STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 80-04 _______________________________________ ) COUNCIL NO. 74, AMERICAN FEDERATION ) OF STATE, COUNTY, AND MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) MAINE SCHOOL ADMINISTRATIVE DISTRICT ) NO. 1, its Board of Directors, and ) its Superintendent, Donald J. Sipe, ) ) Respondents. ) _______________________________________) On September 12, 1979, Council No. 74 of the American Federation of State, County, and Municipal Employees, AFL-CIO (the "Union") filed a prohibited practice complaint against Maine School Administrative District No. 1, et al. (the "School District"). The School District filed an answer to the complaint on September 20, 1979. An amended complaint was filed by the Union on October 1, 1979. The School District answered the amended complaint on October 12, 1979. A pre-hearinq conference on the case was held October 15, 1979, Alternate Chairman Donald W. Webber presiding. As a result of this pre-hearinq conference, Alternate Chairman Webber issued on October 22, 1979 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the case was held October 31, 1979, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Harold Noddin. The Union was represented by H. Ross Ferrell, Jr., and the School District by Annalee Z. Rosenblatt. Full oppor- tunity was given to examine and cross-examine witnesses, and to introduce documentary evidence. Both parties filed post-hearing briefs, which have been considered by the Board. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations Board in this case, and we conclude that the Board has jurisdiction to hear and render a decision in the case as provided in 26 M.R.S.A. 968(5). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. Complainant Union is a public emnloyee organization within the meaning of 26 M.R.S.A. 968(5)(B). Respondents School District, its Board of Directors, and its Superintendent are all public employers as defined in 26 M.R.S.A. 962(7) and within the meaning of 26 M.R.S.A. 968(5)(B). -1- ______________________________________________________________________________ 2. By letter dated May 18, 1979, a Union field representative informed Superintendent Sipe that the Union was attempting to organize School District employees holding secretarial, teacher aide, and food service positions. In a May 24, 1979 letter to the Superintendent, the field representative requested that the School District agree on an appropriate bargaining unit composed of certain non-professional em- ployees employed by the School District. The parties even- tually agreed upon an appropriate unit, and the Union filed a petition for an election for the unit with the Board pursu- ant to 26 M.R.S.A. 967(2). Accompanying the petition for election were copies of authorization cards requesting an election signed by 31 of the 87 employees who were included in the bargaining unit. The Board's Executive Director sub- sequently scheduled a representation election for the unit for September 7, 1979. 3. Sometime subsequent to the commencement of the School District's new fiscal year on July 1, 1979, the School District decided to increase the wages and certain benefits for its food services, secretarial and teacher aide personnel. The exact date when the School District decided to improve the benefits is uncertain, because the decision is not reflected in the minutes of the Board of Directors' meetings on May 22, June 24 or August 28, 1979. Nor does any reference to the improved benefits appear in the 1979-80 Food Services budget proposal or in the minutes of the June 5, 1979 School District budget meeting. At some point, however, the School District decided to increase the number of sick leave days from 10 to 12 days a year for each employee, and to increase the level of allowable accumulation for sick leave days from 90 days to an unlimited accumulation. The employees were also granted an additional paid holiday - the day after Thanksgiving - which increased the number of paid holidays to 10 days per year. 4. The employees were notified of their salary increases when they returned to work after summer vacation in mid-August, 1979. The School District customarily increased the employees' wages each year, with notice of the salary increases being given to the em- ployees upon their return to work after summer vacation. The employees did not become aware of the increase in the number of sick leave days and the additional holiday until August 31, 1979, when the employees received notice of the improved benefits in their paychecks. The upgrading of benefits was not expected by the employees, as the School District did not regularly increase the employees' benefits every year. 5. On August 31 and September 1 and 2, employee Dayle Ashby, who was active in the organizing campaign, telephoned many of the employees in the unit in an effort to ascertain the employees' voting prefer- ences in the upcoming election. Thirty-six employees told Ashby they planned to vote for the Union, 36 employees said they were undecided, and 5 said they intended to vote against the Union. 6. On September 6, Superintendent Sipe issued a two-paqe letter, dated September 5, 1979, to those employees eligible to vote. The letter states that the employees are entitled to unlimited sick leave day accumulation. This was the employees' first notice of the improved sick leave accumulation policy. 