Holmes v. Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmans' Assoc., No. 82-14, appeal dismissed as untimely CV-82-613 sub nom. Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Assoc, reversed 461 A.2d 1054 (Me. 1983). Board Supplemental Decision and Order, Aug. 3, 1983. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-14 Issued: September 27, 1982 ________________________________________ ) ALLEN C. HOLMES, RICHARD REDICAN, ) AND OLD ORCHARD BEACH POLICE ) PATROLMEN'S ASSOCIATION, ) ) Complainants, ) ) v. ) DECISION AND ORDER ) TOWN OF OLD ORCHARD BEACH AND OLD ) ORCHARD BEACH PUBLIC SAFETY COMMISSION, ) ) Respondents. ) ________________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on October 30, 1981, by Allen C. Holmes, Richard Redican, and the Old Orchard Beach Police Patrolmen's Association ("Union"). The Complainant alleges that the Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission ("Employers") violated 26 M.R.S.A. 964(A), (B), and (D), by dismissing and/or laying-off Officers Holmes and Redican, by replacing them with part-time police officers and a part-time dispatcher and by failing to offer Officers Holmes and Redican employment during the dismissal or lay-off period. The Respondents filed an answer, on November 13, 1981, denying that they had violated any section of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961 , et seq. ( "Act"). A pre-hearing conference on the case was held on December 7, 1981, Alternate Chairman Donald W. Webber presiding. On December 14, 1981, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. Hearings on the case were held on January 6, 1982 and on February 12, 1982, Alternate Chairman Donald W. Webber presiding, with Employer Repre- sentative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Complainants were represented by Wendell G. Large, Esq., and the Respondents were represented by F. Paul Frinsko, Esq. The parties were given full opportunity to examine and -1- cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Maine Labor Relations Board ("Board"). The Board, at the request of counsel for the Respondents, deliberated this case in a public session at the Androscoggin Law Library, Auburn, Maine, on September 16, 1982. Advanced notice of the public deliberation session was given to the parties by letter dated September 10, 1982. JURISDICTION The Complainant Union is the exclusive bargaining agent, within the meaning of Section 968(5)(B), for a bargaining unit of designated regular full-time employees of the Old Orchard Beach Police Department, including Allen C. Holmes and Richard Redican. Allen C. Holmes and Richard Redican are public employees within the definition of 26 M.R.S.A. Section 962(6). The Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission are public employers as defined in Section 962(7) of the Act. The jurisdic- tion of the Maine Labor Relations Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. Section 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. Allen C. Holmes is an individual residing on Cascade Road in the Town of Old Orchard Beach, County of York, and State of Maine. At all relevant times prior to September 12, 1981, Mr. Holmes was employed by the Town of Old Orchard Beach and by the Old Orchard Beach Public Safety Commission as a regular full-time employee of the Old Orchard Beach Police Department. 2. Richard Redican is an individual residing at 177 South Street in the City of Biddeford, County of York, and State of Maine. At all relevant times prior to September 12, 1982, Mr. Redican was employed by the Town of Old Orchard Beach and by the Old Orchard Beach Public Safety Commission as a regular, full-time employee of the Old Orchard Beach Police Department. 3. The Old Orchard Beach Police Patrolmen's Association is a voluntary labor organization, having its principal place of business at the Old Orchard Beach Police -2- Department in the Town of Old Orchard Beach, County of York, and State of Maine. At all relevant times, the Old Orchard Beach Police Patrolmen's Association ("Union") was certified as the bargaining agent for designated regular, full-time employees of the Old Orchard Beach Police Department, including Allen C. Holmes and Richard Redican. 4. The Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission were, at all times relevant hereto, the public employers of the regular, full-time employees of the Old Orchard Beach Police Department. 5. The Old Orchard Beach Town Council, the legislative body for the Town of Old Orchard Beach, appropriates funds for the budget of the Old Orchard Beach Police Department. The Town Council also negotiates, on behalf of the Town of Old Orchard Beach, with the bargaining agent representing the employees of the Old Orchard Beach Police Department. Once the Town Council has appropriated the funds for the budget of the Old Orchard Beach Police Department, the Old Orchard Beach Public Safety Commission administers the operation of the Old Orchard Beach Police Department, as well as the Old Orchard Beach Fire Department and the Old Orchard Beach Public Safety Complex. 6. At all relevant times prior to September 12, 1981, Allen C. Holmes served as President of the Union. Mr. Holmes participated, on behalf of the Union, in the collective bargaining negotiations which resulted in the current collective bargaining agreement between the parties. 7. At all relevant times prior to September 12, 1981, Richard Redican was a member of the Union. Mr. Redican participated, on behalf of the Union, in the collective bargaining negotiations which resulted in the current collective bargaining agreement between the parties. 8. On or about September 12, 1981, Mr. Redican was the most junior full- time police officer, in terms of seniority, in the employ of the Old Orchard Beach Police Department and Mr. Holmes was the next junior employee. 9. The current collective bargaining agreement between the parties and the agreement which preceded it both provide that reductions in force are to be effected in terms of inverse seniority, to wit: the last employee hired is to be the first laid-off and so forth along the seniority list. 10. During July 1981, while participating in an informational picket line, outside of the Old Orchard Beach Town Hall, protesting the Employers' alleged -3- refusal to replace a full-time police officer (who had resigned) with another full-time employee rather than with part-time employees and the Employers' alleged refusal to abide by a grievance arbitration award ordering the Employers to replace the full-time officer with a full-time employee; Officer Holmes was confronted by Old Orchard Beach Town Manager Jerome Plante. 11. During the course of the confrontation mentioned in paragraphic hereof, Town Manager Plante told Officer Holmes that there would be no successor collective bargaining agreement between the parties so long as Holmes was involved in the bargaining process on behalf of the Union. Town Manager Plante further told Officer Holmes, during the course of the conver- sation, that he (Holmes) "would be taken care of." 12. Subsequent to the conversation mentioned in paragraph 11 hereof, Town Manager Plante telephoned John H. Clark, Sr., who was the Old Orchard Beach Police Chief at that time, and, stating that "the Union boys are not doing themselves any good," asked the Chief to halt the picketing. Chief Clark informed the Town Manager that the picketing was legal and nothing could be done about it. 13. During July, 1981, the Old Orchard Beach Town Council finalized the Police Department budget for fiscal year 1981. The Town of Old Orchard Beach's fiscal year is the calendar year. At that time, the reserve payroll account, which is used to pay the wages of part-time police officers, was already over budget while the regular payroll account, which is used to pay the regular full-time police officers, was under budget. 14. During August, 1981, at a workshop on the Old Orchard Beach Town Budget, the Town's financial advisor, a certified public accountant, suggested to the Town that the Police Department budget could be balanced, within the appropriate amounts, by reducing the number of special (part-time) officers for the rest of the summer and by laying-off all special officers and one full-time police officer after Labor Day, 1981. 15. The financial advisor's recommendations were based on the assumption that the Old Orchard Beach Police Department would continue to spend the same sums of money, as it had during the summer, for the payment of special (part- time) police officers for the remainder of the 1981 fiscal year. Because of the seasonal nature of the Old Orchard Beach community, special officers had, in past years, only been used on an on-call basis to fill-in for regular officers, who were absent for some -4- reason, after the other regular officers had declined to do so, on an over- time basis. Special police officers are not bargaining unit members. 16. At the meeting mentioned in paragraph 14 hereof and immediately subsequent to the financial advisor's making the recommendation noted in said paragraph, the Town Manager stated that two regular officers must be laid-off. 17. On or about August 13, 1981, Mr. George Kerr, a member of the Old Orchard Beach Town Council, met with Officer Holmes at the fire barn in Old Orchard Beach. During said meeting, Mr. Kerr suggested that Officers Holmes and Redican could avoid being laid-off by assisting the Town in the firing of the Police Chief, Chief Clark. Officer Holmes rejected Mr. Kerr's proposal. 