STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 89-11
Issued: January 16, 1990
________________________________
)
ALFRED HENDSBEE AND MAINE )
STATE TROOPERS ASSOCIATION, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
DEPARTMENT OF PUBLIC SAFETY, )
MAINE STATE POLICE, )
)
Respondent. )
________________________________)
On November 4, 1988, Alfred Hendsbee (Hendsbee) and the Maine State
Troopers Association (MSTA) filed a prohibited practice complaint with the
Maine Labor Relations Board (Board) alleging that the Department of Public
Safety's Bureau of Maine State Police (Bureau) has violated 26 M.R.S.A.
979-C(1)(A), (B) and (C) (1988). More specifically, the complaint
alleges that by ordering Lieutenant Douglas Holmes to withdraw a step one
grievance response favorable to MSTA unit member Sergeant Michael Pratt, by
commencing an Internal Affairs (IA) investigation of Holmes for giving
testimony favorable to Pratt during the eventual arbitration of that same
grievance, by requesting that MSTA past presidents Sergeants Steven Beal
and Michael Heino submit to questioning by IA respecting their handling of
grievances, by attempting to question MSTA attorney William Troubh
regarding his activities on behalf of Pratt and the MSTA, and by adopting a
policy of referring all grievances to IA, the Bureau has: interfered with,
restrained or coerced employees in the exercise of rights guaranteed by the
State Employees Labor Relations Act (Act), has discouraged membership in
the MSTA through discriminatory acts and has interfered with the adminis-
tration of the MSTA.
The Complainants request the Board issue an order finding that the
Bureau has violated the Act and prohibiting any similar violations in the
future. The Complainants also request that the Board find that Holmes was
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investigated in retaliation for his testimony at arbitration. Finally, the
Complainants request that "any discipline . . . regarding this matter be
stricken," that the Board require a posting of a notice of the Board's
findings of violations of the Act and that the Board order reimbursement of
costs associated with the MSTA's prosecution of its complaint.
The Bureau's November 18, 1988 response to the charge requests
dismissal of those portions of the complaint which relate either to the
alleged issuance of orders to MSEA supervisory unit member Holmes to change
his step one grievance response or to its memorandum to all supervisors
requiring all grievances to be referred to IA, on the bases that the MSTA
is not the bargaining agent of supervisors and that neither Holmes nor the
Maine State Employees Association (MSEA) is a party to the present case.
The Bureau contends that those portions of the MSTA's charges which are
based on the order to withdraw the favorable step one response, as well as
any charges of improper conduct based on the contract which expired on
October 22, 1987, fall outside the Act's six month statute of limitations.
The Bureau's response refuses to address allegations of unlawful discipline
or investigation of Holmes and allegations of unlawful questioning of MSTA
past presidents, on the grounds that such matters are confidential pursuant
to 5 M.R.S.A. 7070 and 25 M.R.S.A. 1631 (1988). The Bureau avers that
the manner of its questioning of one MSTA past president was specifically
designed and effectuated so as not to elicit any information regarding any
communications relative to the grievance that the past president may have
had with Pratt; with Pratt's attorney, Troubh; or with any MSTA repre-
sentative. Accordingly, the Bureau requests the entire complaint be
dismissed. At hearing the Bureau renewed its request for dismissal of
those portions of the complaint which relate to MSEA supervisory unit
employees not represented for the purposes of collective bargaining by MSTA
and its request for dismissal of those portions of the complaint which con-
cern matters which transpired more than six months prior to the filing of
the complaint. Neither party has made a request for deferral in this
matter.
On December 8, 1988, then Alternate Chair Peter T. Dawson conducted a
prehearing conference in this matter. The December 28, 1988 Prehearing
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Conference Memorandum and order issued by Alternate Chair Dawson is incor-
porated in and made a part of this decision and order. An evidentiary
hearing was conducted by the Board consisting of Alternate Chair Jessie B.
Gunther, presiding, Thacher E. Turner, Employer Representative, and George
W. Lambertson, Employee Representative, on January 19 and February 3, 1989.
The Bureau called and elicited testimony at hearing from the following wit-
nesses: Personnel Manager Gary Mather, Administrative Deputy Chief Alfred
Skolfield and Internal Affairs Commander, Lieutenant Lawrence Gross.
The MSTA called and elicited testimony from the following witnesses:
Sergeant Michael Heino, Lieutenant Douglas Holmes and Colonel Andrew
Demers. Upon request the witnesses in the cause were sequestered during
the hearing.
The Complainant filed an initial brief on July 10, 1989; the Respondent
filed a response brief on July 21, 1989. On August 2, 1989, the Board,
over the Respondent's July 27, 1989 objection, granted the Complainant's
Request to file a reply brief. The Complainant's reply brief was filed on
August 7, 1989. The Board deliberated the case on August 30, 1989.
JURISDICTION
The Board has jurisdiction to hear and determine the issues in this
case and to render a decision and order pursuant to 26 M.R.S.A. 979-H
(1988).
POSITIONS OF THE PARTIES
The MSTA complains that the Bureau intended to intimidate the MSTA's
officers and members, and dampen their participation in protected union
activities, by instituting an internal affairs investigation against
Holmes, by implementing a policy requiring internal affairs investigations
of all grievances and by questioning MSTA president Heino regarding union
activities. The MSTA complains that the Bureau's actions produced the
intended effect and charges further that the reason offered by the Bureau
in explanation of each of the complained-of matters are pretextual.
In support of the latter contention the MSTA argues that if the Bureau had
suspected Holmes of colluding with the MSTA from the outset in the Pratt
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matter it certainly would have conducted an investigation contingent upon
Holmes' issuance of the step one response favorable to Pratt. Moreover,
the MSTA asserts that the Bureau had no purpose to coordinate commendatory
letters or other matters and has instituted IA investigations of grievances
solely to discourage both the filing of grievances and any testimony at
arbitration favorable to the MSTA. Finally, the MSTA asserts that the
timing of all of the complained-of events, occurring as they did "too close
to be coincidental," produced, in combination, an unlawful chilling effect
on the rights of employees.
In its opening remarks at the hearing the Bureau asserts that the
Board has no jurisdiction to hear a complaint by the MSTA which complains
of Bureau conduct with respect to supervisory unit employees represented
for the purposes of collective bargaining by the MSEA. The Bureau also
states that although events regarding the Michael Pratt discharge including
the grievance and arbitration are admissible as background evidence they
are barred by the limitations provisions of the State Employees Labor
Relations Act (Act). See 26 M.R.S.A. 979-H(2) (1988). The Bureau states
that IA's interviewing of Heino was designed and implemented in a manner
calculated to reveal facts necessary to the determination of whether
misconduct had occurred in Holmes' processing of the Pratt grievance, while
avoiding any appearance or implication that there was an attempt to ferret
out information regarding the MSTA's representation of Pratt.
