STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 94-33
Issued: September 7, 1994
____________________________
)
TEAMSTERS UNION LOCAL 340, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
TOWN OF CAMDEN, )
)
Respondent. )
____________________________)
This case began with the January 27, 1994, filing of a
prohibited practice complaint with the Maine Labor Relations
Board (Board) in which Teamsters Union Local 340 (Teamsters)
alleges that the Town of Camden (Town) has failed to bargain in
good faith in violation of 26 M.R.S.A. 964(1)(E) (1988). More
specifically, the complaint alleges that in November and December
of 1993, during negotiations for a successor collective
bargaining agreement, the Town, without notice, unilaterally
changed a well-established past practice by permitting two non-
unit applicants to become candidates in the filling of a vacancy
in a sergeant's position. Additionally, the complaint alleges
that the Town allowed these two applicants to submit applications
prior to advertisement of the opening to bargaining unit members.
The complaint avers that the Teamsters unavailingly objected to
the alleged change in past practice.
The Town denies any existing past practice. The Town's
answer, by way of affirmative defense, requests the matter be
deferred to arbitration pursuant to a grievance filed by the
Teamsters on December 10, 1993. The Town asks for costs and
attorney's fees.
On March 24, 1994, Board Alternate Chair Kathy M. Hooke
conducted a prehearing conference. Her April 11, 1994,
Prehearing Conference Memorandum and Order, which denies the
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Town's deferral motion, is hereby incorporated in and made a part
hereof. On May 4, 1994, the Board, consisting of Alternate Chair
Pamela D. Chute, Employer Representative Howard Reiche, Jr., and
Employee Representative George W. Lambertson, conducted an
evidentiary hearing at which the parties were afforded the
opportunity to present evidence and argument. At adjournment of
the hearing an agreed briefing schedule was established pursuant
to which the last of the parties' briefs were filed June 6, 1994.
The transcript was completed on June 9, 1994, and the Board
deliberated the case on July 11, 1994.
JURISDICTION
The Town is a public employer within the meaning of
26 M.R.S.A. 962(2) (1988). The Teamsters have alleged that the
Town has committed a prohibited practice proscribed by
26 M.R.S.A. 964(1)(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 this matter by virtue of 26 M.R.S.A. 968(5) (1988).
POSITIONS OF THE PARTIES
The Teamsters allege that during the parties' negotiations
for a successor to their contract which expired June 30, 1993,
the Town changed a longstanding past practice1 of giving sole
consideration in promotions to Camden Police Department (CPD)
bargaining unit members, by considering non-bargaining unit
_________________________
1The complaint alleges a change in practice from bargaining
unit promotional preference. Although in its opening statement
at hearing the Teamsters refer to the preference as a depart-
mental preference, and at points in the record the preference is
referred to as for the full-time CPD work force, the Teamsters'
post-hearing brief refers again to bargaining unit promotional
preference.
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applicants in the filling of a Sergeant's vacancy.2 The
Teamsters contend that the Town considered as applicants and gave
preferential treatment to3 two persons who were not employees of
the Town and that the Town's actions constitute a change in the
application of seniority and its effect on promotion. The
Teamsters allege that every applicant who has been successful in
the filling of every previous Sergeant vacancy has been a
bargaining unit employee. The Teamsters contend that the Town
was unsuccessful, prior to the complained-of change in practice,
in obtaining a change in the language of the parties' contract's
Management Rights clause, which would have permitted the Town to
consider non-bargaining unit candidates.4 The Teamsters argue
that this attempt establishes that the Town knew it did not
possess the power to unilaterally promote and that the failure to
obtain that language change constitutes a waiver of the right to
change the parties' past practice.
Finally, the Teamsters contend that the Town, on October 19,
1992, with notice only to non-bargaining unit employees and
without the opportunity for the Teamsters to demand negotiations,
changed its general personnel policy from one affording "maximum
opportunity to currently qualified Town employees" and providing
for external notice of vacancies "should there be no qualified
_________________________
2Although the Teamsters allege in the Complaint and argue in
their post-hearing brief that Sergeants Sturdee, Cole, Arau, and
Bickford were promoted from within the bargaining unit, these
allegations were not substantiated.
