AFSCME, Council 93 v. Town of Rumford, No. 95-09 (Apr. 27, 1995);
aff'd sub nom.  AFSCME, Council 93 v. Maine Labor Relations Board
and Town of Rumford, No. CV-95-221 (Me. Super. Ct., Ken. Cty.,
Oct. 5, 1995); aff'd, 678 A.2d 591 (Me. 1996).

                                      Case No. 95-09
                                      Issued:  April 27, 1995

AFSCME COUNCIL 93,          )
              Complainant,  )
           v.               )           DECISION AND ORDER
TOWN OF RUMFORD,            )
              Respondent.   )

     On November 8, 1994,[fn]1 AFSCME Council 93 (AFSCME) filed a
prohibited practice complaint with the Maine Labor Relations
Board (Board) which alleges that the Town of Rumford (Town) has
violated 26 M.R.S.A.  964(1)(E) (1988).  More specifically, the
complaint alleges that Town Police Sergeant Michael Richard was
placed on administrative leave on April 28, 1994, during an
investigation of alleged misconduct, that Richard was demoted to
Patrolman on May 6, 1994, and that on May 9, 1994, Town Chief of
Police Timothy "Bourassa and others served an 'agreement and
release' to Mr. Richard for his signature."[fn 2]  The complaint
alleges that the "agreement and release was negotiated between
the employer and employee" and that the certified bargaining
agent "was not consulted with nor was any attempt by management
made to negotiate this agreement with the bargaining agent."  The
complaint asks the agreement "be declared null and void," that
Richard be reinstated and made whole and that AFSCME's legal and

     1 The January 20, 1995, Prehearing Officer's Memorandum and
Order erroneously refers to the November 8, 1994, filing date as
November 7, 1994.

     2 The Agreement and Release signed only by Richard states,
inter alia, that "[i]n consideration of the Town of Rumford not
terminating my employment I hereby release and discharge the Town
and its agents . . . from all claims . . . including . . . all
claims under the collective bargaining agreement." 


administrative costs be paid by the Town.

     The Town's answer states that Richard was given the
Agreement and Release in a meeting attended by Richard, the Town
Manager, Chief Bourassa and a union representative, and that
Richard was given five days in which to confer with the union and
with legal counsel before deciding whether to accept its terms. 
The answer states that the Town was not required to bargain with
AFSCME concerning disciplinary action or "concerning an
individual employee's execution of a release from liability of
the employer."  The answer avers by way of affirmative defenses
that the complaint is barred by the six-month statute of
limitations period set forth in 26 M.R.S.A.  968(5)(B) (1988),
and that the complaint fails to allege that the demotion violated
any provisions of the Municipal Public Employees Labor Relations

     A prehearing conference was conducted in this matter on
January 11, 1995, by Alternate Chair Kathy M. Hooke.  Modified
only to correctly reflect a complaint-filing date of November 8,
1994, Chair Hooke's January 20, 1995, Prehearing Conference
Memorandum and Order is hereby incorporated in and made a part of
this decision and order.  An evidentiary hearing was conducted in
this matter on February 15, February 24 and April 5, 1995, by
Alternate Public Chair Pamela D. Chute, Alternate Employee
Representative Gwendolyn Gatcomb and Alternate Employer
Representative Eben B. Marsh.  All parties were afforded the
opportunity to present evidence and argument.  

