Teamsters v. Town of Fairfield, No. 94-01, Interim Order, Oct. 1, 1993, Interim Order, May 18, 1994, Decision and Order, Dec. 5, 1994 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-01 Issued: October 1, 1993 ____________________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Complainant, ) ) INTERIM ORDER v. ) ) TOWN OF FAIRFIELD, ) ) Respondent. ) ____________________________________) On September 13, 1993, a prehearing conference was held in the above-captioned case. Oral argument was held on the request for deferral to arbitration made by the Town of Fairfield, pursuant to Rule 4.07(D) of the Board's Rules and Procedures. After consideration of arguments made by the parties, the prehearing officer denied the request for deferral. Pursuant to Rule 4.07(D), the Town has appealed the prehearing officer's decision. We agree with the prehearing officer that the complaint includes allegations that cannot be deferred to arbitration. We also agree that because the issues in this case are so inter- twined, they cannot reasonably be separated and resolved in separate forums.1 Since the Teamsters have expressly agreed to forego arbitration,2 there is no danger that it will have "two bites at the apple" on arbitrable issues. Accordingly, we affirm _________________________ 1The Town agrees that this is the case. 2For National Labor Relations Board's application of its Dubo deferral policy in these circumstances, see 1 The Developing Labor Law 1029, n. 119 (3d ed. P. Hardin ed. 1992). -1- the decision of the prehearing officer that the Town's request for deferral is denied. Issued at Augusta, Maine, this 1st day of October, 1993. MAINE LABOR RELATIONS BOARD /s/________________________ Pamela D. Chute Alternate Chair /s/________________________ Howard Reiche, Jr. Employer Representative /s/________________________ George W. Lambertson Employee Representative -2- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-01 Issued: May 18, 1994 ______________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Complainant, ) ) v. ) INTERIM ORDER ) TOWN OF FAIRFIELD, ) ) Respondent. ) ______________________________) On April 13, 1994, the Teamsters filed a motion to reopen the record to receive "vital documents, termed as the "Independent Investigative Report on the Appointments and Oaths of Kelly Whitney and Fairfield Police Department,'" on the basis that they are "directly related to the issues of credibility and intent" and "pertain to testimony and events which were deliberately testified to otherwise during hearings of 94-01." Reopening the record after the completion of the presen- tation of both parties' cases is a matter within the sound discretion of the Board. See generally New England Hotel Realty, Inc. v. Finley, 508 A.2d 121, 122 (Me. 1986). Upon consideration we conclude that the Teamsters' request must be and hereby is DENIED. Issued at Augusta, Maine, this 18th day of May, 1994. MAINE LABOR RELATIONS BOARD /s/_____________________________ Peter T. Dawson Chair /s/_____________________________ Howard Reiche, Jr. Employer Representative /s/_____________________________ George W. Lambertson Employee Representative -1- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 94-01 Issued: December 5, 1994 ____________________________ ) TEAMSTERS UNION LOCAL 340, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF FAIRFIELD, ) ) Respondent. ) ____________________________) On June 21, 1993, Teamsters Union Local 340 (Teamsters) filed a prohibited practice complaint (PPC) with the Maine Labor Relations Board (Board) in which the Teamsters allege that the Town of Fairfield (Town) has violated 26 M.R.S.A. 964(1)(A), (C), (D) & (E) and 965(1) (1988) by coercing an alternate Teamsters' shop steward, dealing directly with unit members during negotiations, placing the Teamsters' chief steward, Gary Moen, on administrative leave without explanation, suspending a unit employee for discussing a grievance, suspending two unit members and terminating the Teamsters' chief steward for concerted union activities. The Teamsters' complaint avers that the above-referenced Town actions had as their purpose coerced employee agreement to the Town's bargaining demands. The Town filed an Answer and Counterclaim on July 27, 1993. The answer requests deferral to a scheduled arbitration proceeding. The answer states that the Town's representatives did meet with union members on February 4, 1993, that the meeting was attended by the Teamsters alternate steward John Emery and that the meeting was informational and conducted for the purpose of correcting a miscommunication by the mediator to the Teamsters respecting the Town's agreement to a Teamsters' bargaining request. The Town denies coercing anyone, denies interfering with negotiations and states that it informed Moen that he was -1- being placed on administrative leave pending investigation of allegations that he had "been secretly tape recording his conversations with the Chief." The answer states that officer Dana McInnis was suspended "for lying to the Chief regarding his misuse of the Police Department photocopier and for disobeying a direct order concerning preservation of the confidentiality of the Department's internal investigation into Gary Moen's [alleged] misconduct." The answer asserts that Moen was terminated by Fairfield Police Depeartment (FPD) Chief John F. Pouliot for "numerous acts of disloyalty and insubordination" consisting of secret tapings of FPD conversations, making dishonest statements concerning his taping when questioned by the Chief, playing the tapes to persons outside the department, encouraging others to tape the Chief, making derogatory statements about the Chief and violating proper law enforcement procedures. Additionally, the answer avers that officers McInnis and Jordan were not disciplined for protected concerted activities but rather for secretly taping the Chief and playing those tapes to other employees. As defenses the Town advances that the complaint fails to state violations of Section 964(1)(A), (C), (D), or (E) as a matter of law, and fails as a matter of fact to allege a violation of Section 964(1)(B). The answer states that the Teamsters' allegations of direct dealing are barred by waiver and latches. By way of counterclaim the Town asserts that the Teamsters unlawfully predicated submission, for ratification, of the parties' agreement-in-principle on all outstanding bargaining issues upon the Town's withdrawal of disciplinary proceedings against Moen, McInnis and Jordan. The Teamsters' August 23, 1993, response to the Town's counterclaim states that ratification was not predicated to depend upon withdrawal of disciplinary proceedings. The Teamsters allege in response that the contract remained unsettled -2- due to disagreement over health insurance issues and was submitted to fact finding on that basis. The answer to the counterclaim states that the "discipline handed Sgt. Moen, Officer McInnis and Jordan must be subject to the wright line test (MLRB No. 86-01 Teamsters Union Local No. 48 v. Town of Fort Fairfield)." The Teamsters allege that in the circumstances no ratification free of the effects of the Town's coercion could be conducted. On September 13, 1993, a prehearing conference was conducted in this matter by Board Chair Peter T. Dawson. At the prehearing Chair Dawson entertained oral argument respecting the issue of deferral. On September 14, 1993, advance notice of the prehearing officer's deferral decision was given to the parties. The Town sought review by the full Board that day. On September 15, 1993, Chair Dawson issued an interim order denying the Town's request for deferral. On September 29, 1993, a Prehearing Conference Memorandum and Order was issued by Chair Dawson. That Prehearing Conference Memorandum and Order is hereby incorporated in and made a part hereof. On October 1, 1993, the Board, with Alternate Chair Pamela D. Chute substituted for Chair Dawson, affirmed the denial of deferral. On September 29, 1993, the Town sought Emergency Review and a Stay of the Board's decision and asked the Kennebec County Superior Court to issue an Order Compelling Arbitration. The Superior Court denied these requests on October 26, 1993. The Board, consisting of Chair Dawson, Employee Representa- tive George W. Lambertson and Employer Representative Howard Reiche, Jr., conducted a full evidentiary hearing in this matter on November 1, 2, 8 and 10, 1993, January 27 and February 1, 1994. All parties were afforded the opportunity to present evidence and argument. The Board denied an April 13, 1994, request to reopen the record in a May 18, 1994, interim order. The parties filed simultaneous original and then response briefs, -3- the last of which were received June 21, 1994. The Board deliberated the case on August 24, and on November 30, 1994. The Town is represented in this case by attorney Linda D. McGill and Ms. Julie A. Boesky. The Teamsters are represented in this matter by Teamsters' business agents Ernest Canelli, III, and William Turkewitz. JURISDICTION The Town is a public employer within the meaning of 26 M.R.S.A. 962(7) (1988). The Teamsters are the bargaining agent of a unit of the Town's law enforcement employees, within the meaning of 26 M.R.S.A. 962(2) (1988), which includes all Sergeants, regular Patrol Officers and Clerk-Matron-Dispatchers. The Teamsters have alleged that the Town has committed prohibited practices proscribed by 26 M.R.S.A. 964(1)(A), (C), (D) and (E) (1988), during the six-month period immediately preceding the filing of the charge. See 26 M.R.S.A. 968(5)(B) (1988). POSITIONS OF THE PARTIES The Teamsters contend that under the direction of Town Manager Peter McKenney, the Chief pretextually discharged Moen and disciplined Jordan and McInnis, three staunch union supporters, at a "time critical to the union's ability to stand together and not be forced to accept the Town's proposals on two major issues." The Teamsters allege that the Town exploited a four-to-three split in the unit, by conducting thinly-disguised direct dealings and by suspending work rules regarding the posting of union matters on the general bulletin board, to facilitate the efforts of a dissident unit member to obtain contract closure on terms acceptable to the Town and a minority of unit members. -4- The Teamsters argue that a lack of prior notice that taping was not permitted, the timing and extent of the disciplinary investigation and discipline occurring as a result of taping activities by employees, the absence in the case of each of the three disciplined employees of "a hearing, knowledge of the charges of wrongdoing, a fair investigation, [and] the right to confront their accusers," and the fact that the Chief "was the complainant, the investigator and the decision maker, all wrapped up as one agent for the Town" indicates that the Town was animated by one purpose, "to destroy the Union by controlling its members and eliminating those which could not be controlled." The Town contends that the Teamsters failed to prove that the discipline of either Moen, Jordan or McInnis was based on anti-union animus for protected activities and that the Board is prohibited from examining the Town's actions further in light of this failing. The Town contends that Moen was given notice and the opportunity to explain whether he had secretly taped the Chief, played the tapes for others and urged subordinates to secretly tape. The Town contends that it conducted a thorough investigation and that the Chief dismissed Moen for engaging in conduct which violates fundamental law enforcement policy, and the specific requirements of his job description to keep discussions with the Chief in confidence. The Town contends that Moen was dishonest during the investigation and that the investigation revealed other improper work performance by Moen. The Town contends the Town's Rule and Regulation Number 1-11 permits immediate dismissal for "insubordination, dishonesty that undermines the effectiveness of the agency's activities or employee performance, improper disclosure of confidential information and[/or] taking action which impairs the reputation of the department." The Town similarly argues that the contract does not require progressive discipline for "serious -5- infractions." The Town contends the contract requires no "pre- disciplinary hearing even in the case of termination," and, instead, provides post-termination grievance arbitration over just cause. The Town states that because its discipline of Moen, Jordan and McInnis was for just cause and was not motivated by anti- union animus it cannot reasonably be said to interfere with, restrain or coerce employees in the exercise of MPELRL protected rights. The Town contends its meeting with employees was for clarification purposes only and was attended by the Teamsters' alternate shop steward Emery, acting with apparent authority, in chief steward Moen's absence. The Town counter-complains that after agreement-in-principle on all outstanding bargaining issues at the parties' February 19, 1993, mediation session, "Canelli announced, for the first time, that a contract could be ratified if and only if the Town would drop all disciplinary proceedings against Sgt. Moen and Officers McInnis and Jordan relating to their secret tape recordings of the Chief." The Town alleges that it denied the request and that "as a consequence of the Teamsters' insistence on [this] non- mandatory subject" the contract remained unsigned until March of 1993. The Town states that the proposal's eleventh-hour introduction, its non-mandatory nature and the Teamsters' refusal to sign are all evidence of bad-faith bargaining, in violation of 26 M.R.S.A. 964(1)(E) (1988). FINDINGS OF FACT Complainant's exhibit No. 19, a November 18, 1992, Human Rights Commission Report, concerning which ruling was reserved at hearing, is hereby ruled inadmissible. At all times material to the charges in this case the Fairfield Police Department (FPD) employed nine full-time police -6- officers in the positions of Chief (Pouliot), Captain (Frazee), Sergeant (Moen), Patrolman (McInnis, Jordan, King, Emery and Farris), and Clerk-Matron/Dispatcher (Kempers). Patrolman Shaw was on paid suspension during all times material to the complaint. The FPD employed an on-call Animal Control Officer (ACO)(Tucker), a part-time Matron/ACO/Investigator (Whitney) and a number of part-time reserve patrol officers (LaVerdiere, et. al). Reserve officers' salary is limited to $10,000 annually. The positions of Clerk-Matron/Dispatcher, Sergeant and regular Patrol Officer are included in a collective bargaining unit represented by Teamsters Local Union 340. Sergeant Gary Moen has served as an FPD Patrol Sergeant since his promotion by Pouliot in October of 1991, and as a Teamsters' shop steward since January of 1988, the year in which he was first hired by Pouliot. John F. Pouliot has been Chief of Police since October 1 of 1989, is a past FPD Teamsters' steward himself and has been employed by the FPD for approximately 19 years. Richard Frazee is overall second-in-command of the FPD. Sergeant Moen is second-in-command with respect to, and is supervisor of, the Patrol Division and in other respects is subordinate to Frazee. Moen performed an extended probationary period prior to promotion to Sergeant. There are 16 or 17 employees of the FPD directly subordinate to Moen. John Emery served at most times material herein as alternate FPD Teamsters' shop steward. Article 12-Shop Steward, of the parties' agreement recognizes the right of the Union to designate an alternate shop steward who shall act only in the absence of the shop steward. The shop steward's authority under the contract's terms is limited to investigation of grievances, collection of dues, the transmission of written messages and information from the local and its officers and, within specified work hours, grievance processing and investigation. Six grievances have been filed during Pouliot's tenure. Only one -7- grievance other than the Moen matter, which concerned the supervision of an officer who was indicted for rape, has gone to arbitration. It was resolved. Prior to arbitration, William Hagerty, chairman of the Fairfield Town Council, wrote Canelli on June 16, 1992, with respect to the grievance filed by George Shaw as follows: This is to advise you that the decision of the Town Council concerning the grievance of Officer George Shaw is to DENY the grievance. This is based on the Fairfield Police Department's Rules and Regulations Number 1-11 Article IV Paragraph G Sub-section 3. The Town Council also finds NO requirement in the Statutes or Rules and Regulations which require a HEARING except in the case of DISMISSAL. Sincerely, William Hagerty Chairman, Town Council The other five grievances all concerned rearrangement of shifts and the performance of shift work by Pouliot and Frazee in an effort to cut expenses to satisfy a $14,000 shortfall in revenue. The FPD began experiencing funding difficulties during the summer of 1992, due, in part, to the absence of one patrolman on paid leave, which resulted in an overdraft of the Police Department budget. Pouliot sought to maintain departmental services through issuance of a number of directives which included, among other things, restrictions on comp time and overtime, curtailment of the apprenticeship program and revision from a four-on/two-off, to a five-on/two-off schedule. The Teamsters objected by filing a grievance report as well as a letter of notice with the Chief. The Chief denied the Teamsters' grievance in a July 2, 1992, memo in which the Chief accuses Moen of usurpation of hiring, scheduling and assignment authority. The memo ends with the following paragraphs: F. The Union's failure to approach me with their concerns before filing this frivilous grievance. If you state the -8- Town had options then why did not the Union approach me with them? G. I also take great offense to my Patrol Supervisor, with the rank of Sergeant, presume to give me notice. As the Sergeant it is your duty to assure that all my assignments, directives, and orders are adhered to, not critiqued. H. I am hereby denying your Grievance. On one occasion, Pouliot admonished Moen, at McKenney's instruction, for accompanying Jordan to McKenney's office, to which Jordan had been summoned for questioning during an investigation of an allegation by Jordan that the Fire Chief had been drinking on a call. Pouliot's memo to Moen concerning the matter states: Please submit to me within two (2) days from today's date, an explanatory letter explaining to me the following actions on your part: 1. Why did you find it necessary to accompany Officer Dana Jordan to the Town Manager's office when I explicitly requested Officer Jordan to meet with Mr. McKenney? This appears to be an unauthorized intrusion on your part of an investigation being conducted by me and the Town Manager. 