STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 78-16 and 78-20
______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
STATE COUNTY, MUNICIPAL, AND )
UNIVERSITY WORKERS, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
UNIVERSITY OF MAINE, )
)
Respondent. )
______________________________)
These cases come to the Maine Labor Relations Board ("Board") by way of pro-
hibited practice complaints filed November 29, 1977 and February 15, 1978 by
Teamsters Local Union No. 48 ("Local 48"). The University of Maine's ("University")
responses to the complaints were filed December 2, 1977 and March 3, 1978.
Pre-hearing conferences on the cases were held January 31, 1978 and April 4,
1978, Alternate Chairman Donald W. Webber presiding. As a result of these pre-
hearing conferences, Alternate Chairman Webber issued on February 8, 1978 and
April 11, 1978 Pre-Hearing Conference Memoranda and Orders, the contents of which
are incorporated herein by reference. The two cases were consolidated for Board
hearing and determination at the April 4, 1978 pre-hearing conference.
Hearings on the cases were held August 29, 1978, September 21, 1978, and
January 16, 1979, Chairman Edward H. Keith presiding, with Employer Representative
Paul D. Emery and Employee Representative Michael Schoonjans. Briefs arguing the
issues raised in the cases were all filed by March 14, 1979, and the Board pro-
ceeded to deliberate over the cases at a conference held May 15, 1979.
JURISDICTION
Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in these matters, and we conclude that the Board has jurisdiction to hear
the cases and render a decision and order as provided in 26 M.R.S.A. 1029.
FINDINGS OF FACT
Upon review of the entire record, the Board finds that:
1. Complainant Teamsters Local Union No. 48 is a university
employee organization within the meaning of 26 M.R.S.A.
1029(2). Respondent University of Maine is the university
defined in 26 M.R.S.A. 1022(10) and referred to in 26
M.R.S.A. 1029(2).
2. On August 1, 1977, Local 48 was certified as the bargaining
agent, as defined in 26 M.R.S.A. 1022(1-B), for those
employees who are included in the University's Police
bargaining unit, determined in accordance with 26 M.R.S.A.
[-1-]
_____________________________________________________________________________________
1024(1). Negotiations between Local 48 and the University for
a collective bargaining agreement covering the employees in the
Police bargaining unit commenced in September, 1977.
3. On March 22, 1978, Local 48 was certified as the bargaining agent
for those University employees included in the Service and Mainte-
nance bargaining unit. Local 48 had filed a petition for appro-
priate unit determination and a petition for election with the Board
for the Service and Maintenance unit on March 30, 1977.
4. In August, 1976, the University issued guidelines governing the
solicitation of membership among University employees by labor
organizations. Among the Provisions of these guidelines were the
following:
1. SOLICITATION
A. Solicitations of union membership by individuals
who are not employees of the University of Maine
will be allowed on the University campuses in non-
working areas (for the purpose of this policy,
classrooms and laboratories shall be considered to
be working areas) during nonworking hours (non-
working times, where applicable), with the under-
standing that coffee breaks are not considered as
nonworking, of employees involved; provided that
such solicitation is not disruptive.
3. MEETINGS
A. Labor organizations may hold meetings whether for the
purposes of organization, solicitation of membership
or otherwise, provided that such meetings are held
for no illegal purpose, in University facilities dur-
ing nonworking hours (nonworking times, where applic-
able), provided that the use of such facilities shall
be subject to the same terms and conditions as are
applicable to the use of the University facilities
by non-University related organizations; and, pro-
vided further, that such meetings shall be held in
such manner, and at such times as not to interfere
with the regularly scheduled working hours (working
times, where applicable) or classroom schedules of the
University or its employees.
The guidelines also provide that University employees are allowed to
solicit union membership in nonworking areas during nonworking hours
or times with coffee breaks being considered as nonworking. The
record contains no evidence that the guidelines were applied in an
inequitable or discriminatory manner to Local 48.
5. The University in October, 1977 implemented a biweekly payroll plan
for all University employees except those included in the
Police bargaining unit. Under the plan, those University employees
who had previously been paid on a weekly or monthly schedule commenced
receiving their salary on a biweekly basis. The conversion to a bi-
weekly payroll system was a result of a program of economies formulated
in response to certain economic recommendations by the Maine Management
and Cost Survey. The University had considered the change in payroll
plans at least since September, 1976. University employees were aware
that the University intended to implement the biweekly pay system at
least by October, 1976.
6. The employees in the Police bargaining unit continued subsequent to
implementation of the biweekly payroll plan to be paid on a weekly
basis. During this period, Local 48 and the University were bargaining
for a collective bargaining agreement for the members of the Police
unit. Among the subjects of bargaining was the biweekly payroll plan.
