STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-02
Issued: March 12, 1991
__________________________________________
)
GORDON LITTLEFIELD and SANFORD POLICE )
ASSOCIATION, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
TOWN OF SANFORD, )
)
Respondent. )
__________________________________________)
On July 2, 1990, Gordon Littlefield and the Sanford Police Association
(hereinafter collectively called the "Association") filed a prohibited practice
complaint with the Maine Labor Relations Board ("Board") alleging that the Town
of Sanford ("Town") had violated the Municipal Public Employees Labor Relations
Law ("MPELRL"), 26 M.R.S.A. 964(1)(A), (B), (D) and (E) (1988). More speci-
fically, the Association alleged that 1) by threatening to take action if
employees refused to sign up for overtime duty, through a memo attached to
paychecks and at a time when contract negotiations were ongoing, the Town has
violated section 964(1)(A), (B) and (E); and 2) by asking employees questions
related to union business during internal investigation interviews, and by vir-
ture of the sheer number of such interviews conducted during the month of
January, 1990, the Town has violated section 964(1)(A), (B), (D) and (E).
In its answer, the Town denied the substance of the Association's complaint
and asserted a variety of defenses such as waiver, estoppel, laches and lack of
jurisdiction. It also filed a counterclaim alleging that the Association had
violated section 964(2)(B) of MPELRL, 26 M.R.S.A. 964(2)(B) (1988), 1) by
refusing to sign tentative agreements;l and 2) by requesting, in its prayer for
_______________________
1At the evidentiary hearing, the Town withdrew this portion of its counter-
claim.
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relief in the complaint, a pay increase for employees at a time when a pay
increase was (and is) the subject of contract negotiations. The Association
denied the substance of the counterclaim and asserted a variety of defenses
such as waiver, estoppel and lack of jurisdiction.
On Friday, August 3, 1990, Board Chair Peter T. Dawson convened a prehearing
conference. His August 15, 1990 Prehearing Conference Memorandum and Order is
incorporated in and made a part of this decision and order.
Alternate Chair Pamela D. Chute presided at the evidentiary hearing, accom-
panied by Employer Representative Thacher E. Turner and Employee Representative
George W. Lambertson. Hearings were held on October 4 and October 26, 1990.
John W. Chapman, Esquire, represented the Association; William H. Dale, Esquire,
and Patricia M. McDonough, Esquire, represented the Town. The parties were
given full opportunity to examine and cross-examine witnesses, introduce docu-
mentary evidence, and make oral argument. The parties filed post-hearing
briefs, the last of which was received on January 3, 1991. Additional exhibits
were received, as previously arranged with the parties, on January 10, 1991.
The Board deliberated this matter on January 31, 1991.
JURISDICTION
Complainant Sanford Police Association is the bargaining agent, within the
meaning of 26 M.R.S.A. 962(2) (1988), for the bargaining unit of policemen
and dispatchers employed by the Sanford Police Department. Complainant
Gordon Littlefield is a public employee within the meaning of 26 M.R.S.A.
962(6) (1988 and Supp. 1990). The Town is the public employer, within the
meaning of 26 M.R.S.A. 962(7) (Supp. 1990), of the employees in the unit of
policemen and dispatchers. The jurisdiction of the Board to hear this case and
to render a decision and order lies in 26 M.R.S.A. 968(5) (1988).
FINDINGS OF FACT
Count 1
1. The collective bargaining agreement covering the policemen and
dispatchers in the Sanford Police Department expired on December 31, 1989.
Negotiations for a successor agreement began in October of 1989.
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2. At a negotiation session on November 29, 1989, the Town informed the
Association that beginning in January of 1990, it would only pay time and one-
half ("T+1/2") for overtime work when required by the contract or when required by
the Fair Labor Standards Act.2
3. From sometime after 1986, when the FSLA overtime requirement was
established for law enforcement and other municipal employees, until January of
1990, when the Town instituted its new policy, employees of the Sanford Police
Department were paid T+1/2 for all hours they worked outside of their regularly
scheduled workshifts, whether the hours resulted from a forced recall or other
reason outlined in Article 11, section C, or from filling a vacancy under
Article 8, section B, and its accompanying side agreement.
4. At the November 29th meeting, where the overtime rate change was
announced, the Association agreed not to file a prohibited practice case in
response to what it believed was a unilateral change in policy; rather, it
agreed to pursue the matter through the grievance procedure in the collective
bargaining agreement; over 100 grievances have been filed, and the matter is
going to arbitration.
5. During the month of December 1989, Captain Gordon Paul, a member of
the Town's negotiating team, heard conversations among union representatives
regarding the possibility that employees might not continue to sign up for over-
time under the Town's new policy. He informed Chief Ronald Dugre of what he'd
heard, and thereafter, at a meeting of the Town's negotiating team, also
informed chief spokesperson Annalee Rosenblatt of the conversations.
6. In response to the conversations, Ms. Rosenblatt drafted for Chief
Dugre's signature a memo to employees, which in addition to outlining the new
policy on overtime rates, stated the following:
I know I can expect your same continued cooperation with
regard to filling extra jobs and shift vacancies. Any
significant change in the pattern of practice of signing
___________________________
2For most categories of employees, the Fair Labor Standards Act ("FLSA")
requires T+1/2 for all hours worked beyond 40 hours per week. It does not require
T+1/2 for law enforcement employees until they have worked the equivalent of 171
hours during a 28-day cycle, or approximately 43 hours per week. 29 U.S.C.
207(k) (Supp. 1990).
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for these jobs or any refusal to sign for them as in the
past, will be carefully reviewed and may be considered
what is called a form of self-help or an illegal job action
under Title 26 of the Maine Revised Statutes. The Depart-
ment will take appropriate action in this regard.
The memo was distributed to employees on January 4, 1990, by attaching it to
their paychecks.
7. During a negotiating session between the parties later that day, the
Association let the Town know that it was upset and disturbed about what it con-
sidered to be a threat in the memo. The parties then continued their nego-
tiations as scheduled; the negotiations lasted for approximately four hours.
