STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-42
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)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF DIXFIELD, )
)
Respondent. )
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On April 24, 1980, Teamsters Local Union No. 48 (Local 48) filed a pro-
hibited practice complaint against the Town of Dixfield (Town). The Town
filed a response to the complaint on May 14, 1980.
A pre-hearing conference on the case was held May 27, 1980, Alternate
Chairman Donald W. Webber presiding. As a result of the pre-hearing confer-
ence, Alternate Chairman Webber issued on May 29, 1980 a Pre-Hearing Confer-
ence Memorandum and Order, the contents of which are incorporated herein by
reference.
Hearings on the case were held June 11 and 25, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Wallace J. Legge. Local 48 was represented by Walter Stilphen
and the Town by Robert D. Curley. The parties were given full opportunity to
adduce evidence and examine and cross-examine witnesses. At the conclusion
of the June 25th hearing, the parties waived the filing of briefs and made
oral argument.
JURISDICTION
The jurisdiction of the Maine Labor Relations Board to hear this case and
render a decision and order lies in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Local 48 is a public employee organization within the meaning
of 26 M.R.S.A. 968(5)(8). The Town is a public employer as
defined in 26 M.R.S.A. 962(7).
2. On August 30, 1979, the Town hired Richard Marshall to fill the
Sergeant/Patrolman's position in the Police Department. The only
other employee in the Police Department was the Chief, who had
been hired shortly before Marshall was hired. The Town's Police
Commission is responsible for the operation and administration of
the Notice Department. The Commission has 3 members who meet
regularly twice a month to conduct Commission business.
3. Shortly after being hired, Marshall was given a copy of the Police
Department's manual, which sets forth the duties of a police
officer and also contains a procedure for progressive discipline,
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consisting of the following steps: warning, reprimand, suspension,
and demotion or discharge.
4. Virtually from the commencement of his employment, Marshall en-
countered personality conflicts with the Chief and the Police
Commissioners and exhibited attitudinal problems with regard to
his job. In August and September Marshall and the Chief had
personal problems. After a confrontation, these problems were
resolved and the relationship between Marshall and the Chief
improved. On October 20, 1979, the Chief made a written evalu-
ation of Marshall. Marshall was rated "good" or "excellent" in
most of the criteria of job performance contained in the evalu-
ation form. The Chief noted in written comments that Marshall
had a good working knowledge of the police profession, but that
he must learn to control his shortness of temper and impatience
in some situations.
5. In late October, the siren in Marshall's cruiser stopped working
during an emergency while Marshall was taking an injured person
to the hospital. Marshall had been dissatisfied with what he felt
was poor and inadequate Police Department equipment, and, after
leaving the hospital, went to the Police Commission Chairman's
home to complain about the equipment situation as well as the
Chief's handling of the equipment problem. The Chairman, Leo
Houle, was upset that Marshall was not taking his problems
through the chain of command, but said that the Commission was
trying to get the equipment repaired and improved. Subsequently,
Houle told the Chief to ask Marshall to attend Police Commission
meetings so that the Commissioners could get to know Marshall
better and so Marshall could be aware of how the Commission
operated.
6. On November 2nd, Marshall tendered his resignation to the Chief
and the Commission. At the Commissioners' request, Marshall
attended the November 5th Commission meeting, explaining that he
had resigned because of the poor equipment and because the Chief
was not doing his job properly. The Commissioners asked Marshall
to reconsider his resignation, and, after Marshall agreed to give
the job another try and the Chief recommended that the Commis-
sioners allow the resignation to be withdrawn, the Commission
voted not to accept the resignation.
7. Marshall attended the remaining Police Commission meetings during
November and December. In general, these meetings were fairly
stormy sessions, with Marshall claiming that the Commission was
unduly interfering in the affairs of the Department, challenging
the Commission's authority, and being unable to accept criticism.
The relationship between Marshall and the Chief also soured during
this period. The Chief felt that Marshall had a negative attitude,
was resisting the Chief's directives and suggestions, and was
disrespectful to the Chief.
