International Brotherhood of Police Officers v. City of Lewiston, No. 94-08, Interim Decision, April 21, 1994, Decision and Order, Aug. 23, 1994 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-08 Issued: April 21, 1994 ______________________________ ) INTERNATIONAL BROTHERHOOD OF ) POLICE OFFICERS, LOCAL 545, ) ) Complainant, ) ) INTERIM DECISION v. ) ) CITY OF LEWISTON, ) ) Respondent. ) ______________________________) This interim decision concerns the March 15, 1994, request of the City of Lewiston (City) that the International Brotherhood of Police Officers, Local 545's (IBPO) complaint be dismissed, for failure of the IBPO to file its brief pursuant to a briefing schedule established at adjournment of the December 16, 1993, evidentiary hearing. At the conclusion of the hearing the parties expressed a desire to submit written briefs and to refrain from oral argument. The schedule, agreed to commence upon receipt of the transcript of the proceeding, called for an initial brief postmarked in thirty days, a response brief postmarked in thirty days thereafter and a reply brief postmarked after fourteen further days. On January 14, 1994, the Board's Hearings Reporter transmitted the transcript and, by cover letter, reiterated the briefing schedule. On January 21, 1994, the Hearings Reporter wrote the parties advising them of the Board's receipt of the returned certified mail receipt, establishing delivery of the transcript on January 18, 1994, and stated that "Mr. Phillips' main brief is due to be postmarked no later than February 17, 1994." On February 23, 1994, the Board received a letter from Peter Phillips purporting to confirm an extension, to February 25, 1994, of the time within which to file its initial brief. The letter asserts that the City assents to the extension. On March 15, 1994, the Board received a letter from -1- the City requesting that the IBPO's complaint be dismissed because the posthearing brief had not yet been tendered. The City's letter asserts that the City had agreed by phone that the IBPO might file its brief on March 7, 1994, but that neither it nor the Board ever received either a written copy of the request for further time, or the IBPO's brief. The City asserts that Board Rule 4.08(B) authorizes the Board to dismiss the complaint of the IBPO for "failure . . . to file a brief required by the presiding officer of a[n] . . . evidentiary hearing." On March 22, 1994, the Board received the IBPO's initial brief, with a cover letter which states, in pertinent part, as follows: In response to the City's "motion" to dismiss dated March 14, 1994, and received in this office on March 17, the Union respectfully requests that it be denied. At no time has the Union elected to "abandon" its prohibited practice charge and in no way should my delay in forwarding the Union's brief be perceived as any reluctance on the Local's part to pursue the case. On the contrary, the Local is more committed than ever to seek redress in this forum. Unfortunately, I was under the mistaken impression that the City was not opposed to me taking the time I needed to complete the brief. I was also mistaken in my estimation of how long it would actually take me to complete it as well as remiss in not calling again to formalize a further extension. For the record, I do recall requesting on or about February 25, and not on March 4, the extension to March 7. In any event, with that being said, the Board should accept the Union's brief and give it the due consideration it deserves. The City has suffered no cognizable prejudice because of the delay. There is no back pay accruing, nor has it been alleged that the operation of the department has been adversely affected. It is the Union that continues to endure the City's illegal action. At no time during any of the conversations between myself and City's counsel did I indicate that this matter was trivial, insignificant or that the Union had any intention to abandon its claims. The Union did not proceed lightly in this matter and contends that its significance warrants a thorough adjudication on the merits. Unfortunately, the City does not share the Union's belief in the seriousness of such a charge -2- being filed and pursued. Indeed, when I spoke with City Counsel Daniel Stockford on March 17 regarding the March 14 letter, I was informed that our case (sic) "frivolous" and that the City should not have to be put to the expense of writing a response brief. Of course, the City remains free to choose whether or not to respond to the Union's brief and the allegations against them. Otherwise, this hardly rises to a level of prejudice against the City case. In respect to Rule 4.08(B) cited by the City as a basis for dismissal, to the best of my recollection the Union was not being "required" or "ordered" to submit a brief, but had the option to do so. At the conclusion of the hearing, Chairman Dawson gave the parties the option