STATE OF MAINE Maine Labor Relations Board
Case No. 89-24
Issued: February 28, 1990
______________________________________
)
Oxford Hills Teachers Association, )
)
Complainant, )
)
v. )
)
) DECISION AND ORDER
M.S.A.D. No. 17 Board of Directors )
)
and )
)
Superintendent Kenneth Smith, )
)
Respondents. )
______________________________________)
On May 19, 1989, the Oxford Hills Teachers Association (Association)
filed a prohibited practice complaint with the Maine Labor Relations Board
(Board) alleging that the M.S.A.D. No. 17 Board of Directors (M.S.A.D.
No. 17 Board) and Superintendent Kenneth Smith (Respondents) have violated
26 M.R.S.A. 964(1)(A), (B) and (D) (1988). More specifically, the
complaint alleges that the Respondents required the Association's witnesses
at a Board prohibited practice complaint (PPC) proceeding, to either
exhaust contractual personal leave days or go on leave without pay during
their attendance at the proceeding, while at the same time granting paid
professional leave to witnesses appearing on behalf of Respondents. The
Association contends that these actions constitute disparate treatment and
purposeful discrimination against the Association's elected officers and
members, taken in retaliation for a complaint filed with and testimony
given before the Board. See 26 M.R.S.A. 964(1)(B) and (D) (1988). The
Association's complaint also charges that a member of the M.S.A.D. No. 17
Board of Directors interfered with, restrained or coerced covered employees
in the exercise of protected rights when that member characterized both the
Association's grievance relating to the disparate leave treatment and the
Association's previous PPC, as "arbitrary and capricious." See 26 M.R.S.A.
964(1)(A) (1988). The Association's complaint also appears to charge
-1-
that the actions upon which the Section 964(1)(B) and (D) violations are
based also constitute violations of Section 964(1)(A). The Association's
complaint requests that the Board order the Respondents: to "[c]ease and
desist from interfering with, restraining, coercing or discriminating
against employees in the exercise . . . of their rights under the"
Municipal Public Employees Labor Relations Law (MPELRL), "to restore to
affected employees their accrued personal days and any lost compensation
resulting" from the alleged violations, to post and individually distribute
Board notices, to cease and desist from violations and to pay all costs and
attorney's fees incurred in prosecuting the complaint.
The Respondents' answer denies the statement attributed to the
M.S.A.D. No. 17 Board member, substantially admits all of the remaining
factual allegations and denies that any of the actions complained of
constitute violations of the MPELRL. The Respondents' answer requests the
complaint be dismissed and that the Association be ordered to pay Respon-
dents' costs and attorney's fees. Neither party has requested that this
matter be deferred to arbitration.
On June 28, 1989, then Alternate Public Chair Peter T. Dawson con-
ducted a prehearing conference in this matter. The July 5, 1989 Prehearing
Conference Memorandum and Order issued by then Alternate Public Chair
Dawson is incorporated in and made a part of this Decision and Order. An
evidentiary hearing was not conducted, herein, because the parties were
able to reach a stipulation regarding the factual record. That joint sti-
pulation was filed with the Board on July 26, 1989. The Association's ini-
tial and reply briefs were filed on August 18 and September 18, 1989,
respectively. The Respondents' response brief was filed on August 18,
1989. On October 4, 1989, the Board, consisting of Alternate Public Chair
Dawson, presiding, Carroll R. McGary, Employer Representative, and George W.
Lambertson, Employee Representative, deliberated the issues framed by the
complaint and answer and argued in the parties' briefs.
JURISDICTION
The Board has jurisdiction to hear and determine the issues in this
case and to render a decision and order pursuant to 26 M.R.S.A. 968(5)
-2-
(1988). Neither party has objected to the Board's jurisdiction.
POSITIONS OF THE PARTIES
The Association contends that by granting "professional leave" to and
not subpoenaing witnesses appearing on its behalf the Employer has discrim-
inated against Association witnesses, who, to attend and testify on behalf
of the Association, were required to be subpoenaed and to either take leave
or attend in an unpaid status. The Association contends that the "message"
sent by the Respondents' actions in this regard "reasonably tends to
interfere with the free exercise of rights under the Act."
