been maintained, as a matter of law the Board
cannot be influenced by the fact that the outcome of this case
may affect the economic interests of the supervisory unit (or
even that it may place the City in the position of having to pay
two pipers unless the supervisory unit is willing to revisit its
agreement with the City).  

     In sum, we find that intervention would serve no useful
purpose in this case, but would simply complicate and confuse it
unnecessarily.  The request to intervene will be denied.  

                              ORDER
     On the basis of the foregoing facts and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A.  968(5) (1988 &
Supp. 1993) and the Board's Rules and Procedures, it is hereby
ORDERED:

     That the request of the South Portland Command Officers'
Bargaining Unit to intervene is denied.


Issued at Augusta, Maine, this 27th day of January, 1994.


                              MAINE LABOR RELATIONS BOARD


                              /s/__________________________
                              Kathy M. Hooke
                              Alternate Chair


                              /s/__________________________
                              Howard Reiche, Jr.
                              Employer Representative


                              /s/__________________________
                              George W. Lambertson
                              Employee Representative

                               -4-



STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
				      Case No. 94-12
				      Issued:  June 2, 1994


___________________________________
				   )
THOMAS BLAKE and SOUTH PORTLAND    )
PROFESSIONAL FIREFIGHTERS          )
ASSOCIATION,                       )
				   )
		    Complainants,  )
				   )        DECISION AND ORDER
	       v.                  )
				   )
CITY OF SOUTH PORTLAND,            )
				   )
		    Respondent.    )
___________________________________)

     On September 30, 1993, Mr. Thomas Blake and the South
Portland Professional Firefighters Association ("Association")
filed a prohibited practice complaint with the Maine Labor
Relations Board ("Board") alleging that upon contract expiration,
the City of South Portland ("City") violated section 964(1)(A)
and (E) of the Municipal Public Employees Labor Relations Law
("MPELRL"), 26 M.R.S.A.  964(1)(A) and (E) (1988), by unilater-
ally changing its overtime policy with respect to employees in
the firefighters' unit represented by the Association.  Insuf-
ficiencies in the complaint were corrected by amendment on
October 7, 1993.

     In its answer, the City responded that the overtime in
question is command officers' unit overtime, and therefore is not
a mandatory subject of bargaining for firefighters; and that the
City provided the Association with a reasonable opportunity to
demand negotiations over the change by notifying it of the
intended change on April 21, 1993.  The City also requested that
the Board defer to a pending arbitration.

			       -1-

     On December 10, 1993, the Board received a notice of inten-
tion to intervene from the command officers' unit (the super-
visory unit).  The notice was treated as a request to intervene,
and all parties were given the opportunity to address this issue
at the prehearing conference, which was convened by Alternate
Chair Kathy M. Hooke on December 20, 1993.  The Prehearing
Conference Memorandum and Order denied the request for deferral
and recommended denial of the intervention request.  The Board's
subsequent Interim Order denied the request to intervene.  Both
are incorporated in and made a part of this decision and order.

     An evidentiary hearing on this matter was held on February
17, 1994.  Alternate Chair Hooke chaired the hearing, accompanied
by Employer Representative Howard Reiche, Jr., and Alternate
Employee Representative Gwendolyn Gatcomb.  John W. Chapman,
Esquire, represented the Association, and Mary Kahl, Esquire, and
Roger Kelley represented the City.  The parties were given full
opportunity to examine and cross-examine witnesses, introduce
documentary evidence, and make oral argument.  The parties filed
posthearing briefs on March 28, 1994.  The Board deliberated this
matter on April 12, 1994.

			  JURISDICTION

     Thomas Blake is president of the Association and a public
employee, within the meaning of 26 M.R.S.A.  962(6) (Supp.
1993).  The Association is the bargaining agent, within the
meaning of 26 M.R.S.A.  962(2) (1988), for permanent, full-time
firefighters of the South Portland Fire Department.  The City is
the public employer, within the meaning of 26 M.R.S.A.  962(7)
(Supp. 1993), of the employees in the firefighters' unit.  The
jurisdiction of the Board to hear this case and to render a
decision and order lies in 26 M.R.S.A.  968(5)(A)-(C) (1988).
		       
