STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Number 77-16
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)
TRUCK DRIVERS, WAREHOUSEMEN AND )
HELPERS UNION, LOCAL NO. 340, )
on behalf of Louis Lewis, Detective )
of the Rockland Police Department )
)
Complainant )
)
vs ) DECISION AND ORDER
)
ROCKLAND CITY COUNCIL, consisting )
of Charles A. Allen, Jr., Charles P.)
Lake, E. Allen Gordon, Warren Perry )
and Thomas J. Molloy, Chairman, and )
Paul A. Devine, City Manager, and )
Richard D. Hanley, Chief of Police )
)
Respondent )
____________________________________)
This case comes to the Maine Labor Relations Board by way of a Prohibited
Practice Complaint dated October, 1976, and filed by Lucien Boutin, Secretary-
Treasurer, Truck Drivers, Warehousemen and Helpers Union, Local No. 3140, on
October 13, 1976. The Response to the aforesaid Complaint was dated October 28,
1976 and filed by John L. Knight, Esquire, Attorney for the Rockland City Council
on November 1, 1976. A pre-hearing conference was held in this matter at Augusta,
Maine on November 18, 1976, at 9:30 with Alternate Chairman Donald W. Webber pre-
siding.
As a result of the pre-hearing conference, a Pre-Hearing Conference Memoran-
dum and Order was issued by Mr. Webber on November 23, 1976, the contents of which
are incorporated herein by reference. A hearing was held on Tuesday, February 15,
1977, at 10:00 a.m. in the District Court Building, Upper Park Street, Rockland,
Maine, Alternate Chairman Donald W. Webber presiding with Kenneth T. Winters,
Alternate Employer Representative and Michael Schoonjans, Employee Representative.
Legal briefs were submitted by June 23, 1977, and the Board proceeded to deliberate
on this matter on Tuesday, July 5, 1977.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that this Board has jurisdiction to hear and
render a decision in this case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
1. The Truck Drivers, Warehousemen and Helpers Union, Local No. 340, having
offices at 144 Thadeus Street, South Portland, Maine, 04106, is the duly certified
bargaining agent of the patrolmen, detectives and dispatchers of the Rockland Police
Department by virtue of a bargaining agent election and certification dated June
23, 1975, a copy of said Certification being on file with the Maine Labor Relations
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Board in Augusta, Maine.
2. That Louis Lewis of 12 Talbot Avenue, Rockland, Maine, 04861, was the
duly appointed Steward for the Truck Drivers, Warehousemen and Helpers Union,
Local No. 340, from January 1, 1976, until on or about August 30, 1976, when his
status as a "Detective" of the Rockland Police Department terminated.
3. Mr. Paul Devine is the City Manager and Mr. Richard Hanley is the Chief
of Police for the City of Rockland. The City of Rockland is a public employer
within the provisions of the Municipal Public Employees Labor Relations Act.
4. That the Rockland City Council is composed of:
Thomas Molloy
Pleasant Street
Rockland, Maine 04861
E. Allen Gordon
Samoset Road
Rockland, Maine 04861
Charles P. Lake
Prospect Street
Rockland, Maine 04861
Warren Perry
Lake Avenue
Rockland, Maine 04861
Charles A. Allen, Jr.
Maverick Street
Rockland, Maine 04861
The other parties named above are as follows:
Richard Hanley - Chief of Police Paul A. Devine - City Manager
3750 Old County Road 19 Beech Street
Rockland, Maine 04861 Rockland, Maine 04861
5. That Richard E. Hanley is and has been Chief of Police since January 1,
1976.
6. That there is a collective bargaining agreement in effect between the
parties to the Complaint, said Agreement being executed on the 10th day of No-
vember 1975, for a term of two years and one month, commencing on November 17,
1975, and expiring December 26, 1977.
7. That the collective bargaining agreement referred to above contains the
following:
ARTICLE II. RECOGNITION:
"The City hereby recognizes that the Union is the sole and ex-
clusive representative of all Patrolmen (including one detective)
traffic officers and dispatchers of the Rockland Police Depart-
ment, except as provided herein, for the purpose of bargaining
with respect to wages, hours of work, and working conditions."