2. Why did you meet with Mr. McKenney this morning to discuss a memorandum issued last week by my office? This appears to be a direct violation of the Chain of Command. The memorandum was issued by me, you did not discuss it with me, and you did not have my permission to meet with the Town Manager on the matter. Kelly Whitney, who is presently assigned to the Detective Division, began employment with the Fairfield Police Department (FPD) in 1991, as a Matron. Whitney was given additional dispatching duties soon after beginning work at the FPD. Whitney was not a bargaining unit member but was supervised by Moen. Whitney possessed pre-service training, was sworn and possessed arrest powers prior to being placed on full-time patrol by Pouliot. When Whitney was hired, she was placed in a "cadet program" pursuant to which she was assigned under Frazee to the Detective Division where she was used for undercover or covert buying of drugs. Moen openly disagreed with the Chief respecting Whitney's performance of both undercover and uniformed duties -9- during the same time span. Moen made comments insinuating that Whitney was not a police officer and had merely been impersonating one. Whitney, who at that time possessed additional ACO duties, became concerned about her authority to arrest and, therefore, about the potential of lawsuits being filed against her. Whitney discussed the matter with Moen in March of 1992, and he expressed concern that she might not obtain an adequate answer from Pouliot. Whitney asked Moen if she should tape a prospective conversation with the Chief, which she was considering having to clarify her FPD "sworn" status. Moen suggested she should tape the Chief and supplied her with a voice-activated microcassette tape recorder. Whitney used this recorder to record a portion of the conversation which she had with Pouliot, in which he confirmed her sworn status. At the time of Moen's taping suggestion, Moen and Canelli had concerns relating to Whitney's performance of unit work. Whitney's unit placement was at one point the subject of a Teamsters' Unit Clarification Petition filed with the Board. Whitney later worked as a police officer, investigating sexual assaults on an on-call basis, or on assignment for specific periods of time with an investigator. The professional relationship between Whitney and Moen was intermittently strained. Whitney filed a complaint of unequal treatment against Moen in December of 1991, alleging that she had been discriminated against by Moen on the basis of her gender. Pouliot took Whitney's complaint seriously and although Whitney desired to resolve the matter by meeting for discussion with Pouliot and Moen, Pouliot insisted that she put the charges in writing so as to facilitate an investigation. Pouliot desired to fully investigate these complaints to shield the FPD from suit. Pouliot told Whitney "she had enough to file a civil action against Gary [Moen]" and that "she should pursue it." At some -10- point, Whitney was offered the opportunity to press her complaints during an expanded gathering of departmental personnel and expressly declined. The written complaint was determined by Pouliot, after investigation, to be too vague to act upon. Since November of 1993, working in a part-time capacity as a reserve, Whitney has been temporarily assigned to perform the duties of a full-time employee who has been out on extended leave. As such, she is receiving the non-unit reserve officer pay rate and no contractual benefits. Whitney has overheard Moen speak with other officers about taping the Chief. Moen had been verbally counseled several times about his comments to, and reluctance to work with, Kelly Whitney and/or other female police officers. Whitney filed complaints against Moen in December of 1991 and in June of 1992. Moen grieved a letter of reprimand from Pouliot with respect to the second of Whitney's complaints. The matter was expunged from Moen's file as a result of settlement of the grievance. Pouliot's February 11, 1992, letter to Whitney dismissing her first complaint lists, among other things, the result of the Chief's investigation as being his determinations that: 1. INTERVIEWS WITH THE MAJORITY OF THE DEPARTMENT MEMBERS REVEALED A DEEP SEATED HOSTILITY BETWEEN MEMBERS OF THE PATROL DIVISION AND THE DETECTIVE DIVISION. 2. ALSO MENTIONED WAS A BELIEF THAT ONCE A MEMBER WORKED FOR THE CAPTAIN ON DRUG WORK THAT THEY WERE NO LONGER ELIGIBLE FOR PATROL DUTY. 3. A SENSE THAT SAFETY CONSIDERATIONS WERE OVERLOOKED BY SOME MEMBERS OF THE DEPARTMENT WHEN IT INVOLVED DRUG WORK. 4. ALSO A SENSE THAT SOME MEMBERS OF PATROL WERE PARANOID WHEN IT CAME TO SAFETY ISSUES. 5. THAT TOO MUCH EMPHASIS WAS PLACED ON BEING TACTICALLY SOUND ON ALL PHASES OF POLICE WORK. 6. THAT A CLIQUE, OR AT LEAST A SENSE OF ELITISM EXISTED WITH THE DEPARTMENT. 7. THAT THE SERGEANT AND THE CAPTAIN DID NOT WORK WELL TOGETHER, THAT OLD WOUNDS WERE STILL THERE, AND WORSE OF ALL -11- THERE WAS NO COMMUNICATIONS BETWEEN THE TWO. 8. LAST BUT CERTAINLY NOT LEAST WAS A SENSE THAT MANY MEMBERS FELT THEY WERE FORCED TO PICK FROM TWO SEPARATE CAMPS WITHIN THE DEPARTMENT. Moen's personnel file contains numerous letters of appreciation and/or commendation from Pouliot. He is generally regarded as a competent and effective co-employee, an excellent Sergeant and a strong steward. Two attempted disciplinary actions against Moen were resolved and withdrawn as a result of discussions with the Chief. Until the most recent negotiations, Moen perceived his relationship with the FPD administration to be "somewhat normal," although there were "occasional differences of opinion" or confrontations in his steward capacity. Canelli, Moen and Pouliot met at the Community Center in August or September of 1992 to discuss outstanding grievances. At one point during this grievance adjustment meeting, Moen left the room, upon request, and Canelli and Pouliot engaged in settlement discussions in his absence. Pouliot and Canelli testified differently about the reasons why Moen left and the nature of their discussions in his absence. Neither account is more credible than the other and we therefore make no findings of fact in this regard. Moen taped conversations at FPD because he distrusted Frazee and Pouliot.1 Canelli encouraged such tapings for their use in grievance processing and supplied Moen with tapes. Moen distrusted Pouliot due to circumstances such as conflicting Human _________________________ 1 On one occasion, Kempers informed the Chief that Frazee had used a department vehicle to go to Augusta on personal business. Pouliot replied that the time was compensatory and that the taxpayers didn't know that he wasn't using the vehicle for official business. Frazee was not disciplined. Pouliot spoke with Frazee and satisfied himself that Frazee had used Emery's personal vehicle and not one of the department's. -12- Rights Commission testimony by Pouliot and Frazee respecting whether Pouliot had warned Frazee about his speech in the presence of "mixed company." Moen's objective in taping was "to cover discrepancies, to have an accurate set of notes to fall back on should there be grievances filed or discipline levied, and just to alleviate any inconsistencies." Moen has taken handwritten notes and later read and interpreted them to members of the FPD unit. At times, Moen perceived discrepancies between his hand-written notes and the Chief's recollection of events. Moen also taped the Chief for self-preservation purposes because he thought the "Chief was out to get him." Moen wanted the tapes to establish that Pouliot was saying one thing and doing another in order to counter-sue the Chief, if necessary. Moen would call Canelli if he thought he had taped something Canelli needed to hear. Moen has played tapes he made of the Chief for Jordan, Farris, Emery and McInnis and for Fairfield Fire Department (FFD) employees (Jim Lane, Jack Adams and Duane Bickford), and admitted such to Pouliot during the Chief's investigation. Moen's playing of tapes was limited to matters affecting the union's business such as personnel matters, grievance investigations and possible grievances. Moen played the tapes he made to no one lacking a need to hear them. During the investigation by Pouliot, Moen limited his admission of such tape playing to tapes "regarding union business." LaVerdiere, then a reserve officer and a past EMT of the FFD, was present, along with Jordan and Farris, on at least one occasion when Moen discussed his taping practices. LaVerdiere first learned that Moen was taping in late December of 1990. Walking into an office in December of 1992, LaVerdiere briefly heard the voices of Moen and the Chief on a tape Moen was playing for himself. Moen shut the tape off and put the recorder away when LaVerdiere walked into the room. Moen told LaVerdiere he was taping to protect himself. -13- In early 1992, Moen taped Pouliot instructing him to speak to Farris about incorrect log keeping. Moen went to Farris' home at Farris' request and while there played the tape for Farris and his wife. Moen encouraged other FPD employees to secretly tape the Chief. The tape of Moen and Pouliot's discussion about whether the Town had told the mediator to convey a Town offer of five or three days, on which tape Emery's comments were recorded, was played at the fire barn by Moen, for Emery and others. Moen made the tape by walking into a routing briefing with Pouliot, while having the tape turned on. The parties had hard negotiations and signed a contract after seven months of bargaining. There were two major Teamsters issues during negotiations--health insurance and first refusal of overtime. The Teamsters "wanted to have five days . . . during which they would have the first refusal of overtime." Present at the first negotiation session were, for the Town, Councilors Richard Fortier and Dan Bickford, and Maine Municipal Association representative Michael Wing. Several union members were occasionally present, and attending officially for the Teamsters were Canelli, assistant negotiator Moen and Fire Department assistant negotiator and fire rescue driver Jim Lane. The parties' ground rules established that their bargaining would be open to the press. Negotiations were primarily joint for both the fire and police departments and were open to members of both units. The Town's "twenty-six or twenty-seven" initial proposals were all perceived by the Teamsters to constitute "union give- backs." One negotiation session was held in August of 1992, and two in October before the Town requested mediation. After the third session, negotiations began to deteriorate. Outside the negotiations the Chief suggested to Moen, "you've [the police unit] got to get away from the fire department" and "to think about yourself." Mediation sessions occurred in November and December of 1992 -14- and in January and February of 1993. A mediation session on January 29, 1993, failed to result in a contract. Prior to the January 29th session, the FPD unit and the Fairfield Fire Department (FFD) unit had agreed that their negotiations position was that the Teamsters "would pay 50 percent of any future [health insurance] increases and that the . . . Town would pick up all retroactivity back to July 1 of the contract year." Although an agreement by the Town to five days of first refusal of overtime had previously been reached, on January 29th the mediator told the Teamsters that the Town had agreed to only three days. The Teamsters thought the Town had reneged. When the mediator informed the Teamsters that the Town would not accept the five-day proposal, the Teamsters and unit employees left. On February 1, 1993, the Town sent the Teamsters a copy of a request for fact finding respecting the police unit which listed the following as issues in controversy: Article 3 - Union Security; Article 5 - Management Rights; Article 6 - Extra Contract Agreements; Article 7 - Probationary Period; Article 8 - Seniority; Article 13 - Grievance Procedure; Article 14 - Rules and Regulations; Article 18 - Training; Article 19 - Safety; Article 20 - Uniforms; Article 21 - Vacation; Article 22 - Holidays; Article 23 - Retirement; Article 25 - Insurance; Article 27 - Sick Leave; Article 28 - Injury Leave; Article 29 - Funeral Leave; Article 30 - Work Week Cycle and Overtime; Article 33 - Complaints Against a Police Officer; Article 34 - Wages. FPD Teamsters' shop stewards and alternates are not officers of the union, and are not by virtue of their offices authorized to negotiate. Canelli appointed the shop stewards of the fire and police departments as assistant negotiators in the last round of negotiations. It is customary for the chief steward to be on the negotiating team. The parties' agreement specifies on page 5 in Article 12 Section 1 that Alternate Shop Stewards "shall act only in the absence of the Shop Steward." On February 4, 1993, Town Manager Peter McKenney called the FPD, asked for John Emery and spoke to him about the need for a -15- meeting to clarify the overtime issue. Assistant shop steward Emery had been a member of the negotiating team from the beginning of negotiations but neither in that capacity nor as alternate steward, had the authority to call a negotiations meeting between unit employees and representatives of management. The Chief also approached Emery about clarifying the Town's overtime position. Emery called a meeting so that unit employees could talk to Fortier, Town Manager Peter McKenney and Pouliot about negotiations issues concerning insurance and first refusal of overtime. Emery tried to contact Moen by phone and left messages on the door of Moen's home. Kempers helped call members for the meeting. Kempers and Emery jointly decided to get everyone together. Emery called Jordan, McInnis at home, Farris, and tried to call Moen. King and Kempers were working. Emery discussed the proposed meeting with fireman Jack Adams. Moen called Emery back later in the day. Emery explained that McKenney wanted to get together and that he had called the other unit members. Moen said he would try to get hold of Canelli. Moen unsuccessfully left messages for Canelli in Madison, Maine, where he was then working, in an attempt to inform him of Emery's planned meeting. Moen spoke over the phone with Emery prior to the meeting and said, "I['m not] happy with it. I['m not] comfortable with it. Let me try to get a hold of Ernie before we do anything." Moen did not tell Emery that as alternate steward he did not have the authority to have unit members attend such a meeting. Emery told Kempers that because he couldn't contact Canelli, Moen didn't want him to conduct the meeting. Emery added that he was going to do it anyway because he didn't want to wait. Emery erroneously thought his attendance was in his official alternate shop steward capacity. Moen didn't specifically caution Emery