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). -1- 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." ___________ 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. -2- 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) -3- 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. ____________ 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. ____________ 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. -4- 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 -5-