STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-13
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)
COUNCIL #74, AMERICAN FEDERATION )
OF STATE, COUNTY, AND MUNICIPAL )
EMPLOYEES, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF MILLINOCKET, and )
ITS MANAGER, MR. AYOOB, )
)
Respondents. )
___________________________________)
Council #74, American Federation of State, County, and Municipal
Employees, AFL-CIO, ("AFSCME") filed this prohibited practice complaint on
October 23, 1979. The Town of Millinocket ("Town") and William Ayoob filed a
response on November 14, 1979. Alternate Chairman Gary F. Thorne held a pre-
hearing conference on November 19, 1979, after which he issued a Pre-Hearing
Conference Memorandum and Order dated November 23, 1979, the contents of which
are incorporated herein by reference.
The Maine Labor Relations Board ("Board") held a hearing on December 19,
1979, Chairman Edward H. Keith presiding, with Employer Representative Don R.
Ziegenbein and Alternate Employer Representative Harold S. Noddin. AFSCME was
represented by H. Ross Ferrell; the Town and Ayoob by Daniel T. Rush, Esq.
During the hearing the complaint was amended by substituting a new page number
4 without objection. After the record was closed, the parties submitted
simultaneous post-hearing briefs and reply briefs.
AFSCME's motion made in conjunction with Its post-hearing brief to either
introduce two new documents into the record or to reopen the case for this
purpose was granted in a letter dated February 14, 1980, incorporated herein
by reference.
The complaint alleges that two cases of questioning employees concerning
an AFSCME organization drive and the subsequent transfer of two employees
without notice to new positions shortly thereafter were each prohibited
practices. The Town counters that the questioning of the employees was
innocuous and that the subsequent transfers were solely motivated by business
reasons.
JURISDICTION
Jurisdiction of the Board lies in Section 968(5) of the Municipal Public
Employees Labor Relations Act ("Act"), 26 M.R.S.A. 968(5).
FINDINGS OF FACT
1. AFSCME is a public employee organization. 26 M.R.S.A. 968(5)
(A); 962(2). The Town of Millinocket is the public employer
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and Town Manager William Ayoob is a public employer acting on
behalf of the Town. 26 M.R.S.A. 962(7).
2. AFSCME began an organizing campaign among clerical and technical
workers of the Town when Mary Isaac, a bookkeeper/payroll clerk,
requested blank collective bargaining authorization ("union")
cards for AFSCME and began soliciting among her coworkers sometime
in August 1979. Although she did not hide her organizing activity
from other employees she did nothing to make Town Manager Ayoob
aware of her activity.
3. On October 2, 1979, AFSCME Field Representative H. Ross Ferrell, Jr.
visited Ayoob at the Town Office and presented him with a request
for voluntary recognition of a proposed bargaining unit of town
office employees in a "clerical-technical unit." In a letter of
the previous day Ferrell alleged support of the majority of the
employees in the proposed unit, and stated "we are willing to submit
the signed authorization cards to an impartial third person . . .
in order to make a determination as to majority support." Ayoob did
not decide either yes or not at the meeting.
4. Immediately after the meeting Ayoob approached Cindy S. McLain Perry,
an employee in the Town Office, and spoke to her. Ayoob testified by
affidavit that, while he did not specifically mention union cards, he
did inquire of her about her interest in the union. Perry mentioned
that Mary Isaac had told her about a possible turnover of employees.
When Ayoob denied the rumor, Perry responded that was what she had
heard. Ayoob also testified that she stated that she was confused.
Ayoob then suggested that she start thinking for herself and not to
rely on others. He indicated that she would have an opportunity to
vote on it and that he got along fine with unions.
5. Perry testified by affidavit to substantially the same conversation
except she elaborated on how Ayoob inquired about her interest in
the union, stating that Ayoob asked if she knew anything about
"union cards going around." When Perry responded affirmatively,
Ayoob then asked if she had signed such a card.
