STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-17
Issued: May 28, 1981
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)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees in the )
State of Maine, )
)
Complainant, )
)
) DECISION AND ORDER
v. )
)
CITY OF ELLSWORTH, )
)
Respondent. )
________________________________)
This is a prohibited practices case, filed on September 22, 1980 pursuant
to 26 M.R.S.A. 968(5)(8) by Teamsters Local Union No. 48 (Local 48). Local
48 alleges in its complaint that the City of Ellsworth (City) violated 26
M.R.S.A. 964(1)(A) and (E) by changing the practice of allowing dispatchers
to choose their shifts on the basis of seniority, by requiring a typing test
for the day dispatcher shift, and by denying dispatcher Doug Estep's request
to transfer from the evening shift to the day shift. The City filed an answer
to the complaint on October 14, 1980, denying that it had violated any of the
provisions of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A.
961, et seq.
A pre-hearing conference on the case was held on October 21, 1980,
Alternate Chairman Gary F. Thorne presiding. As a result of this pre-hearing
conference, Alternate Chairman Thorne issued on October 22, 1980 a Pre-Hearing
Conference Memorandum and Order, the contents of which are incorporated herein
by reference.
Hearing of the case was had on December 19, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. Local 48 was represented by Walter
J. Stilphen, Jr., and the City by Thomas C. Johnston, Esq. The parties were
given full opportunity to examine and cross-examine witnesses, introduce
evidence, and make argument. Both parties filed Dost-hearinq briefs, which
have been considered by the Board.
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JURISDICTION
Local 48 is the bargaining agent within the meaning of 26 M.R.S.A.
968(5)(B) for a bargaining unit of police officers and dispatchers employed
by the City. The City is a public employer as defined in 26 M.R.S.A. 962
(7). 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
1) Doug Estep was hired as a police and fire dispatcher by the City in
July, 1978. The City employs 4 dispatchers, three of whom are permanently
assigned to 8-hour shifts, while the fourth works a swing shift. After Estep
worked the midnight to 8:00 a.m. shift for several months, an opening on the
4:00 p.m. to midnight shift occurred. Estep understood that the dispatchers
were entitled to their choice of shifts on the basis of seniority, so he
checked to see whether the more senior dispatcher, Joe Crotty, wanted the
evening shift. Crotty was not interested in the shift, so Estep asked for,
and was assigned to, the evening shift.
2) In the spring of 1980, Jeri Spencer, the dispatcher working the day
shift, resigned her position effective June 1, 1980. Estep preferred to work
days, so, after learning that Crotty did not want the day shift, requested in
writing that he be assigned to the day shift. The Police Chief denied Estep's
request on May 23, 1980, stating that he intended to fill the day shift
temporarily with a college student.
3) Estep appealed the Chief's decision in accordance with the City's
personnel ordinance to City Manager Roger Moody. Moody told Estep that the
City needed a day dispatcher who could type well because of the paperwork
generated during the daytime hours, and that Estep could take a typing test
to see if he could qualify for the shift. Estep declined to take a typing
test in a memorandum dated May 29, 1980 to the City Manager and the Police
Chief. Estep appealed the City Manager's decision to the City Council, which
informed Estep in writing that typing skills were a prerequisite for the day
shift and that Estep could apply for the day position. The City subsequently
advertised the day dispatcher position in the local newspaper, stating that a
typing speed of 40 words per minute was a necessary qualification. A number
of people applied for the job, and several scored over 40 words per minute on
the typing test. One of these applicants has
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been hired for the position as a temporary employee, pending the outcome of
this case.
4) During his attempts to be assigned to the day shift, Estep remarked
to Police Lieutenant William Clark that he was tired of playing games. Clark
responded to the effect that "they are playing games with you because you
slapped the City in the face and voted in the union." Local 48 was elected
the police officers' and the dispatchers' bargaining agent in February, 1980.
During the election campaign, there was much tension between the pro-union
employees and the City. Estep supported the union, a fact which was known by
the City.
5) During the campaign, Clark considered the possibility of trying to
disqualify Estep from voting in the election. Estep had his house up for sale
at the time, and Clark asked Estep's neighbors whether Estep intended to move
from the City. Clark later told Estep that if he was moving, Clark would try
to disqualify him from voting, although there is no residency requirement for
City employees. No attempt was made to disqualify Estep at the time of the
election. Estep felt that the City's refusal to assign him to the day shift
was in retaliation for his support of the Union.
