STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION
~~~~Tc~\~. ~!:7t~Z,A PORTLAND PROFESSIONAUdtRJli. I D A FIGHTERS ASSOCIATION, LOCAL 740, et a~: Db Petitioner ORDER ON MOTION FOR TEMPORARY v. RESTRAINING ORDER
CITY OF PORTLAND, Respondent
Before the Court is Petitioner's motion for a temporary restraining order
pursuant to M.R. Civ. P. 65(a).
BACKGROUND Employment relations between the City of Portland ("Respondent" or "City")
and the Portland Professional Fire Fighters Association, Local 740, International
Association of Fire Fighters, AFL-CIO, CLC ("Petitioner" or "Local 740") are governed
by a Collective Bargaining Agreement ("CBA").1 Article 12 of the CBA contains
provisions and procedure governing personnel reductions. The relevant provision
states:
Reductions in work force shall be made on the basis of seniority, unless the layoff of a specially trained junior member of the Department would result in a reduction of the level of services provided by the Fireboat, Air Rescue, or Emergency Medical Services (defined herein as employees holding an intermediate or higher Maine ALS license)....
Ex. A, Art. 12.1. The CBA also contains a grievance procedure that governs "the
interpretation of application by the City of any provision of this Agreement. .. ,"
including the arbitration of unresolved disputes. Id. Art. 19.1.
I The parties submitted a stipulation regarding the authenticity of the Collective Bargaining Agreement and the Seniority list and emergency medical certification list. Exs. A & B. By letter dated May 29, 2009, the City of Portland Fire Department informed nine
(9) senior fire fighters 2 who did not have Fireboat or Air Rescue certifications, or
Emergency Medical Services ("EMS") intermediate or higher licensure, that they were
subject to layoff pursuant to Article 12 of the parties' C BA. The letters state that these
individuals would be laid off as of June 30, 2009? On July 3,2009, Local 740 filed a
grievance on behalf of the nine individuals affected by this layoff. On July 6, 2009,
Local 740 filed a verified petition seeking a temporary restraining order, appeal,
preliminary restraining order, and other relief. 4 On July 7, 2009, the City filed an
opposition to the verified petition. On July 9, 2009, the Court held oral argument on the
motion for a temporary restraining order ("TRO"). The TRO would require the City to
recall the nine (9) fire fighters pending resolution of the matter at arbitration.
DISCUSSION
I. Jurisdiction
The City argues that the grievance procedure, which includes arbitration
provides the exclusive forum for the Petitioners to seek relief. In other words, since the
parties agreed to submit any disputes regarding the interpretation of the CBA to
arbitration, this Court is without authority to grant, or even consider a TRO petition. To
hold otherwise, argues the City, would allow parties to circumvent their contractual
obligations to arbitrate employment disputes. Although the Law Court has not
addressed this specific issue, the issue has been addressed frequently and nearly by
2 The individual fire fighters are: Travis Gibson, Adam Royer, Adam Bean, Dale Dyer, Elizabeth Morrisey, Leonard Tracy III, Peter Morrison, Ralph Munroe, and Daniel Hassler. 3 At oral argument, held on July 9, 2009, counsel disagreed as to the exact date of layoff. Counsel for the City submitted that the fire fighters were officially laid off as of July 4,2009. Counsel for the Petitioner submitted that the nine (9) individuals were permitted to complete their shifts during the first week of July. Thus, the individuals did not experience layoff until after the completion of their shifts between July 6,2009 and July 9, 2009. 4 At a scheduling conference held on July 7, 2009, the Court afforded the Petitioner the opportunity to re-file the verified complaint to correct deficiencies regarding the verification. See M.R. Civ. P. 65(a). Petitioner did so on July 9, 2009.
2 consensus by the federal courts.s As summarized by an authority on issues in
employment arbitration:
Even in a matter that is subject to arbitration, a party to the dispute may obtain temporary injunctive relief (including a temporary restraining order and a preliminary injunction) in court. The party seeking the temporary injunction normally must show that the traditional prerequisites for temporary injunctive relief have been satisfied. The matter then proceeds to arbitration, where the final hearing on any request for permanent injunctive relief and damages is held by the arbitrator or arbitrators appointed pursuant to the arbitration agreement.