On December 23, 1977, the University implemented the biweekly plan for
the members of the Police unit. The parties had not reached agreement
-2-
_____________________________________________________________________________________
on the plan, and Local 48 had not consented to implementation
of the plan. At that point in negotiations, the parties had
not invoked any of the dispute resolution procedures provided
in 26 M.R.S.A. 1026.
7. Although the Police unit employees were not to be affected by
implementation of the biweekly pay plan in October, 1977, these
employees did not always receive their night differential, over-
time and holiday pay on a weekly basis, as was the practice prior
to implementation of the new payroll plan. Due to the technical
and administrative difficulties incurred in preparing weekly checks
for the small number of employees in the Police unit, these employ-
ees on occasion during the October-December, 1977 period received
their night differential, overtime and holiday pay less frequently
than once per week. The record does not show that any employee lost
money as a result of the confusion surrounding the payment of night
differential, overtime or holiday pay, however. After the biweekly
plan was implemented for Police unit employees on December 23, 1977,
these employees regularly received their night differential, overtime
and holiday pay on a biweekly basis.
8. On or about August 22, 1977, Stephen Weber, an assistant to the
President at the University's Orono campus and the University's
employee relation liaison at the Orono campus, learned about the
possibility that a union meeting was being held in the York Hall
complex that day. After being unable to locate the meeting, Weber
asked a chef in the complex's kitchen whether he was aware of any
union meeting scheduled for that day. The chef responded negatively,
but indicated that two employees whom he supervised working nearby,
who were members of the Service and Maintenance unit, might know some-
thing about a meeting. Weber, accompanied by the chef/supervisor,
approached one of the employees, Cecil Barker, stating that he was
from the President's office and asking who was responsible for calling
the meeting.
9. Barker grew nervous and upset at this questioning, believing that he
should not be talking about union matters with someone from the
President's office. Fearing that his job might be in jeopardy, however,
Barker told Weber that Frank St. Louis and a Mr. Mitchell had called
the meeting. Weber wrote something in a notebook, assured Barker
several times that nobody was in trouble and that Barker had nothing
to be concerned about, and then left.
10. Weber's questioning of Barker interfered with and had a coercive effect
on the Service and Maintenance employees' exercise of their organiza-
tional rights guaranteed by 26 M.R.S.A. 1023. At the commencement
of a union meeting in York Hall on August 25, 1977, several employees
informed the organizer for Local 48 that the meeting should not be
held and that the organizer should leave the area. The employees
stated that there was too much tension for a meeting because of the
incident involving the chef/supervisor and Weber.
11. On August 23, 1977, Frank St. Louis, a University employee in the Serv-
ice and Maintenance Unit, received a message at his work site that Jack
Blake, a University Vice-President in charge of finance and administra-
tion at the Orono campus, wished to see St. Louis in Blake's office.
St. Louis proceeded to Blake's office and was told by Blake that the
University had a new labor relations person, Stephen Weber, to whom
St. Louis should explain the procedure for scheduling union meetings.
Weber was called into the office, and a discussion ensued between
St. Louis and Weber regarding the procedures for scheduling meetings.
The result of this discussion was that St. Louis agreed to go through
Weber's office when setting up meetings.
-3-
_____________________________________________________________________________________
12. St. Louis and Blake had had a friendly and open working relationship
for at least 10 years prior to the incident in question. This rela-
tionship was initiated when St. Louis as a union official asked Blake
for an open line of communications for the discussion of employee
problems regarding grievances and other matters.
13. On October 27, 1977, several University employees and a Local 48
organizer were meeting in a room in the Folger Library on the Univer-
sity's Orono campus. During the course of the meeting, Stephen Weber
walked past the open door of the meeting room several times, glancing
into the room as he moved by the door.
14. Weber on October 27, 1977 was engaged in supervising the final prepara-
tions for a visit on October 27th by the donor of a classical music
listening room to the University. The music listening room is adjacent
to the room in which the union meeting was being held. The only way to
enter the music listening room is to pass by the door of the room in
which the union meeting was held. While checking on the preparations
in the music listening room on October 27th, Weber entered and exited
from the room several times. The donor did inspect the music listening
room as scheduled during the afternoon of October 27, 1977.
15. On December 1 or 2, 1977, members of the Police unit picketed outside
a Board of Trustees meeting at the University's Farmington campus. The
employees were protesting what they perceived to be the University's
failure to bargain in good faith. Some of the employees were wearing
their police uniforms. By memorandum dated December 2, 1977, the Uni-
versity's Director of the Department of Police and Safety stated that
the police uniform could be worn only on officially assigned duty,
traveling to and from assigned duties, or as authorized by the Director.