on how they wished to proceed (Tr. 94, lines 23- 25) and indicated he was giving a lot of freedom regarding the schedule for filing briefs. (Tr. 96, line 10) Nevertheless, should the Board elect not to accept the Union's brief because of the delay, the record still remains from the hearing from which a decision can be rendered. On March 25, 1994, the Board's Executive Director notified the parties that the Board would consider the motion to dismiss on April 12, 1994. The notice required any additional written argument to be filed by April 5, 1994. No further written argument was filed. Neither party requested oral argument before the Board. On Tuesday, April 12, 1994, the Board, consisting of Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Alternate Employee Representative Gwendolyn Gatcomb, considered the issues raised by the City's Motion to Dismiss and the IBPO's request for denial of its motion. DISCUSSION Board Rule 4.08(B) permits but does not require the Board to dismiss a complaint where a brief "required by the presiding [evidentiary hearing] officer" is not "filed." (Emphasis added). The brief in the instant case, albeit late, was "filed" and was not one "required" by the Board. We therefore lack authority to -3- dismiss the complaint due to the late filing of the IBPO's brief. Moreover, although we might reasonably refrain from considering arguments urged in a "permitted" brief filed so late as to prejudice the other party, no harm was substantiated here. Finally, although extension agreements reached by the parties may estop either party from urging that such agreements are ineffective to grant an enlargement, they do not bind the Board from taking action sua sponte. Agreements respecting continuance, postponement or enlargement must be submitted to and be approved by the Board. In light of the fact that no prejudice or harm was demonstrated by the City arising from the late filing of the IBPO's brief on March 22, 1994, and in light of the further fact that the brief was permitted and not required by the Board, we hereby DENY the Motion to Dismiss without further action. The briefing schedule shall be reinstated as previously established. The City's response brief is now due to be postmarked thirty days from receipt of this interim order. Issued at Augusta, Maine this 21st day of April, 1994. MAINE LABOR RELATIONS BOARD /s/___________________________ Peter T. Dawson Chair /s/___________________________ Gwendolyn Gatcomb Alternate Employee Representative Employer Representative Howard Reiche, Jr., filed a separate, dissenting opinion. -4- OPINION I dissent from the opinion rendered by my colleagues and would dismiss the complaint. Once the two parties agree on written briefs and the chairman approves that as the next step, it becomes the process to be followed. At that point, compliance with Rule 4.08(B) becomes a legal requirement and, depending on the identity of the noncomplying party, a violation results in either dismissal of the complaint or default of the respondent. Failure to comply with an established briefing schedule evinces unacceptable disrespect for the Board, the represented party and the opposing party. Issued at Augusta, Maine, this 21st day of April, 1994. /s/___________________________ Howard Reiche, Jr. Employer Representative -5- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-08 Issued: August 23, 1994 ______________________________ ) INTERNATIONAL BROTHERHOOD OF ) POLICE OFFICERS, LOCAL 545, ) ) Complainant, ) ) DECISION AND ORDER v. ) ) CITY OF LEWISTON, ) ) Respondent. ) ______________________________) This case began with the September 7, 1993, filing of a prohibited practice complaint with the Maine Labor Relations Board (Board), in which the International Brotherhood of Police Officers, Local 545, (IBPO) alleges that the City of Lewiston (City) has failed to bargain in good faith in violation of 26 M.R.S.A. 964(1)(E) (1988), and has interfered with, restrained and/or coerced its employees in violation of 26 M.R.S.A. 964(1)(A) (1988). More specifically, the complaint alleges that on June 1, 1993, the City by its Police Chief's Order No. 12 created a "specific assignment/specialty position" entitled "Evidence/Property Manager" with "evidence custody and security" duties previously "performed by each officer on an ad hoc basis." The complaint alleges that the Chief's Order No. 12 unilaterally "established [the] hours of work, functions/duties, and . . . manner of selection for the newly[-]created position." The complaint avers that on June 2, 1993, the IBPO unavailingly demanded of both the Chief and the City Administrator that the City bargain over these and other mandatorily negotiable matters. The City's September 29, 1993, answer avers that the parties' contract permits the unilateral issuance of Order No. 12, that the IBPO is by virtue of the doctrine of promissory and equitable estoppel prevented from demanding