Interim Order on Motion to Quash Subpoena, Feb. 24, 1998;
Protective Order, Feb. 24, 1998; Decision and Order, Oct. 19, 1999.
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 97-20 & 97-21
Issued: February 24, 1998
_________________________________
)
DANA E. DUFF, )
)
Complainant, )
)
v. )
)
TOWN OF HOULTON, TOWN OF )
HOULTON POLICE DEPARTMENT )
and CHIEF DARRELL MALONE, )
)
Respondents. )
_________________________________)
) INTERIM ORDER ON
HOULTON PATROLMEN/DISPATCHER ) MOTION TO QUASH SUBPOENA
AND COMMAND UNIT - )
MAINE ASSOCIATION OF POLICE, )
PATROL OFFICER TROY O'BAR, )
PATROL OFFICER A. JOHN HYMAN and )
SERGEANT EDWARD ARCHER, )
)
Complainants, )
)
v. )
)
TOWN OF HOULTON/HOULTON POLICE )
DEPARTMENT and CHIEF OF POLICE )
DARRELL A. MALONE, )
)
Respondents. )
_________________________________)
Upon consideration of briefs submitted by the three parties
to this prohibited practice proceeding,1 we hereby GRANT
Respondent Town of Houlton's Motion to Quash the subpoena requested
by Complainant Duff, on the grounds that these documents are
confidential under 30-A M.R.S.A. 2702 and may not be released
by the Town to Mr. Duff for his use in this consolidated
prohibited practice case.
These prohibited practice complaints, which arise out of the
____________________
1 The parties agreed to submit briefs on this issue, in lieu of
oral argument before the Board.
[-1-]
same hiring and promotion selection process conducted by the Town
of Houlton Police Department, were consolidated for hearing at
the prehearing conference stage of these proceedings. See Pre-
hearing Conference Memorandum and Order (July 7, 1997). Mr. Dana
Duff, who is represented by private counsel, and the Maine
Association of Police (MAP) (on behalf of Mr. Troy O'Bar, Mr. A.
John Hyman and Mr. Edward Archer) allege in their complaints that
involvement in protected union activities and the employer's
anti-union animus adversely affected their respective placements
on a selection roster for three available positions.
At the prehearing conference, Respondent objected to
Exhibits C-49 through C-52 and C-54 through C-56 being provided
to Complainant Duff on the grounds that these exhibits (personnel
records) are confidential by statute, 30-A M.R.S.A. 2702, and
may be released only to the union. These exhibits were not
admitted into evidence at the prehearing conference. Mr. Duff's
attorney agreed to attempt to secure waivers from the seven
individuals whose personnel records are at issue (three of whom
are the other Complainants in this proceeding) and, in the
alternative, agreed to consider calling these individuals as
witnesses and questioning them on the substance of the documents
at issue.
To our knowledge, Complainant Duff's attorney did not
attempt to secure waivers but, instead, requested that the Board
issue a subpoena to the Respondent Town of Houlton to produce the
following records:
(C-49) Complete personnel file of Troy O'Bar
(C-50) Complete personnel file of Edward F. Archer
(C-51) Complete personnel file of A. John Hyman
(C-52) Complete personnel file of Maurice Ellis
(C-54) Complete personnel file of James Skehan
(C-55) Complete personnel file of Thomas Donahue
(C-56) Complete personnel file of Terry Beaton
Mr. Duff's attorney requested that these documents be made
available for inspection and copying at his law office at least
-2-
ten days prior to the hearing.2
Prior to issuance of the subpoena, counsel for the Town of
Houlton raised concerns with the executive director about the sub-
poena request. The executive director determined that Respondent
counsel's concerns would be treated as a motion to quash the
requested subpoena, and a briefing schedule was established.
We turn now to the merits of the motion. While most records
retained by municipalities are available for public inspection
pursuant to 1 M.R.S.A. 401, et seq., there are exceptions to
this general rule. Certain personnel records of municipalities
are confidential and not open to public inspection. 30-A M.R.S.A.
2702. There are specific exceptions to this confidentiality
statute. Employees of municipalities may inspect and copy their
own personnel records (30-A M.R.S.A. 2702(1)(C)(2)), and union
representatives are permitted access to personnel records "which
may be necessary for the bargaining agent to carry out its
collective bargaining responsibilities." 30-A M.R.S.A.
2702(1)(A)(3).
The Town does not object to MAP's access to the personnel
records of the seven individuals named in Complainant Duff's
subpoena request. Nor has any party questioned the Board's
ability to review these documents should the Board determine
during the course of its hearing that these documents are
relevant to the issue before the Board.3
To our knowledge, there has been only one case brought under
the confidentiality provision at issue before the Board and it is
_____________________
2 While it is not necessary for us to reach the issue of pre-
hearing discovery raised by Complainant's subpoena request, we do wish
to note that the Board's rules and procedures do not allow for
"discovery" beyond the exchange of exhibits and witness lists which
typically occurs at the prehearing conference.
3 We believe the statutory exemption for union representatives,
and the cases cited by the Town in its brief, support Board access to
relevant municipal personnel records, so long as a protective order is
issued by the Board. We will issue an appropriate protective order
with this Interim Order.
-3-
not particularly helpful to our deliberation.4 The courts that
have addressed the intent of similar confidentiality statutes
generally agree that the statutes prevent only voluntary
disclosure and that, if necessary to judicial proceedings or
investigations conducted by the Legislature, these otherwise
confidential records may be disclosed. Pooler v. Maine Coal
Products, 532 A.2d 1026 (Me. 1987); accord Maine Sugar Industries
v. Maine Industrial Building Authority, 264 A.2d 1 (Me. 1970).
In both of these cases, the Court engaged in a balancing test
weighing the risk of injury to those whose records would be
disclosed against the benefit gained by disclosure for the
correct disposition of the particular proceeding.
In this case, we have engaged in a similar balancing test
and have determined that the benefit to the Board (and also to
Mr. Duff) gained by disclosure of these personnel records to
Mr. Duff's attorney does not outweigh the injury to these
individuals of disclosure of their confidential personnel
documents to Mr. Duff. We are strongly influenced by the fact
that Mr. Duff's complaint has been consolidated with MAP's and
these records have already been released to MAP for its use at
hearing. Both Complainants have alleged that anti-union animus
adversely affected Respondent's decision making in the
promotional process.5 Should MAP offer relevant confidential
records into evidence, or make use of those records during
hearing, the Board will consider them in connection with
Mr. Duff's case against the Respondent as well. Further
disclosure of these confidential personnel records to Mr. Duff's
attorney will not substantially affect the Board's correct
disposition of Mr. Duff's prohibited practice complaint.
_____________________
4 In Lewiston Daily Sun v. City of Lewiston, 596 A.2d 619 (Me.
1991), the Law Court denied the newspaper access to municipal
personnel records which would identify a police officer who was under
investigation in the shooting of a civilian.
5 We affirm the decision to consolidate these cases for this reason, as
well as for the other reasons set forth in the prehearing conference
memorandum and order.
-4-
We are guided in our decision to grant Respondent's motion
to quash by the section of the Administrative Procedures Act
(APA) which addresses the disclosure of confidential information
for the determination of issues in certain APA proceedings.
5 M.R.S.A. 9057(6).6 That section provides for the disclosure
of confidential information subject to specific limitations which
we will incorporate into the protective order which accompanies
this Interim Order.
In closing, we note that Complainant Duff still has
available to him the other avenues of access to these documents
and the substance contained in them suggested by his attorney at
the prehearing conference.
For the reasons stated herein, we GRANT the Town of Houlton's
Motion to Quash Subpoena requested by Complainant Duff.
Dated at Augusta, Maine, this 24th day of February, 1998.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Kathy M. Hooke
Alternate Chair
/s/_____________________________
Gwendolyn Gatcomb
Employee Representative
/s/_____________________________
Karl Dornish, Jr.
Alternate Employer
Representative
_____________________
6 It is reasonable for the Board to turn to the APA for guidance
in our decision making, even though the APA does not govern judicial
review of the Board's prohibited practice determinations. See Sanford
Highway Unit v. Town of Sanford, 411 A.2d 1010, 1015 (Me. 1980).
-5-
___________________________________________________________________
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 97-20 & 97-21
Issued: February 24, 1998
_________________________________
)
DANA E. DUFF, )
)
Complainant, )
)
v. )
)
TOWN OF HOULTON, TOWN OF )
HOULTON POLICE DEPARTMENT )
and CHIEF DARRELL MALONE, )
)
Respondents. )
_________________________________)
) PROTECTIVE ORDER
HOULTON PATROLMEN/DISPATCHER )
AND COMMAND UNIT - )
MAINE ASSOCIATION OF POLICE, )
PATROL OFFICER TROY O'BAR, )
PATROL OFFICER A. JOHN HYMAN and )
SERGEANT EDWARD ARCHER, )
)
Complainants, )
)
v. )
)
TOWN OF HOULTON/HOULTON POLICE )
DEPARTMENT and CHIEF OF POLICE )
DARRELL A. MALONE, )
)
Respondents. )
_________________________________)
Whereas, the Maine Labor Relations Board (hereinafter "the
Board") has determined that the Town of Houlton ("the Town") has
a legitimate need to protect the confidentiality of personnel
records from disclosure to Complainant Duff and the general
public; and,
Whereas, during the course of this proceeding before the
Board, the Town or the Maine Association of Police ("MAP") may
introduce into evidence confidential personnel records, or make
use of such records during hearing, having lawful access thereto;
Now, therefore, it is hereby ORDERED that:
[-1-]
Information Subject to This Order
For the purposes of this Order, "confidential personnel
records" shall mean all records set forth in 30-A M.R.S.A.