FINDINGS OF FACT
Upon review of the entire record, the Board makes the following
findings of fact: The Maine Department of Public Safety's Bureau of Maine
State Police (Bureau) is the public employer, within the meaning of
26 M.R.S.A. 979-A(5) (1988), of Maine State Police Troopers, Corporals,
Sergeants, Lieutenants and Captains. The Maine State Troopers' Association
(MSTA) is the duly certified collective bargaining agent, within the
meaning of 26 M.R.S.A. 979-A(1) (1988), of the Bureau's permanent full-
time Troopers, Corporals and Sergeants. The Maine State Employees
Association (MSEA) is the duly certified collective bargaining agent of the
Bureau's Lieutenants and Captains. The MSTA and the Bureau were parties to
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collective bargaining agreements in effect during the periods November 19,
1986 through June 30, 1987, and October 22, 1987 through June 30, 1989.
The MSEA and the Bureau were parties to a collective bargaining agreement
effective during the period October 22, 1987 through June 30, 1989.
The Underlying Pratt Case
An understanding of the circumstances surrounding the termination and
grievance of Sergeant Michael Pratt are fundamental to consideration of
this case. Many of the pertinent facts relating to the grievance of Maine
State Police Sergeant Michael Pratt are set forth at pages one through five
of the February 7, 1989 order of the Kennebec County Superior Court in the
case of State of Maine Department of Public Safety v. Maine State Troopers
Association and Michael C. Pratt, No. CV-88-366 (Me. Super. Ct., Ken. Cty.,
Feb. 7, 1989), vacated, No. KEN 89-113 (Me. Dec. 29, 1989). We adopt those
portions of the Superior Court's facts, set forth immediately below, as
our own:
In late 1984, Pratt was assigned to a drug case in the Organized
Drug Unit involving an informant named Sharon Sargent (Sargent).
Based on Sargent's information, Pratt and his partner, Drug
Investigative Agent Kenneth MacMaster (MacMaster), obtained a
search warrant. The search of the premises led to the seizure of
drugs. Sometime after the arrest but prior to court proceedings,
Sargent called Pratt complaining of inadequate protection.
Pratt went to Bangor and discussed this with Sargent. After
meeting at the Bangor Motor Inn, Pratt took Sargent to his room
at the Koala Inn where they had a sexual encounter. Pratt
remained in Bangor to work the next day.
On April 2, 1986, a suppression hearing was held in the drug
case. When Pratt was called to testify, the following colloquy
occurred:
Q How well do you know Sharon Sargent?
A Not very well. This is my only dealing with her.
Q If she said that she was personal friends with you,
would she be telling the truth?
A That could be her opinion, I suppose, sir.
Q Well, did you have other than a professional
relationship with Sharon Sargent
. . .
A I did not.
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Q So if she suggested otherwise she wouldn't be
telling the truth?
A That's right; that's right.
In January 1987, MacMaster learned that the defense attorney in
the drug case was going to have Sargent testify as to the sexual
encounter. MacMaster notified his superiors who began investi-
gating Pratt concerning a possible perjury violation. On April 1,
1987, Captain Wilson of the State Police completed the investiga-
tion concluding that the question posed at the suppression
hearing was somewhat ambiguous and that he believed Pratt would
have answered truthfully if asked directly whether he had engaged
in sexual relations with Sargent. However, Wilson also reported
that the incident should be examined further concerning Pratt's
poor judgment. After reviewing the report, Chief of Police
Andrew Demers dismissed Pratt stating that he had 1) been
sexually involved with a potential witness; 2) failed to inform
the prosecution of his relationship with the witness; 3) testi-
fied in a less than truthful manner; 4) injured the reputation
of the Maine State Police; 5) demonstrated poor judgment and
violated Policy General Order #1. Chief Demers gave Pratt until
April 10, 1987 to provide reasons why he should not proceed with
the dismissal. Pratt did not provide Chief Demers with any
reasons and was effectively dismissed on April 10, 1987.
On April 10, 1987, Pratt contacted Lt. Douglas Holmes, his
commanding officer, and informed him that he was grieving his
dismissal under the employment contract. Holmes investigated the
dismissal and rendered a Step 1 grievance response stating that
1) the investigation in the drug case was completed at the time
of the sexual encounter with Sargent; 2) all the information
which would have been used to obtain a conviction had been
relayed to the prosecutor; 3) the contact occurred while Pratt
was off duty; 4) the contact was between two willing single
adults; 5) Pratt committed "no criminal violation"; 6) he also
believed that Pratt would have answered truthfully if asked
directly under oath whether he had been sexually involved with
Sargent; 7) if poor judgment was involved it should not require
dismissal based on Pratt's 14 years of outstanding service.
Holmes concluded by writing "it is my opinion that you should be
reinstated with full backpay." A copy of Holmes' opinion went to
Pratt on April 15th and on April 16th to Chief Demers.
Apparently five minutes after Chief Demers read the letter, Pratt
reported for duty. Chief Demers informed Pratt that he was still
dismissed and was not reinstated.
On April 17, 1987, Chief Demers ordered Lt. Holmes to ini-
tial a previously prepared clarification of his grievance
response. The clarification stated:
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In my step 1 response to you dated April 15, 1987,
I stated my opinion with respect to your reinstate-
ment. I must clarify that this was my individual
opinion only, and is contrary to and does not
represent the view or position of the Bureau or the
Maine State Police.
Furthermore, I am not authorized to take such an
action and my initial memo does not, in fact, order
reinstatement. Therefore, you are still effec-
tively dismissed.
Since I do not have the authority to grant you the
remedy you have requested, namely, reinstatement,
you are therefore, authorized to proceed to the
next step without further delay.
The parties voluntarily bypassed the second step of the grievance
process requiring review of the decision by the Chief of Police.
In the third step, Mr. Larson of the Governor's Office of
Employee Relations, held a hearing and approved the Chief's deci-
sion. The parties then submitted to the arbitrator whether Pratt
had been dismissed with just cause. Both parties agree that the
arbitrator was to consider whether the Step 1 response was
binding on the State in determining just cause.
The arbitrator decided only whether the Step 1 response was
binding on the State and did not reach the issue as to whether
or not the State had just cause to fire Pratt. Although the
State argues that the Chief had the sole authority to discharge
employees, the arbitrator justified his actions by concluding
that Step 1 of the grievance process was not merely advisory but
binding and final. Therefore, the arbitrator concluded that he,
in his position as arbitrator, was bound by Lt. Holmes' Step 1
response and that Pratt should be reinstated.
[Footnotes omitted.]
In its decision vacating the Superior Court's order and remanding with
instructions to confirm the arbitrator's award the Supreme Court adopted
all but the last paragraph (and the immediately preceding sentence) of the
foregoing facts.
The initial order to Captain Wilson of IA to investigate Pratt came
from Colonel Alan Weeks and Lt. Colonel John Clark, both now retired.
Colonel Demers, a twenty-one-year veteran of the Bureau, became Chief on
March 16, 1987. Wilson exercised substantial discretion in his IA role.
