STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-25
Issued: July 13, 1984
_________________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF KITTERY )
)
and )
)
GEORGE HUSTON, Police Chief of )
the Town of Kittery, )
)
Respondents. )
_________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on April 6, 1984, by Teamsters Local Union No. 48 ("Union").
The Union contends in its complaint that the Town of Kittery, acting by and
through George Huston its Chief of Police, has violated 26 M.R.S.A. Sections
964(1)(A), (C), and (D) by virtue of certain statements allegedly made by
Chief Huston on October 5, 1983 and on March 15, 1984. The Town of Kittery
and Police Chief Huston (hereinafter referred to together as "Employer")
filed an answer to the complaint on April 10, 1984, denying that they had
violated any section 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 May 15, 1984, Alternate
Chairman Donald W. Webber presiding. On May 17, 1984, Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order the contents of
which are incorporated herein by reference.
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A public hearing on this matter was held on May 23, 1984, Chairman
Sidney W. Wernick presiding, with Employer Representative Thacher E. Turner
and Employee Representative Harold S. Noddin. The Union was represented
by one of its business agents, David L. Berg, and the Employer appeared and
was represented by Duncan A. McEachern, Esq. The parties were afforded full
opportunity to examine and cross-examine witnesses, to present evidence, and
to make argument.
JURISDICTION
Teamsters Local Union No. 48 is the bargaining agent, as defined in
26 M.R.S.A. Section 962(2), for two bargaining units of employees of the Kittery
Police Department. One such unit is composed of the Patrolmen and the other
consists of the Dispatchers. The Town of Kittery is the public employer,
within the definition of 26 M.R.S.A. Section 962(7), of the aforementioned
employees. At all times relevant hereto, George Huston has been the Chief of
Police of the Town of Kittery and an agent of said Town." Since the contentions
herein concerning Mr. Huston allegedly arose out of and were performed by him
within the course of his employment with the Town of Kittery, Mr. Huston is
a public employer of the aforementioned employees. 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. Teamsters Local Union No. 48 is the bargaining agent, as defined in
26 M.R.S.A. Section 962(2), for two bargaining units of individuals, one composed
of the Patrolmen and the other consisting of the Dispatchers, in the employ of
the Kittery Police Department.
2. The Town of Kittery is the public employer, within the meaning of
26 M.R.S.A. Section 962(7), of the employees mentioned in the preceding para-
graph.
3. At all times relevant hereto, George Huston has been Chief of Police
of the Town of Kittery and an agent of said Town. Within the context of this
matter, Chief Huston is a public employer of the employees mentioned in para-
graph 1 above.
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4. The Patrolmen of the Ki ttery Police Department attended a mandatory
meeting on October 5, 1983. At the outset of the session, Sergeant Edward
Strong introduced newly-hired Police Chief George Huston to the officers. Chief
Huston briefly outlined his law enforcement career and discussed his expectations
for the Department, including various policies which he intended to enforce.
5. During the course of his first meeting with the Patrolmen, Chief Huston
sought to set the tone of his future relationship with the officers. Among the
comments made by the Chief were: "If you go along with me, I'll be the best Chief
you ever had" and "If you fuck me, I'll fuck you and I've been fucked by the
best."
6. Later during the same meeting, a Patrolman asked the Chief how he felt
about unions and whether he had dealt with unions in the past. The Chief responded
that he had been a union member in his last job, that he had dealt with three
unions in Connecticut, and that he had received an award from the union when he
retired from the Connecticut State Police. The same employee then pressed the
Chief for his opinion about the Teamsters Union. The Chief replied that, based
upon his experience in Connecticut, the only Teamsters he knew were criminals
and they were either dead or in jail; however, he had never encountered Teamster
police unions prior to coming to Maine.
7. Prior to March 15, 1984, the employees in the Dispatchers bargaining
unit at the Kittery Police Department met and formulated bargaining proposals
for possible inclusion in a successor collective bargaining agreement, between
the Union and the Employer for that unit. The proposals were drafted and posted
on the Police Department bulletin board. Under the collective bargaining agree-
ment then in effect, the Dispatchers worked four days followed by two days off,
while the Patrolmen worked four days and then had three days off. The proposals
noted above included one providing that the Dispatchers should work the same
"4 and 3" schedule as the Patrolmen.