18. That on or about August 13, 1981, Mr. Kerr and Town Manager Plante recommended that the Old Orchard Beach Public Safety Commission terminate all special (part-time) officers and two regular full-time officers, effective the Saturday after Labor Day (September 12, 1981), at a meeting of the Commission. Mr. Kerr justified his recommendation on the grounds that, without such action, the Old Orchard Beach Police Department's budget would be over-spent by as much as $50,000. The Commission, subsequent to discussion, voted to take the recommended action. The Commission also voted to suspend Chief Clark, immediately and without pay, at said meeting. 19. On or about September 4, 1981, Paul A. Tibbetts, Acting Chief of the Old Orchard Beach Police Department, notified Officer Holmes, by letter, that "Saturday, September 12, 1981 will be your last day of work. Due to the lack of funds left in the Police Department Budget, the Public Safety Commission voted, the night of August 13, 1981, to lay off two regular police officers. You being the next to last to be hired, will have to be the second officer to be layed off." 20. On or about September 4, 1981, Paul A. Tibbetts, Acting Chief of the Old Orchard Beach Police Department, notified Officer Redican, by letter, that "Saturday, September 12, 1981 will be your last day of work. Due to the lack of funds left in the Police Department Budget, the Public Safety Commission voted, the night of August 13, 1981, to lay off two regular police officers. You being the last to be hired, will have to be the first to be layed off." 21. On or about September 4, 1981, a carburetor fire occurred in a cruiser operated by Officer Holmes and also occupied by Special Officer O'Neil. The shift -5- supervisor, Patrol Sergeant Chelate was notified and arrived at the scene. At Sergeant Chelate's direction, sand was thrown onto the cruiser's engine to extinguish the fire. 22. On or about September 23, 1981, Deputy District Attorney Gene Libby notified Acting Chief Tibbetts, by letter, that an investigation conducted by the Attorney General's Investigative Division, including inspection of the cruiser, mentioned in paragraph 21 hereof, by two State Police mechanics and a representative of the State Fire Marshall's Office, indicated no criminal wrongdoing on the part of Officer Holmes, in connection with the cruiser fire. 23. Officer Holmes and Redican were layed-off and their last day of work was September 12, 1981. 24. During the lay-off, noted in paragraph 23 hereof, the Employers used special (part-time) officers, not only to supplement shifts, but also to fill- in vacancies left open by regular officers, who were on sick leave or vaca- tion. The Employers also continue to use a part-time dispatcher, who had initially been hired only for the summer months, to fill four desk shifts which had been worked by Officers Holmes and Redican. 25. During the lay-off noted in paragraph 23 hereof, Officers Holmes and Redican who remained on the Police Department eligibility list, were not offered any work at all by the Employers although special (part-time) officers were offered and accepted work to fill-in for regular officers, who were not available because of illness or vacation. 26. During the lay-off, mentioned in paragraph 23 hereof, regular full- time officers worked more than their usual amount of over-time. 27. Subsequent to September 12, 1981 and prior to the reinstatement of Officers Holmes and Redican, Acting Chief Tibbetts met separately with Special Officers Eugene O'Neil and Martin Murphy to inform them that positions would be opening up in the Police Department and to inquire whether they might be interested in serving as regular full-time officers. 28. On or about November 10, 1981, the Old Orchard Beach Public Safety Commission discussed complaints over increased crime in the community and an overdraft in the special officers' account resulting from "not using them as specials, but to fill in vacation and sick time," according to Acting Chief Tibbetts. The Acting Chief -6- also told the Commission that the part-time dispatcher was still working for the Police Department and she could not be replaced without taking another officer off the street. 29. On or about November 13, 1981, Acting Chief Tibbetts informed Officer Holmes, by letter, that he (Holmes) was being removed as a police officer for the Town of Old Orchard Beach because of "[t1he amount of sand had to be poured into the carburetor while holding both throttle plates open. The amount of sand found inside the motor of car (1) had to be the result of intentional damage, and abuse." This alleged conduct stemmed from Officer Holmes' response to the cruiser fire, noted in paragraph 21 hereof. 30. The effect of Officer Holmes' removal, cited in paragraph 29 hereof, was that Holmes was removed from the Police Department eligibility list and would not be eligible for reinstatement with the Department, should a vacancy occur. 31. Officer Holmes was the only individual disciplined in any way, in connection with the cruiser fire of September 4, 1981. Neither Sergeant Chelate, at whose direction sand was thrown onto the cruiser's engine to extinguish the fire, nor Special Officer O'Neil, who was also present at the time of the fire, were reprimanded or otherwise subject to any discipline by the Police Department. 32. On or about November 18, 1981, the Town Council expressed its concern "to restore the element of safety which all of our citizens are entitled to" and established a voluntary School Watch Program and a Community/Neighborhood Watch Program. In addition thereto, the Town Council transferred $3,000.00 to the Police Department "for the exclusive purpose of assuming that there be a minimum of two police personnel for outside work on the second and third shifts to go into effect immediately." 33. On or about November 23, 1981, the Old Orchard Beach Public Safety Commission set the date for the hearing on Officer Holmes' dismissal for November 28, 1981. The Commission then noted the fact that the Town Council had transferred an additional $3,000.00 to the Police Department budget "for increased police services." Pending resolution of Officer Holmes' appeal, the Commission discussed reinstating Officer Redican and voted to direct "the Chief to make the arrangements to bring the necessary men back to duty immediately." 34. On or about November 25, 1981, Acting Chief Tibbetts notified Officer Redican, by letter, that he had been "re-hired as a regular police officer for the -7- Town of Old Orchard Beach, Maine." 35. On or about November 28, 1981, the Old Orchard Beach Public Safety Commission held a hearing to review the dismissal of Officer Holmes, in connection with his involvement with the cruiser fire of September 4, 1981. After receiving the relevant evidence the Commission voted "to reinstate Mr. Holmes immediately." 36. On or about November 28, 1981, Acting Chief Tibbetts notified Officer Holmes, by letter, that he (Holmes) "are hereby re-hired as a regular police officer for the Town of Old Orchard Beach, Maine." 37. The characterization by Acting Chief Tibbetts, in his letters to Officers Redican (paragraph 34, supra) and Holmes (paragraph 36, 5gra) that they had been re-hired, rather than reinstated, resulted in a controversy as to whether they were entitled to certain benefits and whether they would have to serve a probationary period. This controversy has been resolved, by the parties, and Officers Holmes and Redican have been reinstated as regular full- time police officers for the Old Orchard Beach Police Department. 38. From September 12, 1981 to November 25, 1981 for Officer Redican and from September 12, 1981 to November 28, 1981 for Officer Holmes, each officer lost the amount of $262.14 per week in gross wages, for a total of $2,889.04 in gross wages lost by each employee. In addition thereto, each employee lost retirement benefits, vacation time, and seniority. 39. During the lay-off period, cited in paragraph 38, supra, the Town of Old Orchard Beach spent the following sums: $2,880.00 To replace Officers Holmes and Redican on their regular shifts $1,155.00 For over-time pay on the day-time shift $1,684.00 For the part-time dispatcher to work shifts normally worked _________ by Holmes and Redican $5,719.00 Total 40. During the lay-off period, cited in paragraph 38, supra, the Town of Old Orchard Beach spent in excess of $5,000.00 for over-time pay for regular full-time officers and for pay to special police officers. During the same period of time, neither Officer Holmes nor Officer Redican were offered any work by the Police Department, although Officer Redican remained on the Department's eligibility list throughout said period and Officer Holmes was on the eligibility list from September 12, 1981 until November 13, 1981 (the date of notification by Acting Chief -8- Tibbetts of Holmes' removal as a police officer, paragraph 29, supra). 