STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 13-15
Issued: October 31, 2013

MAINE STATE LAW ENFORCEMENT
ASSOCIATION and
TIMOTHY MCLAUGHLIN,
Complainants,

v.

STATE OF MAINE, MAINE
DEPARTMENT OF CORRECTIONS,
Respondent.

 

DECISION ON APPEAL OF
EXECUTIVE DIRECTOR'S
DISMISSAL OF COMPLAINT

 

   On June 3, 2013, the Maine State Law Enforcement Association 
(“MSLEA”) and Timothy McLaughlin filed a prohibited practice 
complaint naming the State of Maine (“the Employer”) as the 
Respondent.  The Complaint asserts that the Employer violated 
four distinct provisions of the State Employees Labor Relations 
Act (SELRA) when the Commissioner of the Maine Department of 
Corrections terminated Mr. McLaughlin’s employment as a Probation 
Officer on December 17, 2012. 
    
  Title 26 M.R.S.A.  979-H(2) requires the Board’s Executive
Director “to review the charge to determine whether the facts as 
alleged may constitute a prohibited act.”  In accordance with 
Chapter 12,  8 of the Board’s Rules, the Executive Director gave
the State the opportunity to submit written argument on the 
sufficiency of the Complaint.  The State submitted a memorandum 
of law and a Motion to Dismiss [fn1] on June 13, 2013.  The Complain-
ants filed a response to the State’s Motion with argument on  
     
 ___________________
 1 The State's Motion is presented as a "Motion for A Ruling on Suffi-
ciency", but it is really a motion to dimiss for failure to state a
violation of the law as required by 26 MRSA  979-H(2).
     
  [end of page 1]
     
June 28, 2013, and included two documents:  an arbitration 
decision dated October 15, 2012, regarding Complainant McLaugh-
lin’s grievance over discipline imposed on January 13, 2011, and 
the Commissioner’s letter, dated December 17, 2012, terminating 
McLaughlin’s employment.   

   On July 26, 2013, the Executive Director issued a detailed  
ruling on the sufficiency of the Complaint in which he made a 
preliminary determination that the facts as alleged would not 
constitute a violation of the Act.  The Executive Director 
offered the Complainants the opportunity to amend the complaint 
to cure the specified insufficiencies.  The Complainants respond-
ed on August 6, 2013, stating that they would not provide any 
amendments to the allegations because “there were no deficiencies 
to be cured.”  The Complainants requested that the Executive 
Director issue his final ruling so that the matter could be 
appealed to the Board.  The Executive Director issued his final 
ruling on August 8, 2013, and the Complainants filed a timely
appeal on August 22, 2013.

				DISCUSSION
 
   MLRB Rule Chapter 12,  8(3) establishes the procedure for 
appeal to the Board when the Executive Director dismisses a 
complaint because the factual allegations in the complaint do 
not, as a matter of law, constitute a violation of the Act.  The 
rule states, in relevant part:
  
	  The motion [of appeal to the Board] must clearly and 
    concisely set forth the points of fact and law claimed 
    to be sufficient to establish a prima facie violation 
    of the applicable prohibited act provision(s). Upon the 
    filing of a timely motion for review, the Board shall 
    examine the complaint as it existed when summarily dis-
    missed in light of the assertions contained in the mo-
    tion. If upon such examination the Board finds the com-
        
 [end of page 2]
    
    plaint insufficient, it shall affirm the summary dis-
    missal of the charge and shall notify the parties in 
    writing of the determination. If the Board finds the 
    complaint to be sufficient, it shall reinstate the com-
    plaint and shall so notify the parties.

   The requirement that “the Board shall examine the complaint as it 
existed when summarily dismissed” means that the Board cannot 
consider any new factual assertions made in written argument to 
the Board on appeal.  See William D. Neily v. State of Maine, No. 
06-13 at 6, n. 3 (May 11, 2006)(Board precluded from considering 
facts first alleged in appeal of dismissal to Board) and MSAD #46 
Educ. Assoc/MEA v. MSAD #46 Board of Dir., No. 02-13 at 5, n. 3 
(Nov. 27, 2002)(same).  Similarly, the rule’s statement that the 
motion of appeal to the Board “must clearly and concisely set 
forth the points of fact and law claimed to be sufficient” is not 
license to present new facts, but merely an opportunity to 
describe how the facts alleged in the complaint would be a 
violation of the law.  See, e,g., Portland Prof’l and Technical 
City Employees Assoc./MTA v. City of Portland, No. 93-36 at 4 
(Nov. 3, 1993)(reviewing alleged facts in light of argument 
employing a continuing violation theory).  Finally, the rule’s 
directive that the Board “examine the complaint as it existed 
when summarily dismissed” also means that the Board must make its 
own determination on the sufficiency of the complaint, rather 
than simply reviewing the Executive Director’s decision.  MSEA v. 
State of Maine, Dept. of Public Safety, No. 09-13 at 2 (Aug. 21, 
2009).
 	 
