STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 99-17 Issued: November 22, 1999 ______________________________ ) SUSAN OUELLETTE, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) CITY OF CARIBOU, ) ) Respondent. ) ______________________________) Ms. Susan Ouellette filed a complaint with the Maine Labor Relations Board on March 19, 1999, wherein she alleges that comments made to her by Chief of Police Arthur N. Gorney violated 26 M.R.S.A. 964(1)(A) of the Municipal Public Employees Labor Relations Law (the "Act"), and that City Manager Richard C. Mattila's decision to terminate her violated section 964(1)(B) of the Act.1 Ms. Ouellette contends she was terminated from her position as dispatcher for the police department because she exercised her right to engage in activity protected by the Act. A prehearing conference was conducted by Chair Peter T. Dawson on May 28, 1999. The Prehearing Conference Memorandum and Order dated June 10, 1999, is incorporated herein and made a part of this Decision and Order. This matter was heard on July 1, 1999, before the Maine Labor Relations Board consisting of Chair Peter T. Dawson, Employer Representative Karl Dornish, Jr., and Employee Represen tative Gwendolyn Gatcomb. Complainant Ouellette was represented by Charles W. March, Esq., of the firm of Reben, Benjamin & March. The City of Caribou was represented by Clare Hudson Payne, Esq., of the firm of Eaton, Peabody, Bradford & Veague, _____________________ 1 The original complaint was amended at the prehearing conference to include a section 964(1)(A) claim in connection with her termina- tion. [-1-] P.A. The parties were afforded full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make argument. The parties filed post-hearing briefs which have been considered by the Board. We conclude, for the reasons set forth in this decision, that remarks made by Chief Gorney violated the Act and that Ms. Ouellette's termination violated the Act. We will, there- fore, fashion an appropriate remedy to redress these violations and effectuate the policies of the Act. JURISDICTION The jurisdiction of the Board to hear this case and to issue a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988). FINDINGS OF FACT Upon review of the entire record the Maine Labor Relations Board finds the following facts: 1. Susan Ouellette was hired as a dispatcher for the Caribou Police Department on June 5, 1998. Dispatchers and police officers for the City of Caribou ("the City") are in a bargaining unit represented by Teamsters Local 340 ("the Team- sters"). The contract between the City and the Teamsters pro- vides that employees must serve a 9-month probationary period during which time they may be dismissed "without protest by the Union." 2. Ms. Ouellette considered her relationship with the chief of police and others to be a very good one through the summer of 1998. In September, 1998, Ms. Ouellette attended the first union meeting held after she was hired. Unbeknownst to her, Chief Arthur Gorney noticed that she had attended the meeting. 3. Ms. Ouellette reported off sick one day in October, 1998. She was unclear whether, as a probationary employee, she was entitled to be paid for that sick day and later approached -2- her supervisor with this question. Her supervisor suggested she speak with the shop steward. Ms. Ouellette spoke with the shop steward, and she also asked Chief Gorney whether she was entitled to be paid for that sick day. The chief informed her that, according to city personnel policy, she was not entitled to it. During this conversation, Chief Gorney said something like: "I'm not such a bad guy. I let you go to the union meeting." Ms. Ouellette had not realized that the chief knew she had gone to the union meeting, so his comment made her feel as though she was "being watched." She was intimidated by his comment because, at this time, there was noticeable tension between the chief and the union.2 4. After his discussion with her about her ineligibility for sick leave, Chief Gorney learned that Ms. Ouellette had spoken with others about it and had been advised to file a grievance. This information upset the chief, even though Ms. Ouellette did not file a grievance or pursue this issue any further after speaking with him. Chief Gorney was so upset about this that he told City Manager Richard Mattila about it at the time. 5. Ms. Ouellette was regularly scheduled to work on the 11:00 p.m. to 7 a.m. shift. On the evening of February 10, 1999, and through the early morning hours of February 11th, Ms. Ouellette became ill at work. She worked through to the end of her shift and then went directly to a hospital emergency room for medical treatment. Ms. Ouellette was diagnosed with a urinary tract infection and treated with medication. 