STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-38
Issued: March 24, 1994
___________________________________
)
IRENE Y. TREPANIER and )
CONSTANCE B. BAILLARGEON, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
DELMONT J. PERRY, )
)
Respondent. )
___________________________________)
This case was commenced on June 7, 1993, by the filing of a
prohibited practice complaint with the Maine Labor Relations
Board (Board) in which Irene Y. Trepanier and Constance B.
Baillargeon allege that Maine Teachers Association (MTA) UniServ
Director Delmont J. Perry has violated 26 M.R.S.A. 963,
964(2)(A)[fn]1 & (C)(4), and 965(B) & (C)[fn]2 (1988). More specifically,
the complaint alleges that Ms. Trepanier and Ms. Baillargeon were
denied contractual seniority rights during an involuntary
geographical transfer within the Westbrook School Department.
The complaint alleges that Ms. Trepanier spoke to Westbrook
_________________________
1The exact language used in the complaint alleges a
violation of "Section 964 line A and Lines 2, public employee
prohibitions, line C section 4." We have construed the former
portion of the charge to allege violations of the duty of fair
representation prohibited by 26 M.R.S.A. 964(2)(A) (Supp.
1993).
Since there is no evidence of engagement in the blacklisting
of public employees and since we construe the latter portion of
the charge to allege violation of 26 M.R.S.A. 964(2)(C)(4)
(Supp. 1993), we hereby DISMISS the latter portion of the charge.
2At best, these allegations seem to charge a violation of
the bargaining obligations set forth in Section 965 which
violation is prohibited by Section 964(2)(B). These charges are
not adequately supported by proof and are hereby DISMISSED.
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Teachers Association (WEA)3 Grievance Chair Randy Kassa about the
transfer on June 10, 1992, and never heard from him again. The
complaint alleges that the Complainants met on July 15, 1992,
with Westbrook School Superintendent Ed Connolly, who told them
they "had to accept the openings being offered to them or resign
from the school department," and that they met with Assistant
Superintendent Francis Amoroso and Director of Maintenance Dan
McCarthy on August 27, 1992, and "received the same explanation
from them." The complaint also alleges that at their new
workplace assignments Complainants were required "to punch time
clocks three times during [their] five hour shifts" by walking a
"considerable distance" between school buildings, to "haul trash
out to the dumpsters" unlike any similarly situated employees, to
"secure the buildings . . . a duty that eight hour full time
employees have always [taken] responsibility for," to use
defective vacuum cleaners, and to wash a comparatively inordinate
area of floor.
The complaint avers that: On December 7, 1992, the
Complainants and Trepanier's husband Robert met with Perry, who
agreed with Complainants on a variety of contract violation
issues and who composed a draft grievance directed to Kassa
through WEA President Carol Meehan. Hearing nothing thereafter
from Meehan or Kassa, on January 8, 1993, Ms. Trepanier contacted
Kassa who told Trepanier that he and Meehan would meet with
Complainants that afternoon. At that meeting Meehan told
Complainants they had "no case or reason to proceed with the
grievance procedure." The Complainants disagreed and because
they were receiving notes criticizing their work performance,
left several unreturned telephone messages for Kassa.
Trepanier's husband contacted the Board's Executive Director
_________________________
3The WEA is the collective bargaining agent of a unit of
custodial and maintenance employees of the Westbrook School
Committee, in which the Complainants, as General Custodians, are
included.
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about these matters and later the same day the Complainants
received a phone call from Perry "who was upset with
[Complainants] about seeking help from the Labor Board."
Trepanier received a letter the next day from Perry stating that
Complainants, themselves, could "always file a grievance."
During a call by Trepanier to Perry the next day Perry said that
absent new issues there was no use in proceeding further.
As relief for the complained of violations the Complainants
ask for the following:
[1] Fair and equal representation by the MTA and its
representatives
[2] That contract language be honored by the school
Department officials, and its employees delegated to
manage others.
[3] Fair and equal work distribution concerning all
seasonal custodians. Also equal time clock punching
practices as other employees requirements.
[4] . . . [T]o be issued safe and operatable vacuum
cleaning equipment at the family living center. [and,]
[5] . . . [N]ot be subjected to any further
harassment, discrimination or any disciplinary actions
because of the actions taken by Constance Baillargeon,
and myself, Irene Trepanier.
In his answer, filed June 25, 1993, Perry states that: the
Complainants' allegations concerning events occurring before
December 1, 1992, are beyond the 6 months' statute of limitations
period and may not be addressed; Kassa investigated and processed
Complainants' grievance at Level 1, and it was without merit;
and, he was not upset with Complainants for seeking assistance
from the Board although he did send a letter to Trepanier
advising her of her right to file a grievance without going
through the WEA.
As defenses Perry states that Complainants have failed to
allege that he is a public employee, public employee
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organization, agent, member or bargaining agent of the same and
that "none of the facts alleged by Complainants can constitute,
as a matter of law, a prohibited practice" under the Municipal
Public Employees Labor Relations Law (MPELRL).
On June 28, 1993, the Executive Director dismissed the
complaint for uncured insufficiencies of which Complainants were
notified by letter of June 7, 1993. On July 8, 1993, the
Complainants filed an amendment asking that their complaint be
reinstated and asserting that Perry is "a bargaining and business
agent for the Westbrook School Department Employees Union." The
complaint was reinstated on July 13, 1993, without objection by
Perry. A letter reiterating Complainants' claim that Perry is "a
bargaining and business agent" was filed with the Board on
July 27, 1993.
A prehearing conference was conducted by Alternate Chair
Pamela D. Chute on September 23, 1993. The prehearing conference
memorandum and order issued by Chair Chute on September 29, 1993,
is hereby incorporated in and made a part hereof.4
An evidentiary hearing was conducted on October 18, 1993, by
Alternate Chair Pamela D. Chute, Employee Representative George
W. Lambertson and Employer Representative Howard Reiche, Jr. The
transcript of the hearing was completed on December 9, 1993, and
the last brief was received on December 21, 1993, pursuant to
briefing schedule as amended by the parties at Complainants'
request. Due to the serious illness of a board member, the
deliberation of the case was conducted on Thursday, January 20,
1994. The pro se Complainants are assisted in this matter by
Mr. Robert Trepanier. The Association is represented by Maine
_________________________
4The prehearing order memorializes the parties' stipulation
that "Perry is a representative or agent of the Westbrook
Education Association" and frames the issue for evidentiary
hearing as "did the union violate its duty of fair and equal
representation to Complainants."
