STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 90-07
Issued: June 15, 1990
_____________________________________
)
COUNCIL 93, AFSCME and SANFORD )
UNIT, LOCAL 481, )
)
Complainants, )
)
v. ) DECISION AND ORDER
)
TOWN OF SANFORD, TOWN ADMINISTRATOR )
JOHN WEBB, BOARD OF SELECTMEN and )
PERSONNEL CONSULTANT ANNALEE )
ROSENBLATT, )
)
Respondents. )
_____________________________________)
On December 8, 1989, Council 93, AFSCME as the exclusive collective
bargaining agent of Sanford Unit, Local 481, filed a prohibited practice
complaint with the Maine Labor Relations Board (Board) alleging that the
Town of Sanford, Town Administrator John E. Webb, the Town Board of
Selectmen and Personnel Consultant Annalee Z. Rosenblatt have violated
26 M.R.S.A. 964(1)(A) through (E) (1988).1 The Town filed its answer on
December 26, 1989.2 With the exception of unlawful blacklisting, AFSCME's
complaint alleges that the Town of Sanford has violated every public
employer prohibition contained in 26 M.R.S.A. 964 (1988), by failing to
accord R. Donald Vallee permanent full-time employee status and by failing
to extend contractually established wages and other benefits to him.
AFSCME alleges that the Town unlawfully refused to treat Vallee as a unit
employee: upon his attainment of six months' employment on December 20,
1988, in effecting his termination on January 20, 1989, and upon his rehire
on April 10, 1989. AFSCME also alleges that the Town violated the MPELRL
_______________________
1The complaint was amended on January 9, 1990, to state the specific
provisions of the Municipal Public Employees Labor Relations Law (MPELRL)
alleged to have been violated.
2The answer was amended on January 17, 1990.
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when the Town Administrator denied a grievance requesting contractual per-
manent employee status for Vallee on August 25, 1989, and when the Town
Board of Selectmen upheld that denial on October 24, 1989. Violations of
the MPELRL are further predicated by AFSCME on the Town's failure to accord
Vallee the favorable consideration a permanent employee would have received
as an internal Town applicant, under the contract's terms, when he applied
for a vacant Laborer II - Rubbish Truck position posted by the Town on
September 8, 1989. AFSCME bases its final allegation of violation of the
MPELRL upon the Town's termination of Vallee's employment on September 22,
1989. The complaint requests that Vallee be hired and placed in a full-
time permanent position, that his hire date be established as December 20,
1988, that Vallee be reimbursed for all monetary and other attendant
losses, that the Town post notices of the Board's findings and that the
Town pay the costs incurred by AFSCME in resolving the alleged violations.
The Town's answer requests that the Board dismiss the complaint both
for failure to state a claim upon which relief may be granted, and because
the Board lacks jurisdiction over the complaint since the complaint was not
timely filed.
On Wednesday, January 17, 1990, Public Chair Peter T. Dawson conducted
a prehearing conference in this matter. The January 25, 1990 Prehearing
Conference Memorandum and Order issued by Public Chair Dawson is incor-
porated in and made a part of this Decision and Order. The parties filed
prehearing memoranda on February 23, 1990. A full evidentiary hearing was
conducted on Wednesday, February 28, 1990, by a Board panel comprised of
Public Chair Dawson, presiding, Employer Representative Thacher E. Turner
and Employee Representative George W. Lambertson. The parties were given
the opportunity at hearing to present documentary and testimonial evidence,
to cross-examine witnesses and to present oral argument. AFSCME called, as
witnesses, Director of Recreation and Public Property Marcel Blouin and
Water Transfer Station Foreman Roy Moses. Complainant's Exhibits marked
for identification as 1 through 14 were admitted. Respondent's Exhibits
marked for identification as 1, 2, 5 through 8 and 11 were admitted into
evidence. Both parties filed posthearing briefs on March 15, 1990. The
portion of the complaint which alleges MPELRL violations by Annalee Z.
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Rosenblatt was withdrawn in the Complainant's brief. Only AFSCME
requested reimbursement of costs. The transcript of the proceedings was
completed on March 16, 1990. The Board deliberated the issues involved
in the matter on April 6, 1990.
ADMISSIONS
The Town admits the following allegations contained in AFSCME's
complaint:
Complainant, Council #93, American Federation of State,
County and Municipal Employees (hereinafter referred to as
AFSCME) having offices and a place of business at One Community
Drive, Augusta, Maine 04330, is a public employee organization
within the meaning of the Municipal Public Employees Labor
Relations Law (MPELRL). [See 26 M.R.S.A. 962(2) (1988)]
Respondent Town of Sanford, et al., is the employer of the
employees of the Sanford Unit, Local 481 of the Town of Sanford
(hereinafter referred to as "Town") having offices and a place
of business at 267 Main Street, Sanford, Maine 04073-3589.
