Teamsters v. Town of Fairfield, No. 94-01, Interim Order, Oct. 1, 1993,  
Interim Order, May 18, 1994, Decision and Order, Dec. 5, 1994 

                                    Case No. 94-01
                                    Issued:  October 1, 1993  

               Complainant,         )
                                    )     INTERIM ORDER
          v.                        )
TOWN OF FAIRFIELD,                  )
               Respondent.          )

     On September 13, 1993, a prehearing conference was held in
the above-captioned case.  Oral argument was held on the request
for deferral to arbitration made by the Town of Fairfield,
pursuant to Rule 4.07(D) of the Board's Rules and Procedures. 
After consideration of arguments made by the parties, the
prehearing officer denied the request for deferral.  Pursuant to
Rule 4.07(D), the Town has appealed the prehearing officer's

     We agree with the prehearing officer that the complaint
includes allegations that cannot be deferred to arbitration.  We
also agree that because the issues in this case are so inter-
twined, they cannot reasonably be separated and resolved in
separate forums.1  Since the Teamsters have expressly agreed to
forego arbitration,2  there is no danger that it will have "two
bites at the apple" on arbitrable issues.  Accordingly, we affirm

     1The Town agrees that this is the case.

     2For National Labor Relations Board's application of its
Dubo deferral policy in these circumstances, see 1 The Developing
Labor Law 1029, n. 119 (3d ed. P. Hardin ed. 1992).   


the decision of the prehearing officer that the Town's request
for deferral is denied.                

Issued at Augusta, Maine, this 1st day of October, 1993.

                              MAINE LABOR RELATIONS BOARD

                              Pamela D. Chute
                              Alternate Chair

                              Howard Reiche, Jr.
                              Employer Representative

                              George W. Lambertson
                              Employee Representative       


                                      Case No. 94-01
                                      Issued:  May 18, 1994
                Complainant,  )
            v.                )           INTERIM ORDER
TOWN OF FAIRFIELD,            )
                Respondent.   )

     On April 13, 1994, the Teamsters filed a motion to reopen
the record to receive "vital documents, termed as the
"Independent Investigative Report on the Appointments and Oaths
of Kelly Whitney and Fairfield Police Department,'" on the basis
that they are "directly related to the issues of credibility and
intent" and "pertain to testimony and events which were
deliberately testified to otherwise during hearings of 94-01."

     Reopening the record after the completion of the presen-
tation of both parties' cases is a matter within the sound
discretion of the Board.  See generally New England Hotel Realty,
Inc. v. Finley, 508 A.2d 121, 122 (Me. 1986).  Upon consideration
we conclude that the Teamsters' request must be and hereby is

Issued at Augusta, Maine, this 18th day of May, 1994.

                                MAINE LABOR RELATIONS BOARD

                                Peter T. Dawson

                                Howard Reiche, Jr.          
                                Employer Representative

                                George W. Lambertson
                                Employee Representative


                                      Case No. 94-01
                                      Issued:  December 5, 1994

              Complainant,  )
     v.                     )         DECISION AND ORDER
               Respondent.  )

     On June 21, 1993, Teamsters Union Local 340 (Teamsters)
filed a prohibited practice complaint (PPC) with the Maine Labor
Relations Board (Board) in which the Teamsters allege that the
Town of Fairfield (Town) has violated 26 M.R.S.A.  964(1)(A),
(C), (D) & (E) and 965(1) (1988) by coercing an alternate
Teamsters' shop steward, dealing directly with unit members
during negotiations, placing the Teamsters' chief steward, Gary
Moen, on administrative leave without explanation, suspending a
unit employee for discussing a grievance, suspending two unit
members and terminating the Teamsters' chief steward for
concerted union activities.  The Teamsters' complaint avers that
the above-referenced Town actions had as their purpose coerced
employee agreement to the Town's bargaining demands.

     The Town filed an Answer and Counterclaim on July 27, 1993.  
 The answer requests deferral to a scheduled arbitration
proceeding.  The answer states that the Town's representatives
did meet with union members on February 4, 1993, that the meeting
was attended by the Teamsters alternate steward John Emery and
that the meeting was informational and conducted for the purpose
of correcting a miscommunication by the mediator to the Teamsters
respecting the Town's agreement to a Teamsters' bargaining
request.  The Town denies coercing anyone, denies interfering
with negotiations and states that it informed Moen that he was


being placed on administrative leave pending investigation of
allegations that he had "been secretly tape recording his
conversations with the Chief."  The answer states that officer
Dana McInnis was suspended "for lying to the Chief regarding his
misuse of the Police Department photocopier and for disobeying a
direct order concerning preservation of the confidentiality of
the Department's internal investigation into Gary Moen's
[alleged] misconduct."  The answer asserts that Moen was
terminated by Fairfield Police Depeartment (FPD) Chief John F.
Pouliot for "numerous acts of disloyalty and insubordination"
consisting of secret tapings of FPD conversations, making
dishonest statements concerning his taping when questioned by the
Chief, playing the tapes to persons outside the department,
encouraging others to tape the Chief, making derogatory
statements about the Chief and violating proper law enforcement
procedures.  Additionally, the answer avers that officers McInnis
and Jordan were not disciplined for protected concerted
activities but rather for secretly taping the Chief and playing
those tapes to other employees.  As defenses the Town advances
that the complaint fails to state violations of Section
964(1)(A), (C), (D), or (E) as a matter of law, and fails as a
matter of fact to allege a violation of Section 964(1)(B).  The
answer states that the Teamsters' allegations of direct dealing
are barred by waiver and latches.

     By way of counterclaim the Town asserts that the Teamsters
unlawfully predicated submission, for ratification, of the
parties' agreement-in-principle on all outstanding bargaining
issues upon the Town's withdrawal of disciplinary proceedings
against Moen, McInnis and Jordan.

     The Teamsters' August 23, 1993, response to the Town's
counterclaim states that ratification was not predicated to
depend upon withdrawal of disciplinary proceedings.  The
Teamsters allege in response that the contract remained unsettled


due to disagreement over health insurance issues and was
submitted to fact finding on that basis.  The answer to the
counterclaim states that the "discipline handed Sgt. Moen,
Officer McInnis and Jordan must be subject to the wright line
test (MLRB No. 86-01 Teamsters Union Local No. 48 v. Town of Fort
Fairfield)."  The Teamsters allege that in the circumstances no
ratification free of the effects of the Town's coercion could be

     On September 13, 1993, a prehearing conference was conducted
in this matter by Board Chair Peter T. Dawson.  At the prehearing
Chair Dawson entertained oral argument respecting the issue of
deferral.  On September 14, 1993, advance notice of the
prehearing officer's deferral decision was given to the parties.
The Town sought review by the full Board that day.  On September
15, 1993, Chair Dawson issued an interim order denying the Town's
request for deferral.  On September 29, 1993, a Prehearing
Conference Memorandum and Order was issued by Chair Dawson.  That
Prehearing Conference Memorandum and Order is hereby incorporated
in and made a part hereof.  On October 1, 1993, the Board, with
Alternate Chair Pamela D. Chute substituted for Chair Dawson,
affirmed the denial of deferral.  On September 29, 1993, the Town
sought Emergency Review and a Stay of the Board's decision and
asked the Kennebec County Superior Court to issue an Order
Compelling Arbitration.  The Superior Court denied these requests
on October 26, 1993.

     The Board, consisting of Chair Dawson, Employee Representa-
tive George W. Lambertson and Employer Representative Howard
Reiche, Jr., conducted a full evidentiary hearing in this matter
on November 1, 2, 8 and 10, 1993, January 27 and February 1,
1994.  All parties were afforded the opportunity to present
evidence and argument.  The Board denied an April 13, 1994,
request to reopen the record in a May 18, 1994, interim order. 
The parties filed simultaneous original and then response briefs,


the last of which were received June 21, 1994.  The Board
deliberated the case on August 24, and on November 30, 1994.

     The Town is represented in this case by attorney Linda D.
McGill and Ms. Julie A. Boesky.  The Teamsters are represented in
this matter by Teamsters' business agents Ernest Canelli, III,
and William Turkewitz.


     The Town is a public employer within the meaning of
26 M.R.S.A.  962(7) (1988).  The Teamsters are the bargaining
agent of a unit of the Town's law enforcement employees, within
the meaning of 26 M.R.S.A.  962(2) (1988), which includes all
Sergeants, regular Patrol Officers and Clerk-Matron-Dispatchers. 
The Teamsters have alleged that the Town has committed prohibited
practices proscribed by 26 M.R.S.A.  964(1)(A), (C), (D) and (E)
(1988), during the six-month period immediately preceding the
filing of the charge.  See 26 M.R.S.A.  968(5)(B) (1988).

                     POSITIONS OF THE PARTIES

     The Teamsters contend that under the direction of Town
Manager Peter McKenney, the Chief pretextually discharged Moen
and disciplined Jordan and McInnis, three staunch union
supporters, at a "time critical to the union's ability to stand
together and not be forced to accept the Town's proposals on two
major issues."  The Teamsters allege that the Town exploited a
four-to-three split in the unit, by conducting thinly-disguised
direct dealings and by suspending work rules regarding the
posting of union matters on the general bulletin board, to
facilitate the efforts of a dissident unit member to obtain
contract closure on terms acceptable to the Town and a minority
of unit members.


     The Teamsters argue that a lack of prior notice that taping
was not permitted, the timing and extent of the disciplinary
investigation and discipline occurring as a result of taping
activities by employees, the absence in the case of each of the
three disciplined employees of "a hearing, knowledge of the
charges of wrongdoing, a fair investigation, [and] the right to
confront their accusers," and the fact that the Chief "was the
complainant, the investigator and the decision maker, all wrapped
up as one agent for the Town" indicates that the Town was
animated by one purpose, "to destroy the Union by controlling its
members and eliminating those which could not be controlled."

     The Town contends that the Teamsters failed to prove that
the discipline of either Moen, Jordan or McInnis was based on
anti-union animus for protected activities and that the Board is
prohibited from examining the Town's actions further in light of
this failing.

     The Town contends that Moen was given notice and the
opportunity to explain whether he had secretly taped the Chief,
played the tapes for others and urged subordinates to secretly
tape.  The Town contends that it conducted a thorough
investigation and that the Chief dismissed Moen for engaging in
conduct which violates fundamental law enforcement policy, and
the specific requirements of his job description to keep
discussions with the Chief in confidence.  The Town contends that
Moen was dishonest during the investigation and that the
investigation revealed other improper work performance by Moen. 
The Town contends the Town's Rule and Regulation Number 1-11
permits immediate dismissal for "insubordination, dishonesty that
undermines the effectiveness of the agency's activities or
employee performance, improper disclosure of confidential
information and[/or] taking action which impairs the reputation
of the department."  The Town similarly argues that the contract
does not require progressive discipline for "serious


infractions."  The Town contends the contract requires no "pre-
disciplinary hearing even in the case of termination," and,
instead, provides post-termination grievance arbitration over
just cause.

     The Town states that because its discipline of Moen, Jordan
and McInnis was for just cause and was not motivated by anti-
union animus it cannot reasonably be said to interfere with,
restrain or coerce employees in the exercise of MPELRL protected
rights.  The Town contends its meeting with employees was for
clarification purposes only and was attended by the Teamsters'
alternate shop steward Emery, acting with apparent authority, in
chief steward Moen's absence.

     The Town counter-complains that after agreement-in-principle
on all outstanding bargaining issues at the parties' February 19,
1993, mediation session, "Canelli announced, for the first time,
that a contract could be ratified if and only if the Town would
drop all disciplinary proceedings against Sgt. Moen and Officers
McInnis and Jordan relating to their secret tape recordings of
the Chief."  The Town alleges that it denied the request and that
"as a consequence of the Teamsters' insistence on [this] non-
mandatory subject" the contract remained unsigned until March of
1993.  The Town states that the proposal's eleventh-hour
introduction, its non-mandatory nature and the Teamsters' refusal
to sign are all evidence of bad-faith bargaining, in violation of
26 M.R.S.A.  964(1)(E) (1988).
                        FINDINGS OF FACT 

     Complainant's exhibit No. 19, a November 18, 1992, Human
Rights Commission Report, concerning which ruling was reserved at
hearing, is hereby ruled inadmissible.

     At all times material to the charges in this case the
Fairfield Police Department (FPD) employed nine full-time police


officers in the positions of Chief (Pouliot), Captain (Frazee),
Sergeant (Moen), Patrolman (McInnis, Jordan, King, Emery and
Farris), and Clerk-Matron/Dispatcher (Kempers).  Patrolman Shaw
was on paid suspension during all times material to the
complaint.  The FPD employed an on-call Animal Control Officer
(ACO)(Tucker), a part-time Matron/ACO/Investigator (Whitney) and
a number of part-time reserve patrol officers (LaVerdiere, et.
al).  Reserve officers' salary is limited to $10,000 annually. 
The positions of Clerk-Matron/Dispatcher, Sergeant and regular
Patrol Officer are included in a collective bargaining unit
represented by Teamsters Local Union 340.  Sergeant Gary Moen has
served as an FPD Patrol Sergeant since his promotion by Pouliot
in October of 1991, and as a Teamsters' shop steward since
January of 1988, the year in which he was first hired by Pouliot.

     John F. Pouliot has been Chief of Police since October 1 of
1989, is a past FPD Teamsters' steward himself and has been
employed by the FPD for approximately 19 years.  Richard Frazee
is overall second-in-command of the FPD.  Sergeant Moen is
second-in-command with respect to, and is supervisor of, the
Patrol Division and in other respects is subordinate to Frazee. 
Moen performed an extended probationary period prior to promotion
to Sergeant.  There are 16 or 17 employees of the FPD directly
subordinate to Moen.

