The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-2017-29
DAVID TRASK,
Petitioner
DECISION AND ORDER
V.
FRATERNAL ORDER
OF POLICE,
Respondent
The matter before the court is the appeal by David Trask (Petitioner) from the
May 17, 2017 Decision and Order of a tluee-member panel of the Maine Labor
Relations Board (the "Board" or MLRB), dismissing his prohibited practice
complaint against his former union, the Frate1nal Order of Police (Respondent or
FOP). Specifically, the Board rejected the Petitioner's claims that the FOP violated
its duty of fair representation towards him and other members of the union in
connection the dissolution of the Madison Police Department in June 2015. This
appeal has been brought in accordance with 26 M.R.S. §968(4), 5 M.R.S. §§1101
11008 (Administrative Procedure Act) and M.R.Civ.P. SOC.
FACTUAL AND PROCEDURAL BACKGROUND
The collective bargaining agreement between the Town of Madison and the
Maine Association of Police (MAP) expired on June 30, 2010. (Record, hereinafter
"R," at 6). The terms of the agreement continued in effect while the Town and
MAP continued negotiations to reach a successor agreement. In 2012, the Fraternal
Order of Po]ice replaced MAP as the bargaining agent for the members of the
Madison Police Department, of which the Petitioner was a member. Jack Parlon
was the chief negotiator for FOP with the Town. Negotiations continued into 2013
and 2014, at which time the parties filed for interest arbitration.
In August 2014, the assessed value of the Madison Paper Industries Mill (the
Town's largest taxpayer), was reduced from approximately $230 million to $80
million, resulting in a loss of tax revenue to the Town of approximately $2.2
million. (R. at 236). This development was the subject of discussion between the
negotiators for the Town and FOP. Mr. Parlon testified that he believed or
suspected that the Town was using the mill devaluation as a tactic to avoid
bargainmg in good faith or to induce the FOP to accept the Town's terms. (R. at
98). Ultimately, the FOP filed a prohibited practice complaint against the Town in
December 2014, alleging a failure to bargain in good faith.
In January 2015, Dale Lancaster was elected Sheriff of Somerset County.
Shortly after his election, Sheriff Lancaster was approached by Madison town
officials who inquired about the possibility of having the Sheriffs Department
provide police services to the Town. Sheriff Lancaster met privately with the soon
to-be retired Madison Police Chief and developed a proposal that included having
the existing Town of Madison Police Department empl_oyees being hired by
Somerset County. The proposal conte1nplated the County providing the same level
of police services to the Town, but was budget neutral for the County because of
savings from administrative costs and benefits.
In March 2015, the Madison Select Board met and voted in favor of a
proposal to dissolve the Police Department effective July 1, 2015, and thereafter
receive policing services from the Somerset County Sheriffs Department. A
newspaper article reporting on the Select Board's meeting and vote was published
in the Morning Sentinel on March 24, 2015. The proposal.was to be subject to a
public vote at the upcoming Town Meeting in June, 2015. The March 24, 2015
newspaper article was the first public notice that the Town was pursuing a plan to
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dissolve the Police Department and contract with the Sheriffs Department for
police services, although rumors of such a possibility had ]>een circulating within
the community.
Mr. Parlon testified that he had never experienced a situation where a
municipality disbanded its police department. The FOP held a couple of informal
meetings with the members of the Madison Police Department bargaining unit, and
Mr. Parlon spoke several times to the Petitioner about the potential consequences of
the proposal to be voted on at the Town Meeting. Moreov~r, the Petitioner had a
personal relationship with the President of the Somerset County Law Enforcement
Unit, and the Petitioner would sometimes speak with him about his concerns.
A public meeting was held on April 6, 2015 at which Sheriff Lancaster
appeared. The Sheriff explained the proposal and answered questions from the
audience. He stated that the 5 police officers and 1 secretary employed by the
Madison Police Department, would be hired as county employees with county
wages and benefits. A video of that meeting was admitted at the hearing before the
MLRB as Complainant's Exhibit 5.
