Bruce J. Geroux, member of IAFF, v. City of Old Town, No. 84-31, Interim Decision and Order, Sept. 10, 1984, Decision and Order, Nov. 27, 1984. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-31 Issued: September 10, 1984 _____________________________________ ) BRUCE J. GEROUX, ) member of INTERNATIONAL ASSOCIATION ) OF FIREFIGHTERS, AFL-CIO, CLC ) LOCAL 1655, ) ) Complainant, ) ) INTERIM DECISION AND ORDER v. ) ) CITY OF OLD TOWN, MAINE, and its ) CITY MANAGER, STANTON McGOWEN, ) ) Respondents. ) _____________________________________) The question presented is whether the City of Old Town, et al.'s (City) motions to dismiss Complainant's three-count prohibited prac- tices complaint should be granted. We find that two of the counts fail to state a claim and must therefore be dismissed, but that the third count states a claim upon which a hearing will be held. Bruce J. Geroux (Geroux) filed his complaint on June 11, 1984 alleging in three counts that the City violated various provisions of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Sec. 961, et seq., by failing to put Geroux on the correct level of the salary scale and by its handling of Geroux's subsequent pay grievance. The City filed an answer and its motions to dismiss on July 2, 1984. A pre-hearing conference on the case was held on July 9, 1984, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on July 11 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. The order directs that the motions to dismiss be considered by the Labor Relations Board prior to the case being scheduled for fact hearing. A hearing on the motions was held on August 15, 1984, Alternate Chairman Webber presiding, with Employer Representative Thacher E. -1- Turner and Employee Representative Harold S. Noddin. Geroux repre- sented himself at the hearing, while the City was represented by Thomas Johnston, Esquire. JURISDICTION Geroux is an employee of the Old Town Fire Department and is a "public employee" entitled to file a prohibited practices complaint pursuant to 26 M.R.S.A. Sec. 968(5)(B)(Supp. 1983-84). The City of Old Town and its City Manager are "public employers" as defined in 26 M.R.S.A. 962(7)(Supp. 1983-84). The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order on the motions to dismiss lies in Section 968(5)(B). DECISION This case involves a simple dispute about pay which the parties have been unable to resolve themselves even though a collective bargaining agreement with an elaborate grievance procedure is in effect. Geroux filed a grievance concerning the salary dispute in January 1984 and then, after the grievance was not resolved pursuant to the contract, filed this prohibited practices complaint. The City has filed motions to dismiss for failure to state a claim, and it is these motions which we consider in this decision. We of course must accept all allegations in the complaint as true for purposes of deciding the motions to dismiss. See, e.g., McNally v. Town of Freeport, 414 A.2d 904, 905 (Me. 1980). According to the allegations, Geroux and four other employees were hired by the Old Town Fire Department in 1982. After one year of employment two or these five employees were elevated to the "second year" wage rate set forth in Schedule A of the contract, according to the complaint, while Geroux and the other two employees remained at the lower "first year" rate. On January 16, 1984 Geroux submitted a written grievance to Clyde West, president of Local 1655 of the -2- International Association of Firefighters (Union), the bargaining agent for Geroux and other uniformed employees in the Fire Department. The grievance states the City was violating the wage provision of the agreement by continuing to pay the first year wage rate to 3 employees who each had been employed for more than one year, seeks back pay for the employees at the correct wage rate, and asks West to handle the grievance as expeditiously as possible. The alleged "discrimination" in the payment of wages and the events which ensued after Geroux filed the grievance form the basis of the three counts in the complaint, as follows: 1. Count I. Geroux alleges that the City violated 26 M.R.S.A. Sec. 964(1)(A), (C) and (D)(1974) by bypassing the bargaining agent and dealing directly with employees with regard to the grievance.