The prohibited practice complaint in this matter was filed on 
December 28, 2015, and amended on February 9, 2016.  The Complaint 
alleged the Fraternal Order of Police ("FOP") breached the duty of 
fair representation owed to members of the Madison Police Depart-
ment in dealing with both the Town of Madison and the Somerset 
County Sheriff's Department regarding the dissolution of the 
Town's police department and assumption of the policing responsib-
ility by the Sheriff's Department effective July 1, 2015.  On 
February 16, 2016, the Executive Director dismissed the portion of
the Complaint concerning Somerset County because the County had no 
obligation to bargain with respect to newly-hired employees and, 
consequently, the charge against the FOP failed to state a claim.  
The Executive Director ruled that the remaining allegations 
regarding the FOP's dealings with the Town of Madison could 
proceed to hearing. 
      
     The Complaint as amended alleges that the Fraternal Order of 
Police violated 26 M.R.S. §964(2)(A) when it breached its duty of 
fair representation in dealing with the Town of Madison.  
Specifically, the amended complaint alleges that the FOP breached


[end of page 1]


 
its duty by, A) failing to pursue impact bargaining to arbitration 
after bargaining with the Town regarding the added cost of health 
insurance faced by the police department employees by moving to 
the Somerset County Sheriff's Office; and B) failing entirely to 
pursue impact bargaining on other issues, such as loss of 
seniority and rank.
      
     The Board held an evidentiary hearing on October 20, 2016, 
and February 3, 2017.  Throughout this proceeding, Complainant 
Trask has been represented by Robert E. Sandy, Esq., and 
Respondent FOP has been represented by Benjamin K. Grant, Esq.  
Both parties were able to examine and cross-examine witnesses, 
offer documentary evidence at the hearing, and submit written 
argument.  Chair Jeffry J. Knuckles, Esq., presided at the
hearing, with Employer Representative Robert W. Bower, Esq., and 
Employee Representative Ms. Amie M. Parker.  The parties' post-
hearing briefs were both filed by March 17, 2017, and the Board 
deliberated this matter on March 20, 2017.


                            JURISDICTION

     The Fraternal Order of Police is a bargaining agent within 
the meaning of 26 M.R.S. §962(2).  Mr. David Trask was a public 
employee as defined by 26 M.R.S. §972(6) and was part of the Town 
of Madison's Police Department bargaining unit at the relevant 
times.  The jurisdiction of the Maine Labor Relations Board to 
hear this case and to render a decision and order derives from 26 
M.R.S. §968(5).


                         FINDINGS OF FACTS


 1.  Complainant David Trask was employed by the Madison Police 
     Department for over 27 years as a police officer, a 
     corporal, then a sergeant since 2002.  In early 2015, the 


[end of page 2]


     Madison Police Department consisted of the Police Chief, 
     Sergeant Trask, four other police officers and a secretary.  
     Mr. Trask was the only sergeant and had the most seniority 
     of any of the officers.

 2.  The Maine Association of Police had previously represented 
     the Madison Police Department bargaining unit.  The last      
     collective bargaining agreement expired June 30, 2010, and 
     the terms and conditions of employment continued to be 
     maintained while the parties attempted to negotiate a 
     successor agreement.  The article on health insurance 
     coverage required the Town to pay 100% of the premium costs 
     for single, two-person and family coverage.

 3.  In 2012, the FOP became the bargaining agent for the unit
     and began bargaining with the Town for a new bargaining      
     agreement in mid-2013.  Mr. Jack Parlon, a labor specialist 
     employed by the FOP, was the chief negotiator and represent-
     ative for the FOP unit.  Negotiations and mediation 
     continued through 2013, and the parties eventually filed for 
     interest arbitration in 2014, though the arbitration never 
     occurred.  The terms and conditions of the agreement that 
     expired in 2010 continued to be maintained while the parties 
     pursued the impasse resolution procedures.

 4.  Mr. Parlon testified that bargaining seemed to be heading to 
     impasse over wages and medical insurance.  He also testified 
     that the rancor between him personally and certain members 
     of the Town's bargaining team had reached a point where he
     felt it was no longer productive.  The FOP switched the lead 
     negotiator responsibility to Timothy Farwell, another FOP      
     labor representative, although it is not clear when in 2014 
     this happened.


