STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 94-41
Issued: July 3, 1995
____________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
DEPARTMENT OF MARINE RESOURCES, )
the STATE OF MAINE and the STATE )
BUREAU OF EMPLOYEE RELATIONS, )
)
Respondents. )
____________________________________)
This action was commenced, on April 15, 1994, by the filing
of a prohibited practice complaint with the Maine Labor Relations
Board (Board) in which the Maine State Employees Association
(MSEA) alleges that the State, the Bureau of Employee Relations
(BOER) and the Department of Marine Resources (State) have
violated 26 M.R.S.A. 979-C(1)(A) (1988) by interfering with,
restraining or coercing MSEA officer and delegate, Marine Patrol
Officer Seth Higgins in the exercise of his rights protected by
the State Employees Labor Relations Act (SELRA) at 26 M.R.S.A.
979-B (1988). More specifically, the MSEA alleges that on
October 19, 1993, Higgins was called to a meeting by his
immediate supervisor, Sergeant Daniel Morris, in the office of
Colonel Perley Sprague, Chief of the Bureau of Marine Patrol
(Bureau). The complaint further alleges that Higgins requested,
but was denied, union representation by Sprague who said "I'll
determine when you need union representation. I'm sick and tired
of your union bullshit." The complaint alleges that during the
"meeting Higgins received a counselling report in response to his
request for overtime and call-out compensation for four work-
related phone calls [which] he had received at home." According
to the complaint, when Higgins attempted to "discuss the issues"
Sprague told Higgins he could "piss off the pope" and turned to
Morris and said "this guy is a fucking asshole." Finally, the
complaint alleges that Sprague told Higgins "[y]ou know that this
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union stuff isn't helping you at all. There are going to be some
promotions coming up and you're not helping yourself at all."
The complaint requests that the Board order "the Respondent" to
cease and desist from further violation and to remove the
counselling report from Higgins' personnel file."
The State's May 6, 1994, response states that Sprague
"explained to Officer Higgins that the meeting was not
disciplinary in nature and that union representation is necessary
only when an employee is facing disciplinary action." The
response states that Sprague responded "[t]hat's bullshit" to
"Higgins' comment that he could have union representation
whenever he wanted." The response denies any discussion of
promotions, "union stuff" or Higgins' "union activity," but
states that "Sprague informed Officer Higgins something to the
effect that his negative, antagonistic attitude was not helping
his career."
A prehearing conference was held on June 9, 1994, by
Alternate Neutral Chair Kathy M. Hooke. Chair Hooke's Prehearing
Conference Memorandum and Order, containing the following
stipulations, is hereby incorporated in and made a part of this
decision and order.
1. Maine State Employees Association ("MSEA") is
a labor organization with offices in Augusta, Maine,
and is the certified bargaining agent for employees in
the Law Enforcement Services bargaining unit.
2. The State of Maine is the statutory employer
under 26 M.R.S.A. Section 979-A(5) and is represented
for collective bargaining purposes by the Governor or
by his designee, the Bureau of Employee Relations.
3. Seth Higgins is a Marine Patrol Officer in
the Bureau of Marine Patrol, Department of Marine
Resources, and is a union officer and delegate.
4. On or about October 19, 1993, Seth Higgins was
called into a meeting with his immediate supervisor,
Sgt. Daniel Morris, and the then Chief of Marine
Patrol, Col. Perley Sprague. Daniel Morris currently
holds the rank of lieutenant.
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5. Officer Higgins requested, but was denied,
union representation at the October 19, 1993, meeting.
6. During the October 19, 1993, meeting, Officer
Higgins received a counselling report.
7. Col. Sprague has since retired and is
therefore no longer an employee of the Bureau of Marine
Patrol.
An evidentiary hearing was conducted in this matter on
August 4, 1994, by Alternate Chair Pamela D. Chute, Employer
Representative Howard Reiche, Jr., and Employee Representative
George W. Lambertson, and on January 18, 1995, by Chair Chute,
Employer Member Reiche and Alternate Employee Representative
Wayne W. Whitney substituting for Employee Member Lambertson.
All parties were afforded the opportunity to present evidence and
argument. The MSEA is represented in this matter by MSEA Chief
Counsel John R. Lemieux; the State, by BOER Chief Counsel and
Director of Representation Julie M. Armstrong.
JURISDICTION
The BOER and the Bureau are representatives of the State and
the Department of Marine Resources within the meaning of 26
M.R.S.A. 979-A(5) (1988). The MSEA is the collective
bargaining representative of a unit of Law Enforcement Services
employees of the State within the meaning of 26 M.R.S.A. 979-
A(6) (1988 & Supp. 1994). The complaint alleges a violation of
26 M.R.S.A. 979-C(1)(A) (1988) based on events which transpired
within six months of the filing of the complaint. Accordingly,
the Board has jurisdiction to hear the complaint pursuant to 26
M.R.S.A. 979-H (1988 & Supp. 1994).