41. The Town of Old Orchard Beach ended fiscal (calendar) year 1981 with a surplus of $150,000.00. DECISION A preliminary issue raised in this case concerns the identity of the public employer(s). Consistent with our decision in Int'l Brotherhood of Police Officers v. City of Lewiston, MLRB Case No. 79-64, at pages 12 and 13, (12/18/79), we hold that both the Old Orchard Beach Town Council and the Old Orchard Beach Public Safety Commission are public employers of the employees of the Old Orchard Beach Police Department. The Town Council negotiates collective bargaining agreements with the bargaining agent, representing the aforesaid employees, and also appropriates the funds to finance the operation of the Police Department. Once the funds are appropriated, the Public Safety Commission has final authority over the operation of the Police Department. Under the foregoing facts, both entities exercise final authority over bargainable issues; both are, therefore, public employers within the definition of 26 M.R.S.A. Section 962(7). The principal issue in this case is whether the Employer violated 26 M.R.S.A. 964(1)(B) by laying-off Officers Holmes and Redican. In evaluat- ing the facts in this case the Board must consider whether the proper test for the Employers' conduct is the "in part" test, whether the Employers' conduct was partially motivated by anti-union animus, or the "dominant motive" test, whether the primary reason for the Employers' conduct was anti-union animus. We note that a good deal of confusion exists as to which of these tests is the proper one to apply in examining an employer's conduct in a discharge or lay- off context. The Supreme Judicial Court has, on at least two occasions, had the opportunity to decide which standard should be used. The issue did not, however, have to be reached by the Court in either case. City of Bangor v. AFSCME, Council 74 and M.L.R.B., Me., _____A.2d _____ , Law Docket No. Law- 81-407 (September 8, 1982); Baker Bus Service v. Edward H. Keith, Me., 428 A.2d 55, 56 (1981). In the absence of a definitive ruling thereon from the Law Court, the Board will, pursuant to the policy outlined by the Court, "look for guidance to parallel federal law, found in the National Labor Relations Act, and decisions thereunder" to resolve the question. Baker Bus Service, supra, at page 56, n.3. In Wright Line and Bernard R. Lamoureux, 251 MLRB 1083 (1980), the National Labor Relations Board ("NLRB") has -9- resolved the issue. Noting that various Federal Circuit Courts of Appeal have, at different times, applied each of these tests, the NLRB adopted a new test which harmonizes salient features of each standard. Wright Line, supra, at pages 1085-1086. Applying the test promulgated by the United States Supreme Court, in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), to facts similar to those now before us, the NLRB stated: "Under the Mt. Healthy test, the aggrieved employee is afforded protection since he or she is only required initially to show that protected activities played a role in the employer's decision. Also, the employer is provided with a formal framework within which to establish its asserted legitimate justification. In this context, it is the employer which has 'to make the proof.' Under this analysis, should the employer be able to demonstrate that the discipline or other action would have occurred absent protected activities, the employee cannot justly complain if the employer's action is upheld. Similarly, if the employer cannot make the necessary showing, it should not be heard to object to the em- ployee's being made whole because its action will have been found to have been motivated by an unlawful consideration in a manner consis- tent with congressional intent, Supreme Court precedent, and estab- lished Board processes . . . . . . . [F]or the reasons set forth above, we shall henceforth employ the following causation test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on em- ployer motivation. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's deci- sion. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct. Finally, inherent in the adoption of the foregoing analysis is our recognition of the advantage of clearing the air by abandoning the 'in part' language in expressing our conclusion as to whether the Act was violated. Yet, our abandonment of this familiar phraseology should not be viewed as a repudiation of the well-established principles and concepts which we have applied in the past. For, as noted at the out- set of this Decision, our task in resolving cases alleging in violations which turn on motivation is to determine whether a causal relation- ship existed between employees engaging in union or other protected activities and actions on the part of their employer which detrimentally affect such employees' employment. Indeed, it bears repeating that the 'in part' test, the 'dominant motive' test, and the Mt. Healthy test all share a fundamental common denominator in that the objective of each is to determine the relationship, if any, between employer action and pro- tected employee conduct." -10- Wright Line, supra, at page 1089. We find the NLRB's analysis persuasive and we hereby adopt the "Wright Line" test of causation for all cases which turn on the issue of the employer's motivation. Like the National Board, we believe that said standard will protect the rights of employees, to engage in protected under the Act, while simultaneously permitting employers to take necessary personnel actions, pursuant to legitimate managerial needs. Applying the first part of the Wright Line test to the facts now before us, we hold that the Complainants have made a prima facie showing that the Employers' conduct was motivated by Officer Holmes' union activities. Until the date of his lay-off, Officer Holmes was President of the Union and was a member of the Union's bargaining team, for negotiations for a successor collective bargaining agreement between the parties. The animosity between the Town Manager, an agent of the Town Council, and Holmes, over Holmes' union activities is apparent from the Town Manager's comments to Holmes, while the latter was engaging in informational picketing outside of the Town Hall. The Town Manager stated that there would be no collective bargaining agreement between the parties so long as Holmes was involved in the bargaining process on behalf of the Union. The Town Manager also told Holmes that he "would be taken care of," during said meeting. This latter statement must clearly be considered a threat to take retaliatory action against Holmes, especially in light of later developments. Holmes was the only employee to suffer discipline by the Employers as a result of the September 4, 1981 cruiser fire. This fact is significant because Holmes' actions, in connection with using sand to estinguish the fire, were carried out pursuant to an order to do so from Holmes' superior, Sergeant Chelate, who was also at the scene of the fire. Finally, when the Public Safety Commission was considering action on the Town financial advisor's suggestion that one full-time officer be laid- off after Labor Day, 1981, in order to balance the Police Department budget, the Town Manager immediately recommended that two full-time officers be laid- off. Holmes, as the second most junior man in terms of seniority in the Police Department, would, according to the reduction in force provision of the Old Orchard Beach Police Safety Commission Act, be the second officer laid- off. We believe that all of these facts, taken together, satisfy the Com- plainants' burden under the "Wright Line" test. Having found that the Complainants made "a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's conduct," we must examine the Employers' rationale for the actions taken. -11- The Respondent Employers maintain that Holmes and Redican were laid-off for the sole legitimate managerial reason that the lay-offs were required to avert significant budget overruns in the Old Orchard Police Department budget for fiscal (calendar) year 1981. The rationale proffered for the Employers' action would, had it been established, provide ample legitimate justification for said action. We hold, however, that the Employers' action, in laying-off Officer Holmes was not motivated by the legitimate interest of attempting to avoid budget overruns in the Police Department. The Respondents' allegation is refuted by several of the facts in this case. During the period of the lay-off, Acting Chief Tibbetts told two reserve officers that vacancies would be opening-up in the Department and asked them if they might be interested in becoming full-time officers. This indicates that the Respondents had no intention of reinstating Officers Holmes and Redican, regardless of the state of the Police Department budget. Secondly, during the lay-offs, the Police Department used part-time officers and a part-time dispatcher to perform the work which would have been performed by the laid-off officers. The cost for said part-time employees, together with the additional overtime pay for full- time officers, necessitated by Holmes' and Redican's absence, was nearly as much as would have been paid to Holmes and Redican. Thirdly, rather than offer work to Holmes and Redican, who remained on the Department's eligibility list, the Respondents used said part-time personnel and relied on additional overtime for the other regular officers to perform the work of the Department. The part-time personnel had not, in the past, been used by the Department after Labor Day to fill-in shifts for regular officers, who were absent because of illness or vacation. Finally, the Town of Old Orchard Beach ended fiscal (calendar) year 1981 with a surplus of $150,000. All of these facts rebut the Respondents' assertion that Holmes and Redican were laid-off because of financial necessity. In light of the foregoing application of the "Wright Line" test to the facts before us in this case, we hold that the Respondents Old Orchard Beach Town Council and Old Orchard Beach Public Safety Commission