[end of page 3]


 5.  In August of 2014, the assessed value of the Madison Paper 
     Industries' mill (until then, the Town's largest taxpayer) 
     dropped from nearly $230 million to $80 million, causing a 
     loss of tax revenue for the Town of about $2.2 million.
  
 6.  Following a Town meeting that September, the Town took 
     measures to fill the budget gap by increasing the mil rate, 
     issuing a freeze on all capital expenditures, reducing all 
     department budgets by 3%, spending from reserves, and 
     obtaining a line of credit. 
 
 7.  During this period, the FOP representatives and the Town's 
     representatives had discussions about the effect of this 
     loss of tax revenues on the fiscal year 2014-2015 budget and 
     beyond.  The FOP labor specialists spoke to the membership 
     about the devaluation and they discussed how the changed 
     economic situation could impact negotiations.  Mr. Parlon 
     testified that their impression was that the Town was using 
     the devaluation of the mill as an excuse to avoid their 
     bargaining obligation or to force the FOP to acquiesce to 
     the offer the Town had on the table. 

 8.  On December 23, 2014, the FOP filed a Prohibited Practice 
     Complaint (PPC) against the Town charging a failure to 
     bargain in good faith.  Following standard MLRB procedure, 
     the parties were notified that a prehearing conference was 
     scheduled and that by March 26, 2015, the parties would have 
     to exchange pre-hearing submissions, including lists of 
     witnesses, exhibits and a statement of relevant issues of 
     fact and law.  See MLRB Rules Ch. 12, §10(2).

 9.  Dale Lancaster took office as the Sheriff of Somerset County 
     on January 1, 2015.  His offices are located in Madison, as      
     is the Somerset County Jail.  Sometime in February, Town 
     officials approached the Sheriff to inquire about whether 


[end of page 4]

     the Somerset County Sheriff's Department could provide 
     police services for the Town of Madison.  This request was 
     prompted by the need for budget savings and the recent 
     announcement by the Madison Police Chief that he would 
     retire at the end of the fiscal year.  Sheriff Lancaster met 
     privately with the Police Chief three or four times to 
     assess the matter and develop a model of what police 
     services would look like if the Sheriff's Department took it 
     over.  In order to determine the costs of performing police 
     services for the Town, the Sheriff had to consider the 
     costs, assets, and budgets under which the Police Department 
     operated.  The Sheriff worked closely with the Police Chief 
     to understand the basis for each line item in the budget as 
     well as the logistics of implementing such a proposal.  The 
     model that served as the basis for the Sheriff's proposal to 
     the Town (which included the cost details) was based on the 
     Madison Police Department employees being hired as new 
     employees, maintaining the same offices in town and the same 
     level of services, and being budget neutral for the County.

10.  On March 24, 2015, a detailed article appeared in the 
     Central Maine Morning Sentinel describing the previous 
     night's vote of the Madison Board of Selectmen in favor of a 
     proposal to dissolve the Police Department effective July 1, 
     2015, and have law enforcement responsibilities administered 
     by the Somerset County Sheriff's Department.  The article 
     indicated that the proposal would be presented in a public 
     hearing and the change would be subject to the voters' 
     approval at a Town Meeting.  The article stated that the 
     five patrol officers and the secretary at the Madison Police 
     Department would be able to work for the sheriff's 
     department in Madison.  Specifically, the article stated:


[end of page 5]


         In Madison, the cost of contracting with the 
         sheriff's department would generate cost savings 
         through the elimination of salary and benefits for 
         the chief and changes in salaries and benefits for 
         officers, Lancaster said.  He said Madison patrol          
         officers' pay would not be cut and that the 
         savings would come mostly from insurance costs.


11.  The publication of the article was the first notice that the 
     Town was pursuing this plan.  Mr. Parlon testified that 
     there had been rumors that the Town was considering a 
     contract with the Sheriff's office to handle policing, but 
     he thought it was a scare tactic to put pressure on them to 
     accept the Town's last offer.
  
