Inhabitants of the Town of Winthrop and Charles Jackson, Police Chief v. MLRB and Teamsters, CV-84-538, appeal from No. 84-06, Motion for Stay of Board Decision denied (12/11/84), Decision and Order (July 11, 1985). STATE OF MAINE SUPERIOR COURT KENNEBEC, SS. Civil Action Docket No. CV 84-538 INHABITANTS OF THE TOWN OF WINTHROP, ) a municipal corporation duly organized ) under the laws of the State of Maine, ) with a place of business in Winthrop, ) Maine, ) ) and ) ) CHARLES JACKSON, in his capacity as ) Chief of Police in the Town of Winthrop, ) Maine, ) ) Plaintiffs ) ) v. ) MOTION FOR STAY ) MAINE LABOR RELATIONS BOARD, an ) agency of the State of Maine, ) ) and ) ) TEAMSTERS LOCAL UNION #48, State, ) county, municipal and university ) employees in the State of Maine, ) with a place of business at Augusta, ) Maine, ) ) Defendants ) ) NOW COME the Plaintiffs in this matter and request that a stay of the decision of the Maine Labor Relations Board dated November 16, 1984, be granted, and in particular that paragraphs 2, 3, 4, 5 and 6 of the Order which appears on pages 8 and 9 of the Decision be stayed pending the outccme of this appeal for the following reasons: 1. Substantial and irreparable injury will be sustained by the Employer if the Decision is not stayed because the reinstatement of Officer Fred Pullen will necessitate the discharge of another police officer while subsequent to the discharge. 2. Further, the payment of back wages to Officer Fred Pullen will place the Town in a position of jeopardy in the recovery of these funds in the event that the Plaintiff's appeal is sustained. 3. Upon information and belief, Officer Fred Pullen has other income and other employment at the present time which allows him to continue his prior standard of living without the payment of his retroactive pay and benefits. 4. The Plaintiffs further contend that the re-employment of Officer Fred Pullen at the present time would pose a substantial risk and danger to the public health and safety in view of the Employer's belief that Officer Fred Pullen has falsified official documents and engaged in other -1- conduct unbecoming of a police officer and which further renders Officer Pullen a serious liability to the effective operation of the Winthrop Police Department. WHEREFORE, the Plaintiffs request that a hearing be held at the Court's earliest convenience for the presentation of evidence on the matter of the granting of a stay of the order of the Labor Board dated November 16, 1984. Dated: December 3, 1984 __________________________________________ Lee K. Bragg, Esq. Attorney for Plaintiffs Bernstein, Shur, Sawyer & Nelson Two Central Plaza Augusta, Maine 04330 12/11/84 - Motion for Stay Denied for reasons set forth on the record. /s/Morton Brody -2- STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. CV-84-528 CV-84-538 INHABITANTS OF THE TOWN OF WINTHROP, et al., Plaintiffs vs. MAINE LABOR RELATIONS BOARD, et al., Defendants DECISION and ORDER and TEAMSTERS LOCAL UNION NO. 48, Plaintiff vs. MAINE LABOR RELATION BOARD, et al., Defendants This matter is before the Court pursuant to M.R.Civ. P. 80B and 26 M.R.S.A. Sec. 968(5)(F) (Supp. 1984-85) for review of a decision by the Maine Labor Relations Board that the Town of Winthrop (Town) committed a prohibited practice. The parties appeared before the Court for a hearing on June 5, 1985. The central issues on appeal are first, whether anti-union bias was a motivating factor in the Town's discharge of two members of its police department, Officer Pullen and Corporal Cookson, and second, whether Pullen and Cookson, or either of them, would have been discharged even absent any anti-union 2 -1- bias. I. Facts The Maine Labor Relations Board made the following findings of fact. The instant litigation arose out of the firing of two members of the Town's police department, Officer Pullen and Corporal Cookson. Over a period of approximately three years, Officer Seth Higgins, as Shop Steward, filed between 30 and 40 union grievances with the Town's Chief of Police, Charles H. Jackson. The personal relationship between Higgins and Jackson steadily deteriorated, with Higgins convinced that Jackson would not take union grievances seriously, and Jackson convinced that Higgins was set on driving him from office. Chief Jackson had been a union man himself during previous employment, and he had come to Winthrop without any preconceived hostility towards unions. However, he also attached great importance to personal loyalty to himself, and what began as Jackson's personal vendetta against Higgins soon escalated to anti-union feelings on