Teamsters v. Town of Winthrop and Charles H. Jackson, Police Chief, No. 84-06, aff'd. Inhabitants of the Town of Winthrop and Charles Jackson, Police Chief v. MLRB and Teamsters, CV-84-538 (July 11, 1985). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-06 Issued: November 16, 1984 ___________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and ) University Employees in the ) State of Maine, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF WINTHROP ) ) and ) ) CHARLES H. JACKSON, Police Chief ) of the Town of Winthrop, ) ) Respondents. ) ___________________________________) This is a prohibited practice case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on September 12, 1983, by Teamsters Local Union No. 48 ("Union"). The Union's complaint alleges that the Town of Winthrop ("Employer"), acting by and through its Chief of Police, has violated 26 M.R.S.A. Sections 964(1)(A), (B), (C), (D), and (E) by taking cer- tain actions tending to discriminate against certain Winthrop Police Department employees because of their membership and activities in the Union. The Union filed an amended complaint on November 22, 1983, adding to the original charges an allegation that the Employer violated 26 M.R.S.A. Section 964(1)(D) by suspending two of its employees, indefinitely and without pay, because one of them had given testimony before the Labor Relations Board ("Board"). On February 29, 1964 the Union filed a second amended complaint alleging therein that the Employer had violated 26 M.R.S.A. Section 964(1)(D) by discharging the two employees who had previously been suspended. All of said complaints have been consolidated for hearing. The Town of Winthrop and Chief Jackson (hereinafter referred to together as "Employer") filed answers to the original and the first amended complaints on -1- September 29, 1983 and November 28, 1983 respectively. The Employer's answers denied that it had violated any section of 26 M.R.S.A., Section 961, et seg., prayed that the Union's complaint, as amended, be dismissed, and sought to recover its attorney's fees and costs. Since the Union's second amended complaint was filed during the last day of the hearing on the merits, the Board allowed the amendment and deemed the Employer to have answered and denied the violations of the Act alleged therein. A pre-hearing conference was held on October 11, 1983, Alternate Chairman Donald W. Webber presiding. On that date the Alternate Chairman issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. Public hearings were conducted on October 26, November 10, December 1, 5, 6 and 22, 1983, and January 9, 10, 13, 23, February 1, 28, and 29, 1984 by said Alternate Chairman, Employer Representative Thacher E. Turner and Employee Representative Harold S. Noddin. The Union was represented by its Secretary-Treasurer, Walter J. Stilphen, Jr., and the Employer was represented by Lee K. Bragg, Esq. The par- ties were afforded full opportunity to examine and cross-examine wit- nesses, to present evidence and to make argument. The parties filed post-hearing briefs which have been considered by the Board. JURISDICTION The Union is the bargaining agent, as defined by the Act, for two bargaining units of employees of the Winthrop Police Department. One such unit is composed of the Patrolmen and Dispatchers and the other consists of the Corporals. The Town of Winthrop is the public employer within the definition of 26 M.R.S.A. Section 962(7) of these employees. At all times relevant hereto Charles H. Jackson has been the Chief of Police and an agent of said Town. Since the acts alleged concerning Jackson are said to have arisen out of and been performed by him in the course of his employment by the Town, Jackson is a public employer of said employees. The jurisdiction of this Board to hear this case and to render a decision and order therein lies in 26 M.R.S.A. Section 968(5). -2- FINDINGS OF FACT - CONCLUSIONS OF LAW The collective bargaining agreement negotiated by the parties pro- vided a familiar method of filing and resolving grievances. They were to be filed with the Chief of Police at the first step and, if not there resolved, appealed to the Town Manager. Arbitration was pro- vided as a final step. During the period between certification of the bargaining agent in 1980 until he terminated his employment on April 4, 1983, Officer Seth Higgins served as Shop Steward. During that time he filed between 30 and 40 grievances, about half of which involved Higgins himself as the grievant. None of these grievances was resolved at the first level but all were ultimately resolved without resort to arbitration. During this period the personal rela- tionship between Higgins and the Chief steadily deteriorated, Higgins being convinced that the Chief arbitrarily refused to take grievances seriously, and the Chief being equally convinced that Higgins hoped through an excessive use of the grievance machinery to drive him from office. Jackson came to the Winthrop post with some prior experience as a union member in earlier employment. He had even served as a shop steward. Thus he had a better understanding of unions and their proper role than do many management people, and he came to Winthrop without a preconceived hostility towards unions. On the other hand, he attached great importance to personal loyalty to himself, a fact which he impressed upon members of the Department in private conver- sations. He