STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 93-UC-01
Issued: December 7, 1992
_________________________________________
)
ORONO TEACHERS ASSOCIATION/MTA/NEA )
)
Petitioner, )
)
and ) UNIT CLARIFICATION
) REPORT
ORONO SCHOOL COMMITTEE, )
)
Public Employer )
_________________________________________)
On September 9, 1992, pursuant to section 966(3) of the Municipal Public
Employees Labor Relations Law ("MPELRL"), 26 M.R.S.A. 966(3) (1988), and
Maine Labor Relations Board ("Board") Unit Determination Rule 1.16, the
Orono Teachers Association/MTA/NEA ("Association") filed an amended peti-
tion for unit clarification with the Board, seeking a determination of
whether Gary Greenleaf is a public employee within the meaning of section
962(6) of the MPELRL, 26 M.R.S.A. 962(6) (1988 & Supp. 1992), and there-
fore is a member of the support personnel unit, a unit of secretaries, food
service personnel, educational technicians, bus drivers and custodians
employed by the Orono School Committee ("School Committee"). In response
to the petition, the School Committee asserts that no changed circumstances
have occurred as required by section 966(3), and that in any case Mr.
Greenleaf, during his term of employment with the School Committee, was a
temporary employee within the meaning of section 962(6)(G).
Upon due notice an evidentiary hearing was scheduled for Tuesday,
October 6, 1992, in Augusta, Maine. Elmer Pinkham, Jr., Director, MTA
Uniserv District #7, represented the Association, and Paul S. Hurlburt
represented the School Committee. No one requested participation in the
proceeding as an interested party.
At the hearing the parties were afforded the opportunity to present
evidence and argument and to cross-examine witnesses. Upon completion of
the hearing, the parties waived oral argument and filed written briefs, the
last of which was received on November 17, 1992. The transcript of this
proceeding was completed on October 7, 1992; only the Association requested
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a copy.
Prior to commencement of the formal hearing, the parties met with the
hearing examiner in an informal conference. The stipulations reached by
the parties at that time have been incorporated herein. Participating in
the informal conference and/or appearing as witnesses, in addition to the
representatives of record, were:
on behalf of the Association:
Gary M. Greenleaf Custodian, Asa Adams Sch. (through
(6/16/92)
David St. Peter Custodian Supervisor, Asa Adams Sch.
Milton R. Wright Deputy Exec. Director, MTA
on behalf of the School Committee:
Richard A. Moreau Supertintendent of Schools, Orono
The following exhibits were offered by the petitioner:
P-1 1991-1993 collective bargaining agreement
P-2 pay stubs for Gary Greenleaf, in connection with payment of
wages and workers' compensation payments (11/11/91 through
9/22/92)
P-3 notice of vacancy (2/3/92) and job description for position
of custodian
P-4 termination letter dated June 11, 1992
Exhibits P-1, 3 and 4, as well as the pay stubs in Exhibit P-2 that reflect
payment of wages by the employer, were admitted into the record without ob-
jection. The respondent objected to admission of the workers' compensation
pay stubs that are included in Exhibit P-2. The hearing examiner admits
those documents on the ground that they are relevant to a determination of
Mr. Greenleaf's employment status.
The following exhibits were offered by the respondent without objec-
tion:
R-1 Association letter of July 30, 1992, requesting that Gary
Greenleaf grievance be held in abeyance
R-2 time cards for Gary Greenleaf (weeks ending 11/3/91 through
1/11/92)
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R-3 time cards for Gary Greenleaf (weeks ending 1/26/92 through
4/19/92)
JURISDICTION
The jurisdiction of the hearing examiner to hear this matter and to
make a unit clarification decision lies in 26 M.R.S.A. 966(3) (1988).
STIPULATIONS
In prehearing discussion the parties reached the following factual and
legal stipulations:
1. The Orono Education Association/MTA/NEA is the certified bargain-
ing agent, within the meaning of 26 M.R.S.A. 962(2) (1988), for a unit
of secretaries, food service employees, education technicians, bus drivers
and custodians.[fn]1 (Custodians and bus drivers were added to the unit in
1989.) The Orono School Committee is the public employer, within the
meaning of 26 M.R.S.A. 962(7) (Supp. 1992), of the employees in that
unit.
2. The parties are unable to agree on the bargaining unit status of
Gary Greenleaf, and there is no question concerning representation within
the meaning of 26 M.R.S.A. 966(3) (1988).
3. A collective bargaining agreement was signed by the parties on
September 23, 1991, retroactively effective as of July 1, 1991, to continue
____________________
1 The full description of the unit, contained in Article I of the 1991-93
agreement, is as follows:
1. Secretaries who have been in the employ of the Committee
for a period of six (6) months or longer, excluding any and
all persons employed in the Superintendent's immediate office
or employed by School Union #87.
2. Food Service employees who have been in the employ of the
Committee for a period of six (6) months or longer, excluding
the Director of Food Services.
3. Education Technician I, Education Technician II, Education
Technician III, who have been in the employ of the Committee
for a period of six (6) months or longer.
