STATE OF MAINE                                   MAINE LABOR RELATIONS BOARD
                                                 Case No. 77-31
  and                                  ) 
RICHARD J. MCDONOUGH                   )
                         Complainants  )
  v.                                   )
THE STATE OF MAINE                     )
             and                       )         DECISION AND ORDER  
State of Maine                         )
             and                       )
LANNING S. MOSHER, Director            )
State of Maine                         )
                          Respondents  )
     This case comes to the Maine Labor Relations Board by way of a Prohibited
Practice Complaint dated February 15, 1977, and filed by Richard J. McDonouqh,
President, Maine State Employees Association, on February 18, 1977.  The Response
to the aforesaid Complaint was dated March 2, 1977 and filed by John J. Sears,
Esquire, Staff Counsel, Office of State Employee Relations on March 1, 1977.  A
pre-hearing conference was held in this matter on Tuesday, March 15, 1977, at
9:30 a.m. in the Bureau of Labor Conference Room, Augusta, Maine, with Alternate
Chairman, Donald W. Webber, presiding.  As a result of the pre-hearing conference,
a Pre-Hearing Conference Memorandum and Order was issued by Mr. Webber on March 17,
1977, the contents of which are incorporated herein by reference.  A hearing was
held on Tuesday, May 12, 1977, in the Bureau of Labor Conference Room, Augusta,
Maine.  As a result of the hearing, a briefing schedule was set with final briefs
due on or before June 10, 1977.
     The Maine Labor Relations Board meeting on July 5, 1977, proceeded to deliber-
ate on this case, Alternate Chairman Donald W. Webber presiding with Robert D. Curley,
Employer Representative and Michael Schoonjans, Employee Representative.
     The parties have not challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude that this Board has jurisdiction to hear and
render a decision in this case as provided in 26 M.R.S.A.  979-H.

                               FINDINGS OF FACT

     Upon review of the testimony given at the hearing as well as the Pre-
Hearing Conference Memorandum and the pleadings, the Board finds:
     1.  Complainant Maine State Employees Association (hereinafter referred to
as "MSEA"), having offices and a place of business at 65 State Street, Augusta,Maine,
04330, is an employee organization within the meaning of the State Employees Labor
Relations Act, 26 M.R.S.A.  979 et seq. and that prior to September 22, 1976, bar-
gaining units for state employees had not been established by the Executive Director
of the Board and on the date or dates of the actions complained of MSEA was not the
certified bargaining agent of any group of state employees.
     2.  MSEA has previously requested of the State of Maine voluntary recognition
of MSEA as the exclusive bargaining agent for state employees and has presently
pending before the Executive Director of the Maine Labor Relations Board several
Employee Requests for Bargaining Agent Elections seeking certification as the ex-
clusive bargaining agent for state employees.
     3.  Complainant Richard J. McDonough, whose address is 18 Oxford Street, Port-
land, Maine 04101, is a state employee employed by the Maine Department of Finance
and Administration in the Bureau of Taxation and is the President of MSEA.
     4.  Respondent State of Maine is the public employer under the State Employees
Labor Relations Act.
     5.  Respondent James B. Longley, Governor, is the representative of the State
of Maine and responsible for the employer functions under the State Employees Labor
Relations Act.
     6.  Respondent Lanning S. Mosher is the Governor's designee under the State
Employees Labor Relations Act.
     7.  After January 15, 1970 and until August 24, 1976, under established state
policy, state employees were granted administrative leave to attend state employee
organization functions without loss of vacation or other type leave or compensa-
tion provided that the granting of such leave would not be detrimental to the opera-
tional needs and performance of the agency involved.  The authority with respect
to such administrative leave rested with various state department heads.
     8.  By letter dated August 24, 1976, respondent Mosher, in behalf of respond-
ents Longley and the State, notified complainant MSEA that MSEA and its state em-
ployee members would be limited to a total of five days administrative leave for
its members to attend the MSEA annual convention on September 23, and 24, 1976 and
that state employees wishing to attend employee organization functions may use
accumulated vacation credits or accrued compensatory time off.
     9.  By a Memorandum dated August 25, 1976, sent to all state department and
agency heads, respondent Mosher formalized a policy that to attend union functions
state employees may use vacation credits provided, and initiated a new policy, that
employees submit their requests to their supervisors at least five days in advance
for the use of vacation credits to attend union conventions and other internal meet-

