STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-16 Issued: August 6, 1986 ________________________________ ) KITTERY EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) ERIC STRAHL, TOWN MANAGER, ) Town of Kittery, ) ) Respondent. ) ________________________________) The questions presented in this prohibited practices case are whether Eric Strahl, Town Manager of the Town of Kittery (hereinafter referred to as "Employer"), violated 26 M.R.S.A. 964(1)(A), (B), (C) and (E) and 965(1)(C) through statements contained in a letter delivered to each employee eligible to vote in a bargaining agent election scheduled to be held two or three days later. We hold that the Employer's action violated one section of the Municipal Public Employees Laboor Relations Act ("Act'), 26 M.R.S.A. ch. 9-A (1974 & Supp. 1985). We will, therefore, fashion a remedy appropriate to redress this violation and to effectuate the policies of the Act. This prohibited practices complaint was filed on March 11, 1986, pursuant to 26 M.R.S.A. 968(5)(B) (Pamph. 1985) by the Kittery Employees Association ("Union"). The Union's complaint alleged that the Employer's action violated the sections of the Act mentioned in the preceding paragraph. The Employer filed its answer on April 1, 1986, denying that its action transgressed any provision of the Act and moving to dismiss the Union's complaint. A prehearing conference on the case was held on April 22, 1986, Alternate Chairman Donald W. Webber presiding. On April 22, 1986, Alternate Chairman Webber issued a Prehearing Conference Memorandum and Order herein, the contents of which are incorporated herein by reference. Since the parties were unable to identify material issues of fact at the preheating conference, the matter was submitted to the Maine -1- Labor Relations Board ("Board") for its resolution of the relevant issues of law on the basis of written argument. The parties filed simultaneous main briefs and simultaneous reply briefs, the latter of which were received on may 27, 1986. The Board, Chairman Edward S. Godfrey, Employer Representative Thacher E. Turner, and Employee Representative George W. Lambertson, considered the parties' written arguments in reaching its decision herein. JURISDICTION The Kittery Employees Association is a lawful organization which has as its primary purpose the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2) (1974). At all times relevant hereto, Eric Strahl has been the Town Manager of the Town of Kittery. Since the act alleged con- cerning Strahl is said to have arisen out of and been performed by him in the course of his employment with the Town of Kittery, Mr. Strahl is a public employer, within the definition of 26 M.R.S.A. 962(7) (Pamph. 1985). The jurisdiction of the Board to hear this case and to render a decision and order herein lies in 26 M.R.S.A. 968(5) (1974 & Pamph. 1985). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. The Kittery Employees Association is a lawful organization which has as its primary purpose the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2) (1974). 2. At all times relevant hereto, Eric Strahl has been the Town Manager of the Town of Kittery. Strahl's action, which is the subject of this case, arose out of and was executed by him in the course of his employment with the Town of Kittery; therefore, Mr. Strahl is a public employer, within the definition of 26 M.R.S.A. S 962(7) (Pamph. 1985). 3. Pursuant to petitions for appropriate unit determination filed on December 11, 1985, a unit determination proceeding was held -2- on January 9, 1966. 4. Prior to the start of theunit determination proceeding men- tioned in the preceding paragraph, representatives of the Town.of Kittery and of the Union reached agreement on the composition of two appropriate bargaining units of Kittery municipal employees: the Kittery Administrative/Clerical Bargaining Unit, consisting of the Assistant Town Clerk, Recreation Clerk, Administrative Clerk, Assessor's Clerk, and the Clerk/Bookkeeper in the Sanitation Department positions, and the Kittery Technical Employees Bargaining Unit, composed of the Waste Water Treatment Plant Operator and the Waste Water Treatment Plant Maintenance Worker job classifications. 5. Subsequent to the unit determination proceeding mentioned in paragraph 3 above, a unit determination report was issued creating a third appropriate bargaining unit of Kittery municipal employees. This unit, the Kittery Professional Employees Bargaining Unit, is com- posed of the Tax Assessor, Code Enforcement Officer, Recreation Coordinator, Highway Foreman, Deputy Treasurer/Tax Collector/ Bookkeeper, and Deputy Town Clerk job classifications. 