STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-19 and 79-11 _________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) STATE, COUNTY, MUNICIPAL AND ) UNIVERSITY WORKERS IN THE STATE ) OF MAINE, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) TOWN OF JAY, MAINE AND ITS ) BOARD OF SELECTMEN, ) ) Respondents. ) _________________________________) The Teamsters Local Union No. 48, State, County, Municipal and University Workers in the State of Maine ("Local 48") filed the prohibited practice complaint in this case on September 18, 1978. The Town of Jay, Maine and its Board of Selectmen ("Town" or "Selectmen") filed its response on October 4, 1978. A pre-hearing conference was held on October 4, 1978 with Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber subsequently issued a Pre-Hearing Conference Memorandum and Order on October 10, 1978, the contents of which are incorporated herein by reference. The matter was heard by the Maine Labor Relations Board ("Board") on November 30, 1978, Alternate Chairman Webber presiding, with Michael Schoonjans, Employee Representative, and Henry W. Mertens, Alternate Employer Representative. The complaint in Case No. 79-11 was withdrawn at the hearing. The parties filed post-hearing briefs and the Board proceeded to deliberate on the case. JURISDICTION No party has challenged the jurisdiction of the Board and we conclude that the Board has jurisdiction to hear and render a decision as provided in 26 M.R.S.A. 968(5). FINDINGS OF FACT From the entire record in this case, the contentions of the parties, and from the observation of the witnesses and their demeanor, the Board finds that: 1. Complainant Local 48 is the certified bargaining agent for a unit consisting of Town Public Works employees and was certified on December 29, 1977. 26 M.R.S.A. 962(2). Respondent Town is a public employer. 26 M.R.S.A. 962(7). -1- ______________________________________________________________________________ 2. At one time AFSCME was the bargaining agent, but it was decertified. Thereafter an entity calling itself "The Jay Highway Department Association" ("Association") ne- gotiated an agreement with the Town covering terms and conditions of employment. This agreement by its terms was "effective as of the 9th day of March, 1976 . . . until the 14th day of March, 1977." This agreement also included language concerning its automatic renewal. 3. The Town considered itself bound by this agreement at the time it discharged Richard Greenleaf. The Town also claimed that it followed the provisions of the agreement in the discharge. 4. Richard Greenleaf was hired by the Town in September, 1963, starting as a laborer/truck driver, serving later as a heavy equipment operator. Until the discharge on September 1, 1978, he had never been disciplined by so much as an oral warning for any reason. 5. Greenleaf had organized for AFSCME and was on its negotiation team. After the decertification, he was the spokesman and chief negotiator for the Association. He was the only signatory on the written agreement on behalf of the Association. There- after, when he became disenchanted with the ability of the Association to obtain sick leave benefits from the Town, he determined that he would organize a unit for Local 48 and told the Selectmen that this was his intention. In short, he was the most active employee in the unit and a leader in exercising rights protected by 26 M.R.S.A. 963. The Selectmen were keenly aware of this union activity. 6. Shortly after Local 48 was certified, Greenleaf called Richard R. Peluso, International Trustee for Local 48, to complain that he had been replaced in his heavy-equipment-operator duties and assigned to manual labor. The Local 48 steward also complained to Peluso about this action against Greenleaf. Peluso then com- plained to the Town attorney who informed Town Mananer Michael Houlihan who informed the Selectmen of the allegation. The conduct ceased. Greenleaf stated that this was not the first time this had happened. 7. On Friday, August 18, 1978, Greenleaf was informed that a company would be drilling a well near his trailer, as he had previously requested, on the following Monday. He had been without water for three weeks. In order to get water into his trailer, a thirty-foot trench to the drill site needed to be dug. Since the Town "back- hoe" is desiqned to dig such trenches, Greenleaf attempted to get permission to use the backhoe to do this job. Permission to use the backhoe had been granted to Town employees before. 8. Greenleaf was unsuccessful in his attempt to obtain permission to use the backhoe. He also did not pursue all possible contractors who possibly could have provided a backhoe on an emergency basis, perhaps because he could not expect to use such a backhoe at no cost. In any event, when he was unable to reach either Houlihan or Highway Foreman Hanscom by phone that evening - they were not home - and when his efforts to contact some local contractors proved unsuccessful, he nonetheless used the Town backhoe. 9. Greenleaf knew that it was not proper for him to use the equipment without permission. He also knew that at least one other Town employee had previously used the backhoe for personal benefit. Town Manager Houlihan testified that he, in fact, would have granted Greenleaf permission to use the backhoe had he but asked. Greenleaf's decision was complicated by the fact that another employee had told him that afternoon that he would bring the backhoe to Greenleaf's home the next Afternoon, Saturday, August 19, 1978, after he was done with it himself. -2- ______________________________________________________________________________ 10. The other employee removed the backhoe from its work location on Saturday morning, used it, and then delivered it to Greenleaf's home that afternoon. Greenleaf used the backhoe but the front wheel dropped into a hole causing the front spindle to break and rendering it inoperable. 11. Rather than return the backhoe to the unattended work location from which it had been taken, however, Greenleaf returned the back- hoe directly to the town garage on Sunday, Auqust 20, 1978, after fixing it so that it could be driven. There was no attempt by Greenleaf to hide the damage or his responsibility for it. On Monday morning, he immediately approached his supervisor, Highway Foreman Hanscom, to tell him what had happened. Hanscom said he would have to see Town Manager Houlihan and that he did not know what would happen. Greenleaf offered to pay for any repairs and requested a meeting with the Town Manager to explain his side of the story. Hanscom said that he would try. 12. Hanscom spoke to Houlihan that morning and told him what he knew, that Greenleaf had both offered to pay and that he had requested a meeting with Houlihan. Houlihan, however, never responded to Greenleaf's request. He also did not seek out Greenleaf to talk to him about the incident. Houlihan did consult with the Selectmen and then, on Friday, September 1, 1978, he told Greenleaf to either resign or be fired for the removal of town equipment, a term found in the existing agreement. At the hearing, Houlihan elaborated that the crux of the matter was the taking without permission. Greenleaf chose not to resign and tried to explain why he had needed the backhoe. However, Houlihan refused to even discuss the matter and said that Greenleaf was terminated. He apparently never learned of Greenleaf's explanation. 