Interim Order on Motion to Quash Subpoena, Feb. 24, 1998; Protective Order, Feb. 24, 1998; Decision and Order, Oct. 19, 1999. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 97-20 & 97-21 Issued: February 24, 1998 _________________________________ ) DANA E. DUFF, ) ) Complainant, ) ) v. ) ) TOWN OF HOULTON, TOWN OF ) HOULTON POLICE DEPARTMENT ) and CHIEF DARRELL MALONE, ) ) Respondents. ) _________________________________) ) INTERIM ORDER ON HOULTON PATROLMEN/DISPATCHER ) MOTION TO QUASH SUBPOENA AND COMMAND UNIT - ) MAINE ASSOCIATION OF POLICE, ) PATROL OFFICER TROY O'BAR, ) PATROL OFFICER A. JOHN HYMAN and ) SERGEANT EDWARD ARCHER, ) ) Complainants, ) ) v. ) ) TOWN OF HOULTON/HOULTON POLICE ) DEPARTMENT and CHIEF OF POLICE ) DARRELL A. MALONE, ) ) Respondents. ) _________________________________) Upon consideration of briefs submitted by the three parties to this prohibited practice proceeding,1 we hereby GRANT Respondent Town of Houlton's Motion to Quash the subpoena requested by Complainant Duff, on the grounds that these documents are confidential under 30-A M.R.S.A. 2702 and may not be released by the Town to Mr. Duff for his use in this consolidated prohibited practice case. These prohibited practice complaints, which arise out of the ____________________ 1 The parties agreed to submit briefs on this issue, in lieu of oral argument before the Board. [-1-] same hiring and promotion selection process conducted by the Town of Houlton Police Department, were consolidated for hearing at the prehearing conference stage of these proceedings. See Pre- hearing Conference Memorandum and Order (July 7, 1997). Mr. Dana Duff, who is represented by private counsel, and the Maine Association of Police (MAP) (on behalf of Mr. Troy O'Bar, Mr. A. John Hyman and Mr. Edward Archer) allege in their complaints that involvement in protected union activities and the employer's anti-union animus adversely affected their respective placements on a selection roster for three available positions. At the prehearing conference, Respondent objected to Exhibits C-49 through C-52 and C-54 through C-56 being provided to Complainant Duff on the grounds that these exhibits (personnel records) are confidential by statute, 30-A M.R.S.A. 2702, and may be released only to the union. These exhibits were not admitted into evidence at the prehearing conference. Mr. Duff's attorney agreed to attempt to secure waivers from the seven individuals whose personnel records are at issue (three of whom are the other Complainants in this proceeding) and, in the alternative, agreed to consider calling these individuals as witnesses and questioning them on the substance of the documents at issue. To our knowledge, Complainant Duff's attorney did not attempt to secure waivers but, instead, requested that the Board issue a subpoena to the Respondent Town of Houlton to produce the following records: (C-49) Complete personnel file of Troy O'Bar (C-50) Complete personnel file of Edward F. Archer (C-51) Complete personnel file of A. John Hyman (C-52) Complete personnel file of Maurice Ellis (C-54) Complete personnel file of James Skehan (C-55) Complete personnel file of Thomas Donahue (C-56) Complete personnel file of Terry Beaton Mr. Duff's attorney requested that these documents be made available for inspection and copying at his law office at least -2- ten days prior to the hearing.2 Prior to issuance of the subpoena, counsel for the Town of Houlton raised concerns with the executive director about the sub- poena request. The executive director determined that Respondent counsel's concerns would be treated as a motion to quash the requested subpoena, and a briefing schedule was established. We turn now to the merits of the motion. While most records retained by municipalities are available for public inspection pursuant to 1 M.R.S.A. 401, et seq., there are exceptions to this general rule. Certain personnel records of municipalities are confidential and not open to public inspection. 30-A M.R.S.A. 2702. There are specific exceptions to this confidentiality statute. Employees of municipalities may inspect and copy their own personnel records (30-A M.R.S.A. 2702(1)(C)(2)), and union representatives are permitted access to personnel records "which may be necessary for the bargaining agent to carry out its collective bargaining responsibilities." 30-A M.R.S.A. 2702(1)(A)(3). The Town does not object to MAP's access to the personnel records of the seven individuals named in Complainant Duff's subpoena request. Nor has any party questioned the Board's ability to review these documents should the Board determine during the course of its hearing that these documents are relevant to the issue before the Board.3 To our knowledge, there has been only one case brought under the confidentiality provision at issue before the Board and it is _____________________ 2 While it is not necessary for us to reach the issue of pre- hearing discovery raised by Complainant's subpoena request, we do wish to note that the Board's rules and procedures do not allow for "discovery" beyond the exchange of exhibits and witness lists which typically occurs at the prehearing conference. 3 We believe the statutory exemption for union representatives, and the cases cited by the Town in its brief, support Board access to relevant municipal personnel records, so long as a protective order is issued by the Board. We will issue an appropriate protective order with this Interim Order. -3- not particularly helpful to our deliberation.4 The courts that have addressed the intent of similar confidentiality statutes generally agree that the statutes prevent only voluntary disclosure and that, if necessary to judicial proceedings or investigations conducted by the Legislature, these otherwise confidential records may be disclosed. Pooler v. Maine Coal Products, 532 A.2d 1026 (Me. 1987); accord Maine Sugar Industries v. Maine Industrial Building Authority, 264 A.2d 1 (Me. 1970). In both of these cases, the Court engaged in a balancing test weighing the risk of injury to those whose records would be disclosed against the benefit gained by disclosure for the correct disposition of the particular proceeding. In this case, we have engaged in a similar balancing test and have determined that the benefit to the Board (and also to Mr. Duff) gained by disclosure of these personnel records to Mr. Duff's attorney does not outweigh the injury to these individuals of disclosure of their confidential personnel documents to Mr. Duff. We are strongly influenced by the fact that Mr. Duff's complaint has been consolidated with MAP's and these records have already been released to MAP for its use at hearing. Both Complainants have alleged that anti-union animus adversely affected Respondent's decision making in the promotional process.5 Should MAP offer relevant confidential records into evidence, or make use of those records during hearing, the Board will consider them in connection with Mr. Duff's case against the Respondent as well. Further disclosure of these confidential personnel records to Mr. Duff's attorney will not substantially affect the Board's correct disposition of Mr. Duff's prohibited practice complaint. _____________________ 4 In Lewiston Daily Sun v. City of Lewiston, 596 A.2d 619 (Me. 1991), the Law Court denied the newspaper access to municipal personnel records which would identify a police officer who was under investigation in the shooting of a civilian. 5 We affirm the decision to consolidate these cases for this reason, as well as for the other reasons set forth in the prehearing conference memorandum and order. -4- We are guided in our decision to grant Respondent's motion to quash by the section of the Administrative Procedures Act (APA) which addresses the disclosure of confidential information for the determination of issues in certain APA proceedings. 5 M.R.S.A. 9057(6).6 That section provides for the disclosure of confidential information subject to specific limitations which we will incorporate into the protective order which accompanies this Interim Order. In closing, we note that Complainant Duff still has available to him the other avenues of access to these documents and the substance contained in them suggested by his attorney at the prehearing conference. For the reasons stated herein, we GRANT the Town of Houlton's Motion to Quash Subpoena requested by Complainant Duff. Dated at Augusta, Maine, this 24th day of February, 1998. MAINE LABOR RELATIONS BOARD /s/_____________________________ Kathy M. Hooke Alternate Chair /s/_____________________________ Gwendolyn Gatcomb Employee Representative /s/_____________________________ Karl Dornish, Jr. Alternate Employer Representative _____________________ 6 It is reasonable for the Board to turn to the APA for guidance in our decision making, even though the APA does not govern judicial review of the Board's prohibited practice determinations. See Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1015 (Me. 1980). -5- ___________________________________________________________________
STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 97-20 & 97-21 Issued: February 24, 1998 _________________________________ ) DANA E. DUFF, ) ) Complainant, ) ) v. ) ) TOWN OF HOULTON, TOWN OF ) HOULTON POLICE DEPARTMENT ) and CHIEF DARRELL MALONE, ) ) Respondents. ) _________________________________) ) PROTECTIVE ORDER HOULTON PATROLMEN/DISPATCHER ) AND COMMAND UNIT - ) MAINE ASSOCIATION OF POLICE, ) PATROL OFFICER TROY O'BAR, ) PATROL OFFICER A. JOHN HYMAN and ) SERGEANT EDWARD ARCHER, ) ) Complainants, ) ) v. ) ) TOWN OF HOULTON/HOULTON POLICE ) DEPARTMENT and CHIEF OF POLICE ) DARRELL A. MALONE, ) ) Respondents. ) _________________________________) Whereas, the Maine Labor Relations Board (hereinafter "the Board") has determined that the Town of Houlton ("the Town") has a legitimate need to protect the confidentiality of personnel records from disclosure to Complainant Duff and the general public; and, Whereas, during the course of this proceeding before the Board, the Town or the Maine Association of Police ("MAP") may introduce into evidence confidential personnel records, or make use of such records during hearing, having lawful access thereto; Now, therefore, it is hereby ORDERED that: [-1-] Information Subject to This Order For the purposes of this Order, "confidential personnel records" shall mean all records set forth in 30-A M.R.S.A. 2702 pertaining to Troy O'Bar, Edward F. Archer, A. John Hyman, Maurice Ellis, James Skehan, Thomas Donahue and Terry Beaton. These "confidential personnel records" will be designated as such on the face of each document. Any record so designated shall be handled in accordance with this Order. Limitations on the Use of Confidential Personnel Records Disclosure of these confidential personnel records is subject to the following limitations: 1. The Board determines that introduction of confidential personnel records is necessary for the determination of the issues before the Board; 2. To the extent practicable, and in order to facilitate the conduct of the Board's hearing, introduction of confidential information will be limited to a discrete segment of the Board's hearing (e.g., toward the conclusion of MAP's presentation of its case-in-chief); this matter will be addressed and resolved at the beginning of the hearing; 3. During the introduction of confidential information, the proceeding is open only to the members of the