Teamsters v. Town of Kennebunk and MLRB, CV-80-413, affirming 
Teamsters v. Town of Kennebunk and Lt. Michael LeBlanc, No. 80-30.
STATE OF MAINE                                            SUPERIOR COURT
KENNEBEC, SS                                              CIVIL ACTION
                                                          Docket No. CV8O-413

             Plaintiff          )
v.                              )
TOWN OF KENNEBUNK               )               DECISION
and                             )
             Defendants         )

     This is an appeal brought pursuant to 26 M.R.S.A.
968(F) and Rule 8OB, Me.R.Civ.P. Plaintiff seeks review
of the Maine Labor Relations Board (hereinafter "the Board")
decision in case no. 80-30.  The Union's complaint before
the Board arose out of the discharge of Patrolman Wayne Doherty
of the Kennebunk police force.  The Board concluded
that the Town committed no prohibited practice in discharging
Doherty, since the decision was in no way motivated
by anti-union animus.

     Plaintiff presents the following issues in his

     1.  Did the Board improperly place the burden of
proof upon the plaintiff?

     2.  Did the Board err in refusing to require the
employer to show "just cause" for Doherty's discharge?


     3.  Did the Board abuse its discretion by failing
to infer anti-union animus from the fact that several of the
asserted motives for dismissal were based on vague rules?

     4.  Did the Board abuse its discretion by not drawing
an adverse inference from the absence of testimony from the
Town Manager?

     5.  Was the Board's finding supported by substantial
evidence on the record as a whole?

     This Court finds against the plaintiff on these
issues and affirms the Board's decision.

                          BURDEN OF PROOF

     Title 26 M.R.S.A. 968(5)(C) requires proof of a
prohibited practice by a preponderance of evidence.  This
places the burden of proof upon the proponent, the union
in this case.

     In discrimination cases, however, the federal courts
shift the burden of proof to the defendant when the
plaintiff has made out a prima facie case of discrimination.
The employer then has the burden of showing that his employment
decision was based on a legitimate consideration.  If he does
this, the burden shifts back to the plaintiff to show that
the profferred reason is a pretext.[fn]1

     The Law Court has repeatedly stated that federal
interpretations of the National Labor Relations Act are

1  E.g. NLRB v. Great Dane Trailers, 333 U.S. 26

persuasive when construing similar portions of the Maine Act.[fn]2
The difficulty of proving motive in discrimination cases
and the similarity of the prohibited practice sections of
the Maine Act to the relevant portions of the N.L.R.A. lead
this Court to agree with the shifting burden of proof standard.

     This Court agrees that a prima facie case of
discrimination was made before the Board.  However, a
legitimate reason for discharge of patrolman Doherty was
found by the Board in this case, and was substantiated,
to a large degree, from Doherty's own testimony.[fn]3  Under
these circumstances, the burden was properly placed upon
plaintiff to show anti-union animus, by demonstrating that
the asserted reason for discharge was mere pretext.

                          "JUST" CAUSE

     Plaintiff objects to the Board's refusal to apply a
"just cause" standard in evaluating the discharge of
patrolman Doherty.  This Court agrees with the Board that
such a standard is irrelevant to this discriminatory
discharge case.  Ordinarily, employers are free to discharge

     2  See, Caribou Board of Education v. Caribou Teacher's
Association, 402 A.2d 1279, 1284 (Me. 1979).

     3  See, M.L.R.B. slip opinion (sl. op.) at page 8.  "We
conclude that Doherty unquestionably had ulterior motives in
his approach to the student.  More importantly, he misrepresented
his motives to Lt. LeBlanc during the investigation of the
incident."  Note that the day after the complaint from the
girl's father, Doherty asked her father if he could see
her.  (transcript at 62).


their employees for any reason, so long as anti-union
animus in no way contributes to the decision.[fn]4  See, N.L.R.B.
v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939).
Accordingly, there is no error in the Board's refusal to
utilize a "just cause" standard.

                    FAILURE TO DRAW INFERENCES

     The Union asserts that the Board abused its
discretion by refusing to infer anti-union animus from the
fact that several of the reasons for discharge cited in the
discharge letter proved to be based on vague rules.

     Drawing inferences from the evidence presented is
for the trier of fact.  Where an inference is supported by
substantial evidence, or where the evidence conflicts and
no inference is drawn, the decision of the Board is final.

     There is substantial evidence in the record to support
the finding that Doherty was discharged for reasons other
than anti-union animus.  Accordingly, I find no error in
failing to draw the inference.

