Teamsters v. Town of Winthrop and Charles H. Jackson, Police Chief, 
No. 84-06, aff'd.  Inhabitants of the Town of Winthrop and Charles Jackson, 
Police Chief v. MLRB and Teamsters, CV-84-538 (July 11, 1985).

                                          Case No. 84-06
                                          Issued:  November 16, 1984
State, County, Municipal and       )
University Employees in the        )
State of Maine,                    )
                 Complainant,      )
             v.                    )           DECISION AND ORDER
TOWN OF WINTHROP                   )
            and                    )
CHARLES H. JACKSON, Police Chief   )
of the Town of Winthrop,           )
                 Respondents.      )

     This is a prohibited practice case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B) on September 12, 1983, by Teamsters Local Union No.
48 ("Union").  The Union's complaint alleges that the Town of Winthrop
("Employer"), acting by and through its Chief of Police, has violated
26 M.R.S.A. Sections 964(1)(A), (B), (C), (D), and (E) by taking cer-
tain actions tending to discriminate against certain Winthrop Police
Department employees because of their membership and activities in the
Union.  The Union filed an amended complaint on November 22, 1983,
adding to the original charges an allegation that the Employer
violated 26 M.R.S.A. Section 964(1)(D) by suspending two of its
employees, indefinitely and without pay, because one of them had given
testimony before the Labor Relations Board ("Board").  On February 29,
1964 the Union filed a second amended complaint alleging therein that
the Employer had violated 26 M.R.S.A. Section 964(1)(D) by discharging
the two employees who had previously been suspended.  All of said
complaints have been consolidated for hearing.  The Town of Winthrop
and Chief Jackson (hereinafter referred to together as "Employer")
filed answers to the original and the first amended complaints on

September 29, 1983 and November 28, 1983 respectively.  The Employer's
answers denied that it had violated any section of 26 M.R.S.A.,
Section 961, et seg., prayed that the Union's complaint, as amended,
be dismissed, and sought to recover its attorney's fees and costs.
Since the Union's second amended complaint was filed during the last
day of the hearing on the merits, the Board allowed the amendment and
deemed the Employer to have answered and denied the violations of the
Act alleged therein.
     A pre-hearing conference was held on October 11, 1983, Alternate
Chairman Donald W. Webber presiding.  On that date the Alternate
Chairman issued a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
     Public hearings were conducted on October 26, November 10,
December 1, 5, 6 and 22, 1983, and January 9, 10, 13, 23, February 1,
28, and 29, 1984 by said Alternate Chairman, Employer Representative
Thacher E. Turner and Employee Representative Harold S. Noddin.  The
Union was represented by its Secretary-Treasurer, Walter J. Stilphen,
Jr., and the Employer was represented by Lee K. Bragg, Esq.  The par-
ties were afforded full opportunity to examine and cross-examine wit-
nesses, to present evidence and to make argument.  The parties filed
post-hearing briefs which have been considered by the Board.


     The Union is the bargaining agent, as defined by the Act, for two
bargaining units of employees of the Winthrop Police Department.  One
such unit is composed of the Patrolmen and Dispatchers and the other
consists of the Corporals.  The Town of Winthrop is the public
employer within the definition of 26 M.R.S.A. Section 962(7) of these
employees.  At all times relevant hereto Charles H. Jackson has been
the Chief of Police and an agent of said Town.  Since the acts alleged
concerning Jackson are said to have arisen out of and been performed
by him in the course of his employment by the Town, Jackson is a
public employer of said employees.  The jurisdiction of this Board to
hear this case and to render a decision and order therein lies in 26
M.R.S.A. Section 968(5).


     The collective bargaining agreement negotiated by the parties pro-
vided a familiar method of filing and resolving grievances.  They were
to be filed with the Chief of Police at the first step and, if not
there resolved, appealed to the Town Manager.  Arbitration was pro-
vided as a final step.  During the period between certification of the
bargaining agent in 1980 until he terminated his employment on
April 4, 1983, Officer Seth Higgins served as Shop Steward.  During
that time he filed between 30 and 40 grievances, about half of which
involved Higgins himself as the grievant.  None of these grievances
was resolved at the first level but all were ultimately resolved
without resort to arbitration.  During this period the personal rela-
tionship between Higgins and the Chief steadily deteriorated, Higgins
being convinced that the Chief arbitrarily refused to take grievances
seriously, and the Chief being equally convinced that Higgins hoped
through an excessive use of the grievance machinery to drive him from
     Jackson came to the Winthrop post with some prior experience as a
union member in earlier employment.  He had even served as a shop
steward.  Thus he had a better understanding of unions and their
proper role than do many management people, and he came to Winthrop
without a preconceived hostility towards unions.  On the other hand,
he attached great importance to personal loyalty to himself, a fact
which he impressed upon members of the Department in private conver-
sations.  He was frequently visibly irritated and disturbed by what
appeared to him to be manifestations of loyalty to the Teamsters Union
which exceeded personal loyalty to himself.
     The influence of Higgins upon the attitude of Jackson toward the
Union cannot be overstated.  An intense personal hostility developed
between these two men.  Since Higgins was the visible presence of the
Union in action, it gradually followed that what had started as a per-
sonal vendetta produced in Jackson strong anti-union feelings of which
he was not himself consciously aware.  When he tells us in sworn
testimony that he disliked Higgins personally but entertained no anti-
union bias, he genuinely believes that was the true state of his


