STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 79-65
Case No. 80-07
_______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
) DECISION AND ORDER
v. )
)
LEWISTON-AUBURN WATER POLLUTION)
CONTROL AUTHORITY, )
)
Respondent. )
_______________________________)
Teamsters Local Union No. 48, State, County, Municipal and University Employees
in the State of Maine (Local 48) filed the prohibited practice complaint in Case
No. 79-65 on May 15, 1979. Lewiston-Auburn Water Pollution Control Authority
(the Authority) filed a response on May 24, 1979. A pre-hearing conference was
held on July 18, 1979, by Alternate Chairman Donald W. Webber, who issued a Pre-
Hearing Conference Memorandum and Order dated July 24, 1979, the contents of which
are incorporated herein by reference.
Local 48 filed the prohibited practice complaint in Case No. 80-07 on October
11, 1979. The Authority responded on October 15, 1979. A pre-hearing conference
was held on November 19, 1979, by Alternate Chairman Gary F. Thorne, who issued
a Pre-Hearing Conference Memorandum and Order dated November 23, 1979, the con-
tents of which are incorporated herein by reference. It was ordered that the two
cases be consolidated for hearings by the Maine Labor Relations Board (Board).
The matters were heard on September 5 and November 27, 1979, Alternate Chair-
man Webber presiding, with Wallace J. Legge, Employee Representative, and Kenneth
T. Winters, Alternate Employer Representative. Local 48 was represented by
Richard R. Peluso, International Trustee, and the Authority by Frederick G.
Taintor, Esq. The parties ordered a transcript of the hearings. Attorney Taintor
filed a post-hearing brief and reply brief. Hugh J. Beins, Esq., and Jonathan G.
Axelrod, Esq., filed a post-hearing brief for Local 48. Paragraph 4(h) of the com-
plaint in Case No. 79-65 was not addressed at the hearing and is considered with-
drawn.
Alternate Chairman Webber withdrew from consideration of the case prior to
deliberations. After notice to the parties, Chairman Edward H. Keith has partici-
pated in the decision of this case on the basis of the transcript and the documen-
tary evidence. The parties did not object to this procedure.
JURISDICTION
Jurisdiction of the Board to hear and decide this case lies in Section 968(5)
of the Municipal Public Employees Labor Relations Act ("the Act"), 26 M.R.S.A.
968(5).
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FINDINGS OF FACT
1. Complainant Local 48 is the certified bargaining agent for a unit of
employees of the Authority. 26 M.R.S.A. 962(2). Respondent is a
public employer. 26 M.R.S.A. 962(7).
2. On October 27, 1978, Local 48 requested that the Authority voluntarily
recognize it as the bargaining agent for a unit of employees of the
Authority.
3. On October 31, 1978, Local 48 filed a petition with the Board for unit
determination and for a bargaining agent election. Richard W. Sarle,
the Engineer - Director of the Authority, received these items a few
days later and he denied voluntary recognition of Local 48 in a letter
dated November 13, 1978.
Allegation A - No retroactive pay adjustment
4. On November 15, 1978, Sarle prepared a revised pay scale which restored
the 5% increments between seniority "steps" at each wage level. The
full 5% increment which had existed prior to January 1, 1976, had been
lost as a result of a 15 cent across-the-board hourly wage increase which
was granted on that date. Instead of applying the 15 cent increase to
all the base wages at Step I and computing the higher Steps on the basis
of 5% increments, the wage at every step was simply raised by 15 cents.
Thus the wages at Step II and above were one cent to 25 cents less than
they would have been had the 5% increments been retained. This difference
was thereafter referred to as the "one cent error."
5. The Authority thereafter instituted a 5% general wage increase for 1977
and a 7% increase for 1978. These increases, however, built upon the
1976 wage plan and therefore continued the one cent error.
6. In February 1978 the matter of the one cent error was raised by employee
members of the Standing Committee, whose members also included managers.
As a result of the discussions in the Committee, a request from the employ-
ees was forwarded to the Board of Directors of the Authority that an
adjustment be made to correct the one cent error. The employees also re-
quested a retroactive correction for 1977 and 1978. The Board of Direc-
tors, who had been unaware of the discrepancy until that time, voted to
table the matter on March 3, 1978, until budget deliberations for the
1979 fiscal year.