6. Ms. Ouellette was scheduled to go in to work at 11:00 p.m. that night, but she reported off because she was still _____________________ 2 The attorney general's office was investigating a complaint of impropriety on the part of the chief, and the chief believed the union's shop stewards had initiated this investigation. In addition, the union and the city were in negotiations for a successor contract. -3- experiencing discomfort with the symptoms of her illness (fre- quent and painful urination) and was ill from the side effects of the medication. Ms. Ouellette did not believe she could perform dispatcher duties responsibly in light of her need to make frequent trips to the restroom.3 Ms. Ouellette was entitled to paid sick leave on this date; however, since there were already enough officers on duty to cover for her, no extra time was booked to the city as a result of her having called off. 7. Ms. Ouellette assists her husband in the operation of a disc jockey business.4 The business was hired to provide a sound system for a Caribou Lioness Club function scheduled for February 11, the same day Ms. Ouellette reported off at the police station. The function was entitled "Ladies Night on the Town" and billed as "a fun night for the ladies in the commu- nity." It was Ms. Ouellette's understanding that the Lioness Club had specifically requested her services since it was an all- women affair. In these circumstances, Ms. Ouellette felt obli- gated to work at the function even though she was not feeling well. Ms. Ouellette's husband set up and took down the sound system that night. Ms. Ouellette's job was to play preselected music at specific points in the program and adjust volume as needed. Ms. Ouellette felt physically able to work at this function because, in contrast to her job as dispatcher, she knew _____________________ 3 Ms. Ouellette typically worked alone in the police station. If she needed to leave the dispatch area to use the restroom, she would radio a police officer (unless one was there on break) and then wait until that officer arrived at the station to cover for her at the desk. 4 The labor contract permits employees to be gainfully employed outside the department provided prior approval and consent is obtained from the chief of police. Ms. Ouellette formally requested and received the chief's consent to continue working with her husband. On a few occasions during the summer of 1998, Ms. Ouellette switched her schedule around at the police station to enable her to work with her husband and the chief did not have a problem with this. -4- that it would only last a couple of hours, and that she could use the restroom facilities as needed since she would not be "tied to a desk or a phone." The program consisted of dinner and enter- tainment and ended at about 8:30 p.m. Ms. Ouellette returned home immediately following the program, well before the start of the 11:00 p.m. - 7:00 a.m. shift she had been scheduled to work at the police station. 8. Chief Gorney was out of town on February 11th. In a telephone conversation with his wife, who had attended "Ladies Night on the Town," he learned that Ms. Ouellette had worked the sound system for the program. He subsequently learned that Ms. Ouellette had reported off sick at the police station earlier that day. 9. On February 16, 1999, Chief Gorney called Ms. Ouellette into his office and informed her that she would not be paid for the sick day she had taken on February 11th, because she had been seen at the Lioness function after she had reported off at the police station. Ms. Ouellette asked whether the chief doubted she was too sick to work as dispatcher and she explained why she felt able and obligated to do the Lioness job. The chief said he did not doubt that she was sick, but he questioned why she did not feel equally obligated to work for the police department. In addition to docking her pay, Chief Gorney issued a written reprimand to Ouellette at this meeting which reads, in part: Consider this your notification that you will not be paid for this day due to the fact you were able to DJ but felt unable to dispatch. This is also a written warning that if this occurs again, further action must and will be taken. 10. After he handed her the reprimand Chief Gorney instructed Ms. Ouellette to speak with City Manager Richard Mattila if she did not agree with the discipline, that that was the "chain of command" and if she "talk[ed] to the wrong people -5- [she would] get the wrong advice." Ms. Ouellette assumed the chief's reference to the "wrong people" meant "union people." Chief Gorney testified that he was referring to the people who advised her to file a grievance back in October concerning the unpaid sick leave issue: "[I]f you go to a patrolman and they give you the wrong information, then you could find yourself in this mess." 11. Ms. Ouellette was very upset after this meeting with the chief. She immediately went to speak with the shop steward in a place which was visible to the chief. Chief Gorney saw Ms. Ouellette speaking with the shop steward. 