This prohibited practice complaint, filed by the Maine State
Employees Association, SEIU Local 1989 ("MSEA" or the "Union") on
February 26, 2009, alleges that the State of Maine's Department
of Public Safety (the "Employer") violated the State Employees
Labor Relations Act by engaging in direct dealing with employees,
thereby breaching its duty to bargain in good faith in violation
of 26 M.R.S.A. 979-C(1)(A) and (E).  Specifically, the complaint
alleges that the Employer failed to bargain in good faith with
the Union in violation of 26 M.R.S.A. 979-C(1)(E) when the
Director of the Crime Lab negotiated with employees about
reassigning duties and submitting a reclassification request to
compensate for the newly-assigned duties.  The complaint further
alleges that the Employer's action interfered with, restrained or
coerced employees in the exercise of their rights protected by 26
M.R.S.A. 979-B(1) in violation of 979-C(1)(A).  
     Throughout this proceeding, Alison Mann, Esq., represented
the Maine State Employees Association, SEIU Local 1989; and  
Joyce Oreschovich, Esq., represented the State of Maine,
Department of Public Safety, through the Bureau of Employee
Relations.  An evidentiary hearing was held on December 10, 2009,
and January 28, 2010.  The parties submitted post-hearing briefs, 

[end of page 1]

the last of which was filed on March 23, 2010.[fn]1  On May 13,
2010, the Board met to deliberate this matter.    
               
                           JURISDICTION
 
     The Maine State Employees Association-SEIU Local 1989 is the
bargaining agent within the meaning of 26 M.R.S.A. 979-A(1), and
the State Department of Public Safety is the employer within the
meaning of 26 M.R.S.A. 979-A(5).  The jurisdiction of the Board
to hear this case and to render a decision and order lies in 26
M.R.S.A. 979-H(2).

                              FACTS
                         
1.   The Maine State Police Crime Laboratory is part of the
     Department of Public Safety.  The Crime Lab Director, Mr.
     Elliot Kollman, is a civilian employee who reports to the
     command staff of the State Police, which includes Colonel
     Patrick Fleming, the Chief of the Maine State Police and
     Major Ray Bissette, who is in charge of support services,
     including the Crime Lab.  
2.   Mr. Kollman started as the Director the Maine Crime Lab
     about 6 years ago.  Mr. Kollman is also an American Society
     of Crime Laboratory Directors/Laboratory Accreditation Board
     Inspector.  Over the years he has done ten accreditations.  
     The Crime Lab had received an inspection and initial
     accreditation 3 or 4 years prior to Mr. Kollman's arrival. 
     After his arrival, the Lab went through its first re-
     accreditation, with Sgt. Harwood and Director Kollman
     working together through the process.  The next scheduled 

     [fn]1.  On March 19, 2010, it became apparent that Board Member Wayne
Whitney had a conflict that prevented him from further participation. 
Member Carol Gilmore received a copy of the transcript and the full
record and deliberated with the Board on this case.

[end of page 2]

     re-accreditation was set for April of 2009, which would be
     the second re-accreditation or third inspection.  Five years
     from that accreditation would be the first one using the
     international standards, which impose additional require-
     
     ments on the managment of the Lab.  One new requirement is
     that the supervisors in the technical areas, such as latent
     prints and firearms units, will be required to have
     technical expertise in the area being supervised.
3.   The Crime Lab's organizational chart from 2007 shows the Lab
     divided into five sections:  Biology, Chemistry, Latent
     Prints, Firearms, and Photograph/Evidence Receiving.[fn]2 
     The supervisors in the Biology and Chemistry units are
     identified as "Supervisor Senior Laboratory Scientists,"
     which reflects the fact that they possess technical
     expertise in those disciplines.  Sergeant Harwood is
     identified as the supervisor for the Latent Prints Unit, the
     supervisor for the Firearms Unit, and the supervisor of the
     Photography/Evidence Receiving Unit.  Sergeant Harwood is
     also listed as the Assistant Director of the Laboratory.
4.   While Sgt. Harwood had significant work experience in
     forensic science prior to becoming a member of the Maine
     State Police, he did not have the specific expertise and
     training necessary to provide technical supervision of the
     forensic work in the latent prints and firearms units of the
     Lab.  Consequently, his supervisory responsibilities for
     these two units were administrative, not technical.  If the
     scientists in these two units needed technical guidance with
     a difficult case, they were able to contact a specialist in
     the Portland Police Department.  Sergeant Harwood was also
     responsible for the photography and evidence receiving 

    [fn] 2.  Computer crimes may also be a separate function within the
Lab.

