STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 83-16
ISSUED: OCTOBER 5, 1983
______________________
)
STEPHEN G. WOODWARD, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
TOWN OF YARMOUTH, )
)
Respondent. )
______________________)
This is a prohibited practices case, filed pursuant to Title 26 M.R.S.A.
Section 968(5)(B) on December 9, 1982, by Stephen G. Woodward ("Complainant").
The Complainant has amended his complaint twice and both amendments have been
allowed. The Complainant's complaint alleges that the Town of Yarmouth
("Employer"), acting through its Chief of Police, violated Title 26 M.R.S.A.
Sections 964(1)(A), (D), and (E) as well as Section 631, by: unilaterally
changing the policy for assigning work shifts for its Public Safety dis-
patchers, coercing the Complainant to stop circulating a petition regarding
the shift assignment policy among his co-workers, unilaterally eliminating the
position of Senior Dispatcher, harassing the Complainant for resisting the
elimination of the position of Senior Dispatcher, harassing the Complainant
for filing a grievance and a complaint with the Maine Labor Relations Board,
and failing and refusing to allow the Complainant to review his entire
personnel file. The Employer has, on December 29, 1982, January 24, 1983, and
February 2, 1983, filed answers to the Complainant's original and two amended
complaints. In its answers, the Employer has denied that any of its actions
are in violation of the Municipal Public Employees Labor Relations Act ("Act"),
26 M.R.S.A. Section 961, et seq. The Employer, through its answers, has
requested the Board to defer consideration of the Complainant's complaint,
pending the outcome of a contract grievance arbitration proceeding, or, in the
alternative, to dismiss said complaint, and to dismiss Count VI of the com-
plaint, relating to the Complainant's access to his personnel file, since it
is beyond the jurisdiction of this Board to entertain said count and to grant
the relief sought therein. At the outset of the hearing before the Board, the
Complainant's attorney moved, without objection from the Employer, to withdraw
Count VI of the complaint and the Board granted said request.
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A pre-hearing conference on the case was held on January 4, 1983,
Alternate Chairman Donald W. Webber presiding. On January 6, 1983, Alternate
Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
Hearings on the case were held on February 2, 1983 and on March 2, 1983,
Chairman Edward H. Keith presiding, with Employer Representative Don R.
Ziegenbein[fn]1 and Employee Representative Harold S. Noddin. The Complainant
was represented by Peggy L. McGehee, Esq., who was assisted at the hearing by
Richard G. Moon, Esq. The Respondent was represented by F. Paul Frinsko, Esq.
At the hearing, the Yarmouth Police Association ("Union") moved the Board to
be allowed to intervene, as amicus curiae, in this proceeding. Neither the
Complainant nor the Respondent objected to said intervention and the same was
allowed by the Board. The Intervenor was represented by James G. Palmer, Esq.
The parties and the Intervenor were given full opportunity to examine and
cross-examine witnesses, introduce evidence, and make argument. Both parties
and the Intervenor have filed post-hearing briefs, which have been considered
by the Maine Labor Relations Board ("Board").
JURISDICTION
The Complainant, Stephen G. Woodward, is a public employee, as defined in
26 M.R.S.A. Section 962(6). The Respondent, Town of Yarmouth, is a public
employer, within the definition of 26 M.R.S.A. Section 962(7). The Intervenor,
Yarmouth Police Association, is the exclusive bargaining agent, within the
meaning of 26 M.R.S.A. Section 962(2), of a bargaining unit composed of all
the full-time regular civilian dispatchers employed by the Town of Yarmouth,
Public Safety Department, Division of Communications, who are public employees,
and excluding all other employees. The Complainant is a member of this bar-
gaining unit. The jurisdiction of the Maine Labor Relations Board to hear
this case and to render a decision and order herein lies in 26 M.R.S.A.
Section 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
____________
1. Mr. Ziegenbein, who participated in the hearings and in preliminary
deliberations herein, was replaced by Mr. Turner, as Employer Representa-
tive on the Board. Mr. Turner has reviewed the entire record herein,
including the memoranda of the Parties, has participated in the delibera-
tions hereon, and joins in this opinion as the Employer Representative on
the Board.
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1. The Complainant, Stephen G. Woodward, is employed as a full-time
regular civilian dispatcher by the Town of Yarmouth, Public Safety Department,
Division of Communications. Mr. Woodward is a public employee, within the
meaning of Section 962(6) of the Act, and is a member of the Yarmouth Police
Association.
2. The Yarmouth Police Association is the exclusive bargaining agent,
within the definition of Section 962(2) of the Act, for the purpose of collec-
tive bargaining, relative to wages, hours and working conditions, for all
full-time regular civilian dispatchers employed by the Town of Yarmouth,
Public Safety Department, Division of Communications, who are public employees,
and excluding all other employees.
3. The Respondent, Town of Yarmouth, is the public employer, as defined
in Section 962(7) of the Act, of the employees included in the bargaining unit
mentioned in the preceding paragraph.
4. On or about April 14, 1981, the Town of Yarmouth and the Yarmouth
Police Association entered into a collective bargaining agreement for the
bargaining unit noted in paragraph 2 above. The effective term of said agree-
ment is from July 1, 1981 through June 30, 1984. Stephen G. Woodward was one
of the negotiators, on behalf of the Yarmouth Police Association, during the
negotiations which resulted in said agreement.
5. Stephen G. Woodward has been employed as a dispatcher by the Town of
Yarmouth since July 5, 1978 and, by memorandum dated February 13, 1981,
Stephen G. Woodward was authorized to receive pay differential, for assuming
the duties of Senior Dispatcher.
6. At the time that Stephen G. Woodward was promoted to the position of
Senior Dispatcher, noted in the preceding paragraph, and at all other times
relevant hereto, Richard C. Perry has been the Chief of Police of the Town of
Yarmouth.
7. A memorandum from Yarmouth Town Manager Osmond C. Bonsey, dated
June 10, 1980, eliminated the position of Chief Dispatcher, provided that the
Chief of Police was to administer the Communications Division, and that such
administration was to be performed "through the Senior-Dispatcher who will
report directly to, and be responsible to," the Chief of Police.
8. Paragraph VI, of the collective bargaining agreement mentioned in
paragraph 4 hereof, provides that "[t]he Senior Dispatcher shall receive an
additional $15.00
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per week plus regular scale wages" for members of the bargaining unit covered
by said agreement.
9. Stephen G. Woodward has the most seniority of any of the employees in
the bargaining unit, noted in paragraph 2 above.
10. As early as May of 1981, Police Chief Perry stated that he wished to
eliminate the position of Senior Dispatcher.
11. During February of 1981, while Stephen G. Woodward was attending the
Basic Supervision course at the Maine Criminal Justice Academy, a job descrip-
tion for the position of Senior Dispatcher was prepared. Said job description
was reviewed by Stephen G. Woodward, on or about March 12, 1981.
12. The Senior Dispatcher job description, mentioned in the preceding
paragraph, provides, in relevant part, as follows:
"General Responsibilities
1. The Senior Dispatcher shall be assigned by the Chief of Police
from among the full-time dispatchers. . . .
3. The Senior Dispatcher will work whatever shift deemed most
advantageous to the overall operation of the Communications
Center, as decided upon by the Chief of Police."