[See 26 M.R.S.A. 962(7) (1988 and Supp. 1989)]
AFSCME is the sole and exclusive bargaining agent of the
Sanford Unit, Local 481 which consists of permanent employees in
the Bureau of Highways and Sanitation excluding the following
classifications of employees who are not eligible for repre-
sentation in the unit:
1.) Director of Bureau of Highways and Sanitation
2.) Assistant Director of Bureau of Highways and Sanitation
3.) Supervisor of garage maintenance
4.) Assistant Supervisor of garage maintenance
5.) Senior Clerk-Typist
6.) Clerk-Typist
7.) Foreman
8.) Park Supervisor
The Collective Bargaining Agreement between the parties is
effective from January 1, 1988 through December 31, 1990.
On or about June 20, 1988 the Town hired Donald Vallee as a
"seasonal parks laborer."
Donald Vallee was regularly scheduled for and normally
worked forty (40) hours per week.
Donald Vallee worked alongside "permanent" parks employees
from time to time and performed similar duties.
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On or about January 20, 1989 the Town terminated the
employment of Donald Vallee. By memorandum from Park Supervisor
Marcel Blouin to Local 481 Union representative Donald Cabana it
was stated that "Don Vallee was laid off as of Friday, January 20."
On or about April 10, 1989 Donald Vallee was rehired by the
Town as a "seasonal parks laborer."
On or about April 25, 1989 the Union filed a grievance on
behalf of Donald Vallee and requested that he receive wages and
benefits commensurate with permanent employment as outlined in
the Collective Bargaining Agreement in effect between the parties.
In a grievance response dated August 25, 1989 Town
Administrator John E. Webb denied permanent employment status
to Donald Vallee.
On October 24, 1989 the Board of Selectmen of the Town unani-
mously upheld the decision of Town Administrator John E. Webb.
On or about September 8, 1989 the position of Laborer II -
Rubbish Truck was posted by the Town.
Donald Vallee signed the posting.
On or about September 22, 1989 the Town terminated the
employment of Donald Vallee.
Donald Vallee was denied a "permanent" position with the
Town which he applied for on or about September 8, 1989.
JURISDICTION
The Board has jurisdiction to hear and determine the issues in this
case and to render a decision and order pursuant to 26 M.R.S.A. 968(5)
(1988).
POSITIONS OF THE PARTIES
AFSCME contends that Vallee was hired on June 20, 1988, that he worked
seven consecutive months, that he was laid off for three months and that he
then worked for five consecutive months. AFSCME contends that Vallee
became a public employee upon having worked six months in his initial
employment with the Town and that the Town's failure to accord Vallee
contractual coverage and its failure to treat him as a permanent employee
in the filling of a Laborer II - Rubbish Truck position constitute
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prohibited acts.
Because the prohibited practice complaint was filed on December 8,
1989, the Town contends that the limitations period contained in 26
M.R.S.A. 968(5)(B) (1988) prevents the Board's consideration of any mat-
ters alleged to constitute prohibited practices which occurred prior to
June 8, 1989. Additionally, the Town contends that where events occurring
within the six months limitations period can be characterized as a prohib-
ited practice only by relying upon events that occurred more than six
months prior to the filing of the charge, those matters occurring prior to
the limitations date cannot be considered and the complaint must be
dismissed.
The Town contends that Vallee was hired as a Seasonal Parks Laborer
on June 20, 1988, that he was kept on in a temporary status until his
employment was terminated January 20, 1989, that he was again hired as a
Seasonal Parks Laborer on April 10, 1989, and that he was discharged on
September 22, 1989, due to both budgetary considerations, and the assump-
tion of work by the School Department--which had previously been performed
by the Parks Division. The Town contends that Vallee was allowed to work
past six months in his initial employ through inadvertence and that Vallee
did not have a reasonable expectation of continued employment. The Town
further contends that Vallee had no contractual right to sign the Laborer
II - Rubbish Truck posting and receive consideration other than as a member
of the general public because he was not a permanent employee. The Town
argues that granting an individual employee's request to have union dues
deducted does not confer or imply unit membership, and further states that
the deduction of dues from Vallee's pay for the January 7, 1989, pay period
was inadvertent. Finally, the Town contends that Annalee Rosenblatt is not
a proper party and that the complaint should be dismissed with regard to
her.