1-9 O'Meara, Employment Arbitration § 9.02[1]; See also id. § 9.02[2]' n. 50 (citing
cases).
, The Court is persuaded that the Law Court, if faced with this issue, would
follow the line of logic developed by the federal courts. See Saga Communications
of New England, Inc. v. Voornas, 2000 ME 156, 'TI 9,756 A.2d 954, 958 (discussing
other jurisdictions' interpretations of "no waiver" provisions in collective
bargaining agreements with respect to "provisional application[s] to the courts in
order to preserve the status quo."). Arbitration, even arbitration on an expedited
basis, cannot afford the immediate relief that can be granted by a court of general
jurisdiction. Such relief may be necessary to maintain the status quo of the
parties to ensure that the arbitration procedure is not a "hollow formality."
Merrill Lynch, Pierce, Fenner & Smith v. Bradley, 756 F.2d 1048, 1052-54 (4th Cir.
1985). For these reasons, the Court holds that it has jurisdiction to consider
Petitioner's motion for a TRO.
5 The parties agree that the arbitration provision in the CBA is enforceable and that an arbitrator must ultimately decide this matter. In fact, the parties agreed to an "expedited" arbitration, whereby the parties waived the various steps in the grievance procedure and will proceed directly to an arbitrator.
3 II. Standard of Review
In order to succeed on a motion for a temporary restraining order, the
moving party has the burden of demonstrating the following: "(1) that plaintiff
will suffer irreparable injury if the injunction is not granted, (2) that such injury
outweighs any harm which granting the injunctive relief would inflict on the
defendant, (3) that plaintiff has exhibited a likelihood of success on the merits (at
most, a probability; at least, a substantial possibility), (4) that the public interest
will not be adversely affected by granting the injunction." Ingraham v. University
ofMaine, 441 A.2d 691, 693 (Me. 1982); see also Bangor Historic Track, Inc. v. Dep't of
Agric., Food & Rural Res., 2003 ME 140,
however, "are not to be applied woodenly or in isolation from each other; rather,
the court of equity should weigh all of these factors together in determining
whether injunctive relief is proper." Dep't ofEnvtl. Prot. v. Emerson, 563 A.2d 762,
768 (Me. 1989). The Court may only grant a TRO if it "clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate and
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION
~~~~Tc~\~. ~!:7t~Z,A PORTLAND PROFESSIONAUdtRJli. I D A FIGHTERS ASSOCIATION, LOCAL 740, et a~: Db Petitioner ORDER ON MOTION FOR TEMPORARY v. RESTRAINING ORDER
CITY OF PORTLAND, Respondent
Before the Court is Petitioner's motion for a temporary restraining order
pursuant to M.R. Civ. P. 65(a).
BACKGROUND Employment relations between the City of Portland ("Respondent" or "City")
and the Portland Professional Fire Fighters Association, Local 740, International
Association of Fire Fighters, AFL-CIO, CLC ("Petitioner" or "Local 740") are governed
by a Collective Bargaining Agreement ("CBA").1 Article 12 of the CBA contains
provisions and procedure governing personnel reductions. The relevant provision
states:
Reductions in work force shall be made on the basis of seniority, unless the layoff of a specially trained junior member of the Department would result in a reduction of the level of services provided by the Fireboat, Air Rescue, or Emergency Medical Services (defined herein as employees holding an intermediate or higher Maine ALS license)....
Ex. A, Art. 12.1. The CBA also contains a grievance procedure that governs "the
interpretation of application by the City of any provision of this Agreement. .. ,"
including the arbitration of unresolved disputes. Id. Art. 19.1.