ARTICLE XI. CLOTHING - AUTOMOBILE:
"The City agrees that all employees covered by this Agreement shall
be provided, at no cost to the employees, all uniforms, shoes and
other equipment which it deems necessary for the regular perform-
ance of the employee's duties. The City shall pay for the cost
of cleaning two pair of pants per week for each employee. Employ-
ees will be reimbursed for the cleaning expenses on a monthly basis.
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Designated plain-clothes officers shall receive from the City
a clothing allowance equal to the cost of clothing for uniformed
officers.
The City will bear the cost of replacement of any personal cloth-
ing or personal articles damaged or destroyed in the line of duty.
Subject to the reasonable discretion of the Chief of Police, full-
time detective(s) shall be granted full-time use of an automobile
purchased, maintained and fueled by the city."
APPENDIX "A" 1976 POLICE PAY SCALE which provides rates of pay for detectives.
"DETECTIVE ..... (STARTING 12-29-75 THROUGH 12-26-76)
1st year 2nd year 3rd year 4th year 5th year
$149 $157 $166 $173 $180
DETECTIVE .... (STARTING 12-27-76 THROUGH 12-26-77)
$159 $167 $176 $183 $190"
8. That on August 3, 1976, Chief of Police Richard D. Hanley issued a direc-
tive as follows:
THE FOLLOWING RULES AND REGULATIONS WILL APPLY TO THE DETECTIVE OF THE ROCKLAND
POLICE DEPARTMENT, EFFECTIVE IMMEDIATELY.
1. The Detective will work a forty hour shift. This will consist of five
work days with two days off each week. He will be scheduled by the
Deputy Chief who has charge of the work schedules.
2. The Detective will be entered on the work blotter and all calls and
other assignments will be entered.
3. The Detective will sign on and off when entering and leaving his
vehicle and will give his location to be entered on the radio log by
the dispatcher.
4. The Detective will complete a work sheet at the end of his shift each
day.
5. Any overtime work will be authorized by the Supervising Officer on the
shift.
6. The Detective's vehicle will be parked at Police Headquarters and will
be picked up at the start of his shift and left at the station at the
end of his shift.
9. That on August 13, 1976, a verbal protest was lodged by Lucien Boutin,
Secretary-Treasurer of the Local Union, and by Detective Louis Lewis, with the
City Manager, Paul Devine and with Chief of Police Richard D. Hanley, relative to
the modification of the conditions of employment of Louis Lewis.
This protest was confirmed in a letter from Lucien Boutin to City Mana-
ger Paul Devine on August 16, 1976.
10. That on August 12, 1976, Detective Louis Lewis gave Secretary-Treasurer
Lucien Boutin an affidavit relative to the case of Officer Daniel Budnick of the
Rockland Police Department against the City of Rockland.
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The affidavit was presented as evidence by Secretary-Treasurer Lucien
Boutin at the August 13, 1976 arbitration hearing, and examined by the City
Manager Paul Devine and by Counsel John Knight for the City. It was ruled
"unacceptable" by the Chairman of the Arbitration Panel, after it was objected
to by Counsel for the City.
11. That on August 14, 1976, Chief of Police Richard D. Hanley wrote a letter
to Detective Lewis advising him that:
Starting Monday, August 16th, you will be working in uniform. This
is due to the fact that Officer Abshire will be on a six month leave
of absence and Disp. Silvernail is in the hospital. You will be work-
ing Officer Abshire's shift which is 12:00 to Midnight. You will have
Monday and Tuesday off. I was unable to contact you so if there is any
questions contact me or the Dep. Chief in regards to the schedule.
12. That Detective Louis Lewis resigned from his position as detective on
the Police Force effective August 10, 1976, by means of a letter dated August 16,
1976, addressed to Chief Manley as follows:
It is with the sincerest regrets that I hereby submit my
resignation from the Rockland Police Department to be effective
two weeks from today, August 30, 1976.
As of today, I will start two weeks' vacation and terminate
completely on the 30th.
I will testify in all of my pending court cases and do every-
thing I can to see that these cases are brought to a successful
conclusion.
If I can ever be of service to you or to the Department, in any
way, please do not hesitate to call on me.
