STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                         Case No. 80-46

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

     Teamsters Local Union No. 48, State, County, Municipal and University
Employees in the State of Maine (Union) filed this prohibited practice
complaint on May 5, 1980.  The City of Bangor filed its answer and motion to
dismiss on May 23, 1980.  The complaint alleges that the City unilaterally
changed the duties of its police officers when it ordered them to work, under
threat of discharge, at the County Jail.  The City answered that it acted, in
an emergency situation, within the terms of its existing collective bargaining
agreement with the Union.  Further, it argued that the complaint should be
dismissed because the Union had failed to use the grievance procedure.

     Alternate Chairman Gary F. Thorne conducted a pre-hearing conference on
June 27, 1980, after which he issued a Pre-Hearing Conference Memorandum and
Order of the same date, the contents of which are incorporated herein by
reference.  The parties agreed to all the facts and submitted the case to the
Maine Labor Relations Board (Board) on briefs.  The Union was represented by
Jonathan G. Axelrod, Esq.; the City, by Malcolm E. Morrell, Jr., Esq.
Both parties filed 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. Sec. 968(5).


     The facts as stipulated by the parties and determined by the Board are as

          1.  The Union is the exclusive bargaining agent for all Police
              Officers (Class 433) of the Bangor Police Department and a
              public employee organization within the meaning of 26 M.R.S.A.
              Sec. 968(5)(B) and 962(2); the City is a public employer within
              the meaning of 26 M.R.S.A. Sec. 968(5), 962(7) and 964(1).

          2.  On April 11, 1980, the Chief of Police issued a memorandum

                  "It has been determined that an emergency situ-
                   ation exists at the Penobscot County Jail.
                   Members of the Bangor Police Department will
                   be detailed to assist there and these assignments


                   will be considered City overtime payable at time
                   and one-half.  This is deemed necessary to pre-
                   serve order and protect the public during emer-

              The police officers were advised that a refusal to respond to
              such assignment would be considered a failure to obey orders
              and the employee would be subject to discharge.

          3.  The police officers did work at the County Jail as directed
              and were paid overtime pursuant to the collective bargaining
              agreement in effect between the parties from January 1, 1980,
              to December 31, 1981 (Agreement).

          4.  There is no evidence that the Union requested to negotiate
              the alleged unilateral change at any time.

          5.  Article 4 of the Agreement states, in part:

                  "Section 1. The duties of the Police Officers shall
                   be those juties that come under the jurisdiction of
                   the Chief of Police including the enforcement of City
                   ordinances, state and federal statutes, patrolling
                   of City streets for crime prevention and traffic
                   control and the preservation of life and property."

              Article 30 of the Agreement states:

                  "Management Rights

                   Except as explicitly limited by specific provision
                   of this Agreement, the City shall continue to have
                   the exclusive right to take any action it deems
                   appropriate in the operation of the Police Depart-
                   ment and direction of the work force in accordance
                   with its judgment.  Such rights shall include, but
                   shall not be limited to, the operation of the police
                   force, direction of the working forces, the right
                   to hire, to suspend or to discharge for just cause,
                   to change assignments, to promote, to reduce or
                   expand the working forces, to transfer, to maintain
                   discipline, to establish work schedules, and to
                   introduce new or improved methods or facilities."

             Article 22 of the Agreement, Grievance Procedure, states in part:

                  "Section 3. If the grievance has not been adjusted
                   informally as above suggested it may be submitted
                   to the following procedure:

                     A. The steward . . . shall take up the grievance
                     or dispute with the Chief of Police within ten
                     (10) days after the date of the [controversy,
                     complaint, misunderstanding or dispute as to the
                     meaning or application of the specific terms of
                     the Agreement] or of the officer's knowledge of
                     of its appearance."


     While it is preferable for the parties to resolve disputes through their
collectively bargained grievance procedure, the jurisdiction of the Board is
not displaced by the existence or use of such a procedure.  Rather, where
necessary to adjudicate a prohibited practice, the Board may interpret a
contract, give effect to its terms, and proscribe conduct which is a
prohibited practice even though it is also a breach of contract remediable
through arbitration.  See, N.L.R.B. v. Strong,


393 U.S. 357, 70 LRRM 2100 (1969).  Thus, since the grievance process is not
available, the Board will neither defer, see Collyer Insulated Wire, 192 NLRB
837, 77 LRRM 1931 (1971), nor dismiss the case on the City's motion, see 26
M.R.S.A. Sec. 968(5) A).

     After a consideration of the merits, however, we conclude that the
complaint must be dismissed.  It is uncontested that the Chief's assignment
was for the purpose of preserving order and protecting the public within the
City of Bangor.  Article 4 of the Agreement states that the duties of the
police officers include the preservation of life and property within the
Chief's jurisdiction.  Therefore, since the Chief's jurisdiction includes the
broad responsibility of protecting the public within the city,[fn]1 the
assignment of police officers for this purpose must be said to be within
the bounds of what the parties have agreed upon in advance when they executed
the Agreement.  Accordingly, the City has not unilaterally changed working
conditions.  The complaint is therefore dismissed.

Dated at Augusta, Maine, this 6th day of October, 1980.

                                       MAINE LABOR RELATIONS BOARD

                                       Donald W. Webber
                                       Alternate Chairman

                                       Wallace J. Legge                                                                        
                                       Employee Representative

                                       Don R. Ziegenbein
                                       Employer Representative

1  It is clear, on the basis of the Union's representations as to the Bangor
City Ordinances, that "the Police Chief is broadly 'responsible for the
enforcement and maintenance of law and order and the protection of public
safety, morals and welfare' (Ch. 11, Art. 13 Section 3-1) . . . ."
Complainant's Brief, page 3 and 4.  In contrast, whether or not the County
Sheriff should have deputized the police officers, as argued by the Union, is
not an issue in the case.