STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 80-26
ISSUED: December 22, 1980
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)
COUNCIL NO. 74, AMERICAN FEDERATION )
OF STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, AFL-CIO, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
BANGOR WATER DISTRICT )
)
Respondent. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on January 18, 1980 by Council 74 of the American Federation of
State, County and Municipal Employees, AFL-CIO (Union). The Union alleges in
its complaint, as amended on April 23, 1980, that the Bangor Water District
(Water District) violated 26 M.R.S.A. 964(1)(A) and (B) by 1) harassing and
disciplining a union activist and 2) issuing false and misleading campaign
propaganda designed to interfere with its employees' rights to a free and fair
representation election. The Water District filed responses to the complaints
on February 7 and April 30, 1980, denying that any of its actions constituted
a violation of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq. (Act).
A pre-hearing conference on the case was held on March 17, 1980,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on March 17th a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
A hearing on the case was held on May 5, 1980, Alternate Chairman Gary F.
Thorne presiding, with Employer Representative Don R. Ziegenbein, and
Alternate Employee Representative Harold S. Noddin. The Union was represented
by H. Ross Ferrell, Jr., and the Water District by Gerald E. Rudman, Esq.
The parties were given full opportunity to examine and cross-examine
witnesses, introduce documentary evidence, and make argument. Both parties
filed post-hearing briefs, which have been considered by the Board.
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JURISDICTION
The Union is a public employee organization within the meaning of 26
M.R.S.A. 968(5)(B). The Water District is a public employer as defined in
26 M.R.S.A. 962(7). The jurisdiction of the Maine Labor Relations Board
(Board) to hear this case and render a decision and order lies in 26 M.R.S.A.
968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1) In March, 1979, the Union began organizing the Water District's
maintenance, operations and service workers. In a March 15, 1979 letter to
the Water District's General Manager, Peter Caldwell, the Union informed the
Water District that employee Ralph McLeod and others were organizing the
union. McLeod was actively involved in the campaign, holding several
organizing meetings in his home.
2) On July 17, 1979, the Union filed a petition for a bargaining unit
determination with the Board, accompanied by a petition and union authoriza-
tion cards signed by 18 of the 23 workers proposed to be included in the
bargaining unit. In August, 1979, the Union filed a petition for a represen-
tation election for the bargaining unit.
3) On November 30, 1979, The Board's Executive Director issued a report
determining an appropriate bargaining unit of maintenance, operations, and
service workers. The Water District received its copy of the unit determina-
tion report on December 5, 1979.
4) On December 6, 1979, McLeod, a Pump Operator at the Water District's
Floods Pond Station, was visited at work by two Water District officials,
Assistant General Manager Arther Libby and Administrative Assistant Dennis
Knowles. Libby and Knowles told McLeod that there was a problem with the
amount of chlorine being added to the water supply, and asked McLeod about the
times when he had taken sick leave at the beginning or end of the work week.
5) On December 11, 1979, Libby issued McLeod a written reprimand for
"unacceptable employee conduct," citing instances occurring during a period of
over 19 months when the flouride or chlorine content of the water was too low
during McLeod's shift (the flouride content was stated to be "consistently
low" for the "whole month" of October, 1979, and the chlorine content was
alleged to be too low on November 9, 1979); when McLeod did not properly
clean his area in the pumping station (5 instances); and when McLeod took sick
leave on the first or last day of the work week
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(6 instances), or reported on his time card that he had worked on a day when
he was in fact out sick (2 days). The reprimand was put in McLeod's personnel
file.
6) McLeod had been employed by the Water District for approximately 8
years. The December 11th reprimand was the first written reprimand he had
ever received. Of all the instances of unacceptable conduct cited in the
reprimand, only one previously had been brought to McLeod's attention.
McLeod is rated by the pumping station's Chief Operator, who testified that
he has no question that McLeod is doing a good job, as the most knowledgeable
and best able operator at the station.
7) There are legitimate explanations or mitigating circumstances
surrounding at least some of the instances of "unacceptable conduct" cited in
the reprimand. For example, the flouride content of the water supply was low
8 times in October, 1979, with 3 of these times occurring during McLeod's
shifts. The flouride content also was low at least 3 times during the Chief
Operator's shifts, but McLeod was the only employee reprimanded for allowing
the flouride content to drop too low. As for the problem of chloride content,
the chloride feeding machines at the pumping station were malfunctioning from
October to December, 1979. In particular one machine was reading 6 or 7
pounds of chloride lower than the amount of chloride actually in the system.