6. Ayoob then went to Sally Boutaugh, the Executive Secretary and also
inquired of her interest in the union. According to Boutaugh he
asked her if she had signed an authorization card. When she said
yes, Ayoob asked why. Boutaugh replied that she wanted protection
from layoffs. Ayoob told her that she could not join the union
since she was his confidential secretary. Although Boutaugh implied
that this was stated in the nature of a prohibition by Ayoob, Ayoob
stated that he was just expressing his opinion of the state of the
law regarding the exclusion from public employee labor rights of
"confidential" employees. Although Boutaugh testified that Ayoob
did not threaten her she testified that she got nervous when Ayoob
questioned her and thought that she may as well tell the truth about
signing the union card since she figured he would find out anyway.
7. According to Boutaugh, Ayoob stated that he now knew who the
majority were who had signed cards, i.e., "So you are the three out
of five who have signed cards." Boutaugh asked who were the five
and Ayoob indicated the "two here" (Boutaugh and Isaac) plus the
three across the hall (Perry and two others). When Ayoob related
his version of the conversation he did not address this claim.
8. The next day, October 3rd, Ayoob wrote to Ferrell declining
voluntary recognition, and stating that he did not agree with the
proposed unit. Sometime during the next week Ferrell called Ayoob
to complain about Ayoob's interrogating the employees. Ayoob agreed
not to continue what he had done.
9. On Thursday, October 11th, Ferrell met with Ayoob in the latter's
office for the second time. They discussed Ferrell's proposed
bargaining unit description: Executive Secretary, Bookkeeper/
Payroll Clerk, Assistant Clerk, Dispatcher (Police Department),
Assistant Librarian, and Children's Librarian. Ayoob disagreed on
the
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inclusion of the Executive Secretary and they reached no agreement.
10. The next day, Friday, October 13th, Ayoob told Mary Isaac, the Book-
keeper/Payroll Clerk, that he was transferring her to the job of
Secretary to the Director of Public Works effective Monday, October
15th. The Town had advertised for this position and October 12th
was the closing date for applications. At least two people had
applied for the job but no one was interviewed. Isaac had not
applied for the job. Isaac commented that she could join the union
there but Ayoob told her it was not a unit position. (On October l7th,
Isaac was given a job description for her new position which stated
that the job was a "confidential" position.)
11. On Monday, October l5th, Ayoob handed Boutaugh a letter of the same
date stating that effective 8:00 a.m. that day, Boutauqh was trans-
ferred to the job vacated by Isaac's transfer. Before being promoted
to Executive Secretary two years before, Boutaugh had been the Book-
keeper/Payroll Clerk. The transfer was stated to have no effect on
her current pay and benefits. Boutaugh asked why she was being
transferred. Ayoob gave the reason that he needed a bookkeeper.
According to Boutaugh, Ayoob then told her "now you can join the
union." The Town then advertised for an Executive Secretary.
Although Boutauqh was among those who applied for her old job, she
was not interviewed, and received a form letter rejection which
stated no reasons. It was uncontradicted thaL there had never been
a negative comment about her job performance as Executive Secretary.
12. AFSCME filed this complaint on October 23, 1979.
13. Ayoob explained that he transferred Isaac not for her union
activities, but for two reasons, her serious job attitude problems
and the need for a secretary with bookkeeping skills to begin working
for the Director of Public Works. Certain aspects of Isaac's job
performance had not been satisfactory to Ayoob for nearly two years:
not the quality of her bookkeeping and other job functions, which
were beyond reproach, rather her tendency to overstep the bounds of
her authority and to speak too freely about Town affairs. In the
Spring of 1978 Ayoob orally reprimanded Isaac in his office concern-
ing her talking at the counter in the Town Office for too long and
for discussing Town matters which were outside her scope of
responsibility or which Ayoob preferred to disclose himself. Again
in the Winter of 1978-79 Ayoob orally reprimanded her for similar
matters. On both of these occasions Isaac, who is a very sensitive
person, got upset, left the office, and went home although the work-
day was not yet complete. Ayoob later permitted her to take this
time as sick leave. On July 25, 1979, Ayoob sent Isaac a two-paqe
written reprimand and warning that a continuation of the described
conduct "may result in suspension or termination." Ayoob complained
about: (1) wasting time by talking too much at the office counter,
(2) dispensing information without authority and (3) spending too
much time on the telephone. Ayoob attached a job description for
Isaac's position for the purpose of clearly setting forth the limits
of the areas of responsibility which he expected her to work within.
