STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-53
Issued: August 6, 1981
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)
WESTBROOK POLICE UNIT OF LOCAL 1828, )
COUNCIL 74, AFSCME, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF WESTBROOK; WESTBROOK PUBLIC )
SAFETY COMMISSION, and JAMES GAGAN, )
CITY SOLICITOR, )
)
Respondents. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on May 6, 1981, by the Westbrook Police Unit of Local 1828, Council
74, AFSCME, AFL-CIO (Union). The Union alleges that the City of Westbrook and
the Westbrook Public Safety Commission did violate 26 M.R.S.A. 964(1)(E)
and (F) by unilaterally changing the promotions policy for the members of the
Westbrook Police Department without notifying or bargaining with the Union,
the employees' certified bargaining agent. The City of Westbrook and the
Westbrook City Solicitor filed a response to Council #74, AFSCME's complaint
on May 28, 1981; moving to dismiss said complaint, as it relates to the W
estbrook Public Safety Commission, on the grounds of failure of service of
process, and denying that the City's and the City Solicitor's actions violated
any provision of the Municipal Public Employees Labor Relations Act, 26
M.R.S.A. 961, et seq. (Act).
A pre-hearing conference on the case was held on May 29, 1981 Alternate
Chairman Donald W. Webber presiding. As a result of the pre-hearing
conference, Alternate Chairman Webber issued a Pre-Hearing Conference
Memorandum and Order, dated June 4, 1981, the contents of which are incor-
porated herein by reference.
A hearing was held on July 15, 1981, Chairman Edward H. Keith presiding
with Alternate Employer Representative Thacher E. Turner and Employee Repre-
sentative Wallace J. Legge. Council 74 was represented by Mary G. Morse,
field representative,
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and the City of Westbrook was represented by its City Solicitor James E.
Gagan, Esq. The parties were given full opportunity to examine and cross-
examine witnesses, introduce documentary evidence, and make argument.
JURISDICTION
Council 74 is the certified bargaining agent for all employees of the
Westbrook Police Department; except the Chief, captain, secretary, custodian,
matron, crossing guides, and all special officers. The City of Westbrook is
a public employer as defined in 26 M.R.S.A. 962(7). The jurisdiction of the
Maine Labor Relations Board to hear this case and render a decision and order
lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Maine Labor Relations Board (Board)
finds:
1. That the Complainant, Westbrook Police Unit of Local 1828, Council
74, AFSCME, AFL-CIO (Union), is and at all times relevant hereto has been the
certified bargaining agent for all the employees of the Westbrook Police
Department; except the Chief, captain, secretary, custodian, matron, crossing
guides, and all special officers.
2. That the City of Westbrook (Employer) is and at all times relevant
hereto has been a public employer as defined in 26 M.R.S.A. 962(7). James
Gagan, the Westbrook City Solicitor, is not a public employer, as defined in
the foregoing Statute, in the factual context now before the Board.
3. That there is no collective bargaining agreement currently in force
between the parties. The prior collective bargaining agreement covered the
period of July 1, 1977 until June 30, 1980. Thereafter, its terms were to
remain in effect until a new contract was agreed upon or it was terminated,
upon ten days written notice to the other party. The City, on July 9, 1980,
gave notice of termination which became effective July 21, 1980.
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4. That the collective bargaining agreement, mentioned in paragraph 3
hereof, contained a procedure to be followed in the promotional process.
5. That, prior to August 7, 1980, the Employer and the Union were
negotiating for a successor agreement to that which expired on June 30, 1980.
6. That, during said negotiations, the Employer's last best offer, in
regard to promotions, was that promotional policy is the exclusive province
of the Westbrook Public Safety Commission and that said policy could not be
negotiated.
7. That, on August 7, 1980, the parties reached impasse in the
collective bargaining process generally, including impasse over the issue of
promotional policy.
8. That, prior to October 13, 1980, the Assistant City Solicitor,
Michael D. Cooper, informed the Union that the City intended to fill a
promotional vacancy, which vacancy occurred after impasse had been reached,
in accordance with its proposal on promotional vacancies, outstanding at the
time that impasse was reached.
9. That in a letter from Mary Morse to Mr. Fitzpatrick, Chairman of the
Public Safety Commission, dated October 13, 1980, a meeting was requested for
the purpose of discussing the Commission's procedure and objecting to any
change.
10. That, on October 15, 1980, the Commission held a meeting that
designated one issue for discussion on their agenda as a change in police
department promotion procedure.
11. That, on November 3, 1980, in response to the Union's letter of
October 13, 1980, the Assistant City Solicitor wrote to the Union and asserted
the Employer's right to change police department promotion procedure.
12. That, on November 21, 1980, the Union responded to the Employer's
November 3, 1981, letter, requesting a meeting and voicing objections to the
Employer's police department promotion process.
