Ritchie v. Town of Hampden, No. 83-15, 6 NPER 20-14032 (July 18, 1983); aff'd and enf'd, sub nom., Town of Hampden v. Maine Labor Relations Board, Nos. CV-82-407 and CV-83-353 (Me. Super. Ct., Pen. Cty., Sept. 14, 1984); appeal to Law Court docketed but dismissed by stipulation of the parties, Town of Hampden v. Ritchie, Law Docket No. Pen-84-410 (Jan. 22, 1985); Interim Supplemental Order, No. 83-15 (Dec. 8, 1989), Order of Dismissal (Jan. 22, 1990) STATE OF MAINE MAINE LABOR RELATIONS BOARD CASE NO. 83-15 ISSUED: July 18, 1983 _____________________ ) RUSSELL B. RITCHIE, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF HAMPDEN, ) ) Respondent. ) _____________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on December 6, 1982 by Russell B. Ritchie ("Ritchie"). The complaint alleges that the Town of Hampden ("Town") violated 26 M.R.S.A. Section 964(1)(A), (B) and (E) by suspending and then firing Ritchie, the president and chief negotiator of the Hampden Public Safety Employees Association. The Town filed a response to the complaint on December 29, 1982, denying that it had violated any provision of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. ("Act"). A pre-hearing conference on the case was held on January 4, 1983, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on January 6, 1983 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. The case was heard on March 9 and 11, 1983, Alternate Chairman Webber presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. Ritchie was represented by Charles E. Gilbert, III, Esq., and the Town by Andrew M. Mead, Esq. Both parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. The parties filed post-hearing briefs which have been considered by the Board. JURISDICTION Ritchie was a "public employee" within the meaning of 26 M.R.S.A. Section 968(5)(B) during the time of all events complained of, and as such had standing -1- to file a prohibited practices complaint. The Town is a public employer as defined in 26 M.R.S.A. Section 962(7). 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. Section 968(5)(B). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. Ritchie was hired as a full-time police officer by the Town in 1977, having previously worked as a special (part-time) officer for two years. The Hampden Public Safety Employees Association ("HPSEA") was organized in 1974 and represented a bargaining unit composed of police officers, firefighters, and dispatchers. Ritchie served as president of the HPSEA from 1977-1982. The HPSEA usually had 6 or 7 members at any given time, three of whom were police officers. These 3 officers - Ritchie, Clewley, and Helms - were strong HPSEA adherents who presented a "united front" on collective bargaining matters. 2. Ritchie also served as the chief negotiator for the HPSEA from 1977 to 1982, negotiating 3 collective bargaining agreements with the Town during this period. He also presented grievances on behalf of the HPSEA and was the officer who would speak to the Lieutenant or the Chief of Police when it appeared the Town might be violating a provision of the contract. 3. Other Town employees viewed Ritchie as the leading union activist in Town. The Town's public works employees asked Ritchie to represent them in bargaining with the Town, and in January, 1981 Ritchie presented Town Manager R. Lewis Bone with a petition signed by the public works employees asking that the Town recognize the HPSEA as the employees' bargaining agent. The Town refused to voluntarily recognize the HPSEA as the bargaining agent and the employees eventually abandoned their organizational efforts. The secretary in the Police Department also asked Ritchie to represent her, and in January, 1981 he petitioned the Town to include the secretary in the bargaining unit represented by the HPSEA. The Town refused to agree to such inclusion and Ritchie petitioned this agency for a hearing on the matter. In March 1981 Ritchie successfully argued before a Labor Relations Board hearing examiner that the secretary should be placed in the existing bargaining unit. 4. Late in 1981 the "united front" of police officers in the bargaining unit began to break up. Officer Clewley joined the Brewer Police Department and in February, 1982 Officer Helms became a state trooper. From 1977 through 1981 Ritchie -2- had received fair evaluations, his weakness being his failure to maintain as many traffic stops as the other police officers. He was not disciplined for any matter during this period. 5. On or about February 23, 1982 Ritchie was suspended for 5 days without pay by Chief of Police Roland Huston for an alleged improper and unauthorized use of the Police Department telephone. Ritchie met with Chief Huston and Town Manager Bone to discuss the suspension on February 26, at which time Bone told Ritchie that he was through playing games. Ritchie and Bone met again about the matter on March 4, with Bone stating at this meeting that he was through being a good guy and that he was tired of Ritchie and the "damn Association." At that time grievances regarding the use of police cruisers to pick up officers coming on duty and leave time for Ritchie for National Guard duties were pending. 