Teamsters v. Baker Bus Service, No. 79-70 Decision and Order of 3/3/80;
Affirmed by Superior Court in CV-80-157, Affirmed 428 A2d. 55 (Me. 1980).
Board Decision and Order on Compliance dated 1/25/82. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-70 _______________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) State, County, Municipal and ) University Employees in the ) State of Maine, ) ) Complainant, ) ) DECISION AND ORDER v. ) ) BAKER BUS SERVICE, INC. ) ) Respondent. ) ______________________________) Complainant Teamsters Local Union No. 48, State, County, Municipal and University Employees in the State of Maine ("Local 48") filed this prohibited practice complaint with the Maine Labor Relations Board ("Board") on June 5, 1979. Respondent Baker Bus Service, Inc., ("Baker Bus") responded on June 25, 1979. Alternate Chairman Donald W. Webber held a pre-hearing conference in the matter on July 18, 1979, after which he issued a Pre-Hearing Conference Memo- randum and Order dated July 24, 1979, the contents of which are incorporated herein by reference. The Board stayed further proceedings in the case as discussed below until a hearing was held on January 15, 1980, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Harold S. Noddin. Local 48 was represented by Thomas H. Kohn, Esq; Baker Bus by William F. Hufnagel, Esq. The parties stipulated that paragraph 4(b) of the complaint was withdrawn on the basis of a consent decree with a nonadmissions clause to be submitted later. At the close of the hearing there was oral argu- ment and the parties waived the submission of briefs. JURISDICTION Jurisdiction of the Board lies in Section 968(5) of the Municipal Public Employees Labor Relations Act (the "Act"), 26 M.R.S.A. Section 968(5). Baker Bus objects to the Board's jurisdiction on the grounds that it is not a public employer as defined in Section 962(7). This issue was previously decided against Baker Bus by the Board and subsequently affirmed by the Superior Court in Baker Bus Service, Inc. v. Edward W. Keith, et al., Kennebec Super. Ct., (November 19, 1979, appeal docketed February 8, 1980, Law Docket No. Ken-80-5. Jurisdiction of the Board is thus contingent upon action by the Law Court in the case pending be- fore it. FINDINGS OF FACT 1. Baker Bus is a public employer per 26 M.R.S.A. Section 962(7) with regard to its bus service in the City of Augusta; Local 48 is a public employee organization, see 26 M.R.S.A. Section 968(5)(A); 962(2). [-1-] ____________________________________________________________________________________ 2. Baker Bus began providing bus services to the Augusta schools in 1977. On December 27, 1977, Local 48 filed a petition for an appropriate unit determination. The Board, on appeal from a hearing examiner's determination, sustained the conclusion that it had jurisdiction over Baker Bus on October 8, 1978. While the decision of the Board was pending review in the Superior Court, the Board granted Baker Bus's motion for a stay of further pro- ceedings including two other prohibited practice complaints and a bargaining agent election for the unit of approximately twenty bus drivers involved herein. (While the review by the Superior Court was pending this complaint was filed.) 3. Ernest P. Hewett, President of Baker Bus, hired Prescott Chapman in February 1978. Chapman had no previous experience. The drivers work approximately thirty hours per week. 4. During the next fifteen months there were a number of oral com- plaints made against Chapman by parents, and one by a principal. These kinds of complaints are constant in the life of Baker Bus and they are frequently anonymous. 5. At some point during early 1979, Hewett fired bus driver Nancy Elvin and then hired her back on the next day. Local 48 filed a prohibited practice complaint against Baker Bus for this and other alleged interference with union activities, MLRB No. 79-57. It is clear from the testimony of Hewett that he identified Elvin as the key union adherent in the Local 48 organizing effort that had taken place among the Augusta school bus drivers, the results of which effort were still pending. On May 3, 1979, the Board held a pre- hearing conference in the Elvin case. In attendance at the confer- ence for Local 48 were Elvin and two other bus drivers who were listed by Local 48 as potential witnesses. At the conference for Baker Bus were Hewett and one bus driver who was a potential witness for Baker Bus. Prescott Chapman also attended the conference although he was not asked by Hewett to attend and was not listed by Local 48 as a potential witness. Chapman attended as an interested observer only. 6. Two weeks later, on Friday, May 18th, two telephone complaints were lodged against Chapman: one, by a Mrs. T. that Chapman was driving his bus too fast on Cross Hill Road and that her son had bumped his head; the second, by Sr. Rose Marie, principal of St. Augustine school, that Chapman had left without waiting for some students even though he had been asked to wait. Transportation Supervisor Robert Dutil re- ceived these calls and, since Hewett was not present as he often is, Dutil wrote short notes to Hewett on these two complaints. When Chapman came back to the bus center, he and Dutil discussed the situa- tion. Chapman was certain that he had not been going too fast. He also reported that no child had complained of having bumped his head. They also apparently discussed the St. Augustine students incident. 7. Dutil made no further investigation. He did come in the next day, however, Saturday, May 19th, to meet with Hewett concerning Chapman. Dutil recommended that Hewett fire Chapman because of these two and prior complaints. (Dutil had recommended Chapman's firing after the first complaint against Chapman in May 1978 a "manhandling complaint" discussed below.) Hewett was undecided. Dutil stated that union activity was not a consideration in their conversation. 