			       -2-

			 FINDINGS OF FACT

     Upon review of the entire record, the Board finds:
     1.   Before 1988, command officers and firefighters employed
by the South Portland Fire Department were in a single bargaining
unit covered by one collective bargaining agreement.  The 1986-88
agreement contained seven overtime rosters:  a regular overtime
and an emergency overtime roster for command officers; a regular
overtime and an emergency overtime roster for firefighters; a
regular overtime and an emergency overtime roster for dis-
patchers; and an outside overtime roster.  The agreement stated:
"Any member called to fill a manning vacancy shall be called in
proper rotation from a Regular Overtime posted roster that
reflects the vacancy."

     2.   After the single unit was split into two, separate
agreements were negotiated for each.  Since the split, each of
the three agreements covering command officers has contained
three overtime rosters1:  one for regular overtime, one for
emergency overtime and one for outside overtime.  Each agreement
states:  "Any employee called to fill a vacancy created by the
absence of another employee shall be called in proper rotation
from the regular overtime posted roster."  Each of the three
agreements for the firefighters2 has contained five overtime
rosters:  a regular and an emergency roster for firefighters; a
regular and an emergency roster for dispatchers; and an outside
_________________________

     1The first command unit agreement covered the period July 1,
1988 through June 30, 1990; the second covered the period July 1,
1990 through June 30, 1992, and, with the exception of three
articles not relevant here, was extended by agreement of the
parties through June 30, 1993; the current agreement covers the
period July 1, 1993, through June 30, 1994.

     2The 1988-90 agreement; the 1990-92 agreement, which was
subsequently extended through June 30, 1993; and the current
agreement, which was signed on January 12, 1994, and
retroactively covers the period July 1, 1993 through June 30,
1994.

			       -3-

overtime roster.  The current agreement contains an additional
roster, for football game/band competition overtime.  Each
agreement states:  "Any employee called to fill a manning vacancy
shall be called in proper rotation from a Regular Overtime posted
roster that reflects the vacancy."

     3.   The South Portland Fire Department has two fire
stations, one called Central Station and the other called Cash
Corner Station.  The City has established the following normal
manning levels at its stations:  one officer, one dispatcher and
five firefighters (a total of seven) for Central Station, and one
officer and five firefighters (a total of six) for Cash Corner
Station (Chart 1).  Minimum manning is six for Central Station
and five for Cash Corner Station (Chart 2).  In other words, when
a single vacancy occurs at either station, the vacancy is not
filled.  (If the single vacancy is an officer vacancy, the most
senior firefighter becomes the "officer in charge" and is paid
accordingly.)  If a second vacancy at the same station occurs,
a firefighter is "swung" from the other station so that each
station has a single vacancy and no overtime hiring is necessary
(Chart 3).

     4.   When three vacancies occur, one vacancy must be filled
in order to maintain minimum manning at each station.  If there
is an officer and a firefighter vacancy at one station, the
officer vacancy is filled (Chart 4).  If all three vacancies
occur at one station, a firefighter is swung from the other
station to avoid having to fill two vacancies (Chart 5).

     5.   Periodically it will happen that two of the three
vacancies occur at one station and are both firefighter
vacancies, while the third vacancy, at the other station, is an
officer vacancy.  For nearly 20 years prior to July 1, 1993, it
was the City's practice, in those circumstances, to hire a
firefighter in order to meet minimum manning levels at the
station with two firefighter vacancies (Chart 6).  Under the new

			       -4-

practice begun on July 1, 1993, the City swings a firefighter
from the station with the officer vacancy, causing a second
vacancy at that station; it then fills the officer vacancy (Chart
7), rather than the firefighter vacancy that created the need to
hire.  The new overtime policy is more costly for the City than
its old policy.
	       

