I. Statement of the Case

Maine Service Employees Association, SEIU Local 1989 (“Union”), filed this prohibited practice complaint against the State of Maine (“Employer” or “State”), alleging that the State discriminated against a bargaining unit employee based on protected union activity, in violation of the State Employees Labor Relations Act (“Act”), by not promoting the employee on three separate occasions.  The Maine Labor Relations Board (“Board”) unanimously finds insufficient evidence of unlawful discrimination or interference with respect to two of the jobs in question, and a majority of the Board finds that there is insufficient evidence of unlawful discrimination or interference with respect to the third job.

            II. Procedural History

The Union filed a prohibited practice compliant with the Board on July 29, 2022.  The Executive Director of the Board reviewed the complaint and issued a letter on September 8, 2022, finding sufficient for hearing the Union’s claimed violations of 26 M.R.S.A. § 979-C(1)(A) and (B). [1]  Alternate Board Chair Shari Broder, Esq., conducted a prehearing conference on December 13, 2022, and issued a Prehearing Conference Memorandum and Order the following day.  An evidentiary hearing was held on March 1, March 3, April 26, and April 27, 2023, presided over by Shari Broder, Esq., Alternate Chair, with Michael Miles, Employer Representative, and Roberta de Araujo, Esq., Employee Representative.  The Union was represented by Tom Feeley, Esq. and the State was represented by Nicholas P. Laskey, Esq. The parties were given a full opportunity to examine and cross-examine witnesses, introduce evidence and to make their arguments. The parties were also permitted to file post­hearing briefs, which were submitted on July 10, 2023.

            III. Findings of Fact

In 2015 the Union bargaining unit employee at issue was hired as a Transportation Worker I with the State’s Department of Transportation (“DOT”).  In 2019 the employee was promoted to Transportation Worker II, and in 2021 he was promoted to Transportation Worker III. [2]  In January 2020 the employee became a shop steward for the Union.  Just prior to this, upon learning of his plans, the employee’s

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immediate supervisor told him that in his 13 years at DOT he had “never seen a steward promote.” At the time the supervisor made that statement it was accurate as to stewards within the DOT region in which both the employee and supervisor worked.  An employee who had ceased being a steward six years earlier was promoted in the same DOT region during the 13-year period the supervisor referenced, and a steward in the same region was promoted subsequent to the three hiring decisions at issue in the complaint. In another region, with a different human resources manager, four former stewards had been promoted. 

Prior to becoming a steward, the bargaining unit employee had satisfactory performance evaluations and had never been disciplined or investigated for alleged misconduct. In his role as shop steward, the bargaining unit employee interacted with the human resources manager for his region on numerous occasions, including representing other employees during investigations.

In August of 2020, the employee went out on workers’ compensation leave.  On September 4, 2020, he had an interaction over the phone in which he used the “F-word” with a workers’ compensation employee.  The workers’ compensation employee reported the interaction to human resources at DOT.  Immediately afterward, the bargaining unit employee was contacted by the human resources manager for his region, who self-reportedly “sassed” the employee. The bargaining unit employee testified credibly that the human resources manager spoke to him in an extremely harsh and unprofessional manner during that call. The bargaining unit employee reported this interaction to his Union representative, who in turn contacted the human resources manager and her supervisor.  On or about September 9, 2020, the human resources manager contacted the bargaining unit employee and told him that he should come to human resources first “instead of running to the union with everything.”   

At an October 2020 meeting at the Ashland DOT camp, while the bargaining unit employee was still out on workers’ compensation leave, the human resources manager disclosed the employee’s workers’ compensation and medical information to a number of other bargaining unit employees. There was credible evidence that the human resources manager made additional disclosures of the bargaining unit employee’s medical condition and workers’ compensation information to others, in different contexts, as well as opining that the employee’s workers’ compensation claims were false.