FINDINGS OF FACT
The thirty (30) employee Sanford Bureau of Highways and Sanitation
(also known as Public Works) is comprised of the Divisions of Highway,
Sanitation, Mechanics and Parks (also known as Recreation and Public
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Property). The Parks Division hires approximately forty (40) seasonal
employees. Eight of these are employed during an eight week summer
recreation subseason. Seasonal employees are used in the maintenance of
athletic fields and park areas. The Parks Division also engages some of
its seasonal employees to assist during school vacations in April and
February. As a general rule, in the Parks Division the "season" lasts
"anywhere from mid to late April to September, [or] early October." There
are presently no seasonal positions within the Town Highway Department.
There is no evidence in the record establishing what, if any, proportion of
the seasonal workforce returns from one year to the next. There is no evi-
dence that any Town seasonal employee possesses a reasonable expectation of
continued employment. The pay scale for seasonal employees is separate
from that of other Town employees and is approved annually by the Board of
Selectmen. Returning seasonal employees are paid slightly greater wages.
There is no evidence that any regular employee has been displaced through
the use of seasonal workers by the Town.
Vallee was hired by Blouin in June of 1988 as a Seasonal Parks Laborer.
Blouin is in charge of hiring seasonal employees for the Parks Division.
Vallee's initial wage rate was $4.00/hour.3 That rate remained unchanged
through January of 1989. In August his wage rate was $4.50/hour. The wage
rate for Laborers I at the time Vallee was hired was $6.74/hour, with a six
month increase to the rate of $7.37/hour. After January 1, 1989, Laborers
I earned $7.78/hour. On January 13, 1989, the Town inexplicably deducted
$4.06 from Vallee's wages for dues for the pay period ending January 7th.
The parties' contract specifies that the "Town shall deduct dues from each
paycheck upon receipt of a signed authorization from employees and a cer-
tified statement from the Treasurer of Council No. 93 as to the amount for
dues." Vallee received no benefits other than wages during his employment
as a Seasonal Parks Laborer.4 Blouin's understanding was that Vallee, like
other seasonal employees, would work from the end of school (around
__________________________
3The Change of Pay document establishing Vallee's initial $4.00/hr. pay
rate notes that he is a seasonal employee.
4The Town inadvertently paid Vallee for one day of sick leave.
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June 20th) until approximately Labor Day.
Vallee continued beyond the parks season as a Temporary Parks Laborer.
Blouin was responsible for Vallee's having worked past Labor Day, or the
end of the Parks and Recreation season. Vallee assisted beyond Labor Day
in both athletic field maintenance performed for the School Department and
in grass cutting in the parks. These residual seasonal duties regularly
and normally continue for the Town until late October or early November.
When, in September of 1988, Blouin engaged Vallee to continue with the
Bureau of Recreation and Public Property he informed Vallee that his
employment was temporary. Vallee told Blouin that he had another job to go
to when the work with the Town played out.
In late October or early November of 1988 Blouin spoke with Vallee
again for the purpose of giving him another assignment--to assist the divi-
sion with trash runs, minor ball field maintenance, the closing of
playgrounds and the removal of playground equipment, and the performance of
various other yearly Parks Division activities. This last assignment con-
tinued into January of 1989. The duties performed by Vallee in that
assignment are required year-round. Vallee shoveled snow after storms and
performed lifting duties at the Town Hall because a Parks Division Custo-
dian who normally performed those duties was on light duty with an injured
back. When Vallee left the Town's employ on January 20, 1989, his duties
of monitoring the parks and picking up the garbage fell to the Parks
Laborer who, since September of 1987, had served as Interim Parks Division
Supervisor. The Parks Supervisor at that time was serving at the Board of
Selectmen's request as the Interim Public Works Director. The interim
period during which a job search was conducted for a Parks Supervisor
spanned September 1987 to September 1989. During this period there were
two Interim Supervisors. When the Parks Supervisor was selected, the
Interim Supervisor stepped back into the rank and file.
Blouin never intended to offer Vallee a permanent job with the Town.
Although Blouin did not indicate the length of the continuation of Vallee's
employment he did indicate it would not be permanent. As early as mid
October Blouin had told Vallee he needed to look for other employment.
The decision to terminate Vallee was made, when, in January, Blouin
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realized that Vallee had worked more than six months. Vallee was ter-
minated at that time because six months "seemed to be a magical number that
people had come up with in regards to temporary employees receiving full-
time status." In an April 27, 1988, memorandum of decision resolving the
longevity of Town employee Calvin Haskell, who was originally hired as
a temporary employee on January 15, 1980, and made a regular employee
March 1, 1980, the Town concluded Haskel's anniversary date to be
January 15, the date of his original hire. In that memorandum of decision,
which was addressed to Roy Moses, Annalee Rosenblatt stated her opinion
concerning the employment status of temporary employees, as follows:
When an employee has unbroken service, no matter what the
status of the employee is at the time of hire, once the employee
has worked 6 months for the Town s/he automatically becomes a
regular employee subject to the rights of the contract.