7. Later in the year, Sarle prepared the revised pay scale referred to in
paragraph No. 4, which he referred to as a work sheet. It contained the
following typed notes at the top: "(effective 1/1/78) - revised 11/15/78 -
(5% increments corrected)." Sarle stated that it was erroneous that the
work sheet contained the "effective 1/1/78" statement. In his support we
note, however, that the unrevised wage sheet from which he worked was also
marked "(effective 1/1/78)" in the same position on the page. At a regu-
lar meeting of the Directors in December 1978, they adopted the revised
wage plan reflected in Sarle's worksheet and voted a 7% wage increase for
1979 based on this. Thus the 5% increments were restored. They did not
make the adjustment retroactive, however. Sarle testified that a copy of
the worksheet which Lab Technician Belisle obtained from Sarle's secretary
was not intended for employees, that the secretary was not authorized to
give a copy to Belisle, and that he did not know Belisle had obtained a
copy. Operator Gary B. Haley later testified, however, that Sarle
himself had provided copies of the worksheet to the employee representa-
tives at a Standing Committee meeting before the Board of Directors
acted on the 1979 wage increase. Local 48 alleges that the decision not
to make the adjustment retroactive, coming after the denial of voluntary
recognition, was a violation of the Act.
Allegation B - Denial of promotion to Hebert.
8. On January 8, 1979, shortly after the new wage increase was effective, a
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unit determination hearing was held on Local 48's petition and one
of the issues was whether or not Lab Technician Belisle should be in
the bargaining unit. The Authority contended that he was a member of
management and should be excluded. Belisle, who was a key union or-
ganizer, testified on behalf of Local 48 concerning the nature of his
job duties. There is no evidence that Daniel Hebert, who was then
Belisle's assistant, participated in this hearing or that Hebert had
otherwise disclosed his union activities to the employer.
9. On February 14, 1979, the Authority posted an opening for Assistant
Operator in the operations department. The job posting stated that
applicant must be willing to take a wastewater treatment course (the
"Sacramento" course) and that preference would be based on seniority.
Daniel Hebert, an Assistant Lab Technician in the chemistry lab under
Belisle, applied for the job. (The chemistry lab is a separate depart-
ment from operations.) Hebert was then a CETA employee with a hiring
dated of April 17, 1978. He also had already completed the Sacramento
course. However, Sarle hired Dupuis who had just been hired two weeks
before at an entry level (but nonetheless skilled) mechanic job in the
maintenance department. Dupuis had no wastewater plant experience or
training. Sarle considered that he was qualified, however, because of
his general mechanical ability. (It was stipulated that Hebert, in con-
trast, was highly qualified for the job.) Sarle did not tell Hebert why
he was not hired. At some point later, however, Richard L. Blanchard,
the Head Chemist (chemistry lab department head), told Hebert that he was
not hired because he was only a CETA employee and thus had no seniority
while Dupuis was a permanent employee in the maintenance department and
thus had preference.
10. A second opening for an Assistant Operator position was posted on March
22, 1979. This time the job bid stated: "Selection will be based on
best over-all qualifications plus seniority." Hebert again applied but
was rejected on March 23rd. An employee in the maintenance department
with 5 years seniority, who had taken the Sacramento course, was hired.
Sarle testified that he decided to give first preference to "regular"
employees in filling the Assistant Operator position. Hebert, as a CETA
employee, was not considered to be a regular employee. This had not always
been the policy, however. When Belisle was hired as the Lab Technician,
he was picked over a permanent, and not unqualified, employee who also
applied for the job even though Belisle was a CETA employee at the time of
hiring. Sarle also testified that he had reservations about Hebert's
performance since he claimed Hebert tended to panic. Sarle pointed to
no specific instances of panic and had never discussed this subject with
him. Sarle also testified that Hebert was not hired because Hebert, as
Assistant Lab Technician, was training to be Lab Technician and not assist-
ant operator.
11. Hebert's union activity prior to these job application denials was that of
signing an authorization card and attending union meetings. Sarle stated
that he knew nothing of Hebert's or Dupuis' union activity. Hebert later
voted in the bargaining agent election on April 11, 1979. (His vote was
challenged but the challenge was not resolved because the vote was irrele-
vant to the outcome.) Hebert was later terminated when his CETA contract
expired on April 17, 1979. Local 48 alleges that Hebert was denied promo-
tion to the Assistant Operator positions because of his union activities.
Allegation C - Reducing Belisle's overtime.
Allegation D - Eliminating "paid time" aspect of attendance at
wastewater conventions by Belisle.
Allegation E - Opening Belisle's official mail.
12. On March 23, 1979, a Board hearing examiner issued a unit determination
report as a result of the hearing referred to in Finding No. 8. The re-
port resolved the question of Belisle's unit status in favor of the union,
that is, it concluded that the Lab Technician position should be included
in the bargaining unit despite the Authority's claim that he was a supervi-
sor. The report was not appealed to this Board by the Authority. As a
result of the unit determination, Sarle began treating Belisle differently
in two respects: he directed that his official mail would be opened and
routed through the Head Chemist, Blanchard, prior to being passed to
Belisle; and he terminated the previous practice of permitting Belisle to
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attend certain wastewater treatment conventions on paid time. The
representatives of the Authority explained that these changes were
made because they no longer considered him "management" and that they
simply were treating Belisle in the same fashion as the other "rank
and file" members of the bargaining unit. Local 48 also alleges that
Belisle's overtime opportunities were greatly reduced after the unit
determination report. The Authority, however, responded that the
overtime reduction was part of a continuing effort to reduce over-
time and unrelated to the unit report. Each of these three allega-
tions is considered in detail below.