8. By a memo received in Chief Dugre's office on January 9th, the
Association informed its members as follows:
It is the position of the Sanford Police Association,
concerning the recent memorandum from the Chief regarding
overtime, that we will not initiate, sanction, encourage,
condone, support, advocate, or participate in any organized
effort to engage in any type of work slowdown.
It is left to the discretion of each individual member as
to whether or not he or she wishes to accept or deny any
overtime opportunities. It is a personal, individual
choice.
No member of the Sanford Police Association will be dis-
criminated either for or against for his or her individual
decision to accept or deny overtime.
9. Prior to distribution of the January 4th memo, no employee was ever
disciplined for failure to work overtime to fill a vacancy pursuant to Article 8,
Section B.
10. Article 8. section B, of the expired collective bargaining agreement
states:
B. Shift vacancies caused by vacations, sick leave,
personal leave or caused by other temporary vacancies
shall be filled by those [permanent, full-time] employees
on a day-off or time-off through a rotating list.
11. A June 5. 1984 side agreement states, in part:
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1. In accordance with Article 8 B of the Agreement
shift vacancies caused by vacations, sick leave, personal
leave or caused by other temporary vacancies shall be
filled by those employees on day-off or time-off through
a rotating list. The list(s) will be made up and used as
follows:
Category 1 - Overtime known more than five (5) days in
advance.
The job will be posted. Bargaining unit members want-
ing to work the job will sign the posting. The job will
be filled three (3) days in advance of the work by the
bargaining unit member(s) whose name is next on the
rotating list.
Category 2 - Overtime known more than four (4) hours
but five (5) days or less in advance.
Bargaining unit members will be called from the rotating
list beginning with the name next on the list.
Category 3 - Overtime know [sic] four (4) hours or less
The next six (6) names on the rotating list will be called.
2. Dispatchers will be called first to fill dispatcher
vacancies in categories 2 and 3 followed by qualified patrol
officers. Patrol officers will be called to fill patrol
vacancies in categories 2 and 3. Supervisors will be called
to fill supervisors vacancies in categories 2 and 3.
3. No answer, a busy signal, unavailability to come
to the phone or a refusal to work will be counted as time
worked for purposes of the rotating list.
4. Private service jobs will be filled as above from
a second rotating list used exclusively for this purpose.
5. The rotating lists referred to in sections 1 and 4
above will be posted in the dispatcher area.
6. When a call is made, the rotating list will be
marekd [sic] appropriately stating one of the reasons in
section 3 above if an employee does not fill a position
for which he/she is called.
7. Once the list is exhausted and no employee accepts
a vacancy, the Town may fill the vacancy with non-bargaining
unit personnel.
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12. Article 11, section A, states:
A. Effective April 1, 1988, provided the contract is
signed, the regular work week shall be an average forty
(40) hours per week, over a seven (7) day cycle. Eight
(8) consecutive hours in a regular work shift shall
constitute a normal work shift.
13. Article 11, section C, states:
C. Overtime shall be paid to all employees covered by
this Agreement at the rate of one-and-one-half (1 1/2)
times their hourly rate for the following: Recall to
duty from an off-duty status, court appearances, and
time worked over eight (8), for investigations, acci-
dents, and any other reason having the approval of the
employee's supervisor or the Chief. Employees who appear
in court, and those who are recalled to duty shall receive
a two (2) hour minimum guarantee.
Count 2
14. In the early morning hours of December 2, 1989, Officers Michael
Thornton and Stephen Parker were dispatched to a residence in Springdale, Maine,
in response to a phone complaint received by the Sanford Police Department from
a Mr. Stephen Quint. When Thornton arrived at the residence, he was told by the
complainant that Mr. David Dugre, son of the Police Chief Ronald Dugre, had
appeared outside of the Quint residence threatening to shoot Quint, Quint's
girlfriend (who is David Dugre's estranged wife), and himself. When Thornton
arrived, Mr. Dugre had left the scene.
15. Before leaving the residence, Thornton gave Quint a voluntary witness
statement form to be filled out and filed with the police department. Thornton
also filled out an offense report and a utility report, and then returned to the
station and wrote up three criminal summones -- for harassment, criminal
threatening, and criminal trespass. Over the next three days he filled out
three more utility reports in connection with conversations with Mr. Quint and
Mrs. Dugre and his attempts to locate other witnesses to the incident.
16. At the station, before going off duty on December 2nd, Thornton left a
handwritten note about the incident on the pass-on list, for the next shift.
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Corporal Rod Beaulieu, the night shift supervisor at the time of the incident,
briefed patrolman Brian Paul, who was the morning shift supervisor coming on
duty to replace Beaulieu. After reviewing the reports and summones that had
been written by Thornton, and concerned about David Dugre's threat to take his
own life, patrolman Paul called Chief Dugre and then went to the Chief's home to
brief him about the incident.
17. About one hour later, having talked to his son, the Chief called
patrolman Paul off the street into the police station; after reviewing the
reports and summones, the Chief complained that there was no witness statement
attached to the reports. He then ordered patrolman Paul to take the summones,
and not to serve them or let them be served. He also directed Paul to find out
where the witness statement was. Eventually patrolman Paul turned the summones
over to Deputy Chief Daniel Stanley.
18. Sometime after leaving his shift on December 2nd, officer Thornton was
notified at home by officer Parker that Chief Dugre had ordered that the three
summones not be served. He was also told by Parker that his pass-on list
report had disappeared.
19. In response to what he believed to be improper actions by the Chief,
Thornton called Corporal Gordon Littlefield, president of the Sanford Police
Association, and dispatcher Harold Ward, also an Association board member.
20. When Thornton next arrived at the station, he met with Littlefield and
Parker. Littlefield had prepared a list of possible criminal charges against
the Chief, based on the phone conversation with Thornton. After discussing the
matter, they decided to pursue it through the chain of command, and Thornton met
a couple of days later with Deputy Chief Daniel Stanley.
21. At some point during this period, Thornton received a phone call from
the Chief that he took to be an "ass-chewing." The chief stated that "we take
care of our own."
