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Sanford Highway Unit, AFSCME v. Town of Sanford, Sanford v. MLRB, etc. Superior 
Court CV-79-171 affirming case No. 79-50, aff'd by Law Court 411 A.2d 1010. STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NOS. CV 79-171 79-172 79-278 79-186 (Consolidated) SANFORD HIGHWAY UNIT of Local ) 481, Council No. 74, American ) Federation of State, County ) and Municipal Employees, ) AFL-CIO ) Plaintiff ) ) v. ) ) TOWN OF SANFORD, et al. ) Defendant ) ________________________________) ) INHABITANTS OF THE ) MUNICIPALITY OF SANFORD, et al.,) Plaintiffs ) ) v. ) ) MAINE LABOR RELATIONS BOARD, ) et al., ) Defendant ) ________________________________) DECISION ) AND SANFORD HIGHWAY EMPLOYEES, ) ORDER Local 481, Council No. 74, ) American Federation of State, ) County and Municipal Employees, ) AFL-CIO, ) Plaintiffs, ) ) v. ) ) TOWN OF SANFORD, et al., ) Defendants ) ________________________________) ) SANFORD HIGHWAY UNIT, of Local ) 481, et al, ) Plaintiff ) ) v. ) ) TOWN OF SANFORD AND SANFORD ) SELECTMEN AND TOWN NEGOTIATOR, ) et al, ) Defendants ) ________________________________) ________________________________________________________________________________ -2- This case involves four separate civil actions which have been consolidated: CV 79-278, an action by the Sanford High- way Employees, Local 481 Council 74 American Federation of State and County Municipal Employees AFL-CIO, and the Maine Labor Relations Board (hereinafter, the Union, and the Board) against the Town of Sanford and various officers of that Town (hereinafter, the Town), seekinq enforcement of an order entered by the Board on April 9, 1979. CV 79-171, a Petition for Review of the findings of an order of the Board filed by the Town pursuant to the Maine Administrative Procedure Act. CV 79-172, a complaint filed by the Town pursuant to Rule 80B of the Maine Rules of Civil Procedure seeking judicial review of the Board's action. CV 79-186, a complaint filed pursuant to Rule 80B by the Union seeking judicial review of other findings of the Board. A procedural issue of some difficulty is presented by these various actions, namely, whether the procedure set forth in 26 M.R.S.A. 968(5)(F) or the procedure set forth in the Administrative Procedure Act, 5 M.R.S.A. 8001 et seq., govern this appeal. The Town contends, based on the language of the APA and the fact that the APA was effective after the last amendment to 968(5)(F), that the only viable appeal from the Decision and Order of the Board is the Town's petition for review. The Union contends that its appeal is sufficient under either statute, and the Board, acknowledg- ing the apparent inconsistency between 968(5)(F) and the appeals section of the APA, 5 M.R.S.A. 11001 et seq., ________________________________________________________________________________ -3- suggests the Court hold that the appeal is governed by the APA except that 968(5)(D), the temporary compliance section of the Labor Law, be held not inconsistent, and thus fully effective despite the enactment of the APA. The statutory sections which have at least arguable impact on the issue of whether the APA or the Labor Statutes define the procedures for judicial review are: 5 M.R.S.A. 11OO1(1) 1. Agency action. Except where a statute pro- vides a direct review or review of the pro forma judicial decree by the Supreme Judicial Court or where judicial review is specifically precluded or the issues therein are limited by statute, any person who is aggrieved by final agency action shall be entitled to judicial review thereof in the Superior Court in the manner provided by this sub-chapter. Prelimin- ary, procedural, intermediate or other non- final agency action shall be independently re- viewable only if review of the final agency action would not provide an adequate remedy. 5 M.R.S.A. 8003 INCONSISTENT PROVISIONS "Except where expressly authorized by statute, any statutory provision now existing or hereafter adopted which is inconsistent with the Maine Administrative Procedure Act shall yield in the applicable provisions of this Act shall govern in its stead." 26 M.R.S.A. 7: "Appeals. Any order by a board created and established under this Title, or any rule, regu- lation, determination or declaration formulated by the board or by the Director of the Bureau of Labor shall be subject to review by the Superior Court, pursuant to Title 5, section 8058 or section 11001 et seq." 26 M.R.S.A. 968(5)(F): "Either party may seek a review by the Superior Court . . . of a decision of the Maine Labor Relations Board by filing a complaint in accord- _______________________________________________________________________________ -4- ance with the Rules of Civil Procedure, Rule 80B, provided the complaint shall be filed with- in 15 days of the effective date of the decision. . . . . [F]indings of the board on questions of fact shall be final unless shown to be clearly erroneous. Any appeal to the law court shall be the same as an appeal from an interlocutory order under section 6." (Section 6 provides an accelerated appeal procedure.) The decision in this case on this issue would effect not only Section 968(5)(F) of