STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 8O-33
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TEAMSTERS LOCAL UNION NO. 48 )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
)
v. )
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CITY OF WATERVILLE ) DECISION AND ORDER
)
and )
)
ROBERT W. PALMER, )
City Administrator, )
)
Respondents. )
_______________________________)
On March 6, 1980, Teamsters Local Union No. 48 (Local 48) filed a
prohibited practices complaint alleginq that the City of Waterville, et al.
(City) violated 26 M.R.S.A. 964(1)(A) and (B) by changing certain work
rules, threatening certain clerical employees, and discontinuing the clerical
workers' longevity pay plan. The City filed an answer on March 24, 1980,
denying that its actions had violated any of the provisions 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 April 15, 1980, Alternate
Chairman Donald W. Webber presiding. As a result of the pre-hearing
conference, Alternate Chairman Webber issued on April 17, 1980 a Pre-Hearinq
Conference Memorandum and Order, the contents of which are incorporated
herein by reference.
A hearing on the case was held May 14, 1980, Alternate Chairman Webber
presiding, with Employer Representative Don R. Ziegenbein and Employee Repre-
sentative Wallace J. Legge. Local 48 was represented by Richard R. Peluso,
and the City by James E. Millett, Esq. Full opportunity was given to adduce
testimony and introduce documentary evidence. Both parties filed post-hearing
briefs, which have been considered by the Board.
JURISDICTION
The jurisdiction of the Maine Labor Relations 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. Local 48 is a public employee organization and the bargaining
agent within the meaning of 26 M.R.S.A. 968(5)(B) for a
bargaining unit of clerical workers employed by the City. The
City and City Administrator Robert Palmer are public employers
as defined in 26 M.R.S.A. 962(7).
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2. In July, 1979, some of the City's clerical workers
began discussing the possibility of unionizing in order to
try to resolve their dissatisfaction with City wages and
job classifications. Irene Pion, a Bookkeeper/Clerk in
the City's Finance Department, located in City Hall, called
Local 48 and asked for some authorization cards. In late
July, Pion began soliciting City clerical workers and cus-
todians to sign the cards.
3. City Administrator Palmer was aware of the organizational
activity, as he asked Pion during this period if she was
soliciting members for a union. When Pion responded affirma-
tively, Palmer told her she could not discuss union business
while she was in City Hall, not even during lunch breaks. On
September 7, 1979, some of the employees met with an official
from Local 48. A petition for a election was filed with the
Maine Labor Relations Board, and at a representation election
held January 3, 1980, Local 48 was certified as the bargaining
agent for a bargaining unit of City clerical workers, and a
unit of custodians.
4. In December, 1979, Palmer, in accordance with a decision by
the City's Mayor, directed that skeleton crews work in City
offices on the day before Christmas. The heads of the various
City departments decided who was to work that day. Pion and
another clerical employee worked in the Finance Department
office, which has a staff of 3 persons, including the head of
the Department. The employees worked for 3 or 4 hours in the
morning, then were allowed to go home. The employees who worked
on December 24th were paid regular pay for the full day and were
not given compensatory time off. Employees who did not work
that day were also paid their regular salary for the day. In
the 8 years that Pion worked for the City, employees had never
before been required to work on December 24th. The usual
practice was that City employees would get the same holidays
granted to State employees.
5. On January 6, 1980, Palmer held a meeting for the clerical
workers' supervisors to discuss the fact that the workers were
now represented by a bargaining agent. On January 7th, Pion's
supervisor, who was concerned that Pion was not completing her
work because she was out of her office so often, told Pion not
to leave her office to deliver mail or other materials to other
departments. Pion was instructed to call the other offices
whenever she had something to deliver, and someone would come to
Pion's office to pick up the material. Previously, Pion had
always delivered the mail and other documents from her office
to the other departments in City Hall in person.
6. Pion also was told that Palmer might install a time clock which
the employees would have to punch, and might change the employees'
work week from 35 to 40 hours. Neither the time clock requirement
nor the 40 hour work week were implemented, however. At the time
of the hearing of this case, these two topics were among the issues
being discussed by the parties in contract negotiations.