In offer of settlement of a controversy respecting the applicability of the
"6 months and over pay scale," the Town, on August 9, 1988, offered "[i]n
an attempt to resolve this matter and with precedent to how a future
situation would be handled," to afford to Dwight Pierpont, (who was "hired
as a temporary employee on September 14, 1987" and "given a regular full
time position as a result of signing on a posting,") over-six-months-for-
pay status on March 14, 1988, and probationary status until August 22,
1988. There is no indication of whether Pierpont's signing of the posting
secured for him the more favorable internal promotional consideration at
issue in this case.
Blouin had heard from Moses and others that after an employee had
worked for the Town of Sanford for more than six months such an employee
"could be considered a permanent or regular employee." Blouin's handwrit-
ten notes of a January 19, 1989, meeting with Don Cabana and Roy Moses
indicate that Blouin possessed the opinion that Vallee should be terminated
because "he meets no requirements such as a license." When asked, Blouin
testified that he intended by that assessment to indicate that "if the
[Town could not] at that time of year put [employees] out on a vehicle so
that they're able to drive it, then there really is no--there's very little
for them to do if they can't work independently."
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Vallee was notified on January 13, 1989, that he was to be laid off as
of January 20th. On January 19, 1989, AFSCME, through Moses, filed a
grievance respecting Vallee seeking permanent status, contractual wages and
benefits. Vallee was laid off on Friday, January 20, 1989. The grievance
was denied.
In February of 1989 the Town through Blouin solicited from Vallee, as
well as its other previous seasonal employees, an indication of desire
respecting work during the forthcoming season. The pertinent portions of
that letter state:
It's that time of year when we need to start thinking of
summer employment.
If you are interested in returning for employment with the
Parks Department for the 1989 season please respond before
March 17th.
Just tear off the bottom section and return it to the
office.
If you have any questions please feel free to contact me
at the above number.
Vallee signed the form and checked the portion which indicates "[y]es,
I would like to return for employment with the Parks Dept. for the 1989
season." On his return in April of 1989, Vallee worked in the same capa-
city as he had the previous summer, maintaining athletic fields and parks,
and mowing grass.5 Vallee was returned in one of two extended positions,
which are used to open up ballfields, playgrounds and to maintain all of
the school department athletic facilities. On April 25, 1989, AFSCME filed
a grievance on Vallee's behalf seeking the contractual wages and benefits
accorded permanent employees. The grievance was denied at every step and
_________________________
5The non-bargaining unit employee Change of Pay Request initiated by
the Town on Vallee's hire on April 10, 1989, indicates that when Vallee was
hired he was considered by the Town to be a "Temporary Seasonal" "Parks
Laborer," who had been "recall[ed] after layoff."
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was finally denied by the Town's Selectmen on October 24, 1989.6 AFSCME
did not submit the matter to arbitration.7
On September 8, 1989, the Town posted a position vacancy notice in
recruitment for a Laborer II - Rubbish Truck position.8 The duties of that
position primarily encompass picking up trash at the back of a rubbish
truck. The position is one for which no training is required and for which
Vallee was qualified. Vallee's previous employment with the Town had been
satisfactory. Although Vallee signed the posting in application for the
position during the period reserved for application by existing Town
employees he was not considered for the position by the Town which con-
sidered him to be excluded from the existing collective bargaining unit,
and not entitled to internal promotional consideration.
The parties' contract specifies in Article 8 - Permanent Vacancies
that a "seniority list shall be established listing all employees covered
by this Agreement with the employee with the greatest seniority listed
first. Seniority shall be based on the employees' most recent date of
hire." Article 8 also provides that "[w]here qualifications and abilities
are substantially equal, seniority shall prevail in matters pertaining to
_________________________
6The Town Administrator's August 25, 1989, response to Vallee's
grievance states that Vallee was "hired as a seasonal employee for the
Parks Department, effective June 20, 1988. The grievance response goes on
to state that "Vallee expressed to Mr. Blouin . . . that he had another
position and requested that he be kept on with the Town until the other job
began. There was a temporary shortage in the Parks Department at that time
and Mr. Blouin agreed to allow Mr. Vallee to continue to work." Finally,
the grievance response states that "Vallee was rehired as a seasonal worker
on April 10, 1989.
7The parties' agreement's Grievance Procedures Article states in sub-
section c(2) that "any grievance not initiated or processed in accordance
with the procedures herein, shall be deemed waived." Subsection c(3)
states that "election to submit a grievance to arbitration shall automati-
cally be a waiver of all other remedies or forums which otherwise could be
available."