			       -5-


	    Chart 1                          Chart 2
	normal manning                    minimum manning
				      (neither vacancy filled)


   CENTRAL        CASH CORNER         CENTRAL        CASH CORNER

      O                O                O                O
      D                F                D                F
      F                F                F                F
      F                F                F                F
      F                F                F  out           F  out
      F                F                F                F
      F                                 F

_________________________________________________________________
			  
			     Chart 3
		       minimum-manning "swing"
		       
   CENTRAL       CASH CORNER         CENTRAL        CASH CORNER

      O                O                O  out           O
      D                F                D                F
      F                F                F (off. in chg)  F
      F  out           F                F                F
      F                F                F                F
      F  out           F                F  out           F
      F                                 F

_________________________________________________________________

	    Chart 4                           Chart 5
  order of filling vacancies             swing to avoid hiring


   CENTRAL        CASH CORNER         CENTRAL        CASH CORNER

fill  O  out           O          fill  O  out           O
      D                F                D                F
      F                F  out           F                F
      F  out           F                F  out           F
      F                F                F                F
      F                F                F  out           F
      F                                 F      
_________________________________________________________________

	    Chart 6 (OLD)                     Chart 7 (NEW)

  CENTRAL        CASH CORNER          CENTRAL        CASH CORNER

      O                O out            O          fill  O  out
      D  (off. in chg) F                D                F
      F                F                F                F
      F                F                F                F
      F  out           F                F  out           F
fill  F  out           F                F  out           F
      F                                 F    

			       -6-

6.   By letter dated February 21, 1993, the Association requested
that negotiations for a successor to the 1990-93 firefighters'
agreement begin.  By letter dated March 16, 1993, Assistant City
Manager Jeffrey Jordan acknowledged the request and indicated his
readiness to begin negotiations.  At their first meeting on April
21, 1993, the parties signed ground rules for negotiations.
Among other things, the parties agreed in the ground rules that
if successor negotiations continued beyond the contract expi-
ration date, the parties would continue to abide by the
provisions of the contract.

     7.   At that same meeting on April 21st, the City notified
the Association that the command officers' unit had proposed
changing how overtime was assigned to provide that officers would
always have overtime priority, even if that required "swinging" a
firefighter from one station to another.  (Command unit members
believed that they had been entitled to the overtime in question
since the two bargaining units split in 1988; for various
reasons, they did not formally pursue the issue at the bargaining
table until negotiations began for the 1993-94 command unit
contract.)  The Association did not agree to any change in the
City's overtime policy.  It did not make any counterproposals at
this meeting.

     8.   The parties next met for negotiations on June 8, 1993,
by which time the City had already tentatively agreed to the
overtime proposal made by the command officers' unit.  The
Association informed the City that since firefighters would lose
overtime money and "officer-in-charge" money if the overtime
change occurred, the 3 percent raise that the City had offered as
part of the settlement package for firefighters was not
acceptable.  The Association then offered three alternate
economic proposals in connection with the overtime issue; no
agreement was reached.  The City stated its intention to proceed
with the change, and the Association stated its position that the

			       -7-

change could not be made without negotiating it.

     9.   The City issued its Change to Hiring Policy, effective
July 1, 1993, item 2 of which states:

     Hiring Changes

	  If there is a need to hire and when an officer
	       is out at either station.

	       A.  Attempt to hire an officer and swing a
     firefighter when a station has five firefighters on
     duty to balance the crews.

	       B.  If no officer takes the job voluntarily,
     attempt to hire a firefighter or dispatcher depending
     on the vacancy.

	       C.  If no firefighter and/or dispatcher takes
     the job voluntarily, then force an officer.

     10.   The Association submitted its grievance over the change
in overtime policy to the fire chief on July 11, 1993.  The
grievance was denied on July 22nd, and was submitted to the
assistant city manager on July 23, 1993.  At a negotiation
session between the City and the Association on that same day,
the Association stated that it did not believe that the parties'
package bargaining effort should continue in light of the
overtime agreement between the City and the command officers'
unit.  The Association then made individual bargaining proposals
on fifteen articles of the parties' expired contract, including
various wage provisions.

     11.  A step III grievance hearing was held on August 1,
1993, and the assistant city manager denied the grievance by
letter dated August 6, 1993.

     12.     At the next negotiation session on August 10, 1993, the
City presented its opening proposals on individual articles;
negotiations ensued, and the parties reached tentative agreement

			       -8-

on several issues.

     13.  By letter dated August 23, 1993, the Association filed
a request with the Board of Arbitration and Conciliation for
arbitration of its overtime grievance.