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Education Association Counsel Shawn Keenan.
JURISDICTION
The Board has jurisdiction over this matter pursuant to
26 M.R.S.A. 968(5) (1988 & Supp. 1993). The complaint alleges
interference, restraint or coercion by the Association in
violation of 26 M.R.S.A. 964(2)(A) (1988).
POSITIONS OF THE PARTIES
In its posthearing brief, the Complainants ask "that all
custodial jobs and/or assignments be revaluated [sic] because of
the many changes that have occurred in their assignments."
Complainants argue that they "should receive pay adjustments that
should be equal to regular custodians because [they] perform that
[sic] same duties and assignments are equal." The Complainants
state that they "endured a lot of suffering . . . caused by
[their] actions of speaking up to what [they] believe was very
unfair treatment by [the Superintendent, his Assistant and the
Director of Maintenance] . . . [their] immediate supervisor." In
their brief the Complainants also allege that "Perry failed to
meet the requirements in Chapter 9-A Title 26, sec. 965,
paragraph B to meet with Complainants and the Employer for the
purpose of bargaining." The Complainants appear to allege that
in resolving the issues which they raised the WEA and the
Director of Maintenance reached solutions which, though
satisfactory to WEA and McCarthy were "in total violation of
[unspecified] contract language and rules, with total disregard
of [Complainants'] rights."
The Complainants relate in their brief their dissatisfaction
with budgetary decisions made by the School Department which have
increased their workload without a corresponding increase in
compensation and complain of the faulty equipment the school
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provides them. The Complainants fault the respondent for refusal
to discuss the issues in the case and suggest that Perry and
Kassa be replaced as WEA representative/bargaining agent and
grievance chair, respectively. Mr. Keenan's representation of
Perry in the instant matter is conclusionally contended by
Complainants to "present a definite conflict of interest."
Finally, the brief alleges a wide range of contractual violations
on the part of the School Department, which include, among others
which are indecipherable, violations respecting personal leave,
in-service days and shift differentials.
The Complainants ask that the "Union and employer with the
School Committee distribute contract copies to all support staff
employees," that Constance Baillargeon not be required to
continue to work alone at the isolated Canal School, "that
Baillargeon be relieved of some of the workload she alone now
performs, which in prior years was performed by three employees,"
and that the Board require confidentiality of grievance
processing.
In its posthearing submission, the Respondent contends that
Perry and the MTA may not be faulted for the decision not to
proceed, made by officers of the WEA, and that those officers,
and the WEA itself, have not been "named" as respondents.
Respondent alleges that it cannot be required to answer for the
various contract violation allegations which are made against the
Westbrook School Committee and its supervisors. Respondent also
contends that "[i]f the union did not process a grievance in a
"perfunctory manner," its determination on the merits of the
grievance need only meet the test of reasonableness."
FINDINGS OF FACT
Constance (Connie) Baillargeon and Irene Trepanier
(Complainants) are employed as General Custodians by the
Westbrook School Department. In that capacity, at all times
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material to the complaint, they have worked a 185-day year,
approximating the pupil school year, for five hours per day.
Lead Custodians work year round and for eight hours per day.
General Custodians are responsible to the Lead Custodians in
their daily work. A job description outlining the duties and
responsibilities of General Custodians was initially adopted
November 29, 1977, has been amended, and was most recently
approved on February 12, 1992. Complainants are members of a
unit of Custodial, Maintenance and Bus Maintenance employees
represented for the purposes of collective bargaining by the
Westbrook Education Association. Their negotiated wages, hours,
terms and conditions of employment are set forth in a multi-unit
collective bargaining agreement which also covers units of
Instructional Aide, Assistant and Library Technician, Bus Driver,
Clerical, Cafeteria and Pool Attendant employees. The contract's
wage provisions assign different rates to four classifications of
Custodians: General, Del/Lead, Jr. High Head, Sr. High Head.
The contract's benefits are, in part, based on whether Custodial,
Maintenance and Bus Maintenance employees are full-time year-
round. The contract states that "janitors working as plumbers',
electricians', [or] carpenters' helpers during the summer months
shall be paid maintenance pay."
Delmont Perry is employed as a UniServ Director by the Maine
Teachers Association (MTA).5 Perry's job description requires
him to give technical assistance to the Westbrook Education
Association (WEA). Perry was the chief negotiator and along with
then-WEA President Tom Curran signed the July 1, 1991-June 30,
1992, collective bargaining agreement, which covers the
bargaining unit in which Complainants are included. The contract
contains no statement of affiliation of the MTA or NEA with the
WEA. The Contract, in Article IV, Leaves, Section G, at page 13,
_________________________
5The Complainants have not alleged that they are members of
the MTA or NEA.
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lines 15 through 21, provides for a one year unpaid leave of
absence for any member of the support staff elected to the
Presidency of the MTA. Article VIII, Dues Deductions, provides
on page 15, line 3, through page 16, line 4, for automatic dues
deductions for the National Education Association, the Maine
Teachers Association and the Westbrook Education Association.
Perry did not, during any time material to the complaint, explain
to the Complainants his role as a UniServ Agent, or disclaim
responsibility for contract administration or grievance
processing respecting the WEA's collective bargaining agreements.
Complainants reasonably believed that Perry was an agent of the
WEA for grievance processing purposes. Perry rarely handles
grievances on behalf of individual employees. Perry does not
determine whether local associations' grievances go to
arbitration. Perry usually only advises executive boards,
suggests options to them and assures that grievants are given the
opportunity to address the executive boards.