POSITIONS OF THE PARTIES
The MSEA contends that Higgins' exercise of SELRA-guaranteed
rights were denied in violation of 26 M.R.S.A. 979-C(1)(A)
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(1988) when the Bureau's agents: gave Higgins a counselling
memo for exercising his right under the collective bargaining
agreement to put in for the time he worked; called Higgins into a
meeting and gave him what effectively was a reprimand for putting
in for time; denied Higgins union representation, on request,
while insisting that he stay to answer questions and listen to
statements linking his allegedly unsatisfactory attitude and his
union activity with his promotional opportunities within the
Bureau; and, in that meeting used profane and abusive language
attempting to provoke Higgins into doing something which might
jeopardize his employment with the Bureau.
The State contends that the meeting at which Higgins was
given the counselling memo was neither investigatory nor
disciplinary in nature and therefore Higgins had no right to
union representation. The State contends that counselling is an
entirely permissible method of managerial performance
modification not included in the contract's definition of
discipline, that Higgins was informed at the meeting's outset
that it was for the purpose of counseling, and, that no
discipline would result therefrom. The State denies that there
was any mention of Higgins' union membership or activity and that
it was Higgins' provocative attitude and statements which
provoked the use of profanity on the part of management.
Finally, the State asserts that it was justifiably attempting to
coerce Higgins, against his persistent refusal, into following
long-established procedures and that the use of the counselling
form was the result of Higgins' history of failing to submit to
or comply with supervisory corrective instruction.
FINDINGS OF FACT
Colonel Perley Sprague has worked for the Bureau for over 21
years, working his way up from officer in 1972 to Chief. Sprague
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1 The MSEA contends that counselling is a form of discipline
although it is not mentioned in the parties' agreement's discipline
article.
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curtailed his MSEA membership on becoming Chief, a confidential
position which he held for the four years preceding his
retirement. Sprague was at one point an active member of the
MSEA law enforcement unit.
Lieutenant Daniel Morris became a lieutenant in January of
1994. Morris was promoted into the lieutenant position vacated
by Col. Fessenden when Fessenden was promoted to Chief after Col.
Sprague retired in late 1993. Higgins was an applicant in the
process by which Morris was promoted to Marine Patrol Sergeant.
He was also an applicant for another previously-unfilled position
opened up by Fessenden. Morris is presently a member of MSEA and
has been since his initial employment. He was at one point a
Marine Patrol chapter officer and was, as a sergeant, a
bargaining team member in the "'87 or '88" negotiations. Then-
Sergeant Morris became Higgins' supervisor in 1993. Higgins
assumed a position in his present patrol area in the late 1980's.
Morris had contract interpretation discussions with Higgins as
early as the mid-1980's when Higgins worked "in the head office
as administrative assistant to the chief."
Seth Higgins has been a Marine Patrol Officer for over
eleven years, all but two of which years have been as a field
officer. Higgins worked as an administrative assistant to Bureau
Chief Fessenden from 1988 through 1990. Higgins worked in this
capacity under Sprague for only a couple of months. In this
former capacity Higgins ordered uniforms and equipment for men in
the field and set up both departmental training programs and the
supervisory day-off schedule. Higgins also filled-in in the
chief's absence answering public-inquiry calls. Lieutenant
Richard LaHaye now performs those duties. Higgins works a six-
day on, two-day off rotation on a 28-day pay cycle. Higgins
submits a 28-day cycle sheet for payment and also submits a
weekly activity report which indicates what activities he has
performed.
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Higgins joined the MSEA immediately upon hire and two years
later began serving in various Marine Patrol chapter offices
within the MSEA, including secretary, vice president and
president. Higgins is currently Bureau chapter vice president.
For two years Higgins has been on the MSEA board of directors
representing area three. Higgins was on the MSEA bargaining team
and was team leader during the last Law Enforcement contract
negotiations which began in November or December of 1991.
Higgins is also the MSEA representative for the Law Enforcement
Services contract on the State Employee Health Commission.
Higgins has not served as a shop steward in the Marine Patrol.
During negotiations, Higgins experienced difficulty
obtaining administrative leave to attend bargaining from Sergeant
Mauldin, Sergeant Morris, Lieutenant Fessenden and Colonel
Sprague. Higgins has had similar difficulty obtaining release
time for State Employee Health Commission meetings. Higgins has
been involved in grievances over the past two or three years
concerning issues of compensation for court time, overtime,
compensation for work performed on days off, work performed
outside core hours (call-outs). The method which Higgins used to
bring these grievances was to submit his pay records and when his
request was denied, to notify his supervisor that he was filing a
grievance. Higgins used this method with Sergeants Mauldin,
Morris and Dolliver.
