Maine State Employees Association v. State of Maine, MLRB No. 82-01, 5 NPER 20-13020 (Apr. 5, 1982), aff'd sub nom. State of Maine v. Maine State Employees Association, No. CV-82-185 (Me.Super.Ct., Ken.Cty., Oct. 30, 1984) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-01 Issued: April 5, 1982 ____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) STATE OF MAINE, ) ) Respondent. ) ____________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. 979-H(2) on July 2, 1981 by the Maine State Employees Association (MSEA). MSEA alleges in its complaint that the State of Maine (State) violated 26 M.R.S.A. 979-C(1)(A) and (E) by distributing a misleading and coercive flyer with the paychecks of state employees. The State filed a response on July 24, 1981, denying that any statement in the flyer 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 held on August 17, 1981, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on August 17th a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the case was held on August 28, 1981, Alternate Chairman Gary F. Thorne presiding, with Employer-Representative Don R. Ziegenbein and Alternate Employee Representative Harold S. Noddin. MSEA was represented by John J. Finn, Esq., and the State by Linda D. McGill, Esq. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. JURISDICTION MSEA is the bargaining agent within the meaning of 26 M.R.S.A. 979-H(2) for five state employee bargaining units. The State is the public employer defined in -1- 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. In November, 1980, MSEA and the State entered into negotiations for collective bargaining agreements to succeed agreements due to expire on June 30, 1981. One of the items discussed by the parties was the State's proposal that it pay the bargaining unit employees' contributions to the Maine State Retirement System in lieu of a salary increase. Both the State and state employees make contributions to the retirement system. The State pro- posed that it would continue making its contributions, that it would pay the employees' contributions, and that each employee's take-home pay would be increased by the amount of the employee's contribution. Implementation of this proposal thus would mean that the employees' take-home pay would increase while their gross salary remained unchanged. 2. MSEA rejected the State's proposal, publicizing the reasons why it found the proposal unacceptable in the May and June editions of its newspaper and in leaflets which it handed out and mailed to employees. In May, 1981 MSEA requested pursuant to 26 M.R.S.A. 979-D(3) that a fact-finding panel be assigned to assist the parties in resolving their bargaining disputes. A fact-finding panel was assigned, and fact-finding hearings began in July, 1981. 3. Included with state employees' July 1, 1981 paychecks was a flyer captioned "Questions and Answers The 'Retirement' Issue." Underneath the caption is the name of Commissioner David W. Bustin, the Commissioner of the Department of Personnel and the Governor's representative in the negotiations for successor collective bargaining agreements. The flyer purports to explain the State's proposal to pick up the employees' contributions to the retirement system. Included in the flyer are copies of pay stubs showing the effect of the State's proposal on the paycheck of a hypothetical state employee. These pay stubs contain a mathematical error, in that state employees contribute 6.5% of their gross salary to the retirement system, which, for the gross salary of $527.20 shown on the pay stubs, would amount to a sum of $34.27 rather than the $37.36 shown on the pay stubs. Due to this error, the amount of take-home pay the hypothetical employee -2- would receive if the State's proposal was accepted is inflated by $3.09, indicating a take-home pay increase of 9.35% instead of the factual 8.57%. 4. An employee in the State Treasurer's Office spotted the mathematical error in the flyer but the error was not corrected in the flyers distributed on the July 1st pay cycle. Approximately two-thirds of the State's employees received paychecks and the flyer on July 1st. The remaining third of the employees were paid on July 8, 1981. Included with their paychecks was the same flyer distributed on July 1st except that the mathematical error was corrected in the July 8th flyers. 