Prior to June 1992, the Complainants were assigned together
at the Westbrook Junior High School. They joined the WEA during
the summer of 1992. In November of 1991, Trepanier told Junior
High Math Teacher and WEA Grievance Committee Chairman Randy
Kassa6 that punching time clocks was a requirement at the Junior
High School for only some people and that some "girls" were
punching others in. She did not file a grievance over these
matters at that time and merely wanted Kassa to "check up" and
"get information" concerning the disparity. Complainants never
indicated to Kassa that selective time clock use was a problem
which they wished to grieve. On November 17, 1991, after
investigating the requirement that Custodians at the Junior High
School punch time clocks not used at other district buildings,
_________________________
6Trepanier refrained from meeting with Bob Gilman, WEA
steward and day shift Custodian, because she assumed his
friendship with McCarthy would cause such a meeting to be a waste
of time.
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Kassa concluded that although there was an inequity he would, for
fear clocks would be installed in all buildings, drop the matter
after mere request for removal,7 if there was no further
complaint from the WEA custodial representatives and management
resisted on Management Rights grounds. Kassa's investigation
further revealed that if there was an available time clock, all
employees were required to use it. Kassa relayed this
information to Complainants and to then-WEA President, Tom
Curran.
Complainants were informed by Director of Maintenance David
McCarthy on June 13, 1992, before the end of the 1991-92 school
year, that their jobs, two of four General Custodian positions at
the Junior High School, were being done away with. Complainants
orally asked if they could be assigned to Congin School or Prides
Corner rather than at Canal School and the Family Living Center.
They were told by Dave McCarthy that the alternative positions
which they had asked for were filled and that they could not
displace the incumbents. Complainants orally appealed to
Superintendent Ed Connolly and Assistant Superintendent Francis
Amoroso and were told the same thing. On the (undated) occasion
of the retirement of a General Custodian at the Congin School,
Complainants asked if they could transfer there and were refused.
No vacancy was posted as a result of the retirement. The
collective bargaining agreement in effect provides, as follows,
respecting seniority rights in bumping:
Transfer Rights
Seniority shall be defined as that employee having the
most years of service employed in their unit of the
Westbrook School Department. Application for transfer
shall be considered according to seniority and ability
as determined and defined by the Administration.
_________________________
7There is no evidence that this request was made.
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Complainants had greater seniority than the remaining Custodian
at the Congin School.8 Complainants asked to be permitted to
begin working at Canal at 2:00 p.m., their usual start time for
the previous 17 years, but were told they had to start at
3:00 p.m.
It was after their initial efforts with the school
administration failed that Complainants decided to go to the
Westbrook Education Association (WEA). The issue of whether the
Complainants could employ bumping rights to avoid transfer to
Canal School, one of two available positions, was first raised by
Complainants with Kassa on June 10, 1992. Canal School was
undesirable to the Complainants due to its isolation and history
of vandalism. Canal School is located 1/4 mile from the nearest
house and is surrounded by woods. Bricks have been thrown
through windows there and telephone lines to the building have
been cut. At some unspecified point in time two female
Custodians at Canal were replaced by a male Custodian because the
School Department didn't want two females there alone.
Complainants desired to bump any less senior School
Department custodial employee into the Canal School and to occupy
the consequently vacated position, as well as an available
position at the Living Center. Complainants' initial contact
with Kassa in this regard also involved their concern with and
desire to be informed about the consequences of signing an
"intent-to-hire" form which the School Department had distributed
for their execution with respect to the 1992-93 school year.
Complainants did not desire their execution of the form to be
interpreted as their agreement with or acceptance of assignment
to Canal and the Living Center and were exploring the matter with
Kassa prior to signing. Kassa advised them that their execution
_________________________
8This remaining Custodian was a full-time year-round or
"Lead Custodian."
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of the form did not constitute an acceptance of the pending and
undesired building assignment. Trepanier subsequently signed the
form on June 17th.
Kassa consulted with the WEA President and determined that
the Complainants were the least senior employees at the Junior
High School. Complainants did not possess more seniority than
any other General Custodian which they desired to bump. Kassa
raised the Complainants' desire to avoid Canal with Director of
Maintenance Dave McCarthy, Complainants' supervisor, who informed
Kassa that the positions of Lead Custodian and General Custodian
were separate job classifications. Kassa determined that neither
of the Complainants wanted to be upgraded to full-time year-round
Lead Custodians. Kassa anticipated that willingness to work as a
Lead Custodian would likely be advanced by the administration as
an "ability" within the meaning of the contract's Transfer Rights
provisions, which state that applications for transfer "shall be
considered by seniority and ability." Kassa therefore concluded
that Complainants could not bump less senior Lead Custodians.
Kassa sat down with the Complainants, who were working at his
school in June of 1992, and explained the results of his
investigation concerning their transfer rights inquiry. It was
at this meeting that Kassa gave the Complainants his unlisted
phone number9 and told the Complainants to contact him at home
during the summer, when they actually received their building
assignments.
Written notice of Trepanier's work reassignment was given to
Trepanier and WEA President Meehan, among others, on July 23,
1992. The notice from Administrative Assistant Amoroso states:
Re: Reassignment
_________________________
9The record does not reveal whether Kassa told Complainants
the number was unlisted.
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This will confirm your meeting with Mr. Connolly in
which it was made clear that the reduction of three
custodial positions (two general and one lead
custodian) resulted in two general custodians being
reduced from the Junior High School.
Since vacancies exist only at Canal School and the Home
and Family Living Center, your employment will continue
with your reassignment to these schools as follows:
1. Report to Canal School at 3 PM daily and
conclude your work at 5:30 PM daily.
2. Following your duty at Canal report to the
Home and Family Living Center, punch in and
conclude your work 2 1/2 hours later.
It is understood if you are unable to report to work
you are to notify both of your supervisors, Mr. David
Dutton and Mrs. Theresa Harris.
You will be receiving further information on the
opening of school regarding your duties and to whom and
where you should report.
This paperwork from McCarthy effecting Trepanier's assignment to
Canal and the Living Center was not received by registered mail.