The memorandum states that the wearing of the uniform at other times
may result in disciplinary action. Prior to issuance of the December
2nd memorandum, there had been no directive from the University stating
when police uniforms could be worn.
16. On December 20, 1977, members of the Police unit picketed a Board of
Trustees meeting at the University's Portland campus. Again the em-
ployees were protesting the alleged failure to bargain in good faith.
The picketing commenced at the entrance to a University parking lot.
After approximately two hours of picketing, the picketing team marched
with their signs into the auditorium where the public meeting was in
session, arraying themselves at the rear of the auditorium. The
picketers then were approached by the Director of the Department of
Police and Safety, who stated that Walter Fridinger, a University Vice-
President, had said that the picketers must leave the auditorium and
picket outside, or the University would file an unfair labor practice
charge. The picketers consequently left the meeting.
17. On January 6, 1978, Ray Denbow, a Patrolman at the Orono campus, re-
quested a meeting with the University's Chief of Police and Safety
at Orono for the purpose of discussing whether disciplinary action against
Denbow was being considered because of a letter which Denbow wrote on
January 4th. Denbow had complained about the assignment of overtime and
the issuance of Mace in the January 4th letter, which Denbow had given
to his supervisor. After delivering the letter, Denbow had trepidations
about disciplinary action for the letter, and consequently wished to
discuss the matter with the Chief. The Chief agreed to meet, but when
Denbow requested the presence of a union representative at the meeting,
the Chief refused to talk to any union representative. The Chief stated,
however, that if Denbow still wished to talk about the matter, he could.
Denbow accordingly attended the meeting with the Chief unaccompanied by a
union representative.
DECISION
Local 48 has charged that various actions by the University's representatives
and agents violated Section 1027(1)(A) and (E) of the University of Maine Labor
-4-
_____________________________________________________________________________________
Relations Act, 26 M.R.S.A. 1021, et seq. ("Act"). Specifically, Local 48 contends
that the University violated Section 1027(1)(E) by:
1) unilaterally implementing the biweekly payroll plan on December 23, 1977,
for the Police unit employees, and
2) unilaterally withholding the payment of night differential, overtime and
holiday pay from the weekly paychecks of Police unit employees between October-
December, 1977.
Local 48 argues that the University violated Section 1027(1)(A) by:
3) changing the payroll period of the Service and Maintenance unit employees from
weekly to biweekly,
4) enforcing its solicitation and distribution guidelines during Local 48's
organizational campaigns,
5) interrogating an employee to determine the organizer of a union meeting and
then interrogating the organizer,
6) threatening Police unit members if they refused to leave the December 20,
1977 Board of Trustees meeting,
7) threatening on December 2, 1977 Police unit members who wore their uniforms
while picketing.
8) denying a Police unit member's request for union representation at a meet-
ing which could have resulted in disciplinary action, and
9) surveying an organizational meeting on October 27, 1977.
The University urges that the actions by its agents and representatives do not
constitute violations of the Act.
As discussed more fully below, we find violations involving the events referred
to in points 1), 5), and 7) above. The alleged violations regarding the incidents
outlined in points 2), 3), 4), 6), 8), and 9) we conclude to be without merit. We
consequently will order remedies necessary to effectuate the policies of the Act,
and will order that the paragraphs in Local 48's complaints containing meritless al-
legations be dismissed.
The allegation regarding unilateral implementation of the payroll plan for
the Police unit employees. We must agree with Local 48's contention that the Univer-
sity violated Section 1027(1)(E) by unilaterally implementing the biweekly payroll
plan for Police unit employees on December 23, 1977. The rule prohibiting unilateral
changes in wages, hours and working conditions during negotiations for a collective
bargaining agreement is so well settled as to be beyond question. See, e.g., N.L.R.B.
v. Katz, 369 U.S. 736 (1962); Lake Teachers Association v. Mount Vernon School Commit-
tee, M.L.R.B. No. 78-15 (1978). The rationale underlying this rule, as stated by the
Supreme Court in Katz, is that unilateral changes in conditions of employment under
negotiation frustrates the duty to bargain, found in the Act in Section 1027(1)(E),
just as effectively as does a flat refusal to bargain. 369 U.S. at 743.
The University implemented the biweekly payroll plan for all University employees
except members of the Police bargaining unit in October, 1977. At that time,
-5-
_____________________________________________________________________________________
the University and Local 48 were negotiating for a collective bargaining agreement
for the Police unit employees. Among the topics of bargaining was the University's
proposed biweekly pay plan. On December 23, 1977, while negotiations were ongoing,
the University unilaterally implemented the biweekly pay period for the employees
in the Police unit. Local 48 had not agreed to the plan during negotiations.