   Whether it is the Executive Director ruling on the suffi-
ciency of a complaint or the Board deciding the matter on appeal, 
the standard employed is the same.  The Act requires the dismis-
sal of a prohibited practice complaint if the facts as alleged 
"do not, as a matter of law, constitute a violation."  26 
    
 [end of page 3]
    
M.R.S.A.  979-H(2).  Both the Executive Director and the Board 
must treat the material allegations of the complaint as true and 
must consider the complaint in the light most favorable to the 
complainant to determine whether the alleged facts may constitute 
a violation of the Act.  MSAD #46 Educ. Assoc. No. 02-13 at 5 
(interpreting 26 M.R.S.A.  968(5)(B), the comparable provision of 
the Municipal Public Employees Labor Relations Law).  When the 
allegations in the complaint are more than simply factual allega-
tions but are legal conclusions, however, the Board is not bound 
to accept those legal conclusions as true.  Id. at 5, citing 
Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994).  See also Neily v. 
State of Maine, No. 06-13 at 6.


 1.	The Factual Allegations And Charges In The Complaint
 
   The Complaint alleges that Mr. McLaughlin was suspended for 
30 work days in January of 2011; that the Union took his griev-
ance to arbitration; that the arbitration decision of October 15, 
2012, upheld his suspension; and that the Employer’s termination 
of his employment on December 17, 2012, was retaliation for 
exercising his right to participate in arbitration.  The Com-
plaint also alleges, “The facts and circumstances which form 
the basis for Commissioner Ponte’s decision to terminate McLaughlin 
on December 17, 2012 are identical to facts and circumstances 
which form the basis of the Arbitration Decision to uphold the 
thirty work day suspension dated October 15, 2012.” [fn 2]  The Com-
plaint alleges that the termination decision was “not based upon 
a new fact” and that the “Giglio” issue had been known since the 
suspension in 2011.  The Complaint also alleges that the “Giglio” 
issue was a pretext for imposing additional discipline for the 
same conduct that resulted in the suspension, which the Complaint 
    
 ________________________
 2 The "facts and circumstances" that are identical are not identified.
    
 [end of page 4]
    
alleges is a unilateral change in working conditions.
 
   Neither the arbitration decision of October 15, 2012, nor 
the termination letter of December 17, 2012, were submitted with 
the Complaint.  The Complainants later attached both documents as 
exhibits to their Response to the State’s Motion to Dismiss.  The 
Executive Director relied on these documents in concluding that 
the Complaint was insufficient.  On appeal, the Complainants 
argue that the Executive Director improperly relied on facts and 
information “not in the record at this point” when concluding 
that the Complaint did not allege a violation of the Act. 
 
   Under normal circumstances, a motion to dismiss for failure 
to state a claim must be evaluated on the basis of the complaint 
alone.  The Board’s rules require that the complaint include a 
“concise statement of the facts constituting the complaint” and a 
copy of the collective bargaining agreement. See MLRB Rules, Ch. 
12  5.[fn3]   When a complainant has attached an additional document 
to the complaint, such an attachment will generally be considered 
if it aids in understanding the allegations in the complaint. [fn4]  
Attachments may not be used as a substitute for the specific 
allegations of fact required in the complaint.  See MSEA v. State 
of Maine, No. 12-17 at 9, Interim Order on Appeal of Executive 
    
 __________________
3. Sub-  3 requires a copy of any existing bargaining agreement related
to the unit involved in the complaint and sub-  4 requires:
    A clear and concise statement of the facts constituting the 
    complaint, including the date and place of occurrence of each 
    particular act alleged, names of persons who allegedly
    participated in or witnessed the act, and the sections, in-
    cluding subsections(s), of the labor relations statutes al-
    leged to have been violated.  The complaint must consist of 
    separate numbered paragraphs with each paragraph setting
    out a separate factual allegation.
     