13. Early in 1982, Police Chief Perry requested that Mr. Woodward volun-
tarily change his work schedule, on a temporary basis, and work the evening
shift. Mr. Woodward agreed to work the evening shift. Prior to that time,
Mr. Woodward had been working the day shift.
14. During April, 1982, Mr. Woodward failed to dispatch a police officer,
in response to a burglar alarm at a restaurant in the Town of Yarmouth.
Several false alarms had, in the past, been received from said establishment.
In response to said alarm, Mr. Woodward telephoned the business and was told,
by an employee thereof whose voice Mr. Woodward recognized, that the alarm had
been set off by mistake. Mr. Woodward made no written record of said alarm
having been received.
15. The Yarmouth Police Department has a policy of noting all false
alarms; sending the owners of establishments, emitting three false alarms
within each calendar year, a warning letter; and sending said owners a bill
for each false alarm received thereafter. The Yarmouth Police Department's
policy is to send a police officer to investigate each alarm received by the
Department.
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16. In taking the actions noted in paragraph 14 above, Mr. Woodward acted
contrary to the established departmental policy, cited in the preceding para-
graph.
17. On May 5, 1982, a meeting was held at the office of the Yarmouth
Police Chief with Mr. Woodward, Police Chief Perry, and Police Lieutenant
Gene Estabrook in attendance. The purpose of the meeting was for the Police
Chief to review Mr. Woodward's job performance.
18. At the meeting noted in the preceding paragraph, focusing on
Mr. Woodward's failure to keep the Communications Center "neat, clean and
orderly," his general attitude and appearance, his frequent use of sick leave,
and his actions noted in paragraph 14 hereof; Police Chief Perry evaluated
Mr. Woodward's job performance as "less than satisfactory" and recommended
that "Senior Dispatcher Stephen Woodward be put on an immediate two-month
probationary period and be set back to the pay scale of dispatcher. He should
then be re-evaluated on or before July 5, 1982."
19. The comments concerning the cleanliness of the Communications Center
and Mr. Woodward's unkempt appearance, in the preceding paragraph, refer to
Mr. Woodward's body odor and his depositing goat hair on the chair of the
dispatch area, as a result of his interest and participation in farming
activities. The Chief was also concerned about Mr. Woodward's trips to
Augusta, during non-working time, and with Mr. Woodward's use of the Town
duplicating maching for farm-related purposes.
20. On May 13, 1982, Police Chief Perry met with Mr. Woodward in the
presence of Lieutenant Estabrook.
21. During the meeting mentioned in the preceding paragraph, the Police
Chief stated that he had discussed the elimination of the Senior Dispatcher
position with both the Town Manager and the Fire Chief. The Police Chief also
stated that he needed a female secretary, his need for a secretary took
priority over having a Senior Dispatcher, and that he had a candidate in mind
to become the secretary.
22. During the meeting mentioned in paragraph 20 above, the Police Chief
stated that his recommendation, concerning the elimination of Mr. Woodward's
pay differential as Senior Dispatcher, "hadn't gone upstairs yet" and, if
Mr. Woodward would accept the equivalent pay cut, "the letter would disappear."
Mr. Woodward then, reluctantly, accepted the cut in pay.
23. On or about June 1, 1982, a secretary was hired by the Chief of
Police. The secretary's position includes the duties and responsibilities of
a dispatcher and, by virtue thereof, is included in the bargaining unit
represented by the Yarmouth Police Association.
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24. On June 9, 1982, Police Chief Perry met with Mr. Woodward and
Lieutenant Estabrook to discuss the Police Department's handling of alarm
panel information. During said meeting, the Chief reiterated the Department's
false alarm policy, outlined in paragraph 15 above, and specifically discussed
a particular residence in the Town where, although several false alarms had
been received, inadequate billing had been made. In response to the Chief's
comments, Mr. Woodward stated that, in the case of a false alarm at the
residence, the homeowner would call the Department and utter a specific phrase.
If such a call was received, no officer would be sent to investigate the alarm
and no bill would be sent. The Chief explained that such action was contrary
to the Department's policy and the same should cease immediately.
25. On June 10, 1982, Police Chief Perry prepared a note to be included
in Mr. Woodward's personnel file. Said note stated, in part: "On June 9, 1982
at 3:30 p.m., Dispatcher Woodward was given a stern, verbal reprimand and a
two-day suspension to be served without pay. Upon his return to duty, he will
no longer be responsible for any duties in the Dispatch Center other than
those directly related to a regular dispatcher."
26. On June 10, 1982, Police Chief Perry prepared a memorandum to
Bookkeeper Mary Hill. Said memorandum provided, in relevant part: "Effective
immediately the pay scale of employee Stephen Woodward should be adjusted from
Senior Dispatcher scale of $245.00 weekly to that of regular dispatcher at
$230.00 weekly. It should also be noted that his pay for the week ending
June 13, 1982 shall reflect two (2) days suspension without pay."
27. Mr. Woodward served a two-day suspension, without pay, on June 9 and
10, 1982.
28. Upon returning to duty after the suspension, mentioned in the pre-
ceding paragraph, Mr. Woodward continued to perform some of the duties of the
Senior Dispatcher job classification. He prepared supply orders, wrote prop-
erty check letters, arranged for the repair of machinery, and prepared work
schedules, after the two-day suspension.
29. Although Article XIII(l) of the applicable collective bargaining
agreement, noted in paragraph 4 hereof, provides that an employee grievance
shall be presented "in an informal manner, within 7 days of its occurrence, to
his immediate supervisor or department head"; on June 15, 1982, Mr. Woodward
prepared and delivered a written grievance to the office of the Chief of
Police. The Chief of Police was absent
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from the Town of Yarmouth at that time and Mr. Woodward presented the written
grievance to assure that the same would be timely, under the foregoing
collective bargaining agreement Article.
30. In his written grievance, mentioned in the preceding paragraph,
Mr. Woodward challenged the following Employer actions, as violative of the
terms of the applicable collective bargaining agreement: (1) the reduction in
pay, from the Senior Dispatcher to the regular dispatcher wage scale; (2) the
two-day suspension, without pay, of June 9 and 10, 1982; (3) the removal of
his duties as Senior Dispatcher; (4) his transfer from the 7:00 a.m. - 3:00 p.m.
shift to the 3:00 p.m. - 11:00 p.m. shift; and (5) harassment by the Chief of
Police against him, in an attempt to secure Woodward's resignation and
allegedly because Woodward was giving the same level of service to the Fire
and Rescue Departments as was being afforded to the Police Department.
31. On June 24, 1982, Chief of Police Perry met with Mr. Woodward and
Bruce Flanders, President of the Yarmouth Police Association, as the first
level grievance hearing.
32. During the course of the meeting mentioned in the preceding para-
graph, Police Chief Perry stated that he had eliminated the position of Senior
Dispatcher and, from that time on, there would be no such thing as a Senior
Dispatcher.
33. Since Mr. Woodward was removed therefrom, on June 9, 1982, the posi-
tion of Senior Dispatcher has been left vacant and the Town has not advertised
to fill the same. Usually, positions covered by the collective bargaining
agreement, mentioned in paragraph 4 above, are not left vacant.
34. The Senior Dispatcher job classification in the Communications
Division, Department of Public Safety, Town of Yarmouth, has been eliminated.
