STATE OF MAINE MAINE LABOR RELATIONS BOARD
CASE NO. 84-01
ISSUED: December 5, 1983
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. )
)
BANGOR MENTAL HEALTH INSTITUTE, ) DECISION AND ORDER
)
and )
)
STATE OF MAINE, )
)
Respondents. )
____________________________________)
The question presented in this prohibited practices case is
whether the Bangor Mental Health Institute (BMHI) and the State of
Maine violated 26 M.R.S.A. Section 979-C(1)(A) and (E) (1974) by
the actions they took in temporarily filling a vacant shift at BMHI.
The Maine State Employees Association (MSEA or union), the bargain-
ing agent for the Registered Nurses at BMHI, filed its complaint on
July 13, 1983 pursuant to 26 M.R.S.A. Section 979-H(2) (Supp. 1982).
BMHI and the State filed a response on August 3, 1983, denying that
any of their actions violated the State Employees Labor Relations
Act, 26 M.R.S.A. Section 979, et seq. (1974 & Supp. 1982) (Act).
A pre-hearing conference on the case was held on August 29,
1983, Alternate Chairman Donald W. Webber presiding. Alternate
Chairman Webber issued on September 3, 1983 a Pre-Hearing Conference
Memorandum and order, the contents of which are incorporated herein
by reference.
Hearings were held on September 14 and 21, 1983, Chairman
Edward H. Keith presiding, with Employer Representative Thacher E.
Turner and Employee Representative Harold S. Noddin. MSEA was
represented by John J. Finn, Esquire and BMHI and the State by
Susan Farnsworth, Esquire. Full opportunity was given to the parties
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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.
Section 979-H(2) (Supp. 1982) for the State of Maine Professional
and Technical Services bargaining unit, which includes some of the
Registered Nurses employed at BMHI. BMHI and the State of Maine are
"public employers" as defined in 26 M.R.S.A. Section 979-A(5) (Supp.
1982). 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 (1974 & Supp. 1982).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. On June 21, 1983, nurse Florence Pyles received a memo from
the Director of Nursing at BMHI stating that as of June 21st Pyles
was temporarily assigned to the 11:00 p.m. to 7:00 a.m. shift on
Ward D-1, the admissions unit at BMHI. The memo was dated June 14,
1983 but Pyles did not receive it until June 21st because she was on
vacation. Pyles previously had been assigned to the day shift on
Ward D-1. A collective bargaining agreement between MSEA and the
State for the Professional and Technical Services bargaining unit
was in effect.
2. The problem of having Registered Nurse coverage on Ward D-1
during the 11-7 shift had been present at BMHI since the spring of
1982. In April, 1982, BMHI's application for participation in the
Medicare program was denied by the federal government in part
because the institution did not have 24-hour, 7-day-a-week coverage
by Registered Nurses on Ward D-1. In March, 1983, BMHI began pre-
paring to reapply for the Medicare program, which meant that the
required R.N. coverage on all wards had to be insured. In April,
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1983, the nurse working the 11-7 shift on Ward D-1 resigned on short
notice. Thereafter, volunteers among the nurses provided coverage
on the 11-7 shift, but by mid-June volunteers were no longer coming
forward. The Director of Nursing, Terry Morton, was concerned about
satisfying the Medicare requirements, so she temporarily assigned
Pyles, whom Morton believed to be the least senior qualified nurse,
to the 11-7 shift until such time as a nurse could be hired to
permanently work that shift. Two nurses were hired to cover the 11-7
shift on Ward D-1 as of July 15, 1983.
3. Upon receipt of the memo from Morton, Pyles contacted union
steward Bill Donahue, a psychiatric social worker at BMHI, to com-
plain about the temporary assignment. Donahue and Pyles filed a
grievance with Assistant Director of Nursing Elizabeth Bicknell at
approximately 9:00 A.m. on June 21st, asking that Pyles' assignment
be rescinded and that assignments be done according to the collective
bargaining agreement.