4. Similarly, the requirement of providing a copy of the collective
bargaining agreement with the complaint enables the Board to identify
the bargaining unit and determine certain potential issues such as 
standing and waiver.
     
  [end of page 5]
     
Director’s Dismissal, (Aug. 6, 2012)(statements in complaint that 
did not allege any facts but merely referred to attached affida-
vits were improper), citing Aline Dupont v. MSEA, No. 11-05 at 5 
n.3 (March 27, 2012).  In Geroux v. City of Old Town, however, 
the Board held that exhibits attached to a complaint were “an 
integral part of the complaint” where several of the allegations 
referred to and were based on the exhibits.  Bruce J. Geroux v. 
City of Old Town, No. 84-24 at 4 (June 18, 1984).  In that case, 
the Board dismissed the case after concluding the complaint had 
not been properly served because the exhibits were not included 
with the copy of the complaint served on the respondent. Id.
 
   In this case, the two documents were not supplied with the
Complaint but were provided as exhibits to Complainants’ response 
to the motion to dismiss.  The State did not object to the 
submission or contest the authenticity of the documents.  Not 
only do several of the allegations in the Complaint refer to the 
documents, specifically  9,  11,  13,  14,  15 and  16, the 
substance of the two documents is central to the Complaint.  
 
   In light of the Board precedent, the relevance of the two 
documents, and the specific circumstances of this case, we 
conclude that it is appropriate to consider the two documents in 
ruling on the motion to dismiss.  We hold that during considera-
tion of a motion to dismiss, the Board and the Executive Director 
may consider documents supplied by either party that are not part 
of the complaint if the authenticity of the documents is not 
challenged and the documents are central to the complaint or are 
referred to in the complaint.  We note that this approach is 
consistent with the Law Court’s analysis of whether materials 
outside the pleadings can be considered on a motion to dismiss.  
See Moody v. State Liquor and Lottery Commission, 2004 ME 20, 
 11, 843 A.2d 43, 47.  Moody was a case involving an alleged 
    
 [end of page 6]
    
breach of contract based on the terms on the front of a scratch 
lottery ticket.  The Law Court ruled that the Superior Court 
properly considered the front and back portions of the un-
scratched lottery ticket supplied by the State with its motion to 
dismiss because “documents that contain the terms of the contract 
are central to Moody’s [breach of contract] claim.” 2004 ME 20, 
 12, citing Alternative Energy Inc. v. St. Paul Fire & Marine 
Ins. Co., 467 F.3d. 30, 33 (1st Cir. 2001)(finding it was appro-
priate for court to review settlement agreement attached to the 
motion to dismiss, as complaint’s allegations referred to and 
were dependent on terms of the settlement agreement.)  The Law 
Court adopted the rationale of the Third Circuit Court of Appeals 
“that if courts could not consider these documents, ‘a plaintiff 
with a legally deficient claim could survive a motion to dismiss 
simply by failing to attach a dispositive document on which it 
relied.’” Moody, 2004 ME 20 at  10, quoting Pension Benefit Guar. 
Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3rd Cir. 
1993) (holding that purchase and sale agreement could be reviewed 
on motion to dismiss when complaint was based on and referred to 
the agreement.)  For these reasons, we will consider the October 
15, 2012, arbitration decision and December 17, 2012, letter of 
termination as they relate to the Complaint and the motion to 
dismiss. 
	 	
   The Complainants assert that the allegations of fact consti-
tute four distinct violations of the Act.  Count I is an inter-
ference, restraint and coercion charge in violation of  979-
C(1)(A); Counts II and III are discrimination charges, one in 
violation of  979-C(1)(B) and the other in violation of  979-
C(1)(D); and Count IV is a unilateral change charge in violation 
of  979-C(1)(E).  The interference, restraint and coercion charge 
is best addressed after we have considered the other charges.
   
 [end of page 7]

	 979-C(1)(B): Discrimination to discourage union membership.
  
   Section 979-C(1)(B) prohibits an employer from ”encourag-
ing or discouraging membership in any employee organization by 
discrimination in regard to hire or tenure of employment or any 
term or condition of employment.”  Count II of the Complaint 
charges that the Employer violated  979-C(1)(B) by discriminating 
against McLaughlin “in regards to his terms and conditions of 
employment because he engaged in activities protected by the 
Agreement and the State Employees Labor Relations Act with the 
purposes of discouraging membership in the union.”  

