Teamsters v. Town of Kennebunk and MLRB, CV-80-413, affirming Teamsters v. Town of Kennebunk and Lt. Michael LeBlanc, No. 80-30. STATE OF MAINE SUPERIOR COURT KENNEBEC, SS CIVIL ACTION Docket No. CV8O-413 TEAMSTERS LOCAL UNION NO. 48, ) ) Plaintiff ) ) v. ) ) TOWN OF KENNEBUNK ) DECISION ) and ) ) MAINE LABOR RELATIONS BOARD, ) ) Defendants ) This is an appeal brought pursuant to 26 M.R.S.A. 968(F) and Rule 8OB, Me.R.Civ.P. Plaintiff seeks review of the Maine Labor Relations Board (hereinafter "the Board") decision in case no. 80-30. The Union's complaint before the Board arose out of the discharge of Patrolman Wayne Doherty of the Kennebunk police force. The Board concluded that the Town committed no prohibited practice in discharging Doherty, since the decision was in no way motivated by anti-union animus. Plaintiff presents the following issues in his appeal: 1. Did the Board improperly place the burden of proof upon the plaintiff? 2. Did the Board err in refusing to require the employer to show "just cause" for Doherty's discharge? -1- ______________________________________________________________________________ 3. Did the Board abuse its discretion by failing to infer anti-union animus from the fact that several of the asserted motives for dismissal were based on vague rules? 4. Did the Board abuse its discretion by not drawing an adverse inference from the absence of testimony from the Town Manager? 5. Was the Board's finding supported by substantial evidence on the record as a whole? This Court finds against the plaintiff on these issues and affirms the Board's decision. BURDEN OF PROOF Title 26 M.R.S.A. 968(5)(C) requires proof of a prohibited practice by a preponderance of evidence. This places the burden of proof upon the proponent, the union in this case. In discrimination cases, however, the federal courts shift the burden of proof to the defendant when the plaintiff has made out a prima facie case of discrimination. The employer then has the burden of showing that his employment decision was based on a legitimate consideration. If he does this, the burden shifts back to the plaintiff to show that the profferred reason is a pretext.[fn]1 The Law Court has repeatedly stated that federal interpretations of the National Labor Relations Act are _______________ 1 E.g. NLRB v. Great Dane Trailers, 333 U.S. 26 (1967). -2- ______________________________________________________________________________ persuasive when construing similar portions of the Maine Act.[fn]2 The difficulty of proving motive in discrimination cases and the similarity of the prohibited practice sections of the Maine Act to the relevant portions of the N.L.R.A. lead this Court to agree with the shifting burden of proof standard. This Court agrees that a prima facie case of discrimination was made before the Board. However, a legitimate reason for discharge of patrolman Doherty was found by the Board in this case, and was substantiated, to a large degree, from Doherty's own testimony.[fn]3 Under these circumstances, the burden was properly placed upon plaintiff to show anti-union animus, by demonstrating that the asserted reason for discharge was mere pretext. "JUST" CAUSE Plaintiff objects to the Board's refusal to apply a "just cause" standard in evaluating the discharge of patrolman Doherty. This Court agrees with the Board that such a standard is irrelevant to this discriminatory discharge case. Ordinarily, employers are free to discharge _______________ 2 See, Caribou Board of Education v. Caribou Teacher's Association, 402 A.2d 1279, 1284 (Me. 1979). 3 See, M.L.R.B. slip opinion (sl. op.) at page 8. "We conclude that Doherty unquestionably had ulterior motives in his approach to the student. More importantly, he misrepresented his motives to Lt. LeBlanc during the investigation of the incident." Note that the day after the complaint from the girl's father, Doherty asked her father if he could see her. (transcript at 62). -3- ______________________________________________________________________________ their employees for any reason, so long as anti-union animus in no way contributes to the decision.[fn]4 See, N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939). Accordingly, there is no error in the Board's refusal to utilize a "just cause" standard. FAILURE TO DRAW INFERENCES The Union asserts that the Board abused its discretion by refusing to infer anti-union animus from the fact that several of the reasons for discharge cited in the discharge letter proved to be based on vague rules. Drawing inferences from the evidence presented is for the trier of fact. Where an inference is supported by substantial evidence, or where the evidence conflicts and no inference is drawn, the decision of the Board is final. There is substantial evidence in the record to support the finding that Doherty was discharged for reasons other than anti-union animus. Accordingly, I find no error in failing to draw the inference. _______________ 4 See, transcript at 242, lines 22-23 and 244, lines 2-6; the union's representative seemed to suggest that unless the discharge was "just," the employer was motivated by anti-union animus. If a discharge occurs solely because a superior dislikes an employee's haircut, the discharge is not a prohibited practice. Furthermore, it is possible that a discharge could be "unjust" (by being overly harsh) but still serve a valid business purpose. 