     At the outset of the hearing on February 15, 1995, AFSCME
requested permission to amend its original complaint to state a
violation of 26 M.R.S.A.  964(1)(A) (1988).  The nature of the
requested amendment, granted on the second day of hearing,


February 24,[fn]3 1995, is best exemplified in the following
transcript passage in which AFSCME Attorney Stephen P. Sunenblick
responds to Town Attorney Michael R. Poulin's question, whether
AFSCME has drafted a written proposed amendment:
               MR. SUNENBLICK:  No, I haven't.  I'd be glad
     to.  I mean I didn't know exactly how this was going to
     unfold.  I don't mind drafting it and I don't mind
     submitting it today.  If I were to draft it I can tell
     you extemporaneously at this moment that what it would
     allege is that at the time the chief informed Stacy
     Carter that Mike Richards was terminated that that was
     not in fact so.  And so the underlying premise for 
     Mr. Carter's actions and for Mr. Richards' actions were
     not factual.  And because this agreement led to a
     relinquishing of Mr. Richards' rights under a
     collective bargaining agreement, we would say that that
     kind of behavior, for the purpose of this motion or
     discussion, assuming again that there's some valid
     basis for it, constitutes an interference with or
     coercion with an employee in the exercise of their
     rights under the Public Employees Labor Relations Act,
     which is proscribed by Section 964(A) (sic).


     The Town is a public employer within the meaning of
26 M.R.S.A.  962(7) (1988).  AFSCME is 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 regular
employees of the Police Department except the Chief and the
investigators.  AFSCME has alleged that the Town has committed
prohibited practices proscribed by 26 M.R.S.A.  964(1)(A) and
(E) (1988).  As is more fully explained below we conclude that
none of the alleged prohibited practices occurred within the
statute of limitations period set forth in 26 M.R.S.A.

     3 AFSCME's requested amendment was permitted on February 24
"to the extent that matters in the [written] amended complaint
[which was received after adjournment of the hearing day on
February 15, 1995,] fall within the requests for amendment . . .
[which were] described by Mr. Sunenblick on the record [on
February 15]."

 968(5)(B) (1988).  Accordingly, we have no jurisdiction over
AFSCME's complaints, and they must be dismissed.

                         FINDINGS OF FACT

     On April 28, 1994, during his first day as Chief of the
Rumford Police Department (RPD) newly-promoted Chief Timothy
Bourassa placed Sergeant and AFSCME RPD bargaining unit president
Michael Richard on paid administrative leave pending an internal
investigation.  The investigation conducted by RPD Lieutenant
Wayne Gallant and the Chief concerned an April 28 incident "in
the jail area or dispatch center" of the RPD, involving the
incarceration of a juvenile.  As Richard's union representative,
Sergeant/Shift Supervisor and AFSCME RPD bargaining unit vice
president Stacy Carter received a copy of a letter placing
Richard on administrative leave.  Carter had acted as Richard's
union representative in the processing of grievances in the past
and acted as a go-between for Richard at all times material to
this case.  On the evening of April 28, Chief Bourassa met in
executive session with the Town's Selectmen, the Town Manager and
the Town Attorney with respect to Richard's having been placed on
administrative leave and the reasons therefor.[fn]4

     On May 4, 1994, Bourassa and Gallant met with Richard.[fn]5 
Richard inquired of his status and was told that he was "still
out on administrative leave with pay . . . and that no decision
had been made yet."  Richard's statements at this investigatory
meeting were consistent with the findings of the investigators to
that point in time.  Bourassa then met with Carter and discussed

      4 AFSCME's assertions respecting the alleged impropriety of
the Town's executive session, based on the apparent failure of
the Town to extend to Richard the opportunity of attendance, are
not within our jurisdiction.

     5 There are no allegations of violation of Weingarten
representational rights with respect to this meeting.


both the investigation and the meeting earlier that day with
Richard.  Bourassa "told [Carter] as the union representative for
Sergeant Richard that . . . [Carter] was to go find Sergeant
Richard either at his home or his parents', wherever he may be,
and [to] advise him that he had been terminated from employment." 
Carter and the Chief discussed the severity of the investigatory
findings and the possibility of other disciplinary options
including demotion.  At this point, as a result of their
conversation, Carter understood that he was to tell Richard that
he had been, or was going to be, terminated unless agreement
could be worked out on a demotion "through the union."