Board, employees of the Board (e.g., Board Counsel and the Court Reporter), all parties to this proceeding (including Complainant Duff), parties' representatives, counsel of record (including Complainant Duff's counsel) and the witness testifying regarding the information; 4. Complainant Duff and his counsel are not permitted to examine these confidential records during the course of the hearing; 5. To the extent practicable, counsel and witnesses will protect the identity of the employee whose personnel records are -2- referred to at hearing, or introduced into evidence at hearing; 6. Witnesses are sequestered during the introduction of confidential personnel records, except when offering testimony at the proceeding; 7. All parties to this proceeding must sign an agreement not to disclose or use this confidential information except in accordance with this Order. Board Counsel will draft this confidentiality agreement and it will be executed prior to the beginning of the hearing; 8. After hearing, the confidential personnel records shall be sealed within the record, and the portion of the transcript where use is made of these confidential personnel records shall be sealed within the record and may not be further disclosed, except upon order of court; 9. Nothing shall prevent disclosure beyond the terms of this Order if the employees whose confidential personnel records are in issue consent in writing to such disclosure. Dated at Augusta, Maine, this 24th day of February, 1998. MAINE LABOR RELATIONS BOARD /s/_____________________________ Kathy M. Hooke Alternate Chair /s/____________________________ Gwendolyn Gatcomb Employee Representative /s/_____________________________ Karl Dornish, Jr. Alternate Employer Representative -3- ---------------------------------------------------------------
STATE OF MAINE MAINE LABOR RELATIONS BOARD Case Nos. 97-20 & 97-21 Issued: October 19, 1999 _______________________________ ) DANA E. DUFF, ) ) Complainant, ) ) v. ) ) TOWN OF HOULTON, TOWN OF ) HOULTON POLICE DEPARTMENT ) and CHIEF DARRELL MALONE, ) ) Respondents. ) ) _______________________________) DECISION AND ORDER ) HOULTON PATROLMAN/DISPATCHER ) AND COMMAND UNIT - MAINE ) ASSOCIATION OF POLICE, PATROL ) OFFICER TROY O'BAR, PATROL ) OFFICER A. JOHN HYMAN and ) SERGEANT EDWARD ARCHER, ) ) Complainants, ) ) v. ) ) TOWN OF HOULTON/HOULTON POLICE ) DEPARTMENT and CHIEF OF POLICE ) DARRELL MALONE, ) ) Respondents. ) _______________________________) The question presented in these prohibited practice complaints is whether Police Chief Darrell Malone's conduct during a promotional process violated 26 M.R.S.A. 964(1)(A) and (B).1 Complainants allege that their union activism caused Chief ___________________ 1 These cases were consolidated for hearing at a prehearing conference conducted on June 25, 1997. The Prehearing Conference Memorandum and Order, dated July 7, 1997, is incorporated herein and made a part of this Decision and Order. The Interim Order on the Respondents' Motion to Quash Subpoena, dated February 24, 1998, and accompanying Protective Order and Confidentiality Agreement, are also hereby incorporated in and made a part of this Decision and Order. [-1-] Malone to intentionally manipulate his evaluation scores and, in Officer Duff's case, to readminister an oral board, in order to adversely affect their overall standing in the promotional process. This matter was heard over the course of twelve days, between June 3, 1998, and April 16, 1999. The hearing was conducted by Chair Pamela D. Chute, Employee Representative Carol B. Gilmore, and Employer Representative Edwin S. Hamm. Complainant Duff was represented by G. Bradley Snow, Esq; Complainants Houlton Patrolman/Dispatcher and Command Unit, Maine Association of Police ("MAP" or "union"), Messrs. O'Bar, Hyman and Archer were represented by John G. Richardson, Esq., and Daniel R. Felkel, Esq. The Town of Houlton ("Town") was repre- sented by Thomas C. Johnston, Esq., and Matthew S. Raines, Esq. The parties were afforded full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make argument. The parties filed post-hearing briefs which have been considered by the Board. We conclude that Chief Malone's intentional skewing of evaluation scores did violate the Municipal Public Employees Labor Relations Law and we will, therefore, fashion an appropriate remedy to redress this violation and effectuate the policies of the Act. We conclude, however, that Chief Malone did not discriminate against Officer Duff and hereby dismiss his complaint. PRELIMINARY MATTER The rule concerning sequestration of witnesses was invoked in this case. Chair Chute excluded witnesses from the hearing room during the testimony of other witnesses and extended the scope of the rule to prohibit discussion about the case or testimony outside of the hearing room over the course of the proceeding. Chair Chute explained that the purpose of the rule was to ensure "(e)ach of the witnesses is to come in and give -2- their own independent testimony." Chair Chute cautioned the parties and the witnesses who were present at the beginning of the hearing, and reminded the parties repeatedly that the rule was in effect. Chief Darrell Malone was a witness, but because he was also designated as the representative of the Town of Houlton by its attorney, he was not excluded from the hearing room during the testimony of other witnesses. Chief Malone understood the order of sequestration and the scope of its prohibition. Nevertheless, he willfully circumvented the Chair's order and defeated the purpose of the rule by discussing testimony with his secretary between the third and fourth days of hearing. Chief Malone knew his secretary would be called as a witness, yet he spoke with her prior to her testimony about an officer's previous testimony, her role in the promotional process in question and, possibly, other topics related to this case. We do not know whether the Chief's secretary was informed of the scope of the Chair's order; nevertheless, the Chief's discussions with her may have caused her to tailor her testimony to the Chief's advantage.2 We are unable to determine the extent to which the secretary's testimony may have been improperly influenced by Chief Malone. His willful circumvention of the spirit, if not the letter, of the rule has so discredited this witness as to render her testimony not credible. We therefore conclude that an appropriate remedy for Chief Malone's violation of this order is to strike the entire testimony of the secretary, and we have done so. ____________________ 2 The secretary did not want to testify in this hearing, nor did the Town intend to call her as a witness. She was subpoenaed to testify by MAP's counsel. After disclosure of the Chief's violation of the Chair's order, the secretary's testimony continued without objection. Her testimony, if credited, was not crucial to either party's case. -3- JURISDICTION The jurisdiction of the Board to hear this case and to issue a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988). FINDINGS OF FACT Upon review of the entire record the Maine Labor Relations Board finds the following facts: 1. In late 1995, Police Chief Darrell Malone announced that four (4) positions were available on the Houlton police force: two corporal positions, the position of patrol sergeant, and a newly-created position of staff sergeant detective. On November 29, 1995, Chief Malone announced the openings for corporal and patrol sergeant; interested personnel were to apply no later than December 15, 1995. In a separate memorandum a few weeks later, Chief Malone announced the staff sergeant detective opening. Interested personnel were to apply for this position by December 29, 1995, and submit a r,sum, of qualifi- cations "unique to investigative experience" no later than January 12, 1996. 2. At this same time, the Town of Houlton and Maine Association of Police ("MAP"), the bargaining agent for a unit comprised of dispatchers, patrol officers, corporals, sergeants and staff sergeants, were engaged in negotiations for a successor collective bargaining agreement. Chief Malone and Town Manager Allan K. Bean negotiated for the town. Sergeant Edward Archer and Officer Carolyn Crandall were shop stewards for this unit and participated in negotiations with the assistance of John Richardson, Esq. 3. On November 29, 1995, the parties executed a new contract. Article 9.6 of the contract provides that the following factors shall be considered in all promotion decisions: (a) ability to perform the work, (b) physical fitness, (c) past -4- performance, and (d) continuous service. The contract further provides that continuous service shall be the determining factor only where the other factors are relatively equal. 4. The Houlton Police Department enlisted the services of Maine Municipal Association ("MMA") in connection with these promotions. MMA's promotional process consists of four components: a written examination, an oral board, a chief's evaluation, and seniority. The scores for each component are tallied by MMA personnel and applied to a particular formula to arrive at a final score for each candidate. MMA typically informs the hiring authority of each component score only at the end of the entire process when final scores are released. A chief's subjective evaluation is supposed to be done without knowledge of applicants' scores in other components3 in order to ensure the integrity of the process. 5. On December 21, 1995, Chief Malone announced that a written examination would be administered by MMA on January 4, 1996. The same written examination was to be administered to all candidates, regardless of the position(s) being sought. 6. Sergeant Archer and Patrol Officers O'Bar, Hyman and Duff sat for the written examination on January 4, 1996, along with four other candidates from within the police department. MMA's Manager of Personnel Services and Labor Relations administered the examination. The candidates' ranking after the written test was as follows: (1st) Edward Archer (2nd) Troy O'Bar (3rd) Dana Duff ____________________ 3 Except for the calculation of seniority points, which are easily computed. -5- (4th) Officer "A" (5th) Officer "B" (6th) John Hyman (7th) Officer "C" (8th) Officer "D" 7. Shortly after the announcement of these openings, Archer approached Chief Malone to question his decision to permit certain officers to apply. Chief Malone permitted anyone with three years of law enforcement experience to compete. The union contended the literal meaning of contract language, as well as past practice, required the requisite three years of experience be continuous service in the Houlton Police Department immediately preceding the promotion. There were two candidates ineligible for promotion according to the union's interpretation of the contract: Officer "B" and Officer "C". On January 5, 1996, in follow-up to his discussion with the Chief, Sgt. Archer filed a class action grievance pertaining to the criterion used by the Chief in determining eligibility to sit for this examination and otherwise compete for these positions. 8. An oral board for the positions of patrol sergeant and corporal was conducted on January 12, 1996.4 Candidates for this position were given about one week's notice to prepare. The oral boards were conducted by law enforcement personnel from Presque Isle, the Maine State Police, and the U.S. Border Patrol. 