On one occasion in 1992 or 1993 when Higgins and a fellow
officer requested court time on an approved day off, Morris
"brought [them] both . . . into his vehicle and told [them] that
he felt [they] had violated some policy that didn't exist . . .
and said that [they] both . . . could face disciplinary action
for even requesting payment of such court time." Higgins and
Morris seldom saw each other although they had informally
discussed the meaning of unspecified contract provisions prior to
their controversy over call-in pay. Higgins has made it clear to
Morris that he thinks "that the contract [is] very explicit that
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any work performed on a day off, particularly with respect to
phone calls made by fishermen [and other agency clients] . . .
should be compensated for . . . because of the department's--
their action of publishing [patrol officers'] telephone numbers
in the backs of all the Marine Patrol lawbooks that they had out,
on business cards that they issue" and because they tell patrol
officers "all the time" that they should be handing out their
business cards. Morris does not agree with Higgins' interpreta-
tion of the rate of compensation. Higgins' time sheets, which
sparked the present controversy, were meant to request compensa-
tion under his contract interpretation for telephone calls
outside of core hours. Higgins' time sheets also requested
compensatory time for a phone call occurring during a regular day
off. Never before had counselling resulted from putting in for
time.
Higgins has occasionally disagreed with the Bureau's
management on contract issues. He has only once previously
received a counselling memo. That memo was withdrawn through
mediation. Previous denials of requests for compensatory or
other time have been oral. Prior to October 19 Higgins had never
been counselled for putting in for time. There is no indication
of the percentage of cases in which counsellings issue for first
occurrences of misperformance. In the Bureau the total number of
counselling forms per year averages from 6 to 10. It is not
customary for the Chief to sit in on counsellings although
Sprague has sat in on several over his four year tenure as Chief.
None of those counsellings led to disciplinary action.
The State construes discipline to occur only in cases where
counselled employees do not accept the instructions or directives
of management and do not change their performance which was the
subject of the counselling. The parties' contract establishes
that employee discipline begins with an oral warning.
Counsellings do not in themselves form the basis for grant or
denial of merit increases. Counsellings go into employees'
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incident files for one year, and are used routinely in the
drawing up of an employee's next personal performance evaluation.
Performance evaluations are used to determine an employee's
eligibility for merit increases and fitness for promotion.
Counselling memos are not placed in the formal and centrally-
maintained personnel files.
The record reviewed in cases of progressive discipline may
include records of policy directives alleged to have been
violated, counsellings and non-counselling memos written by the
supervisor instructing or regarding the subject employee's
performance.
MSEA field representative Pamela A. Morin represented
Higgins during the grievance procedure relating to this
counselling incident. During the grievance procedure Morris
referred to Higgins as having been provocative during the October
19 meeting. Morin has handled grievances for Higgins over a two-
year period concerning the interpretation of contract language
respecting changes in work schedule and compensation. Morin is
presently grieving "a couple" of unspecified counsellings for
unidentified persons.
In October of 1993 Higgins was on the MSEA negotiating team
in law enforcement unit bargaining. Morris was aware of Higgins'
negotiating team membership. Negotiations for law enforcement
employees extended beyond the negotiations for other executive
branch units. During negotiations, the Bureau of Employee
Relations imposed temporary layoffs on law enforcement unit
employees on days convenient to the State. Charges and
countercharges were filed with the Board. Tensions were high and
morale was low. Higgins' supervisors laid the blame on higher
level supervision.
_______________
2 Morris has "never known anyone not to get a merit increase."
A denial of merit increase on the basis of a counselling would be
considered by the MSEA to have a disciplinary impact. The MSEA
believes a separate board would conduct any requested hearing on
such a merit pay denial.
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The MSEA's focus in negotiations was on "getting rid of the
24-hour on-call" and "having . . . a 12-hour core period and then
not be[ing] on-call for the rest of the day, very similar to what
[the] State Police . . . [have] had in effect for about ten
years." An additional issue for MSEA Marine Patrol officers was
the perception of the availability of funding and use of funds in
an overtime account during the period of layoffs, furloughs and
shutdowns. The MSEA brought prohibited practice charges against
all of the agencies in the State which imposed law enforcement
employee layoffs. Higgins and other unspecified Marine Patrol
officers filed a grievance over the temporary layoffs. Sprague
denied this grievance on September 28, 1993. There were also
charges filed by the State against the MSEA. These charges were
all requested to be withdrawn by joint motion on May 20, 1994.
There was a fair amount of tension in the air at that time
between Marine Patrol law enforcement officers and the Bureau,
although tension always accompanies the parties' negotiations.
On one prior occasion, Higgins received a call and responded
by leaving a bowling alley, only to be called off shortly
thereafter. Higgins was unspecifiedly paid for this response.
In September 1993 Higgins got three calls in one month. Higgins
did not begin to leave his home as a result of any of the
September telephone calls. One of the calls was from Sergeant
Morris, to inform Higgins that the time for a total quality
management meeting had been changed. Higgins requested six hours
of compensatory time for that call. On one occasion of uncertain
date, Morris relayed to Higgins a call in which the caller
requested that Higgins return the call after 6:00 p.m. Higgins
was paid time and one half for the call, over Morris' strenuous
objection.
Higgins' 28-day cycle report, submitted for the period
9/26/93 to 10/23/93, reflected for each of September 26 and
October 3 one hour of overtime requested for non-scheduled work.