against meeting without Canelli until he arrived at the station. Moen told Emery that Canelli was the sole negotiator and that it -16- was not right to meet without him.2 Contrastingly, on one occasion before January 29 when the parties were deadlocked, bargaining team assistants Lane and Moen were requested by McKenney to come up and talk to him to see if they couldn't come to an agreement and get things settled out. Their discussion concerned the back payment of insurance. No one attempted to call Canelli prior to this meeting. Moen arrived at the station just prior to the meeting and confronted Emery who explained that the Town wanted "to talk about the issues" and "to clear up some misunderstandings." Moen attempted to have the meeting postponed. Moen told Emery that the meeting would not be proper because Canelli had not been given notice of it. Much of the exchange between Moen and Emery was in raised voice. Moen offered to resign as steward. Moen objected to the meeting saying that offers were going to be put on the table, that that was wrong and told Emery "[y]ou can't do that." Emery and Moen had their heated discussion in Moen's office in the presence of unit members while the Town's representatives remained in the FPD conference room. The Town's representatives knew that Moen objected to the meeting and that he "didn't want it to go on." Moen and Emery had been the best of friends prior to the meeting. Following that conversation, Moen, McInnis and Farris left the building because they wanted no part in the meeting. Kempers and Emery remained and conferred with the representatives of the Town. Moen was otherwise available to attend on the date of Emery's meeting with the Town; _________________________ 2The parties' collective bargaining agreement, in effect during the period July 1, 1989 to June 30, 1992, and post contract expiration due to the Board's status quo doctrine until March 12, 1993, recognizes Teamsters Local Union No. 340, affiliated with the International Brotherhood of Teamsters, as the sole and exclusive representative of all employees in the classifications of Sergeant, regular Patrolmen and Clerk-Matron- Dispatcher of the Fairfield Police Department. -17- however, Moen did not stay to tape the meeting because he "wasn't going to have any part of it. And [because he believed] the consequences of th[e] meeting would have led to nothing anyway." At the February 4th meeting, Moen called Emery a quitter. Council member Fortier, Town Manager McKenney and Pouliot attended the meeting. Only Kempers and Emery remained after Moen and the other unit members walked out of the meeting. The February 4th meeting contained the only "blow-up" between Moen and Emery. During the meeting with the Town's representatives, Emery said he couldn't "understand why we, members, as police members, are being asked to pay back six months of retroactive pay when public works signed a contract three months into this and they weren't made to pay anything." Fortier's response was, "that's a good argument." Town representatives said, after some discussion, "we can work something out." Kempers felt at the conclusion of the meeting that the unit "got headway in getting the contract over with." At the meeting, retroactive payment of insurance and the number of days of first refusal of overtime were the two issues discussed. After the meeting called by Emery, a split occurred in the unit which divided the previously monolithic support for the Teamsters' position on health insurance. Kempers informed Moen the next day that the meeting had gone forward in his absence. Moen later discovered that a second meeting had been called. The second meeting was set by Emery for 3:30 p.m. Moen's shift was to begin at 4:00 p.m. Moen and Emery spoke before the meeting. Most of the unit members were in attendance. Emery attempted at this second meeting to justify his previous action in calling the first meeting. Moen had no advance knowledge of the meeting and did not enter to attend it. Instead, he went to the Chief's office for his regular daily briefing. Kempers came into the Chief's office and invited Moen -18- to the meeting. Emery called the second meeting to relate to those not in attendance at the first meeting that the Town had offered five days of first refusal of overtime, and to tell them he'd brought up the insurance retroactivity issue and that the Town had thought he had a good argument. At the second meeting the participants voted to ask for another mediation session. Moen called Emery a quitter and predicted that his actions would get him killed on the street someday. Emery was hurt, cried and later resigned as alternate steward. On February 5 or 6, Town Manager McKenney told politically active Fairfield citizen Gloria Sturtevant over the phone that Gary Moen was "unstable" and that "he's got to go." Emery issued the following statement in a note to all unit members on February 8, 1993: IT IS APPARENT BY THE NUMBER OF BARGAINING UNIT MEMBERS THAT ATTENDED THE MEETING WITH THE TOWN AT THE POLICE DEPARTMENT ON 02/04/93 AND CONVERSATIONS AFTER THE FACT ; THAT THE MAJORITY OF UNIT MEMBERS DISAGREED WITH MY ACTIONS AND FEEL THAT I "OVER STEPPED" MY BOUNDARIES. THEREFORE, I AM RESIGNING FROM THE POSITION OF ALTERNATE SHOP STEWARD - EFFECTIVE IMMEDIATELY. I WISH TO AND WILL CONTINUE TO PAY MY MONTHLY DUES AS A MEMBER OF LOCAL #340. There was an immediacy about resolving the insurance issue because there was concern that coverage would be terminated if agreement on continued Northern New England Benefit Trust (NNEBT) coverage was not reached. During negotiations, the Chief and bargaining unit members had health insurance coverage under the NNEBT. If the NNEBT plan had been dropped, Pouliot would have had the opportunity to join the Maine Municipal Association's insurance plan. Unit members received a letter from NNEBT which indicated that insurance would cease February 1, 1993. Canelli assured unit members on several occasions that they were not going to lose their health insurance. Canelli never told unit members that there was a thirteen-week grace period respecting their health insurance. Canelli told Emery during one of the -19- sessions that the NNEBT letter respecting cancellation of insurance "was a tactic and that it shouldn't have been sent when it was sent." Due to the concern that NNEBT might stop coverage before the contract was finalized, the unit decided to elect payroll deductions to "cover the entire cost of the increase . . . during the remainder of negotiations." Unit members assured Emery, who could not afford to pick up this cost, that they would cover his insurance until the matter was settled. When Moen and other members went to the town hall to have payroll deductions initiated for premium payments to NNEBT, Town Manager Peter McKenney said that the Town Council had expressly decided that they would not allow payroll deductions. Whitney told Frazee in early 1993 that Moen was taping the Chief. Whitney's revelation was triggered by phone calls to the Sentinel newspaper and to the Town Manager by friends of Moen who had questioned her qualifications and who had asked why an Animal Control Officer was investigating sexual assaults. Frazee told Pouliot at 9:00 a.m. on Wednesday, February 10, 1993, that Moen had been taping him for quite some time. Frazee said people had made "statements to him or he had overheard conversations and that he [, Pouliot,] should know." Pouliot did not know of Moen's taping before February 10 of 1993. Whitney told the Chief, after being called into the Chief's office, that Moen and she both had taped him. Pouliot called individual officers into his office and asked them if they were aware of any taping of the Chief or of other people without knowledge or permission. Each officer was admonished not to discuss their interviews with Pouliot with anyone else until the investigation was concluded. Section B(10) of the January 1, 1991, FPD Sergeant's job description states that a Sergeant "is to ensure that communications between himself and the Chief of Police be kept confidential when others do not have a need to know." There is -20- no indication whether the patrol officer job description contains a similar requirement. Pouliot, on unspecified dates, has "called to everyone's attention the importance of keeping departmental investigations confidential" and has "instruct[ed] the officers about keeping personnel matter investigations confidential." Pouliot felt Moen's taping violated accepted police behavior, his job description and the trust between them as Chief and second-in-command of patrol. Prior to the investigation of the tapings by Moen and others, there had been no written or spoken guidance respecting taping of departmental personnel.3 Neither the Police Department canon of ethics4 nor the FPD Standard Operating Procedures (SOP) contain any taping policy. There is no departmental SOP respecting taping.5 Moen _________________________ 3Article 14 of the parties' collective bargaining agreement empowers the Town to promulgate necessary rules and regulations, requires that they be posted prominently and that employees be provided with a copy. Employees are required to comply with existing reasonable rules that are not in conflict with the terms of the agreement, provided they are uniformly applied and enforced. 4The existence of an FPD canon of ethics was not substantiated. 5Fairfield Police Department Rules and Regulations Number 1-10, entitled Complaints Against Police Personnel, provides procedures for making, investigating and disposing of complaints against department personnel. The procedure is aimed at upholding the public image of the department through responsive- ness to allegations of employee misconduct including misfeasance, malfeasance and nonfeasance. Rule 1-10 predominantly provides for resolution of complaints by citizens, prisoners or arrestees, although Section III.E.8., provides that the procedure outlined "may also be used when departmental employees desire to enter a complaint against any other employee governed by this order." Rule 1-10 provides for two types of investigation, administrative and criminal, with different rules for each. The adjudication procedures provide for varying terms of preservation of disciplinary records in personnel files corresponding to categories of offenses outlined in Rule 1-11 (Employee Discipline). The Due Process section of Rule 1-10 provides that in view of any liberty interest to enjoy -21- _________________________ future employment elsewhere "the department affords an employee a hearing in accordance with the provisions of Rules and Regulations Number 1-11 (Employee Discipline)." Rule 1-11, however, provides no hearing. Fairfield Police Department Rules and Regulations Number 1-11, effective January 1, 1991, and entitled Employee Discipline, states, in pertinent part, in Section IV.B., that: Rules and Regulations [Number 1-10]: Subject Complaints Against Police describes complaint procedures against department employees, whereas this order provides discussion of employee recognition and penalties for various infractions. 1. The department does not purport to provide employees with an all inclusive list of specifically prohibited behavior. One list of examples of such behavior appears in Rules and Regulations Subject; Prohibited Conduct, but no list can be all-inclusive. Employees are expected to have a reasonable perception of what constitutes proper behavior, based on academy training and the observance of the behavior of officers generally. Rule 1-11 provides in its list of permitted discipline that demotion and suspension without pay are "measures normally considered co-equal," and states, inter alia: 6. Demotion shall be to the next lowest rank. Demotion shall only apply to the Sergeant or senior police officer. 7. An employee may protest a suspension within five days of notice of suspension. An employee may appeal a suspension through the Chief of Police to the union. [sic] H. Dismissal Dismissals are made in case of extreme misfeasance, malfeasance, or nonfeasance of duty. A complete record of the circumstances of the misbehavior shall be made by all persons having knowledge of the misbehavior. 1. Employees may protest or appeal a dismissal within fifteen days of receipt of notice, and may appeal in accordance with the procedure outlined under paragraph G. 7 above. 2. Whenever dismissal or suspension is contemplated, the department shall provide notice to the employee. Rule 1-11 enumerates and categorizes examples of misconduct. Category III offenses are stated to, "include acts of such severity as to merit suspension or dismissal at a single occurrence. Category III offenses may be punished by suspension for 15 days (or longer, with approval of the Town Manager) or dismissal." Included among the examples of Category III -22- never asked if he could tape the Chief's conversations with him. There has been no "no-taping" rule established since Moen's termination. Moen first learned of the investigation on February 10, 1993, when, after coming into his office for his regular tour of duty, he discovered his name was absent from the list of new assignments. Moen went to Pouliot's office for his daily briefing. Frazee and King were there. Pouliot informed Moen that he had "launched an investigation . . . for secretly taping conversations without his knowledge or permission, and . . . [told Moen that he] was going to be on paid administrative leave until the end of his investigation." When Pouliot first asked Moen for the tapes, Moen responded, "Who says there are any tapes?" At a later meeting, on March 1, 1993, Moen told Pouliot, when asked for the tapes, that he had given them to Canelli. The Town didn't possess any of the tapes until August of 1993. Moen last gave Canelli a tape on _________________________ misconduct, are: s. Engaging in dishonest or immoral conduct that undermines the effectiveness of the agency's activities or employee performance, whether on or off the job. t. Willful disobedience of a lawful command of a supervisor. u. Disclosure of confidential information to any person except those who may be entitled to such information. v. Taking any action which will impair the efficiency or reputation of the department, its members, or employees. . . . . z. Failure to answer questions specifically directed and related to official duties or job fitness. (Unless criminal prosecution is contemplated.) Rule 1-11 provides no hearing procedure. -23- February 2, 1993.[fn]6 Pouliot asked Frazee if he had any further comments. Frazee told Moen that "they had contacted the District Attorney's office and were deciding whether or not criminal prosecution for violation of privacy would ensue." Moen was asked if he had any further questions. Moen inquired whether Pouliot wanted his badge or uniforms to which Pouliot responded, "[N]o . . . [a]ll I want you to do is to go home and think about it." Moen taped this meeting as well. Pouliot told Moen that he was very disappointed in him and that he felt his privacy had been violated. Moen was placed on paid administrative leave. Pouliot told McKenney about the matter that afternoon via memo.7 Pouliot kept McKenney abreast of the investigation but _________________________ 6Pouliot has never heard the tapes. The only portions of transcriptions of the tapes which Pouliot contends to be injurious either to himself or to the department are "several . . . taped conversations between [him]self and Gary Moen and other members of the department discussing budgetary matters." Other than the Emery-Moen-Pouliot discussion respecting the overtime mixup played at the fire barn, there is no evidence that Pouliot knew of the actual contents of any of the tapes prior to Moen's termination. 