STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-17 Issued: August 13, 1985 ________________________________ ) FRED A. PULLEN, JR., ) ) Complainant, ) ) v. ) ) TOWN OF WINTHROP ) ) and ) DECISION AND ORDER ) MARSHALL HILLS, Town Manager ) of the Town of Winthrop, ) ) and ) ) CHARLES JACKSON, Police Chief ) of the Town of Winthrop, ) ) Respondents. ) ________________________________) The questions presented in this prohibited practices case are whether the Town of Winthrop, its Town Manager, Marshall Hills, and its Police Chief, Charles Jackson (hereinafter referred to together as "Employer") violated 26 M.R.S.A. Secs. 964(1)(A), (B), (C) or (E) by ter- minating the employment of Fred A. Pullen, Jr., ("Employee") as a police officer with the Winthrop Police Department, on March 11, 1985. We hold that, by discharging the Employee under the circumstances of this case, the Employer interfered with, restrained, or coerced the Employee in the exercise of the rights guaranteed by 26 M.R.S.A. Sec. 963. This action by the Employer constitutes a prohibited practice in violation of 26 M.R.S.A. Sec. 964(1)(A). We will order appropriate reme- dies to effectuate the policies of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. ch. 9-A. The Employee's complaint, filed pursuant to 26 M.R.S.A. Sec. 968(5)(B), was received on April 26, 1985. The Employer filed its answer on May 17, 1985, denying that its action transgressed any pro- vision of the Act and moved to dismiss the Employee's complaint. -1- A pre-hearing conference on the case was held on May 21, 1985, Chairman Edward S. Godfrey presiding. On June 12, 1985, Chairman Godfrey issued a Prehearing Conference Memorandum and Order, the con- tents of which are incorporated herein by reference. A hearing on the merits of the case was held on July 10, 1985, Chairman Edward S. Godfrey presiding, with Employer Representative Thacher E. Turner and Alternate Employee Representative Russell A. Webb. The Employee was represented at the hearing by Mr. David L. Berg, Labor Consultant, and the Employer was represented by Lee K. Bragg, Esq. The parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to make argument. JURISDICTION The Complainant, Fred A. Pullen, Jr., is a public employee, within the definition of 26 M.R.S.A. Sec. 962(6), of the Winthrop Police Department. The Town of Winthrop is the public employer, within the definition of 26 M.R.S.A. Sec. 962(7), of the employees of the Winthrop Police Department. At all times relevant hereto, Marshall Hills has been the Town Manager and Charles Jackson has been the Police Chief of the Town of Winthrop. Since the acts alleged concerning Hills and Jackson are said to have arisen out of and been performed by them in the course of their employment by the Town, Hills and Jackson are public employers of the employees of the Winthrop Police Department. The jurisdiction of the Maine Labor Relations Board ("Board") to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Sec. 968(5). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. The Complainant, Fred A. Pullen, Jr., is a public employee, within the definition of 26 M.R.S.A. Sec. 962(6), of the Winthrop Police Department. 2. The Town of Winthrop is the public employer, within the defi-- nition of 26 M.R.S.A. Sec. 962(7), of the employees of the Winthrop Police Department. -2- 3. At all times relevant hereto, Marshall Hills has been the Town Manager and Charles Jackson has been the Police Chief of the Town of Winthrop. Since the acts of Hills and Jackson arose out of and were performed by them in the course of their employment by the Town, Hills and Jackson are public employers, within the definition of 26 M.R.S.A. Sec. 962(7), of the employees of the Winthrop Police Department. 4. On December 22, 1984, Pullen was reinstated as an employee of the Winthrop Police Department, pursuant to the order of this Board, in Teamsters Local Union No. 48 v. Town of Winthrop and Charles H. Jackson, MLRB No. 84-06 (Nov. 16, 1984). The Board's order provided, in relevant part, as follows: "l. That the Respondent Town of Winthrop, its representa- tives 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 organi- zation. (b) In any other manner interfering with, restrain- ing 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 with- out pay ordered on October 28, 1983 is hereby limited to a period of three weeks terminating on November 18, 1983. 