The elimination of said position and/or the impact thereof has not been nego-
tiated by the Town of Yarmouth and the Yarmouth Police Association nor has the
Town of Yarmouth ever notified the Yarmouth Police Association of its inten-
tion to eliminate the position of Senior Dispatcher.
35. A short time after the meeting mentioned in paragraph 31 hereof, the
Yarmouth Police Association investigated the elimination of the Senior
Dispatcher position and the Association was told, by representatives of the
Town of Yarmouth, that said position had not been eliminated.
36. On or about June 26, 1982, Mr. Woodward attempted to circulate a
petition among the other regular full-time dispatchers. The petition stated
that shift
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selection for the dispatchers had, as a matter of past practice, always been
made by the affected employees, on the basis of their seniority with the
Communications Division.
37. None of the other regular full-time dispatchers signed the petition
mentioned in the preceding paragraph.
38. Since the Chief of Police had denied Mr. Woodward's grievance, noted
in paragraphs 29 and 30 above, at the first level of the grievance procedure;
on June 28, 1982, the Yarmouth Police Association filed a written grievance on
behalf of Mr. Woodward. Said written grievance alleged that the Town of
Yarmouth had violated the applicable collective bargaining agreement, through
the following actions: (1) reducing Mr. Woodward's pay, from the Senior
Dispatcher to the regular dispatcher wage scale; (2) suspending Mr. Woodward
for two days without pay, on June 9th and 10th, 1982; (3) failing to discuss
complaints received about Mr. Woodward with him; (4) transferring Mr. Woodward
from the 7:00 a.m. - 3:00 p.m. shift to the 3:00 p.m. - 11:00 p.m. shift; and
(5) the Chief of Police's harassing Mr. Woodward, in an attempt to secure
Woodward's resignation, allegedly because Woodward was giving the same level
of service to the Fire and Rescue Departments as was being afforded to the
Police Department.
39. On June 30, 1982, Chief of Police Perry met with Mr. Woodward.
During the course of their conversation, the Chief stated that, if Woodward
continued to disrupt the operation of the Communications Center by circulating
the petition memtioned in paragraph 36 above, Mr. Woodward would be fired.
The Chief also insulted Mr. Woodward and his brother for their activities in
connection with the latter individual's private security business.
40. On July 1, 1982, the Chiefs of Police, Fire, and Rescue, in response
to the grievance cited in paragraph 38 above, issued their decision thereon,
at the second level of the grievance procedure. The Chiefs' decision was:
(1) to end Mr. Woodward's probation on July 1, 1982, returning him to duty as
a regular full-time dispatcher; (2) to compensate Mr. Woodward for the two-day
suspension; however, the letter of suspension was to remain in his personnel
file; (3) Woodward was to retain the "pay differential of $15.00 per week as
described under the title of 'Senior Dispatcher' "; for the interval from
June 14, 1982 to July 1, 1982; and (4) denying the balance of the grievance.
41. On July 12, 1982, an "administrative hearing" was conducted by the
Yarmouth Town Manager, as the third level grievance hearing, in response to
the grievance outlined in paragraph 38 hereof.
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42. As a resuIt of the meeting noted in the preceding paragraph, the
Yarmouth Town Manager issued his decision on the grievance, on July 15, 1982.
The Town Manager's decision is as follows: (1) the removal of Mr. Woodward
from the position of Senior Dispatcher did not violate any provision of the
collective bargaining agreement; however, Mr. Woodward could receive the
Senior Dispatcher pay differential for the period from June 14, 1982 through
July 1, 1982; (2) Mr. Woodward was to be compensated for the two-day
suspension of June 9th and 10th, 1982; (3) the allegation concerning the non-
disclosure of complaints, concerning Woodward, to Woodward was rejected;
(4) Woodward's transfer to the 3:00 p.m. - 11:00 p.m. shift was a management
decision allowed by the collective bargaining agreement; therefore, that por-
tion of the grievance was denied; and (5) no evidence was presented that the
Chief of Police had harassed Mr. Woodward; therefore, said allegation was
rejected.
43. On July 27, 1982, Mr. Woodward failed to make certain teletype
entries, which had been passed on to him by the day dispatcher, and passed
them on to the next shift.
44. On July 28, 1982, the Chief of Police discussed the facts cited in
the preceding paragraph with Mr. Woodward and placed an Employee Warning
Record in Woodward's personnel file. The latter document stated, in relevant
part:
"Action to be Taken:
Employee to complete assignments as requested by supervisors.
During the regular shift and not to pass to incoming shift,
unless necessary."
45. On July 28, 1982, while Mr. Woodward was on duty in the Communications
Center, the Public Works channel on the communications console was "punched
out"; therefore, no messages could be received on that frequency. As a result,
Mr. Woodward failed to receive a call for assistance from the Public Works
Director.
46. On July 29, 1982, Police Chief Perry met with Mr. Woodward to discuss
the facts noted in the preceding paragraph. Woodward denied having "punched
out" the Public Works channel and stated that he was unaware that the channel
was off, until the Public Works Director appeared at the Communications Center
and informed him thereof.
47. On July 29, 1982, Police Chief Perry prepared an Employee Warning
Record and, after discussing the same with Mr. Woodward, during the conversa-
tion mentioned in the preceding paragraph, placed the same in Woodward's
personnel file. The
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"Action To Be Taken" section of the written warning states: "All dispatchers
are to be alert to all depts. depending on the Comm-Div for their radio com-
munications. If a channel is to be 'punched out' for a short period, then
extra care will be given to the monitor."
48. On December 7, 1982 at 2:30 p.m., the Town Clerk of the Town of
Yarmouth was served, in-hand, with a copy of the original prohibited practices
complaint in this case.
49. On December 7, 1982, Mr. Woodward appeared at the Communications
Center at 2:55 p.m. to begin working at 3:00 p.m. The departmental policy
then in effect was that dispatchers were to report for duty at least 15
minutes prior to the beginning of their duty shifts. Said 15 minute transi-
tion period allowed the on-duty dispatcher to brief his or her replacement on
pending events and said period was uncompensated time.
50. On December 7, 1982 at 3:00 p.m. Police Chief Perry gave Mr. Woodward
an oral warning, as a result of the facts noted in the preceding paragraph,
and a written record of said oral warning was placed in Woodward's personnel
file.
51. Other dispatchers and patrolmen received oral warnings for failing to
appear at least 15 minutes prior to the start of their scheduled work shifts.
52. On February 2, 1983, the first day of hearing was conducted in this
case.
53. On February 3, 1983, Police Chief Perry called Mr. Woodward into his
office. The Chief of Police told Woodward that all written warnings were
still in his personnel file and that any violation of any policy would result
in progressive discipline, based on prior discipline having been imposed
against him.
DECISION
The Complainant alleges that, through various actions of its Chief of
Police, the Employer has violated three sections of the Act, namely Sections
964(1)(A), (D), and (E) of Title 26 M.R.S.A. The legal principles, which will
control our determinations under each section of the Act, will be identical.
For example, each set of facts allegedly constituting a violation of 26
M.R.S.A. Section 964(1)(A) will, consistent with the prior decisions of this
Board, be measured against the Wright Line test, discussed below. We will,
therefore, group the alleged transgressions of the Act on the basis of the
specific section of Act allegedly
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violated, for the purposes of analytical clarity and conciseness of discussion.