violated 26 M.R.S.A. Section 964(1)(B) by laying-off Officers Holmes and Redican. Our analysis has focussed on Officer Holmes because, we believe, the Respondents' anti-union animus was directed against him. Officer Redican, although himself a member of the Union's bargaining team for a successor collective bargaining agreement, was merely in the unfortunate position of being junior to Holmes, in terms of seniority with the Police Department. We find that Redican was laid-off for the purpose of allowing the Respondents to lay-off -12- the next senior employee, Holmes. Although the anti-union animus was directed against another employee, we hold that Officer Redican, in the facts before us, was laid-off in violation of Section 964(1)(B) of the Act. The second major issue herein is whether, by laying-off Officers Holmes and Redican, the Employers violated 26 M.R.S.A. Section 964(1)(A). Employer conduct is violative of this section of the Act if it may reasonably be said that the effect of said action tends to interfere with the free exercise of Section 963 rights. City of Lewiston, supra, at page 6. The lay-offs in this case clearly interfered with Holmes' and Redican's free exercise of their rights to participate in the Union's activities and we so hold. The final issue before us is whether the Respondents' laying-off Officers Holmes and Redican constitutes a violation of Section 964(1)(D). Although there was some testimony to the effect that Officer Holmes had offered testimony before an arbitrator, conduct which is protected under the Act, the record is lacking in any substantial evidence that said testimony prompted the actions of the Employers involved herein. We must, therefore, dismiss the Union's allegation concerning any violation of 26 M.R.S.A. Section 964(1)(D). REMEDIES Title 26 M.R.S.A. Section 968(5)(C) provides that the Board, upon a finding that a party has committed a prohibited practice, "shall issue and cause to be served upon each 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." In this case we have held that the Respondents violated Sections 964(1)(A) and (B) of the Act by laying-off Officers Holmes and Redican. Accordingly, we will order the Respondents to cease and desist from interfering with the Section 963 rights of the employees of the Old Orchard Beach Police Department and to cease and desist from discriminating against said employees because of their union activity. We note, however, that cease and desist orders, by their nature, have prospective application only and do not rectify the effects of past violations of the Act. We believe that a retrospective remedy is needed in this case to fully effec- tuate the policies of the Act. We will, therefore, order that, Officers Holmes and Redican be made whole for the losses which each incurred as a result of the Respondents' engaging in prohibited conduct. -13- The Respondents will be ordered to pay Officers Holmes and Redican the pay which each would have received, but for the Respondents' prohibited conduct, less any earnings which each may have earned from other sources of employment during the lay-off period. We will also order the Respondents to pay to Officers Holmes and Redican interest on the amount of back pay to which each is entitled. The formula to be applied in determining the amount of back pay due to each Officer shall be as follows: "Loss of pay is to be determined by deducting from a sum equal to that which each worker should have earned for each such quarter or portion thereof, the net earnings, if any, from other employment during that period. Net earnings means earn- ings less expenses, such as for transportation and room and board, incurred by the employees in connection with obtaining other work and working elsewhere than for the City during the quarters in question." Council 74, AFSCME v. City of Bangor, MLRB Case No. 80-41, at page 11 (9/24/ 80), aff'd, City of Bangor v. AFSCME, Council 74 and M.L.R.B., Me., ____ A.2d ____, Law Docket No. Law-81-407 (September 8, 1982). The interest due on the back pay award, if any, as determined by applica- tion of the above formula, shall be calculated as follows: "Interest on the back pay is to be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see also NLRB v. George E. Light Board Storage, Inc., 373 F.2d 762, 766 (5t-hCir. 1967). Thus, interest is to accrue commencing with the last day of each calendar quarter of the back pay period on the total amount then due and owing at the adjusted prime interest rate then in effect, and continuing at such rate, as modified from time to time by the Secretary of the Treasury, until the City has complied with this order." Council 74, AFSCME v. City of Bangor, Idem. In a recent decision, we noted the applicable rate of interest as follows: "Interest was computed as of the last day of each calendar quarter on the total amount then due and owing at the adjusted prime interest rate as determined by the United States Secretary of the Treasury. That rate was 6% per annum from February 1, 1978 to January 31, 1980, and 12% from February 1, 1980 to January 31, 1982. The rate will be 20% per annum as of February 1, 1982." Teamsters Local Union No. 48 v. Baker Bus Service, MLRB Case No. 79-70, at page 5 (1/25/82). -14- In addition to the above back pay and interest thereon which Respondents must pay to Complainants Holmes and Redican, the Respondents must provide to Holmes and Redican all the benefits to which each would have been entitled during the period of the lay-offs. These benefits are to include the accumu- lation of vacation and sick time, holiday pay, medical insurance, and seniority during said period. Once the Respondents have complied with the foregoing provision of back pay, interest, and benefits to Holmes and Redican, said employees will have been made whole and the policies of the Act will have been satisfied. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. Section 968(5), it is hereby ORDERED: That the Respondents Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission, their representatives and agents: 1. Cease and desist from: a) Discharging, laying-off, or otherwise discriminating against employees in the Old Orchard Beach Police Department because of their interest in, or activity on behalf of, the Union or any other labor organiza- tion. b) In any other manner interfering with, restraining, or coercing employees employed in the Old Orchard Beach Police Department in the exercise of the rights guaranteed them by 26 M.R.S.A. Section 963. 2. Take the following affirmative action necessary to effectuate the policies of the Act: a) Make Allen C. Holmes and Richard Redican whole for any loss of earnings or benefits incurred by being laid-off, during the periods noted in our decision and in the manner set forth in the section thereof entitled "Remedies." b) Post in the Old Orchard Beach Police Department, in such place as notices are normally posted for the attention of the regular full-time police officers thereof, copies of the attached "Notice." Copies of this notice, after being signed and dated by Jerome G. Plante, Town Manager of Old Orchard Beach and agent and/or representative of the Respondent Town of Old Orchard Beach, shall be posted immediately -15- upon receipt and shall be maintained for 30 consecutive days, at the place mentioned above. Reasonable steps shall be taken by the Town to ensure that this notice is not altered, defaced, or covered by any other material. c) Notify the Executive Director, in writing, within 20 days from the date of this order, what steps have been taken to comply with the order. 3. Thirty days after the date of this decision and order, if the parties have not agreed on the amount of back pay or benefits due to either of the employees, the Union may file with the Ex- ecutive Director and serve on the Town of Old Orchard Beach and on the Old Orchard Beach Public Safety Commission, for each worker whose back pay and benefits have not been agreed upon: 1. a weekly list of gross back pay claimed, 2. a weekly list of actual earnings from any and all employment during the back pay period, 3. a list of expenses incurred in seeking and holding interim employment, 4. a list of any benefits claimed, 5. interest claimed, and 6. documents and/or affidavits supporting each item. The Respondents will have fifteen days from such filing to re- spond with documents and/or affidavits bearing on each disputed item. The Board will thereafter issue a supplemental order for back pay, interest, and benefits due, or conduct such further proceedings as are necessary to supplement this Order. Dated at Augusta, Maine, this 27th day of September, 1982. MAINE LABOR RELATIONS BOARD The parties are advised /s/_______________________________________ of their right pursuant Donald W. Webber, Alternate Chairman to 26 M.R.S.A. Section 968(5)(F) to seek a review by the Superior /s/_______________________________________ Court of this decision Don R. Ziegenbein, Employer Representative by filing a complaint in accordance with Rule 80B of the Rules /s/_______________________________________ of Civil Procedure Harold S. Noddin, Employee Representative within 15 days after receipt of this deci- sion. -16- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT discharge, lay-off, or otherwise discriminate against regular full-time employees of the Old Orchard Beach Police Department because of their interest in or activity on behalf of the Union. (2) WE WILL NOT in any other manner interfere with, restrain or coerce regular full-time employees of the Old Orchard Beach Police Department in the exercise of their rights to engage in union activities. (3) WE WILL make Allen C. Holmes and Richard Redican whole for any loss of earnings or benefits incurred by their being laid-off, from September 12, 1981 to late November, 1981. (4) WE WILL, within 20 days of the Decision and Order notify, in writing, the Maine Labor Relations Board, at its offices in Augusta, Maine, of the steps we have taken to comply with the Decision and Order. TOWN OF OLD ORCHARD BEACH Dated _________________________________ By ________________________________ Jerome Plante, Town Manager _________________________________________________________________ This Notice must remain posted for 30 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333, Telephone 289- 2015. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-14 Issued: August 3, 1983 ___________________________________ ) ALLEN C. HOLMES, RICHARD REDICAN, ) and OLD ORCHARD BEACH POLICE ) PATROLMEN'S ASSOCIATION, ) ) Complainants, ) ) v. ) SUPPLEMENTAL ) DECISION AND ORDER TOWN OF OLD ORCHARD BEACH and ) OLD ORCHARD BEACH PUBLIC SAFETY ) COMMISSION, ) ) Respondents. ) ___________________________________) This is the damages phase of a prohibited practices proceeding. On September 27, 1982, the Maine Labor Relations Board ("Board"), pursuant to the authority granted to the Board by Title 26 M.R.S.A. 968(5), issued a Decision and Order in this proceeding. Said Decision and Order held that the Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission ("Employers") had violated 26 M.R.S.A. 964(1)(A) and (B) by dismissing and/ or laying-off Officers Allen C. Holmes and Richard Redican, by replacing them with part-time police officers and a part-time dispatcher, and by failing to offer Officers Holmes and Redican employment during the dismissal or lay-off period. The Board held that the Emplcyers' conduct, towards Officers Holmes and Redican, was motivated by the Employers' anti-union animus and that the Employers had failed to establish, by a preponderance of the evidence, that said conduct was justified by legitimate reasons. The Board ordered that the Employers: "Take the following affirmative action necessary to effectuate the policies of the Act: a) Make Allen C. Holmes and Richard Redican whole for any loss of earnings or benefits incurred by being laid-off, during the periods noted in our decision and in the manner set forth in the section thereof entitled 'Remedies.' " The Decision and Order also provided the following procedure for a Board determination of the net amount of back pay and benefits due: -1- "Thirty days after the date of this decision and order, if the parties have not agreed on the amount of back pay or benefits due to either of the employees, the Union may file with the Executive Director and serve on the Town of Old Orchard Beach and on the Old Orchard Beach Public Safety Commission, for each worker whose back Daly and benefits have not been agreed upon: 1. a weekly list of gross back pay claimed, 2. a weekly list of actual earnings from any and all employment during the back pay period, 3. a list of expenses incurred in seeking and holding interim employment, 4. a list of any benefits claimed, 5. interest claimed, and 6. documents and/or affidavits supporting each item. The Respondents will have fifteen days from such filing to respond with documents and/or affidavits bearing on each disputed item. The Board will thereafter issue a supplemental order for back pay, interest, and benefits due, or conduct such further proceedings as are necessary to supplement this Order." On or about February 8, 1983, counsel for the Complainants Holmes, Redican and the Old Orchard Beach Police Patrolmen's Association served a petition to determine amount of back pay and benefits due under M.L.R.B. Decision dated September 27, 1982 upon the Town of Old Orchard Beach and upon the Old Orchard Beach Public Safety Commission. Said petition discussed items 1 through 5 of the Board's above-cited Order. The Employers did not file any responsive documents and/or affidavits, bearing on each disputed item, with the Board. The parties were unable to agree on the amounts of back pay, benefits, and interest due and payable under the Board's Order of September 27, 1982. On or about March 10, 1983, counsel for the Complainants requested the Board to hold an evidentiary hearing on the Complainants' petition to deter- mine amount of back pay and benefits. A hearing was held on these issues on May 6, 1983, Alternate Chairman Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Complainants Holmes, Redican, and Old Orchard Beach Police Patrolmen's Association ("Union") were represented by Wendell G. Large, Esq. The Respondents Town of Old Orchard Beach and Old Orchard Beach Public Safety Commission were represented by F. Paul Frinsko, Esq. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. -2- JURISDICTION The Old Orchard Beach Police Patrolmen's Association is the exclusive bargaining agent, within the meaning of 26 M.R.S.A. 968(5)(B), for a bargaining unit of designated regular full-time employees of the Old Orchard Beach Police Department, including Allen C. Holmes and Richard Redican. Allen C. Holmes and Richard Redican were, at all times relevant hereto, public employees within the definition of 26 M.R.S.A. Section 962(6). The Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission are public employers as defined in 26 M.R.S.A. 962(7). The jurisdiction of the Maine Labor Relations Board to hear this case and to render this supplemental decision and order lies in 26 M.R.S.A. Section 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. The Board incorporates herein, by reference, the Findings of Fact, contained in its Decision and Order in this matter dated September 27, 1982 and numbered as paragraphs 1 through 41 thereof, with the same force and effect as if fully set forth herein. 2. During the period from September 12, 1981 through November 28, 1981, for Officer Holmes and from September 12, 1981 through November 25, 1981, for Officer Redican, Officers Holmes and Redican would have, but for the illegal conduct of the Employers, earned the following gross sums: Pay Period Ending Allen Holmes Richard Redican September 19, 1981 $ 262.64 $262.64 September 26, 1981 262.64 262.64 October 3, 1981 262.64 262.64 October 10, 1981 262.64 262.64 October 17, 1981 262.64 262.64 October 24, 1981 262.64 262.64 October 31, 1981 262.64 262.64 November 7, 1981 262.64 262.64 November 14, 1981 262.64 262.64 November 21, 1981 262.64 262-64 November 28, 1981 262.64 105.06 Total gross wages $2,889.04 $2,731.46 -3- 3. During the period noted in paragraph 2 hereof, Allen C. Holmes was unemployed and had no earnings from any employment source. During the interval, noted in paragraph 2 above as relating to him, Richard Redican earned approximately $120.00 in court attendance fees and had no other earnings. 4. That, during the relevant period for each employee as noted in paragraph 2 above, Allen Holmes and Richard Redican received unemployment insurance payments from the State of Maine. Richard Redican had to repay to the State of Maine a sum to offset the $120.00 which he received in court attendance fees while collecting unemployment. In the event that full back pay is ordered, both Redican and Holmes will have to repay the amount of unemployment benefits which each received, during the respective relevant intervals noted in paragraph 2, to the State of Maine. 5. Holmes and Redican did not incur any expenses in seeking and holding interim employment during the intervals, relevant to each of them, noted in paragraph 2, supra. 6. But for the illegal conduct of the Employers, Holmes and Redican would have received the following benefits, during the intervals relevant to each of them and outlined in paragraph 2 above: Holiday Pay Holiday Allen Holmes Richard Redican Columbus Day $ 52.53 $ 52.53 Veterans Day 52.53 52.53 Thanksgiving Day 52.53 Not applicable Day after Thanksgiving* 52.53 Not applicable Total $210.12 105.06 * Although the same is not listed as a paid holiday, in Article 7(A) of the relevant collective bargaining agreement, the day after Thanksgiving in 1981 was granted, by the Town of Old Orchard Beach, to all Town employees, therefore, making said day a paid holiday, under Article 7(E) of the afore- said collective bargaining agreement. Accummulated Sick Leave Month Beginning Allen Holmes Richard Redican October 1, 1981 1-1/2 days 1-1/2 days November 1, 1981 1-112 days 1-1/2 days Total 3 days 3 days 7. The collective bargaining agreement, between the Employer Town and the Union for the intervals listed in paragraph 2 hereof, provides as follows: -4- "Article 8 - SICK LEAVE E. When an employee resigns or retires from active service with the Town, the employee shall receive an amount equal to his salary at the time of his resignation or retirement for one-half the number of days accumulated unused sick leave to a maximum of fifty (50) days. . . . To qualify for this provision an employee must have worked in the department for a minimum of five years." 8. Sometime subsequent to having being reinstated as a police officer by the Employers, on November 25, 1983, Richard Redican resigned his employ- ment as a member of the Old Orchard Beach Police Department. At the time of his resignation, Richard Redican had been a member of said Department for less than five years. 