STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-31
Issued: September 7, 1993
____________________________
)
TEAMSTERS UNION LOCAL 340, )
)
)
Complainant, )
) DECISION AND ORDER
v. )
)
PORTLAND WATER DISTRICT, )
)
Respondent. )
____________________________)
This case was commenced by the April 29, 1993, filing of a
complaint with the Maine Labor Relations Board (Board) against
the Portland Water District (District) in which Teamsters Union
Local 340 (Teamsters) alleges that the District has violated
26 M.R.S.A. 964 (1)(B), (C) and (D) (1988). More specifically,
the complaint alleges that on January 5, 1993, District
Wastewater Operations Superintendent Jeffrey Nixon and Wastewater
Operations Assistant Superintendent James West interviewed
Teamsters and bargaining unit member Ralph Dobson "regarding his
activity on behalf of laid off fellow bargaining unit employees"
while denying his multiple requests for Teamsters' representa-
tion. The complaint also alleges that since April 5, 1993,
Dobson has been denied promotion to a Sub-Foreman position which
has been filled with employees who have been inactive in
Teamsters matters. Finally, the complaint alleges that since
January 4, 1993, the District has "refused to meet with
[Teamsters] stewards at reasonable times and during the normal
work day for the purpose of resolving disputes through the
grievance procedure." On May 10, 1993, the Teamsters filed a
motion to amend, later itself amended, which alleges that since
May 1, 1993, the District wrongfully: prohibited its employees
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from lawfully conducting informational picketing; suspended one
employee and disciplined or threatened to discipline others for
refusing to desist from lawful informational picketing; and
selectively enforced a parking policy as a pretext for
disciplining employees using their cars to display informational
picket signs. The motion to amend requests an expedited hearing.
A letter accompanying the motion states in support of the request
for expedited hearing that employees will, absent immediate
relief, suffer irreparable injury through the chilling of their
fundamental rights.
On May 14, 1993, the District filed an answer which denies
each allegation of the amended complaint. The answer states that
because the complaint does not clearly and concisely state the
facts constituting the charge, the District is unable to properly
prepare its defense. Additionally, the District states that the
issues set forth in the amended complaint should be deferred to
the parties' grievance-arbitration procedure. On May 20, 1993,
the District answered the original complaint by denying that
Dobson believed discipline might result from the meeting, and
alleging both that no discipline was contemplated by the District
and that Dobson was so informed. The District's answer states
that selection of sub-foremen is the sole province of the
District pursuant to the Management Rights clause of the parties'
collective bargaining agreement and that the matters referred to
in the original complaint are subject to and should be deferred
for resolution in the parties' agreed grievance-arbitration
procedure. The issues in the case framed by the Motion to Amend
and the Answer to the Amended Portion of the Prohibited Practice
Complaint were heard on May 26 and June 2, 1993. During the
evidentiary hearing both parties were afforded the opportunity to
present evidence and oral argument. The Board did not permit the
filing of briefs in light of the expedited nature of the
proceeding. The presiding Board panel consisted of Chair Peter
T. Dawson, Employee Representative George W. Lambertson and
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Employer Representative Howard Reiche, Jr. The Teamsters were
represented in the expedited hearing by Attorney Howard T. Reben
and in the case-in-chief by Teamsters' Secretary-Treasurer
Harvard Brassbridge. The District was represented at the
expedited hearing by Attorney Frederick B. Finberg and in the
case-in-chief by Attorney Peter Bennett. The Board deliberated
the expedited portion of the case immediately after the close of
the record and the parties were notified orally of the Board's
decision to dismiss the charges contained in the amended
complaint. The parties were told a written decision would follow
in due course. A prehearing conference on the remainder of the
case was conducted on June 11, 1993, by Chair Dawson. The
District's motion to defer was denied at prehearing. The
transcript for the last day of hearing was posted July 3, 1993.
The parties reached a settlement in the case-in-chief, and the
Teamsters' complaint in the case-in-chief was permitted to be
withdrawn, with prejudice, on July 6, 1993.
JURISDICTION
The Board has jurisdiction over this matter pursuant to
26 M.R.S.A. 968(5) (1988 & Supp. 1992). The amended complaint
alleges violations of 26 M.R.S.A. 964(1)(A), (B) and (C)
(1988). Neither party has objected to the Board's exercise of
jurisdiction herein.
