Portland Firefighters Association v. City of Portland and Maine Labor Relations Board, No. CV-83-326 (Me. Super.Ct., Ken. Cty., Nov. 14, 1983); correction issued (Nov. 18, 1983); affirming Portland Firefighters Assoc. I.A.F.F. v. City of Portland, No. 83-01 (June 24, 1983); aff'd sub nom.aff'd 478 A.2d 297 (Me. 1984) STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. CV-83-326 PORTLAND FIREFIGHTERS ) ASSOCIATION, LOCAL 740, ) INTERNATIONAL ASSOCIATION ) OF FIREFIGHTERS, AFL-CIO ) ) Complainant ) ) OPINION and vs. ) ORDER ) CITY OF PORTLAND and ) MAINE LABOR RELATIONS BOARD, ) ) Respondents ) This matter is before the Court on appeal by the Portland Firefighters Association, Local 740, International Association of Firefighters (Local 740), challenging a decision of the Maine Labor Relations Board (MLRB) that issues of minimum manpower per shift, per station and per truck are not mandatory subjects of collective bargaining. Timely appeal is brought pursuant to 26 M.R.S.A. 968(5)(F) and Rule 80(c) M.R. Civ. P. from the decision of the Maine Labor Relations Board. Local 740 is the bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B) for the firefighters, lieutenants, and captains employed by the Portland Fire Department. The City is a public employer as defined in 26 M.R.S.A. 962(7). Jurisdiction of the Maine Labor Relations Board to hear the case and render a - 1 - decision is established by 26 M.R.S.A. Section 968(5). The procedural history of the case follows: In April of 1982 Local 740 and the City began negotiating for a new collective bargaining agreement to succeed an agreement due to expire on June 1, 1982. Among the proposals which Local 740 presented for negotiation during the first bargaining session was a suggestion that a new article be added to the contract stating that: "the minimum manpower per shift will be 52 not including the Deputy Chief on duty." At a bargaining session on June 1, 1982 the City's negotiator stated that the minimum manning proposal did not fall within the categories of wages, hours or working conditions subject to mandatory bargaining pursuant to 26 M.R.S.A. 965(1)(C), and that consequently the City was not obligated to bargain about the proposal. Negotiations apparently ceased about this time. The City reiterated its position in a letter dated June 16, 1982 to Local 740 and suggested that negotiations be resumed so that the parties' remaining proposals could be discussed. Local 740 responded to the City's letter on July 1, 1982, stating it was willing to resume negotiations only if the City would bargain about the issue of minimum manpower assignments. On July 12, 1982, Local 740 filed a prohibited practices complaint with the MLRB pursuant to 26 M.R.S.A. S 968(5)(B). The complaint alleged that the City of Portland had violated 26 M.R.S.A. 964(1)(A) and (E) by refusing to negotiate Local 740's proposals regarding minimum manning in the Fire Department. The City filed - 2 - an answer and a counter-claim on July 26, 1982, alleging that it is not obligated to bargain about the minimum manning proposals and that Local 740 violated 26 M.R.S.A. 964(2)(B) by insisting to impass that the proposals be negotiated. On September 10, 1982 Local 740 proposed to the City that negotiations be resumed, stating that it was expanding its original minimum manpower proposal to include proposals setting minimum manpower assignments either per shift, per station or per truck. The City responded on September 14th, stating that the alternative proposals were merely reformulations of the original proposal. No further bargaining occurred. Local 740 amended its MLRB complaint to include the new issues raised in its September 10 offer, and the City filed a response to that amendment. The matter then proceeded to MLRB hearings which were held on November 23 and continued to December 6, 1982. At the start of the MLRB hearing counsel for each side stated their positions; counsel for Local 740 arguing that questions of fact had to be resolved and counsel for the City stating that dispute involved purely a question of law. MR. HAYDEN for Local 740: I think that the central fact is the connection between the present manpower assignments in the City of Portland and firefighter safety, particularly the firefighter safety of the Union members. That is a matter of factual record which we will determine through our witnesses. The statute provides that there shall be good faith bargaining - 3 - regarding working conditions. We look upon it as our burden to set forth just exactly why it is that manpower assignments are elemental working conditions with respect to firefighters as opposed to really any other public employee. And that is the central factual issue that remains unresolved. MR. PRINGLE for the City: Frankly, Your Honor, I don't see this as a fact issue at all. I think it's a legal issue. And in our view the issue which the Board has to address is whether the minimum manning proposal which the Union has on the table and which has had on the table now for some five months is a mandatory subject of bargaining. I think the facts that are in question have been stipulated to. There are some additional facts which I think would be helpful, although, frankly, I don't think they're determinative of the legal issue one way or the other, and should the Board determine to hear any additional facts we will be offering such as the cost of the firefighters' proposal, such as some statistics on fires, statistics on injuries. All of those, frankly, I think are window dressing because the legal issue is really quite clear cut. (Hearing Transcript 12-13) - 4 - Before this Court, the position of the parties is somewhat reversed with Local 740 arguing that the MLRB made an error of law and the City urging that the MLRB decision on the facts is fully supported by evidence in the record. The MLRB hearing then proceeded with presentation of substantial evidence regarding fire safety and fire suppression practices. In its decision upholding the City's position and dismissing Local 740's complaint, the MLRB made several important findings and legal conclusions. Most significantly the MLRB held as a matter of law that collective bargaining proposals relating to workplace safety and workload are mandatory subjects of bargaining. (Decision at 4.) This interpretation of 26 M.R.S.A. 965(1)(C) appears fully supportable as a matter of law, Cf. National Labor Relations Board v. Gulf Power Company, 384 F.2d 822 (5th Cir. 1967); Town of Billerica