STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 83-24
ISSUED: August 30, 1983
___________________________________
)
COUNCIL #74, AMERICAN FEDERATION )
OF STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, AFL-CIO )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
STATE OF MAINE, et al., )
)
Respondents. )
___________________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 979-H(2) on April 15, 1983 by Council #74, American Federation of
State, County and Municipal Employees, AFL-CIO (AFSCME). AFSCME alleges in
its complaint that the State of Maine, et al. (State) violated 26 M.R.S.A.
Section 979-C(1)(A), (B), and (C) by permitting the Maine State Employees
Association (MSEA) and its members and representatives to engage in violations
of the State's solicitation and distribution policy. The State filed an
answer on May 6, 1983, denying that it had violated any provision of the State
Employees Labor Relations Act, 26 M.R.S.A. Section 979, et seq. (Act). AFSCME
filed an amendment to its complaint on May 17, 1983. On May 27, 1983 MSEA
filed a petition to intervene in the proceeding.
A pre-hearing conference on the case was held on May 11, 1983, Alternate
Chairman Donald W. Webber presiding. On May 13, 1983 Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.
Hearings of the case were held on June 8 and July 26, 1983, Chairman
Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and
Employee Representative Harold S. Noddin. MSEA's petition to intervene was
granted at the beginning of the June 8th hearing. AFSCME was represented by
Harold L. Lichten, Esq., the State by Gerard P. Conley, Jr., Esq., and MSEA by
Shawn C. Keenan, Esq. The parties were given full opportunity to examine and
cross-examine witnesses, introduce evidence, and make argument.
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JURISDICTION
AFSCME is the bargaining agent within the meaning of 26 M.R.S.A. Section
979-H(2) for a bargaining unit of state employees. The State is the public
employer as defined in 26 M.R.S.A. Section 979-A(5). MSEA is the bargaining
agent for several bargaining units of state employees. 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. Section 979-H.
FINDINGS OF FACT
Upon review of the entire record,[fn]1 the Labor Relations Board finds:
1. In late 1982 and early 1983 MSEA began an organizing campaign to
decertify AFSCME as the bargaining agent of the State of Maine Institutional
Services bargaining unit. The Institutional Services bargaining unit is
composed of employees employed by the State in various institutions such as
the State Prison, the Pineland Center, and the Bangor Mental Health Institute
(BMHI). AFSCME has been the certified bargaining agent for the unit since
1977. Also in late 1982 and early 1983, AFSCME was conducting an organizing
drive to decertify MSEA as the bargaining agent of the State Operations and
Maintenance and Support Services bargaining unit. This unit is composed of
State employees in such job classifications as Highway Worker, Equipment
Operator, and Automotive Mechanic. MSEA has been the bargaining agent for
this unit since 1978. MSEA also is the bargaining agent for the Supervisory
Services bargaining unit, a unit composed of supervisors employed by the State.
2. During the organization drives both AFSCME and MSEA complained to the
personnel managers at several institutions that the rival union was violating
the State's solicitation and distribution policy. This policy provides in
general that employees could solicit cards only during non-work times and that
persons who were not employees could solicit cards only in non-work areas
during non-work times. In addition, the policy states that supervisors may
engage in organizing activity only with respect to their own bargaining unit,
the Supervisory Services bargaining unit, and should not get involved in
organizing activities in any other bargaining unit.
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1/ Including portions of the record developed in Case No. 84-A-01.
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3. For example, Don Michaud, the personnel manager at BMHI, was told by
an AFSCME field representative that supervisor Carol Harlow was asking
employees to sign MSEA authorization cards during working hours. Harlow, a
member of the Supervisory Services bargaining unit, had asked at least 4
employees in the Institutional Services unit to sign MSEA cards, although she
was not the supervisor of any of these employees. Michaud told Harlow's
supervisor that solicitation during working time was not proper and asked the
supervisor to investigate the situation. The supervisor told Harlow to stop
soliciting cards and Harlow obeyed this order.