5. When Pullen resumed his duties with the Winthrop Police Department, he was aware of the Department's rule or policy requiring its police officers to "reside" within ten miles of the Winthrop Town Hall. 6. Article XLII of the current collective bargaining agreement for the Winthrop Police Department Patrolmen and Dispatchers Bargaining Unit states: "As a condition of employment, the Town of Winthrop may require new employees to reside within a ten (10) mile radius of the Winthrop Town Hall prior to completion of the first year of employment." -3- 7. No residency requirement is explicitly set forth in the Winthrop Police Department's Standard Operating Procedure. 8. Despite the fact noted in the preceding paragraph, it was well understood by members of the Winthrop Police Department that a ten-mile rule for residency was in effect and Pullen was aware of said rule when he resumed his duties on December 22, 1984. 9. During January and February of 1985, Pullen rented a room with a kitchenette at the Cobbossee Motel within ten miles of the Winthrop Town Hall, at the cost of $300.00 per month, and had a pri- vate line telephone installed in his room for the purpose of establishing a residence to comply with the police department's rule or policy. 10. During his employment with the Winthrop Police Department in 1982-1983, Pullen had been given to understand by Chief Jackson that living at the Cobbossee Motel satisfied the department's residency requirement, even though his family lived elsewhere. 11. From January 2, 1985 to February 8, 1985, Pullen slept at the Cobbossee Motel on the average four times per week; the other nights and days he slept at his mother's house in Oakland or at his mother- in-law's house in Waterville. 12. From conversations with other police officers in January of 1985, Pullen got the impression that Chief Jackson may not have been satisfied that Pullen's living arrangements met the residency requirement. 13. Pullen was never officially warned that his living arrange- ments would not satisfy the residency requirement; Pullen never inquired whether said arrangements were satisfactory. 14. There is no evidence that the police department ever tried unsuccessfully to reach Pullen at the Cobbossee Motel for duty purposes. -4- 15. Corporals Bates and Grimes of the Winthrop Police Department took it upon themselves to have Pullen's presence at the Cobbossee Motel monitored by checking in the early morning hours to see if his car was there. Chief Jackson was aware of this monitoring activity. Pullen was the only Winthrop Police officer whose activities were sub- jected to such surveillance. 16. The Corporals testified that, on those occasions when Pullen's car was not at the Cobbossee Motel, it was at his mother-in- law's house in Waterville. 17. Pullen testified that, from January 2 to February 8, 1985 and on the advise of his attorney, he frequently used his wife's car while he was in Winthrop in order to make more difficult the sur- veillance, which he suspected was occurring. 18. On or about February 8, 1985, Pullen asked for and was granted a leave of absence without pay for two weeks. Pullen testified that he sought this leave because: "Well, I didn't have any coming, and I wanted the time off because I was getting tired of being harassed about this residency and holding--I felt like somebody was holding a gun over my head, that we're going to fire you tomorrow morning if you don't do what I want you to do, so I finally got sick of it and saw that I guess this was not going to work, and I wanted the time off for my attorney and the town attorney to get together and they were going to work out some sort of an agreement that they wanted to have me resign for a flat fee." 19. When he returned to duty on or about February 22, 1985, Pullen was told by Corporal Bates that the Town had given Pullen two weeks vacation with pay to begin forthwith. Pullen was not given any reason for that vacation. 20. From February 22 to March 8, 1985, Pullen was on paid vacation. 21. Although he had paid the rent for all of February, 1985, Pullen did not sleep or stay at the Cobbossee Motel during either of the vacation periods mentioned in paragraphs 18, 19 and 20 above. -5- 22. When Pullen reported for duty on March 8, 1985, Corporal Grimes told him that he need not go to work and that Chief Jackson wanted to see Pullen on Monday morning, March 11, 1985. 23. On Monday, March 11, 1985, Chief Jackson told Pullen that he was being dismissed for failure to comply with the department's resi- dency requirement and handed Pullen a letter to that effect. 