The former was attributed to a call received outside core hours
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regarding a boat accident in South Portland, the latter for a
telephone call received outside core hours regarding complaint
No. SHH-93-022. The call on the logs for the 26th is the same
call mentioned in the counselling form as on the 25th. Higgins'
weekly reports for the weeks ending 9/4/93, 9/11/93, and 10/2/93
covered days which would later be mentioned in the counselling
memo. Higgins submitted two phone call logs, one for the period
8/29/93 to 9/25/93 and one for the period 9/26/93 to 10/23/93,
which list the times spent on all of the subject calls as
"unknown."
The parties' contract specifies that work on a day off
entitles one to a minimum of four hours of compensation and that
work outside of core hours or work called out by a supervisor
outside of core hours entitles one to an hour of compensation.
Higgins had never put in for time based on these circumstances
before, and Morris had not experienced such a request in his
seven years as a sergeant.
While a sergeant, Morris reviewed officers' 28-day cycle and
weekly reports. One such review revealed the above-mentioned
phone call/overtime/call-out requests. Morris immediately
scheduled a meeting with Higgins on October 5 "to ask exactly
what these reports meant . . . to get an explanation from Seth as
to why the numbers on the report appeared the way they did."
Morris asked Higgins about the length and subject matter of the
phone calls at issue. Higgins told Morris he didn't remember how
long he had talked. Morris asked Higgins if he was aware of the
departmental policy concerning how telephone calls should be
recorded. Higgins asked to see the policy. Morris responded
that it was well established since 1986 when the FLSA came into
effect. Higgins first saw the July 20, 1986 work rule at a Step
3 hearing of the BOER, several months after the October
counselling session. Higgins explained to Morris the rationale
underlying his claim. Higgins felt these phone calls received
outside of core or on his day off warranted call-out under the
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contract which would be "time and a half outside of core pay and
a four hour minimum work for a potential of six hours CTO for the
calls he received on his day off." Morris told Higgins that he
should discuss such issues with his supervisors ahead of time.
Higgins stated that he knew about the policy but that "with the
layoff days and all the cutbacks in state government[,] times had
changed." Higgins also told Morris that at some date after his
initial probation he had been told not to use the telephone logs.
Morris agreed that the calls were "time worked" and compensable,
but prior to Higgins putting in for an hour of overtime on
September 5, Morris had never seen a Marine Patrol officer list
as call out, telephone calls received outside of core hours.
Higgins had not, prior to September of 1993, put in for either
"an hour guaranteed minimum of overtime for a call outside of
[the] normal work day or a six-hour minimum for a call on a
scheduled day off."
Their difference of opinion concerned the manner of
compensation for the "time worked" attributable to the phone
calls. In Morris' opinion the procedure since 1986 was that the
department would arrange to give the employee time off for the
actual phone call time prior to the end of his 28-day cycle to
avoid the payment of overtime for phone calls. Morris explained
to Higgins at this meeting that the department's policy was that
"all telephone calls had to be broken down to the nearest tenth
of an hour." When Morris met with Higgins in Brunswick he told
Higgins that there are many past practices of the department that
are not spelled out in written policies.
Morris remembered the policy of recording phone calls in
tenths of an hour originating from an agreement between MSEA and
the Bureau in response to issues surrounding the applicability of
the Fair Labor Standards Act (FLSA). The nearest written policy
to that remembered by Morris is the requirement that "the time
spent to complete the call" be recorded "on the form." There is
no mention of calibration in tenths. This policy was not shown
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to Higgins during the October 5, October 13 or October 19
meetings. Morris first located it in his files in March of 1994.
Higgins was supplied with it at a step 3 grievance hearing.
Morris received the following work rule as an officer in 1986
just prior to his promotion to sergeant:
DEPARTMENT OF MARINE RESOURCES
BUREAU OF MARINE PATROL
WORK RULE - Work on Day Off
This Rule applies to Marine Patrol Officers/Specialists and
is issued in reference to the Memorandum of Agreement between the
State of Maine and the Maine State Employees Association effective
April 13, 1986.
No Marine Patrol Officer/Specialist shall work on their day
off without prior approval of the Marine Patrol Sergeant or Marine
Patrol Lieutenant.
Whenever possible, Marine Patrol Officers/Specialists shall
refer telephone inquiries/complaints received on their days off to
the Alternate Officer covering or the Regional Communications
Center for processing.
When telephone calls/complaints are, by necessity, processed
on a day off, the Telephone Call Record form must show the name of
the caller, the time spent to complete the call, and the subject
discussed. The time spent will also be reported on the 28-Day
Cycle form.
Marine Patrol Officers/Specialists shall refrain from
initiating work related calls on their days off.
Failure to comply with this Work Rule may result in
disciplinary action.
EFFECTIVE JULY 20, 1986.
The work rule is not included in the Bureau of Marine Patrol
policies, procedures or its code of operation. The concept of
"core hours" was not in existence in 1986.