the Municipal Public Employees Labor Relations Act, but also the essentially identical provisions of the State Employees Labor Relations Act, 26 M.R.S.A. 979-H(7), and the University of Maine Labor Relations Act, 26 M.R.S.A. 1029(7). The evident purpose of the Maine Administrative Procedure Act is to provide a uniform, systematic mode of public notice and judicial review of acts of state administrative agencies. While in most cases the manner of effectuating review will have only tangential impact on the purposes of any statute creating an administrative agency, this is manifestly not the case under the labor statutes. Timely resolution of labor controversies, and efficacious enforcement procedures are vital to the maintenance of stability in public employee labor relations, and are especially important where, as under the Maine statute, self-help remedies for the parties are very limited or prohibited. Thus, if the Maine APA supersedes the enforcement and appeals provisions of the Maine labor statutes, this constitutes a major shift in the state's public employee labor relations policy. ________________________________________________________________________________ -5- There are two basic procedures for appeals of orders entered by the Maine Labor Relations Board. The history of the development of these two modes of appeal warrants the inference that the Legislature did not intend that the Administrative Procedure Act would supersede the provisions of the Maine Labor Relations Acts. The first involves pro- hibited practices complaints. 26 M.R.S.A. 968(5)(F). Following a determination that a prohibited practice has occurred by the Board, either party may seek review in the Superior Court by filing a complaint pursuant to Rule 8OB within 15 days of the effective date of the decision. The Superior Court is directed to cause notice of the complaint to be given at the earliest possible time, and the complaint is capable of being heard any time seven days after such notice is given. The findings of fact of the Board are final unless shown to be clearly erroneous. Appeals to the Law Court are governed by 26 M.R.S.A. 6, which provides, "Any such appeals shall be heard at the first term of the Law Court commencing not less than 14 days after the appel- lant has filed the record on appeal with the Clerk of the Superior Court and has furnished the required copies of his brief to the Clerk of the Law Court . . . . The Law Court shall affirm or set aside the order with the greatest poss- ible expedition and shall give such proceedings precedence over all other matters, except older matters of the same character." ________________________________________________________________________________ -6- The second appeals procedure governs review of arbitration awards, unit determinations, and representation proceedings. 26 M.R.S.A. 968(4) and 972. In these proceedings, the findings of fact are final in the absence of fraud, and the court is empowered to affirm, reverse or modify any determi- nation or decision based upon an erroneous ruling or finding of law. Appeal to the Law Court from the Superior Court in such a proceeding is as in any civil action. One of the express exceptions to the Administrative Procedure Act set forth in 11001, exempts agency review from the provisions of the Act where the issues are limited by statute. Limiting the court to the issue of fraud in the case of arbitration awards and unit determinations would clearly appear to be such a limitation, and thus these adjudications by the Maine Labor Relations Board would ap- pear to be exempt from the Act. In the case of prohibited practices, however, the statutory standard is "clearly erroneous," which is an expansion, rather than a limitation, of the court's authority to review decisions rendered by the agency. The standard of review set forth in the Administra- tive Procedure Act, 11007(4)(C)(5), "Substantial evidence on the whole record," precludes the court from reviewing factual controversies in the same manner the court is pre- cluded from reviewing findings of a jury. The "clearly erroneous" standard, on the other hand, permits the court to ________________________________________________________________________________ -7- review findings of fact on appeal in the same manner that the court reviews findings by a judge sitting without a jury. 4 DAVIS, ADMINISTRATIVE LAW, 29.02 (1958 and supplements thereto). Compare, 1 FIELD, MCKUSICK AND WROTH, MAINE CIVIL PRACTICE 50.4 with 52.7. Thus, in the case of appeals from the Maine Labor Relations Board in the matter of prohibitive practices, the issues before the Superior Court cannot be said to be limited by the statute. In fact, the jurisdiction of the court is somewhat expanded, allowing for more extensive review of factual controversies as they were litigated before the Board. To construe the statute using the literal meaning of the word "limited," it would appear that 968(5)(F) is not exempt from the operation of the APA, since that section serves to expand, rather than limit, the power of the court. To so construe the statute would result in portions of the Labor Relations Act, specifically unit determination and arbitration