Decision on Respondent's Motion to Dismiss, April 22, 1998; Interim Order on Motion to Dismiss and Motion to Quash Subpoena, Sept. 14, 1998. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-11 Issued: April 22, 1998 UNITED PAPERWORKERS INTERNATIONAL UNION, Complainant, V. DECISION ON RESPONDENT'S MOTION TO DISMISS WINTHROP SCHOOL DEPARTMENT, Respondent. This is a decision to address a prehearing motion which was deliberated by the Maine Labor Relations Board on April 15, 1998.[1] The Winthrop School Department (hereinafter "the Department") filed a Motion to Dismiss the prohibited practice complaint filed against it by United Paperworkers International Union ("UPIU") on the basis that the complaint fails to state a claim upon which relief can be granted. We agree with the Department that the complaint fails to allege facts which, if proven, would constitute a violation of 26 M.R.S.A. §964(l)(A) or (B). The complaint filed by UPIU on December 3, 1997, alleges that the Department engaged in an unfavorable course of conduct against a union member, Ms. Lori Holmes, once she was identified as one of the eleven employees working on the union organizing _______________________ 1 The motion was filed prior to the prehearing conference which was conducted on April 8, 1998. The prehearing officer took out a record on the motion and referred the matter to the full Board for deliberation and decision. Prior to its deliberation, the Board reviewed the pleadings and a transcript of the proceeding before the prehearing officer. -1- committee.[2] The complaint was amended to allege that the Department "continued on its same course of conduct with Lori Holmes" when it denied Ms. Holmes reinstatement to her position as main site manager on January 20, 1998, after an extended medical leave of absence. UPIU contends that the Department's conduct violates 26 M.R.S.A. §964(l)(A) & (B). We will first address UPIU's section 964(l)(B) discrimination claim, because the section 964(l)(A) claim is derivative; that is to say, the claim that the Department interfered with, restrained and coerced Ms. Holmes in the exercise of protected rights in violation of section 964(l)(A) derives from the allegation of discriminatory treatment of Ms. Holmes in violation of 964(l)(B), not from conduct independent of the treatment of Ms. Holmes. [3] If UPIU failed to state a claim under section 964(l)(B), its §964(l)(A) claim fails as well. In order to support a section 964(l)(B) discrimination claim, UPIU must allege facts which would tend to prove that: (i) Ms. Holmes engaged in protected activity; (ii) her supervisor had knowledge of Ms. Holmes, participation in protected activity; and, (iii) there is a relationship, or "causal connection," between the protected activity and the Department's adverse employment actions against Ms. Holmes. Casey v. Mountain Valley Education Association and School Administrative District No. 43, ____________ 2 An organizing campaign begun in March, 1997, resulted in certification of the UPIU as bargaining agent for the Department's food service employees in October, 1997. 3 Accordingly, it was not necessary for UPIU to allege facts in support of its 964(l)(A) claim different from those alleged in support of its 964(l)(B) claim. Cf. Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 22 (Me.L.R.B. Jan. 29, 1992) (discriminatory discharge of complainant, a union organizer, inherently interferes with the free exercise of employee rights in violation of section 964(l)(A)); Maine State Employees Association et al. v. State Development Office, 499 A.2d 165, 169 (Me. 1985) (in view of the Board's finding of no causal connection between employee's discharge and his protected activity, it cannot be said that the employer's conduct violated the interference, restraint or coercion prohibition). -2- Case Nos. 96-26 & 97-03, slip op. at 27-28 (Me.L.R.B. Oct. 30, 1997) (citing Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 18, 14 NPER ME-23005 (Me.L.R.B. Jan. 29, 1992) ) . The Department challenges the sufficiency of UPIU's complaint in regard to the third element of its claim. [4] The Department contends there are no alleged facts in the complaint which would, if proven, demonstrate a causal nexus between Ms. Holmes' union activity and the adverse employment actions. We agree. A review of the complaint, as amended, reveals that the only fact alleged to support UPIU's belief that Ms. Holmes' organizing efforts led to unfavorable treatment is the timing of the unfavorable treatment (i.e., that it followed her protected activity). While it is necessary in every discrimination case to prove that unfavorable treatment followed protected activity, the Board has determined that timing alone is generally an insufficient basis to support a finding of discriminatory motivation. Teamsters Union Local #340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 20, 14 NPER ME-23005 (Me.L.R.B. Jan.29, 1992); Maine State Employees Association v. State Development Office, No. 84-21, slip op. at 11, 7 NPER 20-15017 (Me.L.R.B. July 6, 1984), aff'd, 499 A.2d-165 (Me. 1985) (the fact that the conduct cited in the complaint happened to coincide with the employee's protected activity does not, without more, establish a prima facie case of discrimination). A complaint must allege facts which would tend to prove the element ___________ 4 The Department does not dispute that Ms. Holmes enaaqed in protected activity, that the Department had knowledge of Ms. Holmes' protected activity, or that adverse employment actions were later taken against Ms. Holmes. The Department notes, however, that the complaint itself alleges adverse actions were taken against Ms. Holmes prior to their knowledge of union activity. While this fact may, but does not necessarily, minimize the importance of the timing of the later adverse actions, we find that UPIU has satisfied the first two elements for purposes of this motion. -3- of causation or connection between protected activity and unfavorable treatment beyond the fact that one follows the other. Rather than dismiss UPIU's complaint at this juncture for failure to state a claim, we will grant UPIU leave to amend the complaint pursuant to Rule 4.06(B). If UPIU does not amend its complaint within the time period provided in Rule 4.06 (B), we will dismiss this complaint with prejudice. A Notice of Dismissal, including the requisite notice of right of appeal to the Superior Court, will issue at that time. If UPIU files an amended complaint within the