The Complainants were assigned to work together for two 2 1/2
hour shifts beginning by punching in first at Canal at 3:00 p.m.
and then moving to the Living Center after punching in at the
High School. It is approximately a 10 minute walk between the
time clocks. If they had been given the opportunity, Trepanier
and Baillargeon would each have worked separately at the Living
Center. Trepanier had no knowledge of how vacancies were
handled prior to the time of her reassignment. On August 27,
1992, Complainants again met with Amoroso and McCarthy who told
them that their seniority was insufficient to help them obtain
their desired transfer. They were also told that the WEA would
not be able to achieve a different result.
Kassa hoped that over the summer vacation possible shifts in
position, subsequent retirements or requests for transfers to
other buildings might change the prospect of aiding the
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Complainants' desired avoidance of the Canal School. Neither
Complainant called Kassa during the summer. Kassa may be reached
in his representational capacity by phone10 and by interoffice
mail at the Junior High School, and can be reached at his
unlisted home phone number. When school resumed, Bob Gilman, the
WEA Custodian representative at the Junior High School, informed
Kassa that Complainants had gone directly to Superintendent
Connolly and Administrative Assistant Amoroso who had agreed that
Complainants could work together for 2 1/2 hours at both the
Canal School and the Living Center, rather than separately for
five hours at the two locations. Amoroso had scheduled the two
successive 2 1/2 hour shifts of work in the reassignment
memorandum dated July 23, 1992. Although Carol Meehan was noted
on the memorandum as having been copied, Kassa first saw the
memorandum in December of 1992.
Complainants did not inform the WEA that they were going to
talk to the Superintendent and Administrative Assistant. The
contract's grievance procedure gives the WEA the "opportunity to
be present and to state its views at all formal levels." The
contract's informal grievance procedure anticipates discussion by
grievants with their immediate supervisor. Formal procedures
begin thereafter, when a grievant, dissatisfied with informal
discussion, submits a written grievance to the immediate
supervisor.
Trepanier contacted Meehan when she got no response from
Kassa. Meehan called Theresa Harris, Trepanier's supervisor at
the Living Center. Harris came to the Canal School, upset, and
asked Trepanier why she had gone to the union and why she hadn't
talked with Harris about her concerns first. Trepanier called
MTA headquarters in Augusta when "nothing happened" and was told
_________________________
10Secretary Carol Meehan, WEA President, answers the phone
at one school. Donna Higgins, WEA Secretary, answers the phone
at another.
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to contact Perry. Complainants arranged to meet with Perry
during the first week of December of 1992. They met with Perry
on December 1. Perry asked them if they had contacted the WEA.
Complainants said that they could not reach the WEA. Perry
considered this statement dubious. After some discussion an
appointment was made with Perry for December 7th. Prior to the
December 7 meeting, Perry read through the collective bargaining
agreement and at the meeting he asked for information concerning
particular issues.
Over the course of the two December meetings with Perry, the
Complainants covered a variety of subjects, in addition to
seniority/transfer rights. Complainants spoke with Perry about
the defective vacuums which they were being required to use on an
increased area of floor space. Trepanier told Perry that the
Complainants had used their own vacuums because the School
Department-provided vacuums were unsatisfactory. Complainants
were told by someone that the budget was too low to permit
securing better vacuums. Perry "warned [Complainants] off
bringing in their own vacuum cleaner" and told them to report the
defective vacuums. Perry included a request for shift and
multiple building wage differentials in a draft grievance which
he composed at the December 7 meeting, although Trepanier was not
concerned with issues respecting the payment of shift or multiple
building differentials. "All she wanted was to be treated
'equal.'" Complainants told Perry that they alone in their job
class were required to carry trash out to the dumpsters.
The Complainants spoke with Perry about two time clock
issues. The Complainants didn't mind using the clocks but did
not want to have to walk back and forth to the High School from
the Living Center to use them, especially in the winter. The
"selective use of time clocks" issue raised with Perry was not
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different than that raised the previous year.11 The time clock
issue respecting Complainants having to punch in and out at both
Canal and the Living Center was partially addressed by McCarthy
who changed the requirement to consist of punching the clock only
three times by eliminating the requirement of punching out at
Canal. The Complainants were required to punch a clock three
times during a five-hour shift.12 There is no list of who is and
isn't required to use time clocks. At some point, time clocks
were installed in all the schools. Trepanier felt13 that the
distinction of who was required to use the clocks was based on
whether one "was liked and got along . . . with" McCarthy. The
Complainants told Perry that they alone in their classification
were required to take trash to the dumpsters14 and that they were
being required to secure the buildings in which they worked, a
responsibility previously only of eight-hour-per-day Custodians.
Although the General Custodian job description does not mention
the locking of doors, it does require Custodians to perform such
other duties as may reasonably be assigned. The job description
does establish emptying all waste baskets and waste containers as
a general daily duty. Perry asked Complainants why, if they were
having so much trouble with their jobs, they didn't just quit?
Complainants showed Perry one written teacher's complaint
which they had received. Perry told them to hang on to any notes
because he "would like to see them if they continue[d]." Perry
_________________________
11Complainants were the only Custodians punching clocks with
this frequency during five hours of work.
12They were required to punch in at Canal School and when
they left Canal, to go to the High School to punch in for the
Family Living Center. On completing their work at the Living
Center, they were required to punch out finally at the High
School.
13The basis of this feeling was not established.
14The specific complaint was the emptying of sixty to eighty
pound barrels of kitchen waste.
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told the Complainants that their concerns were legitimate and
composed a draft addressing the five or six issues which he
thought were at the core of the Complainants' grievances. Perry
gave the Complainants multiple copies of the draft, asked them to
give a copy to Meehan and to have Meehan instruct Kassa to file
the grievance. It was an auspicious occasion for Complainants.
They parted with Perry more relieved than they had felt in a
great while. Perry then called Meehan and Kassa and told them
that he needed background information on the Complainants'
grievance which, he advised, was en route to them. Perry's draft
of December 7, 1992, was typed up by Kassa on December 17, 1992,
as a Level 1 grievance. Perry was concerned that the time limits
in the grievance procedure might run before Complainants were
able to contact the WEA so he urged the Complainants to process
the grievance themselves if they couldn't make contact. Perry
told Trepanier that in retaliation for filing a grievance with
the School she could expect that her supervisors might "get
dirty" with her.