feelings--but he is honestly mistaken as to that.
     The other person involved with labor relations on the management
side was the Town Manager.  Even though we find no evidence that he
had anything but an objective and dispassionate view of Union repre-
sentation in the Department, we conclude that his instinctive loyalty
to his Chief plays a part.  A primary issue in this case involves the
suspension by the Chief and subsequent discharge by the Manager of
Officer Pullen and Corporal Cookson, hereinafter discussed.  If the
suspensions were tainted by Jackson's unrecognized anti-union
feelings, an act by the Manager in effect supporting the Chief and in
part motivated by loyalty to him also became tainted.  We conclude
that in this most unusual situation, involving as it does the
complexities of human emotions, a latent and unrecognized anti-union
bias became one motivating factor in the disciplinary action of
suspension and discharge.
     In these circumstances, as in our prior decisions, Holmes v. Town
of Old Orchard Beach, MLRB No. 82-14 (Sept. 27, 1982), aff'd. Town of
Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Association,
York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983); Teamsters Local
48 v. Town of Wells, MLRB No. 84-29 (Oct. 9, 1984), we apply the test
enunciated in Wright Line v. Lamoureux, 251 N.L.R.B. 1083 (1980) (the
so-called Wright test).  N.L.R.B. v. Transportation Management Corp.,
___ U.S.___, 103 S. Ct. 2469, 76 L.Ed.2d 667 (1983).  We ascertain
first whether anti-union bias was a motivating factor in the action
taken.  If not, the disciplinary actions stands.  But if so, we deter-
mine whether the same action was justified and would have been taken
in any event.  We turn now to the second prong of the Wright test.  We
must determine whether or not Pullen and Cookson, or either of them,
would have been discharged, absent any trace of anti-union motivation.
     Pullen's discharge was based entirely upon his filing of false
information with public agencies in connection with his work as an
instructor in Emergency Medical Technician (EMT) training.  If proved
beyond a reasonable doubt in a court of competent jurisdiction, such
conduct would constitute "unsworn falsification," made a Class D crime
by 17A M.R.S.A. Section 453.  Pullen has never been charged or tried


criminally on this charge.  For technical reasons it was to Pullen's
advantage to have it appear that he intended to conduct a formal
course of instruction on February 1, 2 and 3, 1983, and subsequently
that he had in fact given the instruction on those dates.  No such
course was given at that time.  During a period extending to
February 9, 1983, Pullen and Cookson discussed from time to time some
course requirements where it was deemed that Cookson should place some
emphasis in preparation for a subsequent examination.  From
February 14 to March 14, 1983, Pullen gave the formal course to a
group which included Leonard Bates, a Winthrop police officer, and his
wife.  On the basis of the false reports submitted, the Kennebec
Valley Vocational Technical Institute issued certificates of comple-
tion to Pullen, Cookson, Officer Bates and Mrs. Bates, all dated back
to February 3, 1983.  Leonard Bates, as Chief of Service of the
Monmouth Rescue Unit, certified Cookson as being affiliated with that
Unit.  Such affiliation was essential to Cookson if he was to obtain a
renewal of his license as an EMT.  In fact Cookson had never had any
affiliation with the Monmouth Unit.
     Apart from the rendering of false reports, Pullen is an
experienced and competent instructor.  What he did, in effect, was to
provide a shortcut to continuation of his status as an instructor and
that of his friend Cookson as a licensed technician.  The result could
have been obtained by proper methods but they would have taken con-
siderably more time.  On the other hand, Pullen's falsification of
records has not produced technicians who would constitute a danger to
the public.  All of his students passed the State examination credit-
ably and must be considered competent technicians.  Pullen's manipu-
lation of public records is, of course, highly improper and
inexcusable, especially for a police officer.  In our view such con-
duct deserves and requires some disciplinary action.  This being a
first offense and no harm to the public having resulted, discharge
appears to be unnecessarily severe.
     Moreover, there are other factors which must be considered and
which militate against discharge as appropriate discipline for Pullen.
     Union affiliation can be easily discouraged and chilled by any
marked disparity in disciplinary action as between union and non-union