8. Although not a member of the Employer's bargaining team, Chief Huston
discussed the Dispatchers "4 and 3" proposal with bargaining unit employee
Pamela Newmann, on March 15, 1984. The Chief asked why the Dispatchers wanted
the "4 and 3" schedule and Ms. Newmann replied that the current schedule wasn't
working out and all the Dispatchers were upset about it. The Chief then
stated that, if the "4 and 3" schedule was implemented, the civilian Dispatchers
would be replaced with regular officers. The reason stated by the Chief for the
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substitution of Patrolmen for Dispatchers was that the "4 and 3" schedule
would, at times, result in more dispatchers on-duty than officers and,
although officers could dispatch, Dispatchers could not be used for patrol
duties. The Chief went on to say that, if the Dispatchers could come up
with a better proposal, he would "push it for them with the Town."
9. On or about March 15, 1984, Chief Huston had a conversation, which
was substantially similar to that reported in the preceding paragraph, with
each of the civilian Dispatchers at the Kittery Police Department.
10. For the past few years, it has been the practice at the Kittery Police
Department for several employees, in addition to the grievant, to sign each
grievance. Although having no stake in the outcome of the grievance, the other
employees sign it to demonstrate their support for the grievant.
11. On March 15, 1984, Chief Huston had a conversation with Patrolman
Gregory Arbo in the Sergeant's office at the Kittery Police Department. During
the course of the discussion, the Chief stated that he saw who was signing
grievances and, if certain Patrolmen stopped signing, they would get further
ahead.
DECISION
The Union's complaint charges that Kittery Police Chief George Huston has,
on three separate occasions, made statements which violated the Act. The three
sections of the Act allegedly violated by the Chief are 26 M.R.S.A. H 964(1)
(A), (C), and (D). Since there is no evidence in the record substantiating
a violation of either of the last two sections cited by the Union, we will
discuss them only briefly. The Board has defined the second section listed
as prohibiting public employers from engaging in certain conduct as follows:
"[Section 964(1)(C)] of the Act is directed at the evil of
too much financial or other support of, encouraging the
formation of, or actually participating in, the affairs of
the union and thereby potentially dominating it."
Northern Aroostook Teachers Association v. M.S.A.D. No. 27 Board of Directors,
MLRB No. 81-52, p. 7 (Nov. 19, 1981); citing: Teamsters Local 48 v. City of
Calais, MLRB No. 80-29, p.5 (May 13, 1980) and Local 1599, IAFF v. City of
Bangor, MLRB No. 80-24, p.3, n.1 (Nov. 6, 1980). No evidence was presented in
this case that the Employer either participated in or otherwise supported
the activities of the Union. The Board holds, therefore, that 26 M.R.S.A
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Section 964(1)(C) was not violated by the Employer. Section 964(1)(D) of
the Act protects the rights of employees and employee organizations to file com-
plaints or petitions with or to give testimony before this Board by protecting
employees involved in any stage of a Labor Relations Board proceeding from a
wide variety of discriminatory actions by the employer. See, e.g.,, NLRB v.
Scrivener, 405 U.S. 117, 121-125 (1971)." Southern Aroostook Teachers Association
v. Southern Aroostook Community School Committee, MLRB Nos. 80-35 and 80-40, p.24
(April 14, 1982). The facts in this case clearly do not involve a violation of
26 M.R.S.A. Section 964(1)(D) and the Board so holds.
The first incident cited in the Union's complaint occurred at a mandatory
meeting of the Kittery Patrolmen, on October 5, 1983. The facts relating to that
event are reported in paragraphs 4, 5, and 6 of the foregoing findings of fact.
The Union alleges that the comments, made by the Chief and noted in paragraphs
5 and 6 above, violated Section 964(1)(A) of the Act. In evaluating alleged vio-
lations of said section, the Board has applied the following standard:
"A finding of interference, restraint, or coercion does not turn
on the employer's motive or on whether the coercion succeeded or
failed, however, but is based on 'whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights under the Act.' NLRB v. Ford,
170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of
Oakland, MLRB No. 78-30 at 3 (Aug. 24, 1978)."