7Pouliot's memo to McKenney states, in pertinent part: I want to advise you that I placed Sergeant Gary Moen of the Fairfield Police Department on paid administrative leave as of 1530 hrs on Wednesday, February 10, 1993 until the results of an internal investigation is completed. It was brought to my attention this morning that Sergeant Moen had tape recorded conversations between he and I on many occasions over the past several months without my permission or knowledge. It is also alleged that he had tape recorded conversations with you without your permission. It is also alleged that he has taped conversations with other members of the Fairfield Police Department without their permission. Captain Frazee and I have interviewed nine member of the Police Department on this date and anticipate interviewing several others in the next two days when they are available. These members were advised of the internal investigation and that under our Rules and Regulations they are obligated to cooperate. They were advised that their verbal statements were part of the record and requested they forward to me or Captain Frazee a written statement of the facts that they are personally aware of on this matter. I advised -24- McKenney did not participate in the disciplinary decision making. Pouliot was told by nine employees the first day and a total of sixteen eventually, that taping was occurring. After interviewing Moen, Pouliot re-interviewed some members of the department to re-evaluate their and Moen's previous statements. LaVerdiere, Whitney and Frazee came forward of their own volition and did not receive letters warning that their failure to cooperate in the investigation would result in disciplinary action. McInnis, Moen and Jordan received warning letters. Frazee conducted a solo follow-up interview with Animal Control Officer Tucker after the interview conducted by Pouliot and Frazee together. Pouliot issued to each individual and posted on the official bulletin board for four days, a note requiring all FPD personnel to submit a written statement for use in the Moen investigation. Pouliot instructed employees participating in the interviews that they had to cooperate and that they had to answer his questions. Pouliot asked every officer that he interviewed "if there was anything else they wanted to divulge, as far as taping or any other misconduct," while they were there. Pouliot admonished everyone who was interviewed against discussing conversations in his office dealing with the investigation. Such admonitions are standard practice and are made both to prevent game-planning of testimony and to protect the reputation of the accused. Pouliot told everyone questioned that they had a duty to cooperate with the investigation. Pouliot developed a standard set of questions to use in employee interviews during _________________________ and cautioned the members that had been aware of the taping of my conversations by Sergeant Moen and had not made me aware of it might also be subjected to disciplinary action. With this preliminary information at hand I felt that I had no other choice but to place Sergeant Moen on paid leave until the completion of the internal investigation. I feel that several members under Sergeant Moen's supervision may be intimidated by the fact that he is their immediate supervisor and having him remain on active duty would hinder the investigation and cause an even more hostile working environment for the remaining members. I will keep you informed on a daily basis of the progress of the investigation. -25- the investigation, on the evening of February 10th. Frazee assisted Pouliot in the investigation by taking notes, by assuring that the same questions were asked of all employees and by recording their answers. Frazee submitted minutes to the Chief, of the proceedings with respect to each officer. At the February 10, 1993, interview, McInnis elected to go on with the interview after the Chief said that he didn't need union representation when being interviewed with regard to the possible wrongdoing of other FPD members. Pouliot told McInnis that during the internal investigation he was not to discuss what he had told the Chief with anyone else. One tape of the departmental message traffic respecting a high speed chase which eventually resulted in a fatal shooting, in which Pouliot was involved as a line officer of the FPD, was played repeatedly by departmental personnel including Moen and Emery. The high speed chase tape was made by the Waterville Communications dispatch service in the course of routine business. Pouliot obtained the high speed chase tape initially and has played it to members of the department. There is no reasonable expectation of privacy with respect to the high speed chase tape. On February 10, 1993, after McInnis was interviewed respecting his knowledge of Moen's taping, Moen asked him to pick up a policy and procedure manual, Title 17-A of the Maine Revised Statutes and some grievance forms.8 McInnis did so and delivered them to Moen's home.9 Moen indicated he would file a grievance _________________________ 8The parties' contract provides, in a Letter of Practices Appendix, that "the Town will make available for each Officer a photocopy or extract of Title 17A and 2a." 9The parties' agreement provides, in Article 10-Access to Premises, that "[a]uthorized agents of the Union shall have access to the Town's establishment during work hours for the purpose of adjusting disputes, investigating working conditions, -26- and asked McInnis questions relating to that grievance. Present at the station when McInnis picked up Moen's requested material were officers Ireland, LaVerdiere, Bard, Robideau, Tucker and McKenney. McKenney and Tucker are on-call animal control officers (ACOs). The other officers are non-unit reserves. When McInnis saw LaVerdiere at the Police Department when he came in for the items, he said to LaVerdiere, "I'm not here." McInnis retrieved a number of items for Moen, including Moen's copy of Title 17-A. LaVerdiere told Emery that he had seen McInnis come into the station twice while off-duty and that he had photocopied materials from the "union drawer" where all the grievances, contracts, and union forms are kept. Pouliot obtained a verbal, then written, statement from LaVerdiere, the officer on duty that night, after overhearing talk about McInnis having been at the station twice on the evening of February 10. Bryant LaVerdiere's statement, made on February 11, 1993, states: On 2/10/93 at approx: 19:00 hours I was working at the Fairfield Police Department when Officer Dana Mcinnis came into the police department. While in the police department Dana McInnis was taking paperwork out of the bottom draw of the filing cabnet directly behind the computer in the work area. He also was photo copying some of the paper work in the dispatch room (the same paperwork that was taken from the draw). Also on 2/10/93 at approx: 21:00 hours I again was at the police department when Office McInnis returned to the police department and did the same that described before. Pouliot called McInnis at home to question him. Pouliot asked McInnis if he had discussed the case with anyone and if he had _________________________ collection of dues, and ascertaining that the Agreement is being adhered to, provided, however, that there is no interruption of the Town's working schedule." Article 13-Grievance Procedure of the parties' agreement establishes a grievance procedure for use in resolution of issues of application or interpretation of the agreement, which ends in final and binding arbitration. The grievance article provides that the local Union or its representatives "shall have the right to examine . . . records pertaining to a specific grievance." -27- used the photocopier the previous evening. McInnis admitted having spoken with Moen but denied making photocopies. McInnis was aware that Moen had told Pouliot that no union material would be photocopied on the FPD copier. McInnis had received no previous discipline. Three officers told Pouliot that McInnis had photocopied. Tucker told Frazee that McInnis had not made photocopies and Frazee responded that "two other officers wouldn't lie about something like that." On the 11th, McInnis was interviewed again, he asked for representation during the interview and left when it was denied. Pouliot did not question McInnis further to determine exactly what he had discussed about the investigation with Moen. A letter of suspension and of reprimand issued later that same day. McInnis was represented by Canelli at the third interview where the matter of McInnis' taping of the Chief during a performance evaluation was discussed. McInnis' Weingarten rights were not denied. McInnis did not initially recollect having previously secretly recorded the Chief. McInnis later recalled recording the Chief and admitted having recorded him. McInnis taped Pouliot, mid-year 1991, during an evaluation interview so as to be assured that everything said was placed on a form. McInnis had union representation at that meeting. McInnis fears that he will be terminated for having supported Moen, in part, due to hearing from other departmental employees that "a couple of Danas . . . were close to being terminated" or "were short-timers." On February 12, 1993, Pouliot gave McInnis two pre-prepared letter notices of discipline.10 McInnis was suspended for four _________________________ 10Pouliot gave McInnis two memos on February 11, 1993. The first, which imposed a four-day suspension, states: TO: Officer Dana McInnis FROM: Chief John F. Pouliot REF: Disobedience of a direct order - Suspension without pay for -28- _________________________ a period of four (4) work days commencing on February 12 and ending February 15, 1993. Officer McInnis: On February 10, 1993 you were interviewed in regards to your knowledge of possible violations of the Rules and Regulations by another Fairfield Police Officer. You were in the presence of Captain Richard Frazee and myself. On at least two occasions during that interview I cautioned and told you not to discuss this on-going internal investigation with anyone outside of my office. Captain Frazee and I both remarked afterwards that there was no misunderstanding on your part as to what I meant. On February 11, 1993 at about 3:00 PM it came to my attention that you had been observed in the Police Station making photocopies. Finding this odd as this was one of your days off I called you. I asked you if you had discussed the internal investigation with anyone outside my office. After several seconds of no response I had to prod you by stating that this was not a hard question to answer. You answered " yes I did ". I then asked you what you were doing at the Station making photocopies. You stated you had " not made any photocopies". I then asked what you had been doing and you answered that " I was getting rules and regulations and Title 17A" I then asked you who you had discussed the internal investigation with and you stated "Sergeant Moen" I then requested your presence in my office at 8:30 am tomorrow morning. Therefore for disobeying a direct order from the Chief of Police and possibly compromising an internal investigation I am placing you on four (4) days of unpaid suspension commencing Friday, February 12, 1993 and ending on February 15, 1993. Disobedience of a direct order from a superior officer is a Category III violation of the Fairfield Police Department Rules and Regulations and indicates a possible punishment of fifteen (15) days of unpaid suspension or dismissal. I am advising you that any further Category III violation on your part will result in your dismissal from the Fairfield Police Department. John F. Pouliot Chief of Police The second memo which McInnis received is a written reprimand which states: Officer McInnis: On February 10, 1993 you were interviewed in regards to your knowledge of possible violations of the Rules and Regulations by another Fairfield Police Officer. You were in the presence of Captain Richard Frazee and myself. On at least two occasions during that interview I cautioned and told you not to discuss this on-going internal investigation with anyone outside of my office. Captain Frazee and I both remarked afterwards that there was no misunderstanding on your part as to what I meant. -29- days for allegedly disobeying a direct order not to discuss his interview, by talking to Moen, and was given a written reprimand for allegedly lying about photocopying. Bruce Tucker, an FPD animal control officer, heard both Emery and Pouliot say that the two Dana's were short-timers and didn't even know it. Pouliot states that his comment about the two Dana's was based on the shortcoming in veracity of one employee, the courtesy and job performance of the other, and was made after the disciplining of McInnis. Within a day or two after Moen's suspension, Captain Frazee stated to a prior Fairfield Town Council chair that heads were going to roll down at the police station. LaVerdiere overheard Moen call Pouliot derogatory names and accuse Pouliot of misappropriating funds. LaVerdiere also heard Moen making fun of the Chief's memos and excusing compliance with _________________________ On February 11, 1993 at about 3:00 PM it came to my attention that you had been observed in the Police Station making photocopies. Finding this odd as this was one of your days off I alled you. I asked you if you had discussed the internal investigation with anyone outside my office. After several seconds of no response I had to prod you by stating that this was not a hard question to answer. You answered " yes I did ". I then asked you what you were doing at the Station making photocopies. You stated you had " not made any photocopies". I then asked what you had been doing and you answered that " I was getting rules and regulations and Title 17A" I then asked you who you had discussed the internal investigation with and you stated "Sergeant Moen" I then requested your presence in my office at 8:30 am tomorrow morning. Later that evening I recieved a phone call from Captain Frazee who indicated he had witnesses to you making photocopies at the Police Station last night. In fact you had been at the Station twice last night and made several photocopies. Therfore for lying to me after my asking you a direct question I am placing a Written Reprimand in your Personnel folder for a period of six (6) months from this date. This Reprimand will be removed from your Personnel Folder if no similar violations occurs. I am advising you that if any further violations of this nature is committed by you a more severe action will be taken. John F. Pouliot Chief of Police -30- them, but there is no indication that the Chief knew this. Moen frequently criticized the Chief's memos. Moen called the Chief names and accused him of being "paid-off" by a resident of the town. Pouliot's investigation revealed that Moen had at times called him a "fucking asshole," an "embezzler," a "big dummy," an "incompetent" and that Moen had said "listen to that idiot" in front of subordinates, statements which Pouliot perceived to have the effect of eroding Pouliot's authority. Pouliot believed Moen's actions subjected him to ridicule. Pouliot's investiga- tion also revealed that McInnis, Jordan and Frazee had called him names. Frazee was disciplined on a previous unspecified occasion for calling Pouliot names when failing to get an assignment he desired. During the Moen taping investigation, LaVerdiere accused Moen of not answering a Pung Hill Road "shots-fired" radio call, in a timely manner. LaVerdiere supplied Pouliot with information respecting the incident in response to Pouliot's question, during the investigation, whether "there was anything else [he] should be made aware of." Pouliot questioned LaVerdiere about the circumstances surrounding the incident. LaVerdiere estimates that it took Moen 20 minutes to respond to the Somerset County Sheriff's Department Dispatch Center call during the November 1992 Pung Hill incident. Pouliot concluded that it took Moen 12 to 15 minutes to respond to the gun call and that it took LaVerdiere 2 or 3 minutes to respond. LaVerdiere never previously filed a complaint over the incident. LaVerdiere did not report the "shots-fired" incident because he was new, Moen was his supervisor and he didn't want to cause trouble for himself. Although Pouliot testified that LaVerdiere had told him the Pung Hill incident was one of a number of such incidents, LaVerdiere's testimony is that he did not tell the Chief that there were other such incidents. Department policy is that when two people are available, two -31- people respond to a shots fired call. Neither Steven Dawe, who called the FPD to report the shots fired on Pung Hill Road, nor his companion during the incident, Andrea Thomas, were questioned by the Chief or any member of the FPD regarding the incident. Both testified that Moen arrived three minutes after LaVerdiere. Prior to receiving the termination letter, Moen was never aware of any complaint against him regarding the "shots-fired" call with Officer LaVerdiere. On January 23, 1993, LaVerdiere overheard Moen, who is a reserve EMT at the Fairfield Fire Department (FFD), discussing confidential client-related medical information with FFD EMT Jim Lane. LaVerdiere reported this incident to Pouliot during the February 10, 1993, investigation. Pouliot never raised the "shots-fired" call incident or the disclosure of confidential information incident with Moen prior to his termination. Pouliot's conclusions respecting the "shots- fired" call were that Moen took an inordinate amount of time to respond and that Moen's question of LaVerdiere, whether LaVerdiere really needed him to respond, violated general law enforcement policy that "everybody responds to a gun call." Pouliot does not consider either a first time failure to back up a fellow officer, or a first improper discussion of a person's medical problems outside the