STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-63
____________________________
)
FRANCIS DAVID GALASKA, )
Council No. 74, American )
Federation of State, County )
and Municipal Employees, )
AFL-CIO, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
MAINE SCHOOL ADMINISTRATIVE )
DISTRICT NO. 47, )
)
Respondent. )
____________________________)
On May 8, 1979, Francis David Galaska filed a prohibited practice complaint
against Maine School Administrative District No. 47 ("School District"). The
School District filed an answer to the complaint on May 29, 1979.
The pre-hearing conference on the case was held July 18, 1979, Alternate
Chairman Donald W. Webber presiding. As a result of this pre-hearing conference,
Alternate Chairman Webber issued on July 24, 1979 a Pre-Hearing Conference Memo-
randum and Order, the contents of which are incorporated herein by reference.
A hearing on the case was held on September 12, 1979, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Employee
Representative Wallace J. Legge. Full opportunity was given to adduce evidence,
examine and cross-examine witnesses, and make argument. Both parties subsequently
filed briefs, which have been considered by the Board.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board, and we conclude that this Board has jurisdiction to hear the case and ren-
der a decision as provided in 26 M.R.S.A. 968(5).
FINDINGS OF FACT
Upon review of the whole record, the Board finds:
1. Complainant Francis David Galaska was formerly employed by
Respondent School District, and was during his employment a
public employee within the meaning of 26 M.R.S.A. 968(5)(B).
Respondent School District is a public employer within the
meaning of 26 M.R.S.A. 968(5)(B).
2. Galaska was hired as a custodian by the School District in
December, 1977. Galaska worked the 11:00 p.m. to 7:00 a.m.
shift at the School District high school until February, 1978,
when he transferred to the 3:00 p.m. to 11:00 p.m. shift.
Galaska received $2.75 per hour at the commencement of his
employment, and was by December, 1978 making approximately
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$3.68 per hour, having received two raises in the interim.
Another custodian, Lawrence Adams, also worked the 3:00 p.m.
to 11:00 p.m. shift at the high school. Galaska and Adams
were each responsible for cleaning designated sections of the
high school.
3. In early September, 1978, Galaska commenced attempting to
organize the custodians, cafeteria workers, bus drivers and
other School District support staff on behalf of Council 74
of the American Federation of State, County and Municipal
Employees, AFL-CIO ("AFSCME"). Galaska talked to employees
about the union, and passed out union authorization cards
and union literature. There were several meetings between
employees and a union representative in September, 1978.
4. In late September or early October, 1978, Galaska told the
School District's Transportation and Maintenance Supervisor,
Roger Grevois, that Galaska was attempting to organize the
School District employees. On or about October 2, 1978,
Grevois spoke to Galaska and Adams about the union organizing
efforts. Grevois told the men that they would not get more
benefits with a union, and that they could take time off
without having their pay docked now. Galaska interpreted
these remarks as an attempt to influence or coerce the men.
Adams felt that the conversation occurred in a civil, non-
coercive setting. Grevois testified that he didn't know
whether or not he was trying to discourage the employees from
joining the union.
5. Galaska then informed an AFSCME representative that Grevois had
spoken to Adams and Galaska. By letter dated October 4, 1978
to the Superintendent of Schools, the representative stated that
agents of the School District were committing an infraction of
the Municipal Public Employees Labor Relations Act, that Galaska
was a "Union Committee Activist," and that Galaska's rights under
the Act would be protected. The Superintendent penned a note to
Grevois on a copy of this letter, asking Grevois to advise the
Superintendent on the conditions referred to in the letter.
Grevois reported back that some employees had been approached
about joining a union, and that Galaska was leading the organiz-
ing effort
6. Some time after the Superintendent received the October 4th letter,
Grevois asked Galaska and Adams to clean twice a week a hallway
which previously had been the responsibility of the custodian
working the 11:00 p.m. - 7:00 a.m. shift. The custodian on the
11:00 p.m. to 7:00 a.m. shift was a new employee who was unable to
handle all of the work normally performed during the third shift.
Galaska objected to the increased work load, and cleaned the addi-
tional hall only a few times. Adams, not pleased with the additional
assignment but wishing to cooperate, cleaned the hall the rest of the
time.
7. On Thursday and Friday, December 7 and 8, 1978, the day shift custodian
at the high school received complaints from students and teachers that
certain bathrooms were not clean. These bathrooms were in the section
which Galaska was responsible for cleaning. After finding that the
bathrooms had not been cleaned, the custodian reported the situation
to Grevois. On December 7th, Galaska stripped and rewaxed a hall and
cleaned classrooms. On December 8th, Galaska cleaned lockers which
had been scribbled on.