negotiation over General Order No. 12 and that the IBPO has waived any right to -1- demand negotiations. The City's answer requests the matter be deferred to arbitration. On October 8, 1993, Alternate Chair Kathy M. Hooke conducted a prehearing conference. Her October 28, 1993, Prehearing Conference Memorandum and Order which denies the City's deferral motion, is hereby incorporated in and made a part hereof. On December 16, 1993, the Board, consisting of Chair Peter T. Dawson, Employer Representative Howard Reiche, Jr., and Alternate Employee Representative Gwendolyn Gatcomb, conducted an evidentiary hearing at which all parties were afforded the opportunity to present evidence and argument. At adjournment of the hearing an agreed briefing schedule for original, response and reply briefs was established of thirty, thirty and fourteen days, respectively, from the dates of postmarking of the transcript, original and response briefs. The transcript was completed on January 13, 1994. On March 15, 1994, the City filed a request that the IBPO's complaint be dismissed for IBPO's failure to file a posthearing brief in accordance with the mutually-agreed schedule. The IBPO's brief was ultimately filed on March 22, 1994. On April 21, 1994, the Board issued an Interim Order denying the City's request for dismissal, and reinstituting the briefing schedule. The City's responsive brief was filed on May 24, 1994, and the IBPO declined to file a reply brief by letter filed with the Board June 6, 1994. The City is represented in this matter by Attorney George S. Isaacson. The IBPO is represented in this matter by Attorney Peter C. Phillips. The Board deliberated the case on July 11, 1994. JURISDICTION The City is a public employer within the meaning of 26 M.R.S.A. 962(7) (1988). The IBPO is the bargaining agent of a unit of the City's law enforcement employees, within the meaning of 26 M.R.S.A. 962(2) (1988), which includes Patrol -2- Officers and Detectives. The IBPO has alleged that the City has committed prohibited practices proscribed by 26 M.R.S.A. 964(1)(A) and (E) (1988), during the six-month period immediately preceding the filing of the charge. See 26 M.R.S.A. 968(5)(B) (1988). The Board has jurisdiction to hear and adjudicate these matters by virtue of 26 M.R.S.A. 968(5) (1988). POSITIONS OF THE PARTIES The IBPO contends that the unilateral initiation of a single classification with evidence/property security responsibilities constitutes an unlawful abandonment of the parties' past practice which included evidence handling/storage responsibility by all officers, and departmental assignment of a detective as "evidence technician." The IBPO contends that initiation of the Evidence/Property Manager classification is not covered by Article 5, Section 4, of the parties' agreement, which permits the employer to "create and assign certain employees to crime prevention, proactive, reactive and selective enforcement programs . . . by general order [after] . . . offer[ing] to meet and consult, but not negotiate, with the Union with respect to the contents of such general order and its impact on employees." The IBPO asserts that it has not waived its right to bargain by contract, or otherwise. The IBPO contends that the creation of the Evidence/Property Manager assignment unilaterally impacted employees' hours of work, pay and promotional opportunities. The City contends that it met and consulted with the IBPO, and that negotiation was not required. The City contends that its actions were consistent with the provisions of the parties' agreement and the parties' past practice. The City contends that the only issue before the Board is whether contract Article 5, Section 4 applies to the creation of the Evidence/Property Manager position. -3- FINDINGS OF FACT The IBPO is an employee organization having as its primary purpose the representation of employees in collective bargaining matters with their employer. The IBPO represents a collective bargaining unit of the law enforcement employees of the City of Lewiston which includes Patrol Officers and Detectives. Contracts in effect between the City and IBPO (the parties) during the period July 1, 1991, through June 30, 1992, and during the period July 1, 1992, through June 30, 1994, contain the following language in Article 5, HOURS OF WORK, Section 4, Other Assignments: The employer may elect to create and assign certain employees to crime prevention, proactive, reactive and selective enforcement programs such as, but not limited to, a selective enforcement team. The creation of such programs shall be by general order which shall describe the program's mission and define the selection, tenure, hours of work and duties and responsibilities of those employees assigned to it. Prior to the issuance of such general order, the employer shall offer to meet and consult, but not negotiate, with the Union with respect to the contents of such general