3Although in the complaint the Teamsters state that these
two candidates submitted applications for the Sergeant's position
prior to the announcement of the vacancy to bargaining unit
members, there is no evidence in the record to support this
allegation.
4The Town unsuccessfully attempted to expand the wording of
its Management Rights clause in successor negotiations by
proposing language which would have confirmed or given the Town
the authority "to direct the employees of the department,
including the right to . . . promote."
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personnel," to one which only "provide[s] reasonable opportunity
to currently qualified Town employees," and permits the Town "to
advertise as widely as is deemed necessary to attract a qualified
field of candidates."
The Town asserts that the Teamsters have not satisfied their
burden of establishing a binding past practice. The Town alleges
that there has been no consistent past practice in filling
vacancies but, rather, a number of different approaches to
filling vacancies for both Patrol and Sergeant positions. The
Town contends that applicants Campbell and Bickford, whose
candidacies the Teamsters contest, are both members of the Camden
Police Department and that therefore the Town has satisfied any
past practice of considering only "inside" candidates. The Town
argues that the parties' negotiations respecting a successor
agreement are irrelevant to the question of the existence of a
past practice at the time of Campbell's application. Finally,
the Town contends that the matter is one appropriate for deferral
rather than consideration by the Board.5
FINDINGS OF FACT
The Camden Police Department (CPD) is composed of nine full-
time Patrol Officers, four Dispatchers, one Ticket Officer, five
to six Reserves, a Chief, one Lieutenant and two Sergeants. The
bargaining unit is comprised of Patrol Officers, Sergeants and
Dispatchers. Pursuant to the terms of the parties' collective
bargaining agreement then in effect, written notice was given of
at least one party's desire to modify the agreement in a manner
sufficient to cause the terms of the expiring agreement to remain
in effect during the entire period of the parties' successor
_________________________
5The Town did not petition the Board for review of the
Prehearing Officer's deferral decision as is required by Board
Rule 4.07(D). The Town's renewed request is therefore hereby
denied as untimely.
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negotiations. Successor negotiations occurred in and from April,
1993, to and into February of 1994.
The parties' present contract, effective September 1, 1993,
and their most recent expired contract effective July 1, 1991,
through June 30, 1993, both contain Management Rights clauses
which provide that, "[t]he Town retains all rights and authority
to manage and direct its employees except as otherwise specified
in this agreement." The Management Rights clause proposed by the
Town on May 21, 1993, during the most recent round of the
parties' contract negotiations, would have added the following
language to the existing clause:
It is recognized by way of illustration and not by way
of limitation that such rights and authority include,
but are not limited to, the right and authority to
exercise control and discretion over the organization
and the efficiency of the operations of the department;
to set standards for service to be offered to the
public; to direct the employees of the department,
including the right to assign work and overtime, to
hire, examine, classify, evaluate, promote, train,
transfer, assign and schedule employees in positions
with the Town; to suspend, demote, discharge, or take
other disciplinary action against employees; to
increase, reduce or change, modify or alter the
composition and size of the work force, including the
right to relieve employees from duties because of lack
of work or funds or other legitimate reasons; to
determine the location, method, means and personnel by
which operations are to be conducted; to establish,
modify, combine or abolish job positions and
classifications; to change or eliminate existing
methods of operation, equipment or facilities; to
establish, implement and maintain effective safety,
health and property protection measures; to create,
modify or delete rules and regulations; to take
necessary action to carry out the mission of the
department in cases of emergency.
This change was suggested by Maine Municipal Association
(MMA) employee Michael Wing, who the Town had retained for
contract negotiations. The Chief and the Town Manager thought
the Management Rights clause they had was fine but Wing thought
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the longer version "would be more defendable." The matter was
"not something the Town felt strongly about," so, when the
Teamsters firmly resisted it, the matter was not pursued further
by the Town. On February 8, 1994, the parties executed a
memorandum outlining a successor agreement to replace the expired
contract. Their agreement did not include the changes in the
Management Rights clause which had been proposed by the Town.6
Seniority is defined in the parties' agreement as running
from the last permanent date of hire. The parties' contract
specifies that seniority "shall be a major factor in matters
affecting layoff, recall and vacation preference." No mention is
made in the Seniority article or elsewhere of the use of
seniority in promotions. Nowhere in the contract is preference
in either promotions or the filling of other vacancies given to
bargaining unit, Union or CPD employees. Neither the present nor
the past Sergeant job descriptions require Union or unit
membership as a prerequisite to eligibility for the position of
Sergeant. The parties' contracts do not contain a Zipper Clause
or a Maintenance of Benefits Clause.