22. An internal affairs investigation (IA 89-11) was initiated regarding
officer Thornton's handling of the December 2nd incident. Thornton was inter-
viewed twice and Parker was interviewed once. In their interviews, both men
were questioned about a handwritten piece of paper that had been found in the
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station briefing room, attached to a copies of the David Dugre summones. The
piece of paper contained a list of criminal charges, including obstruction of
government administration. The list had resulted from discussions among
employees, including Association board members, about wrongdoing by the Chief.
23. A second internal affairs investigation (IA-90-02) was initiated in
January of 1990 for the purpose of investigating the possible improper release
of confidential information regarding the December 2nd incident. The rules and
regulations of the police department prohibit revealing confidential information
except as necessary to perform one's duties; individual confidentiality state-
ments signed by employees prohibit the release of confidential information to
anyone outside the department without the consent of the Chief.
24. During IA-90-02, ten department employees, including Association offi-
cials Ward and Littlefield, were investigated. Pursuant to the contract, both
Ward and Littlefield were read the Garrity warning -- that is, they were told
that they were being asked questions related to the performance of their duties,
and that assertion of their Fifth Amendment rights would subject them to suspen-
sion, termination or other appropriate penalty.
25. In the January 16, 1990 interview of Corporal Littlefield, he was
questioned about the conversations and meetings that occurred regarding Chief's
conduct in connection with the December 2nd incident, as follows [typographical
errors in the transcript have not been corrected]:
G.P. [Captain Gordon Paul, interviewer] As a result of
that investigation, information was determined, was
obtained rather by management that there may have been
conversation or conversations concerning possible
charges being brought against the Chief and subsequent,
management learned that a conversation was made, contact
was made with an outside person from this Department who
happens to be one of the selectmen and that information
regarding this incident was leaked to that person which
was in direct violation of not only statements regarding
confidentiality that employee's sign, but also it
violates the chain of command. With that in mind, I
would like to ask you if you recall..... let the record
indicate that Corporal is knocking on my door at 1664
hours.
. . .
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G.P. O.K. Do you recall at briefing at 1600 hours,
Cpl. Allaire mentioning something to the effect about an
incident involving David Dugre and Stephen Quint from
the first shift to that same day.
G.L. [Corporal Gordon Littlefield] I remember there was
a lot conversation about it, I don't know if he mentioned
something specifically at briefing. He may very well have.
G.P. Can you mention, can you tell me what you remember
about that.
G.L. Generally, all I can remember is that supposedly,
there had been some summones for David Dugre and that
er, Brian Paul who was acting Cpl. at the time had
stopped by the Chief's office (correction on that) the
Chief's house to advise him of it and subsequently, sum-
monses weren't served for whatever reason.
G.P. In interviewing another employee concerning that
afternoon and that briefing, were you upset when you
heard that.
G.L. I don't know if upset is the right word, er I was
a little concerned that.....
G.P. Why was that?
G.L. You asking me for a personal opinion?
G.P. ER, yes.
G.L. I didn't really think it was too appropriate,
where it was the Chief's son, I thought that there was
a little bit of conflict of interest there.
G.P. You mean with the Chief stepping in at that point.
G.L. That is correct.
G.P. O.K. And did you advise Cpl. Allaire in some point
in time that afternoon, that you were going to, that you
wanted to make a few phone calls regarding that in-
vestiga .... that incident.
G.L. I don't recall that, no.
G.P. O.K. Specifically, do you recall around five
o'clock that day, that you requested from the Supervisor
to come in to make some calls and that one of the calls
you made was to officer Thornton at his residence.
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G.L. I may have made a call to officer Thornton. It was
either in response to having him, him asking me to get
a hold of me or I know that I spoke to him a few times
during that period.
G.P. What was the, what was the general subject matter of
the phone call. Why would you call Thornton, or why
would he call you.
G.L. Cause I'm president of the Police Association, the
SAnford Police Association.
G.P. Uh huh. But what did he call you, what did he say
when he called you, or what did you say when you called
him concerning this incident involving David Dugre and
his son.
G.L. I don't recall the full substance of the conver-
sation, I know that he was concerned that, as he indi-
cated to me, that he thought that he was getting screwed
on the deal for some reason.
G.P. Do you know when officer Thornton first became
aware, do you know when office Thornton first became
aware of the fact that the charges were being placed
on hold pending further investigation.
G.L. I don't know how he became aware of that. I don't
recall it anyway.
G.P. Why did he think he was being screwed, to use your
terminology.
G.L. The only impression that I could get from him was
that he felt that er, somebody thought that he was doing
something wrong by issuing the summonses and that was the
ways it had always been done and he couldn't figure out
why, you know, they weren't being served other than the
fact that he was the Chief's son.
G.P. Now you said we, who is we? You and who else.
G.L. We, in what?
G.P. You said we were concerned about officer Thornton
and the charges concerning the Chief's son, who would
"we" be?
G.L. I don't recall saying we, I thought I said he, but
he was concerned about that.
G.P. O.K. So he voiced his concern to me, was that
when, was it at that point that you two discussed about
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the five or six charges, criminal charges that the Chief
may have violated by becoming involved in this incident.
G.L. No.
G.P. When was that.
G.L. We're beginning I think on areas of confiden-
tiality as far as proceedings of the Association though.
G.P. I have been advised by the town attorney Bill Dale
to order you to divulge the nature of those conversations
and in the opinion of the town attorney Bill Dale, the
Union has no powers of investigatory natures in this
Department, that they only have a grievance procedure
which they were following. Whereas you made no mention
of the grievance procedure, at this time I am instructing
you to divulge the information that was obtained in those
conversations, because the Union has no power to conduct
any preliminary investigations in this Department.
G.L. O.K. It was later that evening when I was off
duty.
G.P. About what time was it?
G.L. Sometime after, er, if I recall, it was some time
after midnight, ten after, five after, somewhere there.
G.P. From doing other interviews, another employee in
this investigation has advised me that they thought that
it was at the Station in the Training Room at 2300
hours, would that be correct.
G.L. It was in the Training Room at the Station. I
don't recall the exact time.
G.P. So, basically what would you, what was your inten-
tion or what was officer Thornton's intention when you
drew up these five or six charges, wrote these up which
possibly charges that the Chief had violated. What was
your intention?
G.L. There was no intention at that time. It was just
a general discussion of what area that he may have
possibly violated. It was just a general discussion
back and forth between officer Thornton and myself.
