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

              Complainant     )
                              )                   OPINION and
        vs.                   )                   ORDER
CITY OF PORTLAND and          )
              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

     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

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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

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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

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       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)

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     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:

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        "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

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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

     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
     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
                                - 9 -

     Therefore, the Court ORDERS and the entry shall be:

     1.  Appeal DENIED.
     2.  The ORDER of the Maine Labor Relations Board is

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

               Complainant    )
                              )                        ORDER
        vs.                   )
CITY OF PORTLAND and          )
               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