The Town's personnel policies which address the issues of
recruitment and promotion have been revised since Town Manager
Moody came to the Town in May of 1991. During Moody's first year
as Manager, he and the personnel committee reviewed the personnel
policy. The new policy was brought before employees who are not
part of the collective bargaining units, for comment, and was
then approved by the Board of Selectmen in October of 1992. The
Town's unilateral change of the personnel policy occurred during
mid-term of the parties' July 1, 1991, through July 30, 1993,
collective bargaining agreement. The Teamsters were given no
_________________________
6There is no evidence that abandonment of this proposal was
in exchange for the Teamsters' agreement on any other contract
language sought by the Town, or that it was abandoned in exchange
for abandonment of any language sought by the Teamsters.
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notice of the change, and the Town did not afford the Teamsters
the opportunity to request negotiations over the change. Section
2.1 Eligibility of Article II, entitled RECRUITMENT AND
EMPLOYMENT, TRANSFER, AND PROMOTION, of the Town's personnel
policy, in effect from 1985 until October 19, 1992, states:
It is the policy of the Town of Camden that all
positions within the Town be filled by fully
qualified[7] people who have been evaluated based on
job related criteria. Eligibility for appointment,
promotion, or transfer shall therefore be based on such
qualifications. It is also the policy of the Town to
provide maximum opportunity to currently qualified Town
employees.
(Emphasis added). Section 2.2 of this Article entitled
Announcement of Vacancies states, in pertinent part:
Notice may be given externally should there be no
qualified internal applicants, or if necessary to
develop a broader base of applicants.
The Town's October 19, 1992, revised "Eligibility" policy states,
instead of "maximum opportunity", that, ". . . It is also the
policy of the Town to provide reasonable opportunity to currently
qualified Town employees." (Emphasis added). Similarly, the
revised policy reflects a change in the Announcement of Vacancies
provision. The October 1992 version states, in pertinent part:
It shall be the policy of the Town of Camden to
advertise as widely as is deemed necessary to attract a
qualified field of applicants. However, all job
notices will be posted on bulletin boards in Town work
sites.
The promotion at issue is the first which has occurred since the
_________________________
7There is no direct evidence establishing whether, in light
of the Sergeant job description's police experience requirement
and requirement of Maine Criminal Justice Academy "Basic School,"
waiver, or eligibility, there were any Town employees "qualified"
to apply for the Sergeant position.
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personnel policy was revised.
The Town Manager considers the Town's personnel policy to
apply only to unrepresented Town employees, and not to constitute
a supplement to the employment relations of represented employees
respecting matters not addressed contractually. In practice, if
a Town employee meets hiring criteria they're given preference.
Nothing in the Town's personnel policy imposes any time limits on
postings of vacancies.
Camden sponsors one Patrol Officer as an agent of the Maine
Drug Enforcement Agency (MDEA). Assignment to the MDEA is on an
annual basis. For five years Cameron Campbell has been an
undercover agent of the MDEA sponsored by the Town of Camden.
MDEA's predecessor, BIDE, brought Campbell's name to the CPD.
Campbell is classified by the MDEA as an Investigator Supervisor
and is considered a Reserve Officer by Camden. His Camden
reserve status and his MDEA Agent service commenced
simultaneously. He is supervised by, and his daily activities
are directed by, the MDEA. Camden pays Campbell's salary and the
MDEA reimburses Camden. The MDEA sets Campbell's pay at
$13.50/hour ($560/week), the equivalent of a State Police
Sergeant based on a 42-hour week. The MDEA Agent rate is $3.00
more than that paid a Camden Patrolman and $2.40/hour more than a
Sergeant. MDEA is presently three to four months behind on its
reimbursements. The Teamsters played no role in establishing the
terms of Campbell's employment contract. The MDEA position was
not posted for CPD regular full-timers to participate in.