12.  Shortly after the article appeared, the parties to the 
     pending PPC had to file their prehearing submissions.  The 
     FOP's submission identified as one relevant issue of fact or 
     law whether the "'mill devaluation' was a bona fide unfore-
     seen event that led to the statement that Madison might 
     reduce its last, best offer."[fn]1  The FOP's submission also 
     identified the question of whether a "mootness" issue arose 
     from the recently-announced proposal to eliminate the Police 
     Department.  At the prehearing conference, the parties 
     agreed to stay the proceeding and the PPC was eventually 
     withdrawn after the dissolution of the police department.

13.  Mr. Parlon testified that he had never encountered a 
     situation in which a town disbanded its police department. 
     During the period following the publication of the newspaper 
     article, the FOP had a couple of meetings with members of 
     the Madison Police Department bargaining unit.  Mr. Parlon 
     also had several telephone conversations with Trask and 
     other unit members.

[fn]1  The Board takes administrative notice of the FOP's prehearing submission 
for PPC No. 15-16, FOP v. Town of Madison, which was attached to 
Respondent's brief.


[end of page 6]

 
14.  Mr. Trask testified that immediately after the newspaper 
     article appeared in March, there were no formal meetings or      
     memos from the FOP specific to the proposed change, though 
     there were individual conversations between unit members and 
     with the two FOP representatives.

15.  The Town held a public hearing on the proposal on April 6, 
     2015.  Sheriff Lancaster explained the objectives involved 
     of providing the same policing service, keeping the Town's 
     police office open, hiring the police officers as deputies 
     but restricting their detail to Madison, and having the 
     entire plan be budget neutral for the County.  The Sheriff 
     indicated that the 5 officers and the secretary would become 
     County employees and fall under county wages and county 
     benefits.  The savings would be from the costs of 
     administration and benefits.
  
16.  There were at least twenty citizens present at the public 
     hearing and the Sheriff responded to numerous questions.  
     Some of the citizens were concerned about the proposed 
     change for reasons such as loss of control over the police 
     department, less policing service, and long-term costs.  
     Some citizens saw it as practical way to make one step in 
     closing the budget deficit, but not everyone agreed that the 
     cost savings were large enough to justify the change.  
     Someone asked if the officers would have the opportunity for 
     advancement within the Sheriff's department and whether the 
     resulting vacancy would be backfilled.  The Sheriff said yes 
     to both questions and said that conversations with the Union 
     were "going on right now."
 
17.  There were no comments or questions from the audience that 
     were presented as a Union concern, though not all speakers 
     identified themselves when they spoke.  Mr. Parlon did not 


[end of page 7]


     attend this public hearing, but Ms. Stacy Hatch, the Police 
     Department secretary who served as the unit president, did 
     attend.  There was no evidence that the Union or any members 
     of the bargaining unit attempted to influence the vote of 
     the Town residents on the proposed change.

18.  At the public hearing, the Town representatives stated that 
     the proposal would go to a vote in their Town Meeting as one 
     component of the Town's budget.  Thus, the proposal would be 
     directly voted on by the citizens at their Town Meeting.

19.  Mr. Trask testified that the Town's proposal came up in 
     meetings and in general conversations, but the proposal was 
     not viewed as having any bearing until after it was voted on 
     by the Madison citizens.  He also testified that it was "a 
     commonly-held belief" within the Madison Police Department 
     that they would be coming under the Sheriff's Department 
     contract "but in the same positions, only sort of being 
     given an entirely fresh contract and be under those terms."
  
20.  The FOP is the bargaining agent for the Law Enforcement 
     division of the Somerset County Sheriff's Department in 
     addition to being the bargaining agent for the Madison 
     Police Department.  The FOP's relationship with the Sheriff 
     is not particularly hostile, but is based on a degree of 
     mutual respect:  both sides were able to bargain hard for 
     their respective interests.  Mr. Parlon served as the lead 
     negotiator for this bargaining unit.  During the spring of 
     2015, the FOP and the Sheriff's Department were negotiating 
     a successor agreement to the agreement that was set to 
     expire on June 30, 2015.  The dates of the bargaining 
     sessions between the FOP and the Sheriff's Department were 
     not established in the record, but the first one appears to


[end of page 8]

 
     have occurred prior to April 6, 2015, and the new collective 
     bargaining agreement was finalized by June 30, 2015. 