2702 pertaining to Troy O'Bar, Edward F. Archer, A. John Hyman,
Maurice Ellis, James Skehan, Thomas Donahue and Terry Beaton.
These "confidential personnel records" will be designated as such
on the face of each document. Any record so designated shall be
handled in accordance with this Order.
Limitations on the Use of Confidential Personnel Records
Disclosure of these confidential personnel records is
subject to the following limitations:
1. The Board determines that introduction of confidential
personnel records is necessary for the determination of the
issues before the Board;
2. To the extent practicable, and in order to facilitate
the conduct of the Board's hearing, introduction of confidential
information will be limited to a discrete segment of the Board's
hearing (e.g., toward the conclusion of MAP's presentation of its
case-in-chief); this matter will be addressed and resolved at the
beginning of the hearing;
3. During the introduction of confidential information, the
proceeding is open only to the members of the Board, employees of
the Board (e.g., Board Counsel and the Court Reporter), all
parties to this proceeding (including Complainant Duff), parties'
representatives, counsel of record (including Complainant Duff's
counsel) and the witness testifying regarding the information;
4. Complainant Duff and his counsel are not permitted to
examine these confidential records during the course of the
hearing;
5. To the extent practicable, counsel and witnesses will
protect the identity of the employee whose personnel records are
-2-
referred to at hearing, or introduced into evidence at hearing;
6. Witnesses are sequestered during the introduction of
confidential personnel records, except when offering testimony at
the proceeding;
7. All parties to this proceeding must sign an agreement
not to disclose or use this confidential information except in
accordance with this Order. Board Counsel will draft this
confidentiality agreement and it will be executed prior to the
beginning of the hearing;
8. After hearing, the confidential personnel records shall
be sealed within the record, and the portion of the transcript
where use is made of these confidential personnel records shall
be sealed within the record and may not be further disclosed,
except upon order of court;
9. Nothing shall prevent disclosure beyond the terms of
this Order if the employees whose confidential personnel records
are in issue consent in writing to such disclosure.
Dated at Augusta, Maine, this 24th day of February, 1998.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Kathy M. Hooke
Alternate Chair
/s/____________________________
Gwendolyn Gatcomb
Employee Representative
/s/_____________________________
Karl Dornish, Jr.
Alternate Employer
Representative
-3-
---------------------------------------------------------------
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 97-20 & 97-21
Issued: October 19, 1999
_______________________________
)
DANA E. DUFF, )
)
Complainant, )
)
v. )
)
TOWN OF HOULTON, TOWN OF )
HOULTON POLICE DEPARTMENT )
and CHIEF DARRELL MALONE, )
)
Respondents. )
)
_______________________________) DECISION AND ORDER
)
HOULTON PATROLMAN/DISPATCHER )
AND COMMAND UNIT - MAINE )
ASSOCIATION OF POLICE, PATROL )
OFFICER TROY O'BAR, PATROL )
OFFICER A. JOHN HYMAN and )
SERGEANT EDWARD ARCHER, )
)
Complainants, )
)
v. )
)
TOWN OF HOULTON/HOULTON POLICE )
DEPARTMENT and CHIEF OF POLICE )
DARRELL MALONE, )
)
Respondents. )
_______________________________)
The question presented in these prohibited practice
complaints is whether Police Chief Darrell Malone's conduct
during a promotional process violated 26 M.R.S.A. 964(1)(A) and
(B).1 Complainants allege that their union activism caused Chief
___________________
1 These cases were consolidated for hearing at a prehearing
conference conducted on June 25, 1997. The Prehearing Conference
Memorandum and Order, dated July 7, 1997, is incorporated herein and
made a part of this Decision and Order. The Interim Order on the
Respondents' Motion to Quash Subpoena, dated February 24, 1998, and
accompanying Protective Order and Confidentiality Agreement, are also
hereby incorporated in and made a part of this Decision and Order.
[-1-]
Malone to intentionally manipulate his evaluation scores and, in
Officer Duff's case, to readminister an oral board, in order to
adversely affect their overall standing in the promotional
process.
This matter was heard over the course of twelve days,
between June 3, 1998, and April 16, 1999. The hearing was
conducted by Chair Pamela D. Chute, Employee Representative
Carol B. Gilmore, and Employer Representative Edwin S. Hamm.
Complainant Duff was represented by G. Bradley Snow, Esq;
Complainants Houlton Patrolman/Dispatcher and Command Unit, Maine
Association of Police ("MAP" or "union"), Messrs. O'Bar, Hyman
and Archer were represented by John G. Richardson, Esq., and
Daniel R. Felkel, Esq. The Town of Houlton ("Town") was repre-
sented by Thomas C. Johnston, Esq., and Matthew S. Raines, Esq.
The parties were afforded full opportunity to examine and
cross-examine witnesses, introduce documentary evidence, and make
argument. The parties filed post-hearing briefs which have been
considered by the Board.
We conclude that Chief Malone's intentional skewing of
evaluation scores did violate the Municipal Public Employees
Labor Relations Law and we will, therefore, fashion an
appropriate remedy to redress this violation and effectuate the
policies of the Act. We conclude, however, that Chief Malone did
not discriminate against Officer Duff and hereby dismiss his
complaint.
PRELIMINARY MATTER
The rule concerning sequestration of witnesses was invoked
in this case. Chair Chute excluded witnesses from the hearing
room during the testimony of other witnesses and extended the
scope of the rule to prohibit discussion about the case or
testimony outside of the hearing room over the course of the
proceeding. Chair Chute explained that the purpose of the rule
was to ensure "(e)ach of the witnesses is to come in and give
-2-
their own independent testimony." Chair Chute cautioned the
parties and the witnesses who were present at the beginning of
the hearing, and reminded the parties repeatedly that the rule
was in effect.
Chief Darrell Malone was a witness, but because he was also
designated as the representative of the Town of Houlton by its
attorney, he was not excluded from the hearing room during the
testimony of other witnesses. Chief Malone understood the order
of sequestration and the scope of its prohibition. Nevertheless,
he willfully circumvented the Chair's order and defeated the
purpose of the rule by discussing testimony with his secretary
between the third and fourth days of hearing.
Chief Malone knew his secretary would be called as a
witness, yet he spoke with her prior to her testimony about an
officer's previous testimony, her role in the promotional process
in question and, possibly, other topics related to this case. We
do not know whether the Chief's secretary was informed of the
scope of the Chair's order; nevertheless, the Chief's discussions
with her may have caused her to tailor her testimony to the
Chief's advantage.2
We are unable to determine the extent to which the
secretary's testimony may have been improperly influenced by
Chief Malone. His willful circumvention of the spirit, if not
the letter, of the rule has so discredited this witness as to
render her testimony not credible. We therefore conclude that an
appropriate remedy for Chief Malone's violation of this order is
to strike the entire testimony of the secretary, and we have done
so.
____________________
2 The secretary did not want to testify in this hearing, nor did
the Town intend to call her as a witness. She was subpoenaed to
testify by MAP's counsel. After disclosure of the Chief's violation
of the Chair's order, the secretary's testimony continued without
objection. Her testimony, if credited, was not crucial to either
party's case.
-3-
JURISDICTION
The jurisdiction of the Board to hear this case and to issue
a decision and order lies in 26 M.R.S.A. 968(5)(C) (1988).
FINDINGS OF FACT
Upon review of the entire record the Maine Labor Relations
Board finds the following facts:
1. In late 1995, Police Chief Darrell Malone announced that
four (4) positions were available on the Houlton police force:
two corporal positions, the position of patrol sergeant, and a
newly-created position of staff sergeant detective.
On November 29, 1995, Chief Malone announced the openings
for corporal and patrol sergeant; interested personnel were to
apply no later than December 15, 1995. In a separate memorandum
a few weeks later, Chief Malone announced the staff sergeant
detective opening. Interested personnel were to apply for this
position by December 29, 1995, and submit a r,sum, of qualifi-
cations "unique to investigative experience" no later than
January 12, 1996.
2. At this same time, the Town of Houlton and Maine
Association of Police ("MAP"), the bargaining agent for a unit
comprised of dispatchers, patrol officers, corporals, sergeants
and staff sergeants, were engaged in negotiations for a successor
collective bargaining agreement. Chief Malone and Town Manager
Allan K. Bean negotiated for the town. Sergeant Edward Archer
and Officer Carolyn Crandall were shop stewards for this unit and
participated in negotiations with the assistance of John
Richardson, Esq.
3. On November 29, 1995, the parties executed a new
contract. Article 9.6 of the contract provides that the
following factors shall be considered in all promotion decisions:
(a) ability to perform the work, (b) physical fitness, (c) past
-4-
performance, and (d) continuous service. The contract further
provides that continuous service shall be the determining factor
only where the other factors are relatively equal.
4. The Houlton Police Department enlisted the services of
Maine Municipal Association ("MMA") in connection with these
promotions. MMA's promotional process consists of four
components: a written examination, an oral board, a chief's
evaluation, and seniority. The scores for each component are
tallied by MMA personnel and applied to a particular formula to
arrive at a final score for each candidate.
MMA typically informs the hiring authority of each component
score only at the end of the entire process when final scores are
released. A chief's subjective evaluation is supposed to be done
without knowledge of applicants' scores in other components3 in
order to ensure the integrity of the process.
5. On December 21, 1995, Chief Malone announced that a
written examination would be administered by MMA on January 4,
1996. The same written examination was to be administered to all
candidates, regardless of the position(s) being sought.
6. Sergeant Archer and Patrol Officers O'Bar, Hyman and
Duff sat for the written examination on January 4, 1996, along
with four other candidates from within the police department.
MMA's Manager of Personnel Services and Labor Relations
administered the examination.
