AFSCME v. City of Bangor and John Perry, No. 80-41, affirmed and modified by City of Bangor v. AFSCME and MLRB, CV-80-574, Board Order aff'd 449 A.2d 1129 (Me. 1982). STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-41 ______________________________________ ) COUNCIL NO. 74, AMERICAN FEDERATION ) OF STATE, COUNTY and MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) Complainant, ) ) v. ) ) CITY OF BANGOR, ) DECISION AND ORDER ) and ) ) JOHN PERRY, in his capacity as ) Personnel Director of the City ) of Bangor, ) ) Respondents ) ______________________________________) On April 25, 1980, Council No. 74 of the American Federation of State, County and Municipal Employees, AFL-CIO, (Union) filed a prohibited practices complaint with the Maine Labor Relations Board (Board). The complaint alleges that the City of Bangor and Personnel Director John Perry (City) violated various subsections of 26 M.R.S.A. 964(1) by discharging certain employees, by not granting the employees the rights and benefits provided by the parties' collective bargaining agreement, and by various other actions. The City filed a motion to dismiss and an answer to the complaint on May 14, 1980, denying that it had committed any prohibited practices. A pre-hearing conference on the case was held May 27, 1980, Alternate Chairman Donald W. Webber presiding. On May 29, 1980, Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. Hearings on the case were held June 20 and July 3, 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 Stephen P. Sunenblick, Esq., and the City by Malcolm E. Morrell, Jr., Esq. Full opportunity was given to adduce evidence and to examine and cross-examine witnesses. 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. The Union is a bargaining agent within the meaning of 26 M.R.S.A. 968(5)(B) for a bargaining unit of Oper- ations and Maintenance Division employees in the Bangor Public Services Department. The City of Bangor and -1- ______________________________________________________________________________ Personnel Director John Perry are public employers as defined in 26 M.R.S.A. 962(7). 2. The Union was recognized by the City as the bargaining agent for the operations and Maintenance Division unit a number of years ago. A number of collective bargaining agreements have been negotiated over the years by the Union and the City for the bargaining unit. 3. In March, 1979, representatives of the Union and the City executed a collective bargaining agreement to be effective from March 2, 1979 to December 31, 1980. Article 17(5) of the agreement provides: "Upon the anniversary date of the employee's employment or his most recent promotion, each employee shall be eligible to be advanced to the next step in his rate range. Progression from one step to the next step, as outlined in Appendix "A," shall not be automatic but based on a performance rating and a recommendation from the Operation Maintenance Director. A satisfactory level of performance by the employee is sufficient to warrant a step increase." Appendices A and B attached to the agreement set forth the salary scales for the various job classifications included in the bargaining unit. Appendix A, which contains hourly wage rates effective from January 1, 1979 to December 31, 1979, provides the following 5 salary steps for the "Laborers" job title: A B C D E 3.96 4.08 4.22 4.34 4.51 Appendix B, setting forth the wage rates effective January 1, 1980, provides the following scale for Laborers: A B C D E 4.29 4.4i 4.55 4.67 4.84 4. Article 33(2) of the agreement provides: "2. The parties acknowledge that, during the negotiations which resulted in this agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any bargaining, and that the understandings and agree- ments arrived at by the parties after the exercise of that right and opportunity are set forth in this agreement. Therefore the City and the Union, for the duration of this agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated, to negotiate with respect to any subject or matter referred to, or covered in this agreement, even though such sub- jects or matters may have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this agreement." 5. At some undetermined point in the past, the City started hiring employees for a "Seasonal Laborer" job classification for employment in the Operations and Maintenance Division. For example, in 1974 thirty-four persons were hired as Seasonal Laborers. The Seasonal Laborers did the same jobs performed by the Laborers in the bargaining unit, and were paid the minimum wage, with no fringe benefits. The Laborers were paid according to the salary scales and received the -2- ______________________________________________________________________________ fringe benefits provided in the collective bargaining agreements. 6. By 1976, it was becoming apparent that at least some of the Seasonal Laborers were not being hired on a temporary or seasonal basis, but were being hired throughout the year on a full-time, permanent, on-going basis. Eight of the 23 Seasonal Laborers hired in 1976 worked more than 6 months. At the same time, the number of full- time, permanent workers in the bargaining unit was declining, from nearly 90 employees in the 1974-76 period to approximately 74 employees in the 1977-78 period. 7. On October 27, 1978, the Union filed a petition for unit clarification with the Board, alleging that those Seasonal Laborers who were not employed on a temporary or seasonal basis should be included In the Operations and Maintenance Division bargaining unit. A Board hearing examiner denied the petition, ruling that while some Seasonal Laborers were being employed to perform bargaining unit work on a permanent, on-going basis, the Union had failed to show sufficient changed circumstances as required by 26 M.R.S.A. 966(3). 