Sprague's position on officer compensation for receipt of a
phone call after core or on a scheduled day off is that the time
should "be recorded as time worked" but that "four hours would
not be allowed for a simple telephone call if it did not require
some response on their part."
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Morris' position was also that the call-out provisions of
the contract and an unspecified special agreement apply only when
officers are called out of their residences or are called away
from individual pursuits. Higgins' contract interpretation was
that whether he's at home or not and he answers a call, either by
answering the phone or by walking out the door he should be
compensated for that time. In Higgins' mind going to the
telephone was a compensable response.
As a result of the October 5 meeting it was agreed that the
issue would be taken to the labor-management committee which had
been scheduled to meet on September 13. Morris had advocated to
management that that committee's meeting was an appropriate forum
for an "issue" Morris had with Higgins respecting adequate
compensation for phone calls received on his day off. Morris was
involved in the labor-management committee meeting within the
Bureau. At the meeting both sides stated their positions and
agreed to disagree. Morris wrote in his work notebook "regarding
overtime for phone calls" for the date 10/13 that "it will be
denied." The entry was made in memorialization of the labor-
management committee meeting.
Morris considers a counselling memo to be a "record of
employee performance that [the supervisor] wants changed . . . a
notification process to the employee . . . [which is] fairly
routine." Morris felt counselling was required because Higgins
was acting in contravention of an established work rule of which
he was admittedly aware. Morris has told Higgins that he prefers
Higgins to bring problems and issues to him prior to filing
grievances, so that he has a chance to resolve them within the
department first. Morris perceives that Higgins has consistently
been unwilling to do that. Morris also anticipated Higgins would
further contest the matter. Morris felt that a written record
would prevent any misperception or miscommunication of the
policy. Morris has issued ten or twelve counselling statements
in seven years.
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The counselling memo which Morris drafted, as it appeared
after receiving the signature and a notation by Higgins, is as
follows:
Incident File Only
RECORD OF EMPLOYEE PERFORMANCE
(Commendation/Counselling)
Employee's Name: Seth H. Higgins, III Date: 10-18-93
Classification: Marine Patrol Officer Work Location: Brunswick/Harpswell
Department: Marine Resources
TASK WHICH EMPLOYEE HAS DONE WELL __ or POORLY xx
(Check appropriate category and give details.)
This serves as notification of denial of overtime requested by you for
telephone calls only that you recieved (sic) on 9-2-93, 9-5-93, and on 9-25-
93. Since the implementation of FLSA, the department has compensated MPO's
for time worked from telephone calls recieved (sic) while off-duty. As you
know, an officer may submit a telephone call log documenting the calls and the
length of each, to the minute. An officer shall then take an equivalent
amount of time off prior to the end of each 28-day cycle, with the approval of
a supervisor. This time is to be calculated as a decimal of an hour,
( example is that 6 mins.= .10 of an hour ), and will be included on the
weekly report and the 28-day cycle. You are directed to correct your reports
regarding the above calls so as to reflect the explained procedure. Carry
over time gained on cycle ending 9-25 to the next cycle. All calls after 9-25
shall be calculated as explained. The shortening of a work day to make-up
logged phone time must be done with supervisory approval.
In the future, when you have a question about work practices, or if you
know a decision you have made is contrary to established procedures, contact
your supervisor so an effort can be made to solve the issue at hand. As you
know, requests for overtime must be made on a pre-approved basis or, in cases
of emergency call-out, within 12 hours.
Rater's Signature: /s/ Daniel B. Morris SGT.
Reviewer's Signature: /s/ Joseph E. Fessenden
Telephone logs supplied and turned in when requesting make-up time off.
Report corrections due with reports week ending 10-23-93.
EMPLOYEE:
Your signature means you have seen and read the above report, and that you
have been commended/counselled (strike one) by your immediate supervisor
(rater). This job performance record shall not be put in your personnel file;
it shall only go into your incident file. This record does not constitute any
form of reprimand or discipline.
[Ordered to sign after being denied Union
representation by Col. Sprague]
Employee's Signature: /s/ Seth Higgins III
Date: 10/19/93
cc: Employee
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Higgins works out of his home in Brunswick but his division
office is in South Portland. Morris lives in Harpswell. When
Higgins is on-call away from home he signs off through the
barracks. Higgins has purchased a pager which enables him to be
paged by the barracks. Higgins is on-call 24 hours per day
unless he is given "10-7" time or time by his supervisor not to
be on-call. Higgins works a core of twelve hours, 6 a.m. to 6
p.m., and is on-call for the other twelve hours.
On his day off and after core hours at night Higgins is not
required to stay at home to take calls and he is not required to
answer his phone. The State pays a portion of patrol officers'
basic monthly phone charges and officers may not have unlisted
numbers. Higgins has an answering machine by which he can screen
calls. Higgins thinks "trouble" would result from failing to
return calls taken on an answering machines from either a
superior officer or a member of the public. Higgins didn't
previously get many calls and, during imposed layoffs, "made it
very clear to the supervisors that [he] did not want to be called
outside core without being compensated for the terms and
conditions of the contract." Prior to 1990 patrol officers
received numerous calls at home but with the extension of FLSA
coverage and the implementation of contract provisions to cover
same, they declined dramatically.