12. City Manager Mattila reviewed the reprimand issued to Ms. Ouellette, and called Chief Gorney to his office a few days later to discuss it. Mattila was of the opinion that Ouellette should be terminated, but he did not want to do this without the chief's concurrence. Mattila testified that he wanted to discuss this with the chief because, although he did not know Ms. Ouellette personally, he had been hearing things about her over time: . . . such as concerns with going to other employees for advice, those things came to me, and I indicated to the chief that this is not the type of employee that the city should be having, and with the probationary period due to expire within a week that more severe action should be taken. Mattila testified that the "advice" he is referring to here is the advice she had received back in October to file a griev- ance. After speaking with the city manager, the chief changed his mind and agreed that Ms. Ouellette should be discharged. 13. On February 23, 1999, Ms. Ouellette was called to a meeting with Chief Gorney and City Manager Mattila. Mattila told Ms. Ouellette he wanted to speak with her about her abuse of sick leave. He asked whether she had been upset after Chief Gorney issued the written reprimand and denied her sick pay. -6- Ms. Ouellette stated that she was upset, and she explained why she felt she was too sick to work at the police station, but could and should work at the Lioness function. Mattila then asked Ouellette if she knew the chain of command and if she followed the chain of command. Mattila asked her this because he wanted to know whether or not she was follow- ing the chain of command "instead of going and getting a lot of advice from other patrolmen which seemed to have gotten her into mischief." Mattila then asked if she was ready to put the issue behind her and whether she had spoken with anyone about it. Ms. Ouellette said that she was ready to put it behind her and denied having spoken with anyone about it.5 Nevertheless, City Manager Mattila told Ms. Ouellette she was not showing the type of dedication the city was looking for in its employees and he handed her a termination notice which reads, in part: . . . As a public servant, you are expected to maintain a high standard of integrity, trust and morality. Reporting out from your job with the city to perform other duties does not express the standards that we are looking for in an employee. 14. After she was handed the termination notice, Ms. Ouellette looked to Chief Gorney for some explanation as to why she was being fired for something she had already been disciplined for a week earlier. The chief informed her she would be receiving two weeks' severance pay, and then he reminded her that he had advised her before not to talk to the "wrong people" and that, if she did, "she would have to deal with whatever happened." Gorney told Ms. Ouellette that, contrary to what she had said to Mattila, he (Gorney) knew that she had gone to "the wrong people and got bad advice" after he had issued the disci- _____________________ 5 Ms. Ouellette denied having spoken with the shop steward because she was afraid she would be terminated if she admitted it. -7- pline on February 16th. 15. When asked at hearing why he was concerned about employees getting "bad advice" from others (see Finding of Fact #12), City Manager Mattila said: Because it affects their performance. If they follow the bad advice, they could end up getting themselves into trouble. Misinterpreting policy, those type of things. If she went to somebody and [they] said, you know, you should have got paid for that, and they're not familiar with the contract, she should go to the people who have the authority to be able to interpret the contract. 16. Ms. Ouellette's job performance throughout her proba- tionary period is not at issue in this case. 17. Douglas Bell, who has been a Caribou police officer for about 11 years, was elected shop steward in the fall of 1998. His relationship with Chief Gorney and Sergeant Ronald Curtis was not as friendly or "open" after that. In January, 1999, Chief Gorney, in the presence of Bell, threw the other shop steward's official union credentials in the garbage can. The chief testi- fied that he did this because he felt it was a "direct dig" on him to be given official union credentials since he was well- aware of who the union officers were. On a different occasion, Chief Gorney remarked to Bell that being a shop steward did not give him more power. After he was elected, Bell was the only police officer assigned to foot patrol, an assignment which was considered unfavorable and had been eliminated at the police department years earlier. As to his relationship with Sgt. Curtis, Curtis began to treat Bell with unusual hostility after his election to shop -8- steward.6 18. There was a causal connection between Ms. Ouellette's participation in protected activities and her discharge from employment as a dispatcher at the Caribou Police Department. DISCUSSION Ms. Ouellette alleges that Chief Arthur Gorney and City Manager Richard Mattila violated Section 964(1)(A)&(B) of the Municipal Public Employees Labor Relations Law. Section (1)(A) prohibits an employer from engaging in conduct which interferes with, coerces or restrains union activ- ity. A violation of section 964(1)(A) does not turn on the employer's motive, or whether the coercion succeeded or failed, but on "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Jefferson Teachers Association v. Jefferson School Committee, No. 96-24, slip op. at 25 (Me.L.R.B. August 25, 1997); MSEA v. Department of Human Ser- vices, No. 81-35, slip op. at 4-5, 4 NPER 20-12026 (Me.L.R.B. June 26, 1981) (quoting NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948)). Section (1)(B) prohibits an employer from encouraging or discouraging membership in any employee organization by discrimi- nation in regard to hire or tenure of employment. 