6. In letters from the Board to the Town of Kittery and to the Union dated February 14, 1986, bargaining agent elections for the three units mentioned in paragraphs 4 and 5 hereof were scheduled to be held on March 6, 1986, at the Kittery Town Hall. 7. On February 24, 1986, the Kittery Town Council met and the minutes of that meeting state: Councilor Plante then moved that the Town Manager be authorized to issue a statement of fact to members of the Kittery Employee Association before the vote on March 6, 1986. Second by Councilor Estes. Roll Call vote with all voting in favor except Councilor Kauffman. 8. Pursuant to the Town Council's vote, the Town Manager, on or about March 3, 1986, placed a copy of the following letter at the work station of each of the employees eligible to vote in the March 6th bargaining agent election. The letter read as follows: Dear Employee: On Thursday, March 6, you will be making an important decision, not only for yourself, but for the Town of Kittery, -3- when you vote in an election to choose as your bargaining agent the Kittery Employees' Association. The Town Council has asked me to write to you and to express the Town's posi- tion on this election, its positions on the issues involved in the selection or (sic) a bargaining agent, and the changes that the selection of a bargaining agent will bring. If you select a bargaining agent, this may bring about significant changes in the way you and I do business. If a majority of you selects the Association, I will be required to deal exclusively with the Association and its bargaining representatives, and I will be unable to deal with your indi- vidually outside of this context. In many situations, this will mean that rules, regulations, and requirements must be applied to all employees in all situations, for we will be working under the conditions of an employment agreement. This will mean a much more formalized relationship, for employement agreements are not drafted with the idea of pro- viding and allowing for individual treatment in those special situations that arise throughout the course of an employment relationship. Under this situation, we will enter into a collective bargaining setting designed to lead to the development of an employment agreement. We should all remember, however, that the Town is not required to agree to any bargaining demand that is not in its best interests, just as the Town is not required to negotiate only more or better benefits. Nego- tiations are based upon the concept that neither side has to agree to any particular proposal. It can be just as easy to lose benefits as it is to gain them. Representation by a bargaining agent also leads to other changes. Dues must be regularly deducted from employees' earnings in order to support the paid staff who represents the association's members. These dues are needed to support the costs of negotiating an agreement and arbitrating disputes. There will also be a larger bureaucracy with which to contend, which may very well mean that it will take longer to go from Point A to Point B and to resolve an issue or a dispute. This is often what results from more formalized relations. Employment agreements are often not easy documents to negotiate, at least not the ones that are well-written. We may very well be spending a considerable amount of time and money negotiating an agreement, and, once such money is spent in this way, it will not be available for other personnel expenses. When negotiating an employment agreement, one is always tempted to look at other contracts and agreements that already exist and to assume that only the best parts of these contracts will be incorporated into the new agreement. This, however, is not necessarily a safe assumption, for the Town will be bar- -4- gaining from a different perspective than the association. You now have several benefits, for example, that are not pro- vided in collective bargaining agreements under which other employees of the Town now operate. Two such benefits are the disability insurance coverage and somewhat more relaxed rules with regard to various procedures. Benefits such as these were achieved without the existence of an association. There is not (sic) guarantee that they will be achieved or maintained through the collective bargaining process. As you recall, a number of months ago you, through your representatives, made some proposals to the Council for increases in wages and fringe benefits. The Council soon implemented several of these proposals, such as the percent- age of the health insurance premium paid by the Town and the definition under which longevity payments are computed. The Council decided, however, that