Teamsters v. Town of Kennebunk and Lt. Michael LeBlanc, No. 80-30, aff'd., Teamsters v. Town of Kennebunk and MLRB, CV-80-413. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-30 ______________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and ) University Employees in the ) State of Maine, ) ) Complainant, ) DECISION AND ORDER ) v. ) ) TOWN OF KENNEBUNK and ) LT. MICHAEL LeBLANC, ) ) Respondents. ) ______________________________) Teamsters Local Union No. 48, State, County, Municipal and University Employees in the State of Maine (Union) filed this complaint on March 3, 1980. The Respondents Town of Kennebunk and Lieutenant Michael LeBlanc filed a response on March 24, 1980. The complaint alleges that the Town would not have discharged police officer Patrolman Wayne M. Doherty had it not been for his union activities in organizing the employees and filing a prohibited practice complaint or for the Union's threat to file a prohibited practice complaint concerning the alleged harassment of Doherty by Lt. LeBlanc. The complaint also alleges that the discharge constituted a unilateral change in working conditions. The Respondents contend that Doherty was discharged during his probationary period after an extensive investigation of an incident for the reasons that he had made misrepresentations to Lt. LeBlanc during the investigation, that he violated various department rules, and that his general performance had been poor. Alternate Chairman Donald W. Webber held a pre-hearing conference on April 15, 1980, after which he issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing in the matter was held on May 7, 1980, before the Maine Labor Relations Board (Board), Chairman Edward H. Keith presiding, with Employee Representative Wallace J. Legge and Employer Representative Don R. Zieqenbein. 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 Business Representative Walter J. Stilphen, Jr.; Respondents by Labor Consultant Robert D. Curley. The representatives chose to waive the filing of briefs and argued orally at the conclusion of the hearing. JURISDICTION The Board has jurisdiction to hear and decide this case in accordance with the provisions of Section 968(5) of the Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A. 968(5). -1- ______________________________________________________________________________ FINDINGS OF FACT Upon the entire record, and from our observation of the witnesses and their demeanor, we find: 1. The Town, Town Manager Kenneth W. Barrett, Chief of Police Frank E. Stevens, and Lieutenant Michael LeBlanc are public employers, or representatives of public employers, within the meaning of 26 M.R.S.A. 968(5), 962(7), and 964(1);[fn]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. The Union was certified as the bargaining agent for the Patrolmen as the result of a bargaining agent election conducted in October 1979 as the result of an organizing effort which started in the previous summer and which was led by four present Patrolmen for the Town, including Doherty. Doherty solicited for the Union with Patrolman Bemis, Corporal Wood, and some of the Dispatchers. Wood and Bemis were opposed to the Union. At some later point, prior to the election, Chief Stevens called Doherty into his office and, with Lt. LeBlanc present, proceeded to discuss the Union. Both Stevens and LeBlanc clearly conveyed their opinions to Doherty that they would prefer to operate without a union, and that the Chief could not see why problems could not be settled without a union. The Chief suggested to Doherty that he should not be a "follower" of Patrolman Berdeen (another union adherent).[fn]1A Doherty felt that both Stevens and LeBlanc were hostile to the Union, as did others who testified: Reserve Patrolman Lyna, Patrolman Baker and Reserve Patrolman Hanson. It was evident to all that there were four Union supporters: Doherty, Berdeen, Nason, and Baker. Doherty was seen as a weak supporter among these four, in part because of his youth, and that is why Stevens attempted to persuade him to vote against the Union prior to the election. Lt. LeBlanc stated that there was grave concern over the impending vote. 3. On October 31, 1979, the Union prevailed at the election and was certified. Within the next two days, each of the four activists were disciplined by Lt. LeBlanc. No others were. Berdeen, Nason, and Baker each received written warnings: Berdeen for refusing to work a special assignment on his day off; Nason and Baker for improper dress in court. Doherty received an order restricting him from patronizing Jake's Place, one of the two spots in Town frequented by officers on the night shift during their break periods. According to LeBlanc, Doherty had been too regular in the time of night that he chose to visit Jake's. 4. On November 19, 1979, the Union served on Town Manager Barrett a prohibited practice complaint against the Town and LeBlanc because of these four incidents. A few days later, an area newspaper carried an article about the incident, quoting at length from Stevens and LeBlanc. LeBlanc was quoted as saying that if the patrolmen do not follow orders, they will "be gone." Doherty wrote a rebuttal on behalf of the four and sent it to the newspaper which published it. Chief Stevens was upset about this, and had another discussion with Doherty expressing his opinions that the Teamsters were the wrong way to go and that Doherty was being a follower. Both Stevens and LeBlanc were upset by the rebuttal and were angry at the four and at the Union. 