STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 86-05
Issued: January 14, 1986
______________________________________
)
TEAMSTERS LOCAL UNION NO. 48, State, )
County, Municipal and University )
Employees in the State of Maine, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF SOUTH PORTLAND and its Police )
Chief, Robert Schwartz, )
)
Respondents. )
______________________________________)
The question presented in this prohibited practices case is
whether the City of South Portland and its Chief of Police, Robert
Schwartz, (hereinafter referred to together as "Employer") violated 26
M.R.S.A. Sec. 964(1)(E) by: (1) requiring employees of the South
Portland Police Department to provide keys to their lockers to the
Employer and (2) creating two new supervisory employee positions in
the South Portland Police Department. The certified bargaining agent,
for a bargaining unit composed of all lieutenants and sergeants of the
South Portland Police Department, received notice of the Employer's
actions and did not demand that the Employer negotiate over the
substance and/or the impact of the decisions at issue. We hold that
the Employer's actions did not violate 26 M.R.S.A. Sec. 964(1)(E).
The prohibited practices complaint, filed pursuant to 26 M.R.S.A.
Sec. 968(5)(B) by Teamsters Local Union No. 48 ("Union"), was filed on
October 11, 1985. The Union's complaint alleged that the Employer's
actions violated 26 M.R.S.A. Sec. 964(1)(A), (C) and (E). The Employer
filed its answer on October 31, 1985, denying that its actions
transgressed any provision of the Municipal Public Employees Labor
Relations Act ("Act"), 26 M.R.S.A. ch. 9-A, presenting other defenses,
and moving to dismiss the Union's complaint.
A prehearing conference on the case was held on November 12,
1985, Alternate Chairman Donald W. Webber presiding. On November 18,
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1985, Alternate Chairman Webber issued a Prehearing Conference
Memorandum and order, the contents of which are incorporated herein by
reference.
A hearing on the case was conducted on December 18, 1985,
Alternate Chairman William M. Houston presiding, with Employer
Representative Thacher E. Turner and Employee Representative George W.
Lambertson. The Union was represented by its Secretary/Treasurer,
David L. Berg, who was assisted by Paul Swanson, Shop Steward for the
South Portland Police Department Command and Supervisory Unit. The
Employer was represented by William H. Dale, Esq., Corporation Counsel
for the City of South Portland. Having deemed all of the facts
included in the complaint to be true and together with admissions made
by the Union at the hearing, the Board was able to ascertain that the
complaint failed to state a claim upon which relief could be granted
by the Board.
JURISDICTION
Teamsters Local Union No. 48 is the certified bargaining agent,
within the definition of 26 M.R.S.A. Sec. 962(2), for a bargaining unit
composed of all lieutenants and sergeants employed by the South
Portland Police Department. The City of South Portland is the public
employer, within the definition of 26 M.R.S.A. Sec. 962(7), of the
employees mentioned in the preceding sentence. At all times relevant
hereto, Robert M. Schwartz has been the Chief of the South Portland
Police Department. Since the acts alleged concerning Schwartz are
said to have arisen out of and been performed by him in the course.of
his employment with the South Portland Police Department, Schwartz is
a public employer of the employees of the South Portland Police
Department. The jurisdiction of the Maine Labor Relations Board to
hear this case and to render a decision and order herein lies in 26
M.R.S.A. Sec. 968(5).
FINDINGS OF FACT
Upon review of the facts alleged in the Union's complaint
(assuming arguendo that all said facts have been established), the
documents admitted into evidence, and admissions made by the Union's
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representative before the Board, the Labor Relations Board finds:
1. Teamsters Local Union No. 48 is the certified bargaining
agent, within the definition of 26 M.R.S.A. Sec. 962(2), for a bargaining
unit composed of all lieutenants and sergeants employed by the South
Portland Police Department.
2. The City of South Portland is the public employer, within the
definition of 26 M.R.S.A. Sec. 962(7), of the employees mentioned in the
preceding paragraph.
3. At all times relevant hereto, Robert M. Schwartz has been the
Chief of the South Portland Police Department. Since the act per-
formed by Schwartz, which is part of the subject of this action, arose
out of and was performed by him in the course of his employment with
the South Portland Police Department, Schwartz is a public employer,
within the meaning of Section 962(7) of the Act, of the employees men-
tioned in paragraph 1 above.
4. On July 31, 1985, Chief Schwartz issued South Portland Police
Department General Order No. 43 to all of the the department's
employees. The body of the Chief's order stated:
Each officer in the department has been issued a locker
for the use of departmental issued equipment. Please
understand that there is no expectation of privacy to the
contents of the officer's lockers and that all lockers are
subject to periodic inspection by the Chief of Police or his
designee.
A lock has been provided for these lockers and any
officer wishing to place his or her own lock on the locker
may do so but will submit a duplicate key or leave the com-
bination with the Deputy Chief.
All officers will conform to this policy by September 1,
1985.
5. From the date of the issuance of the order cited in the pre-
ceding paragraph to the date of the hearing before the Labor Relations
Board, the Union did not demand that the Employer negotiate over the
substance and/or the impact of the decision to require the employees
to allow the Employer access to the employees' lockers.
