Case No. 09-13
Issued: August 21, 2009







    Complainant Maine State Employees Association (MSEA) filed a
prohibited practice complaint on March 19, 2009, in which it
alleged that the State of Maine, Department of Public Safety
violated section 979-C(1)(A) and (E) of the State Employees Labor
Relations Act, Title 26, §979 et seq., by dealing directly with
an employee concerning her conditions of employment rather than
bargaining with MSEA.  The State filed a response to the
complaint and included a Motion to Dismiss for failure to allege
facts that constitute a violation of the Act.  The State provided
written argument in support of that motion and MSEA, in turn,
provided written argument in opposition to the State's Motion to
Dismiss.  The Executive Director reviewed the complaint to
determine whether the facts as alleged constitute a violation of
the law, as required by 26 MRSA §979-H(2) and Chap. 12, §8 of the
Board Rules.  On June 2, 2009, the Executive Director dismissed
the complaint after concluding that the facts alleged do not
constitute direct dealing and therefore do not state a prima
facie violation of §§979-C(1)(A) or (E).  MSEA filed a timely
motion with the Board for review of this dismissal. 

[end of page 1]

     The Board's Rules and Procedures state the standard to be
used in an appeal of a dismissal of a complaint.  Once a motion
for review is filed, "the Board shall examine the complaint as it
existed when summarily dismissed in light of the assertions
contained in the motion."  MLRB Rule Ch. 12, §8(3).  Thus, the
Board makes its own determination on the sufficiency of the
complaint, rather than merely reviewing the decision of the
Executive Director.  In doing so, the Board must treat all facts
alleged as true and must construe the complaint in the light most
favorable to the complainant.  Buzzell, Wasson and MSEA v. State
of Maine, No. 96-14 at 2 (Sept. 22, 1997).

                       THE FACTS AS ALLEGED       

     Ms. Tiffany Norton was employed as an Identification
Specialist II in the State Bureau of Identification (SBI) and was
covered by the collective bargaining agreement for the
Professional and Technical Services bargaining unit.  In April
2008, Tiffany Norton's young son died.  Subsequently, Ms. Norton
was out of work on bereavement and related medical leave, both
paid and unpaid.
     At some point prior to September 2, 2008, the Department
sent a letter to Ms. Norton stating its intent to terminate her
for job abandonment if she did not return to work.  On Sept. 2,
there was a meeting between MSEA Field Representative C.J. Betit,
Human Resources Representative Michaela Loisel, and three
Department representatives: Lt. Col. Bob Williams, SBI Manager
Anthony Winslow, and SBI Director Matthew Ruel.  The subject of
this meeting was Ms. Norton's continued leave.[fn]1  The meeting
adjourned with the understanding that the State would not take 

     1  It is not clear from the complaint whether Ms. Norton attended
this meeting.  It makes no difference either way.

[end of page 2]

action for two more weeks.  The Union's position was that the
collective bargaining agreement provides that an employee can
remain on unpaid leave for up to a year and it is unreasonable to
deny leave when there is a doctor's note.
     Article 66 of the collective bargaining agreement between
the State and MSEA for the Professional and Technical Services
Bargaining Unit, states, in relevant part:

     ARTICLE 66
          1.   Any employee may apply for an unpaid personal
     leave of absence for good and sufficient reason.  Leave
     pursuant to this provision may be for a period not
     exceeding twelve (12) months in any fourteen (14)
     consecutive months.  Such leave may be granted at the
     discretion of the appointing authority and shall not be
     unreasonably denied. Employees are encouraged to
     consult with their agency/department Personnel Officer
     to determine if they are eligible for benefits
     available under the Federal Family and Medical Leave
     Act.  All requests for such leave and responses shall
     be in writing.  The application for leave must
     specifically state the reasons for such application and
     the length of time requested.  After completion of a
     period of personal leave of absence, the employee shall
     be entitled to return to the organizational unit,
     status and position held immediately prior to the
     beginning of the leave of absence.  If the employee's
     position is abolished during any such leave, he/she
     shall be notified and allowed to exercise his/her
     rights under the Seniority Article of this

     On September 9, 2008, (one week later) Ms. Norton provided a
note from her doctor saying that she could return to work on
Sept. 16, 2008.  Ms. Norton asked for and received ADA paperwork.
     Although the complaint does not state so specifically,
apparently Ms. Norton did resume work on September 16, 2008.  

