STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-52
Issued: November 19, 1981
________________________________
)
NORTHERN AROOSTOOK TEACHERS )
ASSOCIATION, )
)
Complainant )
)
vs. )
)
M.S.A.D. #27 BOARD OF DIRECTORS ) DECISION AND ORDER
)
and )
)
BERNARD PELLETIER, Principal )
Fort Kent Elementary School, )
)
Respondents. )
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This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on May 6, 1981, by the Northern Aroostook Teachers Association
("Union"). The Union alleges that Bernard Pelletier and the unnamed
respondent Emery Labbe, acting in their capacities as agents or employees of
the M.S.A.D. #27 Board of Directors ("Employer") , did violate 26 M.R.S.A.
964(1)(A), (B), and (C) by attending, remaining, taking notes and making
comments at a Union meeting and, further, by evaluating the performance of
one teacher for five consecutive days, when no other teacher was evaluated
for a similar length of time. The Employer filed a response to the Union's
complaint moving to dismiss the same on the grounds that it fails to state a
claim upon which relief may be granted, denying that the Employer's actions
or those of its agents or employees for which it is vicariously responsible
violated any provisions of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. 961, et seq. ("Act"), and alleging that the Union violated 26
M.R.S.A. 964(2)(A) by interfering with, restraining or coercing a public
employee in the exercise of his rights under the Act and by interfering with,
restraining or coercing a public employer in the selection of its representa-
tive, for purposes of collective bargaining and the adjustment of grievances.
A pre-hearing conference in this matter was held on May 29, 1981,
Alternate Chairman Donald W. Webber presiding. As a result of the pre-
hearing conference,
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Alternate Chairman Webber issued a Pre-Hearing Conference Memorandum and
Order, dated June 4, 1981, the contents of which are incorporated herein by
reference. A hearing was held on June 24, 1981, Alternate Chairman Gary F.
Thorne presiding with Alternate Employer Representative Thacher E. Turner and
Alternate Employee Representative Harold S. Noddin. The Northern Aroostook
Teachers Association was represented by Roger Kelley, Northern Maine UniServ
Director, MTA/NEA, and the M.S.A.D. #27 Board of Directors by Harry R.
Pringle, Esq. The parties were given full opportunity to examine and cross-
examine witnesses, introduce documentary evidence and make argument. Both
parties filed appropriate post-hearing briefs which were duly considered by
the Board.
JURISDICTION
The Northern Aroostook Teachers Association is the certified bargaining
agent for all personnel employed by M.S.A.D. #27 who spend fifty (50%) percent
or more of their working time engaged in teaching. The M.S.A.D. #27 Board of
Directors and Bernard Pelletier, in his capacity as Principal of the Fort Kent
Elementary School, are public employers 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
Upon review of the entire record, the Maine Labor Relations Board
("Board") finds:
1. That the Northern Aroostook Teachers Association, affiliated with
the Maine Teachers Association and the National Education Association, is
the certified bargaining agent for all personnel employed by the M.S.A.D. #27
Board of Directors who spend fifty (50%) percent or more of their working
time engaged in teaching.
2. That the M.S.A.D. #27 Board of Directors is the duly elected public
employer as defined in 26 M.R.S.A. 962(7).
3. That Paul R. Kelly is now and at all times relevant hereto has been
the Superintendent of Schools for M.S.A.D. #27, maintaining a business address
of 69 Pleasant Street, Fort Kent, Maine.
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4. That Bernard Pelletier is now and at all times relevant hereto has
been the Principal of the Fort Kent Elementary School and that, in the afore-
said capacity, he is an agent or employee of the M.S.A.D. #27 Board of
Directors.
5. That Emery Labbe is now and at all times relevant hereto has been the
Assistant Principal of the Fort Kent Elementary School and that, in the afore-
said capacity, he is an agent or employee of the M.S.A.D. #27 Board of
Directors.
6. That Patricia Dow is now and at all times relevant hereto has been
an M.S.A.D. #27 elementary school teacher and president of the Union.
7. That, on March 30, 1981, Patricia Dow scheduled a meeting with the
Fort Kent Elementary School teachers to be hold at 3:30 p.m. on March 31,
1981 in the science lab at the aforementioned school. The purpose of the
meeting was to inform said teachers of the Union Executive Committee's planned
course of action in response to Principal Pelletier's derogatory statements
concerning teachers as reported in the Bangor Daily News on March 24, 1981.
8. That, with the absence of Principal Pelletier from school and without
knowing the source thereof, Assistant Principal Labbe read the announcement of
the meeting, mentioned in paragraph 7 hereof, over the public address system
of the aforementioned school, on March 30, 1981.