the consideration of other, possible changes should wait until after job descrip- tions had been reviewed and until any significant changes that should be made in them had been implemented. If changes in job descriptions are warranted, they could very well affect salary levels. Almost all of you participated in the review of these job descriptions, and some of you indicated that your jobs con- sisted of more than what appears in the Town Code. These descriptions have been before the Personnel Board since fall for the Board's study and recommendations. When they are completed, I will review them, and then the Council can take action to implement changes where they are needed. I expect that the Board will soon be giving me its recommendations. Under the process started in the fall, it was expected that the Council would be in a better position to act on your proposals to it, which are still pending, as soon as the position reviews were completed. Although this process is taking a considerable amount of time to complete, that amount of time is often needed to do such a job well, especially when some of the individuals working on the pro- cess donate volunteer hours to the task. Should you vote to be represented by a bargaining agent, the Council will not be in a position to increase your salaries and fringe benefits in response to the proposals you made earlier. Any changes in salaries and benefits will instead come only if and when the negotiating process for an entire employment agreement has been finished. Through the bargaining process and the bargaining laws, the Town is not compelled to agree to any increases whatsoever. In closing I would like to encourage you, if you have questions about the election process or any of the material discussed above, to contact me. If we cannot discuss the -5- matter and arrive at a reasonable answer, perhaps I can obtain the necessary information from another source. As I indicated at the start of this letter, you will make an important decision on March 6. Due to its impor- tance, I wish to encourage you to vote. Respectfully, /s/ Eric A. Strahl Eric A. Strahl Town Manager 9. The bargaining agent election for each of the three units mentioned above was conducted on March 6, 1986. Through the unanimous vote of all eligible employees in each unit, the Union was selected as the bargaining agent for each unit. DECISION The first defense presented by the Employer is that the bargaining agent elections of March 6, 1986, rendered the Union's complaint moot. Although we have not previously considered the moot- ness defense in this context, we have based a violation of 964(1)(A) of the Act in part on an employer's pre-election conduct in a case where the union had won a bargaining agent election. Teamsters Local Union No. 48 v. City of Ellsworth, MLRB No. 81-17, slip op. at 6 (May 28, 1981). We hold that, at least as it relates to an alleged pre-election violation of 964(1)(A), a prohibited practices complaint is not rendered moot merely because the employees affected opted for union representation in a subsequent bargaining agent elec- tion. Our holding is based on realization that an employer's coercive pre-election conduct is not likely to be soon forgotten by the unit employees and the chilling effect of such conduct on activity pro- tected by the Act may continue long after a bargaining agent election. A similar rationale has persuaded us to conclude that the subsequent execution of a collective bargaining agreement does not render moot the allegation that one of the parties had violated the statutory duty to bargain. Teamsters Local Union No. 48 v. City of Bangor, MLRB No. 79-22, Interim Order, slip op. at 1-2 (Mar. 2, 1979), cited with approval in Maine State Employees Association v. State of Maine, MLRB -6- No. 84-17, slip op. at 2 n.1 (July 17, 1986). The Union's first major averment is that the Employer's letter violated 26 M.R.S.A. 964(1)(A) (1974). The test that we employ in considering alleged violations of this section of the Act is as follows: A finding of interference, restraint or coercion does not turn on the employer's motive or on whether the coercion succeeded or failed, however, but is based on "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 at 3 (Aug. 24, 1978). Teamsters Local Union No. 48 v. Town of Fort Fairfield, MLRB No. 86-01, slip op. at 12-13 (Jan. 24, 1986). The Law Court has approved the use of this test in considering alleged violations of the iden- tical provision in the State Employees Labor Relations Act, 26 M.R.S.A. 979-C(1)(A) (1974). Maine State Employees Association v. State Development office, 499 A.2d 165, 169 (Me. 1985). Public employers are permitted