[fn]1 The facts alleged in support of this allegations are that pursuant to the contract West submitted the grievance to the union grievance committee which decided, according to a letter dated January 26, 1984 from West to the Fire Chief, that Geroux had no grounds for receiving back pay but that there was a "language problem" in the contract which should be corrected. After several exchanges of correspondence between West, the Fire Chief, and City Manager Stanton McGowen and a meeting held in February to discuss the grievance, West in a February 22 letter to McGowen stated that the parties had been unable to resolve the grievance and that he wanted the issues stated in, the grievance (whether the wage provision had been violated and whether back pay was _______________ l Section 964(1)(A) states that public employers are prohibited from "[ilnterfering with, restraining or coercing employees in the exercise of rights guaranteed in section 963." Section 963 sets forth the rights of public employees to engage in vaious labor activities. Section 964(1)(C) prohibits public employers from "[d]ominating or interfering with the formation, existence of administration of any employee organization." Section 964(1)(W prohibits a public employer from: "Discharging or otherwise discriminating against an employee because he has signed or filed any affi- davit, petition or complaint or given any infor- mation or testimony under this chapter." -3- owed) advanced to the next step of the grievance procedure. At this point, according to the complaint, the City Manager bypassed West and began dealing directly with the union grievance com- mittee about the grievance, even though that committee no longer had any role pursuant to the collective bargaining agreement. On March 1, the City Manager stated in a letter addressed to West that the City and the union grievance committee could resolve the language problem and offered to place the grievance "on hold" until after a meeting with the committee. This letter was not given to West for several weeks, according to the allegations, but instead was sent to the homes of the members of the union grievance committee. This abrupt change in practice of dealing with the Union president about grievances after West had made it clear he wanted the original grievance to proceed and the attempt to deal directly with the members of the grievance commit- tee constitute the unlawful attempt to circumvent the bargaining agent and deal with employees, according to Geroux. The City urges that the City Manager continued to deal with the Union and cannot be said to have bypassed the bargaining agent. We agree with the City's position. In Geroux v. City of Old Town, MLRB No. 84-24 (June 18, 1984), another case involving the same par- ties, we found that allegations very similar to those in Count I failed to state a claim, and this finding is fully applicable here. The recognized bargaining agent for the employees is Local 1655 and all its officers and agents, not just the union president. When the City Manager sent the March 1 letter to the members of the union grievance committee instead of to the president then, he was not bypassing the bargaining agent but was instead dealing with a dif- ferent union body whose authority is expressly recognized in the contract's grievance procedure. While the allegations about the City Manager's actions suggest he was attempting to deal with a union body more predisposed to his own position than was the union president and therefore are pertinent to Count II, as discussed infra, they do not state a claim that he circumvented the union and dealt directly with the employees. We will grant the motion to dismiss Count I. -4- 2. Count II. This count alleges that the City Manager violated 26 M.R.S.A. Sec. 964(1)(C)(1974) by dominating or interfering with the Union in its handling of the grievance. The facts alleged are that on March 22 the City Manager agreed to proceed to the fourth step of the grievance procedure but that he improperly limited the subject matter of the grievance to the "language problem." The fourth step of the grievance procedure is the bilateral grievance committee, made up of two City representatives and two Union representatives. Despite the fact that Geroux had not grieved a "language problem" and that the Union president had stated in February that he wanted the subject matter of Geroux's grievance advanced to the next step of the grievance procedure, the City Manager's letter states: "As a charge to the Committee the subject of their deliberation is limited to the subject matter of the Union Grievance Committee statement that 'there is a language problem.'" The bilateral grievance commitee heard the grievance on April 4 and on April 9 it issued its report, finding by a 3-1 vote that the wage paid to Geroux is fair and correct and that the language problem had been eliminated because a new pay schedule had become effective. The dissenting member, a Union representative, stated that Geroux had grounds for a grievance because he was not being treated fairly and that the grievance should be taken to arbitration, the final step in the grievance procedure. According to representations made during the hearing on the motions, Geroux has attempted to take the grievance to arbitration, but has become embroiled in procedural disputes with the City over the matter. Geroux alleges that by limiting the subject matter of the grievance before the bilateral committee the City Manager interfered with the committee. We find Count II alleges a claim upon which relief could be granted. The allegations that the City Manager limited the