13. Houlihan had fired a Town employee five years earlier, but only after frequent personal discussions with the employee about the problem. In his 11 years as a Town Manager he had never fired someone without first talking with the employee, except for Greenleaf. 14. There was no history of problems with employees, townspeople, or Selectmen using town equipment without permission despite a rather widespread practice of permitting many items of town equipment to be used for personal benefit. In fact, auto repair equipment may be used on weekends at the town garage by town employees without prior permission. DECISION I. Local 48 contends that the Town violated 26 M.R.S.A. 964(1)(A),(B)&(C) by discharging Greenleaf because, although he wrongfully used the backhoe, he would not have been discharged but for his union activities. The Town counters that there was a sufficient basis for discharge and that Local 48 has not met the burden of establishing a prohibited practice. We conclude that Greenleaf was not discharged for cause. Although some measure of discipline was appropriate, it is clear that the discharge was based on his protected activity. Thus the Town has violated 26 M.R.S.A. 964(A)&(B). We therefore direct that Greenleaf be offered reinstatement. In general, an act will violate 26 M.R.S.A. 964(1)(A) or (B) if simply one of the motivating factors for the act was an unlawful one. Teamsters Local 48 v. City of Augusta, MLRB No. 78-04 (1978). The same standard applies to a -3- ______________________________________________________________________________ discharge. See Freeport P.B.A. v. Town of Freeport, PELRB No. 74-18 (1974), aff'd sub nom. Campbell v. Town of Freeport, No. C-75-621, Kennebec Super. Ct., Sept. 2, 1976; Accord, N.L.R.B. v. Princeton Inn Co., 424 F.2d 264, 265 (3d Cir. 1970). In Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 (1978), we upheld a discharge where it was based "solely" on lawful factors. Here, however, we conclude that the Town would not have discharged Greenleaf but for his protected activity. We find this improper motive by inference from the failure to investigate the incident at all, from the failure to "thoroughly" investigate as required by the agreement, from the refusal of the Town Manager to give Greenleaf an opportunity to explain himself, from the unexplained change in disciplinary procedures used in the past, from the determination that discharge was the "only way to maintain discipline," and from the sheer unlikelihood that an employee with fifteen years of discipline- free service would be discharged under these circumstances and in this manner had he not been the foremost union activist in the unit. The agreement required a "thorough investigation." (Jt. Exhibit "A" at 5) There was none. Houlihan, and presumably the Selectmen, only knew that the back-hoe was used without permission and damaged by Greenleaf. They did not know why Greenleaf had used it. They did not know what efforts he had made to obtain permission. They did not know that he had never used town equipment without permission before in fifteen years. It is even questionable whether the Selectmen were told that Greenleaf had offered to pay for the damage. There was, in fact, no investigation at all. This creates a strong inference of improper motive. See NLRB v. Quick Shop Markets, Inc., 416 F.2d 601, 605 (7th Cir. 1969). The agreement also required that discharge not be utilized as a form of discipline unless "the Town Manager is convinced dismissal is the only method by which discipline can be maintained." (Jt. Exhibit "A" at 5) (Emphasis added) Given the complete lack of investigation, including the failure to speak to Greenleaf himself, given that there had been no preexisting problem of unauthorized use of town equipment that needed to be deterred, given that Greenleaf offered restitution, and given that he had a perfect conduct record over fifteen years, it is unbelievable that the decision to discharge could have been reached based on a permissible motive. Moreover, Houlihan went beyond simply not investigating and not speaking to Greenleaf (a change from his prior practice), he actually refused to listen to Greenleaf at the time of the firing and never responded to Greenleaf's previous request to be heard. In short, we simply do not believe the testimony that the motives were pure and we find, in that very testimony, to the contrary. Consequently we conclude that the Town has violated 26 M.R.S.A. 964(1)(A)&(B) by discharging Richard Greenleaf. We order an appropriate remedy. ORDER On the basis of the foregoing and pursuant to 968 of the Municipal Public Employees Labor Relations Act, it is hereby ORDERED that the Town of Jay, its -4- ______________________________________________________________________________ Selectmen, its Town Manager, and other representatives and agents: 1. Cease and desist from: (a) interfering with, restraining or coercing employees in the exercise of rights guaranteed in Section 963 of the Act; (b) discouraging membership in Teamsters Local Union No. 48, State, County, Municipal and University Workers in the State of Maine, by discriminating in regard to hire or tenure of employment or any term or condition of employment; and particularly (c) discharging employees because of the exercise of their rights protected under the Act. 2. Offer Richard Greenleaf immediate and full reinstatement without back pay to his former position, or if that position no longer exists, to a substantially equivalent one, without prejudice to seniority or other rights or privileges, including vacation, which shall accrue as if service had been continuous. Dated at Augusta, Maine this 27th day of February, 1979. MAINE LABOR RELATIONS BOARD /s/____________________________________ Donald W. Webber Alternate Chairman /s/____________________________________ Michael Schoonjans Employee Representative /s/____________________________________ Henry W. Mertens Alternate Employer Representative -5- ______________________________________________________________________________