6) Jeri Spencer, the former day shift dispatcher, was hired as a
dispatcher in July, 1975. Prior to being hired by the City, she worked as a
legal secretary, a fact which had a positive influence on the City's decision
to hire her. In 1976 or 1977, the City hired additional dispatchers in order
to provide a 24-hour dispatching service. The City implemented a rotating
shift schedule by which each dispatcher rotated through the four shifts.
The dispatchers did not like this schedule and, after receiving permission
from the City Manager to arrange the shifts the way they wanted, decided to
assign permanent shifts on the basis of seniority. Spencer, the most senior
dispatcher, chose the day shift, keeping this shift until her resignation on
June 1, 1980. The policy of allowing dispatchers to choose their shifts on
the basis of seniority has not been put in writing, but has been consistently
followed in all cases but Estep's.
7) During Spencer's employment as a day dispatcher, the practice grew
up of having her type the Police and Fire Chiefs' correspondence. Prior to
the hiring of Spencer, the City Manager's secretary typed this correspondence.
Spencer would type 3 to 5 letters a day, as well as an occasional report,
transcript or ordinance. Spencer believed that she did this typing as a
favor to the Chiefs rather than as
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part of her duties. The Chiefs believed that Spencer was required to do the
typing as part of her duties as a day dispatcher. By far the most important
aspect of Spencer's job was her dispatching responsibilities; she typed only
during slack periods when she had nothing else to do. Neither the
dispatchers' job description nor a June, 1979 list of dispatchers' duties
compiled by Lieutenant Clark indicate that typing correspondence is a part of
the dispatchers' duties.
8) All of the dispatchers do some typing as part of their regular
duties. For example, Estep types out "incident cards" - 5" by 8" cards
reporting incidents called in to the Police and Fire Departments. None of
the dispatchers do as much typing during their shifts as Spencer did as a day
dispatcher.
DECISION
Presented for decision is the question whether the City interfered with
the free exercise of Estep's Section 963 rights by requiring that he take a
typing test before being assigned to the day shift. We hold that the City
violated Section 964(1)(A) by refusing to assign Estep to the day shift unless
he passed a typing test, and order remedies necessary to effectuate the
policies of the Act.
Prior to Estep's request to be assigned to the day shift, the dispatchers
had always been assigned shifts on the basis of seniority. The dispatchers
had, with the permission of the City Manager, established a system of allowing
the dispatchers to choose their shifts according to seniority. Estep had
transferred from the midnight shift to the evening shift on the basis of this
system. Because Estep was the most senior dispatcher who requested to be
assigned to the day shift, he had a reasonable expectation, based on past
practice, that his request would be granted.
The fact that the dispatchers had always been assigned shifts according
to seniority does not mean that Estep was automatically entitled to the day
shift, however. Inherent in the right to be assigned to a shift is the
condition that the employee be qualified to perform the duties required during
the shift. Among the duties required of the day shift is the typing of the
Chiefs' correspondence. Although typing correspondence is nowhere specified
in writing as being one of the day dispatcher's duties, it is plain that the
practice of having the day dispatcher type correspondence became established
during Spencer's tenure as day dispatcher.
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The fact that Spencer thought she performed this duty merely as a favor to the
Chiefs is immaterial; the important fact is that she fairly regularly typed 3
to 5 letters and other occasional materials for the Chiefs over a period of
several years. By the time Spencer resigned, the typing of the Chiefs'
correspondence had become part of the duties of the day dispatcher.
Since typing correspondence was among the day dispatcher's duties when
Estep requested to be assigned to the day shift, the City did not make any
unilateral changes by refusing to assign Estep solely on the basis of
seniority or by requiring that he be able to type correspondence. While there
was a practice of allowing the dispatchers to choose their shifts according to
seniority, there also was a practice of having the day dispatcher type
correspondence. Since the City made no changes in these practices, the
evidence does not support Local 48's allegations, which we hereby dismiss,
that the City violated Section 964(1)(E).
We reach a different conclusion with regard to the alleged violations of
Section 964(1)(A), however. We conclude that Estep was qualified by his 22
months of experience as a dispatcher to fill the day dispatcher position, and
that the requirement that he take a typing test reasonably tended to interfere
with the free exercise of his Section 963 rights.
The City makes no contention that Estep has not performed his dispatching
duties ably while working the evening and midnight shifts. While typing
correspondence is part of the day dispatcher's job, by far the most important
aspect of the job is the dispatching responsibilities. Indeed, the typing
duty apparently was so unimportant that the City did not list it in the
dispatchers' job description or in Lieutenant Clark's June, 1979 memorandum
detailing each dispatcher's duties. We conclude that Estep, who had nearly
two years of experience as a dispatcher as of June, 1980, was qualified to
perform the responsibilities which comprise the major portion of the day
dispatchers' job.