was frequently visibly irritated and disturbed by what appeared to him to be manifestations of loyalty to the Teamsters Union which exceeded personal loyalty to himself. The influence of Higgins upon the attitude of Jackson toward the Union cannot be overstated. An intense personal hostility developed between these two men. Since Higgins was the visible presence of the Union in action, it gradually followed that what had started as a per- sonal vendetta produced in Jackson strong anti-union feelings of which he was not himself consciously aware. When he tells us in sworn testimony that he disliked Higgins personally but entertained no anti- union bias, he genuinely believes that was the true state of his -3- feelings--but he is honestly mistaken as to that. The other person involved with labor relations on the management side was the Town Manager. Even though we find no evidence that he had anything but an objective and dispassionate view of Union repre- sentation in the Department, we conclude that his instinctive loyalty to his Chief plays a part. A primary issue in this case involves the suspension by the Chief and subsequent discharge by the Manager of Officer Pullen and Corporal Cookson, hereinafter discussed. If the suspensions were tainted by Jackson's unrecognized anti-union feelings, an act by the Manager in effect supporting the Chief and in part motivated by loyalty to him also became tainted. We conclude that in this most unusual situation, involving as it does the complexities of human emotions, a latent and unrecognized anti-union bias became one motivating factor in the disciplinary action of suspension and discharge. In these circumstances, as in our prior decisions, Holmes v. Town of Old Orchard Beach, MLRB No. 82-14 (Sept. 27, 1982), aff'd. Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Association, York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983); Teamsters Local 48 v. Town of Wells, MLRB No. 84-29 (Oct. 9, 1984), we apply the test enunciated in Wright Line v. Lamoureux, 251 N.L.R.B. 1083 (1980) (the so-called Wright test). N.L.R.B. v. Transportation Management Corp., ___ U.S.___, 103 S. Ct. 2469, 76 L.Ed.2d 667 (1983). We ascertain first whether anti-union bias was a motivating factor in the action taken. If not, the disciplinary actions stands. But if so, we deter- mine whether the same action was justified and would have been taken in any event. We turn now to the second prong of the Wright test. We must determine whether or not Pullen and Cookson, or either of them, would have been discharged, absent any trace of anti-union motivation. Pullen's discharge was based entirely upon his filing of false information with public agencies in connection with his work as an instructor in Emergency Medical Technician (EMT) training. If proved beyond a reasonable doubt in a court of competent jurisdiction, such conduct would constitute "unsworn falsification," made a Class D crime by 17A M.R.S.A. Section 453. Pullen has never been charged or tried -4- criminally on this charge. For technical reasons it was to Pullen's advantage to have it appear that he intended to conduct a formal course of instruction on February 1, 2 and 3, 1983, and subsequently that he had in fact given the instruction on those dates. No such course was given at that time. During a period extending to February 9, 1983, Pullen and Cookson discussed from time to time some course requirements where it was deemed that Cookson should place some emphasis in preparation for a subsequent examination. From February 14 to March 14, 1983, Pullen gave the formal course to a group which included Leonard Bates, a Winthrop police officer, and his wife. On the basis of the false reports submitted, the Kennebec Valley Vocational Technical Institute issued certificates of comple- tion to Pullen, Cookson, Officer Bates and Mrs. Bates, all dated back to February 3, 1983. Leonard Bates, as Chief of Service of the Monmouth Rescue Unit, certified Cookson as being affiliated with that Unit. Such affiliation was essential to Cookson if he was to obtain a renewal of his license as an EMT. In fact Cookson had never had any affiliation with the Monmouth Unit. Apart from the rendering of false reports, Pullen is an experienced and competent instructor. What he did, in effect, was to provide a shortcut to continuation of his status as an instructor and that of his friend Cookson as a licensed technician. The result could have been obtained by proper methods but they would have taken con- siderably more time. On the other hand, Pullen's falsification of records has not produced technicians who would constitute a danger to the public. All of his students passed the State examination credit- ably and must be considered competent technicians. Pullen's manipu- lation of public records is, of course, highly improper and inexcusable, especially for a police officer. In our view such con- duct deserves and requires some disciplinary action. This being a first offense and no harm to the public having resulted, discharge appears to be unnecessarily severe. Moreover, there are other factors which must be considered and which militate against discharge as appropriate discipline for Pullen. Union affiliation can be easily discouraged and chilled by any marked disparity in disciplinary action as between union and non-union -5- personnel. The most serious single violation of duty and respon- sibility