5. The State provided MSEA with a copy of the flyer prior to its distribution on July 1st. MSEA objected that distribution of the flyer would be a prohibited practice, but to no avail. On July 1st, MSEA members distributed leaflets at various State work sites in Augusta and at a few other job sites throughout the State, stating that Bustin's flyer was illegal and discussing the questions and answers contained in the flyer. DECISION The law is well settled that an employer may communicate directly with individual bargaining unit members during negotiations; while there are some "obvious restraints" on such communications, "no law even flirts with a blanket prohibition of such." Teachers Association of S.A.D. #49 v. Board of Directors of S.A.D. #49, MLRB No. 80-49 at 6 (Nov. 18, 1980). Among the "obvious restraints" is the principal that the employer's communications cannot contain a "threat of reprisal or force or promise of benefit" or other- wise interfere with employee rights guaranteed by Section 979-B of the Act; such communications are "without the protection of the First Amendment." NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Similarly, communications by which the employer seeks to bypass the bargaining agent and deal directly or indirectly with the employees constitute a viola- tion of the duty to bargain: "Good-faith bargaining . . . requires at a minimum recognition [by the employer] that the statutory representative is the one with whom it must deal in conducting bargaining negotiations, and that it can no longer bargain directly or indirectly with the employees. It is inconsistent with this obligation for an employer . . . to seek to persuade the employees to exert pressure on the representative to sub- mit to the will of the employer, and to create the impression that the employer rather than the union is the true protector of the employees' interests." -3- General Electric Co. , 150 NLRB 192, 194-195 (1964), enforced, 418 F.2d 736 (2nd Cir. 1969), cert. denied 397 U.S. 965 (1970). MSEA urges that certain statements in the flyer tended to interfere with the employees' Section 979-B rights and also violated the State's duty to bargain imposed by Section 979-D(1) of the Act. Viewing the flyer in the context in which it appeared, we conclude that the flyer violates Section 979-C(1)(A) but not Section 979-C(1)(E).[fn]1 We will order remedies necessary to effectuate the policies of the Act. We do not agree with MSEA's contentions that the flyer contains mis- leading statements and attempts to create the impression that the State rather than MSEA is the true protector of the employees' interests. It is true that some of the statements are incomplete in the sense that they present only the State's point of view. For example, the second question in the flyer states, "Am I really getting a pay increase under the State's proposal?" The answer is: "Yes. Your take-home pay would be increased by the same amount of your deduction for retirement contributions." This answer is incomplete insofar as it does not explain that an employee's gross salary would not increase under the State's proposal. This fact had already been widely publicized by MSEA, however, and we believe that many employees were well aware that the State's proposal would not increase their gross pay. In any event, the answer certainly is not so misleading as to interfere with the employees' free exercise of their Section 979-B rights. The same is true of all the remaining statements in the flyer. __________ 1. Section 979-C(1)(A) prohibits the State from interfering with, restraining or coercing employees in the exercise of the rights guaranteed in Section 979-B. Section 979-B states: No one shall directly or indirectly interfere with, intimi- date, restrain, 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 purpose of representation and collective bargaining, or in the free exer- cise of any other right under this chapter. Section 979-C(1)(E) prohibits the State from refusing to bargain collec- tively with the bargaining agent of its employees as required by Section 979-D. Section 979-D sets forth the elements of the duty to bargain. -4- Neither do we believe that any of the statements constitute an attempt to persuade the employees to exert pressure on MSEA to accede to the State's pro- posal. While the first answer on the flyer, stating that the State's proposal "is the best way to provide employees with an adequate increase in take home pay," comes close to an unlawful attempt to influence the employees, we agree with the State that the statement is primarily informational. We do not see that this statement or any other statement in the flyer amounts to an attempt to convey the unlawful message to the employees that the State rather than MSEA is the true protector of their interests. We accordingly conclude that the State did not attempt in the flyer to bypass MSEA and that no violation of Section 979-C(1)(E) has occurred. We do agree, however, with MSEA's position that the flyer reasonably tended to interfere with and coerce employees in the exercise of their Section 979-B rights because it contained erroneous information. The flyer showed that the take-home pay of a hypothetical state employee would increase by a total of $37.36 per paycheck under the State's proposal, whereas the correct figure for the increase in take-home pay was $34.27. While the $3.09 differ- ence between the two figures is not large, the flyer created the impression that the State's proposal was slightly more beneficial to employees than was actually the case. The erroneous information also amounts to improper inter- ference because it makes it difficult for employees either to evaluate the State's proposal accurately or to compare it fairly with MSEA's proposals. We have long held that the making of false or erroneous statements to employees interferes with and coerces the employees in the free exercise of their protected rights. See, eg., Council 74, AFSCME v. Bangor Water District, MLRB No. 80-26 (Dec. 22, 1980). The coercive impact of the flyer was heightened by the context in which it appeared. The flyer was distributed to the "economically dependent" employees[fn]2 __________ 2. 