During thls same time period, the FOP was also the bargaining agent for the
Law Enforcement Division of the Somerset County Sheriffs Depaitment, and the
parties were able to successfully negotiate a new collective bargaining agreement
by the end of June 2015. During those negotiations, Mr. Padon and the Sheriff
discussed the Madison employees, and how they would be treated if they became
county employees. The Sheriff suggested a separate memorandum of agreement
that would cover those individuals. Mr. Padon opposed that idea on the ground that
it would create two classes of employe~s with different ·terms and conditions of
employment. The Sheriff made it clear to Mr. Parlon that the Madison police
officers would be hired by the county as new employees, with no preservation of
their rank or seniority, and subject to the standard probationary period of six
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months. In other words, the Sheriff did not agree to a "lateral" hiring or transfer of
these town employees.
At the time of these events, the Petitioner had been employed with the
Madison Police Department for over 2 7 years and had risen to the rank of sergeant.
Within that police force of 5 officers and the chief, the Petitioner had senior rank
and seniority, allowing him to have a prefe1Ted status with respect to overtime and
shifts. In addition, pursuant to the collective bargaining ag1:eement with the Town
of Madison, the Town paid 100% of the premium cost for family health insurance
coverage. The collective bargaining agreement with the Somerset County Sheriffs
Department provided -that the county would pay only 70% of the premium cost for
family or dependent coverage. Moreover, the Petitioner would lose his rank and
seniority, with the resulting loss of any preferred treatme.1;i.t regarding shifts and
overtime. In sh01t, the proposal to abolish the Madison Police Department and shift
policing services to the county, had significant and substantial financial
consequences for the employees of the Madison Police Department, particularly the
Petitioner. The Petitioner testified before the MLRB that th;ere was "a commonly
held belief" within the Madison Police Depaitment that the employees would go to
the Sheriffs Department with the same positions, but with a new contract. This, of
course, was not what the Sheriff contemplated.
On June 8, 2015, the voters of Madison were presented ·with two budget
options for police services. The voters approved the option that represented the
proposal to have the Sheriffs Department assume responsibility for police services
in Madison. The change became effective on July 1, 2015. After the vote, the
Petitioner met with the Sheriff and was told that he would not retain his rank and
seniority, but would be hired as a deputy on probationary status. The day after the
town vote (June 9, 2015), the FOP sent a formal demand for "joint impact
bargaining to determine wages, hours and worldng conditions under the proposed
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consolidation." (R. at 181; Jt. Exh. 5). Although the demand letter was addressed
to both the Town Manager and the County Administrator, it was only delivered to
the town.
On July 1, 2015, the fonner Madison Police Department employees were
hired by Somerset County as new employees. The impact bargaining session was
held on July 13, 2015, and focused on the financial impact on the former Madison
employees as a result of the higher contribution to the health insurance premium for
dependent coverage. Both Mr. Parlon and Mr. Trask attended this session. Mr.
Trask testified that Mr. Parlon was very supportive of him and his concerns.
Following the meeting, the Town's att01ney called Mr. Parlon to inform him that
since the Town was not legally obligated to do anything for the fo1mer employees,
it would not do anything. The FOP made no further effort to bargain with the Town
over the impact of the dissolution of the police department, nor did it seek
mediation. Mr. Padon testified that he had sought legal advice from FOP attorneys
at both the state and national levels. Based on that advice, he was doubtful that the
town was obligated to bargain over the impact of the voters' ,decision to disband the
police department.
The FOP retained Attorney John Chapman to assist and consult with the
Petitioner. The Petitioner asked Mr. Chapman if there was anything that could be
done to "undo the damage" and make things the way they were. Att0111ey Chapman
advised the Petitioner that there was nothing he was aware of that could be done.