     14.  Additional negotiations for a successor contract took
place on August 25, October 8, October 14, November 4, and
November 9, 1993.  At the meeting of October 14th, the City made
a "package offer" to conclude negotiations.  After considerable
discussion that included counterproposals and settlement of some
issues, the package on the table was denominated as the Union's
counterproposal; the assistant city manager agreed to take it to
the City Council for review. (Corrections in the contents of the
package were made at the meeting on November 4th.)

     15.  At the meeting of November 9th, the City raised the
issue of settlement of the outstanding prohibited practice case
and grievance related to the parties' overtime dispute, along
with vacation scheduling.  The Association made a proposal that
included increased longevity incentives, to offset overtime pay
already lost, among other things.  The City also made a settle-
ment proposal.  The parties were unable to reach agreement on a
settlement of the prohibited practice complaint and grievance,
but did agree to continue, at that meeting, their attempts to
reach a new contract.  A tentative agreement was reached, and the
new agreement was signed on January 12, 1994, retroactively
effective July 1, 1993, through June 30, 1994.

     16.  In a draft final agreement prepared on or about
December 21, 1993, by the City and provided to the Association
for signature, the words "that reflects the vacancy" were
inadvertently omitted from Article 16.  The Association protested
the omission, and the words appear in the contract signed on
January 12, 1994.

			       -9-

			   DISCUSSION

     At issue in this case is whether the City made an unlawful
unilateral change in a mandatory subject of bargaining for the
firefighters' unit.  A unilateral change in terms and conditions
of employment constitutes "a circumvention of the duty to
negotiate which frustrates the objectives of [the duty] much as
does a flat refusal."  NLRB v. Katz, 369 U.S. 736, 743 (1962).
Thus, such a change is a per se violation of the duty to bargain.
Id.  Unilateral changes also inherently tend to interfere with
the free exercise of rights guaranteed by the MPELRL, in viola-
tion of 26 M.R.S.A.  964(1)(A).  Lane v. Board of Directors of
MSAD No. 8, 447 A.2d 806, 810 (Me. 1982).

     The facts surrounding the dispute in this case are straight-
forward and undisputed.  Minimum manning at each of the City's
two fire stations is normal manning minus one (Chart 2).  In
other words, when a single vacancy occurs at either station, the
vacancy is not filled.  Where two vacancies occur at one station,
a firefighter is swung from the other station, so that each
station has a single vacancy and no overtime hiring is necessary
(Chart 3).  These practices have not changed, and are not being
challenged.

     When three vacancies occur, one vacancy must be filled to
maintain minimum manning at each station.  Prior to July 1, 1993,
the established policy was to fill a vacancy at the station that
had created the need to hire -- i.e., at the station that did not
have minimum manning (Charts 4 and 6).  If an officer was out at
that station, it was the officer vacancy that was filled (Chart
4).  If the officer vacancy occurred at the other station, it was
not filled because that station had minimum manning (Chart 6).

     In response to a bargaining demand from the command
officers' unit of the fire department, the City negotiated a new
overtime policy with that unit that it acknowledges affects the

			      -10-

availability of overtime for firefighters (overtime for
dispatchers in the non-supervisory unit is not at issue here).
Under the new policy a firefighter is swung whenever necessary to
ensure that the officer vacancy will be one of two vacancies at a
single station, and therefore that the officer vacancy will be
the one to be filled (Chart 7).  The result of changing which
station is undermanned is to give command officers more oppor-
tunities for overtime and firefighters less.

     In its answer to the complaint, the City asserted two
defenses to its change in the overtime policy as it affected
firefighters:  that the overtime in question is command officers'
unit overtime, and therefore is not a mandatory subject of
bargaining for firefighters; and that an action is unilateral
only if it is taken without prior notice to the bargaining agent
sufficient to afford it a reasonable opportunity to bargain over
the change.  In its posthearing brief, the City added three
arguments:  1) that the City had the "right and obligation" to
change its overtime practice to conform with clear and unam-
biguous command officer's unit contract language; 2) that it was
required to change its overtime practice to avoid illegal
subcontracting; and 3) that the firefighters waived their right
to complain about the change by executing a successor contract.
We find absolutely no merit in any of the City's defenses.