4. Another incident reported to Michaud by AFSCME was one in which an em-
ployee brought an MSEA representative up to employee Charlotte Carter while
she was working, and the representative asked Carter if she wanted to sign a
card. Carter said she didn't, and the representative stayed in the area
awhile and talked to other employees. Carter's supervisor walked by, saw the
MSEA representative, and said "oh, you represent my union," and then left.
The supervisor did not know that that representative had been soliciting cards,
however. MSEA complained to Michaud that AFSCME was misusing its income pro-
tection plan.
5. As a result of the complaints, Michaud took several actions. He met
with AFSCME and MSEA representatives on several occasions to discuss the
complaints and the State's policy. He also presented copies of the policy to
the executive committee and to the middle-level managers at BMHI and discussed
the policy with these managers and supervisors.
6. Dennis Corsen, the personnel manager at the Pineland Center, also
received complaints from both AFSCME and MSEA. In one incident raised by
AFSCME, a security guard removed material regarding AFSCME's income protection
plan from the bulletin boards in one of the buildings at Pineland. The Super-
intendent at Pineland and the Chief of Security met with the guard immediately,
giving him a counseling slip and ordering him to repost the material. The
guard, who thought he was supposed to remove unauthorized union materials as
part of his job duties, reposted all of the information. In another complaint
to Corsen, a custodial worker said that an AFSCME steward was talking to her
about union matters during working hours. Corsen phoned the President of
AFSCME and asked him to take care of this matter.
7. Corsen also met with AFSCME and MSEA representatives to discuss the
solicitation policy. In addition, Corsen discussed the policy with managers
and supervisors at Pineland and distributed copies of it to the employees.
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8. In an incident which was not reported to Corsen or any other State
official, a shift supervisor at Pineland told an employee during work on
April 18, 1983, a State holiday, that "MSEA is on the grounds." The super-
visor said she didn't know where the MSEA representatives were and that she
didn't want to call anyone to check because she didn't want to bother anyone.
The employee, an AFSCME chief steward who had been in an adversarial position
with the supervisor over contract questions, looked around for MSEA represent-
atives but did not find any. The steward testified that he had never seen an
MSEA representative in a work area at Pineland. The first time Corsen heard
about this incident was during the testimony at the June 8th hearing in this
case. After the hearing he talked to the Supervisor about the incident.
9. Frank Mack, the Director of Personnel for the Corrections Department,
also received a few complaints about improper solicitation. In early April,
1983, Mack heard that a maintenance worker at the State Prison asked a shop
foreman during working time if he wanted to sign an MSEA card. Mack had the
warden at the Prison investigate the situation. The warden also discussed the
solicitation policy with the supervisors and the staff at the Prison. Mack
confirmed one instance of a supervisor soliciting a card from a subordinate
employee, and action was taken to see that such solicitation did not occur
again.
10. Between February and April, 1983, Charles Sherburne, the Executive
Director of AFSCME, spoke to representatives of the office of State Employee
Relations on 3 occasions, complaining that supervisors and MSEA representa-
tives were soliciting cards in work areas during work times. Sherburne did
not cite specific instances but stated that he had received reports and
complaints about improper solicitation. On April 12, 1983 the Director of the
Office of State Employee Relations issued a memorandum to all persons holding
the State's employee relations manual. The memorandum states that all agents
of the State, including supervisors, must maintain neutrality during the
organizing process, and directs that all employees be made aware of the
State's solicitation and distribution policy.
11. Ross Ferrell, an AFSCME organizer who was trying to organize
employees in MSEA's Operations, Maintenance and Support Services bargaining
unit, had difficulty getting access to employees at 3 highway lots in February
and March, 1983. In 2 cases - at the Baileyville and Enfield lots - Ferrell
was in essence told by supervisors that the employees were on work time,
although Ferrell believed the employees were either getting ready to go home
for the day or were on break. In the third instance - at the Carmel mainte-
nance lot - the supervisor at first said
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Ferrell could not speak to the employees, but, after the MSEA steward said it
was all right, allowed Ferrell to talk about AFSCME. Ferrell, who was able to
talk to the employees at many other highway lots, did bring these 3 incidents
to the attention of state officials.