personnel.  The most serious single violation of duty and respon-
sibility brought to our attention involved a dispatcher who was found
sleeping at his post.  There is persuasive evidence that for a
substantial period of time the citizens of Winthrop were without any
means of obtaining police assistance.  Every member of the Department
was aware of two significant facts: the dispatcher received only an
oral reprimand, and the dispatcher was not a union member.  Rightly or
wrongly, the perception of employees in such a case is that these two
facts are related and the result can be and frequently is a chilling
effect on union affiliation.
     Leonard Bates allowed his name to be included as a participant in
the non-existent EMT course and issued the false certificate of affil-
iation, as above noted.  Members of the Department would understand-
ably conclude that because he was not a Union member Bates received no
discipline whatever, while Pullen for his actions was discharged.
     One further consideration bears on the result this Board must
reach in assessing the justification for the Pullen discharge.  In the
course of giving testimony Pullen became highly emotional and
expressed his conviction that he would be discharged in retaliation
for being a witness adverse to the Employer.  The Chairman, with the
tacit approval of the Board members, assured Pullen that the Board
could and would protect any witness who was subjected to retaliatory
action for testifying.  Before the next session of the hearing, Pullen
had been subjected to severe discipline.  As might be expected, the
Employer asserts that Pullen was "putting on an act" and was not sin-
cere in his concern over possible retaliatory action.  But, whether
that is true or not, the timing of disciplinary action was atrociously
thoughtless and ill conceived in view of the Board's assurances of
protection.  The perception of the public would surely be that this
Board makes vain and idle promises to protect witnesses from reta-
liatory action which it does not keep.  This is disruptive of the very
process by which the Board seeks to deal justly with both employers
and employees.  It must be noted, however, that the Board's assurance
of protection was related only to retaliatory action for testifying
and was not intended to provide the officer with a guarantee of


immunity from the consequences of his own violations of duty.
     We find that anti-union bias influenced the extent of the
disciplinary action imposed in Pullen's case.  We conclude, however,
that his conduct was such that some disciplinary action was required
and proper and would have occurred regardless of any improper motiva-
tion on the part of management.  In the light of the examples given
above involving non-union personnel, we conclude further that he would
not have been discharged if he had had no union affiliation.  The
discharge must therefore be set aside and reduced to suspension
without pay for a period of three weeks.  He becomes entitled to back
pay from the end of the suspension period, with interest, to the date
when he is offered a return to duty.  Credit will be given for any
benefits earned during the interim.  Such a suspension is itself a
severe disciplinary action and constitutes adequate punishment, absent
any anti-union motivation, for what was clearly a serious infraction
of proper police conduct.
     The case of Cookson is quite different.  Although the decision of
management stressed only his participation in the falsification of EMT
records, that event was but the last in a long series of episodes in
which he demonstrated an inability to adhere strictly to the truth.
This weakness manifested itself when fabrication might assist in
achieving a desired result, as in the affair of the EMT records, and
in cases where the truth might bring blame, discredit or other adverse
consequences.  It is essential that a police officer deserve the repu-
tation that what he says can be believed.  His superiors, his fellow
officers and the public must have confidence that they can trust his
word.  We noted evidences of Cookson's problem with the truth during
the course of his sworn testimony before the Board, some of which was
far from persuasive.  We do not here encounter the problem of
disciplinary action in retaliation for the giving of testimony adverse
to the Employer's interest since the disciplinary action preceded his
testimony.  We find that Cookson's conduct over a substantial period
of time, culminating in the EMT affair, has demonstrated that he is
not suited to police duty in Winthrop.  We conclude that his discharge
was proper and would and should have occurred regardless of any anti-


union motivation.

     The Complainant Union, having demonstrated that the Respondent,
whether consciously or subconsciously, has entertained anti-union
feelings which have affected some of its decisions and produced some
discrimination in favor of non-union personnel, is accordingly
entitled to a cease and desist order in the usual form.  With specific
reference to the statute, we find violations of Section 964 of the Act
as noted above.  The remedies contained in the following order are
needed to remedy the violation of the Act found herein and to effec-
tuate the policies of the Act.


     Pursuant to the powers granted to the Maine Labor Relations Board
by 26 M.R.S.A. Section 968(5), it is accordingly ORDERED:

     1. That the Respondent Town of Winthrop, its representatives
        and agents cease and desist from:
        (a)  Discriminating against employees of the Winthrop
             Police Department because of their interest in
             or activity on behalf of the Complainant Union
             or any other labor organization.