It thus is possible that the low chloride reading on November 9th was not the
fault of McLeod but rather was attributable to the malfunctioning machine.
8) As for the alleged failure of McLeod to properly clean the pumping
station, there are problems with lime filtering throughout the station when a
lime shipment is delivered to the station. The employees do not have vacuum
cleaners to clean up spilled lime, and consequently have a difficult time
cleaning the station after a lime delivery.
9) With regard to the alleged misuse of sick leave, the pump operators
on April 2, 1979 started working three 12-hour shifts one week, followed by
four 12-hour shifts the next week. If an employee is out sick for a day,
there is a 66.6% chance that day will fall on the first or last day of the
three day week, and a 50% chance it will fall on the first or last day of a
four day week. All 6 cited instances of McLeod taking sick leave at the
beginning or end of the work week occurred subsequent to April 2, 1979.
10) As for McLeod submitting time cards showing that he had worked on 2
days when he was out on sick leave, it is possible that McLeod filled out his
time card in advance and subsequently forgot to correct the card when he was
out sick for a
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day. Other operators fill out their time cards in advance and have not
changed the cards to reflect sick days taken. There is no evidence that any
other operator has been reprimanded for submitting an incorrect time card.
11) On December 26, 1979, the Executive Director's designee scheduled a
representation election for the maintenance, operations and service bargaining
unit for 9:00 a.m. on Monday, January 14, 1980.
12) On or about December 28, 1979, the Water District posted a notice
entitled "Policy Regarding Union" next to the Board election notice in the
employees' locker room. The Water District notice, which was signed by
General Manager Caldwell, states that the employer is opposed to unionization
of its employees because "unions have nothing worthwhile or constructive to
offer our employees." The notice states that the Water District will resist
any attempts by a union to force, frighten or coerce employees into joining a
union, and encourages any employee who felt frightened or coerced by a union
to report the matter to management.
13) On or about January 2, 1980, the Water District issued to the
employees a memorandum with copies of Sections 963 and 964 of the Act
attached. The memorandum states that the information contained in the
statutory provisions was necessary and essential in helping the employees
make an intelligent decision in the upcoming representation election.
14) On Thursday, January 10, 1980, the Water District mailed to each
employee in the bargaining unit a six-page letter, signed by Caldwell and
Assistant General Manager Libby. The letter states that unions mean trouble
for both the employees and for management. Among the statements contained in
the letter are the following:
"You should also know that you stand to surrender a great deal of
your individual freedom, should a union be voted in here. Assuming
a union existed here, you would have to work through the union shop
steward to come and talk with management regarding any requests or
special considerations you may wish to have. This demonstrates that
a union comes between the employees and management.
* * *
". . . if a union is voted in you may be required or asked to make a
contribution towards a political campaign, babysit, telephone voters
and/or drive people to the voting polls in support of a candidate or
candidates that you do not wish to see in office."
* * *
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"Initiation fees may run up to $100.00 or even $800.00 in some
instances, depending on what the union wants to charge . . . [I]t
may also be possible for you to be assessed monies to support strike
funds, new staff additions or for funding new union halls or other
union related buildings. You may also be fined for non-attendance
of meetings; and for otherwise failing to obey union bosses. Some
of these fines may be as much as several thousand dollars."
The letter then recites instances of favorable treatment given to employees by
the Water District, specifically naming some members of the bargaining unit
who received beneficial treatment. The letter concludes by urging the
employees to vote for "no representation" at the January 14th election. The
employees received the letter on Friday and Saturday, January llth and 12th.
15) Twenty-two employees voted at the January 14th election. Upon count-
ing the ballots, the Executive Director found that 11 employees voted in favor
of the Union, 10 employees voted for no representation, while the twenty-
second voter wrote the word "No" in the square beneath the "no representation"
choice. The Executive Director determined that the ballot containing the
irregular marking was void, and, since the tally then stood at 11 to 10 in
favor of the Union, certified the Union as the employees' bargaining agent.