8. In early January, 1980, the Chief made a written evaluation of
Marshall's job performance from November 1, 7979 to January 5,
1980. The Chief rated Marshall as "average" in all areas of job
performance except for "personal appearance," for which Marshall
received an "excellent" rating, and "forcefulness," which was
accorded an "outstanding" rating. In written comments the Chief
noted several areas in which Marshall's performance needed
improvement or correction, and concluded that Marshall's perform-
ance had been satisfactory. The Chief also noted that at times
Marshall had used "a minimal amount of tact," and that Marshall's
ability to interact with others "may leave something to be desired."
9. The Police Commissioners in early January, 1980 also evaluated
Marshall's job performance. For those areas of job performance
observed by the Commissioners, Marshall received "unsatisfactory"
or "below average" ratings, with the exception of an "average"
rating for "personal appearance." In their written comments the
Commissioners stated that they were "extremely concerned" about
Marshall's negative attitude toward the Commissioners, the Chief
and the Department. The evaluation states that Marshall's
relationship with the Commission was one of "clashing personali-
ties" and that Marshall "seems to expect everyone to pamper him,"
concluding that Marshall had been a "negative influence" on the
Department's morale, efficiency and administration. The Commis-
sioners stated that unless there was a "tremendous improvement"
in Marshall's attitude and behavior, "his employment status in
the Town of Dixfield will be in jeopardy come reappointment time
in March."
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10. At the January 7th Police Commission meeting, the Commissioners
discussed the evaluations with Marshall. Marshall was upset about
the negative comments in the evaluations, and tried to justify his
behavior. He told the Commissioners that he did not like their
attitudes, and that they had no business telling him how to do his
job.
11. In December, 1979, Marshall, realizing that his job might be in
jeopardy, decided to seek union representation in hopes of securing
some job protection. Marshall and the Chief both contacted Local 48.
On January 21, 1980, the Town received notification from Local 48
that petitions for unit determination and an election for a Police
Department bargaining unit had been filed with the Board. Town
employees in the Public Works Department also sought representation
by Local 48 during this period.
12. The second Police Commission meeting in January and the meetings in
February were uneventful. Marshall was silent at these meetings,
and the Chief was reserved.
13. Around the first of March, 1980, Ralph Griffin, one of the Town's
Selectmen, stated during a conversation at a restaurant that he
believed that unionization of the Town's police and public works
departments would be too expensive for the Town since increases in
wages and benefits would probably result.
14. Marshall's job performance was again evaluated by the Chief and the
Commission early in March. The Chief rated Marshall "good" in most
areas of job performance, stated that Marshall's performance had
improved since the last evaluations, and recommended that Marshall
be considered for reappointment. The Commissioners rated Marshall
"average" in "performance" and "below average" in the other areas
of the job which the Commissioners had observed. The Commissioners
stated that there had apparently been an improvement in Marshall's
attitude and performance, but that they had serious reservations
about the permanence of the improvements and about Marshall's
reliability, attitude and long-range value to the Department.
The Commissioners consequently concluded that they would probably
recommend to the Selectmen that Marshall not be reappointed to his
position.
15. The Commissioners discussed the evaluations with Marshall and the
Chief at the March 3rd Commission meeting. Marshall became upset
about the Commission's evaluation, attacking the Commissioners
verbally with abusive, hostile language and threatening to punch
one of the Commissioners in the mouth. The Commissioners were able
to halt Marshall's tirade only by calling the meeting out of
executive session. Marshall then left the meeting, saying he would
not be attending any more Commission meetings. The Chairman of the
Commission decided at that point that he definitely would recommend
that Marshall not be reappointed.
16. The Commission then went into executive session with the Chief to
discuss the Commission's evaluation of the Chief. During this
session the Commissioners sharply questioned the Chief about whether
his loyalty lay with the Town or the union, whether the Chief was
fully in command of the Department, and about how the Chief could
possibly be in the same bargaining unit with the Sergeant/Patrolman.