9. The candidates' ranking for the three available positions of patrol sergeant (1) and corporal (2), after the written examination and oral board scores were combined and seniority points were computed, was as follows: (1st) Officer "A" (2nd) Troy O'Bar (3rd) A. John Hyman _____________________ 4 Edward Archer was not in the running for these positions since he had already attained the rank of sergeant. Officers "A" and "C" were candidates for these positions and also the staff sergeant detective position. -6- (4th) Dana Duff (5th) Officer "C" (6th) Officer "B" (7th) Officer "D" 10. On January 17, 1996, Sgt. Archer filed two grievances; one concerned an alleged failure of the town to negotiate the terms and conditions of the newly-created position of staff sergeant detective, and the other concerned the Chief's failure to abide by a new contractual requirement to arrange for officers' uniforms to be cleaned. Chief Malone denied both grievances, but he eventually made arrangements with a uniform cleaning service. 11. On January 19, 1996, Sgt. Archer advanced the grievance concerning eligibility for promotion to the third step of the grievance process, the town manager's office. Town Manager Allan Bean denied the grievance and the union filed for arbitration.5 In his January 24, 1996 response to the step III grievance, Mr. Bean wrote: I would also be remiss if I did not sound a cautionary note concerning the increasingly personal and derogatory nature of the wording of recent grievances. Insubordination is not protected merely by being presented in a grievance. May I suggest disputes regarding the interpretation of the contract are better couched in professionally appropriate language. To do otherwise serves no legitimate or persuasive purpose. 12. Chief Malone scheduled a separate oral board for the staff sergeant detective position. The Chief contacted the Aroostook County District Attorney and requested Colonel Mac Dow of the Maine State Police to enlist two other panelists with experience in investigations. Once he was notified of the availability of panelists, an _____________________ 5 Arbitration was held on August 13, 1996. On November 4, 1996, the arbitrator ruled that the minimum qualification for promotion established by Chief Malone did not violate the contract. -7- oral board was scheduled for January 24, 1996. The Chief instructed his secretary to schedule the interviews and notify the candidates. The Chief did not assign specific interview times for the candidates. All candidates were given two days' notice to prepare for the oral board. 13. After the written examination was administered, and prior to the date of the oral board for staff sergeant detective, Chief Malone contacted MMA's Manager of Personnel Services and Labor Relations by telephone to obtain the written examination scores of Sgt. Archer and Officers O'Bar and Hyman.6 14. On January 23, 1996, Officer Dana Duff withdrew his application for the position of staff sergeant detective. Officer Duff had been scheduled to work from 8:00 p.m. on January 23, to 6:00 a.m. on January 24, and his oral board was scheduled for 11:00 a.m. on January 24. Officer Duff notified Chief Malone of his withdrawal in a memorandum which reads: I will not be taking the oral board. I feel that 11:00 a.m. is too early after working all night. Thank you. This was the only contact Officer Duff had with the Chief concerning the oral board, and the Chief did not respond in any fashion to Duff's note. 15. The candidates' ranking for the position of staff sergeant detective, after the written examination and oral board scores were combined and seniority was computed, was as follows: (1st) Edward Archer (2nd) Officer "C" (3rd) Officer "A" 16. A component of MMA's promotional process within police _____________________ 6 Chief Malone may have obtained written examination scores of other candidates as well. The chief testified he was not sure whether he asked for all of the scores, but that "some of the officers" requested their scores and he "got those." -8- departments is an evaluation by the chief of police. The chief's evaluation, worth 20 points, is to address the following categories: practical job knowledge as revealed in performance, personal habits as revealed on the job, work habits, inter- personal skills, and overall present promotional potential. The chief is to complete these evaluations without knowledge of the candidates' other scores. The scale for grading the evaluations is as follows: 17 - 20 Very Good 14 - 16 Good 10 - 13 Acceptable 17. Chief Malone's evaluation scores for the candidates were: Corporal/Patrol Sergeant Staff Sergeant Detective Officer "A" 19.5 Officer "C" 20.0 Officer "B" 19.5 Officer "A" 17.5 Officer "C" 19.5 Edward Archer 11.0 Officer "D" 18.0 Dana Duff 18.0 John Hyman 14.5 Troy O'Bar 12.0 18. Although Chief Malone's evaluations were dated January 4, 1996, he did not submit them to MMA until January 25, 1996, when he mailed the grading sheets for both oral boards and a seniority list.7 The Chief was able to review oral board scores before he turned all of this material over to MMA. The Chief's January 25, 1996 correspondence to MMA requests that final results be mailed to Town Manager Bean. 19. The seniority list submitted by Chief Malone shows Officer "C's" date of hire as "9/12/95"; however, this was the _____________________ 7 MMA had erred in computing seniority points. The union discovered the error when the scores were posted, and filed a grievance. Chief Malone granted the grievance and notified MMA to adjust the scores. Adjustment of the seniority point scores did not change the results. -9- date when Officer "C", while employed elsewhere, accepted the Chief's offer of employment. Officer "C" did not start working for the Houlton Police Department until October 21, 1995, three (3) weeks after Officer Crandall's first day of work as a police officer.8 Officer Crandall was the successful candidate for police officer on October 1, 1995, even though she was the second- highest scoring candidate, because of her performance in the job interview. Officer "C" was rehired three weeks later without going through a formal hiring process. By creating this earlier hiring date for Officer "C", the Chief attempted to give Officer "C" more seniority (and thus, job security) than Officer Crandall. Job security was a concern at this time, because one of these two positions was to be funded by a federal grant which would expire three years later, and the least senior officer would be let go at that time unless funding was received from some other source. 20. According to the town charter, promotion decisions ultimately rest with the town manager. The only discussion Chief Malone and Town Manager Bean had about these promotions is one in which the Chief recommended to the town manager, prior to the start of the promotional process, that candidates with the highest final scores be promoted. In fact, the highest-scoring candidates were promoted. Town Manager Bean had limited opportunity to observe officers on the job, or to evaluate their comparative qualifications for these promotions. Mr. Bean testified he would have promoted Archer, O'Bar, Hyman, or Duff, had they been the highest-scoring candidates for these positions. _____________________ 8 Officer Crandall was a dispatcher for 4-5 years, and one of the shop stewards for this unit, prior to becoming a police officer. -10- 21. MMA completed its compilation of scores and mailed them to the town manager on January 30, 1996. The town manager kept the results in a sealed envelope until the arbitration decision was issued concerning qualifications for promotion. The town manager sought agreement from MAP's attorney to fill the positions, then proceeded to post the results, including the candidates' scores in each component of the process, on November 20, 1996. 22. The following candidates were promoted: Staff Sergeant Detective: Officer "C" Patrol Sergeant: Officer "A" Corporals: Dana Duff and Officer "B" 23. Assuming no change to the Chief's evaluation scores for all of the other candidates: Sergeant Archer would have been promoted to the position of staff sergeant detective if Chief Malone had rated him at 13 rather than 11; Troy O'Bar would have been promoted to the corporal position awarded to Dana Duff if Chief Malone had rated him at 15 rather than 12; he would have been promoted to the corporal position awarded to Officer "B" with a 12.5 rating; John Hyman would have been promoted to the corporal position awarded to Duff if the Chief had rated him at 18 rather than 14.5; he would have been promoted to the other corporal position with a rating of 16. Even if the Chief had rated Officers O'Bar and Hyman at the perfect score of 20, neither would have outscored Officer "A" for the position of patrol sergeant. 24. After the scores were posted in November, 1996, Chief Malone met separately with Officers O'Bar and Hyman, at their _____________________ 9 Officer "C" scored higher than Officer "B" in the corporal/ patrol sergeant race; however, when Officer "C" received the promotion to staff sergeant detective, Officer "B", as the next highest scorer, was promoted to corporal. -11- insistence.10 While they had hoped to go through the evaluations point by point, the Chief would only agree to discuss with them what he considered to be ways to improve. O'Bar and Hyman did not question or dispute some of the concerns raised by the Chief, either at that time or at hearing. Neither officer had been reprimanded or even counseled about performance issues prior to this promotional process. 25. Pie charts depicting percentages of summonses and arrests, complaints, and accidents handled by the Houlton Police Department reveal that, as between the three candidates for the position of staff sergeant detective, Sgt. Archer handled the highest percentage of summonses and arrests from 1992 through 1995, and the highest percentage of complaints from 1992 through 1995. Sergeant Archer handled the highest number of accidents in 1992 and 1994, was tied for highest with Officer "A" in 1993, and was the second highest in 1995. 26. Pie charts depicting these same statistics, as between candidates for the positions of patrol sergeant and corporal, reveal that Officer "B", who joined the police force in June, 1994, handled the highest percentage of summonses and arrests in 1994 and 1995. Officer Hyman handled the highest percentage of summonses and arrests in 1992 and 1993, the second highest in 1994, and the third highest in 1995. Officer Duff handled the second highest percentage in 1995, and the third highest in 1994. Officer "B" handled the highest percentage of complaints in 1995 and the third highest in 1994. Officer O'Bar handled the highest percentage of complaints in 1993 and 1994, and the second highest in 1995. Officer Hyman handled the highest percentage of complaints in 1992, the second highest in 1993 and 1994, and the _____________________ 10 After the promotions were announced, the union filed a grievance on behalf of the complainants. This grievance was withdrawn in connection with the Town's motion to defer heard at the prehearing conference in this case. Chief Malone, who would not meet with Hyman or O'Bar initially, met with them after the grievance was filed. -12- third highest in 1995. In the category of accidents, Officer Hyman handled the highest percentage of accidents in 1992, 1993 and 1994, and Officer O'Bar handled the second highest percentage of accidents in 1994 and 1995. Officer Duff handled the second highest percentage of accidents in 1993. 