to communicate with bargaining unit employees during the campaign that precedes a bargaining agent election. As we noted in Teachers Association of S.A.D. No. 49 v. Board of Directors of S.A.D. No. 49, MLRB No. 80-49, slip-op. at 6 (Nov. 18, 1980), an employer's expression of opinion which is non- coercive in nature is of constitutional dimension. See, N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 62 S. Ct. 344 (1941); N.L.R.B. v. General Electric, 418 F.2d 736, 72 LRRM 2530, cert. denied 397 U.S. 965 (1970)." The public employer's first amendment rights are not unlimited, however. We have discussed the limits on constitutionally protected expression as follows: The Water District's argument that its statements were protected by the First Amendment of the United States Con- stitution is not persuasive because "a threat of retaliation based on misrepresentation and coercion (is] without the protection of the First Amendment." [NLRB v.] Gissel Packing Co., [395 U.S. 575], at 618 [89 S. Ct. 1918, 23 L.Ed.2d 547 (1969)]. Coercive statements in violation of Section 964(1) (A) are not protected by the First Amendment. The way for the Water District properly to exercise its First Amendment rights is to "avoid coercive speech simply by avoiding con- -7- cious over-statements [it] has reason to believe will mislead [its] employees." Id., [395-U.S.] at 620. Council No. 74, APSCME v. Bangor Water District, MLRB No. 80-26, slip op. at 11 (Dec. 22, 1980). In examining particular statements, we have held that misleading and inaccurate statements often constitute unlawful employer interference with employee rights protected by the Act. This is especially true where the union does not have adequate time before the election to respond to the false and misleading state- ments. Council 74, AFSCME v. M.S.A.D. No. 1 Board of Directors, MLRB No. 80-04, slip op. at 6 (Feb. 29, 1980). Some statements in the Employer's letter came close to violating the Act and several assertions in the letter did contravene 964(1) (A). The second paragraph of the letter reads as follows: If you select a bargaining agent, this may bring about significant changes in the way you and I do business. If a majority of you selects the Association, I will be required to deal exclusively with the Association and its bargaining representatives, and I will be unable to deal with you indi- vidually outside of this context. In many situations, this will mean that rules, regulations, and requirements must be applied to all employees in all situations, for we will be working under the conditions of an employment agreement. This will mean a much more formalized relationship, for employment agreements are not drafted with the idea of providing and allowing for individual treatment in those special situations that arise throughout the course of an employment relationship. The statement is correct in saying that election of the Union as the certified bargaining agent would require the Employer to negotiate exclusively with the Union in the collective bargaining relationship. 26 M.R.S.A. 967(2) (Pamph. 1985). On the other hand, the portion of the paragraph saying that if a bargaining agent is selected the individual employees will no longer be able to discuss special situations directly with the Employer is false. Considering a similar statement in a prior case, the Board stated: The fact that employees are represented by a union hardly means that the employees cannot individually talk to management about special problems, as claimed in the letter; there simply is no basis in fact or in law for such a statement. The statement clearly is designed to undermine the employees' support for the Union by leading -8- them to believe incorrectly that they would have to clear everything with the steward before talking to management. False statements that employees will have to go through the union in order to talk to management unlawfully inter- feres with the employees' organizational rights. See, e.g., Tipton Electric Co., 242 NLRB No. 36 (1979); Levi Strauss & Co., 172 NLRB 732, 749 (1968). Bangor Water District, supra, at 9 [footnote omitted]. Furthermore, 967(2) of the Act provides that "any public employee at any time may present his grievance to the public employer and have such grievance adjusted without the intervention of the bargaining agent" so long as the union representative is given reasonable opportunity to attend the grievance conference and the resolution of the grievance is consistent with the terms of the applicable collective bargaining agreement. We hold that the Employer's statement was inaccurate and that it interfered with the unit employees' organizational rights in