8. Dutil testified that on Monday morning, May 21st, Hewett told him that "he was going to" fire Chapman. When Chapman came in Hewett had a discussion about these two incidents with him and then fired him. It is unknown what, if any, reasons Hewett gave Chapman at the time. The answer to the prohibited practice complaint alleged that there were three reasons: (1) a growing number of parental complaints con- cerning Chapman's handling of students, (2) the speed of his bus on Cross Hill Road, and (3) the complaint of Sister Rose Marie that students at the St. Augustine school who were returning late from a school trip requested Chapman to wait for them and that he left them without transportation even though there was no time schedule for Chapman to meet. When Hewett first testified when called by Local 48 he referred to -2- _____________________________________________________________________________________ these general incidents as the reasons for the discharge. He explained the Cross Hill Road and St. Augustine complaints and he specified four past complaints, which had alleged "manhandling" of a student, abusive language, touching girls, and improper words on a bus-incident-report-to-parents slip. Each of these six in- cidents is considered below. 9. The Cross Hill Road Complaint. This complaint, one of the two events which triggered Chapman's discharge was a telephone complaint from a Mrs. T. received by Dutil. Mrs. T. complained that Chapman was driving too fast, that she had followed him in the past and that he was traveling at 35 to 40 m.p.h., and that her son had bumped his head when the bus hit a bump in the road. Dutil "imagined" that she was following behind Chapman on this occasion but she did not say it and it appears unlikely from the note that Dutil wrote at the time. Chapman indicated that he drove at 30 to 35 m.p.h. on that road, that it was proper to travel at that speed and that the T. boy had not complained in any way. Elvin agreed on the 30 to 35 speed, but Dutil thought 35 was too fast. Cross Hill Road had been recently graded and was in good condition; the speed limit is 45 m.p.h. As a matter of policy the speed of the bus is left to driver judgment. Another factor is that Mrs. T. is one of about twenty-five complainers who Hewett characterized as "chronic." She complained "frequently" concerning other things, that is, three or four times a year. Hewett described Mrs. T. as one of the mildest of his chronic complainers. At the end of the discussion that evening, Dutil told Chapman to be a little more careful, that is all. 10. The St. Augustine complaint. Normally, Chapman picks up twenty to twenty-five sixth through eigth grade students at the St. Augustine school and delivers them to the Hussey school where three to six other buses are waiting for Chapman's students who then transfer between the buses prior to delivery at home. On this day a group of students had been on an outing and returned to school at the last moment before Chapman's scheduled departure. One of the students came from a parked car and asked him to wait because some students would be a few minutes late. The student did not say how many students would be late. Chap- man had a typical load of students already, although he understood several were involved. (Apparently four of five missed the bus.) Chapman said he could not wait and departed shortly thereafter, arriving on time at the transfer point. He assumed that the parents would transport the children home which they apparently did. The factors Chapman had to consider were (1) the company policy of keeping to a strict schedule and the fact that he had no real leeway to wait and stay on schedule, (2) the number of buses that would be delayed if he was late, (3) the company policy of honoring parents and teacher requests to wait but not requests by students. (Hewett indicated that this policy, although not written down, was well-known by the drivers but was only intended to apply to picking up children at home), and (4) the lack of advance notice from Dutil that he should wait past schedule because an outing of students would be late (advance notice of such was common). In exercising his judgment, Chapman did not use the two-way radio on his bus to call Dutil and ask him whether he should leave or wait. Chapman offered no explanation for why he did not use the radio, he just had decided to leave on schedule. 11. The "manhandling" complaint. This incident was not placed in time. It involved a complaint from Mr. T. that Chapman had "manhandled" his son in the school yard. The uncontroverted facts are that Chapman had broken up a fight between the T. boy and another outside his bus. Chapman explained that he did so because he felt partially responsible for the fight. He explained that on the ride in to school he felt it necessary to split up two boisterous girls. Chapman directed that one of them sit next to the T. boy. This led to some remarks and hostility between the T. boy and another during the remainder of the ride. When the bus emptied in the schoolyard, one of the two tackled the other and a fight erupted. Chapman jumped out of the bus and broke up the fight. There was no claim that he did so improperly although Hewett testified that it would be improper to leave the bus with students on board. On rebuttal Chapman pointed out that the bus was empty at the time. -3- ____________________________________________________________________________________ 12. The abusive language complaint. Shortly after Chapman began there was a complaint about Chapman using abusive language. Hewett does not recall the details except that he spoke to Chapman about it and told him to be more careful. It never happened again. Chapman testified that he recalls that he had used the word "damn" and that he understood not to use it anymore. Baker Bus has had similar complaints regarding other drivers. 13. The touching girls complaint. Apparently on two occasions a person who claimed to be a parent, but who would not identify him or herself, complained of Chapman touching their child or that a girl had been on his lap. Hewett indicated that he dis- regards all anonymous calls such as this. Hewett testified that he did nothing about this complaint also because there were no witnesses although he mentioned the calls to Chapman. Chapman testified that Dutil told him that Hewett had another driver somehow check out Chapman regarding this kind of thing and had found no problem. Neither Dutil nor Hewett addressed themselves to this testimony. 