The bargaining unit employee returned to light duty work with DOT in December of 2020.  During this time, he reported his immediate supervisor for improperly directing employees to use a chain hoist that had been deemed structurally unsound and had been “tagged out.”  Later that month, the employee received negative feedback on his performance evaluation, including the comment that he “… has been jumping the chain of command and has not been doing a good job going through the correct channels.”  Additionally, for the first time he was marked as “Falls Below Expectations” in one category of his performance evaluation, Judgment/Professionalism, with the comment that the bargaining unit employee “… has had some issues that he has jumped the chain of command and needs to use the chain of command when presenting issues and be more professional and courteous when dealing with problems.”  It is unclear whether the human resources manager or the bargaining unit employee’s immediate supervisor had added the comments, but the evidence supports a finding that the comments concerned either the bargaining unit employee going to the union first instead of human resources, the bargaining unit employee going to workers’ compensation before human resources, or both.  The bargaining unit employee contacted his Union representative who in turn contacted the human resources manager, who agreed to remove the comments regarding the chain of command.  After follow-up from the Union regarding the correction still not being made, the human resources manager made the changes and submitted the performance evaluation to the bargaining unit employee’s immediate supervisor to sign.  In what was claimed to have been an administrative oversight, the immediate supervisor did not sign and return the amended performance evaluation until after the filing of the Union’s complaint in this matter.  The uncorrected version of the

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bargaining unit employee’s performance evaluation was the version that was passed along to the three different hiring panels, or at least to the chair of each panel.

On December 15, 2020, the bargaining unit employee’s immediate supervisor was notified that he was under investigation for the incident with tagged out equipment that the bargaining unit employee had reported. [3]  On December 21, 2020, the bargaining unit employee returned to full duty work. Upon his return, his supervisor assigned him to a different truck than the one he had previously been using since the beginning of his employment with the agency.  Various justifications were offered for the reassignment, including that the bargaining unit employee had opted out of overtime, and also that the reassignment was due to a cross-contamination policy regarding COVID-19.  Although not strictly required by DOT policies, there was testimony that there were important reasons to keep a user assigned to the same truck, for example the user knowing the capabilities of the truck and being familiar with the route to which the truck is designated.  The bargaining unit employee complained to human resources personnel that the denial of use of his former truck was retaliation by his supervisor for his previously reported safety violation.  In January 2021, the bargaining unit employee was returned to his previously assigned truck.

In September 2021, the bargaining unit employee was assigned light duty work at the DOT Presque Isle office because of a work-related injury.  The employee had not received notice of COVID-19 protocols for the office and unknowingly violated them by not wearing a mask despite not being vaccinated.  The bargaining unit employee was subsequently investigated for violating the office’s masking policy.  There was testimony regarding an alleged double standard towards the employee with respect to the masking policy (testimony that the human resources manager routinely did not wear a mask in the office and said publicly that she was not vaccinated), and that the human resources manager had reportedly said to others that the bargaining unit employee was not vaccinated and that she was going to “take care of it” and that he would ultimately be disciplined for violating the masking policy.  The bargaining unit employee never received any discipline following the investigation because of his apology and plausible explanation of ignorance of the policy.

The hiring decisions at issue were made January through May 2022. For the positions in question, the parties’ collective bargaining agreement requires that the employer hire the most senior candidate if the qualifications and abilities of the top candidates are substantially equal.

The bargaining unit employee and two other individuals interviewed for a Transportation Crew Leader position in Presque Isle on January 5, 2022.  The hiring panel consisted of three voting members accompanied by the human resources manager, who was present to ensure compliance with employment laws.  On January 13, 2022, the chair of the hiring panel, a superintendent of operations, in a conversation with the human resources manager voiced his interest in the bargaining unit employee as a candidate for the position.  The human resources manager replied: “[W]e've had a rough year, if you hire him, this year won't be any better.”  The superintendent of operations testified that, in the context of his relationship with the human resources manager, he took this statement as a threat.  He reported this interaction to his immediate supervisor soon after. The superintendent’s immediate supervisor verified that the superintendent had been upset and had reported to him an interaction with the human resources manager in which she was weighing in on the candidates.  The supervisor reassured the superintendent that the human resources manager was not a voting member of the hiring panel and told him it shouldn’t affect the panel’s decision.  The superintendent also claims to have reported the human resources manager’s interference in the hiring process to his second-level supervisor on March 1, 2022, who roughly confirmed the discussion.

