STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-21
Issued: August 16, 2001
______________________________
)
MAINE STATE EMPLOYEES )
ASSOCIATION, LOCAL 1989, )
SEIU and ELIZABETH MCKENNEY, )
)
Complainant, )
)
v. ) INTERIM DECISION ON
) MOTION TO DISMISS
BUREAU OF EMPLOYEE RELATIONS, )
STATE OF MAINE, and MAINE )
STATE LIBRARY, )
)
)
Respondents. )
______________________________)
This prohibited practice complaint was filed by the Maine
State Employees Association ("Union") and Elizabeth McKenney on
April 21, 2001, alleging that the State violated 26 M.R.S.A.
979-C(1)(A), (B), (C) and (E) by discharging Elizabeth McKenney
two weeks after she was hired to work at the State Library. The
question presented by the State's Motion to Dismiss is whether
the complainant has failed to state a claim upon which relief can
be granted because of the undisputed fact that Ms. McKenney has
less than the six months of employment necessary to come within
the definition of state employee under the State Employees Labor
Relations Act ("SELRA" or "Act"). We hold that two of the
alleged violations state a valid claim for relief and can proceed
to hearing.
The facts as alleged in the complaint are essentially as
follows: Ms. McKenney was hired by the Maine State Library on
March 20, 2001, as a Library Assistant. On her first day of
employment, she asked to join the union and told her supervisor
and other employees that she was looking forward to joining the
union and being an active union member. She informed her
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supervisor and others that her mother was a Chief Steward for the
MSEA at another state department. On her second or third day of
employment, her supervisor told her that "we here" disliked the
union. Other co-workers expressed similar feelings against the
union. Although her supervisors corrected some errors during the
first week of employment, Ms. McKenney received compliments on
her work and got along with her co-workers and supervisors. On
April 3, 2001, Ms. McKenney was informed that she was being fired
because she had not learned the job quickly enough. When asked
for examples, the Head Librarian could not offer any, and said
simply that she was "not a good fit."
The Union alleges that the State of Maine has interfered
with, restrained and coerced employees in the exercise of their
rights guaranteed by 979-B and discriminated against
Ms. McKenney in order to discourage union membership, thereby
violating 979-C-(1)(A), (B) and (E).[fn]1 The State denies these
allegations and responds that the Board has no jurisdiction to
hear the complaint because Ms. McKenney is not a "state employee"
under SELRA.
JURISDICTION
The Board's authority to consider and rule upon the State's
motion lies in 979-H(2) of the State Employees Labor Relations
Act, 26 M.R.S.A. ch. 9-B.
DISCUSSION
There is no question that Ms. McKenney is not a state
employee within the meaning of the Act because she was only
employed by the State for two weeks. The Act's definition of
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1 The Union's complaint also alleged a violation of 979-C(1)(C).
In its response to the State's Motion to Dismiss, the Union recognized
that the citation to (1)(C) was in error and offered to amend the
complaint. Accordingly, we consider the complaint amended to remove
the allegation that the State violated 979-C(1)(C).
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"state employee" includes a number of exclusions, including an
exclusion for any person "who has been employed less than 6
months". 26 M.R.S.A. 979-A(6)(E). It is, however, necessary to
look at all of the relevant provisions of SELRA, not just at the
definition of state employee, in order to determine whether a
valid complaint has been alleged. Before doing so, the
preliminary question of standing must be addressed.
Section 979-H of SELRA authorizes the Board to adjudicate
complaints that a party has engaged in a prohibited practice.
Subsection 979-H(2) details the requirements for filing
prohibited practice complaints with the Board. That subsection
states:
2. The public employer, any state employee, any state
employee organization or any bargaining agent which
believes that any person, the public employer, any
state employee, any state employee organization or any
bargaining agent has engaged in or is engaging in any
such prohibited practice may file a complaint with the
executive director of the board stating the charges in
that regard.
By the terms of the statute, Ms. McKenney has no standing to file
a complaint with the Board because she is not a state employee
nor is she any of the other entities listed. Ms. McKenney must
therefore be dismissed as a complaining party. The Maine State
Employees Association is authorized to file a complaint as it is
both a state employee organization and a bargaining agent.
