The Town of Sanford, Maine Police Department issued a new rule that prohibited supervisors from criticizing Department policies and procedures in the presence of subordinates. The Sanford Police Association filed an unfair labor practice complaint with the Maine Labor Relations Board, contending that the new rule unlawfully interfered with the exercise of protected rights by bargaining unit members.

The Board rejected the Town’s request that it dismiss the complaint. The Town argued that the Association’s complaint really focused on the constitutionally-protected free speech rights of its members, and that a federal court rather than the Board should have jurisdiction over the complaint. The Board acknowledged that the Town was right on the jurisdictional issue, finding that it lacked the authority to actually decide constitutional claims.

However, the Board also found that a single employer action could raise both constitutional issues and those arising out of state labor laws, and that it did have authority to hear complaints about the latter. As the Board put it, “the Board’s lack of jurisdiction to hear the First Amendment issue, however, has no bearing on the Board’s authority to continue with its adjudication of the interference, restraint, or coercion charge.”

The Board also found that the standards applying in a constitutional free speech case – whether the employee was speaking “as an employee” or “as a citizen” – would not apply in unfair labor practice proceedings. Rather, the Board found, unfair labor practice complaints involving union communications would turn 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 Collective Bargaining Act.”

Town of Sanford, No. 09-04 (Maine LRB 2009).

This article appears in the November 2009 issue