order and its impact on employees and shall not issue said order until ten (10) days after communicating said offer to the Union. In determining the assignment of employees to said program, the employer shall solicit volunteers for said program assignment and shall consider all those having expressed an interest therein. Assignments to and removal from said program shall be in the discretion of the employer and shall not be subject to grievance. Provisions containing language identical or substantially identical to Article 5, Section 4 have been in the parties' agreements since 1987. Chief Laurent F. Gilbert, Sr. was on the City's Police Department's negotiating team when Article 5, Section 4 was initiated as a contract provision. Since the language of Article 5, Section 4 was included in the parties' agreements the City has created the following positions pursuant to it: March 1990 - Drug Abuse Resistance Education Officer; March 1991 - Community Oriented Policing Team; -4- March 1992 - Police Community Enforcement Team; June 1992 - Child Emergency Response Coordinator; February 1993 - Crime Prevention/Community Relations Officer. Selective Enforcement Teams are composed to deal with specific areas such as prostitution and drugs, and are comprised of one supervisor and Patrol Officers assigned in nine-month rotations. As is the case with members of the P.A.C.E. unit, Selective Enforcement Teams have indefinite existence and rotational memberships. When the first Selective Enforcement Team originated no one volunteered and officers were ordered assigned to it. The City's personnel board approves new departmental job classifications but does not take action on assignments. The job classifications of the Department correspond to the ranks of Patrol Officer, Detective, Sergeant, Lieutenant, Captain, Major and Chief. "Patrol" and "Detective" also constitute assignments within the rank of Sergeant. The selection process for the positions of Detective rank and above includes a written test and the conversion of evaluations and test scores to a single numerical rating. The ten applicants receiving the highest ratings appear on a list. The top five get an interview with a board of supervisors who propound technical questions. The Chief then selects one or two officers depending on the number of openings. The subject assignment was the result of only two applications and the consequent withdrawal of one of those. For the last few years the Department has been seeking the approval of the Commission on Accreditation for Law Enforcement Agencies (CALEA). In order to satisfy CALEA standards and obtain accreditation the City has been revising its policies and procedures. Sergeant Daniel Pelletier, the Department's Accreditation Manager, who is responsible for diagnosing insufficiencies and developing satisfactory departmental policies and procedures, notified the Chief by memo dated 4/15/93 that the Department was in noncompliance with thirteen of the fifteen -5- CALEA evidence standards. That memo states: In reviewing our present evidence system vis-a-vis standards required by CALEA (Chapter 84) for accreditation, some drastic changes must be implemented if we wish to comply with the standards. Of the 15 standards in Chapter 84 dealing with evidence and its management, the Department is not-in-compliance with 13 of them. I quote to you from a concepts and issues paper published by the Law Enforcement Policy Center of the Bureau of Justice Assistance and the I.A.C.P. [(International Association of Chiefs of Police)] "Failure of agencies to establish effective and efficient systems for the management and security of evidence can and has led to civil and criminal charges against officers and the inability of the criminal justice system to successfully prosecute criminal offenders." From a prosecutorial standpoint any evidence that is presently in the Patrol Division's evidence area, if challenged in court, will be considered contaminated and therefore of no evidentiary value. This is so because our present system does not have the necessary controls and safeguards to prevent access as required by standard 84.1.9. Such lack of controls can and has led to the tampering with, destruction and/or loss of, and even theft of evidence. The proper chain of custody can never be maintained by our present system, thereby rendering our evidence as inadmissible in court. Further our system lacks the proper checks on itself as required by standards 84.1.5, 84.1.7 and 84.1.8, to ensure the integrity of the system itself. As you well know, we are also plagued with the ever present disposal dilemma. Standard 84.1.14 requires promptness in the disposal or return of items of evidence. Our evidence records tracking system, as required by standard 84.1.15, is virtually non-existent. I could go on, but I think you have the picture by now. In order to address these concerns, I recently convened a meeting