The candidates' ranking after the written test was as
follows:
(1st) Edward Archer
(2nd) Troy O'Bar
(3rd) Dana Duff
____________________
3 Except for the calculation of seniority points, which are easily
computed.
-5-
(4th) Officer "A"
(5th) Officer "B"
(6th) John Hyman
(7th) Officer "C"
(8th) Officer "D"
7. Shortly after the announcement of these openings, Archer
approached Chief Malone to question his decision to permit
certain officers to apply. Chief Malone permitted anyone with
three years of law enforcement experience to compete. The union
contended the literal meaning of contract language, as well as
past practice, required the requisite three years of experience
be continuous service in the Houlton Police Department
immediately preceding the promotion. There were two candidates
ineligible for promotion according to the union's interpretation
of the contract: Officer "B" and Officer "C". On January 5,
1996, in follow-up to his discussion with the Chief, Sgt. Archer
filed a class action grievance pertaining to the criterion used
by the Chief in determining eligibility to sit for this
examination and otherwise compete for these positions.
8. An oral board for the positions of patrol sergeant and
corporal was conducted on January 12, 1996.4 Candidates for this
position were given about one week's notice to prepare. The oral
boards were conducted by law enforcement personnel from Presque
Isle, the Maine State Police, and the U.S. Border Patrol.
9. The candidates' ranking for the three available
positions of patrol sergeant (1) and corporal (2), after the
written examination and oral board scores were combined and
seniority points were computed, was as follows:
(1st) Officer "A"
(2nd) Troy O'Bar
(3rd) A. John Hyman
_____________________
4 Edward Archer was not in the running for these positions since
he had already attained the rank of sergeant. Officers "A" and "C"
were candidates for these positions and also the staff sergeant
detective position.
-6-
(4th) Dana Duff
(5th) Officer "C"
(6th) Officer "B"
(7th) Officer "D"
10. On January 17, 1996, Sgt. Archer filed two grievances;
one concerned an alleged failure of the town to negotiate the
terms and conditions of the newly-created position of staff
sergeant detective, and the other concerned the Chief's failure
to abide by a new contractual requirement to arrange for
officers' uniforms to be cleaned. Chief Malone denied both
grievances, but he eventually made arrangements with a uniform
cleaning service.
11. On January 19, 1996, Sgt. Archer advanced the grievance
concerning eligibility for promotion to the third step of the
grievance process, the town manager's office. Town Manager Allan
Bean denied the grievance and the union filed for arbitration.5
In his January 24, 1996 response to the step III grievance,
Mr. Bean wrote:
I would also be remiss if I did not sound a cautionary
note concerning the increasingly personal and
derogatory nature of the wording of recent grievances.
Insubordination is not protected merely by being
presented in a grievance. May I suggest disputes
regarding the interpretation of the contract are better
couched in professionally appropriate language. To do
otherwise serves no legitimate or persuasive purpose.
12. Chief Malone scheduled a separate oral board for the
staff sergeant detective position. The Chief contacted the
Aroostook County District Attorney and requested Colonel Mac Dow
of the Maine State Police to enlist two other panelists with
experience in investigations.
Once he was notified of the availability of panelists, an
_____________________
5 Arbitration was held on August 13, 1996. On November 4, 1996,
the arbitrator ruled that the minimum qualification for promotion
established by Chief Malone did not violate the contract.
-7-
oral board was scheduled for January 24, 1996. The Chief
instructed his secretary to schedule the interviews and notify
the candidates. The Chief did not assign specific interview
times for the candidates. All candidates were given two days'
notice to prepare for the oral board.
13. After the written examination was administered, and
prior to the date of the oral board for staff sergeant detective,
Chief Malone contacted MMA's Manager of Personnel Services and
Labor Relations by telephone to obtain the written examination
scores of Sgt. Archer and Officers O'Bar and Hyman.6
14. On January 23, 1996, Officer Dana Duff withdrew his
application for the position of staff sergeant detective.
Officer Duff had been scheduled to work from 8:00 p.m. on
January 23, to 6:00 a.m. on January 24, and his oral board was
scheduled for 11:00 a.m. on January 24. Officer Duff notified
Chief Malone of his withdrawal in a memorandum which reads:
I will not be taking the oral board. I feel that 11:00
a.m. is too early after working all night. Thank you.
This was the only contact Officer Duff had with the Chief
concerning the oral board, and the Chief did not respond in any
fashion to Duff's note.
15. The candidates' ranking for the position of staff
sergeant detective, after the written examination and oral board
scores were combined and seniority was computed, was as follows:
(1st) Edward Archer
(2nd) Officer "C"
(3rd) Officer "A"
16. A component of MMA's promotional process within police
_____________________
6 Chief Malone may have obtained written examination scores of
other candidates as well. The chief testified he was not sure whether
he asked for all of the scores, but that "some of the officers"
requested their scores and he "got those."
-8-
departments is an evaluation by the chief of police. The chief's
evaluation, worth 20 points, is to address the following
categories: practical job knowledge as revealed in performance,
personal habits as revealed on the job, work habits, inter-
personal skills, and overall present promotional potential. The
chief is to complete these evaluations without knowledge of the
candidates' other scores.
The scale for grading the evaluations is as follows:
17 - 20 Very Good
14 - 16 Good
10 - 13 Acceptable
17. Chief Malone's evaluation scores for the candidates
were:
Corporal/Patrol Sergeant Staff Sergeant Detective
Officer "A" 19.5 Officer "C" 20.0
Officer "B" 19.5 Officer "A" 17.5
Officer "C" 19.5 Edward Archer 11.0
Officer "D" 18.0
Dana Duff 18.0
John Hyman 14.5
Troy O'Bar 12.0
18. Although Chief Malone's evaluations were dated
January 4, 1996, he did not submit them to MMA until January 25,
1996, when he mailed the grading sheets for both oral boards and
a seniority list.7 The Chief was able to review oral board
scores before he turned all of this material over to MMA. The
Chief's January 25, 1996 correspondence to MMA requests that
final results be mailed to Town Manager Bean.
19. The seniority list submitted by Chief Malone shows
Officer "C's" date of hire as "9/12/95"; however, this was the
_____________________
7 MMA had erred in computing seniority points. The union
discovered the error when the scores were posted, and filed a
grievance. Chief Malone granted the grievance and notified MMA to
adjust the scores. Adjustment of the seniority point scores did not
change the results.
-9-
date when Officer "C", while employed elsewhere, accepted the
Chief's offer of employment. Officer "C" did not start working
for the Houlton Police Department until October 21, 1995, three
(3) weeks after Officer Crandall's first day of work as a police
officer.8
Officer Crandall was the successful candidate for police
officer on October 1, 1995, even though she was the second-
highest scoring candidate, because of her performance in the job
interview. Officer "C" was rehired three weeks later without
going through a formal hiring process.
By creating this earlier hiring date for Officer "C", the
Chief attempted to give Officer "C" more seniority (and thus, job
security) than Officer Crandall. Job security was a concern at
this time, because one of these two positions was to be funded by
a federal grant which would expire three years later, and the
least senior officer would be let go at that time unless funding
was received from some other source.
20. According to the town charter, promotion decisions
ultimately rest with the town manager. The only discussion Chief
Malone and Town Manager Bean had about these promotions is one in
which the Chief recommended to the town manager, prior to the
start of the promotional process, that candidates with the
highest final scores be promoted. In fact, the highest-scoring
candidates were promoted.
Town Manager Bean had limited opportunity to observe
officers on the job, or to evaluate their comparative
qualifications for these promotions. Mr. Bean testified he would
have promoted Archer, O'Bar, Hyman, or Duff, had they been the
highest-scoring candidates for these positions.
_____________________
8 Officer Crandall was a dispatcher for 4-5 years, and one of the
shop stewards for this unit, prior to becoming a police officer.
-10-
21. MMA completed its compilation of scores and mailed them
to the town manager on January 30, 1996. The town manager kept
the results in a sealed envelope until the arbitration decision
was issued concerning qualifications for promotion. The town
manager sought agreement from MAP's attorney to fill the
positions, then proceeded to post the results, including the
candidates' scores in each component of the process, on
November 20, 1996.
22. The following candidates were promoted:
Staff Sergeant Detective: Officer "C"
Patrol Sergeant: Officer "A"
Corporals: Dana Duff and Officer "B"
23. Assuming no change to the Chief's evaluation scores for
all of the other candidates:
Sergeant Archer would have been promoted to the
position of staff sergeant detective if Chief Malone
had rated him at 13 rather than 11;
Troy O'Bar would have been promoted to the corporal
position awarded to Dana Duff if Chief Malone had
rated him at 15 rather than 12; he would have been
promoted to the corporal position awarded to Officer
"B" with a 12.5 rating;
John Hyman would have been promoted to the corporal
position awarded to Duff if the Chief had rated him
at 18 rather than 14.5; he would have been promoted to
the other corporal position with a rating of 16.
Even if the Chief had rated Officers O'Bar and Hyman at
the perfect score of 20, neither would have outscored
Officer "A" for the position of patrol sergeant.
24. After the scores were posted in November, 1996, Chief
Malone met separately with Officers O'Bar and Hyman, at their
_____________________
9 Officer "C" scored higher than Officer "B" in the corporal/
patrol sergeant race; however, when Officer "C" received the promotion
to staff sergeant detective, Officer "B", as the next highest scorer,
was promoted to corporal.
-11-
insistence.10 While they had hoped to go through the evaluations
point by point, the Chief would only agree to discuss with them
what he considered to be ways to improve. O'Bar and Hyman did
not question or dispute some of the concerns raised by the Chief,
either at that time or at hearing. Neither officer had been
reprimanded or even counseled about performance issues prior to
this promotional process.
