STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-29
Issued: October 9, 1984
______________________________________
)
TEAMSTERS LOCAL UNION NO. 48, State, )
County, Municipal and University )
Employees In The State Of Maine, )
)
Complainant )
) DECISION AND ORDER
v. )
)
TOWN OF WELLS and Its Town Manager, )
FRED BRESLIN, )
)
Respondents )
______________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section
968(5)(B) on May 22, 1984, by Teamsters Local Union No. 48 ("Union"). The
Union's complaint alleges that the Town of Wells ("Employer"), acting by and
through its Town Manager, Fred Breslin, violated 26 M.R.S.A. Sections 964(1)(A),
(B), (C), (D), and (F), by terminating the employment of the Wells Code
Enforcement Officer, by making various statements to said employee, by placing
documents into the employee's personnel file without the employee's knowledge,
and by placing a written warning into the employee's personnel file which was
comprised of citizens' complaints, without proper investigation of the com-
plaints and without notifying the employee of said warning until after it was a
permanent part of his file. On May 31, 1984, the Employer filed an answer to
the Union's complaint. On June 28, 1984, the Employer filed an amended answer
to the Union's complaint. In both the original and the amended answers, the
Employer alleges that the Union's complaint fails to aver any conduct which vio-
lates any section of the Municipal Public Employees Labor Relations Act ("Act"),
26 M.R.S.A. Section 961, et seq., that the Employer's conduct did violate any
section of the Act, and praying that the Union's complaint be dismissed.
A pre-hearing conference on the case was held on July 9, 1984, Alternate
Chairman Donald W. Webber presiding. On July 11, 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 hearing on the merits of the case was held on August 9, 1984, Alternate
Chairman Donald W. Webber 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 was represented
by Gordon C. Ayer, Esquire. The parties were given full opportunity to examine
and cross-examine witnesses, introduce evidence, and make argument.
JURISDICTION
Teamsters Local Union No. 48 is a "public employee organization," within the
meaning of 26 M.R.S.A. Section 968(5)(B), engaged in the business of organizing
and representing public employees for purposes of collective bargaining. The
Town of Wells is the public employer, within the definition of 26 M.R.S.A.
Section 962(7), of the Code Enforcement Officer of the Town of Wells. At all
times relevant hereto, Fred Breslin has been the Town Manager of the Town of
Wells and the agent or employee of the Town of Wells. Since the allegations
herein concerning Mr. Breslin allegedly arose out of and were performed by him
within the course of his employment with the Town of Wells, Mr. Breslin is a
public employer, within the meaning of 26 M.R.S.A. Section 962(7). The juris-
diction of the Maine Labor Relations Board ("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 a public employee organization, within
the meaning of 26 M.R.S.A. Section 968(5)(B), engaged in the business of orga-
nizing and representing public employees for purposes of collective bargaining.
2. The Town of Wells is the public employer, within the definition of 26
M.R.S.A. Section 962(7), of the Code Enforcement Officer of the Town of Wells.
3. Fred Breslin, at all relevant times the Town Manager and the agent or
employee of the Town of Wells, is the public employer, within the meaning of 26
M.R.S.A. Section 962(7), of the Code Enforcement Officer of the Town of Wells.
4. During early November, 1982, the Town Manager received letters from the
Planning Board Chairman and from a member of the Board concerning the Code
Enforcement Officer's hostile, uncooperative, and arrogant attitude toward Board
members during the preceding year. Shortly thereafter, the Town Manager and the
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complaining Board member met with the Code Enforcement Officer and discussed the
substance of the foregoing letters. The two letters were placed in the Code
Enforcement Officer's personnel file, without the employee's knowledge of such
action.
5. On January 20, 1983, the Town Manager sent the Code Enforcement Officer
a letter, commending the latter for the professional and courteous manner with
which he had dealt with a citizen, and included a copy of the citizen's letter
complimenting the employee.
6. On June 6, 1983, the Town Manager gave the Code Enforcement Officer an
oral reprimand for not treating citizens with courtesy and respect and placed a
written record of the discipline in the employee's personnel file.
