STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                                Case No. 80-22

State, County, Municipal and   )
University Employees in the    )
State of Maine,                )
                 Complainant,  )
     v.                        )                      DECISION AND ORDER
                 Respondent.   )

     Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine (Union) filed this complaint on December 21,
1979.  The complaint alleges that the Town of Livermore Falls violated 26
M.R.S.A. Sec. 964(1)(A) by unilaterally changing the police department patrol-
men's work schedule, by assigning the Chief of Police to additional patrol
officer shifts, and by eliminating the use of an "overlap" shift.  The Town
responded on January 11, 1980, that it was consistent with past practice for
it to exercise unilateral control in these areas.

     Alternate Chairman Donald W. Webber held a pre-hearing conference and
issued a Pre-Hearing Conference Memorandum and Order on Februarv 19, 1980,
the contents of which are incorporated herein by reference.  A hearing was
held on April 23, 1980, before the Maine Labor Relations Board (Board),
Chairman Edward H. Keith presiding, with Employee Representative Wallace J.
Legge and Employer Representative Don R. Ziegenbein.  All parties were
afforded full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and to file briefs.
The Union was represented by Richard R. Peluso, International Representative;
the Town by Samuel J. Quattrocchi, Negotiator.  The Union made oral argument
at the close of the hearing.  The Town ordered a copy of the transcript,
after which it submitted a brief.  Both parties filed reply briefs.


     Jurisdiction of the Board to hear and decide this case lies in Section
968(5) of the Municipal Public Employees Labor Relations Law (Act), 26
M.R.S.A.  968(5).

                                FINDINGS OF FACT

     Upon the entire record, and from our observation of the witnesses and
their demeanor, we find:

     1.  The Town is a public employer within the meaning of 26 M.R.S.A.
          968(5), 962(7), and 964(1); the Union is a public employee
         organization and a bargaining agent within the meaning of 26
         M.R.S.A.  968(5)(B) and 962(2).

     2.  In 1976 the Town Police Department employed five patrolmen.


         It also scheduled a reserve officer to work a full, eight-hour,
         "overlap" shift from four hours before until four hours after
         midnight on virtually every day of the year.  Thus, for at least
         these eight hours, two officers were on duty.  The Town owns
         two police cruisers.

     3.  In February 1978, the Town agreed on an appropriate bargaining
         unit for bargaining with the Livermore Falls Police Association,
         (LFPA) and voluntarily recognized the LFPA as the bargaining agent.
         The unit included Patrol Officers and Dispatch Officers.  Also in
         1978, the department was reduced to four regular patrol officers.
         In August 1978, the Police Chief began working regular patrol shifts
         on Mondays and Tuesdays from 8:00 a.m. to 4:00 p.m. He was on duty
         alone at those times.

     4.  As the result of a decertification and bargaining agent election on
         February 1, 1979, the LFPA was decertified and the Union was certi-
         fied as the new bargaining agent.  By this time, the Town was only
         scheduling the overlap shift on two or three days a week in the

     5.  In March 1979, while the Department budget was being discussed by
         Town officials, the possibility of putting the Chief on a regular
         patrol schedule was raised.  When the Union heard about this pros-
         pect, Peluso called Town Manager Paul Soucie to warn him that he
         would file a prohibited practice complaint if this were done.  The
         Town did not take any action at that time.

     6.  The parties stipulated that they reached an impasse in negotiations
         on October 3, 1979.  The Town's bargaining proposals in the record
         were the following:

              "Article 5.  Functions of Management

               It is agreed that except as specifically delegated,
               abridged, granted or modified by this agreement, all
               the rights, powers, and authority the Town had prior
               to the signing of this agreement are retained by the
               Town and remain the exclusive right of management
               without limitation."

              "Article 8.  Supervisory Personnel

               Supervisory personnel may perform work outside of their
               normal duties whenever assigned to do so by the Town at
               such times that qualified bargaining unit employees are
               not available."

              "Article 19 - HOURS OF WORK

               The regular work week of the Police Department employees
               is five (5) work days, each day consisting of eight (8)
               consecutive hours of work within the twenty-four (24)
               hour work day.*  The regular work week will be from Sunday
               through and including Saturday.  The normal work day presently
               commences at 12:01 a.m. and ends at 12:00 p.m. When occasions
               warrant the changing of the regular work day hours and shift
               assignment the Town reserves the right to put such changes
               into effect after notifying and meeting with the Union."
               (footnote omitted).

     7.  Article 5 was tentatively agreed to at about the time of impasse.
         Article 19 was tentatively agreed to at a mediation session on
         November 28, 1979.

     8.  On October 23, 1979, while the parties were at impasse, one of the
         four Patrol Officers submitted his resignation, effective November
         12, 1979.  The Town was also aware that another Patrol Officer was
         looking for other work and might be resigning at some point.


     9.  On November 7, 1979, Town Manager Soucie, wrote a letter to
         Union representative Peluso advising him of "decisions arrived
         at by the Board of Selectmen which will be implemented and made
         effective on [Monday] November 12, 1979."  The changes were
         the following:

              (1)  The work schedule of 7 days on duty followed by
                   two days off would change to a schedule of 5
                   days per week on duty.