27. Sergeant Archer and Officer "C" were hired as police officers within weeks of each other in 1985. In 1987, Archer and Officer "C" were selected by the District Attorney's office from a number of volunteers to conduct child abuse investigations. Two years later, Archer was promoted to sergeant and Officer "C" was promoted to corporal. In January, 1995, Sgt. Archer and Officer "C" applied to the Attorney General's ("AG's") office for a position as detective. Archer, Officer "C", and one other candidate were selected as finalists for the position, from among a field of about 150 candidates. Officer "C" was selected for the job, although the Director of Investigations for the AG's office testified it was a "tough call" between Sgt. Archer and Officer "C." Officer "C" left the Houlton Police Department to accept the position with the AG's office in Augusta in January, 1995. In October, 1995, he was rehired by Chief Malone and resigned from his position with the AG's office in order to return to Houlton. When he left the Houlton Police Department, Officer "C" lost all seniority; therefore, at the time of these promotions, he had less than a year of service credited toward his seniority score. 28. At some point in time prior to leaving the Houlton Police Department, Officer "C" was assigned a permanent day shift and permitted to work in plain clothes as an acting detective. Although Officer "C" declined to file a grievance (for reclassification and higher pay) concerning his full-time work outside of classification, Sgt. Archer spoke with the Chief -13- informally about it.11 In May, 1994, Sgt. Archer informed Chief Malone that he was finding it increasingly difficult to effectively investigate child abuse cases because of his schedule (rotating shifts) and duties as sergeant. He had been coming in on his days off, in order to perform investigative duties. Archer informed Chief Malone that, since the department now had a full-time acting detective in Officer "C", he would no longer be taking on child abuse investigations; however, Archer did assist in these investigations after this date. Sergeant Archer's decision to no longer take these cases had no impact on Chief Malone's evaluation of Archer for this promotion. 29. In February, 1995, the Aroostook County District Attorney and Assistant District Attorney wrote letters of recommendation for Sgt. Archer. The District Attorney's reads, in part: . . . I have known and worked with Edward Archer for nearly a decade . . . . . . . Over the years I have developed great respect for both his skills and his worth. Not only is he competent, but he is honest, hard working and caring. . . . Whenever I or any of my staff need to have the Houlton Police Department accomplish some task, whether of great or small moment, we have no doubt about its completion when we have reached Ed to make the request. We are assured when we ask him to perform, obtain or report something, it will be done or there is an exceptional reason why not. . . . _____________________ 11 The staff sergeant of the Houlton Police Department, Staff Sgt. Pelletier, declined to sign-on to a grievance in 1994, when one was filed concerning assignment of lieutenant duties to him. On the other hand, Complainant Hyman did file a grievance in 1995 which sought higher compensation for performing supervisory duties. -14- Whatever Ed elects to do I am certain he will do with caring and preparation. Whoever has Ed working for them has a valuable asset worth protecting. The Assistant District Attorney's reads, in part: I became professionally acquainted with Ed Archer in 1991 . . . . He is a dedicated, caring, hardworking professional. His investigations and follow-up reports have always been thorough and concise. . . . Ed, in my opinion, is a very fair and honest man. Since my employment in 1991, I have never received a complaint from an attorney, judge or citizen regarding Ed's police work. . . . It is my belief that Ed Archer is a definite and indispensable asset to the Town of Houlton. 30. A few months prior to this promotional process, Town Manager Bean received a complaint from a citizen who was not pleased with the progress of an investigation conducted by Sgt. Archer. A little over a week after the complaint was received, the town manager forwarded it to Chief Malone and asked him to check into it. This was the first time the Chief had been asked by a town manager to review the work of a police officer. The Chief checked with Sgt. Archer and, as far as anyone can recall, nothing more came of this complaint. 31. The Houlton Police Department has 19 employees, with a chain of command (following the promotions in question) as follows: the chief, two (2) staff sergeants, one (1) patrol sergeant, three (3) corporals, seven (7) patrol officers, four (4) dispatchers, and one (1) secretary-clerk. All of the employees, except the Chief and the secretary-clerk, are in the bargaining unit represented by MAP. With the exception of Officer "C", all of the unit members were also union members at -15- the time of the Chief's evaluation.12 32. The union did not have formal, regularly-scheduled union meetings. If there was discussion concerning grievances, contract negotiations or working conditions, it occurred in the so-called "back room" of the department where the officers took breaks, ate meals, and socialized. There was an obvious split in the department between those who actively supported MAP's activities and those who did not. Sergeant Archer and the other shop steward, and Officers Hyman and O'Bar, were considered by everyone in the department, including Chief Malone, to be strong union supporters at the time of the Chief's evaluations. The staff sergeant and the two individuals who were promoted to sergeant, however, were not vocal proponents of the union, were reticent to file grievances, and would inform Chief Malone about union discussions in the "back room." In his post-promotion discussions with Officers Hyman and O'Bar regarding ways to improve, Chief Malone said to both of them that "back room talk had no value," and that he knew more than they thought he knew about what was said back there. 33. Dana Duff was hired by the Houlton Police Department in 1974, and was the shop steward for this bargaining unit for many years during the 1980s. Duff was an active shop steward; he filed numerous grievances and successfully represented the union in 4 of 5 arbitrations. Chief Malone came in as chief at the end of Duff's term as steward. Duff resigned from the position of _____________________ 12 Officer "C" was a union member prior to leaving the department for the AG's office. He was not eligible for union membership at the time of the Chief's evaluation, however, because he had not yet been with the department the requisite 6 months. Officer "C" waited until shortly after his promotion in November, 1996, to rejoin the union. -16- shop steward in 1989 after he was denied a promotion.13 Duff resigned because he was "tired of fighting with [the Chief]" and he was sure that the Chief "got tired of listening to [him]." 34. Troy O'Bar was hired by the Houlton Police Department as a dispatcher in 1987, after an unsuccessful application to become a police officer. O'Bar applied twice more for the position of police officer before his successful bid in 1990. O'Bar considered filing a grievance about his repeated non-selection and this information got back to Chief Malone. The Chief mentioned this to O'Bar and said something to the effect that he couldn't hire O'Bar to the position if he filed a grievance because it would look like he was "caving-in to the Union." O'Bar has been the secretary-treasurer of the Union since 1992. In this capacity he receives bank statements at the police station addressed to the "Houlton Police Organization [or Association]." Chief Malone, who opens all mail, hands these statements over to O'Bar. 35. Sergeant Archer became a shop steward in 1991, two years after his promotion to sergeant. At that time, Chief Malone and the lieutenant met with Sgt. Archer and discussed with him the difficulty in holding positions as both shop steward and sergeant. Archer felt the intended message was that his career in the department was doomed if he remained shop steward. 36. In May, 1994, the lieutenant of the Houlton Police Department was placed on administrative leave pending an investigation into charges he had falsified a police report for personal gain. Sergeant Archer reported the charge to Chief Malone after it was reported to Archer. Chief Malone immediately referred the matter to the AG's office for investigation and the lieutenant was placed on leave. _____________________ 13 Duff grieved the denial of promotion; he lost the grievance at arbitration. -17- Chief Malone was very upset about these charges. The lieutenant was second-in-command to the Chief, and they had worked well together on the police force for 24 years. The Chief knew, on the other hand, that relations between this lieutenant and the union had been strained over the years and Archer had informed the Chief that officers were against the lieutenant's return. The charges against the lieutenant were reported in the press, and tension grew at the police department over the next few months. 37. In July, 1994, Chief Malone informed Archer that the AG's office did not intend to prosecute the lieutenant, and that the lieutenant may be returning to the department. Archer passed this information on to the other shop steward and it spread throughout the department. The shop stewards proposed a vote of no confidence in Chief Malone, because they believed he was not doing everything within his power to prevent the lieutenant's return despite evidence of his wrongdoing. Talk of the vote of no confidence got back to Chief Malone from Staff Sergeant Pelletier and from the Chief's secretary, who told the Chief that Sgt. Archer and the other shop steward were heading up the campaign. Word got to the town manager that "the union was holding the vote of no confidence." At one point, Chief Malone told Sgt. Archer that he (Archer) had "orchestrated" this whole situation for his own personal gain.14 38. Allan Bean became the town manager of Houlton in August, 1994, just weeks after the lieutenant was first put on adminis- trative leave. Shortly after Mr. Bean began as town manager, Sgt. Archer hand delivered a grievance to him. This was the _____________________ 14 The proposed vote of no confidence in the Chief was never taken. While the lieutenant was on leave pending investigation of the falsified report charge, he was charged with assaulting two employees. His leave was extended pending investigation into those charges, and he was eventually dismissed in November, 1994, for the assaults. He was criminally prosecuted for the assaults as well, and was convicted for them in June, 1995. -18- first time the town manager and the shop steward met. Town Manager Bean took the grievance from Archer, slammed his hands down on his desk, and asked: "Is there anything else?" Archer left and filed all subsequent grievances by mail. During the 1994-95 negotiations, Bean refused to accept the fact that Archer and Crandall were co-stewards. He would look at Archer and say, "Where is THE steward?" and tried to negotiate the number of stewards MAP could have. 39. In September, 1994, Staff Sergeant Pelletier