Inhabitants of the Town of Winthrop and Charles Jackson, Police Chief v. 
MLRB and Teamsters, CV-84-538, appeal from No. 84-06, Motion for Stay of 
Board Decision denied (12/11/84), Decision and Order (July 11, 1985).

STATE OF MAINE                                        SUPERIOR COURT
KENNEBEC, SS.                                       Civil Action
                                                    Docket No. CV 84-538

a municipal corporation duly organized    )
under the laws of the State of Maine,     )
with a place of business in Winthrop,     )
Maine,                                    )
and                                       )
CHARLES JACKSON, in his capacity as       )
Chief of Police in the Town of Winthrop,  )
Maine,                                    )
               Plaintiffs                 )
v.                                        )        MOTION FOR STAY
agency of the State of Maine,             )
and                                       )
TEAMSTERS LOCAL UNION #48, State,         )
county, municipal and university          )
employees in the State of Maine,          )
with a place of business at Augusta,      )
Maine,                                    )
               Defendants                 )

     NOW COME the Plaintiffs in this matter and request that a stay of
the decision of the Maine Labor Relations Board dated November 16, 1984,
be granted, and in particular that paragraphs 2, 3, 4, 5 and 6 of the
Order which appears on pages 8 and 9 of the Decision be stayed pending
the outccme of this appeal for the following reasons:

     1. Substantial and irreparable injury will be sustained by the
Employer if the Decision is not stayed because the reinstatement of
Officer Fred Pullen will necessitate the discharge of another police
officer while subsequent to the discharge.

     2. Further, the payment of back wages to Officer Fred Pullen will
place the Town in a position of jeopardy in the recovery of these funds
in the event that the Plaintiff's appeal is sustained.
     3. Upon information and belief, Officer Fred Pullen has other income
and other employment at the present time which allows him to continue his
prior standard of living without the payment of his retroactive pay and

     4. The Plaintiffs further contend that the re-employment of Officer
Fred Pullen at the present time would pose a substantial risk and danger
to the public health and safety in view of the Employer's belief that
Officer Fred Pullen has falsified official documents and engaged in other


conduct unbecoming of a police officer and which further renders Officer
Pullen a serious liability to the effective operation of the Winthrop
Police Department.

     WHEREFORE, the Plaintiffs request that a hearing be held at the Court's
earliest convenience for the presentation of evidence on the matter of the
granting of a stay of the order of the Labor Board dated November 16, 1984.

Dated:  December 3, 1984

                                  Lee K. Bragg, Esq.
                                  Attorney for Plaintiffs

                                  Bernstein, Shur, Sawyer & Nelson
                                  Two Central Plaza
                                  Augusta, Maine 04330

12/11/84 - Motion for Stay Denied for reasons set forth on the record.                              

                                  /s/Morton Brody


STATE OF MAINE                                       SUPERIOR COURT
KENNEBEC, ss.                                          CIVIL ACTION
                                               Docket No. CV-84-528

WINTHROP, et al.,
et al.,
                  Defendants                 DECISION and ORDER





et al.,

     This matter is before the Court pursuant to M.R.Civ. P. 80B
and 26 M.R.S.A. Sec. 968(5)(F) (Supp. 1984-85) for review of a
decision by the Maine Labor Relations Board that the Town of
Winthrop (Town) committed a prohibited practice.  The parties
appeared before the Court for a hearing on June 5, 1985.
     The central issues on appeal are first, whether anti-union
bias was a motivating factor in the Town's discharge of two
members of its police department, Officer Pullen and Corporal
Cookson, and second, whether Pullen and Cookson, or either of
them, would have been discharged even absent any anti-union
                           I.  Facts
     The Maine Labor Relations Board made the following findings
of fact.
     The instant litigation arose out of the firing of two members
of the Town's police department, Officer Pullen and Corporal
     Over a period of approximately three years, Officer Seth
Higgins, as Shop Steward, filed between 30 and 40 union grievances
with the Town's Chief of Police, Charles H. Jackson.  The personal
relationship between Higgins and Jackson steadily deteriorated,
with Higgins convinced that Jackson would not take union grievances
seriously, and Jackson convinced that Higgins was set on driving
him from office.
     Chief Jackson had been a union man himself during previous
employment, and he had come to Winthrop without any preconceived
hostility towards unions.  However, he also attached great importance
to personal loyalty to himself, and what began as Jackson's
personal vendetta against Higgins soon escalated to anti-union
feelings on the part of the Chief.
     Pullen's discharge stemmed from his filing of false information
with public agencies in connection with his work as an instructor
in Emergency Medical Technician (EMT) training.  For the purpose
of receiving a certificate of course completion from the Kennebec
Valley Vocational Technical Institute dated back to February
3, 1983, Pullen falsely reported that he had conducted a formal
EMT course of instruction on February 1, 2, and 3, 1983, when
the course was actually given from February 14 to March 14.
The "back-dated" certificate was necessary for Pullen to continue,
without interruption, his status as a licensed EMT instructor.

