STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                      Case No. 79-19 and 79-11

OF MAINE,                        )
                   Complainant,  )
  v.                             )                   DECISION AND ORDER
BOARD OF SELECTMEN,              )
                   Respondents.  )

     The Teamsters Local Union No. 48, State, County, Municipal and University
Workers in the State of Maine ("Local 48") filed the prohibited practice
complaint in this case on September 18, 1978.  The Town of Jay, Maine and its
Board of Selectmen ("Town" or "Selectmen") filed its response on October 4,

     A pre-hearing conference was held on October 4, 1978 with Alternate
Chairman Donald W. Webber presiding.  Alternate Chairman Webber subsequently
issued a Pre-Hearing Conference Memorandum and Order on October 10, 1978, the
contents of which are incorporated herein by reference.

     The matter was heard by the Maine Labor Relations Board ("Board") on
November 30, 1978, Alternate Chairman Webber presiding, with Michael
Schoonjans, Employee Representative, and Henry W. Mertens, Alternate Employer
Representative.  The complaint in Case No. 79-11 was withdrawn at the hearing.
The parties filed post-hearing briefs and the Board proceeded to deliberate
on the case.


     No party has challenged the jurisdiction of the Board and we conclude
that the Board has jurisdiction to hear and render a decision as provided in
26 M.R.S.A.  968(5).

                               FINDINGS OF FACT

     From the entire record in this case, the contentions of the parties, and
from the observation of the witnesses and their demeanor, the Board finds

     1.  Complainant Local 48 is the certified bargaining agent for a unit
         consisting of Town Public Works employees and was certified on
         December 29, 1977.  26 M.R.S.A.  962(2).  Respondent Town is a
         public employer.  26 M.R.S.A.  962(7).


     2.  At one time AFSCME was the bargaining agent, but it was
         decertified.  Thereafter an entity calling itself "The
         Jay Highway Department Association" ("Association") ne-
         gotiated an agreement with the Town covering terms and
         conditions of employment.  This agreement by its terms
         was "effective as of the 9th day of March, 1976 . . .
         until the 14th day of March, 1977."  This agreement also
         included language concerning its automatic renewal.

     3.  The Town considered itself bound by this agreement at the
         time it discharged Richard Greenleaf.  The Town also
         claimed that it followed the provisions of the agreement
         in the discharge.

     4.  Richard Greenleaf was hired by the Town in September, 1963,
         starting as a laborer/truck driver, serving later as a
         heavy equipment operator.  Until the discharge on September 1,
         1978, he had never been disciplined by so much as an oral
         warning for any reason.

     5.  Greenleaf had organized for AFSCME and was on its negotiation
         team.  After the decertification, he was the spokesman and
         chief negotiator for the Association.  He was the only signatory
         on the written agreement on behalf of the Association.  There-
         after, when he became disenchanted with the ability of the
         Association to obtain sick leave benefits from the Town, he
         determined that he would organize a unit for Local 48 and told
         the Selectmen that this was his intention.  In short, he was
         the most active employee in the unit and a leader in exercising
         rights protected by 26 M.R.S.A.  963.  The Selectmen were keenly
         aware of this union activity.

     6.  Shortly after Local 48 was certified, Greenleaf called Richard R.
         Peluso, International Trustee for Local 48, to complain that he
         had been replaced in his heavy-equipment-operator duties and
         assigned to manual labor.  The Local 48 steward also complained
         to Peluso about this action against Greenleaf.  Peluso then com-
         plained to the Town attorney who informed Town Mananer Michael
         Houlihan who informed the Selectmen of the allegation.  The conduct
         ceased.  Greenleaf stated that this was not the first time this had

     7.  On Friday, August 18, 1978, Greenleaf was informed that a company
         would be drilling a well near his trailer, as he had previously
         requested, on the following Monday.  He had been without water for
         three weeks.  In order to get water into his trailer, a thirty-foot
         trench to the drill site needed to be dug.  Since the Town "back-
         hoe" is desiqned to dig such trenches, Greenleaf attempted to get
         permission to use the backhoe to do this job.  Permission to use the
         backhoe had been granted to Town employees before.