complained to Chief Malone about Sgt. Archer's failure to follow "standard operating procedures" ("SOPs") ranging from being out of uniform by not wearing his hat on several occasions to failing to fill the cruiser's fuel tank. Chief Malone understood that Staff Sgt. Pelletier and Sgt. Archer had different approaches to police work (Pelletier was a "by-the-book" officer; Archer favored "community policing" philosophies). He was frequently approached by both men with their complaints about each other. Staff Sgt. Pelletier felt the Chief was too lenient at times when it came to requiring officers to follow the SOPs. On this occasion, Chief Malone instructed Staff Sgt. Pelletier to put his concerns about Sgt. Archer in writing. Pelletier submitted a memorandum detailing Archer's alleged violations of the SOPs dating back to January 1994. Chief Malone held on to this memorandum for several weeks without mentioning it to Sgt. Archer. Archer raised the subject with the Chief after he had learned about the memorandum from someone else. Chief Malone hoped the two men could work out their differences without formal intervention. He took no further action on it at that time. 40. On February 13, 1995, without any additional alleged violations of the SOPs on the part of Archer, Staff Sgt. Pelletier issued a written reprimand to Sgt. Archer for violating the SOPs. Chief Malone approved the reprimand, and Archer filed -19- a grievance. No one in the department had ever received a written reprimand before for any of the alleged SOP violations.15 Officers could not believe Archer was disciplined for these alleged violations and it negatively impacted the morale in the department. Chief Malone could not explain what prompted the reprimand after months of inaction on his part. 41. Town Manager Bean instructed Chief Malone to grant Archer's grievance concerning the reprimand for the reason that the alleged violations, some dating back to January, 1994, were stale. Sgt. Archer had requested a letter of apology from Chief Malone as a remedy for the grievance. In response to his request, Chief Malone wrote a memorandum addressed "To whom it may concern," dated April 10, 1995, which reads, in part: . . . Ed Archer has proven himself to be a professional Officer, a real compassion for people. I chose him and one other Officer to investigate child abuse for the Houlton Police Department because I saw in him the compassion he has for children and victims of crime. I have had many occasions to review his work, and I find that he performs his duties in a professional manner. I find Ed Archer to be hard working, honest and with integrity that cannot be questioned. He truly believes in what he is doing as a Police Officer. He has respect from other Police Officers and from other Law Enforcement Agencies. . . . . . . 42. In addition to the grievance about Archer's written reprimand, the union filed grievances in 1995 concerning staffing levels and assignments to patrol the town dump. The grievance concerning patrol of the town dump was advanced to the town manager's office. Town Manager Bean denied the grievance, but the issue was eventually resolved. _____________________ 15 Officer "C" was well known for his unkempt appearance, yet he never received a verbal warning or written reprimand for being out of uniform. -20- 43. Sergeant Archer resigned from the Houlton Police Department in February, 1997, to accept the position of Chief of Police in Lincoln, Maine. 44. There was a causal connection between employees' union activism or lack thereof and Chief Malone's evaluation scores. The more active an employee was in the union, the lower the evaluation score given by Chief Malone. 45. The conduct and comments of Chief Darrell Malone and Town Manager Allan Bean outlined in paragraphs 11, 32 and 38 tend to interfere with, restrain and coerce employees in the free exercise of employee rights under the Municipal Public Employees Labor Relations Law. DISCUSSION Our relevant decisional law is well established. Section 964(1)(A) prohibits an employer from engaging in conduct which interferes with, coerces or restrains union activity. A violation of section 964(1)(A) does not turn on the employer's motive, or whether the coercion succeeded or failed, but on "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Jefferson Teachers Association v. Jefferson School Committee, No. 96-24, slip op. at 25 (Me.L.R.B. August 25, 1997); MSEA v. Department of Human Services, No. 81- 35, slip op. at 4-5, 4 NPER 20-12026, (Me.L.R.B. June 26, 1981) (quoting NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948)). Section 964(1)(B) prohibits a public employer from encouraging or discouraging membership in any employee organization by discrimination in regard to hire or tenure of employment. This prohibition extends to discrimination in regard to promotional opportunities as well. See MSEA v. Department of Transportation, No. 81-34, 5 NPER 20-13019 (Me.L.R.B. March 31, -21- 1982). In order to support a discrimination claim, the complainant has the burden of proving by a preponderance of the evidence that: (i) he engaged in protected activity; (ii) the decision-makers had knowledge of complainant's participation in protected activity; and (iii) there is a relationship, or "causal connection," between the protected activity and the employer's adverse employment action. Casey v. Mountain Valley Education Association and School Administrative District No. 43, Nos. 96-26 & 97-03, slip op. at 27-28 (Me.L.R.B. October 30, 1997) (citing Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 18, 14 NPER ME-23005 (Me.L.R.B. January 29, 1992)). Even if a complainant proves these three essential elements, an employer may still avoid liability if it is able to prove by a preponderance of the evidence that the employment action was based on unprotected activity as well, and the same action would have been taken regardless of the employee's protected activity. MSEA v. State Development Office, 499 A.2d 165, 168-69 (Me. 1985). We will first apply this analysis to Officer Duff's complaint, and then address the complaint filed by MAP. Failure to Promote Dana Duff to Patrol Sergeant or Staff Sergeant Detective Dana Duff contends that his several years as shop steward, actively representing employees in the police department, caused Chief Malone to deny him a promotion to the position of patrol sergeant or staff sergeant detective.16 Complainant Duff's union activity over the years, and Chief Malone's knowledge of it, establish the first two prongs of his burden of proof; however, Duff is unable to establish a causal connection between his union _____________________ 16 Dana Duff was successful in his bid for promotion to the position of corporal. -22- activism and his unsuccessful bid for these positions. Officer Duff was not promoted to patrol sergeant because his oral board scores brought down his high rating after the written examination. There is no evidence that Chief Malone had any influence over the scores given by the panelists on that board. Officer Duff's theory that the Chief purposely bypassed him for promotion to staff sergeant detective by "readministering" an oral board, and not giving him adequate time to prepare for this second oral board, fails as well. Chief Malone determined from the start, and legitimately so, that the promotion decisions needed to be made on two "tracks": the positions of corporal and patrol sergeant are similar to each other, but require different skills and abilities than those required of a detective. The oral board for the position of staff sergeant detective was a different oral board entirely, not a "readministration" of the first oral board. Before Officer Duff even took the written examination, the Chief had announced the positions separately, scheduled different application deadlines, and asked for different application materials from those applying for the detective job. Also, the Chief completed separate evaluations for those officers who applied for the corporal and sergeant positions, as well as for the detective position. All candidates were given the same short notice as Officer Duff received for the detective oral board, and the Chief's secretary scheduled them without regard to the candidates' work schedules. The Chief's participation in this part of the process was minimal, with little opportunity to influence the results of the oral board. Officer Duff took himself out of the running for staff sergeant detective. We are unwilling to draw any inference from the Chief's failure to follow up on Officer Duff's withdrawal. Union animus did not play a part in his non-selection for the position of patrol sergeant or staff sergeant detective. -23- Officer Duff's section (1)(A) claim is derivative; that is to say, his claim that the Chief interfered with, restrained and coerced employees in the exercise of protected rights in violation of section (1)(A) derives from the allegation of discriminatory treatment of Officer Duff in violation of section (1)(B), not from conduct independent of the alleged discrimination. See Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 22, 14 NPER ME-23005 (Me.L.R.B. January 29, 1992) (discriminatory discharge of union organizer inherently interferes with the free exercise of employee rights in violation of section 964 (1)(A)). Since Officer Duff's discrimination claim is without merit, his section (1)(A) claim must also fail. Litchfield Educational Support Personnel Association v. Litchfield School Committee, No. 97-09, slip op. at 21 (Me.L.R.B. July 13, 1998). Accordingly, we dismiss Dana Duff's complaint. MAP Complainants Meet Their Burden of Proof The MAP Complainants allege their union activism caused Chief Malone to manipulate his evaluation scores in order to adversely affect their overall standing in the promotional process. The Complainants have presented sufficient evidence to meet their burden of proving a causal connection between their union activism and the Chief's evaluation scores. These Complainants, as a group, were considered by all members of the Houlton Police Department, including Chief Malone, to be active members of MAP. Individually, Edward Archer had been a shop steward for many years; he had represented MAP in negotiations and actively pursued grievances at the Chief's level and beyond. Troy O'Bar had been the secretary-treasurer of MAP, and Chief Malone knew he held some position of authority in the union because he knew to forward mail addressed to the "Police Organization" to O'Bar. John Hyman, in addition to having filed a grievance in 1995 seeking higher pay when others refused to do -24- so, had been supportive of the union in "back room talk" and this information had a way of getting back to the Chief. These officers, who were unquestionably considered active union members in a workplace where the lines between active and not active were clearly drawn, were poised for promotion when one considers their overall ranking without Chief Malone's evaluation. Archer was in first place for the staff sergeant detective position; O'Bar was in second place and Hyman in third for one of the three available positions for which they had applied. The Chief's evaluation could not put them in a better position for promotion, it could only defeat their chances. We conclude that the Chief's conduct was calculated to defeat their chances. We note at the outset that Chief Malone was focused on scores. Before