Case No. 09-04
Issued: January 28, 2009



TOWN OF SANFORD, Respondent.




	   The prohibited practice complaint filed by the Sanford
Police Association alleges that the Town of Sanford's police
chief violated the First Amendment rights of various superior
officers in the police department and violated the Municipal
Public Employees Labor Relations Law by adopting a policy
prohibiting criticism of department policies and practices by
supervisors in the presence of subordinates.  Specifically, the
Union charges that this policy, particularly as it applies to
off-duty hours and in union meetings, constitutes interfering
with the exercise of the employees' collective bargaining rights
in violation of 26 M.R.S.A. §964(1)(A).[fn]1  
     A prehearing conference was held on October 27, 2008.    
The Sanford Police Association (the "Union") was represented by
Daniel R. Felkel, Esq., and the Town of Sanford (the "Employer")
was represented by Bryan M. Dench, Esq., and Kelly M. Hoffman,
Esq.  In its response to the complaint and its prehearing
submission, the Employer argued that the complaint should be 
dismissed because the Union could have, but did not, address the

     1.  The Union's legal memorandum also refers to §964(1)(B) and
(C), which prohibit encouraging or discouraging union membership by
discrimination and prohibit employer domination of union
organizations, respectively.  No facts were alleged or offered in
evidence to support a charge under either provision.

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issue through the grievance procedure.  In the Employer's legal
memorandum submitted prior to the evidentiary hearing pursuant to
the Prehearing Conference Memorandum and Order,[fn]2 the
Employer also raised the additional affirmative defense that the
Maine Labor Relations Board does not have jurisdiction to hear
constitutional claims.  
     The evidentiary hearing was held on January 14, 2009, at the
offices of the Maine Labor Relations Board in Augusta.  The Board
consisted of Barbara Raimondi, Esq., Chair; Carol Gilmore,
Employee Representative; and Karl Dornish, Employer Representa-
tive.  Prior to the start of the hearing, the parties agreed to a
number of stipulations which were later read into the record. 
The Employer formally renewed its motion to dismiss on the
grounds that 1) the issue was amendable to resolution through the
grievance procedure, and 2) the Board has no jurisdiction to hear
First Amendment claims.  The Employer also requested that an
additional hearing day be scheduled and a subpoena be issued for
the attendance of a witness that the Union failed to bring to the
hearing.  We will address all three of these issues in turn.


     The Employer argues that by failing to pursue the remedies
available through the grievance procedure, the Union has waived
all claims for relief and the prohibited practice complaint
should therefore be dismissed.  Section 968(5)(A) of the
Municipal Public Employees Labor Relations Law provides that:

     A. The board is empowered, as provided, to prevent any
     person, any public employer, any public employee, any
     public employee organization or any bargaining agent
     from engaging in any of the prohibited acts enumerated 

     2  This Memorandum and Order was issued on October 29, 2008, by
Peter T. Dawson, Esq., in his capacity as Prehearing Officer.

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     in section 964.  This power shall not be affected by any
     other means of adjustment or prevention that has been or may
     be established by agreement, law or otherwise.

26 M.R.S.A. §968(5)(A)(emphasis added).  Thus, even if the
conduct at issue were subject to the grievance procedure, the
Board's authority to address the prohibited practice complaint is
not affected.  See, e.g., City of Bangor v. MLRB, et al., 658 A.2d 669,
673 (Me. 1995) (Board's ruling not to defer to
arbitrator's decision on issue central to prohibited practice
complaint was within Board's discretion and consistent with
§968(5)(A)); and Minot School Committee v. Minot Education Assoc.
and MLRB, 1998 ME 211, ¶16 ("The effect of subsection 968(5)(A)
is that an arbitration panel's decision on disputed terms and
conditions of employment does not affect the Board's authority to
require a party to cease and desist from committing a prohibited
     The Employer's Motion to Dismiss on the grounds that the
dispute is amenable to resolution through the grievance procedure
is denied.

