STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 90-14 Issued: October 18, 1990 ________________________________________________ ) COUNCIL 93, AFSCME; LOCAL 481 (LABOR AND ) TRADES); LOCAL 481-07 (SUPERVISORS); and LOCAL ) 1373 (CITY EMPLOYEES BENEFIT ASSOCIATION), ) ) Complainants, ) ) v. ) DECISION AND ORDER ) CITY OF PORTLAND, CITY MANAGER ROBERT GANLEY, ) MAYOR ESTHER CLENOTT and PORTLAND CITY COUNCIL, ) ) Respondents. ) ________________________________________________) On March 2, 1990, Council 93, American Federation of State, County and Municipal Employees ("AFSCME" or "AFSCME Council 93"), and three of its locals -- Local 481 (Labor and Trades) ("Local 481 (L/T)"), Local 481-07 (Supervisors) ("Local 481-07") and Local 1373 (CEBA) ("Local 1373") filed a prohibited prac- tice complaint with the Maine Labor Relations Board ("Board") alleging that the City of Portland and its representatives and agents ("City") had violated the Municipal Public Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 964(1)(C) and (E) and 965(1) and (1)(C) (1988).1 More specifically, the complainants allege that by communicating directly with members of the three units regarding a subject that had been placed on the bargaining table for nego- tiation, the employer circumvented the collective bargaining process, refused to bargain collectively, and interfered with administration of AFSCME and its locals. The City denies that its actions are violations of the MPELRL; as affirmative defenses it asserts that communication with its employees was within its free speech rights and that complainants have waived their right to claim __________________________ 1At the evidentiary hearing, counsel for complainants withdrew the complaint with respect to Mayor Esther Clenott and amended the complaint to accurately reflect allegations against the other respondents. The complaint as origi- nally filed alleged violation of sections 964(C) and (E) rather than 964(1)(C) and (1)(E). -1- a violation. On April 11, 1990, Board Alternate Chair Jessie B. Gunther convened a pre- hearing conference in this matter. Her April 30, 1990 Prehearing Conference Memorandum and Order is incorporated in and made a part of this decision and order. Alternate Chair Gunther presided at the evidentiary hearing, accompanied by Alternate Employer Representative Carroll R. McGary and Employee Representative George W. Lambertson. Hearings were held on May 4 and July 3, 1990. Stephen P. Sunenblick, Esquire, represented the four complainants, and Linda D. McGill, Esquire, represented the respondents. The parties were given full opportunity to examine and cross-examine witnesses, introduce documentary evidence, and make oral argument. The parties filed post-hearing briefs, the last of which was received on August 30, 1990; the Board deliberated this matter on Septem- ber 5, 1990. JURISDICTION Complainant AFSCME is the bargaining agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for the Portland units of Local 481 (L/T), Local 481-07 and Local 1373. Complainants Local 481 (L/T), Local 481-07 and Local 1373 are public employee organizations within the meaning of 26 M.R.S.A. 968(5) (1988). The City is the public employer of the employees in the three units, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1989). The jurisdic- tion of the Board to hear this case and to render a decision and order lies in 26 M.R.S.A. 968(5) (1988). FINDINGS OF FACT Upon review of the entire record, including oral testimony, documentary evi- dence and admissions made in the answer to the complaint (which are quoted ver- batim except where otherwise noted), the Board finds: 1. The City employees approximately 1,150 employees, roughly 1,000 of whom are bargaining unit members; there are nine City bargaining units. 2. [Admission in answer to complaint] AFSCME is the sole and exclusive bargaining agent of the Portland Units [of] Local 481 [(L/T)], Local 481-07 and -2- Local 1373. [Remainder of admission omitted.] 3. The City has been discussing the issue of alternatives to the Maine State Retirement System ("M.S.R.S.") with the bargaining units since at least 1987. In 1987, the City unsuccessfully attempted to get legislation passed to permit participating local districts (that is, municipalities and other entities that participate in the M.S.R.S.) to remain in the M.S.R.S. while offering their employees alternatives to it. In discussions with the deputy city manager shortly thereafter, several of the union presidents made known to the city their continuing opposition to pension alternatives. In addition, the 1988-90 collective bargaining agreements between the City and the three complaining locals all required the unions to agree to open pension negotiations if the City requested to implement its option to withdraw from the M.S.R.S. during the term of those agreements. 4. In March of 1989, City Manager Robert Ganley requested that newly hired Deputy City Manager Mark Green assemble a retirement task force; the purpose of the task force was "to explore the feasibility of developing an alternative pen- sion plan." Then-Labor Relations Administrator (chief labor negotiator for the City) Roger Kelley asked the nine unions to participate. The nine-union coali- tion met and voted against participation as a group;2 Kelley then approached the presidents of at least two of the unions, indicating that the task force would be going ahead with or without them and suggesting that they should participate to protect their interests. Jim Pritchard, president of Local 481 and a member of the negotiating team for AFSCME, was asked and he refused; the president of Local 1373, Kevin Carroll, decided to participate. Kelley also asked AFSCME itself, the bargaining agent for three of the nine unions, to participate in the task force; AFSCME refused.3 _________________________ 2Jim Pritchard, president of Local 481; Joe Esposito, president/chair of the Supervisors' unit of Local 481; and Charlie Fairbrother, president/chair of the Labor and Trades unit of Local 481, all opposed any participation in the task force. 