6. Ritchie grieved his suspension pursuant to the collective bargaining agreement, and in August 1982 a hearing was held before the Hampden Personnel Appeals Board. The Personnel Appeals Board issued its findings in September, 1982, finding that Ritchie had not been given a fair hearing before the Town Manager and that, while Ritchie had been neglectful and had failed to maintain an accurate telephone log, the discipline imposed by the Chief was too severe. The Board found that Ritchie should be compensated for the 5 days he was suspended and that the discipline should be reduced to inclusion of the Board's findings and related papers in Ritchie's personnel file. As of the date of the hearings before this agency, the Town had not complied with the Personnel Appeals Board's findings and had taken the position it was authorized by the collective bargaining agreement to take the findings to arbitration. 7. On or about April 21, 1982 the Chief of Police issued a written reprimand to Ritchie for being below the Department average for the number of traffic stops during the months of January, February, and March, 1982. A quota system regarding traffic stops had been implemented by the Chief in January, 1982. Pursuant to the system, the number of traffic stops made by each officer during the month is recorded. At the end of each month the total number of stops is divided by the number of full-time police officers with the resulting figure being considered to be an average figure. Huston told the officers that any officer who had fewer than 10 stops below the Department average for any month would not be performing satisfactorily. The issue of the propriety of a quota system for traffic stops was one of -3- long-standing dispute between Huston and Ritchie, with Ritchie maintaining that such a system was unfair and illegal. Ritchie had filed a grievance regarding an alleged quota system in 1979, but the Town Manager denied the grievance and Ritchie did not pursue it. 8. On or about June 8, 1982 the Chief notified Ritchie that a hearing would be held on June 23 to review Ritchie's failure to increase his number of traffic stops after receiving the reprimand in April. After the hearing on June 23 the Chief suspended Ritchie for 10 working days from June 22 through July 3 without pay. Ritchie filed a grievance regarding the suspension. 9. On or about June 18, 1982 Ritchie was notified that he was being investigated for filing falsified traffic stop reports. The notice of the investigation stated that it appeared that Ritchie had turned in at least 3 reports which contained falsified information. The Chief questioned Ritchie about the reports at a meeting on June 29, 1982, at which time Ritchie admitted filing two false reports. The reports were falsified in that Ritchie had not actually made the stops and in that some of the information contained in the reports - such as the person's name, the license number, or the type of vehicle - had been made up by Ritchie. Ritchie told the Chief that he filed the false reports as a symbolic protest against the quota system. No member of the public was harmed as a result of the filing of the false reports. 10. On July 26, 1982 the Chief recommended to the Town Manager that Ritchie be discharged for making false traffic stop reports. On July 28 the Town Manager discharged Ritchie as of July 31, 1982. Ritchie grieved his discharge and during hearings regarding his previous 10-day suspension and his discharge, he was not permitted to cross-examine Chief Huston. The record does not show final disposition of either of these grievances. DECISION This case presents the question typically raised in discharge cases; would Ritchie have been fired even if he had not been engaged in protected union activities? While this question is a difficult one because of Ritchie's obvious misconduct in filing the falsified traffic stop reports, we are convinced after carefully reviewing the record that he would not have been discharged had he not been the Town's most outspoken and aggressive union activist. We therefore will find that the -4- Town violated Section 964(1)(A) and (B) of the Act by firing Ritchie,[fn]1 and will order that Ritchie be offered reinstatement and paid back pay, although not as of the date he was discharged. Before proceeding to the merits of the case we must once again consider the proper test to be applied in discharge cases. In Holmes v. Town of Old Orchard Beach, MLRB No. 82-14 at 10-11 (Sept. 27, 1982) we adopted the test formulated by the National Labor Relations Board ("NLRB")in its Wright Line decision: "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that pro- tected conduct was a 'motivating factor' in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." Wright Line, 251 NLRB 1083, 1089 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Although the Wright Line test as stated by the NLRB was rejected by some of the United States Courts of Appeals, the matter appears finally to have been laid to rest by the Supreme Court's affirmance of the NLRB's test in NLRB v. Transportation Management Corp., 51 U.S.L.W. 4761 (U.S. June 15, 1983). In particular, the Court held that the NLRB's allocation of the burden of proof in its Wright Line test was reasonable and proper. 