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. -1- 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. -2- 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). -3- 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: -4- 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. -5- 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. -6- 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 -7- 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. . . . -8- 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. -9- 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 -10- 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. -11- 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. -12- 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. -13- 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 -14- 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. -15- 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.