The parties had not reached bona fide impasse on the issue, since none of the dis-
pute resolution procedures provided in the Act had yet been invoked, nor are any
of the other limited exceptions to the rule prohibiting unilateral changes applic-
able. See MSEA v. State of Maine, M.L.R.B. No. 78-23 (1978).
The University contends that implementation of the biweekly pay plan was a
management decision about which the University is not obligated to bargain. We
cannot agree with this argument because it is plain that the topic of pay periods
involves employee working conditions and thus is a mandatory subject of bargaining.
Labor boards and the courts have consistently held that the subject of pay periods,
specifically including changes in pay periods from weekly to biweekly, is a manda-
tory subject of bargaining about which the employer must bargain before implement-
ing changes. See, e.g., King Radio Corp., Inc., 166 N.L.R.B. 649, 654 (1967),
enforced King Radio Corp. v. N.L.R.B., 398 F.2d 14, 20 (10th Cir. 1968); Local 482,
Building Service Employees and LaCrosse Lutheran Hospital, 49 LRRM 1100 (Wisc.
Employment Relations Bd. 1961). Consistent with these decisions, we believe that
the frequency of payment of one's salary is integrally related to working conditions.
A change in a pay period amounts to a direct change in working conditions.
The fact that the University's Charter grants the Board of Trustees the autor-
ity to plan and govern the affairs of the University does not mean that the University
has the discretion to change employee working conditions at will, without bargain-
ing to agreement or impasse on the question with the affected employees' bargain-
ing agent. Such a holding would make mockery of the Act. The Board of Directors'
right to plan and govern the affairs of the University is no different than the
right of a municipal employer or a private employer to plan and govern the affairs
of the municipality or the business. Yet municipal employers and private employers
are required to bargain before changing working conditions when the affected employ-
ees have a bargaining agent. Section 1026(1)(C) of the Act states unequivocally
that the University is obligated to negotiate with respect to wages, hours and work-
ing conditions. The Act contains no management prerogatives clause which removes
certain topics involving wages, hours and working conditions from the realm of
collective bargaining.
The fact that the University bargained several months about the biweekly pay
plan before implementation does not satisfy the University's obligation to bargain
the change in pay periods. As previously noted, the parties had reached neither
agreement nor impasse on the issue, in light of these circumstances, implementa-
tion of the plan undermined the statutorily mandated duty to bargain just as
effectively as if the University had implemented the plan without bargaining at
all.
For all of the foregoing reasons, we conclude that the University's December
23, 1977 implementation of the biweekly payroll plan for Police unit employees
-6-
_____________________________________________________________________________________
constitutes a violation of 26 M.R.S.A. 1027(1)(E). We will order remedies
necessary to effectuate the policies of the Act.
2. The allegation regarding the unilateral withholding of payment of
night differential, overtime and holiday pay. Unlike the facts involving the
unilateral implementation of the payroll plan, the record does not show that the
University made a deliberate decision to withhold or otherwise change weekly pay-
ment of the Police unit employees' night differential, overtime or holiday pay.
Local 48 alleges that while the Police unit members weekly received their regular
salary from October to December, 1977, the members did not receive their night
differential, overtime or holiday pay during this period on a weekly basis, and
that this unilateral change by the University constitutes a violation of Section
1027(1)(E).
The record shows that the Police unit employees did not receive their night
differential, overtime and holiday pay on a weekly basis during the period in
question. However, the reason for the failure to provide weekly payment was not
that the University had unilaterally decided to make the payments less frequently
than weekly. Instead, the record shows that the payments were delayed because of
the confusion engendered by the bifurcated payroll system, by which the Police
unit employees received their regular salary on a weekly basis and all other
University employees on a biweekly basis. The administrative and technical diffi-
culties created by the necessity that a relatively small number of employees be
paid on a weekly basis resulted in delay in the computation and payment of night
differential, overtime and holiday pay. These difficulties do not rise to the
level of a deliberate "unilateral change" in the payments by the University. Addi-
tionally, there is no allegation that any employee failed to receive full payment,
albeit late, for all time worked.
The University did of course on December 23, 1977 deliberately commence pay-
ing the Police unit employees' night differential, overtime and holiday pay on a
biweekly basis. In our opinion, a unilateral change in the frequency of payment
of night differential, overtime and holiday pay during negotiations constitutes
a violation of the duty to bargain. This violation is encompassed in the violation
found in the discussion of point 1), supra, however. Since the University did not
unilaterally withhold or otherwise deliberately change these payments prior to
December 23rd, there was no violation of Section 1027(1)(E) between October-December
23, 1977. We accordingly will order that Paragraph No. 4 of the complaint in
Case No. 78-16 be dismissed.
