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. -1- 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. __________ 1/ Including portions of the record developed in Case No. 84-A-01. -2- 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. -3- 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 -4- 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. -5- 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. -6- 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 -7- 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 -8-