G.P. Was there anybody else present.
G.L. Hm, let's see..Harold Ward and Roger Laprise if I
recall.
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G.P. Was there anybody else present that you recall.
G.L. I don't recall anybody else being in there.
G.P. Did you make any phone calls to any other members
of the Department concerning this, at that point.
G.L. At that point.....
G.P. That evening, that day.
G.L. Not at that point nor at any subsequent time.
G.P. Did you have any conversations with former officer
David Damato concerning this, the next day or at any
time.
G.L. I may have. I don't know.
G.P. Can you tell me what you remember of those conver-
sations, with officer Damato concerning this incident.
G.L. I'm not even sure that I spoke with him, there was
so many, it was just a general buzz around the Station,
everybody seemed to be talking about it.
G.P. Did you speak to Anne Dwyer about this.
G.L. Not directly, no.
G.P. Did you speak to her indirectly.
G.L. No, not that I'm aware of. I think if I recall
correctly, she was, I don't know if she was working that
night, though he was.
G.P. According to the shift record that night,
dispatcher Dwyer would have come at 4 o'clock, four to
midnight, dispatcher Hall had worked over two hours on
arragement for dispatcher Ward who came at 1600 hours.
Did you have a chance to talk with Harold and Anne Dwyer
around this five o'clock time period, five or six o'clock
when you came in and gave Thornton that phone call, did
you have occassion to talk to Anne Dwyer and Harold about
this.
G.L. I talked with Harold. I didn't talk with Anne
Dwyer.
G.P. Was it decided at that point, that somebody should
approach Anne Dwyer and have her contact her sister.
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G.L. Not that I recall.
G.P. Did you and Harold have any conversations regarding
that this matter should be brought to the attention of
Faith Ballenger, selectmen.
G.L. I didn't have any conversation regarding that.
G.P. Did you have a conversation with, with Harold Ward or
Arthur Allaire concerning possibly contacting the
Attorney General's Office regarding this matter.
G.L. I don't recall having that conversation with Arthur
Allaire, but I may have had it with Harold cause we were
bandying different things about what should the Union do,
or if the Union should do anything at all.
G.P. Did anybody at any point contact the staff officer
on call or did anybody go to the Supervisor officially
and voice their concern over what may have been, what you
have determined to be inappropriate conduct on the part
of the Chief which may warrant somebody going officially
on the record to the chain of command.
G.L. I'm not aware of any staff officer that was called,
I don't know if somebody called on them. I didn't voice
any direct opinion to Arthur, that what they said, it
seemed to be general conversation of everybody so, it was
buzzing around.
G.P. O.K. Let the record indicate that the time is 1606
hours and I am going to stop the tape and change sides
because we are almost at the end of this side.
(tape turned over)
G.P. The time is 16:06 p.m. and this side 2 of the
interview with Cpl. Gordon Littlefield. Cpl. Arthur
Titcomb is present as a Union represetative. We you
advised at some point that day by Cpl. Allaire not to get
involved in this incident involving David Dugre and
Stephen Quint.
G.L. I don't recall being advised of it.
G.P. So the only contact with other officers was that
you spoke with officer Thornton and you discussed it with
Harold Ward concerning possible actions or things that
Annie could do regarding this, if he thought that any-
thing should be done at all.
G.L. Just those two.
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G.P. Yes.
G.L. No. Roger was there later.
G.P. Roger Laprise.
G.L. Roger Laprise, er somebody, I've been trying to
think who it was, handed me a list, there was a couple
other people in the department that had looked through
17A to see you know, what things that could possibly have
been done and somebody mentioned, I'm trying to recall who
it was ..... I'm not sure but I think it was Arthur
Allaire that had mentioned from one of his classes, that
the Chief down in New Jersey had been cited for the exact
same thing and had been found in violation, something,
like I said, there was a whole lot of general, discussion
about, but er, I can't say definitely it was limited just
to Harold and Thornton and Roger.
G.P. So your official, your official statement is keeping
all these things in mind, that you didn't contact anyone
outside this Department directly, concerning this incident.
G.L. I will categorically tell you at this point, that I
did not contact any person outside this Department, whe-
ther it be from the press, or private citizen or other-
wise concerning this.
G.P. Were you present when Anne Dwyer called her sister,
Faith Ballenger, a selectman.
G.L. I'm not aware that she called her.
G.P. O.K. Do you recall any statements made by Anne
Dwyer to the effect that she had called her sister at any
later time, any statement that she made to the effect that
she called her sister at some point in time and informed
her sister of the information regarding this information.
G.L. I have no idea of any contact if any, that Anne
Dwyer had with her sister. I have no direct, or indirect
knowledge.
G.P. Did you make any calls to the Attorney General's
Office regarding this.
G.L. No I did not.
G.P. Did you make any calls to the press.
G.L. I did not. Let the reflect that as a result of
speaking with officer Thornton, that I advised that this
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was not a Union matter, that looked into it preliminarily
and felt that if he had any concerns about this and
further concerns, that he should go through the chain of
command and contact the Deputy Chief.
G.P. Cpl. Allaire informed me also that at some point in
time, some time later, that you had approached him con-
cerning a phone call that you had gotten from Faith
Ballenger and that you were undecided whether or not you
should call her, do you recall that.
G.L. O.K. This was er, o.k. this directly has to deal
with the Police Association but I'll answer it anyway,
er, there were certain things that arose out of the sche-
duled union meeting.
G.P. Uh huh.
G.L. Subsequently ....
G.P. Which I don't want to know anything specific on the
record.
G.L. O.K. Yeah.
G.P. Of What was said in that Union meeting. I'm just
G.L. O.K. Which is not on that date, it's subsequent
to that, so it's not, your question is not specifically
and narrowly related to December 2nd and my actions.
G.P. So before you go on, so in other words what your
telling me was that the day that you approached Cpl.
Allaire and asked him if you should be speak to Faith
Ballenger about something had nothing to do with this
incident involving David Dugre and Stephen Quint.
G.L. That's correct.
G.P. O.K. Then I don't want to know anything about
that.
. . .