51 U.S.L.W. at 4764. We therefore reaffirm our decision to apply the NLRB's Wright Line test in discharge and discipline cases brought before us. Translated in terms of the Act, the test we apply is that the employee or the union must first make a prima facie showing sufficient to support the inference that protected conduct was a motivating _______________ 1/ Section 964(1)(A) prohibits public employers from "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 963." Section 963 guarantees the right of public employees to participate in the activities of labor organizations for purposes of representation and collective bargaining. Section 964(1)(B) prohibits public employers from "[e]ncouraging or discouraging membership in any employee organization by discrimination in regard to hire or tenure of employment or any term or condition of employment." Discharges of employees because of their union activities violate Section 964(1)(A) and (B). See, e.g., City of Bangor v. AFSCME, Council 74, 449 A.2d 1129, 1134 (Me. 1982); Baker Bus Service v. Keith, 428 A.2d 55 (Me. 1981). -5- factor in the employer's decision. Once this is established, the burden will then shift to the public employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. As the Court noted in Transportation Management, the burden on the employer is in essence an affirmative defense to its action. Id. Turning to the merits of the present case, we have no doubt that Ritchie has made a prima facie showing that his protected activities were a motivating factor in the Town's decision to fire him. It is obvious that Ritchie was well-known as the leading union activist in Town; he served as president of and chief negotiator for the HPSEA for 5 years and he also presented the union's grievances and spoke out to management when it appeared that the Town might be violating the contract. Other town employees outside the bargaining unit came to him for assistance in their organizing efforts and he represented these employees before management and before the Labor Relations Board. All of these activities are of course protected by Section 963 of the Act. In addition, the record shows that management was not pleased with Ritchie's union activities, and suggests that it was looking for a way to get rid of him. By February, 1982 the "united front" of police officers in the bargaining unit had broken up, Officers Clewley and Helms having left the Police Department to take other jobs. It was at this point that the Chief of Police and the Town Manager began disciplining Ritchie, who had always received fair evaluations and who had never before been disciplined. On or about February 23 Ritchie was suspended for 5 days without pay, allegedly for improper and unauthorized use of the Police Department telephone. At a meeting to discuss the suspension on February 26, Town Manager Bone told Ritchie that he was through playing games. At another meeting with Ritchie on March 4, Bone stated that he was through being a good guy and that he was tired of Ritchie and the "damn Association."[fn]2 Ritchie was at the time processing two grievances concerning the use of police cruisers and leave for military duties. Bone's statements are direct evidence of hostility towards Ritchie because of his protected activities. _______________ 2/ The testimony conflicts on whether Bone actually made these statements at the two meetings; Ritchie testified that Bone made the statements while Bone testified that he did not recall making them. Having carefully observed the demeanor of all the witnesses, we believe that Ritchie was a particularly honest and reliable witness. We therefore credit his testimony on the disputed point. -6- Ritchie grieved his suspension and in September, 1982 the Hampden Personnel Appeals Board found that the discipline was too severe and recom- mended that it be reduced and that Ritchie be compensated for the 5 days he was suspended. The Town refused to comply with the recommendation, insisting that it had the right to take the Personnel Appeals Board's decision to arbi- tration. The record indicates that Ritchie's misuse of the telephone was at best a trivial incident.[fn]3 A five-day suspension without pay for such a trivial incident, particularly when administered to an employee who had never before been disciplined, is evidence the Town was attempting to harass Ritchie. On or about April 21, 1982 Ritchie received a written reprimand for being below the Department average for the number of traffic stops during the months of January, February, and March, 1982. On July 13 he was suspended for 10 working days without pay for failing to make more traffic stops. The dispute between Ritchie and the Chief of Police over the propriety of traffic stop quota systems was a long-standing one.[fn]4 In 1979 Ritchie filed a grievance regarding the quota system, but the grievance was denied by the Town Manager and Ritchie did not pursue it. While Ritchie had over the years received lower evaluations for not making enough traffic stops, he had never before been disciplined for this matter. We think it more than mere coincidence that the Town began disciplining Ritchie in the Spring and Summer of 1982 for failing to make enough traffic stops after it had tolerated the situation for approximately 5 years. We view the written reprimand and the 10-day suspen- sion as part of the Town's efforts to make life in the Police Department unpleasant for Ritchie and, ultimately, to force the leading union activist out of the Department. These events during the first half of 1982 constitute a strong prima facie showing that Ritchie's union activities were a motivating factor in the Town's decision to discipline and discharge him. Finally, Ritchie was fired as of July 31, 1982 for filing two to four falsified traffic stop reports. The reports were false in that Ritchie had not actually made _______________ 3/ The record does not show whether Ritchie's misuse of the telephone was deliberate or unintentional; the Personnel Appeals Board made no specific finding on this point. 