4. Bus drivers and custodians who have been in the employ
of the Committee for a period of six (6) months or longer.
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in effect until and including June 30, 1993, or until a succeeding agree-
ment is signed ("1991-93 agreement"). Mr. Greenleaf began his employment
with the School Committee as a custodian on October 28, 1991.
FINDINGS OF FACT
Upon review of the entire record, the hearing examiner makes the
following additional findings:
1. When Mr. Greenleaf began employment at Orono High School on
October 28, 1991, it was to fill in for Bob St. Louis, a custodian who was
out on workers' compensation. In his hiring interview with Tom Perry, the
high school principal, Mr. Greenleaf indicated that he was looking for per-
manent, full-time worK. Mr. Perry told him that he did not expect another
employee who was also out on workers' compensation to return, which would
open up a position into which Mr. Greenleaf could be worked. Contrary to
expectations, that custodian returned in December of 1991.
2. When Mr. St. Louis returned to work in January of 1992, Mr.
Greenleaf was asked to continue working for a few days to reduce Mr. St.
Louis' workload. Mr. Greenleaf worked through Tuesday, January 7, 1992,
and was then laid off.
3. Mr. Greenleaf was recalled to work by Bob Robinson, the principal
of Asa Adams School, because a custodian at that school had committed
suicide. At a meeting on Tuesday, January 21, 1992, with Mr. Robinson and
the custodian supervisor of Asa Adams, Mr. Greenleaf was asked to fill the
vacant position for a two-week trial period, after which he would be in-
formed as to whether the position was available to him on a permanent
basis. He was also told that employees in the support personnel unit who
worked at the high school would be given the opportunity to apply for the
position. (A decision by one of those employees to transfer to Asa Adams
would of course leave a vacancy to be filled at the high school. In turn,
a decision by an Asa Adams employee to transfer to the high school position
would again open an Asa Adams position.) The benefits package for per-
manent employment was also explained to him. Mr. Greenleaf began work at
Asa Adams School on that day, January 21, 1992.
4. Upon completion of the two-week trial period, Mr. Greenleaf con-
tacted Mr. Robinson regarding the permanent custodial position; Mr.
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Robinson, in turn, contacted Mr. Moreau, the Superintendent of Schools, who
stated that he could not hire Mr. Greenleaf on a permanent basis at that
time because he had forgotten to post the position in question. On
February 3, 1992, a notice of vacancy for the Asa Adams School custodial
position was posted for unit personnel. No one expressed an interest in
transferring into that position from the high school.
5. Sometime shortly after Mr. Greenleaf's two-week trial period was
up, another person (Tony Boucher) was brought in for a trial period at the
request of the superintendent. For a period of one week, both Greenleaf
and Boucher worked for the School Committee. Greenleaf's work included
building a wall for the school stage and some other non-janitorial work.
Mr. Boucher was terminated after one week for his unsatisfactory perform-
ance.
6. Mr. Greenleaf continued working as a custodian at Asa Adams
through February 26, 1992, when he left work due to a job-related injury
that had occurred earlier in February and from which he had not recovered.
Mr. Greenleaf received an indemnity payment (workers' compensation) for
the period of February 28 through March 8, 1992. He returned to work on
March 9, 1992, to the same position in which he had been working.
7. Upon Mr. Greenleaf's return to work this time, Mr. Robinson told
him that he wanted to give Mr. Greenleaf the full-time, permanent custodial
position with benefits and that he would contact the superintendent in this
regard. After doing so, Mr. Robinson informed Mr. Greenleaf that for
budgetary reasons, Superintendent Moreau had changed his mind about filling
the position. Mr. Greenleaf then contacted Mr. Moreau directly; Mr. Moreau
stated his intention to approach the School Committee about getting rid of
the bus fleet at the high school, removing the head custodian from bus duty,
and giving that person more custodial duties.[fn]2 Elimination of the bus
fleet at the high school never occurred. At some point during the summer,
a bus driver-custodian did become a full-time custodian at Asa Adams.
8. Mr. Greenleaf worked through Monday, April 13, 1992, when he again
left work due to work-related injuries. He received indemnity payments for
____________________
2 Some employees in the unit have both custodial and bus driver duties.
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the periods of April 28th through May 4th, May 12th through May 18th, and
May 26th through Sept. 28, 1992.
9. Under the 1991-93 agreement, full-time, year-round employees
receive thirteen paid holidays per year. School-year employees receive
eleven.
10. During Mr. Greenleaf's employment, he was paid for Veteran's Day
(11/11/91); Thanksgiving Day and the day after (11/28 and 11/29/91);
Christmas Day (12/25/91); New Year's Day (1/1/92); and President's Day
(2/17/92).[fn]3 During his employment at the high school, he was paid $6.30
per hour, the rate paid to non-probationary night custodians under the
1991-93 agreement. He also received this rate for night work at Asa Adams
School.
11. On June 10, 1992, while Mr. Greenleaf was out on workers' compen-
sation (his last day of actual work was April 13th), he contacted the
Superintendent's office to question why his workers' compensation payments
had not included payment for holidays.[fn]4 He was informed by the secretary
that he wasn't permanent and therefore was not entitled to it. When he
stated that he had always gotten holiday pay and asked why he wasn't
getting it now, the secretary stated that that was "up to Mr. Moreau."