7. On June 20, 1983, the Code Enforcement Officer took a vacation day
without the knowledge or approval of the Town Manager. As a result, the Town
Manager wrote him a letter, the following day, stating that, in the future, all
vacations were to be taken only with the prior approval of his immediate super-
visor, the Town Manager.
8. During October of 1983, the Town Manager orally admonished the Code
Enforcement Officer not to call his home (a toll call) from his office. Despite
this warning, telephone calls from the Code Enforcement Officer's office to his
home continued to be made as late as during April of 1984. No definitive
evidence was introduced as to the identity of the person(s) making said calls.
9. On October 26, 1983, the Town Manager gave the Code Enforcement Officer
a written reprimand because of the latter's attitude toward the public. The
letter stated that it resulted from three unrelated citizen complaints received
by the Town Manager and concluded by stating that "rude and discourteous
behavior) ... cannot and will not be tolerated."
10. On the date mentioned in the preceding paragraph, the Town Clerk, pur-
suant to the Code Enforcement Officer's request and without the Town Manager's
knowledge, permitted the Code Enforcement Officer to see his personnel file.
Under Articles 22 and 5 of the Town of Wells Board of Personnel and Review Rules
and Regulations, the Town employees' personnel files are to be kept in a
separate locked file in the vault of the Wells Municipal Building and the only
persons having keys to the file are the Town Manager and the Town Clerk. At the
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time of this inspection, the only document in the Code Enforcement Officer's
personnel file was the letter of reprimand described in paragraph 9 above.
11. On October 28, 1983 and in response to the Code Enforcement Officer's
request for greater specificity, the Town Manager provided the employee with a
written explanation of the details (including the names of the complainants and
their particular charges) of the complaints mentioned in the October 26th writ-
ten reprimand.
12. On November 3, 1983, the Union filed a Petition for Unit Clarification
with the Board seeking to include the Code Enforcement Officer into an existing
bargaining unit composed of all full-time patrolmen, detectives, corporals, and
sergeants employed by the Wells Police Department.
13. On November 8, 1983, the Code Enforcement Officer was scheduled to
appear at an Employment Security Appeals Tribunal hearing in Biddeford. The
purpose of the hearing was to review the propriety of denial of unemployment
compensation benefits to a former Town employee. As the former employee's
direct supervisor, the Code Enforcement Officer was to testify on behalf of the
Employer. Prior to the hearing, the Code Enforcement Officer met with the
Employer's representative and, citing his "union negotiations" with the
Employer, said he was an employee, not a supervisor, and refused to testify on
behalf of the Employer. Later, the Code Enforcement Officer appeared at the
hearing, attempted to provide answers beyond the scope of the questions asked,
and himself asked questions tending to support the former employee's position.
14. On or about the same date noted in the preceding paragraph, the above-
mentioned Employer's representative phoned the Town Manager, discussed the Code
Enforcement Officer's statements and actions cited above, and expressed her
upset with such conduct. On December 9, 1983, the representative wrote a
lengthy letter to the Town Manager detailing the Code Enforcement Officer's
behavior on November 8th.
15. On November 15, 1983, a citizen of Wells wrote to the Town Manager
complaining that the Code Enforcement Officer had been unresponsive to concerns
raised about the development of an abutting parcel of land and that the employee
was uncooperative in repeatedly failing to allow the citizen to review site
plans and other public documents relating to the development. The Code
Enforcement Officer did, finally, allow the citizen access to the pertinent
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plats and permits.
16. In a memorandum to the Board of Personnel and Review dated November 16,
1983, the Town Manager stated that, during the preceding one and one-half years,
he had often defended the Code Enforcement Officer's actions to both citizens of
the Town and to members of the Board of Selectmen. The Town Manager's purpose
in writing to the Board was to explain why the Code Enforcement Officer had
received the written reprimand, cited in paragraph 9 above, because, due to a
scheduling conflict, the Town Manager was unable to attend the appeals hearing
on said reprimand. The Town Manager explained that "the reason for Mr.