24. Despite Chief Jackson's testimony that Pullen was terminated as a result of findings made at the meeting mentioned in the preceding paragraph, the letter of dismissal noted in said paragraph had been prepared and signed before the interview took place. 25. The Winthrop Police Department Standard Operating Procedure .provides, in part, as follows: "5. Off-duty officers are requested to notify the police station when they are going to be out of town, and no one at their residences, except on the 72-hour breaks. This is to assist the duty officer and dispatchers in emergencies when additional assistance is needed." 26. The notification procedure cited in the preceding paragraph was not treated as mandatory in practice. Compliance with it by mem- bers of the department was erratic. Pullen himself sometimes complied with it but usually did not. 27. Pullen was never told that he must comply with the notifica- tion provision of the Standard Operating Procedure and that non-compliance with it might have a bearing on whether his living arrangements satisfied the residency requirement. 28. Although in theory Chief Jackson may only recommend the hiring or firing of police officers in the Town of Winthrop, in prac- tice Town Manager Hills has authorized the Chief to hire and fire police department employees. DECISION The Complainant is before the Board seeking enforcement of the order issued in Teamsters Local 48 v. Town of Winthrop, MLRB No. 84-06 -6- (Nov. 16, 1984); aff'd. sub nom. Inhabitants of the Town of Winthrop v. Maine Labor Relations Board, Ken. Super. Ct. Docket Nos. CV-84-528 and CV-84-538 (July 11, 1985); appeal docketed, August 8, 1985. The relevant part of the Board's order directed: "l. 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 Decem- ber 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.' Town of Winthrop, supra, at 8. In the instant case, the Complainant avers that, by terminating his employment with the Winthrop Police Department on March 11, 1985, the Town of Winthrop has continued to gage in the course of conduct which was held to violate 26 M.R.S.A. Sec. 964 giving rise to our order in Case No. 84-06. While alternate means of challenging the adequacy of compliance with the Board's orders exist, we hold that it is proper procedure to seek such redress through a subsequent prohibited practices complaint as was done in this instance. The Employee's first averment is that his discharge violated 26 M.R.S.A. Sec. 964(l)(A). The controlling standard used in considering alleged violations of this section of the Act has been outlined at follows: "The test for a violation of Section 964(1)(A) does not turn on the employer's motive or on whether the coercion suc- ceeded or failed, but 'is whether employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.' NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30, at 3 (Aug. 24, 1978).' -7- Teamsters Local 48 v. City of Ellsworth, MLRB No. 81-17, at 6 (May 28, 1981); Accord Council 74, AFSCME v. Bangor Water District, MLRB No. 80-26, at 8 (Dec. 22, 1980). Under the circumstances presented, we hold that the Town of Winthrop, acting by and through its Chief of Police, Charles Jackson, under authority conferred to the Chief by Town Manager Marshall Hills, violated 26 M.R.S.A. Sec. 964(1)(A) by discharging Fred A. Pullen, Jr., from him employment with the Winthrop Police Department, on March 11, 1985. The relevant facts in this matter must be viewed in light of our decision in Case No. 84-06. In that case, the Board unanimously held that the dismissal of Fred A. Pullen, Jr., a known union supporter, from employment with the Winthrop Police Department had been motivated by anti-union animus, Town of Winthrop, supra, at 7 and 10, and that Pullen would not have been discharged but for his engaging in conduct protected by the Act. Ibid., at 7 and 12. Since Pullen had not been altogether blameless in his conduct, a majority of the Board ordered that his discharge be set aside and that he be reinstated to duty after serving a three-week suspension without pay. Ibid., at 7. The majority of the Board determined that said suspension was an appropriate sanction for Pullen's misconduct. Id. The facts underlying the present case occurred shortly after Pullen was allowed to return to duty, in compliance with paragraph 2 of our order in Case No. 84-06. Our conclusion that Pullen's discharge of March 11, 1985 violated 26 M.R.S.A. Sec. 964(l)(A) is based primarily on three factors established