STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-46 _________________________________ ) 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. ) _________________________________) 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 -1- ______________________________________________________________________________ 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, -2- ______________________________________________________________________________ 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 ____________________ 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. -3- ______________________________________________________________________________