Beaulieu's receiving the letter which he is appealing is the culmination of a
number of complaints that I have received over the past year and a half con-
cerning Mr. Beaulieu's attitude and behavior as Code Enforcement Officer for the
Town of Wells."
17. On November 16, 1983, an area real estate broker wrote to the Town
Manager to express his displeasure with the Code Enforcement Officer's proper
application of an ordinance prohibiting tree cutting. The broker stated that
the cutting ban might have cost him a sale and he described the Code Enforcement
Officer's attitude as being "imperious to the point of arrogance." The letter
went on to outline how the broker had gone to the Town Manager's office and that
the latter had "informed me about the technique to handle a variance and later
wrote me a letter to handle it with the Board of Selectmen." The letter conclu-
des by stating that, after the filing of the variance request and at the bro-
ker's urging, the prospective purchaser had called the Code Enforcement Officer.
Based upon his hearing the buyer's side of that telephone conversation, the
broker concluded that the Code Enforcement Officer had treated his client
"rather rudely."
18. During Thanksgiving week of 1983, the Town Manager orally told the Code
Enforcement Officer: "You are a department head and are unable to join a
Union."
19. On or about the first week of December of 1983, the Town Manager told
the Code Enforcement Officer: "I think it's about time you started looking for
other employment."
20. Sometime during December, 1983, the Code Enforcement Officer requested
the Town Manager to produce a proficiency certificate which was contained in the
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employee's personnel file. The Town Manager promptly provided the certificate.
At that time, the Code Enforcement Officer neither requested nor saw the con-
tents of his personnel file; however, he did accompany the Town Manager to the
vault when the Manager went to get the requested certificate.
21. On December 20, 1983, a Labor Relations Board Hearing Examiner conducted
a hearing on the Union's Unit Clarification Petition, mentioned in paragraph 12
hereof. At the hearing, the Employer, represented by its Town Manager, opposed
the granting of the petition on the grounds that the Code Enforcement Officer
was a department head and was, therefore, excluded from collective bargaining
under 26 M.R.S.A. Section 962(6)(D).
22. The minutes of the Wells Planning Board meeting of December 26, 1983
state: "CODE ENFORCEMENT OFFICER'S ATTENDANCE AT PLANNING BOARD MEETINGS The
Board Membership present felt it should be noted for record purposes that the
Code Enforcement Officer has been present at only two of the last seven Planning
Board meetings."
23. On or about January 20, 1984, the Town Manager left a memorandum on the
Code Enforcement Officer's desk which stated that, enclosed therewith, was a
copy of each of the written complaints mentioned in paragraphs 14 and 17 above.
The memorandum concluded by stating; "Inasmuch as I have discussed each with you
previously, I am writing to inform you that each complaint will be placed in
your personnel file."
24. As a result of the hearing noted in paragraph 21 hereof, the Hearing
Examiner issued a Unit Clarification Report, on January 26, 1984. The Hearing
examiner ruled that the Code Enforcement Officer was a department head, within
the definition of 26 M.R.S.A. Section 962(6)(D), and denied the Union's peti-
tion. The Union promptly appealed the Hearing Examiner's decision to the full
Labor Relations Board.
25. On February 7, 1984, the Town Manager placed a written record of oral
reprimand into the Code Enforcement Officer's personnel file. The memorandum
stated:
"At 9:05 a.m. I called the CEO, Jeff Beaulieu to remind him
that I did not have a report from his office to include in
the Town Report. I explained that we were preparing the
report for the printer and needed his report. He said he'd
check with his secretary because he thought he had given it
to her a month ago. I told him that I wanted the report
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within an hour. His reply was that he couldn't do that. I
ordered him at that point to have the report on my desk in an
hour. He said, 'Sorry' and hung up."
"At that point I went to Mr. Beaulieu's office, told him
never to hang up when I was talking to him and to have the
report in my office in an hour. I then left his office."
The Code Enforcement Officer prepared and delivered the required report to the
Town Manager's office, a few minutes after the above oral reprimand.