     John Emery served at most times material herein as alternate
FPD Teamsters' shop steward.  Article 12-Shop Steward, of the
parties' agreement recognizes the right of the Union to designate
an alternate shop steward who shall act only in the absence of
the shop steward.  The shop steward's authority under the
contract's terms is limited to investigation of grievances,
collection of dues, the transmission of written messages and
information from the local and its officers and, within specified
work hours, grievance processing and investigation.  Six
grievances have been filed during Pouliot's tenure.  Only one


grievance other than the Moen matter, which concerned the
supervision of an officer who was indicted for rape, has gone to
arbitration.  It was resolved.  Prior to arbitration, William
Hagerty, chairman of the Fairfield Town Council, wrote Canelli on
June 16, 1992, with respect to the grievance filed by George Shaw
as follows:

           This is to advise you that the decision of the Town Council
     concerning the grievance of Officer George Shaw is to DENY the

           This is based on the Fairfield Police Department's Rules and
     Regulations Number 1-11 Article IV Paragraph G Sub-section 3. 

           The Town Council also finds NO requirement in the Statutes
     or Rules and Regulations which require a HEARING except in the
     case of DISMISSAL.


                                      William Hagerty
                                      Chairman, Town Council

The other five grievances all concerned rearrangement of shifts
and the performance of shift work by Pouliot and Frazee in an
effort to cut expenses to satisfy a $14,000 shortfall in revenue. 
The FPD began experiencing funding difficulties during the summer
of 1992, due, in part, to the absence of one patrolman on paid
leave, which resulted in an overdraft of the Police Department
budget.  Pouliot sought to maintain departmental services through
issuance of a number of directives which included, among other
things, restrictions on comp time and overtime, curtailment of
the apprenticeship program and revision from a four-on/two-off,
to a five-on/two-off schedule.  The Teamsters objected by filing
a grievance report as well as a letter of notice with the Chief. 
The Chief denied the Teamsters' grievance in a July 2, 1992, memo
in which the Chief accuses Moen of usurpation of hiring,
scheduling and assignment authority.  The memo ends with the
following paragraphs:

     F.    The Union's failure to approach me with their concerns
           before filing this frivilous grievance. If you state the


           Town had options then why did not the Union approach me with

     G.    I also take great offense to my Patrol Supervisor, with the
           rank of Sergeant, presume to give me notice. As the Sergeant
           it is your duty to assure that all my assignments,
           directives, and orders are adhered to, not critiqued.

     H.    I am hereby denying your Grievance.

     On one occasion, Pouliot admonished Moen, at McKenney's
instruction, for accompanying Jordan to McKenney's office, to
which Jordan had been summoned for questioning during an
investigation of an allegation by Jordan that the Fire Chief had
been drinking on a call.  Pouliot's memo to Moen concerning the
matter states:

           Please submit to me within two (2) days from today's date,
     an explanatory letter explaining to me the following actions on
     your part:

     1.    Why did you find it necessary to accompany Officer Dana
           Jordan to the Town Manager's office when I explicitly
           requested Officer Jordan to meet with Mr. McKenney?  This
           appears to be an unauthorized intrusion on your part of an
           investigation being conducted by me and the Town Manager.

     2.    Why did you meet with Mr. McKenney this morning to discuss a
           memorandum issued last week by my office?  This appears to
           be a direct violation of the Chain of Command.  The
           memorandum was issued by me, you did not discuss it with me,
           and you did not have my permission to meet with the Town
           Manager on the matter.

     Kelly Whitney, who is presently assigned to the Detective
Division, began employment with the Fairfield Police Department
(FPD) in 1991, as a Matron.  Whitney was given additional
dispatching duties soon after beginning work at the FPD.  Whitney
was not a bargaining unit member but was supervised by Moen. 
Whitney possessed pre-service training, was sworn and possessed
arrest powers prior to being placed on full-time patrol by
Pouliot.  When Whitney was hired, she was placed in a "cadet
program" pursuant to which she was assigned under Frazee to the
Detective Division where she was used for undercover or covert
buying of drugs.  Moen openly disagreed with the Chief respecting
Whitney's performance of both undercover and uniformed duties


during the same time span. 

     Moen made comments insinuating that Whitney was not a police
officer and had merely been impersonating one.  Whitney, who at
that time possessed additional ACO duties, became concerned about
her authority to arrest and, therefore, about the potential of
lawsuits being filed against her.  Whitney discussed the matter
with Moen in March of 1992, and he expressed concern that she
might not obtain an adequate answer from Pouliot.  Whitney asked
Moen if she should tape a prospective conversation with the
Chief, which she was considering having to clarify her FPD
"sworn" status.  Moen suggested she should tape the Chief and
supplied her with a voice-activated microcassette tape recorder. 
Whitney used this recorder to record a portion of the
conversation which she had with Pouliot, in which he confirmed
her sworn status.  

     At the time of Moen's taping suggestion, Moen and Canelli
had concerns relating to Whitney's performance of unit work. 
Whitney's unit placement was at one point the subject of a
Teamsters' Unit Clarification Petition filed with the Board.
Whitney later worked as a police officer, investigating sexual
assaults on an on-call basis, or on assignment for specific
periods of time with an investigator. 

     The professional relationship between Whitney and Moen was
intermittently strained.  Whitney filed a complaint of unequal
treatment against Moen in December of 1991, alleging that she had
been discriminated against by Moen on the basis of her gender. 
Pouliot took Whitney's complaint seriously and although Whitney
desired to resolve the matter by meeting for discussion with
Pouliot and Moen, Pouliot insisted that she put the charges in
writing so as to facilitate an investigation.  Pouliot desired to
fully investigate these complaints to shield the FPD from suit. 
Pouliot told Whitney "she had enough to file a civil action
against Gary [Moen]" and that "she should pursue it."  At some


point, Whitney was offered the opportunity to press her
complaints during an expanded gathering of departmental personnel
and expressly declined.  The written complaint was determined by
Pouliot, after investigation, to be too vague to act upon.

     Since November of 1993, working in a part-time capacity as a
reserve, Whitney has been temporarily assigned to perform the
duties of a full-time employee who has been out on extended
leave.  As such, she is receiving the non-unit reserve officer
pay rate and no contractual benefits.  Whitney has overheard Moen
speak with other officers about taping the Chief.

     Moen had been verbally counseled several times about his
comments to, and reluctance to work with, Kelly Whitney and/or
other female police officers.  Whitney filed complaints against
Moen in December of 1991 and in June of 1992.  Moen grieved a
letter of reprimand from Pouliot with respect to the second of
Whitney's complaints.  The matter was expunged from Moen's file
as a result of settlement of the grievance.  Pouliot's February
11, 1992, letter to Whitney dismissing her first complaint lists,
among other things, the result of the Chief's investigation as
being his determinations that:


           FOR PATROL DUTY.




           THE DEPARTMENT.




           THE DEPARTMENT.

Moen's personnel file contains numerous letters of appreciation
and/or commendation from Pouliot.  He is generally regarded as a
competent and effective co-employee, an excellent Sergeant and a
strong steward.

     Two attempted disciplinary actions against Moen were
resolved and withdrawn as a result of discussions with the Chief. 
Until the most recent negotiations, Moen perceived his
relationship with the FPD administration to be "somewhat normal,"
although there were "occasional differences of opinion" or
confrontations in his steward capacity.

     Canelli, Moen and Pouliot met at the Community Center in
August or September of 1992 to discuss outstanding grievances. 
At one point during this grievance adjustment meeting, Moen left
the room, upon request, and Canelli and Pouliot engaged in
settlement discussions in his absence.  Pouliot and Canelli
testified differently about the reasons why Moen left and the
nature of their discussions in his absence.  Neither account is
more credible than the other and we therefore make no findings of
fact in this regard.

     Moen taped conversations at FPD because he distrusted Frazee
and Pouliot.1  Canelli encouraged such tapings for their use in
grievance processing and supplied Moen with tapes.  Moen
distrusted Pouliot due to circumstances such as conflicting Human

     1 On one occasion, Kempers informed the Chief that Frazee had
used a department vehicle to go to Augusta on personal business. 
Pouliot replied that the time was compensatory and that the
taxpayers didn't know that he wasn't using the vehicle for
official business.  Frazee was not disciplined.  Pouliot spoke
with Frazee and satisfied himself that Frazee had used Emery's
personal vehicle and not one of the department's.


Rights Commission testimony by Pouliot and Frazee respecting
whether Pouliot had warned Frazee about his speech in the
presence of "mixed company."  Moen's objective in taping was "to
cover discrepancies, to have an accurate set of notes to fall
back on should there be grievances filed or discipline levied,
and just to alleviate any inconsistencies."  Moen has taken
handwritten notes and later read and interpreted them to members
of the FPD unit.  At times, Moen perceived discrepancies between
his hand-written notes and the Chief's recollection of events. 
Moen also taped the Chief for self-preservation purposes because
he thought the "Chief was out to get him."  Moen wanted the tapes
to establish that Pouliot was saying one thing and doing another
in order to counter-sue the Chief, if necessary.

     Moen would call Canelli if he thought he had taped something
Canelli needed to hear. Moen has played tapes he made of the
Chief for Jordan, Farris, Emery and McInnis and for Fairfield
Fire Department (FFD) employees (Jim Lane, Jack Adams and Duane
Bickford), and admitted such to Pouliot during the Chief's
investigation.  Moen's playing of tapes was limited to matters
affecting the union's business such as personnel matters,
grievance investigations and possible grievances.  Moen played
the tapes he made to no one lacking a need to hear them.  During
the investigation by Pouliot, Moen limited his admission of such
tape playing to tapes "regarding union business."

     LaVerdiere, then a reserve officer and a past EMT of the
FFD, was present, along with Jordan and Farris, on at least one
occasion when Moen discussed his taping practices.  LaVerdiere
first learned that Moen was taping in late December of 1990. 
Walking into an office in December of 1992, LaVerdiere briefly
heard the voices of Moen and the Chief on a tape Moen was playing
for himself.  Moen shut the tape off and put the recorder away
when LaVerdiere walked into the room.  Moen told LaVerdiere he
was taping to protect himself.


     In early 1992, Moen taped Pouliot instructing him to speak
to Farris about incorrect log keeping.  Moen went to Farris' home
at Farris' request and while there played the tape for Farris and
his wife.  Moen encouraged other FPD employees to secretly tape
the Chief.  The tape of Moen and Pouliot's discussion about
whether the Town had told the mediator to convey a Town offer of
five or three days, on which tape Emery's comments were recorded,
was played at the fire barn by Moen, for Emery and others.  Moen
made the tape by walking into a routing briefing with Pouliot,
while having the tape turned on.

     The parties had hard negotiations and signed a contract
after seven months of bargaining.  There were two major Teamsters
issues during negotiations--health insurance and first refusal of
overtime.  The Teamsters "wanted to have five days . . . during
which they would have the first refusal of overtime."  Present at
the first negotiation session were, for the Town, Councilors
Richard Fortier and Dan Bickford, and Maine Municipal Association
representative Michael Wing.  Several union members were
occasionally present, and attending officially for the Teamsters
were Canelli, assistant negotiator Moen and Fire Department
assistant negotiator and fire rescue driver Jim Lane.  The
parties' ground rules established that their bargaining would be
open to the press.  Negotiations were primarily joint for both
the fire and police departments and were open to members of both
units.  The Town's "twenty-six or twenty-seven" initial proposals
were all perceived by the Teamsters to constitute "union give-
backs."  One negotiation session was held in August of 1992, and
two in October before the Town requested mediation.  After the
third session, negotiations began to deteriorate.  Outside the
negotiations the Chief suggested to Moen, "you've [the police
unit] got to get away from the fire department" and "to think
about yourself."

     Mediation sessions occurred in November and December of 1992


and in January and February of 1993.  A mediation session on
January 29, 1993, failed to result in a contract.  Prior to the  
January 29th session, the FPD unit and the Fairfield Fire
Department (FFD) unit had agreed that their negotiations position
was that the Teamsters "would pay 50 percent of any future
[health insurance] increases and that the . . . Town would pick
up all retroactivity back to July 1 of the contract year." 
Although an agreement by the Town to five days of first refusal
of overtime had previously been reached, on January 29th the
mediator told the Teamsters that the Town had agreed to only
three days.  The Teamsters thought the Town had reneged.  When
the mediator informed the Teamsters that the Town would not
accept the five-day proposal, the Teamsters and unit employees

     On February 1, 1993, the Town sent the Teamsters a copy of a
request for fact finding respecting the police unit which listed
the following as issues in controversy:

     Article 3 - Union Security; Article 5 - Management Rights; Article
     6 - Extra Contract Agreements; Article 7 - Probationary Period;
     Article 8 - Seniority; Article 13 - Grievance Procedure; Article
     14 - Rules and Regulations; Article 18 - Training; Article 19 -
     Safety; Article 20 - Uniforms; Article 21 - Vacation; Article 22 -
     Holidays; Article 23 - Retirement; Article 25 - Insurance; Article
     27 - Sick Leave; Article 28 - Injury Leave; Article 29 - Funeral
     Leave; Article 30 - Work Week Cycle and Overtime; Article 33 -
     Complaints Against a Police Officer; Article 34 - Wages.

     FPD Teamsters' shop stewards and alternates are not officers
of the union, and are not by virtue of their offices authorized
to negotiate.  Canelli appointed the shop stewards of the fire
and police departments as assistant negotiators in the last round
of negotiations.  It is customary for the chief steward to be on
the negotiating team.  The parties' agreement specifies on page 5
in Article 12 Section 1 that Alternate Shop Stewards "shall act
only in the absence of the Shop Steward."

     On February 4, 1993, Town Manager Peter McKenney called the
FPD, asked for John Emery and spoke to him about the need for a


meeting to clarify the overtime issue.  Assistant shop steward
Emery had been a member of the negotiating team from the
beginning of negotiations but neither in that capacity nor as
alternate steward, had the authority to call a negotiations
meeting between unit employees and representatives of management. 
The Chief also approached Emery about clarifying the Town's
overtime position.  Emery called a meeting so that unit employees
could talk to Fortier, Town Manager Peter McKenney and Pouliot
about negotiations issues concerning insurance and first refusal
of overtime.  Emery tried to contact Moen by phone and left
messages on the door of Moen's home.  Kempers helped call members
for the meeting.  Kempers and Emery jointly decided to get
everyone together.  Emery called Jordan, McInnis at home, Farris,
and tried to call Moen.  King and Kempers were working.  Emery
discussed the proposed meeting with fireman Jack Adams.