     2  Sections 2 to 4 of Article 66 cover leaves to take another
position with the State that is excluded from bargaining.  Section 5
provides that any leave granted pursuant to the article may be
canceled by the employer at any time for good reason upon prior
written notice.

[end of page 3]

Sometime following her return, Ms. Norton had "turned in ADA
paperwork that said she could only work 40 hours . . . and would
have absences as needed."  Her position in the Department had a
mandatory overtime requirement.
     In early October,[fn]3 Ms. Norton was "called into a
meeting" in Human Resources with SBI Director Ruel, SBI Manager
Winslow, and two Human Resources Representatives.  The meeting
was "in regard to attendance issues related to ongoing and
continuing medical issues."  At this meeting, the State presented
Ms. Norton with a written proposal.  The proposal would allow Ms.
Norton to take a leave until December 1, 2008, "with the caveat
that she return without encumbrances, with no restrictions or
accommodations." Ms. Norton refused to sign the document.  No
union representative was present at this meeting and neither MSEA
Field Representative Betit nor any other union representative was
given notice of this meeting.
     On October 20, 2008, Ms. Norton received a letter from SBI
Director Ruel stating that the State had received a note from her
doctor that she would be out of work until further notice for
medical reasons.  Mr. Ruel's letter stated that the State was
granting two weeks of unpaid medical leave through October 31,
2008.  The letter also stated that Ms. Norton had declined the
previous offer made by the State for time to be out of work. 
About two and a half weeks later, on November 6, 2008, the State
sent a letter stating that Ms. Norton was absent without leave
and that under Civil Service Rules that constituted a voluntary

     3  The complaint states this meeting occurred in "early October;"
however, in subsequent submissions, both the State and the Union
indicate this meeting occurred on September 30, 2008.  The exact date
is not relevant to this ruling.

[end of page 4]


     The question presented in this case is whether the
discussions that occurred during the meeting in early October
between Ms. Norton and various representatives of the State
Bureau of Identification constituted direct dealing.  There is no
question that the Union was not present at this meeting and was
not notified of it.  When an employer bypasses the bargaining
agent and deals directly with an employee over a mandatory
subject of bargaining, it is considered a failure to bargain in
violation of §979-C(1)(E) because it is equivalent to refusing to
bargain with the bargaining agent.  Maine State Employees Assoc.
v. Maine Maritime Academy, No. 05-04 (Jan. 31, 2006) at 15. 
Thus, if the employer deals directly with an employee to modify
the terms of a collective bargaining agreement, that
circumvention of the bargaining agent is a refusal to bargain
with the agent and a violation of §979-C(1)(E).  Id. at 15. 
Likewise, an employer's direct solicitation of employee input on
working conditions is generally viewed as eroding the union's
position as exclusive representative, thereby violating §979-
C(1)(A). Maine State Employees Assoc. v. Bangor Mental Health
Institute (BMHI) and State of Maine, 84-01 (Dec. 5, 1983) at 7. 
See also Allied Signal, Inc. 307 NLRB 752, 753 (1992)("Going
behind the back of the exclusive bargaining representative to
seek the input of employees on a proposed change in working
conditions . . . plainly erodes the position of the designated
     In analyzing direct dealing charges, there are two
components that must be addressed:  The nature of the subject
matter involved and the nature of the conversation or interaction
between the employer and the employee.  If the subject under
discussion is not a mandatory subject of bargaining, there is no 

[end of page 5]

violation.[fn]4  With respect to the first issue, there is no
dispute that unpaid leave is a mandatory subject of bargaining. 
The second issue, the nature of the discussion with Ms. Norton
about unpaid leave, requires further analysis.    
     This Board's prior direct-dealing cases demonstrate that not
all discussions about mandatory subjects of bargaining that an
employer has directly with employees will be considered dealing
with those employees.  In Orono Fire Fighters, the town made
changes to an employee's work week and discussed these changes
with the employee on a couple of occasions.  Although the Board
ultimately concluded that the change was an unlawful unilateral
change in working conditions, the Board did not consider the
discussions with the employee to be direct dealing because the
employer was merely informing the employee of the change, not
negotiating or "dealing" with him.  As the Board noted, 
     It is the employer's conduct that is key to a finding
     of direct dealing, and the distinction between notice
     to an employee regarding a change in working
     conditions, and a proposal for such a change, is

Orono Fire Fighters Ass'n v. Town of Orono, No. 89-18 (Sept. 21,
1989) at 10-11.  Similarly, in the more recent case involving the
Jay School Department, the employer was charged with direct
dealing with an employee about a reduction in hours and change in
work schedules.  The Board concluded that various conversations a
supervisor had with the union steward about proposed reduction in
hours constituted direct dealing because the steward was not 

     4  This Board has held that the employer did not engage in direct
dealing when it negotiated with a unit employee over the wages and 
working conditions of a position the employee was considering taking
that was outside of the bargaining unit.  This was because those
matters did not materially affect the working conditions of bargaining
unit employees.  AFSCME v. Lincoln County Commissioners and Sheriff's
Dept., 06-24 (June 1, 2007) at 14.