13. There are no provisions in the City Ordinance for a "Detective." A
"Detective" classification was in existence prior to the Unit Determination
hearing held by the Maine Labor Relations Board on May 8, 1975. The classifi-
cation of Detective was included in the Unit Determination Decision rendered on
May 20, 1975 by the Executive Director of the Public Employees Labor Relations
Board. The City of Rockland, through City Manager Paul A. Devine negotiated
with the Local Union, a collective bargaining agreement which in part provides
for a classification of "Detective" and other provisions applicable only to a
detective. Said collective bargaining Agreement was ratified by the City Council
of Rockland.
DECISION
The Truck Drivers, Warehousemen and Helpers Union, Local No. 340, has charged
the City of Rockland with violating the Municipal Public Employees Labor Relations
Act, hereinafter referred to as the "Act," by its unilateral change in working con-
ditions and by its constructive discharge of a policeman. With respect to the first
charge concerning a unilateral change in working conditions, we note that Section 964
(1)(E) of the Act prohibits public employees, their representatives and agents, from
refusing to bargain collectively with the bargaining agent of its employees as re-
quired by Section 965 of the Act. Section 965 imposes on both public employer and
the bargaining agent the obligation to bargain collectively which includes the ob-
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ligation "to confer and negotiate in good faith with respect to wages, hours,
working conditions and contract grievance arbitration . . . ."
The directives issued by Chief Hanley on August 3, 1976 and August 14,
1976 changed the working conditions of the detective by effectively reducing the
detective position to that of a patrolman, without negotiating the change with
the union. The contract negotiated by the parties specifically called for the
detective position with accompanying rights and benefits. If the City of Rock-
land wished to change any of those rights or benefits granted to the detective
through either the contract or prior practice, it should have negotiated the
changes with the certified bargaining agent. See Section 965(1). We conclude
that the unilateral changes in the working conditions of the detective contra-
vene the obligation to bargain collectively contained in 26 M.R.S.A. Section
965(1)(C) in violation of Section 964(1)(E) of the Municipal Public Employees
Labor Relations Act.
The second charge concerns the "constructive discharge" of Detective Lewis.
The complaint has charged that Detective Lewis, the Union Steward, was forced to
resign his position as detective because of his strong support and active role
in the Union and because he filed an affidavit in an arbitration proceeding in
support of a grievance against the City of Rockland. We do not agree. We find
the resignation of Detective Lewis was motivated by personal reasons, and not by
the employer's conduct. Detective Lewis was asked by the City Manager to recon-
sider his resignation which was reluctantly accepted by the City Manager. The
actions on the part of the employer were not those of someone trying to get rid
of a union organizer or get back at an employee who had submitted evidence at an
arbitration proceeding. The resignation, if based on the employer's conduct, was
misplaced and was not based on a manifestation of anti-union animus. We find the
resignation was not a "constructive discharge" in violation of the Municipal
Public Employees Labor Relations Act since it was motivated by personal reasons
and voluntary.
ORDER
On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
Section 968 of the Municipal Public Employees Labor Relations Act, it is ORDERED:
1) That the City of Rockland, its representatives, servants and
agents cease and desist from engaging in any of the acts pro-
hibited by 26 M.R.S.A. Section 964(1) and especially from
refusing to bargain collectively with the bargaining agent of
its employees as required by Section 965.
2) That the City of Rockland retain the position of detective
with the Rockland Police Department with the rights and benefits
enjoyed by that position prior to August 3, 1976.
3) That the City of Rockland bargain collectively with Truck Drivers,
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Warehousemen and Helpers Union, Local No. 340, with respect
to any changes in the working conditions of the detective
position.
4) That the return to the status quo ante does not necessitate
the City of Rockland rehire Detective Lewis in the position
of detective since his resignation submitted August 16, 1976
was voluntary.
5) That the complaint filed by Truck Drivers, Warehousemen and
Helpers Union, Local No. 340, on October 13, 1976, and as
amended on November 18, 1976, as far as it alleges a violation
of 26 M.R.S.A. Section 964 1 (A)(B)(D), should be and hereby
is DISMISSED.
Dated at Augusta, Maine this 9th day of August, 1977.
MAINE LABOR RELATIONS BOARD
/s/__________________________________________________
Donald W. Webber, Alternate Chairman
/s/__________________________________________________
Kenneth T. Winters, Alternate Employer Representative
/s/__________________________________________________
Michael Schoonjans, Employee/Representative
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