in the record. First, Pullen was singled out and subjected to surveillance by fellow officers shortly after returning to duty. Corporals Bates and Grimes testified that they had taken it upon them- selves to initiate such monitoring activities which were performed by the Corporals themselves and by other officers at the direction of at least one of the Corporals. Such surveillance included travelling to Waterville in the middle of the night while on duty in a Winthrop police cruiser. Chief Jackson was aware of the monitoring activity and tacitly approved thereof. The fact that Pullen was the only Police Department employee subjected to this surveillance strongly suggests that, from shortly after his return to duty, the Employer -8- was 'building a case" for his discharge. Second, although the Corporals went to considerable lengths to attempt to establish that Pullen was not complying with the Department's residency requirement, Pullen was never given any sort of official notice that his living arrangements did not comply therewith. During his initial tenure with the Department, Chief Jackson had expressly recommended that Pullen rent a room at the Cobbossee Motel, as the Chief himself had done when he first moved to Winthrop. Pullen was given to understand by Chief Jackson, during 1982, that living at the motel could satisfy the department's residency requirement, even though his family lived elsewhere. Although the character of Pullen's use of the motel room may have been different in 1985 from what it had been in 1982-1983, it was reasonable for Pullen to believe that his use of the motel room continued to satisfy the residency requirement, in the absence of official warning to the contrary from the Employer. This Board has held that the basing of discipline or discharge on con- duct of which the employee was not given warning and an opportunity to correct, permits an inference that such stated reasons for the discipline are pretextual and that the employer's actions in imposing the same violated Sec. 964(1)(A) of the Act. Bangor Water District, supra, at 6; Teamsters Local 48 v. Baker Bus Service, MLRB No. 79-70, at 9 (Mar. 3, 1980), aff'd sub nom. Baker Bus Service v. Keith, 428 A.2d 55 (Me. 1981). Third, on direct examination, Chief Jackson testified that he had terminated Pullen's employment as a result of findings made at the meeting between the two of them on March 11, 1985. On cross- examination, however, the Chief testified that the letter terminating Pullen's employment with the Police Department had been typed prior to the meeting of March llth. This inconsistency tends to undermine the legitimacy of the reason given to Pullen as justification for the discharge. Considered together, the foregoing factors have led the Board to conclude that Pullen's termination of March 11, 1985 violated Sec. 964(1) (A) of the Act. Our holding is also supported by two additional con- siderations: (1) at the hearing, the Chief seemed to be saying that -9- Pullen's use of the motel as a residence satisfied the residency requirement during 1982-1983 because Pullen had complied at that time with paragraph 5 of the Department's Standard Operating Procedure but that Pullen had failed to comply therewith in 1985, and (2) Pullen's discharge had the natural result of tending to discourage other employees of the Winthrop Police Department in the exercise of their rights guaranteed by the Act. The Chief's reference to the notification provision of the Standard Operating Procedure was inappropriate because, in practice, that paragraph was not treated as mandatory by either the Employer or by the employees of the Police Department. Pullen was never told that he must comply with the notification procedure and that non-compliance with it might have a bearing on whether his living arrangements satisfied the residency requirement. More importantly, the discussion concerning Pullen's non-compliance with the Standard Operating Procedure appeared to constitute a shifting of the reason for the discharge on the part of the Employer. Apparent reliance on a dif- ferent rationale for the discharge tends to subvert the initial reason given therefor and further supports our holding that the initial reason was pretextual. Baker Bus Service, supra, at 9-10. Finally, after our decision and order in Case No. 84-06, it was clear that Pullen was known, by both the Employer and the other employees of the Winthrop Police Department, to be a strong union sup- porter. In the present