4/ Ritchie contended in this proceeding that the Town violated Section 964(1)(E) by implementing a more formal traffic stop quota system in January, 1982 without bargaining the impact of such implementation. We do not consider this allegation because it is time-barred by the six- months statute of limitations found in Section 968(5)(B). Other allega- tions raised by Ritchie in his complaint likewise are time-barred. -7- the stops and because some of the information contained in the reports - such as the person's name, the license number, or the type of vehicle - had been made up by Ritchie. Although no member of the public was harmed by the false reports, the filing of the reports was a very serious matter because they could conceivably result in an innocent member of the public receiving a traffic ticket. Looking to the second prong of the Wright Line test, the Town urges that Ritchie would have been fired for filing the false reports regard- less of his involvement in union activities. While the filing of falsified traffic reports certainly would be grounds for discharge of a police officer under some circumstances, we do not believe Ritchie would have been fired for filing the reports if he had not been heavily involved in union activities. We must view the incident resulting in the discharge in the context of past events. As we have noted, the record shows the Town began applying pressure to Ritchie in February, 1982 after the "united front" of police officers in the bargaining unit had broken up. Ritchie first was suspended without pay for what at best was a trivial incident and then was disciplined for conduct which the Town had tolerated for a lengthy period of time. In response, Ritchie engaged in midconduct - he filed the falsified reports. While Ritchie's actions show a serious lack of judgment on his part, we find that they were partially provoked by the Town's harassment of him because he was an outspoken union adherent. In short, in our judgment the record shows that the Town began disciplining Ritchie because of his labor activities and when Ritchie reacted improperly but not unexpec- tedly to the discipline, the Town seized the opportunity to fire him. The discharge thus was the culmination of the Town's efforts to get rid of Ritchie, and we conclude the Town has not carried its burden of showing that the discharge would have taken place even in the absence of Ritchie's protected activities.[fn]5 We accordingly find that the _______________ 5/ The Court in the Transportation Management Corp. case addressed the difficult problem of sorting out the proper and improper motives for discharges as follows: "The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be sepa- rated, because he knowingly created the risk and because this risk was created not by innocent activity but by his own wrongdoing." 51 U.S.L.W. at 4764. -8- Town violated Section 964(1)(A) and (B) of the Act by suspending Ritchie for 10 days without pay in June, 1982 and by discharging him as of July 31, 1982. We will order pursuant to Section 968(5) of the Act that the Town cease and desist from discriminating against Ritchie because of his protected activities and from in any other manner interfering with, restraining or coercing Ritchie in the exercise of his Section 963 rights. Because a properly designed remedial order seeks " 'a restoration of the situation, as nearly as possible, to that which would have obtained' but for the unfair labor practice," Caribou School Dept. v. Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), we will also order the Town to take the affirma- tive action of offering reinstatement to Ritchie and of making him whole for any loss of earnings and other benefits caused by his discharge. Because Ritchie engaged in serious misconduct when he filed the falsified traffic reports, however, we will not order that he be made whole for his 10-day suspension in June, 1982 or that he be reinstated and made whole as of July 31, 1982, the date upon which he was discharged. Instead, we will order that he be reinstated and paid backpay as of August 31, 1982, or thirty days after the date of his discharge. See, eg., Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980). The effect of this order is that Ritchie will have been suspended for forty days without pay. Back pay with interest is to be computed in the manner prescribed in Council 74, AFSCME v. City of Bangor, MLRB No. 80-41 at 11-12 (Sept. 24, 1980), affirmed, 449 A.2d 1129 (Me. 1982). The applicable rates of interest are as follows: 20% from August 31, 1982 through December 31, 1982 and 16% beginning January 1, 1983. The Town must also restore to Ritchie all benefits to which he would have been entitled during the period from August 31, 1982 to the date upon which he is offered reinstatement, including accumulation of vacation and sick time, holiday pay, medical insurance, and seniority. These remedies are necessary to effectuate the policies of the Act. We will provide a procedure by which we may make a determination regarding the back pay and benefits due to Ritchie, in the event that the parties are unable to settle these issues on their own. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue -9- of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(5), it is ORDERED: That the Town of Hampden, and its representatives and agents: 1. Cease and desist from: a) Disciplining, discharging or otherwise discriminating against Russell B. Ritchie because of his interest in or activity on behalf of the HPSEA or any other labor organization. b) In any like or other manner interfering with, restraining, or coercing Russell B. Ritchie in the exercise of rights guaran- teed him by 26 M.R.S.A. Section 963. 2. Take the following affirmative action necessary to effectuate the policies of the Act: a) Offer Russell B. Ritchie immediate and full reinstatement to his former position as a police officer and make him whole for any loss of earnings or benefits incurred as a result of his dis- charge, in the manner set forth in this decision. b) Notify the Executive Director in writing, within 20 days of the date of this order, of the steps that have been taken to comply with the order. Twenty days after the date upon which this decision and order becomes final, if the parties have not agreed on the amount of back pay or benefits due, Ritchie may file with the Executive Director and serve on the Town the following items: 1. A weekly list of gross back pay claimed. 2. A weekly list of actual earnings from any and all employment during the back pay period. 3. A list of expenses incurred in seeking and holding interim employment. 4. A list of benefits claimed. 5. Interest claimed, and 6. Documents and/or affidavits supporting each item. The City will have fifteen days from such filing to respond with docu- ments and/or affidavits bearing on each disputed item. The Board will there- after issue a supplemental order for back pay, interest, and benefits due, or conduct such further proceedings as are necessary to supplement this order. -10- Dated at Augusta, Maine, this 18th day of July, 1983. MAINE LABOR RELATIONS BOARD /s/_______________________________________ Donald W. Webber, Alternate Chairman /s/_______________________________________ Don R. Ziegenbein, Employer Representative /s/_______________________________________ Harold S. Noddin, Employee Representative The parties are advised of their right pursuant to 26 M.R.S.A. Section 968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80B of the Rules of Civil Procedure within 15 days after receipt of this decision. -2- STATE OF MAINE SUPREME JUDICIAL COURT LAW DOCKET NO. Pen-84-410 TOWN OF HAMPDEN and MAINE ) LABOR RELATIONS BOARD, ) ) Appellants ) ) vs. ) STIPULATION FOR DISMISSAL ) OF APPEAL RUSSELL RITCHIE, ) ) Appellee ) COME NOW the undersigned parties in the above Appeal and pursuant to Rule 73 of the Maine Rules of Civil Procedure do by stipulation dismiss the above Appeal. Dated: January 22, 1985 __/s/_________________________ Gary F. Thorne, Esq. Of the Firm of: MITCHELL & STEARNS Attorneys for the Appellant Town of Hampden P.O. Box 552 Old Town, Maine 04468-0552 __/s/_________________________ Charles E. Gilbert, III, Esq. Of the Firm of: VAFIADES, BROUNTAS & KOMINSKY Attorneys for the Appellee Russell Ritchie One Merchants Plaza P.O. Box 919 Bangor, Maine 04401 __/s/___[Marc P. Ayotte]______ Attorney for the Maine Labor Relations Board [-1-] STATE OF MAINE MAINE LABOR RELATIONS BOARD CASE NO. 83-15 ISSUED: December 8, 1989 ____________________________ ) RUSSELL B. RITCHIE, ) ) Complainant, ) ) ) v. ) INTERIM SUPPLEMENTAL ORDER ) ) TOWN OF HAMPDEN, ) ) Respondent. ) ____________________________) This matter comes to the Maine Labor Relations Board ("Board") as an application for further relief in a prohibited practices case originally brought in 1982 by Russell B. Ritchie ("Ritchie), alleging various violations of the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 961 et seq., by the Town of Hampden ("Town"). The Board issued its Decision and order in that matter on July 18, 1983, the contents of which are incorporated herein by reference. Among other things, the Town was ordered to take certain affirmative actions to make Ritchie whole for losses incurred as a result of discharge from his duties as a police officer. On June 20, 1989, Ritchie filed his Application for Further Relief: Computation of Back pay and Benefits Due. On June 21, 1989, the Town filed its Response to Application for Further Relief, in which it moved to dismiss Ritchie's application as "vastly untimely," "barred by the terms of the Order," and "barred by the statute of limitations." Informal discussions between a Board staff attorney and the parties regarding Board procedures for calculating the components of a make-whole remedy failed to resolve the matter; consequently, a prehearing conference was held on November 1, 1989, then-Alternate Chair Peter T. Dawson presiding. Charles