        (b)  In any other manner interfering with, restraining
             or coercing employees employed in the Winthrop
             Police Department in the exercise of the rights
             guaranteed them by 26 M.R.S.A. Section 963.

     2.  That the discharge of officer Fred Pullen effective
         December 13, 1983 is set aside and the suspension without
         pay ordered on October 28, 1983 is hereby limited to a
         period of three weeks terminating on November 18, 1983.
     3.  That the Respondent Town of Winthrop pay to said Pullen
         the sum he would have earned from and after November 18,
         1983, from which will be deducted his net earnings from
         other employment as defined in Holmes, et al. v. Town
         of Old Orchard Beach, et al., (1982) M.L.R.B. Case No.
         82-14; together also with interest on said sum computed
         as set forth in said Board decision.

     4.  That said Respondent post in the Winthrop Police Depart-
         ment 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 the Town Manager

         of Winthrop, agent and/or representative of said
         Respondent, shall be posted immediately upon receipt and
         shall be maintained for 30 consecutive days at the place
         mentioned above.  Reasonable steps shall be taken by the
         Respondent to ensure that this notice is not altered,
         defaced or covered by any other material.

     5.  Notify the Executive Director in writing within 20 days
         from the date of this order as to what steps have been
         taken to comply with the order.

    6.  If within 30 days after the date of this decision and
        order the parties have not agreed on the amount of back
        pay (or net benefits) due to Fred Pullen, the parties
        shall proceed in the manner set forth by this Board in
        Case No. 82-14.

    Dated at Augusta, Maine, this 16th day of November, 1984.

                                      MAINE LABOR RELATIONS BOARD

    The parties are advised of
    their right pursuant to
    26 M.R.S.A. Sec. 968(5)(F)        ____________________________
    (Supp. 1983-84) to seek           Donald W. Webber
    review of this decision           Alternate Chairman
    and order by the Superior
    Court by filing a complaint
    in accordance with Rule 80B
    of the Rules of Civil Pro-        ____________________________
    cedure within 15 days of          Thacher E. Turner
    the date of this decision.        Employer Representative

    Employee Representative Harold S. Noddin filed a dissenting opinion.


                          DISSENTING OPINION
     The majority of the Board, while utilizing the correct legal stan-
dard in analyzing the Employer's violations of Sections 964(1)(A) and
(B), have reached a result which is contrary to the evidence in this
case.  My colleagues have committed an error of law in failing to
properly consider the evidence which established that the Employer
violated Section 964(1)(D) of the Act.  Finally, the majority opinion
does not provide adequate remedies to rectify the violations of the
Act by the Employer herein.
     As the majority has indicated, this is a dual-motive discharge
case.  In such cases, we have, since its adoption in Holmes v. Town of
Old Orchard Beach, supra, consistently applied the Wright Line test.
The use of said standard, in the analogous private sector context, has
been approved by the Supreme Court of the United States.  N.L.R.B. v.
Transportation Management Corp., supra.  The Board's interpretation of
the Wright Line test has been that, in order to establish unlawful
discrimination and, hence, illicit interference or coercion, the
Complainant must prove, by a preponderance of the evidence, that con-
duct protected by the Act was a motivating factor for the actions
taken by an employer against an employee. once such a prima facie
case is established and the employer is unable to rebut it, the
employer can avoid being adjudicated of having violated the Act by
proving, by a preponderance of the evidence, that it would have taken
the same actions in the absence of any protected conduct.  Ross v.
Portland School Committee, MLRB No. 83-04, at 22 (Aug. 29, 1983);
Ritchie v. Town of Hampden, MLRB No. 83-15, at 5-6 (July 18, 1983),
aff'd. sub nom., Town of Hampden v. Maine Labor Relations Board,
Penobscot Super. Ct., Docket No. CV-83-353 (Sept. 14, 1984).  I agree
with the majority that the facts cited in their opinion clearly
establish that the Employer was motivated by anti-union animus, in
violation of Sections 964(1)(A) and (B), in suspending and discharging
Cpl. Cookson and Officer Pullen.  Under the second prong of the Wright
Line test, I disagree with the majority in that I believe that the
facts in this case demonstrate that Cookson and Pullen would have
neither been suspended nor discharged, if they had not engaged in
activities protected by the Act.


