STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 78-30
______________________________
)
TEAMSTERS LOCAL UNION NO. 48. )
STATE, COUNTY AND MUNICIPAL )
WORKERS, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF OAKLAND, )
)
Respondent. )
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This case comes to the Maine Labor Relations Board ("Board") by way of a
prohibited practice complaint filed March 29, 1978 by Steven J. Cullen,
Organizer, Teamsters Local Union No. 48. The Town of Oakland's answer to the
complaint was dated April 11, 1978, and filed April 14, 1978 by Eric S.
Meserve, Town Manager. A pre-hearing conference on the matter was held on
May 9, 1978, with Alternate Chairman Donald W. Webber presiding. As a result
of this pre-hearing conference, Alternate Chairman Webber issued on May 15,
1978 a Pre-Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
The matter was heard by the Board on June 13, 1978, Alternate Chairman
Donald W. Webber presiding, with Michael Schoonjans, Employee Representative,
and Kenneth T. Winters, Alternate Employer Representative. All briefs on the
legal questions raised by the case were filed by July 18. 1978, and the Board
proceeded to deliberate on the case on August 2, 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. Sec. 968(5).
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the
pleadings and the Pre-Hearing Conference Memorandum and Order, the Board finds
that:
1. Complainant Teamsters Local Union No. 48 ("Local No. 4",) is the
certified bargaining agent for a unit of public employees employed
in the Town of Oakland's Public Works Department. At all times
material herein, Local No. 48 was engaged in attempting to organize
said employees with the aim of becoming the collective bargaining
agent for the employees.
2. Respondent Town of Oakland, Maine ("Town"), is a public employer as
defined by 26 M.R.S.A. Sec. 962(7), with Eric S. Meserve as Town
Manager and with an address of Cascade Mill Road, Oakland, Maine
04962.
3. At all times material herein, the Town Manager of Oakland and the
Road Foremen of the Oakland Public Works Department were aware that
Public Works Department employees were engaged in organizational
activities.
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4. On or about January 23, 1978, the Public Works Department's
Road Foreman told Public Works Department employees that the
Town would no longer pay for the employees' breakfast meals
after the employees had worked throughout the previous night.
The Town's practice of paying for the breakfast meals of
Public Works Department employees who worked the previous
night had been in existence for two winters, and the Town paid
for breakfast meals on approximately 8 occasions within the
past year.
5. On or about February 10, 1978, the Road Foreman instructed a
Public Works Department employee that the employee was not to
use a Town vehicle to travel to another job site to pick up
employee Paul Quirion for a trip into town for a fifteen-minute
coffee break. Subsequent to February 10, 1978, Public Works
Department employees were permitted to use Town vehicles to
travel directly to Town from a job site for coffee breaks.
6. On or about February 17, 1978, the Road Foreman ordered employee
Quirion to "clean the Town Office and keep the women happy."
Quirion protested the job assignment but nonetheless cleaned the
office.
7. On or about February 21, 1978 the Road Foreman again instructed
Quirion to "clean the Town Office and keep the women happy."
Quirion refused to perform the assignment, and was ordered by the
Road Foreman to clean the Town Garage instead. The employee obeyed
the second order.
8. On February 23, 1978, upon return from a vacation, the Town Manager
called Quirion into the Town Manager's office and read a letter which
stated, "You have been assigned work and have refused to do that
work. You are being assigned that work again and should you refuse
to do that work, you shall be dismissed immediately without notice."
The employee then left the office, stating "I guess there ain't
nothing more to talk about, is there?"
9. By letter dated February 23, 1978 to Paul Quirion, the Town Manager
stated in pertinent part that "you are hereby dismissed effective
February 23, 1978, 9:00 a.m. for refusing twice to do work assigned."
DECISION
Complainant has charged that Respondent, through its representatives and
agents, violated 26 M.R.S.A. Sec. 964(1)(A) and (B) by the following actions:
(1) By eliminating certain employee fringe benefits subsequent to
commencement of the organizational campaign, and
(2) By discharging employee Paul Quirion for engaging in activity
which Is protected by the Municipal Public Employees Labor
Relations Act ("Act").
Respondent contends that there has been no change in Town policy regarding the
use of Town vehicles for taking coffee breaks; that the policy of reimbursing
employees who had worked throughout the previous night was discontinued
because of lack of funds; and that the discharge of employee Quirion was for
cause and was not related to the employee's participation in protected
activity under the Act. For the reasons discussed below, we find that the
employer's elimination of the policy of paying for the employees' breakfasts
constitutes a violation of 26 M.R.S.A. Sec, 964(1)(A) and (B), but that the
alleged change In the policy regarding use of Town vehicles for coffee breaks
and the discharge of employee Quirion did not result in violations of the Act.