E. Gilbert, III, Esq., represented Ritchie, and Andrew M. Mead, Esq., represented the Town. After an initial discussion of the Town's motion to dismiss, agreement was reached at the conference that consideration of the application would be bifurcated. The Board would first receive a stipulated record and written argument on the motion to -1- dismiss. If the motion was denied, an evidentiary hearing would be convened to receive evidence regarding computation of the amount due and owing to Ritchie. The parties agreed to waive oral argument on the motion to dismiss. Then-Alternate Chair Dawson issued a Prehearing Conference Memorandum and Order memorializing these agreements, the contents of which are incorporated herein by reference. A stipulated record and simultaneous briefs were submitted by the parties in a timely fashion. The following documents were added to and made a part of the record by agreement of the parties: 1. Docket entries, pleadings and orders in Docket No. CV-82-407 (Me. Super. Ct., Pen. Cty.) 2. Docket entries, pleadings and orders in Docket No. CV-83-353 (Me. Super. Ct., Pen. Cty.) Chairman Dawson, Employer Representative Thacher Turner and Employee Representative George Lambertson met for deliberation on November 30, 1989. FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. On August 23, 1982, Ritchie filed a prohibited practices complaint with the Board, based on his suspension and eventual discharge from his duties as a police officer for the Town. An amended complaint was filed with the Board on December 6, 1982. 2. On August 30, 1982, Ritchie filed a separate action in Superior Court in connection with his discharge (CV-82-407). Count I sought review of the discharge pursuant to M.R.Civ.P. 80B; Count II alleged a deprivation of Ritchie's civil rights as provided by the Fourteenth Amendment to the U.S. Constitution and by 42 U.S.C. 1983. Ritchie's request for relief included a request for reinstatement and back pay. 3. On January 20, 1983, CV-82-407 was stayed by the Superior Court, pending a decision by the Board in the prohibited practices case. 4. On July 18, 1983, the Board issued its Decision and Order in Case No. 83-15. The Board found that the Town's suspension and eventual discharge of Ritchie violated section 964(1)(A) and (B) of the MPELRL, 26 M.R.S.A. -2- 964(1)(A) and (B). 5. The Town was ordered to offer Ritchie reinstatement to his position, and to make him whole for any loss of earnings and benefits caused by his discharge. Specifically, the Town was ordered to pay Ritchie back pay and benefits during the period from August 31, 1982, to the date upon which he was offered reinstatement, with interest to be computed as prescribed in Council 74, AFSCME v. Bangor, No. 80-41 at 11-12 (Me.L.R.B. Sept. 24, 1980), aff'd, 449 A.2d 1129 (Me. 1982). Case No. 80-41 specifies that interest continues to accrue until the Respondent complies with the order in question. 6. The Board's 1983 order states: Twenty days after the date upon which this decision and order becomes final, if the parties have not agreed on the amount of back pay or benefits due, Ritchie may file with the Executive Director and serve on the Town the following items: 1. A weekly list of gross back pay claimed. 2. A weekly list of actual earnings from any and all employment during the back pay period. 3. A list of expenses incurred in seeking and holding interim employment. 4. A list of benefits claimed. 5. Interest claimed, and 6. Documents and/or affidavits supporting each item. The city will have fifteen days from such filing to respond with the documents and/or affidavits bearing on each disputed item. The Board will thereafter issue a supplemental order for back pay, interest, and benefits due, or conduct such further proceedings as are necessary to supplement this order. 7. Both parties appealed the Board's 1983 order (the Complainant's appeal being based solely on the Board's statute of limitations ruling in connection with one allegation in the complaint). Ritchie's civil action No. CV-82-407 was amended to include his appeal of the Board order; the Town's appeal was filed as a separate action (CV-83-353). The Town also filed a motion to stay the Board's order. 8. On January 18, 1984, the Superior Court consolidated the two appeals of -3- the Board's order and denied the Town's motion for a stay. 9. By letter dated February 23, 1984, the Town informed the Board's executive director that it had mailed a check to Ritchie for back pay. The letter stated that the amount of interest due and any applicable mitigation (the amount earned by Ritchie while working elsewhere) were still being com- puted. No mention was made of payment of benefits or of the existence of a dispute in that regard. 10. On September 14, 1984, the Board's decision and order was affirmed by the Superior Court. The Town appealed that decision to the Law Court; Ritchie did not. 11. On February 5, 1985, the Town's appeal to the Law Court was dismissed by agreement of the parties. 12. On May 18, 1989, the Superior Court granted a motion in limine filed by the Town in Case No. CV-82-407 (the order was entered on June 7, 1989): Upon the Defendants' motion in Limine, it os [sic] ORDERED as follows: The Plaintiff is precluded from offering evidence upon, or requesting damages upon, any remedy which was available to him in the forum of the Maine Labor Relations Board including, but not limited to, back pay, benefits, interest, etc. These remedies fall within the purview of the Maine Labor Relations Board's Order. 