[end of page 3]

     section of the Lab, and, as the Assistant Director of the
     Lab, all of the section supervisors reported to the Director
     through him.  In addition, Sergeant Harwood served as the
     quality manager for the Crime Lab. 
5.   In April of 2007, the MSEA and the State signed a Memorandum
     of Agreement in which the parties agreed to meet with a
     representative of the Bureau of Human Resources for
     "collaborative discussions to address the matters of pay
     equity and a career ladder for the Crime Lab."  Staff from
     the Bureau of Human Resources and various forensic
     scientists held a series of meetings during 2007 and 2008 to
     discuss these issues.  The career ladder issue referred to
     the lack of opportunity for upward mobility for those in the
     field of forensic science due to the extremely small job
     market in this field in Maine.  The pay equity issue
     reflected a concern about different technical specialties
     being in different pay grades.  Those involved in these
     meetings were in agreement that the job descriptions for all
     of the forensic scientists should be comparable, having the
     same primary duties and the same pay grade.  The group's
     objective was to create a career ladder of Forensic
     Scientist I, Forensic Scientist II, and Forensic Scientist
     III (or Senior Forensic Scientist), with the pay grade tied
     to the level, not to the technical specialty.  There was no
     discussion specifically on creating a Supervisory job
     description as part of this career ladder, though there was
     some thought that eventually it might be appropriate.
6.   The Bureau of Human Resources is the agency that manages the
     state compensation system.  The Bureau conducts job analyses
     and audits to ensure that every position in state government
     is classified appropriately and assigned to the proper pay
     grade.  Decisions on job classifications and allocation of 

[end of page 4]

     those classifications to pay grades are made by the Bureau
     of Human Resources, not by the supervisors or managers in
     the operational areas.  The supervisors and managers provide
     information on the tasks performed and the responsibilities
     of each job, and they respond to inquiries from the Bureau,
     but the decision on reclassifications rests entirely with
     the Bureau of Human Resources.
7.   If an employee thinks that the duties and responsibilities
     of his or her position have changed since its initial
     classification, the employee may submit a request for a
     reclassification.  Requests for reclassification are
     submitted through a lengthy form called an "FJA petition,"
     which initiates what is called a "functional job analysis". 
     A job analyst in the Bureau of Human Resources reviews the
     information provided by the employee and compares it to the
     current classification.  The analyst conducts an audit to
     determine what tasks are being performed and to what extent. 
     The analyst will discuss the audit with the supervisor or
     manager.  Based on all of the information gathered, the
     analyst makes a determination on whether the employee should
     be in a different classification.  Ms. Robin Danforth, the
     State's Merit System Coordinator, reviews all of the
     analysts' reports and sends the final decision to the
     employee, the manager, and to the Budget Office and the
     State Controller.  
8.   MSEA-SEIU or the employee's supervisor or manager may also
     submit a reclassification request using the same procedure
     and the same FJA form.  About 400-500 reclassification
     requests are submitted each year, about 25% of which are
     management initiated.
9.   Article 53 of the 2007-2009 collective bargaining agreement
     for the Professional and Technical Services bargaining unit 

[end of page 5]

     establishes the process for appealing reclassification
     determinations made by the Director of Human
     Resources.[fn]3  Sections 3 and 4 address the effective
     date of reclassification or reallocation:

          3. Except for reclassifications and reallocations
          in connection with a reorganization, any
          reclassification or reallocation decision of the
          Director of Human Resources or the Arbitrator or
          Alternate shall be effective as of the date of the
          written initiation of the reclassification or
          reallocation request by the employee, MSEA-SEIU or
          State and shall be implemented retroactively when
          the funds are provided pursuant to budgetary
          procedures.
               . . .
          4. Reclassifications and reallocations in
          connections with a reorganization shall be
          effective on the date they are approved and
          implemented.