MDEA Agents receive the same non-wage benefits as fellow
employees receive in the departments from which they originate.
A contract for services exists between Camden and the MDEA
respecting the full nature of the employment and use of Campbell
as an agent of the MDEA. A contract between Campbell and the
Town establishes Campbell's employment relationship with the Town
and the MDEA. Campbell's unique employment arrangement has been
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reviewed and approved annually by the Town's Board of Selectmen.
The Teamsters have not proposed that the Town bargain over the
matter of Campbell's employment conditions. Senior Patrolman Rob
Laite's predecessor as chief Teamsters' shop steward "did raise a
concern and wanted it to be made known that if we accept this
person or if he's accepted that he have no bumping rights."
The current agreement between MDEA and Camden was signed on
December 6, one day prior to the posting of the Sergeant's
vacancy.
The contract between Camden and the MDEA specifies that the
"MDEA director is not bound by any final or intermediate decision
of any grievance procedure." Campbell's contract with the Town,
by which he is specifically appointed a "Special Police Officer
within the meaning of Title 30-A MRSA Section 2672" waives all
rights to which Campbell may be entitled under the collective
bargaining agreement, including "longevity, seniority, accrued
benefits, and any other rights that are available to regular
police officers". Campbell's contract with the Town specifically
states that "he is not hired for the purpose of becoming a
regular member of the Camden Police Department" and that "[t]he
Town would not be hiring [him] for any other purpose were it not
for the Town's participation in the MDEA program." The Town has
reached an agreement with no one affecting its ability to employ
Campbell which is in any way enforceable by the Teamsters.
Burgess was Chief when Campbell was first assigned to the
MDEA. Campbell has never been evaluated as a regular member of
the CPD. Regular employees receive an annual performance
evaluation. Campbell does not report for work to the Camden
Police Department although he does come by to pick up his check
on Fridays. Campbell does not attend departmental meetings, or
wear a CPD uniform, has not appeared on a call-up list prior to
the present promotional exam and has never attended weapons
qualification at the firing range. Campbell has not attended
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mandatory departmental meetings at the Maine Chief's Association.
Prior to the MDEA Campbell worked as a Patrolman and as a
Detective for the Rockland Police Department. Campbell has
worked with the CPD on numerous drug cases.
CPD Patrol Officers ordinarily perform a 6-month probation.
Bickford was well known in Camden and was a Deputy with the Knox
County Sheriff's Department. He is a Detective there now.
Bickford began working for the CPD in June of 1993 as a Reserve
Officer primarily working OUI roadblocks. Reserves perform five
hours of formal training monthly. Working a shift has satisfied
the training requirement in the past. Reserve officer vacancies
are not posted and no newspaper articles have announced their
engagement by the Town. Reserves are generally recruited by word
of mouth. Bickford has not attended Departmental meetings or
mandatory departmental training sessions. Reserves work part-
time and are not bargaining unit members. There is no alleged
correlation between service as a Town reserve officer and
eventual hire as a patrolman.
Senior Patrol Officer Rob Laite has been the CPD shop
steward for the past five years and was an assistant steward for
the three previous years. In his present capacity he is involved
in all forms of discipline affecting unit employees respecting
which grievances are filed. Laite's duties as steward include
bargaining team membership. He was on the Teamsters' team in the
most recent negotiations. Laite was a part-time reserve
dispatcher in 1985, a full-time dispatcher in 1986, and patrolman
in 1987. Laite's position at the CPD is not an annual
appointment.
