STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-28
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)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY AND MUNICIPAL )
WORKERS, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
CITY OF WATERVILLE and the )
WATERVILLE POLICE DEPARTMENT, )
)
Respondents. )
_______________________________)
This case comes to the Maine Labor Relations Board by way of a Prohibited
Practice Complaint dated March 3, 1978, and filed by Richard R. Peluso, Inter-
national Trustee, Teamsters Local Union No. 48, on March 13, 1978. An Answer
to the Complaint, dated April 3, 1978, was filed by James E. Millett, Esquire,
City Solicitor for the City of Waterville, on April 3, 1978.
A pre-hearing conference was held in this case on May 9, 1978 in Augusta,
Maine, with Alternate Chairman Donald W. Webber presiding. As a result of
this pre-hearing conference, Alternate Chairman Webber issued on May 9, 1978
a Pre-Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
On May 16, 1978, a hearing on the matter commenced at 9:30 a.m. in
Augusta, Maine, Alternate Chairman Donald W. Webber presiding, with Michael
Schoonjans, Employee Representative and Henry W. Mertens, Second Alternate
Employer Representative. All briefs on the legal questions raised by the case
were filed by June 27, 1978, and the Board proceeded to deliberate on the case
on June 28, 1978.
JURISDICTION
No party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that this Board has jurisdiction to hear
and render a decision in this case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the plead-
ings and the Pre-Hearing Conference Memorandum and Order, we find that:
1. Complainant Teamsters Local Union No. 48, State, County and Municipal
Workers ("Local No. 48") is a public employee organization which at
all times material herein was engaged in attempting to organize the
supervisory officers employed by the City of Waterville, Maine,
Police Department, with the aim of becoming the collective bargaining
agent for these employees as defined in 26 M.R.S.A. 962(2).
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2. Respondents City of Waterville and the City of Waterville
Police Department ("City" and "Police Department") are public
employers as defined in 26 M.R.S.A. 962(7), with an address
of City Hall, Waterville, Maine 04901.
3. At all times material herein, the Chief of the Police Department
and the Mayor of the City were aware of the organizational cam-
paign involving the supervisory officers employed by the Police
Department.
4. On February 15, 1978 at a meeting attended by supervisory officers
and dispatchers employed by the Police Department, the Chief of
Police read a letter from the City Mayor which stated, among other
things,that the Mayor "agreed to meet with a committee representing
the staff comprised of the Chief, Captain, two staff representatives
of the Police Department, and one dispatcher representative. This
will prevent having staff policies, procedures and/or benefits
bargained away by non-staff personnel."
5. After reading the Mayor's letter, the Chief of Police stated at the
February 15, 1978 meeting that, in his personal opinion, the
Teamsters Union was a "lousy outfit" not suitable to represent police
officers, that he would "prefer" that the assembled employees not
select a union, and that in several weeks a "straw vote" would be
conducted in order to ascertain whether the employees supported the
proposed committee or the union.
6. On February 23, 1978, an Employee Request for Bargaining Agent
Election for the unit composed of the supervisory officers in the
Police Department was filed with the Maine Labor Relations Board by
Local No. 48.
7. Several weeks after the February 15, 1978 meeting, the Captain who
was second-in-command of the Police Department, acting upon
instructions from the Chief of Police, individually asked each of the
employees who attended the February 15, 1978 meeting whether he or
she supported the proposed committee or union. If the employee
initially refused to respond definitively to the question, the
Captain persisted in questioning the employee on subsequent occasions
until each employee had provided a definitive answer.
8. After receiving an answer from each employee, the Captain formulated
a list indicating each employee's preference and submitted the list
to the Chief of Police, who subsequently communicated a tabulation
of the poll, but not the list indicating each employees' preference,
to the Mayor and the City Administrator.
DECISION
Complainant has charged that Respondents, acting through their repre-
sentatives and agents, have violated 26 M.R.S.A. 964(1)(A) and (C) by the
following actions:
(1) By suggesting that the employees form a committee to represent the
staff as an alternative to selecting a union;
(2) By suggesting that the employees form a committee dominated by
management officials as an alternative to selecting a union; and
(3) By polling the employees to determine whether they supported the
proposed committee or the union.