13. That, on November 23, 1980, the Public Safety Commission met and
several members of the Police Unit attended said meeting. The meeting
adjourned with no resolution of the issue.
14. That, on November 28, 1980, oral interviews for a sergeancy promotion
were conducted.
15. That, on December 3, 1980, a promotion was made, pursuant to the
regulations of the Public Safety Commission but not in accord with the
provisions of the
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contract, mentioned in paragraph 3 hereof.
DECISION
The Respondents, City of Westbrook and James E. Gagan, City Solicitor,
in their response to the Union's prohibited practice complaint, moved to
dismiss said complaint as it relates to the Westbrook Public Safety
Commission. The grounds expressed in support of said motion, which were
again raised during the course of the hearing hereon, is that service of
process was not made upon either the chairman or upon any other member of
said Commission. The Union maintains that service upon Mr. Gagan, in his
capacity as City Solicitor, perfected service upon the Commission and upon
the City. At the hearing, Mr. Gagan waived any objections to the manner of
service upon the City, therefore, we need not address that issue.
Section 968(5)(B) of the Act provides that "[n]o such complaint shall be
filed with the executive director until the complaining party shall have
served a copy thereof upon the party complained of." In Greater Portland
Transit District v. Div. 714, Amalgamated Transit Union, MLRB No. 77-32
(December 29, 1977), we held that service of a prohibited practice complaint
upon a respondent's attorney, who has not been given express authority by his
client to accept services of process, did not constitute proper service, under
the foregoing section of the Act. There was no evidence presented concerning
the City Solicitor's prior express authority to accept service of process on
behalf of the Public Safety Commission, therefore, we are compelled to dismiss
the complaint as it relates to said Commission.
The parties, by oral stipulation during the course of the hearing hereon,
agreed that they reached impasse in their negotiations over the issue of
promotions policy on August 7, 1980, and they likewise agreed that the City
implemented its last best offer, concerning the promotions policy, after
impasse thereon had been reached: the Public Safety Commission followed its
rules in filling promotional vacancies. Our decision in Teamsters Local 48 v.
Town of Livermore Falls, MLRB No. 80-22 (August 20, 1980), is dispositive of
the issue now before us. In Livermore Falls, we stated:
"It is axiomatic that the unilateral change rule, see
State of Maine (Bureau of Alcoholic Beverages) v. Maine Labor
Relations Board, 413 A.2d 510 (Me. 1980), is inapplicable where
the parties have reached impasse, one of the four exceptions to
the rule. See, Maine State Employees Association v. State of
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Maine, MLRB No. 78-23 (July 1, 1978) at page 4, aff'd, State
v. M.L.R.B., Kennebec Super. Ct. CV-78-484 (August 7, 1979),
aff'd, 413 A.2d 510 (Me. 1980). Rather, in the event of a
bona fide impasse, a public employer is 'bound to either con-
tinue existing conditions or institute its last best offer' in
the collective bargaining process. Easton Teachers Association
v. Easton School Committee, MLRB No. 79-14 (March 13, 1979) at
page 4 n.2; see, N.L.R.B. v. Intercoastal Terminal, Inc., 286
F.2d 954, 47 LRRM 2629 (5th Cir. 1961). Thus, a public employer
may institute changes consistent with its current impasse bar-
gaining position, whether that position is reflected in a tentative
agreement or not." Livermore Falls, supra, at page 4.
In the case now before us, therefore, the City did not violate the Act when it
effected a change in the police department promotions policy by implementing
its last best offer in the collective bargaining process after impasse.
Recognizing that the Employer raised, as an issue in this case, that 969 of
the Act removes the promotions process administered by the Public Safety
Commission from the collective bargaining process and, therefore, any uni-
lateral change therein is not a prohibited practice: we decline to decide the
same, since we have already decided the merits of the case above.
The final issue raised by the Union's complaint is that the Employer's
change in the police department promotions procedure violates 964(1)(F) of
the Act. The Union presented no evidence even remotely suggesting that the
Employer had blacklisted it or its members from employment. Furthermore, the
Union did not argue the issue, when given an opportunity to do so at the
hearing. As is our rule, in connection with issues not argued in post-hearing
briefs, Teamsters Local 48 v. University of Maine, MLRB No. 79-37 (October 17,
1979), at page 4 n.2, we will deem this issue as having been withdrawn.
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. 968(5), it is hereby ORDERED:
That the prohibited practice complaint filed
on May 6, 1981 by the Westbrook Police Unit of
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Local 1828, Council #74, AFSCME, AFL-CIO, in Case
No. 81-53, be and hereby is dismissed.
Dated at Augusta, Maine, this 6th day of August, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Thacher E. Turner
Alternate Employer Representative
/s/____________________________________
Wallace J. Legge
Employee Representative
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