9. That, sometime prior to 3:30 p.m. March 31, 1981 and without notice
thereof to the administration, the aforementioned meeting was moved from the
science lab to the library, for the same time and date as previously
scheduled.
10. That, at 3:25 p.m. on March 31, 1981 upon arriving in the library,
Patricia Dow encountered Principal Pelletier and observed Assistant Principal
Labbe, who were both already in the library.
11. That Patricia Dow, with the intent of asking the Principal and
Assistant Principal to leave the room before the beginning of the afore-
mentioned meeting, equivocally informed the Principal that a meeting was about
to be held, asked whether he was staying therefor, and related that it might
be personally embarrassing to him to remain, since the subject thereof would
be his comments about teachers as reported in the newspaper.
12. That, upon learning the purpose of the meeting, Principal Pelletier
decided to remain therefor.
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13. That at no time, either prior to nor during the course of said
meeting until the event noted in paragraph 17 hereof, was it ever stated that
the gathering was a Union meeting.
14. That, at the outset of the meeting and while the letter noted in
paragraph 15 hereof was being read, teacher Nathaniel Crosby interrupted
Patricia Dow and asked whether the meeting was for teachers only, to which
Mrs. Dow responded that Mr. Pelletier and Mr. Labbe wished to attend.
15. That once the meeting was convened, Patricia Dow read a letter, which
the Union Executive Committee drafted in response to the Principal's comments
in the newspaper; questions were asked by those in attendance, including a
question from Nathaniel Crosby about teacher evaluations; and said questions
were directed by Patricia Dow to the Principal.
16. That the Principal responded to the questions mentioned in paragraph
15 hereof.
17. That, approximately 20 minutes after the meeting began, Henry Carbone,
a Union Executive Committee member and a teacher at Fort Kent Community High
School, stated: "I request the honored guests to leave so that we can get on
with [Northern Aroostook Teachers] Association matters." Principal Pelletier
responded: "We are not guests here, Mr. Carbone. We're home."
18. That shortly after Principal Pelletier's response noted 17 hereof,
some of the teachers in attendance at the meeting departed therefrom,
immediately followed by Principal Pelletier and Assistant Principal Labbe.
19. That at no time during the said meeting did Assistant Principal Labbe
take notes.
20. That, for the two academic years prior to April 1, 1981, Principal
Pelletier had received complaints from teachers and from a parent concerning
the inordinate amount of time which Mr. Crosby's students spent engaged in
silent reading. Mr. Pelletier and Mr. Labbe had, in walking past Mr. Crosby's
room during Mr. Crosby's reading classes, observed a great deal of silent
reading by the students.
21. That in response to said complaints and as a result of said observa-
tions, Principal Pelletier did, on several occasions prior to April 1, 1981,
ask Mr. Crosby to inform him when a new reading lesson was to begin, in order
that the Principal might observe said lesson being taught in its entirety.
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22. That from April 6 through 10, 1981, Principal Pelletier evaluated
Mr. Crosby's teaching of a complete reading lesson. No other teacher has, in
recent years, received five (5) consecutive days of evaluation by Principal
Pelletier.
23. That by letter dated April 14, 1981, Patricia Dow requested, on
behalf of the Union Executive Committee and after discussing the same with
Superintendent Kelly, to be placed on the agenda of the April 24th meeting of
the M.S.A.D. #27 Board of Directors. Said request was made for the purpose
of asking said Board of Directors to reprimand Principal Pelletier for his
statements mentioned in paragraph 7 hereof.
24. That by further letter dated April 14, 1981, the Union's Executive
Committee charged Principal Pelletier with "unethical and unprofessional
conduct," as a result of his statements noted in paragraph 7 hereof, and
requested that the M.S.A.D. #27 Board of Directors reprimand the Principal
therefor. A copy of said letter was forwarded to the Principal's immediate
supervisor, Superintendent Kelly, and to the members of the aforesaid Board
of Directors.
DISCUSSION
The Union's first allegation of a violation of the Act by the Employer
centers around the attendance by the Principal and the Assistant Principal at
a meeting on March 31, 1981. There is no factual dispute as to whether the
administrators attended the meeting, however, the attendant circumstances are
very much in contention. In Teamsters Local 48 v. University of Maine,
M.L.R.B. Nos. 78-16 and 20, at p. 13 (6/29/79), we adopted and followed the
surveillance rule promulgated by the National Labor Relations Board and
subsequently approved by the federal courts. N.L.R.B. v. Aero Corp., 581 F.2d
511, 512-513 (5th Cir. 1978) and N.L.R.B. v. Speed Queen, 469 F.2d 189, 191
(8th Cir. 1972). Under this surveillance test, attendance at union meetings
by the employer, its officers, agents, or management employees, without
invitation to do so from the union, clearly violates Section 964(1)(A) of the
Act. In this case, however, the nature of the meeting in question was
patently ambiguous. The notice of the meeting, which was given to the
Assistant Principal to be announced over the public address system on
March 30, 1981, made no reference to the Union and, even had the Union been
mentioned therein, the site of the meeting was later changed without notice
to the administration. Just prior
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to the convening of the gathering, Mrs. Dow asked the Principal whether or
not he was staying for the meeting and proceeded to relate that remaining
could be embarrassing to him, since his comments to the newspaper were the
subject thereof. This discourse by Mrs. Dow, which was euphemistically
described in the Union's brief, p. 2, as being "a diplomatic question indi-
cating to Mr. Pelletier that he should not attend," was equivocal at best.