     I will first discuss Officer Pullen's situation.  At page 5 of
their decision, the majority stated that "[f]or technical reasons it
was to Pullen's advantage to have it appear that he intended to con-
duct a formal course of instruction on February 1, 2 and 3, 1983, and
subsequently that he had in fact given the instruction on those
dates."  To set the record straight, I will clarify both the
"technical reasons" referred to by the majority and the fact that
Pullen received no personal gain from his actions.  Prior to February
of 1983, Pullen had performed extensive emergency medical work, on an
exclusively volunteer basis, for the Monmouth Rescue Unit.  In order
to serve in that capacity, one must, annually, be licensed as an
Emergency Medical Technician ("EMT") by the Maine Department of Human
Services.  During January of 1983, Pullen, then a 14-year veteran EMT,
learned that the Department of Human Services would no longer routine-
ly extend EMT licenses for those licensees who were actively engaged
in qualifying for such renewal; Pullen's license was to expire on
January 31, 1983.  The Department of Human Services did, however,
extend Pullen's EMT license to allow him to teach an EMT refersher
course but not to perform emergency services.  Since the only gain
Pullen received from his EMT license was the payment he received for
teaching the February 14 to March 14, 1983 course and since his
license had been extended by the State for that purpose, the only
possible reason Pullen had to submit the documents, mentioned at page
5 of the majority report, was to renew his EMT license so that he
could continue to perform volunteer work for Monmouth Rescue.  Pullen
received no other remuneration or gain for his actions.
     Applying the second tine of the Wright Line test to Officer
Pullen, the majority, at page 5 above, describes his submission of
documents, in connection with the February 1, 2 and 3, 1983 course, as
"highly improper and inexcusable, especially for a police officer."
Finding that Pullen's conduct warranted "some disciplinary action" and
that discharge was "unnecessarily severe," Idem., the majority
concluded that a three-week suspension without pay was a more
appropriate penalty for Pullen's transgressions and have imposed the
same, within the context of their remedial order.  I believe the
Board's action to be an erroneous application of the relevant portion


of the controlling Wright Line standard.  Having held that the
Complainant has established a prima facie case of unlawful discrimina-
tion, as the majority did at page 4 of their decision, the inquiry at
this juncture is what would the Employer's actions have been, in the
absence of any conduct protected by the Act.  I agree with my
colleagues that discharge was too severe a penalty for Pullen's
actions; however, rather than engaging in speculation as to what
discipline would have been appropriate therefor, I prefer to look at
the consequences incurred by Officer Bates in connection with his
actions in the EMT certification incident.  Bates, a non-union
employee, allowed Pullen to submit his name, as a student at the
February 1, 2 and 3, 1983 course, in documents to the Kennebec Valley
Vocational Technical Institute ("KVVTI"), knowing that Pullen did not
intend to teach a formal course on those dates.  Bates also certified
that Cookson was affiliated with the Monmouth Rescue Unit--in satis-
faction of an independent requirement for EMT license renewal--when,
in fact, Cookson had never been so affiliated.  Although he had par-
ticipated in the February 14 to March 14, 1983 EMT course, Bates sub-
mitted the February 3rd course completion certificate to the State
Department of Human Services in order to renew his own EMT license.
On a considerably later date, Bates had the date on said certificate
amended by a KVVTI official to reflect a course completion date of
March 14, 1983.  As a result of his involvement in the EMT incident,
Bates attended a hearing before Chief Jackson and received no
discipline in connection therewith.  In my view, this last fact, taken
from the Chief's own testimony at Vol. II, pages 853-854 of the
Transcript, clearly demonstrates that, in the absence of any protected
conduct by Pullen and any anti-union animus by the Employer, Pullen
would not have incurred any discipline at all under the facts of this
case and I would so hold.
     The majority applied the second prong of the Wright Line test to
Cpl. Cookson's situation and concluded that the Employer would have
discharged the employee, in the absence of any anti-union motivation.
At page 7 above, the majority have stated that Cookson's involvement
with the EMT situation is "but the last in a long series of episodes
in which he demonstrated an inability to adhere strictly to the


truth."  At the outset, I believe that it is important to note that
possession of an EMT license is totally unrelated to Cookson's
employment as a police officer in the Town of Winthrop.  Although the
employee's misconduct in Ritchie v. Town of Hampden, supra, was far
more egregious than that here, the Board concluded that the employee
would not have been discharged, had he not been the main union
spokesman.  In that case, the employee admitted that he had filed
falsified traffic reports which could have resulted "in an innocent
member of the public receiving a traffic ticket."  Ritchie, supra, at
8.  Despite the fact that the dishonesty here, if any, was completely
unrelated to Cookson's employment, the majority concluded that be
would have been discharged as a result of it in any event.  In order
to evaluate the majority holding, one must examine the "long series of
episodes" referred to at page 7 above.  The events constituting said
series are listed in a letter to Cookson from the Town Manager, dated
August 23, 1983, which is part of Union Exhibit 18.  The four
occurrences cited are:  a February 9, 1982 accident at the Augusta
District Court; an April 21, 1982 accident where Cookson struck a rock
with a police cruiser, while leaving his driveway; a January 7, 1983
accident, where Cookson struck a guardrail; and an accident on
April 2, 1983.  The uncontroverted evidence presented before the Board
was that the first such accident and any discipline received as a
result thereof had been expunged from Cookson's personnel file, as
part of a grievance settlement agreement.  Since all reference to the
February 9, 1982 accident was expunged from Cookson's record, the
Employer is estopped from basing subsequent discipline thereon and I
believe that it was improper for the Board to consider said incident
in this case.  The second event was the accident of April 21, 1982.
In this instance, Cookson struck the rock, met a short time later with
Officer Andrews, a non-union employee, and failed to mention the acci-
dent.  Within minutes, Cookson showed the damage to the Union steward
and explained how the accident had occurred.  Cookson then showed it
to Andrews, claiming that he had just discovered it.  The only lack of
truthfulness in this incident was Cookson's failure to mention the
damage, when he first met with Andrews, and his later comment con-
cerning its recent discovery.  These facts cannot be evaluated proper-


