MSEA et al. v. State Development Office, 499 A.2d 165 (Me. 1985), 
affirming MSEA on behalf of Thomas Heels v. State Development Office, 
State of Maine and MLRB CV-84-309, affirming No. 84-21

MAINE SUPREME JUDICIAL COURT               Reporter of Decisions
                                           Decision No. 3948
                                           Law Docket No. Ken-85-110



                  STATE DEVELOPMENT OFFICE et al.

                     Argued September 11, 1985
                    Decided October 18, 1985

       and SCOLNIK, JJ.


          On February 24, 1984, Maine State Employees Association
(MSEA) filed with the Maine Labor Relations Board (the Board) a
prohibited practices complaint against the State of Maine and the
State Development Office (here jointly called the ""State") alleging
that the State had violated the State Employees Labor Relations
Act (SELRA) , 26 M.R.S.A.  979-C(1)(A) and (1)(B),[fn]1 by discharging

     1 26 M.R.S.A.  979-C(1)(A) and (1)(B) (1974) read in full as

           1.  Public employer prohibitions.  The public
      employer, its representatives and agents are prohibited

           A.  Interfering with, restraining or coercing
           employees in exercise of the rights guaranteed in
           section 979-B;

           B.  Encouraging or discouraging membership in any
           employee organization by discrimination in regard


an employee, Thomas Heels, because he had engaged in activity
protected by SELRA.  In its decision of July 6, 1984, the Board
denied MSEA any relief, finding that there was no causal connection
between Heels' discharge and any protected activity on his part.
On February 25, 1985, the Superior Court (Kennebec County) affirmed
the decision of the Board.  On MSEA's appeal to this court, we
affirm the judgment of the Superior Court.


          Thomas Heels was employed as a development representative
by the State Development Office from February of 1978 until August
of 1983.  Heels was a professional employee serving as a contact
person with business and industrial firms.  His position was
included in the State's Professional and Technical Services
bargaining unit, and Heels was a member of MSEA.  From 1980 to
1982, Leslie Stevens was Heels' immediate supervisor and responsible
for Heels' performance evaluations.  In Stevens' opinion, those
evaluations showed "borderline" performance.  In July 1982 Steven

           to hire or tenure of employment or any term or
           condition of employment[.]

26 M.R.S.A.  979-B (1974) reads in full as follows:

           No one shall directly or indirectly interfere
      with, intimidate, restrain, coerce or discriminate
      against state employees or a group of state employees
      in the free exercise of their rights, hereby given,
      voluntarily to join, form and participate in the activities
      of organizations of their own choosing for the purposes
      of representation and collective bargaining, or in the
      free exercise of any other right under this chapter.


Bolduc became Heels' immediate supervisor when Stevens became the
director of the State Development Office.

          In the fall of 1982, Heels approached Stevens about
reclassifying his job position to put it into a higher pay range.
Heels told Stevens that he believed that a co-worker was being
paid a higher salary for performing similar duties.  Stevens responded
that it was none of Heels' business what a co-worker was making.
After receiving no assistance from his supervisors, Heels filled
out his own request for a reclassification.  He submitted his
written request to Stevens on January 4, 1983, but it was not
forwarded to the personnel department until March 3, 1983.  The
personnel department granted the reclassification the following

          On January 14, 1983, Bolduc gave Heels his annual
performance review.  Bolduc considered Heels' performance "satis-
factory" or "near satisfactory" and recommended him for a merit
increase.  Stevens overrode Bolduc's recommendation, denying the
merit increase and placing Heels on a 90-day reevaluation period.
Stevens concluded that Bolduc's evaluation pointed to the same
"borderline" situation that Stevens had found in Heels' three
prior reviews, and that the time had come to show Heels that the
issue was serious.  Both Bolduc and Stevens believed that Heels
was capable of doing a good job and hoped that his performance
would improve over the reevaluation period.  They told Heels that
failure to improve could result in his termination.  Dissatisfied
with the denial of his merit increase, Heels sought union repre-


sentation by MSEA.  On February 25, 1983, MSEA sent Stevens
written notice that Heels would appeal his performance evaluation
and merit increase denial to the agency appeals board.

          On June 9, 1983, Heels received a memo from Stevens,
informing him that his reevaluation period had been extended to
July 31, 1983.  Stevens told Heels that his performance had not
significantly improved during his first reevaluation period and
that Heels would be dismissed if he failed to improve during the
extension.  A couple of weeks later Bolduc formally reprimanded
Heels for calling in sick without arranging for someone to take
his place at an important business meeting.  Heels once again
contacted MSEA, and on July 21, 1983, MSEA sent a letter to
Stevens notifying him that Heels had filed a second grievance,
this time appealing the reprimand.

