STATE OF MAINE MAINE LABOR RELATIONS BOARD
MLRB No. 79-IR-01
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)
In the matter of the request of )
) INTERPRETATIVE RULE
TEAMSTERS LOCAL UNION NO. 48. )
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The Maine Labor Relations Board ("Board") received a letter dated May 17,
1979, from Teamsters Local Union No. 48 ("Local 48") requesting an interpretative
ruling. Counsel for the University of Maine, F. Paul Frinsko, Esq., objected to
the Board's consideration of the request in a letter dated May 31, 1979.
The Board met to deliberate the question and the objections raised, Chairman
Edward Keith presiding, with Wallace J. Legge, Employee Representative, and Don R.
Ziegenbein, Employer Representative.
The underlying facts of the request are contained in pages 6 to 9 of Recommen-
dations and Determinations of Arbitrator, dated March 24, 1979, in which the arbi-
trator summarized the positions of the parties concerning the University's "weapons
policy" and whether the University was obligated to bargain concerning the subject.
The arbitrator decided to make no recommendation. (A recommendation would be bind-
ing on the parties per 26 M.R.S.A. 1026(4)(B), subject to review by the Superior
Court.) Rather, he stated: "I suggest that the parties submit the bargainability
question to the Maine Labor Relations Board in an appropriate proceeding." Recom-
mendations at p. 9.
FACTS
The facts upon which this ruling is based are the following:[fn]1
1. The University has a weapons policy in effect which limits the
issuing of weapons to police officers to the following circum-
stances:
(a) all money escorts; (b) all intrusion alarms;
(c) Class A, B, or C crimes in progress; and
(d) aiding other police departments at alarms and
crimes in progress.
2. Local 48 proposes that the police officers be permitted
to carry weapons in a greater number of, if not all, on-
duty circumstances.
3. The weapons policy as it now exists does not constitute a
hazard to the safety of the police officers.
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1 These are not findings of fact; they are assumed facts.
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OBJECTIONS
The University's first objection is that "[tlhere is no present proceeding
before the Maine Labor Relations Board which would warrant the intervention of
the Board at this time."
The key section of the University of Maine Labor Relations Act ("University
Act") is 26 M.R.S.A. 1028(1):
"1. Rule making Procedure. Proceedings conducted under this chapter
shall be subject to the rules and procedures of the board promul-
gated under [26 M.R.S.A.] section 968, subsection 3."
26 M.R.S.A. 968(3) states:
"Rule-making power. The board may, after a public hearing, from
time to time, adopt such rules of procedure as it deems necessary
for the orderly conduct of its business and for carrying out the
purposes of this chapter. Such rules shall be published and made
available to all interested parties. The board shall also, upon
its own initiative or upon request, issue interpretative rules
interpreting this chapter. Such interpretative rules shall be
advisory only and shall not be binding upon any court. Such inter-
pretative rules must be in writing and available to any person in-
terested therein."
The latter section clearly states that the Board shall issue interpretative
rules upon request. We therefore reject the University's objection since there is
no limit to when the Board may issue a ruling interpreting the University Act.
The request from Local 48 seeks an interpretation of 26 M.R.S.A. 1026(1)(C).
In other words, this is a proceeding.
The University's second objection is that 26 M.R.S.A. 1028(1) does not con-
fer jurisdiction "necessary to exercise any rule-makinq power except with respect
to procedural rules dealing with proceedings specifically initiated pursuant to
the University . . . Act."
This argument is also without merit. In short, all of 26 M.R.S.A. 968(3)
is incorporated into 26 M.R.S.A. 1028(1). Thus, the Board's authority for making
both kinds of rules, procedural and interpretative, is firm.[fn]2 Indeed it would be
an absurd situation if the Board were impotent to interpret the University Act in
a situation such as this.
DISCUSSION
Local 48's position is that the weapons policy strongly affects the safety of
its members and is therefore a working condition and a mandatory subject of bargain-
ing. Moreover, it is claimed, the morale of the employees is hurt when they are
prohibited from carrying weapons. The opposing argument is that this area is one
that must be reserved for managerial decision and cannot be within the scope of
bargaining.
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2 The Board has to date not found it necessary to promulgate rules of practice
governing the rendering of advisory rulings beyond those stated in 26 M.R.S.A.
968. Even if the Maine Administrative Procedure Act, 5 M.R.S.A. 8051, 9001,
were binding on the Board - a questionable proposition in light of Sanford Highway
Unit of Local 481, AFSCME v. Town of Sanford, Superior Court York County, CV 79-171
(Aug. 30, 1979) - the absence of rules of practice for interpretative rule requests
would not limit the Board's authority to act.
