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

STATE OF MAINE                                   SUPERIOR COURT
PENOBSCOT, SS                                    CIVIL ACTION
                                                 DOCKET NO.  CV 80-563

                                                 

CITY OF BANGOR,                   ) 
                                  )                                               
               Appellant          )                                                                    
                                  )
      v.                          )              OPINION
                                  )
COUNCIL #74, AMERICAN FEDERATION  )
OF STATE, COUNTY AND MUNICIPAL    )
EMPLOYEES, AFL-CIO,               )
                                  )
               Appellee           )



     This case now on appeal from the Maine Labor Relations Board
pursuant to 26 M.R.S.A. 968(5)(F) (1980 Supp.) and M.R.Civ.P. 80B
suffers a fairly convoluted procedural history, culminating in
City of Bangor v. Local 926, Council #74, American Federation of
State, County and Municipal Employees, AFL-CIO, Me., __A.2d__(dec.
2591, June, 1981).  Article 3, section 2 of the collective bargain-
ing agreement between the City of Bangor (the City) and Local 926,
Council #74, American Federation of State, County and Municipal
Employees, AFL-CIO (the Union) provides:

           [i]f during the term of this Agreement or any
         extension thereof, 26 M.R.S.A. 964(1)(B) is con-
         strued 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 negotiation by either
         party hereto.

     On April 30, 1979, less than two months after the agreement
was executed, the justices of the Supreme Judicial Court issued an
advisory opinion to the House Representatives concerning a "fair
share" union security clause in a proposed agreement with the
Maine State Employees Association which represented several units

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of state employees.  Opinion of the Justices, Me., 401 A.2d 135
(1979).  In their opinion, the statutory freedoms guaranteed to
state employees under the State Employees Labor Relations Act
were not violated by the "fair share" provision which required
nonmember employees in the bargaining unit to pay to the union
80% of the members' dues.  On May 31, 1979, the Union requested
the City to negotiate with it on the issue of the inclusion of
union security provisions, pursuant to article 3, section 2.
The City refused to do so, and the Union invoked the four-step
grievance procedure created by article 21 of the collective bar-
gaining agreement, the final step of which is binding arbitration.
The board of arbitrators concluded that the condition to negotiation
established in article 3, section 2 had in fact been satisfied
and that the City was therefore under a duty to negotiate on the
issues of inclusion of union security provisions.  Pursuant to 26
M.R.S.A. 972, in CV 80-157-A, the Superior Court granted the
Union's motion to confirm the arbitration award, denied the City's
motion to vacate it, and ordered the City to negotiate with the
Union.  The City then appealed this decision to the Law Court.

     Before the Law Court issued its ruling and opinion on the
appeal from CV 80-157-A, the Union filed a prohibited practice
complaint with the Maine Labor Relations Board on or about May 19,
1980, pursuant to 26 M.R.S.A. 968(5)(B) (1980 Supp.). The com-
plaint alleged, inter alia, that after the board of arbitrators
had concluded that the City was subject to a duty to negotiate on
the issues provided in article 3, section 2, the Union requested a
meeting for the purpose of collective bargaining.  Because the City
refused to negotiate, the complaint alleged, the City violated 26
M.R.S.A. 964(1)(E).  As an affirmative defense, the City claimed

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that the arbitration award was not final and controlling on the
parties because it was then on appeal. (The pleading embodying this
claim was filed while the Superior Court's consideration of motions
to vacate and to confirm was pending.  The City's appeal from the
court's approval of the motion to confirm, however, sustains the
conceptual basis of this affirmative defense.)  On August 21, 1980,
the Maine Labor Relations Board notified the parties that it would
not defer to the arbitration award and would itself consider the
substantive issue of whether a duty to negotiate arose.  The Board
resolved this issue favorably to the Union, concluding that the
condition to negotiation had been satisfied and that the City
violated 964(1)(E).  While not explicitly addressing the further
problem of whether the appeal of the arbitration award effected a
stay of its terms, the Board ordered that the City must meet with
the Union "within ten days from receipt of this order for the pur-
pose of collectively bargaining the subject of union security...."

     The City claims error on several grounds, and its appeal from
the Board's decision is presently before this court.  CV 80-563.
After the appeal was filed, however, the Supreme Judicial Court
issued a decision on the appeal from CV 80-157-A, in which the
Superior Court denied the City's motion to vacate the arbitration
award.  In its opinion, the court held that the Superior Court
erred in denying the motion and that it instead should have vacated
the arbitration award.  Accordingly, the Law Court remanded the
case to the Superior Court to enter the appropriate order of
vacation.

     Included as an error which the City asserts taints the decision
below in the instant case is the Board's improper consideration of
the merits of the arbitration award, rather than only of the effect
of the appeal on its effectiveness, because the former was not

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adequately raised in the pleadings.  The Union, on the other hand,
contends that the issues presented to the Board included those of
whether the contingency occurred and whether the parties could
negotiate on the union security issue.  This court need not resolve
this issue nor the substantive questions themselves, for the Law
Court's decision in City of Bangor v. Local 926, Council #74,
American Federation of State, County and Municipal Employees, AFL-
CIO, supra, disposed effectively of any issue on appeal here.  The
court there held that a duty to negotiate on union security pro-
visions did not arise because the contingency in article 3, section
2, was not satisfied.  Thus, even if the Board's consideration of
whether the contingency occurred was proper, its conclusion that
the condition was satisfied is subordinated to the Law Court's
contrary ruling.  And, of course, the issue of the stay, which both
parties evidently agree was before the Board, is now moot in the
face of a final decision by this jurisdiction's highest tribunal
on the underlying action.

     Accordingly, the entry is:

     Appeal Sustained.  The decision of the Maine Labor Relations
Board is Reversed.

Dated:  June 11, 1981
                                       /s/___________________________
                                            William E. McKinley
                                          Justice, Superior Court

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