     Moen called Emery back later in the day.  Emery explained
that McKenney wanted to get together and that he had called the
other unit members.  Moen said he would try to get hold of
Canelli.  Moen unsuccessfully left messages for Canelli in
Madison, Maine, where he was then working, in an attempt to
inform him of Emery's planned meeting.  Moen spoke over the phone
with Emery prior to the meeting and said, "I['m not] happy with
it.  I['m not] comfortable with it.  Let me try to get a hold of
Ernie before we do anything."  Moen did not tell Emery that as
alternate steward he did not have the authority to have unit
members attend such a meeting.

     Emery told Kempers that because he couldn't contact Canelli,
Moen didn't want him to conduct the meeting.  Emery added that he
was going to do it anyway because he didn't want to wait.  Emery
erroneously thought his attendance was in his official alternate
shop steward capacity.  Moen didn't specifically caution Emery
against meeting without Canelli until he arrived at the station. 
Moen told Emery that Canelli was the sole negotiator and that it


was not right to meet without him.2

     Contrastingly, on one occasion before January 29 when the
parties were deadlocked, bargaining team assistants Lane and Moen
were requested by McKenney to come up and talk to him to see if
they couldn't come to an agreement and get things settled out. 
Their discussion concerned the back payment of insurance.  No one
attempted to call Canelli prior to this meeting.

     Moen arrived at the station just prior to the meeting and
confronted Emery who explained that the Town wanted "to talk
about the issues" and "to clear up some misunderstandings."  Moen
attempted to have the meeting postponed.  Moen told Emery that
the meeting would not be proper because Canelli had not been
given notice of it.  Much of the exchange between Moen and Emery
was in raised voice.  Moen offered to resign as steward.  Moen
objected to the meeting saying that offers were going to be put
on the table, that that was wrong and told Emery "[y]ou can't do
that."  Emery and Moen had their heated discussion in Moen's
office in the presence of unit members while the Town's
representatives remained in the FPD conference room.  The Town's
representatives knew that Moen objected to the meeting and that
he "didn't want it to go on."  Moen and Emery had been the best
of friends prior to the meeting.  Following that conversation,
Moen, McInnis and Farris left the building because they wanted no
part in the meeting.  Kempers and Emery remained and conferred
with the representatives of the Town.  Moen was otherwise
available to attend on the date of Emery's meeting with the Town;

     2The parties' collective bargaining agreement, in effect
during the period July 1, 1989 to June 30, 1992, and post
contract expiration due to the Board's status quo doctrine until
March 12, 1993, recognizes Teamsters Local Union No. 340,
affiliated with the International Brotherhood of Teamsters, as
the sole and exclusive representative of all employees in the
classifications of Sergeant, regular Patrolmen and Clerk-Matron-
Dispatcher of the Fairfield Police Department.


however, Moen did not stay to tape the meeting because he "wasn't
going to have any part of it.  And [because he believed] the
consequences of th[e] meeting would have led to nothing anyway." 
At the February 4th meeting, Moen called Emery a quitter. 
Council member Fortier, Town Manager McKenney and Pouliot
attended the meeting.  Only Kempers and Emery remained after Moen
and the other unit members walked out of the meeting.  The
February 4th meeting contained the only "blow-up" between Moen
and Emery.

     During the meeting with the Town's representatives, Emery
said he couldn't "understand why we, members, as police members,
are being asked to pay back six months of retroactive pay when
public works signed a contract three months into this and they
weren't made to pay anything."  Fortier's response was, "that's a
good argument."  Town representatives said, after some
discussion, "we can work something out."  Kempers felt at the
conclusion of the meeting that the unit "got headway in getting
the contract over with."  At the meeting, retroactive payment of
insurance and the number of days of first refusal of overtime
were the two issues discussed.  After the meeting called by
Emery, a split occurred in the unit which divided the previously
monolithic support for the Teamsters' position on health

     Kempers informed Moen the next day that the meeting had gone
forward in his absence.  Moen later discovered that a second
meeting had been called.  The second meeting was set by Emery for
3:30 p.m.  Moen's shift was to begin at 4:00 p.m.  Moen and Emery
spoke before the meeting.  Most of the unit members were in
attendance.  Emery attempted at this second meeting to justify
his previous action in calling the first meeting.  Moen had no
advance knowledge of the meeting and did not enter to attend it. 
Instead, he went to the Chief's office for his regular daily
briefing.  Kempers came into the Chief's office and invited Moen


to the meeting.

     Emery called the second meeting to relate to those not in
attendance at the first meeting that the Town had offered five
days of first refusal of overtime, and to tell them he'd brought
up the insurance retroactivity issue and that the Town had
thought he had a good argument.  At the second meeting the
participants voted to ask for another mediation session.  Moen
called Emery a quitter and predicted that his actions would get
him killed on the street someday.  Emery was hurt, cried and
later resigned as alternate steward.  On February 5 or 6, Town
Manager McKenney told politically active Fairfield citizen Gloria
Sturtevant over the phone that Gary Moen was "unstable" and that
"he's got to go."  Emery issued the following statement in a note
to all unit members on February 8, 1993:



     There was an immediacy about resolving the insurance issue
because there was concern that coverage would be terminated if
agreement on continued Northern New England Benefit Trust (NNEBT)
coverage was not reached.  During negotiations, the Chief and
bargaining unit members had health insurance coverage under the 
NNEBT.  If the NNEBT plan had been dropped, Pouliot would have
had the opportunity to join the Maine Municipal Association's
insurance plan.  Unit members received a letter from NNEBT which
indicated that insurance would cease February 1, 1993.  Canelli
assured unit members on several occasions that they were not
going to lose their health insurance.  Canelli never told unit
members that there was a thirteen-week grace period respecting
their health insurance.  Canelli told Emery during one of the


sessions that the NNEBT letter respecting cancellation of
insurance "was a tactic and that it shouldn't have been sent when
it was sent."

     Due to the concern that NNEBT might stop coverage before the
contract was finalized, the unit decided to elect payroll
deductions to "cover the entire cost of the increase . . . during
the remainder of negotiations."  Unit members assured Emery, who
could not afford to pick up this cost, that they would cover his
insurance until the matter was settled.  When Moen and other
members went to the town hall to have payroll deductions
initiated for premium payments to NNEBT, Town Manager Peter
McKenney said that the Town Council had expressly decided that
they would not allow payroll deductions.

     Whitney told Frazee in early 1993 that Moen was taping the
Chief.  Whitney's revelation was triggered by phone calls to the
Sentinel newspaper and to the Town Manager by friends of Moen who
had questioned her qualifications and who had asked why an Animal
Control Officer was investigating sexual assaults.  Frazee told
Pouliot at 9:00 a.m. on Wednesday, February 10, 1993, that Moen
had been taping him for quite some time.  Frazee said people had
made "statements to him or he had overheard conversations and
that he [, Pouliot,] should know."  Pouliot did not know of
Moen's taping before February 10 of 1993.  Whitney told the
Chief, after being called into the Chief's office, that Moen and
she both had taped him.  Pouliot called individual officers into
his office and asked them if they were aware of any taping of the
Chief or of other people without knowledge or permission.  Each
officer was admonished not to discuss their interviews with
Pouliot with anyone else until the investigation was concluded.

     Section B(10) of the January 1, 1991, FPD Sergeant's job
description states that a Sergeant "is to ensure that
communications between himself and the Chief of Police be kept
confidential when others do not have a need to know."  There is


no indication whether the patrol officer job description contains
a similar requirement.  Pouliot, on unspecified dates, has
"called to everyone's attention the importance of keeping
departmental investigations confidential" and has "instruct[ed]
the officers about keeping personnel matter investigations
confidential."  Pouliot felt Moen's taping violated accepted
police behavior, his job description and the trust between them
as Chief and second-in-command of patrol.  Prior to the
investigation of the tapings by Moen and others, there had been
no written or spoken guidance respecting taping of departmental
personnel.3  Neither the Police Department canon of ethics4 nor
the FPD Standard Operating Procedures (SOP) contain any taping
policy.  There is no departmental SOP respecting taping.5  Moen

     3Article 14 of the parties' collective bargaining agreement
empowers the Town to promulgate necessary rules and regulations,
requires that they be posted prominently and that employees be
provided with a copy.  Employees are required to comply with
existing reasonable rules that are not in conflict with the terms
of the agreement, provided they are uniformly applied and

     4The existence of an FPD canon of ethics was not

     5Fairfield Police Department Rules and Regulations Number
1-10, entitled Complaints Against Police Personnel, provides
procedures for making, investigating and disposing of complaints
against department personnel.  The procedure is aimed at
upholding the public image of the department through responsive-
ness to allegations of employee misconduct including misfeasance,
malfeasance and nonfeasance.

     Rule 1-10 predominantly provides for resolution of
complaints by citizens, prisoners or arrestees, although Section
III.E.8., provides that the procedure outlined "may also be used
when departmental employees desire to enter a complaint against
any other employee governed by this order."  Rule 1-10 provides
for two types of investigation, administrative and criminal, with
different rules for each.  The adjudication procedures provide
for varying terms of preservation of disciplinary records in
personnel files corresponding to categories of offenses outlined
in Rule 1-11 (Employee Discipline).  The Due Process section of
Rule 1-10 provides that in view of any liberty interest to enjoy



future employment elsewhere "the department affords an employee a
hearing in accordance with the provisions of Rules and
Regulations Number 1-11 (Employee Discipline)."  Rule 1-11,
however, provides no hearing.

     Fairfield Police Department Rules and Regulations Number
1-11, effective January 1, 1991, and entitled Employee
Discipline, states, in pertinent part, in Section IV.B., that:

     Rules and Regulations [Number 1-10]: Subject Complaints Against
     Police describes complaint procedures against department
     employees, whereas this order provides discussion of employee
     recognition and penalties for various infractions.

     1.    The department does not purport to provide employees with an
           all inclusive list of specifically prohibited behavior.  One
           list of examples of such behavior appears in Rules and
           Regulations Subject; Prohibited Conduct, but no list can be
           all-inclusive.  Employees are expected to have a reasonable
           perception of what constitutes proper behavior, based on
           academy training and the observance of the behavior of
           officers generally.

     Rule 1-11 provides in its list of permitted discipline that
demotion and suspension without pay are "measures normally
considered co-equal," and states, inter alia:

     6.    Demotion shall be to the next lowest rank.  Demotion shall
           only apply to the Sergeant or senior police officer. 

     7.    An employee may protest a suspension within five days of
           notice of suspension.  An employee may appeal a suspension
           through the Chief of Police to the union.  [sic]

     H.  Dismissal

     Dismissals are made in case of extreme misfeasance, malfeasance,
     or nonfeasance of duty.  A complete record of the circumstances of
     the misbehavior shall be made by all persons having knowledge of
     the misbehavior.

     1. Employees may protest or appeal a dismissal within fifteen days
        of receipt of notice, and may appeal in accordance with the
        procedure outlined under paragraph G. 7 above.

     2. Whenever dismissal or suspension is contemplated, the
        department shall provide notice to the employee.

     Rule 1-11 enumerates and categorizes examples of misconduct.
Category III offenses are stated to, "include acts of such
severity as to merit suspension or dismissal at a single
occurrence.  Category III offenses may be punished by suspension
for 15 days (or longer, with approval of the Town Manager) or
dismissal."  Included among the examples of Category III

never asked if he could tape the Chief's conversations with him. 
There has been no "no-taping" rule established since Moen's

     Moen first learned of the investigation on February 10,
1993, when, after coming into his office for his regular tour of
duty, he discovered his name was absent from the list of new
assignments.  Moen went to Pouliot's office for his daily
briefing.  Frazee and King were there.  Pouliot informed Moen
that he had "launched an investigation . . . for secretly taping
conversations without his knowledge or permission, and . . .
[told Moen that he] was going to be on paid administrative leave
until the end of his investigation."

     When Pouliot first asked Moen for the tapes, Moen responded,
"Who says there are any tapes?"  At a later meeting, on March 1,
1993, Moen told Pouliot, when asked for the tapes, that he had
given them to Canelli.  The Town didn't possess any of the tapes
until August of 1993.  Moen last gave Canelli a tape on

misconduct, are:

     s. Engaging in dishonest or immoral conduct that undermines the
        effectiveness of the agency's activities or employee
        performance, whether on or off the job.

     t. Willful disobedience of a lawful command of a supervisor.

     u. Disclosure of confidential information to any person except
        those who may be entitled to such information.

     v. Taking any action which will impair the efficiency or
        reputation of the department, its members, or employees.

     . . . .

     z. Failure to answer questions specifically directed and related
        to official duties or job fitness.  (Unless criminal
        prosecution is contemplated.)

Rule 1-11 provides no hearing procedure.


February 2, 1993.[fn]6 

     Pouliot asked Frazee if he had any further comments.  Frazee
told Moen that "they had contacted the District Attorney's office
and were deciding whether or not criminal prosecution for
violation of privacy would ensue."  Moen was asked if he had any
further questions.  Moen inquired whether Pouliot wanted his
badge or uniforms to which Pouliot responded, "[N]o . . . [a]ll I
want you to do is to go home and think about it."  Moen taped
this meeting as well.  Pouliot told Moen that he was very
disappointed in him and that he felt his privacy had been
violated.  Moen was placed on paid administrative leave.

     Pouliot told McKenney about the matter that afternoon via
memo.7  Pouliot kept McKenney abreast of the investigation but

     6Pouliot has never heard the tapes.  The only portions of
transcriptions of the tapes which Pouliot contends to be
injurious either to himself or to the department are "several
. . . taped conversations between [him]self and Gary Moen and
other members of the department discussing budgetary matters." 
Other than the Emery-Moen-Pouliot discussion respecting the
overtime mixup played at the fire barn, there is no evidence that
Pouliot knew of the actual contents of any of the tapes prior to
Moen's termination.