brought to our attention involved a dispatcher who was found sleeping at his post. There is persuasive evidence that for a substantial period of time the citizens of Winthrop were without any means of obtaining police assistance. Every member of the Department was aware of two significant facts: the dispatcher received only an oral reprimand, and the dispatcher was not a union member. Rightly or wrongly, the perception of employees in such a case is that these two facts are related and the result can be and frequently is a chilling effect on union affiliation. Leonard Bates allowed his name to be included as a participant in the non-existent EMT course and issued the false certificate of affil- iation, as above noted. Members of the Department would understand- ably conclude that because he was not a Union member Bates received no discipline whatever, while Pullen for his actions was discharged. One further consideration bears on the result this Board must reach in assessing the justification for the Pullen discharge. In the course of giving testimony Pullen became highly emotional and expressed his conviction that he would be discharged in retaliation for being a witness adverse to the Employer. The Chairman, with the tacit approval of the Board members, assured Pullen that the Board could and would protect any witness who was subjected to retaliatory action for testifying. Before the next session of the hearing, Pullen had been subjected to severe discipline. As might be expected, the Employer asserts that Pullen was "putting on an act" and was not sin- cere in his concern over possible retaliatory action. But, whether that is true or not, the timing of disciplinary action was atrociously thoughtless and ill conceived in view of the Board's assurances of protection. The perception of the public would surely be that this Board makes vain and idle promises to protect witnesses from reta- liatory action which it does not keep. This is disruptive of the very process by which the Board seeks to deal justly with both employers and employees. It must be noted, however, that the Board's assurance of protection was related only to retaliatory action for testifying and was not intended to provide the officer with a guarantee of -6- immunity from the consequences of his own violations of duty. We find that anti-union bias influenced the extent of the disciplinary action imposed in Pullen's case. We conclude, however, that his conduct was such that some disciplinary action was required and proper and would have occurred regardless of any improper motiva- tion on the part of management. In the light of the examples given above involving non-union personnel, we conclude further that he would not have been discharged if he had had no union affiliation. The discharge must therefore be set aside and reduced to suspension without pay for a period of three weeks. He becomes entitled to back pay from the end of the suspension period, with interest, to the date when he is offered a return to duty. Credit will be given for any benefits earned during the interim. Such a suspension is itself a severe disciplinary action and constitutes adequate punishment, absent any anti-union motivation, for what was clearly a serious infraction of proper police conduct. The case of Cookson is quite different. Although the decision of management stressed only his participation in the falsification of EMT records, that event was but the last in a long series of episodes in which he demonstrated an inability to adhere strictly to the truth. This weakness manifested itself when fabrication might assist in achieving a desired result, as in the affair of the EMT records, and in cases where the truth might bring blame, discredit or other adverse consequences. It is essential that a police officer deserve the repu- tation that what he says can be believed. His superiors, his fellow officers and the public must have confidence that they can trust his word. We noted evidences of Cookson's problem with the truth during the course of his sworn testimony before the Board, some of which was far from persuasive. We do not here encounter the problem of disciplinary action in retaliation for the giving of testimony adverse to the Employer's interest since the disciplinary action preceded his testimony. We find that Cookson's conduct over a substantial period of time, culminating in the EMT affair, has demonstrated that he is not suited to police duty in Winthrop. We conclude that his discharge was proper and would and should have occurred regardless of any anti- -7- union motivation. The Complainant Union, having demonstrated that the Respondent, whether consciously or subconsciously, has entertained anti-union feelings which have affected some of its decisions and produced some discrimination in favor of non-union personnel, is accordingly entitled to a cease and desist order in the usual form. With specific reference to the statute, we find violations of Section 964 of the Act as noted above. The remedies contained in the following order are needed to remedy the violation of the Act found herein and to effec- tuate the policies of the Act. ORDER Pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(5), it is accordingly ORDERED: 1. That the Respondent Town of Winthrop, its representatives and agents cease and desist from: (a) Discriminating against employees of the Winthrop Police Department because of their interest in or activity on behalf of the Complainant Union or any other labor organization. (b) In any other manner interfering with, restraining or coercing employees employed in the Winthrop Police Department in the exercise of the rights guaranteed them by 26 M.R.S.A. Section 963. 