4. The weekly staff meeting of employees assigned to Ward D-1
was held during the afternoon of June 21st. Morton explained why
she had assigned Pyles to the 11-7 shift and Colleen Pound, a
Registered Nurse who worked on Ward D-1, stated that she disagreed
with Pyles' assignment to the shift. A discussion then ensued as
to how the 11-7 shift should be covered. Donahue cited some
articles from the collective bargaining agreement but Morton said
she would discuss the contract with him after the meeting. Another
person suggested that coverage of the shift be provided by drawing
names from a hat, and Morton agreed to try this method.
5. After the staff meeting on June 21st Pyles and Donahue met
with Morton and Bicknell to discuss Pyles' grievance. Morton said
that Pyles did not have to work the 11-7 shift that evening but that
her name would be included in the drawing of names from the hat.
Donahue stated that MSEA and the State should negotiate about the
method of covering the shift and Morton agreed to negotiate if
Donahue could guarantee that no grievances regarding the matter
would be filed and that negotiations would take place the next day.
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Donahue said he could not guarantee that no grievances would be
filed but agreed to negotiate on June 22nd. Donahue then asked
Morton to provide a copy of the State Board of Nursing rules and
regulations for the union's use during negotiations. Morton under-
stood that Pyles, the Chairperson of the Board of Nursing, would
give Donahue a copy of the rules and regulations. Morton said that
she wanted to talk to Dan Michaud, the Personnel Manager at BMHI.
6. Later in the afternoon of June 21st Morton received a call
from a Registered Nurse who said that a lot of rumors about coverage
of the wards were going around the institution and that a meeting of
nurses should be held. Morton decided to hold such a meeting at
8:00 a.m. the next morning, and that evening most of the nurses
received telephone calls informing them of the meeting.
7. A majority of the nurses employed by BMHI attended the
June 22nd meeting. Morton listed on a blackboard the 11-7 -shift on
Ward D-1 and three other shifts that needed R.N. coverage, and told
the nurses she needed a resolution of the coverage problems on these
shifts by the end of the meeting. Morton asked Pound to explain the
idea of drawing names from a hat, but Pound stated that she did not
support this idea and thought that the union contract should be
followed. Morton then wrote on the blackboard "least senior person -
unfortunate one - scapegoat." Another nurse suggested that all
R.N.s could take turns covering the shifts, and Morton wrote this
suggestion on the board. After listing several suggestions on the
board, Morton told the nurses it was their meeting and went to the
back of the room and sat down. The nurses broke up into two groups
and began assigning themselves to the vacant shifts. Not all of
the openings were covered, so after the meeting Morton had her
assistants call nurses who were not at the meeting to see if they
would fill in.
8. During the R.N. meeting on June 22nd Donahue met with
Personnel Manager Michaud, telling him that a grievance regarding
Pyles' assignment had been filed and objecting that Morton was
bypassing the union and dealing directly with the nurses. Michaud
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said he would speak to Morton about this. After the R.N. meeting
was over, Donahue spoke with Sandra St. Germaine, a Registered Nurse
who was president of the local MSEA chapter and a union steward, and
who was present at the R.N. meeting. St. Germaine said that after
the R.N. meeting, Morton told her that if the union disagreed with
what had happened at the meeting, she would negotiate.
9. Donahue and St. Germaine met with Michaud during the after-
noon of June 22nd. Donahue said the union could not tolerate
Morton's attempt to intimidate the nurses by writing negative
comments on the blackboard and that the State should negotiate with
the union and stop dealing with the employees. Michaud said the
State would negotiate about the matter, but no negotiating schedule
was set. Michaud asked Donahue and St. Germaine what they wanted to
see happen with the schedule set at the R.N. meeting, and they said
they would leave it up to him. In a June 24 memorandum to Donahue,
Michaud said that since the nurses had volunteered for the schedule,
BMHI would stay with the schedule formulated at the June 22 R.N.
meeting and would fill any holes in the schedule on a mandatory basis.