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 disinterested ear." NLRB v. Gissel Packing Co., 395 U.S. at 617. -5- along with their paychecks, a most direct and efficient way of gaining an em- ployee's attention and making a point. Particularly when an employer includes information with the employees' paychecks must it scrupulously avoid careless errors of fact such as the mathematical error contained in the flyer. The flyer containing the erroneous information was received by two-thirds of the employees on July 1, 1981, one day after expiration of their collective bargaining agreements, and just as the parties were beginning the fact-finding hearings. Erroneous information is certain to have its maximum effect when received by employees on the very day that they began working without con- tracts and at the beginning of a lengthy process for resolving the parties' differences. In short, we conclude that the erroneous information, considered in the context in which it appeared, reasonably tended to interfere with the employees' rights to bargain collectively, in violation of Section 979-C(1)(A). We will order pursuant to Section 979-H(5) that the State cease and desist from distributing erroneous information about negotiation proposals to state employees. We will also order the State to take the affirmative action of posting copies of the attached notice in all areas where notices to employees in the five bargaining units represented by MSEA customarily are posted. The notices are to be signed by Commissioner Bustin, whose name appeared on the flyer, and must be maintained by the State for a period of 60 consecutive days after being posted. This posting is necessary in order to remedy the effect of the erroneous information received by the employees. Ordering the State to distribute a corrected flyer to the employees who received the erroneous information would not be appropriate, we believe, because of the incomplete information in the flyer and because one of the questions nearly amounts to an improper attempt to undermine MSEA. Moreover, another distribution of the flyer with paychecks would only further confuse the situation and create the potential for more disputes. The remedies we order are necessary to 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. 979-H, it is ORDERED: -6- That the State of Maine, its representatives and agents: 1. Cease and desist from interfering with, restraining or coercing state employees in the exercise of rights guaranteed in Section 979-B by distributing erroneous information about negotiation proposals, 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: a) post copies of the attached "Notice." Copies of this Notice, after being signed and dated by Commissioner Bustin, shall be posted immediately by the State and shall be maintained by it for 60 consecutive days there- after in conspicuous places, including all places where notices to employees in the bargaining units represented by MSEA customarily are posted. Reasonable steps shall be taken by the State to ensure that these notices are not altered, defaced, or covered by any other material. b) Notify the Executive Director, in writing, within 20 days from the date of this order, of the steps that have been taken to comply with the order. Dated at Augusta, Maine this 5th day of April, 1982. MAINE LABOR RELATIONS BOARD /s/__________________________________ Gary F. Thorne Alternate Chairman /s/__________________________________ Don R. Ziegenbein Employer Representative /s/__________________________________ Harold S. Noddin Alternate Employee Representative The parties are advised of their right pursuant to 26 M.R.S.A. 979-H(7) 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. -7- 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 STATE EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT interfere with, restrain or coerce state employees in the exercise of rights guaranteed by Section 979-B of the Act by distributing erroneous information about negotiation proposals. The hypothetical pay stub in the flyer distributed with paychecks on July 1, 1981 overstates the increase in take-home pay which would result from the State's "retirement proposal" by $3.09. (2) WE WILL notify the Executive Director of the Maine Labor Relations Board, in writing, within 20 days of the date of this Decision and Order, of the steps we have taken to comply with the Decision and Order. STATE OF MAINE Dated: _______________ By: _____________________ David W. Bustin Commissioner 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 House Station 90, Augusta, Maine, 04333, Telephone 289-2016. [-8-]