ly outside of their factual context.  At the time of this accident,
the Chief had recently been successful in coercing Cookson into decer-
tifying the Union as the bargaining agent for the Corporals' unit and
then Cookson had received severe discipline as a result of the cir-
cumstances surrounding the February 9, 1982 accident.  Cookson, who
had been a Union steward until the decertification activity, was
understandably wary of non-union employees and of Andrews in par-
ticular, since Andrews had played a critical role in resurrecting the
February 9th incident after it had been initially resolved.  Cookson's
desire to discuss the accident with the Union steward, before
revealing it to Andrews, was totally reasonable under the circum-
stances.  It should also be noted that both of the foregoing accidents
had occurred well over a year before being raised in the August 23,
1983 letter and there was no evidence presented that Cookson had been
called to task at all at the time of the second accident in connection
therewith.  The third accident was that of January 7, 1983, where
Cookson struck a guardrail.  Cookson stated that he had lost control
of his vehicle, on a snow covered road, while avoiding another
vehicle.  The Chief testified that he had been at the scene and,
although Cookson's vehicle tracks were clearly visible, there were no
other tracks in the area.  Once again, there was no evidence that
Cookson received any sort of discipline at the time of this incident
and it seems entirely possible that the Chief was looking in the wrong
place for the other vehicle's tracks.  The final relevant event is the
accident of April 2, 1983.  Cookson, while chasing another vehicle
over rough terrain, struck and damaged a pine tree on the property of
a Mr. Firlotte in Winthrop.  The element of dishonesty allegedly pres-
ent in this instance was an averment by the Chief that, in response to
Mr. Firlotte's questioning, Cookson denied having struck the tree.
Transcript, Vol. II, at 758.  Cookson's report to the Chief concerning
the incident, dated April 2, 1983, stated that he had struck a pine
tree on Firlotte's property and, although testifying before the Board
on two separate dates, Firlotte never stated that he had asked and
Cookson had denied hitting the tree.  There was, therefore, no element
of dishonesty or fabrication by Cookson in this episode.  I believe
that, because Cookson had been disciplined and the Employer had agreed

to expunge all reference to the February 9, 1982 accident from his
personnel file, that incident should not have been used against him
either by the Employer or by the Board.  Any lack of candor between
Cookson and Andrews, in connection with the April 21, 1982 accident,
was completely reasonable and understandable under the circumstances.
There may have been a difference of opinion as to the cause of the
January 7, 1983 accident; however, it did not rise to the level of
dishonesty on Cookson's part.  There was absolutely no fabrication in
connection with the April 2, 1983 accident, except perhaps by the
Chief, who was quite upset before the Board because Firlotte had had
"a memory lapse" before the Board.  Transcript, Vol. II, at 759.  In
the absence of anti-union animus on the part of the Employer, Cookson
would not have been discharged.  The events allegedly justifying said
discharge were either unrelated to Cookson's employment, were "stale,"
or did not indicate any dishonesty on his part.
     The Employer's conduct in this matter constituted a clear viola-
tion of Section 964(1)(D) of the Act and the majority's treatment of
the evidence establishing such violation, discussed below, was erro-
neous as a matter of law.  Section 964(1)(D) protects the rights of
employees and employee organizations to file complaints or petitions
with or to give testimony before the Board by "protect[ing] employees
involved in any stage of a Labor Relations Board proceeding from a
wide variety of discriminatory actions by the employer.  See, e.g.,
NLRB v. Scrivener, 405 U.S. 117, 121-125 (1971)."  Southern Aroostook
Teachers Association v. Southern Aroostook Community School Committee,
MLRB Nos. 80-35 and 80-40, at 24 (April 14, 1982); cited with approv-
al, Teamsters Local 48 v. Town of Kittery, MLRB No. 84-25, at 5
(July 13, 1984).  Because this violation assails both the integrity
of the Board's function, as well as the rights of the individuals
appearing before the Board, this may well be the most serious viola-
tion of the Act involved in this case.  The Board must rely upon indi-
vidual employees and employee organizations to bring violations of the
Act to the Board's attention.  If the public employer may retaliate
with impunity against employees who either file complaints or give
evidence before the Board, the entire concept of regulated labor rela-
tions embodied in the Act will be frustrated.