     Three of its defenses -- that the overtime in question is
not a mandatory subject for firefighters, that the old overtime
practice violates the command officers' unit contract, and that
the change in practice was necessary to avoid illegal subcon-
tracting of command unit work -- are based on the assumption
that the overtime in question here is command officers' unit
overtime.  That assumption begs the question.  By virtue of the
City's manning policy, the overtime in question here is not
inherently either command unit or firefighter unit work.  Under
the manning policy, normal manning is 13 and minimum manning is

			      -11-

11.  In other words, the City does not hire from any overtime
roster until three vacancies occur.  Thus, the question is not,
as the City would have us believe, whether an officer or a fire-
fighter will fill an officer vacancy, but whether an officer
vacancy or a firefighter vacancy will be filled when both exist.3
Under an established practice of over twenty years, which vacancy
would be filled was determined by which station was undermanned
(the officer vacancy was filled only if that vacancy existed at
the undermanned station).  Since it is the City's unilateral
change (manipulation of station undermanning) that caused the
overtime to become command unit overtime, the City cannot now use
the result of the change to justify the change itself.4

     The City's assertions of waiver are no more convincing.  The
City states in its posthearing brief:  "The Firefighters
originally disputed the change in negotiations, then withdrew the
dispute, declined to demand negotiations on the contemplated
change, and ratified the successor 1993-94 Collective Bargaining
Agreement."
_________________________

     3The City's statement that in order for a firefighter to
perform the overtime in question, the firefighter must first be
elevated to "officer in charge," also begs the question.  It
assumes that the officer vacancy and not a firefighter vacancy
should be filled.  Yet that is only true under the City's new
policy of changing which station is undermanned.

     4The City and the Association disagree on the relevance of
contract language in this case.  The Association relies on the
phrase "that reflects the vacancy" for the proposition that the
City's unilateral change also violates Article 16 of the 1990-93
contract.  The City, on the other hand, asserts that that phrase
is irrelevant.

     We need not resolve this dispute.  Established practice must
be maintained pending negotiations for a new contract, whether
that practice is reflected in the firefighter contract or not.
Lincoln Fire Fighters' Association v. Town of Lincoln, No. 93-18
(Me.L.R.B. Apr. 21, 1993).
			  
			      -12-

     The City does not specify when the Association "withdrew the
dispute."  In any case, the record reflects that it did not.
Since it was on April 21, 1993, at the first negotiation session
between the City and the Association, that City informed the
Association of the command unit's bargaining demand regarding
overtime, we assume that the City's statement that the Associa-
tion "originally disputed the change" refers to this meeting.  In
any case, we do not believe that the Association's failure to
make on-the-spot counterproposals constitutes a clear and
unmistakable waiver of the right to bargain.  Objecting to the
change was sufficient.

     The next negotiation session occurred on June 8, 1993.  By
that time, the City already had a tentative agreement with the
command officers' unit to make the overtime change.  In these
circumstances, the Association could hardly be expected to have
done more than it did, which was to put various economic pro-
posals on the table that it made clear were meant to compensate
firefighters for loss of overtime if it agreed to the contem-
plated change.  In fact, offering to accept other economic
compensation would constitute a counterproposal even in the
absence of a "done deal" with the command officers' unit.  We
find that no waiver of the right to bargain occurred at the June
8th meeting, if one is alleged.

     After the change was implemented on July 1, 1993, the
Association filed a grievance on the change, and eventually a
prohibited practice complaint.  We know of no authority for the
City's novel proposition that the Association was required to
continue demanding negotiations regarding a change that had
already occurred.  The Association had no obligation, as the City
suggests, to make additional counterproposals rather than filing
its grievance and prohibited practice complaint to contest the
change itself.  Rather, the Association's grievance, and
eventually its prohibited practice complaint, constituted clear

			      -13-

notice by the Association that it was not acquiescing to the
change.