POSITIONS OF THE PARTIES
The Teamsters contend that there has been one written
recordation of disciplinary action for violation of the
ostensible Douglass Street no-parking rule prior to the parties'
bargaining stalemate, that during the stalled negotiations there
has been an escalation both in the number and level of
disciplinary measures, and that the District has discriminatorily
visited discipline only on those employees whose cars parked on
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Douglass Street have displayed signs decrying: the District's
treatment of employees represented by the Teamsters, the status
of negotiations and/or the District's wastefulness.
The District contends that the seemingly dramatic increase
in both the frequency and severity of discipline is a direct
result of employees' concerted refusals to heed requests to
comply with a Douglass Street no-parking policy historically
established and consistently enforced.
FINDINGS OF FACT
Harvard Brassbridge is the Teamsters Union Local 340
Business Agent who services a collective bargaining unit of
employees of the Portland Water District which is described:
INCLUDED: Employees in the following departments:
construction and water operations,
wastewater, general services, marketing and
customer services, lake operations and
laboratory, engineering and general office.
EXCLUDED: General forepersons, administrators,
executives and confidential employees.
The parties have been in negotiations since September of 1992.
They have been through mediation and have filed for fact finding.
There are no negotiations presently occurring.
The portion of Douglass Street at issue in this case affords
on-street parking to customers of the District as well as to
residents and guests of residents of a nearby apartment house.
Douglass Street runs past the business entrance to the District.
The District requested the City implement limited time parking in
front of the District, on the District side of Douglass Street.
Parking on the District side of Douglass Street is limited to
fifteen and thirty minutes. Parking on the opposite side of the
street is limited by the City of Portland, only in respect to
prohibition of overnight parking. Although Douglass Street is
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closed to through trucks, the District's trucks are excepted by
ordinance.
On April 26, 1993, the Teamsters called a press conference
and staged a demonstration on Douglass Street and Brighton Avenue
to bring their "case" to the attention of the public. Teamsters
members picketed and distributed leaflets. The demonstration
coincided with a District Trustees' meeting. After the meeting,
many of the picket signs were taken home but some were put on
trees, telephone poles and sign posts on public property in the
area in front of the District on Douglass Street. All of the
signs were gone the next day. To continue their demonstration,
the Teamsters arrived and picketed before work, placing their
signs in their cars' windows on departing Douglass Street for the
workday. Some signs, posted in a grassy public area, have
remained during the last few weeks.
Although ordinarily the Douglass Street unlimited parking
area would be nearly empty during the day, when the employees
decided to disregard the policy en masse available parking along
the entire side of Douglass Street opposite the District was
filled to capacity. The District's management decided to
implement a measured approach to the concerted activity by
waiting a few days while reminding employees of the policy and
pointing out its violation. In compliance with General Manager
Dan Jellis' wishes, the District's subordinate managers refrained
from enforcing the policy for three days at the commencement of
the Teamsters' demonstrations. On the fourth day they notified
employees of the policy and of the District's desire that they
come into compliance therewith.
The Teamsters were given adequate notice that the District
would enforce the no-parking rule. The District notified
Brassbridge in writing that in May it was the District's
intention to enforce the no-parking policy. The Teamsters "felt
[they] had every right to park on Douglass Street and to
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demonstrate in that manner." Progressive discipline was used and
no employee was suspended without having been given written
notice of the policy and being informed that further violation
would result in suspension. In some unspecified cases, verbal
warnings were not documented in writing.
The District has received calls from customers and adjacent
residents inquiring about the picketing. No District manager has
reported to the police department or to the traffic engineering
department of the City of Portland that parking on Douglass
Street has created an unsafe condition. The City has never
approached the District concerning compliance with the
requirements which the District's Douglass Street no-parking
policy relates as having supported the granting of an historical
but unspecified variance.
The District's parking lot has existed since the 1950s. It
has been enlarged twice and has been paved. There was an
undisclosed written policy in effect prior to the present policy.
