STATE OF MAINE                                           MAINE LABOR RELATIONS BOARD
                                                                      Case No. 79-51

STATE OF MAINE,               )
                 Complainant, )
                              )                          DECISION AND ORDER
  v.                          )
                 Respondents  )

     On February 16, 1979 Teamsters Local Union No. 48 ("Local 48") filed a pro- 
hibited practice complaint against the Town of Machias and its Police Department
("Town").  The Town filed an answer to the complaint on March 12, 1979.

   A pre-hearing conference on the case was held on April 3, 1979, Alternate
Chairman Donald W. Webber presiding.  As a result of this pre-hearing conference,
Alternate Chairman Webber issued on April 3, 1979 a Pre-Hearing Conference Memo-
randum and Order, the contents of which are incorporated herein by reference.

   A hearing on the case was held on August 21, 1979, Chairman Edward H. Keith
presiding, with Alternate Employer Representative Thacher E. Turner and Alternate
Employee Representative Harold Noddin.  The parties engaged in oral argument on 
the case at the conclusion of the hearing.  The Board proceeded to deliberate 
over the case at a conference held October 17, 1979.


   Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this case, and we conclude that this Board has jurisdiction to hear the
case and render a decision as provided in 26 M.R.S.A.  968(5).

                              FINDINGS OF FACT

   Upon review of the entire record, the Board finds:

        1.  Teamsters Local Union No. 48 is a public employee labor 
            organization and bargaining agent within the meaning of 
            26 M.R.S.A.  968(5)(B).  The Town of Machias and its 
            Police Department are public employers within the mean-
            ing of 26 M.R.S.A.  968(5)(B).

        2.  On October 20, 1978 Local 48 was certified as the
            exclusive bargaining agent for a bargaining unit of
            Machias Police Department Patrolmen by a 1-0 vote.  
            Clayton Spencer was the only Patrolman who voted 
            at the October 20th bargaining agent election.  At
            the time of the election the Police Department employed
            two full-time Patrolmen and a Chief of Police.


        3.  Spencer was hired as a Patrolman by the Town in July,
            1973.  On July 10, 1976 Spencer was suspended by Chief
            of Police Ivan Archer for a period of 8 days without
            pay for disobeying orders, having a poor attitude, and
            unsatisfactory job performance.  On October 2, 1976, 
            Spencer was dismissed by Archer for wearing a beard on
            duty.  Spencer was reinstated to his position on October
            21, 1976.

        4.  In May, 1978, Spencer and another Patrolman in the Police
            Department contacted Local 48 regarding union representa-
            tion.  Spencer signed a Local 48 authorization card, and
            subsequently was instrumental in scheduling an organizational
            meeting for, and distributing authorization cards to, town
            public works employees.  The Public Works Department employees
            also elected Local 48 as their bargaining agent on October 20,

        5.  On July 6, 1978 Spencer was suspended for 3 days by Chief of
            Police Richard Braley.  This suspension resulted from an in-
            cident at the police station where Spencer, in the presence of
            another Patrolman, tore up an old ID card and a radar card,
            slammed his keys on a table, and stated that he was "sick of
            this outfit."  The incident was precipitated by a order from the
            Chief of Police that the Patrolmen begin recording their long
            distance telephone calls in a log.

        6.  On September 12, 1978, the Town's Board of Selectmen met with
            Town employees to discuss employee complaints and concerns.
            One result of this meeting was that an article was placed in the
            Town warrant which would have established a pension plan for
            Town employees.  This article was not passed by the voters at
            the spring, 1979 Town Meeting.

        7.  On September 18, 1978, Braley told Spencer that the Selectmen
            had directed Braley to monitor Spencer's and the other Patrol-
            man's job performance.  On September 22, 1978, Spencer was ver-
            bally suspended without pay for two weeks.  By letter dated 
            September 25, 1978, Town Manager Jeffrey Barnes and Chief Braley
            provided five reasons for the suspension, including the reason
            that Braley was dissatisfied with the quality of Spencer's work
            and his attitude.  The letter states that Spencer could return
            to work on October 6, 1978 on a probationary basis with his job
            performance being evaluated on a monthly basis by Braley.  The
            probationary period was to last 90 days.

        8.  A lengthy hearing on the causes of Spencer's suspension ensued on
            October 2, 1978 between the Board of Selectmen and Spencer.  The
            hearing resulted in no change in the suspension handed out by the
            Town Manager and Chief of Police.  Spencer returned to work at the
            end of the suspension period on October 6, 1978.