     The Employer argues that the gist of the case before the
Board is an alleged violation of the First Amendment rights of
various unit employees and that the Board should dismiss the case
because it does not have jurisdiction to address constitutional
issues.  The Union contends that the Board has taken up
constitutional issues in the past when there are prohibited
practices involved, and the Board should do so again now. 
     The jurisdiction of the Maine Labor Relations Board is
limited to that set forth in statute, in this case the Municipal
Public Employees Labor Relations Law.  26 M.R.S.A. §961, et seq. 
Apart from representation and unit determination matters, the
Board's jurisdiction is limited to the prevention of "the 

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prohibited acts enumerated in section 964."  There is nothing in
section 964 or elsewhere in the law that even suggests that the
Board has the authority to decide constitutional matters.  The
Union is correct to point out that the Board has addressed
constitutional issues on occasion, but those instances have been
where the Board discussed constitutional matters in the course of
deciding a prohibited practice complaint.  The Board was not
actually adjudicating the constitutional claim.  For example, in
Teamsters v. Town of Fairfield, the Board noted that it did not
have jurisdiction to hear complaints based on the denial of due
process in discharge proceedings, but the Board stated that it
could draw inferences of pretext from such evidence.  Teamsters
Union Local 340 v. Town of Fairfield, No. 94-01 , at p. 50  
(Dec. 5, 1994).  Similarly, in considering an interference,
restraint and coercion charge, the Board rejected an employer's
defense that coercive statements were protected by the First
Amendment.  AFSCME v. Bangor Water District, No. 80-26 (Dec. 22,
1980) at 11, citing NLRB v. Gissel Packing Co., 395 U.S. 575, 618
     We conclude that to the extent that the Union is asking the
Board to adjudicate a First Amendment claim, the complaint must
be dismissed for lack of jurisdiction.[fn]3  The Board's lack of
jurisdiction to hear the First Amendment issue, however, has no
bearing on the Board's authority to continue with its adjudica-
tion of the interference, restraint, or coercion charge.  For
that reason, there is no basis to dismiss the complaint entirely.
     At this stage in the proceeding, we think it is appropriate
to point out the difference in the legal analysis of a First 

     3  We also note that the Sanford Police Association's complaint
states at paragraph 10 that the Union seeks a ruling from the MLRB on
"the propriety of Chief Connolly's Order."  The Board has no juris-
diction to pass judgment on the "propriety" of a policy or order
independent of an alleged violation of section 964.  The request for
such a ruling is denied.

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Amendment speech claim, and the analysis used for a section
964(1)(A) interference, restraint or coercion charge.  The First
Circuit Court of Appeals recently presented a summary of the
analysis used to assess whether a public employer violates a
public employee's First Amendment rights:
     The court must first determine whether the speech
     involved is entitled to any First Amendment protection
     -- that is, whether the speech is by an employee acting
     as a citizen on a matter of public concern.  If so, the
     court then decides whether the public employer "had an
     adequate justification," to use Garcetti's rephrasing
     of the Pickering test.   
Curran v. Cousins, 509 F.3d 36 (1st Cir., 2007), citing Garcetti
v. Ceballos, 126 S.Ct. 1951, 1958 (2006).  See also Pickering v.
Board of Education, 391 U.S. 563 (1968) and Connick v. Meyers,
461 U.S. 138 (1983).  Thus, the essential issues in a First
Amendment analysis are whether the public employee is speaking as
a public citizen, whether the speech is on a matter of public
concern, and whether the public employer had an adequate
justification for the action interfering with free expression.   
     The legal analysis for whether a public employer's conduct
violates section 964(1)(A) by "interfering with, restraining or
coercing employees in the exercise of the rights guaranteed by
section 963" is entirely different.  As the Board explained,

     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)(quot-
     ing NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948)).  

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Duff v. Town of Houlton, No. 97-20 at 21 (Oct. 19, 1999).  The
Law Court has cited this standard with approval.  See MSEA v.
State Development Office, 499 A.2d 165, 169 (Me. 1985).
     Thus, the issues relevant to a First Amendment claim,
specifically whether the employee is speaking as a citizen,
whether the speech involves a matter of public concern, and
whether the employer was justified in taking the action it did,
are not relevant to the legal analysis required in this
prohibited practice complaint.  

     An additional matter that arose at the hearing was the
Union's decision not to call Sergeant Anderson as a witness. 
Although the Union's submission for the prehearing conference
listed ten (10) witnesses, the Union's legal memorandum submitted
five days before the hearing date stated that only two witnesses
would be called, Sergeant Anderson and the Union steward.  At the
start of the hearing, the Employer objected to the fact that
Sergeant Anderson was not in attendance and asserted that, had
they known that Sergeant Anderson would not be a witness for the
Union, the Employer would have requested a subpoena to compel his
attendance.  The Union's attorney responded that when he spoke
with the sergeant on Monday evening, the sergeant stated that he
did not want to testify.[fn]4  The Union's attorney told the
Board that in light of the sergeant's statement and the circumstances
surrounding the case, the Union had decided to present its case 

     4  We note here for the record two items:  Board Rule Ch. 12,
§10(2) requires each party to list the names of its intended witnesses
in the required submission for the prehearing conference.  Section
10(4) requires a party to notify the Board and the other party at
least 48 hours before the evidentiary hearing if there is any change
in the list of prospective witnesses.  The Union's attorney did not
provide that notification and the Employer's attorney did not list
Sergeant Anderson as an intended witness in its prehearing submis-
sions.  Neither of these rules were specifically discussed at the