13. On June 20, 1989, Ritchie filed his Application for Further Relief: Computation of Back Pay and Benefits Due. Specifically, in his application Ritchie addressed the six items outlined in the Board's 1983 order and requested that the Board assist the parties in fixing the amount still due and owing to Ritchie pursuant to that order. On June 21, 1989, the Town filed its response to the application, alleging that the application was "vastly untimely," "barred by the terms of the Order," and "barred by the statute of limitations." In its brief, the Town framed its untimeliness defense as one of waiver. JURISDICTION The question presented in this phase of the bifurcated application for further relief is whether the application falls within the Board's jurisdic- tion, and if so, whether the Town's defenses to the application warrant dismissal of the application by the Board. We begin our inquiry with the issue of juris- -4- diction. The Town does not dispute, and in fact vigorously asserts, that as a general matter, the Board has jurisdiction to review back pay and benefits due and to resolve damage disputes, citing statutory authority, 26 M.R.S.A. 968(5)(C) (1988); and legal precedent, Holmes v. Old Orchard Beach, No. 82-14, 6 NPER 20-14034 (Me.L.R.B. Aug. 3, 1983, (Supplemental Decision and order), aff'd sub nom. Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Assoc., Nos. CV-82-613 and CV-83-481 (Me. Super. Ct., York Cty., Oct. 27, 1983). The Board in the Ritchie matter, in its 1983 order, specif- ically set out a procedure for returning to the Board in those circumstances. The Town asserts, however, that the Ritchie application is barred by the terms of the 1983 order and that it is barred by the statute of limitations (in essence, relieving the Board of jurisdiction). At the prehearing confer- ence and subsequently in its brief, the Town agreed with Ritchie that the terms of the order do not bar the application. We agree with the parties that the order contains no express deadline for Ritchie's return in the event of a disagreement between the parties. The Town's statute of limitations defense is without merit. The six-year statute to which the Town refers is simply not applicable either to Board mat- ters in general or to this one in particular. That statute of limitations, by its terms, applies only to civil actions in the courts of the State, and in any case applies only to the commencement of such actions, not to the return of a party for further relief subsequent to the issuance of a decision. In addition, as the Town itself points out, Ritchie filed his application within six years from the date of the 1983 order. If any statute of limitations is applicable, it is the six-month limita- tion provided in the MPELRL, 26 M.R.S.A. 968(5)(B) (1988). However, it too applies only to the commencement of an action (that is, to the filing of a prohibited practice complaint with the Board), and not to the return of a party for further relief. Finally, the Town suggests that the Board look to Rule 6.05 of its Rules and Procedures. Since that rule requires dismissal of a stale proceeding (that is, of a proceeding in which the complainant, without good cause, has taken no -5- substantive action for a period of two years), it does operate in the nature of a statute of limitations. Once again, however, Rule 6.05 is on its face not applicable to the instant situation. Rule 6.05 applies to "proceedings" before the Board; since there was no proceeding pending before the Board during the six years after the Board issued its 1983 order, there was nothing for the Board to dismiss. It should also be pointed out that even if Rule 6.05 were otherwise applicable to the return of a party for further relief, that rule did not exist during the two-year period following issuance of the order, or at the time the order became final of February 5, 1985. It became effective September 1, 1985. While neither of the Town's jurisdictional defenses is persuasive, its response to the application gives rise to an additional jurisdictional issue that the Board must address. The response states: "At the maximum, the Petitioner would have been entitled to interest on the unpaid wages which he received on February 20, 1984...." The Board has examined the Town's request for relief that is implicit in this statement, and that was more explicit in discussions during the preheating conference. In essence, the Town requests that the Board establish a new, earlier cutoff date for accrual of interest, since it has been prejudiced by Ritchie's delay in returning to the Board. The Board finds that it is without the authority to grant the relief requested by the Town. Jurisdiction must be and is the Board's primary concern at the outset of any request for relief, whether that request comes as a prohibited practices complaint, a petition for a representation proceeding (a unit hearing or election) or as in this instance, a request for further relief subsequent to the issuance of a Board order. Although Ritchie has not raised the issue of the