proceedings, being governed by the labor statute appellate procedure, while prohibited practices orders would be subject to judicial review through the Administrative Procedure Act. Such a construction would not seem consistent with the Law Court's recent observation that the Municipal Employees Labor Relations Act is a "comprehensive, self- contained" statutory scheme. School Committee of Town of Easton v. Easton Teacher's Association, 398 A.2d 1220 (Me., 1979). ________________________________________________________________________________ -8- Some light is cast upon the appropriate interpretation of these conflicting appeals provisions by a review of legis- lative history. Judicial enforcement of violations of the labor act and review of labor board adjudications have always been classified into the two types alluded to above. As originally enacted, 26 M.R.S.A. 964(3) (P.L. 1969, ch. 424) provided for a civil action in the Superior Court to enjoin prohibited practices, subject to 26 M.R.S.A. 5 and 6. 26 M.R.S.A. 965(4) (P.L. 1969, ch. 424) provided for review of arbitration proceedings in the Superior Court pursuant to 26 M.R.S.A. 7. 26 M.R.S.A. 968 (P.L. 1969, ch. 424) limited appeal of unit determinations and elections to the Labor Relations Appeals Board only, with no judicial review. P.L. 1969, ch. 578, sec. 7 enacted 26 M.R.S.A. 972. The same chapter of the Public Laws amended 26 M.R.S.A. 965(4) to provide review of arbitration proceedings pursuant to 972. (P.L. 1969, ch. 578, secs. 2-A and 2-B.) Review of unit determinations and elections was also changed. The language limiting appeal to the Labor Board only was repealed. P.L. 1969, ch. 578, sec. 5-A. 26 M.R.S.A. 968(1) was further amended to provide for review of Labor Board unit determinations and elections in the Superior Court pursuant to 972. This latter section provided that decisions of arbitration panels or the Labor Board on questions of fact were final in the absence of fraud. While there have been ________________________________________________________________________________ -9- subsequent technical changes, this remains the scheme for judicial review of arbitration proceedings, unit determinations, and bargaining representative selection. By P.L. 1971, ch. 609, sec. 9 the practice of prosecut- ing prohibited practice complaints directly in the Superior Court was altered, and 968(5)(F) was enacted. As originally enacted, this section called for the entry of a pro forma decree by the Superior Court, with appeals to the Law Court only lying on questions of law. P.L. 1973, ch. 533, sec. 2 repealed and replaced 968(5) (F). The new section provided for Superior Court review of Labor Board decisions on prohibited practice complaints and established a "clearly erroneous" standard for review of factual findings. With technical changes, this procedure remains in effect unless superceded by the APA. The APA was enacted by P.L. 1977, ch. 551, sec. 3. The 2nd Regular Session of the 108th Legislature passed "An Act to Conform State Statutes to the Maine Administrative Pro- cedure Act, P.L. 1977, ch. 694. 8003, quoted above was enacted as a part of this Act, P.L. 1977, ch. 694 sec. 32; 5 M.R.S.A. 11001(1) was amended, P.L. 1977, ch. 694, sec. 40; and 26 M.R.S.A. 7 was replaced, P.L. 1977, ch. 694, sec. 440. This comprehensive revision of the Maine Statutes consisting of 763 separate sections did not make any revisions in the Municipal Public Employees Labor Relations Law, 26 ________________________________________________________________________________ -10- M.R.S.A. 961-972, the State Employees Labor Relations Act, 26 M.R.S.A. 979-979-M, or the University of Maine Labor Relations Act, 26 M.R.S.A. 1021-1034. The provisions for judicial review of Labor Board decisions contained in each of those acts remained unchanged. Indeed, subsequent to the enactment of the APA and subsequent to the comprehensive revision of the statutes, the Legislature made a technical amendment to the University Act, 1029(7) to specifically refer to judicial review pursuant to Rule 8OB. P.L. 1979, ch. 541, sec. 173. Such amendment would have been unnecessary had the judicial review provisions been superceded by the A.P.A. It appears that as a result of all this legislative activity ambiguity has been created. The general provisions of the APA together with the 1977 replacement of 26 M.R.S.A. 7 suggest that the provisions of the labor acts relating to judicial review of labor board prohibited practice orders have been superceded by the APA. Yet, the failure to amend the labor acts in the comprehensive statutory revision of P.L. 1977, ch. 694 and the specific reference to Rule 80B in the University Act amendment of 1979 suggests that the Legislature did not intend the APA to apply to judicial review of prohibited practice complaints. The subject of public employee labor relations has been in the forefront of legislative concern for the last ________________________________________________________________________________ -11- decade. It is a subject which is of the utmost significance to public employees, public employers and the tax paying public. The issues involved are complex involving