STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-37
________________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Workers in the State )
of Maine, )
)
Complainant, ) DECISION AND ORDER
)
v. )
)
UNIVERSITY OF MAINE, )
)
Respondent. )
________________________________)
On November 9, 1978, Teamsters Local Union No. 48 ("Local 48") filed with
the Maine Labor Relations Board ("Board") a prohibited practice complaint
against the University of Maine ("University"). The University's response to
the complaint was filed December 6, 1978.
A pre-hearing conference on the case was held in Augusta, Maine, on
January 9, 1979, Alternate Chairman Donald W. Webber presiding. As a result
of this pre-hearing conference, Alternate Chairman Webber issued on January 15,
1979 a Pre-Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
On March 27, 1979 a Stipulation signed by representatives of the parties
was filed with the Board. This Stipulation set forth the pertinent facts in
the case, provided that no hearing on the case would be required, and stated
that the legal issues raised by the case would be argued to the Board in
briefs. The briefs were all filed by May 3, 1979, and the Board proceeded to
deliberate over the case at a conference held in Augusta, Maine on
September 28, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board, and we conclude that this Board has jurisdiction to hear and
decide this case as provided in 26 M.R.S.A. 1029.
FINDINGS OF FACT
The Board finds the following facts as set forth in the parties'
Stipulation:
1. Complainant Local 48 is a university employee organization
within the meaning of 26 M.R.S.A. 1029(2). Respondent
University is the "University" defined in 26 M.R.S.A.
1022(10).
2. On August 1, 1978, Local 48 was certified as the exclusive bar-
gaining agent for the members of the University Police bargain-
ing unit, established pursuant to 26 M.R.S.A. 1024(1)(F).
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3. One of the University's campuses is the University of
Southern Maine (formerly the University of Maine at
Portland-Gorham), a part of which includes a complex
of land and buildings located in Gorham, Maine. At all
times material herein, the University employed at its
University of Southern Maine Gorham campus University
Police Officers, appointed pursuant to the provisions of
Section 8-A of Chapter 532 of the Private and Special Laws
of Maine, 1865, as amended to date. Those University Police
Officers who are "University Employees" as defined in 26
M.R.S.A. 1022(11) are members of the University Police bar-
gaining unit represented by Local 48.
4. Prior to August 8, 1978, the University Police Officers
employed at the Gorham campus of the University of Southern
Maine responded on occasion to requests from the Town of
Gorham Police Department for assistance in matters occurring
outside the limits of property owned by or under the control
of the University.
5. On or about August 8, 1978, the University issued written
directives prohibiting the University Police Officers from
exercising their authority except within the limits of the
property owned by or under the control of the University.
DECISION
Local 48 charges that the University violated 26 M.R.S.A. 1027(1)(A),
(B), and (E) by taking the unilateral action of prohibiting Police Officers
at the Gorham campus from assisting other police departments in matters occurr-
ing off-campus.[fn]1 The University urges that it did not violate Section
1027 because the jurisdictional authority of University Police Officers is not
a working condition within the meaning of 26 M.R.S.A. 1026(1)(C), but rather
is a matter governed and limited by statute.
As more fully discussed below, we conclude that the University committed
no violation when it decreed that University Police Officers could no longer
assist other police departments in off-campus matters. We consequently must
order that Local 48's complaint be dismissed.
1. The alleged violation of 26 M.R..S.A. 1027(1)(E). The University
argues that the complaint must be dismissed because the jurisdictional
authority of University Police Officers is governed by statute and is there-
fore a non-negotiable matter. The statutory provision which governs this case,
according to the University, is Section 8-A of Chapter 532 of the Private and
Special Laws of 1865, as amended by Chapter 544 of the Public Laws of 1971:
"The trustees of the University of Maine may appoint persons
to act as policemen who shall, within the limits of the
property owned by or under control of the university possess
all of the powers of policemen in criminal cases."
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1 Local 48 also alleged in its complaint that the University violated
Section 1027(1)(A), (B), and (E) by disciplining a University Police Officer
who assisted the Gorham Police Department in an off-campus matter subsequent
to issuance of the University's prohibition. The parties state in their
Stipulation that this allegation is dismissed with prejudice, however. We
accordingly will not consider the allegation.
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This argument is not persuasive because it misconceives the thrust of
Local 48's complaint. Local 48 is not asking that the University bargain over
the jurisdictional authority of its Police Officers, but rather is complaining
that the University has unilaterally discontinued the practice of permitting
Officers to assist local police departments off-campus. As Local 48 correctly
argues, the statutory language relied upon by the University nowhere prohibits
off-campus assistance by University Police Officers, acting under and subject
to the authority of the local department being assisted. We agree that the
authority of University Police Officers is limited to the property owned by or
under the control of the University, but this fact is not dispositive of the
question whether the University has unilaterally changed the Officers' working
conditions.
What is fatal to Local 48's charge is the fact that the University's
action had negligible effect on the Officers' wages, hours and working
conditions. These are the subjects about which the University is obligated to
bargain under 26 M.R.S.A. 1026(1)(C). See 26 M.R.S.A. 1027(1)(E). The
fact that the practice of off-campus assistance was discontinued is not by
itself a violation of Section 1027(1)(E). It must be shown that discon-
tinuance of the practice had some effect on the Officers' wages, hours and
working conditions before the discontinuance can be found to be a violation.
The University's directives, issued subsequent to Local 48's certifica-
tion as the Officers' bargaining agent, in essence restricted the geographical
area in which the University provided its police services. The duties
performed by the Officers remained exactly the same, and the University's
action had no effect on the Officers' wages or fringe benefits, no effect on
the number of Officers employed by the University, and no effect on the
Officers' hours of work. In light of this lack of a tangible effect on wages,
hours and working conditions, we cannot agree that the practice of assisting
other departments off-campus was an integral part of the Officers' working
conditions. While the practice was a duty which the Officers occasionally
performed, the discontinuance of the practice simply had no effect on the
matters about which the University must bargain.