     Cookson's discharge was also based in large part on the
EMT episode.  For the purpose of obtaining a renewal of his
EMT license, Cookson allowed his name to be submitted to the
KVTI as a participant in the fictitious February 1-3 course.
He also had Leonard Bates, as Chief of Service of the Monmouth
Rescue Unit, certify him as being affiliated with that unit,
in satisfaction of an independent requirement for EMT license
renewal.  In addition to falsely certifying Cookson, Bates allowed
his name to be included as a participant in Pullen's non-existent
Feb. 1-3 EMT course, and submitted the February 3rd course completion
certificate to the State to renew his own EMT license.
     As a result of their participation in the EMT affair, Pullen
and Cookson were discharged.  Bates received no discipline.
                         II.  Discussion

     The so-called "Wright Line test," gleaned from Wright Line
v. Lamoureux, 251 N.L.R.B. 1083 (1980) and endorsed by the Supreme
Court in National Labor Relations Board v. Transportation Management
Corporation,  ___  U.S. ___, 103 S.Ct. 2469 (1983), requires
a two-tiered approach to dual-motive cases.  The Union bears
the initial burden of showing, by a preponderance of the evidence,
that an anti-union animus contributed to the employer's decision
to discharge an employee.  If the Union is successful, the employer

can still prevail by, demonstrating by a preponderance of the
evidence that the worker would have been fired even if he had
not been involved with the union.
     Title 26 M.R.S.A.  968(5)(F) directs that "findings of
the [Maine Labor Relations Board] on questions of fact shall
be final unless shown to be clearly erroneous."  The findings
of fact of the Board are to be upheld if there is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."  Sanford Highway Unit v. Town of Sanford, 411
A.2d 1010, 1014 (Me. 1980).  The "clearly erroneous" standard
is the same as the "substantial evidence" test employed in review
pursuant to the Maine Administrative Procedures Act.  Id.

