Decision on Respondent's Motion to Dismiss, April 22, 1998;
Interim Order on Motion to Dismiss and Motion to Quash Subpoena, Sept. 14, 1998.



 STATE OF MAINE                           MAINE LABOR RELATIONS BOARD
                                            Case No. 98-11
                                            Issued: April 22, 1998




UNITED PAPERWORKERS
INTERNATIONAL UNION,

                        Complainant,

                   V.                              DECISION ON RESPONDENT'S
                                                     MOTION TO DISMISS


WINTHROP SCHOOL DEPARTMENT,

                            Respondent.


	This is a decision to address a prehearing motion which was
deliberated by the Maine Labor Relations Board on April 15,
1998.[1] The Winthrop School Department (hereinafter "the
Department") filed a Motion to Dismiss the prohibited practice
complaint filed against it by United Paperworkers International
Union ("UPIU") on the basis that the complaint fails to state a
claim upon which relief can be granted.  We agree with the
Department that the complaint fails to allege facts which, if
proven, would constitute a violation of 26 M.R.S.A. §964(l)(A)
or (B).

   The complaint filed by UPIU on December 3, 1997, alleges
that the Department engaged in an unfavorable course of conduct
against a union member, Ms. Lori Holmes, once she was identified
as one of the eleven employees working on the union organizing


_______________________
1 The motion was filed prior to the prehearing conference which was
conducted on April 8, 1998.  The prehearing officer took out a record
on the motion and referred the matter to the full Board for
deliberation and decision.  Prior to its deliberation, the Board
reviewed the pleadings and a transcript of the proceeding before the
prehearing officer.

					-1-
	
                      
committee.[2]    The complaint was amended to allege that the
Department  "continued on its same course of conduct with Lori
Holmes" when it denied Ms. Holmes reinstatement to her position
as main site manager on January 20, 1998, after an extended
medical leave of absence.  UPIU contends that the Department's
conduct violates 26 M.R.S.A. §964(l)(A) & (B).

          We will first address UPIU's section 964(l)(B) discrimination
claim, because the section 964(l)(A) claim is derivative; that is
to say, the claim that the Department interfered with, restrained
and coerced Ms. Holmes in the exercise of protected rights in
violation of section 964(l)(A) derives from the allegation of
discriminatory treatment of Ms. Holmes in violation of 964(l)(B),
not from conduct independent of the treatment of Ms. Holmes. [3]
If UPIU failed to state a claim under section 964(l)(B), its
§964(l)(A) claim fails as well.

        In order to support a section 964(l)(B) discrimination
claim, UPIU must allege facts which would tend to prove that:
(i) Ms. Holmes engaged in protected activity; (ii) her supervisor
had knowledge of Ms. Holmes, participation in protected activity;
and, (iii) there is a relationship, or "causal connection,"
between the protected activity and the Department's adverse
employment actions against Ms. Holmes.  Casey v. Mountain Valley
Education Association and School Administrative District No. 43,

____________
 2 An organizing campaign begun in March, 1997, resulted in
certification of the UPIU as bargaining agent for the Department's
food service employees in October, 1997.

3 Accordingly, it was not necessary for UPIU to allege facts in
support of its 964(l)(A) claim different from those alleged in support
of its 964(l)(B) claim.  Cf.  Teamsters Union Local #340 v. Rangeley
Lakes School Region, No. 91-22, slip op. at 22 (Me.L.R.B. Jan. 29,
1992) (discriminatory discharge of complainant, a union organizer,
inherently interferes with the free exercise of employee rights in
violation of section 964(l)(A)); Maine State Employees Association et
al. v. State Development Office, 499 A.2d 165, 169 (Me. 1985) (in view
of the Board's finding of no causal connection between employee's
discharge and his protected activity, it cannot be said that the
employer's conduct violated the interference, restraint or coercion
 prohibition).

                                             -2-

Case Nos. 96-26 & 97-03, slip op. at 27-28 (Me.L.R.B. Oct. 30, 
1997) (citing Teamsters Union Local #340 v. Rangeley Lakes School
Region, No. 91-22, slip op. at 18, 14 NPER ME-23005 (Me.L.R.B.
Jan. 29, 1992) ) .