14. The bus-incident-report-to-parents slip complaint. In May 1978, three months after Chapman began as a driver, a Mr. S. came to Dutil to complain about a Baker Bus incident report form that Chapman had written concerning his son. The form is entitled: "School Bus incident Report to Parents, Baker Bus Service." The body of the form states: "Dear Parents: The purpose of this report is to inform you of a disci- plinary incident involving the student on the school bus, which may have jeopardized the safety and well-being of all students. You are urged to both appreciate the action taken by the driver and to cooperate with the corrective action initiated today by the School District. ________________ has been cited for an infraction of the rules listed below:" The form lists fifteen types of infractions, of which Chapman had checked the box for "Fighting/Pushing/Tripping," and provides space for "Specific Details" where Chapman had written "causing a fight by pretending to be homosexual, by blowing kisses to some of the guys." Under "Previous Warnings" Chapman had checked the place for "2nd offense" and indicated that there would be a one-day suspension of riding privileges the next day. Parents are urged to appreciate the disciplinary action taken "and to discuss this to prevent further occurrence. Please sign and return both copies of this notice to the Bus Driver the first school day after the incident." There are lines on the bottom for the signatures of the driver, the Transpor- tation Supervisor, and a parent. 15. Mr. S. was upset about the wording of the slip. There apparently was no quarrel with the truth of the statement or the underlying facts, rather, Mr. S. apparently took offense at the characterization of his son's conduct. This complaint prompted Hewett and Dutil to post a notice on the bulletin board that any slips that included any spe- cific details (rather than just checking an infraction box) had to be signed by the Transportation Supervisor. Hewett did not like the language Chapman had used and instructed Chapman according to the new policy. Dutil and Hewett both testified with uncertainty that the notice concerning the proper procedure to use to fill out these slips was posted sometime before this incident. Chapman was certain that the notice was posted after the complaint by Mr. S. -4- ________________________________________________________________________________ 16. Although Dutil made no reference to a driver's handbook in describing the proper procedure to use when filling out these slips, referring only to the notice he posted on the bulletin board, Hewett claimed that the driver's handbook contained the proper procedure for filling out the slips. The handbook was not offered into evidence, however. Nonetheless, Dutil, who had never instructed Chapman on the procedure for filling out slips, and who did not question the accuracy of the slip, testified that he recommended to Hewett that he discharge Chap- man for this incident. Dutil stated that Hewett said that he would take care of it, although nothing happened. 17. Dutil and Hewett agreed that Chapman had no way of knowing that his past work was considered unsatisfactory; neither of them had in any way disciplined or even warned Chapman that he was "on thin ice" because of these past complaints. They also agreed that after Hewett spoke to Chapman about a complaint, there was never a repeat complaint of that type. 18. When Hewett was recalled to testify, this time by Baker Bus as its last witness, he again described the reasons for the discharge. This time Hewett changed his version of the discharge. He testified that he was undecided whether to fire Chapman or not when he called Chapman into his office on Monday morning. Hewett now related that the triggering factor in the discharge was the attitude Chapman dis- played during the discussion of the two complaints of Friday, May 19th. Hewett described this as an I-don't-care attitude, although he was unable to relate anything that Chapman actually said. Be- cause of Chapman's attitude, Hewett decided to discharge him and did so at the end of the discussion. 19. Baker Bus receives a lot of complaints, it appears to be the nature of the business based on testimony of Dutil and Hewitt. Complaints are common; there are twenty-five or more chronic complainers; one parent complains once a week. Principals call almost daily with problems and buses are sent back day in and day out. Dutil had even had one parent complain several times in one week. While Dutil ad- mitted that it was not uncommon to tell other of the twenty drivers to be more careful, he indicated that Chapman had the most complaints against him. 20. Hewett had discharged three other bus drivers in the two years he had worked the Augusta school system. One driver was discharged because he did not give the right of way to an ambulance, was speed- ing to keep ahead of an ambulance and almost had an accident with an Augusta police cruiser. One driver was discharged when she got her bus stuck on a snowy day on a road where she was not supposed to be and damaged the bus "quite a bit." The third was Nancy Elvin, who was discharged one day and rehired the next day for reasons unknown. 21. Hewett had also put someone on probation on one occasion in the past. He testified that he could not "decide" why he did not put Chapman on probation although he considered it at the time. 22. Chapman was not involved in soliciting others for union membership. He had, however, expressed his interest in Local 48 and had signed an authorization card. Chapman thinks that Hewett fired him because he went to the pre-hearing conference on Elvin's prohibited practice complaint and because of his allegiance to her. Chapman had coffee with Elvin nearly every morning at the nearby grill. Hewett would see them there at least once or twice a week. 23. All of the employees are afraid to discuss the subject of the union in the presence of either Dutil or Hewett who both testified that the employees "clam up" when they came on the scene. Hewett never actually saw any union activity but admitted that he was aware of it taking place nonetheless. He admitted that he was not pleased with the union effort in his company. 24. Chapman, in trying to explain a connection between his union activi- ties and the discharge, claimed that a few days after Elvin's pre- hearing conference he was harassed by Hewett. Chapman testified that -5- _____________________________________________________________________________ he told Dutil that he wanted to change buses because his had been rejected at the State vehicle inspection because of a tie rod defic- iency. Dutil looked at it and felt that it was safe nonetheless. Since there was a policy that drivers did not have to take a bus that they did not feel safe with, Dutil did not press Chapman on the issue. Shortly thereafter, according to Chapman, Hewett came out to the punchcard rack and berated Chapman for punching in early although Chapman had not yet punched in. Hewett did not recall the incident very well although he stated that it would not be unusual for him to berate a driver for punching in early. 