     10.  As a result of the aforesaid limitations on the use of administrative
leave, a number of state employee members of MSEA had previously approved admin-
istrative leave for attendance at MSEA's annual convention revoked by their de-
partment or agency heads and other state employee members of MSEA were and have
been denied or deterred from seeking administrative leave for attendance at MSEA's
convention, and other MSEA functions and activities.
     11.   Members of other employee organizations, including the American Federa-
tion of State, County and Municipal Employees and the Maine State Nurses Associa-
tion were granted administrative leave without loss of pay or charge against leave
credits for attendance at functions of such other employee organizations consistent
with the same guidelines as were imposed on members of MSEA by the letter of the
Office of State Employee Relations dated August 24, 1976, and memorandum dated
August 25, 1976, and established leave policy.
     12.  Respondents' policy concerning administrative leave and the use of vaca-
tion leave to attend state employee organization functions was promulgated to provide
equal treatment for all employee organizations.
     The Complainants have charged that the conduct of the Respondents in formulat-
ing, issuing and administering an administrative leave policy violates the State
Employees Labor Relations Act by 1) interferring with and restraining certain state
employees in the exercise of rights guaranteed in Section 979-B in violation of
26 M.R.S.A.  979-C(1)(A); 2) discriminating against state employee members of
employee organizations in regard to terms and conditions of employment in violation
of 26 M.R.S.A.  979-C(1)(B); interferring with the formation, existence and adminis-
tration of MSEA in violation of 26 M.R.S.A.  979-C(1)(C); 4) discriminating against
certain state employees because they filed petitions under the Act in violation of
26 M.R.S.A.  979-C(1)(D); and 5) refusing to bargain collectively in violation of
26 M.R.S.A.  979-C(1)(E).
     We find that the Respondents' conduct did not violate the State Employees Labor
Relations Act.
     The obligation to bargain contained in 26 M.R.S.A.  979-D is an "obligation
of the public employer and the bargaining agent to bargain collectively."  A bar-
gaining agent, as defined in 26 M.R.S.A.  979-A(1) is an agent "which has been
determined by the public employer as defined in subsection 5 or by the executive
director of the board to be the choice of the majority of the unit as their repre-
sentative."  The facts in this case clearly indicate that, at all times material
herein, there was no bargaining agent certified or recognized for state employees.
There was no bargaining agent for the public employer to bargain with, and conse-
quently there can be no refusal to bargain as contained in 26 M.R.S.A.  979-D and
no violation of 26 M.R.S.A.  979-C(1)(E).  Therefore, the charge that the Respond-
ents refused to bargain in good faith in violation of 26 M.R.S.A.  979-C(l)(E)
should be and hereby is DISMISSED.

     The remaining alleged violations occurred during the pendency of unit de-
termination petitions and prior to determination of units and the ordering of
elections.  During the formation of bargaining units and the selection of a
bargaining agent, a public employer must exercise caution to avoid violating the
provisions of the State Employees Labor Relations Act.  A change in working con-
ditions by the employer during the organizational process may violate the State
Employees Labor Relations Act, if the change tends to discourage the organiza-
tional efforts.  However, in this case, the bargaining unit process alone took
approximately two years and it is unrealistic to think the employer cannot make
any changes during that time period.  Thus it is necessary to balance the in-
terests of the employer in continuing his operations while considering the adverse
impact the employer's conduct has on employee organizational efforts.  We find that
the employer did not act with an anti-union animus in formalizing the administra-
tive leave policy or in altering the vacation leave policy with respect to organi-
zation meetings.  The valid concerns of the employer in the changing organizational
activity required a change in the policy of administrative leave policy.  The
changes in the policy were evidenced by correspondence from the employer in 1975
and formalized in 1976.  Also, in 1976, the vacation leave policy with respect to
organization meetings was modified.  The changes were made to anticipate an increase
in the leave for such activities.  We credit the testimony of the Respondents with
respect to its motivation, and their attempt to treat all employee organizations
equally during the organizational process.  We also find that the Respondents' con-
duct did not discriminate against the members of the organization.  Therefore, the
Complaint with respect to alleged violation of 26 M.R.S.A.  979-C(1)(A, B, C and
D) should be dismissed.
     On the basis of the foregoing findings of fact and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions of
Section 979-H of the State Employees Labor Relations Act, it is ORDERED:
     1)  That the Complaint of the Maine State Employees Association and
         Richard J. McDonough, dated February 15, 1977, and filed with
         the Maine Labor Relations Board on February 18, 1977, be
Dated at Augusta, Maine this 30th day of August, 1977.
                                    MAINE LABOR RELATIONS BOARD
                                     Donald W. Webber, Alternate Chairman
                                    Robert D. Curley, Employer Reprsentative
                                    Michael Schoonjans, Employee Representative