In short, we conclude that the University may restrict a service it
provides without first bargaining the restriction with an employee bargaining
agent, when the restriction in services has no effect on the employees' wages,
hours and working conditions. If the University's restriction of its police
services results in a reduction in force or has any other effect on wages,
hours and working conditions in the future, the University will of course be
obligated to bargain over these effects. See, e.g., Saco-Valley Teachers
Association v. MSAD #6 Board of Directors, MLRB No. 79-56 at 5 (1979).
In the present case, we conclude only that since the University's unilateral
action had no impact on the Officers' wages, hours and working conditions,
the action did not violate Section 1027(1)(E).
2. The alleged violation of 26 M.R.S.A. 1027(1)(A) and (B). Local 48
also alleges in its complaint that the University's action violated Section
1027(1)(A)
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and (B)[fn]2. A finding of a violation of Section 1027(1)(A) does not turn on
the employer's motive or on whether the interference or coercion succeeded or
failed. The test for a violation of Section 1027(1)(A) is whether the
employer has engaged in conduct which may reasonably be said to tend to
interfere with the free exercise of employee rights guaranteed in 26 M.R.S.A.
1023. Teamsters Local 48 v. University of Maine, M.L.R.B. Nos. 78-16 and
78-20 at 8 (1979), appeal docketed, No. CV-79-405 (Kennebec County Super. Ct.
July 13, 1979); Cooper Thermometer Co., 154 N.L.R.B. 502, 503, n.2 (1965).
Similarly, we will find a violation of Section 1027(1)(B) in the absence
of proof of anti-union motivation if it can reasonably be concluded that the
employer's discriminatory conduct was inherently destructive of important
employee rights. Teamsters Local 48 v. Town of Oakland, M.L.R.B. No. 78-30
at 3 (1978); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
We do not see that the University's action can reasonably be said to tend
to interfere with the Officers' representational and bargaining rights set
forth in Section 1023. The fact which could suggest that the prohibition of
off-campus assistance might have tended to interfere with the Officers' rights
is that the prohibition came approximately one week after the Officers elected
Local 48 as their bargaining agent. In addition, the record does not show
whether the University had legitimate reasons for discontinuing the practice
of off-campus assistance, and, if so, whether these reasons were made known to
the Officers.[fn]3
Given that the prohibition came on the heels of the bargaining agent
election, and that the Officers may have been unaware of any legitimate
reasons for the prohibition, it is conceivable that the Officers could have
viewed the prohibition as a "message" that the University was displeased with
the organizational activities and intended to "crack down" on the Officers.
Such a "mesesage" obviously could interfere with the free exercise of the
Officers' bargaining rights. See, e.g., Teamsters Local 48 v. University of
Maine, supra at 11-12.
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2 Neither Local 48 nor the University directly address the alleged
violations of Sections 1027(1)(A) or (B) in their briefs. While our
usual practice is to treat allegations not argued on brief as being
withdrawn, see, e.g., Teamsters Local 48 v. City of Auburn, M.L.R.B.
No. 79-41 at 4 (1979), we will indicate why we think there have been no
violations of Section 1027(1)(A) and (B) in this case.
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3 Local 48 attached to one of its briefs as proposed exhibits documents
which might show that the University had a legitimate reason for
discontinuing the practice, and that this reason was made known to the
Officers. The University objected to the admission of these documents,
however. We cannot admit into evidence unsupported and untested documents
attached to a brief when objection to such admission has been raised.
Rumford School Department v. Rumford Teachers Association, M.L.R.B. No.
79-15 at 6 (1979), appeal docketed, No. CV 79-478 (Kennebec County Super.
Ct. Aug. 21, 1979). We consequently must disregard all proposed exhibits
attached to Local 48's brief.
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We decline to infer on the basis of the facts stated above that the
University's action tended to interfere with the Officers' Section 1023 rights,
however. The record contains no indication of how the Officers viewed the
prohibition of off-campus assistance. The fact that the prohibition was
handed down shortly after the officers selected a bargaining agent is insuf-
ficient, in our opinion, to establish either that the University intended the
prohibition to be a "message," or that the Officers viewed it as such. The
same is true of the fact that the Officers may have been unaware of any valid
reasons for the prohibition, even when this fact is considered in conjunction
with the timing of the prohibition. Because the facts before us are
inadequate to support an inference that the prohibition tended to interfere
with the free exercise of the Officers' rights, we cannot conclude that the
University violated Section 1027(1)(A) when it prohibited the Officers from
assisting local police departments off-campus.
As for the alleged violation of Section 1027(1)(B), we note that there
is no evidence that the prohibition resulted in any discrimination in regard
to the Officers' terms and conditions of employment. As we previously found,
the prohibition did not affect any terms and conditions of employment. Even
if there was evidence of discrimination, there is no evidence of anti-union
motivation. Since we cannot reasonably conclude that the prohibition of off-
campus assistance was inherently destructive of important employee rights,
anti-union motivation would have to be proved in order to make out a violation
of Section 1027(1)(B). For all of the foregoing reasons, we conclude that the
University's prohibition did not result in a violation of Section 1027(1)(B).
ORDER
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 1029, it is ORDERED:
That the prohibited practice complaint filed November 9, 1978
by Teamsters Local 48 against the University of Maine is
DISMISSED.
Dated at Augusta, Maine this 17th day of October, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Don R. Ziegenbein
Employer Representative
/s/________________________
Wallace J. Legge
Employee Representative
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