A reasonable man could well have construed said question as an invitation to
attend the meeting. No mention was made, either before nor at the outset
thereof, that the assembly was a Union meeting, therefore, the administrators
were reasonable in their belief that the group was a convention of the Fort
Kent Elementary School teachers and not a Union meeting. Furthermore, once
the meeting got underway, the chair directed the assemblage's questions to
the Principal who fielded the same. This latter fact further corroborated the
administrators' conclusion that they had been invited to attend. Finally, at
the first mention of the Union, noted in paragraph 17 of our findings of fact,
the administrators promptly left the meeting. We do not wish to sanction
surveillance of union activities by employers, however, under the facts in
this case we do not conclude that the actions of the Employer's agents or
management employees violated Section 964(1)(A) of the Act.
The Union alleges that the employer violated Section 964(1)(B) of the Act
by evaluating teacher Nathaniel Crosby for five consecutive days, shortly
after the March 31, 1981 meeting. At said meeting, Mr. Crosby asked whether
the gathering was for teachers only and also asked the Principal about the
District's teacher evaluation system. Mr. Crosby was the only teacher at the
Fort Kent Elementary School whose performance was evaluated for five
consecutive days. In Lewiston Police Department, International Brotherhood
of Police Officers Local 545 v. City of Lewiston, et al., M.L.R.B. No. 79-64
(12/18/79), we set forth the two-tiered standard applied to evaluate whether
or not a particular act is violative of 26 M.R.S.A. 964(1)(B). We stated
therein as follows:
"The test for a violation of Section 964(1)(B) is whether there
was discrimination which had as its purpose the discouragement
or encouragement of union activities. A purpose need not be
proved, however, where the discriminatory conduct has the natural
consequence of such a result or where it was inherently destruc-
tive of important employee rights. See N.L.R.B. v. Great Dane
Trailers, Inc., 388 U.S. 26, 34 (1967). Where the adverse effect
of the discriminatory conduct is comparatively slight, an anti-
union motive must be proved if the employer has come forward with
evidence of legitimate and substantial justifications for the
conduct. Id." Ibid., at p. 5.
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The Employer's conduct in this case was neither inherently destructive of
important employee rights nor was its natural consequence the discouragement
or encouragement of union activity. Teacher evaluations are routinely and
periodically conductedby administrators in this particular school system.
The conduct, therefore, does not rise to the level necessary for evaluation
under the first level of the above test. What was suspect about the
Employer's conduct was its timing, the evaluation coming as it did on the
heels of the March 31st meeting; its duration; and the fact that only
Mr. Crosby was evaluated for more than one day in any single evaluation
period. The employer has, however, fully justified its actions in connection
with this evaluation. The timing of the evaluation after the meeting was
merely coincidental, since the fourth quarterly evaluation had, in past years,
been held at this point in the academic year. The duration and uniqueness
of Mr. Crosby's evaluation was warranted, in light of the numerous complaints
which the Principal had received from other teachers and from a parent as well
as by the personal observations of the Principal and the Assistant Principal
concerning the amount of time Mr. Crosby's reading students spent in silent
individual reading. Applying the balancing test, between employee and manage-
ment rights, Lewiston, supra, at p. 6, to the facts herein, we hold that the
Employer's evaluation of Mr. Crosby, at the customary time and based upon
numerous complaints concerning Mr. Crosby's performance, was not in contra-
vention of Section 964(1)(B) of the Act.
The Union's third allegation, of violation of the Act by the Employer, is
that the two factual situations discussed above constitute a transgression of
26 M.R.S.A. 964(1)(C). As we have often stated, the test for a violation of
said statutory section is as follows:
"[Section 964(1)(C)l of the Act is directed at the evil of too
much financial or other support of, encouraging the formation of,
or actually participating in, the affairs of the union and there-
by potentially dominating it."
Teamsters Local 48.v. City of Calais, M.L.R.B. No. 80-29, p. 5 (5/13/80),
Local 1599, IAFF v. City of Bangor, et al., M.L.R.B. NO. 80-24, p. 3, n.1
(11/6/80). The facts in this case clearly do not constitute a violation of
Section 964(1)(C).