10.  Most reclassification petitions filed by management address
     proposed changes in job assignments or more extensive
     reorganizations.  A typical management-initiated reclass-
     
     ification petition results in a pay change that is effective
     when the reorganization is implemented.  Most reclassific-
     
     ation requests submitted by management are granted; if the
     Bureau of Human Resources determines that the request will
     be denied, management withdraws the request.  There is
     nothing in the collective bargaining agreement or state 

   [fn] 3.  The article defines classifications and reclassifications
as "the assignment or reassignment, respectively, of a position
or group of positions to an occupational classification which is
appropriate for compensation and employment purposes" and defines
allocation and reallocation as "the assignment or reassignment,
respectively, of a classification to the appropriate grade in the
compensation plan."

     [fn] 4.  The effective date of a pay change is not the same as the date
the pay increase is received. Often, due to the budgeting process, the
change is made retroactive to the effective date.

[end of page 6]

     policy that prohibits management from filing a petition to
     address a change in duties that has already been
     implemented.
11.  Employee-initiated reclassification requests address changes
     that have already occurred.  As such, if the reclassifica-
     
     tion request is granted, the pay change is effective
     retroactively to the date the request was filed.   
12.  In accordance with Article 53, when the new duties are
     already being performed and the reclassification is
     subsequently granted, the employee is entitled to
     retroactive pay, regardless of who initiated the
     reclassification request.  Robin Danforth, the Merit Systems
     Coordinator, testified that on more than one occasion she
     had to notify the Budget Office that a management-initiated
     request was actually based on duties that had already been
     taken on, rather than on prospective changes.  Her
     instruction to the Budget Office is that the pay adjustment
     must be retroactive to the date of the change, not the date
     the reclassification was approved.  
13.  Section 11 of the FJA-1 form is the section asking for the
     justification for the reclassification request.  In the FJA-
     1 form revised on 04/08, section 11 states:
          Justification for request; identify changes
          to the position and/or reason(s) for the
          request.[fn]5 

14.  A number of employees in the Crime Lab had received 
     reclassifications in the past few years.  Kim Stevens's
     position was awarded dual-discipline status through the
     reclassification process, a Clerk III became a forensic 

     [fn] 5.  The FJA form in use prior to the 04/08 revision also requested
the following information: "Give purpose for assigning these duties to
this position (reorganization, combination of positions, Legislative
mandate, etc.)."

[end of page 7]

     technician to reflect the evidence receiving
     responsibilities, the Forensic Chemist III serving as the
     unit supervisor was reclassified to a Senior Laboratory
     Scientist.  Some of the reclassification requests that were
     denied by the Bureau of Human Resources are still on appeal,
     including that of Gretchen Lajoie.  Her reclassification
     request, filed in 2005, was based, in part, on performing
     supervisory duties in the fire debris unit within the
     chemistry section.  The request was denied and the appeal is
     awaiting arbitration.
15.  In July of 2008, Sgt. Harwood received a promotion to a
     Special Projects position in the Department of Public Safety
     (outside of the Crime Lab) that was to become fully
     effective that September.  With the consent of Kollman and
     the command staff, Sgt. Harwood began spending most of his
     time in his new position, although he remained available to
     help in the Crime Lab during the transition.  
16.  Upon learning of Sgt. Harwood's planned departure, Kollman
     went to the command staff to request that the Sergeant's
     position be "civilianized," that is, made into a senior
     laboratory scientist position, rather than a position that
     could only be filled by a sworn State Police officer.  His
     arguments for this change were partly based on the ASCLD/LAB
     international accreditation standard, which would be imposed
     in five years, requiring the use of technical personnel in
     supervisory positions over technical functions.  Kollman's
     request to civilianize the position was denied.  
17.  Given the budgetary constraints facing all state agencies,
     Kollman knew there was no possibility of creating a new
     position in the Crime Lab.  Kollman had learned from someone
     in the Human Resources Department that if he assigned new
     responsibilities to an employee, he could follow that with a 