5. Prohibited practice complaint No. 80-16 was eventually settled and a motion to withdraw without objection was filed on February 11, 1980, and granted on February 13, 1980. In accordance with Board Rule 4.09, such a withdrawal is without prejudice. _______________ 1 The complaint only named the Town and Lt. LeBlanc. It was clear from the allegations, however, that the actions of Chief Stevens were also complained of since he effectuated the discharge decision and ostensibly was responsible therefor. It was discovered at the hearing that Town Manager Barrett had actually made the discharge decision. We conclude that Stevens and Barrett are properly considered to be respondents since they had notice of the complaint and in any event are subject to the Board's jurisdiction as representatives and agents of the Town. See, 26 M.R.S.A. 964(1). 1A Such conduct by the Chief could constitute a prohibited practice complaint, but it was not so alleged. -2- ______________________________________________________________________________ 6. On January 12, 1980, Doherty met by prearrangement with a local high school student. He had become acquainted with her since she worked as a waitress at a Town eating establishment he frequented while on duty. Doherty had told LeBlanc in advance that he was going to try to develop a contact at the high school concerning possible information about a continuing vandalism problem that existed in the Town. LeBlanc indicated general approval of the idea. LeBlanc knew that this was Doherty's first such activity and there was no evidence that Doherty was aware of any of the rules regarding Juveniles. LeBlanc did not tell him about any such rules at that time. Although LeBlanc did not know any details regarding the contact, he must have known that the contact would be a juvenile (she was 17). 7. Doherty met the student that evening during his off-duty hours in his personal automobile in a parking lot across from her home. After discussing the vandalism situation for a while, Doherty drove around the beach area where a large number of students congregated in the evenings. Doherty wanted her to try to discover who among the students might be responsible for some of the vandalism. At some point one of the on-duty officers stopped them to say that LeBlanc wanted Doherty to return her as soon as possible because the father was looking for her, and then to come to the station. She immediately called home, Doherty then took her home, and then he went to meet LeBlanc. In an affidavit submitted by the father, he stated that his daughter said she had tried earlier to call to tell him where she was and what she was doing but that the line had been busy. 8. While the two had been out in the car, the father had called the station and stated that he understood that his daughter was out with Doherty and that he wanted her returned immediately. He com- plained about her being driven around by a police officer without his consent on the premise of gaining information. LeBlanc told the father that Doherty was trustworthy and conscientious (and he confirmed at the hearing that he felt that way at that time). He said he would contact the father after investigating the matter, in about a week. 9. When Doherty returned he had a discussion with LeBlanc. According to Doherty, LeBlanc assailed him for what he had done, accused him of having no professional motives, and said that he would be docu- menting this and that it would not matter whether Doherty complained to the Union or anywhere else. Doherty said he was shocked at LeBlanc's response to the situation. According to LeBlanc, when Doherty came in he asked him what his thoughts were, and then pro- ceeded to tell him about various police policies about needing parental permission for juvenile informants, about not being seen in public with an informant, and about not having women in cars without supervisor approval. He did not mention any problem with the credibility in court of juveniles and he did not mention the Union. Doherty testified that he said at the time that he did not have any interest in dating the daughter but that they were just friends and that he had met her solely for information purposes. LeBlanc testified that Doherty said something about his honest motives; he also wrote in an investigation memo that Doherty said at the time that his only intention was to gain information and that he had no personal objectives. At the end of the discussion Doherty apologized for being inconsistent with these policies, for causing a problem by not talking to the parent first, and for putting LeBlanc in an embarrassing situation. LeBlanc notified Chief Stevens of the incident immediately, who then notified Town Manager Barrett who told the Chief to investigate the matter immediately. 