Attorney Chapman also represented the Petitioner at a counseling 'Session with the
Sheriff regarding his work performance. In December 2015, while still on
probationary status, the Petitioner was terminated as a deputy sheriff. Later, on
December 28, 2015, the Petitioner filed his prohibited practice complaint against
the FOP with the MLRB. The complaint was later amended on Feb1uary 9, 2016.
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As amended, the complaint alleged that the FOP breached its duty of fair
representation owed to its members who were formerly employed by the Madison
Police Department, by failing to aggressively pursue impact bargaining on the issue
of health issue premiums for family and dependent coverage, and by failing to
pursue impact bargaining at all with respect to other issues, such as loss of rank and
seniority. 1 The Board also addressed the related issue of whether the FOP breached
its duty of fair representation by failing to demand impact bargaining prior to the
public vote that dissolved the police department.
A three-member panel of the MLRB held an evidentiary hearing on October
20, 2016 and Feb1uary 3, 2017. The panel heard the testimony of the Petitioner,
Mr. Parlon and Sheriff Lancaster. It also received into evidence Joint Exhibits 1-5,
and C01nplainant's Exhibits 1, 5 & 6, all of which are included in the administrative
record.
In a Decision and Order dated May 12, 2017, the Board panel made extensive
findings of fact, many of which have been summarized above, and ultimately
dismissed the complaint after concluding that the FOP "did not breach its duty of
fair representation because its conduct was not outside of the 'wide range of
reasonableness' that must be afforded to a union in the conduct of its affairs." The
Petitioner's appeal to this court was filed on May 25, 2017. Briefing was
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26 M.R.S. §967(2) (,I 5) provides that "[t]he agent certified by the executive
director of the board as the exclusive bargaining agent shall be required to represent
all the public employees in the unit ...." The Amended Complaint also alleged
that the FOP breached its duty of fair representation with respect to the Petitioner's
hiring as a Somerset County Deputy Sheriff. (R. at 43). The Executive Director of
the Board dismissed this claim against Somerset County for failure to state a claim
upon which relief may be granted. (R. at 45). That dismissal was not appealed to
the Board.
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completed on November 3, 2017 and oral argument was held on December 5,
2017. 2
DISCUSSION
The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag
Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116, ,r 12, 102 A.3d 1181
(quoting Friends of Lincoln Lakes v. Ed. ofEnvtl. Prof., 2010 ME 18, , 12, 989
A.2d 1128). The court is not permitted to overturn an agency's decision "unless it:
violates the Constitution or statutes; exceeds the agency's authority; is procedurally
unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by
bias or error of law; or is unsupported by the evidence in the record." Kroger v.
Departmental ofEnvironmental Protection, 2005 ME. 50, 1 7, 870 A.2d 566. See
also City of Bangor v. Maine Labor Relations Board, 658 A.2d 669, 671 (Me.
1995). The party seeking to vacate a state agency decision has the burden of
persuasion on appeal. Anderson v. Maine Public Employees Retirement System,
2009 ME. 134, ,r 3, 985 A.2d 501. In particular, a party seeking to overturn an
agency's decision bears the burden of showing that "no competent evidence"
supports it. Stein v. Me. Crim. Justice Academy, 2014 ME 82, ,r 11, 95 A.3d 612.
This court must examine "the entire record to dete1mine whether, on the basis
of all the testimony and exhibits before it, the agency could fairly and reasonably
find the facts as it did." Friends of Lincoln Lake v Board of Environmental
Protection, 2001 ME. 18 if13, 989 A. 2d 1128. The court may not substitute its
judgment for that of the agency's on questions of fact. 5 M.R.S. § 11007(3).
2
Preliminarily, the comt granted the request of the MLRB to participate in the
appeal as a party-respondent, on the basis of Bangor Water Dist. v. Maine Labor
Relations Board, 427 A.2d 973, 974, n.l (Me. 1981) and State v. Maine Labor
Relations Board, 413 A. 2d 510, 513 (Me. 1980). The court also denied the
Petitioner's motion to exclude the brief submitted by the MLRB.