26. On March 9, 1984, the Labor Relations Board conducted an appellate
hearing to review the Unit Clarification Report noted in paragraph 24 above. In
a decision issued on April 11, 1984, a majority of the Labor Relations Board
reversed the Hearing Examiner's decision, held that the Code Enforcement Officer
is a public employee within the meaning of the Act, and placed the classifica-
tion into a single-position bargaining unit.
27. On April 20, 1984, the Town Manager and the Code Enforcement Officer met
with a citizen of Wells on his property and at his request. Because of a
sewerage disposal problem, the landowner had been unable to build on the site
and he was seeking advice on how to correct the problem. The citizen was calm
and courteous during the discussion; however, the Code Enforcement Officer was
rude and he left the area abruptly, prior to the end of the meeting. The Town
Manager apologized to the landowner for the Code Enforcement Officer's behavior
and, upon returning to the Municipal Building, orally reprimanded the employee
for his arrogance.
28. On April 30, 1984, a citizen wrote to the Town Manager about the Code
Enforcement Officer's hostile and belligerent attitude. The landowner also
complained that the employee had taken action relating to her property, without
documenting the identity of the persons who initiated such action, and further
stated that the Code Enforcement Officer had insulted her in-laws by asking them
whether they were "good Catholic people."
29. On May 1, 1984, the Town Manager wrote a memorandum to the Code
Enforcement Officer stating that the Board of Selectmen had waived the site
review process for the construction or modification of the toll booths at Exit 2
of the Maine Turnpike and ordering the employee to issue appropriate building
and/or plumbing permits, "providing all other pertinent criteria are followed."
Feeling that the Board of Selectmen had acted illegally in waiving the site
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review process, the Code Enforcement Officer asked the Town Manager's permission
to address the Board. The Town Manager rejected the request and the Code
Enforcement Officer renewed his plea with the Chairman of the Board of
Selectmen, who also denied it. As a result of this incident, the Town Manager
told the Code Enforcement Officer that he was "sick and tired" of the latter's
"insubordination."
30. On May 2, 1984, the Town Manager told the Code Enforcement Officer that
the latter had one week in which to resign or he would be terminated, effective
June 1, 1984. Shortly thereafter, the Code Enforcement Officer and a represen-
tative of the Union met with the Town Manager and asked for and were allowed a
period of two weeks during which the employee could consider submitting his
resignation.
31. On May 8, 1984, an individual who had donated land within the Town to
the University of New Hampshire in 1981, wrote to the Town Manager and stated
that, on May 7th, the Code Enforcement Officer had refused to meet with him to
discuss whether construction would have been permitted on the relevant parcel,
under the ordinances in effect during 1981. The donor was interested in the
status of the land at the time of the gift in order to establish the amount of
the charitable tax deduction resulting from the transfer. On February 9, 1984,
the Code Enforcement Officer had written to the Internal Revenue Service indi-
cating that no construction was permitted on the pertinent parcel, under the
ordinances then in effect, and the donor was seeking an opinion as of the date
of the transfer.
32. On May 17, 1984, the Town Manager wrote a letter to the Code Enforcement
Officer terminating the latter's employment with the Town of Wells, effective
June 1, 1984. As justification for the discharge decision, the Town Manager
cited the following: several verbal complaints from citizens of the Town as
well as the incidents and/or complaints mentioned in paragraphs 4, 6, 7, 8, 9,
13, 14, 15, 22, 25, 27, 28 and 31 above. The termination letter concluded as
follows:
"All of the specified problems referenced herein, together
with a multitude of verbal complaints not otherwise
referenced, have led me to the conclusion that your rela-
tionship with the Town as Code Enforcement Officer must be
terminated."
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33. During May of 1984, the Town Manager made the following two statements
to the Code Enforcement Officer:
"You aren't being fired for any one reason, it is a lot of
things over the past year and a half."
and
"It's too bad you didn't get the job in York. I gave you a
good recommendation."
34. In the case of each of the complaints against the Code Enforcement
Officer mentioned herein, the Town Manager discussed the respective allegations
with both the complainants and the Code Enforcement Officer, prior to taking
action thereon.
