STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-04
Issued: October 18, 1984
__________________________________
)
WILLIAM SINGLE )
)
and )
)
SANFORD POLICE ASSOCIATION, )
)
Complainants, ) DECISION AND ORDER
)
v. )
)
TOWN OF SANFORD, )
)
Respondent. )
__________________________________)
The question presented in this prohibited practices case is
whether Town of Sanford (Town) representative Robert Ruel attempted to
harass or intimidate Police Department employees engaged in the exer-
cise of protected labor activities. We find that one incident
resulted in a violation of the municipal Public Employees Labor
Relations Act, 26 M.R.S.A. 961, et seg. (Act), and order an
appropriate remedy.
William Single and the Sanford Police Association (Association)
filed the prohibited practices complaint on August 2, 1984, alleging
that the Town violated 26 M.R.S.A. 964(1)(A), (B) and (C) (1974) by
the actions of Police Captain Ruel. The Town filed an answer denying
any violation of the Act on August 24, 1984. On September 19, 1984
the parties submitted a pre-hearing conference report, the contents of
which are incorporated herein by reference.
A hearing on the case was held on September 28, 1984, Alternate
Chairman William M. Houston presiding, with Alternate Employer
Representative Linda D. McGill and Alternate Employee Representative
Russell A. Webb. The parties were given full opportunity to examine
and cross-examine witnesses, introduce evidence, and make argument.
Single and the Association were represented by John W. Chapman, Esq.,
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and the Town by Annalee Z. Rosenblatt.
JURISDICTION
Single is a "public employee" and the Association is a "bargaining
agent" within the meaning of 26 M.R.S.A. 968(5)(B) (Supp. 1983-84).
The Town is a "public employer" as defined in 26 M.R.S.A. 962(7)
(Supp. 1983-84). The jurisdiction of the Maine Labor Relations Board
to hear this case and render a decision and order lies in Section
968(5)(B) and (C) (1974).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1. The Sanford Police Association is the recognized bargaining
agent for a bargaining unit of all police officers and dispatchers
employed by the Town of Sanford Police Department, except for certain
managerial and confidential positions such as the Chief and Captain.
William Single is a patrolman in the Police Department and is the
Association's treasurer and spokesman. As spokesman, Single handles
all grievances filed by members of the bargaining unit. Robert Ruel
is the patrol commander for the Department with the rank of Captain.
Ruel is second to the Chief in command of the Department. A collec-
tive bargaining agreement with a term of April 1, 1982 to December 31,
1984 is in effect between the Association and the Town.
2. On May 15, 1984 the Sanford Board of Selectmen heard 4
grievances filed by members of the Police Department bargaining unit.
Three of the 4 grievances involved actions by Ruel, who appeared as a
witness at the grievance hearings.
3. During the afternoon of May 15, the incident which gave rise
to this case occurred. officers about to go on duty report 20 minutes
prior to the start of the shift to be briefed by the shift supervisor
about matters occurring during previous shifts. At about 2:40 p.m.
Single, Corporal Roger Laprise, Officer Paul, and a dispatcher
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reported for the 3:00-11:00 p.m. shift briefing and the shift super-
visor, Sergeant Turmelle, began the briefing. At some point during
the briefing Captain Ruel walked into the briefing area, picked up
Laprise's nightstick which was lying on a table, and glared fixedly at
Single for several minutes while slapping the nightstick in his hand.
Ruel was not smiling and did not appear to be in a joking mood during
this incident. Turmelle asked Ruel if he had anything to say. Ruel
said "no" and told Turmelle to order the men on the road. The
employees later successfully grieved the order putting them on the
road prior to the start of their shift.
DECISION
The question we must decide is whether the nightstick incident
involving Ruel, a management representative, and Single, the union
spokesman, constitutes a violation of the Act. We find that it does.
We have stated the test for determining a violation of Section
964(1)(A) on many occasiona:[fn1]
"A finding of interference, restraint, or coercion
does not turn on the employer's motive or on whether
the coercion succeeded of failed . . . 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."'
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1 26 M.R.S.A. 964(l)(A) (1974) prohibits public employers from
"[ilnterfering with, restraining or coercing employees in the exercise
of rights guaranteed in section 963."
