STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-29
_____________________________
)
TEAMSTERS LOCAL UNION NO. 48,)
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
CITY OF CALAIS, )
)
Respondent. )
_____________________________)
Teamsters Local Union No. 48 (the "Union") filed this prohibited
practice complaint with the Maine Labor Relations Board (the "Board") on
March 3, 1980. The Union alleges that the City Manager committed various
prohibited practices by his statements of January 25, 1980. The City of
Calais (the "City") filed its response on March 17, 1980. Alternate Chairman
Gary F. Thorne held a pre-hearing conference in the matter on April 3, 1980,
after which he issued a Pre-Hearing Conference Memorandum and Order dated
April 4, 1980, the contents of which are incorporated herein by reference.
A hearing was held on April 9, 1980, Chairman Edward H. Keith presiding, with
Employer Representative Don R. Ziegenbein and Alternate Employee Representa-
tive Harold S. Noddin. The Union was represented by Walter Stilphen and the
City by John A. Churchill, Esq. After a full opportunity to present evidence
and to cross-examine witnesses, both representatives made oral argument at
the close of the hearing.
JURISDICTION
Jurisdiction of the Board lies in Section 968(5) of the Municipal Public
Employees Labor Relations Law (the "Act"), 26 M.R.S.A. Sec. 968(5).
FINDINGS OF FACT
1. City Manager William Bridgeo is a public employer who acts on
behalf of the City of Calais. 26 M.R.S.A. Sec. 962(7). The Union
is a public employee organization. 26 M.R.S.A. Sec. 968(5)(B);
962(2).
2. The Union represents two collective bargaining units of City
employees: the "command" unit, which consists of Police
Sergeant and the Assistant Fire Chief, and the patrolmen unit,
which consists of Patrolmen (seven) and Senior Patrolman (one).
In September 1979, Sergeant Ralph Bridges was the steward of the
command unit and Patrolman Michael Milburn was the steward of the
patrolmen unit. Both have approximately eight years of longevity;
Bridges was one month more than Milburn. The chain of command
above the sergeant is a lieutenant, the Chief of Police, and then
the City Manager.
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3. In August 1979, Bridgeo assumed the post of City Manager, having
come to the job from outside the City. At this time, the Chief of
Police had already submitted his resignation to be effective in
November 1979. The outgoing Chief was a highly respected leader
and was well-known throughout the state. Bridgeo solicited appli-
cations for the position nationally and convened a selection board
to make hiring recommendations. The selection board interviewed
five finalists, including then-Lieutenant Richardson and Patrolman
Baren. The selection board recommended Richardson for the position,
although they considered that he was relatively young for the posi-
tion at twenty-nine years of age. In contrast, the selection board
recommended that Baren not be hired for any administrative position.
Bridgeo temporarily appointed Richardson as Chief of Police effective
November 9, 1979, and the City Council confirmed the appointment as
permanent on November 27, 1979.
4. During the Chief selection process, the relationship between Baren
and Richardson had horribly deteriorated. The actual appointment of
Richardson caused further trouble in the Police Department.
5. The appointment of Richardson to Chief also created a vacancy in the
Lieutenant position. Five people applied for this vacancy, including
Baren, Bridges, and Milburn. The overall tension in the department
increased during the ensuing oeriod. Since 1975, promotions to the
Lieutenant position had been offered to the person with the top score
on the most recent exam which had been given every two years since
1975. This procedure had been followed on the two occasions when
there had been a Lieutenant vacancy. The last exam had been given in
April 1979, and the top score on this exam belonged to Patrolman
Baren.
6. When Chief Richardson hedged on immediately promoting Baren to Lieu-
tenant, a great deal of foment was created among the officers. Most
of them apparently felt that the past procedure should have been
followed. City Manager Bridgeo, however, insisted on a new exam and
a formal selection process prior to filling the position. The
tension and pressure on Chief Richardson was extremely severe at this
point. Department morale was on a "roller coaster." Finally, Chief
Richardson, although he was concerned about the growing acrimony in
his relationship with Baren who was pushing very hard for the
position, agreed to recommend that Baren be hired as Lieutenant.
However, Bridgeo squelched the idea.
7. In December 1979, at least two grievances were filed. At issue were
holiday pay and overtime for certain duty. A meeting between Union
Business Representative Stilphen and City Manaqer Bridgeo, the last
step in the grievance procedure before arbitration, took place in
late December. There was no resolution and the Union decided to
take these cases to arbitration.
8. At some point around this time the Union also filed a grievance con-
cerning the failure to promote Baren to Lieutenant based on the April
1979 exam.
9. As time passed, pressures from the controversies regarding personal
conflicts, grievances, and the continuing promotion question mounted.