   To survive a motion to dismiss, the Complainant must 
allege facts which set forth the three elements necessary to show 
a (1)(B) violation.  A discrimination claim requires an allega-
tion that the complainant (1) engaged in protected activity;   
(2) the decision-makers knew of complainant's participation in 
the protected activity; and (3) there is a causal connection 
between the protected activity and the employer's adverse employ-
ment action.  See, e.g., MSEA v. Maine Turnpike Authority, 12-08 
at 19, (Feb. 12, 2013); Litchfield Educational Support Personnel 
Assoc. v. Litchfield School Committee, No. 97-09 at 22 (July 13, 
1998); and Casey v. Mountain Valley Educ. Assoc. and School 
Admin. Dist. #43, Nos. 96-26 & 97-03, at 27-28 (Oct. 30, 1997). 
 
	With respect to the first two elements, the facts allege 
that Mr. McLaughlin and his Union submitted a grievance contest-
ing his suspension and pursued that grievance through arbitra-
tion.  Participation in the grievance procedure is generally 
considered protected activity.  See Alfred Hendsbee and Maine 
State Troopers Assoc. v. Dept. of Public Safety, Maine State 
Police, No. 89-11 (Jan. 16, 1990)(State’s referral of grievances 
to internal affairs for investigation is inconsistent with Act’s 
    
 [end of page 8]
    
guarantee of the free exercise of the right to participate in 
union activities.)  The allegation that McLaughlin’s grievance 
proceeded through arbitration indicates that the second element 
was properly alleged, that is, that the Employer knew that 
McLaughlin engaged in the protected activity.  The third element, 
a causal connection between the protected activity and the 
adverse employment action (in this case, the discharge), requires 
more scrutiny.
 
	Paragraph 15 of the Complaint alleges that the termination 
decision was “not based upon a new fact.”  Paragraph 11 further 
alleges that the “facts and circumstances which form the basis of 
[the] decision to terminate McLaughlin on December 17, 2012 are 
identical to the facts and circumstances which form the basis of 
the Arbitration decision to uphold the thirty work day suspension 
on October 15, 2012.”  In written argument to the Executive 
Director on the State’s motion to dismiss, Complainants argue, 
“The only new fact that could form the basis of the termination 
is McLaughlin’s participation in the arbitration process.” (Brief 
to Ex. Dir. at 5).  
 
	On its face, the Complaint alleges facts which, when read 
in a light most favorable to the Complainants, allege a causal 
connection.  While a coincidence in time between the protected 
activity and the adverse employment action is generally not 
sufficient on its own to prove causation, it may be enough to
survive a motion to dismiss.  MSEA v. State Development Office, 
No. 84-21 at 11, (July 6, 1984), aff'd, 499 A.2d 165 (Me. 1985) 
(the fact that the adverse action happened to coincide with the 
employee's protected activity does not, without more, establish a 
prima facie case of discrimination).  Causal connection can be 
proved through direct evidence, such as comments threatening 
adverse action.  See Susan Ouellette v. City of Caribou, No. 99-
    
 [end of page 9]
    
17 at 13 (Nov. 22, 1999)(Police Chief agreed to terminate employ-
ee because she had gone to the "wrong people" and got "bad 
advice” after he warned her not to).  More typically, however, a 
causal connection is proved through circumstantial evidence, such 
as evidence of anti-union animus, disparate treatment, or incon-
sistent or less-than-credible explanations for the action.  See 
Teamsters v. Baker Bus Service, Inc., No. 79-70 (March 3, 1980), 
aff’d Baker Bus Service v. Edward H. Keith, et al., 428 A2d. 55 
(Me. 1980) (finding causal connection based on general anti-union 
animus, post-discharge comments, the unreasonableness of dis-
charge as penalty for minor infraction, and inconsistent or 
spurious explanations for discharge); and Dana Duff v. Town of 
Houlton and Houlton Police Dept., No. 97-20 & 97-21 at 38 (Febru-
ary 24, 1998)(finding causal connection where Police Chief skewed 
evaluation scores of promotion candidates to defeat the chances
of union activists).
 
