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.
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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
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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.
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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.
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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
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[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.
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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.
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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
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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."
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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.
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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
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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.
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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
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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.
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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.
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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
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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
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"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
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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.
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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
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