3Roger Kelley testified, without the benefit of hearing other testimony to refresh his recollection, that he had had nothing to do with the task force prior to his departure from City employment. Three witnesses, including Deputy City Manager Mark Green, testified that it was Kelley who approached the unions to get their participation on the task force. The Board credits their testi- mony, and not the testimony of Mr. Kelley. -3- 5. The task force as finally constituted in May of 1989 had 14 members, including presidents of four of the nine unions: Local 740, IAFF (which represents the firefighters' unit); unions for the two police units; and AFSCME Local 1373. The task force membership also included Deputy City Manager Mark Green and Gloria Thomas, who is director of human resources for the City and is the labor relations administrator's supervisor. Prior to 1984, she herself was the labor relations administrator. 6. In July of 1989, the task force developed a set of goals and objectives, and a subcommittee was formed to draft a request for proposals ("RFP") for con- sulting services. Deputy City Manager Mark Green, Local 1373 President Kevin Carroll, and firefighters' union President Dennis Morse were members of the sub- committee. As drafted by Green and approved by the other subcommittee members, the RFP indicated that consulting services were being sought "to review the City's current employee pension plan and to recommend potential alternatives"; to "review the City's options for alternative pension plans and recommend a plan that meets [the City's] needs." 7. In October, Roger Kelley left his position as labor relations admini- strator, and Patricia Peightal was hired to fill the vacancy. 8. The scope of work in the RFP included the task of estimating the number of employees that might be interested in an alternative pension plan, "based on the consultant's past experience and upon the benefit/loss individual employees would garner from a recommended pension alternative." The task force subcommit- tee interviewed three consultants who responded to the RFP, which had been sent out in October; two of those consultants, including A. Foster Higgins & Co., Inc. ("Foster Higgins"), suggested that including an employee survey in the pen- sion study would be beneficial. 9. The City selected Foster Higgins upon the recommendation of the task force subcommittee. On December 18th, the task force subcommittee met with Foster Higgins in Boston to review the goals and objectives and to ensure that they would be accurately reflected in the final contract with the consultant. On December 21st Foster Higgins sent a letter to Mark Green regarding the final task force goals and objectives, the scope of services, and a timetable for the study. The scope of services, eventually appended to the consulting contract, required the consultant to "evaluate [the] probability of employees electing -4- participation in the alternative plan." It included an employee survey, which the task force had agreed would be conducted. In this connection, the scope of services stated that the consultant would "[p]rovide the City with a question- naire and a list of employees to poll. The City will conduct the poll, tabulate the results and send a report to Foster Higgins." 10. [Admission in answer to complaint] On or about December 19, 1989 the parties entered into negotiations for successor Agreements (Local 481 [(L/T)] and Local 481-07). 11. In late December or early January of 1990, Patricia Peightal drafted pension proposals for labor negotiations with the three AFSCME locals, in consultation with her supervisor, Gloria Thomas. 12. [Admission in answer to complaint] On or about January 19, 1990 the City made the following proposal to amend the Pension and Retirement Article of the Agreement. (Local 481 [(L/T)]) This identical proposal was made to Local 481-07 on February 8, 1990 and [to] Local 1373 on February 15, 1990: 17.3 The City reserves the right to implement a pension as an alternative to M.S.R.S. during the term of this Agreement. In the event of implementation of an alternative pension plan, employees hired after implementation of the new plan may participate in either M.S.R.S. or the new plan. Current employees will have the option of participating prospectively in the new plan. 13. On January 23, 1990, Mark Green met with Claude Perrier, executive director of the M.S.R.S. By letter dated January 18, 1990, Green had explained to Perrier the purpose of the upcoming meeting: "to discuss the project the City is undertaking to develop an alternative pension system." Since current law prohibits the City from remaining in M.S.R.S. and offering its employees an alternative, legislative action would be necessary for the City to offer such an alternative. 14. [Admission in answer to complaint] On or about January 25, 1990 the parties entered into negotiations for a successor Agreement for Local 1373. 15. On or about February 22nd, an employee survey that had been drafted by Foster Higgins was given to the full task force for review. Minor technical changes were suggested. No one on the task force objected to the survey being sent to employees as drafted, and no one sought AFSCME's consent to send the -5- survey to members of its three bargaining units. At the February 22nd meeting, task force members also decided to send employees a letter letting them know that the survey would be going out and encouraging recipients to fill it out and return it. 16. Sometime in February, the city manager had a budget meeting with the nine union presidents; he invited them to task force meetings and asked Mark Green to begin sending them task force information. Thereafter, Charles Fair- brother, then-president/chair of Local 481 (L/T), and Joe Esposito, president/ chair of Local 481-07, each attended a couple of meetings. 17. [Admission in answer to complaint] On or about February 22, 1990 AFSCME representatives met with City Manager Robert Ganley and expressed AFSCME's con- cern with establishing an alternate pension plan. [It is unclear whether this meeting is the same as the meeting referred to in the preceding paragraph.] 