        9.  Thereafter, a series of events occurred which led to the dismissal
            of Spencer.  On October 14 or 15, 1978, Spencer signed a petition
            in a card shop in Machias which requested the Selectmen and Town
            Manager to remove Braley as Chief of Police because of an alleged
            lack of ability to provide leadership for the Police Department.
            The signing of this petition was viewed by Braley as criticism of 
            Braley's leadership through improper channels.  On October 20,
            1978, while eating dinner at home, Spencer did not respond promptly
            to a telephone complaint from the Washington County Sheriff's
            Office that an unruly group of youths were gathering in the parking
            lot at a local bank.  Spencer finished dinner and then arrived at
            the parking lot approximately 45 minutes after receiving the com-

       10.  The next day, Spencer failed to obey an order from Braley directing
            Spencer to move a police cruiser and use the cruiser's public


            address system to order a milling crowd of people to disperse.
            Spencer moved the cruiser, but did not address the crowd with
            the vehicle's public address system.  Then, while working the
            midnight to 8:00 a.m. shift on October 24, 1978, Spencer spent
            over two hours at the Sheriff's Office, at home, and at a res-
            taurant while he should have been on duty.

       11.  The relationship between Spencer and Braley also deteriorated
            considerably in October, 1978.  While there had been considerable
            friction between the two officers for years, the situation had
            worsened in early October to the point where Spencer no longer
            spoke to Braley.  The feelings between the two men were so strained
            that it was impossible for them to work together.

       12.  By letter dated October 25, 1979, Braley terminated Spencer's
            probationary period and dismissed Spencer from his position in the
            Police Department.  The letter lists six reasons for the dismis-
            sal, including failure to answer a complaint on October 20, 1978
            in a reasonable length of time, failure to obey an order from the
            Chief on October 21, 1978, spending an excessive amount of time
            on breaks during the October 24, 1978 shift, and general perfor-
            mance and attitude since the September 22, 1978 suspension.

       13.  Spencer met with the Selectmen to discuss his dismissal at a
            hearing on October 31, 1978.  The Selectmen upheld Spencer's
            dismissal as a result of this hearing.  

   Local 48 charges that the Town violated 26 M.R.S.A.  964(1)(A) and (B) by  
discharging Spencer because of his union activities.  Local 48 seeks as a remedy
that Spencer be reinstated to his former position with full back pay.  The Town
urges that Spencer was dismissed for cause completely unrelated to his union
activities.  As discussed more fully below, we find after carefully considering 
the evidence that Spencer's participation in protected union activities was not
among the causes of his dismissal.  We accordingly cannot find a violation of
Section 964(1)(A) or (B), and must order that Local 48's complaint be dismissed.

   We have held in many cases that "an act will violate 26 M.R.S.A.  964(1) 
(A) or (B) if simply one of the motivating factors for the act was an unlawful 
one."  Teamsters Local 48 v. Town of Jay, MLRB Nos. 79-11 and 79-19 at 3 (1979)
(emphasis in original).  In particular, if one of the reasons for an employee
discharge is the employee's union activities, then the discharge violates Section
964(1)(A) and (B) and the employee is entitled to reinstatement and full back pay. 
Freeport Police Benevolent Association v. Town of Freeport, PELRB No. 74-18 (1974),
aff'd sub nom. Campbell v. Town of Freeport, No. C-75-621 (Kennebec County Super.
Ct. Sept. 2, 1976).

   We determine whether the discharge was motivated in part by an unlawful rea-
son "by carefully examining the entire record and drawing inferences from the 
facts contained in the record."  Teamsters Local 48 v. City of Auburn, MLRB No. 
79-41 at 5 (1979).  An inference of unlawful motive does not constitute a per se
violation of Section 964(1)(A) or (B), and may be rebutted by evidence showing 
that the discharge was motivated solely by legitimate reasons.


   The timing of Spencer's discharge in the present case permits an inference
that one reason for the discharge was Spencer's support for the union.  Spencer's
vote at the October 20, 1978 certification election elected Local 48 as the
Patrolmen's exclusive bargaining agent.  Five days after the election, Spencer was
discharged.  This sequence of facts, taken alone, plainly would suggest that 
Spencer was discharged in retaliation for voting for the union.  In addition 
to these facts, Spencer had since May, 1978 been the most active Town employee 
in the organizational campaigns in the Town's Police and Public Works Departments.  

