STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 80-24
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LOCAL 1599, INTERNATIONAL )
ASSOCIATION OF FIREFIGHTERS, )
)
Complainant, )
)
v. )
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CITY OF BANGOR ) DECISION AND ORDER
)
and )
)
JOHN PERRY, in his capacity )
as Personnel Director of the )
City of Bangor, )
)
Respondents. )
_______________________________)
On January 15, 1980, Local 1599 of the International Association of Fire-
fighters (Local 1599) filed a prohibited practice complaint alleging that the
City of Bangor and Personnel Director John Perry (City) violated 26 M.R.S.A.
964(l)(A), (B), (C) and (E) by assisting employees in withdrawing from the
union and by negotiating directly with the employees. The City filed an
answer to the complaint on February 5, 1980, denying that it had committed any
prohibited practices.
A pre-hearing conference on the case was held February 19, 1980,
Alternate Chairman Donald W. Webber presiding. On February 27, 1980,
Alternate Chairman Webber issued a Pre-Hearinq Conference Memorandum and
Order, the contents of which are incoroorated herein by reference.
A hearing on the case was held on March 12, 1980, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Harold S. Noddin. Local 1599 was represented by
Phillip D. Buckley, Esq., and the City by Malcolm E. Morrell, Jr., Esq.
Full opportunity was given to adduce evidence and to examine and cross-examine
witnesses. Both parties filed post-hearing briefs, which have been considered
by the Board.
JURISDICTION
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
1. Local 1599 is the bargaininq agent within the meaning
of 26 M.R.S.A. 968(5)(B) for a bargaining unit of
Firefighters, Lieutenants, Captains, Dispatchers, and
Mechanics emploved by the Bangor Fire Department. The
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City of Bangor and Personnel Director John Perry are
public employers as defined in 26 M.R.S.A. 962(7).
2. Local 1599 and the City have negotiated a number of
collective bargaining agreements for the Fire Depart-
ment bargaining unit. In October, 1979, negotiations
began for an agreement to succeed a contract due to
expire December 31, 1979.
3. Throughout negotiations for the successor contract,
the City maintained the position that the Captains and
Lieutenants should be excluded from the bargaining
unit. The City felt that these officers were super-
visors of the other employees in the unit, and that
the supervisors and rank-and-file employees should not
be included in the same baraainino unit. In October,
1979, the City petitioned the Board to exclude the
Captains and Lieutenants from the unit. A Board
hearing examiner denied the petition, and the Board
affirmed his decision on procedural grounds on July
18, 1980 in Case No. 80-A-03.
4. From the outset of negotiations, many of the Captains
and Lieutenants were dissatisfied with Local 1599's
wage proposals. At a union meeting prior to the
commencement of negotiations, the members of the Local
voted to seek an across-the-board wage increase, rather
than a percentage increase which the Captains and
Lieutenants believed would be of greater benefit to
them. The Captains and Lieutenants numbered only about
20 employees in a bargaining unit of over 100 employees,
however, and were bound by the desires of the majority.
5. Immediately after the union meeting on contract proposals,
some of the Captains and Lieutenants began discussing
the possibility of getting out of the bargaining unit.
In late November, 1979, Captain Edson Arnold had discus-
sions with several officers about the officers' status
in the unit. As a result of these discussions, Arnold
decided to call a meeting of officers for the evening
of November 26th. As Arnold contacted the officers to
tell them of the meeting, he was asked a number of
questions about the effect that withdrawal from the unit
could have on the officers' retirement plan and other
benefits. Arnold did not know the answers to these
questions, and accordingly decided to contact Personnel
Director Perry in order to get some answers.
6. Arnold called Perry the morning of November 26th, ask-
ing if Perry would meet with Arnold and several other
officers to answer some questions the officers had.
Perry agreed to meet at the central fire station. About
an hour later, Perry, along with the Chief of the Fire
Department and an Assistant Chief, met with Arnold
and 4 other officers. Arnold told Perry that an officers'
meeting was planned for that eveninn, and that the
officers wanted some questions answered concerning the
officers' status if they got out of the union. The
officers then proceeded to ask Perry questions about
their retirement plan, how the officers would be treated
as nonunion employees, and how grievances would be handled.