It was within Wilson's discretion to refer to the Chief those matters in
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which suspension or dismissal might be appropriate or to refer such
matters, with a recommendation for lesser discipline, to troop level
commanders instead. On April 1, 1987, Wilson and Lt. Love gave Demers the
report of the IA investigation of Pratt. On April 2, 1987, Holmes,
Department of Public Safety Personnel Manager Mather, Holmes' Commanding
Officer, Captain Graves, and IA representative Lt. Love met with Wilson and
the Colonel. At that meeting Demers announced that he had read the entire
Pratt IA report, had reflected on it all night and had made his decision
that Pratt would be dismissed from State service. Holmes, alone, expressed
concern at that meeting about the other attendees' apparently favorable
consideration of the possible suspension or dismissal of Pratt in response
to the investigative findings. Demers sent Pratt's termination letter the
next day.
Upon inquiry concerning whether he needed to grant a disciplinary
board hearing to Pratt in response to the MSTA's April 4, 1987 request,
Mather told Demers that "[t]he purpose of the board was a fact-finding
mission, and that since the facts were all known in this partiuclar matter
it wasn't necessary to hold a board." Demers anticipated at the time that
he denied Heino's disciplinary board request that a grievance would sub-
sequently be filed.
Holmes is a twenty-year veteran of the Bureau and was a member of the
MSTA bargaining unit from its inception until he was promoted to the rank
of Lieutenant in 1985. Holmes is now a member of the supervisory unit
represented by MSEA. Holmes is assigned to the Criminal Investigation
Division of the Special Investigations Section. The Governor's Security is
a component of Executive Security for which Special Investigations is
responsible. Holmes was, at the time of Demers' termination letter to
Pratt, Pratt's immediate supervisor. Under the parties' contractual
grievance procedure, at step one a grievance is heard and decided by the
immediate supervisor, in step two by the Chief, in step three by Employee
Relations and finally by a neutral arbitrator. Pratt's grievance of the
Demers' termination was made by phone to Holmes on April 10, 1987.
Holmes saw Demers' termination letter to Pratt sometime prior to the
fifteenth of April. Holmes went to Captain Wilson's office in Hallowell
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and reviewed the Pratt IA investigative report prior to rendering his step
one response. There were no standing instructions or general orders with
regard to supervisory procedures or responses to step one grievances at the
time Holmes issued his response to Pratt. Holmes composed his response to
Pratt's grievance without assistance and had a friend, not employed by the
State, type it up. Holmes had access to two Bureau secretaries at that
time. Holmes responded to Pratt on April 15, 1987, and personally deliv-
ered a copy of the response to Demers on the afternoon of April 16, 1987.
Holmes informed Demers on delivery that the sealed envelope contained a
step one response and asked Demers not to take it personally. Heino and
Pratt appeared at Demers' office five minutes later to report Pratt ready
to return to work. The Bureau suspected, based on the close timing of the
Pratt and Heino visit, following Holmes' 2:45 p.m. delivery of the first
step response that the Bureau was being unspecifically "set-up."
On April 17, 1987 Demers inquired of Mather whether he could take any
disciplinary action against Holmes. Demers met with Holmes that same day,
lectured him on his lack of loyalty to the administration and gave him a
memo advising him that it was not his place to hire, fire or reinstate
employees. The Chief did not question Holmes about the promulgation of the
step one response at that time. Prior to Demers' meeting with Holmes,
Mather personally composed a retraction letter for Holmes' signature and a
cover letter from Demers to Troubh which stated that Holmes had been
ordered to sign the retraction letter. Holmes' retraction letter was given
to Pratt within the period contractually established for a step one
response. The MSTA contract does not refer to step one supervisors'
"consultation with supervisors with authority to resolve the grievance" as
does the MSEA supervisory unit contract. The MSTA procedure merely
requires that the grievant's "commanding officer shall provide a response."
The MSTA contract does not forbid the exercise of command influence in
first step grievance responses and does not expressly give preclusive
effect to an initial response.
The Pratt matter was the first instance, in Mather's recollection, in
which a step one grievance was filed for a serious disciplinary matter.
The Pratt matter was also the first case in which a discipinary board
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request was denied. On Monday, April 20, 1987, Demers asked Holmes and
Graves to his office. Graves indicated to Demers that he was not aware of
Holmes' action on the grievance until that day. Holmes made no comment
about this statement by Graves to Demers.
During the arbitration hearing conducted on June 14, 28 and 29, 1989,
Holmes testified at the request of the MSTA. Holmes' testimony was
favorable to Pratt. On July 19, 1988, Holmes was called to Lt. Colonel
Cote's office where, in the presence of Demers, Cote, Gross and Wilson,
Holmes was notified that an IA investigation had been lodged against him.
Holmes was investigated under the provisions of the MSEA supervisory ser-
vices contract's complaints and investigations article, Article 12, Section
B. During the IA investigation Holmes was represented by the MSEA.
Gross interviewed Heino, Holmes and Lt. Graves. Holmes was interviewed on
August 4, 1988. Although Gross normally conducts interviews at his office,
during the Holmes investigation he interviewed Heino at Bureau Headquarters
because of the proximity of Holmes' office to his. Two MSEA represen-
tatives were present at Holmes' interview with Gross. There is no evidence
that Holmes was asked questions which would have constituted improper
indirect surveillance of any proper internal union matters. Holmes has not
been disciplined or discriminated against as a result of his handling of
the Pratt grievance. On August 16, 1988, the MSEA filed a grievance with
respect to the investigation of Holmes. On August 29, 1988, the MSEA
appealed the Bureau's initial denial of the Holmes' grievance. At the time
of the Board hearing the MSEA and Holmes had not jointly determined whether
to pursue Holmes' grievance further. The step three hearing before the
Bureau of Employee Relations has been cancelled. Other than the Pratt
matter, Holmes has never been notified of an ongoing investigation of a
subordinate. Holmes was never specifically notified of exactly what in his
testimony justified an IA investigation. Holmes was informed by memorandum
on October 27, 1988, that the IA investigation had been closed as "not
sustained."
Skolfield's Initiation of the Holmes IA Investigation
Lt. Colonel Alfred Skolfield, a sixteen-year veteran of the Bureau,
has served as the Bureau's administrative Deputy Chief since April of 1987.
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The decision to terminate Pratt had already been made on the date Skolfield
was appointed Deputy Chief. Skolfield was serving as a Deputy Chief in
Augusta on the date of the filing of the step one response but was not at
that time involved in any of the matters surrounding the grievance.
Lieutenant Colonel Cote is the operational or line Deputy Chief. Holmes'
supervisory chain of command progresses through Graves to Skolfield.
Skolfield attended the Pratt arbitration hearing in June of 1988, as an
observer. At the Pratt arbitration Holmes testified vaguely to the effect
that he had informed Captain Graves, a superior officer, that Pratt had
filed a grievance with him. Based on Skolfield's perception that Holmes
had testified inconsistently on cross-examination and under examination by
the arbitrator, on the whole, respecting whether he had notified any of his
superiors prior to filing his step one response, Skolfield deduced that if
Holmes hadn't notified a superior he may have intentionally failed to
notify the administration of the pendency of the grievance. When Skolfield
heard Holmes testify at the arbitration proceeding that he had informed
Graves of what his response would be prior to making it, Skolfield could
reasonably have drawn the conclusion that Holmes was undermining the
Employer's arbitration position by giving testimony which tended to
establish that his supervisory chain of command knew of his intended
response before it was actually made.