13. On February 27, 1979, only a few days after the unit determination
decision was rendered, Blanchard spoke to Belisle about his overtime.
Blanchard told him that he would no longer be getting overtime. Belisle
was also switched from a flexible (within limits) starting time to a
definite shift and he was no longer permitted to work on a "time-in
to time-out" basis. Since Belisle had been hired as the Lab Technician
in 1977, he had worked a flexible shift, that is, he would start at no
specific time but approximately one-half hour after the treatment plant
day-shift started. He also had been paid for all his time from arrival
to departure. In contrast, all other employees in the unit worked
definite shifts and were only paid for time worked. Starting immediately,
Belisle's overtime dropped significantly. For the previous five months
he had averaged 12.7 hours per month of overtime. His average for the
five months since the conversation with Blanchard has been 4.0 hours
per month. Most of the time that Belisle has worked overtime he has
not asked prior approval to do so but has done so on his own initiative
when a job needed to be done. Although his overtime was dramatically
decreased, he has still not sought prior approval despite Blanchard's
statement that he would not get any more overtime. Blanchard, however,
has not objected to the lesser amount of overtime that Belisle has been
working. Sarle had told Blanchard to keep Belisle's overtime down; Sarle
stated that it was always general policy to reduce overtime for all and
that overtime had been heaviest in the lab (where Belisle worked).
14. The Respondent has explained the decrease in overtime and the change
back to the fixed, regular shift as steps taken to reduce expenses.
Belisle admitted that he was usually requested to try to keep his
overtime down each year in the past around budget time (near the end
of the calendar year). Belisle's flexible, time-in to time-out schedule
had originally been instituted as an attempt to reduce overtime at
Belisle's suggestion. By permitting Belisle's shift to start and end
about one-half hour after the regular plant shift, there could be a more
efficient turnover of lab information between shifts. There was no evi-
dence offered by Respondent as to whether or not the plan accomplished
this end or not. In any event, this schedule was terminated at this time.
Belisle also testified that certain aspects of his duties were not being
performed as well as before because of the reduction of his overtime.
15. It was conceded that Belisle's treatment both with respect to the routing
of his official mail and with respect to his attendance on paid time at
certain conventions changed as a direct result of the unit determination
decision of February 23, 1979. The complaint alleged that the Respond-
ent began opening and reading Belisle's mail in January; the evidence
was somewhat unclear as to when the opening of the mail began. We con-
clude that the Directors of the Authority decided to terminate the tem-
porary practice of not opening Belisle's mail in early January 1979,
shortly after the unit determination hearing. For the few months prior
to that they had acceded to Belisle's request to not open any of his mail.
It is clear, however, that the Authority began routing his mail through
Blanchard as a direct result of the unit determination decision. Be-
lisle discovered the change with respect to convention attendance on
April 6, 1979, when he was denied permission to attend a particular
convention on paid time.
16. Prior to the unit determination report, the Authority considered its
"management team" to consist of Engineer-Director Sarle, the three de-
partment heads - Head Mechanic, Chief Operator and Head Chemist (Blan-
chard) - and Belisle. Its explanation for the change in treatment of
Belisle is best set forth in its post-hearing brief:
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The reason for the change in treatment of Mr. Belisle
is that Respondent had thought Mr. Belisle was part
of the "management team" and that he was performing
a managerial function. When the union caused Mr.
Belisle's job to be incorporated into the bargaining
unit, it then became clear that instead of being a
managerial employee he had become a member of the
rank and file. It is admitted, therefore, that the
change in the treatment of Mr. Belisle in this respect
resulted from his membership in the bargaining unit --
but that is not the same as saying that it resulted from
his union activities. In fact, the change in the treat-
ment of Mr. Belisle put him on a par with other members
of the bargaining unit.
. . .
The difference in pay status for Mr. Belisle before and
after the unit determination hearing resulted from the
election by Mr. Belisle and/or the union, with the approval
of the Board, to treat his job as a production or mainte-
nance job rather than as a management job. (Record page
136). This change in treatment was consistent with the
change in his treatment with respect to staff meetings.
Prior to the unit determination hearing, Belisle was
treated as a member of management and attended staff meet-
ings pertinent to his department. Thereafter, he did not.