department to constitute offenses which warrant termination. Prior to the Moen arbitration, LaVerdiere attempted to review the statements in the file respecting the Pung Hill Road incident and it was missing. On Memorial Day of 1993, LaVerdiere and Farris both responded to a call concerning the discharge of a muzzle-loaded rifle. LaVerdiere detoured en route to apprehend a driver apparently operating under the influence. Moen called Farris about the matter and Farris asked LaVerdiere if he'd informed the Chief about the impression the "scanner world" might draw of his not backing-up Farris on a "shots-fired" call. Farris discussed -32- the gun call/OUI incident with the Chief. Farris did not order LaVerdiere to divert and respond to the OUI; however, he did acquiesce, in LaVerdiere's pursuit of the OUI suspect. We do not make findings of fact with respect to the factual circumstances of the Pung Hill "shots-fired" call due to the widely conflicting testimony regarding the events, the times of their occurrence, and the lack of persuasive indicia that any of the testimony is more credible than the rest. Pouliot questioned Moen on March 1, 1993, about the history, nature and extent of his taping, in the presence of Canelli and Frazee. Moen told Pouliot that he had taped only union business and that he had done so at Canelli's request. Moen told Pouliot that he had two or three tapes, that he had last taped on February 2, 1993, that he had been taping for two or three months prior to February 10, 1993, and only when Canelli couldn't be present. During this interview, Pouliot asked the questions, Moen answered them and Frazee took notes. There is no indication that Moen was refused the opportunity to rebut charges respecting his taping, playing of tapes or urging subordinates to tape. There is no evidence that Moen was refused the opportunity to submit additional oral or written rebuttal.11 Statements Pouliot received from other officers were at variance with Moen's respecting the nature and extent of Moen's taping. Pouliot concluded from these statements that Moen had dozens of tapes, had been taping since 1991, and that nearly all of their conversations had been taped. Other officers indicated _________________________ 11Inasmuch as Moen admitted the tapings, the playing of the tapes and urging subordinates to tape, and in the absence of any suggestion that these admissions were not voluntary, the issue of any engrafted "right to confront accusers" appears immaterial. Additionally, there is no evidence that Moen requested to confront his accusers or that he was denied knowledge of any information upon which charges related to the tapings were based. -33- that Moen had made such statements to them and that Moen was collecting information for a possible suit against the Chief. Pouliot's investigation revealed that Moen used a microcassette tape player placed in his pocket. The Chief subsequently discovered that Moen had taped the February 10th session, during which he was placed on administrative leave. With the exception of asking the District Attorney for an interpretation of a statute, Pouliot contacted no other outside agency during his investigation. The District Attorney told him that the Moen matter was not a criminal one. Moen was the focus of Pouliot's questioning during the investigation, although other individuals shared the focus once they admitted having taped the Chief without his permission. A newspaper reporter called Pouliot and was told by Pouliot, "this is an internal investigation and I have nothing to discuss at this time." Pouliot believes recordings such as those made by Moen, like sleeping on the job, are so obviously contrary to unwritten code, policy and ethics that they needn't be written to be enforceable as violations of industry standards for law enforcement.12 During Pouliot's investigation of the taping, King was interviewed once. King had no knowledge of anyone taping the Chief at that time. Emery told Pouliot that he, himself, had never secretly taped, admitted knowledge of the taping by others _________________________ 12Sleeping on the job is specifically mentioned in the FPD Rules and Procedures, however, Rules and Regulations Number 1-11 provides, in IV.B.1., that: The department does not purport to provide employees with an all inclusive list of specifically prohibited behavior. One list of examples of such behavior appears in Rules and Regulations Subject: Prohibited Conduct, but no list can be all-inclusive. Employees are expected to have a reasonable perception of what constitutes proper behavior, based on academy training and the observance of the behavior of officers generally. -34- and had no answer respecting why he hadn't told the Chief about Moen's taping earlier. Farris assumed from his "impressions during th[e] interview" that the Chief had just learned that Mr. Moen had been taping his conversations." Jordan was interviewed on February 10, 1993, during the Chief's Moen investigation. Jordan did not ask for union representation. Around February 17, 1993, in response to the Chief's request that he make a statement about recording at the FPD, Jordan confirmed to the Chief that he had secretly recorded him on one occasion regarding a citizen's complaint against Jordan.13 Jordan played the tape for no one else and erased it _________________________ 13The statement made by Officer Jordan on February 17, 1993, states: IT IS MY UNDERSTANDING THAT THIS REPORT IS MADE FOR ADMINISTRATIVE, INTERNAL POLICE DEPARTMENT PURPOSES ONLY AND WILL NOT BE USED AS PART OF AN OFFICIAL INVESTIGATION. THIS REPORT IS MADE BY ME AFTER BEING ORDERED TO DO SO BY A LAWFUL SUPERVISORY OFFICER. IT IS MY UNDERSTANDING THAT BY REFUSING TO OBEY AN ORDER TO WRITE THIS REPORT THAT I CAN BE DISCIPLINED FOR INSUBORDINATION AND THAT PUNISHMENT FOR INSUBORDINATION CAN BE UP TO AND INCLUDING TERMINATION OF EMPLOYMENT. THIS REPORT IS MADE ONLY PURSUANT TO SUCH ORDERS AND THE POTENTIAL PUNISHMENT / DISCIPLINE THAT CAN RESULT FOR FAILURE TO OBEY THAT ORDER. AS REQUESTED IN THE LETTER DATED 02/17/93 FROM CHIEF POULIOT A WRITTEN / TYPED STATEMENT ON THE FACTS OF THE ALLEGATIONS INVOLVING SGT. GARY MOEN AND MY KNOWLEDGE OR INVOLVEMENT IN THE RECORDING OF DEPARTMENTAL PERSONAL OR OTHER INDIVIDUALS ARE AS FOLLOWS. 1) I KNOW THAT SGT. GARY MOEN CARRIES A POCKET TAPE RECORDER. THAT SGT. MOEN HAS CARRIED A TAPE RECORDER FROM AT LEAST 1991. 2) THAT SGT. MOEN HAS AT TIMES USED THE TAPE RECORDER TO DOCUMENT ONVERSATIONS WITH THE CHIEF OF POLICE. HOWEVER THE SPECIFIC TOPIC OR NATURE OF THE RECORDINGS ARE NOT KNOWN TO ME AS I HAVE NEVER HEARD THE RECORDINGS. 3) THAT I HAVE HAD IN MY POSSESSION A POCKET RECORDER, AND USED IT IN CONVERSATION WITH THE CHIEF OF POLICE IN ORDER TO DOCUMENT THE RESOLUTION OF A CITIZEN COMPLAINT AGAINST ME. THIS RECORDING WAS FOR MY USE ONLY AND THE CONTENT OF THE RECORDING WAS NOT DIVULGED TO ANYONE ELSE AT ANY TIME. IN FACT THERE WAS NO INFORMATION OF ANY CONSEQUENCE ON THE RECORDING AND IT WAS ERASED ALMOST IMMEDIATELY. 4) THAT I AS A POLICE OFFICER DO NOT FIND IT ETHICALLY OR MORALLY WRONG TO WANT AN ACCURATE MEANS TO RETAIN INFORMATION WHEN -35- almost immediately. Jordan was suspended for four days by a prepared notice of suspension on March 12, 1993.[fn]14 Jordan filed a grievance over his four-day suspension which was eventually withdrawn from arbitration. Jordan told Pouliot that he knew that Moen had been taping "unspecified" conversations since at least 1991. Jordan was not read Miranda or Garrity rights during the investigation. Jordan was not offered a hearing. Jordan felt that he was disciplined for union affiliation and having opposed acceptance of the contract. Whitney, Wrigley, Jordan and McInnis secretly taped conversations with the Chief. Pouliot gave all of these officers four-day suspensions because they had taped on only one occasion, hadn't played their tapes for anyone else and because they had cooperated in the investigation. Reserves were suspended by striking out their names when those names came up on the call-in _________________________ DISCUSSING DISCIPLINARY ACTION INVOLVING MYSELF, OR AT ANY OTHER TIME WHEN THERE IS A POSSIBILITY FOR MISUNDERSTANDING ON DEPARTMENT MATTERS. 14On March 12, 1993, at a meeting which Pouliot requested for purposes of disciplinary action, Pouliot gave Jordan a memo which states, as follows: As you know on February 10, 1993 I became aware that conversations between myself and other employees of the department had been tape recorded without my consent or knowledge, for some period of time. I began an investigation on the matter. I have now concluded my investigation. Based on the results and findings I have made a decision to suspend you without pay for four (4) work days starting on March 14, 1993 and ending on March 17, 1993. The reason for my decision is as follows: 1. You have tape recorded my conversation with you during an interview on a complaint from a citizen. This type of action shows extremely poor judgement on your part, disloyalty to the Chief of Police, and fosters mistrust in others. In light of the type of violation of basic law enforcement procedures and the obvious disrespect for the Chief of Police I have no choice but to suspend you for the four (4) work days. I must advise you that any further violations will result in more severe disciplinary action. -36- list four times, effectively denying them four paid shifts. Pouliot held Moen to a higher standard because of his supervisory position. Pouliot concluded that Moen's past taping and tape playing indicated Moen's distrust of him, eroded the Chief's ability to manage the department by destroying his trust in Moen, and engendered "mistrust amongst members of the department." Pouliot felt he would never again be able to trust Moen and that he could no longer discuss confidential personnel matters or criminal investigation matters with him. Although it is not normal for Pouliot to base a disciplinary decision on the word of one person, Pouliot concluded, based on LaVerdiere's accusations alone, that Moen had discussed a citizen's medical problems in casual conversation at the FPD with a member of the Fire Department who had no "right-to-know." Pouliot regarded the "shots-fired" and confidentiality issues to show a general tendency to disregard basic police policies.15 Pouliot gave Moen full notice of the nature of the investigation on the day he was suspended and conducted a _________________________ 15Kempers perceived that there was a split in the unit resulting in a Moen camp and an Emery camp. LaVerdiere, although not a member of the unit, was in the Emery camp. Jordan and McInnis were part of the group of FPD employees who strongly supported Moen. LaVerdiere often expressed a desire for full- time work within the FPD to Jordan. At the time of his rendition of a signed statement during the Moen investigation, LaVerdiere was next on the full-time patrol hiring list and was aware of that fact. LaVerdiere is now a full-time unit employee as a result of the termination of Sergeant Moen. Pouliot did not consider these facts to create an inference of motive affecting LaVerdiere's credibility. LaVerdiere has been told that whether his temporary job will become a permanent one depends upon the outcome of this case. In January of 1994, LaVerdiere, who was not at that time a unit member, was concerned with and involved in questions concerning prospective health benefits issues which are anticipated to arise, with respect to unit-member full-time officers, upon contract expiration in June of 1994. -37- subsequent interview with him at which Canelli was present.16 The parties' collective bargaining agreement provides for a "hearing" on request.17 There is no evidence that a hearing was ever requested or refused. During the Shaw matter in 1992, the Town Council determined, without explanation, that a hearing was required at the time of dismissal. Although Article 33 of the contract addresses complaints against police officers, we find that Article 33 and Rule Number 1-11 apply to circumstances not involved in this case. Article 33 and Rule 1-11[fn]18, concern complaints which pertain to conduct impacting the accomplishment and public perception of the accomplishment of the department's law enforcement mission, and not matters of employee discipline common to most employment relationships. On February 11, 1993, the mediator sent the parties a notice of mediation which states: Confirming my telephone conversations with you yesterday, I have scheduled a mediation session for the purpose of seeking a settlement of the labor dispute involving the police unit employees of the Town of Fairfield. The mediation session will be held on Friday, February 19, 1993 commencing at 10:00 a.m. at the offices of the Maine Labor Relations Board, State Office Building Room 710, Augusta, Maine. Please inform the members of your party's police unit negotiating team of the scheduling of this session and their _________________________ 16The Discharge or Suspension Article of the parties' agreement provides that "the Town shall not discharge or suspend any regular employee without just cause." This article procedurally requires only notice in writing of both the discharge and the reason therefor. This article also provides that disciplinary action or measures shall include Oral Reprimand, Written Reprimand, Disciplinary Probation, Suspension and Discharge. No mention is made of demotion. 17Article 32 of the parties' agreement, entitled Employee Rights, provides that, in internal investigations respecting unit employees, "[a]n employee shall have the right to a private or public hearing, if he/she so desires." There is no evidence of the nature of the hearing which this provision insures other than that it may be public or private at the employee's option. 18See footnote 5 for the pertinent provisions of Rule 1-11. -38- continuing obligation to participate in good faith in required mediation procedures. The parties met again on February 19. Pouliot unsolicitedly announced that if anyone wanted to attend from the unit, he would cover their shift and made a special effort to do so. Pouliot was not a usual participant in negotiations; however, he attended portions of the January 29 session as a resource person respecting overtime and he also attended a portion of the February 19 session. The Town's proposals submitted at the beginning of the day's negotiations on February 19th, contained a number of items which did not find their way into the parties' agreement. During the parties' February 19, 1993, session, the Town "backed-off" its proposed language respecting a number of contract issues. During discussion of the issue of retroactive insurance payments at the February 19 meeting, the Town Manager referred to an "insurance deal that John Emery had worked out." The Teamsters' position on the 19th was for 100 percent retroactivity. The Town's position coming in on the 19th of February was that the parties split retroactivity. The proposal made by Emery on the 19th was that "we would split and that they would cover the first three months." During the course of that meeting, NNEBT was called and indicated no receipt of payment although the Town Manager stated that a check had been sent two weeks prior. On February 19 the Town went through its written proposal. The Teamsters counter-proposed changes in funeral leave language and a change in the amount of retroactive payment of insurance premiums. The Town caucused and agreed to the proposals and the Teamsters said "the agreement would be settled if in fact the Town would drop any charges against Officer Moen and some of his other officers who had been disciplined." The Town refused. Thereafter there were only informal negotiations. There is no evidence that the Town asked or demanded the Teamsters withdraw this request based on its permissive nature. There is no -39- indication of either the time of day, or the actual length of that day's negotiations, at adjournment of the February 19th session. Kempers perceived the only thing holding up the contract at the end of the day February 19, 1993, to be the dropping of the disciplinary proceedings against Moen. When Kempers said that contract issues and discipline issues were separate in her mind, Moen accused her of selling him down the river. A policy statement memo was issued by Pouliot on February 10, 1993, which, among many other things, banned the posting of union correspondence on the general bulletin board and limited any such posting to the union board in the locker room. The general bulletin board is restricted to police business such as memos from the Chief and is required to be read daily by FPD members. Negotiation dates, bid shifts and vacation requests under the contract are permitted to be posted on the general bulletin board. Emery reviewed the contract after the February 19, 1993, meeting to find