12. MSEA also had difficulty getting access to some employees. In April,
1983, MSEA was told by the Personnel Director at the Augusta Mental Health
Institute that its staff representatives could not have access to break areas
on the wards. MSEA grieved this decision, filing for arbitration on the issue
in June, 1983. The issue remained unresolved at the time of the hearings in
this case.
DECISION
At issue is the question whether the State allowed MSEA members and
representatives to engage in activities which were in violation of the
solicitation and distribution policy, thereby aiding MSEA to the detriment of
AFSCME in the organizing campaigns. We find that the State did not assist
MSEA and will dismiss AFSCME's prohibited practices complaint.
AFSCME first urges that the fact that some supervisors solicited cards
for MSEA means that the State took a position in favor of MSEA during the
campaign. We reject this argument because the actions of supervisors cannot
be attributed to the State. In Council No. 74, AFSCME and MSEA, MLRB No.
84-A-01 at 8-9 (Aug. 24, 1983), we noted that since supervisors are "state
employees" under Section 979-A(6) of the Act, they are guaranteed free
exercise of organizational rights, including the right to solicit cards.[fn]2
This is in marked contrast to the situation under the National Labor Relations
Act, under which supervisors are not "employees" entitled to engage in organi-
zational activities but are instead agents of the employer. AFSCME is
entirely correct in arguing that under National Labor Relations Board law an
employer commits unfair labor practices when supervisors engage in organiza-
tional activities. That law plainly is inapposite under the Maine Act,
however, since the
__________
2/ We also found in Case No. 84-A-01 that supervisors did not play a substan-
tial role in MSEA's organizing campaign. We hereby incorporate in this
decision our findings and discussion regarding AFSCME's claim of improper
supervisory influence in Case No.
84-A-01.
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Act expressly grants supervisors the right to engage in organizational
activities.[fn]3 Since the supervisors were engaging in organizational
activities, they were not acting on behalf of the State but were acting on
behalf of the union for which they were soliciting. The employees who were
solicited could not reasonably believe that the supervisors were acting for
the State since the employees know the supervisors are represented by a union
and are entitled to engage in union activities. Several of the employees
testified they knew the supervisors were acting for MSEA, not the State.
AFSCME's contention that the State allowed supervisors to engage in
activities in contravention of the solicitation policy is not supported by the
record. There is no evidence that the State allowed any violation of the
policy to go uncorrected; indeed, the evidence is directly to the contrary.
The record shows that every time State officials became aware of a possible
violation, corrective action was taken.
For example, when Don Michaud, the personnel manager at BMHI, was told
that Carol Harlow was soliciting cards, contrary to the policy directive that
supervisors should not get involved in organizing activities in any bargaining
unit except for their own, he had Harlow's supervisor investigate the situa-
tion. The supervisor told Harlow to stop soliciting cards, and she obeyed
this order. After receiving several complaints about improper solicitation
from both AFSCME and MSEA, Michaud took further action, meeting with AFSCME
and MSEA representatives to discuss the complaints and the solicitation policy
and seeing that managers and supervisors at BMHI became familiar with the
policy. Similarly, when Frank Mack, the Director of Personnel for the
Corrections Department, heard that a supervisor solicited a card he took
action to see that such solicitation did not reoccur. Mack also had the
warden at the State Prison investigate an allegation that a maintenance worker
had solicited a card during working time.
Finally, in April, 1983, the Director of the Office of State Employee
Relations issued a memorandum directing that all agents of the State including
super-
__________
3/ We have no occasion in this case to consider any potential conflict
between the organizational rights granted to supervisors by Section 979-B
of the Act and the State's solicitation and distribution policy, which
limits the exercise of these organizational rights to the Supervisory
Services bargaining unit. We do note, however, that the State's policy
seems to be reasonable and is well-designed to insure the State's
neutrality during organizing campaigns.