As for the typing requirement, Estep was performing some typing duties
as the evening dispatcher. While the incident cards which Estep types do not
require as extensive typing skills as does the typing of a letter, we note
that two of the exhibits in the record are memoranda typed by Estep.
Although one of the memoranda contains several typographical errors, we find
that these memoranda show that Estep has sufficient typing skills to perform
the typing duties required of the day shift. In short, the record shows that
Estep was qualified to perform the duties required of the day shift.
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Estep's belief that the City was retaliating against him due to his
support for the union was entirely reasonable. Estep knew the City was
displeased with the fact that he supported Local 48. During the tense
election campaign, Lieutenant Clark questioned Estep's neighbors to see
whether Estep was moving, with the intent of trying to disqualify Estep from
voting. While Estep was attempting to get assigned to the day shift, Clark
told him that the City was playing games with him "because you slapped the
City in the face and voted in the union." Whether this statement was true or
not is not material; the fact is Clark, a supervisory employee, made the
statement to Estep and Estep had reason to believe it was true.
Finally, Estep was given different reasons about why the City would not
assign him to the day shift. The Chief denied the requested assignment on
the ground that he intended to hire a college student, making no mention of
the typing qualification. Subsequently, the City Manager and City Council
denied the request on the ground that Estep needed to take a typing test,
without any reference to a plan to hire a college student. Since Estep had
been told that the City was playing games with him, his refusal to take the
typing test was proper. The different reasons given by the City could make
Estep reasonably think the City was manufacturing reasons for denying the
assignment in order to punish him for his union support, particularly since
he had been told that the City was playing games.
The test for a violation of Section 964(1)(A) does not turn on the
employer's motive or on whether the coercion succeeded or failed, but "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."
NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town
of Oakland, MLRB No. 78-30 at 3 (Aug. 24, 1978). The totality of the City's
conduct - its refusal to assign Estep to the day shift, coupled with Clark's
pre-election activities, his "playing games" comment to Estep, and the
different reasons given for not assigning Estep, reasonably tended to inter-
fere with the free exercise of Estep's rights, guaranteed by Section 963, to
join a union and participate in union activities. In light of this conduct,
Estep's belief that the City was retaliating because of his support for Local
48 is reasonable. We conclude that, considering the totality of the circum-
stances in this case, the City's refusal to assign Estep to the day shift
unless he passed a typing test violated Section 964(1)(A).
Upon finding that a party has engaged in a prohibited practice, we are
directed by Section 968(5)(C) to issue an order requiring the party "to cease
and desist
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from such prohibited practice and to take such affirmative action . . . as
will effectuate the policies of this chapter." We accordingly will order the
City to cease and desist from refusing to assign Estep to a shift which he
requests unless he passed a typing test, assuming a more senior dispatcher
has not requested the shift. Since the City violated the Act by refusing to
assign Estep to the day shift, we order the City to take the affirmative
action of offering Estep the day shift assignment in writing. This offer is
to remain open for a period of 10 consecutive days. If Estep accepts the
offer and at the end of the six months probationary period referred to in
Section 3 of the personnel ordinance has not shown himself capable of
performing the typing duties heretofore performed by the day dispatcher, the
City may reassign him to the evening shift and assign another dispatcher to
the day shift. These remedies will effectuate the policies of the Act.
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 City of Ellsworth, and its representatives and agents,
1. Cease and desist from refusing to assign dispatcher Doug Estep to a
shift which he requests unless he passes a typing test.
2. Take the affirmative action of offering in writing to assign Doug
Estep to the day shift. This offer is to remain open for a period
of 10 consecutive days. If Estep accepts the offer, his assignment
is to be subject to a six months probationary period as discussed
in the text of this decision.
Dated at Augusta, Maine this 28th day of May, 1981.
MAINE LABOR RELATIONS BOARD
The parties are advised of their /s/_______________________________
right pursuant to 26 M.R.S.A. Edward H. Keith
968(5)(F) to seek a review by Chairman
the Superior Court of this deci-
sion by filing a complaint in
accordance with Rule 80B of /s/_______________________________
the Rules of Civil Procedure Don R. Ziegenbein
within 15 days after receipt of Employer Representative
this decision.
/s/_______________________________
Harold S. Noddin
Alternate Employee Representative
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