The District's lot is large enough to accommodate all 160 of its
on-duty employees. The distance of the parking lot from the
District's front entrance is 250 feet. Deliveries of materiel
and supplies to the District are made through the St. James
Street entrance. The District's present parking policy, issued
on March 2, 1989, is as follows:
PWD POLICY/PROCEDURE LETTER # 2-89 (Supersedes #51.87)
SUBJECT: Employee Parking Policy
Parking spaces are available for all employees in the
general parking lot located between Douglass Street and
Massachusetts Avenue.
I. Employee Parking Lot
This lot for employee use, is provided to accomplish
the following:
- Employee convenience and increased vehicle
security;
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- Reduce exposure to public traffic;
- Make Douglass Street more passable for our equipment
as well as emergency vehicles;
- Provide good public relations with the neighborhood;
- Live up to the City of Portland's Certificate of
Occupancy.
When the District applied to the City of Portland for
the approval to build the employee parking lot, A
Variance Was Agreed To By Both Parties that all
employees would use the lot and leave Douglass Street
clear. This overcame the objections of the surrounding
neighbors.
Standby personnel and the shift Control Center Operator
will have a parking space designated for their use.
Designated parking spaces for female employees will be
continued for the near future. With paving and better
lighting, the need for special consideration has been
eliminated.
District vehicles are permitted in the employee parking
lot by supervisory direction only.
Parking in this employee parking lot is at the
employee's own risk, however, the District will make a
reasonable effort to provide safety and security
through adequate lighting and fencing along with signs
designating the area as "Employee Parking and Private
Property - No Trespassing". The District will not be
liable for any damage or theft occurring while being
parked there. For your own protection, please keep
your vehicles locked at all times. There will be no
storage of unregistered or uninspected vehicles in the
parking lot.
Any violations of the above will be subject to the
District's Disciplinary Procedure.
II. Construction/Inventory Area
Only District - authorized vehicles are permitted in
the Construction/Inventory Stock Area. The intent is
to limit the exposure an employee's vehicle will have
to damage by construction vehicles and equipment and to
insure proper control of District materials.
______________________________________________
Joseph B. Taylor, General Manager
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______________________________________________
Robert L. Gilmore, Director of Human Resources
(Emphasis in original.) This policy was posted on the District's
official bulletin boards in 1989 and again in April/May of 1993.
Although the District possesses an orientation checklist
with spaces for the initialling of subjects such as the parking
policy, the policy is not listed thereon and no initialled
checklists were produced at hearing. Employees do not disclose
their auto license plate numbers to the District. New employees
have been told variously they either should or must use the
employee lot. James West told employees they must park there
when he conducted new employee orientations prior to the
centralization of orientations in 1990-91.
The District's application of the policy has been to require
employees to refrain from parking on Douglass Street. The
District has encouraged but has not insisted that its employees
park in the district's lot. Parking on St. James or Elizabeth
streets has not been considered incompatible with the policy.
Cars of family members under the control of District employees
have been considered by the District to fall within the policy.
Lynn Brett, who has worked on each of the District's shifts,
occasionally parks his car, with a vanity plate which reads
"BRETTS", on Douglass Street. He's never been asked to move or
been disciplined for parking on Douglass Street. On call,
evening and night shift personnel, and individuals with limited
mobility, restrictions to light duty or doctor's appointments
have all been allowed to park on Douglass Street. General
Foreman Frank Meader has parked his truck and boat on Douglass
Street during the summertime. Employees are more likely to be
found parking on Douglass Street on paydays. Steve Rourke has
parked on Douglass Street Also. Dobson was also observed by
management personnel parking on Douglass Street prior to the
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April 26 demonstration and was not admonished for it. Dobson
spent his days of suspension picketing on Douglass Street. He
observed Frank Meader, District General Foreman, recording
license plates on cars exhibiting signs between 8:00 and 8:30 on
Douglass Street. Previous to the April/May 1993 timeframe, the
policy was enforced only when it was reported that there was a
violation or when someone was observed to be in violation during
the business day. Violators were identified previously through
personal recognition, or inquiry into the ownership of vehicles
parked at length in front of the District. The taking of license
plates and identification by having the Bennett firm run the
plate numbers was instituted after April 26, 1993, at Human
Resource Director Robert Gilmore's direction.