December 7, 1992, was the first occasion on which
Complainants had ever seen a copy of the collective bargaining
agreement applicable to them. On some undisclosed date,
Trepanier asked some unidentified person for a contract, was told
she would receive one, but never did.
Kassa had heard nothing further from Complainants concerning
their transfer issues until December 17, 1992, when a copy of the
rough draft of the grievance, which Perry had composed for
Complainants, reached him through the interoffice mail. Kassa
took the draft home and typed it up "more or less" verbatim.
Trepanier assumed that she would be present when Kassa met with
McCarthy about her concerns. Complainants did not ask to be
present at any stage of investigation or grievance processing.
Grievants whom Kassa has represented have generally not been
present for formal or informal grievance procedures. Kassa spoke
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to WEA custodial representative Bob Gilman at the Junior High to
whom repairs are ordinarily referred. Gilman had no record of
repair of the vacuum but said the vacuums had been checked and
found to be working properly. Kassa met with McCarthy informally
concerning the grievance15 and spoke with him on subsequent
occasions regarding documentation and corrective action.16
_________________________
15Kassa spoke to McCarthy about the issues using the typed
version of the grievance to assure accurate transmission.
16Kassa's memo to his computer/word processor file,
apparently either composed or modified after January 13, from
notes taken on the back of the typed grievance during his
conversation with McCarthy, states:
I spoke to Maintenance Supervisor David McCarthy
informally on or about December 22, 1991 about the
issues comprising a grievance by Irene and Connie. He
answered to each of the allegations. This information
is compiled from notes I took during the conversation.
1. A restructuring, impacting the Junior High, caused
a reduction of two part-time custodial positions
there. The Grievants were the two least senior
employees. There were no other employees in the
impact area they could bump. They were offered
two open positions at Canal and the Castle.
Superintendent Connolly allowed them to work
together, to split both assignments. McCarthy
will send me a copy of a memo. (Delivered to me
the following day)
2. Disposing of any and all trash is a responsibility
of the custodial personnel. Making sure a
building is secure during and at the end of a
shift is also a responsibility. (A copy of
custodial responsibilities was presented)
3. Time clocks for the remaining district buildings
were on order and would be installed on arrival.
(Time clocks were "on-line" in all buildings by
January 13). Rather than punch the clock 4 times
per shift (in and out at Canal, then in and out at
the High School for the Castle), Grievants punch
the clock only three times per shift.
4. The vacuums in question were checked and seem to
be operating properly. Bags on these models must
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McCarthy agreed to immediately provide additional garbage cans to
reduce the per/can weight by limiting the filling of cans to from
1/3 to 1/2 full. Kassa received no indication that McCarthy did
not provide cans and instructions as promised.17 Kassa had
observed the Custodian in his building checking to assure that
doors were locked and that rooms were secured as they were left.
McCarthy responded to Kassa that although there were no
other employees "in the impact area they could bump,"
Complainants had been allowed to work together at Canal and the
Living Center. McCarthy further responded that disposing of
trash was in their job description, that clocks would soon be
installed in all of the school buildings and that Complainants
needed only punch the clocks three times per shift.18 McCarthy
stated that the vacuums had been checked,19 that emptying the bags
_________________________
be emptied periodically. Procedure is to tag
problem machinery and send it to the Junior High
for maintenance or repair.
5. McCarthy advises that in his ten years with the
district, part-time custodians have never received
evening pay differential. Only full-time (Lead)
custodians have received shift differentials.
17Trepanier had on some unspecified previous occasion
initially informed Kassa in person and over the phone concerning
the heavy-lifting requirements in her job. He said "[h]e was
going to see to it." After that Trepanier heard no more of the
matter except that an unidentified report from an unknown source
stated that "all [they] had to do was empty wastebaskets" and
that they "had plenty of them."
18One employee, of unspecified classification, worked at
Canal School for two hours during an unspecified period and was
permitted to work without using the time clock. When Trepanier
asked McCarthy to explain the disparity he explained, "that's
Sharon and that's you." There is no indication that this
information was passed on to Perry, Kassa or Meehan.
19According to Complainants, the most that the School
Department did with respect to the vacuum was to check the vacuum
over, place it in a closet and supplement it with another "which
wasn't much better." The Complainants used a vacuum brought in
-18-
regularly was required, and that in the final analysis defective
items needed to be tagged and sent to the Junior High School for
repair. McCarthy also informed Kassa that the past practice for
his ten years at the District was that wage differentials had
never been applied to part-time Custodians, only full-time
Custodians.
Kassa concluded that the administration had sufficient
answers to, or was presently following through on solutions to
each of the issues. Kassa ended his processing of the grievance
at Level I, the first stage of the formal procedure after
conferring with the WEA president, other custodial staff members,
association members and the administration. During Kassa's
grievance committee chairmanship, McCarthy has never proven
either untruthful, or unreliable in taking promised action.
Perry talked to Kassa and Meehan during the Christmas
break,20 because of (unspecified) time limits on some of the
issues in the grievance, so as to get it filed "if there were
grievances there."21 Both told Perry "that they had dealt with
_________________________
by Mr. Baillargeon to vacuum a shag carpet "where kids would
play."
20There is no exact indication of the full length of the
Christmas vacation. It was in effect, at least, from Christmas
day through January 3, 1993.
21The contract's grievance procedure, Article II of the
contract, set forth on pages 2 through 8, requires unit members
to personally process their grievances through both the Informal
Level and Formal Level One. If a grievant is dissatisfied, the
grievant must present the grievance in writing to the immediate
supervisor. The supervisor's written decision must issue in five
days. If dissatisfied at Level 1 with the supervisor's response,
a grievant may, at Level 2, file the written grievance with the
Association for forwarding to the immediate supervisor. At this
level the Supervisor is obliged to meet with the grievant and the
WEA for the purpose of attempting to resolve the grievance. The
supervisor must render a written decision within 5 days of
review. A dissatisfied grievant may, at Level 3, file the
grievance with the Association for appeal to the School
-19-
all these issues the previous spring." Kassa related both his
conclusion that there was no valid basis for any grievance and
the rationale supporting that conclusion, which was in large part
based on McCarthy's responses. Kassa told Perry that although
there was no valid grievance they would look into the matters
again and would get back with Perry. On January 4, Kassa
arranged a meeting between Meehan, Complainants and himself at
Prides Corner School on January 7th or 8th. Issue by issue,
Kassa went over the grievance and his investigation and explained
to Complainants that he did not believe they had a meritorious
grievance. Kassa requested any additional information
Complainants might then possess or later acquire. Meehan seemed
frustrated and asked Complainants: "What do you want? What can
we do?" In response they said, "we want our jobs at the junior
high back." Meehan then informed them that there were no jobs at
the Junior High. Complainants did not agree and still wanted to
proceed.