9. During the intervals mentioned in paragraph 3 hereof, the Employers continued to pay Blue Cross and Blue Shield insurance premiums for coverage for Allen Holmes and Richard Redican. 10. During the relevant intervals noted in paragraph 2 hereof, the Employers paid a sum equal to 11.95% of each of their employees' gross earnings, as the Employers' contribution to the Maine State Retirement System. During the same interim, the Employers paid 6.65% of each of their employees' gross earnings, as the Employees' contribution to the Social Security Administration. U.S. Dept. of Health and Human Services, Social Security Adm., SSA Publication No. 05-10011. 11. Upon resigning employment as a municipal employee in the State of Maine, an employee may, at his option, withdraw whatever contribution he himself has made to the Maine State Retirement System. 12. Article 9, of the collective bargaining agreement mentioned in paragraph 7, supra, provides as follows: "Article 9 - SENIORITY A. A seniority list shall be established naming all the employees covered by this Agreement with the employee with the greatest seniority (years of service) listed first. Seniority shall be based upon the employee's last diate of hire. The list shall be made available to the Association. B. Seniority shall be the governing factor in all matters affecting: promotion, transfer, recall and vacation preference provided the employees are equally qualified. C. Seniority shall be the governing factor in reduction in work force." -5- 13. Article 10(A), of the collective bargaining agreement mentioned in paragraph 7, above, states: "Article 10 - ANNUAL VACATIONS A. Regular, full-time employees shall be allowed annual vacations with pay based upon the following schedule: After being employed one (1) continuous year = ten (10) days After being employed two (2) continuous years = twelve (12) days After being employed three (3) continuous years = fourteen (14) days After being employed four (4) continuous years = sixteen (16) days After being employed five (5) continuous years = eighteen (18) days After being employed ten (10) continuous years = twenty (20) days;" 14. On or about February 8, 1983, counsel for the Complainants Holmes, Redican, and the Old Orchard Beach Police Patrolmen's Association served a copy of the petition herein, containing an itemization of the back pay and benefits due to Holmes and Redican as per the Board's decision of September 27, 1982, upon the Town of Old Orchard Beach and upon the Old Orchard Beach Public Safety Commission. The parties were, from February 8, 1983 to May 6, 1983, unable to agree on the amounts of the aforesaid back pay and benefits due under the Board's order of September 27, 1982. 15. Wendell G. Large, Esq., the attorney for Complainants Holmes, Redican, and the Old Orchard Beach Police Patrolmen's Association, spent seven hours in researching and preparing the petition herein and in preparing and attending the Board hearing in this phase of the within proceedings. Mr. Large's firm, Richardson, Tyler and Troubh, bills his time, on matters involving public employees, at the rate of $55.00 per hour. DECISION At the outset of the hearing, on this phase of the instant prohibited practices proceeding, the Employers argued that this Board is without juris- diction, at this time, to grant the relief sought by the Complainants' petition to determine amount of back pay, due under M.L.R.B. decision dated September 27, 1982. The Employers contended that, since our initial decision in this case is presently being appealed in the Superior Court, that Court has gained full jurisdiction over this matter, thereby leaving the Board with no authority to act thereon. Furthermore, the Employers argued that, if this Board issues a supplemental decision in this matter, the result will be a "multiplicity of litigation with no real result that benefits either party until a decision on the merits can be had of the enforceability and lawfulness of the Board order." Transcript of hearing of May 3, 1983, at 12. Finally, the Employers averred that the damages in this case should be determined by the Superior Court and not by this Board. We reject the Employers' conten- tions. -6- The Board has, in this case, expressly reserved jurisdiction to determine the amount of damages, due to the Complainants Holmes and Redican and which resulted from the Employers' illegal conduct. Allen C. Holmes, et al. v. Town of Old Orchard Beach, et al., MLRB Case No. 82-14, at 16 (Sept. 27, 1982). Title 26 M.R.S.A. Section 968(5)(D) provides, during review of the Board's orders by the Superior Court, the following: "Upon application of any party in interest or the board, the court may grant such temporary relief or restraining order and may im- pose such terms and conditions as it deems just and proper; pro- vided that the board's decision shall not be stayed except where it is clearly shown to the satisfaction of the court that substan- tial and irreparable injury shall be sustained or that there is a substantial risk of danger to the public health or safety." The Complainants have never sought a stay of the Board's original order in this case. Transcript of hearing of May 3, 1983, at 11. In our prior decision in this matter, the Board allowed the parties a reasonable oppor- tunity to attempt to resolve the amount of damages. The parties have been unable to do so. The Board must now, therefore, discharge its responsibility under the Municipal Public Employees Labor Relations Act ("Act"), Title 26 M.R.S.A. Section 961, et seq. Section 968(5)(C) of the Act provides in relevant part as follows: "After hearing and argument if, upon a preponderance of the evi- dence 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." The Board has interpreted Section 968(5)(C) as follows: "One of our fundamental responsibilities in fashioning a remedial order pursuant to 26 M.R.S.A. 968(5)(C) is to seek '"a restoration of the situation, as nearly as possible, to that which would have obtained" but for the unfair labor practice.' Caribou School Dept. v. Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Teamsters Local Union No. 48 v. Baker Bus Service, MLRB No. 79-70, at 3 (Decision and Order on damages, Jan. 25, 1982). The Board has, therefore, under the authority of Section 968(5)(C) of the Act, been granted the pri- mary jurisdiction to "make whole" employees who have been the victims of Employer prohibited practices. The judicially created doctrine of primary -7- jurisdiction provides that this Board should determine the applicable remedies for violations of the Act. The Supreme Judicial Court has outlined said legal doctrine as follows: "We most recently discussed the doctrine of primary juris- diction in State ex rel. Brennan v. R.D. Realty Corp., Me., 349 A.2d 201, 206 (1975) where we stated that the doctrine 'determines whether the Court or the agency should make the initial decision.' The doctrine is designed to resolve the question of who should act first. Where the administration of a particular statutory scheme has been entrusted to an agency, the Court will postpone considera- tion of an action until the agency has made a designated determina- tion if such postponement will protect the integrity of the statu- tory scheme. United States v. Philadelphia Nat'l. Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); Thompson v. Texas Mexi- can Ry. Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed.2d 1132 (1946). The functions of the State Employees Appeals Board are within the scope of this doctrine." Woodcock v. Atlass, Me., 359 A.2d 69, 71 (1976). Section 968(5)(C) has vested this Board with the authority to award damages in the instant case. The Board, like the State Employees Appeals Board, Department of Mental Health and Corrections v. Bowman, Me., 308 A.2d 586, 587 (1973), is a quasi-judicial body, empowered to hold hearings, determine whether the Act has been violated, and to fashion remedies to correct said violations. State v. Maine Labor Relations Board, Me., 413 A.2d 510, 512 (1980). In this case the Board has not declined to exercise its primary jurisdiction to remedy the violations of the Act, committed by the Employers; but, rather, opted to allow the parties a reasonable opportunity to agree on the amount of damages, prior to exercising said primary jurisdiction. The Board, in this supplemental decision and order, will not modify any of the findings of fact or conclusions of law, contained in its decision and order of September 27, 1982 which is presently being reviewed by the Superior Court. This supplemental decision is being issued solely for the purpose of quantifying the back pay, benefits, and applicable interest due thereon, in accordance with our order of September 27, 1982. The Employers' second contention, that a supplemental decision and order herein will result in a multiplicity of litigation, is equally without merit. Once the amount of back pay and damages has been established herein, Section 968(5)(D) of the Act provides,in relevant part, as follows: -8- "If after the issuance of an order by the board requiring any party to cease and desist or to take any other affirmative action, said party fails to comply with the order of the board then the party in whose favor the order operates or the board may file a civil action in the Superior Court of Kennebec County, or the county in which the prohibited practice has occurred, to compel compliance with the order of the board. . . . In such action to compel compli- ance the Superior Court shall not review the action of the board other than to