The Association also contends that the Employer's consideration of
Treadwell's appearance to be time worked constitutes an "individual
arrangement" prohibited by Article 2, Sections D and E of the parties'
contract, which prohibits other agreements inconsistent with contractual
terms. The Association contends that since the parties' contract fails to
provide for paid professional leave for attendance at Board proceedings,
the grant of such to Treadwell constitutes an inconsistent individual
arrangement.
The Employer contends that the Board's case law establishes that the
Employer is not required to subsidize the Association's prosecution of pro-
hibited practice complaints against it by granting paid leave to the
Association's witnesses.
FINDINGS OF FACT
The parties submitted stipulations and have agreed to the admissibility
of numerous exhibits. Additional findings of fact gleaned from the exhibits
are interspersed throughout the stipulations and are indicated by inclusion
in brackets.
Stipulations
1. Exhibits 1-12 submitted herewith are admitted by stipulation as to
authenticity, with each party reserving the right to argue the weight,
relevancy and accuracy of the statements and opinions expressed therein.
2. Respondent M.S.A.D. No. 17 Board of Directors ("[M.S.A.D. No. 17]
Board") is a public employer within the meaning of 26 M.R.S.A. Section 962(7)
-3-
[(1988 & Supp. 1989)].
3. Complainant Oxford Hills Teachers Association ("OHTA [or
Association]") is the bargaining agent for all certified teachers employed
by the MSAD #17 Board of Directors [within the meaning of 26 M.R.S.A.
962(2) (1988)].
4. Dr. Kenneth Smith is the Superintendent of Schools in M.S.A.D.
No. 17 and is authorized by the [M.S.A.D. No. 17] Board to administer
collective bargaining agreements.
5. There was in effect during the 1988-89 school year a collective
bargaining agreement between the Board and the OHTA. "The agreement" is
admitted by stipulation as Exhibit 1.
6. Joanne Zayszly, Bryan Morgan, JoAnn Kallis, Donna Horne, JoAnn
Nickerson and Carlene Treadwell are, and were at all times pertinent
hereto, public employees of the [M.S.A.D. No. 17] Board [within the meaning
of 26 M.R.S.A. 962(6) (1988)], members of the OHTA and the MTA and
covered by the agreement.
7. The OHTA filed a prohibited practice complaint, denominated Maine
Labor Relations [Board] Case No. 88-13, against the [M.S.A.D. No. 17] Board
on or about March 23, 1988. The [M.S.A.D. No. 17] Board filed a counter-
claim. The MLRB held evidentiary hearings on the complaint and counter-
claim on October 17 and 18, 1988, and November 21 and 22, 1988. Each of
the hearing dates was a regular working day for all members of the
bargaining unit.
8. Zayszly, Morgan, Kallis, Horne and Nickerson were subpoenaed by
the OHTA to be present on one or more of the hearing dates. Each of them
testified on behalf of the OHTA, with the exception of Nickerson, who did
not testify.
9. Zayszly was present at the hearings on each of the four hearing
dates and testified on [October 18 and 19, 1988]. Morgan was present on
October 17 and testified on that date. Kallis was present on October 17
and 18 and testified on [October 18, 1988]. Horne was present on each of
the four hearing dates and testified on [October 17 and 18 and November 21
and 22, 1988]. Nickerson was present on November 21 and 22, but did not
-4-
testify.
10. Horne, Morgan, Nickerson and Zayszly each received a letter from
Dr. Smith dated November 18, 1988, copies of which are admitted by stipula-
tion as Exhibits 2, 3, 4 and 5. [The letters which Superintendent Kenneth
Smith promulgated are identical in text and state, in pertinent part:
I have been advised that you have been subpoenaed for the
MLRB Hearings scheduled for November 21 and 22, 1988.
Pursuant to advice from our attorney, you will be released
to attend the hearings. However, please be advised there isn't
any contractural [sic] entitlement for you to be paid time apart
from personal leave days. Accordingly, if you have used your
personal leave available under the current Agreement, your
request will be granted without pay. In the event you have per-
sonal leave available, your leave will be granted pursuant to the
conditions of the current Agreement.