Maine State Employees Association v. Department of Human Services, MLRB No. 81-35,
pp. 4-5 (June 26, 1981); Bridgton Federation of Public Employees v. Leo Hamill,
MLRB No. 81-54, p.9 (Mar. 3, 1982).
The Board concludes that the Chief's statements, mentioned in paragraph 5 of
the findings of fact, did not violate Section 964(l)(A) of the Act. Up to that
point of the meeting, there had been no mention of either the Union or of union
activities and there is no rational basis for relating said comments to activity
protected under the Act. Although the Chief's remarks were in poor taste and
are not deserving of approval, Chief Huston's explanation for having made the
statements is reasonable in light of the attendant circumstances.
At a later point during the October 5, 1983 meeting, the exchange reported
in paragraph 6 of the findings of fact occurred. Chief Huston's answer concerning
his opinion of Teamster Union members would, under many circumstances, violate
Section 964(1)(A) of the Act. The Board is cognizant of the fact that statements
made by department heads, especially within the context of a mandatory meeting of
the employees they supervise, can be very coercive and destructive of the
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rights guaranteed by the Act. Bridgton Federation of Public Employees, supra,
at 7. The Employer argues that the Chief's remark did not violate Section
964(1)(A) because it was his "personal opinion" and was not an expression of
official policy. The Board has often held that coercive statements by the
public employer or its agents violate the Act even when they are couched as
expressions of "personal opinion." Teamsters Local 48 v. Rumford/Mexico
Sewerage District, MLRB No. 84-08, p.7 (Mar. 12, 1984); Bridgton Federation of
Public Employees, supra, at 9. Regardless of the label placed thereon, it
is extremely difficult for economically dependent employees to differentiate
between such "opinions" and official policies and the resulting chilling
effect of the statements upon protected activity is the same. Coercive
"personal opinions" of managerial employees did not violate the Act in cases
where the statements were promptly and publicly repudiated by higher level
representatives of the public employer. Teamsters Local 48 v. Town of Bar
Harbor, MLRB No. 82-35, p.13 (Nov. 2, 1982). No such repudiation occurred in
this case.
The Board holds that, under the unique circumstances of this case, Chief
Huston's statement about members of the Teamsters Union did not violate Section
96(1)(A) of the Act. The Chief's remark was elicited by the persistent questioning
of a bargaining unit employee, unlike the unsolicited pronouncements in the
Bridgton and Rumford/Mexico cases cited above. Secondly, the comment was explicitly
limited to the Chief's experience with the Teamsters Union in the private sector
in Connecticut and did not extend to police department units represented by the
Union. Thirdly, the answer in question was not given in a tense, emotionally
charged atmosphere. Although the Patrolmen were required to attend the session,
the evidence showed that there was a good deal of give and take between the
Chief and the officers on a wide range of subjects. Finally, the
statement was not made in the context of a bargaining unit election campaign,
where union representation is a "live" hotly debated issue. Here, the Union is
the certified and recognized bargaining agent, a collective bargaining agreement
was in effect for the employees involved, and no representation election petition
for said employees was pending before the Board. Although not rising to the level
of violating Section 964(1)(A), Chief Huston's answer does provide a back-
ground against which his subsequent statements in this case may be evaluated.
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The Union's second major contention centers on Chief Huston's conversations
with the Department's civilian Dispatchers, on or about March 15, 1984. The
Chief approached each of the Dispatchers individually and stated that, if the
"4 and 3" work schedule were implemented, the Dispatchers would be replaced
by regular police officers. The Chief went on to give the reasoning behind his
statement and to say that, if the Dispatchers could come up with a,better pro-
posal, he would "push it for them with the Town." The Union alleges that these
remarks violated 26 M.R.S.A. Section 964(1)(A). During this time, the Dispatchers
were represented by the Union as their exclusive bargaining agent and they were
bargaining the "4 and 3" schedule, among other proposals, with the Employer
in collective negotiations. At the hearing, the Chief testified that the state-
ment about the Dispatchers being replaced by Patrolmen was not meant as a
threat but rather as a declaration of what would occur, if the `4 and 3"
schedule were adopted. One of the employees, Senior Dispatcher Newmann, testified
that she felt intimidated and coerced by the Chief's remarks. Applying the
objective standard for evaluating alleged violations of Section 964(1)(A) as
outlined at page 5 above, the Board holds that the Chief's statements to the
Dispatchers, on or about March 15, 1984, violated 26 M.R.S.A. Section 964(1)(A).