(Record page 137). In effect, Mr. Belisle was demoted
from a manager to a production or maintenance employee by
his own choice or by the choice of the union. He should
not now be heard to complain about the results that neces-
sarily ensue. The union persisted in trying to maintain
that the change in treatment resulted from union activity
whereas the Respondent's witness persisted in maintaining
that the different treatment resulted from a change in
status demanded by the union.
Brief of Respondent at p. 11-12.
17. The testimony at the hearing supported this explanation. Sarle
stated: "I felt we had to treat him like the rest of his fellow
employees in that category [i.e., in the bargaining unit]."
(Record page 87). Also during direct examination:
"Q. And has your policy changed in any respect or is it
just that Mr. Belisle has opted out of the manage-
ment group?
A. [Mr. Sarle] That's the story right there."
(Record page 88)
Also:
"Q. And the sole reason for deciding to open it after
the unit determination hearing was that he was no
longer considered a member of management?
A. [Mr. Sarle] He's no more management.
Q. So that you didn't feel that he necessarily owed full
allegiance to you?
A. True." (Record page 90).
Allegation F - Removal of Belisle's assistant
18. On April 17, 1979, Hebert was terminated. Hebert was Belisle's
assistant and had been for the full year of his CETA eligibility.
When Hebert's contract expired, Hebert was terminated and was not
directly replaced. Blanchard occasionally assisted Belisle and,
since August 1979, another CETA employee has been made available
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to assist him part of the time. Prior to the hiring of
Hebert, Belisle had had no assistant. Local 48 alleges a
violation because Belisle's job was made harder by the
removal of his assistant.
Allegation G - Removal of notice of union meeting
19. On April 17, 1979, Sarle removed a notice for a meeting.
The purpose of the meeting was not specified on the notice.
He gave it to Blanchard and directed him to talk to Belisle
about it and to explain that permission should be obtained
prior to the scheduling of meetings. It was undisputed that
although some items could be posted without permission, e.g.,
cartoons and items for sale, the Authority had an unwritten
policy requiring that permission be obtained to hold union
meetings on the premises and, obviously, to post notices for
such. Permission had not been refused when requested. Belisle
was approached because he was viewed as the foremost union activ-
ist.
20. Blanchard took the notice to Belisle, who asked "Why me?"
Blanchard stated words to the effect of, "If you want to have
a meeting you know you need permission." Belisle, who felt
he was being harassed, responded: "Yes I know but this is not
my notice. I think it is unnecessary to pick me out to show
ill feelings and make things difficult." No further action was
taken regarding the notice.
Allegation H - Change in break time
21. The sole allegation of the second complaint, Case No. 80-07, is
that break times were shortened immediately after the bargaining
agent election which was held on April 11, 1979. (At the elec-
tion Local 48 was certified as the bargaining agent.) Belisle
claimed that the employees had always had 30 minutes for lunch and
15 minutes for a morning coffee break. The first time he had ever
heard anything about only a 20 minute break was on Friday, April 12,
1979, when Maintenance Department Head Donald Haskell, who regularly
lunched with Belisle and maintenance department employees, said
something to the effect that "20 minutes are up, let's get back to
work." Belisle stated that none of the employees said anything to
Haskell because they knew the reason for Haskell's comment. A
week later Haskell said something to Belisle about his coffee break
being only 10 minutes long.
22. In sharp contrast, Haskell claimed that the existing policy had
always been 20 and 10 minute breaks. He stated that he had found
it necessary to orally remind the employees to return to work because
of an extended break approximately every two months. On other occa-
sions he would simply return to the lunch area and say nothing because
his presence alone would be sufficient to get the employees moving
back to work. Sarle testified that the 20/10 break policy was un-
written but that he generally, but not always, mentioned this to
applicants for employment. He did not claim to have informed Belisle.
23. On March 21, 1979, twenty-two days prior to the date of the allegedly
new break policy, the Standing Committee met. Minutes of that meet-
ing reflect that Sarle stated that employees had been going over
their 20/10 minute break time. There were ample opportunities for
all employees to learn of this comment since employee representatives
are members of that committee and since the typed minutes are usually
posted on the bulletin board between one to three weeks later. Sarle
also indicated that the minutes are always typed, at the latest, prior
to the next meeting of the Board of Directors, in this case April 6th,
and therefore that they probably would have been posted as well prior
to that date. We conclude that the employees had knowledge of Sarle's
comments about the break time periods prior to the election on April
11th. We also find that there was lax enforcement of the break times
prior to this period. Whether or not the alleged events constituted
a change in policy or a change in degree of enforcement of a work rule
is primarily a credibility determination which is resolved in the
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"Discussion" section.