10. During the afternoon of June 22, St. Germaine received calls
from several irate nurses who were angry that a schedule had been set
without all nurses being present and that the union contract had not
been followed. St. Germaine decided to call an emergency union
meeting which was held on or about the evening of June 22. The nurses
who attended the meeting expressed a lot of anger and confusion about
what had happened, but no decisions were made. Another union meeting
was held on June 28, at which time the nurses voted to pursue all
available measures to enforce the contract. A grievance regarding
the schedule set at the June 22 R.N. meeting was filed, as was the
prohibited practice complaint which initiated this proceeding. No
further requests were made to the State to negotiate about the
schedule.
11. Several provisions in the collective bargaining agreement
may have provided a method for securing R.N. coverage of the 11-7
shift. Article XXVIII (Shift Assignments) states in pertinent part:
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When an opening occurs in a shift assignment in an
appropriate work group at a location, preference
shall be given to employees within the classifica-
tion who possess the training, ability and any
required special qualifications to perform the
work required, on the basis of seniority. In the
event that no employee desires a shift assignment,
employees shall be selected in order of inverse
seniority.
Article XXVII (Overtime Assignments) states in part:
1. In classifications where employees are eligible
for overtime pay, overtime work shall be offered to
employees within the work location involved from the
appropriate work group in continuing rotation on the
basis of seniority. Each employee shall be selected
in turn according to his/her place on the seniority
list by rotation provided, however, the employee
whose turn it is to work possesses the qualifications,
training and ability to perform the specific work
required.
DECISION
MSEA urges that in attempting to secure coverage for the 11-7
shift on Ward D-1, Morton dealt directly with the nurses and
thereby bypassed the bargaining agent and the collective bargaining
agreement in derogation of the duties imposed by the Act. The
State contends that Morton's June 22 meeting with the nurses was
merely a continuation of the practice of finding volunteers to
cover the shift, which cannot be seen as a bypassing of the union,
and that since there was an emergency situation requiring immediate
coverage for the shift, Morton's meeting with the nurses was proper
in any event.
It is, of course, a venerable principle of labor law that "an
employer acts in bad faith and violates the Act by dealing directly
with its employees concerning their working conditions at a time
when they are represented by an exclusive bargaining representative."
Farm Crest Bakeries, 241 NLRB 1191, 1196-97(1979). This principle
is based on the rationale that both the National Labor Relations Act
and the Act which governs the instant case
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"Makes it the duty of the employer to bargain col-
lectively with the chosen representatives of his
employees. The obligation being exclusive, see
Section 9 of the Act, 29 U.S.C. Section 159(a), it
exacts 'the negative duty to treat with no other."'
(Citations omitted)
Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683-84 (1944); see
also 26 M.R.S.A. Section 979-F(2)(B) (1974). Direct dealing with
employees represented by a bargaining agent thus is "subversive of
the mode of collective bargaining which the statute has ordained .
. . Such conduct is therefore an interference with the rights
guaranteed by Section 7 and a violation of Section 8(l) of the Act."
321 U.S. at 684. The injury suffered by the bargaining agent when
the employer deals directly with represented employees is "not that
flowing from a breach of contract [but] to the union's status as a
bargaining representative." C & C Plywood Corp., 163 NLRB 1022, 1024
(1967), enforced 413 F.2d 112 (9-th Cir. 1969). "The statutory
obligation thus imposed is to deal with the employees through the
union rather than dealing with the union through employees."
C. Morris, The Developing Labor Law 305 (1971).
The State does not contest the validity of these principles but
only their applicability to the facts of this case. The question we
must decide thus is whether Morton's June 22 meeting with the nurses
can reasonably be seen as an attempt to raise volunteers for the
vacant shift, or whether the meeting resulted in the bypassing of
MSEA and direct dealing with the nurses. We agree with the State's
argument that the non-coercive seeking of volunteers to cover the
shift is entirely proper; certainly nothing in the contract or in
the past practices between the parties would preclude such efforts.