determine whether the board has acted in excess of its jurisdiction. If an action to review the decision of the board is pending at the time of the commencement of an action for enforcement pursuant to this subsection or is thereafter filed, the 2 actions shall be consolidated." It is clear, therefore, that the issuance of this supplemental order, during the pendency of the Superior Court's review of our decision on the merits herein, will allow the Court, upon proper complaint, to review both the merits and this back pay and benefits award simultaneously. Such consolidated review will conserve judicial time and effort. For all of the foregoing reasons, we hold that this Board continues to have jurisdiction over the back pay and benefits phase of this case. Turning to the issue of back pay, for Officers Holmes and Redican, the uncontroverted evidence before the Board is that, during the periods of lay- off and/or dismissal, Officer Holmes lost $2,889.04 in gross wages. During the lay-off period relevant to him, Officer Redican lost $2,731.46. The evidence is also uncontroverted that, during said intervals, neither Officer Holmes nor Officer Redican earned any other income. To make said employees "whole," we will order the Employers to pay Officer Holmes the sum of $2,889.04, together with the applicable interest thereon, and we will order the Employers to pay the sum of $2,731.46, together with the applicable interest thereon, to Officer Redican. Although we are aware that both Officers Holmes and Redican received unemployment compensation for part of the intervals in question, we will not reduce the amount of our back pay order by the amount of said unemployment compensation received. Officers Holmes and Redican will have to repay that portion, of said unemployment benefits which each received, which is required to be repaid by the Bureau of Employment Security of the Maine Department of Labor, from their respective back pay awards. During their respective lay-off and/or dismissal periods, Officer Holmes lost holiday pay for Columbus Day, Veterans Day, Thanksgiving Day, and the day after Thanksgiving, 1981, and Officer Redican lost holiday pay for Columbus Day and Veterans Day, 1981. The uncontroverted evidence is that Officer Holmes lost -9- $210.12 and that Officer Redican lost $105.06 in holiday pay, during the lay- off and/or dismissal period. To remedy the Employers' violations of the Act herein, we will order the Employers to pay the sum of $210.12, together with the interest applicable thereto, to Officer Holmes and order the Employers to pay to Officer Redican the sum of $105.06, together with the interest applicable thereto. But for the Employers' violations of the Act, Officer Holmes would have accumulated 3 days of sick leave, during the relevant lay-off and/or dismissal period. To make Officer Holmes "whole," we will order the Employers to credit Officer Holmes' accumulated sick leave record with three additional days, to compensate him for the sick leave days lost as a result of the Employers' violative conduct. Since Officer Redican has left the employ of the Old Orchard Beach Police Department with less than five years' service, he was, under the terms of the applicable collective bargaining agreement, unable to "cash in" his accumulated sick leave days upon his resignation. We will, therefore, not make any order relevant to Officer Redican's lost sick leave days accumulation. Under the relevant collective bargaining agreement, between the Employer Town and the Complainant Union, seniority, in terms of years of service, is a determining factor for several conditions of employment. Pursuant to said collective bargaining agreement, the vacation accumulation, for the employees covered thereby, is determined by reference to each employee's "continuous years" of service with the Old Orchard Beach Police Department. But for the Employers' violation of the Act, Allen C. Holmes would have been employed by said Department during the interval from September 12, 1981 to November 28, 1981. To return the situation to that which would have accrued but for the Employers' illegal conduct, we will order the Employers to consider Allen C. Holmes as having been employed continuously with the Old Orchard Beach Police Department during the aforementioned interval, for seniority and vacation accumulation purposes. We will not make such an order relevant to Richard Redican since he has resigned his employment with the Old Orchard Beach Police Department. The interest due and payable, on the monetary sums due to Officers Holmes and Redican and noted above, will be calculated with our standard formula therefor, as set forth in Council 74, AFSCME v. City of Bangor, MLRB No. 80-41 (Sept. 24, 1980), aff'd., City of Bangor v. AFSCME, Council 74, Me., 449 A.2d 1129 (1982). In Council 74, AFSCME v. City of Bangor, we stated: -10- "Back pay for the 5 employees is to be computed in the manner prescribed in F.W.Woolworth Co., 90 N.L.R.B. 289 (1950). Loss of pay thus is to be computed on the basis of each separate calendar quarter or portion thereof during the period from the City's un- lawful actions to the dates of proper offers of reinstatement to Prescott, Standley and Henderson, and proper placement of Bragg and Strout at the salary rates and benefit levels to which they arp entitled. The quarterly periods shall begin with the first day of January, April, July, and October. Loss of pay is to be determined by deducting from a sum equal to that which each worker should have earned for each such quarter or portion thereof, the net earnings, if any, from other employment during that period. Net earnings means earnings less expenses, such as for transportation and room and board, incurred by the employees in connection with obtaining other work and working elsewhere than for the City during the quarters in question. Earnings in one particular quarter shall have no effect on the back pay liability for any other quarter. The amount of back pay due Bragg, Prescott, Standley and Strout shall include the approximately 20 minutes which each spent at the October 26th meeting after work. "Interest on the back pay is to be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see also NLRB v. George E. Light Board Storage, Inc., 373 F.2d 762, 766 (5th Cir. 1967). Thus interest is to accrue commencing with the last day of each calendar quarter of the back pay period on the total amount then due and owing at the adjusted prime interest rate then in effect, and continuing at such rate, as modified from time to time by the Secretary of the Treasury, until the City has complied with this order." MLRB No. 80-41, at 11. The adjusted prime interest rates, for the relevant periods and as modified by the Secretary of the Treasury are as follows: February 1, 1980 through January 31, 1982, 12 percent a year; February 1, 1982 through December 31, 1982, 20 percent a year; January 1, 1983 through June 30, 1983, 16 percent a year; and beginning July 1, 1983, 11 percent a year. The specific interest calculations, for each employee, are included as Appendix A, which is attached hereto, made a part hereof, and incorporated herein by reference. As of August 1, 1983, the gross amount of back pay and benefits, together with the interest applicable thereto, for each of the affected employees was $4208.81 for Allen C. Holmes and $3852.52 for Richard Redican. We will order the Employers to pay to Allen C. Holmes the sum of $4208.81, less the normal payroll deductions for federal and state income tax, Social Security with- holding tax, and for the employee's contribution to the Maine State Retirement System. The Employers must also pay, to the Maine State Retirement System, the Employers' contribution to that fund, on behalf of Allen C. Holmes, for the period from September 12, 1981 to November 28, 1981. We will order the Employers to pay to Richard -11- Redican the sum of $3852.52, less the normal payroll deductions for federal and state income tax and for Social Security withholding tax. Since Richard Redican is no longer employed by the Employers nor is he now engaged in employment covered by the Maine State Retirement System, no deductions are to be made, from the sum to be paid to Richard Redican, for the employee's contribution to the Maine State Retirement System. The applicable interest, on the back pay and benefits, will continue to accumulate, at the adjusted prime interest rate as determined and modified by the Secretary of the Treasury of the United States and applied according to the formula used in this decision, until such time as actual payment of back pay, benefits, and interest is made by the Employers to Complainants Holmes and Redican. This order for back pay and benefits, together with the interest applicable thereto, will effectuate the policies of the Act by restoring the situation, as nearly as possible, to that which would have accrued, but for the Employers' violation of the Act. The final issue before the Board, in this phase of the within proceed- ings, is whether we should award the Complainants their counsel fees, for the preparation and the prosecution of their petition to determine amount of back pay and benefits due under our prior decision in this case. The Board has awarded attorney's fees in the past, when the circumstances before the Board warranted such an order. Westbrook Police Unit of Local 1824, Council 74, AFSCME v. City of Westbrook, MLRB No. 78-25, at 9 (Sept. 5, 1978). Such a remedy has been granted where the interests of