Section 979-B is the heart of SELRA. It is the section of
the Act that affirmatively grants collective bargaining rights to
state employees. It states, in full:
No one shall directly or indirectly interfere with,
intimidate, restrain, coerce or discriminate against
state employees or a group of state employees in the
free exercise of their rights, hereby given,
voluntarily to join, form and participate in the
activities of organizations of their own choosing for
the purposes of representation and collective
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bargaining, or in the free exercise of any other right
under this chapter. (Emphasis added)
Applying the definition of state employee to this provision
dictates the conclusion that a person with less than six months
of employment has no collective bargaining rights under the Act.
As a person excluded from the definition of state employee,
Ms. McKenney has no statutory entitlement to the benefits of
collective bargaining. Although Ms. McKenney has no collective
bargaining rights under 979-B, she is provided with some of the
protections of the Act set forth in 979-C.
Section 979-C lists the actions specifically prohibited by
the Act, and those on which all complaints must be based.
Section 979-C(1) lists the various prohibited acts by a public
employer. Specifically, an employer is prohibited from:
A. Interfering with, restraining or coercing employees
in the exercise of the rights guaranteed in section
979-B.
B. Encouraging or discouraging membership in any
employee organization by discrimination in regard to
hire or tenure of employment or any term or condition
of employment;
C. Dominating or interfering with the formation,
existence or administration of any employee
organization;
D. Discharging or otherwise discriminating against an
employee because he has signed or filed any affidavit,
petition or complaint or given any information or
testimony under this chapter;
E. Refusing to bargain collectively with the
bargaining agent of its employees as required by
section 979-D;
F. Blacklisting of any employee organization or its
members for the purpose of denying them employment.
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In looking at the wording of the six paragraphs specifying
public employer prohibited acts, the object of the prohibition
varies depending on the nature of the act prohibited. Thus, the
employee organization is the object of two of the prohibitions
related to the employer's conduct toward the union as an entity
in the (1)(E) refusal-to-bargain violation and the (1)(C)
violation of dominating or interfering with an employee
organization. The individual state employee is the object of two
other prohibitions, the (1)(A) prohibition against interfering
with employees' 979-B rights and the (1)(D) prohibition against
discriminating against an employee for participating in a Board
hearing. The prohibition against blacklisting in (1)(F) by
definition concerns the employer's communication with other
employers. In each of these provisions, the Legislature chose
language describing the object of the protection that comports
with the prohibited act itself. With this is mind, we can assess
the viability of each alleged violation in the Union's complaint.
Section 979-C(1)(A) prohibits "interfering with, restraining
or coercing employees in the exercise of the rights guaranteed in
section 979-B." The plain meaning of this provision is that it
only applies to acts against those who fit within the definition
of employee. As noted above, Ms. McKenney is not a state
employee and she has no section 979-B rights. Thus, even if the
Union could prove that her discharge was due to her pro-union
statements and that it had a coercive effect on her, that in
itself would not be a (1)(A) violation. The Union could show a
(1)(A) violation, however, on the basis of the impact of her
discharge on other employees who do have section 979-B rights.
See Alfred Hendsbee and Maine State Troopers Assoc. v. Dept. of
Public Safety, Maine State Police, No. 89-11 (Me.L.R.B. Jan. 16,
1990)(Board has jurisdiction to hear complaint that investigation
of non-unit employee constituted unlawful interference, restraint
or coercion of unit employees). The State's Motion to Dismiss is
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denied with respect to the (1)(A) violation.
The complaint also includes an allegation that the State
violated section 979-C(1)(B), which states that an employer is
prohibited from:
B. Encouraging or discouraging membership in any
employee organization by discrimination in regard to
hire or tenure of employment or any term or condition
of employment;
There are two critical aspects of this provision. The first is
that there is no limitation on the scope of the prohibition to
those who are "employees," as in section 979-C(1)(A). By its
terms, 979-C(1)(B) applies to any person who could be
discriminated against in employment by the State. Given the fact
that the objects of the other prohibited acts were crafted to fit
the nature of the prohibited act, we have no doubt that the
Legislature's phrasing of (1)(B) to apply to all individuals, not
just "state employees," was intentional.