The other hiring panel member who testified did not recall any pressure from human resources to not select the bargaining unit employee.  He recalled a unanimous decision among the three panel members to select the candidate who was ultimately offered the position.  He also recalled that this decision was based on the

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interview.  The State’s written justification for the hiring decision cited the selected candidate’s knowledge regarding a work plan and managing people, as well as his prior experience as a DOT supervisor at a higher level than the bargaining unit employee.  Despite his 20 years of prior service, the selected candidate had no seniority because he had left State service for a number of years.  Of the three candidates, the bargaining unit employee had the least supervisory experience, and he did not have the most seniority.  On January 31, 2022, the bargaining unit employee was notified of his non-selection for the position.

On April 28, 2022, the bargaining unit employee interviewed for a Transportation Crew Leader position in Ashland.  The hiring panel consisted of three voting members, with the same human resources manager participating again in her advisory capacity.  One of the panel members was the bargaining unit employee’s immediate supervisor.  The hiring panel chair, who was from another DOT region, testified that he did not recall any pressure to not hire the bargaining unit employee. The panel chair testified that the selected candidate had interview answers that were more complete, concise and satisfying, and in responding to the panel’s questions he had seemed more like a crew leader.  The State’s hiring justification notes the selected candidate’s superior interview answers regarding winter storm preparation. Of the two candidates interviewing for the job, the bargaining unit employee had the least seniority.  On May 6, 2022, the bargaining unit employee was notified of his non-selection for the position.

The third job the bargaining unit employee applied for was a Transportation Crew Supervisor position in Presque Isle.  Only two candidates received an interview, which was held on May 11, 2022.  Again, the hiring panel consisted of three members, with the same human resources manager sitting in on the process.  The two voting members of the panel who testified each stated that they did not recall any pressure from the human resources manager to not select the bargaining unit employee.  The panel chair testified credibly that it was evident in the interview that the selected candidate was already in the position at issue (though in another region), that “he knew the job very well,” and that the panel members were in agreement that he had “nailed” all the interview questions.  According to the panel chair, the selected candidate was everyone’s top choice “just based on the interview.”  It was also uncommon for individuals to promote into a Transportation Crew Supervisor position from the Transportation Worker III position held by the bargaining unit employee.  The State’s justification for the hiring decision noted that the selected candidate had already been doing the same job for four years in another region and knew how to institute a workplan.  Of the two candidates, the bargaining unit employee had the least seniority.  On May 18, 2022, he was notified of his non-selection for the position. 

            IV. Analysis

A. Jurisdiction

At all times relevant, the Union’s bargaining unit employee was a State employee within the meaning of 26 M.R.S.A. § 979-A(6), the Union was a bargaining agent within the meaning of 26, M.R.S.A. § 979-A(1), and the State was a public employer within the meaning of 26 M.R.S.A. § 979-A(5). The Board's jurisdiction to hear this case and to issue a decision and order derives from 26 M.R.S.A. § 979-H.

B. Discrimination 

Public employers, their representatives and their agents are prohibited from: “Encouraging or discouraging membership in any employee organization by discrimination in regard to hire or tenure of employment or any term or condition of employment.” 26 MRSA § 979-C(1)(B).  To prevail on a discrimination claim, the complainant has the burden of proving by a preponderance of the evidence that: (1) the employee

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engaged in protected activity; (2) the decision-makers knew of the employee's participation in protected activity; and (3) there is a relationship, or causal connection, between the protected activity and the adverse employment action against the employee.  Fraternal Order of Police v. York County, Nos. 18-10 & 19-02 (July 24, 2019); Holmes v. Town of Old Orchard, No. 82-14 (Sept. 27, 1982) (Board adopted the three-part test established in Wright Line and Bernard R. Lamoureux, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), for issues that turn on employer motivation.).  The Board first examines whether the complainant has put forward a prima facie showing sufficient to support the inference that protected conduct was a “substantial or motivating factor in the employer's decision.” Ritchie v. Town of Hampden, No. 83-15, slip op. at 4-5 (July 18, 1983); Casey v. Mountain Valley Educ. Ass'n. and SAD 43, No. 96-26 & 97-03, slip op. at 27-28.  Proof of such unlawful motivation can be based on direct evidence or can be inferred from circumstantial evidence based on the record as a whole.  See Maine State Law Enforcement Association and Timothy McLaughlin v. State of Maine, Maine Department of Corrections, No. 13-15, slip op. at 9-10 (October 31, 2013).  Evidence of the timing of an adverse employment action, without more, is insufficient to establish a prima facie case for discrimination. See MSEA v. Maine Turnpike Authority, 12-08, slip op. at 23-24 (February 12, 2013). 