25. Pie charts depicting percentages of summonses and
arrests, complaints, and accidents handled by the Houlton Police
Department reveal that, as between the three candidates for the
position of staff sergeant detective, Sgt. Archer handled the
highest percentage of summonses and arrests from 1992 through
1995, and the highest percentage of complaints from 1992 through
1995. Sergeant Archer handled the highest number of accidents in
1992 and 1994, was tied for highest with Officer "A" in 1993, and
was the second highest in 1995.
26. Pie charts depicting these same statistics, as between
candidates for the positions of patrol sergeant and corporal,
reveal that Officer "B", who joined the police force in June,
1994, handled the highest percentage of summonses and arrests in
1994 and 1995. Officer Hyman handled the highest percentage of
summonses and arrests in 1992 and 1993, the second highest in
1994, and the third highest in 1995. Officer Duff handled the
second highest percentage in 1995, and the third highest in 1994.
Officer "B" handled the highest percentage of complaints in
1995 and the third highest in 1994. Officer O'Bar handled the
highest percentage of complaints in 1993 and 1994, and the second
highest in 1995. Officer Hyman handled the highest percentage of
complaints in 1992, the second highest in 1993 and 1994, and the
_____________________
10 After the promotions were announced, the union filed a grievance
on behalf of the complainants. This grievance was withdrawn in
connection with the Town's motion to defer heard at the prehearing
conference in this case. Chief Malone, who would not meet with Hyman
or O'Bar initially, met with them after the grievance was filed.
-12-
third highest in 1995.
In the category of accidents, Officer Hyman handled the
highest percentage of accidents in 1992, 1993 and 1994, and
Officer O'Bar handled the second highest percentage of accidents
in 1994 and 1995. Officer Duff handled the second highest
percentage of accidents in 1993.
27. Sergeant Archer and Officer "C" were hired as police
officers within weeks of each other in 1985. In 1987, Archer and
Officer "C" were selected by the District Attorney's office from
a number of volunteers to conduct child abuse investigations.
Two years later, Archer was promoted to sergeant and Officer "C"
was promoted to corporal.
In January, 1995, Sgt. Archer and Officer "C" applied to the
Attorney General's ("AG's") office for a position as detective.
Archer, Officer "C", and one other candidate were selected as
finalists for the position, from among a field of about 150
candidates. Officer "C" was selected for the job, although the
Director of Investigations for the AG's office testified it was a
"tough call" between Sgt. Archer and Officer "C."
Officer "C" left the Houlton Police Department to accept the
position with the AG's office in Augusta in January, 1995. In
October, 1995, he was rehired by Chief Malone and resigned from
his position with the AG's office in order to return to Houlton.
When he left the Houlton Police Department, Officer "C" lost all
seniority; therefore, at the time of these promotions, he had
less than a year of service credited toward his seniority score.
28. At some point in time prior to leaving the Houlton
Police Department, Officer "C" was assigned a permanent day shift
and permitted to work in plain clothes as an acting detective.
Although Officer "C" declined to file a grievance (for
reclassification and higher pay) concerning his full-time work
outside of classification, Sgt. Archer spoke with the Chief
-13-
informally about it.11
In May, 1994, Sgt. Archer informed Chief Malone that he was
finding it increasingly difficult to effectively investigate
child abuse cases because of his schedule (rotating shifts) and
duties as sergeant. He had been coming in on his days off, in
order to perform investigative duties. Archer informed Chief
Malone that, since the department now had a full-time acting
detective in Officer "C", he would no longer be taking on child
abuse investigations; however, Archer did assist in these
investigations after this date. Sergeant Archer's decision to
no longer take these cases had no impact on Chief Malone's
evaluation of Archer for this promotion.
29. In February, 1995, the Aroostook County District
Attorney and Assistant District Attorney wrote letters of
recommendation for Sgt. Archer.
The District Attorney's reads, in part:
. . . I have known and worked with Edward Archer for
nearly a decade . . . .
. . .
Over the years I have developed great respect for both
his skills and his worth. Not only is he competent,
but he is honest, hard working and caring. . . .
Whenever I or any of my staff need to have the Houlton
Police Department accomplish some task, whether of
great or small moment, we have no doubt about its
completion when we have reached Ed to make the request.
We are assured when we ask him to perform, obtain or
report something, it will be done or there is an
exceptional reason why not.
. . .
_____________________
11 The staff sergeant of the Houlton Police Department, Staff Sgt.
Pelletier, declined to sign-on to a grievance in 1994, when one was
filed concerning assignment of lieutenant duties to him. On the other
hand, Complainant Hyman did file a grievance in 1995 which sought
higher compensation for performing supervisory duties.
-14-
Whatever Ed elects to do I am certain he will do with
caring and preparation. Whoever has Ed working for
them has a valuable asset worth protecting.
The Assistant District Attorney's reads, in part:
I became professionally acquainted with Ed Archer in
1991 . . . . He is a dedicated, caring, hardworking
professional. His investigations and follow-up reports
have always been thorough and concise. . . .
Ed, in my opinion, is a very fair and honest man.
Since my employment in 1991, I have never received a
complaint from an attorney, judge or citizen regarding
Ed's police work.
. . .
It is my belief that Ed Archer is a definite and
indispensable asset to the Town of Houlton.
30. A few months prior to this promotional process, Town
Manager Bean received a complaint from a citizen who was not
pleased with the progress of an investigation conducted by Sgt.
Archer. A little over a week after the complaint was received,
the town manager forwarded it to Chief Malone and asked him to
check into it. This was the first time the Chief had been asked
by a town manager to review the work of a police officer. The
Chief checked with Sgt. Archer and, as far as anyone can recall,
nothing more came of this complaint.
31. The Houlton Police Department has 19 employees, with a
chain of command (following the promotions in question) as
follows: the chief, two (2) staff sergeants, one (1) patrol
sergeant, three (3) corporals, seven (7) patrol officers, four
(4) dispatchers, and one (1) secretary-clerk. All of the
employees, except the Chief and the secretary-clerk, are in the
bargaining unit represented by MAP. With the exception of
Officer "C", all of the unit members were also union members at
-15-
the time of the Chief's evaluation.12
32. The union did not have formal, regularly-scheduled union
meetings. If there was discussion concerning grievances,
contract negotiations or working conditions, it occurred in the
so-called "back room" of the department where the officers took
breaks, ate meals, and socialized.
There was an obvious split in the department between those
who actively supported MAP's activities and those who did not.
Sergeant Archer and the other shop steward, and Officers Hyman
and O'Bar, were considered by everyone in the department,
including Chief Malone, to be strong union supporters at the time
of the Chief's evaluations. The staff sergeant and the two
individuals who were promoted to sergeant, however, were not
vocal proponents of the union, were reticent to file grievances,
and would inform Chief Malone about union discussions in the
"back room."
In his post-promotion discussions with Officers Hyman and
O'Bar regarding ways to improve, Chief Malone said to both of
them that "back room talk had no value," and that he knew more
than they thought he knew about what was said back there.
33. Dana Duff was hired by the Houlton Police Department in
1974, and was the shop steward for this bargaining unit for many
years during the 1980s. Duff was an active shop steward; he
filed numerous grievances and successfully represented the union
in 4 of 5 arbitrations. Chief Malone came in as chief at the end
of Duff's term as steward. Duff resigned from the position of
_____________________
12 Officer "C" was a union member prior to leaving the department
for the AG's office. He was not eligible for union membership at the
time of the Chief's evaluation, however, because he had not yet been
with the department the requisite 6 months. Officer "C" waited until
shortly after his promotion in November, 1996, to rejoin the union.
-16-
shop steward in 1989 after he was denied a promotion.13 Duff
resigned because he was "tired of fighting with [the Chief]" and
he was sure that the Chief "got tired of listening to [him]."
34. Troy O'Bar was hired by the Houlton Police Department as
a dispatcher in 1987, after an unsuccessful application to become
a police officer. O'Bar applied twice more for the position of
police officer before his successful bid in 1990. O'Bar
considered filing a grievance about his repeated non-selection
and this information got back to Chief Malone. The Chief
mentioned this to O'Bar and said something to the effect that he
couldn't hire O'Bar to the position if he filed a grievance
because it would look like he was "caving-in to the Union."
O'Bar has been the secretary-treasurer of the Union since
1992. In this capacity he receives bank statements at the police
station addressed to the "Houlton Police Organization [or
Association]." Chief Malone, who opens all mail, hands these
statements over to O'Bar.
35. Sergeant Archer became a shop steward in 1991, two years
after his promotion to sergeant. At that time, Chief Malone and
the lieutenant met with Sgt. Archer and discussed with him the
difficulty in holding positions as both shop steward and
sergeant. Archer felt the intended message was that his career
in the department was doomed if he remained shop steward.
36. In May, 1994, the lieutenant of the Houlton Police
Department was placed on administrative leave pending an
investigation into charges he had falsified a police report for
personal gain. Sergeant Archer reported the charge to Chief
Malone after it was reported to Archer. Chief Malone immediately
referred the matter to the AG's office for investigation and the
lieutenant was placed on leave.
_____________________
13 Duff grieved the denial of promotion; he lost the grievance at
arbitration.
-17-
Chief Malone was very upset about these charges. The
lieutenant was second-in-command to the Chief, and they had
worked well together on the police force for 24 years. The Chief
knew, on the other hand, that relations between this lieutenant
and the union had been strained over the years and Archer had
informed the Chief that officers were against the lieutenant's
return. The charges against the lieutenant were reported in the
press, and tension grew at the police department over the next
few months.
37. In July, 1994, Chief Malone informed Archer that the
AG's office did not intend to prosecute the lieutenant, and that
the lieutenant may be returning to the department. Archer passed
this information on to the other shop steward and it spread
throughout the department. The shop stewards proposed a vote of
no confidence in Chief Malone, because they believed he was not
doing everything within his power to prevent the lieutenant's
return despite evidence of his wrongdoing.