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1. The Allegation Concerning the Elimination of Certain Fringe
Benefits. Complainant argues that Respondent violated Section 964(1)(A) and
(B) of the Act by eliminating, after the organizational campaign commenced,
the practices of paying for the employees' breakfasts when the employees had
worked the previous night and of allowing Town vehicles to be used to take
coffee breaks. Section 964(1)(A) provides that public employers and their
representatives and agents are prohibited from interfering with, restraining
or coercing employees in the exercise of rights in Section 963. Section 963
of the Act in part grants public employees the rights to join, form and parti-
cipate voluntarily in the activities of organizations of their own choosing
for the purposes of representation and collective bargaining. Section 964(1)
(B) states in pertinent part that public employers are prohibited from dis-
couraging membership in any employee organization by discrimination in regard
to any term or condition of employment.
We believe that once an organizational campaign has commenced, the public
employer must exercise extreme caution in changing long-standing policies and
practices which affect the terms and conditions of employment of those
employees engaging in organizational activities. Any changes in long-standing
practices during an organizational campaign Immediately raise an inference
that the changes are intended to interfere with, restrain or coerce the
employees in the exercise of their rights, and to discourage membership in
any employee organization participating in the campaign. Proof of an unlawful
motive on behalf of the public employer is not a critical element in the
finding of a Section 964(1)(A) violation. As the National Labor Relations
Board stated in Cooper Thermometer Co., 154 N.L.R.B. 502, 503, n.2 (1965):
". . . interference, restraint, and coercion . . . does not
turn on the employer's motive or on whether the coercion
succeeded or failed. The test is whether the employer en-
gaged in conduct which, it may reasonably be said, tends
to interfere with the free exercise of employee rights
under the Act."
Similarly, a specific, unlawful purpose need not be proved in certain types of
cases in order to establish a violation of Section 964(1)(B). In NLRB v.
Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), the United States Supreme
Court held that:
"First, if it can reasonably be concluded that the employer's
discriminatory conduct was 'inherently destructive' of impor-
tant employee rights, no proof of an anti-union motivation is
needed and the Board can find an unfair labor practice even if
the employer introduces evidence that the conduct was motivated
by business considerations. Second, if the adverse effect of
the discriminatory conduct on employee rights is 'comparatively
slight,' an anti-union motivation must be proved to sustain the
charge if the employer has come forward with evidence of legiti-
mate and substantial business justifications for the conduct.
Thus, in either situation, once it has been proved that the em-
ployer engaged in discriminatory conduct which could have adversely
affected employee rights to some extent, the burden is on the
employer to establish that he was motivated by legitimate objectives
since proof of motivation Is most accessible to him." (emphasis in
original)
In short, in cases involving Section 964(1)(A) and in cases involving
inherently destructive discriminatory conduct under Section 964(1)(B), the
Maine Labor Relations Board may, even in the absence of an affirmative showing
of unlawful motivation,
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find violations of the Act by weighing the evidence, crediting and discredit-
ing testimony, and drawing inferences regarding the public employer's intent,
see Teamsters Local Union No. 48 v. City of Augusta, Board of Education,
M.L.R.B. Case No. 78-04 (1978); Teamsters Local Union No. 48 v. Town of
Oakland, M.L.R.B. Case No. 78-22 (1978).
Turning first to the allegation concerning discontinuance of the policy
of paying for employee breakfasts when the employees worked throughout the
previous night, we note that this practice had been in existence for two
winters. The Town Manager testified at the hearing that he had instituted the
policy on his own initiative, and that the Town had paid for employee break-
fasts on approximately eight occasions within the past year. The Town argues
that the only reason the policy was discontinued was that the Town Manager no
longer had sufficient funds available, due to a cut in the Town Manager's
budget by the Town Council. One employee testified that he thought the Town
discontinued the policy of paying for breakfasts in order to discourage the
men from joining the union.
We find that the Town's discontinuance of the policy of paying for
employees' breakfasts after the employees worked throughout the previous night
violated 26 M.R.S.A. Sec. 964(1)(A). This policy had become a long-standing
practice, we believe, having existed for two winters and having been imple-
mented approximately eight times within the past year. Elimination of the
practice of paying for breakfasts may reasonably be said to have resulted in
interference with employee participation in the organizational drive, inasmuch
as such elimination may have been reasonably interpreted by the employees as a
form of retaliation against them for their participation in organizational
activities.