     4  See, transcript at 242, lines 22-23 and 244, lines
2-6; the union's representative seemed to suggest that
unless the discharge was "just," the employer was motivated
by anti-union animus.  If a discharge occurs solely because
a superior dislikes an employee's haircut, the discharge
is not a prohibited practice.  Furthermore, it is possible
that a discharge could be "unjust" (by being overly harsh)
but still serve a valid business purpose.

     5  See, sl. op. at 5, finding of fact no. 22.


     The union also claims error in the failure to draw an
adverse inference from the absence of testimony from the
Town Manager.  International Union of Auto Workers (UAW) v.
N.L.R.B., 429 F.2d 1329 (Cir. 1972) is cited in support
of this contention.

     Although I recognize that failure to draw an adverse
inference might be reversible error in a proper case, the
instant case is distinguishable from the case cited.

     "Generally ... whether to draw the inference is a
matter of discretion for the fact finder." UAW at 1339.
At 459 F.2d 1340-42, the Court of Appeals listed
four "special" reasons for their insistence on the adverse
inference rule, three of which are inapplicable here.

     The second reason cited in UAW is 29 U.S.C. 160(b)(1970)[fn]6
which establishes evidentiary rules for the N.L.R.B. proceedings.
This stands in contrast to 26 M.R.S.A. 968(6).[fn]7  The obvious
difference between these statutes is the more relaxed
procedural and evidentiary requirements of the Maine Statute.

     6  This provides that N.L.R.B. proceedings "shall, so
far as practicable, be conducted in accordance with the
rules of evidence applicable in the district courts of the
United States...."

     7  This section provides that "[t]he hearings conducted
by the board pursuant to this section shall be informal and
the rules of evidence prevailing in judicial proceedings
shall not be binding.


     The third reason cited in the UAW opinion is "defiance
of the Boards compulsory process."  This reason is in-
applicable due to the different facts of the instant case.

     The fourth reason cited was the Board's adherence to
the rule in cases indistinguishable from the UAW case.  No
showing has been made that the M.L.R.B. has a body of
"adverse inference" law developed in cases identical to the
one before this Court.

     Where more than one inference is supportable from the
record as a whole, this Court will not find error in the
refusal of the Board to draw one particular inference.  In
this case, sufficient facts from the record suggest that
absence of testimony bv the Town Manager was not due to
fear of adverse testimony.[fn]8  No abuse of discretion was
involved in the failure to draw an adverse inference.

     8  On direct examination, the employer's representative
sought to bring out the fact that the Town Manager had made
the decision to discharge Doherty. (tr. 154).  The Town
Manager was listed as a witness by the Town.  Although the
union had notice of these facts well before the end of
the hearing, they made no attempt to present the Town
Manager's testimony themselves.  On these facts, it was
permissible not to draw an adverse inference.  Cf. NLRB v.
Massachusetts Machine & Stamping, Inc., 578 F.2d 15, 20
(1st Cir. 1978) (since company also could have called a
witness, no error where Board refused to draw adverse
inference from Board's failure to call a witness).


                      SUFFICIENCY OF EVIDENCE

     Title 26 M.R.S.A. 968(F) provides that "the findings
of the board on questions of fact shall be final unless
clearly erroneous."  "Findings of fact supported by credible
evidence are not clearly erroneous.:  Conover v. Conover, 403
A.2d 352 (Me. 1979).[fn]9  While plaintiff presented considerable
evidence at the hearing below, theirs was not the only
evidence in the case.  Sufficient facts exist in the record
to support the Board's finding that patrolman Doherty was
discharged for misrepresentation to his superior, and not due
to his union activities.  Accordingly, no error is found in
the Board's decision.

                        REQUEST TO REMAND

     During the pendency of the appeal, appellant filed a
motion with the Board to reopen the record, obviously, the
Board lacked jurisdiction.  The appellant now urges this
Court to remand the matter to the Board for further hearing.
In view of the conclusions reached on the appeal, an order
remanding the case to the Board for further evidence is
considered inappropriate.  Consequently, the appellant's request
to remand is denied.

     9  The "clearly erroneous" standard for evaluating administrative
findings is basically the same as the "substantial evidence"
80B.6 (1977 Supp.) n. 34.65.


     The entry will be:

               The Decision of the Maine Labor
               Relations Board is AFFIRMED.

               Plaintiff's Appeal is DENIED.

               Plaintiff's request to remand is DENIED.

Dated:  February 10, 1981         /s/___________________________________
                                  Roland J. Poulin - Judge, District
                                  Court (A.R.) assigned to Superior