8. On Monday, December 11, 1978 the bathrooms still had not been cleaned.
The day shift custodian showed the bathrooms to the high school
Principal. Galaska on December 11th cleaned some of Adams' area, as
Adams was out sick, but did not clean the bathrooms in his section.
9. Upon discovering on December 12th that the bathrooms wore not clean, the
day shift custodian asked Grevois to look at the bathrooms. The high
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school Principal also reported the situation to Grevois. Grevois
inspected the bathrooms during the morning of December 12.
10. During the afternoon of December 12th, Grevois approached Galaska,
who was sweeping a floor. Grevois stated that Galaska had to
clean the bathrooms. Galaska told Grevois to get off his back,
as he was trying to help Adams, who remained out sick. Grevois
told Galaska to do his own work first, and stated that he wanted
the bathrooms cleaned. Galaska replied that he didn't have time.
Grevois then responded to the effect, "Francis, you're the laziest
S.O.B. I've got in the building." A heated exchange ensued, with
Galaska inviting Grevois outside to fight. At that point, Grevois
told Galaska to turn in his keys as he was fired, and walked from
the room.
11. Grevois had received complaints about Galaska's work prior to
December, 1978. Grevois also received complaints about the other
custodians' work. although there may have been more complaints regard-
ing Galaska's area. Grevois spoke with Galaska about the need to im-
prove his job performance several times prior to December, 1978.
12. Grevois informed the Superintendent of Schools on December 13th that
Galaska had been fired. The following day the Superintendent talked
with the high school Principal, Grevois, the day shift custodian, and
several teachers about the situation, learning that the bathrooms had
not been cleaned. The Superintendent upheld the firing and set forth
the reasons for the dismissal in a letter to Galaska dated December
14, 1978.
DISCUSSION
Galaska charges that his discharge by the School District violated 26 M.R.S.A.
964(1)(A), (B), and (C) because the discharge was based on his union activities.
He seeks as a remedy reinstatement to his former position without loss of benefits
or salary. The School District argues that Galaska was discharged because 1) he
failed and refused to perform his assigned tasks, and 2) was insubordinate to his
immediate supervisor. Galaska's union activities had nothing to do with his dis-
charge, the School District urges.
As discussed more fully below, we find after carefully considering the evi-
dence that Galaska's participation in protected union activities was not among
the causes of his dismissal. We accordingly cannot find a violation of the
statute, and must order that Galaska's complaint be dismissed. Member Legge dis-
sents.
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."
Teamsters Local 48 v. Town of Jay, MLRB Nos. 79-11 and 79-19 at 3 (1979) (emphasis
in original). In particular, if one of the reasons for an employee discharge is
the employee's union activities, then the discharge violates Section 964(1)(A) and
(B) and the employee is entitled to reinstatement and full back pay. Freeport
Police Benevolent Association v. Town of Freeport, PELRB No. 74-18 (1974), aff'd
sub nom. Campbell v. Town of Freeport, No. CV-75-621 (Kennebec County Super. Ct.
Sept. 2, 1976).
We determine whether the discharge was motivated in part by an unlawful rea-
son "by carefully examining the entire record and drawing inferences from the
facts contained in the record." Teamsters Local 48 v. City of Auburn, MLRB No.
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79-41 at 5 (1979). An inference of unlawful motive does not constitute a per
se violation of Section 964(1)(A) or (B), and may be rebutted by evidence
showing that the discharge was motivated solely by legitimate reasons. See,
Teamsters Local 48 v. Town of Machias, MLRB No. 79-21 (1979).
There are only two facts in the record which could suggest that the School
District was guilty of anti-union animus when it fired Galaska. The first is
supervisor Grevois' remarks about unions to Galaska and Adams on or about October
2, 1978.[fn]1 Grevois, who knew that the men were interested in forming a union,
told Galeska and Adams that they would not get more benefits with a union, and
that they were already free to take time off without losing pay. While these
remarks do have an anti-union tinge, they are not sufficient to establish that
Grevois' anti-union feelings caused him to fire Galaska over two months later.
Were Grevois so imbued with anti-union animus, we would expect to see some other
manifestation of this animus during the intervening two months. Yet, the record
contains none. We believe that the October 2nd episode was an isolated incident
which is unrelated to the discharge in December.