18. On February 27th or 28th, Jim Pritchard, the president of Local 481 and also an officer of AFSCME Council 93, was notified by mail that an employee sur- vey would be going out shortly. On February 28th or March lst, after reviewing the survey, he contacted the labor relations administrator, Patricia Peightal, to see if it was being sent to members of AFSCME units. When she checked and told him that it was, he objected. She suggested they both contact Richard Taylor, AFSCME's chief negotiator, which they did. Peightal told Taylor she would send him a copy of the survey and offered to discuss it with him once he had had a chance to read it and talk to Pritchard. Peightal also notified Gloria Thomas and Mark Green of Pritchard's opposition. Thomas passed the information on to corporation counsel and the city manager. In Peightal's letter to Taylor that accompanied the survey, she offered to meet with him. 19. [Admission in answer to complaint] On or about March 2, 1990 the City attached correspondence to the employees [sic] paychecks of the three AFSCME Units stating in part: [The goals of the Task Force are as follows:] 1.) Develop a pension plan that would provide benefits to employees that may not spend their entire career with the City. 2.) Develop a pension plan with a vesting schedule of less than ten years. -6- 3.) Design the plan as an alternative to Maine State Retirement, not as a replacement for it. 4.) The plan will be designed so that employees will have a choice between the alternative plan and Maine State Retirement. 5.) The plan will be portable to private employment. 6.) The plan will include survivor and disability benefits. The Task Force has spent about nine months learning about pension plans. In late December, a pension consultant (Foster-Higgins, Inc.) was hired to help the Task Force develop two or three alternative plans. As part of their work for the City, a survey has been developed to get input from employees on their needs and expectations for a pension plan. The surveys will go to a representative group of about 150 employees. These employees were selected by Foster-Higgins because they represent a good cross-section of the entire City work force. This survey will be mailed directly to the homes of the 150 employees on Friday, March 2. If you receive one of these surveys, please take a few minutes to fill it out. The survey is anonymous and the results will help the Task Force design a plan that will best meet the needs of our employees. The consultant's survey will be part of the final report for the Pension Task Force. Assuming the Task Force is successful in designing an alternative pension plan, the new plan could be in place before the end of 1991. 20. The first paragraph of the letter attached to the paychecks stated: Approximately eight months ago, a Task Force was appointed to explore the feasibility of developing an alternative pension plan. The Task Force is made up of representatives from both management and labor. The goals of the Task Force are as follows: Listed at the bottom were the names of the 14 task force members. 21. On March 2nd, Taylor called Peightal back and objected to the survey. He did not ask to meet with her. 22. No one who was aware of the union objections offered to stop or delay the mailing of the survey. Over the objections of Pritchard and Taylor, the survey was sent to 145 employees, including 21 employees in the Labor and Trades unit (Local 481 (L/T)), 3 employees in the Supervisors' unit (Local 481-07) and 49 employees in the CEBA unit (Local 1373). -7- 23. The survey to employees contained the following: About the Survey This is the pension benefit survey you were told about by Robert Ganley in his recent memo. As indicated, The City of Portland is studying the Maine State Retirement System and an alternative plan. That includes hearing directly from you about your perceptions of the pension plan, how effectively these benefits are communicated, and other key benefit issues. This survey offers an opportunity to contribute your ideas and opinions about your pension benefits. Be assured that your responses are completely confidential so please give your honest opinion. To guarantee anonymity, you are asked not to sign your name. You should have the following for your use: . The questionaire [sic] . A return envelope addressed to Foster Higgins Please conmplete your questionaire [sic], seal it in the envelope and mail it no later than March 5, 1990, so your opinions can be included in the overall survey results. A summary of the survey results will be shared with employees in the future. Your help is very important to the success of this survey and will be greatly appreciated. We urge you to take the time to complete the questionaire [sic] and be a part of this important undertaking. Thank you very much for your cooperation. Sincerely, Daniel W. Sherman Managing Consultant YOUR CURRENT BENENFITS [SIC] PROGRAM 1. In this section we would like to find out what you think about several general aspects of the employee benefits program at The City of Portland. -8- Circle one number for each item Answer key 1 Definitely Yes 2 Probably Yes 3 Maybe 4 Probably Not 5 Definitely Not 6 Don't Know Does the overall retirement benefits program meet your personal needs? 1 2 3 4 5 6 Does The City of Portland's pension plan compare favorably with pension plans offered by other employers in your geographic area? 1 2 3 4 5 6 Does The City of Portland give you enough information about your pension benefits? 1 2 3 4 5 6 Is the pension benefits information The City of Portland gives you easy to understand? 1 2 3 4 5 6 Do you have an understanding of the ICMA deferred compensation program? 1 2 3 4 5 6 2. How satisfied are you with: Circle one number for each item Answer key 1 Very satisfied 2 Satisfied 3 Neutral 4 Dissatisfied 5 Very Dissatisfied The overall benefits provided by the current Maine State Retirement System 1 2 3 4 5 The death benefits provided by the current Maine State Retirement System 1 2 3 4 5 The disability benefits provided by the current Maine State Retirement System 1 2 3 4 5 The current Maine State Retirement System not offering participation in the Federal Social Security program 1 2 3 4 5 -9- ALTERNATIVE PLAN 3. The City of Portland is considering an alternative retire- ment plan. The alternate retirement plan would be optional with every employee having the right to the [sic] stay in Maine Retirement System. It has been suggested that a defined contribution plan offers attractive features for City employees. Under a defined contribution plan, each employee would have a per- sonal account which will provide retirement benefits. This account will accumulate with annual contributions and investment earnings. As with the current Maine State Retirement Plan, the City and employees will share in making contributions to the plan. Your retirement benefit would be based on the size of the account rather than your average salary and total service at retirement. It is anticipated that an alternative plan would provide greater benefits at younger ages but smaller benefits near age 65. Also, it would provide full vesting within 5 years of employment. Circle one number for each item Answer key 1 Very interested 2 Interested 3 Not sure 4 Not interested Would you be interested in switching to an alternative plan, as described above? 