Isaac replied in a letter dated July 26, 1979, asking Ayoob to
explain these charges in detail and in writing and asking what
rights she had to attempt to clear herself of the charges. Isaac
testified that she felt a personality conflict with Ayoob after this.
14. Isaac received no response to her inquiry from Ayoob. Three weeks
later, on August 11th, she wrote again complaining about the lack of
response and requesting that her grievance over Ayoob's warning
letter be processed to the Personnel Appeals Board under the
authority of the Town Personnel Policy Section 15 (effective
January 1, 1978). The Policy states, in pertinent part: "The
decision of the [Town] Manager shall be final unless the
grievances involves (sic) a policy matter which must be deter-
mined by the Personnel Appeals Board ["P.A.B."]." A month later,
on September l3th, Ayoob responded in a two-paqe letter to Isaac's
July and August letters stating that: (1) his original letter was
sufficiently detailed and in writing; (2) "There is no further action
contemplated if the letter of reprimand is taken seriously and those
types of action mentioned are corrected"; (3) her job description
would be changed to reflect a discrepancy that she had pointed out;
(4) her request to appeal to the P.A.B. was denied because her
grievance was not a policy matter; (5) he had made efforts to under-
stand her situation without
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resort to suspension or dismissal; and (6) she was "on notice
that continued actions of insubordination, disrespect, and the
attitude of isolationism would no longer be tolerated and
that the unauthorized dispensing of information or unauthorized
absenteeism would result in dismissal."
15. In September, perhaps after receipt of this letter, Isaac contacted
Ferrell for AFSCME authorization cards with which to organize the
employees. After they were delivered and Isaac got others to sign
them and submitted them to Ferrell who then came to Ayoob's office
on October 2nd claiming majority status and seeking recognition of
AFSCME. On September 20th Ayoob called Robert Landers, the Director
of Public Works to discuss whether or not he would be willing to
have Isaac work for him. A new wastewater treatment plant went into
operation in September and there was a need both for a secretary to
replace one who had recently given written notice of termination and
for someone with bookkeeping skills who could deal with a billing
system for users that would need to be implemented. There was no
agreement that Isaac would be transferred although they discussed
the issue two or three times in September. Landers at some point
advertised to fill this position with a deadline for applications
of October l2th. A job description for this position that was
provided to Isaac on October 17th stated that the job involved a
"confidential relationship" to the Director of Public Works. Ayoob
had told Isaac on October 12th when he transferred her that it was
not a union position.
16. As of October 11th, when Ferrell and Ayoob discussed the description
of the group of employees for which Ferrell was seeking recognition,
Ayoob had taken no action regarding the transfer of Isaac to the
position of Secretary to Public Works Director. Ferrell at that
time was seeking Isaac's present position (Bookkeeper/Payroll Clerk)
and Boutaugh's position (Executive Secretary) but not Secretary to
Public Works Director. The next day Ayoob notified Isaac that she
was being transferred to a position which he stated at that time
would be out of the unit. He did so with no advance notice to Isaac
of the possibility, and the transfer was effective the very next
working day, Monday, October 15th. Isaac testified that she thought
the transfer was because of her union activities. Ayoob, in con-
trast, testified that he had decided to transfer Isaac a day or so
before Ferrell discussed the proposed unit description and that he
was just carrying out that decision when he notified Isaac the day
after the meeting with Ferrell. Coincidentally, October 12th had
been advertised as the last day for applications for the Secretary
to Public Works Director position. Isaac was thus put into the job
before the close of the final day for submission applications for
the job. There had been at least two applicants at that point.
Ayoob did not claim that the transfer was consistent with the
advertisement.