circumstances, Pullen's discharge in 1985 con- veyed the message to the Department's other employees that engaging in activities protected by the Act may result in discharge. Such a message inherently deters the other employees from exercising their rights in violation of Sec. 964(1)(A) of the Act. Baker Bus Service, supra, at 7. Having concluded that the Employer's actions violated 26 M.R.S.A. Sec. 964(1)(A), we need not reach the rest of the Complainant's alle- gations. We will,in addition to requiring the Employer to cease and desist from engaging in such unlawful conduct, order such remedies as are required to restore "the situation, as nearly as possible, to that which would have obtained" but for the occurrence of the prohibited -10- practice. Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852,.85 L.Ed. 1271 (1941). Such remedies are required to effectuate the policies of the Act. One final note must be made as a postscript to this decision. The Board is not suggesting, nor should this decision be interpreted to mean, that the quality of Pullen's use of the motel room during January and February of 1985 satisfied the Winthrop Police Department's residency requirement. The Board is merely saying that the manner in which said rule or policy was applied to Pullen in the circumstances violated Sec. 964(1)(A) of the Act. ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Sec. 968(5) (1974, Supp. 1984-1985) it is hereby ORDERED: 1. That the Town of Winthrop, its representatives and agents: (a) Cease and desist from, in any manner, inter- fering with, restraining or coercing Fred A. Pullen, Jr., in the exercise of the rights guaranteed him by 26 M.R.S.A. Sec. 963. (b) Take the affirmative action, necessary to effectuate the policies of the Act, of offering Fred A. Pullen, Jr., immediate and full reinstatement to his former position of Police Officer in the Winthrop Police Department and purge Pullen's personnel file, as well as all other Departmental records, of all references to said discharge. (c) Pay to said Pullen the sum he would have earned, from and after March 11, 1985, from which will be deducted his net earnings from other employment as defined in Holmes, et al. v. Town of Orchard Beach, et al., MLRB No. 82-14 (Sept. 27, 1982), together with interest on said sum computed as set forth in said decision. -11- 2. That the Respondent post in the Winthrop Police Department, in such place as notices are normally posted for the attention of the regular full-time Officers thereof, a copy of the attached "Notice." The copy of this notice, after being signed and dated by the Chief of Police, Charles Jackson, agent or representative of the Respondent Town of Winthrop, 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. 3. The Respondent Town of Winthrop shall notify the Executive Director within 20 days from the date of this order as to what steps have been taken to comply with the order. 4. If within 30 days of the date of this order, the parties have not agreed on the amount of back pay, interest, or net benefits due to Fred A. Pullen, Jr., the parties shall proceed in the manner set forth by this Board in Case No. 82-14. Dated at Augusta, Maine, this 13th day of August, 1985. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised of Edward S. Godfrey, Chairman their right pursuant to 26 M.R.S.A. Sec. 968(5)(F) (Supp. 1985) to seek review of this decision and order /s/________________________________ by the Superior Court by Thacher E. Turner filing a complaint in Employer Representative accordance with Rule 80B of the Rules of Civil Pro- cedure within 15 days of the date of the decision. /s/________________________________ Russell A. Webb Alternate Employee Representative -12- 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 in any other manner interfere with, restrain or coerce Fred A. Pullen, Jr., in the exercise of his rights guaranteed by 26 M.R.S.A. SEC. 963. (2) WE WILL offer Fred A. Pullen, Jr., immediate and full reinstate- ment 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 discharged, from March 11, 1985, until the date of the aforesaid offer of reinstatement. (3) 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 WINTRHOP Dated: _______________________ By: __________________________________ Charles Jackson, Chief of Police __________________________________________________________________ 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 provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333, Telephone 289-2015.