     The Employer's violation of Section 964(1)(D) was patent in the
case of Officer Pullen and, although somewhat less clear, was,
nevertheless, present in regard to Cpl. Cookson.  During the first day
of hearing in this matter, October 26, 1983, Officer Pullen testified
on behalf of the Union.  On two occasions, he lost his composure and
was unable to continue with his testimony and, as a result, Alternate
Chairman Webber specifically assured Pullen that "you will not be
released from your duties as a police officer just because you came
here and testified today."  On October 27, 1983, Pullen testified at
Cpl. Cookson's disciplinary hearing before the Town Manager in the
Town of Winthrop.  One of the subjects discussed by Pullen was the EMT
refresher course.  On October 28, 1983, Officer Pullen received the
first notice that the Employer was charging him with misconduct, in
connection with the February 1, 2 and 3, 1983 refresher course, and
that he had been suspended indefinitely, without pay, pending the
results of a discharge hearing.  At the outset of the second day of
hearing before the Board on November 10, 1983, the Town's Attorney
outlined the Employer's position that Pullen had not been suspended
because of his testimony before the Board.  The Attorney stated:

    "When we were here last time, we were halfway through a
     disciplinary hearing in Winthrop on certain charges that
     were issued against Corporal Cookson.  Officer Pullen
     had not testified in that disciplinary hearing the day
     we were here. He testified the following day.  As a
     result of his testimony at that hearing, the following
     day in Winthrop it became clear that he had in fact
     committed a Class D crime . . .   That was the conclu-
     sion, at least, of the Chief in issuing the suspension.
     No final determination has been made by the Manager as
     to that.  But it seems unfortunate to me that all of this
     had to happen at once because motives get confused, but I
     would like to say that under ordinary circumstances the
     commission of any crime by a police officer is intolerable
     conduct and justifies the immediate suspension, did in
     this case, and I would have done anything, in fact bent
     over backwards, to try to find a way to avoid that kind
     of action because we were involved in this prohibited
     practice complaint procedure.  It does not look good,
     and I recognize that, and I didn't want to have . . ."
Transcript, Vol. I, at 204-205.  This story, implying that the timing
of Pullen's suspension merely happened to coincide with his appearance
before the Board and that the Employer's discovery, on October 27,


that Pullen may have violated the Maine Criminal Code necessitated the
suspension at that time, is inherently incredible.  On October 14,
1983, two weeks before Pullen's suspension, the Town's Attorney in a
letter to the Union, charged that Cpl. Cookson had committed unsworn
falsification, a Class D crime in the State of Maine.  The specific
allegations contained in said letter were:

    "l. On or about March 1, 1983, Corporal Cookson submitted
        an application for a renewal of his Emergency Medical
        Technician license.  The application indicated that he
        took a mandatory refresher course in February of 1983.
        It is alleged that the course never took place.

     2. In support of the statement that the course had been
        completed, Corporal Cookson submitted a certificate of
        course completion issued by the Kennebec Valley Voca-
        tionsl [sic] Center.  It is alleged that Corporal
        Cookson knew that the certificate was false and
        fraudulently obtained."

Union Exhibit No. 20.  The certificate referred to in paragraph number
2 above is Employer's Exhibit No. 7, which was signed by Pullen as
instructor of the course.  Secondly, any suggestion that the Employer
was unaware of Pullen's involvement in the EMT incident until October
27th was dispelled by the Employer's cross-examination of Pullen
before the Board on October 26, 1983.  Transcript, Vol. I, at 190-197.
The Employer asked Pullen several questions which clearly indicated
that it had knowledge of Pullen's involvement in the course.  The EMT
issue had not been raised, before the Board, prior to said cross-
examination.  It is clear that, although the Employer knew of Pullen's
involvement in the EMT affair, at least by October 14, 1983, the
Employer, all pleas of exigency notwithstanding, did not suspend
Pullen, until after he had testified before and received an assurance
of protection from the Board.  The majority, at page 6 above, essen-
tially said that the hypothetical "reasonable man" could conclude that
the Employer's suspension of Pullen was the result of his giving
testimony before the Board.  This is a violation of Section 964(1)(D)
of the Act and I would so hold.