the promotional process had even begun, he recommended to the town manager that the highest-scoring candidates, no matter who they were, should be promoted. This has not always been the case at the Houlton Police Department. According to the town charter, the town manager is given the final say in promotional decisions regardless of scores. Town Manager Bean promoted Dispatcher Crandall to police officer in October, 1995, because of her performance in an interview, not because she was the highest-scoring candidate for that job. Chief Malone's early focus on scores, in retrospect, is evidence that he intended to skew his evaluations. We are unable to determine exactly when the Chief completed his evaluations. He may have filled out the forms prior to the written examinations and oral boards. The Chief's evaluation scores are so blatantly low, given the scores of the other candidates, that whatever his knowledge of the other component scores, a strong inference of discrimination arises. Regardless of when he filled out the forms, we find that Chief Malone held on to them until he knew all of the scores for the other segments -25- of the promotional process in order to ensure that his ratings of these three union activists were low enough to defeat their chances of promotion. We find that the Chief held on to his evaluations until January 25, 1996, and that he knew the other component scores by then, based on several facts. First, the Chief's testimony concerning his knowledge of written examination scores prior to completion of the process was extremely inconsistent and illustrative of his selective memory. At first he did not recall when he had learned the scores; then he recalled having gotten some of the scores prior to the end of the process, but was not sure whether he had called MMA, or MMA had mailed them to him. Later in his testimony, he remembered having called MMA to get scores about a week or two after the written examination, because some of the officers had wanted to know them. Later still, he could not recall whether anyone other than Archer had asked to receive their score prior to completion of the process. In the end, Chief Malone admitted having known the written examination scores of Edward Archer and some of the other officers. In light of all the evidence, it is reasonable to conclude that "some of the other officers" included the other union activists, O'Bar and Hyman. The Chief testified that he had collected the oral board scoring sheets from the panelists on January 24, and that he had been able to look at them prior to mailing them to MMA. We conclude that he did look at these scores because he made no attempt to deny having done so. Thus, by the evening of January 24, 1996, Chief Malone knew the written examination scores and the oral board scores, and he could easily compute seniority points. The Chief was also, at this point, still in possession of his evaluations. The Chief mailed the evaluations, with all of the other application materials, on the following day. -26- Chief Malone did not hand his evaluations to the MMA representative on January 4, 1996, the day of the written examination, as he insists he did. We base this factual finding on several pieces of evidence. The MMA representative recalled administering the test to the Houlton police candidates, but could not recall whether the Chief handed over his evaluations that evening. He testified that the Chief must have mailed his evaluations because he (MMA representative) did not go back to Houlton after the evening of the written examination. If the Chief had handed his evaluations to the MMA representative on January 4, there should have been an evaluation of Dana Duff for the staff sergeant detective position in MMA's file. Duff was still a candidate for this position on January 4, yet this Chief's evaluation of him is not part of MMA's file. The Chief had no explanation for the missing evaluation, except that he might have called MMA after Duff withdrew. We find this hard to believe because the Chief did not recall making any such call and the MMA representative testified that he did not remove anything from the file. A logical explanation for this missing evaluation, and the one that makes sense to us, is that the evaluations were sent to MMA after Duff had withdrawn from consideration for this position on January 23, 1996. The Chief either pulled Duff's evaluation after the 23rd, or he had not yet completed his evaluations by that date and decided there was no need to do one for Duff since he had withdrawn. We credit John Hyman's testimony that he was told by the Chief's secretary that evaluations were done after the written examination and all promotion materials were mailed together to MMA. Hyman was a serious and credible witness. He answered each question in a thoughtful and forthright manner, whether or not his answers were helpful to his case. He testified that he immediately comprehended the significance of this information, no doubt unwittingly relayed by the Chief's secretary, and that she tried to take it back a few days later when Hyman and Archer -27- appeared at her home to talk about this. She must have realized that the union would make something of this, and wished to distance herself at that point. We believe this happened just as Hyman testified that it did. The only correspondence from Chief Malone to MMA was the letter dated January 25, 1996, the day after the detective oral board, the final component in the promotional process. Although that letter does not refer to any enclosures, we conclude that this was the means by which the Chief submitted all of the promotion materials together, including the evaluations, just as his secretary had told Hyman. Chief Malone repeatedly insisted that he handed his evaluations to the MMA representative on January 4, 1996. This was one of the only factual issues in this case of which the Chief had any recollection, yet the evidence leads us to conclude otherwise. We found the Chief's excessive failure to recall even the most obvious details surrounding this matter frustrating, and it severely damaged his credibility. The MAP complainants were the highest scorers when all of the objective portions of the promotional process were computed, but were scored at the bottom by Chief Malone's subjective evaluations. The blatant gap between the Chief's evaluation scores of these three union activists and those of the other candidates for promotion was not a coincidence. This evidence, together with the evidence of union animus discussed below, sufficiently establishes the requisite causal connection between the complainants' union activism and their unfavorable scores. Evidence of Union Animus Typically, evidence of union animus is circumstantial. Rare is the case in which an employer voices a disdain for unions or announces an intent to treat employees unfavorably based on union activism. The determination of whether union animus exists in a -28- workplace is more a question of subtleties, innuendo and atmosphere. We conclude after this lengthy hearing and extensive testimony that there was an anti-union atmosphere at the Houlton Police Department when Chief Malone completed his evaluations, and that this accounts for the Chief's skewed evaluation scores. In January, 1996, the Houlton Police Department had just completed negotiations for a successor collective bargaining agreement. During these negotiations, Town Manager Bean had conveyed a lack of respect for the union's negotiator, had feigned confusion about his (Archer's) role in negotiations and had ignored him on occasion. Mr. Bean's lack of respect for Archer as shop steward was evident from the beginning of their labor-management relationship, when he slammed the desk and curtly dismissed Archer from his office. We would expect something more in the nature of a handshake on first meeting the employees' shop steward from a new town manager interested in working cooperatively with the union. This lack of respect for a union steward is a symptom of a lack of respect, generally, for unions and the collective bargaining rights of employees.17 The town manager's union animus would have been evident to Chief Malone at negotiations and in their dealings related to grievances. It created an atmosphere of disrespect for union activism which would enable the Chief to skew evaluation scores and manipulate seniority dates (as he did with Officer "C's") without fear of disapproval from the town manager's office. Any good will which may have existed upon signing of the collective bargaining agreement in November, 1995, quickly _____________________ 17 Indeed, Town Manager Bean's lack of respect for the collective bargaining rights of town employees was evident in the hearing before the Board. Mr. Bean's demeanor was flippant. [For example, see: reference to "alphabet soup" for the acronym of a union he worked with for 25 years in the Air Force (T.1269); reference to "body count" for statistical data (T.1296); interchange with Chair Chute (T. 1383); interchange with Member Gilmore (T. 1423).] -29- dissipated when the Chief failed to obtain a cleaning service for officers' uniforms in a timely fashion, pursuant to the new contract. The Chief's explanation for the delay did not impress us. Archer needed to file a grievance about this during the promotional process in order to obtain a right guaranteed by the new contract. Archer also questioned the Chief personally before filing a grievance on January 5, 1996, concerning the Chief's decision to permit Officer "C" (who had just returned from the AG's office) to compete for these promotions. We believe Chief Malone was more than a little annoyed that the union steward would question his decision, because the Chief believed Officer "C" was the perfect candidate for staff sergeant detective, and he wanted to promote him. The union filed a third grievance prior to completion of the promotional process related to the town's failure to negotiate the terms and conditions of this newly- created position. Several grievances had been filed during the year preceding these promotions and much union activity had occurred around the time of this promotional process. Discussions about these union activities had occurred in the "back room" at the police department. Chief Malone's advice to Hyman and O'Bar about ways to improve included the chilling remark about "back room talk" having no value, and his having known more than the officers thought he knew about what went on back there. Chief Malone was not referring to ordinary gossip or chit-chat that had gone on in that area. This would have been of no concern to him in the context of promotional decisions. We conclude that he was referring to the talk in the back room about working conditions and grievances, and that his remark was intended to restrain legitimate union activity.18 Whether or not he intended to _____________________ 18 This warning about "back room talk" was not unlike the Chief's comment to O'Bar when he considered filing a grievance about his repeated non-selection for police officer. The Chief's message on -30- inhibit union activity, it was reasonable for O'Bar and Hyman to interpret his remarks in this fashion. For this reason, we find the Chief's warning to O'Bar and Hyman constitutes a violation of section 964(1)(A), and is evidence of union animus. We also find that Town Manager Bean's January 19 response to a grievance, wherein he