3. The allegation regarding the change in the payroll period for Service
and Maintenance unit employees. When the University implemented the biweekly pay-
roll plan in October, 1977, Local 48 was engaged in an organizational campaign
among the members of the Service and Maintenance unit. Local 48 was not certified
as the bargaining agent for this unit until March 22, 1978. Since the Service
and Maintenance unit had no bargaining agent in October, 1977, Local 48 does not
argue that implementation of the payroll plan for the Service and Maintenance
unit employees violated the duty to bargain collectively imposed by Section 1027(1)
(E) of the Act. Instead, Local 48 contends that implementation of the payroll
plan in October, 1977, for the Service and Maintenance employees violated Section
1027(1)(A), which prohibits interference restraint or coerecion of employees in
-7-
_____________________________________________________________________________________
the exercise of their organizational rights guaranteed in Section 1023.
In Teamsters Local 48 v. Town of Oakland, M.L.R.B. No. 78-30 (1978), we
adopted the National Labor Relations Board's test for determining when a viola-
tion of the prohibition against interference, restraint and coercion has occurred:
". . . interference, restraint, and coercion . . does
not turn on the employer's motive or on whether the
coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of em-
ployee rights under the Act."
Cooper Thermometer Co., 154 N.L.R.B. 502, 503, M.2 (1965). Applying this test to
the facts surrounding the present allegation, we do not see that implementation of
the payroll plan can reasonably be said to have tended to interfere with the free
exercise of the Service and Maintenance employees' organizational rights.
The conversion to a biweekly payroll system had been planned by the University
at least since September, 1976. Respondent's Exhibit Nos. 6 through 13 establish
that the University employees were aware of the imminent implementation of the bi-
weekly plan at least since October, 1976. Because the employees knew that the plan
would be implemented months prior to actual implementation in October, 1971, we
do not think that the Service and Maintenance employees could reasonably view the
October implementation as a threatening "message" that the University was dis-
pleased with the employees' organizational activities. See Teamsters Local 48 v.
Town of Oakland, M.L.R.B. No. 79-22 (1978).
In addition, implementation of the plan, which resulted from a program of
of economies, was not a sudden, arbitrary change in practice by the University,
which would create an inference that the implementation was designed to inter-
fere with the employees' organizational rights. See Teamsters Local 48 v. Town
of Fairfield, M.L.R.B. No. 79-01 (1979). For all of these reasons, we will order
that Paragraph No. 5 a) in the complaint in Case No. 78 be dismissed.
4. The allegation regarding the solicitation and distribution guidelines.
Local 48 charges that the University's enforcement of its solicitation and dis-
tribution guidelines interfered with organizing efforts in violation of Section
1027(1)(A). Local 48 specifically complains that the University prohibited out-
side, nonemployee organizers from speaking to employees during coffee breaks, and
required that notice be given to the University of on-campus union meetings.
We do not agree that enforcement of the solicitation and distribution guide-
lines impermissably interfered with the organizational efforts. The guidelines
provide that employee organizers can solicit union membership during nonworking
hours or times, including coffee breaks, and that nonemployee organizers have the
same right, except that nonemployee organizers may not solicit during coffee
breaks. The rule is that a prohibition against solicitation which encompasses
nonworking times is presumptively unlawful. See Republic Aviation Corp. v. N.L.R.B.,
324 U.S. 793, 803-805 (1945); Essex International, Inc., 211 N.L.R.B. 749, 750
(1974). There is, however, a "distinction of substance" between the rules applic-
able to employee organizers and those applicable to nonemployee organizers:
-8-
_____________________________________________________________________________________
"No restriction may be placed on the employees' right to discuss
self-organization among themselves, unless the employer can dem-
onstrate that a restriction is necessary to maintain production
or discipline . . . But no such obligation is owed nonemployee
organizers. Their access to company property is governed by a
different consideration."
N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). This "different con-
cideration" is whether the nonemployee organizers have available other reasonable
channels of communication for reaching the employees, and whether the employer's
solicitation rule is discriminatorily applied to the union. 351 U.S. at 112.
The University's guidelines do not close all reasonable channels of comuni-
cation for nonemployee organizers. While the guidelines define coffee breaks as
a working time as regards nonemployee organizers, nonemployees are allowed under
the guidelines to solicit during nonworking times, including lunch breaks and
before and after working times. The rule which allows employee organizers to so-
licit during coffee breaks but prohibits nonemployee organizers from soliciting
during such times also has a rational basis; the desire to avoid delay on the work
schedule which could occur if nonemployee organizers appeared at the work site to
speak to employees during the relatively short coffee break period. There is no
allegation or evidence that the guidelines were applied in a discriminatory fashion
to Local 48's organizers.