8. The Union appealed the hearing examiner's decision to the Board. On October 17, 1979, the Board issued a decision in Case No. 79-A-02, finding that the Union had shown sufficient changed circumstances--that starting in 1976 some of the Seasonal Laborers were being employed more than 6 months throughout the four seasons of the year-- to warrant modification of the existing unit. The Board accordingly modified the hearing examiner's determination, ordering that Seasonal Laborers "who are in fact hired on a permanent basis must henceforth be considered part of the unit when they exceed 6 months of employment, as either 'Laborers' or as whatever other existing job classification is most appropriate." Both the City and the Union received their copies of the Board's order on Friday, October 19, 1979. 9. On October 19, 1979, Randy Henderson was fired from his position as a Seasonal Laborer at the City cemetery. Henderson was first hired as a Seasonal Laborer on January 24, 1979. He worked during the winter season, and was terminated from his position on March 23, 1979. He was hired again as a Seasonal Laborer on April 9, 1979, working until he was fired on October 19, or for a con- tinuous period of 6 months and 10 days. Henderson was not told when he was hired on April 9th that he would be working only at the cemetery, or that he would be employed just for the cemetery season. 10. The Monday after being fired, Henderson went to the Per- sonnel Director's office to find out why he had been fired. Perry said that the Union had taken the position that Seasonal Laborers who worked more than 6 months would have to be laid off if no permanent positions were available. Perry added that as a result of the Board's decision in the unit clari- fication case, the City would no longer be employing Seasonal Laborers, but that Henderson would be given preference in future hiring by the City. Perry did not say during this conversation that Henderson had been fired because the cemetery season was over. 11. In March, 1980, Henderson applied for a job in the City cemetery. He talked to both Perry and the foreman at the -3- ______________________________________________________________________________ cemetery about the job, asking Perry whether the labor dispute would have any effect on whether he got the job. Perry indicated that it didn't look good. The foreman said he would check on Henderson's application, telling Henderson to come back in a few days. When Henderson returned, the foreman said that he had been told by the City not to hire any of his old crew back, but instead to hire a whole new crew. At least 6 persons subsequently were hired to work in the cemetery, with the first of the 6 being hired on April 21, 1980. 12. Shortly after the parties received the Board's decision in Case No. 79-A-02, Ross Ferrell, the Union's field representative, spoke to Perry about the decision. Perry mentioned the possibility that some of the Seasonal Laborers might be laid off, but did not tell Ferrell any- thing definite about what the City would do in light of the Board's order. Several days later Ferrell called Perry, asking that Perry let Ferrell know what the City was going to do before any action was taken. 13. On October 26, 1979, Perry fired 12 to 14 of the remaining Seasonal Laborers at a meeting held after work. Ferrell was not contacted by the City prior to this meeting. Perry told the employees assembled at the meeting that as a result of the Board's decision in the unit clarification case, the City was no longer in the Seasonal Laborer "business." Perry also stated that the City was considering 4 options to the Seasonal Laborer system, and that the fired workers would be given preference if an option calling for the hiring of additional employees was implemented. In response to a question from one of the workers, Perry stated that if the Union had not filed its petition for unit clarification, the Seasonal Laborers probably would still have their jobs. Among the Seasonal Laborers fired on October 26th were Jeffrey Bragg, Lawrence Prescott, Allen Standley, and Emery Strout. Ferrell learned of the firings on October 26th, shortly after the meeting, when Prescott and another Seasonal Laborer told him that they had been fired. 14. The City's practice is to pay employees who attend meetings after work their salary for the amount of time spent at the meeting. None of the Seasonal Laborers were paid for the approximately 20 minutes they spent at the October 26th meeting, however. 15. Shortly after the October 26th meeting, Bragg and Strout, both of whom had over six consecutive months of employment as Seasonal Laborers as of October 26, 1979, were hired by the City as Laborers in the Operations and Maintenance Division. Both employees were placed on step "A" of the salary scale for Laborers, and both were placed at the bottom of the seniority list, with their date of per- manent hire being recorded as October 30, 1979. Bragg had been hired as a Seasonal Laborer on April 19, 1977, working without break in employment for the City until October 26, 1979. Strout had been continously employed as a Seasonal Laborer from June 12, 1978. On January 29, 1980, Bragg and Strout and approximately 12 other workers in the bargaining unit were laid off, according to the inverse seniority, due to lack of work. These employees were all recalled to work on April 7, 1980. 