17. On March 17, 1980, the Commissioners received the unit determination
report from the Board hearing examiner who conducted a hearing on
Local 48's petitions for a Police Department bargaining unit. The
hearing examiner ruled that the Chief should not be included in the
unit because he was not a "public employee," and that a unit con-
sisting of the Sergeant/Patrolman position was appropriate for
purposes of collective bargaining.
18. At their March 17th meeting, the Commissioners formally decided to
recommend to the Selectmen that Marshall not be reappointed. The
Selectmen were also meeting that evening, so the Commissioners gave
them the minutes of the Commission meeting that night. The Town
attorney advised the Selectmen that Marshall was probably entitled
to a hearing on his reappointment, so the Selectmen scheduled a
hearing for March 20, 1980.
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19. Marshall, present at the Selectmen's March 17th meetino, asked
that the March 20th hearing be postponed so that he would have
time to hire a lawyer to represent him at the hearing. The
Selectmen denied this request on the ground that the Selectmen
wanted to hold the hearing prior to the departure of one of the
Selectmen for a vacation. The March 20th hearing lasted approxi-
mately 6 hours. The Selectmen deliberated for 15 to 20 minutes
after the hearing, then told Marshall that he had not been re-
appointed and that he would receive two weeks of termination pay.
DECISION
Local 48 charges that the Town violated 26 M.R.S.A. 964(1)(A) and (B)
by failing to reappoint Marshall because of his union activities. The Town
argues that Marshall's involvement with Local 48 had nothing to do with its
decision not to reappoint him. We find that Marshall's union activity
was not among the reasons that the Town decided not to reappoint the officer,
and dismiss Local 48's complaint.
It is well-settled that the discharge of, or failure to reappoint, an
employee violates Section 964(1)(A) and (B) if the discharge is based in any
part on union activities protected by 26 M.R.S.A. s. 963. See, e.g., Campbell
v. Town of Freeport, No. C-75-621 (Me. Super. Ct. Sept. 2, 1976); Oil,
Chemical and Atomic Workers International Union v. NLRB, 547 F.2d 575, 590
(D.C. Cir. 1976), cert. denied, 431 U.S. 966 (1977). Our duty thus is to
examine the record carefully to determine whether the discharge was motivated
in any way by anti-union animus. In making this determination we draw
inferences from the facts as to the true reasons for the discharge. An
inference of unlawful motivation may of course be rebutted by evidence
showing that the discharge was motivated solely by legitimate considerations.
See, e.g., Galaska v. MSAD No. 47, MLRB No. 79-63 (Dec. 18, 1979); Teamsters
Local 48 v. Town of Machias, MLRB No. 79-57 (Nov. 13, 1979).
Having carefully examined the record, we do not see that the Town's
refusal to reappoint Marshall was motivated even in part by anti-union animus.
Long before the Town was aware that Marshall had contacted Local 48, it was
clear that Marshall's job was in jeopardy due to his negative attitude and
his inability to get along with the Police Commissioners. In August and
September, 1979, Marshall and the Chief had personal problems which were
resolved only after a confrontation between the two men. During the Police
Commission meetings in November and December, Marshall challenged the
Commissioners' authority, charged that they were interfering in the affairs
of the Department, and other-wise acted in an antagonistic, unprofessional
manner. The Chief also had problems with Marshall's negative attitude and
unprofessional conduct during this period.
By the time of Marshall's January, 1980 evaluations, the Commissioners
were "extremely concerned" about Marshall's negative attitude and negative
influence on the Department. The Commissioners specifically noted in their
January 7th evaluation that unless there was "tremendous improvement" in
Marshall's attitude and behavior, his employment status "will be in jeopardy
come reappointment time in March." The Commissioner's assessment of
Marshall's conduct was confirmed by Marshall's behavior at the January 7th
Commission meeting, when Marshall told the
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Commissioners he did not like their attitudes and they had no business tell-
ing him how to do his job. By January 7th, then, prior to the time on
January 21st when the Commissioners learned that Marshall was seeking union
representation, the Commissioners had ample reasons to justify a recommenda-
tion that Marshall not be reappointed. The Commission's statement that
Marshall's job could be in jeopardy at reappointment time obviously was not
tainted by anti-union animus, since the Commissioners were not aware at the
time that Marshall had contacted Local 48.