The Complainant contends that the Employer has violated Section 964(1)(A)
of the Act by: (1) unilaterally changing the policy for assigning work shifts
for its Public Safety dispatchers; (2) refusing to return Mr. Woodward to the
day shift because he circulated a petition among the other dispatchers; (3)
forcing Mr. Woodward to serve a two-day suspension, as a result of his circu-
lation of said petition; and (4) harassing Mr. Woodward through oral and
written warnings. The Complainant alleges that each of the foregoing actions
was the result of the Employer's anti-union animus directed against
Mr. Woodward. The Employer counters said contention by arguing that: (1) the
actions are not the result of any anti-union animus or (2) the same actions
were fully justified by legitimate reasons and would have been undertaken,
regardless of any anti-union animus. The sum of the allegations before us,
therefore, is that the said actions may be the result of mixed or dual motives,
some legitimate and some prohibited by the Act. In our recent case of Jeannie
Ross, et al v. Portland Superintending School Committee of of the City of
Portland, MLRB No. 83-04, at 19-20 (Aug. 29, 1983), we stated:
"In considering such 'mixed motive' cases, this Board has recently
adopted, as the controlling analysis therein, the Wright Line standard,
promulgated by the National Labor Relations Board, Wright Line and
Bernard R. Lamoureux, 251 NLRB 1083 (1980), which was later upheld by
the Supreme Court of the United States, National Labor Relations Board v.
Transportation Management Corp., U.S. , 103 S.Ct. 2469 (June
15, 1983). Allen C. Holmes, et al. v. Town of Old Orchard Beach, et al.
MLRB No. 82-14, at 11 (Sept. 27, 1982). In Transportation Management
Corp., supra, Mr. Justice White, writing for a unanimous Court, described
the National Labor Relations Board's Wright Line test as follows:
'The Board held that the General Counsel, of course, had the burden of
proving that the employee's conduct protected by Section 7 was a substan-
tial or a motivating factor in the discharge. Even if this was the case
and the employer failed to rebut it, the employer could avoid being held
in violation of Sections 8(a)(1) and 8(a)(3) by proving by a preponderance
of the evidence that the discharge rested on the employee's unprotected
conduct as well and that the employee would have lost his job in any
event. It thus became clear, if it was not clear before, that proof that
the discharge would have occurred in any event and for valid reasons
amounted to an affirmative defense on which the employer carried the
burden of proof by a preponderance of the evidence.'
103 S.Ct., at 2473 (footnotes omitted). It is important to note that
'Section 7,' 29 U.S.C. Section 157, cited by the United States Supreme
Court above, is analogous to Section 963 of the Act and Sections '8(a)
(1),' 29 U.S.C. Section 158(a)(1), and '8(a)(3),' 29 U.S.C. Section
158(a)(3), are analogous to Sections 964(1)(a) and (b) respectively.
These latter two sections of the Act were allegedly violated by the
Employers herein. The United States Supreme Court, 103 S.Ct., at 2475,
went on to uphold the validity of the National Labor Relations Board's
use
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of the Wright Line test in 'dual motive' situations."
The situation in this case, like that before the Board in Town of Old Orchard
Beach, supra, is a "dual motive" predicament; therefore, we will apply the
Wright Line standard to each of the factual allegations presented.
The Complainant's first contention is that, by no longer allowing the
affected employees to select their own shifts on the basis of seniority, the
Employer has unilaterally changed the policy for assigning work shifts for its
Public Safety dispatchers, in violation of Section 964(1)(A) of the Act.
Although the Complainant testified that, as a past practice, dispatchers in
the Public Safety Department had been able to select their own work shifts,
with the most senior employee selecting first; said testimony was refuted both
by the testimony of Chief Perry and by the Senior Dispatcher job description.
Furthermore, the Complainant testified that he had voluntarily accepted the
shift change, in early 1982. Said shift change occurred prior to Mr.
Woodward's engaging in substantial union-related activity. We hold, there-
fore, that the Complainant failed to establish a prima facie violation of
Section 964(1)(A) of the Act in connection with this allegation.
The Complainant's second allegation is that the Employer violated 26
M.R.S.A. Section 964(1)(A) by refusing to return Mr. Woodward to the day shift
"because [the Employer] wished to coerce Complainant into terminating his
efforts to establish through fellow dispatchers and for their benefit the
accepted shop rule on shift allocation." Second Amended Complaint, Count II,
at 4. The evidence is unclear as to when the Complainant first asked to be
returned to the day shift; however, on June 15, 1982, the Complainant
delivered his first-level grievance to the office of the Chief of Police.
One of the Employer actions, on which said grievance was based, was the shift
transfer. It was not until approximately June 26, 1982 that the Complainant
attempted to circulate a petition, concerning the alleged past practice of
having dispatchers select their own shifts on the basis of seniority. The
evidence establishes that the Employer's refusal to return the Complainant to
the day shift was not a result of his circulating the petition. The Complain-
ant has, therefore, failed to establish, by a preponderance of the evidence,
a prima facie violation of Section 964(1,)(A) in the context of this conten-
tion. It is important to note, at this juncture, that the circulation of a
petition among public employees is protected conduct under Section 963 of the
Act, during such times as both the circulator and the person being solicited
are not working. The Chief of Police was correct in telling Mr. Woodward that
the petition should not be circu-
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lated, during the working time of either the circulator or of the person whose
signature was being sought, because of disruption of departmental operations;
however, the Chief might have been more careful in his choice of words for
said warning. The mere circulation of a petition, during non-working time, is
protected activity under Section 963 of the Act and circulation under said
conditions may not be deemed, in and of itself, to be disruptive of the
Employer's operation.
The Complainant's third averment is that, by suspending the Complainant
for two days without pay, the Employer violated 26 M.R.S.A. Section 964(1)(A).
The Complainant, in Count IV of his Second Amended Complaint, has alleged that
said two-day suspension without pay was imposed "in order to coerce
Complainant to stop exercising his rights guaranteed by 26 M.R.S.A. Section
963." Prior to the imposition of the two-day suspension on June 9, 1982, the
Complainant evinced only a minimal involvement in and exercise of his rights
under Section 963 of the Act. He had been one of the negotiators for the
collective bargaining agreement that was executed on April 14, 1981; however,
he testified that he enjoyed a normal working relationship from that time
until April, 1982. Said testimony certainly undercuts the allegation that the
suspension was a response to the Complainant's union activity. The only other
activity by the Complainant, prior to June 9, 1982, was an informal conversa-
tion with Chief Perry, on May 13, 1982, where the Complainant may have stated
an opinion concerning the necessity of having a Senior Dispatcher position in
the Communications Division. This activity fails to rise to the level of the
protection afforded by Section 963 of the Act. It was not until June 15, 1982,
when the Complainant filed his first level grievance, and June 26, 1982, when
Complainant attempted to circulate the petition mentioned above, that his
activities constituted those protected by Section 963 of the Act. The
Complainant, in this instance, has failed to establish a prima facie case of
a violation of 26 M.R.S.A. Section 964(1)(A).