16. Neither Prescott nor Standley were immediately rehired by the City after being fired on October 26th. Prescott had been hired as a Seasonal Laborer on November 14, 1978. He worked during the 1978-79 winter, and was laid off on -4- ______________________________________________________________________________ March 23, 1979. He was hired again as a Seasonal Laborer on May 1, 1979, and worked continuously until October 26th. Thus, Prescott worked as a Seasonal Laborer for more than 10 months during the period of less than 12 months from November 14, 1978 to October 26, 1979. 17. Standley was hired as a Seasonal Laborer on February 1, 1979, and was laid off on March 23, 1979. He was rehired as a Seasonal Laborer on May 1, 1979, and worked contin- uously until October 26th. Standley thus worked as a Seasonal Laborer for about 7 1/2 months during the 9-month period from February 1, 1979 to October 26, 1979. On November 26, 1979, Standley was hired as an Automotive Serviceman at the City's Motor Pool at a salary of $3.99 per hour. He resigned from this position on January 28, 1980. 18. Prior to October, 1979, other Seasonal Laborers had been fired by Perry for trying to become members of the bar- gaining unit. In September, 1978, the Union filed a grievance asserting that Seasonal Laborers John Jewell and Donald McKenzie were entitled to receive the wages and fringe benefits provided in the collective bargaining agreement then in effect. Perry told Ferrell that If the grievance was pursued, Jewell and McKenzie would be fired. Ferrell refused to drop the grievance, and on October 13, 1978 Perry fired Jewell, McKenzie, and a third Seasonal Laborer because Perry was "fed up" with the Union filing grievances on behalf of the Seasonal Laborers. After considering his action, Perry rehired the three dis- charged workers on October 30, 1978. The Union also grieved the dismissal of the 3 employees, and on April 19, 1979, the Board of Arbitration denied the employees' grievances on the ground that the grievances were non- arbitrable. 19. Jewell was hired as a Seasonal Laborer on November 17, 1977. On November 6, 1978, he was hired as a temporary Stationary Fireman at the City's steam plant, working throughout the winter until being laid off on April 21, 1979. On April 27, 1979 Jewell was told to report to his former position as a Seasonal Laborer. He did not report for work, and has not subsequently been employed by the City. 20. McKenzie was hired on September 20, 1976. He worked continuously as a Seasonal Laborer, except for the two weeks in October, 1978, when he was fired, until October 15, 1979, when he was hired as a Laborer in the Operations and Maintenance Division. DECISION I. THE MOTION TO DISMISS Pending before us is the City's motion to dismiss, which moves that all prohibited practices alleged in the complaint to have occurred prior to October 25, 1979 be dismissed. Title 26 M.R.S.A. 968(5)(B) provides in pertinent part that "no hearing shall be held based upon any alleged pro- hibited practice occurring more than 6 months prior to the filing of the complaint." Since the Union's complaint was filed with the Executive Director on April 25, 1980, the City's position that we cannot decide any alleged prohibited practices which occurred prior to October 25, 1979 (6 months prior to April 25, 1980) is correct. The City's motion to dismiss -5- ______________________________________________________________________________ all such allegations in the complaint, including all allegations involving Jewell and McKenzie, is granted. It bears noting, however, that all evidence regarding the past events is admissible for purposes of providing background information. The law regard- ing the admissibility of past events is well-settled: where occurrences within the six-month limitations period in and of themselves may constitute prohibited practices, the "past events may be utilized to shed light on the true character of matters occurring within the limitations period." Machinists Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 4i6 (1960).[fn]1 Since some occurrences within the six-month period may in and of themselves constitute prohibited practice--i.e., the events on October 26, 1979 and thereafter--evidence regarding events occurring outside the limitations period is admissible. Thus, while we have dismissed the allegations that the past events constitute prohibited practices, we will consider whether these past events shed light on the prohibited practices alleged to have occurred within the limitations period. II. THE TIMELY ALLEGATIONS There are several allegations of prohibited practices occurring subse- quent to October 25, 1979: 1) the City violated 26 M.R.S.A. 964(1)(A) and (B) on October 26, 1979 by firing those Seasonal Laborers who were public employees, 2) the City violated 964(1)(A) and (B) on October 26, 1979 and thereafter by not treating the Seasonal Laborers who were public employees as members of the bargaining unit, 3) the City violated 964(1)(E) by uni- laterally changing public employees' wages, hours and working conditions on October 26th without bargaining with the Union, and 4) the City violated 964(1)(A) and (B) by refusing to hire Randy Henderson for a cemetery job in March, 1980.[fn]2 We find that all these alleged violations have merit, and order remedies necessary to effectuate the policies of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq. (Act). 1. The Status of Prescott and Standley. The Union contends that four of the Seasonal Laborers fired October 26, 1979--Jeffrey Bragg, Lawrence Prescott, Allen Standley and Emery Strout--were public employees at the time of the firings. The City in effect concedes that Bragg and Strout both were public employees, but urges that neither Prescott nor Standley were public employees because neither had served 6 consecutive months as a City employee. We find that Prescott and Standley both were public employees as defined in 26 M.R.S.A. 962(6) as of October 26th. Prescott worked as a Seasonal Laborer from November 14, 1978 to March 23, 1979, and from May 1, 1979 to October 26, 1979, _______________ 1 The limitations period contained in Section 968(5)(B) is analogous to Section 10(b) of the National Labor Relations Act, 29 U.S.C.A. 160(b). See Teamsters Local 48 v. City of Waterville, MLRB No. 80-14 at 3 (April 23, 1980). 