Complainants continued to work at their new and more
difficult job assignments22 and called Kassa repeatedly leaving
messages inquiring when they would hear from him and of what was
going on. Kassa called back once or twice, and then unfavorable
notes regarding Trepanier's performance began to appear in early
January. Trepanier received approximately five written teacher's
complaints at Canal, and when those subsided she began receiving
_________________________
Committee. A grievant dissatisfied with the School Committee's
decision may, at Level 4, file a written request with the WEA,
requesting that the WEA president submit the grievance to
arbitration. The GENERAL provisions of the grievance procedure
in Section D, page 8, lines 16 through 18, provides that
grievances "must be submitted in writing within twenty (20)
business days of the alleged violation."
22At some previous time "the duties at Canal School" were
fewer and performed by two females. After one of the females
reported to the police that she "saw a man in the window" the
females were replaced by a single male custodian.
-20-
notes on the blackboard at the Living Center. Trepanier was
upset at the public nature of the latter. Trepanier spoke with
Kassa "a couple of times" and sent him copies of some of the
written performance complaints. Trepanier heard nothing further
from the WEA and was not asked to meet further with Kassa or to
meet with Director of Maintenance McCarthy. Complainants felt
harassed and were experiencing problems eating and sleeping.
Trepanier "was really stressed out" and felt that there was
"[a]lways somebody on [her]." Trepanier hadn't received a
complaint for 17 years at the Junior High School. Trepanier has
lost confidence in her job performance, sees herself as paranoid,
is "always afraid that teachers aren't going to be satisfied with
[her] work again," and feels that she doesn't do her job well.
Complainants would at times punch out and then return to work for
1/2 hour for fear of receiving any unsatisfactory performance
notes.
Complainants felt that as dues paying members in good
standing the WEA was obliged to process their grievances.
Complainants felt that they should not be required to contact an
outside agency for assistance in resolving their problems at
work.
Prior to June of 1992, Custodians received a report once a
year evaluating how they performed their duties, describing how
they got along with kids and listing how much time off they'd
taken. That practice subsequently was curtailed. The
Complainants never got a bad report prior to the 92-93 school
year and had never before received a complaint about their job
performance.
After the January 8th meeting, Kassa met with McCarthy to
inquire whether any of the complaints which Complainants had
received from teachers had been formally lodged, or whether they
were reflected in Complainants' personnel files. McCarthy called
his secretary, instructed her to pull the Complainants' files and
-21-
confirmed that there were "no formal letters or reprimands or
complaints in their files." After the January 8 meeting, Kassa
asked Meehan to determine whether the WEA executive committee had
any information that he didn't already have. They did not
contact him with any different information.
When Trepanier heard nothing substantive by late March, she
reluctantly contacted the Labor Board on March 29th. Perry
called her on the afternoon of the same day. Trepanier told
Perry that she and Baillargeon were under stress at work, that
they didn't like their job assignments, that they felt Kassa
wasn't calling them and weren't sure what they were going to do.
Perry was very upset with Complainants for calling the Labor
Board. Perry said he didn't want to see Trepanier if she had no
new issues. Trepanier said she didn't want to pursue any new
issues, she merely wanted to pursue the previously existing
issues that she had already "put in for." Perry followed up with
a letter stating that Trepanier could file on her own and
inviting her to discuss with him any unfair treatment under the
contract. Robert Trepanier made a rude phone call to Perry
sometime thereafter, criticizing the MTA.
Perry, Kassa and Meehan met again on April 7 to be sure
there had been no lapses and to be sure there wasn't anything
that had been missed. At the request of the Board's Executive
Director, Perry set up an appointment with Complainants for
May 3, 1993, to determine if there were new or different issues.
Complainants failed to cancel or to attend. During the entire
period Perry obtained no evidence that there was any other work
site assignment that either of the Complainants could have been
given other than the ones which they already had. The facts
related to Perry by Complainants and the facts which were
supplied to Perry by the local association varied significantly.
Trepanier has never signed a grievance, was never asked to
and believes she had to as a prerequisite to the proper filing of
-22-
a grievance.23 Kassa's signature has, in the past, been
sufficient for grievance processing for individuals or groups of
employees. The WEA possesses complete discretion in grievance
processing.
Complainants, themselves, never filed "a formal grievance in
writing [with] their immediate supervisor." The provisions of
Article XII Conditions of Employment, Section 1. Seniority,
subsection 5, Transfer Rights, provides on page 19 at lines 16
through 22, for "unit" wide seniority. The record does not
establish that Complainants possessed more seniority than any
General Custodian sought to be bumped.
DISCUSSION
The Complainants believe that they have been treated
unfairly by the School Department and that Perry and Kassa have
failed to adequately represent them in their attempt to seek
redress under the contractual grievance procedure. The
Complainants have charged no prohibited employer practice which
would give us jurisdiction to consider the propriety of the
complained-of School Department actions. Therefore, none of the
relief which Complainants request to be awarded against the
School Department may be granted. The conduct of the School
Department is, however, relevant and has been considered, where
appropriate, in the determination of whether complained-of
responsive action, or inaction, by Perry or others as agents of
the Westbrook Education Association violates the duty of fair
representation.
_________________________
23There is no explanation of the basis of Trepanier's belief
in this regard. The contract clearly contemplates initiation of
grievances, even in the formal procedure, by unit members
themselves. See footnote 21 on pages 19 and 20. There is no
allegation or evidence that any WEA agent led Complainants to
believe the WEA was required to approve or to initiate unit
members' grievances.