There is no record of whether a similar letter was mailed to JoAnn Kallis.]
11. After being subpoenaed by the OHTA, Zayszly was authorized to use
two personal days under Article 14(B)(1)(a) of the agreement to appear at
the hearings. She was paid for the personal days. She was excused from
work without pay for the two additional days she attended the hearings,
after being subpoenaed by the OHTA. [Article 14 - Leaves of the parties'
collective bargaining agreement provides in section B(1)(a), for: "[t]wo
(2) days leave of absence [with full pay in each school year] for personal,
legal, business, household or family matters which require absence during
school hours." Section D provides that teachers "shall request an unpaid
leave of absence . . . for leave of five (5) consecutive days or less" by
submission to the "Superintendent one (1) calendar week in advance of the
beginning of the intended leave." Section D also requires the request be
in writing and specify both the reason for the leave and whether the
teacher has informed the principal of such request.]
12. After being subpoenaed by the OHTA, Kallis was authorized to use
two personal days under Article 14(B)(1)(a) of the agreement to appear at
the hearings. She was paid for the personal days.
13. After being subpoenaed by the OHTA, Horne was authorized to use
two personal days under Article 14(B)(1)(a) of the agreement to appear at
-5-
the hearings. She was paid for the personal days. She was excused from
work without pay for the two additional days she attended the hearings
after she was subpoenaed by the OHTA.
14. After being subpoenaed by the OHTA, Nickerson was authorized to
use two personal days under Article 14(B)(1)(a) of the agreement to appear
at the hearings. She was paid for the personal days.
15. Treadwell was required by the Board to be present on each of the
four hearing dates. She was not subpoenaed. She testified on November 22.
The Board paid her in full for each of those days without charging her for
any personal days.
16. Zayszly wrote a letter dated November 27, 1988, to Kenneth Smith
regarding compensation of the witnesses. The letter is admitted by stipu-
lation as Exhibit 6. [The text of Zayszly's letter is as follows:
I am requesting that you reinstate the personal days for the
following people: Bryan Morgan (1 day), JoAnn Kallis (2 days),
Donna Horne (2 days), Joanne Zayszly (2 days) and JoAnn Nickerson
(2 days). I realize these days were used to testify at the Maine
Labor Relations Board which is a legal matter but since the
hearing this past week, I have learned that Carlene Treadwell,
who is also an association member was charged with professional
days for the four days she was present at the hearings. The
teachers listed above received official subpoenas from the Maine
Labor Relations Board and had no option but to appear. Mrs.
Treadwell stated to me that she did not have a subpoena for any
of the days of hearings. I feel that to grant Mrs. Treadwell
professional days and the officers personal days is discrimina-
tory in nature and should be corrected. Thank you for your con-
sideration in this matter.]
Dr. Smith's response of December 7, 1988, is admitted by stipulation as
Exhibit 7. [On December 7, 1988, Smith wrote Zayszly a letter, the text of
which is as follows:
This is in response to your letter to me of November 27,
1988.
The teachers you listed have received personal days for their
appearances at the Labor Board hearing in compliance with Article
14, Section B.1.a. of the collective bargaining agreement. The
contract clearly does not require that the Board pay you for
these days without charging you for the use of a personal day.
Each of the teachers you listed was subpoenaed to testify
against the Board. Ms. Treadwell, on the other hand, was present
-6-
at the behest of the Board. I do not feel that it would be fair
for the board to charge her for personal days when it required
her attendance at the hearing. Nor do I believe that it is
appropriate for the Board to pay teachers to testify against it.
The law does not require the Board to subsidize the Association
litigation against the Board. See Electronic Research Co. and
International Union, 190 N.L.R.B. No. 143; L.R.R.M. 1324 (1971);
General Electric Company and Julius Borbely, 230 N.L.R.B. No. 91;
95 L.R.R.M. 1372 (1977).
Since there has been no violation of the law or the
contract, I must deny your request to reinstate the personal days
of the teachers listed in your letter.]
17. The OHTA filed a grievance with Superintendent Smith on behalf of
Zayszly, Morgan, Kallis, Horne and Nickerson on or about December 27, 1988.