25. In any event, immediately after Hewett told Chapman that he was fired, he called Elvin into his office and told her what he did. Other details are in dispute. Elvin testified that Hewett called her out of a group of other drivers, closed the door to his office, and then told her that he had just fired Chapman. Elvin responded, "Why tell me?" Hewett said, "Because you are the cause of all my trouble." Elvin asked if that was all, Hewett said yes, and Elvin left. In contrast Hewett testified that he probably told Elvin that he had terminated Chapman and the reason for it. He did not remember but agreed that she could have said "why tell me?" He was certain, however, that he had never told anyone that Elvin was the cause of his problems. He also testified that he called her into his office for the sole purpose of telling her of the termination. Hewett wanted "them" to know rather than let Chapman tell them. He stated that he called Elvin in only because she walked by his door and because of past incidences involving Elvin. 26. On June 5, 1979, Local 48 filed this complaint alleging that the discharge was a prohibited practice. After the Superior Court upheld the Board's assertion of jurisdiction over Baker Bus in a decision of November 1979 the Board proceeded to set a bargaining agent election for the bus drivers in January 1980. Local 48 was certified as the bargaining agent at the close of the election. Hewett was asked if he had said to a group of employees right after the election that he "would get out of the whole damn mess." He explosively denied the statement and objected to the question. DISCUSSION Local 48 charges that Baker Bus violated Sections 964(1)(A) and (B) of the Act by discharging Chapman because of his activities on behalf of the union, particular- ly his voluntary attendance at a pre-hearing conference on another complaint by Local 48 against Baker Bus. Baker Bus counters that Chapman was discharged solely because of complaints about his performance as a bus driver from parents and a principal. We conclude after considering all the circumstances that Chapman's union activities were a significant factor in the discharge and that Hewett was at least partly motivated by a desire to counter the union effort in his company. We therefore conclude that Baker Bus has violated both Sections 964(1)(A) and (B) and will direct an appropriate remedy. We have often stated that an act will violate 26 M.R.S.A. 964(1)(A) or (B) if simply one of the motivating factors for the act was an unlawful one." Teamsters Local 48 v. Town of Jay, MLRB No. 79-19, at p. 3 (Feb. 27, 1979) (emphasis in original). Also, if one of the reasons for an employee's discharge is the employee's union acti- vities, then the discharge violates both cited sections of the Act. See Campbell v. Town of Freeport, No. C-75-621 (Kennebec Super. Ct. Sept. 2, 1976), aff'g, Freeport Police Benevolent Association v. Town of Freeport, PELRB No. 74-18 (Dec. 18, 1974); Galaska v. M.S.A.D. No. 47, MLRB No. 79-63 (Dec. 18, 1979). We determine whether the discharge was motivated in part by an unlawful reason "by carefully examining the entire record and drawing inferences." Teamsters Local 48 v. City of Auburn, MLRB No. 79-41 at p. 5 (Oct. 4, 1979). An inference of impermissible motive may of -6- ________________________________________________________________________________ course be rebutted by evidence that the discharge was solely motivated by legiti- mate reasons. We find compelling the inference that the discharge was impermissibly moti- vated. Hewett saw Chapman as a strong union adherent because of his voluntary attendance at the pre-hearing conference regarding an alleged prohibited prac- tice against Elvin and because of his close alliance with Elvin, the key union adherent. We conclude that the claimed reasons for the discharge are primarily pretextual and at best an effort to capitalize on a minor transgression by Chap- man and to utilize it to mask an attempt both to retaliate against an open union adherent and to discourage Elvin and the general union effort being made by em- ployees on behalf of Local 48. We reach these conclusions primarily from four factors that emerge from the record: (1) Hewett's post-discharge comments to Elvin, (2) the sheer unlikelihood of discharge as a reasonable remedy for a minor error of judgment and a questionable, unsubstantiated complaint about a minor matter from a chronic complainer, (3) Hewett's inconsistent and less than credible explanations for his actions, and (4) the atmosphere of anti-union hostil- ity that pervades the enterprise. 1. Hewett's post-discharge comments to Elvin. As soon as Hewett informed Chapman that he was being terminated, he called Elvin, who was standing in a group of bus drivers, into his office. He closed the door and then told her of the discharge. When she asked why he was telling her, Hewett answered, "Because you are the cause of all my trouble."[fn]1 There was no legitimate business reason why Hewett should single out Elvin to tell her about the discharge but for her position as the key union adherent. More significantly, the obvious implication from the charge that she was the cause of all his trouble is that he was referring to her instigating union activities. Hewett was clearly drawing a link between his firing Chapman and the union activities of Elvin and others. He was indirectly suggesting that Chapman would not have been fired if it were not for Elvin's union activities. Passing the blame for such a discharge is both threatening and retaliatory. We conclude that this link to the union activities of either Chapman or Elvin is sufficient for us to conclude that in discharging Chapman, Hewett was attempting to interfere with, restrain and coerce not only Chapman, but all employees seeking union representation rights and there- fore violated Section 964(1)(A). We also conclude that Chapman's discharge was tainted with discrimination because of his union activities and accordingly also violated Section 964(1)(B). 2. The sheer unlikelihood of discharge as a reasonable remedy. We are struck here by the sheer unlikelihood that discharge could be an appro- priate remedy, even within a wide latitude, for the reasons proffered.