           The Department challenges the sufficiency of UPIU's
complaint in regard to the third element of its claim. [4] The
Department contends there are no alleged facts in the complaint
which would, if proven, demonstrate a causal nexus between
Ms. Holmes' union activity and the adverse employment actions.
We agree.

            A review of the complaint, as amended, reveals that the only
fact alleged to support UPIU's belief that Ms. Holmes' organizing
efforts led to unfavorable treatment is the timing of the
unfavorable treatment (i.e., that it followed her protected
activity).  While it is necessary in every discrimination case to
prove that unfavorable treatment followed protected activity, the
Board has determined that timing alone is generally an
insufficient basis to support a finding of discriminatory
motivation.  Teamsters Union Local #340 v. Rangeley Lakes School
Region, No. 91-22, slip op. at 20, 14 NPER ME-23005 (Me.L.R.B.
Jan.29, 1992); Maine State Employees Association v. State
Development Office, No. 84-21, slip op. at 11, 7 NPER 20-15017
(Me.L.R.B. July 6, 1984), aff'd, 499 A.2d-165 (Me. 1985) (the
fact that the conduct cited in the complaint happened to coincide
with the employee's protected activity does not, without more,
establish a prima facie case of discrimination).  A complaint
must allege facts which would tend to prove the element

___________
4 The Department does not dispute that Ms. Holmes enaaqed in
protected activity, that the Department had knowledge of Ms. Holmes'
protected activity, or that adverse employment actions were later
taken against Ms. Holmes.  The Department notes, however, that the
complaint itself alleges adverse actions were taken against Ms. Holmes
prior to their knowledge of union activity.  While this fact may, but
does not necessarily, minimize the importance of the timing of the
later adverse actions, we find that UPIU has satisfied the first two
elements for purposes of this motion.

                                           -3-

of causation or connection between protected activity and
unfavorable treatment beyond the fact that one follows the other.

        Rather than dismiss UPIU's complaint at this juncture for
failure to state a claim, we will grant UPIU leave to amend the
complaint pursuant to Rule 4.06(B). If UPIU does not amend its
complaint within the time period provided in Rule 4.06 (B),
we will dismiss this complaint with prejudice.  A Notice of
Dismissal, including the requisite notice of right of appeal to
the Superior Court, will issue at that time.  If UPIU files an
amended complaint within the applicable time period, the
procedure for review of that complaint set forth in Rule 4.06(C)
will apply.

          Dated at Augusta, Maine this 22nd day of April, 1998.
                                           MAINE LABOR RELATIONS BOARD


                                                             
                                           Peter T. Dawson
                                           Chair



                                           Karl Dornish, Jr.
                                           Employer Representative

                                             
                                           Carol B. Gilmore  
                                           Alternate Employee Representative








                                           -4-





STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 98-11
                                      Issued:  September 14, 1998

______________________________
                              )
UNITED PAPERWORKERS           )
INTERNATIONAL UNION,          )
                              )
              Complainant,    )
                              )       INTERIM ORDER ON MOTION TO
     v.                       )       DISMISS AND MOTION TO QUASH 
                              )                SUBPOENA          
WINTHROP SCHOOL DEPARTMENT,   )                                   
                              )
              Respondent.     )   
______________________________)


     Upon consideration of briefs submitted by the parties, we
hereby DENY respondent's Motion to Dismiss.  We have examined the
amended complaint in the light most favorable to the complainant
and, treating the allegations as true, conclude that it states a
claim under 26 M.R.S.A.  964(1)(A) & (B).

     We turn now to respondent's Motion to Quash the subpoena
duces tecum issued at the request of the complainant.  The
subpoena seeks production of:  all documents relating to leaves
of absence and return to work of eight employees (two of whom are
deceased); all documents relating to the job-sharing arrangement
of two employees; and, all performance rating forms for food
service workers employed by the respondent since January 1, 1994.