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In general, safety rules and safe work practices are mandatory subjects of
bargaining. See, e.g., NLRB v. Gulf Power Co., 384 F.2d 822, 825 (5th Cir. 1967).
Therefore, the subject of when police carry weapons for their own safety is a
working condition. Proposals in this area would therefore be mandatory subjects
unless excepted or limited for some reason. We find such an exception here.
There is no managerial prerogatives or governmental policy exception included
in the University Act which would limit the mandatory subjects of bargaining. See
26 M.R.S.A. 1026(1)(C); Teamsters Local 48 v. University of Maine, MLRB No. 78-16
(1979) appeal docketed, Kennebec Super. Ct. CV-79-405 (July 13, 1979), at page 6.
In contrast, the Municipal Public Employees Labor Relations Act does contain such
a limit, the "educational policy" exception. 26 M.R.S.A. 965(1)(C). Moreover,
in State of Maine v. M.L.R.B., CV-78-484 (Kennebec Super. Ct. Aug. 7, 1979) notice
of appeal filed, September 6, 1979, the court adopted this reasoning in interpret-
inq the substantially similar language of the State Employees Labor Relations Act
26 M.R.S.A. 979, and rejected a claim by the State that workinq conditions which
involve "governmental policy" are exempt from the collective bargaining process.
The court stated that "no implication of such a policy should be transplanted to the
[State] Act." Decision at page 7.
In spite of this there is substantial federal precedent for acknowledging a
very limited exception for an area of paramount and fundamental concern to the
employer. Specifically, the relevant section of the National Labor Relations Act,
which is substantially similar to the University Act,[fn]3 has been interpreted by the
U. S. Supreme Court as including a very limited exception from the scope of mandatory
bargaining for "managerial decisions which lie at the core of the entrepreneurial
control" and "which are fundamental to the basic direction of a corporate enterprise
or which impinge only indirectly upon employment security." Fibreboard Paper
Products Corp. v. N.L.R.B., 379 U.S. 203, 217 (1964) (concurring opinion); see
Allied Chemical & Alkali Workers, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157, 180 n.19 (1971).
Since we look to the Federal Act for guidance, see Caribou School Department
v. Caribou Teachers Association, 402 A.2d 1279, 1283 (Me. 1979), we are persuaded
at this point to observe a limited exception in this area. Thus, we suggest that
public employer action which, while it may affect working conditions, is nonethe-
less of fundamental and paramount concern to both the public employer's primary
function and to the public interest, will be exempt from the scope of mandatory
bargaining unless, of course, it is outweighed in the balance by the importance of
the working condition affected. This fundamental and paramount concern exception
would be extremely limited and would not be synonymous with a broad "governmental
policy" exception. And it obviously could not reach nearly as far as the explicit
"educational policy" exception analyzed in City of Biddeford v. Biddeford Teachers
Association, 304 A.2d 387, 409, 418-423 (Me. 1973), which itself "was intended to
be restrictively, not broadly, conceived." Id. at 419.
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3 Compare 29 U.S.C. 158(d) with 26 M.R.S.A. 1026(1)(C).
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We envision that such a fundamental and paramount concern exception would
apply to few subjects of bargaining. However, it is applicable to the weapons
policy of the University since such is a fundamental decision concerning the
primary function of a university police department and is of paramount concern
to the public interest. See Fire Fighters Local 1186 v. City of Vallejo, 116
Cal. Rptr. 507, 87 LRRM 2453, 2457 (Cal. Sup. Ct. 1974); San Jose Peace Officer's
Association v. City of San Jose, 98 LRRM 2171, 2175 (Cal. Ct. App. 1978).
Nonetheless, safety concerns of the employees could weigh heavily enouqh in
the balance to override the exclusion if a serious enough safety question existed.
Given that the weapons policy in this case does not present a hazard to the safety
of the employees in question, however, we have no difficulty with the conclusion,
on these facts, that proposals by Local 48 which would increase the occasions when
guns are carried by campus police are not mandatory subjects of bargaining.
The same conclusion is applicable to the morale concerns of the employees,
which we view here as less significant than potential safety concerns.
MAINE LABOR RELATIONS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Wallace J. Legge
Employee Representative
/s/________________________
Don R. Ziegenbein
Employer Representative
Dated in Augusta, Maine this 15th day of October, 1979.
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