     To support its final assertion -- that the Association
waived its right to complain about the change by executing a new
contract after the complaint was filed -- the City points to the
fact that the new contract contains no clause reserving the
Association's right to continue to pursue this matter with the
Board.  It is true that the new contract, which was signed on
January 12, 1994, is retroactive to July 1, 1993.  However, the
City's own meeting notes, as well as its testimony at hearing,
reflect that at the parties' negotiation session of November 9th,
1993, the City raised the issue of settlement of the prohibited
practice complaint and related grievance. Those notes and
testimony also reflect that both sides made settlement proposals,
but that no settlement agreement was reached.  Moreover, the
overtime provision in the new contract is in all relevant
respects identical to the overtime provision in the expired
contract; thus, the new contract itself contains no evidence that
the issue was resolved in favor of the City at the bargaining
table.5  In these circumstances, the City's suggestion that the
Association had an affirmative duty to demand a "reservation"
clause in the new contract is simply without foundation.

     The City's unilateral change in overtime policy with respect
to employees in the firefighters' unit violates section 964(1)(A)
and (E) of the MPELRL, 26 M.R.S.A.  964(1)(A) and (E) (1988).
Accordingly, we will order the City to cease and desist from
making unilateral changes in the mandatory subject of overtime
and from continuing to apply its new overtime policy to the
_________________________
			 
     5In fact, when the City inadvertently omitted language from
the final draft of the new contract that the Association believed
required the City to continue its old overtime practice, the
Association objected and the language was put back in.

			      -14-

firefighters, and to post the appropriate notice.6  In addition,
in order to effectuate the policies of the MPELRL, we will order
the City to reimburse firefighters for overtime and officer-in-
charge pay lost as a result of the change, from July 1, 1993, to
the present, plus interest.7

     We are dismayed by the City's unwillingness to settle this
prohibited practice case prior to hearing, given what we perceive
to be a clear unilateral change and the failure of the City to
offer any meaningful defense to its actions.8  In these circum-
stances, we will order the City to reimburse the Association for
the Board costs that it incurred in prosecuting its complaint.
26 M.R.S.A.  968(1) (Supp. 1993).  The City will not be required
to pay attorney's fees.  However, we wish to put the City on
notice that the result may well be different if we are faced with
a similar complaint filed by the command unit.  The City is in
the unenviable position of having unilaterally changed an
established practice for one unit in order to satisfy a request
from another unit made at the bargaining table, and now has two
_________________________

     6We will grant the Association's request, in its complaint,
that the notice be posted in City Hall as will as the fire
stations.

     7Interest is to be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977), utilizing the interest rates speci-
fied in New Horizons for the Retarded Inc., 283 NLRB 1173 (1987).
Thus, interest is to accrue commencing with the last day of each
calendar quarter of the time period subject to reimbursement, on
the total amount then due and owing at the short-term Federal
rate then in effect, and continuing at such rate, as modified
from time to time, until the City has complied with this order.
From July 1, 1993, to the present, the short-term Federal rate
has been 7 percent.

     8In its prehearing submission, the City stated that it was
open to any settlement that was fair to "all of the parties," one
of those parties being the command officers' unit.  In addition,
according to that same submission the City offered to reinstate
the old overtime policy, but did not offer any reimbursement for
overtime lost.

			      -15-

pipers to pay.  It must either do just that, or otherwise resolve
the matter through bargaining.  The Board has no authority to
extricate the City from its predicament, and would look with
great disfavor on any attempt by the City to avoid its responsi-
bilities.

			      ORDER

     On the basis of the foregoing facts and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A.  968(5) (1988 &
Supp. 1993) and the Board's Rules and Procedures, it is hereby
ORDERED:

     1.   That the City of South Portland and its representatives
and agents shall:

     a.   Cease and desist from refusing to bargain and from
	  interfering, restraining and coercing members of
	  the firefighters' unit by making unilateral
	  changes in overtime policy as it affects that
	  unit.

     b.   Cease and desist from continuing to apply
	  the new overtime policy instituted on July 1,
	  1993, to members of the firefighters' unit.

     c.   Take the following affirmative actions that are
	  necessary to effectuate the policies of the
	  MPELRL:

	  i.   Reimburse members of the firefighters'
	       unit for all overtime and officer-in-charge
	       pay lost as a result of the unilateral
	       change, plus interest.  Payment shall be made
	       within 20 calendar days of the date of
	       issuance of this decision and order.  If the
	       parties are unable to agree on the number of
	       hours for which compensation is due, they
	       may request Board assistance within 15 days
	       of the date of issuance of this decision and
	       order.

	  ii.  Continue to fill vacancies in accordance
	       with the policy in effect prior to July 1,
	       1993, until such time as the City and the
	       Association agree otherwise or exhaust
	       statutory dispute resolution procedures.