     The respondent objects to production of these records
without the consent of the affected employees on the basis that
they are expressly made confidential by 20-A M.R.S.A.  6101.[fn]1
Respondent contends that, while the Municipal Public Employees
Labor Relations Law authorizes the Board to subpoena witnesses
and documents, it does not authorize the Board to subpoena 
____________________

     1 The statute provides that information related to employee
personnel matters "shall be kept confidential."  The only
statutory exception is one which allows the Commissioner of
Education access to these records for carrying out certain
duties. 

                               -1-

documents made confidential by other statutes. 

     We agree that the respondent cannot voluntarily provide
these documents to the union without the consent of its
employees.  The law does not provide an exemption for access to
bargaining agents in the event that access is necessary to carry
out collective bargaining duties, as do the laws pertaining to
the confidentiality of personnel records of state, county and
municipal employees.[fn]2  On the other hand, we understand the
complainant's interest in reviewing these records in preparation
for the hearing in this prohibited practice complaint and the
potential benefit gained by disclosure for the correct
disposition of this particular proceeding.[fn]3  But see Dana Duff v.
Town of Houlton, et al, No. 97-20 (Me.L.R.B. February 24, 1998)
(benefit to the Board gained by disclosure of confidential
personnel records to individual complainant, to whom the
exemption for union access does not apply, does not outweigh the
injury to employees of disclosure of these records).

      We will resolve these conflicting interests in the following
manner.  We hereby GRANT the respondent's Motion to Quash the
subpoena.  We direct the respondent, however, to give notice to
the affected employees who have not yet authorized release of
their confidential records to the complainant.[fn]4  The notice shall
inform the employee of the confidentiality statute and of this
pending complaint; provide the Board's telephone number and
address; and, indicate that the employee has two options:      
____________________

     2 See 5 M.R.S.A.  7070 (state employees); 30-A M.R.S.A.  503
(county employees); 30-A M.R.S.A.  2702 (municipal employees).

     3 We have not yet determined whether the records in question will
be admissible at hearing.

     4 It is our understanding, from review of the record to date, that
there are approximately 20-30 employees in question, and that the
complainant has obtained authorization from 12 of these employees for
the release of their personnel records.

                               -2-

(i) the employee may provide written authorization for the
respondent to release confidential personnel records to the
complainant forthwith, for use in the proceedings before the
Maine Labor Relations Board; or (ii) the employee may seek to
prevent disclosure of the records by notifying the Executive
Director of the Maine Labor Relations Board within five days
after notice has been sent that s/he objects to disclosure.  The
notice shall indicate that, if the employee objects, s/he may be
required to appear before the Board to testify in these
proceedings in lieu of disclosure.  Finally, the notice shall
indicate in a conspicuous manner that failure to execute a
release or to notify the Board within the time given of any
objection to the release of confidential records will be deemed a
waiver of all objections to the release of confidential personnel
records to the complainant for use in these proceedings.  

      The respondent shall provide the complainant and the Board
with copies of the notice and a master list of affected
employees.  Respondent shall also forward to the complainant and
the Board copies of all releases obtained.  If any employee files
an objection with the Board, the executive director shall notify
the parties, and the complainant may request a subpoena(s) at
that time to require the attendance of said employee(s) at the
hearing, and to require that they bring with them copies of their
personnel file for use, if necessary, during their testimony. 
Likewise, the parties will be notified by the executive director
of any employees deemed to have waived objection to the release
of confidential records, and those records shall be released to
the complainant.[fn]5   

      Disclosure of information made confidential by 20-A M.R.S.A.
____________________

      5 As to the release of documents pertaining to employees now
deceased, the Board will not order release of those documents at
this juncture.  If the complainant wishes to renew its request
for subpoena of those documents after its review of all other
documents released, the Board will require the parties to brief
this issue at that time.

                               -3-

 6101 in these proceedings before the Board will be subject to
the terms of the protective order which accompanies this interim
order. 

Dated at Augusta, Maine, this 14th day of September, 1998.

   MAINE LABOR RELATIONS BOARD



                                /s/_____________________________
                                Peter T. Dawson
                                Chair



                                /s/_____________________________
                                Karl Dornish, Jr.
                                Employer Representative



                                /s/_____________________________
                                Carol B. Gilmore
                                Alternate Employee               
                                  Representative

                               -4-