STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-54
Issued: March 3, 1982
__________________________________
)
BRIDGTON FEDERATION OF )
PUBLIC EMPLOYEES, )
)
Complainant, )
)
v. )
) DECISION AND ORDER
LEO HAMILL, Road Foreman, Town )
of Bridgton; ROBERT BELL, Chief )
of Police, Town of Bridgton; )
GERALD DOUCETTE, Selectman, )
Town of Bridgton; ROBERT HATCH, )
Selectman, Town of Bridgton, )
)
Respondents. )
__________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
968(5)(B) on May 12, 1981 by the Bridgton Federation of Public Employees
(Union). The Union alleges in its complaint, as amended on May 14, 1981,
that various officials of the Town of Bridgton (Town) violated 26 M.R.S.A.
964(1)(A) by making coercive and threatening statements which interfered with
Town employees' rights to a free and fair representation election. The Town
filed a response to the complaint on June 2, 1981, denying that any of its
actions constituted a violation of the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A. 961, et seq. (Act).
A pre-hearing conference on the case was held on June 29, 1981, Alternate
Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on
June 29th a Pre-Hearing Conference Memorandum and Order, the contents of which
are incorporated herein by reference.
Hearings on the case were held on July 22 and September 9, 1981, Chairman
Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and
Alternate Employee Representative Harold S. Noddin. The Union was represented
by Henry Harlow and the Town by F. Paul Frinsko, Esq. The parties were given
full opportunity to examine and cross-examine witnesses, introduce evidence,
and make argument. The Union filed a post-hearing brief, which has been con-
sidered by the Board.
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JURISDICTION
The Union is a public employee organization within the meaning of 26
M.R.S.A. 968(5)(B). The Town officials 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 Board finds:
1. In December, 1980, employees in the Town's Police and Public Works
Departments began organizing a union of Town employees. After speaking with
representatives of several unions, the employees decided to affiliate with
the American Federation of Teachers, naming their organization in the Town of
Bridgton the Bridgton Federation of Public Employees. In January, 1981,
Bernard King, a Patrolman in the Police Department, was elected President of
the Union. The employees filed representation petitions with the Labor
Relations Board in February, 1981, and on April 8, 1981 the Town and the Union
agreed upon a bargaining unit composed of Police Department employees and a
unit composed of Public Works Department employees. Representation elections
for the two bargaining units were scheduled for May 4, 1981. Accompanying the
representation petitions were authorization cards signed by 3 of the 5
employees included in the Police Department bargaining unit, and 6 of the 8
employees included in the Public Works Department bargaining unit.
2. On or about February 1, 1981, Mathew Baker, a Public Works Department
employee and a tenant of Selectman Robert Hatch, approached Hatch to talk
about his apartment. After talking about the apartment Hatch said he wanted
to know a little about the union, and Baker replied that if he wanted to talk
about the union he could come and talk to the whole group of employees. This
remark annoyed Hatch - he testified that he thought Baker's reply "sounds
like the union talking" - and he retorted that the Town could subcontract the
plowing and paving done by the Public Works employees to the Burnham Brothers,
a private concern which does road work. Baker subsequently told the employees
present at a union meeting about Hatch's statement regarding the subcontract-
ing of road work.
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3. On or about March 23, 1981, Police Patrolman Peter Madura and Select-
man Gerald Doucette were talking in a coffee shop. Madura asked what would
happen to the employees' benefits if the Union was elected, and Doucette said
he thought that benefits would have to go back to "ground zero" and be renego-
tiated. Although Madura did not think that the employees would lose any
benefits, he subsequently discussed with other employees Doucette's comment
about benefits going back to "ground zero."
4. On the evening of April 21, 1981, Chief of Police Robert Bell met
with the 5 Police Department employees at his home. Department meetings
customarily are held at the Chief's home. After discussing typical Depart-
mental business for about 2 hours, the Chief announced that he was going to
give his personal opinion about the Union. Bell stated that the employees
really didn't need a union, that the American Federation of Teachers was a
weak union, and that the employees could get a settlement on their own without
having "some [expletive] from the outside come in and tell us what to do."
If a union came in, Bell stated, the employees' benefits would start at
"ground zero" and have to be negotiated back from there. The Chief said he
liked his benefits and didn't want to lose them, and announced that nobody
was going to screw him because he would do the last screwing. Bell began his
comments in a low key manner, but as he spoke he became quite agitated, loud
and profane. Bell spoke without interruption for 10 to 15 minutes, after
which time the meeting was over.