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visors must maintain neutrality during the organizing campaign and that all
employees should be made aware of the solicitation and distribution policy.
In light of these actions by the State as well as others shown by the record,
It cannot be said that the State permitted MSEA members and representatives to
violate the solicitation policy. Although AFSCME argues that the April
memorandum should have been issued earlier, we believe the memorandum was a
timely and appropriate response under the circumstances of the case. AFSCME
had not presented the Director with any specific violations of the policy,
April was the thirty-day "window period" set forth in 26 M.R.S.A. Section
979-F(D) when the unions could file decertification petitions, and various
State managers had already taken steps to disseminate and to enforce the
policy.
AFSCME's argument that the State favored MSEA by failing to discipline
those MSEA members who violated the policy also is not persuasive. At least
one employee who may have been an MSEA member - the security guard who removed
AFSCME literature from the bulletin boards at Pineland - was disciplined; he
was given a counseling slip and was made to repost the material. Other
employees were investigated by their superiors and were told to stop solic-
iting cards. No evidence in the record suggests that harsher measures were
warranted, and we find that the actions taken by the State with regard to
employees who violated the policy were entirely appropriate under the circum-
stances. Certainly the failure to take stronger action does not suggest that
the State was favoring MSEA.
Finally, AFSCME claims that it was denied "equal-access" - that MSEA
representatives were allowed to talk to employees during work times and at
places while AFSCME was denied similar access. We note first that there is
not a shred of evidence that MSEA was allowed access as to a particular time
or place while AFSCME was denied access as to that time or place. AFSCME
urges that supervisors allowed MSEA representatives to "roam at will" at work
sites, and suggests that AFSCME representatives would not have been granted
similar access. We reject this argument because, first, the evidence does not
show that MSEA representatives were allowed to roam at will. For example,
Charlotte Carter testified that her supervisor did not tell an MSEA repre-
sentative to leave a work area. Carter also testified, however, that the
supervisor did not know that the representative had been soliciting cards, so
it is not possible to say the supervisor knowingly allowed the representative
to solicit. Even if there was evidence that supervisors allowed MSEA repre-
sentatives to solicit at improper times and in improper places, these actions
could not be imputed to the State for purposes of finding the State guilty
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of a prohibited practice, as we have already held.
There is evidence that AFSCME organizer Ross Ferrell was denied access at
3 highway lots, although at 2 of the lots the employees may have been on work
time. Ferrell was granted access at many other lots. The record also shows
that MSEA was denied access to the break areas at the Augusta Mental Health
Institute, an action which MSEA has taken to arbitration. Indeed, the record
shows that AFSCME and MSEA engaged in hard-fought organizing campaigns and
that each complained to the State that the other was violating the solicita-
tion and distribution policy and that the State was not enforcing the policy
equitably. Having carefully reviewed the record, we are satisfied that the
State acted as neutral as it possibly could in a difficult situation and that
its actions were entirely lawful and appropriate. Plainly the record falls
far short of showing that it favored one union over the other. We therefore
find that AFSCME's prohibited practices complaint must be dismissed.
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. Section 979-H(4), it is ORDERED:
Council No. 74, AFSCME's prohibited practices complaint
in this case is dismissed.
Issued at Augusta, Maine this 30th day of August, 1983.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
The parties are advised of their Edward H. Keith, Chairman
right, pursuant to Title 26
M.R.S.A. Section 979-H(7), to
seek review of this decision
by the Superior Court by /s/_______________________________________
filing a complaint in accord- Don R. Ziegenbein, Employer Representative
ance with Rule 80B of the
Rules of Civil Procedure
within 15 days after receipt
of this decision. /s/_______________________________________
Harold S. Noddin, Employee Representative
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