6. On or about July 15, 1985, the City of South Portland decided
to create two new positions, a Utility Lieutenant and a Utility
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Sergeant, within the bargaining unit noted in paragraph 1 above.
7. On or about August 22, 1985, the City of South Portland,
acting through its Chief of Police, implemented the decision to
create two new positions, a Utility Lieutenant and a Utility Sergeant,
within the bargaining unit mentioned in paragraph 1, supra.
8. The creation of the positions noted in the preceding
paragraph had the following impact on the other employees in the
bargaining unit noted in paragraph 1 hereof:
a. A full-time supervisor was lost in the Detective
Division;
b. Detective Sgt. Roach, by the Employer's action, no
longer works a fixed Monday through Friday schedule.
He now has an uncertain schedule that changes from day
to day;
c. Detective Sgt. Roach, prior to the unilateral change,
was forbidden to work patrol overtime and now Detective
Sgt. Roach and Detective Lt. Austin are forced to work
patrol jobs and are currently on the force out list;
therefore, overtime is reduced for other unit employees;
d. Prior to the unilateral change, detective supervisors
were not allowed to work as uniformed shift commanders;
and now they are forced, reducing overtime for other
unit employees and endangering the lives of plain
clothes officers, whose identity was previously kept
confidential by their wearing plain clothes; and
e. Prior to the unilateral change, when uniformed shift com-
manders were on vacation, overtime was created; now, the
Employer schedules the Detective Lieutenant and the
Detective Sergeant to fill vacation slots leaving the
Detective Division unsupervised and reducing the amount
of available overtime for other unit employees.
9. At the hearing before the Labor Relations Board, the Union's
representative stated that, under the terms of the relevant collective
bargaining agreement, the Employer was authorized to make the decision,
mentioned in paragraphs 6 and 7 hereof, unilaterally. The Union
alleged, however, that the Employer violated the statutory duty to
bargain by unilaterally causing the impact of the decision noted in
paragraph 6 to accrue, as outlined in the preceding paragraph.
10. From the date of the decision mentioned in paragraphs 6 and
7 to the date of the hearing before the Labor Relations Board, the
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Union did not demand that the Employer negotiate over the impact of
said decision upon mandatory subjects concerning the other employees
in the bargaining unit mentioned in paragraph 1.
DECISION
Our review of the pleadings, documents, and admissions in this
matter has led us to conclude that the Employer's actions do not
"tend to interfere with the free exercise of employee rights under
the Act." Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30, slip
op. at 3 (Aug. 24, 1978); Maine State Employees Association v. State
Development Office, MLRB No. 84-21, slip op. at 8-9 (July 6, 1984);
aff'd. Maine State Employees Association v. State Development office,
499 A.2d 165 (Me. 1985). We have, therefore, dismissed the Union's
allegation that the Employer's actions violated 26 M.R.S.A.
Sec. 964(1)(A). Second, the Union has alleged that the Employer's con-
duct transgressed Section 964(1)(C) of the Act. We have repeatedly
noted that that section of the Act "is directed at the evil of too
much financial or other support of, encouraging the formation of, or
actually participating in, the affairs of the union and thereby poten-
tially dominating it." Teamsters Local 48 v. Town of Kittery, MLRB No.
84-25, slip op. at 4 (July 13, 1984). In this case, there was no
allegation that the Employer either participated in or otherwise
supported the activities of the Union. The Board holds, therefore,
that the Employer did not violate 26 M.R.S.A. Sec. 964(1)(C).
The Union averred that the Employer breached Section 964(1)(E) of
the Act by deciding to require the employees to allow the Employer
access to the employees' lockers and by failing to negotiate the
impact upon mandatory subjects of bargaining of the decision to create
new positions in the bargaining unit represented by the Union. At the
hearing, the Board indicated that it felt that the Union's failure to
demand bargaining over the Employer's actions might be dispositive of
the issue presented. Despite having been given the opportunity to do
so, the Union neither supplemented the allegations contained in the
prohibited practice complaint nor made an offer of proof which might
have persuaded the Board not to dismiss said charge. We hold that the
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Board's decision in Maine State Employees Association v. State of
Maine, MLRB No. 85-19, slip op. (Dec. 2, 1985) is controlling herein
and, therefore, we conclude that the Employer's actions, as plead, did
not violate 26 M.R.S.A. Sec. 964(1)(E).
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. Sec. 968(5)(C) (1974), it
is ORDERED:
That the prohibited practices complaint, filed on October 11,
1985, in Case No. 86-05, be and hereby is dismissed.
Dated at Augusta, Maine, this 14th day of January, 1986.
MAINE LABOR RELATIONS BOARD
/s/_____________________________________
The parties are advised of William M. Houston
their right pursuant to 26 Alternate Chairman
M.R.S.A. Sec. 968(5)(F) (Supp.
1985) to seek review of
this decision and order by
the Superior Court by filing /s/_____________________________________
a complaint in accordance Thacher E. Turner
with Rule 80B of the Rules Employer Representative
of Civil Procedure within 15
days of the date of the
decision.
/s/_____________________________________
George W. Lambertson
Employee Representative
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