The Complainant has further alleged that, by harassing him through oral
and written warnings, the Employer violated Section 964(1)(A) of the Act. The
four specific Employer actions, challenged in this context, were: the per-
formance evaluation of May 5, 1982; the two-day suspension without pay of
June 9 and 10, 1982; the "shaving" of the responsibilities of the Senior
Dispatcher position; and verbal insults directed against the Complainant, for
his non-job-related activities, by the Chief of Police, Brief for Complainant,
at 15-19. We have noted above that the two-day suspension preceded the
Complainant's exercise of
-13-
his protected rights, under Section 963 of the Act, and, therefore, was not
violative of 26 M.R.S.A. Section 964(1)(A). We will discuss each of the
Complainant's other allegations in detail below.
The May 5, 1982 job performance evaluation, like the two-day suspension,
preceded the Complainant's exercise of his Section 963 rights. Although the
Chief of Police had not evaluated the Complainant's work performance for the
two previous years, his motivation for doing so on May 5th was in response to
a civilian complaint, in connection with the restaurant alarm incident, and
the complaints of other dispatchers concerning the cleanliness of the dispatch
center. Furthermore, said review was prompted by a personality difference
between the Chief of Police and the Complainant and the former's opposition to
the latter's off-duty activities, including the Complainant's interest and
participation in farming activities. Finally, the uncontroverted testimony of
the Chief of Police is that all of the full-time regular dispatchers' job
performances were evaluated at that time. Whatever the rationale for the job
performance evaluation of May 5, 1982, it could not have been the Complainant's
exercise of his protected rights, since he had not undertaken said activity at
that time.
The allegations concerning the "shaving" of the Senior Dispatcher's
duties and responsibilities are also without merit. The unrefuted testimony
of the Chief of Police is that, shortly after assuming the position of Senior
Dispatcher, the Complainant failed or refused to perform some of the duties
mentioned in the job description applicable to said classification. Those
responsibilities were then assigned to other personnel. The only responsibil-
ity which was removed from the Complainant, sometime during the period of time
relevant hereto, was the duty of sending out warning letters and bills, pur-
suant to the police department's false alarm billing system. Although the
Complainant's responsibility in this area was terminated and the duty was
assigned to another employee, the record is unclear as to when said change
transpired. Said lack of clarity was due, in part, to the Complainant's
testimony that, after returning to duty after the two-day suspension, he
resumed all of the duties which he had performed prior thereto. The Complain-
ant also testified that, at some later time, the Police Chief's secretary, who
is also the day shift dispatcher, was performing the notice and billing
functions. As was the case in the discussion concerning both the two-day
suspension and the job evaluation, the timing of the Employer's action is
critical to the establishment of a prima facie case of a violation of Section
964(1)(A) in connection with this allegation. Lacking evidence of the
temporal relationship, between the
-14-
Complainant's exercise of his protected rights and the Employer's removal of
said responsibilities from him, we are unable to hold that the Complainant has
established a prima facie case in connection herewith. While in some circum-
stances removal of duties from an employee could amount to violative conduct,
we note that terminating the Complainant's notice and billing responsibilities,
in and of itself, does not constitute the imposition of discipline by the
Employer herein. The imposition of such discipline or similar Employer
conduct, in an effort to interfere with, restrain or coerce employees in the
exercise of their Section 963 rights, is the evil addressed by Section
964(1)(A) of the Act. Even had a prima facie violation of Section 964(1)(A)
been established in this context, however, our inquiry would not be terminated.
In our recent case of Jeannie Ross, et al v. Portland Superintending School
Committee of the City of Portland, supra, at 22-23, we noted:
"Having held that the Complainants have established, by a pre-
ponderance of the evidence, a prima facie case that the Employers'
anti-union animus was a motivating factor in the decision to transfer
Ms. Ross, we must now consider the Employers' affirmative defense,
under the Wriqht Line standard. The Employers, at pages 20 through 23
of their brief, have argued that Ms. Ross would have been transferred
in any event, regardless of her union activities. If proven by a
preponderance of the evidence, the Employers' allegation constitutes
an affirmative defense which 'permits an employer to avoid being ad-
judicated a violator by showing what his activities would have been
regardless of his forbidden motivation.' NLRB v. Transportation Manage-
ment Corp., [ U.S. , 103 S.Ct. 2469, 2474 (June 15, 1983)]."
The evidence in this case indicates that the Complainant repeatedly failed to fully
discharge his notice and billing responsibilities and that he attempted to
reserve a significant amount of discretion in performing said functions, which
are mandatory in nature under the established departmental policy. Said
nonfeasance and alteration of the basic notice and billing functions provides
ample legitimate justification, under the portion of the Wright Line test
cited above, for the Employer's removal of those functions from the
Complainant. In any event, therefore, we are unable to hold that the
Employer's removal of the notice and billing duties from the Complainant was
violative of 26 M.R.S.A. Section 964(1)(A).
The Complainant's final factual allegation, in connection with his con-
tention that the Employer violated Section 964(1)(A) of the Act by harassing
him, is that the verbal insults, directed against him and members of his
family, by the Chief of Police are contrary to said section of the Act. There
is no doubt that the
-15-
Police Chief uttered the comments in question. Although suggesting that said
statements had been taken out of the context in which they were expressed, the
Chief of Police admitted that he probably made them. The Police Chief also
stated that he had apologized to the Complainant for having made these com-
ments, relating to the Complainant's participation in his brother's private
security business. These insults are indicative of the personality difference
between the Complainant and the Chief of Police. While unfortunate, unpleas-
ant, and unworthy of condonation, the Police Chief's vitriolic remarks did not
rise to the level of constituting a violation of Section 964(1)(A) of the Act
and we so hold.
In our foregoing discussion, we analyzed the Employer's allegedly
harassing actions and statements in detail. In addition thereto, we examined
said conduct in light of the Complainant's theory that they constitute a
pattern of harassment in contravention of 26 M.R.S.A. Section 964(1)(A).
Since the Employer's actions or statements were unrelated to the Complainant's
exercise of Section 963 rights or bore no impact on the Complainant's working
conditions or were, in one instance justified by legitimate reasons; we hold
that none of said conduct, individually or taken as a whole, was violative of
26 M.R.S.A. Section 964(1)(A).
The second section of the Act allegedly violated by Employer herein is
26 M.R.S.A. Section 964(1)(E). The Complainant's specific contentions are
that the Employer violated said Section by: (1) unilaterally changing the
policy for assigning work shifts for its Public Safety dispatchers and (2)
unilaterally eliminating the position of Senior Dispatcher in the Communica-
tions Division. Each of these allegations will be considered, as they were
presented, as separate violations of the Act.
Section 964(1)(E) places on public employers the affirmative duty of
engaging in collective bargaining with the bargaining agent of its employees.
An inherent component of the public employer's duty to bargain collectively is
its obligation to refrain from making changes in its employees' wages, hours,
or working conditions without first notifying the employees' bargaining agent
thereof and, if requested to do so by said agent, to bargain over the same.
In Auburn Firefighters' Association v. City of Auburn, MLRB No. 83-10, at 4
(Mar. 9, 1983), we stated:
"The rule prohibiting unilateral changes by an employer in wages,
hours and working conditions is a basic tenet of labor relations. See,
e.g., Lane v. Board of Directors of MSAD No. 8, 447 A.2d 806, 809-810
(Me. 1982); NLRB v. Katz, 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d
230 (1962). The rationale for the rule is that a unilateral change in a
-16-
mandatory subject of bargaining 'is a circumvention of the duty to
negotiate which frustrates the objectives of [the duty] much as does a
flat refusal' to bargain. NLRB v. Katz, 369 U.S. at 743. Unilateral
changes thus contravene the duty to bargain in violation of Section
964(1)(E) and result in interfering with the exercise of bargaining
rights in violation of Section 964(1)(A). Lane v. Board of Directors
of MSAD No. 8, 447 A.2d at 810." [Footnote omitted].