2 The Union also alleges that the City violated Sections 964(1)(B) and (C) by blaming the Union for the firings. While Perry's October 26th state- ment regarding the Union's filing of the unit clarification petition consti- tutes evidence that the employees were fired due to their union involvement, the statement by itself does not amount to interference with employee rights or interference with the Union in violation of Sections 964(1)(B) or (C). We hereby dismiss this allegation. -6- ______________________________________________________________________________ for a total of over 10 months employment during a period of approximately 11 months and 2 weeks. Standley worked from February 1, 1979 to March 23, 1979, and from May 1, 1979 to October 26th, or for about 7 1/2 months during a period of less than 9 months. Both employees thus worked more than 6 months as Seasonal Laborers within one-year periods.[fn]3 We find nothing in Section 962(6)(F) or any other provision of the Act which requires an employee to work 6 consecutive months before being entitled to the rights and protections provided by the statute. The purpose of Section 962(6)(F) is to allow the public employer 6 months in which to determine whether the employee is suited for the job, during which time the employer can discharge the employee or unilaterally change his/her wages, hours and working conditions without being subject to the terms of the Act. Since both Prescott and Standley worked over 6 months as Seasonal Laborers, the purpose as well as the literal language of Section 962(6)(F) is satisfied. To hold that these employees were not public employees would emasculate the Act, for there likely are many employees who work a majority of the months of the year in the same position, yet do not have 6 consecutive months of employment. We believe that the Act is intended to apply to such employees. Prescott and Standley also were public employees because they would have had 6 consecutive months of employment had they not been fired by the City on October 26th. If each had worked one more week, both would have worked 6 consecutive months. Thus, were it not for the October 26th firings, which we determine in this decision to have been unlawful, both employees would have been employed for the consecutive period which the City urges is required. Because the City's unlawful firings prevented Prescott and Standley from acquiring 6 months of consecutive employment, we would find the two to be public employees even if they had not on October 26th already been employed for more than 6 months. In Case No. 79-A-02, we determined that at least some of the Seasonal Laborers were not "seasonal" employees within the meaning of Section 962(6)(G) because they were employed on a year-round basis, performing the same jobs as Laborers during most or all of the seasons of the year. Prescott and Standley are examples of this type of employee, both having worked as laborers during the seasons, with the exception of the month of April, which occurred during their terms of employment. Thus, as determined in Case No. 79-A-02, Prescott and Standley were not Section 962(6)(G) "seasonal" employees. They were as of October 26, 1979 public employees. 2. The October 26th firings. The City violated Sections 964(1)(A) and (B) on October 26, 1979 when it fired Bragg, Prescott, Standley and Strout. The principal is well-established that a discharge violates Section 964(1)(A) and (B) "if partially motivated by the employee's protected activity." NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (9th Cir. 1970); see also NLRB v. Eagle Material Handling, Inc., 558 F.2d 160, 169 (3rd Cir. 1977); _______________ 3 It does not matter, for purposes of determining the employees' status, whether Prescott and Standley were "permanently" discharged on March 23, 1979, or merely laid off subject to recall. The important point is that both were re-employed as Seasonal Laborers shortly after being terminated on March 23rd. -7- ______________________________________________________________________________ Baker Bus Service v. Maine Labor Relations Board, No. CV 80-157 (Me. Super. Ct. Sept. 4, 1980).[fn]4 We think it plain that the discharges were entirely motivated by the employees' efforts to be included in the bargaining unit. The Seasonal Laborers who had over 6 months of employment had since September, 1978, when the Jewell-McKenzie grievance was filed, attempted to secure the wages and benefits accorded members of the unit. In October, 1978, the Union filed its petition for unit clarification, seeking to have the Seasonal Laborers with 6 months tenure included in the unit. All of these organizational and repre- sentational activities are protected by 26 M.R.S.A. 963. That the workers were fired due to their protected activities is con- firmed by Perry's comments to the employees at the October 26th meeting. Perry told the employees that because of the Board's decision in the unit clarification case, which ordered that permanent Seasonal Laborers with 6 months of employment be treated as members of the bargaining unit, the City was getting out of the Seasonal Laborer "business." In response to a question by one of the employees, Perry stated that if the Union had not filed the petition for unit clarification, the Seasonal Laborers probably would still have their jobs. Perry's comments, then, are direct evidence that the City fired the Seasonal Laborers because of the employees' efforts to become members of the bargaining unit. We will order remedies necessary to make the unlawfully discharged employees whole. 