difficult policy choices. Our Legislature has over the years necessarily devoted a good deal of its time to this subject. It has enacted a comprehensive integrated set of statutes to carry out public policy in the field of governmental employee relations. This court cannot believe the Legislature intended to repeal the judicial review provisions of the Labor Acts by implication or inference from generalized language. Nor can it believe that when revising all of the statutes to bring them into conformity with the APA the Legislature merely overlooked the Labor Acts. The only conclusion which this court can draw, is that having developed comprehensive legislation to deal with the complex issues of public employee labor relations, the Legislature did not intend the APA to intrude upon that area. It follows that these proceed- ings are governed by 26 M.R.S.A. 968(5)(F). Turning to the merits of the dispute, it is the Town's basic contention that the record does not support the findings of fact made by the Board. The standard of review which this Court is to use in reviewing the Board's findings of fact is dictated by 968(5)(F) which provides in pertinent part: "[T]he findings of the Board on questions of fact shall be final unless shown to be clearly erroneous." For a discussion of the meaning of the "clearly erroneous test" see the Reporter's ________________________________________________________________________________ -12- Notes to Maine Rule of Civil Procedure 52 and 1 FIELD, McKUSICK AND WROTH, MAINE CIVIL PRACTICE 52.7. This Court has carefully reviewed the extensive record of the proceedings before the Maine Labor Relations Board in this case. It has also carefully reviewed the detailed find- ings made by the Board. After such review this Court is satisfied that the Board's findings are not clearly erroneous. It is unneccessary to here recite or even summarize the exten- sive record and the detailed findings of the Board. It is sufficient to note that the Board's findings are fully support- ed by the evidence. It is the further contention of the Town that the Board's order is unlawful to the extent that it directed reinstatement of employees who had been discharged for engaging in an illegal work stoppage. The nature of the order to be issued by the Board is defined by 968 (5)(C). That section states that if the Board is of the opinion that a party has committed or is committing any prohibited practice the Board shall render a written decision stating its findings and conclusion and: "Shall issue and cause to be served upon such party an order requiring such party to cease and desist from such prohibited practice and to take such affirmative action, including rein- statement of employees with or without back pay, as will effectuate the policies of this chapter. No order of the Board shall require the reinstatement of any individual as an em- ployee who has been suspended or discharged, or the payment ________________________________________________________________________________ -13- to him on any back pay, if such individual was suspended or discharged for cause." This section of our statutes was recently carefully analyzed in an opinion for the Law Court written by Chief Justice McKusick. Caribou School Department v. Caribou Teachers' Association 402 A.2d 1279, 1284-1285 (Me. 1979). In that decision the Court noted that the Maine statute follows the pattern set by the National Labor Relations Act and that therefore the Legislature must have intended the Labor Board to have the same powers conferred on the National Labor Relations Board by the Federal statute. Noting that the purpose of Board orders is remedial and not punitive the Court relying upon Phelps Dodge Corp. v. N.L.R.B. 313 U.S. 177 (1941) stated: "A properly designed remedial order seeks 'a restoration of the situation as nearly as possible, to that which would have obtained' but for the unfair labor practice." Caribou School Department v. Caribou Teachers' Association, supra at 1284. It is the contention of the Town that the Board was without power to order reinstatement of these employees be- cause they had been discharged for cause the cause being engaging in a work stoppage in violation of 964(2)(C). There is no question that the employees engaged in an illegal work stoppage or strike in violation of the Act. The Board so held. (See Board's Decision and Order page 7.) The Board concluded that the illegal job action had been provoked by the employers' prohibited practices, and that while this did not convert the illegal job action into legal conduct, in the exercise ________________________________________________________________________________ -14- of the Board's remedial power to restore the status quo the employees should be reinstated. The Town's argument that the illegal action constitutes cause for discharge which the Board may not disregard in its remedial order because the job action is prohibited by sta- tute misconceives the entire statutory framework established by our Legislature. 