7. On January 16, 198O, the clerical workers learned that they would
no longer be receiving longevity pay from the City. City Adminis-
trator Palmer had on January l6th issued a memorandum to depart-
ment heads stating that the City's employee policy allowed longe-
vity pay only to "full-time non-union employees." Under the
longevity pay plan, employees who worked 10 years or more for the
City received an additional $12.50 per week, while employees who
worked 20 years or more were paid an additional $17.50 per week.
Three employees in the clerical bargaining unit - Mrs. Cote, Mrs.
Giroux and Mrs. Vigue - lost their longevity payments as of
January 3, 1980 as a result of the City's action.
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8. The City's longevity pay plan was implemented in
June, 1971. Initially, the plan applied to
"administrative personnel," with no distinction
being made between union and non-union employees.
In June, 1977, the City's Civil Service Board reviewed
the policy and provided that the plan would include
"all full-time administrative employees, without exception."
In December, 1978, the City Council adopted a resolution
providing that "the longevity pay policy granted certain
full-time administrative and clerical personnel be ex-
tended to all full-time non-union employees of the city."
There is no evidence that any of the clerical workers
knew they would lose their longevity payments once they
selected a bargaining agent.
DECISION
Local 48 charges that the City violated Section 964(1)(A) and (B) by 1)
requiring some of the clerical workers to work the day before Christmas, 1979,
2) restricting Pion to her office and threatening to make the clerical workers
punch a time clock and work a 40 hour week, and 3) discontinuing payment of
longevity pay for clerical workers included in the clerical bargaining
unit.[fn]1 We find that the City's requirement that the employees work on
December 24, 1979 and its termination of the longevity pay plan were
prohibited practices, and order remedies necessary to effectuate the policies
of the Act.
1. Requiring the employees to work on December 24th. We have said in
many cases that the test whether an employer's action violates Section 964(1)
(A) "is whether the employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee rights under the
Act." See, e.g., Teamsters Local 48 v. City of Calais, MLRB No. 80-29 at 6
(May 13, 1980); Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 at 3
(Aug. 24, 1978). This test is in accord with that employed by the National
Labor Relations Board. See, e.g., Cooper Thermometer Co., 154 NLRB 502, 503,
n. 2 (1965). The employees had not been required to work on the day before
Christmas for at least the past 8 years, with the City's practice being to
give its employees the same holidays granted to state employees. December 24,
1979 was a holiday for state employees.
Because requiring the workers to work the day before Christmas repre-
sented a break in past practice, and because this change in practice occurred
just days before the January 3rd representation election, we find that the
requirement tended to interfere with the free exercise of the employees'
rights, guaranteed by Section 963, to choose a bargaining agent. The evidence
is not sufficient to show that the change in practice was justified by legi-
timate business reasons. The clerical workers could reasonably view the
requirement that they work as a sign of employer displeasure with the fact
that they had filed an election petition, and as an implied threat that things
would become harder for them if they voted in the union.
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1 At the close of the hearing, Local 48 moved to amend its complaint to
include an allegation regarding the City's failure to pay Pion for a day when
she was absent due to car troubles. Local 48 also alleges in its brief that
Palmer's interrogation of Pion regarding her union activities was a violation
of the Act. Since these two allegations were not raised in the complaint or
at the pre-hearing conference, and were not fully litigated at the hearing,
they are hereby dismissed. It is incumbent upon a complaining party to
investigate its case and raise all allegations prior to the hearing.
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The requirement thus tended to interfere with and coerce the employees in the
exercise of their guaranteed rights, and accordingly was a violation of
Section 964(1)(A). See, e.g., Walgreen Co. v. NLRB, 509 F.2d 1014, 1016-1017
(7th Cir. 1975).
The requirements also violated Section 964(l)(B), for it amounted to
discriminatory conduct - making the employees work on a day which for the
past 8 years had been a holiday - which was inherently destructive of
important employee rights - the right to choose freely a bargaining agent.
