International Brotherhood of Police Officers v. City of Lewiston, No. 94-08, 
Interim Decision, April 21, 1994, Decision and Order, Aug. 23, 1994

                                      Case No. 94-08
                                      Issued: April 21, 1994

               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


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


     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.


     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


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

                                   Peter T. Dawson

                                   Gwendolyn Gatcomb
                                   Alternate Employee

Employer Representative Howard Reiche, Jr., filed a separate,
dissenting 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

Issued at Augusta, Maine, this 21st day of April, 1994.

                                   Howard Reiche, Jr.
                                   Employer Representative


                                      Case No. 94-08
                                      Issued:  August 23, 1994  

               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


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.

     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


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)

                    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. 


                        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

          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;


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


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

     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

     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


     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


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:




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.

     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

     Generally, hours of work shall be Monday through Friday
     from 0830 to 1630 hrs. with a one-half hour lunch

     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


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

     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]


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


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


evidentiary items losing their integrity, and to the department's
failure on thirteen of the fifteen CALEA standards).

     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.


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.


     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.

     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.
     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


(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.

                                   Gwendolyn Gatcomb
                                   Alternate Employee