3. Failure to treat the Seasonal Laborers as member of the unit. The City also violated Sections 964(1)(A) and (B) when it failed to treat Bragg, Prescott, Standley and Strout as members of the Operations and Main- tenance Division unit. As of October 19, 1979, when the City received our order in Case No. 79-A-02, the City was required to treat the Seasonal Laborers hired on a permanent basis as members of the unit when the employees exceeded 6 months of employment. This the City did not do. Instead, the employees were fired on October 26th. Moreover, when Bragg and Strout were rehired on October 30th, they did not receive the full benefits and rights accorded to other members of the unit. Both were placed at the initial step of the salary scale for Laborers, although, according to Article 17(5) of the contract, they were eligible upon the anniversary date of their employment to be advanced to the next step of the salary scale. Since Bragg had been employed continuously since April 19, 1977, he was eligible, subject to a performance rating and a recommendation from the Operations Maintenance Director, to be placed at step "C" of the salary scale for Laborers. Strout, employed since June 12, 1978, was eligible for the wage rate at step "B" of this scale. Neither employee's performance was evaluated by the City in order to determine whether the employees were eligible for the higher salary rates, however. In addition, both Bragg and Strout were placed at the bottom of the seniority list, with their date of permanent hire being recorded as October 30, 1979. This was not the correct placement of these employees since, as previously noted, their dates of permanent hire were April 19, 1977 and June 12, 1978, respectively. As for Prescott and Standley, neither were even immediately rehired by the City. _______________ 4 Sections 964(1)(A) and (B) are analogous to Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. 158(a)(1) and (3). -8- ______________________________________________________________________________ The City's failure to treat the 4 employees as full-fledged members of the bargaining unit interfered with and restrained the employees in the exercise of their Section 963 rights. The employees were fired, and Bragg and Strout when they were rehired were not given the full rights of other members of the unit, because of their protected union activity. The failure to accord the 4 employees the same working conditions, rights and benefits provided the other members of the unit was a form of retaliation against the employees for their union activities, in violation of Section 964(1)(A). See, e.g., Walgreen Co. v. NLRB, 509 F.2d 1014, 1016-1017 (7th Cir. 1975); Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 at 3-4 (Aug. 24, 1978). The failure to treat the employees as members of the unit also amounted to discrimination in regard to terms and conditions of employment, in viola- tion of Section 964(1)(B). The City's conduct was both motivated by anti- union animus and was inherently destructive of important employee rights. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967); Teamsters Local 48 v. Town of Oakland, supra. Remedies necessary to restore the status quo will be ordered. This allegation regarding the treatment of the 4 employees was timely filed because the Union did not know how the City would treat the employees until October 26th and thereafter. As of October 19, 1979, both the City and the Union knew that permanent Seasonal Laborers who worked more than 6 months were entitled to all the rights and benefits granted to members of the bar- gaining unit. Several days later, Ferrell, the Union representative, asked Perry to let him know what the City was going to do before any action was taken. Ferrell was not given advance notice about the October 26th firings, however, learning of the firings from the employees after the fact. Since Ferrell learned that the City would not be treating the employees as members of the unit on October 26th, the 26th is the date upon which the Section 968(5)(B) limitations period commenced running. 4. The failure to bargain. The general principle is well-established that an employer may not change an employee's wages, hours and working conditions without negotiating such changes with the employee's bargaining agent. See, e.g., State v. Maine Labor Relations Board, 413 A.2d 510, 514-515 (Me. 1980). As of October 19, 1979, Bragg, Prescott, Standley and Strout were members of the bargaining unit, and as such were represented by the Union for purposes of collective bargaining. The Union was not notified before the employees were fired on October 26th, however, and no bargaining occurred over the effects of the firings. The City violated Section 964(1)(E) by failing to notify and bargain with the Union before firing the employees. The effect of a discharge (i.e., regarding severance pay, vacation pay, insurance, re-call, transfer to another department, etc.) is a mandatory subject of bargaining. See, e.g., NLRB v. Allis-Chalmers Corp., 601 F.2d 870, 874-875 (5th Cir. 1979). The Union did not waive the right to bargain over the effects of the firings by entering into Article 33(2) of the contract. In that Article the parties waived the right to negotiate only as to "any subject -9- ______________________________________________________________________________ or matter referred to, or covered in this agreement." See Finding of Fact No. 4. While Article 20(2) of the agreement deals with certain matters regarding discharges, no provision in the contract refers to or covers the effects of discharges. Since the Union did not clearly and unmistakably waive the right to bargain over the effects of the discharges, the City was obligated by Section 965(1) to notify and bargain with the Union before discharging the employees. See, e.g., NLRB v. Auto Crane Co., 536 F.2d 310, 312 (10th Cir. 1976). 