17. On Monday, October l5th, Ayoob then notified Boutaugh that she was
being transferred effective 8:00 a.m. that day from her present
position as Executive Secretary to fill the vacancy in Isaac's old
position, Bookkeeper/Payroll Clerk. Boutaugh had done this job
prior to her promotion in 1977 to Executive Secretary. Ayoob told
her that she would stay at the same rate of pay. Boutaugh claims
that Ayoob told her that now she could join the union. Ayoob denied
making such a comment. Ayoob did not advertise or otherwise seek
applications for the job. He did, however, advertise for applica-
tions for the job of Executive Secretary. Boutaugh was among
fifteen applicants for the job. Although she had never received a
negative comment in her performance as Executive Secretary, she was
not among the seven applicants who were interviewed and received a
rejection letter from Ayoob which did not state any reasons for
rejection.
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DISCUSSION
AFSCME has charged that the Respondents have violated Sections 964(1)(A),
(B) and (C) by (1) questioning Boutaugh and Perry regarding their interest in
the union, and (2) transferring Boutauqh and Isaac to different jobs because
of union activities. The Respondents counter that the discussions with
Boutauqh and Perry were innocuous in that Ayoob did not threaten or coerce
the employees and that Ayoob was within proper bounds in merely attempting to
discover the basis for discontent and making statements that did not consti-
tute coercion. Respondents also counter that the transfers were motivated
solely by legitimate business purposes. We conclude that the questioning of
Boutauqh and Perry violated Section 964(1)(A) and that the transfer of
Boutauqh violated Section 964(1)(A) and (B). The transfer of Isaac, however,
did not constitute a prohibited practice. Section 965(1)(C) has also not
been violated. See Winthrop Educators Association v. Winthrop School
Committee, MLRB No. 80-05 (Feb. 8, 1980) (at page 7).
1. The questioning of Boutaugh and Perry.
Respondents concede that Ayoob's discussions with these two employees
were inquiries. However, there is sharp conflict as to whether or not Ayoob
asked the individuals whether they had actually signed "union" cards.[fn]1
While we conclude that Ayoob may not have used those specific words, we
conclude that the inquiry was nonetheless made in other language. We find
that Ayoob initiated both discussions with Perry and Boutaugh immediately
after AFSCME representative Ferrell had left his office in the Town office
building where all involved are stationed. We also credit Boutaugh's
testimony regarding Ayoob's statement that he now knew who the three out of
five were who had signed cards.
The first legal issue is what analysis to use in determining whether
this type of questioning violates Section 964(1)(A), that is, whether it
falls within the category of an employee poll or of isolated employee
questioning concerning union preference. If considered an employee poll, it
would be subject to analysis on the basis of the criteria set forth in
Struknes Construction Co., 165 N.L.R.B. 1062 (1967), which was adopted by
the Board in Teamsters Local Union No. 48 v. City of Waterville, MLRB No.
78-28 (July 24, 1978). If not a poll, then the facts would be analyzed in
all the circumstances as to whether the questioning interfered with or
coerced employees in the free exercise of organizational rights. E.g.,
Teamsters Local Union No. 48 v. University of Maine, MLRB No. 78-16
(June 29, 1979).
We conclude that the Struknes criteria should be applied In this case
for the reason that the number of employees questioned (two) and the number
of employee
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1 "Union cards" or "authorization cards" are forms which authorize a union to
act as agent for the purpose of collective bargaining and are submitted to
the Board as a "showing of interest" in support of both a petition for unit
determination, 26 M.R.S.A. 966(1), and a petition for a bargaining agent
election, 26 M.R.S.A. 967(2).
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views discovered (three)[fn]2 is very significant in proportion to the total
number of employees in the unit.[fn]3 Given the fact that only a small
number of employees are involved and that they all work closely together, we
assume that Ayoob probably learned something of the union preferences of most
of the affected employees between the October 2 visit of Ferrell and Ayoob's
letter of October 3 In which he refused voluntary recognition. Cf., A to Z
Portion Meats, 239 N.L.R.B. No. 57, 99 LRRM 1527 (1978). Thus regardless of
the eventual number of employees determined to be in the unit (see Finding
No. 9), the number at the time was approximately 5 or 6 and we therefore
conclude that this questioning was a poll.