Secondly, some time after the conversation between Grevois, Galaska and
Adams, Grevois asked the two men to clean an additional hallway which previously
had been the responsibility of the third shift custodian.[fn]2 While we have found
that changes in working conditions during an organizational campaign violate the
Act, we make such findings only when the change may reasonably be said to tend
to interfere with the free exercise of employee rights. To ascertain whether
the change in conditions may reasonably interfere with employee rights, we look
at a number of factors. Among these factors are whether the employer had suffi-
cient reasons to make the change, and whether the employees could reasonably view
the change as a threatening message that the employer is displeased with the
union activities. See, e.g., Teamsters Local 48 v. University of Maine, Case Nos.
78-16, et al. at 8 (1979).
Here Grevois had a good reason for asking the men to take on the additional
work; the third shift custodian was a new employee who could not perform all of
the work normally assigned to the third shift. It thus was not unreasonable for
Grevois to ask the two more experienced custodians to take some of the burden off
the new custodian. There is no evidence that Grevois suggested to Galaska and
Adams that the additional assignment was imposed because of the men's union acti-
vities. This fact, in conjunction with the fact that there was a good reason for
the transfer of assignments, means Galaska and Adams could not have reasonably
viewed Grevois' action as a threatening message. In short, we do not think that
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1 The allegation regarding this incident was not filed within the 6 month statute
of limitations set forth in 26 M.R.S.A. 968(5)(B). We consequently do not decide
whether Grevois' statements to the men constitute a violation of the Act. The only
possible value of evidence about these statements would be to show Grevois' anti-
union animus.
2 Galaska did not allege in his complaint that this reassignment of work violated
the Act.
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the reassignment of work reflected any anti-union animus on the part of Grevois,
or that Galaska or Adams could have reasonably viewed the reassignment as an
effort to strike at their protected union activities.
In finding that there are only two facts in the record which could suggest
anti-union motivation, we do not overlook the fact that Galaska testified to
further anti-union statements by Grevois, as well as an incident where certain
School District administrators made anti-union statements to a group of cafeteria
workers. This testimony raises a substantial credibility question, because it is
rebutted by the testimony of four other witnesses.
First, the cafeteria workers' supervisor, who allegedly told Galaska about
the administrators' anti-union threats to the cafeteria workers, denied that she
had in fact discussed such an incident with Galaska. The two administrators
who were allegedly involved in the incident also denied that they had ever made
anti-union statements to the workers. Second, Grevois denied that he made any
anti-union statements during the December 12th confrontation with Galaska, which
resulted in Galaska's firing. Moreover, there is no independent evidence in the
record which supports Galaska's testimony about these two incidents.
We are thus faced with conflicting testimony about two alleged events which,
were we to credit Galaska's testimony, would establish sufficient anti-union bias
on the part of School District agents and representatives. Credibility resolutions,
difficult as they may be, are among our duties and responsibilities in administer-
ing the labor relations statutes. See, e.g., N.L.R.B. v. B.F. Diamond Construction
Co., 410 F.2d 462, 463 (5th Cir. 1969). Having carefully observed the demeanor
of the witnesses, and not being convinced that we should disbelieve the testimony
of the four witnesses in favor of Galaska's testimony, we decline to credit
Galaska's version of the facts regarding the two events discussed above. We
accordingly cannot find as a matter of fact that the two incidents in question took
place.
We could also find the necessary anti-union animus by inference, if the firing
of Galaska was too excessive a form of discipline in light of all the facts of
the case. There is no question that Galaska was the leading union activist among
the School District's employees, and that the School District was well aware of
this fact. When the discipline handed out to a union activist is too harsh in
relation to the reasons given by the employer for disciplining the employee, we
can infer that the discipline was based at least in part on impermissible anti-
union motivation. See Teamsters Local 48 v. Town of Jay, supra.
Here we are not convinced that there was insufficient cause for Galaska's
dismissal, however. While some lesser form of discipline such as a temporary
suspension might have been preferable, the fact remains that Galaska was not
performing his specified job duties. Galaska did not deny that he failed to clean
the bathrooms in his section on December 7, 8 and 11. This failure stems, we
believe, from Galaska's attitudinal problems regarding his job, shown in part by
his refusal to cooperate with Grevois or Adams in cleaning the extra hall assigned
to the second shift custodians. We have previously held that a failure to per-
form assigned work constitutes adequate cause for dismissal. Teamsters Local
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48 v. Town of Oakland, MLRB No. 78-30 (1978). Galaska's failure to clean the
bathrooms is adequate cause for dismissal in this case.