5. The refusal to hire Henderson. On October 19, 1979, Perry fired Henderson from his position as a Seasonal Laborer at the City cemetery. Subsequently, Perry told Henderson he had been fired because, due to the Board's decision in the unit clarification case, the City would no longer be employing Seasonal Laborers. Perry also said that Henderson would be given preference in future hiring by the City. At no point did Perry tell Henderson that he had been fired because the cemetery season was over.[fn]5 As of October 19th, Henderson had been employed for more than 6 consecutive months and was a public employee. In March, 1980, Henderson applied for a job in the City cemetery. He asked Perry whether the labor dispute would have any effect on whether he got a job, with Perry responding that "it didn't look good." Several days later, after checking with the City about Henderson's application, the cemetery foreman told Henderson that he had been instructed by the City not to hire any of the old crew, but to hire instead a whole new crew. At least 6 persons subsequently were hired to work in the cemetery. The City's refusal to hire Henderson in March, 1980, violated Section 964(1)(A) and (B). The City knew that if Henderson was hired, he would probably have to be treated as a member of the unit, since he already had more than 6 consecutive months of employment. As previously noted, this result had been achieved as a result of protected union activity. Moreover, Perry indicated to Henderson in March that because of this union activity, Henderson's chances of getting a job "didn't look good." That Henderson was not hired because of the union activity that had taken place is confirmed by the fact that he was fired on October 19th, the very day that the City received our decision in Case No. 79-A-02, because the Union had succeeded in including employees with Henderson's status in the bargaining unit. In short, we think Henderson was not hired because of the City's desire to keep Henderson out of the unit and its general anti-union animus. See, e.g., NLRB v. J. S. Alberici Constructions Co., Inc., 591 F.2d 463, 468 (8th Cir. 1979). _______________ 5 We do not credit Perry's testimony that Henderson was fircd simply because the cemetery season was over. Henderson had worked during the prior winter months, was never told that he was being employed just for the cemetery season, and was never told that he was being discharged because the cemetery season was over. We therefore regard Perry's testimony on this point as pretext. In any event, the Union's allegation that the October 19th firing of Henderson was unlawful is time-barred by Section 968(5)(B). -10- ______________________________________________________________________________ III. REMEDIES Upon finding that a party has engaged in a prohibited practice, we are directed by Section 968(5)(C) to order that party "to cease and desist from such prohibited practice and to take such affirmative action, including rein- statement of employees with or without back pay, 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 prohibited 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 City to cease and desist from engaging in the 4 prohibited practices which it has committed, and to post a notice of its violations on employee bulletin boards. We also will order that the City offer reinstatement to Prescott and Standley to the Laborer jobs which they held on October 26, 1979, or to substantially equivalent employment if these jobs no longer exist, and make these employees, along with Bragg and Strout, whole for any loss of earnings and other benefits caused by the City's unlaw- ful actions. We found that the City committed three prohibited practices involving Bragg, Prescott, Standley and Strout, and we would order the above affirmative action, which is necessary to effectuate the policies of the Act, for any one of these violations. We will also order that Henderson be offered reinstatement and made whole as of April 21, 1980, the date upon which the first cemetery worker was hired. Back pay for the 5 employees is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Loss of pay thus is to be com- puted on the basis of each separate calendar quarter or portion thereof during the period from the City's unlawful actions to the dates of proper offers of reinstatement to Prescott, Standley and Henderson, and proper placement of Bragg and Strout at the salary rates and benefit levels to which they are entitled. The quarterly periods shall begin with the first day of January, April, July, and October. Loss of pay is to be determined by deducting from a sum equal to that which each worker should have earned for each such quarter or portion thereof, the net earnings, if any, from other employment during that period. Net earnings means earnings less expenses, such as for transpor- tation and room and board, incurred by the employees in connection with obtaining other work and working elsewhere than for the City during the quarters in question. Earnings in one particular quarter shall have no effect on the back pay liability for any other quarter. The amount of back pay due Bragg, Prescott, Standley and Strout shall include the approximately 20 minutes which each spent at the October 26th meeting after work. Interest on the back pay