     7Pouliot's memo to McKenney states, in pertinent part:

           I want to advise you that I placed Sergeant Gary Moen of the
     Fairfield Police Department on paid administrative leave as of
     1530 hrs on Wednesday, February 10, 1993 until the results of an
     internal investigation is completed.

           It was brought to my attention this morning that Sergeant 
     Moen had tape recorded conversations between he and I on many 
     occasions over the past several months without my permission or 
     knowledge.  It is also alleged that he had tape recorded 
     conversations with you without your permission.  It is also 
     alleged that he has taped conversations with other members of the 
     Fairfield Police Department without their permission.  Captain 
     Frazee and I have interviewed nine member of the Police Department 
     on this date and anticipate interviewing several others in the 
     next two days when they are available.  These members were advised 
     of the internal investigation and that under our Rules and 
     Regulations they are obligated to cooperate.  They were advised 
     that their verbal statements were part of the record and requested 
     they forward to me or Captain Frazee a written statement of the 
     facts that they are personally aware of on this matter.  I advised 

McKenney did not participate in the disciplinary decision making. 
Pouliot was told by nine employees the first day and a total of
sixteen eventually, that taping was occurring.  After
interviewing Moen, Pouliot re-interviewed some members of the
department to re-evaluate their and Moen's previous statements. 
LaVerdiere, Whitney and Frazee came forward of their own volition
and did not receive letters warning that their failure to
cooperate in the investigation would result in disciplinary
action.  McInnis, Moen and Jordan received warning letters.   
Frazee conducted a solo follow-up interview with Animal Control
Officer Tucker after the interview conducted by Pouliot and
Frazee together.  Pouliot issued to each individual and posted on
the official bulletin board for four days, a note requiring all
FPD personnel to submit a written statement for use in the Moen
investigation.  Pouliot instructed employees participating in the
interviews that they had to cooperate and that they had to answer
his questions.  Pouliot asked every officer that he interviewed
"if there was anything else they wanted to divulge, as far as
taping or any other misconduct," while they were there.  Pouliot
admonished everyone who was interviewed against discussing
conversations in his office dealing with the investigation.  Such
admonitions are standard practice and are made both to prevent
game-planning of testimony and to protect the reputation of the
accused.  Pouliot told everyone questioned that they had a duty
to cooperate with the investigation.  Pouliot developed a
standard set of questions to use in employee interviews during

     and cautioned the members that had been aware of the taping of my 
     conversations by Sergeant Moen and had not made me aware of it 
     might also be subjected to disciplinary action.

           With this preliminary information at hand I felt that I had 
     no other choice but to place Sergeant Moen on paid leave until the
     completion of the internal investigation.  I feel that several
     members under Sergeant Moen's supervision may be intimidated by
     the fact that he is their immediate supervisor and having him
     remain on active duty would hinder the investigation and cause an
     even more hostile working environment for the remaining members. 
     I will keep you informed on a daily basis of the progress of the


the investigation, on the evening of February 10th.  Frazee
assisted Pouliot in the investigation by taking notes, by
assuring that the same questions were asked of all employees and
by recording their answers.  Frazee submitted minutes to the
Chief, of the proceedings with respect to each officer.

     At the February 10, 1993, interview, McInnis elected to go
on with the interview after the Chief said that he didn't need
union representation when being interviewed with regard to the
possible wrongdoing of other FPD members.  Pouliot told McInnis
that during the internal investigation he was not to discuss what
he had told the Chief with anyone else.

     One tape of the departmental message traffic respecting a
high speed chase which eventually resulted in a fatal shooting,
in which Pouliot was involved as a line officer of the FPD, was
played repeatedly by departmental personnel including Moen and
Emery.  The high speed chase tape was made by the Waterville
Communications dispatch service in the course of routine
business.  Pouliot obtained the high speed chase tape initially
and has played it to members of the department.  There is no
reasonable expectation of privacy with respect to the high speed
chase tape.

     On February 10, 1993, after McInnis was interviewed
respecting his knowledge of Moen's taping, Moen asked him to pick
up a policy and procedure manual, Title 17-A of the Maine Revised
Statutes and some grievance forms.8  McInnis did so and delivered
them to Moen's home.9  Moen indicated he would file a grievance

     8The parties' contract provides, in a Letter of Practices 
Appendix, that "the Town will make available for each Officer a 
photocopy or extract of Title 17A and 2a."

     9The parties' agreement provides, in Article 10-Access to 
Premises, that "[a]uthorized agents of the Union shall have 
access to the Town's establishment during work hours for the 
purpose of adjusting disputes, investigating working conditions, 


and asked McInnis questions relating to that grievance.  Present
at the station when McInnis picked up Moen's requested material
were officers Ireland, LaVerdiere, Bard, Robideau, Tucker and
McKenney.  McKenney and Tucker are on-call animal control
officers (ACOs).  The other officers are non-unit reserves.  When
McInnis saw LaVerdiere at the Police Department when he came in
for the items, he said to LaVerdiere, "I'm not here."  McInnis
retrieved a number of items for Moen, including Moen's copy of
Title 17-A.  

     LaVerdiere told Emery that he had seen McInnis come into the
station twice while off-duty and that he had photocopied
materials from the "union drawer" where all the grievances,
contracts, and union forms are kept.  Pouliot obtained a verbal,
then written, statement from LaVerdiere, the officer on duty that
night, after overhearing talk about McInnis having been at the
station twice on the evening of February 10.  Bryant LaVerdiere's
statement, made on February 11, 1993, states:

     On 2/10/93 at approx: 19:00 hours I was working at the Fairfield
     Police Department when Officer Dana Mcinnis came into the police
     department.  While in the police department Dana McInnis was
     taking paperwork out of the bottom draw of the filing cabnet
     directly behind the computer in the work area.  He also was photo
     copying some of the paper work in the dispatch room (the same
     paperwork that was taken from the draw).  Also on 2/10/93 at
     approx: 21:00 hours I again was at the police department when
     Office McInnis returned to the police department and did the same
     that described before.

Pouliot called McInnis at home to question him.  Pouliot asked
McInnis if he had discussed the case with anyone and if he had

collection of dues, and ascertaining that the Agreement is being 
adhered to, provided, however, that there is no interruption of 
the Town's working schedule."  Article 13-Grievance Procedure of 
the parties' agreement establishes a grievance procedure for use 
in resolution of issues of application or interpretation of the 
agreement, which ends in final and binding arbitration.  The 
grievance article provides that the local Union or its 
representatives "shall have the right to examine . . . records 
pertaining to a specific grievance."


used the photocopier the previous evening.  McInnis admitted
having spoken with Moen but denied making photocopies.  McInnis
was aware that Moen had told Pouliot that no union material would
be photocopied on the FPD copier.  McInnis had received no
previous discipline.  Three officers told Pouliot that McInnis
had photocopied.  Tucker told Frazee that McInnis had not made
photocopies and Frazee responded that "two other officers
wouldn't lie about something like that." 

     On the 11th, McInnis was interviewed again, he asked for
representation during the interview and left when it was denied. 
Pouliot did not question McInnis further to determine exactly
what he had discussed about the investigation with Moen.  A
letter of suspension and of reprimand issued later that same day. 
McInnis was represented by Canelli at the third interview where
the matter of McInnis' taping of the Chief during a performance
evaluation was discussed.  McInnis' Weingarten rights were not
denied.  McInnis did not initially recollect having previously
secretly recorded the Chief.  McInnis later recalled recording
the Chief and admitted having recorded him.  McInnis taped
Pouliot, mid-year 1991, during an evaluation interview so as to
be assured that everything said was placed on a form.  McInnis
had union representation at that meeting.  McInnis fears that he
will be terminated for having supported Moen, in part, due to
hearing from other departmental employees that "a couple of Danas
. . . were close to being terminated" or "were short-timers." 

     On February 12, 1993, Pouliot gave McInnis two pre-prepared
letter notices of discipline.10  McInnis was suspended for four

     10Pouliot gave McInnis two memos on February 11, 1993.  The
first, which imposed a four-day suspension, states:

     TO:    Officer Dana McInnis

     FROM: Chief John F. Pouliot
     REF:  Disobedience of a direct order - Suspension without pay for



           a period of four (4) work days commencing on February 12 and
           ending February 15, 1993.

  Officer McInnis:

           On February 10, 1993 you were interviewed in regards to your
     knowledge of possible violations of the Rules and Regulations by
     another Fairfield Police Officer. You were in the presence of
     Captain Richard Frazee and myself.  On at least two occasions
     during that interview I cautioned and told you not to discuss this
     on-going internal investigation with anyone outside of my office. 
     Captain Frazee and I both remarked afterwards that there was no
     misunderstanding on your part as to what I meant.

           On February 11, 1993 at about 3:00 PM it came to my 
     attention that you had been observed in the Police Station making
     photocopies.  Finding this odd as this was one of your days off I
     called you.  I asked you if you had discussed the internal
     investigation with anyone outside my office.  After several
     seconds of no response I had to prod you by stating that this was
     not a hard question to answer.  You answered " yes I did ".  I
     then asked you what you were doing at the Station  making
     photocopies.  You stated you had " not made any photocopies".  I
     then asked what you had been doing and you answered that " I was
     getting rules and regulations and Title 17A"  I then asked you who
     you had discussed the internal investigation with and you stated 
     "Sergeant Moen"  I then requested your presence in my office at
     8:30 am tomorrow morning.

           Therefore for disobeying a direct order from the Chief of 
     Police and possibly compromising an internal investigation I am
     placing you on four (4) days of unpaid suspension commencing
     Friday, February 12, 1993 and ending on February 15, 1993. 
     Disobedience of a direct order from a superior officer is a
     Category III violation of the Fairfield Police Department Rules
     and Regulations and indicates a possible punishment of fifteen
     (15) days of unpaid suspension or dismissal.

           I am advising you that any further Category III violation on
     your part will result in your dismissal from the Fairfield Police

     John F. Pouliot
     Chief of Police

The second memo which McInnis received is a written reprimand
which states:

     Officer McInnis:

           On February 10, 1993 you were interviewed in regards to your
     knowledge of possible violations of the Rules and Regulations by
     another Fairfield Police Officer.  You were in the presence of
     Captain Richard Frazee and myself.  On at least two occasions
     during that interview I cautioned and told you not to discuss this
     on-going internal investigation with anyone outside of my office. 
     Captain Frazee and I both remarked afterwards that there was no
     misunderstanding on your part as to what I meant.


days for allegedly disobeying a direct order not to discuss his
interview, by talking to Moen, and was given a written reprimand
for allegedly lying about photocopying.

     Bruce Tucker, an FPD animal control officer, heard both
Emery and Pouliot say that the two Dana's were short-timers and
didn't even know it.  Pouliot states that his comment about the
two Dana's was based on the shortcoming in veracity of one
employee, the courtesy and job performance of the other, and was
made after the disciplining of McInnis.  Within a day or two
after Moen's suspension, Captain Frazee stated to a prior
Fairfield Town Council chair that heads were going to roll down
at the police station.

     LaVerdiere overheard Moen call Pouliot derogatory names and
accuse Pouliot of misappropriating funds.  LaVerdiere also heard
Moen making fun of the Chief's memos and excusing compliance with

           On February 11, 1993 at about 3:00 PM it came to my 
     attention that you had been observed in the Police Station making
     photocopies.  Finding this odd as this was one of your days off I
     alled you.  I asked you if you had discussed the internal
     investigation with anyone outside my office.  After several
     seconds of no response I had to prod you by stating that this was
     not a hard question to answer.  You answered " yes I did ".  I
     then asked you what you were doing at the Station making
     photocopies.  You stated you had " not made any photocopies".  I
     then asked what you had been doing and you answered that " I was
     getting rules and regulations and Title 17A"  I then asked you who
     you had discussed the internal investigation with and you stated 
     "Sergeant Moen"  I then requested your presence in my office at
     8:30 am tomorrow morning.

           Later that evening I recieved a phone call from Captain 
     Frazee who indicated he had witnesses to you making photocopies at 
     the Police Station last night.  In fact you had been at the 
     Station twice last night and made several photocopies.

           Therfore for lying to me after my asking you a direct 
     question I am placing a Written Reprimand in your Personnel folder 
     for a period of six (6) months from this date.  This Reprimand 
     will be removed from your Personnel Folder if no similar 
     violations occurs.  I am advising you that if any further 
     violations of this nature is committed by you a more severe action 
     will be taken.

     John F. Pouliot
     Chief of Police


them, but there is no indication that the Chief knew this.  Moen
frequently criticized the Chief's memos.  Moen called the Chief
names and accused him of being "paid-off" by a resident of the
town.  Pouliot's investigation revealed that Moen had at times
called him a "fucking asshole," an "embezzler," a "big dummy," an
"incompetent" and that Moen had said "listen to that idiot" in
front of subordinates, statements which Pouliot perceived to have
the effect of eroding Pouliot's authority.  Pouliot believed
Moen's actions subjected him to ridicule.  Pouliot's investiga-
tion also revealed that McInnis, Jordan and Frazee had called him
names.  Frazee was disciplined on a previous unspecified occasion
for calling Pouliot names when failing to get an assignment he

     During the Moen taping investigation, LaVerdiere accused
Moen of not answering a Pung Hill Road "shots-fired" radio call,
in a timely manner.  LaVerdiere supplied Pouliot with information
respecting the incident in response to Pouliot's question, during
the investigation, whether "there was anything else [he] should
be made aware of."  Pouliot questioned LaVerdiere about the
circumstances surrounding the incident.  LaVerdiere estimates
that it took Moen 20 minutes to respond to the Somerset County
Sheriff's Department Dispatch Center call during the November
1992 Pung Hill incident.  Pouliot concluded that it took Moen 12
to 15 minutes to respond to the gun call and that it took
LaVerdiere 2 or 3 minutes to respond.