-23-
Much of the evidence adduced by the Complainants concerns
events transpiring after the filing of the charge which are not
relevant to the question of whether the matters complained of
constitute a prohibited violation of the duty of fair
representation. Similarly, no prohibited practice may be based
upon events in the record which transpired more than six months
prior to the filing of the charge. See 26 M.R.S.A. 968(5)(B)
(Supp. 1993). The latter are admissible, however, and we have,
where appropriate, considered them as pertinent background
information to the extent that they aid our understanding of the
actionable events before us.
Complainants do not allege discrimination based on lack of
union membership. Additionally, although Complainants insinuate
that they have received a reduced level of representation, when
compared to that received by teachers, because their bargaining
unit is composed of employees who perform "menial work," there is
no evidence of the quality of representation received by teachers
from which to make the suggested comparison. Our consideration
of the merits of the Complainants' duty of fair representation
complaint has been restricted to a determination of whether the
WEA is guilty of a violation of that representational duty, due
to the action or inaction of Perry or any other of its represent-
atives, in the complained-of factual circumstances which occurred
on or after December 7, 1994. Upon consideration of all the
record facts and argument respecting the conduct of the WEA
and/or its agents we find no violation of the duty of fair
representation imposed by 26 M.R.S.A. 964(2)(A) (1988). The
Complainants have not proven the conduct of Perry or of any other
WEA agent to be arbitrary, discriminatory or taken in bad faith.
Nothing in the processing of Complainants' grievance by the WEA
or its agents may be said to be so far outside a wide range of
reasonableness that it rises to the level of irrationality. See
Velez v. Puerto Rico Marine Management, 957 F.2d 933 (1st Cir.
1992).
-24-
There is no dispute that the WEA and its agents owe a duty
of fair representation to all members of the Complainants'
bargaining unit. Lundrigan v. State, No. 83-03, slip op. at 6-7,
5 NPER 20-14013 (Me.L.R.B. Feb. 4, 1983), aff'd, 482 A.2d 834
(Me. 1984); Bradbury v. Washburn Teachers Association, No. 82-08,
slip op. at 4-5, 4 NPER 20-13014 (Me.L.R.B. Mar. 15, 1982);
Whitzell v. Merrymeeting Educators Association, No. 80-15, slip
op. at 9, 3 NPER 20-12004 (Me.L.R.B. Nov. 6, 1980), aff'd, No.
CV-80-124 (Me. Super. Ct., Sag. Cty., Dec. 28, 1982). In Stephen
Collier v. Penobscot Bay Teachers Association/MTA/NEA, No. 92-30
(Me.L.R.B. Sept. 25, 1992), aff'd, No. CV-92-478 (Me. Super. Ct.,
Ken. Cty., Apr. 10, 1993), we recently commented upon the nature
of this duty, as follows:
"The duty of fair representation imposes upon the
bargaining agent an obligation to represent fairly the
interests of all employees in the bargaining unit, in
good faith and without arbitrariness or invidious
discrimination." Branch 6000, National Association of
Letter Carriers v. NLRB, 595 F.2d 808, 811 (D.C. Cir.
1979). The duty applies from the formulation of
bargaining proposals, through the acceptance of
collective agreements to and including grievance
handling. See International Brotherhood of Teamsters,
Local No. 310 v. NLRB, 587 F.2d 1176, 1181 (D.C. Cir.
1978). The rule establishing the duty of fair
representation announced in Vaca v. Sipes, 386 U.S.
171, 190 (1967) and subsequently adopted by this Board
applies to all union activity and requires the union to
represent employees "adequately as well as honestly and
in good faith." Airline Pilots' Association,
International v. O'Neill, No. 89-1493, 59 L.W. 4175,
4176-8 (Mar. 19, 1991). Called upon to represent
employees who often possess different and sometimes
even competing interests, a collective bargaining agent
"may agree to terms favorable to some employees and
unfavorable to others, provided it acts in good faith."
Williams v. Pacific Maritime Association, 617 F.2d
1321, 1333 (9th Cir. 1980) (citing cases).
Collier, slip op. at 12-13. (Footnote omitted.)
Applying these standards we first examine the processing of
the Complainants' December issues from a "timeliness" perspective
-25-
commencing with the December 7, 1992, meeting with Perry. Perry
met with Complainants on two occasions (a Tuesday and the
following Monday) to afford them the opportunity to express their
complaints. Complainants have not alleged that they were not
afforded the opportunity to fully explain the nature or number of
their grievances. Because the rough drafts composed by Perry
were given to Complainants on December 7, for Complainants to
transmit to the WEA, we are only concerned with any unnecessary
delay which may have occurred after delivery of the grievance to
the WEA. The first evidence relating to the transmission of the
rough draft establishes that Kassa received a copy of the rough
draft of the grievance through the interoffice mail on December
17, 1992.[fn]24 Kassa spoke with Maintenance Supervisor McCarthy
three work days later, on December 22, 1992, about all of the
issues raised in the December 7 draft grievance. We conclude
that Kassa promptly initiated his investigation of the
Complainants' grievance.
We also find no improper delay in its completion. There is
no evidence of the exact length of the Christmas vacation period,
however, the record establishes that the Complainants were
scheduled in advance for and attended a January 7 or 8, 1993,
meeting with Kassa and Meehan. Complainants were informed at
that meeting of the WEA's conclusion that their grievances were
meritless and of the rationale supporting that conclusion.
Although Complainants were in disagreement with the ultimate
conclusion that the grievance was not meritorious, there is no
evidence that Complainants rebutted or even disputed the
underlying facts or rationale supporting Kassa's ultimate
conclusion. We cannot, therefore, conclude that Kassa's
continued unwillingness to proceed was the result of irrational
_________________________
24There is no indication of whether this copy of the
grievance was received via Meehan or directly from Complainants.
There is no indication of whether or when copies were given by
Complainants to Meehan.