35. Teamsters Local Union No. 48 is the certified bargaining agent for
separate bargaining units of Police Department, Fire Department, and Public
Works Department employees of the Town of Wells and a collective bargaining
agreement is currently in effect for each such unit.
DECISION
The Union's main contention is that the Employer has discouraged membership
in an employee association by discriminating against the Code Enforcement
Officer, Mr. Beaulieu, in regard to his tenure and other terms and conditions of
employment, in violation of 26 M.R.S.A. Section 964(1)(B). The premise
underlying the Union's position is that the Employer's actions were taken in
retaliation against the filing of a unit clarification petition, whose purpose
was to secure the inclusion of the Code Enforcement Officer position into an
existing bargaining unit of Wells Police Department employees. The Employer
responds to the Union's contention with the averment that its conduct predated
and was unrelated to the filing of the petition and that its actions were moti-
vated by legitimate personnel reasons. Since the Union has alleged that the
Employer's actions were motivated by protected activity and the Employer con-
tends that its conduct was solely the result of legitimate personnel con-
siderations, this is a "dual motive" disciplinary case. The Board has adopted
and applied the "Wright Line" test developed by the National Labor Relations
Board as the controlling standard in resolving this type of controversy. Allen
C. Holmes v. Town of Old Orchard Beach, MLRB No. 82-14, at 10-11 (Sept. 27,
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1982), aff'd, Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's
Assn., York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983); Russell B. Ritchie
v. Town of Hampden, MLRB No. 83-15, at 5-6 (July 18, 1983), aff'd. Town of
Hampden v. Maine Labor Relations Board, Penobscot Super. Ct., Docket No.
CV-83-353 (Sept. 14, 1984). Subsequent to the Board's adoption of the "Wright
Line" test, its use in "dual motive" discipline cases was approved by the
Supreme Court of the United States. NLRB v. Transportation Management Corp.,
____ U.S. ____, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). The Court's unanimous
opinion described the "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 substantial 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."
Transportation Management Corp., supra, 103 S.Ct., at 2473, 76 L.Ed.2d, at 674
(footnotes omitted), adopted by the Board, Jeannie Ross v. Portland School
Committee, MLRB No. 83-04, at 19 (Aug. 29, 1983). The complainant must be
substituted for the General Counsel in the above description, since there is no
General Counsel in practice before this Board.
The heart of the Union's complaint is that the Employer, acting through its
Town Manager, reprimanded and, ultimately, discharged the Code Enforcement
Officer because the employee engaged in conduct protected by the Act.
Specifically, the Union alleges that the Employer's actions were taken in
response to the filing of a unit clarification petition which sought to include
the Code Enforcement Officer within the coverage of the Act. In order to
satisfy the first part of the controlling "Wright Line" standard, the Union must
establish, by a preponderance of the evidence, that the employee at issue
engaged in activity protected by the Act and that said protected conduct was a
motivating factor in the Employer's imposition of discipline upon that employee.
There is no question that the Code Enforcement Officer has engaged in conduct
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protected by the Act. We have held that the filing of a unit clarification
petition, for the purpose of securing collective bargaining rights for one or
more public employees, is an activity protected by the Act and that any action
by the public employer, against the employees covered by the petition and in
retaliation for its filing, violates Sections 964(1)(A) and (B) of the Act.
Council 74, AFSCME v. City of Bangor, MLRB No. 80-41, at 7-8 (Sept. 24, 1980),
aff'd. City of Bangor v. Council 74, AFSCME, 449 A.2d 1129, 114 (Me. 1982).
Having shown the employee's participation in protected activity, the Union then
had to establish, by a preponderance of the evidence, that such involvement was
at least one motivating factor for the Employer's actions. The Union's attempt
to prove the causal relationship, between the protected conduct and the imposi-
tion of discipline, rests on the following assertions: (1) although the Code
Enforcement Officer's job performance remained unchanged before and after the
filing of the unit petition, the employee was not disciplined until after the
filing; (2) the Employer imposed discipline against the Code Enforcement
Officer, as a result of various citizen and other complaints about the
employee's attitude, without first investigating the employee's side of the
incidents which were the subject of the complaints; and (3) certain documents,
which pre-dated October 26, 1983 and which were later used in partial justifica-
tion of the discharge decision, were not in the Code Enforcement Officer's per-
sonnel file on October 26, 1983. Although the Union's factual allegations
might, if established, have constituted a prima facie case of discrimination
under the Act, each such contention was successfully rebutted by the Employer.