     LaVerdiere never previously filed a complaint over the
incident.  LaVerdiere did not report the "shots-fired" incident
because he was new, Moen was his supervisor and he didn't want to
cause trouble for himself.  Although Pouliot testified that
LaVerdiere had told him the Pung Hill incident was one of a
number of such incidents, LaVerdiere's testimony is that he did
not tell the Chief that there were other such incidents. 
Department policy is that when two people are available, two


people respond to a shots fired call.  Neither Steven Dawe, who
called the FPD to report the shots fired on Pung Hill Road, nor
his companion during the incident, Andrea Thomas, were questioned
by the Chief or any member of the FPD regarding the incident. 
Both testified that Moen arrived three minutes after LaVerdiere. 
Prior to receiving the termination letter, Moen was never aware
of any complaint against him regarding the "shots-fired" call
with Officer LaVerdiere.  

     On January 23, 1993, LaVerdiere overheard Moen, who is a
reserve EMT at the Fairfield Fire Department (FFD), discussing
confidential client-related medical information with FFD EMT Jim
Lane.  LaVerdiere reported this incident to Pouliot during the
February 10, 1993, investigation.  

     Pouliot never raised the "shots-fired" call incident or the
disclosure of confidential information incident with Moen prior
to his termination.  Pouliot's conclusions respecting the "shots-
fired" call were that Moen took an inordinate amount of time to
respond and that Moen's question of LaVerdiere, whether
LaVerdiere really needed him to respond, violated general law
enforcement policy that "everybody responds to a gun call." 
Pouliot does not consider either a first time failure to back up
a fellow officer, or a first improper discussion of a person's
medical problems outside the department to constitute offenses
which warrant termination.  Prior to the Moen arbitration,
LaVerdiere attempted to review the statements in the file
respecting the Pung Hill Road incident and it was missing.

     On Memorial Day of 1993, LaVerdiere and Farris both
responded to a call concerning the discharge of a muzzle-loaded
rifle.  LaVerdiere detoured en route to apprehend a driver
apparently operating under the influence.  Moen called Farris
about the matter and Farris asked LaVerdiere if he'd informed the
Chief about the impression the "scanner world" might draw of his
not backing-up Farris on a "shots-fired" call.  Farris discussed


the gun call/OUI incident with the Chief.  Farris did not order
LaVerdiere to divert and respond to the OUI; however, he did
acquiesce, in LaVerdiere's pursuit of the OUI suspect.

     We do not make findings of fact with respect to the factual
circumstances of the Pung Hill "shots-fired" call due to the
widely conflicting testimony regarding the events, the times of
their occurrence, and the lack of persuasive indicia that any of
the testimony is more credible than the rest.

     Pouliot questioned Moen on March 1, 1993, about the history,
nature and extent of his taping, in the presence of Canelli and
Frazee.  Moen told Pouliot that he had taped only union business
and that he had done so at Canelli's request.  Moen told Pouliot
that he had two or three tapes, that he had last taped on
February 2, 1993, that he had been taping for two or three months
prior to February 10, 1993, and only when Canelli couldn't be
present.  During this interview, Pouliot asked the questions,
Moen answered them and Frazee took notes.  There is no indication
that Moen was refused the opportunity to rebut charges respecting
his taping, playing of tapes or urging subordinates to tape. 
There is no evidence that Moen was refused the opportunity to
submit additional oral or written rebuttal.11

     Statements Pouliot received from other officers were at
variance with Moen's respecting the nature and extent of Moen's
taping.  Pouliot concluded from these statements that Moen had
dozens of tapes, had been taping since 1991, and that nearly all
of their conversations had been taped.  Other officers indicated

     11Inasmuch as Moen admitted the tapings, the playing of the
tapes and urging subordinates to tape, and in the absence of any
suggestion that these admissions were not voluntary, the issue of
any engrafted "right to confront accusers" appears immaterial. 
Additionally, there is no evidence that Moen requested to
confront his accusers or that he was denied knowledge of any
information upon which charges related to the tapings were based.


that Moen had made such statements to them and that Moen was
collecting information for a possible suit against the Chief. 
Pouliot's investigation revealed that Moen used a microcassette
tape player placed in his pocket.  The Chief subsequently
discovered that Moen had taped the February 10th session, during
which he was placed on administrative leave.

     With the exception of asking the District Attorney for an
interpretation of a statute, Pouliot contacted no other outside
agency during his investigation.  The District Attorney told him
that the Moen matter was not a criminal one.  Moen was the focus
of Pouliot's questioning during the investigation, although other
individuals shared the focus once they admitted having taped the
Chief without his permission.  A newspaper reporter called
Pouliot and was told by Pouliot, "this is an internal
investigation and I have nothing to discuss at this time." 
Pouliot believes recordings such as those made by Moen, like
sleeping on the job, are so obviously contrary to unwritten code,
policy and ethics that they needn't be written to be enforceable
as violations of industry standards for law enforcement.12

     During Pouliot's investigation of the taping, King was
interviewed once.  King had no knowledge of anyone taping the
Chief at that time.  Emery told Pouliot that he, himself, had
never secretly taped, admitted knowledge of the taping by others

     12Sleeping on the job is specifically mentioned in the FPD
Rules and Procedures, however, Rules and Regulations Number 1-11
provides, in IV.B.1., that:

     The department does not purport to provide employees
     with an all inclusive list of specifically prohibited
     behavior.  One list of examples of such behavior
     appears in Rules and Regulations Subject:  Prohibited
     Conduct, but no list can be all-inclusive.  Employees
     are expected to have a reasonable perception of what
     constitutes proper behavior, based on academy training
     and the observance of the behavior of officers


and had no answer respecting why he hadn't told the Chief about
Moen's taping earlier.  Farris assumed from his "impressions
during th[e] interview" that the Chief had just learned that
Mr. Moen had been taping his conversations."

     Jordan was interviewed on February 10, 1993, during the
Chief's Moen investigation.  Jordan did not ask for union
representation.  Around February 17, 1993, in response to the
Chief's request that he make a statement about recording at the
FPD, Jordan confirmed to the Chief that he had secretly recorded
him on one occasion regarding a citizen's complaint against
Jordan.13  Jordan played the tape for no one else and erased it

     13The statement made by Officer Jordan on February 17, 1993,








almost immediately.  Jordan was suspended for four days by a
prepared notice of suspension on March 12, 1993.[fn]14  Jordan filed a
grievance over his four-day suspension which was eventually
withdrawn from arbitration.  Jordan told Pouliot that he knew
that Moen had been taping "unspecified" conversations since at
least 1991.  Jordan was not read Miranda or Garrity rights during
the investigation.  Jordan was not offered a hearing.  Jordan
felt that he was disciplined for union affiliation and having
opposed acceptance of the contract.

     Whitney, Wrigley, Jordan and McInnis secretly taped
conversations with the Chief.  Pouliot gave all of these officers
four-day suspensions because they had taped on only one occasion,
hadn't played their tapes for anyone else and because they had
cooperated in the investigation.  Reserves were suspended by
striking out their names when those names came up on the call-in


     14On March 12, 1993, at a meeting which Pouliot requested for purposes of
disciplinary action, Pouliot gave Jordan a memo which states, as follows:

           As you know on February 10, 1993 I became aware that
     conversations between myself and other employees of the department
     had been tape recorded without my consent or knowledge, for some
     period of time.  I began an investigation on the matter.

           I have now concluded my investigation.  Based on the results
     and findings I have made a decision to suspend you without pay for
     four (4) work days starting on March 14, 1993 and ending on March
     17, 1993.  The reason for my decision is as follows: 

     1.    You have tape recorded my conversation with you during an
           interview on a complaint from a citizen.

           This type of action shows extremely poor judgement on your
     part, disloyalty to the Chief of Police, and fosters mistrust in

           In light of the type of violation of basic law enforcement
     procedures and the obvious disrespect for the Chief of Police I
     have no choice but to suspend you for the four (4) work days.

           I must advise you that any further violations will result in
     more severe disciplinary action.


list four times, effectively denying them four paid shifts.  
Pouliot held Moen to a higher standard because of his supervisory
position.  Pouliot concluded that Moen's past taping and tape
playing indicated Moen's distrust of him, eroded the Chief's
ability to manage the department by destroying his trust in Moen,
and engendered "mistrust amongst members of the department." 
Pouliot felt he would never again be able to trust Moen and that
he could no longer discuss confidential personnel matters or
criminal investigation matters with him.  Although it is not
normal for Pouliot to base a disciplinary decision on the word of
one person, Pouliot concluded, based on LaVerdiere's accusations
alone, that Moen had discussed a citizen's medical problems in
casual conversation at the FPD with a member of the Fire
Department who had no "right-to-know."  Pouliot regarded the
"shots-fired" and confidentiality issues to show a general
tendency to disregard basic police policies.15

     Pouliot gave Moen full notice of the nature of the
investigation on the day he was suspended and conducted a

     15Kempers perceived that there was a split in the unit
resulting in a Moen camp and an Emery camp.  LaVerdiere, although
not a member of the unit, was in the Emery camp.  Jordan and
McInnis were part of the group of FPD employees who strongly
supported Moen.  LaVerdiere often expressed a desire for full-
time work within the FPD to Jordan.  At the time of his rendition
of a signed statement during the Moen investigation, LaVerdiere
was next on the full-time patrol hiring list and was aware of
that fact.  LaVerdiere is now a full-time unit employee as a
result of the termination of Sergeant Moen.  Pouliot did not
consider these facts to create an inference of motive affecting
LaVerdiere's credibility.

     LaVerdiere has been told that whether his temporary job will
become a permanent one depends upon the outcome of this case.  In
January of 1994, LaVerdiere, who was not at that time a unit
member, was concerned with and involved in questions concerning
prospective health benefits issues which are anticipated to
arise, with respect to unit-member full-time officers, upon
contract expiration in June of 1994.


subsequent interview with him at which Canelli was present.16  The
parties' collective bargaining agreement provides for a "hearing"
on request.17  There is no evidence that a hearing was ever
requested or refused.  During the Shaw matter in 1992, the Town
Council determined, without explanation, that a hearing was
required at the time of dismissal.  Although Article 33 of the
contract addresses complaints against police officers, we find
that Article 33 and Rule Number 1-11 apply to circumstances not
involved in this case.  Article 33 and Rule 1-11[fn]18, concern
complaints which pertain to conduct impacting the accomplishment
and public perception of the accomplishment of the department's
law enforcement mission, and not matters of employee discipline
common to most employment relationships.

     On February 11, 1993, the mediator sent the parties a notice
of mediation which states:

           Confirming my telephone conversations with you yesterday, I
     have scheduled a mediation session for the purpose of seeking a
     settlement of the labor dispute involving the police unit
     employees of the Town of Fairfield.  The mediation session will be
     held on Friday, February 19, 1993 commencing at 10:00 a.m. at the
     offices of the Maine Labor Relations Board, State Office Building
     Room 710, Augusta, Maine.

           Please inform the members of your party's police unit
     negotiating team of the scheduling of this session and their

     16The Discharge or Suspension Article of the parties'
agreement provides that "the Town shall not discharge or suspend
any regular employee without just cause."  This article
procedurally requires only notice in writing of both the
discharge and the reason therefor.  This article also provides
that disciplinary action or measures shall include Oral
Reprimand, Written Reprimand, Disciplinary Probation, Suspension
and Discharge.  No mention is made of demotion.

     17Article 32 of the parties' agreement, entitled Employee
Rights, provides that, in internal investigations respecting unit
employees, "[a]n employee shall have the right to a private or
public hearing, if he/she so desires."  There is no evidence of
the nature of the hearing which this provision insures other than
that it may be public or private at the employee's option.

     18See footnote 5 for the pertinent provisions of Rule 1-11.


     continuing obligation to participate in good faith in required
     mediation procedures.

     The parties met again on February 19.  Pouliot unsolicitedly
announced that if anyone wanted to attend from the unit, he would
cover their shift and made a special effort to do so.  Pouliot
was not a usual participant in negotiations; however, he attended
portions of the January 29 session as a resource person
respecting overtime and he also attended a portion of the
February 19 session.  The Town's proposals submitted at the
beginning of the day's negotiations on February 19th, contained a
number of items which did not find their way into the parties'
agreement.  During the parties' February 19, 1993, session, the
Town "backed-off" its proposed language respecting a number of
contract issues.  During discussion of the issue of retroactive
insurance payments at the February 19 meeting, the Town Manager
referred to an "insurance deal that John Emery had worked out." 
The Teamsters' position on the 19th was for 100 percent
retroactivity.  The Town's position coming in on the 19th of
February was that the parties split retroactivity.  The proposal
made by Emery on the 19th was that "we would split and that they
would cover the first three months."  During the course of that
meeting, NNEBT was called and indicated no receipt of payment
although the Town Manager stated that a check had been sent two
weeks prior.

     On February 19 the Town went through its written proposal. 
The Teamsters counter-proposed changes in funeral leave language
and a change in the amount of retroactive payment of insurance
premiums.  The Town caucused and agreed to the proposals and the
Teamsters said "the agreement would be settled if in fact the
Town would drop any charges against Officer Moen and some of his
other officers who had been disciplined."  The Town refused. 
Thereafter there were only informal negotiations.  There is no
evidence that the Town asked or demanded the Teamsters withdraw
this request based on its permissive nature.  There is no


indication of either the time of day, or the actual length of
that day's negotiations, at adjournment of the February 19th
session.  Kempers perceived the only thing holding up the
contract at the end of the day February 19, 1993, to be the
dropping of the disciplinary proceedings against Moen.  When
Kempers said that contract issues and discipline issues were
separate in her mind, Moen accused her of selling him down the

     A policy statement memo was issued by Pouliot on February
10, 1993, which, among many other things, banned the posting of
union correspondence on the general bulletin board and limited
any such posting to the union board in the locker room.  The
general bulletin board is restricted to police business such as
memos from the Chief and is required to be read daily by FPD
members.  Negotiation dates, bid shifts and vacation requests
under the contract are permitted to be posted on the general
bulletin board.  