26 M.R.S.A. 964(1)(B). In order to support a discrimination claim, the complainant has the burden of proving by a preponderance of the evidence that: (i) she engaged in protected activity; (ii) the decision-makers had knowledge of complainant's participation in protected activity; and (iii) there is a relationship, or "causal _____________________ 6 For example, on one occasion Bell asked Curtis if he could use the in-house computer to check the status of someone's driver's license. Curtis, who was not known to speak this way, told Bell he should "keep [his] fucking hands off the computer." -9- connection," between the protected activity and the employer's adverse employment action. Casey v. Mountain Valley Education Association and School Administrative District No. 43, Nos. 96-26 & 97-03, slip op. at 27-28 (Me.L.R.B. October 30, 1997) (citing Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 18, 14 NPER ME-23005 (Me.L.R.B. January 29, 1992) ). Even if the complainant proves these three essential ele- ments, an employer may still avoid liability if it is able to prove by a preponderance of the evidence that the employment action was based on unprotected activity as well, and the same action would have been taken regardless of the employee's pro- tected activity. MSEA v. State Development Office, 499 A.2d 165, 168-69 (Me. 1985). Section (1)(A) claim - Chief Gorney's remark at February 16, 1999 meeting We will first address Ms. Ouellette's independent section (1)(A) claim that Chief Gorney's remark to her at the February 16, 1999 meeting, when he issued the written reprimand and denied her sick pay, violated the prohibition against re- straining union activity. Chief Gorney advised Ms. Ouellette that she should not go to the "wrong people" and get "bad ad- vice." Although Gorney very carefully refrained from using the words "union" or "grievance," he admitted he was referring to other unit members who might recommend filing a grievance. Chief Gorney's comments were very clearly meant to restrain protected union activity. We do not see how we could conclude otherwise. The chief advised Ms. Ouellette to direct any ques- tions she may have concerning the legitimacy of the discipline he had just meted out to the city manager, and not to go to anyone else about it for advice. Ms. Ouellette understood the chief to be warning her not to go to "union people," because this is what he meant and intended to convey. -10- Discussing one's contractual rights with unit members and filing grievances constitute protected activities. This freedom to discuss with one's co-workers the rights and benefits accorded by a union contract is at the very core of collective bargaining. We expect public sector employees to go to other unit members and to union officials with questions concerning contract interpreta- tion. If, as a result, a grievance is filed in good faith but the grievant does not prevail, so be it. The Act guarantees employees the right to engage in these activities and employers must not, in any way, restrain them. Nor may employers undermine the union, as was done in this case, by suggesting that they, and not union proponents, have all the right answers to questions concerning the contract. We conclude that any reasonable employee who heard Chief Gorney's admonition in this context, about going to the wrong people and getting bad advice, reasonably would be interfered with, restrained or coerced in asserting protected rights. See MSEA v. State Development Office, 499 A.2d 165, 169 (Me. 1985). It is not only reasonable to conclude that remarks such as this tend to restrain the free exercise of employee rights; in this case, Chief Gorney's motive was to restrain the free exercise of employee rights. In the circumstances, we find that the chief's remarks constitute a violation of section 964(1)(A). Section (1)(A)&(B) claim - Ms. Ouellette's termination Ms. Ouellette contends she was terminated by City Manager Richard Mattila because she engaged in protected activity. As more fully explained below, Ms. Ouellette has met her burden of proving that: (i) she engaged in protected activity, (ii) the decision-makers knew she participated in protected activity, and (iii) there was a causal connection between her protected activ- ity and her termination. Ms. Ouellette engaged in protected activity on at least three occasions: when she attended the first union meeting held -11- after she was hired as a dispatcher, when she spoke with unit members, including the shop steward, about the denial of sick pay in October, 1998, and when she spoke to the shop steward immedi- ately after Chief Gorney docked her pay and issued the written