21.  At some point during these discussions between Mr. Parlon 
     and Sheriff Lancaster, the Sheriff suggested a memorandum of 
     agreement (MOA) that addressed the terms of employment for 
     the Madison employees who would be coming in as county 
     employees.  Mr. Parlon was opposed to this, as he thought it 
     would create two classes of employees with different terms 
     and conditions of employment.  When Mr. Parlon raised the 
     issue of the Madison officers' rank and seniority, the 
     Sheriff made it clear that the Madison police officers would 
     be hired as new employees and could either accept the job 
     offer or not.  They would be evaluated and treated as new 
     employees, subject to the standard probationary period.
  
22.  Mr. Trask was very clear to Mr. Parlon that he was concerned 
     about his seniority, his rank, and the transition to the 
     Sheriff's Department.  Mr. Parlon testified that because the 
     President of the Somerset County Law Enforcement unit had a      
     personal relationship with Mr. Trask, sometimes he spoke 
     with him about the issues raised by Mr. Trask.

23.  At some unspecified time before the June 8 vote, Mr. Parlon 
     had conversations with the Town's attorney, Matt Tarasevich.  
     These conversations generally concerned the Town's intent 
     and what the Town was going to do with the Police Department 
     employees, although further detail was not provided.
 
24.  Mr. Parlon testified that they did not request impact 
     bargaining until it became clear that the proposed plan 
     would be adopted when the voters of Madison approved it in 
     the Town Meeting.  Mr. Parlon testified that it did not make 
     sense to impact bargain at an earlier stage before knowing 
     what the plan was.


[end of page 9]

  
25.  At the Town Meeting of June 8, 2015, the voters were 
     presented with two budget options for police services. The 
     higher one represented the cost of continuing with the 
     Madison Police Department, and the lower amount represented 
     the proposal to have the Sheriff's Department take over 
     policing services.  The voters approved the latter, and the 
     change was to be effective July 1, 2015. 

26.  Mr. Trask met with Sheriff Lancaster shortly after the Town 
     vote.  He learned that he would not retain his rank or 
     seniority and that he would be a patrol deputy on a 
     probationary status.
 
27.  Mr. Trask contacted Mr. Parlon shortly after the town vote 
     in June to discuss the impending loss of seniority and 
     benefits, and the health insurance costs.  Under the 
     collective bargaining agreement for the Sheriff Department 
     Law Enforcement Division, the individual employee's health 
     insurance is fully paid by the County, but the employee must 
     contribute 70% of the added cost for dependent coverage.  
     There were three employees affected by this change.  For 
     family coverage, the added amount was around two thousand 
     dollars annually over the cost as Madison Police Department 
     employees.  Mr. Parlon said there was a limited amount that 
     they could do for the Police Department because the 
     bargaining unit would cease to exist and the benefits and 
     protections of the collective bargaining agreement would be 
     gone.  Mr. Parlon said they were scheduling an impact 
     bargaining session to discuss the economic impact the change 
     was going to have on some employees.
  
28.  On June 9, 2015, the FOP sent a formal request to bargain 
     the impact of the plan approved by the Madison voters. This 
     letter was addressed to both the Town of Madison's Interim 


[end of page 10]


     Town Manager and the Somerset County Administrator but was 
     only delivered to the Town.

29.  On July 1, 2015, the former Madison Police Department 
     employees were hired by Somerset County as new employees.  
     The Police Officers were hired as Deputies and were placed 
     in the pay scale at steps reflecting their experience as law 
     enforcement officers.  No employee suffered a loss in base 
     pay, and Mr. Trasks hourly rate went from $19.19 to $19.63.  
     Mr. Trask received a check from the Town of Madison for 
     accumulated time-off benefits.

30.  An impact bargaining session with the Town was held on July 
     13, 2015.  Mr. Parlon invited Mr. Trask to attend this 
     meeting, even though Mr. Trask was not a member of the FOP 
     bargaining team.  Also present were FOP Labor Representative 
     Tim Farwell, attorney Matt Tarasevich, the vice chair of the 
     Select Board, and the Town Manager.

31.  The impact bargaining session focused on the financial 
     impact on the affected employees due to the significantly 
     higher contribution to the health insurance premiums for 
     those with dependent coverage.
  