1 2 3 4 Would you be interested in switching to an alternative plan, as described above, if you could contribute more than you currently do? 1 2 3 4 Would you be interested in switching to an alternative plan, as described above, if you could contribute less than you currently do? 1 2 3 4 4. How strongly do you agree or disagree with the following statements about your retirement benefits? -10- Circle one number for each item Answer key 1 Strongly Agree 2 Tend to Agree 3 Not Sure 4 Tend to Disagree 5 Strongly Disagree Having a choice in retirement plans would better meet my needs. 1 2 3 4 5 I prefer that The City of Portland not change the current pension plan. 1 2 3 4 5 All things considered, the City is doing a good job of providing retirement benefits. 1 2 3 4 5 BACKGROUND QUESTIONS The following questions help us to understand how groups of employees view things. In order to protect individual answers, Foster Higgins will make sure that there are enough employees in any grouping of results so that no individual can be iden- tified. 5. Which of the following best describes your job classifica- tion? 1 Mid-manager 2 Labor and Trades Circle 3 Department Head One 4 Public Safety Number 5 Technical/Professional 6 Secretarial/Clerical 7 Other: (specify) 6. Your age: (Circle one number) 1 Under 25 years 6 45 years to 49 years 2 25 years to 29 years 7 50 years to 54 years 3 30 years to 34 years 8 55 years to 65 years 4 35 years to 39 years 9 66 years or more 5 40 years to 44 years -11- 7. How long have you worked for The City of Portland? 1 Less than one year 2 1 year or more but less than 5 years Circle 3 5 years or more but less than 10 years one 4 10 years or more but less than 15 years number 5 15 years or more but less than 20 years 6 20 years or more but less than 25 years 7 25 years or more but less than 30 years 8 30 years or more 8. Your sex: Circle 1 Male one 2 Female number 9. Are you a member of a labor union? Circle 1 Yes, Firefighters Union one 2 Yes, Police Union number 3 Yes, AFSCME 4 Yes, other union 5 No 10. What is your marital status? Circle 1 Married one 2 Divorced/Widow/Widower number 3 Single 11. Please use the space below for any additional comments you wish to make about your benefits, regardless of whether it was covered in the questionaire [sic]. Your comments will be typed and combined with other employee's [sic] comments. 24. The survey was sent out by the City to employees chosen by Foster Higgins from a magnetic tape containing a list of city employees and a variety of information on each, including bargaining unit affiliation.4 Recipients were directed to return their completed questionnaires to Foster Higgins, which tabu- lated the results and provided them to the City. The City has provided the _______________________ 4Surveys were sent to approximately 13% of the City's employees; 13.1% of the Labor and Trades unit, 8.3% of the Supervisors' unit and 12.5% of the CEBA unit received them, reflecting a fairly random sampling across bargaining units. -12- results to the task force and to all nine union presidents. 25. Both AFSCME and Local 481 received negative reaction to the survey. Some callers to Local 481 asked if AFSCME and officers of the union "had sold them out; if we had made a special deal; why wasn't this issue being addressed at the table?" According to Pritchard, "At one point I thought there was going to be a lynch committee coming after the negotiating team. They thought we had sold them out." Reactions received by AFSCME were varied. A couple of callers felt the survey was slanted toward the alternative plan described in the survey; others asked why AFSCME was fighting the alternative. Some members questioned AFSCME's apparent agreement to a plan that hadn't been bargained and voted on by membership. 26. The City has not raised or attempted to use the results of the survey at the bargaining table. 27. During the period from August 14, 1987, through April 23, 1990, Kevin Carroll, president of Local 1373, signed 10 side agreements on behalf of his local; none were related to resolution of a grievance. Carroll was not an officer of AFSCME Council 93 when he signed them. Richard Taylor of AFSCME was copied on four of the 10 side agreements. 28. On June 15, 1990, Charles Sherburne of AFSCME left a phone message for Gloria Thomas indicating that Kevin Carroll was not authorized to sign side agreements with the City. Because Thomas was out of the office, Patricia Peightal contacted Sherburne to verify the message. Having done so, she notified Carroll of AFSCME's position, since it was apparent to her that Carroll intended to sign a side agreement on an issue they were currently negotiating. In a letter dated June 19, 1990, Carroll notified Peightal of his position that Local 1373 is the the sole bargaining agent for CEBA employees. DISCUSSION AFSCME and its three locals allege that by communicating with employees to ascertain their attitudes on pension benefits at a time when the pension issue was on the bargaining table, the City has engaged in direct dealing and has interfered with administration of the complaining organizations, violating 26 M.R.S.A. 964(1)(C) and (E) and 965(1) and (1)(C) (1988). At hearing, the -13- complainants asserted an additional theory -- that the employee communication was slanted toward management and therefore was misleading in its advocacy of a particular alternative pension plan, for the implementation of which the City has established a multipronged approach. The City denies the allegations and as affirmative defenses asserts 1) its free speech rights, and 2) waiver. Waiver As a procedural defense, the City points out that Kevin Carroll, president of complainant Local 1373, 1) was a member of the pension task force, which agreed that an employee survey would be conducted and reviewed the contents of the survey; 2) was a member of the task force subcommittee that negotiated with the consultant regarding the scope of services, including the survey; 3) never informed the City or the task force that his participation in the task force was not as a representative of Local 1373; and 4) had apparent authority to act on behalf of Local 1373, since he has signed