Neither can we agree that the requirement that Local 48 notify the University
before holding a meeting on campus violated Section 1027(1)(A). The University
did not prohibit the holding of on-campus meetings; indeed, the record shows that
every request by Local 48 for a room in which to hold a meeting was granted by
the University. The purpose for the notice requirement was to avoid conflicts
in the scheduling of University meeting rooms by the many off-campus organiza-
tions which use University facilities. There is no evidence that the notice
requirement was discriminatorily applied to Local 48.
We will order that Paragraph No. 5 b) of the complaint in Case No. 78-16 be
dismissed.
5. The allegation regarding interrogations of employees. Local 48 contends
that the University violated section 1027(1)(A) when 1) on or about August 22,
1977 Weber asked Barker who was responsible for calling a union meeting which
supposedly was to be held that day, and 2) on August 23, 1977 St. Louis was called
into Blake's office for a discussion with Weber about the procedures for calling
union meetings. We agree that the Interrogation of Barker constituted a violation
of Section 1027(1)(A), but conclude that no violation occurred as a result of the
meeting between St. Louis, Blake, and Weber.
There is no doubt that Weber's questioning of employee Barker interfered with
and coerced the employees in the free exercise of their organizational rights quaranteed
by Section 1023. Questioning which places an employee in the position of acting
as an informer regarding the union activity of fellow employees will be coercive
in most if not all situations. See, e.g. Abex Corp., 162 N.L.R.B. 328, 329 (1966).
Not only can it be said that the questioning of Barker tended to interfere with
-9-
_____________________________________________________________________________________
the free exercise of employee rights, but it is also plain that the questioning
did in fact interfere with Barker's and other Service and Maintenance workers'
organizational rights.
This interference is established by testimony during the hearings. First,
Barker testfied that during the questioning:
"I was shook up. Things were running through my mind. I didn't
know what was going to happen. I didn't want to cause any problems,
see. . . .
Q "You were afraid for your job?
A "I was a little worried about my job. I didn't know what could be
done, what they would do to me, so I just told him [the names of
the two persons who had called the union meeting]."
Second, an organizer for Local 48 testified that he was unable to hold a
scheduled meeting on August 25, 1977, because of tension caused by the incident
between the chef/supervisor, Weber, and Barker:
"As I walked in and made preparations to convene the meeting, I was
approached by more than one of the employees, and the indication
was given to me that we should not hold the meeting today. There
is too much tension. It would be better to talk about it later
and for me to get out of there as quickly as possible. I asked
briefly what the problem was, and the indication was given to me
that there had been some pressure brought to bear by an individual
by the name of Joe Shorette [the chef/supervisor]."
Although Weber's questioning of Barker was an isolated incident, and although
Weber may have acted innocently with entirely pure motives, it is clear that the
questioning had a coercive effect on the exercise of the employees' organizational
rights. We therefore conclude that the questioning of Barker on or about August
22, 1977 violated Section 1027(1)(A).
We reach the opposite conclusion with regard to the August 23, 1977 meeting
between employee St. Louis, Blake, and Weber, however. Calling an employee into
a locus of managerial authority removed from the normal workplace for the purpose
of interviewing the employee about union activities results in most cases in un-
lawful interference and coercion. See, e.g., Peoples Drug Stores, Inc., 119
N.L.R.B. 634, 636 (1957). However, the facts in the instant case indicate that
management's meeting with St. Louis cannot reasonably be said to tend to interfere
with the free exercise of employee rights.
St. Louis and Blake had had a friendly and open working relationship of at
least ten years duration. This relationship had been initiated by St. Louis, who
as a union official had asked Blake for an open line of communications for the
purpose of discussing employee problems. Contact between St. Louis and Blake
apparently was frequent, and there is no indication that St. Louis considered
being called for a meeting in Blake's office to be an unusual or alarming event.
There is no evidence that any other employee knew of St. Louis' August 23rd meet-
ing with Blake and Weber. Because the August 23rd meeting appears to be more a
continuation of a long-standing practice than an extraordinary event, we conclude
that the meeting did not violate Section 1027(1)(A).