32.  Mr. Trask testified that during the impact bargaining 
     session he participated in the discussion, was able to voice 
     his concerns over the increased health care costs for him, 
     and that Mr. Parlon was very much supportive of his 
     concerns.  Mr. Parlon testified that the Town seemed 
     receptive to the arguments they presented, and at the end of 
     the meeting the Town indicated they needed time to think it 
     over.
  
33.  Mr. Tarasevich called Mr. Parlon later, and stated that the 
     Town was not legally obligated to do anything and, conse-


[end of page 11]

 
     quently, would not do anything.  According to Mr. Parlon, 
     Mr. Tarasevich made it clear the Town would not budge.

34.  The FOP made no further effort to bargain with the Town of 
     Madison over the impact of the dissolution of the police      
     department, nor did the union file for mediation.  Mr. 
     Parlon testified that based on legal advice from both the 
     FOP attorneys at the national and at the state level, he was 
     doubtful of the Town's legal obligation to bargain over the 
     impact of the Madison voters' decision to dissolve the 
     police department.
 
35.  Mr. Parlon's efforts on behalf of the Madison Police 
     Department employees with respect to their county employment 
     resulted in the officers being covered by the collective 
     bargaining agreement for the Law Enforcement division, 
     rather than a separate MOA.  He was less successful in 
     getting the Sheriff to address their concerns about rank and 
     seniority, other than the Sheriff's placing them in the pay 
     scale at steps reflecting their experience.
  
36.  Although Mr. Trask testified as to his own theory of what 
     the FOP could have done to pursue the matter with the Town 
     after impact bargaining, there is nothing in the record to 
     indicate that he communicated this view at any time nor did 
     he submit any sort of request to the FOP to continue to 
     demand bargaining on the police services issue.  There was 
     no testimony that Mr. Trask or any other former member of 
     the Madison Police Department ever expressed any 
     dissatisfaction with how the FOP had handled these issues. 

37.  At some point after the move to the Sheriff's Department but 
     before he filed the PPC, Mr. Trask met with Mr. Chapman, the


[end of page 12]


     local Maine attorney retained by the FOP.[fn]2  Mr. Trask's asked 
     if there was some avenue to "undo the damage" and restore 
     things to the way they were.  Mr. Trask testified that Mr. 
     Chapman said that "there was nothing that he knew of that 
     could be done to change what had happened at that point in 
     time."  It is not clear when this meeting occurred.

38.  At some point prior to December 2015, the Sheriff had a 
     counseling session with Mr. Trask about his performance.  
     The Sheriff granted Mr. Trask's request to have an FOP 
     representative with him during this session.  The 
     representative was Mr. Chapman, the attorney mentioned in 
     the preceding paragraph.  It is not clear if Mr. Chapman met 
     with Mr. Trask on two separate occasions or just once.
 
39.  In December of 2015, Mr. Trask was informed by the Sheriff 
     that things were not working out and that his employment was 
     terminated.  As Mr. Trask was a probationary employee, the 
     Sheriff was not obligated to base his decision on "just 
     cause," as would be necessary for non-probationary employees 
     under the terms of the collective bargaining agreement. 
 
40.  Mr. Trask filed his prohibited practice complaints against 
     the Town and against the FOP on December 28, 2015.


                            DISCUSSION

     The question presented is whether the FOP breached the duty 
of fair representation owed to the Complainant by not demanding 
further impact bargaining with the Town of Madison after the 
single meeting on July 13, 2015, and by not raising any issues 
other than health insurance costs in that bargaining session.  
Although not specifically raised in the Complaint, we will also 

[fn]2  This meeting was a benefit available to Mr. Trask through the FOP's
legal defense plan.


[end of page 13]


address the argument raised in the Complainant's brief of an 
alleged breach by the failure of the FOP to demand impact 
bargaining prior to the citizens' vote at the Town meeting.  Given 
the specific circumstances of this case, we hold that the FOP did 
not breach its duty of fair representation because its conduct was 
not outside of the "wide range of reasonableness" that must be 
afforded to a union in the conduct of its affairs.  
      