G.P. All right, I would like to ask you ..... I have
developed information that Dispatcher Ward was quite con-
cerned regarding this, what he perceived to be was inter-
ference on the part of the Chief, is that safe to say.
G.L. I don't to what extent that he was concerned but he
was concerned, that's correct. He felt that it was a
conflict of interest.
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G.P. Did he voice his opinion that he thought that
something should be done, such as getting a hold of Anne
Dwyer for the purpose of informing her sister.
G.L. I don't recall him making that statement, no.
G.P. Do you recall him telling you words to the effect,
that Annie had taken care of it, that the information had
already been relayed to Faith Ballenger.
G.L. I don't recall him making that statement to me.
G.P. Did he make any statements at all concerning the
fact that he may have been working when Anne Dwyer went
into another room and used the phone to contact her
sister.
G.L. Did he make any statements regarding that.
G.P. Yes, to you.
G.L. No. Not that I recall.
G.P. Have you heard any statements to the effect that
she did call her sister, selectwoman Faith Ballenger.
G.L. Nothing concrete, there is speculation that she has
on occassion talked with her sister. The substance of
those conversations have never been privileged, to, nor
have direct knowledge that she made it. I would assume
because of the family relationship that she probably has
occassion to talk to her now and then but I don't know
what she talks to her about.
G.P. But specifically referring to December 2nd and sub-
sequent days after December 2nd, so long as it still
pertains to this David Dugre, Stephen Quint issue, you
don't have any knowledge at all regarding Anne Dwyer
speaking to people outside this Department.
G.L. I have no knowledge.
G.P. Just for the record I would like to go over a
statement regarding confidentiality which you signed on
May 11 of 1987 and witnessed by Cpl. William Single and
specifically I would like to refer you to Section 4 and I
would like to read it: Any information believed to be of
importance to the effect of operation of the Department
or Town shall be communicated through the chain of com-
mand. Did you in any way violate that section on
December 2nd or subsequent days after December 2nd.
-16-
G.L. No.
G.P. Do you know of anybody that did.
G.L. Not that I'm aware of.
G.P. And you don't know of anybody that released informa-
tion to the press. I mean to Faith Ballenger (excuse me)
regarding this investigation.
G.L. I have no direct, or indirect knowledge of anyone
releasing any information to the press to the Board of
Selectmen, in their totality or individually.
G.P. If officer Thornton decided that he wanted you to
go through with the charges that were listed, that the
Chief had possibly violated, what would you have done at
that point.
G.L. He would have been asked to submit his grievance in
writing at which time the executive board would have
veiwed it, at that time the whole baord would have viewed
it.
G.P. I have no further questions at this time Cpl. Little-
field. Is there anything that you would like to say.
26. The following exchange took place in the January 22, 1990 interview of
dispatcher Harold Ward [typographical errors have not been corrected]:
G.P. [Captain Gordon Paul, interviewer] I also would
like to, also inform you at this time that, that besides,
that specifically that there has been information deve-
loped that there was a series of conversations in the
station that night concerning (inaudible) possibly
filing criminal charges against the Chief as a result of
his "alleged interference" in this investigation . . . .
Being that the discussion of criminal charges may have been
tied in somewhat with the releasing of the information to
the public.
. . .
G.P. Do you remember Cpl. Littlefield drawing up a list
of potential charges that, criminal charges that the
Chief may have committed, at his "alleged interference"
in this investigation?
H.W. [Dispatcher Harold Ward] I don't recall Cpl.
Littlefield drawing up any list or I don't know who drew
-17-
up a list, at some point in the night I saw a list I
can't tell you who authored it.
G.P. Do you remember what the list said?
H.W. No I don't, I know it was taken from I think it
was taken from 17 or 17A or something again, don't
forget, I'm not a trained police officer, but I think
that it was taken from that, I don't know who authored
it, but I saw it on a sheet of paper.
G.P. According to Cpl. Littlefield's interview he
stated on the record that he had a discussion with you
and Roger Laprise concerning this incident involving the
Chief's son, could you tell me what that involved?
H.W. I don't I answer negative on that earlier, I don't
remember a discussion that he had with myself and Roger
Laprise, there was a meeting that was held in the
training room which I did not attend, and I think that's
what he's making reference too, I did discuss the
situation with Gordon Littlefield I don't recall Roger
Laprise being part of the conversation, and the conver-
sation took place in dispatch, not in the training room,
I didn't go into the meeting in the training room, which
was held around midnight,
G.P. Did he make any reference to releasing any infor-
mation concerning this incident involving the Chief's
son and Steven Quint to anybody outside the department?
H.W. No I'll answer that, I think the the context that
he did not make reference to releasing any information
outside, I think the rest of that conversation that took
place would come under a conversation of Union matters,
but he did not make reference to releasing anything out-
side.
G.P. Did he make any reference to calling the Attorney
General's office regarding that?
H.W. No as far as I'm concerned that would consist of
releasing it outside. And he did not.
G.P. Okay, so he didn't make any statements, you don't
recall him making any statement that he may possibly
release any information about this outside, whether it
be,
H.W. I don't
G.P. the press, or the AG's,
-18-
H.W. I don't recall him making any statements about
that he specifically was going to release it outside to
the press to anybody to the Attorney General or anybody
else, that he specifically was going to do that,
G.P. Let me just indicate for the record at this point
that the questions that I have been asking you were
questions that I developed in response to information
that I obtained from doing other interviews and I'm
trying to determine what is fact and what was rumor and
what was passed on third hand. You never talked to any-
body outside this department, Dispatcher Ward, con-
cerning that investigation with, an investigation
involving Chief Dugre's son and Steven Quint?
H.W. Are you referring too on the night of 2, December,
G.P. Yes.
H.W. no.
G.P. Okay, subsequent to, after the night of 12/2/89,
any time after 12/2, did you discuss the incident of the
Chief's son and Quint with anybody outside the depart-
ment other than in the performance of you Union duties?
H.W. No.
G.P. So in answer to the allegations contained in the
letter which you got on or around 1/10/90, concerning
sections 24.12 and 24.14, if I asked you if you devulged
any information which should have been kept confiden-
tial, or secret, your answer would be?