In Struknes, the N.L.R.B. stated: "In our view any attempt by an employer
to ascertain employee views and sympathies regarding unionism generally tends
to cause fear of reprisal in the mind of the employee if he replies in favor
of unionism and, therefore, tends to impinge on his Section 7 rights."[fn]4
165 N.L.R.B. at 1062. The N.L.R.B. then detailed the "uncoercive" options
available to an employer faced with a union demand for recognition: (1)
refrain from according recognition; (2) request proof of majority status;
(3) file a petition with the Board or suggest that the union do so; or (4)
polling its employees prior to the filing of a petition for election[fn]5 in
accordance with the following criteria:
"About unusual circumstances, the polling of employees by an employer
will be violative of Section 8(a)(1) of the Act unless the following
safeguards are observed: (1) the purpose of the poll is to determine
the truth of a union's claim of majority, (2) this purpose is communi-
cated to the employees, (3) assurances against reprisal are given,
(4) the employees are polled by secret ballot, and (5) the employer has
not engaged in unfair labor practices or otherwise created a coercive
atmosphere."
Struknes, supra, 165 N.L.R.B. at 1063.
Ayoob's questioning of both employees clearly violates each of these
safeguards and therefore violates Section 964(1)(A). The purpose of the
questioning was never claimed by Ayoob to be the verification of the union's
claim for majority support; whatever the purpose, Ayoob did not explain it to
Boutaugh and Perry although he did initiate the discussions. Although Ayoob
did not disclose his intentions he made obtuse disclaimers of any possible
reprisals with the statement to the effect that he got along fine with unions.
When considered in conjunction with his
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2 Ayoob discovered in questioning Perry that Isaac was the organizer for
AFSCME and we reject Ayoob's testimony that he did not learn of Isaac's
involvement until November 26, 1979.
3 Ferrell did not finalize the exact number of positions he was proposing at
the October 2 meeting, although Ayoob probably understood that five employees
were involved as this is the figure he gave Boutaugh.
4 29 U.S.C. S 157. The parallel provision in the Maine Act is 26 M.R.S.A.
963.
5 "[A] poll taken while a petition for a Board election is pending does not,
in our view, serve any legitimate interest of the employer that would not be
better served by the forthcoming Board election. In accord with long-
established Board policy, therefore, such polls will continue to be found
violative of Section 8(a)(1) of the Act [29 U.S.C. 158(a)(1)]." Struknes
Construction Co., 165 N.L.R.B. 1062, 1063 (1967).
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"suggestion" to Perry that she start thinking for herself, the confused
reaction of Perry, and the nervous reaction of Boutaugh, we conclude that the
assurances against reprisal were inadequate.
Finally, the employees were not polled by secret ballot and the employer
has engaged in a subsequent prohibited practice of unlawful discrimination
against Boutaugh. Indeed this case falls into the classic mold of questioning
of employees regarding union sympathies as a prelude to discrimination on the
basis of the information obtained.
Even if we were to analyze the questioning of Perry and Boutaugh under
the less simplified standard of whether each questioning, in all the circum-
stances, constituted a threat, restraint or coercion, however, we would find
violations. Respondents have cited a few cases where the courts have found
that merely questioning one employee or a few employees regarding union
sympathies was not a violation. E.g., NLRB v. Douglas Division, Scott and
Fetzer Co., 570 F.2d 742 (8th Cir. 1978); NLRB v. Covington Motor Co., 344
F.2d 136 (4th Cir. 1965). We agree that in certain cases, depending on the
facts of each case, isolated questioning which takes place in an uncoercive
manner may not violate the Act. For example, in Teamsters Local Union No. 48
v. University of Maine, MLRB No. 78-16 (June 29, 1979), we held that inter-
viewing an employee about union activities did not violate Section 1027(1)(A)
of the University of Maine Labor Relations Act, 26 M.R.S.A. 1027(1)(A),
[the counterpart of Section 964(1)(A)]. In that case we concluded that the
meeting was uncoercive in light of the "friendly and open working relation-
ship of at least ten years duration" between the employee who was a union
official and the employer representative who asked him questions. In addi-
tion, the contact between the two was frequent and the relationship had been
initiated by the employee who, as a union official, had asked the employer
for an open line of communications for the discussion of employee problems
regarding grievances and other matters.