10. On January 13th, the father came to the police station to meet with Doherty. They discussed the previous day's incident, juvenile prob- lems in the Town and possible solutions for three to four hours. At the end of the conversation, Doherty asked the father if he minded Doherty dating his daughter in the future. The father stated that he did not, stated that he trusted his daughter's judgment and that she was mature for 17 years of age. -3- ______________________________________________________________________________ 11. Doherty had made comments about the daughter separately to Patrolman Bemis and Corporal Wood prior to this incident. The comments indicated that he had a romantic interest in the daughter. These two told their versions of these conversations to LeBlanc a few days after the incident, around January 15. 1980. 12. On January 17, LeBlanc again spoke to Doherty about the incident and asked him if he had anything further to add about the incident. Doherty said he did not; and LeBlanc ended the conversation. That night, Doherty went out on a date with the daughter. He did not date her thereafter. 13. On January 18th LeBlanc called the father as he had said he would. The father advised LeBlanc that he did not intend to file a written complaint about the incident or press the matter and also told him that he did not object to Doherty seeinq his daughter. 14. On January 20th, LeBlanc again spoke to Doherty about the incident. This time, he mentioned that Wood and Bemis had told him about com- ments Doherty had made to them about the daughter; he did not say exactly what the comments were. Doherty did not deny that he had made comments about her, but did ask LeBlanc that they not be re- peated to the father. LeBlanc did not so repeat them. Doherty stated again that they were just friends and that he would not be seeing her again. He apologized again for the incident. At the hearing, there were written statements from Wood and Bemis dated February 14, 1980, which quoted the comments Doherty had made to them in December or early January. At the hearing Doherty testi- fied that he did not use the rather graphic language claimed but did not deny that he had expressed a personal interest in the daughter in other language. Doherty also pointed out that Bemis was well-known as the prude of the department and that he was frequently ribbed because of his predictable reaction to any off- color comments. Doherty characterized Wood as the opposite type of person who had an extremely graphic vocabulary when it came to rough, informal conversation, suggesting that the quote was more Wood's creation than fact. 15. After January 20th, there were no further developments regarding the incident: no new events or disclosures. On January 23rd, LeBlanc verbally reprimanded Doherty for staying too long during his breaks that day at the lunch spot where the daughter worked. Doherty main- tained that he had not overstayed and that the daughter was not on duty that day. 16. The next incident of note took place on February 2 and 3, 1980, when Doherty called in sick. Doherty had moved his residence shortly before and had properly notified the dispatchers of his new address and telephone number. LeBlanc, however, was unaware of the change and when Doherty did not answer the phone at his old address for two days in a row, LeBlanc made a comment which is disputed. Two reserve officers who were present testified in detail that LeBlanc got upset and said that he was going "to get" him yet, referring to Doherty with a vulgar word. LeBlanc did not deny the substance of the com- ment, but explained that if he did say anything similar he only meant that he was doing to get in touch with him. When Doherty heard about this comment he became very concerned and spoke to Union Steward Baker about the situation. They decided that they should raise a complaint about what they felt had been harrassment of Doherty by LeBlanc. They spoke to Business Representative Stilphen about this, who raised the issue at the first contract negotiation meeting with the Town. 17. The first negotiation session for the initial collective bargaining agreement took place on the evening of February 12th. During the session Stilphen told the Town that if they did not stop harrassing Doherty that the Union would file another prohibited practice complaint (p.p.c.). After Town Manager Barrett learned of this p.p.c. threat, (it was unclear whether he was physically present or not), he directed Stevens to put the investigation together immediately and submit it to him. He indicated that he would decide what to do. This was done and on February 14th Wood, Bemis, and LeBlanc wrote out statements and LeBlanc submitted his -4- ______________________________________________________________________________ investigative report covering the period of January 12 to January 20, 1980. 