Respondents contend that neither the suggestion that a committee be
formed nor the subsequent polling of the employees to determine their
preference is a prohibited practice under 26 M.R.S.A. 964(1)(A) and (C).
As discussed below, we find that the polling of the employees violated
964(1)(A) of the Municipal
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Public Employees Labor Relations Act, and, having found a violation of the
Act, do not reach the questions whether the suggested formation of a committee
with management officials were violations of 964(1)(A) and (C).
Contrary to Respondents' arguments on brief, we believe that the
Struksnes criteria for determining when a poll of employees is lawful, set
forth by the National Labor Relations Board ("N.L.R.B.") in Struksnes
Construction Co., Inc., 165 N.L.R.B. 1062 (1967), should be applied in this
case. In Struksnes, the N.L.R.B. ruled that:
"Absent unusual circumstances, the polling of employees
by an employer will be violative of Section 8(a)(1) of
the Act unless the following safeguards are observed:
(1) the purpose of the poll is to determine the truth
of a union's claim of majority, (2) this purpose is com-
municated to the employees, (3) assurances against re-
prisal are given, (4) the employees are polled by secret
ballot, and (5) the employer has not engaged in unfair
labor practices or otherwise created a coercive atmosphere."
(165 N.L.R.B. at 1063)
We have decided to adopt the Struksnes criteria in our determinations
whether polls of public employees violate 26 M.R.S.A. 964(1)(A), which is
the Municipal Public Employees Labor Relations Act's counterpart to Section
8(a)(1) of the National Labor Relations Act (29 U.S.C.A. 158(a)(1)), because
we agree with the N.L.R.B. that "any attempt by an employer to ascertain
employee views and sympathies regarding unionism generally tends to cause
fear of reprisal in the mind of the employee if he replies in favor of
unionism . . . As we have pointed out, 'An employer cannot discriminate
against union adherents without first determining who they are are"' (footnote
omitted), Struksnes, supra, 165 N.L.R.B. at 1062.
We find that because the safeguards set forth in Struksnes were not
observed, the questioning of the employees as to whether they favored the
proposed committee or the union violated 26 M.R.S.A. 964(1)(A). First,
there is no evidence in the record that the purpose of the poll was to deter-
mine the truth of a union claim of majority. Indeed, when the Chief on
February l5th announced his intention to conduct the poll, Local No. 48 had
not yet claimed to represent a majority of the employees, its request for a
bargaining agent election, accompanied by authorization cards signed by a
majority of the members of the proposed supervisory officers' unit, not being
filed until February 23rd. Moreover, Respondents state on brief that the
purpose of the poll was to ascertain support for the proposed committee.
Inferentially, however, the poll also tested support for the Union. We find
that Respondents' purpose for conducting the poll is impermissible in light of
our belief that public employer polls concerning employee views on unionism
during an organizational campaign naturally instill in the minds of employees
fear of reprisal or discrimination based on the information obtained. The
only justifiable purpose for such a poll during an organizational campaign is
to determine the truth of a union claim of majority. Such a purpose is justi-
fiable, we believe, because of the importance of providing public employers
with a noncoercive method for verifying a union's majority status, when
conducted pursuant to the Struksnes guidelines.
Second, although the employees were told that the purpose of the poll
was to ascertain support for the proposed committee, this purpose is
impermissible, as
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discussed above. The criteria set forth in Struksnes is not satisfied simply
because a plausible purpose for the poll has been communicated to the
employees; the sole purpose of the poll must be to verify a labor organiza-
tion's claim of majority status.
Third, the employees were given no assurances against reprisal. The
Captain who conducted the poll testified at the hearing that he had to press
several employees before receiving responses by asking these employees on
several occasions whether they favored the proposed committee or the union.