See, e.g. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967);
Teamsters Local 4P v. Town of Oakland, supra at 3-4. We will order the City
to cease and desist from engaging in these prohibited practices, and to
restore the practice of granting its clerical workers the same holidays
received by state employees, until such time as this practice is changed
through collective bargaining with the workers' bargaining agent.
2. Restricting Pion to her office and threatening the workers. We find
no merit to the allegations that the City unlawfully restricted Pion to her
office and threatened the clerical employees by stating that a time clock
would be installed and the work week changed from 35 to 40 hours. While
imposition of the work rule as regards Pion is highly suspect, particularly
since Pion was the leading union activist, the City's action was justified by
legitimate business considerations. Pion's supervisor was concerned that
Pion was not completing her work because she was out of her office so often.
Given these legitimate concerns, the supervisor's order that Pion not deliver
mail or other materials to other offices was permissible.
As for the alleged threats, we do not see that the statements regarding
the time clock or the 40 hour work week rise to the level of being coercive
or threatening. See, e.g., Teamsters Local 48 v. University of Maine, MLRB
Nos. 79-16, et al. at 11 (June 29, 1979). The thrust of these statements, we
believe, was that the City would be taking the position during negotiations
that a time clock and a 40 hour work week should be implemented. This reading
of the statements is borne out by the fact that the time clock and 40 hour
work week were not unilaterally implemented by the City, which likely would
have been a prohibited practice, but instead were raised as proposals by the
City during negotiations. Given these circumstances, the statements did not
amount to "threats" which could reasonably tend to interfere with the free
exercise of employee rights.
Since we conclude that neither the order restricting Pion to her office
nor the supervisor's statements violated the Act, we hereby dismiss Paragraph
4(B) of the complaint.
3. Discontinuance of the longevity pay plan. The City's termination of
the longevity pay plan shortly after the clerical employees had selected Local
48 as their bargaining agent unlawfully interfered with the free exercise of
the employees' rights, and amounted to discrimination in regard to a condition
of employment.
We have no doubt that at least some City officials, such as the Chairman
of the Civil Service Board, intended that the plan apply only to clerical
personnel and other employees not represented by bargaining agents. However,
none of the City documents dealing with the plan so state in unambiguous
terms. The
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Civil Service Board's June, 1977 position was that the plan "include all
full-time administrative employees, without exception." In December, 1978 the
City council adopted a resolution providing that the longevity plan "granted
full-time administrative and clerical personnel be extended to all full-time
non-union employees of the City." It thus is impossible to tell from official
City documents whether or not the plan would continue for clerical employees
who unionized. The lack of clarity is revealed by evidence that at least
some City officials were unsure, and understandably so, as to exactly which
employees were eligible for the plan. It also appears that many department
heads learned for the first time that the plan applied only to non-union
workers on January 16, 1980, when City Administrator Palmer so informed them
in a memorandum.
There is no evidence that any of the clerical workers knew or expected
that the longevity pay plan would terminate once they selected a bargaining
agent. Since the intent of the Civil Service Board and City Council was
unclear or unknown even to some City officials and department heads, it is
reasonable that the intent was also unclear or unknown to the clerical
employees. Because the employees did not know that they would lose their
longevity payments when they selected a union, the abrupt termination of the
plan reasonably tended to interfere with the free exercise of their Section
963 rights. The employees could reasonably view the unexpected action by the
City as a form of retaliation for selecting a union. This "message" from the
City would have an interfering or coercive effect on the workers as they
prepared to enter into negotiations for their first contract with the City.
In addition, the City's action had a discriminatory effect in that at
least three members of the clerical workers' unit - Mrs. Cote, Mrs. Giroux
and Mrs. Vigue - lost their longevity payments. This result would have the
effect of discouraging membership in Local 48, as the employees would believe
they lost the benefit because they had opted to unionize.
We therefore conclude, consistent with federal precedent, that
discontinuance of the longevity pay benefit violated Section 9640)(A) and (B).