A further issue before us is whether the Union, by requesting the
Employer's Superintendent and Board of Directors to reprimand Principal
Pelletier for his statements mentioned in paragraph 7 of our findings of fact,
violated Section 964(2)(A) of the Act. The Employer avers that said Section
was contravened as follows:
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1. The Union's actions interfered with, restrained or coerced a
public employee in the exercise of his rights, guaranteed
in Section 963, and
2. The Union's activities interfered with, restrained or coerced
a public employer in the selection of his representative for
purposes of collective bargaining or the adjustment of griev-
ances.
The thrust of the Employer's counterclaim is an effort to secure redress for a
violation of Principal Pelletier's right to freedom of speech, as protected by
the first amendment of the Constitution of the United States. Our position,
since the Board's inception, is that the Board is not the proper forum for the
resolution of constitutional issues. Westbrook Teachers Association v. School
Committee of the City of Westbrook, et al., PELRB No. 74-17, p. 3 (8/21/74).
Subsequent to Westbrook, we have altered our position to the extent that alle-
gations primarily concerning violations of the Act, with subsidiary constitu-
tional overtones, have been deemed proper for our consideration and resolu-
tion. Council No. 74 AFSCME v. Bangor Water District, M.L.R.B. No. 80-26, p.
11 (12/22/80). To conclude that the Union violated the Act, under the former
theory above, we must first determine whether Principal Pelletier is a public
employee, as defined in 26 M.R.S.A. 962(6). No evidence whatsoever was
presented concerning the Principal's status under the Act. We must, there-
fore, find that the respondent Employer has failed to carry its burden of
proof on the threshold status issue. The Employer's allegation of violation
of Section 964(2)(A), under the former theory, must be dismissed.
Looking to the latter theory, concerning the alleged violation by the
Union of 26 M.R.S.A. 964(2)(A), we note that the Principal has not been a
member of the Employer's collective bargaining negotiating team for the last
four or five years. (Transcript, p. 102). Furthermore, although the
Principal is the Employer's first-level grievance representative (Transcript,
p. 78), no evidence was presented establishing that any grievances were
pending before him, at the time of the Union's actions complained of, nor was
any evidence presented that Principal Pelletier has ever been called upon to
rule on any grievance. The facts in this case, therefore, are clearly
distinguishable from those in the case of City of Old Town v. Council No. 74,
Local 1828, AFSCME, et al., MLRB No. 75-25 (6/77/76). In that case, the union
petitioned for the removal of the employer's chief negotiator, who was also
the person making the decision at the final step of the grievance procedure,
dur-
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ing the course of negotiations. Here, the Union's request was for a reprimand
against the Principal, who was not a negotiator for the Employer nor was
there any evidence that he was or ever had been involved in processing any
grievance.
The final issue which we must consider is the Employer's motion to
dismiss the Union's complaint for failing to state a claim upon which relief
may be granted. Said motion is analogous to a motion to dismiss under Rule
12(b)(6) of the Maine Rules of Civil Procedure, in practice before the
Superior Court. Harvey, McGuire and Wroth, in the 1981 Supplement to Maine
Civil Practice, p. 118 (1981), have outlined the test applied by the Maine
Courts in considering the merits of said motions, as follows:
"In order to state a claim upon which relief can be granted, a com-
plaint must aver either the necessary elements of a cause of action or
facts which would entitle a plaintiff to relief upon some theory."
[Footnote citations omitted].
Had the Union presented enough evidence to sustain its burden of proof, in
substantiation of any of the operative allegations contained in its complaint,
violations of the Act would have been established and relief would have been
granted. The Employer's motion to dismiss the Union's complaint, on the
above grounds, must, therefore, be denied.
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:
1. That the prohibited practices complaint filed on May 6, 1981
by the Northern Aroostook Teachers Association, in Case No.
81-52, be and hereby is dismissed.
2. That the counterclaim filed on May 20, 1981 by the M.S.A.D.
#27 Board of Directors, in Case No. 81-52, be and hereby is
dismissed.
3. That the Employer's motion to dismiss the Union's complaint,
for failure to state a claim upon which relief may be granted,
in Case No. 81-52, be and hereby is denied.
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Dated at Augusta, Maine, this 19th day of November, 1981.
MAINE LABOR RELATIONS BOARD
/s/_________________________________________________
Gary F. Thorne, Alternate Chairman
/s/_________________________________________________
Thacher E. Turner, Alternate Employer Representative
/s/_________________________________________________
Harold S. Noddin, Alternate Employee Representative
The parties are advised of their right pursuant to 26 M.R.S.A.
968(5)(F) to seek a review by the Superior Court of this decision by filing
a complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days after receipt of this decision.
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