As the result of an off-the-record conversation with Troubh at the
arbitration proceedings, in which Skolfield asserts that Troubh indicated
that the wording of the step one response was his, Skolfield concluded that
it was possible that Troubh had wrongfully orchestrated Holmes' step one
grievance response. Troubh informed Mather at the arbitration hearing
that he had not talked directly with Holmes. Skolfield suspected, however,
that Troubh may have communicated with Holmes through Pratt. Demers was
informed by Skolfield that he "had witnesses contradictory statements and
there was a possibility that misconduct had occurred involving Lieutenant
Holmes." Having thus been informed Demers authorized Skolfield "to do
whatever he had to do to get to the bottom of it," although Demers didn't
"really know what it was" that Skolfield was referring to. Demers turned
the matter over to his Lt. Colonels and to IA in anticipation of making a
final decision in the matter as a result of their findings. The July 19,
1988 notification to Holmes of the initiation and nature of the IA investi-
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gation of him states, in pertinent part:
As a result of recent testimony in an arbitration hearing
involving Michael Pratt, there is probable cause to believe that
misconduct occurred in your handling of Michael Pratt's Step I
Grievance in April 1987. Such misconduct involves an abrogation
of your duties as an officer on the Maine State Police and your
attempt to undermine and usurp the authority of the Chief of the
Maine State Police in violation of the rules and operating pro-
cedures of the Maine State Police.
Skolfield was primarily responsible for the IA investigation although
Lieutenant Gross actually carried out the investigation. Skolfield
instructed Gross to coordinate his questioning so as to avoid trangressing
in the area of confidential internal MSTA affairs. The Bureau, at Mather's
suggestion, obtained advice from the Department of Administration's Bureau
of Employee Relations regarding subjects which Heino and Beal could and
couldn't be questioned about.
The Interviewing of Sgt. Heino
Michael Charles Heino, a Patrol Sergeant with Troop F in Houlton and a
fourteen-year veteran of the Maine State Police, was president of the MSTA
for the two-year period immediately preceding June 30, 1987. Heino had no
involvment with the IA investigation underlying the termination of Michael
Pratt, and possessed only limited understanding of the nature of the
investigation. The MSTA collective bargaining agreement in effect during
the Pratt investigation contains a provision specifying the confidentiality
of IA investigations. Within the applicable twenty-four hour notice
period, commenced when Pratt was notified that he would be dismissed,
Heino, in his MSTA capacity, personally delivered Pratt's handwritten
letter requesting a disciplinary board to Demers' home on a Saturday
morning. Heino had no communication with Holmes regarding Holmes' response
to Pratt's grievance after delivering the request and still had had no such
communication with Holmes when, at Troubh's direction, Heino accompanied
Pratt on April 16, 1987, to Demers' office where they presented Holmes'
step one grievance response and notified Demers that Pratt was reporting
for work. Heino had not discussed the step one response with Pratt prior
to Pratt's arrival in his office that day, although he did know Pratt had
grieved the dismissal. Demers refused Pratt's request to return to work,
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whereupon Heino and Pratt left.
It was Heino's opinion that the effect of the Holmes step one response
was to reinstate Pratt. Heino had been newly-promoted to the rank of
Sergeant and had just transferred to Troop F when he was directed through
his troop commander, Lieutenant Dow, to meet Lieutenant Larry Gross on
August 4, 1988, at headquarters in Augusta, Maine. Gross was the immediate
subordinate of IA Director Wilson and was the person who at the time was
conducting all IA interviews and investigations. Heino was not formally
given a "direct order" to appear at the investigation but was directed to
appear in a manner sufficient under the parties' collective bargaining
agreement to require his attendance on penalty of'disciplinary action.
Heino assumed, correctly, that if he failed to comply he would receive a
direct order to attend the interview. There had been no previous instances
of MSTA officials being questioned relative to the handling of or par-
ticipation in grievance matters.
Immediately prior to the August 4, 1988 interview, Heino met outside
headquarters with MSTA attorney Troubh. They were met shortly thereafter
by Gross at the entrance to the building and were escorted to an office
where, in the presence of Troubh, Gross and John Shaw, a sergeant with
internal affairs, Heino was questioned. Troubh objected to the questioning
of Heino concerning any matter, both before and after the questioning.
Heino was unaware up to the actual beginning of the interview that it was
being conducted as part of an IA investigation of Holmes and he was con-
cerned with the misimpressions that those at his new assignment might have
of his being questioned by IA. Moreover, upon arriving at headquarters,
Heino felt further stigmatized by being called before the IA investigator
in the company of MSTA counsel. At the beginning of the interview Heino
was apprised in the following manner by Gross that his appearance was only
as that of a witness and was notified of the limits of the testimony which
he was to observe:
This is a very sensitive Internal Affairs investigation regarding
possible misconduct on the part of Lt. Douglas Holmes reference
his processing of the Step 1 Grievance of Michael Pratt. You are
being interviewed as a witness only and no disciplinary action is
being investigated or contemplated with regard to you, O.K.? I
will ask no questions regarding any conversations between you and
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Michael Pratt, Attorney Troubh, any other attorneys in Mr. Troubh's
office or any representatives of the M.S.T.A., do you understand
that?
. . . .
I also do not want you to volunteer any information whatsoever
regarding conversations you have had while acting as a represen-
tative of the M.S.T.A. with the above-mentioned persons being,
ah, Michael Pratt, Attorney Troubh, any attorneys from his office
or any representative of the M.S.T.A., O.K.?
Similar warnings were given at various points in the questioning. If Heino
had been under investigation at that time the collective bargaining agree-
ment would have required that he be specifically so notified. Heino was
questioned in the interview about communications he may have had with
Holmes respecting "April 16 or the processing of the Mike Pratt grievance,"
and was not asked "about any communications with Michael Pratt or the
Union's [MSTA] representation of Michael Pratt." Heino was not asked about
any protected MSTA activities and was adequately warned not to comment on
such. Heino was not intimidated by the questions he was asked and
understood leaving the interview that he was not under investigation.
Heino has not been threatened with reprisals or discriminated against for
delivering the disciplinary board request, for accompanying Pratt on his
attempt to report for duty, or for any other activity related to the Pratt
discharge or the Holmes investigation.
Heino believes he adequately discharged his representational duties
with regard to Pratt as MSTA president; however, as a result of having been
questioned in the Holmes IA proceeding, Heino has decided not to get
involved in MSTA affairs in the future. More specifically, Heino credibly
states:
I don't believe I'd get involved again. Honestly, in good faith,
I did what I was supposed to do as far as representing the mem-
bers of the Union, and then to be called for an interview and get
involved in something that's over and done with, basically, as
far as I was concerned, was kind of--it's made me think twice,
and I won't run for president or be a troop rep or anything like
that again. I just want to wash my hands of it.