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Determinations of the believability or credibility of the witnesses and evidence,
supported by substantial evidence in the record, should not be disturbed by this
court. Cotton v Maine Employment Security Commission, 431 A. 2d 637, 640 (Me.
1981 ). The issue is not whether the court would have reached the same result the
agency did, but whether the "record contains competent and substantial evidence
that supports the result reached" by the· agency. Seider v. Board of Examiners of
Psychologists, 2000 ME 206, 1 8, 762 A.2d 551 quoting CWCO, Inc. v.
Superintendent of Insurance, 1997 ME 226, 16, 703 A. 2d 1258, 1261.
The issue before the Board was whether the FOP breached its duty of fair
representation to the members of the unit, including the Petitioner, who were
fonnerly members of the Madison Police Department. In its Decision and Order,
the Board identified the proper legal standard for determining when a union's duty
of fair representation has been breached, namely, "when a union's conduct toward a
bargaining unit member is arbitrary, discriminatory, or in .b ad faith." R. at 246
citing Lundrigan v. lvfLRB, 482 A.2d 834 (Me. 1984) and Vaca v. Sipes, 386 U.S.
171, 190 (1967). Relying upon some of its earlier decisioDB, and Langley v. MSEA,
2002 ME 32, 791 A.2d 100, the Board described the scope of the duty of fair
representation as follows:
A union's actions are arbitrary only if, in light of the factual and
legal landscape at the time of the union's actions, the union's behavior
is so far outside of a wide range of reasonableness as to be in-ational.
A union's discriminatory conduct violates its duty of fair
representation if it is invidious. Bad faith requires a showing of fraud,
or deceitful or dishonest action.
(R. at 247).
In its Decision and Order, the Board described the factual and legal
landscapes that existed at the time, as it assessed the reasonableness of the union's
actions. The Board found:
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The factual landscape in the first months of 2015 includes the
$2.2 million budget shortfall faced by the Town, the Police Chiefs
pending retirement, the bargaining history between the Town and the
FOP including the prohibited practice complaint filed in late 2014, the
informal discussions that occurred after the Town announced the plan,
the mixed reaction to the proposal from Town residents at the April 6
public hearing, the lack of evidence that the Madison police officers
were opposed to becoming deputies, and the absence· of evidence that
unit members were advocating for the FOP to take a different approach
to impact bargaining.
The legal landscape at the time of the alleged breach was the
action taken by the Board of Selectmen to prese~t the proposed move
of policing services to the Town residents for approval at a Town
meeting, the statutory declaration that the duty to bargain does not
require either pa1ty to make a concession, the exclusion from coverage
of the Act those employees with less than six months of employment
with their employer, and the question surrounding the FOP's statutory
authority to demand bargaining or interest arbitration after the Police
Department ceased to exist on July 1, 2015.
(R. at 248).
With these landscapes in mind, the Board concluded that it was not arbitrary,
i.e., not irrational, for the FOP to decide not to pursue fmther impact bargaining on
the issue of health insurance premiums or on the other issues. Critical to the
Board's conclusion was its recognition that the union "had essentially no bargaining
I
leverage," and that it was "unlikely that the Town would have expressed any
interest in providing the employees any more money than they [the Town] had to."
(R. at 249). Moreover, the Board concluded that the FOP acted within the bounds
of reasonableness by attempting to work with the Sheriff to address some of the
members' conce1ns with the transition from town to county employment. Id.