In contrast, we find a number of factors which lead us to conclude that
these interviews were coercive and threatening. (1) The questioning followed
closely on the heels of the visit by Ferrell which in its quickness could
create the impression that the employer might take some retaliatory action.
See, N.L.R.B. v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939 (2d Cir.
1978). (2) The employees reacted to the questioning of their personal
sympathies in a fearful way. Boutaugh was nervous and was reluctant to
reveal her position regarding the union. See, Teamsters Local Union No. 48
v. University of Maine, MLRB No. 78-16, supra, at 10. She did so, not
because she was comfortable with revealing her union support to Ayoob or
because she had been adequately reassured that there would be no reprisals,
but because she felt that Ayoob would probably discover the facts anyway.
Perry presented a confused attitude to Ayoob who then lectured her about
thinking for herself. This could easily have been viewed as threatening.
(3) Ayoob, who is chief executive of the Town, did not tell the employees
why he was inquiring into their union sympathies. (4) Finally, we conclude
that Ayoob was in the process of determining where the union support was
within his clerical-technical workers and thus each instance of questioning
was part of an effort to get information upon which to consider maneuvering
employees on the basis of their union sympathy to minimize the affect of or
to defeat the organizing effort. Essentially, the subsequent prohibited
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practice committed by discriminating against Boutauqh because of her union
activity, discussed below, is a key factor in the determination that the
questioning was coercive. In fact, the discrimination was based on the very
information obtained through the questioning.
2. The transfer of Boutaugh.
We conclude that Boutaugh was transferred from her position as Executive
Secretary to Bookkeeper/Payroll Clerk because of her union sympathies
revealed in the October 2 questioning incident. Respondents have therefore
violated Section 964(1)(B) by discrimination in a condition of employment and
violated Section 964(1)(A) by interfering with, restraining and coercing
employees in exercising protected labor rights.[fn]6 See, Galaska v. M.S.A.D.
No. 47, MLRB No. 79-63 (Dec. 18, 1979) (if one of the motivating factors for
an act is the employee's union activities, the act violates Sections 964(1)(A)
and (B)).
Here we conclude that the union sympathy of Boutaugh was not only a
factor in the transfer, but that it was the primary, if not the sole, motive.
We reject totally the contention that it was based solely on legitimate
business interests. The legitimate business interest extended only so far as
to require that someone fill the vacancy created in the Bookkeeper/Payroll
Clerk position. However, we find no convincing or even plausible explanation
for the need to transfer Boutaugh into the position (1) at all, (2)
permanently as opposed to temporarily, (3) precipitously, and (4) summarily
and without consultation. Rather, in the context of the previous interro-
gation, Boutaugh's perfect record in her present position as Executive
Secretary, and the timing of the transfer right after Ferrell verified that
he was seeking to include the Executive Secretary (Boutaugh) in the proposed
unit, we are convinced that the transfer was based on her support for the
union.
More specifically, there is simply no plausible, legitimate explanation
for why Boutaugh was transferred into the position. The mere existence of a
vacancy in the position of Bookkeeper did not require that Boutaugh fill it.
In fact, when Boutaugh had been promoted out of the position in the past, she
had trained her replacement while working as Executive Secretary. The same
procedure could have been followed again. If not that, then at least a
temporary assignment to the position could have been directed (if necessary)
pending the hiring of someone using normal posting and bidding procedures.
Notably, while normal posting procedures were followed in every other
case we are aware of, including the filling of the vacancy created by the
transfer of Boutaugh, they were not used here. The mere fact that Boutauqh
was qualified for the job does not alter the inference that Boutaugh was
treated as an exception without explanation.