-10-
_____________________________________________________________________________________
6. The allegation regardinq the threatening of Police employees at the
December 20, 1977 Board of Trustees meeting. We cannot agree with Local 48's
contention that the University violated Section 1027(1)(A) by threatening Police
employees at the December 20, 1977 Board of Trustees meeting. After lawfully
picketing outside the building for several hours, the employees on December 20,
1977, marched with their picket signs into the auditorium where the meeting
was being held. The picketers were approached by a University representative,
who stated that a University Vice-President had said that the University would
file an unfair labor practice charge against the employees unless they left the
meeting and picketed outside. The employees then left the meeting.
Threats against employees who are engaged in union activities protected
by Section 1023 constitute unlawful restraint and coercion under Section 1027(1)
(A). The test is 1) whether the employees are engaged in protected activity,
and 2) whether the employees, under all the circumstances, could reasonably con-
clude that the employer is threatening reprisal for participation in the protected
activities. See, e.g., N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 17 (1962);
Hendrix Manufacturing Co. v. N.L.R.B., 321 F.2d 100, 105 (5th Cir. 1963).
The employees were not engaged in protected activity when they marched into
the auditorium with their picket signs. While the employees had the right to be
present at the public Board of Trustees meeting, they had no right to engage in
offensive conduct or to otherwise disrupt the meeting. In our opinion, the manner
in which the employees entered the meeting - marching with picket signs - consti-
tuted offensive conduct which is not protected by Section 1023. Since the employ-
ees were not engaged in protected activity, any threats by the University directed
at the offensive conduct did not violate Section 1027(1)(A). We will order that
Paragraph No. 4 a) of the complaint in Case No. 78-20 be dismissed.
7. The allegation regarding the threatening of Police employees who wore
their uniforms while picketing. Local 48 also charges that the University violated
Section 1027(1)(A) when its Director of the Department of Public Safety issued a
memorandum dated December 2, 1977 threatening disciplinary action essentially if
Police uniforms were worn during off-duty hours. Members of the Police unit, some
of whom were wearing their uniforms, had on December 1 or 2, 1977 picketed outside
a Board of Trustees meeting at Farmington. Prior to issuance of the December 2nd
memorandum, the University had not formally decreed when Police uniforms could be
worn.
We agree that the December 2nd memorandum threatening disciplinary action vio-
lated Section 1027(1)(A). While we have no quarrel with the right of the University
to decree when its employees should wear Police uniforms, the timing of the memo-
randum - coming the same day or the day after the picketing in Farmington - makes
it plain that the threat of disciplinary action contained in the mememorandum was
directed specifically at the picketing which occurred at Farmington.
This picketing was protected by Section 1023. There is no claim that the
picketing employees were engaged in a work stoppage or any other activity prohibited
-11-
_____________________________________________________________________________________
by Section 1027(2)(C). The wearing of uniforms while engaged in off-duty activi-
ties had not yet been prohibited. The wearing of the uniforms while picketing was
an integral part of the picketing activity, since picketing likely is more effec-
tive when the picketers are wearing their uniforms. While the wearing of Police
uniforms on the picket line apparently was offensive to the University, there is
nothing inherently offensive about such conduct.
Had the University prior to the picketing issued the same memorandum as issued
on December 2nd, it is likely that the wearing of uniforms in violation of work
rules would not be protected activity. In the present case, however, the memoran-
dum, was issued in direct response to the protected activity which occurred at
Farmington. The Police employees could reasonably conclude that the threat of
disciplinary action in the memorandum came in reprisal for the picketing at Farm-
ington. This threat tended to interfere with the employees' free exercise of
their rights guaranteed by Section 1023, in violation of Section 1027(1)(A). We
will order an appropriate remedy.
8. The allegation regarding the denial of a request for a union representa-
tive at a disciplinary meeting. On January 6, 1978, Denbow, a Patrolman at the
Orono campus, asked for a meeting the Chief of Police and Safety. Denbow had
previously given his supervisor a letter dated January 4, 1978, in which Denbow
complained about the assignment of overtime and the issuance of Mace. Denbow on
January 6th wished a meeting with the Chief to discuss whether the Chief was con-
templating disciplinary action against Denbow because of the letter. The Chief
agreed to the meeting, but when Denbow stated that he wished to have a union
representative present at the meeting, the Chief refused to talk with a union
representative. The Chief stated, however, that if Denbow still wished to talk
about the matter, he could. Denbow attended the meeting unaccompanied by a union
representative. Local 48 charges that the Chief's refusal to meet with Denbow
and a union representative constitutes a violation of Section 1027(1)(A).
It is well-settled that an employer's denial of an employee's request that
a union representative be present at a meeting which the employee reasonably be-
lieves might result in disciplinary action constitutes unlawful interference,
restraint and coercion. N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975).