[Zayszly wrote Smith grieving Smith's requirement that Morgan, Kallis, Horne
and Nickerson use personal leave for attendance under subpoena before the
Board. That letter goes on to state, in pertinent part:
Another member of the bargaining unit was granted paid pro-
fessional leave for her attendance "at the behest of the Board,"
and because she did not "testify against the Board" at the
hearings, according to your December 7, 1988 letter.
Such disparate treatment violates Article 2(E), Article
3(A)(1), Article 14(B)(1)(a), and Article 18(A)(1) of the
Agreement, as well as 26 M.R.S.A. Section 964(1)(A),(B), and (D)
of the Municipal Public Employees Labor Relations Act.]
A copy of the written grievance is admitted by stipulation as Exhibit 8.
18. Superintendent Smith denied the grievance. The Superintendent
notified OHTA Representative Shawn Keenan of the denial through counsel in
a letter dated February 21, 1989, which is admitted by stipulation as
Exhibit 9.
19. The OHTA appealed the grievance to the [M.S.A.D. No. 17] Board of
Directors in a letter dated March 10, 1989, that is admitted by stipulation
as Exhibit 10. [The Association's March 10, 1989 letter which advanced the
grievance to step three is substantially identical to the Association's
letter of December 27, 1988. The March 10, 1989 letter does add an allega-
tion of violation of Article 2(D) of the parties' agreement.]
20. The [M.S.A.D. No. 17] Board met with Association Representative
Keenan regarding the grievance and subsequently denied it in a written
-7-
decision dated May 18, 1989, which is admitted by stipulation as Exhibit
11. [The following is the text of the decision letter which Sue-Ellen
Meyers, Chair of the M.S.A.D. No. 17 Board of Directors, sent to the
Association concerning the grievance:
Please accept this letter as the decision of the M.S.A.D.
#17 Board of Directors on the grievance of Joanne Zayszly, et al,
that was appealed to the Board by your letter dated March 10,
1989.
You claim that witnesses subpoenaed by the Association suf-
fered unequal treatment because they were required to use per-
sonal days or lose pay on the days they attended Maine Labor
Relations Board hearings, while Carlene Treadwell was compensated
in full for the days of work she missed as a result of her atten-
dance at the hearings. You agreed that the treatment of the
Association witnesses would have been lawful if Ms. Treadwell had
also been required to use personal days or lose pay.
The Board required Ms. Treadwell to be present at the
hearings. The Board does not believe that it would be fair to
dock Ms. Treadwell's pay on days that it requires her to be
absent from work. We believe that the Maine Labor Relations
Board would require that we compensate her because we caused her
absence. Southern Aroostook Teachers Association v. Southern
Aroostook Community School Committee, M.L.R.B. No. 80-35 and
80-40 (April 14, 1989).
The mere fact that the Board compensated Ms. Treadwell for
missed work does not mean that the Board is required to compen-
sate teachers whose absence from work was compelled not by the
School Board, but by a third party. It is not discrimination to
treat differently situated persons differently. This principle
has been recognized by both the Maine Labor Relations Board and
the National Labor Relations Board. Southern Aroostook Teachers
Association v. Southern Aroostook Community School Committee;
General Electric Co., 230 NLRB 683 (1977).
The Superintendent's decision not to grant the grievants
compensation in addition to their personal days for their absence
from work was not based upon the content of their testimony, but
upon the fact that the Board did not require their attendance at
the hearings. The grievants have been granted personal days for
their absences in accordance with Article 14.B.1.a. of the
collective bargaining agreement. They have been treated fairly,
legally and in a manner that is consistent with the collective
bargaining agreement. Accordingly, the grievance is denied.]
21. The OHTA appealed the grievance to arbitration in a letter dated
May 25, 1989, which is admitted by stipulation as Exhibit 12. [The
-8-
Association's attorney wrote Meyers advancing the grievance to arbitration
at step four of the parties' grievance procedure. The Association's
letter states, additionally:
It is remarkable that you would state in your May 18, 1989
letter that the superintendent's decision "was not based upon the
content of [the grievant's] testimony." Apparently the Board now
wishes to distance itself from Dr. Smith's original written
reasons of December 7, 1988 and February 21, 1989 that:
"Each of the teachers you listed was subpoenaed to
testify against the Board."; "Nor do I believe that it
is appropriate for the Board to pay teachers to testify
against it."
