STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No.79-41
_________________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY WORKERS, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
CITY OF AUBURN )
)
and )
)
CITY MANAGER CHARLES A. MORRISON,)
)
Respondents. )
_________________________________)
On December 4, 1978, Teamsters Local Union No. 48 ("Local 48") filed a
prohibited practice complaint against the City of Auburn and its City Manaqer
("City"). Local 48 filed an amended complaint on December 27, 1978. The City
filed its answer to the complaints on December 26, 1978.
A pre-hearing conference on the case was held January 30, 1979, Chairman
Edward H. Keith presiding. As a result of this pre-hearing conference,
Chairman Keith issued on February 3, 1979 a Pre-hearing Conference Memorandum
and Order, the contents of which are incorporated herein by reference.
A hearing on the case was held May 9, 1979, Chairman Keith presiding,
with Employee Representative Michael Schoonjans and Alternate Employer
Representative Kenneth T. Winters. Briefs arguinq the issues raised by the
case were filed by June 11, 1979, and the Board proceeded to deliberate over
and decide the case at a conference held August 2, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor
Relations Board in this case, and we conclude that the Board has jurisdiction
to hear and render a decision in the case as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Complainant Local 48 is a public employee oroanization within
the meaning of 26 M.R.S.A. 968(5)(B), and was on July 20,
1978 certified as the bargaining agent for a bargaining unit
of Highway Department employees employed by the City of Auburn.
Respondents City of Auburn and City Manager Charles A. Morrison
are public employers within the meaning of 26 M.R.S.A. 968
(5)(B).
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2. In July, 1977, Richard Maxwell was hired by the City for a
Heavy Equipment Mechanic position in the Highway Department
garage. Prior to being hired, Maxwell had three interviews
with various City officials. The topic of overtime work was
not discussed during any of these interviews. The job an-
nouncement to which Maxwell responded did not state that
overtime would be required.
3. In June, 1977, Maxwell received a physical examination, which
served as his pre-employment physical for the City, from
Dr. Alan Rogers. Dr. Rogers found that Maxwell was in good
health, although Maxwell's blood pressure was slightly high.
The only time that Maxwell had experienced problems with his
blood pressure was on one occasion in 1973. Maxwell attributed
this experience with high blood pressure to a high level of gas
vapor in a garage in which Maxwell was working.
4. Maxwell worked overtime during five of the weeks in the time
span from July to November, 1977. His maximum amount of over-
time worked during any one of these weeks was 1-3/4 hours.
5. On November 28, 1977, Maxwell's foreman attempted during the
night to phone Maxwell to request that Maxwell report for work
during a snowstorm. The foreman could not contact anyone at the
number which Maxwell had provided. Maxwell did not have a
telephone in his home, but had provided his parents' phone
number. Maxwell and his parents lived in the same house,
occupying separate portions of the building. The parents did
not answer the phone the night that Maxwell's supervisor
attempted to reach him.
6. Upon arriving for work on November 29, 1977, Maxwell was
informed of the efforts to reach him the previous night.
Maxwell told the assistant foreman, Willard Levesque, that he
could not work overtime on a regular basis because he had to
care for his elderly parents. Maxwell stated, however, that he
would work overtime in emergency situations. Levesque then told
the shop foreman, Harold Wilkinson, that Maxwell could not work
overtime. Wilkinson took no action to force Maxwell to comply
with the Highway Departnent's overtime requirements.
7. Maxwell worked overtime every week during the period from
December 5, 1977 through January 27, 1978, with the amount of
overtime worked per week ranging from 45 minutes to 11 hours.
Maxwell worked some Saturdays during this period, and refused to
work other Saturdays. The City did not object when Maxwell did
not work on Saturdays.
8. In late January, 1978, Maxwell began feeling ill, and reported to
Dr. Rogers for a checkup. The Doctor diagnosed Maxwell's illness
as hypertension, and provided Maxwell with a doctor's slip
stating that Maxwell should keep his overtime down. Maxwell
presented this slip to Wilkinson. Wilkinson and Roland Saucier,
the Superintendent of the Highway Department, subsequently told
Maxwell that if he got a Class II Inspection License, everything
would be O.K. Maxwell got the License, and from January 30,
1978 through December 1, 1978 worked overtime during three weeks.