See, e.g., Midwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB,
564 F.2d 434, 445-446 (D.C. Cir. 1977); Winn-Dixie Stores, Inc., 224 NLRB
1419, 1419 (1976). We will order the City to cease and desist from changing
the longevity pay plan or any other pay plan for the clerical workers, and
to restore immediately the longevity pay plan for clerical workers.
In order to restore the status quo and make the affected employees whole,
see Sanford Highway Unit v. Town of Sanford, 411 A.2d 1010, 1016 (Me. 1980),
Mrs. Cote, Mrs. Giroux, Mrs. Vigue and any other member of the clerical
workers bargaining unit who was entitled to longevity pay after January 3,
1980 must be paid amounts equal to the longevity payments they should have
received.
On January 3, 1980, when the payments terminated, employees who had
worked 10 or more years for the City received an additional $12.50 per week,
while employees with 20 or more years employment received an additional
$17.50 per week. The amount owed each worker is to be computed in accordance
with these figures, or in accordance with whatever new figures were
established if the City modified the plan subsequent to January 3, 1980.
Interest on the amount owed to each
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employee is to be computed as prescribed in Florida Steel Corp., 231 NLRB 651
(1977); see also NLRB v. George E. Light Boat Storage, Inc., 373 F.2d 762,
766 (5th Cir. 1967). Thus, interest is to accrue commencing with the last
day of each calendar quarter of the liability period on the total amount then
due and owing at the adjusted prime interest rate then in effect, and
continuing at such rate, as modified from time to time by the Secretary of
the Treasury, until the City has complied with this order. The adjusted prime
interest rate from January 3, 1980 to January 31, 1980 was 6%, while the rate
from February 1, 1980 to the present has been 12%.
We will provide a procedure so that we may make specific determinations
regarding total amounts of longevity pay due, in the event that the parties
are unable to settle this issue on their own.
ORDER
On the basis of the foregoing findings of fact and decision, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by 26 M.R.S.A. 968(5), it is ORDERED:
That Respondents City of Waterville, City Administrator Robert W. Palmer,
and their representatives and agents:
1. Cease and desist from:
a) Requiring members of the clerical workers' bargaining unit
to work on days designated as holidays for state employees,
until such time as the issue of holidays is settled through
negotiations with the clerical workers' bargaining agent.
b) Changing the longevity pay plan or any other pay plan for
clerical workers, until such time as the issue of pay plans
is settled through negotiations with the clerical workers'
bargaining agent.
c) In any other manner interfering with, restraining or coercing
its clerical employees in the free exercise of their rights
guaranteed by Section 963.
2. Take the following affirmative action necessary to effectuate the
policies of the Act:
a) Restore the longevity pay plan for clerical workers immediately,
unless the issue of longevity pay has already been settled in
negotiations with the clerical workers' bargaining agent.
b) Make Mrs. Cote, Mrs. Giroux and Mrs. Vigue and any other member
of the clerical workers' bargaining unit denied longevity pay
after January 3, 1980 whole for the amount of longevity pay lost,
with interest, in the manner set forth in this decision.
c) Notify the Executive Director, in writing, within 20 days from
the date of this order, of the steps that have been taken to
comply with this order.
Thirty days after the date of this decision and order, if the parties
have not agreed on the amount of longevity pay due to any employee, Local 48
may file with the Executive Director and serve on the City of Waterville, for
each worker whose longevity pay has not been agreed upon:
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1. an affidavit from each employee stating the date upon which
the employee was hired for full-time employment by the City
of Waterville,
2. a weekly list of longevity pay claimed,
3. interest claimed, and
4. documents and/or affidavits supporting each item.
The City will have fifteen days from such filing to respond with
documents and/or affidavits bearing on each disputed item. The Board will
thereafter issue a supplemental order specifying the amount of longevity pay
due, or conduct such further proceedings as are necessary to supplement this
order.
Dated at Augusta, Maine this 13th day of October, 1980.
MAINE LABOR RELATIONS BOARD
/s/___________________________________
Donald W. Webber
Alternate Chairman
/s/___________________________________
Don R. Ziegenbein
Employer Representative
/s/___________________________________
Wallace J. Legge
Employee Representative
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