commit- tee's inquiry to an area which was not the subject of Geroux's grievance and that as a result the committee did not address the issues raised by the grievance make out a claim that the City Manager improperly interfered with the committee in its consideration of the -5- grievance. In addition, the allegations in Count I that the City Manager stopped dealing with the Union president once he made it clear he wanted the original grievance resolved and went back to the union grievance committee with the grievance also support the charge the City Manager was attempting to influence the Union's handling of the grievance, possibly in collusion with some Union officials. We of course make no findings here that the City has violated the Act; our only finding is that Geroux has alleged sufficient facts to warrant a fact hearing at which time the question of the City Manager's role in the handling of the grievance can be fully aired. We will deny the City's motion to dismiss Count II and will order the Executive Director to schedule a hearing on Count II of the complaint. 3. Count III. The allegation is that the City's failure to ele- vate Geroux and the other 2 employees to the second year wage rate constitutes "discrimination" in violation of Section 964(1)(D). This allegation fails to state a claim because there is no allegation that any of the 3 employees was involved in a Labor Relations Board pro- ceeding at the time the alleged discriminatory action took place. Section 964(1)(D) is limited to protecting employees who are involved in some stage of a Labor Relations Board proceeding from discrimina- tory action. See, e.g., Southern Aroostook Teachers Association v. Southern Aroostook Community School Committee, MLRB Nos. 80-35, et al., at 24 (April 14, 1982); NLRB v. Scrivener, 405 U.S. 117, 121-125 (1972). Since there is no indication that any of the employees was involved in such a proceeding at the time of the alleged violation, the City's motion to dismiss Count III for failure to state a claim must be granted. 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. Sec. 968(5)(1974 & Supp. 1983-84), it is ORDERED: -6- 1. The City of old Town's motions to dismiss Count I and Count III of the complaint for failure to state a claim are granted. 2. The City of Old Town's motion to dismiss Count II of the complaint is denied. The Executive Director is directed to schedule a fact hearing on Count II. Dated at Augusta, Maine, this 7th day of September, 1984. MAINE LABOR RELATIONS BOARD /s/________________________________ Donald W. Webber Alternate Chairman /s/________________________________ Thacher E. Turner Employer Representative /s/________________________________ Harold S. Noddin Employee Representative -7- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-31 Issued: November 27, 1984 _______________________________________ ) BRUCE J. GEROUX, ) member of INTERNATIONAL ASSOCIATION ) OF FIREFIGHTERS, AFL-CIO, CLC ) Local 1655, ) ) Complainant, ) ) DECISION AND ORDER v. ) ) CITY OF OLD TOWN, MAINE, and its ) CITY MANAGER, STANTON McGOWEN, ) ) Respondents. ) _______________________________________) The question presented in this prohibited practices complaint case is whether the City of Old Town, et al., (City) interfered with Local 1655 of the International Association of Firefighters (Union) when the Union was handling Complainant Bruce J. Geroux's (Geroux) pay grievance. We find that the evidence does not show that the City dominated or interfered with the formation, existence or administra- tion of the Union, and dismiss the prohibited practices complaint. Geroux filed his complaint on June 11, 1984, alleging in three counts that the City violated various provisions of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Sec. 961, et seg. (Act). The City filed an answer and motions to dismiss on July 2, 1984. A pre-hearing conference on the case was held on July 9, 1984, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on July 11 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the City's motions to dismiss was held on August 15, 1984. On September 10 the Labor Relations Board issued an interim decision and order dismissing Counts I and III of the prohibited prac- tices complaint but ordering that a hearing be held on Count II. Count II alleges that City Manager Stanton McGowen and the City of -1- Old Town violated 26 M.R.S.A. Sec. 964(1)(C) (1974) by dominating or interfering with the Union in its handling of Geroux's grievance. A hearing on Count II was held on October 25, 1984, Chairman Edward S. Godfrey presiding, with Employer Representative Thacher E. Turner and Employee Representative Harold S. Noddin. The parties were given full opportunity to examine and cross-examine witnesses, intro- duce evidence, and make argument. Geroux was represented by labor representative Rodney Pierce and the City and the City Manager by Thomas Johnston, Esquire. JURISDICTION Geroux is an employee of the Old Town Fire