AFSCME, Council 93 v. Town of Rumford, No. 95-09 (Apr. 27, 1995); aff'd sub nom. AFSCME, Council 93 v. Maine Labor Relations Board and Town of Rumford, No. CV-95-221 (Me. Super. Ct., Ken. Cty., Oct. 5, 1995); aff'd, 678 A.2d 591 (Me. 1996). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 95-09 Issued: April 27, 1995 ____________________________ ) AFSCME COUNCIL 93, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF RUMFORD, ) ) Respondent. ) ____________________________) On November 8, 1994,[fn]1 AFSCME Council 93 (AFSCME) filed a prohibited practice complaint with the Maine Labor Relations Board (Board) which alleges that the Town of Rumford (Town) has violated 26 M.R.S.A. 964(1)(E) (1988). More specifically, the complaint alleges that Town Police Sergeant Michael Richard was placed on administrative leave on April 28, 1994, during an investigation of alleged misconduct, that Richard was demoted to Patrolman on May 6, 1994, and that on May 9, 1994, Town Chief of Police Timothy "Bourassa and others served an 'agreement and release' to Mr. Richard for his signature."[fn 2] The complaint alleges that the "agreement and release was negotiated between the employer and employee" and that the certified bargaining agent "was not consulted with nor was any attempt by management made to negotiate this agreement with the bargaining agent." The complaint asks the agreement "be declared null and void," that Richard be reinstated and made whole and that AFSCME's legal and _____________________ 1 The January 20, 1995, Prehearing Officer's Memorandum and Order erroneously refers to the November 8, 1994, filing date as November 7, 1994. 2 The Agreement and Release signed only by Richard states, inter alia, that "[i]n consideration of the Town of Rumford not terminating my employment I hereby release and discharge the Town and its agents . . . from all claims . . . including . . . all claims under the collective bargaining agreement." -1- administrative costs be paid by the Town. The Town's answer states that Richard was given the Agreement and Release in a meeting attended by Richard, the Town Manager, Chief Bourassa and a union representative, and that Richard was given five days in which to confer with the union and with legal counsel before deciding whether to accept its terms. The answer states that the Town was not required to bargain with AFSCME concerning disciplinary action or "concerning an individual employee's execution of a release from liability of the employer." The answer avers by way of affirmative defenses that the complaint is barred by the six-month statute of limitations period set forth in 26 M.R.S.A. 968(5)(B) (1988), and that the complaint fails to allege that the demotion violated any provisions of the Municipal Public Employees Labor Relations Law (MPELRL). A prehearing conference was conducted in this matter on January 11, 1995, by Alternate Chair Kathy M. Hooke. Modified only to correctly reflect a complaint-filing date of November 8, 1994, Chair Hooke's January 20, 1995, Prehearing Conference Memorandum and Order is hereby incorporated in and made a part of this decision and order. An evidentiary hearing was conducted in this matter on February 15, February 24 and April 5, 1995, by Alternate Public Chair Pamela D. Chute, Alternate Employee Representative Gwendolyn Gatcomb and Alternate Employer Representative Eben B. Marsh. All parties were afforded the opportunity to present evidence and argument. At the outset of the hearing on February 15, 1995, AFSCME requested permission to amend its original complaint to state a violation of 26 M.R.S.A. 964(1)(A) (1988). The nature of the requested amendment, granted on the second day of hearing, -2- February 24,[fn]3 1995, is best exemplified in the following transcript passage in which AFSCME Attorney Stephen P. Sunenblick responds to Town Attorney Michael R. Poulin's question, whether AFSCME has drafted a written proposed amendment: MR. SUNENBLICK: No, I haven't. I'd be glad to. I mean I didn't know exactly how this was going to unfold. I don't mind drafting it and I don't mind submitting it today. If I were to draft it I can tell you extemporaneously at this moment that what it would allege is that at the time the chief informed Stacy Carter that Mike Richards was terminated that that was not in fact so. And so the underlying premise for Mr. Carter's actions and for Mr. Richards' actions were not factual. And because this agreement led to a relinquishing of Mr. Richards' rights under a collective bargaining agreement, we would say that that kind of behavior, for the purpose of this motion or discussion, assuming again that there's some valid basis for it, constitutes an interference with or coercion with an employee in the exercise of their rights under the Public Employees Labor Relations Act, which is proscribed by Section 964(A) (sic). JURISDICTION The Town is a public employer within the meaning of 26 M.R.S.A. 962(7) (1988). AFSCME is the bargaining agent of a unit of the Town's law enforcement employees, within the meaning of 26 M.R.S.A. 962(2) (1988), which includes all regular employees of the Police Department except the Chief and the investigators. AFSCME has alleged that the Town has committed prohibited practices proscribed by 26 M.R.S.A. 964(1)(A) and (E) (1988). As is more fully explained below we conclude that none of the alleged prohibited practices occurred within the statute of limitations period set forth in 26 