In 1992 Officer Sonksen took a grievance to arbitration
involving the effect of failing to give 14 days' advance notice
of change in core hours. The result of the award in that
arbitration case is that for work performed outside core hours
call-out pay is due. Since rendition of the Sonksen award, and
during Morris' supervision, Higgins has filed a number of
grievances relating to overtime compensation. The general
procedure in those cases was that the individual officer filed a
grievance upon management's denial of a request. Sprague has
read and is aware of the Sonksen award.
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On October 19, 1993, Higgins was in Hallowell working on a
lawbook index. Morris told Higgins he wanted to talk with him.
When Higgins finished working on the index he walked into
Sprague's office to speak with Morris. Morris had never
previously used the Chief's office for counselling. The district
office was his usual choice of location. Morris does not have an
office in Hallowell. Bureau office space is fairly limited.
Morris asked Sprague to attend the counselling session as a
witness, due to his perception that Higgins had not always
correctly recollected the content of their previous meetings.
Sprague was aware that Higgins was active in the union and that
he held positions within MSEA; but he did not know what specific
positions Higgins held.
The door was closed after Higgins entered and, in the
presence of Morris and Sprague, Higgins was handed the
counselling form. Higgins "immediately felt that [he] was in
some type of disciplinary situation." To Higgins a counselling
form has always indicated "some type of a disciplinary thing,
that [he has] done something wrong that [he's] being corrected
on." Higgins was aware of other officers receiving counselling
forms for "any number of things" such as "not filling out
paperwork correctly to not answering a complaint in a timely
manner." Higgins is aware of unspecified instances where
officers have received counsellings and have later received
another form of discipline.
Higgins requested the presence of a union representative.
Sprague told Higgins that he would determine when Higgins would
have union representation. Morris explained that the meeting was
not a disciplinary hearing, that it was simply a counselling
session and that no discipline would ensue as a result of the
meeting. Higgins unspecifiedly suspected that there was anti-
union animus directed at him unrelated to the counselling matter.
Morris began by describing the paperwork, stating that he felt it
was necessary at that point to issue Higgins a counselling memo
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for failing to abide by the procedures. Morris gave Higgins a
package of reports and ordered him to correct them to reflect the
longstanding policy. Higgins insisted on representation and
Sprague told Higgins that he had been informed of the non-
disciplinary nature of the meeting and that he did not need
representation. Higgins renewed his request, telling Sprague he
felt the meeting was disciplinary in nature. Higgins stated that
he could have union representation whenever he wanted, to which
Sprague replied "that's bullshit."
Morris handed Higgins a copy of the counselling, and then
read to him its entire contents. During this meeting which
lasted about twenty minutes Higgins asked several times for a
copy of the policy which purportedly required calls to be
recorded in tenths of an hour. Each time Morris told him there
was no written policy available.
After Morris read the counselling form to Higgins, he asked
him to sign it. Morris indicated on the time logs where the
times needed to be changed to accurately record the length of the
calls. He had Higgins' 28-day cycle reports on the table while
he discussed them with Higgins. Higgins asked Morris "to clarify
to make it very clear, to make sure that [Higgins] had it very
clear, that [Morris] was asking him to alter or falsify [his]
report records." At that point Sprague told Morris that Higgins
could "piss off the Pope." Sprague then turned to Morris and
said "this guy's a fucking asshole." Higgins was shocked, then
angry and felt that if he "didn't get out of there . . . [he] was
going to say something." Higgins asked Sprague "do you want me
to respond to that" to which Sprague replied "sure, go ahead.
Just remember where you are." Higgins got up to leave because he
felt that any response would have resulted in his being "fired
immediately or further disciplined." Higgins felt that Sprague
was attempting to get him to say something which might be grounds
for discipline. Higgins stood up and Sprague told him to sit
back down and that he was not to leave until given permission to
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do so. Sprague perceived the tone of Higgins' voice when he
spoke to Morris to be provocative or challenging. Sprague was
aware of conversations with supervisors complaining about Higgins
challenging and disagreeing with them when they were issuing
instructions concerning the performance of his job. Sprague and
Morris perceived that Higgins' tone of voice indicated lack of
respect and disinterest in hearing Morris' performance
expectations.
Sprague had considered the meeting to be informational for
the purpose of telling Higgins where he had erred, and felt
Higgins had no business disagreeing with what Sergeant Morris was
explaining. After Sprague's statements, Morris told Higgins he
wanted him to "correct" his reports. The conversation about the
form lasted about five minutes. Higgins had some questions about
the form. Morris explained what he thought Higgins needed to do
in order to receive compensation for the phone calls in question.
Morris asked Higgins if he understood what he was telling him and
directed Higgins to put the exact amount of time which he had
devoted to each of the telephone calls on his records, in tenths
of a hour. Morris supplied Higgins with blank telephone call
logs that he could fill out to satisfy this requirement.