In addition, Galaska was insubordinate when Grevois approached him about
cleaning the bathrooms on December 12th. While Grevois' conduct was not exem-
plary in this matter, Galaska should not have shown the disrespect and hostility
evinced by telling Grevois to get off his back and then by inviting Grevois
outside to fight. Although under the facts of this case Galaska's insubordina-
tion was not by itself adequate cause for dismissal, it does provide some cause
in addition to his failure to perform assigned duties. Because there was suf-
ficient cause to warrant dismissal, we are not willing to infer that the firing
was based in part on Galaska's union activities.
Since we conclude that the School District was not motivated to discharge
Galaska in part by unlawful reasons, we must order that Galaska's complaint
be dismissed.
ORDER
On the basis of the foregoing findings of fact and discussion, and by vir-
tue of and pursuant to the powers granted to the Maine Labor Relations Board by
26 M.R.S.A. 968(5), it is ORDERED:
That Francis David Galaska's prohibited practice complaint
filed May 8, 1979 against Maine School Administrative
District No. 47 is hereby DISMISSED.
Dated at Augusta, Maine, this 18th day of December, 1979.
MAINE LABOR RELATIONS BOARD
____________________________
Edward H. Keith
Chairman
____________________________
Don R. Ziegenbein
Employer Representative
Employee Representative Wallace J. Legge filed a dissenting opinion.
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DISSENTING OPINION
I cannot agree with the majority's conclusion that anti-union animus played
no part in the School District's firing of Galaska. In my opinion, there is
ample evidence to support a finding that the discharge was due at least in part
to Galaska's union activities.
Even when all credibility questions are resolved against Galaska, the evidence
shows plainly that Grevois was an anti-union supervisor.[fn]1 Grevois' attempt on or
about October 2, 1978 to discourage Galaska and Adams from continuing their union
activities likely would if timely pleaded be a violation of Section 964(1)(A).
See Teamsters Local 48 v. Town of Oakland, MLRB No. 78-22 (1978).
The same is true of Grevois' subsequent reassignment of work from the third
shift to Galaska's and Adams' shift. The School District's stated reason for the
reassignment does not, in my opinion, rebut the inference that the reassignment was
intended to interfere with the employees' organizational rights:
". . . 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. . ."
Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 at 3 (l978). Moreover, Galaska
and Adams were entirely reasonable in viewing the reassignment as a "message" that
Grevois was not pleased with their union activities, Particularly since Galaska had
formerly worked the third shift and had been required to clean the hall in question.
At the very least, these actions show that Grevois was not happy with the
men's organizational activities, and that he was not adverse to changing working
conditions in ways in which the employees could reasonably view as retaliatory.
The actions are sufficient to show that Grevois harbored anti-union animus, and
that this animus very likely played a role in his firing of Galaska.
Even more significant, however, is that the School District's stated reasons
for the discharge do not hold up under careful scrutiny. The "insubordination"
claim plainly cannot serve as any sort of cause for the dismissal, because Grevois
provoked Galaska into his "insubordinate" response. Grevois cursed at Galaska
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1 It is necessary to disbelieve the testimony of only two witnesses - the
cafeteria workers' supervisor and Grevois - in order to credit all of Galaska's
testimony. I tend to believe Galaska's testimony over that of the two witnesses.
Both supervisors obviously had everything to gain by presenting a version of the
facts favorable to the School District. Grevois also seemed to be a particularly
well-coached witness. However, it is unnecessary for me to reach the credibility
issues, as I find anti-union bias on the basis of the uncontradicted testimony.
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during the December 12th incident and, not surprisingly, elicited a heated reply.
The Board has of course recognized that misconduct by the employer's representa-
tive is a relevant consideration in determining whether employee misconduct con-
stitutes cause for dismissal. Sanford Highway Unit v. Town of Sanford, MLRB No.
79-50, aff'd, Nos. 79-171, et al. (York County Super. Ct. Aug. 30, 1979). Here
Grevois was as guilty as Galaska of uttering "fighting words," and it would be
grossly unfair to hold that Galaska's natural response constitutes cause for dis-
missal.
It is true that Galaska failed to clean the bathrooms in his section on the
three days in question. However, under the facts of this case, this failure to
perform assigned work does not constitute cause for dismissal. Firing Galaska
for his failure to clean bathrooms for three days is far too excessive a penalty,
permitting the inference that there must have been another reason for the firing.