12. A letter to Mr. Greenleaf from Mr. Moreau dated the next day,
June 11, 1992, stated:
This letter is to advise you of the fact that your employment as
a casual custodian with the Orono School Department will terminate
effective the last day of pupil attendance for the present school
year--i.e., Tuesday, June 16, 1992. Custodial assign ments [sic]
will be revised at that time to reflect summer work requirements,
and your services will no longer be required.
____________________
3 Exhibit R-2 does not contain a time card for Thanksgiving week; however,
the pay stub for work that week, included in Exhibit P-2, shows that Mr.
Greenleaf was paid for 40 hours. He did not get paid for Martin Luther
King's birthday, 1/20/92, since he was still on layoff on that date.
4 There are no pay stubs in the record for April 14th through April 27th,
during which Patriot's Day occurred; for May 5th through May 11th; or for
May 19th through May 25th, during which Memorial Day occurred. Apparently
Mr. Greenleaf received a reduced workers' compensation check for the two
weeks in which holidays occurred.
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Should the School Department determine that a regular position
will be established for the 92-93 school year, your application
will be considered at that time.
13. After Mr. Greenleaf received the June 11th termination letter, a
grievance was filed by the Association. By letter to Mr. Moreau dated July
30, 1992, the Association requested that the grievance be held in abeyance,
since it had decided to pursue "this issue" through a Board unit clarifica-
tion.
14. Article I, section B, subsections 3 and 4 of the 1991-93 Agree-
ment state:
3. "Probationary Period" shall mean the first six (6)
months of employment. All appointments shall be made for a
probationary period of six (6) months. The Committee shall
have the right to terminate the employment of any employee
during the probationary period without compliance with the
terms of this agreement.
4. "Permanent Employee" and "Employee" shall mean those
employees retained in service after the completion of the
probationary period.
15. Article IX, section A of the 1991-93 Agreement states:
A. "Seniority" is defined as an employee's length of
continuous service in the employ of the Orono School
Department. For the purpose of seniority, an employee
with a work year that is less than twelve (12) months
shall not be considered to have suffered a break in
service. An employee shall have no seniority during
the probationary period. On completion of the proba-
tionary period, seniority shall be retroactive to the
date of initial employment.
Section D of that article lists three considerations in determining who
will be laid off when a reduction in force occurs: skills and ability to
perform the work of the remaining positions in the affected job classifica-
tion; performance evaluations; and years of service.
16. Article XIX, Section A addresses sick leave and how it is accrued.
That section also lists the conditions under which paid sick leave will be
granted; "compensable or non-compensable injury or disease" is included in
the list. In addition, subsection 6 of section A states:
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6. Sick leave shall not be accrued after an employee is on
worker's compensation for one (1) month or when an employee
is on any approved unpaid leave.
Subsection 8 states:
8. An employee receiving sick leave with pay who simultane-
ously receives compensation under workmen's compensation laws
or through sick benefit plan financed in whole or in part by
his employer shall receive for the duration of such compensa-
tion only that portion of this regular sick leave allowance
which will, together with said compensation, equal his regular
salary.
DISCUSSION
This proceeding was conducted pursuant to 26 M.R.S.A. 966(3) (1988)
and Unit Determination Rule 1.16. Section 966(3) of the MPELRL states:
3. Unit clarification. Where there is a certified or
currently recognized bargaining representative and where the
circumstances surrounding the formation of an existing unit are
alleged to have changed sufficiently to warrant modification in
the composition of that bargaining unit, any public employer or
any recognized or certified bargaining agent may file a petition
for a unit clarification provided that the parties are unable to
agree on appropriate modifications and there is no question con-
cerning representation.
The parties have stipulated that three of the four requirements of section
966(3) have been met: the Association is the certified bargaining agent
for the support personnel unit, the parties have been unable to reach agree-
ment on Mr. Greenleaf's bargaining unit status, and no question exists
concerning representation.
Changed circumstances
The requirement for changed circumstances is a "threshold question"
in a unit clarification proceeding. MSAD No. 14 and East Grand Teachers
Association, No. 83-A-09, slip op. at 7, 6 NPER 20-14036 (Me.L.R.B. Aug.
24, 1983). "The petitioner, in unit clarification proceedings, bears the
burden of alleging the requisite change and, further, of establishing the
occurrence of said change in the unit then at issue." State of Maine and
MSEA, No. 82-A-02, slip op. at 16, 6 NPER 20-14035 (Me.L.R.B. June 2, 1983)
(Interim Order).
In its petition, the Association describes the alleged change as
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follows:
Mr. Gary Greenleaf has been employed accumulatively by the Orono
School Department for more than six months and is a public employee
under the meaning of 26 MRSA 962, 6F.
In its response to the petition, the School Committee states that the
petitioner has shown no change, and that it "is attempting to gain inclu-
sion of an employee who is specifically excluded by statute." (The issue
of changed circumstances was not further addressed in the post-hearing
briefs of either party.) The hearing examiner finds that sufficient change
has occurred for her to be able to address the substance of the petition.