The Union's first allegation of fact, cited in the preceding paragraph, was
not supported by the evidence before the Board. Although the petition for unit
clarification was not filed until November 3, 1983, the Code Enforcement Officer
had received several oral reprimands and one letter of reprimand prior to that
date. On June 6, 1983, the Town Manager gave the employee an oral reprimand for
not treating citizens of the Town with due respect and courtesy. The Town
Manager cautioned Mr. Beaulieu in writing, on June 21, 1983, for the latter's
taking vacation time without first securing the Town Manager's approval. The
Town Manager orally warned the Code Enforcement Officer about the latter's use
of his office phone for personal toll calls, during October of 1983. Finally,
on October 26, 1983, the Town Manager gave the employee a letter of reprimand,
regarding three separate complaints about his job performance. Any inference
that the employee at issue was reprimanded as a result of the filing of the unit
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petition was, therefore, not supported by the evidence.
The Union's second averment of fact was refuted by the evidence. The Union
contended that the Employer took the various disciplinary actions against the
Code Enforcement Officer without first investigating the employee's version of
the incidents which give rise to such discipline. The thrust of the Union's
argument, flowing from this contention, was that any allegedly legitimate per-
sonnel reasons advanced by the Employer in support of the discharge decision
were pretextual, because the employee had not had the opportunity to challenge
said allegations in a timely manner. The Town Manager testified that he had
discussed each of the complaints against the Code Enforcement Officer with the
employee shortly after receiving each of the complaints and prior to taking any
action thereon and we find his testimony to be credible. The Code Enforcement
Officer himself testified that, although in many instances he had not seen the
written complaints prior to receiving the letter terminating his employment, he
had in most cases discussed the circumstances underlying the complaints with
the Town Manager, at or near the time of said occurrences.
The Union's third factual contention is that certain documents, which pre-
dated October 26, 1983 and which were later used in partial justification of the
discharge decision, were not in the Code Enforcement Officer's personnel file on
October 26, 1983. Although the Union did not voice a specific argument based
upon this factual premise, the import of the Union's position was clearly to
call into question the legitimacy of the pertinent documents and, hence, to
challenge the propriety of any personnel action based thereon. Because of the
seriousness of this allegation, the Board has carefully examined the testimony
relating to the documents in question. The undisputed facts are that, shortly
after receiving a letter of reprimand on October 26, 1983, the Code Enforcement
Officer asked the Town Clerk for permission to review his personnel file. The
Town Clerk, who is the only official other than the Town Manager having a key to
the locked cabinet in which the personnel files are kept, accompanied the Code
Enforcement Officer to the vault and allowed the employee to view a file folder
bearing his name. The folder contained only the October 26th letter of repri-
mand. The following is a list of all of the documents, either introduced into
evidence or mentioned in the record, which pre-dated October 26, 1983 and which
should have been in the Code Enforcement Officer's personnel file on that date:
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1. November 8, 1982 letter from the Planning Board Chairman
to the Town Manager [4],
2. November 15, 1982 letter from a Planning Board Member to
the Town Manager [4],
3. January 20, 1983 letter of commendation from the Town
Manager to the Code Enforcement Officer [5],
4. Town Manager's note concerning an oral reprimand dated
June 6, 1983 [6],
5. June 21, 1983 letter from the Town Manager to the Code
Enforcement Officer [7],
6. Letter of reprimand dated October 26, 1983 [9], and
7. Code Enforcement Officer's certificate of proficiency
[20].