24. When the Authority advanced the supervisor claim at the hearing
before the hearing examiner on January 8, 1979, Local 48 asserted
that it would agree to place Lab Technician Belisle in a separate
unit; the Authority would not agree to this, however, maintaining
that he should not be in any unit. The hearing examiner later
concluded that Belisle was not a supervisor within the meaning of
Section 966(1) of the Act and even if considered a "working super-
visor," he would be included as a type of employee which by practice
has been included in units with "rank-and-file" employees. The
hearing examiner also determined that the Lab Technician was not
excluded from public employee status because of any of the managerial
exceptions of Section 962(6) of the Act. Accordingly, the Lab Tech-
nician was included in the appropriate bargaining unit along with the
positions of Operator, Assistant Operator, Mechanic, and Skilled
Laborer.
25. Local 48 filed complaint number 79-65 relating to allegations A
through G on May 15, 1979, and its complaint numbered 80-07 relating
to allegation H on October 11, 1979.
DISCUSSION
A. No retroactive pay adjustment.
Local 48 urges that the Authority decided not to make a wage scale adjustment
retroactive because of the employees' union activity in violation of Section 964
(1)(A) and (B), 26 M.R.S.A. 964(1)(A)(B). The Authority counters that it made
the wage adjustment consistent with its past practice and without regard to union
activity. We conclude that there was no violation here.
As set forth in the Findings of Fact paragraphs 4 to 7, the "one cent error"
was created in January 1976, and went unnoticed until February 1978 when the employ-
ees requested that it be corrected, retroactively to 1976. The Board of Directors
of the Authority, however, decided to defer consideration of the matter until its
budget deliberations for 1979.
In the interim, Local 48 began an organizing drive and requested that the
Authority voluntarily recognize it as the bargaining agent on October 27, 1978;
the request was refused.
Preliminary to the budget deliberations, on November 15, 1978, Director Sarle
prepared a revised wage chart for the current wages which corrected the one cent
error. He distributed copies of this to employee members of the Standing Committee
shortly thereafter. There was no testimony whether Sarle stated that the Authority
intended to make the adjustment retroactive or not. The clear implication was that
the Authority was going to consider eliminating the one cent error, which they then
did at a December 1978 meeting of the Board of Directors. Specifically, they elimin-
ated the one cent error and then implemented an annual wage increase of 7%. They
did not make the error adjustment retroactive.
There is no evidence that the sheet that Sarle passed out was not a work sheet,
or that he intended to mislead the employees into thinking that they would be
getting a retroactive adjustment. The Board of Directors in fact had to use the
revised chart that Sarle had prepared as a work sheet in order to correct the one-
cent-error. The fact that the revised schedule was marked "effective 1/1/78" is of
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no import. The unrevised schedule was similarly marked. Moreover, Sarle was
in no position to decide to make the plan effective, only the Board of Directors
could do so.
We therefore conclude that the Board of Directors never planned on a retro-
active adjustment and that it in no way changed its pay policies because of the
advent of union activity. Therefore, we find no prohibited practice.
The Authority also raised the issue of the six-month limitation, 26 M.R.S.A.
968(5)(B). We have rejected this argument, however. The allegations focused on
the decision not to make the adjustment retroactive, which took place in December
1978, within the six-month period.
B. Denial of a promotion to Hebert.
Local 48 contends that the Authority denied CETA employee Hebert's bid for a
permanent job because of his union activities and that the authority thereby vio-
lated Section 964(1)(A) and (B). The Authority counters that Hebert was not hired
for two permanent openings solely because of a policy to give preference to regular
employees.
It is uncontested that the two openings went to other Authority employees,
on one occasion to an employee who had been hired only two weeks previously in
the Maintenance Department. There is a contest to the claimed policy, however.
The policy was unwritten and had apparently not been followed in December 1977 when
then CETA employee Belisle was hired for a permanent job over another regular em-
ployee.
It is stipulated that Hebert was highly qualified for the opening, clearly more
so than the employee who was actually hired. There was some testimony from Sarle
that Hebert tended to panic and therefore might not make a good candidate for an
operational position. There was no detail offered on this point, however.
Hebert was told that he could bid for the skilled laborer's position with the
Authority that had been vacated by Dupuis; this job had a lower wage than the
Assistant Operator job. He did not apply for the laborer position.
These factors could raise an inference of discrimination, see, e.g., Teamsters
Local 48 v. Baker Bus Service, MLRB No. 79-70 (March 3, 1980), appeal docketed, Ken-
nebec Super. Ct. CV-80-802 (March 18, 1980), however, we find no evidence that the
employer had any information upon which to base such discrimination. Sarle testi-
fied that he had no knowledge of either Hebert's union sympathy or that of Dupuis.
