STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-35
Issued: June 26, 1981
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)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. )
)
DEPARTMENT OF HUMAN SERVICES, ) DECISION AND ORDER
STATE OF MAINE, and )
)
STATE OF MAINE, )
)
Respondents. )
____________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
979-H(2) on December 1, 1980 by the Maine State Employees Association (MSEA).
MSEA alleges in its complaint that the Department of Human Services and the
State of Maine (State) violated 26 M.R.S.A. 979-C(1)(A), (B) and (E) by
harassing state employee Diane Richardson, a member of MSEA's Administrative
Services bargaining team. The State filed a response to the complaint on
December 22, 1980, denying that it had violated any provision of the State
Employees Labor Relations Act, 26 M.R.S.A. 979, et seq. (Act).
A pre-hearing conference on the case was h eld on December 29, 1980,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on December 31, 1980 a Pre-Hearing Conference Memorandum and Order,
the contents of which are incorporated herein by reference.
A hearing was held on February 25, 1981, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Zlegenbein and Employee
Representative Wallace J. Legge. MSEA was represented by Shawn C. Keenan,
Esq. and the State by Attorney Linda D. McGill. Full opportunity was given
to examine and cross-examine witnesses, present evidence, and make argument.
Both parties filed post-hearing briefs, which have been considered by the
Board.
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JURISDICTION
MSEA is the bargaining agent within the meaning of 26 M.R.S.A. 979-
H(2) for the state employee Administrative Services bargaining unit. The
State is the public employer as defined in 26 M.R.S.A. 979-A(5). 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. 979-H.
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1) Diane Richardson began work as a Human Services Aide [if in a unit of
the Department of Human Services' Disability Determination Services on
October 6, 1980. The job was a promotion for Richardson, who had been a state
employee for about 4 years. Since the job was a new position for Richardson,
her employment in the position was subject to a six months' probationary
period. Richardson's immediate supervisor was Frances Silsby, while the
Director of Disability Determination Services was Ann DeWitt.
2) In September, 1980, Richardson was elected a member of the bargaining
team for MSEA's Administrative Services bargaining unit. Richardson had been
active in union affairs for some time, having served as a job steward, a
delegate to MSEA's convention, and an alternate member of the Administrative
Services bargaining team. Silsby knew when Richardson was hired that
Richardson was active in union matters.
3) Negotiations between MSEA and the State for collective bargaining
agreements to succeed agreements due to expire on June 30, 1981 began in
November, 1980. Richardson, knowing she would be attending bargaining
sessions as a bargaining team member, asked DeWitt about the policy regarding
leave for negotiations. DeWitt said it would be cheating the taxpayers for
an employee negotiator to be away from work unless the parties were actually
negotiating. DeWitt previously had been a member of an MSEA bargaining team,
and had always worked on negotiating days prior to and after the bargaining
session. Richardson thought she was entitled to 8 hours of administrative
leave for every day a bargaining session was held, so DeWitt checked with the
Governor's Office of Employee Relations. On October 28th, the
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Office of Employee Relations issued a memorandum stating that employees on the
bargaining teams were entitled to be released for the entire day when a
bargaining session was held. DeWitt subsequently sent a note to Richardson
stating she would get 8 hours of administrative leave for every negotiating
day. The parties negotiated one day per week during the month of November.
4) On November 19th, the parties decided to start bargaining 2 days per
week as of the first week in December. On November 20th, Richardson told
DeWitt she would be out of work 2 days a week for negotiations starting in
December. When Silsby learned Richardson would be gone 2 days a week, she
reported to DeWitt that she would not be able to get all the work done. The
workload in the office was extremely heavy, the office was under-staffed, and
there was a mounting backlog of work. Federal regulations require that the
office process its cases within 40 days, but the average time for processing
cases had recently reached 41 days. DeWitt felt that she had to discuss the
problem of the workload with Richardson, so she called Richardson and Silsby
into her office.
5) DeWitt told Richardson the office had too much work, and Richardson
replied, in a somewhat hostile tone, that that was DeWitt's problem. DeWitt
responded that Richardson had to learn her job and that her six months'
evaluation would cover her competency. DeWitt then asked whether the work
was too much for Richardson and whether she would be happier in a less
pressurized situation. Richardson said "no." DeWitt asked why Richardson
was involved with bargaining when she was still a probationary employee who
needed to learn her job, and Richardson explained the election process. The
meeting between DeWitt, Silsby and Richardson lasted 20 to 30 minutes.
As of November 20th, Richardson had kept up with the workload assigned to her.
6) Richardson was upset by the meeting, and later in the day she told
the steward in her office about it. Richardson also called the Office of
Employee Relations and asked its Director to call DeWitt. Later in the day
the Director called Richardson back to say that he had talked to DeWitt and
that everything should be all right.