              (2)  The Police Chief's schedule would change to regular
                   patrol officer duty during the 8:00 a.m. to noon
                   period and administrative (police chief) duty
                   during the noon to 4:00 p.m. period, on Monday
                   through Friday.  No patrol officer would be on
                   duty during these 40 hours.

              (3)  No patrol officer would be scheduled from 8:00
                   a.m. to 4:00 p.m. on Sundays.

              (4)  The overlap shift would be discontinued.

         The letter claimed that these changes were not inconsistent with
         any of the Town's existing bargaining proposals or tentative

    10.  It is unclear when Peluso received the letter.  Soucie, however,
         left Town on November 9th until the 19th.  When Peluso called to
         object to these changes, Soucie had already left.

    11.  On November 16, 1979, the Town's first of several newspaper advertise-
         ments for a patrol officer was published.  Although it was not yet
         clear to the Union at this point that the Town had decided to main-
         tain only three officers, that prospect was suggested in the letter
         and the Town did not subsequently employ four patrol officers.  On
         March 12, 1980, when the next year's police department budget was
         submitted, only three officers were provided for.  The decision to
         remain at this level was firm by January 1980.

    12.  A second resignation was also submitted. It was effective on December
         9th.  As a result, by mid-December the force had been reduced to only
         two patrol officers.  In December and January 1980, Patrol Officer
         Keene was on sick leave for six weeks leaving only one active patrol
         officer, although a new officer was hired and then terminated around
         this time.  During this period the Chief worked a number of patrol
         officer shifts during which he was paid straight time although they
         were beyond 40 hours per week.  This pay was less than that paid to
         a patrol officer on overtime pay.  Police coverage was presumably
         provided for in this period by liberal use of reserve pool officers.

    13.  By the end of January 1980, when a new officer was finally hired
         after difficulties with applicants, the force, with the return of
         Keene, was back to a level of three patrol officers.  The schedule
         currently being utilized calls for four days on and two days off
         every six days.  This schedule was arrived at without any participa-
         tion by the Union.  The schedule provides for 40 hours per week on
         only two out of three weeks.  Thirty-two hours are scheduled for the
         third week.  During the short week, however, the officer always has
         the option of working a day shift on Saturday or Sunday.  On most
         occasions the officers choose to work the optional shift.

    14.  Since the November change, Officer Keene has not been scheduled to
         work a weekday daylight shift.  Consequently, he has only worked one
         of the two night shifts and has not been able to see his family in
         the evening as much as before.

    15.  On February 19, 1980, there was a collective bargaining fact-findinq
         hearing, followed by a report dated February 28, 1980.  Among the
         issues in dispute were a Union request for a provision which would
         prohibit the


         Chief from doing bargaining unit work, i.e., patrol officer duty.
         The Town wanted its past practice of freedom in this area to be
         continued.  The fact-finders recommended that the Chief work a
         maximum of two shifts (16 hours) per week of patrol officer duty.
         The Union also sought a provision for the regular scheduling of
         the overlap shift as a safety issue.  The Town wanted to retain
         total control over this.  The fact-finders recommended that the
         Town's proposal be accepted.

   16.   At the time of the hearing, no contract had been reached although
         there were ongoing negotiations.  The Union presented statistics
         prepared by the Town that demonstrated that crime bad been on the
         rise in Town while the police coverage had been shrinking.  The
         Police Chief also stated that the Town had suffered a drop over the
         past two years of its "clearance rate": the percentage of crimes
         solved, arrests made, and property recovered.


     The Union argues that a number of these changes constitute Unlawful
unilateral changes in working conditions.  The Town argued that it was acting
consistently with past practice in each of these areas, was responding in the
only way it could to a personnel emergency, or that it was consistent with a
tentative agreement reached in negotiations.[fn]1  Neither party, however,
focused on the key fact, that is, that the parties had reached an impasse in
negotiations before these changes were instituted.

     It is axiomatic that the unilateral change rule, see State of Maine
(Bureau of Alcoholic Beverages) v. Maine Labor Relations Board, 413 A.2d 510
(Me. 1980), is inapplicable where the parties have reached impasse, one of
the four exceptions to the rule.  See, Maine State Employees Association v.
State of Maine, MLRB No. 78-23 (July 1, 1978) at page 4, aff'd, State v.
M.L.R.B., Kennebec Super. Ct. CV-78-484 (Aug. 7, 1979), aff'd, 413 A.2d 510
(Me. 1980).  Rather, in the event of a bona fide impasse, a public employer
is "bound to either continue existing conditions or institute its last best
offer" in the collective bargaining process.  Easton Teachers Association v.
Easton School Committee, MLRB No. 79-14 (March 13, 1979) at page 4 n.2; see,
N.L.R.B. v. Intracoastal Terminal, Inc., 286 F.2d 954, 47 LRRM 2629 (5th Cir.
1961).  Thus, a public employer may institute changes consistent with its
current impasse bargaining position, whether that position is reflected in a
tentative agreement or not.