Clearly, unless the bargaining agent is given advance notice of the public em-
ployer's intention to make changes in its employees' wages, hours, and working
conditions, the employer could readily circumvent the duty to bargain over
said changes, until such time as the changes have impacted on the employees'
wages, hours, and working conditions and the employees report the same to
their bargaining agent. The Supreme Judicial Court has, therefore, adopted
our interpretation of the statutory duty to bargain as including an affirma-
tive notice obligation on the public employer, prior to the effectuation of
changes in the mandatory bargaining areas. The Law Court has stated:
"The Superior Court determined that the Board's finding of a
violation of the duty to notify and bargain with the union was not
clearly erroneous. We agree with the Superior Court that the Board
did not err in concluding that the city had violated section 964(1)
(E) and adopt its accurate analysis of this issue:
'The Board found that the City committed a distinct violation
of the Public Employees Act when it failed to notify the Union of
and bargain with it over the effect of the discharges of Prescott,
Strout and Bragg. At issue is section 964(1)(E) which prohibits an
employer from refusing to bargain collectively pursuant to 965,
which, in turn, creates an obligation to "confer and negotiate in
good faith with respect to wages, hours, [and] working conditions . . ."
The effects of a discharge have been held to be a subject of manda-
tory bargaining. N.L.R.B. v. Allis-Chalmers Corp., 601 F.2d 870,
875 (5th Cir. 1979); N.L.R.B. v. W. R. Grace & Co., Construction
Products Div., 571 F.2d 279, 283 (5th Cir. 1978); N.L.R.B. v. Trans-
marine Navigation Corp., 380 F.2d 933 (9th Cir. 1967). Concomitant
with the characterization of a subject as within the duty to nego-
tiate is a duty of the employer to notify the union to provide it
with an opportunity to bargain over it. Id. The failure to do so
violates 964(1)(E). In the case of a discharged employee, the
subjects of bargaining may include severance pay, vacation pay,
seniority, and pensions. Transmarine, supra. Here, the City pro-
vided no notice to the Union of its decision to discharge the four
employees covered by the guarantees of the Public Employees Act.
Its unilateral action taken before the Union had an opportunity to
negotiate these subjects thus constituted a breach of the Act's
provisions."
City of Bangor v. AFSCME, Council 74, Me., 449 A.2d 1129, 1134-1135 (1982).
The
-17-
two unilateral changes alleged in this case clearly relate to and affect
mandatory subjects of bargaining. The first allegation concerns the hours of
work of the affected employees and the second averment, because the Senior
Dispatcher position encompasses a $15.00 per week additional pay differential,
relates, at a minimum, to the subject of wages. Equally patent is the fact
that the changes in contention transpired, if at all, without the Union having
first been notified thereof and given an opportunity to bargain thereover.
Having discussed the relevant legal considerations herein, we will now examine
the Complainant's specific factual allegations.
The first contention in the complaint is that the Employer violated 26
M.R.S.A. Section 964(1)(E) by unilaterally changing the policy for assigning
work shifts for its Public Safety Dispatchers. The basic premise underlying
this averment is that the dispatchers, as a past practice prior to the alleged
unilateral change, were allowed to select their own work shifts, on the basis
of their seniority with the Communications Division. We have declined to hold,
as a matter of fact, that such a shift selection procedure was ever utilized
by the Yarmouth Public Safety dispatchers. Having failed to establish the
basic premise outlined above, we are unable to hold that the Employer has
unilaterally implemented any deviation therefrom. We must, therefore, con-
clude that the Complainant has failed to carry the burden of proof in connec-
tion with this allegation and we will dismiss the relevant portion of the
complaint herein.
The Complainant's second averment is that, by unilaterally eliminating
the position of Senior Dispatcher in the Communications Division, the Employer
has violated Section 964(1)(E) of the Act. As was noted above, since the
Senior Dispatcher position carries with it a pay differential of an additional
$15.00 per week over the regular dispatcher pay scale; the elimination of said
position affects the mandatory subject of wages. Secondly, we have found, in
paragraph 34 of our findings of fact, that the Senior Dispatcher job classifi-
cation has been eliminated, without prior notice to the Union. A public
employer may, in certain limited circumstances, make unilateral changes in
mandatory subjects of bargaining without first negotiating the same with the
bargaining agent who represents its employees. Maine State Employees Ass'n.
v. State of Maine, MLRB No. 78-23, at 4 (July 15, 1978), aff'd. sub nom, State
of Maine v. Maine Labor Relations Bd., (Me.), 413 A.2d 510 (1980). None of
said limited exceptions to the unilateral change rule are present herein. We
must, therefore, conclude that the Employer has violated
-18-
the provisions of 26 M.R.S.A. Section 964(1)(E) by unilaterally eliminating
the position of Senior Dispatcher in the Communications Division.
Upon reaching the conclusion that a party has engaged in a prohibited
practice, this Board is mandated, by Section 968(5)(C) of the Act, to "cause
to be served upon such party an order requiring such party to cease and desist
from such prohibited practice and to take such affirmative action, including
reinstatement of employees with or without back pay, as will effectuate the
policies of this chapter." In this case, our holding that the Employer has
transgressed the Act, through implementing the above unilateral change, was
based wholly upon circumstantial evidence. While adequate to warrant our
above holding, the nature of said evidence will be considered in fashioning
an appropriate remedy in this matter. We will, in light of the circumstances
of this case, prescribe the appropriate remedy herein in the alternative. If
our interpretation of the circumstantial evidence herein is correct and the
Employer intended and in fact eliminated the position of Senior Dispatcher,
the Employer is ordered to cease and desist from refusing to bargain with the
Union over the elimination of said position. In addition thereto, the
Employer shall reinstate the position of Senior Dispatcher, shall notify the
Union of its intent to eliminate said classification, and, if requested to do
so by the Union, shall negotiate with the Union over the decision to eliminate
said position and/or over the impact, resulting from said elimination, upon
the mandatory subjects of bargaining. The reinstated position of Senior
Dispatcher shall continue as a viable entity until such time as the Employer
has given notice of its intent to eliminate the same and has bargained with
the Union over said elimination or within such reasonable time, after the
foregoing notice has been given to the Union, to allow the bargaining agent to
demand such bargaining. In the alternative, if the Employer's intent was to
not eliminate the Senior Dispatcher classification and said position has not
been eliminated, the Employer may avoid the above result by promptly filling
said position, consistent with the applicable collective bargaining agreement
and with the Senior Dispatcher job description.
We are careful to note, however, that our above order is not intended
nor should it be interpreted as meaning that the Complainant must be returned
to his former status as Senior Dispatcher. Our holding should be read con-
strictively, that is, it is limited to consideration of the elimination of the
Senior Dispatcher position itself, without regard to the identity of the
employee holding
-19-
said position, discharging the responsibilities thereof, and receiving the pay
differential therefor. Under the applicable collective bargaining agreement
and the Senior Dispatcher job description, the Employer has the right, subject
to the collective bargaining agreement grievance procedure, to select and to
replace the employee in the Senior Dispatcher position. Had we concluded that
the Complainant was removed from the Senior Dispatcher position in contraven-
tion of the Act, this result would have been different. We have, however,
declined to reach such a conclusion.