     Carter believed Richard would be terminated if he did not
accept demotion.  Because of his concern about the contract's
language respecting the availability of demotion as a
disciplinary measure,[fn]6 Carter asked the Chief if he could contact
AFSCME field representative Ed Willey, prior to notifying
Richard, to determine whether demotion "was an option that could
be exercised."  Carter attempted to contact Willey by phone but
was unsuccessful prior to talking with Richard.  Carter found
Richard at his parents' home, told him of his conversations with
the Chief and that he had come there "to tell him that he was
going to be terminated from the police department."  They
discussed demotion.  Richard asked Carter to "go back and see
what's going on, what you can do for me."

     6 The parties' contract states in Article 1 - Functions of
Management, that the right to demote "is left exclusively to the
Town Manager with approval of the Board of Selectmen."  Demotion
is not included in the contract's list of "[d]isciplinary
action[s] or [m]easures."  The Town's bylaws provide that RPD
officers "shall be subject to demotion on complaint of the chief
. . . filed with the Town Manager," and that "[h]earings on such
complaints shall be in accordance with the collective bargaining
agreements then in force."  The Town Charter empowers the Town
Manager to "appoint, prescribe the duties of and remove all
employees of the town who are under his jurisdiction."


     Willey returned Carter's call during the afternoon of May 4,
1994.  They spoke about whether demotion was possible in light of
the absence of demotion from the disciplinary provisions of the
contract.  Willey told Carter that if Richard agreed to demotion
they "would not be able to file a grievance" and that "the only
way he would have grievance rights was to take the termination
and then try to fight from that."  Carter relayed Willey's
guidance to Richard later that afternoon.  "Richard thought for a
moment and told [Carter] that he would have to accept demotion
because he couldn't take a chance of losing a fight if he was to
take the being fired."  Carter made sure that was what Richard
wanted to do and then informed the Chief that Richard would
accept a demotion.

     At a meeting in the Town Manager's office on May 6, the
Chief gave Richard, in Carter's presence, a copy of an Agreement
and Release, prepared by then Town Attorney Albert Beliveau. 
Richard was also given a copy of an unsigned demotion letter
dated May 6, 1994.  Carter and Richard spoke with the Town
Manager, who, at the Town Attorney's request, gave Richard an
additional period of time, over the weekend, to re-read the
Agreement and Release, to think it over, to seek counsel and to
decide what he wanted to do.  Richard was told that his decision
needed to be made by 9:00 a.m. on May 9, 1994.  Carter and
Richard reviewed the Agreement and Release together.  Richard
also discussed the Agreement and Release over the weekend with
his fianc,e.  Carter and Richard met with the Town Manager and
Town Clerk at about 9:00 a.m. on Monday, May 9, 1994.  Richard
signed the agreement before a notary during this meeting.  At the
May 9, 1994, meeting, Richard was given a letter of demotion
signed by Bourassa and dated May 6, 1994, which notified him of
his demotion "effective May 8, 1994, per order of the Town

     Neither the Chief nor the Town Manager made any attempt to


negotiate directly with Richard respecting the Agreement and
Release.  No AFSCME agent ever demanded to negotiate Richard's

     Richard spoke to Selectman Thibodeau one and one-half months
after executing the Agreement and Release.  Thibodeau told
Richard that the Selectmen had not voted to terminate him and
that although Bourassa had recommended that the Selectmen fire
him, the Selectmen had told Bourassa "no."  Two weeks later,
Richard spoke with Selectman Shurtleff who told Richard that the
Selectmen knew nothing of the Agreement and Release that Richard
had signed.  By July's end, Richard had spoken to Selectmen
Shurtleff, Rinaldo and Bradley who each confirmed Thibodeau's
statement that he had not been terminated.  Richard informed
Willey of these conversations "sometime the first of August,
somewhere around there."[fn]7  