Higgins was told that his time sheets should be accompanied
by a telephone log documenting the calls. Morris informed
Higgins not to "document his interpretation in reports." In
Morris' view if Higgins further disobeyed the department
procedure for the sake of his own interpretation "he [ran] the
risk of discipline."
Higgins refused to sign the form because he had been denied
representation on request. There was some discussion as to
whether Higgins was going to sign the counselling form. At first
he refused. Sprague informed him he had no option to refrain
from signing but that he could annotate that the signature was
given under protest. Sprague then told Higgins he needed to get
along with his supervisors and that he had a real problem in that
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regard. Sprague continued, stating that although Higgins had
professed a desire to advance in the agency he was "going about
it the wrong way." Higgins responded "you're telling me I should
not file grievances," to which Sprague answered "of course not
. . . there is a system in place. When you have legitimate
disagreements concerning the contract, a system is in place to
deal with that; let that system work." Sprague told Higgins, in
essence, that he needn't be best friends with his supervisors but
that he needed to meet them half way.
Higgins remained seated while Sprague said, among other
things: I think you're a good officer but you're going to have
to watch yourself; you're not helping yourself here, your
antagonistic attitute is not helping you; and, there are going to
be promotions coming up and your attitude is not going to help
you. Higgins assumed Sprague was talking about sergeant openings
that were coming up. Higgins was aware that Sprague was on the
"80% . . . special retirement deal" and would soon be leaving
state service altogether. Sprague said nothing to Higgins with
regard to Higgins' protected union activities beyond denying,
when asked by Higgins, that he was telling Higgins that he
shouldn't file grievances. Higgins was visibly agitated and
upset. Sprague announced "there is no point in continuing the
meeting, we've concluded our business, the meeting is over."
Morris was not aware at the beginning of the October 19
meeting exactly when Sprague intended to retire. Morris knew
Sprague was on the 80 percent retirement option program but first
learned exactly when Sprague would retire in early November.
There were no sergeant vacancies at the time of Sprague's
comments. After the form was signed, however, Sprague told
Higgins he was going to retire within a few days and that "it
really didn't matter" to him "any longer concerning promotions."
Under the date of October 19th Morris' notebook states, "1835
[Higgins' call number] regarding counselling - denial of overtime
on phone calls . . . terrible attitude - wanted MSEA rep . . .
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had to be ordered to sign . . . advised to correct reports . . .
document future calls."
At the time of the October 19, 1993 counselling session, the
contract negotiations, Higgins' temporary layoff grievance and
Higgins' overtime allocation grievance were all pending. As of
October 19, 1993, the Law Enforcement Unit to which Marine Patrol
Officers belong was the only executive branch unit that didn't
have a settled contract. The law enforcement unit was holding
out for better terms than they had been offered.
Although no one raised his voice during the meeting, Higgins
felt intimidated when he was told not to leave. The incident
hasn't had an impact on Higgins' coworkers although they reacted
similar to Higgins upon being told of the incident by Higgins,
and have become "quite nervous" in discussions about the exercise
of contract rights. One of Higgins' coworkers commented to
Higgins that Sprague's statements were "his lasting parting shot
. . . he didn't have the gumption to stand up to you like a man
when he was here and now he left." Higgins related Sprague's
statements to coworkers and to the union's vice president and
shop steward.
Morris subsequently spoke to Higgins at the South Portland
office, about the purpose and length of the calls. Morris
eventually denied Higgins' request after several unsuccessful
attempts to obtain from Higgins the actual time involved in the
calls. Higgins fears he cannot put in for time now without being
subject to discipline in light of the counselling.
Other patrol officers have filed grievances, some of which
have gone to arbitration. At least two of the patrol officers,
Mauldin and Williams, who have filed grievances have been
promoted to sergeant. Morris had an unspecified role in the
Williams promotion process, and has worked with Mauldin both as a
fellow sergeant and as his supervisor for several years.
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DISCUSSION
As is more fully explained below, we conclude that the
Bureau has violated 26 M.R.S.A. 979-C(1)(A) (1988)fn3 by
interfering with, restraining or coercing Seth Higgins in the
exercise of rights guaranteed in 26 M.R.S.A. 979-B (1988).fn4
We do not find a violation of Higgins' Weingarten rights, or
that Higgins' protected activities were mentioned during the
counselling session. We also find that issuance of the
counselling memo itself does not constitute a violation of the
SELRA.
The standard by which MSEA's allegation of violation of 26
M.R.S.A. 979-C(1)(A) (1988) must be adjudicated is whether the
Bureau has engaged in conduct which reasonably tends to interfere
with the free exercise of employee rights under the SELRA. MSEA
v. State, 499 A.2d 165, 169 (Me. 1985); MSEA v. State, No. 92-19,
slip op. at 41 (Me.L.R.B. Jan. 6, 1994). Employing this standard
we conclude, in light of Higgins' union offices, contract
grievance/negotiation team activities and the strained nature of
the relationship of the State and its organized law enforcement
personnel at the time of the counselling session, that Colonel
Sprague's profane insults[fn5] coupled with his comments about
_______________
3 Section 979-C(1)(A) provides that, "[t]he public employer,
its representatives and agents are prohibited from interfering
with, restraining or coercing employees in the exercise of the
rights guaranteed in section 979-B."