	In written argument to the Executive Director, the Complain-
ants’ argument of causal connection is more explicit than in the 
Complaint itself.  The Complainants assert, “The December 17, 
2012 letter does not allege any new facts that form the basis of 
[McLaughlin’s] termination [and that] the only new fact or 
occurrence was the issuance of the arbitration decision.” (Brief 
to Ex. Dir. at 6.)  The Complainants also repeat the argument 
made in the Complaint that the facts and circumstances forming 
the basis of the arbitrator’s decision are identical to the facts 
and circumstances of the termination. (Brief at 2)  We note that 
the Complaint does not give any indication of what those “identi-
cal facts” are.
  
	The termination letter and the arbitration decision make it 
abundantly clear that the factual allegations in the Complaint 
that purport to establish causal connection between the termina-
    
  [end of page 10]
    
    
tion and McLaughlin’s participation in arbitration are simply not 
accurate.  Contrary to the Complainants’ assertion, the termina-
tion letter does, in fact, refer to new facts that the State 
contended led to the decision to discharge McLaughlin.  Those new 
facts were the consequences of the arbitrators’ findings regard-
ing McLaughlin’s credibility:  the District Attorneys’ decision 
not to use McLaughlin as a witness and the resulting impact on 
McLaughlin’s ability to perform his job.  
	 
	The Arbitration decision upheld the suspension given in ear-
ly 2011, concluding that the discipline was warranted.  Part of 
the arbitrator’s reasoning was McLaughlin’s lack of credibility 
as a witness in the arbitration hearing regarding the events that 
led to the suspension.  Indeed, the arbitrator made some very 
explicit comments in the arbitration decision about the individu-
al complainant’s credibility.  

	The Employer’s termination letter stated quite clearly that 
McLaughlin was being terminated because the State’s seven Dis-
trict Attorneys had asserted that, based on the arbitration 
decision, they would not use him as a witness because he was 
“Giglio impaired.”  Giglio is the United States Supreme Court 
decision requiring prosecutors to provide potential impeachment 
evidence to the defense where the credibility of a witness will 
likely be key to the outcome of the case.[fn5] Here, the arbitration 
award was potential impeachment evidence if McLaughlin were 
called as a witness for the prosecution.  The impact of the 
arbitrator’s conclusions that McLaughlin was untruthful was the 
    
  __________________
  5 Giglio v. United States, 405 U.S. 150, 154 (1972)(exculpatory
evidence includes evidence affecting witness credibility, where that
witness' reliability is likely to determine guild or innocence). A
"Giglio-impaired" agent is one where potential impeachment evidence
would make that agent's testimony of little value in a case.
    
  [end of page 11]
    
        
stated basis for the Employer’s decision. 
 
	The allegation of fact in the Complaint that there was “no 
new fact” between the arbitration decision and the discharge and 
the allegation that the two events were based on identical facts 
and circumstances are directly contradicted by the termination 
letter and the arbitration decision.  We conclude that a causal 
connection dependent on an assertion of “no new fact” is not 
viable in light of the termination letter and the arbitration 
decision. [fn 6]
	 
	It is important to note that there are no allegations in the 
Complaint that the Employer’s statements in the termination 
letter were not true, nor are there other facts alleged that 
would bring into question the veracity of the contents of that
letter or that suggest the State did not really terminate 
McLaughlin for the reasons stated in the letter.  Similarly, 
there is nothing in the Complaint disputing the substance of the 
arbitration decision.  In his preliminary ruling dismissing the 
Complaint, the Executive Director considered the substance of 
both of the documents and gave the Complainants ample opportunity 
to amend the Complaint.  The Complainants chose not to offer any 
amendments, merely stating that “there were no deficiencies to be 
cured.” (Complainants’ Letter to Executive Director of August 6, 
2013.)
   
	The Complainants could have used the opportunity granted by 
the Executive Director to amend the Complaint to elaborate on the 
circumstances believed to have surrounded the discharge.  In its 
appeal to the Board, the Complainants argue, 
        
   ___________________
   6 We need not make a factual or legal conclusion that the reason
asserted in the letter was the reason for the discharge; we simply
conclude that the allegation of "no new fact" serving as the basis for 
the discharge cannot be used to allege a causal connection.
    
  [end of page 12]
    
	 Neither the Board nor the Complainant knows what was 
   said to the district attorneys, what background infor-
   mation they were given, or what they actually said in 
   response to the information they were given. 