H.W. As far as to outside sources, the answer would be
negative, as far as with the, basically the question you
just asked me is did I discuss it with anybody outside
of the department other than in Union activities, I was
able to say that I didn't, but it was discussed with
John Chapman.
G.P. Okay, but as far as anybody
H.W. Not on the second by the way, this was a week
later, when he was dowe here.
G.P. Okay, but as far as saying anything to any members
of the Board of Selectmen Town Administrator, the press,
members of other agencies, you're answer to that would
be
H.W. I did not.
-19-
Counterclaim
27. In the complaint that is the subject of this proceeding, as relief for
alleged violations by the Town, the Association requested that the Board order a
pay increase reflecting the consumer price index at the time of contract nego-
tiations. Negotiations for a new contract were not completed at the time the
complaint was filed with the Board.
DISCUSSION
The Association's complaint consists of two counts. The first is that by
threatening to take action if employees refused to sign up for overtime duty,
through a memo attached to paychecks and at a time when contract negotiations
were ongoing, the Town has violated 26 M.R.S.A. 964(1)(A), (B) and (E) (1988).
The second is that by asking employees questions related to union business
during internal investigation interviews conducted during the month of January,
1990, and by virtue of the sheer number of interviews conducted during that time
period, the Town has violated 26 M.R.S.A. 964(1)(A), (B), (D) and (E) (1988).
In its counterclaim, the Town alleges that the Association's request for relief,
specifically its request that the Board order a pay increase for employees, is
itself a violation of MPELRL, 26 M.R.S.A. 964(2)(B) (1988), since the request
was made at a time when negotiations on the issue of wages were ongoing. Both
parties have asserted a variety of defenses.
Count 1
At the heart of the Association's section 964(1)(E) allegation is its posi-
tion that the January 4th memo constituted an illegal unilateral change by the
Town. We agree.
Inherent in the duty to bargain under section 965(1) of MPELRL, 26 M.R.S.A.
965(1) (1988), is a prohibition against making unilateral changes in the man-
datory subjects of bargaining. Coulombe v. City of South Portland, No. 86-11,
slip op. at 11-12, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986). Three elements
must be present to find a violation of section 964(1)(E) of MPELRL: 1) the
employer's action must be unilateral; 2) it must be a change from well-estab-
lished practice; and 3) it must involve a mandatory subject of bargaining.
Teamsters Local Union 48 v. Eastport School Department, No. 85-18, slip op. at
-20-
4, 8 NPER ME-17003 (Me.L.R.B. Oct. 10, 1985). There are four exceptions to the
unilateral change rule: a bona fide impasse in negotiations on the subject;
business exigency; waiver; and past practice. Maine State Employees Associ-
ation v. State of Maine, No. 78-23, slip op. at 4 (Me.L.R.B. July 15, 1978,
aff'd sub nom. State of Maine v. Maine Labor Relations Board, 413 A.2d 510, 2
NPER 20-11024 (Me. 1980).
The Town's defenses to Count I are as follows: 1) in November, when the
Town announced its intention to change its overtime policy, the Association made
no request to bargain the change or its impact. It agreed to resolve the dis-
agreement over whether the change was legal under the contract, by processing
the matter through the grievance procedure; 2) the Town had good reason to
believe that there would be a concerted effort by Association board members to
encourage employees not to sign up for overtime; 3) Ms. Rosenblatt, the Town's
spokesperson, informed the Association that the memo was not intended to be a
threat, but rather a response to information the Town had received indicating
that employees might withhold their overtime services; 4) by attaching the
memo to paychecks, the Town was not making an economic threat, but was simply
following an established practice for providing notices to employees; and
5) the memo couldn't have been intimidating, since contract negotiations that
occurred just after the memo was distributed were very productive. We will
address each defense.
The Town's first defense, which in essence is waiver, is not persuasive.
In making this argument, the Town fails to make a distinction between the change
that it announced in November, and the change it announced in its January 4th
memo. By its announcement in November, the Town changed the rate of pay, from
T+1/2 to straight time, for overtime hours worked pursuant to Article 8, section B,
of the contract. It is this change that the Association agreed to pursue
through the grievance procedure, and that consequently is not before us. The
second change, made through the January 4th memo announcing that it would "take
appropriate action" if employees discontinued signing up for overtime, in
-21-
effect made the previously voluntary signup for overtime mandatory.3
The Town's waiver argument for this second change fails on two counts.
First, regarding the Association's agreement in November to use the grievance
procedure, it could only have agreed to proceed in that manner with the first
change, since the second change had not even occurred. Second, in November when
the first change was announced, the Association could not have requested to
bargain the second change, since it had not been announced; nor did the Associ-
ation have any reason to expect that the second change would occur as a result
of the first one, and therefore to request impact bargaining.
The Town's second defense, which in essence is the past practice exception
to the unilateral change rule, also fails. While the Town may have had reason
to think that employees would stop signing up for overtime under Article 8,
Section B, the fact is that under that Article employees would have had every
right to do so. Apparently the employer believes that because employees
have signed up for overtime in the past, their refusal to do so would be an
illegal work stoppage or slowdown under 26 M.R.S.A. 964(2)(C) (1988), in spite
of the contract language indicating that such work is voluntary. We disagree.
It is true that a party may be held to an established practice that is substan-
tially different than what was contemplated by the collective bargaining agree-
if that party failed to object to the practice when it had the opportunity.
Coulombe v. City of South Portland, No. 86-11, slip op. at 17, 9 NPER ME-18008
(Me.L.R.B. Dec. 29, 1986). We are not faced with that situation here. First,
in signing up for overtime for the last several years, employees have simply
been doing what they are permitted, but not forced, to do under Article 8 of the
contract. To suggest that because they took advantage of a contractual right,
_______________________
3Statements in the 1984 side agreement to Article 8, section B, such as
"Bargaining unit members wanting to work the job will sign the posting,"
". . . a refusal to work will be counted as time worked for purposes of the
rotating list," and "Once a list is exhausted and no employee accepts the
vacancy, the Town may fill the vacancy with non-bargaining unit personnel"
[emphasis added], make it clear that signing up for overtime work under Article
8 was voluntary until the January 4th memo was distributed. Uncontroverted
testimony indicated that no employee has ever been disciplined for failure to
sign up, so no past practice had been established that negated the plain
language of the contract.