Regarding the issues of rank, seniority and probationary status, Sheriff Lancaster
had made his position unmistakably clear, and it was not inational for the FOP to
conclude that it would have been fruitless to attempt to negotiate with the Town
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conce1ning employment conditions at the Sheriff's Department. Finally, the Board
found that the union's actions were not in-ational, particularly in light of the small
likelihood of success. Pursuing further impact bargaining or interest arbitration or
filing additional prohibited practice complaints most likely would have resulted in
protracted and expensive litigation, in the face of the reality that the Town had
abolished its police department and was adamant that it would not pay money it was
not obligated to pay, to members who were no longer employed by the Town. "The
reasonableness of a union's conduct must include consideration of the costs and
benefits of any course of action and the likelihood of success." (R. at 250). Given
the open question as to whether "the FOP had the statutory authority of a bargaining
agent once the Madison Police Department ceased to exist," the Board held that the
actions of the union were "not even unreasonable, let alone irrational." Id
The court has reviewed the entire record of the proceedings before the Board
and is satisfied that the Board's Decision and Order is supported by competent and
substantial evidence. Furthe1more, the Board applied the correct legal principles
and this comt perceives no abuse of discretion by the Board. The comt will address
the specific claims of error advanced by the Petitioner on appeal to this court.
The Petitioner's primary argument is his assertion that the Board erred in its
holding that the conduct of the FOP was not arbitrary. m assailing the Board's
ultimate conclusion and holding, the Petitioner challenges individual factual
findings by the Board, and also contends that the facts are (or should be) other than
what the Board found. In making this argument, however, the Petitioner is
essentially asking this comt to substitute its judgment for that of the Board's. More
specifically, this comt's role is not to conduct a de nova assessment of the evidence.
Rather, this comi's function is to review the administrative record in its entirety and
determine whether the Board's decision was supported by competent and
substantial evidence. The record must be examined in its entirety, not in selective
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bits and pieces. The court is satisfied that, taken as a whole, the record fairly and
reasonably supports the ultimate conclusion that the FOP's actions and decisions
were not outside the range of reasonableness so as to be irrational.
As part of his argument that the FOP's actions and inactions were arbitrary,
the Petitioner contends that the Town of Madison did not merely disband its police
department but, rather, it "contracted out" with Somerset County for police
services. In essence, the Petitioner maintains that this case is controlled by
Fibreboard Paper Products Corp. v. NL.R.B., 379 U.S. 203 (1964). The FOP, for
its part, claims that this case is more akin to a "plant closing" and, therefore, not
subject to mandatmy bargaining. See First National Maintenance Corp. v.
N.L.R.B., 452 U.S. 666 (1981). The Board did not expressly address or resolve this
disagreement between the parties in its Decision and Order.
In the court's view, the Board was conect in not wading into the complicated
and uncertain question of whether the Fibreboard or First National line of cases
applies in the context of a municipality, through a public vote of its citizens,
deciding to disband its own police operations, and· otherwise obtaining policing
services from another governmental law enforcement agency. That issue was not
before the Board for decision. Rather, the issue before the Board was whether the
FOP, in the context of the factual and legal landscapes existing at the time,
breached its duty of fair representation under the circumstances. As observed
earlier, the evidence before the Board rationally supported the Board's decision that
the union had not. In this regard, it is significant that the FOP sought and obtained
the advice of legal counsel on the national and state level. Based on that advice, the
FOP dete1mined that the Town of Madison was under no legal obligation to bargain
over the impact of the decision of the voters to eliminate its police department.
Whether that advice would ultimately be shown to be right or wrong is not the
point. What the Board was charged with doing was to make a determination, based
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on the evidence, as to whether the FOP acted arbitrarily in deciding not to pursue
further bargaining with the Town of Madison or to take other actions directed at the
Town as a result of the proposal and subsequent vote on June 8, 2015.
Next, the Petitioner has argued that the Board committed enor by concluding
that the FOP's conduct was not discriminatory towards him. The Board found that
the Petitioner had identified no facts to support his claim of discriminatory
treatment, but had simply ~sserted that the Petitioner had suffered significant harm.
(R. at 24 7). As noted earlier, to be discriminatory in the context of the duty of fair
representation means to be "invidious." 'The court agrees with the conclusion of the
Board that the Petitioner produced no evidence whatsoever that the FOP's actions
were discriminatory or invidious. The Petitioner did articulate a number of ways in
which the elimination of the Madison Police Department affected him because of
his longevity, seniority and rank. But that is not the same thing as showing that the
FOP acted invidiously.