5. On April 28, 1981, Bell, who was at the town garage for gas for his
police cruiser, spoke for a while with Leo Hamill, the head of the Town's
Public Works Department. Hamill then came out of his office and hollered to
the employees that there was going to be a meeting in his office. When the
employees had assembled in the office, Hamill announced that he had heard a
few things about the Union that made him nervous, and that he wanted to have
a "rap session" with the employees about the Union. He said that if anyone
felt uncomfortable they were welcome to leave. The employees gazed at each
other to see if anyone was going to leave. Nobody left the office imme-
diately, although one employee left during the meeting in order to keep a
medical appointment.
6. Hamill opened the meeting by saying he was very worried about his
benefits, because if the Union came in the selectmen possibly would be forced,
just to have something to bargain with, to start from point zero and take away
the employees'
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benefits. Hamill said that the employees would have to bargain the benefits
back and that some benefits might be lost in the process. An argument then
ensued between Hamill and some of the employees over whether the selectmen
could reduce benefits to "ground zero" if the employees elected a bargaining
agent. At this point Chief Bell, who had been in the office in his uniform
throughout the discussion, broke in and said that the selectmen could reduce
the benefits and that he liked his benefits and didn't want to lose them.
Bell then asked whether the employees really felt that they needed a union,
and said that he didn't think they needed one. Bell said that the employees
were capable of bargaining for themselves and that Ernest Loring, a Public
Works employee, could stand up for them and do a better job than could Bernard
King or the Union. At one point Bell asked when the election was going to be
held. An employee responded "on May 4th," and Hamill retorted "and on the
fifth you will be all done." At another point a heated shouting match broke
out between Bell and an employee about whether the selectmen could change the
minutes of a prior selectmen's meeting. The meeting with the Public Works
employees lasted approximately 2 hours.
7. Included with the employees' paychecks on April 16, 1981 was a note
from the Town Manager stating that the Board of Selectmen were asking that the
employees meet with the selectmen prior to May 4, 1981 to discuss any problems
that the employees wished to bring up. Several of the employees did meet with
Stephen Collins, Chairman of the Board of Selectmen. One of the requests made
by an employee at this meeting was that no retaliation be taken by the Town
against the employees who might have participated in union activity. Collins
stated that there would be no retaliation and that nobody was going to lose
his job because of the union activity. The employee later told King, the
President of the Union, that Collins had assured him that no retaliation would
be taken.
8. On May 4, 1981, the day of the election, Baker asked Selectman
Doucette to meet with him prior to the election. Doucette went to the town
garage and met with Baker and Hamill for about an hour. Doucette told Baker
the employees would not lose any benefits if the Union was voted in and,
knowing that Baker intended to vote against the Union, urged Baker to be sure
to vote.
9. The Union lost both of the elections on May 4, 1981. The vote in the
Police Department bargaining unit was 3-2 against the Union, while the vote in
the Public Works bargaining unit ended in a 4-4 tie, meaning that the Union
did not
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receive the majority of votes necessary to be certified as the bargaining
agent.
10. At a selectmen's meeting on May 21, 1981, a Police Department
employee read a letter signed by at least 7 employees. The letter states that
a majority of the employees were not in favor of the Union filing a prohibited
practices charge.
DECISION
While some statements uttered during organizational campaigns are so
inherently coercive as to constitute per se violations of the Act, the typical
interference case requires that we view the context in which the statements
were made in order to derive their true import. See, eg., Council No. 74,
AFSCME v. MSAD No. 1, MLRB No. 80-04 (Feb. 29, 1980); NLRB v. Saunders Leasing
System, Inc., 497 F.2d 453, 456-457 (8th Cir. 1974). The critical question
we must decide in such a case is "whether under these circumstances the
employees could reasonably conclude that the employer was threatening them
with economic reprisals" if they persisted in their organizational activities.
Id., at 457. In making this determination we must be mindful of our
responsibility to
". . . take into account the economic dependence of the employees
on their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implications of
the latter that might be more readily dismissed by a more disin-
terested ear."
NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S. Ct. 1918, 23 L.Ed.2d 547
(1969). The law is well-settled that "actual proof that any of the employees
felt threatened or coerced is not required where the Board finds that the
employer's statement is such that a tendency to interfere can be reasonably
inferred." Mon River Towing, Inc. v. NLRB, 421 F.2d 1, 9, fn.24 (3rd Cir.
1969); see also Teamsters Local 48 v. Town of Oakland, MLRB No. 78-22 (May 22,
1978).