16) The Water District appealed the Executive Director's actions to the
Board. On March 31, 1980, the Board issued a Report in Case No. 80-A-02,
affirming the Executive Director's determinations and dismissing the Water
District's appeal. The Water District appealed the Report to the Superior
Court, which affirmed the Board in a decision issued in August, 1980. The
question whether the Union is properly certified presently is on appeal to
the Law Court, Law Docket No. Pen-80-51. Oral argument on the case has been
set for the Court's January, 1981 term.
17) For the week of March 17, 1980, McLeod was assigned to an "in-town"
training program designed to refresh the pump operators' memories about the
Water District's operations in the City of Bangor. McLeod was assigned to
work four 9-hour shifts on Tuesday, Wednesday, Thursday and Friday. The week
prior to the training program McLeod had spoken to Administrative Assistant
Knowles about overtime pay for participating in the training program. Knowles
said he could not authorize overtime for the training program, so McLeod said
he would take the additional hours off during the training program.
18) On Thursday, March 20th, McLeod told the crew foreman that he was
going to take the afternoon off. The foreman understood that McLeod had
received per
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mission to take the time off. McLeod picked up his paycheck and left before
the afternoon work started. On Friday, March 21st, McLeod phoned in sick.
19) On March 25, 1980, Libby suspended McLeod for two 12-hour shifts with-
out pay, and ordered that McLeod receive no pay for the 4-1/2 hours of work
he missed on March 20th. The reason for the suspension was that McLeod did
not receive permission to take time off on March 20th.
DECISION
1. Interference with McLeod's Rights. The Union charges that the Water
District violated Section 964(1)(A) and (B) by issuing McLeod a written repri-
mand on December 11, 1979, and by suspending him without pay in March, 1980.
The Water District took these actions against McLeod, the Union alleges,
because he was a strong supporter of the Union, not because he had engaged in
any substantial misconduct. We agree that the written reprimand constituted
unlawful interference and discrimination, but find that the suspension without
pay was warranted.
The reasons cited by the Water District for issuing the written reprimand
simply do not withstand scrutiny. The record does not show a pattern of poor
performance or misconduct by McLeod. McLeod had been employed by the Water
District for 8 years, and had never before been issued a written reprimand.
The Chief Operator at the pumping station testified that McLeod was doing a
good job, and was the most knowledgeable and best able operator at the
station. Of all the alleged instances of misconduct cited in the reprimand,
only one had previously been brought to McLeod's attention. If the cited
instances of misconduct, which covered a period of over 19 months, were
serious enough to warrant a written reprimand, we do not understand why the
Water District did not warn McLeod about these incidents as they occurred.
Many of the stated reasons for the reprimand are based on unfair,
illogical conclusions or are entirely pretextual. The record shows that the
flouride content of the water was not "consistently low" during McLeod's shift
for the "whole month" of October, 1979, as claimed in the reprimand, but was
low 3 times during McLeod's shift that month. The flouride content also was
low at least 3 times in October during the Chief Operator's shift, and was low
2 other times during other operators' shifts, yet McLeod was the only employee
reprimanded. The low chloride reading during McLeod's shift on November 9,
1979, may have been due to a malfunc-
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tioning chloride feeding machine rather than inattention by McLeod. The Water
District's management must have known that the chloride machines were mal-
functioning during this period, yet there is no evidence that they attempted
to ascertain whether the low reading was the fault of the machine or of
McLeod. Their assumption that McLeod was at fault therefore is unreasonable.
As for the cited instances when McLeod allegedly failed to clean his area
properly, the evidence stands unrebutted that the pump operators have a
difficult time cleaning the station after a lime delivery. While we believe
that McLeod could have been more diligent in performing his cleaning duties,
we do not see that a written reprimand is warranted for lack of diligence in
this area, particularly when the reprimand also purports to be based on many
other instances of misconduct.
The claims that McLeod was misusing his sick leave are unpersuasive
because there was a 66.6% or a 50% chance, depending on whether the work week
was a 3-shift or 4-shift week, that a sick leave day would fall on the first
or the last day of the work week. We do not consider the 6 days of sick leave
which McLeod took in a ten month period to be grossly excessive. If the Water
District is going to allow its employees to take sick leave, then its apparent
expectation that many sick leave days will not occur at the beginning or the
end of the work week is wholly unreasonable, given that the work week only
consists of either 3 or 4 shifts.