[end of page 8]

     reclassification request or have the changes considered
     through a reclassification request already submitted by the
     employee.  
18.  Kollman felt that there was an immediate need for someone
     with an understanding of quality management issues to get on
     board in order to prepare the application for re-accredit-
     
     ation by the March 2009 deadline.  Gretchen Lajoie had some
     supervisory duties in the chemistry unit and regularly
     attended Kollman's staff meetings.  Kollman considered
     Lajoie to be part of his supervisory staff and was
     comfortable assigning the quality manager duties to her
     based on her experience and organizational skills.  Kollman
     testified that all of his staff agreed that she was the
     obvious choice.  
19.  When Kollman informed Lajoie of these new responsibilities,
     he viewed it as simply a matter of telling her that she
     would be assuming those responsibilities.  There was no
     discussion of which specific duties she might be interested
     in, just a statement that she would take on the quality
     manager function.  There was no discussion of pay, just that
     he would submit the paperwork for a reclassification.  
20.  In an email dated July 18, 2008, Sgt. Harwood informed the
     lab that he would be spending most of his time in his new
     position even though the promotion would not be effective
     until September.  He indicated that he and Kollman had
     determined who would take over his various duties
     temporarily until his replacement was hired.  This email
     identified Gretchen Lajoie as taking over all of the quality
     manager duties.  
21.  Sometime before July 30, 2008, Kollman decided to
     permanently assign these duties to Lajoie, although this
     decision was not made public until later.  On July 30, 2008, 

[end of page 9]

     he sent an email to Lajoie and her immediate supervisor,
     Ronald Kaufman, indicating that he was in the process of
     filling out an FJA based on the additional quality manager
     responsibilities that would be added, and stating, "[u]pon
     [Harwood's] promotion, I will submit the paperwork to HR to
     start the reclassification process."    
22.  The parties stipulated to the following:  
          On or before July 30, 2008, Gretchen Lajoie spoke
          with Elliot Kollman about the fact that she had a
          reclassification request pending and told him that
          she didn't want the quality manager change to
          interfere with the back pay which she believed she
          might receive pursuant to that reclassification
          request.  

23.  The reclassification request dated August 14, 2008, was
     submitted by Lajoie and was granted on December 26, 2008. 
     The effective date of the reclassification was August 14,
     2008, and the request for funding of the pay change was
     submitted to the Legislature as part of the supplemental
     budget.  At the time of the hearing, the funding request was
     still pending before the Legislature.
24.  The parties stipulated to the following: 
          Sometime before September 3, 2008, Gretchen Lajoie
          had a conversation with Elliot Kollman in which
          she asked him when he planned to announce to the
          staff that she was taking the quality manager
          position/duties which she referred to in an e-mail
          as 'the quality manager position.'  Elliot told
          Gretchen to keep it quiet until he could announce
          it at a staff meeting, which was an idea Gretchen
          did not like.  Subsequently Elliot began telling
          people who asked what he was doing so that people
          heard it piecemeal and not all at once.
     
25.  On September 9, 2008, Kollman sent an email announcing that,
     effective September 2, 2008, Lajoie was the quality manager
     for the Crime Lab.  In this same email, Kollman announced
     that Sgt. Robin Parker would be joining the Laboratory 

[end of page 10]

     management staff as of September 22, 2008.  
26.  Sergeant Parker had never worked in a forensic laboratory
     and did not have the type of technical training necessary to
     serve as a technical supervisor for latent prints and
     firearms unit.  Kollman's email of September 9, 2008, noted
     that Sgt. Parker's duties were ERT administration, evidence
     control, digital evidence oversight, lab security and
     safety.
27.  A number of employees in the lab were disappointed by the
     manner in which Kollman appointed Lajoie as quality manager
     because opportunities for advancement were so rare in the
     lab.  Some employees testified that they would have applied
     for the job if it had been posted in the normal manner.
28.  On September 10, 2008, a lab employee showed Kollman's email
     of September 9, 2008, to C.J. Betit, an MSEA representative. 
     This was the first the Union knew about this issue.    
29.  The collective bargaining agreement requires that all job
     vacancies be posted to allow employees to apply for the
     position.  The posting must include a description of the
     job, the pay rate, the required qualifications and
     requirements for applying for the position.  A position must
     be established before there can be a posting for it.  In the
     situation at the Crime Lab, the position being vacated was
     Sgt. Harwood's position, which was part of the State Police
     bargaining unit.  The latent prints and firearms supervisory
     duties were just part of that position, not a separate job
     that could be posted.
30.  The collective bargaining agreement has a provision enabling
     an employee to receive "acting capacity" pay when the
     employee has been temporarily assigned to a job in a higher
     pay grade and works in that job for a minimum of one week. 
     This provision only applies when there is a vacant position 