Baren and Richardson had "heated" discussions over the fact that
Baren was not being promoted. The burden on the Chief was exacer-
bated by the fact that he was working during this period without a
Lieutenant to assist him. In addition, he was having professional
conflicts with the next highest officer, Sergeant Bridqes. It was
clear that they did not get along well. It was also evident that at
least two of the five Lieutenant applicants had been pleading their
cases directly to City Council members.
10. On January 24, 1980, an incident happened which resulted in a
complete breakdown of the functioning of the Police Department. As
stated at the hearing, it "blew the lid off." While there is no
basis in this record to determine exactly what ignited the situation,
it being immaterial in any event, there was an allegation that a
secretary in the Department accused the Chief of choking her.
(Shortly before, Baren and Richardson had just had a heated argument.)
In any event, Chief
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Richardson called Bridgeo to tell him that things were falling
apart. During the call, Sergeant Bridges came into the Chief's
office and spoke harshly to the Chief. They had heated words
about the situation. Realizing that things were out of control,
and sensing the great stress on Richardson, Bridgeo told him to
come to his office immediately. Bridgeo then kept Richardson
isolated from the continuing swirl of events for the next day or
so as Bridgeo attempted to deal with the crisis. Bridgeo stated,
without any detail, that both he and Richardson had been sub-
jected to physical threats.
11. Meanwhile, a number of officers met together at a private home and
decided to call a Department meeting without the Chief and, since
they did not have confidence in City Manager Bridgeo, they decided
to call the three City Councilors who compose the Police Commission.
Only Councilor Sax, a respected community leader, was reached to be
invited to the meetino. Sax promised to give them an answer shortly.
Sax then discussed the meeting with Bridqeo, and they decided that
Sax should attend the meeting as requested. At the meeting that
afternoon it was evident that some of the officers wanted to arrest
the Chief. It was also stressed that this was not a union meeting.
Rather the men were concerned as police officers about the operation
of the police force, the morale of the Department, and a crisis of
confidence in leadership. The officers present took a vote of "no
confidence" in Chief Richardson.
12. Councilor Sax informed Bridgeo that the situation was extremely
serious, that it had a dangerous potential, and that Bridgeo should
act immediately to get control of the situation. Coincidentally,
the City Council was meeting that evening, January 24, 1980.
Bridgeo reviewed the entire situation with them that evening and
they reached some basic conclusions: the Chief would be fully sup-
ported and a Lieutenant would be hired as soon as possible based on
a new exam.
13. On January 25, 1980, Bridgeo called a meeting at 3:00 p.m. for that
day. He specifically directed Sergeant Bridges and Patrolman Milburn
to come to the meeting. Although these two happened to be union
stewards, Bridgeo called them to the meeting because they were by far
the two most senior men in the Department and in that capacity, not
as stewards. They understood this, and did not assert their steward
status. Also in attendance were Mayor William Delmonaco and
Councilor Sax.
14. At the meeting, Bridgeo informed Bridges and Milburn what the City
Council had decided about supporting the Chief. He showed them a
letter of reprimand he was sending to the Chief and discussed the
tension the Chief was under. He stated that he would give another
promotion exam and appoint a Lieutenant within two weeks or so.
15. The following comments of Bridgeo in this paragraph are the subject
of the prohibited practice complaint. They are admitted by the City
as being, in substance, what Bridgeo actually said:
"If there is any more Rebel rousing, anyone causing upheaval
within the Department, anyone steps out of line or does not
support the Chief, they will be fired. After they are fired
they can file a grievance with the Union and fight from the
outside looking in."
Bridgeo continued by telling Patrolman Milburn that he would be
promoted to Lieutenant if he did fairly well an the promotion exam
and by telling Sergeant Bridges that he would get an increase in
pay above what the contract called for if he would accept Milburn's
promotion above him. Bridgeo then stated that he would fire anyone
who did not follow the chain of command. Finally, he stated that
Patrolman Baren would never be promoted to Lieutenant. The meeting
lasted only 15 minutes.
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16. Both Bridges and Milburn felt intimidated by the meeting.
Milburn, who was promoted to the Lieutenant position a few
weeks later, interpreted "causing upheaval" as the filing of
a union grievance. He felt that if he filed a grievance the
next day over a contract violation, then he would be fired.
Milburn did not assume that "causing upheaval" referred to
serious disruptions of another nature. They both also felt
that Bridgeo and Richardson had been taking union grievances
personally although by the time of the hearing they felt that
things were back in perspective. Bridges and Milburn agreed
that something had to be done at the time.