This is believable because the facts that Hebert signed a union authorization card
and attended union meetings may not have been known by the Authority. He was not
a leader, such as Belisle was, and the only evidence of knowledge of Hebert's
activity on the part of any management person was the testimony of Sarle that he
did not have any such knowledge.
It would be too much to infer that there was a specific attempt to discrimin-
ate against Hebert because of his union activities. Although we might have reached
a different conclusion if management had been aware of Hebert's support for the
union, we dismiss this aspect of the complaint.
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C. Reduction of overtime for Belisle.
D. Elimination of "paid time" aspect of attendance at
wastewater conventions for Belisle.
E. Opening Belisle's official mail.
Local 48 alleges that the Authority undertook each of the above actions
against Belisle because of his union activities. The Authority responds that,
with respect to the conventions and the mail, it changed the treatment of Belisle
because of the unit determination report of February 23, 1979, which concluded that
the Lab Technician position should be included in an appropriate bargaining unit.
With respect to overtime, however, the Authority argues that the change in Belisle's
overtime was simply part of an on-going effort to reduce operating costs. We treat
the conventions first.
Belisle first discovered the change with respect to his attendance at waste-
water conventions on April 6, 1979, when he was denied permission to attend a par-
ticular event on paid time. According to the Authority, the change was made as a
result of the unit report because the Authority no longer considered Belisle part
of its "management team." It argues that because Belisle and/or Local 48 elected,
with approval of the hearing examiner of the Board, to be included in the appro-
priate bargaining unit, he had become a member of the "rank and file." This
change in pay treatment therefore necessarily ensued. Sarle stated that he felt
he now had to treat Belisle like the other employees in the appropriate bargain-
ing unit.
We reject this claim and conclude that the Authority's argument is designed
to justify its action which we find to have been taken against Belisle because of
his union activities and that the Authority's action is inherently destructive
of protected rights.
The underpinnings of the Authority's argument simply do not withstand scrutiny.
First, Local 48 and Belisle did not "opt" or "elect" to be included in the appro-
priate bargaining unit. Local 48 simply chose to ask for the inclusion of the Lab
Technician, which it could have done whether Belisle was a supporter or not; and
Belisle simply appeared to testify regarding what his job duties were, which he
could have done whether called as a witness by Local 48, the Authority, or the
hearing examiner. It is the hearing examiner who decides bargaining unit issues.
On the evidence adduced, Belisle would have been included whether the evidence came
from him or not, and whether he was called by the Authority or Local 48.
Second, to conclude that one becomes a member of the rank and file because a
unit determination report places a job classification in an appropriate bargaining
unit is a non sequitur. The term "rank and file" has no legal meaning; even in its
common usage it would not apply to many types of "public employees," 26 M.R.S.A.
962(2), who are appropriately included in bargaining units, for example, super-
visors - see 966(1), and professionals - see 966(2).
Third, there is no duty or necessity to treat all members of a bargaining unit
alike in all aspects of working conditions. They certainly are not treated alike
for pay purposes. In addition, there are many different reasons why different job
classifications would be treated differently with respect to hours, training oppor-
tunities, work rules, etc.
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Finally, the fact that a hearing examiner determines that it would be
appropriate to include a particular position in a proposed bargaining unit has
no immediate legal ramifications other than to define the group of employees
who would be eligible to vote in a subsequent election to determine whether
they desired to be represented for collective bargaining purposes or whether they
desired no representation. Therefore, we reject the claimed basis for the change
of pay treatment of Belisle.
The change in treatment for these conventions also appears to be a case of
cutting off one's nose to spite one's face. We conclude that Belisle had been
permitted to attend these conventions in the past because he did not need to be
replaced. In essence, it cost the Authority no extra money to send him on paid
time. Moreover, continuing education is obviously crucial to a Lab Technician,
both for personal advancement and in the interest of the Authority.
The Authority did not have to change Belisle's pay treatment. It has
attempted to use job terminology and a claim of duty as a way of justifying its
retaliation against Belisle because he supported Local 48.[fn]1
This unlawful motive is apparent from the testimony and flavor of the case.
Sarle was clearly hostile to Belisle and unsuccessfully attempted to discredit
him by suggesting that Belisle had obtained a copy of the wage adjustment work
sheet in a less than upright fashion. This ploy was exposed, however, by the
convincing testimony of Operator Gary Haley that Sarle himself had released
copies to the employees at a meeting of the Standing Committee.
We have long held that conduct violates Sections 964(1)(A) and (B) of the
Act if it is partly motivated by anti-union animus. See, e.g., Freeport P.B.A
v. Town of Freeport, PELRB No. 74-18 (Dec. 18, 1974) enforced, Campbell v. Town
of Freeport, Kennebec Super. Ct. No. C-75-621 (Sept. 2, 1976). The desire to
punish Belisle was by far the dominant motive behind this change. And Belisle
was unlawfully denied an opportunity to advance himself in his area of skill.