reprimand to her in February, 1999. Chief Gorney's knowledge of Ms. Ouellette's participation in protected activities must be established because he played a role in the decision to terminate her. City Manager Mattila would not have terminated Ms. Ouellette without concurrence from the chief. When the chief and city manager were discussing whether termina- tion was an appropriate disciplinary measure, the chief could have informed the city manager that Ouellette's job performance was satisfactory, and defended the fairly severe disciplinary measures he had taken the week before. Instead, knowing that Ouellette had gone to the shop steward immediately after he issued the discipline, despite his warning not to do so, Chief Gorney changed his mind and agreed she should be terminated. Chief Gorney's knowledge of her most recent protected activity, as well as her earlier participation in protected activities, caused him to change his mind; otherwise, he would not have mentioned it to her in his "I-told-you-so" parting shot immedi- ately after she was terminated. City Manager Mattila's knowledge of Ms. Ouellette's partici- pation in protected activity has been established as well. Chief Gorney admits he was upset when he learned that Ouellette had spoken with other unit members in October, 1998, and had been advised to file a grievance. The chief was apparently so upset that he informed the city manager about it at the time. While the city manager may not have been privy to Ms. Ouellette's February, 1999 union activity, he certainly knew that she had discussed the employment benefits provided by the collective bargaining agreement with other unit employees during her proba- tionary period. -12- The evidence establishes the first two prongs of Ms. Ouellette's burden of proof: that she engaged in protected activities and that the decision-makers knew she participated in protected activity. We next address the evidence which estab- lishes the requisite "causal connection" between her union activity and her termination. We cannot escape the conclusion that this causal connection existed. We have already discussed our conclusion that Chief Gorney changed his mind and agreed to terminate Ouellette because she had gone to the shop steward on February 16, 1999. There is no other way to interpret his response to Ms. Ouellette at the termination meeting, when she looked to him for an explanation: he reminded her that he had advised her before not to talk to the "wrong people " and that, if she did, she would "have to deal with whatever happened." The chief admitted he was referring to her having gone to others about her contractual rights. In Chief Gorney's mind, her termination was connected to her having engaged in protected activity. Similarly, City Manager Mattila's testimony before the Board made it clear to us that there was a causal connection between Ouellette's having gone to other unit members for advice concern- ing her rights under the union contract and her termination. Mattila had made his mind up prior to meeting with Ouellette on February 23, 1999, that he would not settle for the less extreme disciplinary measures imposed by the chief, because Ms. Ouellette was a certain type of probationary employee the city did not want to permanently employ. Ms. Ouellette was the type of probation- ary employee who "go[es] to other employees for advice" on contractual issues. Ms. Ouellette's having met her initial burden of proving a causal connection between her union activities and her termina- tion, the burden shifts to the City to prove by a preponderance of the evidence that Ms. Ouellette would have been terminated -13- even if she had not engaged in protected activities. Termination is the most extreme discipline possible, and terminating a public employee because of that employee's attempts to obtain the benefits of membership in a labor organization constitutes "the most egregious form of unlawful labor practice sought to be prevented" by the Act. City of Bangor v. A.F.S.C.M.E. Council 74, 449 A.2d 1129, 1134 (Me. 1982). With this in mind, we must carefully examine the circumstances which led to the decision to terminate Ms. Ouellette. The City claims that, regardless of her involvement in protected activity, Ms. Ouellette's abuse of sick leave during her probationary period warranted termination. We agree that a probationary employee's abuse of sick leave could warrant termi- nation; however, we conclude that Ms. Ouellette did not abuse sick leave. Chief Gorney did not doubt Ms. Ouellette was sick on Febru- ary 11; therefore, it appears she was entitled under the union contract to report off and receive sick pay. The chief docked her pay and issued a written reprimand not because she abused sick leave, but because she appeared to be more "loyal" to the disc jockey business than she was to her job as dispatcher. While we may find it harsh, we can understand how the chief might have thought this sent a "bad message" to other department employees, and why he had to take some disciplinary measure in response to it. If this was all that had happened to Ms. Ouellette