     AFSCME's original complaint, alleging unlawful refusal to
bargain based on the Town's alleged direct dealing with Michael
Richard in the negotiation of an Agreement and Release, is
frivolous.  The record amply demonstrates that AFSCME president
Richard never dealt with the Town respecting either disciplinary
measures or the Agreement and Release at any time when AFSCME
vice president Stacy Carter was not present in a representative
capacity.  Moreover, Carter consulted with AFSCME Staff
Representative Ed Willey regarding the availability of demotion
as discipline and the effect of signing the release upon the

     7 Richard met with Willey on the occasion of Willey's travel
to a meeting at the Mexico Police Department regarding unrelated
AFSCME business.  Willey never testified and no more exact date
of this conversation was established.


future grievance rights of Richard.[fn]8  Accordingly, AFSCME's
original complaint is hereby dismissed.

     On February 15, 1995, the first day of hearing, the parties
argued at length over the propriety of a request by AFSCME to
amend its complaint to allege Town misrepresentation in the
negotiation of an Agreement and Release by which Richard's
contractual right to grieve Town disciplinary measures was
forfeited.  The Board adjourned at mid-day after granting a
motion for continuance made by AFSCME.[fn]9  Attorney Sunenblick
variously characterized his and AFSCME's knowledge of the facts
constituting the alleged misrepresentation as follows, at
hearing, on February 15, 1995:

     In the course of the last week, with emphasis placed on
     yesterday, it has come to our attention that there was
     indeed some underlying facts to this matter that have
     not ever been made part of the official record in the
     Town of Rumford in terms of minutes that indicate that
     there was some other events that transpired at the same
     time as the contractual arrangement was made between
     the employee and the Town.

          . . . .

     . . . AFSCME, I will represent to you, and AFSCME,
     whether it be the steward, Stacy Carter, or the field
     representative, Ed Willey, or myself as the attorney,
     didn't have any information about any of this until, at
     least with respect to myself, yesterday.

          . . . .

     . . . I received this information yesterday.  Whether I

     8 There is no allegation that Richard was unable to
communicate the verbatim terms of the settlement to Willey by
phone, facsimile or otherwise.  The evidence indicates that
Richard mulled over the proffered agreement with his fianc,e and
with Carter.

     9 AFSCME sought the continuance to enable it to secure the
attendance of witnesses essential to establishing the prohibited
practice complained of in the sought-after amendment.


     could have received it before, I don't know.  The only
     dealings that I had with anybody really in developing
     this case was with Ed Willey, who was the field
     representative and who essentially is my client who I
     represent.  And he had no knowledge of this situation
     either.  And when I asked him basically after I found
     out, you know, what was going on out there, he had
     indicated to me that there was some suspicion of
     something, but every time that he'd ask somebody to
     look, you know, go get something hard core, you know,
     go get the minutes or go get this, that no one ever was
     able to give him any information.  So with respect to
     myself, I didn't know until yesterday.  I think--I wish
     Ed were here.  I think he's out smoking or something. 
     But what he informed me is that there was some--he had
     some inkling of information from Mike Richards.

     Attorney Poulin spoke in opposition to AFSCME's motion to
amend, as indicated in the following February 15, 1995,
transcript passage, with respect to what AFSCME knew and when it
knew the facts alleged to constitute AFSCME's complained-of
allegations of misrepresentation in the compromise of Richard's
grievance rights:

               MR. POULIN:  Okay.  First, at the prehearing
     on January 11, five weeks ago, we had prepared some
     stipulations in this case.  Mr. Sunenblick did not
     appear at the prehearing, and I understand he had car
     trouble or some reason.  Mr. Willey appeared at the
     prehearing for the union.  At that time I asked if the
     union was prepared to stipulate, agree to any of the
     proposed stipulations.  Mr. Willey checked with Mr.
     Sunenblick and came back and said Mr. Sunenblick had
     not spoken to any of the witnesses and therefore was
     not in a position to agree to stipulations.[fn]10

               MR. SUNENBLICK:  I'll state to you that's

               MR. POULIN:  We're now here hearing again, as
     with the prehearing conference, he had not spoken to

     10 We are distressed to learn that AFSCME's field
representative and the union's attorney were apparently not
sufficiently prepared at the time of the prehearing to engage in
the consideration of proposed stipulations, to adequately specify
witnesses or to tender all anticipated documentary evidence.


     any of the witnesses and apparently did not speak to
     the witnesses until yesterday.  That's point No. 1.