Talk of the vote of no confidence got back to Chief Malone
from Staff Sergeant Pelletier and from the Chief's secretary, who
told the Chief that Sgt. Archer and the other shop steward were
heading up the campaign. Word got to the town manager that "the
union was holding the vote of no confidence." At one point,
Chief Malone told Sgt. Archer that he (Archer) had "orchestrated"
this whole situation for his own personal gain.14
38. Allan Bean became the town manager of Houlton in August,
1994, just weeks after the lieutenant was first put on adminis-
trative leave. Shortly after Mr. Bean began as town manager,
Sgt. Archer hand delivered a grievance to him. This was the
_____________________
14 The proposed vote of no confidence in the Chief was never taken.
While the lieutenant was on leave pending investigation of the
falsified report charge, he was charged with assaulting two employees.
His leave was extended pending investigation into those charges, and
he was eventually dismissed in November, 1994, for the assaults. He
was criminally prosecuted for the assaults as well, and was convicted
for them in June, 1995.
-18-
first time the town manager and the shop steward met. Town
Manager Bean took the grievance from Archer, slammed his hands
down on his desk, and asked: "Is there anything else?" Archer
left and filed all subsequent grievances by mail.
During the 1994-95 negotiations, Bean refused to accept the
fact that Archer and Crandall were co-stewards. He would look at
Archer and say, "Where is THE steward?" and tried to negotiate
the number of stewards MAP could have.
39. In September, 1994, Staff Sergeant Pelletier complained
to Chief Malone about Sgt. Archer's failure to follow "standard
operating procedures" ("SOPs") ranging from being out of uniform
by not wearing his hat on several occasions to failing to fill
the cruiser's fuel tank. Chief Malone understood that Staff Sgt.
Pelletier and Sgt. Archer had different approaches to police work
(Pelletier was a "by-the-book" officer; Archer favored
"community policing" philosophies). He was frequently approached
by both men with their complaints about each other. Staff Sgt.
Pelletier felt the Chief was too lenient at times when it came to
requiring officers to follow the SOPs.
On this occasion, Chief Malone instructed Staff Sgt.
Pelletier to put his concerns about Sgt. Archer in writing.
Pelletier submitted a memorandum detailing Archer's alleged
violations of the SOPs dating back to January 1994. Chief Malone
held on to this memorandum for several weeks without mentioning
it to Sgt. Archer. Archer raised the subject with the Chief
after he had learned about the memorandum from someone else.
Chief Malone hoped the two men could work out their differences
without formal intervention. He took no further action on it at
that time.
40. On February 13, 1995, without any additional alleged
violations of the SOPs on the part of Archer, Staff Sgt.
Pelletier issued a written reprimand to Sgt. Archer for violating
the SOPs. Chief Malone approved the reprimand, and Archer filed
-19-
a grievance. No one in the department had ever received a
written reprimand before for any of the alleged SOP violations.15
Officers could not believe Archer was disciplined for these
alleged violations and it negatively impacted the morale in the
department. Chief Malone could not explain what prompted the
reprimand after months of inaction on his part.
41. Town Manager Bean instructed Chief Malone to grant
Archer's grievance concerning the reprimand for the reason that
the alleged violations, some dating back to January, 1994, were
stale. Sgt. Archer had requested a letter of apology from Chief
Malone as a remedy for the grievance. In response to his
request, Chief Malone wrote a memorandum addressed "To whom it
may concern," dated April 10, 1995, which reads, in part:
. . .
Ed Archer has proven himself to be a professional
Officer, a real compassion for people. I chose him and
one other Officer to investigate child abuse for the
Houlton Police Department because I saw in him the
compassion he has for children and victims of crime. I
have had many occasions to review his work, and I find
that he performs his duties in a professional manner.
I find Ed Archer to be hard working, honest and with
integrity that cannot be questioned. He truly believes
in what he is doing as a Police Officer. He has
respect from other Police Officers and from other Law
Enforcement Agencies. . . .
. . .
42. In addition to the grievance about Archer's written
reprimand, the union filed grievances in 1995 concerning staffing
levels and assignments to patrol the town dump. The grievance
concerning patrol of the town dump was advanced to the town
manager's office. Town Manager Bean denied the grievance, but
the issue was eventually resolved.
_____________________
15 Officer "C" was well known for his unkempt appearance, yet he
never received a verbal warning or written reprimand for being out of
uniform.
-20-
43. Sergeant Archer resigned from the Houlton Police
Department in February, 1997, to accept the position of Chief of
Police in Lincoln, Maine.
44. There was a causal connection between employees' union
activism or lack thereof and Chief Malone's evaluation scores.
The more active an employee was in the union, the lower the
evaluation score given by Chief Malone.
45. The conduct and comments of Chief Darrell Malone and
Town Manager Allan Bean outlined in paragraphs 11, 32 and 38 tend
to interfere with, restrain and coerce employees in the free
exercise of employee rights under the Municipal Public Employees
Labor Relations Law.
DISCUSSION
Our relevant decisional law is well established. Section
964(1)(A) prohibits an employer from engaging in conduct which
interferes with, coerces or restrains union activity. A
violation of section 964(1)(A) does not turn on the employer's
motive, or whether the coercion succeeded or failed, but on
"whether the employer engaged in conduct which, it may reasonably
be said, tends to interfere with the free exercise of employee
rights under the Act." Jefferson Teachers Association v.
Jefferson School Committee, No. 96-24, slip op. at 25 (Me.L.R.B.
August 25, 1997); MSEA v. Department of Human Services, No. 81-
35, slip op. at 4-5, 4 NPER 20-12026, (Me.L.R.B. June 26, 1981)
(quoting NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948)).
Section 964(1)(B) prohibits a public employer from
encouraging or discouraging membership in any employee
organization by discrimination in regard to hire or tenure of
employment. This prohibition extends to discrimination in regard
to promotional opportunities as well. See MSEA v. Department of
Transportation, No. 81-34, 5 NPER 20-13019 (Me.L.R.B. March 31,
-21-
1982). In order to support a discrimination claim, the
complainant has the burden of proving by a preponderance of the
evidence that: (i) he engaged in protected activity; (ii) the
decision-makers had knowledge of complainant's participation in
protected activity; and (iii) there is a relationship, or "causal
connection," between the protected activity and the employer's
adverse employment action. Casey v. Mountain Valley Education
Association and School Administrative District No. 43, Nos. 96-26
& 97-03, slip op. at 27-28 (Me.L.R.B. October 30, 1997) (citing
Teamsters Union Local #340 v. Rangeley Lakes School Region, No.
91-22, slip op. at 18, 14 NPER ME-23005 (Me.L.R.B. January 29,
1992)).
Even if a complainant proves these three essential elements,
an employer may still avoid liability if it is able to prove by a
preponderance of the evidence that the employment action was
based on unprotected activity as well, and the same action would
have been taken regardless of the employee's protected activity.
MSEA v. State Development Office, 499 A.2d 165, 168-69 (Me.
1985).
We will first apply this analysis to Officer Duff's
complaint, and then address the complaint filed by MAP.
Failure to Promote Dana Duff to Patrol Sergeant or Staff Sergeant
Detective
Dana Duff contends that his several years as shop steward,
actively representing employees in the police department, caused
Chief Malone to deny him a promotion to the position of patrol
sergeant or staff sergeant detective.16 Complainant Duff's union
activity over the years, and Chief Malone's knowledge of it,
establish the first two prongs of his burden of proof; however,
Duff is unable to establish a causal connection between his union
_____________________
16 Dana Duff was successful in his bid for promotion to the
position of corporal.
-22-
activism and his unsuccessful bid for these positions.
Officer Duff was not promoted to patrol sergeant because his
oral board scores brought down his high rating after the written
examination. There is no evidence that Chief Malone had any
influence over the scores given by the panelists on that board.
Officer Duff's theory that the Chief purposely bypassed him
for promotion to staff sergeant detective by "readministering" an
oral board, and not giving him adequate time to prepare for this
second oral board, fails as well. Chief Malone determined from
the start, and legitimately so, that the promotion decisions
needed to be made on two "tracks": the positions of corporal and
patrol sergeant are similar to each other, but require different
skills and abilities than those required of a detective. The
oral board for the position of staff sergeant detective was a
different oral board entirely, not a "readministration" of the
first oral board.
Before Officer Duff even took the written examination, the
Chief had announced the positions separately, scheduled different
application deadlines, and asked for different application
materials from those applying for the detective job. Also, the
Chief completed separate evaluations for those officers who
applied for the corporal and sergeant positions, as well as for
the detective position. All candidates were given the same short
notice as Officer Duff received for the detective oral board, and
the Chief's secretary scheduled them without regard to the
candidates' work schedules. The Chief's participation in this
part of the process was minimal, with little opportunity to
influence the results of the oral board.
Officer Duff took himself out of the running for staff
sergeant detective. We are unwilling to draw any inference from
the Chief's failure to follow up on Officer Duff's withdrawal.
Union animus did not play a part in his non-selection for the
position of patrol sergeant or staff sergeant detective.
-23-
Officer Duff's section (1)(A) claim is derivative; that is
to say, his claim that the Chief interfered with, restrained and
coerced employees in the exercise of protected rights in
violation of section (1)(A) derives from the allegation of
discriminatory treatment of Officer Duff in violation of section
(1)(B), not from conduct independent of the alleged
discrimination. See Teamsters Union Local #340 v. Rangeley Lakes
School Region, No. 91-22, slip op. at 22, 14 NPER ME-23005
(Me.L.R.B. January 29, 1992) (discriminatory discharge of union
organizer inherently interferes with the free exercise of
employee rights in violation of section 964 (1)(A)). Since
Officer Duff's discrimination claim is without merit, his section
(1)(A) claim must also fail. Litchfield Educational Support
Personnel Association v. Litchfield School Committee, No. 97-09,
slip op. at 21 (Me.L.R.B. July 13, 1998). Accordingly, we
dismiss Dana Duff's complaint.