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on the basis of the testimony of the Union steward, the chief of
police and the documents in evidence.  The attorney for the
Employer reiterated its objection and requested that an
additional hearing day be scheduled to enable them to call
Sergeant Anderson as a witness.  The Board chair deferred ruling
on the request until the testimony of those witnesses present had
been completed.  
     After the last witness testified, the Employer's attorney 
stated that he would like some time to reflect on the testimony
presented and consult with his client to determine whether to
request a subpoena of Sergeant Anderson.  When asked by the Chair
what would be gained by calling the sergeant as a witness, the
Employer's attorney would only say that the sergeant's behavior
was significant because it precipitated much of what happened. 
After conferring with the other Board members and Board counsel,
the Chair stated that even though the Board did not view the
precipitating events to be relevant to deciding the interference
charge, the Board would give the Employer's attorney 24 hours to
confer with the client and decide whether to request a subpoena
for Sergeant Anderson.  The Chair instructed the Employer's
attorney to get back to Board counsel with his decision.  The
Chair emphasized that the request would be considered in light of
the Board's concerns about the potential relevance or lack of
relevance of the witness.
     The following morning, the Employer's counsel sent an email
to the Board's executive director requesting that the subpoena be
issued.  In this email, counsel requested that an additional
hearing day be scheduled and that a subpoena be issued for
Sergeant Anderson.  He also wrote:

     Sgt. Anderson's testimony is relevant to the case as he
     is the supervisor whose insubordinate behavior contrib-
     uted most significantly to the orders of the police
     chief that are at the heart of this case.  In addition,
     only one witness was presented yesterday to testify 

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     about the alleged affects of the chief's orders on the
     supervisors.  Her testimony identified only one super-
     visor who allegedly has left union meetings because he
     was intimidated by the chief's orders, and that was
     Sgt. Anderson.  Yet Sgt. Anderson himself has not been
     available to be questioned on this issue or on his
     understanding of the chief's orders.  We believe that
     either the Board will have to conclude that the union
     has not presented sufficient reliable evidence of
     adverse affects, or permit us to question Sgt.
     The email was copied to the Union's attorney and to Board
counsel.  The Union's attorney responded with an email stating
that the Union did not object to the Employer calling Sergeant
Anderson as a witness, but the Union did not agree with the
email's factual or legal assertions.
     The Board is not convinced that the testimony the Employer
intends to elicit from Sergeant Anderson regarding the effect of
the Chief's policy will have an impact on the outcome of this
matter.  With the exception of the first sentence of the email,
the testimony sought has to do with the effect of the chief's
orders.  As we noted above, the question in §964(1)(A) cases is
not whether the coercion succeeded or failed but whether it
reasonably tended to interfere with union activities.  Evidence
related to why the chief issued the directive (the "insubordinate
behavior" referred to in the first sentence of the email) may be
relevant in a First Amendment case, but it is not relevant here.
     In spite of our concerns about relevance, we are willing to
issue the subpoena because we are reluctant to say that Sergeant
Anderson's testimony on the effect of the chief's order is so
irrelevant that we should deny the Employer the opportunity to
present that evidence.  We must emphasize that the effect of this
Interim Order is that the substance of the case has been narrowed
considerably:  The First Amendment claim has been dismissed and
all that remains is the interference, restraint, and coercion
charge.  The Board will not permit questions to or entertain any 

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testimony from Sergeant Anderson regarding events that led to the
chief's issuance of the order or that are not related to whether
the order interfered with union activity.
     Our Board members are available on Monday, February 9th, and
Wednesday, February 11th, to hold a hearing for the purpose of
receiving testimony from Sergeant Anderson.  It is the Board's
position that the hearing must be held on one of these two days
if at all possible because shortly thereafter one of the Board's
members will be leaving the state for a number of weeks.  The
Board is not comfortable leaving this matter unresolved for an
extended period of time.  The parties are therefore respectfully
asked to make whatever re-arrangements might be required in order
to accommodate this order.  Board staff will contact the parties
to confirm a date and time.  We will issue the subpoena as soon
as the date is set. 
     This Interim Order and Ruling on the Request for a Subpoena
has been reviewed by the full Board and is the unanimous opinion
of the Maine Labor Relations Board.

Dated at Augusta, Maine, this 28th day of January, 2009.

                                MAINE LABOR RELATIONS BOARD

                                Barbara L. Raimondi, Esq.

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