This reason is that Galaska was the chief activist in the organizational campaign.
A review of the facts completely undermines the motion that Galaska's
failure to perform assigned work could constitute adequate cause for dismissal.
First, the record shows that Galaska had been an adequate employee up to the
December incident which led to his firing. While Grevois had received some com-
plaints about Galaska's work, he also received similar complaints about all the
other custodians. Galaska also received two raises during the year that he
worked for the School District. This case therefore is very unlike Teamsters
Local 48 v. Town of Machias, supra, where we ruled there was sufficient cause
for an employee's discharge. In the Machias case, the employer documented that
the discharged employee had been suspended and dismissed several times over a
three-year period, thereby proving that the employee had been a "problem" employee
who had been given ample opportunity to reform his ways. In contrast, the School
Department has produced no evidence which shows that Galaska had prior to Decem-
ber, 1978 been a poor employee. Indeed, the evidence shows to the contrary.
Second, Galaska was not given any notice that he was running the risk of
discharge by failing to clean the bathrooms on the three days in question. While
Grevois had told Galaska on several occasions that he should improve the quality
of his work, there is no evidence that Grevois ever specifically mentioned the
bathrooms. Significantly, neither the day shift custodian nor the Principal
who were upset about the condition of the bathrooms on December 7, 8 and 11 told
Galaska that the bathrooms needed cleaning.
Third, getting custodians to clean the bathrooms was a reoccurring School
District problem, which had never before resulted in the firing of a custodian.
The Superintendent of Schools testified that the custodians have always been
reluctant to clean the bathrooms, which apparently are the scenes of much dis-
order and vandalism. Yet, the School Department produced no evidence that any
other custodian has been fired for failure to perform the cleaning duties.
Indeed, there is substantial question as to whether Galaska was fired because
he did not clean the bathrooms. Grevois testified that he did not intend to
fire Galaska after viewing the bathrooms, but that the "heat" of the December 12th
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confrontation caused the firing. This testimony is of course consistent with
the fact that the School District had never before fired a custodian for fail-
ing to clean the bathrooms. If Galaska was not fired for failure to perform
his assigned duties, and if Galaska's "insubordination" was not sufficient cause
for dismissal, then the School District simply had no cause to fire.
Fourth, mitigating circumstances excused Galaska's failure to clean the
bathrooms on December 11th. The evidence is uncontradicted that Adams was out
sick on December 11th, and that Galaska consequently was cleaning some of Adams'
area that day. Because Galaska was performing additional duties on December
11th, it does not seem fair to hold him entirely responsible for railing to
clean the bathrooms.
Finally, the Superintendent of Schools did not thoroughly investigate the
reasons for Galaska's dismissal. The day after the firing, the Superintendent
spoke to the high school Principal, Grevois, the day shift custodian, and
several teachers about the discharge. No effort was made to get Galaska's ver-
sion of the facts. On the basis of his discussions, the Superintendent upheld the
firing. Since the Superintendent spoke to no one who presented Galaska's side
of the story, it is questionable whether he was fully apprised of the facts of
the case. The Superintendent should have made an effort to uncover all facts
before upholding the discharge, the most drastic form of discipline.
In light of all these facts, the conclusion that the School District lacked
sufficient cause to discharge Galaska seems inescapable. Galaska's organizational
activities must have been a cause for the firing.
The facts of this case are not dissimilar from those in Teamsters Local 48
v. Town of Jay, supra. There a union activist borrowed a town backhoe for per-
sonal use without authorization from town officials. The backhoe was damaged
while the employee was using it. and the town fired the employee, After carefully
considering the facts, the Board concluded that although some measure of disci-
pline was appropriate, the discharge was impermissibly based in part on the
employee's protected activity.
Among the facts relied on by the Board to infer the existence of the imper-
missible motive were that the town failed to investigate the incident, failed to
give the employee an opportunity to explain himself, and did not explain the
change from disciplinary procedures used in the past. In addition, the Board
noted the "sheer unlikelihood" that the employee would have been discharged under
the circumstances of the case "had he not been the foremost union activist."
The Board accordingly held that the discharge violated Section 964(1)(A) and (B),
and ordered, since the employee had engaged in some misconduct, reinstatement
without back pay.
That is the holding and the remedy which I would make in this case.
Dated at Augusta, Maine this 18th day of December, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________
Wallace J. Legge
Employee Representative
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