is to be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see also NLRB v. George E. Light Board 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 back pay 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. From October 26, 1979 to January 31, 1980, the -11- ______________________________________________________________________________ adjusted prime interest rate was 6%. The rate from February 1, 1980 to the present has been 12%. Each employee is to be made whole at the wage rates and in accordance with the benefits provided for Laborers in the collective bargaining agree- ment. This is necessary because on October 26, 1979 Bragg, Prescott, Standley and Strout were performing the work of Laborers and were entitled to the salary and benefits given to Laborers under the contract. Similarly, if Henderson had not unlawfully been denied employment in March, 1980, he would have been entitled to the wages and benefits provided in the agreement when he commenced work in April, 1980. If the parties execute a successor collec- tive bargaining agreement before the City complies with this order, the wages and benefits for Laborers in the successor agreement shall be applicable as of the effective date of the new contract. Back pay and benefits due are to be computed according to each employee's true date of permanent hire. As previously noted, in the case of Bragg and Strout, these dates are April 19, 1977 and June 12, 1978, respectively. Prescott and Standley were both permanently hired on May 1, 1979, the date from which both workers were employed continuously before being unlawfully discharged. Henderson's date of permanent hire was April 9, 1979, the date from which Henderson worked continuously before being discharged.[fn]6 The back pay due to the employees is to be computed as if each worker had received a favorable performance rating and a recommendation from the Opera- tion Maintenance Director under Article 17(5) of the contract. Because the City has not treated these employees fairly in the past, we believe it would not be fair or proper to require that the amount of back pay due be dependent upon a performance rating and recommendation by management. Under Article 17 and Appendices A and B of the contract, then, the back pay due the employees is to be computed according to the following figures: Bragg Oct. 26, 1979 - Dec. 31, 1979 $4.22/hr. (Step "C" of Appendix A) Jan. 1, 1980 - April 19, 1980 $4.55/hr. (Step "C" of Appendix B) April 20, 1980 - Dec. 31, 1980 $4.67/hr. (Step "D" of Appendix B) Strout Oct. 26, 1979 - Dec. 31, 1979 $4.08/hr. (Step "B" of Appendix A) Jan. 1, 1980 - June 12, 1980 $4.41/hr. (Step "B" of Appendix B) June 13, 1980 - Dec. 31, 1980 $4.55/hr. (Step "C" of Appendix B) _______________ 6 We are aware that the wages, seniority and benefits granted to Seasonal Laborers hired in the past for positions in the bargaining unit have been determined on the basis of the date of hire for the unit position. This practice of the City does not mean, however, that we are precluded from order- ing that the City use the correct date of permanent hire of the workers involved in this case. We express no opinion about whether the City has used the proper date of permanent hire for any other Seasonal Laborers employed in the unit. -12- ______________________________________________________________________________ Prescott and Standley[fn]7 Oct. 26, 1979 - Dec. 31, 1979 $3.96/hr. (Step "A" of Appendix A) Jan. 1, 1980 - May 1, 1980 $4.29/hr. (Step "A" of Appendix B) May 2, 1980 - Dec. 31, 1980 $4.41/hr. (Step "B" of Appendix B) Henderson April 21, 1980 - Dec. 31, 1980 $4.41/hr. (Step "B" of Appendix B) Each employee is to be granted seniority, vacation time, and any other benefit under the contract on the basis of permanent date of hire. Due to lack of work, Bragg and Strout were both laid off without pay, on the basis of inverse seniority, from January 29, 1980 to April 7, 1980. If either worker would not have been laid off had the City properly credited their seniority from the date of permanent hire, then the City is liable for back pay to the employee during the period of layoff. If either or both employees would have been laid off even if the City had correctly recorded their date of permanent hire, then the City is not liable for back pay during the layoff. If Prescott, Standley, or Henderson incurred or incurs any expense, such as medical expenses, which the City has agreed to pay under the collective bargaining agreement, the City shall reimburse the employee the full amount of the City's obligation, plus interest computed in accordance with the formula discussed supra. We will provide a procedure so that we may make a specific determination regarding back pay and benefits due, in the event that the parties are unable to settle these issues 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 Bangor and Personnel Director John Perry, and their representatives and agents: 1. Cease and desist from: a) Discharging or otherwise discriminating against employees employed in the Operations and Main- tenance Division because of their interest in, or activity on behalf of, the Union or any other labor organization. b) Failing to treat all permanent employees who per- form bargaining unit work as members of the unit entitled to all rights and privileges provided by the collective bargaining agreement. _______________ 7 0n November 26, 1979, Standley was hired as an Automotive Serviceman at the City's Motor Pool. He voluntarily resigned from this position on January 28, 1980. We do not believe that Standley's resignation from a City job should toll the City's back pay liability to him, because there is no evidence he would have resigned from City employment had