Heino has continued to be an MSTA member since his resignation as president
but has held no other office with MSTA since that time.
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Although the Bureau also intended to interview both Troubh and Beal,
upon meeting resistance by the MSTA the Bureau did not press further.
No retaliatory action was taken as a result of the MSTA's resistance.
Accordingly, we find no violation in the Bureau's unsuccessful attempt to
question Beal and Troubh.
Bureau Policy of IA Involvement in Grievances
Pursuant to its Policy No. 90, since January 30, 1985, the Bureau's IA
division has been tasked to "perform internal investigations concerning
allegations of serious misconduct on the part of members of the Maine State
Police." Policy No. 90 specifies that "[s]erious misconduct shall include,
but not be limited to, such conduct which, if substantiated, could result
in suspension or dismissal of the involved member." Other complaints are
investigated at the troop level by a supervisor. The IA Division has also
been required pursuant to Policy No. 90 to "maintain a system of files
pertaining to Bureau activities, [for]. . . use in monitoring division
operations and case load assignments, [and] . . . negative trends in order
that minimal corrective measures may be taken before such trends escalate
into more serious matters."
On July 14, 1988, in an effort to stem further erosion of his
authority over disciplinary matters within the Bureau, Demers issued a
memorandum directed to "All Commissioned Officers" which states:
In an attempt to remove any possible confusion, effective
immediately, when a Division Commander and/or Troop Commander is
notified of a Step 1 Grievance either under the MSTA or MSEA
contracts, he/she shall immediately notify the Chief and Deputy
Chiefs through the Division of Internal Affairs.
In addition, the Division Commander and/or Troop Commander
involved will confer with the Chief and/or Deputy Chiefs prior to
the response to any Step 1 Grievance.
The memo was drafted by Skolfield for Demers' signature. Demers intended
by his memo to effectuate the use of internal affairs' existing record-
keeping system as a repository and tracking system for grievances, although
Demers also anticipated that internal affairs would investigate grievances.
Demers was once notified that he was the subject of an internal affairs
investigation and, like "everyone is," was "worried as a result of being
-15-
involved in an internal affairs investigation."
The combined effect of the issuance of that memo and the initiation of
the internal affairs investigation against him has made Holmes skeptical
and wary of ruling in favor of grievants at step one. Holmes decided to
retire from the Bureau as a direct result of the internal affairs
investigation.
Gross was instructed by Skolfield at the time of the issuance of the
memo to "All Commissioned Officers" that his role "was to just be a
clearinghouse for any grievance that was filed and bring it to the atten-
tion of the colonels and just to keep record of it for consistency reasons.
IA presently keeps track of all grievances, commendatory letters and
lawsuits filed with or against the Bureau. The present grievance function
of internal affairs is to investigate and to provide consistent disposition
of both non-disciplinary and disciplinary grievances.
In calendar year 1988 Internal Affairs conducted 58 investigations;
another 104 investigations were conducted at troop level. Twenty-eight
percent of those complaints resulted in a sustained finding and action
taken against an employee. Although the Department of Administration's
Bureau of Employee Relations keeps records of arbitrations and grievances
which have gone to arbitration, there is no evidence that they maintain
records respecting grievances which have not progressed to the arbitration
stage.
There is no allegation or evidence of anti-union animus on the part of
the Bureau outside the matters specifically complained of in this case.
There is no evidence that any unit member other than Heino felt interfered
with, restrained or coerced in the exercise of rights under the Act as a
result of any of the complained-of acts.
DISCUSSION
There are four issues which must be resolved in this matter. They
are, in the order in which they are subsequently discussed: 1) Does the
Board have jurisdiction to consider whether the Bureau's IA investigation
of MSEA supervisory unit member Holmes has interfered with, restrained or
-16-
coerced MSTA unit members in the exercise of protected contract grievance
resolution rights; 2) If so, does the Bureau's IA investigation of Holmes
violate the Act because of its impact on MSTA unit employees; 3) Did the IA
questioning of Heino and the requests to question Beal and Troubh consti-
tute unlawful acts; 4) Does the Bureau's policy of referring all contract
grievance matters to IA for investigation and recordation have an imper-
missibly chilling effect on the grievance rights of MSTA unit employees.
As is more fully set forth below we answer the first and last of these
issues in the affirmative and find a violation in the Bureau's policy of
the referral of all contract grievance matters to IA.
The first issue for determination is whether the Board has jurisdiction
to consider whether the Bureau' s IA investigation of Holmes, a supervisory
unit employee not represented by MSTA, constitutes unlawful interference,
restraint or coercion with respect to MSTA unit members. We conclude that
we have such jurisdiction. In a previous case the Board interpreted the
provisions of the Municipal Act, whose pertinent provisions are identical
in all respects germane to the instant inquiry, to apply, in limited cir-
cumstances, to permit the Board to entertain charges of unlawful discrimi-
nation against employees expressly excluded from the coverages ofthe Act.
We find the rationale in that case even more compelling in the situation of
covered employees, who, like Holmes in relation to the MSTA, are merely
included in a bargaining unit different from that represented by the
complaining party. The discussion of the Board's jurisdiction to hear
complaints involving acts respecting non-covered employees, set forth at
pages three through five of the slip opinion in the case styled Council 74,
AFSCME v. Richardson, No. 84-04 (Me.L.R.B. Nov. 8, 1983), is instructive
and bears repeating here:
The first question we consider is whether the Labor
Relations Board can ever within the limits of the authority set
forth in the Municipal Public Employees Labor Relations Act, 26
M.R.S.A Section 961 et seq. (Act), proceed to hear a complaint
which alleges that discriminatory actions were taken against non-
public employees. We hold that in limited situations it can. In
resolving this question we look to the case law dealing with an
analogous situation under the National Labor Relations Act (NLRA)
- that involving the discipline or discharge of supervisors.
Just as probationary and on-call employees are expressly excluded
from coverage of our Act, so too are supervisors expressly
-17-
excluded from coverage of the NLRA. 29 U.S.C.A. Section 152(3).
Just as probationary and on-call employees in Maine are not pro-
tected by the state's labor relations statutes, then, neither are
supervisors protected by the NLRA. Since excluded employees are
not protected by the labor relations statutes, the general rule
is that discriminatory actions by an employer against excluded
employees are not violations of labor law.
This lack of statutory protection does not mean that the
National Labor Relations Board is powerless to act in certain
circumstances involving discipline or discharge of a supervisor,
however:
"There are limited exceptions to the rule that
employer conduct towards supervisors does not violate
the Act. These exceptions protect [covered] employees'
right to have the privileges secured by the Act vin-
dicated through the administrative procedures of the
Board.' . . . The exceptions have been construed
narrowly." (citations omitted).