     8.  Greenleaf was unsuccessful in his attempt to obtain permission to use
         the backhoe. He also did not pursue all possible contractors who
         possibly could have provided a backhoe on an emergency basis, perhaps
         because he could not expect to use such a backhoe at no cost. In any
         event, when he was unable to reach either Houlihan or Highway Foreman
         Hanscom by phone that evening - they were not home - and when his
         efforts to contact some local contractors proved unsuccessful, he
         nonetheless used the Town backhoe.

     9.  Greenleaf knew that it was not proper for him to use the equipment
         without permission.  He also knew that at least one other Town
         employee had previously used the backhoe for personal benefit.  Town
         Manager Houlihan testified that he, in fact, would have granted
         Greenleaf permission to use the backhoe had he but asked.
         Greenleaf's decision was complicated by the fact that another
         employee had told him that afternoon that he would bring the backhoe
         to Greenleaf's home the next Afternoon, Saturday, August 19, 1978,
         after he was done with it himself.


    10.  The other employee removed the backhoe from its work location on
         Saturday morning, used it, and then delivered it to Greenleaf's
         home that afternoon.  Greenleaf used the backhoe but the front
         wheel dropped into a hole causing the front spindle to break and
         rendering it inoperable.

    11.  Rather than return the backhoe to the unattended work location
         from which it had been taken, however, Greenleaf returned the back-
         hoe directly to the town garage on Sunday, Auqust 20, 1978, after
         fixing it so that it could be driven.  There was no attempt by
         Greenleaf to hide the damage or his responsibility for it.  On
         Monday morning, he immediately approached his supervisor, Highway
         Foreman Hanscom, to tell him what had happened.  Hanscom said he
         would have to see Town Manager Houlihan and that he did not know
         what would happen.  Greenleaf offered to pay for any repairs and
         requested a meeting with the Town Manager to explain his side of
         the story.  Hanscom said that he would try.

    12.  Hanscom spoke to Houlihan that morning and told him what he knew,
         that Greenleaf had both offered to pay and that he had requested
         a meeting with Houlihan.  Houlihan, however, never responded to
         Greenleaf's request.  He also did not seek out Greenleaf to talk to
         him about the incident.  Houlihan did consult with the Selectmen
         and then, on Friday, September 1, 1978, he told Greenleaf to either
         resign or be fired for the removal of town equipment, a term found
         in the existing agreement.  At the hearing, Houlihan elaborated
         that the crux of the matter was the taking without permission.
         Greenleaf chose not to resign and tried to explain why he had needed
         the backhoe.  However, Houlihan refused to even discuss the matter
         and said that Greenleaf was terminated.  He apparently never learned
         of Greenleaf's explanation.

    13.  Houlihan had fired a Town employee five years earlier, but only after
         frequent personal discussions with the employee about the problem.
         In his 11 years as a Town Manager he had never fired someone without
         first talking with the employee, except for Greenleaf.

    14.  There was no history of problems with employees, townspeople, or
         Selectmen using town equipment without permission despite a rather
         widespread practice of permitting many items of town equipment to be
         used for personal benefit.  In fact, auto repair equipment may be
         used on weekends at the town garage by town employees without prior



     Local 48 contends that the Town violated 26 M.R.S.A.  964(1)(A),(B)&(C)
by discharging Greenleaf because, although he wrongfully used the backhoe, he
would not have been discharged but for his union activities.  The Town
counters that there was a sufficient basis for discharge and that Local 48
has not met the burden of establishing a prohibited practice.

     We conclude that Greenleaf was not discharged for cause.  Although some
measure of discipline was appropriate, it is clear that the discharge was
based on his protected activity.  Thus the Town has violated 26 M.R.S.A.
 964(A)&(B).  We therefore direct that Greenleaf be offered reinstatement.