There have been two Sergeant promotions in the department
during Laite's tenure. The two vacancies occurred at some
unsubstantiated date more than eight years ago, as the result of
a resignation and an extended medical leave. A written test, an
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interview and an oral board were employed in filling the
vacancies. Unit employees Wakelin, Hall and Roberts agreed among
themselves to limit their competition for Lieutenant and Sergeant
vacancies, by agreeing that Wakelin and Hall would not apply for
Lieutenant vacancies and that Roberts would not apply for any
Sergeant vacancy. Three applicants took the promotional
examination: Patrolmen Hall, Wakefield and Main. Hall and
Wakefield, who were promoted into the vacancies, were the most
senior applicants and had been serving in acting Sergeant
capacities. There is no indication whether there were any
applicants either from outside the department or outside the
bargaining unit, in the promotion process. There is no evidence
that there has ever been an applicant or candidate for any
Sergeant vacancy from outside the bargaining unit. There is also
no evidence of any internal or external advertisement of any
Sergeant vacancy prior to the one at issue in this case. There
have been no Sergeant selections since Chief Burgess came to the
Department as Chief in February of 1989. There has been only one
Lieutenant promotion (promotion out of the unit) in the present
Chief's tenure and there was only one candidate for that
promotion.
The present Sergeant vacancy occurred after Sergeant Hall
went out in January, 1993, on a work related injury, filed a
workers' compensation claim, reached a settlement with the
insurer and then resigned on November 22, 1993. Chief Burgess
came to the conclusion sometime in or after late summer of 1993
that Hall "was not very likely to come back." When it appeared
that Hall would not return, Burgess went through the Department's
personnel files looking for criteria that had been used in
previous promotional vacancies. He was unable to find consistent
criteria. Burgess discovered that an International Personnel
Manager's Association (IPMA) test and a test administered by the
MMA had previously been used. Advertising of the position was
delayed for two weeks after Hall's resignation while approval of
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the Town selectmen was obtained.8 Burgess did not advertise the
Sergeant's position outside the department.
Chief Burgess set about developing a process and criteria to
be used in the Sergeant selection. He developed weighting to be
applied to the promotional criteria based on his experience and
on research of law enforcement literature addressing the subject.
Burgess's experience weighting grants twice the points annually
for service with Camden as compared to other departments in an
attempt to grant an edge to candidates who had all of their
experience with the CPD. Service with the MDEA under Burgess'
weighting would be discounted as would credit with any other
agency outside the CPD. There was some undisclosed dispute over
the credit to be given for inside and outside department credit
for reserves. No grievance was filed regarding that issue.
The first notification which Laite received of the Town's
intent to fill the vacancy in the Sergeant's position was a
December 2, 1993, article appearing in a local newspaper, the
Courier Gazette. Shortly after the newspaper article ran, a
notice was put up on the board in the back of the station at the
CPD announcing the availability of the position and soliciting
those interested to send letters of "intent" to the Chief. The
notice advertising the Town's intent to fill the Sergeant's
position, posted on December 7, 1993, states:
As you probably already are aware, Sgt. Hall has
resigned from Camden Police Department. Peter's
resignation has created an opening as Police Supervisor
within the department. The basic criteria to be
eligible to test for this position are as follows:
1. A minimum of four years of full time law enforcement
experience; 2. Completion of the Maine Criminal Justice
Academy Basic Police School or equivalent certifica-
tion; 3. Possess a valid Maine driver's license. If
_________________________
8The record does not establish whether this approval was of
the settlement agreement, of the resignation of Hall, or of the
Department's intent to fill the Sergeant's position.
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you meet these criteria and are interested in testing
for the position forward a letter of intent to me no
later than 12/15/93 at 1600 hrs. I will provide you
with the Police Sgt.'s updated job description; a
recommended study list for the written exam; written
and oral board test dates; and a breakdown of
promotional criteria. If you have any questions
concerning your eligibility or the letter of intent,
see me. Good luck.
This announcement of the Sergeant vacancy does not significantly
differ in content from the CPD's September 6, 1990, Patrol
Officer vacancy announcement or its August 20, 1990, Lieutenant
vacancy announcement.
The notice announcing the vacancy required initialling in
acknowledgement of receipt of notice of its contents. A number
of employees who were interested signed the notice in
acknowledgment. Bickford and Campbell, who the Teamsters had
been (unspecifiedly) advised were going to be considered, never
initialled the notice. Failing to sign the notice was not a bar
to candidacy. Laite inexplicably believed signing the notice
would preserve an individual's candidacy despite failure to
submit a letter of "intent." Laite tendered a letter of "intent"
the day after the posting of the notice. Bickford came to the
Department to ask for an application for the Sergeants' exam.