18. LeBlanc made no recommendation regarding the incident and did not participate in the decision. Barrett and Stevens discussed the situation. Stevens testified that they discussed two or three different things but he did not give any details of the conversa- tion. Stevens did not recommend dismissal; he did not recom- mend anything, although he testified that he felt that Doherty had committed a dismissable offense. Barrett decided to discharge Doherty, which Stevens carried out orally on February 15, 1980. Labor Consultant Curley wrote a letter dated February 19, 1980, which Stevens then signed, stating the reasons for the dismissal. 19. It was unknown to the Union prior to the hearing that Town Manager Barrett had made the decision to discharge Barrett. Although he had been listed as a witness by the Town, he did not appear at the hearing. The Union complained in its closing argument that it had not been able to question the person who had made the discharge decision; but it did not request an opportunity to continue the hearing until he could be subpoenaed. 20. The Union pointed to other incidents in support of a claim of dis- parate treatment. On two prior occasions, a police officer who simultaneously collected both a two-thirds salary as Worker's Com- pensation from the Town and a full salary as a police officer was caught. After it happened the second time, the officer was simply demoted, although the Chief recommended dismissal to the Town Manager for, in effect, larceny. Another incident took place when Wood allegedly reported to work intoxicated and went out in a cruiser. He was observed in this condition by four officers and was suspended for 3 days by Chief Stevens. He returned from the sus- pension 2 days prior to the hearing in this case and the Chief re- ported that the final disposition of the matter was still under in- vestigation. 21. Doherty was notified of his dismissal on or about February 15, 1980, by Chief Stevens. This was followed up by a letter dated February 19, 1980, setting forth the cause for dismissal. The letter set the "immediate cause" of dismissal as the willful misrepresentation of his intent to Lt. LeBlanc on January 12, 1980, regarding the meeting with the daughter on that day. The letter also included, as second- ary reasons, the violation of a number of department rules and his "general performance" in his probationary period. 22. The misrepresentation of intent issue is covered by the previous paragraphs. There are additional facts of note regarding the department rules about the use of informants, two of which were cited in the dismissal letter as having been violated by Doherty, along with two bad judgment factors. The letter mentioned (1) failing to ask the parents' permission to use a juvenile as an informant; (2) failing to seek advance permission of an authorized police superior to use an informant; (3) inconsistency of action because juveniles lack credibility as informants in an evidentiary sense; and (4) inconsistency and bad judgment in driving the informant around in his car, a form of advertising. These department "rules" are unwritten and vague. In addition, Doherty had no prior knowledge that the cited rules existed. Doherty also maintained that he never intended to use the daughter as an "informant," that is, one who might give testimony to the commission of a crime, rather, he only wanted to gather information in aide of his own investigation. The Town did not respond to this distinction. 23. Doherty conceded that the best practical course would have been to have sought the parents' permission regarding the incident. None- theless, LeBlanc knew in advance that Doherty was going to be developing an information contact at the high school and, therefore, must have known the person would be a juvenile. Since LeBlanc also knew that this was Doherty's first such type of activity (Doherty was first hired on March 6, 1979), and did not point out any of the unwritten rules regarding informants, it is not logical to charge him with breaking this "rule." With respect to the charge of advertising a contact that should be kept confidential by driving around the beach, it must be noted that -5- ______________________________________________________________________________ the driving around took place at niqht when it was dark. 24. Another factor listed in the letter was general poor performance during Doherty's probation period. At the hearing, Chief Stevens claimed that there was a one-year probation period (Doherty was 3 weeks short of one year at the time of his discharge). While Stevens conceded that the probationary period was not in the rules and regulations, he stated that a Selectmen's meeting minutes "probably" contained the one-year probationary period. The Chief explained that the one-year coincided with Title 25 2805 which provides, in part: "As a condition to the continued employment of any person as a full-time law enforcement officer by a municipality or county, said person shall success- fully complete, within the first year of his employ- ment, a basic training course at the Maine Criminal Justice Academy." Stevens pointed out that the Town wanted to see the officers com- plete the Academy (a 12-week course) but if they flunked out, the Town did not want to continue to employ them. The one-year period claim is highly suspect because of the contrary evidence. Doherty testified that Stevens told him that the probationary period was only six months. Patrolman Mason, who was hired in September 1978, also testified that Stevens told him that it was six months. Mason claimed that all the other officers had been told the same thing. Patrolman Baker, who was hired after Doherty in June 1979, also testified that either Stevens or LeBlanc had told him that it was a six-month period. Baker also claimed that all the other officers believed that it was a six-month period. 