2. That the discharge of officer Fred Pullen effective December 13, 1983 is set aside and the suspension without pay ordered on October 28, 1983 is hereby limited to a period of three weeks terminating on November 18, 1983. 3. That the Respondent Town of Winthrop pay to said Pullen the sum he would have earned from and after November 18, 1983, from which will be deducted his net earnings from other employment as defined in Holmes, et al. v. Town of Old Orchard Beach, et al., (1982) M.L.R.B. Case No. 82-14; together also with interest on said sum computed as set forth in said Board decision. 4. That said Respondent post in the Winthrop Police Depart- ment in such place as notices are normally posted for the attention of the regular, full-time police officers thereof copies of the attached "Notice." Copies of this notice, after being signed and dated by the Town Manager -8- of Winthrop, agent and/or representative of said Respondent, shall be posted immediately upon receipt and shall be maintained for 30 consecutive days at the place mentioned above. Reasonable steps shall be taken by the Respondent to ensure that this notice is not altered, defaced or covered by any other material. 5. Notify the Executive Director in writing within 20 days from the date of this order as to what steps have been taken to comply with the order. 6. If within 30 days after the date of this decision and order the parties have not agreed on the amount of back pay (or net benefits) due to Fred Pullen, the parties shall proceed in the manner set forth by this Board in Case No. 82-14. Dated at Augusta, Maine, this 16th day of November, 1984. MAINE LABOR RELATIONS BOARD The parties are advised of their right pursuant to 26 M.R.S.A. Sec. 968(5)(F) ____________________________ (Supp. 1983-84) to seek Donald W. Webber review of this decision Alternate Chairman and order by the Superior Court by filing a complaint in accordance with Rule 80B of the Rules of Civil Pro- ____________________________ cedure within 15 days of Thacher E. Turner the date of this decision. Employer Representative Employee Representative Harold S. Noddin filed a dissenting opinion. -9- DISSENTING OPINION The majority of the Board, while utilizing the correct legal stan- dard in analyzing the Employer's violations of Sections 964(1)(A) and (B), have reached a result which is contrary to the evidence in this case. My colleagues have committed an error of law in failing to properly consider the evidence which established that the Employer violated Section 964(1)(D) of the Act. Finally, the majority opinion does not provide adequate remedies to rectify the violations of the Act by the Employer herein. As the majority has indicated, this is a dual-motive discharge case. In such cases, we have, since its adoption in Holmes v. Town of Old Orchard Beach, supra, consistently applied the Wright Line test. The use of said standard, in the analogous private sector context, has been approved by the Supreme Court of the United States. N.L.R.B. v. Transportation Management Corp., supra. The Board's interpretation of the Wright Line test has been that, in order to establish unlawful discrimination and, hence, illicit interference or coercion, the Complainant must prove, by a preponderance of the evidence, that con- duct protected by the Act was a motivating factor for the actions taken by an employer against an employee. once such a prima facie case is established and the employer is unable to rebut it, the employer can avoid being adjudicated of having violated the Act by proving, by a preponderance of the evidence, that it would have taken the same actions in the absence of any protected conduct. Ross v. Portland School Committee, MLRB No. 83-04, at 22 (Aug. 29, 1983); Ritchie v. Town of Hampden, MLRB No. 83-15, at 5-6 (July 18, 1983), aff'd. sub nom., Town of Hampden v. Maine Labor Relations Board, Penobscot Super. Ct., Docket No. CV-83-353 (Sept. 14, 1984). I agree with the majority that the facts cited in their opinion clearly establish that the Employer was motivated by anti-union animus, in violation of Sections 964(1)(A) and (B), in suspending and discharging Cpl. Cookson and Officer Pullen. Under the second prong of the Wright Line test, I disagree with the majority in that I believe that the facts in this case demonstrate that Cookson and Pullen would have neither been suspended nor discharged, if they had not engaged in activities protected by the Act. -10- I will first discuss Officer Pullen's situation. At page 5 of their decision, the majority stated that "[f]or technical reasons it was to Pullen's advantage to have it appear that he intended to con- duct a formal course of instruction on February 1, 2 and 3, 1983, and subsequently that he had in fact given the instruction on those dates." To set the record straight, I will clarify both the "technical reasons" referred to by the majority and the fact that Pullen received no personal gain from his actions. Prior to February of 1983, Pullen had performed extensive emergency medical work, on an exclusively volunteer basis, for the Monmouth Rescue Unit. In order to serve in that capacity, one