In addition, these changes are inherently destructive of protected employee
rights. See, N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967). We
also conclude that the Authority has violated Section 964(1)(D). It considered
Belisle's testimony and participation in the unit determination proceeding to be
disloyal; and retaliation against him for this conduct we believe to have been
at least a partial motive for the change of pay treatment for the attendance at
conventions.
With respect to the opening of non-personal mail, however, we are not con-
vinced that an improper change has taken place. Basically, we conclude that
this is a trivial issue and dismiss this aspect of the complaint.
With respect to the change in overtime opportunities and the work schedule,
however, we conclude that the Authority has violated Sections 964(1)(A), (B) and
____________________
1 A public employer is ill-advised to change the working conditions, to the benefit
or detriment, of any employee prior to a bargaining agent election unless it can
demonstrate that the change is consistent with a regular cycle or was decided upon
prior to the advent of awareness of union activity. Otherwise, such a change is
likely to be challenged and may result in setting aside an election and may consti-
tute a prohibited practice. An exception to this may be action necessary to pre-
serve the confidential nature of labor relations information.
After an election, changes can be accomplished through negotiation.
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(D). The Authority claimed that the change in overtime was simply part of an effort
to reduce overtime for budgetary purposes. Although that is obviously a legitimate
reason, it was not the reason here. It was not the real reason why Blanchard an-
nounced to Belisle, only days after the unit determination report was issued, that
Belisle would no longer be getting overtime. Past attempts to limit overtime had
come at budget time, which this was not, and were merely suggestions to try to keep
it down. This time it was a blanket elimination. We conclude that it was a pointed
attempt to penalize Belisle for his union activity and for his testimony at the unit
determination hearing.
It is evident that there was no change in the amount of work which needed to
be done by Belisle, and which was left undone as the result of this change. The
reason for the change at this time was seemingly unconnected to any budgetary con-
cerns. Rather, it was motivated by a desire to retaliate against Belisle. This
conclusion is also supported by some of the same considerations discussed above
regarding conventions.
Similarly the change from the flexible time-in, time-out schedule, which com-
menced generally one-half hour after the regular shift, also was motivated by hos-
tility to Belisle for his "disloyal" activities. We are unconvinced by the claim
that this system was not working out; it was. In contrast, the timing of this change,
along with the evident purpose behind the other changes, convince us that this was
also harassment and discrimination designed to restrain and discourage union activ-
ity.
In summary, the changes in overtime opportunities, in shift schedule, and in time
basis, under these circumstances, violated Sections 964(1)(A)(B) and (D).
F. Removal of an assistant.
We reject this aspect of the complaint because, in the absence of a claim of
endangerment to health or safety, we do not now perceive how the loss of an assist-
ant by itself adversely affects an employee; one still works the same number of
hours. In addition, the assistant was "removed" only when his CETA contract expired.
At that point, Belisle simply returned to the situation as it was before Hebert
was hired, that is, working without an assistant.
G. Removal of Union meeting notice.
Local 48 claims that Belisle was rebuked in violation of the Act regarding the
posting of a notice of a meeting. We reject this contention. We find nothing un-
usual about taking the improperly posted notice down and bringing it to Belisle
to remind him of the proper procedure for posting notices. The Authority clearly
viewed him as the key union adherent and assumed that he would know about the
notice.
If there were a violation, it would have to be in the manner in which the con-
versation was conducted. On the one hand, there is no question that the Author-
ity had the general motive of making things as unpleasant for Belisle as possible.
On the other hand, the testimony from Belisle did not convincingly demonstrate
that Blanchard conducted himself in a manner that was so uncivil as
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to constitute harassment or interference. Although the question is a close one
and made difficult because Blanchard did not testify, we conclude on the pre-
ponderance of the evidence that the conversation did not amount to unlawful inter-
ference or discrimination.
H. Change in break time.
This change allegedly took place immediately after Local 48's election and
certification as the bargaining agent on April 11, 1979. The Authority claims
that there was no change in policy and that, if anything, this was an ex-
ample of a recurrent need to remind employees not to abuse the break periods.
The Authority also points out that this allegation refers to events that it claims
actually took place greater than six months prior to the filing of the complaint
and therefore should be dismissed. We dismiss this aspect of the complaint on
the merits, but not because of the limitation period.
To the extent that strict enforcement of rules allegedly began after April
11, 1980, the complaint would be timely. That is what is alleged and there is
evidence to support this theory. Accordingly, we do not sustain the objection
based on the six month limitation period, 26 M.R.S.A. 968(5)(B).