17. Bridgeo stated that his purpose in calling the meeting was to
defuse the explosive situation which had been brewing and had
finally been precipitated by the secretary incident. His con-
cerns were a lack of support for the Chief in his leadership
and routine decisions and the bypassing of the chain of command
which included him. He also stated that he did not intend to
chill legitimate union activity. He only intended to restore
order and to eliminate any activity unjustifiably or maliciously
designed to increase strain on the already serious situation.
18. Bridgeo stated that his motive in offering Bridges a pay raise
above the contract was an attempt to keep Bridges on the police
force even though he was being passed over for Lieutenant.
Bridgeo had heard that Bridges had been frustrated and was think-
ing of leaving the force. Bridgeo did not want Bridges to feel
rejected; he wanted Bridges to remain on the force as a needed
mature officer.
19. Sergeant Bridges spoke to a Local 48 official immediately after
the contingent raise offer that City Manager Bridgeo had made
at the January 25th meeting. He then returned to Bridgeo at some
point and asked for the raise. Bridgeo asked Bridges if he was
going to file a grievance (presumably over the putative promotion
of Milburn). When Bridges responded yes, Bridgeo said he would
not give him a raise, stating: why should I give you a raise and
also have to spend money fighting your grievance. Bridgeo ex-
plained that the reason he did not go through with the raise was
that he realized within days after his statements of January 25th
that he could not deal directly with one member of a bargaining
unit without consulting the union. It is unclear whether this
second conversation between Bridges and Bridgeo took place in the
week after January 25th or immediately after the actual promotion
of Milburn in the second week of February 1980. We conclude that
the conversation took place in the week following January 25, 1980,
based on the implications of the testimony of both of the individu-
als.
20. Sergeant Bridges did indeed file a grievance shortly thereafter
regarding the promotion or intended promotion of Milburn, although
again it is unclear exactly when.
21. On February 8 and 9, 1980, the new promotion exam was held.
Among the four who completed the exam, Bridges had the highest
score; Milburn the next highest. Milburn was promoted to Lieutenant
shortly thereafter.
22. The Union dated this prohibited practice complaint February 20th;
it was received by the Town on February 29; and filed with the Board
on March 3, 1980.
23. The promotion issue has been submitted to arbitration and an arbi-
tration hearing in the matter had been completed prior to the hearing
before this Board on April 9, 1980.
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DISCUSSION
The Union contends that the statements about causing upheaval, about
filing a grievance after being fired, and about not following the chain of
command are violations of Section 964(1)(A) and (C), 26 M.R.S.A. 964(1)(A)
& (C). It alleges that the promise to promote Milburn is a violation of
Section 964(1)(E), that the offer of a contingent raise to Bridges is a
violation of Section 964(1)(C) and (E), and that the fiat that Baren would
never be promoted was a violation of Section 964(1)(C). The City, while
conceding that the statements were made, argues that in the context of the
situation the City Manager's statements were reasonable and do not constitute
prohibited practices. For the reasons given below, we conclude that the City
Manager violated Section 964(1)(E) and (A) in his dealings with Sergeant
Bridges concerning a raise above the contract. We reject all other claims.
I. Alleged threats about filing grievances.
The primary concern here is the meaning and interpretation in context of
the statements of City Manager Bridgeo on January 25, 1980, the key phrases of
which are "Rebel rousing," "causing upheaval" and the reference to filing a
grievance in the statement: "after they are fired they can file a grievance
with the Union and fight from the outside looking in."
We immediately dismiss the charge under Section 964(l)(C) because, as we
have stated before, this section of the Act is directed at the evil of too
much financial or other support of, encouraging the formation of, or actually
participating in, the affairs of the union and thereby potentially dominating
it. It does not cover confrontation or threat as alleged here. See, e.g.,
Winthrop Educators Association v. Winthrop School Committee, MLRB No. 80-05
(Feb. 8, 1980) (slip op. at page 7); Nassau and Suffolk Contractors Ass'n,
Inc., 118 NLRB 174, 40 LRRM 1146 (1957).
With regard to Section 964(1)(A) there is convincing evidence that these
two senior officers, Bridges and Milburn, felt intimidated and coerced
regarding their protected right to file grievances. See, May Department
Stores v. N.L.R.B., 555 F.2d 1338 (6th Cir. 1977); Interboro Contractors,
Inc., 157 NLRB 1295, 61 LRRM 1537 (1966), enforced, 388 F.2d 495 (2d Cir.
1967). We do note, however, that Bridges did discuss with Bridgeo his
intention to file a grievance only shortly after January 25th. Bridgeo made
no discouraging remarks at that time. Also, no action was taken against
Bridges when he actually did file a grievance over the promotion.