The claim that McLeod deliberately falsified his time cards on 2
occasions by showing that he worked when he was out on sick leave is not
supported by the record. It is possible that McLeod filled out these time
cards in advance and inadvertently forgot to correct the cards after he missed
a day on sick leave; there is no evidence that the Water District investigated
the situation to ascertain why the cards did not show that sick leave had been
taken. In addition, the alleged falsification of the time cards occurred over
10 months prior to issuance of the reprimand. If the Water District truly
believed that McLeod deliberately falsified the cards, we would expect it to
act much more promptly to correct the situation. Finally, other operators
have submitted time cards which do not show sick leave days taken, but the
record does not show that any other operator has been reprimanded for
submitting incorrect time cards.
In short, we cannot find that the reasons cited by the Water District
provided sufficient justification for issuing a written reprimand to McLeod.
We conclude that McLeod was reprimanded because the Water District wished to
show McLeod and other union supporters that the Water District could "get
tough" if the employees persisted
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in supporting the Union. The Water District knew that McLeod was a union
activist, having been informed in March, 1979, that McLeod was organizing the
union. The Water District was adamantly opposed to unionization of its
workers, as shown by its pre-election campaign statements. The meeting
between Water District officials and McLeod which resulted in issuance of the
written reprimand occurred on December 6th, just one day after the Water
District received the Executive Director's unit determination report. Once
the Water District received the unit report, we believe that it realized that
a representation election was imminent, and decided to take quick action to
intimidate union supporters. In light of all the facts stated above, we
conclude that the Water District was motivated solely by anti-union animus
when it issued the reprimand.
The reprimand reasonably tended to interfere with the free exercise of
the employees' Section 963 rights, and consequently was a violation of Section
964(1)(A). See, e.g., Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30
at 3 (Aug. 24, 1978); American Freightways Co., Inc., 124 NLRB 146, 147
(1959). The Water District's discriminatory conduct with regard to McLeod
also was inherently destructive of important employee rights - the rights to
organize and support a union - and thus violated Section 964(1)(B). See,
e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967); Teamsters
Local 48 v. Town of Oakland, supra. We will order remedies necessary to
effectuate the policies of the Act.
We reach the opposite conclusions, however, with regard to the March,
1980 suspension without pay. The Water District has shown a legitimate reason
for that action - that McLeod left work without receiving permission on
March 20th. The record shows that McLeod did not receive permission to take
the afternoon off, and thus was absent without leave. We do not consider the
two-day suspension without pay to be grossly inappropriate for the misconduct
which occurred. The Union's allegation that the suspension without pay
violated the Act is meritless, and is hereby dismissed.
2. Interference with the Employees' Rights to a Free and Fair Election.
A number of statements in the Water District's January 10, 1980 letter to the
employees reasonably tended to interfere with or coerce the employees in the
exercise of their right to a free choice at the January 14th election, and
accordingly constitute serious violations of Section 964(1)(A). See, e.g.,
NLRB v. Gissel Packing Co. 395 U.S. 575, 618-620 (1969); Texaco, Inc. v. NLRB,
436 F.2d 521, 524-525 (7th Cir. 1971); Dal-Tex Optical Co., Inc., 137 NLRB
1782, 1786-1787 (1962).
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Several of the statements are patently false or misleading, and could
serve no other purpose than to coerce the employees into voting against the
Union. For example, the assertion that the employees "stand to surrender a
great deal of your personal freedom" if the Union was elected is false. The
fact that employees are represented by a union hardly means that the employees
cannot individually talk to management about special problems, as claimed
in the letter; there simply is no basis in fact or in law for such a state-
ment.[fn] The statement clearly is designed to undermine the employees'
support for the Union by leading them to believe incorrectly that they would
have to clear everything with the steward before talking to management. False
statements that employees will have to go through the union in order to talk
to management unlawfully interferes with the employees' organizational rights.
See, e.g., Tipton Electric Co., 242 NLRB No. 36 (1979); Levi Strauss & Co.,
172 NLRB 732, 749 (1968).
Similarly, the statement that the employees may be "required" to
contribute to or work on behalf of a political candidate whom they did not
support is false. No employee could be required to join the Union, Churchill
v. S.A.D. #49 Teachers Association, 380 A.2d 186, 192 (Me. 1977), and the
Union could not force its members to make involuntary donations of money or
time to any candidate in any event. The Water District did not make it clear
in the letter that no employee would have to join the Union.