One employee testified that he was told by the Captain that the Mayor would
see the employee's response favoring the union. It is therefore reasonable
to conclude that some of the employees may have feared that their responses
favoring the union might result in retaliation or discrimination against them
sometime in the future. The fact that there is no evidence of reprisal
against any employee due to his or her response to the poll does not mean that
the poll did not have a coercive effect. To ensure that any fears of reprisal
or retaliation are minimized, it is essential that the public employer give
unequivocal assurances against reprisals to the employees prior to the time
the poll is conducted.
Fourth, the poll was not conducted by secret ballot. Indeed, the Captain
formulated a list containing the name and response of each employee, and
provided the list to the Chief. Again, to minimize any fears of reprisal or
discrimination, it is essential that any poll to ascertain the truth of a
union's claim of majority status be conducted by secret ballot.
Finally, it does not appear that the poll was conducted in an atmosphere
free from coercion. There was an element of pressure and insistence to the
Captain's polling, shown when he persisted in questioning any employee who
did not respond when initially questioned. In addition, the Chief at the
February 15th meeting made clear his personal opinion that the union was a
"lousy outfit", and his "preference" that the employees not select the union.
Such assertions, we believe, resulted in injecting an element of coercion into
the situation. That the Chief stated to the employees that he was expressing
his "personal opinion" does not absolve Respondents from responsibility for
the impact of the Chief's statements. It would be unreasonable to attempt to
divorce the personal opinion of the public employer's representative from the
"official" position of the public employer when the representative is the head
of a department and the opinion is asserted while the representative is
performing one of the normal duties of the position. Consequently, we find
that Respondents are responsible for any statements made by the Chief while
on duty, regardless of the fact that the Chief prefaced his remarks by an
assertion that the remarks were his "personal opinion."
In light of our conclusion that the safeguards set forth in Struksnes
have not been observed, we accordingly find that Respondents interfered with,
restrained, or coerced the employees in the exercise of guaranteed rights, in
violation of 26 M.R.S.A. 964(1)(A). Although we entertain substantial doubt
as to lawfulness under 26 M.R.S.A. 964(1)(A) and (C) of Respondents'
proposal that a committee representing the employees be formed, see City of
Old Town v. Council 74, Local 1828 of the American Federation of State, County
& Municipal Employees, AFL-CIO, M.L.R.B. Case No. 75-25 (1976), we will merely
note that the proposal was not implemented, and will not decide whether the
proposal was unlawful. Having found that
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Respondents' poll violated 26 M.R.S.A. 964(1)(A), we order an appropriate
remedy.
ORDER
On the basis of the foregoing findings of fact and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board by the
provisions of 968(5) of the Municipal Public Employees Labor Relations Act,
it is hereby ORDERED:
1. That the City of Waterville and the Waterville Police
Department, and their representatives and agents, cease
and desist from engaging in any of the acts prohibited
by 26 M.R.S.A. 964(1), and especially from interfering
with, restraining or coercing its employees in the exercise
of rights guaranteed in 26 M.R.S.A. 963; and
2. That copies of the Notice attached to this Decision and Order
be signed and dated by a representative of the City of
Waterville and posted at all work locations of the Police
Department supervisory officers where notices are normally
posted for a period of 60 consecutive days from the date of
posting, to commence on or before August 1, 1978.
Dated at Augusta, Maine this 24th day of July, 1978.
MAINE LABOR RELATIONS BOARD
/s/_____________________________________
Donald W. Webber
Alternate Chairman
/s/_____________________________________
Michael Schoonjans
Employee Representative
/s/_____________________________________ Henry W. Mertens
Second Alternate Employer Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain or coerce our employees
in the exercise of their rights guaranteed in Section 963 of the Municipal
Public Employees Labor Relations Act.
City of Waterville
(Employer)
Dated ____________________________ BY_________________________________
(Name and Title)
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be al-
tered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with
its provisions, they may communicate directly with the Offices of the Maine
Labor Relations Board, State Office Building, Augusta, Maine 04333, Telephone
289-2016.
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