Commonly, a change in unit composition through the unit clarification
procedure is sought in connection with a newly created job classification
or a change in job duties for an existing one. However, where a change in
duties occurs for one employee out of several in the classification (one
secretary begins performing confidential duties, for instance), the unit
composition changes only in the sense that that one employee is removed
from the unit. Likewise, unit composition may not change (except to the
extent that an individual employee is excluded) where one of several
employees in a job classification is excluded from the unit on the basis of
some other section 962(6) exclusion -- temporary employment or employment
for less than six months, for instance. Nevertheless, where parties are
unable to agree on the status of the employee, the unit clarification pro-
cedure is utilized to resolve the matter. AFSCME Council 93 and State of
Maine, No. 89-UC-07 (Me.L.R.B. Aug. 10, 1990), aff'd, No. 91-UCA-02
(Me.L.R.B. Feb. 12, 1991), aff'd, No. CV-91-143 (Me. Super. Ct., Ken.
Cty., Aug. 6, 1991), aff'd on other grounds sub nom. Bureau of Employee
Relations v. M.L.R.B., 611 A.2d 59 (Me. 1992).
The petition for clarification of Mr. Greenleaf's status falls into
this category. Since the record shows that Mr. Greenleaf was first em-
ployed by the School Committee on October 28, 1991, after formation of
the unit in 1989,[fn]5 and after the most recent collective bargaining agree-
____________________
5 Board files indicate that the unit was established through a Form 1
Agreement on Appropriate Unit dated January 11, 1989, filed with the Board
on January 25, 1989.
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ment between the parties was signed on September 23, 1991, the petition
meets the unit clarification requirements of the MPELRL and the Board's
Rules and Procedures.[fn]6 Accordingly, the substance of the petition will
be addressed.
Merits
Mr. Greenleaf began his employment with the School Committee on October
28, 1991. He was terminated on June 16, 1992. Shortly thereafter, the
Association filed a grievance on Mr. Greenleaf's behalf. Sometime later,
it requested that the grievance be held in abeyance, stating that it
intended to pursue "this issue" through a unit clarification. The
substance of the grievance was not offered into evidence by either party.
Consequently, it is unclear whether the Association was alleging that
someone other than Mr. Greenleaf should have been terminated (based on
seniority) or simply that Mr. Greenleaf's termination letter should have
included a statement of his right to recall under the 1991-93 Agreement
rather than the statement that his application would be considered if and
when a regular position was established for the coming school year. In
either case, it is only Mr. Greenleaf's status under the MPELRL at the time
of his termination that is in dispute here.
Section 962(6)(F) exclusion
Section 962(6)(F) of the MPELRL excepts anyone "who has been employed
less than 6 months" from the definition of "public employee" (only public
employees have bargaining rights under section 963). The statute does not
____________________
6 Rule 1.16(A) of the Board's Rules and Procedures, in addition to
reiterating the statutory requirements for a unit clarification, provides:
Unit clarification petitions may be denied if (1) the question
raised should properly be settled through the election process,
or (2) the petition requests the clarification of unit placement
questions which could have been but were not raised prior to the
conclusion of negotiations which resulted in an agreement con-
taining a bargaining unit description.
Thus, in the interest of contract stability, petitions requesting mid-term
resolution of unit placement questions are permitted only where changed
circumstances have occurred since the most recent contract was signed,
unless the right to file a unit clarification petition regarding an earlier
change was preserved during contract negotiations.
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define the word "employed." In calculating time employed, the Board does
not require that an employee work six consecutive months in order to
satisfy the six-month requirement,[fn]7 but it also does not count the breaks
in service themselves (i.e., time during which a person is laid off).[fn]8
In arguing that Mr. Greenleaf had met the requirement for six months
of employment by the time he was terminated, the Association offers two
alternatives for calculating time employed: the time between Mr. Green-
leaf's initial date of hire (October 28, 1991) and his termination (June
16, 1992), and that time minus the days he was laid off in January. Even
if layoff time is not counted, argues the Association, the six-month
requirement was met by the time Mr. Greenleaf was terminated in June. In
calculating time employed, the Association counts the time during which Mr.
Greenleaf was injured and receiving workers' compensation benefits.
The School Committee argues that counting the time during which Mr.
Greenleaf was out on workers' compensation would "circumvent the intended
purpose of the six month period of `trying out' an employee." The School
Committee also points to the Black's Law Dictionary definition of
"employed": "both the act of doing something and the being under contract
or orders to do it." Thus, the School Committee does not consider Mr.
Greenleaf to have been "employed" during the times when he was out on
workers' compensation, because he was not actually performing work duties.
The issue of whether time spent out on workers' compensation should be
counted as time employed under section 962(6)(F) is one of first impres-
sion. The purpose of the MPELRL, as stated in section 961, is to recognize
the right of public employees to join labor organizations and to be repre-
sented by them for the purposes of collective bargaining. Accordingly,
exceptions to the definition of "public employee" in section 962(6) are
narrowly construed in order to avoid unnecessarily depriving employees of
those rights. The meaning of the exclusionary words themselves, and the
____________________
7 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).