A grievance filed by Rick Woodbury on January 27, 1993,
complained that as part of a pattern of harassment by supervisors
Steve Rourke and Jim Pandiscio, Woodbury had been told by his
foreman that he couldn't park on Douglass Street. Woodbury
immediately began parking in the District lot after the incident.
The grievance appeared to attenuate at Step II with assurance
that the harassment would be supplanted by better communication.
With the exception of Woodbury, prior to April 1993, "a word was
enough" to invoke compliance with the policy. Although after
April 27, 1993, verbal warnings respecting parking infractions
were documented in employee files, a copy of the documentation
was not customarily given to the employee. Brassbridge is not
ordinarily notified of verbal counsellings or written warnings
absent the filing of a grievance but is usually notified of
disciplinary suspensions. Clifford Dudley's initial discipline
for parking policy infraction predates the Teamsters' notice to
the District that he was requested to testify in this proceeding.
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The following disciplinary actions have occurred with regard
to the Douglass Street no-parking policy:
Employee Discipline Imposed by Date
Barry Webster documented verbal Jim West 05/10/93
Barry Webster written warning Jim West 05/11/93
Barry Webster 1 day suspension Jeffrey Nixon 05/11/93
Mark Oliver documented verbal Jim West 05/10/93
Mark Oliver written warning Jim West 05/12/93
Mark Oliver 1 day suspension Jeffrey Nixon 05/12/93
Mark Oliver 5 day suspension Jeffrey Nixon 05/13/93
Duane Pedneault documented verbal Steve Rourke 05/13/93
Duane Pedneault documented verbal E. Hoermann 05/13/93
Duane Pedneault written warning Steve Rourke 05/14/93
Duane Pedneault 1 day suspension Steve Rourke 05/14/93
Eric Hyland documented verbal A. Sanford 04/29/93
Eric Hyland written warning G. York 05/04/93
Eric Hyland 1 day suspension G. York 05/05/93
Cliff Dudley written warning G. York 05/20/93
Ralph Dobson documented verbal Jim West 05/04/93
Ralph Dobson written warning Jim West 05/05/93
Ralph Dobson 1 day suspension Jim West 05/05/93
Ralph Dobson 5 day suspension Jim West 05/06/93
Frank Allen documented verbal Jim West 05/18/93
John Charlton documented verbal Jim West 05/11-12/93
Lee Early documented verbal Jim West 05/11/93
Richard Greenwood documented verbal Jim West 05/18/93
Martin Griffin documented verbal Jeff Nixon 05/18/93
Craig Landry documented verbal Jeff Nixon 05/11/93
Greg McLean documented verbal Jeff Nixon 05/12/93
Wilder McManus documented verbal Jeff Nixon 05/17/93
*Rick Woodbury documented verbal Steve Rourke 05/05/93
Tom Webster documented verbal Steve Rourke 05/14/93
Tom Webster written warning Steve Rourke 05/18/93
Jeff Greaves documented verbal Jim West 05/05/93
Jeff Greaves 1 day suspension Jim West 05/06/93
Jeff McGill documented verbal Jim West 05/04/93
Jeff McGill written warning Jim West 05/05/93
Tracy O'Leary documented verbal Jim West 05/10/93
David Taylor documented verbal Jim West 05/10/93
*Woodbury's documented verbal warning states the progressive
disciplinary steps as: written warning, short 1 to 5 day
suspension, long 6 to 10 day suspension and then termination.
(A verbal warning had transpired before his documented verbal)
In addition to the above-tabulated employees, Elizabeth Hoermann,
Director of Customer Relations and Public Information, has spoken
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to Pat Maloney and Jerry Curtois about parking on Douglass
Street. Neither had signs on their vehicles. Pedneault and
Griffin, listed in the table above, also had no signs in their
cars at the time of their infraction citations. Steven Rourke,
District Customer Service Supervisor, has spoken about policy
violations to Elaine Gervais in '91 or '92, Bill Perry in '86-'92
and Dottie Fontaine in '91 or '92. James West spoke to Joe
Halstrom about violating the policy in 1986 or '87. Jeffrey
Nixon spoke to Jeri Levesque in July 1992 about parking on
Douglass Street.
Eric Hyland is the Teamsters' steward in the District
bargaining unit involved in this case. Hyland does not possess a
complete set of the District's policies and received his first
notice of the no-parking policy on February 22, 1993, during his
representation of Woodbury at Step I of his January grievance.