v. Local 1495, Internal Association of Firefighters, 4 NPER 22-13065 (Mass. 1982). Thus Local 740 prevailed on the principal contested legal issues; the MLRB having determined that safety related minimum manpower assignments were mandatory subjects of collective bargaining. The MLRB further found, as a fact, that manpower levels at a fire scene can have a direct impact on firefighter safety. However, with those legal and factual determinations behind it, the MLRB then examined the evidence and found, on the facts, against the Local 740 minimum manning proposals for shifts, stations or trucks: - 5 - "We think it clear that minimum manpower assignments either per shift or per station are not sufficiently related to the number of firefighters at the scene of a fire to make the per shift or per station proposals mandatory subjects of bargaining; the number of fire- fighters on-duty per shift or per station does not necessarily insure an adequate number of firefighters at a fire scene. We also cannot say that the number of firefighters per truck is sufficiently related to the number of firefighters available to perform various tasks at the scene to make the per truck proposal a mandatory subject. As we have noted, the number of firefighters who perform a particular task - such as laying a hose, engaging in a search and rescue mission, or ventilating a roof - is directly related to safety and workload, but the proper way of establishing the correct number of firefighters to perform such tasks is by negotiating work rules and procedures addressed to each specific task. We assume the City will negotiate about matters regarding safety and deployment of firefighters at fire scenes." (Decision at 3-4.) While these "findings" are included in the "Decision" part of the MLRB order, there is no doubt that the statements in the first two sentences in the above quoted paragraph are findings of fact. Accordingly they must be reviewed aqainst the "clearly erroneous" standard set in 26 M.R.S.A. 968(5)(F) and interpreted in Sanford Highway Unit of Local 481 v. Town of Sanford, 411 A.2d 1010 (Me. 1980). It is the Court's obligation to search the entire record and uphold the findings of fact if on the basis of all of the testimony and exhibits the MLRB could fairly and reasonably find the facts it did, Id. at 1013, In Re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (Me. 1973). Here there is substantial evidence to support the MLRB findings. Almost all of the testimony at the MLRB hearing focused - 6 - on events and firefighter safety at the scene of a fire rather than on a shift or at the fire house. Local 740's own expert cited many factors in addition to engine manning which affect firefighter safety. Q I wonder if you could list for me the other factors that would affect safety, putting aside manning? A Training, communications, command, experience, among the personal--strategies, day-to-day management in planning of the department, equipment, code enforcement, fire prevention, education, material involved, associated agencies involved in public protection, time of the fire, height and area of the building, available water supply, climactic conditions, topography, construction, internal and external arteries for fire extension, people in the building, automatic sprinkler systems, early detection systems, street alarm boxes and associated communications, available radio network, power tools and equipment. There's a few others. We could go on. (Hearing Transcript 104-105.) And his testimony focused almost entirely on events at a fire scene, see particularly Hearing Transcript 41-45, 50-55. - 7 - Portland Fire Department witnesses testified that while the current three man per truck response may not be entirely effective, it is safe. Thus Chief Joseph McDonough of the Portland Fire Department testified as follows: Q Can you in your, on the basis of your experience, have those firefighters do their job safely, in your opinion, with three people assigned to the truck? A Counsel, we can't have them do it effectively. Safety is another issue. Q Safely I'm talking. A Safely. Safely is another issue. I say that we cannot have them operate effectively. Something is going to suffer. Okay. What I would do, what I would prescribe them to do in that particular case, three men involved to a building involved, is to effect a rescue and let the building go until additional pieces arrive. Absolutely cannot perform dual functions with three men. No question about that. Q Can you effectively care for the safety of those men, can you effectively plan for the safety of those men undertaking a rescue when you have three firefighters on the scene? A Very marginal. Q Would it be safer if you had four? - 8 - A Absolutely. Q Under the best of all possibilities? A Absolutely. Q And would it be a greater risk, a greater proportional chance of injury if you had two? You know, are we talking about odds here? A If we had two, I wouldn't send them. (Hearing Transcript 265-266.) Other evidence indicated that the firefighters arriving by engine are augmented at the scene by a Deputy Chief and, sometimes, by others in a " squad truck". And testimony indicated that there are other means to get firemen to a fire scene besides having them ride as a crew assigned to a fire truck. By law, this Court cannot second guess findings made by the MLRB. The MLRB decision suggests that questions of manning and practices at the fire scene, such as alarm response staffing, may be subject to mandatory bargaining, but the MLRB could fairly and reasonably conclude on the evidence presented that manning of a shift or a stationhouse, or an engine crew, the issues addressed by Local 740, are not sufficiently related to firefighter safely at the fire scene to become mandatory subjects of collective bargaining. - 9 - Therefore, the Court ORDERS and the entry shall be: 1. Appeal DENIED. 2. The ORDER of the Maine Labor Relations Board is AFFIRMED. Date: 11-14-83 /s/_____________________________ DONALD G. ALEXANDER Justice, Superior Court - 10 - STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. CV-83-326 PORTLAND FIREFIGHTERS ) ASSOCIATION, LOCAL 740, ) INTERNATIONAL ASSOCIATION ) OF FIREFIGHTERS, AFL-CIO ) ) Complainant ) ) ) ORDER vs. ) ) CITY OF PORTLAND and ) MAINE LABOR RELATIONS BOARD, ) ) Respondents ) The word "safely" in the third line from the bottom of page 9 should read "safety". Dated: November 18, 1983 /s/__________________________ DONALD G. ALEXANDER Justice, Superior Court