The numbers contained within brackets in the above list indicate the paragraphs
of our findings of fact where each document is mentioned or described. The Code
Enforcement Officer testified that, although he had not seen the letters listed
as numbers 1 and 2 above prior to receiving the letter terminating his
employment, he did meet with the Town Manager and the author of the second
letter to discuss their mutual problems and concerns, during late November or
early December of 1982. In reference to the memorandum of oral reprimand listed
as number 4 above, the Code Enforcement Officer did not deny that he had been
orally reprimanded on that date. The Code Enforcement Officer admitted that he
had received the letter designated as number 5 above and stated that he had
discussed the situation giving rise to the document with the Town Manager, at
the time he received it. This testimony refutes any suggestion that the docu-
ments were "fabrications" designed to "build a case" against the employee.
Our review of the record indicates that the Union's attempt to set forth a
prima facie case of unlawful discrimination was not supported by the evidence.
The Code Enforcement Officer's attitude and personality problems began to be
documented as early as November of 1982, the employee received several oral
reprimands and a written reprimand prior to the filing of the unit clarification
petition and, therefore, said discipline could not have resulted from the filing
of the petition. Secondly, the evidence revealed that discipline was imposed
upon the Code Enforcement Officer only after the substance of the complaints
giving rise to said discipline had been discussed with the employee. Finally,
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although the Code Enforcement Officer did not see certain documents in his per-
sonnel file on a certain date, the evidence indicates that there was no irregu-
larity concerning the contents of said file. Since we have held that the Union
has not met its burden, under the first part of the controlling legal standard,
we need not discuss the second part of the "Wright Line" analysis. We will,
therefore, dismiss the Union's allegation that the Employer has violated Section
964(1)(B) under the facts of this case.
The Union's second major contention is that the Employer, through its
actions and through various statements by the Town Manager, has violated Section
964(1)(A) of the Act. The legal standard which we have consistently applied in
evaluating alleged violations of this Section of the Act is as follows:
"A finding of interference, restraint, or coercion does not
turn on the employer's motive or on whether the coercion suc-
ceeded 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, at 4-5 (June 26, 1981); Maine State Employees Association v. State
Development Office, MLRB No. 84-21, at 7-8 (July 6, 1984). Turning first to the
Employer's actions in this case, we conclude that the Code Enforcement Officer
has had an attitudinal problem, since at least November of 1982. Although he
probably did a good job enforcing the letter of the law of the statutes and
ordinances within his domain, he was arrogant, uncooperative, and hostile in his
treatment of citizens of the Town as well as in his relationship with other
public officials and bodies. Despite repeated verbal and written reprimands,
both before and after the filing of the unit clarification petition, the Code
Enforcement Officer's belligerent and antagonistic conduct continued unabated.
Under all of the facts herein, we cannot conclude that the Employer's actions
tended to interfere with the Employee's rights protected by the Act. The
Employer's actions were entirely warranted in light of the Code Enforcement
Officer's attitude and behavior and did not violate Section 964(1)(A) of the
Act.
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The Union went on to contend that four statements, spoken by the
Town Manager to the Code Enforcement Officer, transgressed the provi-
sions of Section 964(1)(A) of the Act. The allegedly objectionable
comments, followed by the date on which each was made are:
"I think it's about time you started looking for other
employment." December, 1983;
"You are a department head and are unable to join a union."
November, 1983;
"You aren't being fired for any one reason, it is a lot of
things over the past year and a half." May, 1984; and
"It's too bad you didn't get the job in York. I gave you a
good recommendation." May, 1984.