8The vacant Laborer II - Rubbish Truck position was posted September 8,
1989. The posting was assigned a Thursday, September, 14, 1989, deadline.
The posting said that "[a]pplicants should have reliable transportation and
a dependable work record."
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promotion . . . [I]f qualified . . . in-house applicants will be given the
first opportunity to fill permanent vacancies." Article 9 - Posting of the
parties' agreement specifies that "[b]argaining unit job openings for regu-
lar positions, shall be posted on the Town Hall bulletin board for a period
of seven (7) calendar days . . . [a]t the end of this period, if the job
has not been filled, it may be the [sic] filled by at [sic] the discretion
of the Town Administrator or his/her designee."
The Town's personnel code, which is applicable to non-unit employees,
gives no preference in hiring to existing employees. The internal posting
closed on September 14, 1989. Vallee applied but was not selected when
application for the position was opened to the general public. There is no
record evidence that anyone was ever hired for the Laborer II - Rubbish
Truck position.
Possession of a driver's license is something which, if required of a
particular job classification, is set forth as a requirement by way of job
specification. For those jobs for which possession of a Class I or II
license is not a requirement, such as the Laborer II - Rubbish Truck posi-
tion for which Vallee unsuccessfully applied, only reliable transportation
is required. All permanent Town employees, save one, presently possess a
driver's license. The Town considers possession of a driver's license
helpful in any bid for a permanent town job. A notation by Blouin in
response to the grievance filed respecting Vallee's termination in January
of 1989, which indicates "Vallee should be terminated--He meets no
requirements such as a license etc.," was made well in advance of the
Town's posting and decision respecting his suitability for the position
of Laborer II - Rubbish Truck.
Vallee was terminated on September 22, 1989, "because [the Parks Divi-
sion was] running short of funds [in the area of part time salary line]
. . . and the school department had pretty much taken over a larger role
in maintaining athletic fields that they were using."
DISCUSSION
After careful consideration of the evidence in this matter in light of
the arguments presented by the parties we conclude that the complained-of
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Town actions do not constitute violations of any of the prohibited practice
provisions set forth in 26 M.R.S.A. 964(l)(C), (D) or (E) (1988). As is
more specifically set forth below we conclude that the only arguably
actionable circumstances are those occurring after June 8, 1989. We do
find that but for the limitations period the Town would have violated 26
M.R.S.A. 964(l)(A) and (B) (1988) when it terminated Vallee on
January 20, 1989, in an attempt to prevent him from becoming a permanent or
public employee. We find no other Town actions violative of those portions
of the MPELRL. Finally, we conclude that AFSCME has failed to prove that
the Town has violated the MPELRL either by failing to accord Vallee inter-
nal promotional consideration in its recruitment for a Laborer II - Rubbish
Truck vacancy or by discharging him on September 22, 1989.
Initially it must be observed that should we find Vallee to be a
public employee within the meaning of the MPELRL, such a finding would not
necessarily result in Vallee's placement in a year-round full-time
position.9 Within the Board's jurisdiction there are many units containing
regularly scheduled part-time employees who work less than half-time, see,
e.g., Town of Berwick and Teamsters Local Union No. 48, No. 80-A-05, 2 NPER
20-11035 (Me.L.R.B. July 24, 1980), and many units which include employees
who regularly do not work during as many as three months of the year. See,
e.g., Brunswick Association of Paraprofessionals and Non-Teaching Personnel
and Brunswick Superintending School Committee, No. 75-A-03 (Me.L.R.B.
Oct. 10, 1975). We shall first determine what effect should be accorded to
events alleged which occurred more than six months prior to the filing of
the complaint.
Both of the refusals to treat Vallee as a unit employee, complained of
in AFSCME's January 19, 1989, and April 25, 1989, grievances, fall well
outside the six month statute of limitations period set forth in 26
M.R.S.A. 968(5)(B) (1988). The statutory limitations period is not
tolled by the filing or prosecution of grievances pursuant to contractual
__________________________
9It is within the Board's power to order such a remedy where it appears
that the equivalent of year-round full-time employment has been frac-
tionalized to avoid the coverages of the MPELRL.
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grievance-arbitration procedures. Accordingly, those portions of the
complaint relating to the Town's refusals to treat Vallee as a unit
employee prior to June 8, 1989, as well as those portions of the complaint
concerning the Town's processing of grievances after June 8 relating to
such refusals, must be dismissed. Our dismissal of those portions of the
complaint alleging failure prior to June 8, 1989, to accord Vallee contrac-
tual coverage do not, however, prevent our consideration of periods of
Vallee's employment which predated June 8, in determining whether or when
Vallee was or became a public employee of the Town of Sanford within the
meaning of the MPELRL. Moreover, as we stated in Council 74, AFSCME v.