with all Division Commanders, Det. Harmon, who handles C.I.D. evidence and Off. Chamberlain, our -6- computer coordinator. The unanimous consensus was that our evidence system is totally inadequate. In order to correct this very serious deficiency we recommend that you reassign one person from the patrol ranks and designate that individual as Evidence Custodian as required by standards 84.1.2 and 84.1.3. I am presently in the process of drafting our Standard Operating Procedure on evidence control and management which shall be in compliance with CALEA standards only if we can incorporate the Evidence Custodian position. As you know, failure to comply with the standards will result in the denial of accredited status. We have a very serious problem in terms of evidence management and to correct this problem will be a major undertaking. I urge your prompt and favorable decision on this recommendation. In response to that memo the Chief asked Sgt. Pelletier to develop a job description for the proposed assignment. After approving Sgt. Pelletier's draft job description the Chief met on May 20, 1993, with IBPO Secretary Chamberlain. In attendance were the Chief, Pelletier, Chamberlain, the Personnel Director and the Deputy Chief. Demotta and IBPO Vice President Whalen were unable to attend the scheduled meeting. Chamberlain stated that he would take all the matters discussed back to the IBPO for consideration. Chamberlain meets regularly with the Chief in his capacity as the Computer/Training Coordinator. During the Chief's meeting with Chamberlain on May 20, 1993, the new position's hours of work and days of work were indicated. Chamberlain briefed Demotta on the meeting with the Chief. He related the Chief's position that Article 5, Section 4 applied. When the Chief meets with representatives of the IBPO the other departmental participants are typically the Deputy Chief or one of the Captains. Demotta, the usual IBPO participant in these meetings, typically takes along the IBPO Vice President or someone else. IBPO Secretary Chamberlain has no authority to reach an agreement on behalf of the IBPO. Demotta has been an IBPO bargaining team member during the -7- last four negotiations. Demotta oversees the daily operations of the IBPO local, meets with the Department's representatives on any problems affecting the IBPO and acts as the head of the IBPO's grievance committee. The Chief met with the negotiating committee of the IBPO when he "met and consulted" with respect to the September 1990 creation of the Computer/Training Coordinator job. Demotta feels that the previous creation of the Computer/Training Coordinator position did not fall within the Article 5, Section 4. Also around May 20, Chief Gilbert gave Demotta the Property/Evidence Manager job description, asked Demotta to look it over and to get back with him. Prior to June 1, Demotta and the Chief discussed the new assignment and whether the Chief had the right to create the position. Demotta told the Chief he thought the IBPO could not "allow something like this." On May 28, 1993, Demotta issued a memo to Gilbert regarding the position of Property/Evidence Manager. His memo states: OFFICER CHAMBERLAIN BRIEFED ME IN REGARDS TO THIS NEW POSITION AND AFTER CHECKING OUR PRESENT CONTRACT ARTICLE 5 SEC 4. THIS NEW ASSIGNMENT IS NOT A PROACTIVE OR REACTIVE ASSIGNMENT NOR IS IT CRIME PREVENTION, OR SELECTIVE ENFORCEMENT. ACCORDING TO OUR CURRENT CONTRACT THIS MAKES THIS NEW ASSIGNMENT A NEGOTIABLE ITEM, AND THEREFORE WE URGE YOU TO CEASE POSTING THIS UNTIL SUCH TIME AS WE CAN NEGOTIATE IT. IF YOU WOULD LIKE TO TALK TO ME ABOUT THIS PLEASE CONTACT ME. The Chief made no response at that time, and Demotta has to date received no formal response from the Chief. Demotta admits that if Article 5, Section 4 applies to this position only a requirement to meet and consult applies and that the City has met and consulted sufficiently to satisfy any obli- gation to meet and consult. The City met and consulted but did not negotiate over the creation of the Property/Evidence Manager. -8- On June 1, 1993, Chief Gilbert issued General Order No. 12 which reads: In accordance with Article V, Section 4 of the Collective Bargaining Agreement between the Department and I.B.P.O. Local 545, the Department is seeking interested candidates for assignment to the position of Evidence/Property Manager. (see attached job description) Generally, hours of work shall be Monday through Friday from 0830 to 1630 hrs. with a one-half hour lunch break. Interested candidates are asked to submit a letter of application and complete resume to the Chief of Police by no later than 0830 hrs. on June 7, 1993. Letters of application shall be utilized as one of the selection criteria and should reflect the candidate's analysis of the position's job description, writing skills and organizational abilities. If anyone requires any additional information regarding this