side agreements that affect the terms of the collective bargaining agreement between the City and Local 1373. As a result, the City argues, Local 1373 has waived its right to claim that the City violated the MPELRL by sending out the survey. AFSCME responds that Carroll participated because he was told that the task force would go forward with or without him and that he should attend the meetings of the task force so that he would know what was going on. AFSCME also argues that the City's "failure to object" argument is inconsistent with its position that the task force was merely a study committee. We find the City's arguments more persuasive. As a member of the task force, and particularly as a member of the task force subcommittee, Carroll had the opportunity to object to the survey at a very early stage in the process. He did not do so, and in fact appears to have affirmatively condoned its use. Although the City admits that AFSCME is the exclusive bargaining agent for Local 1373, we find its reliance on Local 1373's assent to the use of the survey entirely reasonable. It was not the City's responsibility to make sure that the lines of authority within AFSCME were clear to AFSCME locals. Accordingly, we find that Local 1373 has waived its right to object to sending of the March 2nd survey to members of its bargaining unit. The allegations of the complaint as they relate to Local 1373 are dismissed. The City also argues that "consistent with the Board's well-established rule that issues not pressed in the brief are considered dropped," the claims of -14- AFSCME Council 93 and Local 481-07 should be dismissed, since in their brief, "Complainants appear to press the case only on behalf of Local 481." In support of its position, the City cites Coulombe v. City of South Portland, No. 86-11, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986); and Teamsters Local 48 v. University of Maine, No. 79-37, 1 NPER 20-10030 (Me.L.R.B. Oct. 17, 1979). The City misstates Board precedent. Coulombe addressed a situation where one of the defenses of the Respondent in its answer to the complaint was not mentioned at either the hearing or in the Repondent's posthearing brief, and the Board deemed the defense withdrawn. (It went on to explain why the defense lacked merit.) In Teamsters, there was a stipulated record rather than an evidentiary hearing, and the parties also had stipulated that the legal issues raised by the case would be argued in briefs. Even so, when neither party addressed two of the alleged violations in the briefs, the Board stated that it would explain why it thought those violations had not occurred, rather than follow its usual practice of treating them as withdrawn. In two other cases, one cited in Coulombe and one cited in Teamsters, allegations were dismissed because they were neither supported in the record nor argued in posthearing briefs. Council 74, AFSCME v. City of Westbrook, No. 81-53, 4 NPER 20-12033 (Me.L.R.B. Aug. 6. 1981); Teamsters Local 48 v. City of Auburn, No. 79-41, 1 NPER 20-10028 (Me.L.R.B. Oct. 4, 1979). In the matter before us, references to AFSCME Council 93 appear throughout complainants' brief. At the hearing, testimony was provided by Richard Taylor, a staff member of AFSCME, which is the exclusive bargaining agent for the three complaining locals, including Local 481-07; and by Jim Pritchard, a member of the AFSCME negotiating team and president of Local 481, which is the umbrella orga- nization for both the Labor and Trades unit and the Supervisors' unit (Local 481-07). Testimony showed that both Pritchard and Taylor objected to the survey being sent to AFSCME bargaining unit members. Under the circumstances, we see no basis for finding that either AFSCME or Local 481-07 has failed to press its case. Interference with administration The alleged violation of section 964(1)(C) of the MPELRL warrants only brief discussion. As the Board has stated on numerous occasions, "This section of the Act is directed at the evil of too much financial or other support of, encour- -15- aging the formation of, or actually participating in, the affairs of the union and thereby potentially dominating it." Teamsters Local 48 v. City of Calais, No. 80-29, slip op. at 5, 2 NPER 20-11018 (Me.L.R.B. May 13, 1980). Since there is no evidence to support the complainants' allegation, it is dismissed. Direct dealing There is no blanket prohibition against direct communication between employers and employees during contract negotiations. Teachers' Association of SAD 49 v. Board of Directors of MSAD 49, No. 80-49, slip op. at 6, 3 NPER 20-12005, (Me.L.R.B. Nov. 18, 1980). "It is of course a venerable principle of labor law that 'an employer acts in bad faith and violates the Act by dealing directly with its employees concerning their working conditions at a time when they are represented by an exclusive bargaining representative.'" MSEA v. Bangor Mental Health Institute, No. 84-01, slip op. at 6, 6 NPER 20-15004 (Me.L.R.B. Dec. 5, 1983), citinq Farm Crest Bakeries, 241 N.L.R.B. 1191, 1196-97 (1979). "The injury suffered by the bargaining agent when the employer deals directing with represented employees is 'not that flowing from a breach of contract [but] to the union's status as a bargaining representative."' Id. at 7, citing C & C Plywood Corp., 163 N.L.R.B. 1022, 1024 (1967), enforced sub nom. N.L.R.B. v. C & C Plywood Corp., 413 F.2d 112 (9th Cir. 1969). Communication with employees may take several forms, some of which constitute direct dealing and some of which do not. Expression of employer opinion, if noncoercive in nature, is constitu- tionally protected free speech. MSAD 49, slip op. at 6. Informational state- ments may also be made directly to employees, as long as they are accurate and noncoercive. MSEA v. Maine, No. 82-01, 5 NPER 20-13020 (Me.L.R.B. April 5, 1982); Associated Faculties of the University of Maine v. Association of Independent Professionals, No. 81-22, 4 NPER 20-12036 (Me.L.R.B. Aug. 19, 1981); Kittery Employees Association v. Strahl, No. 86-16, 9 NPER ME-18002 (Me.L.R.B. Aug. 6, 1986). Even statements outlining a party's proposals currently on the bargaining table are lawful as long as they are uncoercive. Putnam Buick, 280 N.L.R.B. 868 (1986), aff'd sub nom. International Association of Machinists v. N.L.R.B., 827 F.2d 557 (9th Cir. 1987). Direct proposals to employees to change terms and conditions of employment, made with a promise of