[end of page 6]

authorized to negotiate on behalf of the unit employees. 
Teamsters v. Jay School Dept., No. 06-22 at 8 (Nov. 21, 2006).  A
memo sent to employees announcing the change, however, was not
considered direct dealing because the memo did not make a
proposal or solicit a response from employees, it merely reminded
the employees of the opportunity to transfer.  Id. at 11.
     On the other hand, the Board has concluded that the employer
engaged in direct dealing where written materials to unit
employees were clearly intended to solicit employee input.  In
the City of Portland case, 15 out of 19 survey questions related
to current or alternative pension benefits, an issue on the
bargaining table at the time.  AFSCME v. City of Portland, No.
90-14 at 18 (Oct. 18, 1990).  In Aroostook County, the employer
engaged in direct dealing when it sent a questionnaire asking
employees to choose from the alternatives presented for
scheduling furlough dates.  Teamsters v. Aroostook County, No.
92-28 (Nov. 5, 1992).  Similarly, the Board concluded that a
statement made by the Nurse Manager to a group of nurses that
they needed to come up with a solution to a staff scheduling
problem was intended to solicit their input.  MSEA v. BMHI, No.
84-01 at 8.
     The question in this case is whether the communication
between management and Ms. Norton regarding unpaid leave issues
was direct dealing or simply the type of conversation necessary
for the normal application of the collective bargaining
agreement's provision on unpaid leaves of absence.  Clearly,
Article 66 of the collective bargaining agreement is the outcome
of negotiations between the State and MSEA over the subject of
unpaid leave.  The State notes that Article 66 establishes both
the unpaid leave benefit and the negotiated constraints on the
implementation of that benefit.  The State argues that the
managers' discussions with Ms. Norton were merely discussions 

[end of page 7]

necessary in the application of that provision of the collective
bargaining agreement.  We agree.
     Article 66 of the collective bargaining agreement requires a
number of things from the employee requesting an unpaid leave. 
An employee may apply for leave "for good and sufficient reason,"
the application for leave must be in writing and must
specifically state the reasons for the application and the length
of time requested.  Leave may be for a period of up to 12 months
in any 14 consecutive months.  With respect to the employer's
response, Article 66 states "such leave may be granted at the
discretion of the appointing authority and shall not be
unreasonably denied."  After completing the leave, the employee
is "entitled to return to the organizational unit, status and
position held immediately prior to" the leave and is assured
contractual rights in the event of layoff.  Article 66 does not
grant the Union any particular authority or entitlement to assist
in processing an unpaid leave request.
     The most important aspect of Article 66 is the fact that the
decision to grant or deny an unpaid personal leave request is
left to the discretion of management.  The dictionary definition
of discretion is "Freedom to act or judge on one's own."    
American Heritage Dictionary, 2nd Coll. Ed. (1982).  If the term
discretion is to have any meaning, management must be able to
make the decision without having to consult with the union before
doing so.[fn]5  The Union recognizes this in its written brief,
when it acknowledged that the Employer was entitled to grant or
deny the leave request without involving the Union.  Reply Brief
to State's Motion to Dismiss at p. 6. 
     The crux of the Union's complaint is that the Employer
attempted to negotiate a condition placed on the approval of the 

     5  Whether a leave request was unreasonably denied could
presumably be the subject of a grievance.

[end of page 8]

leave request that was not contained in the terms of the
agreement.  Thus, the Union contends that while the employer
could have granted or denied the request, adding the condition
that Ms. Norton return to work without restrictions was unlawful
direct dealing because such a condition was not contained in the
collective bargaining agreement and the Union was not present for
the discussion.  
     The Union acknowledges that discussion between management
and employees regarding mandatory subjects is a daily occurrence:

     Throughout the collective bargaining agreement and in
     practice, employees are directed or encouraged to
     consult with supervisors and management over a variety
     of work arrangements.  Indeed, as the State argues,
     vacation time, training, overtime assignments,
     personnel file review, use of sick leave, and
     withdrawal of resignation are all areas in which
     employees and managers communicate, applying the
     contract, without the presence of the Union.