Even more egregious are the Water District's claims that the workers
could be fined "several thousand dollars" for "non-attendance of meetings;
and for otherwise failing to obey union bosses," and that initiation fees
could run up to $800.00. Again, any employee could decide not to join the
Union, thereby avoiding any questions about non-attendance of meetings and
initiation fees. Moreover, there is not a shred of evidence that the Union
has ever fined a member for failing to attend meetings, or that it even
requires an initiation fee. The statements thus are not mere "demonstrable
economic consequences," as claimed by the Water District, but rather are bald,
inflamatory misrepresentations, whose only purpose could be to dissipate
employee support for the Union. Misrepresentations regarding union dues,
assessments and initiation fees are consistently held to interfere with
employees'
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1. For example, the law guarantees employees the right to present grievances
on their own to management, "without the intervention of the bargaining
agent." 26 M.R.S.A. 967(2).
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representational rights. See, e.g., Essex Wire Corp., 188 NLRB 397, 410-411
(1971).
An additional coercive element was interjected into the campaign when the
Water District specifically named those employees in the bargaining unit who
had in the past received favorable treatment. Contained in the discussion
about the benefits granted to these employees is the implied threat that
employees would no longer receive beneficial treatment if the Union was
selected. This "message" would be particularly clear to the named employees.
Pre-election statements which reasonably tend to threaten employees with loss
of benefits if they select a union violate Section 964(1)(A). See, e.g.,
Council 74, AFSCME v. M.S.A.D. No. 1, MLRB No. 80-04 at 5-6 (Feb. 29, 1980);
Plastronics, Inc., 233 NLRB 155, 156 (1977).
Other misleading and/or threatening statements and implications in the
January 10th letter - that selecting a union will mean strikes, that "present
good relations" will "break down" if a union is elected, and that certain
employees were on a "vendetta" - also are coercive. In addition, the
December 28th notice posted by the Water District is highly questionable in
that it falsely suggests that the Union was trying to frighten or coerce the
employees into joining the Union.[fn]2 We see no need to make specific
findings on all these points, however, having concluded that the substantial
falsehoods and misrepresentations outlined above constitute serious violations
of Section 964(1)(A).
The Water District's arguments that the January 10th letter was proper
are unpersuasive. The argument that there is no evidence that the Water
District had an unlawful intent or that the letter had an unlawful effect on
the workers miscomprehends the nature of Section 964(1)(A). Unlawful motive
or whether the coercion succeeded or failed are not elements in a Section
964(1)(A) violation:
". . . interference, restraint, and coercion . . . does not turn
on the employer's motive or on whether the coercion succeeded or failed.
The test is whether the employer engaged in conduct which, it may rea-
sonably be said, tends to interfere with the free exercise of employee
rights under the Act."
American Freightways Co., Inc., supra at 147; Teamsters Local 48 v. Town of
Oakland, supra at 3. As we have found, the test for a Section 964(1)(A)
violation has been
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2. The memorandum issued to the employees on or about January 2, 1980 was
neutral, merely pointing out to the employees the rights of the employer
and the employees under Sections 963 and 964. There accordingly is
nothing unlawful about this memorandum.
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met many times over by the statements in the January 10th letter.
There also is ample evidence that the Water District did act with an
unlawful motive and that its improper conduct did have an unlawful effect on
the employees. First, the only possible motive underlying the release of the
false and misleading information was to scare or coerce the employees into
voting against the Union. The Water District was opposed to unionization of
its employees, as it stated in the notice it posted on December 28th, and its
actions can only be seen as improper attempts to implant its opposition into
the employees. Second, the timing of the release of the letter left the
employees and the Union with insufficient time to check the veracity of and
correct the falsehoods and misrepresentations. The employees received the
letter in the mail on Friday and Saturday, January 11th and 12th, and the
representation election was held at 9:00 a.m. on January 14th. One or
two days over the weekend was not enough time to correct the many misrepresen-
tations contained in the six-page letter. The nature of the material in the
letter and the timing of the release of the letter compel us to conclude that
the Water District unquestionably was acting with an unlawful motive to
influence the election.