Since no evidence was offered concerning the context in which each of the state-
ments was made, we can only examine the words themselves in evaluating the
merits of the Union's allegation. In certain contexts, the first statement
cited might be threatening or coercive; however, in light of our conclusion that
the various reprimands given to the Code Enforcement Officer prior to this date
were justified, this comment could reasonably be interpreted as an expression of
the Town Manager's view that the employee had not corrected the problems which
were the subject of said reprimands. The second comment was uttered shortly
before the date of the unit clarification hearing mentioned in paragraph 21 of
our findings of fact and is merely a restatement of the Employer's position at
that proceeding. The third statement was made shortly after the delivery of the
letter terminating the Code Enforcement Officer's employment. Once again, it is
merely a restatement of the reasons outlined in the letter as justification for
the decision to dismiss the employee. The final statement is merely an
expression of commiseration that the employee did not get a new position and an
indication that the Town Manager had supported the employee's efforts to secure
that position. We believe that a reasonable interpretation of this remark is
that the Town Manager felt that the Code Enforcement Officer could do a good job
in a different municipality; however, the employee's attitude had deteriorated
to the point where it interfered significantly with the performance of his
duties and with his interaction with the citizens and officials of the Town of
Wells. As the complainant, the Union had the burden of establishing that the
Employer violated the relevant section of the Act by a preponderance of the evi-
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dence. Since none of the statements cited are inherently intimidating,
threatening, or coercive and without knowing the context in which each was
uttered, we hold that none of the comments violated Section 964(1)(A) of the
Act.
The Union's complaint further alleged that the Employer has violated 26
M.R.S.A. Sections 964(1)(C), (D), and (F). The conduct prohibited by the first
section cited has been defined as follows:
"[Section 964(1)(C)] of the Act is directed at the evil of
too much financial or other support of, encouraging the for-
mation of, or actually participaing in, the affairs of the
union and thereby potentially dominating it."
Teamsters Local 48 v. Town of Kittery, MLRB No. 84-25, at 4 (July 13, 1984);
citing Northern Aroostook Teachers Association v. M.S.A.D. No. 27 Board of
Directors, MLRB No. 81-52, at 7 (Nov. 19, 1981). This case did not involve a
situation where the Employer either participated in or otherwise supported the
activities of the Union. The Board holds, therefore, that the Employer did not
violate Section 964(1)(C) of the Act. The second section of the Act noted above
protects the rights of employees and employee organizations to file petitions or
complaints or to give testimony before the Board by "protect[ing] employees
involved in any stage of a Labor Relations Board proceeding from a wide variety
of discriminatory actions by the employer." Town of Kittery, supra, at 5;
citing Southern Aroostook Teachers Association v. Southern Aroostook Community
School Committee, MLRB Nos. 80-35 and 80-40, at 24 (April 14, 1982). The
Union's allegation that the Employer violated Section 964(1)(B) was based on the
premise that the disciplinary action received by the Code Enforcement Officer
resulted from the filing of a unit clarification petition on the employee's
behalf. We held that the Union failed to prove this premise by a preponderance
of the evidence and said holding controls here. The evidence failed to
establish that any of the Employer's actions were in any way related to the
filing of the unit petition or to the employee's giving testimony before the
Board. We hold, therefore, that the Employer did not violate Section 964(1)(D)
of the Act. The last statutory section cited above provides:
"Public employers, their representatives and their agents are
prohibited from. . . . Blacklisting of any employee organi-
zation or its members for the purpose of denying them
employment."
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The only evidence in the record which is relevant to this claim is the Town
Manager's statement, that he had given the Code Enforcement Officer a good
recommendation to support the employee's efforts to secure a job in York, and
the fact that the employee was not hired for the position. There is no evidence
that the Employer in any way dissuaded the Town of York from hiring the Code
Enforcement Officer and the Town Manager's above comment suggests that the oppo-
site was true. The Board holds that the Employer did not violate Section
964(1)(F) in this case.
ORDER
On the basis of the foregoing findings of fact and decision, and by virtue
of and pursuant to the powers granted to the Maine Labor Relations Board by 26
M.R.S.A. 968(5), it is ORDERED:
That the prohibited practices complaint filed on May 22, 1984
by Teamsters Local Union No. 48, in Case No. 84-29, be and
hereby is dismissed.
Dated at Augusta, Maine, this 9th day of October, 1984.
MAINE LABOR RELATIONS BOARD
/s/_________________________________
Donald W. Webber, Alternate Chairman
/s/_________________________________
Thacher E. Turner
Employer Representative
/s/__________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right, pursuant to 26 M.R.S.A. 968(5)(F), to
seek a review by the Superior Court of this decision by filing a complaint in
accordance with Rule 808 of the Rules of Civil Procedure within 15 days after
the date of this decision.
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