Department and is a "public employee" entitled to file a prohibited practices complaint pursuant to 26 M.R.S.A. Sec. 968(5)(B) (Supp. 1983-84). The Union is the bargaining agent for Geroux and other uniformed employees in the Fire Department. The City of Old Town and its City Manager are "public employers" as defined in 26 M.R.S.A. Sec. 962(7) (Supp. 1983-84). The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in Section 968(5)(B). FINDINGS OF FACT Upon review of the entire record, we find: 1. On January 16, 1984 Geroux submitted a written grievance to Clyde West, president of the Union. The grievance stated that the City was violating the wage provision of the parties' 1983-84 collec- tive bargaining agreement by continuing to pay for the first-year wage rate to Geroux and 2 other employees, each of whom had been employed for more than one year, sought back pay for the employees at the correct wage rate, and asked West to handle the grievance as expedi- tiously as possible. Pursuant to the grievance procedure in the agreement, West submitted the grievance to the union grievance commit- tee, a body of 4 union members appointed by the president. The agreement charges the union grievance committee with the duty of investigating the grievance and deciding whether and how the Union -2- should proceed. 2. On or about January 25, 1984 Geroux and West went to talk to the Fire Chief about the pay problem. West took a letter to the Chief dated January 25, signed by both West and Geroux, which stated that Geroux's grievance was being submitted to the Chief as the second step of the grievance procedure. However, the discussion with the Chief became heated and the Chief said he did not want to see the grievance on his desk. West did not give the January 25 letter to the Chief. 3. On or about January 26, 1984 West submitted a letter dated January 26 to the Chief. This letter states that the union grievance committee felt that there was a "language problem" in the contract with regard to wages but that the committee "as a whole" did not feel that Geroux had grounds for receiving back pay. The letter adds that the Union might be willing to sit down with the City to correct the language problem. The Chief responded to West's letter on February 2, stating that he believed Geroux was being paid the correct rate of pay and that he and the City Manager would discuss a change in the con- tract language but not any changes in wages. 4. West and City Manager Stanton McGowen met to discuss the grievance on or about February 9, 1984. The "language problem" in the contract was discussed at length. According to West, the City Manager did not tell him to get rid of Geroux's grievance or warn that the grievance should not be taken to arbitration. West was being con- sidered for promotion to a lieutenant's position at the time, but the promotion was not discussed at the February 9 meeting. Subsequently West was promoted to be an acting lieutenant, at which time he resigned as union president. 5. On February 16, 1984 McGowen wrote a letter to West setting forth several agreements which purportedly had been reached at the February 9 meeting. West responded in a letter dated February 22, denying that any agreement to amend the contract's wage schedule had been made and stating that he wanted Geroux's grievance "as written" advanced to the fourth step of the grievance procedure, the bilateral grievance committee. That committee consists of two management repre- -3- sentatives appointed by the City Manager and two labor representatives appointed by the union president; it is charged with the duty of hearing grievances and attempting to resolve them. Attached to West's letter was a copy of Geroux's January 16 letter submitting the grievance to West. 6. McGowen responded to West's letter on March 1, 1984, stating that it was premature to advance to the next step of the grievance procedure "without first exhausting all avenues to resolve a language problem." McGowen stated that he was sure the union grievance commit- tee and the City could resolve the problem, and requested a meeting with the committee as soon as possible. Copies of the letter were sent to the members of the committee. McGowen testified that he put the letter in West's mailbox at the fire station on or about March 1, but West testified that he did not receive the letter until March 19, although he did see a committee member's copy of the letter prior to the 19th. 7. In a March 22, 1984 letter to the chairman of the union grievance committee, McGowen agreed to take the grievance to the bi- lateral grievance committee. However, the letter states that the sub- ject matter of the committee's deliberation would be limited to the statement in West's January 26 letter that there is a "language problem." 