[end of page 11]

     and an employee in a lower pay grade is filling in on a
     temporary basis.  
31.  When it came time to identify a technical person to take
     over the supervision of the Latent Prints/Firearms section,
     Kollman recognized that he had three lab scientists working
     in that area who were all technically qualified to assume
     those duties.  Kollman notified these three bench scientists
     by email in late August of his plans to assign the
     supervisory duties to one of them.  In that email, Kollman
     indicated that he would set up an interview process for
     those who were interested and would submit the
     reclassification request after the duties were reassigned. 
     A week or so earlier, he had told one of these employees
     that the personnel specialist for the department had told
     him that his reclassification request would be supported.
32.  The three employees, Alicia Wilcox, Cynthia Homer, and   
     Kim Stevens, all notified Kollman that they were interested
     in the opportunity to take on the supervisory duties. 
     Kollman sent an email scheduling them for interviews on
     September 16, 2008.  The interview process was the same for
     all:  Kollman asked all the questions, while three others
     (the DNA Supervisor, the Chemistry Supervisor, and Gretchen
     Lajoie) listened and took notes.  At the beginning of each
     interview Kollman stated that there would not be any
     technical questions; all his questions were related to
     supervisory issues.  Because the reclassification had not
     been submitted at this stage, no one present had any idea of
     what the pay for the revised position would be.  
33.  Two days after the interviews, Kollman met with the three
     people who had interviewed for the position and the fourth
     person in the latent prints and firearms unit.  Kollman
     announced that Kim Stevens got the job.  Kollman sent an 

[end of page 12]

     email to the entire laboratory on September 18, 2008, with a
     subject heading of "New Supervisor" stating, "Effective
     immediately, Kim Stevens will be assuming the duties of
     Supervisor of the Firearms and Latent Print Units.
     Congrats!"
34.  Both of the employees who interviewed but were not assigned
     the Latent Prints and Firearms supervisory duties testified
     that they felt that the interview process was a sham.  For a
     variety of reasons, they felt that Kollman had already
     selected Stevens and was more or less just going through the
     motions of an interview.  They were disappointed in the
     process because there are so few opportunities for
     advancement in the field of forensic science in Maine. 
     Based on Kollman's assurances of submitting the
     reclassification paperwork they assumed that they were
     applying for a position with increased pay.
35.  Kollman submitted a reclassification request for Stevens on
     September 25, 2008, after he had assigned her the
     supervisory duties.  This reclassification request was
     granted on October 18, 2008, moving her to Senior Laboratory
     Scientist.  The memo from the Department of Administrative
     and Financial Services communicating this approval stated:
          We have approved management's request as
          indicated above. This action is contingent on
          Bureau of Budget review and approval of the
          proposed request, to include solving any
          funding problems associated with this action,
          establishment of an appropriate effective
          date, and formal assignment of the proposed
          new duties.    

36.  On January 12, 2009, Stevens submitted her own
     reclassification request based on the same change in duties. 
     When Robin Danforth at the Bureau of Human Resources became
     aware that Steven's request had already been approved as a 

[end of page 13]

     management-initiated reclassification, Danforth contacted
     Kollman to confirm that Stevens was already performing those
     duties.  Danforth then notified the Bureau of Budget that
     the effective date of her reclassification should be
     September 18, 2008, the date that the change in job duties
     was implemented.    
37.  Kollman was able to find money in his budget to fund the pay
     increases associated with the two reclassifications first by
     converting a vacant photographer position to a part-time
     photographer position, then later by converting it to a
     part-time technician position.  Freeing up money in this
     manner was thought to increase the likelihood of the
     reclassifications being funded. 
38.  The management rights provision of the collective bargaining
     agreement authorizes management to make job assignments:
     ARTICLE 41.  MANAGEMENT RIGHTS
          The MSEA-SEIU agrees that the State has and will
          continue to retain the sole and exclusive right to
          manage its operations and retains all management
          rights, whether exercised or not, unless specifically
          abridged, modified or delegated by the provisions of
          this Agreement.  Such rights include, but are not
          limited to, the right to determine the mission,
          location and size of all agencies and facilities; the
          right to direct its work force; to administer the merit
          system; to establish specifications for each class of
          positions and to classify or reclassify and to allocate
          or reallocate new or existing positions in accordance
          with the law; to discipline and discharge employees; to
          determine the size and composition of the work force;
          to eliminate positions; to make temporary layoffs at
          its discretion; to contract out for goods and services;
          to determine the operating budget of the agency; to
          install new, changed or improved methods of operations;
          to relieve employees because of lack of work or for
          other legitimate reasons; to maintain the efficiency of
          the government operations entrusted to them; and to
          take whatever actions may be necessary to carry out the
          mission of the agency in situations of emergency.