NLRB v. Nevis Industries, Inc., 647 F.2d 905, 910 (9th Cir. 1981);
see also Automobile Salesmen's Union v. NLRB, 711 F.2d 303, 386
D.C. Cir. 1983). The rationale for permitting these limited
exceptions is as follows:
"Though the Board'concededly has no authority, sta-
tutory or otherwise, to reinstate supervisors as
'employees' to redress their private grievance and
penalize respondent, we see no reason why the Board, in
the exercise of its statutory discretion, does not have
the same remedial power to redress acts of indirect
interference and restraint of ordinary employees
through discharge of supervisors, as it admittedly has
to redress acts of direct interference and restraint
with the rights of the same employees . . . "
NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209, 217 (5th
Cir. 1954). The limited circumstances in which the National
Labor Relations Board can remedy discriminatory actions against
supervisors are commonly identified by the courts as occurring:
1) when a supervisor is disciplined for testifying
before the Board or during the processing of an
employee's grievance,
2) when a supervisor is disciplined for refusing to
commit an unfair labor practice, and
3) when a supervisor who hired his own crew is
discharged as a pretext for terminating his
pro-union crew.
-18-
See, e.g., Automobile Salemen's Union, 711 F.2d at 386; NLRB v.
Nevis Industries, Inc., 647 F.2d at 910. The common thread
running through these exceptions is that the action taken against
a supervisor under these circumstances may be so prejudical to
covered employees' rights as to warrant NLRB remedial action to
protect these rights.
We think these limited exceptions apply with equal force to
public sector cases in Maine which involve discriminatory action
by the employer against excluded employees. As previously noted,
probationary and on-call employees as well as the other employees
excluded by 26 M.R.S.A. Section 962(6) (1974 & Supp. 1982) have
the same status under our Act as supervisors do under the NLRA.
Actions against excluded employees, particularly in the cir-
cumstances outlined above, can be nearly as coercive to the pro-
tected rights of covered employees as if the actions were taken
directly against the protected employees themselves. Certainly
we should not allow an employer to accomplish something through
the discipline or discharge of excluded employees which he could
not lawfully accomplish by the same actions against covered
employees. We therefore hold that this agency does have juris-
diction to hear and decide cases involving excluded employees
when the complaint alleges facts which might fall within one of
the limited exceptions noted above.
See also M.S.E.A. v. State, No. 81-06, slip op. at 8 (Me.L.R.B. Apr. 28, 1981).
Having determined that we have jurisdiction to entertain the question
of whether the Bureau's investigation of Holmes was unlawful we shall now
resolve that question. The MSTA argues, in effect, that if the Bureau is
permitted to discriminate with impunity against non-unit supervisors who
have testified favorably to grievants at arbitration the contractually
secured grievance and arbitration rights of unit employees will be
seriously undermined. We agree. Action against a supervisor based solely
on the factual favorability of testimony, as opposed to action based on its
perjurious or hostile nature, is highly undesirable. There are, in fact,
few courses of action which would have a more profound and undesirable an
effect on the stability of labor relations. A viable grievance arbitration
procedure is sine qua non of any bargaining relationship in which a
contract has been reached. We do not, however, find such a course of
action to have occurred in the instant case.
The record demonstrates that Demers was convinced of both the
necessity of Pratt's discharge and the necessity of sustaining his decision
to terminate Pratt. The former decision kept Demers up at night in the
-19-
making and once made the Chief refused any possibility of reversal:
insisting that Holmes involuntarily issue a retraction of his initial
response, addressing Holmes in a raised voice concerning his place in the
scheme of things even after he had executed the retraction, and denying,
for the first time in the Bureau's history, a request for the elaborately
defined contractual disciplinary board procedures.
Holmes knew well how Demers felt on the Pratt issue, he had been the
only voice of moderation in the otherwise apparently monolithic group among
which Pratt's upcoming discipline was discussed, and he had read Demers'
termination letter, which was penned in less than equivocal terms.
Holmes' response, on the other hand, not only disagreed with the degree of
Demers' disciplinary imposition but totally rebuked it. The effect of
Holmes' finding that not only less, but that no, discipline was warranted,
constitutes a written finding by a subordinate officer that the Chief's
decision was completely unfounded.
The timing of Holmes' notification to the Chief on the afternoon of
the day after delivery of the response to Pratt and the nearly simultaneous
appearance of Pratt and Heino, presenting Pratt ready for work, seem to
have been the factors which precipitated a suspicion by the Bureau that
Holmes' actions, beyond being technically improper, may also have been
taken in collusion with the MSTA. Timing alone may have been insufficient,
in the Bureau's estimation, to launch an investigation at that time.
However, after the arbitration hearing Skolfield informed the Chief that
Holmes had testified inconsistently. This, coupled with the further suspi-
cion of collusion based on Troubh's statement that the wording on the
response was his, was apparently sufficient, in light of the new testimony
by Holmes, at arbitration, that his supervisory chain of command had been
notified prior to the issuance of the response, to arouse the Bureau's pre-
vious suspicion that Holmes and the MSTA were acting in concert to subvert
Demers' decision regarding Pratt. It is not surprising that after being so
informed by Skolfield the Chief authorized a suggested IA investigation.
There is no evidence of anti-union animus existing prior to the
July 14, 1988 memorandum concerning IA involvement in grievances and the
July 19, 1988 notification of investigation of Holmes. With the exception
-20-
of being questioned as the subject of, or as a witness in, the Holmes IA
investigation, no MSTA or MSEA member has been disciplined or otherwise
discriminated against as a result of Holmes' testimony. Any animus which
the record reveals is, in our opinion, attributable to that which Demers
bore for Holmes based upon Holmes' contravention of Demers'dismissal of
Pratt.
Having concluded that the institution of the IA investigation was not
intended to interfere with, restrain or coerce MSTA unit employees it is
necessary to determine whether the IA investigation nontheless foreseeably
had that effect. We shall defer consideration of this issue until our
later discussion of whether the combined actions complained of here consti-
tute unlawful interference, restraint or coercion.
The Questioning of Heino
The Board has adopted the analysis set forth by the National Labor
Relations Board in Strucknes Construction Co., 165 N.L.R.B. 1062 (1967),
for use in the examination of complaints involving allegations of employee
polling, see Council 74, AFSCME v. Town of Millinocket, No. 80-13, slip op.
at 5 (Me.L.R.B. Mar. 13, 1980), Teamsters Local Union No. 48 v. City of
Waterville, No. 78-28 (Me.L.R.B. July 24, 1978), and has adopted a totality
of the circumstances standard for the analysis of charges of isolated
employee questioning concerning union preference. See Teamsters Local
Union No. 48 v. City of Waterville, No. 78-10 (Me.L.R.B. June 29, 1979).
We have considered at length the MSTA's suggestion that the analysis set
forth by the National Board in the case Johnnie's Poultry Co., 146 NLRB
770, 774-75 (1964), should be applied to the facts of the instant case to
determine whether the interrogation of Heino violates the State Act. We
find the National Board's analysis well reasoned and would apply it in a
case involving employer interrogation of employees concerning statutorily
guaranteed rights, where a legitimate cause--such as the preparation of a
charge of or defense to allegations of the commission of prohibited
practices--made such interrogation necessary. We do not, however, find
application of the Johnnie's Poultry analysis necessary in the facts of
this case because the Bureau's questions to Heino related solely to
-21-
suspected activities which are not protected by the Act.