On the merits we conclude first that there was no change of break periods
from 30 and 15 minutes to 20 and 10. The inquiry does not stop there, however,
since often a new, strict enforcement of a standard can have the same practical
effect as a change in the standard. Thus, if the 20 and 10 standard had been
observed in the breach over a long period of time and was then clearly and sud-
denly enforced to the letter in response to union activity, we might find that a
prohibited practice had taken place. In this case, however, we conclude as a
matter of fact that nothing unusual happened regarding the break periods. In
essence, we are convinced by Haskell's testimony on this point that he was simply
enforcing the break periods as he always had. Accordingly, we dismiss this aspect
of the complaint.
REMEDY
We will issue a cease and desist order regarding the prohibited practices
found. In order to fully effectuate the purposes of the Act, however, we also
must attempt to restore the situation to that which would have obtained were it
not for the prohibited practices. Caribou School Department v. Caribou Teachers
Association, 402 A.2d 1279, 1284 (Me. 1979).
With respect to conventions we will require that the paid time treatment for
attendance at these and similar educational seminars be restored to the Lab
Technician from April 6, 1979, when it was first denied, until such time as it
is hereafter changed by full collective bargaining with Local 48. In addition,
Lab Technician Belisle is to be reimbursed for any loss of pay he suffered as the
result of his attendance at any seminar or similar event for which he would have
been paid had it not been for the change in treatment implemented on April 6,
1979.
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With respect to the change in schedule, we will require that the Lab Techni-
cian be restored, on request, to the overlapping shift that was worked prior to
the change, and also that, on request, the Lab Technician be returned to work on
a time-in, time-out basis until such time as the schedule is hereafter changed by
full collective bargaining with Local 48.
An affirmative remedy for the change in overtime treatment of Belisle is
difficult to create. On the one hand, Belisle lost the significant amount of
regular overtime opportunities that he had been accustomed to solely because of
his exercise of protected rights. Thus, to fail to provide some monetary relief
would be to emaciate the Act and penalize an individual unfairly. On the other
hand, the amount of overtime available is a matter that is generally an exclusive
employer decision that may be based on any number of factors not neces-
sarily relating to working conditions or other bargaining subjects. The public
employer cannot be required to provide overtime indefinitely simply because it
has provided such in the past. In order to balance these conflicting interests,
see, Sanford Highway Unit of Local 481 (AFSCME) v. Town of Sanford, 411 A.2d 1010
(Me. 1980), we will direct that Lab Technician Belisle be paid an amount equal to
the multiplication product of 150% of his regular hourly pay on April 1, 1979, and
43.7 hours. This is roughly equivalent to the amount of overtime hours worked
in the five months prior to February 27, 1979, less that worked in the five months
thereafter. Interest at the rate of 12% per annum must be added and should be
computed by assuming that the full amount was due on April 1, 1979.
ORDER
Pursuant to Section 968(5)(C) of the Municipal Public Employee Labor Rela-
tions Law (Act), the Maine Labor Relations Board hereby orders that the Respondent,
Lewiston-Auburn Water Pollution Control Authority, its officers, agents, and
successors, shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Local Union No. 48,
or any other labor organization by taking away benefits, changing
work schedules, or limiting overtime opportunities for any
of its employees or otherwise discriminating against
them in any other manner with respect to their tenure
of employment or other term or condition of employment.
(b) Discrimination against an employee because he has given
any information or testimony in any Board proceeding under
the Act.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaran-
teed in Section 963 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Restore the benefit previously enjoyed by the Lab Technician
of attending certain conventions and seminars on paid time
and make him whole for any such events which he did attend since
April 6, 1979, for which he was not so paid with interest at
12% from the next pay date after the convention.
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(b) Upon request, restore the Lab Technician to a shift which
starts one-half hour after the regular day shift.
(c) Upon request, restore the Lab Technician to a time-in, time-
out basis.
(d) The above paragraphs 2(a), (b) and (c) are to supersede any
inconsistent agreement between the parties regarding the
Lab Technician and shall apply until it is hereafter changed
by full collective bargaining with Local 48.
(e) Pay to Robert G. Belisle the sum to be determined by multi-
plying 150% of his hourly rate on April 1, 1979, by 43.7
hours and adding interest at 12% per annum from April 1,
1979, to payment date.
(f) Notify the Executive Director, in writing, within 20 days
from the date of this Order, what steps have been taken to
comply herewith.
Dated at Augusta, Maine, this 29th day of July, 1980.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Edward H. Keith
Chairman
/s/________________________________________
Wallace J. Legge
Employee Representative
/s/________________________________________
Kenneth T. Winters
Alternate Employer Representative
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