On April 29, 1993, at 4:00 p.m. Hyland found an envelope taped to
his locker which contained a memo entitled "Notice of
Counselling" which stated that "[o]n the 29th of April at 3:00
p.m. [A. Sanford] talked to Eric Hyland about parking on Douglass
street and furnished him a copy of our policy #2-89."
On May 4, 1994, Hyland received a memorandum from G. York
which states:
Eric on Thursday you received notice from your foreman
and a copy of the policy letter #2-89. This was in
regard to your parking in the street on Douglass
Street. You have chosen to disregard this request and
in so doing you leave me no alternative but to proceed
to step 2 of the progressive discipline policy #8-92.
This is your written warning with a second request to
please park your vehicle in the employees parking lot.
This will be filed in your personnel file for not more
than one year.
On May 5, 1993, Hyland received a memorandum from G. York
which states:
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On the 29th of April you received counseling addressing
parking on Douglass street which violates our policy #
2-89. The second step was taken on May 4th as you were
again parked on Douglass Street in violation of the
same policy, on the 4th of May we went to step II which
is the written warning. It is now the 5th of May and
you are still parking on Douglass Street in violation
of policy # 2-89. The third step in the discipline
procedure is Short Suspension.
I would allow you to move your vehicle to the district
parking lot and waive the short suspension however if
you choose to remain parked on Douglass Street I will
have no alternative but to proceed with step III of
policy which will be a one day suspension without pay
beginning 05/05/93 at 8:00 AM and ending at 4:00 PM.
I would remind you that the next step of the discipline
policy # 8-92 starts with a 6 day suspension without
pay.
Hyland did not park on Douglass Street after receiving the
one day suspension because he "couldn't afford to make a
political statement at the cost of economic disaster." Hyland
did park thereafter, with a sign on his vehicle, on Elizabeth
Street. No action has been taken against him for parking with a
sign on Elizabeth Street. One of his signs stated, "It looks
like the white collars at the Portland Water District have taken
over the streets. You'll have to park your cars behind the
barbed wire." Although Elizabeth Street abuts Douglass Street,
Hyland desired that his signs be displayed on Douglass Street
where public visibility was much more enhanced.
Ralph Dobson, who holds no union office, has processed
numerous (10 to 15) grievances as a member of Local 340,
primarily concerning management personnel doing union work. On
May 12, Dobson received a letter from the District by certified
mail; the full text of the letter is as follows:
Dear Ralph:
As you are aware, the Portland Water District has had
an Employee Parking Policy in effect for quite
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sometime. The latest one is Policy/Procedure Letter
#2-89 which has been in effect since 1989. This
Policy/Procedure states that the District has provided
ample parking spaces in its employee parking lot for
all employees. Under agreement with the City of
Portland made during the permitting process for the
expansion of that lot, Douglass Street was not to be
used for District employee parking. The policy was
designed to accomplish the following: employee
convenience and increased vehicle security; reduce
exposure to public traffic; make Douglass Street more
passable for the Districts equipment as well as
emergency vehicles; and provide good public relations
with the neighborhood.
On Thursday, April 29, 1993, as a reminder copies of
this Policy/Procedure were posted on the bulletin
boards and employees known to be parking on Douglass
Street were notified that they should be parking in the
parking lot provided.
On Tuesday, May 4, 1993, you disregarded this notice
and parked your vehicle on Douglass Street during
normal work hours. As a result you were given an
Documented Verbal Warning and told both verbally and in
writing that further willful violations of
Policy/Procedure will result in additional disciplinary
action.
On Wednesday, May 5, 1993, you again parked on Douglass
Street in violation of the Policy/Procedure Letter.
Because you chose to disregard the policy you were
issued a Written Warning and told that your vehicle
must be parked in accordance with the policy on that
day-Wednesday, May 5, 1993, before going to work. You
were verbally informed as well as in writing that
failure to do so would result in a one (1) day
suspension without pay effective immediately. Upon
your refusal to move your car, you were suspended for
one (1) day without pay effective Wednesday, May 5,
1993.