warns union members that "insubordination is not protected merely by being presented in a grievance," was threatening and would have a natural tendency to chill any further filing of grievances. This remark, likewise, constitutes a violation of section 964(1)(A). His instruction that "disputes regarding interpretation of the contract are better couched in professionally appropriate language" is further indication of his general lack of respect for the union. Labor-management relations within the Houlton Police Department had not been running smoothly at the time of these promotions. Animosity was running high. There was extensive testimony concerning the charges against the lieutenant, the AG's investigation, the proposed vote of no confidence, the additional charges against the lieutenant of assaulting two police department employees, and his eventual discharge and criminal conviction for the assaults. The Houlton Police Department was certainly in a state of turmoil during this period between June, 1994, and June, 1995. Chief Malone was as upset as anyone, if not more so, since the lieutenant had been his "right-hand man" for so many years. We have no trouble concluding that the aftershock of this troubling time lasted for many months after the lieutenant's conviction in June, 1995. This chain of events regarding the lieutenant was set in _____________________ both occasions was the same: if you file a grievance (or participate in union discussions), you are reducing your chances of advancement in the department. On the other hand, we do not agree with Sgt. Archer's interpretation of the Chief's comments related to the complications with a sergeant serving as shop steward. We agree that this dual role may cause difficulties. See Teamsters Union Local 340 v. Town of Fairfield, No. 94-01, slip op. at 52 (Me.L.R.B. December 5, 1994). -31- motion when Archer approached Chief Malone about the lieutenant's having falsified the police report. In these circumstances, we find it easy to believe that Chief Malone, in a moment of anger and frustration, would accuse Archer of "orchestrating" the entire chain of events for personal gain.19 Chief Malone testified that Archer had done the right thing by coming forward with the falsified police report. We do not question whether the Chief honestly believed this; however, we cannot see how the Chief could have believed that the vote of no confidence in himself had been the right thing to do, and he had every reason to believe that Archer, as shop steward, had "orchestrated" it. There is no question the Chief had been informed that the proposed vote of no confidence had been initiated by the shop stewards. There is also no question that Town Manager Bean understood the vote of no confidence to be union-driven.20 Archer and Crandall had initiated the proposed vote of no confidence in the Chief as representatives of the police department's union, not as concerned officers in positions of authority within the department. The lieutenant's conduct and the proposed vote of no confidence upset the department during the second half of 1994. The reprimand of Sgt. Archer in February, 1995, and the grievance of it which followed, kept labor-management relations on edge. No one had ever been reprimanded for the reasons cited in Archer's reprimand. The timing of the reprimand of this active shop steward is highly suspicious, coming as it did without any _____________________ 19 In light of Archer's rank as sergeant and his standing as a leader among police officers, he would have been a likely candidate for the lieutenant's position and, perhaps, even the Chief's position. 20 The fact that the only non-unit member in the department was invited to participate in the union's discussions about the vote of no confidence does not make it any less of an activity organized by the union. Town representatives were not invited to participate in this effort, as was the case in Teamsters v. City of Calais, No. 80-29 (Me.L.R.B. May 13, 1980), cited by the Town in its brief. -32- additional violations alleged and after months of inaction on Chief Malone's part. Chief Malone testified that he had hoped he could somehow bring Staff Sgt. Pelletier and Sgt. Archer together to resolve their differences short of disciplinary action after the original memorandum from Staff Sgt. Pelletier; yet, he could not describe any effort on his part to do so. Nor could he explain what it was that finally caused him to agree to the February, 1995, reprimand of the shop steward. We believe Chief Malone, motivated by Archer's role in the proposed vote of no confidence, reprimanded him in February, 1995, in order to begin to build a case against his advancing any further in the department. Between the date of the initial memorandum concerning alleged violations of the SOPs, and the date of the reprimand, the lieutenant had been discharged from the police department and Officer "C" (the acting detective) had left to take the job at the AG's office. There were now two (2) vacancies in positions Sgt. Archer would probably find desirable. A reprimand in his file could be used to justify denying him any such promotion. Archer filed a grievance about this, and a few other grievances, prior to the promotional process in question. He then filed three (3) additional grievances once the process began. Chief Malone knew that Archer, Hyman and O'Bar were active union members during this period of labor-management discord. Chief Malone used his chief's evaluations to communicate to these officers and others in the department that union activism would hamper one's chances of advancing within the department. In summary, the promotional process occurred at a point in time when labor-management relations were not running smoothly and there was a high level of union animus. The three strong union supporters in this bargaining unit received blatantly low evaluation scores from Chief Malone. The MAP complainants have met their burden of proving by a preponderance of the evidence -33- that there is a causal connection between their union activism and their low chief's evaluation scores. Burden of Proof Shifts to the Town of Houlton The MAP Complainants having met their burden of proof, our analysis now turns to the Town's evidence, as more fully explained in the following sections, that Chief Malone's evaluation scores were based on unprotected activity as well, and that the same scores would have been given by Chief Malone regardless of the Complainants' union activism. Chief Malone's attempts to justify these skewed evaluation scores were weak and, at times, simply not credible. We there- fore conclude that the Town has failed to meet its burden of proving by a preponderance of the evidence that the disparity in the Chief's evaluation scores was based on factors unrelated to union activism. MSEA v. State Development Office, 499 A.2d at 169. Edward Archer's Candidacy for Staff Sergeant Detective The union contract and the chief's evaluation format require the Chief to evaluate a candidate's past performance and work habits as well as overall promotional potential. Edward Archer should have received a higher rating from Chief Malone based on his job performance and on his potential for success as a detective. The statistics presented in pie charts,21 letters written by _____________________ 21 The Town's attempt to minimize the significance of these statistics is unconvincing. We find this objective evidence to be highly relevant to the question of an officer's past performance. The Chief apparently considers these numbers significant; he testified that he "took stats" to weekly staff meetings and believes these statistics show "results and they show quality," possibly even leadership qualities. Staff Sgt. Pelletier testified that statistics are a good indicator of job performance. -34- attorneys from the DA's office and the Chief, and testimony at hearing from other officers, establish Sgt. Archer's past performance was consistently good. As far as Sgt. Archer's potential to perform detective duties, the evidence reveals he is well able to perform these duties. His selection as one of two detectives to work with the DA's office, the letter written by the Assistant District Attorney about his skills as a detective, and his second-place showing for the position with the Attorney General's office, show that Sgt. Archer had proven potential for success as a staff sergeant detective. Chief Malone agrees that Sgt. Archer was doing a good job, that his volume of work was fairly high, that he "was very capable of handling investigations," and that he is a hard- working man with integrity. The primary rationale articulated by the Chief for Sgt. Archer's distorted score was that Archer lacked follow-through on investigations. The Chief failed to present documentary evidence that this was the case, and this lack of evidence discredits the Chief's weak assertions. This is especially so in light of the Assistant District Attorney's opinion that Archer's follow-up reports had always been thorough and concise. The Assistant District Attorney was in a good position to observe Archer's work firsthand as a litigator of cases developed by police officers in that county. Another reason advanced by the Chief for Archer's extremely low score was that citizens complained directly to the town manager about Archer's investigations. We would have considered this a valid concern if there had been frequent or serious complaints about his performance. However, as it turned out, the Chief could only substantiate one such complaint about Archer prior to his evaluation, and the town manager's and Chief's concern about the complaint at the time was not serious. Chief Malone's testimony around the issue of citizens' complaints having anything to do with Archer's low score was not credible. Chief Malone gave Sgt. Archer an 11 out of 20 on the -35- evaluation scale, which is at the low end of "acceptable" and well below "good." On the other hand, Officer "A" had low productivity according to the pie charts and no substantial detective experience, yet the Chief rated him "very good," 6.5 points higher than Sgt. Archer.22 The successful candidate, Officer "C", was closest to Sgt. Archer in terms of prior experience, but his productivity was not as high as Archer's. Nevertheless, the Chief gave him a perfect score of 20. Officer "A" and Officer "C" were not considered active union members and, in fact, Officer "A" reported "back room talk" to the Chief, and Officer "C" refused to file grievances regarding obvious violations of the collective bargaining agreement. This information about these candidates and their comparative scores goes a long way in explaining the Chief's purposeful skewing of Sgt. Archer's scores. We have no trouble concluding that Sgt. Archer was at the high end of "acceptable," if not well within the range of "good," as a candidate for staff sergeant detective. Either rating by the Chief would have given Sgt. Archer the highest overall score and resulted in his promotion to the position of staff sergeant detective. This is true even if we were to accept as fair the perfect score of 20 given to Officer "C". Whether or not Chief Malone knew the other component scores at the time he completed his evaluations, the Chief knew that rating Sgt. Archer at the low end of acceptable and Officer "C" as perfect was all he could do to avoid promoting Sgt. Archer. The Town, in fact, argues that