          On August 1, 1983, Heels received another memo from
Stevens, informing him that the expected improvement in his
performance had not been forthcoming.  On August 16, 1983, a
hearing was held before the agency appeals board on the matter of
Heels' merit increase.[fn]2  Ten days later, on August 26, 1983,
Stevens demanded Heels' resignation.  Heels said he would think

     2 0n September 14, 1983, the agency appeals board rendered
a decision awarding Heels his 1983 merit increase on the ground
that Bolduc and Stevens had failed to document Heels' alleged
performance problems during the rating period.

                                 -4-                                              5

it over during lunch.  After lunch, Heels refused to resign, and
Stevens fired him.[fn]3


          In its prohibited practices complaint brought before
the Board, MSEA asserted that, by firing Heels and taking the
actions against him leading up to his termination,[fn]4 the State had
violated both subsections 1(A) and 1(B) of 26 M.R.S.A.  979-C.
Specifically, MSEA claimed that the State had taken that action
because Heels had asserted, individually and through his union,
rights guaranteed by SELRA.  Therefore, MSEA argued, the State's
action discouraged membership in the union by discrimination in
regard to ... tenure of employment," in violation of subsection 1(B),
and "interfered with... [Heels and other] employees in the exercise
of the rights guaranteed in section 979-B" of SELRA, in violation
of subsection 1(A).[fn]5

          After hearing extensive testimony, the Board held that
MSEA had failed to prove the claims asserted by its complaint.

     3 0n September 19, 1983, the Governor's Office of Employee
Relations upheld Heels' discharge on the ground that he served
"at the pleasure" of the director of the State Development Office
under 5 M.R.S.A.  7002(2)(A) (1979).

     4 MSEA's complaint alleged a series of discriminatory actions
against Heels culminating in his discharge.  The Board considered
all of those allegations in its findings of fact and conclusions
of law.  For convenience herein, we confine our discussion to
Heels' discharge, since the same reasoning applies to uphold the
Board's decision as to all of MSEA's allegations.

     5 For the texts of 26 M.R.S.A.  979-B, 979-C(1)(A) & (1)(B),
see n.1 above.


The Board found as a fact:

     The actions of the State [in regard to his employ-
     ment] were not the result of Mr. Heels' exercise of any
     rights guaranteed under [SELRA].  Despite a chronological
     coincidence between Mr. Heels' actions and those of the
     State, there was no causal connection between the two.

On Rule 8OC[fn]6 review initiated by MSEA, the Superior Court concluded
that the Board's factual finding of no causal connection was supported
by sufficient evidence in the record, and that the Board had
committed no error of law in holding that the State had not
violated either subsection 1(A) or 1(B).  We agree.

          Critical to the Board's decision was its basic finding
of fact that there was no causal connection between Heels' protected
activity and any of the State's actions.  As the moving party on
its complaint before the Board, MSEA had the burden of proof on
that initial fact question.  The Board not only found that MSEA had
not carried that burden, but made an affirmative determination that
the State discharged Heels exclusively for reasons independent of
and unrelated to his protected activity.  On appeal that finding
is unassailable unless clearly erroneous.  26 M.R.S.A.  979-H(7)
(Supp. 1984-1985); Sanford Highway Unit v. Town of Sanford, 411
A.2d 1010, 1013-14 (Me. 1980).  The record evidence of deficiencies

     6 Although 26 M.R.S.A.  979-H(7) (Supp. 1984-1985), last
amended by P.L. 1975, ch. 564,  36, still refers to M.R. Civ. P.
80B as governing the Superior Court review of Maine Labor Relations
Board decisions, that Board is subject to the Maine Administrative
Procedure Act, 5 M.R.S.A.  8002(2) (Supp. 1984-1985); and M.R.
Civ. P. 80C, adopted effective February 15, 1983, by its express
terms governs review of final agency action by any agency subject
to that act.  See M.R. Civ. P. 80C, Me. Rptr. 449-458 A.2d CVIII
(1983); M.R. Civ. P. 80C advisory committee's note to 1983 amend.,
Me. Rptr., 459-466 A.2d XLVII.

                                 -6-                                                    7

in Heels' job performance, backed up by the Board's assessment of
the testimony of Heels' supervisors, Stevens and Bolduc, provides
rational support for its critical finding of fact.