Having carefully reviewed what transpired at the meeting, we
are convinced that the June 22 meeting cannot reasonably be viewed
merely as an innocuous attempt to find volunteers. The record
shows that volunteers were no longer coming forward to cover the
shift. Morton opened the meeting by telling the nurses that she
needed a resolution of the shift coverage problems at the end of
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the meeting, and then proceeded to take suggestions. This amounted
to direct dealing with the nurses over the matter of shift coverage,
an issue in which she knew the union was interested and about which
she had agreed, at the June 21 grievance meeting with Donahue and
Pyles, to bargain. Morton's going directly to the nurses to resolve
the shift coverage problem was inconsistent with her June 21 agreement
to bargain with the union about the issue and was also inconsistent
with her statutory obligation under 26 M.R.S.A. Section 979-D(1)(E)
(1974) to deal with the union about the issue.[fn1]
The fact that Morton did not "bargain" with the nurses in the
traditional sense of exchanging proposals and making compromises back
and forth is of no consequence; she clearly dealt directly with the
nurses about their hours of work. Even the sending of a letter to
employees can violate the rule if the effect is to deal directly
with employees. See, eg., Chester Valley, Inc., 251 NLRB 1455 (1980);
Teachers Association of S.A.D. No. 49 v. Board of Directors of S.A.D.
No. 49, MLRB No. 80-49 at 7-8 (Nov. 18, 1980). In addition, the fact
that union chapter president Sandra St. Germaine was present at the
June 22 meeting does not mean that Morton was in effect dealing with
the union. Nothing about the meeting suggests that Morton thought
she was dealing with the union about the matter or that St. Germaine,
who was not the union representative handling the shift coverage
grievance, was present at the meeting in any role other than that of
a Registered Nurse.
One of the suggestions made by a nurse at the June 22 meeting
was that the shift coverage problem be resolved by following the
union contract. In response to this suggestion Morton wrote on the
blackboard "least senior person - unfortunate one - scapegoat."
This action was direct acknowledgment by Morton that Article XXVIII
(Shift Assignments) of the collective bargaining agreement might
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1 Section 979-D(1)(E) provides that it is the mutual obligation
of the employer and the bargaining agent "To confer and negotiate in
good faith with respect to wages., hours, working conditions and con-
tract grievance arbitration . . ." Section 979-D(l)(E) also states
that "Work schedules relating to assigned hours and days of the week"
are among the matters "appropriate for collective bargaining."
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apply to the problem and was also an obvious statement that she did
not intend to rely upon the contract but rather intended to resolve
the problem by dealing with the nurses. This is direct evidence
that Morton bypassed the bargaining agent and the contract. The
fact that Morton told St. Germaine after the meeting that she would
bargain if the union disagreed with what had happened at the meeting
does not cure the harm that had been done. The union had already
been undermined by the time Morton made her offer, and an employer
must in any event first notify and bargain with the bargaining agent
before taking an action that affects wages, hours or working condi-
tions. See, e.g., City of Bangor v. AFSCME, Council 74, 449 A.2d
1129, 1134-1135 (Me. 1982); State v. Maine Labor Relations Board,
413 A.2d 510, 516 (Me. 1980).
The law is settled that an employer who bypasses the bargaining
agent and deals directly with employees regarding shift assignments
or hours of work impermissably interferes with the employees' right
to be represented in bargaining through agents of their choice and
violates its duty to bargain with the bargaining agent. See,
Carbonex Coal Co., 262 NLRB No. 159, 111 LRRM 1147 (1982); Shenango
Steel Buildings, Inc., 231 NLRB 586 (1977). This is because matters
such as shift assignments or hours of work are mandatory subjects of
bargaining:
"The particular laws of the day and the particular
days of the week during which employees shall be
required to work are subjects well within the realm
of 'wages, hours, and other terms and conditions of
employment' about which employers and unions must
bargain."
State v. Maine Labor Relations Board, 413 A.2d at 514, quoting
Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 691 (1965).
The result of the June 22 meeting was that the nurses broke up into
two groups and assigned themselves to cover the 11-7 shift. This
action obviously affected the hours of the day and the days of the
week the nurses were to work. It does not matter that the assign-
ments to the 11-7 shift were temporary and were voluntarily agreed
to by the nurses; the rule prohibiting direct dealing is fully
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applicable. See, e.g., Carbonex Coal Co., 111 LRRM at 1147; Thompson
Brothers Coal Co., 192 NLRB 24, 29 (1971); Chevron Oil Co., 168 NLRB
574 (1967).