-22-
they have in effect turned the right into a requirement, makes no sense.
Second, and more important, the employer is no longer paying T+1/2 for overtime
until employees have worked the equivalent of 171 hours in a 28-day cycle. No
past practice has been established at the straight time rate, and therefore
employees are entitled to refuse overtime work if they choose to do so.
Nor are we persuaded by the fact that Ms. Rosenblatt informed the Associ-
ation that the memo was not intended to be a threat, but rather a response to
indications that employees might quit signing up for overtime. As we have
already indicated, the response was inappropriate, since employees had and have
the right to refuse Article 8 overtime if they choose to. In addition, the memo
on its face contains a clear threat.
We agree with the Town's fourth defense, and as a result we need not reach
the fifth defense. No evidence was presented at hearing to indicate that the
action the Town intended to take if employees failed to sign up for overtime
would directly affect employees' paychecks, or more particularly that such
action by the Town would affect ongoing negotiations. Rather, we find that the
Town's purpose in distributing the memo was simply to attempt to prevent what it
mistakenly believed would be an illegal job action if it occurred. Thus, the
Town has violated section 964(1)(A) only derivatively (that is, as a result of
its violation of section 964(1)(E)).
No evidence was presented to indicate that any of the exceptions to the uni-
lateral change rule are applicable in the matter before us. Consequently, we
find that the Town's distribution of the January 4th memo, in which it announced
that it would take appropriate action if employees discontinued signing up for
overtime, constitutes a refusal to bargain collectively in violation of 26
M.R.S.A. 964(1)(E) (1988), and derivatively constitutes unlawful interference
with employees' free exercise of their right to bargain collectively, in viola-
tion of 26 M.R.S.A. 964(1)(A) (1988).4 We will order such relief as will
effectuate the policies of the MPELRL. 26 M.R.S.A. 968(5)(C) (1988).
As to the allegation in Count I that the Town's actions violated section
964(1)(B) of MPELRL, we will dismiss this allegation, since the Association
failed to present any evidence of discrimination.
-23-
Count 2
In the second count of the complaint, the Association alleges that by asking
employees questions related to union business during internal investigation
interviews conducted during the month of January, 1990, and by virtue of the
sheer number of interviews conducted during that time period, the Town has
violated 26 M.R.S.A. 964(1)(A), (B), (D) and (E) (1988).
In its own defense, the Town argues that an employee must furnish infor-
mation during an investigation of alleged employee misconduct, if the inquiry is
still at the investigatory stage and no disciplinary action has been taken;
that the questioning during the interviews of Association officers Ward and
Littlefield concerned the leak of confidential information, and not union acti-
vities; that at one point in Littlefield's interview, he stated that he did not
believe the discussion he had with officer Thornton concerning potential charges
against the Chief constituted a union matter; and that after all of the January
interviews were completed, no disciplinary action was taken against any
employee.
There is no disagreement that the Town has the authority to question its
employees in connection with employee misconduct, and that employees are
required to answer those questions. Cook Paint & Varnish Co. v. NLRB, 648 F.2d
712 (D.C. Cir. 1981) ("Cook I"); Service Technology Corp., 196 NLRB 845 (1972);
Primadonna Hotel, 165 NLRB 111 (1967). It is equally clear that an employer may
not inquire into union activities; in particular, there is a "fundamental dif-
ference" between questioning a regular employee and questioning a shop steward
or other union official, unless that official is directly involved in the
misconduct that is the subject of the interview. Cook I at 723-5; Cook Paint
and Varnish Co., 258 NLRB 1230 (Sept. 1981) (Supplemental Decision and Order)
("Cook II"). The main issue before us, then, is whether or not Ward and
Littlefield were questioned about union business.
The Ward and Littlefield interviews arose out of information the police
department had that a person or persons outside of the department had been con-
tacted about the December 2nd David Dugre incident. Police department manage-
ment considered such contacts to be in violation of both the rules and regula-
tions of the department as well as the confidentiality statements that employees
had signed.
-24-
Littlefield was questioned about his calls to and from Michael Thornton re-
garding the Chief's actions in connection with the December 2nd incident; about
how he felt about the David Dugre summones not being served; about conversations
in connection with possible criminal charges against the Chief and about his
intentions regarding those charges (he was specifically ordered to answer these
questions when he objected to them); about what he would have done had Thornton
asked him to proceed with action against the Chief; about whether he or anyone
else had contacted dispatcher Anne Dwyer, her sister Selectwoman Ballenger, the
Attorney General's office, or the press concerning the December 2nd incident;
and about whether dispatcher Ward was upset about the Chief's actions and had men-
tioned talking to Dwyer about it. Ward was questioned about whether he or
anyone else had released information about the December 2nd incident outside the
department or whether there were discussions about doing so (including to the
press or the Attorney General's office); about conversations in connection with
possible criminal charges against the Chief; and about whether Littlefield made
a list of possible charges against the Chief, and the content of that list.
The Town presented no evidence to indicate that anything other than the
Chief's conduct was the subject of any releases of information that may have
occurred. While the stated purpose of IA-90-02 was couched in more general
terms -- in terms of the release of confidential information in connection with
a criminal investigation -- it is clear from the questioning of both Ward and
Littlefield that events surrounding the Chief's conduct were the main concern
and focus of that investigation. While much of the questioning of Littlefield
and Ward may therefore have violated their First Amendment rights, as the
Association argues, the Board has no jurisdiction to consider or to remedy such
violations. Much of that questioning, however, also violated 26 M.R.S.A.
964(1)(A) (1988).
The Town argues that at the time Littlefield was interviewed, he stated that
his discussion with Thornton about possible charges against the Chief was not
union business. The Town inaccurately characterizes Littlefield's statement.
While it is true that Littlefield stated that contacting the Attorney General or
the press or otherwise taking action outside of the police department was not a
union matter, his statement in no way indicates a belief that the Association
had no business even discussing the Chief's actions. In his representational
capacity, Littlefield was obligated to at least listen to Thornton's concerns
-25-
and to decide what, if any, action might be appropriate.