     The FOP has a duty of fair representation that extends to all 
employees in the Madison Police Department bargaining unit.  This 
duty derives from 26 M.R.S. §967 sub-§ 2 ¶5, which grants the 
bargaining agent the sole and exclusive authority to act as the 
bargaining representative for the employees in the bargaining unit 
and includes the corresponding obligation to represent all of the 
employees in the unit fairly.  This Board and the Maine Law Court 
have held that the duty of fair representation is breached only 
when a union's conduct toward a bargaining unit member is 
arbitrary, discriminatory, or in bad faith.  Lundrigan v. MLRB, 
482 A.2d 834 (Me. 1984), Brown v. MSEA, 1997 ME 24, ¶7, 690 A.2d 
956.  See also Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903 
(1967). 
      

     In defining the scope of the duty of fair representation, 
Maine law is comparable to the duty of fair representation under 
the National Labor Relations Act.  See Langley v. MSEA, No. 00-14, 
at 25 (March 23, 2000), aff'd, 2002 ME 32, 791 A.2d 100.  A 
finding that the union's conduct is arbitrary, discriminatory or 
in bad faith involves the following analysis:

     A union's actions are arbitrary only if, in light of 
     the factual and legal landscape at the time of the 
     union's actions, the union's behavior is so far 
     outside a wide range of reasonableness as to be 
     irrational.  A union's discriminatory conduct violates 


[end of page 14]


     its duty of fair representation if it is invidious.  
     Bad faith requires a showing of fraud, or deceitful or 
     dishonest action. 

David J. Jordan v. AFSCME, No. 07-15 (June 18, 2008) at 16, and 
Sharron V. A. Wood v. MEA and MTCS, No. 03-06 (April 21, 2005) at 
28, quoting Aguinaga v. United Food & Commercial Workers Int'l 
Union, 993 F.2d 1463, 1470 (10th Cir. 1993) cert. denied, 510 U.S. 
1072 (1994)(internal quotations and citations omitted).  Further-
more, it is well established that "'[m]ere negligence, poor 
judgment or ineptitude are insufficient to establish a breach of 
the duty of fair representation.'"  Lundrigen v. M.L.R.B., 482 A.2d 834, 
836 (Me. 1984), quoting Ford Motor Co. v. Huffman, 345 
U.S. 330, 338, 73 S.Ct. 681, 686 (1953).

     Here, the Complainant argues that the FOP's conduct was 
arbitrary.[fn]3  The essence of the Complaint is that the FOP could 
have,and should have, done more and should have demanded impact 
bargaining earlier.[fn]4  We must assess the reasonableness of the 
Union's conduct in light of the factual and legal landscape at 
time of the alleged breach.  Airline Pilots Assoc. v. O'Neill, 499 
U.S. 65, 67 (1991).  In this case, that means assessing the 
reasonableness of the conduct from the time the proposal was 
announced through the implementation in July, not as perceived in 
December when Mr. Trask's employment was terminated.  Id. at 79 
("A settlement is not irrational simply because it turns out in 
retrospect to have been a bad settlement.")  We will consider the 
alleged breaches chronologically.

[fn]3 The Complainant identifies no facts to support his claim of 
discriminatory treatment, but simply asserts, "The injury caused to 
Sergeant Trask was so great, and the indifference to that injury by the 
Union so offensive, as to be discriminatory".  Br. at 11-12.

[fn]4 In its brief, the Complainant raises for the first time an alleged 
breach of the duty of fair representation in the FOP's failure to demand 
bargaining over the decision to contract with the Sheriff's, as distinct 
from the impact of that decision.  We dismiss this charge as untimely. 


[end of page 15]


     The factual landscape in the first months of 2015 includes 
the $2.2 million budget shortfall faced by the Town, the Police 
Chief's pending retirement, the bargaining history between the 
Town and the FOP including the prohibited practice complaint filed 
in late 2014, the informal discussions that occurred after the 
Town announced the plan, the mixed reaction to the proposal from 
Town residents at the April 6 public hearing, the lack of evidence 
that the Madison police officers were opposed to becoming 
deputies, and the absence of evidence that unit members were 
advocating for the FOP to take a different approach to impact 
bargaining.  
      