benefit or threat of reprisal, are illegal (Teamsters Local 48 v. City of Calais, No. 80-29, 2 NPER -16- 20-11018 (Me.L.R.B. May 13, 1980)); Teamsters Local 48 v. Town of Kittery, No. 84-25, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984)), as are attempts to create the impression of direct bargaining with unit employees. MSAD 49, slip op. at 7-8. Solicitation of employee attitudes is yet another form of communication with employees, and one that has been presented to this Board in the context of terms and conditions of employment (as opposed to union sympathies) on only two occa- sions. In Lord v. MSAD 41 Board of Directors, No. 76-12 (Me.L.R.B. June 15, 1976), the Board found a violation of section 964(1)(A) of the MPELRL, for polling of employees to ask, among other things, whether "working conditions" might be changed in the coming year to increase job satisfaction. (Violation of section 964(1)(E) was not alleged.) In Oxford Hills Teachers Association v. MSAD 17 Board of Directors, No. 88-13, 12 NPER ME-21000 (Me.L.R.B. June 16, 1989), the Board refused to find a violation of section 964(1)(E) in the employer's polling of employees. There a teachers advisory council ("TAC") had been set up by the employer to discuss educational policy matters. An employee survey, which was conducted and discussed at a meeting of the TAC, asked par- ticipating teachers to indicate their top five priorities from a list of 17 broad issues "confronting education today." The list included topics such as crime/vandalism, parents' lack of interest, and use of drugs. Id., Complain- ant's Exhibit 3. Two of the 17 issues listed, "collective bargaining" and "personnel relations," were broadly related to mandatory subjects, but neither issue was discussed at the meeting. The Board also noted that the polling had been conducted after the parties had reached final tentative agreement on their successor contract. In the matter before us, the City defends its failure to stop the task force questionnaire from being sent to AFSCME unit members on two separate grounds: 1) the content of the questionnaire and 2) the events surrounding its use. We will address these arguments separately. In its discussion on content, the City argues that the questionnaire pri- marily focuses on how employees evaluate and understand their current benefits; that there is a "single question" on pension alternatives, which includes balanced prefatory information; that the survey is not persuasive or coercive; and that the single question regarding union affiliation cannot make an other- -17- wise legal communication illegal. The questionnaire that was sent to the City's employees contains four types of questions: three questions sought to determine how effectively current pen- sion benefits are being communicated (the last three questions in section 1 of the survey); 15 questions sought employee opinions on current or possible alter- native pension benefits; one question was a catchall soliciting opinions on employee benefits in general; and five sought background information on employees responding to the survey. The City relies on United Technologies Corp., 274 N.L.R.B. 1069 (1985), enforced sub nom. N.L.R.B. v. Pratt & Whitney Air Craft Division, 789 F.2d 121 (2nd Cir. 1986), for its assertion that the content of the survey was permissible. That reliance is misplaced. In United Technologies the National Labor Relations Board ("NLRB"), in finding no violation, found that the purpose of the employer's survey was "to determine whether its personnel policies and benefit programs were being pro- perly communicated to its most recently hired employees." In addition, "On the whole, [the] questions solicited employee sentiment with respect to contractual benefits which were clearly outside the scope of the upcoming reopener negoti- ations." Id. at 1071. Thus, while the NLRB condones asking employees questions regarding whether there is sufficient communication of benefits, it does not condone solicitation of opinions on benefits, for benefits issues that are on the bargaining table. The NLRB does not make the distinction the City makes between employee opinions on current benefits and employee opinions on possible alternatives, and we see no reason for making such a distinction. Nor does soliciting opinions in a noncoercive manner make the solicitation legal. In M.A. Harrison Manufacturing Co., 253 N.L.R.B. 675, 684-5 (Dec. 10, 1980), enforced sub nom. N.L.R.B. v. M.A. Harrison Manufacturing Co., 682 F.2d 580 (6th Cir. 1982), a supervisor of the employer polled some of its employees concerning possible implementation of a sickness and accident insurance plan. In finding a violation of the duty to bargain under the National Labor Relations Act, the NLRB stated: The only serious question is whether the polling of employee sentiment, without any express promise or effec- tuation of the benefit under consideration, amounted to unlawful bypassing of the Union . . . . -18- . . . Similarly, [the employer] may not take preliminary steps toward devising benefits which, if granted without the union's intervention, would undermine its status as the employees' exclusive representative. Accordingly, it is concluded that Respondent violated Section 8(a)(5) and (1) of the Act when Taylor surveyed employee sentiment concerning a sickness and accident insurance program under consideration by Respondent. (Emphasis added.) The issue of pension alternatives was on the bargaining table for the AFSCME locals, and there has been no suggestion that employee pensions are not a mandatory subject.5 Members of both the Labor and Trades and the Supervisors' units received the questionnaire. Fifteen of the 19 substantive questions were clearly designed to determine employee attitudes regarding pension benefits. We find that the survey constituted direct dealing, if attributable to the employer.6 In pointing to the events surrounding use of the questionnaire, the City makes two closely related arguments: that the questionnaire was not an employer communication and that in conducting the survey, it was never the City's intention to influence the course of negotiations on pension benefits. Regarding whether the survey was an employer communication, it argues 1) that the questionnaire was neither conceived of nor designed by the City, but by the task force consultant; 2) that it was sent to only a fraction of AFSCME unit employees, who were selected not by the City but by the consultant; 3) that the ________________________ 5See Augusta Uniformed Firefighters Association v. City of Augusta, No. 75-16, slip op. at 2 (P.E.L.R.B. May 13, 1975) (pensions are mandatory sub- ject under the MPELRL). 