violation of 964(1)(A) of the Act. The fourth paragraph of the Employer's letter states that, with the election of a bargaining agent, "[d]ues must be regularly deducted from employees' earnings in order to support the paid staff who represents the association's members." While the quoted sentence may suggest that bargaining unit employees will have to join the Union and pay dues in order to receive service from the Union, 967(2) of the Act provides that "the exclusive bargaining agent shall be required to represent all the public employees within the unit without regard to membership in the organization certified as bargaining agent . . . ." Second, dues deductions or "fair share" contributions can only occur with the assent of the public employer. On the other hand, we have held that "fair share" union security clauses, whereby non-union mem- bers of the bargaining unit have a percentage of normal union dues deducted from their earnings to help defray the costs of bargaining contract administration and the adjustment of grievances, is a man- datory subject of bargaining. City of Bangor v. Bangor Fire Fighters Association, MLRB No. 83-06, slip op. at 19 (Aug. 2, 1983). We have held in the past that inflated estimates without basis in fact con- cerning the amount of union dues, assessments, and initiation fees violate 964(1)(A). Bangor Water District, supra, at 9. In this case, the balance of the discussion concerning "dues" deductions is -9- noninflammatory and accurately outlines the main purposes for which "fair share" deductions are made. We believe that, reading the fourth paragraph in its entirety, a reasonable person would not be deceived into supposing that each unit employee must join the Union in order to secure services from the bargaining agent. The third and sixth paragraphs of the Employer's letter discuss the collective bargaining process. The letter states that negotiation is a bilateral process where neither party is required to agree to any particular proposal and where the current level of benefits may be decreased as well as expanded. We have held in past cases that employer statements to the effect that selection of a bargaining agent will result in the loss of current benefits or that collective bargaining will start from 'ground zero' violate 26 M.R.S.A. 964 (1)(A). Bridgton Federation of Public Employees v. Hamill, MLRB No. 81-54, slip op. at 6-7 (Mar. 3, 1982). The statements under review accurately reflect the state of the law in connection with the collec- tive bargaining process. Section 965(1)(C) (Pamph. 1985) states that, in collective bargaining, "neither party shall be compelled to agree to a proposal or be required to make a concession . . ." Second, in Bridgton, supra, at 7, we noted that "benefits may indeed be reduced or eliminated as a result of collective bargaining. . . ." The state- ment contained in the third and sixth paragraphs of the Employer's letter are factually correct and are non-coercive. We hold that those statements do not violate 964(1)(A) of the Act. Paragraphs seven through eleven of the Employer's letter discuss an on-going job content survey that had been under way for "a number of months." The letter goes on to state that the job survey included a review of existing job descriptions and "[i]f changes in job descriptions are warranted, they could very well affect salary levels." After explaining why the job description review process had taken so long to complete, the letter stated: Should you vote to be represented by a bargaining agent, the Council will not be in a position to increase your salaries and fringe benefits in response to the proposals you made earlier. Any changes in salaries and benefits will instead come only if and when the negotiating process for an entire employment agreement has been finished. Through the -10- bargaining process and the bargaining laws, the Town is not compelled to agree to any increases whatsoever. In determining whether particular statements violate 964(1)(A), we must consider the following: The critical question we must decide in such a case is "whethar under these circumstances the employees could reasonably con- clude that the employer was threatening them with economic reprisals" if they persisted in their organizational acti- vities. [NLRB v. Saunders Leasing System, Inc., 497 F.2d 4531, 457 [8th Cir. 1974)). In making this determination we must be mindful of our responsibility to . . . take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinter- ested ear." NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S. Ct. 1918, 22 L.Ed.2d 547 (1969). Bridgton, supra, at 5. We hold that, when read in context, paragraphs seven through