must, annually, be licensed as an Emergency Medical Technician ("EMT") by the Maine Department of Human Services. During January of 1983, Pullen, then a 14-year veteran EMT, learned that the Department of Human Services would no longer routine- ly extend EMT licenses for those licensees who were actively engaged in qualifying for such renewal; Pullen's license was to expire on January 31, 1983. The Department of Human Services did, however, extend Pullen's EMT license to allow him to teach an EMT refersher course but not to perform emergency services. Since the only gain Pullen received from his EMT license was the payment he received for teaching the February 14 to March 14, 1983 course and since his license had been extended by the State for that purpose, the only possible reason Pullen had to submit the documents, mentioned at page 5 of the majority report, was to renew his EMT license so that he could continue to perform volunteer work for Monmouth Rescue. Pullen received no other remuneration or gain for his actions. Applying the second tine of the Wright Line test to Officer Pullen, the majority, at page 5 above, describes his submission of documents, in connection with the February 1, 2 and 3, 1983 course, as "highly improper and inexcusable, especially for a police officer." Finding that Pullen's conduct warranted "some disciplinary action" and that discharge was "unnecessarily severe," Idem., the majority concluded that a three-week suspension without pay was a more appropriate penalty for Pullen's transgressions and have imposed the same, within the context of their remedial order. I believe the Board's action to be an erroneous application of the relevant portion -11- of the controlling Wright Line standard. Having held that the Complainant has established a prima facie case of unlawful discrimina- tion, as the majority did at page 4 of their decision, the inquiry at this juncture is what would the Employer's actions have been, in the absence of any conduct protected by the Act. I agree with my colleagues that discharge was too severe a penalty for Pullen's actions; however, rather than engaging in speculation as to what discipline would have been appropriate therefor, I prefer to look at the consequences incurred by Officer Bates in connection with his actions in the EMT certification incident. Bates, a non-union employee, allowed Pullen to submit his name, as a student at the February 1, 2 and 3, 1983 course, in documents to the Kennebec Valley Vocational Technical Institute ("KVVTI"), knowing that Pullen did not intend to teach a formal course on those dates. Bates also certified that Cookson was affiliated with the Monmouth Rescue Unit--in satis- faction of an independent requirement for EMT license renewal--when, in fact, Cookson had never been so affiliated. Although he had par- ticipated in the February 14 to March 14, 1983 EMT course, Bates sub- mitted the February 3rd course completion certificate to the State Department of Human Services in order to renew his own EMT license. On a considerably later date, Bates had the date on said certificate amended by a KVVTI official to reflect a course completion date of March 14, 1983. As a result of his involvement in the EMT incident, Bates attended a hearing before Chief Jackson and received no discipline in connection therewith. In my view, this last fact, taken from the Chief's own testimony at Vol. II, pages 853-854 of the Transcript, clearly demonstrates that, in the absence of any protected conduct by Pullen and any anti-union animus by the Employer, Pullen would not have incurred any discipline at all under the facts of this case and I would so hold. The majority applied the second prong of the Wright Line test to Cpl. Cookson's situation and concluded that the Employer would have discharged the employee, in the absence of any anti-union motivation. At page 7 above, the majority have stated that Cookson's involvement with the EMT situation is "but the last in a long series of episodes in which he demonstrated an inability to adhere strictly to the -12- truth." At the outset, I believe that it is important to note that possession of an EMT license is totally unrelated to Cookson's employment as a police officer in the Town of Winthrop. Although the employee's misconduct in Ritchie v. Town of Hampden, supra, was far more egregious than that here, the Board concluded that the employee would not have been discharged, had he not been the main union spokesman. In that case, the employee admitted that he had filed falsified traffic reports which could have resulted "in an innocent member of the public receiving a traffic ticket." Ritchie, supra, at 8. Despite the fact that the dishonesty here, if any, was completely unrelated to Cookson's employment, the majority concluded that be would have been discharged as a result of it in any event. In order to evaluate the majority holding, one must examine the "long series of episodes" referred to at page 7 above. The events constituting said series are listed in a letter to Cookson from the Town Manager, dated August 23, 1983, which is part of Union Exhibit 18. The four occurrences cited are: a February 9, 1982 accident at the Augusta District Court; an April 21, 1982 accident where Cookson struck a rock with a police cruiser, while leaving his driveway; a January 7, 1983 accident, where Cookson struck a guardrail; and an accident on April 2, 1983. The