The Complainant's final allegation, contained in Count V of his Second
Amended Complaint, is as follows:
"Since Complainant filed his grievance on or about June 15, 1982
pursuant to the collective bargaining agreement (Ex. A) and since he
filed his Complaint with the Board on December 7, 1982, seeking to
protect his rights and those of his fellow employees, Chief Perry has
persisted in harassing, coercing, and otherwise interfering with Com-
plainant's rights guaranteed by 26 M.R.S.A. 963 and has discriminated
against Complainant in violation of 964(1)(D) including taking the
following actions:
a. Oral threats that Chief Perry would 'get' Complainant
if he did not cease his concerted activities;
b. Filing an Employee Warning on July 28, 1982 which in-
correctly alleged a violation of an unstated policy
regarding work assignments and incorrectly stated the
facts in that Complainant had not been instructed to
do anything by a supervisor; and
c. Filing an Employee Warning on July 29, 1982 which
discriminatorily selected Complainant as the person
to accuse of 'punching out a radio channel,' which
should have been monitored, when Complainant had not
been the party to 'punch out' such channel and no other
dispatchers were similarly warned.
d. Orally reprimanding Complainant on December 7, 1982
for arriving at the communications center less than
fifteen minutes prior to Complainant's shift, whereas,
to Complainant's knowledge, no reprimands whatsoever
have been made to other employees for the same commonly
occurring practice, and thereafter reducing said repri-
mand to a written Employee Warning.
e. Not inviting Complainant to the annual department Christmas
party, whereas all other employees in the police and com-
munications department were invited by written or oral in-
vitation."
-20-
In addition to the five specific allegations of Employer conduct outlined in
the complaint; at the second day of hearing hereon, the Complainant also
alleged that the Employer had violated Section 964(1)(D) by the Chief of
Police calling the Complainant into his office, the day after our first day
of hearing herein, to discuss the Complainant's past reprimands and, should
future discipline occur, it would be progressive, based on said past disci-
pline. We will examine each of these allegations in detail below.
In this Count of his complaint, the Complainant has averred that the
Employer has violated two separate provisions of the Act, to wit; Sections
964(1)(A) and 964(1)(D). We have discussed the former section earlier in this
decision and, once again, we will apply the Wright Line standard in evaluating
the contentions concerning violations thereof. We have described the scope of
protection afforded by the latter section as follows:
"Section 964(1)(D) protects employees involved in any stage of
a Labor Relations Board proceeding from a wide variety of discrimina-
tory actions by the employer. See, eg., NLRB v. Scrivener, 405 U.S.
117, 121-125 (1972)."
Southern Aroostook Teachers Ass'n. v. Southern Aroostook Community School
Commitiee, MLRB Nos. 80-35 and 80-40, at 24 (April 14, 1982). Said section
protects those who file complaints with this Board as well as witnesses who
testify in Board proceedings.
The averred Employer actions designated as paragraphs a, b, and c, in the
above quotation from the second amended complaint, each allegedly occurred
prior to the filing of the original complaint herein; therefore, the same
could not constitute a violation of Section 964(1)(D) of the Act. We will
examine those factual allegations solely in light of 26 M.R.S.A. Section
964(1)(A). The first allegation concerns a statement allegedly made by the
Chief of Police that he was going to "get" the Complainant if the Complainant
did not cease his concerted activities. Evidence produced at the hearing
indicated that Chief Perry did make a comment about "getting" Mr. Woodward,
during the meeting of May 13, 1982. Said meeting was held to review the job
performance evaluation of May 5, 1982 and to discuss alternative solutions to
said evaluation. During the course of said meeting, Mr. Woodward agreed to
accept a cut in pay in return for the Chief's promise not to send the written
job evaluation "upstairs." This meeting occurred before the Complainant
engaged in protected conduct, such as filing his grievance or the prohibited
practices complaint. The Complainant, therefore, failed to prove a
-21-
prima facie violation of Section 964(1)(A) in connection with this allegation.
The Complainant's second contention is that, by filing the Employee
Warning of July 28, 1982, the Employer violated 26 M.R.S.A. Section 964(1)(A).
The Complainant avers that said Employee Warning concerned "violation of an
unstated policy regarding work assignments and incorrectly stated the facts in
that Complainant had not been instructed to do anything by a supervisor." The
Complainant's averment was refuted at the hearing. The Chief of Police testi-
fied that a Sergeant Watkins had ordered Mr. Woodward to enter three arrest
warrants on the teletype and, after Woodward failed to do so and passed the
assignment on to his relief dispatcher, the Sergeant complained to the Chief
of Police. The Chief then prepared the written warning and discussed the same
with the Complainant. The Complainant, on the "Employee Remarks" section of
the warning form, admitted that he had not performed the assigned tasks
because "the TT [teletype] machine was fairly busy that evening." The
Complainant, therefore, did not complete a work assignment given to him by a
supervisor, in this instance. Secondly, completion of the teletype work
assignment was clearly within Mr. Woodward's work responsibilities. Assuming,
arguendo, that Mr. Woodward was the Senior Dispatcher when he failed to
complete said assignment, paragraph 14 of the Senior Dispatcher job descrip-
tion provides:
"The Senior Dispatcher will perform all of the duties mentioned, but
shall be primarily responsible for performing the regular duties of
dispatcher on his assigned shift."
The "Nature of Work" section of the Civilian Dispatcher job description
states:
"This is a skilled non-supervisory position requiring agility
and coordination and an audible voice for dispatching of messages
and communications while operating a multi two-way communication
system, teletype and related equipment, serving all departments for
the receipt and transmission of radio-telephone-teletype messages
over multi-circuits and the monitoring of several alarm circuits."
Whether Mr. Woodward was the Senior Dispatcher or a regular Civilian
Dispatcher, therefore, performance of the teletype entries was clearly part of
his duties. Thirdly, no evidence was produced at the hearing that Sergeant
Watkins, who filed the complaint which resulted in the issuance of the
Employee Warning, ever exhibited any anti-union animus. The only relevant
fact, tending to establish that said written warning might have been a result
of prohibited conduct, was that, prior to the warning, the Complainant had
filed his grievance discussed above. We
-22-
must conclude that the Complainant has failed to establish, by a preponderance
of the evidence, a prima facie violation of Section 964(1)(A) in connection
herewith.
The third averment raised by the complaint is that the Employer violated
26 M.R.S.A. Section 964(1)(A) by filing an Employee Warning on July 29, 1982.
Said warning allegedly "discriminatorily selected Complainant as the person to
accuse of 'punching out a radio channel,' which should have been monitored,
when Complainant had not been the party to 'punch out' such channel and no
other dispatchers were similarly warned." This allegation was refuted by the
evidence produced at the hearing. As was noted above, paragraph 14 of the
Senior Dispatcher job description incorporates, as a duty of the incumbent
employee in said position, the duties and responsibilities of the regular
dispatchers. A relevant portion of the "Nature of Work" section of the
Civilian Dispatcher job description provides as follows:
"The Dispatcher is responsible for dispatching, by routine or
emergency dispatch, the Town's regular and/or emergency vehicles
and personnel including police, fire, rescue, and occasionally
public works and school department employees."