MAP Complainants Meet Their Burden of Proof
The MAP Complainants allege their union activism caused
Chief Malone to manipulate his evaluation scores in order to
adversely affect their overall standing in the promotional
process. The Complainants have presented sufficient evidence to
meet their burden of proving a causal connection between their
union activism and the Chief's evaluation scores.
These Complainants, as a group, were considered by all
members of the Houlton Police Department, including Chief Malone,
to be active members of MAP. Individually, Edward Archer had
been a shop steward for many years; he had represented MAP in
negotiations and actively pursued grievances at the Chief's level
and beyond. Troy O'Bar had been the secretary-treasurer of MAP,
and Chief Malone knew he held some position of authority in the
union because he knew to forward mail addressed to the "Police
Organization" to O'Bar. John Hyman, in addition to having filed
a grievance in 1995 seeking higher pay when others refused to do
-24-
so, had been supportive of the union in "back room talk" and this
information had a way of getting back to the Chief.
These officers, who were unquestionably considered active
union members in a workplace where the lines between active and
not active were clearly drawn, were poised for promotion when one
considers their overall ranking without Chief Malone's
evaluation. Archer was in first place for the staff sergeant
detective position; O'Bar was in second place and Hyman in third
for one of the three available positions for which they had
applied. The Chief's evaluation could not put them in a better
position for promotion, it could only defeat their chances. We
conclude that the Chief's conduct was calculated to defeat their
chances.
We note at the outset that Chief Malone was focused on
scores. Before the promotional process had even begun, he
recommended to the town manager that the highest-scoring
candidates, no matter who they were, should be promoted. This
has not always been the case at the Houlton Police Department.
According to the town charter, the town manager is given the
final say in promotional decisions regardless of scores. Town
Manager Bean promoted Dispatcher Crandall to police officer in
October, 1995, because of her performance in an interview, not
because she was the highest-scoring candidate for that job.
Chief Malone's early focus on scores, in retrospect, is evidence
that he intended to skew his evaluations.
We are unable to determine exactly when the Chief completed
his evaluations. He may have filled out the forms prior to the
written examinations and oral boards. The Chief's evaluation
scores are so blatantly low, given the scores of the other
candidates, that whatever his knowledge of the other component
scores, a strong inference of discrimination arises. Regardless
of when he filled out the forms, we find that Chief Malone held
on to them until he knew all of the scores for the other segments
-25-
of the promotional process in order to ensure that his ratings of
these three union activists were low enough to defeat their
chances of promotion.
We find that the Chief held on to his evaluations until
January 25, 1996, and that he knew the other component scores by
then, based on several facts. First, the Chief's testimony
concerning his knowledge of written examination scores prior to
completion of the process was extremely inconsistent and
illustrative of his selective memory. At first he did not recall
when he had learned the scores; then he recalled having gotten
some of the scores prior to the end of the process, but was not
sure whether he had called MMA, or MMA had mailed them to him.
Later in his testimony, he remembered having called MMA to get
scores about a week or two after the written examination, because
some of the officers had wanted to know them. Later still, he
could not recall whether anyone other than Archer had asked to
receive their score prior to completion of the process. In the
end, Chief Malone admitted having known the written examination
scores of Edward Archer and some of the other officers. In light
of all the evidence, it is reasonable to conclude that "some of
the other officers" included the other union activists, O'Bar and
Hyman.
The Chief testified that he had collected the oral board
scoring sheets from the panelists on January 24, and that he had
been able to look at them prior to mailing them to MMA. We
conclude that he did look at these scores because he made no
attempt to deny having done so. Thus, by the evening of
January 24, 1996, Chief Malone knew the written examination
scores and the oral board scores, and he could easily compute
seniority points. The Chief was also, at this point, still in
possession of his evaluations. The Chief mailed the evaluations,
with all of the other application materials, on the following
day.
-26-
Chief Malone did not hand his evaluations to the MMA
representative on January 4, 1996, the day of the written
examination, as he insists he did. We base this factual finding
on several pieces of evidence. The MMA representative recalled
administering the test to the Houlton police candidates, but
could not recall whether the Chief handed over his evaluations
that evening. He testified that the Chief must have mailed his
evaluations because he (MMA representative) did not go back to
Houlton after the evening of the written examination.
If the Chief had handed his evaluations to the MMA
representative on January 4, there should have been an evaluation
of Dana Duff for the staff sergeant detective position in MMA's
file. Duff was still a candidate for this position on January 4,
yet this Chief's evaluation of him is not part of MMA's file.
The Chief had no explanation for the missing evaluation, except
that he might have called MMA after Duff withdrew. We find this
hard to believe because the Chief did not recall making any such
call and the MMA representative testified that he did not remove
anything from the file. A logical explanation for this missing
evaluation, and the one that makes sense to us, is that the
evaluations were sent to MMA after Duff had withdrawn from
consideration for this position on January 23, 1996. The Chief
either pulled Duff's evaluation after the 23rd, or he had not yet
completed his evaluations by that date and decided there was no
need to do one for Duff since he had withdrawn.
We credit John Hyman's testimony that he was told by the
Chief's secretary that evaluations were done after the written
examination and all promotion materials were mailed together to
MMA. Hyman was a serious and credible witness. He answered each
question in a thoughtful and forthright manner, whether or not
his answers were helpful to his case. He testified that he
immediately comprehended the significance of this information, no
doubt unwittingly relayed by the Chief's secretary, and that she
tried to take it back a few days later when Hyman and Archer
-27-
appeared at her home to talk about this. She must have realized
that the union would make something of this, and wished to
distance herself at that point. We believe this happened just as
Hyman testified that it did.
The only correspondence from Chief Malone to MMA was the
letter dated January 25, 1996, the day after the detective oral
board, the final component in the promotional process. Although
that letter does not refer to any enclosures, we conclude that
this was the means by which the Chief submitted all of the
promotion materials together, including the evaluations, just as
his secretary had told Hyman.
Chief Malone repeatedly insisted that he handed his
evaluations to the MMA representative on January 4, 1996. This
was one of the only factual issues in this case of which the
Chief had any recollection, yet the evidence leads us to conclude
otherwise. We found the Chief's excessive failure to recall even
the most obvious details surrounding this matter frustrating, and
it severely damaged his credibility.
The MAP complainants were the highest scorers when all of
the objective portions of the promotional process were computed,
but were scored at the bottom by Chief Malone's subjective
evaluations. The blatant gap between the Chief's evaluation
scores of these three union activists and those of the other
candidates for promotion was not a coincidence. This evidence,
together with the evidence of union animus discussed below,
sufficiently establishes the requisite causal connection between
the complainants' union activism and their unfavorable scores.
Evidence of Union Animus
Typically, evidence of union animus is circumstantial. Rare
is the case in which an employer voices a disdain for unions or
announces an intent to treat employees unfavorably based on union
activism. The determination of whether union animus exists in a
-28-
workplace is more a question of subtleties, innuendo and
atmosphere. We conclude after this lengthy hearing and extensive
testimony that there was an anti-union atmosphere at the Houlton
Police Department when Chief Malone completed his evaluations,
and that this accounts for the Chief's skewed evaluation scores.
In January, 1996, the Houlton Police Department had just
completed negotiations for a successor collective bargaining
agreement. During these negotiations, Town Manager Bean had
conveyed a lack of respect for the union's negotiator, had
feigned confusion about his (Archer's) role in negotiations and
had ignored him on occasion. Mr. Bean's lack of respect for
Archer as shop steward was evident from the beginning of their
labor-management relationship, when he slammed the desk and
curtly dismissed Archer from his office. We would expect
something more in the nature of a handshake on first meeting the
employees' shop steward from a new town manager interested in
working cooperatively with the union.
This lack of respect for a union steward is a symptom of a
lack of respect, generally, for unions and the collective
bargaining rights of employees.17 The town manager's union
animus would have been evident to Chief Malone at negotiations
and in their dealings related to grievances. It created an
atmosphere of disrespect for union activism which would enable
the Chief to skew evaluation scores and manipulate seniority
dates (as he did with Officer "C's") without fear of disapproval
from the town manager's office.
Any good will which may have existed upon signing of the
collective bargaining agreement in November, 1995, quickly
_____________________
17 Indeed, Town Manager Bean's lack of respect for the collective
bargaining rights of town employees was evident in the hearing before
the Board. Mr. Bean's demeanor was flippant. [For example, see:
reference to "alphabet soup" for the acronym of a union he worked with
for 25 years in the Air Force (T.1269); reference to "body count" for
statistical data (T.1296); interchange with Chair Chute (T. 1383);
interchange with Member Gilmore (T. 1423).]
-29-
dissipated when the Chief failed to obtain a cleaning service for
officers' uniforms in a timely fashion, pursuant to the new
contract. The Chief's explanation for the delay did not impress
us. Archer needed to file a grievance about this during the
promotional process in order to obtain a right guaranteed by the
new contract.
Archer also questioned the Chief personally before filing a
grievance on January 5, 1996, concerning the Chief's decision to
permit Officer "C" (who had just returned from the AG's office)
to compete for these promotions. We believe Chief Malone was
more than a little annoyed that the union steward would question
his decision, because the Chief believed Officer "C" was the
perfect candidate for staff sergeant detective, and he wanted to
promote him. The union filed a third grievance prior to
completion of the promotional process related to the town's
failure to negotiate the terms and conditions of this newly-
created position.