7) During the afternoon of November 20th, DeWitt called a meeting of the
office clerical staff. DeWitt told the staff that Richardson would be out 2
days a week for negotiations, that she was negotiating for the erhire staff,
and that the staff would have to pick up some of her workload. DeWitt subse-
quently applied for and received a project worker to help out with the work-
load for 21 weeks.
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DECISION
At issue is the question whether the State interfered with, restrained,
or coerced Richardson in the exercise of her Section 979-B rights, in
violation of Section 979-C(1)(A) of the Act.[fn]1 We find that DeWitt, an
agent of the State, did interfere with Richardson's rights as a result of the
November 20th meeting, and order the State to cease and desist from its
violation.
The November 20th meeting with DeWitt and Silsby reasonably tended to
interfere with the free exercise of Richardson's right to participate in
collective bargaining as a member of a bargaining team. Richardson was a new
employee, having worked in the office only about 6 weeks, and DeWitt and
Silsby were her supervisors. Richardson knew DeWitt was displeased with the
fact that she was gone from work one day a week for negotiations, as the two
had in late October discussed the amount of leave Richardson could take for
negotiations. During the November 20th meeting DeWitt asked Richardson
whether the work was too much and whether she would be happy in a less
pressurized situation. DeWitt also asked why Richardson had gotten involved
in bargaining when she was still a probationary employee who needed to learn
her job. These questions reasonably tended to threaten and intimidate
Richardson because they suggested that she could not continue to bargain and
still keep her job. The choice for Richardson implied by such a suggestion
was either to leave the bargaining team or lose a job which she wanted.
We agree with the State that there is no evidence that DeWitt was
motivated by anti-union animus when she questioned Richardson. The record
shows that DeWitt felt frustrated and pressured by the fact that Richardson
would be gone from the office two days a week for negotiations when the office
was already understaffed and the work backlog was mounting. A finding of
interference, restraint, or
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1. Section 979-B states:
"No one shall directly or indirectly interfere with,
intimidate, r estrain, coerce or discriminate against state
employees or a group of state employees in the free exercise of
their rights, hereby given, voluntarily to join, form and
participate in the activities of organizations of their own
choosing for the purposes of representation and collective
bargaining, or in the free exercise of any other right under
this chapter.
Section 979-C(1)(A) provides that the State is prohibited from
"[i]nterfering with, restraining or coercing employees in the exercise
of the rights guaranteed in Section 979-B."
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coercion does not turn on the employer's motive or on whether the coercion
succeeded or failed, however, but is based on "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).
Participating in bargaining is one of the employee rights guaranteed by
Section 979-B. While DeWitt's frustration is entirely understandable,
Richardson's right to participate in negotiations is protected by the Act,
and DeWitt's attempt to "solve" the workload problem by suggesting that
Richardson find a new job or leave the bargaining team was improper. If the
State's administrative leave for negotiations policy creates problems for a
supervisor, the proper procedure for the Supervisor is to attempt to rectify
the situation through the Office of Employee Relations, not to place pressure
on the employee to leave the bargaining team. Attempts by the employer to
discourage an employee from exercising his or her Section 979-C rights
violates Section 979-C(1)(A).
In short, we conclude that DeWitt's questions at the November 20th
meeting reasonably tended to interfere with Richardson's right to participate
in negotiations, in violation of Section 979-C(1)(A).[fn]2 We find nothing
improper about the afternoon meeting on November 20th when DeWitt told the
clerical staff that Richardson was negotiating for the entire staff and that
they would have to pick up some of her workload. The meeting was a proper
attempt by DeWitt to distribute the workload, and cannot be construed as an
attempt to place undue pressure on Richardson. There also is no evidence that
the State discriminated against Richardson in violation of Section 979-C(1)(B)
or refused to bargain in violation of Section 979-C(1)(E). MSEA's allegations
that the State violated these provisions of the Act are hereby dismissed. We
will order the State to cease and desist from interfering with, restraining or
coercing Richardson in the exercise of her Section 979-B rights.
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2. The record contains conflicting testimony about what was said at the
November 20th meeting between Richardson, DeWitt and Silsby and about an
alleged discussion regarding Richardson's status by DeWitt and Silsby
during the afternoon of November 20th. We find it unnecessary to resolve
these conflicts because, accepting only the facts testified to by the
State's witness, we still conclude that the State violated Section
979-C(1)(A).
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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 26 M.R.S.A. Sec. 979-H, it is ORDERED:
That the Department of Human Services and the State of Maine,
and their representatives and agents, cease and desist from
interfering with, restraining or coercing Diane Richardson in
her exercise of the rights guaranteed by Section 979-B.
Dated at Augusta, Maine, this 26th day of June, 1981.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/_____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Wallace J. Legge
Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A.
979-H(7) to seek a review by the Superior Court of this decision by filing a
complaint in accordance with Rule 808 of the Rules of Civil Procedure within
15 days after receipt of this decision.
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