	Brief in Opposition to Motion to Dismiss, at 3.  If the nature of 
the exchanges between the Employer and the district attorneys was 
intended to be the basis of the alleged discriminatory conduct, 
the Complainant should have made such an allegation in the 
Complaint.  There are no factual allegations in the Complaint 
regarding the Employer’s interaction with the district attorneys 
about McLaughlin or the arbitration decision, or any other 
allegation that might support a causal connection between the 
protected activity and the discharge.
   
	A claim that more information will become evident at the 
hearing is not a suitable basis for finding an insufficient 
complaint sufficient.  The Board specifically rejected this 
argument in MSAD #46 Educ. Assoc. v. MSAD #46, responding to the 
complainant’s assertion that if the statements alleged in the 
complaint did not on their face constitute a violation, a hearing 
should be held to “establish the context of the statements to 
demonstrate their threatening and retaliatory nature.”  The Board 
stated, 

 	  It is not enough to make an assertion that additional facts 
    to be proved at hearing will support a claim.  The complaint 
    must allege facts which state a claim for relief.  While we 
    do not demand excruciating detail or the use of any 
    particular magic words, there must be at least a general 
    statement of facts which, if true, would entitle the 
    complainant to relief.

MSAD #46 Educ. Assoc. v. MSAD #46, No. 02-09 at 10 (July 23, 
2003).
 
	Paragraph 14 of the Complaint asserts, in a conclusory man- 
ner, that the State’s rational of the “Giglio issue” to support 
    
  [end of page 13]
    
the termination on December 17, 2012, “is a pretext.”  A pretext 
is an excuse put forward to conceal an illegal act.  As explained 
above, however, the Board is not bound to accept legal conclu-
sions, such as this, that are unsupported by any factual allega-
tions.  There are no allegations in the Complaint that dispute 
the validity of the statements made in the termination letter or 
the accuracy of the references to the arbitrator’s decision.  
Thus, there are no factual allegations suggesting the State’s 
articulated reason for the termination was, in fact, pretext.  
 
	While the Complainant alleges that “the Giglio issue” was a 
pretext for the December 17, 2012 termination, the Complaint does 
not state what is meant by “the Giglio issue”.  In a separate 
paragraph, however, the Complaint alleges that “the ‘Giglio’ 
issue had been known to the State since the date when McLaughlin 
was first suspended without pay on January 13, 2011”.  The 
arbitration decision indicates that the notice of suspension from 
the Associate Commissioner cited McLaughlin’s “lack of forth-
rightness” during the investigation of his misconduct as a 
primary reason for imposing such a long suspension.  Arb. Deci-
sion at 23.  The allegations in  14 and  15 imply that the 
“Giglio issue” was a general issue of honesty.  
 
	There is nothing in the December 17, 2012, termination let-
ter suggesting the presence of a Giglio impairment pre-dating the 
arbitration decision.  Rather, the letter clearly states that the 
basis for the discharge was the district attorneys’ response to 
the arbitrator’s conclusion about McLaughlin’s credibility.  
Again, the letter not only disproves the Complainant’s assertion 
that there was “no new fact” supporting his termination, it also 
disproves the assertion that the “Giglio issue” was not a new 
issue. 
    
   [end of page 14]

	We conclude that the only factual allegations in the Com-
plaint that could be read to allege a causal connection are 
directly contradicted by the information in the termination 
letter and the arbitration decision.  We therefore hold that the 
Complaint fails to allege the necessary third element of a  979-
D(1)(B) charge:  a causal connection between the protected 
activity and the discharge.  As the facts as alleged do not, as a 
matter of law, constitute a violation, we must dismiss Count II 
of the Complaint. 

	 979-C(1)(D): Discrimination because of testimony under Act. 
  
	The Complainants assert in Count III that the Employer 
“discharged and otherwise discriminated against Mr. McLaughlin 
because he signed or filed an affidavit, petition or complaint 
and gave information and testimony under this chapter in viola-
tion of 26 M.R.S.A.  979-C(1)(D).”  In the memorandum of appeal 
to the Board, the Complainants assert that participation in the 
grievance procedure is protected activity “under this chapter,” 
that Mr. McLaughlin was discharged as a result of his participa-
tion in the grievance process, and therefore the discharge is a 
violation of  979-D(1)(D). 