Bridgeo gave convincing testimony that his motives in making these
statements at the time did not include an attempt to chill any union activity
such as the filing of a grievance.[fn]1 City Manager Bridgeo was an intelli-
gent witness who was not afraid to admit to mistakes. We found him to be
frank and honest and we credit his testimony.
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1. We discuss in Part III the obvious and admitted intent to induce Sergeant
Bridges not to file a grievance over the Milburn promotion by offering a
raise in pay, not considered in Part 1.
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The standard against which we judge a violation of Section 964(1)(A) is
set forth in Cooper Thermometer Co., 154 N.L.R.B. 502, 503 n.2 (1965): "The
test is 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." At first impression, we note that the words spoken are susceptible of
interpretation as a veiled threat against any individual who would file a
grievance. Indeed we do not in any way disparage the testimony of Bridges
and Milburn that they did feel threatened and intimidated as a result of this
meeting with regard to their filing of grievances. However, when we view the
statements in the context of the surrounding circumstances, the inference that
Bridgeo was referring to the filing of grievances is dissipated.
The serious crisis that the department was in was not union related.
Rather, it concerned a crisis of confidence, leadership, and authority.
Police officers were meeting and acting as individuals, and the chain of
command had broken down completely. Certainly, union grievances had added to
the complexity of the situation. However, the thrust of Bridgeo's comments
was directed at the rebuilding of support for the decimated authority of the
Chief. Thus, given the extreme nature of the tension and conflict and the
grave threat to public safety posed by the situation, we believe that it was
reasonable for Bridges and Milburn to feel intimidated in regard to their
conduct in general, but not necessarily in regard to the good faith filing of
grievances. Rather, under all these circumstances we conclude that it would
not be objectively reasonable to say that Bridgeo's comments tended to
interfere with the free exercise of protected rights.
II. The promise to promote Milburn.
This issue is intimately tied to what rights under the contract were
reserved to management regarding promotion procedures and criteria. An
alleged violation of Section 964(1)(E) would require that we find a unilateral
change in working conditions. This is similar to whether or not there has
been a violation of the current contract. Since the latter issue is going to
be decided by an arbitrator at the voluntary impetus of the Union, we find it
appropriate to defer to the arbitrator's decision following the long-standing
policy of the National Labor Relations Board as expressed in Dubo Manufactur-
ing Corp., 142 NLRB 431, 53 LRRM 1070 (1963). The reasons for deferring this
issue are even more compelling since it is clear that the parties have focused
their energy before the arbitrator on that issue and not before the Board.
III. The offer of the raise to Bridges.
Again, the charge under Section 964(1)(C) is dismissed as misdirected.
There is no evidence that the attempt to influence Bridges was undertaken for other than
this one incident. See Part I.
We conclude, however, that the proposal to pay Bridges above the contract
rate in return for something is a serious and clear attempt to bypass the
exclusive bargaining representative. This serves to undermine the Union's
legal status. Even after City Manager Bridgeo had time to reconsider his
proposal, he did not withdraw it. Rather, he continued the offer in his
later discussion with Bridges, who simply would not accept the condition.
Bargaining directly with employees about wages and conditions is a clear
violation of Section 964(1)(E). See, e.g., Maranacook Community School Staff
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Association v. Harrison, MLRB No. 79-49 (Nov. 18, 1979) (slip op. at page 4
n.1); Hearst Corp., 230 NLRB No. 29, 95 LRRM 1274 (1977) (offering retirement
benefits in excess of contract to induce retirement).
This conduct also independently violates Section 964(l)(A), however,
since it was an attempt to interfere or restrain Bridges in his basic right
to file a grievance. Moreover, if he rejects the offer, there is inherent
coercion flowinq from the fact that Bridges would be rejecting a superior
with the power to fire or promote him.[fn]2
We will issue an appropriate cease and desist order as required by
Section 968(5)(C) but we see no consequential injury from this discussion
that would require any affirmative action, particularly since the City Manager
acknowledged his error and convinced us of his sincerity regarding the future.
IV. Precluding the promotion of Baren.
The statement about not promoting Baren does not implicate Section
964(1)(C) as alleged. See Part I. We therefore dismiss this charge.
ORDER
The City Manager of the City of Calais, his successors, representatives,
and agents shall cease and desist from:
(1) bargaining over wages, hours, working conditions or contract
grievance arbitration directly with members of bargaining units
represented by Teamsters Local Union No. 48; and
(2) interfering with, restraining or coercing employees in the ex-
ercise of their right to file grievances.
Dated at Augusta, Maine, this 13th day of May, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Edward H. Keith
Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Harold S. Noddin
Employee Representative
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2 It would have been perfectly appropriate to discuss the subject of a raise
for Bridges with the Union.
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