[fn]2 This again leads us to suspect that the stated reasons are primarily pretextual and that Chap- man's union activity was a factor in the discharge. See Teamsters Local 48 v. Town __________ 1 Hewett's version of this conversation differs substantially and we do not credit it. 2 We do not credit Hewett's second version of the reasons for discharge, which cited Chapman's poor attitude on Monday morning as the triggering factor. Even if we considered this as an additional reason for the discharge, it would not change our analysis since it still leaves the discharge far short of reasonable. -7- ________________________________________________________________________________ of Jay, MLRB No. 79-19 (Feb. 27, 1979). Both of the triggering incidents are minor and one is uncorroborated and unreliable; past complaints relied on as background are minor, uncorroborated, and isolated incidents; Chapman had never been warned or disciplined in any fashion for anything; reasons for discharge were substantially disparate from those supporting past incidents of discharge; and there was no investigation. The two triggering incidents are not worthy of major discipline. The Cross Hill Road complaint from Mrs. T. should have been either disregarded or investi- gated in some fashion. First, the complaint came from a "chronic" complainer and would reasonably be entitled to little weight. Even if true, Chapman would have been well below the speed limit. And Chapman had never before in his entire fifteen months been accused of driving too fast. Hewett and Dutil could easily have arranged to tail Chapman or otherwise check his speed. Under these circum- stances, however, we find it unreasonable to base a discharge on this telephone complaint. The incident involving the St. Augustine students was an error in judgment on Chapman's part. Given the other considerations he had, however, this must be classified as a minor error, the first one he had ever made of this type. Past complaints, relied on as a factor in the discharge decision, are isolated and either extremely minor or totally uncorroborated. The manhandling complaint was not worthy of any disciplinary action at that time or later. Under the cir- cumstances, it appears that Chapman acted in a very human and responsible fashion. He was perhaps legally naive concerning potential liability of Baker Bus for any injury he might have caused, but he apparently did break up the fight in a proper fashion. Hewett and Dutil were so unconcerned about it at the time that they did not investigate the circumstances in any fashion or reprimand Chapman. The only improper aspect of the incident alleged by Hewett was a breech of company policy by leaving the bus with students on board. However, neither Hewett nor Dutil attempted to rebut Chapman's specific testimony that he was at the end of his route and that his bus had emptied at the time of the fight. The abusive language complaint, Chapman's use of the word "damn," which hap- pened when he was new to being a bus driver and about a year before his discharge, was a not uncommon complaint for drivers, and one which was not repeated in Chapman's case. As with the other complaints, by all accounts, when Hewett would mention a call to him, Chapman would respond to the claim in a respectful and contrite fashion even when he denied the substance of the allegation. Notably, he never had another similar complaint lodged against him. It is apparent that Hewett reached similar conclu- sions about Chapman at the time, as he demonstrated no concern about future problems, neither warning nor reprimanding Chapman. The bus-incident-report complaint was filed by a parent who took umbrage at the language of the report only because of the parent's misunderstanding of what Chapman had written. "Pretending to be homosexual" is probably exactly what the boy was doing; no one claimed to the contrary. While it is understandable that Dutil might want to screen written comments in the future, it was not at all clear that Chapman had violated an existing rule when he did not seek Dutil's -8- ________________________________________________________________________________ signature before giving out the slip. It is hard to credit the vague and uncer- tain testimony of Dutil and Hewett that they had posted a notice on the bulletin board before this incident. In light of Chapman's convincing testimony and the circumstances, it is most probable that the incident prompted the posting of a notice afterwards. Finally, the only incident that should have caused concern, the allegations concerning touching girls, were simply brushed off according to the evidence offered by Baker Bus. This strains credibility since an allegation of this nature, whether or not anonymous, is worthy of serious investigation. It is therefore more likely that Hewett reacted as Chapman claimed. Dutil had told Chapman that Hewett somehow had Chapman watched or investigated. Hewett found no cause for suspicion, and therefore took no action, probably deciding that it was a crank call. Dutil did not deny telling Chapman this and Hewett as well did not rebut the claim. Thus we conclude that Chapman had not only a discipline-free record over a fifteen month period prior to discharge, but also an essentially good record during this period. Hewett and Dutil both admitted that, although they claimed that Chapman was "on thin ice" because of these prior complaints, Chapman had absolutely no way of knowing that he was in such a precarious position. Thus the discharge from Chapman's point of view came suddenly and totally without warning. Not only was every notion of progressive discipline bypassed, even Hewett could not explain (or "decide" as he put it) why he had not put Chapman on probation as he had done with another employee once before. Instead these minor incidents were treated as worthy of summary discharge, totally unbefitting to the degree of severity of the incidents. The radical nature of the remedy is highlighted by comparison with two other discharges at Baker Bus. See Finding of Fact No. 20. Chapman's errors pale in comparison with the events which triggered the other discharges where the drivers demonstrated either recklessness in driving or untrustworthiness. 