8 AFSCME Council 93 and State of Maine, No. 89-UC-07 (Me.L.R.B. Aug. 10,
1990), aff'd, No. 91-UCA-02 (Me.L.R.B. Feb. 12, 1991), aff'd, No. CV-91-143
(Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd on other grounds sub nom.
Bureau of Employee Relations v. M.L.R.B., 611 A.2d 59 (Me. 1992).
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legislative history of the exclusion, must of course be the primary focus;
in fact, little or nothing else is available for guidance. Since the
National Labor Relations Act contains no six-month requirement, there is
no National Labor Relations Board ("NLRB") case law to which the hearing
examiner may look.[fn]9 In addition, as far as the hearing examiner is aware,
none of the public sector collective bargaining statutes in the 27 or so
other states that have them contain a six-month requirement.[fn]10
For several reasons, the hearing examiner finds that the time during
which Mr. Greenleaf was absent from work due to his job-related injury
should be counted in calculating the time he was employed. First, the
record evidence itself indicates that Mr. Greenleaf was terminated from
employment on only two occasions: during January of 1992, when another
employee, Mr. St. Louis, returned to work, and again in June of 1992, at
the end of the school year. If Mr. Greenleaf's employment was terminated
on other occasions, the record does not reflect them.
Second, common usage of the term "employed" suggests that once a person
is hired, he/she is employed until affirmatively terminated. As the School
Committee has pointed out, Black's Law Dictionary (6th Ed., 1990) defines
the term as "both the act of doing a thing and the being under contract or
orders to do it." However, a review of the case cited in support of that
definition[fn]11 in earlier editions of Black's makes it clear that it was
offered in connection with a dispute over whether a tax on operators of
____________________
9 There is NLRB precedent regarding persons out on workers' compensation
in connection with voter eligibility. The same test is used for persons
with on-the-job injuries as is used for persons out due to other illnesses
or injuries, vacation, or leaves of absence: At the time of the election,
did the person have a reasonable expectation of returning to work? Advance
Waste Systems, Inc., 139 LRRM 1398 (N.L.R.B. Mar. 31, 1992); Atlanta
Dairies Cooperative, Inc., 283 NLRB 327 (Mar. 25, 1987); Red Arrow Freight
Lines, Inc., 278 NLRB 965 (Mar. 13, 1986).
10 A handful of states prohibit probationary employees from bargaining
collectively; there is a substantial difference between the six-month
requirement in Maine's collective bargaining laws and the probationary
exclusion found in some statutes elsewhere. This difference will be
explored in connection with the School Committee's argument regarding the
intent of section 962(6)(F).
11 State v. Birmingham Beauty Shop, 198 So. 435 (Ala. 1940).
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beauty shops "and on each operator so employed," could be assessed against
operators of a particular shop who were independent contractors to the
owner and not the owner's employees. (The question was answered in the
affirmative.) The case in no way stands for the proposition that to be
employed, one must be actually performing work. In addition, Black's pro-
vides another definition of the word "employed": "to give employment to;
to have employment." Also, according to Black's, to "employ" is to "hire."
According to Roberts' Dictionary of Industrial Relations (3d Ed., 1986),
the Bureau of Labor Standards classifies as "employed":
Any individual 16 years of age or older who, during the week of
the Current Population Survey, worked for pay; worked 15 hours or
more in a family-operated enterprise without pay; or was temporar-
ily absent from the job because of illness, vacation, labor dis-
pute, or other similar reasons.
The hearing examiner assumes, in spite of the definition of "employed"
offered by the School Committee (actually performing work duties), that the
School Committee considers persons who are absent due to a holiday, an
illness, a vacation or other temporary absence to be "employed." The
question is whether and under what circumstances an absence due to a work-
related injury should be treated as a temporary absence rather than a ter-
mination of employment. The workers' compensation law itself is of some
help in this regard. Among other things, it provides:
Upon petition of an injured employee, the commission may
require, after hearing, that the employee be reinstated as required
by this section.
1. Reinstatement rights. When an employee has suffered a
compensable injury, he is entitled, upon request, to reinstate-
ment to his former position if the position is available and
suitable to his physical condition. If the employee's former
position is not available or suitable, he is entitled, upon re-
quest, to reinstatement to any other available position which is
suitable to his physical condition.
Reinstatement rights are for a year from the date of injury, three years if
the employer has over 200 employees. 39 M.R.S.A. 66-A (1989 & Supp.
1992).[fn]12 Section 111 of the law states, in part: "No employee shall be
____________________
12 The newly enacted workers' compensation law, relevant portions of which
will go into effect on January 1, 1993, contains a provision that is
identical in substance. P.L. 1992, c. 885, A-8, p. 46 (to be codified as
39-A M.R.S.A. 218(1)).