     Emery reviewed the contract after the February 19, 1993,
meeting to find out what was holding up the negotiations, found
no remaining issues and then began asking, "Why haven't we signed
a contract if there's [sic] no outstanding issues at this point?" 
Emery typed up his inquiry in this regard on the FPD word
processor and, after securing the Chief's permission, posted it
on the official or general FPD bulletin board, on February 22,
1993, along with a petition inviting unit members to sign-on in
support of instructing the Teamsters to sign a contract based on
the apparently-finalized negotiations.  Emery discussed the
petition with King before posting it.  King signed the petition,
as did Kempers.  Jordan asked Frazee why Emery's petition was
improperly posted.  Frazee did not know.  The next time he came
to work, Farris found a note from Emery which said if he had a
problem with the petition "complain to the Chief."  Jordan and
Emery spoke about Jordan's concern and Emery told Jordan the


Chief had authorized the posting of the petition.  Farris signed
the petition, then "whited-out" his signature.

     The posting was captioned with the 3/4 inch rhetorical
heading, "What Contract Issues Remain?"  The posted packet
contained a five-page listing of "PROPOSALS FOR SETTLEMENT OF
CONTRACT WHICH EXPIRED ON JUNE 30, 1992."  The packet contains a
memo, which states:









The petition appended to the posted notice states:


                      FAIRFIELD POLICE CONTRACT

     DATE POSTED:  02/22/93


     1.  /s/ John L. Emery  02/22/93           5.  __________________________

     2.  /s/ Jeanne C. Kempers 02/22/93        6.  __________________________

     3.  /s/ Thomas E. King  02/22/93          7.  __________________________

     4.  _____________________________         8.  __________________________

     During negotiations, a petition with 800 signatures was sent
to the Town in support of the negotiations positions of the FFD
and FPD.  A meeting attended by over 200 townspeople was
conducted by the Teamsters to inform the townspeople of the
Teamsters' negotiations goals.  The Teamsters met publicly with
the Town Council and the Manager to discuss "the issues that were
causing the contract not to be signed."  The Town presented its
side of the issues.  There was an attempt to get the Town to
amend its charter to provide Town payment of health insurance
premiums for unit members.

     Moen and Canelli attended a meeting with the Chief on
March 10, 1993, at which Moen was given a letter of termination. 
Moen was not offered and did not ask for an opportunity to rebut
any of the points in the letter at that meeting.  Moen was not
offered a formal evidentiary hearing or the opportunity to
confront his accusers.  The letter of termination states:

     To:   Sergeant Gary Moen                  March 10, 1993

     From: Chief John F. Pouliot

     Ref:  Termination of employment 

           As you know on February 10, 1993 I became aware that you had
     been tape recording my conversations with you, without my consent
     or knowledge, for some period of time.  I began an investigation


     process and placed you on leave with pay until my investigation
     was concluded. 

           I have now concluded my investigation.  Based on the results
     and findings, I have made a decision to terminate you from your
     position as a law enforcement officer with the Fairfield Police
     Department effective March 12, 1993.  The reasons for my decision

     1.    You have tape recorded my conversations on numerous
           occasions for approximately two years without my knowledge
           or permission.

     2.    You have made dishonest statements about the extent and
           nature of the taped conversations during the course of my

     3.    You have played our taped conversations to other officers.

     4.    You have played our taped conversations to people outside
           the police department.

     5.    You have encouraged other department employees to tape me
           (and others), again without my knowledge or permission (or
           the knowledge and permission of the others who were taped).

     6.    You have made numerous derogatory comments to officers under
           your supervision about my character, honesty, and
           performance as a Chief of Police and as a law enforcement
           officer.  You have misstated my positions and motivations. 
           You have acted and spoken in ways that evidence your
           disrespect and disloyalty to me.  The effect of your actions
           and comments has been to undermine my authority, my
           relationship with other officers, and the ability of other
           officers to trust and respect the administration.

           In addition, during the course of the investigation I have
     also learned that on at least two occasions you have violated
     basic law enforcement procedures.  On November 7, 1992, you failed
     to back up Officer Laverdiere when he was dispatched to a gun call
     in which one party had been shot at by another person three times
     with a firearm.  At first Officer Laverdiere could not reach  you
     by radio.  Once contact was made you asked if it was necessary for
     you to respond and that you would if he thought you were needed. 
     Your failure to be in contact with Officer Laverdiere, and your
     reluctance to come to his aid in this critical situation violates
     the Fairfield Rules and Regulations and basic law enforcement
     policy.  The second incident involves your discussions with a
     person outside of the department details of a sensitive domestic
     complaint involving a citizen of the Town of Fairfield.  The party
     being informed had no part in, nor was he in any way involved in
     the investigation of this complaint.  This violates the Fairfield
     Police Department Rules and Regulations.

           Any one of these actions, and all of them taken together,
     shows extremely poor judgement; disloyalty; failure to appreciate
     the responsibilities of your supervisory position; lack of
     attention to law enforcement procedures and responsibilities; and
     a disregard for the well-being, efficiency and morale of the
     department.  Based on what I have concluded as a result of my
     investigation I believe that our ability to work together and my
     ability to rely on you and trust you as a member of this


     department, whether as a patrol or command officer, has been
     damaged beyond repair.

           I have considered other less extreme measures but have
     concluded that, in light of both individual incidents and the
     total picture of your conduct, I have no choice but to terminate

     /s/     John F. Pouliot                          
     John F. Pouliot
     Chief of Police

     cc:  Town Manager

     Pouliot kept the door open during the delivery of the
termination letter.  LaVerdiere was sitting in the room outside
Pouliot's office.

     Pouliot was required to have and did obtain the approval of
the Town Manager in Moen's termination.  The Town charter states
as follows regarding termination authority:


     Department Heads with the advice and consent of the Town Manager
     and Town Council, shall have the authority to hire personnel
     within their departments.  Department heads shall also have the
     authority, with the approval of the Town Manager, to suspend or
     discharge for just cause.  These department heads are:  the Police
     Chief, Public Works Superintendent, Fire Chief, and any other
     department head the Town Council may create.

Pouliot's decisions respecting the Moen discipline were his own
and he was not pressured or influenced by either the Town Council
or the Town Manager.  Moen grieved his termination, beginning at
the third, or Town Council, step.19

     Emery was promoted to Acting Corporal at some time after his

     19The parties' agreement contains a Non-Discrimination
Article which prohibits discrimination by the Town "against an
employee because of any employee's lawful activity and/or support
of the Union."

     Moen voluntarily abandoned the grievance/arbitration
procedure, after having had one day of arbitration, in order to
obtain review by the Board.  All other employees' grievances
arising out of the taping were abandoned as well.


interview with Pouliot.  He receives no addition pay in that
capacity.  Pouliot stated to Reverend Scott Demers and Robert
Runshe, who visited Pouliot to determine why Moen had been
terminated, that he was unable to share the information but that
it was due to the "tape recordings themselves."  The Chief made
reference to an SOP but when they asked to see the rules the
Chief said the SOPs were confidential to the department.  Pouliot
characterized Moen as a "Rambo type" and said things might have
turned out differently had Moen been more remorseful.  Shortly
after Moen's suspension, Emery was promoted to Corporal and
Whitney was regularly scheduled for 40 hours a week. 

     The Chief's recollection of the conversations which were
alleged to contain coercive admonitions of loyalty, differed from
that of Kempers, Tucker and Farris.  The Chief's recollection was
that he was endeavoring to obtain truthful testimony during the
investigation and was concerned about the work performance of his

     Wing prepared a written agreement20 and on March 12, prior to
a scheduled March 18th fact finding, Canelli agreed.  The
contract was signed March 18.  The parties' eventual contract
specifies that the Town pays the entire cost of insurance for the
first three months of the contract and that thereafter the Town's
share of the contribution shall be $364.14 per employee per

     20Wing wrote Canelli respecting the proposed agreement on
March 12, 1993, as follows:

           Please find enclosed the revised contract for the Fairfield
     Police Unit.  The revision incorporates the Town's offer to the
     unit made on February 19, 1993, and reviewed by you during our
     telephone conversation on March 12, 1993.  

           Please sign the enclosed contract and present it to the Town as
     soon as possible in order that we may cancel the pending fact-


     King does not believe he was coerced by the Town during the
course of negotiations.  King noticed no difference in unit
morale after Moen's termination.  King also did not notice a
change in the attitude of the bargaining unit toward the union as
a result of the discipline of McInnis, Jordan and Moen.  Kempers
unspecifiedly "felt" Moen was treated "a little unfairly" and
that there was a "conspiracy . . . to get rid of him."  Pouliot,
Frazee, Whitney, Emery and LaVerdiere had meetings on unspecified
occasions during which the Chief's door was closed.


     Upon consideration of the entire record in this matter we
find that Pouliot did not dismiss Moen either on the basis of
Moen's protected activity, or in furtherance of obtaining
accelerated contract closure on more favorable terms.  We find
that Pouliot dismissed Moen because he believed that Moen had
repeatedly, surreptitiously and improperly recorded their
official conversations, because he believed Moen had improperly
played portions of those tape recordings for others and because
he believed Moen had improperly and successfully urged a number
of his subordinates to engage in similar misconduct.  We find
that Pouliot considered these actions by Moen to constitute gross
personal insubordination and that Pouliot concluded that the same
actions engendered a virulent disloyalty among Moen's subordi-
nates.  Pouliot dismissed Moen because their mutual trust had
become impossible and because Pouliot believed Moen was unfit for
continued law enforcement work at the FPD.  We also find that the
four-day suspensions of unit members Jordan and McInnis were
based on the Chief's disapproval of their tape recording and not
upon any protected activity; and that McInnis was additionally
suspended and reprimanded for improper conduct during the Moen
investigation, unrelated to any protected activity.

     We do not find that the Teamsters insisted to the point of


unlawful refusal to bargain, upon Town agreement to its
permissively negotiable proposal that the Town abandon
disciplinary procedures which had been initiated against Moen and
other employees.  We do find that the Town unlawfully
circumvented the exclusive collective bargaining agent by
engaging in impermissible direct dealing when it facilitated
alternate shop steward Emery's errant convening of an ostensibly
"informational" or "clarification" meeting between rank and file
unit members and representatives of management, at which
participants engaged in the discussion of contract proposals. 
Beginning first with the Teamsters' allegation of discriminatory
conduct aimed at coercing employees in negotiations, we shall now
discuss these three areas and explain the rationale supporting
our findings in each.

Coercive and Discriminatory Disciplinary Procedures

     We do not exercise general appellate jurisdiction over the
personnel decisions of public sector entities, such as the FPD,
which otherwise fall within our remedial labor relations
jurisdiction.  We do, on the other hand, examine disciplinary
actions where, as here, the disciplinary procedures used are
alleged to be highly irregular and the disciplinary measures
imposed on union members and stewards are alleged to be so out of
proportion to the offense committed that they are alleged to give
rise to an inference that the punishments imposed are discrimina-
tory and aimed at obtaining closure of negotiations on terms more
favorable to the employer.

     The Teamsters' complaint does not specifically refer to
26 M.R.S.A.  964(1)(B) (1988) in its citation of statutory
proscriptions violated and does not allege discriminatory
discipline independent of its charge that the Town engaged in
unlawful discrimination as part of an overall scheme to affect
negotiations.  However, the complaint sufficiently alleges the
use of discriminatory disciplinary procedures as the major tactic

of an allegedly unlawful Town negotiations scheme, to afford the
Town notice and the opportunity to defend.21

     We apply the so-called Wright Line analysis announced by the
NLRB in the case Wright Line and Lamoureaux, 251 NLRB 1083
(1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455
U.S. 989 (1982), and approved by the United States Supreme Court
in the case NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), in adjudicating allegations of discriminatory discharge. 
Our most recent reiteration of our adherence to the Wright Line
standard is contained in the case Teamsters Union Local #340 v.
Rangeley Lakes Region, No. 91-22, slip op. at 17, 14 NPER ME-
23005 (Me.L.R.B. Jan. 29, 1992).  In Rangeley, (quoting Teamsters
Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op.
at 10-11, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986)), we stated:

     Since its initial adoption in Holmes v. Town of Old
     Orchard, MLRB No. 82-14 (Sept. 27, 1982); aff'd sub
     nom. Town of Old Orchard Beach v. Old Orchard Beach
     Police Patrolmen's Ass'n., York Super. Ct., Docket No.
     CV-82-613 (Oct. 27, 1983), we have consistently applied
     the National Labor Relations Board's (NLRB) "Wright
     Line" test in the "dual motive" disciplinary context. 
     Ritchie v. Town of Hampden, MLRB No. 83-15 (July 18,
     1983), aff'd sub nom. Town of Hampden v. Maine Labor
     Relations Board, Penobscot Super. Ct., Docket No. CV-
     82-407 (Sept. 14, 1984).  Our use of the "Wright Line"
     [standard] in "dual motive" cases arising under the
     parallel section of the State Employees Labor Relations
     Act, 26 M.R.S.A.  979-C(1)(B), has been approved by
     the Supreme Judicial Court.  Maine State Employees
     Ass'n. v. State Development Office, 499 A.2d 165, 168-
     169 (Me. 1985).  Subsequent to the Board's adoption
     thereof, the Supreme Court of the United States
     affirmed the NLRB's use of the "Wright Line" test. 

     21Ironically the Town's counterclaim against the Teamsters
for refusal to bargain charges a violation of "26 M.R.S.A.  964-
1E and 965-1" rather than of 26 M.R.S.A.  964(2)(B) (1988). 
Additionally, no violation of Section 964(2)(B), was argued,
under that specific statutory citation, in the Town's posthearing
briefs.  The Board has nevertheless considered the Town's
complaint and proof to sufficiently address Section 964(2)(B).