he been treated as a member of the Operations and Maintenance Division unit. Since we do not know whether Standley would have resigned from a Laborer's position in the bargain- ing unit, we see no basis for holding that by resigning from a non-unit job he gave up any rights to reinstatement with back pay to a position in the unit. -13- ______________________________________________________________________________ c) Refusing to hire any former employee who worked for more than 6 months for a position in the Operations and Maintenance Division because of the employee's interest in, or activity on behalf of, the Union or any other labor organization. d) In any other manner interfering with, restraining, or coercing employees employed in the Operations and Maintenance Division in the exercise of the right guaranteed them by Section 963 of the Act. e) Failing to notify and bargain with the Union before discharging members of the operations and Maintenance Division bargaining unit, except when the discharge takes place in accordance with the provisions of Article 20 of the present collective bargaining agreement, or in accordance with similar provisions in successor collective bargaining agreements. 2. Take the following affirmative action necessary to effectuate the policies of the Act: a) Offer Lawrence Prescott and Allen Standley imme- diate and full reinstatement to their former Laborer jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole, along with Jeffrey Bragg and Emery Strout, for any loss of earnings or benefits incurred by being discharged and not treated as members of the bargaining unit in October, 1979, in the manner set forther in the section of this decision entitled "Remedies." b) Offer Randy Henderson immediate and full rein- statement to his former job as a Laborer in the City cemetery or, if this job no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings or benefits incurred by not being hired by the City in March, 1980, in the manner set forth in the section of this decision entitled "Remedies." c) Post in the Operations and Maintenance Division copies of the attached "Notice." Copies of this notice, after being signed and dated by Respondent John Perry, shall be posted by the City immediately upon receipt, and be maintained by it for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the City to ensure that these 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 order, what steps have been taken to comply with the order. Thirty days after the date of this decision and order, if the parties have not agreed on the amount of back pay or benefits due to any employee, the Union may file with the Executive Director and serve on the City of Bangor, for each worker whose back pay and benefits have not been agreed upon: 1. a weekly list of gross back pay claimed, -14- ______________________________________________________________________________ 2. a weekly list of actual earnings from City employment or other employment during the back pay period, 3. a list of expenses incurred in seeking and holding interim employment, 4. a list of any benefits claimed, 5. interest claimed, and 6. 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 for back pay and benefits due, or conduct such further proceedings as are necessary to supplement this order. Dated at Augusta, Maine, this 24th day of September, 1980. MAINE LABOR RELATIONS BOARD /s/___________________________________ Gary F. Thorne Alternate Chairman /s/___________________________________ Don R. Ziegenbein Employer Representative /s/___________________________________ Harold S. Noddin Alternate Employee Representative -15- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 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 discharge or otherwise discriminate against Operations and Maintenance Division employees because of their interest in or activity on behalf of the Union. (2) WE WILL NOT fail to treat all permanent employees who perform bargaining unit work as members of the unit entitled to all rights provided by the collective bargaining agreement. (3) WE WILL NOT refuse to hire any former employee who worked for more than 6 months for a position in the Operations and Maintenance Division because of the employee's interest in or activity on behalf of the Union. (4) WE WILL NOT in any other manner interfere with, restrain or coerce Operations and Maintenance Division employees in the exercise of their rights to engage in union activities. (5) WE WILL NOT fail to notify or bargain with the Union before discharging employees, except when the discharge takes place in accordance with Article 20 of the collective bargaining agreement. (6) WE WILL offer Lawrence Prescott and Allen Standley immediate and full reinstatement to their former Laborer jobs or to substantially equivalent positions, and make them whole, along with Jeffrey Bragg and Emery Strout, for any loss of earnings or benefits incurred by their being discharged and not treated as members of the bargaining unit in October, 1979. (7) WE WILL offer Randy Henderson immediate and full reinstatement to his former Laborer job or to a substantially equivalent position, and make him whole for any loss of earnings or benefits incurred by not being hired by the City in March, 1980. (8) WE WILL within 20 days of the date of the Decision and Order notify in writing the Maine Labor Relations Board at its offices in Augusta, Maine of the steps we have taken to comply with this Decision and Order. CITY OF BANGOR Dated ____________________ By ____________________________________ John Perry Director of Personnel 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. ______________________________________________________________________________