M.R.S.A. _____________________ 3 AFSCME's requested amendment was permitted on February 24 "to the extent that matters in the [written] amended complaint [which was received after adjournment of the hearing day on February 15, 1995,] fall within the requests for amendment . . . [which were] described by Mr. Sunenblick on the record [on February 15]." -3- 968(5)(B) (1988). Accordingly, we have no jurisdiction over AFSCME's complaints, and they must be dismissed. FINDINGS OF FACT On April 28, 1994, during his first day as Chief of the Rumford Police Department (RPD) newly-promoted Chief Timothy Bourassa placed Sergeant and AFSCME RPD bargaining unit president Michael Richard on paid administrative leave pending an internal investigation. The investigation conducted by RPD Lieutenant Wayne Gallant and the Chief concerned an April 28 incident "in the jail area or dispatch center" of the RPD, involving the incarceration of a juvenile. As Richard's union representative, Sergeant/Shift Supervisor and AFSCME RPD bargaining unit vice president Stacy Carter received a copy of a letter placing Richard on administrative leave. Carter had acted as Richard's union representative in the processing of grievances in the past and acted as a go-between for Richard at all times material to this case. On the evening of April 28, Chief Bourassa met in executive session with the Town's Selectmen, the Town Manager and the Town Attorney with respect to Richard's having been placed on administrative leave and the reasons therefor.[fn]4 On May 4, 1994, Bourassa and Gallant met with Richard.[fn]5 Richard inquired of his status and was told that he was "still out on administrative leave with pay . . . and that no decision had been made yet." Richard's statements at this investigatory meeting were consistent with the findings of the investigators to that point in time. Bourassa then met with Carter and discussed _____________________ 4 AFSCME's assertions respecting the alleged impropriety of the Town's executive session, based on the apparent failure of the Town to extend to Richard the opportunity of attendance, are not within our jurisdiction. 5 There are no allegations of violation of Weingarten representational rights with respect to this meeting. -4- both the investigation and the meeting earlier that day with Richard. Bourassa "told [Carter] as the union representative for Sergeant Richard that . . . [Carter] was to go find Sergeant Richard either at his home or his parents', wherever he may be, and [to] advise him that he had been terminated from employment." Carter and the Chief discussed the severity of the investigatory findings and the possibility of other disciplinary options including demotion. At this point, as a result of their conversation, Carter understood that he was to tell Richard that he had been, or was going to be, terminated unless agreement could be worked out on a demotion "through the union." Carter believed Richard would be terminated if he did not accept demotion. Because of his concern about the contract's language respecting the availability of demotion as a disciplinary measure,[fn]6 Carter asked the Chief if he could contact AFSCME field representative Ed Willey, prior to notifying Richard, to determine whether demotion "was an option that could be exercised." Carter attempted to contact Willey by phone but was unsuccessful prior to talking with Richard. Carter found Richard at his parents' home, told him of his conversations with the Chief and that he had come there "to tell him that he was going to be terminated from the police department." They discussed demotion. Richard asked Carter to "go back and see what's going on, what you can do for me." _____________________ 6 The parties' contract states in Article 1 - Functions of Management, that the right to demote "is left exclusively to the Town Manager with approval of the Board of Selectmen." Demotion is not included in the contract's list of "[d]isciplinary action[s] or [m]easures." The Town's bylaws provide that RPD officers "shall be subject to demotion on complaint of the chief . . . filed with the Town Manager," and that "[h]earings on such complaints shall be in accordance with the collective bargaining agreements then in force." The Town Charter empowers the Town Manager to "appoint, prescribe the duties of and remove all employees of the town who are under his jurisdiction." -5- Willey returned Carter's call during the afternoon of May 4, 1994. They spoke about whether demotion was possible in light of the absence of demotion from the disciplinary provisions of the contract. Willey told Carter that if Richard agreed to demotion they "would not be able to file a grievance" and that "the only way he would have grievance rights was to take the termination and then try to fight from that." Carter relayed Willey's guidance to Richard later that afternoon. "Richard thought for a moment and told [Carter] that he would have to accept demotion because he couldn't take a chance of losing a fight if he was to take the being fired." Carter made sure that was what Richard wanted to do and then informed the Chief that Richard would accept a demotion. At a meeting in the Town Manager's office on May 6, the Chief gave Richard, in Carter's presence, a copy of an Agreement and Release, prepared by then Town Attorney Albert Beliveau. Richard was also given a copy of an unsigned demotion letter dated May 6, 1994. Carter and Richard spoke with the Town Manager, who, at