the part of the Chief. Pullen's discharge stemmed from his filing of false information with public agencies in connection with his work as an instructor in Emergency Medical Technician (EMT) training. For the purpose of receiving a certificate of course completion from the Kennebec Valley Vocational Technical Institute dated back to February 3, 1983, Pullen falsely reported that he had conducted a formal -2- EMT course of instruction on February 1, 2, and 3, 1983, when the course was actually given from February 14 to March 14. The "back-dated" certificate was necessary for Pullen to continue, without interruption, his status as a licensed EMT instructor. Cookson's discharge was also based in large part on the EMT episode. For the purpose of obtaining a renewal of his EMT license, Cookson allowed his name to be submitted to the KVTI as a participant in the fictitious February 1-3 course. He also had Leonard Bates, as Chief of Service of the Monmouth Rescue Unit, certify him as being affiliated with that unit, in satisfaction of an independent requirement for EMT license renewal. In addition to falsely certifying Cookson, Bates allowed his name to be included as a participant in Pullen's non-existent Feb. 1-3 EMT course, and submitted the February 3rd course completion certificate to the State to renew his own EMT license. As a result of their participation in the EMT affair, Pullen and Cookson were discharged. Bates received no discipline. II. Discussion The so-called "Wright Line test," gleaned from Wright Line v. Lamoureux, 251 N.L.R.B. 1083 (1980) and endorsed by the Supreme Court in National Labor Relations Board v. Transportation Management Corporation, ___ U.S. ___, 103 S.Ct. 2469 (1983), requires a two-tiered approach to dual-motive cases. The Union bears the initial burden of showing, by a preponderance of the evidence, that an anti-union animus contributed to the employer's decision to discharge an employee. If the Union is successful, the employer -3- can still prevail by, demonstrating by a preponderance of the evidence that the worker would have been fired even if he had not been involved with the union. Title 26 M.R.S.A. 968(5)(F) directs that "findings of the [Maine Labor Relations Board] on questions of fact shall be final unless shown to be clearly erroneous." The findings of fact of the Board are to be upheld if there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1014 (Me. 1980). The "clearly erroneous" standard is the same as the "substantial evidence" test employed in review pursuant to the Maine Administrative Procedures Act. Id. The Board's conclusion that anti-union animus was a motivating factor in the discharge of Pullen and Cookson is a finding of fact, and it is supported by substantial evidence. In addition to the well documented problems between Chief Jackson and Higgins, which could be reasonably seen as giving rise to anti-union sentiment on Jackson's part, the Board heard testimony from Pamela Tegelaar, a former reserve police officer, Christopher Dumaine, a former chief of police and non-union employee of the Winthrop Police Department, and Judith Teague, a dispatcher for the Department, regarding Jackson's anti-union feelings. Though other Department employees testified that Jackson's policy was to treat all employees equally regardless of union affiliation, the presence of inconsistent evidence in the record does not prevent an agency's findings from being sustained if there is -4- substantial evidence to support them. Seven Islands Land Co. v. Maine Land Use Regulation Commission, 450 A.2d 475, 479 (Me. 1982). The Board's finding that, notwithstanding Jackson's anti-union bias, Pullen and Cookson would have been disciplined anyway, is similarly supported by substantial evidence. For filing false information with the State regarding his EMT work, Pullen could have been charged with a Class D crime. Manipulation of public records is highly improper conduct under any circumstance. It is particularly egregious behavior in a public servant endowed with the public trust. Similarly, Cookson's role in the EMT affair, standing alone, supported disciplinary measures. The Union argues that the Department's failure to discipline Bates for his role in the EMT scam demonstrates that no action would have been taken against Pullen and Cookson absent their union affiliation. Whether Bates' misconduct was qualitatively worse than that of Pullen is a close question. The Board itself noted that "[mlembers of the Department would understandably conclude that because he was not a Union member Bates received no discipline whatever, while Pullen