If the complainant meets its burden of proof to establish a prima facie case, the employer may defend against the claim by proving by a preponderance of the evidence that the adverse employment action at issue was based on unprotected activity as well, and that the complainant would have suffered the adverse employment action regardless of the protected conduct.  Maine State Employees Ass'n v. State Dev. Office, 499 A.2d 165, 167 (Me. 1985).  If the employer meets this burden, then the claim fails unless the complainant can demonstrate that the alternate reasons offered by the employer for the adverse action are merely pretextual.  See Teamsters v. Town of Kennebunk and MLRB, CV-80-413 (Me. Super. Ct., Kennebec Cty., October 18, 1985) (citing NLRB v. Great Dane Trailers, 333 U.S. 26 (1967)).

The Act provides for a strict six-month statute of limitations for prohibited practice claims.  26 MRSA § 979-H(2)(“no hearing may be held based upon any alleged prohibited practice occurring more than 6 months prior to the filing of the complaint with the executive director.”).  However, a party may introduce evidence of events that fall outside of this period for the purpose of shedding light on the character of events happening within.  Stephen Duren v. Maine Education Association, No. 09-06, slip op. at 9 (June 25, 2009)(“While evidence of events outside the six-month period may be used to shed light on the acts occurring within the six-month period, a party may not rely on those events to prove the illegality of conduct occurring within the six-month period.”).  For example, evidence of an alleged prior prohibited practice can be used to help establish an employer’s anti-union animus.  See e.g., In Re Wilmington Fabricators, Inc., 332 NLRB 57, 59 (2000).

1. Transportation Crew Leader position - Presque Isle

The hiring decision for the Transportation Crew Leader position in Presque Isle was undeniably tainted.  The Board finds the former superintendent’s testimony to be credible with respect to the threatening comment he received from the human resources manager not to hire the bargaining unit employee at issue, in light of his contemporaneous notes and his more or less confirmed reporting of the incident to two different supervisors.  Given this, and the evidence that the human resources manager had anti-union animus against the bargaining unit employee, the Board finds sufficient evidence to constitute a prima facie case of discrimination in this hiring based on the bargaining unit employee’s protected activity.  However, a majority of the Board finds that the State has sufficiently

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met its burden to establish, based on the testimony of one other hiring panel member and the State’s written hiring justification, that the hiring decision was based on the qualifications of the candidates, and the bargaining unit employee would not have been hired for the position regardless of his protected activity.  The majority finds insufficient evidence that the stated justifications were mere pretext.  Testimony and evidence showed that the uncorrected performance evaluation played little to no role in the decision.

2. Transportation Crew Leader position - Ashland

The hiring decision for the Transportation Crew Leader position in Ashland likewise has some troubling aspects.  The bargaining unit employee’s immediate supervisor was part of the hiring panel for this job, whose behavior towards the bargaining unit employee suggested anti-union bias. [4]  Additionally, human resources provided the bargaining unit employee’s uncorrected performance evaluation to the hiring panel. And the human resources manager, who also sat on both other hiring panels, had previously demonstrated bias against the bargaining unit employee based on his union activity.   However, despite this, the Board finds the evidence insufficient to establish a prima facie case of discrimination.  Although the evidence of the immediate supervisor’s allegedly retaliatory truck assignment and the lack of credibility demonstrated by some of the supervisor’s testimony gives the Board pause, the causal connection between the alleged bias and the hiring decision was not sufficient to establish a prima facie case of discrimination, especially in light of the fact that the supervisor gave the bargaining unit employee a positive reference during the reference check for the hiring process.  Based on the panel chair’s testimony, the problematic performance evaluation played little to no role in the decision. In addition, the human resources manager was not permitted to vote, and there was no evidence that she interfered in this hiring process other than by failing to ensure that the panel had the correct performance evaluation for the bargaining unit employee, a factor that would not have changed the panel’s decision.