Whether he was the Senior Dispatcher or a regular dispatcher, it was
Mr. Woodward's responsibility, as the dispatcher on duty, to monitor the
public works radio frequency, as well as the public safety channels. The
Chief of Police, in the Employee Warning of July 29, 1982, did not allege that
the Complainant had "punched out" the public works channel but rather that he
was careless in failing to observe and correct said situation. In the
"Employee's Remarks" section of the relevant Employee Warning form, the
Complainant essentially admitted to having committed the infraction.
Mr. Woodward wrote:
"The incidents of the Public Works Channel being punched out of scan
were done prior to my shifts and I was not aware of it not being on
until John Carmen came in and advised that he had been trying to contact
me on the radio. I also did not hear him on the monitor due to other
traffic tying up the other channels. Once Mr. Carmen made me aware
that someone had punched out the channel, I put it back on & posted a
note to remind the other dispatchers too. I was not the one responsible
for this and I do not know who was. I consider this warning nothing more
than more harassment of me by Chief Perry. At the time of this warning,
no other employee had received one for the same matter."
No evidence was presented at the hearing that the public works department or
any other agency served by the communications division had had difficulty
contacting the dispatchers by radio, at any time other than when Mr. Woodward
was on duty.
-23-
Secondly, we are unable to hold that the Employee Warning was the result of
discrimination or, by implication, was arbitrarily given. This is especially
true because the Complainant, while on duty approximately three weeks prior to
this incident, had also failed to notice that the public works channel had
been turned off. The Complainant, therefore, was not reprimanded until the
second instance of negligence in monitoring the status of the communications
channels. We must, therefore, conclude that the Complainant has failed to
establish a prima facie violation of Section 964(1)(A) in connection with this
contention.
The Complainant's three remaining averments all concern a time after the
complaint herein had been served upon the Employer. It is appropriate, there-
fore, to evaluate said contentions under the provisions of Section 964(1)(D)
of the Act. Of said allegations, the one concerning the annual department
Christmas party is, in our view, frivolous, under the facts of this case. The
Complainant's rationale is that, because he had filed the complaint in this
case, he was not invited to the party. The Complainant did not attempt to
introduce any further evidence, in connection with this allegation, nor was
this issue discussed in the Complainant's memorandum of law, beyond merely
restating the allegation at page 24 thereof. While invitations to office
parties, Thanksgiving turkeys, and similar grants from employers may well
constitute elements of working conditions, the Complainant's allegation was
refuted by the evidence in this case. The Chief of Police testified that all
of the employees, including the Complainant, were invited to attend the party,
through a notice posted in the same location where notices are normally posted
for the attention of bargaining unit employees. Secondly, the Chief testified
that invitations were sent by U.S. Mail to all present and former employees,
the Town Manager, members of the District Attorney's office, and other indi-
viduals who work with the police department. The Harbor Master and one
reserve police officer, like the Complainant, failed to receive their invita-
tions. We must, therefore, hold that the Complainant has failed to carry his
burden of proof in connection with this allegation.
The second alleged violation of 26 M.R.S.A. Section 964(1)(D) concerns
the Employee Warning of December 7, 1982. At 2:30 p.m. on that date, the Town
Clerk of the Town of Yarmouth accepted service of the original prohibited
practices complaint in this action. At 2:55 p.m., Mr. Woodward reported for
duty for the 3:00 p.m.
-24-
shift. Although the Communications Division policy then in effect was that
employees were to report for work at least 15 minutes prior to the start of
their scheduled work shift, without compensation therefor; the timing of this
Employee Warning is highly suspect. The action of the Chief of Police, the
day after the first day of hearing in this case, corroborates the Complainant's
allegation that the December 7th warning was given in retaliation for the
filing of the complaint herein. The Chief of Police admitted calling
Mr. Woodward into his office on February 3, 1983. Chief Perry attempted to
explain his reason therefor by stating that his purpose was to "clear the air"
in his relationship with the Complainant. During the course of said meeting,
the Chief, by his own admission, told Mr. Woodward that all prior reprimands
remained in the latter's personnel file and any violation of any departmental
policy would result in further discipline. While this statement might appear
to be an innocuous explanation of the concept of progressive discipline, we
believe that, made in this temporal context, it is at best a thinly veiled
threat of retaliation against Mr. Woodward for his attendance and testimony
during proceedings before this Board. In our view, this type of employer
conduct constitutes one of the most serious violations of the Act. Said
conduct not only interferes with a party's or a witness's statutory right to
bring matters to the attention of this Board but it also interferes with the
quasi-judicial function of this body. In light of the conduct of the Chief
of Police, on February 3, 1983, we must conclude that the Employee Warning of
December 7, 1983 was given in retaliation for Mr. Woodward's filing of the
complaint herein with this Board,in violation of 26 M.R.S.A. Section 964(1)(D).
To correct this violation of the Act, we will order the Employer Town of
Yarmouth, and its representatives and agents, to cease and desist from
discriminating against, threatening, intimidating, or coercing Stephen G.
Woodward because he has filed and prosecuted a prohibited practices complaint
before this Board.
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. Section 968(5), it is ORDERED:
1. That the Town of Yarmouth, and its representatives and agents,
shall:
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A. Cease and desist from refusing to bargain with the Yarmouth
Police Association over the elimination of the position of Senior
Dispatcher in the Communications Division of the Yarmouth Public
Safety Department.
B. Take the following affirmative action:
1. Reinstate the position of Senior Dispatcher in the Communica-
tions Division of the Yarmouth Public Safety Department;
notify the Yarmouth Police Association of its intention to
eliminate said position; and, if requested to do so by the
Yarmouth Police Association, bargain over the decision to
eliminate the position of Senior Dispatcher and over the
impact of said elimination upon the mandatory bargaining
subjects of wages, hours, and working conditions; or
2. Within a reasonable time of the date of this order, appoint
an employee to fill the position of Senior Dispatcher, in
accord with the provisions of the applicable collective
bargaining agreement between the Town of Yarmouth and the
Yarmouth Police Association and in the manner specified in
paragraph 1 of the "General Responsibilities" section of the
Senior Dispatcher job description.
C. Cease and desist from discriminating against, threatening,
intimidating, or coercing Stephen G. Woodward because he has
filed and prosecuted the within prohibited practices complaint
before this Board.
D. Withdraw the Employee Warning which was issued to Stephen G.
Woodward on December 7, 1982 from his personnel file and expunge
any reference thereto or of the results thereof from all of the
records of the Town of Yarmouth, as if said Employee Warning was
never issued.
2. All of the remaining allegations, raised by the Complainant Stephen G.
Woodward in his original complaint and in all subsequent amendments
thereto in MLRB Case No. 83-16, be and hereby are dismissed.
3. All pending motions in this case be and hereby are denied.
Dated at Augusta, Maine, this 5th day of October, 1983.
MAINE LABOR RELATIONS BOARD
The parties are advised of their /s/_______________________________________
right, pursuant to 26 M.R.S.A Edward H. Keith, Chairman
Section 968(5)(F), to seek a
review by the Superior Court
of this decision by filing a /s/_______________________________________
complaint in accordance with Thacher E. Turner, Employer Representative
Rule 80B of the Rules of
Civil Procedure within 15
of the date of this /s/_______________________________________
decision. Harold S. Noddin, Employee Representative
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