The evidence that the Water District's misconduct had an effect on the
employees is that the Union's majority had been dissipated to 11 of 21
employees, with a twenty-second employee casting a void ballot, by the time
of the election. The Union submitted cards and a petition signed by 18 of
the 23 employees in the bargaining unit when it submitted its petition for a
unit determination. The fact that at least 6 of 18, or one-third, of the
initial union supporters had changed their minds by the time of the election
is evidence that the Water District's unlawful action had its intended effect.
Even without this evidence, it would be difficult to believe that the
misrepresentations in the Water District's letter would not have a signifi-
cant effect on the employees.
The Water District's argument that its statements were protected by the
First Amendment of the United States Constitution is not persuasive because
"a threat of retaliation based on misrepresentation and coercion [is] without
the protection of the First Amendment." Gissel Packing Co., supra at 618.
Coercive statements in violation of Section 964(1)(A) are not protected by
the First Amendment. The way for the Water District properly to exercise its
First Amendment rights is to "avoid coercive speech simply by avoiding
conscious over-statements [it] has reason to believe will mislead [its]
employees." Id., at 620.
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We will order remedies necessary to effectuate the policies of the
Act.[fn]3
3. Remedies. Upon finding that a party has engaged in a prohibited
practice, we are instructed in Section 968(5)(C) to order the party "to cease
and desist from such prohibited practice and to take such affirmative action
. . . as will effectuate the policies of this chapter." "A properly designed
remedial order seeks 'a restoration of the situation, as nearly as possible,
to that which would have obtained' but for the unfair labor practice."
Caribou School Dept. v. Caribou Teachers Association, 402 A.2d 1279, 1284
(Me. 1979), quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
We accordingly will order the Water District to cease and desist from
interfering with, restraining, coercing and discriminating against employees
who are union supporters, and from making false and misleading statements to
its employees. We also will order that the Water District take the affirma-
tive action of removing the December, 1979 reprimand from McLeod's personnel
file, and of posting copies of the attached notice.
We also find that the Water District's pre-election Section 964(1)(A)
violations completely destroyed the laboratory conditions necessary to hold
a free and fair representation election on January 14th. Conduct violative
of Section 964(1)(A) "is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an election." Dal-Tex Optical
Co., supra at 1786-87. Moreover, the Water District's substantial falsehoods
and misrepresentations clearly violated the "well-established standard" that:
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3. We hereby dismiss the allegation that the Water District's General Manager
attempted to prevent the Union's representative from inspecting the
polling place prior to the January 14th election, as there is no evidence
supporting this allegation. We also dismiss the Union's May 2, 1980 amend-
ment to its complaint. This amendment was not timely filed, being filed on
May 5, 1980, the day of the hearing of the case, and is not supported by any
evidence in the record in this case. The allegation set forth in the May 2nd
amendment - that the Water District refused to bargain with the Union in
violation of Section 964(1)(E) - will be decided in another prohibited
practice case filed by the Union against the Water District, Case No. 81-15.
We also hereby dismiss the Water District's contention that the complaint
should be dismissed for failure to include a declaration in accordance with
Rule 4.02 of the Board's Rules and Procedures. This contention was not timely
raised, being mentioned for the first time in the Water District's brief.
The Water District also has not shown that it was prejudiced in any way by
the Union's alleged failure to comply with the Rule.
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"[A]n election should be set aside only where there has been a
misrepresentation or other similar campaign trickery, which in-
volves a substantial departure from the truth, at a time which
prevents the other party or parties from making an effective reply,
so that the misrepresentation, whether deliberate or not, may
reasonably be expected to have a significant impact on the
election."
Bausch & Lomb, Inc. v. NLRB, 451 F.2d 873, 876 (2nd Cir. 1971), quoting
Hollywood Ceramics Co., 140 NLRB 221, 224 (1962).
Setting aside the January 14th election and ordering a new election would
not be a proper remedy, however, because the Union won the election, receiving
11 of the 21 valid votes cast. Moreover, the Water District's substantial
unfair labor practices preclude the possibility of conducting a fair and free
election anytime in the near future, as it would now be a difficult task to
separate fact from fiction in the employees' minds, given the Water District's
substantial misrepresentations.
We are empowered to order an employer to recognize and bargain with a
union without an election where the union once possessed support of a majority
of the employees and the employer's unlawful interference and coercion
"have the tendency to undermine majority strength and impede the election
processes." Gissel Packing Co., supra at 614; see also Texaco, Inc., supra
at 525; NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 51-52 (9th Cir. 1970).