Board's jurisdiction to change the cutoff date for interest, there is nothing in the MPELRL that prevents the Board from raising and deciding a legal issue sua sponte. Banqor and Local 1599, I.A.F.F., No. 80-A-03, slip op. at 5, 2 NPER 20-11034 (Me.L.R.B. July 18, 1980). We would be particularly derelict in our duties if we failed to raise and rule on a question of juris- diction. The Board has the authority to clarify its order with respect to the method for calculating and/or compounding interest on back pay and benefits. However, the Town's argument that interest should not still be running is essentially an equitable one -- and more importantly, is a matter to be considered in enforce- -6- ment of the Board's order, not in its interpretation or clarification. With respect to the length of time interest continues to run, the Board's order is clear. Equitable defenses to compliance with that order, and therefore to the continued accrual of interest, must be raised in the context of a civil action for enforcement brought by Ritchie in Superior Court: If after the issuance of an order by the board requiring any party to cease and desist or to take any other affirmative action, said party fails to comply with the order of the board then the party in whose favor the order operates or the board may file a civil action in the Superior Court of Kennebec County, or the county in which the prohibited practice has occur- red, to compel compliance with the order of the board. 26 M.R.S.A. 968(5)(D) (1988). Since the Board has no authority to enforce its own orders, other than by bringing a civil action in Superior Court, we will decline in any subsequent proceedings to establish a cutoff date for the accrual of interest other than that already set in 1983. EQUITABLE DEFENSES As we have stated earlier, the Board has jurisdiction to clarify its 1983 order and more specifically, to clarify to what extent Ritchie is entitled to overtime pay, payment of health and/or life insurance premiums, and payment of medical expenses. It also has the authority to clarify how interest is calcu- lated. In this context, we now consider the Town's argument that Ritchie has waived its right to that relief from the Board. We do not disagree with the Town that Ritchie knew or should have known that the Board had continuing jurisdiction over the award of back pay and benefits in his prohibited practices case. Nor do we disagree that in the absence of an express limit in the order for returning, parties seeking additional relief should return within a reasonable period of time. However, in light of the fact that this Board has jurisdiction only to clarify its original order, we disagree with the Town that it has been prejudiced by Ritchie's delay. The amount of back pay and benefits owed for the period from August 31, 1982, to the date Ritchie was offered reinstatement is a fixed amount, regardless of when it is calculated. It is only interest on that amount (or on portions thereof) that is affected by the date of compliance with the order and equitable defenses thereto. -7- We have already found that we have no authority to change the cutoff date for the accrual of interest. We take no position on the equitable arguments of either party in connection with compliance with the original order. We see no reason to decline to clarify that order as requested by Ritchie, when the Town will not be prejudiced thereby, and the Superior Court will need that information to enforce the Board's order. Dismissal of Ritchie's application on equitable grounds would only add more delay to an already-lengthy case, since the court would in all likelihood request the information once a civil enforcement action is filed. Wone V. Portland, 466 A.2d 1256 (Me. 1983). Consequently, we will deny the Town's motion to dismiss the application. 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)(B) (1988), it is hereby ORDERED: 1. That the Town's motion to dismiss Ritchie's application for further relief is denied. 2. That the Town's request for the Board to alter the cutoff date for accrual of interest on back pay and benefits is denied. 3. That the Executive Director schedule a hearing on the application. Dated at Augusta, Maine, this 8th day of December, 1989. MAINE LABOR RELATIONS BOARD /s/________________________ Peter T. Dawson Chair /s/________________________ Thacher E. Turner Employer Representative /s/_______________________ George W. Lambertson Employee Representative -8- STATE OF MAINE MAINE LABOR RELATIONS BOARD CASE NO. 83-15 ISSUED: January 22, 1990 ____________________________ ) RUSSELL B. RITCHIE, ) ) Complainant, ) ) ) v. ) ORDER OF DISMISSAL ) ) TOWN OF HAMPDEN, ) ) Respondent. ) ____________________________) ORDER The parties having achieved a settlement and the Complainant Russell B. Ritchie having requested, by and through his attorney, to withdraw his appli- cation for further relief with prejudice, it is hereby ORDERED: That the Complainant's application for further relief'is dismissed with prejudice. Dated at Augusta, Maine, this 22nd day of January, 1990. MAINE LABOR RELATIONS BOARD /s/_________________________ Peter T. Dawson Chair /s/_________________________ Thacher E. Turner Employer Representative /s/_________________________ George W. Lambertson Employee Representative