City of Bangor, No. 80-41, slip op. at 6, 2 NPER 20-11042 (Me.L.R.B.
Sept. 24, 1980):
It bears noting, however, that all evidence regarding the
past events is admissible for purposes of providing background
information. The law regarding the admissibility of past events
is well-settled: where occurrences within the six-month limita-
tions period in and of themselves may constitute prohibited
practices, the "past events may be utilized to shed light on the
true character of matters occurring within the limitations
period." Machinists Local Lodge No. 1424 v. NLRB, 362 U.S. 411,
416 (1960). Since some occurrences within the six-month period
may in and of themselves constitute prohibited practice . . .
evidence regarding events occurring outside the limitations
period is admissible. Thus, while we have dismissed the allega-
tions that the past events constitute prohibited practices, we
will consider whether these past events shed light on the pro-
hibited practices alleged to have occurred within the limita-
tions period.
We now turn to the question of whether Vallee is excluded from the phrase
"public employee" by the definitional provisions of 26 M.R.S.A. 962(6)(F) or
(G) (1988). [Citation corrected during indexing of case.]
It is not in dispute that Vallee worked for seven consecutive months
in his initial employment or that within the consecutive fifteen month
period commencing on June 20, 1988, Vallee worked approximately twelve and
one-half months for the Town. He is, therefore, not appropriately excluded
from the MPELRL's coverages pursuant to 26 M.R.S.A. 962(6)(F) (1988).
[Citation corrected during indexing of case.]
Having so found, it is necessary to determine whether statutory exclusion
is properly predicated on either "temporary" or "seasonal" status pursuant
to the provisions of 26 M.R.S.A. 962(6)(G) (1988).
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The record amply demonstrates that Vallee as well as dozens of other
employees are regularly hired as Seasonal Laborers by the Town. AFSCME
does not dispute the Town's contention that its hirings of Vallee on
June 20, 1988, and April 10, 1989, were to the position of Seasonal Parks
Laborer. AFSCME has not alleged or proven that the Town's employment of
seasonal or temporary workers has resulted in a decrease in the total
number of employees within the bargaining unit and has not otherwise
demonstrated that the Town has used the status labels of "temporary" or
"seasonal" in an effort to circumvent the coverages of the MPELRL.
Finally, AFSCME has not alleged or proven that Vallee was not extended
beyond his initial seasonal employment in an actual temporary status with
the Town.10 In assessing whether either the seasonal or temporary employee
exclusionary designations are applicable we find it appropriate to apply
the objective standard of determining, in the totality of the circum-
stances, whether the employee involved may be said to have had a reasonable
expectation of continued employment. We conclude based on the record as
a whole that the circumstances surrounding Vallee's employment do not
establish a reasonable expectation of continued employment in either his
seasonal or his temporary employment with the Town. Since Vallee served
in seasonal, then temporary and then seasonal employment with the Town, he
was not a public employee and had no right to consideration in accordance
with the parties' contract's internal promotional provisions.
The keystone of AFSCME's complaint appears to be that regardless
of the applicability of the exclusionary provisions in 26 M.R.S.A.
962(6)(G) (1988), any employee who has been employed for six months or
more is a public employee merely by satisfaction of 26 M.R.S.A. 962(6)(F)
(1988). We do not agree. We are, with an eye toward the stated purposes
of the MPELRL, see 26 M.R.S.A. 961 (1988), required to interpret the
MPELRL in such a manner as will give meaning to all of its provisions.
________________________
1OVallee was not present at hearing, resulting in much of the Town's
material defensive evidence being uncontroverted. We conclude that
Vallee's absence supports a reasonable inference that, if present, Vallee's
testimony would not have supported AFSCME's contentions regarding his
reasonable expectation of continued employment.
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We find that to accord the interpretation of the MPELRL urged by AFSCME in
this case would result in the improper automatic inclusion of truly
"seasonal" or "temporary" employees in appropriate bargaining units upon
their attainment of six months' employment. We are convinced that such a
result would be expressly contrary to the MPELRL. By use of the disjunc-
tive conjunction "or" the MPELRL separately and distinctly excludes from
statutory coverage each of the employee status groups mentioned in 26
M.R.S.A. 962(6)(G) (1988) [citation corrected during indexing of case],
in addition to employees who have achieved less than six months of employment.
Accordingly, we will not ordinarily find a truly seasonal, temporary or
on-call employee whose tenure with a public employer exceeds six months to be
a public employee within the meaning of the MPELRL solely on the basis of the
completion of six months' employment.11 On the other hand, we have in
appropriate circumstances determined that otherwise covered employees who
have not accumulated six months of employment because of a public employer's
prohibited practices are not appropriately excluded from the MPELRL's coverage.