out what was holding up the negotiations, found no remaining issues and then began asking, "Why haven't we signed a contract if there's [sic] no outstanding issues at this point?" Emery typed up his inquiry in this regard on the FPD word processor and, after securing the Chief's permission, posted it on the official or general FPD bulletin board, on February 22, 1993, along with a petition inviting unit members to sign-on in support of instructing the Teamsters to sign a contract based on the apparently-finalized negotiations. Emery discussed the petition with King before posting it. King signed the petition, as did Kempers. Jordan asked Frazee why Emery's petition was improperly posted. Frazee did not know. The next time he came to work, Farris found a note from Emery which said if he had a problem with the petition "complain to the Chief." Jordan and Emery spoke about Jordan's concern and Emery told Jordan the -40- Chief had authorized the posting of the petition. Farris signed the petition, then "whited-out" his signature. The posting was captioned with the 3/4 inch rhetorical heading, "What Contract Issues Remain?" The posted packet contained a five-page listing of "PROPOSALS FOR SETTLEMENT OF FAIRFIELD POLICE CONTRACT" which states, "BOTH UNION AND TOWN AGREED ON THE FOLLOWING PROPOSAL/ISSUES ON 2/19/93 IN AUGUSTA[.] UNLESS NOTED BELOW, ALL ARTICLES REMAIN THE SAME AS EXIST IN THE CONTRACT WHICH EXPIRED ON JUNE 30, 1992." The packet contains a memo, which states: TO: ALL UNION MEMBERS RE: POLICE CONTRACT I AM ENCOURAGING ALL MEMBERS TO SIGN THE ATTACHED FORM WHICH WILL BE SENT TO ERNEST CANELLI,III . IT WAS MY UNDERSTANDING AND THE UNDERSTANDING OF OTHERS THAT IF THE OUTSTANDING ISSUES WERE RESOLVED THAT WE WOULD IN FACT SIGN A CONTRACT. THE REMAINING ISSUES WERE RESOLVED ON 02/19/93 IN AUGUSTA,MAINE IN WHICH BOTH THE TOWN OF FAIRFIELD AND LOCAL #340 POLICE MEMBERS AGREED. SO, I HAVE TO ASK, "WHAT ARE THE ISSUES HOLDING UP THE SIGNING OF THE CONTRACT ?" ONE MUST UNDERSTAND THAT THE LONGER THE CONTRACT GOES UNSIGNED THE LESS MONEY YOU WILL BE BRINGING HOME WEEKLY. IT'S SIMPLE MATH. THIS IS NOT MEANT TO SELL ANYONE DOWN THE RIVER NOR IS IT MEANT TO HURT ANY ONE INDIVIDUAL. I THINK IT IS TIME TO FACE THE FACTS AND DO WHAT IS RIGHT. WE, AS EMPLOYEES ; HAVE NO BUSINESS OR RIGHT TO FIGHT OTHER PROBLEMS THAT MAY EXIST IN THIS TOWN . WHEN THIS "BATTLE" STARTED, IT WAS WITH THE UNDERSTANDING THAT IT WAS FOR A GOOD CONTRACT IN WHICH BOTH SIDES COULD LIVE WITH. I THINK WE HAVE REACHED THIS POINT. WE ALL KNEW THAT AT SOME POINT, THE TWO DEPARTMENTS WERE GOING TO HAVE TO SEPARATE. THAT POINT HAS NOW COME. THE MEETING THAT IS GOING TO TAKE PLACE 02/23/93 IS NOT GOING TO MAKE A DIFFERENCE. READ THE TOWN CHARTER. BESIDES, IT'S NOT A TOWN MEETING, IT'S A PUBLIC HEARING TO SEE IF IT SHOULD GO TO A TOWN MEETING WHICH IS NOT LEGAL IN THE FIRST PLACE.THE TOWN COUNCILORS ARE THE SOLE NEGOTIATORS REGARDLESS OF A TOWN MEETING AND VOTE . EVEN IF THE FACES SHOULD CHANGE COME MARCH 9, 1993 , YOU STILL HAVE THE SAME TOWN CHARTER! AT THIS POINT, I CAN ONLY SAY THAT WE ARE HURTING OURSELVES. The petition appended to the posted notice states: -41- FAIRFIELD POLICE CONTRACT DATE POSTED: 02/22/93 WE , THE UNDERSIGNED, REQUEST THAT ERNEST CANELLI, III ACCEPT THE PROPOSALS WHICH WERE AGREED UPON BETWEEN THE TOWN OF FAIRFIELD AND LOCAL #340 FAIRFIELD POLICE UNIT ON 02/19/93 IN AUGUSTA, MAINE. WE, THE UNDERSIGNED, FEEL THAT THE CONTRACT ISSUES HAVE BEEN RESOLVED AND ARE TO THE SATISFACTION OF THE MAJORITY OF THE POLICE UNIT MEMBERS. 1. /s/ John L. Emery 02/22/93 5. __________________________ 2. /s/ Jeanne C. Kempers 02/22/93 6. __________________________ 3. /s/ Thomas E. King 02/22/93 7. __________________________ 4. _____________________________ 8. __________________________ During negotiations, a petition with 800 signatures was sent to the Town in support of the negotiations positions of the FFD and FPD. A meeting attended by over 200 townspeople was conducted by the Teamsters to inform the townspeople of the Teamsters' negotiations goals. The Teamsters met publicly with the Town Council and the Manager to discuss "the issues that were causing the contract not to be signed." The Town presented its side of the issues. There was an attempt to get the Town to amend its charter to provide Town payment of health insurance premiums for unit members. Moen and Canelli attended a meeting with the Chief on March 10, 1993, at which Moen was given a letter of termination. Moen was not offered and did not ask for an opportunity to rebut any of the points in the letter at that meeting. Moen was not offered a formal evidentiary hearing or the opportunity to confront his accusers. The letter of termination states: To: Sergeant Gary Moen March 10, 1993 From: Chief John F. Pouliot Ref: Termination of employment As you know on February 10, 1993 I became aware that you had been tape recording my conversations with you, without my consent or knowledge, for some period of time. I began an investigation -42- process and placed you on leave with pay until my investigation was concluded. I have now concluded my investigation. Based on the results and findings, I have made a decision to terminate you from your position as a law enforcement officer with the Fairfield Police Department effective March 12, 1993. The reasons for my decision include: 1. You have tape recorded my conversations on numerous occasions for approximately two years without my knowledge or permission. 2. You have made dishonest statements about the extent and nature of the taped conversations during the course of my investigation. 3. You have played our taped conversations to other officers. 4. You have played our taped conversations to people outside the police department. 5. You have encouraged other department employees to tape me (and others), again without my knowledge or permission (or the knowledge and permission of the others who were taped). 6. You have made numerous derogatory comments to officers under your supervision about my character, honesty, and performance as a Chief of Police and as a law enforcement officer. You have misstated my positions and motivations. You have acted and spoken in ways that evidence your disrespect and disloyalty to me. The effect of your actions and comments has been to undermine my authority, my relationship with other officers, and the ability of other officers to trust and respect the administration. In addition, during the course of the investigation I have also learned that on at least two occasions you have violated basic law enforcement procedures. On November 7, 1992, you failed to back up Officer Laverdiere when he was dispatched to a gun call in which one party had been shot at by another person three times with a firearm. At first Officer Laverdiere could not reach you by radio. Once contact was made you asked if it was necessary for you to respond and that you would if he thought you were needed. Your failure to be in contact with Officer Laverdiere, and your reluctance to come to his aid in this critical situation violates the Fairfield Rules and Regulations and basic law enforcement policy. The second incident involves your discussions with a person outside of the department details of a sensitive domestic complaint involving a citizen of the Town of Fairfield. The party being informed had no part in, nor was he in any way involved in the investigation of this complaint. This violates the Fairfield Police Department Rules and Regulations. Any one of these actions, and all of them taken together, shows extremely poor judgement; disloyalty; failure to appreciate the responsibilities of your supervisory position; lack of attention to law enforcement procedures and responsibilities; and a disregard for the well-being, efficiency and morale of the department. Based on what I have concluded as a result of my investigation I believe that our ability to work together and my ability to rely on you and trust you as a member of this -43- department, whether as a patrol or command officer, has been damaged beyond repair. I have considered other less extreme measures but have concluded that, in light of both individual incidents and the total picture of your conduct, I have no choice but to terminate you. /s/ John F. Pouliot John F. Pouliot Chief of Police cc: Town Manager Files Pouliot kept the door open during the delivery of the termination letter. LaVerdiere was sitting in the room outside Pouliot's office. Pouliot was required to have and did obtain the approval of the Town Manager in Moen's termination. The Town charter states as follows regarding termination authority: SECTION 208. DEPARTMENT HEADS Department Heads with the advice and consent of the Town Manager and Town Council, shall have the authority to hire personnel within their departments. Department heads shall also have the authority, with the approval of the Town Manager, to suspend or discharge for just cause. These department heads are: the Police Chief, Public Works Superintendent, Fire Chief, and any other department head the Town Council may create. Pouliot's decisions respecting the Moen discipline were his own and he was not pressured or influenced by either the Town Council or the Town Manager. Moen grieved his termination, beginning at the third, or Town Council, step.19 Emery was promoted to Acting Corporal at some time after his _________________________ 19The parties' agreement contains a Non-Discrimination Article which prohibits discrimination by the Town "against an employee because of any employee's lawful activity and/or support of the Union." Moen voluntarily abandoned the grievance/arbitration procedure, after having had one day of arbitration, in order to obtain review by the Board. All other employees' grievances arising out of the taping were abandoned as well. -44- interview with Pouliot. He receives no addition pay in that capacity. Pouliot stated to Reverend Scott Demers and Robert Runshe, who visited Pouliot to determine why Moen had been terminated, that he was unable to share the information but that it was due to the "tape recordings themselves." The Chief made reference to an SOP but when they asked to see the rules the Chief said the SOPs were confidential to the department. Pouliot characterized Moen as a "Rambo type" and said things might have turned out differently had Moen been more remorseful. Shortly after Moen's suspension, Emery was promoted to Corporal and Whitney was regularly scheduled for 40 hours a week. The Chief's recollection of the conversations which were alleged to contain coercive admonitions of loyalty, differed from that of Kempers, Tucker and Farris. The Chief's recollection was that he was endeavoring to obtain truthful testimony during the investigation and was concerned about the work performance of his staff. Wing prepared a written agreement20 and on March 12, prior to a scheduled March 18th fact finding, Canelli agreed. The contract was signed March 18. The parties' eventual contract specifies that the Town pays the entire cost of insurance for the first three months of the contract and that thereafter the Town's share of the contribution shall be $364.14 per employee per month. _________________________ 20Wing wrote Canelli respecting the proposed agreement on March 12, 1993, as follows: Please find enclosed the revised contract for the Fairfield Police Unit. The revision incorporates the Town's offer to the unit made on February 19, 1993, and reviewed by you during our telephone conversation on March 12, 1993. Please sign the enclosed contract and present it to the Town as soon as possible in order that we may cancel the pending fact- finding. -45- King does not believe he was coerced by the Town during the course of negotiations. King noticed no difference in unit morale after Moen's termination. King also did not notice a change in the attitude of the bargaining unit toward the union as a result of the discipline of McInnis, Jordan and Moen. Kempers unspecifiedly "felt" Moen was treated "a little unfairly" and that there was a "conspiracy . . . to get rid of him." Pouliot, Frazee, Whitney, Emery and LaVerdiere had meetings on unspecified occasions during which the Chief's door was closed. DISCUSSION Upon consideration of the entire record in this matter we find that Pouliot did not dismiss Moen either on the basis of Moen's protected activity, or in furtherance of obtaining accelerated contract closure on more favorable terms. We find that Pouliot dismissed Moen because he believed that Moen had repeatedly, surreptitiously and improperly recorded their official conversations, because he believed Moen had improperly played portions of those tape recordings for others and because he believed Moen had improperly and successfully urged a number of his subordinates to engage in similar misconduct. We find that Pouliot considered these actions by Moen to constitute gross personal insubordination and that Pouliot concluded that the same actions engendered a virulent disloyalty among Moen's subordi- nates. Pouliot dismissed Moen because their mutual trust had become impossible and because Pouliot believed Moen was unfit for continued law enforcement work at the FPD. We also find that the four-day suspensions of unit members Jordan and McInnis were based on the Chief's disapproval of their tape recording and not upon any protected activity; and that McInnis was additionally suspended and reprimanded for improper conduct during the Moen investigation, unrelated to any protected activity. We do not find that the Teamsters insisted to the point of -46- unlawful refusal to bargain, upon Town agreement to its permissively negotiable proposal that the Town abandon disciplinary procedures which had been initiated against Moen and other employees. We do find that the Town unlawfully circumvented the exclusive collective bargaining agent by engaging in impermissible direct dealing when it facilitated alternate shop steward Emery's errant convening of an ostensibly "informational" or "clarification" meeting between rank and file unit members and representatives of management, at which participants engaged in the discussion of contract proposals. Beginning first with the Teamsters' allegation of discriminatory conduct aimed at coercing employees in negotiations, we shall now discuss these three areas and explain the rationale supporting our findings in each. Coercive and Discriminatory Disciplinary Procedures We do not exercise general appellate jurisdiction over the personnel decisions of public sector entities, such as the FPD, which otherwise fall within our remedial labor relations jurisdiction. We do, on the other hand, examine disciplinary actions where, as here, the disciplinary procedures used are alleged to be highly irregular and the disciplinary measures imposed on union members and stewards are alleged to be so out of proportion to the offense committed that they are alleged to give rise to an inference that the punishments imposed are discrimina- tory and aimed at obtaining closure of negotiations on terms more favorable to the employer. The Teamsters' complaint does not specifically refer to 26 M.R.S.A. 964(1)(B) (1988) in its citation of statutory proscriptions violated and does not allege discriminatory discipline independent of its charge that the Town engaged in unlawful discrimination as part of an overall scheme to affect negotiations. However, the complaint sufficiently alleges the use of discriminatory disciplinary procedures as the major tactic -47- of an allegedly unlawful Town negotiations scheme, to afford the Town notice and the opportunity to defend.21 We apply the so-called Wright Line analysis announced by the NLRB in the case Wright Line and Lamoureaux, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), and approved by the United States Supreme Court in the case NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), in adjudicating allegations of discriminatory discharge. Our most recent reiteration of our adherence to the Wright Line standard is contained in the case Teamsters Union Local #340 v. Rangeley Lakes Region, No. 91-22, slip op. at 17, 14 NPER ME- 23005 (Me.L.R.B. Jan. 29, 1992). In Rangeley, (quoting Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 10-11, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986)), we stated: Since its initial adoption in Holmes v. Town of Old Orchard, MLRB No. 82-14 (Sept. 27, 1982); aff'd sub nom. Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Ass'n., York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983), we have consistently applied the National Labor Relations Board's (NLRB) "Wright Line" test in the "dual motive" disciplinary context. Ritchie v. Town of Hampden, MLRB No. 83-15 (July 18, 1983), aff'd sub nom. Town of Hampden v. Maine Labor Relations Board, Penobscot Super. Ct., Docket No. CV- 82-407 (Sept. 14, 1984). Our use of the "Wright Line" [standard] in "dual motive" cases arising under the parallel section of the State Employees Labor Relations Act, 26 M.R.S.A. 979-C(1)(B), has been approved by the Supreme Judicial Court. Maine State Employees Ass'n. v. State Development Office, 499 A.2d 165, 168- 169 (Me. 1985). Subsequent to the Board's adoption thereof, the Supreme Court of the United States affirmed the NLRB's use of the "Wright Line" test. _________________________ 21Ironically the Town's counterclaim against the Teamsters for refusal to bargain charges a violation of "26 M.R.S.A. 964- 1E and 965-1" rather than of 26 M.R.S.A. 964(2)(B) (1988). Additionally, no violation of Section 964(2)(B), was argued, under that specific statutory citation, in the Town's posthearing briefs. The Board has nevertheless considered the Town's complaint and proof to sufficiently address Section 964(2)(B). -48- Mr. Justice White, writing for a unanimous Court, . . . outlined the "Wright Line" test as follows: The Board held that the [Complainant], of course, had the burden of proving that the employee's conduct protected by [Section 963] was a substantial or a motivating factor in the discharge. Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of Sections [964(1)(A) and (1)(B)] by proving by a preponderance of the evidence that the discharge rested on the employee's unprotected conduct as well and that the employee would have lost his job in any event. It thus became clear, if it was not clear before, that proof that the discharge would have occurred in any event and for valid reasons amounted to an affirmative defense on which the employer carried the burden of proof by a preponderance of the evidence. NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103 S.Ct. 2469, 2473, 76 L.Ed. 2d 667 (1983) (footnotes omitted) [sections of Maine Municipal Law substituted for parallel sections of National Labor Relations Act], cited and adopted by the Board, Ross v. Portland School Committee, MLRB No. 83-04, at 19 (Aug. 29, 1983). Employing this standard, we must first determine whether the Teamsters have satisfied their initial burden of showing that anti-union animus spurred Pouliot's dismissal of Moen. Shouldering this initial burden of proving anti-union motivation is critical because: [T]he NLRA [like the MPELRL] proscribes only terminations that are motivated by the [employee's] union activities. Avecor, Inc. v. NLRB, 931 F.2d 928 (D.C. Cir. 1992), cert. denied, ___ U.S. ____, 112 S.Ct. 912, 116 L.Ed 2d 812 (1992). Thus an employer does not violate the Act by firing a union member; nor may an employee shield himself from all possibility of termination merely by becoming a union activist. Synergy Gas Corp. v. NLRB, 19 F.3rd 649, 652 (D.C. Cir. 1994). There is no dispute that Moen and McInnis engaged in protected -49- activities and that the Town had knowledge thereof.22 The first real inquiry under Wright Line, therefore, is whether substantial competent evidence in the record establishes that anti-union animus was a motivating factor in Moen's termination and in Pouliot's discipline of McInnis. As is more fully explained below, we find that the Teamsters have failed to discharge this initial burden. The Board does not possess jurisdiction to adjudicate causes of action based on the alleged constitutional insufficiency of the due process afforded public employees in disciplinary matters. However, the Board is not prohibited from drawing varying degrees of inference of pretext where the process afforded either does not attain, or attains only the lowest ranges of that process reasonably considered due. We may also draw an inference of pretext where contractual or rule- established procedures are substantially disregarded. Upon review of the record we draw no such inferences. The Teamsters have established no denial of due process or disregard of any requirement that the Town provide Moen a full-blown evidentiary hearing, either prior to discharge or to suspension. Moen maintains that he was never given a reason why his taping was improper and that no rule violations were ever alleged to have occurred. The evidence establishes that the Chief adequately notified Moen that he construed Moen's taping, tape playing and urging of subordinates to tape to constitute serious misconduct. Moen did have adequate notice on February 10, 1993, of the Chief's conclusion that his secret taping was a serious offense and that a very thorough investigation was being conducted by the Chief. Moen admitted during the investigation that he had played his secretly-made tapes for people outside the _________________________ 22The record does not establish protected activity on Jordan's part other than union membership and general support. -50- FPD and that he had encouraged other department employees to secretly tape the Chief as well. Finally, Moen was given the opportunity to be heard by the Chief in a March 1, 1993, meeting at which he was accompanied by Canelli, his union representative. There is no evidence that at this meeting Moen was denied the opportunity fully to be heard respecting either his taping, his tape playing, or his encouragement of taping by subordinates. Moen was on paid leave for a one-month period prior to his ultimate discharge and possessed an adequate opportunity to prepare and submit a written response during the nine days after the March 1, 1993, investigatory meeting. Moen's post- termination grievance/arbitration rights were voluntarily and knowingly waived in lieu of proceedings before this Board.23 Accordingly, we find no suspicious violation of pretermination due process. We conclude that the additional reasons listed in Pouliot's letter of termination to Moen played an insignificant part in the Chief's decision to discharge Moen. In other circumstances we might accord more significance to the fact that Pouliot's letter of termination does not reference Category III offenses or provisions of the Job Description, or to the further fact that the termination letter faults Moen for additional matters either transpiring during or unearthed as a result of the investigation. In light of the tendency of these parties always to litigate their disputes and to do so in the press as well as in many other forums, we consider the vagueness of the fault-finding to be tactically aimed at sustaining the discipline on any grounds and the surplusage to be gilding of the lily. We find that Pouliot terminated Moen because Pouliot _________________________ 23The Town participated in the scheduled first day of the Teamsters' requested arbitration procedures and vigorously attempted to convince the Superior Court and the Board to defer action before the Board, to completion of these proceedings. -51- believed that Moen's tape recording, tape playing and his encouragement of taping by subordinates indicated that he was unfit for law enforcement work at the FPD. We also find that McInnis and Jordan were not discriminatorily disciplined. We conclude that neither the procedures used nor the disciplinary measures imposed on Moen, McInnis and Jordan give rise to an inference of improper anti-union motive. Upon careful consideration of the testimony given during the six days of hearing in this matter, we find no credible or persuasive evidence upon which to base a finding that either anti-union animus or coercion in negotiations was a motivating factor in any of the complained-of discipline. We therefore find that the Teamsters have failed to shoulder their initial burden under the Wright Line standard and that the Teamsters' prohibited practice charges arising out of the tape recording/playing discipline must be dismissed. Moen secretly taped the Chief then shared the tapes he had improperly made with individuals other than Canelli. He urged subordinates to tape the Chief and denied taping during the investigation. Pouliot was justified in terminating Moen because Moen failed to meet the higher standard of conduct that Pouliot expected of his command-supervisor of patrol. It is an unduly complicating arrangement for a supervisor to serve as a steward, unless the parties have devised an agreement upon a method of clear identification of the capacity in which a steward/supervisor is performing at any one time. Moen never notified the Chief that any of their conversations were solely in his steward capacity. During all of the material times in this case, the Chief had the right, in the absence of such notifica- tion to conclude that Moen was performing the supervisory duties for which he was being paid. Unfortunately, Moen was not performing the job he was being paid to do and deserved to be fired. The Chief possessed just cause for suspending the other taping patrol officers. In light of these findings we are statutorily prohibited from ordering reinstatement or back pay by -52- virtue of the provisions of 26 M.R.S.A. 968(5)(C) (1988). Retaliation We find no record evidence supporting a violation of 26 M.R.S.A. 964(1)(D) (1988), which prohibits discrimination against employees who participate in protected Court, Board and grievance/arbitration proceedings. See Teamsters Local Union No. 48 v. Town of Kittery, No. 84-25 slip op. at 5, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984). We find that Pouliot's admonitions of loyalty, without more, constitute warnings by the Chief that untruthful statements in favor of Moen would be considered disloyalty to the department. We find as a matter of fact that Pouliot's remarks neither coercively urged untruthfulness in support of a sham investigation nor had a reasonable tendency to interfere with the exercise of protected activity in violation of 26 M.R.S.A. 964(1)(A) (1988). Moreover, because it is not sufficiently clear whether they were made during the initial investigation, in preparation for arbitration or prior to proceedings before the Board, we are precluded from finding a violation of 26 M.R.S.A. 964(1)(D). This portion of the Teamsters' complaint must also be dismissed. Direct Dealing In Teamsters Union Local 340 v. Aroostook County Sheriff's Department, No. 92-28, slip op. at 22 (Me.L.R.B. Nov. 5, 1992), we stated: [T]here is no blanket prohibition against direct communications between employers and employees. "It is, of course, a venerable principle of labor law that "an employer acts in bad faith and violates the Act by dealing directly with its employees concerning their working conditions at a time when they are represented by an exclusive bargaining representative.'" MSEA v. Bangor Mental Health Institute, No. 84-01, slip op. at 6, 6 NPER 20-15004, (Me.L.R.B. Dec. 5, 1983), citing Farm Crest Bakeries, 241 N.L.R.B. 1191, 1196-97 (1979). -53- "The injury suffered by the bargaining agent when the employer deals directly with represented employees is 'not that flowing from a breach of contract [but] to the union's status as a bargaining representative.'" Id. at 7, citing C & C Plywood Corp., 163 N.L.R.B. 1022, 1024 (1967), enforced, 413 F.2d 112 (9th Cir. 1969). Quoting Allied Signal, Inc., 140 LRRM 1121 (May 29, 1992) the Board went on to state in Aroostook County that direct dealing "need not take the form of actual bargaining. . . . the question is whether an employer's direct solicitation of employee sentiment over working conditions is likely to erode 'the Union's position as exclusive representative.'" The evidence establishes that the Chief and the Town Manager initiated contact with Emery and encouraged him to assemble the unit so that they could be told that the Town had offered five and not three days of overtime first refusal. If the Town truly had only been concerned with clarifying confusion over a mistake in the number of days in the Town's last overtime position, it might more advisedly have called or faxed a clarification message to Canelli, the chief negotiator, or requested that Moen coordinate with Canelli to confirm the matter with the mediator. It is pretextual to assert that need for a sit-down meeting between unit members, the Chief and various Town officials was indicated. Moreover, the February 4th meeting was conducted during the workday, at the work site and in spite of Town knowledge of the obvious disapproval of the chief steward, who was also an assistant on the Teamsters' bargaining team. During the meeting the Town entertained a health insurance proposal from Emery, indicating that the proposal had merit and that something could be worked out. The Town further demonstrated its disregard of the exclusive agent by discriminatorily granting Emery permission, in contra- vention of a written union-matter posting ban memorializing past practice, to post a memorandum and petition on the official -54- bulletin board, encouraging unit members' assent to contract closure by the bargaining agent on terms outlined. These actions reasonably tended to and did in fact erode the Teamsters' status as exclusive representative and constitute unlawful interference with protected rights in violation of 26 M.R.S.A. 964(1)(A) (1988). The Domination Charge Although we have found that the Town did engage in direct dealing with members of the bargaining unit, we think our finding of a violation of 26 M.R.S.A. 964(1)(A) (1988), based on direct dealing, sufficiently addresses the Town's conduct in this regard. Assistant steward Emery misunderstood his authority to engage in collective bargaining with the Town, was vulnerable because of his anxiety over the financial aspects of the health insurance issue and naively benefited from the accomodative efforts of the Town, which appeared to be equally as interested as he in having the contract finalized. Although these circum- stances contributed to the occurrence of the direct dealings we have found herein, we find no evidence in the record sufficient upon which to conclude that the Town has dominated or interfered with the formation, existence or administration of any employee organization in violation of 26 M.R.S.A. 964(1)(D) (1988). As we have stated on occasions too numerous to mention, the prohibition in section 964(1)(C) "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby potentially dominating it." Teamsters Local 48 v. City of Calais, No. 80-29, slip op. at 5, 2 NPER 20-11018 (Me.L.R.B. May 13, 1980). Teamsters Union Local No. 340 v. County of Somerset, No. 94-34, slip op. at 14 (Me.L.R.B. Apr. 14, 1994). This portion of the Teamsters' complaint must, therefore, be dismissed. -55- Unlawful Insistence on Permissive Subject It is axiomatic that one party to negotiations may not refuse to bargain over mandatory subjects in an attempt to secure the other's agreement on a proposal respecting a non-mandatory bargaining subject. The Teamsters do not dispute the permissively negotiable nature of their proposal respecting the dropping of discipline against employees who had taped the Chief. The Teamsters also do not dispute that their proposal was that the Town could consider the contract finalized, on the basis of agreements reached in negotiations to that date, if the disciplinary procedures were agreed to be withdrawn. The question then becomes whether insistence on the permissive subject was the basis for arriving at or of a prolongation of impasse between the parties. In the circumstances we think it was not. The mere offer of a permissively negotiable proposal does not constitute a per se violation. Additionally, the record does not clearly establish that the Teamsters failed, upon request, to remove their permissive proposal from the table, see Oxford Hills Teachers Association v. MSAD No. 17, No. 88-13, slip op. at 27 (Me.L.R.B. June 16, 1989), or to reduce, upon request, the parties' agreements to writing for ratification. Insistence upon the permissive proposal was not the cause of a negotiations impasse. The parties were in mediation and the Town had a fact- finding petition pending before the Board. "Informal" negotiations apparently continued between Canelli and Wing after February 19th resulting in a finalized agreement only three weeks later, on the date of the scheduled fact finding. The contract which Canelli agreed to contained terms identical to those upon which the parties reached agreement before the end of the February 19th mediation session. In the totality of the circumstances, including the failure of the Town to insist upon removal of the Teamsters' proposal, -56- both parties continued participation in negotiations after the February 19th session, resulting in a fairly quick agreement, and considered against the backdrop of the Town's unlawful direct dealings, we are convinced that the Teamsters' permissive proposal did not unlawfully prolong collective bargaining negotiations in this case. The Town's counter-complaint of unlawful refusal to bargain must therefore be dismissed. We do not find the award of attorney's fees or of costs to be appropriate in this case. 