The MSTA alleges, in effect, that Heino's involvement as an MSTA
representative in the Pratt grievance is sufficient to shield Heino from
all questioning by the Bureau regarding any aspect of Heino's activities
related to that grievance. We find no support for such blanket immunity.
We find that the Bureau's questioning of Heino was based on the Bureau's
legitimate interest in determining whether Holmes had dutifully represented
the Bureau's interests at step one of the contractual grievance procedure.
Even assuming, arguendo, that the Bureau had bargained away the ability to
dictate Holmes' first step response, the Bureau would still possess a
justifiable interest in assuring that Holmes' response was actually
Holmes', and not the MSTA'S. The applicable MSTA collective bargaining
agreement outlines step one of the grievance arbitration procedures as
follows:
2.1 Step 1 An employee shall present his grievance orally
to his Commanding Officer within thirty (30) calendar days of the
act or omission which gives rise to the grievance, or within
forty-five (45) calendar days from the date when the grievant
should reasonably have been expected to become aware of the event
which gave rise to the grievance. The Commanding Officer shall
provide a response to the dispute within seven (7) calendar days
from the date the dispute was presented.
This provision does not specify any protected union activity other than the
actual filing of a grievance with the grievant's Commanding Officer. The
MSTA has not established that any questions asked of Heino impermissibly
concerned that or any other related protected activity.
Moreover, the self-imposed limits which the Bureau observed in the
questioning of Heino, with regard to Holmes' suspected improper dealings,
were nearly as comprehensive as those set forth in Johnnie's Poultry.
There the National Board opined:
In allowing an employer the privilege of ascertaining the
necessary facts from employees in these given circumstances, the
Board and courts have established specific safeguards designed to
minimize the coercive impact of such employer interrogation.
Thus, the employer must communicate to the employee the purpose
of the questioning, assure him that no reprisal will take place,
and obtain his participation on a voluntary basis; the
questioning must occur in a context free from employer hostility
-22-
to union organization and must not be itself coercive in nature;
and the questions must not exceed the necessities of the legiti-
mate purpose by prying into other union matters, eliciting in
formation concerning an employee's subjective state of mind, or
otherwise interfering with the statutory rights of employees.
When an employer transgresses the boundaries of these safeguards,
he loses the benefits of the privilege. (footnotes omitted)
Johnnie's Poultry, 146 NLRB 770, 775 (1964).
The facts in the instant case indicate that the Bureau sufficiently indi-
cated to Heino the purpose of the questioning and apprised him of his
status merely as a witness with regard to Holmes' conduct in handling the
Pratt grievance. While the MSTA asserts that it objected to Heino's par-
ticipation in the questioning and that it was not, therefore, voluntary,
neither the MSTA nor Heino insisted that either a direct order to par-
ticipate be given, or that the contract's pertinent provisions be expressly
invoked prior to the interview, to clearly establish its assertedly invol-
untary nature. Finally, neither the context of the questioning nor the
actual questions themselves can reasonably be construed as coercive or
hostile. In fact, the extensive and repeated prefatory statements made by
the examiner during the course of the interview were more than sufficient
to establish the Bureau's desire that Heino not, even inadvertently,
volunteer information regarding any protected union activity. Under these
circumstances we find the interview of Heino was not in any respect viola-
tive.
The Use of IA in Grievance Matters
The Bureau alleges a longstanding intention to centralize, in IA, the
Bureau's recordkeeping and consistency control functions, regarding com-
mendatory letters, disciplinary grievance matters and suits such as tort
claims involving the Bureau. The Bureau alleges that the IA division's
changed duties are primariy attributable to the effectuation of that long-
standing desire for centralization. The Bureau also alleges that IA's
well-established recordkeeping functions lend themselves to the task of
coordinating the above-mentioned responsibilities of the Bureau with
respect to the Bureau's geographically well-dispersed operations. The
Bureau asserts that it is within its contractual managerial rights to use
-23-
its existing investigatory arm to investigate collective bargaining
grievance matters. The Bureau suggests that IA's record for both confiden-
tiality and evenhandedness in investigations supports its decision in this
regard.
The MSTA, on the other hand, argues that the Bureau of Employee
Relations already exists, inter alia, to coordinate the Bureau's grievance
arbitration handling and to assure consistency in the Bureau's dealings
with its organized employees, and that the initiation of IA's role in
grievance matters was purposefully done to chill the exercise of grievance
rights of MSTA unit members. The MSTA argues that this change in the scope
of IA's involvement was initiated along with the IA investigation of Holmes
and the questioning of Heino to telegraph the Bureau's dissatisfaction with
Holmes' testimony favorable to MSTA and to discourage generally, employee
access to the grievance arbitration procedure.
Although Skolfield and Demers testified that the requirement that all
grievances be routed through internal affairs was a final step in a system-
atic centralization of information needed by management for consistency in
commendatory letters, the coordination of tort and other legal proceedings,
in addition to consistency in grievance handling and adjustment, there is
no evidence that any member of management was ever apprised of a require-
ment to notify internal affairs of anything other than the filing of
grievances. Moreover, the record establishes that the role of internal
affairs in discipline and other contractual grievance handling is to
include investigatory functions as well as mere recordation and the
assurance of consistency in resolutions. Accordingly, we find, based on
the record as a whole, that the requirement was initiated primarily for
both the investigation of grievances and management control of lower level
grievance responses.
The MSTA alleges that the Bureau's interviewing of Heino, its IA
investigation of Holmes and the initiation of IA grievance handling in the
circumstances of this case have had the combined effect of interfering with
the rights of unit members in violation of 26 M.R.S.A. 979-C(1)(A)
(1988). We have often discussed, as follows, the well-established test
which we employ, with the Law Court's approval, see MSEA v. State
Development Office, 499 A.2d 165, 169 (Me. 1985), in considering complaints
-24
of violation of 26 M.R.S.A. 979-C(1)(A) (1988):
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.
Kittery Employees Association v. Strahl, No. 86-16, slip op. at 7 (Me.L.R.B.
Aug. 6, 1986). The record does not establish that any unit member other
than Heino knew that he was questioned by IA or what subjects he was
questioned about. Moreover, Heino himself had no knowledge that Holmes was
being investigated prior to the interview. Therefore, if any MSTA member
was aware of the existence or nature of the investigation, it may reasonably
be assumed that MSTA itself was the source of the information.
The record fails to indicate whether any grievance matter has been
referred to IA for investigation since the initiation of the increased IA
responsibilities. The existence of a violation of 26 M.R.S.A. 979-C(l)(A)
(1988), therefore, depends entirely on whether knowledge by MSTA unit
employees that all future grievance matters will be referred to IA for
scrutiny may reasonably be anticipated to discourage the filing of
grievances.