3. Hewett's changing reasons for discharge. Hewett first described the reasons for the discharge of Chapman as the Cross Hill Road and St. Augustine school complaints and the background of previous com- plaints. This is also the version that appears in Baker Bus's answer to the com- plaint. However, after Local 48 had presented its case and substantially weakened the strength of the case against Chapman, Hewett was called to the stand as Baker Bus's last witness to testify again. This time Hewett had a new theory for the discharge. He now claimed among other items mentioned for the first time that he was undecided whether to fire Chapman or not when he called him in. He claimed that it was Chapman's attitude during the Monday morning discussion that convinced Hewett that he would discharge him. This claim was not only the first time it had been made and thereby indirectly contradicted the first explanation of the reasons for the discharge, but it also directly contradicted the testimony of Dutil who had related that Hewett told Dutil on Monday morning that "he was going to" fire Chapman and thus had already made up -9- _____________________________________________________________________________________ his mind to fire him before the discussion. It therefore seems likely that Hewett was at this point attempting to bolster his case with subjective evidence that is difficult to rebut. We conclude that Hewett was weaving a tangled web; we reject his testimony. We also reject Hewett's testimony regarding the post-discharge conversation with Elvin. Here Hewett claimed under cross-examination that he called Elvin into his office "only" because she just happened to walk by his office. He also claimed that he wanted to let "them" know about the discharge before Chapman told them. Significantly, however, Hewett also stated that he called Elvin in because of past incidents she was involved in. Because of these inconsistencies and his less than certain recollection, we do not credit Hewett's version of this con- versation and his denial of the comment about Elvin being the cause of his trouble. Finally, Hewett's explosive denial of the post-election statement about get- ting out of the whole "mess" just did not ring true. Whether he made such a state- ment or not would add little to this case one way or the other. Thus we view this as an additional example, albeit a minor one, of the reasons why we doubt Hewett's verity, and thus doubt that Chapman was discharged solely for legitimate reasons. 4. General anti-union atomosphere. It was evident that the drivers were fearful of mentioning or discussing the union in the presence of Hewett or Dutil. Such a state of affairs does not neces- sarily result when an employer expresses his dissatisfaction with a union effort. However, Hewett, who candidly admitted at the hearing to being unhappy with the union, had a work force that was fearful of what Hewett might do because of union activities. While this fact alone would not support a conclusion that any speci- fic action was taken with anti-union motives, it is of some significance in all the circumstances to the conclusion we reach that the discharge was a prohibited practice. REMEDY We of course will issue a cease and desist order against further interference, coercion or restraint by discrimination in regard to tenure of employment. We also will require that Baker Bus make an unconditional offer of immediate and full reinstatement to Chapman and that Chapman be made whole for the loss of earnings suffered by reason of the discrimination and interference. The sum of money that this will require, the "net backpay due," is equal to "gross backpay" (what Chap- man would have earned in employment lost through the prohibited practice) less "net interim earning" (what was actually earned from other employment during the period less expenses incurred in seeking and holding interim employment). Of course, interest at a usual and appropriate rate must be added to the total in determining net backpay due. The order will also provide a mechanism whereby the Board will determine the amount due in the hopefully unnecessary event that the parties are un- able to reach an agreement between themselves. -10- _____________________________________________________________________________________ ORDER Respondent Baker Bus Service, Inc., its officers and successors, repre- sentatives and agents shall: (1) cease and desist from interfering with, restraining or coercing members of Teamsters Local Union No. 48, State, County, Munici- pal and University Employees in the State of Maine in the exercise of rights protected by Section 963 of the Municipal Public Employees Labor Relations Act by terminating an employee because of union activity; (2) cease and desist from discouraging membership in Teamsters Local 48 by discrimination in regard to tenure of employment because of union activities; (3) Make an unconditional offer to Prescott Chapman of immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent one, without prejudice to seniority or other rights or privileges; and (4) make Prescott Chapman whole for any loss of earnings suffered by reason of his discharge by payment of net backpay due. Twenty days after the expiration of the appeal period of this order or after a judgment of the Superior Court enforcing paragraph (4) above in whole or in part, if the parties have not agreed upon net backpay due, Local 48 shall file with the Executive Director after serving on Baker Bus: (a) a weekly list of gross backpay claimed; (b) a weekly list of actual earnings from other employment; (c) a list of expenses incurred in seeking and holding interim employment; (d) interest claimed; and (e) documents and/or affidavit(s) supporting each item. Baker Bus Shall have fifteen days from such filing to respond with documents and/or affidavit(s) bearing on the issue. The Board will thereafter issue a supplemental order for net backpay due or conduct such further proceedings as are necessary to supplement this order. Dated at Augusta, Maine, this 3rd day of March, 1980. MAINE LABOR RELATIONS BOARD /s/______________________________ Edward H. Keith Chairman /s/______________________________ Don R. Ziegenbein Employer Representative /s/______________________________ Harold S. Noddin Alternate Employee Representative -11- _______________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-70 Issued: January 25, 1982 ______________________________ ) TEAMSTERS LOCAL UNION NO. 48 ) ) Complainant, ) ) v. ) DECISION AND ORDER ) ) BAKER BUS SERVICE, INC., ) ) Respondent. ) ______________________________) This is the compliance phase of a prohibited practices proceeding. On March 3, 1980 the Maine Labor Relations