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 & Supp. 1994), it is hereby ORDERED: 1. That the portions of the Teamsters' complaint which allege violations of 26 M.R.S.A. 964(1)(C), (D), and (E) (1988) be and hereby are dismissed. 2. That those portions of the complaint which allege violations of 26 M.R.S.A. 964(1)(A) (1994) based on Town conduct other than direct dealing with unit employees during contract negotiations be and hereby are dismissed. 3. That the Town's allegation of refusal to bargain in violation of 26 M.R.S.A. 964(2)(B) (1988), be and hereby is dismissed. 4. That the Town, its representatives and agents shall cease and desist from interfering with, restraining or coercing bargaining unit employees within the meaning of 26 M.R.S.A. 964(1)(A) (1988), in violation of rights guaranteed by the MPELRL, by dealing directly with employees during collective bargaining negotia- tions. -57- Issued at Augusta, Maine, this 5th day of December, 1994. The parties are hereby advised MAINE LABOR RELATIONS BOARD of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1994), to seek review of this decision and order by the /s/___________________________ Superior Court. To initiate Peter T. Dawson such a review, an appealing Chair party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision /s/___________________________ and order, and otherwise Howard C. Reiche, Jr. comply with the requirements Employer Representative of Rule 80C of the Maine Rules of Civil Procedure. Employee Representative George W. Lambertson files a separate opinion, concurring in part and dissenting in part. OPINION I dissent. I agree with the majority that the Town engaged in unlawful direct dealing and that the Teamsters did not unlawfully condition contract closure upon agreement on a non- mandatory subject. I also agree with the majority's disposition of the Teamsters' domination and retaliation charges. However, I think the Chief's conduct and discipline, levied against Moen and the other employees who taped their conversations with him, was discriminatory and aimed at putting unlawful pressure on the members of the unit during negotiations. I find that the Town suspended Moen for the coercive purpose of finalizing a contract on terms favorable to the Town. I also find that the Town was well aware of the division within the Teamsters' ranks and that it terminated Moen for the purpose of permanently undermining the organizational effectiveness of the Teamsters local. Moen is a supervisor who possesses, by virtue of 26 M.R.S.A. 966(1) (Supp. 1994), the same collective bargaining rights -58- granted generally to public employees under the MPELRL.24 A unit description including the Sergeant position in the unit is contained in the parties' '89-'92 and '92-'94 agreements.25 As a member of the unit, Moen possesses the statutorily protected right to serve in the position of local chief steward, to which he was elected by fellow unit/union members. Although both the right of the unit to have Moen as its steward and his right to serve are statutorily protected, a bargaining unit which makes its only supervisor member its chief steward sets the stage for extraordinary and unnecessary difficulty for both the employer and its chief steward. However, even this complication, over which the employer has no control or even permissible influence, does not excuse the conduct of the Town or the Chief in this case. Allegations of discrimination based on protected status are among the most difficult of prohibited practice cases to prove. They are almost never proven by confession of the alleged bad actor and are rarely proven through the testimony of employees willing to put themselves at personal risk of reprisal by testifying to circumstances which, in themselves, establish the alleged bad actor's violation. This case is no exception. Chief Pouliot maintains steadfastly that he has not unlawfully discriminated against Moen. Determination of whether his termination of Moen violates the MPELRA must therefore be made solely upon consideration of circumstantial evidence and reasonable inferences arising therefrom. _________________________ 24Supervisors are expressly excluded from collective bargaining rights under the National Labor Relations Act. 25The position of Sergeant was determined to be appropriately included in the FPD Patrol unit in a unit determination report dated January 3, 1978. The position of Sergeant was originally agreed appropriately to be included in the FPD patrol unit by written agreement of the parties filed with the Board on July 20, 1978. -59- It cannot be argued that Moen's suspension and eventual termination transpired in an atmosphere of generalized anti-union animus. The majority has found, and I concur, that the Town was engaged in unlawful direct dealing with unit employees in circumvention and denigration of the exclusive collective bargaining agent. It is unfortunate that in Fairfield's Police Department the employees are so distrustful of the Chief that they feel compelled to record him in union and personnel matters. The widespread taping of Pouliot during personnel transactions by so many employees indicates to me that there is general concern with his trustworthiness. Where there is this much smoke there is bound to be fire. It is certainly a protected matter of mutual aid and protection to have an accurate record of personnel matters where there are such concerns. The recordings at issue here do not violate the law generally, any direct order of the Chief, any Rule or Procedure of the FPD, or any proscription contained in the Sergeant's job description.26 This is also not a case involving Chief Pouliot's personal privacy rights. Pouliot when at work is not only a public official; he is a law enforcement official, a Chief of Police, not a member of the secret service. With very few specific exceptions, nearly all of which are statutory, everything he says and does is and should be within the public domain and subject to complete public scrutiny. No one has contended that Moen disclosed criminal investigatory facts or statutorily confidential FPD personnel matters outside the FPD. _________________________ 26There is no evidence that Pouliot ever told Moen, even in the March 10, 1993, termination letter, that Pouliot considered the taping or the tape playing to violate provisions contained in the Sergeant's job description; or that the taping, tape playing or his urging of subordinates to tape constituted a Category III offense under any provision of Rule and Regulation Number 1-10 V.B.3. -60- No individual who was deposed by Pouliot in his extensive investigatory process ever informed Pouliot that Moen had played tapes relating to any matter in which the individuals for whom the tapes were played had no legitimate interest. There is no evidence establishing that tapes played in the presence of FFD members concerned any matter in which they had no legitimate interest, in light of joint FPD/FFD negotiations. Canelli has a statutorily recognized interest in all terms and conditions of employment of FPD unit employees. Farris' wife was present at the playing of Moen's recording of Pouliot's admonitions to Moen about the quality of Farris' log book. She certainly has a pecuniary interest in her spouse's continued employment. Other than this, there is no evidence of the revelation by Moen of any portion of recorded conversations involving Pouliot. Even the thin reed of the job description's reference to nondisclosure of private communications permits revelation to those with a need to know. Pouliot had no reasonable expectation of privacy in his public, on-the-job conversations with Moen. No unattended electronic eavesdropping or bugging is alleged here. Obviously, because Moen was always present, Moen's recordings contained no material which Pouliot had not already disclosed orally to Moen. Except for purposes of plausible deniability, there is no greater purpose to be served in advancing a greater expectation of privacy regarding tapes, than that which exists respecting the oral statements to Moen which the tapes memorialize. The familiar question "what are you afraid of if you have nothing to hide?" springs easily to mind here. There is no proof that Moen revealed legitimately-characterized non-public facts to anyone who didn't have a need to know them. There is also nothing in the record which indicates that the trust which Pouliot reposed in Moen with respect to his oral statements made in Moen's presence was not as faithfully kept by Moen with respect to the tapes. -61- Pouliot immediately suspended McInnis without pay for four days at the beginning of the investigation, on February 11, 1993, for mentioning that he had unspecifiedly told Moen of the occurrence of his interview. There is no evidence that Pouliot attempted to determine the nature of any disclosure by McInnis to Moen and there is no allegation that mere knowledge by Moen that others were being questioned compromised the investigation. How can unit employees freely exercise their individual or collective MPELRL rights if they cannot freely consult with fellow unit members or their union steward? Moreover, because McInnis denied making photocopies on the evening of February 10, 1993, Pouliot, on February 11, issued a reprimand to McInnis based solely on Frazee's statement that he had witnesses to McInnis' off-duty violation of an apparently discriminatory rule prohibiting photocopying of only "union materials." This is so, although Tucker, who was present, told Frazee that McInnis had not made photocopies. Such immediately contingent punishment of McInnis, a union employee who had come to the station off-duty for the purpose of obtaining materials from the union's drawer for use by Moen in a grievance concerning his termination, can only have had a telegraphic effect on unit members. Pouliot's statements to individuals requesting union representation, as well as the investigatory methods he employed, were inconsistent with employees' representational rights and further indicate anti-union animus.27 Pouliot told employees that _________________________ 27McInnis and Jordan were orally ordered on threat of discipline to provide written statements concerning their previous day's testimony during the investigation. Pouliot made a general statement in his office, in Tucker's presence on an unspecified occasion, that, in general, department employees need to remember where their paychecks come from. Pouliot told Farris that he could not "be a fence sitter, that he should "remember who [his] friends are and who pays [his] paycheck" and that his "loyalty is with the department." Kempers was told by the Chief, "people seem to think that Gary Moen is the employer around here . . . remember who to be loyal to." Kempers considered Pouliot's -62- they were required to fully cooperate in the investigation, forbade them from discussing the investigation or their interviews with anyone, admonished them that disciplinary measures would result from any untruthfulness, told them they were not entitled to union representation during questioning-- purportedly concerning another employee's alleged misconduct--and then asked them if they themselves had taped the Chief or played any recordings made of him to others.28 Such conduct is inherently coercive and has a reasonable tendency to chill the exercise of protected rights. Moreover, Pouliot conducted a fishing expedition by asking employees, during his interrogations concerning Moen's taping activities, whether there were any other matters he ought to know about. Part-time reserve officer LaVerdiere, next on the hiring list and the employee who stood to gain the most by Moen's termination--whose long range planning is exemplified by his present involvement in unit matters which will only affect him if Moen's termination is upheld--supplied two unrelated past incidents which found their way into Pouliot's letter terminating Moen. Pouliot never questioned Moen or any other person who witnessed these alleged incidents. The expanded scope of the dragnet and the numerous additional reasons Pouliot based the termination on in his letter to Moen29 indicate that Pouliot was locked-on disciplining Moen and was attempting to obtain any _________________________ statements to constitute a "little" threat. Pouliot does not deny these statements, he merely tries to put an evasive spin on them. 28This was not a criminal matter respecting which employees could constitutionally refuse to incriminate themselves. 29Moen did not have notice of any of the asserted additional reasons for Pouliot's termination decision. Moen had no notice of Pouliot's conclusion that Moen's alleged improper disclosure of medical information and alleged unsatisfactory shots-fired response violated FPD Rules and Regulations. -63- other bolstering circumstances. Dismissal is the equivalent of economic capital punishment. I think the punishment of dismissal is so far out of proportion to the tape recording and tape playing activity of Moen in this case that a strong inference arises of pretext by the Town.30 Although the contract's disciplinary procedure does not specifically list demotion as a permitted form of discipline, the contract does incorporate the Town's work rules by reference. Demotion is specifically listed as a progressive disciplinary step in Rule 1-10, which limits demotion as a measure which "only appl[ies] to the Sergeant or senior police officer." Pouliot stated that he held Moen to a higher standard because of his supervisory authority and that his trust in Moen as a second-in- command of patrol had been irretrievably lost. If Pouliot wished to administer discipline to Moen consistent with that given to the other employees who taped or intended to address deficiencies in Moen's conduct, performance and supervisory capacity so that they all might have been corrected, he would, in all likelihood, have demoted Moen and given him a combination of more tailored disciplinary measures, as he did with McInnis who received two separate four-day suspensions and a separate reprimand ostensibly for different infractions. I think Pouliot used the tapings as a pretext to discharge Moen. Moen, a zealous steward, had been successful in several grievances against Pouliot. Moen had vociferously opposed the Town's attempt, with Emery and Kempers' unwitting help, to undermine the cohesiveness of the unit in negotiations and to undermine the exclusive status of the bargaining agent, during unlawful direct dealings. Undoubtedly, both for Moen and the other unit employees, _________________________ 30The Board does not possess the jurisdiction to involve itself in questions of whether an employer has been just to its employees unless it determines that an injustice is based on protected union activity. -64- Moen's termination will have the most persistent coercive, restraining or interfering effect. However, the investigatory methods employed by Pouliot were even more acutely coercive of employees respecting acceptance of the Town's contract proposals. The investigation occurred during the final throes of collective bargaining, involved nearly every member of the FPD and resulted in the purportedly investigation-related suspension and reprimand of McInnis. I conclude that Pouliot imposed the four additional taping-related suspensions, which substantially affected only Jordan and McInnis as full-time employees, solely for the sake of consistent appearance of extreme disapproval of taping. See generally Holmes v. Town of Old Orchard Beach, No. 82-14, slip op. at 12-13, 6 NPER 20-14034 (Me.L.R.B. Sept. 27, 1982). Finally, while I agree with the majority that, with respect to the admonitions of loyalty by Pouliot, a violation of 26 M.R.S.A. 964(1)(D) (1988) is precluded because it is unclear whether the admonitions were made during the investigation, prior to the arbitration or prior to the present Board proceedings; I think they were made explicitly for the purpose of and had the reasonable tendency to coerce employees, in violation of 26 M.R.S.A. 964(1)(A) (1988), into rendering evidence unfavorable to Moen. I don't accord a significant difference in the unlawfully coercive effect, to depend upon whether the aim was to impose or to sustain discipline, which I find to be both unlawfully motivated and imposed. I would rescind the Town's termination of Moen, order back pay and vacate all other disciplinary measures which resulted from the taping and the investigations thereof. I would also require the Town to pay the Teamsters' costs and representational fees and to incur the Board's expenses for this entire proceeding. The Town's conduct was a blatant violation of the -65- MPELRL and its counter-charge of unlawful bargaining to impasse on non-mandatory subjects is a make-weight. Issued this 5th day of December, 1994, by: MAINE LABOR RELATIONS BOARD /s/___________________________ George W. Lambertson Employee Representative -66-