Perry responded by saving in essence that the City would
not tamper with the 20-year retirement plan, and that
the officers would be treated the same as all other non-
union City employees. The officers also asked Perry how
a petition withdrawing the officers from the union should
be worded, and what the officers should do with the peti-
tion once it was signed. Perry suggested some wording for
the petition, and said that the petition should be given
to Local 1599 and to him.
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7. Immediately after the meeting, which lasted approximately
one-half hour, the 5 officers decided on the wording of
the withdrawal petition, chosing language similar to that
suggested by Perry. One of the Captains then typed two
petitions, one for the Captains and one for the Lieuten-
ants. Both petitions state that the Captains and Lieu-
tenants wish to no longer be represented by Local 1599
after expiration of the contract on December 31, 1979.
8. All of the Captains and Lieutenants attended the evening
meeting on November 26th. The officers who were on duty
that evening received permission to attend the meetinq
from the commanding officer. No City officials, including
the Chief and the Assistant Chiefs, were present at the
meeting. Arnold announced that he and the other officers
had talked to Perry, and a discussion ensued about the
issues that had been raised with Perry. At the end of the
meeting, most of the officers signed the petitions. Arnold
showed the petitions to Perry at his home that evening
after the meeting, and gave a copy to the President of
Local 1599 within a few days after the meeting.
9. Several days after the November 26th meetings, Arnold came
to Perry's office to ask how the officers could stop hav-
ing union dues deducted from their paychecks. Perry stated
that under Article 3 of the contract, the officers could
terminate their dues deductions by giving written notice
to the Personnel Director within 30 days prior to the ex-
piration date of the contract. Arnold asked if Perry would
type the written notices for him because Arnold did not have
typing facilities. Perry agreed to do so. He drafted a
notice stating "Effective with the expiration of the pres-
ent union contract, please cancel my deduction for union
dues," and gave the notice to his secretary to tvne.
10. On or about the lst or 2nd of December, a Lieutenant was told
by an Assistant Chief to go to the Personnel Office at City
Hall to pick up an envelope. The envelope contained copies
of the dues withdrawal notice orepared by Perry. The Lieuten-
ant put a stack of the notices in the Captain's Room of the
central fire station. Between December 3rd and 5th, most of
the Captains and Lieutenants signed notices. The signed
notices were given to the President of Local 1599 and to Perry,
and the City ceased deducting dues from the signers' paychecks.
DECISION
Local 1599 charges that the City violated Sections 964(l)(A), (B), (C)
and (E) of the Act by 1) advising and assisting the emplovees in the prepara-
tion of the withdrawal petitions, 2) meeting with the employees and bargaining
over wages, benefits and working conditions, 3) permitting the on-duty
employees to attend the November 26th officers' meeting where the withdrawal
petitions were signed, and 4) drafting and typing the notices terminating the
employees' dues deductions. We find that none of these charges have merit,
and dismiss the complaint.[fn]1
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1. We hereby dismiss the allegations that Section 964(1)(C) has been
violated. That Section is directed at instances where the employer has
obtained such a degree of control over the union, by assisting or
supporting the union, that the employer could be said to "sit on both
sides of the bargaining table." NLRB v. Power Regulator Co., 355 F.2d
506, 508 (7th Cir. 1966); see also Winthrop Educators Association v.
Winthrop School Committee, MLRB No. 80-05 at 7-8 (Feb. 8, 1980).
There is no evidence of any such support, involvement with, or domination
of Local 1599 or any other employee organization by the City.
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1. The November 26th meetings. The law is settled that an employer may
not "lend more than minimal support and approval" to employee efforts to
remove the union as an employee representative. Poly Ultra Plastics, Inc.,
231 NLRB 787, 790 (1977). Thus, "the extent of the employer's participation
in the process" determines whether the employer has violated the Act.
Jimmy-Richard Co., 210 NLRB 802, 803 (1974), enforced sub nom. Amalgamated
Clothinq Workers of America v. NLRB, 527 F.2d 803, 806 (D. C. Cir. 1975).