9. In April, 1978, Local 48 commenced an organizational drive among
the City's Highway Department employees. Maxwell was a leader
in this drive, attending this Board's unit determination hearing
on the Highway Department bargaining unit on June 8, 1978, and
assuming the role of acting shop steward one week prior to the
July 20, 1978 bargaining agent election. After the election,
Maxwell initiated at least one grievance on behalf of a
bargaining unit member. Maxwell was elected to Local 48's
bargaining committee, and negotiations commenced in October,
1978. Maxwell attended all bargaining sessions.
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10. At one of the bargaining sessions in the fall of 1978, the
parties discussed Local 48's proposed maintenance of standards
provision. Among the practices which Local 48 proposed to con-
tinue was that of permitting Highway Department employees to
use small tools in the Highway Department garage for repairs on
the employees' personal vehicles. Upon learning of the exist-
ence of this practice, the City issued an order forbidding
employees to use City tools for personal repairs. This order
was rescinded a short time after its issuance, and the practice
or allowing employees to use City tools was reinstated.
11. On November 3, 1978, Maxwell was awarded a merit raise retro-
active to April, 1978. During October and November, 1978,
Maxwell worked overtime during one week.
12. On November 27, 1978, Maxwell was called to a meeting attended
by Wilkinson, Saucier, and Leo Larochelle, the Director of
Public Works. Larochelle tendered a letter to Maxwell which
stated that Maxwell would have to work Saturday, December 2,
1978, or be dismissed. Maxwell protested that he had to care
for his father on Saturdays, and stated that it would be very
difficult for him to work on Saturday.
13. Maxwell then went to City Manager Charles Morrison in an effort
to be excused from overtime work on Saturdays. Morrison stated
that Maxwell would have to work Saturdays, informing Maxwell
that the City did not like Maxwell "mouthing off" about unfair
labor practices and stating, in apparent reference to Local 48's
International Trustee, that "no S.O.B. from Pennsylvania is
going to tell me how to run this Town."
14. Maxwell worked as required on Saturday, December 2. 1978. On
Tuesday, December 5, 1978, Maxwell felt ill and went to Dr.
Rogers. The Doctor found that Maxwell's blood pressure was very
high, and prescribed medication. The Doctor also provided
Maxwell with another doctor's slip stating that Maxwell should
keep his overtime down. Maxwell again tendered the doctor's
slip to his foreman.
15. Maxwell did not report for overtime work on Saturday, December 9,
1978. When Maxwell reported for work on Monday, December 11,
1978, he was fired by Saucier for failing to work overtime.
Saucier's action was upheld by Larochelle in a letter dated
December 14, 1978 to Maxwell.
16. On December 14, 1978, Maxwell took Larochelle's letter to
Morrison, explained the situation, and asked for reinstatement.
Morrison refused to order reinstatement, asserting that Maxwell
had pushed the union down peoples' throats and had upset the
foremen by talking about unfair labor practices. Morrison in a
letter to Maxwell dated December 22, 1978 concluded that the
dismissal was justified for several reasons.
17. Maxwell then appealed his discharge pursuant to the provisions
of the City's Administrative Manual to the Public Works Director,
to the City Manager, and ultimately to the City's Civil Service
Commission. By letter dated January 28, 1979, the Civil Service
Commission concluded that Maxwell was discharged because of his
failure to work overtime as well as his stronq personal commit-
ment to Local 48, and ordered that Maxwell be reinstated to his
position without back pay. The Civil Service Commission stated
in the letter that "inconsistencies appear regarding the treat-
ment of overtime," and that "the City did not enforce the over-
time requirement until such time [as] it was to its advantage in
bringing about the release of Maxwell."
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18. Both Local 48 and the City requested that the Civil Service
Commission clarify its January 28, 1979 decision as to the
reasons why the Commission did not order that Maxwell receive
back pay. By letter dated January 31, 1979, the Civil Service
Commission stated that Maxwell was not entitled to back pay
because of his failure to comply with the overtime requirement.
Maxwell was subsequently reinstated by the City in accordance
with the Civil Service Commission ruling.
19. The City then requested the Board to defer to the Civil Service
Commission's rulings on the ground that Maxwell had made an
election of remedies by pursuing his case before the Civil
Service Commission. After receiving briefs on the deferral
issue, the Board in a letter to the parties dated April 12, 1979
provided that it would defer to the Civil Service Commission's
ruling that Maxwell was discharged for failure to work overtime
and for his union activities. The Board provided that it would
not defer to the Civil Service Commission's order that Maxwell
be reinstated without back pay, however, since the Civil Service
Commission "apparently did not fully consider whether the City
unilaterally changed Maxwell's working conditions by requiring
him to work overtime," as alleged in Local 48's complaint
initiating this action. The Board accordingly stated that the
parties should present evidence reqarding the allegation that
the assiqnment of overtime work to Maxwell constituted a
violation of the Act.
DECISION
Local 48 charges that the City violated 26 M.R.S.A. 964(l)(A) and (B)
by changing the overtime requirement applicable to Maxwell, and by temporarily
discontinuing the practice of allowing employees to use the City's small tools
for repairs on personal vehicles.[fn]1 The City urges that there have been no
changes in Maxwell's working conditions, and concedes that discontinuance of
the practice of allowing employees use of the small tools resulted in a
violation of the statute.