position, please contact Sgt. Pelletier. Demotta first saw General Order No. 12 posted on the general bulletin board located in the classroom on the second floor of the police station. That location is the usual one for postings for vacancies and promotions. Demotta felt the position was neither community oriented, proactive, or reactive and that it therefore did not meet the contract requirements. In Demotta's opinion institution of the position "changes the working conditions of the officer to a 5 day [per] week straight day shift resulting in the loss of 15 or 17 days off per year without a wage increase." Demotta also believes that, instead of an assignment, the job should have been a promotion and been posted as such so that everyone "had the opportunity to put in for it as a promotion rather than as a special assignment." Demotta wrote and posted a short memo of his own in response to the position posting asking members not to volunteer for the position until the matter was cleared up. Promotions are governed by Article 12, Section 6 of the parties' agreement. The contract grievance procedure would have been available to redress -9- any violation of promotional opportunities. On June 2, 1993, Demotta wrote Gilbert as follows: This letter is in regard to general order #12 which your office recently distributed to the officers of the Lewiston Police Department. As you are aware Ch. 9A Sec. 965 of the Maine Laws requires management and the union to negotiate over wages, hours and working conditions. As general order #12 is a change in hours and working conditions the union hereby demands to bargain this general order #12 and that the City cease and desist from implementing this order until it has been fully bargained with the union. Please notify me so that a mutually convenient time can be arranged to bargain this matter. Demotta wrote City Administrator Robert Mulready, on the same day, as follows: As you may be aware, Chief Gilbert has recently posted for a new position for an EVIDENCE TECHNICIAN. Enclosed is a letter submitted to Chief Gilbert informing him that according to Maine Laws, Ch 9A Sec. 965, management and the union shall negotiate over wages, hours and working conditions. This new position at this time is a change in the working conditions and hours. As the union has made an attempt to negotiate this position, Chief Gilbert has shown no signs that he is willing to sit down and negotiate the position. If the posting of this position is not ceased immediately, proper papers will be filed with the State Maine Labor Board requesting such position be ceased until negotiated. I hope you will intervene in time to help us come to an adequate solution before having to file. Please contact me as soon as possible to set up a mutually agreed time to negotiate this position. Demotta received no response regarding either memo. The official job posting occurred after Demotta sent these letters. "The Lewiston Police Department has been obtaining [and] -10- seizing evidence throughout its history." It has been a past practice of the Department prior to June 1 that "Patrolmen, as part of their regular functions, played a critical role in seizing [evidence] and keeping track of [evidence] and securing it throughout the criminal [justice] process." The IBPO does not dispute that aspects of this practice have been poorly accomplished. At some indefinite point prior to the mid 1980's Detective Charles Frazier was employed as an Evidence Technician. Frazier, who received Detective's pay, which is 10 percent higher than that of Patrolmen, worked an alternating two week schedule of Monday through Friday, day and then night watches. Currently Patrol Officers work 3 shifts: a day watch during the hours 8:00 a.m. to 4:30 p.m., a night watch 4:00 p.m. to 12:30 a.m. and a morning watch during the period 12:00 a.m. to 8:30 a.m. Detectives presently work the day watch with one night watch of 1:30 to 9:30 a.m. every few weeks. From 1973 until the mid- eighties Detective Frazier's primary function was the investiga- tion of check cases. He also performed evidence custody functions as they existed at that time. After Detective Frazier's departure another Detective assumed the evidence- handling responsibilities. For an undefined period of time a Captain possessed these responsibilities primarily because the safe was in his office. After Frazier's departure and prior to June 1, 1993, "officers handled their own evidence and it if was a serious crime it [(the evidence)] was brought downstairs to a locker where someone from the detectives' bureau would handle it such as a gun . . . that was involved in a shooting or anything of that nature. Other than that the officers would bring their own evidence to their own evidence area [within a secured evidence room] and they'd handle it themselves." Institution of the Property/Evidence Manager position as well as of the Community Officer position