as a result of her conduct on February 11, this would be a different case.7 It is the more severe discipline of termi- nation that is questionable in this case. _____________________ 7 Ms. Ouellette claimed she would not have filed this prohibited practice complaint if the reprimand and loss of a day's pay were the only disciplinary measures meted out to her. -14- Chief Gorney changed his mind and decided to concur with the city manager's decision to terminate Ms. Ouellette because he saw her talking with the shop steward immediately after he had disciplined her. He was satisfied that she should not be termi- nated until he witnessed her, yet again, engaging in protected activity. This is evidence that, as far as Chief Gorney was concerned, he would not have terminated Ouellette solely for reporting off and then working at the Lioness function. While it may be true that City Manager Mattila has a genuine and legitimate concern about probationary employees abusing sick leave, we again point out that Ms. Ouellette did not abuse sick leave. She did not report out from her job with the city in order to work at the Lioness function, as she is accused of doing in the written termination notice, nor did she fabricate her ill- ness. Ms. Ouellette was unquestionably ill on February 11. Her explanation as to why she did not think she could responsibly perform the duties of a dispatcher that night, but felt able and obligated to work at the Lioness function, seems reasonable to us. If City Manager Mattila was mistaken in his belief that Ouellette was not sick and had reported out in order to work elsewhere, her explanation during the February 23 meeting should have straightened that out. City Manager Mattila's own testimony is proof that Ms. Ouellette would not have been fired simply for reporting out and working at the Lioness function. Mattila's explanation at hearing as to why he believed the chief's earlier disciplinary measures for this conduct were not sufficiently severe speaks for itself: the city did not want the "type" of employee who went to others with concerns about contractual rights. It was not related to any perceived abuse of sick leave.8 _____________________ 8 The city manager's rationale for being concerned about employ ees "getting bad advice," that it affects their performance, is unpersuasive in Ms. Ouellette's case because her performance was satisfactory. -15- City Manager Mattila testified that, in his opinion, going to other employees for advice about contract matters gets employ- ees into "mischief" and "trouble." We cannot understand what the city manager could have meant by this in Ms. Ouellette's case. What future mischief and trouble was City Manager Mattila con- cerned about when he decided to deny Ms. Ouellette permanent employment? Exercising one's right to discuss contractual issues and file grievances should not get an employee into mischief or trouble even if, as we noted earlier, a grievance is denied all the way through arbitration. Although it is not critical to Ms. Ouellette's case, the evidence pertaining to the treatment of the newly-elected shop steward does add to our sense that members of the Caribou Police Department who engage in protected activities risk unfavorable treatment from the chief of police and others in the chain of command above police officers. In summary, Ms. Ouellette has proved that there was a causal connection between her involvement in protected activity and her termination, and the City has failed to prove that Ms. Ouellette would have been terminated regardless of her involvement in protected activity. We conclude, therefore, that Ms. Ouellette's termination violated section 964(1)(B). Ms. Ouellette's success in proving a section (1)(B) claim automatically establishes a violation of section (1)(A). Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 22, 14 NPER ME-23005 (Me.L.R.B. January 29, 1992) (discriminatory discharge inherently interferes with the free exercise of employee rights in violation of section 964 (1)(A)). REMEDIES Title 26 section 968 (5)(C) provides that the Board, upon a finding that a party committed a prohibited practice, shall issue an order requiring that party to cease and desist from such -16- prohibited practice and to take such affirmative action as will effectuate the Act. We have concluded that Chief Arthur Gorney and City Manager Richard Mattila engaged in prohibited practices in violation of sections 964(1)(A) and (B) by making certain comments which would restrain union activity, and by terminating Ms. Ouellette because she engaged in protected activity. Accordingly, we will order Respondents to cease and desist from restraining union activities in the manner evidenced in this case, and to cease and desist from terminating or otherwise discriminating against employees based on union activity. This cease and desist order does not adequately rectify the violations of law which occurred at the Caribou Police Depart- ment. We believe that affirmative action must be taken by the Respondents as well to effectuate the policies of the Act. Accordingly, we will order