	Complainant misconstrues the scope of the protection 
provided by  979-D(1)(D).  The Board’s case law makes it clear 
that this provision protects against discrimination for partici-
pation in a proceeding of the Maine Labor Relations Board, just 
as the comparable provision in the National Labor Relations Act 
protects employees involved in a proceeding of the National Labor
   
  _____________________
  7 26 M.R.S.A.  979-D(1)(D) prohibits a public employer from:
    	
    Discharging or otherwise discriminating against an employee be-
    cause he has signed of filed any affidavit, petition or complaint
    or given any information or testimony under this chapter.
   
  [end of page 15]
    
    
Relations Board.  As early as 1982, this Board turned to federal 
case law when it held that “Section 964(1)(D) protects employees 
involved in any stage of a Labor Relations Board proceeding from 
a wide variety of discriminatory actions by the employer.” 
Southern Aroostook Teachers Assoc. v. Southern Aroostook Communi-
ty School Committee, No. 80-35 and 80-40 at 24 (April 14, 1982), 
citing NLRB v. Scrivener, 405 U.S. 117, 121-125 (1972)(discharge 
of employees giving sworn statements to National Labor Relations 
Board field examiner a violation of 29 U.S.C.  158(a)(4)).  See 
also Bruce J. Geroux v. City of Old Town, No. 84-24 at 5 (June 
18, 1984)(citing Southern Aroostook when dismissing charge 
because “nothing in the complaint suggests that Geroux was 
involved in a Labor Relations Board proceeding at the time the 
alleged unfair labor practice occurred, nor is there an allega-
tion that the City took any discriminatory action against him.”) 
See also Teamsters v. Town of Winthrop and Charles H. Jackson, 
Police Chief, No. 84-06 at 5-6 and 15-16.(Nov. 16, 1984) (protec-
tion of (1)(D) applies to testimony at Board proceeding), aff'd 
Inhabitants of the Town of Winthrop and Charles Jackson, Police 
Chief v. MLRB and Teamsters, CV-84-538 (July 11, 1985).

	We hold that Count III of the Complaint, charging a viola-
tion of  979-C(1)(D), must be dismissed because grievance arbi-
tration is not a labor board proceeding.   Grievance arbitration
is a right that derives from the parties’ collective bargaining 
agreement, not “this chapter,” that is, the State Employees Labor 
Relations Law.  Adopting the Complainants’ position would be
  
  ___________________
  8 We note a slight blip in our case law where the Board, in dicta,
 incorrectly asserted that  979-C(1)(D) applies to grievance pro-
 cessing, not just labor board proceedings.  Buzzell, Wasson and MSEA
 v. State of Maine, No. 96-14, at 14 (Sept. 22, 1997).  The Buzzell 
 Board cites a statement in Sewall v. Portland Water District as
 support for this proposition, but Sewall was a (1)(A) case, not a
 (1)(D) case.
     
inconsistent with this Board’s specific precedent cited above, 
the persuasive authority of NLRB law when the provisions at issue 
are equivalent provisions, and the extensive legislative history 
described by the U.S. Supreme Court in Scrivener demonstrating 
that the provision protects a activities related to a labor board 
proceeding. NLRB v. Scrivener, 405 U.S., at 121-126.

   979-C(1)(E):  The Unilateral Change Charge 
 
	Count IV of the Complaint alleges that the State unilateral-
ly changed the working conditions of the members of the bargain-
ing unit thereby breaching the statutory duty to bargain and 
violating  979-C(1)(E).  The specific allegation is that the 
State disregarded the binding nature of the arbitration decision 
concerning McLaughlin’s suspension and imposed the additional 
discipline of discharge for the same facts that led to his 
suspension.  The Complainants assert that the State was punishing 
McLaughlin a second time for the same facts that led to the 
suspension, citing the arbitrator’s finding that the recommenda-
tion discipline of termination had been considered and changed to 
a suspension by management on review.  Brief to Ex. Dir. at 3, 8.  
As we noted earlier, the Complainants’ assertion that the suspen-
sion and the discharge were based on the same facts is disproved 
by the documents submitted by the Complainants.  
    
   ________________________________
   9 In State of Maine, Bureau of Alcoholic Beverages v. MLRB and MSEA, the 
   Law Court stated,
    
  	In apply the terms of our state labor relations laws,
      this court has previously found "persuasive" the construc-
      tion placed on the National Labor Relations Act by federal
      courts, Churchill v. School Administrative Dist. No. 49
      Teachers Ass'n, Me., 380 A.2d 186, 192 (1977); Lewiston
      Firefighters Ass'n v. City of Lewiston, Me., 354 A.2d 154,
      164 (1976), particularly where provisions of the state law
      analogous to those of the federal law were involved, Caribou
      School Dept. v.Caribou Teachers Ass'n, Me., 402 A.2d 1279,
      1283 (1979).
            