there is nothing wrong with the Chief's wanting these promotions to turn out in a certain way and doing all he could to influence the results. We agree that if the Chief wished to avoid promoting Sgt. Archer for reasons _____________________ 22 Officer "A" may have had minimal detective experience during the period of time when the Chief was permitting officers to rotate detective duties in anticipation of this new position. There was no evidence presented concerning Officer "A's" specific performance as a detective or his potential for this position. -36- other than his union activism, the purposeful skewing of his evaluation score would be of no import to us.23 The Complainants, however, have met their burden of proving a causal connection between their union activity and artificially low scores. The Town had the burden of proving that the scores would have been given regardless of union activism. The Chief's rationale for Archer's low score simply does not persuade us that this is the case. John Hyman's and Troy O'Bar's Chief's Evaluation Scores Chief Malone's evaluation scores for Officer Hyman and Officer O'Bar were significantly lower than the scores of other candidates for the corporal/patrol sergeant positions. We have already discussed our conclusion that there was a causal connection between these scores and the Complainants' union activism. We further conclude that the Town has not met its burden of proving that this gap in scores was based on factors unrelated to Hyman's and O'Bar's union activism. We note at the outset that Hyman's and O'Bar's scores were not as low as Sgt. Archer's was, nor was the gap between scores in that race quite as wide. Chief Malone rated Hyman at 14.5, which is "good," and O'Bar at 12, which is "acceptable." Standing alone, in the face of some performance concerns which neither officer challenged, these scores are not necessarily suspect. We are troubled, however, by the disparity in scores. Chief Malone rated three of the seven candidates as almost perfect (19.5), and the other two candidates as "very good" (18.0). Once again, the officer who refused to file grievances and rejoined the union only after he was promoted (Officer "C") and the _____________________ 23 The union contract, however, does require the Town to base its promotional decisions on specific criteria; therefore, the Chief does not have unfettered discretion to favor certain candidates over others as the Town argues to this Board. -37- officer who reported back to Chief Malone about the union's activities and discussions in the "back room" (Officer "A") received very high marks from the Chief. While they may have deserved higher ratings than Hyman and O'Bar based on their performance and potential to supervise other officers, the Chief never adequately justified the wide divergence in scores. There were some concerns raised by the Chief concerning Hyman's and O'Bar's performance which the officers did not dispute at the time or at hearing; however, we conclude that these concerns did not fully justify the disparity in scores. These issues had never been raised with Hyman and O'Bar prior to the promotions, so we question the extent to which they affected the Chief's scores. Likewise, we do not know why Officer "D" was considered "very good," and O'Bar only "acceptable."24 In the circumstances, the burden of proving that the gap in these scores was based on legitimate reasons other than degree of union activism rested with the Town, and we are not convinced by the evidence that the disparity in the Chief's evaluation scores was based on anything else. This is not to say that we conclude, as we did in the case of Sgt. Archer, that Hyman and O'Bar should have been promoted. To do so would require much speculation on our part. We cannot presume to know with certainty how these evaluation scores would have turned out had they been given without regard to degree of union activism. In Archer's case, we could say without hesitation that his score should have been at least high end "acceptable," if not "good," and that score would have resulted in his promotion even if Officer "C's" perfect score from the Chief remained untouched. We would have to lower the scores of the successful _____________________ 24 Officer "D" had been with the department for many years; however, seniority is factored into the promotional process separate from the Chief's evaluation. -38- candidates and give Hyman and O'Bar specific higher scores to find that their promotions were warranted. We cannot even find, based on the evidence presented, whether O'Bar should have received the same score as Hyman, or a higher score. We can only find that Hyman and O'Bar received unfairly low evaluation scores based on their union activism. REMEDIES Title 26 M.R.S.A. 968(5)(6) provides that the Board, upon a finding that a party committed a prohibited practice, shall issue an order requiring that party to cease and desist from such prohibited practice and to take such affirmative action as will effectuate the Act. We have concluded that Chief Darrell Malone and Town Manager Allan Bean engaged in prohibited practices in violation of sections 964(1)(A) and (B) by skewing evaluation scores in a promotional process to defeat the chances of union activists, and by making certain comments which would restrain union activity. Accordingly, we will order Respondents to cease and desist from discriminating against employees based on union activity, and to cease and desist from restraining union activities in the manner evidenced in this case. This cease and desist order does not adequately rectify the violations of law which occurred at the Houlton Police Department. We believe that affirmative action must be taken by the Respondents as well to effectuate the policies of the Act. Accordingly, we will order Respondents to post the attached "Notice" in a conspicuous place in the police department, after being signed and dated by Allan Bean, Town Manager, and Darrell Malone, Chief of Police. In addition, we will order that Edward Archer be paid the difference in salary between that which he earned as sergeant and that which he would have earned had he been promoted to staff sergeant detective in November, 1996. This difference in pay should be computed up to the day Archer -39- left the Houlton Police Department in February, 1997, and payment shall include interest in accordance with our decision in Holmes v. Old Orchard Beach, No. 82-14, slip op. at 14 (Me.L.R.B. September 27, 1982). We have concluded that Chief Malone's skewing of evaluation scores was purposeful and blatant. The Chief's evaluation scores were posted in the police department; all of the employees in this bargaining unit could see the artificially low scores given to these union activists and understood the implication. In addition to the chilling effect this posting of the scores would tend to have on protected activities, there was immediate and definite harm to the morale of these officers and injury to their dignity. Hyman and O'Bar may have even lost promotions as a result of the skewed evaluation scores. In light of these factors, we gave serious consideration to Complainants' request for attorneys' fees, but have concluded that a judicious remedy in this case would be to allocate MAP's portion of the Board's costs (itemized in a bill from the Executive Director) to the Town of Houlton, pursuant to Section 968(1). -40- ORDER 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), it is hereby ORDERED that: I. Respondent Town of Houlton and its representatives and agents, including Chief Darrell Malone and Town Manager Allan Bean, shall: A. Cease and desist from: 1. interfering with, restraining or coercing employees in the Houlton Police Department in their exercise of rights guaranteed by the Municipal Public Employees Labor Relations Law; 2. failing to promote or otherwise discriminating against employees in the Houlton Police Department because of their union activism. B. Take the following affirmative action necessary to effectuate the policies of the Act: 1. pay to Edward Archer the back pay and interest described in the "Remedies" section of this decision; 2. post in the Houlton Police Department a copy of the attached "Notice," and maintain the posting in a conspicuous place for thirty (30) consecutive days; 3. notify the Executive Director of the Maine Labor Relations Board, in writing, within twenty (20) days from the date of this Order what steps have been taken to comply with this Order. C. Pay to the Maine Labor Relations Board the Maine Association of Police's portion of the Board's costs in conducting this hearing, as itemized in a bill from the Executive Director. D. If the parties have not agreed on the amount of back pay due to Edward Archer within thirty (30) days after the date of this Order, MAP may file with the Executive Director and serve on the Town of Houlton sufficient documentation to substantiate -41- its claim. The Town of Houlton will have fifteen (15) days from such filing to respond with evidence bearing on the disputed amount. The Board will thereafter issue a supplemental Order or conduct such further proceedings as are necessary to supplement this Order. II. The complaint filed by Dana Duff against the Town of Houlton, Town of Houlton Police Department and Chief Darrell Malone is hereby dismissed. Dated at Augusta, Maine, this 19th day of October, 1999. The parties are advised of MAINE LABOR RELATIONS BOARD their right pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1998) to seek a review of this decision and order by the /s/___________________________ Superior Court. To initiate Pamela D. Chute 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 Carol B. Gilmore comply with the requirements Employee Representative of Rule 80(C) of the Rules of Civil Procedure. /s/___________________________ Edwin S. Hamm Employer Representative -42- STATE OF MAINE MAINE LABOR RELATIONS BOARD NOTICE ___________________________________________________________________ NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS LAW we hereby notify all personnel that: (1) WE WILL NOT deny promotions or otherwise discriminate against employees of the Houlton Police Department because of their interest in or activity on behalf of the Houlton Patrolman/Dispatcher and Command Unit - Maine Association of Police. (2) WE WILL NOT in any other manner interfere with, restrain or coerce employees of the Houlton Police Department in the exercise of their rights to engage in union activities. (3) WE WILL make Edward Archer whole for any loss of earnings he incurred when he was not promoted to the staff sergeant detective position in November, 1996, through February, 1997, when he resigned from the Department. (4) WE WILL, within 20 days of the Decision and Order, notify, in writing, the Maine Labor Relations Board, at its offices in Augusta, Maine, of the steps we have taken to comply with the Decision and Order. TOWN OF HOULTON Dated _____________________ By _________________________________ Allan K. Bean, Town Manager Dated _____________________ By __________________________________ Darrell L. Malone, Chief of Police _______________________________________________________ This Notice must remain posted for 30 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate with the Executive Director of the Maine Labor Relations Board, 90 State House Station, Augusta, Maine 04333-0090, Telephone 287-2015.