25. It is apparently common practice for the Academy to run well-behind in openings in its basic training course. Stevens explained that Doherty's name had been submitted to the Academy for quite some time and yet there was no word back when he would be attending. It is therefore plain that the one-year probationary period would in fact be completed before a Patrolman even began attending the lengthy course. However, by operation of the very law cited, the Town could not retain any officer who failed the Academy course whether he was through the Town's probationary period or not. Therefore, pointing to the statute is not particularly supportive of the Chief's claim that the Town in fact had a one-year probation period. 26. As far as Doherty's general performance is concerned, the Chief deferred during cross-examination to LeBlanc to explain what it was. Doherty testified to two previous instances of discipline. One was the Jake's Place restriction which the Union claims was unlawful retaliation against the four Union organizers. The second instance was a reprimand from a corporal for leaving his area during his break. Doherty testified that he had gotten the approval to leave the area from Senior Patrolman Berdeen who was on duty at the time, and that he pointed that out to the corporal to no avail. The Town did not address this issue. Lt. LeBlanc testified to the Jake's Place restriction and to his questioning the length of Doherty's breaks on January 23, 1980. He testified that on January 12, 1980, he believed that Doherty was a conscientious and trustworthy police officer. 27. Aside from Chief Stevens, who has been in the Kennebunk police department for 32 years, the other police officers are very young. Only one of the 9 or 10 other officers has been with the department for more than 3 years. The Lieutenant has been with the department for 3 years and in his present position for half that time. He is the youngest police Lieutenant that he knows of. -6- ______________________________________________________________________________ DISCUSSION The Union alleges that the Town has violated the Act in three ways: first, it complains that Lt. LeBlanc intimidated and coerced Doherty in the four meetings they had on January 12, 17, 20, and 23, 1980; second, it points to LeBlanc's comment on February 3, 1980 about "getting" Doherty; and, finally,it argues that the discharge of Doherty was triggered by the Union's threat to file a p.p.c. against the Town for harrassing Doherty. The Union asks us to infer that the discharge was an attempt to penalize Doherty or the Union for threatening to file this p.p.c. in violation of Section 964(1)(A), (B) and (D). It points to the timing of the discharge, to the fact that Doherty was not permitted to explain his version of the events to the decision-makers, to the lack of seriousness of the incident in comparison to other recent incidents which resulted in much less discipline; to the unreasonableness of the summary discharge and the injustice of the alleged rule violations which were unwritten and had never been explained to him; to the falsity of the claimed one-year probation period; and to the clear anti- union atmosphere that existed and the pressure that had been placed on Doherty and the three other Union organizers. It also urges a unilateral change in conditions of disciplinary procedure. The Town argues that the misrepresentation by Doherty of his personal motives is an extremely serious offense for a police officer, that Town Manager Barrett and not Lt. LeBlanc made the decision to fire Doherty, that the Chief had recommended discharge for the officer who had collected double pay, that the final discipline for Corporal Wood had not yet been determined, and that the line of least resistance in the face of the Union's threat to file a p.p.c. would have been to not fire Doherty. The primary issue in this case is whether the discharge of Doherty was a violation of Section 964(1)(A) or (B) of the Act. The standard we apply here is well established, that is, whether the discharge was in any part motivated by anti-union animus. See, e.g., Campbell v. Town of Freeport, 93 LRRM 2521, 2 CCH P.B.C. Par. 20,171 (Kennebec Super. Ct. Sept. 2, 1976); Baker Bus Service v. Keith, MLRB No. 79-70 (March 3, 1980), appeal docketed, Kennebec Super. Ct., CV80-702 (March 18, 1980). This interpretation comports with the holdings of ten of the eleven federal circuit courts of appeals