6No evidence was presented regarding what, if any, subjects other than pensions were on the bargaining table at the time the survey was sent out. Con- sequently, we make no finding with respect to the last question in the survey, which solicited opinions on benefits in general. In addition, since we find that on its face the survey constitutes direct dealing if attributable to the employer, we need not reach the issue of whether the survey was slanted toward management and was therefore misleading, as alleged by complainants. Nor need we decide whether the background question regarding union affiliation would make an otherwise legal communication illegal. -19- only reason the City itself had mailed out the questionnaire was to save money;7 and 4) that the survey was intended and was labelled as a tool to assist the task force, which was simply a study committee with no power to implement an alternative pension plan. Regarding its motives, the City asserts 1) that task force work and collective bargaining were kept totally separate, and 2) that the City has made no attempt to use the results of the survey, which have been shared with the unions, at the bargaining table. We are not pursuaded by the City's arguments. While the questionnaire was neither conceived of nor designed by the City, the task force membership included several City representatives, such as Mark Green, deputy city manager. More significantly, it included Gloria Thomas, director of human resources. Prior to her appointment to that position, Thomas was the labor relations administrator for the City (a position that she now supervises), and thus was fully aware of the City's responsibilities with respect to the duty to bargain. The principles of agency apply equally to all parties. Just as Kevin Carroll, president of Local 1373, could have objected to the survey and/or its specific contents when it was presented to the task force for review, so too could Ms. Thomas have objected. She did not, in spite of her knowledge that several of the unions were not participating in the pension task force. The fact that the survey was sent to only a fraction of AFSCME unit employees is irrelevant. Direct dealing with even one employee is a violation of the MPELRL. Nor is the fact that the recipients of the survey were chosen by the consultant rather than the City helpful; it was the City that provided the consultant with the list from which the consultant selected recipients, and that list included all AFSCME unit employees. It was not the consultant's respon- sibility to ensure that the City did not communicate directly with employees on the list whose bargaining agent had not approved such communication. Finally, while we agree with the City that who actually mailed out the survey is of little significance, we find the City's financial argument curious. The scope of ______________________ 7The RFP had not included conducting an employee survey. According to testimony, once the decision to conduct a survey was made, the City agreed to do the mailing so that it would not have to spend more for the consultant's work than it had originally indicated in the RFP. -20- services in the final contract indicated that the City would not only mail out the questionnaire, but would also tabulate the results and send a report to Foster Higgins. Yet in the end it was Foster Higgins that received the completed questionnaires, tabulated the information and notified the City of the results. The labeling of the survey materials was at best confusing, at worst misleading. The survey itself states: "This is the pension benefit survey you were told about by Robert Ganley [city manager] in his recent memo. As indi- cated, The City of Portland is studying the Maine State Retirement System and an alternative plan." The Ganley memo, which preceded the survey and was attached to to the paychecks of all employees, indicated that a task force whose membership "is made up of representatives from both management and labor" had been appointed to explore the feasibility of establishing an alternative pension plan. The memo also indicated that "the results will help the Task Force design a plan that will best meet the needs of our employees . . . . Assuming the Task Force is successful in designing an alternative pension plan, the new plan could be in place before the end of 1991." The Board does not find it unreasonable for some employees to have assumed, as the evidence shows they did, that an agreement between the unions and the City had already been reached that some form of pension alternative would be offered. The fact that Patricia Peightal, labor relations administrator, was not kept apprised of the task force work means little; she drafted the pension proposal for the bargaining table in consultation with her supervisor Gloria Thomas, a task force member. In light of the City's past attempt to get legislation passed permitting PLDs to offer their employees alternatives in addition to the Maine State Retirement System, we do not believe that it was mere coincidence that there was a pension proposal on the bargaining table which if accepted, would authorize the City to implement any alternative that the task force pen- sion study might recommend. Finally, we note that it was the City that contracted with the consultant for its services, was obligated to pay for those services and had control over the performance of those services, including conducting the survey. Looking at the totality of the the circumstances, we find the City's distinction between a task force communication and a City communication without merit. -21- Nor is the City's argument regarding motive persuasive. We note first that since the prohibited practice complaint in this matter was filed the day the survey went out, the fact that the City has made no attempt to use the results of the survey at the bargaining table does not carry much weight. More impor- tant, we are troubled by the events just prior to the mailing of the survey. We do not dispute that the survey was intended as a tool to assist the task force in its study of pension alternatives. It may well be that at the time the deci- sion was made to survey employees, the City had no intention