8. The bilateral grievance committee met to hear the grievance on April 4, 1984. The following events took place: The chairman of the committee, management representative Leon Cote, announced that the purpose of the hearing was to consider only the issue of contract language, but West and Geroux's representative, Rodney Pierce, argued that the hearing should go beyond the subject of language and should address the subject of the wage scale being applied to Geroux. Pierce then presented Geroux's case, contending that Geroux was hired in July, 1982; that he successfully served his six-months probationary period; that at the end of the probationary period in January, 1983, he was placed on the first-year pay scale; and that one year later in January, 1984, he should have moved up to the second-year pay scale. Instead, Pierce asserted, Geroux remained on the first-year scale in -4- January, 1984. The Fire Chief testified that although there was no question that the contract language "mislabeled" what the parties had agreed to, the pay scales being applied to all the firefighters were in accordance with what the negotiators intended when they executed the contract. One firefighter testified that in his opinion all firefighters including Geroux were receiving the correct rates of pay. Another firefighter, hired about the same time as Geroux, testified that his own rate of pay agreed with what he believed he was going to receive under the contract. 9. On April 9, 1984 the bilateral grievance committee issued its report, finding by a vote of 3-1 that the wage scale being applied to Geroux "is fair and correct." One of the firefighter members of the committee, Fred Becker, dissented on the ground that Geroux had grounds for a grievance because "he is not being treated fairly." The Committee also found by unanimous vote that the "language problem" had been resolved as of January 2, 1984 when a new wage schedule became effective. 10. On or about May 7, 1984 West stated that Geroux's grievance "has come to an end" in a letter to the City Manager and the Fire Chief. The letter states that all avenues had been exhausted and that Geroux had been represented as far as the grievance would allow. This letter resulted from a Union meeting at which the members voted on whether to continue to pursue the grievance. Geroux was not given a copy of the letter. DECISION Geroux charges that the City Manager violated Section 964(1)(C) by improperly limiting the subject matter of the bilateral grievance com- mittee's inquiry to the alleged "language problem," thereby preventing consideration of Geroux's pay grievance.[fn]1 In addition, we noted in our interim decision and order that the City Manager's attempt to go _______________ l Section 964(1)(C) prohibits public employers from "[d]ominating or interfering with the formation, existence or administration of any employee organization." -5- back to the union grievance committee on March 1 could support the charge that the City Manager was attempting to influence the way in which the Union handled the grievance. Having had the benefit of a full hearing of these matters on the record, we find that the evidence does not show that the City Manager did in fact interfere with or dominate the Union in its handling of the grievance. The first event to be considered is the City Manager's March 1, 1984 refusal to allow Geroux's grievance to go to the fourth step of the grievance procedure, the bilateral grievance committee, and his attempt to send the grievance back to step one, the union grievance committee. Geroux submitted his grievance to Clyde West, the Union president, on January 16, 1984, alleging in essence that he had been employed for about 1 1/2 years but that he was still being paid according to the first-year wage schedule set forth in the collective bargaining agreement. Geroux and West went to see the Fire Chief about the grievance on January 25 and the discussion became heated, with the Chief stating he did not want to see the grievance on his desk. West apparently was dissuaded from submitting a letter which he had with him which stated that the grievance was being submitted to the Chief as the second step of the grievance procedure. The next day West gave the Chief a different letter stating that the union grievance commit- tee, which constitutes the first step of the grievance procedure, felt that Geroux did not have grounds for receiving back pay but that there was a "language problem" in the contract with regard to wages. After the Fire Chief had denied the grievance at step two of the grievance procedure and after a meeting on February 9 between West and McGowen to discuss the grievance, West stated in his February 22 letter to McGowen that he wanted Geroux's grievance "as written" advanced to the bilateral grievance committee. A copy of Geroux's January 16 grievance was attached to West's letter. In the March 1 letter to West, McGowen stated that it was premature to advance to the next step of the grievance procedure "without first exhausting all avenues to resolve a language problem" and asked for a meeting with the union grievance committee as soon as possible. Copies