Several grievances had been filed during the year preceding
these promotions and much union activity had occurred around the
time of this promotional process. Discussions about these union
activities had occurred in the "back room" at the police
department. Chief Malone's advice to Hyman and O'Bar about ways
to improve included the chilling remark about "back room talk"
having no value, and his having known more than the officers
thought he knew about what went on back there. Chief Malone was
not referring to ordinary gossip or chit-chat that had gone on in
that area. This would have been of no concern to him in the
context of promotional decisions. We conclude that he was
referring to the talk in the back room about working conditions
and grievances, and that his remark was intended to restrain
legitimate union activity.18 Whether or not he intended to
_____________________
18 This warning about "back room talk" was not unlike the Chief's
comment to O'Bar when he considered filing a grievance about his
repeated non-selection for police officer. The Chief's message on
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inhibit union activity, it was reasonable for O'Bar and Hyman to
interpret his remarks in this fashion. For this reason, we find
the Chief's warning to O'Bar and Hyman constitutes a violation of
section 964(1)(A), and is evidence of union animus.
We also find that Town Manager Bean's January 19 response to
a grievance, wherein he warns union members that "insubordination
is not protected merely by being presented in a grievance," was
threatening and would have a natural tendency to chill any
further filing of grievances. This remark, likewise, constitutes
a violation of section 964(1)(A). His instruction that "disputes
regarding interpretation of the contract are better couched in
professionally appropriate language" is further indication of his
general lack of respect for the union. Labor-management
relations within the Houlton Police Department had not been
running smoothly at the time of these promotions. Animosity was
running high.
There was extensive testimony concerning the charges against
the lieutenant, the AG's investigation, the proposed vote of no
confidence, the additional charges against the lieutenant of
assaulting two police department employees, and his eventual
discharge and criminal conviction for the assaults. The Houlton
Police Department was certainly in a state of turmoil during this
period between June, 1994, and June, 1995. Chief Malone was as
upset as anyone, if not more so, since the lieutenant had been
his "right-hand man" for so many years. We have no trouble
concluding that the aftershock of this troubling time lasted for
many months after the lieutenant's conviction in June, 1995.
This chain of events regarding the lieutenant was set in
_____________________
both occasions was the same: if you file a grievance (or participate
in union discussions), you are reducing your chances of advancement in
the department. On the other hand, we do not agree with Sgt. Archer's
interpretation of the Chief's comments related to the complications
with a sergeant serving as shop steward. We agree that this dual role
may cause difficulties. See Teamsters Union Local 340 v. Town of
Fairfield, No. 94-01, slip op. at 52 (Me.L.R.B. December 5, 1994).
-31-
motion when Archer approached Chief Malone about the lieutenant's
having falsified the police report. In these circumstances, we
find it easy to believe that Chief Malone, in a moment of anger
and frustration, would accuse Archer of "orchestrating" the
entire chain of events for personal gain.19 Chief Malone
testified that Archer had done the right thing by coming forward
with the falsified police report. We do not question whether the
Chief honestly believed this; however, we cannot see how the
Chief could have believed that the vote of no confidence in
himself had been the right thing to do, and he had every reason
to believe that Archer, as shop steward, had "orchestrated" it.
There is no question the Chief had been informed that the
proposed vote of no confidence had been initiated by the shop
stewards. There is also no question that Town Manager Bean
understood the vote of no confidence to be union-driven.20
Archer and Crandall had initiated the proposed vote of no
confidence in the Chief as representatives of the police
department's union, not as concerned officers in positions of
authority within the department.
The lieutenant's conduct and the proposed vote of no
confidence upset the department during the second half of 1994.
The reprimand of Sgt. Archer in February, 1995, and the grievance
of it which followed, kept labor-management relations on edge.
No one had ever been reprimanded for the reasons cited in
Archer's reprimand. The timing of the reprimand of this active
shop steward is highly suspicious, coming as it did without any
_____________________
19 In light of Archer's rank as sergeant and his standing as a
leader among police officers, he would have been a likely candidate
for the lieutenant's position and, perhaps, even the Chief's position.
20 The fact that the only non-unit member in the department was
invited to participate in the union's discussions about the vote of no
confidence does not make it any less of an activity organized by the
union. Town representatives were not invited to participate in this
effort, as was the case in Teamsters v. City of Calais, No. 80-29
(Me.L.R.B. May 13, 1980), cited by the Town in its brief.
-32-
additional violations alleged and after months of inaction on
Chief Malone's part. Chief Malone testified that he had hoped he
could somehow bring Staff Sgt. Pelletier and Sgt. Archer together
to resolve their differences short of disciplinary action after
the original memorandum from Staff Sgt. Pelletier; yet, he could
not describe any effort on his part to do so. Nor could he
explain what it was that finally caused him to agree to the
February, 1995, reprimand of the shop steward.
We believe Chief Malone, motivated by Archer's role in the
proposed vote of no confidence, reprimanded him in February,
1995, in order to begin to build a case against his advancing any
further in the department. Between the date of the initial
memorandum concerning alleged violations of the SOPs, and the
date of the reprimand, the lieutenant had been discharged from
the police department and Officer "C" (the acting detective) had
left to take the job at the AG's office. There were now two (2)
vacancies in positions Sgt. Archer would probably find desirable.
A reprimand in his file could be used to justify denying him any
such promotion.
Archer filed a grievance about this, and a few other
grievances, prior to the promotional process in question. He
then filed three (3) additional grievances once the process
began. Chief Malone knew that Archer, Hyman and O'Bar were
active union members during this period of labor-management
discord. Chief Malone used his chief's evaluations to
communicate to these officers and others in the department that
union activism would hamper one's chances of advancing within the
department.
In summary, the promotional process occurred at a point in
time when labor-management relations were not running smoothly
and there was a high level of union animus. The three strong
union supporters in this bargaining unit received blatantly low
evaluation scores from Chief Malone. The MAP complainants have
met their burden of proving by a preponderance of the evidence
-33-
that there is a causal connection between their union activism
and their low chief's evaluation scores.
Burden of Proof Shifts to the Town of Houlton
The MAP Complainants having met their burden of proof, our
analysis now turns to the Town's evidence, as more fully
explained in the following sections, that Chief Malone's
evaluation scores were based on unprotected activity as well, and
that the same scores would have been given by Chief Malone
regardless of the Complainants' union activism.
Chief Malone's attempts to justify these skewed evaluation
scores were weak and, at times, simply not credible. We there-
fore conclude that the Town has failed to meet its burden of
proving by a preponderance of the evidence that the disparity in
the Chief's evaluation scores was based on factors unrelated to
union activism. MSEA v. State Development Office, 499 A.2d at
169.
Edward Archer's Candidacy for Staff Sergeant Detective
The union contract and the chief's evaluation format require
the Chief to evaluate a candidate's past performance and work
habits as well as overall promotional potential. Edward Archer
should have received a higher rating from Chief Malone based on
his job performance and on his potential for success as a
detective.
The statistics presented in pie charts,21 letters written by
_____________________
21 The Town's attempt to minimize the significance of these
statistics is unconvincing. We find this objective evidence to be
highly relevant to the question of an officer's past performance.
The Chief apparently considers these numbers significant; he testified
that he "took stats" to weekly staff meetings and believes these
statistics show "results and they show quality," possibly even
leadership qualities. Staff Sgt. Pelletier testified that statistics
are a good indicator of job performance.
-34-
attorneys from the DA's office and the Chief, and testimony at
hearing from other officers, establish Sgt. Archer's past
performance was consistently good. As far as Sgt. Archer's
potential to perform detective duties, the evidence reveals he is
well able to perform these duties. His selection as one of two
detectives to work with the DA's office, the letter written by
the Assistant District Attorney about his skills as a detective,
and his second-place showing for the position with the Attorney
General's office, show that Sgt. Archer had proven potential for
success as a staff sergeant detective.
Chief Malone agrees that Sgt. Archer was doing a good job,
that his volume of work was fairly high, that he "was very
capable of handling investigations," and that he is a hard-
working man with integrity. The primary rationale articulated by
the Chief for Sgt. Archer's distorted score was that Archer
lacked follow-through on investigations. The Chief failed to
present documentary evidence that this was the case, and this
lack of evidence discredits the Chief's weak assertions. This is
especially so in light of the Assistant District Attorney's
opinion that Archer's follow-up reports had always been thorough
and concise. The Assistant District Attorney was in a good
position to observe Archer's work firsthand as a litigator of
cases developed by police officers in that county.
Another reason advanced by the Chief for Archer's extremely
low score was that citizens complained directly to the town
manager about Archer's investigations. We would have considered
this a valid concern if there had been frequent or serious
complaints about his performance. However, as it turned out, the
Chief could only substantiate one such complaint about Archer
prior to his evaluation, and the town manager's and Chief's
concern about the complaint at the time was not serious. Chief
Malone's testimony around the issue of citizens' complaints
having anything to do with Archer's low score was not credible.
Chief Malone gave Sgt. Archer an 11 out of 20 on the
-35-
evaluation scale, which is at the low end of "acceptable" and
well below "good." On the other hand, Officer "A" had low
productivity according to the pie charts and no substantial
detective experience, yet the Chief rated him "very good," 6.5
points higher than Sgt. Archer.22 The successful candidate,
Officer "C", was closest to Sgt. Archer in terms of prior
experience, but his productivity was not as high as Archer's.
Nevertheless, the Chief gave him a perfect score of 20. Officer
"A" and Officer "C" were not considered active union members and,
in fact, Officer "A" reported "back room talk" to the Chief, and
Officer "C" refused to file grievances regarding obvious
violations of the collective bargaining agreement. This
information about these candidates and their comparative scores
goes a long way in explaining the Chief's purposeful skewing of
Sgt. Archer's scores.