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discriminated against by any employer in any way for testifying or assert-
ing any claim under this Act." 39 M.R.S.A. 111 (1989 & Supp. 1992).[fn]13
The case law in connection with these provisions makes it clear that an
absence due to a work-related injury does not itself terminate employment
for the employee. In fact, "[t]hat an employee who is injured in the
course of his employment has a right not only to compensation by also to
time off necessary to complete recovery is implicit in the Act." Lindsay
v. Great Northern Paper Co., 532 A.2d 151 (Me. 1987). Although termination
subsequent to the injury in many instances is unlawful, "an employer is
not required by section 111 to retain an employee, who has been injured on
the job, in the status of an employee indefinitely." Brown v. State of
Maine AMHI, No. 91-01 (Me. W.C.C. App. Div. Jan. 15, 1991). [Emphasis
added.][fn]14
Finally, the School Committee's own actions with respect to other
custodial employees suggest that Mr. Greenleaf was still employed during
the periods he was absent due to his work-related injuries (until his ter-
mination in June of 1992). When Mr. Greenleaf was first hired and began
work on October 28, 1991, it was to fill in for another custodian who was
out on workers' compensation. The School Committee argues, and properly
so, that Mr. Greenleaf was a temporary employee from October 28th through
January 7, 1992, because he was only filling in for another employee who
was temporarily absent. In addition, in connection with possible permanent
employment in the near future, Mr. Greenleaf was told that there was another
employee out on workers' compensation who was not expected to return. That
employee's health improved, however, and he returned to work. The School
Committee cannot have it both ways. If it is the School Committee's
policy that employees injured on the job will not be terminated but rather
____________________
13 There is a parallel provision in the new workers' compensation law.
P.L. 1992, c. 885, A-8, p. 75 (to be codified as 39-A M.R.S.A. 353).
14 The hearing examiner does not mean to suggest that Mr. Greenleaf's ter-
mination in June of 1992 was or was not unlawful under the workers' compen-
sation law. The hearing examiner has no authority to rule on the Associ-
ation's allegation in its reply brief that an unlawful termination may have
occurred. That allegation must be taken to the Workers' Compensation
Commission.
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may return to work as soon as they are able,[fn]15 then Mr. Greenleaf's injury-
related absences cannot reasonably be called terminations.[fn]16
The School Committee's second argument is that the purpose of the six-
month requirement (to give employers a chance to "try out" employees) would
be circumvented if the time during which Mr. Greenleaf received workers'
compensation is counted in determining whether the six-month requirement
has been met. The School Committee is confusing the six-month requirement
with the requirement in many municipalities that an employee satisfactorily
complete a probationary period. The School Committee's position is not
supported by the legislative history of the six-month exclusion.
In the original version of the MPELRL, effective October 1, 1969, sec-
tion 962(6)(F) excluded any person "on a probationary or provisional sta-
tus, or who is a temporary, seasonal, on-call or part-time employee." In a
special session of the Legislature shortly thereafter, an amendment was
offered: section 962(6)(F) would be amended to exclude any person "who has
served less than 6 months on a probationary or provisional status;" and new
(G) would exclude anyone "who is a temporary, seasonal, on-call or part-time
employee." Prior to adoption of the amendment, (F) was further amended to
exclude simply anyone "who has been employed less than 6 months."[fn]17
As the hearing examiner pointed out in AFSCME Council 93 and State of
Maine (No. 89-UC-07), it is very likely that one of the reasons for the
1970 amendment to section 962(6)(F) was the fact that probationary periods
are not uniformly six months for employees covered by the MPELRL. For
instance, had the original "probationary" exclusion remained in the statute,
teachers, who at that time, by statute, served a probationary period of up
____________________
15 This policy is not surprising in light of sections 66-A and 111 of the
Workers' Compensation Act.
16 Article XIX of the 1991-93 Agreement also reflects the reality that
persons out on workers' compensation are still "employed." Under that
article, unit members continue to accrue sick leave for the first month of
absence, and can use accumulated sick leave to supplement their workers'
compensation payments to equal their regular salary. If persons injured on
the job were not still employed, bargaining agents would not have the
authority to negotiate these benefits on their behalf.
17 In addition, the exclusion of part-time employees was dropped from (G).
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to three years,[fn]18 would have had no bargaining rights for that three-year
period. More recent legislative enactments support the position that the
six-month requirement is not a "probationary" requirement. Effective in
1989, the Legislature established that probationary periods for municipal
employees may be up to six calendar months or the length of time in effect
in a municipality on January 1, 1984, whichever is greater. Since 1991, a
longer probationary period not to exceed one year may be bargained for
police officers (or established unilaterally by the employer where there is
no bargaining agent). 30-A M.R.S.A. 2701 (Supp. 1992).[fn]19
Collective bargaining under the State Employees Labor Relations Act
("SELRA"), which covers executive branch employees of the State, provides
another example of the fact that the six-month requirement and probation
are not synonymous. SELRA contains the same six-month exclusion that the
MPELRL contains. 26 M.R.S.A. 979-A(6)(E). Separate and apart from that
provision, Maine's civil service laws require any employee newly appointed
to a permanent position to serve a probationary period of six months. The
employer has the authority to extend probation for up to an additional six
months if necessary. 5 M.R.S.A. 7051(5) (1989). Since the six months
required by SELRA will have been served, employees on extended probation
are bargaining unit members covered by the appropriate collective bargain-
ing agreement. They simply do not have "just cause" protection until they
____________________
18 20 M.R.S.A. 161(5) (1964). The statutory probationary period for
teachers has since been reduced to two years. 20-A M.R.S.A. 13201
(Supp. 1992).