     Mr. Justice White, writing for a unanimous Court, . . .
     outlined the "Wright Line" test as follows:

          The Board held that the [Complainant], of
          course, had the burden of proving that the
          employee's conduct protected by [Section 963]
          was a substantial or a motivating factor in
          the discharge.  Even if this was the case,
          and the employer failed to rebut it, the
          employer could avoid being held in violation
          of Sections [964(1)(A) and (1)(B)] by proving
          by a preponderance of the evidence that the
          discharge rested on the employee's
          unprotected conduct as well and that the
          employee would have lost his job in any
          event.  It thus became clear, if it was not
          clear before, that proof that the discharge
          would have occurred in any event and for
          valid reasons amounted to an affirmative
          defense on which the employer carried the
          burden of proof by a preponderance of the

     NLRB v. Transportation Management Corp., 462 U.S. 393,
     400, 103 S.Ct. 2469, 2473, 76 L.Ed. 2d 667 (1983)
     (footnotes omitted) [sections of Maine Municipal Law
     substituted for parallel sections of National Labor
     Relations Act], cited and adopted by the Board, Ross v.
     Portland School Committee, MLRB No. 83-04, at 19
     (Aug. 29, 1983).

     Employing this standard, we must first determine whether the
Teamsters have satisfied their initial burden of showing that
anti-union animus spurred Pouliot's dismissal of Moen. 
Shouldering this initial burden of proving anti-union motivation
is critical because:

     [T]he NLRA [like the MPELRL] proscribes only
     terminations that are motivated by the [employee's]
     union activities.  Avecor, Inc. v. NLRB, 931 F.2d 928
     (D.C. Cir. 1992), cert. denied, ___ U.S. ____, 112
     S.Ct. 912, 116 L.Ed 2d 812 (1992).  Thus an employer
     does not violate the Act by firing a union member; nor
     may an employee shield himself from all possibility of
     termination merely by becoming a union activist.

Synergy Gas Corp. v. NLRB, 19 F.3rd 649, 652 (D.C. Cir. 1994). 
There is no dispute that Moen and McInnis engaged in protected


activities and that the Town had knowledge thereof.22  The first
real inquiry under Wright Line, therefore, is whether substantial
competent evidence in the record establishes that anti-union
animus was a motivating factor in Moen's termination and in
Pouliot's discipline of McInnis.  As is more fully explained
below, we find that the Teamsters have failed to discharge this
initial burden.  

     The Board does not possess jurisdiction to adjudicate causes
of action based on the alleged constitutional insufficiency of
the due process afforded public employees in disciplinary
matters.  However, the Board is not prohibited from drawing
varying degrees of inference of pretext where the process
afforded either does not attain, or attains only the lowest
ranges of that process reasonably considered due.  We may also
draw an inference of pretext where contractual or rule-
established procedures are substantially disregarded.  Upon
review of the record we draw no such inferences.  The Teamsters
have established no denial of due process or disregard of any
requirement that the Town provide Moen a full-blown evidentiary 
hearing, either prior to discharge or to suspension.

     Moen maintains that he was never given a reason why his
taping was improper and that no rule violations were ever alleged
to have occurred.  The evidence establishes that the Chief
adequately notified Moen that he construed Moen's taping, tape
playing and urging of subordinates to tape to constitute serious
misconduct.  Moen did have adequate notice on February 10, 1993,
of the Chief's conclusion that his secret taping was a serious
offense and that a very thorough investigation was being
conducted by the Chief.  Moen admitted during the investigation
that he had played his secretly-made tapes for people outside the

     22The record does not establish protected activity on
Jordan's part other than union membership and general support.


FPD and that he had encouraged other department employees to
secretly tape the Chief as well.  Finally, Moen was given the
opportunity to be heard by the Chief in a March 1, 1993, meeting
at which he was accompanied by Canelli, his union representative. 
There is no evidence that at this meeting Moen was denied the
opportunity fully to be heard respecting either his taping, his
tape playing, or his encouragement of taping by subordinates. 
Moen was on paid leave for a one-month period prior to his
ultimate discharge and possessed an adequate opportunity to
prepare and submit a written response during the nine days after
the March 1, 1993, investigatory meeting.  Moen's post-
termination grievance/arbitration rights were voluntarily and
knowingly waived in lieu of proceedings before this Board.23 
Accordingly, we find no suspicious violation of pretermination
due process.

     We conclude that the additional reasons listed in Pouliot's
letter of termination to Moen played an insignificant part in the
Chief's decision to discharge Moen.  In other circumstances we
might accord more significance to the fact that Pouliot's letter
of termination does not reference Category III offenses or
provisions of the Job Description, or to the further fact that
the termination letter faults Moen for additional matters either
transpiring during or unearthed as a result of the investigation. 
In light of the tendency of these parties always to litigate
their disputes and to do so in the press as well as in many other
forums, we consider the vagueness of the fault-finding to be
tactically aimed at sustaining the discipline on any grounds and
the surplusage to be gilding of the lily.  

     We find that Pouliot terminated Moen because Pouliot

     23The Town participated in the scheduled first day of the
Teamsters' requested arbitration procedures and vigorously
attempted to convince the Superior Court and the Board to defer
action before the Board, to completion of these proceedings.


believed that Moen's tape recording, tape playing and his
encouragement of taping by subordinates indicated that he was
unfit for law enforcement work at the FPD.  We also find that
McInnis and Jordan were not discriminatorily disciplined.  We
conclude that neither the procedures used nor the disciplinary
measures imposed on Moen, McInnis and Jordan give rise to an
inference of improper anti-union motive.  Upon careful
consideration of the testimony given during the six days of
hearing in this matter, we find no credible or persuasive
evidence upon which to base a finding that either anti-union
animus or coercion in negotiations was a motivating factor in any
of the complained-of discipline.  We therefore find that the
Teamsters have failed to shoulder their initial burden under the
Wright Line standard and that the Teamsters' prohibited practice
charges arising out of the tape recording/playing discipline must
be dismissed.  Moen secretly taped the Chief then shared the
tapes he had improperly made with individuals other than Canelli. 
He urged subordinates to tape the Chief and denied taping during
the investigation.  Pouliot was justified in terminating Moen
because Moen failed to meet the higher standard of conduct that
Pouliot expected of his command-supervisor of patrol.

     It is an unduly complicating arrangement for a supervisor to
serve as a steward, unless the parties have devised an agreement 
upon a method of clear identification of the capacity in which a
steward/supervisor is performing at any one time.  Moen never
notified the Chief that any of their conversations were solely in
his steward capacity.  During all of the material times in this
case, the Chief had the right, in the absence of such notifica-
tion to conclude that Moen was performing the supervisory duties
for which he was being paid.  Unfortunately, Moen was not
performing the job he was being paid to do and deserved to be
fired.  The Chief possessed just cause for suspending the other
taping patrol officers.  In light of these findings we are
statutorily prohibited from ordering reinstatement or back pay by


virtue of the provisions of 26 M.R.S.A.  968(5)(C) (1988).


     We find no record evidence supporting a violation of 26
M.R.S.A.  964(1)(D) (1988), which prohibits discrimination
against employees who participate in protected Court, Board and
grievance/arbitration proceedings.  See Teamsters Local Union No.
48 v. Town of Kittery, No. 84-25 slip op. at 5, 7 NPER 20-15018
(Me.L.R.B. July 13, 1984).  We find that Pouliot's admonitions of
loyalty, without more, constitute warnings by the Chief that
untruthful statements in favor of Moen would be considered
disloyalty to the department.  We find as a matter of fact that
Pouliot's remarks neither coercively urged untruthfulness in
support of a sham investigation nor had a reasonable tendency to
interfere with the exercise of protected activity in violation of
26 M.R.S.A.  964(1)(A) (1988).  Moreover, because it is not
sufficiently clear whether they were made during the initial
investigation, in preparation for arbitration or prior to
proceedings before the Board, we are precluded from finding a
violation of 26 M.R.S.A.  964(1)(D).  This portion of the
Teamsters' complaint must also be dismissed. 

Direct Dealing

     In Teamsters Union Local 340 v. Aroostook County Sheriff's
Department, No. 92-28, slip op. at 22 (Me.L.R.B. Nov. 5, 1992),
we stated:

     [T]here is no blanket prohibition against direct
     communications between employers and employees.  "It
     is, of course, a venerable principle of labor law that
     "an employer acts in bad faith and violates the Act by
     dealing directly with its employees concerning their
     working conditions at a time when they are represented
     by an exclusive bargaining representative.'"  MSEA v.
     Bangor Mental Health Institute, No. 84-01, slip op. at
     6, 6 NPER 20-15004, (Me.L.R.B. Dec. 5, 1983), citing
     Farm Crest Bakeries, 241 N.L.R.B. 1191, 1196-97 (1979). 

     "The injury suffered by the bargaining agent when the
     employer deals directly with represented employees is
     'not that flowing from a breach of contract [but] to
     the union's status as a bargaining representative.'" 
     Id. at 7, citing C & C Plywood Corp., 163 N.L.R.B.
     1022, 1024 (1967), enforced, 413 F.2d 112 (9th Cir.

Quoting Allied Signal, Inc., 140 LRRM 1121 (May 29, 1992) the
Board went on to state in Aroostook County that direct dealing
"need not take the form of actual bargaining.  . . . the question
is whether an employer's direct solicitation of employee
sentiment over working conditions is likely to erode 'the Union's
position as exclusive representative.'" 

     The evidence establishes that the Chief and the Town Manager
initiated contact with Emery and encouraged him to assemble the
unit so that they could be told that the Town had offered five
and not three days of overtime first refusal.  If the Town truly
had only been concerned with clarifying confusion over a mistake
in the number of days in the Town's last overtime position, it
might more advisedly have called or faxed a clarification message
to Canelli, the chief negotiator, or requested that Moen
coordinate with Canelli to confirm the matter with the mediator. 
It is pretextual to assert that need for a sit-down meeting
between unit members, the Chief and various Town officials was
indicated.  Moreover, the February 4th meeting was conducted
during the workday, at the work site and in spite of Town
knowledge of the obvious disapproval of the chief steward, who
was also an assistant on the Teamsters' bargaining team.  During
the meeting the Town entertained a health insurance proposal from
Emery, indicating that the proposal had merit and that something
could be worked out.

     The Town further demonstrated its disregard of the exclusive
agent by discriminatorily granting Emery permission, in contra-
vention of a written union-matter posting ban memorializing past
practice, to post a memorandum and petition on the official


bulletin board, encouraging unit members' assent to contract
closure by the bargaining agent on terms outlined.  These actions
reasonably tended to and did in fact erode the Teamsters' status
as exclusive representative and constitute unlawful interference
with protected rights in violation of 26 M.R.S.A.  964(1)(A)

The Domination Charge

     Although we have found that the Town did engage in direct
dealing with members of the bargaining unit, we think our finding
of a violation of 26 M.R.S.A.  964(1)(A) (1988), based on direct
dealing, sufficiently addresses the Town's conduct in this
regard.  Assistant steward Emery misunderstood his authority to
engage in collective bargaining with the Town, was vulnerable
because of his anxiety over the financial aspects of the health
insurance issue and naively benefited from the accomodative
efforts of the Town, which appeared to be equally as interested
as he in having the contract finalized.  Although these circum-
stances contributed to the occurrence of the direct dealings we
have found herein, we find no evidence in the record sufficient
upon which to conclude that the Town has dominated or interfered
with the formation, existence or administration of any employee
organization in violation of 26 M.R.S.A.  964(1)(D) (1988).

     As we have stated on occasions too numerous to mention,
     the prohibition in section 964(1)(C) "is directed at
     the evil of too much financial or other support of,
     encouraging the formation of, or actually participating
     in, the affairs of the union and thereby potentially
     dominating it."  Teamsters Local 48 v. City of Calais,
     No. 80-29, slip op. at 5, 2 NPER 20-11018 (Me.L.R.B.
     May 13, 1980).

Teamsters Union Local No. 340 v. County of Somerset, No. 94-34,
slip op. at 14 (Me.L.R.B. Apr. 14, 1994).  This portion of the
Teamsters' complaint must, therefore, be dismissed.


Unlawful Insistence on Permissive Subject

     It is axiomatic that one party to negotiations may not
refuse to bargain over mandatory subjects in an attempt to secure
the other's agreement on a proposal respecting a non-mandatory
bargaining subject.  The Teamsters do not dispute the
permissively negotiable nature of their proposal respecting the
dropping of discipline against employees who had taped the Chief. 
The Teamsters also do not dispute that their proposal was that
the Town could consider the contract finalized, on the basis of
agreements reached in negotiations to that date, if the
disciplinary procedures were agreed to be withdrawn.  The
question then becomes whether insistence on the permissive
subject was the basis for arriving at or of a prolongation of
impasse between the parties.  In the circumstances we think it
was not.

     The mere offer of a permissively negotiable proposal does
not constitute a per se violation.  Additionally, the record does
not clearly establish that the Teamsters failed, upon request, to
remove their permissive proposal from the table, see Oxford Hills
Teachers Association v. MSAD No. 17, No. 88-13, slip op. at 27
(Me.L.R.B. June 16, 1989), or to reduce, upon request, the
parties' agreements to writing for ratification.  Insistence upon
the permissive proposal was not the cause of a negotiations
impasse.  The parties were in mediation and the Town had a fact-
finding petition pending before the Board.  "Informal"
negotiations apparently continued between Canelli and Wing after
February 19th resulting in a finalized agreement only three weeks
later, on the date of the scheduled fact finding.  The contract
which Canelli agreed to contained terms identical to those upon
which the parties reached agreement before the end of the
February 19th mediation session.  

     In the totality of the circumstances, including the failure
of the Town to insist upon removal of the Teamsters' proposal,


both parties continued participation in negotiations after the
February 19th session, resulting in a fairly quick agreement, and
considered against the backdrop of the Town's unlawful direct
dealings, we are convinced that the Teamsters' permissive
proposal did not unlawfully prolong collective bargaining
negotiations in this case.  The Town's counter-complaint of
unlawful refusal to bargain must therefore be dismissed.

     We do not find the award of attorney's fees or of costs to
be appropriate in this case.   


     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 provisions of 26 M.R.S.A.
 968(5) (1988 & Supp. 1994), it is hereby ORDERED:

     1.  That the portions of the Teamsters' complaint which
     allege violations of 26 M.R.S.A.  964(1)(C), (D), and
     (E) (1988) be and hereby are dismissed.