Under the controlling standard, neither the Chief's intent nor Ms. Newmann's
subjective reaction is dispositive of thts issue. Our objective evaluation of the
comments at issue, within the context in which they were made, is that their
purpose was to induce the Dispatchers to withdraw their "4 and 3" proposal or
face the loss of their jobs to the Patrolmen. The Dispatchers, under Section
965(1)(C) of the Act, clearly had the right to propose a change in their hours
of work at the bargaining table and the Chief's statements outside of the bar-
gaining process clearly interfered with that right. We will order the Chief to
cease and desist from similar conduct.
The Union's final allegation is that the comment made by Chief Huston to
Patrolman Arbo and noted in paragraph 11 of the above findings of fact violated
26 M.R.S.A. Section 964(1)(A). An employee's right to file a grievance is a
basic right protected by the Act. Teamsters Local 48 v. City of Calais, supra,
at 7. Once again, applying the objective test outlined above, the Board holds
that the statement that, if certain Patrolmen stopped signing grievances, they
would get further ahead violated Section 964(1)(A) of the Act. Read objectively
the remark in contention clearly meant that employees who did not exercise their
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basic statutory right to file grievances would gain greater benefits or rewards.
Although not a threat, this apparent suggestion of gain, in return for forbearance
of a basic statutory right, constitutes interference with the free exercise of
that right. To remedy this violation, we will order Chief Huston to cease an d
desist from such conduct and, further, to sign and post a copy of the attached
notice, in all areas where notices are normally posted for the benefit of the
Dispatchers and Patrolmen. This notice will be signed by Chief Huston and be
maintained by the Employer for a period of ten (10) days. This notice is
needed to remedy the violations of the Act found herein and to effectuate the
policies of the Act.
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:
That the Town of Kittery, and its representatives and agents:
1. Cease and desist from:
(a) Outside of the normal course of collective bargaining,
threatening the Police Department Dispatchers with loss
of their jobs unless they withdraw and modify collective
bargaining proposals concerning their work schedule;
(b) Suggesting to Police Department employees that, if said
employees stopped signing grievances, they might get
further ahead;
(c) In any other manner interfering with, restraining, or
coercing its Police Department employees in the exercise
of rights guaranteed them by Section 963 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act;
(a) Post at the Kittery Police Department a copy of the attached
Notice. Copies of the Notice, after being signed and dated
by Police Chief George Huston, shall be posted immediately
by the Town of Kittery and shall be maintained by it for
10 days thereafter in all places where notices to the Kittery
Polite Department Dispatchers and Patrolmen are customarily
posted. The Town of Kittery shall take reasonable steps
to insure that the notices are not altered, defaced, or
covered by any other material.
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(b) Notify the Executive Director, in writing, within 20
days from the date of this Decision and Order, of the
steps the Town of Kittery has taken to comply with this
Order.
Dated at Augusta, Maine this 13th day of July, 1984.
MAINE LABOR RELATIONS BOARD
The parties are advised /s/_______________________________________
of their right, pursuant Sidney W. Wernick, Chairman
to 26 M.R.S.A. Section
968(5)(F), to seek a
review by the Superior
Court of this decision by /s/_______________________________________
filing a complaint in Thacher E. Turner, Employer Representative ve
accordance with Rule 80B
of the Rules of Civil
Procedure within 15 days
after the date of this /s/_______________________________________
decision. Harold S. Noddin, Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
_________________________________________________________________________________
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL NOT, outside of the normal course of collective bargaining, threaten
the Police Department Dispatchers with loss of their jobs unless they with-
draw and modify collective bargaining proposals concerning their work schedule.
(2) WE WILL NOT suggest to Police Department employees that, if said employees
stopped signing grievances, they might get further ahead.
(3) WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed them by Section 963 of the
Municipal Public Employees Labor Relations Act.
TOWN OF KITTERY
Dated: ______________________________ By: _________________________________
George Huston, Chief of Police
______________________________________________________________
This Notice must remain posted for 10 consecutive days as required by the Decision
and Order of the Maine Labor Relations Board and must not be altered, defaced, or
covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289-2015.