the Respondents to reinstate Susan Ouellette to her position as dispatcher and make her whole for any loss of benefits and earnings (including interest in accor- dance with our decision in Holmes v. Old Orchard Beach, No. 82- 14, slip op. at 14 (Me.L.R.B. September 27, 1982)) caused by their unlawful conduct. Ms. Ouellette was not permitted to work- out the final week of her probationary period; however, in these circumstances and in light of her satisfactory job performance throughout her probationary period, she should be returned to employment with the status of permanent employee. The Municipal Public Employees Labor Relations Law was amended in 1991 to provide that the Board, in its discretion, may allocate all of the Board's costs in conducting a hearing to a party that commits a blatant violation of the law. 26 M.R.S.A. 968(1) (1988 & Supp. 1998). We conclude that agents of the City of Caribou, City Manager Richard Mattila and Chief Arthur Gorney, committed a blatant violation of law when they terminated Ms. Susan Ouellette because the City did not want to employ the -17- "type" of employee who discussed her contractual rights with other unit members. Ms. Ouellette's conduct is clearly protected by the Act, and the prohibition against discriminating against employees who engage in protected activities is clearly set forth in the Act. Likewise, we have concluded that Chief Gorney clearly intended to restrain protected union activity when he advised Ms. Ouellette to direct any questions she may have concerning the legitimacy of his February 16 disciplinary measures to the city manager, and not to go to other unit members for advice. Comments such as these constitute a blatant violation of the Act's prohibition against restraining employees in their exercise of rights guaranteed by the Act. ORDER On the basis of the foregoing findings of fact and discus- sion, 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), it is hereby ordered that: Respondent City of Caribou and its representatives and agents, including Chief Arthur Gorney and City Manager Richard Mattila, shall: A. Cease and desist from: 1. interfering with, restraining or coercing employees in the Caribou Police Department in their exercise of rights guaranteed by the Municipal Public Employees Labor Relations Law; 2. terminating or otherwise discriminating against employees in the Caribou Police Department who engage in protected activities. B. Take the following affirmative action necessary to effectuate the policies of the Act: 1. immediately reinstate Susan Ouellette to the position of dispatcher with the status of a permanent employee, with all of the benefits -18- she would have been entitled to had she not been terminated, and remit to her the back pay and interest described in the "Remedies" section of this decision; 2. notify the Executive Director of the Maine Labor Relations Board, in writing, within twenty (20) days from the date of this Order what steps have been taken to comply with this Order. If the parties have not agreed on the nature of benefits or amount of back pay due to Susan Ouellette within thirty (30) days after the date of this Order, Ms. Ouellette may file with the Executive Director and serve on the City of Caribou sufficient documentation to substantiate her claim. The City of Caribou will have fifteen (15) days from such filing to respond with evidence bearing on these issues. The Board will thereafter issue a supplemental Order or conduct such further proceedings as are necessary to supplement this Order. C. Pay to the Maine Labor Relations Board Susan Ouellette's portion of the Board's costs in con- ducting this hearing, as itemized in a bill from the Executive Director. Dated at Augusta, Maine, this 22nd day of November, 1999. The parties are advised of MAINE LABOR RELATIONS BOARD their right pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1998) to seek a review of this decision and order by the ______________________________ 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 ______________________________ and order, and otherwise com- Karl Dornish, Jr. ply with the requirements of Employer Representative Rule 80(C) of the Rules of Civil Procedure. Employee Representative Gwendolyn Gatcomb filed a separate opinion, concurring in part and dissenting in part. -19- I concur with the majority of the Board in every respect of the decision except for the remedies ordered to effectuate the policies of the Act. In addition to back pay from the date of termination forward, I would require the City to reimburse Ms. Ouellette for the one day's pay which was docked by Chief Gorney, and remove the written reprimand from her personnel file. I believe Ms. Ouellette's perfectly reasonable explanation for being able to work at the Lioness function but needing to report off from her dispatch duties should have satisfied Chief Gorney, and that these disciplinary measures were imposed by him because of her prior participation in protected activities of which he was well aware at that time. ______________________________ Gwendolyn Gatcomb Employee Representative -20-