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6 It is irrelevant whether or not it is ultimately determined that the
employee in the position of Executive Secretary would be held to be a "public
employee" or not per 26 M.R.S.A. 962(6) with respect to either Section
964(1)(A) or (B). The injuries in the event of conduct in violation of
either Section in these circumstances flow not only to the individual
employee but indirectly to all other employees involved in the union
organizing activity. Whether we would reach the same conclusion where the
nonpublic employee status of the discriminatee was not in question at the
time of the discrimination and where the very delicate period of a union
organizing campaign was not involved, we do not now decide.
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An additional factor is the precipitous nature of the transfer. There
was no demonstrated need for the transfer to be effective immediately.
Moreover, the total lack of notice or consultation concerning the move carry
overtones of reprisal. Boutaugh's interest in returning to the job was not
solicited. Rather, despite her perfect record as Executive Secretary, she
was moved without the slightest deference like an inanimate object.
All these considerations point to the fact that Boutaugh's union interest
was the reason for the transfer. We conclude that one of Ayoob's purposes was
to strengthen his chances at having the position of Executive Secretary, his
secretary, excluded from the bargaining unit. Ferrell told him generally on
October 2nd, and specifically on October lith, that he was seeking to have the
tExecutive Secretary included in the unit. Ayoob told Boutaugh on October 3rd
that he thought the position would or should be excluded from the unit; he
also wrote to Ferrell on October 3rd that he disagreed with the proposed unit.
Since the unit status of a secretarial position invariably depends on a
factual determination of whether or not the duties necessarily imply a
confidential relationship to the executive head (Ayoob), it was clear that
Boutaugh would be a key witness in a unit determination. Ayoob could have
viewed this as a liability in terms of the contest over this position.
We conclude that he did, and that he acted to remove a union supporter from a
position he wished to keep out of the bargaining unit, which he would have to
do primarily through the testimony of the person in that position.
The Respondent's argument that Boutaugh was given first consideration for
the Bookkeeper opening turns the concept of personnel relations on its head.
This was not a promotion or a job which Boutaugh expressed any interest in.
In contrast, it was without question a demotion in status. Moreover, the
summary transfer without consultation is left-handed "consideration" at best.
The negative impact of this transfer is not obviated by the fact that
Boutaugh suffered no monetary detriment. While we will not need to order a
financial remedy, there has definitely been a loss of status and dignity
which we will attempt to remedy.
3. The transfer of Isaac.
On initial focus it appears that the timing of the transfer of Isaac is
suspicious. See, e.g., Galaska v. M.S.A.D. No. 47, MLRB No. 79-63
(December 18, 1979); Teamsters Local 48 v. Town of Machias, MLRB No. 79-51
(Nov. 13, 1979). As well, the transfer could be viewed as an attempt to
undermine support for AFSCME by transferring the organizer out of the unit
being proposed. After close scrutiny, being mindful of the fact that we have
rejected Ayoob's proffered motives in other incidents in this case, we
conclude that the transfer of Isaac was based solely on legitimate business
purposes. We are struck by the clear picture of the serious and burgeoning
disciplinary and morale problem that Isaac was responsible for. We believe
that Isaac was moving ever closer to being discharged before any union
organizing effort was made and that Ayoob had set in motion the process of
transferring Isaac out from under his supervisions (a good management
decision) before he knew of her union activity. We thus view the timing of
the Isaac transfer as coincidental to Ferrell's visits and the other union
activity and therefore conclude
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7 We credit the testimony of Robert Landers in this regard.
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______________________________________________________________________________
that Isaac would have been transferred without reqard to Ayoob's knowledge of
her union activity and that the latter was not a factor in his decision.
REMEDY
In accordance with Section 968(5)(C) and In order to restore the
situation as nearly as possible to that which would have resulted but for
the unlawful transfer, we will direct that Boutaugh immediately be offered
unconditional reinstatement to her former position. See, Caribou School
Department v. Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979).
Of course, Boutaugh is not required to accept the offer. We will also enter
a cease and desist order against polling employees, questioning them
concerning their union sympathies, and discriminating in working conditions
because of union activities, particularly by transferring employees.
