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 -1- ______________________________________________________________________________ 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 -2- ______________________________________________________________________________ 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 -3- ______________________________________________________________________________ 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 -4- ______________________________________________________________________________