The Union charges that the Town interfered with the employees' rights to
organize and select a bargaining agent in violation of Section 964(1)(A) by
1) threatening that benefits would be reduced to "ground zero," that the road
work would be subcontracted and the employees would lose their jobs, and that
the employees would get "screwed" if they elected the Union as their bargain-
ing agent, and 2) by telling the employees that they did not need a union and
that they could
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do better on their own. We find that these statements by the Town officials
constitute serious violations of Section 964(1)(A) which completely destroyed
the laboratory conditions necessary for a free and fair election.[fn]1
We will order remedies necessary to effectuate the policies of the Act.
1. The Prohibited practices. At the April 21, 1981 meeting with the
Police Department employees, Chief Bell stated that if a union came in the
employees' benefits would start at "ground zero" and have to be negotiated
back from there. Bell added that he liked his benefits and didn't want to
lose them. At the April 28, 1981 meeting with the Public Works employees Leo
Hamill, head of the Public Works Department, stated that he was very worried
about his benefits because if the Union came in the selectmen possibly would
be forced, just to have something to bargain about, to start from point zero
and take away the employees' benefits. Hamill said that in the process of
bargaining the benefits back, some benefits might be lost. After an argument
erupted between Hamill and some of the employees about whether the selectmen
could reduce benefits to "ground zero," Bell, who was present throughout the
meeting, broke in and said that the selectmen could reduce the benefits and
repeated that he liked his benefits and didn't want to lose them.
We find that these statements are highly coercive and that they consti-
tute gross violations of Section 964(1)(A). The plain message of these state-
ments is that bargaining over benefits could start from "scratch" and that the
employees could lose benefits if a bargaining agent was elected. Such "bar-
gaining from scratch" statements frequently are held to interfere so patently
with a representation election as to constitute per se violations. See, e.g.,
NLRB v. Saunders Leasing System, Inc., 497 F.2d at 457; Hendrix Mfg. Co. v.
NLRB, 321 F.2d 100, 105
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1. Section 964(1)(A) prohibits public employers and their representatives and
agents from interfering with, restraining or coercing employees in the ex-
ercise of the rights guaranteed in Section 963.
Section 963 provides:
"No one shall directly or indirectly interfere with, intimidate,
restrain, coerce or discriminate against public employees or a
group of public 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 pur-
poses of representation and collective bargaining, or in the
free exercise of any other right under this chapter."
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(5th Cir. 1963). We need not decide whether the statements per se violate
Section 964(1)(A), however, for the contexts in which the statements were
made very clearly establish their coercive nature.
The statements were not elicited by the employees but rather were unso-
licited pronouncements by the employees' department heads. The economically
dependent employees clearly could and did understand the statements as direct
threats that their benefits would be reduced to zero if they elected the
Union. Such a threat plainly would substantially influence many employees'
decisions about whether to vote for the Union. The statements were made in
charged, coercive atmospheres - Bell grew agitated, loud and profane when
talking about the Union at the April 21st meeting, and arguments and a heated
shouting match broke out between Hamill, Bell and the employees at the
April 28th meeting. In addition, as discussed infra, the statements were
accompanied by other threatening, coercive statements which amount to
violations of Section 964(1)(A) in and of themselves. Finally, the statements
were completely false, for we have held several times that the status quo with
regard to benefits and other terms and conditions of employment must be main-
tained during negotiations for the initial collective bargaining agreement.
Council 74, AFSCME v. SAD #1, MLRB No. 81-12 (Mar. 11, 1981); Teamsters Local
48 v. University of Maine, MLRB No. 79-08 (June 29, 1979). This means that
the existing level of benefits must remain in place until they are changed
through the collective bargaining process. While benefits may indeed be
reduced or eliminated as a result of collective bargaining, negotiations over
benefits thus start at the current level of benefits, not, as stated by Bell
and Hamill, at "ground zero." We have long held that false statements made
during election campaigns violate Section 964(1)(A). See, e.g., Council 74,
AFSCME v. Bangor Water District, MLRB No. 80-26 (Dec. 22, 1980).
In short, we conclude that under the circumstances the employees could
very reasonably conclude that the Town was threatening them with economic
reprisal if they selected a bargaining agent. Section 963 of the Act guaran-
teed the employees the free exercise of the rights to join, form and partici-
pate in the activities of labor organizations of their own choosing. Section
964(1)(A) prohibits public employers from interfering with, restraining or
coercing employees in the exercise of their Section 963 rights. The state-
ments about benefits made by Bell and Hamill interfered with and coerced the
employees in the free exercise of their rights to select a bargaining agent,
and accordingly violated Section 964(1)(A).