The Chief received letters of intent from Laite, Miller,
Gagne, King, Campbell and Bickford. Burgess considered Bickford
and Campbell to be employees of the Department. In response to
letters of intent applicants were sent letters telling them the
time, date and place of the examination and giving them a study
list published by the IPMA. The letter also said that the Chief
would supply updated versions of the job description. Burgess
had recently added numerous Special [Eligibility] Requirements
for Sergeant candidacy but these had not been added on to the
existing job description. Lack of updated descriptions prevented
their promised distribution to applicants. The testing and
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promotional criteria for the Sergeant's vacancy were announced by
Chief Burgess in a memo, which states:
The testing for the position of Sgt. with the Camden
Police Dept. will consist of a written test (30%); an
oral board exam (30%); analysis of prior evaluations
and training (20%); seniority points (10% @ 4 points
for minimum and 2 points per year up to 10 years with
CPD and 1 point per year with other law enforcement
agencies); and an interview with Lt. Roberts and I
(10%). Any questions concerning this procedure should
be directed to me.
Burgess spoke with Laite about the promotion process. Laite
asked if Bickford and Campbell were going to be permitted to test
for the vacancy. When Burgess said they had expressed an
interest and that as far as he knew they were, Laite informed
Burgess that the membership didn't think it was fair that he was
"going outside to hire." Laite subsequently filed a grievance,
on December 10, 1993, objecting to consideration of Campbell and
Bickford for the promotional exam. The grievance report states,
in pertinent part: "We feel that this is a unilateral change in
working conditions by allowing these two gentlemen to take part
in the promotional process[sic] therefore a violation [of the]
contract."
On December 14, Teamsters Business Agent Ernie Canelli sent
a letter which, inter alia, notified the Town Manager of the
existing grievance and of the Teamsters' intent to file a
prohibited practice with the Board if the matter was not settled
at the Town Manager's level. Laite spoke to the Town Manager and
made the Teamsters' position known to him. On December 15,
Burgess issued a memo listing the candidates to be tested. The
list was intended to permit the tested employees to pass through
security at the test site. On December 16, Burgess announced the
date, time and location of the test. Also on December 16,
Burgess wrote Laite, as follows, regarding the 12/10/93
grievance:
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Following our meeting of 12/14/93 regarding this issue,
here is my written response in compliance with our
current grievance procedure:
I cannot grant your grievance because there is no
language in the current contract relative to
promotional testing criteria and I therefore believe it
is Managements right to establish those criteria.
There have been no promotions of union covered
positions since my being hired as Chief of Police so I
do not believe I am violating any past practice or long
standing work conditions.
The grievance was never taken to arbitration. The test was
administered on December 21, 1993; Bickford and King did not take
the test. No one complained about their scores which were
revealed the same day as the examination. Campbell scored
highest, followed by Miller, Laite and then Gagne.
The Sergeant's position is still vacant. To date, only the
written exam has occurred. Neither oral boards, reviews of
evaluations and training, nor interviews have transpired.
Burgess has not formally assigned experience points to any
candidate although he has approximated those of Campbell, Allen
and Miller. Burgess has not conducted interviews because he does
not want to bring someone on then possibly have to lay them off.
DISCUSSION
The Teamsters allege that the Town has unilaterally
abandoned a well-established non-contractual past practice in the
filling of vacant Sergeant positions, of accepting candidates
only from within the bargaining unit. We have previously
outlined the rationale and ambit of our unilateral change rule,
which applies to allegations such as those involved in the
instant case, as follows:
Changes in the mandatory subjects of bargaining
implemented unilaterally by the public employer
contravene the duty to bargain created by 965(1) of
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the Act and violate 26 M.R.S.A. 964(1)(E). The
rationale behind this principle of labor law is that an
employer's unilateral change in a mandatory subject of
bargaining "is a circumvention of the duty to negotiate
which frustrates the objectives of [the Act] much as
does a flat refusal" [to negotiate]. NLRB v. Katz, 369
U.S. 736, 743, 82 S.Ct. 11007, 1111, 8 L.Ed.2d 230
(1962); Lane v. Board of Directors of M.S.A.D. No. 8,
447 A.2d 806, 809-810 (Me. 1982).
In order to constitute a violation of 964(1)(E),
three elements must be present. The public employer's
action must: (1) be unilateral, (2) be a change from a
well-established practice, and (3) involve one or more
of the mandatory subjects of bargaining. Bangor Fire
Fighters Association v. City of Bangor, MLRB No. 84-15,
at 8 (Apr. 4, 1984). An employer's action is
unilateral if it is taken without prior notice to the
bargaining agent of the employees involved in order to
afford said representatives reasonable opportunity to
demand negotiations on the contemplated change. City
of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129,
1135 (Me. 1982).