On Thursday, May 6, 1993, you again refused to move
your car and put it in the employee parking lot during
normal work hours and therefore were given a five (5)
day suspension without pay effective Thursday, May 6,
1993. You were also informed at that time both
verbally as well as in writing that further violations
of the Parking Policy or continued willful acts of
insubordination will result in your termination from
employment at the Portland Water District.
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Upon your return to work on Thursday, May 13, 1993, we
are asking that you park your vehicle either in the
Employee Parking Lot or on any side street. The
District is enforcing the parking policy only. The
fact that signs are on cars or trees and telephone
poles is not the issue. The District is living up to
its policy on parking on Douglass Street. Cars parked
on the side streets have not been an issue as well.
The District does not want to see an employee lose
their job over this issue but if you continue to
disregard this policy, they are forced into it, and
will have no other choice but to discharge you
according to the Progressive Discipline Polcy [sic].
In order to protect your job it is hopeful that you
will abide by the policy upon your return to work.
Please feel free to call me if you have any questions
in regards to this letter.
Very truly yours,
Robert L. Gilmore
Director of Human Resources
RLG:cmc
There was some discussion by the parties prior to Dobson being
discharged, with respect to permitting Dobson to continue to park
on Douglass Street if all other employees observed policy #2-89.
No agreement was reached. Employees presently are convinced that
the District will impose progressive discipline including
discharge for infractions of the no-parking policy. However,
these employees, represented by the Teamsters, feel that the
District hasn't the right to regulate the parking of employees
during their workday if they are parked on a public street such
as Douglass Street. The District has not directly attempted to
persuade employees to cease picketing. The District never asked
any employee to remove signs from their vehicles. The District
did request of stewards that they urge employees to observe the
Douglass Street no-parking policy.
Around April 10, 1993, hourly-paid District employees
removed two signs before 8:00 a.m. Two signs, each stuck in
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snowbanks, were removed from Douglass and St. James streets in
December. Dick Small, a member of the District's management, was
apprehended by two unit members after he removed one of the
employees' signs, and returned it after they threatened to call
the police.
A UPS driver stopped and spoke to Dobson, while he was
picketing, about what was going on at the District. UPS has
refused to make pick-ups at or make deliveries to the District
since the first week of May. The District has been required to
ship and pick up at the UPS terminal. There is no evidence of
significant effect on the District's business in this regard. At
least one bidder has informed the District that Federal Express
has refrained from delivering his bid. The bid was faxed
instead. No water service has been interrupted and no other
deliveries, such as those from E. J. Prescott Pipe, have been
interrupted. No signs have indicated a work stoppage, slow-down
or strike among employees of the District to be in effect.
Dobson posted a sign mounted on a stick which purported to
designate an "official picket line," beside a telephone pole on
St. James Street, for two hours. Brassbridge directed the sign,
which stated, "please don't cross our picket line," be taken down
by Dobson. No other signs have directly urged that deliveries to
the District be curtailed.
On May 25, 1993, there was a picket sign which read
"Teamsters Local 340, Official Picket Line" posted outside the
St. James Street gate. There is no indication of who posted the
sign. On May 27, 1993, and during the mornings of the preceding
two weeks, there were signs at unspecified locations on St. James
Street which stated, "Official Picket Line." There is
insufficient evidence to establish that any line cordoned-off the
James Street gate, or that these signs remained past the
beginning of the work day.
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DISCUSSION
We have previously announced our ultimate holding by
dismissing the Teamsters' amended complaint, which charges that
the District has "selectively enforced ["against union
activists"] and arbitrarily used the [Douglass Street no-parking]
policy in order to limit and inhibit proper organizational
activities like informational picketing." We hereby issue our
written findings of fact and conclusions of law. We announced
our holding orally and well in advance of this written opinion
because of the nature of the parties' dispute and the level of
discipline which appeared imminent for a large number of the
District's employees.
Preliminarily we note that of the conflicting testimony
concerning the date upon which the Teamsters' May 18, 1993,
witness notice was received, we credit that testimony which
establishes its receipt by the District after Clifford Dudley's
initial discipline for violation of the Douglass Street no-
parking policy. Accordingly, we find to be without merit the
Teamsters' suggestion that Dudley's discipline resulted from his
being identified as a witness--assumedly favorable to the
Teamsters. Additionally, the District's motion to dismiss for
failure to comply with Board Rule 4.03, taken under advisement at
hearing, is hereby denied. We think the District possessed
sufficient notice of what the Teamsters' allegations were to
prepare an adequate defense.