uncontroverted evidence presented before the Board was that the first such accident and any discipline received as a result thereof had been expunged from Cookson's personnel file, as part of a grievance settlement agreement. Since all reference to the February 9, 1982 accident was expunged from Cookson's record, the Employer is estopped from basing subsequent discipline thereon and I believe that it was improper for the Board to consider said incident in this case. The second event was the accident of April 21, 1982. In this instance, Cookson struck the rock, met a short time later with Officer Andrews, a non-union employee, and failed to mention the acci- dent. Within minutes, Cookson showed the damage to the Union steward and explained how the accident had occurred. Cookson then showed it to Andrews, claiming that he had just discovered it. The only lack of truthfulness in this incident was Cookson's failure to mention the damage, when he first met with Andrews, and his later comment con- cerning its recent discovery. These facts cannot be evaluated proper- -13- ly outside of their factual context. At the time of this accident, the Chief had recently been successful in coercing Cookson into decer- tifying the Union as the bargaining agent for the Corporals' unit and then Cookson had received severe discipline as a result of the cir- cumstances surrounding the February 9, 1982 accident. Cookson, who had been a Union steward until the decertification activity, was understandably wary of non-union employees and of Andrews in par- ticular, since Andrews had played a critical role in resurrecting the February 9th incident after it had been initially resolved. Cookson's desire to discuss the accident with the Union steward, before revealing it to Andrews, was totally reasonable under the circum- stances. It should also be noted that both of the foregoing accidents had occurred well over a year before being raised in the August 23, 1983 letter and there was no evidence presented that Cookson had been called to task at all at the time of the second accident in connection therewith. The third accident was that of January 7, 1983, where Cookson struck a guardrail. Cookson stated that he had lost control of his vehicle, on a snow covered road, while avoiding another vehicle. The Chief testified that he had been at the scene and, although Cookson's vehicle tracks were clearly visible, there were no other tracks in the area. Once again, there was no evidence that Cookson received any sort of discipline at the time of this incident and it seems entirely possible that the Chief was looking in the wrong place for the other vehicle's tracks. The final relevant event is the accident of April 2, 1983. Cookson, while chasing another vehicle over rough terrain, struck and damaged a pine tree on the property of a Mr. Firlotte in Winthrop. The element of dishonesty allegedly pres- ent in this instance was an averment by the Chief that, in response to Mr. Firlotte's questioning, Cookson denied having struck the tree. Transcript, Vol. II, at 758. Cookson's report to the Chief concerning the incident, dated April 2, 1983, stated that he had struck a pine tree on Firlotte's property and, although testifying before the Board on two separate dates, Firlotte never stated that he had asked and Cookson had denied hitting the tree. There was, therefore, no element of dishonesty or fabrication by Cookson in this episode. I believe that, because Cookson had been disciplined and the Employer had agreed -14- to expunge all reference to the February 9, 1982 accident from his personnel file, that incident should not have been used against him either by the Employer or by the Board. Any lack of candor between Cookson and Andrews, in connection with the April 21, 1982 accident, was completely reasonable and understandable under the circumstances. There may have been a difference of opinion as to the cause of the January 7, 1983 accident; however, it did not rise to the level of dishonesty on Cookson's part. There was absolutely no fabrication in connection with the April 2, 1983 accident, except perhaps by the Chief, who was quite upset before the Board because Firlotte had had "a memory lapse" before the Board. Transcript, Vol. II, at 759. In the absence of anti-union animus on the part of the Employer, Cookson would not have been discharged. The events allegedly justifying said discharge were either unrelated to Cookson's employment, were "stale," or did not indicate any dishonesty on his part. The Employer's conduct in this matter constituted a clear viola- tion of Section 964(1)(D) of the Act and the majority's treatment of the evidence establishing such violation, discussed below, was erro- neous as a matter of law. Section 964(1)(D) protects the rights of employees and employee organizations to file complaints or petitions with or to give testimony before the Board by "protect[ing] employees involved in any stage of a Labor Relations Board proceeding from a wide variety of discriminatory actions by the employer. See, e.g., NLRB v. Scrivener, 405 U.S. 117, 121-125 (1971)." Southern Aroostook Teachers Association v. Southern Aroostook Community School Committee, MLRB Nos. 80-35 and 80-40, at 24 (April 14, 1982); cited with approv- al, Teamsters Local 48 v. Town of Kittery, MLRB No. 84-25, at 5 (July 13, 1984). Because this violation assails both the integrity of the Board's function, as