5 See, sl. op. at 5, finding of fact no. 22. -4- ______________________________________________________________________________ The union also claims error in the failure to draw an adverse inference from the absence of testimony from the Town Manager. International Union of Auto Workers (UAW) v. N.L.R.B., 429 F.2d 1329 (Cir. 1972) is cited in support of this contention. Although I recognize that failure to draw an adverse inference might be reversible error in a proper case, the instant case is distinguishable from the case cited. "Generally ... whether to draw the inference is a matter of discretion for the fact finder." UAW at 1339. At 459 F.2d 1340-42, the Court of Appeals listed four "special" reasons for their insistence on the adverse inference rule, three of which are inapplicable here. The second reason cited in UAW is 29 U.S.C. 160(b)(1970)[fn]6 which establishes evidentiary rules for the N.L.R.B. proceedings. This stands in contrast to 26 M.R.S.A. 968(6).[fn]7 The obvious difference between these statutes is the more relaxed procedural and evidentiary requirements of the Maine Statute. _______________ 6 This provides that N.L.R.B. proceedings "shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States...." 7 This section provides that "[t]he hearings conducted by the board pursuant to this section shall be informal and the rules of evidence prevailing in judicial proceedings shall not be binding. -5- ______________________________________________________________________________ The third reason cited in the UAW opinion is "defiance of the Boards compulsory process." This reason is in- applicable due to the different facts of the instant case. The fourth reason cited was the Board's adherence to the rule in cases indistinguishable from the UAW case. No showing has been made that the M.L.R.B. has a body of "adverse inference" law developed in cases identical to the one before this Court. Where more than one inference is supportable from the record as a whole, this Court will not find error in the refusal of the Board to draw one particular inference. In this case, sufficient facts from the record suggest that absence of testimony bv the Town Manager was not due to fear of adverse testimony.[fn]8 No abuse of discretion was involved in the failure to draw an adverse inference. _______________ 8 On direct examination, the employer's representative sought to bring out the fact that the Town Manager had made the decision to discharge Doherty. (tr. 154). The Town Manager was listed as a witness by the Town. Although the union had notice of these facts well before the end of the hearing, they made no attempt to present the Town Manager's testimony themselves. On these facts, it was permissible not to draw an adverse inference. Cf. NLRB v. Massachusetts Machine & Stamping, Inc., 578 F.2d 15, 20 (1st Cir. 1978) (since company also could have called a witness, no error where Board refused to draw adverse inference from Board's failure to call a witness). -6- ______________________________________________________________________________ SUFFICIENCY OF EVIDENCE Title 26 M.R.S.A. 968(F) provides that "the findings of the board on questions of fact shall be final unless clearly erroneous." "Findings of fact supported by credible evidence are not clearly erroneous.: Conover v. Conover, 403 A.2d 352 (Me. 1979).[fn]9 While plaintiff presented considerable evidence at the hearing below, theirs was not the only evidence in the case. Sufficient facts exist in the record to support the Board's finding that patrolman Doherty was discharged for misrepresentation to his superior, and not due to his union activities. Accordingly, no error is found in the Board's decision. REQUEST TO REMAND During the pendency of the appeal, appellant filed a motion with the Board to reopen the record, obviously, the Board lacked jurisdiction. The appellant now urges this Court to remand the matter to the Board for further hearing. In view of the conclusions reached on the appeal, an order remanding the case to the Board for further evidence is considered inappropriate. Consequently, the appellant's request to remand is denied. _______________ 9 The "clearly erroneous" standard for evaluating administrative findings is basically the same as the "substantial evidence" test. See 2 FIELD, MCKUSICK & WROTH, MAINE CIVIL PRACTICE 80B.6 (1977 Supp.) n. 34.65. -7- ______________________________________________________________________________ The entry will be: The Decision of the Maine Labor Relations Board is AFFIRMED. Plaintiff's Appeal is DENIED. Plaintiff's request to remand is DENIED. Dated: February 10, 1981 /s/___________________________________ Roland J. Poulin - Judge, District Court (A.R.) assigned to Superior Court -8- ______________________________________________________________________________