Anything more than minimal solicitation, support or assistance in the
initiation, signing or filing of a petition seeking to remove an employee
representative interferes with the employees' guaranteed rights and is a
prohibited practice. See, e.g., Plache Toyota, Inc., 215 NLRB 395 (1974).
We cannot say that the City lent more than minimal assistance or approval
to the officers' efforts to prepare the withdrawal Petitions and get the
petitions signed. The record does not show that the City instigated the
officers' movement to withdraw from the Local. It is true that the City
wanted to remove the Captains and Lieutenants from the bargaining unit, and
was actively pursuing that goal in contract negotiations as well as by way of
a unit determination petition before the Board. However, the record shows
that the officers' desire to withdraw from the Local stemmed, not from any
solicitation by the City, but solely from their dissatisfaction with the
Local's across-the-board wage proposals. The officers favored a percentage
increase, and wished to get out of the union because they apparently believed
they could better advance their interests on their own. The attempt to with-
draw from the Local was initiated by Captain Arnold in late November, 1979,
when he talked to several other officers about withdrawing from the unit, and
then called an officers' meeting for the evening of November 26th. In short,
we think it entirely coincidental that there were parallel efforts by the City
and some of the officers to get the Captains and Lieutenants out of the unit.
Nor do we think that City Administrator Perry provided more than minimal
assistance to the officers' efforts at the November 26th morning meeting.
That meeting was initiated by Arnold, who called to ask if Perry would meet
with some officers to answer some questions. The record shows that Perrv did
not know that the officers were thinking about withdrawing from the Local
until he was so informed when he arrived at the meeting. There Perry
responded to questions from the officers about how a withdrawal petition
should be worded, and about what the employees should do with the petition
once it was signed. Perry suggested some wording for the petition, and said
that the petition should be given to Local 1599 and to him. Following the
meeting, the officers adopted much of the wording suggested by Perry, and
proceeded to type separate petitions for the Captains and the Lieutenants.
In providing this assistance, Perry was not improperly soliciting the
officers either to prepare or sign the petitions, or unduly supporting the
officers' effort to get out of the Local. The officers voluntarily decided
to prepare the petitions and try to get them signed before Perry was invited
on the scene, and Perry's assistance was too minimal to be violative of the
employees' Section 963 rights.
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Our holding is consistent with federal precedent. For example, in Jimmy
Richard Co., supra, employees asked the plant manager how to get out of the
union. The manager advised each employee to sign a form and deliver it to
the person who had obtained the employee's signature on a union card. The
employees asked the manaaer to prepare the form, which he did, preparing a
letter and having a secretary type it. The employees then signed the letters.
The National Labor Relations Board affirmed the administrative law judge's
holding that
"[w]here, as here, employees initiate the requests to withdraw
and the employer returns the letters to the employees, so that
they can deliver them to the Union, and does not keep copies
for its files, the fact that the resignations were prepared or
typed by the employer does not make its actions illegal."
210 NLRB at 803. There are many other cases which hold that similar assis-
tance by the employer, when initiated by the employees, is lawful. See, e.g.,
Poly Ultra Plastics, Inc., supra; North American Aviation, Inc., 163 NLRB 863,
866, 870 (1967).
Any "assistance" provided by the City when the commanding officer at the
Fire Department allowed the on-duty Captains and Lieutenants to attend the
November 26th officers' meeting also was too minimal to constitute a
prohibited practice. There is no evidence that the commanding officer
encouraged or solicited the Captains and Lieutenants to attend the meeting
and sign the withdrawal petitions, or, for that matter, that the officer even
knew what the meeting was about. In the absence of any evidence that the City
instigated the meeting or encouraged the officers to attend the meeting, we
cannot say that the mere fact that a City representative allowed on-duty
employees to attend amounts to unlawful assistance or support. The evidence
simply does not support the allegation.