As discussed more fully below, we conclude that the City impermissibly
commenced enforcing its overtime rule as regards Maxwell due to Maxwell's
union activity. We will order that Maxwell receive back pay for the time
during which he was discharged, as well as other remedies necessary to
effectuate the policies of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. 961, et seq. ("Act").
I. Substantive Issues
We have held in many cases that "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."
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1 Local 48 also alleged in its complaint that the City violated Section 964
(1)(A) and (B) by changing the employees' lunch conditions and by installing a
time clock for the surveillance of mechanics. These allegations are not
supported by the record and are not pursued by Local 48 in its brief. We
consequently will treat these allegations as being withdrawn by Local 48.
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Teamsters Local 48 v. Town of Jay, M.L.R.B. Nos. 79-11 and 79-19 at 3 (1979)
(emphasis in original). We determine whether a particular act was motivated
in part by an unlawful purpose by carefully examining the entire record and
drawing inferences from the facts contained in the record. An inference of
unlawful purpose does not constitute a per se violation of Section 964(1)(A)
or (B), and may be rebutted by evidence showing that the act in question was
motivated solely by legitimate considerations. See, e.g., Teamsters Local 48
v. Town of Fairfield, M.L.R.B. No. 79-01 (1979); Teamsters Local 48 v. Town of
Oakland, M.L.R.B. No. 78-30 (1978).
Having careftlly examined the record, we must conclude that one of the
reasons why the City required Maxwell to comply with the overtime rule in
November and December, 1978 was that Maxwell had become a union activist.
Our conclusion is based on the following facts:
Prior to the advent of the union's organizational campaign, the City
accommodated Maxwell's desire to work a reduced overtime schedule. The
question whether Maxwell was to work overtime was raised on November 29, 1977,
when Maxwell informed his foreman that he could not work overtime regularly
because he had to care for his elderly parents, and in early February, 1978,
when Maxwell presented his foreman with a doctor's slip stating that Maxwell
should keep his overtime work down. On both occasions, according to the
testimony of the City's foremen, the City was able to "work around" Maxwell's
wish to avoid a substantial amount of overtime. During this period Maxwell
was not threatened with discharge or any other disciplinary action for failing
to work overtime.
The City's accommodation of Maxwell's wishes regarding overtime changed
radically once the union was certified as the employees' bargaining agent and
once it became clear that Maxwell was a union leader. On November 27, 1978,
Maxwell was informed in writing that he would have to work on Saturday,
December 2, 1978, or be dismissed. When Maxwell protested that he had to care
for his father on Saturdays, and, during the following week, provided a
doctor's slip stating that he should keep his overtime down, the City made no
efforts to "work around" or accommodate Maxwell's problems. These same
problems had during the previous year been sufficient for the City to
accommodate Maxwell's wish to work a reduced overtime schedule.
During the interim between the winter of 1977-78 and the winter of
1978-79, Local 48 was certified as the Highway employees' bargainings agent,
and Maxwell had served as a leader in the organizational campaign, as the
acting shop steward, and as a member of the union's bargaining committee.
Indeed, the only material changes which occurred between the winters of
1977-78 and 1978-79 were that Local 48 was certified as the employees'
bargaining aqent and Maxwell had become deeply involved in union activities.
The facts recited above plainly permit the inference that one of the
reasons why the City commenced enforcing its overtime rule as regards Maxwell
was that the City was displeased with Maxwell's union activities. The right
to participate freely
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in union activities is guaranteed in 26 M.R.S.A. 963. Enforcing a work rule
because employees are engaging in union activities constitutes unlawful
interference and discrimination under 26 M.R.S.A. 964(1)(A) and (B). See,
e.g. Teamsters Local 48 v. University of Maine, Case Nos. 78-16 and 78-20 at
11-12 (1979).
The inference that the City began enforcing its overtime requirement
because of Maxwell's union involvement is supported by other facts in the
record. First, the City's Civil Service Commission found that one of the
reasons why Maxwell was discharged was due to his strong personal commitment
to Local 48. Neither party contended before us that the Civil Service
Commission proceeding regarding the reasons for Maxwell's dismissal was not
fair and regular, and we accepted the Civil Service Commission's finding as
to the reasons for the discharge in our April 12, 1979 letter. The fact that
Maxwell's union commitment was one of the reasons why Maxwell was discharged
lends weight to the inference that the City also began enforcing the overtime
requirement as regards Maxwell because of his union involvement.