     The legal landscape at the time of the alleged breach was the 
action taken by the Board of Selectmen to present the proposed 
move of policing services to the Town residents for approval at a 
Town meeting, the statutory declaration that the duty to bargain 
does not require either party to make a concession, the exclusion 
from coverage of the Act those employees with less than six months 
of employment with their employer, and the question surrounding 
the FOP's statutory authority to demand bargaining or interest 
arbitration after the Police Department ceased to exist on July 1, 
2015.

The FOP's experience with the Town of Madison in bargaining 
for a successor agreement was a protracted and contentious one, 
with the impasse at the start of 2015 centered on wages and health 
insurance.  Lower health insurance costs and the elimination of 
the Police Chief's salary and benefits were the primary sources of 
the savings generated by the proposed move to the Sheriff's 
Department.  In the months between the newspaper article in March 
and the Town Meeting in June, the Mr. Parlon had a number of 
conversations with the Town's attorney about the Town's plan for 


[end of page 16]


the Police Department employees.  There was little testimony about 
the details of these conversations, but given the circumstances 
and the fact that the Union had essentially no bargaining 
leverage, it is unlikely that the Town would have expressed any 
interest in providing the employees any more money than they had 
to.  Even though a formal written demand to bargain impact could 
have been made at any time once the plan was announced, the duty 
to bargain does not require either party "to agree to a proposal 
or be required to make a concession." 26 M.R.S. §965(1)(C).  In 
light of all that had been going on, pursuing bargaining with the 
Town would have pitted the desires of the Police Department 
directly against the welfare of the taxpayers in a very public 
way.  The FOP's desire not to do this was not irrational, 
particularly since there is no evidence that any member of the 
bargaining unit was advocating this step.  Instead, here the FOP 
attempted to address the members' concerns with the Sheriff, with 
whom Mr. Parlon had a better working relationship, a decision that 
was not irrational in the circumstances.  

	The Complainant alleges that the FOP breached the duty of 
fair representation by unnecessarily limiting the scope of impact 
bargaining to the additional cost of health insurance benefits. 
The Complainant asserts that other matters could have been 
included, but were not.  With respect to the issues of rank, 
seniority and probationary status of the affected employees once 
they became part of the Sheriff's Department, Mr. Parlon already 
knew the Sheriff's position on this and, in any event, the Town 
had no authority to bargain over another employer's working 
conditions.  With respect to reduction in benefits based on 
seniority, such as vacation accrual rates, the decision not to 
raise that in addition to the compensation sought for added health 


[end of page 17]


insurance costs is not outside the wide range of reasonableness as 
to be irrational.

     The Complainant further argues that after failing to achieve 
any gains from the July 13, 2015, impact bargaining session, the 
FOP should have sought mediation or interest arbitration or filed 
a prohibited practice complaint against the Town for failure to 
bargain in good faith.  As noted above, the statute does not 
require either party to agree to a proposal in bargaining, so a 
prohibited practice complaint based on the Town's refusal agree to 
compensation would be groundless.  With respect to the FOP filing 
for mediation or interest arbitration, there was an open question 
of whether the FOP had the statutory authority of a bargaining 
agent once the Madison Police Department ceased to exist.  The 
Town attorney's comment to Mr. Parlon after the impact bargaining 
session that they had "no obligation" could mean that the Town 
would refuse to participate and would litigate the issue, if 
necessary.  The reasonableness of a union's conduct must include 
consideration of the costs and benefits of any course of action 
and the likelihood of success.  In any case, there was no evidence 
that Mr. Trask or anyone else in the bargaining unit suggested 
that the FOP continue the battle.  Consequently, the FOP's conduct 
was not even unreasonable, let alone irrational.  

     The Complainant has the burden of proving by a preponderance 
of the evidence that the FOP breached its duty of fair 
representation.  26 M.R.S. §968(5)(C).  We conclude that the 
Complainant has not met his burden of proof, and we must therefore 
dismiss the Complaint.


[end of page 18]


                               ORDER

     On the basis of the foregoing discussion, and by virtue of 
and pursuant to the powers granted to the Maine Labor Relations 
Board by 26 M.R.S. §968(5), it is ORDERED that the Complaint in 
Case No. 16-07 be, and hereby is, DISMISSED.


Dated at Augusta, Maine, this 12th day of May, 2017

				  
 

 

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