Section 963 (1974) states:
No one shall directly or indirectly interfere
with, intimidate, restrain, coerce or discriminate
against public employees or a group of public employees
in the free exercise of their rights, hereby given,
volutarily to join, form and participate in the
activities of organizations of their own choosing
for the purposes of representation and collective
bargaining, or in the free exercise of any other
right under this chapter.
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MSEA v. Department of Human Services, MLRB No. 81-35 at 4-5 (June 26,
1981), quoting NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); see
also Bridgton Federation of Public Employees v. Hamill, MLRB No. 81-54
at 5 (March 3, 1982); Teamsters Local 48 v. Town of Oakland, MLRB No.
78-22 at 3 (May 22, 1978).
Examining the context in which the incident occurred, we conclude
that Ruel's glaring at Single while slapping the nightstick in his
hand reasonably tended to interfere with the free exercise of Single's
rights as well as the rights of the other employees in the room.[fn2] The
Selectmen's hearing of the 4 grievances was scheduled for that
evening. Three of the 4 grievances involved actions by Ruel, who
obviously knew about the hearing because he appeared as a witness.
Single was the employee handling the grievances. Both Laprise and
Single testified that the incident was threatening. We think it plain
that the Captain's action obviously was intended to convey a "message"
to Single and the other employees--that he was less than pleased about
the grievance proceedings. The right to file and process grievances
is a right protected by Section 963, and Ruel's conduct reasonably can
be seen as an attempt to harass or intimidate the employees because of
their exercise of this right. The nightstick incident therefore
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2 The record contains conflicting testimony as to whether the
nightstick incident ever occurred. Ruel testified that the incident
never occurred, that he could not remember whether he attended the
May 15 afternoon briefing, and that if he was at the station he would
have attended the briefing. Laprise and Single both testified that
the incident occurred on May 15, prior to the grievance hearing with
the Selectmen. In addition, a page from Single's appointment book
indicating a nightstick incident with Ruel on May 15 was admitted in
evidence.
Having observed the forthrightness and demeanor of the witnesses,
we resolve this conflict by crediting the employees' testimony. We
particularly believe that Laprise, who has no apparent direct interest
in this litigation, was an honest, forthright witness. On the other
hand, Ruel seemed to us to exhibit a selective memory. We therefore
discredit his testimony on this point.
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violated Section 964(1)(A).[fn3] We will order the Town and its repre-
sentatives to cease and desist from interfering with, restraining or
coercing Police Department employees in the exercise of rights
guaranteed by Section 963.
The Association also alleges that Ruel violated the Act by
abruptly changing Single's shift assignment two days after the
grievance hearing and by deliberately violating agreements between the
Association and the Town regarding the distribution of overtime work.
Having carefully examined the record with regard to these allegations,
we conclude that these matters could not reasonably tend to interfere
with the free exercise of the employees' Section 963 rights or other-
wise constitute violations of the Act. The record shows a legitimate
reason for the change in the shift assignment, and does not clearly
show any deliberate violations of the overtime policy.
ORDER
On the basis of the foregoing findings of fact and discussion, and
by virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. 968(5)(C) (1974),
it is ORDERED:
that the Town of Sanford and its representatives
and agents cease and desist from interfering with,
restraining or coercing Police Department employees
in their exercise of the rights guaranteed by
Section 963.
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3 We hereby dismiss the Association's allegations that Section
964(1)(B) and (C) have been violated. The record does not show
"discrimination in regard to . . . any term or condition of
employment," so Section 964(1)(B) has not been violated. And, since
Section 964(l)(C) "is directed at the evil of too much financial or
other support of, encouraging the formation of, or actually par-
ticipating in, the affairs of the union," there likewise is no showing
of a (C) violation. See Northern Aroostook Teachers Association v.
MSAD No. 27 Board of Directors, MLRB No. 81-52 at 7 (Nov. 19, 1981).
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Dated at Augusta, Maine, this 18th day of October, 1984.
MAINE LABOR RELATIONS BOARD
The parties are advised of
their right pursuant to
26 M.R.S.A. 968(5)(F)
(Supp. 1983-84) to seek /s/________________________________
review of this decision William M. Houston
and order by the Superior Alternate Chairman
Court by filing a complaint
in accordance with Rule 80B
of the Rules of Civil Pro-
cedure within 15 days of /s/________________________________
the date of this decision. Russell A. Webb
Alternate Employee Representative
/s/________________________________
Linda D. McGill
Alternate Employer Representative
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