7. The Superintendent also stated in the letter that he was per- sonally opposed to any further unionization in the School District, then went on to state: "I also know that it [unionization] will greatly diminish my chances of working directly with you on matters of personal concern to yourself. Both you and I will be bound by a union contract which requires that you be represented by a "steward" of the Union's choosing. The "steward" will probably, but not necessarily, be a -2- ______________________________________________________________________________ representative of one of the groups in the proposed bargaining unit. Keep in mind that two of the three groups - secretaries, cafeteria employees or aides - will be represented by a "steward" who is not in your employment category. My experience tells me that the farther away your representative gets from your personal interests the more difficult it becomes for both of us to reach satisfactory personal solu- tions. "Of even more importance is the fact that Union repre- sentation can become costly to you. Currently our custodian-drivers are paying $4.50 per pay period for membership in AFSCME which amounts to $117.00 per year. * * * "You are now receiving benefits comparable to or better than unionized districts without having to pay costly dues, fines or special assessments." After comparing the School District employees' wages and increased benefits with the wages and benefits received by employees represented by the Union in two other school districts, the Superintendent concluded: "Remember, the Union can promise you everything, but it cannot guarantee you anything. In a collective bargain- ing situation everything, including benefits you now have are negotiable." (Emphasis in original). The Superintendent's letter was hand-delivered to the employees by the Principals in the buildings in which the employees worked. 8. During the evening of September 6, 1979, the Union conducted a meeting for the employees included in the bargaining unit. This meeting had been scheduled approximately one week in advance. Approximately 17 employees attended the meeting. The Union's field representative responded to some of the points raised in the Superintendent's letter during the meeting. 9. Twenty-nine of the 75 employees voting at the September 7th elec- tion voted for the Union. The Executive Director consequently certified that the members of the bargaining unit had selected no bargaining agent. 10. Several days after the election, the Superintendent asked Ashby whether she was aware that the Union planned to file the pro- hibited practice complaint which instituted this case. Ashby responded that she knew about the Union's plans, and that she was not in favor of filing the complaint. The Superintendent asked Ashby to let him know what she did about the complaint. Ashby subsequently wrote a letter to the Union's field repre- sentative, with a copy to the Superintendent. The letter states that the filing of the complaint would not be a good idea, and that the employees would prefer that the complaint be dropoed. DECISION The Union charges that the School District violated 26 M.R.S.A. 964(1) (A) by interfering with the employees' right to a free and fair election. Among the remedies sought by the Union is an order setting aside the results of the September 7, 1979 reoresentation election, and an order directing the School District to bargain with the Union. The School District argues that none of its actions interfered with any of the rights Protected by the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, at seq. (the "Act"). -3- ______________________________________________________________________________ As discussed more fully below, we find that the granting of improved sick leave and holiday benefits during the pendency of the election as well as the threat to reduce benefits contained in the September 5, 1979 letter violated Section 964(1)(A). These actions by the School District unlawfully interfered with the representation election. We will order remedies necessary to effectuate the policies of the Act. 1. The Increased Benefits. The School District's announcement of the improved sick leave and holiday benefits on August 31 and September 6 violated Section 964(1)(A). That Section prohibits the employer from interfering with employee exercise of the rights guaranteed in Section 963. Among the rights protected by Section 963 is the right to organize or join an organization for the purposes of representation and collective bargaining. Here the School District increased the number of sick leave days per year from 10 to 12 days, and increased the level of allowable accumulation for sick leave days from 90 days to an unlimited accumulation. The number of paid holidays were increased from 9 to 10 days per year. These were significant improvements in the employees' benefits. The employees learned of the increased number of sick leave days and the additional holiday when they received their paychecks on August 31 and learned of the unlimited sick leave increase upon receipt of the Superintendent's letter on September 6. The representation election was held September 7. It is settled that "the conferral of employee benefits while a represen- tation election is pending, for the purpose of inducing employees to vote against the union, . . . 'interferes with' the protected right to organize." NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). The employer in Exchange Parts announced improved holiday, overtime and vacation benefits two weeks before the representation election. The Supreme Court held that the announcement of improved benefits while the election was pending was suffi- cient by itself to violate Section 8(a)(1) of the National Labor Relations Act, and to warrant the setting aside of the election which the union lost. 375 U.S. at 410.[fn]1 The rationale for the Court's holding was explained as follows: "The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." 375 U.S. at 409 (Footnote omitted). We have no doubt in the present case that the conferral of improved bene- fits was intended to induce the employees to vote against the Union. The test for determining under Exchange Parts whether a grant of benefits was intended to influence the election is as follows: "Although granting employee benef4lts during the period immediately preceding an election is not per se objectionable, the Board finds such actions calculated to influence employees in their choice of a bargaining representative unless the Employer establishes that the timing of the action was governed by factors other than the pendency of the election." (Footnote omitted). _______________ 1 Section 964(1)(A) is analogous to Section 8(a)(1). Cf. Caribou School Department v. Caribou Teachers Association, 402 A.2d 1279, 1283 (1979). -4- ______________________________________________________________________________ Micro Measurements, 233 NLRB 76 (1977). The School District has not attempted to prove any legitimate reason or justification for granting the improved benefits during the pendency of the election. In the absence of any evidence showing valid reasons for the con- ferral of benefits, the inference that the additional benefits were intended to influence the