Auburn Firefighters Association Local 797, IAFF, AFL-CIO v. Paula
Valente, No. 87-19, slip op. at 7, 10 NPER ME-18017 (Me.L.R.B.
Sept. 11, 1987) (quoting Coulombe v. City of South Portland, No.
86-11, slip op. at 11-12 (Me.L.R.B. Dec. 29, 1986), 9 NPER ME-
18008, citing Teamsters Local Union No. 48 v. Eastport School
Department, No. 85-18, slip op. at 4 (Me.L.R.B. Oct. 10, 1985),
8 NPER ME-17003).
Because the Town does not dispute that its actions were
unilateral or that they involve a mandatory subject, the
dispositive issue in this case is whether there has been a well-
established practice in the filling of Sergeant vacancies, of
limiting applications exclusively to existing members of the
bargaining unit. The entitlement of employees to the
continuation of the status quo respecting mandatory subjects is
unaffected by whether the status quo "result[s] from negotiations
or from past practice." See Teamsters Local Union No. 48 v.
Bucksport School Department, No. 81-18, slip op. at 4 (Me.L.R.B.
Dec. 22, 1980). The burden of proving that a bargaining-unit-
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only zone for Sergeant promotions was a well-established practice
of the parties is on the Teamsters. See Teamsters Local Union
No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 9
(Me.L.R.B. Jan. 24, 1986). As is more fully explained below, we
find that the Teamsters have not satisfied their burden of proof.
The Town's Management Rights Proposal
We are not convinced that the Town's proposal and subsequent
withdrawal of a wide-ranging Management Rights clause in
successor negotiations constitutes an acknowledgment by the Town
of an existing practice of a bargaining-unit-only promotion zone
for Sergeant vacancies. We do not agree with the Teamsters that
the Town's proffer of the proposal indicates that the Town
doubted its unilateral right to promote. First, reference to an
amorphous "right to promote" is only one of a great many facets
of the Town's proposed language. Second, the clause was
apparently half-heartedly proposed and unremarkably abandoned.
Third, the evidence does not reveal that a bargaining-unit-only
promotion zone for Sergeant vacancies was ever discussed or even
mentioned in negotiations. Finally, although the proposal was
proffered in April or May, subsequent to the January start of
Hall's lengthy work injury absence, the evidence establishes that
the Town first suspected Hall would not return only in, or after,
late summer 1993. Hall actually resigned much later, near the
end of November, making the need for a replacement a certainty.
If, in fact, the Town was possessed of uncertainty about its
ability to unilaterally promote and desired to firm-up its
prerogative, the language would doubtless have been more specific
and the negotiations over its inclusion more protracted.
The Personnel Policy Change
The Teamsters have not charged that the Town committed an
unlawful unilateral change when it modified its general personnel
policy in October or November of 1992. The Teamsters do not
charge that the Town's general personnel policy is the basis of
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the past practice at issue here9 or that any improper application
of the policy by the Town constitutes an unlawful refusal to
bargain. The Teamsters' complaint charges a violation of an
alleged bargaining-unit-only zone for Sergeant vacancies.
The personnel policy, on its face, applies only to candidate
recruitment and selection preference favoring Town employees.
Additionally, the Teamsters have not shown the policy to be
violative as applied.10
The evidence respecting the change in the Town policy no
more strongly supports the Teamsters' suggestion that the Town
was attempting to undo the established practice of a unit-only
promotion zone for Sergeants than it supports an hypothesis that
the Town was attempting to reduce the historical preference for
"insiders" applicable to its unorganized Town employees, to bring
it into line with the lack of preference for "inside" employees
which existed at the CPD. In any event, the October '92 change
in the personnel policy was so temporally removed from the
December '93 promotion process that its probative value is
dubious. Moreover, it is unlikely, in light of the comparative
infrequency of turnover at the CPD, that the personnel policy
change was part of a systematic effort to attenuate or eliminate
the influence of seniority in Town personnel matters.