     The majority dismisses the possibility that the Employer violated
Section 964(1)(D) of the Act, in connection with Cpl. Cookson, by
stating: "[w]e do not here encounter the problem of disciplinary


action in retaliation for the giving of testimony adverse to the
Employer's interest since the disciplinary action preceded his
testimony."  Page 7, supra.  Despite the fact that Cookson had not
testified at the time of his suspension, he was a central figure in
the prohibited practice complaint, he was listed as a Union witness in
the Pre-Hearing Conference memorandum and order, and everyone con-
nected with the case knew that he would testify on behalf of the
Complainant.  In my view, there is no question that the Employer's
timing, in suspending Cpl. Cookson, was the result of his anticipated
testimony against the Employer before the Board.  Although the
Employer first brought its "charges" against Cookson on August 23,
1983, and filed additional charges on September 28, 1983 (Union
Exhibit No. 21) and on October 14, 1983 (Union Exhibit No. 20),
Cookson was not suspended until after the hearings before the Board
had begun.  The facts herein clearly constitute a violation of 26
M.R.S.A.  964(1)(D) and I would so hold.
     I believe that the majority has committed an error of law in
failing to properly evaluate the facts which established the
Employer's violations of Section 964(1)(D).  My colleagues, at pages 6
and 7 of their decision, considered the evidence relevant to said
violations as a mere "further consideration" in their application of
the Wright Line standard in connection with the violation of Sections
964(1)(A) and (B).  Section 964(1)(D) is a separate and distinct pro-
vision of the Act and, if the evidence in a given case establishes a
violation thereof, it is the Board's duty to adjudicate the trans-
gressor in violation of said Section and to provide a remedy therefor.
26 M.R.S.A. Sec. 968(5)(C).  As I have noted above, the majority has
essentially held that the Employer violated Section 964(1)(D), in con-
nection with Officer Pullen herein, and have failed to provide any
remedy for said violation.  This omission on the part of the majority
members constitutes an error of law.
     In addition to failing to provide a remedy for the violation of
Section 964(1)(D), the majority has not ordered adequate remedies to
rectify the violations of the Act herein and to fully effectuate the
policies of the Act.  Since I would hold that neither Cookson nor
Pullen would have incurred any discipline in the absence of their


engaging in activities protected by the Act, I would order the
Employer to offer reinstatement to both individuals and to compensate
them, with full back pay and benefits, plus interest, for the period
from October 28, 1983 to the date of the offers of reinstatement.
I would lessen the Employer's debt to each individual by the amount of
actual earnings and benefits, which each received during said inter-
val.  Further, I would order all reference to the suspensions and
discharges, which were the subject of this action, deleted from each
employee's personnel file.  Even if I could accept the majority's
decision that Cookson would have been discharged in any event, the
protection of Board witnesses, afforded by Section 964(1)(D), would,
nevertheless, require that Cookson receive full back pay and benefits,
plus interest, less the amount of his earnings and benefits received
during said interim, for the period from October 28, 1983 to the date
of this decision.
     One final comment must be made concerning the conduct of the
Employer's attorney in this case.  The counsel's use of superfluous
witnesses and his repetitive questioning of necessary witnesses
resulted in needlessly prolonging the hearing process.  The attorney
repeatedly engaged in colloquy with the Union's representative,
without going through the Chairman, and, rather than filing a proper
objection thereto, often interjected answers to questions which he
felt might be damaging to his position.  While this was his first
appearance before the Board and his behavior might be due to a lack of
litigation experience, the attorney's conduct shouldn't be allowed to
pass without notice.
Dated at Augusta, Maine, this 15th day of November, 1984.
                                  MAINE LABOR RELATIONS BOARD

                                  Harold S. Noddin         
                                  Employee Representative


                           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


                 we hereby notify all personnel that:

(1) WE WILL NOT discharge, suspend, or otherwise discriminate against regular,
full-time employees of the Winthrop Police Department because of their interest in
or activity on behalf of the Union or any other labor organization.

(2) WE WILL NOT in any other manner interfere with, restrain or coerce regular,
full-time employees of the Winthrop Police Department in the exercise of their
rights to engage in union activities.

(3) WE WILL offer Fred A. Pullen immediate and full reinstatement to his former
position of Patrolman with the Winthrop Police Department and make him whole for any
loss of earnings or benefits incurred by his being suspended or discharged, from
November 18, 1983 until the date of the aforesaid offer of reinstatement.

(4) WE WILL, within 20 days of the date of the Board's 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 WINTHROP

Dated: _______________________    By:  _______________________________________
                                       Marshall Hills, 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 provi-
sions, they may communicate directly with the offices of the Maine Labor Relations
Board, State House Station 90, Augusta, Maine 04333, Telephone 289-2015.