employees in their voting is inescapable. Such attempts to influence the election are unlawful because they interfere with the employees' free exercise of their Section 963 rights, in violation of Section 964(1)(E). The facts of this case also strongly suggest that the School District was attempting to influence the election by increasing benefits. The decision to increase the benefits does not appear as part of the regular proceedings of the School District Board of Directors conducted on May 22, July 24 and August 28, 1979, nor does any reference to the improved benefits appear in the 1979-80 Food Services budget proposal or in the minutes of the June 5, 1979 School District budget meeting. The conferral of benefits was wholly unexpected by the employees, who had no inkling that they had received improved benefits until August 31 and September 6. The School District did not announce the improved benefits at the same time that it announced the salary increases in mid-August when the employees returned to work, but rather waited until 27 days and 1 day before the election to tell the employees about the new benefits.[fn]2 These facts suggest that the additional benefits would not have been granted but for the fact that a representation election was pending. In addition, coupled with the fact that benefits were increased just prior to the election is the fact that, as discussed infra, the Superintendent in his September 5th letter threatened that the employees could lose their existing benefits if they voted in the Union. This threat that the employees could lose their benefits in conjunction with the fact that benefits had just been increased leaves no question that the School District was impermissably attempting to dissuade the employees from voting for the Union. We conclude that the School District improved the sick leave and holiday benefits for the purpose of inducing the employees to vote aaainst the Union, and that the conferral of improved benefits durinq the pendency of the election accordingly constituted a serious violation of Section 964(1)(A). 2. The September 5, 1979 Letter. Among the statements contained in the Superintendent's September 5th letter to the employees is the following: "Remember, the Union can promise you everything, but it cannot guarantee you anything. In a collective barqaining situation everything, including benefits you now have are negotiable." (Emphasis in original). Pre-election statements which reasonably tend to threaten employees with loss of existinq benefits if they select the union violate Section 964(1)(A). See, e.g., Plastronics, Inc., 133 NLRB 155, 156 (1977); Textron, Inc., 199 NLRB 131 (1972). _______________ 2 The salary increases granted by the School District did not violate the Act because salary increases are regularly granted every year when the employees return to work after summer vacation. Wage increases under these circum- stances while an election is pending are lawful. See, e.g., Essex Inter- national, Inc., 216 NLRB 570, 576-77 (1975). -5- ______________________________________________________________________________ There are at least two reasonable interpretations of the Superintendent's statement which render the statement unlawful. The statement could reasonably be read in context as a threat either to discontinue unilaterally existing benefits prior to negotiations, or to adopt a regressive bargaining posture designed to force a reduction of existing benefits for the purpose of penal- izing the employees for choosing the Union. Under either interpretation the statement violates Section 964(1)(A). The threat regarding benefits is made even more egregious by the fact that the September 5th letter containing the threat not only makes reference to the substantial benefit improvements announced on August 31st, but also announces for the first time that the employees were entitled to unlimited sick leave day accumulation. Announcing and discussing newly acquired bene- fits while at the same time threatening loss of existino benefits plainly conveys the "message" that benefits freely given can be freely taken away, if the employees opt to unionize. The Superintendent's statement regarding benefits reasonably tended to threaten the employees with loss of existing benefits if they selected the Union. The statement constitutes a serious violation of Section 964(1)(A). Other statements contained in the September 5th letter are misleading and untruthful. For example, the Superintendent's claim that only one job steward would represent the entire unit and that two groups of employees in the unit thus would be represented by someone outside their job classification has no basis in fact. The suggestion that the Superintendent and the employees could no longer have a personal relationship if the Union was selected is untrue. The assertion that union representation can result in "costly dues, fines or special assessments" is misleading because under the law a union is required to represent all public employees in the unit without regard to membership. 26 M.R.S.A. 967(2). Such misleading and inaccurate statements in many circumstances constitute unlawful employer interference with employee organi- zational rights. See, e.g., Bausch & Lomb Inc. v. NLRB, 451 F.2d 873 (2nd Cir. 1971). This is particularly true where, as here, the union did not have adequate time before the election to respond to and correct the false and misleading statements. We do not make specific findings as to whether the inaccurate and mis- leading statements are violations of Section 964(1)(A), however, since we have already found two serious violations of that Section. Suffice it to say that a party which makes misleading and untruthful statements to employees during the pendency of a representation election runs a substantial risk of violating the Act; "one who engages in 'brinkmanship' may easily overstep and tumble into the brink." Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967). It is unnecessary to decide whether the Superintendent's statements overstep the lawful boundries, since any further findings of Section 964(1)(A) violations merely would be redundant. 