The second and related issue is that (1)(B), by its terms,
relates to "hire or tenure of employment." Why would the
Legislature have prohibited discrimination in regard to "hire"
but allowed it with respect to employees with less than six
months of service? The only sensible reading of (1)(B) is that
it applies to applicants for hire and recent hires as well as
state employees.
Contrary to the assertions of the State, the Board has
previously addressed the issue of whether a person employed by
the State for less than six months is covered by any of the
provisions of SELRA. The Board addressed this issue squarely in
its Interim Order in Stephen and Gladys Buzzell, William Wasson
and MSEA v. State of Maine, No. 96-14 (Me.L.R.B. Sept. 22, 1997).
In that case, the Board rejected the State's argument that the
Buzzells and Mr. Wasson had no rights under SELRA because, if
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they were not independent contractors, the Buzzells as seasonal
employees were excluded from the definition of employees and
Wasson had not been employed six months. In rejecting the
State's argument, the Board stated "the law is well settled that,
in some circumstances, a public employer can violate the rights
of its organized employees through actions taken in connection
with exempt individuals." Id. at 15, citing Maine State
Employees Association v. State of Maine, No. 81-06, at 8
(Me.L.R.B. Apr. 28, 1981)(rejecting the State's argument that its
actions regarding excluded managerial and confidential employees
could never constitute a violation of the Act). The Board
refused to dismiss the entire complaint in Buzzell because, even
if it were to conclude that the Buzzells and Wasson were excluded
from the definition of state employees under the Act, "the
employer can violate 979-C(1)(A) and (B) through actions
directed at persons who are not State Employees, within the
meaning of the Act." Id. at 15.
The Board specifically addressed the scope of 979-C(1)(B)
in Buzzell by first noting that it is patterned after 8(a)(3) of
the National Labor Relations Act, which was interpreted to
protect applicants for employment as well as those already
employed long before SELRA was enacted. Buzzell, slip op. at 14,
citing, NLRB v. Town and Country Electric, Inc., 516 U.S. 85, 116
S. Ct. 450, 452, 133 L.Ed.2d 371 (1995), and Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 185-186, 62 S.Ct. 845, 848-849, 85 L.Ed.
1271 (1941). The Board considered the application of SELRA's
979-C(1)(B) to applicants to be "consistent with the plain
meaning of the language in 979-C(1)(B)" which prohibits
employers from:
B. Encouraging or discouraging membership in any
employee organization by discrimination in regard to
hire or tenure of employment or any term or condition
of employment; (Emphasis added.)
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The Board concluded that "if this section did not extend to job
applicants, the word 'hire' in the statute would have no effect."
Id., at 15.
We agree with the Union's argument that it would be
irrational for the Act to protect job applicants and individuals
with six months of service but not those State workers who have
less than six months of employment. We think the U.S. Supreme
Court's explanation of the protection of job applicants under
8(a)(3) of the NLRA is instructive. In noting that discrimin-
ation against union applicants is a significant obstacle to
collective bargaining, the Supreme Court stated, "[d]iscrimin-
ation against union labor in the hiring of men is a dam to self-
organization at the source of supply." Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 185 (1941). That same logic applies whether
the dam is placed at the hiring gate or within the first six
months of employment. We reaffirm our holding in Buzzell that
the protections of 979-C-(1)(B) extend to those with less than
six months of employment.
The final allegation contained in the complaint is that the
State's discharge of Ms. McKenney "undermined the rights of
employees to effective and independent representation by the
MSEA, through collective bargaining," in violation of 979-
C(1)(E). As noted previously, Ms. McKenney is excluded from the
definition of "state employee" and therefore not entitled to the
benefits of collective bargaining under 979-B. Because she has
no collective bargaining rights, there can be no refusal-to-
bargain violation under 979-C(1)(E). The State's motion to
dismiss is granted with respect to that portion of the complaint.