I The parties submitted a stipulation regarding the authenticity of the Collective Bargaining Agreement and the Seniority list and emergency medical certification list. Exs. A & B. By letter dated May 29, 2009, the City of Portland Fire Department informed nine
(9) senior fire fighters 2 who did not have Fireboat or Air Rescue certifications, or
Emergency Medical Services ("EMS") intermediate or higher licensure, that they were
subject to layoff pursuant to Article 12 of the parties' C BA. The letters state that these
individuals would be laid off as of June 30, 2009? On July 3,2009, Local 740 filed a
grievance on behalf of the nine individuals affected by this layoff. On July 6, 2009,
Local 740 filed a verified petition seeking a temporary restraining order, appeal,
preliminary restraining order, and other relief. 4 On July 7, 2009, the City filed an
opposition to the verified petition. On July 9, 2009, the Court held oral argument on the
motion for a temporary restraining order ("TRO"). The TRO would require the City to
recall the nine (9) fire fighters pending resolution of the matter at arbitration.
DISCUSSION
I. Jurisdiction
The City argues that the grievance procedure, which includes arbitration
provides the exclusive forum for the Petitioners to seek relief. In other words, since the
parties agreed to submit any disputes regarding the interpretation of the CBA to
arbitration, this Court is without authority to grant, or even consider a TRO petition. To
hold otherwise, argues the City, would allow parties to circumvent their contractual
obligations to arbitrate employment disputes. Although the Law Court has not
addressed this specific issue, the issue has been addressed frequently and nearly by
2 The individual fire fighters are: Travis Gibson, Adam Royer, Adam Bean, Dale Dyer, Elizabeth Morrisey, Leonard Tracy III, Peter Morrison, Ralph Munroe, and Daniel Hassler. 3 At oral argument, held on July 9, 2009, counsel disagreed as to the exact date of layoff. Counsel for the City submitted that the fire fighters were officially laid off as of July 4,2009. Counsel for the Petitioner submitted that the nine (9) individuals were permitted to complete their shifts during the first week of July. Thus, the individuals did not experience layoff until after the completion of their shifts between July 6,2009 and July 9, 2009. 4 At a scheduling conference held on July 7, 2009, the Court afforded the Petitioner the opportunity to re-file the verified complaint to correct deficiencies regarding the verification. See M.R. Civ. P. 65(a). Petitioner did so on July 9, 2009.
2 consensus by the federal courts.s As summarized by an authority on issues in
employment arbitration:
Even in a matter that is subject to arbitration, a party to the dispute may obtain temporary injunctive relief (including a temporary restraining order and a preliminary injunction) in court. The party seeking the temporary injunction normally must show that the traditional prerequisites for temporary injunctive relief have been satisfied. The matter then proceeds to arbitration, where the final hearing on any request for permanent injunctive relief and damages is held by the arbitrator or arbitrators appointed pursuant to the arbitration agreement.
1-9 O'Meara, Employment Arbitration § 9.02[1]; See also id. § 9.02[2]' n. 50 (citing
cases).
, The Court is persuaded that the Law Court, if faced with this issue, would
follow the line of logic developed by the federal courts. See Saga Communications
of New England, Inc. v. Voornas, 2000 ME 156, 'TI 9,756 A.2d 954, 958 (discussing
other jurisdictions' interpretations of "no waiver" provisions in collective
bargaining agreements with respect to "provisional application[s] to the courts in
order to preserve the status quo."). Arbitration, even arbitration on an expedited
basis, cannot afford the immediate relief that can be granted by a court of general
jurisdiction. Such relief may be necessary to maintain the status quo of the
parties to ensure that the arbitration procedure is not a "hollow formality."
Merrill Lynch, Pierce, Fenner & Smith v. Bradley, 756 F.2d 1048, 1052-54 (4th Cir.
1985). For these reasons, the Court holds that it has jurisdiction to consider
Petitioner's motion for a TRO.
5 The parties agree that the arbitration provision in the CBA is enforceable and that an arbitrator must ultimately decide this matter. In fact, the parties agreed to an "expedited" arbitration, whereby the parties waived the various steps in the grievance procedure and will proceed directly to an arbitrator.