We find uncharged and insufficiently supported the
implication that the Teamsters unlawfully induced others to
refrain from making delivers to the District. Neither do we find
in these facts a significant pattern of District effort to
obliterate or prevent the lawful informational activities of its
employees.
The District's motion requesting deferral to the parties'
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grievance-arbitration procedure was denied at hearing. We do not
construe the Article II reservation to the District of "the right
to establish and enforce reasonable rules and regulations
pertaining to conduct and deportment of employees," to permit the
establishment of no-parking zones for employees. Neither do we
conclude that the Article XII proscription of shop steward
precipitation of specified job actions to provide a basis for the
parking policy discipline meted by the District. We find the
issue in this case to be whether the parties' past practice
includes a work rule establishing limitations on employee parking
on Douglass Street and, if it does, whether any such work rule
has been used as a pretext to curtail lawful informational
picketing. We now turn to the resolution of these issues.
Although the record establishes that the employee parking
lot has existed for quite some time it is uncertain exactly what
the District's parking policy was prior to the present one, which
we shall refer to as #2-89. Policy #2-89 is not completely clear
on its face, and it is less so in application. The testimony
establishes that there is a lack of consensus among the
District's managers that parking in the District's provided lot
is mandatory. Moreover, the policy itself does not explicitly
state that employees must refrain from parking on Douglass
Street. We conclude, however, that #2-89 reasonably conveys both
notice that the District and the City have reached an agreement
that employees will not park on Douglass Street and notice that
violators will be subject to the District's disciplinary
procedure. Additionally, employees were specifically notified of
the District's interpretation that Douglass Street was off
limits, after the three-day grace period and before serious
disciplinary action. We find the disparity in pre- and post-
April 27, 1993, disciplinary measures unremarkable in light of
the Teamsters' avowed purpose to concertedly persist in the use
of Douglass Street parking, as the situs of its informational
picketing program. We find credible that evidence establishing
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that employees had been frequently admonished not to park on
Douglass Street in the past and that evidence establishing that
merely asking people to move had previously been sufficient.
It is undeniable that the prime location for the Teamsters'
informational picketing was directly across Douglass Street from
the District entrance used by its paying customers. However, the
Douglass Street no-parking rule had not only long been on the
books, but had long been applied, even if on infrequent occasion.
The apparent lack of attempt to catch every #2-89 violator in the
past is no more convincingly explained by the Teamsters' argument
of "intent to chill" than it is by the apparently infrequent use
of the across-street parking by no more than one or, at the most,
two cars at a time.
Although it is always regrettable when employees lose their
jobs or their pay, we cannot say that those losses which occurred
here were not based on the conscious choice of employees who
unfortunately miscalculated the enforceability of the no-parking
rule. The rule on its face is reasonably related to concerns of
the District which we cannot characterize as being wholly
irrational, and notice that it would be enforced at each
successive step of the District's progressive disciplinary policy
was amply made. These unfortunate consequences might not have
occurred if the affected employees had observed the time-worn
labor relations maxim, "work now, grieve later."
ORDER
On the basis of the foregoing record considered in light of
the parties' oral argument and by virtue of and pursuant to the
authority of the Board set forth in 26 M.R.S.A. 968(5)(A)
-18
(1988), it is ORDERED that the charges of prohibited practices
contained in the Teamsters' May 10, 1993, Motion to Amend must be
and are, hereby, DISMISSED.
Issued at Augusta, Maine, this 7th day of September, 1993.
The parties are hereby advised /s/___________________________
of their right, pursuant to 26 Peter T. Dawson
M.R.S.A. 968(5)(F) (Supp. Chair
1992), to seek review of this
decision and order by the
Superior Court. To initiate
such a review, an appealing /s/___________________________
party must file a complaint George W. Lambertson
with the Superior Court within Employee Representative
fifteen (15) days of the date
of issuance of this decision
and order, and otherwise
comply with the requirements /s/___________________________
of Rule 80C of the Maine Rules Howard Reiche, Jr.
of Civil Procedure. Employer Representative