City of Augusta v. Maine Labor Relations Board, et al., (May 3, 2002),
affirming MLRB Decision No. 01-09 (August 20, 2001)

STATE OF MAINE                                             SUPERIOR COURT
                                                           CIVIL ACTION
KENNEBEC, ss.                                              DOCKET NO. AP-01-63


     v.                                                    DECISION AND ORDER
BOARD, et al.,
     This matter is before the court on a petition for M.R. Civ. P. 80C review by the
City of Augusta challenging a decision of the Maine Labor Relations Board ordering the
City's participation in collective bargaining negotiation.  The City of Augusta requests a
review, pursuant to rule and statute, of a recent Maine Labor Relations Board (MLRB)
decision ordering the City to participate in collective bargaining with the Augusta
Uniformed Firefighters Association (Union), the purpose of which is to negotiate the
impact of changes in health insurance coverage.
     In October of 1999, the City and the Union entered into an agreement changing
the Union's health insurance carrier from Blue Cross/Blue Shield to Maine Municipal
Employee Health Trust (MMEHT).  The Platoon Chiefs, a separate bargaining unit, also
changed to MMEHT and all parties signed 3-year contracts, effective Jan. 1, 2000.
Several weeks after the agreement was ratified, MMEHT announced some changes to
some of the health plan benefits including a cap on lifetime benefits, certain increases in
deductibles and certain limitations on types of medical services.
     An employee from each bargaining unit filed a grievance related to the changes
in coverage and the grievances eventually ended up in arbitration.  On March 28, 2000,


a Union representative presented a written request to the City Manager for
negotiations over the impact of the change in health insurance carrier on the terms and
conditions of employment.  The City did not respond to this letter and the Union sent
another letter on August 13, 2000, this time including a citation to 26 M.R.S.A.  964
and 965 and warning that failure to reply would be treated as a violation of the statute.
On September 11, 2000, the arbitrator issued a decision regarding the grievances that
had been filed finding that the City had not violated the contract by failing to guarantee
the exact coverage that had been proposed.  On September 13, 2000, the City
responded to the Union stating that the City declined to meet to negotiate because it
had not made any decision that required impact bargaining.
     Based on these facts, the MLRB found that the City had violated its statutory
duty to meet within 10 days of receipt of a written notice from the other party
requesting bargaining, see 26 M.R.S.A.  964(1)(E), and ordered the City to cease and
desist from refusing to bargain collectively.
     An order of the MLRB should be vacated "only if the record demonstrates that
the agency abused its discretion, committed an error of law, or made findings not
supported by substantial evidence."  City of Bangor v. M.L.R.B., 658 A.2d 669, 671 (Me.
1995). The construction placed on a statute by the MLRB, as the agency charged with its
enforcement, should be accorded "considerable deference" by a reviewing court.  State
v. MLRB, 413 A.2d 510, 514 (Me. 1980).
The relevant statute reads:
          1.  Negotiations. it shall be the obligation of the public employer
     and the bargaining agent to bargain collectively.  "Collective bargaining"
     means, for the purposes of this chapter, their mutual obligation:
                        *  *  *  *

          B.  To meet within 10 days after receipt of written notice from the
     other party requesting a meeting for collective bargaining purposes,
     provided the parties have not otherwise agreed in a prior written
26 M.R.S.A.  965.
     The City argues it should not be required to meet with the Union for two
reasons.  First it contends that all of its insurance obligations are covered by the
contract, or if not expressly covered at least the details in question were "inseparably
bound up with and thus plainly an aspect of the contract itself."  C&S Industries, Inc.,
158 NLRB 454, 459 (1966).  The MLRB held that the issues raised by the coverage
changes were not contained in the agreements and the City was not in a position to
argue whether or not the changes caused an impact because it has not met with the
Union to educate itself on the potential impact.  The MLRB relies on an earlier ruling in
East Millinocket Teacher's Assoc. v. East Millinocket School Committee, No. 79-24 (1979)
where it cautioned bargaining agents to meet even when there are doubts as to the
sufficiency of the impact.  "[W]e think it would be safer and wiser for a party to meet
when requested even if it has doubts about the duty to meet.  Since a misunderstanding
of the law or of the facts of a clear request . . . will not excuse the duty to meet, a party
should therefore not lightly undertake the decision to refuse to meet when requested
by a 10-day letter."  Id. at 10.
     The City's second argument is based on the fact that a third party, MMEHT,
made the decision to change the health insurance coverage and because the decision
was not made unilaterally by the City, it has no obligation to meet.  The MLRB pointed
to several instances in its decision where forces outside the scope of the bargaining
relationship have triggered the requirement to negotiate the impact, including changes

in laws, regulations and Supreme Court decisions.  The MLRB also drew the distinction
between negotiating the decision or the event and negotiating the impact of the event.
The Law Court recognized this distinction in City of Bangor v. AFSCME, Council 74, 
449 A.2d 1129 (Me. 1982) where it held that the parties were foreclosed from negotiating the
actual discharge of employees, but not the impact of those discharges.  Id. at 1134-1135.
     Collective bargaining as defined by BLACK'S LAW DICTIONARY (7th ed.), quoting
Benjamin J. Taylor and Fred Whitney, Labor Relations Law 3 (1971):
     . . . means the joint determination by employees and employers of the
     problems of the employment relationship . . . .  The advent of collective
     bargaining does not give rise to these problems.  Rather they are
     germane to the industrial relations environment, and exists with or
     without unionization.
The term "impact" as it would appear in the phrase "impact bargaining" would appear to
take the definition of "the force exerted by the influence of new ideas." as a noun.
OXFORD AMERICAN DICTIONARY, 1980.  The court declines to accept the rationale of the
City that because it is in possession of all the details of its employees necessary for
determining the impact of a change in health insurance coverage as conclusive of the
issue.  The function of the statute is to cause the parties to communicate to determine
whether there is an impact since the request by the bargaining unit for such a meeting
would imply that the unit believes that an impact exists.  Meeting for purposes of
determining the existence, nature or extent of an impact does not invoke a requirement
that the employer make a concession only that it recognize the allegation of a problem,
i.e., an impact by the change, from whatever source.
     It seems fairly clear from the statute and the MLRB precedent that the City is
obligated to sit down with the Union and discuss the impact of the health insurance
changes.  Even if those discussions reveal a negligible or de minimis impact, as the

MLRB decision anticipates, the duty to negotiate in good faith places a mandate on the
City that the MLRB decision seeks to enforce and that decision is based on reasonable
and competent evidence.
     For all the above reasons, the entry will be:
          Decision of the Maine Labor Relations Board in the matter of Local
     1650, IAFF, AFL-CIO-CLC v. City of Augusta, Maine Labor Relations
     Board case number 01-09 is AFFIRMED.

Dated:  May 3, 2002                         /s/____________________________________________
                                            Donald H. Marden
                                            Justice, Superior Court