26 M.R.S.A. 964 defines certain acts as prohibited practices. The practices in which public employ- ers may not engage are defined and enumerated in subsection 1 of 964. The practices in which public employees and public employee organizations are prohibited from engaging in are defined in subsection 2 of 964. Subsection 3 provides that violations will be processed by the Board in accordance with the statutory procedures. When an employer engages in a prohibited practice such as a failure to bargain, the employees may not engage in self help by using economic sanctions against the employer. By the same token, when the employees engage in a prohibited practice the employer may not engage in self help by imposing economic sanctions. Thus the Legislature has established a system of corelative rights and duties and has provided a system of enforcement whereby the Board will provide remedies for a breach of duty or an infringe- ment of a right. The statutory scheme does not contemplate self help. It is unnecessary for this Court to decide whether an illegal work stoppage ever constitutes cause for discharge. In the context of this case the Board has merely decided that because the illegal work stoppage had been provokod by illegal ________________________________________________________________________________ -15- conduct of the employer the appropriate remedy is reinstate- ment in order to restore the status quo. The Board's remedial action is supported by the reasoning of the Supreme Court of Michigan in Rockwell v. Board of Educa- tion of Crestwood, 227 NW2d 736 (Michigan 1975). At page 746 of that opinion the Michigan Supreme Court noted: "If MERC (Michigan Employment Relations Commission) should determine that the employing school district committed an unfair labor practice, MERC may despite the illegality of the teachers' strike order reinstatement." (Emphasis in original) . The Michigan Court on the same page quoted at length from Local 833 v. NLRB 300 F.2d 699, 702-703 (1962) as follows: "To hold that employee 'misconduct' automatically precludes compulsory reinstatement ignores two considerations which we think important. First, the employer's antecedent unfair labor practices may have been so blatent that they provoked employees to resort to unprotected action. Second, rein- statement is the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union. This language is most applicable in the instant case. Among the numerous contentions of the Union one may be dealt with summarily The Union contends that the Board was in error in failing to strike the testimony of one of the Selectmen because he invoked his 5th amendment privileges against self incrimination or in the alternative that the ________________________________________________________________________________ -16- Board should have drawn an adverse inference from his exercise of the privilege. Without suggesting that the Board's action constituted error, if it did it was harmless. The Union also contends that the Board was in error in not finding certain additional conduct of the Town to constitute prohibited practices. It is the theory of the Union that had the Board found such additional prohibited practices the employ- ees would have been entitled to reinstatement with back pay. The fallacy in this reasoning is that even had the Board found these additional prohibited practices the Board would not have been justified in awarding the employees back pay because of their illegal strike. The Board's finding which may be characterized as a finding of persistent and pervasive refusal to bargain in good faith justifies the broad Cease and Desist Order directing the Town to cease and desist "from refusing to bargain in good faith as is required by 26 M.R.S.A. 965." For example see: NLRB v. Express Publishing Co., 312 U.S. 426, 438 (1941). Under such circumstances the broad order issued by the Board is enforceable by this Court. 26 M.R.S.A. 968(5) (D). It is hereby ordered, adjudged and decreed as follows: 1. In Docket No. CV 79-171 the Plaintiff's complaint is dismissed for lack of jurisdiction since orders of the Maine Labor Relations Board are not reviewable pursuant to the provisions of the Administrative Procedure Act. ________________________________________________________________________________ -17- 2. In Docket No. CV 79-172 the Order of the Maine Labor Relations Board issued April 5, 1979 in that certain pro- ceeding entitled Sanford Highway Unit of Local 481, etc. v. Town of Sanford et al, Maine Labor Relations Board case no. 79-50 is affirmed and each of the parties is ordered forthwith to comply fully with all the terms of said Order. 3. In Docket No. CV 79-186 the above-described Order of the Maine Labor Relations Board is affirmed and the appli- cation for reinstatement with back pay is denied. 4. In Docket No. CV 79-278 the Town of Sanford, the Town of Sanford Selectmen, and the Town of Sanford Chief Negotiator and their agents are ordered forthwith to comply fully with the Order of the Maine Labor Relations Board issued April 5, 1979 in that certain proceeding entitled Sanford Highway Unit of Local 481, etc. v. Town of Sanford et al, Maine Labor Relations Board case no. 79-50. August 30, 1979 /s/__________________________________ [Harry P. Glassman] Justice, Superior Court
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