well as the rights of the individuals appearing before the Board, this may well be the most serious viola- tion of the Act involved in this case. The Board must rely upon indi- vidual employees and employee organizations to bring violations of the Act to the Board's attention. If the public employer may retaliate with impunity against employees who either file complaints or give evidence before the Board, the entire concept of regulated labor rela- tions embodied in the Act will be frustrated. -15- The Employer's violation of Section 964(1)(D) was patent in the case of Officer Pullen and, although somewhat less clear, was, nevertheless, present in regard to Cpl. Cookson. During the first day of hearing in this matter, October 26, 1983, Officer Pullen testified on behalf of the Union. On two occasions, he lost his composure and was unable to continue with his testimony and, as a result, Alternate Chairman Webber specifically assured Pullen that "you will not be released from your duties as a police officer just because you came here and testified today." On October 27, 1983, Pullen testified at Cpl. Cookson's disciplinary hearing before the Town Manager in the Town of Winthrop. One of the subjects discussed by Pullen was the EMT refresher course. On October 28, 1983, Officer Pullen received the first notice that the Employer was charging him with misconduct, in connection with the February 1, 2 and 3, 1983 refresher course, and that he had been suspended indefinitely, without pay, pending the results of a discharge hearing. At the outset of the second day of hearing before the Board on November 10, 1983, the Town's Attorney outlined the Employer's position that Pullen had not been suspended because of his testimony before the Board. The Attorney stated: "When we were here last time, we were halfway through a disciplinary hearing in Winthrop on certain charges that were issued against Corporal Cookson. Officer Pullen had not testified in that disciplinary hearing the day we were here. He testified the following day. As a result of his testimony at that hearing, the following day in Winthrop it became clear that he had in fact committed a Class D crime . . . That was the conclu- sion, at least, of the Chief in issuing the suspension. No final determination has been made by the Manager as to that. But it seems unfortunate to me that all of this had to happen at once because motives get confused, but I would like to say that under ordinary circumstances the commission of any crime by a police officer is intolerable conduct and justifies the immediate suspension, did in this case, and I would have done anything, in fact bent over backwards, to try to find a way to avoid that kind of action because we were involved in this prohibited practice complaint procedure. It does not look good, and I recognize that, and I didn't want to have . . ." Transcript, Vol. I, at 204-205. This story, implying that the timing of Pullen's suspension merely happened to coincide with his appearance before the Board and that the Employer's discovery, on October 27, -16- that Pullen may have violated the Maine Criminal Code necessitated the suspension at that time, is inherently incredible. On October 14, 1983, two weeks before Pullen's suspension, the Town's Attorney in a letter to the Union, charged that Cpl. Cookson had committed unsworn falsification, a Class D crime in the State of Maine. The specific allegations contained in said letter were: "l. On or about March 1, 1983, Corporal Cookson submitted an application for a renewal of his Emergency Medical Technician license. The application indicated that he took a mandatory refresher course in February of 1983. It is alleged that the course never took place. 2. In support of the statement that the course had been completed, Corporal Cookson submitted a certificate of course completion issued by the Kennebec Valley Voca- tionsl [sic] Center. It is alleged that Corporal Cookson knew that the certificate was false and fraudulently obtained." Union Exhibit No. 20. The certificate referred to in paragraph number 2 above is Employer's Exhibit No. 7, which was signed by Pullen as instructor of the course. Secondly, any suggestion that the Employer was unaware of Pullen's involvement in the EMT incident until October 27th was dispelled by the Employer's cross-examination of Pullen before the Board on October 26, 1983. Transcript, Vol. I, at 190-197. The Employer asked Pullen several questions which clearly indicated that it had knowledge of Pullen's involvement in the course. The EMT issue had not been raised, before the Board, prior to said cross- examination. It is clear that, although the Employer knew of Pullen's involvement in the EMT affair, at least by October 14, 1983, the Employer, all pleas of exigency notwithstanding, did not suspend Pullen, until after he had testified before and received an assurance of protection from the Board. The majority, at page 6 above, essen- tially said that the hypothetical "reasonable man" could conclude that the Employer's suspension of Pullen was the result of his giving testimony before the Board. This is a violation of Section 964(1)(D) of the Act and I would so hold. The majority dismisses the possibility that the Employer violated Section 964(1)(D) of the Act, in connection with Cpl. Cookson, by stating: "[w]e do not here encounter the problem of disciplinary -17- action in retaliation for the