justice demanded the same and where it was held to be necessary to effectuate the policies of the Act. M.S.A.D. #68 Teachers Ass'n. v. M.S.A.D. #68 Board of Directors, MLRB No. 79-22, at 7 (Jan. 24, 1979). We believe that, in this phase of the proceed- ings on this case, it is necessary that we order the Employers to pay to the Complainants' attorney his reasonable counsel fees for the preparation and litigation of their petition. We did not order the Employers to pay the Complainants' counsel fees, incurred previously in this case, because the Employers' defense, in the case on the merits, was meritorious, on its face, and not clearly frivolous. Had the Employers been able to establish, by a preponderance of the evidence, that Holmes and Redican were laid-off because of legitimate financial pressures, the Employers would not have been found in violation of the Act. The circumstances in this phase of the proceedings, however, are different. Under our previous decision in this case, the Complainants were to serve upon the Employers an itemized listing of back pay and benefits due to Holmes and to Redican. On or about February 8, -12- 1983, counsel for the Complainants served such a list upon the Employers and their attorney. The parties were then to attempt to agree on the amount of back pay or benefits due to either of the employees, under the terms of our prior order. From February 8, 1983 through May 6, 1983, the date of the Board's hearing hereon, the parties were unable to reach such agreement. While appreciating that the Employers probably did not wish to render the back pay and benefits to Holmes and Redican, while our prior decision and order was on appeal in the Courts; the Employers' representatives could have reached agreement with the Complainants on the amount of back pay and benefits due. Payment of said back pay and benefits could, then, have been made contingent upon the results of the judicial review of our decision and order on the merits of this case. At the hearing which preceded this decision and order, the Employers presented no evidence to refute, obviate or to otherwise mitigate the Complainants' claim for back pay and benefits, other than to indicate that Holmes' and Redican's Blue Cross/Blue Shield benefits had remained in full force, during the lay-off and/or dismissal periods. This could readily have been accomplished informally between the parties. Since the Employers presented virtually no relevant countervailing evidence at the hearing on this phase of this proceeding, we hold that the interests of justice and the policies of the Act demand that the Employers pay to Complainants' counsel his reasonable fees for the preparation and litigation of the Complainants' petition herein. We find that Complainants' counsel's expenditure of seven hours to prepare and to litigate said petition is reasonable. We also find,without thereby intimating a minimum or a maximum reasonable attorney's fee therefor, that Complainants' counsel's fee of $55.00 per hour, for his efforts in this phase of this case, was reasonable. We will, therefore, order the Employers to pay to Wendell G. Large, Esq., the sum of $385.00, as a reasonable attorney's fee in this case. ORDER On the basis of the foregoing findings of fact and decision,, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(5), it is ORDERED that the Town of Old Orchard Beach and the Old Orchard Beach Public Safety Commission shall: 1. Reimburse Allen C. Holmes, immediately, for all of the back pay, -13- benefits, and interest due thereon, for the period from September 12, 1981 to November 28, 1981, less the normal payroll deductions for federal and state income tax, for Social Security withholding tax, and for the employee's contribution to the Maine State Retire- ment System. As of August 1, 1983, the total gross sum of back pay, benefits, and interest due to Allen C. Holmes, prior to the above deductions being made, was $4208.81. 2. Pay, to the Maine State Retirement System, the Employers' contri- bution to that fund, on behalf of Allen C. Holmes, for the period from September 12, 1981 to November 28, 1981. 3. Reimburse Richard Redican, immediately, for all of the back pay, benefits, and interest due thereon, for the period from September 12, 1981 to November 25, 1981, less the normal payroll deductions for federal and state income tax and for Social Security with- holding tax. As of August 1, 1983, the total gross sum of back pay, benefits, and interest due to Richard Redican, prior to the above deductions being made, was $3852.52. 4. Immediately, pay to Allen C. Holmes and to Richard Redican the applicable interest, on the back pay and benefits due. Said applicable interest will continue to accumulate, at the adjusted prime interest rate as determined and modified by the Secretary of the Treasury of the United States and applied according to the formula used in the above decision, until such time as actual payment of back pay, benefits, and interest is made to Allen C. Holmes and to Richard Redican. 5. Three (3) additional sick leave days are to be credited to the accumulated unused sick leave records of Allen C. Holmes. 6. Consider Allen C. Holmes as having been employed continuously with the Old Orchard Beach Police Department, during the interval from September 12, 1981 to November 28, 1981 and without a break in the continuity of his service with said Department before and subsequent to said interval, for seniority and vacation accumu- lation purposes. 7. Pay to Wendell G. Large, Esq., Counsel for the Complaintants his fee of $385.00, incurred in preparing the Complainants' petition to determine amount of back pay and benefits due in this case and in litigating said petition before the Board. -14- Dated at Augusta, Maine, this 3rd day of August, 1983. MAINE LABOR RELATIONS BOARD /s/______________________________________ Donald W. Webber Alternate Chalrman /s/_______________________________________ Don R. Ziegenbein, Employer Representative /s/_______________________________________ Harold S. Noddin, Employee Representative The parties are advised of their right, pursuant to Title 26 M.R.S.A. Section 968(5)(F), to seek review of this decision by the Superior Court by filing a complaint in accordance with Rule 80B of the Rules of Civil Procedure within 15 days after receipt of this decision. -15- APPENDIX A Calculation of Back Pay, Benefits, and Applicable Interest Thereon Back Pay, Benefits, and Applicable Interest for Allen C. Holmes Quarterly period ending: September 30, 1981 Lost wages: $525.28 Interest rate: 12% per year Interest calculation: 12% (525.28) x 18 days/365 days = 3.11 Total due $528.39 December 31, 1981 Carried forward: $ 528.39 Lost wages: 2,363.76 Lost holiday pay: 210.12 Total lost 3,102.27 Interest rate: 12% per year Interest calculation: 12% (3102.27) x 92/365 = 93.83 Total due $3,196.10 March 31, 1982 Carried forward: $3,196.10 Interest rate: (1/1/82-1/31/82) 12% per year (2/l/82-3/31/82) 20% per year Interest calculation: [12% (3196.10) x 31/365] +[20% (3196.10) x 59/365] = 135.90 Total due $3,332.00 June 30, 1982 Carried forward: $3,332.00 Interest rate: 20% per year Interest calculation: 20% (3332.00) x 91/365 = 166.14 Total due $3,498.14 September 30, 1982 Carried forward $3,498.14 Interest rate: 20% per year Interest calculation: 20% (3498-14) x 92/365 = 176.34 Total due $3,674.48 December 31, 1982 Carried forward: $3,674.48 Interest rate: 20% per year Interest calculation: 20% (3674.48) x 91/365 = 183.22 Total due $3,857.70 A-1 March 31, 1983 Carried forward: $3,857.70 Interest rate: 16% per year Interest calculation 16% (2857.70) x 90/365 = 152.19 Total due $4,009.89 June 30, 1983 Carried forward: $4,009.89 Interest rate: 16% per year Interest calculation 16% (4009.89) x 91/365 = 159.96 Total due $4,169.85 August 1, 1983 Carried forward: $4,169.85 Interest rate: 11% per year Interest calculation 11% (4169.85) x 31/365 = 38.96 Total Back Pay and Benefits, plus interest, due on August 1, 1983 $4,208.81 Back Pay and Benefits for Richard Redican September 30, 1981 Lost wages: $ 525.28 Interest rate: 12% per year Interest calculation 12% (525.28) x 18/365 = 3.11 Total due $ 528.39 December 31, 1981 Carried forward: $ 528.39 Lost wages: 2,206.18 Lost holiday pay: 105.06 Total lost: $2,839.63 Interest rate: 12 % per year Interest calculation 12% (2839.63) x 92/365 = 85.89 Total due $2,925.52 March 31, 1982 Carried forward: $2,925.52 Interest rate: (1/l/82-1/31/82 12% per year) (2/11/82 - 3/31/82 20% per year) Interest calculation [12% (2925-52) x 31/3651 + [20%(2925-52) x 59/365] = 124.40 Total due: $3,049.92 June 30, 1982 Carried forward: $3,049.92 Interest rate: 20% per year Interest calculation 20% (3049.92) x 91/365 = 152.08 Total due $3,202.00 A-2 September 30, 1982 Carried forward: $3,202.00 Interest rate: 20% per year Interest calculation 20% (3202.00) x 92/365 = 161.42 Total due: $3,363.42 December 31, 1982 Carried forward: $3,363.42 Interest rate: 20% per year Interest calculation 20% (3363.42) x 91/365 = 167.71 Total due: $3,531.13 March 31, 1983 Carried forward: $3,531.13 Interest rate: 16% per year Interest calculation 16% (3531-13) x 90/365 = 139.31 Total due: $3,670.44 June 30, 1983 Carried forward: $3,670.44 Interest rate: 16% per year Interest calculation 16% (3670.44) x 91/365 = 146.42 Total due: $3,816.86 August 1, 1983 Carried forward: $3,816.86 Interest rate: 11% per year Interest calculation 11% (3816.86) x 31/365 = 35.66 Total Back Pay and Benefits, plus interest, due on August 1, 1983 $3,852.52 A-3