for his actions was discharged." Pullen initiated the EMT course incident; Bates allowed the inclusion of his name as a "student" in the course. Bates' later conduct in falsely certifying Cookson as affiliated with the Monmouth Rescue Unit, while reprehensible, was a transgression less elaborate than Pullen's. While Pullen's misconduct was arguably more serious than -5- Bates', the marked disparity in disciplinary measures -- discharge for Pullen, no discipline for Bates -- is highly supportive of the Board's determination that the disciplinary action taken against Pullen would have been milder absent the existence of anti-union animus. Far from being an "isolated example" of favoritism towards non-union personnel, as characterized by the Town, the lenient treatment of Bates for substantially similar conduct including personal involvement in the same underlying incident would lead a reasonable person to believe that anti-union bias influenced the Town's actions. Therefore, the Board's findings that Pullen would have been disciplined anyway, but less harshly, will be upheld. Cookson presents a different situation. His involvement in the EMT episode was essentially passive, as Pullen reported the fictitious EMT course with Cookson listed as a participant, and Bates falsely certified Cookson as affiliated with the rescue unit. The Board's finding that Cookson "would and should" have been discharged notwithstanding any anti-union sentiment was based on his involvement in "a long series of episodes in which he demonstrated an inability to adhere strictly to the truth." Though the Board is silent on what "episodes" it is referring to, the reference is apparently to Cookson's various accidents with his police cruiser. Evidently, the majority of the Board found Cookson's accounts of those incidents incredible: the majority stated that it "noted evidence of Cookson's problem with the truth during the course of his sworn testimony before -6- the Board, some of which was far from persuasive." From the early days of administrative law, the determination of the credibility of witnesses has been uniquely the province of the hearing body, by virtue of that body's opportunity to observe their demeanor or conduct at the hearing. See Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1951) (cited in In re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (Me. 1973)). As factfinder, an administrative agency can reject even uncontradicted testimony based on a witness's lack of credibility. See Mack v. Municipal Officers of the Town of Cape Elizabeth, 463 A.2d 717, 720-21 (Me. 1983). The Board was entitled to discredit Cookson's accounting of his alleged past misconduct, much of which was in fact contradicted by the testimony of others. The Board was similarly entitled to find that the EMT episode was for Cookson just the latest of a series of events, the cumulative effect of which bore on his honesty and overall fitness to be a police officer, and merited his discharge from the force. The Town's remaining argument on appeal is that 26 M.R.S.A. 968(5)(C) limits the Board's authority to vary the discipline levied by the employer. The Town's position seems to be that where, as in Pullen's case, cause for some discipline is found by the Board, the employer enjoys unfettered discretion to decide what that discipline should be. The "all or nothing" approach urged by the Town, in which the Board would either have to affirm a discharge or preclude all discipline, is not required by -7- 968(5)(C): After hearing and argument if, upon a preponderance of the evidence received, the board shall be of the opinion that any party named in the complaint has engaged in or is engaging in any such prohibited practice, then the board shall in writing state its findings of fact and the reasons for its conclusions and shall issue and cause to be served upon such party an order requiring such party to cease and desist from such prohibited practice and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this chapter. No order of the board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. (emphasis added). Section 968(5)(C) grants the Board broad remedial powers. The last sentence of the section must be read as limiting those powers only where cause exists for the particular sanction assessed by the employer. The Court concludes that the Board's decision should be upheld. Therefore, it is ORDERED and the entry shall be: 1. Cross-appeals DENIED. 2. The decision of the Maine Labor Relations Board is AFFIRMED. Dated: July 11, 1985 ________________________________ MORTON A. BRODY Justice, Superior Court -8-