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Equally egregious is Bell's announcement at the April 21st meeting to the
effect that nobody was going to screw him because he would do the last screw-
ing. The statement was made in reference to the union activity, and was a
direct threat of retaliation if the employees opted for the Union. Such a
threat of retaliation is a violation of Section 964(1)(A), particularly in
light of the circumstances of this case. See, e.g., Stein Seal Co. v. NLRB,
605 F.2d 703, 705-706 (3rd. Cir. 1979). The statement, which could have no
other effect but to intimidate the employees into voting against the Union,
constitutes a serious violation of Section 964(1)(A).
Also unlawful was Hamill's statement at the April 28th meeting that the
employees would "be all done" on May 5th, the day after the election. This
statement must be considered in light not only of the coercive factors present
at the April 28th meeting but also in light of the fact that in February
Selectman Hatch told Public Works employee Baker that the road work could be
subcontracted to a private concern when Baker refused to talk about the
Union.[fn]2 Baker considered this statement to be enough of a threat to
report it to other employees at a union meeting. In light of the circum-
stances of this case, the employees could reasonably view Hamill's and Hatch's
statements as threats that they could lose their jobs if they voted in the
Union. Threats of discharge should the employees engage in protected
activities interferes with the employees' rights in violation of Section
964(1)(A). See, e.g., Richardson Paint Co. v. NLRB, 574 F.2d 1195, 1207 (5th
Cir. 1978).
A final coercive element in this case is Bell's comments to both units of
employees that they really didn't need a union and that they could do better
on their own. Whether or not the employees need a union is for the employees
to decide, not the employer. "An employer interferes with the right of self-
organization when he emphasizes to his employees that there is no necessity
for a collective bargaining agent." NLRB v. Bailey Co., 180 F.2d 278, 279
(6th Cir. 1950). We conclude that Bell's statements interfered with the
employees' right to make a free choice at
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2. We credit Baker's version of the discussion which occurred between Baker
and Hatch on or about February 1, 1981. Certain inconsistencies in
Hatch's testimony place his recollection in question. For example, Hatch
testified that when he talked to Baker on or about February lst, in "no
way, shape or form" did he know that the employees were forming a union.
Yet, on the very next page of the transcript he testified he thought "that
sounds like the union talking" when Baker told him that he should talk to
all the employees about the union.
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the election in violation of Section 964(1)(A).[fn]3
The Town's contentions that it did not violate the Act are wholly
unpersuasive. The suggestion that its statements did not violate Section
964(1)(A) because no employees felt threatened by them is contrary to the
record and the law. Several employees testified that they perceived the
statements as threats, and some of the employees were worried enough to
request a pre-election meeting with the Chairman of the Board of Selectmen,
at which time one employee pointedly asked that no retaliation be taken
against any employee who had engaged in union activity. The employee later
made a point of telling King, the President of the Union, that he had been
assured by the Chairman that no reprisals would be taken. This evidence
plainly shows that some of the employees felt threatened by the Town's mis-
conduct. In any event, whether or not the employees felt coerced "is of no
relevance" as a matter of law, since "[t]he test of coercion and intimidation
is not whether the misconduct proves effective." NLRB v. Triangle Publi-
cations, Inc., 500 F.2d 597, 598 Ord Cir. 1974).
Equally meritless is the notion that the statements were proper because
Bell and Hamill were merely expressing their "personal opinions," without any
intent to interfere with the employees' protected rights. Bell and Hamill,
both managerial employees under 26 M.R.S.A. 962(6), are agents of the Town
and the Town is fully responsible for their conduct. We have held that the
fact that a department head couches his comments in terms of his "personal
opinion" affords no immunity when the comments are coercive. Teamsters Local
48 v. City of Waterville, MLRB No. 78-28 (July 24, 1978). Similarly, "[i]t is
no defense that such words as 'possibly' or 'might' or 'probably' were used.
The consequences referred to were within the control of [the employer]."
L'Eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1347 (9th Cir. 1980). As for
Bell's and Hamill's intent, we believe that both fully intended to coerce the
employees into voting against the Union. Both employees evinced a high degree
of anti-union hostility at the hearings in this case, and we can perceive no
other reason for their statements but to discourage support for the Union.
In any event, their intent in making the statements is irrelevant; "[t]he
relevant inquiry is not [the employer's] intent but rather the coercive
inferences which the employees could have drawn." Stein Seal Co. v. NLRB, 605
F.2d at 706.