Second, the record contains additional evidence that the City acted
unlawfully in response to the union activities of its employees. After City
negotiators learned during negotiations of the long-standing practice of
employees using small tools for repairs on personal vehicles, the City
temporarily terminated this practice. Discontinuance of a practice or policy
effecting working conditions in response to union activities constitutes a
violation of Section 964(1)(A) and (B) of the Act. See, e.g. Teamsters Local
48 v. Town of Oakland, supra. The fact that the City discontinued the
practice of allowing the use of small tools suggests that the City was not
adverse to taking unlawful action based on its employees' union activities.
Finally, the City Manager's anti-union statements to Maxwell in late
November, 1978 and on December 14, 1978 strongly suggest that the City was
displeased with Maxwell's union activities and that the City was enforcing
the overtime requirement as a result of these protected activities. As pre-
viously noted, it is unlawful for an employer to take action against an
employee which can result in discipline or discharge when the action is
motivated by the employee's union activities.
For all of the foregoing reasons, we conclude that one of the reasons
why the City began enforcing its overtime requirement as regards Maxwell in
November and December, 1978, was that the City disliked Maxwell's union
activities. The City contends that it began enforcing the overtime require-
ment because it realized that Maxwell's reasons for not wanting to work over-
time had become permanent as opposed to temporary. While it is conceivable
that this realization by the City was also a factor in the decision to
enforce the requirement, the conclusion that a major factor in the decision
was the impermissible motive of striking at Maxwell's protected activities is
inescapable upon review of the evidence. Basing the decision to enforce the
overtime requirement in part on this unlawful motive constitutes a violation
of Section 964(1)(A) and (B) of the Act.
II. Remedies
Upon finding that a party has engaged In a prohibited practice, we are
directed by Section 968(5)(C) of the Act to issue an order "requiring such
party to cease
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and desist from such prohibited practice and to take such affirmative action,
including reinstatement of employees with or without back pay, as will
effectuate the policies of this chapter." We accordingly will order the City
to cease and desist from applying an overtime policy to Maxwell different from
that which was applied during the 1977-78 winter months. The record shows
that during the winter of 1977-78 Maxwell was required to work up to 11 hours
per week in overtime, with most of this overtime work occurring during weekday
evenings rather than on Saturdays. This is the overtime policy which should
henceforth be applied to Maxwell.
We will also order that the City cease and desist from changing the
practice of allowing Highway Department employees to use small tools for
repairs on the employees' personal vehicles. The City has agreed that its
temporary discontinuance of this policy in the fall of 1978 constituted a
violation of the Act, and has consented to issuance of a cease and desist
order prohibiting any changes in this practice.
Finally, we will order that the City pay Maxwell full back pay from
December 11, 1978, the date upon which Maxwell was discharged, to the date
upon which Maxwell was reinstated, less any compensation earned through other
employment by Maxwell durinq this period Since both of the reasons for
Maxwell as discharge - his failure to comply with the overtime requirement and
his strong commitment to the union - were tainted by the unlawful motive of
interfering with Maxwell's union activities, Maxwell is entitled to reinstate-
ment (which the City has already done) and full back pay.
We also note that Maxwell is entitled to full back pay as a matter of law
simply because one of the reasons for his discharge was his commitment to the
union. In Freeport Police Benevolent Association v. Town of Freeport,
P.E.L.R.B. No. 74-18 (1974), we held that a discharged employee should be
reinstated and granted full back pay if one of the reasons for the discharge
was that the employee was engaging in protected activities. Our holding was
affirmed by the Kennebec County Superior Court. Campbell v. Town of Freeport,
No. CV-75-621 (Sept. 2, 1976). Thus, since one of the reasons why Maxwell was
discharged was his commitment to the union, Maxwell would be entitled to back
pay even if the second reason for his discharge was not tainted by the
impermissible motive.
ORDER
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 968(5), it is ORDERED:
1. That the City of Auburn and City Manager Charles A. Morrison,
and their representatives and agents, cease and desist from:
a. applying an overtime requirement to Richard Maxwell
different from the requirement which was applied
during the 1977-78 winter months. The 1977-78
winter requirement was that Maxwell work up to 11
hours per week overtime, with most of these overtime
hours occurring during evening hours on weekdays.
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b. discontinuing the practice of allowing Highway Department
employees to use small tools in the Highway Department
garage for repairs on personal vehicles, until such time
as the question whether the practice is to continue or not
is negotiated with the Highway employees' bargaining agent.
2. That the City of Auburn and City Manager Charles A. Morrison pay
Richard Maxwell full back pay for the period from December 11, 1978
to the date upon which Maxwell was reinstated, less any compensation
which Maxwell earned through other employment during this period.
Dated at Augusta, Maine this 4th day of October, 1979
MAINE LABOR RELATIONS BOARD
/s/__________________________________
Edward H. Keith
Chairman
/s/__________________________________
Kenneth T. Winters
Alternate Employer Representative
/s/__________________________________
Michael Schoonjans
Employee Representative
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