See Council 74, AFSCME v. City of Bangor, No. 80-41, slip op. at 7, 2 NPER
20-11042 (Me.L.R.B. Sept. 24, 1980).
Although previously found to be outside the statutory limitations
period we are, in the interest of clarification, compelled to comment upon
the events surrounding the Town's January 20, 1989, discharge of Vallee.
We have construed AFSCME's complaint to allege that the Town discharged
Vallee on January 20, 1989, to prevent him from becoming a unit and/or
union member in violation of 26 M.R.S.A. 964(1)(B) (1988), and that the
Town's action taken on the basis of such violative motivation interfered
with, restrained or coerced employees in the exercise of guaranteed rights
in violation of 26 M.R.S.A. 964(1)(A) (1988). Evidence elicited by the
Town's attorney establishes that the Town terminated Vallee's temporary
employment immediately upon discovering that he had worked longer than six
months, because the six-month figure was considered to be the magic event
upon which all employees, regardless of their employment status, are
______________________
11To the extent that earlier cases such as Waterville Teachers Asso-
ciation v. Waterville Board of Education, No. 75-22, slip op. at 4
(Me.L.R.B. June 26, 1975) indicate otherwise, they are, hereby, expressly
overruled.
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transmogrified into public or permanent employees.
We have often discussed, as follows, the well-established test which
we employ, with the Law Court's approval, see MSEA v. State Development
Office, 499 A.2d 165, 169 (Me. 1985), in considering complaints of viola-
tion of the identical provisions of 26 M.R.S.A. 964(1)(A) and 979-C
(1)(A) (1988), as follows:
A finding of interference, restraint or coercion does not turn
on the employer's motive or on whether the coercion succeeded or
failed, however, but is based on "whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act."
Alfred Hendsbee v. Department of Public Safety, No. 89-11, slip op. at 24-
25 (Me.L.R.B. June 16, 1990); Oxford Hills Teachers Association v. MSAD No.
17, No. 88-13, slip op. at 22 (Me.L.R.B. June 16, 1988); Kittery Employees
Association v. Strahl, No. 86-16, slip op. at 7, 9 NPER ME-18002 (Me.L.R.B.
Aug. 6. 1986).
In Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01,
slip op. at 10-11, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986), we discussed
the standard applicable to the assessment of claims of violations of 26
M.R.S.A. 964(1)(B) (1988). as follows:
Since its initial adoption in Holmes v. Town of Old
Orchard [Beach], MLRB No. 82-14 (Sept. 27, 1982); aff'd sub nom.
Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's
Ass'n., York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983), we
have consistently applied the National Labor Relations Board's
(NLRB) "Wright Line" test in the "dual motive" disciplinary con-
text. Ritchie v. Town of Hampden, MLRB No. 83-15 (July 18,
1983), aff'd sub nom. Town of Hampden v. Maine Labor Relations
Board, Penobscot Super. Ct., Docket No. CV-82-407 (Sept. 14,
1984). Our use of the "Wright Line" [test] in "dual motive"
cases arising under the parallel section of the State Employees
Labor Relations Act, 26 M.R.S.A. 979-C(1)(B), has been approved
by the Supreme Judicial Court. Maine State Employees Ass'n. v.
State Development Office, 499 A.2d 165, 169-169 (Me. 1985).[12]
Subsequent to the Board's adoption thereof, the Supreme Court of
the United States affirmed the NLRB's use of the "Wright Line"
test. Mr. Justice White, writing for a unanimous Court, has
outlined the "Wright Line" test as follows:
________________________
12The provisions of the State Act and Municipal Law are identical in
this regard. See 26 M.R.S.A. 964(1)(B) and 979-C(1)(B) (1988).
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The Board held that the General Counsel, of course, had
the burden of proving that the employee's conduct pro-
tected by Section 7 was a substantial or a motivating
factor in the discharge. Even if this was the case,
and the employer failed to rebut it, the employee could
avoid being held in violation of Sections 8(a)(1) and
8(a)(3) by proving by a preponderance of the evidence
that the discharge rested on the employee's unprotected
conduct as well and that the employee would have lost
his job in any event. It thus became clear, if it was
not clear before, that proof that the discharge would
have occurred in any event and for valid reasons
amounted to an affirmative defense on which the
employer carried the burden of proof by a preponderance
of the evidence.
NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103
S.Ct. 2469, 2473, 76 L.Ed.2d 667 (1983) (footnotes omitted),
cited and adopted by the Board, Ross v. Portland School
Committee, MLRB No. 83-04, at 19 (Aug. 29, 1983). Since there is
no General Counsel in practice before the Board, the complainant
must be substituted for the General Counsel in the above descrip-
tion.