Neither can we agree with the State's argument that Morton's
dealing with the employees was justified by an emergency situation.
The 11-7 position on Ward D-1 had been vacant since late April, 1983,
so Morton had had nearly two months to discuss a method of temporarily
covering the shift with the union. A collective bargaining agreement
was in effect which may well have governed the situation. For example,
Article XXVII provides a procedure for offering overtime work while
Article XXVIII governs the filling of shift assignments. Other
articles in the agreement may also have been applicable. We make no
finding here that any contract article was in fact applicable; our
only point is that the contract offered several possible solutions
and Morton or some other appropriate representative for the State was
statutorily obligated to discuss these possibilities with the union
before attempting to resolve the problem by dealing directly with the
nurses. Any "emergency" in covering the shift thus was self-created
when State representatives failed to bring the problem up with the
union in a timely fashion.
In light of the foregoing discussion, we conclude that the State
violated Section 979-C(1)(A) and (E)[fn]2 of the Act when Morton, its
agent and representative, bypassed the union and dealt directly with
the nurses on June 22 in an effort to resolve the shift coverage
problems. We will order the State to cease and desist from engaging
in these prohibited practices.
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2 Section 979-C(1)(A) prohibits public employers from "[ilnter-
fering with, restraining or coercing employees in the exercise of
the rights guaranteed in section 979-B." Among other things,
Section 979-B guarantees the right of state employees to be represented
in collective bargaining by representatives of their own choosing.
Section 979-C(1)(E) prohibits public employers from "[r]efusing
to bargain collectively with the bargaining agent of its employees as
required by section 979-D." Section 979-D is quoted in pertinent part
in footnote #1 in this decision.
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One final matter is MSEA's allegation,that the State failed to
provide relevant information requested by the union. The record
shows that at the June 21 grievance meeting union steward Donahue
asked Morton to provide a copy of the Board of Nursing rules and
regulations. Morton did not supply the copy because she understood
that the grievant, Pyles, who was chairperson of the Board of Nursing,
would give Donahue the requested information. This failure by Morton
to provide requested material was proper because an employer need not
furnish information which is already in the grievant's possession.
The record is unclear, however, as to whether Donahue requested any
other information from Morton. We therefore do not find any violation
on this point, although we note that the law is crystal clear in this
area: "The duty to bargain collectively . . . includes a duty to
provide relevant information needed by a labor union for the proper
performance of its duties as the employees' bargaining agent." MSAD
No. 45 v. MSAD No. 45 Teachers Association, MLRB No. 82-10 at 10
(Sept. 17, 1982), quoting Detroit Edison Co. v. NLRB, 440 U.S. 301,
303 (1979).
ORDER
On the basis of the foregoing findings of fact, 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. Section 979-H(3) (Supp. 1982),
it is hereby ORDERED:
That the Bangor Mental Health Institute and the State of
Maine, and their representatives and agents:
1. Cease and desist from interfering with the
rights of the nurses in the Professional
and Technical Services bargaining unit to
be represented by the bargaining agent of
their choice by bypassing the Maine State
Employees Association and dealing directly
with the nurses as to wages, hours, or
working conditions.
2. Cease and desist from failing to bargain
collectively with the Maine State Employees
Association as to the wages, hours, and
working conditions of the nurses included
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in the Professional and Technical Services
bargaining unit.
3. In any like or related manner interfering with,
restraining or coercing the nurses in the
exercise of their rights guaranteed by Section
979-B of the Act.
Dated at Augusta, Maine, this 5th day of December, 1983.
MAINE LABOR RELATIONS BOARD
/s/________________________________
Edward H. Keith, Chairman
/s/________________________________
Thacher E. Turner
Employer Representative
/s/________________________________
Harold S. Noddin
Employee Representative
The parties are advised of their right, pursuant to 26 M.R.S.A.
Section 979-H(7) (Supp. 1982), 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 of the
date of this decision.
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