Board (Board) issued in this proceeding a Decision and Order which found that Baker Bus Service, Inc. (Baker) violated 26 M.R.S.A. 964(l)(A) and (a) by discharging bus driver Prescott Chapman because of his union activities. The Board ordered that Baker reinstate Chapman to his former position and make him whole by paying him all backpay lost as a result of his unlawful discharge, providing in the Order the following procedure for a Board determination of the net amount of backpay due: "Twenty days after the expiration of the appeal period of this order or after a judgment of the Superior Court enforcing paragraph (4) above in whole or in part, if the parties have not agreed upon net backpay due, Local 48 shall file with the Executive Director after serving on Baker Bus: (a) a weekly list of gross backpay claimed; (b) a weekly list of actual earnings~from other employment; (c) a list of expenses incurred in seeking and holding interim employment; (d) interest claimed; and (e) documents and/or affidavit(s) supporting each item. Baker Bus shall have fifteen days from such filing to respond with documents and/or affidavit(s) bearing on the issue. The Board will thereafter issue a supplemental order for net backpay due or conduct such further proceedings as are necessary to supplement this order." On April 6, 1981 the Law Court affirmed a Superior Court judgment which enforced the Decision and Order in its entirety. Baker Bus Service v. Keith, 428 A.2d [-1-] __________________________________________________________________________________ 55 (Me. 1981). Following the Law Court's decision, the parties were unable to agree on the total amount due Chapman, and the Board was requested to decide the following issues: 1) whether Baker must reimburse Chapman for lost unemployment compensa- tion if Chapman is required to repay his unemployment benefits, and 2) whether Baker is required to pay interest on the backpay and expenses owed to Chapman. A hearing was held on these issues on December 7, 1981, Alternate Chairman Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Harold S. Noddin. Teamsters Local 48 (Local 48), the union representing Chapman, was represented by Jonathan C. Axelrod, Esq., and Baker was represented by William F. Hufnagel, Esq. Both parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. JURISDICTION Local 48 is the bargaining agent for a bargaining unit of school bus drivers employed by Baker. Baker is a "public employer" as defined in 26 M.R.S.A 962(7). The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in 26 M.R.S.A. 968(5). FINDINGS OF FACT I. After Chapman was discharged on May 21, 1979, he applied for and was denied unemployment compensation by the deputy of the Maine Employment Security Commission (Commission). Chapman appealed the deputy's decision and theCommiss- Appeal Tribunal concluded he was entitled to unemployment benefits, Baker appea this decision and on October 1, 1979, the Commission ruled that Chapman was not entitled to benefits because he had been discharged for misconduct in connection with his work, finding that Chapman would have to repay an overpayment of $748.00 in unemployment compensation. Chapman has applied for a waiver of his obligation to make the repayment, and the Commission has not yet decided whether to grant the waiver. Nearly all of Baker's drivers who were laid-off for the summer of 1979 applied for and received unemployment compensation. These drivers have not been led -2- __________________________________________________________________________________ required to repay any of their unemployment benefits. 2. After the Law Court's decision in this proceeding on April 6, 1981, Local 48 on April 14, 1981 forwarded to Baker a detailed list of the backpay and expenses claimed by Chapman. Baker responded with a counterproposal, made an offer of rein- statement to Chapman, and asked for more information in a letter dated April 30, 1981. Chapman responded to Baker's letter of May 5, 1981, stating among other things that he declined the offer of reinstatement and that he was asking for inter- est at a rate of 18% on the backpay and expenses owed to him. The parties agree that,not including interest, Baker owes Chapman a sum of $2,545.09 in backpay and $756.00 in expenses, or a total of $3,301.09. DECISION Having carefully considered the facts, we conclude that Baker 1) must reimburse Chapman for the full amount of any unemployment compensation which Chapman is re- quired to repay, and 2) is required to pay interest in accordance with our standard formula on the backpay and expenses owed to Chapman. One of our fundamental responsibilities in fashioning a remedial order pursu- ant to 26 M.R.S.A 968(5)(c) is to seek '' 'a restoration of the situation, as nearly as possible, to that which would have obtained' but for the unfair labor practice." Caribou School Dept. v. Caribou Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177 194 (1941). The purpose of our previous Order directing that Chapman be reinstated and made whole for any loss of earnings obviously was to restore Chapman to the position he would have been in but for his unlawful discharge. In light of our duty to seek to restore the situation, there is no question but that Baker must reimburse Chapman if he is required to repay the $748.00 in un- employment compensation. Had Chapman not been unlawfully discharged on May 21, 1979, he would have been eligible to receive unemployment benefits; Baker's other bus drivers received unemployment compensation during the summer of 1979 and have not been required to repay their benefits. Thus, but for the prohibited practice Chapman would not be faced with the possibility of having to repay his unemployment compensation. If Chapman is required to repay all of his compensation, he will suffer a loss of $748.00 as a result of his unlawful discharge. In order to make -3- __________________________________________________________________________________ Chapman whole, we will order Baker to reimburse Chapman immediately if his re- quest for a waiver is denied and he is required to repay his unemployment benefits. Since Chapman has had the use of this money throughout this dispute, no interest on the sum is due if Baker reimburses Chapman immediately upon repayment of the corn- pensation by Chapman. If Baker fails to reimburse Chapman immediately, however, then interest on the amount owed Chapman will accrue in the usual fashion, as more fully explained