eleven of the Employer's letter would reasonably lead an economically dependent employee to believe that, if the Union is selected as the bargaining agent, the Employer would not implement the salary increases and fringe benefit adjustments that had been con- templated well before the advent of union activity. Whether factually correct or not, this suggestion of economic reprisal is a violation of 26 M.R.S.A. 964(1)(A). The Union's second allegation is that the Employer's letter violated 26 M.R.S.A. 964(1)(B) (1974). That section of the Act prohibits public employers from "encouraging or discouraging mem- bership in any employee organization" through discriminatory action "in regard to hire or tenure of employment or any term or condition of employment." The only actions by the Employer complained of in this case are the drafting and dissemination of the letter cited in paragraph eight of our findings of fact. Since the drafting and dissemination of the letter had no effect on hire, tenure, or any term or condition of employment, we hold that the Employer did not violate 26 M.R.S.A. 964(1)(B). -11- The Union's third major contention is that the Employer's letter violated the duty to bargain collectively created by 26 M.R.S.A. 964(1)(E) (1974) and incorporating the provisions of 26 M.R.S.A. 965(1) (Pamph. 1985). Apparently, the portions of the letter at issue are the third and fifth paragraphs on the first page of the letter. Those paragraphs state that, during collective negotiations, neither party is required to agree to any particular proposal, that nego- tiations may be lengthy and expensive, and that funds spent on the bargaining process "will not be available for other personnel expenses." The duty to bargain collectively can be violated in one of two ways: (1) the public employer or the bargaining agent refuse, upon receipt of a timely demand, to negotiate over the mandatory sub- jects of bargaining, Teamsters Local Union No. 48 v. Boothbay/Boothbay Harbor Community School District, MLRB No. 86-02, slip op. at 13 (Mar. 18, 1986), or (2) the public employer makes an unlawful unilat- eral change in a mandatory subject. Teamsters Local Union No. 48 v. Rumford/Mexico Sewerage District, MLRB No. 84-08, slip op. at 5-6 (Mar. 12, 1984). Since neither of these alternative situations was alleged in this case, the Employer did not violate 26 M.R.S.A. 964(1)(E). The Union's final allegation is that the Employer's letter violated 26 M.R.S.A. 964(1)(C) (1974). We have repeatedly noted that that section of the Act "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby poten- tially dominating it." Teamsters Local Union No. 48 v. Town of Fort Fairfield, MLRB No. 86-01, slip op. at 13 (Jan. 24, 1986); Eastport School Department, supra, at 8; Teamsters Local Union No. 48 v. Town of Kittery, MLRB No. 84-25, slip op. at 4 (July 13, 1984). The Employer neither participated in nor otherwise supported the acti- vities of the Union; therefore, we hold that the Employer did not violate Section 964(1)(C) of the Act. Having concluded that several of the statements contained in the Employer's letter violated 26 M.R.S.A. 964(1),(A) (1974) and pursuant to authority granted in 26 M.R.S.A. 968(5)(C) (1974), we will order the Employer to cease and desist from making coercive statements of -12- the sort involved here to its employees so as to interfere with, restrain or coerce the employees in the exercise of their organiza- tional and representational rights. This remedy is appropriate to rectify the above violation and to effectuate the policies of the Act. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(5) (1974 and Pamph. 1985), it is hereby ORDERED: 1. That the Respondent, and his representatives and agents, cease and desist from making coercive state- ments of the sort involved here to their employees so as to interfere with, restrain or coerce the employees in the exercise of their organizational and representational rights. 2. The balance of the prohibited practices complaint, filed by the Kittery Employees Association in M.L.R.B. Case No. 86-16 on March 11, 1986, be and hereby is DISMISSED. Dated at Augusta, Maine, this 6th day of August, 1986. MAINE LABOR RELATIONS BOARD /s/________________________________ The parties are advised of Edward S. Godfrey their right pursuant to 26 Chairman M.R.S.A. 968(5)(F) (Pamph. 1985) to seek review of the Superior Court by filing a complaint in accordance with /s/________________________________ Rule 80B of the Rules of Civil Thacher E. Turner Procedure within 15 days of Employer Representative the date of the decision. /s/________________________________ George W. Lambertson Employee Representative -13-