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3. As there is no direct evidence that Doucette engaged in any prohibited
practice, we hereby dismiss the prohibited practices complaint as to him.
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Finally, the fact that at least 7 of the employees signed a statement
saying that they were not in favor of filing the prohibited practices com-
plaint does not mean that the Union had no standing to file the complaint.
Such an action by the employees is not entirely unexpected for, as the Supreme
Court has noted, it is "more likely than not" that employees who have been
subjected to unlawful threats of reprisal will take actions which are damaging
to the union. NLRB v. Gissel Packing Co., 395 U.S. at 608. Section 965(B)
of the Act provides in pertinent part that any public employee or any public
employee organization may file a prohibited practices complaint. Thus, any
public employee in the two bargaining units or the union itself had standing
to file the complaint, regardless whether a majority of the employees did or
did not support the action. We conclude that the Union's complaint is
properly before us.
2. Remedies. Upon finding that a party has engaged in a prohibited
practice, we are instructed in Section 968(5)(C) of the Act to order the party
"to cease and desist from such prohibited practice and to take such affirma-
tive action . . . 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 unfair
labor 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 will order the Town to cease and desist from making threaten-
ing or coercive statements to its employees because of their protected
activities, or in any other manner interfering with, restraining or coercing
its employees in the exercise of rights guaranteed by Section 963.
We find that the Town's pre-election Section 964(1)(A) violations
completely destroyed the laboratory conditions necessary to hold a free and
fair representation election on May 4, 1981. Conduct violative of Section
964(1)(A) "is, a fortiori, conduct which interferes with the exercise of a
free and untrammeled choice in an election." Dal-Tex Optical Co., Inc., 137
NLRB 1782, 1786-1787 (1962). The Town's threatening and coercive statements
made it impossible for the employees to make a free, uncoerced choice at the
election. We therefore conclude that the results of the May 5, 1981 election
must be set aside.
We are empowered to order an employer to recognize and bargain with a
union without an election where the union once possessed support of a majority
of the employees and the employer's unlawful interference and coercion "have
the tendency
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to undermine majority strength and impede the election processes." NLRB v.
Gissel Packing Co., 395 U.S. at 614; see also Council No. 74, AFSCME v. Bangor
Water District, supra. We have this power even when the union has already
lost the representation election. See, e.g., Bandag, Inc. v. NLRB., 583 F.2d
765, 773 (5th Cir. 1978); Wisconsin Employment Relations Commission v. City of
Evansville, 69 Wis.2d 140, 230 N.W.2d 688, 699-703 (1975). Here the Union at
one time possessed majority support, shown by the fact that a majority of
employees in each bargaining unit signed authorization cards which were
submitted to us along with the representation petitions in February, 1981.
The Town's coercive statements had the predictable effect of undermining this
majority support and contaminating the election process.
We accordingly conclude that a bargaining order, effective for a minimum
period of at least one year from the date of this Decision and Order, is an
appropriate remedy in this case. This remedy will have the effect of
restoring the status quo - majority support for the Union as the bargaining
agent - as it existed before the Town committed the prohibited practices.
Merely setting aside the election and ordering a new election would not
effectuate the policies of the Act, for we believe that the Town's serious
violations of Section 964(1)(A) have so tainted the election process as to
preclude the possibility of holding a fair election in the foreseeable future.
There is no way to expunge the effects of the Town's threats of retaliation
from the employees' minds at the present time. We will order the Town to
recognize and, upon request, bargain collectively with the Union as the
exclusive bargaining agent of the employees in the Police Department and the
Public Works Department bargaining units. This is the remedy necessary to
effectuate the policies of the Act when the employer's unlawful actions have
destroyed the conditions necessary for holding a free and fair election.
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 Respondents, and their representatives and agents
1. Cease and desist from:
a) Making threatening or coercive statements to their employees
so as to interfere with, restrain or coerce the employees
in the exercise of their organizational and representational
rights.
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b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaran-
teed them by Section 963 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act:
a) Recognize and, upon request, bargain collectively with
the Bridgton Federation of Public Employees as the ex-
clusive bargaining agent of the employees in the Town's
Police Department and Public Works Department bargaining
units.
b) Notify the Executive Director, in writing, within 20 days
from the date of the Decision and Order, of the steps
Respondents have taken to comply with this Order.
IT IS FURTHER ORDERED that the election held on May 4, 1981 is set aside.
Dated at Augusta, Maine this 3rd day of March, 1982
MAINE LABOR RELATIONS BOARD
/s/____________________________________ Chairman
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Represe4itative
/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 review of this decision by the Superior Court 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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