We also find that elimination of the practice of paying for breakfasts
resulted in a violation of 26 M.R.S.A. 964(1)(B). Discontinuance of the
practice after organizational activities had commenced appears to us to be
discriminatory conduct in regard to a condition of employment, based upon
initiation of the organizational campaign. In our opinion, this discrimina-
tory conduct was inherently destructive of important employee rights to join,
form and participate in the activities of organizations of their own choosing.
The Town officials should have foreseen that discontinuance of the practice
would have the unavoidable consequence of suggesting to the employees that
their organizational activities were not viewed with favor by the Town
management. We consequently find a violation of 964(1)(B) even though the
Town introduced evidence at the hearing that the practice was discontinued due
to a cut in the Town Manager's budget. In light of our findings of violations
of Sections 964(1)(A) and (B), we will order an appropriate remedy.
As for the allegation that the Town unlawfully eliminated the practice of
permitting employees to drive Town vehicles from the job sites to the coffee
break area, we find that Complainant has failed to prove that the alleged
elimination of the practice did in fact occur. Complainant alleges in Para-
graph 5.a. of its Complaint that Respondent told the employees that they would
no longer be allowed to take a coffee break in the Town Garage, and argues
in its Brief that the Road Foreman eliminated the practice of permitting
employees to drive Town vehicles from work sites to the
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break area. Testimony by the employees at the hearing establishes, however,
that the Respondent did not discontinue the policy of allowing coffee breaks
or the policy of permitting the employees to use Town vehicles to drive to the
break area. On one occasion, an employee was In effect ordered by the Road
Foreman not to drive a Town vehicle from the employee's job site to employee
Quirion's job site to pick up Quirion, take him to the coffee break area,
deliver Quirion back to Quirion's job site after the break, and then return to
the employee's job site. Because the time period allotted for coffee breaks
amounts to only fifteen minutes, we do not find the Road Foreman's order
unreasonable or malicious.
Testimony at the hearing also shows that two employees who were active in
the organizational campaign discontinued using Town vehicles to go on coffee
breaks for a period of several months after one of the employees was ordered
not to pick up the employee at another job site. It appears, however, that
this action by the employees was voluntary, and was not a result of being
ordered by a Town representative to stop using Town vehicles to go directly to
the coffee break area. In the absence of any evidence that either the prac-
tice of taking coffee breaks in the Town Garage or the practice of permitting
employees to drive Town vehicles directly from the job site to the break area
was eliminated, we cannot, in light of Complainant's pleadings, find that
violations of 26 M.R.S.A. 964(1)(A) or (B) have occurred. Accordingly,
Paragraph 5.a. of the Complaint is DISMISSED.
2. The Allegation Concerning the Discharge of an Employee. The Maine
Labor Relations Board considers the discharge of an employee during an organi-
zational drive as a very serious matter. Such an action creates a substantial
inference that the discharge was designed to interfere with, coerce or intimi-
date employees in the exercise of their rights guaranteed in 26 M.R.S.A.
963, as well as to discourage membership In the employee organization by
discrimination in regard to tenure of employment. A discharge during an
organizational campaign may well be the most blatant and vicious method
available for intimidating employees in the exercise of their rights under the
Act.
However, the Board does not treat a discharge during an organizational
drive as a per se violation of 26 M.R.S.A. 964(1)(A) and (B). Section 968
(5)(C) of the Act provides in pertinent part that "No order of the board shall
require the reinstatement of any individual as an employee who has been
suspended or discharged . . . if such individual was suspended or discharged
for cause." Consequently, although the discharge may reasonably be said to
interfere with the free exercise of employee rights under the Act, or may be
found to be inherently destructive of important employee rights, the discharge
will not violate 26 M.R.S.A. 964(1)(A) or (B) if based upon cause, see
Larry N. Trafton v. Board of Trustees for Gardiner Water District, M.L.R.B.
Case No. 74-10 (1974); Freeport Police Benefit Ass'n v. Town of Freeport,
M.L.R.B. Case No. 74-18 (1974).
Complainant has attempted to show a pattern of anti-union activity by
Respondent in order to establish that the discharge of Quirion was not for
cause but was instead based upon Quirion's participation in protected activity.