     In general, an act will violate 26 M.R.S.A.  964(1)(A) or (B) if simply
one of the motivating factors for the act was an unlawful one.  Teamsters
Local 48 v. City of Augusta, MLRB No. 78-04 (1978).  The same standard applies
to a


discharge.  See Freeport P.B.A. v. Town of Freeport, PELRB No. 74-18 (1974),
aff'd sub nom. Campbell v. Town of Freeport, No. C-75-621, Kennebec Super.
Ct., Sept. 2, 1976; Accord, N.L.R.B. v. Princeton Inn Co., 424 F.2d 264, 265
(3d Cir. 1970).

     In Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 (1978), we
upheld a discharge where it was based "solely" on lawful factors. Here,
however, we conclude that the Town would not have discharged Greenleaf but
for his protected activity.  We find this improper motive by inference from
the failure to investigate the incident at all, from the failure to
"thoroughly" investigate as required by the agreement, from the refusal of
the Town Manager to give Greenleaf an opportunity to explain himself, from
the unexplained change in disciplinary procedures used in the past, from the
determination that discharge was the "only way to maintain discipline," and
from the sheer unlikelihood that an employee with fifteen years of discipline-
free service would be discharged under these circumstances and in this manner
had he not been the foremost union activist in the unit.

     The agreement required a "thorough investigation."  (Jt. Exhibit "A" at
5)  There was none.  Houlihan, and presumably the Selectmen, only knew that
the back-hoe was used without permission and damaged by Greenleaf.  They did
not know why Greenleaf had used it.  They did not know what efforts he had
made to obtain permission.  They did not know that he had never used town
equipment without permission before in fifteen years.  It is even questionable
whether the Selectmen were told that Greenleaf had offered to pay for the
damage.  There was, in fact, no investigation at all.  This creates a strong
inference of improper motive.  See NLRB v. Quick Shop Markets, Inc., 416 F.2d
601, 605 (7th Cir. 1969).

     The agreement also required that discharge not be utilized as a form of
discipline unless "the Town Manager is convinced dismissal is the only method
by which discipline can be maintained."  (Jt. Exhibit "A" at 5) (Emphasis
added)  Given the complete lack of investigation, including the failure to
speak to Greenleaf himself, given that there had been no preexisting problem
of unauthorized use of town equipment that needed to be deterred, given that
Greenleaf offered restitution, and given that he had a perfect conduct record
over fifteen years, it is unbelievable that the decision to discharge could
have been reached based on a permissible motive.

     Moreover, Houlihan went beyond simply not investigating and not speaking
to Greenleaf (a change from his prior practice), he actually refused to listen
to Greenleaf at the time of the firing and never responded to Greenleaf's
previous request to be heard.  In short, we simply do not believe the
testimony that the motives were pure and we find, in that very testimony, to
the contrary.

     Consequently we conclude that the Town has violated 26 M.R.S.A.
 964(1)(A)&(B) by discharging Richard Greenleaf.  We order an appropriate


     On the basis of the foregoing and pursuant to  968 of the Municipal
Public Employees Labor Relations Act, it is hereby ORDERED that the Town of
Jay, its


Selectmen, its Town Manager, and other representatives and agents:

     1.  Cease and desist from:  (a) interfering with, restraining
         or coercing employees in the exercise of rights guaranteed
         in Section 963 of the Act; (b) discouraging membership in
         Teamsters Local Union No. 48, State, County, Municipal and
         University Workers in the State of Maine, by discriminating
         in regard to hire or tenure of employment or any term or
         condition of employment; and particularly (c) discharging
         employees because of the exercise of their rights protected
         under the Act.

     2.  Offer Richard Greenleaf immediate and full reinstatement
         without back pay to his former position, or if that position
         no longer exists, to a substantially equivalent one, without
         prejudice to seniority or other rights or privileges, including
         vacation, which shall accrue as if service had been continuous.

Dated at Augusta, Maine this 27th day of February, 1979.

                                       MAINE LABOR RELATIONS BOARD

                                       Donald W. Webber
                                       Alternate Chairman

                                       Michael Schoonjans
                                       Employee Representative

                                       Henry W. Mertens
                                       Alternate Employer Representative