are steps which have been taken to meet the requirements for CALEA accreditation. The primary responsibilities of the Property/Evidence Manager are maintaining the evidentiary chain of custody, maintaining the -11- integrity of evidence, testifying in court respecting the custody and integrity of evidence, and evidence disposal. With the institution of this position officers now leave their evidence in small lockers, from which the Evidence Manager transfers it to the evidence room. Access to the evidence room is limited to three individuals. Access is primarily exercised by the Evidence Manager. The Evidence Manager functions as a security guard for collected evidence; inventorying and storing it. Submitting officers still fill out an inventory sheet in detail upon submitting evidence. The Patrol Officer who has been assigned as the Property/Evidence Manager has hours similar to Detectives with the exception of having no night duty. Other bargaining unit positions with weekday hours identical to the subject position include the Computer Coordinator, the Community Oriented Officer and, with the exception of his call-in duties, the Child Emergency Response Coordinator. The assignment of the duties of Property/Evidence Manager was given to a patrol unit member. That Patrol Officer has received no increase in wages. The Patrol Officer occupying the Property Evidence Manager position works on approximately 16 additional days annually and did not serve a probationary period in the new assignment. The term "proactive" encompasses crime prevention activities, such as are performed by the Drug Abuse Resistance Education Officer, the Crime Prevention Community Relations Officer and the Child Emergency Response Coordinator. The term "reactive" encompasses the activities of the Police and Community Enforcement or Community Oriented Policing Team, the Selective Enforcement Team and would encompass a S.W.A.T. team. The Chief construes the Property/Evidence Manager's position to be both proactive (planning to assure admissibility of evidence in court) and reactive (in response to items having turned up missing or to -12- evidentiary items losing their integrity, and to the department's failure on thirteen of the fifteen CALEA standards). DISCUSSION The disposition of this matter turns on the question of whether contract Article 5, Section 4 applies to the creation and the impact of the assignment of the duties of the position of Property/Evidence Manager.1 If it applies, the complaint must be dismissed because there is no dispute that the City has discharged any duty to meet and consult with the IBPO. Article 5 requires only that the City offer to meet and consult. If Article 5, Section 4 does not apply, we must find that the City has committed an unlawful unilateral change in violation of the refusal to bargain prohibitions set forth in 26 M.R.S.A. 964(1)(E) (1988), for there is also no dispute that the City otherwise failed or refused to negotiate, within the meaning of 26 M.R.S.A. 964(1) (1988), the creation and impact of the assignment of the duties of the position with the IBPO. As is more fully explained below we conclude that any right to negotiate either the creation or the impact of the assignment of the duties of the position of Property/Evidence Manager is waived by contract Article 5, Section 4. We are required to interpret the provisions of the parties' contract, in this case, to determine whether the City's actions constitute a "refusal to bargain vel non." See State v. MSEA, 499 A.2d 1228, 1230 (Me. 1985). Article 5, Section 4 empowers the City to "create and assign certain employees to crime prevention, proactive, reactive and selective enforcement programs." (Emphasis added). Upon consideration of each portion of this article and its applicability to the actions of the City herein, we find as follows. With specific regard to the City's contention that creation of and assignment to this position _________________________ 1The IBPO does not charge that the City has failed to comply with any substantive provision of Article 5, Section 4. -13- constitutes "crime prevention,"2 we reject the City's argument to the effect that good evidence methods beget successful prosecutions, which prevent repeat offenses. The same logic to greater or lesser degree may be advanced respecting almost any aspect of law enforcement. Additionally, we find that creation of and assignment to this position has not been linked with any "special enforcement program." We do, on the other hand, find that creation of and assignment to this position falls within the ambit of that wide ranging portion of Article 5, Section 4 which addresses creation of and assignment to programs which are "proactive" and/or "reactive." The term "proactive" is defined as "serving to prepare for, intervene in or control an expected occurrence or situation, esp. a negative or difficult one; anticipatory." RANDOM