AFSCME has requested that we also enter a bargaining order on the theory
that the atmosphere has been too poisoned for the conduct of a fair election.
We are empowered to issue such an order. See, Sanford Highway Unit of Local
481 (AFSCME) v. Town of Sanford, _A.2d_ (Me. 1980) (slip opinion at p. 12);
NLRB v. Gissel Packing Co., 359 U.S. 575, 613-15 (1969). Such an order might
be appropriate, even where the union had never obtained majority status,
where the employer's prohibited practices were "outrageous" and "pervasive."
Id. at 613-14. More commonly, a bargaining order is appropriate where an
employer, after refusing to recognize a union on the basis of a card majority,
commits unfair labor practices which make a fair election unlikely. Id.
Although we believe that the prohibited practices in this case had a
significant impact in this very small unit, we do not conclude that the
prohibited practices were outrageous and pervasive. In addition, while we
are concerned about the possible impact that these violations may have had on
laboratory conditions, we do not believe that the holding of a fair election
after the issuance of this order would be unlikely. We hope that this order
will have a salvatory effect on the injuries caused by the violations.[fn]8
Finally, we would reconsider a bargaining order in the event of any additional
unlawful pre-election conduct which might come to our attention.
In order to maximize the salvatory effect of this order, however, we will
also direct the posting of a notice of this order.
ORDER
Respondent Town of Millinocket, its officers, successors, representatives
and agents, and Respondent William Ayoob, Town Manager, shall:
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8 We do not decide for all cases whether the unlikelihood of a fair election
"must be apprised as of the time of the commission of the unfair labor
practices and not currently," Gibson Products Co.. 185 NLRB 362, 363, 75 LRRM
1055 (1970), or whether the likelihood should be assessed as of the time that
the bargaining order would be directed, NLRB v. American Cable Systems, Inc.,
427 F.2d 446, 448, 73 LRRM 2913 (5th Cir.), cert. denied, 400 U.S. 957 (1970).
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______________________________________________________________________________
(1) cease and desist from interfering with, restraining or coercing
employees in the exercise of rights guaranteed in Section 963 of
the Municipal Public Employees Labor Relations Act (hereafter "the
Act"), 26 M.R.S.A. 963, particularly by polling or questioning
employees regarding their union activities or by transferring
employees because of their union activities;
(2) cease and desist from discouraging membership in Council #74
(AFSCME) by discrimination in regard to any term or condition of
employment, particularly by transferring employees because of
their union activities;
(3) make an unconditional offer to Sally Boutaugh of immediate and
full reinstatement to her former position without prejudice to
seniority or other rights or privileges;
(4) post copies of the attached Notice at all work locations of the
employees in the bargaining unit where notices customarily are
posted for a period of 60 consecutive days from the date of
posting, to commence within three days of receipt of this order.
Dated at Augusta, Maine, this 13th day of March 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin Ztd i n
Alternate Employee Representative
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STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Augusta, Maine 04333
NOTICE
NOTICE TO ALL EMPLOYEES
PURSUANT TO
a Decision and Order of the
MAINE LABOR RELATIONS BOARD
and in order to effectuate the policies of the
MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
we hereby notify all personnel that:
(1) WE WILL NOT interfere with, restrain or coerce employees in the
exercise of Rights guaranteed in Section 963 of the Municipal Public Employees
Labor Relations Act (hereafter "the Act"), 26 M.R.S.A. 963, particularly by
polling or questioning emPloyees regarding their union activities or by
transferring employees because of their union activities.
(2) WE WILL NOT discourage membership in Council 74 (AFSCME) by
discrimination in regard to any term or condition of employment, particularly
by transferring employees because of their union activities.
(3) WE WILL make an unconditional offer to Sally Boutaugh of immediate
and full reinstatement to her former position without prejudice to seniority
or other rights or privileges.
TOWN OF MILLINOCKET AND TOWN MANAGER
Dated ___________________________ By _____________________________________
Town Manager
This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289-
2016.