3. Transportation Crew Supervisor position - Presque Isle

There is no compelling evidence that the hiring decision for the Transportation Crew Supervisor position in Presque Isle was in any way influenced by anti-union animus.  Again, it is somewhat problematic that the uncorrected performance evaluation was used, but under the circumstances presented here this on its own falls short of establishing a prima facie case for discrimination.  Although the Board was concerned about the apparent bias of the human resources manager, who also sat on the other hiring panels, the fact that she was not permitted to vote, and that there was no testimony regarding any interference on her part in this hiring process, allays this concern. Moreover, the other (more senior) candidate would have been hired for the job regardless of the bargaining unit employee’s protected activity because he had four years of experience in the same job and in the interview he demonstrated that he knew better than the bargaining unit employee what the job required.  

C. Interference, Restraint or Coercion  

Under the Act, public employers are prohibited from “interfering with, restraining or coercing employees in the exercise of the rights guaranteed in section 979‑B.” 26 M.R.S. § 979-C(1)(A).  The rights guaranteed by section 979-B are the rights to participate, or not participate, in union-related activity.  See 26 M.R.S. § 979-B.  A public employer unlawfully interferes with the rights of a bargaining unit employee when they have “engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.” Maine Association of Police v. Town of Pittsfield, No. 20-PPC-07, slip op. at 6.  This is an objective standard, and “does not depend upon the employer’s motive or success.” Id.

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A claim of unlawful interference, restraint or coercion can be either derivative or independent.  A derivative violation is based on conduct that violates another provision of the Act that also has the effect of interfering with, restraining or coercing the employee in the exercise of their rights.  See Maine Turnpike Authority, No. 12-08, slip op. at 18;  International Brotherhood of Teamsters Local No. 340 v. Aroostook County, No. 03-09, slip op. at 19 (February 2, 2004).  If the Board finds the alleged violation underlying a derivative claim to be without merit, the Board will dismiss the derivative claim as well.  See Duff v. Town of Houlton, No. 97-20, slip op. at 24 (Oct. 19, 1999).

An independent violation occurs when the conduct itself directly interferes with the exercise of rights granted under the Act.  Maine Turnpike Authority, No. 12-08, slip op. at 18 (quotations omitted).  For example, a Police Chief's statement to an employee that they should not go to the “wrong people,” meaning union representatives, and get “bad advice” was found by the Board to be unlawful interference.  Ouellette v. City of Caribou, No. 99-17, slip op. at 10 (Nov. 22, 1999).

The Board does not find any independent violations of the prohibition against unlawful interference, restraint or coercion.  While some of the alleged conduct does raise the specter of coercive interference, particularly the human resources manager’s admonition to the bargaining unit employee to stop “running to the union with everything,” none of the conduct falling within the 6-month statute of limitations period qualifies.

For the Transportation Crew Leader position in Ashland and the Transportation Crew Supervisor position, the Board is unanimous in finding no derivative instances of interference, restraint or coercion, because the underlying offenses, discriminatory hiring, were not proven. See Duff, 97-20, slip op. at 24.  With respect to the Transportation Crew Leader position in Presque Isle, a majority of the Board similarly finds no derivative violation because there was no finding of discriminatory hiring.

            V. Conclusion

The Union has not met its burden with sufficient evidence to establish that the State unlawfully discriminated against the bargaining unit employee based on protected activity when it did not promote him, or that it unlawfully interfered with protected rights.  This case presented some instances of troubling and unprofessional conduct by State actors, but this conduct does not rise to the level of a violation of the labor relations laws under these circumstances.

            VI. Order

On the basis of the foregoing discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. § 979-H it is ORDERED that the complaint in Case No. 23-PPC-04 be, and hereby is, DISMISSED.

Dated this day, August 15, 2023.

 

                                                                        MAINE LABOR RELATIONS BOARD

 

 

                                                                        /s/                                            

                                                                        Shari Broder, Esq.

                                                                        Alternate Chair

 

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                                                                        /s/                                            

                                                                        Michael Miles

                                                                        Employer Representative

 

 

The parties are advised of their right pursuant to 26 MR.S.A. § 968(5) to seek a review of this decision and order by the Superior Court.  To initiate such a review, an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80(C) of the Rules of Civil Procedure.

                                                           

[1] The Executive Director dismissed the Union’s claimed violation of 26 M.R.S.A. § 979-C(1)(C) absent an amended complaint.  The Union did not amend its complaint or appeal the Executive Director’s ruling, so this charge was accordingly dismissed.

[2] There was testimony at the hearing that these promotions only required coursework and a practical exam, with no application or interview.

[3] In late February, 2021, the bargaining unit employee’s immediate supervisor received discipline based on the December 2020 incident the employee reported.