     The Board's conclusion that anti-union animus was a motivating
factor in the discharge of Pullen and Cookson is a finding of
fact, and it is supported by substantial evidence.  In addition
to the well documented problems between Chief Jackson and Higgins,
which could be reasonably seen as giving rise to anti-union
sentiment on Jackson's part, the Board heard testimony from
Pamela Tegelaar, a former reserve police officer, Christopher
Dumaine, a former chief of police and non-union employee of
the Winthrop Police Department, and Judith Teague, a dispatcher
for the Department, regarding Jackson's anti-union feelings.
Though other Department employees testified that Jackson's policy
was to treat all employees equally regardless of union affiliation,
the presence of inconsistent evidence in the record does not
prevent an agency's findings from being sustained if there is
substantial evidence to support them.  Seven Islands Land Co.
v. Maine Land Use Regulation Commission, 450 A.2d 475, 479 (Me.
     The Board's finding that, notwithstanding Jackson's anti-union
bias, Pullen and Cookson would have been disciplined anyway,
is similarly supported by substantial evidence.  For filing
false information with the State regarding his EMT work, Pullen
could have been charged with a Class D crime.  Manipulation
of public records is highly improper conduct under any circumstance.
It is particularly egregious behavior in a public servant endowed
with the public trust.  Similarly, Cookson's role in the EMT
affair, standing alone, supported disciplinary measures.
     The Union argues that the Department's failure to discipline
Bates for his role in the EMT scam demonstrates that no action
would have been taken against Pullen and Cookson absent their
union affiliation.  Whether Bates' misconduct was qualitatively
worse than that of Pullen is a close question.  The Board itself
noted that "[mlembers of the Department would understandably
conclude that because he was not a Union member Bates received
no discipline whatever, while Pullen for his actions was
discharged."  Pullen initiated the EMT course incident; Bates
allowed the inclusion of his name as a "student" in the course.
Bates' later conduct in falsely certifying Cookson as affiliated
with the Monmouth Rescue Unit, while reprehensible, was a
transgression less elaborate than Pullen's.
     While Pullen's misconduct was arguably more serious than
Bates', the marked disparity in disciplinary measures -- discharge
for Pullen, no discipline for Bates -- is highly supportive
of the Board's determination that the disciplinary action taken
against Pullen would have been milder absent the existence of
anti-union animus.  Far from being an "isolated example" of
favoritism towards non-union personnel, as characterized by
the Town, the lenient treatment of Bates for substantially similar
conduct including personal involvement in the same underlying
incident would lead a reasonable person to believe that anti-union
bias influenced the Town's actions.  Therefore, the Board's
findings that Pullen would have been disciplined anyway, but
less harshly, will be upheld.
     Cookson presents a different situation.  His involvement
in the EMT episode was essentially passive, as Pullen reported
the fictitious EMT course with Cookson listed as a participant,
and Bates falsely certified Cookson as affiliated with the rescue
unit.  The Board's finding that Cookson "would and should" have
been discharged notwithstanding any anti-union sentiment was
based on his involvement in "a long series of episodes in which
he demonstrated an inability to adhere strictly to the truth."
Though the Board is silent on what "episodes" it is referring
to, the reference is apparently to Cookson's various accidents
with his police cruiser.  Evidently, the majority of the Board
found Cookson's accounts of those incidents incredible:  the
majority stated that it "noted evidence of Cookson's problem
with the truth during the course of his sworn testimony before

the Board, some of which was far from persuasive."
     From the early days of administrative law, the determination
of the credibility of witnesses has been uniquely the province
of the hearing body, by virtue of that body's opportunity to
observe their demeanor or conduct at the hearing.  See Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474
(1951) (cited in In re Maine Clean Fuels, Inc., 310 A.2d 736,
741 (Me. 1973)).  As factfinder, an administrative agency can
reject even uncontradicted testimony based on a witness's lack
of credibility.  See Mack v. Municipal Officers of the Town
of Cape Elizabeth, 463 A.2d 717, 720-21 (Me. 1983).  The Board
was entitled to discredit Cookson's accounting of his alleged
past misconduct, much of which was in fact contradicted by the
testimony of others.  The Board was similarly entitled to find
that the EMT episode was for Cookson just the latest of a series
of events, the cumulative effect of which bore on his honesty
and overall fitness to be a police officer, and merited his
discharge from the force.
     The Town's remaining argument on appeal is that 26 M.R.S.A. 
968(5)(C) limits the Board's authority to vary the discipline
levied by the employer.  The Town's position seems to be that
where, as in Pullen's case, cause for some discipline is found
by the Board, the employer enjoys unfettered discretion to decide
what that discipline should be.  The "all or nothing" approach
urged by the Town, in which the Board would either have to affirm
a discharge or preclude all discipline, is not required by  

            After hearing and argument if, upon a
          preponderance of the evidence received,
          the board shall be of the opinion that any
          party named in the complaint has engaged
          in or is engaging in any such prohibited
          practice, then the board shall in writing
          state its findings of fact and the reasons
          for its conclusions 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 reinstatement
          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 employee
          who has been suspended or discharged, or
          the payment to him of any back pay, if such
          individual was suspended or discharged for
(emphasis added).  Section 968(5)(C) grants the Board broad
remedial powers.  The last sentence of the section must be read
as limiting those powers only where cause exists for the particular
sanction assessed by the employer.

     The Court concludes that the Board's decision should be

     Therefore, it is ORDERED and the entry shall be:

     1.  Cross-appeals DENIED.

     2.  The decision of the Maine Labor Relations Board is

Dated: July 11, 1985       ________________________________
                               MORTON A. BRODY
                               Justice, Superior Court