We think that any role by IA in the investigation of grievances will
have a chilling effect on employee access to the parties' grievance resolu-
tion procedure. IA fulfills a vital function within the Bureau. Its
investigative methods are, of necessity, shrouded in secrecy. Because the
consequences of any "sustained" finding regarding charges upon which an IA
investigation is initiated potentially include dismissal, everyone, as the
Chief himself testified, is "somewhat worried as a result of being involved
in an internal [affairs] investigation." We conclude that the Act's free
exercise guarantee compels us to require that the Bureau separate its
grievance investigatory functions from its internal affairs functions.
The less-than-open investigative procedures permitted IA are not consistent
with the atmosphere of free information exchange and workplace democracy
upon which collective bargaining is based.
This is not to say that we find in any way unlawful a requirement that
IA be notified of the filing of grievances as an aid to management com-
munications. Additionally, we find nothing unlawful in the use of IA as a
-25-
repository for storage of results which have obtained in grievance matters.
Miscellaneous Matters
The MSTA's complaint alleges that the Bureau's actions violated 26
M.R.S.A. 979-C(1)(C) (1988). We have repeatedly noted in analyzing
charges based on the language contained in that and identical provisions of
Maine's other public sector acts, that Section 979-C(l)(C) "is directed at
the evil of too much financial or other support of, encouraging the for-
mation of, or actually participating in, the affairs of the union and
thereby potentially dominating it." Teamsters Local Union No. 48 v. Town
of Fort Fairfield, MLRB No. 86-01, slip op. at 13 (Jan. 24, 1986);
Teamsters Local Union No. 48 v. Town of Kittery, MLRB No. 84-25, slip op.
at 4 (July 13, 1984). The Bureau neither participated in nor otherwise
supported the activities of the MSTA; therefore, we hold that the Bureau
did not violate 979-C(1)(C) of the Act. Because at hearing and in its
brief the Complainants and Respondent have fully and fairly dealt with the
issue of whether the Bureau's actions constituted a violation of 26
M.R.S.A. 979-C(1)(D) (1988), we have addressed that issue assuming that
the above-mentioned references to Section 979-C(1)(C) were inadvertent.
Although the Complainants charge that the acts complained of
"discouraged membership in employee organizations by discrimination in
violation of 979-C(1)(B)," this charge was not pursued beyond allegation
in the complaint. Additionally, none of the aspects of the MSTA's
complaint, against which the Bureau advances the six month limitations
period contained in 26 M.R.S.A. 979-H(2) (1988) as a defense, were
pursued other than for the purposes of background, beyond allegation in
the complaint. Furthermore, we have considered those matters solely as
background evidence. Accordingly, we hereby dismiss both that portion of
the MSTA's charge which alleges a violation of 26 M.R.S.A. 979-C(1)(B)
(1988), and the Bureau's time-bar-based motion to dismiss.
As explained above we do not find any Bureau action, with the excep-
tion of the decision to refer all grievances to IA, to be inherently
destructive of guaranteed rights. Because the total costs of this case are
overwhelmingly attributable to matters other than those concerning which
we have found a violation, we find the award of requested costs to be
-26-
inappropriate.
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. 979-H(3) (1988), it is hereby
ORDERED:
1. That the Bureau cease and desist from interfering with,
restraining or coercing employees, represented for the
purposes of collective bargaining by the MSTA, in the
exercise of their rights to file and prosecute grievances
in accordance with the effective terms of any applicable
collective bargaining agreement.
2. That the Bureau rescind its announced policy of
referring to Internal Affairs, for investigation,
grievances filed pursuant to the effective terms of any
applicable collective bargaining agreement.
3. That portions of the MSTA's complaint which allege
violations of the State Employees Labor Relations Act
based upon the Internal Affairs' investigation of
Lieutenant Douglas Holmes, to determine whether he had
violated any supervisory duty in the processing or
arbitration of the Sergeant Michael Pratt grievance, be
dismissed.
4. That those portions of the MSTA's complaint which allege
violations of the State Employees Labor Relations Act
based upon the questioning of MSTA representative
Sergeant Michael Heino and the attempted questioning of
MSTA representative Sergeant Steven Beal and MSTA
attorney William Troubh during and in relation to the
Internal Affairs investigation of Lieutenant Holmes, set
forth in paragraph 3 above, be dismissed.
5. That the MSTA's allegations of domination or interference
with the MSTA in violation of 26 M.R.S.A. 979-C(1)(C)
(1988), and discouragement of union membership through
discrimination in violation of 26 M.R.S.A. 979-C(1)(B),
be dismissed.
6. That the Bureau of Maine State Police shall post for sixty
(60) days, in conspicuous places where notices to its
full-time Trooper, Corporal and Sergeant employees are
customarily posted, and at times when such employees
customarily perform work at those places, copies of the
attached notice to employees which states that the
-27-
Bureau will cease and desist from the actions set forth
in paragraph I and will take the affirmative action set
forth in paragraph 2. Copies of the notice shall be
signed by the Bureau's authorized representative prior
to posting and shall be posted by the Bureau immediately
upon receipt.1 The Bureau shall take reasonable steps
to ensure that the notices are not altered, defaced, or
covered by other materials; and
7. That the Bureau shall notify the Board by affidavit or
other proof of the date of posting and of final compliance
with this order.
Dated at Augusta, Maine, this 16th day of January, 1990.
MAINE LABOR RELATIONS BOARD
The parties are advised /s/________________________
of their right pursuant Jessie B. Gunther,
to 26 M.R.S.A. 979-H(5) Alternate Chair
(1988) to seek review of
this decision and order by
the Superior Court by filing
a complaint, in accordance /s/_________________________
with Rule 80C of the Maine Thacher E. Turner,
Rules of Civil Procedure, Employer Representative
within 15 days of the date
of this decision.
/s/________________________
George W. Lambertson,
Employee Representative
__________________________
1ln the event that the Board's Decision and Order is appealed and is
affirmed by the Maine Superior Court, the words in the Notice "Posted by
Order of the Maine Labor Relations Board" shall be altered to read "Posted
by Order of the Maine Labor Relations Board, affirmed by the Maine Superior
Court."
-28-
NOTICE TO
EMPLOYEES
POSTED PURSUANT TO AN ORDER OF THE
MAINE LABOR RELATIONS BOARD
AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO PRESENT
EVIDENCE, IT HAS BEEN DETERMINED THAT WE HAVE VIOLATED THE LAW AND WE HAVE
BEEN ORDERED TO POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE
MAINE LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING:
WE WILL cease and desist from interfering with, restraining and
coercing employees, represented for the purposes of collective
bargaining by the MSTA, in the exercise of their right to file
and prosecute grievances in accordance with the effective terms
of any applicable collective bargaining agreement.
WE WILL rescind the announced policy of referring to Internal
Affairs, for investigation, grievances filed pursuant to the
effective terms of any applicable collective bargaining
agreement.
_____________ _____________________________________ _____________
Date For the Bureau of Maine State Police Title
This notice must remain posted for 60 consecutive days from the date of
posting. Any questions concerning this notice or compliance with its pro-
visions may be directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.