Finally, the City did not breach its duty to bargain in good faith when
Perry met with the officers on November 26th and answered questions about the
retirement plan and grievances. While any attempt to bypass the bargaining
agent and negotiate directly with the employees is of course evidence of bad
faith bargaining, see, e.g., Sanford Highway Unit v. Town of Sanford, MLRB
No. 79-50 at 12 (April 5, 1979), nothing which occurred at the meeting can be
construed as an attempt to negotiate with the officers. Perry merely told
the officers that the City could not change the officers' retirement plan,
and that the officers would be treated as all other non-union City employees
if they withdrew from the Local; neither Perry nor the employees attempted to
bargain about any subject. The fact that Local 1599 and the City were at the
time engaged in bargaining did not preclude Perry from meeting with the
officers and answering their questions, without prior notice to Local 1599.
Since Perry did not attempt to strike any deal or bargain any issue with the
officers, the City is not guilty of a Section 964(1)(E) violation.
2. Preparation of the notices stopping dues deductions. Perry's assis-
tance in preplaring the notices terminating the officers' dues deductions also
was too minimal to constitute a violation of Section 964(1)(A) or fB). Again,
this assistance was requested by Arnold, who asked Perry to type up notices
so that the officers could stop having dues deducted from their paychecks.
There is no evidence that Perry initiated the idea that the officers should
stop paying dues,
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solicited any officer to stop his dues deductions, or lent any support to the
effort other than drafting and typing the notice. As previously noted, that
type of assistance, when requested by the employees and when the employer
does not attempt to solicit any employee to sign the notice, usually is held
to be lawful. See, e.g., Jimmy Richard Co., supra; North American Aviation,
Inc., supra. Moreover, since Article 3 of the contract provided that dues
revocation notices should be given to the Personnel Director, it was proper
for Perry to prepare the notice, when requested by an employee, so that the
notice would state with sufficient clarity that the employee signing it wished
to stop his dues deductions.
We do not infer that Perry was soliciting the officers to sign the
notices from the fact that multiple copies of the notice were provided.
Since Perry knew that most of the Captains and Lieutenants were attempting to
withdraw from the Local, he reasonably and properly provided enough copies of
the notice for all officers who wished to sign. Neither does the fact that
the City may have allowed copies of unsigned notices to remain in the
Captain's Room for several days amount to unlawful assistance. The officers,
not a city official, placed the notices in the Room, and there is no evidence
that any city official knew that the notices were there.
The minimal nature of the assistance provided by city officials distin-
guishes this case from Local 1458, AFSCME v. City Council of Augusta, MLRB
Nos. 74-09, et al. (April 22, 1974). There the employer, at the request of
an employee, provided a typewritten petition for the employees to sign in an
attempt to decertify the union. After the employee obtained a number of
signatures, he took the petition to the City Manager's secretary, who provided
an official MLRB decertification petition and proceeded to fill in all
information required by the form, attaching the typewritten petition to the
form. The Board held that such participation in the decertification process,
which went beyond merely providing ministerial assistance, was unlawful.
The degree of employer participation also distinguishes the present case
from the cases cited by Local 1599. In Antonino's Restaurant, 246 NLRB No.
136 (1979) and Lockwoven Co., 245 NLRB No. 178 (1979), enforced 104 LRRM 2652
(8th Cir. 1980), the employers actively suggested that employees withdraw
from the union and solicited and assisted employees to withdraw. While it
obviously would have been a far wiser course of action for Perry to decline
to provide any assistance to the officers, we cannot say that his minimal
assistance, requested by the officers in the pursuit of their predetermined
objectives, violated the Act.
We will order that Local 1599's complaint be dismissed.
ORDER
On the basis of the foregoinq findings of fact and by virtue of and
pursuant to the powers granted to the Maine Labor Relations Board bv 26
M.R.S.A. 968(5), it is ORDERED:
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That Local 1599's prohibited practice complaint
filed January 15, 1980 is dismissed.
Dated at Augusta, Maine this 6th day of November, 1980.
MAINE LABOR RELATIONS BOARD
/s/____________________________________
Edward H. Keith
Chairman
/s/____________________________________
Don R. Ziegenbein
Employer Representative
/s/____________________________________
Harold S. Noddin
Alternate Employee Representative
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