giving of testimony adverse to the Employer's interest since the disciplinary action preceded his testimony." Page 7, supra. Despite the fact that Cookson had not testified at the time of his suspension, he was a central figure in the prohibited practice complaint, he was listed as a Union witness in the Pre-Hearing Conference memorandum and order, and everyone con- nected with the case knew that he would testify on behalf of the Complainant. In my view, there is no question that the Employer's timing, in suspending Cpl. Cookson, was the result of his anticipated testimony against the Employer before the Board. Although the Employer first brought its "charges" against Cookson on August 23, 1983, and filed additional charges on September 28, 1983 (Union Exhibit No. 21) and on October 14, 1983 (Union Exhibit No. 20), Cookson was not suspended until after the hearings before the Board had begun. The facts herein clearly constitute a violation of 26 M.R.S.A. 964(1)(D) and I would so hold. I believe that the majority has committed an error of law in failing to properly evaluate the facts which established the Employer's violations of Section 964(1)(D). My colleagues, at pages 6 and 7 of their decision, considered the evidence relevant to said violations as a mere "further consideration" in their application of the Wright Line standard in connection with the violation of Sections 964(1)(A) and (B). Section 964(1)(D) is a separate and distinct pro- vision of the Act and, if the evidence in a given case establishes a violation thereof, it is the Board's duty to adjudicate the trans- gressor in violation of said Section and to provide a remedy therefor. 26 M.R.S.A. Sec. 968(5)(C). As I have noted above, the majority has essentially held that the Employer violated Section 964(1)(D), in con- nection with Officer Pullen herein, and have failed to provide any remedy for said violation. This omission on the part of the majority members constitutes an error of law. In addition to failing to provide a remedy for the violation of Section 964(1)(D), the majority has not ordered adequate remedies to rectify the violations of the Act herein and to fully effectuate the policies of the Act. Since I would hold that neither Cookson nor Pullen would have incurred any discipline in the absence of their -18- engaging in activities protected by the Act, I would order the Employer to offer reinstatement to both individuals and to compensate them, with full back pay and benefits, plus interest, for the period from October 28, 1983 to the date of the offers of reinstatement. I would lessen the Employer's debt to each individual by the amount of actual earnings and benefits, which each received during said inter- val. Further, I would order all reference to the suspensions and discharges, which were the subject of this action, deleted from each employee's personnel file. Even if I could accept the majority's decision that Cookson would have been discharged in any event, the protection of Board witnesses, afforded by Section 964(1)(D), would, nevertheless, require that Cookson receive full back pay and benefits, plus interest, less the amount of his earnings and benefits received during said interim, for the period from October 28, 1983 to the date of this decision. One final comment must be made concerning the conduct of the Employer's attorney in this case. The counsel's use of superfluous witnesses and his repetitive questioning of necessary witnesses resulted in needlessly prolonging the hearing process. The attorney repeatedly engaged in colloquy with the Union's representative, without going through the Chairman, and, rather than filing a proper objection thereto, often interjected answers to questions which he felt might be damaging to his position. While this was his first appearance before the Board and his behavior might be due to a lack of litigation experience, the attorney's conduct shouldn't be allowed to pass without notice. Dated at Augusta, Maine, this 15th day of November, 1984. MAINE LABOR RELATIONS BOARD /s/________________________________ Harold S. Noddin Employee Representative -19- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT discharge, suspend, or otherwise discriminate against regular, full-time employees of the Winthrop Police Department because of their interest in or activity on behalf of the Union or any other labor organization. (2) WE WILL NOT in any other manner interfere with, restrain or coerce regular, full-time employees of the Winthrop Police Department in the exercise of their rights to engage in union activities. (3) WE WILL offer Fred A. Pullen immediate and full reinstatement to his former position of Patrolman with the Winthrop Police Department and make him whole for any loss of earnings or benefits incurred by his being suspended or discharged, from November 18, 1983 until the date of the aforesaid offer of reinstatement. (4) WE WILL, within 20 days of the date of the Board's Decision and Order, notify, in writing, the Maine Labor Relations Board, at its offices in Augusta, Maine, of the steps we have taken to comply with the Decision and Order. TOWN OF WINTHROP Dated: _______________________ By: _______________________________________ Marshall Hills, Town Manager This Notice must remain posted for 30 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provi- sions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333, Telephone 289-2015.