[4] The Board does not find it necessary at this time to address the State’s contention that an employee from a different bargaining unit cannot be considered an agent of the employer with respect to an unlawful discrimination claim under the labor relations laws.

                                                                                   

 

Employee Representative Roberta de Araujo, Esq., filed a separate opinion, dissenting in part.

OPINION

I agree with my colleagues that the Union has failed to present sufficient evidence to establish a prima facie case for discrimination, or to establish unlawful interference, restraint or coercion, with respect to two of the three jobs in question.  Where I respectfully diverge from the majority is in evaluating the claim of discrimination and unlawful interference with respect to the State’s hiring decision for the Presque Isle Transportation Crew Leader position in January 2022.  For the reasons stated below, I find the evidence sufficient to establish that the State did violate these provisions of the Act, and I would have provided for a remedy of repeating the hiring process for this position, in a process free of anti-union bias.

I agree with the majority that the January hiring decision presents a prima facie case for unlawful discrimination.  I do not agree that the State has met its burden to establish that the hiring decision would have happened regardless of the discriminatory motive.  As I see it, the majority is reaching its decision by crediting the testimony of one of the hiring panel members and the State’s hiring justification document over that of the superintendent.  To me, this testimony and the hiring justification document are not enough to overcome the evidence of anti-union-based bias in the hiring process. 

The human resources manager demonstrated that she was biased against the bargaining unit employee by taking several adverse actions against him after he became a steward, for example, instructing him in a September 2020 call to come to human resources first “instead of running to the union with everything;” repeatedly disclosing his protected health information to co-workers and other DOT personnel who had no

 

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right to this information; instigating an investigation against him for violating a masking policy that was not uniformly enforced; and failing to ensure that his corrected December 2020 performance evaluation was provided to the hiring panels for the three jobs at issue.  Conduct by the human resources manager prior to the limitations period applicable to this complaint sheds light on the motivation underlying her January 2022 admonition to the hiring panel chair not to hire the bargaining unit employee.  In her view, the employee was a troublemaker because he was active in the union, and thus she did not want to see him hired.  Though she had no “vote” on the hiring, she was in a position to intimidate the panel chair into doing what she wanted.

The superintendent was sufficiently shaken by the human resources manager’s comment that he made contemporaneous notes of the conversation and spoke with his supervisor about it very soon afterwards. The superintendent’s supervisor corroborated that the superintendent was shaken, explaining that the superintendent was “very upset and agitated” during their meeting.  The superintendent credibly testified that: he found his supervisor’s advice insufficient to overcome his concern about the human resources manager’s admonition and the potential ramifications for him if he did not heed her words; and he decided not to risk the human resources manager’s ire and instead took the bargaining unit employee out of the running for the job.  The superintendent’s decision was based on anti-union animus because it was a direct result of the human resource manager’s explicit anti-union bias against the bargaining unit employee.  As panel chair, he had the opportunity and ability to sway the other panel members away from hiring that employee.

The testimony of the other hiring panel member did not directly address the bias affecting the panel chair’s conduct in the hiring process.  In addition, his testimony on several key points was contradicted by other witnesses.  Under the circumstances, I find that there is no credible evidence to demonstrate that the hiring justification document in this instance was anything other than a post-hoc rationalization of a decision that was corrupted by anti-union animus.  The Union demonstrated, through the superintendent’s testimony, that the justification document was mere pretext for a process that was undeniably tainted by a State actor who demonstrated anti-union bias against the bargaining unit employee.  Accordingly, based on the totality of the evidence, I find not only that the Union met its burden to establish a prima facie case of unlawful discrimination but also that the employer failed to meet its burden of proving that the non-selection was also based on unprotected activity and that the bargaining unit employee would not have been hired even if he had not engaged in protected union activity. 

With respect to the unlawful interference claim for this January hiring decision, I also find for the Union.  Given my finding of discrimination in the hiring decision and the evidence of anti-union bias against the bargaining unit employee, his non-promotion can reasonably be seen as sending a chilling message to him and to other employees, interfering with the free exercise of their statutory rights to participate, or not participate, in union activity.

                                                                       

                                                                       

                                                                        /s/                                            

                                                                        Roberta de Araujo, Esq.

                                                                        Employee Representative

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