STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-46
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)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, ) DECISION AND ORDER
)
v. )
)
CITY OF BANGOR, )
)
Respondent. )
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Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine (Union) filed this prohibited practice
complaint on May 5, 1980. The City of Bangor filed its answer and motion to
dismiss on May 23, 1980. The complaint alleges that the City unilaterally
changed the duties of its police officers when it ordered them to work, under
threat of discharge, at the County Jail. The City answered that it acted, in
an emergency situation, within the terms of its existing collective bargaining
agreement with the Union. Further, it argued that the complaint should be
dismissed because the Union had failed to use the grievance procedure.
Alternate Chairman Gary F. Thorne conducted a pre-hearing conference on
June 27, 1980, after which he issued a Pre-Hearing Conference Memorandum and
Order of the same date, the contents of which are incorporated herein by
reference. The parties agreed to all the facts and submitted the case to the
Maine Labor Relations Board (Board) on briefs. The Union was represented by
Jonathan G. Axelrod, Esq.; the City, by Malcolm E. Morrell, Jr., Esq.
Both parties filed briefs.
JURISDICTION
Jurisdiction of the Board to hear and decide this case lies in Section
968(5) of the Municipal Public Employees Labor Relations Law (Act), 26
M.R.S.A. Sec. 968(5).
FACTS
The facts as stipulated by the parties and determined by the Board are as
follows:
1. The Union is the exclusive bargaining agent for all Police
Officers (Class 433) of the Bangor Police Department and a
public employee organization within the meaning of 26 M.R.S.A.
Sec. 968(5)(B) and 962(2); the City is a public employer within
the meaning of 26 M.R.S.A. Sec. 968(5), 962(7) and 964(1).
2. On April 11, 1980, the Chief of Police issued a memorandum
stating:
"It has been determined that an emergency situ-
ation exists at the Penobscot County Jail.
Members of the Bangor Police Department will
be detailed to assist there and these assignments
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will be considered City overtime payable at time
and one-half. This is deemed necessary to pre-
serve order and protect the public during emer-
gency."
The police officers were advised that a refusal to respond to
such assignment would be considered a failure to obey orders
and the employee would be subject to discharge.
3. The police officers did work at the County Jail as directed
and were paid overtime pursuant to the collective bargaining
agreement in effect between the parties from January 1, 1980,
to December 31, 1981 (Agreement).
4. There is no evidence that the Union requested to negotiate
the alleged unilateral change at any time.
5. Article 4 of the Agreement states, in part:
"Section 1. The duties of the Police Officers shall
be those juties that come under the jurisdiction of
the Chief of Police including the enforcement of City
ordinances, state and federal statutes, patrolling
of City streets for crime prevention and traffic
control and the preservation of life and property."
Article 30 of the Agreement states:
"Management Rights
Except as explicitly limited by specific provision
of this Agreement, the City shall continue to have
the exclusive right to take any action it deems
appropriate in the operation of the Police Depart-
ment and direction of the work force in accordance
with its judgment. Such rights shall include, but
shall not be limited to, the operation of the police
force, direction of the working forces, the right
to hire, to suspend or to discharge for just cause,
to change assignments, to promote, to reduce or
expand the working forces, to transfer, to maintain
discipline, to establish work schedules, and to
introduce new or improved methods or facilities."
Article 22 of the Agreement, Grievance Procedure, states in part:
"Section 3. If the grievance has not been adjusted
informally as above suggested it may be submitted
to the following procedure:
A. The steward . . . shall take up the grievance
or dispute with the Chief of Police within ten
(10) days after the date of the [controversy,
complaint, misunderstanding or dispute as to the
meaning or application of the specific terms of
the Agreement] or of the officer's knowledge of
of its appearance."
DISCUSSION
While it is preferable for the parties to resolve disputes through their
collectively bargained grievance procedure, the jurisdiction of the Board is
not displaced by the existence or use of such a procedure. Rather, where
necessary to adjudicate a prohibited practice, the Board may interpret a
contract, give effect to its terms, and proscribe conduct which is a
prohibited practice even though it is also a breach of contract remediable
through arbitration. See, N.L.R.B. v. Strong,
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393 U.S. 357, 70 LRRM 2100 (1969). Thus, since the grievance process is not
available, the Board will neither defer, see Collyer Insulated Wire, 192 NLRB
837, 77 LRRM 1931 (1971), nor dismiss the case on the City's motion, see 26
M.R.S.A. Sec. 968(5) A).
After a consideration of the merits, however, we conclude that the
complaint must be dismissed. It is uncontested that the Chief's assignment
was for the purpose of preserving order and protecting the public within the
City of Bangor. Article 4 of the Agreement states that the duties of the
police officers include the preservation of life and property within the
Chief's jurisdiction. Therefore, since the Chief's jurisdiction includes the
broad responsibility of protecting the public within the city,[fn]1 the
assignment of police officers for this purpose must be said to be within
the bounds of what the parties have agreed upon in advance when they executed
the Agreement. Accordingly, the City has not unilaterally changed working
conditions. The complaint is therefore dismissed.
Dated at Augusta, Maine, this 6th day of October, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Donald W. Webber
Alternate Chairman
/s/___________________________________
Wallace J. Legge
Employee Representative
/s/___________________________________
Don R. Ziegenbein
Employer Representative
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1 It is clear, on the basis of the Union's representations as to the Bangor
City Ordinances, that "the Police Chief is broadly 'responsible for the
enforcement and maintenance of law and order and the protection of public
safety, morals and welfare' (Ch. 11, Art. 13 Section 3-1) . . . ."
Complainant's Brief, page 3 and 4. In contrast, whether or not the County
Sheriff should have deputized the police officers, as argued by the Union, is
not an issue in the case.
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