When this matter finally reaches an impartial decision-
maker, we will listen with great interest as Dr. Smith testifies
under oath whether he truly did not mean what he twice wrote; or
just blurted out twice in writing what he truly meant.]
The parties have jointly agreed to hold this arbitration in abeyance
pending the outcome of this prohibited practice case.
DISCUSSION
The Association did not pursue, either in the stipulations or in its
brief, its charge related to allegedly disparaging statements by a member
of the M.S.A.D. No. 17 Board. That portion of the complaint is, accord-
ingly, deemed withdrawn. Orono Fire Fighters' Association v. Town of
Orono, No. 89-18 (Me.L.R.B. Sept. 1, 1989) (citing cases). As is more
fully explained below, we find that the actions of Kenneth Smith and the
M.S.A.D. No. 17 Board of Directors, complained of herein by the Asso-
ciation, do not violate the provisions of the Municipal Public Employees
Labor Relations Law. Because we have concluded that the fact and manner of
the Respondents' refusal to grant paid leave to the Association witnesses
were not unlawful, the Association's complaint must be dismissed.
In its complaint in the underlying proceeding, filed with the Board on
March 29, 1988, the Complainant asked that the Board order "any other
affirmative action deemed appropriate to make the Association and teachers
whole including attorney's fees and the cost of filing [the] complaint."
(Emphasis added). In its response filed April 20, 1988, the Respondent
-9-
requested that the Board "order Complainant to reimburse Respondents for
their costs and attorney's fees incurred in [the] proceeding." The Board's
Decision and Order issued June 16, 1989, by a panel having only one member
in common with the present Board panel does not award attorney's fees or
the costs of procuring the attendance of witnesses to either party.
Neither party appealed the Board's failure to award such fees or costs.
Our consideration of the appropriateness of the award of the costs of
attendance is therefore restricted to the inquiry of whether such award is
necessary to remedy employer interference and discrimination based on the
rendition of testimony by employees at a Board proceeding.
The Board has had the opportunity on a number of occasions to address
the responsibilities of parties respecting the costs associated with the
attendance of witnesses at Board prohibited practice proceedings. In
Southern Aroostook Teachers Association v. Southern Aroostook Community
School Committee, Nos. 80-35 and -40, 5 NPER ME 20-13021 (Me.L.R.B. filed
Apr. 14, 1982) the Board stated, at pages twenty-four and twenty-five,
regarding such responsibilities, that:
Section 964(1)(D) protects employees involved in any stage
of a Labor Relations Board proceeding from a wide variety of
discriminatory actions by the employer. See, e.g., NLRB v.
Scrivener, 405 U.S. 117, 121-125 (1972). This is particularly
true with regard to employees who have been subpoenaed to attend
hearings as witnesses; the employer must give such employees a
reasonable opportunity to apply for the type of available leave
which the employees prefer, NLRB v. Western Clinical Laboratory,
Inc., 571 F.2d 457, 460 (9th Cir. 1978), and the employer's
general obligation with respect to subpoenaed employees "is one
of noninterference, nonrestraint, and noncoercion as to such
employees' right and obligation to attend scheduled hearings."
Walt Disney World, Inc., 216 NLRB 836, 837 (1975). 6/
________________________
6/
Thus, if some type of paid leave pursuant to the
collective bargaining agreement or the employer's rules
and policies is available to the subpoenaed employee,
the employer is obligated to grant the employee paid
leave to attend the hearing. Its refusal to do so
would constitute unlawful discrimination against the
employee for participating in a Board proceeding.