4 Section 979-B states that:
No one shall directly or indirectly interfere with,
intimidate, restrain, coerce or discriminate against
state employees or a group of state employees in the free
exercise of their rights, hereby given, voluntarily to
join, form and participate in the activities of organiza-
tions of their own choosing for the purposes of represen-
tation and collective bargaining, or in the free exercise
of anya other right under this chapter.
5 Although we credit the testimony of Morris and Sprague that
Higgins' question, whether he was being asked to falsify his work
records, was provocative, we consider Sprague's level of response
suspiciously disproportional, especially from a high level law
enforcement official assumedly trained to handle much more
stressful circumstances.
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Higgins' future promotional opportunities, made as they were in
the Chief's presence and in the locus of the Bureau's authority,fn6
had a reasonable tendency to interfere with, restrain or coerce
Higgins' union activity.fn7
We do not find the counselling or the written memorializa-
tion of it to be violative. The MSEA has not demonstrated that
the use of employee performance counselling or counselling memos
violate the SELRA.fn8 The contract does not refer to employee
performance counselling specifically, although such measures are
arguably included within the "right to direct its workforce"
reserved to the State in the contract's Management Rights
article. Counselling does not fall within the contract's
definition of discipline and is a corrective tool used by the
Bureau with some frequency.
Neither do we find that Higgins' Weingarten rights were
violated. We have previously held that Weingarten rights, see
NLRB v. Weingarten, Inc., 420 US 251 (1975), inhere only in
"circumstances where the employee reasonably believes that the
investigation will result in the imposition of discipline"
(emphasis added) and that they do "not apply to ordinary work
site conversations concerning giving instructions or training or
correcting work techniques." Monmouth School Bus Drivers and
Custodians v. Monmouth School Committee, No. 91-09, slip op. at
44 (Me.L.R.B. Feb. 27, 1992). Higgins could not have believed
that the session constituted an investigation. The facts of the
_______________
6 Higgins may at some previous point have felt at ease in
and about the Chief's office; however, Sprague was responsible
for Higgins' reassignment to field work two months into Sprague's
tenure, approximately four years ago. The evidence establishes
that although counsellings had been conducted in the past it was
not customary for the Chief to sit in and there is no evidence
that any counselling had ever occurred in the Chief's office.
There is also no evidence that the Chief ever sat in on a
counselling of Higgins.
7 There has been no request for deferral to arbitration in
this matter.
8 The MSEA has not established that Higgins has unlawfully
missed any promotional opportunity and the complaint does not
allege violations of 26 M.R.S.A. 979-C(1)(B) or (D) (1988).
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matter had already been fully developed both in a meeting between
Higgins and Morris and during a labor-management committee
meeting. The evidence also establishes that Higgins could not
reasonably believe that discipline would result. On the
contrary, Higgins was expressly informed that the meeting was for
counselling and that no discipline would result. Any questions
asked were aimed at obtaining payment for Higgins for time worked
under the Bureau's interpretation. If Higgins truly believed
discipline might result as a consequence of his own behavior, we
can only say that we do not find Weingarten's protection to
extend that far. We will not, therefore, order removal of the
counselling memo as requested by the MSEA.
Finally, we do not find any other employee's SELRA rights to
have been impinged. No other unit employees were present, and
Higgins was apparently responsible for any communication of the
circumstances of the incident beyond the participants themselves.
We, therefore, will not order a posting remedy in this case.
We also do not find the award of attorney's fees to or the
imposition of all costs upon any party to be warranted in these
facts.
ORDER
On the basis of the foregoing findings of fact and
discussion and by virtue of and pursuant to the powers granted to
the Maine Labor Relations Board by the provisions of 26 M.R.S.A.
979-H(3) (1988), it is hereby ORDERED that the Bureau of Marine
Patrol cease and desist from interfering with, restraining or
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coercing Seth Higgins on the basis of his union membership,
offices or activities, in violation of 26 M.R.S.A. 979-C(1)(A)
(1988).
Dated at Augusta, Maine, this 3rd day of July, 1995.
The parties are hereby advised MAINE LABOR RELATIONS BOARD
of their right, pursuant to 26
M.R.S.A. 979-H(7) (Supp.
1994), to seek review of this /s/________________________________
decision and order by the Pamela D. Chute
Superior Court. To initiate Alternate Chair
such a review, an appealing
party must file a complaint
with the Superior Court within /s/________________________________
fifteen (15) days of the date Howard Reiche, Jr.
of issuance of this decision Employer Representative
and order, and otherwise
comply with the requirements
of Rule 80C of the Maine Rules /s/________________________________
of Civil Procedure. Wayne W. Whitney
Alternate Employee
Representative
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