HOUSE UNABRIDGED DICTIONARY, 1541 (2d. Ed. 1993) The definitions of reactive include "1. tending to react 2. pertaining to or characterized by reaction." RANDOM HOUSE, supra, at 1606. Finally, program may mean either "a plan of action to accomplish a specified end" or "a plan or schedule of activities, procedures, etc., to be followed." RANDOM HOUSE, supra, at 1546. The need for upgraded evidentiary procedures was highlighted in the course of activities undertaken by an officer assigned to CALEA accreditation, who reported to the Chief in mid-April that the Department was in noncompliance with thirteen of fifteen CALEA evidence standards. We find that this position was created and assigned to meet that need. We construe the language of Article 5, Section 4 to be broad enough to apply to a program to obtain and maintain accreditable evidentiary standards in the Department. The adjectives proactive and reactive as used in the parties' contract are not limited to programs aimed at particular crimes. _________________________ 2There is no record indication of the relative percentage, if any, of the City's law enforcement activities which are devoted to crime prevention, investigatory, apprehension, detention or prosecutory activity. -14- We interpret the parties' contract to contain a clear and unmistakable waiver of the right to bargain both the creation of the Property/Evidence Manager assignment and the impact of its creation and/or assignment upon the wages, hours and terms and conditions of bargaining unit employees. The IBPO's charge of unlawful refusal to bargain must, therefore, be dismissed. Additionally, since the City's actions are permitted by the parties' agreement and since no other conduct has been shown to have a reasonable tendency to interfere with the exercise of employee rights, the IBPO's charge of unlawful interference, restraint or coercion must also be dismissed. Accordingly, we issue the following order. 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) (1988 & Supp. 1993), it is hereby ORDERED that the IBPO's September 7, 1993, Complaint be, and hereby is, DISMISSED. Issued at Augusta, Maine, this 23rd day of August, 1994. The parties are hereby advised MAINE LABOR RELATIONS BOARD of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1993), to seek review of this decision and order by the Superior Court. To initiate /s/___________________________ such a review, an appealing Peter T. Dawson party must file a complaint Chair with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements /s/___________________________ of Rule 80C of the Maine Rules Howard Reiche, Jr. of Civil Procedure. Employer Representative Alternate Employee Representative Gwendolyn Gatcomb filed a separate dissenting opinion. -15- OPINION I dissent. "One of the law enforcement officer's most important functions is to provide evidence against criminal offenders so that they may be dealt with by the courts as justice requires." 16-1 Maine Law Enforcement Officers Manual, John N. Ferdico (1993-1995 Edition). Evidence handling, including testimony respecting chain of custody and evidence integrity, has always been and continues to be traditional law enforcement work performed by Patrol Unit employees of the City of Lewiston. It is only now more concentrated with the unbargained creation of the new position of Property/Evidence Manager. This so-called program does not react to or anticipate any variety of crime, is not a special enforcement effort aimed at any crime(s) and, as the majority points out, cannot realistically be argued to constitute a method of crime prevention. The interpretation accorded this contract provision by the majority would permit the Chief to devise any program for any purpose and to assign any unit member thereto, without regard to the potential dramatic increase in scheduled workdays, or any reduction in the level of wages paid to employees historically occupying similar or identical positions. The evidence in this case clearly shows that the Chief has unilaterally changed the shifts and increased the number of work days of the employee assigned, without according the increase to Detective's wages, which previously inhered in the assignment of concentrated evidence handling responsibility. Not only is this action not a promotion as asserted by IBPO, it is the equivalent of a demotion. In effect the Board has interpreted this clause as a potential carte blanche waiver of impact bargaining by the IBPO. I do not find that waiver to be clearly and unmistakenly established in the facts of this case. See Teamsters Union Local 340 v. Aroostook County Sheriff's Department, No. 92-28, slip op. at 15 -16- (Me.L.R.B. Nov. 5, 1992). I think the Chief's actions complained of here constitute an unlawful unilateral change. Issued at Augusta, Maine, this 23rd day of August, 1994. /s/___________________________ Gwendolyn Gatcomb Alternate Employee Representative -17-