[end of page 14]
                          DISCUSSION
          
     The complaint before us alleges that the Employer's conduct
in reassigning duties from one position in the Crime Lab to
another, then reclassifying that position, amounted to a failure
to bargain in good faith in violation of 26 M.R.S.A 979-C(1)(E)
because the interaction with the employees concerning these
changes amounted to direct dealing.  The complaint also alleges
that this direct dealing violated 26 M.R.S.A. 979-C(1)(A) by
interfering with employees in the exercise of the rights
guaranteed by the Act.  For the most part, the facts are not in
dispute; the issue is whether the Employer's actions violated the
Act.
     
     Once a union becomes certified or recognized as the
bargaining agent, the employer is obligated to bargain solely
with that union over the terms and conditions of employment for
employees in that unit.  26 M.R.S.A. 979-F(2)(B) (the certified
union is "the sole and exclusive bargaining agent for all of the
employees in the bargaining unit").  Bypassing the bargaining
agent, either by making a change in a mandatory subject
unilaterally or by dealing directly with the unit employees, is a
failure to bargain in good faith in violation of 979-C(1)(E)
because it is, in essence, a refusal to bargain.  MSEA v. State
of Maine, Bureau of Alcoholic Beverages, No. 78-23 (July 15,
1978) ("a public employer's unilateral change in a mandatory
subject of bargaining undermines negotiations just as effectively
as if the public employer altogether refused to bargain over the
subject"), aff'd State of Maine, Bureau of Alcoholic Beverages v.
MLRB and MSEA, 413 A.2d 510 (Me. 1980) and MSEA v. BMHI, No.
84-01, at 7 (the employer must bargain with the exclusive
representative of the employees not with the employees directly). 
Furthermore, negotiating with anyone other than the bargaining 

[end of page 15]

agent is interference with the rights guaranteed the Act, in
violation of 26 M.R.S.A. 979-C(1)(A).  MSEA v. BMHI, No. 84-01,
at 7; citing Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 684
(1944).  See also Allied Signal, Inc., 307 NLRB 752, 754 (May 29,
1992) ("Going behind the back of the exclusive bargaining
representative to seek the input of employees on a proposed
change in working conditions . . . plainly erodes the position of
the designated representative."), accord, Teamsters v. Aroostook
County Sheriff's Dept., No. 92-28, at 24-25 (Nov. 5, 1992). 
  
     The Board's analysis of direct dealing charges was most
recently described in MSEA v. State of Maine Department of Public
Safety.  In that case, the Board reviewed prior case law which
had consistently held that merely informing employees of changes
is not considered direct dealing because it is not negotiating
over a mandatory subject of bargaining.  As the Board stated:
     
     It is the employer's conduct that is key to a finding
     of direct dealing, and the distinction between notice
     to an employee regarding a change in working
     conditions, and a proposal for such a change, is
     determinative.  

MSEA v. State of Maine Dept. Of Public Safety, 09-13 at 6 (Aug.
21, 2009).  The employer's conduct must be closely reviewed to
discern the nature of the interchange with the employee.  For
example, in Orono Fire Fighters Ass'n v. Town of Orono, the Board
held that a meeting in which the employer gave notice to an
employee of a change in his work schedule did not constitute
direct dealing, even though it was considered a unilateral
change.  No. 89-18 at 11 (Sept. 21, 1989).  Similarly, in Jay
School Department, a memo to employees reminding employees of an
opportunity to request a transfer was not considered direct
dealing because the memo did not make a proposal or solicit a
response from employees.  Teamsters v. Jay School Dept., No. 