infra. We also conclude that, in order to make Chapman whole, Baker is required to pay interest on the backpay and expenses, as was directed in our previous Order. Baker's argument is that Local 48 or Chapman waived Chapman's right to interest by failing to comply strictly with the time provisions in the Order. The Order provides that 20 days after the appeal period of the Order has expired or after a Superior Court ]udgment enforcing the Order in whole or in part, Local 48 was to submit Chapman's claims for backpay and interest to Baker. Such claims were not submitted, however, until after the Law Court's April 6, 1581 decision. Local 48 argues that because Baker's appeal of the Superior Court ]udgment stayed execution of the judgment pending review by the Law Court, submission of Chapman's claims after the Law Court's decision amounted to substantial compliance with the Order. While Local 48 and Chapman did not strictly comply with the provisions of the Order, we conclude that they were in substantial compliance and that Baker was not prejudiced by the fact it did not receive the claims until after the Law Court' decision. Local 48's argument that the appeal stayed execution of the Superior Court judgment is correct; Rule 62 of the Maine Rules of Civil Procedure stays execution of such a judgment pending its review by the Law Court, See, e.g., Lisbon School Committee v. Lisbon Teachers Association, A.2d____ (Me. Dec. 5, 1981), The judgment enforcing our Order thus was not enforceable during the appeal to the Law Court, and Baker was not obligated to comply with the Order. Since the Super- ior Court judgment was not enforceable and since our Order did not make any reference to the possibility of an appeal to the Law Court, we find that Local 48's belief __________ 1. Baker's contention that this Board is not authorized to grant unemployment benefits is misplaced. We of course are not granting unemployment benefits but are directing that Chapman be made whole for any losses suffered as a7 result of his unlawful discharge. -4- _________________________________________________________________________________ that Baker's appeal extended the time for submitting the claims until after the Law Court had decided the case was based on a good faith, reasonable interpreta- tion of the Order, and that submission of the claims after the Law Court's deci- sion amounted to substantial compliance with the Order. Moreover, we do not see that Baker suffered any prejudice as a result of the "late" submission of the claims, Baker could have tolled its backpay liability at any point during this dispute simply by offering to reinstate Chapman; submission of the backpay and interest claims of course would not toll Baker's liability in the absence of an offer of reinstatement. In short, we conclude that Chapman's right to interest on the backpay and expenses owed to him was not waived, and that Baker is required to pay the interest in accordance with our standard formula. In order to expedite this matter, we have determined in the Appendix to this decision that $837.47 in interest will be owed to Chapman as of January 31, 1982. This figure was computed in accordance with our standard formula, as set forth in Council 74, AFSCME v. City of Bangor, MLRB No. 80-41 (Sept. 24, 1980). Thus, loss of pay was computed, based on the figures agreed to by the parties, for each separate calendar quarter or portion thereof during the period from the unlawful discharge to the date of the offer of reinstatement. Since the record does not show when Chapman incurred the $756.00 in expenses, we allocated expenses equally over the 9 quarters for which backpay is owed. Interest was computed as of the last day of each calendar quarter on the total amount then due and owing at the adjusted prime interest rate as de- termined by the United States Secretary of the Treasury. That rate was 6% per annum from February 1, 1978 to January 31, 1980, and 12% from February 1, 1980 to January 31, 1982. The rate will be 20% per annum as of February 1, 1982. Adding the $837.47 in interest to the $3,301.09 in backpay and expenses agreed upon by the parties, we find that Baker will owe Chapman a total of $4,138.56 as of January 31, 1982. We will order Baker to pay this amount to Chapman as of January 31st. Failure by Baker to pay any portion of this sum to Chapman by January 31st will mean that interest at a rate of 20% per annum will begin accruing on the unpaid balance as of February 1, 1982, to be computed in accordance with the procedures used in this decision and order. -5- __________________________________________________________________________________ ORDER On the basis of the foregoing findings of fact and decision, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. S 968(5), it is ORDERED that Baker Bus Service, Inc.: 1. Reimburse Prescott Chapman immediately if Chapman is required to repay any of his unemployment compensation received in 1979. 2. Pay Prescott Chapman interest totalling $837.47 and back- pay and expenses totalling $3,301.09 by January 31, 1982. Dated at Augusta, Maine this 25th day of January, 1982. MAINE LABOR RELATIONS BOARD /s/________________________________ Donald W. Webber Alternate Chairman /s/________________________________ Don R. Ziegenbein Employer Representative /s/________________________________ Harold S. Noddin Alternate Employee Representative -6- ________________________________________________________________________________ APPENDIX Case No. 79-70 BACKPAY EXPENSES INTEREST TOTAL QUARTER OWED OWED OWED OWED 4/1/79 - $265.80 $ 84.00 $ 349.80 x 1.5% = 5.25 $ 355.05 6/30/79 7/1/79 - 9/30/79 249.10 84.00 355.05 +333.10 688.15 x 1.5% = 10.32 698.47 10/1/79 - 12/31/79 586.54 84.00 698.47 +670.54 1,369.01 x 1.5% = 20.54 1,389.55 1/1/80 - 1/31/80 112.75 28.00 1,389.55 +140.75 1,530.30 x .5% = 7.65 1,537.95 2/1/80 - 3/31/80 518.14 56.00 1,537.95 +574.14 2,112.09 x 2% = 42.24 2,154.33 4/1/80 - 9/30/80 304.96 84.00 2,154.33 +388.96 2,543.29 x 3% = 76.30 2,619.59 7/1/80 - 9/30/80 120.30 84.00 2,619.59 +204.30 2,823.89 x 3% = 84.72 2,908.61 10/1/80 - 12/31/80 189.11 84.00 2,908.61 +273.11 3,181.72 x 3% = 95.45 3,277.17 1/1/81 - 3/31/81 183.72 84.00 3,277.17 +267.72 3,544.89 x 3% =106.35 3,651.24 4/1/81 - 6/30/81 14.62 84.00 3,651.24 +98.62 3,749.86 x 3% =112.50 3,862.36 7/1/81 - 9/30/81 - - 3,862.36 x 3% =115.87 3,978.23 10/1/81 - 12/31/81 - - 3,978.23 x 3% =119.35 4,097.58 1/1/82 - 1/31/82 - - 4,097.58 x 1% = 40.98 4,138.56