of this letter were sent to West and to the members of the union grievance -6- committee but, inexplicably, West did not receive his copy until March 19. On March 22 McGowen wrote to the chairman of the union grievance committee stating that the grievance could go the bilateral grievance committee but limiting the subject matter of the committee's inquiry to the "language problem" stated in West's January 26 letter. The record does not indicate whether McGowen met with the members of the union grievance committee between March 1 and 22. Nothing in the sequence of events leading up to McGowen's March 22 letter establishes that the City Manager or any other City represent- ative or agent dominated or interfered with the Union in its handling of the grievance. It is true that McGowen ignored West's February 22 letter asking that Geroux's grievance and not the "language problem" be advanced to the bilateral committee and that he attempted to send the grievance back to the union grievance committee, an action not provided for in the grievance procedure in the collective bargaining agreement. These actions tend to show both that McGowen did not want Geroux's grievance to be heard and that he was attempting to deal with a union body which might, in light of West's January 26 letter regarding the committee's position, be more predisposed than West to favoring McGowen's position.[fn]2 However, they do not suffice to prove that McGowen dominated or interfered with the Union; the record does not show that McGowen even attempted to dictate how the Union handled the grievance or otherwise engaged in any action violative of Section 964(1)(C). Neither do we find that McGowen's attempt to limit the subject matter of the bilateral grievance committee's inquiry to a "language problem" so as to prevent consideration of Geroux's grievance amounted to unlawful domination or interference. McGowen's effort in his March 22 letter to limit the scope of the hearing was questionable because he knew full well that the matter which at least West and _______________ 2 We decided in our interim decision and order that McGowen's March 1 letter did not constitute an unlawful attempt to bypass the bargaining agent and deal directly with employees in violation of 26 M.R.S.A. Sec. 964(1)(A), (C) and (D) (1974). Geroux v. City of Old Town, MLRB No. 84-31 at 4 (Sept. 10, 1984). -7- Geroux wanted heard was Geroux's pay grievance, not the "language problem." That point was made clear in West's February 22 letter. On the other hand, West did state in his January 26 letter that the union grievance committee had decided to pursue only the "language problem." At the beginning of the bilateral committee's hearing on April 4, the chairman announced that the purpose of the hearing was to consider only the issue of contract language. However, West and Geroux's representative, Rodney Pierce, argued that the hearing should also address the issue of the wage scale being applied to Geroux. Pierce then presented Geroux's case, arguing that Geroux should as of January, 1984, have been on the second-year pay scale. Other wit- nesses also testified as to the particulars of the pay grievance. The committee issued its report on April 9, finding by a 3-1 vote that the wage scale applied to Geroux was "fair and correct" and that the "language problem' had been resolved. Assuming arguendo that the bilateral grievance committee is an employee organization" within the meaning,of Section 964(1)(C), we find that, in the circumstances, the City Manager's attempt to restrict the committee's inquiry did not amount to unlawful domination or interference. The committee ignored the limitation in his letter. The record shows that a full hearing was held on Geroux's grievance and does not show that the committee was dominated or interfered with in its consideration of the grievance. As Geroux has not carried his burden of showing that the City and its representatives or agents have dominated or interfered with the formation, existence or administration of any employee organization involved in this case, we must dismiss Count II of the prohibited practices complaint on its merits. 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. Sec. 968(5)(C) (1974), it is ORDERED: -8- Bruce J. Geroux's prohibited practices complaint filed in this proceeding on June 11, 1984 is dismissed in its entirety. Dated at Augusta, Maine, this 27th day of November, 1984. MAINE LAB0R RELATIONS BOARD /s/_________________________________ The parties are advised of Edward S. Godfrey their right pursuant to Chairman 26 M.R.S.A. Sec. 968(5)(F) (Supp. 1983-84) to seek review of this decision and order by the Superior /s/_________________________________ Court by filing a complaint Thacher E. Turner in accordance with Rule 80B Employer Representative of the Rules of Civil Pro- cedure within 15 day of the date of this decision. /s/_________________________________ Harold S. Noddin Employee Representative -9-