STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-13 ___________________________________ ) 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 -1- ______________________________________________________________________________ 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 -2- ______________________________________________________________________________ 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 -3- ______________________________________________________________________________ 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. -4- ______________________________________________________________________________ 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 _______________ 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). -5- ______________________________________________________________________________ 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 _______________ 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). -6- ______________________________________________________________________________ "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 -7- ______________________________________________________________________________ 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. _______________ 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. -8- ______________________________________________________________________________ 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 _______________ 7 We credit the testimony of Robert Landers in this regard. -9- ______________________________________________________________________________ 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: _______________ 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). -10- ______________________________________________________________________________ (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 -11- 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.