But for the statutory limitations period we would conclude that the
Town did not carry the burden of establishing, in response to a prima facie
showing, that Vallee would have been terminated in any event due to the
temporary nature of his employment or for any other acceptable reason.
Moreover, but for the limitations period we would find an inherently
chilling effect present in the Town's actions in this regard, at least with
respect to Vallee. Accordingly, but for the operation of the limitations
provisions of the MPELRL we would find the Town's actions in this regard
constitute violations of 26 M.R.S.A. 964(1)(A) and (B) (1988). Employees
may not be discharged from even temporary employment solely for the purpose
of avoiding the coverage of the MPELRL.
Were it not for the effect of the limitations period it would be
within our make-whole remedial power to place Vallee in the position he
would have been in absent the Town's violation; however, there is an insuf-
ficient factual basis for doing so even were we so empowered. AFSCME did
not allege or establish that anyone was hired to perform the balance of
Vallee's temporary work. It was established that Vallee's work was assumed
as additional duty by others within the Parks Department and we find that
it is reasonable to assume that the temporary work from which Vallee was
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discharged would have continued at least until those Parks Division
employees no longer performed the additional duties occasioned them by
Vallee's termination. There is, however, no evidence of the date upon
which those additional duties ceased to be performed by existing Parks
Division employees. Since there is no ascertainable date which might have
been used to fix what would otherwise have been the termination date of
Vallee's temporary employment, we would be unable to make a proper non-
speculative award of back pay, or to order reinstatement even if we were
not prevented from doing so by the statutory limitations period.
We have attempted, in the absence of specific indication by AFSCME, to
ascertain whether the evidence tendered supports AFSCME's allegation of
violation of 26 M.R.S.A. 964(1)(C) (1988). We conclude upon considera-
tion that it does not. We have repeatedly noted that that section of the
MPELRL "is directed at the evil of too much financial or other support of,
encouraging the formation of, or actually participating in, the affairs of
the union and thereby potentially dominating it." Teamsters Local Union
No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 13, 9 NPER
ME-17008 (Me.L.R.B. Jan. 24, 1986); Teamsters Local Union No. 48 v.
Eastport School Department, No. 85-18, slip op. at 4, 8 NPER ME-17003
(Me.L.R.B. Oct. 10, 1985); Teamsters Local Union No. 48 v. Town of Kittery,
No. 84-25, slip op. at 4, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984).
The Town neither participated in nor otherwise supported the activities of
AFSCME; therefore, the Town did not violate 26 M.R.S.A. 964(1)(C) (1988).
Likewise, we find no refusal to bargain on the part of the Town in viola-
tion of 26 M.R.S.A. 964(1)(E) (1988). Vallee was never a public employee
within the meaning given that phrase by the MPELRL. The Town has not,
therefore, unilaterally changed or refused to bargain in good faith con-
cerning the wages, hours or terms and conditions of employment of public
employees.
AFSCME did not pursue during the evidentiary hearing or in its post-
hearing brief its previous allegations that the Town violated various
provisions of the MPELRL when it terminated Vallee on September 22, 1989.
Those allegations are therefore deemed withdrawn. See Orono Firefighters
Association v. Town of Orono, No. 89-18, slip op. at 12 (Me.L.R.B.
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Sept. 1, 1989); Westbrook Police Unit v. City of Westbrook, No. 81-53, slip
op. at 5, 4 NPER 20-12033 (Me.L.R.B. Aug. 6, 1981); Coulombe v. City of
South Portland, No. 86-11, slip op. at 9, 9 NPER ME-18008 (Me.L.R.B.
Dec. 29, 1986). In any event, the evidence offered by the Town that Vallee
was terminated on September 22, 1989, due to a funding shortfall and the
transfer of certain duties to the School Department is unrebutted.
We do not find an award of attorney's fees and costs warranted in this
case.
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. 968(5)(C) (1988), it is ORDERED:
That the December 8, 1989, complaint of Council 93, AFSCME
and Sanford Unit, Local 481, be and hereby is DISMISSED.
Dated at Augusta, Maine, this 15th day of June, 1990.
MAINE LABOR RELATIONS BOARD
/s/_________________________
The parties are advised Peter T. Dawson,
of their right pursuant Public Chair
to 26 M.R.S.A. 968(4)
(1988) to seek review of
this decision and order
by the Superior Court by /s/_________________________
filing a complaint in Thacher E. Turner,
accordance with Rule 80C Employer Representative
of the Maine Rules of
Civil Procedure within
fifteen (15) days of the
date of this decision. /s/_________________________
George W. Lambertson,
Employee Representative
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