The Petitioner also complains that the Board was wrong in "imposing a duty
on the members of the bargaining unit to decide the acti9n to be taken by the
Fraternal Order of Police." Pet. 's Brief at 18. The perceived basis for this claim is
the Board's observation that there was no evidence that the "unit members were
advocating for the FOP to take a different approach to impact bargaining." (R. at
248; see also R. at 250) ("there was no evidence that Mr. Trask or anyone else in
the bargaining unit suggested that the FOP continue the battle.").
Contrary to the Petitioner's argument, the Board imposed no duty on the unit
members to decide how the FOP should act on their behalf Rather, the Board
merely pointed out that, iri the context of the events leading up to public vote of
I
June 8, 2015 and the negotiations for having the fmmer town employees become
county deputies, the unit members did not urge the FOP ,to take any particular
12
action. No duty was imposed on the unit members, but their lack of advocacy was,
'
at least, a factor the FOP could take into account in deciding what to do.
The Petitioner further contends that the Board erred in its following
conclusion:
In light of all that had been going on, pursuing bargaining with
the Town would have pitted the desires of the Police Department
directly against the welfare of the taxpayers in a very public way. The
FOP 's desire not to do this was not irrational. (emphasis added).
(R. at 249).
The Petitioner points out that there was no evidence that the union wanted (or
desired) to avoid "pitting the desires of the Police Department directly against the
welfare of the taxpayers in a very public way" and, in any event, the FOP owed a
duty to the Petitioner, not to the taxpayers of Madison. At worst, the language used
by the Board was less than artful. The court understands the Board's point to be
.
that the union was confronting a somewhat delicate and unfamiliar situation and
dilemma. On the one hand, the voters of Madison had decided to dissolve the
Town's Police Department. This vote followed a long and contentious period of
negotiations for a new contract and was made after it became clear that the Town
was dealing with a major revenue shortfall of $2.2 million. At the same time, the
FOP was the bargaining agent for the Somerset County deputies, and the plan was
for the former employees of the town to become county employees. The proposal
involved the former employees working and patrolling in Madison, just as they had
done before but now as deputy sheriffs, not town police officers. The statement by
the Board in its Decision and Order merely reflects the obvious point that insisting
on more bargaining with the Town, or filing new or additional prohibited practice
complaints, in order to make the Town pay more money to its former employees,
was precisely what the vote of June 8, 2015 was designed to avoid. In any event,
the court agrees that if the statement by the Board was erroneous, it was harmless
13
and it does not undermine the otherwise competent evidence in the administrative
record.
Finally, the Petitioner takes issue with the following st~tement of the Board:
In its brief, the Complainant raises for the first time an alleged
breach of the duty of fair representation in the FOP's failure to demand
bargaining over the decision to contract with the Sheriffs, as distinct
from the impact of that decision. We dismiss this charge as untimely.
(R. at 247).
In his Brief before this court, the Petitioner maintains that the Board
misconstrued his argument, and that "[w]hat Petitioner does contend is that the
Fraternal Order of Police should have demanded bargaining over the terms of that
contract once the Town's decision had been made known." Pet. )s Brief at 21-22
(emphasis in original). Even if the Board misunderstood the ttue nature of the
Petitioner's argument on this point, the issue of demanding bargaining with the
Town of Madison over the terms of its contract with Somerset County was not
raised in the Amended Complaint before the Board and, accordingly, was untimely.
CONCLUSION
The entry is:
The Petition for Judicial Review of Final Agency Action is DENIED.
The Clerk is directed to incorporate this Order into the docket of this case by
notation reference in accordance with M.R.Civ.P. 79(a).
\ \
DATED: Januaiy 30, 2018.
Justice, Maine Superior Court
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