Here the Union possessed majority support, shown by the facts that a majority
of the employees in the bargaining unit signed authorization cards and a
petition, and that a majority of the employees casting valid ballots on
January 14th voted for the Union. Additionally, as we previously found, the
Water District's unlawful actions undermined this majority support and
destroyed the conditions necessary for a fair election.
We consequently conclude that a bargaining order is an appropriate remedy
in this case. This remedy will restore the status quo - support for the Union
as the bargaining agent by a majority of the employees - as it existed when
the Water District committed the prohibited practices. We will order the
Water District to recognize and, upon request, bargain collectively with the
Union as the exclusive bargaining agent of the employees in the Maintenance,
Operations and Service bargaining unit since July 17, 1979, the date upon
which the Union first showed that it had obtained the support of the majority
of the workers in the unit. See, e.g., Bighorn Beverage, 236 NLRB 736, n.2
(1978). We would order this remedy even if the Union had lost the January
14th election. See, e.g., NLRB v. Daybreak Lodge Nursing and Convalescent
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Home, Inc., 585.F.2d 79,.82 (3rd Cir. 1978); Bandag, Inc. v. NLRB, 583 F.2d
765, 773 (5th Cir. 1978).
The bargaining order will of course be vitiated if the Law Court in Law
Docket No. Pen-80-51 upholds the Executive Director's certification of the
Union as bargaining agent as a result of the January 14th election. Issuance
of a bargaining order is appropriate at this time, however, because the Water
District must recognize and bargain with the Union from the date upon which
it receives this Decision and Order to the time when the Law Court issues its
decision. Moreover, if the Law Court overturns the Executive Director's
certification, the Water District nonetheless must recognize and bargain with
the Union for a reasonable period of time. This is the remedy necessary to
effectuate the policies of the Act when the employer's unlawful actions have
destroyed the conditions necessary for holding a free and fair election.
ORDER
On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 968(5), it is hereby ORDERED:
That the Bangor Water District, and its representatives and agents:
1. Cease and desist from:
(a) Reprimanding or otherwise disciplining or discriminating
against employees because of their support for the Union
or for any other labor organization.
(b) Making false or misleading statements to its employees so
as to interfere with, restrain, or coerce the employees in
the exercise of their organizational and representational
rights.
(c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of rights guaranteed them
by Section 963 of the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act:
(a) Remove immediately the December 11th reprimand, as well as
any and all references to this reprimand, from Ralph McLeod's
personnel file.
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(b) Recognize and, upon request, bargain collectively with
Council 74, American Federation of State, County and
Municipal Employees, AFL-CIO, as the exclusive bargaining
agent since July 17, 1979 of the employees in the Water
District's Maintenance, Operations and Service bargain-
ing unit.
(c) Post at its facilities copies of the attached Notice.
Copies of the Notice, after being signed and dated by
General Manager Peter Caldwell, shall be posted immediately
by the Water District, and shall be maintained by it for
60 days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
The Water District shall take reasonable steps to insure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Executive Director, in writing, within 20 days
from the date of this Decision and Order, of the steps the
Water District has taken to comply with this Order.
Dated at Augusta, Maine, this 22nd day of December, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Gary F. Thorne
Alternate Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)
(F) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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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 reprimand or otherwise discipline or discriminate
against employees who are union supporters because of their support for
Council 74, AFSCME or for any other labor organization.
(2) WE WILL NOT make false or misleading statements to our employees so
as to interfere with, restrain, or coerce our employees in the exercise of
their organizational and representational rights.
(3) WE WILL NOT in any other manner interfere with, restrain or coerce
our employees in the exercise of rights guaranteed them by Section 963 of the
Act.
(4) WE WILL remove the December 11, 1979 reprimand, as well as any and
all references to this reprimand, from Ralph McLeod's personnel file.
(5) WE WILL recognize and, upon request, bargain collectively with
Council 74 of the American Federation of State, County and Municipal
Employees, AFL-CIO, as the exclusive bargaining agent since July 17, 1979 of
the employees in the Maintenance, Operations and Service bargaining unit.
BANGOR WATER DISTRICT
Dated: _______________ By:_________________________________
Peter Caldwell General 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.