the Town Attorney's request, gave Richard an additional period of time, over the weekend, to re-read the Agreement and Release, to think it over, to seek counsel and to decide what he wanted to do. Richard was told that his decision needed to be made by 9:00 a.m. on May 9, 1994. Carter and Richard reviewed the Agreement and Release together. Richard also discussed the Agreement and Release over the weekend with his fianc,e. Carter and Richard met with the Town Manager and Town Clerk at about 9:00 a.m. on Monday, May 9, 1994. Richard signed the agreement before a notary during this meeting. At the May 9, 1994, meeting, Richard was given a letter of demotion signed by Bourassa and dated May 6, 1994, which notified him of his demotion "effective May 8, 1994, per order of the Town Manager." Neither the Chief nor the Town Manager made any attempt to -6- negotiate directly with Richard respecting the Agreement and Release. No AFSCME agent ever demanded to negotiate Richard's demotion. Richard spoke to Selectman Thibodeau one and one-half months after executing the Agreement and Release. Thibodeau told Richard that the Selectmen had not voted to terminate him and that although Bourassa had recommended that the Selectmen fire him, the Selectmen had told Bourassa "no." Two weeks later, Richard spoke with Selectman Shurtleff who told Richard that the Selectmen knew nothing of the Agreement and Release that Richard had signed. By July's end, Richard had spoken to Selectmen Shurtleff, Rinaldo and Bradley who each confirmed Thibodeau's statement that he had not been terminated. Richard informed Willey of these conversations "sometime the first of August, somewhere around there."[fn]7 DISCUSSION AFSCME's original complaint, alleging unlawful refusal to bargain based on the Town's alleged direct dealing with Michael Richard in the negotiation of an Agreement and Release, is frivolous. The record amply demonstrates that AFSCME president Richard never dealt with the Town respecting either disciplinary measures or the Agreement and Release at any time when AFSCME vice president Stacy Carter was not present in a representative capacity. Moreover, Carter consulted with AFSCME Staff Representative Ed Willey regarding the availability of demotion as discipline and the effect of signing the release upon the _____________________ 7 Richard met with Willey on the occasion of Willey's travel to a meeting at the Mexico Police Department regarding unrelated AFSCME business. Willey never testified and no more exact date of this conversation was established. -7- future grievance rights of Richard.[fn]8 Accordingly, AFSCME's original complaint is hereby dismissed. On February 15, 1995, the first day of hearing, the parties argued at length over the propriety of a request by AFSCME to amend its complaint to allege Town misrepresentation in the negotiation of an Agreement and Release by which Richard's contractual right to grieve Town disciplinary measures was forfeited. The Board adjourned at mid-day after granting a motion for continuance made by AFSCME.[fn]9 Attorney Sunenblick variously characterized his and AFSCME's knowledge of the facts constituting the alleged misrepresentation as follows, at hearing, on February 15, 1995: In the course of the last week, with emphasis placed on yesterday, it has come to our attention that there was indeed some underlying facts to this matter that have not ever been made part of the official record in the Town of Rumford in terms of minutes that indicate that there was some other events that transpired at the same time as the contractual arrangement was made between the employee and the Town. . . . . . . . AFSCME, I will represent to you, and AFSCME, whether it be the steward, Stacy Carter, or the field representative, Ed Willey, or myself as the attorney, didn't have any information about any of this until, at least with respect to myself, yesterday. . . . . . . . I received this information yesterday. Whether I _____________________ 8 There is no allegation that Richard was unable to communicate the verbatim terms of the settlement to Willey by phone, facsimile or otherwise. The evidence indicates that Richard mulled over the proffered agreement with his fianc,e and with Carter. 9 AFSCME sought the continuance to enable it to secure the attendance of witnesses essential to establishing the prohibited practice complained of in the sought-after amendment. -8- could have received it before, I don't know. The only dealings that I had with anybody really in developing this case was with Ed Willey, who was the field representative and who essentially is my client who I represent. And he had no knowledge of this situation either. And when I asked him basically after I found out, you know, what was going on out there, he had indicated to me that there was some suspicion of something, but every time that he'd ask somebody to look, you know, go get something hard core, you know, go get the minutes or go get this, that no one ever was able to give him any information. So with respect to myself, I didn't know until yesterday. I think--I wish Ed were here. I think he's out smoking or something. But what he informed me is that there was some--he had some inkling of information from Mike Richards. Attorney Poulin spoke in opposition to AFSCME's motion to amend, as indicated in the following February 15, 1995, transcript passage, with respect to what AFSCME knew and when it knew the facts alleged to constitute AFSCME's complained-of allegations of misrepresentation in the compromise of Richard's grievance rights: MR. POULIN: Okay. First, at the prehearing on January 11, five weeks ago, we had prepared some stipulations in this case. Mr. Sunenblick did not appear at the prehearing, and I understand he had car trouble or some reason. Mr. Willey appeared at the prehearing for the union. At that time I asked if the union was prepared to stipulate, agree to any of the proposed stipulations. Mr. Willey checked with Mr. Sunenblick and came back and said Mr. Sunenblick had not spoken to any of the witnesses and therefore was not in a position to agree to stipulations.