Careful review of the record and the pleadings in this case convinces us,
however, that the discharge was
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based solely upon Quirion's insubordination in refusing to perform job assign-
ments on two occasions. Such insubordination constitutes cause for the dis-
charge, we believe.
Testimony at the hearing shows that employees of the Public Works Depart-
ment were assigned the job of cleaning the Town Office after the Town's
janitor suffered a heart attack. At the time of the hearing, three employees,
including Quirion, had performed the task. One of these employees, who was
active in the organizational drive, had prior to commencement of the drive
requested that he not be required to clean the Office while females employed
in the Office were present. The employee explained to the Town Manager that
the employee's wife was jealous, and might want a divorce if the employee
continued working in the office while the women were present. Arrangements
were made for the employee to complete the janitorial duties during non-office
hours when the female employees were not present.
On or about February 17, 1978, employee Quirion was instructed by the
Road Foreman to "clean the office and keep the women happy." Quirion pro-
tested the assignment, but completed the task. On or about February 21, 1978,
Quirion refused to obey an order to "clean the office and keep the women
happy," but did comply with an order to clean the Town Garage. Finally, on
February 23, 1978, Quirion was told by the Town Manager that Quirion was being
assigned the task again, and, if he refused to perform the job, he would be
dismissed immediately. In response, Quirion walked out of the Town Manager's
office, indicating that there was nothing more to talk about. The Town
Manager then prepared a letter terminating Quirion's employment.
Complainant argues on brief that Respondent's anti-union animus is
revealed by the fact that Respondent handled similar cases differently, i.e.,
before the organizational campaign commenced, Respondent arranged for an
employee to clean the office while the female employees were absent, while
after commencement of the campaign Respondent did not attempt similarly to
accommodate Quirion. We do not believe, however, that sufficient anti-union
motivation has been shown to rebut the fact that Quirion twice refused to
perform job assignments. Our belief is based upon several considerations.
First, it is not at all clear from the record that either the Town
Manager or the Road Foreman were aware at the times when Quirion refused to
perform the assignments that Quirion objected to the assignments because he
feared potential marital problems. If neither were aware of such objection,
then it is obvious that they cannot be said to have evinced anti-union animus
when they did not offer Quirion the opportunity to clean the Town Office when
the women were absent. Quirion himself testified that he did not inform
either the Road Foreman or the Town Manager that he too faced marital problems
if required to work in the presence of the women employed in the Town Office.
On the other hand, there are indications in the record that the Town officials
were aware of Quirion's objection. In view of the fact that the record is
inconclusive on the point, we cannot find with absolute certainty that the
Road Foreman and Town Manager were aware of Quirion's objection.
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Second, testimony by witnesses sponsored by Complainant undermines
Complainant's contention that fear of marital problems was the reason why
Quirion refused to perform the job assignments. Quirion, a truck driver and
heavy equipment operator, testified that the "biggest reason" why he refused
to clean the Town Office was that he felt that such a task was not a man's
work, and that performance of the task in the presence of women would be
demeaning. Quirion's testimony on this point was substantiated by the
testimony of another of Complainant's witnesses, who testified in response to
a question by the Alternate Chairman that he believed that the reason Quirion
refused to clean the office was that Quirion considered such work to be
janitorial work.
We consequently cannot agree that Respondent has been shown to have
discriminated by handling similar situations differently. We conclude that
the inference of unlawful motivation created by the various events which
Complainant cites on brief does not rebut the fact that Quirion was
insubordinate in refusing to perform assigned duties on or about February 21
and on February 23, 1978. Since the insubordination was cause for dismissal,
the discharge did not violate 26 M.R.S.A. 964(1)(A) or (B). Paragraph 4 of
the Complaint is DISMISSED.
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 Section
968 of the Municipal Public Employees Labor Relations Act, it is hereby
ORDERED:
1. That the Town of Oakland, and its 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 employees in the exercise of rights
guaranteed in 26 M.R.S.A. 963 and from discouraging membership
in any employee organization by discrimination in regard to any
term or condition of employment;
2. That the Town of Oakland reinstitute immediately the practice of
paying for the breakfast meals for employees who have worked
throughout the previous night. Such practice is to remain in
effect until such time as the practice is governed by a collective
bargaining agreement between the Town of Oakland and the collective
bargaining agent for the Oakland Public Works Department employees.
Dated at Augusta, Maine, this 24th day of August, 1978.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Donald W. Webber
Alternate Chairman
/s/____________________________________
Michael Schoonjans
Employee Representative
/s/____________________________________
Kenneth T. Winters
Alternate Employer Representative
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