We have no trouble concluding that Sgt. Archer was at the
high end of "acceptable," if not well within the range of "good,"
as a candidate for staff sergeant detective. Either rating by
the Chief would have given Sgt. Archer the highest overall score
and resulted in his promotion to the position of staff sergeant
detective. This is true even if we were to accept as fair the
perfect score of 20 given to Officer "C". Whether or not Chief
Malone knew the other component scores at the time he completed
his evaluations, the Chief knew that rating Sgt. Archer at the
low end of acceptable and Officer "C" as perfect was all he could
do to avoid promoting Sgt. Archer.
The Town, in fact, argues that there is nothing wrong with
the Chief's wanting these promotions to turn out in a certain way
and doing all he could to influence the results. We agree that
if the Chief wished to avoid promoting Sgt. Archer for reasons
_____________________
22 Officer "A" may have had minimal detective experience during the
period of time when the Chief was permitting officers to rotate
detective duties in anticipation of this new position. There was no
evidence presented concerning Officer "A's" specific performance as a
detective or his potential for this position.
-36-
other than his union activism, the purposeful skewing of his
evaluation score would be of no import to us.23 The
Complainants, however, have met their burden of proving a causal
connection between their union activity and artificially low
scores. The Town had the burden of proving that the scores would
have been given regardless of union activism. The Chief's
rationale for Archer's low score simply does not persuade us that
this is the case.
John Hyman's and Troy O'Bar's Chief's Evaluation Scores
Chief Malone's evaluation scores for Officer Hyman and
Officer O'Bar were significantly lower than the scores of other
candidates for the corporal/patrol sergeant positions. We have
already discussed our conclusion that there was a causal
connection between these scores and the Complainants' union
activism. We further conclude that the Town has not met its
burden of proving that this gap in scores was based on factors
unrelated to Hyman's and O'Bar's union activism.
We note at the outset that Hyman's and O'Bar's scores were
not as low as Sgt. Archer's was, nor was the gap between scores
in that race quite as wide. Chief Malone rated Hyman at 14.5,
which is "good," and O'Bar at 12, which is "acceptable."
Standing alone, in the face of some performance concerns which
neither officer challenged, these scores are not necessarily
suspect.
We are troubled, however, by the disparity in scores. Chief
Malone rated three of the seven candidates as almost perfect
(19.5), and the other two candidates as "very good" (18.0). Once
again, the officer who refused to file grievances and rejoined
the union only after he was promoted (Officer "C") and the
_____________________
23 The union contract, however, does require the Town to base its
promotional decisions on specific criteria; therefore, the Chief does
not have unfettered discretion to favor certain candidates over others
as the Town argues to this Board.
-37-
officer who reported back to Chief Malone about the union's
activities and discussions in the "back room" (Officer "A")
received very high marks from the Chief. While they may have
deserved higher ratings than Hyman and O'Bar based on their
performance and potential to supervise other officers, the Chief
never adequately justified the wide divergence in scores.
There were some concerns raised by the Chief concerning
Hyman's and O'Bar's performance which the officers did not
dispute at the time or at hearing; however, we conclude that
these concerns did not fully justify the disparity in scores.
These issues had never been raised with Hyman and O'Bar prior to
the promotions, so we question the extent to which they affected
the Chief's scores. Likewise, we do not know why Officer "D" was
considered "very good," and O'Bar only "acceptable."24
In the circumstances, the burden of proving that the gap in
these scores was based on legitimate reasons other than degree of
union activism rested with the Town, and we are not convinced by
the evidence that the disparity in the Chief's evaluation scores
was based on anything else.
This is not to say that we conclude, as we did in the case
of Sgt. Archer, that Hyman and O'Bar should have been promoted.
To do so would require much speculation on our part. We cannot
presume to know with certainty how these evaluation scores would
have turned out had they been given without regard to degree of
union activism. In Archer's case, we could say without
hesitation that his score should have been at least high end
"acceptable," if not "good," and that score would have resulted
in his promotion even if Officer "C's" perfect score from the
Chief remained untouched.
We would have to lower the scores of the successful
_____________________
24 Officer "D" had been with the department for many years;
however, seniority is factored into the promotional process separate
from the Chief's evaluation.
-38-
candidates and give Hyman and O'Bar specific higher scores to
find that their promotions were warranted. We cannot even find,
based on the evidence presented, whether O'Bar should have
received the same score as Hyman, or a higher score. We can only
find that Hyman and O'Bar received unfairly low evaluation scores
based on their union activism.
REMEDIES
Title 26 M.R.S.A. 968(5)(6) provides that the Board, upon
a finding that a party committed a prohibited practice, shall
issue an order requiring that party to cease and desist from such
prohibited practice and to take such affirmative action as will
effectuate the Act.
We have concluded that Chief Darrell Malone and Town Manager
Allan Bean engaged in prohibited practices in violation of
sections 964(1)(A) and (B) by skewing evaluation scores in a
promotional process to defeat the chances of union activists, and
by making certain comments which would restrain union activity.
Accordingly, we will order Respondents to cease and desist from
discriminating against employees based on union activity, and to
cease and desist from restraining union activities in the manner
evidenced in this case.
This cease and desist order does not adequately rectify the
violations of law which occurred at the Houlton Police
Department. We believe that affirmative action must be taken by
the Respondents as well to effectuate the policies of the Act.
Accordingly, we will order Respondents to post the attached
"Notice" in a conspicuous place in the police department, after
being signed and dated by Allan Bean, Town Manager, and Darrell
Malone, Chief of Police. In addition, we will order that Edward
Archer be paid the difference in salary between that which he
earned as sergeant and that which he would have earned had he
been promoted to staff sergeant detective in November, 1996.
This difference in pay should be computed up to the day Archer
-39-
left the Houlton Police Department in February, 1997, and payment
shall include interest in accordance with our decision in
Holmes v. Old Orchard Beach, No. 82-14, slip op. at 14 (Me.L.R.B.
September 27, 1982).
We have concluded that Chief Malone's skewing of evaluation
scores was purposeful and blatant. The Chief's evaluation scores
were posted in the police department; all of the employees in
this bargaining unit could see the artificially low scores given
to these union activists and understood the implication. In
addition to the chilling effect this posting of the scores would
tend to have on protected activities, there was immediate and
definite harm to the morale of these officers and injury to their
dignity. Hyman and O'Bar may have even lost promotions as a
result of the skewed evaluation scores. In light of these
factors, we gave serious consideration to Complainants' request
for attorneys' fees, but have concluded that a judicious remedy
in this case would be to allocate MAP's portion of the Board's
costs (itemized in a bill from the Executive Director) to the
Town of Houlton, pursuant to Section 968(1).
-40-
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), it is hereby ORDERED that:
I. Respondent Town of Houlton and its representatives and
agents, including Chief Darrell Malone and Town Manager
Allan Bean, shall:
A. Cease and desist from:
1. interfering with, restraining or coercing
employees in the Houlton Police Department
in their exercise of rights guaranteed by
the Municipal Public Employees Labor
Relations Law;
2. failing to promote or otherwise discriminating
against employees in the Houlton Police
Department because of their union activism.
B. Take the following affirmative action necessary to
effectuate the policies of the Act:
1. pay to Edward Archer the back pay and interest
described in the "Remedies" section of this
decision;
2. post in the Houlton Police Department a copy
of the attached "Notice," and maintain the
posting in a conspicuous place for thirty (30)
consecutive days;
3. notify the Executive Director of the Maine
Labor Relations Board, in writing, within
twenty (20) days from the date of this Order
what steps have been taken to comply with this
Order.
C. Pay to the Maine Labor Relations Board the Maine
Association of Police's portion of the Board's
costs in conducting this hearing, as itemized in
a bill from the Executive Director.
D. If the parties have not agreed on the amount of
back pay due to Edward Archer within thirty (30)
days after the date of this Order, MAP may file
with the Executive Director and serve on the Town
of Houlton sufficient documentation to substantiate
-41-
its claim. The Town of Houlton will have fifteen
(15) days from such filing to respond with evidence
bearing on the disputed amount. The Board will
thereafter issue a supplemental Order or conduct
such further proceedings as are necessary to
supplement this Order.
II. The complaint filed by Dana Duff against the Town of
Houlton, Town of Houlton Police Department and Chief
Darrell Malone is hereby dismissed.
Dated at Augusta, Maine, this 19th day of October, 1999.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. 968(5)(F) (Supp.
1998) to seek a review of this
decision and order by the /s/___________________________
Superior Court. To initiate Pamela D. Chute
such a review, an appealing 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 Carol B. Gilmore
comply with the requirements Employee Representative
of Rule 80(C) of the Rules of
Civil Procedure.
/s/___________________________
Edwin S. Hamm
Employer Representative
-42-
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
NOTICE
___________________________________________________________________
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 LAW
we hereby notify all personnel that:
(1) WE WILL NOT deny promotions or otherwise discriminate
against employees of the Houlton Police Department because
of their interest in or activity on behalf of the Houlton
Patrolman/Dispatcher and Command Unit - Maine Association
of Police.
(2) WE WILL NOT in any other manner interfere with, restrain or
coerce employees of the Houlton Police Department in the
exercise of their rights to engage in union activities.
(3) WE WILL make Edward Archer whole for any loss of earnings he
incurred when he was not promoted to the staff sergeant
detective position in November, 1996, through February,
1997, when he resigned from the Department.
(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 HOULTON
Dated _____________________ By _________________________________
Allan K. Bean, Town Manager
Dated _____________________ By __________________________________
Darrell L. Malone, Chief of Police
_______________________________________________________
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 with the
Executive Director of the Maine Labor Relations Board, 90 State
House Station, Augusta, Maine 04333-0090, Telephone 287-2015.