   Having carefully examined the entire record, however, we conclude that any
inferences of unlawful motive are rebutted by facts showing substantial cause for
the discharge.  Spencer had been a disciplinary problem for the Town for several
years.  In July, 1976, he was suspended for 8 days by Chief of Police Ivan Archer
for disobeying orders, unsatisfactory job performance, and having a bad attitude. 
In October, 1976, Spencer was dismissed from the Department for wearing a beard 
on duty.  Spencer was suspended for 3 days in July, 1978 after vehemently protest-
ing a directive that the Patrolmen record their long distance telephone calls in 
a log at the Police Station.  He was again suspended in September, 1978, for two
weeks because the Chief was dissatisfied with the quality of his work and his
attitude.  After the September suspension, Spencer was placed on probation for 
90 days, with the proviso that Chief Clifford Braley would evaluate his job
performance every month.

   Upon returning to work after the September suspension, Spencer's job perfor-
mance showed no improvement.  On October 20, 1978, Spencer failed to respond in a
timely fashion to a complaint, arriving at the scene approximately 45 minutes 
after receiving the complaint.  The next day, Spencer failed to obey an order from
Braley that Spencer use a public address system to order a milling crowd to dis-
perse.  While working the "graveyard" shift on October 24, 1978, Spencer spent 
over two hours on breaks when he should have been on duty.

   The feelings between Spencer and Braley also became increasingly strained in
October, 1978.  Spencer would not speak to Braley after returning to work after the
two week suspension.  On October 14 or 15, 1978 Spencer signed a petition calling
for town officials to remove Braley as Chief of Police because of an alleged lack 
of ability to provide proper leadership for the Police Department.  Braley viewed
Spencer's signature on the petition as open criticism of his leadership through im-
proper channels.  The hostility and animosity between the two officers made it
impossible for them to work together on Department matters.

   While each fact recited above might not by itself constitute sufficient cause
for discharge, the cumulative effect of the facts clearly constitutes adequate cause
for dismissal.  Spencer's history of disobeying orders from superiors, unsatisfac-
tory job performance, and attitudinal problems is plainly established by the evi-
dence.  Spencer was aware after his September, 1978 suspension that he was on pro-
bation and that his job performance would be reviewed on a regular basis by the
Chief, yet his job performance and attitude became worse rather than improving.
In addition, it had become apparent by October 25, 1978 that Spencer was unable to
work with Braley.  This inability to work with the Chief is a particularly serious


matter in a small, three-person Department such as the Town's.  After considering
the totality of these facts, we conclude that they constitute adequate cause for
Spencer's dismissal.  They also refute any inferences that Spencer was discharged
because of his union activities.

   We are aware that the 1978 suspensions and discharge all came after Spencer
had commenced the organizational activities on behalf of Local 48 in May, 1978.  
We accordingly have scrutinized in particular detail the facts surrounding the
suspensions and discharge, in an effort to ascertain whether there were substan-
tive reasons for the disciplinary action.  We conclude that while some of the Town's
stated reasons for the discipline are trivial, there were other legitimate reasons,
discussed above, for the Town's actions.  To the best of our judgment, Spencer was
not "set up" or provoked by Town officials into engaging in misconduct once it
became known that he was attempting to organize town employees, so as to give the
Town a convenient excuse for firing him.  To the contrary, we believe that the dif-
ficulties encountered by Spencer were of his own making, caused by his dislike of
authority, particularly as exercised by Braley.

   Having concluded that there was sufficient cause for Spencer's dismissal, we
are prohibited from ordering that Spencer be reinstated with back pay.  26 M.R.S.A.
 968(5)(C).  We find that the Town did not violate Section 964(1)(A) or (B), and
will order that Local 48's complaint be dismissed.


   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 pro-
visions of 26 M.R.S.A.  968(5), it is ORDERED:

        That Teamsters Local 48's complaint filed February 16, 1979
        against the town of Machias and its Police Department is

Dated at Augusta, Maine, this 13th day of November, 1979.

                                      MAINE LABOR RELATIONS BOARD

                                      Edward H. Keith

                                      Thacher E. Turner
                                      Alternate Employer Representative

                                      Harold S. Noddin
                                      Alternate Employee Representative