of using the results of the survey to influence the course of bargaining on pension alter- natives. However, we cannot ignore the fact that once the complainants were informed of the impending survey and objected to it, the City failed to respond to those objections in any meaningful way. While the City offered to discuss the matter, it did not offer to stop the survey. Had it been so disposed, the City could have 1) postponed mailing the survey and attempted to get AFSCME's agreement to send the survey out in a modified form; 2) removed all employees in the AFSCME units from the list of recipients and sent the survey to the remainder of the list that had been prepared by the consultant; or 3) requested that the consultant prepare a list of names to be used as substitutes for those removed from the list, in order to keep the total number of survey recipients the same. There was no showing made by the City that it had a compelling business need to send out the survey on March 2nd, and thus could not take advantage of those options.8 In summary, we find that the questionnaire was an employer communication; that its major thrust was the polling of employee sentiment on pension benefits, a mandatory subject then on the bargaining table; and that the City had no legitimate business reason for refusing to stop the survey once it had received objections to the survey from Taylor, negotiator for AFSCME, and Pritchard, president of Local 481 and an AFSCME officer. Accordingly, we find that the City has engaged in direct dealing, contrary to its obligation to bargain in good faith under section 965(1)(C), and in violation of section 964(1)(E) of the MPELRL. ________________________ 8Wallkill Valley General Hospital, 288 NLRB No. 18, 127 LRRM 1318, 1322 at fn 11 (1988), aff'd sub nom. N.L.R.B. v. Wallkill Valley General Hospital, 866 F.2d 632 (3d Cir. 1989). -22- We will order such relief as will effectuate the policies of the MPELRL. 26 M.R.S.A. 968(5)(C) (1988). The City and its representatives and agents will be ordered to cease and desist from engaging in direct dealing, regarding the mandatory subject of pension benefits, with employees in the City of Portland Labor and Trades and Supervisors' units represented by AFSCME. In addition, will order respondents to sign, date and distribute to each employee in those two units the attached "Notice." The March 2nd survey was distributed through the U.S. Postal Service; the Ganley memo to all AFSCME unit members, which explained the survey, was attached to employees' paychecks. Consequently, distribution of the attached "Notice" shall be by first-class mail, postage pre- paid, within 10 calendar days of the date of issuance of this decision and order, or by attachment of the "Notice" to paychecks on the next regularly sche- duled pay day for employees of the two units. If the "next regularly scheduled pay day" occurs within five working days of the date of issuance of this deci- sion and order, the "Notice" may be attached to paychecks distributed on the next regularly scheduled pay day thereafter. Within 25 calendar days of the issuance of this decision and order, the respondents shall notify the Executive Director, in writing, of the steps that have been taken to comply with our order. 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) (1988), it is hereby ORDERED: 1. That Respondent City of Portland and its representatives and agents shall: a. Cease and desist from engaging in direct dealing, regard- ing the mandatory subject of pension benefits, with employees in the City of Portland Labor and Trades and the Supervisors' units represented by AFSCME; b. Sign, date and distribute the attached "Notice" to each employee in the City of Portland Labor and Trades and Supervisors' units represented by AFSCME. Distribution shall be by first-class mail, postage prepaid, within 10 calendar days of the date of issuance of this decision and order, or by attachment of the "Notice" to paychecks on the next regularly scheduled pay day for said employees. If "the next regularly scheduled pay day" occurs within five working days of the date of issuance of this decision -23- and order, the "Notice" may be attached to paychecks dis- tributed on the next regularly scheduled pay day thereafter; c. Notify the Executive Director, in writing, of the steps that have been taken to comply with this order within 25 calendar days of the issuance of this decision and order. 2. That the allegations of the complaint as they relate to AFSCME Local 1373 are dismissed. 3. That the City's request for attorney's fees and costs is denied. Dated at Augusta, Maine, this 18th day of October, 1990. MAINE LABOR RELATIONS BOARD /s/__________________________ Jessie B. Gunther Alternate Chair /s/__________________________ Carroll R. McGary Alternate Employer Representative /s/__________________________ George W. Lambertson Employee Representative The parties are advised of their right pursuant to 26 M.R.S.A. 968(5)(F) (1988) to seek review of this decision and order by the Superior Court, by filing a complaint in accordance with Rule 80C of the Maine Rules of Civil Procedure within 15 days of the date of issuance of this decision. -24- STATE OF MAINE MAINE LABOR RELATIONS BOARD Augusta, Maine 04333 NOTICE ____________________________________________________________________________ NOTICE TO ALL EMPLOYEES IN CITY OF PORTLAND LABOR AND TRADES AND SUPERVISORS' UNITS REPRESENTED BY AFSCME COUNCIL 93 Pursuant to a Decision and Order of the MAINE LABOR RELATIONS BOARD and in order to effectuate the policies of the MAINE PUBLIC EMPLOYEES LABOR RELATIONS LAW you are hereby notified that: 1. THE CITY WILL NOT engage in direct dealing with employees in the above-mentioned bargaining units on the subject of pension benefits, and changes in those benefits will occur only through negotiations with the bargaining agent. 2. THE CITY WILL, within 25 calendar days of the date of issuance of the Board's decision and order, notify the Maine Labor Relations Board, in writing, at its offices in Augusta, Maine, of the steps that have been taken to comply with the Board's order. CITY OF PORTLAND Dated: __________________________________ Robert B. Ganley, City Manager If employees have any questions concerning this Notice or compliance with its provisions, they may communicated directly with the offices of the Maine Labor Relations Board, State House Station 90, Augusta, Maine 04333. Telephone 289-2015.