Union Brief at 6.  The Union's position is that the allegations
in the complaint do not describe employees and managers applying
the contract but describe the employer attempting to negotiate
different working conditions for Ms. Norton.                
     The framework of Article 66, that is, the need for the
employee to provide a "good and sufficient reason" for the leave,
the factors related to the appropriate length of the leave, and
the reasonableness of the employer's decision on the request, all
presume that the employer and the employee can engage freely in a
discussion to gather a complete understanding of the circum-
stances of each individual employee's request.  If the complaint
included allegations suggesting that the discussions between the
employer and the employee were an attempt to alter or modify the
terms of the contract, we would likely conclude that the
complaint alleges a direct dealing violation.  What is presented
in the complaint before us, however, can only be described as 

[end of page 9]

routine discussions necessary for the application of the terms of
the contract already negotiated with the Union.  
     Prior to the October meeting at issue, management had
received Ms. Norton's ADA paperwork indicating that she wanted
reduced hours and the latitude to miss time as needed.  The
meeting in early October was called due to attendance issues
arising from on-going medical issues.  In the meeting in
question, the employer laid out what it considered to be a
reasonable answer to Ms. Norton's need for time off.  In other
words, the employer was indicating to her what it considered to
be reasonable for an unpaid personal leave.  The discussion was
contemplated by the terms of Article 66 and did not include any
attempt to alter the terms of the agreement.      
     The Union argues that putting a condition on Ms. Norton's
return after the unpaid leave was like granting a vacation
request on the condition that the employee work extra overtime
upon return.  The problem with this argument is that the language
of the agreement on vacation time is markedly different that the
provision on unpaid personal leave.  The vacation provision
entitles employees to use vacation leave credits at times of
their choice, subject to operational needs and based on seniority
when necessary.[fn]6  It is a much more formulaic analysis for
the employer than consideration of the myriad of factors that
could conceivably come into play in assessing a request for
unpaid leave.  Furthermore, the hypothetical presented by the
Union presumes that an employee has a contractual right to return
from unpaid leave to a less than full-time status, a presumption
that is belied by the language of Article 66. 

     6  Article 68, section 2 states, in part, "Except where
operational needs require otherwise, employees shall be entitled to
use vacation leave credits at times of their choice.  Requests for use
of vacation leave credits shall not be unreasonably denied.  In
scheduling vacations, choice of time shall be governed by seniority."

[end of page 10]

     The Union also argues that the presence of the language in
Article 66 encouraging employees to consult with the Department's 
Personnel Officer concerning eligibility for benefits under the
Family and Medical Leave Act by implication prohibits discussing
with management any other matter.  The employer argues just the
opposite:  Because Article 66 encourages employees to consult
with management about FMLA leave requests, it also authorizes
such discussions about all leave issues.  Both of these positions
ignore the fact that the exact same language is contained in
section 2 of Article 63, the provision of the collective
bargaining agreement covering sick leave.  The Family and Medical
Leave Act provides very specific statutory benefits that are not
contained in the collective bargaining agreement so it makes
sense to refer an employee to an authority familiar with this
subject--the agency's Personnel Officer.  We conclude that the
reference to the FMLA does not affect the scope of discussions
permitted under Article 66. 
     In summary, the parties have negotiated a contractual
provision governing unpaid personal leave requests.  Article 66
reflects the reality that there are a myriad of reasons an
employee may request such a leave and many factors that go into a
decision granting or denying the request.  For the employer to
fully understand the circumstances of each individual request,
the employer must be able to discuss these issues with the
employee and such discussions are within the scope of the
contractual provision.  We conclude that the meetings and
communications alleged in the complaint do not constitute direct
dealing because they are routine discussions necessary for the
application of the terms of the contract already negotiated with
the Union. 
[end of page 11]


     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(2), it is ORDERED that the
prohibited practices complaint filed by the Maine State Employees
Association is dismissed.
Dated at Augusta, Maine, this 21st day of August, 2009.


The parties are advised of their right pursuant to 26 M.R.S.A. §979-H(7) 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.


Peter T. Dawson

Karl Dornish, Jr.
Employer Representative

Carol Gilmore
Employee Representative