[end of page 16]

06-22 at 8 (Nov. 21, 2006).  If the employer's action is not just
informing but seeking a response to a proposal, direct dealing
may have occurred.  The Board has  concluded that the employer
engaged in direct dealing when the employer sent a questionnaire
to employees asking them to choose among alternatives for
scheduling furlough days.  Teamsters v. Aroostook County, No.
92-28 at 24 (Nov. 5, 1992).  Similarly, the Board concluded that
direct dealing occurred when survey questions were clearly
intended to solicit employee input on negotiable matters.  AFSCME
v. City of Portland, No. 90-14 at 18 (Oct. 18, 1990) (15 out of
19 survey questions related to current or alternative pension
benefits).  Direct dealing can also be more subtle than directly
asking for employee input, as in the Maine Maritime case where
the employer solicited a response by making a low offer, then
responded to the employee's obvious dismay by changing the
starting salary and benefits package for the position.  MSEA v.
Maine Maritime Academy, No. 05-04 at 21 (Jan. 31, 2006). 
  
     Before discussing the merits of the Union's case, it is
necessary to emphasize that this case is a narrow case limited to
direct dealing.  The issue as stated in the Union's post-hearing
brief bears repeating here: 
     
     Whether the conduct of Respondent's Crime Lab Director
     Elliot Kollman, in the course of changing the jobs of
     Ms. Gretchen Lajoie and Ms. Kim Stevens, constituted
     "direct dealing" in violation of 26 M.R.S.A. 979-
     C(1)(A) and (E).
  
We note that it is not necessary for us to determine whether the
Employer's conduct constituted a violation of the collective
bargaining agreement or whether it constituted a unilateral
change in a mandatory subject of bargaining in order to address
the direct dealing charge in this case. 

[end of page 17]
     
     The present case concerns two separate positions at the
Crime Lab whose duties were changed in a manner that the Union
alleges involved direct dealing.  The first issue is the addition
of quality manager duties to the position held by Gretchen
Lajoie, the subsequent reclassification of that position, and the
announcement of that change to the lab employees.  The second is
the reassignment of supervisory duties in the Latent Prints and
Firearms sections of the Lab, the discussions with employees in
that unit concerning who would assume those duties, and the
subsequent reclassification of the affected position.  
 
     The Employer argues that the charge regarding Lajoie's
position must be dismissed as untimely.  The Employer is correct
in arguing that the Board is prohibited from relying on evidence
of events occurring more than 6 months prior to the filing of the
complaint.  The State Employees Labor Relations Act states, 
". . . no hearing shall be held based upon any alleged prohibited
practice occurring more than 6 months prior to the filing of the
complaint . . . ."  26 M.R.S.A. 979-H(2).  The Board's long-
standing standard for applying that provision is that the six-
month statute of limitations "begins to run when the complainant
knew, or reasonably should have known, of the occurrence of the
event which allegedly violated the Act."  Coulombe v. City of
South Portland, No. 86-11, at 8 (Dec. 29, 1986).
 
     The complaint in this case was filed on February 26, 2009,
which means the violation must be based on events occurring on or
after August 26, 2008.  With respect to the charge involving
Lajoie's position, most of the actions alleged to be direct
dealing occurred in July or early August, outside of the six-
month limitation period.  The record is clear that the Union did
not know of the events until September 10, 2008, when an employee
showed the union field representative a copy of the email stating 

[end of page 18]

that Lajoie was the Lab's new quality manager.  We agree with the
Union that given the facts of this case and the nature of the
alleged infraction, the Union cannot reasonably have known of the
handling of the quality manager functions any earlier.  Thus, we
reject the Employer's argument that this portion of the complaint
is untimely.        
 
     As noted above, for conduct to be considered direct dealing
there must be something more than communication of a decision
already made.  With respect to Gretchen Lajoie and the quality
manager functions, there was no communication about wages, hours,
or working conditions beyond Kollman's statement that Lajoie
would be given additional duties and that he would submit a
reclassification request.  There was no evidence that Kollman
sought any input from Lajoie on, for example, which duties she
would assume, or how it would impact her wages or hours.  There
is no evidence in the record that Kollman negotiated in any
manner with Lajoie about submitting a reclassification request. 
The evidence is only that Lajoie communicated to Kollman her
concern about his reclassification request jeopardizing her
chances of receiving back pay from the reclassification request
she filed in 2005.   
 