Marshall's behavior at the March 3rd Commission meeting provided further
reasons for the Commissioners not to recommend his reappointment. The Commis-
sioners had stated in their March evaluation that they probably would not
recommend reappointment, provoking an abusive, threatening tirade from
Marshall. While it is understandable that Marshall was upset about his
evaluation, his violent reaction revealed a serious lack of common sense and
judgment, raising substantial questions about his fitness as a police officer.
In sum, Marshall 's negative attitude concerning his job, his personality
clashes with the Commissioners and the Chief, his lack of tact and judgment,
and his inability to take criticism provide more than adequate cause within
the meaning of 26 M.R.S.A. 968(5)(C) for the Town not to reappoint him.
While Marshall's on-the-job performance may have been adequate, his attitude
about the job, his judgment, and his ability to work with the Commissioners
and the Chief were also important aspects of his employment. Marshall's
severe problems with these aspects of his job plainly justified the Town's
refusal to reappoint him.
Local 48 points to several incidents which, it urges, shows that Town
officials were motivated by anti-union animus. The first is the statement by
Selectman Griffin around March 1, 1980 that unionization would be too
expensive for the Town. While the statement may have an inherent tinge of
anti-union sentiment to it, we do not consider it to be so openly hostile as
to constitute real evidence of any anti-union animus. It also appears that
the Selectmen's decision not to reappoint was primarily based on the Police
Commission's recommendation, not on any anti-union feelings by the Selectmen.
Second, Local 48 emphasizes the Commission's March 3rd questioning of the
Chief about the Chief's loyalty to the Town and the union and his intentions
to be part of a bargaining unit with the Sergeant/Patrolman. While the
Commissioners may have been overly zealous in their questioning, they could
properly ask the Chief whether he considered himself to be part of management
or a member of the bargaining unit. We also do not see that any of the
Commission's questions directly suggest any anti-union feelings on the part
of the Commissioners.
Finally, Local 48 notes that the Commissioners decided to recommend that
Marshall not be reappointed on March 17th, the same day the Commission
received the hearing examiner's unit determination report. We do not think
that the report had anything to do with the Commission's decision, however,
as we believe the Commissioners made up their minds not to recommend
reappointment prior to March 17th. For example, the Chairman of the Commis-
sion testified that he decided to recommend that Marshall not be reappointed
on March 3rd, after Marshall's outburst at the Commission meeting. In short,
while any of the facts cited by Local 48 to show
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anti-union animus could in the proper context amount to such a showing, we
believe the record is not sufficient to show that these facts played any role
in the decision not to reappoint Marshall. This is particularly true since
there were many legitimate reasons why the Town would not reappoint Marshall.
We do not mean to imply that the Commissioners and the Selectmen are
without fault in this matter. For example, while the Commissioners expected
Marshall to observe all the rules and regulations set forth in the Police
Department manual, they did not apply the progressive discipline procedure
set forth in the manual to Marshall, and thus are guilty themselves of failing
to comply with the requirements of the manual. It also appears that the
Commissioners were too involved in the day-to-day operations of the Depart-
ment, and that the March 20th reappointment hearing conducted by the Select-
men was unfair to Marshall. Nonetheless, it does not appear that any of
these facts resulted in prejudice to Marshall due to his union activities.
While Marshall properly could be angry and upset about the Commissioners'
failure to observe the manual and their interference in the Department's day-
to-day affairs, his intemperate conduct was not in any way justified by
Commission transgressions.
Since Marshall's union activities were not among the reasons why he was
not reappointed, Local 48's complaint must be dismissed.
ORDER
On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 968(5), it is ORDERED:
That the prohibited practice complaint filed April 24, 1980 by
Teamsters Local 48 is dismissed.
Dated at Augusta, Maine this 6th day of August, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Wallace J. Legge
Employee Representative
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