3. Remedies. Upon finding that a party has engaged in a prohibited practice, we are instructed in Section 968(5)(C) to order the party "to cease and desist from such prohibited practice and to take such affirmative action . . . as will effectuate the policies of this chapter." We accordingly will order the School District to cease and desist from interfering with its employees in the exercise of rights guaranteed in Section 963 by granting them economic benefits or by changing the -6- ______________________________________________________________________________ terms and conditions of their employment, or by threatening the employees with loss of benefits for engaging in union activity. All benefits heretofore granted by the School District are to remain unchanged. We will also order Superintendent Sipe to take the affirmative action of immediately signing and dating copies of the attached Notice, and posting these signed copies at all places where notices to employees customarily are posted. We also find that the School District's unlawful actions improperly interfered with the holding of a free and fair election on September 7, 1979: "Conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of con- duct which may interfere with the 'laboratory conditions' for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or co- ercion which violates Section 8(a)(1)." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87 (1962). The School District's conferral of increased benefits and its threat that the employees could lose their benefits destroyed the laboratory conditions necessary to hold a fair and free election. We are empowered when the employer's misconduct has destroyed the pre- election laboratory conditions to order that the employer recognize and bargain with the Union without an election. NLRB v. Gissel Packing Co., 395 U.S. 575, 613-615 (1969). We have this power even when the union has already lost the representation election. See, e.g., Bandag, Inc. v. NLRB, 583 F.2d 765, 773 (5th Cir. 1978); Wisconsin Emoloyment Relations Commission v. City of Evansville, 69 Wis.2d 140, 230 N.W.2d 688, 699-703 (1975). Bargaining orders are appropriate, however, only when the union at some point has obtained the support of a majority of the employees in the bargaining unit, or when the employer's prohibited practices are outrageous and pervasive. Gissel Packing Co. at 613-614. The Union obtained signed authorization cards from 31 of the 87 employees included in the unit, or from slightly less than 36% of the members of the unit. While this showing of support is sufficient under Section 967(2) to get an election, it is not the majority showing upon which a bargaining order can be based. Moreover, we believe that while the School District's misconduct resulted in serious violations of Section 964(1)(A), the unlawful actions do not rise to the level of being "outrageous" or "pervasive." We consequently conclude that the facts of this case do not warrant issuance of a bargaining order. Since the results of the September 7, 1979 election are contaminated by the School District's unlawful actions, we will set aside the election, and direct our Executive Director to conduct a new representation election within 45 days of the date of this Decision and Order. Any efforts by the School District to interfere with the new election will be treated as a most serious matter by the Board. -7- ______________________________________________________________________________ ORDER Upon 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. 968(5), it is hereby ORDERED: That M.S.A.D. No. 1, its Board of Directors and its Superin- tendent Donald J. Sipe 1. Cease and desist from: (a) granting their employees economic benefits or changing the terms and conditions of their employment for the purpose of inducing the employees not to support the Union; provided, however, that nothing in this Decision and Order shall be construed as requiring the Respond- ents to vary or abandon any economic benefit or other term and condition of employment which it has hereto- fore established. (b) threatening their employees with loss of benefits for engaging in union activity or giving assistance or support to the Union. (c) in any like or related manner interfering with, restrain- ing or coercing employees in the exercise of their rights under Section 963 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: Post copies of the attached Notice in all places where notices to the employees in the bargaining unit custo- marily are posted. All copies of the Notice are to be signed and dated by Superintendent Sipe prior to post- ing, are to be posted within I day after their receipt by the School District, and are to remain posted for a period of 60 consecutive days. IT IS FURTHER ORDERED that the election held September 7, 1979 is set aside and that proceeding remanded to our Executive Director for the purpose of conducting a second election within 45 days of the date of this Decision and Order. Dated at Augusta, Maine, this 29th day of February, 1980. MAINE LABOR RELATIONS BOARD /s/____________________________________ Edward H. Keith Chairman /s/____________________________________ Don R. Ziegenbein Employer Representative /s/____________________________________ Harold S. Noddin Alternate Employee Representative -8- ______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE NOTICE TO ALL EMPLOYEES PURSUANT TO a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT we hereby notify all personnel that: (1) WE WILL NOT grant our employees economic benefits or change their terms and conditions of employment for the purpose of inducing them not to support the Union; provided, however, that nothing in the Decision and Order requires us to vary or abandon any economic benefit or any term or condition of employment which has heretofore been established. (2) WE WILL NOT threaten our employees with loss of benefits for engaging in union activity or giving support or assistance to the Union. (3) WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 963 of the Act. MAINE SCHOOL ADMINISTRATIVE DISTRICT NO. 1 Dated ___________________ By __________________________________________ Donald J. Sipe Superintendent This Notice must remain posted for 60 consecutive days as required by the Decision and Order of the Maine Labor Relations Board and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the offices of the Maine Labor Relations Board, State Office Building, Augusta, Maine 04333, Telephone 289-2016.