     Accordingly, since the parties were at impasse at the time of these
changes, we need only inquire as to whether the Town acted consistently with
its impasse positions as reflected by the three articles quoted in Finding of
Fact par. 6.  In one of the three changes, it has not done so:  the change of
shift assignments could be accomplished only "after notifying and meeting with
the Union."  The Town, however, instituted a massive change in shift assign-
ments, including the elimination of the

1.  The Town's post-hearing letter brief is dominated by factual arguments
    based on alleged facts which were not in the record; this despite the
    fact that the Town had ordered a transcript of the hearing.  Accordingly,
    we have rejected consideration of this brief except for such legal argu-
    ment as is based on evidence in the record.


day shift during the week, without meeting with the Union.[fn]2  It is also
apparent that meaningful prior notice was not provided since, by leaving Town
immediately prior to the planned change, the Town Manager obviously indicated
that he did not intend to comply with the provisions for consultation.  Thus,
by violating the very provisions it was then proposing in good faith that the
Union accept as a bilateral agreement for the assignment of work shifts, the
Town was ignoring the collective bargaining process and, in effect, refusing
to bargain in good faith with the Union.

     The Town's "business exigency" argument is meritless.  The Police Depart-
ment had three full weeks notice of the impending resignation and yet did not
at any time notify the Union of the impending situation.  In theory, at least,
providing the Union with an opportunity to consult in the new shift assignment
schedule that would be required in this event would have facilitated the
attainment of the least disruptive resolution.  Moreover, if the Town had
really considered this to be a temporary response to a business emergency, it
could have offered a meeting at the earliest possible time in order to get
the Union's input, or at least, it could have recognized the Union's interest
in such.  This would have been in keeping with the spirit of both Article 19
and of collective bargaining.  

     With respect to the overlap shift and the unit work issues, however, the
Town has acted entirely within the bounds of Article 5 and Article 8.  Article
5 authorizes the Town to act without limitation in any area not otherwise
modified.  There is no provision in the record purporting to modify the Town's
exclusive control of the use of the overlap shift.  Consequently, it is
totally consistent for the Town to exercise exclusive control in this area.

     Similarly, whether the Chief performs unit work at times when bargaining
unit employees are not available is a question which, at impasse, the Town had
been proposing to retain for its control.  There is no question but that with
only three patrol officers, bargaining unit employees are not available to
work each of the 21 possible shifts each week.  Accordingly, it was not
inconsistent with Article 8 for the Chief to work outside of his normal
duties, that is, as a patrol officer under those circumstances.[fn]3

     In summary,[fn]4 the Town has violated Section 964(1)(E)[fn]5 of the Act
because it

2.  While it was legitimate for the Town to decide to convert to a five-day
    week as agreed in Article 19, it could not make the shift changes it did
    without complying with the remainder of the Article.

3.  Whether or not such practice could continue indefinitely is another issue,
    however, which is not presented for determination in this case.  That is,
    it may very well be that the Town cannot on the one hand be responsible
    for the unavailability of bargaining unit employees while on the other
    hand invoking Article 8 based on that unavailability.  Presumably, however,
    this unit work issue will be resolved either by agreement or by binding
    interest arbitration.

4.  Although not pleaded, the Union also complained of a loss of overtime
    opportunities because the Chief worked additional vacant patrol officer
    shifts for a period of time.  However, such evidence was unclear and, we
    suspect, would be subject to the same impasse defense applicable to the
    basic unit work issue.  See footnote 3.

5.  A violation of Section 964(1)(E) is also a derivative violation of Section


has failed to collectively bargain as required by Section 965(1)(C) by acting
inconsistently with its impasse position with respect to shift assignments.
Such a violation, however, is difficult to adequately remedy.  On the one
hand, it is clear that schedule disruptions and the denial of day shift
opportunities can work serious injury to the life style of individual patrol
officers.  On the other hand, this harm is relatively intangible and no
specific injury was demonstrated.  Moreover, if the Town had followed the
procedure being negotiated, it could have met with the Union within a short
time and instituted shift assignment changes thereafter.  We will therefore
issue a cease and desist order and require that the Town meet with the Union
upon request to discuss shift assignments, unless the parties have otherwise
agreed since this hearing.


     Pursuant to Section 968(5)(C) of the Municipal Public Employees Labor
Relations Law (Act), the Maine Labor Relations Board hereby orders that the
Town of Livermore Falls, its officers, agents, and successors, shall:

     (1)  Cease and desist from refusing to bargain collectively with
          Teamsters Local Union No. 48 as required by Section 964(1)
          (E) of the Act by making changes in working conditions in a
          manner which is inconsistent with its last best offer prior
          to an impasse in negotiations;

     (2)  Unless agreed otherwise through collective bargaining after
          the hearing in this case, meet within ten days of a request
          by Teamsters Local Union No. 48 to discuss shift assignments
          in order to fully comply with Article 19 referred to above.

Dated at Augusta, Maine, this 20th day of August, 1980.

                                       MAINE LABOR RELATIONS BOARD

                                       Edward H. Keith

                                       Wallace J. Legge
                                       Employee Representalive

                                       Don R. Ziegenbein
                                       Employer Representative