			      -16-

	  iii. Reimburse the Association for Board costs
	       incurred in prosecuting its complaint, in the
	       amount of $265.25.  Payment shall be made
	       within 20 calendar days of the date of
	       issuance of this decision and order.

	  iv.  Sign, date and post, within 10 calendar days
	       of the date of issuance of this decision and
	       order, at City Hall and all locations where
	       notices to firefighters are customarily
	       posted, copies of the attached "Notice."  The
	       Notice shall remain posted for two weeks.

	  V.   Notify the executive director, in writing,
	       within 25 calendar days of the issuance of
	       this decision and order, of the steps that
	       have been taken to comply with this order.

     2.   That the Association's request for attorney's fees is
denied.

Issued at Augusta, Maine, this 2nd day of June, 1994.

					MAINE LABOR RELATIONS BOARD


					/s/__________________________
					Kathy M. Hooke
					Alternate Chair


					/s/__________________________
					Howard Reiche, Jr.
					Employer Representative

The parties are hereby advised of their right, pursuant to
26 M.R.S.A.  968(5)(F) (Supp. 1993), to seek review of this
decision and order by the Superior Court.  To initiate such a
review an appealing party must file a complaint with the Superior
Court within fifteen (15) days of the date of issuance of this
decision and order, and otherwise comply with the requirements of
Rule 80C of the Maine Rules of Civil Procedure.

Alternate Employee Representative Gwendolyn Gatcomb filed a
separate opinion, dissenting in part.
		       
			      -17-

			     OPINION

     I agree with my colleagues that a unilateral change in a
mandatory subject unmistakably occurred in this case, and that
the City presented no meaningful defense to its actions.  In
these circumstances, I would require the City to reimburse the
Association for Board costs and attorney's fees.  The Associa-
tion's time and money were wasted on a matter that should never
have gone to hearing.

Issued at Augusta, Maine, this 2nd day of June, 1994.


			      /s/__________________________
			      Gwendolyn Gatcomb
			      Alternate Employee Representative
			      

			      -18-

		       NOTICE TO EMPLOYEES

		POSTED PURSUANT TO AN ORDER OF THE
		   MAINE LABOR RELATIONS BOARD

AS A RESULT OF THE FILING OF A PROHIBITED PRACTICES CASE AGAINST THE CITY
OF SOUTH PORTLAND, IT HAS BEEN DETERMINED THAT THE CITY HAS VIOLATED THE
LAW.  IN ACCORDANCE WITH OUR INTENTION TO COMPLY WITH THE BOARD'S
ORDER, YOU ARE NOTIFIED OF THE FOLLOWING:


     We will cease and desist from refusing to bargain and from interfering, restraining
and coercing members of the firefighters' unit by making unilateral changes in overtime
policy as it affects that unit.

     We will cease and desist from continuing to apply the new overtime policy
instituted on July 1, 1993, to members of the firefighters' unit.

     We will reimburse members of the firefighters' unit for all overtime and officer-in-
charge pay lost as a result of the change in policy, plus interest.

     We will continue to fill vacancies in accordance with the overtime policy in effect
prior to July 1, 1993, until such time as the City and the Association agree otherwise or
exhaust statutory dispute resolution procedures.

     We will reimburse the South Portland Professional Firefighters Association for Board
costs incurred in prosecuting its complaint.

      We will post this notice for two weeks.

      We will notify the Board of the date of posting and of compliance with its order.


					  City of South Portland
					   
Dated:                                    ____________________________
					  Jerre R. Bryant
					  City Manager


Any questions concerning this notice or compliance with its provisions may be directed to:

		   MAINE LABOR RELATIONS BOARD
		     STATE HOUSE STATION 90
		      AUGUSTA, MAINE 04333
			 (207) 287-2015