19 The 1991 change was enacted to take into account the fact that police
officers undergo 12 weeks of training at the Maine Criminal Justice Academy
before beginning actual law enforcement duties. Statement of Fact, L.D.
1127, First Regular Session - 1991.
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have satisfactorily completed probation.[fn]20
In sum, neither common usage of the term "employed," the legislative
history of the six-month exclusion, the Workers' Compensation Act, nor the
School Committee's own practices with respect to employees injured on the
job, supports the School Committee's assertion that Mr. Greenleaf had been
employed less than six months (26 weeks) when his employment was terminated
as of June 16, 1992. He actually performed work for a total of 21 weeks
and was absent due to his work injuries for an additional nine weeks.[fn]21
Section 962(6)(G) exclusion
Section 962(6)(G) of the MPELRL excludes from collective bargaining
anyone "[w]ho is a temporary, seasonal or on-call employee." 26 M.R.S.A.
962(6)(G) (1988 & Supp. 1992). In order to determine whether an employee
is temporary, the hearing examiner must determine, "in the totality of the
circumstances, whether the employee involved may be said to have had a
reasonable expectation of continued employment." Council 93, AFSCME v.
Town of Sanford, No. 90-07, slip op. at 14 (Me.L.R.B. June 15, 1990).
In AFSCME Council 93 and State of Maine, No. 89-UC-07, slip op. at 39
(Me.L.R.B. Aug. 10, 1990), aff'd, No. 91-UCA-02 (Me.L.R.B. Feb. 12, 1991),
aff'd, No. CV-91-143 (Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd on
other grounds sub nom. Bureau of Employee Relations v. M.L.R.B., 611 A.2d
59 (Me. 1992), factors were listed that might be relevant to such a deter-
____________________
20 The Law Court took note of these facts in Bureau of Employee Relations
v. M.L.R.B., 611 A.2d 59 (Me. 1992), and implicitly found that in yet
another situation probation and the six-month requirement are not one in
the same. In that case, the State argued that service in a temporary capa-
city could not be counted toward the six-month requirement. The State's
argument was premised on the fact that probation for State employees begins
when they are appointed to a permanent vacancy, and on its assumption that
probation and the six-month requirement must coincide (in essence, are
synonymous). If the Board counted time as a temporary employee toward
satisfaction of the six-month requirement, the State argued, employees who
were later appointed to permanent vacancies would become bargaining unit
members even though they hadn't completed probation. The Law Court
rejected the State's position and ruled that time spent as a temporary
employee should be counted toward satisfaction of the six-month require-
ment.
21 Even if the weeks for which Mr. Greenleaf provided no workers' com-
pensation pay stubs are not counted, he was employed for 27 weeks before
being terminated: 21 weeks of actual work and six weeks of compensated
absence.
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mination:
1) the degree of control the employer has over events surrounding
the hiring of the employee in question; 2) the existence of a
definite termination date or an event that will trigger termina-
tion; 3) the employer's past experience with hiring similarly
situated employees into permanent positions (that is, the employ-
er's hiring preference policy); 4) what employees are told regard-
ing future employment when they are hired; 5) the stability of
the employer's labor requirements and the extent to which the
employer is dependent on the employees at issue on a continuing
basis; and 6) the duration of the fixed-term appointment and/or
whether employees are hired for successive, fixed-term appoint-
ments.
Using these factors, the hearing examiner finds that for Mr. Greenleaf's
first period of employment with the School Committee, from October 28,
1991, through January 7, 1992, he was a temporary employee. He was hired
to fill in for Mr. St. Louis, an employee who was absent due to a work-
related injury, and he was informed of that fact at the time he was hired.
Although he was not (and could not be) given a definite termination date,
the event that would (and did) trigger his termination was the return of
Mr. St. Louis. Mr. Greenleaf was told that another employee who was also
out with an injury was unlikely to return, and therefore that there might
be a permanent opening in the near future into which he could be worked.
However, that is irrelevant to the purpose for which he was actually
hired -- to fill in for Mr. St. Louis. Unlike the employees in AFSCME
Council 93 and State of Maine (No. 89-UC-07), Mr. Greenleaf was not part of
a "floating labor pool" of employees filling in for a succession of perma-
nent employees on leaves of absence until a permanent vacancy occurred.
When Mr. Greenleaf was hired the second time, on January 21, 1992, it
was not to fill in for an injured employee -- it was to replace an employee
who had committed suicide. Consequently, there could have been no expec-
tation that that employee would return to his position. Mr. Greenleaf was
informed of the benefit package for permanent employment, and was told that
he would be working for a two-week "trial period," after which he would be
informed as to whether or not the position was his. The School Committee
characterizes this statement as evidence that Mr. Greenleaf had no reason-
able expectation of continued employment. The School Committee also
insists that only the Superintendent has the authority to hire employees
into permanent vacancies. Consequently, it argues, his hiring by the
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principal of Asa Adams School had to have been on a temporary basis.