[fn]10 MR. SUNENBLICK: I'll state to you that's correct. MR. POULIN: We're now here hearing again, as with the prehearing conference, he had not spoken to _____________________ 10 We are distressed to learn that AFSCME's field representative and the union's attorney were apparently not sufficiently prepared at the time of the prehearing to engage in the consideration of proposed stipulations, to adequately specify witnesses or to tender all anticipated documentary evidence. -9- any of the witnesses and apparently did not speak to the witnesses until yesterday. That's point No. 1. Point No. 2 is that at--and this is why I wanted to voir dire Mr. Willey--at the prehearing, the day of the prehearing conference, Mr. Willey and I stepped outside and Mr. Willey told me on January 11 that the reason that Mr. Richard was so upset about this, the reason that he had insisted they bring a prohibited practice charge, was that one of the selectmen had told him that the selectmen hadn't approved this or didn't agree with this somehow, and that that's why he was upset. So. Mr. Willey knew that some time before January 11, and we're again for today hearing the first time that they're proposing that that's a prohibited practice and they want to amend the complaint. Mr. Richard testified unequivocally that he spoke to Willey in early August, 1994, about his conversations with the Selectmen, which indicated that they had not voted to terminate him. Because the original complaint has been dismissed there is nothing left to amend.[fn]11 See Geroux v. City of Old Town, No. 84-24, 7 NPER 20-15016 (Me.L.R.B. June 18, 1984). Accordingly, the prohibited practice complained of in AFSCME's February 15, 1995, ore tenus motion to amend, to be cognizable by this Board must have come to the attention of agents of AFSCME on a date certain sometime after mid-August of 1994. The record does not establish this to be the case. Richard, president of the bargaining unit, knew or should have known of the facts alleged to constitute the complained-of misrepresentation in June or July of 1994, and AFSCME field representative Willey was apprised of these facts in early August. We find the original complaint to be frivolous. _____________________ 11 Moreover, AFSCME has apparently abandoned its allegations of direct dealing. We do not decide herein whether the amended complaint alleges a violation which arises out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. See Board Rule 4.06(B). See also Rule 4.09(A). -10- Additionally, the proceedings on February 15, 1995, almost exclusively concerned AFSCME's proposed amendment of the original complaint to set forth a prohibited practice charge based on facts of which AFSCME was aware more than six months prior to the first scheduled day of hearing. And yet, no prehearing request for continuance and no prehearing request to amend was made by AFSCME. Accordingly, we will order AFSCME to pay all the Board costs for the first day of hearing, February 15, 1995. AFSCME's request for fees and costs must be denied because it has not prevailed on any aspect of its complaints. In its response to the amended complaint the Town requested costs, including reasonable attorney's fees expended in defending against the amended complaint. We do not conclude the amended complaint to be frivolous and therefore will award neither costs nor attorney fees to the Town for its defense. The Town made no similar request with respect to the original complaint and has offered no estimate of non-Board-related costs or statement of attorney's fees incurred. We therefore make no award of attorney's fees or non-Board costs in this case. 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. 968(5) (1988 & Supp. 1994), it is hereby ORDERED: 1. That AFSCME's November 8, 1994, and February 15, 1995, complaints be, and hereby are, DISMISSED. 2. That AFSCME pay for $671.25 of the total $974.38 Board costs incurred during the three days of hearing in this matter, consisting of all of the Board costs for February 15, 1995, and half of the Board costs assessed for the second and third days of hearing. -11- Issued at Augusta, Maine this 27th day of April, 1995. The parties are hereby advised MAINE LABOR RELATIONS BOARD of their right, pursuant to 26 M.R.S.A. 968(5)(F) (Supp. 1994), to seek review of this decision and order by the /s/______________________________ Superior Court. To initiate Pamela D. Chute such a review, an appealing Alternate Chair party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision /s/______________________________ and order, and otherwise Eben B. Marsh comply with the requirements Alternate Employer Representative of Rule 80C of the Maine Rules of Civil Procedure. /s/______________________________ Gwendolyn Gatcomb Alternate Employee Representative -12-