applicable time period, the procedure for review of that complaint set forth in Rule 4.06(C) will apply. Dated at Augusta, Maine this 22nd day of April, 1998. MAINE LABOR RELATIONS BOARD Peter T. Dawson Chair Karl Dornish, Jr. Employer Representative Carol B. Gilmore Alternate Employee Representative -4- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-11 Issued: September 14, 1998 ______________________________ ) UNITED PAPERWORKERS ) INTERNATIONAL UNION, ) ) Complainant, ) ) INTERIM ORDER ON MOTION TO v. ) DISMISS AND MOTION TO QUASH ) SUBPOENA WINTHROP SCHOOL DEPARTMENT, ) ) Respondent. ) ______________________________) Upon consideration of briefs submitted by the parties, we hereby DENY respondent's Motion to Dismiss. We have examined the amended complaint in the light most favorable to the complainant and, treating the allegations as true, conclude that it states a claim under 26 M.R.S.A. 964(1)(A) & (B). We turn now to respondent's Motion to Quash the subpoena duces tecum issued at the request of the complainant. The subpoena seeks production of: all documents relating to leaves of absence and return to work of eight employees (two of whom are deceased); all documents relating to the job-sharing arrangement of two employees; and, all performance rating forms for food service workers employed by the respondent since January 1, 1994. The respondent objects to production of these records without the consent of the affected employees on the basis that they are expressly made confidential by 20-A M.R.S.A. 6101.[fn]1 Respondent contends that, while the Municipal Public Employees Labor Relations Law authorizes the Board to subpoena witnesses and documents, it does not authorize the Board to subpoena ____________________ 1 The statute provides that information related to employee personnel matters "shall be kept confidential." The only statutory exception is one which allows the Commissioner of Education access to these records for carrying out certain duties. -1- documents made confidential by other statutes. We agree that the respondent cannot voluntarily provide these documents to the union without the consent of its employees. The law does not provide an exemption for access to bargaining agents in the event that access is necessary to carry out collective bargaining duties, as do the laws pertaining to the confidentiality of personnel records of state, county and municipal employees.[fn]2 On the other hand, we understand the complainant's interest in reviewing these records in preparation for the hearing in this prohibited practice complaint and the potential benefit gained by disclosure for the correct disposition of this particular proceeding.[fn]3 But see Dana Duff v. Town of Houlton, et al, No. 97-20 (Me.L.R.B. February 24, 1998) (benefit to the Board gained by disclosure of confidential personnel records to individual complainant, to whom the exemption for union access does not apply, does not outweigh the injury to employees of disclosure of these records). We will resolve these conflicting interests in the following manner. We hereby GRANT the respondent's Motion to Quash the subpoena. We direct the respondent, however, to give notice to the affected employees who have not yet authorized release of their confidential records to the complainant.[fn]4 The notice shall inform the employee of the confidentiality statute and of this pending complaint; provide the Board's telephone number and address; and, indicate that the employee has two options: ____________________ 2 See 5 M.R.S.A. 7070 (state employees); 30-A M.R.S.A. 503 (county employees); 30-A M.R.S.A. 2702 (municipal employees). 3 We have not yet determined whether the records in question will be admissible at hearing. 4 It is our understanding, from review of the record to date, that there are approximately 20-30 employees in question, and that the complainant has obtained authorization from 12 of these employees for the release of their personnel records. -2- (i) the employee may provide written authorization for the respondent to release confidential personnel records to the complainant forthwith, for use in the proceedings before the Maine Labor Relations Board; or (ii) the employee may seek to prevent disclosure of the records by notifying the Executive Director of the Maine Labor Relations Board within five days after notice has been sent that s/he objects to disclosure. The notice shall indicate that, if the employee objects, s/he may be required to appear before the Board to testify in these proceedings in lieu of disclosure. Finally, the notice shall indicate in a conspicuous manner that failure to execute a release or to notify the Board within the time given of any objection to the release of confidential records will be deemed a waiver of all objections to the release of confidential personnel records to the complainant for use in these proceedings. The respondent shall provide the complainant and the Board with copies of the notice and a master list of affected employees. Respondent shall also forward to the complainant and the Board copies of all releases obtained. If any employee files an objection with the Board, the executive director shall notify the parties, and the complainant may request a subpoena(s) at that time to require the attendance of said employee(s) at the hearing, and to require that they bring with them copies of their personnel file for use, if necessary, during their testimony. Likewise, the parties will be notified by the executive director of any employees deemed to have waived objection to the release of confidential records, and those records shall be released to the complainant.[fn]5 Disclosure of information made confidential by 20-A M.R.S.A. ____________________ 5 As to the release of documents pertaining to employees now deceased, the Board will not order release of those documents at this juncture. If the complainant wishes to renew its request for subpoena of those documents after its review of all other documents released, the Board will require the parties to brief this issue at that time. -3- 6101 in these proceedings before the Board will be subject to the terms of the protective order which accompanies this interim order. Dated at Augusta, Maine, this 14th day of September, 1998. MAINE LABOR RELATIONS BOARD /s/_____________________________ Peter T. Dawson Chair /s/_____________________________ Karl Dornish, Jr. Employer Representative /s/_____________________________ Carol B. Gilmore Alternate Employee Representative -4-