If for any lawful reason no paid leave is available to
the employee, then the employee must look to the sub-
poenaing party for salary reimbursement. Pursuant to
Section 968(6) of the Act and Rule 45(c) of the Maine
-10-
Rules of Civil Procedure, a subpoenaing party is
required at a minimum to pay a witness fee of $10.00
per day and a mileage fee of [22% [sic]] per mile round
trip to each person it subpoenas. 16 M.R.S.A. 251
[(1983 & Supp. 1989)]. If the subpoenaing party fails
to tender the proper amount of the witness and mileage
fees, then the subpoena has not been properly served
and the subpoenaed person is under no obligation to
attend the hearing. 16 M.R.S.A. 253; Pease v.
Bamford, 96 Me. 23, 51 A. 234, 235 (1901).
______________________
An employer is not obligated by Section 964(1)(D) to pay the
wages of its employees subpoenaed by another party to the pro-
ceeding, however, for such a rule would improperly require that
the employer subsidize the witnesses of an opposing party. See,
e.g., General Electric Co., 230 NLRB 683, 684-685 (1977). On
the other hand, an employer is required by Section 964(1)(D) to
pay the wages and mileage fees of employees subpoenaed or other-
wise compelled to attend the hearing by the employer; otherwise,
the employer would unjustly "economically disadvantage" the
employees for appearing at the hearing. See, e.g., Howard
Manufacturing Co., 231 NLRB 731, 732 (1977); MSAD #45 v. MSAD #45
Teachers Association, MLRB No. 82-10 (Jan. 12, 1982) (school com-
mittee required that the association subpoena the teacher wit-
nesses and then docked the teachers' pay).
Upon consideration we reaffirm our longstanding precedent in this
area. We find that the circumstances of this case do not require the
fashioning of an exception to the general rule in addition to that
established in the M.S.A.D. No. 45 case cited above. We also find that the
general rule requires that we dismiss the Association's complaint.
Moreover, although it is possible that otherwise lawful action may be
accomplished in a manner which in itself constitutes a violation, we find
no such circumstances present here.
The Association implies that the favorability of testimony formed the
basis of the M.S.A.D. No. 17 Board's decision regarding the leave status of
the witnesses who appeared in the prior proceeding. We find such an impli-
cation totally unfounded. The record does not establish that M.S.A.D. No.
17 selectively paid any witness, subpoenaed by the Association, whose
testimony either favored M.S.A.D. No. 17 or disfavored the Association.
Additionally, there is no evidence that M.S.A.D. No. 17 docked the pay of
any witness called by it whose testimony at hearing tended to benefit the
Association or failed to benefit M.S.A.D. No. 17. Moreover, there is no
-11-
allegation or evidence that Treadwell's testimony was in any respect biased
or untruthful. It is not unreasonable to expect a party to actively seek
the attendance of only those witnesses who possess expert or personal
knowledge tending to benefit that party's positions in a contested matter.
Moreover, it is also not unreasonable for each litigant to pay the reason-
able expenses related to such testimony. Were it not so, even a bargaining
agent's reimbursement of its own witnesses, for unpaid leave occassioned by
such attendance, would raise the rhetorical question, set forth by the
Association at page two of its reply brief, "[a]t what point will fees be
considered bribes?"
We reject, as unsupported, the Association's "uniformity" argument,
apparently made in the alternative, that if we fail to order indemnifica-
tion of the Association's witnesses, the contract's terms compel us to order
the docking of Treadwell's pay or personal leave. See Board of Regents and
Massachusetts Community College Council, No. SUP-2798, 7 NPER MA 22-15076,
Hearing Officer's Decision, slip op. at pp. 5-7 (Ma.L.R.C. June 27, 1984),
affirmed, No. SUP-2798, 7 NPER MA 22-16069 (Ma.L.R.C. Mar. 14, 1985).