Accordingly, we are not required to determine whether
Campbell and Bickford are "employees" of the Town. If such a
determination were relevant to the charged prohibited practice,
we would be inclined to find, only in regard to the use of the
____________________
9We will not comment, on this record, concerning the
soundness of the Town's conclusion respecting whether its general
personnel policy is applicable to bargaining unit members in
circumstances where neither the contract nor a contrary past
practice are controlling.
10There is no evidence, respecting the present or previous
Sergeant vacancies, that bargaining unit members are, or have
previously been, the only "currently qualified" Town employees.
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word in the personnel policy, that Bickford as a "reserve
officer" and Campbell as a "special officer" are Town employees
in the broadest sense of that word. Such a finding would not
require a determination of whether they are public employees
within the meaning of the Municipal Public Employees Labor
Relations Law.
Past Sergeant Vacancies
The Teamsters allege that applications for Sergeant
vacancies have always previously been limited to bargaining unit
members. To establish the existence of this practice the
Teamsters have proven that the last two Sergeants selected were
Patrol Officers at the time of their applications and that one
additional unit member also applied. Additionally, the Teamsters
have proven that all previous successful candidates have been
bargaining unit members. The Teamsters' proof is inconclusive,
however, respecting whether any persons not then current members
of the bargaining unit have ever been sought or permitted to
apply for consideration in the filling of Sergeant vacancies.
Although the Town is in the best position to tender reliable
evidence concerning the probative issues of whether in previous
Sergeant promotion procedures the vacancies were advertised
outside the department, and whether non-unit candidates were ever
considered, we refuse to infer that such evidence if presented
would run against the Town, for the following reasons. Figuring
foremost in our refusal to draw the inference is the fact that
there is no evidence in this record that Town officials were
requested to provide such information by the Teamsters.
Furthermore, subpoenas were not requested by the Teamsters to
secure the attendance and testimony of any current or former Town
official to render probative testimonial or documentary evidence
respecting these, or similar, facts. Finally, the Teamsters
neglected to adequately question, on direct or cross-examination,
Town officials respecting these matters.
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We also reject the Teamsters contention that the testimony
of Chief Burgess, respecting the apparent arrangements among some
unit members with regard to limiting their mutual competition in
the filling of the Lieutenant and Sergeant vacancies eight years
ago, tends to establish the alleged past practice.
CONCLUSION
The existence of an enforceable past practice may be proven
by evidence of the conduct of the parties in dealing with a
mandatory subject, which reveals a practice that is long-
standing, frequently observed and consistently applied. An
enforceable practice may also be proven by evidence of less
frequent dealings of the parties respecting a mandatory subject,
where the evidence reveals a clear and unmistakable shared
expectation of resolving similar cases in the same manner. The
proof of the Teamsters in this case satisfies neither of these
methods.
The Teamsters have established that all successful
candidates for previous Sergeant promotions have been unit
members, and that three bargaining unit members were candidates
in the most recent filling of Sergeant vacancies which occurred
eight years previous. We are unwilling to make the leap from
these facts to a conclusion that there exists a well-established
practice of a bargaining-unit-only promotion zone for the filling
of Sergeant vacancies. Because the Teamsters have not satisfied
their burden of proof, we conclude that the Teamsters' complaint
must be dismissed. Accordingly, we issue the following order.
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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
Teamsters' January 27, 1994, Complaint be, and hereby is,
DISMISSED.
Issued at Augusta, Maine this 7th day of September, 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 /s/___________________________
Superior Court. To initiate Pamela D. Chute
such a review, an appealing Alternate Chair
party must file a complaint
with the Superior Court within
fifteen (15) days of the date
of issuance of this decision /s/___________________________
and order, and otherwise Howard Reiche, Jr.
comply with the requirements Employer Representative
of Rule 80C of the Maine Rules
of Civil Procedure.
/s/___________________________
George W. Lambertson
Employee Representative
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