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 [-1-] ________________________________________________________________________________ $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 -2- ________________________________________________________________________________ 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. -3- ________________________________________________________________________________ 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 __________ 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. -4- ________________________________________________________________________________ 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 -5- ________________________________________________________________________________ 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. -6- ________________________________________________________________________________ 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 __________ 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. [-1-] ________________________________________________________________________________ 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 -2- ________________________________________________________________________________ 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 -3-