Before closing, it is necessary to address the Board's 1983
decision in Council 74, AFSCME, Joan Ross and Robert Ross v.
Richardson and Penobscot County Commissioners, No. 84-04
(Me.L.R.B. Nov. 8, 1983). In that case, the question presented
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was whether the Board had jurisdiction to hear a complaint of
discrimination against two county employees who were excluded
from the definition of "employee" under the Municipal Public
Employees Labor Relations Act.[fn]2 In reviewing the Ross decision,
we see that the analysis of the application of the statute to
excluded employees was seriously flawed.
Ross involved discrimination against an on-call employee and
an individual with less than six months of employment, both
excluded from the definition of employee under the Municipal Act.
The Board in Ross started with the conclusory statement, which we
now see as wrong, that "Since excluded employees are not
protected by the labor relations statutes, the general rule is
that discriminatory actions by an employer against excluded
employees are not violations of labor law." Ross, slip op. at 3.
The Board did not cite any authority or offer any statutory
analysis to support this statement. The Board went on to
consider whether there were any exceptions to that "general rule"
that would give it jurisdiction to hear the case. We disagree
with the Board's analysis but agree with its ultimate conclusion
that the Board may hear cases involving excluded employees in
limited situations. The specific situations identified in Ross
were based on the National Labor Relations Board's handling of
cases involving the discharge of supervisors.[fn]3 Supervisors are
excluded from the definition of employee under the National Labor
Relations Act, but the NLRB will hear cases involving the
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2 There are some differences between the Municipal Act and SELRA
in the exclusions from the definition of employee. The prohibited
practices under the Municipal Act, however, are identical to the
prohibited practices under the SELRA.
3 While Maine's collective bargaining laws have a variety of
exclusions from the definition of employee based on differing
policies, the National Labor Relations Act's exclusion of supervisors,
and, by case law, managers and confidential employees, is based on a
policy of allowing the employer to demand the undivided loyalty of
those parts of its workforce.
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discharge of supervisors in limited situations. Those situations
are when a supervisor is discharged for testifying before the
Board or in grievance proceedings or when a supervisor is
discharged for refusing to violate the law by committing an
unfair labor practice.[fn]4 We agree with the conclusion in Ross
that the Board should hear cases in which the facts alleged
indicate that one of the identified exceptions apply. As the
Board stated in Ross:
Certainly we should not allow an employer to accomplish
something through the discipline or discharge of ex-
cluded employees which he could not lawfully accomplish
by the same actions against covered employees.
Ross, No. 84-04, slip op. at 4. As explained above, the Ross
Board's error was in its initial statement that excluded
employees have no protections under the Act. The Act itself,
including especially section 979-C(1)(B), governs the protections
due excluded employees under Maine law.
In summary, the State's Motion to Dismiss is denied in part
and granted in part. Ms. McKenney must be dismissed as a party
to the complaint because she is not a state employee. The
State's Motion to Dismiss is granted with respect to the 979-
C(1))(E) violation but is denied with respect to the (1)(A) and
(1)(B) violations.
ORDER
On the basis of the foregoing assumptions of fact and
discussion and pursuant to the provisions of 26 M.R.S.A. 979-
H(2), it is hereby ORDERED:
1. That Elizabeth McKenney is dismissed as a party to
the complaint.
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4 The third situation that sometimes arises under the NLRA but
would not arise under any Maine Act is where a supervisor who hires
his own crew is discharged as a pretext for discharging the
supervisor's pro-union crew.
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2. That the motion to dismiss filed by the State on
May 21, 2001, is denied, except as to the alleged
violation of 26 M.R.S.A. 979-C(1)(E).
3. The executive director shall, in the normal course
of business, schedule a prehearing conference and
evidentiary hearing on the merits of the Union's
complaint.
Dated at Augusta, Maine, this 16th day of August, 2001.
MAINE LABOR RELATIONS BOARD
/s/_____________________________
Jared S. des Rosiers
Alternate Chair
/s/______________________________
Karl Dornish,Jr.
Employer Representative
/s/______________________________
Wayne W. Whitney
Alternate Employee Representative
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