-26-
intransigence. There is no allegation that delay in processing
eclipsed the grievances due to missed contractual filing
deadlines. Inasmuch as Complainants possessed the rough draft and
the capacity to file the grievance themselves at Step I of the
contract's formal grievance procedure, we do not find that the
grievance was rendered untimely through any delay in processing
by the WEA.
Having found that the grievances were not investigated in an
untimely manner, we now turn to a determination of whether the
WEA's refusal to proceed on any issue contained in the grievance
was arbitrary, discriminatory or based on bad faith.
Seniority Rights in Transfer
The Complainants raised their desire to avoid transfer to
Canal School through the exercise of seniority rights in bumping
in June of 1992. Kassa investigated their complaint and in June
of 1992 explained to the Complainants that the contract's
seniority provisions would not enable them to avoid the transfer.
Any alleged violation of the duty of fair representation
predicated on the WEA's processing or failure to process a
grievance pertaining to the transfer should have been raised by
the filing of a complaint with this Board within six months of
the running of the grievance filing deadline following the
effective date of the September 1992 transfer. See 26 M.R.S.A.
968(5)(B) (1988). No other alleged lost transfer opportunity
or seniority rights violation within the statutory limitations
period is clearly and concisely alleged or established.
Vacuum Cleaners
There is no record indication of the date upon which the
vacuums are alleged to have become defective. There is also no
indication of a date upon which the defective condition of
vacuums was ever unsuccessfully raised with the administration.
Further, there is no indication that Complainants were unable, to
-27-
the satisfaction of anyone in their supervisory hierarchy, to
perform their cleaning duties due to the defective state of the
vacuums. There is no allegation or evidence that any admonition
or discipline resulted from any such inability.25
Time Clocks
There is no indication that the nature of Complainants'
dissatisfaction with the time clock punching requirements changed
in any significant respect since the establishment of the
requirement and its implementation at the beginning of the
1992-93 school year. Therefore, as is the case with the
transfer/seniority issue, Complainants appear to possess no
actionable time clock issue falling within our statutory
six-month limitations period. Moreover, the Complainants have
not established that initiation of any time clock punching
requirement constituted a prima facie contract violation or
unlawful unilateral change. See generally, Teamsters Local Union
No. 48 v. Eastport School Department, No. 85-18, 8 NPER ME-17003
(Me.L.R.B. Oct. 10, 1985).
Pay Differentials
The record establishes that Kassa concluded that there was
no entitlement to pay differentials by Complainants based on
McCarthy's statements indicating a long-standing past practice of
the availability of such only to Full-Time Custodians. There is
no evidence which suggests that Kassa's reliance upon McCarthy's
statements was unreasonable. There is no indication that any
other General Custodian ever received differential pay. This
issue appears to be an add-on issue included in the grievance
solely on Perry's initiative respecting which the Complainants
were little concerned. Finally, because any entitlement to
_________________________
25We find that the teachers' notes were not causally
connected to defective equipment due to Complainants' steadfast
contention that the notes were not well-founded.
-28-
differentials commenced in September '92, Complainants are
foreclosed from faulting the WEA for failing to prosecute, on or
after December 7, 1993, matters which were waived by failure to
file with the Board within six months of the running of the
grievance deadlines shortly after any entitlement arose in
September of 1992.
Trash Disposal and Securing the Building
On consideration we conclude that the record does not
establish that Kassa's conclusion, that these responsibilities
are inherent in Complainants' positions by contract provision and
as a reasonable related assignment, respectively, is
unreasonable. Even were we not of the opinion that Kassa's
resolution of the issue was not irrational we would decline to
address it on the statute of limitations grounds outlined above.
Based on the foregoing analysis of each of the issues raised
in the December 7, 1993, grievance, we conclude that the WEA's
determination of no merit was not unreasonable or irrational.
The record does not reveal a bad faith or discriminatory motive
or result.
Miscellaneous Matters
The Complainants allege that they were never provided with a
copy of the collective bargaining agreement applicable to them
despite having requested one. Section 104 of the Labor
Management Reporting and Disclosure Act (Landrum Griffin), 29 USC
414 (1985), specifies that private sector labor organizations
must provide a copy of a collective bargaining agreement to
affected private sector bargaining unit employees upon request.
The MPELRL contains no similar provision. Moreover, because the
Complainants have failed to specify both when and to whom the
alleged request was made, we are not required to reach the
question of whether failure to satisfy such a request for a copy
of the agreement would constitute a violation of the duty of fair
-29-
representation under the MPELRL.
While the record establishes that Perry was upset that
Complainants had contacted the Board, there is no indication of
the precise nature of the statements made by Perry during the
conversation. Without such evidence, we are unable to adequately
determine whether unlawful interference, restraint or coercion
may reasonably be said to have been a foreseeable result thereof.
The issues raised by the Complainants respecting the manner
and quality of representation rendered by the WEA appear more
appropriately addressed through the Board's representation
procedures. The Complainants, on the other hand, would benefit
from becoming familiar with the contract which establishes their
employment conditions, the grievance procedures and their
grievance processing responsibilities. Provision of contracts to
all bargaining unit members might result in the avoidance of
future misunderstandings similar to the ones which gave rise to
this complaint. Finally, although the contract states that
grievance proceedings will be kept as informal and confidential
as may be appropriate, it cannot be reasonably expected that such
matters be concealed from other unit members who have a need and
right to be informed of the efforts that the bargaining agent has
made on behalf of any unit member. Board procedures are public
proceedings open to attendance by anyone.
ORDER
On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the powers granted to
-30-
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
968(5) (1988 & Supp. 1993), it is hereby ORDERED that the
Complainants' June 7, 1993, complaint be, and hereby is,
DISMISSED.
Dated at Augusta, Maine, this 24th day of March, 1994.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to
26 M.R.S.A. 968(5)(F) (Supp.
1993) to seek review of this
decision and order by the /s/___________________________
Superior Court by filing a Pamela D. Chute
complaint in accordance with Alternate Chair
Rule 80C of the Maine Rules of
Civil Procedure, within 15
days of the date of this
decision. /s/___________________________
Howard Reiche, Jr.
Employer Representative
/s/___________________________
George W. Lambertson
Employee Representative
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