The involvement of both Littlefield and Ward in the December 2nd incident
arose as a result of their positions as Association officials; Michael Thornton
was upset that the Chief had ordered that the three summones not be served and
that his pass-on list report had disappeared, so he contacted Ward and Little-
field to see what could be done about it. In his role as Association president,
Littlefield discussed the problem with Thornton and other employees, and made up
a list of criminal charges that might be brought against the Chief. We find
that these activities constituted union business, and therefore that questions
about those activities themselves, about Ward's and Littlefield's thoughts and
feelings regarding the Chief's behavior, and about what Littlefield would have
done had Thornton asked him to proceed with action against the Chief, went well
beyond the right of the Town to make legitimate factual inquiries into possible
employee misconduct, and therefore interfered with, restrained and coerced
employees in the exercise of their section 963 rights. We will order such
relief as will effectuate the policies of the MPELRL. 26 M.R.S.A. 968(5)(C)
(1988).
In addition to its charge regarding the Ward and Littlefield interviews, the
Association also charges that the sheer number of internal investigation inter-
views, during the month of January, 1990, constituted a separate violation of
section 964(1)(A) because those interviews were for an improper purpose. We
disagree. As we have stated, IA-90-02's main focus was on employee contacts
outside of the department in connection with the Chief's behavior; once again,
while the January interviews of the ten employees may have interfered with their
First Amendment rights, we have no First Amendment jurisdiction. Nor are we
persuaded by the Assocation's argument that there was a connection between the
internal investigation interviews and what was occurring at the bargaining
table. Consequently we decline to find that these interviews constituted a
violation of the duty to bargain. Finally, since evidence was not introduced to
support the alleged violation of either section 964(1)(B) or (D), these allega-
tions will be dismissed.
Counterclaim
We will also dismiss the Town's counterclaim. We know of no basis, and the
Town has provided none, for finding that a request for relief in a prohibited
-26-
practice complaint is itself a prohibited practice.
Relief
The Town and its representatives will be ordered to cease and desist from
threatening to take action against employees who refuse to sign up for Article 8
overtime, or otherwise making unilateral changes in the mandatory subject of
Article 8 overtime. It will also be ordered to cease and desist from inter-
fering with, restraining or coercing employees in the exercise of their sec-
tion 963 rights by questioning them about union business. In addition, we will
order the Town to sign, date and distribute to each employee in the bargaining
unit the attached "Notice"; since distribution of the January 4th memo was by
attachment to paychecks, distribution of the attached "Notice" shall be by
attachment of the "Notice" to paychecks on the next regularly scheduled pay day
for employees in the unit. If the "next regularly scheduled pay day" occurs
within five working days of the date of issuance of this decision and order, the
"Notice" may be attached to paychecks distributed on the next regularly sche-
duled pay day thereafter. Within 25 calendar days of the issuance of this deci-
sion and order, the Town shall notify the Executive Director, in writing, of the
steps that have been taken to comply with our order.
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) (1988), it is hereby ORDERED:
1. That the Respondent Town of Sanford and its representatives and agents
shall:
a. Cease and desist from threatening to take action against
employees who refuse to sign up for Article 8 overtime,
or otherwise making unilateral changes in the mandatory
subject of Article 8 overtime;
-27-
b. Cease and desist from interfering with, restraining
or coercing employees in the exercise of their section
963 rights by questioning them about union business;
c. Sign, date, and distribute the attached "Notice" to each
employee in the policemen and dispatchers bargaining
unit. Distribution shall be by attachment of the "Notice"
to paychecks on the next regularly scheduled pay day for
employees in the unit. If the "next regularly scheduled
pay day" occurs within five working days of the date of
issuance of this decision and order, the "Notice" may be
attached to paychecks distributed on the next regularly
scheduled pay day thereafter;
d. Notify the Executive Director, in writing, within 25
calendar days of the issuance of this decision and order,
of the steps that have been taken to comply with this
order.
2. That the Association's allegations of encouraging or discouraging union
membership by discrimination, in violation of 26 M.R.S.A. 964(1)(B) (1988),
and discharging or otherwise discriminating against an employee in violation of
26 M.R.S.A. 964(1)(D) (1988), are dismissed.
3. That the Town's counterclaim against the Association is dismissed.
4. That the Association's request for a pay increase for unit employees
is denied.
5. That requests by the Association and the Town for attorney's fees and
costs are denied.
6. That the disposition of interview tapes and transcripts still in the
possession of the parties shall be in conformance with the requirements of the
-28-
police department's rules and regulations and the parties' collective bargaining
agreement.
Dated at Augusta, Maine this 12th day of March, 1991.
MAINE LABOR RELATIONS BOARD
/s/__________________________
Pamela D. Chute
Alternate Chair
/s/__________________________
Thacher E. Turner
Employer Representative
/s/__________________________
George W. Lambertson
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)(F)
(1988) to seek review of this decision and order by the Superior Court, by
filing a complaint in accordance with Rule 80C of the Maine Rules of Civil
Procedure within 15 days of the date of issuance of this decision.
-29-
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
_____________________________________________________________________________
NOTICE TO ALL EMPLOYEES IN THE POLICEMEN AND DISPATCHERS UNIT
Pursuant to
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MAINE PUBLIC EMPLOYEES LABOR RELATIONS LAW
you are hereby notified that:
1. THE TOWN OF SANFORD WILL NOT threaten to take action against
employees who refuse to sign up for Article 8 overtime, or
otherwise make unilateral changes in the mandatory subject
of Article 8 overtime.
2. THE TOWN OF SANFORD WILL NOT interfere with, restrain or
coerce employees in the exercise of their section 963
rights by questioning them about union business.
3. THE TOWN OF SANFORD WILL, within 25 calendar days of the
date of issuance of the Board's decision and order, notify
the Maine Labor Relations Board, in writing, at its offices
in Augusta, Maine, of the steps that have been taken to
comply with the Board's order.
TOWN OF SANFORD
Dated: ___________________________________
Ronald G. Dugre, Chief of Police
If employees have any questions concerning this Notice or compliance with
its provisions, they may communicate directly with the offices of the Maine
Labor Relations Board, State House Station 90, Augusta, Maine 04333.
Telephone 289-2015.