     Point No. 2 is that at--and this is why I wanted to
     voir dire Mr. Willey--at the prehearing, the day of the
     prehearing conference, Mr. Willey and I stepped outside
     and Mr. Willey told me on January 11 that the reason
     that Mr. Richard was so upset about this, the reason
     that he had insisted they bring a prohibited practice
     charge, was that one of the selectmen had told him that
     the selectmen hadn't approved this or didn't agree with
     this somehow, and that that's why he was upset.  So. 
     Mr. Willey knew that some time before January 11, and
     we're again for today hearing the first time that
     they're proposing that that's a prohibited practice and
     they want to amend the complaint.

Mr. Richard testified unequivocally that he spoke to Willey in
early August, 1994, about his conversations with the Selectmen,
which indicated that they had not voted to terminate him.

     Because the original complaint has been dismissed there is
nothing left to amend.[fn]11  See Geroux v. City of Old Town, No.
84-24, 7 NPER 20-15016 (Me.L.R.B. June 18, 1984).  Accordingly,
the prohibited practice complained of in AFSCME's February 15,
1995, ore tenus motion to amend, to be cognizable by this Board
must have come to the attention of agents of AFSCME on a date
certain sometime after mid-August of 1994.  The record does not
establish this to be the case.  Richard, president of the
bargaining unit, knew or should have known of the facts alleged
to constitute the complained-of misrepresentation in June or July
of 1994, and AFSCME field representative Willey was apprised of
these facts in early August.  

     We find the original complaint to be frivolous.

     11 Moreover, AFSCME has apparently abandoned its allegations
of direct dealing.  We do not decide herein whether the amended
complaint alleges a violation which arises out of the conduct,
transaction or occurrence set forth or attempted to be set forth
in the original pleading.  See Board Rule 4.06(B).  See also Rule


Additionally, the proceedings on February 15, 1995, almost
exclusively concerned AFSCME's proposed amendment of the original
complaint to set forth a prohibited practice charge based on
facts of which AFSCME was aware more than six months prior to the
first scheduled day of hearing.  And yet, no prehearing request
for continuance and no prehearing request to amend was made by
AFSCME.  Accordingly, we will order AFSCME to pay all the Board
costs for the first day of hearing, February 15, 1995.

     AFSCME's request for fees and costs must be denied because
it has not prevailed on any aspect of its complaints.  In its
response to the amended complaint the Town requested costs,
including reasonable attorney's fees expended in defending
against the amended complaint.  We do not conclude the amended
complaint to be frivolous and therefore will award neither costs
nor attorney fees to the Town for its defense.  The Town made no
similar request with respect to the original complaint and has
offered no estimate of non-Board-related costs or statement of
attorney's fees incurred.  We therefore make no award of
attorney's fees or non-Board costs 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 AFSCME's November 8, 1994, and February 15, 1995,
          complaints be, and hereby are, DISMISSED.

     2.   That AFSCME pay for $671.25 of the total $974.38 Board
          costs incurred during the three days of hearing in this
          matter, consisting of all of the Board costs for
          February 15, 1995, and half of the Board costs assessed
          for the second and third days of hearing.


Issued at Augusta, Maine this 27th day of April, 1995.

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       Pamela D. Chute 
such a review, an appealing        Alternate 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           Eben B. Marsh  
comply with the requirements       Alternate Employer Representative 
of Rule 80C of the Maine Rules
of Civil Procedure.

                                   Gwendolyn Gatcomb 
                                   Alternate Employee Representative