This rule of law applies, however, in instances where the employer insists upon
the meeting. This point was made clear in Weingarten when the Supreme Court
stated (420 U.S. at 258):
"The employer has no obligation to justify his refusal to allow
union representation, and despite refusal, the employer is free
to carry on his inquiry without interviewing the employee, and
thus leave to the employee the choice between having an interview
unaccompanied by his representative, or having no interview and
forgoing any benefits that might be derived from one."
Here it was Denbow and not the Chief who requested the meeting. The Chief
agreed to meet, but would not talk to a union representative. Denbow thus was
free to go to the meeting unaccompanied by a representative or not to have a
meeting at all; the Chief did not insist that the meeting be held. In addition,
-12-
_____________________________________________________________________________________
there is no evidence showing that Denbow's belief that the meeting might result
in discipline was reasonable. Given these circumstances, the Chief's refusal to
talk to a union representative does not constitute a violation of Section 1027
(1)(A). Paragraph No. 4 c) of the complaint in Case No. 78-20 will be dismissed.
9. The allegation regarding surveillance of an organizational meeting.
Local 48 also charges that the University violated Section 1027(1)(A) when Uni-
versity representative Weber surveyed a union meeting on October 27, 1977. The
record shows that Local 48 was conducting an organizational meeting in a room in
the Folger Library on the Orono campus on October 27th. During the meeting, Weber
walked by the open door of the meeting room several times, glancing into the room
as he passed by the door.
Surveillance by the employer of employees engaged in union activities consti-
tutes a violation of the prohibition against interference with, restraint and co-
ercion of employees in the free exercise of their rights. See, e.g., N.L.R.B. v.
Aero Corp., 581 F.2d 511, 512-513 (5th Cir. 1978). In the present case, however,
Weber had a legitimate reason for passing by the room where the meeting was held,
which refutes the inference that Weber was surveying the meeting. On October 27,
1977, the donor of money for a classical music listening room visited the University
to inspect the fruits of his donation. Weber was responsible for insuring that the
music listening room was in order for the visit, and for conducting the donor's
tour of the room. Complainant's Exhibit No. 3 shows that the only way into the
music listening room is to pass by the door of the room where the union meeting
was held. In the course of preparing for the visit, Weber on October 27th entered
and exited from the music listening room on several occasions.
While it is understandable that the employees believed that Weber was spying
on their union meeting, there is no evidence, other than the fact that Weber walked
past the meeting room, that Weber was surveying the meeting. The inference that
Weber was surveying the meeting is rebutted by the fact that Weber was legitimately
in the area performing his job duties. We conclude that Weber was not on October
27th illegally surveying the union meetIng, and will order that Paragraph No. 6
of the complaint in Case No. 78-20 be dismissed.
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. 1029, it is ORDERED,
1. That the University of Maine, and its representatives and
agents, cease and desist from,
a. unilaterally changing the wages, hours and
working conditions of the Police unit em-
ployees without first reaching agreement
or impasse with the Police unit's bargaining
agent about such changes.
-13-
_____________________________________________________________________________________
b. interrogating University employees as to the
identity of persons responsible for calling
union meetings, and
c. threatening or applying disciplinary action as
stated in the December 2, 1977 memorandum by
the Director of the Department of Public Safety
against Police unit employees who wear their
uniforms at times other than those stated in
the memorandum, until such time as the policy
stated in the memorandum is lawfully promulgated.
2. That the University of Maine take the following affirmative
action necessary to effectuate the policies of the Act:
Offer in writing to bargain with Teamsters Local Union No.
48 about the biweekly payroll plan for Police unit employees.
This offer shall remain open for 30 days after Local 48's
receipt of the offer. If Local 48 does not accept the offer
to bargain during the 30-day period, the offer will be deemed
withdrawn and the University shall have satisfied its obliga-
tion to bargain about the biweekly payroll plan. The biweekly
payroll plan implemented on December 23, 1977 for Police unit
employees shall remain in effect pending the outcome of any
further bargaining over the plan.
3. That the University of Maine notify in writing the Maine Labor
Relations Board at its offices in Augusta, Maine within 30 days
of the date of this Decision and Order of the steps that the
University has taken to comply with the Decision and Order.
4. That Paragraph Nos. 4, 5 a), and 5 c) in Local 48's complaint
in Case No. 78-16, and Paragraph Nos. 4 a), 4 c), and 6 in
Local 48's complaint in Case No. 78-20 are DISMISSED.
Dated at Augusta, Maine this 29th day of June, 1979.
MAINE LABOR RELATIONS BOARD
/s/________________________
Edward H. Keith
Chairman
/s/________________________
Paul D. Emery
Employer Representative
/s/________________________
Michael Schoonjans
Employee Representative
-14-
_____________________________________________________________________________________