which have construed the nearly identical language of the National Labor Relations Act. See, e.g., Oil, Chemical and Atomic Workers International Union v. N.L.R.B., 547 F.2d 575, 590 (D.C. Cir. 1976), cert. denied, 431 U.S. 966, 97 S. Ct. 2923 (1977); N.L.R.B. v. Central Press of California, 527 F.2d 1156, 1158 (9th Cir. 1975); N.L.R.B. v. Midtown Service Co., 425 F.2d 457, 464 (2d Cir. 1973). There are some factors here from which we could infer such an improper motive. We do not do so in this case, however, because the discharge was solely based on proper considerations. The fact that Town Manager Barrett took such action, on the basis of the evidence he apparently had before him, appears to us to have been well within the range of reasonableness and raises no question about his motive.[fn]2 _______________ 2 Our decision, of course, does not turn on the issue of whether or not the discharge was "just" in an objective sense. -7- ______________________________________________________________________________ Although there is substantial evidence of an anti-union atmosphere existing in the police department of Kennebunk, we conclude that such considerations did not infect the discharge of Doherty by the Town Manager. We conclude that Doherty unquestionably had ulterior motives in his approach to the student. More importantly, he misrepresented his motives to Lt. LeBlanc during the investigation of the incident.[fn]3 The fact that a police officer would not only misuse his office to further his personal romantic interests but would also try to cover it up is an extremely serious transgression. This conduct is far more serious than that of the senior officer who collected double pay from the Town and which resulted in a demotion. Rather, Doherty's conduct, as perceived by the Town Manager, called for discharge. We are asked to infer an unlawful motive on the part of the Town Manager in the discharge. However, there is little evidence in this record from which to infer his specific intent. There is no evidence that the Town Manager was communicated to about the progress of the investigation of the citizen complaint after the Chief initially notified him of it. The Chief may have been reluctant to act on the matter because of his past involvement in pressuring Doherty to vote against the union. However, there is insufficient evidence to conclude that the Town Manager ever intended to let this matter be swept under the rug. If we had concluded that the Town Manager changed his thinkinq about the Doherty incident because the Union threatened a p.p.c., we would reach a different conclusion. We have decided to the contrary and therefore dismiss the charge under Sections 964(1)(A) and (B). The charge under Section 964(1)(D) must also be dismissed because of our conclusion that the discharge was solely based on proper disciplinary considerations. The charge under Section 964(1)(E) must be dismissed because the only existing conditions established by the Union pertained only to the handling of formal citizen complaints. This discharge was not, however, effectuated because of a citizen complaint under the existing procedure. Rather, the discharge was triggered by Doherty's misrepresentations to LeBlanc about the incident. LeBlanc did not violate Section 964(1)(A) in the four meetings with Doherty in January. We do not find that any of LeBlanc's conduct in these meetings was related to Doherty's union activity. The only possible connection would be Doherty's claim that LeBlanc made some comments about the Union. LeBlanc denied making such comments and we believe him. We reach the same result regarding LeBlanc's comment on February 3, 1980, regarding Doherty's being out sick. LeBlanc's conduct was based on an honest misunderstanding of the facts and LeBlanc's loss of respect for Doherty as a result of the recent incidents. Even if this could be considered harrassment, LeBlanc's conduct was nonetheless unrelated to Doherty's union activities. It therefore would not constitute coercion in the exercise of guaranteed rights. See, 26 M.R.S.A. 964(1)(A). _______________ 3 Although we do not necessarily credit all of LeBlanc's testimony, we find him more believable than Doherty on points where the two conflict. -8- ______________________________________________________________________________ In contrast, the discipline of the four key Union adherents by LeBlanc immediately after the Union's election is highly suspect. That matter has not been raised again in this p.p.c. In addition, certain of the preelection conduct by Chief Stevens is also questionable. We do not reach this issue, however, since it was not alleged or argued. In conclusion, we dismiss the entire complaint. Dated at Augusta, Maine, this 3rd day of July, 1980. MAINE LABOR RELATIONS BOARD /s/___________________________________ Y, Edward H. Keith Chairman /s/___________________________________ Wallace J. Legge Employee Representative tive /s/___________________________________ Don R. Ziegenbein Employer Representative -9- ______________________________________________________________________________