     2.  That those portions of the complaint which allege
     violations of 26 M.R.S.A.  964(1)(A) (1994) based on
     Town conduct other than direct dealing with unit
     employees during contract negotiations be and hereby
     are dismissed.

     3.  That the Town's allegation of refusal to bargain in
     violation of 26 M.R.S.A.  964(2)(B) (1988), be and
     hereby is dismissed.

     4.  That the Town, its representatives and agents shall
     cease and desist from interfering with, restraining or
     coercing bargaining unit employees within the meaning
     of 26 M.R.S.A.  964(1)(A) (1988), in violation of
     rights guaranteed by the MPELRL, by dealing directly
     with employees during collective bargaining negotia-


Issued at Augusta, Maine, this 5th day of December, 1994.

The parties are hereby advised     MAINE LABOR RELATIONS BOARD 
of their right, pursuant to 26
M.R.S.A.  968(5)(F) (Supp.
1994), to seek review of this
decision and order by the          /s/___________________________
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       /s/___________________________ 
and order, and otherwise           Howard C. Reiche, Jr.
comply with the requirements       Employer Representative 
of Rule 80C of the Maine Rules
of Civil Procedure.

Employee Representative George W. Lambertson files a separate
opinion, concurring in part and dissenting in part.


     I dissent.  I agree with the majority that the Town engaged
in unlawful direct dealing and that the Teamsters did not
unlawfully condition contract closure upon agreement on a non-
mandatory subject.  I also agree with the majority's disposition
of the Teamsters' domination and retaliation charges.  However, I
think the Chief's conduct and discipline, levied against Moen and
the other employees who taped their conversations with him, was
discriminatory and aimed at putting unlawful pressure on the
members of the unit during negotiations.  I find that the Town
suspended Moen for the coercive purpose of finalizing a contract
on terms favorable to the Town.  I also find that the Town was
well aware of the division within the Teamsters' ranks and that
it terminated Moen for the purpose of permanently undermining the
organizational effectiveness of the Teamsters local.

     Moen is a supervisor who possesses, by virtue of 26 M.R.S.A.
 966(1) (Supp. 1994), the same collective bargaining rights


granted generally to public employees under the MPELRL.24  A unit
description including the Sergeant position in the unit is
contained in the parties' '89-'92 and '92-'94 agreements.25  As a
member of the unit, Moen possesses the statutorily protected
right to serve in the position of local chief steward, to which
he was elected by fellow unit/union members.  Although both the
right of the unit to have Moen as its steward and his right to
serve are statutorily protected, a bargaining unit which makes
its only supervisor member its chief steward sets the stage for
extraordinary and unnecessary difficulty for both the employer
and its chief steward.  However, even this complication, over
which the employer has no control or even permissible influence,
does not excuse the conduct of the Town or the Chief in this
     Allegations of discrimination based on protected status are
among the most difficult of prohibited practice cases to prove. 
They are almost never proven by confession of the alleged bad
actor and are rarely proven through the testimony of employees
willing to put themselves at personal risk of reprisal by
testifying to circumstances which, in themselves, establish the
alleged bad actor's violation.  This case is no exception.  Chief
Pouliot maintains steadfastly that he has not unlawfully
discriminated against Moen.  Determination of whether his
termination of Moen violates the MPELRA must therefore be made
solely upon consideration of circumstantial evidence and
reasonable inferences arising therefrom.

     24Supervisors are expressly excluded from collective
bargaining rights under the National Labor Relations Act.

     25The position of Sergeant was determined to be
appropriately included in the FPD Patrol unit in a unit
determination report dated January 3, 1978.  The position of
Sergeant was originally agreed appropriately to be included in
the FPD patrol unit by written agreement of the parties filed
with the Board on July 20, 1978.  


     It cannot be argued that Moen's suspension and eventual
termination transpired in an atmosphere of generalized anti-union
animus.  The majority has found, and I concur, that the Town was
engaged in unlawful direct dealing with unit employees in
circumvention and denigration of the exclusive collective
bargaining agent.

     It is unfortunate that in Fairfield's Police Department the
employees are so distrustful of the Chief that they feel
compelled to record him in union and personnel matters.  The
widespread taping of Pouliot during personnel transactions by so
many employees indicates to me that there is general concern with
his trustworthiness.  Where there is this much smoke there is
bound to be fire.  It is certainly a protected matter of mutual
aid and protection to have an accurate record of personnel
matters where there are such concerns.

     The recordings at issue here do not violate the law
generally, any direct order of the Chief, any Rule or Procedure
of the FPD, or any proscription contained in the Sergeant's job
description.26  This is also not a case involving Chief Pouliot's
personal privacy rights.  Pouliot when at work is not only a
public official; he is a law enforcement official, a Chief of
Police, not a member of the secret service.  With very few
specific exceptions, nearly all of which are statutory,
everything he says and does is and should be within the public
domain and subject to complete public scrutiny.  No one has
contended that Moen disclosed criminal investigatory facts or
statutorily confidential FPD personnel matters outside the FPD. 

     26There is no evidence that Pouliot ever told Moen, even in
the March 10, 1993, termination letter, that Pouliot considered
the taping or the tape playing to violate provisions contained in
the Sergeant's job description; or that the taping, tape playing
or his urging of subordinates to tape constituted a Category III
offense under any provision of Rule and Regulation Number 1-10


No individual who was deposed by Pouliot in his extensive
investigatory process ever informed Pouliot that Moen had played
tapes relating to any matter in which the individuals for whom
the tapes were played had no legitimate interest.  There is no
evidence establishing that tapes played in the presence of FFD
members concerned any matter in which they had no legitimate
interest, in light of joint FPD/FFD negotiations.  Canelli has a
statutorily recognized interest in all terms and conditions of
employment of FPD unit employees.  Farris' wife was present at
the playing of Moen's recording of Pouliot's admonitions to Moen
about the quality of Farris' log book.  She certainly has a
pecuniary interest in her spouse's continued employment.  Other
than this, there is no evidence of the revelation by Moen of any
portion of recorded conversations involving Pouliot.  Even the
thin reed of the job description's reference to nondisclosure of
private communications permits revelation to those with a need to

     Pouliot had no reasonable expectation of privacy in his
public, on-the-job conversations with Moen.  No unattended
electronic eavesdropping or bugging is alleged here.  Obviously,
because Moen was always present, Moen's recordings contained no
material which Pouliot had not already disclosed orally to Moen. 
Except for purposes of plausible deniability, there is no greater
purpose to be served in advancing a greater expectation of
privacy regarding tapes, than that which exists respecting the
oral statements to Moen which the tapes memorialize.  The
familiar question "what are you afraid of if you have nothing to
hide?" springs easily to mind here.  There is no proof that Moen
revealed legitimately-characterized non-public facts to anyone
who didn't have a need to know them.  There is also nothing in
the record which indicates that the trust which Pouliot reposed
in Moen with respect to his oral statements made in Moen's
presence was not as faithfully kept by Moen with respect to the


     Pouliot immediately suspended McInnis without pay for four
days at the beginning of the investigation, on February 11, 1993,
for mentioning that he had unspecifiedly told Moen of the
occurrence of his interview.  There is no evidence that Pouliot
attempted to determine the nature of any disclosure by McInnis to
Moen and there is no allegation that mere knowledge by Moen that
others were being questioned compromised the investigation.  How
can unit employees freely exercise their individual or collective
MPELRL rights if they cannot freely consult with fellow unit
members or their union steward?  Moreover, because McInnis denied
making photocopies on the evening of February 10, 1993, Pouliot,
on February 11, issued a reprimand to McInnis based solely on
Frazee's statement that he had witnesses to McInnis' off-duty
violation of an apparently discriminatory rule prohibiting
photocopying of only "union materials."  This is so, although
Tucker, who was present, told Frazee that McInnis had not made
photocopies.  Such immediately contingent punishment of McInnis,
a union employee who had come to the station off-duty for the
purpose of obtaining materials from the union's drawer for use by
Moen in a grievance concerning his termination, can only have had
a telegraphic effect on unit members.

     Pouliot's statements to individuals requesting union
representation, as well as the investigatory methods he employed,
were inconsistent with employees' representational rights and
further indicate anti-union animus.27  Pouliot told employees that

     27McInnis and Jordan were orally ordered on threat of
discipline to provide written statements concerning their
previous day's testimony during the investigation.  Pouliot made
a general statement in his office, in Tucker's presence on an
unspecified occasion, that, in general, department employees need
to remember where their paychecks come from.  Pouliot told Farris
that he could not "be a fence sitter, that he should "remember
who [his] friends are and who pays [his] paycheck" and that his
"loyalty is with the department."  Kempers was told by the Chief,
"people seem to think that Gary Moen is the employer around here
. . . remember who to be loyal to."  Kempers considered Pouliot's


they were required to fully cooperate in the investigation,
forbade them from discussing the investigation or their
interviews with anyone, admonished them that disciplinary
measures would result from any untruthfulness, told them they
were not entitled to union representation during questioning--
purportedly concerning another employee's alleged misconduct--and
then asked them if they themselves had taped the Chief or played
any recordings made of him to others.28  Such conduct is
inherently coercive and has a reasonable tendency to chill the
exercise of protected rights.

     Moreover, Pouliot conducted a fishing expedition by asking
employees, during his interrogations concerning Moen's taping
activities, whether there were any other matters he ought to know
about.  Part-time reserve officer LaVerdiere, next on the hiring
list and the employee who stood to gain the most by Moen's
termination--whose long range planning is exemplified by his
present involvement in unit matters which will only affect him if
Moen's termination is upheld--supplied two unrelated past
incidents which found their way into Pouliot's letter terminating
Moen.  Pouliot never questioned Moen or any other person who
witnessed these alleged incidents.  The expanded scope of the
dragnet and the numerous additional reasons Pouliot based the
termination on in his letter to Moen29 indicate that Pouliot was
locked-on disciplining Moen and was attempting to obtain any

statements to constitute a "little" threat.  Pouliot does not
deny these statements, he merely tries to put an evasive spin on

     28This was not a criminal matter respecting which employees
could constitutionally refuse to incriminate themselves.

     29Moen did not have notice of any of the asserted additional
reasons for Pouliot's termination decision.  Moen had no notice
of Pouliot's conclusion that Moen's alleged improper disclosure
of medical information and alleged unsatisfactory shots-fired
response violated FPD Rules and Regulations.


other bolstering circumstances. 

     Dismissal is the equivalent of economic capital punishment. 
I think the punishment of dismissal is so far out of proportion
to the tape recording and tape playing activity of Moen in this
case that a strong inference arises of pretext by the Town.30 
Although the contract's disciplinary procedure does not
specifically list demotion as a permitted form of discipline, the
contract does incorporate the Town's work rules by reference. 
Demotion is specifically listed as a progressive disciplinary
step in Rule 1-10, which limits demotion as a measure which "only
appl[ies] to the Sergeant or senior police officer."  Pouliot
stated that he held Moen to a higher standard because of his
supervisory authority and that his trust in Moen as a second-in-
command of patrol had been irretrievably lost.  If Pouliot wished
to administer discipline to Moen consistent with that given to
the other employees who taped or intended to address deficiencies
in Moen's conduct, performance and supervisory capacity so that
they all might have been corrected, he would, in all likelihood,
have demoted Moen and given him a combination of more tailored
disciplinary measures, as he did with McInnis who received two
separate four-day suspensions and a separate reprimand ostensibly
for different infractions.  I think Pouliot used the tapings as a
pretext to discharge Moen.  Moen, a zealous steward, had been
successful in several grievances against Pouliot.  Moen had
vociferously opposed the Town's attempt, with Emery and Kempers'
unwitting help, to undermine the cohesiveness of the unit in
negotiations and to undermine the exclusive status of the
bargaining agent, during unlawful direct dealings.

     Undoubtedly, both for Moen and the other unit employees,

     30The Board does not possess the jurisdiction to involve
itself in questions of whether an employer has been just to its
employees unless it determines that an injustice is based on
protected union activity.


Moen's termination will have the most persistent coercive,
restraining or interfering effect.  However, the investigatory
methods employed by Pouliot were even more acutely coercive of
employees respecting acceptance of the Town's contract proposals.
The investigation occurred during the final throes of collective
bargaining, involved nearly every member of the FPD and resulted
in the purportedly investigation-related suspension and reprimand
of McInnis.  I conclude that Pouliot imposed the four additional
taping-related suspensions, which substantially affected only
Jordan and McInnis as full-time employees, solely for the sake of
consistent appearance of extreme disapproval of taping.  See
generally Holmes v. Town of Old Orchard Beach, No. 82-14, slip
op. at 12-13, 6 NPER 20-14034 (Me.L.R.B. Sept. 27, 1982). 
Finally, while I agree with the majority that, with respect to
the admonitions of loyalty by Pouliot, a violation of 26 M.R.S.A.
 964(1)(D) (1988) is precluded because it is unclear whether the
admonitions were made during the investigation, prior to the
arbitration or prior to the present Board proceedings; I think
they were made explicitly for the purpose of and had the
reasonable tendency to coerce employees, in violation of
26 M.R.S.A.  964(1)(A) (1988), into rendering evidence
unfavorable to Moen.  I don't accord a significant difference in
the unlawfully coercive effect, to depend upon whether the aim
was to impose or to sustain discipline, which I find to be both
unlawfully motivated and imposed.

     I would rescind the Town's termination of Moen, order back
pay and vacate all other disciplinary measures which resulted
from the taping and the investigations thereof.  I would also
require the Town to pay the Teamsters' costs and representational
fees and to incur the Board's expenses for this entire
proceeding.  The Town's conduct was a blatant violation of the


MPELRL and its counter-charge of unlawful bargaining to impasse
on non-mandatory subjects is a make-weight.  

Issued this 5th day of December, 1994, by:

                                   MAINE LABOR RELATIONS BOARD

                                   George W. Lambertson
                                   Employee Representative