  [end of page 17]
 
	Even if the discharge was based on the prior conduct, it 
does not mean the Complaint alleges a unilateral change viola-
tion.  There are no facts suggesting anything more than a poten-
tial grievance.  The Board has repeatedly noted that a contract 
violation should be addressed through the parties’ grievance 
procedure:

  	As we have stated, "[a] contract violation, by it-
    self, is not a prohibited practice over which the 
    Board has jurisdiction."  Langley v. State of 
    Maine, Dept. of Transportation, No. 00-14, at 4 
    (March 29, 2002).  This Board does not have juris-
    diction to hear grievances, so we must be careful 
    not to interpret "unilateral change" so broadly as 
    to expand our jurisdiction into areas beyond our 
    statutory authority.  See State of Maine v. MSEA, 
    499 A.2d 1228, 1239 (Oct. 29, 1985) (The MLRB has 
    jurisdiction over prohibited practices complaints,
    but not over grievances.)  

William D. Neily v. State of Maine, 06-13 at 14 (May 11, 2006).
 
	Finally, the unilateral change charge does not allege a 
violation of the law because the current collective bargaining 
agreement contains a very broad “zipper clause” that precludes 
either party from demanding bargaining over matters that are 
covered by the agreement or could have been covered by the 
agreement.  Any alleged changes to the agreed-upon arbitration 
procedure or charges of unjust discharge should be addressed 
through the grievance arbitration procedure.  See State of Maine 
v. MSEA, 499 A.2d 1228, 1230 (Me. 1985).  Count IV of the Com-
plaint must be dismissed because the facts alleged do not, as a 
matter of law, constitute a violation of alleging a violation of 
 979-D(1)(E).
    
  ________________________
  9. cont'd.  413 A.2d 510, 514 (Me. 1980).
    
  [end of page 18
    

  979-C(1)(A):  The Interference, Restraint or Coercion Charge 
 
	Count I charges that the Employer interfered with, re-
strained or coerced McLaughlin and the MSLEA members in the 
exercise of the rights protected by  979-B of the Act in viola-
tion of  979-C(1)(A).
 
	The established test of an interference, restraint, and co-
ercion charge under  979-C(1)(A) is whether the employer has 
engaged in conduct which reasonably tends to interfere with the 
free exercise of employee rights under the Act.  See, e.g., 
Teamsters v. Town of Oakland, No. 78-30 at 3 (Aug. 24, 1978), 
MSEA v. Dept. of Human Services, No. 81-35 at 4-5 (June 26, 
1981).  As the Complainants have not alleged a causal connection 
between the protected activity and the discharge of McLaughlin, 
and no other facts were alleged that would constitute an inter-
ference violation, this count must be dismissed as well.  It 
cannot reasonably be said that employees with knowledge of the 
facts as alleged, including the absence of a causal connection, 
would be interfered with, restrained, or coerced in asserting any 
rights guaranteed by the Act. See, MSEA v. State Development 
Office, 499 A.2d 165, 169 (Me. 1985). 

				SUMMARY
	
   We have reviewed the Complaint and the two documents provid-
ed by the Complainants and conclude that the facts as alleged do 
not, as a matter of law, constitute a violation of the State 
Employees Labor Relations Act. 

				ORDER

   On the basis of the foregoing findings of fact and by virtue 
    
    
   [end of page 19]
    
of and pursuant to the provisions of the powers granted to the 
Maine Labor Relations Board by the provisions of 26 M.R.S.A. 
 979-H(2) it is hereby ORDERED:

 
	That the prohibited practices complaint, filed by 
  the Maine State Law Enforcement Association and 
  Timothy McLaughlin on June 13, 2013, in case No. 
  13-15, is dismissed.

 
	Dated at Augusta, Maine this 31st day of October, 2013.

 

The parties are advised of their right pursuant to 26 M.R.S.A. §968(5)(F) to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80C of the Rules of Civil Procedure within 15 days of the date of this decision.

MAINE LABOR RELATIONS BOARD

[signed] Katharine I. Rand

Chair

[signed]Patricia M. Dunn

Employer Representative

[signed]Wayne W. Whitney

Employee Representative