Finally, the School Committee asserts that when the position in question
was posted, it was posted only for unit employees "and not for temporary
employees like Mr. Greenleaf." None of these arguments is persuasive.
First, the employer's establishment of a probationary (or in this case,
"preprobationary") period, of whatever length, does not make an employee
"temporary." If that were the case, teachers, who are on probation for up
to two years, would not have bargaining rights during that whole period.
Mr. Greenleaf was not hired for a fixed term of two weeks; he was hired
with the understanding that he would have to work satisfactorily for two
weeks before the position was his. Even if Mr. Greenleaf was not
"permanent" at the time he was hired, either because of the two-week
trial period or because it was not the superintendent who had hired him,
"temporary" and "nonpermanent" are not synonymous. AFSCME Council 93 and
State of Maine, No. 89-UC-07, slip op. at 37-38 (Me.L.R.B. Aug. 10, 1990),
aff'd, No. 91-UCA-02 (Me.L.R.B. Feb. 12, 1991), aff'd, No. CV-91-143
(Me. Super. Ct., Ken. Cty., Aug. 6, 1991), aff'd on other grounds sub nom.
Bureau of Employee Relations v. M.L.R.B., 611 A.2d 59 (Me. 1992).
Even if the hearing examiner somehow construed Mr. Greenleaf's two-week
trial period to be temporary employment, once that period was over, Mr.
Greenleaf was no longer temporary. When he inquired about the position in
question after satisfactorily completing the two weeks, he was not told
that the position was going to be left vacant. Superintendent Moreau told
him simply that he could not hire him on a permanent basis yet because he
hadn't posted the position for unit employees.[fn]22 The position was posted on
February 3rd. Had someone in the unit applied for the position, that per-
son's position would then have been available. Consequently, the fact that
the original position was posted for unit personnel only is irrelevant.
Some custodial position would be vacant, and there was an intention to
fill it.
Sometime between February 3rd and March 9th, when Mr. Greenleaf re-
turned to work after being absent for a week due to his work-related
injury, Mr. Moreau changed his mind about filling the custodial position on
____________________
22 The posting of the vacancy for unit personnel is required under the
parties' 1991-93 Agreement.
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a permanent basis. In a meeting with Mr. Greenleaf, he expressed his
intent to approach the School Committee about getting rid of the high
school bus fleet, removing the head custodian from bus duty, and giving
that person more custodial duties. Mr. Greenleaf was not terminated at
that time, but continued to work until his second workers' compensation
absence began in April. He did not receive a termination notice until
June of 1992, just prior to the end of the school year.
The fact that Mr. Moreau changed his plans regarding the size of the
custodial staff does not, after the fact, turn Mr. Greenleaf's status into
that of a temporary employee. The result would not be different even if
Mr. Greenleaf had been given his end-of-the-school year termination notice
in March when the change in plans occurred, as the School Committee alleges.
It is not uncommon for employers to reduce the size of their staffs, es-
pecially in these tough economic times. When that occurs, employees are
simply laid off. How bargaining unit members are treated is instructive.
Certainly unit members who receive layoff notices do not suddenly become
temporary employees without bargaining rights. They are laid off pursuant
to the provisions of their collective bargaining agreement, and have what-
ever recall rights are provided in that agreement.
In sum, the hearing examiner finds that Mr. Greenleaf's status changed
from temporary to non-temporary in February of 1992. Since at the time he
was terminated in June he had been employed for six months, Mr. Greenleaf
was a public employee within the meaning of section 962(6) of the MPELRL.
Unit status
The School Committee brief contains a variety of arguments in connec-
tion with provisions in the 1991-93 Agreement that address permanent
employment, probation, seniority, and the School Committee's right to
reduce its work force. None of these provisions is relevant to the
question presented by the Association's petition: Was Mr. Greenleaf a
public employee at the time he was terminated? Whether or not he had
completed probation as that term is defined in the 1991-93 Agreement and
therefore was a unit member, is another matter, and not for the hearing
examiner to decide. Presumably the Association will reactivate its
grievance so that a determination can be made regarding Mr. Greenleaf's
status under the contract at the time of his termination.
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ORDER
On the basis of the foregoing stipulations, findings of fact and
discussion, and pursuant to the provisions of 26 M.R.S.A. 966(3) (1988),
it is hereby ORDERED:
That at the time he was terminated effective June 16, 1992,
Mr. Gary Greenleaf was a public employee within the meaning
of 26 M.R.S.A. 962(6) (1988 & Supp. 1992).
Dated at Augusta, Maine, this 7th day of December, 1992.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Judith A. Dorsey
Designated Hearing Examiner
The parties are hereby advised of their right, pursuant to 26 M.R.S.A.
968(4) (Supp. 1992), to appeal this report to the Maine Labor Relations
Board. To initiate such an appeal, the party seeking appellate review
must file a notice of appeal with the Board within fifteen (15) days of
the date of issuance of this report. See Board Rules 1.12 and 7.03 for
full requirements.
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