3 II. Standard of Review
In order to succeed on a motion for a temporary restraining order, the
moving party has the burden of demonstrating the following: "(1) that plaintiff
will suffer irreparable injury if the injunction is not granted, (2) that such injury
outweighs any harm which granting the injunctive relief would inflict on the
defendant, (3) that plaintiff has exhibited a likelihood of success on the merits (at
most, a probability; at least, a substantial possibility), (4) that the public interest
will not be adversely affected by granting the injunction." Ingraham v. University
ofMaine, 441 A.2d 691, 693 (Me. 1982); see also Bangor Historic Track, Inc. v. Dep't of
Agric., Food & Rural Res., 2003 ME 140,
however, "are not to be applied woodenly or in isolation from each other; rather,
the court of equity should weigh all of these factors together in determining
whether injunctive relief is proper." Dep't ofEnvtl. Prot. v. Emerson, 563 A.2d 762,
768 (Me. 1989). The Court may only grant a TRO if it "clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate and
irreparable injury, loss, or damage will result to the applicant." Bangor Historic
Track, 2003 ME 140,
A. Irreparable Harm
The Petitioners contend that the irreparable harm in this case flows from
deprivations of both procedural and substantive due process rights. Petitioners
contend that procedural due process mandates that they receive "notice to be
heard and a presentation of evidence against each individual." Pets.' Verified
CompI.
protected property interest in their employment as they may only be removed
from employment for just cause." Id.
4 "post-deprivation review" through arbitration is "insufficient to allow an
individual to vindicate an unconstitutional deprivation." [d.
Petitioners also assert that these property interests cannot be cured "by mere
monetary reimbursement." [d.
Petitioners' claims are broad and conclusory and are not supported by
specific facts demonstrating the irreparable (i.e. permanent or irreversible) nature
of the harm they would suffer as required by the Maine Rules of Civil Procedure.
M.R. Civ. P. 65(a). In fact, the argument of counsel suggests that the individuals,
if successful at arbitration, will receive back pay, re-instatement, and other
compensation that would make the parties whole. 6 Additionally, Petitioners'
procedural due process claim is without merit given the hearing and opportunity
to be heard before this Court. Therefore, Petitioners have failed to assert in their
affidavit specific facts demonstrating irreparable harm absent the issuance of a
TRO. Having found that the parties will not suffer irreparable harm, the Court
does not consider the remaining elements for the issuance of a TRO.
Given that the parties agree that arbitration is the proper forum for the
ultimate decision in this matter, this case is stayed until resolution at arbitration.
Therefore the entry is:
Petitioner Local 740's motion for a temporary restraining order is DENIED.
6 The Court is not oblivious or insensitive to the "real world" disruptions caused to these individuals and their families as a result of these layoffs. Nevertheless, a delay in payment is insufficient grounds for the issuance of a TRO. See New England Tel. & Tel. Co. v. Public Utilities Com., 565 F. Supp. 949, 953 (D. Me. 1983) (holding that "a mere delay (during which interest is earned) in receiving money is not considered irreparable injury") (citing 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2948 at 434 (1973)).
5 The case is STAYED pending the outcome of a final decision in arbitration.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this ~ day of --A~'!4---_--J 2009
~L fobert E. Crowley Justice, Superior Court
6 07/10/2009 MAINE JUDICIAL INFORMATION SYSTEM gmerritt CUMBERLAND COUNTY SUPERIOR COURT mjxxi013 PAGE A - ATTORNEY BY CASE VIEW PORTLAND PROFESSIONAL FIRE FIGHTERS ASSOCIATION LOCAL 740 VS CITY OF PORTLAND UTN:AOCSsr -2009-0071788 CASE #:PORSC-CV-2009-00401
SEL VD REPRESENTATION TYPE DATE 01 0000008064 ATTORNEY:TARASEVICH, MATTHEW ADDR:100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029 F FOR:CITY OF PORTLAND DEF RTND 07/07/2009
02 0000004225 ATTORNEY: KETCHAM, TODD RICHARD ADDR:50 MARKET STREET PMB 181 SOUTH PORTLAND ME 04106 F FOR:PORTLAND PROFESSIONAL FIRE FIGHTERS ASSO PL RTND 07/06/2009
Enter Option: A=Add, B+Sel=Browse, M=More, R+Sel=RltnEdit:
Select the EXIT KEY for page selection line.