          The Board analyzed this case as presenting "a classic
'dual motive' discipline situation," and it applied the Wright
Line causation test developed by the National Labor Relations
Board[fn]7 for handling such cases under the federal counterpart to
subsection 1(B).[fn]8  See NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983) (approving Wright Line test).  Under the
Wright Line test of causation, the moving,party (here, MSEA)
has the burden of proving by a preponderance of the evidence
that the employee's protected activity was "a substantial or a
motivating factor in the discharges."[fn]9  Id. at 400 (emphasis
added).  In the event the moving party succeeds in proving the

     7 Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

     8 Section 8(a)(3) of the National Labor Relations Act, 29
U.S.C.  158(a)(3) (1982).

     9 In its decision the Board fell victim to the confusing
language used by the N.L.R.B. in Wright Line, 251 N.L.R.B. at
1089, in speaking of the moving party's burden to make "a prima
facie case" or "a prima facie showing."  The United States Supreme
Court in N.L.R.B. v. Transportation Management Corp., 462 U.S.
393, 400 (1983), in restating and approving the Wright Line
test, makes clear that the federal law requires the General
Counsel as the moving party to prove by a preponderance of the
evidence that protected conduct is a motivating factor in the
employer's decision to discharge an employee.  Similarly, in
Maine SELRA requires the complainant to prove prohibited practices
by a preponderance of the evidence.  26 M.R.S.A.  979-H(3)
(Supp. 1984-1985).  In stating or applying the Wright Line test,
the concept of prima facie case or showing, whatever that means
in this context, introduces unnecessary confusion and is better


required degree of causal connection between the employee's protected
activity and his discharge, the Wright Line test still absolves
an employer who can "prov[e] by a preponderance of the evidence
that the discharge rested on the employee's' unprotected conduct
as well and that the employee would have lost his job in any
event."  Id.  In other words, even if the moving party satisfies
his initial burden of proof, the Wright Line test provides the
employer with an affirmative defense upon its "proof that the
discharge would have occurred in any event and for valid reasons
...."  Id.  In the case at bar, however, the Board never got
beyond MSEA's initial burden of proof under the Wright Line test.
Accordingly, the Board found that it did not have a "dual motive"
case before it af ter all.  MSEA failed to prove any a violation
of subsection 1(B).[fn]10

          In its analysis of the subsection l(A) prohibition,
the Board used its own adaptation of the well-established federal
rule applied to the counterpart federal statute:[fn]11

          We long have recognized that the test of interference,
     restraint, and coercion under Section 8(a)(1) of the
     Act does not turn on (the employer's] motive, courtesy,
     or gentleness, or on whether the coercion succeeded or
     failed.  The test is whether (the employer] has engaged
     in conduct which reasonably tends to interfere with the
     free exercise of employee rights under the Act.

     10 Having failed to satisfy its burden under the Wright Line
test, MSEA also failed to prove any violations of [subsection
l(A)] turning on employer motivation."  Wright Line, 251 N.L.R.B.
at 1089.  See also NLRB v. Transportatioa Management Corp., 462
U.S. at 400 (Wright Line test applied to both sections 8(a)(1)
and 8(a)(3) of National Labor Relations Act).

     11 Section 8(a)(1) of the National Labor Relations Act, 29
U.S.C.A.  158(a)(1) (1973).

                                 -8-                                                              9

Hanes-Hosiery, Inc. , 219 N.L.R.B. 338, 338 (1975).  See also Presby-
terian/St. Luke's Medical Center v. NLRB, 723 F.2d 1468, 1472
(10th Cir. 1983).  Although the federal authorities are not
controlling precedent, the Board justifiedly consulted them for
their help in construing parallel statutory provisions.  See                        
Baker Bus Service v. Keith, 428 A.2d 55, 56 n.3 (Me. 1981).  In view 
of the Board's basic finding that Heels' discharge occurred
without any causal connection with his protected activity, the
Board was justified in concluding that no employee who knew those
facts reasonably would be interfered with, restrained, or coerced
in asserting his protected rights.  Objectively viewed, other
employees with knowledge of the facts would see Heels' discharge
as unrelated to the union and the rights guaranteed by SELRA.  On
this record, the Board would have had to engage in speculation
and surmise to hold the State in violation of subsection 1(A)
because of the possible side effects of the Heels incident on
other employees.

          The entry is:

                                Judgment affirmed.

All concurring.