We do not find the Superintendent's use of the phrases "to testify
against the Board" and "to pay teachers to testify against it" to give rise
to a reasonable inferance of forseeable interference with, restraint or
coercion of employees in the exercise of protected rights. The phrases
were used well after the testimonial presentation in the prior proceeding
and could have had no effect on testimony in that or any pending case. The
phrases were used in communicating to the Association's president rather
than to individual unit employees and were clearly incorporated as part of
the M.S.A.D. No. 17 Board's overall response to the Association's request,
which was that "[t]he law does not require the [M.S.A.D. No. 17] Board to
subsidize the Association's litigation against the [M.S.A.D. No. 17]
Board." Similar phraseology has been employed by Labor Boards considering
analogous claims. In County of Oakland and Oakland County Employees Union,
No. C85 B-43, 9 NPER MI-18006 (Mi.E.R.C., Nov. 6, 1986), the Michigan
Employment Relations Commission adopted the analysis of an administrative
law judge which contained, inter alia, the following statement:
The basic premise of the Employer that it need not subsidize
litigation against itself by paying employees for lost work time
-12-
when they appear against the County or on their own behalf is
sound and correct. Absent evidence of discriminatory motivation,
the case law is clear that an employer need not pay an employee
for time off of work, even where the time is taken off to engage
in protected activities.
(Emphasis added). County of Oakland and Oakland County Employees Union,
Decision and Recommended Order No. C85 B-43, slip op. at 4, 9 NPER MI-18006
(Mi.E.R.C. Oct. 6, 1986). In Electronic Research Co., 190 NLRB 778 (1971),
the National Labor Relations Board, at page 778, used the following phrase-
ology:
The earlier unfair labor practice proceeding was an adver-
sary one in which each side subpenaed [sic] or called its own
witnesses and compensated them for their time. In these cir-
cumstances to order Respondent to pay the employees for time
lost from work in testifying against it is to require a litigant
in effect to subsidize its opponent. In our view, Section
8(a)(4) was never intended by Congress to impose such burden upon
a respondent employer.
(Emphasis added). Restating the quoted language immediately above, the
National Board in General Electric Co., 230 NLRB 683 (1977), at page 685,
went on to state:
Consequently, we conclude that an employer is not discriminating
with respect to the employment relationship by not paying an
employee called as a witness against it the difference between
what such witness would have earned had he worked and what the
party calling him as a witness is willing to pay. Nor do we
believe that the failure of the employer to pay such difference
to employees testifying against it is otherwise per se discrimi-
natory, as the General Counsel's arguments may suggest. As we
have previously stated, to hold that an employer must pay this
difference would result in making employer liability dependent on
what others are willing to pay, something we are unwilling to do.
(Emphasis added). We do not find the complained-of wording violative.
Contrary to the assertion of the Association, the record does not
establish that the M.S.A.D. No. 17 Board required the Association to sub-
poena its witnesses. Additionally, there is no allegation or evidence that
Treadwell was denied mileage or the equivalent of a witness fee with
respect to her attendance at the M.S.A.D. No. 17 Board's request, or that
she was required to attend over any objection to lack of receipt thereof.
The record establishes that Kallis, Horne, Nickerson and Zayszly were
authorized personal days for two days of appearance and that they were each
-13-
paid for two days of personal leave. The record also establishes that
Morgan appeared under subpoena on October 17, but fails to establish the
leave status obtaining for that day. Although the record establishes that
leave was authorized and that paid personal leave was accorded in some
instances, the record nowhere mentions a request for such personal leave.
Because the taking of personal leave under the parties' agreement appears
to be an entitlement which may be taken at the option of unit employees, we
shall require, to the extent that it has not already been done, that the
M.S.A.D. No. 17 Board extend to Kallis, Horne, Nickerson and Zayszly the
option of unpaid leave for the dates on which they were subpoenaed to
appear and for which their personal leave was diminished.
Finally, we commend the parties for their achievement of a stipulated
record in this matter. We decline to award attorney's fees or costs in
this case.
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)(C) (1988), it is hereby
ORDERED that the Association's complaint be DISMISSED.
Dated at Augusta, Maine, this 28th day of February, 1990.
MAINE LABOR RELATIONS BOARD
The parties are advised /s/_____________________________
of their right pursuant Peter T. Dawson,
to 26 M.R.S.A. 968(4) Public Chair
(1988) to seek review of
this decision and order
by the Superior Court by
filing a complaint in /s/_____________________________
accordance with Rule 80C Carroll R. McGary,
of the Maine Rules of Alternate Employer Representative
Civil Procedure within
15 days of the date of
this decision.
/s/_____________________________
George W. Lambertson
Employee Representative
-14-