     We do not consider Kollman's request for information on how
much time Lajoie spent of various duties to be the sort of
communication that constitutes direct dealing.  Even though it
might have an end result of a change in pay grade, it was merely
a request for the factual information necessary for the
completion of the reclassification request form.  There was no
attempt to solicit from Lajoie suggestions or sentiments about
any mandatory subject of bargaining.  Kollman was just processing
the information.  We are also not persuaded by the Union's claim
that the communication with Lajoie regarding the effect on her 

[end of page 19]

pending reclassification request was direct dealing.  Article 53
of the collective bargaining agreement allows reclassification
petitions to be submitted by either management or the employee,
so it cannot be said that this interchange involved a proposed
change in a mandatory subject of bargaining.
 
     The Union contends that Kollman's email to the Laboratory
staff with the announcement that Lajoie was the new quality
manager was sent in response to Lajoie's expressed displeasure
with how the news was getting out.  Even if the evidence were
clear that her comment prompted him to send the email, which it
is not, that is not direct dealing.  There is no evidence that
the delayed announcement of a decision on the assignment of
duties had any impact on a mandatory subject of bargaining.
 
     With respect to the reassignment of supervisory duties in
the Latent Prints and Firearms section, the Union argues that the
Director engaged in direct dealing with various employees through
the interview process.  We disagree.  Kollman decided on his own
which duties would be assigned.  There is nothing in the record
to suggest that he negotiated with any of the three interviewing
employees about which supervisory duties would be assigned, about
the workload, or the level of responsibility to be added, nor was
there any negotiation about wages.  The email he sent out to
determine who was interested clearly stated that once the new
duties were assigned, he would submit a reclassification request. 
Article 53 of the collective bargaining agreement clearly allows
management to submit a reclassification request.  The evidence is
clear that once the request was submitted, it would be processed
by the Bureau of Human Resources as all such requests are
processed.  As the Director of the Lab, Kollman had no authority
to decide its outcome.

[end of page 20]

     The Union contends that the Director "communicated with
employees themselves to work out how, when and what promotion-by-
reclassification would be realized."  MSEA Brief at 20.  The
Union's attempt at characterizing an interview as negotiating
with employees by saying the employees were "giving input as to
their own qualifications" and therefore it was "involving them in
the decision of what the change would be," MSEA Brief at 22, is a
distortion of what negotiations are.  Kollman was simply seeking
information from the employees on their ability to handle
supervisory responsibilities.  The Union's position on this issue
would transform into direct dealing any effort by management to
make a decision on the basis of information provided by
employees, rather than finding direct dealing when the employer
solicits employee sentiments on a proposed change in a mandatory
subject of bargaining.        
 
     We conclude that the Union has failed to prove that the
Crime Lab Director engaged in direct dealing in changing the job
duties of Gretchen Lajoie and Kim Stevens.  The changes in job
assignments were made unilaterally and the subsequent reclass-
ification requests reflected those changes.  None of the
interactions Kollman had with these employees included any
attempt at give-and-take negotiation.  Neither the reassignment
of duties to these two employees nor the handling of the
reclassification requests constituted direct dealing.       
     
     It is not our role to determine whether there was a
violation of the contract or whether the State's reclassification
procedures were properly followed or administered by the State's
Bureau of Human Resources or the Crime Lab Director in this
specific case.  We recognize, however, that the Union has a
legitimate concern about the possibility that tight budgets in
the future across state government may prompt individual managers 

[end of page 21]

to reassign higher level duties and seek a reclassification after
doing so.  We think it is the parties' responsibility to raise
this issue at the bargaining table and find a solution through
negotiation.

                              ORDER

     On the basis of the foregoing discussion, and by virtue of
and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A.  979-H(2), it is ORDERED that the
prohibited practices complaint filed by the Maine State Employees
Association is dismissed.
               
Dated at Augusta, Maine, this 9th day of July, 2010.